Indictment Structure for Historical Allegations: A Missed Opportunity at the Supreme Court of Canada?

A recent case heard by the Supreme Court of Canada, R. v. M.R.H., involved the issue of indictments that combined multiple alleged historical sexual assault incidents into one individual count. Since the removal of the statute of limitations on sex crimes approximately three decades ago, this has been common practice by police services and Crown prosecutors in the name of "simplification". The insidious practice combines distinctly separate incidents that had allegedly occurred in different places  (sometimes even​​

different jurisdictions) and at different unspecified time frames into one count and then multiplies that count into different offence categories related to the same alleged individual incident. Not only is requiring an accused person to defend themselves against this indictment structure exceedingly unfair, but it can ultimately leave a jury confused as to how to convict or acquit if they believe only some of the prosecution's case.

R. v. M.R.H's original indictment started out like this:

• Count 1 - Touching for a Sexual Purpose at place A  between 2006 and 2011
• Count 2 - Invitation to Sexual Touching at  place A  between 2006 and 2011
• Count 3 - Sexual Assault at place A between 2006 and 2011
• Count 4 - Touching for a Sexual Purpose at place B between 2006 and 2011
• Count 5 - Invitation to Sexual Touching at  place B between 2006 and 2011
• Count 6 - Sexual Assault at place B between 2006 and 2011

And then it evolved to this at trial:

• Count 1 - Touching for a Sexual Purpose at place A and place B  between 2006 and 2011
• Count 2 - Sexual Assault at place A and place B between 2006 and 2011

This confusion was the basis for arguments in R. v. M.R.H. on October 9, 2019. The jury seemed to have trouble understanding if finding guilt on the first count meant they also had to find guilt on the second count. This implies, as posited by Crown counsel (surprisingly), that due to the indictment structure and potential difficulties of weighing credibility there may be a problem with jury deliberations that would not exist if each alleged distinct incident was separated into its own count.

You can watch or listen to the hearing's webcast by clicking here.

After listening to the entire hearing myself, I fear the result will see M.R.H.'s convictions restored and that the SCC will have passed on the perfect opportunity to set ground rules against combining multiple incidents covered by one-time frame into individual counts. I will explain why.

Firstly, the main issue at hand, in this case, was that the jury was given confusing instructions by the trial judge about understanding the structure of the indictment, and its relationship to conducting a credibility assessment with regards to both counts within the same time frame. At the SCC hearing, Crown counsel -- since they are the appellant seeking to restore convictions, they presented first -- was enticed by one of the SCC judges to go down the road of arguing their stance on whether or not the indictment structure itself is an issue worthy to entertain. 

Reluctantly, the Crown visited the issue, and then came the admission by the judge that it was an issue never before assessed by the Supreme Court of Canada. After hearing this exchange, I started trembling with hope and anticipation -  finally, something could be done about this horrible practice. Finally, I thought to myself, thousands of innocent men across Canada can have an SCC ruling with which to have their (wrongful) convictions overturned, deemed as unsafe convictions by way of finding it unconstitutional to combine multiple alleged incidents into one count.

I was surprised at how candid Crown counsel was, highlighting these issues in their oral arguments. But they were not there to argue that and eventually steered back to their preferred issue of whether or not the jury could have been confused by the trial judge's instructions. Then defence counsel (not the same as trial defence counsel) stepped up. I eagerly anticipated if he would rejoin the indictment structure issue handily set up by the SCC judge. 

It didn't take long for my initial excitement to deflate. 

This counsel had no interest in going there and even told the court he understood those were minor issues that he didn't want to bother them with. Ignorant or oblivious to the fact the court was showing interest. He pressed on with jury confusion relevant solely to the judge's instructions in an uninterested, boring, and at times even rude manner likely destroying the opportunity for freedom for his client and the SCC to potentially guide on the indictment structure issue - the root cause for jury confusion in the first place.

As of October 12th, the decision on this matter has been reserved and I will update this article when it has been released. Until then, I believe this was a missed opportunity, albeit raised by the SCC judge herself, but regretfully not pursued by defence counsel. Generally, if an argument raised by anyone at a hearing is not counter-argued by an opposing party, it will not be considered by the judicial panel. 

UPDATE: Written decision released October 15th, 2019: Appeal allowed and M.R.H.'s convictions are restored. (Crown appealed the lower appeal court's 2:1 verdict to overturn the conviction and call a new trial.) However, SCC Justice Karakatsanis did acknowledge the issue of combining incidents into one account, contravening the "single transaction rule" for indictment structures, covered under s. 581 of the Criminal Code. The final SCC decision states:

"...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."

​So there we have it. This terrible practice will continue to leave people accused of dubious historical allegations at an utterly unfair disadvantage. To be discussed "another day". Who knows if or when that day will ever come?  

On a positive note, this signals there is a recognized risk of a miscarriage of justice as long as this practice continues. Therefore accused people must direct their defence lawyers to laser target this issue before proceeding to trial. By laser targeting I mean have your defence counsel raise the issue on record before the judge to request that combined indictments be separated by their distinct alleged incidents, using the R v M.R.H. decision as reference. If your lawyer refuses to do so, you should seriously reconsider their dedication to your vigorous defence and you should consider seeking a new lawyer.