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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Tyler, 2015 ONCA 599

DATE: 20150908

DOCKET: C57981

Laskin, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Edward Tyler

Appellant

J. Scott Cowan, for the appellant

Amy Rose, for the respondent

Heard: August 25, 2015

On appeal from the convictions entered on April 10, 2013, and the sentence imposed on September 20, 2013 by Justice Anne Mullins of the Superior Court of Justice, sitting with a jury.

Pardu J.A.:

[1] This is an appeal from convictions on two counts of invitation to sexual touching of a child. The jury acquitted the appellant of sexual assault. The appellant argues that on the facts of this case these verdicts are necessarily inconsistent, and submits that the convictions on the charges of invitation to sexual touching must be set aside.

[2] The complainant testified that when she was 13 years old the appellant began making her masturbate him and perform oral sex on him, that he tried to digitally penetrate her, and forced himself on top of her. The complainant said that the appellant would tell her to put her hand or her mouth on his penis, or kiss it. She said the sexual contact occurred 38 or 39 times. The appellant denied participating in any sexual communication or contact.

[3] The trial judge correctly instructed the jury as to the elements of the offences. She instructed the jury that each of the following had to be established beyond a reasonable doubt:

Count 1: Invitation to Sexual Touching

1 The appellant invited the complainant to touch his penis with her mouth.

2 This touching was for a sexual purpose.

Count 2: Initiation to Sexual Touching

1 The appellant invited the complainant to touch his penis with her hand

2 This touching was for a sexual purpose.

Count 3: Sexual Assault

1 The appellant intentionally touched the complainant with his fingers or penis

2 That touching took place in circumstances of a sexual nature.

[4] For the purpose of sentencing, the trial judge interpreted the jury’s verdict as a finding that the invitations to touching for a sexual purpose were made by the appellant, but that actual physical contact did not occur. Consent was no defence in this case because of the complainant’s age.

[5] If the complainant did perform oral sex or masturbate the appellant, it is common ground on appeal that his participation in these events would have amounted to a sexual assault by him.

[6] The appellant argues that there was no suggestion on the evidence that the complainant did not comply with the invitations to sexual touching uttered by the appellant. Therefore, the appellant submits, the acquittal on the sexual assault count cannot be reconciled with the convictions on the invitation to sexual touching counts.

The Legal Test

[7] The standard of review applied to jury verdicts is whether the verdict could reasonably have been rendered by a properly instructed jury acting judicially: “[I]n deciding whether the verdict is one which a properly instructed jury could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience” (R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28).

[8] The test to be applied by a reviewing court to determine whether jury verdicts are inconsistent is “whether the verdicts are supportable on any theory of the evidence consistent with the legal instructions given by the trial judge” (R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 7). On a multi-count indictment against a single accused, “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” (R. v. S.L., 2013 ONCA 176, 300 C.C.C. (3d) 100, at para. 5). As indicated in Pittiman, at para. 6, the authority to set aside a verdict on the ground of inconsistency is based on the jurisdiction accorded by s. 686(1)(a)(i) of the Criminal Code to set aside a verdict “on the ground that it is unreasonable or cannot be supported by the evidence”. The court noted, at paras. 6-7:

Hence, before an appellate court may interfere with a verdict on the ground that it is inconsistent, the court must find that the verdict is unreasonable. The appellant bears the onus to show that no reasonable jury whose members had applied their minds to the evidence could have arrived at that conclusion: R. v. McLaughlin (1974), 1974 CanLII 748 (ON CA), 15 C.C.C. (2d) 562 (Ont. C.A.).

The onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is a difficult one to meet because the jury, as the sole judge of the facts, has a very wide latitude in its assessment of the evidence. [Emphasis in original.]

Analysis

[9] There is no necessary logical inconsistency between the conviction on the invitation to sexual touching counts and the acquittal on the sexual assault count. The jury could have accepted some, none or all of the complainant’s evidence. If the jury concluded that the invitations had been extended for a sexual purpose but that no contact actually occurred, these verdicts would have resulted. These verdicts can be reconciled on a rational and logical basis, however, looking at the record through the lens of judicial experience, it seems unlikely that the jury would have taken that view of the evidence.

[10] It is more likely that the jury did not understand that participation by the appellant in physical contact of a sexual nature between the complainant and the appellant amounted to an assault, even if it resulted from the complainant complying with the appellant’s invitation. They may not have understood that the requirement that the Crown prove that he “intentionally touched” the complainant with his penis included this kind of physical contact. This misunderstanding, coupled with a doubt on whether the appellant digitally penetrated the complainant as she alleged, could have resulted in the acquittal on the sexual assault charge.

[11] The trial judge accurately summarized the evidence, and her instructions on the law were correct, so far as they went.

[12] Trial counsel did not object to any aspect of the jury charge now challenged on appeal. Had the trial judge expressly told the jury that compliance with the invitation to sexual touching amounted to a sexual assault by the appellant, this would have likely enlarged the instances of conduct potentially forming the basis for conviction on the sexual assault count. If the trial judge erred in failing to do so, this error enured to the benefit of the appellant. It does nothing to undermine the convictions for invitation to sexual touching. These convictions were reasonable and were amply supported by the evidence.

[13] There is no reason to believe that the verdicts were the product of any unjustifiable compromise.

[14] Accordingly, for these reasons, the appeal is dismissed.

Released: September 8, 2015 “G. Pardu. J.A”

(JL) “I agree John Laskin J.A.”

“I agree C.W. Hourigan J.A.”