WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this hearing has been issued under subsection 486.4(1) of the Criminal Code.

Court Information

Ontario Court of Justice

Date: 2016-09-25

Court File No.: BARRIE 15-05011

Between:

Her Majesty the Queen

— AND —

Shayne Lund

Dangerous Offender Application – Gardiner Hearing

Before: Justice Joseph F. Kenkel

Heard on: June 2, 3, 7, 9, 2016

Ruling: September 15, 2016

Reasons Released: September 25, 2016

Counsel:

• Mr. Indy Kandola — counsel for the Crown
• Mr. Eginhart Ehlers — counsel for Shayne Lund

KENKEL J.:

Introduction

[1] Mr. Lund pleaded guilty to 34 charges involving numerous sexual offences against adolescent girls, children and animals. He admitted the facts of those offences in an Agreed Statement of Fact. In this application the Crown seeks to prove further discreditable conduct they submit is relevant to their application to have the accused declared a Dangerous Offender. These further allegations predate the existing charges and were previously charged as offences under the Youth Criminal Justice Act SC 2002 c1 (YCJA). Once the accused had been found guilty of the adult charges the Crown stayed the YCJA matters and proceeded with this application to prove the contested facts.

[2] The evidence in this application involves historical allegations that pre-date the charges before the court and certain aggravating facts related to the present adult charges that were not agreed upon.

The Crown Position

[3] The Crown submits that the testimony of the complainants was shown to be credible and reliable. Their evidence was not contradicted by other evidence and the Crown submits that the court should accept their testimony. While the Crown submits that the witnesses should be found credible on their own evidence, the Crown also notes that specific circumstances repeated in the evidence of each of the witnesses show similar facts relevant to the credibility of their accounts.

The Defence Position

[4] The defendant submits that the Crown has not shown the complainants' evidence to be trustworthy or reliable and has not proved the further allegations beyond a reasonable doubt. The defence submits that no "similar fact" inferences should be drawn from the evidence.

The Burden of Proof

[5] Dangerous offender proceedings are sentencing proceedings where all credible and trustworthy evidence is admissible. Criminal Code s.723. Even in this context, the Crown must prove contested aggravating facts beyond a reasonable doubt. R v Gardiner, [1982] SCJ No 71. Both parties agree that standard should apply to these disputed facts which are being tendered to inform a Dangerous Offender assessment and may, if proved, result in increased liability to a designation under Part XXIV of the Criminal Code.

The Evidence Heard

[6] The Crown called 4 complainant witnesses:

• M.G.
• M.V.
• A.T.
• B.Y.

[7] In addition, we heard from M.V.'s grandmother and a support worker for M.V., the latter on a discrete issue.

[8] The Crown's evidence on this application also includes:

• The Agreed Statement of Fact with exhibits as relevant to certain disputed facts and to the Crown's similar fact application.
• Electronic texts, photos and messages among Lund, AT and others in which Lund's relationships with women are recorded in detail, and where Lund provides very detailed accounts of his sexual interests and activities related to facts disputed in this application.
• Statements made by the accused during the Assessment with Dr. Woodside which the Crown submits are inconsistent with the facts admitted on the guilty plea and require a further finding in this application.

[9] The defence did not call evidence.

[10] The Crown seeks to prove the following contested facts:

1. That the accused was present during the nude photographing of 5 year old MP.
2. That the accused placed his penis in MP's mouth.
3. That the accused digitally penetrated 4 year old LM.
4. That the accused placed his penis in LM's mouth.
5. That the accused grabbed the buttocks of 12 year old MT.
6. That the accused sexually assaulted 12 year old MV 4 times.
7. That the accused forced anal intercourse upon 14 year old BY.
8. That the accused assaulted BY by choking and grabbing her arms.
9. That the accused sexually assaulted 15 year old MG.
10. That the accused sexually assaulted 15 year old AT.
11. That the accused assaulted AT by choking.
12. That the accused attempted to penetrate MP with his fingers and/or his penis while swimming at a park.

The Evidence of AT

[11] AT met Lund when she was in grade 10. He was older but was in one of her classes and he sat next to her. They started texting and then spent time together. After 5 months they became intimate although she knew he was seeing other girls as well. She described their relationship as, "friends with benefits". AT hoped it would progress to an exclusive relationship.

[12] She continued her relationship with him but they argued over his seeing other girls. By grade 12 she confronted him about sleeping with other girls and he responded physically, pushing or hitting her and on one occasion pinning her down on the floor and choking her.

