CITATION: R v. Griffin, 2016 ONSC 2448

COURT FILE NO.: 277/14 DATE: 20160411

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

NICK CHIERA, for the Respondent/Crown

Respondent

• and -

PETER GRIFFIN

MARC HALFYARD, for the Appellant

Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable S. Brown, dated April 2, 2014, and reported as R. v. P.G.G., at 2014 ONCJ, [2014] O.J. No. 3787]

Contents INTRODUCTION. 3 THE CROWN’S EVIDENCE. 5 The Family Room Incident 6 The Office/YouTube Incident 7 The Bedroom Incident 7 The Basement Incident 7 The Recantation. 9 The Emails to the Appellant 10 THE DEFENCE’S EVIDENCE. 11 The Appellant’s Trial Position. 11 The Appellant’s Evidence. 11 THE REASONS FOR JUDGMENT. 14 The Complainant’s Evidence. 14 GROUNDS OF APPEAL. 23 Was the Verdict Unreasonable?. 23 The Positions of Counsel 23 The Law. 24 Analysis. 26 Did the trial judge inappropriately curtail the cross-examination of the complainant?. 28 The Positions of Counsel 32 The Law. 33 Analysis. 34 Did the Trial Judge’s Reasons Create a Reasonable Apprehension of Bias?. 39 The Positions of Counsel 39 The Law. 47 Analysis. 57 The Cross-Examination. 58 The Reasons. 70 Conclusion. 73 Did the trial judge misapprehend the evidence concerning the complainant’s suicide attempts in concluding a portion of the cross-examination was most distasteful?. 79 The Positions of Counsel 80 The Law. 82 Analysis. 82 CONCLUSION. 89

DURNO, J.

INTRODUCTION

[1] The appellant, an Australian, was charged with sexually assaulting his girlfriend’s 15-year-old daughter. The complainant’s videotaped statement to the police was played under s. 715 and she was cross-examined for roughly four hours and ten minutes over two-days. The appellant testified and denied the allegations. He called his girlfriend as a defence witness.

[2] His Honour believed the complainant and rejected the defence evidence. In doing so, he described defence counsel’s cross-examination as a “prolonged and brutal attack on [the complainant’s] character.” Counsel “mocked and belittled” the witness, virtually scoffing at her testimony.

[3] When dealing with the appellant’s evidence about a girl he had coached in swimming who committed suicide in Australia, the appellant cried. The trial judge found:

This response was, in my view, made solely to elicit sympathy. It was staged and dramatic and insincere. I view his crying as being nothing more than crocodile tears. They have large crocodiles in Australia.

[4] His Honour found the appellant’s girlfriend to be “such a biased and unbelievable and unpleasant witness that she ranks in my top ten of witnesses in my career both as a lawyer and a judge.” She was “utterly despicable,” “somewhat deranged” and “a totally unbelievable witness.”

[5] The trial judge convicted the appellant of three counts of sexual assault and imposed consecutive sentences of 60, 60 and 51 days in jail followed by three years of probation and the following corollary orders: DNA, s. 161 for 10 years, s. 110 order for 10 years and SOIRA for life.

[6] In appealing his conviction, the appellant submits the verdict was unreasonable and not supported by the evidence, His Honour improperly curtailed the cross-examination of the complainant with regards to her psychiatric diagnoses, the Reasons for Judgment reflected a reasonable apprehension of bias as a result of the unjustified characterization of the cross-examination and his comments about the appellant’s nationality, as well as the appellant’s and his girlfriend’s evidence. The comments were sarcastic, unjudicial, and reflected prejudicial views of the appellant’s ethnic origin. They created a reasonable apprehension that the trial judge used the nature of the cross-examination to enhance the complainant’s credibility, reject the defence evidence and the defence arguments. Finally, the appellant submits the trial judge misapprehended the evidence that he relied upon in concluding one of the areas of cross-examination was the most distasteful.

[7] For the following reasons, the appeal is dismissed.

THE CROWN’S EVIDENCE

[8] The complainant’s mother and father were separated. She lived with her mother and sister, spending weekends with her father. She was 15 years old in 2010 and 19 when she testified. She had attended university briefly and was working at the time of the trial. When she testified the complainant lived with her father and rarely saw her mother.

[9] The appellant was 39 years old and had no criminal record. He was born in Australia and came to Canada in August, 2007 to pursue a career as a swim instructor. In October, 2007, he started a relationship with the complainant’s mother. They began to live together in March, 2008 and separated in June, 2009. He returned to Australia and came back to Canada in April, 2010, when they began to live together again. As a result of further domestic problems, they separated and he returned to Australia. The complainant first disclosed her allegations of sexual abuse on October 26, 2010, a few days after he returned to Australia.

[10] The Crown’s case was based on four incidents alleged to have occurred in August and September, 2010. The complainant testified about the incidents and adopted her police statement pursuant to s. 715.1 of the Criminal Code. In the s. 715.1 statement the complainant recounted initially recounted four incident but when the officer was reviewing them with her, only three were mentioned.

The Family Room Incident

[11] The complainant testified that in the summer of 2010, a few weeks before school started, she was in the family room with the appellant. She was wearing a t-shirt and sweat pants. She started to talk to the appellant about her body weight and being nervous about going back to school. He assured her that she was not too fat. The appellant put his hand on her leg and started to touch her breasts over her clothes. She moved away, pushed him off, and went upstairs to her bedroom. He followed, went into her bedroom, hugged her, grabbed her buttocks and touched her breasts. She told him to stop, he did, asking her not to tell anyone. While coming from the basement to her bedroom the complainant passed her sister on the steps and said nothing to her.

The Office/YouTube Incident

[12] About a week later, the appellant asked the complainant to come into his second-floor office to watch a YouTube video on his computer. She went in, sat on his lap and hugged him. He felt her breasts, attempted to get under her clothes and grabbed her buttocks. She pushed him off and went upstairs.

The Bedroom Incident

[13] The appellant and the complainant’s mother had an argument in the master bedroom. The appellant came into the complainant’s bedroom, a short distance away, complained about his relationship with her mother and told her that if she was 15 years older he would date her. The complainant told him that she wished there was someone her age like the appellant. He kissed her on the lips, put his hand between her legs and touched her vaginal area over her clothing. In her police statement, she told police that the appellant sat down on her bed while they talked. At trial, she testified that there was nowhere to sit in her room as she slept on the top bunk of a bunk bed. There was no bottom bunk.

