



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), (2.1), (2.2), (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    that could identify the victim or a witness shall not be published in any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, 171.1, 172, 172.1, 172.2,
        173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
        286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
        it read at any time before the day on which this subparagraph comes into force,
        if the conduct alleged involves a violation of the complainants sexual
        integrity and that conduct would be an offence referred to in subparagraph (i)
        if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
        s. 22(2), effective December 6, 2014 (Act, s. 49).



(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(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 victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18.

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, 2022 ONCA 84

DATE: 20220201

DOCKET: C68029

Pardu, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Richard Marshall

Appellant

Vanessa Carew, for the appellant

Caitlin Sharawy, for the respondent

Heard: January 20, 2022 by video conference

On appeal from the conviction entered on April 5, 2019
    and the sentence imposed on November 21, 2019 by Justice Michelle OBonsawin of
    the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals his convictions for sexual assault, common assault,
    and mischief. He also seeks leave to appeal his global sentence of four years.

[2]

The complainant and the appellant were long-time acquaintances who
    reconnected on Facebook. They made plans to get together at the appellants
    apartment on the evening of October 19, 2019 to watch videos, drink, and smoke
    pot.

[3]

The appellant met the complainant at a nearby bus stop around 10 p.m. and
    they walked to his apartment. Once at the apartment, the two sat together on
    the living room couch, watched videos, drank, and smoked. On the complainants
    evidence, at one point the appellant kissed her. She did not reciprocate, and
    told him that was not what the evening was about. Later, on three or four
    occasions when she had to lean over the back of the couch to plug in her phone,
    he touched her rear. Each time she reproved him, but did not make a big deal of
    it.

[4]

At some point the evening began to sour and the appellant left the couch
    and went to his room. The complainant was unsure whether he would return. The
    appellants roommate testified that the complainant came to her room and told
    her that the appellant had ditched her. They commiserated, and the roommate
    gave the complainant a cigarette. The complainant returned to the living room
    couch and occupied herself by taking selfies, the last of which was timestamped
    1:02 a.m. The complainant surmised the appellant had gone to his room to sleep
    it off and would not be coming back. As it was late and she was unsure of how
    to get home at that time of night, she decided to sleep on the couch.

[5]

Shortly after she took the last selfie, however, the appellant returned.
    The trial judge accepted the complainants evidence that the appellant suddenly
    approached her and choked her for about 5 seconds, using one hand. She fought
    him off and fell to the floor. He told her to get out. She told him that she
    needed time to sort out how to get home. Her phone only worked with Wi-Fi, and
    the battery would not hold a charge for very long and needed to be frequently
    plugged in.

[6]

She again reached over the back of the couch to reach the electrical
    outlet and plug her phone charger in. The trial judge accepted the
    complainants evidence that the appellant came behind the complainant, pulled
    her sweatpants down, inserted his penis in her butt, and thrust three or four
    times until she was able to push him off, and found that the appellant had anally
    penetrated the complainant. The trial judge also found that the appellant
    pulled the necklace from the complainants neck, causing its pendant to fall
    off.

[7]

The complainant quickly gathered her things and fled. She inadvertently
    took a photo with her phone immediately outside the apartment door. It was
    timestamped shortly after 2 a.m. and showed her to be distraught. She fled the
    building, got lost, and collapsed on the sidewalk where she was found by a
    stranger who took her in and helped her place a 911 call. The claimant went to
    the hospital, where a sexual assault kit was administered. DNA matching the
    appellant was found on her external genitalia and left breast. An anal swab was
    inconclusive for presence of DNA matching the appellant.

[8]

On the appellants account of events, they had engaged in consensual
    kissing with increasing intensity, but never any form of sexual intercourse. He
    denied choking the complainant, breaking her necklace, or sexually assaulting
    her. He claimed that the complainant was upset that he had ditched her, and she
    began trashing the apartment before he had to physically eject her.

[9]

The only other witness to what transpired was the appellants roommate,
    who stayed in her room for the most part. She testified that the complainant
    had knocked on her door looking for the appellant after the appellant had
    withdrawn to his room. She was later awakened by hearing the complainant yelling
    how could you do this and get off me.

