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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20210827 DOCKET: C56862

Hourigan, Zarnett and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

R.C. Appellant

Counsel: Anthony Moustacalis and Christen Cole, for the appellant Christine Bartlett-Hughes, for the respondent

Heard: March 31, 2021 by video conference

On appeal from the conviction entered on January 14, 2013 and the sentence imposed on April 5, 2013 by Justice Susan E. Healey of the Superior Court of Justice.

Zarnett J.A.:

A. Introduction

[1] The appellant was convicted of two counts of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. The complainants, L.T. and K.T., were friends of the appellant and his wife.

[2] The trial judge imposed a custodial sentence of two years less a day for the sexual assault against L.T., and 60 days (to be served concurrently) for the sexual assault against K.T., followed by three years’ probation. The trial judge also made various ancillary orders.

[3] The appellant contends that the trial judge made six errors that, alone or in combination, undermine the legitimacy of the conviction and entitle him to a new trial. He also seeks leave to admit fresh evidence, on the basis of which he advances a seventh ground: that he received ineffective legal assistance from his trial counsel.

[4] For the reasons that follow, I would dismiss the conviction appeal. The trial judge did not make the errors asserted by the appellant. Although I would admit the fresh evidence, it does not establish that the performance of trial counsel fell below the standard of reasonableness or that a miscarriage of justice occurred.

[5] The appellant’s factum requests a reduction of his sentence. This request was not pressed in oral argument. The sentence does not reflect any error in principle, nor is it demonstrably unfit. I would therefore refuse leave to appeal the sentence.

B. Factual Context

[6] As most of the appeal grounds relate to the way the trial judge analyzed and processed the evidence, I first summarize the circumstances of the offences according to the Crown’s case at trial, and then the appellant’s version at trial of what occurred. I return, in more specific detail, to parts of the evidence when I analyze each ground of appeal.

The Crown’s Case at Trial

[7] L.T. and K.T. had a long friendship with the appellant and his wife, which began through their families when they were young, and continued even after they were adults with children of their own.

[8] On Saturday, March 12, 2011, L.T. and K.T., together with K.T.’s boyfriend M.G., K.T.’s children, and L.T.’s daughter, went to the home of the appellant, his wife, and their two children, for an overnight visit.

[9] After dinner on Saturday, the appellant served drinks, while everyone danced and enjoyed themselves. In her evidence, L.T. described having three or four pina coladas and one or two shots of tequila. She said she was not drunk, but felt very sick and needed to lie down. Two or three hours after the drinking began, the appellant’s wife took L.T. upstairs to the master bedroom, where she vomited. The appellant’s wife undressed her, helped her change into clean sleeping attire, gave her Tylenol, and left her in bed to rest.

[10] L.T. testified that she again became sick and vomited. The appellant and M.G. came into the bedroom to help. After M.G. left the bedroom, the appellant (now alone in the room with L.T.) undressed her and gave her two pills. The next thing L.T. recalled was someone having intercourse with her from behind and touching her breasts, after which he pulled up her pants and pulled down her shirt. She was unable to speak or react. She did not look behind her while this was occurring, nor see the person’s face as he left the room. She testified that she knew it was the appellant, because she saw that the person leaving the room was wearing a white t-shirt, as the appellant had during the evening, and due to his build compared to M.G.’s (the only other adult male in the house).

[11] K.T. testified that between the end of dinner and about 11 p.m., she had two pina coladas, two or three shots of tequila, and some water. She was not drunk. She went into the family room and lay down with her boyfriend M.G. on a couch, until he left to go outside to smoke. While she remained on the couch, she felt someone drape a blanket over her and a hand “kind of just caressing” her breast. She did not open her eyes as she assumed it was M.G. She then felt hands moving up her leg and trying to push her pants down. She opened her eyes and saw the appellant, who she said was wearing a white t-shirt, sitting at the end of the couch, from which he quickly got up. At the time, the appellant was the only other adult in the room.

[12] Everyone stayed at the appellant’s home that Saturday night, and until after dinner on Sunday. L.T. and K.T. testified that on Sunday morning, they told each other about what had occurred, and discussed it with the appellant’s wife until she ended the conversation. They stayed at the appellant’s home until Sunday evening, as L.T. and K.T. had promised their children the opportunity to go swimming at a local facility.

[13] L.T. worked in a law office. When she told a colleague what had happened upon her return to work, her colleague encouraged her to make a police report. L.T. and K.T. were hesitant to do so because of the effect on the appellant and his wife, their family friends, but they subsequently did.

[14] M.G. also testified. He acknowledged that he recalled certain things about the evening, but not others, and that his memory was affected by long-term marijuana use. He stated that at K.T.’s request, he had gone to check on L.T., who K.T. thought had too much to drink. He found L.T. vomiting in the bedroom and the appellant in the room cleaning things up. The appellant told M.G. he did not require help. When M.G. left the bedroom, the appellant closed the door. M.G. denied that he had sex with L.T., or that he had tried to put his hands down K.T.’s pants.

