WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Marshall, 2015 ONCA 518
DATE: 20150709
DOCKET: C57220
Strathy C.J.O., MacPherson and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Daniel Marshall
Appellant
Alan D. Gold and Melanie Webb, for the appellant
David Finley, for the respondent
Heard: July 6, 2015
On appeal from the conviction entered on April 29, 2013 and the sentence imposed on July 3, 2013 by Justice R. Reid of the Superior Court of Justice, sitting without a jury.
ENDORSEMENT
[1] The appellant was convicted of one count of sexual assault and sentenced to eight months imprisonment (less six days pretrial custody.) He appeals his conviction and sentence and seeks to introduce fresh evidence.
[2] The appellant is a pediatrician whose practice focused on children with behavioural problems. He was charged with 32 counts of sexual assault and sexual interference. Twenty-nine of those counts were based on allegations involving 20 of his former patients. They were all young boys treated by the appellant prior to or during puberty. The remaining three counts involved two complainants who were not patients.
[3] Following a detailed analysis, the trial judge acquitted the appellant of all counts relating to the patients, and of two counts relating to one of the non-patients. The trial judge convicted the appellant of sexual assault with respect to one count relating to the other non-patient complainant, “PM”.
[4] PM met the appellant when he was a grade nine high school athlete. The appellant was involved with students as a medical doctor and a wrestling coach. The appellant also took part in a Bible study group for students at the school. PM had a challenging home life. At the age of 15, he was living on his own in a boarding house. The appellant befriended him, gave him food, gifts, football cleats, a camping trip and regularly invited him and his friends to his home.
[5] PM testified about three events which gave rise to the allegations in question: one in the kitchen; another involving his sore back; and a third event on the couch. The appellant also testified about each incident.
[6] The kitchen incident happened at the appellant’s home. PM was 16 years old. He testified that he was standing in the doorway to the kitchen; the appellant came to him from behind, slid his hand under his shorts and grabbed his genitals. The appellant testified that PM had made a “smart aleck” remark and he grabbed him by the waist as if to tackle him. This type of rough-play was routine in the appellant’s home. When PM accused him of touching his genitals, the appellant said he told him he was sorry. The appellant testified that he apologized, not because he touched his genitals, but just because he wanted the matter resolved. He denied touching PM’s genitals.
[7] The back incident occurred later when PM was 18 years old. PM asked the appellant to look at his sore back. He testified that the appellant asked him to take off his shirt and then to bend over in front of him. He said the appellant rubbed his crotch against PM’s behind. The appellant testified that he might have bumped into PM but there was no grinding activity.
[8] The couch incident, according to PM, occurred when he was alone in the appellant’s house sitting on the couch with him. He said that the appellant hugged him and then lay on top of him. PM managed to break free and ran out. PM testified that the appellant said that he was just hugging him and “I am not trying to fuck you yet.” The appellant denied these events.
[9] The trial judge reviewed this evidence and said this:
Once again, I have applied the R. v. W. (D.) analysis. I do not find [the appellant’s] evidence convincing as to his version of any of the three incidents. There appears to have been a pattern of behaviour in the incidents described. [The appellant’s] explanation for any of the three incidents does not leave me with a reasonable doubt nor when I consider the evidence as a whole relating to each of the three incidents am I left with a reasonable doubt as to the offence charged.
The Conviction Appeal
[10] The appellant raises several grounds of appeal. They can be grouped into five general categories: (1) the trial judge’s reasons were insufficient to support a conviction; (2) the trial judge misapplied the WD analysis; (3) the trial judge misapprehended the evidence; (4) the trial judge improperly applied similar fact reasoning; and (5) the trial judge did not adequately assess the frailties of PM’s evidence. We address each of these issues.
[11] The appellant submits that the trial judge’s reasons are insufficient because they do not make it clear which of the three incidents formed the basis for the conviction. We do not agree. A fair reading of the trial judge’s reasons demonstrates that he rejected the evidence of the appellant and accepted the evidence of PM in connection with all three events. Count 20 of the indictment does not particularize the circumstances of the sexual assault. Once the trial judge was satisfied beyond a reasonable doubt that the three events took place as described by PM, the elements of the offence were made out.
