ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 135/11
DATE: 2014-12-16

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

G.V.E
Appellant

Counsel:
Ms. M. MacKenzie, for the Respondent Crown
Mr. T. Breen, for the Appellant

Heard: December 2, 2014

SUMMARY CONVICTION APPEAL

REASONS FOR JUDGMENT

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.

MURRAY J.

[1] In reasons for judgment released on May 30th, 2011 by the Honourable Justice R. LeDressay of the Ontario Court of Justice, the appellant G.V.E. was found guilty of sexual interference contrary to section 151 of the Criminal Code and on August 23, 2012 was sentenced to five months imprisonment and three years’ probation.

[2] G.V.E. appeals both conviction and sentence.

Overview

[3] The charge involved an allegation that the appellant touched for a sexual purpose his seven-year-old niece K. H. under her clothing while she was sleeping at his home during a family get-together in November, 2008. The complainant reported the incident to her parents and the police were called. The complainant gave a statement to the police.

[4] At trial, in addition to the evidence of the complainant and her mother K. H., the prosecution was permitted to introduce similar fact evidence concerning sexual advances made by the appellant towards his sister-in-law D. M. during her visit to his home in July 2004.

[5] The appellant testified. He denied touching K.H. for a sexual purpose. His evidence was that before going to bed, he went into the children's room to check on his son and change his clothing. While in the bedroom the complainant said that she was wet. The appellant testified that he touched the complainant over her clothing and determined that she was dry and then went to bed. While disputing the similar fact evidence of D.M., he acknowledged he had behaved inappropriately during a visit by D.M. in 2004.

[6] In cross-examination, the appellant was confronted with a letter he had written to the complainant and her parents wherein he purported to explain his conduct. The letter had been prepared at the suggestion of defence counsel, Mr. Verbeek, and forwarded to Crown counsel, Ms. Ward, shortly before trial.

[7] S.V.E., the spouse of the appellant, was called by the defence as a witness. In her cross-examination, she was questioned at length regarding statements made by the appellant to her regarding the facts related to the criminal charges.

[8] In his reasons for judgment, Justice LeDressay found the complainant to be a credible witness and rejected the evidence of the appellant as not credible. In rejecting the evidence of the appellant, the judge relied on inconsistent statements made by the appellant to his wife with respect to the allegations and on the letter to the complainant which had been prepared at the suggestion of defence counsel Mr. Verbeek.

[9] On this appeal appellant raises three issues with respect to his appeal from conviction:

1. That the cross-examination by the Crown of S.V.E. as to communications received from the appellant concerning the alleged sexual assault was improper, that such spousal communications are privileged and presumptively inadmissible, that there was no waiver of privilege, and that the erroneous admission of the appellant's communications with SV.E. resulted in substantial prejudice as they were central to the trial judge's rejection of the appellant's evidence.

2. That the conduct of defence counsel in providing the prosecution with a letter written by the appellant constituted ineffective assistance;

3. That the trial judge erred in holding that the evidence of D.M. was admissible as similar fact evidence, that the evidence had no probative value and that the evidence resulted in prejudice to the appellant.

[10] With respect to his appeal from sentence, the appellant submits that the trial judge erred in principle by placing undue emphasis upon principles of deterrence and denunciation, failed to give sufficient weight to the impulsive nature of the appellant's misconduct and his status as a first offender.

The Trial

The Evidence of the Prosecution

[11] J.H. and K.H. together with their three children (the complainant K.H., and her siblings L.H. and R.H.) visited the appellant and his wife S.V.E and their children Z.V.E. and J.V.E. at the appellant's home in Oakville for a weekend visit and to celebrate J.V.E.'s birthday. The visit commenced on Saturday, November 15, 2008. One of the guests was the appellant's brother, K.V.E. One of the three H. children is the complainant, K.H., born on […], 2001, who was seven years old at the time of this weekend visit.

[12] The children were put to bed around 8:00 p.m. on Saturday evening. The three H. children together with Z.V.E., the appellant's son, were all sleeping in the same bedroom. R.H. was in a bed and the other three children – including the complainant – slept on the floor in sleeping bags and blankets.

[13] The adults partied which included enjoying a hot tub and the consumption of alcohol.

[14] At some point in the evening R.H. wet his bed and needed changing and, as a result, was attended to by his mother K.H. who put him back to bed in the guest room where she and her spouse J.H. were sleeping.

[15] On Sunday night, J.H. and K.H and their three children drove home to Owen Sound. On the following Monday, around dinner, K.H. disclosed that something had happened with the appellant G.V.E. As a result, the complainant's father, J.H., contacted the police.

