WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…

111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…

112. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

DATE: 20060303

DOCKET: C41362 C41363

COURT OF APPEAL FOR ONTARIO

WEILER, BLAIR AND MACFARLAND JJ.A.

B E T W E E N :

C41362

HER MAJESTY THE QUEEN

Richard Posner

For the appellant

Respondent

• and -

R. W.

Roger A. Pinnock

for the Crown respondent

Appellant

A N D B E T W E E N:

C41363

HER MAJESTY THE QUEEN

Respondent

• and -

R. W.

Appellant

Heard: October 6, 2005

On appeal from the conviction by Justice Glenn D. Krelove of the Ontario Court of Justice dated April 30, 2003, and from the sentence imposed by Justice Glenn D. Krelove dated September 23, 2003. As well, on appeal from the conviction by Justice Peter H. Howden of the Superior Court of Justice dated May 14, 2003, and from the sentence imposed by Justice Peter H. Howden dated August 21, 2003.

MACFARLAND J.A.:

[1] The appellant appeals from the finding of guilt made against him in Youth Court on April 30, 2003 on two counts of indecent assault, one count of sexual intercourse without consent, one count of sexual intercourse with a female under fourteen years of age, and one count of sexual intercourse with his sister. In addition, the appellant seeks leave to appeal the disposition imposed of a twelve month custodial sentence.

[2] The appellant also appeals from his conviction in the Superior Court of Justice on May 14, 2003 on one count of sexual intercourse without consent, one count of sexual intercourse with a female under the age of fourteen, one count of sexual intercourse with his sister, one count of sexual assault, and one count of common assault. In addition, the appellant seeks leave to appeal the sentence imposed of four and a half years imprisonment.

[3] The primary ground of appeal advanced in both appeals is that of ineffective assistance of trial counsel which occasioned a miscarriage of justice. In the Youth Court proceedings the appellant also argues that the trial judge did not fairly assess the evidence of the appellant and of the complainant C.W.

1. Youth Court Proceedings

[4] In these proceedings the complainants alleged sexual misconduct against the appellant of an historical nature. With one exception, all of the alleged sexual misconduct took place at or near the appellant’s home when he was an adolescent. The allegations were made nearly two decades after the conduct was said to have occurred. It was the appellant’s position that when his sister, C.W., was questioned by the Children’s Aid Society (C.A.S.) about an incident where her son was reported to have sexually touched two female relatives, C.W. raised these complaints against him. The appellant maintained that she grossly exaggerated the details and extent of the appellant’s conduct to deflect the attention of the C.A.S. away from her son’s alleged misconduct.

[5] The complainant T.K. was a childhood neighbour of the appellant and C.W. She remained a friend of C.W. to the time of trial. She was contacted by police as a result of the revelations made by C.W.

[6] A third complainant, L.H., was a cousin of the appellant and C.W. In her youth she spent much time visiting at the home of the appellant and C.W. She too was contacted by police as a result of C.W.’s revelations and to the time of trial maintained a friendship with C.W. The appellant was acquitted of the charge in relation to L.H.

[7] It was the appellant’s position that the evidence demonstrated a substantial opportunity for C.W. and the two other complainants who remained her friends to collude with one another.

[8] The appellant admitted that as a child he had inserted his finger into C.W.’s vagina when their mother and father left them alone together in the family’s parked car adjacent to a hospital in Barrie, Ontario. He denied that he habitually molested her at their home, as C.W. claimed.

[9] T.K. claimed that the appellant forced intercourse on her in a van located near the family home. She claimed that she reported the incident soon after it occurred to her mother.

[10] The appellant denied that he had ever engaged in any sexual contact with T.K. He testified that he once caught T.K. and his own brother J.W. engaged in some sexual activity in the back of a van near the family home. His theory at trial was that T.K. reported an incident involving her and the appellant to her parents to cover up for J.W. and to diminish her own responsibility for the sexual encounter. The appellant was also in a position to tender evidence that T.K. had engaged in other historic sexual activity near the family home which could seriously have affected the reliability of her account of the sexual activity which formed the subject of the charges before the court. Because trial counsel failed to give notice of his intention to adduce this evidence pursuant to section 276 of the Criminal Code, the trial judge determined that the evidence could not be received.

The Evidence at Trial

[11] In addition to the three complainants, the Crown called T.K.’s mother C.G., and the appellant’s ex-wife D.Y. to give evidence at trial.

