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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220107 DOCKET: C66972

Strathy C.J.O., Hourigan and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

G.M.C. Appellant

Counsel: Scott Hutchison and Carly Peddle, for the appellant Sunil Mathai, for the respondent

Heard: November 23, 2021

On appeal from the conviction entered on January 31, 2019 by Justice Gregory A. Pockele of the Ontario Court of Justice.

Strathy C.J.O.:

I. BACKGROUND

[1] After a 12-day trial in the Ontario Court of Justice, the appellant was convicted of three counts of assault contrary to s. 266 of the Criminal Code, R.S.C., 1985, c. C-46, one count of assault with a weapon contrary to s. 267(a), one count of failure to comply with an undertaking contrary to s. 145(5.1), and one count of failure to comply with a recognizance contrary to s. 145(3). He pled guilty to one count of failure to comply with a court order. He was acquitted of sexual assault, criminal harassment, three additional counts of assault, and one additional count of breaching a recognizance.

[2] The appellant was a police officer with the Waterloo Regional Police and the complainant had been a legal assistant for a criminal defence lawyer. They began a romantic relationship in 2011. Shortly thereafter, the complainant moved into the appellant’s home, where they lived with C., the appellant’s son from a previous relationship. The appellant and the complainant subsequently purchased their own home and had a child of their own, J., born in April 2015.

[3] The complainant alleged that the appellant assaulted her seven times between 2013 and 2015 and that he sexually assaulted her in 2014. The complainant did not report her allegations to police until October 2016. By then, the parties had separated, but were locked in acrimonious family law proceedings relating to custody of and access to their son. The appellant had been subject to a family court order prohibiting him from communicating with the complainant.

[4] The Crown theory was that the appellant was extremely jealous, had a quick and occasionally violent temper, and had vented his rage on the complainant.

[5] The defence theory was that the complainant had a motive to fabricate in relation to the ongoing legal dispute concerning J., that she had friends in various police agencies, and that she had manipulated the police to achieve her objectives.

[6] As the trial judge noted, the credibility and reliability of the complainant and the appellant was a central issue at trial.

II. THE OFFENCES AND THE TRIAL JUDGE’S REASONS

[7] The following brief overview of the offences for which the appellant was convicted will provide context for the analysis that follows. Additional details will be added as necessary for the analysis.

(1) Count 1 – May 25, 2013 – The 911 call

[8] The complainant alleged that the appellant assaulted her when she returned home one evening after meeting her sister, instead of having dinner at home. Upon her return, the appellant allegedly called the complainant demeaning names and questioned her about her whereabouts that evening. When the complainant allegedly removed her engagement ring, the appellant threw it at her and told her to pack her belongings and leave the house. She testified that, when she entered the basement to retrieve one of her two cats, the appellant pushed her into the washing machine, causing injuries to her chest, head, and knee. The complainant said she then went to retrieve her car keys, at which point the appellant pushed her again, causing her hip to hit the kitchen counter. The appellant then made an unsuccessful attempt to push her down the stairs as she went to retrieve the cat.

[9] The complainant retrieved the nearby phone, ran upstairs, and called 911, but the appellant took the phone from her and hung up. The complainant ran back downstairs, and the appellant threw what the complainant thought was a bin of clothing at her. The dispatcher called back multiple times and eventually got the complainant on the line.

[10] The complainant did not mention an assault to the 911 dispatcher during the call. However, she told the dispatcher that she was trying to leave the house, and the appellant was not letting her take her cats. She was overheard telling the appellant not to be mad at her. The police attended the house and helped the complainant leave. The complainant testified that she told her brother and sister about the assault the evening it transpired, her friend and colleague Ms. D. on the following Monday, and a doctor several months later. Ms. D. testified that she observed bruising on the complainant sometime in the spring of 2013.

[11] The appellant acknowledged that he had an argument with the complainant, but he denied shoving or pushing her. He recalled trying to keep the cat in the basement, but denied that the complainant went downstairs near the washer and dryer to retrieve it.

[12] With respect to this count, the trial judge recognized that the complainant’s evidence had been “shaped to some degree”, but concluded that there was no material inconsistency between the complainant’s testimony that she had been assaulted and the 911 call in which she made no mention of assault.

(2) Counts 2 and 3 – October 6, 2013 – Common assault and assault with a weapon

[13] The appellant and the complainant had an argument after the appellant received a message from a female colleague. The complainant wanted to end her relationship with the appellant. The complainant testified that the appellant threw a bin of clothing at her while she was descending the stairs, hitting her in the back of her head and causing her to fall to the floor. She testified that, when she tried to retrieve a phone to call the police, the appellant choked her and said, “I could fucking kill you”. She then ran out of the house and drove away. The complainant testified that after the assault she had trouble breathing and swallowing, her neck was sore and bruised, and she concealed the bruising with makeup and clothing. A doctor’s report stated that there was no obvious bruising on the complainant’s neck, but that she was wearing makeup over the area. Ms. D. recalled seeing bruising on the complainant’s neck in the fall of 2013 and observed that she was having difficulty speaking.

[14] The appellant testified that he pushed the complainant in response to her hitting him. He also testified that he said “I could fucking kill you” because he was angry that she had hit him. The appellant denied throwing a bin at her or choking her. He acknowledged that the complainant had complained of soreness in her neck, which he attributed to the push.

[15] The trial judge found that this was “one of the stronger cases the Crown advanced” and accepted the evidence of the complainant and the evidence of Ms. D., who observed the bruising and the symptoms of a sore neck. He also accepted evidence of the complainant having attended a doctor’s office as rebutting the allegation of recent fabrication. He rejected the appellant’s evidence as incredible and as insufficient to raise a reasonable doubt. He also found corroborative evidence in emails sent by the appellant after the incident, in which he expressed responsibility and remorse.

(3) Count 7 – November 2014 – Assault (Kneeling)

[16] The complainant testified that the appellant assaulted her after she refused to accompany him on a visit to his friend. She said that he pushed her onto the bed and put his knees on either side of her, pinning her forearms with his knees. The complainant said that she freed herself by striking his genitals and then ran to the basement, where she locked herself in the bathroom and attempted to call a friend, Ms. W. The complainant texted photos of bruises on her arm to Ms. W. and also told Ms. D. about the incident.

