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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
CITATION: R. v. Bergen, 2011 ONCA 210
DATE: 20110316
DOCKET: C50610
COURT OF APPEAL FOR ONTARIO
Simmons, Rouleau and Karakatsanis JJ.A.
BETWEEN:
Her Majesty The Queen
Respondent
and
Mark Bergen
Appellant
Diana Lumba, for the appellant
Susan Magotiaux, for the respondent
Heard and released orally: March 11, 2011
On appeal from convictions entered by Justice James Ramsay of the Superior Court of Justice on October 21, 2008 and from the sentence imposed on November 21, 2008.
ENDORSEMENT
[1] The appellant appeals from convictions for two counts of sexual assault involving two different complainants, S.P. and J.P. The appellant was tried by Ramsay J., sitting alone. The trial judge dismissed a charge of assault causing bodily harm involving J.P.
The S.P. Conviction Appeal
[2] In December 2005, the appellant was a 50 year-old licensed social worker working in an adolescent mental health unit at the Grand River Hospital. The complainant, S.P. was an 18 year-old patient. She was admitted to the unit for anxiety, depression, taking overdoses, cutting herself and issues involving prior experience of sexual abuse.
[3] The appellant was assigned as S.P.’s social worker but developed a romantic and then sexual relationship with her. While the appellant maintained that the sexual relationship was consensual, the Crown asserted that any consent that was given was vitiated under s. 265(3) or s. 273.1(2) of the Criminal Code.
[4] The trial judge concluded that consent was vitiated under s. 273.1(2) of the Criminal Code. He found that the appellant was in a position of trust, that he abused that trust, and that the complainant was induced to engage in sexual activity by the appellant’s abuse of trust.
[5] The appellant raises three issues on his appeal against the conviction relating to S.P.
[6] First, the appellant asserts that the trial judge erred by failed to turn his mind to S.P’s subjective state of mind in relation to consent and, if he did, his finding on that issue was unreasonable.
[7] We disagree. The trial judge turned his mind specifically to the question of whether the complainant was induced to engage in sexual activity by the appellant’s abuse of his position. Relying on several aspects of the evidence adduced at trial, including the evidence of an expert who testified about the nature of a therapist-patient relationship, the trial judge concluded that the complainant was in fact induced by the appellant’s abuse of his position as her therapist. In our view, this finding was amply supported by the evidence, including evidence concerning how the relationship progressed and the complainant’s own testimony about the appellant and the nature of their relationship.
[8] Second, the appellant claims that the trial judge erred in relying on the evidence that S.P.’s parents trusted the appellant and that he deceived them as constituting evidence that the appellant induced the complainant to engage in sexual activity by abusing his position. We do not accept this submission. The trial judge referred to the appellant deceiving the complainant’s parents as evidence of the appellant’s manipulative conduct. That was but one aspect of the evidence that permitted the trial judge to assess the extent of the appellant’s controlling behaviour and to draw inferences about its impact.
[9] Third, the appellant argues that the trial judge’s interventions compromised the fairness of the trial. We do not accept this submission. We agree some of the trial judge’s comments were unfortunate and should have been avoided. However, assessing the record as a whole, we are not satisfied that they raise a concern that the trial judge prejudged the evidence, nor do we accept that they deprived the appellant of a fair opportunity to present his case.
The J.P. Conviction Appeal
[10] This charge arose out of an incident that allegedly occurred at the appellant’s home when J.P., a neighbour and former patient, visited the appellant to provide support to the appellant following S.P.’s termination of their relationship.
[11] The appellant raises three grounds on the conviction appeal relating to J.P. The first is the issue of interventions by the trial judge. We have already disposed of that ground of appeal.
[12] Second, the appellant argues that the trial judge made improper use of a prior consistent statement made by J.P. when she confronted the appellant on the day after the alleged assault. We do not accept this submission. In our view, the trial judge’s reference to the consistency of this statement was merely a response to a defence attack on the improbability of J.P. returning to the appellant’s home. We are not satisfied that the trial judge used this evidence to improperly bolster J.P.’s credibility.
[13] Finally, the appellant argued that the trial engaged in speculation to fill gaps in J.P.’s evidence. On our reading of the trial judge’s reasons, he did not do so.
[14] The appeals are therefore dismissed.
Signed: “Janet Simmons J.A.”
“Paul Rouleau J.A.”
“Karakatsanis J.A.”