[16] The complainant K.H. provided the police with a statement on November 20, 2008. The statement was played in court and the complainant adopted its content as truthful. In her statement, the complainant said that she was at the appellant's home for a birthday party for her cousin J.V.E. The complainant said she was sleeping in her cousin Z.V.E.’s bedroom together with Z.V.E. and her sister L.H. and they were all sleeping in sleeping bags on the floor. The complainant stated that she went to bed wearing a T-shirt and pants but she was too warm and was sweating and removed them and was sleeping in her underwear. The complainant told the police that when she was awake the appellant came into the bedroom in which she was sleeping. The appellant stated that she was a good helper. He asked if she had “peed” and put his hand under her underwear, touching her crotch and bum. K.H. told the appellant that she did not wet the bed. The appellant kept talking, saying that she was a good helper with J.V.E. The appellant then kissed her on the cheek and kissed J.V.E. He continued to talk and kissed each of them again before leaving the room.

[17] The Crown was permitted to call similar fact evidence. This evidence was provided by D.M., age 32 at the date of trial who is the older sister of S.V.E., the spouse of the appellant. D.M. testified that, in July 2004, she was experiencing trouble in her marriage and traveled to Ontario to stay with the appellant and her sister for a couple of weeks. One evening when she was with the appellant and S.V.E. in their home, all three consumed alcohol resulting in two of them, D.M. and the appellant becoming intoxicated. Having decided to get into the hot tub, both D.M. and the appellant stripped down to their underwear. After getting out of the hot tub, D.M. got a towel, went downstairs to the basement where she was planning to sleep. The appellant came downstairs a short time later with drinks. They spoke about her marital situation. According to D.M., the appellant began asking her sexually explicit questions. She testified he tried to kiss her twice but that she pushed him away reminding him that she was his sister-in-law could not kiss him and that he should go to bed. D.M. testified that at some point, while she was lying on the couch, the appellant touched her vagina over her underwear. D.M. moved his hand away, asked him not to touch her and told him to go upstairs to his wife. According to D.M., the appellant agreed to go upstairs but asked if she would do him a favour first. D.M. agreed and the appellant asked her to remain lying on the couch at which point the appellant adjusted her underwear, exposing her more, and began to masturbate. D.M. testified that she began to cry and beg the appellant to leave her alone. The appellant stopped and went upstairs. At some point the next evening, D.M. told S.V.E. that the appellant had “hit on her” but that nothing really happened and told S.V.E. that she needed to speak to the appellant.

The Evidence of the Defence

[18] The appellant testified. He confirmed that the adults consumed a lot of alcohol. Fixing up a place for his brother K.V.E. to sleep on the couch downstairs, the appellant went upstairs to go to bed. As was his habit, the appellant checked on Z.V.E. who was on the floor in a sleeping bag. Z.V.E. was wet and the appellant changed his clothing speaking to him as he did so. The appellant's evidence was that after changing Z.V.E., he heard the complainant say: “I'm wet”. The complainant was in the sleeping bag next to Z.V.E. lying on her side facing toward the appellant. The appellant asked the complainant if she had peed the bed. She appeared to be groggy or half asleep and did not respond. The appellant touched the sleeping bag in front and found that it was slightly damp. The appellant then felt the sleeping bag behind and it too was slightly damp. The appellant acknowledged that, when he reached behind the complainant he probably did brush against her bottom. The appellant testified that he then placed the back of his hand on the front of K.H.'s underwear, near the top of the underwear in the crotch area, which was dry. The appellant then told the complainant that she was fine. The appellant then went into the next bedroom where he untangled his son J.V.E. from his blankets and then went to bed. The appellant denied any sexual interest in touching the complainant. In cross-examination, the appellant agreed that he probably should have awakened the complainant to get a response from her but explained that he wanted to get to bed and wanted to make sure that she was not lying in a wet bed.

[19] With respect to the similar fact evidence, the appellant testified that he first met D.M. at his wedding and saw her next at his brother's wedding in 2003. In June 2004, she came to his residence where she spent several days before traveling to England. During the time of her visit, after spending a day in Canada's Wonderland, they returned home about 6:00 p.m. The weather was hot. After having a beer, D.M. and the appellant decided to get into the hot tub both stripping down to their underwear. While in the hot tub, they discussed D.M.'s marital problems. D.M. asked the appellant if he had ever cheated on S.V.E. and told him that she was cheating on her husband. When a storm developed, they got out of the hot tub and joined S.V.E. on the front porch to watch the storm. D.M. danced in the rain on the front lawn and ran up and down the street in her underwear. When they went inside, S.V.E. invited D.M. to get dressed but she declined and decided instead to wrap a towel around her waist while seated on the couch. During the course of the evening both D.M. and the appellant drank. After S.V.E. went to bed, the appellant and D.M. continued to discuss her marriage. According to the appellant, D.M. was crying and he rubbed her shoulders and hugged her once or twice to comfort her. In the course of the conversation, D.M. complained about her sex life and described in some detail how she masturbated. The appellant denied that he had attempted to kiss D.M., that he touched her vagina or masturbated in her presence. The appellant acknowledged that he asked D.M. if she had engaged in a “threesome” and if she shaved her pubic area. He testified that when he realized the conversation was not helpful to either one of them, he went up to bed.

