Her Majesty the Queen v. Ronald Wayne Archer, 2005 ONCA 36444

DATE: 20051013

DOCKET: C35653, C35800

COURT OF APPEAL FOR ONTARIO

DOHERTY, WEILER and JURIANSZ JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Morris Manning, Q.C. and Jonathan T. Feasby

Respondent

for the appellant

• and -

RONALD WAYNE ARCHER

Howard Leibovich and Kenneth Campbell for the respondent

Appellant

Heard: June 6 and 17, 2005

On appeal by the appellant from the convictions entered by Justice Ronald C. Sills of the Superior Court of Justice, sitting with a jury, on October 28, 2000; and appeals by the appellant and the Crown from the sentence imposed by Justice Ronald C. Sills on January 17, 2001.

DOHERTY J.A.:

I

Overview

[1] The appellant was convicted by a jury on four counts:

• sexual assault (count one);
• sexual exploitation (count two);
• sexual assault with a weapon (count three); and
• uttering death threats (count four).

[2] He received concurrent sentences totalling four years and a ten year weapons prohibition.

[3] All of the charges involved the same complainant, M.S.. The Crown alleged that the appellant, a public school teacher, sexually abused M.S. for almost five years beginning in the late spring of 1993 when M.S. was in the appellant’s grade six class and extending through to February 1998. Counts three and four, the allegations involving the death threat and a weapon, arose out of a single incident that M.S. testified occurred in the summer of 1993 at the appellant’s cottage in Tobermory.

[4] The appellant appeals his convictions. He alleges numerous errors in the conduct of the trial. The appellant also seeks to introduce fresh evidence on the appeal that he contends necessitates a new trial. Most of that fresh evidence is directed at the appellant’s assertion that he was the victim of ineffective assistance by trial counsel.

[5] The Crown seeks leave to appeal the sentences imposed by the trial judge.[^1] The Crown argues that the trial judge wrongly treated the absence of gratuitous violence as a mitigating factor and that the sentence is manifestly inadequate.

[6] I would dismiss the appeals.

II

The Evidence

[7] In the fall of 1992, M.S. was in the appellant’s grade six class. M.S. came from a broken home and had a history of behavioural problems at school and at home. The appellant, who was a new teacher at the school, took an interest in M.S. and spoke to his mother suggesting that he could counsel M.S. and help him with his problems. M.S.’s mother accepted the appellant’s offer. Initially, M.S. liked the appellant, appreciated the extra attention and became involved in extra-curricular activities organized by the appellant.

[8] Near the end of the grade six school year (spring 1993), the appellant offered M.S. a job at the appellant’s farm. M.S. was almost twelve. M.S. testified that the sexual activity with the appellant began on the very first visit to the farm. After showing M.S. around the farm, the appellant produced a tape measure and suggested that he and M.S. should measure each other’s penises. The appellant said this was something that good friends did to each other. The complainant went along with the appellant’s suggestion.

[9] M.S. was in the appellant’s class in grades seven and eight. M.S.’s mother testified that the appellant told her that he had arranged for M.S. to be in his class. The principal testified that the appellant told him that M.S.’s mother had requested that M.S. be placed in his class. M.S. continued to work at the appellant’s farm when he was in grades seven and eight. He also travelled around Ontario with the appellant in connection with the appellant’s summer employment for a company called Swift Canoe. M.S. also went to the appellant’s family cottage in Tobermory with the appellant.

[10] M.S. testified that after the initial sexual encounter in the spring of 1993, he and the appellant engaged in various sexual acts on a regular basis through to February 1998. The acts progressed from mutual fondling, to mutual oral sex, to anal intercourse. According to M.S., he was sexually abused on average at least once a week between the first incident in 1993 and February 1998. Most of the sexual activity occurred at the farm in the basement of the appellant’s home. Occasionally, the appellant and M.S. engaged in sexual activity in the barn. M.S. also described sexual activity that occurred while he was visiting the appellant’s cottage in Tobermory, and at various other locations when he and the appellant were travelling to boat shows and other events during the summers for Swift Canoe. M.S. testified that there was one act of oral sex in the appellant’s classroom. M.S. was not paid for the sexual activity, but would on occasion be paid for working at the farm even though he had not done any work.

[11] M.S. testified that when he was just starting grade nine, at the appellant’s suggestion, he and the appellant consumed marijuana together. This became a regular feature of their relationship. M.S. was a heavy user of marijuana and had used it before he met the appellant. Defence witnesses confirmed that the appellant had acknowledged using marijuana with M.S..

[12] M.S. described an incident at the family home when the appellant’s son walked in on M.S. and the appellant when they were engaging in oral sex. The appellant’s son turned and left the room. The appellant went after him and returned a short time later telling M.S. that his son had not seen anything. Later, the appellant’s son asked M.S. if he and the appellant were “gay”. M.S. said they were not. The appellant’s son testified and denied that he walked in on M.S. and the appellant when they were having sex or that he ever asked M.S. if his father was “gay”.

[13] The allegations of sexual assault with a weapon and threatening death (counts three and four) arose out of an incident that M.S. testified occurred in the summer of 1993, shortly after the sexual abuse began. The appellant took M.S. to the family cottage in Tobermory to meet the appellant’s father and to hunt partridge. M.S. testified that while they were there, the appellant loaded a shotgun, put it to M.S.’s head and demanded oral sex. M.S. complied. M.S. testified that he and the appellant had engaged in oral sex previously. The appellant also threatened to kill M.S. if he said anything about the incident.

[14] M.S. had an ambivalent attitude about the sexual activity. He acknowledged that he enjoyed some of it, but was disgusted by some of it, particularly having anal intercourse performed on him. He testified that he tried to end his relationship with the appellant on many occasions. He would refuse to go back to the farm to work. The appellant would initially agree that there should be no further sexual activity, but would persistently ask M.S. to return to the farm. Eventually, M.S. would relent, return to the farm, and the sexual activity would begin again. M.S.’s mother confirmed that M.S. quit his job at the farm several times and that when he did, the appellant would repeatedly phone M.S. and ask him to return until M.S. relented and went back to the farm.

[15] Two witnesses testified to overhearing a quarrel in the summer of 1996 during which the appellant was trying to persuade M.S. to return to the farm. M.S. was distraught and wanted nothing to do with the appellant. The appellant told M.S. how much he needed him. One witness described the conversation as sounding like “a lovers’ quarrel”.

[16] Early in February 1998, M.S. decided to end his relationship with the appellant. He stole the appellant’s bank card and withdrew $80 from his account. He also hand delivered a letter to the appellant referring to the sexual abuse in some detail and demanding $10,000 payable in installments over several months. M.S. threatened to go to the press and ruin the appellant’s life if he was not paid. He also threatened to sue the appellant for $1.25 million if he was not paid. M.S. acknowledged in cross-examination that had the appellant paid him, he may well have demanded more money. He also admitted that he had stolen the appellant’s bank card and used it without the appellant’s permission shortly before he wrote the letter demanding money.

[17] In the days following M.S.’s delivery of the letter to the appellant, M.S. sent the appellant e-mails repeating his accusations and threats in sometimes vulgar language. He described the appellant as a “child molester”.

[18] The appellant received M.S.’s demand letter on February 4, 1998. He met with his family to discuss the letter. According to the appellant’s wife, the appellant never considered paying M.S. the money, but did not want to go to the police and cause trouble for M.S.. The appellant spoke with David Cooke, a close family friend who had been a member of the Legislature and a lawyer. Mr. Cooke advised the appellant that he should report the attempted extortion to the police. He also told the appellant that he could be arrested and charged with sexual assault. At the appellant’s request, Mr. Cooke made one unsuccessful attempt to contact M.S.’s mother to discuss the situation. He also spoke to the police about the letter without identifying M.S..

[19] Shortly before February 20, the complainant’s brother became aware of M.S.’s allegations against the appellant and he and M.S. spoke to their mother. They then went to the police. The police took a videotaped statement from M.S. on February 20, 1998, and charged the appellant a few days later. M.S. prepared a time line of the relevant events for the police. In his testimony, he acknowledged that he made some errors in that time line.

[20] The appellant was arrested on February 23. He had retained a criminal lawyer (trial counsel), on Mr. Cooke’s advice several days before his arrest.

[21] The Crown’s case depended largely on M.S.’s evidence. In addition to his in-court testimony, the Crown proffered M.S.’s February 20 videotaped statement. The trial judge admitted the videotaped statement under s. 715.1 of the Criminal Code. The videotaped statement was played during the Crown’s examination-in-chief of M.S. and provided the bulk of M.S.’s description of the relevant events.

[22] There was some evidence capable of supporting M.S.’s testimony. That evidence will be outlined when addressing the ground of appeal relating to the Vetrovec instruction.

[23] The appellant did not testify; however, several defence witnesses were called. The defence denied that any of the acts alleged by M.S. took place. Several arguments were made in support of the defence:

• M.S. was an incredible witness. He had a criminal conviction for sexual interference and had been charged with mischief (subsequent to the alleged sexual abuse), used alcohol and marijuana to excess, had a history of thefts from the appellant and others, and had engaged in other acts of dishonesty.
• M.S. had strong reasons to fabricate his allegations against the appellant. He knew that the appellant, as a teacher, would be vulnerable to allegations of sexual misconduct and he hoped to profit from that vulnerability by extorting money from the appellant, or by obtaining a large damages award in a planned civil suit against the appellant and the school board. M.S. also hoped to avoid the consequences of his theft of the appellant’s bank card.
• M.S.’s version of the events was inherently incredible. For example, M.S. testified that the sexual activities in the basement of the appellant’s home sometimes went on for hours. On the evidence, that home was a busy place with many people coming and going, including the appellant’s wife and children. A second example of the inherent incredibility of M.S.’s testimony arose in his evidence concerning the alleged act of forced oral sex at the cottage in Tobermory. M.S. testified that the appellant put a gun to his head and demanded oral sex. However, M.S. also testified that he and the appellant had previously engaged in oral sex without any threats being made by the appellant.
• M.S. gave inconsistent versions of the relevant events.
• M.S.’s evidence was contradicted on key points by witnesses, including the appellant’s wife, son and daughter, all of whom were much more credible than M.S..
• The appellant was a person of demonstrated good character with a long history of helping young people.