The Basement Incident

[14] About a week later, the complainant and the appellant were in the basement. After playing Nintendo Wii, he touched her breast and crotch area, over her clothing, she pushed him away and went upstairs. Apparently, for the first time in cross-examination at trial, the complainant said that she had “jokingly” yelled out to her mother, “Your boyfriend is doing something to me.” Her mother did not reply. The complainant said they did not have a pillow fight in the basement that day. She had never had a pillow fight with him. Later in the evidence her mother said that her daughter had told her that she had yelled up.

[15] The complainant admitted that after being sexually assaulted she would hug the appellant and sit on his knee. She told her biological father that nothing happened between her and the appellant. She did not tell her sister what had occurred.

[16] In cross-examination, the complainant said that she had attempted to commit suicide seven times. She said she had tried to hang herself, slit her wrists and overdose on painkillers by taking four Advils and two Tylenols. No one saw what she did, no one knew. She told no one about her suicide attempts because she “didn’t feel the need to advertise it.” She was never hospitalized. She aborted the cutting and hanging attempts because she did not “have that high a pain tolerance.”

[17] She had told her mother numerous times that she was suicidal but her mother did nothing about it.

[18] Defence counsel showed the complainant excerpts from her Instagram account in which she had referred to her suicide attempts to hundreds of people over the internet. She initially said that her Instagram account was open so that permission was not required for anyone to access it. When confronted with the postings in relation to her suicide attempts, the complainant said that she had two Instagram accounts, one private and one public. Her comments about suicide were on her private one, where she had to either invite or give permission for people to access.

[19] The complainant’s Instagram profile was called “Time to Rebel” and her user name was “Fuck you to society.” Her profile included that she had tried to kill herself four times. When challenged in relation to keeping her suicide attempts private, she said that she only knew one or two of the 332 people who had access to her private Instagram. She referred to it as an anonymous account despite her picture being on the profile.

The Recantation

[20] The complainant gave her first police statement on October 27, 2010. On April 4, 2012, she swore an affidavit recanting the allegations against the appellant. The affidavit was prepared by her own counsel and signed after the complainant received legal advice from an experienced lawyer. She swore that she was angry at the appellant because he made rules she did not want to follow and would not let her wear certain types of clothing. At trial, she testified that she had not seen the affidavit before she was asked to sign it. She clarified that the first time she saw the affidavit was the date she signed it. She had a copy emailed to her several weeks earlier and she had suggested changes to it.

[21] On May 19, 2013, the complainant told her lawyer that the affidavit was false and that the allegations she made to the police in October, 2010, were true. She maintained that position at trial.

The Emails to the Appellant

[22] The complainant testified that after the appellant touched her, his presence made her want to vomit. In cross-examination, she was shown six emails she had sent to the appellant during and after the incidents in which she alleged he sexually assaulted her. After going to a gym with the appellant, she emailed him thanking him very much, “lol I’ll see you Sunday enjoy the rest of your weekend. Love you. xoxo.” In mid-October, she sent an email noting that she did not want him out of her life but he annoyed her a lot. She was glad he realized all “these things, it’s about time.” She ended the email with “I’ll see you tonight at 8 … again hope you had a great thanksgiving. Love you, so.” She also sent the appellant a birthday card signed, “Love you, xoxo.”

[23] The complainant testified that she sent the emails because she wanted to forget about what happened and did not want to upset things. It would have been out of character for her not to tell the appellant she loved him.

THE DEFENCE’S EVIDENCE

The Appellant’s Trial Position

[24] The defence at trial portrayed the complainant as a troubled teen who sought attention. Her mother had prohibited her from using Facebook after finding that she had posted inappropriate pictures of herself. Despite the prohibition, the complainant had opened a Facebook account and her mother found out about it. After the appellant returned to Australia, the defence contended that she made up the allegations in the midst of an argument with her mother. The appellant submitted that in order to deflect attention from herself she decided to throw the appellant “under the bus” knowing he had left the country.

The Appellant’s Evidence

[25] The appellant testified and denied the sexual assaults occurred. He recalled the office and basement incidents but denied any sexual touching occurred. He said the other incidents never happened.

[26] With respect to the basement incident, he agreed that they had cleaned up the basement on the Labour Day weekend. While in the basement he had a pillow fight with the complainant. She was laughing and enjoying herself. With respect to the office incident, he recalled showing her a YouTube video but denied that he touched her sexually.

[27] In October, 2010, about four days after he returned to Australia the second time, he first learned of the accusations from the complainant’s mother during an internet chat. She later told him the police were involved and had issued a warrant for his arrest. He voluntarily returned to Canada in August, 2012 because he realized he was still in love with the complainant’s mother and his employment as a swim coach was in jeopardy with the allegations outstanding. He surrendered to police.

[28] While the appellant admitted giving the complainant’s mother information to provide to the complainant’s lawyer, he denied ever talking with the lawyer who prepared the complainant’s affidavit although the lawyer’s notes have an entry of a phone conversation with him. He said he had no recollection of the conversation that occurred three to four years before he testified. He said that he was under a lot of stress when he heard of the allegations in Australia. He admitted giving the complainant’s mother information to provide to the lawyer.

[29] The complainant’s mother, an elementary school teacher, testified for the appellant. She explained her relationship with the appellant and his with her daughter. She testified that the appellant and her daughter had a pillow fight on Labour Day weekend in 2010.

[30] She first heard of sexual assault allegations on October 25, 2010, five days after the appellant left Canada. She was driving the complainant home from gymnastics when a heated argument started over the complainant’s use of Facebook when she had been forbidden to do so. In the midst of the argument, the complainant said that the appellant had “touched her.” He had touched her breasts. The next day she told her mother that he had touched her vaginal area. The complainant’s mother told her she had done nothing wrong, he was the adult and should know better. The next day she spoke to her principal and arranged to take the complainant to the police the next day.

[31] Between the disclosure and the police statement, the complainant’s mother started to have doubts about the truth of what she had been told. She told the investigating officer of her concerns after the statement was taken. The complainant had made similar allegations when she was younger.

