W A R N I N G

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. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

CITATION: R. v. K.K., 2007 ONCA 203

DATE: 20070322

DOCKET: C44769

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – K. K. (Appellant)

BEFORE:

ROSENBERG, GOUDGE and LaFORME JJ.A.

COUNSEL:

Jody H. Berkes

for the appellant

Greg Skerkowski

for the respondent

HEARD & RELEASED ORALLY:

March 14, 2007

On appeal from the conviction entered by Justice B. H. Matheson of the Superior Court of Justice dated September 28, 2005.

E N D O R S E M E N T

[1] The appellant’s ex-girlfriend, the complainant, alleged that the appellant confined and assaulted her during the weekend of July 9th, 2004. In relation to that weekend, the appellant was charged with assault, unlawful confinement, administration of a noxious substance and sexual assault. He was also charged with threatening the complainant’s aunt, threatening the complainant’s mother and dangerous driving in relation to events on July 28th, 2004. Further, he was charged with threatening the complainant between July 9th and September 1st, 2004. Finally, he was charged with assaulting a police officer on August 31, 2004.

[2] After a two week trial, the jury returned guilty verdicts on all counts relating to the July 9th weekend with the exception of an acquittal on the charge of administering a noxious substance. The jury also found the appellant guilty of criminal harassment, threatening the complainant and assaulting a police officer.

[3] The appellant appeals from his convictions and raises three grounds: (1) the trial judge erred in instructing the jury on credibility and reasonable doubt; (2) the trial judge erred by failing to give a limiting instruction to the jury with respect to disposition evidence; and (3) the guilty verdicts returned by the jury were inconsistent with the acquittal on the charge of administering a noxious substance. These will be dealt with in order.

Instructions on Credibility and Reasonable Doubt

[4] The essence of the appellant’s submission is that even though the jury was given a standard W.D. instruction, this was not enough to deter the jury from “their natural tendency to decide the case on the basis of a credibility contest”. He goes on to say that the standard W.D. charge should now include “if after a careful consideration of all the evidence you are unable to decide who to believe, you must acquit”.

[5] We are not prepared to say that the proposed addition to the standard W.D. instruction would be of assistance to juries. The trial judge here repeatedly throughout his charge instructed the jury that the burden of proof was beyond a reasonable doubt and that it was solely the Crown’s burden. This combined with the W.D. instruction that he did give and the closing arguments of appellant’s counsel satisfy us that the jury would not have been confused as to the burden of proof and how to treat findings of credibility.

[6] This ground of appeal is dismissed.

Instructions Regarding Disposition Evidence

[7] The Crown elicited evidence from the complainant about prior incidents of violence against her by the appellant. While the appellant accepts that this evidence was likely admissible, and trial counsel took no issue with it being elicited, he argues that he was prejudiced because no limiting instruction was given to the jury. We disagree with this argument for two reasons.

[8] First, the evidence was admissible because it was relevant to several issues in the trial. See R. v. F. (D.S.) (1999), 132 C.C.C. (3d) 97 (Ont. C.A.). These issues include such things as providing the jury with evidence of the nature of the relationship between the complainant and the appellant, that the charges were not as a result of isolated incidents, and to the reporting of the incidents in question by the complainant.

[9] Second, trial counsel made no objections to the admission of this evidence nor to the absence of a limiting instruction. Indeed the evidence was relied upon by the defence to advance the defence theory. Thus, in the circumstances of this case, we are not satisfied that the appellant was prejudiced by the lack of any limiting instruction. This ground of appeal must also fail.

Inconsistent Verdicts

[10] In sum, the appellant argues that since the jury acquitted the appellant of administering a noxious substance, it was unreasonable to convict him of the other July 9 weekend offences. As we understand the argument, the appellant says that all the offences depended entirely on the complainant’s credibility and yet in acquitting him the jury must have disbelieved her. Thus, the theory goes on, because the jury disbelieved the complainant on the one charge, and all the July 9th through 11th charges were closely related in time and context, there should have been a reasonable doubt in connection with all of them. This ground of appeal must also fail.

[11] The jury is entitled to accept all, some or none of any witness’s testimony. The jury is entitled to assess the guilt of an accused person on any theory of the evidence consistent with the instructions they receive. On the issue of the pills, (i.e. the noxious substance) the jury could well have believed the complainant, but have a doubt that she had properly identified the substance, given her uncertainty about the container and origin of the pills. The appellant, in our view, has failed to establish that the verdict is unreasonable on the basis that it is inconsistent with other verdicts.

[12] For these reasons, the appeal is dismissed.

“M. Rosenberg J.A.”

“S. T. Goudge J.A.”

“H. S. LaForme J.A.”