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), (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    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1) (sexual
    intercourse with a female under 14) or (2) (sexual intercourse with a female
    between 14 and 16) or section 151 (seduction of a female between 16 and 18),
    153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157
    (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)      two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b)      on application
    made by the complainant, the prosecutor or any such witness, 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).

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. R.H., 2013
    ONCA 126

DATE: 20130301

DOCKET: C54582

Rosenberg, MacPherson and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.H.

Appellant

David E. Harris, for the appellant

Elise S. Nakelsky, for the respondent

Heard: February 19, 2013

On appeal from the convictions entered on September 13,
    2011 by Justice Paul J. S. Kowalyshyn of the Ontario
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals from his conviction for sexual interference. The
    assault allegation depended upon the evidence of the young victim, who
    testified to a brief touching by the appellant, her uncle. The appellant
    testified, and denied the allegation. The grounds of appeal arise out of what
    Crown counsel on appeal properly concedes was improper cross-examination by the
    trial Crown, not Ms. Nakelsky. Following the hearing of the appeal, the court
    indicated that the appeal was allowed and an acquittal entered, with reasons to
    follow. These are those reasons.

[2]

The improper cross-examination and the re-examination that followed it were
    as follows:

Q. So Mr., Mr. [H.], Im going to suggest that, that you really
    have no explanation at all about where this allegation would come from?

A. No.

Q. Okay. Certainly from what your evidence is, its not like
    shes confusing some innocent encounter that you had with her.

A. No.

Q. Doesnt match up with anything that you can even recall
    remotely that would  that she might have crossed her wires on.

A. No.

Q. Okay. And I take it from your answers earlier that you, you
    felt quite close with [J.]

A. Very.

Q. Okay. And youve never had experience with her making up
    lies about people before.

A. I do not know [J.] to be a liar.

Q. Im going to suggest Mr. [H.] that, you know, youve
    said you dont know her to be a liar, its not even remotely consistent with
    something, some innocent contact that youve had with her, that the only
    explanation really is that what [J.] was describing is something that happened.

A. Please reword the question, I didnt get that.

Q. Im suggesting to you that [J.]s not lying and its not
     she hasnt crossed her wires on some innocent contact that you had with her
    because youve said its not remotely like anything youve  contact youve had
    with her. That the only explanation is that what shes described is true.

A. I do not know.

[Crown Counsel]: I dont have any other questions, Your Honour.

THE COURT: Any...

[Defence Counsel]: I just have one question in re-examination.

RE-EXAMINATION BY [DEFENCE COUNSEL]:

Q. My friend asked you  the last question he asked you,
    which was almost a three-part question, but as I understand it he was asking
    you whether or not what [J.]  he, he said, what [J.] had told the police must
    be true, regarding your conduct. Did you understand that to be his question?

A. I understood that to be his question.

Q. Okay. And whats your answer?

A. No.

Q. Thank you. [Emphasis Added]

[3]

The cross-examination violated the well-known principle stated in cases
    going back to
R. v. Markadonis
, [1935] S.C.R. 657, that it is improper
    to ask an accused for his opinion of the veracity of another witness. The
    question is unfair and where, as here, that witness is the person making the
    central allegation against the accused, the question undermines the presumption
    of innocence. As the authors of
McWilliams Canadian Criminal Evidence
note at 27-23, the question also forces the accused to advocate the case when
    his role is to testify as a witness: see Mr. Justice S. Casey Hill, David M.
    Tanovich and Louis P. Strezos, eds.,
McWilliams Canadian Criminal Evidence
,
    loose-leaf, 4th ed. (Aurora, ON: Canada Law Book, 2009).

[4]

In some cases it may be possible to say, as did this court in
R. v.
    Daly
(1992), 57 O.A.C. 70, that no substantial wrong was occasioned
    because the question does no more than point out the obvious; the stories of
    the accused and the complainant are diametrically opposed. In other cases, and
    in our view this is one of them, the trier of fact may use the accuseds
    inability to account for the complainants story to weigh against the
    credibility of the accused. The appellant in this case could not be called upon
    to give his opinion of whether the complainant was lying. It is not surprising
    that his answer to the confusing and improper question was equivocal.

