Court File and Parties

COURT FILE NO.: CR-17-SA5123 DATE: 2019/04/15

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen – and – Eric Richard Marshall

COUNSEL: H. Shouldice for Her Majesty the Queen Vanessa Carew for Eric Richard Marshall

HEARD: April 1-4, 2019 (Ottawa)

Reasons for Decision

(RENDERED FROM THE BENCH ON APRIL 5, 2019)

Pursuant to s. 486.4 of the Criminal Code there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identity of the complainant.

O’Bonsawin J.

Background

[1] PB is 26 years old. Mr. Marshall is 28 years old. They have known each other since high school. When they were younger, they saw each other at parties, smoked joints together and, at times, she sold him weed. After their teenage years, they saw each other sporadically. At some point, they became Facebook friends. On the evening of October 19, 2017, PB and Mr. Marshall decided to meet up at the Tunney’s Pasture bus station and that they would then hang out at his apartment.

[2] Mr. Marshall pled not guilty to the following five charges related to the incidents of October 19-20, 2017:

• Count 1: assault as per ss. 267 (b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Code”);
• Count 2: sexual assault as per s. 271;
• Count 3: mischief as per ss. 430(1)(a);
• Count 4: failing to comply with a probation order as per ss. 733.1(1); and
• Count 5: failing to comply with a probation order as per ss. 733.1(1).

[3] At the commencement of the trial, the Crown and the Defence agreed that a s. 486.4 Order was required regarding the non-publication of information that could lead to the disclosure of PB’s identity.

[4] In addition, Mr. Marshall admitted to the following:

• the voluntariness of his statement to police which was video recorded;
• the fact that he was bound by probation orders as indicated in Counts #4 and 5;
• the continuity, accuracy and authenticity of the sexual assault kit; and
• the jurisdiction and identity.

[5] During submissions, I was advised that the Crown intended to proceed on a lesser charge for Count #1. Instead of Mr. Marshall being charged as per s. 267 (b) of the Code, the Crown was proceeding as per s. 266 instead. In addition, I was advised by the Defence that if I found Mr. Marshall guilty of Counts #1-3, I could find Mr. Marshall guilty of breaching his probation orders for Counts #4-5 since the probation orders were admitted.

[6] The Crown called six witnesses to testify: the complainant, PB, Cameron Preston, a community safety worker with Ottawa Housing, Rosemary Gladu, a registered nurse with the Civic Hospital, Kaylea Ariss, Mr. Marshall’s roommate in October 2017, Constable Ringel, a police officer with the Ottawa Police and Joseph Frappier, a senior scientist with the Centre of Forensic Sciences. Mr. Marshall testified and the Defence did not call any further evidence.

Evidence

[7] I will review the evidence of the witnesses.

[8] PB’s evidence is summarized as follows:

