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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2022-01-25 Docket: C66274

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Ray Sararas Appellant

Counsel: Amy Ohler, for the appellant Jennifer Trehearne, for the respondent

Heard: September 22, 2021 by video conference

On appeal from the convictions entered by Justice R. Cary Boswell of the Superior Court of Justice on October 26, 2017, with reasons reported at 2017 ONSC 6423, and from the sentence imposed on February 26, 2018, with reasons reported at 2018 ONSC 1328.

Rouleau J.A.:

OVERVIEW

[1] The trial judge convicted the appellant on three counts of gross indecency and three counts of sexual assault. He conditionally stayed the appellant’s convictions for gross indecency according to the principles in R. v. Kineapple, [1975] 1 S.C.R. 72, and sentenced the appellant to five years in a penitentiary. The appellant appeals both conviction and sentence. The sole ground of appeal from conviction is that he did not receive effective assistance of counsel at trial. The appellant outlines ten areas of concern, focussing primarily on trial counsel’s failure to conduct meaningful cross-examination of the complainants at both the preliminary inquiry and trial, failure to investigate defence evidence, failure to adequately prepare the appellant to testify and prepare for the trial generally, and failure to explore the possibility of collusion or offer any prepared resistance to the Crown’s application to adduce similar fact evidence.

[2] The appellant maintains that these failures led to a miscarriage of justice, and tenders three volumes of fresh evidence in support of his appeal.

[3] The Crown concedes that four areas of alleged ineffective assistance of counsel have been made out. These are trial counsel’s: failure to pursue in depth the nature and extent of the communications between the complainants as a precursor to an examination of any possible collusion; failure to pursue the issue of the appellant’s opportunity to commit the offences alleged to have occurred at bedtime; failure to challenge the complainants on inconsistencies between their police statements, their preliminary inquiry evidence and their trial evidence; and failure to challenge the complainants on their memories despite the historical nature of the allegations. The Crown maintains, however, that, despite these failures, the appellant has not met his onus of showing that there is a reasonable probability that the verdict would have been different had trial counsel explored the four areas noted above. The appellant’s convictions are therefore not the result of a miscarriage of justice.

[4] In the Crown’s submission, the appellant’s fresh evidence does not undermine the credibility of the three complainants. Given the striking similarity in the manner and circumstances in which the alleged offences were carried out, the Crown argues that its similar fact application would inevitably have been allowed, and the evidence against the appellant was thus overwhelming. Any attack suggesting that there had been collusion would certainly have been unsuccessful.

FACTS

[5] The allegations arise from the appellant’s work in a group home known as Highland Crossroads in 1984. Crossroads was a home for troubled children. The Children’s Aid Society regularly placed wards in that home. This was the case for the three complainants: E.E., D.P., and F.D.

[6] Through his work as a counselor at the Graphite Bible Camp, located in a nearby community, the appellant met Mr. and Mrs. Waterhouse, the owners of Crossroads. The appellant volunteered and, for a period, was employed at Crossroads. He would sleep there five nights a week in a little room under the stairs.

[7] The appellant testified at trial and denied the allegations. He explained that his duties were principally helping out by doing laundry, making lunches, and doing the dishes. He would also assist with bedtime preparation. The bedtime routine involved asking the children about their day and praying with them. According to the appellant, the children told him that the other workers at the home gave them backrubs at bedtime. The appellant followed suit.

[8] The complainants alleged that the sexual assaults and gross indecency took place during the backrubs given as part of the bedtime routine. The first complainant to testify at trial, E.E., recalled that the appellant sometimes participated in backrubs, but did not allege any assault at the group home. Instead, he testified that the appellant invited him to his house for the weekend. The first night, when the appellant came to tuck him in, the appellant gave E.E. a backrub and, after rolling him onto his back, began to rub his chest and stomach. He slid his hand under E.E.’s pyjama and tried to masturbate him. E.E. turned away and the appellant left the room. This is the only incident E.E. recalls. The next morning, E.E. asked to return to Crossroads, and the appellant and his wife drove E.E. back to the home.

[9] F.D. alleged that he was assaulted at the home on numerous occasions. He testified that the appellant would tuck him in if the owners of the home were busy. The appellant would sit on the side of F.D.’s bed, ask F.D. about his day and talk about God and Jesus. He would then massage F.D.’s chest and continue rubbing until he was touching F.D.’s genitals with his open palm and his forearm. F.D. cannot state specifically how many times this occurred but estimates that it was 50 times or more. On two occasions, F.D. recalled having ejaculated.

[10] D.P. testified about “at least” three very similar sexual assaults having occurred at bedtime while the appellant was tucking him in. D.P. also recalled another incident where the appellant brought D.P. into a clearing behind the house. There, the appellant made D.P. lay down and rubbed himself on D.P. At one point, the appellant put D.P.’s penis in his mouth for a few seconds. D.P. testified that, some 30 years after the assaults, he reported the assaults to his probation officer for the purposes of a pre-sentence report. The probation officer then reported the assaults to police, leading to these charges.

Trial Decision

[11] The trial judge identified the central issue as whether the alleged events actually took place. The trial judge accepted the evidence of all three complainants, finding that each had a remarkable recollection of the group home and the events that transpired there. The trial judge cited details in each of the complainants’ evidence that he found particularly compelling. He noted that there was no indication that the complainants’ testimony was inconsistent with the statements the complainants may have made on prior occasions.

[12] The trial judge accepted E.E.’s evidence that he had told his Children’s Aid worker, Mr. Barry, about the abuse. The trial judge explained that Mr. Barry apparently failed to report the assault because “fate intervened in the form of a murder at Highland Crossroads, and [E.E.’s] complaint, tragically, got lost in the shuffle.” This is a reference to the fact that, in July of 1984, a resident of Crossroads was murdered by another resident. Further, the trial judge acknowledged that both E.E. and D.P. had lengthy criminal records with convictions for offences of dishonesty. He nonetheless accepted their evidence, noting that E.E.’s criminal record was dated and D.P.’s evidence was compelling, detailed and several aspects were corroborated by other evidence. In addition, there appeared to be an absence of a motive to fabricate.

[13] With respect to the appellant’s evidence, the trial judge found that there was “nothing about his demeanour that would suggest he was not a truthful or reliable witness.” However, the trial judge focussed on two aspects of the appellant’s testimony that caused him sufficient concern that he rejected his evidence. The first was the appellant’s “concerted effort” to minimize his involvement with the children at the group home. The second was the appellant’s evidence as to how E.E. came to spend the night at his home. That explanation, according to the trial judge, “defie[d] belief”.

