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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
CITATION: R. v. M.R., 2010 ONCA 285
DATE: 20100419
DOCKET: C45464
COURT OF APPEAL FOR ONTARIO
Feldman, Simmons and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
M.R.
Appellant
Kathryn Wells, for the appellant
Joanne Stuart, for the respondent
Heard: April 14, 2010
On appeal from the conviction entered by Justice Norman D. Dyson of the Superior Court of Justice, sitting with a jury, dated December 13, 2005.
ENDORSEMENT
[1] The appellant was charged with 13 counts of various offences relating to inappropriate sexual conduct in relation to two young girls who were members of his family. Six charges were withdrawn by the Crown. Of the remaining seven, the appellant was convicted after a five-day trial by a judge and jury of two of the charges – one in relation to each complainant. He was acquitted of the remaining charges.
[2] The appellant advances three arguments: inconsistent verdict in relation to count ten, unreasonable verdict in relation to count twelve. The third argument is that the trial judge’s charge was deficient.
[3] In count ten, the appellant was convicted of sexually assaulting his niece, SL, who was then 13 years old. According to the Crown’s evidence, SL and her sister NL, were sleeping together in the same bed when the appellant came in and touched SL inappropriately. The appellant submits that since the jury was not satisfied beyond a reasonable doubt that he had sexually assaulted SL on any of the occasions that formed the basis of the other counts relating to her, it was inconsistent of them to find he committed the acts that formed the basis of count ten.
[4] The test for unreasonable verdict on the basis of inconsistency is a strict one: see R. v. Pittiman, 2006 SCC 9, [2006] S.C.J. No. 9.
[5] In our view, the verdict on count ten can be reconciled with the other verdicts having to do with the complainant, SL. We note that there is no temporal connection among the events that form the basis of the various counts. Moreover, although NL’s account of the events differed from SL’s, she provided evidence with respect to count ten in addition to that of SL. No other corroborative evidence was presented in relation to any of the other counts relating to SL.
[6] It was open to the members of the jury, in the light of their being properly charged that they can believe all, some, or none of a witness’s testimony, to believe the evidence of SL about what happened in the bedroom that evening and to believe that part of NL’s evidence that corroborated it, so as to be satisfied beyond a reasonable doubt that the inappropriate touching took place.
[7] We would not, therefore, give effect to this ground of appeal.
[8] In relation to count twelve, the appellant was convicted of sexually assaulting another member of the family, JG who was approximately eleven years old at the time of the alleged conduct. The appellant argues that the verdict was unreasonable because the evidence upon which the Crown relied was weak. Among other things, the appellant relies on the complainant’s inability to recall certain details such as the time of year, what she was wearing at the time and the number of times she was touched.
[9] Once again, the appellant faces a difficult burden in establishing that the verdict is unreasonable. The appellant must demonstrate that the verdict is one that no properly instructed jury acting judicially could reasonably have rendered.
[10] Here, the verdict in relation to JG is not unreasonable. The Crown’s case in relation to this count rested on the jury’s assessment of the credibility of the appellant and of JG. The jury was entitled to find JG credible and if so was entitled to also find that her evidence was sufficient to support a finding of guilt. Regarding JG’s difficulty in recollecting the details of the assault, it is important to bear in mind that this was an historic sexual assault, one that took place when JG was a young child.
[11] We would not give effect to this ground of appeal.
[12] Third, the appellant submits that the trial judge failed in his obligation to put the theory of the defence to the jury. This theory can be broken down into two parts First, in relation to count ten, the defence relied on the inconsistencies between the descriptions SL and NL gave about what happened on the night in question. The defence also relied on motive to fabricate; namely, the fact that in relation to both complainants the allegations of sexual assault against the appellant were in retaliation to accusations made by the appellant’s side of the family concerning another family member with whom they were more closely aligned. The second factor involving motive related to JG only. The appellant argued that JG made up the allegations against him out of anger and frustration due to his involvement in her mother’s drinking.
[13] In R. v. Daley (2007), 2007 SCC 53, 226 C.C.C. (3d) 1, the Supreme Court has provided clear guidance about how to assess the adequacy of the charge. The test is one of fairness. The evidence must be put to the jury in a manner that will allow the jury to fully appreciate the issues and the defence presented. Significantly, the charge must be considered in the context of the trial as a whole.
[14] We agree that it is unfortunate that the brief charge to the jury did not set out the theory of the defence in a more fulsome fashion. However, the trial judge did instruct the jury to be mindful of inconsistencies between the testimony of various witnesses in that part of the charge where he dealt with assessing the testimony of witnesses. He also made clear reference to the family dispute and that reference included mention of the problems associated with alcohol. The trial was short, the issues were uncomplicated and the Crown and defence counsel gave thorough addresses to the jury just prior to the charge.
[15] Furthermore, the fact that the jury found the appellant guilty of some charges and not guilty of others demonstrates that they considered the judge’s instructions and the evidence and carefully carried out their duties.
[16] We are satisfied that the charge was adequate in the sense that it met the requirements of Daley.
[17] The appeal is therefore dismissed.
“K. Feldman J.A.”
“Janet Simmons J.A.”
“Gloria Epstein J.A.”