COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Veeken,

2020 BCCA 54

Date: 20200117

Docket: CA45929

Between:

Regina

Respondent

And

Paul Peter Veeken

Appellant

Restriction on
publication:  A publication ban has been imposed under
s. 486.4 of the
Criminal Code
restricting the publication,
broadcasting or
transmission in any way of evidence that could identify the complainant in this
matter. This publication ban applies indefinitely unless otherwise ordered.

Pursuant to s. 16(4)
of the
Sex Offender Information and Registration Act

[
SOIRA
], no person shall disclose any information that is collected
pursuant to
an order under
SOIRA
or the fact that information relating to a person
is
collected under
SOIRA
.

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Grauer

On appeal from:  An
order of the Supreme Court of British Columbia, dated
December 12, 2018 (conviction) (
R. v. Veeken
,
2018 BCSC 2429,
Prince George Docket 37730‑2).

Oral Reasons for Judgment

Counsel for the Appellant:

S.R. Wright

Counsel for the Respondent:

J.R.W. Caldwell

Place and Date of Hearing:

Vancouver, British Columbia

January 17, 2020

Place and Date of Judgment:

Vancouver, British Columbia

January 17, 2020

Summary:

The appellant challenges his
conviction for sexual interference on various grounds including that the judge
erred by: (1) editing the oral reasons for judgment after they were
delivered; and (2) shifting the burden of proof. Held: Appeal allowed
and a new trial is ordered. It is unnecessary for this Court to address the
extent to which trial judges can edit their oral reasons for judgment after
delivery. The edited reasons for judgment, standing alone, establish that the
judge erred in law by shifting the burden of proof. The judge erroneously
concluded that he could neither accept the appellants evidence nor find that
it raised a reasonable doubt in the absence of independent evidence
that confirmed the appellants denial of wrongdoing.

[1]

FITCH J.A.
: The appellant was convicted by a Supreme Court judge
of sexual interference contrary to s. 151 of the
Criminal Code
,
R.S.C. 1985, c. C‑46. The offence arose out of incidents said
to have occurred when the complainant was between 1012 years of age.
At the relevant time, the appellant was 3840 years of age. The alleged
incidents involved the appellant repeatedly touching the complainants breasts
and vaginal area, typically in the course of tickling her when the
complainant visited the appellant at his familys cabin.

[2]

The appellant testified. He denied ever touching the complainant for a
sexual purpose.

[3]

This was the second trial in this matter  a new trial
having been ordered by this Court in reasons for judgment indexed as
2017 BCCA 417.

[4]

There was no direct evidence confirming the complainants testimony
that the appellant repeatedly touched her breasts and vaginal area. The
trial judge recognized that the resolution of the case turned on his credibility findings
and the application of the framework set out in
R. v. W.(D.)
,
[1991] 1 S.C.R. 742, to the circumstances of this case.

[5]

The three‑step
W.(D.)
analysis is designed to
assist the trier of fact in properly applying the reasonable doubt standard
to the issue of credibility. Where, as here, an accused denies the commission of the offence,
a trier of fact must find the accused not guilty if they believe
the accuseds evidence or, even if they do not believe the accuseds evidence,
they are left in reasonable doubt by it. If the trier of fact does not believe
the accuseds denial and is not left with a reasonable doubt
by the accuseds testimony, a conviction can only result where the Crown
discharges its burden of establishing guilt beyond a reasonable doubt.

[6]

In oral reasons for judgment indexed as 2018 BCSC 2429,
the judge rejected the appellants evidence, found that the appellants evidence
did not raise a reasonable doubt, and accepted the complainants evidence
that the appellant repeatedly touched her for a sexual purpose.

[7]

On appeal, the appellant submits that the judge erred by: (1) editing
the oral reasons for judgment after they were delivered; (2) shifting
the burden of proof; (3) misapprehending evidence; and (4) providing
insufficient reasons for judgment.

[8]

The first ground of appeal raises an important question
of practice concerning the extent to which trial judges are entitled to
edit reasons given orally. This Court has addressed the point on
several occasions:
R. v. Walton
, 2011 BCCA 535
at para. 21;
R. v. Pham
(6 September 2011),
Vancouver CA038676 (B.C.C.A. Chambers). We have consistently held that
while trial judges cannot edit or change their oral reasons in
an attempt to defeat an appeal, judges are entitled to edit their
reasons to a degree as, for example, where words have been
misspoken or some clarification is necessary. I should add that no suggestion
has been made in this case that the judge undertook an editing process
to defeat an appeal. In fact, the edited judgment was released
before the notice of appeal was filed in this Court.

[9]

A similar approach to this issue was taken by the Alberta Court of Appeal
in
R. v. Schell
, 2004 ABCA 143 at paras. 43 and 45.
In that case, it was held that the judge did nothing impermissible by deleting
a sentence from her oral reasons for judgment in circumstances where the  written reasons
[did] not deviate from the general thrust of their oral predecessor: citing Roman N. Komar,
Reasons for Judgment: A Handbook for Judges and Other Judicial Officers
(Toronto: Butterworths, 1980) at 16.

