Summary

38547

Her Majesty the Queen v. M.R.H.

(B.C.) (Criminal) (As of Right)

(Publication ban in case)

Keywords

Criminal law - Charge to jury - Criminal law – Charge to jury – Whether the trial judge erred in law by (a) failing to adequately explain that the indictment charged two offences which covered a period of time during which two separate incidents were alleged to have occurred, (b) failing to clarify the question from the jury and give counsel an opportunity to make further submissions, (c) failing to correctly answer the question from the jury, and by (d) failing to re-instruct the jury on the issue of credibility.

Summary

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(Publication ban in case)

The respondent, M.R.H., was convicted of sexual interference and sexual assault in relation to two discrete incidents involving his niece. The indictment set out two counts and each count encompassed the entire time period in which the two distinct events were alleged to have occurred. A majority of the Court of Appeal allowed the appeal and ordered a new trial. In its view, the trial judge erred in three respects. First, his charge to the jury was confusing in relation to the way in which the indictment was written. Second, in responding to a question posed by the jury, he engaged in a confusing colloquy with the foreperson and did not clearly answer the question. Third, the trial judge failed to provide further instructions on credibility, which was the main issue at trial, given that the jury’s question raised the issue of whether it could reject the complainant’s evidence about one of the incidents but accept her evidence about the other. Savage J.A., dissenting, would have dismissed the appeal.