[12] The appellant’s defence consisted of his own evidence and that of his sister R.W.

a) Testimony of C.W.

[13] C.W. testified that she first reported the allegations of childhood sexual assault on her by the appellant in the course of being questioned by C.A.S. officials in relation to the conduct of her own son and daughter. She denied defence counsel’s suggestion to her that she had made the complaint against her brother, the appellant, to deflect attention from her son’s alleged sexual improprieties.

[14] C.W. testified that she is the second youngest of five siblings; the appellant, who is five years her senior, is the oldest. She described the rural location where she lived from age two to eleven or twelve. Her father ran his auto wrecking business from this location. At age eleven or twelve she moved with her family to a different rural location from which her father continued his business. The family lived together as it had before in a dwelling house located on the same parcel of land as the business.

[15] T.K. was a next-door neighbour where the family lived when C.W. was between the ages of two and eleven or twelve. The two were very close; C.W. said they were “like sisters”. C.W. testified that L.H. is a first cousin about her same age who often visited at the W. family’s residence.

[16] C.W. confirmed the details of the allegations against her own son. She testified that, during that investigation, her son said he had been sexually touched by the appellant’s daughter, J.W. C.W. said this was in large measure why she decided to pursue the allegation against the appellant.

[17] She testified to a number of incidents, including one which occurred in the family car when it was parked outside a hospital in Barrie, Ontario. In respect of that particular incident, she said:

[the appellant] jammed his fingers up inside me as hard as he could, which initially broke my cherry and I was covered in blood.

[18] C.W. claimed to have told her mother about the bleeding and her mother inquired as to what had occurred. She said after she told her mother of the incident, her mother took her and the appellant aside and told them such behaviour was unacceptable.

[19] Her evidence was that from the point when she was four years old the appellant was “always touching” her and “always had his hands down my pants”. She clarified that “always” meant once or twice a week.

[20] She testified that the first incident of sexual intercourse occurred when she was about eight years old. It occurred in a bathtub while the appellant, who would have been about thirteen at the time, bathed.

[21] She said while the family lived at the first house she estimated the appellant had sexual intercourse with her on fifteen or twenty occasions. In addition to the bathtub location, the incidents took place “all over the place”, including in a fort her brothers had in an old office that had belonged to her father located in a building beside the family home, and in different places in the house, including the room she and her sister shared and the appellant’s room.

[22] She said the sexual activity ended when her sister, R.W. turned 16 and left home. C.W. then moved into her sister’s room which had a lock on the door.

[23] She said she never told anyone of any further incidents after the one which occurred at the hospital because her mother did not do anything in response to that incident and there was no one else in whom she could confide.

[24] In cross-examination, C.W. said she had contacted the C.A.S. in 1999 and reported that the appellant had sexually abused his daughter but that the authorities did not act on these allegations.

[25] When counsel asked why she had not reported the incidents of abuse earlier, she responded that her mother ought to have done it when she was six years old.

[26] When confronted with the fact that she had not revealed the incident of sexual intercourse in the tub prior to trial, she claimed the police never asked her many details in her interview with them. There had been three interviews with the police and C.A.S.

[27] C.W. was cross-examined on her criminal record and her non-compliance with probation. She admitted that she had committed perjury at the preliminary inquiry into the Superior Court charges against the appellant when she said she had been compliant with the terms of her probation.

b) Testimony of T.K.

[28] T.K. testified that the police contacted her following C.W.’s allegations to the C.A.S.

[29] She said only one incident occurred between her and the appellant and it was during the summer when she was eight years old.

[30] She said she had been playing hide and seek with other children in the wrecking yard and hid in a van. She said the backdoor of the van opened and she saw the appellant. He put his hand over her mouth, removed her pants and underwear, and had sexual intercourse with her.

[31] T.K. said she went home and immediately reported what had happened to her mother. She said her mother checked her over and discovered vaginal bleeding. Her parents called the appellant’s parents. Later the same evening the appellant and his father came to her house and had discussions with her parents. She said her father did not want to have anything to do with the incident and he discouraged her mother from contacting the police.

[32] She says she discussed the incident with C.W. when she was in her thirties.

c) Testimony of C.G.

