W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)
of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
CITATION: R. v. M.B., 2009 ONCA 524
DATE: 20090626
DOCKET: C45582 and C45607
COURT OF APPEAL FOR ONTARIO
Cronk, Armstrong and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
M.B.
Appellant
Timothy E. Breen, for the appellant
Deborah Krick, for the respondent
Heard: March 26, 2009
On appeal from the conviction entered by Justice Margaret Eberhard of the Superior Court of Justice on December 2, 2005.
Cronk and Armstrong JJ.A.:
[1] The appellant was convicted of the sexual assault of S.V. and sentenced to an 18-month conditional sentence, followed by three years' probation. He appeals from his conviction on the grounds that he was denied the effective assistance of counsel at trial, the trial judge erred by misapprehending the defence expert evidence at trial, and the trial judge further erred in her assessment of S.V.'s credibility. For the reasons that follow, we conclude that the appeal must be allowed.
I. BACKGROUND
[2] The appellant and S.V. became close friends at university during the fall of 2003. During the mid-winter school break the following year, S.V. planned to go snowboarding in Collingwood, Ontario. On February 18, 2004, while enroute to Collingwood, she stopped at the appellant's home in Barrie for a pre-arranged visit. S.V. and the appellant had dinner with two of the appellant's friends, R.D. and K.K., and the group then spent several hours drinking at "Fitzy's", a local bar, with a third friend of the appellant, D.C. S.V. claimed that before going to Fitzy's bar, the group went to a Tim Horton's restaurant and a pool hall with an individual named "John". The appellant denied that they had attended at the restaurant or the pool hall or that they had been with someone called "John".
[3] At the end of the evening, S.V. stayed overnight at the appellant's home instead of continuing on to Collingwood. As they had apparently done in the past as "platonic" friends, S.V. and the appellant slept together in the same bed. S.V. alleged that during the night, the appellant engaged in oral sex and unprotected sexual intercourse with her despite her protestations and lack of consent. The appellant admitted the oral sex but claimed that it was consensual. He denied that any sexual intercourse had occurred. The trial judge accepted S.V.'s version of events and convicted the appellant of sexual assault. She imposed an 18-month sentence, to be served in the community, followed by three years' probation.
II. ISSUES
[4] There are three issues on appeal:
(1) Was the appellant denied the effective assistance of counsel at trial?
(2) Did the trial judge misapprehend the defence expert evidence at trial of Dr. Joseph A. Zadra, a urologist?
(3) Did the trial judge err in her assessment of S.V.'s credibility?
III. ANALYSIS
[5] Of the issues raised by the appellant, we consider it necessary for the disposition of this appeal to address only some aspects of his claim of ineffective assistance of trial counsel and his allegation that the trial judge misapprehended the defence expert evidence led at trial.
(1) Ineffective Assistance of Trial Counsel
[6] An accused who is represented by counsel at trial is entitled to receive effective legal assistance. This entitlement is embodied in the constitutional protections afforded by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. In R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35, leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347, at p. 57, Doherty J.A. of this court explained:
Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice. This court is under a statutory obligation to quash convictions which are the product of a miscarriage of justice: Criminal Code, s. 686(1)(a)(iii). The accused who is the victim of a miscarriage of justice is entitled to at least a new trial.
[7] The burden of establishing ineffective representation at trial warranting appellate intervention rests on the accused. This burden is not easily discharged. Claims of ineffective representation by trial counsel are approached with caution by appellate courts. As Doherty J.A. observed in Joanisse, at p. 58: "It would be a rare case where, after conviction, some aspect of defence counsel's performance could not be subjected to legitimate criticism. ... Appeals are not intended to be forensic autopsies of counsel's performance at trial."
[8] This court has adopted a three-stage approach to the scrutiny of ineffective representation claims. Under this approach, in order to succeed in a claim of ineffective assistance of counsel at trial, an appellant must establish: (i) the facts on which the claim of incompetence is based; (ii) that the representation provided by trial counsel was incompetent (the performance component of the test); and (iii) that the incompetent representation resulted in a miscarriage of justice (the prejudice component of the test): Joanisse, at p. 59; R. v. P.(T.) (2002), 2002 CanLII 49360 (ON CA), 59 O.R. (3d) 577 (C.A.), at para. 19.
[9] In R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-29, Major J. of the Supreme Court of Canada observed that, in most cases, it is best to begin with an inquiry into the prejudice component of an ineffective assistance of counsel claim. If the appellant cannot demonstrate prejudice from the alleged ineffective assistance of counsel, it is unnecessary to address the competence of counsel at trial.