The Defence Case at Trial

[15] The appellant testified that he regarded L.T. and K.T. as family friends, but that their relationship was much closer with his wife.

[16] On Saturday evening, the appellant had prepared and served drinks after dinner. He believed K.T. and L.T. each had four pina coladas and four shots of tequila and that both were highly intoxicated. The party ended when K.T. and then L.T. announced they had urinated themselves and L.T. announced she was not feeling well and did not want her daughter to see her in that state.

[17] After the appellant’s wife took L.T. to the master bedroom, the appellant was told that L.T. had vomited. He went upstairs to check on her and to clean up. He told M.G. — who was watching, not assisting — to get out, closed the door to protect L.T.’s dignity and so the children would not see her, gave her Tylenol, and helped L.T. out of her shirt and into a clean top from the bedside drawer. He averted his eyes while doing so. He explained in cross-examination that he felt comfortable changing her shirt as he had known L.T. for a long time and there was no one else to do it. He denied touching her breasts, accidentally or otherwise.

[18] The appellant testified that after cleaning up, he went downstairs, and briefly sat on the couch where K.T. was laying down. He moved because K.T. was twitching and sleep talking. He considered this “ridiculous” and K.T. “weird”, so he moved to sit on the floor to watch a movie with the children. He denied putting a blanket on K.T. or touching her inappropriately.

[19] The appellant gave no evidence of what he was wearing that evening.

[20] The appellant testified that the visit continued until after dinner on Sunday. He recalled nothing unusual having occurred that day and was disappointed that L.T. had not apologized to him. He said she kissed him goodbye on the cheek when they left. He initially denied he had any conversation with his wife on Sunday about the previous night, but in cross-examination recalled that she told him that L.T. and K.T. had felt violated and might go to the police. He told his wife he had nothing to hide and would “cross that bridge” when it came. He testified that he did not consider this a significant conversation and that he was completely shocked when he later learned that L.T. and K.T. alleged that he had sexually assaulted them.

The Trial Judge’s Decision

[21] After referring to the requirement that the burden of proof was on the Crown to prove each of the essential elements of the offences beyond a reasonable doubt, the trial judge observed near the outset of her reasons that “two very different versions of events have been presented to the court during the course of this trial as to what occurred during the crucial hours of approximately 7:00 p.m. until approximately midnight on [Saturday] March 12, 2011. It has been my job to determine which is the more reliable of the two basic versions.”

[22] After reviewing the evidence, she began her analysis by noting matters that were not really in dispute. These included: M.G., K.T., L.T., and their children arrived at the appellant’s home on Saturday, March 12, 2011; the appellant served drinks after dinner; L.T. began to feel ill and was escorted to the upstairs bedroom by the appellant’s wife, who assisted her in changing her clothes and gave her Tylenol; M.G. and the appellant went to check on L.T.; the appellant remained alone in the room with L.T.; there was no evidence that M.G. was ever in the room alone with L.T.; K.T. was lying alone on a couch; at some point the appellant was also sitting on that couch until an event caused him to quickly move to another location; and M.G., K.T., L.T., and their children left the appellant’s home after dinner on Sunday.

[23] The trial judge then set out reasons why she rejected much of the evidence of the appellant, leading her to conclude that she was not required to acquit the appellant under the first step in R. v. W(D), [1991] 1 S.C.R. 742. Among these reasons were that the trial judge disbelieved the appellant’s portrayal of himself as an uninvolved and unwilling participant in the events of the weekend. She rejected the theme she found present in his evidence that K.T. and L.T. were repugnant to him, including his evidence that K.T. and L.T. had both urinated on themselves, and his testimony that he considered K.T. talking in her sleep while on the couch “weird”, “ridiculous”, and the reason he switched locations. She disbelieved his attempt to downplay his relationship with L.T. and K.T., which she considered to be in direct contradiction to his evidence that he felt comfortable changing L.T.’s shirt, especially when there were two other women in the house who could have done so. She rejected his attempt to downplay the significance of a conversation with his wife in which she told him that L.T. and K.T. might go to the police because they had felt violated.

[24] The trial judge then considered whether the appellant’s evidence, even though she had rejected substantial parts of it, left her with a reasonable doubt about his guilt, as contemplated by the second step in W(D). She found that it did not.

[25] Finally, she addressed the third question under W(D): whether, on the basis of the evidence that she did accept, she was convinced of the appellant’s guilt beyond a reasonable doubt. She concluded that she was.

[26] The trial judge found that neither K.T. nor M.G. were intoxicated to the point of being unable to appreciate the events going on around them. Although she was more concerned about L.T.’s level of intoxication, she found that L.T. was able to accurately observe and appreciate the important parts of what was occurring and that the person leaving the room was wearing a white t-shirt and had a different build than M.G. She noted that L.T. was candid as to what she could and could not remember, and found her testimony to be otherwise honest and reliable, noting that important parts of her recollection were corroborated by others, including, in some respects, by the appellant.

