COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vassell, 2019 ONCA 489

DATE: 20190613

DOCKET: C64787 and C64788

Doherty, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rochelle Vassell and Anna-Kay Bailey-Johnson

Appellants

Breana Vandebeek, for the appellant, Rochelle Vassell

Daniel C. Santoro and Cara Barbisan, for the appellant,
    Anna-Kay Bailey-Johnson

Xenia Proestos, for the respondent

Heard and released orally:  June 10, 2019

On appeal from the convictions entered by Justice I. André
    of the Superior Court of Justice, dated December 1, 2017.

REASONS FOR DECISION

[1]

The appellants returned from vacation in St. Lucia in possession of 1.4
    kilograms of cocaine each. Duress was the only defence advanced at trial. The
    appellant, Bailey-Johnson, testified. The appellant, Vassell, did not.

[2]

The trial judge convicted both appellants and they appeal their
    convictions only.

Issue #1  Did the trial judge misapply the burden of proof as
    it related to the defence of duress?

[3]

In his reasons, the trial judge accurately summarized the elements of
    the defence of duress: see para. 26. The trial judge also correctly described
    the burden of proof as it applied to that defence and the evidence of Ms.
    Bailey-Johnson: see reasons, para. 24.  However, at para. 27, the trial judge
    said the following:

To succeed in its case against the accused, the Crown must
    prove beyond a reasonable doubt that at least one of the essential elements of
    duress is absent.
If I have a reasonable doubt about all of these elements,
    I am obliged to find the accused guilty of importing cocaine.
[Emphasis added.]

[4]

The first sentence in this quote is a correct statement of law. The
    second italicized sentence is an erroneous statement of the law. If a trier of
    fact has a reasonable doubt about the existence of each of the elements of
    duress, the trier of fact must acquit.

[5]

The trial judge reviewed the evidence of Ms. Bailey-Johnson at some
    length, eventually concluding that he did not believe her evidence that she and
    Ms. Vassell had been assaulted and threatened. He also held that the evidence
    did not leave him with a reasonable doubt about the threats and assaults: see
    reasons, paras. 45-46.

[6]

The trial judge went on to hold that had he found the appellants were
    threatened, he would have found that a reasonable person in the position of the
    appellants would have had the capacity to report the matter to the Canadian
    police. In other words, there was a safe avenue of escape. The trial judge
    ultimately concluded, at para. 52, that the Crown had proved the case beyond a
    reasonable doubt and, in particular, that the appellants had not acted under
    duress.

[7]

Reading the reasons as a whole, we are satisfied that the trial judge
    understood and properly applied the burden of proof as it related to the duress
    claim. The defence failed for two reasons. First, the trial judge did not
    believe the evidence of Ms. Bailey-Johnson and that evidence did not raise a
    reasonable doubt. Without that evidence, there was no evidentiary basis for the
    defence. Second, the evidence showed that the appellants did have a safe avenue
    of escape once they were within the jurisdiction of the Canadian authorities.

[8]

The impugned passage in para. 27 is, in our view, when considered in the
    context of the entirety of the reasons, a simple misstatement by the trial
    judge. It does not, in our view, given the other correct references to the
    burden of proof which appear throughout the judgment, lead us to conclude that
    the trial judge made the fundamental error put forward by the appellants.

Issue #2  Did the trial judge misapply the rule in
Hodges
    Case
and erroneously require that Ms. Bailey-Johnsons evidence be
    corroborated?

[9]

The outcome of the duress defence depended entirely on Ms.
    Bailey-Johnsons credibility. The defence argued that there was other evidence
    that rendered parts of her testimony more credible. The trial judge examined
    Ms. Bailey-Johnsons evidence in the context of the rest of the evidence. He
    found that parts of her evidence were in fact undermined by other parts of the
    evidence, and that while some parts of the rest of the evidence were consistent
    with some details that she gave, they did not render more credible the fundamental
    part of her evidence; that is, that she and Ms. Vassell were coerced into
    bringing the drugs into Canada by threats and assaults.

[10]

The
    trial judge was not engaged in an inference-drawing or fact-finding process in
    this part of his reasons. He was testing the credibility of the direct evidence
    put forward by Ms. Bailey-Johnson in support of the defence of duress. He was
    testing that against other evidence in order to evaluate her credibility. We
    see no error in the approach he took to the evidence. Indeed, it is reflected
    in the approach that counsel took to the evidence in closing argument.

[11]

The
    trial judge did misapprehend one part of the evidence. He referred to Ms.
    Bailey-Johnson as having some training as a Canadian Border Services Officer
    (para. 49) when describing her not insignificant academic and employment
    background in Canada. In fact, Ms. Bailey-Johnson had some training with the
    Canada Revenue Agency.

[12]

We
    are not satisfied that this error was material to the outcome. First, it had
    absolutely no connection to the finding that the appellants were not coerced
    into bringing the drugs into Canada. Second, to the extent that it was relevant
    to the safe avenue of escape element of the defence, we see no significant
    difference between some training with the Border Services and some training
    with Revenue Canada insofar as the evaluation of a safe avenue of escape
    element of the defence is concerned. In any event, as noted above, the duress
    defence failed regardless of the outcome of the safe avenue of escape
    inquiry.

[13]

The
    appeal is dismissed.

Doherty J.A.

David Watt J.A.

G. Pardu J.A.


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), (2.1), (2.2), (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 victim 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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(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 victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1)   Subject to subsection (2.2), in proceedings
    in respect of an offence other than an offence referred to in subsection (1),
    if the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2)   In proceedings in respect
    of an offence other than an offence referred to in subsection (1), if the
    victim is under the age of 18 years, the presiding judge or justice shall

(a) as
    soon as feasible, inform the victim of their right to make an application for
    the order; and

(b) on
    application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c.
    13, s. 18.

