R v R.V. (ONCA)
[Aug 26/19] Irreconcilable Verdicts - Sexual Assault and Sexual Interference with a Minor - 2019 ONCA 664 [Majority Reasons by G.R. Strathy C.J.O., with G. Pardu J.A., and Gary Trotter J.A. concurring, Dissent Reasons by Paul Rouleau J.A., with B.W. Miller J.A. concurring in dissent]
AUTHOR’S NOTE: Often, the same facts in a criminal case can fit two different offences. Crown prosecutors often leave both sets of charges in place. This case shows that what they are really doing in such circumstances (where the criminal act is legally the same) is doubling their chance of failure. If an acquittal results on one of the charges, the finding of guilt becomes irreconcilable with that. The result ends up being a full acquittal on appeal. Here, the ONCA sat five Justices to resolve an alleged inconsistency in appellate jurisprudence regarding irreconcilable verdicts.
 The appellant appeals against his convictions for sexual interference and invitation to sexual touching. He asserts these convictions are inconsistent with his acquittal on a charge of sexual assault based on the very same evidence, that his convictions are therefore unreasonable and that, in the absence of a successful Crown appeal of the acquittal, his convictions must be quashed and acquittals entered in their stead. He also seeks leave to appeal his sentence of imprisonment for two years less a day and two years’ probation.
 A five-judge panel was convened to hear this appeal, because the Crown submits there are conflicting authorities in the Supreme Court of Canada and in this court concerning the role of the trial judge’s instructions to the jury in the inconsistent verdict analysis. It says that the Supreme Court’s decision in R. v. J.F., 2008 SCC 60 (CanLII),  3 S.C.R. 215, relied upon by the appellant, is irreconcilable with that court’s decision in R. v. Pittiman, 2006 SCC 9 (CanLII),  1 S.C.R. 381. It also submits that decisions of this court are also in conflict, citing, among other cases, R. v. S.L., 2013 ONCA 176 (CanLII), 300 C.C.C. (3d) 100, leave to appeal to S.C.C. refused,  S.C.C.A. No. 218, which applies Pittiman, and R. v. Walia, 2018 ONCA 197 (CanLII), which applies J.F. The Crown submits that Pittiman remains the leading Supreme Court judgment on inconsistent verdicts, and conflicting statements in J.F. are obiter dicta and should not be followed.
 For the reasons that follow, I do not agree. The Supreme Court’s statements in J.F. provide authoritative guidance to appellate courts, are consistent with Pittiman and should be followed. Accordingly, I would allow the appellant’s appeal, quash the guilty verdicts and direct verdicts of acquittal to be entered in their stead. I would grant the Crown an extension of time to cross-appeal the acquittal, but would dismiss that cross-appeal.
The Law of Inconsistent Verdicts
 [A] jury that renders genuinely inconsistent verdicts as described above, necessarily acts unreasonably. This is because, as the jurisprudence shows, there are only a few ways in which a jury can reach genuinely inconsistent verdicts in the case of a single accused charged with multiple offences, and “all of them entail a violation of the court’s instructions”: Eric L. Muller, “The Hobgoblin of Little Minds - Our Foolish Law of Inconsistent Verdicts” (1998) 111 Harv. L. Rev. 771, at pp. 777-778, 781-786.
 One possibility is that the jury rendered inconsistent verdicts because they misunderstood the evidence or the trial judge’s instructions....
 A second possibility is that the jury .... splits the difference and obtains unanimous support for some negotiated mix of not guilty and guilty verdicts, contrary to its instructions that the verdict on each count must be the unanimous opinion of the whole jury and that an accused may only be convicted if his guilt is proven beyond a reasonable doubt....
 A third possibility is nullification.... A jury that exercises its power to nullify violates the trial judge’s instructions that it “must return a verdict of guilty” if it is satisfied that all the elements of an offence have been proven beyond a reasonable doubt.
 In Pittiman, Charron J. explained that an appellate court’s jurisdiction to set aside a guilty verdict on the ground of inconsistency is under s. 686(1)(a)(i): unreasonable verdict. She stated, at para. 6:
A court of appeal’s power to set aside a verdict of guilt on the ground that it is inconsistent is found under s. 686(1)(a)(i) of the Criminal Code which provides that the court “may allow the appeal where it is of the opinion that ... the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence” (emphasis added). This Court has the power to make the same order under s. 695(1). 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), 1974 CanLII 748 (ON CA), 15 C.C.C. (2d) 562 (Ont. C.A.). [Underline and italics in original.]
