



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    that could identify the complainant or a witness shall not be published in any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. S.L., 2013
    ONCA 176

DATE: 20130325

DOCKET: C54034

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.L.

Appellant

Matthew Gourlay, for the appellant

Susan Magotiaux, for the respondent

Heard: September 18, 2012

On appeal from the conviction entered on March 26, 2011
    by Justice Maria T. Linhares de Sousa of the Superior Court of Justice, sitting
    with a jury.

Laskin
    J.A.:

A.

overview

[1]

The complainant, M.H., alleged that the appellant, S.L., took her out in
    his car and had sex with her.  She was 15 and he was 33.

[2]

The appellant was charged with sexual interference, invitation to sexual
    touching, and sexual assault.  He did not testify or call a defence.

[3]

After an eight-day jury trial, the appellant was convicted of sexual
    interference but acquitted of invitation to sexual touching and sexual
    assault.  After credit of ten months for pre-sentence custody, he was sentenced
    to three years in jail.

[4]

The appellant appeals his conviction for sexual interference and asks
    for an acquittal.  He contends that the conviction was unreasonable on the
    basis that it is inconsistent with the two acquittals.

[5]

In a jury trial on a multi-count indictment against a single accused, a
    claim of inconsistent verdicts turns on the question whether the verdicts are
    supportable on any theory of the evidence consistent with the trial judges
    proper legal instructions:  see
R. v. J.F.
, 2008 SCC 60, [2008] 3
    S.C.R. 215, at para. 23;
R. v. Pittiman
, 2006 SCC 9, [2006] 1 S.C.R.
    381, at para. 7. Here, 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.


[6]

The appellant submits that the verdicts are not supportable.  He argues
    that because of the complainants age, there was no meaningful difference
    between the elements of the three offences.  Thus, the jury should have either
    convicted or acquitted the appellant of all three charges.  The split verdict
    was not one a properly instructed trier of fact could reasonably have
    rendered.

[7]

The Crown submits that the verdicts are supportable because the jury was
    told to consider each count separately; and because it was told that sexual
    assault required an application of force, but that sexual interference required
    no use of force, only intentional touching.

[8]

To put these submissions in context, I will briefly review the facts
    giving rise to the charges against the appellant.

B.

backgrouNd facts

(1)

The complainant M.H.

[9]

M.H. was 15 years old in July 2010, when the offences were alleged to
    have occurred.  Her mother and the appellant were close friends.  The appellant
    had known her since she was in grade six.

[10]

M.H.
    had a difficult upbringing because of her mothers substance abuse.  She was
    made a ward of the Childrens Aid Society and placed with her aunt and uncle. 
    She fought with them frequently and either ran away or was asked to leave their
    home several times.

(2)

The incident

[11]

In
    early July, M.H. had a fight with her aunt and uncle and left their house to
    stay with friends.  On July 9 at about 10:00 p.m., she went to her
    grandmothers home.  Her grandmother called M.H.s mother, who picked M.H. up
    in a taxi and took her to the appellants apartment.

[12]

A
    few hours later, M.H. went to sleep in the appellants bedroom.  She awoke between
    3:00 a.m. and 4:00 a.m.  Her mother was in the bed beside her talking to the
    appellant.  M.H. said that she was thirsty.  Her mother told her that the
    appellant would get her a drink.  M.H. went to the kitchen with the appellant
    to get a glass of water.

[13]

According
    to M.H., the appellant then suggested that the two of them go somewhere.  He
    told M.H.s mother that they were going to do a run, which M.H. understood as
    a trip to buy drugs.

[14]

M.H.
    testified that they got into the appellants car and started driving around.  The
    appellant took M.H. to an empty parking lot behind a building near his
    apartment.  He parked the car and told M.H. to get in the backseat, which she
    did.  He got in the backseat too.

[15]

The
    appellant then pulled down his pants and told M.H. to take off her pants.  She
    did so.  She removed her jogging pants and the bathing suit bottoms she was
    wearing.

