Her Majesty the Queen v. Tyler Bellefeuille
COURT FILE NO.: 94/19AP
DATE: 2019/09/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
Tyler Bellefeuille Appellant
COUNSEL: Christopher Heron, for the Crown Phillip Millar, for the Appellant
HEARD: August 12, 2019
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
On appeal from the conviction entered on October 26, 2018 and the sentence imposed on February 13, 2019, by Justice Kevin McHugh of the Ontario Court of Justice.
George J.
Nature of Appeal
[1] After a trial the Appellant was found guilty of sexual assault contrary to s. 271 of the Criminal Code of Canada. An 18-month conditional sentence order was made that contained several terms including, initially, home confinement (with some exceptions), and later a curfew. He appeals against both conviction and sentence.
[2] Relative to the conviction appeal his complaints are varied and numerous, including:
-the trial judge misapprehended evidence; -improperly assessed credibility; -improperly considered circumstantial evidence; -did not properly apply the standard of proof beyond a reasonable doubt; -reached an unreasonable verdict; -incorrectly decided the s. 10(b) Charter issue; -failed to consider the evidence as a whole; -drew inferences that were unsupported by the evidence; -incorrectly ruled that the Appellant’s statement to the police was voluntary; -unevenly scrutinized the Complainant’s evidence; and -failed to give adequate reasons.
[3] On the sentence appeal he argues that the presiding justice erred in principle, failed to consider relevant evidence, misapprehended material facts, and imposed a sentence that was demonstrably unfit.
Sentence Appeal
[4] In my view this aspect of the appeal does not require a protracted examination. The trial judge committed no error. He did not under or overemphasize any relevant factor. To the extent his reasons fail to consider an issue raised by the Appellant, it did not impact sentence. Furthermore, the sentence is not demonstrably unfit. It is well within the range of acceptable dispositions.
[5] The trial judge considered the facts (as he found them to be), was mindful of the Appellant’s personal circumstances, and imposed what he deemed to be a fit and proper sentence. Sentencing involves a fair degree of discretion and therefore is to be afforded great deference. In this case there is simply no basis to interfere. It strikes me that the Appellant simply does not like the sentence and has attempted to extract legal error from the reasons. He no doubt would have preferred a suspended sentence and probation, but this is inconsequential. The sentence appeal is dismissed.
Facts (Trial Proper)
[6] That leaves the appeal against conviction. Below is a brief outline of the relevant facts.
[7] The Appellant and complainant were part of a group celebrating a mutual friend’s birthday. Alcohol was consumed. The group commenced the celebration at a residence which is where they returned after attending a local bar. Not everyone returned at the same time. The Appellant and complainant returned together sometime after midnight with the others arriving at or around 3 a.m. One member of the group did not go to the bar, and when he attended in the bedroom he observed the Appellant to be naked from the waist down and in the process of pulling up his pants. The complainant was asleep on the bed and also naked from the waist down.
[8] A commotion ensued. The Appellant then attempted to leave the residence. While exiting the driveway his vehicle contacted several other parked vehicles. Once gone someone in the residence called 911 to, I believe, report the collisions. In any event the police eventually became aware of a sexual assault complainant. The investigation was assigned to Detective Potasse who made arrangements with the Appellant to meet. During an interview the Appellant acknowledged digitally penetrating the complainant but claimed that she had initiated the sexual activity and consented.
[9] The complainant testified at trial. While the Appellant did not, his statement to the police was determined to be voluntary, taken in a Charter compliant manner, and was admitted as part of the Crown’s case. In addition to the testimony of Crown witnesses, the trial judge relied on portions of the Appellant’s statement and found him guilty. He specifically found that the complainant was unconscious when the Appellant touched her.
Facts (Voir Dire – Taking of Statement)
[10] These are the facts relevant to the taking of the statement. As indicated, the Appellant struck other vehicles as he drove from the residence. When Detective Potasse initially contacted the Appellant, he did not advise him that he was going to be arrested or that he was a suspect in a sexual assault investigation.
[11] On route to the station the Appellant’s father told him that if he were to “get into any trouble” he should touch base with Phil Millar, a lawyer he knew from his time in the military. At the station the Appellant was taken into an interview room. In an unrecorded discussion Detective Potasse read to the Appellant his right to counsel and told him that he was being charged with sexual assault. The Appellant testified that the officer understood he had a lawyer – although at the time he could not remember Mr. Millar’s name – but was never asked if he wanted to speak with that lawyer. He further testified that he did not otherwise ask to speak with counsel because he was “confused” and “had never been in trouble before”.
