WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Watt and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Paul Gibson
Appellant
Brian Snell, for the appellant
Megan Petrie, for the respondent
Heard: November 3, 2020 by video conference
On appeal from the convictions entered by Justice Michael Code of the Superior Court of Justice on February 13, 2012, and from the sentence imposed on February 1, 2013.
1The appellant, Paul Gibson, volunteered at a food bank. There he met and befriended J.C. He learned that J.C. was a grandmother. Her grandchildren were both boys, then seven and four years old.
2Over time, the appellant became part of the boys’ lives. He often saw the boys. He took them on outings. He babysat them. He bought them gifts. He slept over at their grandmother’s house and at the older boy’s home.
3Late the following year, police arrested the appellant on six counts of sexual offences involving both boys.
4After a trial before a judge of the Superior Court of Justice, the appellant was found guilty of sexual assault of one of the boys, R.K., and of sexual assault causing bodily harm of the other, A.C. The Crown was successful in having the appellant declared a dangerous offender. The trial judge imposed a sentence of detention for an indeterminate period.
5The appellant appeals his convictions of the predicate offences, the decision declaring him a dangerous offender and the indeterminate sentence imposed on him.
6These reasons explain why I would dismiss the appeals.
The Background Facts
7The indictment alleged four offences against R.K., counts of sexual assault and sexual assault causing bodily harm and two counts of sexual interference. Each pair of counts was alleged to have occurred over a specific period of months, with some overlap between the periods.
8The indictment also included two counts alleging offences of sexual assault causing bodily harm and sexual interference against A.C. These counts were also duplicative and related to the same period of time as those charged in respect of R.K.
9The trial judge found the appellant guilty on all counts. He entered convictions of sexual assault on the count charging sexual assault causing bodily harm against R.K. and a conviction of sexual assault causing bodily harm on the count charging that offence against A.C. The judge entered stays of his findings on the remaining counts as duplicative or in accordance with the rule against multiple convictions (see Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729).
The Principals and their Relationship
10During the relevant time, the appellant was a 33-year-old single man who lived in Parkdale and worked at a printing business in Scarborough. He volunteered at a food bank near where he lived.
11J.C. was a grandmother who visited the food bank at which the appellant volunteered. She lived in a small apartment nearby, a few minutes away from where the appellant lived.
12S.C. and N.C. were J.C.’s daughters. R.K. lived with his mother, S.C. Their house was about 40 minutes away from J.C.’s apartment. A.C. lived with his mother, N.C., in a small town to the east of Toronto.
13Towards the end of 2008, the appellant met J.C. at the food bank. They became friends. Over the ensuing months, the appellant became closer to J.C. and her family. The following summer, J.C. was spending time with her two grandsons nearly every day. The appellant would see the boys two or three times a week. He took them on excursions. Swimming. Bowling. The movies. Sometimes with J.C., other times not. The appellant also babysat the boys at J.C.’s apartment and at R.K.’s home. Sometimes, other adults would be present, other times, the appellant would be alone with the boys. He usually brought candy or trinkets. From time to time, the appellant spent the night at J.C.’s apartment or R.K.’s home. He referred to R.K. as “my son”.
The Summer Months and Centre Island
14One day in the summer of 2009, J.C. mentioned to the appellant that she was taking R.K. to Centre Island. The appellant asked whether he could join them with his niece. On the day of the trip, the appellant appeared. His niece was not with him. The appellant said his niece had other commitments. He accompanied J.C. and R.K. to Centre Island. The appellant went on rides with R.K.
15J.C., the appellant and R.K. returned to Centre Island a week later. The appellant accompanied R.K. on several rides, including a number of trips on R.K.’s favourite ride, the “Haunted House”. On the “Haunted House” ride, a car travels through the dark. R.K. testified that during this ride the appellant touched R.K.’s penis and placed R.K.’s hand on the appellant’s penis.
16J.C. decided to get some ice cream at a concession. R.K. told his grandmother that he needed to go to the bathroom. J.C. told him to wait until she got the ice cream. When she came out of the ice cream stand, she did not see R.K. or the appellant. The ice cream began melting in the cones. She then noticed R.K. and the appellant coming from the washroom area. When J.C. asked her grandson where he had been, R.K. responded that he had to go to the bathroom “very bad” and could not wait.
17Several times over the summer, J.C. saw the appellant at her apartment and at S.C.’s house as she babysat either or both of her grandchildren. A.C. and his mother spent much of the summer at S.C.’s house. The appellant was often there. He slept at both J.C.’s apartment and S.C.’s house while J.C. babysat her grandsons.
18From time to time, J.C. left her grandsons alone with the appellant when she did various errands. The appellant brought small gifts for the boys and took them on outings to the movies and bowling without their grandmother.
19On the Labour Day weekend, the appellant joined the family at a rented cabin in a campground. He swam and played mini-golf with the boys. The appellant slept alone on a pull-out couch in the living room. One morning, A.C. was found with the appellant on the same couch.
The Fall Months
20The appellant saw the family less frequently once the boys returned to school. He saw them on Thanksgiving, on Hallowe’en and at R.K.’s birthday party in early November.
21Early in the fall, R.K. complained to his mother that his “bum” was hurting and that it hurt when he had to go to the bathroom. S.C. saw a rash around her son’s anus. When ointment was applied, the rash disappeared, only to reappear later. It disappeared completely after November.
22On one occasion, the appellant and R.K. were wrestling in the living room at R.K.’s house. J.C. told them to settle down. R.K. ran at the appellant, kicked him very hard between the legs and swore at the appellant. R.K. said, “you stupid asshole” and “you ugly asshole”. When pressed for an explanation, R.K. told his grandmother, “I’m mad”.
23Before R.K.’s birthday in early November, his mother, S.C., noticed a change in her son’s behaviour. He became distant and withdrawn. He was angry, fought and talked back. His grades declined. He wet the bed and had nightmares.
24The family had a birthday party for R.K. in November. The appellant brought a banner he had made for the occasion at the print shop where he worked. S.C. noticed the appellant hug R.K. She thought the hug was too close and told the appellant to stop.
The First Complaint
25When N.C. came to pick up her son the day after the birthday party for R.K., she noticed blood in A.C.’s stool. When they returned home, N.C. put A.C. in the bathtub. He screamed hysterically. “[M]y bum hurts, it’s itchy mummy, it’s scratchy mummy”. She asked what had happened. A.C. responded, “Paul Number Two put his pee pee in my bum”. After composing herself, she looked at her son’s anus and saw rips and tears and redness, and she applied some appointment. “Paul Number Two” was the name both boys used for the appellant.
The Second Complaint
26Later the same evening, N.C. called her sister, S.C. She explained what A.C. had said and suggested that S.C. speak to R.K. S.C. asked R.K. whether “Paul Number Two” had touched him in any way. She then told R.K. what A.C. had told his mother. R.K. said, “Mum he did it to me too”, put his head down and looked away from his mother. S.C. was shocked. She may have asked a few more questions but did not want to discuss it further with her son.
The Evidence of R.K.
27R.K. was a ten-year-old grade five student when he testified from outside the courtroom at trial. His video statement was admitted and marked as an exhibit. He described “Paul Number Two” as having orange hair, freckles and “crooked eyes”, which appeared as if they were “not looking at you”. (The appellant is somewhat cross-eyed.)
28R.K. recalled that on a trip to Centre Island, “Paul Number Two” put his hands in R.K.’s pants, then around his “pee pee” as they rode together on the “Haunted House”. This happened twice. “Paul Number Two” then took R.K.’s hand and put it in his pants beside his “pee pee” and on it.
29After the rides, R.K. went with “Paul Number Two” to the washroom. It was a “wheelchair washroom” beside the public washroom. No one else was inside. The door could be locked from the inside. “Paul Number Two” took R.K. to the sink, stood behind him, pulled R.K.’s pants down and “put his pee pee” in R.K.’s “bum”. While doing this, “Paul Number Two” said nothing. At some point, either in the washroom or on the “Haunted House” ride, “Paul Number Two” told R.K. that he would kill R.K.’s mother if R.K. told anyone what had happened. On two subsequent occasions when no one else was home, at J.C.’s apartment and R.K.’s home, “Paul Number Two” pulled R.K.’s pants down, got on top of him and “put his pee pee in my bum”.
30At trial, R.K., unprompted, testified that “Paul Number Two” pulled down his (R.K.’s) pants and put his tongue on his (R.K.’s) “pee pee”, then put his whole mouth on R.K.’s “pee pee”. This happened two or three times a day when they were alone at J.C.’s apartment or R.K.’s house.
31R.K. acknowledged that at trial he said things that he had not said before about what “Paul Number Two” had done to him. He explained that he did not feel so shy anymore after watching his video and having his evidence at the preliminary inquiry read to him. He also remembered incidents at the movies (“Paul Number Two” put his hands down R.K.’s pants) and in the washroom at a bowling alley (“Paul Number Two did it”).
The Evidence of A.C.
32A.C. gave evidence outside the courtroom after promising to tell the truth. When he testified, he was six years old and in grade one. His police interview was admitted under s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46.
33In his police interview, A.C. said that somebody “hurted” him by putting his “pee pee” in A.C.s “bum”. This happened “more than one time … like one hundred” in R.K.’s bedroom at his house. A.C. explained that every time he moved, “Paul Number Two” would start all over again.
The Appellant’s Explanation
34In a video-recorded interview after his arrest, the appellant acknowledged having met J.C. when she was a customer at the food bank where he worked as a volunteer. He met both J.C.’s daughters and her grandsons and went to various activities with the boys, sometimes with J.C., but others only with R.K. or both boys. On some nights, he was alone with R.K. He denied seeing the boys between Christmas 2008 and school break in the following summer. He was lonely and never had kids in his life. He came to care about the boys, especially R.K.