[14] The Crown asked the trial judge to consider the similarity of the allegations against the appellant as evidence that they had actually occurred. The trial judge agreed. He noted that:

(i) except for D.P.’s description of the events behind the house, there were many significant similarities in the complainants’ descriptions of events;

(ii) the number of occurrences was significant;

(iii) the complainants were credible and reliable; and

(iv) absent collusion, the improbability of coincidence was very high.

[15] The trial judge then went on to reject the notion that the complainants had colluded. Although the complainants had spoken to each other over the previous three decades, the trial judge was not persuaded that their discussions progressed “beyond very general comments” or that there was evidence of actual collusion. The trial judge found that it made no sense that the three complainants would collude 30 years down the road.

[16] The trial judge found that the risk of prejudice if the similar fact application were granted was low because the trial was by judge alone and no additional time was taken up to introduce it. The evidence was already part of the record and there was no risk that it would be misused. As a result, he allowed the count to count similar fact evidence.

FRESH EVIDENCE APPLICATION

[17] The appellant filed extensive fresh evidence in support of his allegations of ineffective assistance of counsel. The proposed fresh evidence consists of affidavits from the appellant, the appellant’s niece Nicole Armstrong, and trial counsel, transcripts of the cross-examinations of each affiant, trial counsel’s file, transcripts of the preliminary inquiry and discoveries, and correspondence between the appellant and trial counsel. Given the importance of the fresh evidence being tendered, I provide a summary of the significant points made therein.

(a) Appellant’s Evidence

[18] The appellant has no post-secondary education and no legal training. He explains that, before he testified in his defence, he had never testified or been cross-examined in any proceeding. He states that he first contacted trial counsel after he was released on a promise to appear. In the two years between first contact and trial, the two never had a substantive conversation about the case. The first exchange the appellant had with trial counsel was when he came to the courthouse for the preliminary inquiry. There were no further exchanges until the day of trial.

[19] The appellant indicates that he sent emails with notes raising various issues. They all went unanswered. Indeed, trial counsel never told the appellant what information would be useful to his preparation.

[20] According to the appellant, when he met with trial counsel on the morning of the preliminary inquiry, trial counsel spent the meeting discussing his experience in sexual assault cases and telling the appellant that the Crown bore the burden of proof. During the inquiry itself, trial counsel was so passive that the appellant surmised there must be a rule against cross-examining complainants in a pointed or aggressive fashion. At the end of the preliminary inquiry, trial counsel told the appellant that he would later be discovering the Waterhouses, who owned and operated the group home, as well as the Pothars, [1] who worked and lived at the home. As it later turned out, trial counsel discovered only the Waterhouses. The appellant learned that the Pothars were not discovered only when he was committed for trial in the Superior Court.

[21] Following the preliminary inquiry and before trial, the sole communication the appellant received from trial counsel was an email where trial counsel wrote “I expect you will take the stand to deny these allegations. The decision to testify will be yours, and you don’t have to decide until the close of the Crown’s case.”

[22] At trial, the appellant again wondered whether trial counsel was restricted in his cross-examination. Trial counsel later affirmed that he viewed the complainants as strong witnesses likely to be believed at trial. However, trial counsel did not disclose this to the appellant prior to trial. Further, it is only once the trial was already underway that trial counsel instructed the appellant on his testimony. This was done during a meeting of about five minutes over the lunch break immediately before the appellant took the stand. Trial counsel did not say what he would ask the appellant.

[23] The appellant describes his anxiety, confusion, and a feeling of abandonment when he took the stand. Trial counsel told him to answer questions put to him in cross-examination with “yes”, “no” or “I don’t remember”. He was to act indignantly if the Crown suggested guilt and remain polite throughout. Otherwise, the appellant was on his own.

[24] In the course of cross-examination on his affidavit, the appellant acknowledged that, in addition to the conversations at the preliminary inquiry and at trial, there had been one other conversation with trial counsel. This occurred sometime between discovery and trial, where trial counsel told the appellant how he had been impressed by the Waterhouses.

[25] Further, the appellant admitted in cross-examination that trial counsel had told him not to speculate and that, contrary to trial counsel’s instructions, he did end up speculating during his cross-examination at trial. There, he described how he thought a snowstorm must have been the reason Mr. Waterhouse asked him to pick up E.E. and why E.E. came to his house. He explained that he ended up speculating because he had not thought about some of the events from the summer of 1984 in almost 30 years. If only he could have gone over his testimony with his lawyer, his cross-examination would have, in his view, been much smoother.

(b) Evidence of Nicole Armstrong

[26] The appellant’s description of the minimal preparation he received from trial counsel is largely confirmed by the evidence of his niece, Nicole Armstrong. She indicated that she was present for every meeting the appellant held with trial counsel, including the five-minute lunch time meeting where trial counsel prepared the appellant for his testimony.

(c) Trial Counsel’s Evidence

[27] Trial counsel explained that he viewed the case as straightforward. He based his strategy on the appellant’s complete denial of the allegations. He explained that his preparation included reviewing disclosure and the appellant’s emails detailing his position.

[28] Trial counsel explained that he did not think there was any chance the appellant would be discharged at the preliminary inquiry. As a result, he approached the preliminary inquiry as an attempt to assess the complainants’ ability to testify. He decided not to press them on their evidence because he did not want to “tip his hand”. He did not believe that there was a reasonable basis for alleging collusion between the complainants because there was no evidence of a pending civil claim or that the complainants had discussed their evidence in detail. He did, however, challenge the similar fact application. He felt that his submissions in that regard were sufficient and that the trial judge would apply the law as required.

[29] After discovering the Waterhouses, trial counsel decided not to call them at trial because they were not present when the assaults were alleged to have happened and they had received no complaints. He was concerned that the Waterhouses would contradict the appellant’s evidence that he was never alone with the children. He had the same concerns with the Pothars and in any event, considered them to be minor witnesses.

[30] With respect to the complainants’ evidence, trial counsel thought he could undermine E.E. and D.P. through their long records for crimes of dishonesty. For F.D., he would argue F.D.’s bad hygiene was such that no one could possibly want to sexually abuse a teenager who regularly wet and soiled himself.

