COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. M.R.H.,

2019 BCCA 39

Date: 20190205

Docket: CA44346

Between:

Regina

Respondent

And

M.R.H.

Appellant

Restriction on Publication:
A publication ban has been
mandatorily imposed under
s. 486.4 of the
Criminal Code
restricting the publication,
broadcasting or
transmission in any way of evidence that could identify a complainant or
witness,
referred to in this judgment by the initials J.S.
This publication ban applies
indefinitely unless otherwise ordered.

Before:

The
  Honourable Madam Justice Garson

The
  Honourable Mr. Justice Harris

The
  Honourable Mr. Justice Savage

On appeal from:  An order of the Supreme Court of British
Columbia, dated
April 12, 2016 (
R. v. M.R.H.
, New Westminster Registry
X078504).

Counsel for
  the Appellant:

B.V. Bagnall

Counsel for
  the Respondent:

M.G. Scott

Place and
  Date of Hearing:

Vancouver, British Columbia

October 25, 2018

Place and
  Date of Judgment:

Vancouver, British Columbia

February 5, 2019

Dissenting
  Reasons by:

The
  Honourable Mr. Justice Savage

Written
  Reasons by:

The
  Honourable Madam Justice Garson (
page 19, para. 54
)

Concurred
  in by:

The
  Honourable Mr. Justice Harris

Summary:

The appellant was charged with two counts: (1) sexual
interference with the complainant between 2006 and 2011 at Surrey and Harrison
Hot Springs, and (2) sexual assault of the complainant during the same
time frame and at the same places. The sole issue at trial was credibility.
During its deliberations, the jury asked whether it could convict on the basis
of the first incident alone. The judge sought submissions from counsel before
answering the question, but when the jury returned it became clear that the
judge and counsel had misunderstood the question. The judge answered without
seeking further submissions and engaged in a colloquy with the foreperson and
the appellants counsel. The next day, the jury convicted the appellant on both
counts. On appeal, the appellant says the judge erred by not providing
sufficient instructions on credibility in his main charge or his response and
not clarifying the question or seeking further submissions from counsel before
answering. Held: appeal allowed per Garson J.A., concurred in by Harris J.A.
(Savage J.A. dissenting). Per Garson J.A.: The judge erred in (1) not
explaining to the jury that the Crown needed to prove only one of the incidents
for the jury to convict on both counts; (2) answering the question in a
confusing manner, without first clarifying it or seeking further submissions
from counsel; and (3) failing to re‑instruct on credibility, when
that was the sole issue and the jury question suggested it may have believed
the complainant regarding one incident and not the other when there was no
obvious rational basis for making differential credibility findings. The remedy
is a new trial.

Per Savage J.A. dissenting: the judge did not err in
his initial charge on credibility or in his answer to the jurys question. A
C.W.H. instruction was not necessary in the circumstances as there was no
realistic risk that the jury would have understood its task as choosing between
two contradictory versions of events. A recharge on credibility was not
required in response to the jurys question, as the question did not raise an
issue concerning assessment of credibility. The judge gave the legally correct
answer to the jurys question and thus there was no risk that the jury was left
with an erroneous view of the law. The judge heard submissions from counsel
after the question was asked and did not err in failing to seek further
submissions after the question was clarified.

Dissenting Reasons for
Judgment of the Honourable Mr. Justice Savage:

I.
Introduction

[1]

M.R.H. was charged
with one count of sexual assault and one count of sexual interference in
relation to two discrete incidents involving his niece J.S. Following a six‑day
trial before a judge and jury, he was convicted of both charges. He was
sentenced to 30 months in prison.

[2]

M.R.H. alleges the
trial judge erred in his instruction to the jury. He submits the trial judge
erred in providing insufficient instructions on the issue of credibility and in
failing to adequately answer the jurys question.

[3]

For the reasons that
follow I would dismiss the appeal.

II.
Background

[4]

J.S. alleged that M.R.H.
touched her sexually on two occasions, once at her grandmothers apartment when
she was in grade five, and once on a family camping trip when she was in grade
six. She told her mother about the incidents when she was in grade nine.

[5]

On March 31,
2016, M.R.H. was charged with one count of sexual assault contrary to s. 272
of the
Criminal Code
, R.S.C. 1985, c. C‑46, and one count of
sexual interference contrary to s. 151 of the
Criminal Code
, in
relation to the two incidents. Each count encompassed the entire time period in
which the two discrete events were alleged to have occurred. The charges read
as follows:

Count 1

[M.R.H.], from
the 28th day of October, 2006 to the 28th day of October, 2011, inclusive, at
or near Surrey and Harrison Hot Springs, in the Province of British Columbia,
did,
for a sexual purpose, touch, directly or indirectly, with a part of his body or
with an object, the body of J.S.
, a person under the age of fourteen years,
contrary to Section 151 of the Criminal Code.

Count 2

[M.R.H.],
from the 28th day of October, 2006 to the 28th day of October, 2011, inclusive,
at or near Surrey and Harrison Hot Springs, in the Province of British
Columbia,
did sexually assault J.S.
, contrary to Section 271 of the
Criminal Code.

[Emphasis
added.]

[6]

Three witnesses
testified at trial: the complainant J.S., the complainants mother and M.R.H.

[7]

The complainant gave
evidence about the two incidents underlying the charges. She testified that the
first incident occurred at her grandmothers apartment when she was in grade
five. She said M.R.H. came into her room while she was sleeping and rubbed her
arms, touched her vagina, digitally penetrated her and attempted sexual
intercourse. She said the second incident occurred on a family camping trip at
the end of her grade six year. She testified that M.R.H. attempted to force her
to perform oral sex on him while they were sharing a tent.

[8]

The complainants
mother testified generally as to the relationship between the complainant and M.R.H.,
and about the complainants visits to her grandmothers apartment and the
camping trip. She had no direct knowledge of the alleged incidents.

[9]

M.R.H. denied that
either of the incidents had occurred.

[10]

Given the
complainant and M.R.H.s conflicting version of events, credibility was the
main issue at trial. In his charge to the jury, the trial judge gave
instructions on the presumption of innocence, reasonable doubt, and
credibility. With respect to credibility, he gave the jury the following instruction
pursuant to
R. v. W.(D.)
, [1991] 1 S.C.R. 742:

If you believe
the evidence of [M.R.H.] that he did not touch the complainant in a sexual
manner at all, let alone as described by J.S., you must acquit him.

Even if you do
not believe his evidence, if it raises a reasonable doubt in your mind as to
whether he did what J.S. says at the condo owned by her grandmother and at
Harrison -- sorry, and at the Harrison camping trip, you must acquit him.

Finally,
even if you disbelieve him and find his testimony raises no reasonable doubt,
you must still acquit him if you find that the evidence tendered by the Crown
does not meet its burden of proving the elements of each offence on each
occasion set out in the indictment beyond a reasonable doubt.

[11]

The jury charge was
a consensus charge reached by a collaborative effort. The judge provided a copy
of his proposed charge to counsel, additions and changes sought by counsel were
incorporated into the charge, and all parties were content with the final
charge as drafted. Neither party objected to or raised any issue with the
charge as delivered.

[12]

After approximately
three hours of deliberation, the jury returned with a question. The question,
which was written,
appeared to be
as follows:

If
we believe the 1st incident, can we convict on this alone? Find him not guilty
on the 2nd [incident].

[13]

The judge recognized
that, as a matter of law, the answer to the question was yes. Counsel for M.R.H.
agreed. However, the judge thought the way the question was phrased suggested
the jury may need to be reminded of the principles of assessing credibility.
The judge invited submissions from counsel with respect to the answer.

[14]

Counsel for M.R.H.
expressed concern that if the jury rejected the complainants evidence on the
second incident, it would be problematic for the jury to accept her evidence on
the first incident since that meant she would have lied under oath. Counsel for
the Crown suggested the jury should be reinstructed on how to assess the
complainants credibility, but submitted as long as the jury understood the
law, it could assess credibility as it saw fit, including believing the
complainant on one incident but not the other.

