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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20210303 Docket: C65984

Fairburn A.C.J.O., Watt and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

M.J.H. Appellant

Counsel: Eric Neubauer, for the appellant Molly Flanagan, for the respondent

Heard: January 26, 2021 by video conference

On appeal from the conviction entered by Justice J. Christopher Corkery of the Superior Court of Justice, sitting with a jury, on July 5, 2018.

Reasons for Decision

Overview

[1] The appellant and complainant met through a dating website. After communicating online for a few days, they decided to meet up on May 21, 2016 and go for a walk. Following the walk, the complainant went to the appellant’s condominium. She had two glasses of wine. The complainant testified that, at some point, the intoxication “hit [her] like a brick wall.” She testified about a series of events that followed, including phases of paralysis where the complainant was unable to move while being attacked by the appellant. The attack was said to include both vaginal and anal intercourse, as well as choking.

[2] At trial, the appellant maintained that the complainant consented to all sexual activity that night, arguing that she was lying about the lack of consent and the alleged choking.

[3] The appellant was charged with two counts: (1) sexual assault; and (2) choking to overcome resistance. The jury returned a verdict of guilty on the first count and not guilty on the second count.

[4] This conviction appeal rests on three grounds:

(a) The trial judge did not properly relate the evidence to the sole issue to be decided – the complainant’s credibility – in the charge to the jury;

(b) The two verdicts are inconsistent; and

(c) The verdict of guilty on the sexual assault count is unreasonable.

[5] For the reasons that follow, the appeal is dismissed.

The Charge to the Jury: Relating the Evidence to the Complainant’s Credibility

[6] The appellant emphasizes that, as it related to the sexual assault count, the only issue to be decided at trial was the credibility of the complainant and the reliability of her evidence. As the Crown’s case rested largely on the complainant’s evidence, her credibility was key to the verdict.

[7] However, as the appellant points out, the complainant’s evidence was not without difficulties on the credibility front. For instance, she misled the police in the initial interview following the alleged events, claiming that she never mixed alcohol with her prescription drugs. She later testified at trial that she had consumed alcohol when taking prescription medication on several prior occasions. As well, the complainant testified to a state of inebriation that is said to have exceeded what her toxicology results were capable of supporting. Notably, the complainant’s evidence on this point is said to have been undermined by her own acknowledgement as to some of the actions she was capable of undertaking shortly after the alleged events, such as moving from one room to another.

[8] A final example of the issues with the complainant’s credibility is with respect to her evidence that she screamed throughout the entire, lengthy encounter. The appellant points out that the complainant’s evidence on this point is highly if not completely suspect, given that multiple defence witnesses, who would have been in a position to hear that screaming had it occurred, testified that they did not hear a woman screaming that night.

[9] In light of these credibility issues, the appellant claims that it was incumbent on the trial judge to provide careful instructions to the jury. He argues that the trial judge was duty-bound to relate the problematic aspects of the complainant’s evidence, including the evidence undermining her testimony, to the central issue of credibility. The appellant argues that the charge to the jury fell short in this regard.

[10] Despite the capable submissions of the appellant’s counsel, we do not give effect to this ground of appeal. While we accept that there were issues with the complainant’s evidence, which needed to be carefully considered by the jury, a functional and contextual approach to the jury charge leads to the conclusion that the jury was well equipped to properly consider the evidence, including its inconsistencies.

[11] Early on in the charge to the jury, the trial judge provided the jury with the tools necessary to consider issues of both credibility and reliability. Included in that instruction was an emphasis on the jury’s need to consider inconsistencies in a witness’s evidence and whether they appeared to result from an “honest mistake” or a “deliberate lie”. The jury was told that a deliberate lie is “always serious” and could taint all of a witness’s evidence.

[12] Later, the jury was instructed to pay particular attention to the complainant’s evidence because the Crown’s case rested “wholly” upon her evidence. Therefore, the trial judge warned it was “essential” for the jury to test the complainant’s evidence “in the light of all of the other evidence presented” (emphasis in original). This instruction was repeated and reinforced just one paragraph later. The jury was then told the following:

In this case there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistencies between the complainant’s evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause you to have a reasonable doubt about the reliability of the witness’s evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least you should look to the totality of the inconsistencies in order to assess whether the witness’s evidence is credible and reliable.