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. W.H., 2019 ONCA 485

DATE: 20190612

DOCKET: C64806

Feldman, van Rensburg and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.H.

Appellant

Breana Vandebeek, for the appellant

Jill Cameron, for the respondent

Heard: June 7, 2019

On appeal from the conviction entered on September 19,
    2017 by Justice Grant R. Dow of the Superior Court of Justice, sitting without
    a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual interference, invitation to sexual
    touching and sexual assault arising out of three incidents involving the
    appellants step daughter, who was between 6 and 11 years of age at the time of
    the offences.

[2]

The appellant makes two arguments on appeal. First, he argues that that
    the trial judge erred in relying on the consistency of the complainants
    allegations to undermine problems related to the manner and timing of
    disclosure. Second, the appellant argues that the trial judge applied an uneven
    standard of scrutiny to the evidence of the defence and the Crown.

(1)

The consistency of
    the allegations

[3]

The appellants argument that the trial judges reliance on the
    consistency of the complainants allegations amounts to oath helping must be
    rejected.

[4]

In the impugned passage in his reasons, the trial judge states that any
    concern that the complainants mothers inquiries of her raised a reasonable
    doubt was eliminated by the fact that the complainant had repeated her
    allegations to the police, the judge at the preliminary inquiry, and the trial
    judge over a three-year period, and that her evidence has not wavered as her
    appreciation of the importance of telling the truth would likely have grown.

[5]

We agree with the Crown that the trial judges statement must be read in
    the context of the submissions from the parties and his reasons as a whole.

[6]

The defence was entitled to attack the complainants credibility,
    including various inconsistencies in her evidence. However, it was open to the
    trial judge to consider the whole of the evidence, including the complainants
    evidence following her initial disclosure and to whom it was made, in
    determining whether the manner of the complainants mothers questioning of her
    prior to the allegations being made raised a reasonable doubt.

[7]

The trial judge did not use the complainants statements to bolster her
    credibility or to corroborate her in-court testimony. Rather, the trial judge considered,
    and rejected, the appellants contention at trial that the complainants
    evidence was unreliable because it was inconsistent; because of the circumstances
    in which it was disclosed following the complainants mothers inquiries of her
    (specifically, asking whether the appellant had put his penis into her vagina);
    and because the complainant should have been a better witness because she was
    no longer a child. This was the context in which the trial judge referred to
    the complainant having maintained her complaint, reporting it not only to her
    mother but also to authority figures, despite her love for the appellant and
    absence of a motive to displease her mother. The unwavering nature of her
    evidence also rebutted the defences argument that she should be a better
    witness because she was 15 years old when she testified.

[8]

In other words, the trial judges credibility findings did not rest on
    the impermissible assumption that because the complainant had repeated her
    story, it was more likely to be true. Although the trial judges reasons could
    have been clearer in this regard, it is apparent that he was ultimately using
    the statements to provide context with which to assess the defences attack on
    the complaints reliability based on alleged inconsistencies:
R. v. O. (L.
)
,
    2015 ONCA 394, at paras. 34, 36;
R. v. J. (M.A.)
, 2015 ONCA 725, at
    para. 46.

[9]

We see no error in the trial judges treatment of the evidence. The
    trial judge offered extensive reasons in support of his conclusion that the
    appellant was guilty beyond a reasonable doubt, reasons that are responsive to
    the record that was before him. The burden properly remained on the Crown
    throughout.

(2)

Uneven scrutiny of
    the evidence

[10]

The
    second ground of appeal must also be rejected. The appellant can point to
    nothing in the trial judges reasons or in the record that establishes that he applied
    different standards of scrutiny in assessing the evidence of the complainant
    and the appellant, nor can the appellant identify any palpable and overriding
    errors.

[11]

The
    appellants argument is, in essence, that the trial judge reached an unreasonable
    verdict by relying on irrelevant reasons to reject the appellants blanket
    denial of the offences.

[12]

Although,
    read in isolation, some of the reasons cited by the trial judge for rejecting
    the appellants evidence may appear to be of questionable relevance, we accept
    the submission of the Crown that, read in the context of the record and the
    reasons as a whole, it is clear that the trial judges reasons for rejecting
    the appellants evidence are based on evidence that corroborates the
    complainants allegations.

[13]

This
    case turned on credibility. The trial judge did not believe the appellants
    denial that sexual contact occurred. This was a finding that was open to him on
    the record.

[14]

The
    trial judge then concluded that the appellants testimony did not raise a reasonable
    doubt as to his guilt.

[15]

The
    trial judges acceptance of the complainants evidence, which he found was
    corroborated by, among other things, evidence of the unusually close
    relationship between the appellant and the complainant, clingy behaviour, and
    physical contact including embracing, holding hands, and sitting on the
    appellants lap, necessarily entails the rejection of the appellants evidence,
    as in
R. v. J.J.R.D
. (2006), 215 C.C.C.
    (3d) 252 (Ont. C.A.), at para. 53, leave to appeal refused, [2007] S.C.C.A. No.
    69.

[16]

The
    trial judge was entitled to believe the complainant, despite inconsistencies in
    her evidence. He reviewed her evidence thoroughly, in an age-sensitive manner,
    and explained why he accepted it. He properly took into account that her
    recollections began when she was a child and that she had a limited ability to
    recall some details and was uncomfortable discussing intimate sexual acts. As
    noted above, he also took into account the fact that the core allegations were
    maintained as the complainant, who was 15 years old at the time of trial, grew
    up. He acknowledged the inconsistencies in the complainants testimony and
    found her credible nonetheless. There is no basis to impugn his decision to
    accept her evidence.

[17]

The
    appeal is dismissed.

K. Feldman J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.