[12] The Appellant was then taken to what was called a booking room. There he was asked if he had been read his right to counsel with the Appellant confirming he had. When asked if he wanted a lawyer, the Appellant responded “no”. According to the Appellant he responded that way because he thought he was being offered a lawyer, which he did not need as he already had one. The Appellant says he did not expressly waive his right to speak with his lawyer, or any lawyer for that matter, before being questioned.
[13] The interview that followed was conducted by Detective Potasse and was video-recorded. At the beginning of the interview the officer said: “Arrested you for sexual assault, dangerous driving, and fail to remain at an accident. Read your RTC and cautioned you. Secondary caution”, to which the Appellant responded, “yes sir”. There was no further discussion about his right to counsel.
[14] While the Appellant did not testify on the trial proper, he did at the voir dire. He was specifically asked whether there were any conversations with the officer before the interview about getting a lawyer. The Appellant answered as follows:
That was, that thing was, I was in the cells and then they brought me right to the cells into that booking video room so I had no chance to talk to my dad. I wanted my dad’s lawyer. I didn’t know who your name was and I never got a chance, and they kept on asking, so I must have been a dummy, because I was confused but he kept on asking do you want a lawyer when I already had a lawyer?
Well I didn’t, I know I didn’t say that in the booking room, or like in video, on the video but I did say that in the first, when I was right to counsel. I told him I had a lawyer, my dad’s lawyer who served in the army and then they kept on asking if I want a lawyer that they can’t give me, I already have a lawyer.
Legal Framework
[15] Section 686(1)(a) of the Criminal Code provides that, on the hearing of a conviction appeal, the court may allow the appeal where it is of the opinion that:
-the decision should be set aside on the ground that it is unreasonable or cannot be supported by the evidence; -the decision should be set aside on a question of law; or -in any circumstances where there was a miscarriage of justice.
Right to Counsel
[16] I will start by addressing the right to counsel.
[17] On the voir dire the Appellant acknowledged that he had been advised of his right to counsel. Therefore, the trial judge’s task was to then assess the Appellant’s response to this advice. The trial judge rejected The Appellant’s evidence. He relied upon the booking room video recording which captured the Appellant’s response to another officer’s inquiry about counsel as “no, thank you”. The Appellant argues that, in arriving at his decision the trial judge misapprehended evidence, failed to consider it as a whole, and drew inferences that were not available.
[18] The trial judge found as follows:
I turn therefore to the issue as to whether Mr. Bellefeuille was denied counsel of choice after his arrest as argued in this case. The onus of course of establishing a section 10(b) violation rests with the accused on a balance of probabilities. For the following reasons I conclude that he has failed to meet his onus in that regard.
Detective Potasse’s evidence was that at 12:46 p.m. on the date of the accused’s arrest he was provided his rights to counsel according to the standard reading of those rights. And when asked during the course of the recitation of those rights whether the defendant wanted to call a lawyer now, Potasse’s evidence was that the defendant’s response was, “no, sir”. This was also the evidence given by Detective Armstrong who was present at the time to assist in the defendant’s arrest. While it certainly would have been advisable to have videotaped this encounter I make no adverse findings for their not having done so in this case. The evidence revealed that since that time, that particular room in the police station has been equipped with the necessary hardware and software to capture these types of encounters. I accept the evidence of each and both of the officers that this was the defendant’s only response to the inquiry about contacting counsel at that time. I found the evidence on this point from both officers to be credible and consistent. Perhaps more importantly however, it is in keeping with the objective and demonstrative evidence that is revealed later on videotape at the station. In particular, Detective Potasse and the defendant are in the presence of Cell Sergeant Lipskey at approximately 1:05 p.m. just approximately 20 minutes later. This encounter was indeed video and audiotaped. At 1:05 p.m. the cell sergeant stated, essentially to Detective Potasse, “rights given?” to which Potasse responded, “yes”. A little later still at 1:05 p.m. and approximately 40 seconds, the cell sergeant stated to the accused, have you been told why arrested. The answer was, “yes”. He was asked whether he understood why he was arrested. And the answer was, “yes, sir”. He was asked you’ve been told you have the right to a lawyer, and the answer was, “yes, sir”. And he was then asked, would you like to speak to a lawyer and the answer was, “no, thank you”. These questions and answers in my view, unquestionably support the testimony given by Potasse and Armstrong’s viva voce testimony that the accused did not want to speak to the lawyer. The defendant’s answers to the cell sergeant were succinct and directly responsive to the questions asked. Just as it was, I find, with the officers in the C-I-D room as it was described.
