WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. L.C.T., 2012 ONCA 116
DATE: 20120222
DOCKET: C51614
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Laskin and Cronk JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
L.C.T.
Appellant
Joseph Wilkinson, for the appellant
Peter Scrutton, for the respondent
Heard: December 15, 2011
On appeal from the convictions entered by Justice Harry J. Keenan of the Superior Court of Justice, dated May 18, 2007.
O’Connor A.C.J.O.:
[1] On May 18, 2007, the trial judge convicted the appellant of four counts of sexual interference and one count of sexual exploitation.[^1] The appellant was sentenced to five years’ imprisonment. He appeals the convictions.
[2] The appellant seeks to introduce fresh evidence in support of his position that the complainant was part of a conspiracy to frame him. He also alleges that the assistance of his trial counsel (not Mr. Wilkinson) was ineffective, that the interpretation services provided to him at trial violated his s. 14 Charter rights, that the trial judge’s reasons for judgment were insufficient, and that the trial judge erred in his assessment of the complainant’s credibility.
[3] I would dismiss the appeal.
FACTUAL OVERVIEW
[4] I provide only a brief overview of the evidence here. I will set out more detail as needed in the course of my discussion of the grounds of appeal.
[5] The complainant, L.T., was 16 when she testified at the trial in 2007. L.T. testified that the appellant, who was her stepfather, began sexually abusing her when she was eight or nine years of age. The abuse continued until she was fourteen. The appellant lived with L.T. and her mother during most of the time period during which L.T. alleged abuse.
[6] L.T. recounted various acts of sexual abuse, including the appellant touching her chest and genital areas, oral sex, and one act of sexual intercourse. L.T. said she was not good at remembering specific times and dates, but placed the abuse in time relative to where she lived over the years.
[7] L.T. first disclosed the abuse to a counselor at summer camp in 2005 during a group discussion about families. The following month, she made a video statement to the police describing the abuse. She adopted the contents of the video statement at trial.
[8] Prior to the disclosure to the camp counselor, L.T. repeatedly denied that the appellant had abused her. She denied the abuse to her aunt, her mother, a worker from the Children’s Aid Society, and to a lawyer who was defending the appellant on charges of sexual abuse laid by the aunt.
[9] In 2002, the appellant was charged with sexually assaulting L.T.’s aunt during a time period included in the range over which L.T. subsequently alleged abuse. L.T. told the appellant’s lawyer that the appellant had not abused her. She agreed to testify to help the appellant at his trial. The charges against the appellant with respect to the aunt were eventually withdrawn at the request of the Crown.
[10] In 2002, L.T.’s aunt complained to the Children’s Aid Society that the appellant was abusing L.T. In the subsequent investigation, L.T. denied the abuse.
[11] L.T. testified that she did not tell anyone about the abuse before 2005 because she was ashamed, because she feared breaking the family apart, and also because the appellant had told her not to tell anyone.
[12] L.T.’s mother testified at the trial. She described a few incidents involving the appellant and L.T. that she viewed as suspicious only with the benefit of hindsight. She explained her non-intervention at the time of the incidents as being a result of her schizophrenia or the fact that she trusted the appellant.
[13] The thrust of the appellant’s defence at trial was that the evidence of L.T. and her mother lacked credibility and reliability. The appellant argued that L.T. had been telling the truth when she repeatedly denied abuse. She concocted the allegations against the appellant in 2005 at the urging of and in order to assist her aunt. L.T.’s mother was also involved in the scheme to falsely accuse the appellant.
[14] The appellant called an alibi witness relating to two of the counts in the indictment. The witness, who was surety for the appellant’s bail, testified that the appellant was living with him and his wife during the time period set out in those two counts. Thus, the appellant did not have the opportunity to commit the abuse alleged during that time period.
[15] The appellant did not testify.
[16] The trial judge concluded that L.T. was an honest witness. He accepted L.T.’s explanation for failing to disclose the abuse prior to 2005. He found that her inability to recall exact times and dates was understandable in light of the time that had elapsed before she disclosed the abuse. The trial judge rejected the appellant’s submission that L.T. was trying to assist her aunt in making the allegations against him.
[17] Despite accepting L.T.’s evidence, the trial judge acquitted the appellant on the two counts about which the alibi witness testified. The trial judge had a reasonable doubt with respect to the timing of those counts. However, in acquitting on those counts, the trial judge did not express any doubt about L.T.’s overall credibility.
ISSUES
[18] There are five issues:
(i) Is an audio tape recording made by the appellant admissible as fresh evidence?