• She first met Mr. Marshall as a teenager while in high school.
• They used to hang out here and there and smoke a joint together, say hi to each other but it was not a strong friendship.
• After their teenage years, they did not really stay in touch.
• At some point, PB and Mr. Marshall became friends on Facebook.
• At that time, PB had her clothes both at her parents’ house in Kanata and at her boyfriend’s residence. She has had an on and off relationship with her boyfriend for a period of long time.
• A few weeks before October 19, 2017, PB and Mr. Marshall started sending each other messages via Facebook Messenger of funny pictures and made small talk. PB and Mr. Marshall seemed to have the same interests. She could not recall who messaged who first. In October 2017, PB was in a relationship with her boyfriend.
• At some point, PB and Mr. Marshall made plans to meet up on October 19, 2017 and PB would bring with her a little weed. Before she arrived, she had not drank any alcohol but she had smoked some weed probably at around 5:00-6:00 p.m. PB brought with her half a gram of weed.
• PB did not have Mr. Marshall’s address. They decided to meet up at the Tunney’s Pasture bus station. She told him that she was going to wear pink pants in order to help Mr. Marshall identify her since they had not seen each other in quite some time. When PB arrived at around 10:00 p.m., she recognized Mr. Marshall first. He seemed out of it and pretty drunk. PB was a little irked by this because being sober with a drunk is no fun.
• They then walked from the bus station to Mr. Marshall’s apartment. It took them only about five to ten minutes and his apartment was about a block away. He lived in an apartment building with four to five floors and he had a female roommate.
• When they arrived to the apartment, on her way to the living room, PB passed Mr. Marshall’s roommate who was in the kitchen. It was very brief and she did not even catch the roommate’s name. PB and Mr. Marshall bummed a smoke from the roommate. After the roommate went to her bedroom, they did not see her again. The roommate may have been sick that evening.
• PB and Mr. Marshall hung out in his living room. It had a couple of couches, a side table and a TV. They talked, had a couple of drinks, watched YouTube videos and smoked some weed in a bong. Mr. Marshall also had a half gram of weed. Things were good. They were hanging out.
• PB agreed that she was a heavy drinker in October 2017 and considers herself an alcoholic today. She now drinks more as she is really depressed because of Mr. Marshall sexually assaulting her. PB also smokes a lot of weed. This would make her giggle, be more social but it would not completely change who she was. In October 2017, her tolerance for alcohol was high. PB and Mr. Marshall each drank a mickey of Captain Morgan. When PB arrived at the apartment, there were three bottles of Captain Morgan in total. They were also drinking water that evening. It probably took her about one hour to finish the mickey. Mr. Marshall may have had a shot of her bottle. PB had a little “buzz” but there were many sobering things that happened around her like Mr. Marshall touching her, issues with her phone and chasing water. Therefore, she could not really get drunk.
• During that evening, PB had a cellular phone that did not have a plan. The phone was in one piece when she arrived at Mr. Marshall’s apartment. It worked on Wi-Fi. Her phone had trouble staying charged.
• PB tried to plug her phone behind the couch in back of where she and Mr. Marshall were sitting. In order to plug the phone in, she had to bend over the back of the couch, reach down and stretch between the couch and the wall. She had to plug her phone numerous times because at times, Mr. Marshall’s arm would hit her cable and the plug kept getting knocked out of the wall socket.
• When BP bent over the couch to plug her phone, Mr. Marshall started rubbing her “butt” and she had to push him off of her and say “no this is not happening…this is not why I am here”. However, it kept happening. Mr. Marshall was not aggressively touching her butt; it was kind of sloppy. The first time “it was like no don’t do it”. BP knew how drunk guys can be so she did not make a big deal of it, but let him know that she was not ok with his touching her.
• Mr. Marshall also kissed PB and she did not kiss him back. She kept trying to shrug it off and didn’t want to make a big deal of it. She did not think that it would escalate so she did not leave.
• At one point, Mr. Marshall put on a very dark video. Afterwards, Mr. Marshall left to go to the washroom and disappeared into his bedroom. PB then started to take selfies to entertain and distract herself. She was hoping that he had passed out and her plan was to sleep on his couch because of the late hour.
• When Mr. Marshall returned, he “came out of nowhere” and choked her with one hand very hard for maybe five seconds when she was sitting on the couch. He had caught her off guard. He then stood her up from the floor. She sat back on the couch because she had to figure out her phone and tried to message her friend Jacob. Mr. Marshall told PB to “get the fuck out” and she responded to him “Where do you want me to go? I need to collect my thoughts to figure out what I am doing”. It may have been around 2:00 a.m.
• Mr. Marshall agreed to let her stay and she was going to try to get a ride home. She wanted to message her friend Jacob. During her cross-examination, PB agreed that she had “messed that up”.
• PB had to plug her phone in again because she wanted to have enough battery so that she could leave. When she was leaning over the back of the couch, Mr. Marshall came up behind her, held her down, pulled her elastic wasted pants down and “put his penis in my butt”. She did not consent to Mr. Marshall anally penetrating her. Mr. Marshall thrust three to four time in her anus and then he got off of her. It lasted maybe three to five seconds. She told Mr. Marshall: “Why are you doing this? Why would you do this? I don’t get it. It is not ok”.
• PB got mad and Mr. Marshall told her to “Get the fuck out” again and ripped her necklace off of her neck. At some point, he got her phone away from her. She had to beg him to give it back to her. PB was unsure how Mr. Marshall got her phone from her. Furthermore, she had the chain but no longer had the pendant. Her boyfriend had bought the necklace for her.
• When Mr. Marshall gave PB back her phone, its back was missing.
• When PB left his apartment, her hips and neck were really sore and she had cuts on her fingers that were bleeding. PB was unsure how Mr. Marshall was holding her down – if he pulled her pants down with one or two hands. She was also unsure of how she received the cuts on her fingers but it may have been during her struggle with Mr. Marshall.
• As PB was in the hallway, she inadvertently took a photo of herself. The photo shows she is crying.
• The last thing that she tried to message to Jacob was that she did not know where she was.
• After PB got outside of Mr. Marshall’s apartment, she called her son’s father and told him that she was scared and alone and did not know what to do. He told her to just go.
• PB’s plan was to go to the Starbucks to try to find someone to talk to but she went the wrong way. She ended up at a street corner, did not know where she was, fell to the ground and cried.
• An older man found her crying and he could tell that something was wrong. He asked her if she was ok and she told him what had happened. The man then took her to his apartment where his wife was and they called 911. They were strangers to her.
• From her cell phone, PB could make 911 calls without a plan. She then went outside into Ottawa Housing’s car and the police eventually arrived. PB was questioned on the sidewalk. Afterwards, she was taken to the Civic Hospital where a rape kit was administered. It was not a good experience, she was scared and did not like it.
• PB made a written statement to the police that was one to two pages long - it was not a long document. This took place at the hospital. The first three quarters of her statement is in her writing and the last one quarter are questions that were asked to her. PB did not mention the choking in her brief statement because they were talking about the sexual assault. She was in shock at the time. However, she did mention the choking to the police, to the woman who administered her rape kit and to the doctor.
• Sometime afterwards, PB went to the police station and gave a statement to Detective Paquette. It may have been in November. It was hard for PB to talk about what had happened since it was not good; it was really traumatizing especially having to talk about it and explain it over and over again.
• After PB left Mr. Marshall’s apartment, she never communicated with him again. She received a bunch of messages from him. She saw the message received at 2:48 a.m. “Wtf lmao” when she was at the hospital. She was so overwhelmed and shocked.
• When BP saw the message of 9:18 a.m. from Mr. Marshall “How are you”, she felt sick, it made her stomach turn and she felt like he was taunting her.
• When PB read the message of 16:24 from Mr. Marshall “What even happened anyways, like I remember bits and pieces”, she was not surprised by it because he was really drunk and out of it. She was not sure if he would even remember. PB would only have remembered bits and pieces of that night too if she had been that drunk.
• When Mr. Marshall wrote at 18:50 “Fill me in, there’s blood on my door and a bunch of broken shit”, PB just knew that she had a cut on her hand and she assumed that was what he was referring to. She did not remember him smashing anything and was not sure what he was referring to.
• When PB was at the hospital, the registered nurses told her not to respond to Mr. Marshall’s messages.
• After Mr. Marshall’s message of October 23 at 19:36 “Are you ever going to say anything”, he blocked PB.
• PB’s intention on the evening of October 19th was to go hang out with Mr. Marshall, enjoy their time together since they had the same sense of humour and seemed to get along.