 The Crown’s right of appeal is much more limited. The Crown may only appeal from an acquittal on “any ground of appeal that involves a question of law alone”: Criminal Code, s. 676(1)(a); see also R. v. A.B.A., 2019 ONCA 124 (CanLII), at para. 4. The court may dismiss the appeal or allow the appeal, set aside the verdict and either order a new trial or, “except where the verdict is that of a court composed of a judge and jury”, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law: Criminal Code, s. 686(4).
 To summarize, Fish J. [in R. v. J.F., 2008 SCC 60 (CanLII),  3 S.C.R. 215] made four points at paras. 21, 23 and 41 of his reasons:
- if the Crown wants to respond to an inconsistent verdict argument by asserting that the acquittal was the result of a legal error in the instructions for that offence, it must appeal the acquittal;
- if the Crown fails to appeal the acquittal, and cannot otherwise reconcile the verdicts, they remain inconsistent because the inconsistency cannot be cured simply by asserting error of law in the acquittal;
- the inconsistent verdict analysis is partially objective – it asks whether, assuming it was properly instructed, a reasonable jury could have rendered the verdicts based on the evidence before it; and
- the preeminent policy considerations underlying the inconsistent verdict analysis are “legal process” and “the legitimacy of verdicts”.
 The partially objective nature of the inconsistent verdict analysis, as described by Fish J., is consistent with the general test for unreasonable verdicts articulated by the Supreme Court. In Corbett v. R., 1973 CanLII 199 (SCC),  2 S.C.R. 275, at p. 282, the court said the question is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered”: see also R. v. Yebes, 1987 CanLII 17 (SCC),  2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15 (CanLII),  1 S.C.R. 381, at paras. 36, 42; and R. v. Villaroman, 2016 SCC 33 (CanLII),  1 S.C.R. 1000, at para. 55. The court does not ask whether the jury was properly instructed in fact. Rather, the question is whether a hypothetical, properly instructed jury could reasonably have returned the verdict(s) it did. The same is true of the test for inconsistent verdicts, which are, after all, a subspecies of unreasonable verdict.
 In my view, while the observations of Fish J. were not integral to the result in J.F., they were plainly intended as guidance to appellate courts. They have solid jurisprudential foundations and are grounded in principle.
 To repeat, Fish J. wrote at para. 21 of J.F.:
[A]s a matter of legal process and the legitimacy of verdicts, I would decline to uphold the respondent’s conviction on the ground that it can be reconciled with his acquittal on another count of the same indictment on the basis of a legal error at trial. [Emphasis in original.]
 For these reasons, it is my view that Fish J.’s observations in J.F. were intended as guidance to appellate courts. The appellant points out that Fish J.’s use of italics in para. 21 suggests that he was making a point for appellate courts to follow. Justice Fish’s observations are also consistent with the Supreme Court’s jurisprudence, including Pittiman, on the subject of inconsistent verdicts, and with Mahalingan and R. v. Punko, 2012 SCC 39 (CanLII),  2 S.C.R. 396, on the subject of issue estoppel. Finally, his observations are grounded in principles of fairness of the criminal trial process and respect for verdicts. In short, I agree with the appellant that Fish J.’s observations should be treated as “authoritative obiter” and ought to be followed.
 This court’s decision in R. v. Plein, 2018 ONCA 748 (CanLII), 365 C.C.C. (3d) 437, raises different considerations because it was an appeal from an allegedly inconsistent verdict in a judge-alone trial. The appellant was charged with failing to provide the necessaries of life (s. 215(1)(c)), criminal negligence causing death (s. 220), and unlawful act manslaughter (s. 236) in connection with the deaths of his mother and sister, who were under his care. He was found guilty of all three charges in the case of his mother’s death, and in relation to his sister’s death, he was found not guilty of manslaughter but guilty of the other two offences. He argued that the criminal negligence conviction in relation to his sister’s death was inconsistent with his acquittal of manslaughter. The Crown conceded that the verdicts were inconsistent, but argued that the criminal negligence conviction should be upheld since the acquittal of manslaughter arose from a clear legal error and the criminal negligence conviction was reasonable and supported by the record.
 This court agreed, finding that the manslaughter acquittal arose from a “manifest legal error”: para. 23. Justice Paciocco, speaking for the court, stated at para. 23: “In my view, the law does not require an otherwise unassailable conviction to be set aside in a judge alone trial because an inconsistent, demonstrably unsound acquittal has been entered on a functionally identical charge in the same proceedings.”