[32] Several months after the police statement, during a “mom and daughter conversation,” the complainant told her that she lied about the allegations and wanted to tell the police she had lied. Thinking it would be better for her daughter to get legal advice, she contacted a lawyer who spoke to the complainant alone. She said that she did not coerce the complainant to recant. She told her to tell the truth. She wanted to do the right thing by her daughter.

[33] The complainant’s mother had emailed the appellant about the allegations and said, amongst other things, “I’ve been told you didn’t touch my little girl, that I would love you even if you did.” She testified that she was torn, confused, and her life was in chaos. She still loved the appellant, despite their separation.

THE REASONS FOR JUDGMENT

[34] The trial judge regarded the case as “one of the most difficult judgments” he had to write in his judicial career. At first blush, it appeared to be a very shaky Crown case.

The Complainant’s Evidence

[35] The trial judge found the complainant, age 19 when she testified was a “bright young girl” who had an 87% average in her last year in high school. He also found that she was a “very troubled girl.”

[36] In regards to her evidence, His Honour found there were twelve “hard questions”:

127 … Why would she go down and sit on the lap of a man who sexually assaulted her a few days before and give him a hug?

128 Why would she send him friendly emails and emails that stated that she did not want him out of her life after the sexual assaults occurred, ending with the phrase "love you xo"?

129 Why would she delay in disclosing these events until he had left the country and moved half a world away?

130 Why would she tell her own father that he had never inappropriately touched her when he asked her directly?

131 Why would she swear a false affidavit after having independent legal advice saying that she had wrongfully accused him of these acts because she had motives to dislike him and his disciplinary role in the household?

132 Was she misleading the Court when she said that she had not seen the affidavit until the day she signed it when, in fact, she had an electronic copy of it for some time before the final paper copy was given to her?

133 Why would she state that she had called up to her mother during the last event in a joking manner that her boyfriend was doing something to her?

134 Why did a mother who had testified that she could hear everything in the house, even in her bedroom from the upper floor, not hear this?

135 Why would the defendant be so bold or reckless as to sexually assault her within mere metres of her own mother's bedroom when her mother was there?

136 Why would she say to the defendant that she wished she knew someone like him who was her age? Was this an attempt to initiate some inappropriate behaviour on her part?

137 How could a young woman with serious psychological issues be believed when she is cutting herself and attempting to kill herself?

138 How would a mother not know that her daughter was so seriously disturbed that she allegedly attempted to commit suicide on numerous occasions?

139 All of these questions raise serious concerns and seem at first blush to be an insurmountable hurdle for the Crown considering the standard of proof beyond a reasonable doubt that I hold them to.

[37] The trial judge concluded the complainant did not waiver in her essential allegations. It was the officer’s method of questioning that led her to omit an incident in her police statement. That she would sit on the appellant’s knee after the incidents was understandable when taken in the context of the life that she was living as a child victim of a vicious separation and divorce, and having an uncaring and somewhat deranged mother who constantly yelled, screamed and caused havoc in the household. That she would send emails saying she loved the appellant was part of her pattern of wanting to return to some semblance of an affectionate and caring relationship. She craved normalcy in her chaotic life. With respect to the affidavit, she went along with her mother’s overwhelming persistent and unrelenting pressure to recant.

[38] With respect to defence counsel’s cross-examination of the complainant, His Honour found:

35 T.B. was cross-examined over a two-day period in a vigorous and somewhat brutal fashion. She was portrayed by Mr. Bayliss as an incredible witness who ultimately fabricated this evidence so that she could avoid a conflict with her mother over having secretly opened a Facebook account again after she had been prohibited from doing so.

36 It was suggested that she was an attention seeker and that she was sexually suggestive to the defendant by her wanting hugs and affection that she did not get from her father that were nobly rebuffed by the defendant time and time again.

39 Mr. Bayliss virtually scoffed at her testimony that she had tried to kill herself the number of times that she had said that she had and had not been successful.

42 Throughout this prolonged and brutal attack on her character she maintained a grace and composure that was exceptional to witness in light of her youth and her troubled past.

121 This trial was a full-scale attack on the credibility of a disturbed and vulnerable teenager who has endured many hardships in her life and yet continues to move ahead in an admirable manner. Taken on its face, it is a trial concerning allegations of a supposedly attention-starved disturbed teenager who makes sexual assault allegations about a man when he is on the other side of the world and who then recants those allegations, under oath, after having received independent legal advice.

164 The part of this trial that was most distasteful to me was the evidence of the complainant's emotional and psychological problems. Her Instagram account showed her having carved words on her arm, being in a hospital and being challenged on how often she had attempted to commit suicide and why, if she had tried to hang herself so many times, that she was not successful. She satisfactorily explained all of these attacks in cross-examination. The fact that she had tried to hang herself several times, she stated that she had a low pain threshold and would abort the attempt. She was then cross-examined as to why she did not have any marks on her neck. Why did she just go to school the next day? Why did not anyone notice her physical marks or low mood? The complainant answered all of these questions satisfactorily and honestly, in my opinion.

165 Mr. Bayliss seems to have missed the point that a troubled teen can attempt suicide by briefly putting a ligature around their neck and within seconds abandoning the attempt. That does not make it any less of a suicide attempt. It does not necessarily leave marks. The fact that she does not cut deep enough does not make it any less of a suicide attempt. The fact that if she only takes 6 over the counter pills does not make it less of a suicide attempt at the time in her mind. It makes it fortunately, an unsuccessful suicide attempt or a half-hearted one. This was not to be mocked or belittled as it was to show that she had no credibility. That reasoning would suggest that if only she had succeeded at killing herself would she be credible.

[39] As regards the appellant’s evidence, His Honour found:

45 It also appears that [he], although quick to describe himself as an "Olympic" coach, was simply a coach that was qualified to coach competitive swimming athletes up to and including Olympic swimming. There is a dearth of evidence to support him being actively involved in high level swimming coaching despite his eagerness to be classified as such…

53 About the second incident, he recalls with vivid exactitude and precision details …

54 Regarding the final allegation, [his] recall about that incident is eerily precise considering that really nothing untoward happened on his account considering the living hell that he was enduring on a frequent basis due to conflict in this family…

57 This remarkable clarity of memory was shaken to its foundations, however, when he was confronted with his lie that he had not communicated with the lawyer of [the complainant] when he was in the process of drafting an affidavit that recanted her allegations.

