Her Majesty the Queen v. P. (T.) [Indexed as: R. v. P. (T.)]

59 O.R. (3d) 577

[2002] O.J. No. 2142

Docket No. C31316

Court of Appeal for Ontario

Doherty, Sharpe and Simmons JJ.A.

May 30, 2002

Criminal law -- Trial -- Counsel -- Competence -- Fresh evidence adduced on appeal demonstrating that trial counsel failing to obtain or review videotaped statement to police, failing to obtain transcript of complainant's evidence at preliminary hearing until after conclusion of cross-examination and erring in appreciation of what constituted defence to charge of sexual interference -- Trial counsel inaccurately recalling complainant's preliminary hearing evidence as being that touching occurred very briefly on single occasion -- Trial counsel incorrectly believing that touching too brief to prove offence -- Nature of touching not duration that determines whether offence proven -- Complainant testifying that touching took place more than once -- Accused demonstrating that trial counsel's conduct fell below reasonable standards of competence -- Significant contradictions in complainant's videotaped statement to police and evidence at the preliminary hearing not properly explored during cross-examination -- Contradictions could have affected trial judge's assessment of reliability and credibility of complainant -- Fresh evidence proving miscarriage of justice -- New trial ordered.

The accused was charged with sexual interference. The Crown's case at trial consisted solely of the evidence of the ten-year- old complainant, the son of the accused's former common-law spouse. The complainant claimed that the accused sexually abused him on six occasions and that each incident lasted for about a minute. Defence counsel cross-examined the complainant without a transcript of the preliminary inquiry. He incorrectly recalled the complainant's evidence at the preliminary inquiry, and was under the impression that the complainant had claimed that the accused touched him only once, for three seconds. Defence counsel believed that if the touching was so brief it would not support a conviction for sexual interference. Actually, the complainant had stated at the preliminary inquiry that the touching occurred on about five occasions for a few seconds each time. At trial, the complainant acknowledged in cross-examination that at the preliminary inquiry he estimated the length of time he was touched as b eing three seconds, but disagreed with trial counsel's suggestion that he said it happened only once. He explained that the three-second time estimate he gave at the preliminary inquiry related to another occasion that he had forgotten at trial. Defence counsel closed his cross-examination and commenced calling the defence before obtaining a copy of the transcript of the preliminary inquiry. When he obtained the transcript, he sought permission to file it in order to demonstrate contradictions in the complainant's testimony. The trial judge did not permit him to do so. The accused was convicted. He appealed, arguing that he was denied the effective assistance of counsel at trial.

Held, the appeal should be allowed.

In order to succeed in a claim of ineffective assistance of counsel at trial, an appellant must demonstrate, first, that counsel's acts or omissions constitute incompetence, and second, that a miscarriage of justice resulted.

Trial counsel was wrong in his assumption that a single three-second touch would not support a conviction for sexual interference. It is the nature of the touching that determines whether the offence is proven, not its duration. He not only misapprehended the nature and significance of the complainant's evidence at the preliminary inquiry, he proceeded to trial with a defence strategy focused on the complainant's preliminary inquiry evidence without requesting an adjournment so that he could get a transcript. He did not appreciate the necessity of having the transcript in hand in order to challenge the complainant's credibility based on his evidence at the preliminary inquiry if that became necessary. He thought that inconsistencies with a witness' trial evidence could be established by filing the transcript of the preliminary inquiry once it was available or by recalling the witness to continue the cross-examination once the transcript was available. His understanding of how to cross-examine on a prior inconsistent statement was clearly wrong. Because of his misguided focus on the one-time three-second touch, he abandoned preparation to cross-examine the complainant on his videotaped statement to the police. He did not obtain or review that statement. Given the accumulation of serious errors, trial counsel's conduct fell below a standard of reasonable competence. He failed to pursue available avenues of cross-examination as a result of his incompetence.

The apparent dissimilarities between the complainant's recollection of recent incidents disclosed in his videotaped statement, his evidence at the preliminary inquiry, and his evidence at trial were significant, and could have affected the trial judge's assessment of the reliability and credibility of the complainant's evidence at trial. The absence of cross- examination concerning the complainant's videotaped statement and relevant portions of his evidence at the preliminary inquiry left this trial evidence concerning the touching essentially unchallenged in a manner that undermined the reliability of the verdict.