[10] The standard to be met in relation to the performance component of the test is one of reasonableness. Hindsight has no place in this assessment: see R. v. G.D.B., at para. 27; Joanisse, at p. 61. The prejudice component focuses on "the nature and seriousness of counsel's errors both from the perspective of the reliability of the verdict and the adjudicative fairness of the process leading to the verdict": Joanisse, at p. 62. Prejudice can be established if the appellant can show that there is a reasonable probability that but for the alleged incompetence, the result of the proceeding would have been different. A reasonable probability in this context is a probability that is sufficiently strong to undermine the appellate court's confidence in the validity of the verdict: Joanisse, at p. 64; R. v. Dunbar, 2007 ONCA 840, at para. 23. As Doherty J.A. indicated in Joanisse, at p. 64: "A reasonable probability is established when the reviewing court is satisfied that because of counsel's incompetence, the verdict cannot be taken as a reliable assessment of the appellant's culpability."
[11] The appellant argues that numerous acts or omissions of his trial counsel were incompetent and that these acts or omissions occasioned a miscarriage of justice. In support of this argument, he relies on fresh evidence, the admissibility of which is not disputed by the Crown, which includes an affidavit sworn by defence counsel at trial (not Mr. Breen), the transcript of the cross-examination of defence counsel on his affidavit, an affidavit sworn by the appellant, and the transcript of the appellant's cross-examination thereon.
[12] In our opinion, based on the fresh evidence, three of the appellant's allegations of incompetence are especially significant: (i) the failure to prepare the appellant for cross-examination on his statements to the police; (ii) the decision to call the appellant's friends, R.D. and K.K., as defence witnesses at trial; and (iii) the approach of defence counsel to the cross-examination of S.V.
(i) Failure to Prepare the Appellant for Cross-Examination on his Statements to the Police
[13] The appellant gave two videotaped statements to the police. The first statement, made prior to the appellant's arrest, was approximately one and a half hours in duration. The second statement, made at the time of arrest, was approximately 30 minutes in length. In his statements, the appellant provided a detailed account of his version of the events involving S.V. on February 18 and 19, 2004.
[14] In his affidavit filed on the fresh evidence application, defence counsel indicated that the Crown disclosure brief was provided to him on June 23, 2004 and that he subsequently gave a copy of the brief to the appellant for his review. The brief included a summary of what defence counsel described as the "exculpatory statement" of the appellant and various police officers' notes. No transcription of the appellant's statements to the police was contained in the brief.
[15] Defence counsel reviewed the appellant's videotaped statements to the police, as well as S.V.'s statement to the police and that of the appellant's brother, within approximately two weeks of his receipt of the Crown disclosure brief. Although he prepared summaries of the statements by S.V. and the appellant's brother, he did not prepare a summary or transcription of the appellants' statements, "as the statements were exculpatory and both were of considerable length". Nor did he take the steps necessary to obtain a copy of the videotapes or a transcript of the appellants' videotaped statements.
[16] The trial commenced about 15 months later, on September 26, 2005. The number of meetings held with the appellant by defence counsel to prepare for trial is unclear. However, the following facts are undisputed. First, the appellant was not provided with a copy of his statements to the police prior to trial. Second, defence counsel did not review those statements with the appellant at any time. Third, defence counsel never advised the appellant to review his statements to the police. Fourth, the appellant was never advised by defence counsel to refrain from discussing the Crown disclosure brief with his friends – including R.D. and K.K. – and to avoid any discussions with his friends regarding the events at issue. Fifth, after July 2004, defence counsel himself failed to again review the appellant's statements to police before trial. Sixth, prior to trial, defence counsel conceded the voluntariness of the appellant's statements to the police for the purpose of cross-examination by the Crown. Seventh, at a pre-trial conference held in December 2004, although Crown counsel confirmed that the appellant's statements would not be tendered as part of the prosecution's case, she also indicated that the statements would be used to cross-examine the appellant should he elect to testify at trial.
[17] When cross-examined on his affidavit, defence counsel said that he was not concerned that the appellant's statements would form part of the prosecution's case. Given the Crown's comments at the pre-trial conference, this was understandable.
[18] But defence counsel also admitted that he never turned his mind to the potential evidentiary use or significance of the appellant's statements, or to the need to prepare the appellant for cross-examination on them. He acknowledged that he simply did not consider the prospect that the appellant could be cross-examined on the statements by the Crown at trial. As a result, notwithstanding Crown counsel's clear warning about nine months prior to trial that the appellant could be subjected to cross-examination on his statements to the police, defence counsel took no steps to prepare the appellant for such cross-examination.
[19] At trial, after the appellant's cross-examination was well underway, Crown counsel suggested that he review his videotaped statements during a lunch break since she intended to question him on parts of his statements. Defence counsel agreed with this suggestion, as "[the appellant] hasn't ever seen them". In a later exchange with the trial judge, defence counsel indicated that he did not know where Crown counsel was going with her announced intention to cross-examine the appellant on his statements, indicating that it had been "a long time" since he [counsel] had reviewed the statements. In fact, it appears that he had not reviewed the statements for approximately 14 months.
