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. 486.4(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.L., 2013 ONCA 176

DATE: 20130325

DOCKET: C54034

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.L.

Appellant

Matthew Gourlay, for the appellant

Susan Magotiaux, for the respondent

Heard: September 18, 2012

On appeal from the conviction entered on March 26, 2011 by Justice Maria T. Linhares de Sousa of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A. overview

[1] The complainant, M.H., alleged that the appellant, S.L., took her out in his car and had sex with her. She was 15 and he was 33.

[2] The appellant was charged with sexual interference, invitation to sexual touching, and sexual assault. He did not testify or call a defence.

[3] After an eight-day jury trial, the appellant was convicted of sexual interference but acquitted of invitation to sexual touching and sexual assault. After credit of ten months for pre-sentence custody, he was sentenced to three years in jail.

[4] The appellant appeals his conviction for sexual interference and asks for an acquittal. He contends that the conviction was unreasonable on the basis that it is inconsistent with the two acquittals.

[5] In a jury trial on a multi-count indictment against a single accused, a claim of inconsistent verdicts turns on the question whether the verdicts are supportable on any theory of the evidence consistent with the trial judge’s proper legal instructions: see R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at para. 23; R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7. Here, the verdicts will be supportable if the trial judge’s instructions were proper legal instructions that could have led the jury to accept a theory of the evidence producing these verdicts.

[6] The appellant submits that the verdicts are not supportable. He argues that because of the complainant’s age, there was no meaningful difference between the elements of the three offences. Thus, the jury should have either convicted or acquitted the appellant of all three charges. The split verdict was not one a properly instructed trier of fact could reasonably have rendered.

[7] The Crown submits that the verdicts are supportable because the jury was told to consider each count separately; and because it was told that sexual assault required an application of force, but that sexual interference required no use of force, only intentional touching.

[8] To put these submissions in context, I will briefly review the facts giving rise to the charges against the appellant.

B. backgrouNd facts

(1) The complainant M.H.

[9] M.H. was 15 years old in July 2010, when the offences were alleged to have occurred. Her mother and the appellant were close friends. The appellant had known her since she was in grade six.

[10] M.H. had a difficult upbringing because of her mother’s substance abuse. She was made a ward of the Children’s Aid Society and placed with her aunt and uncle. She fought with them frequently and either ran away or was asked to leave their home several times.

(2) The incident

[11] In early July, M.H. had a fight with her aunt and uncle and left their house to stay with friends. On July 9 at about 10:00 p.m., she went to her grandmother’s home. Her grandmother called M.H.’s mother, who picked M.H. up in a taxi and took her to the appellant’s apartment.

[12] A few hours later, M.H. went to sleep in the appellant’s bedroom. She awoke between 3:00 a.m. and 4:00 a.m. Her mother was in the bed beside her talking to the appellant. M.H. said that she was thirsty. Her mother told her that the appellant would get her a drink. M.H. went to the kitchen with the appellant to get a glass of water.

[13] According to M.H., the appellant then suggested that the two of them “go somewhere”. He told M.H.’s mother that they were going to do a “run”, which M.H. understood as a trip to buy drugs.

[14] M.H. testified that they got into the appellant’s car and started driving around. The appellant took M.H. to an empty parking lot behind a building near his apartment. He parked the car and told M.H. to get in the backseat, which she did. He got in the backseat too.

[15] The appellant then pulled down his pants and told M.H. to take off her pants. She did so. She removed her jogging pants and the bathing suit bottoms she was wearing.

[16] M.H. testified that the appellant asked her to give him a blow job. She complied. After the oral sex, the appellant told her to get on top of him. She did. They began to have vaginal intercourse. After some time, the appellant told M.H. to lay down on the seat so he could continue to have vaginal intercourse with her. Again, she complied.

[17] He had vaginal intercourse with her for “not that long”. M.H. thought that he ejaculated. He did not use a condom. She never said “no” or “stop”. She agreed that the appellant did not threaten her with violence or use any kind of physical coercion.

[18] After the intercourse, the appellant gave M.H. a wet wipe. She cleaned off her vaginal area and threw the tissue out of the car. The appellant told her not to tell her mother what they had done. He gave M.H. some “weed” so it would appear that they went on a drug run.

[19] They drove back to the appellant’s apartment, and M.H. went back to bed. The next morning the appellant sat beside M.H. on the couch, touched her leg, and told her “it’s our secret”. M.H. testified that the appellant threatened he would cut her up if she told anyone. She said she would not tell. He gave her some money and jewellery and drove her and her mother to a bus stop.

(3) The forensic evidence

(i) Examination of the complainant

[20] The day after the incident M.H. confided in a friend. The friend told her mother, and her mother told M.H.’s aunt and uncle. M.H.’s aunt then contacted the police. M.H. gave a statement and was taken for an examination.