[12] The appellant submits that the trial judge erred in omitting the third step of R. v. W. (D). We do not agree. The trial judge – who is presumed to know the law – referred to WD more than once in the reasons at large. The trial judge rejected the appellant’s testimony and indicated that the evidence in its entirety did not raise a reasonable doubt. He therefore determined that the evidence of the appellant did not raise a reasonable doubt and that he was satisfied on the whole of the evidence that the Crown’s case had been established beyond a reasonable doubt.
[13] The appellant submits that the trial judge misapprehended the evidence of the apology given by the appellant to PM after the kitchen incident. The trial judge found it “strange” that he would apologize for an event that did not take place. The appellant submits that he was not apologizing for his conduct, but rather expressing regret that the complainant thought it was inappropriate. He testified that he was also trying to end the issue. It was open to the trial judge to be sceptical of the appellant’s testimony in connection with an apology.
[14] The appellant refers to the trial judge’s statement that “There appears to have been a pattern of behaviour in the incidents described.” It is submitted that he applied impermissible similar fact reasoning. The Crown submits that the pattern referred to is in regard to the appellant’s explanation for the events, not a pattern of behaviour with respect to the allegations. We accept that there are two ways of reading the passage referred to. Even if we agreed with the appellant’s interpretation, we would apply the curative proviso of section 686(1) (b) (iv) of the Criminal Code. The alleged perpetrator and victim are the same in each of the incidents. A similar fact application would most certainly have been allowed.
[15] The appellant submits that the trial judge did not adequately assess the frailties of PM’s testimony and was unfairly critical of the appellant. In particular, he takes issue with: the trial judge’s minimization of PM’s description of the order of events; the change in PM’s testimony about whether the appellant had an erection during the back incident; the trial judge’s views as to the appellant’s account of PM seeking medical help for his back; the trial judge’s treatment of the blood test ordered by the appellant; and the trial judge’s description of the appellant’s evidence as “more vague.” The appellant is seeking to have this court retry the factual findings made by the trial judge. There was an evidentiary basis for each finding he made. We would not give effect to this ground.
Fresh evidence application
[16] The appellant seeks to admit evidence showing that PM suffered from PTSD, anxiety and depression following his return from active military service in in 2010 and indulged in alcohol and cocaine to cope. The appellant also seeks to admit evidence that, in 2006, PM had been charged with two counts of assault causing bodily harm and two counts of assault, but a stay of proceedings was entered after a co-accused pleaded guilty.
[17] We do not admit the fresh evidence.
[18] The principles governing the admissibility of fresh evidence on appeal are outlined in R. v. Palmer, [1980] 1 S.C.R. 759 at p. 775. The applicant must satisfy four criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[19] The proposed evidence does not meet this test. It was available at the time of trial in that it was posted on the internet. It was known at the time of trial that PM had served in a particularly dangerous tour of duty. He was not questioned about the effects of this activity, about whether he had counselling or whether he had difficulties in this regard. The proposed evidence does not bear on a potentially decisive issue in the case: as the Crown points out, the divergence in the testimony of the appellant and of PM is extraordinarily minor. We note that the stay of the criminal charge would be, after a year, deemed to have not been laid. The fresh evidence would be unlikely to have affected the outcome.
Sentence Appeal
[20] The appellant submits that the trial judge erred in not granting a conditional sentence. The submissions of the appellant with respect to section 11 (i) of the Charter are academic. The sentencing judge found that a conditional sentence was available but declined the appellant’s request.
[21] We see no reason to interfere with the trial judge’s exercise of discretion in this regard. The appellant has failed to identify an error in principle, or to demonstrate that the sentence is demonstrably unfit. The eight-month custodial sentence was not demonstrably unfit. We note that defence counsel submitted that six-nine months in custody would be reasonable.
Summary
[22] The conviction appeal is dismissed. Leave is granted to appeal the sentence, but the sentence appeal is dismissed.
“G.R. Strathy C.J.O.”
“J.C. MacPherson J.A.”
“M.L. Benotto J.A.”