ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SHAWN VANDOOREN
Appellant
A. Rajna, for the Crown
F. Miller, for the Defendant/Appellant
HEARD: December 11, 2015
Heeney R.s.j.:
Introduction
1This is an appeal of the convictions entered by Graham J. in the Ontario Court of Justice on June 16, 2014 on two counts of sexual assault contrary to s. 271 of the Criminal Code.
2In a nutshell, the complainant had hired the accused to do renovations at her home. While the work was progressing, the accused made sexual overtures to the victim, which included grabbing her breasts from behind on one occasion, and touching her vaginal area with his hand on the second occasion.
3The accused advances two grounds of appeal. First, he alleges that the trial judge used different standards in assessing the evidence and the credibility of the complainant and the accused. Second, he alleges that the trial judge misapprehended the evidence.
First Ground of Appeal: Standards of Scrutiny
4For reasons which will become obvious, it is not necessary to spend a great deal of time considering the first ground.
5The argument that a trial judge applied a different standard of scrutiny in assessing the evidence of the defendant compared to the complainant is one that is difficult to make and is rarely successful. As Laskin J.A. said in R. v. Aird, 2013 ONCA 447 at para. 39:
The "different standards of scrutiny" argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge's credibility determinations. Thus, as Doherty J.A. said in R. v. J.H. (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59: "[t]o succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant."
6In my view, there is another very good reason why this argument should rarely succeed: it is almost tantamount to an allegation of bias, since it alleges that the trial judge exercised favouritism toward the Crown and against the accused in the manner in which he assessed the evidence and made findings of credibility. There is, of course, a strong presumption against judicial bias: see Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259.
7Despite this, allegations of differential standards of scrutiny have, regrettably, become boilerplate grounds of appeal in many notices of appeal in recent times.
8In this appeal, this ground is patently devoid of merit. The trial judge did precisely what he is expected to do: thoroughly examine the evidence to determine whether the Crown has proven its case. If, as is the case here, that involves spending more time analyzing the evidence of the accused than that of the complainant, that does not mean that a differential standard is being applied. It simply means that the evidence of the accused demanded closer scrutiny. To put it in simple terms, if it seems that the trial judge spent a lot more time talking about the evidence of the accused, it was because there was a lot more to talk about.
Second Ground of Appeal: Misapprehension of the Evidence
9The second ground of appeal is that the trial judge misapprehended the evidence.
10Once again, it is not necessary to discuss in any detail the areas of the evidence identified in the Appellant’s Factum and in argument where the trial judge is alleged to have misconstrued the evidence. Four areas of the evidence were referred to: the trial judge’s finding that the accused was uncertain and hesitant in his account of the events of January 22; the finding that the accused was evasive about his girlfriend and her status in his life; the finding that the accused was repeatedly prompted by his counsel; and, the finding that the complainant did not contradict herself.
11Without going into detail, I am satisfied that each of these findings was open to the trial judge to make on the evidence before him. I find no palpable and overriding error in these findings of fact.
12However, a significant misapprehension of the evidence became apparent as the result of questioning from the bench during the course of argument on this appeal.
13Sexual assault consists of four elements, each of which must be proven beyond a reasonable doubt in order to secure a conviction: there must be the intentional application of force by the accused to the body of the complainant; the force must be sexual in nature; the complainant must not consent to the application of force; and, the accused must know that the complainant was not consenting.
14In this case, there is no question that there was the intentional application of force by the accused to the complainant that was sexual in nature. Thus, the first and second elements were proven. The fourth element appeared to be the focus of the evidence and the argument at trial, and the bulk of the trial judge’s reasons were devoted to this issue. I find no fault with his analysis or his conclusions on this issue. He stated this, at p. 127 of the transcript:
He [the accused] never stated that she ever said yes. He merely assumed she would agree and acted accordingly. He did not test the waters. He dove right in.
15Those findings were fully open to the trial judge to make on the record before him. However, before one gets to a consideration of the fourth element, the Crown must prove the third element, that the complainant did not consent to the sexual touching. The trial judge found, at p. 133, that this element had been proven beyond a reasonable doubt. However, in arriving at that finding, he said this, at p. 128:
[The complainant] testified that she did not consent to the sexual advances made by Mr. Vandooren.
16With great respect, that is a misapprehension of the evidence. Having reviewed the transcript carefully, and having invited counsel to do the same, it is clear that the complainant never testified that she did not consent to any of the acts of sexual touching. She was, in fact, never asked by the Crown Attorney (who was not counsel on appeal) whether she consented to what the accused was doing to her or not.
17This third element involves the subjective state of mind of the complainant towards the sexual act at the time it occurred. In her mind, did she, or did she not, want the sexual act to take place? Since it involves what was going on in the complainant’s mind at the relevant time, it has become standard procedure for the Crown to ask questions of the complainant that directly address this issue. In this case, no questions of this kind were ever posed.
18There was circumstantial evidence that could lead a trier of fact to conclude that the complainant did not consent. When discussing the first time the accused said she was “sexy” and touched her left buttock, she said “it was awkward and uncomfortable”, and ended the conversation. She said she was angered by it but thought that would be the end of it. When discussing the incident where the accused put his hands over her breasts from behind, she said she twisted aside and told him that she knew he was in a relationship with someone, and asked whether that was not going well. With regard to the frequent comments about how sexy she was, she testified that she “certainly wasn’t interested in those comments or where Shawn intended to go with those comments” but she tried to ignore it. As to the final episode where the accused touched her vaginal area, she hit his hand away and stepped backwards, saying “that’s completely inappropriate”.
19However, it is not the function of this court to analyze the evidence and make findings of fact. On my reading of his reasons, the trial judge did not make his finding that there was no consent based on the evidence just referred to, but instead made it based on the erroneous statement that the complainant had testified that she did not consent.
20With great respect, this constitutes reversible error. It is a palpable error, apparent on a review of the transcript. It is an overriding error, since it played a central role in the judge’s reasoning process that led him to conclude that the third element had been proven by the Crown.
21This is not a case where the proviso applies. While a conviction on this evidence was likely, it cannot be said that it was inevitable.
Disposition
22For these reasons, the appeal is allowed, the convictions are set aside and a new trial is ordered. The accused shall appear before the Ontario Court of Justice on a date to be arranged by counsel during the first two weeks of January, 2016, for purpose of setting a new trial date.
“T. A. Heeney R.S.J.”
T. A. Heeney R.S.J.
Released: December 24, 2015.
COURT FILE NO.: 18/14
DATE: 2015-12-24
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SHAWN VANDOOREN
REASONS FOR JUDGMENT
T. A. Heeney R.S.J.
Released: December 24, 2015.