[5]

Regrettably, the trial judge, in reasons that are otherwise a careful
    and thorough review of the evidence and the applicable legal principles, used
    the appellants response to the improper question to find against him. The
    trial judge said the following in his reasons:

Now this of course does not end the matter. Notwithstanding
    that there is no onus on the accused to do anything in the case, the court did
    have the benefit of hearing directly from Mr. [H.] For all but the very end of
    his evidence, Mr. [H.] was very clear and concise. He unequivocally and
    categorically denied all of the allegations against him. He specifically denied
    that he sexually assaulted his niece in any way, that he pulled her pants down
    at any time, that he exposed his penis to her, that he rubbed his penis against
    her vagina, that he did anything to [J.] that could be misinterpreted as being
    sexual in any way. He also readily acknowledged that there were times that he
    would have been alone with [J.], but was steadfast in denying that anything
    inappropriate let alone anything sexually inappropriate had happened between
    them. In cross-examination, Mr. [H.] spoke of what had previously been a very
    positive relationship with his niece. He indicated that [J.] was never fearful
    of him.
He had no explanation for [J.]'s story and even went so far as to
    say that he didn't know [J.] to be a liar. Had this been the conclusion of Mr.
    [H.]s evidence, then arguably the court would have been left with a reasonable
    doubt
based on the
dicta
in the Supreme Court of Canada decision
R.
    v. W.D.
However, it was not. The Crown concluded its cross-examination of
    Mr. [H.] with a somewhat convoluted question in which, in which Mr. [H.] was
    asked that if [J.] wasnt lying and if there wasnt some innocent contact
    between them which had been misinterpreted, then [J.] must have been describing
    something that actually happened between her and Mr. [H.] Mr. [H.] quite fairly
    asked that the question be reworded because he didn't understand it. The
    exchange between him and [Crown counsel] at page 62 of the transcript from July
    25 reads as follows: [Transcript Omitted]

Mr. [H.]'s response of "I do not know" to the
    reworded question caused me considerable and immediate concern the moment it
    was uttered. I also noted the manner in which it was stated. Mr. [H.], for the
    first time during his evidence, presented as being unsure of the answer to give
    as if he knew that if he answered "yes" then he would certainly be
    inculpating himself. I also note that before Mr. [H.] gave that answer that he
    paused momentarily, which was somewhat different from his other responses to
    other questions.

Now it is clear that there can be no doubt that at the time
    that Mr. [H.] was asked the reworded question by [Crown counsel] that he
    understood it. Mr. [H.] confirmed as much in his response to a question asked
    by his lawyer, [defence counsel], in reply. On page 63, this is the question by
    [defence counsel] and the answer by Mr. [H.]:
[Transcript Omitted]

I am mindful that Mr. [H.] went on to add that what [J.] had
    told the police was not true. [Defence counsel] asked him, "Okay. And
    what's your answer?" Mr. [H.] replied, "No". This was an
    entirely different answer than Mr. [H.] had given just seconds before.
In
    my view, and notwithstanding the response given my  by Mr. [H.] to [defence
    counsels] question in reply, that horse was already out of the barn.
If Mr.
    [H.] had not done the act complained of, then there could only be one answer to
    the question posed by [Crown counsel], a question which Mr. [H.] confirmed he
    understood. That answer is, and should have been, an, an emphatic
    "no". Instead, Mr. [H.] paused and answered that he didn't know. Well,
    certainly only Mr. [H.] could know the answer to this question.
Accordingly,
    whatever doubt existed up until that point in the evidence was erased by Mr. [H.]'s
    answer to that question posed by [Crown counsel] and as a result, the court is
    left with no reasonable doubt
and accordingly a conviction will register
    in relation to the count of sexual assault contrary to section 271. The other
    charge will be stayed. [Emphasis added].

