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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court: Court of Appeal for Ontario

Date: 2018-11-29

Docket: C60596

Panel: Watt, van Rensburg and Fairburn JJ.A.

Between:

Her Majesty the Queen Respondent

and

Sherilee Slatter Appellant

Counsel:

• Dan Stein and Andrew Menchynski, for the appellant
• Gillian Roberts, for the respondent

Heard: June 11, 2018

On appeal from: The conviction entered on December 12, 2014 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting without a jury.

Judgment delivered by: Fairburn J.A.

I. OVERVIEW

[1] P.J. was the appellant's foster child in 2005. S.L. was the appellant's parents' foster child in 2008. Following a judge alone trial, the appellant was convicted of sexual assault and sexual exploitation in relation to P.J. and sexual invitation in relation to S.L. She appeals against those convictions.

[2] The appellant raises numerous grounds of appeal. She contends that:

(a) the trial judge's involvement in her former husband's trial created a reasonable apprehension of bias;

(b) the evidence of a key prosecution witness was improperly elicited;

(c) the trial judge failed to consider the impact of lost evidence;

(d) her trial counsel provided ineffective assistance; and

(e) the trial judge failed to consider important evidence, gave uneven scrutiny to evidence and engaged in stereotypical thinking.

[3] For the reasons that follow, I would dismiss the appeal.

II. BACKGROUND

[4] The appellant and her husband, Richard Fildey, were foster parents. P.J. lived with them between May and October 12, 2005. During most of that time, P.J. was fifteen years of age. After P.J. had left the appellant's home, he told people that he had consumed alcohol and engaged in sexual intercourse with the appellant on multiple occasions.

[5] After word about the sexual relationship between P.J. and the appellant started to seep out, the appellant gave a statement. Although the video recording of that statement was lost by the time of trial, the audio had been preserved and a transcript was available.

[6] The appellant told the police that she was aware that P.J. had been telling people that they had been "sleeping" together, but that she had actually been raped by P.J. on three occasions while he was living in her home and her husband was at work. The appellant said that P.J. was stronger than she was and that she could not fight him off. She described how he would pin her down, penetrate her, and render her incapable of escape. She spoke of bruising that she incurred as a result of the alleged assaults. While she acknowledged that P.J. was a small teenager, about 100 pounds, she said that he was "strong". The appellant weighed close to 300 pounds at the time.

[7] Three days following the appellant's interview, the police interviewed P.J. He described the sexual intercourse as consensual. There is no dispute that there were two legal bars to consent in this case: (a) P.J. was fifteen years of age at the time that most of the conduct took place; and (b) the appellant stood in a position of trust toward P.J. Accordingly, there is no dispute that if P.J. and the appellant had sexual intercourse, and he did not sexually assault her, that she was guilty of sexual assault and sexual exploitation. No charges were laid in 2005 and the investigation was closed.

[8] By 2008, the appellant had separated from her husband, Richard Fildey, after which she moved into her parents' home on a part-time basis. Fifteen-year-old S.L. was living with the appellant's parents at that time. S.L. testified that the appellant invited S.L. into her bedroom one day, gave her alcohol and encouraged her to take off her pants and masturbate. S.L. testified that the appellant encouraged her to use a pink dildo. S.L. complied. The appellant masturbated beside S.L. on the bed. Following the masturbation, the appellant pulled a book out from under her bed and had S.L. sign a "blood oath" saying that they would never speak about the event.

[9] The appellant's boyfriend, Christopher Lozano, lived in California. He was watching S.L. and the appellant on his computer from that location. He testified that there was a camera on the appellant's computer in her room. It was capable of sending a real-time image to his computer.

[10] Although S.L. shared this experience with a few people over time, she did not tell the police until 2012. Around that same time, the police again interviewed P.J. Charges were then laid.

III. ANALYSIS

[11] I will first address the claim relating to a reasonable apprehension of bias. I will then consider the appellant's suggestion that Christopher Lozano's evidence was improperly elicited, after which I will examine the appellant's position respecting the lost evidence. As those issues overlap with the ineffective assistance of counsel claim, I will next deal with that claim. I will conclude by considering the alleged errors in the trial judge's reasoning process.

(a) The Reasonable Apprehension of Bias Claim: There was No Reason for the Trial Judge to Recuse Himself

(i) Overview

[12] The trial judge had previously presided over a trial involving the appellant's former husband. Fildey had been convicted in that judge alone trial of sexually assaulting a former foster child of the couple. The appellant played no part in her ex-husband's trial. Fildey had testified and denied the offence. In finding him guilty, the trial judge had rejected Fildey's evidence, finding it incredible.

[13] The appellant maintains that the trial judge should not have presided over her trial because there was a reasonable apprehension of bias arising from the fact that: (a) Fildey's trial had raised similar factual and legal issues to those raised against the appellant; and (b) the trial judge was required to consider Fildey's credibility in the appellant's trial. I disagree.

