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, and for greater certainty shall apply to the complainant and to any witness under eighteen years of age whose evidence was considered at trial or on the appeal. 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. P.G., 2013 ONCA 520
DATE: 20130821
DOCKET: C54825
Rosenberg, Juriansz and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
P.G.
Appellant
Alan M. Buchanan, for the appellant
John A. Neander, for the respondent
Heard: March 4, 2013
On appeal from the conviction entered on February 15, 2011 and the sentence imposed on December 5, 2011 by Justice Gregory M. Mulligan of the Superior Court of Justice, sitting with a jury.
Epstein J.A.:
I. OVERVIEW
[1] The appellant was convicted after a trial by judge and jury of sexual assault and was sentenced to twelve months imprisonment. He appeals conviction and sentence.
[2] In 2007, the appellant and the complainant met over the internet. That summer they saw each other once. They had sporadic contact by email and telephone over the following two years. There was no intimacy between them. In the summer of 2009, the complainant was experiencing personal difficulties. As a break from these difficulties, the appellant invited the complainant to have dinner with him and his twelve-year-old son on a boat the appellant was using.
[3] The appellant and the complainant socialized over drinks and then had dinner with the son. After dinner the appellant and the complainant retired to one of the berths in the boat. Sexual activity ensued.
[4] The prosecution turned on the issue of consent. The complainant’s evidence at trial was that the sexual contact was non-consensual. The appellant testified that the complainant actually initiated the sexual activity and participated in its escalation until it reached a point where she said stop. And he did.
[5] The material divergence of the evidence of the appellant and the complainant was what happened after dinner.
[6] According to the complainant, after dinner the appellant announced he was going to lie down and strongly urged her to join him. With some reluctance, she did. They went into one of the berths in the cabin of the boat and once they were on the bed, the appellant started to caress her. The complainant testified that she resisted but the appellant continued. He fondled and then sucked her breasts. The complainant’s evidence is that she started crying and pleaded with the appellant to stop. He ignored her resistance, put his hand down the front of her pants, undid her belt and put his finger into her vagina. He then got out of the bed, went to the foot of the bed and pulled her toward him. The appellant, not able to get the complainant’s pants off as she continued to struggle and try to stop him, put his mouth on her pubic area just above her belly before getting back onto the bed. The appellant rubbed his penis against her buttock. He then held her down until he seemed to fall asleep.
[7] When the appellant’s advances stopped, the complainant got out of the bed and moved to leave the berth, but the appellant stepped in front of her and blocked her way. After he eventually stepped aside, she went through the main cabin, past the son, to the head and cleaned herself up. Still upset, she returned to the main cabin where she found the appellant sitting with his son. Reluctantly, she had a cigarette with the appellant and tried to make small talk with the son. She then left the boat and hurried to her truck to leave. The appellant followed her suggesting that he had a great time and that they should pursue a relationship.
[8] The next evening, the complainant reported the matter to the police. In accordance with their direction, she went to the hospital where a sexual assault evidence kit was performed. On another visit to the hospital a few days later, photographs were taken of various marks on her body.
[9] In addition to the complainant’s testimony, the Crown called forensic biological evidence that indicated that the appellant’s saliva was found on the complainant’s clothing; specifically on her bra, jeans and sweater. The Crown also called a sexual assault nurse examiner at the hospital, who from her examination notes, described observing a five by four cm area on the complainant’s lower back where the skin was red.
[10] The appellant provided a different description of what happened after dinner.
[11] The appellant testified that the considerable amount of alcohol he had consumed, together with his diabetes, caused him to “hit the wall”. He told the complainant he had to lie down. He asked her if she wanted to come, and she followed him.
[12] According to the appellant, after they got onto the bed, the complainant started to snuggle and kiss him. He kissed her back and she became more passionate. The two continued to engage in foreplay during which time she undid her belt to provide access to her pubic area allowing him to massage her clitoris.
[13] The appellant testified that because of his medical problems and the alcohol he had consumed, he had no libido. He could not get an erection. Therefore, as the foreplay intensified, the appellant went to the foot of the bed to perform oral sex on the complainant. He kissed her stomach and pubic area at which point she said “stop”; he said “are you sure?”, and she said “yeah”. The appellant stopped and got back onto the bed. The complainant said “you are mad at me, aren’t you” to which the appellant said “no”, putting her hand on his genitals to demonstrate that he did not have an erection. The two then fell asleep.
[14] When they woke up they went to the main cabin and smoked a cigarette together. The complainant hugged and kissed the appellant and said goodnight to the son. The appellant then walked the complainant to her truck. They parted on good terms.