III

The Conviction Appeal

[24] There are two parts to the conviction appeal. The appellant alleges numerous errors at trial. He also asks the court to admit fresh evidence on appeal. Some of the proffered fresh evidence relates to issues raised at trial. Most of it is directed to the claim that the appellant was the victim of ineffective representation by counsel at trial, thereby rendering his convictions a miscarriage of justice.

[25] I will first consider the grounds of appeal that arise from the trial record. I will not address separately all of the arguments referred to in the appellant’s factum. Many were not pursued in oral argument and the court did not require argument from Crown counsel on most of the appellant’s grounds of appeal. I have organized those submissions that warrant some analysis under six headings:

• the alleged instruction to convict;
• the instruction on reasonable doubt;
• the fairness of the jury instruction;
• the Vetrovec/confirmatory evidence instruction;
• issues relating to M.S.’s videotaped statement; and
• issues arising out of the appellant’s failure to testify.

(i) The alleged instruction to convict

[26] The trial judge told the jury on several occasions that if, on the facts as found by the jury, they were satisfied that the Crown had proved each of the essential elements of any of the charges beyond a reasonable doubt, they were required to convict. For example, when instructing the jury on count one (sexual assault), the trial judge said:

If the Crown proves to your satisfaction, beyond a reasonable doubt, all of the essential ingredients of the offence of sexual assault, then you must find the accused guilty. On the other hand, if you have any reasonable doubt that the Crown has not proven any one or more of the ingredients of the offence, you must find the accused not guilty [emphasis added].

[27] The appellant describes the above-quoted direction as an instruction to convict and a usurpation by the trial judge of the jury’s function in a criminal trial. This submission is to say the least startling. An instruction like that quoted above appears in virtually every jury instruction in a criminal case that I have ever read.

[28] Counsel relies on the recent judgment of the Supreme Court of Canada in R. v. Gunning (2005), 2005 SCC 27, 196 C.C.C. (3d) 123 (S.C.C.). It offers no support for his contention. In Gunning, the trial judge instructed the jury that, “as a matter of law”, the Crown had proved that the accused’s discharge of a firearm constituted an unlawful act for the purposes of the definition of culpable homicide. Charron J., for a unanimous court, held that the instruction on this point constituted a reversible error. She observed at p. 135:

[I]t is never the function of the judge in a jury trial to assess the evidence and make a determination that the Crown has proven one or more of the essential elements of the offence and to direct the jury accordingly. It does not matter how obvious the judge may believe the answer to be [emphasis added]. …

[29] The instruction impugned in this case did not encroach on the jury’s fact finding domain. The trial judge did not tell the jury that they must find as a fact that the Crown had established any of the essential elements of the charges. Rather, the trial judge told the jury that if they found that the Crown had proved the essential elements of the offence beyond a reasonable doubt, they were obliged to convict. The distinction is between an instruction that tells a jury what facts it must find and an instruction that tells a jury the legal consequence should the jury make certain findings of fact beyond a reasonable doubt. The former instruction intrudes on the jury’s exclusive fact-finding function; the latter is a crucial component of the legal direction that judges must give to juries.

[30] The trial judge’s instruction that the jury was duty bound to convict if it made certain findings beyond a reasonable doubt and equally obligated to acquit if it did not was mandated both by the rule of law and the oath taken by each juror to truly try the case.

(ii) The instruction on reasonable doubt

[31] The appellant alleges non-direction and misdirection in the instruction on reasonable doubt. He contends that the instruction failed to include essential components of the reasonable doubt instruction identified in R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.). The appellant further submits that in some respects, the trial judge’s instruction on reasonable doubt is in direct conflict with those authorities.

[32] In the pre-charge discussions, defence counsel specifically asked the trial judge to instruct the jury in accordance with the language from Starr in para. 242 where Iacobucci J., for the majority, said:

In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities.

[33] The trial judge did not use this language from Starr in describing reasonable doubt to the jury. In response to counsel’s objection, the trial judge said that he used different language because he was concerned that the phrase “balance of probabilities” would introduce unnecessary complexity and confusion into his instruction. The trial judge did not re-instruct the jury.

[34] After several hours of deliberation, the jury forwarded two questions to the trial judge. The second was:

What constitutes reasonable doubt on counts numbers three and four [the charges involving the weapon]?

[35] The trial judge indicated that he proposed to repeat his reasonable doubt instruction. Defence counsel again asked the trial judge to use the language from Starr to explain to the jury that reasonable doubt is much closer to absolute certainty than to proof on a balance of probabilities. The trial judge chose to repeat his original reasonable doubt instruction.

[36] I have some difficulty understanding the trial judge’s reticence to place the reasonable doubt standard along the proof continuum as described in Starr. He could have done so using phrases like “probable guilt” if he was concerned that the phrase “balance of probabilities” might be confusing.[^2] However, the adequacy of a reasonable doubt instruction does not turn on the words used by the trial judge. As Iacobucci J. said in Starr at para. 233:

A charge must be examined in its entirety to determine whether the essential elements of a fair and accurate instruction on reasonable doubt are present and have been properly explained. The question in every case in which a trial judge’s instructions on reasonable doubt are impugned is whether there is a reasonable likelihood that the jury was under a misapprehension as to the correct standard of proof to apply [emphasis added].

[37] Starr does not suggest that it is mandatory that the jury be told that the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities. Iacobucci J. instead described that approach as “an effective way” of defining the reasonable doubt standard. The trial judge defined that standard in the following way:

Finally keep in mind that it is rarely possible to prove anything with absolute or mathematical certainty and so the burden of proof on the Crown is to prove guilt beyond a reasonable doubt. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient at all. In those circumstances you must give the benefit of the doubt to the accused and acquit him because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. In short, if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt [emphasis added].

[38] The trial judge’s instructions closely track the model charge suggested by Cory J. in Lifchus at para. 39. A reasonable jury hearing this instruction would have no difficulty understanding that proof beyond a reasonable doubt, while short of absolute certainty, is well beyond probable or likely guilt. I am further satisfied that the use of the word “sure”, a common, everyday word meaning certain, would reinforce the instruction that proof beyond a reasonable doubt is well beyond probable or likely guilt and approaches certainty. I reject the appellant’s contention that the word “sure” cannot form part of the explanation of the reasonable doubt standard. While standing alone, an instruction that the jury must be “sure” is an inadequate explanation of reasonable doubt (Lifchus at para. 33), the word can be used in the context of explaining that proof beyond a reasonable doubt is something less than certainty, but something more than probable guilt. Indeed, the word “sure” is used by Cory J. in his model charge: Lifchus at para. 39.

[39] The appellant also submits that the trial judge committed reversible error when he failed to tell the jury that a reasonable doubt could arise from the absence of evidence. Both Lifchus at para. 39 and Starr at para. 231 recognize that a reasonable doubt can arise from the absence of evidence. The failure to so instruct the jury is not, however, automatically reversible error: R. v. Pan (1999), 134 C.C.C. (3d) 1 at 79-84 (Ont. C.A.), aff’d (2001), 2001 SCC 42, 155 C.C.C. (3d) 97 at 149-50 (S.C.C.); R. v. Rochon (2003), 173 C.C.C. (3d) 321 at 347-48 (Ont. C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 230. It is reversible error if the omission considered in the context of the entire reasonable doubt instruction creates a real concern that the jury misunderstood the correct standard of proof to be applied: R. v. Rhee (2001), 2001 SCC 71, 158 C.C.C. (3d) 129 at 139 (S.C.C.).

[40] I see no danger that the failure to expressly tell the jury that a reasonable doubt could arise from the absence of evidence would have led the jury to misapprehend the proper burden of proof. The trial judge repeatedly told the jury that the reasonable doubt standard was to be applied to “all of the evidence considered as a whole”. These words suggest that gaps and silences in the evidence must be factored into the reasonable doubt assessment.

[41] This was also not a case where there was any real likelihood that the question whether the Crown had met its burden would turn on the absence of evidence. The jury had direct evidence from M.S. that the appellant had committed the crimes alleged. The defence mounted a strong challenge to his reliability and credibility and also advanced character evidence suggesting that the appellant was not the kind of person who would commit the crimes. The trial judge correctly instructed the jury as to the application of the reasonable doubt standard both to the assessment of M.S.’s credibility and the character evidence advanced by the defence. In reference to credibility, immediately after the trial judge’s instruction on the meaning of the reasonable doubt standard, he went on to say:

I am going to speak to you for just a moment about reasonable doubt and credibility. You may have trouble deciding which witnesses you do not believe. You should know that the rule of reasonable doubt also applies to the issue of credibility. You need not definitely decide on the credibility of a witness or proof of witnesses. You need not fully believe or disbelieve one witness or a group of witnesses. If you have a reasonable doubt as to the guilt of the accused arising from the credibility of the witnesses, then you must find him not guilty [emphasis added].

[42] This instruction went to the heart of the application of the reasonable doubt standard in this case. The jury would understand that if they had a reasonable doubt about M.S.’s credibility, they must acquit. The trial judge made the same point later in his directions when he gave an instruction in accordance with R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.).

[43] In respect of the character evidence, the trial judge told the jury:

If the testimony of one or more of these character witnesses raises a reasonable doubt in your minds that Ronald Archer committed any one or more of the offences charged, you must find him not guilty of these offences on which you have a reasonable doubt.

[44] The trial judge carefully tailored his reasonable doubt instruction to fit the case that went to the jury. The jury could not have been under any misapprehension as to either the standard of proof or how it was to be applied by them.

(iii) The fairness of the jury instruction

[45] The appellant submits that the trial judge’s instruction was slanted in favour or the Crown, that it inadequately put the position of the defence, and that it all but ignored evidence vital to the defence.

[46] A charge to the jury should of course be fair to both the Crown and the defence. The fairness of a jury instruction is best measured by examining the charge as a whole. The general tenor of the instruction and the overall approach taken by the trial judge in his or her charge will usually provide a more accurate insight into its fairness than will a microscopic parsing of isolated passages.

[47] This trial judge clearly identified the legal issues arising out of each of the four counts in the indictment. He chose to outline the position of the Crown and the defence in brief terms. He did so, however, in a balanced and accurate way. The trial judge also chose not to review the evidence in detail, but instead to provide capsulized descriptions of parts of the evidence when referring to issues to which that evidence had relevance. The trial judge followed this approach when dealing with both Crown and defence evidence. Some trial judges would have reviewed the defence and Crown arguments at length and reviewed the evidence extensively. Reasonable judges might well disagree on which approach is more effective in a given case.