APPEAL from a judgment of McCartney J., convicting the appellant of sexual interference.

Cases referred to R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520, 81 Alta. L.R. (3d) 1, 184 D.L.R. (4th) 577, 253 N.R. 201, [2000] 8 W.W.R. 193, 143 C.C.C. (3d) 289, 32 C.R. (5th) 207; R. v. C. (M.H.), 1991 94 (SCC), [1991] 1 S.C.R. 763, 123 N.R. 63, 63 C.C.C. (3d) 385, 4 C.R. (4th) 1; R. v. G. (A.) (1998), 1998 7118 (ON CA), 123 C.C.C. (3d) 350 (Ont. C.A.); R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35, 44 C.R. (4th) 364 (Ont. C.A.); R. v. Stolar, 1988 65 (SCC), [1988] 1 S.C.R. 480, 52 Man. R. (2d) 46, 82 N.R. 280, [1988] 3 W.W.R. 193, 50 C.R.R. 397n, 40 C.C.C. (3d) 1, 62 C.R. (3d) 313 (sub nom. R. v. Nielson and Stolar)

Timothy E. Breen, for appellant. Gillian Roberts, for respondent.

The judgment of the court was delivered by

[1] SIMMONS J.A.: -- The central issue on this appeal is whether trial counsel's performance fell below a standard of reasonable competence and, if it did, whether trial counsel's incompetence resulted in a miscarriage of justice.

[2] The appellant was convicted of sexual interference by McCartney J. on November 16, 1998. He was sentenced to 89 days' imprisonment, to be served intermittently on December 18, 1998. He appeals against conviction and sentence.

[3] Three of the appellant's four grounds of appeal against conviction arise from an application to introduce fresh evidence. As I have concluded that the appellant's claim that he was denied the effective assistance of counsel at trial is dispositive of the appeal, I will restrict my review of the fresh evidence application to that issue and it is accordingly unnecessary that I deal with the remaining ground of appeal against conviction, [^1] or with the sentence appeal.

[4] The appellant's claim that he was denied the effective assistance of counsel at trial rests primarily on an assertion that trial counsel (not Mr. Breen) based the defence on a mistaken understanding of the complainant's evidence at the preliminary inquiry, and that trial counsel proceeded to trial without obtaining necessary disclosure materials, without reviewing the complainant's videotaped statement to the police, and without a transcript of the preliminary inquiry.

[5] For the reasons that follow, I would allow the appeal and order a new trial on the basis that the appellant was denied effective assistance from counsel at trial.

The Evidence at Trial

[6] The Crown's case at trial consisted solely of the evidence of the ten-year-old complainant, Steven H., the son of the appellant's former common-law spouse, Jennifer H. Steven testified that he was around three years old in 1990 when his mother, Jennifer H., began living in a common-law relationship with the appellant. The couple had a daughter together, Christen P., born in February 1993. Although the couple broke up on several occasions, their relationship did not finally end until 1996.

[7] Steven claimed that the appellant sexually abused him on six occasions when he was between the ages of three-and-a-half and eight years old. He described six specific incidents of touching in his examination-in-chief, proceeding in chronological order. He said that on each occasion, the appellant pulled down his pants and touched his penis for about a minute in a rubbing motion.

[8] Steven said the first incident happened when he was three-and-a-half years old. He gave his age, or a reference point for establishing his age, for each of the other five incidents. Steven said that the last incident occurred just after his eighth birthday. He described where he was in the house and what he was doing for each of the six incidents. For some incidents, he described what he and the appellant were wearing.

[9] Steven acknowledged in cross-examination that at the preliminary inquiry he estimated the length of time he was touched as being three seconds, but disagreed with trial counsel's suggestion that he said it happened only once. He explained that the three-second time estimate he gave at the preliminary inquiry related to another occasion that he had forgotten at trial. Steven also disagreed with trial counsel's suggestion that, at the preliminary inquiry, he said that he was four-and-a-half when the first incident happened.

[10] Steven confirmed that a friend of his mother caught Matthew S. sexually assaulting Christen in the basement of their home in July 1996. However, he denied that Matthew S. had ever sexually assaulted him and he denied telling anyone that Matthew S. had sexually assaulted him.

