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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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

Date: 2017-06-19

Docket: C61035

Panel: Feldman, MacPherson and Benotto JJ.A.

Between

Her Majesty the Queen

Respondent

and

K.D.M.

Appellant

Counsel:

K.D.M., appearing in person

Ingrid Grant, duty counsel

Alison Wheeler, for the respondent

Heard: May 11, 2017

On appeal from: The conviction entered by Justice Brian W. Abrams of the Superior Court of Justice, sitting with a jury, on December 2, 2014 and from the sentence imposed on August 10, 2015.

Benotto J.A.:

A. Overview

[1] The appellant was charged with sexual assault, sexual interference and invitation to sexual touching in connection with his daughter who was under the age of 16. A jury convicted him of sexual interference and invitation to sexual touching, but found him not guilty of sexual assault. He was sentenced to four years' imprisonment on the count of invitation to sexual touching and one year imprisonment (concurrent) on the count of sexual interference.

[2] The appellant appeals his conviction on the basis that, having been acquitted of sexual assault, it was inconsistent for the jury to convict him of sexual interference. He seeks an acquittal. The appellant also seeks leave to appeal his sentence for the count of invitation to sexual touching and seeks a reduction in sentence on that count. He submits a four-year sentence for invitation to sexual touching is inconsistent with the acquittal on the count of sexual assault.

[3] For the reasons that follow, I would dismiss the conviction appeal. I would grant leave to appeal sentence but would dismiss the appeal.

B. Background Facts

[4] The appellant is the complainant's father. The appellant was not involved in the complainant's life until she was 13 or 14.

[5] She testified that, on a daily basis, she was required to give her father "ups". This involved stimulating his penis with her hands and her nose. She also touched his testicles. She did this every day and testified that she had a daily quota of 40 ups. In order to meet the quota, she would be required to do this before and after school and before and after dinner. He ejaculated about half of the time. On her 16th birthday, the complainant told her father that she did not want to do the ups anymore. He kicked her out of the house.

[6] The complainant also testified about "rubs" that the appellant would give her. These involved him touching her pubic area and her buttocks.

[7] These facts were the basis for the charges of sexual assault, sexual interference and invitation to sexual touching. A jury found the appellant not guilty of sexual assault, but guilty of sexual interference and invitation to sexual touching.[1]

C. Issues

[8] The issue on the conviction appeal is whether the jury's verdict of guilty on count three (sexual interference) is inconsistent with its verdict of not guilty on count one (sexual assault). On the sentence appeal, the issue is whether a sentence of four years for invitation to sexual touching is inconsistent with the jury's verdict of not guilty on the count of sexual assault.

D. Positions of the Parties

[9] On the conviction appeal, the appellant submits the fact that the jury found the appellant not guilty of sexual assault means the jury could not have found that the elements of sexual interference were proven beyond a reasonable doubt.

[10] With respect to the sentence appeal, the appellant submits the sentencing judge failed to consider the acquittal on the sexual assault in sentencing the appellant for invitation to sexual touching. Without a finding of guilt on the count of sexual assault, the appellant argues it was improper for the sentencing judge to consider the ups and submits a sentence of four years' imprisonment is therefore unfit.

[11] The Crown submits it is possible to reconcile the jury's finding of not guilty of sexual assault and guilty of sexual interference given the way the jury was instructed.

[12] The Crown's position on the sentence appeal is that the four-year sentence for invitation to sexual touching is fit. The Crown alleges it is clear from the record that the jury understood sexual assault to require the appellant to have touched the complainant, and not the other way around. Therefore, that the jury found the appellant not guilty of sexual assault does not mean the jury found the ups did not happen. The sentencing judge was therefore permitted to consider the ups when sentencing the appellant for invitation to sexual touching.

E. Analysis

(1) Conviction

[13] I have concluded that the jury verdicts are not inconsistent.

[14] The legal test applicable when a reviewing court is faced with an allegation of inconsistent jury verdicts 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. Where, as here, the accused was tried on a multi-count indictment, "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. L(S), 2013 ONCA 176, 300 C.C.C. (3d) 100, at para. 5; R. v. Tyler, 2015 ONCA 599, [2015] O.J. No. 4653, at para. 8.

