COURT OF APPEAL FOR ONTARIO

DATE: 20061031

DOCKET: C42633

RE: HER MAJESTY THE QUEEN (Respondent) v. RICHARD CHAPMAN (Appellant)

BEFORE: O’CONNOR A.C.J.O., ROSENBERG and CRONK JJ.A.

COUNSEL:

W. John McCulligh for the appellant

Debbie Calderwood for the respondent

HEARD & ENDORSED: October 30, 2006

On appeal from the conviction entered by Justice MacKenzie of the Superior Court of Justice, sitting with a jury, on April 21, 2004 and the sentence imposed dated November 3, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant was charged with two counts of sexual assault. The jury convicted the appellant of one count and acquitted on the other. The appellant’s main argument is that the verdicts are inconsistent.

[2] The test for unreasonable verdicts on the basis of inconsistency is a strict one: see R. v. Pittiman, 2006 SCC 9, [2006] SCJ No. 9.

[3] In our view, the verdicts are reconcilable. Given the various opportunities the complainant had to disclose the sexual nature of the contact that formed the basis of the second count, and did not do so for many months while disclosing other aspects of contact with the appellant, it was open to the jury to find that there was reasonable doubt with respect to that count that did not exist with respect to the other count.

[4] The appeal against conviction is dismissed.

[5] In our view, the sentence of 29 months was within the appropriate range. Leave to appeal the sentence is granted, but the sentence appeal is dismissed.