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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it. (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it. (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. (3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2). (3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and (4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person. (5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness. 486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate. (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.

Court of Appeal for Ontario

Date: 20240611 Docket: C66319

van Rensburg, Harvison Young and Sossin JJ.A.

Between

His Majesty the King Respondent

and

R.S. Appellant

Counsel: R.S., acting in person Janani Shanmuganathan, appearing as duty counsel Frank Au, for the respondent

Heard: June 3, 2024

On appeal from the convictions entered on August 3, 2018 and the sentence imposed on December 6, 2018 by Justice Gary W. Tranmer of the Superior Court of Justice.

Reasons for Decision

Overview

[1] The appellant was convicted of assault, forcible confinement, utter threats, invitation to sexual touching, sexual interference, and possessing child pornography. The appellant was sentenced to 10 years in prison, minus pre-trial custody credit.

[2] The appellant appeals.

[3] For the reasons that follow, we dismiss the appeal.

Facts

[4] The appellant was charged with sexual offences in relation to his daughter T.H., as well as two of her friends (S.E. and P.S.). The child complainants all were 11 and 12 years of age at the time.

[5] The case turned on the court’s assessment of the credibility and reliability of the principal witnesses: the appellant and the three child complainants. The evidence of the three complainants detailed the events underlying the allegations.

[6] The trial judge rejected the appellant’s evidence, saying that he did not believe his “bald denials” and was not left in a reasonable doubt, considering the “overwhelmingly strong Crown case”.

[7] The appellant’s notice of appeal alleges that the conviction was not supported by the evidence, that the police suppressed evidence, that the police failed to properly test certain evidence and that there was judicial bias. The appellant’s notice of appeal also refers to an appeal against sentence on the basis that the sentence imposed was too harsh for a first-time offender and the sentence failed to appropriately consider rehabilitation. At the hearing, however, these grounds were not pursued. Rather, the two issues raised were: 1) ineffective assistance of counsel; and 2) the failure of the trial judge to grapple with inconsistent evidence of one of the complainants.

Analysis

(1) The appellant has not established ineffective assistance of counsel

[8] The appellant argues that counsel failed to fairly represent him at trial, including allegations that trial counsel:

a) failed to procure documents to bolster the appellant’s testimony or cast doubt on the complainants’ testimony, including records of his vasectomy in 2010 which undermined S.E.’s claim that she became pregnant as a result of an assault by the appellant;

b) Children’s Aid Society (CAS) records which showed a false allegation had been made by T.H.’s mother about the appellant using drugs; and

c) Transcripts of police interviews which the appellant claimed were involuntary.

[9] The affidavit of trial counsel responds to each of these allegations. Trial counsel clarified that he did cross-examine S.E. on her claim of pregnancy and highlighted her lack of memory of the specifics and that her evidence on this point lacked credibility. He stated that the appellant did not provide medical records of his vasectomy but that when the fact of his vasectomy was raised at trial, the Crown did not challenge or seek to cross-examine the appellant on this evidence. Trial counsel also clarified that CAS records were applied for and produced, but based on his recollection, the records were not helpful to the defence, nor did he believe additional CAS production would assist the defence. Further, trial counsel stated that, given the police interview was not being tendered by the Crown as evidence, he did not order transcripts to be produced on behalf of the defence. Finally, he questioned whether the appellant ever told him his statement was involuntary, but in any event, he did not believe the argument that the appellant’s participation was involuntary had an air of reality.

[10] With respect to ineffective assistance of counsel, the focus is whether the evidence shows that the assistance of counsel at trial was so ineffective that the 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; and R. v. MacLeod, 2020 ONCA 596, at para. 15.

[11] The test to prove ineffective assistance of counsel has three components which the moving party must establish:

1. the facts on which the claim is grounded (the factual component);

2. the incompetence of the representation provided by trial counsel (the performance component); and

3. a miscarriage of justice as a result of the incompetent representation by trial counsel (the prejudice component): R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91.

[12] The Crown argues that the appellant’s evidence does not meet the threshold for ineffective assistance of counsel.

[13] Turning to the factual component, Paciocco J.A. described this threshold in R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 51:

The factual component requires the appellant to “establish the facts material to the claim of ineffective assistance on the balance of probabilities”: R. v. K.K.M., 2020 ONCA 736, at para. 55. In determining whether an appellant has done so, allegations of incompetent representation must be assessed in light of the “strong presumption of competence in favour of counsel”: R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 140. Courts should also be mindful of the incentive there may be for a convicted appellant to make false allegations, particularly in light of the ease with which false allegations can be made, and the potential unreliability that can arise when events are recalled “through the bars of a jail cell”: Archer, at para. 142. As Doherty J.A. noted in Archer, at para. 141, “Common sense dictates a cautious approach to allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms.”