[15]

The judge agreed it
was of some concern to him that the jury could reject the evidence of the
complainant with respect to the second incident, while at the same time fully
accepting her evidence on the first. He concluded he should reinstruct the jury
on credibility, but made clear that it was the jurys purview to accept or
reject the evidence. The judge remarked that he needed to be as balanced as I
can be and not reargue the defence case. Neither defence nor Crown counsel
objected to the answer proposed by the judge.

[16]

When the jury was
brought in to hear the answer to its question, the jury foreperson informed the
judge that the question the jury had actually asked was only:

If
we believe the 1st incident, can we convict on this alone?

The second part
of the question was written in faint pencil and the judge had assumed it was
part of the question, rather than a deliberate erasure. The jury foreperson
informed the judge otherwise.

[17]

The exchange between
the judge and jury went as follows:

THE COURT:
Members of the jury, I apologize for the delay in responding to the question
you posed, but it raised an issue I wanted to discuss with counsel and reflect
on the proper instruction to give. I did not want to do that in either haste or
without the benefit of counsels assistance. We have been able to speak about
that in your absence.

And
first of all, because the question, it appears somebodys pencil broke when the
question was written, I want to make sure I have it correctly. I am reading
from what you passed to me [as read in]:

If we believe the 1st incident, can we
convict on this alone? Find him not guilty on the 2nd . . .

--
and then it goes i-n-c-i, and I am assuming that should say incident.

JURY FOREPERSON: Your Honour, we withdrew the second part,
we
would just like to know if we are  can convict on the first incident alone for
both counts
.

[Emphasis
added.]

[18]

Without inviting
further submissions from counsel, the judge gave the following answer to the
jurys question:

THE COURT:
Well, the answer to that is a little bit different then. Yes, you may, but your
 your question has posed a little bit of a difficulty in terms of you may
convict on the evidence, if you find the constituent elements have all been
proven, but as I say, I may have misinterpreted, because now I see it is an
erasure. I just gathered that the pencil had run out of steam.

So
as a matter of law, if the Crown has proven beyond a reasonable doubt the
constituent elements of each of the offences, they need not prove both
incidents, one is sufficient. But I should carry on to say that if you are
having difficulty or rejecting the evidence of the complainant on the second
offence, that raises a bit of a problem in terms of reconciling the acceptance
of her evidence on one if you have rejected or raise a reasonable doubt -- or
there is a reasonable doubt raised in your mind on the second.

So I took your question to be that you
had reached different conclusions. If that is not the case, and I do not want
to go into the discussions you are having in the jury room, but I need to tell
you, I think, counsel, this is -- I am taken a bit by surprise by the
retraction of the second question.
But as a matter of law, the Crown needs
prove only one of the incidents, not both, for you to convict, and the two
separate charges relate to separate offences. One is of sexual interference,
the other is of sexual assault, and it is not incumbent upon the Crown, and I
had hoped my charge had made clear earlier, to demonstrate beyond a reasonable
doubt or prove beyond a reasonable doubt that each happened. One of them is
sufficient
.

[Emphasis
added.]

[19]

Neither counsel
raised any issue with the judges answer. The following day, the jury convicted
M.R.H. of both counts.

III.
On Appeal

[20]

The issues on appeal
are:

(1)    Did the trial judge provide
sufficient instructions to the jury on the issue of credibility?

(2)    Did the trial judge adequately
answer the jurys question?

IV.
Discussion
and Analysis

[21]

Appellate review of
jury instructions is governed by a functional and contextual approach. In
R. v. Alexander
,
2015 BCCA 484, Madam Justice Stromberg‑Stein succinctly set out the
approach to be taken in reviewing a jury charge. She said:

[110]    An
appellate court, when reviewing a jury charge, must consider the alleged error
in the context of the charge and the trial as a whole. A trial judge is allowed
flexibility in instructing the jury. The precise words used in the jury charge
are a matter of discretion for the trial judge and will depend on the
circumstances of the case. It is the overall effect of the instructions that
matters:
R. v. Araya
, 2015 SCC 11 at para. 39.

[111]    An
accused is entitled to a properly instructed jury, not a perfectly instructed
one. If perfection were the standard, no jury charge would pass appellate
review:
R. v. Jacquard
, [1997] 1 S.C.R. 314 at paras. 1‑2.

[112]    It
is the trial judges obligation to properly instruct the jury; however, it is
expected that counsel will assist the trial judge and identify aspects that may
be problematic in the charge. A failure to object to a jury charge is not
determinative; however, trial counsels position at trial is an important
factor to consider when evaluating complaints raised on appeal:
Jacquard
at paras. 35‑38;
R. v. Purchase
, 2015 BCCA 211 at paras. 3‑4.

[22]

Mr. Justice
Frankel, for the Court, endorsed this approach in
R. v. Hume
,
2016 BCCA 105 at para. 20. He emphasized that an appellate court must take
a functional approach and found assistance in the words of Mr. Justice
Doherty in
R. v. MacKinnon
(1999), 132 C.C.C. (3d) 545 (Ont. C.A.):

[27]      In
Jacquard
,
Lamer C.J.C. stressed that a functional approach must be taken when
assessing the adequacy of jury instructions. I take this to mean that
instructions must be tested against their ability to fulfil the purposes for
which they are given and not by reference to whether any particular approach or
formula has been used. By the end of the instructions, whatever approach is
used, the jury must understand:

     the factual issues
which had to be resolved;

the law to be applied to
those issues and the evidence;

the positions of the
parties; and

     the
evidence relevant to the positions taken by the parties on the various issues.

A.       Instruction on Credibility

[23]

M.R.H. submits that
the judge provided insufficient instruction on credibility. He does not argue
that anything anyone said to the jury at any point was wrong. He only says that
it was necessary for the judge to give an additional instruction to highlight
the importance of the concept of reasonable doubt as to credibility. Specifically,
he says that because the jury had to acquit if it did not believe the
complainant, the judge should have added to his
W.(D.)
instruction the
supplementary instruction suggested by Mr. Justice Wood in
R. v. C.W.H.
(1991), 68 C.C.C. (3d) 146 (B.C.C.A.), that [i]f, after a careful
consideration of all of the evidence, you are unable to decide whom to believe,
you must acquit (at 155). He says the judge erred in not providing a
C.W.H.

instruction in his jury charge.

[24]

The Crown submits
that the judges charge clearly explained the applicable principles regarding
assessing credibility and the burden of proof. It says there was nothing to
suggest the jury would have lost sight of the burden or standard of proof or
misunderstood its task as choosing between two contradictory versions of
events. It takes the position that a
C.W.H.
instruction was not
necessary in the circumstances.

[25]

This case parallels
W.(D.)
in that the jury received two contradictory versions of events. When reviewing
the adequacy of jury instructions in such cases, the question for this Court to
consider is whether, in substance, the trial judges instructions left the
jury with the impression that it had to choose between the two versions of
events:
R. v. Avetysan
, 2000 SCC 56 at para. 19. No
particular formulation of this principle is required so long as the charge,
when read as a whole, makes it clear that the jury could not have been under
any misapprehension as to the correct burden and standard of proof to apply:
W.(D.)
at 758. The jurys instruction must not be framed as an either/or choice
between the evidence of the Crown or the evidence of the defence.

[26]

I note that in
C.W.H
.
the trial judge did not instruct the jury either that the rule with respect to
reasonable doubt applied to the issue of credibility or that even if they
rejected the evidence of the appellant in its entirety, they must still be
satisfied beyond a reasonable doubt of the guilt of the appellant, on the basis
of the evidence which they did accept, before they could convict (at 154).
In this case, the trial judge did instruct the jury that the rule of reasonable
doubt applied to the issue of credibility and that they could acquit even if
they rejected the evidence of M.R.H. in its entirety.