[17] The appellant admitted he had an argument with the complainant but denied assaulting her.

[18] The trial judge convicted the appellant on this count, accepting the evidence of the complainant and the two independent witnesses, whose evidence refuted recent fabrication and provided some corroboration of the complainant’s allegations and injuries. He found that the appellant’s evidence did not undermine the credibility of the prosecution witnesses and did not raise a reasonable doubt.

(4) Compliance Charges

[19] In the course of an access visit, the appellant delivered a diaper bag to the complainant, containing a “communications book” and various cards, documents, and pictures. By doing so, it was alleged, the appellant communicated with the complainant contrary to the family court order. It was also alleged that the appellant sent the complainant an e-mail in breach of his recognizance.

[20] In finding the appellant guilty of breaching an undertaking, the trial judge found that the appellant’s own evidence established that he had communicated with the complainant. In finding the appellant guilty of breaching his recognizance, the trial judge relied on the appellant’s guilty plea for another offence, in which he conceded that his e-mail communications with the complainant exceeded the scope of the family court order.

III. ISSUES

[21] The appellant raises three grounds of appeal:

1. Judicial notice: whether the trial judge took judicial notice of matters that fall within “memory science”, relying on his own understanding of how memories operate and, if so, whether he made improper use of memory science to support his findings of fact.
2. Uneven scrutiny of the evidence: whether the trial judge applied uneven scrutiny to the Crown and defence evidence by (a) forgiving inconsistencies in the Crown’s case; (b) making improper use of the appellant’s demeanour and imposing a higher standard on the appellant because he was a police officer; and (c) relying on evidence of the appellant’s discreditable conduct to discredit him and infer guilt.
3. Reasonable apprehension of bias: whether statements and interventions made by the trial judge compromised the appearance of trial fairness and gave rise to a reasonable apprehension of bias.

[22] The appellant submits that all three errors impacted the trial judge’s findings on the central issue of credibility and that a new trial is required.

IV. ANALYSIS

(1) First Issue: Judicial Notice

[23] Counsel for the appellant argued that the trial judge’s commentary on memory went beyond the usual knowledge that judges apply as lay persons. They maintained that the trial judge’s discussions of how memories are formed, short- and long-term memory, and the capacity to recall memories all suggested he was applying memory science theory. Counsel submitted that if the trial judge was going to rely on this theory, he should have informed the parties and permitted them to make submissions on it.

[24] At the outset of his lengthy reasons for judgment, the trial judge made some general observations about “the most basic and important principles in our criminal law”, including the presumption of innocence, the burden of proof on the Crown, the need for proof beyond a reasonable doubt, and the principles in R. v. W.(D.), [1991] 1 S.C.R. 742. He then discussed some of the principles applicable to the weighing and assessment of evidence and the means of testing the credibility and reliability of witnesses. He concluded:

In addition to these principles courts often refer to the [appellate] decisions, R. v. White, [1947] S.C.R. 268 and [R. v. Colbert, 2006 CarswellNfld 72]. Reading these cases, there are 11 different elements of demeanour evidence discussed, including whether the witness exhibited intelligence, clarity, reluctance to testify, evasiveness, reticence, and other similar factors in their testimony. More importantly, these cases provide clear direction that a witness ought not to be disbelieved unless the evidence was illogical or unreasonable, unless there is contradictory evidence and unless there is something in the evidence that brings discredit to the witness. These last three considerations were brought into play in the arguments of the defence and of the Crown and in the manner the witnesses were cross-examined.

[25] After these observations, which are not impugned, the trial judge made some comments about memory:

Each judge is left to his or her own devices in making these assessments. Judges are expected to integrate our life experiences with the reality of the world to come to conclusions as to what is logical and reasonable. Similarly, we are left on our own to determine the theory for whether a memory is good or bad. Judges rarely hear expert evidence concerning memories. The exception is when expert witnesses are called with respect to the memories of children, repressed memories, memories of post-traumatic stress victims, other unique and vulnerable witnesses.

Judges are frequently presented with different contrasting memory theories with no evidence or scientific support for the point being argued. The most frequent point being [that] the witness should have remembered […] a particular fact, and having not done so, should not be believed.

In these arguments that are made to a judge to support whether a witness is credible or incredible, contrasting memory theories are suggested. For example it will often be suggested that memories are a record of an individual's experience of events, or, alternatively, that a memory should be like a record of the event, like a video or audio recording. Arguments are made that we should expect memories of experienced events to be complete and other arguments would be made that a normal memory necessarily features forgotten details and gaps, and those gaps ought not to be an indicator of accuracy.

It is sometimes argued that memories typically contain only a few highly specific details. It will be argued that a witness should, and sometimes it is argued that [a witness] should not be able to have specific detail and long-term memories. This was an important argument with respect to the assessment of [the complainant’s] evidence.

So, really, in the absence of expert evidence a judge is left alone to sort through the sorts of arguments that are presented in assessing the evidence based on memories.

Finally, a judge is left with questioning whether a witness has a good memory versus a bad memory as an over-generalization. Is there a rating skill for memories? I wonder whether the real test is our ability to access a memory at the time of testifying. [Emphasis added to identify portions challenged by the appellant.]

[26] On several occasions during his reasons, the trial judge returned to the theme of memory. For example, in commenting on the complainant’s evidence concerning the 911 call, the judge observed that although she had a “remarkable memory for detail”, she had been challenged in cross-examination concerning her memory of “whether [the appellant] took the cat to the basement or whether the cat ran to the basement.” In discounting inconsistencies in her evidence on this issue, the trial judge observed:

I can’t ignore that this evidence is being given in 2018 regarding an incident in 2013, reported in 2016. I don’t find it logical or reasonable that any witness would be expected to have an exact memory of such a relatively minor and subordinate element in such an upsetting and traumatic overall event in which she was told to leave home, pack up her things, and the police arrived in response to a 9-1-1 call.

[27] He added:

For the most part, cross-examination here focussed on details that were too minor to be considered as material inconsistencies and the omissions failed to rise to a level of significance over which a reasonably honest witness should be expected to consistently recall.

