



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    that could identify the complainant or a witness shall not be published in any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, 2015 ONCA 518

DATE: 20150709

DOCKET: C57220

Strathy C.J.O., MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Marshall

Appellant

Alan D. Gold and Melanie Webb, for the appellant

David Finley, for the respondent

Heard: July 6, 2015

On appeal from the conviction entered on April 29, 2013
    and the sentence imposed on July 3, 2013 by Justice R. Reid of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of one count of sexual assault and sentenced
    to eight months imprisonment (less six days pretrial custody.)  He appeals his
    conviction and sentence and seeks to introduce fresh evidence.

[2]

The appellant is a pediatrician whose practice focused on children with
    behavioural problems. He was charged with 32 counts of sexual assault and sexual
    interference. Twenty-nine of those counts were based on allegations involving
    20 of his former patients.  They were all young boys treated by the appellant
    prior to or during puberty.  The remaining three counts involved two
    complainants who were not patients.

[3]

Following a detailed analysis, the trial judge acquitted the appellant
    of all counts relating to the patients, and of two counts relating to one of
    the non-patients. The trial judge convicted the appellant of sexual assault
    with respect to one count relating to the other non-patient complainant, PM.

[4]

PM met the appellant when he was a grade nine high school athlete.  The
    appellant was involved with students as a medical doctor and a wrestling coach.
    The appellant also took part in a Bible study group for students at the school.
    PM had a challenging home life. At the age of 15, he was living on his own in a
    boarding house.  The appellant befriended him, gave him food, gifts, football
    cleats, a camping trip and regularly invited him and his friends to his home.

[5]

PM testified about three events which gave rise to the allegations in
    question:  one in the kitchen; another involving his sore back; and a third
    event on the couch.  The appellant also testified about each incident.

[6]

The kitchen incident happened at the appellants home.  PM was 16 years
    old. He testified that he was standing in the doorway to the kitchen; the
    appellant came to him from behind, slid his hand under his shorts and grabbed
    his genitals.  The appellant testified that PM had made a smart aleck remark
    and he grabbed him by the waist as if to tackle him.  This type of rough-play
    was routine in the appellants home. When PM accused him of touching his
    genitals, the appellant said he told him he was sorry. The appellant testified
    that he apologized, not because he touched his genitals, but just because he
    wanted the matter resolved. He denied touching PMs genitals.

[7]

The back incident occurred later when PM was 18 years old.  PM asked the
    appellant to look at his sore back. He testified that the appellant asked him
    to take off his shirt and then to bend over in front of him.  He said the
    appellant rubbed his crotch against PMs behind. The appellant testified that
    he might have bumped into PM but there was no grinding activity.

[8]

The couch incident, according to PM, occurred when he was alone in the
    appellants house sitting on the couch with him. He said that the appellant
    hugged him and then lay on top of him.   PM managed to break free and ran out.
    PM testified that the appellant said that he was just hugging him and I am not
    trying to fuck you yet.  The appellant denied these events.

[9]

The trial judge reviewed this evidence and said this:

Once again, I have applied the
R. v. W. (D.)
analysis.
    I do not find [the appellants] evidence convincing as to his version of any of
    the three incidents. There appears to have been a pattern of behaviour in the
    incidents described. [The appellants] explanation for any of the three
    incidents does

not leave me with a reasonable doubt nor when I
    consider the evidence as a whole relating to each of the three incidents am I
    left with a reasonable doubt as to the offence charged.

The Conviction Appeal

[10]

The
    appellant raises several grounds of appeal.  They can be grouped into five
    general categories:  (1) the trial judges reasons were insufficient to support
    a conviction; (2) the trial judge misapplied the
WD
analysis; (3) the
    trial judge misapprehended the evidence; (4) the trial judge improperly applied
    similar fact reasoning; and (5) the trial judge did not adequately assess the
    frailties of PMs evidence.  We address each of these issues.

[11]

The
    appellant submits that the trial judges reasons are insufficient because they
    do not make it clear which of the three incidents formed the basis for the
    conviction.  We do not agree.  A fair reading of the trial judges reasons
    demonstrates that he rejected the evidence of the appellant and accepted the
    evidence of PM in connection with all three events.  Count 20 of the indictment
    does not particularize the circumstances of the sexual assault. Once the trial
    judge was satisfied beyond a reasonable doubt that the three events took place
    as described by PM, the elements of the offence were made out.