[27]

M.R.H. also referred
us to the decision of this Court in
R. v. Thiara
, 2010 BCCA
415. In that case, the trial judge did not give the
C.W.H.
instruction
and was not faulted. The Court concluded that a
C.W.H.
instruction would
have been inappropriate in the circumstances of the case because even if the
jury had been unable to decide whom to believe, it still could have convicted
on some of the counts (at para. 26). Considered as a whole, the
instruction in
Thiara
was sufficient to impress upon the jurors that
they were not simply to choose a version of events, and that the onus and
burden of proof always remains with the Crown (at para. 29).

[28]

I agree with the
Crown that nothing in
Thiara
suggests that the
C.W.H.
instruction
should be given in any and every case in which credibility is decisive. This
Courts decision in
R. v. Howard
, 2017 BCCA 263, provides a
recent example where this Court held that the supplementary
C.W.H.
instruction was unnecessary because there was no realistic risk in the
circumstances that the jury would have been led to believe it had to make an
either/or decision between the evidence of the complainant and the accused
(at paras. 13‑15).

[29]

In this case, the
jury was not called upon simply to decide between the evidence of the
complainant and M.R.H. In my view, there is nothing to suggest that the jury
would have lost sight of the burden or standard of proof or would have understood
its task as choosing between two contradictory versions of events.

[30]

The jury was given
ample instruction on assessing credibility and the burden and standard of
proof. It was instructed that:

·

[M.R.H.]
does not have to prove anything. It is up to the Crown to prove its case on
each element of the offence beyond a reasonable doubt;

·

the
burden or onus o[f] proving the guilt of [M.R.H.] beyond a reasonable doubt
rests upon the Crown and never shifts. You must not find him guilty if you have
a reasonable doubt about his guilt after you consider all of the evidence as it
relates to the charge against him;

·

the
rule of reasonable doubt also applies to the issue of credibility or
reliability. You need not definitely decide on the reliability or credibility
of a witness or a group of witnesses. You need not fully believe or disbelieve
one witness or a group of witnesses. If you have a reasonable doubt as to the
guilt of [M.R.H.] arising from the reliability or credibility of the witnesses,
then you must find him not guilty;

·

they
could accept all, part, or none of a witnesss evidence;

·

the
case against [M.R.H.] rests entirely on the evidence of the complainant;

·

If
you believe the evidence of [M.R.H.]  you must acquit him. Even if you dont
believe his evidence, if it raises a reasonable doubt in your mind as to
whether he did what [the complainant] says  you must acquit him. Finally, even
if you disbelieve him and find his testimony raises no reasonable doubt, you
must still acquit if you find that the evidence tendered by the Crown does not
meet its burden of proving the elements of each offence  beyond reasonable
doubt;

·

I
remind you that the Crown must prove each of these ingredients beyond a
reasonable doubt. You must return a verdict of not guilty on the offence of
sexual assault if the Crown has not proven each of these ingredients beyond a
reasonable doubt. The same applies to count 1; and

·

[w]hen
deciding whether the accused is guilty or not guilty, you should not weigh the
theory or position of the Crown against the theory or position of the accused,
since it is always the duty of the Crown to prove the guilt of the accused beyond
a reasonable doubt before he can be convicted.

[31]

In this case, there
was no realistic risk that the jurors would think they had to choose between
two contradictory versions of events. The charge made clear that the burden of
proof was always on the Crown and that any reasonable doubt had to be resolved
in favour of the appellant, including a reasonable doubt based on credibility.
A
C.W.H.
instruction was not required in the circumstances.

[32]

I would not accede
to this ground of appeal.

B.       Answer to Jurys
Question

[33]

M.R.H. submits that the
trial judges answer to the jurys question was inadequate. He argues the judge
erred by failing to seek submissions from counsel after the clarification of
the question, and by not recharging the jury on credibility in response to the
question.

[34]

In response, the
Crown argues that the judges answer was clear, correct and comprehensive, and
did not leave the jury with an erroneous view of the law. The Crown says the
judge did not err in answering the question.

[35]

In
W.(D.)
, the
Supreme Court of Canada discussed the importance of clearly answering a jurys
question. It held that a jury question required a full, careful and correct
response, and that the answer should remind the jury of the instructions given
in the course of the main charge. The Court stated (at 759‑760):

When
a jury submits a question, it gives a clear indication of the problem the jury
is having with a case. Those questions merit a full, careful and correct
response. As well, the answer should remind the jury of its instructions given
in the course of the main charge. See
R. v. Desveaux
(1986),
26 C.C.C. (3d) 88 (Ont. C.A.), at p. 93, where it was said:

Questions
from a jury manifest their concern and indicate their desire for direction on a
particular issue. The trial judge should read the question to counsel and
obtain their submissions as to the response that should be made. It is then
incumbent on the trial judge to answer the question in a complete and
reasonably detailed manner. It is unfair to the parties and the jury to attempt
a short form answer to a problem that is obviously presenting difficulties. The
definitions requested had been adequately set out early in the charge. However,
memories are short and much had intervened in the way of directions and
recharges before the question was submitted. The original instructions should
have been repeated in the response.

[36]

The Supreme Court of
Canada also discussed the importance of responses to jury questions in
R. v. Naglik
,
[1993] 3 S.C.R. 122, and
R. v. S.(W.D.)
, [1994] 3
S.C.R. 521. In
Naglik
, the Court noted that when a jury asks a question
about an issue addressed in the main charge, it shows the jury did not
understand or remember part of the main charge. Therefore, answers to jury
questions are extremely important and carry greater influence than instructions
in the main charge. Chief Justice Lamer explained (at 139):

Answers to questions from the jury are
extremely important, and carry influence far exceeding instructions given in
the main charge. If the jury asks a question about an issue addressed in the
main charge, it is clear that they did not understand or remember that part of
the main charge, and it is also clear that they must exclusively rely on the
answer given by the trial judge to resolve any confusion or debate on the point
which may have taken place in the jury room during their deliberations up to
that point.

[37]

In
S.(W.D.)
,
the Court again emphasized the importance of giving correct and comprehensive
responses to jury questions. It held that since a jury question identifies the
issue upon which the jury needs direction, the recharge must be correct and
comprehensive. It said (at 530):

There can be no doubt about the
significance which must be attached to questions from the jury and the fundamental
importance of giving correct and comprehensive responses to those questions. With
the question the jury has identified the issues upon which it requires
direction. It is this issue upon which the jury has focused. No matter how
exemplary the original charge may have been, it is essential that the recharge
on the issue presented by the question be correct and comprehensive. No less
will suffice. The jury has said in effect, on this issue there is confusion,
please help us. That help must be provided.

[38]

In
R. v. Daley
,
2007 SCC 53, the Supreme Court of Canada explained the role of an appellate
court in reviewing a jury charge. It held that a reviewing court should
consider the general sense which the words used have likely conveyed to the
jury and affirmed the proposition from
R. v. Jacquard
, [1997]
1 S.C.R. 314 at para. 2, that a trial judges jury charge will not be held
to a standard of perfection (at para. 31). It held:

[31]      In
determining the general sense which the words used have likely conveyed to the
jury, the appellate tribunal will consider the charge as a whole. The standard
that a trial judges instructions are to be held to is not perfection. The
accused is entitled to a properly instructed jury, not a perfectly instructed
jury: see
Jacquard
, at para. 2. It is the overall effect of the
charge that matters.

[39]

In
R. v. Brydon
,
[1995] 4 S.C.R. 253, Chief Justice Lamer, writing for the Court, provided two
questions for an appellate court to consider in assessing whether a trial judges
charge or recharge on burden of proof amounted to reversible error. First, the
court must consider whether the impugned instruction is inconsistent with what
was said in the initial charge or is simply erroneous standing by itself (at para. 19).
Second, the court should ask whether, after placing the inconsistency or error
in the context of the charge as a whole, there is a reasonable possibility that
the jury might have been misled by those instructions (at para. 19). In
that case, the Court concluded that there was a reasonable possibility that
the trial judges erroneous instruction may have misled the jury (at para. 25).