[16]

M.H.
    testified that the appellant asked her to give him a blow job.  She complied. 
    After the oral sex, the appellant told her to get on top of him.  She did. They
    began to have vaginal intercourse. After some time, the appellant told M.H. to
    lay down on the seat so he could continue to have vaginal intercourse with
    her.  Again, she complied.

[17]

He
    had vaginal intercourse with her for not that long.  M.H. thought that he
    ejaculated.  He did not use a condom.  She never said no or stop.  She
    agreed that the appellant did not threaten her with violence or use any kind of
    physical coercion.

[18]

After
    the intercourse, the appellant gave M.H. a wet wipe.  She cleaned off her
    vaginal area and threw the tissue out of the car.  The appellant told her not
    to tell her mother what they had done.  He gave M.H. some weed so it would
    appear that they went on a drug run.

[19]

They
    drove back to the appellants apartment, and M.H. went back to bed.  The next
    morning the appellant sat beside M.H. on the couch, touched her leg, and told
    her its our secret.  M.H. testified that the appellant threatened he would
    cut her up if she told anyone.  She said she would not tell.  He gave her some
    money and jewellery and drove her and her mother to a bus stop.

(3)

The forensic evidence

(i)

Examination of the complainant

[20]

The
    day after the incident M.H. confided in a friend.  The friend told her mother,
    and her mother told M.H.s aunt and uncle.  M.H.s aunt then contacted the
    police.  M.H. gave a statement and was taken for an examination.

[21]

The
    examination showed no injuries, and vaginal swabs did not detect any
    spermatozoa.  The expert forensic analyst testified that it was less likely
    sperm would be detectable on an internal swab taken two days after sexual
    activity.

(ii)

The discarded tissue

[22]

The
    police took M.H. to locate the scene of the incident.  She was able to identify
    the parking lot where the appellant had taken her.  At the parking lot, she
    spotted what she believed to be the tissue she had discarded after the
    incident.  The tissue was analysed, and no semen was detected on it.

(iii)

DNA evidence

[23]

Two
    days after the incident, the police seized the jogging pants M.H. had worn that
    night.  They were tested for sperm.  The initial screening tests were positive.

[24]

Two
    sample areas  the front-centre-right of the crotch panel and the back-right of
    the crotch panel  were submitted for further testing.  On a second screening,
    these two samples also tested positive.  Although no spermatozoa could be seen
    under a microscope, the analyst testified that in her opinion the fluid on the
    pants was most likely semen.

[25]

The
    appellant matched the major DNA profile found in both the front and back panel
    of the inside crotch of the complainants jogging pants.  The probability that
    a random person had contributed the DNA that matched the appellant was 1 in 7.4
    billion (back panel) and 1 in 21 trillion (front panel).

(4)

The defence

[26]

The
    defence challenged the credibility and reliability of M.H.s evidence, and
    argued that the forensic evidence did not support the charges.

C.

analysis

[27]

The
    appellants simple, yet powerful proposition is that he was both convicted and
    acquitted by the same jury for a single act committed against the same
    person.  His proposition seemingly has merit:

·

The three offences refer to a single instance of sexual activity
    with a minor;

·

The allegations all refer to a single episode lasting only a few
    minutes;

·

The allegations against the appellant depended on the credibility
    of a single witness: the complainant; and

·

The evidence led by the Crown on the three counts was identical.

[28]

Moreover,
    the elements of the three offences were virtually identical.  The trial judges
    instructions on what the jury had to find to convict on each offence may be
    summarized as follows.

·

Sexual interference (s. 151 of the
Criminal Code
):

That M.H. was under 16;

That the appellant touched M.H.; and

That the touching was for a sexual
    purpose.

·

Invitation to sexual touching (s. 152 of the
Criminal Code
):

That M.H. was under 16;

That the appellant invited M.H. to touch his body; and

That the touching the appellant invited was for a sexual
    purpose.