Application to the Case of Sexual Assault and Sexual Interference before a Jury
 On the evidence presented to this jury, if the appellant was guilty of either sexual interference or invitation to sexual touching, he was necessarily guilty of sexual assault. No properly instructed jury could reasonably have reached a different conclusion. This was demonstrated by the trial judge’s review of the evidence and is illustrated by the following extract from the Crown’s closing address:
He sexually assaulted her between the ages of 6 and 7 to 12 or 13 and in that he committed the offence of sexual assault, sexual interference. He had her touch him in a sexual manner and that he committed the offence of invitation to sexual touching.
 In my view, the cause of the inconsistent verdicts in this case is a matter of pure speculation in light of the evidence, the positions of trial counsel and the trial judge’s instructions. As this court said in Walia, “[t]here is no benefit to speculating about how the jury came to its inconsistent verdicts, whether by way of unprincipled compromise or in response to the flawed instructions”: para. 15. Moreover, in the words of Fish J. in J.F., “[i]mproper instructions do not make improper verdicts proper”: para. 23. The allegedly “confusing” instruction on sexual assault cannot reconcile the verdicts and, therefore, the convictions must be set aside.
 What, then, of the effect of the Crown appeal in this case? In my respectful view, an appeal of the acquittal of sexual assault cannot succeed. The trial judge gave a legally correct instruction. The jury was expressly told, twice, that any physical contact, even a gentle touch, could amount to the “force” necessary for sexual assault.
 In my view, the sexual assault instruction was not “so unnecessarily confusing that it constituted an error of law”: R. v. Hebert, 1996 CanLII 202 (SCC),  2 S.C.R. 272, at para. 8; and R. v. Pintar (1996), 1996 CanLII 712 (ON CA), 30 O.R. (3d) 483 (C.A.), at p. 497.
 Moreover, the Crown reviewed the final draft of the charge during the pre-charge conference, and made no objection to the instruction now said to be erroneous. As Doherty J.A. wrote in Bouchard, at para. 38, “[w]hen the trial judge’s instructions are consistent with the instructions worked out by counsel and the trial judge in the pre-charge conference, and counsel has no objections after the charge is delivered, it is an understatement to describe counsel’s silence as merely ‘a failure to object’”; see also J.F., at paras. 22-23; and Barton, at para. 150. This observation must apply with even greater force in the case of a Crown appeal.
 The Crown, therefore, cannot demonstrate an error of law in the instruction on sexual assault, the only basis on which it would be entitled to have the acquittal set aside under s. 686(4). Nor can it establish that leaving simple assault as an available verdict tainted the acquittal.
 Since the acquittal must stand, ordering a retrial on either of the other two counts would invite the jury to return a verdict inconsistent with the appellant’s acquittal and would give rise to a claim of issue estoppel. This we cannot do.
 This court has repeatedly stressed that trials – all trials, whether judge-alone or judge and jury – should be made less complicated, not more complicated. Proceeding with duplicative counts complicates and prolongs the trial and is a recipe for jury confusion and inconsistent verdicts. This is particularly so in cases of sexual assaults on children, as illustrated by this and other cases to which I have referred. Here, it was evident that if the jury was satisfied beyond a reasonable doubt that sexual touching occurred, the accused should be convicted of both sexual assault and sexual interference. In that event, one of those counts would have been stayed based on Kienapple v. R., 1974 CanLII 14 (SCC),  1 S.C.R. 729: see for example, R. v. Mair (1998), 1998 CanLII 1659 (ON CA), 122 C.C.C. (3d) 563 (Ont. C.A.), at para. 18; and R. v. S.J.M., 2009 ONCA 244 (CanLII), 247 O.A.C. 178, at paras. 8-10. Why was it necessary to proceed with both counts, when a stay of one was inevitable on conviction of both?
R v Josipovic (ONCA)
[July 31/19] Jury Instructions - Rolled up Instructions for Multiple Accused - 2019 ONCA 633 [Reasons by Doherty J.A., with C.W. Hourigan J.A., and Harvison Young J.A. concurring]
AUTHOR’S NOTE: Taking shortcuts in jury instructions on multiple accused trials is both popular and perilous. When those shortcuts involve grouping the legal instructions between both accused into one where it seems the law for both should be the same, the danger becomes the both accused are put in the same guilty or not guilty basket. By choice of format, the instructing justice creates the impression that both were either involved together or not involved together. Where the case against each is different, the danger is that the jury is pushed away from this conclusion by the format of the instructions. Such was the error in this case. As in most cases in the criminal justice system, here efficiency came at the cost of fairness.
