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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
Laskin, Simmons and Cronk JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
R.L.
Appellant
Joseph Wilkinson, for the appellant
Gavin MacDonald, for the respondent
Heard: June 17, 2013
On appeal from the convictions entered by Justice Robert W. Beninger of the Ontario Court of Justice on August 25, 2009, and from the sentence imposed by Justice Beninger on October 13, 2009.
1The appellant was convicted of two counts each of sexual assault, gross indecency and indecent assault on a male arising from incidents of historical sexual abuse of his step-nephew, S.M., and his stepson, D.L. He was sentenced to six years’ imprisonment, plus credit on a two-for-one basis of one year and eleven days for 188 days of pre-sentence custody. He appeals from his convictions and applies for leave to appeal his sentence.
A. Conviction Appeal
2The appellant advances three grounds in support of his conviction appeal.
(1) Ineffective Assistance of Counsel
3First, the appellant argues that his trial counsel’s assistance was ineffective, leading to a miscarriage of justice. He asserts that the following aspects of his trial counsel’s performance fell below the applicable standard of competence: (1) his failure to cross-examine the two complainants on their alleged prior inconsistent statements about whether they had discussed the appellant’s abusive conduct before reporting it to the police; (2) his failure to re-examine the appellant at trial to confirm his assertion that the complainants’ police statements indicated that they had discussed their sexual abuse allegations with one another before complaining to the police; and (3) his failure to call as witnesses at trial two people to whom the complainant S.M. said he had disclosed the appellant’s abuse years before he reported it to the police.
4I would reject this ground of appeal.
5The governing test for a claim of ineffective assistance of counsel is an exacting one. As indicated by the Supreme Court in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26, for an appeal to succeed on this ground it must be shown, first, that trial counsel’s conduct constituted incompetence and, second, that a miscarriage of justice resulted.
6With respect to the first requirement, the Supreme Court explained in G.D.B., at para. 27:
Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.
7G.D.B. also cautions, at paras. 28 – 29:
Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised.
In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow. [Citations omitted.]
8Applying these principles to the facts of this case, as amplified by the fresh evidence filed on appeal, I am not satisfied that the appellant has met the high threshold for establishing an ineffective assistance claim. In accordance with G.D.B., I turn first to the issue of prejudice amounting to a miscarriage of justice.
(a) The Failure to Examine on the Collusion Issue
9I accept that there was information available to trial counsel that might have grounded cross-examination of the complainants on the issue of their possible collusion. However, the mere possibility of cross-examining the complainants on this issue falls short of demonstrating that the failure to do so gave rise to a miscarriage of justice.
10The evidence of possible collusion between the complainants was weak, at best. The complainants’ statements to the police, especially D.L.’s initial statement, did not suggest that the complainants had discussed the nature or details of the appellant’s abuse prior to reporting it to the police. Indeed, fairly read, the complainants’ comments to the police on the issue of their pre-complaint contact suggest only that they had discussed the fact of the appellant’s abuse of them.
11This is not materially inconsistent, in my view, with the complainants’ trial testimony on this issue. In my opinion, the answers the complainants provided when questioned at trial on their prior communications were responsive to the questions asked and were not clearly inconsistent with their earlier statements to the police.
12In these circumstances, I agree with Crown counsel’s submission that the potential impeachment value of the complainants’ prior statements could not reasonably have affected the result at trial. Neither the available pre-trial information, nor the fresh evidence establishes that the complainants’ communications prior to giving their police statements involved any discussion of the assaults that they had each experienced. Contrary to the appellant’s submission, this evidence also does not suggest that S.M. was “fishing” for corroboration of his complaint after his police interview and that he schemed to have D.L. advance an independent complaint. The mere opportunity for collusion or collaboration does not establish an air of reality to either.
13I conclude that trial counsel’s failure to cross-examine the complainants on their police statements to elicit evidence of possible collusion did not result in a miscarriage of justice. The suggestion that further cross-examination on this issue would have affected the trial judge’s decision is speculative.
14It follows that counsel’s decision not to re-examine the appellant on the same issue also did not result in a miscarriage of justice. As I have said, although the complainants’ police statements confirm that the complainants were in contact prior to D.L.’s complaint to the authorities, they do not reveal collusion or collaboration between the complainants about the details of the appellant’s abuse or the substance of the complainants’ individual allegations. In these circumstances, re-examination of the appellant on the statements may well have done more harm than good to the appellant’s testimonial credibility.