[20] The appellant watched his videotaped statements at the courthouse that afternoon and the following day during breaks in the trial proceedings. As his cross-examination was then in progress, he did not have the benefit of consultations with his counsel while doing so. Nor did the timing of his review of the statements, given the length of the statements, permit thoughtful reflection by the appellant on their contents.
[21] The transcript reveals that Crown counsel cross-examined the appellant over two days before questioning him on the contents of his statements. In so doing, she elicited testimony from the appellant that contradicted several parts of his statements to the police. In other words, before the appellant was cross-examined on his statements and at least in part before he reviewed his statements, the foundation was laid by the Crown to argue that the appellant's trial testimony was inconsistent with his prior statements to the police regarding his version of events with S.V.
[22] Crown counsel cross-examined the appellant for a total of about three days. About 77 pages of the transcript are devoted to cross-examination of the appellant on his statements to the police. During this phase of her cross-examination, Crown counsel identified approximately 20 examples of inconsistencies and contradictions between the appellant's trial testimony and his statements to the police, many of which concerned critical facts in issue at trial. These included:
(i) whether the appellant was inebriated or drunk on the night in question;
(ii) whether S.V. acted normally in relation to the appellant in the days following her visit to Barrie;
(iii) S.V.'s actions while she was in bed with the appellant, including her alleged placement of a pillow over her face during oral sex;
(iv) the timing of S.V.'s departure from the appellant's home on February 19, 2004;
(v) whether the appellant told S.V. to stop when she allegedly began to initiate sexual activity;
(vi) S.V.'s statements to the appellant while they were in bed, including whether she verbally consented to oral sex and whether she told the appellant "I want you";
(vii) the appellant's claim that due to the alleged size of his penis, sexual intercourse with S.V. would be difficult or physically painful and injurious to her;
(viii) whether the appellant resisted sexual overtures by S.V. while they were in bed together;
(ix) whether the appellant became sexually aroused by S.V.'s actions in bed; and
(x) the appellant's suggestion that S.V. may have per-formed sexual acts on him while he was asleep.
[23] The transcript suggests that throughout this lengthy cross-examination, the appellant was caught unaware by the contents of his statements to the police on several occasions and that he frequently struggled to respond to the questions posed by Crown counsel. More than once, he was compelled to say that he had exaggerated or lied in his statements to the police. He also acknowledged that despite numerous earlier opportunities to do so during the course of his interviews with the police, it was not until virtually the end of his second statement that he alluded to what became one of the central planks of his defence at trial, namely, that sexual intercourse with S.V. could not have occurred without physical injury to S.V. (scarring, bleeding or ripping) due to the alleged size of the appellant's penis.
[24] It is the evidence of defence counsel on the fresh evidence application that until the appellant was confronted at trial with his police statements, defence counsel was unaware of any inconsistencies in the appellant's description of events to the police. Defence counsel testified that it was only with the benefit of hindsight that he appreciated that there was "some risk" for the appellant on cross-examination at trial on his statements to the police. In fact, there were substantial risks. On any objective reading of the transcript, this component of the Crown's cross-examination was nothing short of devastating to the appellant's credibility.
[25] This conclusion is confirmed by the trial judge's reasons. It is apparent from her reasons that the trial judge viewed the appellant's credibility as having been significantly undermined by his cross-examination on his statements to the police.
[26] As we have said, the trial judge rejected the appellant's testimony. She held that "[t]he main problem with [the appellant's] evidence is not that it was unsupported but that his testimony was itself flawed." In support of this holding, the trial judge relied on four factors: (i) inconsistencies between the appellant's examination-in-chief and his cross-examination at trial; (ii) inconsistencies between the appellant's trial testimony and his statements to the police; (iii) what the trial judge viewed as the lack of "an air of reality" in the appellant's description of his relationship with S.V.; and (iv) the appellant's demeanour and attitude towards S.V. while testifying at trial.
[27] In respect of the second factor, it was the trial judge's view that: (i) the appellant's evidence at trial was inconsistent with his statements to the police about (a) the amount of alcohol that he had consumed and his level of intoxication on the night in question; (b) the timing of S.V.'s departure from his home; and (c) whether the appellant was sexually aroused by S.V.'s conduct; (ii) the appellant included significant details of S.V.'s alleged conduct in his trial testimony that he had not mentioned to the police; and (iii) in contrast to the appellant's claim at trial that the large size of his penis presented a physical impediment to the sexual intercourse alleged by S.V., this claim and the facts supporting it were never clearly or fully disclosed to the police.
[28] Thus, the trial judge's reasons reveal that the inconsistencies and contradictions between the appellant's evidence at trial and his statements to the police were integral to her adverse assessment of his credibility. These inconsistencies and contradictions figured prominently in her rejection of the appellant's testimony.