[31] Trial counsel maintained that he had properly prepared the appellant for his testimony. He acknowledged that it only occurred when the appellant was at court for the trial, but explained what was involved and gave illustrations as to the process that he followed. He maintained that it was not limited to five minutes and was adequate.

[32] In cross-examination, trial counsel acknowledged that, prior to the preliminary inquiry, he had not met the appellant, nor did he have a “substantive discussion … [or] a personal conversation with him.”

[33] However, trial counsel maintained that, from their very first meeting at the courthouse, he was preparing the appellant to testify. Those meetings occurred before court and during breaks at every stage of the proceeding.

[34] Although trial counsel acknowledged that a preliminary inquiry is an opportunity to lay the groundwork to impeach witnesses at trial, he conceded that he conducted very little cross-examination of the complainants.

[35] It was put to trial counsel that, during his cross-examination of E.E. at the preliminary inquiry, he had asked E.E. “almost no questions” about his single allegation and no questions about the appellant’s house where the alleged assault occurred. In addition, although he acknowledged that E.E.’s disclosure to his Children’s Aid worker about the assault was “a very important fact”, he never asked for the details of what E.E. told his care worker. Trial counsel justified his failure to pursue these lines of questioning by pointing out that E.E. “was almost bang on with respect to the details”. Trial counsel thought that “there was a risk that maybe something had been recorded by [E.E.’s Children’s Aid worker] and its another gold for the Crown”. In addition, trial counsel did not cross-examine E.E. on information in the police statements to the effect that E.E. and D.P. had discussed killing the appellant, and that D.P. seemed to think that the appellant had sodomized E.E.

[36] As for the cross-examination of D.P. at the preliminary inquiry, trial counsel had asked D.P. whether he spoke with anyone about the allegations but, when D.P. answered that he had spoken with E.E., trial counsel simply moved on. When asked to explain why he had not explored this further, trial counsel responded that he could have if he had “made that decision tactically, strategically.”

[37] Trial counsel was also asked regarding his cross-examination of F.D. at the preliminary inquiry. That cross-examination was equally brief and trial counsel did not probe F.D.’s statement to police, including F.D.’s statement that he called out to E.E. during an assault to “start some crap in the house”. In addition, trial counsel did not seek to clarify F.D.’s evidence that he and D.P. disagreed about room arrangements. Trial counsel explained that he viewed room arrangements and what F.D. may have called out as peripheral.

[38] In essence, trial counsel’s view was that cross-examination of the complainants on the details of the assaults was unnecessary. Details were peripheral and any inconsistencies in their evidence would be viewed as having little value due to the dated nature of the allegations and the youth of the complainants at the time.

ISSUES

[39] On the conviction appeal there is only one issue: did trial counsel’s ineffective assistance result in a miscarriage of justice?

[40] The appellant also seeks leave to appeal his sentence.

ANALYSIS

The Law

[41] It is well-established that a represented accused is entitled to receive effective assistance. This right flows, in part, from ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R 520, at para. 24. To succeed on the ground of ineffective assistance of counsel, the appellant must show that trial counsel’s assistance was so ineffective that the appellant’s conviction is the product of a miscarriage of justice: R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 57, leave to appeal refused, [1996] S.C.C.A. No. 347. Counsel’s conduct can result in a miscarriage of justice either by rendering the trial unfair, referred to as the procedural fairness branch, or by rendering the verdict unreliable, referred to as the unreliable verdict branch: R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 54.

[42] Regardless of the nature of the ineffective assistance or the resulting analytical route, appellants alleging ineffective assistance of counsel must establish three elements. First, they must prove the contested facts underpinning their allegation on a balance of probabilities. Second, they must demonstrate that trial counsel’s acts or omissions amounted to incompetence. Third, they must show that trial counsel’s ineffective performance led to a prejudice in the form of a miscarriage of justice: R. v. Archer (2005), 203 O.A.C. 56 (C.A.), at para. 119.

[43] Appellate courts measure trial counsel’s competence against a standard of reasonableness. The carriage of a defence at trial involves innumerable decisions that no two lawyers will navigate in the same way. In light of the wide range of options open to counsel, reviewing courts presume trial counsel to have acted competently and review counsel’s assistance deferentially without the distortion of hindsight: Joanisse, at p. 61. As Doherty J.A. explained, “[m]any decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction”: Archer, at para. 119.

[44] Where the verdict’s reliability is at issue, appellants must demonstrate that, had they received effective assistance, there is a reasonable probability [2] that the result of the proceeding would have been different: Joanisse at p. 64, citing Strickland v. Washington, 104 S. Ct. 2052 (1984) at p. 2068. A reasonable probability, lying somewhere between a mere possibility and a likelihood, satisfies the reviewing court that the verdict at issue cannot be taken as a reliable assessment of the appellant’s culpability: Joanisse, at p. 64.

[45] The Supreme Court of Canada has opined that the ineffective assistance analysis should normally begin with the prejudice component. “If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow”: G.D.B., at para. 29.

[46] However, notwithstanding the relatively well-settled parameters guiding ineffective assistance claims, determining whether trial counsel’s assistance resulted in a prejudice is an intensely factual enquiry: R. v. Belcourt, 2020 SKCA 73, 389 C.C.C. (3d) 303, at para. 76.

[47] In order to show that a verdict is unreliable, the ineffective assistance needs to go to one or more of the central issues at trial. Even severe instances of incompetence going to collateral facts will not necessarily undermine the court’s confidence in the result below.

[48] By way of example, R. v. M.B., 2009 ONCA 524, 251 O.A.C. 81, is a case where the ineffective assistance undermined the confidence in the verdict. In that case, the central issue was credibility. The court found that trial counsel’s incompetence bolstered the complainant’s credibility while reducing that of the appellant. Had trial counsel acted competently, the complainant would have been cross-examined on prior inconsistent statements. This could have marred her credibility on which the appellant’s conviction depended. However, in R. v. Aulakh, 2012 BCCA 340, 205 C.C.C. (3d) 315, the court determined that the appellant had not shown a miscarriage of justice. The alleged ineffective assistance was trial counsel’s failure to argue that another individual had the opportunity to sexually assault the complainant. The court dismissed the appeal, concluding that the evidence alluding to an opportunity for someone else did not nullify the other evidence incriminating the appellant.