[9] Mr. Preston’s evidence is summarized as follows:

• He has worked as a community safety worker for Ottawa Housing for the past three years.
• Mr. Preston responded to a call to assist a tenant and arrived at the location at around 3:12 a.m. When he arrived to unit 406, PB was on the phone with the Ottawa Police. She was crouched in a corner crying, shaking and was visibly upset. Mr. Preston confirmed the police were on their way. He then asked PB if she wanted to tell him what had happened in order to offer her support until the Ottawa Police arrived. PB told him that she had been sexually assaulted. PB showed Mr. Preston her damaged phone, the screen was shattered and there was a screen shot GPS of where it occurred but there was no specific address.
• After they received the estimated time of arrival from the Ottawa Police, Mr. Preston and a colleague asked PB if she wanted to go downstairs to wait in their vehicle. PB agreed and also accepted to be searched for weapons as per their policy before she entered their car. Her knapsack stayed outside of the car and PB put her gold chain that was around her neck into her pocket.
• In the vehicle, they made small talk and PB was “up and down”, she would be upset then would try to distract herself and was happy when she mentioned her son.
• Mr. Preston did not notice any visible marks on PB’s body.

[10] Ms. Gladu’s evidence is summarized as follows:

• She is a registered nurse at the Civic Hospital with close to twenty years of experience.
• On October 20, 2017, Ms. Gladu’s role in the Sexual Assault Unit was to complete a head to toe assessment of the victim, to assess injuries, document injuries and take the history of how and when the incident occurred.
• While another registered nurse from night shift initially assessed PB, Ms. Gladu administered the sex evidence kit at 7:00 a.m.
• Ms. Gladu filled out the Physical Examination Form regarding PB based on her visual observations. On the form, she noted three linear scratches on PB’s upper left thigh, a linear scratch on her left forearm and two scratches on the first finger of her right hand. Ms. Gladu did not list any visible injuries on the front and the back of PB’s head.
• Ms. Gladu also filled out a Forensic Evidence Form regarding PB. On these forms, she ticked off what the patient told her. For example, she ticked off “yes” for “was there penetration or attempted penetration of the patient’s anus by the assailant’s penis” and for “was there ejaculation by the assailant”.
• Ms. Gladu performed a rectal swab on PB. There were no visual signs of bleeding, any trauma or open wounds. There was nothing that she could visualize at the time of the assessment.
• PB was cleared by a physician.
• In Ms. Gladu’s experience, if a patient claims to have had anal penetration, it has not always been her experience to observe redness or swelling in the rectal area.

[11] Ms. Ariss’ evidence is summarized as follows:

• Mr. Marshall became her roommate in early October 2017 after she interviewed him related to a Kijiji add. She did not know him beforehand.
• Ms. Ariss vaguely remembered the night in question. She arrived home after work between 10:45-11:00 p.m. Ms. Ariss was “feeling fine just like any other day”. She was not sick.
• She recalled introducing herself to PB, drank water in the kitchen then went into her bedroom. PB and Mr. Marshall were sitting on separate couches in the living room when she saw them. They were drinking and she smelled marijuana. All seemed fine.
• At one point, PB knocked at Ms. Ariss’ bedroom door, asked for a smoke and if she knew where Mr. Marshall had gone. Ms. Ariss told her that if he was not in the living room, he was probably in his bedroom. PB told her that this was the first time they had met. Ms. Ariss assumed that PB and Mr. Marshall had met on Tinder. If Mr. Marshall had “ditched” PB in the living in this strange house, “that was really shitty”. Ms. Ariss told PB that she was welcome to stay on the couch. PB seemed pretty upset by the situation. This conversation occurred a couple of hours after she first saw PB because by the time she had knocked on her door, Ms. Ariss had watched a couple of episodes on Netflix.
• Ms. Ariss fell asleep and afterwards she woke up to hearing PB screaming and yelling: “How can you do that to me?” and “Get off of me”. Ms. Ariss heard PB yelling the same thing over and over again. There was back and forth repeatedly. Ms. Ariss could not hear what Mr. Marshall was saying. She did not know what was happening. Ms. Ariss was unsure of what time it was when she heard PB screaming. She heard this for about fifteen minutes and did not know what happened afterwards.
• Ms. Ariss was bothered by what she heard but Mr. Marshall “is a big person and I was worried about going out there and not being able to do anything”. When asked if she did not want to interfere, she responded “I feel bad that I didn’t”. If it had escalated more and she had heard smashing, she would have called the police.
• Afterwards, Ms. Ariss fell back asleep.

[12] Cst. Ringel’s evidence is summarized as follows:

• He has been with the OPS since December 2016. He responded to a call on October 20, 2017. When he arrived at 4:32 a.m., he saw an Ottawa Housing vehicle and two security officers. PB was sitting in the back of the vehicle crying. Cst. Ringel took a verbal statement from the security officers to get an idea of what was going on and spoke to PB. She informed him that she had been wondering the streets. She was visibly upset. He then took PB to the Civic Hospital in his police cruiser and they arrived at 4:50 a.m. At 5:10 a.m., Cst. Ringel took a written statement from PB. At that time, she was still emotional but no longer crying. PB was capable to write some description of what had happened with her own hand and he wrote down his questions and she wrote down her responses.
• Cst. Ringel did not recall if PB appeared to be intoxicated.

[13] Mr. Frappier’s evidence is summarized as follows:

• He has been with the Centre of Forensic Sciences since 1996 – for approximately twenty-three years. He is a senior scientist with the Centre of Biology.
• Mr. Frappier prepared two reports: one dated December 13, 2017, and one dated June 27, 2018.
• As per the DNA profile summary, two male DNA profiles were uploaded to the DNA Databank. The items from PB included a rectal swab, an external genitalia swab, a vaginal swab, and a bra.
• Mr. Frappier received a comparison blood sample from Mr. Marshall.
• With regards to the rectal swab, Mr. Frappier could not confirm or deny the presence of male DNA since there was not enough to generate a male DNA profile.
• In his June 27, 2018 Biology Report, Mr. Frappier determined that Mr. Marshall “cannot be excluded as a contributor to the following DNA mixtures previously reported:
  • the external genitalia swab (6-1) from [PB]
  • the left hand fingernail swab (10-1) from [PB]
  • the right hand fingernail swab (11-1) from [PB]
  • the left breast swab (12-1) from [PB] The DNA evidence from the left breast swab 12-1 is estimated to be 3.6 quadrillion times more likely if it originates from [PB], Eric MARSHALL and one unknown individual than if it originates from [PB] and two unknown individual unrelated to Eric MARHSALL”.
• In addition, Mr. Frappier noted in his Biology Report dated June 27, 2018 that the likelihood that the DNA located on PB’s external genitalia swab is 72 trillion more likely that it belongs to PB, Mr. Marshall and one unknown individual.
• He concluded that the weight of the evidence strongly supports that Mr. Marshall is the source of the DNA located on PB’s external genitalia.
• Mr. Frappier was asked: if there was Mr. Marshall’s DNA or saliva found in PB’s fingernails, was it possible that if she touched herself around her genitalia, it could be one way that the saliva could have been transferred? Mr. Frappier responded that he was not sure of the source of the body fluid under PB’s fingernails. Due to scuffling or scratches, in most cases, scratches of cellular material end up being stuck underneath fingernails and fingernail beds. In his opinion, that amount under the fingernails and liquid would not transfer to another body part for it to generate a DNA profile. However, if there was saliva on a hand, it was still wet and touched another object that could be possible.

[14] Mr. Marshall’s evidence is summarized as follows:

• He is currently 29 years old and single.
• Mr. Marshall had known PB for at least ten years. He first met PB in high school when she used to sell him pot. They would meet up with friends and smoke up. They saw each other in passing and were never really close friends.
• Mr. Marshall messaged PB on Facebook maybe three weeks before October 19, 2017. At first, they mostly exchanged memes, YouTube clips and jokes. At that time, he was trying to grow his YouTube channel. They were messaging each other almost every day for the two weeks leading up to their hangout.
• They had made arrangements to make plans a few days before, and on October 19th, they decided to hang out that night.
• As they got closer to the date, PB confided in him about her relationship with her boyfriend. Their conversations got flirty in nature. Mr. Marshall told PB that if she broke up with her boyfriend, she could move in with him. Mr. Marshall saw PB as someone who was interested in him and he was interested in her. He was under the impression that it was mutual.
• A half hour before meeting up with PB, Mr. Marshall had taken two shots of Captain Morgan. When he first met up with PB at the bus station, he did not recognize her because she was not wearing makeup. They hugged and it seemed normal. They walked back to his apartment.
• Mr. Marshall had moved into Ms. Arliss’ apartment at the beginning of that month.
• He showed PB his t-shirt collection, his room and then they went into the living. At first, they were sitting on separate couches.
• When Mr. Marshall and PB first arrived to his apartment, they started smoking pot right away. They smoked a gram of pot through a bong. They did not start drinking right away because he was trying to find chase to drink with the Captain Morgan. That night, Mr. Marshall drank a mickey and PB drank a mickey of Captain Morgan that he had previously purchased earlier that day. He had purchased three bottles but had planned to only drink two bottles. During that night, he was not “stone cold sober” but he “was not black out drunk”. PB was definitely more emotionally drunk in the way that alcohol made all of her emotions ten times stronger and what she said came out more intensely.
• Mr. Marshall and PB were smoking, drinking, watching YouTube and he showed PB the opening scene of a movie about one of his tattoos since she was curious about it. They did this for about two hours and all seemed to be going ok. They finished the alcohol closer to 11:45 p.m. They kissed for the first time at around 11:50-12:00 a.m. Mr. Marshall leaned in to kiss PB’s cheek and she turned her head and she kissed him on the lips. At one point, when she leaned over to grab her phone charger, he lightly touched her butt playfully and she laughed.
• The next time they kissed was at 12:15 p.m. and every time they would kiss, it would get more intense. The first time Mr. Marshall was holding PB’s shoulders, then next time, her shoulders and her breast. The third kiss happened at 12:30 a.m. and he could tell that something was wrong. PB pulled away. He told her he was not sure how he felt about this because she still had a boyfriend and that she had to make a choice. He felt confused. PB then started getting mad at Mr. Marshall and her phone kept getting unplugged. Many times she had to turn around and plug her phone back in. She told him that his charger was “crap” and she wanted him to get her a new charger. The charger kept falling out of her phone. In order to get to the charger, he had to pull the couch and the plug was located at the bottom almost on the floor. PB insulted his apartment, told him it was dirty and that his roommate was ugly. Mr. Marshall told her she had to get out of his apartment, and then he went to his bedroom and smoked a cigarette. His bedroom did not have a bed and he slept on the couch. There would be nowhere for him to sleep if PB slept on the couch. After forty-five minutes at 1:15 a.m., he assumed PB was gone but she was still in the living room. She had continued to drink and was much drunker. PB started arguing with him again saying “Why did you ditch me? How could you do this? What are you doing?” Mr. Marshall told PB she had to go and asked her to leave. At 1:20-1:25 a.m., PB was yelling and she threatened to break his computer. She kicked his TV. He then grabbed her in a bear hug when she was facing away from him and he started to walk her towards the door. She was yelling “How could you do this?” and as she was flailing, her phone fell to the ground. Ms. Ariss came out to see what was going on then went back to her bedroom. This went on for at least twenty minute and at this point it was almost 1:45 a.m. Mr. Marshall put PB down and she said she would leave but she sat back down on the couch. She took her phone out and he asked her when she was going to leave. PB was on her phone for about twenty minutes until 2:00 a.m. He decided that this was too much and that she had to get out of his apartment. He ended up by strong arming her out of his apartment. Mr. Marshall closed the door and locked it. PB banged on his door, said his name and told him that she had left her purse in the apartment. She was crying and he could hear other apartment doors opening and people were coming out to see what was happening. It was not a good scene to see a belligerent girl who had been drinking so he grabbed her stuff, brought it outside of the front building door, locked the door and locked her out.
• Mr. Marshall could hear PB outside crying, yelling and sobbing for at least five to ten minutes then she went down the street. However, during cross-examination, it was put to him that during his police interview, he told Detective Paquette that it was not him that heard PB outside but instead it was his roommate. Mr. Marshall replied that he assumed Ms. Ariss had heard PB outside because she made a comment to him about it the next day. He then testified that he had heard PB outside and Ms. Ariss had also told him the next day that she had heard PB.
• During cross-examination, Mr. Marshall’s statement to police that PB was yelling at his roommate that she was a “slut” and a “bitch” was put to him. “Even my roommate came out and said what are you guys arguing about and I was like I don’t know she is just freaking out mad, she gets up and is yelling and screaming and yelling all crazy shit, yelling at me and my roommate”. Mr. Marshall replied that PB was saying all of that stuff from the living room and at the time and he was standing at Ms. Ariss’ bedroom door. Ms. Ariss went to her bedroom doorway. He went on to say that he should not have used the term yelling because PB was just raising her voice.
• When Mr. Marshall was asked during cross-examination why during his police interview he did not want to provide his roommate’s name to Detective Paquette, he responded that he wanted to explain to Ms. Ariss what was going on before he got kicked out into the street.
• Mr. Marshall then went to the kitchen and cut his hand on a piece of broken glass. He did not notice that when he went to leave and had gotten blood on his door handle. The reason he was messaging PB was about his blood on his door handle. Mr. Marshall also called PB about ten to twenty minutes later because he figured she was down the street, he wanted to calm her down and talk some sense into her to make sure she got home. He did not end up by speaking to her.
• Mr. Marshall later sent PB a couple of messages because there was a broken glass in his sink and it turned out that it had nothing to do with what had happened. He wanted to know why PB had kicked his TV and ripped his t-shirt. He was also messaging her to make sure she had gotten home. During cross-examination, Mr. Marshall testified that he sent PB the messages the next day when he was drunk. He remembered all that had happened from when they arrived to his apartment until PB left and his getting drunk the next day made him forget what had happened the day before. After PB left the apartment, Mr. Marshall drank some more. He messaged PB “Wtf” since he assumed it was enough especially if someone had been acting like PB had acted that evening. With regards to the specific message at 16:24 on October 20th, “What even happened anyways, like I remember bits and pieces” and at 18:50 “Fill me in, there’s blood on my door and a bunch of broken shit”, he wanted to know what happened after PB left his apartment.
• During that evening, Mr. Marshall did not choke PB and they did not have sexual intercourse. In addition, he did not rip PB’s necklace off of her neck but he agreed that it was broken at some point.
• To have heard PB testify in court about her allegations against him was quite upsetting since this has been going on for over 18 months, it has ruined his life and he has lost friends. Mr. Marshall constantly loses sleep and it is upsetting to him. Mr. Marshall has “been defending people of this nature and it is now weird to be on the other side”. In 2009, he explained that he had gone to the penitentiary for fighting a guy who sexually assaulted a girl that he knew. Mr. Marshall provided quite the lengthy description of this event: he received a call the night before from CC that HH had sexually assaulted her. On the night of the fight, he had encountered CC and HH on Bank Street. At some point, he had thrown a glass bottled at HH. Afterwards, he was invited to a party at CC’s parents’ house in Kanata. When Mr. Marshall arrived at the house, he knocked on the front door. HH answered the door, said “What are you doing here?” and lunged at Mr. Marshall. HH received cuts to the back of his neck and required multiple stitched. As a result of HH being cut, Mr. Marshall was charged and pled guilty to aggravated assault. He had counsel at that time. When the police arrived and saw what had happened at the front door, Mr. Marshall was charged with break and enter. In the end, Mr. Marshall was charged and pled guilty to assault, aggravated assault and break and enter.
• Mr. Marshall has a criminal record.
• Mr. Marshall agreed that while PB was not necessarily at the forefront of his mind, she was not someone that he had entirely forgotten about. They had talked about PB leaving her boyfriend, starting a relationship with him and her moving in with him. However, when asked during cross-examination about his delay of one minute in remembering who PB was during his police interview, Mr. Marshall responded: “I could not remember her after the interaction and after we stopped talking. I blocked her out of my mind so that was it. I wasn’t interviewed for two months after that had happened. I had completely blocked her out of my mind.” He had completely forgotten that PB existed. Mr. Marshall is a person who drinks and smokes a lot. He meets a lot of people at concerts, etc. and he has a lot of crazy nights. “One girl coming to my apartment breaking things and ripping a shirt is small beans”.
• Mr. Marshall was asked during cross-examination how his DNA got onto PB’s vagina. He responded that PB could have grabbed his hand and used hers afterwards in the bathroom.