[14] Judicial impartiality lies at the core of our justice system. There is a "strong presumption" in favour of impartiality, one that is "not easily displaced": Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 25. See also: R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 30; Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 395. To rebut that presumption and show a reasonable apprehension of bias, the moving party has a "high burden of proving the claim": R. v. S.(R.D.), [1997] 3 S.C.R. 484, at para. 114; Yukon, at para. 26. Substantial grounds are required to displace the presumption of impartiality: S.(R.D.), at para. 112; Nero, at para. 30.

[15] To establish a reasonable apprehension of bias, the moving party must demonstrate that it is a "reasonable" claim, one that would be "held by reasonable and right-minded persons applying themselves to the question and obtaining the required information about it": Nero, at para. 29. The question is, "what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude": Committee for Justice and Liberty, at p. 394; R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at paras. 18–23.

(ii) The Fact of Having Presided Over Fildey's Trial

[16] The presumption of impartiality prevails in this case. The fact that the trial judge had previously presided over Fildey's trial did not, in and of itself, deprive him of the ability to preside over the appellant's trial. There were no allegations made against the appellant in the former trial and she did not testify. The trial judge had never been called upon to adjudicate on her role in any alleged misconduct. Nor had the trial judge been previously called upon to consider the appellant's conduct or her credibility or reliability as a witness.

[17] Importantly, no one suggested that the trial judge could not preside simply because he had presided at the earlier trial. Defence counsel stated he was content to have the trial judge hear the case.

[18] From the outset, the issue was only whether the appellant's former husband would testify at the appellant's trial. If so, the trial judge self-identified that there may be a problem with him presiding because he had previously opined on Fildey's credibility. That was the nub of the issue and the one that both parties and the trial judge focused on from the outset. The fact that trial counsel did not ask the trial judge to recuse himself simply on the basis that he had presided over Fildey's trial belies the claim of an appearance of bias: R. v. Curragh Inc., [1997] 1 S.C.R. 537, at para. 11. I would not accede to that submission now made on appeal.

(iii) The Trial Judge Did Not Consider Fildey's Credibility

[19] I will now consider the appellant's second submission, that there was an appearance of bias arising from the fact that, even though Fildey did not testify, the trial judge was still called upon to assess his credibility.

[20] When discussing the ineffective assistance of counsel claim, I will address the circumstances surrounding my conclusion that Fildey was hostile to the appellant by the time of trial and would not have made a good defence witness. For present purposes, what is important is that Fildey never took the stand at the appellant's trial.

[21] Even so, the Crown agreed to the admission of a hearsay statement made by Fildey to the police in 2005, shortly after the appellant had spoken to the police and told them that P.J. had sexually assaulted her. Although Fildey's audio statement was missing by the time of trial, the police officer who took that statement was able to recall what Fildey had said. On the agreement of Crown and defence counsel, the following hearsay statement was admitted for the truth of its contents. The officer who took the statement testified that Fildey had told him that:

(a) he had noticed bruises on his wife's arms;

(b) P.J. was a "strong little bugger or something like that"; and

(c) he learned about the allegations from his wife "around the dates of October 24, 23 for the first time".

[22] The police officer confirmed in cross-examination that he had no recollection of Fildey saying that P.J. had told him about the sexual contact between P.J. and the appellant.

[23] The appellant maintains that, even though Fildey did not testify, the admission of his hearsay statement required the trial judge to assess his credibility. She says that Fildey's credibility was in issue because there was a crucial conflict between Fildey and P.J.'s evidence.

[24] The appellant contrasts Fildey's hearsay statement, about being told about the sexual conduct by his wife, with P.J.'s testimony that he told Fildey. The appellant argues that the two versions of evidence on that subject cannot co-exist. She says that either Fildey or P.J. were lying about who told Fildey and that this required the trial judge to reconcile the credibility issue, heightening the concern over the purported, reasonable apprehension of bias.

[25] I reject this submission for three reasons.

[26] First, I do not agree that Fildey's hearsay statement and P.J.'s evidence cannot co-exist. Fildey may well have first been told by the appellant about the sexual conduct with P.J. and later told about the events by P.J. The fact that the police officer who testified about Fildey's statement had no recollection of Fildey saying that P.J. told him about the sexual conduct, does not mean that P.J. did not tell him. It only means that Fildey did not mention that to the police officer. Accordingly, there is nothing inherently inconsistent between Fildey's statement and P.J.'s evidence. As such, there was no credibility issue to resolve.

[27] Second, although initially described as a hearsay statement admitted for the truth of its contents, the parties and trial judge ultimately treated Fildey's statement as if it were an agreed statement of fact. For instance, in referring to the appellant's bruising in his closing submissions, defence counsel said that it was "admitted by the Crown so that Your Honour doesn't have to do any weighing". The trial judge responded, "that's right".

[28] Finally, the parties did not ask the trial judge to assess Fildey's credibility. Nor did he. The reasons for judgment are silent on any such credibility assessment.

[29] There was no apprehension of bias created by the trial judge presiding over the trial or by him considering Fildey's hearsay statement.