[40]

The Courts holding
in
Brydon
makes clear that for a judges answer to a jury question to be
a reversible error, it must be erroneous and capable of misleading the jury. As
explained by Justice Cromwell in
R. v. Layton
, 2009 SCC 36,
albeit in dissent, the focus on an appeal concerning the answer to questions
from the jury is whether the jury was left with an erroneous view of the law. Justice
Cromwell noted that even in
S.(W.D.)
, where the Court emphasized the
importance of a comprehensive response to jury questions, the conviction was
overturned due to the judges legally erroneous instructions, not the failure
to be as helpful as possible. Justice Cromwell explained:

[41]
Of course, questions from
the jury must be answered fully and properly to the extent possible: see, for
example,
R. v. S. (W.D.)
, [1994] 3 S.C.R. 521, at
pp. 528‑31. But the focus on appeal remains on whether the jury was
left with an erroneous view of the law
. In
S. (W.D.)
, the
majority of this Court found that the recharge in that case contained a legal
error and that its effects were not cured by the correct instructions
previously given during the main charge.
It is important to remember,
however, that the case turned on legally erroneous instructions, not on the
trial judges failure to be as helpful as possible
.

[Emphasis added.]

[41]

In
R. v. Kahnapace
,
2010 BCCA 227 at para. 50, this Court discussed the importance of
clarifying unclear or ambiguous questions from the jury. It held that failure
to clarify such questions may amount to reversible error. This Court also
considered the effect of ambiguous or uncertain jury questions in
R. v. Shannon
,
2011 BCCA 270, where it held that it is obvious that if an ambiguous or
uncertain question is asked, a clear and correct answer cannot be given (at para. 53).

[42]

Based on the
foregoing authorities, the following legal principles apply to an appellate review
of a jury charge and response to a jury question: (1) if a question
indicates the jury did not understand part of the main charge, the response to the
question should be clear, careful and correct; (2) unclear or ambiguous
questions should be clarified by the judge, as such questions cannot be given
clear and correct answers; and (3) while jury questions should be answered
fully and carefully, on appeal the reviewing court should focus on whether the
jury was left with an erroneous view of the law. The reviewing court should
intervene if there is a reasonable possibility that the trial judges erroneous
instruction may have misled the jury.

[43]

This is not a case
where the jurys actual question was unclear or ambiguous and was insufficiently
clarified by the trial judge. The jury foreperson clearly told the trial judge
that the jury had meant to ask only whether [i]f we believe the 1st incident,
can we convict on this alone? This is illustrated by the following statement
by the jury foreperson to the judge:

JURY FOREPERSON: Your Honour, we withdrew the second part,
we would just like to know if we are  can convict on the first incident alone
for both counts.

The
question was sufficiently clarified to enable the judge to provide a clear and
correct answer. Further inquiry into the jurys question would risk becoming an
impermissible inquiry into the jurys deliberations. The judge made clear he
did not want to go into the discussions you are having in the jury room.

[44]

The question, as
clarified, was whether the jury could convict on one incident alone for both
counts. The judges response to the question was legally correct. The judge
answered in the affirmative, which counsel for M.R.H. agreed was the legally
correct answer. In light of the judges correct answer, I do not think there
was a reasonable possibility the jury was left with an erroneous view of the
law.

[45]

In addition to being
correct, responses to jury questions should be complete. In this case, in my
view, the judges failure to reinstruct on credibility was not, as argued, a
reversible error. Given his initial interpretation of the question, the judge
invited submissions from counsel regarding the answer.

[46]

The judge opined
that the jury may need to be reinstructed on credibility, since the question
suggested that some jurors may have believed the complainant on the first
incident but not on the second. However, once the judge realized what the
actual question was, the same issues with respect to credibility did not arise.
He told the jury the following:

So I took your question to be that you had reached different conclusions. If
that is not the case, and I do not want to go into the discussions you are
having in the jury room, but I need to tell you, I think, counsel, this is -- I
am taken a bit by surprise by the retraction of the second question. But as a
matter of law, the Crown needs prove only one of the incidents, not both, for
you to convict, and the two separate charges relate to separate offences.

[47]

The jurys question
did not suggest it may have misunderstood how to assess credibility. Instead,
the jurys question likely arose from the way the charges were laid, with each
count encompassing two discrete incidents. This became evident from the jurys
follow‑up question:

JURY
FOREPERSON: May I ask another question?

THE COURT:
Well, as long as it is a question on behalf of the jury, yes.

JURY
FOREPERSON: Yes, it pertains to the same. So we would like to know if both --
so theyre  theyre separate charges for each incident?

THE COURT:
No.

JURY
FOREPERSON: Are both charges relevant to each -- or for both incidents.

THE COURT:
The charges, and again if you look at the indictment, it will become clear to
you, the indictment embraces a period of a number of years, and I do not -- I
do have it in front of me, it embraces the years between 2006 to 2011. The
evidence would tend to demonstrate, at least the allegations arise from 2007 or 8
and 2009, and they are separate offences. But each is evidence -- sorry, each
--

JURY FOREPERSON: We did suspect this, Your Honour, but we
just needed clarification. Some of our jurors were not clear on this and we
wanted clarification.

[48]

The jurys question
also could have arisen due to the wording of the judges initial
W.(D.)
charge. The judge said the following with respect to the third branch of
W.(D.)
:

Finally,
even if you disbelieve him and find his testimony raises no reasonable doubt,
you must still acquit him if you find that the evidence tendered by the Crown
does not meet its burden of proving the elements of
each offence on each
occasion
set out in the indictment beyond a reasonable doubt.

[Emphasis added.]

The jurys
question could have been directed at clarifying what the judge meant by proving
each offence on each occasion.

[49]

Although the precise
reason for the jurys question cannot be determined, this is not a case where
the jurys question suggested it had a misunderstanding of the law that needed
to be rectified, or that would have been assisted by recharging on credibility.
The judge gave clear, complete instructions on credibility in his initial
charge, and given this initial charge, I do not think the jury could have been
left with an erroneous view of the law. The judge did not err in failing to
reinstruct on credibility after the jury asked its question.

[50]

In any event, if the
jurys question stemmed from something else, say, from a concern that the two
incidents giving rise to the charges might be considered differently, how would
recharging the jury on credibility have helped? The jury would have been
instructed that it could accept some, all or none of a witnesss testimony and
that the burden always remained with the Crown. The jury had already received those
instructions, and on appeal, M.R.H. took no issue with the judges main charge,
other than to say it needed a
C.W.H.
instruction, which, as I have
explained, was not required.

[51]

Lastly, the judge did
not err in failing to seek submissions from counsel after the question was
clarified. The judge sought submissions from counsel after the question was
first posed by the jury, including giving counsel a dinner break to consider
their positions. The judge had already heard each counsels submissions
regarding recharging on credibility when he decided that he did not need to reinstruct
on credibility in answering the actual question posed by the jury. In addition,
neither counsel objected to the judges answer or requested the opportunity to
make further submissions following the judges response to the question.

[52]

I do not think the
jury was left with an erroneous view of the law: one incident was sufficient to
convict on both counts. As stated in
Jacquard
,

an
accused is entitled to a properly
instructed jury, not a perfectly instructed jury. In my view, the question
actually asked by the jury was correctly answered. It did not require a
recharge on what the jury had already been correctly charged upon: credibility
and the proposition that determining guilt or innocence was not based simply on
who was believed, or that the jury was entitled to accept some, none or all of
a witnesss testimony.

V.
Conclusion

[53]

I would dismiss the
appeal.

The
Honourable Mr. Justice Savage

Reasons for Judgment of the Honourable Madam Justice
Garson:

[54]

I have had the
privilege of reading in draft the reasons for judgment of Mr. Justice
Savage. With respect, I do not agree with his conclusion for three main
reasons. First, the judges charge to the jury was confusing in the context of
the manner in which the indictment was drawn. The judge failed to adequately
explain to the jury that the indictment charged two offences which covered a
period of time during which two separate incidents were alleged to have
occurred.

[55]

Second, when the
jury returned with a question that appears to have arisen from confusion about
the two offences and two incidents, the judge engaged in a confusing colloquy
with the foreperson and did not clearly answer the question.