[13] The first time Lund had sex with AT they ended up in a tent together at a party. She told him she hadn't had sex with anyone when he asked. She said no when his advances moved passed kissing but he persisted despite her protests. AT continued a relationship with Lund past that incident. She explained that she was young and desperate for his attention.

[14] Years later Lund asked AT to help him gain access to a young girl. Lund wanted to engage in sexual activity with a child. AT arranged to babysit her best friend's niece. She brought the child to the house she was sharing with a friend and Lund came over. Lund asked for sexual pictures of MP so AT took photos of her while she used the bathroom. The evidence as a whole shows Lund was nearby but not directly present at that time.

[15] They then played a "taste testing game" where MP was blindfolded and asked to guess different tastes. The purpose of the game was to enable Lund to engage in sexual activity with the child. He put a fruit flavoured condom on his penis and held it to the mouth of MP making contact.

[16] Another time AT took the same child swimming at a park so he could gain access to her for sex. While in the water Lund put the child in between AT and himself then attempted to penetrate the child's vagina with his finger or penis. He told AT he tried to make a video but that didn't work. The child yelled out when Lund tried to penetrate her.

[17] AT later apologized to Lund saying she was sorry she didn't know the child, "was a screamer". The scream brought attention to Lund in a public area and that stopped him that day. AT said in their texts that she knew that would frustrate him and he confirmed he was intent on having sex with children.

[18] While Mr. Lund was visiting another friend, he told AT he was trying to get the friend to leave him alone with her little daughter LM. He said he planned to have sex with that child who at 4 was a year younger than MP. He sent AT photos he'd taken of the girl's underwear drawer and photos of his hand by her underwear and by her vagina while she slept. Lund told AT he'd "fingered" the child which meant that he'd inserted his finger into her vagina.

[19] In cross-examination AT agreed that she'd lived with Lund for a time after high school. She agreed she was jealous that Lund had sex with others throughout their relationship and she always hoped to persuade him to have an exclusive relationship with her by accommodating his sexual interests. She agreed with the suggestion that after one incident where he'd hit her he said he would go to the police station and turn himself in. She explained that she felt this flipped the responsibility of the assault onto her and she felt badly and told him not to turn himself in.

[20] When asked about the first time she had sex with Lund, AT agreed that she was sleeping in the same tent with him and consented to kissing and some foreplay. She didn't want to have intercourse and made that plain to him by saying no. She disagreed that she consented to having intercourse that night.

[21] AT confirmed that during the "tasting game" Lund's condom covered penis touched the child's mouth but was not put into her mouth. The contact was brief, a few seconds. At the park AT did not see Lund's underwater attempt to penetrate MP as she was looking away to distract from his interaction with the girl. AT agreed the incident in the water was brief.

[22] I approach the evidence of AT with caution. She pled guilty and was found to be a Long Term Offender for her involvement in offences with Mr. Lund. While she plainly received no consideration on sentence from the Crown for her potential testimony in this case, the fact of her convictions, the circumstances of those offences including dishonesty and the possibility of an animus towards Mr. Lund all cause me to approach her evidence with care.

[23] AT testified in a straightforward manner both in examination-in-chief and cross-examination. Her evidence was consistent with credible external evidence such as the detailed and candid text messages exchanged between AT and Lund.

[24] AT's account of Lund forcing sex without consent is credible given her age at the time and the circumstances of their relationship to that point. She reasonably explained that contact to that point was consensual but she drew a firm line at intercourse by saying no. There was no sign of exaggeration in her account and she went on to describe a consensual relationship with Lund for years afterwards. She explained her choice to continue that relationship despite the sexual assault by noting her age at the time, her complete lack of self-confidence, her desperation for his approval and Lund's manipulation. These themes appear throughout their relationship in their many text conversations.

[25] AT's evidence about Lund's assaults upon her and choking was credible given the circumstances of their relationship. Her evidence is consistent with the control and manipulation shown by Lund in the text messages. AT's evidence was not challenged on these points.

[26] AT's evidence about the incident in the lake is confirmed by detailed messages between Lund and AT that were exchanged after the incident. Her account is also consistent with MP's screaming reaction as described in their texts.

[27] AT confirmed that Lund's penis touched MP's mouth while the child was blindfolded. Her evidence is consistent with the accused's actions, consistent with the purpose of the game and the use of the flavoured condom, and consistent with text messages between the two afterwards. Her evidence is not contradicted by any other credible evidence.

[28] AT's evidence regarding Lund's digital penetration of LM is confirmed by his own detailed messages describing the sexual assault afterwards. AT could not say though whether Lund put his penis in that child's mouth.

