Court of Appeal for Ontario

Date: 2017-05-03 Docket: C61226

Judges: Gillese, Huscroft and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Reese Marchesan Appellant

Counsel:

• 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 appellant's former girlfriend, Deborah Johnson, and her new partner, Patrick Richardson. Johnson was also Miller's 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 appellant's 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 appellant's 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 The charge of assault was withdrawn, but the facts relating to that offence were read in.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 Miller's 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 Johnson's demeanour.

[10] We would not give effect to any of these grounds.

(1) Use of Miller's 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 Miller's guilty plea and his agreement to the facts upon which the plea was based. It would have been an error to use Miller's plea as positive evidence of the appellant's 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 judge's 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 judge's 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 Spree's evidence, nor did he err in recounting the core of Johnson's evidence, especially as 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 appellant's, in determining whether he had a reasonable doubt about the complainant's evidence (which essentially bore the entire weight of the Crown's 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 appellant's evidence.

[15] There was no error in the trial judge's 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 Johnson's lack of a criminal record at the same time.

(4) Ms. Johnson's Demeanour

[16] The trial judge did not err in his use of Johnson's demeanour when the police arrived at her apartment. He was entitled to conclude that Johnson's 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 to…orchestrate a false allegation such as this." We would not characterize this as an observation of the complainant's demeanour. It rings more authentically as an assessment of the complainant's ability to concoct and maintain a fictitious account. Nevertheless, if the trial judge was commenting on the complainant's in-court demeanour, it was not a factor that dominated his analysis. It was not used as a substitute for a substantive analysis of Johnson's 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."