[56]

Third, the jury
question raised the issue of whether the jury could reject the complainants
evidence about one of the incidents, but accept her evidence about the other. The
possibility that the jury was rejecting a significant part of the complainants
evidence should have led the judge to provide further instructions on
credibility.

[57]

For the reasons I
explain more fully below, I would allow the appeal and direct a new trial.

[58]

The first issue I
have identified is with respect to the trial judges instructions to the jury
on the interpretation of the indictment. For convenience I repeat the language
of the indictment:

Count 1

[M.R.H.], from
the 28th day of October, 2006 to the 28th day of October, 2011, inclusive, at
or near Surrey and Harrison Hot Springs, in the Province of British Columbia,
did, for a sexual purpose, touch, directly or indirectly, with a part of his
body or with an object, the body of J.S., a person under the age of fourteen
years, contrary to Section 151 of the Criminal Code.

Count 2

[M.R.H.],
from the 28th day of October, 2006 to the 28th day of October, 2011, inclusive,
at or near Surrey and Harrison Hot Springs, in the Province of British
Columbia, did sexually assault J.S., contrary to Section 271 of the
Criminal Code.

[59]

The two counts each
covered a five‑year period between October 8, 2006, and October 28,
2011. Underlying the counts were two separate and discrete incidents that the
complainant alleged had occurred within that five‑year period. She said
that the first incident occurred when she was in grade five, in 2007 or 2008,
and spending the night at her grandmothers house. She said the second occurred
when she was in grade six, in 2009, on a camping trip at Harrison Hot Springs.
The accused was charged with two offences  sexual assault and sexual
interference  with respect to each incident. The two counts corresponded to
the two offences, not the two incidents.

[60]

The judge did not
explain to the jury how to interpret the structure of the indictment. In his
original charge to the jury, the judge included the following instruction:

Mr. [H.] testified. He denied he
touched J.S. in the manner she described or for any sexual purpose at any time
during their relationship. In considering the evidence of the accused, you
should consider it as follows:

If you believe the evidence of Mr. [H.]
that he did not touch the complainant in a sexual manner at all, let alone as
described by J.S., you must acquit him.

Even if you do not believe his evidence,
if it raises a reasonable doubt in your mind as to whether he did what J.S.
says at the condo owned by her grandmother
and at Harrison
-- sorry, and
at the Harrison camping trip, you must acquit him.

Finally, even if you disbelieve him and
find his testimony raises no reasonable doubt, you must still acquit him if you
find that the evidence tendered by the Crown does not meet its burden
of
proving the elements of each offence on each occasion set out in the indictment
beyond a reasonable doubt.

In order to convict Mr. [H.]
of the offence of sexual interference, which is charged in Count 1 in the
indictment, the Crown must prove beyond a reasonable doubt the following
elements: one, that Mr. [H.] is the person who actually committed the
offence of sexual interference; two,
the offence of sexual interference
occurred at a time and place referenced in the indictment or either of those
times and places
; three, that [J.] was under the age of 14 at the time;
four, that Mr. [H.] touched her directly or indirectly; and five, that Mr. [H.]
intentionally touched her for a sexual purpose.

[Emphasis
added.]

[61]

The only instruction
the judge gave the jury on the issue of the two offences and two incidents was
his brief statement that the jury had to be satisfied that the offence occurred
at a time and place referenced in the indictment
or either of those times
and places
 (emphasis added). He did not go on to explain this statement.
From other parts of the charge, the jury may have understood that it had to be
satisfied that
both
incidents occurred in order to convict of either
offence. In particular, I have emphasized the use of the conjunctive in the
third paragraph (above) and the words of each offence on each occasion in the
fourth paragraph. From the question the jury later asked, it is evident that
the jurors were indeed confused by this aspect of the charge.

[62]

The second issue
pertains to the judges confusing response to the jury question. For
convenience I repeat the language of the question:

If
we believe the 1st incident, can we convict on this alone?
Find him not
guilty on the 2nd [incident].

[63]

As explained in my
colleagues reasons, the foreperson then advised the judge that it had been the
jurys intention to erase the second part of this question. (For clarity I have
italicized the erased portion.)

[64]

It is evident from
this sequence of events that the jurors were at some point confused about the
difference between the two offences (sexual assault and sexual interference)
and the two incidents (at Surrey and Harrison), and what instructions they were
to follow if they believed that one incident had occurred but not the other.

[65]

The judge responded
in the following manner. I shall set out the entire exchange, with certain
passages identified with letters for convenience:

A. THE COURT: Members of the jury, I apologize for the
delay in responding to the question you posed, but it raised an issue I wanted
to discuss with counsel and reflect on the proper instruction to give. I did
not want to do that in either haste or without the benefit of counsels
assistance. We have been able to speak about that in your absence.

And
first of all, because the question, it appears somebodys pencil broke when the
question was written, I want to make sure I have it correctly. I am reading
from what you passed to me [as read in]:

If we believe the 1st incident, can we
convict on this alone? Find him not guilty on the 2nd

--
and then it goes i-n-c-i, and I am assuming that should say incident.

JURY FOREPERSON: Your Honour, we
withdrew the second part, we would just like to know if we are  can convict on
the first incident alone for both counts.

B. THE COURT: Well, the
answer to that is a little bit different then. Yes, you
may, but your  your question has posed a little bit of a
difficulty in terms of you may convict on the evidence, if you find the
constituent elements have all been proven, but as I say, I may have
misinterpreted, because now I see it is an erasure. I just gathered that the
pencil had run out of steam.

So
as a matter of law, if the Crown has proven beyond a reasonable doubt the
constituent elements of each of the offences, they need not prove both
incidents, one is sufficient.

But
I should carry on to say that if you are having difficulty or rejecting the
evidence of the complainant on the second offence,
that raises a bit of a
problem in terms of reconciling the acceptance of her evidence on one if you
have rejected or raise a reasonable doubt
-- or there is a reasonable doubt
raised in your mind on the second.

So
I took your question to be that you had reached different conclusions. If that
is not the case, and I do not want to go into the discussions you are having in
the jury room, but I need to tell you, I think, counsel, this is -- I am taken
a bit by surprise by the retraction of the second question. But as a matter of
law, the Crown needs prove only one of the incidents, not both, for you to
convict, and the two separate charges relate to separate offences. One is of
sexual interference, the other is of sexual assault, and it is not incumbent
upon the Crown, and I had hoped my charge had made clear earlier, to demonstrate
beyond a reasonable doubt or prove beyond a reasonable doubt that each
happened. One of them is sufficient.

C. JURY FOREPERSON: May I ask another question?

THE COURT: Well, as long as it
is a question on behalf of the jury, yes.

JURY FOREPERSON: Yes, it
pertains to the same. So we would like to know if both -- so theyre  theyre
separate charges for each incident?

THE
COURT: No.

JURY
FOREPERSON: Are both charges relevant to each -- or for both incidents.

THE
COURT: The charges, and again if you look at the indictment, it will become
clear to you, the indictment embraces a period of a number of years, and I do
not -- I do have it in front of me, it embraces the years between 2006 to 2011.
The evidence would tend to demonstrate, at least the allegations arise from
2007 or 8 and 2009, and they are separate offences. But each is evidence --
sorry, each --

JURY
FOREPERSON: We did suspect this, Your Honour, but we just needed clarification.
Some of our jurors were not clear on this and we wanted clarification.

THE COURT: All right. These
charges do not relate to the incidents separate, one from the other. The
incidents are simply evidence underlying each of two separate charges, one of
sexual interference, one of sexual assault. And counsel, if either of you take
any umbrage with those remarks, then now is the time to stand up. I was not
expecting a free flow discussion here.

D. MR. REDEKOPP:
I appreciate that. If I may, My Lord, from what I understand the juror to say
is, is they were wondering if each of the counts relate to each of the
incidents. Is that -- was that the question?

E. JURY
FOREPERSON: That was in part our query.

MR. REDEKOPP:
All right, yes, then Your Honours answer to -- or Your Lordships answer was
fine.