35The appellant testified at trial. He admitted a Youth Court record consisting of convictions for several counts of sexual offences. At the time of the offences charged, he worked part-time at a printing company and volunteered at the food bank where he met J.C. He acknowledged that he went to Centre Island once with J.C. and her two grandsons. As a self-described “ride fanatic”, he went on rides with both boys. He rode the “Haunted House” with R.K. several times. They sat together. The appellant denied putting his hands down R.K.’s pants on the ride, taking him to the washroom or threatening him. He was never at Centre Island with only J.C. and R.K. There was no ice cream shop on the island. The family’s policy about washroom visits was that either J.C. or S.C. would take R.K. to the women’s washroom.
36The appellant admitted that on many occasions he would be alone with the boys when J.C. was out doing errands. He also testified that he had taken R.K. bowling and to the movies in the evening. When required, the appellant would escort R.K. to the washroom, but did not enter the stall with him. During the summer of 2009, the appellant would sometimes stay at S.C.’s house on weekends. He would spend time alone with R.K. in his bedroom, and at other times, with both boys playing videogames. He agreed that on the camping trip at the end of the summer, A.C. got into bed with him because he was cold. About ten minutes later, N.C. appeared and told her son to get out of bed.
37The appellant came to regard R.K. as his “son”. R.K. referred to the appellant as his “dad”. The appellant tried to downplay this relationship, but a very strong bond developed between them. The appellant treated A.C. in a similar way, but their relationship was not the same as between the appellant and R.K.
38The appellant denied any sexual impropriety with either R.K. or A.C.
The Assault
39The appellant gave evidence that he last saw R.K. and A.C. at R.K.’s birthday party in early November 2009. He was expected to get R.K. a flat-screen television for his birthday, but he brought a smaller gift instead. The appellant was alone with A.C. in the living room when he stayed over that night. He denied any sexual contact with him.
40According to the appellant, S.C. invited him to her house about two weeks after the birthday party. She wanted him to babysit while she attended a concert. He agreed. When he arrived, S.C. and A.C.’s biological father were there. A.C.’s father punched the appellant in the face and said “we’re going to talk”. A struggle followed. S.C. stabbed the appellant in the shoulder with a knife. A.C.’s father said, “[Y]ou want to fuck [A.C.]”. S.C. said, “[Y]ou want to fuck the children”. The appellant lost his shirt in the ensuing struggle, along with his jacket and sweater. His lip was split. He escaped, took a taxi to the subway and went to his employer’s home in Scarborough.
41S.C. denied having seen the appellant after R.K.’s birthday party and having invited him to her home to babysit.
The Medical Evidence
42Physical examinations were conducted on both A.C. and R.K. Anal fissures and redness surrounding the anal area were visible on A.C. with some redness in R.K.’s anal area. These are non-specific findings and neither confirm nor refute the possibility of sexual abuse.
The Appeal from Conviction
43I turn first to the appeal from conviction.
The Grounds of Appeal
44The appellant urges three grounds of appeal on his challenge to the convictions entered at trial. He says that:
i. the trial judge erred in failing to resolve a conflict in the evidence;
ii. the trial judge erred in his use of circumstantial evidence; and
iii. a miscarriage of justice occurred because trial counsel provided ineffective assistance to the appellant in responding to the charges.
I will consider these grounds as follows.
Ground #1: Failure to Resolve a Conflict in the Evidence
45A brief reference to the evidence on which this complaint is grounded will provide the background necessary to evaluate its merits.
The Essential Background
46In general terms, the error alleged has to do with evidence about an incident in November 2009 involving the appellant, S.C. and A.C.’s biological father. The only witness who gave direct evidence about this incident was the appellant. S.C. denied any contact with the appellant after R.K.’s birthday party in November 2009. A.C.’s biological father did not testify at trial.
47According to the appellant, R.K.’s mother, S.C., called him (the appellant) the weekend following R.K.’s birthday and asked whether he could babysit. S.C. wanted to go to a concert. The appellant agreed. When he arrived thinking he was going to babysit, S.C. and A.C.’s biological father were there. They attacked him. A.C.’s biological father punched the appellant in the face. S.C. stabbed him in the shoulder. Each accused the appellant of sexual impropriety with the children.
48S.C. denied seeing the appellant after R.K.’s birthday party. She did not call the appellant after the birthday party or invite him to her home to babysit.
49Both the appellant’s mother and his employer confirmed injuries to the appellant’s body and his distraught state.
The Reasons of the Trial Judge
50In his written reasons, the trial judge said the principal relevance of the appellant’s employer’s evidence was to explain his post-offence conduct and to cast light on the conduct of the family members after the birthday party and before they went to the police about a week later.
51The trial judge concluded that the appellant’s post-offence conduct did not assist him in assessing the appellant’s credibility as a witness at trial. The judge considered this evidence and evidence about the appellant’s Youth Court record as an explanation for the appellant’s failure to go to the hospital, the police or his home in Parkdale near J.C. The judge concluded:
It is not necessary to make definitive findings as to who was involved in the confrontation and exactly what happened. I am satisfied that a confrontation of some kind happened. The defence witnesses have reliably testified that Gibson had a bloody lip, he had lost his jacket, he was distraught, and he immediately told his mother and his employer about a confrontation with [C.]’s family members. This all occurred on November 21, 2009. In the circumstances, it was understandable that Gibson would feel trapped and would turn to his employer and to his family, and not to the police. Indeed, P.C. Vieira’s forceful reliance on Gibson’s prior Youth Record during the police interview on November 29, 2009, tends to confirm Gibson’s view that the police would use his prior convictions against him. I edited out this part of the interview, with the Crown’s consent, on the basis that it was irrelevant and prejudicial.
The Arguments on Appeal
52The appellant contends that there was no serious dispute that S.C. was involved in the assault on him following R.K.’s birthday. It necessarily follows that her evidence denying any involvement was a lie. This demonstrated her willingness to commit perjury to put herself in a better light. That she was willing to do so and actually did so was a relevant factor for the trial judge to consider in assessing her credibility and the reliability of her evidence.
53The trial judge erred, the appellant says, in failing to consider S.C.’s perjury on this issue as a relevant factor in assessing her credibility and the reliability of her evidence. Instead, he accepted that the confrontation occurred, but made no finding about S.C.’s participation or the effect of false testimony about it on her credibility. It was incumbent on him to do so, rather than simply accept S.C.’s evidence at face value.
54The respondent points out that a trial judge is not legally obliged to resolve every conflict in the evidence that arises at trial. The appellant’s allegation is a claim that the trial judge misapprehended the evidence adduced at trial. He failed to consider an item of relevant evidence — S.C.’s perjury — on the issue of her credibility. But the appellant must do more than simply point to a misapprehension of evidence. He must also establish a link or nexus between the misapprehension and an adverse result at trial. This is a stringent standard, one that the appellant has failed to meet.
The Governing Principles
55The principles that control our decision on this issue are well known. They are in no need of elaboration. A handful of brief points will suffice.
56First, findings on credibility are notoriously difficult to dislodge on appeal. They are subject to deference and resistant to appellate interference in the absence of palpable and overriding error: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 28, 32; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at paras. 10, 20; and R. v. Plehanov, 2019 BCCA 462, 383 C.C.C. (3d) 473, at para. 52, leave to appeal refused, [2020] S.C.C.A. No. 489.
57Second, a trial judge is under no obligation to resolve every conflict in the evidence adduced at trial: R.E.M., at para. 20; R. v. Slatter, 2018 ONCA 962, 369 C.C.C. (3d) 112, at para. 102; and R. v. Stark (2004), 2004 CanLII 39012 (ON CA), 190 C.C.C. (3d) 496 (Ont. C.A.), at para. 12.
58Third, a misapprehension of evidence includes, but is not limited to, a failure to consider relevant evidence and a failure to give proper effect to evidence adduced at trial: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218.
59Fourth, to determine whether an allegation of misapprehension of evidence has rendered a trial unfair and caused a miscarriage of justice, a reviewing court must examine the nature and extent of the misapprehension and its significance to the verdict rendered in light of the requirement in our law that a verdict must be based exclusively on the evidence adduced at trial. The misapprehension must be at once material and occupy an essential place in the judge’s reasoning process leading to a finding of guilt: Morrissey, at p. 221; R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250, at para. 72.
60Fifth, the standard set for a misapprehension of evidence to warrant appellate reversal is stringent. An error in the assessment of the evidence will amount to a miscarriage of justice only where striking it from the judgment would leave the trial judge’s reasoning on which the conviction was based on unsteady ground: Doodnaught, at para. 73, citing R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.
The Principles Applied
61I would not give effect to this ground of appeal.
62For discussion purposes, I accept that a trier of fact is entitled to consider in their assessment of a witness’ evidence that the witness has given false evidence on a particular issue or subject. Indeed, lay triers of fact are so instructed when advised about how they are to assess the evidence given during a trial.
63The principal issues at the appellant’s trial were twofold. Did the offences alleged actually take place? And did the appellant commit them? The evidence which forms the subject of this ground of appeal was central to neither of those issues. Rather, it resided on the periphery of the controverted issues.
64Relatedly, this is not a case in which the misapprehension relates to the substance of the evidence and that misapprehension is relied on to establish the appellant’s guilt. The fault here is said to be in failing to consider an item of evidence — an alleged lie about a witness’ extrinsic misconduct — in assessing that witness’ credibility and the reliability of her evidence. The trial judge was keenly aware of the problems associated with S.C.’s testimony. He commented during closing submissions that S.C. was “not the most reliable witness in the world”.
65Further, the law imposes no obligation on a trial judge to demonstrate that they have appreciated every aspect of every piece of relevant evidence. Nor are they required to resolve every conflict in the evidence, especially those that are not material and do not occupy a central place in the reasoning process leading to the verdict.
66This ground of appeal fails.
Ground #2: Improper Use of Circumstantial Evidence
67The second ground of appeal takes aim at the trial judge’s use of circumstantial evidence to confirm the direct evidence of the complainants. The alleged error does not require any additional reference to the evidence, only a brief illustration from the reasons of the trial judge.
