R. v. Vant (D.) et al., 2015 ONCA 481

• Judge: Watt, van Rensburg and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 04, 2014
• Jurisdiction: Ontario
• Citations: 2015 ONCA 481;(2015), 338 O.A.C. 83 (CA)

R. v. Vant (D.) (2015), 338 O.A.C. 83 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.043

Her Majesty the Queen (respondent) v. David Vant and Marcia Vant (appellants)

(C52884; C53228; 2015 ONCA 481)

Indexed As: R. v. Vant (D.) et al.

Ontario Court of Appeal

Watt, van Rensburg and Pardu, JJ.A.

June 29, 2015.

Summary:

The accused were convicted of two counts of causing another person to take a stupefying thing with intent to enable themselves to commit the offence of sexual assault, and one count of sexual assault causing bodily harm. They appealed their convictions.

The Ontario Court of Appeal dismissed the appeals.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by an order restricting publication under s. 486.4(1), s. 486.4(2), s. 486.4(3), s. 486.4(4), s. 486.6(1) or s. 486.6(2) of the Criminal Code, and Maritime Law Book's editorial policy.

Criminal Law - Topic 1335.5

Administering stupefying or overpowering drug - Evidence and proof - Section 246(b) of the Criminal Code provided that "Every one who, with intent to enable or assist himself or another person to commit an indictable offence, ... administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing, is guilty of an indictable offence and liable to imprisonment for life." - The Ontario Court of Appeal stated that "Three basic principles inform an assessment of the adequacy of proof of what might be termed the 'supply' component of the offence created by s. 246(b) of the Criminal Code. ... First, where the allegation is that an accused actually supplied a stupefying drug, ... matter or thing, this essential element may be established by direct or circumstantial evidence or a combination of both types of evidence. No principled reason would foreclose proof by the evidence of the complainant ... Second, a trial judge may infer that a stupefying thing was administered without knowing the precise thing or the quantity of it ... Third, no procedural, evidentiary, or substantive rule or principle requires confirmation or corroboration of the testimony of a complainant in connection with this or any other essential element of the offence in s. 246(b)." - See paragraphs 86 to 89.

Criminal Law - Topic 1335.5

Administering stupefying or overpowering drug - Evidence and proof - The accused were convicted of two counts of causing another person to take a stupefying thing with intent to enable themselves to commit the offence of sexual assault (Criminal Code, s. 246(b)), and one count of sexual assault causing bodily harm - They appealed their convictions, asserting that the trial judge erred in her characterization of the expert toxicological evidence as "strong evidence" and in her reliance upon it as supportive of the administration of a stupefying substance when it was equally consistent with voluntary excess consumption of alcohol - The Ontario Court of Appeal rejected this ground of appeal for four reasons - (1) A fair reading of the whole of the trial judge's reasons belied the claim that the judge characterized the toxicologist's testimony as "strong evidence" - The reference to "strong evidence" related to the combined force of the complainants' evidence and the toxicologist's expert opinion - This description was neither unreasonable nor unwarranted - (2) The judge's assessment of the weight to be assigned to individual items of evidence and the probative force of the evidence taken as a whole were subject to significant deference on appellate review - Neither finding was unreasonable or infected by legal error - (3) The toxicologist's evidence was relevant, material and admissible - It was not rendered irrelevant, immaterial or inadmissible because the expert described the reported symptoms as being consistent with a central nervous system depressant (CNS) like GHB (alcohol was a CNS depressant) or because the expert could not identify the drug or dosage involved - The submission that the expert's evidence should have been subjected to what amounts to a standard that invokes the rule in Hodge's case was unfounded - The submission effectively invited the application of the standard of proof applicable to the evidence as a whole to a specific item of evidence - (4) Implicit in the accused's assertion was an incorrect assumption of the requirement for such evidence in a prosecution under s. 246(b) - Se paragraphs 90 to 95.

