DATE: 20060614

DOCKET: C44385

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and- DARRON COLIN ST. PIERRE (Appellant)

BEFORE:

LABROSSE, LASKIN AND ARMSTRONG JJ.A.

COUNSEL:

Robert Sheppard

for the appellant

Lucy Cecchetto

for the respondent

HEARD & RELEASED ORALLY:

June 8, 2006

On appeal from the convictions entered on March 11, 2005 by Justice Heeney of the Superior Court of Justice, sitting with a jury.

E N D O R S E M E N T

[1] The appellant was convicted, by a court composed of a judge and jury, of sexual interference, invitation to sexual touching (x2) and sexual assault of the complainant, his stepson. It was alleged that the appellant engaged in sexual activities with the complainant when he was 13 years of age, and continued to do so for a period of two years. The sexual activities included fondling, masturbation and fellatio.

[2] The appellant was acquitted of inviting the complainant to sexually touch Jerry Stirling, a friend of the appellant.

[3] The appellant denied any misconduct.

[4] The appellant submits that the charge to the jury was in error on the burden of proof. He relies on an isolated passage from the charge, which he contends placed a burden on the defence to raise a reasonable doubt.

[5] In our view, the jury was properly instructed on the burden of proof. The passage relied on by the appellant is taken out of context. The charge made it clear that there was no burden on the accused to raise a reasonable doubt. It correctly complied with the instructions in R. v. W.(D). (1991), 63 C.C.C. (3d) 397 (S.C.C.) and R. v. Lifchus (1997), 118 C.C.C. (3d) 1.

[6] Defence counsel obviously agreed, and raised no objection to the charge.

[7] The appellant also submits that his acquittal for the charge of invitation to sexual touching of Jerry Stirling is inconsistent with the verdicts of guilty and requires a new trial.

[8] In our view, there is a rational basis to reconcile the guilty verdicts and the acquittal.

[9] The trial judge cautioned the jury that it would be dangerous to accept the testimony of the complainant on this issue because it was different from a sworn statement he had previously given. That may have caused the jury to have a reasonable doubt on that issue.

[10] The guilty verdicts are not unreasonable and are fully supported by the evidence.

[11] The appeal is accordingly dismissed.