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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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

DATE: 20210118 DOCKET: C62998

Fairburn A.C.J.O., Watt and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Andrew Medford Appellant

Counsel: Sonya Shikhman, for the appellant Jennifer A.Y. Trehearne, for the respondent

Heard: October 14, 2020 by video conference

On appeal from the conviction entered on April 29, 2016 by Justice Carole J. Brown of the Superior Court of Justice, with reasons reported at 2016 ONSC 2298.

Fairburn A.C.J.O.:

A. OVERVIEW

[1] This is an appeal from conviction on a number of counts, including sexual assault with a weapon and uttering a threat to cause bodily harm.

[2] The complainant agreed to engage in sexual acts with a man in exchange for money. They went to a carport to fulfill that exchange. The complainant had never been to that location before.

[3] She placed a blue condom on the man’s penis and started fellating him. The complainant became frustrated when, in her view, the man was taking too long to complete the act. She decided that she needed to leave. The man thought otherwise. He removed the blue condom from his penis, threw it to the carport floor, pulled out a knife and threatened the complainant as follows: “if I split you from your asshole to your back, maybe the open flesh will turn me on.”

[4] Although the complainant was a little “foggy” about the order of events that followed, she was clear that the same man she had been fellating, was the man who threatened her and then penetrated her vagina and “bum area” with his penis. He then strangled her into unconsciousness. When the complainant regained consciousness, she realized that she was naked and being dragged across the street by the same man. She started to scream for help.

[5] A good Samaritan, Mr. Messelhi, heard the complainant’s cries for help. At around 2:30 a.m., he saw the complainant and assailant from his seventh-floor balcony. He yelled out to them and called for emergency assistance. The man fled the scene just before the police arrived.

[6] While Mr. Messelhi was being interviewed by the police, a man by the name of Ashton Cater walked by where the complainant and assailant had been seen. Mr. Messelhi thought that Mr. Cater looked similar to the assailant. The police arrested Mr. Cater, but he was later excluded as a suspect on the basis of the DNA evidence found on the blue condom located on the floor of the carport.

[7] It was only a few years later, after the appellant’s DNA was obtained in an unrelated matter, that the DNA on the blue condom was connected to him. The condom also contained the complainant’s DNA.

[8] The appellant did not testify at trial, but accepted that it was his DNA on the condom. Through closing submissions, he acknowledged that he had engaged in a sexual act with the complainant in the carport on the night in question. His defence was that, after that sexual act finished, he left the complainant behind in the carport. On the appellant’s theory, some other man, likely Mr. Cater, must have come along after he had left the carport and attacked the complainant.

[9] To get around the complainant’s evidence that she was attacked by the same man who wore the blue condom, the appellant said she was either confused or hallucinating as a result of the drugs and alcohol she had consumed prior to the attack. He also suggested that the complainant was just generally untruthful.

[10] The trial judge rejected the defence theory as entirely speculative. She also accepted the complainant’s evidence as credible and reliable, ultimately concluding that a single perpetrator committed all of the acts, starting with the blue condom and ending with flight from the scene.

[11] The appellant was convicted across all counts. He appeals from conviction on the basis that the trial judge erred:

(a) in how she dealt with identification evidence; (b) in how she resolved credibility issues; (c) in how she approached the question of motive; and (d) in how she dealt with the burden of proof.

[12] The appellant also argues that the verdict is unreasonable and that he suffered from the ineffective assistance of counsel at trial.

[13] For the reasons that follow, I would dismiss the appeal.

B. ALLEGED ERRORS RELATING TO IDENTIFICATION EVIDENCE

[14] The appellant raises a number of concerns over how the trial judge dealt with the identification evidence. I would not accept any of these submissions. As with many of the other issues raised on appeal, the concerns expressed largely reflect an attempt to relitigate the trial.

(i) Mr. Messelhi’s identification evidence

[15] The appellant makes numerous complaints about how the trial judge dealt with Mr. Messelhi’s identification evidence. In particular, he objects to the fact that what Mr. Messelhi told the police about the assailant’s appearance and what he testified to in court was different. He says that the trial judge was duty bound to address and resolve each difference.

[16] I do not intend to address each complaint that the appellant raises because, looked at in context, none of them can succeed.