[49] Consequently, the impact of ineffective assistance on the reliability of the verdict depends on its severity and its proximity to the issue or issues at the root of a conviction. The appellant will not establish a miscarriage of justice unless they can inject doubt into the facts supporting the verdict. They must do so through probative evidence of sufficient persuasive weight to dislodge a verdict’s foundation. Put simply, the ineffective assistance of trial counsel will not disclose a reasonable probability that the result at trial would have been different unless the ineffective assistance threatens a pillar supporting that result.

Was Counsel’s Assistance Ineffective?

[50] This case is somewhat unusual in that the Crown has conceded that the performance branch of the test has been made out. Specifically, the Crown concedes that trial counsel provided ineffective assistance in that he:

(a) did not pursue in depth the nature and extent of the communications between the complainants as a precursor to an examination of any possible collusion;

(b) did not pursue the issue of the appellant’s opportunity to commit the offences alleged to have occurred at bedtime;

(c) did not challenge the complainants’ inconsistencies between their police statements, their preliminary inquiry evidence, and their trial evidence; and

(d) did not challenge the complainants on their memories despite the historical nature of the allegations.

[51] The Crown accepts that, on the facts of this case and given the appellant’s decision not to plead guilty, trial counsel had to meaningfully pursue at least some of these issues, but he did not do so.

[52] Therefore, it is not necessary to closely follow the Supreme Court’s guidance that the prejudice component should come before performance: G.D.B., at para. 29. Both parties agree that, with respect to the above grounds, the performance component is met.

[53] The appellant has advanced a number of additional allegations of ineffective assistance. The Crown maintains that, for all of these, the appellant has not shown that trial counsel’s assistance was ineffective. With one exception, I agree. The one exception is with respect to trial counsel’s preparation for trial and preparation of the appellant for his testimony. I have concluded that the appellant has established ineffective assistance in this area.

[54] Trial counsel’s dockets reveal that he spent very few hours preparing for trial. In the seven months immediately preceding trial, trial counsel recorded decimal four hours to “review file and update” and decimal three hours to “prepare for assignment court”. Trial counsel admitted that he had no substantive discussion with the appellant in the 14 months between the preliminary inquiry and the trial. Although trial counsel indicated that he spent some time preparing the appellant for his testimony, he acknowledged that he did so only during the breaks at court during the trial and before he was to testify. The extent of that preparation is inconsistent with the evidence of the appellant and his niece, who claim that the full extent of trial counsel’s preparation of the appellant prior to his giving evidence was a short meeting held during the lunch break just before the appellant testified.

[55] With respect to the extent of the appellant’s preparation prior to his testimony, I prefer the evidence of the appellant as corroborated by his niece to that of trial counsel. I am also of the view that the appellant’s failures in the witness box are the kind of problems that could well have been avoided with proper preparation. In particular, as I will explain, if trial counsel had adequately prepared for trial and prepared the appellant to give evidence, trial counsel would have understood the significance of the timing of E.E.’s visit to the appellant’s home and would have reviewed the timing and the circumstances surrounding that visit with the appellant prior to his testimony.

Is the conviction the product of a miscarriage of justice?

[56] The Crown’s main submission is that, even though ineffective assistance of counsel has been established, the appellant has not met his onus of showing that there is a reasonable probability that, had there been effective assistance, the verdict would have been different. In the Crown’s view, this is because of the unlikelihood that adequate performance in the areas of ineffective assistance would have had any significant impact on the evidence incriminating the appellant.

[57] The Crown argues that, even if there had been effective assistance of counsel, the similar fact evidence application would have been allowed. Absent collusion, there was simply no basis for denying the application. Once the similar fact application is allowed, the Crown’s case is overwhelming.

[58] In its factum, the Crown listed ten considerations that undermined any suggestion that the similar fact application could be undermined by the possibility of collusion:

a. At its core, this prosecution did not commence because of the actions of the complainants, but because D.P.’s probation officer decided to report the abuse without D.P.’s knowledge;

b. Trial counsel did question the complainants to some extent about their contact with one another. The complainants did not try to hide their contact. Their reports of the extent of their contact is mostly consistent as between their police statements, preliminary inquiry evidence and trial evidence;

c. D.P. testified that he told E.E. about the allegations in 2011, yet no police report was made at that time;

d. It is apparent from F.D’s statement that he and E.E. spoke about the allegations after E.E. gave his statement to police;

e. All of the complainants testified that there was nothing else about their childhood interactions with the Appellant that caused them to dislike him. The Appellant confirmed he was not involved in disciplining the children, and there was some evidence that F.D. and D.P. discussed the abuse of D.P. as children;

f. There was no reason that the complainants would have suddenly colluded some 30 years after the events, when they had either no, or limited, contact with the Appellant in the intervening years. F.D. and D.P. denied an intention to sue for monetary compensation for the abuse, and trial counsel confirmed there was no outstanding civil claim;

g. If the complainants had concocted the allegations, they would likely have described more egregious and frequent abuse than the limited touching they alleged;

h. D.P. described one event, the act of fellatio in the clearing, which was dramatically different than all other allegations, which would have been unlikely had the three colluded together;

i. The complainants found it difficult to talk about the events; and

j. The Appellant corroborated much of the complainants’ evidence, including that he gave them back rubs at bedtime. [Emphasis in original.]

[59] Contrary to the Crown’s submission, I consider the ineffective assistance of counsel in this case and its impact on the trial to be so significant as to require a new trial. From my review of the record in its entirety and, in particular, the affidavit and cross-examination of trial counsel, it is apparent that trial counsel proposed to defend this case on the narrow basis of the appellant’s denial and by pointing out that the complainants lacked credibility because of their criminal records and addictions. There was no real effort to test the complainants’ reliability and credibility, and little attempt at exploring the potential of collusion to undermine or weaken the Crown’s similar fact evidence application or its potential impact. The Crown effectively concedes that, because of this failure to adequately test the evidence tendered at the preliminary inquiry and at trial, trial counsel afforded ineffective assistance to the appellant. As I have explained, I am also of the view that the failure to adequately prepare for trial and prepare the appellant for his testimony are additional areas of ineffective assistance.

[60] In order to assess its impact, the various aspects of the ineffective assistance must be viewed as a whole. The impact of each area of ineffective assistance is compounded when combined with other aspects of the ineffectiveness assistance. The overall result is that, had the appellant received competent legal representation, there is a reasonable probability that the appellant would not have been convicted.

[61] In the following sections, I will first address how the ineffective assistance impacted the allegations made by E.E. I will then outline how the ineffective assistance of counsel undermines the analysis carried out by the trial judge in his reasons for conviction. Finally, I will respond to the Crown’s submission to the effect that the similar fact application would have succeeded in any event and that this made the Crown’s case against the appellant overwhelming.