 John Josipovic (“John”) and his younger brother, Mato Josipovic (“Mato”), were charged with the first degree murder of James Louis Malone (“Malone”). The jury convicted both appellants of second degree murder. Each received a sentence of life imprisonment, without eligibility for parole for 13 years.
 The deceased, Malone, was shot at point-blank range and killed as he lay on a street in the east end of Hamilton. It was accepted at trial that one of the appellants shot and killed Malone and that both appellants were present when Malone was killed.
 The Crown argued that the appellants had agreed shortly before the shooting that they would hunt down and kill Malone. They went looking for Malone in John’s truck. They found him and chased him through the streets of the east end of Hamilton for several minutes, firing several shots. Eventually, they caught Malone and killed him.
 Various witnesses saw parts of the chase that culminated in the shooting of Malone. Some identified the passenger of the truck as the shooter. The Crown argued that the evidence supported the inference that Mato was the passenger and that John was driving his truck throughout the chase.
 The Crown submitted, however, that it did not matter, for the purposes of criminal liability, which brother actually fired the gun. The Crown argued that Malone’s killing was the product of, and done in furtherance of, the brothers’ plan to find and kill him. The Crown took the position that, whichever brother fired the fatal shot, both were guilty of first degree murder.
 John testified and admitted that he shot and killed Malone. He testified that he had the gun throughout and fired all of the shots. He denied any plan with Mato to find and kill Malone. According to him, his brother had nothing to do with the killing. John advanced the defences of self-defence and provocation.
 Mato also testified. He, too, indicated that John had the gun throughout the chase. Mato further testified that he saw John knock Malone to the ground with the shotgun, heard a shot as he exited the truck and then observed that Malone was deceased. Mato indicated that he was driving John’s truck and doing the best he could to get John to stop the pursuit. Mato denied that he was party to any plan to murder Malone, and insisted he had no involvement in the killing of Malone. He only wanted to go home, but felt he could not abandon his brother.
 Some of the evidence from the witnesses who saw parts of the chase supported the inference that Mato was the passenger and the shooter. Parts of their evidence were also consistent with the Crown’s contention that the driver of the truck and the individual on foot with the gun were working in tandem in an effort to “corral” Malone. One witness also described what appeared to him to be an effort by the driver of the truck to run Malone over.
 Based on the timing of the 9-1-1 calls, the fatal shot was fired at 1:26 a.m., about three or four minutes after the initial shot was fired. In total, six shots were fired at Malone.
 After Malone was killed, the brothers immediately drove home to Grimsby. The police quickly identified John’s truck as being at the scene of the shooting. They had John’s home under surveillance by early the next morning. They saw John standing by a fire in the fire pit in his yard. Subsequent forensic examination of the fire pit revealed traces of clothing. The Crown theorized that John was burning the bloodstained clothing that either he or Mato was wearing at the time of the shooting.
 Both appellants submit that the trial judge’s instructions, read as a whole, conflated the positions advanced by the appellants into a single defence position which effectively treated the appellants as a single entity for the purposes of the jury’s deliberations. The appellants contend that in doing so, the trial judge adopted a perspective that strongly favoured the Crown’s joint enterprise theory and seriously undermined each appellant’s right to have their case considered individually on its own merits and independently of the merits of the case against the other appellant.
Conflation of Multiple Accused into a Single Entity
 Criminal liability is personal. In cases involving more than one accused, the jury must be told that the case for and against each accused must be assessed separately. This instruction is particularly important when the Crown puts forward a joint venture theory of liability and the accused testify and advance very different positions.
 The trial judge made reference to this fundamental principle early in his instructions....
 Unfortunately, the rest of the trial judge’s instructions do not reflect or apply this admonition. When the trial judge turned to the specific elements of the offence of murder and the defences available to the charge, he repeatedly used the phrase “John and/or Mato” when describing potential liability and the potential applicability of the defences. For example, in describing the elements of first degree murder, as applied to both appellants, the trial judge told the jury that they must be satisfied beyond a reasonable doubt that:
- John and/or Mato Josipovic caused the death of Louis Malone;
- John and/or Mato Josipovic caused the death of Louis Malone unlawfully;
- John and/or Mato Josipovic had the state of mind required for murder;
- the murder was not provoked; and
- John and/or Mato Josipovic’s murder of Louis Malone was both planned and deliberate.
 After referring to the elements of the offence, the trial judge said:
If Crown counsel has not satisfied you beyond a reasonable doubt of each of these essential elements, you must find John and/or Mato Josipovic not guilty of first degree murder.
If Crown counsel has satisfied you beyond a reasonable doubt of each of these essential elements, you must find John and/or Mato Josipovic guilty of first degree murder.
