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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Vassell, 2016 ONCA 785

DATE: 20161027

DOCKET: C59014

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ferdinand McLaughlin Vassell

Appellant

Counsel:

Ferdinand McLaughlin Vassell, acting in person

Brian Snell, appearing as duty counsel

Susan Magotiaux, for the respondent

Heard: October 6, 2016

On appeal from the conviction entered on May 5, 2008 and the sentence imposed on July 6, 2011 by Justice Thomas P. Cleary of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of sexual assault. The trial judge subsequently declared him to be a dangerous offender and sentenced him to indeterminate detention under s. 753(4) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The appellant appeals his conviction for sexual assault. While the notice of appeal included a sentence appeal, it was not pursued. If the conviction appeal is successful, then the sentence would fall.

[3] In procedural terms, the appellant was convicted on May 5, 2008 and sentenced on July 6, 2011. Between the conviction and sentencing dates, he was tried, convicted and sentenced on other charges by Justice Antonio Di Zio, which led to the companion appeal (C59054).

[4] The appellant argues the reasons of the trial judge are insufficient to justify conviction, citing R. v. Wigle, 2009 ONCA 604, 252 O.A.C. 209. To pass muster, the reasons must "advance the accused's understanding of the reasons for his conviction" and "facilitate meaningful appellate review of the correctness of the decision": R. v. Brown (2002), 2002 CanLII 41599 (ON CA), 61 O.R. (3d) 619 (C.A.), at para. 26. As the Supreme Court noted in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para 11: "Credibility determinations by a trial judge attract a high degree of deference." Further, the Court noted the importance of a contextual approach, at para. 12:

Ultimately, appellate courts considering the sufficiency of reasons "should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered": [R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3], at para. 16. These purposes "are fulfilled if the reasons, read in context, show why the judge decided as he or she did" (para. 17).

[5] The key issues in the case were the complainant's credibility and the presence or absence of consent.

[6] The trial judge, in about 30 pages of reasons, noted points at which the complainant's evidence about the events over the course of the evening was corroborated by other evidence. The assault itself was not corroborated, which is not unusual.

[7] The trial judge's reasons record the following evidence. The complainant, K.M., testified she was sexually assaulted on January 13, 2007 in the front seat of the appellant's car in the parking lot of a McDonald's restaurant.

[8] The complainant's evidence was that after the assault in the McDonald's parking lot, the appellant drove her to a Coffee Time restaurant. She used the washroom and then sat with the appellant in the restaurant for about 13 minutes, according to the restaurant video. Two Coffee Time employees described her distraught state.

[9] The appellant told the complainant he would drive her home, so she returned to his car. When she was back in his car, the appellant told her to remove her pants. She immediately got out of the car without her shoes or a jacket. Her actions in leaving the appellant's car and crossing the street to an Esso service station were captured by video. She called the police from there. They found her distraught and shoeless in the service station kiosk, in the middle of winter.

[10] The appellant did not testify. Counsel argues that the actions of the complainant in sitting with the appellant in the Coffee Time restaurant is enough to raise a reasonable doubt about the complainant's consent to sexual intercourse.

[11] As the trial judge observed, the complainant's mental and physical state and her state of dress in winter weather, were all inconsistent with any such consent. The trial judge noted:

[I am] satisfied beyond a reasonable doubt that there was proved a lack of consent for the physical action of intercourse that took place. As I said before, that does not end the inquiry, but I want to indicate the reason is I accept her evidence that she said no, that she tried to push him away, that she made some comments about "why you're doing this to me? What if you had a daughter", which from a reasonable man's point of view would clearly be indicating non-consent.

[12] He added:

[I have] reviewed the evidence of the complainant that I accepted to arrive at the decision that she – it has been shown beyond a reasonable doubt she was not consenting, and considered the circumstances that I had before me, keeping in mind that I can only make true inferences on the basis of a reasonable view of facts proven.

[13] Considering the reasons as a whole, and the context of unfolding events, it is clear that the trial judge accepted the complainant's evidence that she was forced into sexual intercourse. There was no contrary evidence.

[14] The record is sufficient to allow the appellant to understand why he was convicted and to permit meaningful appellate review. We would therefore not give effect to the argument that the trial judge's reasons are insufficient.

[15] The appeal is dismissed.

"J.C. MacPherson J.A."

"Gloria Epstein J.A."

"P. Lauwers J.A."