[27] The trial judge rejected the suggestion that L.T. had a motive to fabricate, stating that L.T. “never had an axe to grind” with the appellant and considered him to be a friend, and that her hesitation in reporting to the police did not reflect a need for time to fabricate, but rather torment over making a decision that would affect people she cared about. The trial judge rejected attacks on L.T.’s honesty.

[28] The trial judge also accepted the evidence of K.T., who she found to be an “excellent witness”. The evidence concerning her alcohol consumption did not raise a concern about her ability to recollect.

[29] The trial judge was able to reach her findings with “very little reliance” on the testimony of M.G., but she noted there were parts of his evidence that confirmed that of L.T. and K.T. Because she placed some reliance on his evidence, she considered his criminal record, but in light of her observations about his testimony in general, and the nature of the record, she considered it insufficient to entirely discount his evidence.

C. Analysis

[30] The appellant argues that the trial judge made six errors:

a) she approached her task as a credibility contest;

b) she failed to address inconsistencies in the evidence of the Crown witnesses and applied a different level of scrutiny to the credibility assessment of the Crown witnesses, as compared to the appellant;

c) she misapprehended evidence;

d) she placed significant weight on the absence of an apparent reason to lie;

e) she rejected defence evidence based on a mischaracterization of it; and

f) she erred in permitting the Crown to elicit details of a conversation between the appellant and his wife.

Issue a): The Trial Judge Did Not Treat the Case as a Credibility Contest

[31] The appellant focuses on the trial judge’s statement, early in her reasons, that the evidence presented “two very different versions of events” and that it was her “job to determine which is the more reliable”. Although acknowledging that the trial judge cited W(D), he submits that the reasons do not reflect its correct application. According to the appellant, the trial judge’s statement reflects an erroneous approach of choosing between the appellant’s and the Crown’s evidence, rather than deciding, on the basis of all of the evidence, whether a reasonable doubt as to guilt existed. The appellant also submits that the trial judge neglected the alternative that even if the appellant was not believed, his evidence may still have left a reasonable doubt about his guilt.

[32] In my view, the appellant’s argument takes the trial judge’s statement out of context. The trial judge not only cited the requirement that the Crown prove its case beyond a reasonable doubt before making the statement the appellant refers to; after making it, she reviewed the evidence and then proceeded to conduct the W(D) analysis.

[33] The trial judge specifically considered whether to acquit the appellant because she believed him. After rejecting that alternative, and contrary to the appellant’s argument, she expressly considered whether despite rejecting parts of the appellant’s evidence, she was still left with a reasonable doubt by it. After concluding she was not, she continued, as required by W(D), to consider whether, on the basis of the evidence she did accept, the appellant’s guilt was proven beyond a reasonable doubt.

[34] Taking the reasons as a whole, the trial judge did not neglect any part of the W(D) analysis. She did not proceed simply by choosing between the appellant’s and the Crown’s evidence, but based her conclusion that she was not left with a reasonable doubt on the whole of the evidence: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8.

[35] I would therefore reject this ground of appeal.

Issue b): The Trial Judge Did Not Apply Uneven Scrutiny or Ignore Inconsistencies in the Crown Evidence

[36] The appellant contends that the trial judge applied uneven scrutiny to the evidence of the appellant and the evidence of the Crown witnesses. He submits that although she identified significant credibility problems that led her to reject the appellant’s evidence, the trial judge did not address a number of inconsistencies in the evidence of the Crown witnesses.

[37] Most of the alleged unaddressed inconsistencies that the appellant relies on are between the evidence of M.G. on the one hand, and L.T. and K.T. on the other, on matters such as whether, on Sunday morning, L.T. and K.T. discussed what happened alone in a bathroom or whether the appellant’s wife was also present; who took the children swimming the following day; whether K.T. told M.G. on Saturday night what had occurred; and whether while K.T. and M.G. were together on the couch, they had a blanket over them.

[38] In my view, the trial judge sufficiently addressed any such inconsistencies. The trial judge noted M.G.’s faulty memory, did not rely on M.G. for the “sequencing of events that evening”, and reached her findings with very little reliance on his evidence. She was entitled to prefer the evidence of L.T. and K.T. to that of M.G. in the event of discrepancies. Such a finding attracts deference: R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, at para. 44, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307.

[39] Moreover, the appellant’s complaint that the trial judge should have addressed an inconsistency between K.T.’s evidence — that she did not tell M.G. on Saturday night what the appellant had done because of a concern M.G. might “freak out” — and M.G.’s evidence — that he would not have freaked out — is unjustified. There is no inconsistency between what K.T. said her concern was, and M.G.’s surmise about the way he would have reacted. Both can be true. In any event, a trial judge is not required in the course of his or her reasons to refer to or resolve every inconsistency raised by the defence: R.A., at para. 45.

