COURT FILE NO.: CR-23-40000007-00AP

DATE: 20231006

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

JOHN MARQUIS

A. Del Rizzo, for the Crown, Respondent

M. Biddulph, for Mr. Marquis, Appellant

HEARD: 30 June 2023

S.A.Q. AKHTAR J.

On appeal from the conviction entered on 5 July 2022 and the sentence imposed on 7 December 2022 by Justice John McInnes of the Ontario Court of Justice.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] On 5 July 2022, the appellant was convicted of the offence of sexually exploiting a 13-year-old girl between the 1 March 1995 and 31 July 1995. He was sentenced to a 14-month conditional sentence with a probation order for three years. He appeals both conviction and sentence.

The Background Facts

The Complainant’s Testimony

[2] The appellant, then 26 years old, was a youth pastor at the Mimico Baptist Church in Etobicoke where the complainant, then 13 years old, attended as a member of the youth group.

[3] The appellant became the youth group leader and would meet with the group on a weekly basis, organising social events such as camping trips. In the summer of 1995, the appellant and his wife hosted the complainant for a sleepover at their apartment. During the day, the complainant accompanied the appellant as he completed errands. In the evening, she stayed in the apartment with the appellant and his wife. The next morning, the appellant took her on a tour of the apartment. They ended up in his bedroom.

[4] The appellant laid down on his bed whilst the complainant remained standing at its edge. They engaged in conversation and the appellant suggested she get on the bed. She agreed and sat cross-legged facing him. The appellant encouraged the complainant to lay on his shoulder because it appeared that her neck might be causing her discomfort. After she did so, he began kissing her and repeatedly thrust his tongue into her mouth. The complainant played along because she did not know what to do.

[5] The appellant lifted her on top of him so she was straddling him. She testified that she could feel his erect penis between her legs. After a few minutes, the kissing stopped, and the complainant lifted herself off the appellant. Afterwards, as the two had breakfast, the appellant told the complainant that they needed to discuss what had happened, but she remained silent.

[6] In the weeks and months that followed, the complainant testified that she felt ostracised from other members of the youth group. She came to believe that the appellant had fabricated an account of what had happened to cast blame from the incident on her.

The Appellant’s Evidence

[7] The appellant denied the allegations. He testified that on the morning of the incident, his wife had gone to work, and he had remained asleep in bed. He awoke to find the complainant standing in his bedroom doorway staring at him.

[8] The appellant said that the complainant entered the room and, without warning, told him that she "knew how to give a blow job". The appellant believed that she was trying to disclose a sexual assault complaint she made previously against a boy at school. When the appellant asked the complainant if that was what she was talking about, she did not respond.

[9] When he tried to get out of bed, the complainant leaned forward and kissed him. The appellant said he was startled and froze before leaving the room. He said the only time he discussed the incident with the complainant was when she was waiting for her mother to pick her up from school.

[10] The appellant reported the incident to his wife. He also informed the church hierarchy discussing the matter with Rob Palumbo Sr., the Deacon who advised him to disclose the incident to the complainant's mother but no one else. The appellant also spoke with the Deacon’s wife, Barbara Palumbo, who agreed with her husband.

[11] Ms. Palumbo gave evidence for the Crown. She confirmed her discussions with the appellant. However, her account of the conversation differed from that of the appellant. She said that the appellant had told her the complainant contacted him and asked to come to his house. When she arrived, the appellant’s wife left for work. The complainant had asked him to kiss her because she wanted to know what it felt like to be kissed by a “real man”. The appellant acceded to the complainant’s request only to "shut her up". There were no other details of the kiss.

[12] In cross-examination, Ms. Palumbo agreed that when she had first spoken to the police, she had told them a slightly different account - that the appellant told her the complainant had asked him to kiss her and they did. There was no reference to his kissing her to “shut her up”. However, when confronted with this disparity, Ms. Palumbo recalled providing this additional information to an officer at a prior witness preparation meeting. In an agreed statement of facts, the Crown conceded that this was not the case.

[13] The trial judge found the Crown had proven its case beyond a reasonable doubt and convicted the appellant, subsequently sentencing him to a 14-month conditional sentence order and probation for three years.

GROUNDS OF APPEAL

[14] The appellant advances three grounds of appeal:

1. When convicting the appellant, the judge erred in the application of R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742;

2. The judge failed to properly assess the reliability of the Crown witnesses; and

3. The judge erred in imposing a sentence that exceeded the maximum term available.

ANALYSIS

Did the Trial Judge Misapply the W.D. Analysis?

[15] The appellant argues that the trial judge committed a W.D. error by misinterpreting the comments of the Court of Appeal for Ontario in R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69.