[15] There were seven exhibits filed during the trial:

Exhibit 1: extraction report of Facebook Messenger messages between Mr. Marshall and PB Exhibit 2: PB’s selfies Exhibit 3: transcript and disk of the 911 call Exhibit 4: Forensic Evidence Form and Physical Examination Form Exhibit 5: Biology Report dated December 13, 2017 Exhibit 6: Biology Report dated June 27, 2018 Exhibit 7: Mr Marshall’s criminal record

[16] I have described much of the content of the Exhibits when summarizing the evidence of the witnesses. However, it is important to list the relevant information from Facebook Messenger.

October 20, 2017

02:33 – You missed a call from Eric. 02:48 – Wtf lmao 03:21 – hey yyu 09:18 – how are you 09:37 – Listen I know you’re mad or whatever I’m just offering an olive branch for conversation 16:24 – What even happened anyways, like I remember bits and pieces 18:49 – Yoooo 18:50 – Fill me in, there’s blood on my door and a bunch of broken shit 18:55 – you can ignore me as much has you want I just need to know what happened 18:58 – [blank message] 19:00 – I don’t understand why you read the message and just don’t reply, if you’re so mad wouldn’t it be easier to just block me

October 23

18:30 – Hi 19:36 – are you ever going to say anything

Position of the Parties

[17] The parties agree that the main issue in this matter is credibility.