THE
COURT: All right. Does that answer the question then? As I say, I am -- I was
unfortunately -- fortunately reading more into it than perhaps I should have,
because of, as I say, what was at the bottom and it was not clearly erased, so
--

JURY
FOREPERSON: That clear -- that clears it up for us.

THE COURT: All right. Well, then we will
adjourn and I will let you get back to your deliberations.

[Emphasis added.]

[66]

A number of problems
arise with this answer. First, the judge failed to ensure that the question
from the jury was clear (at the passage marked A). Once the foreperson
clarified that the actual question was not the one the judge and counsel had
prepared to answer, the judge failed to give counsel an opportunity to consider
the question in the absence of the jury and make submissions before he answered
it (at the passage marked B).

[67]

Furthermore, the
substance of the judges answer was confusing. He did at first answer the
question correctly by telling the jury that if it believed the complainants
testimony regarding one incident only, that could be sufficient to convict on
both charges. However, he then moved on, without clearly and completely
explaining his answer, to briefly address the issue of credibility (which I
will discuss below). Finally, he concluded by restating that the Crown needed
only to prove that each happened without clarifying if he was referring to
each incident or each offence.

[68]

The colloquy that
followed the judges initial answer to the question reveals that the foreperson
at least remained confused. After hearing the answer, the foreperson again
queried (at the passage marked C), we would like to know if both  so theyre
 theyre separate charges for each incident? The judge answered, No. The
foreperson then repeated the question again, then interrupted the judge as he
was giving his answer. Later in the colloquy (at the passage marked D), counsel
for the appellant restated his understanding of the question, to which the
foreperson responded, That was in part our query (at the passage marked E). The
foreperson did not say what the other part was. Neither the judge nor counsel
sought clarification.

[69]

As I have mentioned,
in the course of his initial answer, the judge referred to, but did not fully
address, the credibility issue that would arise if the jury accepted the
complainants evidence about one incident but not the other. This is the third
issue that I have identified.

[70]

In
R. v. W.(D.)
,
[1991] 1 S.C.R. 742 at 757‑58, Cory J. said in language that
has become the standard for jury charges:

In a case where
credibility is important, the trial judge must instruct the jury that the rule
of reasonable doubt applies to that issue. The trial judge should instruct the
jury that they need not firmly believe or disbelieve any witness or set of
witnesses. Specifically, the trial judge is required to instruct the jury that
they
must
acquit the accused in two situations. First, if they believe
the accused. Second, if they do not believe the accuseds evidence but still
have a reasonable doubt as to his guilt after considering the accuseds
evidence in the context of the evidence as a whole. See
R. v. Challice
(1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in
R. v. Morin
,
supra
, at p. 357.

Ideally,
appropriate instructions on the issue of credibility should be given, not only
during the main charge, but on any recharge. A trial judge might well instruct
the jury on the question of credibility along these lines:

First,
if you believe the evidence of the accused, obviously you must acquit.

Second,
if you do not believe the testimony of the accused but you are left in
reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt
by the evidence of the accused, you must ask yourself whether, on the basis of
the evidence which you do accept, you are convinced beyond a reasonable doubt
by that evidence of the guilt of the accused.

[Emphasis
in original.]

[71]

It was apparent from
the exchange with the foreperson that the jury or some members of it had
accepted the complainants evidence about one incident but not the other. The
jury was, of course, entitled to accept all, part, or none of her testimony. However,
there was no obvious rational basis for making differential findings regarding
her credibility with respect to each incident, and no other evidence that
either incident occurred. In these circumstances, the judge was rightly
concerned that the jury might not have been considering the implications of an
adverse credibility finding on the second incident in its assessment of the
first. It was therefore incumbent on the judge to repeat or amplify his
instructions on credibility.

[72]

As Wood J.A.
explained in
C.W.H.
,
supra
, at 154, the judge must instruct
the jury that the rule with respect to reasonable doubt applies to the issue of
credibility. Here, the judge ought to have reminded the jury that any
reasonable doubt must be resolved in favour of the accused; that even if it did
not accept all of the accuseds testimony, it could still accept some of it;
that it should not see its task as deciding between two competing versions of
events; that it could not decide the case simply by choosing between the
evidence of the complainant and that of the accused; and that it had to
consider all the evidence and decide whether the Crown had proven beyond a reasonable
doubt that the events that formed the basis of the crimes charged had in fact
taken place:
R. v. J.H.S.
, 2008 SCC 30 at para. 15.

[73]

Without having given the jury clear instructions on credibility, the
judge left the issue and returned to the question about the charges. At the
conclusion of the exchange, counsel and the judge appeared satisfied and the
jury returned to its deliberations. The judge never returned to clarify the
credibility issue.

[74]

I agree with my
colleagues discussion of the case law concerning the importance of clearly
answering questions from a jury at his paras. 35‑41 and in
particular his summary at para. 41.

[75]

We part company on
the question of whether the judge did clearly, carefully, and correctly
answer the question or questions. In my view, the judge did not do so. The jury
did not receive the assistance to which it was entitled. This Court should
intervene where the instructions may have misled the jury or failed to resolve
the confusion that led it to ask the question in the first place.

[76]

In summary the judge
erred in his instructions in the following ways:

·

The judge ought to
have clarified the question and then given counsel an opportunity to make
submissions as to the appropriate response.

·

The judge erred in
entering into a free-flowing exchange with the jury foreperson and counsel for
the appellant in which he failed to give a clear, concise, and unambiguous
answer to the question.

·

The judge should
have clarified that the two counts in the indictment did not correspond to the
two incidents but instead to the two offences based on the two incidents,
because it was obvious that the foreperson remained confused about it.

·

The judge should
have re-instructed the jury on the issue of credibility in accordance with
W.(D.)
.

[77]

For these reasons I
would allow the appeal and order a new trial.

The
Honourable Madam Justice Garson

I agree:

The Honourable Mr. Justice
Harris


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Cornerview Farms Ltd. v. Friesen,

2020 BCCA 2

Date: 20200102

Docket: CA45798

Between:

Cornerview Farms
Ltd.

Appellant

(Plaintiff)

And

Everett Friesen
and Emilie Friesen

Respondents

(Defendants)

Before:

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Hunter

On appeal from:  An
order of the Supreme Court of British Columbia, dated
November 22, 2018 (
Cornerview Farms Ltd. v. Friesen
,
2018 BCSC 2060,
Chilliwack Docket S27907).

Counsel for the Appellant:

R.W. Howarth

Counsel for the Respondent:

M.L. Palleson

Place and Date of Hearing:

Vancouver, British
  Columbia

November 15, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 2, 2020

Written Reasons by:

The Honourable Mr. Justice Willcock

Concurred in by:

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Hunter

Summary:

A contract for the sale of a
farm granted the buyer early access to the residence before the completion
date. The parties discussed a change in the early access date, before and after
the first agreed date, but did not come to an agreement. The sellers eventually
gave the buyer early access to the home but not the garage. The appellant buyer
terminated the contract and brought an action for the return of its deposit and
damages, arguing the respondents had fundamentally breached the contract by not
affording access to the home by the first agreed date, or to the garage at any
point. The respondents counterclaimed for damages arising from the lost sale.
The trial judge dismissed the appellants claim and awarded the respondents
damages, holding: the respondents had not breached the contract by failing to
give access to the home by the first agreed date, because the appellant waived
the right to rely on that date; and the term residence in the contract did
not include the garage. Held: Appeal dismissed. The trial judge correctly
applied the principles of contractual interpretation. There was ample evidence
to support the judges conclusion that the buyer had waived the November 1
access date. There is no basis to interfere with the judges assessment of
damages.

Reasons for Judgment of the Honourable
Mr. Justice Willcock:

Introduction

[1]

On August 12, 2013, Cornerview Farms Ltd., the appellant,
entered into a contract to purchase Everett and Emilie Friesens poultry farm
at 6957 Bradner Road in Abbotsford, British Columbia for $1,560,000. The
buyer paid a deposit of $100,000. The contract called for the sellers, the
respondents, to deliver up vacant possession of the property at noon on January 31, 2014.
It allowed, however, for the appellant to have early access to the residence on
the property, pursuant to a clause that read as follows:

Seller will vacate residence not later than November 1, 2013
and will allow Buyer access for purposes of improvements as follows:

- replace flooring

- painting

- replacement of
plumbing fixtures.