(b) Treatment of Christopher Lozano's Evidence

(i) Overview

[30] The appellant was originally charged with three offences in relation to the S.L. incident: (a) sexual invitation; (b) conspiracy to commit sexual assault; and (c) distribute child pornography. The sexual invitation count involved the suggestion that the appellant encouraged S.L. to remove her clothing and masturbate on the appellant's bed. The conspiracy allegation involved the suggestion that the appellant came to an agreement with Christopher Lozano, who resided in California at the time, about what was to take place with S.L. The distribution of child pornography charge related to the allegation that the offence was caught on camera and Lozano watched on his computer as it was occurring. On the basis of Lozano's evidence, the appellant was acquitted on the conspiracy and distribution of child pornography counts.

[31] Lozano testified at the appellant's trial by way of video link. He was in California at the time. His evidence was confusing and contradictory at best. The appellant challenges Lozano's evidence on two bases: (a) the Crown did not follow the correct procedure in attempting to refresh Lozano's memory; and (b) the trial judge and Crown's comments about the existence and effect of Lozano's induced statement to the police created unfairness.

[32] I do not agree that any unfairness arose from how Lozano was examined or treated during his testimony.

(ii) Background Facts

[33] In order to understand Lozano's evidence, it is first helpful to briefly review S.L.'s evidence. She testified that the appellant invited her into the appellant's bedroom and gave her a number of vodka drinks over a short period of time. The appellant spoke with her boyfriend, "Chris", on the phone. According to S.L., the appellant then used a webcam to make a connection with Chris who was in California at that time.

[34] The appellant removed her pants and asked S.L. to do the same. The appellant then asked S.L. to masturbate using a pink dildo. S.L. complied. According to S.L., she and the appellant masturbated side-by-side on the appellant's bed. S.L. said that she could see a shadow of the appellant's boyfriend on the computer at the end of the bed. According to S.L., she could see that he was masturbating at the same time that they were.

[35] At the time of trial, Lozano was on parole for an unrelated matter involving having touched a child under 14 years of age for a sexual purpose. He testified that he knew S.L. because he had met her shortly after the offence, when he visited the appellant at her home in Ontario. S.L. testified that she had met "Chris" when he visited at the appellant's parents' home a few weeks after the webcam encounter.

[36] During his examination-in-chief, Lozano acknowledged that he saw S.L. masturbating on the appellant's bed, but he was hazy on many matters, including: whether he had seen S.L. and the appellant drinking alcohol on the appellant's bed; the layout of the appellant's room; and whether the appellant and S.L. were masturbating on the bed at the same time.

[37] The trial Crown sought to refresh Lozano's memory with the use of his police statement and preliminary inquiry evidence. He does not appear to have had the transcripts in front of him, so the trial Crown read out the passages she wished to bring to his attention. Although Lozano's memory improved somewhat with the use of those passages, he maintained that he was still experiencing difficulty remembering the details surrounding the event.

[38] Lozano eventually expressed how "nervous" and "stressed out" he was, explaining that he was not trying to be difficult. The Crown asked to address the court in Lozano's absence. Before muting the microphone, Lozano requested that the Crown explain what had earlier been discussed out of court. That request was denied. Lozano then requested permission to ask a question. The trial judge granted that request, after which Lozano expressed his concern that "you guys are going to turn on me and come and have me arrested and charged for all this."

[39] The trial Crown then asked permission to "assist" the court by explaining. She said that Lozano had provided an "induced statement", meaning that if he told the truth he would not be prosecuted. Lozano expressed concern that the agreement was not "100 percent ironclad", after which the trial judge said:

It is now on the record that essentially there was an agreement entered into between you on the one side and the Office of the Crown Attorney … [that] in return for your testimony the Office of the Crown Attorney has agreed not to proceed with any criminal charges against you based on your evidence. That's on the record here. … And I can tell you that that's likely as good as gold.

[40] Lozano's memory problems continued. Accordingly, Crown counsel again asked to address the court in Lozano's absence. The Crown said that she wished to proceed with an application under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 to demonstrate the witness' "adversity". As the Crown would need to play Lozano's 50-minute video statement, the logistics would have to be worked out and an adjournment of Lozano's evidence was inevitable because there was not sufficient time to coordinate the matter that day.

[41] Defence counsel acknowledged that the Crown had been attempting to refresh Lozano's memory and that, if Lozano had been present in the courtroom, the Crown probably would have proceeded earlier with the s. 9(2) application. The trial judge proposed that he speak to Lozano and "give him a roadmap of what is likely to happen". Both counsel agreed with the trial judge's proposal.

[42] When Lozano was linked back into the courtroom, the trial judge explained to him that there may be "good and valid reasons" for the "apparent difference" between Lozano's police statement and his evidence at trial. It may have arisen from his loss of recollection or from a concern over the "possible adverse impact" of his evidence on his future. The trial judge reinforced that the witness could take "to the bank" the agreement with the Crown not to prosecute him for "anything" he said in court and that there would be "potential repercussions here if the Crown Attorney were to disregard or ignore that undertaking given in good faith."

[43] The trial judge went on to explain the procedure that applies when a witness gives evidence that is inconsistent with his earlier statements, including that the Crown might play his video statement and that he could be found "adverse" and cross-examined by the Crown. If that procedure were to be invoked, Lozano would have to return to complete his evidence on another day.