[28] The appellant refers to the trial judge’s assessment of the evidence of C. as an example of the trial judge’s improper use of memory science. C. was interviewed by police in 2017 concerning events that had taken place in 2013 and 2014, when he was 12 to 14 years of age. The trial judge noted that on cross-examination, C. had conceded that there was no reason for him to “access his memory” of these events until he was asked to do so in his 2017 police interview.

[29] In assessing the credibility and reliability of C.’s evidence, the trial judge observed that there was “a significant element [of] self-interest” in C.’s testimony in support of his father and that C. had not been present for many of the assaults. He observed:

With respect to capacity, his ability to make observations, fix those observations in his short-term memories. He wasn’t immediately present for the 9-1-1 incident or other subsequent assaults. [The complainant] testified he was present immediately after one assault and was part of the conversation between them.

I am not impressed that he had any distinct memories about any event that occurred at approximately the same time as these allegations of assault. I don’t know whether he observed things but had [no] reason to enter them in his short-term memory. I do not know whether a 12 or 13-year-old caught up on the edge of conflict between his father and his father’s spouse would choose to harbour these memories or try to forget them. I don’t know how long he would try to hold onto these.

His trial testimony, his evidence does not necessarily undermine the evidence of [the complainant] on these points. I prefer to think that the witness has limited long-term memories which can be accessed accurately.

[30] The appellant’s second concern relates to the trial judge’s assessment of the reliability and credibility of the complainant’s evidence. The trial judge observed:

I feel it is necessary to address the many inconsistencies [in the complainant’s evidence] raised by the defence. I earlier indicated I hold no expectation that trial testimony, a review of long-term memories related to the incident will be as accurate as an audio-video recording. I don’t know if observations are reduced to short-term memory. It’s human nature to make sense out of what is chaotic. It doesn’t mean that it is an accurate memory. Observations made in stressful situations of trauma are difficult to move into accurate short-term memories. When short-term memories are stored as long-term memories there are questions of accessing those.

With respect to the 9-1-1 incident we know it happened in May of 2013, reported in 2016, trial in 2018. Memories were reduced to a video statement in 2016, into a statement then a video statement in 2016, testified to 2 years later.

As to the core events, I find that her statements are a version of her experience that took place years earlier. They have been shaped to some degree, but not on the main points.

[31] Counsel for the appellant asserted that the trial judge used his theories of memory to discount inconsistencies in the complainant’s testimony and C.’s lack of memory related to the 911 call assault and the assault comprising Count 7. The trial judge dismissed inconsistencies in the complainant’s evidence before trial and during trial by noting the difficulty of recalling memories of stressful and traumatic events. Counsel highlighted some of the trial judge’s comments about “accessing memory” while testifying, and noted the significance of the fact that C. did not remember the relevant incidents when testifying. For example, the complainant testified that C. witnessed the aftermath of the Count 7 assault and spoke to her about it, but C. denied any memory of the incident. The trial judge dismissed this lack of memory as an issue of short-term versus long-term memory storage during a traumatic event. The trial judge also found that C.’s lack of memory relating to the 911 call did not impact either party’s testimony.

[32] Counsel for the respondent argued that the trial judge’s comments regarding memory were meant to convey only that memory fails with the passage of time. He submitted that the inconsistencies were peripheral and concerned minor incidents that took place some years earlier during more significant, upsetting events. He maintained that trial judges are able to take judicial notice of common sense matters like “memory fails over time”. Even if the trial judge’s comments constituted an improper use of judicial notice, respondent’s counsel maintained that the curative proviso would apply and that this error was harmless and had no impact on the ultimate decision.

[33] I would not give effect to this ground of appeal.

[34] The principles of judicial notice were recently explained by Brown J.A. in R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 31-38. For the purposes of this appeal, only the following principles need be stated. First, courts may only take judicial notice of facts that are (1) “so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons”, or (2) “capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy”: J.M., at para. 31.

[35] Second, as Brown J.A. observed in J.M., there are different forms of judicial notice. The form that arises in this case has been referred to as “tacit or informal judicial notice”. This involves the trier of fact drawing on “common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial”: J.M., at para. 32. One issue on this appeal is whether the trial judge applied “common sense or common knowledge”, or a specialized field of “memory science”, which should have been the subject of expert evidence.

[36] Third, judicial notice has a procedural dimension. As a matter of transparency and trial fairness, there may be occasions when a trial judge has an obligation to advise the parties that they are contemplating taking judicial notice of a fact and to invite them to make submissions. As Brown J.A. stated in J.M., at paras. 37-38:

More problematic are the occasions on which judges take judicial notice without the benefit of submissions from the parties. Such conduct by a judge lacks transparency, thereby risking the perception of the fairness of the hearing. It also risks crossing the boundary separating the notorious and readily demonstrable from the disputed and controversial, again risking the perception of procedural fairness. As put by [Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018)]: "Judges should not conduct their own research and come to the conclusion that facts are notorious, for, there is no opportunity for the parties to respond:" at §19.61.

Where a judge, on his or her own initiative, wishes to take judicial notice of a fact or state of affairs that bears on a key issue in a proceeding, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response: [David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020)], at p. 582.

[37] The trial judge identified some of the principles that judges are required to apply in the assessment of the reliability and credibility of evidence. He correctly observed that memory is rarely the subject of expert evidence, but in spite of this, trial judges frequently observe the frailties of memory and routinely caution themselves about the risks associated with memory.

[38] After his general observations with respect to the assessment of evidence, the trial judge simply expressed some propositions, grounded in common experience, that are familiar to every trial judge and lawyer and to lay people. Although he used different language, I would express these as:

• observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;
• a witness cannot be expected to have a faithful memory of minor incidents that occurred during a traumatic event and the inability to recall a minor or insignificant event does not detract from the witness’s overall reliability or credibility;
• it is human nature to try to make sense out of bits and pieces of memories about an event, and this may impact the accuracy of a witness’s testimony concerning events; and
• a child caught up in a conflict between his father and his father’s partner is likely to have conflicting loyalties and a judge should be cautious of accepting the child’s recollection, recounted several years later, about events that may not have been particularly significant to the child at the time.

[39] Although dressed up in unnecessarily scientific jargon, the trial judge’s application of these common experiences does not reflect error in his assessment of the evidence.

[40] I would dismiss this ground of appeal.