[11] The defence called three witnesses at trial in addition to the appellant. The first two witnesses claimed that Jennifer H. and/or Steven had told them that Matthew S. sexually abused Steven. The third witness, Jennifer H., denied that Steven told her, or that she told anyone else, that Matthew S. sexually abused him.

[12] Jennifer H. testified that the appellant threatened to kill her both before and after they separated and that the appellant was convicted of intimidation arising from threatening telephone messages he left on her answering machine. She could not recall precisely when the appellant had stopped paying child support, but thought it was after the allegations of sexual abuse. She denied having any continuing involvement with drugs, arranging for any of her friends to approach the appellant, or influencing Steven to make false allegations against him.

[13] The appellant stated that his relationship with Jennifer H. ended in approximately January of 1997. He told Jennifer H., at that time, that he would not pay her any child support until she got out of drugs. He said that he also threatened to pick up their daughter and not return her, and that Jennifer H. responded that she would have him put in jail if he did anything like that.

[14] The appellant claimed that Jennifer H. was involved in cocaine trafficking during their relationship and that she had a Satan's Choice member threaten him following their separation. He said that Jennifer H. knew the main way she could hurt him was to keep him from seeing his daughter. The appellant also said that Steven held a grudge against him because he did not take Steven when he picked up Christen for access visits, and that Steven told him that the real perpetrator of the sexual abuse was Matthew S.

[15] Trial counsel did not have a copy of the transcript of the preliminary inquiry when he cross-examined Steven on May 6, 1998. However, he closed his cross-examination and commenced calling the defence. When the trial resumed on July 10, 1998, trial counsel asked to file the transcript in order to demonstrate contradictions in Steven's testimony. Specifically, he maintained that Steven had testified categorically at the preliminary inquiry that the duration of any contact was three seconds. Ultimately, trial counsel requested an adjournment so that Steven could be recalled. The trial judge found that Steven acknowledged that he had referred to touching of three seconds duration at the preliminary inquiry but that he had provided an explanation. He concluded that trial counsel would not have accomplished anything further had he had the transcript of the preliminary inquiry available. He accordingly dismissed the motion.

[16] The trial judge accepted Jennifer H.'s evidence that she had no desire to have further contact with the appellant at the end of their relationship and that she was afraid of him. He rejected the evidence of the two defence witnesses who testified about statements Jennifer H. or Steven had made to them and rejected the conspiracy theory. He commented that "Steven was vigorously cross-examined over testimony given by him at the preliminary inquiry" relating to the three-second touch, noting that Steven "was vehement in his testimony at trial that he may have done it for three seconds on one occasion but that on others it was up to a minute", and that Steven "absolutely denied that he had ever said that he was only fondled once". The trial judge found that "inconsistencies in [Steven's] testimony as to time and place are quite understandable given his age at the relevant times". He also said:

. . . And in considering the evidence as a whole, while it may be difficult for a child of three or four to remember events with the particularity that Steven testified he remembered them, I have no doubt in believing that a child of eight or eight and a half, which Steven would have been when he complained to his mother about the accused's conduct, and ten years old at the time he testified at this trial, would have any difficulty in recognizing, remembering and recounting any acts of sexual abuse which he had been subjected to since he was five or six years of age, and particularly those more recent acts when he was seven or eight years of age.

Overview of the Fresh Evidence Application Relating to the Appellant's Claim that he was Denied the Effective Assistance of Counsel at Trial

[17] The fresh evidence application includes a variety of transcripts, file notes, police occurrence reports and affidavits. Some of the proposed fresh evidence is inadmissible, as it does not comply with the general rules for admissibility of evidence. Much of the proposed fresh evidence lacks the necessary force to found a request for a new trial. The significant portions of the proposed fresh evidence are as follows:

-- a transcript of Steven's videotaped statement to the police made on March 13, 1997

Steven estimated that the appellant had touched him about 30 times commencing when he was three. He described the two incidents he could recall in some detail. He said the first incident happened when he was four. He described where he was in the house, what he was doing and what he was wearing.