[44] The Crown then continued her examination and Lozano testified to the events involving S.L., including that: the appellant had told him on the phone that he would see two girls "making out"; he saw S.L. masturbating on the bed; he could not recall where the appellant was during that time; he thought that S.L. and the appellant were lying next to each other on the bed masturbating; and that it all came to an end when the appellant shut the camera off.

[45] During cross-examination, Lozano resiled from a good deal of his evidence in-chief. He also provided evidence that was in direct conflict with S.L.'s version of events. For instance, he said: he did not have a webcam and so there was no way for anyone to see what he was doing; he did not see a dildo being used; he could not be certain that he saw S.L. masturbating because of the position of the webcam that did not capture the face of the person he saw; and he only saw one person masturbating.

[46] In the end, Lozano's evidence left the trial judge with a reasonable doubt about the conspiracy and distribution of child pornography counts. He was acquitted on those counts.

(iii) Lozano's Memory was Refreshed Using a Fair Procedure

[47] The appellant claims that the trial judge erred by permitting Lozano's memory to be refreshed in the manner pursued by the trial Crown. Specifically, the appellant objects to the Crown having: (a) failed to ask Lozano if he wanted some assistance with recalling the events; (b) read out passages from Lozano's prior statement and preliminary inquiry evidence; and (c) failed to proceed to a s. 9(2) application. Although I agree that, as acknowledged by the respondent, the steps taken to refresh Lozano's memory did not follow a textbook approach, I disagree that any unfairness resulted from the procedure followed. That procedure made sense in the circumstances of this case.

[48] Before using the prior statement and preliminary inquiry testimony to refresh Lozano's memory, counsel should have elicited from him that he thought those documents would assist him in reviving his memory. Nothing turns, though, on the fact that the Crown did not first elicit Lozano's view on that subject.

[49] Lozano had clearly and unequivocally expressed his failure to remember many of the details involving the S.L. incident. His evidence was riddled with comments like: "I don't remember", "I don't remember exactly", "I don't recall", "I guess". He later expressed his "frustration" and said that he was trying his best to remember. The documents used to refresh his memory, a prior police statement and prior evidence, are standard tools used to refresh memory. In these circumstances, there can be little doubt that had Lozano been asked whether he wanted some assistance in refreshing his memory, he would have accepted the offer and it could have been done.

[50] The appellant says that Lozano's prior statement and evidence could not have been used for purposes of past recollection recorded or otherwise because they lacked a contemporaneous quality.

[51] With respect, there is no suggestion that the evidence elicited from Lozano was past recollection recorded. Lozano's attention was taken to his prior statements by the Crown and the relevant procedure was explained to him by the trial judge. Ultimately Lozano provided his present recollection of the material events in examination-in-chief. The prior statements were not made exhibits at trial or otherwise admitted into evidence, and were not relied upon for the truth of their contents by the trial judge.

[52] Where a witness professes a genuine absence of memory at the time of testifying, but can recall giving an earlier truthful statement, the earlier statement may be admitted as an exception to the hearsay rule provided certain conditions are met: R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, at para. 63. Those conditions, among them the need for the prior statement to have been made within a reasonable time of the event that is documented in the statement, exist because the witness no longer has a recollection that can be scrutinized in cross-examination.

[53] There is no temporal consideration associated with the statement when seeking to use a prior statement to refresh a witness' memory or proceed with an application under s. 9(2) of the Canada Evidence Act: Fliss, at para. 45; R. v. Coffin, 114 C.C.C. 1 (S.C.C.) at p. 22; R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at paras. 43–51. Where the witness then testifies to a present recollection of the material events, the witness has provided evidence in the normal course, and that evidence can be appropriately scrutinized through cross-examination. That is what occurred here, and Lozano did indeed resile from several statements made in examination-in-chief. Acquittals followed.

[54] Accordingly, the fact that Lozano was not first asked whether he wanted assistance in refreshing his memory, is neither here nor there. If he did not want assistance by having his memory refreshed, the matter would have moved to a cross-examination under s. 9(2) as earlier requested by the Crown. Either way, Lozano would have had his prior statement and evidence put to him.

[55] The appellant also claims that he suffered prejudice when the trial Crown read out the passages from his prior statement and evidence. Again, while the chosen methodology to refresh memory did not follow a textbook approach, it was a fair and practical approach, particularly in light of the fact that Lozano was a hesitant, difficult witness, testifying by video link from California.

[56] Indeed, the fair manner of proceeding is clear from defence counsel's observations on the record. While he objected to certain aspects of the Crown's approach, including the accuracy of the transcript from the police interview, defence counsel said that he had "no issue" with how the trial Crown was proceeding to refresh Lozano's memory. Although a document used to refresh a witness' memory should be read silently by the witness, so that the trier of fact is not privy to its contents, that was not possible in this case because Lozano does not appear to have had the documents before him in California.

[57] Given that this was a judge alone trial, the most efficient way to proceed was the one chosen by Crown counsel and the one that seemed sensible to the defence. As the Supreme Court has emphasized, trial judges should use their case management powers to minimize delay and implement more efficient procedures: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 36–39. The trial judge here did so.