(2) Second Issue: Uneven Scrutiny of the Evidence

[41] The uneven scrutiny submission has three branches. First, the appellant asserts that the trial judge overlooked inconsistencies in the Crown’s evidence, improperly treating evidence called to refute recent fabrication as corroborative of the evidence of the complainant. Second, he submits that the trial judge made improper use of his observations of witnesses’ demeanour, including holding the appellant to a higher standard because he was a police officer. Finally, he submits that the trial judge erred by placing undue weight on the appellant’s discreditable conduct, particularly the vulgar, demeaning, and abusive language he directed at the complainant.

[42] Before turning to the specifics of this ground, and the parties’ submissions, I make a few observations on the law with respect to uneven scrutiny.

[43] The principles underlying uneven scrutiny as a ground of appeal were set out by Watt J.A. in 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. 274:

First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George, 2016 ONCA 464, 349 O.A.C. 347, at para. 35.

Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently. Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence: Howe, at para. 59.

Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: Howe, at para. 59; George, at para. 36.

Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassess and reweigh evidence: George, at para. 35; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

[44] As Doherty J.A. observed in relation to an uneven scrutiny ground of appeal in Howe, it is not enough to show that the trial judge failed to say something they could have said in assessing credibility or expressly set out the legal principles relevant to that credibility assessment, or that a different trial judge could have reached a different conclusion on credibility. The appellant must point to something in the reasons or the record that makes it clear that the trial judge applied different standards in assessing the evidence of the appellant and the complainant: at para. 59.

[45] This observation was recently referred to by Karakatsanis J. in R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, who observed that the Supreme Court has never ruled on the issue of whether uneven scrutiny is an independent ground of appeal. She noted that various provincial appellate courts have stressed that “it is a notoriously difficult argument to prove” and that “[c]redibility findings are the province of the trial judge and attract significant deference on appeal”: at para. 99. She expressed “serious reservations about whether “uneven scrutiny” is a helpful analytical tool to demonstrate error in credibility findings.” She continued, at para. 100:

As reflected in the submissions here, it appears to focus on methodology and presumes that the testimony of different witnesses necessarily deserves parallel or symmetrical analysis. In my view, the focus must always be on whether there is reversible error in the trial judge's credibility findings. Even in Howe, Doherty J.A. ultimately chose to frame the uneven scrutiny argument slightly differently: para. 64. Rather than say that the appellant had demonstrated uneven scrutiny of the evidence, Doherty J.A. explained that the essential problem in the trial judge's reasons was that he had "failed to factor into his assessment of [the complainant's] credibility his finding that she deliberately lied on important matters in the course of testifying in reply": para. 64. In appellate cases that have accepted an uneven scrutiny argument, there was some specific error in the credibility assessments: see, e.g., R. v. Kiss, 2018 ONCA 184, at paras. 88-106; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at paras. 37-43; R. v. Willis, 2019 NSCA 64, 379 C.C.C. (3d) 30, at paras. 55-62; R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 54. As shown in Howe, uneven scrutiny easily overlaps with other arguments for why a trial judge's credibility findings are problematic. It is therefore unsurprising to see uneven scrutiny tacked on to arguments like insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict.

[46] With those principles in mind, I turn to the first branch of the appellant’s uneven scrutiny ground – that the trial judge erred in his treatment of inconsistencies in the Crown’s case. I do so while keeping in mind that the ultimate question is whether the appellant has demonstrated something in the record that shows that the trial judge applied different levels of scrutiny in assessing the evidence of the appellant and the complainant, or whether there is some reversible error in the trial judge’s credibility findings.

[47] The appellant’s submission in relation to this issue largely concerns the trial judge’s treatment of the evidence of three witnesses called by the Crown to refute the allegation that the complainant had fabricated the assaults to gain advantage in ongoing family law proceedings concerning custody and access of the child of the marriage. The witnesses were the complainant’s older sister, the complainant’s co-worker, Ms. D., and the complainant’s friend, Ms. W. Much of their evidence, to which the defence did not object, consisted of communications the complainant made to them concerning the appellant’s conduct, including the alleged assaults. Two of the witnesses testified that they had seen bruises or injuries on the complainant, which she had attributed to the appellant’s abuse.

[48] With respect to the evidence of the complainant’s older sister, the defence argued that inconsistencies between her evidence and the complainant’s was due to the complainant’s subsequent fabrication of her allegations. The trial judge found that the discrepancies were immaterial and insignificant. He added that the sister’s evidence “did corroborate several significant traumatic events relied upon as part of the prosecution’s case.”

[49] The trial judge accepted Ms. W.’s evidence, finding that she was “quite integral as far as supporting witnesses and was vigorously cross-examined.” The trial judge observed that the cross-examination “made no inroads that the evidence of [Ms. W.] was intentionally false or had been molded by collaboration with [the complainant].” He added that “[i]t does provide some corroboration of an incident where [the complainant’s] arm was hurt and that she made some complaint about locking herself in the bathroom while pregnant.” The trial judge concluded that “the manner in which [Ms. W.] answered questions and her demeanour was consistent with a truthful witness. Any apparent inconsistencies were effectively rehabilitated, particularly inconsistencies on minor omissions or a lack of concordance between that and her oral statement.”

[50] Finally, the trial judge found that the evidence of Ms. D., who testified that she saw bruises on the complainant’s neck, was supportive of the complainant’s evidence. He found that the defence allegation of recent fabrication in relation to this count was “effectively countered by the evidence of the [complainant’s] attendance at the doctor’s office.”

[51] The appellant submits that the trial judge ignored or glossed over inconsistencies between the complainant’s evidence and the evidence of these witnesses. He also submits that the trial judge improperly used the complainant’s statements to the witnesses to corroborate the complainant’s accounts of events, instead of using them for the purpose they were tendered – to rebut recent fabrication. Finally, the appellant argues that the trial judge found corroboration in some evidence that was not corroborative.

[52] Counsel for the appellant acknowledges that the trial judge’s use of the complainant’s prior statements is not a free-standing ground of appeal, based on an improper inference of corroboration from a prior consistent statement. It is simply part of the submission that the trial judge applied uneven scrutiny to the evidence.

[53] Counsel for the respondent noted that the Supreme Court cast doubt on uneven scrutiny as an independent ground of appeal in G.F. Here, he submits that the trial judge did not convict on all counts and only convicted where the evidence supported the complainant’s allegations or where there was independent verification of injuries.

