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) , (2.1) , (2.2) , (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

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

Date: 20220201 Docket: C68029

Pardu, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Eric Richard Marshall Appellant

Counsel: Vanessa Carew, for the appellant Caitlin Sharawy, for the respondent

Heard: January 20, 2022 by video conference

On appeal from the conviction entered on April 5, 2019 and the sentence imposed on November 21, 2019 by Justice Michelle O’Bonsawin of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals his convictions for sexual assault, common assault, and mischief. He also seeks leave to appeal his global sentence of four years.

[2] The complainant and the appellant were long-time acquaintances who reconnected on Facebook. They made plans to get together at the appellant’s apartment on the evening of October 19, 2019 to watch videos, drink, and smoke pot.

[3] The appellant met the complainant at a nearby bus stop around 10 p.m. and they walked to his apartment. Once at the apartment, the two sat together on the living room couch, watched videos, drank, and smoked. On the complainant’s evidence, at one point the appellant kissed her. She did not reciprocate, and told him that was not what the evening was about. Later, on three or four occasions when she had to lean over the back of the couch to plug in her phone, he touched her rear. Each time she reproved him, but did not make a big deal of it.

[4] At some point the evening began to sour and the appellant left the couch and went to his room. The complainant was unsure whether he would return. The appellant’s roommate testified that the complainant came to her room and told her that the appellant had ditched her. They commiserated, and the roommate gave the complainant a cigarette. The complainant returned to the living room couch and occupied herself by taking selfies, the last of which was timestamped 1:02 a.m. The complainant surmised the appellant had gone to his room to sleep it off and would not be coming back. As it was late and she was unsure of how to get home at that time of night, she decided to sleep on the couch.

[5] Shortly after she took the last selfie, however, the appellant returned. The trial judge accepted the complainant’s evidence that the appellant suddenly approached her and choked her for about 5 seconds, using one hand. She fought him off and fell to the floor. He told her to get out. She told him that she needed time to sort out how to get home. Her phone only worked with Wi-Fi, and the battery would not hold a charge for very long and needed to be frequently plugged in.

[6] She again reached over the back of the couch to reach the electrical outlet and plug her phone charger in. The trial judge accepted the complainant’s evidence that the appellant came behind the complainant, pulled her sweatpants down, inserted his penis “in her butt”, and thrust three or four times until she was able to push him off, and found that the appellant had anally penetrated the complainant. The trial judge also found that the appellant pulled the necklace from the complainant’s neck, causing its pendant to fall off.

[7] The complainant quickly gathered her things and fled. She inadvertently took a photo with her phone immediately outside the apartment door. It was timestamped shortly after 2 a.m. and showed her to be distraught. She fled the building, got lost, and collapsed on the sidewalk where she was found by a stranger who took her in and helped her place a 911 call. The claimant went to the hospital, where a sexual assault kit was administered. DNA matching the appellant was found on her external genitalia and left breast. An anal swab was inconclusive for presence of DNA matching the appellant.

[8] On the appellant’s account of events, they had engaged in consensual kissing with increasing intensity, but never any form of sexual intercourse. He denied choking the complainant, breaking her necklace, or sexually assaulting her. He claimed that the complainant was upset that he had ditched her, and she began trashing the apartment before he had to physically eject her.

[9] The only other witness to what transpired was the appellant’s roommate, who stayed in her room for the most part. She testified that the complainant had knocked on her door looking for the appellant after the appellant had withdrawn to his room. She was later awakened by hearing the complainant yelling “how could you do this” and “get off me”.

Issues:

[10] The appellant argues that the trial judge erred in four respects:

1. Misapprehending the DNA evidence and finding that it corroborated the claim that the appellant had sexually assaulted the complainant;
2. Failing to resolve material inconsistencies in the Crown’s evidence;
3. Ignoring contradictory post-offence conduct by the complainant;
4. Convicting the appellant of mischief in the absence of evidence capable of supporting a conviction.

[11] With respect to the sentence appeal, the trial judge is said to have made three errors:

1. Failing to account for custody served between sentencing submissions and the date of sentence;
2. Taking into account aggravating factors that had not been proven; and
3. Effectively sentencing the appellant for aggravated assault rather than common assault.

Analysis

[12] With respect to the appeal against conviction, as we explain below, we do not agree that the trial judge made the errors alleged except with respect to the conviction for mischief, which we set aside. We also dismiss the appeal against sentence, with the exception of the failure to give credit for time served between the sentencing submissions and imposition of sentence, which is conceded by the Crown.

(1) The DNA evidence

[13] The trial judge found that the DNA evidence corroborated the complainant’s testimony. The appellant argues that the DNA evidence was neutral, and not capable of corroborating that an assault took place, as opposed to consensual activity.

[14] We disagree. We understand the trial judge to have come to the conclusion that the evidence of the appellant’s DNA on the complainant’s external genitalia was to some degree confirmatory of the complainant’s testimony that the appellant had anally penetrated her, which it was. The appellant suggested that perhaps his DNA had transferred from his hand to hers, and then from her hand to her genitalia. This theory of transfer was not supported by the expert evidence and the trial judge made no error in rejecting it. It would have been better for the trial judge to have stated that the DNA evidence was confirmatory of an element of the offence – that some sexual activity had taken place – rather than corroborative of an offence having been committed. Her wording could be misinterpreted as suggesting she believed the presence of DNA was conclusive that the appellant had committed a sexual assault, but the reasons as a whole do not support such a reading, and we do not agree that she erred.