Moreover, while not as obvious, I also find two aspects of the later interview between Detective Potasse and the defendant instructive on this issue. Firstly, at 1:34 p.m. the officer confirmed with the defendant that he had been provided his rights to counsel. I find that the defendant’s lack of a meaningful response to that comment at that point was a tacit acceptance of what the officer stated and that was inconsistent with a desire to consult with a lawyer at that point. Also beginning at about 14:46 hours nearing the end of the interview, Detective Potasse raised the issue of counsel again. He stated to the defendant, “you should probably consider getting legal advice”. This comment I find was prospective in nature, in other words, he was recommending to the defendant that he get legal advice going forward. Detective Potasse continued and stated, “when you were booked into cells you chose not speak to a lawyer and you wanted to speak to me right?”…[this] defendant responded, with some hesitation, “well, uh yah”. Detective Potasse then followed that by stating, “I asked you if you wanted to speak to lawyer upstairs”. To which the defendant responded, “I don’t know, I just thought it was a good idea”. In my view these comments by the defendant were a clear indication by him that he voluntarily chose to speak with the police because he thought it was a good idea. Rightly or wrongly, this was his choice to make after having been given his rights to counsel. His response belies any notion, I find, that he wanted to speak to a lawyer at the material time.
[19] The trial judge goes on to assess the Appellant’s evidence on the voir dire and, as indicated, rejects it. He found it to be inconsistent and unhelpful commenting that: “In the final analysis, I have no confidence whatsoever in the accused’s evidence regarding the right to counsel issue in this case. Indeed, as noted, I reject it outright”.
[20] There is one particular aspect of the Appellant’s testimony that is worth highlighting. He testified that when the police asked him in the booking room whether he wanted a lawyer he answered no because he understood that they were offering “their” lawyer (whatever that means) or a duty counsel lawyer when he already had a lawyer (apparently Mr. Millar). The Appellant says that he was confused by the police question because, as he had already told them, he had a lawyer. He criticizes the trial judge for rejecting his evidence arguing, in part, that he misconstrued his testimony and did not, as was required, focus on his subjective understanding of what the police were doing when they asked him if he wanted a lawyer. In other words, the trial judge improperly honed-in on what the police officers were attempting to accomplish which, on this issue, was of no consequence.
[21] In his factum Appellant counsel goes so far as to characterize the trial judge’s finding on police conduct as “naïve”. I strongly disagree. The trial judge did not mischaracterize the evidence, nor did he display any naivety.
[22] The Appellant further argues that the trial judge drew inferences unsupported by the evidence. He argues that the trial judge, in assessing his responses to the police officers - in particular his indication that he did not wish to speak to a lawyer - did not sufficiently consider or appreciate his personal circumstances and subjective understanding of the situation he found himself in. Appellant counsel argues that the trial judge was required to consider his client’s responses in a larger context, including the fact he had no criminal record, that this was his first encounter with the criminal justice system, and was a soldier predisposed to defer to authority. Again, I disagree.
[23] I appreciate that the Appellant does not like the trial judge’s conclusions, but this is no reason to interfere. The trial judge’s reasons were based on the entire evidentiary record and are balanced and logical. It is not for me to second-guess the trial judge nor to substitute my own decision. The trial judge did not, as the Appellant submits, give the “benefit of the doubt” to Detective Potasse thereby unevenly scrutinizing the evidence. He considered all of the evidence, referred to it at length in his reasons, and determined what he accepted and what he rejected. Most importantly he explained why he found as he did.
[24] The Appellant argues that the trial judge erroneously characterized his evidence as an insinuation that the police were trying to steer him to a lawyer who was not his lawyer of choice. First of all, there is absolutely no basis to find that that was what the police were actually doing. To the Appellant’s point, all I take from the trial judge’s reasons is that he agreed with that fairly obvious conclusion. Moreover, he did not find that this is what the Appellant believed. To suggest that police conduct and intentions are entirely irrelevant to the assessment of what an accused understood is to fundamentally misunderstand the trial judge’s fact-finding function. Of course, they must assess evidence in a balanced manner but the Appellant’s argument is to, in effect, say that the trial judge had no option but to accept his evidence on what he understood and subjectively believed. The trial judge was under no such obligation. So long as he explains his decision – which he did – there is no basis to interfere.