15I note that the trial judge was aware of the fact of contact between the complainants. In his reasons, he expressly acknowledged the evidence of this contact, but stated that, “there was no evidence before the court of any planning between them to mislead the police investigation or fabricate evidence in this court proceeding.” This characterization of the evidence before the trial judge was accurate. I see nothing in the fresh evidence tendered on appeal that suggests a conclusion to the contrary.
(b) The Failure to Call Witnesses
16I similarly conclude that trial counsel’s decision not to call two witnesses whom the appellant had suggested should testify at trial did not occasion a miscarriage of justice.
17In his police statements, S.M. claimed that he had disclosed the appellant’s abuse of him to various individuals at various times. The people he claimed to have told included S.D. – his former school guidance counsellor – and L.P. – one of his former girlfriends. When the police interviewed S.D. during their investigation, however, she maintained that she did not recall S.M. disclosing a sexual assault to her and that, if he had done so, she would have reported the incident. L.P. also told the police that she did not recall S.M. disclosing details of a sexual assault. Furthermore, L.P. could not recall the occasion on which S.M. said that he had disclosed the abuse to his stepmother in L.P.’s presence.
18The appellant suggested to his trial counsel that both S.D. and L.P. be called as witnesses at trial to undermine S.M.’s disclosure claim. After discussion with the appellant, his trial counsel declined to do so.
19The appellant concedes that trial counsel’s failure to call these prospective witnesses, by itself, does not constitute ineffective assistance of counsel. However, he argues that this failure, coupled with trial counsel’s failure to interview S.D. and L.P., fell below the requisite standard of professional competence. He asserts that his trial counsel’s decisions not to interview or call these witnesses were based on speculative and unreasonable considerations, rather than reasonably diligent inquiries into what their evidence would be. The appellant argues that these decisions contributed to a miscarriage of justice.
20I disagree. The appellant did not file fresh evidence on appeal demonstrating what these witnesses would have said at trial, if they had been called to testify. In the absence of some clear indication of the nature of S.D.’s and L.P.’s potential evidence and that it was material and may have affected the outcome of the appellant’s trial, there is no basis for concluding that the failure to interview or call these witnesses caused a miscarriage of justice. On the record before this court, the appellant’s submissions in this regard are again speculative.
21I therefore accept the Crown’s submission that, on this record, there is no reason to conclude that trial counsel’s conduct concerning these potential witnesses contributed to a miscarriage of justice.
(2) Admission and Assessment of Similar Act Evidence
22The appellant submits that the trial judge erred by using the evidence of each of S.M. and D.L. as similar act evidence across the various counts in the indictment, in the absence of a Crown application for the admission of each complainant’s evidence as similar act evidence in respect of the other. In a related submission, the appellant contends that his trial counsel’s failure to object to the admission of each complainant’s evidence as similar act evidence is a further illustration of his ineffective assistance at trial.
23In my opinion, these submissions are unsustainable. At its core, the appellant’s complaint is that the trial judge relied on the evidence of each complainant as corroborative of the testimony of the other regarding the appellant’s sexually abusive acts, and to support the conclusion that the alleged acts in fact occurred.
24It is true that near the end of his reasons, the trial judge listed what he viewed as consistencies between the complainants’ accounts of events. These included their descriptions of some of the appellant’s abusive sexual acts, particularly the method he used to masturbate the complainants.
25The reasons reveal, however, that the trial judge first reviewed the evidence of the appellant and, then, the testimony of each complainant individually before he turned to a consideration of these perceived consistencies. In so doing, the trial judge noted those parts of each complainant’s account that the appellant himself confirmed, and concluded that the evidence of each complainant, considered on its own, was credible and reliable. Only after undertaking these individual assessments did the trial judge refer to any consistencies between the complainants’ evidence.
26Ultimately, the trial judge held that the appellant was guilty of counts four through seven on the indictment, “[b]ased on the evidence of [S.M.] which is, in part, corroborated by details provided by the [appellant].” The trial judge further held that the appellant was guilty of counts one and two on the indictment, “[b]ased on the evidence of [D.L.] which is, in part, corroborated by details provided by the [appellant].”
27In my opinion, the trial judge’s reasons, as written and structured, leave no doubt that he scrutinized and accepted the testimony of each complainant on its own and in the context of all the evidence, including that provided by the appellant. In light of his factual findings, it is clear that the trial judge would have reached the same conclusion regardless of his assessment of the consistencies between the complainants’ accounts of events. At the end of the day, his determination of the appellant’s culpability was grounded in his assessment of the appellant’s evidence and his assessment of each complainant’s testimony individually, as corroborated in part by the appellant himself.