[6]

In her very helpful submissions, Ms. Nakelsky submits that the trial
    judge did not err in his use of the appellants evidence. She points out that
    during argument the trial judge showed that he was aware that there was no
    burden on the accused person to explain why this set of circumstances may have
    happened or why this witness may be lying. It is undoubtedly true that the
    trial judge was aware of this principle. Unfortunately, when he came to explain
    his reasons for disbelieving the appellant, it appears that the trial judge
    used as the decisive factor that the appellant was unable to explain why the
    complainant was lying.

[7]

Ordinarily, the appropriate remedy would be to allow the appeal and
    order a new trial. However, in this case, a fair reading of the trial judges
    reasons is that he would have had a reasonable doubt, but for the appellants
    response to Crown counsels improper question. In particular, we note his
    statement at the very end of his reasons that whatever doubt existed up until
    that point in the evidence was erased by Mr. [H.]s answer to that question
    posed by [Crown counsel] and as a result, the court is left with no reasonable
    doubt.

[8]

Accordingly, as we indicated at the conclusion of argument, the appeal
    is allowed, the conviction set aside and an acquittal entered on the charge of
    sexual interference. The stay of proceedings on the charge of sexual assault is
    lifted, and an acquittal entered on that charge as well.

M. Rosenberg J.A.

J.C. MacPherson J.A.

H.S. LaForme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Rahmani, 2013 ONCA 130

DATE: 20130304

DOCKET: C54614

MacPherson, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nejmeddin Rahmani

Appellant

Timothy E. Breen, for the appellant

Amber Pashuk, for the respondent

Heard: February 28, 2013

On appeal from the conviction entered by Justice Margaret
    F. Woolcott of the Superior Court of Justice, dated August 30, 2011.

By the Court:

[1]

The appellant appeals his conviction on the charges of importing opium
    and possession of opium.

[2]

The facts are as follows.

[3]

On July 25, 2010, a package addressed to H. Rahman was intercepted at
    the Hamilton International Airport. Canada Border Services Agency (CBSA) personnel
    found the package to be suspicious and investigated it further. It contained an
    unlocked briefcase which in turn was wrapped in a black plastic bag. The
    briefcase contained childrens clothes and shoes. CBSA agents discovered
    approximately one kilogram of opium concealed in the hard shell of the
    briefcase. The waybill listed the importer as H. Rahman and listed the
    appellants home address.

[4]

An unsuccessful attempt at delivery resulted in a courier slip being
    left at the appellants front door. On the Friday before the long weekend in
    August, the appellant called the number on the delivery slip.  This put him in
    contact with an undercover officer.  He spelt his name for the officer, gave
    him his address and made arrangements for the package to be delivered that
    afternoon. The appellant told the officer that delivery of the package on
    Tuesday would be too late because he was going to America on Monday.  When
    asked whether the package was for him, the appellant responded that he thought
    it was either for his wife or his son.

[5]

Later that day, the appellant came down from his apartment to meet
    another undercover officer in the lobby of the apartment building. The officer
    requested identification and the appellant provided his drivers license.  The
    officer asked the appellant about the discrepancy between the name on the
    license, namely N. Rahmani, and the name on the package, namely H. Rahman.  The
    appellant did not have an answer. They subsequently discussed the spelling of
    the name and the appellant stated that it should have been Rahmani and not
    Rahman. The appellant told the officer that the package had to be delivered
    that day because he and his family were travelling to the U.S. The officer gave
    a lookalike briefcase containing a small amount of opium to the appellant.