65 She indicated that her husband left the family in January 2007. She says that she met the defendant in the middle of November 2007 and that they started cohabiting in March 2008. I note that this evidence is contrary to the defendant's exquisitely detailed account of how they met on Halloween in 2007.

66 His evidence is so replete with detail that it goes on about this issue from pages 44 to page 48 of the August 30th transcript saying how he recalls that it was Halloween night in 2007 that they first spoke on the phone and he then met with her on the Friday night following this conversation. This would have put their first meeting in early November according to him. It is a small point, but it is one worth mentioning because of the defendant's habit of giving his evidence with absolute certainty that I found off-putting on more than one occasion.

140 Even given that, the defendant's denials and her mother's testimony seem to have a logical explanation for every event. They paint the complainant as a misguided attention-seeking girl who is a chronic liar and whose evidence cannot be relied upon.

[40] With respect to the complainant’s mother, His Honour found:

95 Even though the witness sent an enraged email to the defendant on the night that she was advised of the allegations by her daughter, being October 25, 2010, one week later she sent the following email to the defendant as set out in Exhibit 12:

• [the appellant], I have been told that it is a lie, that you didn't touch my girl. I still love you even if you did. Please tell me you still love me.

• Be online please at 10 pm my time tonight (Oct 31 here)

96 First, her statement that she had been told it is a lie, according to her evidence, only would emanate in screaming matches with her daughter when she accused her of lying. Secondly, what sort of person would write that she would still love him even if he did touch her daughter? That to me is clear evidence as to what type of mother this witness was to her daughter.

98 These series of emails contained in these exhibits show nothing other than a mother intent on discrediting her daughter in an effort to resume her flawed relationship with this defendant.

106 The rest of this witness' evidence in cross-examination was replete with inconsistencies and evidence that showed her undying willingness to put this flawed love affair with this man above the best interests of her daughters.

107 This absolute determination and the willingness to do anything or say anything to support the defendant by this witness even spilled over into submissions on December 19th, 2013.

108 I had to chide [the appellant’s girlfriend] about her conduct in the court during Crown submissions. This only points to the bias that I found her to have towards any criticism of her boyfriend, the defendant, or of herself.

THE COURT: Ms. [.], if you're going to sit in the back and shake your head while Crown submissions are going to be made, I'm going to ask you to sit outside. Understand that?

147 K.J. was such a biased and unbelievable and unpleasant witness that she ranks in my top ten of witnesses in my entire career both as a lawyer and a judge that I can say that I do not believe a word that she says.

148 She relentlessly pressured her daughter to recant her allegations until she was successful in that quest. She constantly said to her "I know you are lying". She hired a lawyer and fed him all sorts of information, in conjunction with her scheming with the defendant, that would paint her daughter in the worst possible light, all in an effort to resume a flawed and poisonous relationship that allowed her to pick up this relationship with her hero while throwing her own daughter's welfare to the wind.

149 She would say anything to paint her boyfriend in a positive light and her daughter in a negative one. She was utterly despicable, in my view, and a totally unbelievable witness.

[41] His Honour found the question was whether the witness’ evidence was “in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

[42] Applying, R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, the trial judge rejected the appellant’s evidence, found it did not leave him in a state of reasonable doubt and concluded the complainant’s evidence satisfied the Crown’s onus.

[43] He found the complainant to be a very credible witness despite her weaknesses and flaws.

[44] His Honour concluded:

123 I found T.B. to be a very credible witness despite her weaknesses and flaws.

124 Looked at it objectively, dispassionately and logically, the complainant's evidence, in my opinion, had the ring of truth to it and was not eroded or destroyed despite what can only be described as a no holds barred cross-examination by a skillful and aggressive counsel. In my opinion, it was strengthened by her responses and her grace under fire.

126 Also, her essential allegations of the assaults remained consistent and unchallenged after a vigorous and prolonged cross-examination.

141 My editorial comments while summarizing the evidence so far may give the reader a hint of my opinions in this case. They could not help but come out.

142 I find the evidence of both the defendant and his girlfriend, the mother of the complainant, to be utterly incredible for the reasons that have been particularized in my summary of the evidence.

143 The defendant testified like a video recorder, knowing and relating every miniscule detail of what were mundane events with a precision that was surreal and at the same time contrived. He had obviously put considerable effort in an attempt to mislead this Court.

144 He intentionally lied under oath when he was asked whether he had in any way communicated with Mr. Benayon and stated positively that he had not. When he was confronted with the evidence that he had called his accuser's lawyer from Australia, his attempt to wiggle out from that lie was pathetic and enlightening to me.

146 He cried at one point when discussing that he had coached a girl in Australia that had been raped and then committed suicide… This response was, in my view, made to solely elicit sympathy. It was staged and dramatic and insincere. I viewed his crying as being nothing more than crocodile tears. They have large crocodiles in Australia.

147 [The complainant’s mother] was such a biased and unbelievable and unpleasant witness that she ranks in my top ten of witnesses in my entire career both as a lawyer and a judge that I can say that I do not believe a word that she says.

149 She would say anything to paint her boyfriend in a positive light and her daughter in a negative one. She was utterly despicable, in my view, and a totally unbelievable witness.

151 Her evidence did not waiver in her essential allegations. Although much was made about her leaving out the YouTube incident in her police interview as being something sinister because it was suggested that she would not have gone down and sat on the lap and hugged a man who had recently sexually assaulted her, I think that a fair interpretation of the evidence is that Constable Newham's method of questioning her lead her to omit that incident from a question that he posed. She was a vulnerable 15-year-old girl faced with a video interview with a male police officer who was in a way misstating or summarizing her evidence. She felt intimidated and did not want to correct him. That is not unreasonable, in my view.

154 However, when taken in the context of the life that she had at that time it does become understandable. This was a child who was a victim of a vicious separation and divorce, an uncaring and somewhat deranged mother who constantly yelled, screamed and caused havoc in the household. She had seen the defendant as a cool guy, younger by 19 years than her father and someone who could give her the affection that she craved.

161 She gave the evidence of her signing a sworn affidavit recanting the allegations after receiving independent legal advice in an honest and straightforward and believable manner. She went along with her mother's overwhelming persistent and unrelenting pressure to recant.

