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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. N.L.P., 2013 ONCA 773
DATE: 20131220
DOCKET: C53455
Weiler, Gillese and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
N. L. P.
Appellant
Brad Greenshields, for the appellant
Michael Perlin, for the respondent
Heard: October 17, 2013
On appeal from the convictions entered on October 1, 2010 by Justice P. C. Hennessy of the Superior Court of Justice, sitting without a jury.
Lauwers J.A.:
[1] The appellant was convicted of sexually assaulting D.N. contrary to s. 271 of the Criminal Code of Canada. He was also convicted of touching D.N. for a sexual purpose, being a person under the age of 16 years, contrary to s. 151(a) of the Code. He was acquitted of administering to D.N. or causing her to take a drug with intent to stupefy or overpower her for sexual purposes contrary to s. 212(1)(i) of the Code. The appellant was sentenced on January 19, 2011, to 20 months in jail.
[2] The appellant appeals his conviction. He abandoned the sentence appeal.
[3] For the reasons set out below, I would dismiss the appeal.
The Facts
[4] The appellant operated an automobile detailing business. On July 16, 2008, the complainant, D.N., then 14 years old, worked with the appellant detailing cars. Afterwards they went to dinner. The appellant testified that the complainant insisted on being paid that day. Since he had no cash with him, she had to go to his apartment. The complainant testified, however, that the appellant invited her to the apartment to learn how to make an appointment.
[5] It is common ground that the appellant lived with his parents in a small, two bedroom, open concept apartment. The appellant and the complainant spent 20 minutes or so talking with his parents at the kitchen table and then went into the appellant’s bedroom to look at paperwork for the business. The appellant spread the paperwork out on the bed and the two of them spent about 20 minutes looking it over.
[6] The complainant testified that the appellant then closed the door, opened the window and offered her marihuana. She smoked it and had a strong reaction, leaving her lying on the bed, feeling dizzy. The trial judge noted the following:
She described a sexual assault, where [the appellant] held her down by the shoulders and her arms, removed her jeans and underwear, removed his own jeans and had intercourse with her. [The complainant] said she felt weak and could not get [the appellant] off her, that she was in and out of consciousness and that she tried to say no. At some point [the appellant] got off her and she gathered her purse and left.
[7] The complainant did not report the incident to the police for several days.
[8] The appellant denied that the door to his bedroom was ever closed, that he and the complainant were in the bedroom for more than 20 minutes, or that they consumed marihuana in the bedroom. He denied any sexual activity.
[9] The appellant’s father refused to give a statement to police, telling an officer that “under no circumstances would he be involved in the case and secondly that he would not have his wife speak to the officer.”
[10] The appellant’s father did not testify at his trial. His mother had died by the time the trial took place.
[11] The appellant attacks the trial judge’s determination of credibility, which, given the wildly divergent narratives, is at the heart of the convictions.
The Issues
[12] The appellant raises four issues:
(1) Did the trial judge apply higher scrutiny to the appellant’s evidence than to the complainant?
(2) Did the trial judge conduct an acceptable reliability analysis of the complainant’s evidence?
(3) Did the trial judge err in drawing an adverse inference from the absence of the appellant’s father as a witness?
(4) Did the trial judge use the appellant’s failure to urge his father to speak to the police as a basis for rejecting his testimony, or as after-the-fact conduct probative of guilt, and thereby infringe his right to silence under s. 7 the Canadian Charter of Rights and Freedoms?
[13] The first two issues are different ways of challenging the credibility determinations of the trial judge, and are best addressed together. The second two issues are related and will be addressed together. The appellant has also brought an application to admit fresh evidence respecting his father’s absence as a witness. I will deal with that application in the course of resolving the last two issues.
1. Did the Trial Judge Apply Different Standards in Assessing the Evidence of the Appellant and the Complainant, and Did She Confuse Reliability and Credibility?
[14] The appellant complains that: “The trial judge accepted the ‘naïve’ complainant’s word without the need for any corroboration, while she approached the appellant’s evidence like a Vetrovec witness in the sense that it was unworthy of belief absent independent evidence to restore her faith in suspect testimony.” The appellant argues that the trial record shows that the trial judge “demonstrably applied different standards” in assessing the evidence.