[40] The appellant submits that a difference existed between the evidence of M.G. about K.T. and L.T.’s level of intoxication (that they were “buzzed” and did not have their wits about them), and the evidence of K.T. and L.T. that they were not drunk. The trial judge addressed any difference in these subjective assessments. In her reasons, she carefully analyzed all of the evidence, and specifically referred to M.G.’s evidence, in reaching her conclusion about the level of intoxication and the effect it had on the ability of L.T. and K.T. to reliably recount the events in question.

[41] Finally, the appellant submits that the trial judge did not accept the evidence of L.T. that the appellant drugged her, but still found L.T. credible. However, the trial judge did not rule out the possibility that L.T. had been drugged; she said there was insufficient evidence to make that finding. The trial judge gave detailed reasons for accepting L.T.’s evidence on the core of her allegations as to what occurred. She was entitled to make that determination even though she did not accept L.T.’s suggestion that she had been drugged.

[42] An uneven scrutiny argument is a difficult one for a number of reasons, including the deference owed to a trial judge’s credibility assessments, the necessity of showing the trial judge actually used different standards, and the inability of an appellate court to reweigh and reassess evidence in the absence of a palpable and overriding error: R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 23-26, leave to appeal refused, [2017] S.C.C.A. No. 294. The appellant has not established that the trial judge applied uneven scrutiny in this case.

[43] I would reject this ground of appeal.

Issue c): The Trial Judge Did Not Misapprehend Evidence

[44] The appellant argues that the trial judge misapprehended M.G.’s evidence of what L.T. and K.T. said to him about what happened to them on Saturday night, and that she erred by failing to give effect to that evidence. He submits that this error played an essential part in her reasoning process, resulting in the conviction.

[45] What the trial judge is alleged to have misapprehended and failed to give effect to are statements M.G. made at the preliminary inquiry, which were then put to him when he testified at trial. One statement was to the effect that it was possible that L.T. had asked him on Sunday who had changed her clothing the previous evening. The other was to the effect that K.T. had asked him whether he had touched her and was not a hundred percent sure it was the appellant. In substance, the appellant argues that the trial judge should have treated this evidence as adopted at trial, true, and as evidence that undermined L.T. and K.T.’s credibility.

[46] At trial, M.G. testified that he did not recall L.T. asking who had changed her. He also testified that he had no present recollection of a conversation with K.T. on Sunday in which she told him a sexual assault had occurred. He was confronted at trial with his preliminary inquiry evidence. He confirmed that he had given those answers, that the answers concerning the conversation with K.T. sounded “correct”, and that those with respect to the conversation with L.T. “[rang] true”. But in the end, he stated that he could neither confirm nor deny the statements he made at the preliminary inquiry, as he did not remember either conversation.

[47] The trial judge expressly referred to M.G.’s trial evidence that on Sunday, K.T. told him about something occurring, but that he did not have a good recollection of the conversation. She referred to the defence argument that his evidence contradicted statements he made at the preliminary inquiry and she recounted those statements. She also referred to M.G.’s trial evidence that he did not recall L.T. asking about whether he had changed her clothing.

[48] The trial judge was not required, as the appellant asserts, to treat the preliminary inquiry evidence as adopted by M.G. at trial, and thus to consider it part of his trial testimony for the truth of its contents. It would have been an error for her to have done so. A prior statement is only adopted at trial where the witness testifies that they made the statement and that based on their present memory, the statement is true: R. v. Abdulle, 2020 ONCA 106, 149 O.R. (3d) 301, at para. 136, leave to appeal to S.C.C. refused, 39175 (August 20, 2020). That second condition was not met here.

[49] The misapprehension of evidence argument is premised on M.G. having adopted his preliminary inquiry statements at trial. That premise is not made out. This ground of appeal therefore fails.

[50] I would add that even if the statements had been adopted by M.G., the trial judge would not have been required to give them the effect for which the appellant contends, given the “very little reliance” she put on his evidence.

Issue d): The Trial Judge Did Not Give Improper Effect to the Absence of a Motive to Lie

[51] The appellant argues that on three occasions, the trial judge referred to what was an absence of a motive for L.T. to lie. The trial judge referred to L.T.’s evidence that she “never had an axe to grind with” the appellant, and twice to her hesitation or delay in reporting as the result of her “torment” over making a decision that would affect people she considered family and “emotional issues with which she was grappling in the days following the assault.”

[52] The appellant submits that the trial judge improperly used these findings to buttress her finding that L.T. was telling the truth and shifted the onus to the appellant to provide a reason why she would make up the allegations.