[6]

The two parted company and the building was placed under surveillance.
    More than six hours elapsed and officers observed the appellant outside the
    building on two occasions. When the officers executed a search warrant later
    that evening, two individuals were found inside: the appellants 17 year old
    son, Omid, and a 27 year old family friend. One of the officers testified that
    Omid told him that his mother and brother were in Iran. The officers discovered
    the briefcase in the walk-in pantry concealed behind a tall white shelving unit
    filled with food staples and surrounded by a variety of pots and pans.  It was
    covered with a box of demolition tools.  The briefcase continued to be sealed
    and unopened and was in the same condition as it was when first delivered to
    the appellant. Concealed nearby, the officers found $8000 in cash bundles
    principally in $20 and $10 denominations. The officers also found $4500 in cash
    in the backpack of the family friend, the appellants business card identifying
    him as the owner of an import/export business, and the birth certificate of his
    son, Hewa.

[7]

The only evidence before the court was that of the Crowns witnesses.

[8]

The appellant advances two grounds of appeal.

[9]

First, he submits that the trial judge erred in relying on the
    out-of-court statement that the appellants wife and son were in Iran.

[10]

The
    Crown concedes this error but argues that it was not determinative.

[11]

In
    reaching her verdict, the trial judge enumerated 12 circumstances that she had
    considered, a few of which related to the out-of-court statement.

[12]

That
    said, she indicated that she would have come to the same conclusion in the
    absence of that statement. We agree with her conclusion. The verdict would have
    been the same absent the error.

[13]

We
    would not give effect to this ground of appeal.

[14]

Second,
    the appellant submits that the finding of guilt was unreasonable.

[15]

To
    establish possession, the Crown was required to prove both control and
    knowledge.

[16]

Control
    of the package through acceptance of delivery having been conceded, the trial
    judge correctly noted that the only live issue was whether the appellant had
    knowledge of the contents of the package.

[17]

The
    trial judge gave thorough reasons for her decision.

[18]

There
    was no direct evidence of knowledge, however, the circumstantial evidence
    supported a finding of knowledge. This included the manner of acceptance and
    the concealment of the package. Based on the evidence before her, it was open
    to the trial judge to infer that the appellant had concealed the package and
    had the requisite knowledge.  The verdict was not unreasonable.

[19]

The
    appeal is dismissed.

Released: March 4, 2013 JCM

J.
    C. MacPherson J.A.

J.
    MacFarland J.A.

S.
    E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Ravindhraraj, 2013
    ONCA 155

DATE: 20130314

DOCKET: C55820

Goudge, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashan Ravindhraraj

Appellant

Ashan Ravindhraraj, appearing in person

Vincenzo Rondinelli, acting as duty counsel

Susan Magotiaux, for the respondent

Heard: March 11, 2013

On appeal from the conviction entered on April 24, 2012
    and the sentence imposed on July 25, 2012 by Justice Anne Marie Molloy of the Superior
    Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant pleaded guilty to two counts of mischief and was tried by
    a judge and jury on one count of arson.

[2]

In response to a question from the jury about causation, the trial judge
    instructed the jury for the first time on the included offence of attempted
    arson. In doing so, the trial judge described the
mens rea
for the
    included offence of attempted arson as including both actual intent and
    recklessness. Ultimately, the jury acquitted the appellant of arson but
    convicted him of attempted arson.

[3]

On appeal, duty counsel relied on
R. v. Sarrazin
, 2010 ONCA
    577, 259 C.C.C. (3d) 293, as establishing that the
mens rea
for
    attempted arson does not include recklessness.

[4]

In our view,
Sarrazin
establishes only that the issue of
    whether the
mens rea
for offences of attempt (other than attempted
    murder) includes recklessness is an unsettled area of the law. That said, we note
    that neither
Watt's Manual of

Criminal Jury Instructions
(Toronto: Thomson Carswell, 2005) nor
Canadian Criminal Jury Instructions
,
    4th ed. (Vancouver: The Continuing Legal Education Society of British Columbia,
    2012) refer to recklessness in the model instructions relating to attempt.

[5]

In light of this unsettled state of the law, the trial judge ought not
    to have given the instruction she did in the circumstances of this case. The
    trial judge raised the issue of attempted arson herself and did so only after
    her main charge and in response to a question from the jury. In the result,
    defence counsel had no realistic opportunity to research the elements of the
    included offence or to make submissions on whether the
mens rea
of the
    included offence includes recklessness. Equally important, defence counsel had
    no opportunity to address this theory of liability in his closing address to
    the jury. Given the appellants conviction for attempted arson, the procedure
    used requires a new trial.