[29] I find that the Crown has proved AT's evidence is credible beyond a reasonable doubt. Considering her credible testimony and the whole of the evidence I find that the Crown has proved the numbered facts 2, 3, 10, 11, 12 set out in paragraph 10 above to that standard. AT's evidence leaves a reasonable doubt as to fact 1. AT's evidence does not assist the Crown on fact 4. There's some evidence in the texts that supports the Crown's allegation on point 4 but I find a reasonable doubt remains.

The Evidence Relating to MV

[30] The evidence of MV was the most problematic for the Crown. In examination-in-chief the now 23 year old explained that she met Lund when she was 12. He was two grades ahead in school. The first time she was alone with Lund he took her for a drive on a 4 wheel off-road vehicle to the back of her grandparent's property. He said he wanted to show her something there but when they arrived he grabbed her hands, threw her to the ground, took off her pants and raped her. Later MV told her grandmother but neither her grandmother nor her family reported the matter to police. Afterwards over three years MV continued a relationship with Lund and she said there were three more times that Lund forced himself upon her. Their relationship ended when they were involved in a car accident where she was injured. A civil suit was filed against Lund who had been the driver.

[31] MV ran off the witness stand and left the courtroom at the very beginning of cross-examination. On the next day she returned and responded to cross-examination, but her demeanor was different from her factual manner when the Crown was asking questions. She was asked about the first incident in detail as well as other events but after half a day of cross-examination she was unable to continue. A few days later cross-examination continued. Counsel for the defence spent the morning reviewing MV's initial statement to the police where she described much of the contact with Lund as consensual in phrases such as, "obviously that was consensual". She explained her second statement to the police which contradicted much of what she said in her first was simply to clarify "little details". After lunch MV was again asked in detail about the first incident when she was 12. When the defence moved on to cross-examine further about her ongoing relationship with Lund she ran out of the courtroom and refused to return. Cross-examination to that point was gentle and respectful and questioning was focused on a non-contentious area when she left.

[32] MV was twice cross-examined in detail about the initial incident. Her evidence was internally consistent on that point and consistent with her original statement to police in 2013 where the video shows she was calm and relaxed in contrast to her presentation in court during cross-examination. Most importantly, her evidence about the initial incident was supported by the credible evidence of her grandmother. While the fact that her grandmother did not report the incident to police is troubling, the explanation for that was credible in context.

[33] I find that the Crown has proved fact 6 beyond a reasonable doubt only in relation to the first incident. With respect to the 3 further alleged sexual assaults, MV's evidence was significantly different from her initial complaint to police and the differences were not reasonably explained. The defence was not able to complete cross-examination in relation to these counts and for those two reasons I find I'm unable to place any weight on that portion of MV's evidence.

The Evidence of BY

[34] BY is now 23 years old. She met Lund when she was 14 just as she started high school. He followed her constantly at school and they eventually started dating. Lund became very possessive and made sure they were together constantly. He questioned her if she didn't answer one of his calls quickly. Their relationship was sexual from the moment they started dating. He tried to encourage her to involve other females. She agreed to do that twice just so that Lund would involve her and not just have sex with them anyway. She was aware he was having sex with many other women throughout their relationship.

[35] At times Lund grabbed her forcibly if she tried to walk away when they disagreed. One time when she was staying at his house they argued and she tried to leave but he pushed her down and choked her to the point of blacking out. He apologized to her. There were marks left on her neck.

[36] Another time during her relationship with Lund she stayed the night and they were having consensual intercourse in his room. He tried to force her to have anal sex. She said no, no, no and he eventually stopped but not before penetrating her anally. He apologized later and did not do that again. MG didn't report that to the police as he was 16 and she didn't want to ruin his life. She did cut off all contact with him even though she still thought she loved him. She later went back to him for a brief time but then returned to her current boyfriend.

[37] Cross-examination showed that the complainant's evidence of forced anal sex was consistent with her original 2013 statement to the police but more details emerged in this hearing. Her answers showed she still remembered the incident in detail despite the 5 year gap from the incident to her complaint in 2013.

[38] BY gave detailed responses to the questions posed by both lawyers. Her evidence was internally consistent on the essential points and further minor details now remembered were reasonably explained. Her testimony was not contradicted by other evidence or circumstance. Lund's admission to AT that he hit BY supports her testimony although Lund told AT it was accidental. Her evidence makes it plain that there is no basis for the suggestion made by defence counsel that her protests during anal sex could have been mistaken by the defendant for sexual utterances consistent with consent. Repeating no several times is very clear, particularly where they'd never engaged in that activity before. The accused's apology to BY afterwards where he tried to convince her he thought she was saying "oh oh oh" in a positive way was self-serving, manipulative and incredible. I find that BY was a credible and reliable witness and I accept her evidence. I find that the Crown has proved facts 7 and 8 beyond a reasonable doubt.

