Endorsement

COURT FILE NO.: 17881/12
DATE: 21120208
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Jean-Guy Beaudet

BEFORE: E.J. Koke J.

COUNSEL:
Counsel, for the Crown, R. Flumerfelt
Counsel, for the Applicant, L. Kinahan

HEARD: February 7, 2012

ENDORSEMENT

[ 1 ] Following a ten day trial, the applicant, Jean-Guy Beaudet was convicted of two charges of sexual exploitation contrary to s. 153 of the Criminal Code and one charge of sexual assault contrary to s. 271 of the Code .

[ 2 ] Judgment was delivered by Justice R.W. Lalande on November 28, 2011. The offences were against a minor, and required a mandatory custodial sentence. On February 6, 2012 Mr. Beaudet was sentenced to a five month custodial term, followed by a two year period of probation.

[ 3 ] Mr. Beaudet has filed a Notice of Appeal and brings this application for bail pending appeal.

[ 4 ] This application is governed by the criteria set out in s. 679(3) of the Criminal Code . The applicant must demonstrate firstly that the appeal is not frivolous, secondly that he will surrender himself into custody in accordance with the terms of any release order, and thirdly that his detention is not necessary in the public interest.

[ 5 ] It is the position of the Crown that the applicant has not met the onus on him to demonstrate that there is some merit to his appeal. The Crown does not contest the other two criteria.

[ 6 ] The applicant sets out four grounds of appeal. After carefully reviewing the very detailed and carefully considered reasons set out in the judgment of the trial judge, I have come to the conclusion that the applicant has not met the onus on him...in other words, I find that the applicant has failed to establish that the grounds in support of his appeal are not frivolous. I have come to this conclusion for the following reasons:

Ground 1 – Failure by trial judge to consider the prejudicial effect of the character evidence.

[ 7 ] The applicant argues that the trial judge erred by failing to consider whether the probative value of the character evidence tendered by the Crown exceeded its prejudicial effect.

[ 8 ] The Crown argues that the applicant was advised by the Crown in advance that if he chose to lead evidence of good character the Crown would introduce evidence of his bad character. Furthermore, the accused did not oppose the admissibility of this character evidence at trial.

[ 9 ] The Crown also points out that it would have been pointless for the applicant to oppose the admission of the evidence on the basis that its prejudicial effect outweighed its probative value. It would have been necessary for the trial judge to hear the evidence in any event in order to determine its admissibility. Furthermore, a trial judge sitting alone, as was the case here, is presumed to be able to properly assess and handle “prejudicial evidence”. [1] In fact, in his reasons, the trial judge confirmed the limits to be put on such evidence with the following words:

The court must remain mindful that impeaching the reliability of the evidence of the accused’s character is the only use to which rebuttal evidence can be put. [2]

[ 10 ] In my view, the trial judge properly considered the use to which the character evidence could be put, and accordingly this ground of appeal is without merit.

Ground 2 - The trial judge misapprehended the evidence of Sergeant Stirling

[ 11 ] The applicant testified that he never reached a location known as Cyprus Falls where some of the assaults are alleged to have occurred. He attempted to lend credence to his testimony by plotting with a pencil and a map, a single plot-point from GPS data which had recorded his location on the date of the alleged assaults.

[ 12 ] Sergeant Stirling was called in reply to this evidence by the Crown. Sergeant Stirling was the applicant’s supervisor with the OPP and he was in charge of the unit which had taught the applicant how to use the GPS. Sergeant Stirling used a computer to map multiple points from GPS data to demonstrate that Mr. Beaudet’s boat had in fact reached Cypress Falls.

[ 13 ] In my view, the trial judge gave very careful consideration to the evidence of Sergeant Stirling in relation to this issue...in fact he devoted almost 2 pages in his ruling to it. He concludes his determination with respect to the weight to be accorded to Sergeant Stirling’s evidence with the following words at paragraphs 92 through 95 of his reasons.