Criminal Law - Topic 1335.5

Administering stupefying or overpowering drug - Evidence and proof - The accused were convicted of two counts of causing another person to take a stupefying thing with intent to enable themselves to commit the offence of sexual assault (Criminal Code, s. 246(b)), and one count of sexual assault causing bodily harm - They appealed their convictions, asserting that the trial judge misapprehended two aspects of the evidence, which flawed essential findings of fact - The first alleged misapprehension related to the complainants having felt the effect of the drug at the restaurant while they were in the presence of Gengasingh prior to their meeting and joining the accused at their table - The second concerned the significance of memory recovery over time for a conclusion that they had been administered a date-rape drug - The Ontario Court of Appeal rejected this ground of appeal for three reasons - (1) The trial judge did not misapprehend the evidence - The judge reasonably concluded that the drugs were ingested at the restaurant in the accused's presence - The first significant effects occurred proximate to the departure from the restaurant - This occurred after the complainants had left Gengasingh and were the accused's captives - It was only after some time with the accused that the complainants' behaviour went "significantly offside" - (2) Proof of the "supply" element of the s. 246(b) offence was not limited to what occurred at the restaurant - The accused were not without fault if Gengasingh deposited a stupefying substance in the complainants' drinks - The complainants were under the accused's exclusive control for several hours, plied with alcohol (a stupefying substance) and tea with a taste consistent with GHB contamination - At least some of the behaviour at the accused's apartment captured on video confirmed the complainants' account - (3) The judge did not decide the essential element of "supply" on the basis that the drug administered was GHB - Identification of the substance or evidence of the specific amount administered was not required - See paragraphs 110 to 113.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The Ontario Court of Appeal set out the following points about evidence of post-offence conduct: "First, evidence of post-offence conduct is a species of circumstantial evidence that invokes a retrospectant chain of reasoning. The inference looks backward from what an accused said or did later to participation in prior conduct alleged to be criminal ... Second, evidence of post-offence conduct is not subject to any special evidentiary rule ... Third, most evidence of post-offence conduct is admitted routinely as part of the narrative of events presented at trial. As part of the case for the Crown this evidence is relevant, material and offends no exclusionary rule of the law of evidence ... Fourth, as with any item of evidence, relevance depends on the tendency of an item of evidence, as a matter of logic and human experience, to make the proposition for which it is advanced slightly more probable than that proposition would be without the evidence ... There are no per se rules of relevance. The relevance or probative value of evidence of post-offence conduct depends and must be assessed on the facts of each case ... Finally, the reasonable inferences available from circumstantial evidence, like evidence of post-offence conduct, must depend primarily on the nature of the evidence and the issue to which that evidence is directed ..." - See paragraphs 120 to 125.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The accused were convicted of two counts of causing another person to take a stupefying thing with intent to enable themselves to commit the offence of sexual assault (Criminal Code, s. 246(b)), and one count of sexual assault causing bodily harm - They appealed their convictions, asserting that the trial judge erred in relying on post-offence conduct respecting the destruction of evidence and the alteration of the scene in reaching her conclusion of guilt - The Ontario Court of Appeal rejected the ground of appeal for four reasons - (1) The impugned evidence was properly received at trial as an essential part of the narrative - (2) The defence advanced at trial was a denial of the actus reus of the offences - No suggestion emerged from the evidence of any other explanation for conduct relating to the destruction or seclusion of potentially incriminating evidence - (3) Evidence of the post-offence destruction of potential evidence and alteration of the scene were commonplace examples of evidence of post-offence conduct - (4) The evidence did not form a significant component of the credibility or reliability analysis of the complainants' evidence or the findings of fact essential to a determination of guilt - The scattered references to it in the judge's lengthy reasons were indicative of its role as part of the narrative, not of any core findings on proof of the essential elements of the offence - See paragraphs 126 to 130.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The Ontario Court of Appeal stated that "A misapprehension of evidence includes a failure to consider relevant evidence, a mistake about the substance of evidence and a failure to give proper effect to evidence ... Not every misapprehension of evidence will vitiate a finding of guilt. The nature and extent of the alleged misapprehension and its significance to the verdict rendered requires consideration in light of the fundamental principle that a verdict be based exclusively on the evidence adduced at trial ... When an appellant alleges a misapprehension of evidence, our first task is to consider the reasonableness of the verdict. An appellant who establishes an unreasonable verdict is entitled to an acquittal. Absent an unreasonable verdict, our task is to decide whether the misapprehension of evidence occasioned a miscarriage of justice. An appellant who shows that a misapprehension of evidence resulted in a miscarriage of justice is usually entitled to have his or her conviction quashed and a new trial ordered. If an appellant fails to demonstrate that any misapprehension resulted in an unreasonable verdict or produced a miscarriage of justice, he or she is then left to persuade the appellate court that the misapprehension amounted to an error of law. If the court is convinced of such an error, the Crown then bears the burden of showing that there was no miscarriage of justice under s. 686(1)(b)(iii) ..." - See paragraphs 108 and 109.

Criminal Law - Topic 4957

Appeals - Indictable offences - Grounds - Misapprehension of evidence - [See Criminal Law - Topic 4866 ].

Criminal Law - Topic 4973

Appeals - Indictable offences - Powers of Court of Appeal - Power to review and weigh evidence - [See second Criminal Law - Topic 1335.5 ].

