Background
A jury found the appellant guilty of sexually assaulting a 16-year-old complainant who was spending the summer with him and his girlfriend, now his spouse. The complainant alleged non-consensual sexual activity, including penetration. The appellant initially denied any sexual activity in a police statement but testified at trial that limited, consensual sexual contact had occurred. His semen was found on the complainant’s bathing-suit top.
The appellant was acquitted of the charged offence involving choking, suffocating, or strangling during a sexual assault but convicted of the lesser included offence of sexual assault. On appeal, he alleged that a juror’s past association with his spouse created a reasonable apprehension of bias. He also argued that, after replaying the complainant’s and appellant’s testimony during deliberations, the trial judge was required to remind the jury of the principles from R. v. W.(D.). Both parties introduced fresh evidence concerning the juror’s prior connection to the spouse.
The Court’s Holding
The Court of Appeal admitted the fresh evidence but held that it did not establish a real likelihood or probability of juror bias. The prior association arose at least 15 years before trial, when the spouse was an adolescent; the appellant was not involved in those events; and allegations of more recent hostility were speculative or unsubstantiated. Considered alongside the presumption that jurors act impartially and follow their instructions, the evidence did not show that an informed, reasonable person would conclude the juror was more likely than not unable to decide fairly.
The Court also held that there is no automatic rule requiring a trial judge to repeat W.(D.) instructions whenever evidence is replayed. Although the first step of the judge’s original W.(D.) instruction was awkwardly worded and should be avoided because it could suggest an improper burden on the accused, the charge as a whole correctly conveyed the presumption of innocence, the Crown’s burden, and the reasonable-doubt standard. The jury had the written charge during deliberations, and its request disclosed no confusion about the governing law. Declining to reinstruct therefore was not reversible error, and the conviction appeal was dismissed.
Key Takeaways
- A prior association between a juror and someone connected with a case does not itself establish a reasonable apprehension of bias; cogent evidence must show a real likelihood or probability that the juror would not decide fairly.
- Trial judges retain contextual discretion over whether to repeat W.(D.) principles after replaying testimony; reinstruction is not automatically required.
- An imperfect W.(D.) formulation will not necessarily invalidate a verdict if the charge, considered as a whole, leaves no realistic possibility that the jury misunderstood the burden or standard of proof.
Why It Matters
The decision clarifies the demanding evidentiary threshold for attacking a conviction based on a juror’s previously undisclosed association, particularly in a small community where incidental connections may be common. Speculation about hostility or transferred bias will not overcome the strong presumption of juror impartiality.
It also confirms that appellate review of jury instructions is functional and contextual. Courts will examine the entire charge, the timing and nature of a jury’s request, and the instructions available during deliberations rather than treating the replay of evidence as automatically triggering a new legal instruction.