



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    that could identify the complainant or a witness shall not be published in any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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vassell, 2016 ONCA 786

DATE: 20161027

DOCKET: C59054

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ferdinand McLaughlin Vassell

Appellant

Ferdinand McLaughlin Vassell, acting in person

Brian Snell, appearing as duty counsel

Susan Magotiaux, for the respondent

Heard: October 6, 2016

On appeal from the convictions entered on July 20, 2009
    and the sentence imposed on March 18, 2011 by Justice Antonio Di Zio of the Ontario
    Court of Justice.

ENDORSEMENT

[1]

This appeal relates to a sexual assault that occurred on June 2, 2007. The
    appellant was convicted on July 20, 2009 of sexual assault causing bodily harm,
    unlawful confinement, uttering a death threat, threatening bodily harm while
    committing a sexual assault, overcoming resistance by choking, assault and
    breach of probation. The appellant was sentenced on March 18, 2011 to 13.7
    years in custody after credit for pre-trial custody.

[2]

The appellant appeals the convictions and the sentence imposed.

The conviction appeal

[3]

The appellant raises a single issue with respect to the conviction
    appeal. He challenges the treatment of certain evidence under s. 276(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, which provides in part:

[E]vidence that the complainant has engaged in sexual
    activity, whether with the accused or with any other person, is not admissible
    to support an inference that, by reason of the sexual nature of that activity,
    the complainant

(a) is more likely to have consented to the
    sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

[4]

In the course of her evidence, the complainant, N.G., testified that she
    would not have consented to have sex with the appellant because she had
    previously decided that she would not resume sexual activity within three
    months of having given birth. However, in the course of giving information at
    the hospital about the assault, she told the nurse she had been sexually active
    and had had intercourse two weeks before the incident in question. Defence
    counsel wanted to cross-examine her on this conflict in her evidence. The Crown
    objected on the basis of s. 276.

[5]

The trial judge did not allow defence counsel to cross-examine the
    complainant about this conflict. He held that the proposed cross-examination
    would go to credibility  a prohibited area in s. 276. The trial judge also noted
    that the defence had brought a written application under s. 276 several months
    earlier and had adjourned it.

[6]

The appellant argues the trial judge ought to have adopted the approach
    taken by this court in
R. v. Harris
(1997), 102 O.A.C. 374 (C.A.),

[1997] O.J. No. 3560, at para. 50: The probative value of the evidence
    did not depend upon resort to the now debunked myths suggesting some connection
    between prior sexual activity and a lack of veracity but in its ability to
    contradict specific evidence given by the complainant that was central to her
    version of the relevant events. The thrust of the cross-examination was not
    going to be the complainants sexual activity, but her credibility, and it
    would have been proper cross-examination in the context. Had her credibility
    been shaken, then it might have proved to be a tipping point in assessing the
    complainants evidence in the appellants favour. The appellant seeks a new
    trial on this basis.

[7]

The Crown points out that some months earlier in the pre-trial period
    the appellant had initiated an application under s. 276(2) for leave to
    cross-examine the complainant on the conflict in her evidence about her
    willingness to engage in intercourse at that particular time but adjourned it.
    Appeal counsel, who was not trial counsel, asserts nothing should be taken from
    the earlier adjournment of the motion. He argues, as a matter of principle,
    that s. 276 simply does not apply, so an application was not necessary.
    However, he conceded it would have been entirely open to trial counsel to
    pursue the s. 276 application before the trial judge when the Crown objected to
    the evidence.

[8]

We agree with the Crowns submission that the process prescribed by
    s. 276 for the admission of evidence of prior sexual history is mandatory.
    Perhaps the appellant would have succeeded on the s. 276 application had it
    been pursued, but it was not. That is a consequence of a tactical decision made
    at trial. Accordingly, this ground of appeal against conviction has no merit.

The sentence appeal

[9]

This is not a case governed by the current statutory 1.5:1 ratio for
    determining credit for time served.

[10]

It is common ground the appellants pre-trial custody was 1291 days. The
    appellant raises two issues about the sentence. First, the trial judge only
    gave credit for time served at the ratio of 1:1, not 2:1. The appellant argues
    that there should be a 2:1 credit because there was no available programming
    during the time of pre-trial custody.

[11]

The determination of the credit ratio is a discretionary decision. The
    trial judge instructed himself that he had discretion to give no credit for
    pre-trial custody, or credit at a rate of 2:1, or higher. He noted that the
    trial proceeded more slowly than he would have liked, but did not blame the
    appellant for that.

[12]

The trial judge noted that he would normally give credit on a 2:1 basis
    but, he said:

In Mr. Vassells case, I am not going to follow the usual rule
    but I will give credit on a one for one basis for two reasons.

1. Based on the information I have today, Mr. Vassell is
    unlikely to get parole because of his past breaches of court orders and a
    record of escaping custody and further because of the high risk of recidivism.

2. Based on the information I have today, he poses a serious
    danger to society and therefore he should remain in custody as long as legally
    possible.

The evidence to which the trial judge was referring was
    the psychiatric reports. His reasons are consistent with the decision of this
    court in
R. v M.O.
, 2016 ONCA 236, 348 O.A.C. 216, at para. 31.

[13]

The appellants second issue regarding sentence is the apportionment of
    pre-trial custody. Trial counsel argued all of the pre-trial custody should be
    apportioned to the charges in this appeal, and appeal counsel argues the same. The
    trial judge did not take the approach requested by trial counsel. Instead he
    took half of the available credit into account in determining the length of the
    sentence. This amounted to 646 days, which he rounded up to 1.8 years. The
    trial judge left the other half for the case to be decided by Justice Cleary, which
    is the subject of the companion appeal (C59014), and in which the appellant was
    declared a dangerous offender and sentenced to indeterminate detention. Counsel
    points out the credit became useless once the sentence of indeterminate
    detention was imposed.

[14]

The trial judges decision to apportion half of the pre-trial custody credit
    to this case is also discretionary. The appellant was not able to point to an
    error of principle in the trial judges apportionment.

[15]

The conviction appeal is dismissed. Leave to appeal sentence is granted,
    but the sentence appeal is also dismissed.

J.C. MacPherson J.A.

Gloria Epstein J.A.

P. Lauwers J.A.


