WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486. (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.

(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b) justice system participants who are involved in the proceedings are protected.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

R. v. G.B., 2010 ONCA 723

Date: 2010-10-28

Docket: C45041

Court of Appeal for Ontario

Sharpe, MacFarland and Rouleau JJ.A.

Between

Her Majesty the Queen

Respondent

and

G.B.

Applicant

Counsel:

Dirk Derstine and Ariel Herscovitch, for the appellant

Holly Loubert, for the respondent

Heard: October 27, 2010

On appeal from the judgment of Justice M. Fuerst of the Superior Court of Justice dated February 3, 2006.

Appeal Book Endorsement

[1] The appellant was charged with various offences arising from 3 alleged incidents on 3 separate dates involving his ex-spouse. He was acquitted on all counts relating to the 1^st and 3^rd dates and convicted on 2 counts relating to the 2^nd date.

[2] The appellant argues that as the central issue was the credibility of the complainant and as the evidence was strongest with respect to the third date when he was acquitted, the convictions should be set aside on the ground that they are inconsistent with the acquittals.

[3] We are unable to accept that submission. The evidence with respect to each date was different. The offences and the acts alleged were different. This was not a case like R. v. D.T. (1998), 1998 ONCA 6341, 124 C.C.C. (3d) 549 where there was very little evidence as to the details of four sexual assaults and the complainant testified that there was no difference in terms of what happened on the four occasions. The jury was instructed that the evidence on all counts was essentially the same. Here, the jury was quite properly instructed to consider the evidence on each count separately. The jury was entitled to find that the Crown had proved guilt beyond a reasonable doubt on the two counts relating to the second date but to acquit on the other counts given their distinctive nature and dates: see R. v. Pittman (2006), 2006 SCC 9, 1 S.C.R. 381 at para. 8.

[4] Appeal dismissed.