[20] S.V.E. testified. She testified the children went to bed around 9:00 p.m. on the evening in question and that the adults played a dice game and later got in the hot tub. She testified that she left the hot tub around 1:00 a.m. and before going to bed she checked on the children, who were all sleeping. She testified that she was awakened about 1:45 a.m. by the appellant and his brother K.V.E. laughing in the hallway. She testified that she got up and spoke with K.H., the complainant's mother before returning to bed, that the appellant and his brother K.V.E. went downstairs and that a short time later the appellant came to bed. She testified that the appellant would usually check on the children, often changing Z.V.E.'s diaper before coming to bed. Her evidence was the birthday party for J.V.E. was held the next day on Sunday and that the H. family left for home in the afternoon and there was nothing unusual in the complainant's behaviour during the day.

[21] Crown counsel commenced her cross-examination by asking what the appellant had told her about what had happened while in the bedroom with K.H. Crown counsel returned to the subject several times. Neither the Crown nor the trial judge advised S.V.E. of spousal privilege or inquired if she was prepared to waive such privilege. In responding to questions, S.V.E. testified that the appellant said to her that, while he was changing Z.V.E., the complainant mumbled something about being wet. The appellant then checked K.H. and the sleeping bag. The appellant said that he checked the complainant by touching her underwear on her bottom. The appellant never told S.V.E. that he had touched K.H in the area of her crotch.

The Evidence Related to Ineffective Assistance of Counsel

[22] Prior to the setting of the trial date, defence counsel, Mr. Paul Verbeek, engaged in resolution discussions with Assistant Crown Attorney Jim Coppolino. Mr. Coppolino was agreeable to a plea to assault subject to the approval of the complainant's family. The family did not agree to the resolution and the matter was set down for trial. On January 15, 2010, on the advice of trial counsel, the appellant prepared a letter of apology to be forwarded to the complainant and to her parents. It was believed that the letter might have caused the complainant's family to reconsider their position and agree to a plea to simple assault. Trial counsel was aware the terms of the appellant's release prohibited any communication with the complainant and her parents and as a result, trial counsel assured the appellant that the letter could be provided by the Crown to the complainant without violating the terms of his release.

[23] On February 16, 2010, trial counsel faxed a copy of the appellant's letter to the office of Ms. Ward, the Crown responsible for prosecution. Mr. Verbeek had no recollection of any conversation with the Crown but assumed he must have confirmed she was agreeable to the proposed resolution should the complainant's family approve. In his covering letter, Mr. Verbeek stated that: “this letter is provided to you solely for the purpose of providing same to the parents of the victim in the hope that it will go to an explanation of the events from my client's point of view.” Mr. Verbeek testified that such language was intended to preclude the use of the letter as evidence at trial, as he was concerned that the letter might be used to prejudice the appellant's defence. Trial counsel had no recollection of speaking to Crown counsel between February 16, and March 3, 2010 regarding the potential resolution of the charges. In a letter dated March 5, 2010, Crown counsel wrote to Mr. Verbeek confirming a discussion on March 3, 2010 at which time she advised that she would only forward the letter to the complainant's family if Mr. Verbeek agreed that there would be no limitation on the use of the letter as evidence. Trial counsel had no recollection of this conversation with the Crown on March 3, 2010 but assumed that he must have asked her why she was not prepared to forward the letter to the complainant's family in order to further a resolution of the charges. On March 8, 2010, Mr. Verbeek replied and withdrew any limitation on the use of the letter. Trial counsel testified that he believed he had received instructions from the appellant but had no recollection of any discussion with him. In cross-examination, Mr. Verbeek testified that he was apprehensive about waving any limitation as to the use of the letter and would have communicated his concern to the appellant. Mr. Verbeek testified that notwithstanding the advice he thinks he must have given, the appellant instructed him to waive any limitation on the use of the letter. Mr. Verbeek was of the view that unless constrained by professional ethics, he was obliged to take the appellant's instructions. Mr. Verbeek did not follow-up with Crown counsel between March 8, and March 24, 2010 and further testified that he was not surprised when he received the Crown's similar fact application which included the appellant's letter. On the morning of the trial, counsel said to Ms. Ward, the Crown: “so I guess were not going to be doing the plea to the assault?” To which Ms. Ward replied: “no”.

[24] In her affidavit sworn on October 28, 2014, Ms. Ward states that she did not engage in resolution discussions with trial counsel and would not have agreed to the proposed resolution.

Analysis

The Admission of Evidence by S.V.E. and Spousal Privilege

[25] I will start by dealing with the first ground of appeal: that the cross-examination by the Crown of S.V.E., the appellant’s spouse, as to oral communications received from the appellant concerning the alleged sexual assault was improper; that such communications are privileged and presumptively inadmissible; that there was no waiver of privilege; and, that the erroneous admission of the appellant's communications with S.V.E. resulted in substantial prejudice as they were central to the trial judge's rejection of the appellant's evidence.