[6]

In the circumstances, the appeal from the conviction for
    attempted arson is allowed, the conviction is set aside and a new trial is
    ordered.


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), (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 complainant 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, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, 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).

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. S.L., 2013
    ONCA 176

DATE: 20130325

DOCKET: C54034

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.L.

Appellant

Matthew Gourlay, for the appellant

Susan Magotiaux, for the respondent

Heard: September 18, 2012

On appeal from the conviction entered on March 26, 2011
    by Justice Maria T. Linhares de Sousa of the Superior Court of Justice, sitting
    with a jury.

Laskin
    J.A.:

A.

overview

[1]

The complainant, M.H., alleged that the appellant, S.L., took her out in
    his car and had sex with her.  She was 15 and he was 33.

[2]

The appellant was charged with sexual interference, invitation to sexual
    touching, and sexual assault.  He did not testify or call a defence.

[3]

After an eight-day jury trial, the appellant was convicted of sexual
    interference but acquitted of invitation to sexual touching and sexual
    assault.  After credit of ten months for pre-sentence custody, he was sentenced
    to three years in jail.

[4]

The appellant appeals his conviction for sexual interference and asks
    for an acquittal.  He contends that the conviction was unreasonable on the
    basis that it is inconsistent with the two acquittals.

[5]

In a jury trial on a multi-count indictment against a single accused, a
    claim of inconsistent verdicts turns on the question whether the verdicts are
    supportable on any theory of the evidence consistent with the trial judges
    proper legal instructions:  see
R. v. J.F.
, 2008 SCC 60, [2008] 3
    S.C.R. 215, at para. 23;
R. v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R.
    381, at para. 7. Here, the verdicts will be supportable if the trial judges
    instructions were proper legal instructions that could have led the jury to
    accept a theory of the evidence producing these verdicts.

[6]

The appellant submits that the verdicts are not supportable.  He argues
    that because of the complainants age, there was no meaningful difference
    between the elements of the three offences.  Thus, the jury should have either
    convicted or acquitted the appellant of all three charges.  The split verdict
    was not one a properly instructed trier of fact could reasonably have
    rendered.

[7]

The Crown submits that the verdicts are supportable because the jury was
    told to consider each count separately; and because it was told that sexual
    assault required an application of force, but that sexual interference required
    no use of force, only intentional touching.

[8]

To put these submissions in context, I will briefly review the facts
    giving rise to the charges against the appellant.

B.

backgrouNd facts

(1)

The complainant M.H.

[9]

M.H. was 15 years old in July 2010, when the offences were alleged to
    have occurred.  Her mother and the appellant were close friends.  The appellant
    had known her since she was in grade six.

[10]

M.H.
    had a difficult upbringing because of her mothers substance abuse.  She was
    made a ward of the Childrens Aid Society and placed with her aunt and uncle.
    She fought with them frequently and either ran away or was asked to leave their
    home several times.

(2)

The incident

[11]

In
    early July, M.H. had a fight with her aunt and uncle and left their house to
    stay with friends.  On July 9 at about 10:00 p.m., she went to her
    grandmothers home.  Her grandmother called M.H.s mother, who picked M.H. up
    in a taxi and took her to the appellants apartment.

[12]

A
    few hours later, M.H. went to sleep in the appellants bedroom.  She awoke between
    3:00 a.m. and 4:00 a.m.  Her mother was in the bed beside her talking to the
    appellant.  M.H. said that she was thirsty.  Her mother told her that the
    appellant would get her a drink.  M.H. went to the kitchen with the appellant
    to get a glass of water.

[13]

According
    to M.H., the appellant then suggested that the two of them go somewhere.  He
    told M.H.s mother that they were going to do a run, which M.H. understood as
    a trip to buy drugs.