[54] With respect to the complainant’s sister’s evidence, respondent’s counsel argued that the trial judge did not rely on her evidence at all to convict – the only evidence relied upon in convicting on the count relating to the 911 call was the complainant’s evidence and the 911 call itself. The trial judge’s use of the language of “corroboration” when discussing the sister’s evidence was a misnomer. The evidence was in fact being used to rebut recent fabrication, and not for the truth of its contents. Like the sister’s evidence, Ms. W.’s evidence was used to rebut the recent fabrication claim and was not integral to the conviction on the 911 call count.

[55] I would not give effect to this first branch of the appellant’s uneven scrutiny submission, either standing alone or buttressed by the trial judge’s use of demeanour or bad character evidence. The appellant has not identified any palpable and overriding error in the trial judge’s assessment of the evidence or anything in the reasons or the record that actually demonstrates the application of different standards in the assessment of the evidence of the appellant and the complainant.

[56] It bears noting that the trial judge acquitted the appellant on three counts of assault and one count of sexual assault. On Counts 4 and 5, the alleged moving day assaults in July 2014, the trial judge found that there was no “supporting evidence” and he was unable to reconcile the conflicting evidence. On Count 8, the alleged assault involving a door in March 2015, the trial judge was left in reasonable doubt because the complainant acknowledged that it could have been an accident. On Count 6, the alleged sexual assault in July 2014, the trial judge stated that the appellant’s evidence had left him in reasonable doubt, and he had “limited supporting evidence”.

[57] In contrast, the trial judge convicted the appellant on counts where he not only accepted the complainant’s evidence and disbelieved the appellant, but also where there was corroborative evidence.

[58] With respect to Count 1, the complainant’s evidence was supported to some extent by the 911 call itself. The trial judge accepted the complainant’s explanation of why she did not report the assault during the 911 call itself or when the police came in response to the call, and why she waited until 2016 to disclose the incident to police. The trial judge also noted in his reasons that the evidence of Ms. D. was supportive of the complainant’s evidence on this count, not only to rebut recent fabrication but also to corroborate physical injury, because Ms. D. observed a red mark on the complainant’s wrist and a bruise where the appellant allegedly grabbed her.

[59] With respect to Counts 2 and 3 on October 6, 2013, the trial judge identified supporting evidence, including a doctor’s report, the observations of the independent witness Ms. D. concerning the complainant’s injuries, and the appellant’s apologetic email after the event.

[60] Finally, with respect to Count 7, the November 2014 assault, the trial judge found independent corroboration of the complainant’s allegations in the call she made to Ms. W. while she had locked herself in the bathroom to escape the appellant, and the text message she sent to Ms. W. showing bruises on her arms. He found that the evidence of Ms. W. and Ms. D. served to refute recent fabrication. Considering the evidence of the complainant and these two witnesses, the evidence of the appellant was insufficient to raise a reasonable doubt.

[61] I do not accept the submission that the trial judge made improper use of the appellant’s prior consistent statements. He correctly noted that contemporaneous statements to independent witnesses could be admitted to rebut the defence argument of recent fabrication. He was also entitled to rely upon the observations made by independent witnesses of the complainant’s injuries as corroborative of those injuries having been suffered.

[62] I would therefore reject this submission.

[63] In the second branch of his uneven scrutiny argument, the appellant submits that the trial judge relied excessively on demeanour in assessing credibility, and held the appellant to a higher standard because he was a police officer.

[64] The trial judge acknowledged that credibility was an important issue at the trial. He observed:

Demeanour evidence is a significant part of the overall assessment in weighing of evidence. On its own, it should never be determinative of whether a witness should be believed or not believed. In this trial, the demeanour of the primary prosecution witness and the accused is significant in this assessment. There were instances of evasiveness, inability, refusal to answer direct questions, and insistence on making argument rather than presenting evidence. There was evidence of extreme animosity, prevarication, hostility, self-interest. This was a dysfunctional toxic relationship.

[65] In commenting specifically on demeanour, and contrasting the demeanour of the appellant and the complainant, the trial judge stated the following with respect to the complainant:

I made earlier reference to demeanour evidence, For the most part [the complainant] testified without reluctance, without hesitation, responding to the questions put to her. She was respectful of the Court and the process. She had intelligence and education to communicate well. There were matters that were raised in cross-examination and if necessary to correct her evidence, she did. She was not easily led. When she was cross-examined and provided with more information and memory cues she provided more and better answers. A couple of times in her evidence it appears she either had no memory and she had periods of convenient forgetfulness. She wasn’t a perfect witness.

[66] In contrast, the trial judge said the following concerning the appellant’s demeanour:

While no Court should ever make a determination of reliability and credibility on demeanour evidence, [the appellant] exhibited poor demeanour and this becomes a negative factor in assessing evidence, He didn’t respond directly to questions. He often provided excessive detail on minute points as if was a failed attempt to impress the Court about his memory for detail, while not appreciating that detail had nothing to do with the case was tangential and virtually impossible to subject to cross-examination. Having regard to his experience in the Waterloo Police Services, I expected him to have some experience testifying in court, perhaps having received some training on how to present himself. He presented poorly. He was argumentative.

In cross-examination when answering questions he frequently used it as an opportunity to make legal argument, to attack the character of [the complainant], to attack the investigation and to impress the Court that [the complainant] was an unreliable witness. He had more than competent counsel to do that for him. For example, on many occasions he told the Court unprompted that [the complainant] was insanely jealous, manipulative, and had engaged in conniving behaviour since the day he first met her.

[67] I do not accept the appellant’s submission that the trial judge made inappropriate use of demeanour evidence in his evaluation of credibility.

[68] As we observed in R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45, reliance on demeanour must be approached cautiously and it is of limited value in the assessment of credibility:

This court has repeatedly cautioned against giving undue weight to demeanour evidence because of its fallibility as a predictor of the accuracy of a witness's testimony: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in Rhayel, at para. 85, "[i]t is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom."

Although the law is well settled that a trial judge is entitled to consider demeanour in assessing the credibility of witnesses, reliance on demeanour must be approached cautiously: see R. v. S. (N.), 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 26. Of significance in this case is the further principle that a witness's demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: R. v. A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 131; R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.), at pp. 313-14.

