



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    that could identify the victim or a witness shall not be published in any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 complainants 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(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),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    shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. K.D.M., 2017 ONCA 510

DATE: 20170619

DOCKET: C61035

Feldman, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.D.M.

Appellant

K.D.M., appearing in person

Ingrid Grant, duty counsel

Alison Wheeler, for the respondent

Heard: May 11, 2017

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

Benotto J.A.:

A.

Overview

[1]

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

[2]

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

[3]

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

B.

Background Facts

[4]

The appellant is the complainants father. The
    appellant was not involved in the complainants life until she was 13 or 14.

[5]

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

[6]

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

[7]

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

C.

Issues

[8]

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

D.

Positions of the Parties

[9]

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

[10]

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

[11]

The Crown submits it is possible to reconcile the jurys
    finding of not guilty of sexual assault and guilty of sexual interference given
    the way the jury was instructed.

[12]

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

E.

Analysis

(1)

Conviction

[13]

I have concluded that the jury verdicts are not
    inconsistent.

[14]

The legal test applicable when a reviewing court is faced with an
    allegation of inconsistent jury verdicts is whether the verdicts are
    supportable on any theory of the evidence consistent with the legal
    instructions given by the trial judge:
R. v. Pittiman
, 2006 SCC 9,
    [2006] 1 S.C.R. 381, at para. 7. Where, as here, the accused was tried on a
    multi-count indictment, the verdicts will be supportable if the trial judges
    instructions were proper legal instructions that could have led the jury to
    accept a theory of the evidence producing these verdicts:
R. v. L(S)
, 2013 ONCA 176, 300 C.C.C. (3d) 100, at para. 5;
R.
    v. Tyler
, 2015 ONCA 599, [2015] O.J.
    No. 4653, at para. 8.

[15]

The jury instructions with respect to sexual assault,
    juxtaposed with the instructions on sexual interference and invitation to
    sexual touching would have led the jury to conclude that, to convict the
    appellant of sexual assault, it was the
appellant

who applied force of a sexual nature against the complainant.
    With respect to sexual interference and sexual touching, force by the appellant
    was not required.  To demonstrate this, I first review the elements of each
    offence and then consider the trial judges corresponding instructions to the
    jury.

(a)

Sexual assault and sexual interference

[16]

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

A person commits an assault when

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

[17]

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

[18]

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

[19]

The trial judges instruction on sexual assault
    emphasized the force requirement throughout:

·

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

1.      that
[the appellant] intentionally applied force
to [the
    complainant]; and

2.      that the
force [the appellant] applied
took place in
    circumstances of a sexual nature.

·

Did [
the appellant
] intentionally
apply force

to
[the complainant]?

·

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

·

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

·

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

[20]

Contrast this to the instructions with respect
    to sexual interference.

[21]

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

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

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

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

[22]

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

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

[23]

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

·

Touching involves intentional physical contact.

·

Force is not required.

[24]

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

[25]

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

[26]

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

[27]

This court has also considered the issue. In
L(S)
,

referenced above, the
    appellant was similarly convicted of sexual interference but acquitted of
    sexual assault. The appellant submitted the verdicts were inconsistent.

Having reviewed similar jury instructions,
    Laskin J.A. said, at para 43:

[T]hough proper, the instructions were not as
    complete as they could have been. The jury was given correct instructions on
    sexual interference juxtaposed with correct instructions on sexual assault.
    Placing the components of these two offences side by side created a contrast between
    the former
s

touch

    requirement and the latter
s

force
 requirement. More complete instructions could have explained the
    relationship between touch and force  that force includes any touching. But
    the trial judge did not clearly tell the jury that the force component of
    sexual assault was satisfied if the appellant intentionally touched the
    complainant. [Citations omitted.]

[28]

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

[29]

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

(b)

Sexual
assault
and invitation to sexual touching

[30]

Sectio
n
152 of the
Code
prescribes the elements of invitation to sexual touching:

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

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

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

[31]

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

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

[32]

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

[33]

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

[34]

The jurys impression on this issue is demonstrated by
    the question posed during deliberations:

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

[35]

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

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

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

[36]

A more accurate response would have been to explain the
    relationship between force and touching and also to explain that the touching
    by the complainant in response to the appellants invitation to do so constituted
    sexual assault.

[37]

This court dealt with a similar situation in
Tyler
,

referenced above, where
    the appellant had been convicted of invitation to sexual touching and acquitted
    of sexual assault. In concluding the verdicts were reconcilable, Pardu J.A.
    said, at paras. 10 and 12:

It is more likely that the jury did not
    understand that participation by the appellant in physical contact of a sexual
    nature between the complainant and the appellant amounted to an assault, even
    if it resulted from the complainant complying with the appellants invitation.
    They may not have understood that the requirement that the Crown prove that he
    intentionally touched the complainant with his penis included this kind of
    physical contact.

Had the trial judge expressly told the jury
    that compliance with the invitation to sexual touching amounted to a sexual
    assault by the appellant, this would have likely enlarged the instances of
    conduct potentially forming the basis for conviction on the sexual assault
    count.

[38]

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

[39]

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

[40]

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

(2)

Sentence

[41]

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

[42]

On sentencing, a judge is bound by the express and implied factual
    implications of the jurys verdict:
R. v. Brown
, [1991] 2 S.C.R. 518,
    at p. 523. This requirement has been codified in s. 724(2) of the
Code
.
    Where the factual basis of a jury verdict is unclear, however, the sentencing
    judge is entitled to make his or her own determination of the facts, so long as
    that view is consistent with the jurys verdict:
Brown
; and
R. v.
    Roncaioli
, 2011 ONCA 378, 278 C.C.C. 117. A sentencing judge must not
    accept as fact any evidence consistent only with a verdict rejected by the
    jury:
R. v. Ferguson
, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17; and
R. v. Nelson
, 2014 ONCA 853, 318 C.C.C. (3d) 476, at paras. 55-59.

[43]

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

F.

Disposition

[44]

I would dismiss the appellants conviction appeal. I would grant leave
    to appeal the sentence but dismiss the sentence appeal.

Released: KF JUN 19 2017

M.L. Benotto J.A.

I agree. K. Feldman
    J.A.

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





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