 There were literally dozens of references to the phrase “John and/or Mato” in the jury instructions, particularly in respect of the elements of the offence of murder and the defences available. The terminology used by the trial judge was not, in and of itself, misleading or improper. Jury instructions must, however, be evaluated not by reference to the suitability of individual phrases and words, but rather by reference to the overall meaning conveyed, having regard to the context of the evidence and the trial as a whole: see R. v. Pickton, 2010 SCC 32 (CanLII),  2 S.C.R. 198, at para. 10.
 I would not go so far as the appellants would urge and find that the repeated use of the phrase “John and/or Mato” effectively neutered the trial judge’s earlier instruction to the jury that they must consider the case against each appellant separately. I would, however, agree that the repeated use of that formulation gave the instruction a tone which suggested, at least to some extent, that the cases for and against the two brothers stood or fell together.
 In one respect, the trial judge’s reference to “John and Mato” possibly causing Malone’s death was potentially misleading and without foundation in the evidence. Malone died from a single gunshot to the head. There was one shooter and no basis upon which a jury could find that John and Mato, acting together, caused Malone’s death as co-perpetrators: see Pickton, at para. 63 (per LeBel J. concurring). By leaving it open to the jury to conclude that “John and Mato” had caused Malone’s death, the trial judge invited a finding of liability on a basis that had no support in the evidence, and improperly linked the liability of John and Mato together.
 It was essential that the trial judge tell the jury that in addressing the liability of the appellants, and in particular the elements of the crime of murder and the defences, the jury must consider the potential liability of each appellant separately. To properly do so, the trial judge should have told the jury that they should first decide whether the Crown had proved the identity of the shooter beyond a reasonable doubt. If so, the jury should consider the shooter’s liability on the basis of the trial judge’s instructions in respect of individuals who actually commit the crime (s. 21(1)(a)). The jury should have been told to next consider the liability of the non-shooter as an aider or abettor (s. 21(1)(b) and (c)) as the trial judge would explain those terms.
The Law of Individual Criminal Responsibility
 The manner in which the trial judge described the elements of the offence of murder did not make that distinction clear, but instead treated the two appellants as a single entity. In describing the causation requirement for the offence of murder, the trial judge told the jury that it must be satisfied that “John and/or Mato Josipovic caused the death of Louis Malone”. As explained above, the causation requirement has application only to the perpetrator, not to an aider. One can aid in a murder without in any way causing the victim’s death: see R. v. Dooley, 2009 ONCA 910 (CanLII), at paras. 117-24.
 The trial judge’s instruction on the mens rea requirement for murder also failed to draw the distinction between liability as a perpetrator and liability as an aider. The trial judge’s instructions tracked the mens rea requirement in s. 229(a). That requirement applies to the perpetrator. The aider’s mens rea is different. To be guilty of murder, the aider must know that the perpetrator had the requisite intent and the aider must intend to assist the perpetrator in the homicide: see R. v. Zoldi, 2018 ONCA 384 (CanLII), at paras. 21-22; R. v. Briscoe, 2010 SCC 13 (CanLII),  1 S.C.R. 411, at paras. 16-18. The trial judge’s failure to clearly articulate the difference between the mens rea required for a perpetrator and the mens rea required of the aider invited the jury to consider the liability of the appellants together as a single unit.
 The trial judge should also have told the jury that even if they could not identify the shooter beyond a reasonable doubt, there was an alternative basis upon which they could convict either or both appellants. The jury could convict if satisfied beyond a reasonable doubt that either or both appellants had participated in the killing, in the sense that the brother had either shot Malone or aided or abetted his brother in the killing of Malone. If the jury reached that conclusion with respect to either brother, that brother was guilty of murder and it was unnecessary for the jury to decide the exact nature of the brother’s participation in the killing. For example, if the jury accepted the Crown’s theory that the brothers agreed to hunt down and kill Malone, and that he was killed in furtherance of that plan, both were participants in the murder, regardless of who fired the shot: see R. v. Portillo(2003), 2003 CanLII 5709 (ON CA), 176 C.C.C. (3d) 467 (Ont. C.A.), at para. 71; R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), at paras. 152-56.
 The failure to delineate the separate bases for liability when describing the elements of the offence of murder was exacerbated by the trial judge’s treatment of the defences of self-defence and provocation. He left both defences as available to both appellants and did not distinguish between the two appellants when explaining the defences.