The Reasons of the Trial Judge
68The appellant focuses on a single paragraph of the trial judge’s lengthy reasons. However, to be fair and faithful to the obligation to read the reasons as a whole, the two paragraphs immediately following the impugned passage should be included:
I appreciate that all of the above items of circumstantial evidence, if analyzed separately, are open to some innocent explanation. The unusual evidence of association and opportunity, for example, is said to be explained by the fact that Gibson was very lonely after the death of his father, according to the defence evidence. The anal rash may have been due to constipation or some other innocent source of irritation, as the SCAN unit report warns. The evidence of [R.K.]'s anger towards Gibson, and his change of behavior in the fall, may have been caused by Gibson's failure to get [R.K.] a flat screen television, or some other unknown but innocent cause, according to the defence evidence.
The proper way to analyze these potential explanations for each piece of circumstantial evidence is not piecemeal, in isolation from the other evidence. Rather, they are to be assessed together and in the context of all the evidence. Furthermore, the individual items of evidence are not to be subjected to the standard of proof beyond reasonable doubt, which applies to the essential elements of the offences and to the verdicts. As Taschereau J. put it, speaking for six members of the Court in R. v. Coté (1941), 1938 CanLII 44 (SCC), 71 C.C.C. 75 at 76 (S.C.C.):
It may be, and such is very often the case, that the facts proven by the Crown, examined separately have not a very strong probative value; but all the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that may constitute a proper basis for a conviction.
When the entire body of circumstantial evidence is considered together, and is considered together with [R.K.]’s own internally compelling testimony, I am satisfied that the innocent explanations for individual items of evidence should be rejected. See: R. v. Morin, supra at 205-211; R. v. Bouvier (1984), 1984 CanLII 3453 (ON CA), 11 C.C.C. (3d) 257 at 264-6 (Ont. C.A.), aff’d. 1985 CanLII 17 (SCC), 22 C.C.C. (3d) 576 n (S.C.C.); R. v. J.M.H., 2011 SCC 45, 2011 S.C.C. 45; R. v. Morin (1992), 1992 CanLII 40 (SCC), 76 C.C.C. (3d) 193 at 200 (S.C.C.); R. v. Lynch, Malone and King (1978), 1978 CanLII 2347 (ON CA), 40 C.C.C. (2d) 7 at 19 (Ont. C.A.).
In conclusion concerning [R.K.]’s account, I found his testimony internally credible and reliable. In addition, there is a substantial amount of external circumstantial support for his account. In short, I believed his testimony, even after approaching it with caution and after looking for support from other credible and reliable evidence.
The Arguments on Appeal
69Despite the absence of any common law or statutory rule requiring corroboration of the unsworn evidence of child witnesses, the trial judge concluded that he had to approach the evidence of R.K. and A.C. with caution. Each gave direct evidence which, if accepted, proved the offences charged. The trial judge considered that, absent some supporting evidence, it would not be safe to ground a conviction on the evidence of A.C. on its own.
70The trial judge recognized, the appellant notes, that the only evidence potentially confirmatory of the testimony of the complainants was circumstantial in nature. However, according to the appellant, the trial judge lost sight of the fundamental principle that circumstantial evidence may only be used to convict a person where guilt is the only rational inference that arises from that evidence. More narrowly, the trial judge relied on the equivocal SCAN evidence about the significance of anal fissures in children as confirmatory of the complainant’s testimony. This evidence lacked any inculpatory force. It was non-specific in the sense that anal fissures were common in non-abused children, not unique to those who had been abused in the manner alleged here. It follows, the appellant contends, that the trial judge erred in relying on this evidence as confirmatory of the complainant’s allegations. This error requires a new trial.
71The respondent rejects any suggestion of error.
72According to the respondent, it was open to the trial judge to conclude, in the circumstances of this case, that the evidence of the complainants should be approached with caution. The trial judge also correctly recognized that the potentially confirmatory evidence was circumstantial in nature.
73Where an offence, or an essential element of an offence, falls to be proven wholly or substantially by circumstantial evidence, the respondent continues, each item of circumstantial evidence need not bear the entire burden or meet the required standard of proof. It is the whole of the evidence, often greater than the sum of its individual parts, that must discharge the burden and meet the standard of proof.
74The respondent says that, in isolation, individual items of circumstantial evidence are often equivocal. They give rise to more than one inference, not all of them inculpatory. But that does not make them irrelevant for consideration on a particular issue. It is the cumulative force of the evidence that is important and controlling. Here, the SCAN evidence confirmed rips and tears around A.C.’s anus. The SCAN report confirmed fissures. It confirmed redness around R.K.’s anus at the time S.C. and J.C. noticed an unusual rash there. The trial judge recognized the limitations on the SCAN evidence. He was entitled to find, on the evidence as a whole, that the complainant’s accounts of anal penetration by the appellant were confirmed.
The Governing Principles
75Some principles about the nature of circumstantial evidence and its use as proof of facts in a criminal case help resolve this claim of error.
76First, circumstantial evidence is all about inferences. Individual items of circumstantial evidence give rise to a range of inferences. The available inferences must be reasonable according to the measuring stick of human experience. That there may be a range of inferences available from an individual item of circumstantial evidence does not render the item of evidence irrelevant or neutralize its probative value: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112, per Martin J. (dissenting, but not on this point), citing R. v. Smith, 2016 ONCA 26, 333 C.C.C. (3d) 534, at para. 77.
77A second point concerns the standard of proof required where proof of the offence or one or more of its essential elements depends wholly or substantially on circumstantial evidence. In such a case, an inference of guilt drawn from circumstantial evidence must be the only reasonable inference available on that evidence: R. v. Villaroman, 2016 SCC 33, at paras. 30, 32-34.
78Third, the standard of proof applies to the evidence taken as a whole, not to each individual item of circumstantial evidence: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 359, 362. See also R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, at p. 295-96.
79Finally, where proof of an essential element or the offence charged depends wholly or substantially on circumstantial evidence, it is the cumulative effect of all the evidence, taken together, each item in relation to another and the whole, that must be considered in determining whether the standard of proof has been met: Cote v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.
The Principles Applied
80I would not accede to this ground of appeal.
81First, this is not a case in which guilt or an essential element of any offence charged fell to be established entirely or substantially based on circumstantial evidence. Each complainant gave direct evidence which, if believed, established the essential elements of each offence charged beyond a reasonable doubt.
82Second, the issue to which the circumstantial evidence in controversy was directed was not guilt or an essential element of any offence with which the appellant was charged. The evidence in issue was among several items of evidence offered to confirm the testimony of the complainants, whose evidence the trial judge concluded required a cautious approach. It did not have to implicate the appellant in any offence charged. Its role was to ensure the trier of fact’s faith in the reliability of the complainant’s account. It was not an essential element of the offence, carried no burden and was not subject to any standard of proof.
83Third, the argument advanced is at odds with the nature of circumstantial evidence and its use as a means of proof. Circumstantial evidence is all about inferences. Each item of circumstantial evidence gives rise to a range of inferences. That it does so is the very essence of circumstantial evidence. This does not mean it ceases to be relevant or loses its probative value. Each item of circumstantial evidence is but a link in the chain of proof. It is not itself required to bear the whole burden or satisfy the legal standard of proof.
84Finally, a review of the reasons of the trial judge clarifies that it was the report of the redness or injury to the anus that was confirmed by the SCAN report. The rips and tears around A.C.’s anus were confirmed by the presence of fissures, R.K.’s rash by observations of redness. The trial judge acknowledged the limitations on this evidence and did not make improper use of it.
Ground #3: Ineffective Assistance at Trial
85This is the principal ground of appeal against the convictions of the predicate offences. It alleges errors and omissions by trial counsel in pre-trial preparation and in the conduct of the trial.
86Our evaluation of this ground of appeal is based on the trial record supplemented by the affidavits of the appellant, his mother and trial counsel; and transcripts of the cross-examinations conducted on those affidavits. To better understand the nature of the appellant’s complaints, some additional background is necessary.
The Essential Background
87Trial counsel was called to the Bar in Ontario in 1994, about 18 years before the appellant’s trial began. She practised in East Asia for five years and returned to Ontario in 1999.
88Trial counsel was a sole practitioner. She practised out of her home. She had no staff to assist her. Her practice included family, criminal, mental health and child protection cases. When she represented the appellant, she had conducted fewer than five criminal trials, two of which were in the Superior Court of Justice.
89After the appellant had been convicted, trial counsel was unsure whether she should continue as counsel during the sentencing proceedings. She had never represented anyone in dangerous offender proceedings. And she was not qualified under Legal Aid Ontario (“LAO”) rules to act as defence counsel in dangerous offender proceedings.
90The appellant wanted trial counsel to continue to advocate on his behalf in the sentencing proceedings. His purpose, he insisted, was to get her back before the court where she could own up to the mistakes she had made in her conduct of his trial. Trial counsel was not the first lawyer about whom the appellant had claimed incompetence. A previous lawyer had “royally messed up” his defence. And another lawyer was “stupid, stupid, stupid”.
91The appellant signed a direction that he wished trial counsel to continue as his lawyer in the dangerous offender proceedings. LAO agreed that she could do so, provided that she had senior criminal counsel to whom she could turn for advice. Trial counsel consulted senior criminal counsel once for the purposes of the dangerous offender proceedings.
92The appellant advances several discrete grounds which he says cumulatively establish the pervasive incompetence of trial counsel. The several subheadings which follow endeavour to capture the essence of the various complaints.
The Defence Theory
93Trial counsel’s theory of the case was that A.C. may have been sexually assaulted, but that the perpetrator was an unknown third party, not the appellant. In respect of R.K., the theory was that R.K. had not been abused but rather had lied that he had been because of suggestions or pressure from family members. Trial counsel did not think that a child’s mother could imagine the events alleged and instill such an idea in her children.