[18] The Defence argues that PB was not a credible witness and that her evidence should not be believed. Her evidence was not reliable. She was inconsistent in her evidence and contradicted herself and other evidence. On the other hand, Mr. Marshall’s evidence was credible and reliable. It was also supported by other evidence.

[19] The Crown argues that Mr. Marshall was not a credible and reliable witness. Mr. Marshall’s evidence had a litany of issues. On the other hand, PB was forthright and honest in her evidence. She did not exaggerate or oversell her evidence. PB was up front about unflattering things for example, at times she was smoking large amounts of marijuana when it was still illegal. She admitted to things put to her during cross-examination and she was not evasive.

Analysis

[20] I will start with a review of the applicable case law in this matter and general principles. During this trial, there were contradictory versions of events between PB and Mr. Marshall. Consequently, I must evaluate the evidence as per the instructions at para. 28 of R. v W.(D.), [1994] 9 S.C.R. 521:

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[21] The Court can accept all, a part, or none of a witness’ evidence. Inconsistencies do not automatically lead the Court to dismiss the witness’ evidence. Even if there are inconsistencies in the evidence, the Court can accept the witness’ evidence above all reasonable doubt.

[22] The accused does not have the burden of explaining the complaints against him (see: R. v. S.(W.), 1994 ONCA 7208, [1994] 18 O.R. (3d) 509 (C.A.)). In addition, the accused does not have the burden of showing that the complainant had a motive to fabricate evidence (see: R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at paras. 48 and 53).

[23] In R. v. B. (L.) (1993), 1993 ONCA 8508, 13 O.R. (3d) 796 (C.A.), the ground of appeal dealt with whether or not the trial judge erred in attributing to the appellant a motive to lie as a reason for disbelieving his evidence. The Court of Appeal for Ontario allowed the appeal and concluded as follows:

7 The impugned passage in the trial judge’s reasons in this case, in my opinion, goes beyond the permissible consideration of the accused’s interest in being acquitted, as one factor to be taken into account when weighing his testimony. It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest in the outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have to testify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be acquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused’s interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for a lie, however, cannot be turned into an assumption that one will occur [emphasis added].

[24] In R. v. Nimchuk (1977), 33 C.C.C. (2d) 2019 (Ont. C.A.), the Court of Appeal concluded that the trial judge had committed an error when he found the accused guilty of fraud. The trial judge found that in order to acquit the accused, he had to conclude that the complainant “framed him” which led to placing the burden of proof on the accused. The trial judge appeared to think that he was faced with a choice between two alternatives, to accept the testimony of the accused, and to conclude that the complainant had framed him or to accept the complainant’s testimony, which required conviction. The Court of Appeal concluded that there was a third possibility: “if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal” (para. 7).

[25] In the Court of Appeal’s decision in R. v. M. (A.W.) (1993), 1993 ONCA 17022, 21 C.R. (4th) 106 (Ont. C.A.), one of the grounds of appeal related to whether or not the trial judge failed to appreciate that he did not have an obligation to make a choice between believing the complainant or the appellant. The Court of Appeal concluded as follows:

2. Although a lack of motive to lay a false charge or give false evidence is a proper matter to be considered in determining the credibility of a person making the charge or giving the evidence, there is no burden on an accused to prove a motive or an explanation for a complainant making such a charge or giving such evidence. The reasons of the trial judge indicate that he was placing the burden on the appellant to prove that the complainant was attempting to falsely convict him, or in the words use in Nimchuk, supra, at p. 210, “framing him”. He erred in so doing [emphasis added] (para. 28).

[26] In R. v. M. (J.) (26 February 2018), Cornwall, 3911-998-16-C1018, (Ont. C.J.), Kinsella J. reviewed the fundamental principles. A criminal trial is not a credibility contest between the accused and the complainant (para. 24). Kinsella J. also reviewed W.(D.). and provided the following at para. 26:

The case of W.D. is essential in reinforcing the fundamental principle that an accused cannot be found guilty simply because the court prefers the evidence of the complainant. As noted by the Court of Appeal in R. v. O.M., 2014 ONCA 503, [2014] O.J. No. 3210:

It is elementary that a complainant’s credibility cannot be established by assuming the accused’s guilt. Nor can an accused’s evidence be rejected simply because the evidence of a complainant is accepted. W.(D.) precludes this “either/or” approach to the assessment of credibility. Instead, under the third step of W.(D.), the trial judge must ask whether, although she may not believe the accused’s evidence, a reasonable doubt arises on the whole of the evidence that she does accept (at para 42.).

[27] In R. v. O.M., 2014 ONCA 503, 318 O.A.C. 390, the Court of Appeal upheld a decision in which the trial judge relied on, in part, the complainant’s tearful demeanor and tone of voice at certain parts of her testimony. The Court of Appeal stated the following:

It is well-established that testimonial demeanour is a proper consideration in the evaluation of a witness’s credibility: see e.g., R. v. J.J.B., 2013 ONCA 268, 305 O.A.C. 201 (Ont. C.A.), at para. 112. In this case, the trial judge provided cogent reasons as to why he viewed the demeanour of each witness, at specific points in their testimony, as significant. Moreover, demeanour was only one of many factors considered by him in his assessment of each complainant’s credibility and reliability (at para. 34).

[28] Furthermore, the Court of Appeal dealt with the issue of demeanor evidence in R. v. Rhayel, 2015 ONCA 377, 334 O.A.C. 181. In this matter, the trial judge attached considerable weight to the complainant’s demeanor. The Court of Appeal stated as follows:

85 … It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.

89 I agree with the suggestion contained at the conclusion of the Court’s analysis in the State Rail Authority decision that it is important for trial judges to bear in mind that, to the extent possible, they should try to decide cases that require assessing credibility without undue reliance on such fallible considerations as demeanour evidence.