[48] Appellate review of the adequacy and fairness of a jury instruction does not look to the style or format used by the trial judge, but to whether the charge properly instructed the jury as to the relevant law, whether it fairly and accurately outlined the position of the parties, and whether it alerted the jury to the evidence relevant to the positions of the parties: R. v. Cooper (1993), 78 C.C.C. (3d) 289 at 301 (S.C.C.); R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 at 555 (Ont. C.A.).

[49] I have read the charge to the jury several times. I get no sense that the trial judge was attempting to place the weight of his office on either the side of the Crown or the defence, or that he inadvertently did so. The charge was an evenhanded attempt to equip the jury with the instructions necessary to render true verdicts. I am fortified in my assessment by defence counsel’s reaction to the instruction. Although he raised several objections to the charge, he did not suggest that the instructions were unfair to the defence. To the contrary, it was the Crown who complained, wrongly in my view, that the charge “essentially guts” the case for the Crown.

[50] By the end of the instructions, the jury would have understood that it could convict only if satisfied beyond a reasonable doubt that M.S. was telling the truth. The trial judge cautioned the jury in strong language about the dangers inherent in accepting M.S.’s evidence. He also referred to the defence arguments in support of the contention that M.S. should not be believed. These included references to the inconsistencies between M.S.’s evidence and evidence given by other witnesses, M.S.’s motives to fabricate the allegations, M.S.’s acts of prior criminality and dishonesty, and the inherent improbability of much of M.S.’s evidence. The trial judge’s decision not to review all of the evidence (and I note that some of the unreviewed evidence could have significantly assisted the Crown), does not render his instruction inadequate or unfair. Similarly, his decision not to repeat the Crown and defence arguments at length cannot be equated with a failure to put the positions of the parties to the jury. The trial judge’s obligation to put the defence position does not mean that he or she must reargue the case for either the defence or Crown.

[51] The case that ultimately went to the jury was a straightforward one. If the jury, having considered all of the evidence, including the defence evidence and the trial judge’s strong caution about accepting M.S.’s evidence, were convinced beyond a reasonable doubt that M.S. was telling the truth, the jury would convict. If, after considering all of the evidence, including the defence evidence, the jury had a reasonable doubt about the truth of M.S.’s testimony for any of the reasons advanced by the defence and reviewed by the trial judge, the jury would acquit. The trial judge’s instructions made these choices clear, and equipped the jury with the tools necessary to render true verdicts.

(iv) The Vetrovec/confirmatory evidence instruction

[52] The appellant alleges numerous errors in the Vetrovec warning on the dangers of accepting M.S.’s evidence and in the instructions as to the evidence that the jury could consider as potentially confirmatory of his evidence.

[53] I begin with the Vetrovec instruction. I find no error. The instruction complied with the controlling case law as recently analyzed and summarized in R. v. Trudel (2004), 182 C.C.C. (3d) 321, leave to appeal to S.C.C. refused, (2004) S.C.C.A. No. 246.

[54] In Trudel, Rosenberg J.A. at para. 82, identified the four components of a proper Vetrovec warning. Each is found in the trial judge’s instruction. First, the trial judge, in the exercise of his discretion, identified M.S. as a witness whose evidence should be approached by the jury with caution. Second, the trial judge identified the factors that brought M.S.’s credibility into serious question. These included his proven prior acts of criminality and dishonesty, his attempt to extract $10,000 from the appellant in return for not going to the police, and his potential monetary gain arising from a threatened lawsuit for $1.25 million against the appellant and the school board. The trial judge went so far as to explain to the jury how the appellant’s conviction would be a “substantial advantage” to M.S. in the civil proceedings. Third, the trial judge expressly told the jury that while it could convict on M.S.’s testimony alone if convinced by it beyond a reasonable doubt, it would be dangerous for them to do so in the absence of confirmatory evidence. Fourth and finally, he instructed the jury to examine the evidence and determine whether there was evidence independent of M.S.’s that the jury accepted and that supported his evidence on important matters.

[55] The appellant contends that the trial judge misdirected the jury when instructing them as to what evidence could be confirmatory of M.S.’s testimony. The trial judge defined the concept of confirmatory evidence as applied in the context of the Vetrovec warning in language that tracks the words used in R. v. Krugel (2000), 143 C.C.C. (3d) 367 at 395 (Ont. C.A.). He said:

What you should look for is evidence that agrees with the important parts of M.S.’s evidence that makes you more confident that his testimony is true.

[56] Confirmatory evidence in the context of the Vetrovec instruction does not have to prove the guilt of the accused or even implicate the accused in the commission of the alleged offences. Confirmatory evidence must, however, be reasonably capable of strengthening the jury’s belief that the suspect witness is telling the truth on an important aspect of his evidence. For example, the evidence from defence witnesses confirming M.S.’s testimony that he and the appellant used marijuana together, while not implicating the appellant in any of the alleged crimes, did confirm M.S.’s story concerning the use of marijuana. That feature of his evidence was capable of providing significant insight into the true nature of the relationship between the appellant and M.S., thereby enhancing M.S.’s credibility on an important issue.

[57] Having accurately defined confirmatory evidence for the relevant purpose, the trial judge correctly told the jury that it was their responsibility to determine whether there was any evidence that was confirmatory of important parts of M.S.’s evidence.

[58] A trial judge is not required to itemize all of the evidence that is capable of confirming the evidence of the suspect witness. Judges must tailor their instruction on confirmatory evidence so as to equip the jury with the means to determine whether there is confirmatory evidence, but at the same time they must avoid prejudicing the defence with a detailed recitation of a mass of inculpatory evidence: R. v. Bevan (1993), 82 C.C.C. (3d) 310 at 326 (S.C.C.). This trial judge chose not to provide an exhaustive list of the potentially confirmatory evidence, but instead identified three examples of such evidence. That approach is entitled to deference on appeal: Bevan, supra.

[59] The first example given by the trial judge arose from the evidence of D.M., a teacher at M.S.’s school. Mr. D.M. testified that on a school day, he went to the appellant’s school room searching for some material. Mr. D.M. knocked and tried to go into the appellant’s classroom, but the door was locked. The window of the door was covered with a poster. Mr. D.M. used his key to enter the room. To his surprise, he found the appellant and M.S. sitting on a couch in the back of the classroom. Mr. D.M. felt like he was intruding on something. He spoke briefly to the appellant and left. Mr. D.M. reported the incident to the principal.

[60] In his testimony, M.S. described an incident that occurred on the weekend in the appellant’s classroom. He testified that he and the appellant engaged in oral sex and that the door was locked and that the window of the door was covered by a poster. M.S. did not testify that anyone walked into the room during this incident.

[61] The second example of potential confirmatory evidence referred to by the trial judge was the evidence of the so-called “lovers’ quarrel”. This evidence came from two witnesses who described an encounter between the appellant and M.S. during which M.S. was upset and the appellant was telling M.S. how much he needed him and pleading with him to come back to the farm.

[62] Both of these examples were capable of confirming M.S.’s evidence on important matters. Mr. D.M.’s evidence offered some confirmation of M.S.’s description of the circumstances surrounding the one sexual assault which M.S. said occurred in the classroom. The differences between the evidence of Mr. D.M. and M.S. had to be considered in determining whether Mr. D.M.’s evidence was confirmatory. Those differences did not, however, exclude the possibility that the jury could take Mr. D.M.’s evidence as providing some support for the credibility of M.S. on significant issues, in particular, his description of the circumstances in which the assault in the appellant’s classroom occurred.

[63] The second example was potentially confirmatory of M.S.’s evidence concerning the appellant’s persistent attempts to continue their relationship despite M.S.’s indication that he did not want to carry on with the relationship any further. The quarrel as described by the witnesses also offers some support for M.S.’s evidence as to the nature of the relationship. It suggests a relationship that was very different from that of teacher and student or employer and employee.

[64] The third example of potential confirmatory evidence referred to by the trial judge was found in the evidence of J.K., another teacher at the appellant’s school. Mr. J.K. did not testify about any interaction between M.S. and the appellant. In his testimony, he described various events that suggested that the appellant had a strong interest in his young male students, and that his interaction with those students was in some ways contrary to the regulations of the school and against the better judgment of the appellant’s peers. The trial judge told the jury that Mr. J.K. offered no evidence of any sexual misconduct between M.S. and the appellant.

[65] I cannot agree that Mr. J.K.’s evidence was potentially confirmatory of important parts of M.S.’s testimony. It arguably went some way to rebut the character evidence that the defence introduced, but in my view, it offered no confirmation of M.S.’s testimony.

[66] The effect of the trial judge’s erroneous characterization of Mr. J.K.’s evidence as potentially confirmatory must be determined in the context of the entire charge and the totality of the evidence. There were several additional pieces of evidence capable of confirming M.S.’s testimony that were not referred to by the trial judge. As indicated above, the evidence from defence witnesses confirming M.S.’s evidence that he and the appellant used marijuana together was potentially confirmatory of M.S.’s evidence. There was also evidence from the former wife of the appellant’s father that on two occasions when the appellant and M.S. stayed at the cottage at Tobermory, they slept in the same bed. This witness also testified that on one of those occasions she heard bouncing noises from the bedroom that sounded like a couple “making out” on the bed. The evidence that M.S. had anal warts when examined in September of 1998 and that those warts were consistent with anal intercourse offered some confirmation of M.S.’s testimony. The testimony of M.S.’s mother that M.S. repeatedly quit his job at the farm only to return after persistent requests from the appellant offered some confirmation of M.S.’s testimony regarding the relationship between the appellant and M.S.. The trial judge could have referred to some or all of the evidence outlined above. He chose not to do so to preserve a proper balance in his instruction on confirmatory evidence.

[67] The trial judge gave a proper definition of confirmatory evidence, told the jury that it was for them to decide what evidence was confirmatory, properly summarized Mr. J.K.’s evidence, and expressly told the jury that Mr. J.K. gave no evidence of any sexual misconduct between M.S. and the appellant. I think that the jury, applying the instructions given to them, would not have regarded Mr. J.K.’s evidence as confirmatory.

[68] Considered in its entirety, the trial judge’s approach to confirmatory evidence was fair to the appellant and free of error save for the reference to Mr. J.K.’s evidence. In my view, that reference could not have caused any prejudice to the appellant.