94Trial counsel cross-examined A.C.’s mother, N.C., about other men who had contact with A.C. during the period alleged in the indictment, as well as about A.C.’s use of the descriptive “Paul Number Two”. She confronted N.C. with her preliminary inquiry testimony that A.C. had said “someone” had put their “pee pee” in his “bum”.
95Trial counsel also cross-examined R.K.’s mother, S.C., about other men who were in her home where the alleged abuse occurred at the time of the allegations, as well as their appearance. This included S.C.’s then boyfriend, who shared the same first name as the appellant. Trial counsel also confronted the officer-in-charge of the investigation that police had not interviewed any other males who were present in R.K.’s home at the time the offences were alleged to have been committed there.
96In closing argument, trial counsel made detailed submissions on the identity of the alleged assailant.
The Cross-Examination of Crown Witnesses
97The appellant alleges that trial counsel failed to adequately cross-examine the principal Crown witnesses at trial.
R.K.
98R.K. initially denied having been sexually abused by the appellant when he was first asked about it by his mother. He provided no details about any abuse when interviewed by police, but he elaborated expansively at trial. There, trial counsel focused on the fact, nature and extent of these elaborations and suggested they were fabricated. Trial counsel also cross-examined R.K. about being questioned by his mother, S.C., after she told him about A.C.’s disclosure. R.K. did not remember his mother’s questioning but did admit that he gave evidence about “new things” at trial. He denied that the new things were influenced by anything his mother, aunt or grandmother had said.
99Trial counsel acknowledged that she did not cross-examine R.K. about his trip to Centre Island with his grandmother and the appellant, although, the appellant says, this trip was central to the allegations against the appellant. Counsel did not visit the scene and did not apply to re-open the case when apprised of an email exchange between the appellant’s mother and Centre Island ticket sales about the washroom and other facilities on Centre Island. (More on this below, at paragraphs 123-26.) Nor did she ask R.K. about kicking the appellant in the groin or being hugged by him at the birthday party.
100The appellant also complains that trial counsel elicited prejudicial evidence about instances of sexual assault when the appellant took R.K. to the movies and bowling. Evidence had already been adduced in the appellant’s police interview and from J.C. and S.C. that the appellant had taken R.K. to the movies and bowling. Trial counsel used this first-time disclosure at trial of abuse on these outings to demonstrate R.K.’s malleability and testimonial unreliability.
A.C.
101The appellant complains that trial counsel did not ask any questions of A.C., such as what his mother or aunt had said to him about the incidents or how often he had talked to his mother about them.
102A.C. was six years old when he testified after promising to tell the truth. His evidence consisted of his s. 715.1 statement, which he eventually adopted after having initially failed to recall having made it. His examination-in-chief is contained in about two pages of transcript.
103Trial counsel did not cross-examine A.C., and thus did not ask him about anything his mother or aunt had said to him about the appellant or any of the allegations.
J.C.
104Trial counsel cross-examined J.C. about her conversations with the complainants and her observations of the rash on R.K.’s buttocks and when she had seen it. Counsel also cross-examined J.C. about what she told police when interviewed and apparent inconsistencies between her evidence at trial and her testimony at the preliminary inquiry.
105The appellant’s principal complaint in connection with trial counsel’s cross-examination of J.C. is that she asked questions about a drawing done by R.K. about which J.C. had been asked in her examination-in-chief by the Crown. This complaint was not included in the appellant’s affidavit. The questioning occurred as trial counsel queried J.C. on her conversations with R.K. about his allegations.
106The trial judge characterized J.C.’s testimony about the drawing as “confusing”. It was not listed as a factor in the rejection of the appellant’s evidence.
S.C.
107The appellant’s principal complaints about trial counsel’s cross-examination of S.C. are that she did not question S.C. about her involvement in the assault on the appellant and on the likely collusion between S.C. and her sister, N.C., after A.C.’s initial disclosure of abuse by the appellant. Both of these issues, the appellant says, affected S.C.’s credibility and the reliability of her evidence.
108In cross-examination, trial counsel elicited evidence that S.C.’s testimony about R.K.’s rash emerged for the first time at trial, and that her testimony about the appellant’s conduct in hugging R.K. at the birthday party emerged only at the preliminary inquiry and not her initial police interview. She also challenged S.C.’s memory of her contact with the appellant after A.C.’s initial disclosure. During a colloquy in closing submissions, the trial judge observed that “[S.C.]’s not the most reliable witness in the world”.
109In her evidence, S.C. denied any contact with the appellant after the birthday party when trial counsel asked her about it in cross-examination.
N.C.
110The appellant’s complaint about trial counsel’s cross-examination of N.C. is that she did not properly explore the extent to which N.C. had spoken with her sister, S.C., about the allegations. The appellant also says counsel failed to use N.C.’s admission that her memory was affected by post-traumatic stress disorder, especially in relation to the issues relevant at trial, to challenge her evidence.
111Trial counsel challenged N.C.’s recollection of various events, including the relationship between A.C.’s disclosure and R.K.’s birthday party.
The Evidence of the Appellant’s Mother
112Patricia Lahey is the appellant’s mother. She testified as a defence witness at trial. The appellant’s complaints about trial counsel’s handling of her evidence are essentially twofold. Trial counsel did not adequately prepare Ms. Lahey to give evidence at trial. And counsel compounded this error by eliciting damaging evidence about the nature of the appellant’s relationship with the complainants and inadmissible hearsay and lay opinion evidence.
113Trial counsel explained that Ms. Lahey had been in the courtroom throughout the trial. They had spoken regularly. Trial counsel discussed the decision to call her as a witness with the appellant and he agreed that she should give evidence. Trial counsel reviewed the general nature of the questions that she would ask Ms. Lahey, but not the specific questions. Ms. Lahey’s testimony corroborated the appellant’s evidence about the assault after the birthday party, his denials of the allegations and his mental state after his father’s death which related to his motive for befriending the complainants’ families.
114Ms. Lahey testified that she was concerned about the closeness of the relationship between the appellant and the boys and how it would be viewed given his previous convictions for sexual offences. The trial judge made it clear that neither the appellant’s criminal record nor the inadmissible evidence assisted in resolving the case. The more damaging evidence in connection with the appellant’s credibility was that he lied not only to his mother, but also to his employer (who also testified as a defence witness) about never being alone with the complainants. This evidence was elicited during cross-examination.
Preparation of the Appellant for Trial
115The appellant complains that trial counsel did not adequately prepare him for trial. She did not meet with him on a sufficient number of occasions and for a sufficient amount of time, review the disclosure with him or prepare him to testify.
116The appellant and trial counsel differed significantly on the number of occasions and the circumstances in which they met. The appellant said they met six to ten times, almost always at the courthouse. The meetings were very brief. He acknowledged a “vague recollection” of the number of the meetings.
117For her part, trial counsel docketed 25 meetings with the appellant, with over half of them taking place at the jail. Nine were before or during trial. There may have been more. The meetings were invariably of at least an hour, although counsel acknowledged that the hours she docketed included a portion of her travel time and the period required to clear security at the jail.
118The appellant gave evidence that trial counsel was reluctant to bring the video statements for him to review, although she did so once. Trial counsel’s recollection was that she did not review the videos with the appellant. Some of them, which included the police interviews with the adults, were not transcribed. In the four months she had to prepare for trial, counsel reviewed the disclosure and the evidence adduced at the preliminary inquiry with the appellant, who appeared aware of the case he had to meet. The appellant also had a different lawyer previously.
119The appellant and trial counsel also differed in their recollections about preparing the appellant to testify at trial.
120The appellant claimed that he told trial counsel of his decision to testify at the end of the day before he began to give his evidence. Trial counsel did not prepare him in any way, nor ask for an adjournment so that she could do so.
121The trial record shows that the case for the Crown was at or near completion on a Friday. Before adjourning proceedings for the weekend, the trial judge confirmed with defence counsel that she would be ready to begin the defence on the following Monday. Her dockets confirmed that she had two meetings, totalling six hours, with the appellant during the intervening weekend.
122Trial counsel said she advised the appellant that he could but did not have to testify. She told him to tell the truth and not be argumentative. In his affidavit, the appellant denied any discussions with trial counsel on giving evidence in his own defence. When cross-examined, he admitted that he and trial counsel decided together that he would be testifying.
The Centre Island Emails
123R.K. described a washroom on Centre Island as a place in which the appellant sexually assaulted him. The events occurred at the sink in a wheelchair access washroom beside the main washroom. The washroom door could be locked from the inside. J.C. confirmed that the appellant took R.K. to the washroom on Centre Island.
124The appellant testified that it was “virtually impossible” for him to have taken R.K. to the washroom because there was a strict policy that R.K.’s mother, aunt or grandmother would always take him to the women’s washroom. The appellant also denied that this could have occurred while J.C. was waiting in line to buy ice cream because there was no ice cream sold on the island.
125About six months after the appellant had been convicted, but before completion of the dangerous offender proceedings, Ms. Lahey had an email exchange with someone at Centre Island ticket sales. She sought information about wheelchair washrooms and the sale of frozen treats on the island. The exchange confirms that there is a wheelchair accessible washroom with a sink on the island and that frozen treats are sold on the island. The information sought about washroom doors related to the main door of public washrooms open to everyone, not wheelchair accessible facilities. The public washroom doors can only be locked by staff.
126Trial counsel did not consider applying to re-open the proceedings after conviction based on this evidence. She was unsure about the significance of the email and in any case considered that the issue could be raised on appeal.
The Third-Party Records Application
127About a month before the scheduled trial date, trial counsel sought and obtained an adjournment so that she could bring a third-party records application. She sought Children’s Aid Society (“CAS”) records relating to both complainants and to N.C. On the return date of the motion, trial counsel had filed no materials, had served the Crown only that day and had failed to issue a subpoena to the recordholder.