[29] Moreover, the case law confirms that while demeanor is a relevant factor in a credibility assessment, demeanor alone is a notoriously unreliable predictor of the accuracy of the evidence provided by a witness. In addition, demeanor alone is not sufficient to convict when there are significant inconsistencies and conflicting evidence in the matter (Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66).

[30] Furthermore, the Supreme Court further reviewed the issue of stereotypical assumptions of how persons react to acts of sexual abuse in R. v. D.D., 2000 SCC 43, 2 S.C.R. 275, at paras. 63 and 65, Major J. stated as follows:

The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: R. v. M. (P.S.) (1992), 1992 ONCA 2785, 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.).

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

Assessment of the Evidence

[31] I begin by assessing the witnesses’ evidence starting with PB’s evidence. She gave her evidence in a forthright manner. She cried and, at times, even sobbed during her testimony. At certain times during her evidence at trial, we had to take breaks in order to allow PB to regain her composure. PB came across as an honest and forthright witness. She did not exaggerate what had happened to her. For example, when describing the anal penetration, she described it as three to four thrusts lasting for three to five seconds. She did not overstate the violence that she suffered at the hands of Mr. Marshall or exaggerate the sexual assault. During cross-examination, she agreed to things that did not put her in good light, for example, she consumed a lot of weed and in the past, had sold weed to Mr. Marshall. PB was not evasive during cross-examination and she was unshaken on the key elements of her evidence.

[32] PB’s version of events was corroborated by other evidence. The Facebook messages corroborate her evidence that Mr. Marshall was excessively drunk on October 19/20. Messages such as “What happened anyways, like I remember bits and pieces” and “Fill me in, there’s blood on my door and a bunch of broken shit” support that Mr. Marshall was very intoxicated, so much so that he could not remember all of the events of October 19/20. PB’s selfies taken at 1:02 a.m. corroborate that at one point, Mr. Marshall left her alone in the living and out of boredom, she took the photos. PB took the last selfie photo inadvertently when she was fleeing Mr. Marshall’s apartment. During PB’s 911 call, she is heard crying and recounting that Mr. Marshall had sexually assaulted her that evening. She was not slurring her words. In addition, the DNA located on PB’s external genitalia is 72 trillion more likely to belong to PB, Mr. Marshall and one unknown individual. Mr. Frappier concluded that the weight of the evidence strongly supports that Mr. Marshall is the source of the DNA located on PB’s external genitalia. This evidence corroborates PB’s evidence that Mr. Marshall sexually assaulted her. Lastly, the testimony of the other witnesses, Mr. Preston, Ms. Gladu, Cst. Ringel, Ms. Ariss and Mr. Frappier each corroborate elements of PB’s evidence.

[33] The Defence attacked PB’s evidence regarding her level of intoxication because she drank a mickey of Captain Morgan in one hour and smoked marijuana. PB’s evidence at trial was that she drinks a lot, now considers herself an alcoholic, and smokes a lot of weed. The overall evidence does not support the Defence’s position on this issue. During the trial, we heard the 911 call. It is clear that PB was upset but it is also clear that she was not slurring her words. Not one witness other than Mr. Marshall testified that PB seemed to be intoxicated, was slurring her words, was unstable on her feet, etc. At 1:02 a.m., PB took selfies when Mr. Marshall left her in the living room. The photos depict PB making funny faces and she does not appear to be intoxicated. PB was able to remember all of the details she provided of what occurred on October 19/20. I find that PB was “buzzed” as she testified but she was not intoxicated as stated by Mr. Marshall.

[34] The Defence points that PB’s evidence was contradicted by Ms. Ariss’ evidence. I disagree. Overall, Ms. Ariss’ evidence corroborates PB’s evidence. It confirms how PB yelled at Mr. Marshall “How can you do that to me?” and “Get off of me” as she described. Although there were slight inconsistencies about PB knocking at Ms. Ariss’ bedroom door during the night and the fact that she was not ill that evening, they do not detract from PB’s overall evidence that she was assaulted and sexually assaulted by Mr. Marshall that evening and that he broke her necklace.

[35] The Defence also attacked PB’s reaction to being choked and then anally penetrated by Mr. Marshall. According to the Defence, PB provided the Court with “evidence of unusual reaction to these assaults”. The Defence questioned that after being choked, PB did not leave Mr. Marshall’s apartment right away. Instead, she remained and tried to collect her thoughts. The Defence submitted that PB did not have a rational explanation for her evidence of how she reacted after being choked and then anally penetrated by Mr. Marshall. The Defence submitted that because anal penetration would be an excruciating painful act that lasted about three seconds, a realistic reaction from PB should have been to scream out in pain instead of yelling “Why are you doing this to me?” This argument does not carry any weight whatsoever. Victims of crime react differently. The Supreme Court of Canada agreed in R. v. D.D. We cannot fall into the trap of myths that a victim should react a certain way; for example, PB should have ran away after she was choked by Mr. Marshall and she should have reacted a certain way after he sexually assaulted her. The Defence’s argument is not acceptable and I completely disagree with it.

[36] The Defence also argued that the medical evidence did not provide any evidence of swelling, bleeding or external tears regarding PB’s anus and rectum. Ms. Gladu, a registered nurse with approximately twenty years of experience, testified that it has not always been her experience to observe redness or swelling in the rectal area if a patient claims to have had anal penetration.

[37] The Defence argued that PB’s version of events did not occur as described and this Court cannot be satisfied of her credibility and reliability. I disagree. When providing her evidence, PB was forthright, her evidence was consistent with external evidence and she was not shaken in cross-examination. In addition, many aspects of her testimony were corroborated by other evidence. While it may be true that at times PB was not clear about time lapses, any inconsistencies raised by the Defence are not significant and do not go to the heart of this matter.

[38] When I review PB’s evidence as a whole, which is corroborated by external evidence, I accept her evidence. I find her to be a credible and reliable witness.

