



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)       REPEALED: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    information that could identify the victim shall not be published in any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. A.S., 2018 ONCA 249

DATE: 20180314

DOCKET: C62625

Rouleau, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.S.

Appellant

Mark J. Sandler and Amanda Ross, for the appellant

Jessica Smith Joy, for the respondent

Heard: March 8, 2018

On appeal from the conviction entered on December 4, 2015
    by Justice Robert Del Frate of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

Overview

[1]

The appellant was convicted on one count each of
    sexual interference, sexual exploitation, and sexual assault following a jury
    trial. The offences arose out of two incidents involving the appellants
    stepdaughter. The first was alleged to have occurred when the complainant was
    13 years old; the second approximately 18 months later. The complainant was 18
    years old at the time of trial.

[2]

In the first incident, the complainant alleged
    that, while laying on her bed, the appellant put his hand underneath her pajama
    bottom and touched, but did not penetrate, her vagina. Nothing more was said or
    done. The complainant testified that she could not tell if the appellant was
    awake when this touching happened. The appellant testified and denied that the
    incident occurred, but acknowledged that he had once fallen asleep on the
    complainants bed. The defence motion for a directed verdict in relation to
    this incident was unsuccessful.

[3]

In the second incident, the complainant alleged
    that the appellant touched her torso while he was in her bed, told her that he
    had a crush on her, explained sex to her and informed her of his sexual
    prowess. He offered to have sex with her, but told her that he would respect
    her if she said no. The complainant declined his offer and ran from her
    bedroom. The appellant testified that he was in the complainants bedroom on the
    night in question to confront her about hard core pornography that he found on
    her computer earlier that day, and touched her only to see if she was awake.

[4]

The sole issue on appeal is the judges charge
    to the jury. The appellant submits that the trial judge erred 1) in failing to
    instruct the jury that evidence concerning one incident could not be used to
    support a finding of guilt in the other incident; 2) in instructing the jury on
    the requirements of
R. v. W. (D.)
, [1991] 1 S.C.R. 742; and 3) in failing to address important
    inconsistencies in the complainants testimony.

[5]

In our view, the trial judge erred in failing to
    instruct the jury that evidence concerning one incident could not be used to
    support a finding of guilt on a charge relating to the other incident. The jury
    charge was both deficient and confusing in respect of this issue, and as a
    result the conviction cannot stand.

Analysis

The jury charge

[6]

The indictment included three counts and the two
    incidents were relevant to each count. The Crown did not make a similar fact
    application in respect of the two incidents. Thus, the Crown had to prove each
    incident separately.

[7]

The trial judge understood the importance of
    separating the incidents in his instructions and discussed the matter with the
    parties at length prior to completing his charge. However, his instructions
    dealt with the need to treat the counts separately rather than treat the
    incidents separately. The trial judge stated:

The indictment on which you are trying S.A.
    alleges that he committed three specific offences. Each allegation is a
    separate charge. You must make a separate decision and give a separate verdict
    for each charge. The verdicts may but do not have to be the same on each
    charge. You must make your decision on each charge only on the basis of the
    evidence that relates to that charge in the legal principles that I tell you
    apply to make your decisions on that charge. You must not use evidence that
    relates only to one charge in making your decision on any other charge.

[8]

Although it is correct to say that each count in
    the indictment had to be decided separately based on the evidence related to
    that count, each count in the indictment included the two incidents, and these
    were not to be treated as similar fact incidents. The jury should have been instructed
    that each incident had to be proven separately, and that evidence concerning
    one incident could not be used to support a finding relating to the other
    incident.

[9]

We cannot accept the Crowns submission that the
    looseness of the language  the use of the term charge rather than incident
     is of no effect. Given the circumstances of this case  unrelated incidents included
    in the same counts  the language of the instruction is confusing. In these
    circumstances charge must mean count, because the trial judge instructed
    the jury that three separate decisions were required, and there were only two
    incidents.

[10]

The Crown submits that, read as a whole, the
    trial judges instructions would have been understood by the jury. We do not
    agree. Although the trial judge related the incidents to the charges later in
    his instructions, in our view, the failure to clearly separate the incidents
    for purposes of the required analysis gave rise to the risk that the jury would
    engage in propensity reasoning  that it would conclude that the appellant was surely
    guilty of one offence because of the unlikelihood of his having also been
    charged with another. In the circumstances of this case, where each charge
    concerned two incidents and the Crown conceded that one incident could not be
    used as similar fact evidence in relation to the other, the jury had to be
    informed not to use the evidence concerning one incident to support a finding relating
    to the other incident.

[11]

The failure of the appellants trial counsel to
    object to the charge is a relevant consideration, but it is not determinative. It
    was incumbent on the trial judge to properly instruct the jury on the need to
    separate the two incidents, regardless of counsels failure to object:
R. v. Brown
, 2007 ONCA 71, 221 O.A.C.
    17, at para. 16.

[12]

In light of our conclusion on this ground, it is
    unnecessary to address the other grounds of appeal.

Conclusion

[13]

The appeal from conviction is allowed, and a new
    trial is ordered.

[14]

The Crown concedes that the complainant did not
    meet the definition of a young person under s. 153(2) of the
Criminal Code
and that the charge of
    sexual exploitation should not have been left with the jury. Accordingly, an
    acquittal is entered on this count.

Paul Rouleau
    J.A.

C.W.
    Hourigan J.A.

Grant
    Huscroft J.A.