92. Sergeant Stirling in cross-examination was questioned about the age of the map he used, the transfer of data obtained to the Touratech program, whether the co-ordinates were used properly and whether the water level in reference to the shore may have changed. Sergeant Stirling was adamant that the older technology used by Mr. Beaudet was less reliable. He also pointed out that Mr. Beaudet only plotted download point 353 which did not represent the boat’s full path of travel. In his concluding remarks, Sergeant Stirling convincingly stated that the boat on both dates made it to land.

93. The court found Sergeant Stirling’s evidence most impressive. He thoroughly explained in relatively simple terms the method used in plotting the path of travel of the boat using the GPS data, download points and the Touratech program. He dealt with defence counsel’s concerns on several fronts including Mr. Beaudet’s findings, the age of maps used, the transfer of data, the water level and location of the shoreline.

94. In terms of accuracy, Sergeant Stirling was forthright in conceding small variances which, could or would not materially change the comparative locations of the boat on the land on the two separate dates by much more than one meter. Sergeant Stirling was able to use a map with higher definition and make a comparison to exhibit 9 showing the contour of the shoreline. The grounding point, in the court’s view, in his analysis against error, was the plotting of the boat’s approximate same path of travel on both days.

95. Sergeant Stirling’s finding are most dependable and leave little margin for error. The court is satisfied on this most convincing evidence that the boat indeed reached land on August 13 th , 2009 at Cypress Falls.

[ 14 ] With respect to his assessment of the Sergeant Stirling’s evidence, the trial judge based his findings on credibility as well as a determination of Sergeant Stirling’s expertise in the area of GPS tracking devices and GPS plotting. In my view, these findings cannot form the subject matter of a successful appeal in the circumstances of this case.

[ 15 ] The applicant also argues that if Sergeant Stirling’s evidence is accepted, then the applicant would not have had sufficient time to engage in the alleged wrongful acts. The trial judge made a finding of fact with respect to the issue of whether these acts occurred and he chose to accept the evidence of the complainant. I find that the applicant has not established that there is merit to this ground of his appeal.

Ground 3 - The trial judge did not properly consider DNA contamination

[ 16 ] The evidence relied on by the trial judge included the presence of DNA linked to the applicant which was found on the complainant’s bra. The bra was seized by the police a day after the alleged sexual contact with the applicant.

[ 17 ] The applicant argues that the trial judge erred by failing to meaningfully consider the possibility of contamination or transference of DNA, and treated issues pertaining to the DNA only as credibility issues by concluding that there was no clandestine reason for the complainant not to turn over all of her clothing at the same time.

[ 18 ] A review of the reasons for judgment reveals that the judge gave careful consideration to the issues of contamination. Basing his conclusions on expert evidence from the centre for Forensic Sciences he stated at paragraphs 69 through 72 of his judgment:

69. Ms. Sharpe gave the opinion that saliva can be transferred by kissing, that saliva is subject to gravity and could, if wet, and there was contact, have transferred to the bra cup.

70. In response to whether saliva could have been transferred from the string bracelet that Ms. Guertin was wearing, Ms. Sharpe said that on such a secondary transfer much would depend on time and the degree of pressure involved. In referring to the 6 cm by 6 cm stain on the inside of the bra cup she said that she would not expect that a string bracelet would give that size of a stain. Moreover, if the string bracelet were wet and made contact or rubbed against the bra when being worn, a secondary transfer would be expected to be on the outside of the bra only.

71. Ms. Sharpe also indicated that if the mouth were applied to the breast area or breast and saliva was placed there, this could result in a secondary transfer to the bra, if the bra came into contact with that area.

72. Ms. Sharpe also clearly indicated that the samples on the inside and outside of the bra were two different stain samples not caused by seepage. She also agreed that if Ms. Guertin’s inner t-shirt had saliva on it and was worn while still wet, a transfer could have occurred to the bra. The t-shirt was not examined.

