



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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. Marshall, 2013
    ONCA 113

DATE: 20130221

DOCKET: C53702

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lyle Andrew Marshall

Appellant

Rosario Romano, for the appellant

Mabel Lai, for the respondent

Heard and released orally: February 15, 2013

On appeal from the convictions entered on December 14,
    2010 by Justice John Kukurin of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was charged with ten offences arising out of conduct
    associated with a domestic dispute with his former wife, K.B.  He pleaded
    guilty to six charges of breach of recognizance and to one charge of theft
    under.  After a judge-alone trial, he was found guilty of the remaining charges
     sexual assault, uttering a death threat and breaking and entering K.B.s
    home. It is the convictions on these three offences that are the subject of
    this appeal.

[2]

Briefly, the facts are as follows.  On April 16, 2010, the appellant, in
    breach of a court order that he stay away from K.B.s home, went there and took
    H.B. for what has been referred to as an access visit.  Later that day, H.B. was
    returned to K.B. by the Childrens Aid Society.  On April 18, the appellant went
    back to K.B.s home.  K.B. testified that he broke in, sexually assaulted her,
    threatened to kill her and stole some of her belongings. The appellants
    evidence was that he was invited to K.B.s home, they engaged in consensual
    sexual intercourse, and later, during an argument, K.B. assaulted him.

[3]

The appellant raises two grounds of appeal.

[4]

First, he argues that the details of a telephone conversation between K.B.
    and the appellants step-mother should have been admitted as part of the evidence
    for the defence.

[5]

The trial judges decision not to admit this evidence was based on his
    finding that defence counsel had not complied with the requirements of s. 11 of
    the
Canada Evidence Act
.

[6]

In our view, the trial judge correctly held that K. B. had not been
    given the required degree of detail of the alleged inconsistent statement
    described by this court in
R. v. P.(G.),
(1996) 112 C.C.C. (3d)
.  The evidence the defence sought to
    elicit concerned a conversation in which it is alleged that K.B., through the
    appellants step-mother, specifically invited the appellant to her home
    ostensibly to return H.B.s diaper bag that had not been brought back with her
    on April 16.  Nowhere in this record was that important detail put to K.B.

[7]

The trial judge recognized that notwithstanding his finding of lack of
    compliance with s. 11 of the
Canada Evidence Act
, he had discretion to
    admit the evidence.  However, he declined to do so for reasons that included
    his view that the proposed evidence was of limited value and that there was no
    compelling explanation for non-compliance.

[8]

The trial judges exercise of discretion is reasonable and entitled to
    deference.

[9]

We would therefore not give effect to this ground of appeal.

[10]

Second,
    the appellant submits that the trial judge erred in his assessment of K.B.s
    credibility and that the verdict was thus unreasonable.

[11]

We
    find no error in the trial judges assessment of K.B.s credibility.  He acknowledged
    that K.B. was not a faultless witness and identified many of the concerns the
    appellant raised in argument.  He gave detailed reasons why, in the end, he
    accepted K.B.s version of events, an account, we note, that was supported by
    physical evidence. The trial judges determination of the significance of
    inconsistencies and related problems in the testimony of any witness, like any
    other matter going to credibility, must be given considerable deference on
    appeal.

[12]

Counsel
    for the appellant quite properly acknowledged that the argument of unreasonable
    verdict depended on our finding that the trial judges acceptance of K.B.s
    version of what happened at her home on April 18, amounted to reversible
    error.  Given our conclusion to the contrary, it is clear that there is no
    argument to be made that the verdict is unreasonable. We would therefore not
    give effect to this ground of appeal.

[13]

For
    these reasons the appeal as to conviction is dismissed.  We
    note that counsel for the appellant advised that the sentence appeal would not
    be pursued.

E.A. Cronk J.A.

Gloria J.
    Epstein J.A.

P. Lauwers J.A.