(a) E.E.’s Allegations

[62] E.E.’s allegation of assault is limited to one incident said to have occurred at the appellant’s home where the appellant and his new spouse had recently moved.

[63] In his statement to police, E.E. described the assault and confirmed that it occurred when he went to the appellant’s home, although he does not remember why he went. He stated that, at the time, the appellant did not work at the group home because “after he got married, he uh, I, think he quit working at the Crossroads … [h]e just – uh – he just got married and him and his wife moved to that house”.

[64] As for when he went to stay at the appellant’s home, he said that it would have been during his first stay at Crossroads. The Crossroads records show that E.E. resided there three times. The first was from February 28, 1983 to June 27, 1984 when he returned to live with his mother. He returned to Crossroads about three weeks later, staying until October 15, 1984. His final stay was from January 11, 1985 to January 30, 1985.

[65] E.E. remembered the assault occurring over his first stay because he told “my uh, Children’s Aid worker, um, about that”. However, the Children’s Aid worker never reported E.E.’s allegations, likely because, when they arrived at the Crossroads, they discovered that one of the residents had tragically murdered another.

[66] According to his police statement, E.E. went to bed past 9:00 p.m. on the day of the assault. He explained that he remembered the time because it was summertime and getting dark outside. He stated that the assault occurred when the appellant came to tuck him in for the night. He further testified that, soon after the alleged assault, he left the Crossroads to try living with his family. It did not work out and E.E. was back at the Crossroads in a matter of weeks. He testified that he told his Children’s Aid worker about the assault while the care worker drove him from Toronto back to the group home for his second stay there, and proffered the murder at the Crossroads that he says occurred that day as an explanation as to why the care worker did not report the abuse.

[67] At the preliminary inquiry, E.E. gave similar evidence. He testified to the assault having occurred when the appellant invited him to his house for the weekend. E.E. explained that a few weeks passed between the assault and the murder.

[68] He gave a slightly different version at trial, stating that “it would have been quite a few months” between the assault and the disclosure to his Children’s Aid worker “[‘c]ause I had left in June. I came back a few weeks later. He drove me up and that’s when I, when I mentioned that to him.” It is undisputed that the murder he refers to occurred in July of 1984.

[69] E.E.’s trial evidence impressed the trial judge in that he was able to remember a good deal of detail from his time at Crossroads. He was, for example, able to recall the names of many of his fellow residents. He also had a clear recollection of the day of the alleged assault. He explained that he had been invited to the appellant’s house for the weekend. He described that the house had grass out front. He remembered that the appellant’s wife made them hamburgers for dinner. E.E. also testified to having told his Children’s Aid worker of the assault as they drove to the home. When they reached the home the murder investigation was underway.

[70] Trial counsel cross-examined E.E. both at the preliminary hearing and at trial. In his cross-examination at trial, trial counsel suggested that E.E. had in fact never divulged the assault to his Children’s Aid worker. He also suggested that E.E. went to the appellant’s home in the summer of 1985, not the spring of 1984. Trial counsel then changed tack and suggested that E.E. was at the appellant’s home in February or March of 1985. Although, at some point, E.E. appears to agree with this suggestion, he clarifies in re-examination that the assault occurred before the July 1984 murder.

[71] The appellant’s evidence as to the events is quite different. The appellant confirmed that E.E. came to stay at his home although the timeframe and context for the visit are totally inconsistent with E.E.’s evidence. According to the appellant, E.E. had already left the group home and was coming back to visit. The appellant and his wife hosted E.E. for a night as a favour to the Waterhouses before driving him to the Crossroads.

[72] The appellant testified that he picked up E.E. at the bus stop in Bancroft in early 1985. The appellant had no clear recollection as to why the Waterhouses asked him to pick up E.E. and thought that it must have been because of a snowstorm. He recalled the road being freshly plowed the next morning when he drove E.E. to Crossroads. The appellant denied that E.E. was there because he had been invited for a weekend visit.

[73] In the Crown’s cross-examination of the appellant, the Crown suggested that the visit described by E.E. happened in 1984, and not in the winter of 1985 as testified to by the appellant. The Crown suggested it made no sense for E.E. to return in February or March of 1985 for a visit when he had left Crossroads at the end of January.

[74] Trial counsel chose not to re-examine the appellant.

[75] However, there was other evidence that would have provided support for the appellant’s timeline. The appellant filed as fresh evidence an affidavit to which he attached his email to trial counsel dated November 9, 2015 in which he explained that E.E.’s allegation could not have occurred as alleged because “I also was not living at the address where the one claim is supposedly to have happened [ sic ]. Did not move in there until November 1st, 1984.” This information concerning the date of the move was later repeated in a second document appended to his affidavit entitled “MY LIFE TIMELINE” that was also sent to trial counsel in advance of trial. Although the appellant was cross-examined on his fresh evidence affidavit, no issue was taken with the accuracy of the information he had conveyed to his trial counsel.

[76] In my view, if trial counsel had adequately prepared for trial, he would have understood the significance of the information the appellant had provided to him in emails. Similarly, if trial counsel had adequately prepared the appellant for his testimony, he would have understood why the appellant placed E.E.’s visit in the winter of 1985. He would have brought out the fact that the appellant’s wedding was in September 1984 and that he moved into his new home, the home where the alleged assault occurred, in November of 1984. This evidence ought to have been elicited during the appellant’s examination-in-chief but, in any event, could have been brought out in re-examination. It would, through verifiable facts, explain why the appellant disagreed with the Crown’s suggestion that the visit was in 1984 and insisted it was much later.

[77] These facts would have undermined E.E.’s credibility and reliability. His testimony as to the timing and his explanation of the series of events cannot be reconciled with the fact that the house where the alleged assault is said to have occurred was not acquired until November of 1984. The information also made E.E.’s description of attending at the appellant’s home, including the presence of grass out front and the fact that he went to bed past 9:00 p.m. because it was summertime and getting dark, improbable.

[78] Significantly, the information regarding the appellant’s marriage and home purchase would have made it impossible for E.E. to have told his Children’s Aid worker about the alleged assault before the July 1984 murder. This has broad implications as E.E.’s disclosure to his Children’s Aid worker and the subsequent murder anchor his timeline throughout his evidence. In his police statement, he relies on the murder to place the assault as having occurred during his first stay at the Crossroads. At the preliminary inquiry, E.E. proffers the murder to explain his Children’s Aid worker’s failure to report the abuse. In his re-examination at trial, E.E. again uses the murder as a reference point to surmise that the assault occurred in early 1984.