[17] The fact is that the trial judge accurately reviewed Mr. Messelhi’s evidence. She understood how it fluctuated in some ways from what he had previously said to the police. In the end, though, she concluded that she could not “place any significant weight” on Mr. Messelhi’s description of the assailant given his “vantage point from the seventh-floor balcony across the street … [in the] middle of the night … [when] the lighting was poor.” It was open to the trial judge, as the trier of fact, to reach this conclusion. And it is one to which I would defer.

[18] Accordingly, Mr. Messelhi’s evidence about what the assailant looked like was largely neutralized by the trial judge’s conclusion that Mr. Messelhi was not in a position to make reliable observations. Therefore, even assuming (without suggesting) that there was some merit to the appellant’s submission that the trial judge failed to adequately deal with the witness’ alleged prior inconsistent statements, it would have had no impact on the outcome of the case.

[19] In any event, the most significant alleged error made by the trial judge relates to what the appellant argues is her failure to resolve the fact that Mr. Messelhi told the police that the assailant was a “black” male, but in court suggested that the assailant was of “mixed” heritage. The appellant argues that the failure to resolve that inconsistency undermined the defence theory, particularly given that the appellant says Mr. Cater is “black” and that the appellant is closer to a “mixed” heritage.

[20] This objection cannot succeed. The fact is that Mr. Messelhi told the 9-1-1 operator that the assailant was “kind of black or mixed black.” Therefore, there was no inconsistency between how Mr. Messelhi first described the assailant to the 9-1-1 operator and his evidence at trial, where he testified that there are “different gradients of black” and that when he says “black”, he includes “brown”. In these circumstances, there was nothing for the trial judge to resolve.

(ii) Mr. Messelhi did not adopt his prior statement

[21] The appellant also contends that the trial judge erred by failing to appreciate that Mr. Messelhi adopted a prior statement, where he is alleged to have told a police officer that he was “100 percent” certain that Mr. Cater was the assailant. The appellant also contends that, even if Mr. Messelhi did not adopt his prior statement, the trial judge still erred because she failed to turn her mind to whether he had done so. I do not accept either of these submissions.

[22] Mr. Messelhi testified in-chief that while he was being interviewed by the police, he saw a man walking by the crime scene and thought that the man looked like the assailant, but that the man also “looked slightly different.” (That man was Mr. Cater.) During cross-examination, defence counsel suggested to Mr. Messelhi that he had told the officer who was interviewing him that the man walking by was “100 percent” the same man that he had seen attacking the woman. In my view, Mr. Messelhi did not adopt that prior alleged statement.

[23] A witness only adopts a prior statement where the witness agrees, based upon present memory, that the statement is true. Only where that prior statement is adopted, does it become part of the witness’ evidence at trial, available to the trier of fact for the truth of its contents: R. v. McCarroll, 2008 ONCA 715, 238 C.C.C. (3d) 404, at para. 39; R. v. Candir, 2009 ONCA 915, 250 C.C.C. (3d) 139, at para. 113; R. v. Abdulle, 2020 ONCA 106, at paras. 136-38, leave to appeal to S.C.C. refused, 39175 (August 20, 2020); R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.), at p. 493.

[24] A review of Mr. Messelhi’s cross-examination demonstrates anything but adoption. While defence counsel repeatedly tried to have Mr. Messelhi adopt the alleged prior statement, he failed in achieving that goal. Here are some highlights from that exchange:

Q. … at the time you were 100 percent sure that that was the person because – A. I – I was not. I was – again, it was someone that walked by that had similar characteristics. Q. Okay. A. But again, I don’t believe that it was – I wasn’t 100 percent – Q. So if you told the police that the guy that they were investigating is the same guy 100 percent, that’s obviously what you believed at the time, right? I’m talking about at that moment. A. Yeah. At the time they – they looked similar. Q. Right. The only detail you gave them was that’s the guy, 100 percent. That’s what you told them, right? It’s in the notes. A. I don’t recall saying that … Q. Okay. A. … to be honest with you. I recall pointing – I recall pointing down to the – to the street level from my balcony. … I don’t recall – I’ll be honest with you, I don’t recall saying, yeah, that’s him 100 percent.