[12]

The appellant submits that the trial judge erred in omitting
    the third step of
R. v. W. (D).
We do not agree. The trial judge  who
    is presumed to know the law  referred to
WD
more than once in the
    reasons at large.  The trial judge rejected the appellants testimony and
    indicated that the evidence in its entirety did not raise a reasonable doubt.  
    He therefore determined that the evidence of the appellant did not raise a
    reasonable doubt and that he was satisfied on the whole of the evidence that
    the Crowns case had been established beyond a reasonable doubt.

[13]

The
    appellant submits that the trial judge misapprehended the evidence of the
    apology given by the appellant to PM after the kitchen incident. The trial
    judge found it strange that he would apologize for an event that did not take
    place. The appellant submits that he was not apologizing for his conduct, but
    rather expressing regret that the complainant thought it was inappropriate. He
    testified that he was also trying to end the issue.  It was open to the trial
    judge to be sceptical of the appellants testimony in connection with an
    apology.

[14]

The
    appellant refers to the trial judges statement that There appears to have
    been a pattern of behaviour in the incidents described.  It is submitted that
    he applied impermissible similar fact reasoning.  The Crown submits that the
    pattern referred to is in regard to the appellants explanation for the events,
    not a pattern of behaviour with respect to the allegations.  We accept that
    there are two ways of reading the passage referred to.  Even if we agreed with
    the appellants interpretation, we would apply the curative proviso of section
    686(1) (b) (iv) of the
Criminal Code.
The alleged perpetrator and
    victim are the same in each of the incidents.  A similar fact application would
    most certainly have been allowed.

[15]

The
    appellant submits that the trial judge did not adequately assess the frailties
    of PMs testimony and was unfairly critical of the appellant.  In particular,
    he takes issue with:  the trial judges minimization of PMs description of the
    order of events; the change in PMs testimony about whether the appellant had
    an erection during the back incident; the trial judges views as to the
    appellants account of PM seeking medical help for his back; the trial judges
    treatment of the blood test ordered by the appellant; and the trial judges
    description of the appellants evidence as more vague.  The appellant is
    seeking to have this court retry the factual findings made by the trial judge.
    There was an evidentiary basis for each finding he made.  We would not give
    effect to this ground.

Fresh evidence application

[16]

The
    appellant seeks to admit evidence showing that PM suffered from PTSD, anxiety
    and depression following his return from active military service in in 2010 and
    indulged in alcohol and cocaine to cope.  The appellant also seeks to admit
    evidence that, in 2006, PM had been charged with two counts of assault causing
    bodily harm and two counts of assault, but a stay of proceedings was entered
    after a co-accused pleaded guilty.

[17]

We
    do not admit the fresh evidence.

[18]

The
    principles governing the admissibility of fresh evidence on appeal are outlined
    in
R. v. Palmer
, [1980] 1 S.C.R. 759 at p. 775.
    The applicant must satisfy four criteria: (i) the evidence could not have
    been adduced at trial; (ii) the evidence must be relevant in that it bears on a
    decisive or potentially decisive issue; (iii) the evidence must be reasonably
    capable of belief; and (iv) the evidence must be such that, if believed, it
    could reasonably, when taken with the other evidence adduced at trial, be
    expected to have affected the result.

[19]

The
    proposed evidence does not meet this test. It was available at the time of
    trial in that it was posted on the internet. It was known at the time of trial
    that PM had served in a particularly dangerous tour of duty.  He was not
    questioned about the effects of this activity, about whether he had counselling
    or whether he had difficulties in this regard.  The proposed evidence does not
    bear on a potentially decisive issue in the case: as the Crown points out, the
    divergence in the testimony of the appellant and of PM is extraordinarily
    minor. We note that the stay of the criminal charge would be, after a year,
    deemed to have not been laid. The fresh evidence would be unlikely to have
    affected the outcome.

Sentence Appeal

[20]

The
    appellant submits that the trial judge erred in not granting a conditional
    sentence. The submissions of the appellant with respect to section 11 (i) of
    the
Charter
are academic.  The sentencing judge found that a
    conditional sentence was available but declined the appellants request.

[21]

We
    see no reason to interfere with the trial judges exercise of discretion in
    this regard. The appellant has failed to identify an error in principle, or to
    demonstrate that the sentence is demonstrably unfit. The eight-month custodial
    sentence was not demonstrably unfit.  We note that defence counsel submitted
    that six-nine months in custody would be reasonable.

Summary

[22]

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

G.R. Strathy
    C.J.O.

J.C. MacPherson
    J.A.

M.L. Benotto
    J.A.