[2]

Negotiations with respect to the early access to the residence continued
in the period between the execution of the contract and the completion date. The
sellers say those negotiations resulted in an agreement to modify the date upon
which the buyer would get early access to the residence to November 30, 2013.
The sellers vacated the home on the property by November 24 but did not
vacate the garage outbuilding.

[3]

The buyer took the position the term residence included the garage
and, on December 2, 2013, asked the sellers to vacate the garage
immediately. The sellers refused to do so. On December 16, 2013 the
buyer advised the sellers they had breached the contract, purported to
terminate the contract and asked for the immediate return of the $100,000
deposit and interest.

[4]

The sale did not complete. The property was subsequently sold by the
sellers for an amount substantially below $1,560,000. The deposit was not
returned.

[5]

The buyer brought this action for return of the deposit and damages for
breach of contract. The sellers commenced a counterclaim seeking damages
arising from the breach, principally the difference between the sale price and
the price for which they later sold the farm, but also including carrying
costs: interest expenses, utilities and property taxes.

[6]

The judge found the contract permitted the buyer to have early access to
the house only and not the garage. He also found the buyer had waived the
provision allowing it to have early access to the house on November 1, and
agreed that the contract could be performed by affording access to the house by
November 30. In any event, he found the failure to give the buyer early
access to the garage (if that had been required by the contract) would not have
amounted to a fundamental breach of the contract so as to permit the buyer to
terminate the agreement. He found the buyer to be in breach of the contract of
purchase and sale and awarded the sellers damages in the sum of $120,000

[7]

The appellant says the trial judge erred:

a)

in finding that the term residence did not include the garage;

b)

in finding that there was waiver of the November 1 vacancy date and
no fundamental breach of the contract;

c)

in assessing damages by:

i.

failing to take into account the inadequate measures taken by the
sellers to mitigate their losses;

ii.

excluding revenue from a specific flock of chickens; and

iii.

failing to adequately assess the credibility of Mr. Friesen.

[8]

The critical finding of the trial judge with respect to the
interpretation of the contract is at paras. 241243 of the reasons for
judgment:

[241]

Having
considered counsels submissions and construed the plain language and primary
meaning of the words used in the debated term; and having regard to the context
of the contract as a whole; and, to a lesser degree, evidence related to the
factual matrix  or surrounding circumstances -- when the contact was made
that is to say, circumstances the parties knew or reasonably ought to have
known about that assist in determining the meaning a reasonable person would
give to the words use by the parties, I have come to the view that the term
residence insofar as it relates to the defendants obligation to vacate the
garage by November 30 is not ambiguous; that the term residence in this
factual matrix meant the house. The defendants had vacated the house on
November 24, 2013. They were not obligated to vacate the garage by no
later than November 30, and were not in breach of the contract for their
not having vacated the garage by November 30, 2013.

[242]

To
the extent any ambiguity may remain. I find this interpretation consists [sic] with
commercial efficacy and good sense, and is reasonable and fair.

[243]

It is noteworthy that the
plaintiff had asked for early access to carry out some renovations in the
house. The defendants granted what was a request as a pay forward response to a
kindness they had received with respect to their own quite recent purchase of
another property. The plaintiff did not stipulate anything specific with
respect to the garage, which was fully occupied at the time. The plaintiff was
minded to use the garage as a staging area, but never stipulated that or an
intention to gut the house, as Mr. Shead [the buyers principal] testified.

[9]

The trial judge then turned to the question of waiver. As the sellers
had not afforded the buyer access to the residence by the date specified in the
contract, November 1, 2013, the sellers claim for damages hinged
upon the continued validity of the contract after that date. The judge
addressed that issue obliquely, by describing the positions of the parties,
without expressing a clear conclusion.

[10]

At paras. 246254 of the reasons, the judge set out the submission
of the sellers counsel to the effect that, whether or not an agreement to
amend the vacancy date was actually reached, there was no doubt that, after a
meeting between the parties to discuss the issue on October 24, neither
side expected the buyer to have access on November 1. The sellers relied
on statements in
Endacom 2000 Inc. v. Hydro
One Networks Inc.,
[2002] O.J. No. 129 (S.C.J.);
Rados v. Paconla Investments Ltd
., [1981] B.C.J. No. 72 (S.C.),
and
2329131 Ontario Inc. v. Carlyle
Development Corp
., 2014 ONCA 132
to illustrate the consequences that arise when parties to a contract conduct
themselves in a manner that indicates they are no longer relying on a deadline
stipulated in the agreement. The reasons for judgement cite the following
passage from
Endacom
in this regard:

[37]      In law, when both
parties to a contract let the time for completion go by, and one of the parties
wishes to reinstate time as of the essence, it is necessary to serve a notice
upon the other party, fixing a new date for completion, which must be
reasonable, and stating that time is to be of the essence with respect to the
new date.

[11]

Based on this principle, the sellers reasoned that after having agreed
to extend the November 1, 2013 date, and letting that date pass, the
buyer could only impose a new schedule on reasonable terms and could not
reinstate the November 1 early access date.

[12]

The judges recitation of the position taken by the sellers ends with
the following passages:

[253]

The
defendants submitted there is in place an entirely enforceable Contract between
the parties consisting of the document set out in Ex. 2 at p. 6, [the
original agreement] together with the waived or later date to vacate the
residence. Accordingly, the defendants submit the plaintiff did not have the
ability or right to try walk away from that enforceable deal.

[254]    The defendants further
submitted that the agreement to move the date to November 30 is a waiver
of the November 1 date; the plaintiff, in essence, acquiescing in
approving the delay to November 30, 2013.

[13]

These paragraphs are immediately followed by a discussion of fundamental
breach, clearly founded upon the presumption that the sellers were to provide vacant
possession of the residence by November 30:

[255]

I will briefly consider an
alternative finding if my disposition of the issue of whether the term
residence encompassed both the house and the garage; and on the operative
date, if the defendants were to provide vacant possession of the garage as well
as the residence by November 30. Is in error. [sic] Then, I will consider
whether the failure to vacate the garage (the house was vacated by November 24)
by that date does not amount to a fundamental breach of the Contract.

[14]

Only by reading the judgment as a whole is it apparent that the judge
implicitly accepted the argument that the buyer had, through the course of its
conduct, agreed to treat November 30 as the operative date by which it
was to have early access to the residence. When he turned to the question of
fundamental breach, the trial judge addressed only whether failure to vacate
the
garage
by November 30 went to the root of the contract; he did not
consider whether the failure to vacate the house
on November 1
amounted to a fundamental breach.

[15]

He concluded that even if the contract had called for the sellers to
afford early access to the garage as well as the house, the failure to do so
did not amount to a fundamental breach of the contract:

[267]

There
is no breach justifying repudiation where the parties have received
substantially what they had bargained for:
Sail Labrador Ltd. v. Challenge
One (The)
, [1999] 1 S.C.R. 265 at para. 86.

[270]

I agree with the defendants
that
the failure to vacate the garage
cannot reasonably be characterized
as a breach of Contract that deprived the plaintiff of substantially the whole
benefit of the Contract; further, counsel for the defendant aptly submitted
that while the failure of the defendants to vacate the entire residence by the
early possession date arguably could be considered an inconvenience for the
plaintiff, it cannot tenably be said that they lost substantially the whole
benefit of the Contract (see
Stearman v. Powers
, 2014 BCCA 206).
[Emphasis added]

[16]

Having found the contract to be binding, he concluded the buyer, by
failing to complete, had breached the contract and was liable for consequential
damages. Those damages included the difference between the original purchase
price and the final purchase price, $130,000, together with carrying costs,
less the deposit, interest on the deposit and earnings flowing from the
continued operation of the chicken farm in the interval between the collapse of
the first sale and the completion of the subsequent sale of the property.