28I would not give effect to this ground of appeal.
(3) Assessment of the Appellant’s Evidence
29The appellant thirdly complains that the trial judge erred in his assessment of the appellant’s evidence: (1) by considering the appellant’s response when S.M. confronted him with allegations of abuse; (2) by relying on an inconsistency between defence counsel’s “theory of the case” and the appellant’s testimony regarding the complainant D.L.; and (3) by failing to assess the appellant’s evidence in the context of the whole of the evidence.
30Again, I disagree. I see no error in the trial judge’s evaluation or rejection of the appellant’s evidence.
31The trial judge was entitled to consider the appellant’s response to S.M.’s confrontation of him, many years after the abuse took place. The trial judge accepted S.M.’s account of what occurred during this confrontation and rejected the appellant’s account where it conflicted with that of S.M. This was the trial judge’s call to make.
32Moreover, the trial judge did not err by observing that the appellant’s claim that he did not physically assault D.L. as a child contradicted the thrust of his counsel’s cross-examination of D.L. Counsel suggested to D.L. that the appellant had beaten him as a child and that it was this abuse that prompted D.L.’s later allegation of sexual abuse by the appellant. D.L. disagreed.
33As I read his reasons, the relevance of the trial judge’s observation was not the apparent conflict between defence counsel’s suggestion to D.L. that the appellant’s physical abuse of him had driven D.L.’s later complaint of sexual abuse and the appellant’s denial of any physical abuse of D.L. Rather, the trial judge’s focus was on the creditworthiness of the appellant’s testimony in denying any physical abuse of D.L., and his explanation for why his denial should be accepted, in light of D.L.’s evidence concerning the appellant’s physical as well as sexual abuse of him. Scrutiny of this part of the appellant’s testimony formed part of the trial judge’s overall assessment of his credibility; it was not the sole or even a predominant basis for the trial judge’s adverse evaluation of the appellant’s credibility.
34I would also reject the appellant’s contention that the trial judge assessed his evidence in isolation, without regard to the whole of the evidence adduced at trial. The trial judge’s reasons belie this claim.
35The reasons reveal that the trial judge carefully reviewed the appellant’s and the complainants’ testimony. He rejected the appellant’s evidence on the points essential to the charged offences, having properly instructed himself on the requirements of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. In contrast to the appellant, he found each of the complainants to be credible and reliable. That he considered the appellant’s evidence in the context of the whole of the evidence is apparent from his observations, both during his evaluation of the complainants’ testimony, and again, in his final conclusions, that the appellant’s testimony confirmed many aspects of the complainants’ accounts of events. These observations indicate that the trial judge’s final evaluation of the appellant’s testimony was properly based on the entirety of the trial evidence.
36This ground of appeal also fails.
B. Sentence Appeal
37The appellant acknowledges that his sentence is within the appropriate range for the serious crimes of which he was convicted. I agree.
38However, the appellant seeks a reduction in his sentence based on fresh evidence of his current heart condition and ongoing problems with an ulcer on his back. Crown counsel consented to the admission of this fresh evidence.
39I accept that the appellant suffers from serious health problems that have necessitated numerous attendances at the hospital during his incarceration. Nonetheless, the record before this court, including the fresh evidence of the appellant’s medical condition and treatment, does not support the conclusion that the appellant has received inadequate medical care in prison. To the contrary, the record suggests that the appellant has received timely and adequate treatment of his illnesses while incarcerated.
40The appellant also complains that he has not received a requested mattress, required for his back ailment. The provision of this type of equipment is a matter for the correctional authorities. That said, if the therapeutic need for such an aid is confirmed by the appellant’s health care providers, the institution where he is currently detained should take all available steps to provide the appropriate mattress.
41I note that the appellant’s statutory release date is October 12, 2013.
42In all these circumstances, I see no basis for appellate interference with the sentence imposed.
C. Disposition
43Accordingly, for the reasons given, I would dismiss the conviction appeal. I would grant leave to appeal sentence, but would also dismiss the sentence appeal.
Released:
“AUG 1 2013” “E.A. Cronk J.A.”
“EAC” “I agree John Laskin J.A.”
“I agree Janet Simmons J.A.”