Criminal Law - Topic 4973

Appeals - Indictable offences - Powers of Court of Appeal - Power to review and weigh evidence - The accused were convicted of two counts of causing another person to take a stupefying thing with intent to enable themselves to commit the offence of sexual assault, and one count of sexual assault causing bodily harm - They appealed their convictions, asserting that the trial judge misused the evidence of the complainants' friends about their "out of character" conduct - They asserted that the friends' testimony was evidence of character or propensity that involved a double inference: from conduct to disposition and from disposition to conduct in conformity with that disposition - The accused asserted that character evidence, offered as circumstantial evidence of conduct by a person on a specific occasion, was generally excluded because it had minimal probative value and engendered substantial prejudice - Even if properly admitted, they asserted that it lacked probative value - The accused conceded that, in an appropriate case, the Crown could adduce evidence of habit as circumstantial evidence of conduct in accordance with that habit on a material occasion, but asserted that this was not evidence of habit - The Ontario Court of Appeal rejected the ground of appeal for four reasons - (1)The accused did not contest the relevance, materiality or admissibility of the evidence at trial - (2) The primary evidence on the issues of administration of a stupefying thing and lack of consent was the complainants' testimony and the videos recorded on a cell phone belonging to one of the complainants - The trial judge's finding that the complaints were credible and their evidence reliable was not infected by improper reliance on the disposition evidence - (3) The accused's principal complaint seemed more about the weight assigned to the evidence - It was for the trial judge to determine the weight to be assigned to individual items and to the whole of the evidence - The court did not retry cases or reweigh evidence save to the limited extent required to assess the reasonableness of a verdict - (4) The evidence was not central or pivotal to the judge's determination that the complainants were credible and their evidence reliable - See paragraphs 71 to 75.

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See both Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 5316

Evidence and witnesses - Inferences - Of guilt - From conduct - [See both Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 5528

Evidence and witnesses - Evidence respecting the victim - Character of victim - [See second Criminal Law - Topic 4973 ].

Criminal Law - Topic 5528

Evidence and witnesses - Evidence respecting the victim - Character of victim - The Ontario Court of Appeal reviewed the principles governing the admissibility of evidence of the character and the habit of a victim of an offence - See paragraphs 64 to 70.

Criminal Law - Topic 7655

Summary conviction proceedings - Appeals - Grounds - Misapprehension of evidence - [See Criminal Law - Topic 4866 ].

Evidence - Topic 305

Circumstantial evidence - Rule in Hodge's Case - General - [See second Criminal Law - Topic 1335.5 ].

Evidence - Topic 1176

Relevant facts - Relevance and materiality - Res gestae (incl. narrative) - General - [See both Criminal Law - Topic 4399.9 ].

Evidence - Topic 1290

Relevant facts, relevance and materiality - Doing of human act - Criminal cases - Victim's character - [See second Criminal Law - Topic 4973 and second Criminal Law - Topic 5528 ].

Evidence - Topic 1352

Relevant facts, relevance and materiality - Personal habits and characteristics - Criminal cases - Victim's habits - [See second Criminal Law - Topic 4973 and second Criminal Law - Topic 5528 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - Acceptance, rejection and weight to be given to expert opinion - [See second Criminal Law - Topic 1335.5 ].

Cases Noticed:

R. v. Diu (A.B.) et al. (2000), 133 O.A.C. 201; 49 O.R.(3d) 40 (C.A.), refd to. [para. 66].

R. v. Scopelliti (1981), 63 C.C.C.(2d) 481 (Ont. C.A.), refd to. [para. 66].

R. v. Fleming (R.S.), [2007] O.A.C. Uned. 495; 2007 ONCA 808, refd to. [para. 87].

R. v. Bell (J.) (2007), 223 O.A.C. 243; 2007 ONCA 320, leave to appeal denied (2007), 381 N.R. 399 (S.C.C.), refd to. [para. 88].

Hodge's Case (1838), 2 Lewin 227; 168 E.R. 1136, refd to. [para. 94].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 94].

R. v. Ménard (S.), [1998] 2 S.C.R. 109; 228 N.R. 100; 111 O.A.C. 1, refd to. [para. 94].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514(C.A.), refd to. [para. 108].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 121].

R. v. Figueroa (N.) et al. (2008), 233 O.A.C. 176; 232 C.C.C.(3d) 51; 2008 ONCA 106, refd to. [para. 121].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 124].

Authors and Works Noticed:

Wigmore on Evidence (Chadbourne Rev. 1979), § 376, p. 385 [para. 69].

Wigmore on Evidence (Tillers Rev. 1983), § 92, pp. 1608, 1609 [para. 68].

Counsel:

David E. Harris, for the appellant, David Vant;

Wayne A. Cunningham, for the appellant, Marcia Vant;

John Patton, for the respondent.

This appeal was heard on December 4, 2014, by Watt, van Rensburg and Pardu, JJ.A., of the Ontario Court of Appeal. Watt, J.A., released the following decision for the court on June 29, 2015.