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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Vassell, 2016 ONCA 786

DATE: 20161027

DOCKET: C59054

MacPherson, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ferdinand McLaughlin Vassell

Appellant

Counsel:

Ferdinand McLaughlin Vassell, acting in person

Brian Snell, appearing as duty counsel

Susan Magotiaux, for the respondent

Heard: October 6, 2016

On appeal from the convictions entered on July 20, 2009 and the sentence imposed on March 18, 2011 by Justice Antonio Di Zio of the Ontario Court of Justice.

ENDORSEMENT

[1] This appeal relates to a sexual assault that occurred on June 2, 2007. The appellant was convicted on July 20, 2009 of sexual assault causing bodily harm, unlawful confinement, uttering a death threat, threatening bodily harm while committing a sexual assault, overcoming resistance by choking, assault and breach of probation. The appellant was sentenced on March 18, 2011 to 13.7 years in custody after credit for pre-trial custody.

[2] The appellant appeals the convictions and the sentence imposed.

The conviction appeal

[3] The appellant raises a single issue with respect to the conviction appeal. He challenges the treatment of certain evidence under s. 276(1) of the Criminal Code, R.S.C. 1985, c. C-46, which provides in part:

[E]vidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

[4] In the course of her evidence, the complainant, N.G., testified that she would not have consented to have sex with the appellant because she had previously decided that she would not resume sexual activity within three months of having given birth. However, in the course of giving information at the hospital about the assault, she told the nurse she had been sexually active and had had intercourse two weeks before the incident in question. Defence counsel wanted to cross-examine her on this conflict in her evidence. The Crown objected on the basis of s. 276.

[5] The trial judge did not allow defence counsel to cross-examine the complainant about this conflict. He held that the proposed cross-examination would go to credibility – a prohibited area in s. 276. The trial judge also noted that the defence had brought a written application under s. 276 several months earlier and had adjourned it.

[6] The appellant argues the trial judge ought to have adopted the approach taken by this court in R. v. Harris (1997), 1997 ONCA 6317, 102 O.A.C. 374 (C.A.), [1997] O.J. No. 3560, at para. 50: “The probative value of the evidence did not depend upon resort to the now debunked myths suggesting some connection between prior sexual activity and a lack of veracity but in its ability to contradict specific evidence given by the complainant that was central to her version of the relevant events.” The thrust of the cross-examination was not going to be the complainant’s sexual activity, but her credibility, and it would have been proper cross-examination in the context. Had her credibility been shaken, then it might have proved to be a tipping point in assessing the complainant’s evidence in the appellant’s favour. The appellant seeks a new trial on this basis.

[7] The Crown points out that some months earlier in the pre-trial period the appellant had initiated an application under s. 276(2) for leave to cross-examine the complainant on the conflict in her evidence about her willingness to engage in intercourse at that particular time but adjourned it. Appeal counsel, who was not trial counsel, asserts nothing should be taken from the earlier adjournment of the motion. He argues, as a matter of principle, that s. 276 simply does not apply, so an application was not necessary. However, he conceded it would have been entirely open to trial counsel to pursue the s. 276 application before the trial judge when the Crown objected to the evidence.

[8] We agree with the Crown’s submission that the process prescribed by s. 276 for the admission of evidence of prior sexual history is mandatory. Perhaps the appellant would have succeeded on the s. 276 application had it been pursued, but it was not. That is a consequence of a tactical decision made at trial. Accordingly, this ground of appeal against conviction has no merit.

The sentence appeal

[9] This is not a case governed by the current statutory 1.5:1 ratio for determining credit for time served.

[10] It is common ground the appellant’s pre-trial custody was 1291 days. The appellant raises two issues about the sentence. First, the trial judge only gave credit for time served at the ratio of 1:1, not 2:1. The appellant argues that there should be a 2:1 credit because there was no available programming during the time of pre-trial custody.

[11] The determination of the credit ratio is a discretionary decision. The trial judge instructed himself that he had discretion to give no credit for pre-trial custody, or credit at a rate of 2:1, or higher. He noted that the trial proceeded more slowly than he would have liked, but did not blame the appellant for that.

[12] The trial judge noted that he would normally give credit on a 2:1 basis but, he said:

In Mr. Vassell’s case, I am not going to follow the usual rule but I will give credit on a one for one basis for two reasons.

1. Based on the information I have today, Mr. Vassell is unlikely to get parole because of his past breaches of court orders and a record of escaping custody and further because of the high risk of recidivism.

2. Based on the information I have today, he poses a serious danger to society and therefore he should remain in custody as long as legally possible.

The evidence to which the trial judge was referring was the psychiatric reports. His reasons are consistent with the decision of this court in R. v M.O., 2016 ONCA 236, 348 O.A.C. 216, at para. 31.

[13] The appellant’s second issue regarding sentence is the apportionment of pre-trial custody. Trial counsel argued all of the pre-trial custody should be apportioned to the charges in this appeal, and appeal counsel argues the same. The trial judge did not take the approach requested by trial counsel. Instead he took half of the available credit into account in determining the length of the sentence. This amounted to 646 days, which he rounded up to 1.8 years. The trial judge left the other half for the case to be decided by Justice Cleary, which is the subject of the companion appeal (C59014), and in which the appellant was declared a dangerous offender and sentenced to indeterminate detention. Counsel points out the credit became useless once the sentence of indeterminate detention was imposed.

[14] The trial judge’s decision to apportion half of the pre-trial custody credit to this case is also discretionary. The appellant was not able to point to an error of principle in the trial judge’s apportionment.

[15] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is also dismissed.

“J.C. MacPherson J.A.”

“Gloria Epstein J.A.”

“P. Lauwers J.A.”