[26] The position of the Crown is that there was no duty to advise S.V.E. of her right not to testify about communications made by her spouse to her, that there is nothing in the evidence to support a conclusion that she would have relied on the privilege if she had known about it even if it was an error to permit cross-examination on communications between her and the appellant, and finally that the cross-examination of the spouse on privileged communications made no difference because the appellant testified about not telling his wife that he touched the complainant in the crotch area.

[27] A review of the transcript indicates that the Crown attorney, Ms. M. Ward commenced her cross-examination of S.V.E. by asking what her spouse had told her happened when he was in the bedroom with the complainant and the other children. There was never any advice to her that this information was privileged. There was never any objection by defence counsel to the Crown attorney’s cross-examination with respect to spousal communications. There was never any intervention by the trial judge. During her cross-examination, in answers to questions by the Crown in cross-examination, S.V.E. testified that the appellant had told her that he checked the complainant to see if she was wet, that the appellant told her he felt the complainant's underwear on her bum area and that she was fine, that he thanked the complainant for being a good girl in helping out with the little kids that day and that he then left the bedroom. In further cross-examination, S.V.E was asked whether she was aware of the letter written by the appellant to the complainant's family. She responded in the negative. She was asked by Crown counsel in cross-examination whether the appellant ever told her that he put his hand on K.H.'s crotch area. She answered in the negative. When asked in cross-examination after she became aware of the accusations if she had discussed with the appellant whether he had ever touched K.H. underneath her clothing, she testified that the appellant had told her that he had not done so.

[28] Spousal privilege, which is recognized in s. 4(3) of the Canada Evidence Act, R.S., c.E-10, has been described as a common law or class privilege embedded in the common law and one for which there is a prima facie presumption of inadmissibility. See: R v. McClure, 2001 SCC 14, 151 CCC (3rd) 321 at paras 27-28. In R. v. C. (D.R.), 2007 SCC 28, 220 CCC (3rd) 289, Justice Charron explained at paragraph 41 of that decision that: “the privilege is testimonial in nature, giving a right to withhold evidence that the communications themselves are not privileged. The privilege belongs to the spouse receiving a communication and can be waived by him or her.” Justice Charron, relying on R. V. Hawkins 1996 154 (SCC), [1996] 3 SCR 1043 and R. v. Salituro, 1991 17 (SCC), [1991] 3 SCR 654, explained (at para. 42) the policy reasons which underpin the rule. Firstly, it promotes conjugal confidences and protects marital harmony and secondly that it prevents “the indignity of conscripting an accused's spouse to participate in the accused's prosecution”.

[29] As has been noted, the privilege recognized by s. 4(3) of the Canada Evidence Act, is a privilege which is testimonial in nature and gives a right to withhold evidence. The communications themselves are not privileged. The privilege is personal to the recipient spouse and one which can be waived. This simply means that the spouse can elect to disclose such communications if he or she wishes.

[30] The appellant's counsel asserts that in order for a spouse to waive spousal privilege, he or she must be made aware of the existence of the privilege and that the privilege did not cease to exist because the witness did not claim the privilege when asked questions about such communications. I agree with this assertion. It would be an empty privilege if a spouse during cross-examination is not advised that she has a right to withhold evidence of communications made to her by her spouse. The fact that she answers such questions without objection cannot constitute evidence of waiver. The Court of Appeal in R v. O'Connor, 2002 3540 (ON CA), 170 CCC (3rd) 365 held that an uninformed consent given by an accused to the police permitting a search of his truck was not a valid waiver of his constitutional rights. In O'Connor, at para. 69, the Court of Appeal held that for consent to permit the police to intrude upon his constitutional rights must be both voluntary and informed. Relying on R v. Willis, 1992 2780 (ON CA), 1992, 70 CCC (3rd) 529, the Court stated: “to establish a constitutionally valid waiver, the Crown must demonstrate that the accused decided to relinquish his or her constitutional right with full knowledge of the existence of the right and appreciation of the consequences of waiving that right. In R v. Borden, (1994) 1994 63 (SCC), 92 CCC (3rd) 404 (SCC) at p. 417, Iacobucci J. observed: “a right to choose requires not only the volition to prefer one option over another, but also sufficient available information to make the preference meaningful.” The legal principle established by these cases is applicable in the case at bar.

[31] I further agree with the appellant's counsel's submission that this is not a matter for the exercise of the judge’s discretion but for the application of the law. Evidence of spousal communications is prima facie inadmissible unless the spouse being asked to disclose such communications waives her privilege. The Crown ought to have advised the appellant's spouse of the existence of the privilege and explained her right to withhold evidence of spousal communications and, after being advised of her rights, asked if such right to withhold evidence was being waived by her. This did not happen. Neither did the judge intervene or defence counsel object.