[69] As I have noted above, the trial judge specifically instructed himself about the limited use to be made of demeanour. Although an appellate court does not have the advantages of a trial judge in relation to the assessment of demeanour, a review of the record supports the trial judge’s observation that the appellant’s testimony “often provided excessive detail on minute points” and that during cross-examination, he took the “opportunity to make legal argument, to attack the character of [the complainant], to attack the investigation and to impress the Court that [the complainant] was an unreliable witness.” Appendix “C” to the respondent’s factum includes extracts from the appellant’s cross-examination containing numerous examples of the appellant refusing to answer questions directly, making argument, providing information not relevant to the question, and using the opportunity to gratuitously attack the complainant.

[70] The trial judge was entitled to take this behaviour into account when assessing the appellant’s credibility. While I question the validity or utility of the trial judge’s comment that he would have expected a police officer to have had training about how to present himself in court, this comment was followed by an observation that the appellant “presented poorly” and was argumentative – the latter comment is supported by the record.

[71] For these reasons, I would reject the submission that the trial judge made inappropriate use of the appellant’s testimonial demeanour.

[72] The final branch of the uneven scrutiny ground is the appellant’s submission that the trial judge erred in his treatment and use of bad character evidence, and applied an unbalanced approach to his analysis of the evidence of the conduct of the complainant and the appellant. The complainant had brought an ex parte application against the appellant in family court, without disclosing that he had offered to settle the issues of custody and access. She was ordered to pay the appellant $35,000 in costs, presumably as a sanction for her conduct. In assessing this evidence, the trial judge stated:

It is argued that [the complainant is] vengeful, blaming him for the breakup of the relationship. In a small way some of her conduct bring discredit to her under the issue of bias. She brought an ex parte application against him in family court without revealing that he had offered to negotiate the issues of custody and access in a letter sent by his lawyer. It was argued that her testimony was crafted only to show [the appellant] in the worse light. I am asked to hold that she only regards [the appellant] with an entirely negative attitude. [Emphasis added.]

[73] The appellant asserts that the trial judge all too easily forgave the complainant’s attempt to deceive the court in the family law proceedings, while applying a stricter standard to his conduct.

[74] In contrast, the appellant submits that the trial judge used evidence of his bad character – specifically, his crude, demeaning, and abusive language directed towards the complainant – to infer guilt. He submits that the trial judge’s conclusion that his conduct was discreditable, and that the complainant’s conduct only brought discredit to her in a small way, was indicative of an unbalanced approach to the assessment of evidence.

[75] There are many examples in the trial judge’s reasons of the appellant’s language. The appellant points to six occasions in the reasons. I will refer to one, contained in a text message, which the trial judge quoted as follows:

I hate your fucking guts you no good fucking whore. I let you in my child’s life and I knew I never should have trusted you, especially when you want me to choose between you and him. You’re a selfish cunt, I fucking hate you. I hate you. [1]

[76] The trial judge observed:

Within the evidence there are many, many examples of the manner in which [the appellant] spoke to [the complainant] directly, electronically. His choice of nouns, verbs and adjectives used in addressing [the complainant] were inconsistent with appropriate inter-spousal language. One would expect a police sergeant in his 40s speaking to a much younger wife to be more temperate. Instead, he was vulgar, profane, frequently referring to parts of the female anatomy. He was bullying in tone and frequently appears to be out of control. It was demeaning language, it was disrespectful.

[W]e must remember that the vocabulary used by [the appellant] towards [the complainant] continues in a vile, profane, vulgar and demeaning tone. It’s difficult to imagine why a man would use such language directed to another man let alone a woman, let alone a woman in a domestic relationship, particularly in the voice of a trained police officer. It speaks to rage and a loss of control.

[77] The limits on the use of bad character evidence were set out in R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 64:

As the majority of the Court of Appeal noted, the evidence of Mr. Calnen's after-the-fact conduct was admissible on the question of his credibility. Evidence of extrinsic discreditable conduct that is otherwise relevant and admissible with respect to an issue in the case may be used to assess the accused's overall credibility. In R. v. G. (S.G.), [1997] 2 S.C.R. 716, at para. 70, Cory J. laid to rest any doubt about this common sense proposition:

To require a jury to compartmentalize its thinking even further than this would be artificial and unnecessarily convoluted. It is a matter of common sense that evidence of bad character may reflect badly on the accused's credibility, and that the jury can use it as a factor in determining if the accused is likely to be telling the truth. This is not the same thing as suggesting that the accused is guilty because she is a bad person, or may have a disposition to commit the type of crime for which she is charged.

[78] I do not accept the submission that the trial judge used the appellant’s bad conduct to infer guilt. He referred to the appellant’s specific behaviour, not his character. The trial judge was entitled to find that the appellant’s abusive language, directed towards the complainant on many occasions relating to the charged events, “speaks to rage and a loss of control”. It also speaks to jealousy and therefore animus. He was also entitled to consider the complainant’s misconduct in the family law proceedings as of little relevance to her credibility in relation to the four counts on which the appellant was convicted.

[79] I would dismiss this ground of appeal.

(3) Third Issue: Reasonable Apprehension of Bias

[80] The appellant points to three interventions by the trial judge, which he asserts give rise to a reasonable apprehension of bias, thereby compromising trial fairness. While he acknowledges that, collectively, they do not warrant a new trial, he submits they may be relevant when assessing the other grounds.

[81] The respondent submits that the appellant’s failure to raise the issue of bias before the trial judge should be a complete answer to this ground of appeal.

[82] For the reasons that follow, I see no merit to this ground of appeal and it has no effect on the other grounds, which I reject in any event.

[83] Before examining the incidents identified by the appellant, I will briefly set out the applicable principles, which are not in dispute.

[84] Public confidence in the legal system is grounded in the perception “that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so”: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 57; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 23.

[85] In determining the existence of a reasonable apprehension of bias, the test is: what would an informed person conclude, having viewed the matter realistically and practically and having thought the matter through? Would the person think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly?: Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board, at paras. 20-21; R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, at para. 83.

[86] There is a presumption of judicial impartiality. That presumption may be displaced where the party establishes a “real likelihood or probability of bias”: Yukon Francophone School Board, at para. 25; see also Ibrahim, at para. 84.