[33] C.G. is T.K.’s mother. She testified that she recalled an incident when T.K. was eight years old and related an incident of abuse involving the appellant. She said T.K. had told her that she had been playing hide-and-seek and that the appellant had taken her into the back of the van and had sexual intercourse with her. C.G. could not remember if there had been vaginal bleeding. She said her husband phoned the appellant’s father and that, as a result, the appellant and his father attended at the K. residence. She said the appellant’s father took the position that T.K. “was asking for it”. C.G. wanted to pursue the matter with the police. Her husband, however, did not want to ruin his relationship with the appellant’s father and her husband said they would simply “drop it” and not allow the children to play together anymore.

d) Testimony of D.Y.

[34] D.Y. is the former wife of the appellant. She testified that during their marriage the appellant spoke of an incident in a car while visiting at a hospital in Barrie. She said the appellant told her he had inserted a crayon into C.W.’s vagina.

[35] She said she reported this incident to police after attending at another trial involving allegations of abuse by the appellant on his daughter.

e) Testimony of R.W.

[36] R. W. is the sister of the appellant and C.W. She testified for the defence. She said she lived together with C.W. at the family home until she was 15 years old and C.W. was 12 years old.

[37] She testified that, some time before the trial, C.W. contacted her and told her she was “going to charge” the appellant. Defence trial counsel led evidence through R.W. that C.W. had asked her if she would be interested in pressing charges against the appellant as the result of an incident which occurred between R.W. and the appellant when they were children.

[38] R.W. testified in chief there had been an incident in the appellant’s bedroom where she and the appellant had disrobed and some touching and feeling occurred. R.W. said the appellant later apologized for the incident and she told police she had no interest in pursuing the matter. Later in cross-examination R.W. testified that the appellant had lifted her night gown, exposing her vaginal area and then inserted a crayon into her vagina.

[39] R.W. testified that, approximately 13 years ago, C.W. had spoken to her about the incident in the car at the Barrie hospital. C.W. told her that R.W. had been the person who cleaned up the blood. R.W. did not recall this ever taking place. R.W. did not recall C.W. ever speaking to her of any further incidents.

[40] R.W. also testified that the children were forbidden from playing in the motor home and she did not recall ever seeing children playing in the motor home.[^1]

f) Testimony of the Appellant

[41] At the outset of the appellant’s testimony, defence trial counsel brought a Corbett application: see R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670. This application related to the appellant’s single prior conviction for sexual assault.[^2] In his submissions to the court counsel exposed the nature of the conviction that he wished to exclude from the trial judge’s consideration when he said:

Well, I’d ask Your Honour to exclude the part of it that relates to the nature of the offenses (sic) that we are dealing with today which is similar to the nature of the offence on the record.

[42] The application was dismissed.

[43] The appellant testified that an incident had occurred in the family car when it was parked on a street near the Barrie hospital. The appellant testified that all of the W. children were in the car, and that he and C.W. engaged in “talking and touching and feeling and exploring”. He also said that he “rubbed her and entered her … with a finger”.

[44] The appellant testified that, as a result of his mother finding out about the incident, she gave him some books to read on childhood development and sexual behaviour and he was given a beating by his father.

[45] He also testified that the incident with R.W. did occur as she described it and that he was disciplined when his parents learned about it.

[46] The appellant denied any further inappropriate sexual activity.

[47] The appellant testified that he recalled an incident where T.K. was hiding in a van in the wrecking yard. He said that, as he approached the van, he heard noises that sounded like a struggle was taking place within the van. He opened the door and discovered T.K. inside with his brother J.W. He said they both appeared startled when he opened the door and both left the van. In cross-examination, the appellant testified that when he opened the van door T.K. was lying on her back with J.W. on top of her.

[48] In cross-examination, the appellant acknowledged that he attended at the K. residence that evening with his father and was blamed for the incident involving T.K. He testified that he accepted the blame and the resulting beating from his father to protect his brother, J.W.

Proposed Fresh Evidence

a) G. W.

[49] The appellant’s mother G.W. deposed that she was never interviewed by trial counsel either prior to or during the trial.

[50] During the time period when the alleged sexual activity is said to have occurred, she lived in the same household with the children.

[51] She said based on the proximity of the bedrooms in the house and her supervision of her children’s activities, C.W.’s allegations of ongoing acts of sexual intercourse are highly unlikely. She has also deposed that an alleged act of intercourse in the bathtub would have been highly unlikely, based on the rules and routine of the household with respect to bathing the children.