[32] Neither the court nor counsel for the appellant were in a position to waive the spousal privilege on behalf of the appellant's spouse. In Bisaillon v Keable et al. 1983 26 (SCC), [1983] 2 S.C.R. 60, the Supreme Court of Canada in considering informer privilege, another category of class privilege, stated with respect to the rule that prohibits admission of evidence which could disclose the identity of an informant: “It should also be mentioned that its application is not subject to any formal requirement and, if no one raises it, the Court must apply it of its own motion.” In my view, while the obligation to advise the appellant's spouse of the existence of the privilege rested on the Crown before the Crown cross-examined her with respect to spousal communications made to her by the appellant, I also am of the opinion that in the absence of advice to the appellant's spouse of the existence of the privilege and in the absence of an informed waiver by the spouse, the judge ought to have applied the privilege and refused to allow cross-examination by the Crown of spousal communications made by the appellant to his spouse. The Crown was not in a position to waive spousal privilege. Only S.V.E. could waive the privilege and she did not.

[33] Was there a substantial wrong or miscarriage of justice as a result of erroneously admitting the evidence of S.V.E. with respect to her spouse’s communications to her related to the offence? In my opinion the answer is yes.

[34] First, the Crown made strong submissions with respect to the credibility of the accused based on the spouse’s evidence of what the accused told her. In her submissions, the Crown (see: volume 6 of the transcript of the proceedings at trial at page 40) made the following submission: “It can't be any clearer. The accused lied to his wife from the time this incident happened. And his wife comes to testify. She doesn't know that he's written this letter to her family in January. That in the letter he says: “I checked her sleeping bag and it was damp but not really so I checked her crotch area and it wasn't wet either.” I'm not sure how much bigger a contradiction you can get in terms of version of events and on the critical issue of whether or not the accused touched her crotch he told not just once but maintained when they reviewed the disclosure and any other discussions they have had over the years to his wife that he didn't touch the crotch.” And further, at page 43 of her submissions to the trial judge, Ms. Ward stated: “… I think he hoped that his wife would never have to hear the reality of what he did, but there it is. On a major, major issue that is a significant contradiction in the Crown’s submission.”

[35] Secondly, it is clear from the decision of the trial judge that the evidence obtained from the spouse of the accused on her cross-examination played a central role in his decision with respect to the credibility of the accused. At paragraph 56 of his judgment, the trial judge commented as follows:

In the January 15, 2010 letter and in examination in chief, the accused never mentioned that his hand probably did brush up against her bum. This was only revealed by him while under cross- examination. Meanwhile, in conversation with his wife after his arrest, he told his wife that he had felt K.H.’s underwear but only in the bum area. There are, therefore, three different versions from the accused about the nature of his hand movements when he reached behind K.H., ostensibly to check whether she had wet the bed.

And at paragraphs 58 and 59 of the judgment, the trial judge stated:

Finally, it was definitively established that the accused lied to his wife when initially confronted with this allegation………

The accused, by his own admission in his letter and in his evidence, touched K.H. in the front crotch area. This clearly established, obvious and repeated lies to his spouse, who is arguably the closest and most trusted person in his life on the critical, penultimate issue in this trial, seriously undermines his credibility. The accused's admission of this fact at trial coupled with his self-interest based motivation for concealing this from his wife did not serve to rehabilitate his credibility.

[36] I have certainly not been satisfied by the Crown that the verdict at trial would necessarily have been the same if the error had not been committed. There is little doubt that the judge's finding that the appellant lied to his wife, which was revealed in cross-examination by the Crown of his spouse, played a significant role in the judge's finding that the appellant's explanation of why he touched K.H. was not credible.

[37] For this reason, the appeal succeeds.

Similar Fact Evidence

[38] I have summarized the similar fact evidence and the appellant's evidence in response. I will not repeat that evidence here.

[39] The argument put forth by the Crown before the trial judge was that the similar fact evidence supported an inference that the appellant was not a person who would be deterred by fear of detection by others. In both cases the appellant had been drinking and there were other family members in the house. Secondly, Crown argued that there were similarities of misconduct with respect to fondling or touching of the vaginal area and is relevant to the defence of innocent association.

[40] Appellant’s counsel argued that the alleged similar fact evidence was neither relevant nor admissible because it dealt with an incident approximately 4 years earlier involving the appellant and an adult female both of had consumed alcohol and in circumstances where the female involved had stripped down to her underwear and voluntarily remained with the appellant in a state of undress in the appellant's home after his spouse had retired to bed.

[41] In admitting the similar fact evidence, the trial judge stated at paragraph 21:

The main distinctive features which unify these incidents are that both incidents are alleged to have occurred within the accused's home while other adults were nearby in the home. The second distinctive feature is the accused's apparent explanation of his conduct in both incidents. In each case the accused places reliance on his assertion that both complainants misinterpreted his innocent intentions.