[25] Nothing in this exchange points toward adoption of the prior alleged statement. Indeed, it does not even point toward acknowledgement that the statement was made. In these circumstances, I see no error in the trial judge’s decision not to address the issue of adoption.

(iii) There was no contemporaneous identification

[26] The appellant also suggests that the trial judge erred by accepting Mr. Messelhi’s trial evidence regarding what he said the assailant looked like, instead of what he had previously told the police that the assailant looked like. He argues that a description contemporaneously made must be accepted over a description at trial.

[27] I see no basis in law or on the record for this suggestion. Mr. Messelhi did not purport to identify the appellant in the courtroom and was never asked to do so. In any event, the trial judge did not prefer one version over the other. Indeed, as previously addressed, she discounted Mr. Messelhi’s identification evidence altogether because of the distance from which he was making his observations and the lighting conditions involved. It was open for her to come to that conclusion.

(iv) Failure to resolve the height differential

[28] The appellant also argues that the trial judge erred by failing to resolve another issue: that he is only five feet, five inches tall, which is much shorter than how Mr. Messelhi and the complainant described the assailant. Mr. Messelhi thought the assailant’s height was around six feet tall and the complainant thought his height was around the same as hers, about five feet, nine inches tall.

[29] For the reasons already mentioned, given the limitations on Mr. Messelhi’s ability to make accurate observations, the trial judge resolved that she could place little weight on how he described the assailant. Accordingly, there was little need for the trial judge to resolve the difference between Mr. Messelhi’s description of the assailant’s height and the appellant’s actual height.

[30] That is equally true when it comes to the complainant’s evidence about her assailant’s height, being about four inches taller than the appellant’s actual height. Although the trial judge did not squarely resolve that issue in her reasons, she was clearly aware of it as she adverted to that evidence in her reasons.

[31] When considered against the factual backdrop of this case, it is understandable why the trial judge did not see a pressing need to resolve the difference. After all, it was agreed that the man in the blue condom was in fact the appellant. As the complainant said that the man who wore the condom was the same man who attacked her, she was describing the height of the man who wore the condom – that being the appellant.

[32] Therefore, what was critical from an identity perspective was not that the complainant suggested that her assailant was around five feet, nine inches, but that she said that the man in the blue condom was the same man who attacked her. The reasons make clear that the trial judge accepted the complainant’s evidence on this point. Therefore, given the agreement that the appellant was the man in the blue condom, it can be inferred that the trial judge was satisfied that the complainant simply misjudged the appellant’s height.

(v) Did the trial judge err by failing to consider circumstantial evidence?

[33] The appellant points to four pieces of evidence that are said to have been overlooked by the trial judge, but that bolstered the identification of Mr. Cater as the assailant. I do not agree that the trial judge was under any obligation to specifically turn her mind to these pieces of evidence.

[34] First, a wrapper from a box of gloves was found on the ground not far from where the complainant was dragged. That packaging matched packaging that was found in the bag that Mr. Cater was carrying at the time of arrest. The appellant argues that this piece of circumstantial evidence pointed toward Mr. Cater being the person who dragged the complainant across the road.

[35] There was no suggestion that the assailant wore gloves during the attack. Nor is there any suggestion that these were rare or unusual gloves. While the packaging appears to have matched, it does nothing more than provide a tenuous link between Mr. Cater and the geographical area where the complainant was ultimately found. Of course, Mr. Cater was already associated to that area, being the area where he was arrested.

[36] Second, the appellant points to the fact that Mr. Messelhi testified that the assailant was wearing a do-rag. Mr. Cater’s bag contained a black do-rag. The appellant again argues that this pointed toward Mr. Cater being the assailant.

[37] The difficulty with this submission is that the trial judge believed the complainant that she was attacked in one continuous event, by the man who she said she had placed the blue condom on. The complainant did not think that her assailant was wearing any type of head covering. Her credibility was accepted by the trial judge.

[38] Moreover, for reasons that I have already given, the trial judge discounted the accuracy of Mr. Messelhi’s observations as they related to the assailant’s appearance. It was open for her to do so. Thus, the fact that Mr. Cater had a do-rag in his bag did not advance the defence, particularly given that there was no evidence that he was wearing that do-rag at the time in question or, indeed, at any point during the night of the offence.