[15] The defence consisted of the appellant’s testimony and a vigorous attack on the complainant’s credibility. In his address to the jury, defence counsel argued, among other things, that the complainant’s version of events – including the circumstances in which she ended up on the bed with a man she barely knew, and why the appellant would force himself on her when his young son was but a few feet away – defied common sense.
[16] The son did not testify.
II. GROUNDS OF APPEAL
[17] The appellant alleges two errors arising out of the jury instructions: the explanation of the burden of proof and the jury’s use of the expert forensic evidence. In addition, the appellant seeks to introduce fresh evidence pursuant to s. 683(1) of the Criminal Code, R.S.C. 1985, c. C-46.
III. ANALYSIS
[18] I will deal first with the grounds of appeal arising out of the trial record. In my view neither of them warrants quashing the verdict.
(1) Jury Instructions
Burden of Proof
[19] The appellant’s main argument is that the trial judge erred in instructing the jury with respect to reasonable doubt. The trial judge was obliged, argues the appellant, to explain that proof of guilt beyond a reasonable doubt is much closer to absolute certainty than it is to probable guilt.
[20] The portion of the charge dealing with reasonable doubt is as follows:
The phrase, ‘reasonable doubt’ is a very important part of our criminal justice system. A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.
It is not enough for you to believe that [P.G.] is probably or likely guilty. In those circumstances you must find him not guilty because Crown Counsel would have failed to satisfy you of his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.
You should remember, however, that it is nearly impossible to prove anything with absolute certainty, Crown Counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.
If, at the end of the case, after considering all of the evidence you are sure that [P.G.] committed the offence you should find [P.G.] guilty of it, since you have been satisfied of his guilt of that offence beyond a reasonable doubt.
However, if, at the end of the case, based on all of the evidence or lack of evidence, you are not sure that [P.G.] committed the offence, you should find him not guilty of it.
[21] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, Iacobucci J. explained that one effective way to define the standard of proof is to explain that it is much closer to absolute certainty than to a balance of probabilities. However, it is clear that there is more than one effective way to explain reasonable doubt. Instructions that include the word “sure” together with the other aspects of the standard of proof description set out in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at para. 39, have been held to provide the jury with the necessary standard of proof guidance. See: R. v. Hall (2004), 2004 CanLII 46216 (ON CA), 193 O.A.C. 7 (C.A.) at paras. 34-36 and R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.) at paras. 36-38. These decisions are dispositive of this argument.
[22] The appellant also challenges what is known as the W.D. instruction (see R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742). He concedes that the trial judge’s instructions followed the standard W.D. formula. He argues however, that in the circumstances of this case, one that is essentially a “she said, he said” case, the trial judge was required to do more than merely set out the W.D. formula.
[23] The following is the passage in the charge containing the W.D. instruction:
In this case [P.G.], the accused, testified, and I’m going to give you some instructions as a framework to assist you, and I may repeat this later in my charge.[^1] If you believe [P.G.]’s evidence that he did not commit the offence as charged, you must find him not guilty. Even if you do not believe [P.G.]’s evidence, if it leaves you with a reasonable doubt about his guilt or about an essential element of the offence charged you must find him not guilty of that offence.
Even if [P.G.’s] evidence does not leave you with a reasonable doubt of his guilt or about an essential element of the offence charged, you may convict him only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt.
[24] I do not agree with the appellant that this instruction would leave the jury incapable of properly determining whether the Crown had met the burden of establishing guilt. This was a straightforward case that turned on the jury’s assessment of the credibility of the accused and of the complainant. The purpose of W.D. is to assist jurors in precisely these circumstances.
[25] I add that while not dispositive, the errors now alleged about the instructions concerning the burden of proof are that the instructions were legally inadequate. According to Doherty J.A. in R. v. Austin (2006), 2006 CanLII 39077 (ON CA), 214 C.C.C. (3d) 38 (Ont. C.A.) at para. 14, in such circumstances trial counsel’s approval of the jury charge, and to a lesser extent his or her failure to object, will be a significant consideration on appeal. (See also: R. v. Carrière (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 59 (Ont. C.A.), and R. v. Johnson (2002), 2002 CanLII 44987 (ON CA), 166 C.C.C. (3d) 44 at para. 57 (Ont. C.A.).)
[26] In my view, the need for any special instruction in this case is belied by the fact that the appellant advanced no such position at trial.
[27] In any event, I am of the view that in relation to the standard of proof, the charge is unassailable in law.
[28] I would therefore not give effect to this ground of appeal.