[ 19 ] Later, at paragraphs 110 through 113 the trial judge revisited the issues of contamination of the bra, stating :

110. It was suggested to the forensic scientist, Kimberly Sharpe that because the bra, cloth bracelet and other clothing may have been left in a pile, secondary transfer could have occurred to the bra from the bracelet or perhaps Ms. Guertin’s t-shirt.

111. As already indicated, Ms. Sharpe responded by saying that such a secondary transfer would much depend on time and the degree of pressure involved. More particularly, in referring to the 6 cm by 6 cm stain on the inside of the bra cup, she said that she would not expect that a string bracelet would give that size of a stain. Moreover, if a secondary transfer did occur, it would be expected to on the outside of the bra only. The gist of Ms. Sharpe’s evidence was that if the mouth were applied to the breast area or breast and saliva was placed there, this could result in a secondary transfer to the bra. She also testified that saliva is subject to gravity, meaning that it could drip down to the bra. Ms. Sharpe was not able to lend much credence to suggestions that a secondary transfer may have occurred from the cloth bracelet.

112. The court is satisfied that it is very unlikely that contact with the string bracelet would cause the size of stain as seen on the inside of the bra cup. Moreover, there are discrepancies in the evidence about when during the day Mr. Beaudet’s saliva was placed on the cloth bracelet. According to Ms. Guertin, he placed the cloth bracelet in his mouth around the time he was on the computer, namely in the morning of August 13 th , 2009. If his saliva were placed on the cloth bracelet later during the day then, of course, it may be assumed there existed a possibility that the cloth bracelet, if it remained wet enough and there was enough pressure and time, could have caused a secondary transfer while in the pile with other clothing and the bra.

113. I am satisfied from Ms. Sharpe’s evidence that there is more than a strong unlikelihood that a secondary transfer ever occurred between the cloth bracelet and the bra. Firstly and according to Ms. Sharpe, the cloth bracelet would not have caused a stain as large as six centimetres and by six centimetres. Secondly, the bra was stained both inside and outside. These stains were found to be separate stains.

[ 20 ] In light of the comprehensive reasons given by the trial judge it is my view that it would be frivolous to base an appeal on the alleged failure of the trial judge to give meaningful consideration to contamination or transference issues related to this DNA.

Ground 4 – The trial judge erred by relying on a transcript of a police statement made by the complainant instead of the audio portion

[ 21 ] The applicant argues that the trial judge improperly used a transcript version of an audio portion of a videotaped statement when he was unable to make out the audio portion.

[ 22 ] The Crown argues that the transcript in question was an independent transcript prepared by and provided to the Court by the applicant. Furthermore, there was no objection to the use of this transcript at trial, and the evidence for which it was used, namely to corroborate the fact that the complainant had been kissed on the neck, was not evidence which was in issue.

[ 23 ] In the circumstances, I find that this ground too is without merit.

Conclusion

[ 24 ] The basis of the applicant’s appeal pertains to findings of fact and credibility by the trial judge. I appreciate that the applicant disagrees with some of these findings but this is not sufficient to establish that the applicant’s appeal has merit. It is incumbent on the applicant to demonstrate that his appeal is not frivolous, and for the reasons stated, I find that he has failed to do so.

[ 25 ] Accordingly, I am dismissing the applicant’s application for bail pending appeal, without prejudice to the applicant bringing a further application on different material.

[ 26 ] The appellant is therefore to be remanded in custody until completion of his term, or pending further order of the court.

E.J. Koke J.

Date: February 8, 2012

[1] R. v. Sutherland (2001), 2001 8545 (ON CA) , 156 C.C.C. (3d) 264 (Ont. C.A.) , @ para. 19;
R. v. L.W., 2004 33349 (ON CA) , [2004] O.J. No. 4163 (Ont. C.A.) , @ para. 9.

[2] Reasons for Judgment – R. v. Beaudet: para. 84.