Steven said that the second incident happened in July, close to his eighth birthday. The appellant was in Christen's bedroom when Steven went to bed. Steven saw Christen walking out of her bedroom to the washroom with her pants down. The appellant touched Steven when Steven went to Christen's bedroom.

Steven said that the incidents would last for about a minute and that he could not remember any other times.

When asked whether his mother had said anything that he should tell the interviewers, Steven replied"well she was asking me if [the appellant] touched me". He indicated that he disclosed that after his mother asked him whether the appellant had touched him inappropriately.

Steven spoke in some detail at the beginning of his statement about the fact that his mother also knew that the appellant had been touching Christen. He also referred to hearing the appellant tell a girl to call him Jason, and then hearing the girl tell his mother that the appellant had touched her.

-- a transcript of the preliminary inquiry;

Steven described one incident of touching at the preliminary inquiry. He said that he was around four-and-a-half when it first happened and described where he was in the house, what he was doing and what he was wearing.

Steven said the touching occurred on about five occasions. He said he was five and five-and-a-half on two of the other occasions, but could not recall how old he was for the remaining incidents.

When asked in cross-examination how long the appellant would touch him, Steven said a few seconds. Trial counsel timed Steven's subsequent estimate of the duration of the touching at three seconds.

-- a transcript of the cross-examination of trial counsel and a copy of counsel's trial file

Trial counsel explained that he did not have a copy of the transcript of the preliminary inquiry on May 6, 1998 because of a mix-up in the court reporter's office. He reviewed the possibility of seeking an adjournment of the trial with the appellant and obtained instructions to proceed without the transcript. It was trial counsel's view at the time that, if necessary, he could file a copy of the transcript subsequently to prove inconsistencies in Steven's evidence, or, at least have Steven recalled for further cross-examination.

When asked whether he ever felt it necessary to obtain a copy of Steven's videotaped statement to the police for the purpose of cross-examination, trial counsel indicated that he did in the beginning but that once Steven said at the preliminary inquiry that it happened one time for three seconds his concern subsided. Trial counsel said on cross-examination that he had reviewed the detailed notes prepared by the interviewers of Steven's videotaped interview with the police. He also commented that the appellant did not want to spend a lot of money on the defence and cited, as an example, the appellant's instructions not to apply for third party records relating to Steven.

Particulars of the Appellant's Claim that he was Denied the Effective Assistance of Counsel at Trial

[18] The appellant claims that many acts or omissions on the part of trial counsel were incompetent and that trial counsel failed to alert the trial judge to important issues relating to the evidence at trial as a result. The allegations of incompetence that I find significant are as follows:

-- failing to obtain or review Steven's videotaped statement to the police; and

-- proceeding to trial without a transcript of the preliminary inquiry and basing the defence on an inaccurate recollection of Steven's evidence at the preliminary inquiry.

Test for Claim of Ineffective Assistance of Counsel at Trial

[19] In order to succeed in a claim of ineffective assistance of counsel at trial an appellant must demonstrate, first, that counsel's acts or omissions constitute incompetence (the performance component of the test) and, second, that a miscarriage of justice resulted (the prejudice component of the test): R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520, 143 C.C.C. (3d) 289 at para. 26.

[20] The standard to be met in relation to the performance component the test is a reasonableness standard: B. (G.D.) at para 26. In R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35, 44 C.R. (4th) 364 (Ont. C.A.), this court confirmed that the threshold for establishing incompetence is high and that hindsight has no place in the assessment: [^2]

As these references reveal, incompetence is determined by a reasonableness standard measured by reference to counsel's performance in the particular circumstances of the case and from the point in time when counsel made the decisions challenged on appeal. The wisdom of hindsight has no place in this assessment. This approach also recognizes that in many situations counsel will have a wide range of options any or which, if taken, will constitute competent representation. Appellate courts must give deference to the choices made by counsel and the competence assessment must be informed by a presumption in favour of competence.