[15] The test for assessing the validity of such a complaint was set by this court in R. v. J.H., 2005 253 (ON CA), [2005] O.J. No. 39 (C.A.). Doherty J.A. noted, at para 47, that such a complaint is often a “thinly veiled” invitation to this court to substitute its own credibility findings for those of the trial judge, and amounts to “an assertion that the verdict is unreasonable.” He added, at para. 59:
This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge's credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.
[16] The trial judge carried out a methodical assessment of the evidence. In her reasons, she first related the agreed upon evidence and then described the evidence of the complainant and the appellant in a straightforward fashion.
[17] In the structure of the trial judge’s reasoning, there are echoes of the jury instruction structure prescribed by the Supreme Court in W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758. She considered the evidence of the accused, which she did not believe on the critical issues. She also found that she was not left in reasonable doubt by his evidence. She considered the evidence of the complainant; although she did not accept all of the complainant’s evidence, she was convinced by it, and by the other evidence, of the appellant’s guilt beyond a reasonable doubt.
[18] The trial judge first assessed the appellant’s credibility, having regard to the internal consistency and plausibility of his evidence about his business. She noted that the appellant did not keep records, yet he appeared to have a comprehensive recall of the number of vehicles that he had serviced on July 16, 2008 when the police questioned him in late November of that year. But, in describing the course of the day, the trial judge observed that “he made a number of logically inconsistent statements.” The appellant’s evidence that he did not have enough cash on hand to pay the complainant was contradicted by his evidence about the number of the vehicles that he said that he serviced that day. As a result, he changed his evidence on at least two occasions to reduce the number of cars serviced. The trial judge described as “unbelievable” that the appellant would remember “how many cars he worked on that day and who paid in what way on a day that was otherwise unremarkable.”
[19] The trial judge rejected the appellant’s evidence about not having enough cash on hand to pay the complainant and requiring her to go to his apartment to be paid. The trial judge observed that “it is inconsistent to say you always pay cash at the end of the day if, in fact, you don’t keep your money at your place of business.” She also rejected the appellant’s innocent explanation of reviewing paperwork in his bedroom (because it had no table and chairs) as in the past he had twice reviewed work schedules with the complainant and her cousin at the kitchen table where there was room to spread paper out.
[20] The judge then turned to assess the complainant’s evidence. Her evidence-in-chief came in through interviews done in September and December 2008. She was cross-examined at trial.
[21] The trial judge described the complainant as “a rather naïve teenager but who nonetheless gave her evidence in a manner that persuaded me she had good recall and could relate the events of the day and the incident with a number of specific details.” Elsewhere she added that the complaint “gave her evidence in a straightforward way, not emotional, not embellished and without any sweeping allegations.” The complainant admitted that there were no inappropriate looks or conduct or words prior to the incident. She admitted agreeing that the price of her dinner would be deducted from her pay for the day. She admitted that she smoked marihuana with the appellant and was afraid to tell her mother about the assault because of that. She included many details in her testimony about the visit, including where people sat, where the clock was, and how she came to be at work that day. Her evidence was internally consistent.
[22] The trial judge also considered the complainant’s credibility in relation to two parts of the complainant’s evidence that the appellant argues were “totally unbelievable”.
[23] First, the appellant argued that the complainant’s evidence about the nature and duration of the sexual assault was not credible. The trial judge summarized the complaint’s evidence in her reasons:
[T]he complainant accepted in a review of the time lines that the sexual intercourse lasted over one hour and during that hour that [the appellant] was off of her for at least five minutes during which time, she could neither call out nor leave. She attributed her inability to make loud noises or to push him off to her strong reaction to marihuana.
[24] The appellant argues that the complainant’s evidence was not reliable, based on her ability to observe and accurately recall the events, “given the reported effects of the marihuana on her,” and argues that the trial judge confused credibility and reliability.
[25] In R. v. C.(H.), 2009 ONCA 56, Watt J.A. explained the difference between credibility and reliability, at para. 41:
Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).
[26] Another relevant authority is R. v. Sanichar, 2012 ONCA 117, [2012] O.J. No. 748 (C.A.), appeal allowed 2013 SCC 4. The Supreme Court adopted the reasons of Laskin J.A. who dissented in this court. He noted, at para. 72 of his decision:
[A]lthough credibility and reliability are distinct concepts, they both involve factual determinations that, as my colleague notes, attract significant deference from a reviewing court: see R. v. R.W.B. (2003), 2003 48260 (ON CA), 174 O.A.C. 198, at para. 9. An appellate court should not interfere with a trial judge's assessment of the reliability of a complainant's evidence simply because it would have arrived at a different result.