[52] In respect of the Barrie hospital incident, she did not remember there being any bleeding. She recalls her daughter reporting an incident to her and, as a result, G.W. admonished the appellant. G.W. said that C.W. did not, as a child, hesitate to report the misdeeds of her siblings.

[53] G. W. was also in a position to provide evidence of C.W.’s reputation for telling lies, her history of cocaine and alcohol abuse, as well as other psychological and behavioural problems. She was also in a position to offer evidence regarding C.W.’s persistent vindictive behaviour with respect to her family.

[54] The thrust of the appellant’s complaint is that he “insisted”, as he puts it in his affidavit filed on this appeal, that his trial counsel call his mother as a defence witness at his trial because she had important evidence to offer in his defence as outlined above.

[55] Trial counsel’s evidence was that he did not interview G.W. or call her as a witness because the appellant made it perfectly clear to him that his mother was “off limits” as a witness. As trial counsel put it in his affidavit:

In fact I had understood from Mr. W. that his mother, G. should not be approached as a witness on the trial itself because she felt she would be torn by conflicting loyalties. My impression from the information he provided to me was that she was essentially considered off limits as a witness, having regard to very difficult and emotional family situations and divisions which had gone back decades and were anticipated to proceed in the future.

[56] G.W. was cross-examined on her affidavit. In the course of her cross-examination she was asked if she remembered being contacted by Detective Barb Hoath, the police officer in charge of the investigation and being asked whether she wanted to give a statement. She could not recall.

[57] She was provided with a copy of a note of a conversation Detective Hoath made on May 22, 2002. The note read:

Not saying anything against either one of my children, I’m not going to court and you can’t expect a mother to testify against one of her children, to stake one child against the other.

[58] In relation to this note G.W. stated:

I don’t recall speaking to a – this person or saying this. I’m not denying that it could have been said, but I have no recollection of that.

and further:

It is possible that I could have said something like that.

b) R.W.

[59] R.W., the appellant’s sister, claimed the only time she spoke to trial counsel was for five or ten minutes before court on the day she was to testify. She did not have time in that brief meeting to alert him to the fact that there had been an incident of a sexual nature between her and the appellant. She was not properly prepared for testifying. She claimed to have had no opportunity to discuss with trial counsel C.W.’s drug and alcohol abuse, her reputation for mendacity, several improprieties between other members of the W. and K. families, and the sexually assaultive behaviour of her other brother J.W.

[60] R.W. deposed that she had knowledge of inappropriate sexual activity taking place between herself, C.W., T.K. and T.K.’s brother D.K.

[61] Further, R.W. shared a bedroom with C.W. during the time encompassing C.W.’s allegations against the appellant. R.W. deposed that she never saw any inappropriate activity take place in the bedroom and C.W. never reported any such activity to her. She was able to confirm that C.W. never hesitated to report the misdeeds of her siblings. She could corroborate the bathing rules of the household.

[62] In relation to the appellant’s complaints about the failure of trial counsel to interview and prepare his sister R.W. before putting her on a stand, trial counsel’s evidence is markedly different.

[63] In his affidavit, trial counsel deposed that he interviewed R.W. twice before calling her as a witness. Although trial counsel appreciated there was some risk calling R.W. because of the incident of inappropriate sexual touching between herself and the appellant, he concluded on balance there was value in so doing. He theorized that he could use C.W.’s attempt to recruit R.W. into supporting allegations against the appellant as some evidence in support of the claim of collusion between C.W. and the other complainants T.K. and L.H. He thought it prudent to lead evidence in chief in relation to the incident involving R.W. to neutralize the effect of it coming out on the Crown’s cross-examination. Counsel reasonably assumed C.W. would have informed the Crown about the incident.

c) The Appellant

[64] The appellant had deposed that he only ever met with his trial counsel at the courthouse, and that the meetings were always rushed. He deposed that his lawyer gave the impression of having little time for him and that he stepped into the witness box totally unprepared.

[65] The appellant claimed that on several occasions he told trial counsel that his mother had important and relevant information both in relation to the actual allegations and in relation to C.W.’s character and credibility.

[66] Trial counsel deposed that the appellant was aware that he did not have an office but rather practiced out of his home and knew that it would be necessary for counsel to meet with him at some other private and convenient location. This was not the first time counsel had represented the appellant in criminal proceedings. He had acted for the appellant in relation to similar charges tried before Montgomery J. in the Ontario Court of Justice in 2002.

