



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    that could identify the complainant or a witness shall not be published in any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. Tyler, 2015 ONCA 599

DATE: 20150908

DOCKET: C57981

Laskin, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Edward Tyler

Appellant

J. Scott Cowan, for the appellant

Amy Rose, for the respondent

Heard: August 25, 2015

On appeal from the convictions entered on April 10, 2013,
    and the sentence imposed on September 20, 2013 by Justice Anne Mullins of the Superior
    Court of Justice, sitting with a jury.

Pardu J.A.:

[1]

This is an appeal from convictions on two counts of invitation to sexual
    touching of a child. The jury acquitted the appellant of sexual assault. The
    appellant argues that on the facts of this case these verdicts are necessarily
    inconsistent, and submits that the convictions on the charges of invitation to
    sexual touching must be set aside.

[2]

The complainant testified that when she was 13 years old the appellant
    began making her masturbate him and perform oral sex on him, that he tried to digitally
    penetrate her, and forced himself on top of her. The complainant said that the
    appellant would tell her to put her hand or her mouth on his penis, or kiss it.
    She said the sexual contact occurred 38 or 39 times. The appellant denied
    participating in any sexual communication or contact.

[3]

The trial judge correctly instructed the jury as to the elements of the
    offences. She instructed the jury that each of the following had to be
    established beyond a reasonable doubt:

Count 1: Invitation to Sexual
    Touching

1

The appellant invited the complainant to touch his penis with her mouth.

2

This touching was for a sexual purpose.

Count 2: Initiation to Sexual
    Touching

1

The appellant invited the complainant to touch his penis with her hand

2

This touching was for a sexual purpose.

Count 3: Sexual Assault

1

The appellant intentionally touched the complainant with his fingers or
    penis

2

That touching took place in circumstances of a sexual nature.

[4]

For the purpose of sentencing, the trial judge interpreted the jurys
    verdict as a finding that the invitations to touching for a sexual purpose were
    made by the appellant, but that actual physical contact did not occur. Consent
    was no defence in this case because of the complainants age.

[5]

If the complainant did perform oral sex or masturbate the appellant, it
    is common ground on appeal that his participation in these events would have
    amounted to a sexual assault by him.

[6]

The appellant argues that there was no suggestion on the evidence that
    the complainant did not comply with the invitations to sexual touching uttered
    by the appellant. Therefore, the appellant submits, the acquittal on the sexual
    assault count cannot be reconciled with the convictions on the invitation to
    sexual touching counts.

The Legal Test

[7]

The standard of review applied to jury verdicts is whether the verdict
    could reasonably have been rendered by a properly instructed jury acting
    judicially: [I]n deciding whether the verdict is one which a properly
    instructed jury could reasonably have rendered, the reviewing court must ask
    not only whether there is evidence in the record to support the verdict, but
    also whether the jurys conclusion conflicts with the bulk of judicial
    experience (
R. v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180, at para.
    28).

[8]

The test to be applied by a reviewing court to determine whether jury
    verdicts are inconsistent 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). On a multi-count indictment against a single accused, 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. S.L.
, 2013 ONCA 176, 300 C.C.C. (3d) 100, at para.
    5). As indicated in
Pittiman
, at para. 6, the authority to set aside a
    verdict on the ground of inconsistency is based on the jurisdiction accorded by
    s. 686(1)(a)(i) of the
Criminal Code
to set aside a verdict on the
    ground that it is unreasonable or cannot be supported by the evidence. The
    court noted, at paras. 6-7:

Hence, before an appellate court may interfere
    with a verdict on the ground that it is inconsistent, the court must find that
    the verdict is
unreasonable
. The appellant bears
    the onus to show that no reasonable jury whose members had applied their minds
    to the evidence could have arrived at that conclusion:
R. v.
    McLaughlin
(1974), 15 C.C.C. (2d) 562 (Ont. C.A.).

The onus of establishing that a verdict is
    unreasonable on the basis of inconsistency with other verdicts is a difficult
    one to meet because the jury, as the sole judge of the facts, has a very wide
    latitude in its assessment of the evidence. [Emphasis in original.]

Analysis

[9]

There is no necessary logical inconsistency between the conviction on
    the invitation to sexual touching counts and the acquittal on the sexual
    assault count. The jury could have accepted some, none or all of the
    complainants evidence. If the jury concluded that the invitations had been
    extended for a sexual purpose but that no contact actually occurred, these
    verdicts would have resulted. These verdicts can be reconciled on a rational
    and logical basis, however, looking at the record through the lens of judicial
    experience, it seems unlikely that the jury would have taken that view of the
    evidence.

[10]

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. This
    misunderstanding, coupled with a doubt on whether the appellant digitally
    penetrated the complainant as she alleged, could have resulted in the acquittal
    on the sexual assault charge.

[11]

The
    trial judge accurately summarized the evidence, and her instructions on the law
    were correct, so far as they went.

[12]

Trial
    counsel did not object to any aspect of the jury charge now challenged on
    appeal. 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. If the trial judge erred
    in failing to do so, this error enured to the benefit of the appellant. It does
    nothing to undermine the convictions for invitation to sexual touching. These
    convictions were reasonable and were amply supported by the evidence.

[13]

There
    is no reason to believe that the verdicts were the product of any unjustifiable
    compromise.

[14]

Accordingly,
    for these reasons, the appeal is dismissed.

Released: September 8, 2015                                          G.
    Pardu. J.A

(JL)                                                             I
    agree John Laskin J.A.

I
    agree C.W. Hourigan J.A.


