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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220413 DOCKET: C65430
Tulloch, Huscroft and Miller JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Pius Bempong Appellant
Counsel: Mark Halfyard, for the appellant Andrew Cappell, for the respondent
Heard: February 22, 2022 by video conference
On appeal from the convictions entered on February 12, 2018 by Justice Michael F. Brown of the Superior Court of Justice, sitting with a jury.
Huscroft J.A.:
OVERVIEW
[1] The appellant was convicted of two counts of sexual interference following trial by judge and jury. He was acquitted of one count of sexual assault and one count of being party to sexual assault. The appellant does not challenge his sexual interference conviction for sexual activity that occurred in the stairwell of the parking garage. This appeal concerns only the sexual conduct alleged to have occurred in the appellant’s car, and raises a single question: Are the jury’s verdicts finding the appellant not guilty of sexual assault but guilty of sexual interference inconsistent, and therefore unreasonable?
[2] If the court concludes that the verdicts are unreasonable and allows the appeal, the appellant seeks a conditional sentence for the sexual interference conviction that he does not contest.
[3] I conclude that although the verdicts appear to be inconsistent, they can be reconciled in accordance with the framework set out recently by the Supreme Court in R. v. R.V., 2021 SCC 10, 455 D.L.R. (4th) 253.
[4] I would dismiss the appeal for the reasons that follow.
BACKGROUND
[5] The complainant, who was 15 years of age at the time of the offences, and the appellant were previously known to each other. The complainant contacted the appellant via social media to wish him a happy birthday. The complainant told him that she had an iPod she wanted to sell and testified that the appellant offered to buy it. She arranged to meet the appellant at Humber College to complete the sale and took public transit to the meeting.
[6] The appellant arrived in his car with two other men, neither of whom the complainant knew. One was the co-accused named “Bobby Joe”, and the other was “Buck”. The complainant got into the rear passenger seat of the appellant’s car. Bobby Joe was in the front passenger seat and Buck was beside her in the back seat. The appellant then drove to the underground parking garage of his residence.
[7] The complainant testified that on arrival at the garage the appellant left her alone in the car, first with Bobby Joe then with Buck. She described non-consensual sexual activity that occurred during the appellant’s absence, but these allegations are not relevant to the determination of this appeal.
[8] After Bobby Joe and Buck left the car, the appellant returned and joined the complainant in the backseat. He took out his penis and asked for oral sex. The complainant testified that she initially refused, but then performed oral sex on the appellant for approximately ten minutes because she felt she had no choice if she wanted to be able to go home.
[9] The complainant testified that the appellant then drove her to the other side of the garage and led her to a stairwell. He told her to pull down her pants and bend over. She said she did not want to. The appellant asked again in an angry tone. He then pulled down her pants and penetrated her vagina with his penis. After a short time he pulled his penis out, forced it into her mouth, and ejaculated.
[10] The appellant testified that he met with the complainant because he thought she was going to give him the iPod as a birthday gift. He said he was surprised that she wanted money for it; they argued, and he did not buy the iPod from her. The appellant said that he refused to give the complainant a ride home. He denied having any sexual contact with the complainant in the parking garage.
[11] The appellant was charged with five counts:
Count 1 – Sexual Assault (oral sex in car);
Count 2 – Sexual Interference (oral sex in car);
Count 3 – Sexual Assault (vaginal sex in stairwell);
Count 4 – Sexual Interference (vaginal sex in stairwell); and
Count 5 – Party to a Sexual Assault with Another Person (being a party to a sexual assault by the co-accused, Bobby Joe)
[12] The parties agreed that consent was not in issue in the case. The issue was whether the incidents alleged to have occurred took place.
[13] The jury found the appellant not guilty on counts 1 and 5 but guilty on all other counts. Count 3, a charge of sexual assault relating to the stairwell, was stayed pursuant to the principles in R. v. Kienapple, [1975] 1 S.C.R. 729.