[25] The Appellant argues that there is no evidence to support the trial judge’s s. 10(b) decision. He seems to boil this down to one fact: that Detective Potasse did not video-record his initial interaction with the Appellant when, he says, he first read him his rights to counsel and cautioned him. The Appellant’s factum puts it this way, at paras. 46 through 48:
The uncontroverted evidence on the voir dire is that the Appellant arranged to meet with Det. Potasse, ostensibly to discuss certain Highway Traffic Act charges. On his way to London, his father gave him the name of a lawyer. At the police station, the Appellant was arrested. Det. Potasse read the right to counsel to, and cautioned, the Appellant. This interaction was not recorded.
In a recorded interaction in the booking room, the booking officer asked the Appellant if he had been read his rights. The Appellant answered in the affirmative. When asked if he wished to speak to a lawyer, he answered, “no sir”. At the commencement of his interview, which took place within an hour of his arrest, he confirmed that he had been read his right to counsel but he was not asked if he waived his rights and the Appellant was silent on this issue.
The controverted evidence is the Appellant’s claim that upon his arrest he told Det. Potasse his father had a lawyer whose name he could not remember and that he mentioned this to the detective several more times. Det. Potasse denies this. Det. Armstrong testified that he did not remember whether the Appellant requested a lawyer and his notebook is silent on this issue.
[26] Two things. First, it is always preferable to video record this type of interaction. Not only is it good practice, it avoids difficulties down the road. However, this is not a hard and fast rule and the trial judge adequately explains why, in this case, it was not determinative. Second, I agree that were this the only evidence on this point the Appellant’s argument might hold. But it is not. The trial judge went on to detail why the lack of a video recording was not conclusive, pointing to the interactions that are later captured on video, and by independently assessing the Appellant’s credibility and the reliability of his account. I am not going to interfere with the trial judge’s finding that there was an unequivocal waiver of the Appellant’s right to counsel. The Appellant’s points are well taken, and indeed another judge may have treated the Appellant’s evidence differently, but the decision to dismiss the Appellant’s Charter application was well-reasoned and grounded in the evidence the trial judge accepted.
[27] One last comment about the accused’s statement. While counsel did not address this at length in submissions, the Appellant’s factum asserts that the judge’s assessment of voluntariness was flawed. I agree that the trial judge did not devote much time to this issue – other than to note that the Appellant “voluntarily chose to speak with police because he thought it was a good idea”. That said, the record before him revealed no basis to find that the Appellant spoke to the police because he was threatened, coerced, promised anything or otherwise induced. Nor was there any basis to conclude that the Appellant did not have an operating mind. There is no merit to this ground of appeal.
Sexual Assault
[28] The Appellant did not testify at trial but his statement to Detective Potasse was admitted for the truth of its content. The trial judge rejected the Appellant’s indication to Detective Potasse that the complainant was a willing participant and found that at the time he touched her she was unconscious and incapable of consenting. In addition to those aspects of the Appellant’s statement he accepted, the trial judge also relied upon the evidence of other members of the group who testified that they came upon the Appellant and complainant in a state of undress with the complainant lying unconscious.
[29] In rejecting the Appellant’s evidence that the sexual activity was consensual the Appellant argues that the trial judge made palpable and overriding errors by misapprehending evidence, engaging in an unbalanced scrutiny of the complainant’s testimony and the Appellant’s statement, and by failing to properly apply the law in respect of circumstantial evidence. He argues that the verdict was unreasonable.
[30] Was there uneven scrutiny of the evidence? In R. v. J.H. (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 the Ontario Court of Appeal, at para. 39, writes that:
To 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[s] it clear that the trial judge had applied different standards in assessing the evidence of the appellant and complainant.
[31] The Court of Appeal’s comments in R. v. Aird, 2013 ONCA 447 are particularly helpful in understanding how and under what circumstances this type of appeal will succeed. It writes that:
The “different standards of scrutiny” argument is a difficult argument to succeed on in an appellate court. It is difficult for two…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.