128About a week later, trial counsel indicated that she wished to amend her original application to limit it to the records of only one of the complainants. In another two weeks, she sought an expanded group of records. The materials still had not been properly filed. A subpoena was never issued. The application failed.
129Trial counsel confirmed that this was her first third-party records application. She did not seek advice from more experienced counsel.
The Arguments on Appeal
130The appellant acknowledges that the onus is on him to establish, on a balance of probabilities, the facts on which his claim of ineffective assistance is grounded; that trial counsel’s representation was incompetent; and that the incompetent representation resulted in a miscarriage of justice because it rendered the trial proceedings unfair or resulted in an unreliable verdict. In this case, the appellant says, trial counsel’s incompetent representation not only rendered trial proceedings unfair, but also resulted in an unreliable verdict.
131In combination, several trial incidents and some related out-of-court deficiencies provide the factual backdrop for the claim of incompetent representation. A flawed defence theory which assumed the truth of A.C.’s account and mounted a minimal challenge to the evidence of R.K., and a failure to assiduously pursue any suggestion of third-party participation. This precluded presentation of “the most obvious” defence available on the evidence. That defence was that N.C. had misinterpreted and overreacted to A.C.’s complaint, jumped to an unwarranted conclusion and, with her sister, mutually reinforced the idea of sexual abuse until they and their children became convinced that it was true.
132In addition, the appellant says, trial counsel not only failed to challenge the credibility and reliability of the Crown’s witnesses, but also elicited testimony from them that was damaging to the defence case. She asked R.K. no questions about Centre Island, allegedly kicking the appellant in the groin or the alleged birthday hug. Then, she elicited evidence about assaults on the outings to the movies and bowling. A.C. was not cross-examined, and thus no evidence was adduced about any conversations his mother and aunt had with him. Counsel introduced damaging testimony from J.C. about R.K.’s drawing and made no real inquiry into the credibility or reliability of either N.C. or S.C., including, but not limited to, questions about their discussions about the allegations with each other and the children.
133Further, the appellant continues, trial counsel failed to properly prepare Ms. Lahey and himself for trial. She also elicited inadmissible evidence from Ms. Lahey about her opinion that the appellant was innocent and evidence that threatened to put the appellant’s character in issue. Counsel did not adequately review the disclosure with the appellant, met with him an insufficient number of times, gave him inadequate advice about testifying, failed to properly prepare him to testify and began to adduce evidence about the details of his criminal record until stopped from doing so by the trial judge.
134This accumulation of omissions, together with the failure to bring a third-party records application and to seek re-opening of the proceedings when made aware of the email about the facilities at Centre Island, compromised the fairness of the appellant’s trial and the reliability of the verdict rendered at its conclusion.
135As did the appellant, the respondent begins with the test we are to apply in our adjudication of the claim. The test is stringent. We are to proceed from a strong presumption that counsel’s conduct falls within, not beyond, a wide range of reasonable professional judgment. The standard is reasonableness, not perfection. Hindsight has no place in the evaluation, which is a function of the circumstances of the case. Nor are we to test counsel’s performance by the fact or through the lens of the judge’s reasons for judgment.
136The respondent says that our analysis must begin with a consideration of the issue of prejudice. This component requires the appellant to show that had trial counsel conducted the case as it is now said she should have done, there is a reasonable probability that the verdict rendered would have been different. Or, the appellant must show that counsel’s incompetence deprived him of a fair trial.
137In the respondent’s submission, the appellant has mischaracterized trial counsel’s approach to the case at trial. She did not assume that the allegations had to be true. The position advanced at trial was that A.C. may have been sexually assaulted, but not by the appellant. R.K. had not been abused but made allegations of abuse because of suggestions or pressure from family members. Unlike what is now said to be “the most obvious” defence, the position taken at trial was viable, had evidentiary support and accorded with common sense. By contrast, the appellant’s submission that N.C. had misinterpreted A.C.’s disclosure, and then, with her sister, convinced their children that they had been abused by the appellant is at once unhinged from the evidence at trial and at odds with common sense. That defence would not have been viable.
138Trial counsel developed her theory of the case at trial. She cross-examined N.C. about other men, A.C.’s use of the descriptive “Paul Number Two” and apparent inconsistencies between N.C.’s testimony at the preliminary inquiry and at trial about A.C.’s initial disclosure to her. She cross-examined R.K.’s mother, S.C., about other men in her home where the allegations occurred and their appearance, including her then boyfriend who was also named Paul. And she elicited evidence from the investigating officer, who acknowledged that police had not interviewed any other males who were present at the complainant’s home during the period of the allegations.
139The respondent counsels a cautious approach in any review of cross-examination strategies. The appellant must establish a reasonable probability, not a meagre possibility, that a different cross-examination strategy would have resulted in a different verdict. The mere fact that different counsel would have chosen a different cross-examination strategy, especially with the benefit of hindsight and the trial judge’s reasons, does not mean that what happened at trial was inadequate.
140In her cross-examination of R.K., the respondent says, trial counsel focused on the principal weakness and main inconsistency in his evidence. At first, R.K. denied being abused by the appellant. He provided no details of any abuse when interviewed by police. Yet at trial, his account was rich in detail. R.K. admitted as much but denied counsel’s suggestion that his account had been influenced by his mother, his aunt or his grandmother.
141The appellant’s complaint that in cross-examining R.K., trial counsel elicited prejudicial evidence about R.K.’s trips to the movies and bowling with the appellant is unavailing. This was not new evidence. The appellant acknowledged these outings in his police interview. Both J.C. and S.C. testified to the same effect. The cross-examination was in service of a reasonable trial strategy — demonstrating the malleability of R.K.’s account by adding, for the first time at trial, that sexual abuse had taken place at both these venues. That the strategy did not ultimately succeed does not render counsel’s questioning incompetent.
142The respondent disputes the appellant’s contention that trial counsel ought to have cross-examined A.C. about what his mother or aunt said about the incidents or how often he talked to his mother about them. A.C. was six years old when he testified at trial. For all practical purposes, his evidence was his video interview admitted under s. 715.1 of the Criminal Code, a video which he made when he was four years old. Initially, A.C. did not even recall making the video. His examination-in-chief occupied two pages of transcript. The record reveals no basis to suggest that cross-examination of A.C. would have elicited evidence favourable to the appellant.
The Governing Principles
143The test for establishing ineffective assistance of trial counsel is not in dispute. The appellant must establish the factual foundation for the claim, incompetence of counsel and miscarriage of justice resulting from such incompetence. With respect to the incompetence of counsel element, there is a strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to rebut this presumption. The analysis is conducted without the benefit of hindsight. See R. v. Ramos, 2020 MBCA 111, at paras. 119-20, aff’d 2021 SCC 15.
The Principles Applied
144I would not give effect to this ground of appeal.
The Family Members
145The appellant says that trial counsel prejudiced his case by asking questions about a drawing J.C. had testified in-chief that R.K. drew.
146This complaint, about which there is no mention in the appellant’s affidavit filed in support of his ineffective assistance of counsel allegation, is unavailing. The questioning occurred when trial counsel was exploring with J.C. her conversations with R.K. about his allegations of sexual abuse. The trial judge characterized the exchange as “confusing” and attached no significance to it in assessing R.K.’s evidence or in weighing the appellant’s testimony.
147In respect of S.C., the appellant contends that trial counsel failed to challenge the witness’ credibility and reliability, devoted much of her cross-examination to the absence of a doctor’s name on a medical report, failed to question her about her involvement in an assault on the appellant after R.K.’s birthday, and omitted to probe S.C. about possible collusion with her sister.
148A review of trial counsel’s cross-examination of S.C. does not support this aspect of the claim of ineffective assistance.
149Trial counsel pointed out that S.C.’s evidence about the appellant hugging R.K. at the birthday party first emerged in her testimony at trial. She also established the unreliability of S.C.’s memory about her contact with the appellant after A.C.’s disclosure. Her lengthy cross-examination of S.C. contained only one page about the absence of the doctor’s name from the medical report. She asked questions about collusion among family members and S.C.’s contact with the appellant after R.K.’s birthday party. That the witness remained steadfast in her denials affords no evidence of incompetence.
150Nor does the record support the assertion of incompetence in the cross-examination of N.C. N.C. had made it clear that after A.C.’s disclosure, she did not want to discuss the allegations with anyone or even hear about them. Trial counsel challenged and succeeded in showing that N.C.’s memory of the time at which various events occurred was unclear.
151Whether considered singly or in combination, I am not persuaded that the impugned cross-examinations compromised trial fairness or the reliability of the verdict the trial judge rendered.
The Evidence of the Appellant’s Mother
152The appellant says that trial counsel did not adequately assess the risk of calling the appellant’s mother, Ms. Lahey, as a defence witness and, having decided to call her, failed to adequately prepare her to testify.
153The decision to call Ms. Lahey as a witness was made after discussion with the appellant and with his agreement. Ms. Lahey confirmed the appellant’s account about the injuries he suffered in the post-birthday altercation with S.C. and A.C.’s biological father. Similar evidence was given by the appellant’s employer, whose testimony is not said to bear the badge of incompetence. Ms. Lahey confirmed the appellant’s repeated denials of impropriety and provided a benign motive for him befriending the complainants’ families.
154As with almost any witness, there were risks associated with the testimony of Ms. Lahey. Her warning of the appellant about the dangers of a close relationship with the complainants given his prior record of sexual offences against children. But the experienced trial judge was keenly aware of the irrelevance of Ms. Lahey’s views and made no use of them, or the appellant’s prior record, in finding the case for the Crown proven beyond a reasonable doubt.
155The more damaging blow to the appellant’s credibility came from evidence that he had lied not only to his mother, but also to his employer about never having been alone with the complainants. However, this was but one of myriad factors the trial judge cited for rejecting the appellant’s evidence. That a witness may give some evidence adverse to the interest of the calling party is a risk with many, if not most, witnesses. The decision to call such a witness is a judgment call rather than evidence, much less proof, of incompetence.