[67] Trial counsel outlined the number of times he did meet with the appellant, the places where they met, and the duration of those meetings in his affidavit. His evidence in this respect varies greatly from that of the appellant. He also deposed that, although the appellant was aware that C.W. alleged one incident of sexual intercourse occurred in the bathtub of the family home, neither the appellant nor R.W. ever indicated to him that there were family rules in relation to bathing and the location of the bathroom which made it unlikely in their view that the incident had occurred there. He was never informed of the mother G.W.’s information.

[68] In certain respects the appellant’s claim of ineffective assistance of counsel turns on an assessment of the competing affidavits.

The Section 276 Application

[69] Mr. Grossman, counsel at trial, candidly concedes that although he was aware of the section, he inadvertently failed to serve the appropriate notice on the Crown prior to the Youth Court proceedings.

Analysis of Issues Relating to the Youth Court Proceedings

a) Was Trial Counsel for the Defence Incompetent?

[70] The appellant raises three main areas of alleged incompetence on the part of his trial counsel:

1. Trial counsel’s failure to interview an important witness;

2. His failure to take reasonably sufficient time to meet with the appellant and his defence witness in preparation for trial; and,

3. Counsel’s failure to bring a proper application under section 276 of the Criminal Code.

[71] The assessment of any claim of ineffective assistance of counsel must proceed on a foundation of deference. The analysis of counsel effectiveness is built on the presumption that his or her conduct was reasonably competent or, as Crown counsel put it in his factum, the competence assessment is informed by a presumption in favour of competence.

[72] The onus is on the appellant to show that the specific incompetence prejudiced the defence to the point that a miscarriage of justice may have resulted.

[73] A miscarriage of justice due to prejudice will be established when an appellate court is satisfied that, because of counsel’s incompetence, the verdict cannot be taken as a reliable assessment of the appellant’s culpability.

[74] The threshold for establishing ineffective assistance of counsel is high. It was enunciated by this court in R. v. Garofoli et al. (1988), 1988 3270 (ON CA), 41 C.C.C. (3d) 97 at 151 where Martin J.A. quoted with approval from Justice O’Connor’s judgment for the court in (1984) Strickland v. Washington, 104 S. Ct. 2052 at 2064.

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defence. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. [Emphasis added by Martin J.A.)

Martin J.A. further quoted Justice O’Connor at p. 2065:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defence after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134, 102, S. Ct. 1558, 71 L. Ed. 2nd 783 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.

Justice O’Connor was also quoted at p. 206:

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

[75] Here the allegations of ineffective assistance of counsel go to the reliability of the result. The appellant says he was convicted because of the shortcomings of his trial counsel. In the recent decision of R. v. Archer, 2005 36444 (ON CA), [2005] O.J. No. 4348 (C.A.) the burden on an appellant seeking to overturn a conviction on the basis of ineffective assistance of counsel was summarized as follows by Doherty J.A. at paras. 119-120:

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.) …

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. 298-9.

[76] Here the first two main grounds must fail because the appellant has not passed the first hurdle in Archer: he has not established the facts on which the particular arguments of ineffective assistance of counsel are based. He has not established on the record that he made the trial counsel aware of what he says is the important evidence his mother G.W. could have given in his defence. His evidence is totally at odds with that of counsel on this point. Further, the cross-examination of G.W. in relation to Detective Hoath’s note lends some credence to trial counsel’s version. On this point, the appellant fails to meet the burden.

[77] In relation to the allegation that trial counsel did not spend sufficient time with the appellant and his witnesses the evidence is again divergent. The appellant’s bald assertions are met with trial counsel’s detailed records of the number of meetings he had with the appellant and his witness before they testified.

[78] While another defence counsel may have engaged in more or different preparation, the record discloses that the appellant’s counsel met with the appellant a number of times – sometimes longer than others – to prepare him. The appellant fails to establish on balance that, had he met with trial counsel for longer periods, he would have been better prepared to give his evidence.

[79] The trial judge found that the appellant was not a credible witness. In his reasons he noted the following in respect of the appellant:

He was inappropriately argumentative and evasive, as well as hostile, in cross-examination. I find it incredible that he would accept the blame for his brother, J., when his father took him over to the K.’s. This, to me, just does not make sense. I reject the defendant’s denials of the accusations made against him by C.W., T.K. and K.H.

