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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. B.H., 2015 ONCA 642

DATE: 20150923

DOCKET: C59187

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.H.

Appellant

Robert Sheppard, for the appellant

Kevin Rawluk, for the respondent

Heard: September 14, 2015

On appeal from the conviction entered on January 24, 2014 by Justice Ian F. Leach of the Superior Court of Justice, sitting with a jury, and the sentence imposed by Justice Ian F. Leach on July 25, 2014.

Epstein J.A.:

[1] The appellant was charged with two counts of gross indecency arising out of complaints made by his nephew, A.G. The events forming the basis of the charges took place in 1973, when the appellant was eighteen and A.G. was nine or ten years of age.

[2] A.G. testified that, on two occasions, the appellant made him perform oral sex in return for permission to use the pool table in the appellant’s home. The first charge related to a brief encounter that took place in the backroom of the appellant’s home, where A.G. said the pool table was then located. According to A.G., on that occasion the appellant did not ejaculate and A.G. played pool afterwards. The second charge related to an incident in the appellant’s bedroom. This time the appellant ejaculated. A.G. thought the appellant had peed in his mouth and ran home without playing pool.

[3] The appellant testified, denying that he sexually abused A.G. He took the position that A.G. fabricated the abuse because the appellant’s mother had died, leaving valuable property to the appellant.

[4] A.G. reported the incidents to the police in 2012.

[5] Following a trial with a judge and jury, in which credibility was the key issue, the appellant was acquitted on the first count and convicted on the second. The trial judge sentenced the appellant to an 18-month conditional sentence on terms proposed by defence counsel. The terms included strict house arrest.

THE ISSUES

[6] The appellant appeals his conviction and sentence. He advances two arguments with respect to his conviction appeal.

[7] First, the appellant submits that the trial judge erred by failing to instruct the jury that A.G.’s entire testimony could be taken into account in assessing his credibility in relation to each count. Because of this error, the appellant says, the verdicts the jury rendered are inconsistent.

[8] The second ground of appeal arises out of the appellant’s theory about why A.G. fabricated the complaints against him. The appellant submits that the trial judge erred by failing to instruct the jury that, even if it rejected the appellant’s theory, it had to consider whether he may have been honestly mistaken about A.G.’s motive to fabricate. And, if the jury concluded that the appellant was, in fact, honestly mistaken, then it should not use the appellant’s evidence on this issue as adversely affecting its assessment of his credibility.

[9] On sentence, the appellant seeks to vary the terms of his conditional sentence.

CONVICTION APPEAL

1. Are the verdicts reconcilable?

[10] The appellant argues that the incidents alleged in both counts were virtually identical. There was no corroboration of either incident – the jury’s verdict inevitably rested on its assessment of A.G.’s credibility. The jury’s verdict of not guilty on count 1 can only be interpreted as a finding that A.G.’s evidence was not credible, making this verdict irreconcilable with the verdict of guilty on count 2, which required a finding that A.G.’s evidence was credible.

[11] In support of this argument, the appellant submits that the trial judge erred by failing to instruct the jury that its credibility findings in relation to A.G. on one count could be considered in its determination whether the Crown had proven its case in relation to the other count. This error, the appellant argues, could have led to the inconsistency in the verdicts.

[12] I disagree with both parts of the appellant’s argument relating to this issue.

Did the trial judge err in instructing the jury?

[13] First, I find no fault with the trial judge’s instructions.

[14] The trial judge correctly instructed the jury to consider each charge separately and notably told them that their verdicts on the two counts did not have to be the same.

[15] Nothing in the instructions suggested that the jury should compartmentalize its credibility findings. Significantly, nothing the trial judge said led the jury to believe that it could not apply its general credibility findings about A.G. to both counts.

[16] In fact, in the following passage in his charge, the trial judge focused on the need for an overall assessment of the credibility of the witnesses:

I emphasize you do not decide whether something happened simply by comparing one version of events with another and choosing one of them. You have to consider all of the evidence and decide whether you’ve been satisfied beyond a reasonable doubt that the events that form the basis of the crimes charged in fact took place.

[17] Moreover, the jury was repeatedly instructed to use its common sense in its determination of the verdicts. As a matter of common sense, an assessment of the overall credibility of a witness’s evidence is inevitably influenced by the totality of the evidence: R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 25.

[18] Finally, I note that the trial judge provided trial counsel with a draft of the jury charge and no objection was made before or after it was delivered.

Were the verdicts inconsistent?

[19] 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).

[20] 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.]

[21] In my view, there is no logical inconsistency between the acquittal on the first count and the conviction on the second count.