(v) Issues relating to M.S.’s videotaped statement

[69] The appellant argues that the videotaped statement made by M.S. to the police on February 20, 1998 did not meet the statutory preconditions to admissibility set out in s. 715.1 of the Criminal Code and should have been excluded by the trial judge. The appellant also argues that if the videotaped statement was properly admitted, the trial judge should not have allowed the jury to have the videotaped statement during its deliberations and that the trial judge’s instruction concerning the videotaped statement was inadequate.

[70] At trial, counsel for the appellant conceded that the statutory preconditions to admissibility had been met by the Crown. He argued, however, that the statement should be excluded because its potential prejudicial effect outweighed its probative value. The trial judge rejected this argument.

[71] On appeal, counsel argued that the statement was not “made within a reasonable time after the alleged offence” as required by s. 715.1 and should not have been admitted into evidence.

[72] The videotaped statement was made immediately after M.S. went to the police on February 20, 1998, and within about three weeks of the date on which M.S. said the last act of sexual abuse occurred. The appellant does not submit that three weeks would constitute an unreasonable time between the offence and the making of the statement. He argues, however, that a videotaped statement is admissible under s. 715.1 only if the statement is made within a reasonable time of all of the allegations of sexual abuse made in the videotaped statement. He submits that the events described by M.S. in the videotaped statement commenced almost five years before the making of the statement and that five years is at least “prima facie unreasonable”.

[73] The determination of whether a videotaped statement is made within a reasonable time after the alleged offence must be made on a case-by-case basis by the trial judge. Appellate courts will not interfere with that assessment, absent demonstrated error in principle or an unreasonable finding: R. v. L.(D.O.) (1993), 85 C.C.C. (3d) 289 at paras. 73-74 (S.C.C.).

[74] Because counsel at trial conceded that the statutory requirements were met, the trial judge did not deal specifically with the timing of the making of the videotaped statement. I am satisfied, however, that had the argument made on appeal been made at trial, the trial judge would have been satisfied that the videotape was “made within a reasonable time after the alleged offence”. Where, as here, the alleged offence involves ongoing sexual abuse over a prolonged period of time, the operative date must be the last incident of abuse. In this case, the alleged offence of sexual assault began in 1993, but the offence alleged in count one continued until early February 1998. The “alleged offence” was ongoing less than three weeks before the videotape was made.

[75] My interpretation of the reasonable time requirement is consistent with that found in R. v. R.W.N. (2004), 181 C.C.C. (3d) 470 at paras. 20-21 (Ont. C.A.) and R. v. S.M. (1995), 1995 ABCA 198, 98 C.C.C. (3d) 526 (Alta. C.A.). More importantly, in my view, the interpretation urged by the appellant would exclude all statements made by child victims who had endured a prolonged period of abuse, no matter how close to the end of the abuse the child made the videotaped statement. It is in those very cases that the two purposes of s. 715.1 – to provide the jury with an accurate account of events and to reduce trauma to the child – can figure most prominently: see R. v. C.C.F. (1997), 120 C.C.C. (3d) 225 at 236 (S.C.C.).

[76] The statutory preconditions to admissibility were met. As the appellant does not challenge the trial judge’s ruling that the probative value of the videotaped statement justified its admissibility, the statement was properly admitted.

[77] The second argument directed at the videotaped statement also features appellate counsel taking a diametrically different position than that taken by counsel at trial. At trial, counsel did not suggest that the videotaped statement should not go into the jury room during deliberations. It is clear from his closing argument that he contemplated that the jury would review the statement and he urged them to consider the patent incredibility of parts of M.S.’s videotaped statement. On appeal, counsel argues that the trial judge committed reversible error in allowing the jury to take the videotaped statement to the jury room during deliberations.

[78] The jury was entitled to review the videotaped statement during its deliberations. The question is whether that review should have taken place in the courtroom or in the jury deliberation room. There is some authority that can be read as prohibiting viewing the videotaped statement in the jury room: see R. v. Kilabuk (1990), 60 C.C.C. (3d) 413 (N.W.T.S.C.). Authority from this court, however, makes it clear that the trial judge has a discretion to allow the jury to take the videotaped statement with them during their deliberations. An appellate court will interfere with that exercise of discretion only where the appellant can demonstrate that his right to a fair trial was compromised by allowing the jury to take the videotape with them during their deliberations: R. v. Toten (1993), 83 C.C.C. (3d) 5 at 49 (Ont. C.A.); R.W.N., supra, at para. 15.

[79] Absent any suggestion at trial that the trial judge should not allow the jury to take the videotaped statement to the jury room, it is difficult to see how the trial judge can be said to have misused his discretion. Any impact on the fairness of the trial turned on the instruction to the jury concerning the videotaped statement. This leads to the third group of submissions made in respect of the videotaped statement.

[80] Counsel submits that the trial judge should have specifically told the jury that the Vetrovec caution applied to the contents of the videotaped statement. In my view, while it is true that he could have given this instruction, his failure to do so did not constitute misdirection. The trial judge made it clear to the jury, both when the statement was introduced and during his charge to the jury, that M.S.’s evidence consisted of the videotaped statement and his in-court testimony. The videotaped statement and the in-court testimony were presented to the jury as a single entity. In many ways, M.S.’s in-court examination-in-chief was but an elaboration of his videotaped statement. I have no doubt that the jury understood that the Vetrovec caution applied to everything M.S. said about the alleged abuse, whether in the videotaped statement or in his oral testimony.

[81] Counsel next submitted that since the trial judge left the videotaped statement with the jury for their review during their deliberations, he should have conducted a more detailed review of M.S.’s cross-examination so as to ensure that the jury had a proper appreciation of the entirety of M.S.’s evidence. Once again, the trial judge could have engaged in a more detailed review of M.S.’s evidence. I cannot, however, describe his failure to do so as non-direction. This was not a case where the main attack on M.S.’s evidence rested on the assertion that his testimony was substantially different and more favourable to the appellant than the contents of his videotaped statement. M.S. did not resile from any significant parts of the videotaped statement during cross-examination. It was the position of the defence that M.S.’s allegations both as contained in the videotaped statement and repeated in his testimony were too incredible to believe for the many reasons already outlined above. Given the primary thrust of the defence, I cannot say that the failure to review M.S.’s cross-examination in more detail prejudiced the appellant or rendered the trial unfair.[^3]

[82] Finally, counsel argued that the trial judge improperly reviewed the statutory conditions for admissibility of M.S.’s videotaped statement with the jury and told the jury that these conditions had been met. It was unnecessary for the trial judge to refer to the conditions for admissibility in s. 715.1. The trial judge’s reference to the statutory preconditions to admissibility gave the jury information that was irrelevant to their deliberations. I agree, however, with Crown counsel’s submissions that these instructions did not prejudice the appellant. Nothing in the instructions concerning the preconditions to admissibility suggested that the trial judge’s decision to admit the statement gave it enhanced reliability or credibility: see R. v. Foreman (2002), 169 C.C.C. (3d) 489 at 503-504 (Ont. C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 199.

(vi) Issues arising out of the appellant’s failure to testify

[83] The appellant did not testify. Counsel submits that the appellant’s failure to testify should have caused the trial judge to declare a mistrial or at least make inquiries of the appellant to ensure that the appellant understood that he had a constitutional right to testify and that it was he and not counsel who must decide whether the appellant would testify. Counsel contends that it should have been obvious to the trial judge that the appellant could not obtain a fair trial unless he testified and that when he did not testify, the trial judge should have intervened.

[84] Counsel at least acknowledges that it would take extraordinary circumstances for a trial judge to either declare a mistrial or conduct an inquiry as to the accused’s understanding of his right to testify where an accused does not testify. Indeed, judicial oversight of the conduct of the defence, and in particular the decision to testify, is not part of our adversarial process and is fraught with danger. Judicial “second-guessing” of that decision by way of a mistrial order or judicial inquiries into the basis for the decision will subvert the client/solicitor relationship, undermine the independence and effectiveness of defence counsel, distort, if not destroy the appearance of judicial impartiality, and could well lead to the disclosure of information that would render it most difficult for an accused to receive a fair trial.

[85] I cannot imagine a situation in which a trial judge would be justified in unilaterally declaring a mistrial because an accused did not testify without at least first conducting some inquiry. Furthermore, it would take the clearest indication that something had gone fundamentally wrong in the client/solicitor relationship, or in the accused’s understanding of his or her right to testify, before a trial judge would be entitled to make the kind of inquiries urged by the appellant.

[86] Counsel submits that the combination of the following factors placed this case in that small category of cases where the trial judge had to intervene either by way of a mistrial order or an inquiry into the accused’s understanding of his right to testify:

• the nature of the allegations and the Crown’s almost total reliance on M.S.’s evidence called for a strong denial from the mouth of the appellant;
• counsel’s statement during pre-trial argument regarding the admissibility of the appellant’s statement to police that the appellant would in all probability testify;
• counsel’s application to exclude the appellant’s largely exculpatory statement to the police made sense only if the appellant was going to testify in his own defence; and
• counsel’s statement in his closing address that it was he who had decided that the appellant would not testify.

[87] These submissions overlap the submissions relating to the allegations of ineffective assistance of counsel. For present purposes, however, I address the merits of these arguments without regard to the post-trial material compiled by the appellant and the Crown on the ineffective assistance of counsel argument. My analysis addresses these submissions in the context of the trial record only.

[88] The first three factors relied on by the appellant require little comment. While I can agree that this is the type of case in which an accused will often testify, I reject the suggestion that the appellant’s failure to testify was so unusual as to warrant some reaction from the trial judge.

[89] Counsel’s comments to the trial judge concerning the likelihood that his client would testify were made in the course of legal submissions some eight months before the trial and are of no moment. There is no reason to think that the trial judge did recall, or should have recalled, these comments. Even if the trial judge did remember that counsel had said that his client would probably testify, there was no reason to think that the eventual decision not to testify was in any way improper. It is not unusual that counsel anticipates that the accused will testify prior to trial, but as matters unfold, the accused does not testify. There is no reason why the trial judge, had he recalled counsel’s comments made eight months earlier, would not have assumed that this was a case where subsequent events had overtaken counsel’s pre-trial indication that the appellant would probably testify.