[80] In his affidavit, trial counsel stated that he specifically advised the appellant not to argue with the Crown. He was told to remain calm and warned that Crown counsel would try to anger him and that he should be alert to those efforts and not become hostile. The appellant did not follow the advice of his counsel in this respect and was not believed by the trial judge.

[81] As to the third ground, trial counsel candidly admitted that he erred in failing to serve timely notice on the Crown under section 276 of the Criminal Code. The trial judge refused counsel’s request for a brief adjournment to permit him to serve the necessary notice. That ruling by the trial judge is not challenged in this court.

[82] Trial counsel intended to lead evidence through R.W. that C.W. and T.K. had been involved in some sexual activity with T.K.’s brother D.K. when they were all young children. The intended purpose of such evidence was to cast doubt on the reliability of the evidence of T.K. and C.W.

[83] While trial counsel’s failure to serve notice would certainly constitute an error in judgment, it would not in my view amount to incompetence. The evidence of sexual activity with other persons is prima facie inadmissible under section 276(1) of the Criminal Code. Even if proper notice had been given, any suggestion the evidence would have been admitted is tenuous.

[84] On the whole, I am not persuaded that there is any reasonable possibility that the appellant did not receive a fair trial or that there is any reasonable possibility the verdicts could have been different. There has been no miscarriage of justice.

b) Did the Trial Judge Err in Assessing the Credibility of Witnesses?

[85] The record discloses that the trial judge referred to R. v. W. D., 1991 93 (SCC), [1991] 1 S.C.R. 742 and properly instructed himself on the principles which govern credibility in cases of sexual assault such as the one before him.

[86] He carefully considered the evidence of C.W. and specifically turned his mind to those elements of her testimony which may have detracted from her credibility before concluding that she was telling the truth. He also reviewed the evidence of the appellant and R.W. and detailed those elements of their testimony which he found unreliable. His findings are well-founded and amply supported in the record. I would not give effect to this ground of appeal.

c) Was the Sentence Imposed Appropriate?

[87] In all the circumstances, a total custodial sentence of twelve months was a fit and proper sentence. I would grant leave to appeal sentence but would dismiss the appeal.

2. Superior Court Proceedings

Issues

a) Was Trial Counsel for the Defence Incompetent?

[88] The sole ground of appeal in respect of conviction is that of an allegation of ineffective assistance of counsel.

[89] The charges against the appellant in relation to his sister are historical in nature, having occurred about two decades earlier. The charges are in essence a continuation of the conduct complained of in the Youth Court proceedings referred to above. The Youth Court proceedings concerned the appellant’s conduct up to his sixteenth birthday. Thereafter the charges fell to be dealt with in the Superior Court of Justice. The allegations of the appellant’s daughter, J.W., concerned relatively recent conduct on the part of the appellant.

[90] Two of the appellant’s complaints in relation to the conduct of his counsel mirror complaints made in respect of the Youth Court proceedings. Those complaints relate to trial counsel’s failure to call the appellant’s mother G.W. as a witness and his failure to take sufficient time with the appellant to prepare him to testify. For the reasons given above, the appellant does not meet the factual burden he bears in respect of both these complaints.

[91] One additional factor bears some comment in respect of the lack of preparation complaint. Although the Youth Court proceedings had been completed only weeks before, trial counsel did not provide the appellant with a copy of the transcript of his evidence in those proceedings before he testified in the Superior Court. That transcript was used by Crown counsel to cross-examine the appellant on an alleged inconsistency.

[92] Trial counsel deposed that he reviewed the transcript and saw nothing in it that required specific review by his client. He anticipated that the appellant’s evidence would again consist of an admission of a single sexual incident between himself and C.W. when they were children and would contain denials in respect of any other alleged sexual misconduct in the years thereafter. While trial counsel acknowledged in cross-examination that, in hindsight, the preferable course would have been to provide his client with the transcript for review, hindsight plays no role in the competence assessment. Trial counsel’s decision was a reasonable one at the time in all the circumstances.

[93] The appellant also submits that trial counsel prejudiced the appellant’s defence by adducing evidence of prior discreditable conduct on the part of the appellant. At the outset of C.W.’s evidence, the Crown sought leave to adduce similar fact evidence relating to incidents involving the appellant and C.W. which occurred prior to May 10, 1980. Leave was granted and the trial judge’s ruling in this respect is not challenged in this court.