(ii) Did the appellant’s trial counsel provide ineffective assistance and thereby cause a miscarriage of justice?
(iii) Did the interpretation services provided to the appellant at trial violate his s. 14 Charter rights?
(iv) Were the trial judge’s reasons for judgment insufficient?
(v) Did the trial judge err in his assessment of L.T.’s credibility?
Issue #1: The Audio Tape
[19] The appellant seeks to introduce fresh evidence in the form of an audio tape. He submits that the recording shows that L.T.’s aunt and mother colluded to fabricate false allegations of sexual abuse against the appellant in the past. This, he argues, supports his position that the mother’s testimony in this case is unreliable and therefore cannot be used to support L.T.’s allegations.
[20] The only evidence with respect to the origin of the audio tape comes from the appellant. In his affidavit on the fresh evidence motion, the appellant said the tape was made on June 4, 2003 after his arrest on the charge of sexually assaulting L.T.’s aunt. On cross-examination, he conceded that the arrest stemming from the aunt’s charge had happened over a year before the tape was recorded, and that the recording had actually happened on the day of his arrest on other charges. The appellant’s purpose was to record an incriminating telephone conversation between L.T.’s mother and her aunt when he believed they were plotting against him. He was not present at the time the conversations on the tape were recorded.
[21] The appellant says that the relevant part of the tape records one side of a telephone conversation between L.T.’s mother and some members of her family, including possibly L.T.’s aunt. The voice, which the appellant says is that of L.T.’s mother, is speaking in Mandarin. The appellant takes the position that the relevant part shows that L.T.’s mother is conspiring with the unheard persons on the other end of the conversation about the time frame during which L.T.’s aunt could claim that the appellant sexually assaulted her. It also includes details L.T.’s aunt could include in her allegations concerning certain identifying marks near the appellant’s genitals.
[22] The appellant says that he gave the tape to a friend in 2003. The friend made a copy and gave the original back to the appellant. In 2005, the appellant gave the original back to the friend.
[23] The appellant’s trial began on May 7, 2007. On May 16, after the evidence had been completed and closing arguments begun, a different friend of the appellant’s delivered two tapes to the appellant’s trial counsel at the courthouse. Counsel reviewed the tapes with a Mandarin interpreter, came to the conclusion that there was nothing relevant on them, and therefore took no steps to ask that the case be reopened.
[24] Trial counsel gave evidence in connection with the appellant’s allegation of ineffective assistance of counsel. He said that the appellant had told him about a tape in January of 2007. The appellant had told him that it was, in effect, a “smoking gun”. Trial counsel said he had asked the appellant for the tape during the period leading up to trial but nothing materialized until May 16. In his evidence on the fresh evidence motion, the appellant said that he had not discussed the tape with his trial counsel before May 16.
[25] The four-part test for the admission of fresh evidence on appeal is set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. To be admitted, the appellant must show that the evidence (1) could not have been obtained by due diligence before the trial (though this is not always required in the criminal context); (2) is relevant to a decisive or potentially decisive issue; (3) is reasonably capable of belief; and (4) if believed, could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[26] The appellant accepts that the tape could have been discovered by reasonable diligence before trial. He says, however, that the lack of diligence should not govern the fresh evidence analysis because it is explained by trial counsel’s incompetence. He also argues that the failure to exercise due diligence should give way to the importance of the tape to the result at trial.
[27] The appellant argues that, if admitted, the tape could be used to impeach L.T.’s mother by showing that she was involved in an earlier conspiracy to wrongly accuse the appellant of sexual assault. As a result, the appellant argues, a court would reject the mother’s evidence thereby removing any confirmatory evidence with respect to L.T.’s complaints of abuse. Thus, the tape could have affected the result at trial.
[28] I would not admit the tape as fresh evidence. In my view, the evidence does not meet the fourth Palmer criterion. The appellant has not established that, if believed, the tape and the appellant’s evidence relating to it, could reasonably be expected to have affected the result of the case against him.
[29] Importantly, the tape does not undermine L.T.’s credibility. It does not relate to L.T.’s complaints of sexual abuse. According to the appellant, the tape was made over two years before L.T. first complained of abuse.
[30] The tape also does not support an argument that L.T.’s evidence was part of a conspiracy with her mother to frame the appellant. Significantly, there was evidence that when the Children’s Aid Society apprehended L.T. on September 6, 2005, L.T.’s mother was supportive of the appellant, not L.T.