Expert Evidence
[29] The appellant does not point to any error in the principles of expert evidence in the trial judge’s instructions. Rather, he submits that the trial judge erred by failing to advise the jury that the DNA evidence was not controversial – that it was, in fact, accepted by both the Crown and the defence. The argument is that this omission left the jury with the impression that this evidence supported the Crown’s case.
[30] I do not see any merit in this argument.
[31] The jury was instructed and repeatedly reminded that it was their job to weigh the evidence. It was open to the jury to view the DNA evidence as benign in the sense that it was consistent not only with both the appellant’s evidence and the complainant’s evidence that there was intimate contact between the two but also with the nature of that contact. It was also open to the jury to attach some significance to the DNA evidence in considering the Crown’s argument that the appellant, in order to explain away the evidence, concocted his version of what happened between him and the complainant.
[32] Again, I note that defence counsel approved of this aspect of the draft charge during pre-charge discussions and failed to object to the instructions at the conclusion of the charge. This failure weakens the complaint that the trial judge failed to give the jurors adequate assistance in their task of evaluating this evidence.
(2) The Fresh Evidence
[33] The fresh evidence the appellant tenders consists of an affidavit sworn by the son about his observations on the day in question. In addition, the appellant relies on his own affidavit and the affidavit of his trial counsel in support of the admissibility of the son’s proposed evidence. The Crown cross-examined all of the affiants.
[34] While the son is able to provide his recollection of what happened during the complainant’s visit on the day in question, in my view, the aspect of his proffered evidence most material to the issue of consent is his description of the circumstances under which the complainant and his father went to lie down and, more significantly, what took place just prior to her departure. As set out above, in these two areas, the evidence of the complainant and the appellant differ.
[35] The complainant testified that the appellant more or less told her to accompany him when he went to lie down. The appellant’s evidence was that he told her he needed to lie down, asked her if she wanted to join him, and she did.
[36] The son’s proposed evidence is that the appellant said he was going for a nap and the complainant said, “I guess I’ll join you”. Although this evidence differs slightly from his father’s, it would support his father’s version of events that it was the complainant who suggested that she accompany the appellant when he went to lie down.
[37] Of more significance, in my view, is the evidence about what transpired between when the complainant and the appellant emerged from the berth and when the complainant left to go home.
[38] The complainant testified that she was very upset when she left the berth and went directly to the head to clean up. She re-entered the main cabin, eager to leave but the appellant, who by then was in the cabin with his son, pressured her to have a cigarette with him. She talked briefly with the son and then after she finished her cigarette she left as quickly as she could. The appellant’s evidence was that after smoking a cigarette the complainant hugged and kissed him and said goodnight to his son. He then walked the complainant to her truck and they parted on good terms.
[39] Once again, the son’s proposed evidence differs somewhat from his father’s evidence at trial. The son does say that the complainant hugged and kissed the appellant before leaving. However, the son says that the complainant also hugged him (the son) as she left – something the appellant did not mention. Nonetheless, the son’s proposed evidence does support that of the appellant on the important issue of the complainant’s apparent state of mind, after she and the appellant came out of the berth.
Applicable Legal Principles
[40] Section 683(1) of the Code allows an appellate court to receive evidence on appeal "where it considers it in the interests of justice". The appellate court’s discretion to accept fresh evidence should be informed by the appellant's interests in pursuing his appellate remedies and by the interests of the administration of justice. Those interests include ensuring not only that verdicts are reliable but also that the appellate process is not routinely used to re-write the evidentiary trial record. To allow the process to be re-opened too easily jeopardizes the validity of all verdicts: R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449 at paras. 106-107; R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211 at para. 44.
[41] Admitting evidence on appeal of facts that were litigated at trial is very much the exception (R. v. M.(P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 at p. 411 (Ont. C.A.)) and is justified only in furtherance of the integrity of the process: Snyder at para. 44.
[42] In its recent decision in Snyder, drawing on both the well-known decision in R. v. Palmer and Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 775 and the more recent case of Reference re: Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321 at para. 92, this court at para. 45 described the admissibility of fresh evidence on appeal as an exercise in discretion involving the answer to three questions:
Is the proffered evidence admissible under the rules of evidence applicable to criminal trials? [the admissibility requirement]
Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict? [the cogency requirement]
What is the explanation offered for the failure to produce the evidence at trial and how should that explanation affect its admissibility on appeal? [the due diligence inquiry]
[43] The first two components of the test are directed at preconditions to the admissibility of fresh evidence under s. 683(1). Evidence that is not admissible under the usual rules of evidence governing criminal proceedings, or is not sufficiently cogent to potentially affect the verdict, cannot be admitted on appeal: Truscott at para. 93.