[27] The trial judge noted that there was no evidence about “the strength of the marihuana nor on the exact component of the substance smoked.” She noted that the appellant had admitted smoking marihuana with the complainant, although he said it was outside. The trial judge rejected the reliability argument in the following words:
Defence counsel argued that [the complainant’s] statement that the intercourse lasted an hour is completely unbelievable. I do not find that the complainant’s credibility is terribly damaged by her confusion over time. She repeated that she was drowsy and in and out of consciousness. She was a 14 year old girl, high on drugs who was not sexually active. That her time estimates with respect to the sex act are likely not accurate, does not immediately damage her credibility. I take into account her age and lack of sexual experience as she tried to relate what had happened and in particular, where certain body parts were for how long during a sexual assault. It was obvious in her interview with the police that she was sexually naïve.
[28] The trial judge focussed on the important issue, which was whether the sexual assault took place. She found that the complainant’s evidence was reliable on that point, even though the complainant might well have been mistaken about the duration of the assault. In my view, the trial judge adverted to and resolved the reliability issue. I am not persuaded that she erred in her approach or in the result.
[29] The second credibility issue raised by the defence was that “it is not believable that this incident could have taken place with the two […] parents in the next room.” The trial judge said:
This argument is a double-edged sword for the defence. Firstly, it is not unbelievable that some parents would accept that their 31-year-old son, coming home in the evening with a woman who he can then takes to his bedroom [sic]. There was no evidence that the parents knew the age or grade of [the complainant] in any event, the evidence shows that it was completely acceptable to them that their 31-year-old son took a very young woman into his bedroom, according to the accused for at least 20 minutes. That the visit could have continued for another hour or hour-and-a-half with the door closed is not any more unbelievable.
[30] The trial judge took the view that the appellant had orchestrated the evening to get the complainant to his apartment and into his bedroom for the purpose of engaging in sexual activity with her. She noted: the unlikelihood of the appellant’s story that he had no cash at work to pay her; that on the complainant’s two prior visits to the apartment with her cousin they had discussed business at the kitchen table, so there was no need to go to his bedroom to review the paperwork; and that the appellant gave the complainant marihuana in his bedroom.
[31] In my view, the trial judge carried out an adequate credibility assessment. She took account of the undisputed evidence. She considered the two competing narratives in light of the differences in the evidence of the appellant and the complainant, the internal inconsistencies in the appellant’s evidence and its plausibility, and basic common sense. She considered the ability of each witness to recall, the level of detail, and whether their evidence changed over the course of testifying, as the appellant’s plainly did. I reject the appellant’s argument that the trial judge based her assessment of the complainant’s credibility on demeanour alone. Credibility is an area where great deference is due to the trial judge. There is no basis for finding that she committed an error in principle.
2. Did the Trial Judge Err in Drawing an Adverse Inference from the Absence of the Appellant’s Father as a Witness?
[32] The appellant makes two arguments. The first is that no adverse inference should have been drawn by the trial judge from the appellant’s failure to call his father as a witness. The second is that the trial judge took the inference too far. In support of his adverse inference arguments, the appellant brought a fresh evidence application to introduce a medical explanation for his failure to call his father as a witness
(i) The Adverse Inference
[33] The trial context is critical to the assessment of the adverse inference issue. Very early in his evidence in chief, the appellant was asked how his father was doing. He responded that his mother had died and his father was dealing with that and “with a mental issue”. He testified that “it’s been with him for a period and ever since my mom has passed away things have been a little bit worse.” The appellant testified that his father’s difficulties involved hospitalization and medication.
[34] In the appellant’s cross-examination the following exchange occurred:
Q: Now sir, you indicated that your father is now dealing with a mental issue?
A: Yes he is.
Q: And do you have a medical report to offer the court today?
A: Yes. I could get that information if you need it.
Q: So you do have a medical report?
A: If you need it, we could get it.
Q: And so you are saying that your father is unable to come here to testify?
A: Yes.
