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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Court of Appeal for Ontario

Date: 2019-07-03

Docket: C63651

Panel: Doherty, MacPherson and Benotto JJ.A.

Between:

Her Majesty the Queen Respondent

and

D.C.M. Appellant

Counsel:

• Nicholas A. Xynnis, for the appellant
• Erica Whitford, for the respondent

Heard: July 2, 2019

On appeal from: the convictions entered on November 15, 2016 by Justice M. Garson of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Background

[1] Following a trial before Garson J. of the Superior Court of Justice, sitting with a jury, the appellant was convicted of three offences – invitation to sexual touching, sexual assault and sexual interference. He was acquitted of the offence of assault.

[2] The criminal charges were historical in nature. The complainant was the appellant's step-son. He alleged that the appellant had engaged in inappropriate sexual behaviour, including asking him to watch him masturbate, sexual touching, and one incident of oral sex. The sexual incidents allegedly occurred when the complainant was between the ages of 8 and 13.

[3] The appellant's first trial ended in a mistrial in October 2015 because the jury was unable to reach a verdict. At the second trial, in November 2016, the convictions, and acquittal, set out above were entered.

[4] The appellant appeals his convictions on five grounds. Two are stand-alone grounds and three relate to alleged errors in the trial judge's jury charge.

Ground One: Inconsistent Verdicts

[5] First, the appellant contends that the jury reached inconsistent verdicts in acquitting the appellant of assault, but in finding him guilty of the three sexual offences.

[6] We do not accept this submission. In our view, the jury's verdict of not guilty on the assault charge is not inconsistent with the findings of guilt on the sexual offence charges. The guilty verdicts for all three sexual offences are reconcilable with the not guilty on the assault count based on the differences between the elements of the offences, the nature of the evidence applicable to each count, and the scope of the credibility findings the jury was entitled to make. To cite but one example, because of the complainant's age, consent was not an issue with respect to the sexual offences. On the other hand, on the assault charge, the complainant's own testimony about 'play fighting' with the appellant on occasion made consent a live issue on the assault charge. The jury's verdicts on the various counts in the indictment is, easily, "supportable on any theory of the evidence consistent with the legal instructions given by the trial judge": see R. v. Pittiman, 2006 SCC 9, at para. 7.

Ground Two: Admissibility of Videotaped Statement

[7] Second, the appellant asserts that the trial judge erred in admitting into evidence the appellant's videotaped statement to police following his arrest. In that statement, there was this exchange:

Officer: Asking that … asking someone you know to touch you or asking if you can touch them, that's invitation to sexual touching.

Appellant: That happened.

[8] The appellant went on to admit that he had asked if he could touch the complainant, but the complainant had said 'No'. He also admitted that he propositioned the complainant to engage in oral sex, but the complainant had declined. The appellant maintained that no actual sexual contact had occurred.

[9] The appellant's statement to police was admitted at his first trial after a contested voluntariness voir dire.

[10] At the appellant's second trial, counsel explicitly agreed that the previous ruling would apply. This agreement was based on s. 653.1 of the Criminal Code, which provides:

653.1 In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the … admissibility of evidence … that were made during the trial are binding on the parties in any new trial. …

[11] For the purposes of the appeal, we assume that appeal counsel is entitled to raise this issue. We see nothing "in the interests of justice" to suggest that counsels' shared position at trial should be overturned. Specifically, we note that the judge at the first trial watched the video of the appellant's statement and was, therefore, in a perfect position to assess it.

Ground Three: Jury Instructions on Credibility Across Counts

[12] Third, the appellant asserts that the trial judge erred in his instruction to the jury about how to consider and assess evidence that might be relevant to more than one count in the indictment. Specifically, the appellant says that the trial judge should have instructed the jury that if it did not believe the complainant's evidence that he had been assaulted in a non-sexual manner (the jury acquitted the appellant on the assault charge), then it was entitled to use that disbelief in assessing the sexual assault allegations. In other words, the trial judge should have expressly instructed the jury that it was entitled to assess the complainant's credibility with reference to evidence across all the counts.

[13] We disagree. Nothing in the trial judge's instructions suggested that the jury should compartmentalize its credibility findings. The jury was told that they "must not use evidence that relates only to one charge in making their decision on any other charge." In R. v. A.W.B., 2015 ONCA 185, this court said that this precise formulation "did not prevent the jury from applying findings of the complainant's general credibility to all counts" (paras. 35-36).

[14] In addition, the jury was instructed to consider the evidence in its entirety in deciding how much or little to rely on a witness' evidence. The jury was also told to use common sense in deciding whether to believe none, some or all of a witness' evidence.

Ground Four: Jury Instructions on Consent

[15] Fourth, the appellant contends that the trial judge provided a confusing and unhelpful instruction on the issue of consent as it related to the sexual assault charge.

[16] We agree that a small portion of the jury charge, relating to only the sexual assault charge, was potentially confusing. However, read in its entirety, the trial judge's charge made it clear that because of the complainant's age at the time of the offences, consent was not an element the Crown needed to prove to ground a conviction for sexual assault. Moreover, the trial judge provided a draft jury charge to counsel. Neither counsel objected to the charge on this issue. Indeed, both counsel agreed during the pre-charge conference that consent was not a live issue on the sexual assault count. In any event, the small confusion could not have prejudiced the appellant; indeed, if anything it worked to his benefit.

Ground Five: Jury Instructions on Prior Inconsistent Statements

[17] Fifth, the appellant submits that the trial judge erred in his instruction to the jury about how to use the appellant's prior inconsistent statement, especially in relation to the statements he allegedly made at the 'family meeting' that was called after the complainant made allegations about the appellant's behaviour toward him.

[18] We do not accept this submission. With respect to what the appellant said at the family meeting, the trial judge instructed the jury:

Unless you decide that [the appellant] made a particular remark or statement you must not consider it in deciding this case. You may give anything that you find [the appellant] said as much or as little importance as you think it deserves in deciding this case. It is for you to say.

We see no problem with this instruction.

Disposition

[19] The conviction appeal is dismissed. The appellant has abandoned his sentence appeal.

"Doherty J.A."

"J.C. MacPherson J.A."

"M.L. Benotto J.A."