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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..
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. Doell, 2016 ONCA 350
DATE: 20160509
DOCKET: C58889
Cronk, Juriansz and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Alex Doell
Appellant
Robert Sheppard, for the appellant
Moiz Rahman, for the respondent
Heard: May 5, 2016
On appeal from the convictions entered on October 21, 2013 by Justice Alan Bryant of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
[1] The appellant was charged with seven counts of historical sexual offences involving his underage neighbour, Karen H. The charges spanned a three-year period when the complainant was residing with her mother, step-father and siblings at a farm located across the road from the farm owned by the appellant and his wife.
[2] Following a trial by judge and jury, the appellant was convicted of one count of sexual assault and one count of gross indecency. He was acquitted of four other sexual offences and the remaining charge, a count of indecent assault, was withdrawn by the Crown.
[3] The appellant appeals from his convictions.
[4] On appeal, the appellant raises one issue. He submits that the jury’s verdicts are inconsistent and cannot be reconciled. He contends that, as the jury clearly concluded that the complainant’s credibility fell short of establishing the offences of which he was acquitted, including the complainant’s claim that she was raped by the appellant at a conservation area situated near the appellant’s farm, the appellant should have been acquitted of all counts. The appellant says that, given the acquittals on the rape charge and three other sexual offences, there is a realistic concern that the jury must have reached an impermissible credibility compromise in order to convict him of the remaining two counts.
[5] We disagree. In our view, the verdicts are not inconsistent.
[6] Credibility was the central issue at trial. The appellant testified and denied any sexual contact with the complainant, at any time.
[7] The jury was entitled to accept some, all or none of the complainant’s evidence. The four counts on which the appellant was acquitted, including the alleged rape incident at the conservation area, all involved or were related to the complainant’s allegations of vaginal or anal intercourse. In contrast, neither of the two counts of which the appellant was convicted (sexual assault and gross indecency) required intercourse.
[8] By its verdicts, it is apparent that the jury accepted the complainant’s evidence that the appellant engaged in some sexual activity with her before and after the date of the conservation area incident but it was not convinced, to the requisite criminal standard, that the appellant had intercourse with her. As the trial judge noted in his sentencing reasons:
The jury verdicts clearly distinguished between the acts of penetration, which first occurred at the conservation area, and the non-penetration sexual offences, which [preceded] and continued after the alleged incident at the conservation area.
Thus, the essential elements of the six offences that the jury had to consider were different.
[9] In his charge, the trial judge properly instructed the jury on the necessary elements of the charges and on the need to consider each count separately, based on the evidence relating to each count. He also made clear that the jury was entitled to decide how much of a witness’s evidence it chose to believe. Based on these unchallenged instructions and the elements of the offences charged, it was open to the jury to distinguish between the offences involving intercourse and those that did not.
[10] The jury was not required to reject all the complainant’s allegations simply because they did not accept her evidence of forced penetration, beyond a reasonable doubt. The verdicts, therefore, are supportable on the basis of this distinction, consistent with the trial judge’s instructions to the jury. See for example, R. v. A.W.B., 2015 ONCA 185, (2015) 322 C.C.C. (3d) 130; R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381; R. v. B.H., 2015 ONCA 642.
[11] Accordingly, the appeal is dismissed.
“E.A. Cronk J.A.”
“R.G. Juriansz J.A.”
“David Watt J.A.”