[87] A judge’s comments during a trial cannot be considered in isolation. The inquiry is inherently contextual and fact-specific, and there is a correspondingly high burden on the party alleging bias: Yukon Francophone School Board, at paras. 25-26; Ibrahim, at para. 85.

[88] As a general rule, allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so. This can serve to alert the trial judge to the possible need to modify their behaviour or for a corrective jury instruction. It may also serve to create an evidentiary record and a ruling for the purpose of an appeal, if necessary: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 227.

[89] The appellant’s first submission on this issue concerns an incident that occurred after the trial judge made a ruling unfavourable to the defence. It arose in the following manner.

[90] The defence had challenged the complainant’s delay in reporting the alleged assaults to police, pointing out that she knew a number of officers and was familiar with the criminal justice system. During her cross-examination, defence counsel asked whether she was, at that time, “in a relationship” with a police officer whom she described as a “roommate”. The Crown objected to the question based on s. 276 of the Criminal Code. Defence counsel responded that he was simply trying to establish that “this woman is well connected across a number of police services in order to rebut her evidence that she was so lost that she could never report any of this.”

[91] The trial judge indicated that defence counsel could ask the witness whether she had a relationship with the individual prior to making her complaint, but that her relationship with the individual in the present could not be relevant. There followed a brief and evidently somewhat heated dialogue between the trial judge and defence counsel over the questions the latter proposed to ask the witness. The trial judge said, “Now, this line of questioning stops right here. It’s just totally irrelevant and immaterial. You can’t link it to anything that would be of any assistance to me in determining the issues so …”. The discussion continued, and after a few moments, the following exchange occurred:

Defence Counsel: Your Honour, I don’t think have to telegraph [the import of the question to the complainant] according to R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193.

The Court: You do if you have to establish relevance and materiality and since you choose not to do so, the ruling …

Defence Counsel: Well …

The Court: The ruling stands, [defence counsel]. We’re moving on.

Defence Counsel: Not that I …

The Court: We’re moving on, [defence counsel].

Defence Counsel: Respectfully, we will then have …

The Court: Get a court officer in here, please.

Defence Counsel: Can we take a break, please?

The Court: We will.

Defence Counsel: If that – may I just put something on the record, please?

The Court: Yes.

Defence Counsel: Okay. Again, may I file Lyttle?

The Court: You may file Lyttle.

Defence Counsel: Because I take it that the reason – may I ask why a court officer has to attend?

The Court: I like to have security in the courtroom when I’m hearing criminal matters and I think it enforces the need for proper decorum in the courtroom and that’s what I think I would like to have henceforth in this matter.

Defence Counsel: All right. And may I address that?

The Court: You may.

Defence Counsel: All right. Because really, with great respect, what you’re suggesting is that I’m bordering on contempt, which I disagree with and, according to Lyttle, I have – I’m duty-bound professionally to jealously protect my client’s interests. And – to sort of – to impugn my – my credit, Your Honour, with great respect, I don’t think is necessary and therefore I’d like a break to consider my options and whether or not I need to bring a motion …

The Court: We will take a break but I want to answer you. You’re not bordering on contempt but when I have counsel not accepting my decision, then I’m thinking that counsel is beginning to go down a path that I don’t want to have take place in this courtroom. And it is a criminal matter and I’m going to have security in this courtroom from now on.

Defence Counsel: And again, so that I can state what my concern is in view of what you’ve raised, the difficulty of course with your ruling is that it creates a Browne v. Dunn (1893), 6 R. 67 (U.K. H.L.) situation because then I can’t establish what I’ve been prohibited from doing so …

The Court: You’ve asked for a break. I’m giving you that break.

[92] After the break, the Crown withdrew its objection to what had appeared to be a question raising s. 276 concerns. The trial judge told defence counsel that he could ask the questions, but added that wide latitude to cross-examine did not mean “unbridled licence” and that cross-examination is “subject to the requirements of good faith and other limitations.” Defence counsel responded, “I have always conducted myself with good faith, with all due respect. I think I’ll stand on my reputation.” The trial judge said, “I’m not talking about your reputation. I’m talking about good faith in this trial.” To which defence counsel replied, “There’s good faith in this trial.”

[93] The appellant’s second submission on the issue of bias arose during the cross-examination and re-examination of the appellant’s mother, whom the defence called as a witness. Her evidence was brief and almost exclusively confined to one of the compliance charges. The Crown cross-examined her, also briefly, asking whether she saw anything in the relationship between her son and the complainant that caused her concern. She replied:

A: A couple of things that happened that did - did disturb me and - and - and bother me and it had to do with [J.].

Q: Okay. Because we're not dealing with [J.] in this case I'm gonna just let that go, okay.

A: Yes, all right.

[94] In re-examination, defence counsel asked about the witness’s answer with respect to J. The Crown objected on the basis that it was not a proper subject of re-examination. The trial judge asked defence counsel how the question was material and relevant. Defence counsel replied that he did not know, but asserted that he was entitled to an answer. The following dialogue ensued:

The Court: You're not unless it is material and relevant and I'm giving you that opportunity to – to argue and present that her answer on this point is material and relevant in this proceeding. It may be interesting but it's not material and relevant in a criminal process as it stands now. Make your argument and satisfy me.

Defence Counsel: How can I make an argument when I don't know the answer?

The Court: Well then that's the end of it isn't it.

Defence Counsel: Well that's your ruling.

The Court: That's my ruling.

Defence counsel: Thank you. Thank you for coming today ma'am. I know you spent the whole day here and it's a hard long day but I thank you for coming. All right.

The Witness: I spent nine days here sir.

[95] The third and final complaint regarding bias is an allegation that the trial judge unfairly pressured defence counsel to abbreviate or end his cross-examination of the complainant, who testified over five days in mid-May and mid-June of 2018. Her evidence in chief was conducted on May 15 and 16 and her cross-examination took place on June 11, 12 and 13.

[96] On the afternoon of June 12, the trial judge granted an adjournment to the following day because the complainant had a breakdown and was unable to compose herself after what the trial judge described as a “long and withering cross-examination”.