Appellants argument

Interpretation of the contract

[17]

The buyer takes issue with the trial judges finding that the sellers
undertook to provide early access to the residential building only and not the
garage.

[18]

The buyer does not take issue with the trial judges description of the
principles of contractual interpretation. These were drawn from the decision of
this Court in
Miller v. Convergys CMG Canada Limited Partnership
,

2014 BCCA 311
.
However, the buyer contends the analysis was inadequate because the judge
did not consider the principle of
contra proferentem
which, it submits,
has application in this case because the sellers lawyer drew up the contract.

[19]

As this Court noted in
Miller
, resort to the rule
of

contra
proferentem
is necessary only where there is ambiguity that cannot
otherwise be resolved. The principle may not be used to create or magnify an
ambiguity. In my view, it was not an error to interpret the contract in the
case at bar without resort to the rule. The contract was interpreted by
considering, first the ordinary meaning of the word residence, and turning,
secondly, to the words of the contract describing the purpose for which access
was to be afforded to the buyer. Early access was given to the buyer
specifically for purposes of improvements that were to be effected to the
residential building, not the garage. That analysis left no ambiguity.

[20]

The appellant does not identify either an error in principle or a
palpable or overriding error that can be said to undermine the trial judges
findings of fact. This is clearly a case where the contractual interpretation
involved issues of mixed fact and law. That being the case, we should defer to
the trial judge for the reasons expressed in
Sattva Capital Corp. v. Creston
Moly Corp.
, 2014 SCC 53 at para. 52: such deference promotes
the goals of limiting the number, length and cost of appeals and of promoting
the autonomy and integrity of trial proceedings. That is particularly so
where, as here, only the parties have an interest in defining the legal
obligations arising from the contract.

Waiver and fundamental breach

[21]

The buyer submits the facts do not support the submission of Respondents
counsel as set out by the trial judge with respect to waiver of the November 1, 2013
early access date. Properly, in my view, the buyer considers the judge to have
accepted the sellers submissions with respect to waiver.

[22]

The buyer identifies instances in the history of dealings between the
parties where its principal, Mr. Shead, took the position that unless an
amendment to the contract could be agreed to, he would insist upon the right to
have access to the residence on November 1, 2013. It contends these
weigh heavily against the conclusion that it waived the provision for access on
November 1.

[23]

However, these instances were not
overlooked by the judge, who clearly appreciated the buyers position that it
had occasionally sought to reinstate the original agreement. I
n my view, the evidence strongly supported the judges
implicit conclusion that the provision calling for early access to the
residence on November 1, 2013 was waived by the buyer.

[24]

The trial judge referred in his
reasons to the following evidence with respect to waiver:

a)

the buyer acknowledged there was a meeting on October 24, 2013
to discuss extension of the November 1, 2013 vacancy date (para. 35);

b)

it was undisputable that the parties had a discussion on October 24, 2013,
that touched on the question of early vacant access (para. 86);

c)

on October 24, 2013, Mr. Shead wrote to the sellers
solicitor confirming he had agreed with Mr. Friesen that he would have full
access and possession of the house on Nov 30- 2013 at noon (para. 42);

d)

on cross examination, Mr. Shead acknowledged the parties agreed on
October 24th, as gentlemen, that the early access date would be November 30
(para. 90);

e)

Mr. Shead confirmed an e-mail was sent on October 31 at 4:04 p.m.,
to the sellers solicitor which read, in part: The date for access to the
house was discussed to be November 30
th
at noon (para. 95);

f)

on cross examination Mr. Shead acknowledged that as of October 31
he was still living with an agreement with the November 30
th
date (para. 97);

g)

on November 6, 2013 the buyers acting solicitor wrote a
letter to the sellers solicitor that included the following passage: my
clients indicate that they and the Friesens agreed to November 30, 2013
at noon for possession of the residence (paras. 36, 83 and 84);

h)

Mr. Shead agreed in cross-examination that he had provided those
instructions to his solicitor (para. 92); and

i)

finally, the following cross-examination was noted (para. 94):

Q    Now, youve eventually
agreed with me that the November 1st date for vacancy  of the garage or
whatever we want to call it  it was agreed it would be extended to November
30; correct?

A    Correct.

Q   All right. And that was an
agreement you reached with the Friesens at this October 24th meeting at their
house; right?

A    That was discussed and agreed upon verbally.

[25]

In my view, the evidence supported the conclusion that the buyer had
waived the term of the contract providing the buyer access to the residence on
November 1, 2013.

[26]

There is some merit to the buyers submissions that the reasons are deficient
in failing to address numerous issues and conflicts in the evidence identified
by the judge. The buyer says, for example, that the judge describes in detail
the submissions impugning the credibility of Mr. Friesen but does not make
any finding with respect to his credibility. Similarly, I note, the judge set
out in detail the submissions impugning the credibility of the buyers
principal, Mr. Shead, without making any finding with respect to his
credibility. However, I am unable to identify any point of importance turning
on the credibility of either party. There is little dispute with respect to the
terms of the contract and the essential aspects of the negotiation relied upon
by the judge were set out in correspondence between the parties and their
solicitors.

[27]

In light of his finding that the sellers complied with their contractual
obligations when they vacated the residence and made access available to the
buyer before November 30, 2013, the judges consideration of the
fundamental breach issue became unnecessary and can be regarded as
obiter
.
Because I would uphold the trial judges interpretation of the contract and
would find the buyer to have waived the provision affording it access to the
residence on November 1, 2013, it is not necessary to revisit the
question of fundamental breach.

[28]

I would note, however, that the appellant does not take issue with the
trial judges description of what amounts to a fundamental breach: a breach
that is such as to deprive the party who has further undertakings still to
perform of substantially the whole benefit which it was the intention of the
parties as expressed in the contract that he should obtain as consideration for
performing those undertakings. (
Coal Harbour Properties Partnership v. Liu
,
2005 BCSC 873 at para. 36 (citing
Hongkong Fir Shipping Co.
Ltd. v. Kawasaki Kisen Kaisha Ltd
., [1962] 2 Q.B. 26 (C.A.)).
The course of negotiations between the parties made it clear that the buyer was
flexible about obtaining that access and there was nothing in the buyers
conduct that suggested that later access to the residence to effect repairs
would frustrate its intentions. The course of dealings that led the trial judge
to find the agreement to afford early access to the residence had been waived is,
in my view, inconsistent with the argument that breach of that term would
amount to a fundamental breach of the contract, if it had not been waived.

Assessment of damages

[29]

When he assessed damages the judge had before him a detailed calculation
of the loss on the resale of the property and carrying charges. He accepted
that the deposit was forfeited on account of damages. He made an allowance
for interest on the deposit and for profits the Friesens earned through their
continued operation of the poultry farm. He accepted the evidence of Mr. Friesen
that one cycle of poultry production, identified as A122, would have been
completed and the profits from that cycle would have been earned before the
completion date. He deducted profits from cycles that finished after the
completion date. He made a moderate adjustment to the claim to reflect the
delay in listing the property for resale while giving some weight to the
Friesens uncontradicted testimony that the market did not favour selling at
the time of the breach (para. 263).

[30]

The appellant contends the trial judge inadequately assessed Mr. Friesens
credibility. The appellant says the trial judge should not have given credence
to Mr. Friesens explanation of his slow attempts to sell the property and
erred in accepting the evidence that flock A122 would have been sold before the
scheduled completion date.

[31]

In my view, the appellant has not identified an error in principle or a
palpable and overriding error affecting the findings of fact. The trial judge
expressly addressed the appellants argument that the respondents failed to
mitigate and made some allowance for deficiencies in the respondents conduct.
In the course of argument we were taken to documentary evidence in support of
the trial judges findings of fact. In my view, there is no basis to interfere
with the trial judges assessment of damages and in particular no reason to say
that the trial judge should have drawn an adverse inference from any
deficiencies in the documentary record.

[32]

I would dismiss the appeal.

The Honourable Mr. Justice
Willcock

I agree:

The Honourable Mr. Justice
Fitch

I agree:

The Honourable Mr. Justice Hunter