[21] The examination showed no injuries, and vaginal swabs did not detect any spermatozoa. The expert forensic analyst testified that it was “less likely” sperm would be detectable on an internal swab taken two days after sexual activity.

(ii) The discarded tissue

[22] The police took M.H. to locate the scene of the incident. She was able to identify the parking lot where the appellant had taken her. At the parking lot, she spotted what she believed to be the tissue she had discarded after the incident. The tissue was analysed, and no semen was detected on it.

(iii) DNA evidence

[23] Two days after the incident, the police seized the jogging pants M.H. had worn that night. They were tested for sperm. The initial screening tests were positive.

[24] Two sample areas – the front-centre-right of the crotch panel and the back-right of the crotch panel – were submitted for further testing. On a second screening, these two samples also tested positive. Although no spermatozoa could be seen under a microscope, the analyst testified that in her opinion the fluid on the pants was “most likely” semen.

[25] The appellant matched the major DNA profile found in both the front and back panel of the inside crotch of the complainant’s jogging pants. The probability that a random person had contributed the DNA that matched the appellant was 1 in 7.4 billion (back panel) and 1 in 21 trillion (front panel).

(4) The defence

[26] The defence challenged the credibility and reliability of M.H.’s evidence, and argued that the forensic evidence did not support the charges.

C. analysis

[27] The appellant’s simple, yet powerful proposition is that he “was both convicted and acquitted by the same jury for a single act committed against the same person”. His proposition seemingly has merit:

• The three offences refer to a single instance of sexual activity with a minor;

• The allegations all refer to a single episode lasting only a few minutes;

• The allegations against the appellant depended on the credibility of a single witness: the complainant; and

• The evidence led by the Crown on the three counts was identical.

[28] Moreover, the elements of the three offences were virtually identical. The trial judge’s instructions on what the jury had to find to convict on each offence may be summarized as follows.

• Sexual interference (s. 151 of the Criminal Code):

That M.H. was under 16;

That the appellant touched M.H.; and

That the touching was for a sexual purpose.

• Invitation to sexual touching (s. 152 of the Criminal Code):

That M.H. was under 16;

That the appellant invited M.H. to touch his body; and

That the touching the appellant invited was for a sexual purpose.

• Sexual assault (s. 271 of the Criminal Code):

That the appellant intentionally applied forced to M.H.; and

That the application of force, even an intentional touching, occurred in circumstances of a sexual nature.

[29] M.H.’s age was admitted; the appellant did not claim that he was reasonably mistaken about her age; and as M.H. was under 16, she could not in law consent to the sexual activity.

[30] Thus, the appellant contends that he should either have been convicted or acquitted of all three offences – convicted if the jury was satisfied beyond a reasonable doubt that the incident M.H. recounted took place and acquitted if the jury had a reasonable doubt about whether the incident took place. The verdicts the jury did render, the appellant says, cannot be reconciled. The conviction for sexual interference is inconsistent and therefore unreasonable.

[31] As attractive as the appellant’s contention appears to be, I cannot accept it. As I said in the overview, the test from J.F. and Pittiman is whether the three verdicts are supportable on any theory of the evidence consistent with proper instructions of the trial judge. In my opinion, the verdicts are supportable.

[32] The starting point is the trial judge’s instructions on how the jury was to approach its task. She did not tell the jury to take an all-or-nothing approach. Instead, with the approval of both counsel, she instructed the jury to “consider each charge separately”. She said:

Your verdicts on each charge may, but do not have to be the same. They may be the same, but they do not have to be the same, or they may be different. In each case, the verdict will depend on your assessment of the evidence and application of the legal principles that relate to that charge.

She then went on to outline the legal components of each charge separately and independently.

(1) Sexual interference and invitation to sexual touching

[33] In the light of these instructions, the conviction on the charge of sexual interference and the acquittal on the charge of invitation to sexual touching are reconcilable. The sexual interference charge against the appellant was particularized as touching M.H. with his penis. The invitation to sexual touching charge was particularized as inviting her to touch his penis – in other words, inviting her to perform fellatio.

[34] By convicting the appellant of sexual interference the jury accepted that sexual activity had occurred. By acquitting the appellant of invitation to sexual touching the jury showed that it did not unreservedly accept all of M.H.’s testimony. Although it accepted that the sexual encounter took place, it rejected or at least had a reasonable doubt that the appellant directed M.H. to perform oral sex on him. Of course, as the trial judge instructed the jury, it was entitled to believe some, none, or all of M.H.’s evidence. Thus, the conviction for sexual interference and the acquittal for invitation to sexual touching are supportable. That leaves the conviction for sexual interference and the acquittal for sexual assault to be considered.

