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 on 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 justice, the judge or justice shall consider
(a) society's 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(1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th 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 Information
Court of Appeal for Ontario
Date: 2017-12-21
Docket: C61358
Judges: Juriansz, Pepall and Trotter JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
Brandon Marshall Appellant
Counsel
For the Appellant: Alison Craig
For the Respondent: Deborah Krick
Hearing and Appeal
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.
Decision
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 appellant's 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 complainant's 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 sister's house, but no one was home. She next went to the house of a friend's 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 friend's mother that the appellant had raped her.
[8] The complainant's mother picked her up and took her to the hospital. The sexual assault nurse observed a one centimeter tear to the complainant's 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 complainant's delay in reporting as one of several factors that ought to adversely affect the complainant's credibility and raise a doubt about the appellant's guilt.
[14] At the pre-charge conference both counsel agreed to the judge's 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 judge's instruction that the timing of disclosure signifies nothing was in error as timing is a fact that may be considered when assessing a complainant's credibility. Moreover, the appellant submits that the trial judge compounded the error in instructing the jury to disregard defence counsel's 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 complainant's 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 judge's instruction to the jury on defence counsel's 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 counsel's 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 judge's instruction ensured that the evidence did not resort to speculation or impermissible stereotypical reasoning. The appellant's 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 judge's 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 judge's 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 judge's 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 judge's 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 counsel's 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 Crown's 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 jury's 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 judge's 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 judge's 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 complainant's evidence, took place the day before the trial judge's 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 judge's charge.
Disposition
[41] For these reasons, I would dismiss the appeal.
Released: December 21, 2017
"SEP" "S.E. Pepall J.A."
"I agree R.G. Juriansz J.A."
"I agree G.T. Trotter J.A."
