By Grant Fleming
STRATFORD, ONTARIO – On October 3, 2014, Mitchell Vandergunst, a star player and alternate captain for the Stratford Cullitons, took to the ice for a game against the visiting Guelph Hurricanes. More than 1,000 Cullitons fans cheered as Vandergunst scored a goal and assisted on another to lead his team to victory.
Earlier that same day, Vandergunst stood in a courtroom as Justice George Brophy read out his verdict: he found Vandergunst guilty on two charges of sexually assaulting a woman. In his decision, Justice Brophy described Vandergunst’s actions as “predatory.”
A publication ban prohibits identifying the woman.
The people in charge of Vandergunst’s team didn’t seem to pay any heed to Vandergunst’s criminal conviction. Not only did the 19 year old play for the Cullitons that night, he laced up his skates for another four months.
Vandergunst was finally kicked off the team on February 5th of this year, a day after Justice Brophy sentenced him to a year in jail plus two years of probation. The team’s coach, Phil Westman, resigned that same day.
On the day Vandergunst and Westman were shown the door, the team’s president, Dan Mathieson, told reporters that neither he nor any of the approximately 35 board members and staff knew about Vandergunst’s trial and rape conviction.
During the news conference, Mathieson gave a vague explanation for how nobody knew, saying, “there was some discrepancy as to whether it was a charge or a conviction.” Mathieson added that the coach felt his hands were tied because he didn’t know how to treat a publication ban (Vandergunst’s identity was never part of the ban).
George Masur questions Mathieson’s version of events. He and his wife, Yvonne, have bought tickets to Stratford Cullitons games for 40 years. The Masurs sat with friends in their usual section Q this season, wondering what the club’s leaders knew about the convicted rapist.
“I’ve heard from different people that he (the coach) did tell the board of directors right after Vandergunst was convicted,” Masur said. “So you wonder about a cover-up.”
Masur desrbribed the team’s scandal as “sad,” but said he and his wife would continue to root for the Cullitons.
Since holding his news conference three months ago, Mathieson has refused to answer questions about the Vandergunst affair, including why the coach didn’t remove Vandergunst from the team immediately.
Mathieson is also the mayor of Stratford. He won re-election shortly after Vandergunst was found guilty.
A number of people who read this blog have asked for a full account of Vandergunst’s criminal proceedings. While I don’t have the daily transcripts for the 10-day trial – I wasn’t a reporter at the courthouse in Goderich, Ontario – I’ve managed to get a copy of the key document: the judge’s decision.
What follows is a descriptive account of Justice Brophy’s reasons for finding Mitchell Vandergunst guilty of sexual assault. I have made every effort to report the decision accurately while obeying the publication ban that protects the identity of the complainant and the witnesses.
(Warning: graphic content. Areas in bold and italics are mine.)
Ontario Court of Justice
REASONS FOR JUDGMENT (26 pages)
Her Majesty the Queen
Before Justice Brophy
Heard on 24 and 31 March and 24 and 28 Arpil and 27 June, 11 July, 22 August and 5 September 2014
Reasons for Judgment released on 3 October 2014
Counsel for the Crown: Teresa Donnelly
Counsel for the defendant Mitchell Vandergunst: David Reid
Mitchell Vandergunst charged with three counts of sexual assault on a woman (her identity protected by a publication ban).
It is alleged that on or about July 19, 2013 Vandergunst committed a sexual assault on the woman in the town of Grand Bend.
Vandergunst is charged that on or about July 20, 2013 he committed a further sexual assault on the same woman (in South Huron).
The final of the three charges against Vandergunst: on the same day (July 20, 2013) he committed another sexual assault on the woman (also in South Huron).
The Crown’s case (as described by Justice Brophy):
While the accused was at a drinking establishment in Grand Bend on July 19/13 he reached around the woman and grabbed her breasts.
Later on July 20 as she and her boyfriend and the accused were returning to her boyfriend’s home in South Huron in a cab the accused again groped her.
The judge continues to describe the Crown’s case: “It is the Crown allegation that in the middle of the night the accused came into her bed in the (boyfriend’s) home and had sexual intercourse with her without her consent.”
The response by the defence (as described by Justice Brophy):
“With respect to the first allegation…it did not happen and with respect to the second and third allegations…the sexual intercourse with her was consensual.”