[97] The appellant takes issue with comments made by the trial judge when the complainant’s cross-examination resumed the following day, June 13, 2018. He submits the trial judge made several comments encouraging defence counsel to take shortcuts in the cross-examination and urging him to “get it done today”, in spite of counsel’s objections that he did not want to be rushed.

[98] In the course of these exchanges, the Crown raised a concern that the evidence should be completed that day because if that did not happen, there would be a break for several months over the summer before the trial resumed. The trial judge said, “Well, you can waive those concerns. If the staff is onside I’ll cut lunch back to half an hour today and we’ll go late until she’s done. We have to do what we have to do.”

[99] Defence counsel pointed out that he had personal and family responsibilities and was tired at the end of the day. The trial judge stated:

Well, let’s see where we’re at. We’ll take the bite out of lunch and if we have to – I’m not going to sit until 6:00 or 7:00 or anything like that, but we might have to go to 5:00. That’s about it. I’ve got to be – have considerations for the staff. They may have childcare responsibilities. I’ll have to talk to them about that. Let’s start off by taking a bite out of lunch today and seeing where we go.

[100] Later that morning, as defence counsel was about to cross-examine the witness on a prior statement, the Crown rose to provide a copy to the trial judge. There was a discussion about whether that was necessary, at which point the judge observed:

The Court: I’m just concerned of getting things moving because I’m seriously considering finishing your cross-examination today so any shortcuts we can take to get matters (unintelligible) would be appreciated.

Defence Counsel: Well, I just – with all due respect, I can’t be rushed. I trust that’s …

The Court: I’m not going to rush you. I’m not going to rush you but we’re going to stay late. So let’s get on with it so we can cover this material.

Defence Counsel: Well, I am. If it needs to be said, I haven’t been dragging. It’s been …

The Court: [Defence counsel], nobody is picking on you. I haven’t said anything. I’ve got to get this done. I’ve got a witness here who’s had a breakdown yesterday. We lost half a day. I’m going to sit late. If we have to order dinner in so everybody can be refreshed, we’ll do it, but we’re all going to share the pain and we’re going to get it done.

Defence Counsel: Right. And I have commitments and I can’t stay beyond a reasonable time as we discussed before the witness came in.

[101] Just before the lunch break, defence counsel asked the complainant about having witnessed assaults committed by the appellant on his son, C. This issue had not previously been raised in the complainant’s evidence and the Crown rose to state that if the defence raised it, the Crown would re-examine the complainant about it. The trial judge observed to defence counsel:

The Court: The Crown is indicating that if you want to open the door, they intend to try to walk through it. Do you want that lunch [break] to two o’clock right now and [defence counsel], it’ll give you a chance to get your thoughts consolidated?

Defence counsel: Yeah. I’d appreciate it. I think we could both have a little longer because it could well be that I …

The Court: I’ve got to pick up the time here. I have this matter coming back in September and I’m not – I’m going to tell you right now, this is a cross-examination where you’ve been accessing everything that this witness has said and answered and I’m not going to have cross-examination in September/October on what she said today based on a transcript today on matters that aren’t overwhelmingly material so I think it’s got to be done today and I think the witness is fragile and I don’t like the idea of working late. I’m well past the age when I’m in my prime after 4;30. We’ve got to get it done today. Let’s take the break. By the time we walk out of here – let’s just come back at two o’clock. We’ll be starting at two o’clock. We’ll have picked up at least half an hour on this and we’ll go from there. You know, the two of you, if you’ve got some issues you want to get into, talk about it so we can get to the heart of what’s being asked. Okay?

[102] At this point, defence counsel indicated that a somewhat longer lunch break might be helpful so that he could review his notes, because his cross-examination might be almost finished. The trial judge acknowledged that he could take more time, if required.

[103] As matters transpired, both cross-examination and re-examination were completed that afternoon.

[104] In addition to the foregoing incidents, the appellant’s factum identifies several interchanges between the trial judge and counsel, which he submits were critical, disparaging, or interruptive. I do not find it necessary to recount them in full for the purpose of evaluating this ground of appeal.

[105] In my view, the record in this case does not come close to displacing the presumption of judicial impartiality.

[106] First, I acknowledge that the trial judge’s call for security was demeaning of counsel, inappropriate, and very unfortunate. That said, it was triggered by counsel continuing to dispute a ruling made by the trial judge. That, too, was improper and regrettable. However, on a full review of the record, including the proceedings after the exchange and the entire course of the trial, this was an isolated incident in what was clearly a hotly contested and somewhat lengthy trial. Having regard to the entirety of record, it does not reflect bias.

[107] Nor do I see unfairness in relation to the re-examination of the appellant’s mother. She gave a non-responsive answer to a question during examination-in-chief, an answer that the Crown did not pursue. That did not open the door to re-examination. In any event, the trial judge’s ruling does not reflect bias.

[108] Finally, I do not accept the submission that the trial judge demonstrated bias or acted improperly in urging counsel to complete the complainant’s cross-examination to avoid having to continue her evidence several months later. That submission must be understood in the context of a witness whose evidence had occupied five days, three of them in cross-examination, and who had become emotionally distraught the previous day during a vigorous cross-examination. Looking at the issue in context and not in isolation, the record discloses that the trial judge recognized the challenges defence counsel was facing and made reasonable efforts to accommodate them.

[109] It is a bedrock principle of our criminal justice system that an accused person has a constitutional right to a fair trial. But that does not mean a trial without limits. While giving paramount consideration to the right of an accused to make full answer and defence, a trial judge has a public responsibility to ensure appropriate use of valuable public resources (courtroom and court staff time) and to ensure that other participants in the justice system (including witnesses and jurors) are not unnecessarily burdened. Given the circumstances identified by the trial judge, it was entirely appropriate for him to encourage counsel to seek ways to simplify and expedite the completion of the complainant’s evidence.

V. DISPOSITION

[110] For these reasons, I would dismiss the appeal.

Released: January 7, 2022 “G.R.S.” “George R. Strathy C.J.O.” “I agree. C.W. Hourigan J.A.” “I agree. David M. Paciocco J.A.”

[1] The actual language of the text message was: “I fucking hate ur fucking guts u no good fucking whore! I let u in my childs life and I knew I shud have never trusted u! Especially when u want me to choose btw u and him! U r a selfish fucking cunt! I fucking hate u! I hate u!”