[39] I will turn to Mr. Marshall’s evidence. His version of events regarding the beginning of their evening is similar to PG’s version. They had not seen each other for quite a long time, they had just recently reconnected via Facebook Messenger and had set up a night to hang out. Their intention was to smoke some weed and drink alcohol together. PB was to meet up with Mr. Marshall at the Tunney’s Pasture bus stop and they would then walk over to his apartment. When they arrived to his apartment, they smoked pot, drank two bottles of Captain Morgan and watched YouTube videos. Mr. Marshall also agreed that PB was having issues with the phone charger.

[40] There were quite a few important inconsistencies in Mr. Marshall’s testimony. He testified that he was not intoxicated when he was with PB. His evidence was contradicted by PB’s evidence and his Facebook messages to her at 16:24 and 18:50 on October 20th. The evidence supports that he was very intoxicated and did not remember all of the events of his time with PB: he remembered “bits and pieces”. I reject Mr. Marshall’s evidence that he was not intoxicated when he was with PB on October 19/20.

[41] During his police interview, Mr. Marshall started off by not recalling PB. This was someone who he had known for over ten years, he testified that he was interested in starting a relationship with her and talked to her about moving in with him if she left his boyfriend. He testified as follows: “I could not remember her after the interaction and after we stopped talking. I blocked her out of my mind so that was it. I wasn’t interviewed for two months after that had happened. I had completely blocked her out of my mind…One girl coming to my apartment breaking things and ripping shirt is small beans”. His evidence on this point is not believable and I reject it.

[42] In Mr. Marshall’s statement to police, he said that PB was yelling at his roommate that she was a “slut” and a “bitch”. “Even my roommate came out and said what are you guys arguing about and I was like I don’t know she is just freaking out mad, she gets up and is yelling and screaming and yelling all crazy shit, yelling at me and my roommate”. This was not corroborated by Ms. Ariss’ testimony. To the contrary, she was sympathetic towards PB. During his testimony at trial, Mr. Marshall changed his version of his story by saying he was standing at Ms. Ariss’ bedroom door. Ms. Ariss went to her doorway. He went on to say that he should not have used the term yelling because PB was just raising her voice. His evidence on this issue is not believable and I reject it.

[43] Mr. Marshall’s evidence regarding having to “strong armed” PB out of his apartment and having to lock her out is not believable. He testified that he could hear PB outside crying, yelling and sobbing for at least five to ten minutes then she went down the street. This version is totally different from what he told Det. Paquette during his police interview. He told Det. Paquette that it was not him that heard PB outside but was instead his roommate. Once this contradiction was put to him during cross-examination, it was clear that he was trying to manipulate his answer. His evidence on this point is not believable and I reject it.

[44] At the beginning of his testimony at trial, Mr. Marshall tried to paint himself as having “been defending people of this nature and it is now weird to be on the other side”. He testified that in 2009, he had gone to the penitentiary for fighting a guy who sexually assaulted a girl that he knew. In the end, he was charged and pled guilty to assault, aggravated assault and break and enter. I find that his description of these events in 2009 is very questionable.

[45] The Defence argues that Mr. Marshall’s evidence was unshaken in cross-examination. As I have just previously described, I disagree. Mr. Marshall was cross-examined about the contradictions and inconsistencies between the evidence provided in his police statement and the evidence presented during the trial. As noted above, I have rejected much of his evidence about what happened between him and PB on October 19/20.

[46] I find that overall, Mr. Marshall’s evidence is not believable about what occurred between him and PB after he left her alone in the living room. He tried to explain things away and contradicted himself on quite a few occasions.

[47] With regards to the other witnesses called by the Crown, there is nothing that leads me to believe that they are nothing but credible witnesses. Their evidence was mainly unchallenged by the Defence.

[48] I now turn to the three steps in R. v W.(D.). First, I do not believe the evidence of Mr. Marshall about what occurred between him and PB on October 19/20. Second, I do not believe the testimony of Mr. Marshall and I am not left in reasonable doubt by it. Third, even if I am not left in doubt by Mr. Marshall’s evidence, on the basis of the evidence that I accept, I am convinced beyond a reasonable doubt by the evidence of Mr. Marshall’s guilt with regards to Counts #1, 2, 3, 4, and 5. I do not accept Mr. Marshall’s evidence about what occurred between him and PB on October 19/20. Not only is PB’s evidence credible and reliable, it is corroborated by external evidence as discussed above.

[49] Overall, based on all of the evidence as a whole, I am convinced beyond a reasonable doubt that Mr. Marshall is guilty of Counts #1-5.

Conclusion

[50] Based on my findings regarding the overall evidence with regard to Count #1 as per s. 266 (assault) of the Code, I find the Crown has proved beyond a reasonable doubt that Mr. Marshall intentionally applied force to PB, that she did not consent to the force that he applied and that Mr. Marshall knew that PB did not consent to the force that he applied. Consequently, I find Mr. Marshall guilty of the charge as per s. 266 of the Code.

[51] Based on my findings regarding the overall evidence with regard to Count #2 as per s. 271 (sexual assault) of the Code, I find the Crown has proved beyond a reasonable doubt that Mr. Marshall intentionally applied force to PB, she did not consent to the force that Mr. Marshall applied, he knew that PB did not consent to the force that he applied and the force that Mr. Marshall applied took place in circumstances of a sexual nature. Consequently, I find Mr. Marshall guilty of the charge as per s. 271 of the Code.

[52] Based on my findings regarding the overall evidence with regard to Count #3 as per ss. 430(1)(a) (mischief) of the Code, I find that the Crown has proved beyond a reasonable doubt that Mr. Marshall damaged PB’s necklace (he agreed that it was broken during his testimony at trial), and his conduct was wilful. Consequently, I find Mr. Marshall guilty of the charge as per ss. 430(1)(a) of the Code.

[53] With regards to Counts #4-5, since the probation orders were admitted, I find Mr. Marshall guilty of breaching his probation orders as per ss. 733.1(1) of the Code.

Justice M. O’Bonsawin Released April 15, 2019