[58] In addition, as evidenced by the reasons for judgment, the trial judge was not inappropriately swayed by the procedure used to refresh Lozano's memory. Indeed, given the success that defence counsel achieved in cross-examining Lozano, having him resile from the core elements of what he had testified to in-chief, the trial judge acquitted the appellant on two of the three S.L. counts. The only count on which the appellant was convicted arose from S.L.'s evidence and not from anything that Lozano said.

[59] In light of the logistics involved, the consent of counsel, the hesitance of the witness, and the fact that this was a judge alone trial, I see no prejudice resulting from the failure to follow the proper procedure for refreshing Lozano's memory. The trial judge managed this issue in a sensible way. No unfairness resulted.

(iv) The Comments About the Induced Statement

[60] The appellant maintains that the trial judge erred by: (a) allowing the Crown to effectively give evidence about the "agreement" that had been made between the Crown Attorney and Lozano; (b) commenting on that agreement; and (c) providing Lozano with a roadmap that is said to have encouraged Lozano to deliver his "lines". I disagree.

[61] The Crown provided appropriate context in the course of submissions to the trial judge regarding how to address Lozano's testimony. The Crown only commented upon the existence of the agreement because Lozano first expressed concern about being "arrested and charged for all of this". Lozano expressed that he was "sorry" and wanted to be of "more help". He had a question and the trial judge was prepared to hear that question and determine whether it could be answered. It was only at that point that Lozano said he was worried about being charged. The Crown then explained to the court that Lozano had given an "induced statement" and had been promised that he would not be prosecuted if he told the truth.

[62] The appellant maintains that by saying that Lozano had promised to tell the truth in exchange for a promise not to prosecute him, the trial Crown inappropriately vouched for Lozano's "story". I disagree with that suggestion.

[63] Although this might have been a problematic statement if made before a jury, this was a judge alone trial. In challenging circumstances, with a witness testifying from afar and on issues that could incriminate him, the Crown was simply providing the trial judge with the information he needed to exercise his trial management powers. In order to understand how to proceed with the hesitant witness, the trial judge first needed to know what the problem was and the attendant risk to the witness. In the circumstances of this case, I see no difficulty with what the trial Crown said. It was accurate on the key point. Lozano had provided an induced – meaning an involuntary – statement and the Crown could not use that evidence to incriminate him.

[64] Although the Crown mistakenly told the court that the agreement was between the Crown and Lozano – when in fact it was between the police and Lozano – she was correct that Lozano had provided an induced statement.

[65] As previously explained, Lozano expressed concern over whether the agreement was binding, to which the trial judge responded that it was "likely as good as gold". Later the trial judge said that Lozano could likely take it "to the bank". The appellant now claims that the effect of the trial judge's statement was to say to the appellant, with the force of "judicial authority": "deliver your lines and you won't be prosecuted. Don't deliver your lines and you will." The appellant says that the trial Crown supplied the lines. This is said to have prejudiced the appellant's right to a fair trial. I disagree.

[66] In an effort to assuage Lozano's concerns, and move the trial along, the trial judge simply said that nothing Lozano said could be used against him. That was a legally and factually correct statement. The trial judge's comments simply acknowledged the involuntary nature of the statement and evidence.

[67] Moreover, the fact of the inducement was never going to be a secret to the trial judge because the defence used it in cross-examining Lozano. Defence counsel highlighted the fact that Lozano believed that as long as he "cooperated" he would not get into trouble. In his closing submissions, defence counsel argued that the inducement, combined with the fact that Lozano was on parole, left Lozano thinking that he should cooperate with the police. In other words, the defence used the induced statement as a way of attempting to shake the trial judge's confidence in Lozano's evidence. As it turned out, that strategy resulted in two acquittals.

(v) Conclusion

[68] I see no error, unfairness or prejudice arising from the manner in which Lozano's evidence was elicited.

(c) The Lost Evidence Claim

[69] The appellant maintains that the trial judge erred by failing to consider the impact of the appellant's lost 2005 videotape and Fildey's audiotape on the burden of proof. Although counsel raised the potential for a lost evidence application on the eve of trial, his request to adjourn was denied and no such application was brought.

[70] In his closing submissions, though, counsel raised the effect of the absence of a video recording of the appellant's statement to the police. Counsel emphasized that the trial judge was at a disadvantage because he did not have the ability to see the appellant's emotional reaction to what she was telling the police about having been sexually assaulted by P.J. The appellant maintains that the trial judge did not consider the impact of that lost evidence on the result.

[71] I would reject the appellant's position for three reasons.

[72] First, the trial judge is presumed to have understood the burden of proof and that a reasonable doubt could arise from the absence of evidence: R. v. Morrissey, 22 O.R. (3d) 514 (C.A.), at paras. 27–30. There is nothing in his reasons to suggest that he misunderstood this concept. There is no requirement that the trial judge discuss each piece of evidence on any given point: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 32, 43–45, 64; R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250, at paras. 80–81.

