



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(1), (1.1), (2), or (3) of the
Criminal Code
shall
    continue.  These sections of the
Criminal Code
provide:

486(1)          Any proceedings against an accused
    shall be held in open court, but the presiding judge or justice may, on
    application of the prosecutor or a witness or own his or her own motion, order
    the exclusion of all or any members of the public from the court room for all
    or part of the proceedings, or order that the witness testify behind a screen
    or other device that would allow the witness not to be seen by members of the
    public, if the judge or justice is of the opinion that such an order is in the
    interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made, during the
    proceedings, to the presiding judge or justice or, before the proceedings
    begin, to the judge or the justice who will preside at the proceedings or, if
    that judge or justice has not yet been determined, to any judge or justice
    having jurisdiction in the judicial district where the proceedings will take
    place.

(2)     In determining whether the order is in the
    interest of the proper administration of judge, the judge or justice shall
    consider

(a) societys interest in encouraging the
    reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests of witnesses
    under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and
    candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their
    security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants
    who are involved in the proceedings;

(f) whether effective alternatives to the making
    of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the
    proposed order; and

(h) any other factor that the judge or justice
    considers relevant.

(3)     If an accused is charged with an offence
    under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or
    section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the
    accused applies for an order under subsection (1), the judge or justice shall,
    if no such order is made, state, by reference to the circumstances of the case,
    the reason for not making an order.

(4)     No adverse inference may
    be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486;
    R.S., 1985, c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c.
    23 (4
th
Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45,
    s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41,
    ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s.
    4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marshall, 2017 ONCA 1013

DATE: 20171221

DOCKET: C61358

Juriansz, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Marshall

Appellant

Alison Craig, for the appellant

Deborah Krick, for the respondent

Heard: June 1, 2017

On appeal from the conviction entered on April 29, 2015 and
    the sentence imposed on August 11, 2015 by Justice Brian W. Abrams of the
    Superior Court of Justice, sitting with a jury.

Pepall J.A.:

Introduction

[1]

The appellant was convicted of sexual assault, sexual assault causing
    bodily harm, and forcible confinement in a trial before a judge and jury.  He
    received a sentence of seven years imprisonment.

[2]

He appeals from the convictions for sexual
    assault and sexual assault causing bodily harm.  He has abandoned his sentence
    appeal.

[3]

For the reasons that follow, I would dismiss the
    appeal.

Background Facts

[4]

In November 2012, the complainant, age 19,
    moved into the appellants apartment in Brockville.  Their relationship became
    sexual and the complainant testified that she found herself falling in love
    with the appellant.  Things changed in December 2012 when he began to use
    marijuana and cocaine heavily.  He started behaving strangely, talking daily to
    himself, and accusing the complainant of being crazy and twisted.  He
    controlled the complainants contact with family members and set up his
    computer to monitor her text messages and phone calls.

[5]

On January 15, 2013, the complainant was in the
    bathroom doing her makeup and hair when the appellant entered and said: Suck
    my dick bitch.  His pants were down and he would not let the complainant leave
    the bathroom.  He only allowed her to leave after she did fellatio on him for
    about 40 minutes.  At trial, this was referred to as the bathroom incident.

[6]

The complainant decided to move out.  On the
    evening of January 17, 2013, she was packing her belongings in the living
    room.  The appellant came up behind her.  His pants were down and he forced his
    penis into her anus, which was dry.  The complainant was in a lot of pain and
    cried for him to stop, but he continued and also filmed the interaction on his
    smartphone.  He then brought her into the bedroom and continued to have anal
    intercourse.  I will refer to this incident as the anal penetration incident.

[7]

When the appellant stopped anal intercourse, the
    complainant ran from the apartment.  She went to her sisters house, but no one
    was home.  She next went to the house of a friends mother.  The complainant
    was distraught, in pain, and bleeding from the anus.  She had to use a sanitary
    napkin to control the bleeding.  She told her friends mother that the
    appellant had raped her.

[8]

The complainants mother picked her up and took
    her to the hospital.  The sexual assault nurse observed a one centimeter tear
    to the complainants anus.  The injury continued to bleed for two to three
    weeks after the incident.  The complainant also had bruises and bite marks on
    her neck, which were photographed.  The complainant did not initially make any
    report to the police because she said she was afraid of the appellant.