·

Sexual assault (s. 271 of the
Criminal Code
):

That the appellant intentionally applied forced to M.H.; and

That the application of force, even an intentional touching,
    occurred in circumstances of a sexual nature.

[29]

M.H.s
    age was admitted; the appellant did not claim that he was reasonably mistaken
    about her age; and as M.H. was under 16, she could not in law consent to the
    sexual activity.

[30]

Thus,
    the appellant contends that he should either have been convicted or acquitted
    of all three offences  convicted if the jury was satisfied beyond a reasonable
    doubt that the incident M.H. recounted took place and acquitted if the jury had
    a reasonable doubt about whether the incident took place.  The verdicts the
    jury did render, the appellant says, cannot be reconciled.  The conviction for
    sexual interference is inconsistent and therefore unreasonable.

[31]

As
    attractive as the appellants contention appears to be, I cannot accept it.  As
    I said in the overview, the test from
J.F.
and
Pittiman
is
    whether the three verdicts are supportable on any theory of the evidence
    consistent with proper instructions of the trial judge.  In my opinion, the
    verdicts are supportable.

[32]

The
    starting point is the trial judges instructions on how the jury was to
    approach its task.  She did not tell the jury to take an all-or-nothing
    approach.  Instead, with the approval of both counsel, she instructed the jury
    to consider each charge separately.  She said:

Your verdicts on each charge may, but do not have to be the
    same.  They may be the same, but they do not have to be the same, or they may
    be different.  In each case, the verdict will depend on your assessment of the
    evidence and application of the legal principles that relate to that charge.

She then went on to outline the legal components of
    each charge separately and independently.

(1)

Sexual interference and invitation to sexual touching

[33]

In
    the light of these instructions, the conviction on the charge of sexual
    interference and the acquittal on the charge of invitation to sexual touching
    are reconcilable.  The sexual interference charge against the appellant was
    particularized as touching M.H. with his penis.  The invitation to sexual
    touching charge was particularized as inviting her to touch his penis  in
    other words, inviting her to perform fellatio.

[34]

By
    convicting the appellant of sexual interference the jury accepted that sexual
    activity had occurred.  By acquitting the appellant of invitation to sexual
    touching the jury showed that it did not unreservedly accept all of M.H.s
    testimony.  Although it accepted that the sexual encounter took place, it
    rejected or at least had a reasonable doubt that the appellant directed M.H. to
    perform oral sex on him.  Of course, as the trial judge instructed the jury, it
    was entitled to believe some, none, or all of M.H.s evidence.  Thus, the
    conviction for sexual interference and the acquittal for invitation to sexual
    touching are supportable.  That leaves the conviction for sexual interference
    and the acquittal for sexual assault to be considered.

(2)

Sexual interference and sexual assault

[35]

In
    principle, the offence of sexual interference requires an intentional touching
    while the offence of sexual assault requires the intentional application of
    force: see s. 151 and s. 271 of the
Criminal Code
, respectively. 
    However, force includes any touching, no matter the degree of strength or
    power applied:
R. v. Cuerrier
, [1998] 2 S.C.R. 371, at para. 10. See
    also
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, at paras. 23-25.  Thus, if
    the appellant intentionally touched M.H. in circumstances of a sexual nature,
    the intentional application of force would be implied.

[36]

That
    is not, however, how the trial judge instructed the jury.  Instead, as I will
    elaborate on, the jury was told that sexual interference required an
    intentional touching but no use of force.  In contrast, the jury was told
    numerous times that sexual assault required an application of force.  The
    different instructions on whether touching or the application of force was
    required reconciles the different verdicts and shows that they are
    supportable.

[37]

As
    M.H.s age was admitted, on the charge of sexual interference the jury was
    instructed to consider whether the appellant touched M.H. and if so, whether he
    touched her for a sexual purpose.  On the element of touching, the trial judge
    told the jury: Force is not required but an accidental touching is not enough. 
    The full passage where this instruction was given is as follows:

Touching involves intentional physical contact with any part of
    [M.H.]s body.  The contact may be direct, for example, with a hand or other
    part of the body such as a penis.  Force is not required but an accidental
    touching is not enough.