[14]

M.H.
    testified that they got into the appellants car and started driving around.  The
    appellant took M.H. to an empty parking lot behind a building near his
    apartment.  He parked the car and told M.H. to get in the backseat, which she
    did.  He got in the backseat too.

[15]

The
    appellant then pulled down his pants and told M.H. to take off her pants.  She
    did so.  She removed her jogging pants and the bathing suit bottoms she was
    wearing.

[16]

M.H.
    testified that the appellant asked her to give him a blow job.  She complied.
    After the oral sex, the appellant told her to get on top of him.  She did. They
    began to have vaginal intercourse. After some time, the appellant told M.H. to
    lay down on the seat so he could continue to have vaginal intercourse with
    her.  Again, she complied.

[17]

He
    had vaginal intercourse with her for not that long.  M.H. thought that he
    ejaculated.  He did not use a condom.  She never said no or stop.  She
    agreed that the appellant did not threaten her with violence or use any kind of
    physical coercion.

[18]

After
    the intercourse, the appellant gave M.H. a wet wipe.  She cleaned off her
    vaginal area and threw the tissue out of the car.  The appellant told her not
    to tell her mother what they had done.  He gave M.H. some weed so it would
    appear that they went on a drug run.

[19]

They
    drove back to the appellants apartment, and M.H. went back to bed.  The next
    morning the appellant sat beside M.H. on the couch, touched her leg, and told
    her its our secret.  M.H. testified that the appellant threatened he would
    cut her up if she told anyone.  She said she would not tell.  He gave her some
    money and jewellery and drove her and her mother to a bus stop.

(3)

The forensic evidence

(i)

Examination of the complainant

[20]

The
    day after the incident M.H. confided in a friend.  The friend told her mother,
    and her mother told M.H.s aunt and uncle.  M.H.s aunt then contacted the
    police.  M.H. gave a statement and was taken for an examination.

[21]

The
    examination showed no injuries, and vaginal swabs did not detect any
    spermatozoa.  The expert forensic analyst testified that it was less likely
    sperm would be detectable on an internal swab taken two days after sexual
    activity.

(ii)

The discarded tissue

[22]

The
    police took M.H. to locate the scene of the incident.  She was able to identify
    the parking lot where the appellant had taken her.  At the parking lot, she
    spotted what she believed to be the tissue she had discarded after the
    incident.  The tissue was analysed, and no semen was detected on it.

(iii)

DNA evidence

[23]

Two
    days after the incident, the police seized the jogging pants M.H. had worn that
    night.  They were tested for sperm.  The initial screening tests were positive.

[24]

Two
    sample areas  the front-centre-right of the crotch panel and the back-right of
    the crotch panel  were submitted for further testing.  On a second screening,
    these two samples also tested positive.  Although no spermatozoa could be seen
    under a microscope, the analyst testified that in her opinion the fluid on the
    pants was most likely semen.

[25]

The
    appellant matched the major DNA profile found in both the front and back panel
    of the inside crotch of the complainants jogging pants.  The probability that
    a random person had contributed the DNA that matched the appellant was 1 in 7.4
    billion (back panel) and 1 in 21 trillion (front panel).

(4)

The defence

[26]

The
    defence challenged the credibility and reliability of M.H.s evidence, and
    argued that the forensic evidence did not support the charges.

C.

analysis

[27]

The
    appellants simple, yet powerful proposition is that he was both convicted and
    acquitted by the same jury for a single act committed against the same
    person.  His proposition seemingly has merit:

·

The three offences refer to a single instance of sexual activity
    with a minor;

·

The allegations all refer to a single episode lasting only a few
    minutes;

·

The allegations against the appellant depended on the credibility
    of a single witness: the complainant; and

·

The evidence led by the Crown on the three counts was identical.

[28]

Moreover,
    the elements of the three offences were virtually identical.  The trial judges
    instructions on what the jury had to find to convict on each offence may be
    summarized as follows.