[21] This court also explained in Joanisse at p. 62 C.C.C. that the prejudice component of the inquiry "examines the nature and seriousness of counsel's errors both from the perspective of the reliability of the verdict and the adjudicative fairness of the process leading to the verdict". Where the alleged incompetence relates to specific decisions made by counsel, the prejudice component of the inquiry is more focused on the effect of the decisions in relation to the reliability of the verdict:

Some claims of incompetence relate to specific decisions made or actions taken by counsel in the course of the defence. These claims do not assert an actual or constructive denial of the assistance of counsel, but instead contend that the assistance given was so deficient that it was ineffective. These claims come down to the assertion that because of counsel's incompetence, the defence was not properly put, or the Crown's case was not properly challenged. In these situations, the effect on the fairness of the trial of counsel's incompetence is measured by reference to the impact of the errors on the reliability of the result . . .

In articulating the test to be applied in cases where the unfairness said to flow from incompetent representation relates to the reliability of the verdict, this court has again looked to Strickland v. Washington [^3] . . . for guidance. O'Connor J. rejected as too low a standard which would require reversal whenever it could be said that counsel's errors had "some conceivable effect on the outcome of the proceeding". She also rejected as too demanding a test which would require that the appellant show on the balance of probabilities that the result was affected by counsel's errors (at pp. 2067-68). She settled on the following at p. 2068:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

. . . I take Justice O'Connor to mean that the appellant must show that, had he received competent legal representation, there is a real probability that the appellant would not have been convicted . . . A reasonable probability lies somewhere between a mere possibility and a likelihood . . . A reasonable probability is established when the reviewing court is satisfied that because of counsel's incompetence, the verdict cannot be taken as a reliable assessment of the appellant's culpability. [^4]

(Emphasis added)

[22] Where an appellant asserts that the incompetence consists of failing to lead prior inconsistent statements of the complainant that were available at trial"admissibility of the statement on appeal [will] turn on whether the impeachment potential [of the statement] is such that it could reasonably, when viewed with the rest of the evidence, be expected to have affected the result": R. v. G. (A.) (1998), 1998 7118 (ON CA), 123 C.C.C. (3d) 350 (Ont. C.A.) at p. 352, citing R. v. Stolar, 1988 65 (SCC), [1988] 1 S.C.R. 480 at p. 486, 40 C.C.C. (3d) 1.

Application to this Case

[23] Although the Crown did not concede that trial counsel's performance fell below a standard of reasonable competence, the thrust of its position was that the appellant failed to link the alleged incompetence to a miscarriage of justice.

[24] I am satisfied that trial counsel failed, through incompetence, to alert the trial judge to important issues relating to Steven's evidence at trial and that that failure undermines the reliability of the verdict.

[25] The main prong of trial counsel's defence strategy was his understanding that Steven testified at the preliminary inquiry that the touching occurred one time for three seconds. Trial counsel was of the view that this evidence would not support a conviction for sexual interference.

[26] Trial counsel's recollection of the evidence from the preliminary inquiry and his opinion that a single three-second touch would not support a conviction for sexual interference were patently wrong. Steven was clear in his evidence at the preliminary inquiry that there were about five incidents of touching. The duration of touching is not determinative of its character.

[27] However, trial counsel not only misapprehended the nature and significance of Steven's evidence at the preliminary inquiry, he proceeded to trial with a defence strategy focused on Steven's preliminary inquiry evidence without requesting an adjournment so that he could get a transcript. Trial counsel's recollection of Steven's testimony at the preliminary inquiry differed substantially from the pre-existing disclosure. A transcript of the preliminary inquiry was accordingly essential to the defence strategy trial counsel had formulated.

[28] Trial counsel did not apparently appreciate the necessity of having the transcript in hand in order to challenge Steven's credibility based on his evidence at the preliminary inquiry if that became necessary. Trial counsel testified that he thought inconsistencies with a witness' trial evidence could be established by filing the transcript of the preliminary inquiry once it was available. That was, in fact, what he attempted to do on July 10, 1998. Alternately, he said he thought he would at least be able to have Steven recalled to continue his cross-examination once the transcript became available. In either event, trial counsel's understanding of how to cross-examine on a prior inconsistent statement was clearly wrong. He made no attempt to seek an adjournment pending the availability of the transcript, or to otherwise preserve his position before completing Steven's cross- examination.

