



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    that could identify the complainant or a witness shall not be published in any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. B.H.,
    2015 ONCA 642

DATE: 20150923

DOCKET: C59187

Cronk, Epstein and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.H.

Appellant

Robert Sheppard, for the appellant

Kevin Rawluk, for the respondent

Heard: September 14, 2015

On appeal from the conviction entered on January 24, 2014
    by Justice Ian F. Leach of the Superior Court of Justice, sitting with a jury,
    and the sentence imposed by Justice Ian F. Leach on July 25, 2014.

Epstein J.A.:

[1]

The appellant was charged with two counts of gross indecency arising out
    of complaints made by his nephew, A.G.  The events forming the basis of the charges
    took place in 1973, when the appellant was eighteen and A.G. was nine or ten
    years of age.

[2]

A.G. testified that, on two occasions, the appellant made him perform
    oral sex in return for permission to use the pool table in the appellants
    home. The first charge related to a brief encounter that took place in the
    backroom of the appellants home, where A.G. said the pool table was then
    located.  According to A.G., on that occasion the appellant did not ejaculate
    and A.G. played pool afterwards. The second charge related to an incident in
    the appellants bedroom.  This time the appellant ejaculated. A.G. thought the
    appellant had peed in his mouth and ran home without playing pool.

[3]

The appellant testified, denying that he sexually abused A.G.  He took
    the position that A.G. fabricated the abuse because the appellants mother had
    died, leaving valuable property to the appellant.

[4]

A.G. reported the incidents to the police in 2012.

[5]

Following a trial with a judge and jury, in which credibility was the
    key issue, the appellant was acquitted on the first count and convicted on the second.
    The trial judge sentenced the appellant to an 18-month conditional sentence on
    terms proposed by defence counsel.  The terms included strict house arrest.

THE ISSUES

[6]

The appellant appeals his conviction and sentence. He advances two
    arguments with respect to his conviction appeal.

[7]

First, the appellant submits that the trial judge erred by failing to
    instruct the jury that A.G.s entire testimony could be taken into account in
    assessing his credibility in relation to each count.  Because of this error,
    the appellant says, the verdicts the jury rendered are inconsistent.

[8]

The second ground of appeal arises out of the appellants theory about
    why A.G. fabricated the complaints against him. The appellant submits that the
    trial judge erred by failing to instruct the jury that, even if it rejected the
    appellants theory, it had to consider whether he may have been honestly
    mistaken about A.G.s motive to fabricate.   And, if the jury concluded that
    the appellant was, in fact, honestly mistaken, then it should not use the
    appellants evidence on this issue as adversely affecting its assessment of his
    credibility.

[9]

On sentence, the appellant seeks to vary the terms of his conditional
    sentence.

CONVICTION APPEAL

1.

Are the verdicts reconcilable?

[10]

The
    appellant argues that the incidents alleged in both counts were virtually
    identical. There was no corroboration of either incident  the jurys verdict
    inevitably rested on its assessment of A.G.s credibility.  The jurys verdict
    of not guilty on count 1 can only be interpreted as a finding that A.G.s
    evidence was not credible, making this verdict irreconcilable with the verdict
    of guilty on count 2, which required a finding that A.G.s evidence was
    credible.

[11]

In
    support of this argument, the appellant submits that the trial judge erred by
    failing to instruct the jury that  its credibility findings in relation to A.G.
    on one count could be considered in its determination whether the Crown had
    proven its case in relation to the other count.  This error, the appellant
    argues, could have led to the inconsistency in the verdicts.

[12]

I
    disagree with both parts of the appellants argument relating to this issue.

Did the trial judge err in
    instructing the jury?

[13]

First,
    I find no fault with the trial judges instructions.

[14]

The
    trial judge correctly instructed the jury to consider each charge separately
    and notably told them that their verdicts on the two counts did not have to be
    the same.

[15]

Nothing
    in the instructions suggested that the jury should compartmentalize its
    credibility findings.  Significantly, nothing the trial judge said led the jury
    to believe that it could not apply its general credibility findings about A.G.
    to both counts.

[16]

In
    fact, in the following passage in his charge, the trial judge focused on the
    need for an overall assessment of the credibility of the witnesses:

I emphasize you do not decide whether something happened simply
    by comparing one version of events with another and choosing one of them. You
    have to consider all of the evidence and decide whether youve been satisfied
    beyond a reasonable doubt that the events that form the basis of the crimes
    charged in fact took place.

[17]

Moreover,
    the jury was repeatedly instructed to use its common sense in its determination
    of the verdicts.  As a matter of common sense, an assessment of the overall
    credibility of a witnesss evidence is inevitably influenced by the totality of
    the evidence:
R. v. Rojas
, 2008 SCC 56, [2008] 3 S.C.R. 111, at para.
    25.

[18]

Finally,
    I note that the trial judge provided trial counsel with a draft of the jury
    charge and no objection was made before or after it was delivered.

Were the verdicts inconsistent?

[19]

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).

[20]

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.]

[21]

In
    my view, there is no logical inconsistency between the acquittal on the first
    count and the conviction on the second count.