[90] I cannot accept the appellant’s submission that defence counsel’s opposition to the admission of the appellant’s largely exculpatory statement makes sense only if the appellant testified. Defence counsel argued, successfully, that the statement was potentially prejudicial to the appellant. That prejudice existed whether or not the appellant testified. Even if there was some merit to the contention that counsel’s opposition to the admission of the statement was premised on his client testifying, the ultimate decision that the appellant would not testify suggests nothing more than a change in tactics. Defence tactics are of necessity subject to constant change as the topography of the trial changes. What may be seen as being in the accused’s best interests at one stage of the trial may be seen as detrimental to those interests at a later stage. The appellant’s suggestion that a trial judge must step in and either declare a mistrial or conduct an inquiry whenever the trial judge perceives that tactics have changed invites judicial interference in the conduct of the defence as a matter of course. That interference is fundamentally inconsistent with the neutral role of the trial judge in the adversarial process.

[91] The fourth factor referred to by counsel requires some elaboration. During defence counsel’s closing address he said:

There is no requirement at law that Mr. Archer testify. It is a decision that was made by me and by me alone. …

[92] At the beginning of his charge, the trial judge told the jury that trial counsel should not have commented on why the accused had not testified:

Yesterday … Mr. Nowak spoke of the decision of his not to ask the accused to give evidence. Now that is not an appropriate comment because that comment to you is totally irrelevant to the deliberation process that you have to take. It is a fact that Mr. Nowak ought not to have made that statement with respect to not calling evidence, that particular evidence, and I have told you that that statement by him is irrelevant to your task in deciding the guilt or innocence of the accused. Simply put, I instruct you that you are required to base your verdict on the evidence that is called at trial and to disregard the explanation by the defence for that decision not to have the accused give evidence. I am going to leave the matter at that.

[93] Counsel for the appellant submits that trial counsel’s comments to the jury reveal a profound misunderstanding of counsel’s role in deciding whether his client should testify. Counsel submits that while it is trial counsel’s obligation to advise the client on whether he or she should testify, the client must make the ultimate decision. Counsel contends that trial counsel took that decision away from the appellant and thereby denied him his right to testify at his own trial.

[94] The allegation that counsel made the decision as to whether the appellant should testify is central to the ineffective representation of counsel argument and will be dealt with below. In that context, it will be necessary to consider who in fact made the decision not to testify. However, in the context of this argument, it is necessary to determine only whether counsel’s statement required that the trial judge either declare a mistrial, or inquire into the accused’s understanding of his right to testify.

[95] The trial judge did not interpret counsel’s comments as a statement that he had prevented the appellant from testifying despite the appellant’s desire to testify. The trial judge treated counsel’s comments as an attempt to avoid any adverse inference that the jury might draw from the appellant’s failure to testify by personally shouldering the responsibility for that decision.

[96] It is not uncommon for counsel to try to avoid any adverse inference from the accused’s failure to testify by telling the jury that counsel is responsible for the conduct of the defence: see R. v. Smith (1997), 120 C.C.C. (3d) 500 (Ont. C.A.). Counsel must, however, be careful to avoid crossing the line between assuming responsibility for the conduct of the defence and effectively giving evidence as to why certain evidence, including the testimony of the accused, was not called by the defence.

[97] The trial judge understood counsel’s comments as going over the line described above. He did not jump to the conclusion that counsel, an experienced criminal lawyer, fundamentally misunderstood the accused’s right to decide whether to testify in his own defence. I see no error in the trial judge’s interpretation of counsel’s remarks. Nothing in that comment could warrant the conclusion that the appellant was somehow unfairly being denied the constitutional right to testify in his own defence.

[98] In his factum, counsel for the appellant argued that the instruction to the jury set out at para. 92 above constituted an impermissible comment by the trial judge on the appellant’s failure to testify and demeaned defence counsel in the eyes of the jury, thereby rendering the trial unfair. Both submissions fail under the burden of this court’s ruling in Smith, supra.

[99] The trial judge did no more than tell the jury to disregard what he considered to be an irrelevant submission that had been placed before them. His instructions were consistent with those suggested in Smith, and could not be understood by any reasonable listener as disparaging counsel for the appellant, or commenting on the appellant’s failure to testify.

IV

The S. 683(1) Application

[100] The appellant brought an application under s. 683(1) of the Criminal Code to adduce material on the appeal that was not part of the trial record. The proffered material falls into two groups: (i) material relating to the credibility of Crown witnesses or to facts in issue at the trial; and (ii) material directed at the alleged incompetence of trial counsel. Each category requires separate consideration. I will refer to the first group as the “fresh evidence” material and the second group as the “ineffective assistance of counsel” material.

(i) The fresh evidence material

[101] The fresh evidence material consists of an affidavit from the appellant and two affidavits of A.S.. The appellant relies on this material to establish four material facts, any one of which he contends requires a new trial:

• a memorandum from Graham Tye (the “Tye memorandum”) attached as an exhibit to the appellant’s affidavit and said by the appellant to provide evidence that a Crown witness, William Swift, committed perjury;
• a copy of the statement of claim filed in the civil action brought by M.S. and his mother against the appellant and the school board. The claim was served after the trial and, according to the appellant, demonstrates M.S.’s “continued fabrication” of allegations against the appellant;
• a report from the Centre of Forensic Sciences containing an analysis of semen found on a pair of M.S.’s underwear. According to the appellant, this report provides “exculpatory DNA evidence”;
• a tape recording (and transcript) of a message left by M.S. for a boy named J.S. in 1994. The appellant submits that the recording provides evidence that M.S. had made a false allegation of sexual abuse against J.S.’s father, A.S..

[102] Fresh evidence is admissible on appeal where the interests of justice warrant its admissibility. The criteria governing the exercise of the appellate court’s power to receive fresh evidence are well known and need not be repeated here: see R. v. Palmer and Palmer (1979), 50 C.C.C. (2d) 193 at 205 (S.C.C.); R. v. Levesque (2000), 2000 SCC 47, 148 C.C.C. (3d) 193 at 202-203 (S.C.C.). Before these criteria are engaged, however, the material must constitute admissible evidence. The rules governing the admissibility of evidence in criminal trials apply to evidence proffered on appeal under s. 683(1): R. v. O’Brien (1977), 35 C.C.C. (2d) 209 at 216-17 (S.C.C.); R. v. Babinski (1999), 135 C.C.C. (3d) 1 at 21 (Ont. C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 201.

[103] The Tye memorandum is not evidence of anything. Mr. Tye did not file an affidavit. Assuming the memorandum attached to the appellant’s affidavit is authentic, it is hearsay when offered as a statement made by Mr. Tye, tendered through the affidavit of the appellant.

[104] Even if the Tye memorandum were treated as an affidavit, it is at least double hearsay and would not be admissible at trial. In the memorandum, Mr. Tye purports to report what a third party (an unidentified employee) told him that the third party was told by a fourth party (Mr. Swift). The memorandum provides no evidence of the truth of anything reported by the third party to Mr. Tye. The Tye memorandum also contains a statement of Mr. Tye’s opinion that Mr. Swift lied at the appellant’s trial. The memorandum offers no details of the alleged lies. Mr. Tye’s opinion as to the veracity of Mr. Swift’s testimony is not admissible evidence. No part of the Tye memorandum would be admissible through the appellant at trial. It cannot be received under s. 683(1).

[105] The statement of claim issued against the appellant by M.S. and his mother is also not in and of itself evidence of anything other than the fact that an action has been started and that the allegations made in the statement of claim have been advanced on behalf of the plaintiffs. The appellant’s argument assumes that the statement of claim can be equated with a statement made by M.S.. The appellant argues that some of the allegations in the statement of claim are inconsistent with M.S.’s trial testimony and provide evidence that M.S. continues to fabricate allegations against the appellant in an effort to make his allegations conform with the evidence of other witnesses.

[106] The statement of claim was not authored by M.S. and is not a statement made by him. The potential impeachment value of the document as against M.S., if any, cannot be determined because counsel for the appellant did not seek to question M.S. on the contents of the statement of claim in support of his application under s. 683(1). The statement of claim, standing alone, and introduced through the appellant’s affidavit has no impeachment value and would not be admissible for that purpose when tendered through the appellant. It is not admissible under s. 683(1).

[107] The report from the Centre of Forensic Sciences dated November 5, 1998 was attached as an exhibit to the appellant’s affidavit. There is no affidavit from the author of the report or from anyone else who can attest to its authenticity or explain its contents. The report is hearsay in the form in which the appellant has submitted it.

[108] Even if one ignores that the report is inadmissible hearsay as tendered by the appellant, the report does not meet the criteria for the admissibility of fresh evidence. Not only could it have been available to the defence by the exercise of due diligence at trial, it was in fact produced to the defence prior to trial. Trial counsel decided not to introduce the report at trial. Although the availability of the report at trial does not automatically preclude its admission as fresh evidence on appeal, I think the effect of counsel’s decision not to use the report is most logically to be considered as part of the attack on his competence.

[109] I am also satisfied that the report would not be admissible under the traditional criteria for admitting fresh evidence on appeal because it could not reasonably be expected to have any effect on the result. The report identifies a semen stain on the front panel of a pair of M.S.’s underwear. That stain was made by M.S.’s semen. The report also identifies a trace amount of semen, two spermatozoa, found in the crotch area of M.S.’s underwear. The donor of those spermatozoa has not been identified. The report contains the following notation:

It is possible for small number of spermatozoa to be deposited on clothing through innocuous means such as laundering with semen stained garments. Therefore, no conclusive interpretation can be made regarding the manner of deposition or the significance of the spermatozoa identified in the crotch area of this item [emphasis added].

[110] The report does not contain exculpatory evidence. There is nothing in the material filed by the appellant which excludes the appellant as a potential donor of the two spermatozoa. Nor, given the qualification in the report, could it be inferred from the spermatozoa that M.S. had had sexual contact with another male. In my view, the report was not helpful to either the Crown or the defence. This explains why it was not adduced at trial. It is not admissible under s. 683(1).

[111] The admissibility as fresh evidence of M.S.’s telephone message left for J.S. in 1994 depends on whether the message could be characterized as a false allegation of sexual abuse made by M.S. against J.S.’s father. The message cannot realistically bear that interpretation.