[9]

The complainant moved out west to Alberta to live
    with her father.  She made a report to the RCMP in Alberta in March 2013.  She
    moved back to Brockville in early May, but did not contact the local police. 
    In June 2013, the Brockville police spoke with her and she gave them a
    statement.  On October 29, 2013, the police arrested the appellant and charged
    him with the offences for which he was convicted.

[10]

At trial, the defence took the position that the
    incidents never occurred and that the complainant was lying.  The appellant did
    not testify.  The jury convicted the appellant of
one count of each of
    the following offences: sexual assault; sexual assault causing bodily harm; and
    forcible confinement.  The jury acquitted the appellant of two additional
    counts of assault and assault with a weapon.  These counts were unrelated to
    the counts of which the appellant was convicted.

Grounds of Appeal

[11]

The appellant raises three grounds of appeal.

(i)

Timing of Complaints

[12]

First, he submits that the trial judge erred in
    the instructions given to the jury on the timing of complaints in sexual
    assault cases.

[13]

It took the complainant nearly two months to
    report the offences to the police.  In his closing address to the jury, defence
    counsel told the jury that there is no huge significance to when you go to the
    police.  But he also asked the jury to consider the complainants delay in
    reporting as one of several factors that ought to adversely affect the
    complainants credibility and raise a doubt about the appellants guilt.

[14]

At the pre-charge conference both counsel agreed
    to the judges suggestion that he would be charging the jury in accordance with
R. v. D.(D.)
,
2000 SCC 43, [2000] 2 S.C.R. 275.  Defence counsel subsequently
    reviewed the proposed instruction without objection.

[15]

Consistent with the language proposed at the
    pre-charge conference, in his charge to the jury, the trial judge stated:

The timing of disclosure of sexual assault
    signifies nothing.  Rather, the timing of disclosure depends upon the
    circumstances of the particular victim.  There is no inviolable rule on how
    people who are the victims of trauma, like sexual assault, will behave.



[A]gain, there is no inviolable rule on how
    people who are victims of trauma, like sexual assault, will behave.  Any rules
    once believed to be sound are based on what we now understand to be stereotypes
    and myths.

In assessing the credibility of a complainant,
    the timing of the complaint is simply one circumstance in the factual mosaic of
    a particular case.  A delay in disclosure or the fact that a complainant
    remains in an abusive relationship, standing alone, will never give rise to an
    adverse inference against the credibility of the complainant.

[16]

The appellant submits that the trial judges
    instruction that the timing of disclosure signifies nothing was in error as
    timing is a fact that may be considered when assessing a complainants
    credibility.  Moreover, the appellant submits that the trial judge compounded
    the error in instructing the jury to disregard defence counsels comments in
    his closing on why it took the complainant so long to report.  He instructed
    the jury:

With reference to specific examples, Mr.
    Barnes asked you to question why [the complainant] did not call the police
    following the bathroom incident.  Why did she leave town and move to Alberta
    without contacting the local authorities?  Further, if a guy starts acting
    badly, why not just leave?

Firstly, as I instructed you earlier, you must
    not speculate about what evidence there might have been or permit yourselves to
    guess or make up theories without evidence to support them.

[17]

The appellant submits that this instruction effectively
    told the jury that they were precluded from questioning the complainants
    evidence as counsel had suggested.

[18]

I would not give effect to either element of
    this ground of appeal.

[19]

The instruction given by the trial judge
    duplicated the language in
R. v. D.(D.)
and,
    while not dispositive, mirrored the language in the draft instruction shared
    with counsel and to which no objection was taken.  In addition, the trial judge
    instructed the jury that in assessing the credibility of a complainant, the
    timing of the complaint is a circumstance in the factual mosaic of a particular
    case.  He also noted that there is no inviolable rule on how victims of sexual
    assault will behave.  There was no error in this regard.

[20]

Nor was there any error with the trial judges
    instruction to the jury on defence counsels jury charge questions.  The trial
    judge instructed the jury to avoid speculating about what evidence there might
    have been, or to guess or make up theories without evidence in support.  This
    was necessary because of defence counsels closing address, which urged the
    jury to question why the complainant did not provide a report to the police
    sooner than she did.

[21]

Although it was open to the defence to raise the
    delay, the trial judges instruction ensured that the evidence did not resort
    to speculation or impermissible stereotypical reasoning.  The appellants defence
    did not allege a specific motive to fabricate.  His defence was that the
    complainant was lying and these events did not occur.  Again, the language the
    trial judge used was similar to that in
R. v. D.(D.)
and served to avoid the trap of stereotypical thinking identified
    by the Supreme Court in that case.  Again, although not dispositive, no
    objection was taken by defence counsel.