[35] The trial judge made the following relevant comments:
[T]he parents did not give evidence at the trial. By the time of the trial, [the appellant’s mother] had passed away. [His father] however, was not called. The defence did not call evidence to give an explanation for this. Defence counsel did not canvass this issue in any way with the defendant. On cross-examination, the defendant said that his father was dealing with a medical issue, but he did not have a medical report. He suggested that his father could not testify. The defence did not say that his father was asked to testify or in whose opinion he was unable to testify. Nor did he specifically say that the medical issues were related to the father not being there.
I do not accept this brief remark as an explanation, affirmatively put forward by the defence that [the appellant’s father] was unavailable or unable to testify. If that were the case, I would have expected it to be specifically canvassed in the examination-in-chief of the defendant, or to be put to the court through medical evidence or other evidence.
[The appellant’s father] is the one person who could give somewhat independent evidence of how long [the complainant] was in the bedroom and whether the door was closed. [The father] was a critical witness for the defence as he was capable of corroborating the testimony of the defendant that the two of them were only in the bedroom for 20 minutes and that the door was open. As such, the unexplained failure to call him permits the inference that his evidence would not have supported the defendant’s testimony.
[36] The trial judge went on to instruct herself that she could not draw an inference of guilt from the failure of the defence to call a particular witness, citing R. v. Marshall, 2005 30051 (ON CA), [2005] O.J. No. 3549 (C.A.), R. v. Charette (1982), 1982 3738 (ON CA), 67 C.C.C. (2d) 357 at 359. She noted that the trier of fact “may only infer that, had the witness been called, his or her testimony would have been unfavourable to the accused.” She made the same comment twice more, and then reached the following conclusion:
If the adverse inference is that the complainant was in the bedroom behind a closed door for a period of time longer than the defendant had testified, the credibility of the defendant is weakened on the issue of opportunity. And it further allows me to find that the credibility of the complainant is not damaged therefore by the testimony of the defendant on that point.
I do not accept the defendant’s evidence of how long he was in the bedroom and whether the door was closed. The absence of otherwise available evidence leads me to the conclusion that [father’s] evidence would not [be] consistent with the defendant’s evidence.
[37] As noted, the trial judge found, that as the result of internal inconsistencies in the appellant’s own evidence, his “evidence does not leave with in any doubt [sic].” Later in her reasons, she stated that “the defendant’s evidence does not raise a reasonable doubt.”
[38] Neither the Crown nor the defence made any reference in their submissions to the trial judge about the absence of the appellant’s father as a witness, nor to any inferences that might be drawn. The trial judge’s chain of reasoning leading to the adverse inference was entirely her own.
(ii) The Fresh Evidence Application
[39] The appellant brought the fresh evidence application to displace the trial judge’s adverse inference by providing a medical explanation for his failure to call his father as a witness.
[40] The application relies on the affidavit of the father’s treating psychiatrist, Dr. Popuri M. Krishna, which states:
I was approached in the fall of 2010 by trial counsel to [the appellant] (not Mr. Greenshields) for the purposes of providing an opinion on [father’s] ability to testify in court in light of his mental health issues. [ Father] was a patient in my outpatient clinic at the time that I had been treating on a regular basis. I provided a letter to trial counsel dated September 15, 2010 with the understanding that it would be filed with the court.
[41] Dr. Krishna attaches a copy of the letter and adopts the contents as true and accurate. He goes on to state:
[Father], who remains under my psychiatric care as of the date of this affidavit, continues to suffer from bi-polar disorder with mania, a diagnosis that applied at the time of my September 15, 2010 letter. At that time, and throughout the summer of 2010 [father’s] mental health had been unstable. [Father’s] mental health generally had deteriorated [over] the summer of 2010 following the death of his wife [the appellant’s mother]. … I understand that the events relevant to the trial dated back to about July 16, 2008. In my opinion, [father] was unable to testify as a witness in court proceedings as a result of his acute bi-polar disorder. [Father’s] unstable mental illness at the time had a significant impact on his ability to reliably observe, recollect and recount information and apply it to his current surroundings. This would be particularly so with respect to testifying as to the details of events that happened years in the past.