Preparation of the Appellant for Trial
156The crux of the appellant’s complaint about his dealings with trial counsel has to do with preparation for trial. Insufficient meetings with counsel. Inadequate review of disclosure. Tepid advice about the decision to testify and meagre preparation in advance of his testimony. He also assails counsel’s elicitation from the appellant of the details of his prior criminal convictions.
157The evidence conflicts about the number of meetings between trial counsel and the appellant. To the extent that the evidence conflicts, I accept the evidence of trial counsel. The appellant has a “vague recollection” of six to ten meetings, each very brief, and most of which occurred at the courthouse. By contrast, trial counsel docketed 25 meetings, over half of them at the jail where the appellant was detained pending trial. Nine of the meetings, perhaps more, were before or during the trial. The jail meetings were an hour or more, although a portion of the time involved travel and passing through security at the jail.
158Although the appellant alleges inadequacy in counsel’s review of Crown disclosure with him, he does not claim unfamiliarity with the disclosure or a deficient understanding of the case he had to meet. Trial counsel gave evidence that she reviewed the disclosure with him, as well as the transcript of the preliminary inquiry, where all witnesses necessary to establish guilt had testified and been cross-examined by prior counsel. He also had a contested bail hearing, where some of the case against him was previewed.
159In his affidavit, the appellant admitted that he told trial counsel of his decision to testify at the end of the day before he began to give evidence. Trial counsel, he said, did not prepare him in any way, nor did she ask for an adjournment so that she could do so.
160The appellant’s recollection of these events is at odds with the trial record and the evidence of trial counsel. The transcripts show that the Crown’s case was at or near its completion on a Friday. Before adjourning court for the weekend, the trial judge asked, and trial counsel confirmed, that she would be ready to start the defence case the following Monday. Trial counsel gave evidence that she had two meetings with the appellant at the jail during the intervening weekend to prepare him to testify at trial.
161Further, the appellant assails the strength of trial counsel’s advice that he should testify. This alleged deficit in counsel’s conduct falls on barren ground. The appellant did testify. Manifestly, any advice he received was sufficiently forceful to persuade him to do so. He does not suggest that he ought not to have testified or that he was misled about his options. He says he made the decision himself as it was his to do.
162The single deficiency urged as reflecting incompetence in connection with the introduction of the appellant’s testimony relates to his answers to questions about his criminal record. Doubtless, counsel should have explained what was permissible and what was not, but the responses were harmless. This was a judge-alone trial. The trial judge had already heard evidence about the appellant’s criminal history on a pre-trial application to exclude his police interview as evidence. In his reasons, the trial judge explained that the appellant’s dated criminal record played no role in his assessment of the appellant’s credibility.
The Pre- and Post-Trial Applications
163The final aspect of the appellant’s allegation of ineffective assistance focuses on two applications, one before trial, the other after verdict. One bungled, the other not made.
164Trial counsel made several attempts to obtain third-party records at the outset of trial. The records sought varied. But procedural flaws predominated. Lack of timely notice. Improper service. No subpoena issued to the recordholders. No supporting materials filed.
165Trial counsel had never brought such an application in any other case and plainly did not know how to go about it. However, the record lacks any evidence that can explain how the records sought would have assisted the appellant in his defence. The dangerous offender proceedings concluded in 2013, the trial a year earlier, in 2012. The notice of appeal was filed in 2015. In these circumstances, I am not prepared to infer prejudice from the mere fact of procedural ineptitude. Despite the amount of time that has passed, there is no evidence that the records sought would have assisted the appellant at trial, nor an explanation as to how the records would have assisted.
166The other allegation of incompetence focuses on events that occurred after the appellant had been convicted, but before the dangerous offender proceedings had entered the hearing phase.
167At issue here is whether trial counsel was incompetent because she failed to apply to re-open the defence case after conviction based on the information obtained about Centre Island washroom facilities and the availability of frozen treats, as described in an email exchange between Ms. Lahey and Centre Island ticket sales. The email exchange took place about six months after the trial judge had released his reasons for judgment finding the appellant guilty on all six counts in the indictment. Trial counsel did not make an application to re-open the defence case. When cross-examined about her failure to do so, she appears to have considered that the issue could more probably be the subject of an appeal.
168For two principal reasons, the appellant’s argument that counsel should have applied to re-open the case based on the email exchange fails. The first has to do with the test that governs applications to re-open the defence case after verdict. The second concerns the nature of the evidence in issue.
169The test for re-opening the defence case after findings of guilt have been made and convictions entered is more rigorous than the test that applies when the same application is made before an adjudication of guilt. This is so because a more exacting standard is required to protect the integrity of the criminal trial process, including, but not only, the enhanced interest in finality: R. v. Kowall (1996), 1996 CanLII 411 (ON CA), 108 C.C.C. (3d) 481 (Ont. C.A.), at p. 493, leave to appeal refused, [1996] S.C.C.A. No. 487. See also R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at paras. 47-49.
170The criteria to be met when fresh evidence is tendered on appeal provide helpful guidance to judges asked to permit re-opening of the defence case after verdict. These criteria — summarized as admissibility, cogency and due diligence — posed insurmountable obstacles to the evidence at issue here. The contents of the exchange, in particular the response from ticket sales, was hearsay. It lacked cogency. And it could have been discovered with the exercise of due diligence at trial.
171In addition, this evidence would not have assisted the appellant’s case. The evidence was somewhat ambiguous, as it consisted of partial and indirect responses to Ms. Lahey’s questions, which were themselves ambiguous. The appellant proposes an interpretation of the evidence which would be exculpatory. Nonetheless, the evidence confirmed the existence of a “wheelchair accessible washroom” equipped with a sink. It also substantiated the availability of ice cream and related frozen products on the island. Thus, the evidence contradicted the two principal reasons the appellant claimed that the incident on Centre Island could not have happened as R.K. alleged.
Disposition of the Appeal from Conviction
172In the result, I would dismiss the appeal from conviction.
The Appeal from the Dangerous Offender Finding
173In the alternative, the appellant challenges the finding that he is a dangerous offender, as well as the indeterminate sentence imposed. Each ground of appeal he advances relates to the trial judge’s conclusion that the Crown had proven each of the elements essential to a finding of dangerous offender status beyond a reasonable doubt.
174Some additional background about the evidence adduced at the hearing will help to place the submissions of errors in their proper setting.
The Essential Background
175The Crown relied on ss. 753(1)(a)(i) and (b) as the basis for the dangerous offender finding. The predicate offences on which the application was grounded were those proven at trial. In addition, the Crown adduced evidence of the appellant’s early correctional history; opinion testimony from two psychiatrists; evidence from a federal parole officer experienced with high-risk offenders on various forms of conditional release; and the victim impact statement from N.C. on behalf of the complainants and their families.
The Appellant’s Background
176The appellant is the middle child. His family was dysfunctional. He was 33 years old at the time of the offences and 36 years old at sentencing. His mother, Ms. Lahey, moved to Nova Scotia in 1998. The appellant was then living with his girlfriend. Later, the relationship ended. The appellant’s father died unexpectedly in 2009. His death had a profound effect on the appellant.
177When the appellant was 14, the CAS became involved with his dysfunctional family. He incurred several convictions for offences committed in 1992 and 1993, when he was 15 or 16 years old. Except for the first offence in 1992, all the offences were committed with an older co-accused, who had abused the appellant. The circumstances of these offences were not established in court records. The Crown relied on police synopses to establish the conduct that underpinned the convictions and conceded that some of the records were not particularly reliable. The trial judge was satisfied that the synopses were reliable as to the dates of the offences, the ages of the parties and the general nature of what happened.
178In 1992, when the appellant was 15 or 16 years old, he had anal intercourse with a 13-year-old boy whom he had known for some time. He admitted having done so when testifying at his bail hearing on the predicate offences.
179When the appellant was 16, he and his 22-year-old co-accused enticed a young boy into a room where there was a mattress on the floor. When the co-accused began to unzip the young boy’s fly, the boy became scared. The incident ended.
180In 1993, when he was 16, the appellant and the same co-accused tried to persuade an 11-year-old boy to come to a room where they would perform various sexual acts. The boy refused. Nothing else happened.
181The final incident also occurred when the appellant was 16. He and the same co-accused enticed an 11-year-old boy into a car at a swimming pool. They drove to the appellant’s apartment building. The co-accused had oral sex with the boy. The appellant watched. At his bail hearing on the predicate offences, the appellant admitted being in the car with the co-accused and the boy, and he admitted entering a room with a mattress on the floor (in his apartment building). He claimed that he left before any sexual acts occurred.
182The first three offences resulted in convictions for invitation to sexual touching, the last, a conviction for abduction of a child under 14. The offences occurred 16 years before the predicate offences and were resolved on pleas of guilty. No convictions were entered in the intervening years.
The Expert Evidence
183The Crown appointed Dr. Derek Pallandi, a forensic psychiatrist, to conduct an assessment of the appellant under s. 752.1 of the Criminal Code. One of the grounds of appeal challenges the trial judge’s reliance on Dr. Pallandi’s report in concluding that the appellant is a dangerous offender.
184Dr. Pallandi diagnosed the appellant as a pedophile with several psychopathic traits which were not present to the degree necessary for a formal diagnosis of psychopathy. Pedophilia is a lifelong condition which is not curable. Available treatments include behavioural and pharmacological therapy, which may provide some controls. However, where, as here, an offender denies not only the offences, but also an underlying sexual preference for children, there are serious obstacles to treatment. And pharmacological intervention requires an offender’s consent, which is usually not, and in this case is not, forthcoming. The same denials pose an additional risk factor.
185Dr. Edward Sowa is also a forensic psychiatrist. He counselled the appellant during the custodial sentence the appellant received in Youth Court for the 1993 convictions. Dr. Sowa made minimal progress with the appellant, whom he described as boastful, manipulative and prone to exaggeration. The appellant had no interest in pharmacotherapy.