(ii)

Review of Evidence in Support of Counts

[22]

Second, the appellant submits that the trial
    judge erred in reviewing with the jury evidence relating to two separate
    factual scenarios

the bathroom
    incident and the anal penetration incident

on both the sexual assault and the sexual assault causing bodily
    harm counts.  This allowed for the possibility that the appellant was convicted
    of both counts even though the jury might only accept that one of the scenarios
    occurred.

[23]

The appellant faced one count of sexual assault
    between January 1 and January 17, 2013 (count two), and another of sexual
    assault causing bodily harm on January 17, 2013 (count four).  The counts arose
    from separate alleged assaults: count two related to the bathroom incident of
    January 15, 2013; and count four related to the anal penetration incident of
    January 17, 2013.  The unlawful confinement count related to the bathroom
    incident.

[24]

The appellant argues that the trial judges
    charge improperly permitted the jury to convict the appellant of both counts if
    satisfied that either incident took place.  He complains that the trial judge
    did not instruct the jury that, if they only found one of the two incidents to
    have occurred, they could not convict on both counts.  Put differently, the
    trial judge allowed for the possibility that the appellant be convicted of both
    offences arising out of the same incident, when each arose out of discrete
    incidents.

[25]

The Crown responds that its opening and closing
    submissions were clear.  The jury was told from the outset that the appellant
    was charged with two very distinct allegations of sexual assault.  In its
    closing, the Crown used graphic slides depicting the separate counts and the
    separate incidents, describing count two as the bathroom incident sexual
    assault, accompanied with a list of details, and count four as the rape of
    the complainant  sexual assault causing bodily harm, accompanied with the
    factual details relating to that count.

[26]

The Crown also argues that count four, sexual
    assault causing bodily harm, had no lesser included offence of sexual assault
    and that this ensured that the jury would only convict the appellant of counts
    two and four if they concluded both sexual incidents occurred.  The essential
    element of bodily harm could only apply to count four.  Sexual assault was not
    left as a lesser included offence so the jury would have known that the
    bathroom incident could not be a basis to convict on count four.

[27]

In
    reviewing the adequacy of the trial judges instructions on this issue, the
    focus is on functionality and fairness; it is not a search for perfection: see
R.
    v. Jacquard
, [1997] 1 S.C.R. 314, at paras. 2 and 62.  Just as a jury
    charge must be evaluated in its entirety, and not in a piecemeal fashion, the
    charge as a whole must be considered in light of how the trial was conducted,
    including the addresses of counsel.  This point was made in
R. v. Daley
,
    2007 SCC 53, [2007] 3 S.C.R. 523, in which Bastarache J. said, at para. 58:

Finally, it should be recalled that the charge to the jury
    takes place not in isolation, but in the context of the trial as a whole.
Appellate
    review of the trial judge's charge will encompass the addresses of counsel as
    they may fill gaps left in the charge
Furthermore, it is expected of
    counsel that they will assist the trial judge and identify what in their
    opinion is problematic with the judge's instructions to the jury. While not
    decisive, failure of counsel to object is a factor in appellate review. The
    failure to register a complaint about the aspect of the charge that later
    becomes the ground for the appeal may be indicative of the seriousness of the
    alleged violation. [Emphasis added. References omitted.]

[28]

There
    are limits on the extent to which the addresses of counsel may be relied upon
    in this context.  Sometimes, such reliance is inappropriate: see
R. v.
    Prokofiew
, 2012 SCC 49, [2012] 2 S.C.R. 639, at paras. 86-88; and
R. v.
    Rodgerson
, 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 35-37.  Again, the
    test is whether, overall, the charge was fair and met the functional
    requirements set out in the
Jacquard
and
Daley
line of cases.  At
    para. 127 of
R. v. Flores
, 2011 ONCA 155, 274 O.A.C. 314, Watt J.A.
    said:

Jury charges do not take place in isolation, rather [they] are
    an integral part of the trial as a whole. They follow the addresses of counsel
    where, as here, each marshalls [
sic
] the salient features of the
    evidence in support of the position she or he advances.
The test, one of
    fairness, was met here
. [Emphasis added.]