[22] In a case in which the accused gives evidence, an acquittal does not necessarily mean the complainant was not believed. The jury may accept or reject some, none, or all of a witness's evidence. The appellant's argument is premised on the assumption that if the jury rejects some of the complainant's evidence, it must reject it all. This is clearly not the law.

[23] As the Supreme Court noted in Pittiman, at para. 8, if there are multiple counts against a single accused, "different verdicts may be reconcilable on the basis that the offences are temporally distinct, or are qualitatively different, or dependent on the credibility of different complainants or witnesses." That is what we have here. While the two charges stem from the appellant’s response to A.G.’s requests to play pool, that is their only link. Otherwise, they relate to two distinct incidents, at different times, in different parts of the appellant’s house, and with different impacts on A.G.

[24] In my view, it cannot be said that the acquittal on the first count must be interpreted as a rejection of A.G.’s credibility, thereby disentitling the jury from convicting the appellant on the second count. Based on A.G.’s evidence, the events involved in count 1 were related to a location in the house where the pool table was kept. Given the contradictory evidence about whether the pool table was located where A.G. claimed it was, the jury could have had a reasonable doubt about the incident involved in count 1. By contrast, other than the divide between the versions of events described by A.G. and the appellant, there was no controverted evidence with respect to the incident underlying count 2. Moreover, it was open to the jury to regard A.G.’s evidence that on the second occasion the appellant ejaculated as something that would have a lasting impact on A.G., making that aspect of his testimony more reliable.

[25] There is no reason to believe that the verdicts were the product of any unjustifiable compromise. The conviction on the second count was reasonable and amply supported by the evidence.

[26] I would therefore not give effect to this ground of appeal.

2. Were the trial judge’s instructions incomplete with respect to the appellant’s assertion that A.G.’s false allegations were the product of his dissatisfaction over the inheritance?

[27] The appellant testified that he believed A.G. made these allegations against him because of the division of the appellant’s mother’s estate. The appellant submits that the trial judge failed to instruct the jurors that, even if they found that the appellant’s belief lacked a factual basis, they could conclude that the appellant was honestly mistaken about the real motivation behind A.G.’s allegations. Thus, a rejection of the appellant’s theory would not necessarily affect the jury’s assessment of his credibility.

[28] The difficulty with this argument is that the jury was, in fact, instructed in almost the precise language the appellant now suggests. The trial judge explicitly told the jury to consider whether any inconsistencies in a witness’s evidence were attributable to honest mistakes or deliberate lies. He instructed the jury:

Did [the inconsistencies] reflect honest mistakes, or deliberate lies in your view? Were there any sensible explanations offered for the inconsistencies, and on the whole did such inconsistencies really make the main points of that witness’s testimony more or less believable and reliable?

[29] The appellant’s argument must fail.

SENTENCE APPEAL

1. Should the house arrest terms of the conditional sentence order be varied?

[30] The appellant submits that while the conditional sentence imposed accords with the position taken by defence counsel at trial, the terms of the sentence are unduly restrictive. The order does not allow the appellant to leave his home except for medical purposes. He cannot attend to personal necessities like purchasing groceries, going to the bank or getting a haircut. In fact, the order does not allow him to be outside of his actual residence. He cannot attend to property maintenance demands, such as mowing the lawn or shovelling snow. This places an undue burden on the appellant’s wife, particularly since the parties live on a large rural property.

[31] The appellant therefore seeks a variation of the terms of the conditional sentence order to allow him to be

• out of his house for a scheduled four hours per week to attend to his personal affairs;

• outside his house but within the boundaries of his property, so as to be able to take care of home and property maintenance tasks; and

• out of his house for purposes and during time periods allowed in writing by his sentence supervisor (for instance, to attend at the bank with his wife to sign financial documents).

[32] In oral argument, the Crown quite fairly conceded that the absence of any condition allowing the appellant to leave his residence at all, even with the prior written permission of his supervisor, is unreasonable. In my view, the circumstances of this case, together with the Crown’s concession, support the conclusion that a conditional sentence this restrictive is clearly unreasonable, a conclusion that gives this court jurisdiction to vary the sentence: see R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 48.

[33] I would therefore vary the terms of the conditional sentence to allow the appellant, with prior written consent of his supervisor, to leave his residence for up to four hours per week to attend to personal affairs.

[34] I see no basis for appellate intervention in relation to the other terms of the conditional sentence that the appellant seeks to vary.

DISPOSITION

[35] I would therefore dismiss the conviction appeal. I would grant leave to appeal sentence, and allow the sentence appeal in part by varying the terms of the conditional sentence as indicated above.

Released: September 23, 2015 (EAC)

“Gloria Epstein J.A.”

“I agree E.A. Cronk J.A.”

“I agree David Brown J.A.”