



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

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

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

(b)      on application made by the complainant,
    the prosecutor or any such witness, 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).

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. Vassell, 2016 ONCA 785

DATE: 20161027

DOCKET: C59014

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ferdinand McLaughlin Vassell

Appellant

Ferdinand McLaughlin Vassell, acting in person

Brian Snell, appearing as duty counsel

Susan Magotiaux, for the respondent

Heard: October 6, 2016

On appeal from the conviction entered on May 5, 2008 and
    the sentence imposed on July 6, 2011 by Justice Thomas P. Cleary of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of sexual assault. The trial judge
    subsequently declared him to be a dangerous offender and sentenced him to indeterminate
    detention under s. 753(4) of the
Criminal Code
, R.S.C. 1985, c. C-46.

[2]

The appellant appeals his conviction for sexual assault. While the
    notice of appeal included a sentence appeal, it was not pursued. If the
    conviction appeal is successful, then the sentence would fall.

[3]

In procedural terms, the appellant was convicted on May 5, 2008 and
    sentenced on July 6, 2011. Between the conviction and sentencing dates, he was
    tried, convicted and sentenced on other charges by Justice Antonio Di Zio,
    which led to the companion appeal (C59054).

[4]

The appellant argues the reasons of the trial judge are insufficient to
    justify conviction, citing
R. v. Wigle
, 2009 ONCA 604, 252 O.A.C. 209.
    To pass muster, the reasons must advance the accused's understanding of the
    reasons for his conviction and facilitate meaningful appellate review of the
    correctness of the decision:
R. v. Brown
(2002), 61 O.R. (3d) 619
    (C.A.), at para. 26. As the Supreme Court noted in
R. v. Vuradin
, 2013
    SCC 38, [2013] 2 S.C.R. 639, at para 11: Credibility determinations by a trial
    judge attract a high degree of deference. Further, the Court noted the
    importance of a contextual approach, at para. 12:

Ultimately, appellate courts considering the sufficiency of
    reasons "should read them as a whole, in the context of the evidence, the
    arguments and the trial, with an appreciation of the purposes or functions for
    which they are delivered": [
R. v. R.E.M.
, 2008 SCC 51, [2008] 3
    S.C.R. 3], at para. 16. These purposes "are fulfilled if the reasons, read
    in context, show why the judge decided as he or she did" (para. 17).

[5]

The key issues in the case were the complainants credibility and the
    presence or absence of consent.

[6]

The trial judge, in about 30 pages of reasons, noted points at which the
    complainants evidence about the events over the course of the evening was
    corroborated by other evidence. The assault itself was not corroborated, which
    is not unusual.

[7]

The trial judges reasons record the following evidence. The
    complainant, K.M., testified she was sexually assaulted on January 13, 2007 in
    the front seat of the appellants car in the parking lot of a McDonalds
    restaurant.

[8]

The complainants evidence was that after the assault in the McDonalds
    parking lot, the appellant drove her to a Coffee Time restaurant. She used the
    washroom and then sat with the appellant in the restaurant for about 13 minutes,
    according to the restaurant video. Two Coffee Time employees described her distraught
    state.

[9]

The appellant told the complainant he would drive her home, so she
    returned to his car. When she was back in his car, the appellant told her to
    remove her pants. She immediately got out of the car without her shoes or a
    jacket. Her actions in leaving the appellants car and crossing the street to an
    Esso service station were captured by video. She called the police from there.
    They found her distraught and shoeless in the service station kiosk, in the
    middle of winter.

[10]

The appellant did not testify. Counsel argues that the actions of the
    complainant in sitting with the appellant in the Coffee Time restaurant is
    enough to raise a reasonable doubt about the complainants consent to sexual
    intercourse.

[11]

As the trial judge observed, the complainants mental and physical state
    and her state of dress in winter weather, were all inconsistent with any such
    consent. The trial judge noted:

[I am] satisfied beyond a reasonable doubt that there was
    proved a lack of consent for the physical action of intercourse that took
    place. As I said before, that does not end the inquiry, but I want to indicate
    the reason is I accept her evidence that she said no, that she tried to push
    him away, that she made some comments about why youre doing this to me? What
    if you had a daughter, which from a reasonable mans point of view would
    clearly be indicating non-consent.

[12]

He added:

[I have] reviewed the evidence of the complainant that I
    accepted to arrive at the decision that she  it has been shown beyond a
    reasonable doubt she was not consenting, and considered the circumstances that
    I had before me, keeping in mind that I can only make true inferences on the
    basis of a reasonable view of facts proven.

[13]

Considering the reasons as a whole, and the context of unfolding events,
    it is clear that the trial judge accepted the complainants evidence that she
    was forced into sexual intercourse. There was no contrary evidence.

[14]

The record is sufficient to allow the appellant to understand why he was
    convicted and to permit meaningful appellate review. We would therefore not
    give effect to the argument that the trial judges reasons are insufficient.

[15]

The appeal is dismissed.

J.C. MacPherson
    J.A.

Gloria Epstein J.A.

P. Lauwers J.A.