[39] Third, the appellant argues that the trial judge erred by failing to consider what happened to a bicycle that the appellant was said to have had with him when he and the complainant went to the carport.

[40] The complainant testified that her attacker brought a bicycle with him to the scene of the attack, but could not recall what happened to that bicycle. The police did not find a bicycle at the crime scene.

[41] The appellant claims that the absence of a bicycle at the scene supported his position, as advanced only in oral submissions at trial, that he had left the carport on his bicycle and the complainant was later attacked by someone else. Of course, there was no evidence about the appellant leaving the carport after the initial sexual encounter because, as was his right, the appellant did not testify.

[42] Therefore, at its highest, the evidence came from two sources: (a) the complainant who testified that her assailant had a bicycle at some point when they first met up; and (b) that the police did not see a bicycle around the scene of the crime. Against this factual record, the trial judge was under no obligation to resolve anything regarding the fact that a bicycle was not found at the crime scene.

[43] Finally, the appellant claims that the trial judge erred by not addressing the length of time over which the attack was said to have taken place. The complainant said that she initially met the man around 10:00 p.m. Yet the 9-1-1 call was not received until just after 2:30 a.m. According to the appellant, that means that the assault went on for about 4.5 hours. He says that it defies common sense that the assailant would remain with the complainant while she was unconscious for that length of time. The failure of the trial judge to turn her mind to this issue is said to reflect error.

[44] This argument was not put to the trial judge in closing submissions and therefore, it is with little surprise she did not address it. In any event, the complainant was clear that she did not know how long she was unconscious for. The appellant and complainant could have been together for a long period of time or the complainant could have been wrong about the time at which she first went to the carport. Indeed, as I will soon address, it appears that she was wrong about the timing.

C. CREDIBILITY ISSUES

[45] The appellant maintains that the trial judge erred by failing to turn her mind to details undermining the complainant’s credibility. In my view, the appellant is really asking this court to substitute its own view of credibility for that of the trial judge. There is no basis upon which to do so.

[46] The appellant suggests that the complainant should be disbelieved because she said that, at one point, she was being dragged with her face on the pavement, yet she did not have facial injuries to match that evidence. This is incorrect. An officer noted a scrape or scrapes on her face and the nurse who saw the complainant after the incident noted a visibly red and swollen nose.

[47] The appellant also suggests that the trial judge failed to address the discrepancy between the complainant and Mr. Messelhi as to whether the assailant was wearing a do-rag. This is said to have adversely impacted the complainant’s credibility. Not so. For reasons already given, the trial judge refused to place meaningful weight upon Mr. Messelhi’s evidence about the assailant’s description. In these circumstances, the differences between his evidence and hers, as to whether the assailant was wearing a do-rag, could not have impacted the complainant’s credibility.

[48] The appellant also claims that the trial judge failed to properly consider the complainant’s level of intoxication at the time of the events. In doing so, she is said to have failed to understand that the complainant “did not unequivocally reject the possibility of hallucinations.” I do not agree.

[49] The complainant was clear about what she had ingested prior to the events: alcohol, marihuana, and crack cocaine. She was equally clear that she was not hallucinating during the attack. Moreover, the trial judge was alive to the issue, specifically noting that the complainant was “muddled” about the order of events. Even so, it was open to the trial judge to conclude as she did, that being muddled about the order of events was not in any way determinative of the complainant’s credibility or reliability.

[50] To the extent that the complainant may have had some gaps in her memory, her evidence makes clear why that was the case. As is clear from the transcript, the complainant was highly resistant to testifying and being required to recount the terrifying events that occurred almost five years before trial. In these circumstances, some gaps in memory may well be expected.

[51] The complaint here is nothing more than a request to have this court reassess the complainant’s credibility. That was the job of the trial judge. I see no error in her approach and would defer to her findings.

D. MOTIVE

[52] The appellant argues in writing only that the trial judge erred by concluding that the complainant was credible because she had no motive to lie. He also claims that the trial judge erred in failing to find that the complainant did have a motive to lie, one that arose from the fact that she needed money for her next drug “hit” and the man she was fellating took the money back when she said she did not wish to complete that act. I would not accept either of these submissions.