[42] Dr. Krishna’s pre-trial letter to trial counsel was not as categorical or explanatory as his affidavit. The letter stated:
I have been following the above-named in my outpatient clinic regularly. He suffers from bi-polar disorder with mania and most recently his mood has been still unstable. I have last seen him in the outpatient clinic on 15/09/10 and his medication at that time … All these medications are given in a blister pack for improvement in compliance. The patient in my opinion is not fit to attend court as he has a strong bi-polar disorder with poor ability to comprehend the information and apply this to his current situation. The support of his family members, particularly his son has been very helpful in managing his mental illness. I hope this information is helpful in dealing with this patient.
[43] Even though counsel had the doctor’s letter before the start of the trial, he did not introduce it until the sentencing hearing, when it was filed as an exhibit.
(a) The Governing Principles
[44] The principles relevant to the admission of fresh evidence on appeal are set out in Palmer v. The Queen 1979 8 (SCC), [1980] 1 S.C.R. 759, 1979 CarswellBC 541, at para. 22 by MacIntyre J:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [Citations omitted.]
[45] This court added an important gloss in R. v. Maciel 2007 ONCA 196. Doherty J.A. said, at para. 49:
Evidence offered on appeal to challenge factual findings at trial is inadmissible unless it is relevant to a material issue, reasonably capable of belief and sufficiently cogent that it could reasonably be expected to have affected the result at trial when considered in combination with the rest of the evidence…. In short, if the evidence is not sufficiently strong to compel the ordering of a new trial, it cannot be received on appeal. [Citation omitted.]
[46] He added, at para. 51:
Exactly where on the continuum between evidence that is sufficiently probative to meet the preconditions to the admissibility of evidence on appeal and evidence that is so probative as to warrant an acquittal, evidence will become "compelling" must depend on the totality of the circumstances. Where the proffered evidence was not led at trial because of a calculated decision made by an accused, the integrity of the criminal justice system will suffer if the evidence is received on appeal and a new trial is ordered. That harm can only be justified if the proffered evidence gives strong reason to doubt the factual accuracy of the verdict.
[47] An appellate court must balance the competing tensions of respecting finality and avoiding injustice. Whether trial counsel made a “calculated decision” is a factor. As Doherty J.A. noted, at para 50 of Maciel:
If the evidence could have been led at trial, but for tactical reasons it was not, some added degree of cogency is necessary before the admission of the evidence on appeal can be said to be in the interests of justice. Otherwise, the due diligence consideration would become irrelevant.
(b) Application of the Governing Principles
[48] The appellant had the evidence at the time of trial and, in the terms of Palmer, it could have been adduced then. Was there a “calculated decision” at play in this case?
[49] As noted, the complainant and appellant agree on much of what happened in the apartment over the course of the evening until about 20 minutes after they entered the appellant’s bedroom. The complainant testified that the appellant then closed the bedroom door, and a short time later pulled out a marihuana pipe, which they smoked. He thereafter sexually assaulted her for more than one hour.
[50] The appellant denied that the door was ever closed, that they were in the bedroom for more than 20 minutes, that they consumed marihuana in the bedroom, and that he sexually assaulted the complainant.
[51] The strategic question for the defence at trial was whether to call the appellant’s father. That issue was plainly considered by the defence before the trial, since counsel had the letter from the father’s treating psychiatrist, Dr. Krishna.
[52] In order to justify the introduction of fresh evidence on appeal under the Palmer test, an affidavit sworn by trial counsel is usually filed that explains why trial counsel did not introduce the evidence at trial In this case the medical evidence was, or could have been, available, but it was not put forward by the defence in any form until the sentencing hearing. Trial counsel did not file an affidavit explaining his reasoning.
[53] Counsel for the appellant urges this court to conclude that there was no downside to the defence putting the doctor’s letter before the court during the trial, and that the interests of justice require that we admit it now. Ineffective assistance of counsel is not, however, alleged. The doctor states that his letter was given in the expectation that it would be “filed” with the court. Perhaps he indicated to trial counsel that, although he was prepared to have the letter “filed”, he was not prepared to come to court and be cross-examined on his opinion that the father was not fit to give evidence owing to his bi-polar disorder. The doctor’s letter also states that the father was being treated and unable to testify from 2010 onwards. Because there is no affidavit from trial counsel, I do not know anything about the time frame between 2008 and 2010, such as whether trial counsel interviewed the father and determined that he had relevant evidence to give for the defence. In short, I cannot adopt appellate counsel’s argument that there was no downside to the defence in putting the doctor’s letter before the trial court.