[29] At least some of those inconsistencies and contradictions were significant. For example, at trial, the appellant testified that although he had been drinking on the night in question and had "a little bit of a glow", his physiological responses were not impaired and he was not inebriated. Indeed, at least initially, he specifically denied that he was drunk. Later in his testimony, he said that he was "slightly drunk". In contrast, he told the police that he had "a lot to drink", that he was inebriated, that he was "feeling no pain", and that he was drunk. If the latter description of his condition was accurate, it lent credence to the Crown's assertion that the appellant, while in a drunken state, had taken advantage of S.V.
[30] Similarly, throughout his trial testimony, the appellant was adamant that he was not physically attracted to or interested in any way in S.V. Nor was he sexually aroused or even slightly sexually excited by her on the night in question. Yet, when he was cross-examined on his statements to the police, he admitted that he had told the police that he was "getting turned on" by S.V. while they were in bed together. This, too, supported the Crown's theory that non-consensual sexual intercourse had taken place.
[31] Moreover, as we have mentioned, the appellant never clearly told the police that the sexual intercourse alleged by S.V. could not have occurred without physical injury to her due to the size of his penis. Yet, at trial, this claim was central to the appellant's defence.
[32] We acknowledge that nothing in the appellant's affidavit filed on his fresh evidence application specifically outlines what he might have done or said differently if he had been fully prepared to give evidence at trial. However, the transcript of his cross-examination at trial reveals a witness who was woefully ill-prepared to deal with questioning on his statements to the police.
[33] Preparing an accused for cross-examination at trial by having the accused review his or her prior statements to the police is not a simple matter of trial tactics. Rather, the valid purpose of such a review is to address the natural phenomenon of fading memories. Trial fairness may be compromised if testifying becomes little more than a memory contest.
[34] In this case, the appellant provided his statements to the police in April and May, 2004, about 16 months prior to the commencement of trial. Given this lengthy interval between the date of the statements and the date of trial, there was a clear need for the appellant to refresh his memory regarding his statements to the police. This case turned on credibility. It was therefore vital that the appellant be prepared to face cross-examination on his prior statements to the police. This did not occur.
[35] We also observe that because defence counsel did not have a transcribed copy of the appellant's statements in his possession, he was not positioned to ensure that the contents of the statements were accurately put to the appellant on cross-examination at trial. In at least one instance, Crown counsel – no doubt through inadvertence – arguably misstated the contents of the statements by suggesting that the appellant had not provided the police with any details of any conversation with S.V. that occurred prior to the oral sex. In fact, the appellant had told the police of some of S.V.'s statements while in bed.
[36] In our opinion, in all these circumstances, defence counsel's failure to ensure that the appellant was afforded a meaningful opportunity to review his statements in preparation for cross-examination materially prejudiced the appellant in his defence. Defence counsel's failure to obtain copies of the appellant's statements to the police for the appellant to review in preparation for giving evidence at trial fell below the prevailing standard of competence by counsel applicable in a case of this kind. The following observation by Doherty J.A. in Dunbar, at para. 24 is apposite:
[An] appellant may demonstrate prejudice [from ineffective representation by counsel] by reference to the trial record itself, by evidence filed on appeal, or by a combination of the two. ... Where the primary claim is that an appellant was not properly prepared to testify at trial, the appellant can demonstrate the prejudice...by showing from the trial record that he was clearly inadequately prepared for cross-exam-ination. [Emphasis added.]
This is such a case.
(ii) Defence Decision to Call R.D. and K.K. as Witnesses
[37] The appellant submits that defence counsel's decision to call the appellant's friends, R.D. and K.K., as witnesses at trial reflects professional incompetence and that their evidence contributed to a miscarriage of justice.
[38] It is generally unwise and inappropriate to second-guess trial counsel on decisions concerning the evidence to be led at trial in the defence of criminal charges. In the particular circumstances of this case, however, we are satisfied that defence counsel's ultimate decision to call R.D. and K.K. as witnesses was ill-advised and highly prejudicial to the appellant's defence. To illustrate the basis for this conclusion, it is necessary to review the background to R.D.'s and K.K.'s evidence in some detail.
[39] On June 22, 2004, the day before his first appearance in court, the appellant arranged for a fax to be sent to his counsel enclosing unsigned statements from R.D. and K.K. In his June 2004 statement, R.D. indicated that he spoke with the appellant on February 19, 2004, the morning after the visit to Fitzy's bar, regarding what had transpired between S.V. and the appellant. R.D. said:
The next day I spoke to [the appellant], after noting her actions toward him that evening, I had asked him if they had had sexual intercourse that evening after I had left. [The appellant] and I are best friends and have nothing to hide from each other. His response to that question was a definite no. He said he had no interest in [S.V.] in any romantic or sexual ways.