[79] If, as alleged, the assault happened in the home acquired by the appellant and his wife, it would have occurred after November 1, 1984. E.E.’s disclosure to his Children’s Aid worker and his entire timeline therefore falls into doubt. It also leaves the court with no explanation as to why nothing was done by Children’s Aid to follow up on E.E.’s report of the assault, assuming that E.E. was not lying or mistaken about having reported the assault to his Children’s Aid worker.

[80] More importantly, this evidence would have given support to the appellant’s testimony that the visit occurred in winter, that he may have been asked to drive E.E. because of a snowstorm, and that the visit occurred after E.E. had left Crossroads.

[81] Trial counsel appears to have understood that the appellant disagreed with E.E.’s timing of the visit. During his cross-examination of E.E., trial counsel suggested that E.E. never divulged these allegations to his Children’s Aid worker because the visit to the appellant’s home occurred in 1985, not in 1984. However, trial counsel did not lead the critical evidence as to the dates of the appellant’s wedding and move to his home that would, if accepted, have shown that E.E.’s description of the home, report to his Children’s Aid worker and the timing were all wrong. This failure allowed E.E.’s testimony to stand challenged only by the appellant’s unsupported statement to the contrary.

[82] Once the trial judge accepted E.E.’s timing, he then used it as a basis to reject the appellant’s evidence. Indeed, the timing of E.E.’s visit is one of two “glaring inconsistencies” that the trial judge used to dismiss the appellant’s denial.

[83] The appellant has presented evidence of sufficient persuasive weight that, if it had been presented at trial, would have bolstered the appellant’s credibility while reducing E.E.’s. The failure to present it constituted ineffective assistance, and is significant because this case rested predominantly on credibility. The trial judge’s acceptance of E.E.’s evidence and his rejection of the appellant’s were central to his conclusion. Therefore, had the appellant received effective assistance of counsel, these pillars would have been significantly undermined, and there is a reasonable probability that the result at trial would have been different.

(b) Impact on the Trial Judge’s Reasons

[84] The impact of the ineffective assistance of counsel went well beyond the failure to lead evidence that would have undermined E.E.’s testimony and reinforced the appellant’s testimony as to the timing and circumstances surrounding E.E.’s visit to the appellant’s home. As I will explain, several aspects of the trial judge’s reasons for conviction are significantly undermined when the fresh evidence tendered in support of ineffective assistance of counsel is taken into account.

(i) Acceptance of the Complainants’ Evidence

[85] The trial judge accepted the evidence of the three complainants. He did so remarking that he had no indication that their testimony was inconsistent with things they may have said about the same events on earlier occasions.

[86] However, as conceded by the Crown on appeal, there were inconsistencies between the complainants’ evidence at trial and what they said at the preliminary inquiry and in their police statements. Trial counsel’s failure to challenge the complainants with these inconsistencies is one of the conceded areas of ineffective assistance of counsel. In fact, trial counsel had not even obtained a transcript of the preliminary inquiry evidence from which he could draw some of the inconsistencies. In addition, because trial counsel failed to carry out sustained cross-examinations of the complainants at the preliminary inquiry, he had not pinned down details of the complainants’ allegations, and the opportunity to create additional inconsistencies was thereby lost.

[87] It is impossible for this court to assess the impact a proper cross-examination of the complainants would have had, or how they would have responded when confronted with their inconsistencies. Nor do we know how that might or might not affect the trial judge’s assessment of their credibility. What is clear, however, is that the trial judge could not have used the absence of inconsistencies as a basis for finding them credible.

[88] In addition to noting the absence of inconsistencies, the trial judge found the complainants credible given their ability to relate peculiar little details. He found this to be “particularly compelling”.

[89] With respect to F.D., a compelling detail was that, following a particular assault, F.D. “remembered running to the bathroom and hiding his underwear by burying it in the trash can.” This compelling detail, however, is one of the inconsistencies on which trial counsel did not cross-examine. In his police statement, F.D. stated that he had thrown the underwear in the kitchen garbage the next morning, not in the washroom following the assault as he alleged at trial.

[90] The particularly compelling features of E.E.’s testimony noted by the trial judge were that, when he went to the appellant’s home, “there was grass on the lawn” and E.E.’s wife made hamburgers for dinner. As I have explained earlier, had the evidence as to when the appellant was married and moved to his home been presented, it would have been clear that, if the alleged assault occurred in the appellant’s home, it could not have occurred in the summer with grass on the lawn. Instead, E.E.’s visit likely occurred in the winter as testified to by the appellant.

[91] The trial judge indicated that he did not put much stock in the demeanour of various witnesses. However, he noted that although D.P. “sometimes got a little argumentative with defence counsel”, he “did not overstate his evidence nor come across as having particularly vitriolic feelings towards [the appellant].” The trial judge may well have taken a different view of D.P.’s demeanor and its significance if trial counsel had cross-examined D.P. using his police statement. In the statement, D.P. related a discussion with E.E. where they spoke of making the appellant disappear.

[92] In addition, trial counsel could have referred to what D.P. said in his police statement regarding E.E.’s vitriolic feelings towards the appellant. D.P. described E.E.’s reaction to the mention of the appellant as “all this venom coming out of his mouth”.

[93] It is apparent, therefore, that several of the bases the trial judge gave for his acceptance of the complainants’ evidence would have been absent but for the ineffective assistance.

(ii) Collusion

[94] In the portion of the trial judge’s reasons dealing with potential collusion, he acknowledges that there were conversations among the three complainants, but explains that he is not persuaded that their discussions “progressed beyond very general comments.” For example, the trial judge refers to the evidence of F.D. that he “simply admitted to E.E. that [the appellant] had ‘touched him’.” The trial judge also referred to D.P.’s testimony to the effect that E.E. “would not tell him the details of what happened to him, nor did D.P. share details about incidents he experienced.” Finally, the trial judge referenced E.E.’s testimony to the effect that he had denied having spoken to F.D. about any incidents involving the appellant.

[95] As a result, the trial judge concluded that the possibility of collusion “affects the weight of the complainants’ evidence very little.”