[15] The jury instructions with respect to sexual assault, juxtaposed with the instructions on sexual interference and invitation to sexual touching would have led the jury to conclude that, to convict the appellant of sexual assault, it was the appellant who applied force of a sexual nature against the complainant. With respect to sexual interference and sexual touching, force by the appellant was not required. To demonstrate this, I first review the elements of each offence and then consider the trial judge's corresponding instructions to the jury.

(a) Sexual assault and sexual interference

[16] Assault is defined in s. 265(1) of the Criminal Code, R.S.C. 1985, c. C-46:

A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

[17] In R. v. Chase, [1987] 2 S.C.R. 293, at p. 302, the court defined sexual assault as an assault "committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated."

[18] Sexual assault is charged as count one on the indictment. It is not particularized.

[19] The trial judge's instruction on sexual assault emphasized the "force" requirement throughout:

• For you to find [the appellant] guilty of sexual assault, Crown counsel must prove each of these essential elements:

  1. that [the appellant] intentionally applied force to [the complainant]; and
  2. that the force [the appellant] applied took place in circumstances of a sexual nature.

• Did [the appellant] intentionally apply force to [the complainant]?

• The application of force may be direct, for example, by [the appellant] using part of his body, such as his hand or his penis.

• The force applied may be violent, or even gentle. To be an assault, however, [the appellant] must apply force intentionally.

• If you are not satisfied beyond a reasonable doubt that [the appellant] intentionally applied force to [the complainant], you must find [him] not guilty. [Emphasis added.]

[20] Contrast this to the instructions with respect to sexual interference.

[21] Sexual interference is set out in s. 151 of the Code:

151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

[22] Sexual interference is charged as count three on the indictment. Unlike the charge in count one, the indictment with respect to this count is specific. It charges the appellant as follows:

[The appellant] … did for a sexual purpose touch [the complainant] … with a part of his body, to wit his hands, by rubbing her buttocks and pubic area.

[23] In his charge to the jury on count three, the trial judge said:

• Touching involves intentional physical contact.

• Force is not required.

[24] In convicting the appellant of sexual interference, the jury clearly concluded the rubs happened. But, on the facts of this case, the jury's conclusion that the rubs happened does not inevitably lead to a finding of guilt on the count of sexual assault. This is because of the requirement for there to be "force" to convict on sexual assault, as compared to sexual interference, which requires only "touching".

[25] In my view, the reasonable inference from these instructions as a whole is that the jury understood that force was necessary to convict on sexual assault but not required to convict on sexual interference.

[26] The misunderstanding that arises when these charges are explained is not unique to this case. In R. v. Tremblay, 2016 ABCA 30, 334 C.C.C. (3d) 520, the distinction between the colloquial concept and the legal concept of force was explained. There, a jury convicted the appellant of sexual interference but acquitted him of sexual assault. Fraser C.J.A. noted, at para. 10, "while lawyers and judges realize that 'force' as a legal term of art under s. 265 includes touching, the question is whether that was made clear to this jury. We conclude it was not."

[27] This court has also considered the issue. In L(S), referenced above, the appellant was similarly convicted of sexual interference but acquitted of sexual assault. The appellant submitted the verdicts were inconsistent. Having reviewed similar jury instructions, Laskin J.A. said, at para 43:

[T]hough 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. 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. [Citations omitted.]

[28] Although the jury instruction was legally correct, here, as in L(S), the trial judge did not clearly explain that the force component of sexual assault was satisfied if the jury found the rubs happened. The verdicts are further explained by the fact that the trial judge instructed the jury to consider each charge separately: L(S), at para. 42. Accordingly, I conclude the jury's verdicts on the counts of sexual assault and sexual interference are not inconsistent.

[29] I turn now to demonstrate similar reasoning with respect to the counts of sexual assault and invitation to sexual touching.

(b) Sexual assault and invitation to sexual touching

[30] Section 152 of the Code prescribes the elements of invitation to sexual touching:

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

[31] Invitation to sexual touching is charged as count four. Again, the indictment is particularized as follows:

[The appellant] … did for a sexual purpose counsel [the complainant] … to touch directly with her hands, mouth and nose, his penis.