[53] First, the trial judge held that she was “satisfied that [the complainant] had no exterior or ulterior motivation to lie and was attempting throughout to be truthful.” I interpret the trial judge’s comments as doing nothing more than stating her conclusion that there was no motive to lie and, therefore, the complainant’s evidence could not be rendered suspect by virtue of any such suggestion. I do not read the trial judge as placing affirmative weight on the complainant’s evidence because of her conclusion that there was no motive to lie.

[54] For the first time on appeal, the appellant says that the complainant had a motive to lie which arose from her upset that the man in the blue condom took his money back after she refused to complete the fellatio. I agree with the respondent that there are numerous difficulties with this theory, including that the alleged motive was never put to the complainant when she was testifying. It also runs contrary to her evidence, that she offered to give the man in the blue condom his money back – not that he stole the money back – when she decided she did not wish to complete the act.

[55] I would not accede to this ground of appeal.

E. BURDEN OF PROOF

[56] The appellant also suggests that the trial judge reversed the burden of proof. In particular, he points to a passage in the lengthy reasons for judgment, where the trial judge found that the defence theory was speculative and unpersuasive “given all the evidence.” He seems to suggest that this passage demonstrates that the trial judge was requiring that there be actual evidence supporting the defence theory before it could succeed. I do not read the passage that way.

[57] I start by observing that the trial judge accurately reviewed the burden of proof at the outset of her reasons. There is no complaint about how she did so. Therefore, the appellant’s objection is made in circumstances where the reasons for judgment demonstrate a correct summary of the legal principles pertaining to the burden of proof.

[58] In my view, the impugned passage from the reasons for judgment demonstrates nothing more than the trial judge’s acknowledgement that the defence theory did not raise a reasonable doubt in her mind. She saw it as entirely speculative in nature, particularly because she accepted the complainant’s evidence that the same man who wore the blue condom (the appellant), was the same man who attacked her and dragged her across the street. There is nothing in the reasons to suggest that she applied the wrong burden of proof.

F. THE REASONABLENESS OF THE VERDICT

[59] The appellant claims that the verdict is unreasonable in these sense that a trier of fact could not have reasonably reached the conclusion that the trial judge reached. I do not agree.

[60] Taking into account the totality of the evidence, the trial judge’s conclusion is one that a properly instructed trier of fact acting judicially could have reasonably rendered: R. v. Mendez, 2018 ONCA 354, at para. 21. At this stage of these reasons, to unpack the reasonableness of the verdict would risk serious repetition. Suffice to say that it was open for the trial judge to accept the complainant’s credibility as to the one, continuous series of events involving the same man who wore the condom, which man was the appellant.

G. COMPETENCE OF COUNSEL

[61] The appellant claims that his trial counsel was ineffective and that this resulted in a miscarriage of justice.

[62] During oral submissions, the appellant focussed upon a few specific complaints involving trial counsel’s performance. I too will focus upon those complaints. First, though, I will address the operative legal principles when it comes to competence of counsel claims.

[63] The burden falls to the appellant to establish the facts underpinning the claim of ineffectiveness. Those facts must address both the performance and prejudice components of the test. The performance component involves establishing how counsel’s representation was inadequate. The prejudice component involves establishing how those inadequacies resulted in a miscarriage of justice: R. v. Cherrington, 2018 ONCA 653, at paras. 25-27; R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26; R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.) pp. 59-62, leave to appeal refused, [1996] S.C.C.A. No. 347.

[64] The performance component requires the court to consider counsel’s conduct of the defence against a standard of reasonableness, one that includes a presumption that counsel’s conduct falls within a wide degree of reasonable professional assistance. Strategic tactical decisions should be viewed through a lens of deference, rather than a lens of hindsight.

[65] The prejudice component is fulfilled where there is a miscarriage of justice arising from either some form of procedural unfairness or an unreliable result or both: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 177, leave to appeal refused, [2017] S.C.C.A. No. 17.

[66] The appellant claims that trial counsel was incompetent by failing to put to the complainant the original description she gave to the police of the assailant. She originally told the police that she thought that her attacker was six feet tall. That is said to more closely match Mr. Cater’s height than the appellant’s height.