[96] The trial judge’s view may well have been different if, in the course of cross-examination, trial counsel had put the various statements they made to police to the complainants. In particular, F.D.’s statement suggests that E.E. broached the subject of the appellant and persisted in finding out what he did to F.D. F.D. references his discussion with E.E. wherein F.D. states that “I had told [E.E.] what [the appellant] had done to me while I was in the Highland Crossroads”. Later in the police statement he says that “I basically told [E.E.] what [the appellant] had done. Basically, you know, the way he would start and the way he would usually finish off things when tucking me in for bed”. F.D. states that he did not get into specifics with E.E., “just that [the appellant] had rubbed my, my penis.” As for E.E.’s response, F.D. indicates that “like when I told him about mine, he told me it’s along the same lines, only mine’s a little bit worse.” This suggests that the discussions between E.E. and F.D. progressed well beyond “very general comments”.

[97] While less specific, it also appears there were discussions between E.E. and D.P. In D.P.’s police statement, he states that E.E. “proceeded to tell me what happened with him” and “I told him what happened to me”.

[98] On the issue of collusion, it was also open to trial counsel to cross-examine D.P. and E.E. on possible animus. In his police statement, D.P. says that they had discussed the possibility of dealing with the appellant themselves, and just making him “disappear”. He adds that E.E. “wanted to kill” the appellant. The existence of animus and its potential impact on an allegation of collusion was not explored.

[99] As the Crown concedes, it was unreasonable for trial counsel not to have pursued the nature and extent of the communications between the complainants in depth as a precursor to an examination of possible collusion. It was also unreasonable not to challenge the complainants on inconsistencies among their police statements, their preliminary inquiry evidence and their trial evidence. I view the failure to explore the details of the allegations and of the complainants’ discussions with each other to be a serious failure. It leaves the vulnerabilities in the evidence leading to the appellant’s conviction completely untested.

[100] Where there are multiple complainants, evidence of collusion will make the Crown’s similar fact application less likely to succeed: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 110, and, where it does succeed, it can reduce the weight to be given to the evidence: Handy, at para. 112; R. v. J.W., 2013 ONCA 89, 302 O.A.C. 205, at para. 36, leave to appeal refused, [2013] S.C.C.A. No. 288.

(iii) Late Disclosure

[101] The trial judge discounted the fact that there had been late disclosure of the alleged assaults. He indicated that he put virtually no weight on the absence of disclosure for several decades for two main reasons. The first is the generally accepted view that the reaction to having been sexually assaulted varies and disclosure can come about in a myriad of different ways. The second of the reasons, however, was case specific. He accepted E.E.’s evidence that he had told his Children’s Aid worker of the assault and that it was only due to the July 1984 murder of a resident of Crossroads that no follow up to that disclosure occurred.

[102] As I have explained, had trial counsel properly presented the evidence of the appellant’s marriage and move to his new home in November 1984, it is unlikely that E.E.’s explanation would have been accepted by the trial judge.

(iv) The Appellant’s Evidence

[103] The appellant elected to testify in his own defence. The trial judge rejected his evidence by focusing on two “glaring inconsistencies” that caused him significant concern. First, he found that the appellant had minimized his involvement with the children at the home. The appellant argues that trial counsel ought to have called the Waterhouses to testify in support of his position that he had little opportunity to carry out the alleged assaults and, in particular, the numerous alleged assaults on F.D. In addition, the appellant submits that trial counsel ought to have discovered the Pothars prior to trial as they may also have been able to provide additional support for his allegation that he had limited contact with the residents and, therefore, limited opportunity to commit these offences. The appellant further argues that trial counsel could have led evidence of a partial alibi in that, for part of the relevant period, he had been working at the Graphite Bible Camp. This would provide support for the appellant’s contention that he had little involvement with the complainants during the period the assaults are said to have happened.

[104] I agree with the Crown’s response to this issue. The evidence regarding the appellant’s employment at the Graphite Camp is unclear and it is not apparent that it would assist in establishing that the appellant had limited opportunity to commit the offences. The fresh evidence tendered by the appellant does not provide a solid basis to suggest otherwise, nor does it show that the Waterhouses or Pothars would support the appellant’s testimony. Although I accept that adequate preparation of the appellant prior to his giving his evidence would likely have assisted him in testifying in a clearer and more balanced manner, it is not at all clear that it would have alleviated the trial judge’s concern.

[105] The second aspect of the appellant’s testimony that caused the trial judge concern was his description of how E.E. came to spend the night at his home. The appellant testified that E.E.’s visit occurred when E.E. returned in the winter and there may have been a snowstorm. The trial judge found this evidence “simply incapable of belief”. As I have explained earlier, had trial counsel properly prepared the appellant for his testimony, and had he elicited the evidence to the effect that E.E.’s stay at the appellant’s home could not have occurred in the summer as alleged by E.E., this basis for rejecting the appellant’s evidence would likely not have been available.

(c) The Impact of the Crown’s Similar Fact Application

[106] As noted earlier, the Crown argues that, even if trial counsel had provided effective assistance, there was little evidence of collusion and the Crown’s similar fact application would inevitably have been allowed, obviating any chance of an acquittal. I disagree.

[107] In allowing the Crown’s similar fact application, the trial judge found that the “circumstance[s] of the alleged offences are so significantly similar that, absent collusion among the complainants, the improbability of coincidence is very high and it makes the evidence highly probative in terms of whether [the appellant] had the specific propensity described by the Crown and whether he acted in accordance with that specific propensity on the occasions in issue.”

[108] The fresh evidence undermines the trial judge’s findings in several ways. As I noted earlier, the Crown concedes that trial counsel’s assistance was ineffective in that he “did not pursue in depth the nature and extent of the communication between the complainants as a precursor to an examination of any possible collusion.” The fresh evidence has established that there were opportunities for collusion that were not raised in cross-examination. Therefore, but for the ineffective assistance of trial counsel, the extent of communications among the complainants and the apparent inconsistencies in their trial evidence as compared to their preliminary inquiry evidence and police statements would have been explored. Evidence of collusion undermines both the foundation and the force of similar fact evidence: Handy. Consequently, effective assistance would, in all likelihood, have highlighted the concern for possible collusion, thereby weakening the Crown’s similar fact application.

