



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    identify the complainant or a witness shall not be published in any document or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.






CITATION:
R. v. Bergen, 2011
          ONCA 210



DATE: 20110316



DOCKET: C50610



COURT OF APPEAL FOR ONTARIO



Simmons, Rouleau and Karakatsanis JJ.A.



BETWEEN:



Her Majesty The Queen



Respondent



and



Mark Bergen



Appellant



Diana Lumba, for the appellant



Susan Magotiaux, for the respondent



Heard and released orally: March 11, 2011



On appeal from convictions entered by Justice James Ramsay
          of the Superior Court of Justice on October 21, 2008 and from the sentence
          imposed on November 21, 2008.



ENDORSEMENT



[1]

The appellant appeals from convictions for two counts
    of sexual assault involving two different complainants, S.P. and J.P. The
    appellant was tried by Ramsay J., sitting alone. The trial judge dismissed a
    charge of assault causing bodily harm involving J.P.


The S.P. Conviction
    Appeal

[2]


[3]


Criminal Code
[4]


Criminal Code
[5]


[6]

First, the appellant asserts that the trial
    judge erred by failed to turn his mind to S.Ps subjective state of mind in
    relation to consent and, if he did, his finding on that issue was unreasonable.
[7]

We disagree.  The trial judge turned his mind specifically to the question of whether
    the complainant was induced to engage in sexual activity by the appellants
    abuse of his position.  Relying on
    several aspects of the evidence adduced at trial, including the evidence of an
    expert who testified about the nature of a therapist-patient relationship, the
    trial judge concluded that the complainant was in fact induced by the appellants
    abuse of his position as her therapist. In our view, this finding was amply
    supported by the evidence, including evidence concerning how the relationship
    progressed and the complainants own testimony about the appellant and the
    nature of their relationship.
[8]

Second, the appellant claims that the trial
    judge erred in relying on the evidence that S.P.s parents trusted the
    appellant and that he deceived them as constituting evidence that the appellant
    induced the complainant to engage in sexual activity by abusing his
    position.  We do not accept this
    submission. The trial judge referred to the appellant deceiving the complainants
    parents as evidence of the appellants manipulative conduct. That was but one
    aspect of the evidence that permitted the trial judge to assess the extent of
    the appellants controlling behaviour and to draw inferences about its impact.

[9]

Third, the appellant argues that the trial
    judges interventions compromised the fairness of the trial. We do not accept
    this submission. We agree some of the trial judges comments were unfortunate
    and should have been avoided. However, assessing the record as a whole, we are
    not satisfied that they raise a concern that the trial judge prejudged the evidence,
    nor do we accept that they deprived the appellant of a fair opportunity to
    present his case.
The J.P. Conviction Appeal

[10]

This charge arose out of an incident that
    allegedly occurred at the appellants home when J.P., a neighbour and former
    patient, visited the appellant to provide support to the appellant following
    S.P.s termination of their relationship.

[11]

The appellant raises three grounds on the
    conviction appeal relating to J.P.  The
    first is the issue of interventions by the trial judge. We have already
    disposed of that ground of appeal.

[12]

Second, the appellant argues that the trial
    judge made improper use of a prior consistent statement made by J.P. when she
    confronted the appellant on the day after the alleged assault. We do not accept
    this submission.  In our view, the trial
    judges reference to the consistency of this statement was merely a response to
    a defence attack on the improbability of J.P. returning to the appellants
    home. We are not satisfied that the trial judge used this evidence to improperly
    bolster J.P.s credibility.
[13]



[14]

The appeals are therefore dismissed.
Signed:        Janet Simmons J.A.
Paul Rouleau J.A.
Karakatsanis J.A.