Justice Brophy then explained the Basic Principles, including:
“In this criminal case the Crown must prove the case beyond a reasonable doubt. The accused is presumed to be innocent. The Crown must prove guilt beyond a reasonable doubt. Vandergunst does not have to prove his innocence.”
The core of the Crown’s case is the evidence of the complainant.
- the complainant presents personal information [details prohibited by publication ban];
- the complainant’s relationship with her boyfriend;
- what the complainant knew about Vandergunst (she knew he was a close friend of her boyfriend but she did not know Vandergunst very well);
- the Crown’s presentation of the events of July 19 and 20;
- the complainant and friends of hers had been partying the evening of July 19;
- during the course of the evening, the complainant and some of her friends consumed alcohol and marijuana at a residence;
- later that same evening the group, including the complainant, continued their partying at a drinking establishment in nearby Grand Bend;
- en route, while they were passengers in a friend’s car, the complainant and her friends consumed alcohol and marijuana (the complainant added this information during cross examination);
- the complainant’s boyfriend and Vandergunst showed up at the bar at some point.
(The judge continues his overview of the Crown’s case against Vandergunst.)
The Crown’s evidence concerning count 1 of the sexual assault charges
- at some point, when [the complainant’s boyfriend] was at the bar getting drinks, the complainant told the court that Vandergunst came up behind her and grabbed her chest and pulled her towards him;
- the complainant told the court that she did not consent to being grabbed in that manner;
- she said a male she knew intervened to stop Vandergunst and told him he was acting inappropriately (that male later told police he was not involved).
The Crown’s evidence concerning count 2 of the sexual assault charges
- after they left the bar in the early morning hours of July 20, the complainant told the court that she, her boyfriend and Vandergunst took a taxi to head back to the boyfriend’s house;
- the complainant’s boyfriend fell asleep on the ride home; at that point Vandergunst began rubbing her leg and kissed her; she pushed him away;
- she tried to shake her boyfriend awake but he did not respond;
- Vandergunst again rubbed her leg and then grabbed her breast and kissed her;
- she pushed Vandergunst away again, telling him she wasn’t interested;
- Vandergunst kept saying the complainant’s boyfriend did not have to know what they were doing; the complainant told him she was not interested regardless of whether her boyfriend knew.
The Crown’s evidence concerning count 3 of the sexual assault charges
- the complainant said the three arrived at the boyfriend’s home; Vandergunst helped his drunk friend – her boyfriend – inside; the boyfriend staggered up to the second floor; the complainant went to a bedroom in the basement; Vandergunst followed her;
- other people, including a brother of the boyfriend, were asleep in one of the two beds in the bedroom;
- the complainant got into the empty bed;
- she awoke at some point when Vandergunst got into bed with her;
- Vandergunst started touching her; she pushed him away and told him to stop;
- she said Vandergunst turned away briefly but then turned back, this time pulling her shorts and underwear down and performing oral sex on her; she pushed his head away and told him no;
- Vandergunst then used his arm and legs to pin the complainant down;
- she kept telling Vandergunst no and was begging him to stop, but he put his penis inside her;
- she tried to push Vandergunst off, telling him no and begging him to stop, but he was bigger and stronger than her (at the time, Vandergunst was 6’2”or 6’3” tall and 200 pounds, outweighing the complainant by approximately 80 pounds, as was determined later on in the trial);
- eventually Vandergunst got off the complainant, stood and smiled at her, and left the bedroom;
- she went into the bathroom and cried before getting dressed;
- Vandergunst called her to say he was sorry and he had been drunk (she told the court he sounded scared and upset);
- she made efforts to speak with her boyfriend the morning of July 20 (he became upset and walked out);
- she had communication (texts, calls) with a number of friends and family;
- she made a formal statement to the Ontario Provincial Police (O.P.P.) on the afternoon of July 20;
- she received a sexual assault examination at a hospital in London (Ont.) on July 21;
- several tender areas were discovered, including her right shoulder, under her left breast and on her right thigh;
- several days later the tender areas turned into bruises.
(Pages 8-13 of the judge’s decision continue with a summary of further testimony from the complainant, including the cross examination by Vandergunst’s lawyer.)