[31] At best, the tape could have been used to cross-examine L.T.’s mother and possibly undermine her credibility on the basis of an argument that if she conspired in 2003 to frame the appellant on the aunt’s charges, her evidence in L.T.’s trial should have been suspect.
[32] There are two difficulties with this argument. First, the meaning of the conversation on the tape is not clear. While it may be capable of the sinister interpretation urged by the appellant, it is also open to a more benign explanation. It is difficult to know what the impact, if any, of cross-examining L.T.’s mother on the tape would have been.
[33] Second, it is not apparent that the trial judge relied upon L.T.’s mother’s evidence in convicting the appellant. The trial judge discussed the mother’s evidence and noted that she had testified about some “examples of nudity and sexual impropriety”. However, the trial judge recognized that there were problems with the mother’s evidence.
[34] Importantly, the trial judge made strong and clear findings favourable to L.T.’s credibility. He concluded she was a truthful and credible witness. He did not link his finding of credibility to support gleaned from the mother’s evidence.
[35] In the result, I would not admit the fresh evidence.
Issue #2: Ineffective Assistance of Counsel
[36] The appellant argues that this court should order a new trial because the ineffective assistance provided by his counsel at trial may have caused a miscarriage of justice.
[37] When a claim of ineffective assistance is raised, the onus is on the appellant to establish (1) the facts that underpin the claim; (2) the incompetence of the assistance provided; and (3) the incompetent assistance resulted in a miscarriage of justice: R. v. G. (D.M.), 2011 ONCA 343, 105 O.R. (3d) 481, at para. 100; R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 59, leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347.
[38] Incompetence is determined by a reasonableness standard applied to the particular circumstances of the case: Joanisse, at pp. 60-61. Hindsight plays no role in the analysis. The competence assessment must be informed by a presumption in favour of competence.
[39] In assessing whether there has been a miscarriage of justice, an appeal court may consider the impact of the incompetence on the reliability of the result or on the fairness of the process by which the result was achieved: Joanisse, at p. 62. When an appellant alleges that trial counsel’s incompetence impacted the reliability of the result, the appellant must show that there is a reasonable probability that the appellant would not have been convicted but for the incompetence. Put another way, a reviewing court must be satisfied that the verdict cannot be taken as a reliable assessment of the appellant’s culpability: Joanisse, at pp. 63-64.
(a) The Audio Tape
[40] The appellant argues that his trial counsel was incompetent in the way he addressed the audio tape. In particular, he alleges incompetence because trial counsel (1) failed to take steps to obtain the tape before the trial; (2) failed to discuss the content of the tape with the appellant after he received it; and (3) failed to apply to re-open the case to use the tape at trial.
[41] I am not satisfied that the appellant has met the ineffective assistance test with respect to the tape.
[42] I do not accept that counsel’s conduct fell below the reasonableness standard in respect of his effort to obtain the tape before the trial began. On trial counsel’s evidence, the appellant told him about the tape approximately four months before the trial. Counsel subsequently asked the appellant for the tape, but the appellant did nothing. The tape only materialized after the appellant called his friend to ask that it be delivered to trial counsel. It is unclear what else counsel could have done to expedite this process.
[43] I am concerned somewhat that once counsel received two tapes on May 16, he did not ask the court for time to review them with the appellant. While it was obviously late in the day, such a request would have been appropriate and may have led to an application to re-open the case to further cross-examine L.T.’s mother on the basis of the relevant part of one of the tapes. However, it is by no means clear to me that the appellant would have been permitted to have the case re-opened.
[44] In any event, I do not find it necessary to decide whether or not trial counsel’s handling of the tape on May 16 constituted ineffective assistance. Assuming the trial judge had permitted the case to be re-opened and counsel to cross-examine L.T.’s mother on the tape, I do not think there was a reasonable probability that the result at trial would have been any different.
[45] I reach this conclusion for essentially the same reasons I concluded that the tape should not be admitted as fresh evidence.
(b) L.T.’s Allegation of Attempted Rape
[46] L.T. made a video statement to the police on September 7, 2005 about the alleged abuse by the appellant. Towards the end of her statement, she mentioned that she had been “almost raped” by a fellow student when she was in grade five. She said this occurred at school, in public and the teachers did nothing about it.
[47] The appellant’s trial counsel was of the opinion that there would be benefit in cross-examining L.T. about this incident. He reasoned that the allegation was demonstrably false because it was incredible that the teachers would have done nothing if they had seen what L.T. described. Trial counsel concluded that his cross-examination could have a devastating effect on L.T.’s overall credibility.