[112] M.S. was about 12 years old when he left the message in 1994. The tone of the message is apparent from the following excerpt:

Pick up the phone J.S., I know you’re listening. Is your dad feeling you up right now you fucking asshole? Is your dad and your mom having sex in the fucking big bed or can’t you afford the fucking big bed, is it big bed, too little for your mom and dad that they have to go in your bedroom. You and your sister’s bedroom. Put the beds together, laying on the bed bare naked and shove mud all over the place. You and your mom are such, you and your mom had it in bed or something or did it too much. Is your sister fucking you right now? Hey, I hope your dad has a fucking problem with his brain, like, J.S. you can pick up the phone right now and, ah, you can talk to my mom, you fucking dick head. Or, or is your dad too busy feeling you up. Yeah, I think your dad’s too busy feeling you up. Your fucking dad doing it to your mom, fucking son of a bitch. Have a nice night with your dad fucker.

[113] The message consists of a string of mindless, crude expletives directed by a twelve year old at a former friend. The message hardly paints M.S. in a favourable light, but could not be understood by any reasonable person as an allegation of sexual abuse against Mr. A.S.. The appellant’s interpretation of the conversation is entirely inconsistent with the tone of the conversation. The message shows M.S. to be capable of verbal abuse and vulgarity beyond what one would expect of a twelve year old, but could not reasonably have had any effect on the jury’s assessment of his credibility or the reliability of his evidence. It is not admissible under s. 683(1).

(ii) The ineffective assistance of counsel material

[114] Counsel for the appellant submits that virtually from the day trial counsel was retained until the trial was completed, trial counsel made “a lengthy series of objectively unreasonable errors in judgment and critical omissions” in the defence of the appellant.

[115] The affidavits filed by the appellant in support of the ineffective assistance of counsel allegation contain approximately twenty-five specific allegations of conduct or omissions that are said to have amounted to ineffective representation. Appellate counsel referred to many, but not all, of those allegations in his factum. In oral argument, he emphasized those surrounding the appellant’s failure to testify.

[116] Crown counsel responded with affidavits from trial counsel and trial counsel’s assistant. There was extensive cross-examination on the affidavits, particularly those filed by trial counsel and the appellant. In many respects, the version of events set out in the appellant’s material is at polar opposites from the version provided by counsel and his assistant. This divergence grew during the appellant’s cross-examination on his affidavit. To some extent, the ineffective assistance of counsel claim turns on an assessment of the credibility of the competing affiants.

[117] Having reviewed the mass of material in detail, I have concluded that the appellant has failed to establish that his legal representation at trial resulted in a miscarriage of justice.

[118] It is helpful to begin with a summary of the applicable legal principles, none of which are in dispute. An accused who is represented at trial is entitled to effective representation by counsel. Ineffective representation may result in a miscarriage of justice necessitating the quashing of the conviction on appeal. Evidence relating to the alleged ineffective assistance of counsel will be received on appeal pursuant to s. 683(1) so that the appellate court may determine whether the representation was ineffective and ultimately whether it resulted in a miscarriage of justice: R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at 43-44, 56-58 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347; R. v. B.(L.C.) (1996), 104 C.C.C. (3d) 353 (Ont. C.A.).

[119] An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three things. First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel’s acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.). As this court said in R. v. White (1997), 114 C.C.C. (3d) 225 at 247:

An appellate court’s review of trial counsel’s performance should be deferential. … deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer’s performance was deficient because they would have conducted the defence differently.

[120] Third, the appellant must demonstrate that counsel’s ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel’s ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: G.D.B., supra, at pp. 298-99; Joanisse, supra, at pp. 62-64. The allegations of ineffective representation on this appeal do not go to the fairness of the trial process, but to the reliability of the result. The appellant says he was convicted because of the serious shortcomings in counsel’s representation of him.

[121] In G.D.B., supra, at pp. 298, Major J. makes the important observation that where an allegation of ineffective representation is made on appeal, the court should first consider whether the alleged incompetence resulted in a miscarriage of justice. If the claim fails on this ground, there is no need to assess the adequacy of counsel’s performance. This approach recognizes that it is the appellate court’s function to determine whether a miscarriage of justice has occurred and not to grade counsel’s performance.

[122] The primary thrust of counsel’s submissions in support of the ineffective assistance of counsel claim is directed at the circumstances surrounding the appellant’s failure to testify. I will address those submissions below. The other allegations of ineffective assistance do not merit individual consideration in these reasons. Each fails to meet at least one of the three preconditions to a successful ineffective assistance of counsel claim. I will refer in summary fashion to some of those submissions.

[123] Several of the allegations fail because the appellant has not established the facts on which the allegations are based. Four examples of such allegations will suffice. First, the appellant argued that trial counsel was in a conflict of interest because of certain advice he gave to the appellant when the appellant first retained him, before the appellant was arrested. The record reveals no conflict. Defence witnesses explained in their testimony that they took certain steps on the advice of counsel. The Crown never challenged that testimony. These same witnesses testified that the appellant’s decision to go to a criminal lawyer (trial counsel) rather than the police after receiving M.S.’s demand letter was a decision made by the appellant on the advice of Mr. Cooke and not trial counsel. Advice given by Mr. Cooke could not put trial counsel in a conflict of interest when the Crown sought to gain some evidentiary advantage from the appellant’s decision to go to a criminal lawyer rather than the police.

[124] A second example of the appellant’s failure to demonstrate the facts underlying the allegation of ineffective representation is found in his allegation that counsel was incompetent because he failed to adduce certain evidence that M.S. had lied to the police in connection with a criminal investigation. As the trial record plainly reveals, trial counsel tried to introduce that evidence, but the trial judge held that it was inadmissible. Appellate counsel has not challenged the correctness of that ruling.

[125] A third example of the appellant’s failure to demonstrate the underlying factual basis for the allegation is seen in the contention that trial counsel was incompetent for failing to raise certain objections to the charge. Counsel on appeal has failed to demonstrate that the objections had any merit.

[126] Finally, appellate counsel argued that trial counsel failed to elicit evidence that M.S. had had sexual contact with other men. In advancing this allegation, counsel relied on the report from the Centre of Forensic Sciences referred to above (paras. 107-110). As indicated above, that report does not provide any evidence from which it could be inferred that M.S. had engaged in sexual activity with anyone. Appellate counsel’s argument that trial counsel was incompetent for failing to produce this evidence to establish that M.S. had sexual contact with other men misunderstands the contents of the report.

[127] Many of the allegations of ineffective representation fail because the appellant has not demonstrated any prejudice in the relevant sense flowing from the alleged ineffective assistance. Once again, four examples will suffice. The appellant argued that trial counsel made numerous errors in relation to disclosure issues, including failing to bring a motion to stay proceedings on the basis of inadequate and late disclosure. Nothing in the material permits this court to make any judgment on what effect, if any, inadequate or late disclosure had on the result at trial. Certainly, there is nothing that hints at the possibility that a motion to stay on the basis of inadequate or late disclosure had any chance of success.

[128] Similarly, the appellant argued that trial counsel should have brought a motion under s. 11(b) of the Charter to stay the trial for unreasonable delay. There is no evidence or argument to suggest that such a motion had any chance of success.

[129] Thirdly, counsel asserts that trial counsel was incompetent in not holding the Crown to its undertakings to call certain witnesses at the preliminary inquiry. Defence counsel instead called these witnesses at the preliminary inquiry. Nothing in the material is directed at any connection between the result at trial and this act of alleged incompetence.

[130] Fourthly, several friends and relatives of the appellant suggested that they were inadequately prepared to give testimony by trial counsel. Under cross-examination, however, it became clear that their claims of inadequate preparation were, to say the least, overstated. There is nothing in those allegations to suggest that a more intensive preparation of these witnesses could have had any impact on the result.

[131] Most of the claims of ineffective representation come down to complaints about tactical decisions made by trial counsel. For example, counsel on appeal argues that trial counsel should not have moved to exclude the appellant’s exculpatory statement to police, should have called more character witnesses, should not have complimented the Crown in the course of his submissions, should not have denigrated his own ability before the jury, should have called additional evidence to demonstrate that certain Crown witnesses were hostile to the appellant, should have produced the report from the Centre of Forensic Sciences, and should not have told the Crown of his intention to call character evidence, thereby allowing the Crown to elicit potential bad character evidence during examination-in-chief. As I understand this last point, counsel argues that he should have forced the Crown to call the bad character evidence in reply at the end of the trial.

[132] The tactical decisions referred to in the paragraph above, and others complained about on the appeal, were explained by trial counsel in his affidavit and cross-examination. Like most trial counsel in a jury case, this trial counsel had many decisions to make. Some of them were difficult. As with most tactical decisions, different lawyers may have made different decisions. That does not mean that any of counsel’s choices demonstrate incompetence.

[133] I cannot brand any of trial counsel’s tactical decisions as clearly wrong, much less incompetent. For example, he is said to be incompetent because he did not immediately advise the police of the “extortion” letter given to the appellant by M.S.. Trial counsel explained that when he first spoke to the appellant and received the letter, he was uncertain what to do with it and he did not want to turn it over to the police until he had a better and fuller understanding of the situation faced by the appellant. Counsel eventually produced the letter to the police and Crown counsel did not attempt to invite the jury to draw any adverse inference from counsel’s failure to produce the letter to the police sooner.

[134] Counsel had a difficult decision to make when first retained by the appellant and presented with the extortion letter. It is understandable that he was reluctant to start giving the police material provided to him by his client before he had a firm grasp of the situation. With the benefit of hindsight, it may be that counsel should have turned the letter over more quickly than he did. It was, however, understandable that he waited until he was confident that he had a full appreciation of his client’s situation. Trial counsel’s cautious approach strikes me as the antithesis of incompetence.

[135] I come now to the claims revolving around the appellant’s failure to testify. The appellant submits that trial counsel and not the appellant decided that the appellant would not testify. The appellant claims that he did not know that it was his decision to make. Alternatively, the appellant argues that if he made the decision not to testify, he did so based on counsel’s advice, which was in all the circumstances so wrongheaded as to render counsel’s representation incompetent.

[136] Initially, trial counsel and the appellant anticipated that the appellant would testify. The appellant testified on the pre-trial motion regarding the admissibility of his statement to police. Trial counsel was unimpressed with the appellant as a witness. Trial counsel arranged for a videotaped mock examination and cross-examination of the appellant. Three persons retained by trial counsel viewed the videotape. They too were unimpressed with the appellant as a witness. By the end of the Crown’s case, trial counsel had determined that the appellant should not testify. According to trial counsel, he advised the appellant against testifying and the appellant took his advice. According to the appellant, defence counsel told him that he would not testify and did not tell the appellant that it was his decision to make.