- the judge described the cross by David Reid, the lawyer for Vandergunst, as “rigorous, skilful and thorough”;
- Reid dealt with drinking and marijuana use by the complainant as well as her claim that a male she knew intervened to stop Vandergunst (this relates to count 1 of the charges: what she claimed Vandergunst did to her in the bar in Grand Bend);
- the defence lawyer asked the complainant numerous questions about why she did not speak up or call out when she was being assaulted in the cab and in the bed;
- the complainant explained why she did not speak about the use of marijuana and alcohol, and about the male she thought intervened at the bar;
- she explained why she did not speak up in the cab (she thought she handled it)
she explained why she did not cry out from the bed (she froze);
- during cross examination, the complainant said she remembered that Vandergunst took his boxer shorts with him; however, during the police search of the bedroom, a pair of black boxers were found; in his decision the judge noted that “interestingly, the evidence of the search was not put to [the complainant] and arguably that becomes a Brown v Dunn [the “anti-ambush rule”] problem, although the Crown did not make that argument”;
- also in cross examination, the judge noted that “[the complainant] rejected the submission that she was trying to save face with [her boyfriend] and that was why she made the sexual assault allegation. [The complainant] said that the easiest thing would be to stick with what the accused suggested – he tried but nothing happened. But that is not the truth. She was not concerned about [her boyfriend’s] feelings or her status with him, she was concerned with what had happened to her.
(In his decision, the judge described the complainant as “not shaken in cross examination. She was defiant, emotional and firm.”)
CROWN WITNESSES (Nurse Examiner, complainant’s boyfriend)
- a Registered Nurse with many years as a sexual assault examiner (her qualifications were not challenged by the defence);
- she met the complainant on July 21 2013 and completed the sexual assault kit at that time, including a vaginal swab and body exam;
- the physical exam revealed purple bruises to the complainant’s right shoulder, inner thigh and under her left breast, and tenderness on her abdomen and back of her head;
- a vaginal exam was not conducted because of pain associated with the posterior fourchette;
- the exam kit was sealed and handed to the investigating officer with the O.P.P.;
- the nurse’s testimony was not challenged by the defence.
- he confirmed that he and Vandergunst were friends;
- he said he and the complainant were boyfriend and girlfriend since June 2013, his relationship with her was in the early stages, he liked her, he hoped they would have a future, and he didn’t express to anyone any doubts about that possibility;
- on July 19 2013 he and Vandergunst showed up together at the bar in Grand Bend where he met up with the complainant;
- he drank a lot that night;
- he remembered getting in a cab with the complainant and Vandergunst at the end of the night, with Vandergunst originally in the front seat and he and the complainant in the back seat
he had some memory of walking of walking into the house and going upstairs, and then passing out;
- the next morning he met the complainant downstairs and drove her to her car;
- he said when he got back to the house Vandergunst told him he had tried to hook up with the complainant but aside from giving her a few rubs, nothing happened because she would have nothing to do with it;
- Vandergunst then went home, leaving the boyfriend upset and disappointed;
- the boyfriend and the complainant texted later on; he told her Vandergunst had already let him know what happened;
- she texted back to say Vanadergunst probably didn’t tell the truth;
- the boyfriend and the complainant then met up; she told him what happened; she was a wreck – crying and very nervous;
- he then met up with an upset, tearful and apologetic Vandergunst;
- Vandergunst wanted to apologize to the complainant; the boyfriend gave him a phone;
- Vandergunst told the complainant he was sorry, that he did not remember anything;
- he said Vandergunst got off the phone nervous and crying, which the boyfriend thought was a change in attitude from earlier when he was treating the situation as a joke;
- the police then became involved;
- in cross examination, the boyfriend reiterated that Vandergunst’s first explanation to him was that Vandergunst had tried to hook up with the complainant – not that he had;
- also in cross examination, he said both he and Vandergunst occasionally drink more than they should.
(In his decision, the judge noted that the boyfriend was “a good witness and was not shaken in cross examination.”)
- evidence was presented during the trial that DNA tests were conducted on the complainant’s boyfriend, and that his semen was not found on the body of the complainant;
- DNA tests were conducted on Vandergunst and his semen was found to be in the body of the complainant.