[42] In deciding that the similar fact evidence was admissible, the trial judge relied on R v. Moore, 1994 8730 (ON CA), [1994] O.J. 1685 a decision of the Court of Appeal of Ontario. In Moore, the Court of Appeal heard the appeal from conviction of an Anglican priest for sexually assaulting R.W. At the time the offences took place when R.W. was between 5 and 8 years of age. In Moore, the trial judge had admitted similar fact evidence of sexual misconduct related to a 10-year-old boy, H.S. The Court of Appeal in concluding that the probative value of the evidence outweighed its prejudicial effect and that the trial judge properly exercised his discretion in admitting it as similar fact evidence, the Court of Appeal stated at paragraph 12 as follows:.

The acts alleged by H.S. took place during the same time period as those alleged by R.W. The appellant, in both cases, used his position with respect to the young person to carry out his sexual acts; in the case of H.S. he was the minister of H.S.'s church; in the case of R.W. he was a friend of the family. The evidence showed that sexual assaults could occur despite the presence of adults nearby; lack of privacy was no impediment to the appellant committing sexual acts. The appellant was not deterred from committing a sexual assault out of fear of detection was a distinctive feature of both H.S.'s evidence and the evidence of R.W.

Moore is clearly distinguishable. The similar fact evidence admitted by the trial judge in this case did not involve another child but an adult and there was no temporal proximity between the similar fact evidence and to the alleged offence. The similar fact evidence in the case at bar dealt with an incident approximately four years earlier involving the appellant and an adult female both of whom had consumed alcohol and in circumstances where the female involved had stripped down to her underwear and voluntarily remained with the appellant in a state of undress in the appellant's home after his spouse had retired to bed.

[43] I deciding to admit the similar face evidence, the trial judge also relied on R. v. B. (F.F.) [F.F.B.], 1993 167 (SCC), [1993] S.C.J. No. 21, 79 C.C.C. (3d) 112. In that case, the Supreme Court of Canada held that the probative value of the evidence outweighed its prejudicial effect. In so holding, the court stated at para. 79 of its decision:

With respect to the evidence in question in this case, it is clearly probative of those aspects of the case which the Crown wishes to prove in response to the issues raised by counsel for the appellant. The appellant's acts of physical violence related by L.L. and T.B. and the fear that the appellant nourished in the children in order to control them are similar to the account given by the complainant of the physical abuse she suffered from the appellant and the terror she felt of him. The evidence given by L.L. and T.B. concerns events that were contemporaneous with the offences charged by the complainant, and offers valid explanations for many of the issues raised by the appellant at trial.

R. v. B. (F.F.) [F.F.B.], is also distinguishable from the case at bar. The accused was charged with physical and sexual abuse of a child during the 1950s and 1960s and related to physical and sexual abuse which occurred when the complainant was six years old and continued until she was 16. The similar fact evidence admitted by the trial judge in R. v. B. (F.F.) [F.F.B.] was evidence from those who were children at the time of the alleged offence. As stated by the court, the similar fact evidence concerned events that were contemporaneous in time with the offences alleged.

[44] In this case, I agree with counsel for the appellant that the similar fact evidence admitted in this case had no probative value and was not relevant to either of the issues identified by the trial judge. It will be recalled that the trial judge found the similar fact evidence to be admissible because both incidents are alleged to have occurred within the appellant's home while other adults were nearby in the home and accused's apparent explanation of his conduct that both complainants misinterpreted his innocent intentions. Apart from the significant dissimilarities noted above, the fact that the incident described by D.M. occurred within the accused's home while another adult was nearby in the home is not relevant to the determination that the accused was undeterred by the presence of adults in the same house from his touching of K.H. The touching of the complainant was admitted by the accused. It was not part of his case to suggest that he would not have done such a thing because of the presence of adults in the house. The trial judge also found that both with respect to the similar fact evidence and the evidence of the complainant, the accused placed reliance on his assertion that both complainants misinterpreted his innocent intentions. With great respect, I fail to understand the relevance of the similar fact evidence to the defence of innocent association being advanced by the accused at trial. The evidence of D.M. does not describe any conduct by the appellant which could have an innocent explanation. On the other hand, the conduct of the appellant could be the result the mischaracterization of his acts by the complainant or as a result of a misunderstanding by her. It is my conclusion that the similar fact evidence does not permit an inference against the accused in this case and neither was the similar fact evidence probative of a live issue at trial. The circumstances of the similar fact evidence are dramatically different from the facts alleged against the accused in this case and cannot reasonably be described as having occurred in closely comparable circumstances or contemporaneously. In sum, I agree with counsel for the appellant that the dissimilarities are so stark that there could not be a rational inference of improbability of coincidence.