[54] The absence of an affidavit by trial counsel leads me to conclude that he and his client made a strategic decision not to call the appellant’s father and to rely on the Crown’s burden of proof.
[55] The usual practice of this court is not to relieve against the consequences of a strategic decision. The appellant argues that the court should depart from its practice in this case and admit the fresh evidence; justice requires the court to do so in this case because of the trial judge’s heavy reliance on the adverse inference drawn from father’s absence as a witness. The appellant argues that the trial judge’s reasons for rejecting his explanation for not calling his father are not supported on the record, particularly in light of the medical evidence filed at the sentencing and the proffered fresh evidence, making the verdict unreasonable and the convictions unsafe.
[56] In my view, the fresh evidence fails the Palmer test. The defence could have introduced the evidence at trial but did not for strategic reasons. I would not admit it on appeal. While the medical evidence is relevant, it is perfunctory and not sufficiently compelling to meet the standard in Maciel. I would not relieve the defence of the consequences of the strategic decision not to call the appellant’s father as a witness.
[57] Before turning to the appellant’s detailed arguments, I describe the general law on situations in which an adverse inference may be drawn from the absence of a witness.
(iii) Adverse Inferences- General Principles
[58] In R. v. Rooke, 1988 2946 (BC CA), [1988] B.C.J. No. 104, 1988 CarswellBC 21, at paras. 83-88 (B.C. C.A.), Esson J.A. cited Wigmore on Evidence, Chadbourn Revision, Vol. 2. The root of the inference is laid out by Wigmore at para. 285:
The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavourable to the party.
[59] Esson J.A. commented, at para. 113:
Wigmore in paragraph 290(5) suggests that it is "a reasonable rule" that an adverse inference can be drawn only in respect of an issue on which the evidentiary burden rests on the party. There may be exceptions to that rule, but the absence of such an issue should, I think, be seen as a warning flag that an adequate logical basis for drawing an inference is not present. Unless there is a clear logical basis for drawing an adverse inference, to instruct the jury that it may do so will create an undue risk of putting on the accused an onus inconsistent with the presumption of innocence.
[60] In a criminal case, the onus of proof is on the Crown, leading Binnie J. to say, in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 26:
The principle applies in criminal cases, but with due regard to the division of responsibilities between the Crown and the defence, as explained below. It is subject to many conditions. The party against whom the adverse inference is sought may, for example, give a satisfactory explanation for the failure to call the witness as explained in R. v. Rooke (1988), 1988 2946 (BC CA), 40 C.C.C. (3d) 484 (B.C.C.A.), at p. 513, quoting Wigmore on Evidence (Chadbourn rev. 1979), vol. 2, at para. 290:
In any event, the party affected by the inference may of course explain it away by showing circumstances which otherwise account for his failure to produce the witness. There should be no limitation upon this right to explain, except that the trial judge is to be satisfied that the circumstances thus offered would, in ordinary logic and experience, furnish a plausible reason for nonproduction.
[61] A trial judge must take care not to effectively reverse the onus of proof in drawing an adverse inference. In R. v. Zehr, 1980 2964 (ON CA), [1980] O.J. No. 1130 (C.A.), at paras. 6 and 13, Brooke J.A. explained:
While permissible in some cases, comment on the failure to call a witness should only be used with great caution. This kind of comment from a trial judge can seriously affect what might otherwise be the jury's assessment of the credibility of those who do testify and perhaps, more importantly the integrity of the case. Such comment and instruction whether referable to the prosecution or the defence is really a comment on the conduct of the case and the instruction gives it some evidentiary significance. There are many reasons why counsel may choose not to call a witness, and our courts will rarely question the decision of counsel, for the system proceeds on the basis that counsel conducts the case. Often a witness is not called, and if the reason was known it would not justify an instruction that an adverse inference might be drawn from the witness not being called. Of importance under our system, counsel is not called upon, or indeed permitted, to explain his conduct of a case.