186Both Dr. Pallandi and Dr. Sowa considered the appellant at high risk to re-offend. From age 18, the appellant has had an entrenched sexual preference for young children.
The Trial Judge’s Findings
187The trial judge was satisfied beyond a reasonable doubt that the Crown had established that the appellant was a dangerous offender under ss. 753(1)(a)(i) and (b) of the Criminal Code. He also concluded that no sentence less than an indeterminate term of imprisonment would adequately protect the public. The evidence did not show that there was a reasonable expectation that a lesser measure would adequately protect the public.
The Grounds of Appeal
188The appellant alleges three errors in the trial judge’s analysis leading to his conclusion that the appellant is a dangerous offender. The alleged errors are in:
i. improperly evaluating and unduly relying on the opinion evidence of the psychiatrists;
ii. finding “a pattern of repetitive behaviour”; and
iii. misapprehending the evidence of Ms. Lahey.
Ground #1: Undue Reliance on Evidence of Psychiatric Opinion
189The appellant’s first challenge is to the trial judge’s evaluation of and reliance on the expert opinion evidence given by the two forensic psychiatrists, Dr. Pallandi and Dr. Sowa. Some additional background will help to elucidate the nature of the complaint.
The Essential Background
190Included in the materials Dr. Pallandi reviewed in reaching his conclusion were police synopses of the circumstances underlying the appellant’s previous convictions; records of CAS involvement with the appellant’s family and of the appellant’s treatment as a youthful sexual offender; and information about the gross number of charges levied against the appellant, including those that did not result in convictions.
191In addition, both forensic psychiatrists assumed that in the 16 years between his Youth Court convictions and those of the predicate offences, because of the nature of pedophilia and the appellant’s committed sexual preferences, he likely committed other similar offences.
The Reasons of the Trial Judge
192In his lengthy written reasons, the trial judge:
i. rejected Dr. Pallandi’s assumption that the appellant committed further sexual offences in the gap between the youth and adult convictions;
ii. assigned no weight to Dr. Pallandi’s speculation about a number of unverified victims based on information contained in CAS records; and
iii. criticized Dr. Pallandi for failing to consider any positive aspects in the appellant’s history.
193In a similar way, the trial judge did not rely on the impermissible speculation of Dr. Sowa that because of the appellant’s deeply ingrained sexual preferences for young children, it was hard for him (Dr. Sowa) to accept that, in the 16 years between convictions, the appellant did not commit other sexual offences.
194The trial judge expressed his conclusions on the likelihood of future re-offending in these terms:
Taking all the above analysis and findings into consideration, I am satisfied that the Crown has proved the future conduct element of s. 753(1)(a) and (b) beyond reasonable doubt, that is, the “likelihood of … inflicting severe psychological damage … through failure in the future to restrain his … behaviour” and the “likelihood of causing injury, pain or other evil … through failure in the future to control his … sexual impulses”. In particular, I rely on the following proved facts:
the assessments by Dr. Sowa and the J.D. Griffin Centre therapists in 1994, concerning Gibson’s entrenched sexual preferences at age eighteen, his ability to minimize, rationalize and engage in cognitive distortions about his offending behaviour, his poor prospects for treatment, and his high risk to re-offend;
the confirmation of these assessments in 2009, when he deliberately acted out in the same manner and committed the predicate offences;
the rational planning and premeditation involved in Gibson’s gaining access to and grooming of the two young victims, deliberately creating opportunities for himself to re-offend;
the cognitive distortions that he again utilized, while committing these offences and when rationalizing them afterwards;
his inability to restrain his behaviour, even when warned by his mother, who is the one person in the world who is closest to him and who he undoubtedly cares for;
the ongoing repetition of the predicate offences, in relation to two separate victims, indicating that these were not isolated or situational offences;
the diagnosis of pedophilia, the fact that it is a life-long condition with no cure, and the limited treatments available to ameliorate its risks;
the complete refusal by Gibson to acknowledge his sexual preference for children, and to engage in treatment, and the resulting exacerbation of his risk of re-offending.
In all these circumstances, I am satisfied that present existence of the likely or probable risk of re-offending, in the s. 753 sense and as explained in Lyons and Knight, has been proved beyond reasonable doubt. Gibson, therefore, meets the test for a dangerous offender designation. The requisite “threat to the life, safety or physical or mental well being of other persons” has been proved, pursuant to s. 753(1)(a), and the essential elements of the s. 753(1)(b) test have also been proved.
The Arguments on Appeal
195The appellant contends that neither Dr. Pallandi nor Dr. Sowa approached their assessments in a scientific and unbiased way. Their risk assessments were based in part on an assumption of undetected and uncharged offences over the intervening years. Although the trial judge challenged both experts for their reliance on unsubstantiated offences, he nonetheless accepted their evidence in reaching his conclusion about the likelihood of future recidivism. This was critical to his determination that the appellant was a dangerous offender. Reliance on the opinions of these experts in these circumstances, conclusions based in part on “outdated science” on the link between denial and the risk of recidivism, was unreasonable and warrants a new hearing.
196The respondent characterizes the trial judge’s approach to the impugned evidence as at once fair and cautious. He did not rely on any aspect of the opinions founded on hearsay or impermissible speculation. It is commonplace, the respondent says, for experts to rely on second-hand information. To the extent they do so, this affects the weight a trier of fact may assign to their testimony. Their opinions are not inadmissible as a result. Their ultimate reliability is for the trier of fact to decide, and that determination is entitled to deference on appeal.
197Here, the respondent continues, the expert evidence was relevant to establish the appellant’s diagnosis, to assess the risk of future recidivism and to determine whether some form of treatment could control that risk in the community. The trial judge was required to and did ensure that the opinions he relied on were not contaminated by reliance on unproven allegations. He used the psychiatric evidence within permissible limits in a critical, rigorous and fair-minded way. His conclusion is entitled to deference.
198The respondent argues that in determining whether there was a “likelihood” of future re-offending, the appellant’s insight into his offending cycle and his commitment and amenability to required treatment are critical factors. Denials of guilt and failures to accept responsibility are relevant to treatability and future risk. The trial judge properly considered them here.
199The appellant’s argument that the court erred by relying on “outdated science”, the respondent submits, should be rejected. This argument, which is based solely on an academic article, is raised for the first time in this court. The article was not put to either expert at sentencing. Nor was it made an exhibit at trial. It should have been, but was not, the subject of a fresh evidence application in this court. In its current form, it is of no value in our decision on this appeal.
The Governing Principles
200The principles governing the admissibility and use of expert opinion evidence are well known and need not be restated here. Some brief points will suffice.
201Expert opinion evidence which otherwise qualifies for reception is not excluded simply because it is based in part on second-hand information: R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at p. 893.
202The second-hand evidence is admissible to show the information on which the opinion is based. But this evidence is not proof of the underlying facts on which the opinion is based: Lavallee, at p. 893.
203As long as there is some admissible evidence to establish the foundation for the expert’s opinion, the expert’s evidence remains available for consideration by the trier of fact. However, the more the expert relies on facts that are not otherwise established in the evidence, the less weight the trier of fact may attach to the expert opinion: Lavallee, at pp. 893, 896. See also R. v. Wilband, 1966 CanLII 3 (SCC), [1967] S.C.R. 14, at p. 21.
204In addition to these basic principles, specific mention should be made of the relevance of denials of offending conduct, lack of insight, and treatability in dangerous offender proceedings.
205The amenability of a prospective dangerous offender to treatment and the prospects for success of treatment are factors worthy of consideration on the issue of future control of the risk of recidivism: R. v. Little, 2007 ONCA 548, 225 C.C.C. (3d) 20, at para. 40, leave to appeal refused, [2008] S.C.C.A. No. 39, citing R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at paras. 33-36.
206Evidence of the offender’s future treatment prospects is relevant at the designation stage of the dangerous offender analysis. In other words, this evidence is relevant to the question of whether an offender should be designated a dangerous offender: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 42.
207Although courts must be chary of using a perceived lack of remorse as evidence of future dangerousness, the failure of an offender to accept responsibility for their conduct may be a factor where treatment may be necessary to control future dangerousness: R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 40. See also Little, at paras. 43-44.
208A final point concerns the admissibility of fresh evidence on an appeal from a decision in dangerous offender proceedings under Part XXIV of the Criminal Code. Simply put, fresh evidence may be received in these appeals, provided it meets the Palmer criteria of admissibility, cogency, and due diligence: R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 28-29, 42-44; M.G.T., at para. 49.
The Principles Applied
209A combination of factors persuades me that this ground of appeal should be rejected.
210The first has to do with the nature of the ground itself.
211The appellant does not challenge the admissibility of the expert opinion evidence. The submission is that the trial judge erred in relying on this evidence in concluding that the appellant was a dangerous offender. Pared to its core, the submission is that the trial judge erred in the weight he assigned to this evidence. But the assessment of the weight to assign to individual items of evidence and to the evidence as a whole falls squarely within the exclusive domain of the trial judge as the trier of fact. The trial judge’s conclusions on these issues are entitled to deference in this court, absent a misapprehension of evidence, the application of an erroneous legal principle, or a palpable and overriding error.
212In this case, the trial judge was keenly aware of the limitations inherent in the expert opinion evidence, principally hearsay and speculation about further offences. Nothing said or left unsaid in his reasons can support a conclusion of error in his assessment of the probative value of this evidence.
213Second, the trial judge’s reliance on evidence of the appellant’s denials of the offending conduct and his resistance to treatment were relevant factors for the trial judge to consider on the issue of treatability, and hence properly taken into account at both the designation and disposition phases of the proceedings.