[29] Trial counsel maintained that he would have reviewed the interviewers' notes of Steven's videotaped statement in preparing for Steven's cross-examination and that he would have been prepared to cross-examine on any inconsistencies between Steven's testimony at trial and the notes. However, when asked whether he appreciated the inconsistency between Steven's testimony at trial in which he described six incidents of touching and the two incidents described in a summary of Steven's videotaped statement, the following exchange occurred:

Q. All right. At the time of the trial, did you appreciate the inconsistency between his describing six particular incidents with the inconsistency between that evidence and what's described in the narrative at page 15, the supplementary report?

A. Yes and no. And I hedge on that because each time this person provided any particular evidence to anybody, it was never the same. He never said the same thing twice ever. In my whole experience with this file, be it he's talking to a police officer, whether he's talking to the Crown, whether he was talking to me, whether he was talking to the judge, he never said the same thing twice. Each time it was expanded upon and if he was contradicted, he would say, well, yeah, that's what I said before but this is something different that I haven't told anybody yet. That's how he would conduct himself.

Q. All right. Did you make any effort at trial to contradict [Steven] on his original statement to police?

A. I believe so.

Q. Did you feel that the supplementary report [^5] was a document you could cross-examine him on?

A. No . . . I wouldn't be able to cross-examine him on that. They wouldn't allow it.

Q. Did you ever feel that it would be necessary to obtain a copy of the videotaped statement for purposes of cross- examination?

A. I think I did in the beginning. Once he went on at the prelim stage and said it happened one time for three seconds and then that was basically his only allegation, my concerns had subsided considerably. I presumed that that was going to help end the matter. That coupled with the fact that the Crown had never, ever led any evidence proving sexual interference. Even if they did prove a sexual [sic][^6] touch, that was admitted. There was never an issue as to that, that this child was touched, it was just whether there was any sexual interference or any sexual undertone, and that was never proven in my opinion.

[30] Trial counsel did not, in fact, cross-examine Steven at trial concerning inconsistencies between his trial evidence and his videotaped statement to the police. It is apparent, in my view, that having focused on the one-time three-second touch, trial counsel abandoned preparation to cross-examine on the videotaped statement.

[31] In summary, I find that trial counsel made several major errors in preparing for trial: he misapprehended the nature and legal significance of Steven's evidence at the preliminary inquiry; he formulated a one-pronged defence strategy based solely on his recollection of Steven's evidence at the preliminary inquiry without verifying his recollection; he proceeded to trial without a transcript of the preliminary inquiry in circumstances where a transcript was essential; and having formulated an ill-founded one-pronged defence strategy, he abandoned preparation for alternate avenues of cross- examination. Given the accumulation of serious errors, I conclude that trial counsel's conduct fell below a standard of reasonable competence and that trial counsel failed to pursue available avenues of cross-examination as a result of his incompetence.

[32] Turning to the issue of prejudice, Crown counsel maintains that counsel's conduct, even if incompetent could not reasonably have affected the verdict for three reasons. First, the Crown relies on trial counsel's statement that he had reviewed the interviewers' detailed notes of Steven's videotaped statement. The Crown submits that trial counsel could have cross-examined Steven on the basis of those notes had he chosen to do so. Second, the Crown contends that trial counsel successfully identified various inconsistencies and weaknesses in Steven's evidence in examination-in-chief and brought out various circumstances suggesting hostility between Jennifer H. and Steven, and the appellant. Third, the Crown submits that the trial judge heard an application to re-open cross-examination, and ultimately dismissed it, finding that counsel could not have accomplished anything further with the benefit of the transcript.

[33] I reject the Crown's submissions. First, I have already concluded that trial counsel abandoned preparation to cross- examine on the videotaped statement.

[34] Second, the trial judge found that inconsistencies in Steven's evidence were successfully raised but that they were inconsequential. Steven explained the discrepancy in his evidence at the preliminary hearing and his trial testimony concerning the duration of the touching. The trial judge found that the discrepancy in Steven's evidence at the preliminary inquiry and his trial evidence concerning when the abuse began and the inconsistency in his trial evidence concerning where one of the incidents occurred were understandable in light of Steven's age. The trial judge's conclusion is not surprising in light of the nature of the matters raised. Moreover, Steven's accurate denial of trial counsel's erroneous suggestion that Steven had said, at the preliminary inquiry, that there was only one incident of touching may well have added credence to Steven's explanation of his evidence about the three-second touch.

