



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. D.C.M., 2019 ONCA 562

DATE: 20190703

DOCKET: C63651

Doherty, MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.C.M.

Appellant

Nicholas A. Xynnis, for the appellant

Erica Whitford, for the respondent

Heard: July 2, 2019

On appeal from the convictions entered on November 15,
    2016 by Justice M. Garson of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

Following a trial before Garson J. of the Superior Court of Justice,
    sitting with a jury, the appellant was convicted of three offences  invitation
    to sexual touching, sexual assault and sexual interference. He was acquitted of
    the offence of assault.

[2]

The criminal charges were historical in nature. The complainant was the
    appellants step-son. He alleged that the appellant had engaged in
    inappropriate sexual behaviour, including asking him to watch him masturbate,
    sexual touching, and one incident of oral sex. The sexual incidents allegedly
    occurred when the complainant was between the ages of 8 and 13.

[3]

The appellants first trial ended in a mistrial in October 2015 because
    the jury was unable to reach a verdict. At the second trial, in November 2016,
    the convictions, and acquittal, set out above were entered.

[4]

The appellant appeals his convictions on five grounds. Two are
    stand-alone grounds and three relate to alleged errors in the trial judges
    jury charge.

[5]

First, the appellant contends that the jury reached inconsistent
    verdicts in acquitting the appellant of assault, but in finding him guilty of
    the three sexual offences.

[6]

We do not accept this submission. In our view, the jurys verdict of not
    guilty on the assault charge is not inconsistent with the findings of guilt on
    the sexual offence charges. The guilty verdicts for all three sexual offences
    are reconcilable with the not guilty on the assault count based on the
    differences between the elements of the offences, the nature of the evidence
    applicable to each count, and the scope of the credibility findings the jury
    was entitled to make. To cite but one example, because of the complainants
    age, consent was not an issue with respect to the sexual offences. On the other
    hand, on the assault charge, the complainants own testimony about play
    fighting with the appellant on occasion made consent a live issue on the
    assault charge. The jurys verdicts on the various counts in the indictment is,
    easily, supportable on any theory of the evidence consistent with the legal
    instructions given by the trial judge: see
R. v. Pittiman
, 2006 SCC 9,
    at para. 7.

[7]

Second, the appellant asserts that the trial judge erred in admitting
    into evidence the appellants videotaped statement to police following his
    arrest. In that statement, there was this exchange:

Officer: Asking that  asking someone you know to touch you or
    asking if you can touch them, thats invitation to sexual touching.

Appellant: That happened.

[8]

The appellant went on to admit that he had asked if he could touch the
    complainant, but the complainant had said No. He also admitted that he
    propositioned the complainant to engage in oral sex, but the complainant had
    declined. The appellant maintained that no actual sexual contact had occurred.

[9]

The appellants statement to police was admitted at his first trial
    after a contested voluntariness
voir dire
.

[10]

At
    the appellants second trial, counsel explicitly agreed that the previous
    ruling would apply. This agreement was based on s. 653.1 of the
Criminal
    Code
, which provides:

653.1 In the case of a mistrial, unless the court is satisfied
    that it would not be in the interests of justice, rulings relating to the 
    admissibility of evidence  that were made during the trial are binding on the
    parties in any new trial.

[11]

For
    the purposes of the appeal, we assume that appeal counsel is entitled to raise
    this issue. We see nothing in the interests of justice to suggest that
    counsels shared position at trial should be overturned. Specifically, we note
    that the judge at the first trial watched the video of the appellants
    statement and was, therefore, in a perfect position to assess it.

[12]

Third,
    the appellant asserts that the trial judge erred in his instruction to the jury
    about how to consider and assess evidence that might be relevant to more than
    one count in the indictment. Specifically, the appellant says that the trial
    judge should have instructed the jury that if it did not believe the
    complainants evidence that he had been assaulted in a non-sexual manner (the
    jury acquitted the appellant on the assault charge), then it was entitled to
    use that disbelief in assessing the sexual assault allegations. In other words,
    the trial judge should have expressly instructed the jury that it was entitled
    to assess the complainants credibility with reference to evidence across all
    the counts.

[13]

We
    disagree. Nothing in the trial judges instructions suggested that the jury
    should compartmentalize its credibility findings. The jury was told that they
    must not use evidence that relates only to one charge in making their decision
    on any other charge. In
R. v. A.W.B.
, 2015 ONCA 185, this court said
    that this precise formulation did not prevent the jury from applying findings
    of the complainants general credibility to all counts (paras. 35-36).

[14]

In
    addition, the jury was instructed to consider the evidence in its entirety in
    deciding how much or little to rely on a witness evidence. The jury was also
    told to use common sense in deciding whether to believe none, some or all of a
    witness evidence.

[15]

Fourth,
    the appellant contends that the trial judge provided a confusing and unhelpful
    instruction on the issue of consent as it related to the sexual assault charge.

[16]

We
    agree that a small portion of the jury charge, relating to only the sexual
    assault charge, was potentially confusing. However, read in its entirety, the
    trial judges charge made it clear that because of the complainants age at the
    time of the offences, consent was not an element the Crown needed to prove to
    ground a conviction for sexual assault. Moreover, the trial judge provided a
    draft jury charge to counsel. Neither counsel objected to the charge on this
    issue. Indeed, both counsel agreed during the pre-charge conference that
    consent was not a live issue on the sexual assault count. In any event, the
    small confusion could not have prejudiced the appellant; indeed, if anything it
    worked to his benefit.

[17]

Fifth,
    the appellant submits that the trial judge erred in his instruction to the jury
    about how to use the appellants prior inconsistent statement, especially in
    relation to the statements he allegedly made at the family meeting that was
    called after the complainant made allegations about the appellants behaviour
    toward him.

[18]

We
    do not accept this submission. With respect to what the appellant said at the
    family meeting, the trial judge instructed the jury:

Unless you decide that [the appellant] made a particular remark
    or statement you must not consider it in deciding this case. You may give
    anything that you find [the appellant] said as much or as little importance as
    you think it deserves in deciding this case. It is for you to say.

We see no problem with this instruction.

[19]

The
    conviction appeal is dismissed. The appellant has abandoned his sentence
    appeal.

Doherty J.A.

J.C. MacPherson J.A.

M.L. Benotto J.A.