Issues:

[10]

The
    appellant argues that the trial judge erred in four respects:

1.

Misapprehending the DNA evidence and finding that it corroborated the
    claim that the appellant had sexually assaulted the complainant;

2.

Failing to resolve material inconsistencies in the Crowns evidence;

3.

Ignoring contradictory post-offence conduct by the complainant;

4.

Convicting the appellant of mischief in the absence of evidence capable
    of supporting a conviction.

[11]

With
    respect to the sentence appeal, the trial judge is said to have made three
    errors:

1.

Failing to account for custody served between sentencing submissions and
    the date of sentence;

2.

Taking into account aggravating factors that had not been proven; and

3.

Effectively sentencing the appellant for aggravated assault rather than
    common assault.

Analysis

[12]

With
    respect to the appeal against conviction, as we explain below, we do not agree
    that the trial judge made the errors alleged except with respect to the
    conviction for mischief, which we set aside. We also dismiss the appeal against
    sentence, with the exception of the failure to give credit for time served
    between the sentencing submissions and imposition of sentence, which is
    conceded by the Crown.

(1)

The DNA evidence

[13]

The
    trial judge found that the DNA evidence corroborated the complainants
    testimony. The appellant argues that the DNA evidence was neutral, and not
    capable of corroborating that an assault took place, as opposed to consensual
    activity.

[14]

We
    disagree. We understand the trial judge to have come to the conclusion that the
    evidence of the appellants DNA on the complainants external genitalia was to
    some degree confirmatory of the complainants testimony that the appellant had anally
    penetrated her, which it was. The appellant suggested that perhaps his DNA had
    transferred from his hand to hers, and then from her hand to her genitalia.
    This theory of transfer was not supported by the expert evidence and the trial
    judge made no error in rejecting it. It would have been better for the trial
    judge to have stated that the DNA evidence was confirmatory of an element of
    the offence  that some sexual activity had taken place  rather than corroborative
    of an offence having been committed. Her wording could be misinterpreted as suggesting
    she believed the presence of DNA was conclusive that the appellant had
    committed a sexual assault, but the reasons as a whole do not support such a
    reading, and we do not agree that she erred.

(2)

Failure to resolve material consistencies

[15]

The
    appellant argued that the trial judge engaged in differential scrutiny of
    evidence throughout, faulting the appellant for all inconsistencies in his
    evidence while ignoring or failing to resolve material consistencies in the
    Crowns evidence.

[16]

One
    example is the trial judges treatment of the evidence of the registered nurse
    who examined the complainant. The trial judge found that some of her evidence corroborated
    the complainants version of events. The appellant argues that the trial judge
    should have treated all of it as neutral, except for evidence that was
    inconsistent with the complainant suffering injury, which the trial judge
    should have treated as corroborating the appellants version of events. The
    complainant had said she had bleeding cuts on her fingers, but the nurse did
    not record any bleeding. There was no apparent rectal injury. The complainant
    ticked a box on an intake form indicating the appellant had ejaculated inside
    her, but there was no evidence of spermatozoa found.

[17]

The
    trial judge did not err in her characterization of this evidence. Whether the complainant
    was bleeding at the hospital is not dispositive of whether she was bleeding
    when she left the apartment. The observation about the absence of visible
    rectal injury was not a matter of bolstering the credibility of the complainant,
    but of negating the appellants allegation that anal penetration could not have
    happened without causing injury. The absence of evidence of spermatozoa was
    neutral  the rectal swab was inconclusive, and the complainant was not
    cross-examined on this issue.

[18]

Similarly,
    with respect to the timing of events, the trial judge made no error in finding
    it immaterial that the complainant could not account with perfect detail what
    occurred in the hour between taking the last selfie and exiting the apartment. The
    complainant explained the assault and sexual assault, verbal exchanges with the
    appellant, and attempts made to charge and use her phone to try to arrange for
    someone to come and pick her up. It is not implausible that all of these events
    could have occurred over the course of an hour.

[19]

The
    appellants testimony was in many respects unbelievable, including his police
    statement that he could not remember who the complainant was. The roommate did
    not corroborate his evidence that the complainant had trashed the apartment. It
    was immaterial that the complainant did not remember knocking on the roommates
    door and looking for the appellant.