[94] Trial counsel acknowledged that his initial questioning of C.W. as to the reasons for her delayed reporting was flawed. He concedes the open-ended nature of the question permitted the harmful response it received. In my view Mr. Grossman’s cross-examination of C.W. bordered on the incompetent. He had been the appellant’s trial counsel on two previous occasions, one of which occurred only weeks before, when his client was convicted of sexual offences. It is inconceivable that any competent defence counsel would, in these circumstances, ask C.W., who was also a complainant in one of the prior proceedings, how she knew the appellant was continuing to abuse. The question invited the witness to disclose the appellant’s previous convictions for sexual abuse. However while trial counsel’s conduct in this respect was incompetent, I am not persuaded that it in any way undermined the appearance of the fairness of the trial. The verdict would inevitably have been the same and there is no miscarriage of justice.

[95] The theory of the defence was that there had been some collusion between C.W. and J.W. C.W.’s allegations against the appellant had arisen in the course of the C.A.S. investigation into the conduct of her son which allegedly had involved J.W. The investigation (by the C.A.S.) of J.W. led to J.W.’s disclosure to the C.A.S. of her allegations against her father, the appellant.

[96] Trial counsel has deposed that he had in mind to use the inter-relationship of these allegations to undermine the credibility of both complainants. He concedes the proposed theory was not without potential risk.

[97] It was the appellant’s position throughout that C.W. possessed a high degree of animus toward him which trial counsel attempted to demonstrated before the jury. Further, he admitted to the two single incidents of inappropriate sexual conduct with each of his sisters C.W. and R. W. He denied emphatically any further such incidents with C.W. or anyone else. It was his position that C.W. had approached J.W. and recruited her to give evidence against him which he maintained was false.

[98] In my view, while the defence theory was fraught with difficulty, it was not beyond what might be considered within the parameters of a reasonable defence.

[99] The advancement of the collusion theory carried with it the exposure of the other allegations made against the appellant. Without the collusion theory however, trial counsel’s client was left with his bald denial and not much more. As such, despite the risk involved, it cannot be said that the advancement of the collusion theory amounted to incompetent action on the part of trial counsel.

[100] As well, the trial judge took steps to ensure that the evidence of the appellant’s prior discreditable conduct did not prejudice him. The trial judge gave particularly clear limiting instruction to the jury in the course of his charge as to the only use that could be made of the evidence of the appellant’s previous convictions. They were specifically and clearly cautioned that they must not engage in impermissible propensity reasoning. The warning was repeated.

[101] I agree with the Crown’s submission that a compelling indication that the trial judge’s limiting instructions to the jury negated any actual prejudice to the appellant is the fact that the jury acquitted him of one of the charged sexual offences relating to his daughter J.W. Had the jury engaged in propensity reasoning, it is highly likely they would have convicted the appellant of all alleged sexual offences against his daughter.

[102] Further, trial counsel’s decision not to seek severance of the Superior Court charges does not amount to evidence of incompetence when examined in light of the defence theory. If a severance application had succeeded, the jury would not have been exposed to the two sets of allegations against the appellant in the one trial. In view of the defence theory of collusion amongst the complainants, trial counsel’s position that it would have been impractical to separate one set of allegations from the other was reasonable.

[103] Trial counsel’s decision to allege collusion in this respect falls within the broad range of professional standards of reasonable skill and judgment.

b) Was the Sentence Imposed Appropriate?

[104] The appellant seeks leave to appeal his sentence to one that is fit in all the circumstances.

[105] The appellant was convicted of all three counts alleged against C.W. and of two of four counts against his daughter J.W. The charges involving C.W. included rape, incest, and sexual intercourse with a female under the age of fourteen.

[106] The appellant was sentenced in total to four and one-half years imprisonment. His crimes were of a serious nature and involved gross breaches of trust. I am of the view that the sentence imposed was within the appropriate range. The trial judge committed no error in principle and his sentence is entitled to deference in this court. We cannot interfere.

Conclusion

[107] I would dismiss both appeals in all respects.

RELEASED: March 3, 2006 “KMW”

“J. MacFarland J.A.”

“I agree K.M. Weiler J.A.”

“I agree R. A. Blair J.A.”

[^1]: One of the incidents involving L.H. was said to have occurred in the family motor home. L.H. and C.W. had been playing when the appellant was alleged to have entered and attempted to force sexual intercourse on L.H.

[^2]: On April 16th, 2002 the appellant was convicted by the Honourable Mr. Justice Montgomery of sexual assault on one K.P.