 Mato did not advance either the defence of self-defence or provocation. In my view, there was no air of reality to the defence of self-defence as applied to Mato. It is also doubtful that there was any air of reality to the defence of provocation, as applied to Mato. Both defences were in direct contradiction to the defence Mato advanced in his evidence. He contended that he did not participate in the killing and throughout the events which culminated in Malone’s death, he only wanted to go home.
 By assigning John’s defences to Mato as well as John, the trial judge not only undercut Mato’s actual defence, but further linked the fate of both appellants and invited the jurors to reach common verdicts.
 The difficulties created by the improper linking of the defences to both appellants are clear in the trial judge’s explanation of the elements of self-defence. When instructing the jury on the requirement that the conduct of “John and/or Mato” be reasonable in the circumstances, the trial judge said:
The issue is quite simple: was it reasonable for the accused to shoot Lou Malone in response to the alleged threats of force he had made to John and his family during the previous week; and to them both and their families that night on Robins Avenue, just prior to the first shot being fired? Was it reasonable to continue to chase Lou Malone after the first shot was fired and fire four more times before the fatal shot while he lay on the sidewalk?
You also heard the evidence of John and Mato Josipovic that, in their opinion, the police were not an option with Lou Malone; and their evidence that they felt they had no other option but to do what they did, because if they did not stop Lou Malone, he would get them and their family.
 In the first paragraph of the above-quoted passage, the trial judge told the jury to consider the reasonableness of the brothers’ conduct as if the various threats and assaults by Malone had been made to both brothers jointly. He also told them to approach the brothers’ conduct on the basis that they were acting jointly in the chase that led to the fatal shot. The trial judge’s assumption of joint conduct, for the purpose of considering the reasonableness of the appellants’ conduct as an element of the self-defence charge, was consistent with the Crown’s case, but entirely inconsistent with the evidence presented by the appellants.
 In the second paragraph of the above-quoted extract, the trial judge attributed to Mato evidence that he never gave. Mato did not testify that he saw “no other option but to do what they did”. To the contrary, Mato testified that there was a clear option – they could leave. According to him, he urged his brother to leave the area. Once again, the manner in which the trial judge instructed the jury on the elements of the defence of self-defence suggested that both brothers were jointly advancing that defence. They were not.
 In fairness to the trial judge, near the end of his instructions, he fairly and thoroughly set out the individual positions of the appellants. I am not satisfied, however, that his instructions in respect of the defence arguments would overcome the very strong impression created by the rest of his instructions that the appellants stood or fell together on the murder charge.
 The trial judge also presented the appellants as a unit rather than as individuals when explaining the operation of the burden of proof to the evidence of an accused as described in R. v. W.(D.), 1991 CanLII 93 (SCC),  1 S.C.R. 742. The trial judge told the jury:
If you accept the evidence of John and Mato Josipovic in this case, then you must find them not guilty. Even if you do not necessarily accept their evidence, but conclude that it leaves you with a reasonable doubt, you must find them not guilty.Thirdly, even if you reject their evidence, you must still go on and decide whether on the basis of the evidence you do accept, has the Crown proven their guilt beyond a reasonable doubt? [Emphasis added.]
 The trial judge’s instructions on the use the jury could make of the after-the-fact conduct also improperly presented the appellants as a single entity. He referred to the after-the-fact conduct (summarized above, at paras. 33-35) as “things that John and/or Mato are alleged to have done”. The trial judge proceeded to accurately review the evidence and then said:
You may use this evidence, along with all the other evidence in this case, in deciding whether the Crown has proven John and/or Mato Josipovic’s guilt beyond a reasonable doubt. However, you must not infer John and/or Mato Josipovic’s guilt from this evidence unless, when you consider it along with all the other evidence, you are satisfied that it is consistent with their guilt and is inconsistent with any other reasonable conclusion.
 An aider is not necessarily guilty of the same offence as the perpetrator. An aider may not know that the perpetrator intends to commit murder. In that case, the aider is guilty of manslaughter, even if the perpetrator is guilty of murder: see R. v. Jackson, 1993 CanLII 53 (SCC),  4 S.C.R. 573, at pp. 581-83; R. v. Chambers, 2016 ONCA 684 (CanLII), at para. 66.
 The failure to leave manslaughter as a possible verdict with respect to the aider does... add further fuel to the appellants’ claim that the trial judge treated the appellants as a single unit for the purposes of the instructions, and implicitly invited the jury to return the same verdicts with respect to each appellant.
 Considered cumulatively, the errors resulted in a significant disconnect between the manner in which the trial judge presented the case to the jury and the narrative revealed by the evidence. I think there was a very real risk that the jury would approach the liability of the brothers jointly, premised on instructions which focused almost exclusively on the legal liability of the perpetrator and erroneously presented the appellants as potential co-perpetrators.