(3)

Post-offence conduct

[20]

Of
    the many other inconsistencies raised by the appellant  such as whether the
    complainant was able to use her phone or not, whether she knew where she was or
    not  the trial judge considered and rejected them. She gave reasons for doing
    so. There was no error.

(4)

Mischief charge

[21]

The
    appellant argues that there was insufficient evidence to ground a conviction
    for mischief, and the trial judges conclusion that the appellant intentionally
    broke the complainants necklace and caused the pendant to be lost was
    unsupported and conclusory.

[22]

We
    agree that the trial judge did not engage in any analysis of this issue that
    allows for meaningful appellate review. The appellants evidence was that the
    necklace broke, and that he found the pendant on the floor, but on his account
    the necklace came off when it got caught in the complainants jacket when she
    went to leave. The conflicting evidence was not resolved by the trial judge and
    the conviction on this count cannot stand.

Sentence appeal

(1)

Presentence custody

[23]

The
    Crown concedes that the trial judge failed to account for 8 days of
    pre-sentence custody, which would amount to a deduction of 12 days from the
    global sentence.

(2)

Aggravating factors not proven

[24]

The
    appellant argues that in sentencing the trial judge relied on aggravating
    factors that were not proven: for example, that the complainant suffered
    physical and emotional harm, and that the complainant was vulnerable. The
    appellant argues there was no evidence of physical injury, the complainant did
    not provide a victim impact statement, and the trial judge appears to have
    relied overmuch on the complainants demeanour in giving testimony to conclude
    she had been traumatized.

[25]

We
    do not agree. Although the trial judge wrote at length about the complainants
    demeanour, and it would be dangerous to base findings of harm on demeanour in
    giving evidence, there was much else in the reasons for sentence to explain the
    trial judges conclusion. The nature of the offence itself  an anal rape  is
    an inherently degrading act of violence that one would not expect a victim to
    easily set aside:
R. v. McCraw
, [1991] 3 S.C.R. 72, at p. 73. The
    photo the complainant inadvertently took of herself while she was leaving and
    the 911 call also demonstrate that the complainant had been shaken by what she
    had just experienced.

[26]

With
    respect to the complainant being in a position of vulnerability, there was
    ample evidence to support that conclusion. She had been a guest in the home of a
    man who was much larger than she, who had suddenly and violently assaulted her.
    It was late at night. She did not know precisely where she was. She had no
    money. Her phone was unreliable. It was not immediately obvious to her how to
    get home, or whether she had the resources to get home. When she fled the
    apartment, she ended up collapsed on a sidewalk, and had to rely on the
    kindness of a stranger  itself a dangerous situation  to find shelter and phone
    for help.

(3)

Assault versus assault causing bodily harm

[27]

The
    trial judge made an initial error in her draft reasons in stating she was
    sentencing the appellant for the offence of assault causing bodily harm, rather
    than the offence of assault, for which he was actually convicted. When defence
    counsel pointed out the error, the trial judge corrected it, and stated that
    the sentence imposed nevertheless remained appropriate. The appellant argues
    that the trial judges error demonstrates that she imposed her sentence while
    believing, erroneously, that the appellant had been convicted for assault
    causing bodily harm, and imposed a sentence  one year in custody  befitting
    an assault causing bodily harm. We do not agree. The trial judge referred to
    the appropriate offence throughout the substance of the reasons for sentence and
    accurately described the evidence related to the assault. Although one year
    might be considered a heavy sentence for an assault, it is within the
    appropriate range, particularly given that the appellant is a violent recidivist
    and was on parole at the time of the commission of the offences.

DISPOSITION

[28]

The
    appeal against conviction is allowed with respect to the conviction for
    mischief. The appellants conviction for mischief is quashed. In all other
    respects, the appeal against conviction is dismissed. Leave to appeal sentence
    is allowed, and the appeal against sentence is dismissed, except with respect
    to the failure to give credit for 8 days served between the sentencing
    submissions and imposition of sentence, which amounts to a deduction of 12 days
    from the appellants global sentence.

G. Pardu J.A.

L.B. Roberts J.A.

B.W. Miller J.A.