[40] In her June 2004 statement, K.K. stated:
The next day [the appellant] and I had a conversation [on an electronic messaging system], and I asked what happened with them that night after we left. He told me they fooled around and she wanted to have sex, but he couldn’t because they were both intoxicated and he would feel as if he was taking advantage of her because of her drunken state.
[41] Subsequently, in August 2004, R.D. and K.K. prepared a joint statement, with the involvement of the appellant. This statement focused on the movements of the appellant and his friends, including S.V., on the night of February 18, 2004 prior to the attendance at Fitzy's bar.
[42] During cross-examination on his affidavit filed on the fresh evidence application, defence counsel agreed that if R.D. and K.K. were contemplated as potential defence witnesses, it was "important that they not be tainted by any discussions with the client, the accused". Nonetheless, he confirmed that he had asked the appellant to contact R.D. and K.K. for the purpose of obtaining written statements from them of their recollections of the night in question. He said that he made this request to preserve their recollections at a time when he understood that the appellant had already spoken to R.D. and K.K. about the events at issue.
[43] Thereafter, as part of his ongoing efforts to persuade the Crown to withdraw the charge against the appellant, defence counsel provided the Crown with copies of R.D.'s and K.K.'s unsigned statements. Their August 2004 joint statement was furnished to the Crown at trial.
[44] Two matters relating to R.D.'s and K.K.'s statements and their subsequent evidence at trial must be emphasized. First, their statements contradicted the appellant's trial testimony in several important respects. At trial, the appellant maintained that he had told R.D. that he had oral sex with S.V. This disclosure is not reflected in R.D.'s June 2004 statement. Similarly, K.K.'s June 2004 statement does not refer to any disclosure by the appellant of sexual activity with S.V. apart from some "fool[ing] around". Indeed, fairly read, both statements suggest the opposite. Moreover, K.K.'s statement indicates that the appellant said that both he and S.V. were intoxicated and that S.V. was in a drunken state. However, at trial, the appellant testified that S.V. had not had a lot to drink and that she was "very sober". As we have said, he also suggested that he was only "slightly drunk" and that he was not inebriated.
[45] Defence counsel met with R.D. and K.K. on October 6, 2005 when the appellant was still under cross-examination. During this meeting, defence counsel did not ask R.D. and K.K. about any discussions with the appellant on the day after the attendance at Fitzy's bar. Ultimately, both R.D. and K.K. were called as defence witnesses at trial, apparently for the purpose of contradicting S.V.'s claim that the group, including an individual named "John", had attended at a Tim Horton's restaurant and a pool hall before arriving at Fitzy's bar.
[46] The appellant argues that, given the nature of their anticipated evidence based on their statements, the decision to call R.D. and K.K. as defence witnesses at trial posed significant risks for his defence. We agree. In light of the discrepancies between the contents of their statements – copies of which had been provided to the Crown – and the appellant's testimony, it was probable that R.D. and K.K. would be cross-examined on the statements made to them by the appellant after the event. This cross-examination could only serve to undermine the appellant's credibility and to establish one or more prior inconsistent statements by him.
[47] In fact, as might have been anticipated, when R.D. and K.K. did testify at trial, they were cross-examined on what the appellant had told them of his activities with S.V. during the night of February 18, 2004. Both witnesses contradicted the appellant's testimony on this important issue.
[48] In rejecting the appellant's evidence, the trial judge placed particular emphasis on the inconsistencies between R.D.'s testimony and that of the appellant. She stated:
It is quite significant that R.D. testifies that he and [the appellant] are close friends and keep nothing from each other. The day after the event, the two discussed S.V.’s visit. R.D. asked [the appellant] directly if anything had happened and he was either told nothing happened or they may have fooled around a bit. [The appellant] has testified that he performed oral sex on S.V. I find R.D. did not intend to include oral sex in his indication that [the appellant] may have told him they “fooled around” if indeed he told him they did anything at all. This indicates that [the appellant] was not being straight with his good friend. I can see no reason why [the appellant] would not have told R.D. about the oral sex if that had occurred as he described. It appears that [the appellant] was not disclosing what had happened when he could and would ordinarily have done had there been the oral sex as he described.
On the contrary, [the appellant] states he told R.D. “nothing happened other than oral sex. I gave her oral sex and that was it. R. and I are very open. We’re best friends. I would have told him everything.”
I find as a fact [the appellant] did not tell R.D. he gave S.V. oral sex. R.D., K.K. and J.B. [the appellant’s brother] were trying so hard to provide evidence supporting [the appel-lant’s] story, I cannot accept that this important detail would have been forgotten or overlooked if it occurred.
As I indicated earlier, innocent misrecollection is common but a falsehood [is] always serious in the assessment of credibility.