[38]

On
    the charge of sexual assault, the trial judge discussed the element of force,
    which she had discounted in her instructions on the sexual interference
    charge.  She told the jury to consider two questions. First, did the appellant
    intentionally apply force to M.H.? Second, was the force applied in
    circumstances of a sexual nature?

[39]

On
    the first question, the trial judge elaborated on the nature of the force
    required:

The force applied may be violent, or even gentle.  To be an
    assault, however, [S.L.] must apply the force intentionally.  An accidental
    touching is not an intentional application of force.

The trial judge told the jury that in assessing
    whether force was applied intentionally it should consider actions or words,
    including any threats accompanying the application of force.

[40]

On
    the second question on the charge of sexual assault  whether force was applied
    in circumstances of a sexual nature  the trial judge told the jury that the
    application of force included intentional touching.

[41]

The
    trial judges instructions on the charges of sexual interference and sexual
    assault  indeed on all three charges  were proper; they were legally correct.
     For each charge she set out the components of the offence, generally following
    the relevant sections of Justice Watts
Ontario Specimen Jury Instructions
    (Criminal)
(Toronto: Thomson Carswell, 2005).  Further, both trial counsel
    had an opportunity to review a draft of the jury charge and discuss any concerns
    with the trial judge.  Neither counsel took issue with the relevant aspects of the
    trial judges final instructions.  Moreover, even in this court, the appellant
    did not argue that the trial judges instructions were incorrect in law.

[42]

However,
    three things about the instructions on sexual interference and sexual assault help
    explain the different verdicts.  First, as I said earlier, the trial judge instructed
    the jury to consider each charge separately.  They were to apply their minds to
    whether guilt was proven beyond a reasonable doubt on each of the offences
    independently.

[43]

Second,
    though proper, the instructions were not as complete as they could have been. 
    The jury was given correct instructions on sexual interference juxtaposed with
    correct instructions on sexual assault.  Placing the components of these two
    offences side by side created a contrast between the formers touch
    requirement and the latters force requirement.  More complete instructions
    could have explained the relationship between touch and force  that force
    includes any touching: see
Cuerrier
.  But the trial judge did not
    clearly tell the jury that the force component of sexual assault was satisfied
    if the appellant intentionally touched the complainant.

[44]

Third,
    on her instructions on sexual assault the trial judge told the jury it could
    consider threats accompanying the application of force.  In contrast, she did
    not tell the jury to consider alleged threats on the other counts, and M.H. had
    agreed that the appellant did not threaten her during the sexual incident.

[45]

The
    reasonable inference from these instructions is that the jury thought the
    application of force was required to convict on sexual assault but not required
    on sexual interference.  The reasonableness of this inference finds support in
    counsels submissions during the sentencing proceedings.  The Crown observed
    that the jury must have found the appellant did not use force in the sexual
    touching.  Defence counsel agreed.  He said: I agree with my friend when she
    says that obviously the issue of force was rejected.

[46]

I
    therefore conclude that the different verdicts are supportable on the
    instructions of the trial judge and that those instructions, though not as
    complete as they might have been, were legally correct.  Accordingly, the
    appellant has failed to show inconsistency.

(3)

The conviction for sexual interference was reasonable

[47]

Finally,
    I agree with the Crown that the conviction for sexual interference is a fair
    result, not an inexplicable one.  M.H.s evidence and the appellants DNA found
    in the inside crotch of her pants reasonably support the verdict.

D.

conclusion

[48]

The
    verdicts are not inconsistent.  I would dismiss the appeal.

Released: Mar. 25, 2013                               John
    Laskin J.A.

JL                                                                     I
    agree R.G. Juriansz J.A.

I
    agree M. Tulloch J.A.


