



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C.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    shall not be published in any document or broadcast or transmitted in any way.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. Bempong, 2022 ONCA 298

DATE: 20220413

DOCKET: C65430

Tulloch, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pius Bempong

Appellant

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 appellants car, and raises a single question:
    Are the jurys 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 appellants 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 appellants 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
    courts 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 appellants conviction would be undermined if
    the Crown were
precluded
    from responding

to the appellants appeal because
    it chose not to appeal his acquittal.

[21]

If
    the court concludes that the appellants 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), 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 appellants 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 Crowns
    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 jurys 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 complainants] 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
    jurys 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 jurys 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 theres a sexual
    interference, but for them not to find that theres 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 jurys question by clarifying which counts
    referred to which alleged offences and the parties involved in them.

[41]

I
    agree with the Crowns submission that the trial judges 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 jurys 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 appellants 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.