 I would allow the appeal, quash the convictions and order a new trial for both appellants on the charge of second degree murder.
Her Majesty the Queen v R.B. (ONSC)
[July 18/19] – Sexual Assault/Sexual Interference - Defence of Sexomnia – 2019 ONSC 4236 [Note: Presently available on 2019 CarswellOnt 11564] [M.Z. Charbonneau J.]
AUTHOR’S NOTE: Sexomnia is a form of sleep disturbance during which a person can engage in sexual activity while totally asleep. Expert evidence is clearly a must for any defence lawyer considering using this defence. Lawyers should be on the lookout for the factors described by the experts in this case to see if they fit the allegations against their clients. The end result is a finding of Not Criminally Responsible on Account of Mental Disorder instead of a full acquittal, but indefinite detention does not appear to be a significant risk as the condition is eminently treatable and the results are preventable.
1 R.B. is charged with having (1) sexually assaulted MRB, contrary to s. 271 of the Canadian Criminal Code, (2) touched her for a sexual purpose with his hands while in a position of trust or authority contrary to s. 153(1)(a) of the Canadian Criminal Code and (3) touched her, a person under the age of (16) sixteen, for a sexual purpose with his hands contrary to s. 151 of the Canadian Criminal Code.
2 All three counts relate to one episode of sexual touching during the night of May 30 were in the same bed.
5 Mr. B. does not dispute that he touched MRB for a sexual purpose. His defence is that at the time of the touching he was suffering a medical disorder known as sexsomnia. In other words, he alleges he sexually touched her unconsciously while sleeping. Mr. B. invokes sections 16 and 672.34 of the Canadian Criminal Code and asks the court to find that he committed the criminal acts but is not criminally responsible on account of a mental disorder.
6 Section 16 (3) of the Canadian Criminal Code provides that "The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue". Mr. B. must prove that he was suffering from a mental disorder at the time of the sexual touching on a balance of probabilities.
12 Mr. B. offered the evidence of several witnesses in addition to his own testimony in support of his claim that he was suffering from sexsomnia when he sexually touched his daughter.
13 He testified that his younger half-sister Janice, experienced bouts of sleepwalking and that he had personally witnessed her sleepwalking.
14 He indicated that his wife had told him, before April 30 th , that he would touch her sexually in various ways while sleeping. When she told him about this the next morning he had no memory whatsoever of having engaged in any sexual activity with her.
15 At the relevant time he was having difficulty getting good quality sleep. This only changed in 2017 when he was provided with a CPAP device. Since then he wakes up well rested.
16 He testified that on the evening of May 29 th , 2016, his wife A. MRB and himself watched T.V. after supper. At one point MRB asked permission to have friends over the next week-end. He refused because both him and his wife were working. MRB became upset and kept begging to have her friend over.
17 Later, he brought MRB to bed. He layed down beside her and had some bonding with her and he fell asleep. By bonding he meant talking together about what they each had gone through while separated. He does not remember how long they talked.
18 He indicates that the next thing he remembers is waking up the next morning as usual at around 6 a.m. He made coffee, had a cigarette and woke up S. to get her ready for school.
21 He indicates he has no recollection of anything between the time he fell asleep and woke up in the morning. He does not dispute that the touching occurred, but he has no recollection of touching MRB.
38 Two psychiatrists testified on behalf of the accused, Dr. Paul Federoff and Dr. Elliott Lee. Both are affiliated with the Health Care Group of the Royal Ottawa Hospital.
39 Both medical doctors testified as to the nature and the underlying causes of the sleep disorder known as parasomnia. Both have extensive knowledge on the phenomenon through their research and clinical work. They were both allowed to give their opinion as to whether Mr. B. suffers from the medical disorder known as sexsomnia which is one form of parasomnia.
40 Parasomnia is defined as follows by Dr. Federoff in an article he published in Current Psychiatry Reports on March 21, 2015:
Parasomnias are the sub-category of sleep disorders that involve abnormal movements, behaviors, emotions, and perceptions that occur while falling asleep, during sleep, between sleep stages, or during arousal from sleep . Parasomnias result in dissociated sleep states, and partial or confusional arousals, which occur when the individual is neither in a stage of deep sleep nor in REM sleep, but has not attained full consciousness.
41 In the same article, Dr. Federoff described sexsomnia as follows:
Sexsomnia has been defined primarily as a sleep disorder (parasomnia) that involves any sexual behavior committed while the person is asleep. A variant of sexsomnia includes sexual behavior committed while the person is in a state of confusional arousal (a state of waking from sleep but before conscious R. is restored).