[53] It is well established that simply because a witness has no apparent reason to lie, it does not follow that they must be telling the truth. A trial judge is not permitted to jump from the former conclusion to the latter, or to use the lack of an apparent motive to lie in support of the credibility of the witness: R. v. S.W. (1994), 18 O.R. (3d) 509 (C.A.), at pp. 16-17, leave to appeal refused, [1994] S.C.C.A. No. 290; R. v. Mirzadegan, 2019 ONCA 864, 2019 CarswellOnt 17941, at para. 14. However, that is not what the trial judge did in this case.

[54] A trial judge is required to grapple with any defence allegation that a complainant has a motive to fabricate. In doing so, the trial judge may find that there was no apparent motive to lie, as this is responsive to the defence position. No error occurs in such a case if “the trial judge [does] not cross the line and use this rejection [of the defence position] to bootstrap the credibility of the [complainant]”: R. v. P.S., 2019 ONCA 637, 2019 CarswellOnt 12663, at para. 59.

[55] L.T. was cross-examined at trial about the delay in reporting to the police and attending the hospital for testing, since given her occupation she knew these steps were to be taken promptly. L.T.’s explanation was that the cause of any delay was her friendship with the appellant and his family and a concern about the consequences of a report for them. In closing submissions at trial, counsel for the appellant argued that L.T.’s delay in reporting and attending for testing at the hospital were because she knew she had no reason to go — in other words the trial judge was asked to reject L.T.’s explanation for the delay. The trial judge’s statements about L.T.’s reasons for delay in reporting are not findings of the lack of an apparent motive to fabricate — they are findings that L.T. was telling the truth about her reason for any delay in reporting; they were directly responsive to the position advanced by the defence.

[56] Read in context, the trial judge’s statement that L.T. had no “axe to grind” is related to her other findings about the relationship of friendship with the appellant and his family, which was the basis of L.T.’s explanation for the alleged delay in reporting the defence had raised. Even if it could be read as a finding of a lack of an apparent motive to lie, I would not consider it to be a finding improperly made given that in cross-examination questions had been put to L.T. that suggested she had a financial motive to lie. Nor was the finding improperly used. The trial judge gave extensive other reasons for believing L.T. and did not cross the line and use any finding of an absence of a motive to fabricate to bootstrap her credibility finding.

[57] Accordingly, I would not give effect to this ground of appeal.

Issue e): The Trial Judge Did Not Mischaracterize the Defence Evidence as a Precursor to Rejecting It

[58] The appellant complains of various characterizations that the trial judge gave to his evidence, which he argues were inaccurate or unfair. For example, he asserts that the trial judge inaccurately characterized his evidence as “designed to portray himself as an unwitting and innocent participant in a weekend with women who … were morally and physically repugnant to him”, and to have a “theme” — that the appellant found the complainants “to be repulsive on that night.” He argues that these characterizations led the trial judge to reject his testimony.

[59] I do not accept this argument.

[60] It was open to the trial judge to infer, from the appellant’s evidence, that he was saying that he considered the complainants to have acted in a way that was particularly inappropriate and extremely distasteful to him. He testified that K.T. had urinated on herself and found it amusing; that the party ended as “there was no sense of [continuing] drinking if those two girls were like pissed, or urinating on themselves, that was disgusting”; that K.T. twitching and talking in her sleep on the couch led him to observe that “this is going to be ridiculous” and “she’s weird”; that M.G. told him that he should have put L.T. in the garage because she was puking all over the place, including on his mattress, which M.G. found amusing; and that L.T. had kissed him when departing as a way “to redeem her embarrassing behaviour”.

[61] The appellant also complains that the trial judge was critical of his apparent attempt to portray himself as not close to L.T. and K.T., because the evidence was uncontested that the closer relationship was between them and the appellant’s wife. There is no merit to this complaint. The trial judge acknowledged the closeness of that latter relationship. She was entitled to view the appellant’s evidence as an attempt to portray himself as not close to L.T. and K.T. and as an attempt to distance himself from them, separate from any relationship that L.T. and K.T. shared with his wife. The appellant gave evidence that K.T. and L.T. were not his “personal friends”; that he did not really talk to them; and had “no interaction” when they previously visited. The appellant was cross-examined on his evidence that L.T. kissed him on the cheek when she left. When asked whether L.T. and K.T. regularly kissed on the cheek in greeting or farewell, the appellant was at pains to minimize his then-current knowledge of them both.

[62] The trial judge gave a number of reasons for assessing evidence of the appellant as not credible or reliable. The deference owed to these assessments extends to her characterizations which were drawn from and rooted in the evidence. No palpable or overriding error is asserted or shown.

[63] I would reject this ground of appeal.

Issue f): The Trial Judge Did Not Err in Allowing the Crown to Elicit Details of a Conversation Between the Appellant and His Wife

[64] The appellant argues that the trial judge should not have permitted the Crown, during cross-examination, to question the appellant about a conversation he had with his wife about the events of the weekend, as a testimonial privilege attaches to marital communications. He submits that the error was exacerbated because the trial judge relied on the appellant’s evidence about the conversation.