The Evidence of MG

[39] MG has finished a university Arts degree and is currently in a Bachelor of Education program. She met Lund when she was 14 and Lund was 17. Lund's sister played for the same volleyball team. She became involved in a relationship with Lund that was entirely focused on his sexual interests. He was controlling and would become angry with her if she didn't want to have sex. He didn't allow her to show attention to other boys but he was seeing several other girls throughout their relationship. He repeatedly told her that if she didn't give him what he wanted she couldn't be with him.

[40] Their sexual relationship was consensual in that context except for one time when Lund told MG that he had something to show her behind a school. There was snow on the ground but Lund forced MG onto the ground, got her pants off and proceeded to have intercourse with her despite her saying no. Eventually MG stopped resisting as she realized it wasn't stopping him and he'd also told her he likes it when girls say no and try to squirm away.

[41] That ended their relationship for a while but later MG went back to Lund as she didn't have anyone else, she missed his attention and she thought that she could change him. On Canada Day in 2013 he tried to put his hands down her pants despite her telling him no. She was older and more confident by then and she broke off all contact with Lund after that.

[42] In cross-examination, MG agreed that Lund told her he likes it when girls resist him and try to squirm away. She denied that she was role-playing when he forced sex upon her outside behind a school.

[43] MG's evidence was detailed and consistent both in examination-in-chief and cross-examination. There had been no rape "role playing" prior in their relationship and Mr. Lund could not possibly have thought that was happening when he forced himself upon MG behind the school, in the snow, despite her repeatedly saying no. Her choice to continue a friendship with Lund afterwards was unfortunate but well explained in her evidence. Her evidence was not contradicted by any other evidence or circumstance. I find MG was a credible witness. The Crown has proved fact 9 beyond a reasonable doubt.

The Evidence Relating to MT

[44] The agreed statement of fact includes an admission that the accused grabbed the child MT's buttocks over her bathing suit. The Crown seeks to prove that his hand was under the suit. In text messages to MT's sister Lund makes it very plain what he did. He moved her bathing suit aside and slid his hand underneath. He said he was thrilled to finally "get a feel". His admissions are credible given his strong sexual interest in the child MT and the fact that all of his contact with her was for a sexual purpose. Fact 5 has been proved beyond a reasonable doubt.

Similar Fact Evidence

[45] Similar fact evidence is presumptively inadmissible. The burden is upon the Crown to show on a balance of probabilities that the probative value of the evidence outweighs its prejudicial effect. R v Perrier 2004 SCC 56, [2004] SCJ No 54 at para 17. Mere propensity reasoning is prohibited.

[46] The Crown submits that similar fact evidence inferences are available and relevant to the following specific issues related to the credibility of the complainants' evidence:

• To explain the complainants' conduct including their failure to report the alleged sexual assaults and their continuing relationships with the accused as challenged in cross-examination
• To show that the accused has repeatedly persisted in sexual conduct despite lack of consent and resistance contrary to the assertions of consent in cross-examination
• To support the credibility of the complainants especially MV and MG by showing a close identity of circumstances between the incidents including remote location, the lure used to get the girls there, the ages of the complainants, the manner of the assault and the fact that intercourse was forced without consent

[47] While I've found the complainants' evidence credible without reference to similar fact inferences, considering the consistency in the accused's conduct, the similar reactions among the complainants, the events occurring fairly close in time involving girls of similar ages, and the absence of evidence of collusion, I agree with the Crown that they have proved that similar fact inferences might also properly be drawn to rebut some of the central assertions made in cross-examination and to support the credibility of the complainant witnesses.

Conclusion

[48] The findings of fact above may be summarized as follows:

1. Present during the nude photographing of MP – Not Proved
2. Penis in MP's mouth – Proved
3. Digitally penetrated LM – Proved
4. Placed his penis in LM's mouth – Not Proved
5. Grabbed the buttocks of MT – Proved
6. Sexual assault on MV 4 times – First Only Proved
7. Forced Anal Intercourse on BY – Proved
8. Assaulted and Choked BY – Proved
9. Sexually assaulted MG – Proved
10. Sexually assaulted AT – Proved
11. Assaulted AT by choking – Proved
12. Attempted penetration of MP while swimming – Proved

[49] The Dangerous Offender application will include the facts that have been proved beyond a reasonable doubt in this application.

Ruling: September 15, 2016

Reasons Released: September 25, 2016

Signed: Justice Joseph F. Kenkel