[49] Nor were the discrepancies between K.K.'s evidence and that of the appellant lost on the trial judge. The trial judge relied on those aspects of K.K.'s evidence that contradicted the appellant's testimony to support her rejection of the appellant's evidence. In her reasons, she observed:
K.K. also asked [the appellant]…the next afternoon if anything happened between him and S.V. He told her they fooled around and she wanted to have sex but he couldn’t because they were both intoxicated he would feel he was taking advantage of her because of her drunken state. I find a statement of this nature was made by [the appellant]. It is telling that, in their testimony, K.K. describes S.V. as drunk but [the appellant] doesn’t. Further, we know from [the appellant’s] testimony that there was oral sex so his statement to K.K. was a half truth at best.
[50] Moreover, rather than contradicting S.V.'s description of events leading up to her overnight stay at the appellant's home, the trial judge viewed R.D.'s and K.K.'s evidence as corroborating key aspects of S.V.'s testimony. In her reasons, the trial judge stated:
R.D.’s and K.K.’s evidence also had an inadvertent effect of supporting the evidence of S.V. on a key assertion of [the appellant’s] defence. Both confirmed that her initial plan had been to stop by before going to snowboard in Collingwood and R.D. states that they went to Fitzy’s, she wound up not going to snowboard and this was not established until she was here.
This is contrary to [the appellant’s] insistence that the overnight visit was planned well in advance and his insinuation that it had been S.V.’s intention all along to bed [the appellant] during reading week when she was broken up with [her boyfriend]. Moreover, this inadvertent support reduces the impact of the discrepancy between S.V. and [S.V.’s boyfriend’s] evidence. It can no longer be argued that the visit to Collingwood was always a pretext invented by S.V. to hide the truth from [her boyfriend] that she was pursuing and bedding [the appellant]. …The evidence from R.D. and K.K. has confirmed S.V.’s contention that leaving to go snowboarding was the planned trip that fell through as the events of February 18 played out.
[51] There is a second troubling aspect of the decision to call R.D. and K.K. as witnesses at trial notwithstanding the nature of their anticipated evidence. This concerns the circumstances under which their statements were obtained. Given the appellant's involvement with R.D. and K.K. in the preparation of their statements, Crown counsel argued that their evidence was fabricated and that it had been developed through collaboration with the appellant. On cross-examination on his affidavit, defence counsel acknowledged that if the appellant's involvement in the preparation of R.D.'s and K.K.'s joint statement became known, "There was a real downside to it."
[52] The trial judge, at least in part, accepted the Crown's argument that R.D.'s and K.K.'s evidence should be discounted on this basis. She said in her reasons:
Much of the evidence of R.D. and K.K. is challenged as collusion between them and [the appellant] to show that S.V.’s memory of the events was faulty and her account false.
Nothing could be more natural than friends discussing an evening they were all part of when one of them has been charged with a criminal offence for an event arising from it. In and of itself, the discussion does not establish collusion. However, in each of their testimony R.D. and K.K. conceded there were points in their joint statement that they did not themselves observe or remember but accept from one another’s memory. By the time the testimony of K.K. was complete, she herself emotionally deflated, it was patent that [the appellant] played a major role in the discussion that reconstituted the itinerary of the evening such that it was not independent support of [the appellant’s] evidence at all.
[53] Calling R.D. and K.K. to testify at trial was clearly fraught with danger for the defence. The potential advantage to the defence of leading evidence through R.D. and K.K. that contradicted S.V.'s claim of a trip to a Tim Horton's restaurant and a pool hall prior to the arrival at Fitzy's bar on the night of February 18, 2004 pales to insignificance in comparison with the risks to the appellant's credibility that forseeably would arise on cross-examination of R.D. and K.K.
[54] Defence counsel admitted as much during cross-examination on his affidavit filed on the appellant's fresh evidence application when he said, "If I had it to do all over again, would I have called the two of them? Probably not, given how things unfolded."
[55] But this is not a case where the defence elected to call a witness who, in hindsight, simply did not fare well on cross-examination. That is an everyday occurrence in respect of which counsel can neither be faulted nor held responsible.
[56] This is a case where R.D.'s and K.K.'s anticipated evidence was known in advance by both the defence and the Crown. Based on their June 2004 statements, that evidence contradicted the appellant's version of events on several disputed factual issues. Moreover, the appellant's involvement in the preparation of R.D.'s and K.K.'s statements exposed him to a claim of collusion – a claim that eventually, at least implicitly, was accepted by the trial judge.
[57] We conclude that if R.D. and K.K. had not been exposed to cross-examination by the Crown, it is highly likely, if not inevitable, that the trial judge's assessment of the case against the appellant and his credibility would have proceeded on a much different basis. This, too, calls the reliability of the verdict into serious question.
(iii) Defence Counsel's Approach to the Cross-Examination of S.V.
[58] Finally, we turn to the matter of S.V.'s trial testimony and defence counsel's approach to her cross-examination.