[67] On appeal, trial counsel has explained why he chose not to focus upon the first description given by the complainant as to her assailant’s height. Suffice to say that it was a strategic call on his part. I see no need to explore the underlying rationale for that decision given that, for reasons already set out, the complainant’s description of her assailant’s height did not matter to the end result in this case. This case turned on the trial judge’s acceptance of the complainant’s evidence that the man who wore the blue condom was her attacker. Accordingly, whatever height the complainant ascribed to the man in the condom, one thing was accepted at trial: the man in the condom was the appellant.

[68] The appellant also points to the fact that the complainant told the police her assailant was carrying a bag. Counsel did not confront her with that previous statement. The failure to do so is said to reflect incompetence because of the fact that Mr. Cater was also carrying a bag when he was arrested.

[69] Trial counsel acknowledges that, in hindsight, he ought to have put the complainant’s statement about the assailant carrying a bag to her. While that would have been better, in my view, the failure to do so changes nothing. The complainant did not tell the police anything about the appearance of the bag, what it looked like, or its size. Moreover, and again, there is no dispute that the man with the bag who the complainant met, on whom she placed the blue condom, was the appellant. In these circumstances, the circumstantial value of the bag is highly questionable.

[70] The appellant also claims that his trial counsel was incompetent by failing to put to the complainant that she had described her attacker to the police as a “black” male. As before, that description is said to have matched Mr. Cater better than it matched the appellant.

[71] It is true that counsel did not put that statement to the complainant, but the value of doing so would have been highly questionable. This is especially true given that three days after the attack, and a couple of years before the appellant was apprehended for this offence, in a detailed statement, the complainant told the police that her attacker had a “light complexion”, was “mixed”, “half and half” and with “black in him.” In these circumstances, a miscarriage of justice could not have resulted from the failure to put the earlier description to the complainant.

[72] The appellant also suggests incompetence arising from the fact that counsel did not put to Mr. Messelhi his prior statement to the police, where he had told them that he was unsure about what the assailant’s hair looked like because he was wearing a do-rag. At trial, Mr. Messelhi suggested that he could see braids coming out from underneath the do-rag.

[73] Again, trial counsel agrees that it would have been better had he put Mr. Messelhi’s prior statement to him. Even so, nothing turns on the failure to do so given that the trial judge discounted the value of Mr. Messelhi’s observations.

[74] Finally, the appellant focusses on one alleged failure by the trial counsel that is said to be dispositive of a miscarriage of justice.

[75] Trial counsel was aware from police notes that the police had observed a security video at a gas station, close to the scene of the crime, that showed someone who the police thought was the complainant walking with a man holding a bicycle. The man’s identity was not discernable on the video. The video showed a time stamp of 1:46 a.m. (about 45 minutes before the 9-1-1 call).

[76] The appellant argues that the failure of trial counsel to obtain that video and play it at trial demonstrates ineffectiveness. The appellant contends that the video would have undermined the credibility of the complainant who said that she met her assailant around 10:00 p.m. The video would have shown that, in fact, she met her assailant over three hours later in time.

[77] Trial counsel admits on appeal that he knew of the existence of the video, but explains that he did not request a copy of the video out of a concern that it would undoubtedly assist the Crown’s case. In trial counsel’s view, the longer the time between when the complainant and appellant first went to the carport and when Mr. Messelhi called 9-1-1, the greater the support for the defence theory that a second man came along and attacked the complainant after the appellant had left the scene. The video could undermine that theory by demonstrating very clearly that the complainant was simply wrong about the time that she and the appellant engaged in the sexual act in the carport. It would have taken what was, on the complainant’s evidence, an over 4-hour gap from beginning to end, and truncated it to about a 45-minute window.

[78] Trial counsel’s decision to avoid any steps that may highlight the importance of the video to the Crown’s case was a tactical one and is entitled to deference.

[79] In conclusion, while there are some aspects of counsel’s performance that in hindsight could have been better executed, perfection is not the standard: Joanisse, at p. 61. To the extent that trial counsel fell short in this case, it was on minor details that had no impact on the reliability of the verdict.

CONCLUSION

[80] I would dismiss the appeal.

Released: “JMF” “ JAN 18 2021”

“Fairburn A.C.J.O.”

“I agree David Watt J.A.”

“I agree Thorburn J.A.”