[137] It is trial counsel’s position that because the appellant had performed poorly in the pre-trial motion as a witness and because the mock cross-examination had not gone well, he came to the conclusion that the appellant should not testify. Trial counsel also considered that the Crown’s case was not strong and that the complainant’s credibility had been effectively undermined. Trial counsel thus advised the appellant not to testify. When the appellant took that advice, counsel had him sign a direction indicating he had decided not to testify and that he understood the implications. Trial counsel indicated, however, that even after the direction was signed, he and the appellant understood that there could be a further change in strategy and the appellant could testify.

[138] The appellant claims that he wanted to testify all along and believed that he would testify until trial counsel told him part way through the defence that he would not testify. The appellant blames any shortcomings in his testimony during the pre-trial motion and the mock cross-examination on trial counsel’s failure to adequately prepare him.

[139] While counsel owes an obligation to advise his client as to whether he or she should testify, the ultimate determination must be made by the client: G.B.D., supra, at p. 300; M. Proulx & D. Layton, Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001) at pp. 114-30. If the appellant can show that it was trial counsel and not the appellant who decided that the appellant would not testify, and that the appellant would have testified had he understood that it was his decision, it seems to me that it must be accepted that his testimony could have affected the result, thereby establishing that a miscarriage of justice occurred: see R. v. Moore (2002), 2002 SKCA 30, 163 C.C.C. (3d) 343 at 371 (Sask. C.A.). The crucial question becomes – who made the decision?

[140] The appellant bears the onus of demonstrating that trial counsel and not the appellant decided that the appellant would not testify. In determining whether the appellant has met that onus, I bear in mind the strong presumption of competence in favour of counsel. Counsel was an experienced criminal lawyer with over twenty years in practice.

[141] The appellant also has a very strong motive to fabricate the claim that he was denied the right to decide whether to testify. The appellant is no longer presumed innocent. He makes his allegation against trial counsel as a convicted felon facing a lengthy penitentiary term. No doubt, the appellant understands that if he can convince the court that his own lawyer denied him the opportunity to testify, he will receive a new trial. Common sense dictates a cautious approach to allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms. It must also be recognized that the confidential nature of the relationship between a lawyer and his client can make it easy for the client to make all kinds of unfounded allegations against his former lawyer.

[142] Furthermore, and apart entirely from the possibility that the appellant has fabricated these allegations, it is not uncommon that a person who has been convicted after having received strong advice from his counsel that he should not testify comes to believe, while awaiting his appeal, that counsel’s strong advice was in fact a decision by counsel that the client should not testify. Looking backwards through the bars of a jail cell is not the most reliable of vantage points from which to see events that culminated in the conviction.

[143] The largest hurdle faced by the appellant in trying to convince the court that the decision not to testify was made by trial counsel is the direction signed by the appellant during the trial. It reads:

I acknowledge that Mark T. Nowak has fully explained to me the implications of testifying on my own behalf at trial and has thoroughly discussed with me my testimony at the pretrial Motions held in this matter on February 7 and 8, 2000. As well Mark T. Nowak, on my instructions, arranged a “mock examination in chief and cross-examination” with Mark T. Nowak acting as my counsel, Stephen Gehl acting as crown attorney and 3 independent parties acting as jurors which took place on September 20, 2000. The “jurors” provided written advice to Mark T. Nowak on their opinions and the gist of this information was provided to me. As well, this exercise was videotaped and I was provided with the videotapes to view with my former lawyer David R. Cooke.

I hereby instruct Mark T. Nowak that I not be called to testify in my own defence and acknowledge that I am fully aware of the consequences of my choice in this regard [emphasis added].

[144] The direction recognizes that the decision to testify belonged to the appellant. It also acknowledges that trial counsel had explained the implications of the appellant’s decision whether to testify. The direction was signed during the trial and after the defence was underway. The direction is in straightforward, clear language and was signed by the appellant, a mature, intelligent person. The timing of the document and the circumstances in which it came into existence makes the document inherently more reliable than the appellant’s post-conviction protestations that he was denied the opportunity to testify.

[145] In his affidavit filed on appeal, the appellant states that he wanted to testify throughout and that trial counsel was aware of his desire to testify. According to the appellant, he and trial counsel met on a Friday after court was adjourned during the defence evidence. The appellant alleges that trial counsel announced that the appellant would not testify. He gave the appellant two reasons for this decision. First, counsel said he had another trial beginning on October 30, 2000 (about a week later), so there was no time for the appellant to testify in his own defence, and second, counsel said that he believed that the jury had grown weary of hearing the same thing over and over again from the defence.

[146] Neither explanation that the appellant says was offered by his counsel makes any sense. Counsel had already arranged to adjourn the other trial, if necessary. It is not uncommon that criminal jury trials take longer than expected and counsel must adjourn later cases. There is seldom any difficulty obtaining an adjournment when counsel is involved in an ongoing jury case. It is very hard to believe that rather than seeking an adjournment that presumably could have been obtained without difficulty, trial counsel instead would decide to forego the appellant’s testimony to accommodate his schedule. I have equal difficulty understanding how any mature, adult person facing a serious criminal charge and possible imprisonment could accept without significant protest his lawyer’s explanation that the lawyer’s schedule did not allow time for his testimony.

[147] The appellant’s second explanation, the supposedly repetitive nature of the defence evidence, while having application to the calling of further character evidence, has no application to the evidence of the appellant. I do not see how trial counsel would view the appellant’s evidence as repetitive of other evidence, or why the appellant would accept that explanation if it were offered.

[148] The appellant tries to explain signing the direction by describing himself as shocked by trial counsel’s announcement that he would not testify. The appellant says he was like “a zombie” and was “in trauma”, did not read the direction, but simply signed it because he was told to do so.

[149] Not only is the appellant’s explanation inherently improbable on its face, it runs against the rest of the appellant’s behaviour during his trial and during his cross-examination for the purposes of this appeal. The appellant was very involved in the trial proceedings and in the conduct of the defence. He is an experienced teacher and is obviously a person of some intelligence. The appellant is also an assertive, if not aggressive, person. During cross-examination on his affidavit by Crown counsel, the appellant was not adverse to trying to take control of the situation. He confidently expressed his own views, interrupted others, and indeed overrode the comments of others, including his own lawyer. All of his conduct is entirely inconsistent with the appellant’s description of himself as meekly signing the direction while in a state of utter confusion and without even looking at the contents of the direction. The appellant’s claim that he signed the direction without even reading it is made all the more unbelievable by his own admission during cross-examination that by the time he signed the direction, he thoroughly distrusted his trial lawyer.

[150] The appellant’s post-conviction assertion that his trial lawyer denied him the opportunity to testify rings hollow and, in my view, can carry no weight. This leaves to be considered trial counsel’s comment to the jury that it was his decision that the appellant would not testify. I have addressed that comment earlier in these reasons (see paras. 91-97). In his affidavit and on cross-examination, trial counsel indicated that his comment to the jury was an attempt to shoulder the responsibility for the appellant not testifying and thereby deflect away from the appellant any adverse inference that the jury might draw. I have no difficulty accepting this explanation from trial counsel, especially when placed beside the signed direction. Counsel made a poor choice of words in his submissions to the jury. As the appellant made the decision not to testify based on counsel’s advice, counsel could certainly have taken responsibility for that decision as part of the conduct of the defence without purporting to have made the decision. In any event, as the trial judge told the jury, trial counsel should not have ventured into the area at all because the explanation for the appellant’s failure to testify was irrelevant to the jury’s deliberations.

[151] The appellant has not demonstrated that his counsel unilaterally made the decision that the appellant would not testify. His claim that his trial counsel denied him the right to testify fails.

[152] The alternative argument – that even if the appellant made the decision not to testify, it was based on incompetent advice from trial counsel that he should not testify –cannot succeed on appeal. Trial counsel based his advice on a number of factors, including the poor impression the appellant made when testifying on the pre-trial motion, the results of the mock cross-examination, and trial counsel’s assessment of the strength of the Crown’s case. Defence counsel must weigh these kinds of considerations in virtually every case when advising their clients as to whether they should testify. The factors identified by trial counsel were all relevant considerations informing his advice to the appellant. It is not for this court to reweigh those considerations and determine what advice should have been given to the appellant. Counsel’s advice that the appellant should not testify was well within the margins of competence. The claim that the appellant received ineffective assistance of counsel at trial fails.

[153] Before leaving the allegations of ineffective assistance of counsel, I must address one further position advanced by counsel for the appellant. He submitted that Crown counsel’s role in the preparation of the affidavits of trial counsel and trial counsel’s assistant contravened this court’s Procedural Protocol Regarding Allegations of Incompetence of Trial Counsel in Criminal Cases, caused trial counsel to breach his duty of loyalty to the appellant, and so contaminated any potential recollection of trial counsel or his assistant as to render their affidavits inadmissible. Counsel submitted that the affidavits were Crown counsel’s version of the relevant events. He argued that it was improper for Crown counsel to invite trial counsel to file an affidavit and equally improper for Crown counsel to prepare draft affidavits after meeting with trial counsel and his assistant. Counsel for the appellant contends that Crown counsel should simply have advised trial counsel of the allegations and informed him that he may be subject to cross-examination on the allegations made against him.

[154] These submissions are devoid of merit and the court did not call on the Crown to respond to any of them. They are fundamentally at odds with the practice that has been followed in this court for at least twenty years. Normally, I would not lengthen what are already long reasons by any further comment on these submissions. However, they cast serious aspersions on the conduct of Crown counsel,[^4] and reveal a fundamental misunderstanding of this court’s expectations of counsel on appeals involving allegations of ineffective assistance of counsel at trial. Some comment on these submissions is necessary.

[155] Crown counsel assigned to this appeal was charged with the responsibility of investigating and responding to the serious allegations made in the appellant’s material against trial counsel. To do so, it was essential that Crown counsel make a detailed inquiry into those allegations. That process required that he speak with trial counsel and his assistant, review all of the appellant’s material with him and the assistant, and give both a full opportunity to respond to the best of their ability to the allegations. It was also incumbent on Crown counsel to ensure that the response was in the format expected by the court, would address the issues that would concern the court, and would not contain irrelevant and potentially prejudicial material. Trial counsel and his assistant were very much in the position of Crown witnesses on this part of the appeal. I see nothing improper in Crown counsel providing trial counsel and his assistant with the relevant material, discussing the details of the allegations with them, and drafting affidavits responding to those allegations. To the contrary, this is what is expected of Crown counsel in most cases involving allegations of incompetent representation at trial where trial counsel denies that incompetence.