[22]

In
    a case in which the accused gives evidence, an acquittal does not necessarily
    mean the complainant was not believed. The jury may accept or reject some,
    none, or all of a witness's evidence. The appellant's argument is premised on
    the assumption that if the jury rejects some of the complainant's evidence, it
    must reject it all. This is clearly not the law.

[23]

As
    the Supreme Court noted in
Pittiman
, at para. 8, if there are multiple
    counts against a single accused, "different verdicts may be reconcilable
    on the basis that the offences are temporally distinct, or are qualitatively
    different, or dependent on the credibility of different complainants or
    witnesses." That is what we have here.  While the two charges stem from the
    appellants response to A.G.s requests to play pool, that is their only link. 
    Otherwise, they relate to two distinct incidents, at different times, in
    different parts of the appellants house, and with different impacts on A.G.

[24]

In
    my view, it cannot be said that the acquittal on the first count must be
    interpreted as a rejection of A.G.s credibility, thereby disentitling the jury
    from convicting the appellant on the second count. Based on A.G.s evidence,
    the events involved in count 1 were related to a location in the house where
    the pool table was kept. Given the contradictory evidence about whether the
    pool table was located where A.G. claimed it was, the jury could have had a
    reasonable doubt about the incident involved in count 1.  By contrast, other
    than the divide between the versions of events described by A.G. and the
    appellant, there was no controverted evidence with respect to the incident
    underlying count 2.  Moreover, it was open to the jury to regard A.G.s
    evidence that on the second occasion the appellant ejaculated as something that
    would have a lasting impact on A.G., making that aspect of his testimony more
    reliable.

[25]

There
    is no reason to believe that the verdicts were the product of any unjustifiable
    compromise. The conviction on the second count was reasonable and amply
    supported by the evidence.

[26]

I
    would therefore not give effect to this ground of appeal.

2.

Were the trial judges instructions incomplete with respect to the
    appellants assertion that A.G.s false allegations were the product of his
    dissatisfaction over the inheritance?

[27]

The
    appellant testified that he believed A.G. made these allegations against him
    because of the division of the appellants mothers estate.  The appellant
    submits that the trial judge failed to instruct the jurors that, even if they
    found that the appellants belief lacked a factual basis, they could conclude
    that the appellant was honestly mistaken about the real motivation behind
    A.G.s allegations.  Thus, a rejection of the appellants theory would not
    necessarily affect the jurys assessment of his credibility.

[28]

The
    difficulty with this argument is that the jury was, in fact, instructed in
    almost the precise language the appellant now suggests. The trial judge
    explicitly told the jury to consider whether any inconsistencies in a witnesss
    evidence were attributable to honest mistakes or deliberate lies.  He
    instructed the jury:

Did [the inconsistencies] reflect honest mistakes, or
    deliberate lies in your view? Were there any sensible explanations offered for
    the inconsistencies, and on the whole did such inconsistencies really make the
    main points of that witnesss testimony more or less believable and reliable?

[29]

The
    appellants argument must fail.

SENTENCE APPEAL

1.

Should the house arrest terms of the conditional sentence order be
    varied?

[30]

The
    appellant submits that while the conditional sentence imposed accords with the position
    taken by defence counsel at trial, the terms of the sentence are unduly
    restrictive.  The order does not allow the appellant to leave his home except
    for medical purposes.  He cannot attend to personal necessities like purchasing
    groceries, going to the bank or getting a haircut.  In fact, the order does not
    allow him to be outside of his actual residence.  He cannot attend to property maintenance
    demands, such as mowing the lawn or shovelling snow.  This places an undue
    burden on the appellants wife, particularly since the parties live on a large
    rural property.

[31]

The
    appellant therefore seeks a variation of the terms of the conditional sentence
    order to allow him to be

·

out of his house for a scheduled four hours per week to attend to
    his personal affairs;

·

outside his house but within the boundaries of his property, so
    as to be able to take care of home and property maintenance tasks; and

·

out of his house for purposes and during time periods allowed in
    writing by his sentence supervisor (for instance, to attend at the bank with
    his wife to sign financial documents).

[32]

In
    oral argument, the Crown quite fairly conceded that the absence of any
    condition allowing the appellant to leave his residence at all, even with the
    prior written permission of his supervisor, is unreasonable.  In my view, the circumstances
    of this case, together with the Crowns concession, support the conclusion that
    a conditional sentence this restrictive is clearly unreasonable, a conclusion
    that gives this court jurisdiction to vary the sentence: see
R. v.
    Shropshire
, [1995] 4 S.C.R. 227, at para. 48.

[33]

I
    would therefore vary the terms of the conditional sentence to allow the appellant,
    with prior written consent of his supervisor, to leave his residence for up to four
    hours per week to attend to personal affairs.

[34]

I
    see no basis for appellate intervention in relation to the other terms of the
    conditional sentence that the appellant seeks to vary.

DISPOSITION

[35]

I
    would therefore dismiss the conviction appeal.  I would grant leave to appeal
    sentence, and allow the sentence appeal in part by varying the terms of the
    conditional sentence as indicated above.

Released: September 23, 2015 (EAC)

Gloria
    Epstein J.A.

I
    agree E.A. Cronk J.A.

I
    agree David Brown J.A.


