



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. M.J.H., 2021 ONCA 133

DATE: 20210303

DOCKET: C65984

Fairburn A.C.J.O., Watt and
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.J.H.

Appellant

Eric Neubauer, for the appellant

Molly Flanagan, for the respondent

Heard: January 26, 2021 by
    video conference

On appeal from the conviction entered by
    Justice J. Christopher Corkery of the Superior Court of Justice, sitting with a
    jury, on July 5, 2018.

REASONS FOR DECISION

Overview

[1]

The appellant and complainant met through a
    dating website. After communicating online for a few days, they decided to meet
    up on May 21, 2016 and go for a walk. Following the walk, the complainant went
    to the appellants condominium. She had two glasses of wine. The complainant
    testified that, at some point, the intoxication hit
[her]
    like a brick wall.
She testified about a series of
    events that followed, including phases of paralysis where the complainant was
    unable to move while being attacked by the appellant. The attack was said to
    include both vaginal and anal intercourse, as well as choking.

[2]

At trial, the appellant maintained that the
    complainant consented to all sexual activity that night, arguing that she was
    lying about the lack of consent and the alleged choking.

[3]

The appellant was charged with two counts: (1)
    sexual assault; and (2) choking to overcome resistance. The jury returned a
    verdict of guilty on the first count and not guilty on the second count.

[4]

This conviction appeal rests on three grounds:

(a) The trial judge did not properly relate the evidence to the sole
    issue to be decided  the complainants credibility  in the charge to the jury;

(b) The two verdicts are inconsistent; and

(c) The verdict of guilty on the sexual assault count is
    unreasonable.

[5]

For the reasons that follow, the appeal is
    dismissed.

The Charge to the Jury: Relating the Evidence
    to the Complainants Credibility

[6]

The appellant emphasizes that, as it related to
    the sexual assault count, the only issue to be decided at trial was the
    credibility of the complainant and the reliability of her evidence. As the
    Crowns case rested largely on the complainants evidence, her credibility was
    key to the verdict.

[7]

However, as the appellant points out, the
    complainants evidence was not without difficulties on the credibility front. For
    instance, she misled the police in the initial interview following the alleged
    events, claiming that she never mixed alcohol with her prescription drugs. She
    later testified at trial that she had consumed alcohol when taking prescription
    medication on several prior occasions. As well, the complainant testified to a
    state of inebriation that is said to have exceeded what her toxicology results
    were capable of supporting. Notably, the complainants evidence on this point
    is said to have been undermined by her own acknowledgement as to some of the
    actions she was capable of undertaking shortly after the alleged events, such
    as moving from one room to another.

[8]

A final example of the issues with the
    complainants credibility is with respect to her evidence that she screamed
    throughout the entire, lengthy encounter. The appellant points out that the
    complainants evidence on this point is highly if not completely suspect, given
    that multiple defence witnesses, who would have been in a position to hear that
    screaming had it occurred, testified that they did not hear a woman screaming
    that night.

[9]

In light of these credibility issues, the
    appellant claims that it was incumbent on the trial judge to provide careful instructions
    to the jury. He argues that the trial judge was duty-bound to relate the
    problematic aspects of the complainants evidence, including the evidence
    undermining her testimony, to the central issue of credibility. The appellant
    argues that the charge to the jury fell short in this regard.

[10]

Despite the capable submissions of the appellants
    counsel, we do not give effect to this ground of appeal. While we accept that
    there were issues with the complainants evidence, which needed to be carefully
    considered by the jury, a functional and contextual approach to the jury charge
    leads to the conclusion that the jury was well equipped to properly consider
    the evidence, including its inconsistencies.

[11]

Early on in the charge to the jury, the trial
    judge provided the jury with the tools necessary to consider issues of both
    credibility and reliability. Included in that instruction was an emphasis on
    the jurys need to consider inconsistencies in a witnesss evidence and whether
    they appeared to result from an honest mistake or a deliberate lie. The
    jury was told that a deliberate lie is always serious and could taint all of
    a witnesss evidence.

[12]

Later, the jury was instructed to pay particular
    attention to the complainants evidence because the Crowns case rested
    wholly upon her evidence. Therefore, the trial judge warned it was
    essential for the jury to test the complainants evidence in the light of
all

of the other evidence presented (emphasis in original). This instruction
    was repeated and reinforced just one paragraph later. The jury was then told
    the following:

In this case there were a number of inconsistencies
    in the complainants own evidence and a number of inconsistencies between the complainants
    evidence and the testimony of other witnesses. While it is true that minor
    inconsistencies may not diminish the credibility of a witness unduly, a series
    of inconsistencies may become quite significant and cause you to have a
    reasonable doubt about the reliability of the witnesss evidence. There is no rule
    as to when, in the face of inconsistency, such doubt may arise but at the least
    you should look to the totality of the inconsistencies in order to assess
    whether the witnesss evidence is credible and reliable.