[45] In my view, the prejudice to the accused in this case outweighed the probative value and it was an error of law for the trial judge to admit such similar fact evidence. While the trial judge at paragraph 43 of his decision concluded that while the similar fact evidence was admissible, he would not give any weight to such evidence and it would not be considered in the courts decision, it is difficult to wipe the adverse impact of such evidence away with such a statement. The appellant had to respond to the similar fact evidence and in the course of doing so made admissions of sexual misconduct which occurred after he had been drinking. In the case at bar, the similar fact evidence adduced by the Crown involved a morally repugnant act where the potential prejudice to the accused was substantial. In such circumstances, the probative value of the evidence must be high to permit its reception. See: McLachlin J. in R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, at p. 735. This was a case that turned on an assessment of credibility of both the complainant and the accused.

[46] Normally, a trial judge's determination that similar fact evidence should be admitted is entitled to substantial deference by an appellate court. However, it is my conclusion that the decision of the trial judge to admit the similar fact evidence was unreasonable and that deference to his decision is not warranted. His error is not negated by his statement that he did not rely on such evidence.

[47] The law is clear that in order to decide that, notwithstanding an error of law, there was no substantial wrong or miscarriage of justice, the appellate court must be satisfied by the Crown that the verdict at trial would necessarily have been the same if the error had not been committed. Section 686(1)(b)(iii) of the Criminal Code is to be used in exceptional cases only, as the Supreme Court of Canada has emphasized in two cases. See Colpitts v. The Queen, 1965 2 (SCC), [1965] S.C.R. 739, at p. 744 and Wildman v. The Queen, 1984 82 (SCC), [1984] 2 S.C.R. 311, at p. 328. In R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595, the Supreme Court of Canada stated at p. 620 that: "[t]he appropriate standard for the application of s. 686(1)(b)(iii) is an onerous one". The Court relying on R v. P.L.S., 1991 103 (SCC), [1991] 1 S.C.R. 909 stated at pp. 620-21:

Accordingly, the question here is whether there is any possibility that the trier of fact would have had a reasonable doubt as to the guilt of the accused had the impugned evidence been removed from their consideration.

In R v. P.L.S., Sopinka J. held for the majority at p. 916, that s. 686(1)(b)(iii) can only be invoked where "the evidence is so overwhelming that a trier of fact would inevitably convict".

[48] It is my conclusion that the evidence in this case was not so overwhelming that the trier of fact would inevitably convict and furthermore, there is a possibility that the judge may have had a reasonable doubt as to the guilt of the accused had the impugned similar fact evidence been ruled inadmissible.

[49] For this reason as well, the appeal succeeds.

Ineffective Assistance of Counsel

[50] In R. v. M.B., 2009 ONCA 524, [2009] O.J. No. 2653 (OCA), the Court of Appeal discussed the applicable legal principles where ineffective assistance of counsel is alleged. In this case, the appellant appeals from his conviction on the grounds that he was denied the effective assistance of counsel at trial. The following principles are applicable:

1. An accused who is represented by counsel at trial is entitled to receive effective legal assistance. This entitlement is embodied in the constitutional protections afforded by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. In R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35, leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347, at p. 57, Doherty J.A. of this court explained:

Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice. This court is under a statutory obligation to quash convictions which are the product of a miscarriage of justice: Criminal Code, s. 686(1)(a)(iii). The accused who is the victim of a miscarriage of justice is entitled to at least a new trial.

2. The burden of establishing ineffective representation at trial warranting appellate intervention rests on the accused. This burden is not easily discharged. Claims of ineffective representation by trial counsel are approached with caution by appellate courts.

3. In order to succeed in a claim of ineffective assistance of counsel at trial, an appellant must establish: (i) the facts on which the claim of incompetence is based; (ii) that the representation provided by trial counsel was incompetent (the performance component of the test); and (iii) that the incompetent representation resulted in a miscarriage of justice (the prejudice component of the test).

[51] The assertion of ineffective assistance of counsel relates to a letter dated January 15, 2010 signed by the appellant and addressed to the complainant and her parents. In that letter, the appellant attempts to explain his actions of November 15, 2008, the date of the alleged offence. In that letter, he sets out the facts surrounding the alleged sexual interference including the following:

At the top of the stairs I clicked the child safety gate closed and went to check on Z.V.E. He had peed in his pull up so I got a new one from his dresser and changed him. As I was changing him, I told him he peed and he was wet, then I kissed him good night on the forehead. I then heard KH say she was wet. I checked her sleeping bag and it was damp but not really wet, so I checked her crotch area and it wasn't wet either. So I told her she was fine and thanked her for helping out with the little kids that evening. Then kissed her on the forehead and went to check on J.V.E. in the next room. J.V.E. was tangled up in his blanket so I untangled him and kissed him good night and then went to bed. …..

My point is by far after all these years we were family and it wouldn't be a big deal to change K.H. I realize now that I made a bad judgment call.