167 Even though I have rejected the defence evidence as being contrived and unbelievable, I still have had a hard look at the evidence of the complainant, which at first may seem problematic. Considering that I found her to be a very credible witness even after a prolonged and intensive cross-examination, I found that her explanations and evidence were logical and truthful and made sense to me in the madness of what was her life at the time.

GROUNDS OF APPEAL

Was the Verdict Unreasonable?

[45] It is appropriate to examine the unreasonable verdict ground of appeal first. Were the appellant to succeed on that ground, the result would be an acquittal and it would not be necessary to address the remaining grounds.

The Positions of Counsel

[46] The appellant submits that the problems with the complainant’s evidence were so significant that it was unsafe to convict on her evidence. No properly instructed jury or judge could convict in the face of the inconsistencies and improbabilities in her evidence.

[47] The appellant concedes His Honour examined the problems with the complainant’s evidence but contends he did so piecemeal, looking at each problem and explaining it away. The error was never looking at the cumulative effect of the problems. In effect, the appellant submits the cumulative effect of the problems were insurmountable by the Crown.

[48] The appellant relies upon the Court of Appeal judgment in R. v. M.G, (1994), 93 C.C.C. (3d) 47 where the following comments from the British Columbia Court of Appeal in Faryna v. Chorny (1952), 1951 252 (BC CA), 2 D.L.R. 354 (B.C.C.A.) at p. 12 were cited with approval:

The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case. [Emphasis added in original.]

[49] The Crown submits that an appellate court has no right to interfere with factual findings on the basis that it may disagree with the conclusions. Intervention is only permitted if there was no evidence upon which the finding was available to the trier of fact. The trial judge explained how and why he believed the evidence of the complainant and why the defence evidence was rejected. The findings were reasonable and no further explanation was required.

The Law

[50] The test for an unreasonable verdict was set out by Doherty J.A. in R. v. Willock (2006), 2006 20679 (ON CA), 210 C.C.C. (3d) 60 as follows:

[22] Section 686(1)(a)(i) of the Criminal Code mandates appellate review of the sufficiency of the evidence said to justify the conviction. The review is a limited one. An appellate court must determine whether a properly instructed trier of fact, acting judicially, that is reasonably, could have convicted the accused on the totality of the evidence. In performing this task, the appellate court must view the entirety of the evidence through “the lens of judicial experience”: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at para. 40 (S.C.C.).

[23] In exercising its power to review the reasonableness of the verdict, the appellate court cannot simply substitute its view as to the appropriate verdict. Nor is it sufficient for the appellate court to have a “lurking doubt” or some other vague discomfort as to the correctness of the verdict. As Arbour J. said in Biniaris at para. 42, in describing the function of appellate review for reasonableness:

To the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal experience and insight…

[24] Where the verdict is reached by a judge alone, the reasons of the trial judge can provide valuable insight into the reasonableness of the verdict. However, errors in the reasons are not a pre-condition to a finding that a verdict is unreasonable, and errors do not compel a finding that the verdict is unreasonable: R. v. Biniaris, supra, at para. 37.

[51] The question is not whether a conviction was the only reasonable verdict, but whether it was a reasonable verdict: R. v. Portillo (2003), 2003 5709 (ON CA), 176 C.C.C. (3d) 467 (Ont. C.A.), at para. 51.

[52] As the trial judge made findings of credibility in relation to all of the witnesses, in seeking to overturn a conviction based on credibility findings and inferences, the following law applies from R. v. Clark, (2005), 2005 SCC 2, 193 C.C.C. (3d) 289 (S.C.C.) at para. 9:

...Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: [citations omitted]

[53] The Court of Appeal for Ontario summarized the law in regards to palpable and overriding error in R. v. D.T., 2014 ONCA 44, at para. 80 as follows:

An appellate court may only intervene in a trial judge's credibility analysis if that analysis is the subject of a palpable and overriding error. In Waxman v. Waxman [citation omitted] this court described the palpable and overriding error standard:

The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear: [citation omitted]. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: [citation omitted].

[54] The Court of Appeal also addressed the deference to credibility findings in R. v. Benson, [2015] ONCA 827 at para. 21 as follows:

While appellate courts retain the power, pursuant to s. 686(1)(a)(i) of the Criminal Code to reverse trial courts' verdicts where the assessment of credibility made at trial is not supported by the evidence, this is done sparingly. Appellate courts show great deference to findings of credibility made at trial, and will only interfere with findings of credibility in exceptional circumstances: R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, p. 131; R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at paras. 5-7. Trial judges are in a special position to assess credibility issues as they have the advantage of seeing and hearing the evidence of witnesses.

Analysis

[55] I am not persuaded the verdict was unreasonable. No doubt, there were many problems with the complainant’s evidence. It was a one Crown witness case. The complainant’s evidence bore the entire weight of the prosecution. There was no confirmatory evidence; none was required. The trial judge saw and heard the Crown and defence witnesses. He adverted to some of the problems with the complainant’s evidence and addressed them in his Reasons.

[56] While His Honour addressed the problems individually after setting out the problematic aspects of her testimony, I am not persuaded that the trial judge viewed the case in the piecemeal fashion contended. After setting out the problematic areas, it was appropriate to address those areas in the manner His Honour did. From reading the reasons as a whole, I am not persuaded the trial judge in effect compartmentalized the individual problems to the exclusion of the ‘big picture.’ His Honour concluded, “… when examining the evidence of all the witnesses as a whole and applying common sense to the totality of the evidence, I am left with the firm opinion that the Crown has proven these allegations beyond a reasonable doubt,” at para. 122.

[57] His Honour accepted the complainant’s evidence despite the challenges to her credibility and reliability. The appellant has not demonstrated that the reasons reflect palpable and overriding error. That another judge may have or would have had a reasonable doubt is not the test. On this record, a judge could have acquitted. I am not persuaded the evidence was such that any trier of fact had to acquit because of the frailties in the complainant’s evidence. The question is whether a properly instructed trier of fact could have reached the conclusions the trial judge reached. The answer is ‘yes.’

Did the trial judge inappropriately curtail the cross-examination of the complainant?

[58] The appellant unsuccessfully sought the complainant’s medical records in a third party records application at the outset of the trial. The trial judge read some the records but did not order them disclosed. On that application, the complainant’s Instagram postings were not relied upon by the appellant.