[44] This court’s judgment in Truscott at para. 93 characterizes the last component, often referred to as the due diligence requirement, not as a precondition of admissibility but as a factor that must be examined only if the evidence meets the other two preconditions. See R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516 at paras. 45-51, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 258. The explanation offered for the failure to adduce evidence at trial, or in some cases the absence of any explanation, can result in the exclusion of evidence that would otherwise be admissible on appeal: Truscott at para. 93.
Application of the Principles to this Case
[45] The first consideration – whether the son’s proposed evidence is admissible – can easily be answered in the affirmative. The son’s evidence that the complainant was in good humour after emerging from the berth and kissed his father and hugged them both is admissible under the rules of evidence. The evidence would be relevant, as it would be capable of supporting the appellant’s version of events and of impeaching the reliability of the complainant’s trial testimony.
[46] This takes me to the second question. Could the son’s proposed testimony, when considered in the context of the rest of the evidence, reasonably be expected to have affected the verdict?
[47] This court in Truscott at para. 100 described the cogency analysis in this way:
The cogency inquiry requires a qualitative assessment of the evidence proffered on appeal. That evaluation must measure the probative potential of the evidence considered in the context of the entirety of the evidence admitted on appeal and heard at trial. If the fresh evidence considered in this context could reasonably be expected to have changed the result at trial, the evidence is sufficiently cogent to justify its admission on appeal.... [Emphasis added.]
[48] The Crown’s primary resistance to the reception of the son’s evidence is that it is not sufficiently cogent to affect the verdict. The Crown points to inconsistencies between the son’s proposed evidence and the appellant’s trial evidence, which the Crown argues raise doubts as to credibility. The son’s affidavit suggests, and his cross-examination confirms, that from the time the complainant arrived to the time she departed he was either with the appellant and complainant or on the boat. This contradicts the appellant’s trial evidence – as well as the complainant’s evidence – that the son left, a few times, for twenty or thirty minutes. Similarly, in both a letter filed on sentencing and in his affidavit on the fresh evidence motion, the son states that the complainant hugged him before she left, in addition to hugging and kissing the appellant. But, in his trial testimony, the appellant did not mention this hug between the complainant and his son.
[49] The Crown also submits that the son’s questionable proposed evidence is incapable of supporting the appellant’s evidence, because the appellant’s evidence is itself inconsistent. First, in his statement to the police, the appellant made no mention that the son was present on the evening in question. Then at trial, as mentioned above, the appellant said nothing about the complainant’s giving the son a hug. After the son himself stated that she gave him a hug, the appellant now swears that his son is correct: before she left, the complainant did hug his son, as well as hugging and kissing the appellant.
[50] The Crown further submits that to be admitted, the proposed fresh evidence requires a higher degree of cogency as the decision not to call the son at trial was a tactical one. In making this submission, the Crown relies on the following evidence of the appellant’s trial counsel, under cross-examination on his affidavit filed in support of the fresh evidence application:
A: …. He had great faith in my skill as an advocate. He thought at trial -- he thought my cross-examination of [the complainant] went very well. And he thought that the jury was giving him signs that I was being listened to. And so he -- perhaps he was looking at things through rose-coloured glasses.
Q: He’s willing to take his chances without [his son].
A: I suppose.
[51] The Crown says that this evidence demonstrates that the appellant decided not to call his son as a witness as he was confident that the jury would find him not guilty.
[52] In determining whether the second test set out above has been met, the task is to assess the potential value of the son’s evidence, a task that involves an evaluation of the proffered evidence and the credibility of the witness. That evaluation is not for the purpose of determining the ultimate reliability and credibility of the evidence, but rather for the purpose of determining whether it is sufficiently cogent to warrant its admission on appeal.
[53] The qualitative assessment begins by identifying the purpose or purposes for which the evidence is admissible. As indicated above, the son’s evidence, if believed, is capable of corroborating the appellant’s evidence and impeaching that of the complainant. In my view, in the particular circumstances of this case, this purpose is particularly important since without the son’s testimony the Crown’s case depends almost exclusively on the jury’s assessment of the credibility of the appellant and the complainant. I view the DNA evidence and the photographs and the nurse’s description of the marks on the complainant as being of marginal value.
[54] The appellant is unable to demonstrate that the proposed evidence is credible. That said, I do not agree with the Crown that the son’s evidence is so lacking in credibility as to warrant its outright rejection. The situation is therefore similar to the one in Babinski where Rosenberg J.A. says, at p. 715, that “where the court of appeal, having fully reviewed the record, is unable to find that the evidence is not credible, even though it is unable to say that it is credible, the court must go on to consider” whether if believed, it could reasonably be expected to have affected the result.