[32] Clearly, this count refers to the ups, and the trial judge confirmed this by referring to the complainant's evidence about the ups in his jury instruction. The charge with respect to this count focused on the evidence that the appellant counselled, suggested or recommended the ups.

[33] As outlined above, the trial judge's instruction to the jury on sexual assault explained the need to find that the appellant applied force to the complainant in circumstances of a sexual nature. The instruction did not, however, explain that the elements of sexual assault could be satisfied if the jury believed that the ups had occurred. Instead, the trial judge's instructions to the jury, reproduced in part above, would have led the jury to infer that to convict on sexual assault, it must be the appellant who applied force to the complainant by touching her, not the other way around.

[34] The jury's impression on this issue is demonstrated by the question posed during deliberations:

[R]egarding Count 1, sexual assault with respect to "application of force may be direct", must the force be exclusively physical or does psychological or emotional force to manipulate the victim qualify as force?

[35] Clearly, the jury was considering whether the force or touching had to be by the appellant upon the complainant. Regrettably, the trial judge did not address this implied concern. Instead, he answered as follows:

Force includes any touching, no matter the degree of strength of power applied. Thus if [the appellant] intentionally touched [the complainant] in circumstances of a sexual nature, the intentional application of force would be implied.

Thus, to answer your question, does psychological or emotional force to manipulate the victim qualify as force? The answer is no.

[36] A more accurate response would have been to explain the relationship between force and touching and also to explain that the touching by the complainant in response to the appellant's invitation to do so constituted sexual assault.

[37] This court dealt with a similar situation in Tyler, referenced above, where the appellant had been convicted of invitation to sexual touching and acquitted of sexual assault. In concluding the verdicts were reconcilable, Pardu J.A. said, at paras. 10 and 12:

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.

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.

[38] At the conclusion of the charge, the jury would have been left with the instructions that: (i) sexual assault involved the appellant applying force to the complainant; (ii) sexual interference involved the rubs; and (iii) invitation to sexual touching involved the request for the ups. It is not inconsistent that the jury would conclude – based on these instructions – that the appellant did not apply force to the complainant for the ups, performed the rubs and requested the ups.

[39] The judge's charge to the jury on count one (sexual assault) created the impression that the appellant had to exert force on the complainant, and it was he who had to have touched her. This impression was further entrenched by the contrast in the particulars of the indictment and the jury instructions on counts three (sexual interference) and four (invitation to sexual touching). Consequently, the acquittal on count one is not inconsistent with the convictions on counts three and four.

[40] I would therefore dismiss the appeal as to conviction. I now turn to the sentence appeal.

(2) Sentence

[41] The appellant submits the trial judge erred by relying on the ups to sentence him to four years on the invitation to sexual touching conviction. Again, it is submitted that the acquittal on sexual assault meant that the jury was not satisfied that the ups took place. Following my reasoning set out above, I do not agree.

[42] On sentencing, a judge is "bound by the express and implied factual implications of the jury's verdict": R. v. Brown, [1991] 2 S.C.R. 518, at p. 523. This requirement has been codified in s. 724(2) of the Code. Where the factual basis of a jury verdict is unclear, however, the sentencing judge is entitled to make his or her own determination of the facts, so long as that view is consistent with the jury's verdict: Brown; and R. v. Roncaioli, 2011 ONCA 378, 271 C.C.C. (3d) 385. A sentencing judge "must not accept as fact any evidence consistent only with a verdict rejected by the jury": R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17; and R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at paras. 55-59.

[43] There was evidence at trial to support a finding that the ups occurred. As explained above, a finding that the ups occurred is not inconsistent with the acquittal on sexual assault. It was therefore open to the trial judge to rely on the ups in sentencing the appellant for invitation to sexual touching. Accordingly, I would not interfere with the sentence.

F. Disposition

[44] I would dismiss the appellant's conviction appeal. I would grant leave to appeal the sentence but dismiss the sentence appeal.

Released: June 19, 2017

"M.L. Benotto J.A."

"I agree. K. Feldman J.A."

"I agree. J.C. MacPherson J.A."

[1] The appellant was also charged and convicted of assault in connection with an incident where he pushed and choked the complainant outside of the house. This conviction is not at issue on appeal.