[73] Second, the police officer who took the appellant's statement testified and the audio of the interview was played in full. The appellant chose not to ask the officer any questions about her demeanour during the interview. That officer could have filled any potential gaps in the evidence that may have assisted in sorting out the demeanour question, yet the defence chose not to inquire. The failure to ask the officer those questions suggests that the appellant might not have been emoting during the police interview in a way that would be of assistance to her when assessing her version of events.

[74] Finally, demeanour evidence has taken on a lesser role in recent years. It is merely one factor to be considered in assessing credibility and not to be given undue weight: R. v. Rhayel, 2015 ONCA 377 at paras. 81–89. Indeed, juries are commonly instructed to this effect.

[75] As for the lost audio from the Fildey interview, it was even more benign. As will be discussed shortly, Fildey's lost audio statement actually enured to the appellant's benefit because it led to the admission of Fildey's hearsay statement for the truth of its contents. Given Fildey's hostility toward the appellant by the time of trial, the admission of that statement meant that his evidence got before the court in circumstances where it would not have otherwise been available.

[76] The trial judge did not err in failing to mention the appellant's lost video statement or Fildey's lost audio statement.

(d) Ineffective Assistance of Counsel Claim

(i) Overview

[77] The appellant claims that his trial counsel provided her with ineffective assistance. She says that counsel's substandard performance is demonstrated in five distinct ways:

(a) the failure to cogently object to the trial judge presiding over the trial;

(b) the failure to object to how Lozano's evidence was handled;

(c) the failure to bring a s. 7 lost evidence motion;

(d) the failure to show how Lozano's evidence was tainted by a leading police statement; and

(e) the failure to lead evidence relating to the size of the appellant's bed.

[78] I will first address the legal principles involved with an ineffective assistance of counsel claim and then move on to consider each of the appellant's five criticisms of trial counsel's performance.

(ii) The Appellant's Burden on an Ineffective Assistance Claim

[79] The appellant must meet a significant threshold in attempting to show that trial counsel was ineffective. She must establish three things:

(a) the facts on which the claim is based;

(b) that the representation was actually incompetent; and

(c) that the representation resulted in a miscarriage of justice, either by virtue of an unreliable verdict or an unfair trial.

[80] Counsel's conduct is to be considered in light of the circumstances operating at the time that decisions were made. Deference is owed to counsel's performance and there is a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance": R. v. B.(G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27; R. v. L.H.E., 2018 ONCA 362, at paras. 6–7.

[81] Where a miscarriage of justice is said to lie in an unreliable verdict, the appellant must show that "there is a reasonable probability that the verdict would have been different" had the appellant received effective assistance: R. v. Cubilan, 2018 ONCA 811, at para. 8; R. v. Archer, 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 120. Where an unfair trial is alleged, the appellant must show that he or she was deprived of a fair trial.

[82] As a general rule, caution must be applied when it comes to allegations of ineffective assistance. Such claims are "easily made" and convictions would be "rendered all too ephemeral if they could be set aside upon the discovery of some deficiency in counsel's defence of an accused": R. v. Joanisse, 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 58. It is not a time for Monday morning quarterbacking: R. v. G.(D.M.), 2011 ONCA 343, at para. 107; R. v. B.(G.D.), at para. 27.

(iii) Alleged Failure to Address Reasonable Apprehension of Bias

[83] I have previously found that there was no reasonable apprehension of bias. Accordingly, trial counsel cannot have been ineffective in failing to ask the trial judge to recuse himself. Nor can the failure to ask for recusal have resulted in a miscarriage of justice.

[84] Moreover, as previously discussed, the only reason to have the trial judge recuse himself was if Fildey were to testify. The appellant correctly observes that, from time-to-time, trial counsel expressed different views on whether he would be calling Fildey to testify.

[85] There is no reason to explore the history of that matter because, as it turned out, Fildey did not testify because he was hostile to the defence. The best evidence of Fildey's hostility is found at the end of the Crown's case. It is at that point that trial counsel asked that the trial judge declare a mistrial because the defence was going to call Fildey. In a commendable exercise of trial management powers, the trial judge refused the mistrial and said that he would first hear from the witness so that he could assess any prejudice to the appellant's fair trial interests. Fildey was brought to court, trial counsel met with him and then announced that he would not be calling Fildey to testify.

[86] The fact that counsel's position evolved with respect to Fildey is neither here nor there. If Fildey was not testifying, there was no basis for a recusal. Fildey was not testifying because he would not have helped the defence. There was simply no factual basis upon which to seek the trial judge's recusal.

(iv) Alleged Failure to Object to Lozano's Evidence

[87] The appellant's second suggestion, that trial counsel fell below the standard of reasonable professional assistance because he failed to object to the manner in which Lozano's evidence was elicited, cannot succeed. As before, trial counsel did not object because, in light of the circumstances, it made sense how the trial Crown proceeded to refresh Lozano's memory.

[88] As well, the fact of the induced agreement was used by the defence as a strategy to attempt to shake the trial judge's confidence in Lozano's evidence. Although the appellant may have rethought that strategy since the convictions were registered, that does not mean that the strategy reflects incompetence. To the contrary, it was a coherent approach and, as previously explained, one that appears to have contributed to two acquittals.