- the court heard personal information about Vandergunst: he was born August 28, 994, raised in Exeter, has lived his entire life there, lives with his father Mark (his mother lives in London, has two siblings, has been studying at Fanshawe College (London), has been accepted at Lakewood College (Alberta) for firefighting;
- hockey is a big part of his life; last year he played Junior B for the Stratford Cullitons;
- he works part time for his father doing cleaning and blasting;
- Vandergunst and the complainant’s boyfriend have been close friends since grade 9; Vandergunst regularly stays at his friend’s residence over the years;
- Vandergunst knew the complainant but not well, having met her a few times, usually when she was with his friend (her boyfriend);
- he remembered July 19 as a day he worked out in the morning at a training facility in London, worked for his father that afternoon, and that evening went to a friend’s to drink;
- later on that same evening he and the complainant’s boyfriend took a cab to the bar in Grand Bend;
- he said he did not grab the complainant’s breasts from behind; he said at no other occasion had he done anything of that nature;
- he said he had 6-8 drinks at the bar;
- he left the bar around 2:30 a.m. and had pizza with the complainant’s boyfriend outside the bar;
- afterwards he got into a cab with his friend and the complainant;
- he started in the front seat while his friend and the complainant were in the backseat;
- after they stopped at the roadside so that he and his friend could urinate he jumped in the back with the other two;
- he decided then that he was going to hit on the complainant;
- a joke was made about having a threesome;
- he said his friend fell asleep in the backseat, at which point he and the complainant looked at each other and started groping and kissing;
- he said the complainant did not resist;
- he said the complainant touched his leg and penis while he touched her leg, all above the clothes;
- Vandergunst said at no point did she say she was not interested and she did not tell him to stop;
- when they arrived at the boyfriend’s home, Vandergunst said he had to lift the boyfriend out of the cab and into the house;
- the boyfriend went upstairs and he went downstairs;
- he said the complainant followed behind him;
- he said he jumped on a basement bed occupied by two people including the brother of the complainant’s boyfriend;
- they told him to get off and leave the room;
- he said he then went to the rec room where someone else was asleep;
- he asked that guy if he’d give up the couch for him, but was told no;
- he said he went back into the bedroom where the complainant was lying awake in the second bed;
- he said she was looking at him, so he got in beside her;
- he said she didn’t tell him to get out or stop, did not try to push him away;
- he said a conversation took place, with the complainant saying that he was her boyfriend’s close friend and that they should not be doing this;
- he said he assured the complainant that her boyfriend would not find out and that it did not matter;
- he couldn’t remember anything else about the conversation;
- he said they started groping immediately after the brief conversation without a break in the action;
- he said the complainant offered no resistance;
- he said he rubbed her breasts and probably her vagina while she was still clothed;
- he said he eventually took off his shorts but left his boxers on;
- he said she was rubbing his body and penis;
- Vandergunst said he never held the complainant down and she never said anything about not wanting to have sex;
- Vandergunst said he then got on top of the complainant and she put her arms up to help him remove her shirt;
- he fumbled to remove her bra;
- he said she lifted her buttocks so he could pull off her shorts, at no point offering resistance;
- he said he performed oral sex on her;
- he said they had sexual intercourse;
- he said he did ejaculate;
- he said the complainant seemed to enjoy the sex;
- he said afterwards she became grumpy and things got awkward after she said they should not have had sex because he was a close friend of her boyfriend;
- he said he put his shorts on and went out to the rec room where he fell asleep;
- he said later that morning he told his friend that he had hooked up with his girlfriend;
- he said his friend wasn’t surprised because he thought his girlfriend was that kind of girl;
- Vandergunst said he apologized repeatedly because his friend was now angry;
- he said he spoke again to his friend that same day, teary-eyed because he was worried about the impact his hook-up with friend’s girlfriend would have on their own relationship;
- he said he borrowed his friend’s – the boyfriend’s – phone and called the complainant and said he was sorry and she said okay a couple of times before hanging up;
- he said he cannot remember telling the complainant he was drunk or could not remember what happened;
- later in the day, he spotted the complainant and her sibling walking into the nearby O.P.P. station; he called her boyfriend who confirmed that his girlfriend was going to talk to police;
- in cross examination, Vandergunst agreed that he was 6’2” or 6’3” inches tall and weighed about 200 lbs, and that he was strong enough to do the things the complainant said he did to her;
- he agreed that he told the complainant something about having a threesome involving her, her boyfriend and himself; that there was an initial conversation about whether he and the complainant should be “doing this;” that he and the complainant had a “grumpy” conversation after sexual intercourse; that he apologized to the complainant by phone the next day; and that he couldn’t remember any other conversations with the complainant;
- he admitted he knew the complainant and his friend were a couple;
- he admitted he had a plan to hit on, and hook up with, the complainant;
- he agreed that alcohol had an impact on his memory that night;
- he agreed that he made a wrong decision to have sex with his close friend’s girlfriend;
- he agreed that he removed his shirt in front of the complainant when they got out of the cab at her boyfriend’s house;
- during cross examination, Vandergunst said you do not ask a girl if they’ll consent to sex if it’s clear that they want sex; otherwise, he did not get the “memo”;
- the judge also noted this about the cross examination: “[Vandergunst] says another odd thing in that he did not ask her if he could get in the bed because he did not think of it as her bed”;
- the judge continued: “Mr. Vandergunst was not a good witness. He displayed immaturity in his responses, for example saying that he did not get the “memo” and that he was bold when he was drunk. He also did not seem to realize how juvenile his behavior was, for example when he joked about a threesome …”
- the judge again: “In cross examination it became very clear that there was minimal communication between him and [the complainant], and Mr. Vandergunst did not seem to appreciate that. It also appears that when there were words exchanged he was not listening.”