[65] I would reject this ground of appeal.

[66] L.T. and K.T. testified that they told the appellant’s wife on Sunday what had happened. The appellant’s trial counsel asked him during his testimony in chief how Sunday had unfolded, including by specifically asking whether the appellant’s wife had said anything to him that day. He said no. This was consistent with the appellant’s theory at trial that the events of Sunday and the visit continuing as it did, were inconsistent with L.T. and K.T.’s allegations.

[67] The Crown was entitled, in cross-examination, to follow up on this answer. No objection was made, or privilege claimed, when the Crown did so, and evidence that there had been a conversation was elicited.

[68] Section 4(3) of the Canada Evidence Act, R.S.C. 1985, c. C-5 provides that a spouse is not compellable to disclose a communication made by the other spouse during the marriage. This privilege — to withhold evidence of the communications — may be waived: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 41.

[69] The question by the appellant’s trial counsel invited disclosure of the communications to the appellant by his wife. The combination of that question, and the appellant’s answer, waived any privilege. The appellant did not assert privilege or object to the questioning during cross-examination, underscoring the waiver.

[70] The appellant’s argument that the trial judge erred in relying on the answers given in cross-examination is largely derivative of the argument that the evidence should not have been elicited, and thus falls with it.

[71] To the extent that the argument that the trial judge erred in relying on the evidence has an independent basis, it is that, in the appellant’s submission, the trial judge used the evidence to improperly infer guilt. He relies on the proposition that an accused’s demeanour in reaction to criminal allegations is frequently unreliable. There are two difficulties with this submission.

[72] First, we are not dealing here with evidence “tainted by the hallmark flaws” of demeanour evidence, such as when a witness describes their subjective impression of an accused’s mental or emotional state (e.g., calm or nervous) which is then offered as probative of guilt: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 75-78.

[73] Second, the trial judge assessed the appellant’s evidence about the conversation in the context of the first step of the W(D) analysis — whether she believed the appellant. She commented on the lack of believability of his testimony that the conversation had escaped his memory because it was not significant. (As he recounted it, he had been told by his wife that L.T. and K.T. had woken up not knowing what happened, felt violated, and might go to the police). She noted that the appellant was downplaying the significance of the conversation because the appellant was trying to show he had nothing to fear and was innocent. She concluded that his evidence about the conversation was an attempt to “emphasize a separation between himself and all of the events that transpired involving [K.T. and L.T.] during the evening of March 12, 2011, and none of it has a ring of truth” (emphasis added).

[74] A trial judge is permitted to use assumptions about ordinary behaviour to assess credibility: R. v. R.R., 2018 ABCA 287, 74 Alta. L.R. (6th) 323, at paras. 5-6; R. v. F.B.P., 2019 ONCA 157, 2019 CarswellOnt 2802, at para. 9. She was entitled to consider whether it was believable that the appellant would not initially remember that his wife had told him that family friends, who had spent the night at his home, felt violated and might go to the police, or that he would not consider that to be a significant conversation. She was entitled to determine that the evidence lacked a “ring of truth.”

[75] I would therefore reject this ground of appeal.

Issue g): The Ineffective Assistance of Counsel Ground of Appeal

[76] The appellant seeks leave to introduce fresh evidence, on the basis of which he contends that he received ineffective assistance from his trial counsel. [1]

[77] An appellant who challenges a conviction on the basis of ineffective assistance of trial counsel must establish: (i) the facts on which the claim is based, on a balance of probabilities; (ii) that trial counsel’s representation was incompetent; and (iii) that the incompetent representation occasioned a miscarriage of justice: R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 38, leave to appeal refused, [1996] S.C.C.A. No. 347.

[78] Incompetence is determined on a reasonableness standard, taking into account the particular circumstances of the case and point in time when counsel made the decisions challenged on appeal. The “wisdom of hindsight has no place in this assessment.” A deferential approach is taken to choices made by counsel, using a presumption of competence: Joanisse, at p. 41.

[79] The requirement that the appellant show a miscarriage of justice addresses the question of whether, presuming incompetence on the part of trial counsel, the fairness of the trial process or the reliability of the verdict was affected. Where the allegation of incompetence relates to specific decisions taken by counsel (for example, the failure to properly challenge the Crown’s case by cross-examining a specific Crown witness or to properly put the defence forward), the focus will be on the reliability of the verdict. That is, the question is whether there is a reasonable probability that had the specific failings not occurred, the verdict would have been different: Joanisse, at pp. 42, 45.

[80] Trial counsel was retained shortly before trial. He was then in his first year of practice. The appellant had initially been represented by experienced counsel (his “original counsel”) through pre-trial proceedings, at his preliminary inquiry, and on an unsuccessful motion to stay the charges. Trial counsel had articled for the appellant’s original counsel and, while doing so, had done some work on the appellant’s case.

