



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Marchesan, 2017 ONCA 355

DATE: 20170503

DOCKET: C61226

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Reese Marchesan

Appellant

Najma Jamaldin, for the appellant

Christine Tier, for the respondent

Heard: May 1, 2017

On appeal from the convictions entered on April 15, 2015
    by Justice R. Jennis of the Ontario Court of Justice.

By the Court:

Introduction and Background

[1]

The appellant was convicted of break and enter
    of a dwelling house (s. 348(1)(a) of the
Criminal Code
); two counts of assault (s. 266); and uttering a death threat (s.
    264.1).

[2]

The charges arose from a single incident in
    which the appellant and his friend, Steven Miller, broke into a basement
    apartment. The apartment was occupied by the appellants former girlfriend,
    Deborah Johnson, and her new partner, Patrick Richardson. Johnson was also
    Millers aunt.

[3]

While Johnson and Richardson were watching television,
    the appellant and Miller broke in through a window. The appellant then attacked
    Richardson, repeatedly punching him. Johnson intervened, but she was thrown to
    the ground and threatened with death. When 911 was called, the appellant and
    Miller left through the apartment door, but came back and kicked in another
    window.

[4]

Richardson refused to cooperate with the investigation.
    Johnson testified about what happened. It was the appellants position at trial
    that Miller acted alone and that Johnson fabricated the allegations against him
    as revenge for his physical mistreatment of her during their relationship, and
    for spending the funds from her divorce settlement on drugs.

[5]

Miller testified for the defence and said that
    he came to the apartment alone. He saw what he thought was fighting going on
    and believed that Johnson, his aunt, was in danger. He attempted to intervene. Having
    misperceived the situation, he was asked to leave.

[6]

Before the appellants trial, Miller entered a
    plea of guilty to break and enter. The charge of assault was withdrawn, but the
    facts relating to that offence were read in. Miller agreed with the facts. He
    was cross-examined at trial on this earlier version, which differed markedly
    from his trial evidence.

[7]

The appellant testified and advanced a defence
    of alibi, supported by the evidence of his then girlfriend, Stacey Spree.

[8]

The trial judge rejected the evidence of all
    defence witnesses and found that all counts were proved beyond a reasonable
    doubt.

Grounds of Appeal

[9]

The appellant raises four grounds of appeal: (a)
    the trial judge misused Millers plea of guilty to the break and enter charge;
    (b) the trial judge misapprehended the evidence; (c) the trial judge erred in
    his credibility findings; and (d) the trial judge erred in relying on Johnsons
    demeanour.

[10]

We would not give effect to any of these
    grounds.

(1)

Use of Millers Guilty Plea

[11]

We accept that the trial judge erred when he
    said that Miller entered a plea of guilty to assault instead of break and
    enter. However, this mistake was inconsequential.

[12]

The trial judge did not misuse the evidence of Millers
    guilty plea and his agreement to the facts upon which the plea was based. It would
    have been an error to use Millers plea as positive evidence of the appellants
    guilt: see
R. v. Youvarajah
, 2013 SCC 41, [2013]
    2 S.C.R. 720. However, that did not happen in this case. The trial judge
    permitted Miller to be cross-examined on the facts to which he admitted on his
    plea for the sole purpose of assessing his credibility as a witness at trial.
    There was nothing improper in using the evidence in this manner. See
R.
    v. Berry
, 2017 ONCA 17, at paras. 29-42.

(2)

Misapprehension of Evidence

[13]

The appellant points to some factual inaccuracies in the trial judges
    reasons. We agree that the trial judge was mistaken on two of the points that
    the appellant relies upon (
i.e.
, the offence to which Miller pleaded
    guilty and the fact that Spree knew Miller). However, they were minor factual
    issues that were not important to the trial judges critical reasons for the
    ultimate findings he made: see
R. v. Loher
, 2004 SCC 80, [2004] 3
    S.C.R. 732, at para. 2. We are not persuaded that the trial judge erred in his
    analysis of other aspects of Sprees evidence, nor did he err in recounting the
    core of Johnsons evidence, especially at it related to her motive to
    fabricate.

(3)

Credibility Findings

[14]

The trial judge did not err in the credibility findings that he made.
    The trial judge fairly observed that the appellant was not shaken in recounting
    his alibi. However, he went on to observe that it was the type of story that is
    easy to maintain during cross-examination. This finding was open to the trial
    judge on the evidence. It must be remembered that the trial judge considered
    all of the defence evidence, including the appellants, in determining whether
    he had a reasonable doubt about the complainants evidence (which essentially
    bore the entire weight of the Crowns case). The trial judge explained why he
    rejected the evidence of Miller and Spree. Based upon the evidence he did
    accept, the trial judge was entitled to ultimately reject the appellants
    evidence.

[15]

There was no error in the trial judges reference to the fact that Johnson
    had no criminal record. Given that the trial judge properly articulated the
    standard and burden of proof, he committed no error by dealing with the
    criminal records of the defence witnesses and Johnsons lack of a criminal
    record at the same time.

(4)

Ms. Johnsons Demeanour

[16]

The trial judge did not err in his use of Johnsons demeanour when the
    police arrived at her apartment. He was entitled to conclude that Johnsons
    presentation at the time was consistent with her allegations, and contradicted
    the defence theory of fabrication. In her distressed state, and in the context
    of her boyfriend having been beaten and bloodied, it would make little sense
    that she would fabricate the allegations against the appellant, a person she
    had not seen in four years.

[17]

The appellant says that the trial judge erred when he stated: The
    complainant did not present as a person who had the ability toorchestrate a
    false allegation such as this. We would not characterize this as an
    observation of the complainants demeanour. It rings more authentically as an
    assessment of the complainants ability to concoct and maintain a fictitious
    account. Nevertheless, if the trial judge was commenting on the complainants
    in-court demeanour, it was not a factor that dominated his analysis. It was not
    used as a substitute for a substantive analysis of Johnsons evidence, which
    the trial judge undertook.

Disposition

[18]

The appeal is dismissed.

E.E.
    Gillese J.A.

Grant
    Huscroft J.A.

G.T.
    Trotter J.A.