[48] The appellant submits that trial counsel was incompetent because he did not investigate the truth of L.T.’s “almost raped” claim before cross-examining her about it at trial. The appellant also submits that trial counsel’s cross-examination of L.T. about the incident was ineffective.
[49] I would not give effect to these arguments.
[50] The “almost raped” evidence related to a collateral matter. It had nothing to do with L.T.’s allegations against the appellant nor did it show a pattern of conduct by L.T. of bringing forward false claims about sexual abuse. She did not complain about the incident until she mentioned it at the end of her statement to the police in September 2005.
[51] Clearly, trial counsel thought about the issue with some care. He considered this court’s decision in R. v. Riley (1992), 1992 CanLII 7448 (ON CA), 11 O.R. (3d) 151, and determined he had a basis to cross-examine L.T. about the collateral incident. He decided that the best way to approach the issue was to have L.T. adopt the “almost raped” statement as true and then show that what she said was incredible. In closing argument, he would submit that L.T. had lied or seriously exaggerated the incident and was therefore not a credible witness.
[52] Trial counsel cross-examined L.T. on the issue without objection.
[53] In my view, the appellant’s criticism of trial counsel with respect to the “almost raped” issue is answered by what Doherty J.A. said in Joanisse. At p. 61, he pointed out that the reasonableness of counsel’s performance must be measured in the particular circumstances of the case at the point in time when counsel acted. He said:
The wisdom of hindsight has no place in this assessment. This approach also recognizes that in many situations counsel will have a wide range of options any of which, if taken, will constitute competent representation. Appellate courts must give deference to the choices made by counsel and the competence assessment must be informed by a perception in favour of competence.
[54] I think the approach adopted by counsel was reasonable. While he may have been overly optimistic about the potential impact of his cross-examination, I do not think that his decision not to investigate the incident before trial was unreasonable. To the extent there was anything to be made of the incident, the simple approach adopted by trial counsel of having L.T. confirm the allegation, including the surrounding circumstances, and arguing that her description was incredible was a reasonable strategy.
[55] Although it may be argued that trial counsel’s cross-examination on the issue was not as effective as it might have been, it does not, in my view, come close to warranting appellate intervention on the basis of incompetence.
[56] Appellate courts should be particularly cautious when asked to review counsel’s performance during a cross-examination. Cross-examination is often referred to as an art, for good reason. While careful preparation is no doubt essential, counsel are frequently required to make judgments in the moment about how to word the next question and whether to pursue an issue or leave it alone. In making decisions, counsel must be alive to the language used by the witness, the content of the answer, a witness’ demeanour, the likelihood of what the witness may say in response, and, importantly, the impact on the trier of fact of what has come out to that point and what may yet come out. Successful cross-examiners may adopt different approaches to similar situations. Frequently, there is not one correct way to cross-examine a witness on a particular point.
[57] I would not give effect to the appellant’s argument that trial counsel’s handling of the “almost raped” allegation constituted ineffective assistance of counsel.
(c) The Photograph
[58] About four months before trial, the appellant informed trial counsel that he had some unusual characteristics in relation to his genitalia, including not being circumcised and having odd coloured pubic hair and a scar near his testicles. The appellant wanted trial counsel to cross-examine L.T. about whether she had seen any of these unusual characteristics during the alleged sexual abuse.
[59] Trial counsel did not do anything to confirm what the appellant had told him. He did not cross-examine L.T. about the appearance of the appellant’s genitalia and closed his cross-examination. During the ensuing break, the appellant reminded counsel about this matter.
[60] On resuming, counsel asked the trial judge to allow him to re-open his cross-examination. The trial judge agreed. In answer to counsel’s questions, L.T. testified that she had not noticed anything unusual.
[61] At the end of the Crown’s case, counsel asked the court to assist him in making arrangements for counsel to go to the court cells to take a photograph of the appellant’s genitals. On examination in the cells, trial counsel concluded there was nothing remarkable about the appellant’s appearance. Nonetheless, he had a photograph taken.
[62] Once back in court, trial counsel told the court that there was nothing there and chalked the incident up to a misunderstanding on his part. He did not produce the photograph. In his evidence with respect to the incompetent counsel allegation, trial counsel conceded that when he came back to court empty-handed he was trying to do damage control. He went on to opine that the series of events did “incalculable damage to [the appellant’s] defence”. Counsel said he discerned a look of disdain on the trial judge’s face when he told the trial judge there was nothing there. Counsel thought that that the incident “helped get [the appellant] convicted”. He accepted that he was partially responsible for “the disaster”.