ISSUES ON APPEAL
[14] The appellant does not challenge his conviction on count 4 (the stairwell sexual interference). He argues that the verdicts on counts 1 and 2 are inconsistent, and therefore unreasonable, because the facts of the two counts arise from the same sexual touching alleged to have taken place in the car. Given that the only issue at trial was whether the Crown had proven whether the sexual contact described by the complainant occurred, there was no legitimate basis for finding him guilty of sexual interference while acquitting on sexual assault, an outcome that he characterizes as an unjust compromise verdict.
[15] The appellant submits, further, that the Crown cannot address the legal error on the sexual assault count because it did not cross-appeal from his acquittal.
DISCUSSION
The absence of a cross appeal is irrelevant
[16] The appellant argues that the Crown cannot address legal error leading to apparently inconsistent verdicts unless it appeals the acquittal. The appellant notes that the Crown was vocal in objecting during the case, even going so far as to raise a concern about inconsistent verdicts concerning count 5 and appearing to suggest a similar concern with counts 1 and 2 during sentencing submissions. Yet, the Crown chose not to appeal his sexual assault acquittal.
[17] In R. v. Plein, 2018 ONCA 748, 365 C.C.C. (3d) 437, this court held that the Crown need not appeal an acquittal in order to resist an appeal of an apparently inconsistent conviction, but it did so in the context of a judge-alone trial rather than a jury trial. Justice Paciocco stated that the Crown would be “well advised” to cross-appeal if it wants to call an acquittal into question, and a majority of this court endorsed his observation in R. v. R.V., 2019 ONCA 664, 147 O.R. (3d) 657, at para. 144. The majority went on, however, to state that a Crown appeal is not necessary in all cases in order for an appellate court to conduct an inconsistent verdict analysis: at para. 145.
[18] This court’s decision in R. v. R.V. was overturned by the Supreme Court. Writing for the majority, Justice Moldaver specifically left open the question whether a Crown appeal was necessary, at paras 46-48:
The parties disagree about what happens when the Crown has not cross‑appealed but nonetheless asserts that a legal error reconciles apparently inconsistent verdicts.
Here, as indicated, the Crown cross‑appealed R.V.’s acquittal on the sexual assault charge. Accordingly, the issue of whether the Crown must cross‑appeal where it seeks to reconcile apparently inconsistent verdicts on the basis of erroneous jury instructions is not before us. Nor indeed has that issue ever been squarely before this Court.
Having regard to the bedrock principle of our adversarial system that where an accused makes an argument, the Crown is entitled to rebut it, there is a viable argument that the Crown need not cross‑appeal to rebut an inconsistent verdict allegation raised by an accused. That said, I recognize that there are tenable arguments to the contrary, relating to the integrity of the legal process and the legitimacy of verdicts. In the end, I consider it prudent to leave the issue outstanding until it comes squarely before us.
[19] Thus, the question remains open, and counsel did not argue otherwise.
[20] In my view, permitting the Crown to respond to an inconsistent verdict argument without having appealed from acquittal does not undermine the integrity of the legal process or the legitimacy of verdicts. That is so because, as this court noted in Plein, by appealing on the basis that the verdicts are inconsistent the appellant necessarily puts the reasons for that inconsistency in issue. The integrity of the legal process and the legitimacy of the appellant’s conviction would be undermined if the Crown were precluded from responding to the appellant’s appeal because it chose not to appeal his acquittal.
[21] If the court concludes that the appellant’s acquittal is the product of legal error, it must take that error into account in deciding whether to either grant the relief the appellant requests or dismiss the appeal pursuant to its power in s. 686(1)(b)(ii) of the Criminal Code, R.S.C. 1985, c. C-46. It would undermine the integrity of the legal process if a legally proper conviction were overturned because of a legally problematic acquittal on another count.
[22] Important policy considerations also militate against a requirement that the Crown appeal from an acquittal in order to respond to an appeal from conviction.