[55] The question is whether the son’s evidence is reasonably capable of belief. I cannot say whether or not the proposed evidence is credible or reliable. I have not heard the trial evidence or seen the son testify and be cross-examined. What I can say is that in my view, while the inconsistencies and discrepancies emphasized by the Crown are relevant to credibility, they are insufficient to establish that the evidence is not credible as explained in Palmer, i.e. is not reasonably capable of belief. Even if, at a trial, the son’s evidence was not accepted as entirely credible or as credible in every respect, it may still be capable of affecting the verdict given its potential import on a decisive issue: the credibility of the appellant and the complainant on the issue of consent.
[56] In my view, the son’s proposed evidence meets the second criterion.
[57] The third question, the explanation provided for why the evidence was not adduced at the trial, is applied less strictly against an accused who appeals conviction than it is for other categories of appellants. For example, if the proffered evidence is sufficiently cogent to warrant an acquittal, fresh evidence should be received on appeal even though it was available at trial. However, if the evidence were available at trial but not led for tactical reasons, the cogency requirement takes on greater importance.
[58] In the circumstances of this case, the analysis of why the son was not called as a witness at the trial is complicated by the fact that he was available and able to testify. The appellant's explanation is that he was concerned that testifying would have been harmful for his son, particularly given the ongoing, high-conflict legal proceedings between the appellant and his son’s mother over custody and access arrangements.
[59] In his affidavit in support of the application to receive his son’s evidence, the appellant details the legitimacy of his concern. He says that the mother’s hostility toward their son’s potential involvement in the trial became apparent as the trial approached and then increased as the trial progressed. The appellant also attests to the fact that following the preliminary inquiry a family court hearing took place during which the presiding judge, apprised of the pending sexual assault trial, had admonished him for considering calling his son as a witness and even for having his son talk to the appellant’s lawyer.
[60] There is room for debate over whether the third test will be met where the evidence demonstrates that a child is available to testify at trial but, for some reason, may suffer harm if called as a witness in a trial involving one or both parents. In this case it is alleged that the potential harm would arise out of the fact that the child, at the time of the trial, was at the centre of high-conflict family proceedings. The debate would involve a number of considerations including the likelihood of the risk, the nature and degree of potential harm to the child and the quality of the evidence necessary to establish the risk.
[61] However, I am of the view that this debate does not have to be addressed in order to decide this appeal as I am satisfied that the third test is met.
[62] First, I am not prepared to accept the Crown’s argument that the decision not to call the son was a tactical one and that therefore the proposed fresh evidence must reach a higher level of cogency in order to be admitted.
[63] The testimony of the appellant’s trial counsel set out above, when considered in the context of all of the evidence relevant to the fresh evidence application, supports the appellant’s argument that his primary reason for not following his lawyer’s advice to have his son called as a witness was out of concern over the impact that testifying would have on his son. As the trial progressed, the appellant became more optimistic that the jury would return a verdict of not guilty. However, in my view the fact that this optimism influenced the appellant’s ultimate decision not to require his son to testify does not mean the decision was strategic. The evidence satisfies me that the appellant’s primary reason for deciding that his son should not be called as a witness – his son’s best interests – did not change. What changed were the implications of protecting his son from the consequences not only of testifying in a trial let alone one of this nature but also of being forced to do something that would likely exacerbate the legal difficulties in which he and his parents were involved. In these circumstances I do not view the decision not to call the son as a witness at the trial as amounting to a tactic that should affect the assessment of the admissibility of the proposed fresh evidence.
[64] As I see it, it would be contrary to the ends of justice not to receive the son’s proposed evidence. His testimony is effectively the only evidence relevant to the sole issue – consent – aside from that of the appellant and complainant. It is reasonably capable of belief. If it is believed or if it raises a reasonable doubt, the son’s evidence could well affect the outcome of a prosecution in which the appellant faces a serious charge that attracts serious consequences.
[65] In exercising this court’s broad discretion I would allow the application to admit the proposed fresh evidence.
IV. DISPOSITION
[66] Because this determination could reasonably be expected to have affected the verdict, the verdict can no longer stand.
[67] I would therefore allow the appeal, quash the conviction and order a new trial.
[68] Given this disposition, it is unnecessary to address the sentence appeal.
Released:
“AUG 21 2013” “Gloria Epstein J.A.”
“MR” “I agree M. Rosenberg J.A.”
“I agree R. G. Juriansz J.A.”
[^1]: The judge did indeed repeat these instructions, in virtually identical words, later in the charge, immediately before outlining the positions of the Crown and the defence.