(2) Sexual interference and sexual assault

[35] In principle, the offence of sexual interference requires an intentional touching while the offence of sexual assault requires the intentional application of force: see s. 151 and s. 271 of the Criminal Code, respectively. However, “force” includes any touching, no matter the degree of strength or power applied: R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, at para. 10. See also R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 23-25. Thus, if the appellant intentionally touched M.H. in circumstances of a sexual nature, the intentional application of force would be implied.

[36] That is not, however, how the trial judge instructed the jury. Instead, as I will elaborate on, the jury was told that sexual interference required an intentional touching but no use of force. In contrast, the jury was told numerous times that sexual assault required an application of force. The different instructions on whether touching or the application of force was required reconciles the different verdicts and shows that they are supportable.

[37] As M.H.’s age was admitted, on the charge of sexual interference the jury was instructed to consider whether the appellant touched M.H. and if so, whether he touched her for a sexual purpose. On the element of touching, the trial judge told the jury: “Force is not required but an accidental touching is not enough.” The full passage where this instruction was given is as follows:

Touching involves intentional physical contact with any part of [M.H.]’s body. The contact may be direct, for example, with a hand or other part of the body such as a penis. Force is not required but an accidental touching is not enough.

[38] On the charge of sexual assault, the trial judge discussed the element of force, which she had discounted in her instructions on the sexual interference charge. She told the jury to consider two questions. First, did the appellant intentionally apply force to M.H.? Second, was the force applied in circumstances of a sexual nature?

[39] On the first question, the trial judge elaborated on the nature of the force required:

The force applied may be violent, or even gentle. To be an assault, however, [S.L.] must apply the force intentionally. An accidental touching is not an intentional application of force.

The trial judge told the jury that in assessing whether force was applied intentionally it should consider actions or words, including any threats accompanying the application of force.

[40] On the second question on the charge of sexual assault – whether force was applied in circumstances of a sexual nature – the trial judge told the jury that the application of force included intentional touching.

[41] The trial judge’s instructions on the charges of sexual interference and sexual assault – indeed on all three charges – were proper; they were legally correct. For each charge she set out the components of the offence, generally following the relevant sections of Justice Watt’s Ontario Specimen Jury Instructions (Criminal) (Toronto: Thomson Carswell, 2005). Further, both trial counsel had an opportunity to review a draft of the jury charge and discuss any concerns with the trial judge. Neither counsel took issue with the relevant aspects of the trial judge’s final instructions. Moreover, even in this court, the appellant did not argue that the trial judge’s instructions were incorrect in law.

[42] However, three things about the instructions on sexual interference and sexual assault help explain the different verdicts. First, as I said earlier, the trial judge instructed the jury to consider each charge separately. They were to apply their minds to whether guilt was proven beyond a reasonable doubt on each of the offences independently.

[43] Second, though proper, the instructions were not as complete as they could have been. The jury was given correct instructions on sexual interference juxtaposed with correct instructions on sexual assault. Placing the components of these two offences side by side created a contrast between the former’s “touch” requirement and the latter’s “force” requirement. More complete instructions could have explained the relationship between touch and force – that force includes any touching: see Cuerrier. But the trial judge did not clearly tell the jury that the force component of sexual assault was satisfied if the appellant intentionally touched the complainant.

[44] Third, on her instructions on sexual assault the trial judge told the jury it could consider threats accompanying the application of force. In contrast, she did not tell the jury to consider alleged threats on the other counts, and M.H. had agreed that the appellant did not threaten her during the sexual incident.

[45] The reasonable inference from these instructions is that the jury thought the application of force was required to convict on sexual assault but not required on sexual interference. The reasonableness of this inference finds support in counsels’ submissions during the sentencing proceedings. The Crown observed that the jury must have found the appellant did not use force in the sexual touching. Defence counsel agreed. He said: “I agree with my friend when she says that obviously the issue of force was rejected….”

[46] I therefore conclude that the different verdicts are supportable on the instructions of the trial judge and that those instructions, though not as complete as they might have been, were legally correct. Accordingly, the appellant has failed to show inconsistency.

(3) The conviction for sexual interference was reasonable

[47] Finally, I agree with the Crown that the conviction for sexual interference is a fair result, not an inexplicable one. M.H.’s evidence and the appellant’s DNA found in the inside crotch of her pants reasonably support the verdict.

D. conclusion

[48] The verdicts are not inconsistent. I would dismiss the appeal.

Released: Mar. 25, 2013 “John Laskin J.A.”

“JL” “I agree R.G. Juriansz J.A.”

“I agree M. Tulloch J.A.”