There was absolutely no intention of abuse or sexual pleasure or malice or anything related to the intention of harm to K.H.

I would like to take this opportunity to formally apologize to you and your entire family for my poor judgment call and any and all pain, problems etc. relating to my actions.

I, and absolutely no way, have any interest in K.H. or any other child.

[52] The facts surrounding the sending of this letter to the Crown have been set out above. There had been initial resolution discussions with an Assistant Crown Attorney who was - at the outset of the proceedings - agreeable to a plea to assault subject to the approval of the complainant's family. The family did not agree. On January 15, 2010, on the advice of trial counsel, the appellant prepared the letter of apology to be forwarded to the complainant and to her parents. It was the appellant’s hope that the letter might have caused the complainant's family to reconsider their position and agree to a plea to simple assault. The terms of the appellant's release prohibited any communication between him and the complainant and between him and her parents. Trial counsel advised the appellant that the letter could be provided by the Crown to the complainant without violating the terms of his release. On February 16, 2010, trial counsel faxed a copy of the appellant's letter to the office of Ms. Ward, the Crown responsible for prosecution. Mr. Verbeek had no recollection of any conversation with the Ms. Ward but assumed he must have confirmed she was agreeable to the proposed resolution should the complainant's family approve. In her affidavit sworn on October 28, 2014, Ms. Ward states that she did not engage in resolution discussions with trial counsel and would not have agreed to the proposed resolution. For purposes of this issue, I accept that there were no resolution discussions with Ms. Ward and that she would not have agreed to the proposed resolution.

[53] On March 8, 2010, Mr. Verbeek withdrew any limitation on the use of the letter. Trial counsel testified that he believed he had received instructions from the appellant but had no recollection of any discussion with him. In cross-examination, Mr. Verbeek testified that he was apprehensive about waving any limitation as to the use of the letter and would have communicated his concern to the appellant. Mr. Verbeek testified that notwithstanding the advice he thinks he must have given, the appellant instructed him to waive any limitation on the use of the letter. Mr. Verbeek was of the view that unless constrained by professional ethics, he was obliged to take the appellant's instructions.

[54] Counsel for the appellant indicates ineffectiveness of trial counsel is based on the following:

1. Trial counsel made no attempt to determine Crown counsel's willingness to accept the proposed resolution or pursue such resolution after discussing the letter. If he had done so, he would have found out that Crown counsel would not have been agreeable to the proposed resolution and trial counsel's strategy had no potential for success and could only prejudice the appellant. In these circumstances, the decision of trial counsel to release the letter and his subsequent agreement to waive any limitation on its use could not be described as reasonable professional judgment.

2. Substantial prejudice resulted as the inconsistencies between the letter, the appellant's testimony and statements to his wife were central to the trial judge's rejection of the appellant's evidence.

[55] I am satisfied in this case that the sending of the letter resulted in prejudice to the appellant. The trial judge used the letter to support a finding that the accused was not credible. For example, at paragraph 56, the trial judge stated that:

"In the January 15, 2010 letter and in examination in chief, the accused never mentioned that his hand probably did brush up against her bottom. This was only revealed by him while under cross-examination. Meanwhile, in conversation with his wife after his arrest, he told his wife that he had felt K.H.’s underwear but only in the bum area. There are, therefore, three different versions from the accused about the nature of his hand movements when he reached behind KH, ostensibly to check whether she had wet the bed. The versions range from only feeling the sleeping bag to probably brushing against her bottom to deliberately feeling her underwear in the bum area."

[56] This quote from the trial judgment underscores the use by the trial judge of evidence improperly obtained from S.V.E. on cross-examination, an error which I have addressed above.

[57] The trial judge used the letter as evidence of a contradiction in the appellant's story and it was a factor in his conclusion that the appellant was not credible. While the letter turned out to be prejudicial to the appellant and, although one might be critical of trial counsel's decision to forward the letter to the Crown and of his decision to withdraw any limitation on its use, I am not prepared to conclude that trial counsel was incompetent based on the trial judge’s use of the letter to make findings of credibility against the appellant. In his letter the appellant stated that he touched the complainant in the crotch area. The contents of the letter – that he touched K.H. in the crotch area – mirrored the appellant's evidence in chief. The appellant always intended to give his side of the story in the criminal trial. At worst the letter could be characterized as not being as detailed or comprehensive an admission as the appellant conceded in his cross-examination. In my respectful opinion, the letter did not contain a contradiction on which the trier of fact ought to have based a finding of credibility in whole or in part.

Conclusion

[58] For the reasons given above, this appeal is allowed, the conviction is set aside and a new trial is ordered.

[59] In the circumstances, there is no need to deal with the appeal from sentence.

Murray J.

Released: December 16, 2014

COURT FILE NO.: 135/11
DATE: 2014-12-16

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
G.V.E.

REASONS FOR JUDGMENT

MURRAY J.

Released: December 6, 2014