[63] This series of events could have been avoided if trial counsel had looked into the issue before trial or before cross-examining L.T. on the issue.
[64] In my view, the way trial counsel handled the issue fell below the standard of reasonableness. He should have made sure of his footing before starting down the path of cross-examining L.T. It was apparent that the issue could turn out poorly, as it did.
[65] The question remains, however, whether there is a reasonable probability that counsel’s shortcomings with respect to this issue affected the result at trial such that the verdicts can be said to be unreliable. In my view, there is not.
[66] Trial counsel expressed the view that the “courtroom disaster” played a role in the outcome. However, his view is not determinative. Rather, it is essential to look at the way the trial judge addressed the issue.
[67] When counsel returned to court after developing the photograph, he told the trial judge there was nothing there and that there had been a misunderstanding on his part. In effect, counsel took the fall. The trial judge recognized that the episode could be problematic. He addressed it immediately. He said: “It appears it [the photograph] has no relevance because the purpose of taking the picture, as I understand, was to cast some doubt on the evidence of the complainant”. He concluded by saying: “We will eliminate the consideration of the photograph and consider it to be a non-issue.”
[68] In his reasons for convicting the appellant, the trial judge made no mention of the photograph or of any of the events relating to the issue.
[69] The trial judge did not cause whatever problem there was. Indeed, he did everything that he could to address any possible prejudice that the episode would operate unfairly to the appellant. He said he was not considering it and then he did not.
[70] I am not satisfied that the photograph incident played any role in the trial judge’s ultimate conclusion. Thus, any shortcoming of the appellant’s trial counsel in this respect does not provide a basis for appellate intervention.
(d) The Decision Not to Testify
[71] The appellant argues that trial counsel also provided ineffective assistance in advising him that he need not testify at trial.
[72] First, the appellant argues that trial counsel vastly over-estimated the effect of his cross-examination of L.T. with respect to the “almost raped” incident and that this erroneous assessment led him to encourage the appellant not to testify. Trial counsel was of the opinion that his cross-examination was so successful that the trial judge was unlikely to convict on the basis of L.T.’s evidence.
[73] I do not accept this argument. No doubt trial counsel’s assessment of the impact of his cross-examination on the “almost raped” issue was overly optimistic. The trial judge paid little heed to this evidence in assessing L.T.’s credibility.
[74] However, even if counsel had not misjudged the impact of the “almost raped” evidence, it was most unlikely that he would have advised the appellant differently about whether to testify. Prior to the trial, counsel discussed with the appellant whether he would give evidence. Counsel had formed the opinion that the appellant would make a terrible witness. In his discussions with the appellant, counsel observed that the appellant was unable to answer questions clearly, that he would go off in tangents and that he was the “classic non-responsive witness”. Counsel gave the appellant his opinion. The appellant decided that he would not testify. As a result, the appellant re-elected trial by judge alone.
[75] At most, trial counsel’s assessment of L.T.’s evidence regarding the “almost raped” incident simply served to confirm the wisdom of a decision that the appellant had already made – he would not testify.
[76] The appellant also says that his decision not to give evidence was affected by the events surrounding the photograph. The concern, he argues, was that if he gave evidence, he would have been confronted with those events and his credibility undermined. Be that as it may, at best, the photograph incident only confirmed a decision that had already been made.
[77] In summary, I would not interfere with the judgment on the basis of the ineffective assistance of counsel arguments.
Issue #3: The Adequacy of the Interpretation Services
[78] The appellant required the assistance of a Mandarin interpreter at trial. He seeks to have fresh evidence admitted with a view to establishing that the interpretation services provided at trial were inadequate and breached his s. 14 Charter rights.
[79] The fresh evidence is found in two affidavits of the appellant and in the cross-examination on those affidavits. The appellant alleges that he could not understand parts of the evidence at trial. Some of the interpreters had accents that he could not understand and some of the interpreters were unable to keep up with the speed of the proceedings. As a result, he argues that his rights to be present at trial and have the proceedings interpreted were breached.
[80] I would not admit the fresh evidence. The appellant’s argument that his s. 14 Charter rights were breached has no chance of success.
[81] The appellant’s evidence about his inability to understand the interpreters lacks credibility.
[82] The appellant never mentioned anything about the alleged interpretation problems to his lawyer or to the court during the trial. The appellant’s trial counsel testified that the appellant did not mention any difficulties and that he, the counsel, was satisfied that the appellant understood the proceedings.