[23] The decision whether to appeal from an acquittal is a matter of prosecutorial prerogative – a discretionary decision that the Crown does not have to justify to the court. Assuming that the Crown is entitled to appeal from an acquittal pursuant to s. 676(1)(a) of the Criminal Code, the decision whether to do so is for the Crown to make. The Crown may decide not to appeal for any number of reasons.
[24] For example, the Crown may consider that it is not possible to run a new trial in the event of a successful appeal. Or it may conclude that it is not in the public interest to put a complainant, family, or witnesses through a new trial even assuming a new trial were possible. Alternatively, the Crown may consider that it is not worthwhile or efficient to appeal an acquittal because a successful re-trial would have little or no impact on sentence, whether because of the application of the Kienapple principle or the likelihood that a concurrent sentence would be imposed.
[25] As Justice Moldaver noted in R.V., it is fundamental to the fairness and the efficacy of the adversarial system that the Crown is permitted to make submissions to rebut an appellant’s argument. The Crown should not be required to bring an appeal it would otherwise choose not to bring in order to do so.
[26] Finally, although Plein and R. v. Horner, 2018 ONCA 971, 370 C.C.C. (3d) 383 arise in the context of judge-alone trials, there is no question that the Crown is entitled to defend apparently inconsistent verdicts resulting from jury trials as well as judge-alone trials, as it did in R.V. Of course, it is more difficult to assess claims of inconsistency in the absence of the reasons that accompany a judge-alone trial, but that simply goes to the Crown’s burden in reconciling the verdicts.
The R.V. framework for reconciling apparent inconsistency
[27] Justice Moldaver set out the following approach in R.V. at paras. 33-34:
Where the Crown attempts to rebut an apparent inconsistency on the basis of a legal error, the burden shifts from the accused to the Crown. That burden is heavy. The Crown must satisfy the court to a high degree of certainty that there was a legal error in the jury instructions and that the error:
(1) had a material bearing on the acquittal;
(2) was immaterial to the conviction; and
(3) reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct.
If the court can find that these elements are satisfied with a high degree of certainty, the verdicts are not actually inconsistent. Instead, the legal error caused the jury to convict the accused either on different evidence or a different element than it believed was necessary for the charge on which it acquitted the accused. Any apparent inconsistency in the verdicts is thus reconciled, as the jury did not find the accused both guilty and not guilty of the same conduct. It follows that the jury did not act unreasonably in rendering their verdicts.
[28] In short, the Crown bears the burden of establishing legal error in the instructions – error that was both material to the acquittal and immaterial to the conviction. The burden is a heavy one, but the Crown succeeds in reconciling apparently inconsistent verdicts if it establishes that the jury did not find the appellant both guilty and not guilty of the same conduct.
[29] Justice Moldaver emphasized, at para. 35, that the court is not to engage in improper speculation about the jury’s decision:
The appellate court must be able to retrace the reasoning of the jury with a sufficiently high degree of certainty to exclude all other reasonable explanations for how the jury rendered its verdicts. If it can, any concern about speculation falls away.
The verdicts are not inconsistent
[30] I conclude that the Crown meets the heavy burden established by the R.V. framework.
[31] In this case, as in R.V., the appellant was convicted of sexual interference but acquitted of sexual assault based on the same evidence. And in this case, as in R.V., the Crown argued that the apparently inconsistent verdicts could be explained by erroneous instructions given by the trial judge concerning the law of sexual assault. In R.V., Justice Moldaver concluded that the trial judge left the jury with the mistaken impression that the element of “force” required for sexual assault was different than the element of “touching” required for sexual interference. As he explained at para. 52:
The word “force” is commonly understood to mean physical strength, “violence, compulsion, or constraint exerted upon or against a person”. However, as a legal term of art, the element of force has been interpreted to include any form of touching. Put simply, although the words “touch” or “touching” and “force” are distinct, in some circumstances, including those that apply here, they mean the same thing in law. [Emphasis added; citations omitted.]
[32] Thus, Justice Moldaver concluded that it was incumbent on the trial judge to instruct the jury that the force required for sexual assault was the same as the touching required for sexual interference. The failure to so instruct the jury constituted non-direction amounting to misdirection.
