R. v. M.R.H.

Karakatsanis J. — The appeal is allowed, substantially for the reasons of Mr. Justice Savage (2019 BCCA 39, 373 C.C.C. (3d) 464).

As for the three additional issues raised by the respondent for the first time in this Court, we are not satisfied that they require a new trial.

First, we are satisfied that no limiting instruction was required on the issue of character evidence, as there was no real risk of propensity reasoning in this case.

Second, we are of the view that no limiting instruction was necessary regarding prior consistent statements, because the statements were elicited early in the trial, were relied upon by the defence and not by the Crown, and there was no real risk in the circumstances of this case that they would be used as self-corroboration.

Finally, with respect to the interpretation of the phrase “single transaction” in s. 581(1) of the Criminal Code , R.S.C. 1985, c. C-46 , we agree that the Crown practice of drafting a single count of an indictment to capture multiple distinct incidents creates the risk that the accused may be convicted without the jurors’ unanimous agreement on any one underlying incident. We leave for another day whether the law supports such a practice and whether jury unanimity is required in such circumstances. In essence, the jury in this case asked whether unanimity on the first incident was sufficient to convict. It is not necessary to deal with the issue in this case, because it is clear from the jury’s question and the response it received, that the jurors unanimously agreed that the first incident had been proven. Here, there is no risk of an injustice and the issue need not be considered (Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 22).

Therefore, the appeal is allowed. The order of the Court of Appeal is set aside. We restore the respondent’s conviction for sexual assault and the judicial stay on the count of sexual interference.