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Criminal - Sex Offences - Evidence. R. v. Vannoordennen
In R. v. Vannoordennen (Ont CA, 2026) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here brought against convictions for "two counts each of sexual interference (Criminal Code, R.S.C. 1985, c. C-46, s. 151), sexual assault (s. 271), and making child pornography[2] (s. 163.1(2)), as well as single counts of invitation to sexual touching (s. 152) and sexual exploitation (s. 153(1)(a))".
The court considered the complainants' history of counselling, here as an oath-helping issue:Counselling as Oath-Helping
[44] The appellant submits that the trial judge erred in relying on the fact that both complainants attended counselling as a result of the appellant’s offending against them. Near the end of her reasons, the trial judge said the following:Both men have received counselling. Their mother confirmed this, and clearly the accused was aware that [J.H.] was seeing [J.H.’s psychiatrist]. It is difficult to understand why they would seek counselling without a compelling reason. [45] The appellant submits that reliance on the counselling evidence amounted to improper oath-helping. The Crown submits that the use of this evidence was appropriate, and in line with this court’s decision in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 43, in which Fairburn A.C.J.O. said: “a complainant’s emotional disintegration after an alleged offence may well be relevant to whether, as a matter of common sense and human experience, the events occurred as described by the complainant.”
[46] The Crown acknowledges that, while attendance at counselling in the present case does not amount to evidence of “emotional disintegration”, “common sense and human experience permit an inference that counselling was undertaken to address a traumatic experience, such as the confusion, depression and guilt that the victims said resulted from the [a]ppellant’s abuse.”
[47] In evaluating this issue, I note that there was a good deal of evidence about the complainants’ attendance at counselling. They both explained why they sought counselling. They claimed that it was related to their experiences with the appellant. No objection was taken by the appellant’s trial counsel to the admission of this evidence. It was relevant to the narrative of events. And I would note that the Crown did not ask the trial judge to draw the inference that seeking counselling enhanced the credibility of the complainants.
[48] I agree with the appellant that the situation in this case was much different than in A.J.K. The concern is that the trial judge reasoned that, because the brothers went to counselling, it must be true that the appellant abused them. Although I am concerned with the trial judge’s use of this evidence without any further explanation, this was only one factor that she relied upon in her assessment of the credibility of each of the complainants. It was unnecessary and added nothing to her assessment of their evidence. The trial judge would have reached the same conclusions about the respective credibility of the complainants in any event: see R. v. Santhosh, 2016 ONCA 731, 342 C.C.C. (3d) 41, at para. 55; A.J.K., at para. 42.
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