[32] In our case, what is the “something” in the reasons that clearly reveals this unbalanced scrutiny? The trial judge says this beginning at pg. 34 of his Reasons for Judgment, which starts with an assessment of the testimony of a witness who comes upon the Appellant and complainant in the bedroom:
Mr. Unitus…confirmed that in his first statement to the police he made no mention of the defendant having an erection whereas in his second statement to the police he said that he “believed” that the defendant did and that the defendant was trying to cover his erect penis with his hands. These concessions were reasonable ones, I found, and assisted rather than detracted from his evidence. In my view, none of these issues detracted from the probative value of his testimony in this case. I have no hesitation in accepting his evidence about what his observations were once he was advised that the defendant and the complainant were in a room together in the early morning hours of that day. He went there to that room trying to get in. The door was being blocked in some fashion. Upon pushing his way in he found the complainant on the bed, on her back, unconscious and naked from the waist down with her shirt pulled up. The accused was standing near the bed naked. There was nobody else around at the moment, he testified, and that would include Hutchins and Khyatt. He said he shook the alleged victim and there was no response to that shaking. He stated that he was yelling and he was angry and this yelling and expressed anger drew no response whatever from the complainant. After picking her up and moving her to another room, he still described the complainant as being “incoherent” and responding no more than with grunts. His description of [the complainant] upon his entry to that room leaves little to the imagination. She was unconscious, likely as the result of the consumption of intoxicating substances. It is trite to say that unconscious people cannot consent to sexual activity, both jurisprudentially and by statute according to section 273.1(2)(b) of the Criminal Code.
This of course does not end the matter. The Crown must establish beyond a reasonable doubt that there was an application of force by the accused in circumstances of sexuality and of course that the complainant did not consent to this application of force at the time that it was applied. None of the Crown witnesses provided direct evidence of sexual touching by the accused upon the person of [the complainant]. Certainly the circumstantial evidence of the two parties states that she was in a position of undress in a closed bedroom after a night of drinking. This evidence circumstantially is suggestive at least of some sexual activity taking place with the two parties in that room. So too is the accused’s statement to Mr. Unitus upon being confronted about the situation that the victim “was so hot”. More significantly however of course in this case is the accused statement to Detective Potasse. In that statement, Mr. Bellefeuille stated that he kissed the complainant in that room and he digitally penetrated her vagina. This admission which I accept satisfies the actus reus of the offence in the sense that there was in fact an application of force in circumstances of sexuality. I’m satisfied that the accused’s description of the sexual activity that took place in that room is accurate and complete in a sense that he did no more than kissing and digitally penetrating the vagina of the complainant.
[33] The Appellant has a host of complaints about the trial judge’s assessment of the evidence. He finds particularly troubling the following comments which are found at pg. 39 of the transcript:
[The complainant] for her part asserts that she remembers nothing of the sexual encounter. I accept her testimony that she does not recall anything that took place after about 12:40 in the morning until about 8:00 the next morning. This lack of memory I find resulted from the consumption of intoxicating substances in quantities greater than she recalls. One cannot unfortunately either completely discount the possibility that a young woman in a licensed premises might have been given a stupefying drug without her knowledge. I need not find one way or another whether that took place. The reality is [the complainant] professed some knowledge of this phenomenon in her testimony, but regardless of the exact reason or what contributed to it I find that the complainant had no memory of the events after approximately 12:00 to 12:45 a.m. at the bar. Again, it’s important to remember that that is not determinative of the issue as to whether or not she consented to the sexual activity in question, but it’s also important to recall that the Crown’s case is not really premised on the complainant’s subjective withholding of consent. Rather, the Crown states that it has established beyond a reasonable doubt that the complainant was incapable of consenting because at the time of the sexual touching, she was unconscious.
[34] At first blush this passage concerned me as well. I was particularly concerned about the trial judge’s musings about a stupefying drug being slipped to the complainant which is, obviously, speculative. However, upon reflection and after a complete review of the evidence and the trial judge’s reasons, I find that this potentially problematic comment was of no consequence. The necessary analysis was undertaken by the trial judge, and the only significant finding was that the complainant was, at the time of the sexual activity, unconscious and therefore incapable of consenting. It would have been better to not throw the issue of unbeknownst drug consumption into the mix, but when you read the reasons as a whole it had no bearing on the trial judge’s ultimate finding. The finding that the complainant was unconscious at the relevant time was open to the judge on the evidence before him. Given those portions of the Appellant’s statement that he did accept, given the two Crown witnesses who were believed, and in light of what he accepted was the complainant’s inability to recall anything (including the sexual contact), this was the only reasonable conclusion.