(2) Failure to resolve material consistencies

[15] The appellant argued that the trial judge engaged in differential scrutiny of evidence throughout, faulting the appellant for all inconsistencies in his evidence while ignoring or failing to resolve material consistencies in the Crown’s evidence.

[16] One example is the trial judge’s treatment of the evidence of the registered nurse who examined the complainant. The trial judge found that some of her evidence corroborated the complainant’s version of events. The appellant argues that the trial judge should have treated all of it as neutral, except for evidence that was inconsistent with the complainant suffering injury, which the trial judge should have treated as corroborating the appellant’s version of events. The complainant had said she had bleeding cuts on her fingers, but the nurse did not record any bleeding. There was no apparent rectal injury. The complainant ticked a box on an intake form indicating the appellant had ejaculated inside her, but there was no evidence of spermatozoa found.

[17] The trial judge did not err in her characterization of this evidence. Whether the complainant was bleeding at the hospital is not dispositive of whether she was bleeding when she left the apartment. The observation about the absence of visible rectal injury was not a matter of bolstering the credibility of the complainant, but of negating the appellant’s allegation that anal penetration could not have happened without causing injury. The absence of evidence of spermatozoa was neutral – the rectal swab was inconclusive, and the complainant was not cross-examined on this issue.

[18] Similarly, with respect to the timing of events, the trial judge made no error in finding it immaterial that the complainant could not account with perfect detail what occurred in the hour between taking the last selfie and exiting the apartment. The complainant explained the assault and sexual assault, verbal exchanges with the appellant, and attempts made to charge and use her phone to try to arrange for someone to come and pick her up. It is not implausible that all of these events could have occurred over the course of an hour.

[19] The appellant’s testimony was in many respects unbelievable, including his police statement that he could not remember who the complainant was. The roommate did not corroborate his evidence that the complainant had trashed the apartment. It was immaterial that the complainant did not remember knocking on the roommate’s door and looking for the appellant.

(3) Post-offence conduct

[20] Of the many other inconsistencies raised by the appellant – such as whether the complainant was able to use her phone or not, whether she knew where she was or not – the trial judge considered and rejected them. She gave reasons for doing so. There was no error.

(4) Mischief charge

[21] The appellant argues that there was insufficient evidence to ground a conviction for mischief, and the trial judge’s conclusion that the appellant intentionally broke the complainant’s necklace and caused the pendant to be lost was unsupported and conclusory.

[22] We agree that the trial judge did not engage in any analysis of this issue that allows for meaningful appellate review. The appellant’s evidence was that the necklace broke, and that he found the pendant on the floor, but on his account the necklace came off when it got caught in the complainant’s jacket when she went to leave. The conflicting evidence was not resolved by the trial judge and the conviction on this count cannot stand.

Sentence appeal

(1) Presentence custody

[23] The Crown concedes that the trial judge failed to account for 8 days of pre-sentence custody, which would amount to a deduction of 12 days from the global sentence.

(2) Aggravating factors not proven

[24] The appellant argues that in sentencing the trial judge relied on aggravating factors that were not proven: for example, that the complainant suffered physical and emotional harm, and that the complainant was vulnerable. The appellant argues there was no evidence of physical injury, the complainant did not provide a victim impact statement, and the trial judge appears to have relied overmuch on the complainant’s demeanour in giving testimony to conclude she had been traumatized.

[25] We do not agree. Although the trial judge wrote at length about the complainant’s demeanour, and it would be dangerous to base findings of harm on demeanour in giving evidence, there was much else in the reasons for sentence to explain the trial judge’s conclusion. The nature of the offence itself – an anal rape – is an inherently degrading act of violence that one would not expect a victim to easily set aside: R. v. McCraw, [1991] 3 S.C.R. 72, at p. 73. The photo the complainant inadvertently took of herself while she was leaving and the 911 call also demonstrate that the complainant had been shaken by what she had just experienced.

[26] With respect to the complainant being in a position of vulnerability, there was ample evidence to support that conclusion. She had been a guest in the home of a man who was much larger than she, who had suddenly and violently assaulted her. It was late at night. She did not know precisely where she was. She had no money. Her phone was unreliable. It was not immediately obvious to her how to get home, or whether she had the resources to get home. When she fled the apartment, she ended up collapsed on a sidewalk, and had to rely on the kindness of a stranger – itself a dangerous situation – to find shelter and phone for help.

(3) Assault versus assault causing bodily harm

[27] The trial judge made an initial error in her draft reasons in stating she was sentencing the appellant for the offence of assault causing bodily harm, rather than the offence of assault, for which he was actually convicted. When defence counsel pointed out the error, the trial judge corrected it, and stated that the sentence imposed nevertheless remained appropriate. The appellant argues that the trial judge’s error demonstrates that she imposed her sentence while believing, erroneously, that the appellant had been convicted for assault causing bodily harm, and imposed a sentence – one year in custody – befitting an assault causing bodily harm. We do not agree. The trial judge referred to the appropriate offence throughout the substance of the reasons for sentence and accurately described the evidence related to the assault. Although one year might be considered a heavy sentence for an assault, it is within the appropriate range, particularly given that the appellant is a violent recidivist and was on parole at the time of the commission of the offences.

DISPOSITION

[28] The appeal against conviction is allowed with respect to the conviction for mischief. The appellant’s conviction for mischief is quashed. In all other respects, the appeal against conviction is dismissed. Leave to appeal sentence is allowed, and the appeal against sentence is dismissed, except with respect to the failure to give credit for 8 days served between the sentencing submissions and imposition of sentence, which amounts to a deduction of 12 days from the appellant’s global sentence.

“G. Pardu J.A.”

“L.B. Roberts J.A.”

“B.W. Miller J.A.”