[13] Then, later in the charge to the jury, the trial judge again pointed out the importance of prior inconsistent statements in assessing a witness’s veracity, suggesting that any such differences “may be important in deciding whether or how much you believe of or rely upon the witness’[s] testimony.” The trial judge then used a prior inconsistent statement of the complainant as the first example of how this rule of evidence operates.

[14] Finally, when summarizing the parties’ positions for the jury, the trial judge devoted twice the amount of time to the defence position than the Crown position. The defence position was rooted entirely in what was said to be the complainant’s failure to tell the truth to the jury. The argument that the “complainant [was] not telling the truth” was highlighted multiple times by the trial judge, each time accompanied by a review of the evidence said to undermine the complainant’s version of events.

[15] Accordingly, while the appellant is right that there were credibility issues that the trier of fact had to consider in this case, it is our view that the jury was properly equipped to consider these issues. It is not for this court to reconsider those credibility findings.

The Verdicts are Not Inconsistent

[16] The appellant also argues that the verdicts are inconsistent, as the complainant’s account of choking is “inextricably intertwined” with the sexual assault itself. Therefore, this court must set aside the conviction on sexual assault and align it with the acquittal on choking to overcome resistance. We do not accept this submission because it was open to the jury to arrive upon different verdicts.

[17] The question to be resolved when considering whether 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.

[18] The crime of choking to overcome resistance contains additional elements, beyond those involved in a sexual assault. In addition to the essential elements making up a sexual assault, the Crown must also prove that there was a choking and that the choking was done with the intent to render the complainant “incapable of resistance”: Criminal Code, R.S.C. 1985, c. C-46, s. 246(a).

[19] It was open to the jury to accept all, some, or none of the complainant’s testimony as it pertained to the offence of choking to overcome resistance. The jury was properly instructed to this effect.

[20] The differing verdicts in this case could have resulted from different things. By way of example, the jury may have accepted the complainant’s evidence supporting the conviction for sexual assault but rejected her evidence as to the fact of having been choked. Alternatively, the jury may have accepted the complainant’s evidence on that point but had a doubt about the appellant’s mens rea – the intent to overcome resistance. Equally, the jury may have been uncertain about the complainant’s evidence and unprepared to act on it without some physical evidence to support the complainant’s claim. Notably, while the complainant had no bruising to her neck, she had bruising and a small tear in her anus. While the latter injury was not necessarily evidence of a sexual assault, it was not inconsistent with one either. Yet, the lack of bruising to the neck may have caused the jury to have a reasonable doubt on the count of choking to overcome resistance.

[21] Therefore, it cannot be said that the verdicts are inconsistent.

The Unreasonable Verdict Ground

[22] Finally, the appellant argues that the conviction for sexual assault constitutes an unreasonable verdict. He contends that the acquittal on the choking count is a “red flag”. We have already addressed why we do not see it that way.

[23] The appellant also maintains that there were sound reasons to doubt the complainant’s credibility. We have already set out some of the alleged problematic aspects of her evidence. We pause to note here that the respondent rejects many of the arguments advanced by the appellant as to why the complainant’s credibility was shaken at trial. To the contrary, the respondent argues that many of the factors cited by the appellant are not problematic when viewed in the context of the whole record.

[24] We see no need to resolve each of these areas of alleged concern. As previously explained, the charge to the jury was complete and forceful as it related to the need for the trier of fact to focus in on the issue of credibility and resolve the problems identified by the appellant before considering entering a conviction. Having regard to those legally correct instructions, a verdict of guilty on the sexual assault count was available to the jury.

[25] This court does not act as a thirteenth juror: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 27. In our view, the conviction on the sexual assault count is supportable on “any reasonable view of the evidence”: R. v. Burke, [1996] 1 S.C.R. 474, at para. 7; W.H., at para. 2. Said differently, considered as a whole, the evidence does not preclude the conclusion reached by the jury: R. v. Pannu, 2015 ONCA 677, 328 C.C.C. (3d) 149, at para. 163, leave to appeal refused, [2015] S.C.C.A. No. 498.

Disposition

[26] The conviction appeal is therefore dismissed.

“Fairburn A.C.J.O.”

“David Watt J.A.”

“Grant Huscroft J.A.”