(v) Alleged Failure to Bring Lost Evidence Application

[89] The appellant says that her trial counsel was incompetent because he attempted to argue a Charter motion in his closing submissions, rather than file an application for Charter relief. She says that if he had actually brought a motion, the trial judge would have been in a position to consider the effect of the appellant's lost video statement and Fildey's lost audio statement on the trial. Had the trial judge factored a Charter breach into account in his assessment of the evidence, the appellant says that the result might well have been different.

[90] I disagree that counsel fell below the standard of reasonable professional assistance when he chose not to bring the lost evidence application. No Charter application was necessary. The absence of a motion did not deprive counsel of the ability to make the arguments he made. The fact is that the absence of the appellant's video statement was not the critical piece of evidence that the appellant makes it out to be. Demeanour evidence was available both from the audio portion that remained, and, if asked, from the interviewing officer. As explained above, demeanour evidence is merely one factor among many on which to assess credibility.

[91] As for the lost audio statement from Fildey's interview, far from behaving incompetently, counsel was able to rely upon the lost statement to extract the Crown's consent to permit Fildey's hearsay statement to go in for the truth of its contents. But for counsel's actions, there would have been no evidence from Fildey because he was hostile to the appellant by the time of trial.

(vi) Alleged Ineffective Approach to Lozano's Leading Police Interview

[92] Next, the appellant claims that trial counsel was ineffective by failing to elicit evidence regarding the leading nature of the Lozano police interview. I would reject that argument.

[93] Trial counsel attempted to cross-examine Lozano on the fact that he simply went along with everything the police officer suggested because he did not wish to get in trouble. The fact that Lozano rejected that suggestion was beyond counsel's control. Even so, counsel got Lozano to repeatedly acknowledge that the only reason he said that it was S.L. that he saw masturbating on the bed, was that the police had suggested that to him. This was an effective cross-examination and one that resulted in two acquittals.

[94] As well, there is no reasonable probability that trial counsel's conduct affected the reliability of the conviction on the remaining count involving S.L. The trial judge did not rely on Lozano's evidence to convict; rather, the trial judge believed S.L.'s evidence on the point that she was asked by the appellant to masturbate: "I have no difficulty accepting her evidence, as I have reviewed it."

(vii) Alleged Failure to Elicit Evidence of the Appellant's Bed

[95] Finally, the appellant claims that trial counsel was ineffective in failing to utilize evidence about the size her bed at the time of the alleged incident involving S.L. The fresh evidence includes information about the size of the appellant's bed at her parents' home in 2008. It is said that she only had a single bed, the standard size of a single being about 38 inches wide.

[96] Given the appellant's size in 2008, she now argues that it would have been impossible for the masturbating to occur as S.L. described, with both S.L. and the appellant lying on the bed side-by-side. The appellant filed a picture of her lying on a single bed, showing that she takes up most of the surface. It is admitted the picture is of another bed, not the bed that the appellant had in 2008.

[97] It is said that the bed evidence would have contradicted S.L.'s account. Indeed, the appellant argues that it would have been impossible for the offence to have occurred as described by S.L. on a single bed.

[98] The respondent does not accept that the appellant had a single bed in 2008. The respondent asks the court to focus upon the picture in the materials of the appellant's actual bed at the time of the S.L. incident. The respondent points out that a bedspread with squares on it covers the bed. The appellant was cross-examined for purposes of the appeal on that bedspread. She admitted that the squares are about five inches in width. The respondent maintains that when the squares are counted, the picture demonstrates that the appellant's bed is actually about 50 inches wide.

[99] Leaving to one side whether this constitutes permissible fresh evidence, I do not agree with the appellant that the bed evidence would have exonerated the appellant. To the contrary, bearing in mind the picture that is available of the appellant's actual bed at the time, it may have served to support S.L.'s evidence that the appellant had a double or queen size bed. The evidence is far from dispositive of innocence and the failure to use it does not suggest incompetence. Counsel had a clear and decisive strategy for how he was going to test S.L.'s evidence. He was largely successful in that regard. There was no miscarriage of justice.

[100] I would also reject this ground of appeal.

(e) Alleged Errors in the Reasons for Judgment

[101] The appellant argues that the reasons for judgment contain three broad errors. I will review them in the order that the appellant addressed them in her factum.

[102] Reasons for judgment fulfill specific purposes. They address why a case was decided a certain way, provide public accountability and permit effective appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 4, 55. In considering the sufficiency of reasons as they relate to credibility findings, appellate courts must keep in mind that it is often difficult to express such findings. While significant inconsistencies in a witness' evidence should be addressed, there is no requirement that trial judges address each and every inconsistency. Deference is owed to trial judge's credibility findings unless they cannot be supported on a "reasonable view of the evidence": R. v. Burke, [1995] 1 S.C.R. 474, at para. 7. See also: R. v. Gagnon, [2002] 1 S.C.R. 621, at paras. 10–12, 19–20; R.E.M., at paras. 32, 54–55; Doodnaught, at paras 76–81.