[16] J.J.R.D. was a sexual assault case where the appellant argued that the trial judge had failed to properly explain the rejection of his evidence when convicting him. The court dismissed the appeal and held that the reasons for conviction were apparent in the judgement and the trial judge’s reasons allowed for effective appellate review. At para. 53, Doherty J.A. stated that:

… The trial judge totally rejected the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[17] The appellant submits that J.J.R.D. focused on the sufficiency of reasons on appeal and did not create a separate route for a trier of fact to convict an accused by simply choosing the complainant’s version of events over the accused’s account of what had happened. This, says the appellant, is what happened in the instant case. For the following reasons I disagree.

[18] First, contrary to the appellant’s submissions, the judge did not convict simply because he believed the complainant. Not only did the judge explicitly reference the complainant’s testimony, but he also referenced the critical testimony of Ms. Palumbo who confirmed that the appellant had told her that he had kissed the complainant if only “to shut her up”. The judge rejected the appellant’s evidence that he had done so to “shut her up” and found that he did so “for a sexual purpose”. That was a finding the judge was entitled to make on the evidence.

[19] Moreover, the judge was fully aware of the need to avoid a credibility contest. Both the W.D. test and the required burden of proof that lay with the Crown were referenced. He addressed many of the apparent faults with the complainant’s testimony such as a failure to remember some of the specific details of the day of the event. The judge found that it was hardly surprising that details such as the clothing the complainant was wearing and the exact date of the event would be forgotten. The incident had occurred many years earlier when she was just 13 years old. The judge also considered and rejected the defence argument that the complainant was driven to fabricate her evidence because of her desire to launch a civil suit against the appellant.

[20] The critical difference between the instant case and J.J.R.D. is the presence of an independent witness, that being Ms. Palumbo. The judge identified the reasons why he found her evidence to be credible including the fact that she had no apparent motive to lie as well as the unusual nature of the appellant’s admission that he had kissed the complainant.

[21] The appellant’s submissions that Ms. Palumbo’s evidence was equally supportive of both the complainant and his testimony do not survive scrutiny. The appellant testified that the complainant had kissed him and he had left the room after being startled by her actions. Ms. Palumbo’s evidence, if accepted, clearly contradicted this version of events, and supported the complainant’s testimony to the extent that the applicant had kissed her even though he claimed it was not for a sexual purpose.

[22] It was also open to the trial judge to decide that the appellant had made this admission to Ms. Palumbo to “get ahead of the story” as a self-protection measure. It is worth noting that the judge used Ms. Palumbo’s evidence as a factor in rejecting the appellant’s evidence - an analysis which accorded with the W.D. test.

[23] For these reasons, I would not give effect to this ground of appeal.

Did the Trial Judge Err in the Reliability Analysis?

[24] The appellant also argues that the judge erred in failing to assess the complainant’s and Ms. Palumbo’s reliability. I disagree.

[25] For reasons already explained, the judge analysed both witnesses’ evidence and concluded they were worthy of belief. This is not a case like R. v. Sanichar, 2012 ONCA 117, 280 C.C.C. (3d) 500, rev’d 2013 SCC 4, [2013] 1 S.C.R. 54, where the judge confused credibility and reliability. The judge in the instant case undertook a thorough examination of both witnesses’ testimony identifying potential pitfalls and specific discrepancies before explaining why he found both witnesses’ evidence to be sufficiently reliable to provide grounds for a conviction.

[26] With great respect, the appellant’s arguments on this point strike me as an attempt to re-litigate findings of fact that were within the sole purview of the trial judge – findings that attract deference.

[27] For these reasons, the conviction appeal is dismissed.

Did the Judge Err in the Imposition of the Sentence?

[28] Both parties agree that the judge erred in imposing a sentence unknown in law at the time of the offence.

[29] In 1995, when the offences occurred, the maximum sentence available on conviction was 6 months imprisonment. This was recognised by the judge when the parties made submissions on sentencing. However, after reserving his decision on sentence, the judge imposed a conditional sentence of 14 months with a probation order for 3 years. Since a conditional sentence is, in legal terms, a sentence of imprisonment, the sentence exceeded what was permissible at the time.

[30] At the time of the hearing, the appellant had served 6 months and 23 days of his sentence. The respondent agrees with the appellant’s request that the sentence appeal should be allowed with the sentence varied to time served and the probationary period removed.

[31] Accordingly, the sentence appeal is allowed, and the sentence is varied in accordance with the terms agreed to by the parties.

S.A.Q. Akhtar J.

Released: 6 October 2023

COURT FILE NO.: CR-23-40000007-00AP

DATE: 20231006

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

JOHN MARQUIS

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.