Ian Mulgrew: Judges need sexual misconduct training
Credit to Author: Ian Mulgrew| Date: Mon, 17 Feb 2020 21:40:32 +0000
A Prince George man may face a rare third trial after an appeal throwing out his second conviction underscored the need to train judges in sexual misconduct cases.
After two expensive, emotional trials — one before a jury — the province’s high bench found both justices made serious errors despite the attention in recent years on the need for care and sensitivity in dealing with these prosecutions plagued by myths and stereotypes.
Spurred by concerns raised by the #MeToo movement and former CBC-host Jian Ghomeshi’s high-profile, controversial 2016 trial, the federal Liberals last week introduced Bill C-5 to ensure newly appointed superior court judges are properly trained for sexual cases.
It also would require the Canadian Judicial Council to report on efforts to provide similar training to sitting judges and amend the Criminal Code to ensure judges provide reasons on the record for sexual offences.
The bill mirrors previous legislation introduced by former Conservative MP Rona Ambrose.
“There are some issues … that really are above politics,” she said, supporting the proposed changes while standing with Minister for Women and Gender Equality Maryam Monsef and Justice Minister David Lametti.
Her bill passed the House with bipartisan support before moldering in the Senate.
This case exemplified the issues.
B.C. Supreme Justice Lance Bernard, the second trial judge, edited his reasons after they were delivered — although the three-justice panel did not address that ground of appeal, deciding he erred more significantly.
“In my view, reversible error in law is reflected in the edited version of the reasons for judgment,” said Justice Gregory Fitch, supported by colleagues Mary Saunders and Christopher Grauer.
“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. … I am of the view that a new trial is required …”
In February 2015, at the first trial, a jury found Paul Peter Veeken guilty of sexually interfering with a young girl.
But the appellate bench tossed that decision, saying B.C. Supreme Court Justice Elliot Myers failed to properly instruct the jury in that trial.
The unanimous decision concluded the jury’s reasoning might have been improperly influenced by testimony from the girl’s mother.
“The jury should have been instructed that what R.’s mother said she was told (about Veeken) was hearsay and was not proof of the truth of what she had been told,” Justice David Frankel wrote.
“More importantly, the jury should have been specifically instructed that it must not rely on that evidence to conclude Mr. Veeken was a person of bad character who was, therefore, more likely to have committed the offence. … Simply instructing the jury to ‘ignore’ the evidence was not sufficient to ensure a fair trial.”
Veeken, now 47, was re-tried — this time before a judge alone.
After the second trial, in December 2018, Bernard found Veeken guilty again of inappropriately and deliberately touching the girl over the course of about two years starting when she was 10, often under the guise of tickling or playing with her.
When testifying, Veeken admitted to hosting get-togethers for groups of children at a family cabin where they would use a hot tub and watch movies — with no other adults present.
He acknowledged providing candy and ice cream along with toys and children’s movies.
The girl complained to her parents about Veeken in 2013 after being warned at a babysitting course about men and conduct of concern. They went to police.
Bernard reputedly concluded Veeken groomed the girl for his own sexual gratification while “hiding in plain view” by using the other children as a “smokescreen of sorts.”
In December 2018, he said the victim was a “naive young girl” enthralled by Veeken: “It was a child’s dream that sadly turned into a nightmare.”
The appeal division, however, said his verdict was fatally flawed.
“The judge was certainly entitled to reject the appellant’s evidence and find that it did not raise a reasonable doubt about his guilt,” Fitch concluded.
“The difficulty in this case arises because of the judge’s conclusion that he could neither accept the appellant’s 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 … it taints his reasons as a whole.”
Veeken’s lawyer Scott Wright described the case as “basically he said, she said.”
“It’s tough (to explain) because the trial court reasons have not been released yet from the second trial and they shed a bit more light on the other grounds of appeal,” he said.
“It’s challenging and it’s a tough spot for trial judges to be in — to articulate why it is you believe somebody or disbelieve somebody. So, certainly there’s some sympathy there for the process they have to undertake isn’t easy to articulate something that is sometimes just a ‘feel’ thing in terms of accepting what somebody is telling you.”
Sentenced to two years in jail and one year’s probation, Veeken has served his custodial time, Wright added, so he didn’t think a new trial necessary.
“The (B.C. Prosecution Service) is reviewing the decision carefully,” said spokesman Dan McLaughlin. “No final decision has yet been made regarding the next steps in the prosecution.”