[62] As Martin J.A. noted in R. v. Koffman, 1985 3640 (ON CA), [1985] O.J. No. 133 (C.A.), caution must be exercised even where it is appropriate for a trial judge to comment:
Even where it is appropriate for the trial judge to comment on the failure of an accused to call a particular witness it is incumbent upon the trial judge to instruct the jury that there is no obligation on the defence to call a particular witness and that there may have been a perfectly valid reason for not calling the witness…. the failure to call a witness should not be given undue prominence and a comment should only be made where the witness is of some importance in the case.
[63] The defence is ordinarily under no obligation to call a witness: Zehr, at para. 8. An important exception is where a defence is raised on which the burden of proof is on the defence, for example, in an alibi defence. But even here, great caution must be taken. See R. v. Witter, (1996) 1996 4005 (ON CA), 27 O.R. (3d) 579, [1996] O.J. No. 358 per Doherty J.A. at para. 31. NCR v. Dupuis, (1995) 1995 1543 (ON CA), 23 O.R. (3d) 608, [1995] O.J. No. 1481 per Osborne J.A at para 33.
(iv) Was it open to the trial judge to draw the adverse inference?
[64] I note again that at trial neither the Crown nor the defence raised the issue of whether an adverse inference could be drawn from the father’s absence as a witness. While it would have been preferable for the trial judge to point the issue out to counsel during the trial and invite comment, in my view the trial judge did not err in drawing an adverse inference in the circumstances of this case.
[65] The appellant argues, based on Wigmore, that an adverse inference “should only be drawn in respect of an issue on which the evidentiary burden logically rests on the accused person.” He cites two examples. One is in an alibi case such as Zehr and Dupuis. The other is: “where the accused in his own testimony first raises the corroborative significance of the witness to his defence,” citing Charrette and Marshall. This case, the appellant asserts, does not fall into either of these examples.
[66] The appellant submits, in his factum, that:
The potential corroborative significance of [his father] did not emerge peculiarly from the appellant’s testimony. The suggestion that the appellant’s parents were present proximate to the assault first emerged from the complainant’s statement and was investigated (half-heartedly) on the day of the appellant’s arrest. The potential corroborative value of [his father’s] evidence thus applied equally as between the Crown and defence versions.
[67] This case, in my view, does fall into the category of cases where the accused in his own testimony first raises the corroborative significance of the witness to his defence. The appellant raised the corroborative significance of his father’s evidence in his testimony.
[68] The defence sowed the seeds, in chief, of an explanation for the absence of the appellant’s father as a witness for the defence; the Crown could not and did not leave this explanation untested in cross examination. The fact in issue was introduced by the defence, thereby raising the corroborative significance of the missing witness to the defence. This is a situation, echoing Wigmore, where the trial judge could draw an adverse inference, since the evidentiary burden was assumed by the defence in raising the issue.
(v) Did the trial judge take the adverse inference too far?
[69] The appellant argues that the trial judge took any possible adverse inference too far, even though she correctly self-instructed on the pertinent principles.
[70] The Supreme Court pointed out, in Jolivet, at para. 28, that care must be taken about “the exact nature of the ‘adverse inference’ sought to be drawn”. The inference taken by the trial judge is set out in her reasons at pp. 16-17 of the decision, which I repeat here for convenience:
If the adverse inference is that the complainant was in the bedroom behind a closed door for a period of time longer than the defendant had testified, the credibility of the defendant is weakened on the issue of opportunity. And it further allows me to find that the credibility of the complainant is not damaged therefore by the testimony of the defendant on that point.
The credibility of the defendant is critical with respect to one of the central issues in the case that is, whether the complainant stayed in the bedroom, behind a closed door for almost an hour after the business discussion. [the appellant’s father] could therefore be considered a witness of some importance. It follows, according to the Marshall decision, that this is a case in which an adverse inference could be drawn, that his evidence would be unfavourable to the accused.
If the adverse inference is that the complainant was in the bedroom behind a closed door for a period longer than the defendant had testified, the credibility of the defendant is weakened on the issue of opportunity. And it further allows me to find that the credibility of the complainant is not damaged therefore by the testimony of the defendant on that point.
I do not accept the defendant’s evidence of how long he was in the bedroom and whether the door was closed. The absence of otherwise available evidence leads me to the conclusion that [father’s] evidence would not [be] consistent with the defendant’s evidence.