[13]

Then, later in the charge to the jury, the trial
    judge again pointed out the importance of prior inconsistent statements in
    assessing a witnesss veracity, suggesting that any such differences may be
    important in deciding whether or how much you believe of or rely upon the
    witness
[s]
testimony. The
    trial judge then used a prior inconsistent statement of the complainant as the
    first example of how this rule of evidence operates.

[14]

Finally, when summarizing the parties positions
    for the jury, the trial judge devoted twice the amount of time to the defence
    position than the Crown position. The defence position was rooted entirely in
    what was said to be the complainants failure to tell the truth to the jury. The
    argument that the complainant [was] not telling the truth was highlighted multiple
    times by the trial judge, each time accompanied by a review of the evidence
    said to undermine the complainants version of events.

[15]

Accordingly, while the appellant is right that
    there were credibility issues that the trier of fact had to consider in this
    case, it is our view that the jury was properly equipped to consider these
    issues. It is not for this court to reconsider those credibility findings.

The Verdicts are Not Inconsistent

[16]

The appellant also argues that the verdicts are
    inconsistent, as the complainants account of choking is inextricably
    intertwined with the sexual assault itself. Therefore, this court must set
    aside the conviction on sexual assault and align it with the acquittal on
    choking to overcome resistance. We do not accept this submission because it was
    open to the jury to arrive upon different verdicts.

[17]

The question to be resolved when considering
    whether 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.

[18]

The crime of choking to overcome resistance
    contains additional elements, beyond those involved in a sexual assault. In
    addition to the essential elements making up a sexual assault, the Crown must
    also prove that there was a choking and that the choking was done with the
    intent to render the complainant incapable of resistance:
Criminal Code
,
    R.S.C. 1985, c. C-46, s. 246(a).

[19]

It was open to the jury to accept all, some, or
    none of the complainants testimony as it pertained to the offence of choking
    to overcome resistance. The jury was properly instructed to this effect.

[20]

The differing verdicts in this case could have
    resulted from different things. By way of example, the jury may have accepted the
    complainants evidence supporting the conviction for sexual assault but
    rejected her evidence as to the fact of having been choked. Alternatively, the
    jury may have accepted the complainants evidence on that point but had a doubt
    about the appellants
mens rea
 the intent to overcome resistance. Equally,
    the jury may have been uncertain about the complainants evidence and unprepared
    to act on it without some physical evidence to support the complainants claim.
    Notably, while the complainant had no bruising to her neck, she had bruising
    and a small tear in her anus. While the latter injury was not necessarily
    evidence of a sexual assault, it was not inconsistent with one either. Yet, the
    lack of bruising to the neck may have caused the jury to have a reasonable
    doubt on the count of choking to overcome resistance.

[21]

Therefore, it cannot be said that the verdicts
    are inconsistent.

The Unreasonable Verdict Ground

[22]

Finally, the appellant argues that the
    conviction for sexual assault constitutes an unreasonable verdict. He contends
    that the acquittal on the choking count is a red flag. We have already
    addressed why we do not see it that way.

[23]

The appellant also maintains that there were
    sound reasons to doubt the complainants credibility. We have already set out some
    of the alleged problematic aspects of her evidence. We pause to note here that
    the respondent rejects many of the arguments advanced by the appellant as to
    why the complainants credibility was shaken at trial. To the contrary, the
    respondent argues that many of the factors cited by the appellant are not
    problematic when viewed in the context of the whole record.

[24]

We see no need to resolve each of these areas of
    alleged concern. As previously explained, the charge to the jury was complete
    and forceful as it related to the need for the trier of fact to focus in on the
    issue of credibility and resolve the problems identified by the appellant
    before considering entering a conviction. Having regard to those legally
    correct instructions, a verdict of guilty on the sexual assault count was
    available to the jury.

[25]

This court does not act as a thirteenth juror:
R.
    v. W.H.
, 2013 SCC 22, [2013] 2 S.C.R. 180, at
    para. 27
. In our view, the conviction on the sexual
    assault count is supportable on any

reasonable view of the evidence:
R.
    v. Burke
,
[1996] 1 S.C.R. 474, at para. 7;
W.H.
, at para. 2.

Said differently, considered as a
    whole, the evidence does not preclude the conclusion reached by the jury:
R.
    v. Pannu
, 2015 ONCA 677, 328 C.C.C. (3d) 149, at para. 163, leave to
    appeal refused,
[2015] S.C.C.A. No. 498
.

Disposition

[26]

The conviction appeal is therefore dismissed.

Fairburn A.C.J.O.

David Watt J.A.

Grant Huscroft J.A.