[59] The issue arose in the following way during the cross-examination:

Q: … Now, I understand that – and I don’t want to – I understand that you’ve had some counselling. Is that right?

A: Yes.

Q: I don’t want you to tell me anything about what you said to your counsellor and what your counsellor she said to you. But when did, when did you start your counsel?

A: I’ve seen multiple therapists in the past three years. So, it depends on which one you’re talking about.

Q: Okay. Well, what, what, what I’m asking you is when, when is the first time you started to seek psychological counselling?

A: Before this happened; it was earlier in 2010. I was seeing – I don’t remember exactly.

Q: Okay. Well, your parents went through a very nasty separation and divorce, right?

A: Yes.

Q: … I understand that the – it was 2007 when your, when your parents actually stopped living in the same house together. Is that right?

A: Yes.

Q: And it was shortly after that you started taking counselling?

A: I briefly went to a counsellor but didn’t like the set-up, so we stopped going.

Q: That is – that would have been in 2008 or 2007?

A: I like 2008 ‘cause [the appellant] was around.

Q: So generally, you started the counselling sometime in 2008 and it’s continued until the present time. Is that true?

A: With different therapists, yes.

Q: With multiple therapists. Is that right?

A: Yes.

Q: Now, have you had any particular diagnosis?

[60] Crown counsel objected and the complainant was asked to leave the courtroom.

[61] The arguments proceeded in two stages. First, defence counsel submitted that as long as he was not asking the witness to talk about any conversation she had with a therapist, that he was permitted to ask about counseling she had received. He understood that the complainant had been diagnosed with Borderline Personality Disorder and “that has to be relevant to her credibility.” That the records were not disclosed did not prevent him from asking if she had been diagnosed with a particular problem that could affect her credibility. All he wanted was to ask her diagnoses. Counsel submitted that R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, specifically permitted that type of question. The onus was on the Crown to produce authorities that precluded him from asking the question.

[62] The trial judge told counsel that the only way the complainant would know what diagnosis the therapist made was from what the therapist told her. He could not do by the back door what he was prevented from doing by the front door on the third party records application. His Honour ruled that a diagnosis obtained from a therapist had an “inherently private and personal aspect” to it so that the admissibility of what she was told was “governed by the records application.” If it was in the records it should not be disclosed. He did not feel it was an appropriate question.

[63] Counsel then submitted that there was a second reason that the question was relevant and produced printouts from the complainant’s Instagram account that were not part of the court record or in the Crown’s possession. The defence position was that the witness is “an untruthful person who constantly tells untruths about … herself and others.” She was “a very disturbed young lady who lies constantly, who lies about own life experiences in these public documents.”

[64] The Instagram printouts included the following postings: “I tried to kill myself four times; I’ve been diagnosed with PTSD, BPD, severe depression, subclinical anorexia with bulimic tendencies and severe anxiety.” The defence contended that a number of those things were not true and expected her to say that some of the posted diagnoses were not true.

[65] Her comments were contained in what was basically a public document so that privacy concerns had to be considered in that context. She had hundreds of followers and no concerns about privacy when putting the information in a public document circulating it to hundreds of people. Counsel was simply asking “what she believed her diagnoses were and if that was consistent with what she has posted online.” It was important to her proclivity to exaggerate.

[66] The Crown argued that the evidence was hearsay – what the therapist told her. The Instagram messages were open for cross-examination but anything that would be in the psychiatric records was not.

[67] The trial judge refused to allow the revised question, noting that the evidence was hearsay. His Honour accepted defence counsel’s submission that similar evidence had been accepted without objection in other cases but held:

That is done to expedite processes, to avoid calling unnecessary witnesses, but this case has been the subject to a records application. There’s been a ruling on it and the information that I consider communicated to her from any therapist that she’s had is hearsay evidence. I’m going to allow the, you know, limited questioning with respect to what she has posted online and – but I’m not going to allow her to be asked as to what diagnosis she has been given, if any, by any therapist.

The Positions of Counsel

[68] The appellant submits that the trial judge erred in finding that what the complainant believed her diagnoses to be was hearsay. The evidence was not being introduced for the truth of its contents, the hearsay concern. Rather, it was her understanding of her diagnoses compared to the diagnosis she had publicly posted.

[69] The Crown submits His Honour properly curtailed questions on areas that had been ruled inadmissible. In the respondent’s view, the “singular goal of the defence tactic was a collateral attack on the witness’ credibility.” While the trial judge ruled the evidence was inadmissible as it offended the hearsay rule, it was also inadmissible as collateral fact. The defence would have had to call evidence that the diagnoses in the complainant’s medical reports were not as she had posted on the internet. The insurmountable hurdle for the appellant was that the records had been ruled inadmissible. No appeal is taken from that ruling.

The Law

[70] A judge cannot curtail cross-examination that is relevant to the trial issues or the credibility of witnesses: R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont.C.A.) at p. 230. However, a trial judge has the discretion to curtail cross-examination on collateral issues that are “not apt to assist in the resolution of the issues in dispute:” R. v. Khanna, 2016 ONCA 39, at para. 3.

[71] The collateral fact rule does not regulate cross-examination about prior utterances that contradict the witness’s evidence on a collateral matter. Rather, it governs the ability of the cross-examiner to introduce extrinsic evidence in his or her case to contradict answers given by the witness on collateral matters: Khanna, at para. 9.

[72] The Supreme Court of Canada outlined the approach to objections that the evidence sought to be introduced is hearsay in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 as follows at paras. 56 -59:

56 The first matter to determine before embarking on a hearsay admissibility inquiry, of course, is whether the proposed evidence is hearsay. This may seem to be a rather obvious matter, but it is an important first step. Misguided objections to the admissibility of an out-of-court statement based on a misunderstanding of what constitutes hearsay are not uncommon. As discussed earlier, not all out-of-court statements will constitute hearsay. Recall the defining features of hearsay. An out-of-court statement will be hearsay when: (1) it is adduced to prove the truth of its contents and (2) there is no opportunity for a contemporaneous cross-examination of the declarant.