[71] The appellant argues that the trial judge impermissibly drew an inference of guilt, by using the witness’s absence as “an affirmative piece of evidence” tending to prove “that the complainant was in the bedroom behind a closed door for a period longer than the defendant had testified.” The appellant submits that in doing so the trial judge crossed a “subtle but crucial line.”
[72] In Koffman, Martin J.A. limited the scope of any adverse inference:
The judge in the present case instructed the jury that an adverse inference could be drawn from the failure to call a witness but the nature of the inference that could be drawn was not explained to them and the jury may have thought that they could draw an inference of guilt, whereas the only inference that can be drawn, where comment on the failure to call a witness is appropriate, is that the jury may infer that if the witness were called his testimony would be unfavourable.
[73] Some cases have said that, although an inference of guilt cannot be drawn, an inference can be drawn that the evidence would be unfavourable: Koffman, Marshall, at para. 47. Other cases have said that the available inference is that the evidence would not be helpful or would not be supportive: R. v. Rudge, 2011 ONCA 791, at para. 81, Jolivet, at para. 28. Yet other cases have suggested that the adverse inference simply goes to credibility: Charette, at para. 6.
[74] These somewhat subtle differences in language do not get at the substantive point that Martin J.A. made when he distinguished, in Koffman, between an adverse inference of guilt, on the one hand, and an adverse inference that the missing evidence would be unfavourable, on the other hand. The significance is this: the Crown cannot use the adverse inference as positive evidence to meet its burden of proof; the adverse inference can be used only to undermine the defence evidence to which it relates.
[75] This, in my view, is how the trial judge used the adverse inference. She did not use it as positive evidence of guilt. Instead, she considered that the absence of the father’s corroborative evidence further eroded the already shaky credibility of the appellant’s claim that he had no opportunity to sexually assault the complainant because he and the complainant were only in the bedroom for twenty minutes with the door open.
[76] This limited use of the adverse inference was proper, since these are the very facts on which the appellant’s father would have been expected to corroborate the appellant, if the appellant’s evidence were true. Contrary to the appellant’s contention, the trial judge did not draw an inference of guilt from the absence of father’s evidence. She merely used the adverse inference as a basis to further explain why she did not find the appellant to be credible on these critical matters. As a result, and after considering all of the appellant’s testimony, she concluded that she did not believe the appellant’s version of events.
[77] In my view, it was open to the trial judge, when faced with competing narratives, to conclude that she believed the complainant’s version of events, including the fact that she and the appellant were in the bedroom for longer than twenty minutes with the door closed. The father’s failure to testify was only one part of the reasoning process that led the trial judge to this determination. As with all credibility findings, her finding is entitled to considerable deference from this court.
[78] The appellant makes a related argument that his decision not to assist police “played a prominent role in the trial judge’s rejection of his evidence.”
[79] As I noted earlier, the appellant’s father refused to give a statement to police, telling an officer that “under no circumstances would he be involved in the case and secondly that he would not have his wife speak to the officer.”
[80] The Crown cross-examined the accused on why he had not asked his parents to cooperate with police. Defence trial counsel did not object.
[81] The appellant argues that the trial judge erred by placing weight on the appellant’s failure to encourage his parents to speak to police on his behalf. He argues that his error violated his right to silence as protected by s. 7 of the Charter.
[82] The appellant argues, quite rightly, that an accused person is under no obligation to assist police or to proactively protest his innocence. The appellant’s argument goes further; he asserts: “Just as an accused may exercise his right to a silence by not giving a statement, he may also remain silent by choosing not to lobby for others to speak to police on his behalf.”
[83] In my view there is a principled distinction between the two situations. While the right to silence with respect to persons in authority is firmly established in the law: R. v Broyles, 1991 15 (SCC), [1991] 3 SCR 595, at paras. 22-25, R. v. Buhay, 2003 SCC 30, at paras. 25-31, the appellant’s parents were not persons in authority.
[84] The trial judge did not, as the appellant argues, use this evidence as a prominent basis for rejecting his evidence. At most she used it to support her decision to draw the adverse inference from his father’s failure to testify.
Disposition
[85] Accordingly, I would dismiss the appeal.
Released: December 20, 2013 “KMW”
“P. Lauwers J.A.”
“I agree K.M. Weiler J.A.”
“I agree E.E. Gillese J.A.”