[33] The same failure occurred in this case.
[34] The trial judge did not have the benefit of R.V. He instructed the jury for purposes of the sexual assault counts that the Crown had to prove that the appellant intentionally applied force to the complainant and that the force took place in circumstances of a sexual nature. In defining “force”, the trial judge told the jury:
The application of force may be direct, for example, by the accused person using a part of his body, such as a hand, finger, foot, or penis or indirect, for example, by the accused person using an object. The force applied may be violent, or even gentle. Force includes any physical contact with another person, even a gentle touch. To be an assault, however, the accused person must apply the force intentionally. An accidental touching is not an intentional application of force.
[35] The trial judge instructed the jury that on the sexual interference counts, the Crown was required to prove that the complainant was under 16 years of age at the time; that the appellant touched her; and that the touching was for a sexual purpose. He then defined “touching” for the jury as follows:
Touching involves intentional physical contact with any part of [the complainant’s] body. The contact may be direct, for example, touching with a hand or other part of the body, or indirect, for example, touching with an object. Force is not required but an accidental touching is not enough.
[36] These instructions failed to achieve what Justice Moldaver said in R.V. was required: they failed to make clear that the force required for sexual assault was the same as the touching required for sexual interference. Instead, the instructions caused confusion by suggesting that force and touching were different concepts.
[37] The jury’s confusion is evident in questions it asked of the judge:
[W]e would like some clarification with regards to the definition of sexual assault, specifically, with regards to the intentional application of force…
Can words and/or circumstance, such as location and “duress” be considered this sort of force? For example, can we consider a command to perform a sexual act, force? [Emphasis in original.]
[38] The trial judge answered the question “No” and repeated what he had said earlier in his charge about the meaning of force.
[39] A second question from the jury, this one concerning the linkage between several counts on the decision tree, further demonstrated the jury’s confusion of the concepts of touching and force. The jury asked:
Why, in the decision tree, does count five [alleging the appellant to be a party to a sexual assault committed by the co-accused] depend on count six [alleging a sexual assault by the co-accused], but not on seven [alleging sexual interference by the co-accused].
[40] Crown counsel told the trial judge that the jury “needs to be told that the application of force in a sexual assault is the same thing as the touching in the sexual interference”. Crown counsel reminded the trial judge of her submission that “it would be inconsistent for them to find that there’s a sexual interference, but for them not to find that there’s a sexual assault.” She specifically requested that the jury be told that “the application of force in counts 1,1, [sic] 3 and 6 is the same as the touching in count 2, 4 and 7”. The trial judge declined to do so and answered the jury’s question by clarifying which counts referred to which alleged offences and the parties involved in them.
[41] I agree with the Crown’s submission that the trial judge’s instructions left the jury with the impression that sexual assault required force beyond mere touching, but sexual interference did not. This explains why the jury acquitted the appellant of sexual assault while finding him guilty of sexual interference on the same set of facts: the jury was not satisfied that the appellant applied force to the complainant in the car but was satisfied that he had engaged in sexual touching. And as the Crown points out, this explanation appears to have been acknowledged by the trial judge. In the context of his sentencing reasons, he stated that he did not regard the jury’s verdicts on counts 1 and 2 to be inconsistent because the instructions he gave for sexual assault and sexual interference were different.
[42] The failure to direct the jury that the force required for sexual assault was the same as the touching required for sexual interference constitutes non-direction amounting to misdirection, as in R.V. In all the circumstances, it cannot be said that the jury found the appellant both guilty and not guilty of the same conduct. The impact of the error was limited to the acquittal on the sexual assault count – an error that inures to the appellant’s benefit. The apparently inconsistent verdicts are, therefore, explained to the high degree of certainty R.V. requires.
CONCLUSION
[43] I would dismiss the appeal.
Released: April 13, 2022 “M.T.” “Grant Huscroft J.A.” “I agree. M. Tulloch J.A.” “I agree. B.W. Miller J.A.”