[35] Finally, in my view, the trial judge's ruling on the motion to re-open Steven's cross-examination was premised on the suggestion that trial counsel put to Steven, namely that the appellant touched him one time for three seconds. The trial judge's finding that trial counsel would not have done any better with the benefit of the transcript was based on Steven's response to that particular question. It was not for the trial judge, at that point, to speculate on the questions counsel might have asked had trial counsel come to the trial with the transcript.

[36] The question remains, however, whether inconsistencies between Steven's videotaped statement to police, relevant portions of his evidence at the preliminary inquiry, and his evidence at trial have sufficient potential for impeachment that they could reasonably have affected the verdict. Although the evidence in these statements is not as compelling as evidence of out-of-court statements in which the abuse is denied, [^7] I conclude that there is sufficient potential for impeachment to undermine the reliability of the verdict.

[37] Steven recounted the specifics of two incidents of touching in his videotaped statement to police, one that occurred when he was four and one that occurred just after his eighth birthday. The incident that he said occurred just after his eighth birthday involved Christen, albeit peripherally, and bears no similarity to any of the recent incidents Steven described at trial. Steven estimated that the appellant touched him about thirty times in his videotaped statement to police, but said explicitly that he could not recall the specifics of any other incidents aside from the two he described.

[38] At the preliminary inquiry, after he described the first incident, which he said occurred when he was four-and-a-half, Steven was asked simply if he could recall how old he was when the other incidents occurred. While he remembered incidents occurring when he was five and five-and-a-half, Steven could not recall his age for any other incidents.

[39] At trial, Steven gave relatively detailed descriptions of six specific incidents of touching. He stated his age for all of the incidents, with the exception of the fourth, which he said happened just before Christen was born. As for the recent incidents, Steven testified that the fifth incident happened when he was seven, and that the sixth incident happened just after his eighth birthday. He said that Christen was asleep at the time the fifth and sixth incidents occurred.

[40] The trial judge appears to have been somewhat skeptical about the reliability of Steven's detailed recollection of the early incidents of touching, but he found Steven's account of the recent incidents of abuse to be both reliable and credible. The trial judge was not, however, aware that Steven was apparently unable to recall these incidents when he gave his videotaped statement to the police, or that Steven's prior description of one recent incident was significantly different from anything he described at trial.

[41] I find that the apparent dissimilarities between Steven's recollection of recent incidents disclosed in his videotaped statement, his evidence at the preliminary inquiry, and his evidence at trial are significant, and that they could have affected the trial judge's assessment of the reliability and credibility of Steven's evidence at trial. I conclude that the absence of cross-examination concerning Steven's videotaped statement and relevant portions of his evidence at the preliminary inquiry left his trial evidence concerning the touching essentially unchallenged in a manner that undermines the reliability of the verdict.

Disposition

[42] For the reasons given, I would allow the appeal, set aside the conviction, and order a new trial.

Appeal allowed.

Notes

[^1]: The only ground of appeal against conviction that does not arise from the fresh evidence application is a cliam that interventions by the trial judge and his reasons for judgment reflect misdirection as to the onus and standard of proof. There is no merit in this ground of appeal. The impugned interventions were questions the trial judge asked in an effort to clarify the appellant's testimony concerning a defence that he raised. The trial judge did not place a persuasive burden on the appellant by clarifying the appellant's evidence and subsequently rejecting it.

[^2]: At p. 61 C.C.C.

[^3]: 104 S. Ct. (2052) (1984).

[^4]: At pp. 63-64 C.C.C.

[^5]: The supplementary report is police summary of Steven's videotaped statement prepared by the officer who was present at the interview. A C.A.S. worker was also present. The supplementary report is distinct from the interviewers' handwritten notes of the interview.

[^6]: It appears counsel misspoke at this point. The defence conceded throughout that the appellant had touched Steven's penis as a child for the purpose of cleaning it when he was being toilet trained. The sexual aspect of any touching was not conceded.

[^7]: See, for example, G. (A.), supra, and R. v. C. (M.H.), 1991 94 (SCC), [1991] 1 S.C.R. 763, 63 C.C.C. (3d) 385.