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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Before: Cronk, Epstein and Lauwers JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Lyle Andrew Marshall

Appellant

Counsel:

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 Children’s 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 appellant’s 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 appellant’s step-mother should have been admitted as part of the evidence for the defence.

[5] The trial judge’s 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 appellant’s 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 judge’s 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 judge’s 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 judge’s 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 judge’s 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.”