[81] In late 2012, the relationship broke down between the appellant and his original counsel. In December 2012, the file was referred to trial counsel as his fees were more affordable. In early January 2013, the appellant signed a retainer agreement with trial counsel. The trial began on January 7, 2013.

[82] Trial counsel, in his affidavit and on cross-examination, maintained that he provided effective assistance to the appellant and did not fall below the standard expected of a reasonably competent practitioner. An important part of trial counsel’s trial strategy was to undermine the reliability of the evidence of L.T. and K.T. by highlighting their intoxication, and to undermine the reliability of M.G.’s evidence by reason of his marijuana use.

[83] The appellant does not argue that it was unreasonable to pursue either of these lines of attack, and it cannot be said that they were without any effect. The trial judge placed very little reliance on the evidence of M.G., noting his memory problems due to his long-term marijuana use. And the trial judge had to grapple with the level of intoxication of K.T. and L.T. and how that affected the reliability of their evidence.

[84] The essence of the appellant’s complaint is that trial counsel should have attacked the Crown’s witnesses on additional bases and presented a better defence. He makes six specific complaints.

[85] First, the appellant complains that trial counsel should have pursued an adjournment of the trial, as the appellant’s wife was in the hospital. The appellant argues that this would have allowed him to focus on the trial without distraction and to call his wife as a witness.

[86] I do not accept this complaint. Trial counsel in cross-examination stated that he was expressly instructed by the appellant to proceed with the trial without the evidence of his wife, and that the appellant did not want an adjournment — he wanted to clear his name. The appellant has not presented any evidence to the contrary.

[87] Nor is there any evidence of what the appellant’s wife would have said if called as a witness. Accordingly, the appellant has not shown a reasonable probability that the verdict would have been different if there was evidence from his wife.

[88] Second, the appellant submits that trial counsel did not explore a defence that L.T., K.T., and M.G. colluded in order to undermine the relationship between the appellant and his wife, motivated by their desire to access her large accident settlement fund. I do not accept this complaint.

[89] The appellant’s affidavit does not provide any evidence of the suggested motive to fabricate. Trial counsel testified that the appellant told him that the Crown witnesses had a motive to fabricate; based on what the appellant told him, he asked L.T. in cross-examination whether the appellant’s wife had co-signed a mortgage for her, which L.T. denied. He also asked L.T. whether she was aware of the accident settlement fund, to which L.T. responded that she was aware of an accident but not the compensation.

[90] Trial counsel was not provided with anything that imbued the alleged motive to fabricate with an air of reality that would justify any other questioning. Trial counsel testified that he asked for the opportunity to discuss the issue with the appellant’s wife and to call her as a witness, but that the appellant did not want that to occur.

[91] Nor is there anything in the fresh evidence that shows what any other inquiries concerning the motive to fabricate theory might have revealed. There is, for example, no evidence of the co-signed mortgage the appellant criticizes trial counsel for not uncovering.

[92] Third, the appellant submits that trial counsel should have objected to the Crown’s cross-examination of the appellant about his conversation with his wife. However, trial counsel explained in cross-examination that based on his preparation with the appellant, he asked the appellant in chief whether his wife had said anything to him. His purpose was to elicit that nothing was said. Since it would have been expected that his wife would have said something if the events of the weekend had unfolded as L.T. and K.T. alleged, this answer was consistent with the defence theory. Once he had led that evidence, trial counsel did not consider himself in a position to object when “the Crown then builds on that in her cross-examination.”

[93] In my view, the criticism of trial counsel not objecting to the Crown’s cross-examination is the product of hindsight, rather than a valid criticism taking into account the time at which the decision of trial counsel was made. This criticism therefore does not support a finding of ineffective assistance of counsel. The decision to ask the question in chief was consistent with the appellant’s theory that nothing untoward involving him had occurred; it is not clear how trial counsel could have objected to cross-examination on the answer, nor anticipated that the cross-examination would unfold as it did.

[94] Fourth, the appellant complains that trial counsel did not suggest to L.T. or K.T. while cross-examining them that sexual touching never occurred.

[95] A question by counsel is not evidence — only the answer is. Trial counsel challenged the reliability of L.T. and K.T.’s allegations. They maintained their assertions about what occurred. There is no basis to conclude that if the specific suggestion now raised had been put to them, L.T. or K.T. would have acceded to it or altered their evidence.

[96] Fifth, the appellant criticizes trial counsel for not pursuing an alternate suspect application to pursue the defence that M.G. was responsible for the assaults. There is no evidence that such an application would have made any impact on the trial. Trial counsel testified that he did not feel restricted in what he could pursue by reason of the absence of an application, M.G. was asked whether he had committed either sexual assault and denied it, and the trial judge turned her mind to whether M.G. was the perpetrator but found otherwise.