214The appellant’s submission that the expert evidence was flawed because it was based on “outdated science” is unavailing. Its source is an academic article that was not put to either forensic psychiatrist in the sentencing proceedings. In the absence of a successful application to introduce fresh evidence on appeal, it is, in no sense, evidence in these proceedings. Further, tendered here on an application to introduce fresh evidence, it could not satisfy the admissibility requirement, and it was clearly available by the exercise of due diligence. Finally, even if this evidence were admitted, the lack of context provided for the academic article prevents this court from assessing its significance in the academic discourse. This court is not in a position to assess the article’s potential significance to the law on the link between denial and the risk of recidivism.
215This ground of appeal fails.
Ground #2: The Pattern Requirement
216The appellant challenges the trial judge’s finding that the evidence established the pattern of behaviour required for designating the appellant as a dangerous offender under ss. 753(1)(a)(i) and (b) of the Criminal Code. The nature of the argument advanced does not require further reference to the evidence adduced. An excerpt from the trial judge’s reasons affords sufficient background for the discussion that follows.
The Reasons of the Trial Judge
217The trial judge’s conclusion on this issue appears in the following passage in his written reasons:
Gibson has obviously committed the necessary predicate offence under both statutory routes as he has been convicted of sexual assault. Furthermore, there is a common sense inference that, when he committed the numerous sexual assaults on R.K. and A.C., Gibson showed “a failure to restrain his … behaviour” under the s. 753(1)(a) route, as well as “a failure to control his … sexual impulses” under the s. 753(1)(b) route. See: R. v. Sullivan (1987), 1987 CanLII 6853 (ON CA), 37 C.C.C. (3d) 143 at paras. 21 and 31-3 (Ont. C.A.). Ms. Choi submits that the requisite “pattern” has not been proved, because these predicate offences are Gibson’s first adult convictions and there is a sixteen year “gap” since his 1993 Youth Court convictions. However, the present offences were strikingly similar. Furthermore, they involved two separate victims and ongoing periods of gaining access and similar grooming, followed by an ongoing series of similar assaults on both victims. The course of conduct revealed by these adult offences alone, leaving aside the 1993 Youth Court convictions for now, shows a present existing “pattern” of conduct in the above two statutory senses.
The Arguments on Appeal
218The appellant says that the analysis required under both ss. 753(1)(a)(i) and (b) includes proof of a pattern of conduct by the offender. Here, the trial judge found the required pattern exclusively based on the predicate offences. This was an unreasonable finding.
219In this case, the appellant contends, both complainants were assaulted in the same context, in the same places and in the same manner. Both convictions were treated as one transaction even though the conduct alleged extended over a period of three to four months.
220Further, the appellant continues, the appellant’s dated Youth Court convictions were incapable of establishing a pattern when compared to the convictions for the predicate offences. The youth convictions involved very different circumstances, including the involvement of an older and dominating co-accused who abused the appellant. The circumstances of these offences are unclear in large measure because of the unreliability of the records offered in proof.
221The respondent joins issue with the appellant. The trial judge was right to find the necessary patterns established based on the predicate offences. The evidence revealed repeated assaults on two complainants over the same extended period of time. The assaults occurred at different times. None involved both boys at the same time. Reliance on the “single transaction” cases assessing the propriety of alleging several incidents as a single count in an indictment is misplaced.
222What is important for the purpose of establishing a “pattern”, the respondent says, are similarities in the conduct, not the number of offences or convictions. Here, there were striking similarities in the offences sufficient to establish the required pattern. Two convictions of strikingly similar predicate offences can sustain a finding of the requisite “pattern”.
The Governing Principles
223It is uncontroversial that two incidents may constitute a pattern, provided they disclose a sufficient degree of similarity: R. v. Hogg, 2011 ONCA 840, 287 O.A.C. 82, at paras. 40, 43; R. v. Byers, 2017 ONCA 639, at paras. 20-23.
224The pattern requirement in ss. 753(1)(a)(i) and (b) is not based exclusively on the number of offences. It is also rooted in the elements of similarity in the offender’s behaviour: R. v. Langevin (1984), 1984 CanLII 1914 (ON CA), 11 C.C.C. (3d) 336 (Ont. C.A.), at pp. 348-49. See also R. v. Knife, 2015 SKCA 82, 460 Sask. R. 287, at para. 67, leave to appeal refused, [2015] S.C.C.A. No. 382.
225Section 581(1) of the Criminal Code enacts a rule of criminal pleading. As a general rule, each count in an indictment must refer to a single transaction. The term “transaction” is not synonymous with “incident”, “occurrence” or “event”. A single transaction may include separate acts that are successive and cumulative and which comprise a continuous series of acts forming one transaction: R. v. Hulan, 1969 CanLII 306 (ON CA), [1970] 1 C.C.C. 36 (Ont. C.A.), at p. 45; R. v. Selles (1997), 1997 CanLII 1150 (ON CA), 116 C.C.C. (3d) 435 (Ont. C.A.), at p. 444.
The Principles Applied
226I would not accede to this ground of appeal.
227The trial judge put to one side the appellant’s earlier offences, which resulted in convictions in Youth Court and a sentence of nine months in open custody. He found the necessary pattern established based on the predicate offences. Those offences involved two complainants to whom the appellant had ongoing access for several months. They involved grooming, followed by strikingly similar offences, including anal intercourse.
228The statutory requirements demand proof of a pattern of behaviour, not a pattern of offences or convictions. In its ordinary, everyday sense, a pattern refers to an arrangement or order discernible in, among other things, objects, actions or ideas. As used in s. 753(1), a pattern refers to actions, not thoughts. The required pattern is based not solely on the number of offences, but also on the elements of similarity in the offender’s behaviour. This is what the trial judge found based on evidence that provided a full measure of support for the finding.
229The appellant’s reliance on the authorities interpreting the “single transaction” requirement in s. 581(1) of the Criminal Code is misplaced. Those authorities are concerned with the sufficiency of a criminal pleading, not with whether a pattern emerges from an offender’s behaviour over time such that it satisfies an essential element at the designation stage of dangerous offender proceedings.
230No serious issue is taken with the principle that two strikingly similar incidents, or series of incidents, can sustain a finding of a pattern of behaviour for the purposes of s. 753(1)(a), or that a single incident can meet the requirements of s. 753(1)(b): Boutilier, at para. 102, per Karakatsanis J. (dissenting in part, but not on this point); Langevin, at p. 348.
231Finally, even if the behaviour involved in the predicate offences cannot be the exclusive source to furnish the pattern requirement in s. 753(1)(a) because of the reference to “of which the offence for which he or she has been convicted forms a part”, the inclusive language in s. 753(1)(b) makes it clear that the behaviour revealed in the predicate offences can sustain the burden. The trial judge found the appellant’s behaviour also met the requirements of s. 753(1)(b).
232This ground of appeal fails.
Ground #3: Misapprehension of Evidence of the Appellant’s Mother
233The final ground of appeal duplicates a complaint made on the appeal from conviction — a misapprehension of the evidence of the appellant’s mother, Ms. Lahey.
234The evidence in controversy has been summarized earlier and need not be repeated. Likewise with the principles that control our decision when misapprehension of evidence is urged as a ground of appeal.
235A brief reference to the arguments advanced in this court will provide the background essential to understanding the alleged error.
The Arguments on Appeal
236The appellant reminds us that Ms. Lahey testified that she was concerned about the nature of the appellant’s involvement with the complainant’s families. Her concern was not that the appellant was abusing the boys, but rather how the nature of his contact with them might be construed because of his prior offending history. As a result, Ms. Lahey told her son to “back off” in this relationship. The appellant rejected her advice.
237The appellant says the trial judge misapprehended this evidence by improperly using it to shore up his finding of future risk of recidivism. And he also mischaracterized her concern as related to actual conduct, rather than outward appearances, as she testified.
238The respondent rejects any suggestion that the trial judge misapprehended this evidence. He properly described its substance and made no error in its use.
239The trial judge was not concerned about the reasons Ms. Lahey gave for warning the appellant about the nature of the relationship with the complainants and their families. What the trial judge saw as significant was that, despite the warning, the appellant lacked sufficient control over his sexual urges, so that he re-offended. This evidence was relevant to future dangerousness since it tended to show that a type of behavioural restraint, moral suasion, had no effect as behavioural control.
240In any case, the respondent continues, reliance on this evidence was not material to the finding of future dangerousness. That finding was fully supported by the appellant’s diagnosis as a pedophile, the actuarial and clinical assessments about the risks, and his offending history.
The Governing Principles
241The principles that govern our determination of alleged misapprehensions of evidence have been canvassed in paragraphs 56-60. There is no need to repeat them here.
The Principles Applied
242I would reject this ground of appeal.
243After concluding that the Crown had established beyond a reasonable doubt that the appellant had been convicted of a serious personal injury offence and had engaged in the pattern of behaviour required under s. 753(1)(a)(i) and the conduct required under s. 753(1)(b), the trial judge turned to the “future conduct” requirement.
244The trial judge recognized that the future conduct was all about the likelihood and nature of recidivism. The expert evidence established the significant risk of sexual offence recidivism of the required gravity. The experts diagnosed the appellant as a pedophile, a lifelong condition with no known cure. The limited treatments to ameliorate its recidivistic risks do not assist the appellant’s case, either because he rejects them outright (pharmacological intervention) or because his denials pose insurmountable barriers to even modest success (behavioural therapy).
245The brief reference to the appellant’s rejection of his mother’s warning in the context of the efficacy of moral suasion as a behavioural restraint was neither misplaced nor material to the trial judge’s conclusion on the issue. Its removal from the analysis would not leave the ultimate finding on shaky ground.
Disposition of the Appeal from the Dangerous Offender Finding
246In the result, I would dismiss the appeal from the dangerous offender finding, as well as the indeterminate sentence imposed.
Disposition
247For these reasons, I would dismiss the appeal in its entirety.
Released: July 23, 2021 “JMF”
“David Watt J.A”
“I agree. Fairburn A.C.J.O.”
“I agree. Grant Huscroft J.A.”