·

Sexual interference (s. 151 of the
Criminal Code
):

That M.H. was under 16;

That the appellant touched M.H.; and

That the touching was for a sexual
    purpose.

·

Invitation to sexual touching (s. 152 of the
Criminal Code
):

That M.H. was under 16;

That the appellant invited M.H. to touch his body; and

That the touching the appellant invited was for a sexual
    purpose.

·

Sexual assault (s. 271 of the
Criminal Code
):

That the appellant intentionally applied forced to M.H.; and

That the application of force, even an intentional touching,
    occurred in circumstances of a sexual nature.

[29]

M.H.s
    age was admitted; the appellant did not claim that he was reasonably mistaken
    about her age; and as M.H. was under 16, she could not in law consent to the
    sexual activity.

[30]

Thus,
    the appellant contends that he should either have been convicted or acquitted
    of all three offences  convicted if the jury was satisfied beyond a reasonable
    doubt that the incident M.H. recounted took place and acquitted if the jury had
    a reasonable doubt about whether the incident took place.  The verdicts the
    jury did render, the appellant says, cannot be reconciled.  The conviction for
    sexual interference is inconsistent and therefore unreasonable.

[31]

As
    attractive as the appellants contention appears to be, I cannot accept it.  As
    I said in the overview, the test from
J.F.
and
Pittiman
is
    whether the three verdicts are supportable on any theory of the evidence
    consistent with proper instructions of the trial judge.  In my opinion, the
    verdicts are supportable.

[32]

The
    starting point is the trial judges instructions on how the jury was to
    approach its task.  She did not tell the jury to take an all-or-nothing
    approach.  Instead, with the approval of both counsel, she instructed the jury
    to consider each charge separately.  She said:

Your verdicts on each charge may, but do not have to be the
    same.  They may be the same, but they do not have to be the same, or they may
    be different.  In each case, the verdict will depend on your assessment of the
    evidence and application of the legal principles that relate to that charge.

She then went on to outline the legal components of
    each charge separately and independently.

(1)

Sexual interference and invitation to sexual touching

[33]

In
    the light of these instructions, the conviction on the charge of sexual
    interference and the acquittal on the charge of invitation to sexual touching
    are reconcilable.  The sexual interference charge against the appellant was
    particularized as touching M.H. with his penis.  The invitation to sexual
    touching charge was particularized as inviting her to touch his penis  in
    other words, inviting her to perform fellatio.

[34]

By
    convicting the appellant of sexual interference the jury accepted that sexual
    activity had occurred.  By acquitting the appellant of invitation to sexual
    touching the jury showed that it did not unreservedly accept all of M.H.s
    testimony.  Although it accepted that the sexual encounter took place, it
    rejected or at least had a reasonable doubt that the appellant directed M.H. to
    perform oral sex on him.  Of course, as the trial judge instructed the jury, it
    was entitled to believe some, none, or all of M.H.s evidence.  Thus, the
    conviction for sexual interference and the acquittal for invitation to sexual
    touching are supportable.  That leaves the conviction for sexual interference
    and the acquittal for sexual assault to be considered.

(2)

Sexual interference and sexual assault

[35]

In
    principle, the offence of sexual interference requires an intentional touching
    while the offence of sexual assault requires the intentional application of
    force: see s. 151 and s. 271 of the
Criminal Code
, respectively.
    However, force includes any touching, no matter the degree of strength or
    power applied:
R. v. Cuerrier
, [1998] 2 S.C.R. 371, at para. 10. See
    also
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, at paras. 23-25.  Thus, if
    the appellant intentionally touched M.H. in circumstances of a sexual nature,
    the intentional application of force would be implied.

[36]

That
    is not, however, how the trial judge instructed the jury.  Instead, as I will
    elaborate on, the jury was told that sexual interference required an
    intentional touching but no use of force.  In contrast, the jury was told
    numerous times that sexual assault required an application of force.  The
    different instructions on whether touching or the application of force was
    required reconciles the different verdicts and shows that they are
    supportable.