[35] On the issue of timing – which was critical given the complainant could recall what she drank and seemed to recall without any difficulty her time at the bar - the trial judge conducted a thorough comparative analysis of all the witness’s testimony and drew an inference that, given his findings of fact, was the only reasonable one to make.
[36] The Appellant harshly criticizes the trial judge for remaining silent on the complainant’s credibility. This silence, however, must be viewed in the context of all the evidence and his reasons as a whole. By preventing this case from devolving into a mere credibility contest the trial judge did exactly what he was supposed to do. His conclusions, on both the complainant’s state of consciousness and timing, did not rest entirely (or even primarily) on the complainant’s testimony. It was based on her evidence, the evidence from the other Crown witnesses, and those portions of the Appellant’s statement that he did accept. He treated the evidence properly. He determined that the only reasonable inference to be drawn is that at the time of the sexual activity (that the Appellant admits occurred) the complainant was unconscious (by whatever means) and that she therefore did not have the capacity to consent.
[37] The Appellant argues that the trial judge should not have accepted the complainant’s testimony that she was unconscious. The trial judge addresses this head on and, again, avoids reducing it to a contest between the complainant and Appellant. Yes, he does accept that the complainant was unconscious at the relevant time but he does not rely only on the complainant’s account. In fact, he relied mainly upon Mr. Unitus’s evidence. I reproduce this earlier in these reasons but, to the question of whether the complainant was unconscious, the trial judge recounted Mr. Unitus’s efforts to shake the complainant with no response, her unresponsiveness to his yelling, and his indication that she did not come to even after picking her up and moving her to another room. The trial judge adequately addressed the Appellant’s theory that the complainant was simply feigning her memory loss to, as he puts it, “cover up her dalliance with the Appellant because she had a boyfriend”.
[38] On the issue of timing, the Appellant takes issue with the trial judge’s reliance on the Appellant’s statement to Detective Potasse. But, again, he did not rely on this solely. He considered the whole of the evidence and made findings that were available to him.
[39] The Appellant submits that the trial judge engaged in no analysis of the complainant’s alcohol consumption. That is not accurate. There is no doubt that he had trouble reconciling what the complainant says she drank with her state of unconsciousness but he finds that she was unconscious at the relevant time, and I am in no position to interfere with that. A trial judge’s reasons “must be read with an appreciation of the purpose for which they were delivered. Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles”.[^1]
[40] This passage from the Morrissey decision is important for another reason. It, in its effect, requires that I assess alleged W.(D.) errors in a certain way. That is, a trial judge’s failure to recite the W.(D.) test in its entirety, or to even mention it all, is not fatal. I must read the trial judge’s reasons as a whole and determine whether or not he properly applied the W.(D.) principles, which is, drawing upon the language in Morrissey, a well-settled legal principle. The question is did the trial judge give effect to W.(D.)? Did he properly apply it? I find that he did. His reasons make it abundantly clear what evidence he accepted, and why he accepted it. He also clearly indicates what evidence he rejected, and why he rejected it. As it relates specifically to the Appellant’s statement, while he does not expressly say so, the trial judge’s reasons make it clear that not only did he reject his contention that the complainant consented, but that it did not raise a reasonable doubt.
[41] Upon a review of the evidence and the trial judge’s reasons two things become apparent. First, the trial judge’s findings of fact were based on his acceptance of the testimony of Crown witnesses and a determination that the Appellant’s statement to the police did not raise a reasonable doubt. As there is no indication that he misapprehended the evidence – at least this is what I find – his conclusions are entitled to deference. Another judge may have made different findings of fact and credibility but that is not a basis to interfere. Second, given those findings, the only reasonable inference he could have then drawn was that the complainant was unconscious at the time of the sexual activity and therefore could not have consented.
Conclusion
[42] For these reasons the appeals against both conviction and sentence are dismissed.
“Justice J.C. George”
Justice Jonathon C. George
Released: September 13, 2019
COURT FILE NO.: 3034-19
DATE: 2019/09/13
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent
– and –
Tyler Bellefeuille Appellant
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
George J.
Released: September 13, 2019
[^1]: R. v. Morrissey, [1995] 2 S.C.R. 665