[156] Trial counsel was not a party to the appeal. He could not be expected, as counsel for the appellant suggests, to know how to respond to the appellant’s material in a way that would address the issues that would be of concern to this court. Trial counsel and his assistant were potential witnesses. In my view, they were entitled to the assistance of Crown counsel in fashioning their response to the allegations made against trial counsel. Trial counsel and his assistant remained ultimately responsible for the contents of those affidavits. They did not in any way back away from that responsibility during their cross-examination.

[157] Crown counsel, through a process of meetings and communications with trial counsel and his assistant, fashioned affidavits that were responsive to the appellant’s allegations and to the issues that Crown counsel knew would be relevant to this court’s consideration of the appellant’s claim. In performing this role, Crown counsel acted for the Crown, the respondent on the appeal. He provided no legal advice to trial counsel or his assistant, and performed no other function for them that would justify the assertion that he appeared to be their lawyer. He acted as counsel for the Crown responsible for responding to the appellant’s allegations of ineffective assistance.

[158] The appellant next submits that the process by which the affidavits of trial counsel and his assistant were produced resulted in the conscription of trial counsel against the appellant, to whom trial counsel owed a continuing duty. Trial counsel was not conscripted or compelled by Crown counsel to do anything. Rather, trial counsel and his assistant cooperated with Crown counsel in preparing the Crown’s response to the allegations made by the appellant. This cooperation did not in any way violate any continuing duty of loyalty that trial counsel owed to the appellant. As Proulx and Layton write in Ethics in Canadian Criminal Law, supra, at pp. 224-25:

Virtually all jurisdictions recognize that a lawyer has the right to use or disclose confidential information to the extent necessary to defend against an allegation of wrongdoing. …

[159] Trial counsel was entitled, if not duty bound, to respond to the appellant’s allegations against him. Not only was he entitled to respond so as to vindicate his own personal and professional reputation, there was a real danger that this court would be misled if only the appellant’s version of the relevant events was before it. Counsel’s duty to the proper administration of justice required that he cooperate in placing before the court the full picture of the relevant events. Nothing in counsel’s affidavit goes beyond responding to the allegations of wrongdoing made against him.

[160] Counsel for the appellant next argues that Crown counsel’s conduct in the preparation of the affidavits effectively destroyed the evidence of trial counsel and his assistant. As I understand this submission, counsel contends that the affidavits are really Crown counsel’s response to the ineffective assistance of counsel argument and that by swearing the affidavits, trial counsel and his assistant were rendered incapable of providing their own response to the allegations of ineffective assistance of counsel. This argument fails on at least two levels.

[161] First, the affidavits are the affidavits of trial counsel and his assistant and Crown counsel’s preparation of the affidavits does not make them any less the affidavits of those who swore them. As Crown counsel correctly observes, the vast majority of affidavits filed in court proceedings are prepared by the lawyers or their staff who are responsible for filing the affidavit. Indeed, the receipt of evidence by way of affidavit would be hardly workable were affiants expected to prepare their own affidavits.

[162] The argument also fails because Crown counsel’s role in the preparation of the affidavits in no way inhibited appellant’s counsel from cross-examining trial counsel and his assistant so as to bring out any relevant events that may have been omitted from the affidavits. Counsel examined both witnesses at length and indeed argued before this court that he had adduced considerable relevant evidence that was not in the affidavits. Crown counsel’s role in the preparation of the affidavits did not inhibit effective cross-examination of the affiants.

[163] Counsel for the appellant also submitted that Crown counsel’s conduct in the preparation of the affidavits interfered with the procedural Protocol set down by this court where allegations of ineffective assistance of counsel at trial are made. I find nothing in Crown counsel’s conduct which is in any way contrary to, much less an interference with, the Protocol.

[164] The Protocol was established in 2000 after consultation with the Bar as a guideline to the perfecting of appeals involving allegations of ineffective assistance of counsel. It calls for a number of steps to be taken by counsel and for the oversight of the progress of the appeal by a case management judge. Paragraphs 11, 12, 14 and 15 of the Protocol clearly contemplate that trial counsel’s response to the allegations of ineffective assistance of counsel may be by way of affidavit filed on the appeal. Either party may elicit that affidavit. However, in the vast majority of cases where the appellant contends that his trial lawyer was incompetent, it will fall to the Crown to seek out trial counsel’s response. While trial counsel cannot be obliged to provide an affidavit, this court has certainly come to expect that trial counsel’s response to the allegations will be in affidavit form and will be subject to cross-examination by counsel for the appellant.

[165] The Protocol contemplates that the court will have before it all available information relating to the allegations of ineffective assistance of trial counsel. Trial counsel’s version of the relevant events is obviously crucial. This court expects that trial counsel will fully address the allegations made by the appellant. Where, as is usually the case, trial counsel and the appellant are at odds on the appeal, the court looks to the Crown, the only other party to the appeal, to ensure that trial counsel has had a full opportunity to meaningfully respond to the allegations. Meetings with trial counsel to discuss the allegations, review relevant materials and draft affidavits, are components of what the court regards as the Crown’s task where an appellant alleges that he was the victim of ineffective representation at trial.

[166] Crown counsel in this case followed the process contemplated by the Protocol. His industry ensured that a full response to the appellant’s allegations was available to the court and to counsel for the appellant for the purposes of cross-examination. Crown counsel’s conduct was exactly what this court expects of Crown counsel on such appeals and, in my view, facilitated the search for the truth as it related to the allegations of ineffective assistance of counsel. It was in no small measure due to Crown counsel’s efforts that this court had before it a detailed record allowing for a careful assessment of the allegations.[^5]

V

The Crown’s Sentence Appeal

[167] At trial, the Crown sought sentences totalling six years. The trial judge imposed sentences totalling four years. The Crown appeals, arguing that the trial judge erred in principle in treating the absence of violence, apart from that inherent in the sexual abuse, as a mitigating factor on sentence. The Crown also submits that having regard to the multiplicity of aggravating factors, the total sentence imposed is manifestly unfit.

[168] The trial judge’s reasons for sentence demonstrate an appreciation of the gravity of the offences and the many aggravating features of this case. The trial judge referred to the profound, long-term adverse effect of the appellant’s conduct on the victim. The trial judge also had to take into account the many positive features of the appellant’s background. He was and still is highly regarded by family and friends. The trial judge’s reasons for sentence represent a careful and conscientious attempt to apply the principles of sentencing to the difficult circumstances before him.

[169] In his reasons, the trial judge catalogued some of the aggravating and mitigating factors. He then said:

It is to be noted that except with respect to the shotgun incident at Tobermory [counts 3 and 4] no other sexual encounter between Mr. Archer and M.S. involved any violence towards the victim.

[170] I agree with Crown counsel that the absence of violence beyond the violence inherent in the sexual abuse of a child is not a mitigating factor: R. v. Stuckless (1998), 127 C.C.C. (3d) 225 at 241 (Ont. C.A.). If such additional non-sexual violence occurs, however, it is an aggravating factor. Consequently, the presence of such violence is relevant to the determination of the appropriate sentence. Although the reference to the absence of violence occurs immediately after reference to mitigating factors, I am reluctant to read the trial judge as giving the appellant credit for not coupling long-term sexual abuse with gratuitous or non-sexual acts of violence (other than in respect of counts 3 and 4). I read this passage as a description of the non-sexual acts of violence and a recognition that apart from the one instance, the appellant’s conduct was not made worse by non-sexual acts of violence. On this reading, there is no error in principle.

[171] The Crown’s second argument, that sentences totalling four years are demonstrably unfit having regard to the many aggravating factors is not without some merit. I think a trial judge could have imposed the six year sentence requested by the Crown. However, the mere fact that a trial judge on a proper application of the principles of sentences could have imposed a higher sentence does not mean that the sentence is unfit and warrants appellate intervention. There is no one correct sentence in the vast majority of cases, but rather a range of appropriate sentences. It is the trial judge’s function to determine where within that range the sentence should be fixed. Appellate courts must defer to that determination, absent an error in principle. Deference is rooted in no small measure in the trial judge’s primary role in the administration of criminal justice and in his or her close connection to the community where the offences occurred. As was said in R. v . M.(C.A.) (1996), 105 C.C.C. (3d) 327 (S.C.C.) at para. 91:

A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender’s crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at the same time taking into account the needs and current conditions of and in the community.

[172] In imposing sentences totalling four years, the trial judge spoke for the community in which he administers criminal justice on a day-to-day basis. I would defer to his assessment where it is within the appropriate range.

[173] I would grant leave to appeal the sentence, but dismiss the Crown’s sentence appeal.

VI

Conclusion

[174] I would dismiss all appeals.

RELEASED: “DD” “OCT 13 2005”

“Doherty J.A.”

“I agree K.M. Weiler J.A.”

“I agree R.G. Juriansz J.A.”

[^1]: Counsel for the appellant in his factum indicates that he is seeking leave to appeal sentence. No notice of appeal seeking leave to appeal sentence was ever filed. Counsel did not make any written or oral submissions in support of a sentence appeal. In my view, there is no sentence appeal by the appellant before the court. In any event, had the appellant appealed sentence, I would have dismissed that appeal for the reasons found in my dismissal of the Crown’s sentence appeal.

[^2]: The trial judge is not alone, however, in avoiding the language used in Starr. It does not appear in Justice D. Watt’s Ontario Specimen Jury Instructions (Criminal) (Toronto: Thomson Carswell, 2003) at Final Charge 13, p. 101.

[^3]: As to the appropriate instruction where a videotaped statement is admitted under s. 715.1, see Watt, Ontario Specimen Jury Instructions, supra, at Final Charge 30, p. 162.

[^4]: In oral argument, counsel for the appellant purported to resile from any allegations that Crown counsel had acted improperly. He maintained his position, however, that Crown counsel should not have been involved in the preparation of affidavits by trial counsel and his assistant. The difference between the written and oral submissions seems to be that in oral argument, counsel for the appellant was prepared to accept that Crown counsel acted as he did because he was unaware that it was improper.

[^5]: In holding that Crown counsel acted properly, I am not passing judgment on his contention that the draft affidavits were protected by some form of work product privilege. That issue is not before this court.