DEFENCE WITNESSES (taxi driver, friend at the bar, other woman in bedroom):
- the taxi driver didn’t see anything of consequence going on in his cab;
- the friend at the bar in Grand Bend whom the complainant believed intervened on her behalf to stop Vandergunst said he didn’t intervene;
- the woman who was in a bedroom in the basement of the house in question said she wasn’t aware that anything had happened involving Vandergunst and the complainant; she said she saw Vandergunst that day, and that he appeared to be very drunk;
(The judge took no serious issue with the three witnesses for the defence, describing their testimonies as neutral.)
- the Crown and the defence agreed that Constable Phil Hordjick of the O.P.P. searched the bedroom and the area where the assault allegedly occurred;
- the officer found a black belt and boxers;
- the belt and boxers were seized by the police.
JUDGE BROPHY’S ANALYSIS
- he reviewed “certain principles in terms of assessing credibility and analyzing exculpatory evidence”;
- in doing so, he cited a number precedent-setting court decisions.
Among the judge’s FINDINGS:
- “I do not believe the accused [Vandergunst]”;
- “his actions were completely incongruous with ordinary behavior”;
- “he [Vandergunst] barely knew [the complainant]”;
- “[Vandergunst] knew [the complainant] was his…friend’s girlfriend”;
- “he is behaving in a predatory manner”;
- “he betrays his…friend”;
- “at some point he takes his shirt off so that he can display his physique to [the complainant…indicative of a person who is seriously intoxicated, who does not read social cues properly, who does not listen, who has low impulse control, who insists on having fun at the expense of others, who shows little respect for the persons around him and is determined to get what he wants”;
- “he is not honest with [the complainant’s boyfriend] and he apologizes to [the complainant] for what on his statement of what happened he does not need to apologize for”;
- “he became worried when he saw [the complainant] going to the police station [which] in my view is reflective of an awakening realization of what he had done.”
(Justice Brophy continued as follows:)
- “Vandergunst is not to be believed; I reject his evidence with respect to him having the consent of [the complainant] to sexual activity”;
- “it is noted that the defence does not plead honest but mistaken belief in consent, but instead says unequivocally that [the complainant] did in fact consent”;
- “the evidence of [the complainant] is powerful…she was an extremely good witness who did not shrink from what can only be described as a withering cross examination; her description of the events…is compelling”;
- “[the complainant] is an educated modern woman independent woman who acted forcefully to control the situation”;
- “Mr. Vandergunst says that [the complainant] became grumpy after the sexual intercourse [which] in my view is simply further confirmation that she did not want to participate in the sex act [and she] was unhappy because she had not consented.”
(Justice Brophy wrapped up his analysis as follows:)
“Lastly I should comment upon the argument made by the defence that [the complainant] was motivated to lie about the sexual assault because she was either not prepared to admit that what had actually happened was consensual sex or that she wanted to restore her status somehow with [her boyfriend] by pointing the blame at Mitchell Vandergunst. This is a very weak argument. As said by [the complainant] in her testimony she was not concerned about [her boyfriend], she was concerned about what had happened to her. Moreover if she wanted to avoid censure the easiest road would have been to have said nothing.
“I believe the evidence of [the complainant. For all those reasons I am of the view that the Crown has made out its case with respect to counts 2 and 3.”
(Justice Brophy then explained why he wasn’t satisfied that the Crown had proven count 1 beyond a reasonable doubt, ruling that the complainant may have been mistaken about who grabbed her in a packed, dimly lit bar.
“There will therefore be a finding of guilt on each of counts 2 and 3. Count 1 is dismissed.”