See also:
R. v. Stubbs
, 2013 ONCA 514, 309
    O.A.C. 114, at paras. 137-138;
R. v. Saleh
, 2013 ONCA 742, 314 O.A.C.
    60, at para. 143;
R. v. Salah
, 2015 ONCA 23, 328 O.A.C. 333, at para.
    112; and
R. v. Speers
, 2017 ONCA 333, 347 C.C.C. (3d) 401, at paras.
    27-30.

[29]

In
    this case, the trial judges instructions fell short of the perfection
    standard.  Indeed, standing alone, I would consider them to be inadequate on
    this issue.  However, in the light of the trial as a whole, it cannot be said
    that the charge was unfair, or that the jury was misled in the manner suggested
    by the appellant.

[30]

The
    trial judge should have kept the evidence in relation to the bathroom incident
    and the anal penetration incident separate.  That is, the trial judge should
    not have referred to the evidence bearing on the anal penetration incident
    while reviewing the elements of sexual assault relating to the bathroom
    incident (count two).  Similarly, he should not have referred to evidence of
    the bathroom incident while reviewing the elements of sexual assault causing
    bodily harm relating to the anal penetration incident (count four).  Crown
    counsel at trial recognized the potential for confusion that this presented and
    brought it to the trial judges attention at the morning break, immediately
    after he had finished his instructions on count two.

[31]

Ideally,
    the trial judge would have acceded to Crown counsels concern and clarified
    things for the jury.  However, his failure to do so was not fatal.  I reach
    this conclusion for the following four reasons.

[32]

First,
    it would not have been lost on the jury that the trial centred on two separate
    incidents of sexual assault  one involving forced oral penetration, and the
    other involving a particularly brutal anal rape with demonstrable and
    disturbing physical consequences for the victim.  The two incidents were
    completely different and were alleged to have occurred on different days.

[33]

Second,
    and as noted above, the Crowns opening and closing addresses to the jury made
    it clear that there were two separate sexual assaults alleged  the bathroom
    incident and the incident of anal penetration.  Crown counsel at trial utilized
    demonstrative aids (
i.e.
slides) to illustrate the two incidents and
    summarized the different evidence that applied to each.

[34]

Third,
    at trial, defence counsel made no objection on this issue when reviewing the draft
    charge or even after the Crown flagged the issue for the trial judge.  While
    the failure to object is not determinative, it does reflect the fact that, from
    the perspective of the defence, the jury was adequately instructed:
Daley
,
    at para. 58.  It is clear that defence counsel was not concerned about the
    potential for confusion now raised on appeal.

[35]

Fourth,
    as is typically the case, the jury was invited to submit questions to the trial
    judge if it required clarification on any matter.  The jury did ask a question
    concerning access to prior statements used to cross-examine two Crown
    witnesses, but it sought no further direction on this aspect of the charge.

[36]

In
    reality, the trial, while very serious, was quite straightforward, involving
    two separate incidents of sexual assault.  In the absence of any defence
    evidence, the jurys equally serious but straightforward task was to determine
    whether either or both incidents were proved beyond a reasonable doubt.  By the
    end of the trial judges instructions, the jury was properly equipped to make
    these determinations.  When considered in the light of the trial as a whole,
    with particular emphasis on the addresses of counsel, the jury was adequately
    instructed on the requirements for separate verdicts on the two incidents and
    the evidence that pertained to each of them.

[37]

I would dismiss this ground of appeal.

(iii)

Balanced Jury Charge

[38]

Third, quite apart from the foregoing, the
    appellant submits that the charge was unfair, unbalanced, and failed to address
    the inconsistencies in the evidence of the complainant.

[39]

I disagree.

[40]

The defence did not call any evidence and
    therefore the trial judges review of the evidence necessarily consisted of
    that called by the Crown.  Furthermore, the defence closing address, which
    detailed all the alleged inconsistencies in the complainants evidence, took
    place the day before the trial judges charge to the jury.  Although the trial
    judge did not engage in a full scale repetition of the alleged inconsistencies,
    he advised the jury of the defence position.  Read as a whole, there was no
    unfairness in the charge.  Presumably the defence was of the same view as
    counsel advised that he had no concerns about the review of the evidence or the
    description of the defence position contained in the trial judges charge.

Disposition

[41]

For these reasons, I would dismiss the appeal.

Released:

SEP                                                 S.E.
    Pepall J.A.

DEC 21 2017                                   I
    agree R.G. Juriansz J.A.

I
    agree G.T. Trotter J.A.


