



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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

6.

(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

7.

(a) as soon as feasible, inform the victim of their right to make an
    application for the order; and

8.

(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. Doell, 2016 ONCA 350

DATE: 20160509

DOCKET: C58889

Cronk, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alex Doell

Appellant

Robert Sheppard, for the appellant

Moiz Rahman, for the respondent

Heard: May 5, 2016

On appeal from the convictions entered on October 21,
    2013 by Justice Alan Bryant of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

The appellant was charged with seven counts of historical sexual
    offences involving his underage neighbour, Karen H.  The charges spanned a
    three-year period when the complainant was residing with her mother,
    step-father and siblings at a farm located across the road from the farm owned
    by the appellant and his wife.

[2]

Following a trial by judge and jury, the appellant was convicted of one
    count of sexual assault and one count of gross indecency.  He was acquitted of
    four other sexual offences and the remaining charge, a count of indecent
    assault, was withdrawn by the Crown.

[3]

The appellant appeals from his convictions.

[4]

On appeal, the appellant raises one issue.  He submits that the jurys
    verdicts are inconsistent and cannot be reconciled.  He contends that, as the
    jury clearly concluded that the complainants credibility fell short of
    establishing the offences of which he was acquitted, including the complainants
    claim that she was raped by the appellant at a conservation area situated near
    the appellants farm, the appellant should have been acquitted of all counts. 
    The appellant says that, given the acquittals on the rape charge and three
    other sexual offences, there is a realistic concern that the jury must have
    reached an impermissible credibility compromise in order to convict him of the
    remaining two counts.

[5]

We disagree.  In our view, the verdicts are not inconsistent.

[6]

Credibility was the central issue at trial.  The appellant testified and
    denied any sexual contact with the complainant, at any time.

[7]

The jury was entitled to accept some, all or none of the complainants
    evidence.  The four counts on which the appellant was acquitted, including the alleged
    rape incident at the conservation area, all involved or were related to the
    complainants allegations of vaginal or anal intercourse.  In contrast, neither
    of the two counts of which the appellant was convicted (sexual assault and
    gross indecency) required intercourse.

[8]

By its verdicts, it is apparent that the jury accepted the complainants
    evidence that the appellant engaged in some sexual activity with her before and
    after the date of the conservation area incident but it was not convinced, to the
    requisite criminal standard, that the appellant had intercourse with her.  As
    the trial judge noted in his sentencing reasons:

The jury verdicts clearly distinguished between the acts of
    penetration, which first occurred at the conservation area, and the
    non-penetration sexual offences, which [preceded] and continued after the
    alleged incident at the conservation area.

Thus, the essential elements of the six offences that
    the jury had to consider were different.

[9]

In his charge, the trial judge properly instructed the jury on the
    necessary elements of the charges and on the need to consider each count
    separately, based on the evidence relating to each count.  He also made clear
    that the jury was entitled to decide how much of a witnesss evidence it chose
    to believe.  Based on these unchallenged instructions and the elements of the
    offences charged, it was open to the jury to distinguish between the offences
    involving intercourse and those that did not.

[10]

The jury was not required to reject all the complainants allegations
    simply because they did not accept her evidence of forced penetration, beyond a
    reasonable doubt.  The verdicts, therefore, are supportable on the basis of
    this distinction, consistent with the trial judges instructions to the jury. 
    See for example,
R. v. A.W.B.
, 2015 ONCA 185, (2015) 322 C.C.C. (3d)
    130;
R. v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R. 381;
R. v. B.H.
,
    2015 ONCA 642.

[11]

Accordingly, the appeal is dismissed.

E.A. Cronk J.A.

R.G. Juriansz J.A.

David Watt J.A.