[103] First, the appellant claims that the trial judge failed to consider the inconsistency between Fildey's hearsay statement (that he learned about the sexual activity from the appellant) and P.J.'s evidence (that he told Fildey about the activity). The appellant says that the trial judge had an obligation to address and resolve that inconsistency.

[104] For the reasons previously given, I disagree that the Fildey statement and P.J. testimony cannot co-exist. They are not inherently inconsistent. The trial judge did not error in failing to reconcile what was not even an inconsistency.

[105] Second, the appellant argues that the trial judge gave uneven scrutiny to P.J.'s and the appellant's evidence. Specifically, the appellant argues that the trial judge noted that P.J.'s evidence was "replete with inconsistencies", particularly when compared with what he had previously told others. The trial judge reviewed many of those inconsistencies.

[106] The appellant argues that, without resolving P.J.'s credibility, the trial judge went on to review the veracity of the appellant's evidence (her 2005 statement) and provided numerous reasons why he concluded that she did not tell the police the truth about having been sexually assaulted by P.J. The trial judge expressed that he was "troubled by a number of matters", including that: (a) the appellant did not take steps to protect herself by locking her bedroom door; (b) she did not tell her husband or seek to have P.J. removed from the house; (c) she purchased gifts and alcohol for P.J. in the face of him having sexually assaulted her; and (d) she said that she did not want P.J. charged.

[107] The appellant says that a number of the trial judge's reasons for rejecting her evidence, such as the provision of gifts and alcohol, required the trial judge to have accepted P.J.'s evidence. Yet the trial judge did not resolve P.J.'s credibility before doing so.

[108] The trial judge was not required to specifically address every credibility issue in the trial. Further, the "object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision": R.E.M., at paras 17–18 (emphasis in original). It is clear that, despite the fact that he acknowledged the weaknesses in P.J.'s evidence, the trial judge believed many of the things that P.J. said. The trial judge was not required to spell out each of those findings, nor was he required to spell out the findings he made in a particular order.

[109] It is important to recall the context for the appellant's evidence. Much of the sexual conduct occurred while P.J. was fifteen years of age. Not only could P.J. not consent to the sexual activity at that age, but the appellant stood in a position of trust toward him. Having acknowledged the sexual activity, the appellant's only defence was that P.J. had raped her. Despite the inconsistencies in P.J.'s evidence, the fact is that P.J. said that there was sexual intercourse and, based on the appellant's evidence, that fact was indisputably true.

[110] I do not agree that the trial judge gave uneven scrutiny to the evidence at trial. As this court has repeatedly held, this argument is one that is difficult to make successfully, and for good reason: R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39; R. v. Chanmany, 2016 ONCA 576, 338 C.C.C. (3d) 578, at paras. 26–28. Credibility findings are within the province of the trial judge.

[111] The trial judge acknowledged the frailties in P.J.'s evidence, but focused in on the issue in dispute: did he have a reasonable doubt arising from the suggestion that P.J. sexually assaulted the appellant? On that point, there was little to assess in P.J.'s evidence. He was unshaken from the core allegations, and the trial judge had earlier listed the frailties that, on an objective view, went to peripheral matters. The appellant's evidence could, of course, undermine the path to conviction by being believed or by leaving the trial judge with a reasonable doubt. Considered in its proper context, it is without surprise that the trial judge focused upon that evidence.

[112] Finally, the appellant argues that the trial judge erroneously relied upon stereotypes about sexual assault victims in rejecting the appellant's evidence. For instance, the appellant's evidence was rejected on the basis that she did not lock her door after the first and second alleged sexual assaults, nor did she tell anyone about the assaults. Nor did she want P.J. charged. The appellant argues that every sexual assault victim is unique and experiences the crime in a different way. The trial judge erred by applying stereotypical thinking to the appellant's version of events.

[113] Although I agree with the appellant's suggestion that stereotypes must be avoided when it comes to considering how sexual assault victims will respond to the crime, that submission again loses its force when considered in the context of this case. The trial judge reached his conclusion, not on the basis of stereotypes, but on the evidence presented at trial, its internal and external coherence, and common sense inferences.

[114] The trial judge did not resort to stereotypes, but to the actual relationship between the appellant and P.J., over whom she stood in a position of trust. She was in control of the home where he lived. She controlled who came into the home and who was allowed to live there. She did not merely stay silent after the alleged sexual assaults on her, the evidence was that she continued to actively seek out P.J., and provided him with alcohol. In contrast, P.J. was a troubled teenager who was a third of the appellant's weight.

[115] In the somewhat unique circumstances of this case, the trial judge's impugned comments, such as the appellant's failure to lock her door or tell anyone about the purported crimes being perpetrated upon her, made sense in light of her position of trust as a foster parent to her alleged repeated perpetrator.

[116] I would not accede to this ground of appeal.

IV. CONCLUSION

[117] The appellant received a fair trial. She received competent representation. There was no miscarriage of justice. The reasons for judgment do not contain the errors alleged.

[118] I would dismiss the appeal.

Released: November 29, 2018

"Fairburn J.A." "I agree. David Watt J.A." "I agree. K. van Rensburg J.A."