[14] We see no evidence that could meet the factual threshold for ineffective assistance of counsel. Trial counsel’s responses to the allegations of ineffective assistance of counsel reveal that he did not fail to take the steps in carrying out the defence of the appellant, as alleged by the appellant.

[15] If it were necessary to consider the performance and prejudice components of the ineffective assistance of counsel test, set out above, we would conclude that none of the alleged failures of trial counsel could be construed as incompetent measured against a standard of reasonableness, nor would any such failures result in an unfair trial leading to a miscarriage of justice: Fiorilli, at paras. 52 and 54.

[16] Therefore, we reject the appellant’s ground of appeal for ineffective assistance of counsel.

(2) The trial judge did not err in finding the inconsistencies in the complainants’ evidence were “peripheral”

[17] The issue of the trial judge’s treatment of inconsistencies in the complainants’ evidence was addressed by duty counsel, assisting the appellant.

[18] Duty counsel submitted that the trial judge failed to grapple with the material inconsistencies in the evidence of S.E.

[19] Duty counsel relies on R. v. Markell (2001), 146 O.A.C. 397 (C.A.), where this court allowed an appeal from a conviction based on the testimony of a child, concluding that the trial judge’s finding of credibility in relation to the child complaint’s evidence, was unreasonable. The court in Markell explained, at para. 2, that:

There were many profound internal inconsistencies in the evidence of the child concerning this alleged single isolated incident. The inconsistencies in the evidence of the eight-year-old child were not peripheral and collateral, as characterized by the trial judge. They went to the core of the alleged offences and included such matters as the room where it occurred, how it occurred, who was physically present when the offence allegedly occurred, and when it was disclosed… We think that the trial judge was wrong to simply forgive the many inconsistencies because of the age of the complainant and so, in effect, lower the standard of proof.

[20] Duty counsel submits that most significant among the inconsistencies in S.E.’s evidence was her claim that T.H. was present during several of the sexual assaults which occurred in the appellant’s bedroom, and that on at least one occasion, S.E. asked T.H. to leave the room. T.H. gave evidence that she was not present and did not see the appellant assault S.E. in the appellant’s bedroom.

[21] The trial judge expressly referred to the inconsistencies in S.E.’s evidence. For example, in relation to the inconsistency highlighted by duty counsel with respect to T.H.’s presence during the assaults on S.E., the trial judge acknowledged “[T.H.] said she did not see anything happen between her father and [S.E.]. [S.E.] said that she did.”

[22] After reviewing this and other inconsistencies, the trial judge stated:

[S.E.’s] difficulty with life-style, drugs and alcohol explains her confusion about dates and chronology, and about minor peripheral matters, including the inconsistencies that I have mentioned as between [T.H.] and [P.S.]. She is clear, and firm, and detailed in what she says [the appellant] did to her.

I have considered the inconsistencies in the girls’ evidence, as I have referred to, and I find them to be minor, attributable to their youth, and, in [S.E.’s] case, her immaturity, the passage of time, and her consumption of alcohol at the relevant time.

The inconsistencies do not go to the core of what [the appellant] did to them. The inconsistencies are peripheral in nature. These children each described, in detail, what [the appellant] did to them. On that, they were not contradicted by each other, or other evidence, or shaken in cross-examination.

[23] The trial judge also expressly distinguished this finding from the circumstances of Markell, where this court referred to the inconsistencies as “profound.” The trial judge concluded, “[t]he evidence of the complainants in this case does not suffer from the types of difficulties of the complainants in Markell….”

[24] We see no error in the trial judge’s treatment of the inconsistencies in the complainants’ evidence, or in his determination that those inconsistencies were “peripheral” in the circumstances of this case. Unlike Markell, which related to a single, isolated incident involving a single child, in this case, the trial judge considered and relied on evidence of three complainants in relation to multiple assaults over a significant period of time. The determination that the inconsistencies in the evidence of S.E. were peripheral reflects a finding of mixed fact and law, which is entitled to deference.

[25] For these reasons, we also reject the appellant’s ground of appeal with respect to the trial judge’s treatment of the complainant SE’s evidence.

Disposition

[26] The appeal against conviction is dismissed. While the notice of appeal referred to other grounds of appeal of the conviction and an appeal against sentence, those were not pursued before us.

[27] We are grateful to the appellant, duty counsel, and the respondent’s counsel for their helpful submissions.

“K. van Rensburg J.A.”

“Harvison Young J.A.”

“L. Sossin J.A.”