[37]

As
    M.H.s age was admitted, on the charge of sexual interference the jury was
    instructed to consider whether the appellant touched M.H. and if so, whether he
    touched her for a sexual purpose.  On the element of touching, the trial judge
    told the jury: Force is not required but an accidental touching is not enough.
    The full passage where this instruction was given is as follows:

Touching involves intentional physical contact with any part of
    [M.H.]s body.  The contact may be direct, for example, with a hand or other
    part of the body such as a penis.  Force is not required but an accidental
    touching is not enough.

[38]

On
    the charge of sexual assault, the trial judge discussed the element of force,
    which she had discounted in her instructions on the sexual interference
    charge.  She told the jury to consider two questions. First, did the appellant
    intentionally apply force to M.H.? Second, was the force applied in
    circumstances of a sexual nature?

[39]

On
    the first question, the trial judge elaborated on the nature of the force
    required:

The force applied may be violent, or even gentle.  To be an
    assault, however, [S.L.] must apply the force intentionally.  An accidental
    touching is not an intentional application of force.

The trial judge told the jury that in assessing
    whether force was applied intentionally it should consider actions or words,
    including any threats accompanying the application of force.

[40]

On
    the second question on the charge of sexual assault  whether force was applied
    in circumstances of a sexual nature  the trial judge told the jury that the
    application of force included intentional touching.

[41]

The
    trial judges instructions on the charges of sexual interference and sexual
    assault  indeed on all three charges  were proper; they were legally correct.
     For each charge she set out the components of the offence, generally following
    the relevant sections of Justice Watts
Ontario Specimen Jury Instructions
    (Criminal)
(Toronto: Thomson Carswell, 2005).  Further, both trial counsel
    had an opportunity to review a draft of the jury charge and discuss any concerns
    with the trial judge.  Neither counsel took issue with the relevant aspects of the
    trial judges final instructions.  Moreover, even in this court, the appellant
    did not argue that the trial judges instructions were incorrect in law.

[42]

However,
    three things about the instructions on sexual interference and sexual assault help
    explain the different verdicts.  First, as I said earlier, the trial judge instructed
    the jury to consider each charge separately.  They were to apply their minds to
    whether guilt was proven beyond a reasonable doubt on each of the offences
    independently.

[43]

Second,
    though 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 formers touch
    requirement and the latters force requirement.  More complete instructions
    could have explained the relationship between touch and force  that force
    includes any touching: see
Cuerrier
.  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.

[44]

Third,
    on her instructions on sexual assault the trial judge told the jury it could
    consider threats accompanying the application of force.  In contrast, she did
    not tell the jury to consider alleged threats on the other counts, and M.H. had
    agreed that the appellant did not threaten her during the sexual incident.

[45]

The
    reasonable inference from these instructions is that the jury thought the
    application of force was required to convict on sexual assault but not required
    on sexual interference.  The reasonableness of this inference finds support in
    counsels submissions during the sentencing proceedings.  The Crown observed
    that the jury must have found the appellant did not use force in the sexual
    touching.  Defence counsel agreed.  He said: I agree with my friend when she
    says that obviously the issue of force was rejected.

[46]

I
    therefore conclude that the different verdicts are supportable on the
    instructions of the trial judge and that those instructions, though not as
    complete as they might have been, were legally correct.  Accordingly, the
    appellant has failed to show inconsistency.

(3)

The conviction for sexual interference was reasonable

[47]

Finally,
    I agree with the Crown that the conviction for sexual interference is a fair
    result, not an inexplicable one.  M.H.s evidence and the appellants DNA found
    in the inside crotch of her pants reasonably support the verdict.

D.

conclusion

[48]

The
    verdicts are not inconsistent.  I would dismiss the appeal.

Released: Mar. 25, 2013                               John
    Laskin J.A.

JL                                                                     I
    agree R.G. Juriansz J.A.

I
    agree M. Tulloch J.A.