[59] S.V. gave several statements to the police in which she recounted the details of the appellant's alleged sexual misconduct. As well, during her testimony at the preliminary inquiry held in this matter, S.V. again outlined the appellant's alleged assaultive behaviour. Finally, shortly after the incident in question, S.V. disclosed certain aspects of her encounter with the appellant to her boyfriend, P.H.
[60] Before this court, the appellant argues that defence counsel prejudiced his defence by failing to challenge S.V.'s credibility through cross-examination of her on her prior inconsistent statements. Again, we agree.
[61] It bears repeating that credibility was the central issue in this case. While defence counsel cross-examined S.V. at length, he failed to question her on several apparent inconsistencies and contradictions in her evidence, including:
(i) S.V.'s claim at trial that her decision to stay overnight at the appellant's home was made late in the evening on February 18, 2004, in contrast to her testimony at the preliminary inquiry that she brought a bag containing her overnight clothes into the appellant's home on arrival. The issue of when S.V. retrieved her overnight bag from her car was described as "critical" by Crown counsel in her closing submissions, since the timing of this event could support S.V.'s claim that she did not decide to stay overnight with the appellant until hours after her arrival in Barrie;
(ii) S.V.'s description at trial of a continuous sexual assault by the appellant, in contrast to her account to the police of the sequence of the same events;
(iii) S.V.'s depiction of the substance of her initial disclosure to her boyfriend, which was inconsistent with her boyfriend's account of the same disclosure; and
(iv) S.V.'s admission at trial that on at least some occasions she referred to the appellant in her online journal as "Mr. Sexy Pants", in contrast to her denial during her testimony at the preliminary inquiry that she had done so.
[62] During his cross-examination on his affidavit, when afforded an opportunity to explain his failure to cross-examine S.V. on these apparent inconsistencies and contradictions, defence counsel merely offered that he did not believe that there were any significant inconsistencies in S.V.'s accounts of the key events, either to the police or at the preliminary inquiry. In his view, S.V. had been consistent throughout regarding her allegation of sexual assault.
[63] It is impossible to gauge precisely on appeal the impact that cross-examination of S.V. on these issues may have had on the trial judge's assessment of her credibility. But the omissions above-described, in combination, suggest that less than a reasonably thorough challenge of S.V.'s credibility was mounted at trial on behalf of the appellant. Moreover, certain of the identified omissions are significant when viewed in the context of the reasons of the trial judge in support of her conclusion that S.V.'s claim of sexual assault had been established beyond a reasonable doubt.
[64] The trial judge devoted almost five pages of her reasons to the assessment of S.V.'s credibility. Absent from the list of factors identified by her as bearing on S.V.'s credibility is mention of any inconsistency between S.V.'s trial testimony and her account of events to the police, to her boyfriend, or at the preliminary inquiry. In her reasons, the trial judge mentions only one alleged prior inconsistent statement by S.V.
[65] To the extent that prior inconsistent statements by S.V. arose on the evidential record, they were clearly relevant to the assessment of her credibility. In at least one instance, the inconsistencies were also directly relevant to the evaluation of the appellant's credibility: P.H.'s evidence of the substance of S.V.'s disclosure to him of sexual activity with the appellant, in contrast to S.V.'s description of such disclosure, supported the appellant's claim that only consensual oral sex took place with S.V.
[66] Yet, as in R. v. P.(T.), defence counsel in this case failed, through incompetence, to alert the trial judge to material issues concerning S.V.'s credibility. S.V.'s prior inconsistent statements had significant potential for impeachment. Defence counsel's failure to exploit this potential prejudiced the appellant's defence and further undermines this court's confidence in the reliability of the verdict at trial.
(iv) Conclusion Regarding Claim of Ineffective Assistance of Counsel
[67] When these errors by defence counsel are considered together, we are persuaded that the appellant has established prejudice due to the ineffective representation by trial counsel sufficient to undermine the reliability of the verdict at trial. In our opinion, but for the errors of defence counsel that we have mentioned, there is a reasonable probability that the result at trial would have been different.
(2) Defence Expert Evidence
[68] The appellant also submits that the trial judge erred by misapprehending the defence expert evidence led at trial. Again, we agree.
[69] The defence called evidence from Dr. Joseph A. Zadra, a urologist, who testified as to the appellant's large penis size and the implausibility of S.V.'s version of the alleged intercourse. Dr. Zadra testified that the appellant's erect penis was more than 8 inches long and 6-1/2 inches in girth. It was well above the 95th percentile for adult men. The average size of a vagina of a young woman who had not yet experienced vaginal child birth, according to Dr. Zadra, is 6 inches in depth, maximum. The doctor said that it would be extremely difficult for such a woman to have vaginal penetration without artificial lubrication and an extremely gentle approach because of tearing and damage to the vagina, especially at the entrance. Such intercourse would be extremely painful.