57 Putting one's mind to the defining features of hearsay at the outset serves to better focus the admissibility inquiry. As we have seen, the first identifying feature of hearsay calls for an inquiry into the purpose for which it is adduced. Only when the evidence is being tendered for its truth will it constitute hearsay. The fact that the out-of-court statement is adduced for its truth should be considered in the context of the issues in the case so that the court may better assess the potential impact of introducing the evidence in its hearsay form.

Analysis

[73] First, on appeal the Crown raised an argument that was never raised at trial – that the questioning about the complainant’s diagnoses was on a collateral issue and accordingly, was inadmissible. In his factum, the Crown submits there is a general discretion to exclude evidence where its probative value is outweighed by its prejudicial effect. This was particularly so, where the attack was on a collateral issue based solely on credibility. I agree. However, that was not the Crown’s position at trial.

[74] Mr. Cheira further submitted the appellant could not cross-examine the complainant on collateral issues because he would have had to introduce evidence of her diagnosis and could not do so because the third party records application was dismissed.

[75] Understandably and appropriately, the collateral issue argument was not raised by Crown counsel at trial. Witnesses can be cross-examined on matters that are collateral to the issues in dispute. However, the trial judge has the discretion to curtail cross-examination in areas that are not apt to assist in the resolution of the areas in dispute: Kahal, at para. 3. It is not a blanket prohibition on cross-examination on collateral issues.

[76] To the extent that the Crown raises the collateral fact rule, that rule prevents the cross-examiner from introducing evidence to contradict answers received in cross-examination on collateral matters: Kahal, para. 9. There was no suggestion the appellant wanted to introduce the records in regards to the first question he asked. For the second question, there was no need for the records. It was the witness’s understanding that was relevant, not the actual diagnoses.

[77] Second, on trial counsel’s first submission he wanted to introduce the diagnoses for their truth – that the complainant had Bipolar Disorder because it could impact on her credibility. Trial counsel was in error in submitting that a diagnosis of Borderline Personality Disorder has to be relevant to the witness’ credibility. A diagnosis of a mental disorder in itself does not affect credibility. R. v. Gravesande, 2015 ONCA 774, at para. 24. No doubt, some diagnosis such as delusional thinking or compulsive lying could impact on credibility. It is inaccurate to say that a Borderline Personality Disorder diagnosis means the witness is less credible without expert evidence.

[78] Third, part of the problem in this area was the questions counsel raised before the objection. It was understandable that he would not want to show the witness that he had her Instagram messages before determining what she believed her diagnoses to be. However, the question that led to the Crown’s objection was “Now you have had multiple diagnosis?” While he had not asked for the diagnoses, likely expected a simple ‘yes’ answer and not the diagnoses, the Crown properly objected.

[79] From defence counsel’s initial submissions, he wanted to ask the witness the diagnoses that she had received and that he did not want to get into privacy concerns with conversations she had had with therapists. However, the diagnoses would involve what she was told by therapists and would have been included in the third party records. Trial counsel did not provide the trial judge with the portions of O’Connor that he suggested permitted him to ask what diagnoses she had received. Nor did he direct the trial judge to the portions that limit third party records exclusion to conversations between the witness and the therapist. I have not been directed on the appeal to anything in O’Connor that would permit the question.

[80] As the submission at trial proceeded to the second argument, defence counsel clarified his position, “I’m simply asking what she believes what her diagnoses were and if that’s consistent with what she has posted online.” It was not so much the fact of the diagnoses as what the witness was saying to different people at different times. Counsel analogized to witnesses who testify as to medical diagnosis they have been given.

[81] Considering Khelawon, based on the second argument, what the appellant sought was not hearsay. The evidence would have been hearsay were it to be admitted for the truth of its content – that the witness had the various mental conditions she posted on Instagram. While that was the effect of trial counsel’s first argument, by the second argument that was not the purpose for which the question was being asked. Whether she had a mental disorder was irrelevant and not sought. Whether her therapists had actually told her she had any of the diagnoses was not the issue. It was her understanding of her diagnoses compared to what she had posted on Instagram. Had she been asked that question and said that all of the diagnoses on Instagram were her understanding of her diagnoses, the appellant would have been precluded from calling evidence that she had not been diagnosed with those conditions.

[82] What remains is what the trial judge characterized as the ‘back door’ argument. Was the appellant trying to introduce the contents of the third party records when His Honour had held that they were not to be disclosed? On trial counsel’s questioning and first argument, he was seeking to introduce evidence that would be covered by the ruling. On his second argument with the clarified question, in these circumstances, I am not persuaded that he was.

[83] I am not persuaded the witness’ understanding of her diagnoses here was inadmissible simply because it would have resulted in her disclosing something that likely would have been in the records. The information was available to over three hundred people. Understandably counsel did not rely on the Instagram records on the third party records application, presumably concerned that the witness would learn that defence counsel had them. There was no application to revisit the ruling although it would have been a formidable hurdle for the appellant to get over that he “sat” on the Instagram records and now sought to rely on them.

[84] In these circumstances, I am inclined to the view that in these particular circumstances the trial judge erred in preventing counsel from cross-examining on the question he said he wanted to ask in the second portion of the admissibility argument. However, I also find that the error occasioned no substantial wrong or miscarriage of justice: s. 686(1)(b)(i).

[85] The Supreme Court of Canada has described the proviso as follows in R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 45:

45 The curative proviso can be applied in two situations: where the error is so harmless or minor that it could not have had any impact on the verdict; and where, even if the error is not minor, the evidence against the accused is so overwhelming that any other verdict would have been impossible to obtain (R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 81; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 26).

[86] While the evidence here is far from overwhelming, I find that when the Reasons are read in their entirety that this error was minor because it could not have impacted on the verdict. The trial judge provided comprehensive reasons for his credibility findings. If the witness said that all of the posted diagnoses were consistent with her understanding, the question would not impact on her credibility. If there were differences, I am not persuaded that the impact would have affected the verdict.

Did the Trial Judge’s Reasons Create a Reasonable Apprehension of Bias?

The Positions of Counsel

[87] The appellant submits that the appellant did not receive a fair trial because the Reasons for Judgment exhibited a reasonable appearance of bias. Mr. Halfyard questioned whether the trial judge approached the case without prejudice against the appellant and without sympathy for the complainant; whether His Honour improperly used his contempt for the manner in which trial counsel cross-examined the complainant, his rejection of the appellant’s evidence, contempt for the appellant and/or his girlfriend and/or the defence advanced to give weight to the Crown’s evidence in making his findings; and whether His Honour applied a different standard of scrutiny to the appellant’s evidence than to the complainant’s testimony.