[10]

It appears that a more restrictive view has been taken by the
Ontario Court of Appeal:
R. v. Wang
, 2010 ONCA 435
at paras. 911. In that case, trial judges were cautioned
against modifying, changing or adding to a transcript of oral reasons
rendered in court except to correct punctuation, grammatical errors
and the like. The court endorsed the proposition that reasons for judgment
are not meant to be tentative and counsel who receive a transcript of oral reasons
should not be left to wonder whether it in fact reflects what was said in the court,
or rather constitutes a version of the reasons as later modified by the judge.

[11]

In this case, the judge amended his oral reasons for judgment
by deleting from the transcribed version words said in court,
including language the appellant says would have supported his second ground of appeal.
The appellant submits that the amendments made were substantive in nature and
exceeded the authority trial judges have to edit oral reasons.

[12]

In the alternative, the appellant argues that the edited reasons for judgment,
standing alone, establish that the judge erred in law by shifting the
burden of proof.

[13]

I agree with the appellants alternative submission on this issue. In
my view, reversible error in law is reflected in the edited version of the
reasons for judgment. As a consequence, it is unnecessary for this
Court to address the extent to which trial judges can edit their oral reasons for judgment
to properly dispose of this appeal. In these circumstances, the issue is
best left to be explored another day.

[14]

Further, as I am of the view that a new trial is required as a
consequence of the error identified in the appellants second ground of appeal,
I consider it unnecessary to address the appellants other grounds of appeal.

[15]

The reasons, as edited and transcribed, reflect the following application
of the first two steps of the
W.(D.)
framework to
the evidence in this case:

[72]      Accordingly, the first step in the analysis in
the case at bar is whether I accept, as true, Mr. Veekens testimony
that he did not touch [the complainants] breast and vaginal areas
at any time. In this regard, the Crown characterizes Mr. Veekens evidence
as a bare denial and while the defence acknowledges that this is
so, it points out that there is not much else that Mr. Veeken can do to
meet the allegations against him.
It is not controversial that there is no
reliable evidence supporting Mr. Veekens denial.

[73]
In these circumstances, I am satisfied that a
finding that Mr. Veekens denial is true cannot reasonably be made.
I am mindful that the defence has urged me to rely upon Mr. Veekens testimonial demeanour
and manner, by submitting that Mr. Veeken was forthright, gave full answers,
explained suggested inconsistencies, and was not shaken in cross‑examination.
I am not persuaded, however, that Mr. Veekens demeanour and manner
are a sound basis for accepting his testimony as true. Notably, the Crown did
not agree with the defences assessment; rather, it characterized Mr. Veeken
as glib and evasive. These widely divergent views of the

same testimony only serve to demonstrate the
frailty of manner and demeanour as the basis for determining the
truthfulness of a witness.

[74]
The
next step, then, is whether Mr. Veekens testimony raises a
reasonable doubt as to his guilt. This is similarly problematic in the absence
of reliable evidence that supports, directly or indirectly, Mr. Veekens
denial.
Moreover, Mr. Veeken admits having [the complainant] on his lap
and tickling her; he admits pulling her onto his lap while in the hot tub;
and, he admits spending evenings and nights with only [the complainant] and
her nine‑year‑old brother.

[Emphasis added.]

[16]

In my view, these paragraphs support the appellants submission
that his evidence was rejected and found not to raise a reasonable doubt
because it was not confirmed by any other reliable evidence. Beyond the
obvious challenge of requiring the appellant to adduce evidence supporting
his denial  in effect, to corroborate a negative  the trial judges approach
had the effect of erroneously shifting the burden of proof.

[17]

The judge was certainly entitled to reject the appellants evidence
and find that it did not raise a reasonable doubt about his guilt.
The difficulty in this case arises because of the judges conclusion that
he could neither accept the appellants evidence nor find that it raised a
reasonable doubt in the absence of independent and reliable evidence
supporting his account. To approach the issue this way was to
erroneously shift the burden to the accused to adduce evidence
that confirmed his denial of wrongdoing.

[18]

While I appreciate that the reasons for judgment must be read
in their entirety and assessed as a whole, the error in law was the
starting place for the judges
W.(D.)
analysis and, in my view,
one so fundamental that it taints his reasons as a whole.

[19]

For the foregoing reasons, I would allow the appeal, set aside the conviction,
and order a new trial.

[20]

In light of the disposition, I propose it is unnecessary
to resolve the application to admit fresh evidence.

[21]

SAUNDERS J.A.
: I agree.

[22]

GRAUER J.A.
: I agree.

[23]

SAUNDERS J.A.
: The appeal is allowed, the conviction
is set aside, and there is an order for a new trial.

The Honourable Mr. Justice Fitch