[70] S.V. had not experienced a vaginal child birth. She did not complain of pain and when she was medically examined a week later there was no evidence of tearing or damage to her vagina.
[71] After stating in her reasons that Dr. Zadra gave "reliable evidence", the trial judge said:
Despite Dr. Zadra’s opinion concerning the difficulty of penetration, I do not find that S.V. would necessarily be bleeding and scarred. There is no evidence of S.V.’s indiv-idual measurement. She is 5’10” tall and I have no evidence to find that she is average or not. That disproportionate insertion would cause bleeding and scarring in some or even most is not determinative of whether it would cause bleeding and scarring in S.V.
I am troubled by the lack of report by S.V. of any discomfort related to size. She did report pain due to lack of lubrication and “friction” but that description could be expected for a forced penetration by a penis of lesser size. She did report that she [did not] focus on the pain, being preoccupied with the shock at the enormity of the betrayal. She testified she felt nothing as she was thinking about what was happening not how it felt, that she felt sick to her stomach.
S.V. was never asked about penis size although her testimony of the event included that when he placed her hand on his penis he stated “mine’s still bigger” meaning than her wrist and referencing a prior occasion when he grabbed her wrist and stated “mine’s bigger” which in the context she assumed meant his penis. There is a rule of evidence that if there is no cross-examination of a Crown witness on an issue and the defence leads evidence to contradict that evidence, the trier of fact may take the failure to challenge on a significant matter into account in assessing the credibility of the witness and the contrary evidence. In the specifics of this case, since she was not asked, we cannot know if S.V.’s description of the discomfort she experienced would have focused on this aspect. We know that [the appellant] didn’t mention size until he had been asked several times about the event and possibly, like him, S.V. did not appreciate that size, large or small, had any bearing on the issue of what happened.
[72] Counsel for the appellant submits that the trial judge's reasons exhibit a misapplication of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). Arguably, the circumstances here do not present the typical Browne v. Dunn situation. Even if it could be said that defence counsel at trial should have put the doctor's evidence to S.V., the Crown could have done so in her re-examination of S.V., which was not yet completed. Also, the Crown had received the doctor's report prior to trial and was not in any way taken by surprise by the evidence. Before the doctor was called to testify, the trial judge received submissions from both counsel concerning the anticipated evidence. It is significant that counsel for the Crown did not raise the Browne v. Dunn objection in those submissions and waited until final argument to raise the point.
[73] Given that the purpose of the rule in Browne v. Dunn is to promote fairness in the trial process, we do not discern any unfairness in the leading of the expert evidence and the failure to put it squarely to S.V.: see R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont. C.A.), at p. 376 where Finlayson J.A. said:
Browne v. Dunn is a rule of fairness that prevents the “ambush” of a witness by not giving him an opportunity to state his position with respect to later evidence which contradicts him on an essential matter. It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness’s evidence-in-chief, putting him on notice of every detail that the defence does not accept. Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness.
[74] However, there is another matter of concern related to the trial judge's treatment of the expert evidence. The trial judge observed that there was a lack of evidence concerning the size of S.V.'s vagina and the likelihood of bleeding and scarring in her case. As submitted by counsel for the appellant to this court:
[T]he relevance of Dr. Zadra’s evidence did not depend upon it affording “determinative” proof that [S.V.] would suffer bleeding and scarring if raped by the appellant. The evidence was capable of raising a reasonable doubt as to [S.V.’s] credibility on the issue of consent.
[75] The trial judge's reasoning in respect of this evidence suggests that she erred in the application of the burden of proof. Her observation suggested that the appellant was obligated to lead evidence concerning bleeding and scarring. No such obligation exists.
[76] Finally, we note that the trial judge said that she was "troubled by the lack of report by [S.V.] of any discomfort related to size". Although she reported "pain due to lack of lubrication and 'friction'", the trial judge said that this was consistent with "forced penetration by a penis of lesser size". The trial judge did say that a possible explanation was that S.V. said she did not focus on the pain as she was shocked by the circumstances of the alleged sexual assault. That said, the trial judge does not appear to have turned her mind to the issue whether the lack of report was capable of raising a reasonable doubt as to whether intercourse occurred.
[77] Based on the above, we would also give effect to this ground of appeal.
IV. DISPOSITION
[78] We conclude that the ineffective representation of the appellant at trial, together with the trial judge's flawed treatment of the defence expert evidence, outlined above, necessitate a new trial. In our view, the record establishes a reasonable probability that a miscarriage of justice occurred in this case. Accordingly, the appeal is allowed and a new trial is ordered.
RELEASED:
"JUNE 26 2009" "E.A. Cronk J.A."
"EAC" "Robert P. Armstrong J.A."
"I agree H.S. LaForme J.A."