[97] Sixth, the appellant submits that trial counsel ineffectively litigated the identification issue by not asking the appellant what colour t-shirt he was wearing, and ineffectively cross-examining L.T., K.T., and M.G. to undermine identification based on what was worn.

[98] A factual assertion at the centre of these complaints is that the appellant was wearing a dark t-shirt on the evening in question and that he had told his original counsel and trial counsel that fact. In my view, the appellant has not established this on a balance of probabilities.

[99] The appellant’s original counsel gave evidence that she has no recollection of the appellant advising her he was wearing a dark t-shirt. That evidence is consistent with an absence of any notation to this effect in her file, and her agreement that although the appellant was identified based on the white-t-shirt, she had no information when she transferred the file to trial counsel to contradict L.T. or K.T.’s evidence about the appellant wearing a white t-shirt.

[100] Trial counsel also had no recollection of receiving any such advice from the appellant.

[101] The timing of the appellant’s assertion in this regard detracts from its believability. The notes that the appellant took during the preliminary inquiry do not comment on L.T. or K.T.’s evidence that he was wearing a white t-shirt, although they comment on other inaccuracies he thought existed in their evidence. The appellant’s original counsel fielded an initial complaint from him about trial counsel’s performance after the conviction. She had no recollection of the appellant saying, during the course of the complaint, that he had worn a dark t-shirt. Correspondence on behalf of the appellant to trial counsel setting out assertions of ineffective assistance began in 2015, without any allegation that this specific advice had been given to trial counsel. An affidavit of trial counsel in response to the assertions that were made was delivered in February 2016. The appellant did not assert that he had told his original counsel and subsequently trial counsel that he was wearing a dark t-shirt until his affidavit delivered in May of 2017.

[102] The appellant criticizes trial counsel for: (i) not cross-examining M.G. on his criminal record; and (ii) not putting to him his preliminary inquiry evidence that he could not recall what he, or anyone else, was wearing on the evening in question, except that he “could speculate” on what one person was wearing. This criticism focuses on M.G.’s trial evidence in which he said that he “thinks” the appellant was wearing a white-t-shirt.

[103] Trial counsel cross-examined on aspects of the criminal record, the full extent of which was introduced during examination in chief. The trial judge took into account M.G.’s criminal record and that it included crimes of dishonesty.

[104] The trial judge did not place much reliance on M.G.’s evidence, for a variety of reasons. She appears to have credited it only where it was consistent with other evidence and she expressly stated it did not turn the tide of the trial. In light of this, cross-examination on the difference between M.G.’s preliminary inquiry evidence (including its offer to speculate) and what he said he “thinks” at trial, had it occurred, was unlikely to have caused the trial judge to take a different view of M.G.’s evidence. In any event, the absence of cross-examination on these points does not give rise to a reasonable probability that a different verdict would have resulted.

[105] The criticisms of trial counsel’s cross-examinations of K.T. and L.T. on their identification evidence are also not established.

[106] K.T. testified both at the preliminary inquiry and at trial that the appellant was wearing a white-t-shirt. She also says that she saw him get up from the couch. The appellant’s complaint focuses on the fact that K.T. did not mention the white t-shirt in her police statement. She was cross-examined on this at trial. She explained that the police had not asked about this. She had told the police that she actually saw the appellant at the end of the couch. The extent of the cross-examination on any discrepancy with the police statement was reasonable in the circumstances.

[107] The appellant complains that L.T. should have been cross-examined more effectively. At the preliminary inquiry, she said she identified the appellant because of the white t-shirt. At trial, she referred to both the white t-shirt and the differences between M.G.’s build and that of the appellant.

[108] L.T. referred to the difference in builds first when invited by the Crown, in chief, to contrast them, and then in response to a question in cross-examination regarding whether M.G. was wearing a white-t-shirt. The evidence on the fresh evidence motion is that the differences in the builds of M.G. and the appellant were significant and obvious. It is therefore doubtful that confronting L.T. with her preliminary inquiry evidence would have established the absence of distinguishing features between these two individuals.

[109] None of the criticisms establish that counsel’s performance fell below a standard of reasonableness or that a miscarriage of justice occurred.

The Sentence Appeal

[110] The sentence appeal was not pursued in oral argument. The appellant’s factum does not identify any basis to conclude that an error of law or principle affected the sentence, or that it is demonstrably unfit. There is therefore no basis for appellate intervention: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 41 and 44.

D. CONCLUSION

[111] I would admit the fresh evidence, but would dismiss the conviction appeal. I would also refuse leave to appeal sentence.

Released: August 27, 2021 “C.W.H.”

“B. Zarnett J.A.”

“I agree. C.W. Hourigan J.A”

“I agree. Coroza J.A.”

[1] The fresh evidence includes affidavits of the appellant, trial counsel, original counsel, original counsel’s former articling student and former assistant, and transcripts of cross-examinations on the affidavits (and in one case, written interrogatories and responses).