[109] I acknowledge that several of the ten considerations listed by the Crown for rejecting the suggestion of collusion retain considerable force. However, many of these would likely have had less or little force had the appellant been properly represented. For example, because the complainants’ evidence at trial, at the preliminary inquiry, and in their police statements was not challenged, it is impossible to know how the complainants would have reacted to trial counsel raising the inconsistencies. Nor do we know what that cross-examination may have drawn out in terms of evidence that would undermine some of the points listed by the Crown.

[110] Many of the Crown’s arguments against collusion depend on the trial judge’s acceptance of the complainants’ testimony and his rejection of the appellant’s evidence. The fresh evidence undermines several of the bases upon which the trial judge assessed credibility. It is not the function of this court to retry the case, reassess the appellant’s and complainants’ credibility and reweigh the various elements of proof. However, where fresh evidence casts doubt on the facts supporting those findings, this court may properly question the reliability of the resulting conclusion.

[111] In addition, trial counsel did not use the preliminary inquiry as an opportunity to probe the details of the alleged assaults and the circumstances surrounding those assaults. There was some evidence of differences in the complainants’ descriptions of the assaults that could have been but was not probed. Consequently, the appellant was left with little basis to argue that differences existed between the allegations such that the similar fact application should be rejected. The differences were admittedly of limited significance, but little would have been lost and potentially useful evidence may have been elicited if, at the preliminary inquiry stage, there had been further probing as to how the complainants said the assaults were carried out and adequate cross-examination of the complainants on the differences that were already apparent.

[112] The fresh evidence also indicates that there were areas of potential cross-examination available so as to show that, to some extent, the appellant had limited opportunity to commit the alleged assaults. For example, there was some evidence that F.D. and D.P. shared a room for a period, which could make it less likely that F.D. was assaulted over 50 times given the appellant’s limited period of employment at the home. Trial counsel’s failure to explore the appellant’s limited opportunity amounts to another foregone chance to differentiate between the various allegations. This evidence could also have cast doubt on the number of assaults F.D. alleges occurred, which the trial judge relied on to enhance the probative value of the similar fact evidence.

[113] I acknowledge that, as argued by the Crown, the appellant has not established that further probing at the preliminary inquiry would necessarily have provided additional evidence of collusion or brought to light significant differences in the way the assaults are said to have been carried out and the circumstances in which they are said to have occurred. I also accept that the potential benefits to the appellant’s defence of further probing of the complainants as to these matters cannot be assessed. I reject, however, the suggestion that trial counsel’s failure to provide effective assistance by not probing further on the issues of collusion, opportunity and details of the assaults should be given little or no weight. This is not a case where the appellant has failed to offer any evidence from which this court can infer that, because of trial counsel’s ineffective assistance, he suffered prejudice: R. v. Davies, 2008 ONCA 209, 234 O.A.C. 291, at paras. 54-55.

[114] As noted above, the record establishes that there were opportunities for collusion that were not raised in cross-examination. While less significant, as set out earlier, there was also evidence as to differences between the allegations and evidence suggesting that the appellant had limited opportunity to assault F.D. that were not explored in cross-examination. It is reasonable to infer that, had these matters been explored in cross-examination as they should have been, the evidence elicited would have impacted the Crown’s similar fact application.

[115] Therefore, I am not persuaded by the Crown’s submission that its similar fact application would inevitably have been allowed and that, once allowed, it makes the Crown’s case overwhelming. Because of trial counsel’s ineffective assistance, the appellant was left with little basis to challenge the Crown’s similar fact application. The ineffective assistance demonstrated in this case affects the trial judge’s findings on collusion, similarity of the alleged assaults, and opportunity of the appellant to commit the offences, as well as the trial judge’s credibility assessments. All of this has potential impact on the Crown’s similar fact application. In addition to these concerns, it is clear that, if the serious problems with E.E.’s evidence as to timing were to result in this evidence being rejected, a critical element of the similar fact application would be lost.

CONCLUSION

[116] To succeed in an appeal based on ineffective assistance of counsel, an appellant must show that trial counsel’s incompetence led to a miscarriage of justice. Under the unreliable verdict branch of the test for a miscarriage of justice, this requires showing that the appellant suffered a prejudice in that there is a reasonable possibility that the result at trial would have been different but for the ineffective assistance offered by counsel. As I have explained, a verdict can withstand collateral attacks. Generally, the ineffective assistance must impact one or more of the pillars supporting the conviction with sufficient force so as to show the court that the verdict rests on an uneasy foundation.

[117] I have concluded that, with respect to the convictions relating to the assault on E.E., the appellant has established that the ineffective assistance of counsel he received goes directly to pillars supporting those convictions and that, but for that ineffective assistance, there is a reasonable possibility that the result at trial would have been different. E.E.’s credibility is critical to the convictions on those counts, and the timeline surrounding E.E.’s attendance at the appellant’s house and reporting to his Children’s Aid worker are central to E.E.’s recounting of events. They are brought into serious doubt once the fresh evidence is admitted. E.E.’s credibility not only anchors the appellant’s conviction on those counts, it undermines the appellant’s credibility and, therefore, has an impact on all counts.

[118] The appellant has also shown that the trial judge’s reasons for convicting on all counts are undermined in several respects once the fresh evidence relating to the ineffective assistance of counsel is received and applied. The trial judge’s bases for rejecting the appellant’s evidence are significantly weakened and the reasons for accepting the evidence of each of the complainants is similarly impaired. There is, in my view, a reasonable possibility that the result at trial on the counts relating to F.D. and D.P. would have been different but for the ineffective assistance of counsel.

[119] In any event, given that all the convictions rest, at least in part, on the trial judge having accepted the use of count to count similar fact evidence, I do not see how the convictions with respect to counts relating to D.P. and F.D. can stand if there is a reasonable possibility that the counts relating to E.E. may not have resulted in convictions.

[120] As a result, I would grant the application to file fresh evidence as it meets the criteria set out in R. v. Palmer, [1980] 1 S.C.R. 759, allow the appeal, quash the convictions, and order a new trial on all counts.

[121] Given that I would allow the conviction appeal, I need not address the appeal as to sentence.

Released: January 25, 2022 “PR” “Paul Rouleau J.A.” “I agree Alexandra Hoy J.A.” “I agree Thorburn J.A.”

[1] The record is inconsistent between Pothars and Pothaars. I have chosen to mirror the trial judge and use Pothars throughout.

[2] “Case law uses the terms probability and possibility interchangeably when describing the standard to be applied when considering whether a verdict would have been different”: R. v. Belcourt, 2020 SKCA 73, 389 C.C.C. (3d) 303, at para. 53.