[83] I am also satisfied that the appellant never told any of the interpreters that he was having trouble understanding them. While his proposed fresh evidence is somewhat inconsistent on this point, it is significant that none of the interpreters reported to the court that the appellant was having difficulty. Moreover, the trial transcript reveals that on occasion interpreters spoke up if they were having difficulty in interpreting the evidence.
[84] Most tellingly, when during the sentencing hearing a Cantonese interpreter attended whom the appellant did not understand, the appellant told the judge in English that he could not understand. It is hard to imagine that the appellant would not tell his lawyer, the judge or an interpreter on other occasions if he had had the same problem.
[85] Finally, in respect of the interpretation services at trial, the appellant submits that he may not have been present when two of the interpreters were sworn. He argues that this breached his right to be present at his trial pursuant to s. 650 of the Criminal Code.
[86] I have reviewed the relevant part of the transcript. While it is not entirely clear, I think the better view is that the appellant was present when the interpreters were sworn. Moreover, the appellant has not sought to introduce fresh evidence indicating that he was not present at the time.
[87] I would not give effect to this argument.
Issue #4: Sufficiency of Reasons
[88] The appellant argues that the trial judge’s reasons were insufficient for two reasons.
[89] First, he says it was incumbent on the trial judge to reconcile the doubt he had with respect to the counts on which he acquitted with his findings of guilt on the other counts. I do not accept this argument.
[90] The trial judge’s doubt with respect to the two counts related to whether the offences occurred within the time set out in those counts. His doubt was not based on a concern that L.T. was not telling the truth about her memories of the sexual abuse. Throughout his reasons, the trial judge made it clear that he found L.T. to be an honest witness. In her evidence, L.T. said she could not be sure about times and dates. The trial judge found that this weakness was understandable in view of the long period of time before she disclosed the abuse.
[91] That the alibi evidence left the trial judge with reasonable doubt about the accuracy of L.T.’s testimony concerning the dates of two counts did not preclude him from finding reliable the allegations corresponding to the other counts for which there was no alibi evidence. That finding was open to him.
[92] Next, the appellant submits that the trial judge erred in failing to adequately address the inconsistency in L.T.’s evidence regarding the nature of abuse that occurred at the Dunn Avenue residence. The trial judge was alive to this issue and took into consideration the inconsistency in his overall assessment of L.T.’s credibility. I see no error.
Issue #5: The Assessment of L.T.’s Credibility
[93] The appellant submits that the trial judge erred in concluding that L.T. was credible by improperly taking judicial notice of two facts.
[94] I do not agree. First, the trial judge commented that the reasons L.T. gave for delays in reporting the abuse were the very reasons why young victims of parental abuse do not complain. L.T. had testified that she did not report the abuse for several years because she was concerned about the family break-up, she was ashamed and the appellant told her not to.
[95] Before making this comment, the trial judge had quoted extensively from the Supreme Court of Canada’s decision in R. v. D.D., 2000 SCC 43, 148 C.C.C. (3d) 41. In that decision, the Supreme Court referred to the same three factors as L.T. as reasons why young people delay in reporting sexual abuse. The trial judge’s comment flowed directly from that case. Moreover, the trial judge did not use L.T.’s reasons for delay as confirmatory or supporting evidence. Rather, he concluded only that those reasons were a neutral factor explaining the delay. He was entitled to take that approach.
[96] Second, the appellant argues that the trial judge erred when he observed that L.T.’s poor marks in school were a “classic symptom” of parental sexual abuse. The trial judge’s comment was made as an aside in the course of his discussion about why L.T. had not complained of the abuse, not as a reason for finding L.T. credible. I see no error.
[97] Finally, the appellant argues that the trial judge attached too much weight to L.T.’s demeanour in accepting her evidence. In one instance, he said “her credibility is established by her demeanour”. While the use of the word “establish”, taken alone, may indicate an over-emphasis on demeanour, the trial judge’s reasons read as a whole disclose consideration of all the appropriate factors in his assessment of L.T.’s credibility. The trial judge set out in some detail the arguments of the defence that challenged her credibility and addressed them. He found her evidence to be straightforward and clear.
[98] I would not give effect to this argument.
DISPOSITION
[99] For all the above reasons, I would dismiss the appeal.
RELEASED: “FEB 22 2012” “DOC”
“D. O’Connor A.C.J.O.”
“I agree John I. Laskin J.A.”
“I agree E.A. Cronk J.A.”
[^1]: He also found the appellant guilty of five counts of sexual assault but stayed those counts on the basis of the Kienapple principle.