42 Both experts explained that sexsomnia occurs when the individual is in the process of an arousal from deep sleep described as slow wave sleep. Although its existence is well established in the scientific community there is no way of determining its prevalence in the general population as it either occurs with a consenting partner or occurs while the individual is sleeping alone. There is therefore very little reporting of the incident.
43 Dr. Federoff first came in contact with the accused in 2003 when Mr. B. was referred to him. Mr. B. was charged with attempting anal sex with his common law spouse while she was asleep. Mr. B. pleaded guilty to that charge. Dr. Federoff subsequently treated him for several years for anxiety and depression.
44 In 2016, defence counsel referred Mr. B. to Dr. Federoff in order to get his opinion concerning the possible defence of sexsomnia. Dr. Federoff obtained the version of Mr. B. and Mrs. B. on the events of April 30, 2016. Dr. Federoff was also told by Mrs. B. about his actions of sexual behaviour with her while Mr. B. was asleep.
45 Dr. Federoff referred Mr. B. to Dr. Lee in order to subject Mr. B. to a full sleep study. As a result of the sleep study Dr. Lee diagnosed that Mr. B. was suffering from obstructive sleep apnea and sexsomnia.
46 For the sleep apnea, Dr. Lee prescribed treatment with a Continuous Positive Airway Pressure apparatus (CPAP). The treatment was successful.
47 Dr. Elliott describes the event of sexsomnia which occurred during the sleep-study report:
NREM parasomnia, probable sexsomnia
The arousal from slow wave sleep occurred at the termination of a sleep disordered breathing event (suggesting this was the trigger) and appeared to be some kind of masturbatory activity. This likely represents a parasomnia (sexsomnia, giventhe apparent sexual nature of the activity), although a seizure disorder cannot be completely ruled out. These findings will be discussed with the patient at his follow up appointment
48 Both experts testified that in their opinion Mr. B. suffers from sexsomnia based on the following factors which are all consistent with sexsomnia:
- The history of sleep sex events revealed by Mrs. B.
- The fact the 4-second movement occurred during deep (SWS) sleep and was preceded by a sleep disordered breathing suggesting that this was the trigger of the arousal.
- The 4-second movement here was coordinated. Only the left arm moved from the chest area down to the groin area and was followed by a masturbatory type of gesture. It is unusual to see coordinated movement accompanied by a motor activity during sleep.
- The arm movement was occurring while the EEG clearly indicated Mr. B. was asleep thereby eliminating any possibility that the movement was faked to simulate sexual activity.
49 Dr. Lee summarises his diagnoses as follows: "As the particular coordinated motor activity was preceded by deep sleep, disturbed breathing leading to arousal, it is the best evidence to show a potential sexual activity or other unusual motor activity at night and that it is the essence of parasomnia. Although some form of epilepsy can lead to sexual behavior, it is not consistent with the clinical history. The fact that the activity came out of slow wave sleep or deep sleep is very significant."
52 Dr. Federoff is also of the opinion that Mr. B. suffers from the medical disorder sexsomnia. The history provided by the wife indicates behaviour consistent with sexsomnia. In addition, she described snoring and talking that are parasomniac activities. The fact that after the correction of the sleep-apnea by the CPAP there are no more reported incidents of sexsomnia or snoring indicating the difficulty breathing was interfering with Mr. B.'s normal sleep pattern which is the normal trigger to parasomnia.
53 In Dr. Federoff's opinion, the capture of an incident of parasomnia during the sleep study is almost conclusive in itself as it is not often that a sleep study will reveal an incident of parasomnia.
54 The denial of Mr. B. plays no part in his conclusions.
55 Finally, Dr. Federoff is of the view that the risk of Mr. B. re-offending is nil. He now sleeps only with his wife, he has installed hand alarms on his bedroom door and sleeps with the CPAP which has cured his sleep apnea.
Argument and Conclusions
77 I accept the opinion of the experts and find that Mr. B. suffers from the medical disorder sexsomnia. They are leading experts in this field and I find the factual foundation on which rests their diagnosis is solid and follows the scientifically wellknown characteristics of sexsomnia.
90 I accept Mr. B.'s evidence that when he woke up he had no recollection of touching MRB sexually as she describes in her statement.
91 I therefore find that Mr. B. sexually touched MRB as alleged while suffering from the medical disorder of sexsomnia. 92 Mr. B. is found non-criminally responsible on account of a medical disorder.