[88] The appellant does not submit that there was actual bias. Rather, he submits that “the tone of the Reasons for Judgment, including the comments made about defence counsel’s manner of cross-examination, sarcastic comments regarding the appellant’s and [his girlfriend’s] evidence and the comments about the complainant’s evidence provide a reasonable basis for the appearance of bias.” The “tone and timber of the trial judge’s manner of conducting the trial and the comments in his reasons would suggest unfairness to an impartial observer.”

[89] Referencing the Supreme Court of Canada judgment in R. v. S.(D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, the appellant submits that the words and actions of a trial judge can create an appearance of unfairness. For the justice system to have “the respect and confidence of its society … fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer.”

[90] The appellant submits that justice must not only be done, but also be seen to be done. “This standard of fairness requires that a court hold its hearings in a serene manner, without bias or appearance of bias, allowing each party the opportunity to fully and adequately present his or her case,” relying on R. v. Roy, (2002), 2002 41133 (QC CA), 167 C.C.C. (3d) 203 (Que. C.A.) at p. 208. While no trials are perfect, where the trial judge’s conduct devolves into condescension, mockery or ridicule of the accused, the witnesses or defence counsel, such that a reasonably informed observer would conclude the trial was conducted unfairly, it results in reversible error.

[91] Further, the appellant notes that throughout the lengthy cross-examination the trial judge said nothing that would suggest defence counsel was abusing the witness, being hostile towards her or needlessly heckling her. Nor did His Honour raise the nature of the cross-examination in submissions so that counsel would have an opportunity to make submissions on that issue. It was not until the Reasons for Judgment that the trial judge felt it was appropriate to raise his concerns. While not conceding that the cross-examination was as described by the trial judge, the appellant submits that if His Honour was correct, that he had an obligation to intervene and to give counsel an opportunity to address the concerns in submissions.

[92] With regards to the rejection of the two defence witnesses’ evidence, the appellant submits that the Reasons were “both sarcastic and unjudicial.” His comments regarding crocodiles in Australia illustrated a “general prejudice towards the appellant’s ethnic origin” and were “particularly problematic.” The reasonable observer would have concerns that this very harsh rejection of the defence evidence may have impacted his decision to believe the complainant by engendering sympathy, an improper means of evaluating the witness’ testimony. It raises concerns that His Honour’s forgiveness in relation to the numerous problems with the complainant’s evidence was influenced by the trial judge’s obvious contempt for the appellant, his witness and his counsel’s cross-examination of the complainant.

[93] The Crown submits that the trial judge’s comments with respect to Australia and crocodile tears were “race-based,” “inappropriate colloquial rhetoric,” “unnecessary and unwarranted.” However, nothing was said or done during the course of the trial that would suggest His Honour was biased based on the appellant’s ethnicity. There is only the one comment to suggest the trial judge based any of his decisions on the fact the appellant was Australian.

[94] With regards to the adverse findings in relation to the defence witnesses, His Honour made significant negative findings. In describing those findings, his words were nothing more than an expression of those significant findings. Nothing was said or done during the trial to suggest the trial judge had prejudged the witnesses’ testimony.

[95] With regards to the trial judge’s comments about defence counsel’s cross-examination, his strongly worded findings were justified although His Honour should have intervened to restrict the inappropriate questioning and raised his concerns in submissions so that counsel could respond. However, neither the failures to intervene or provide counsel with an opportunity to respond created a reasonable apprehension of bias.

[96] The Crown notes four instances where counsel “crossed the line from vigorous cross-examination to a discourteous attack on the witness.” His Honour expressed this reality through his description of the cross-examination the complainant endured.

[97] The four instances were as follows:

June 26, 2013: p. 122 after the complainant said that her father had asked her if the appellant had ever touched her:

Q: Okay, in any event, when you made this allegation against [the appellant] to your mother, your father had just made this suggestion to you couple of days earlier, right?

A: Yes.

Q: So it was all very convenient, wasn’t it?

Crown: Your Honour, I don’t know how she is supposed to answer that. First of all, the tone is getting really condescending towards her. And I mean that’s not even really a question.

The Court: No. That’s a statement.

June 26, p. 124:

Q: and when is the first time you saw that affidavit?

A: That day. No, I saw it in an email maybe a week or two before, but I didn’t physically see it until that day.

Q: Well, which, which was it, [complainant]? Did you see it that day or did you have it for a number of weeks before Mr. Bennyan attended at your house on April 14^th?

Crown: Your Honour, she’s explained that that affidavit, she saw that day. She then clarified that she saw it in an email earlier. Counsel is trying to twist her words and make it sound like she’s saying I’ve never seen it before. That’s not fair to her.

The Court: No. I think, I think the answer is clear. The first reference was to the affidavit itself. The second one was, I guess, to the context of the affidavit.

July 4, 2013, p. 19-20 after counsel had asked the complainant about specific paragraphs of her affidavit and her lawyer’s questions to her about each paragraph:

Q: … and then paragraph nine, “I thought [the appellant] argued with my mother too much. I wanted to keep him and my mother apart. I was angry that my mother was not with my father anymore.” So let’s just take that. First of all, did Mr. Benayon ask you if that paragraph was true?

A: He never specifically asked paragraphs. He just asked me to read through it and say if there was any issues with it or if it was all true.

Q: Okay. Well, I’ve just gone through the – I don’t want to have to go back over everything again. But I’ve been going through paragraph by paragraph and asking you if he asked you if it was true and you said yes, he did.

A: I misunderstood. I’m sorry.

Q: Okay. So we just forget about what we said for the last four para, para, paragraphs four to seven?

Crown: Well, Your Honour, I think counsel is being a little dismissive of her answers. I mean she’s testified that counsel had to read the entire affidavit. That would be each paragraph, and tell if it was true. So when he’s asking, did he ask you about this paragraph? Well technically, she’s saying put the whole thing to her and said is it all true and she said yes. So I don’t think we need to dismiss everything. She read the entire thing and told Mr. Benayon that it was true.

Mr. Bayliss: Well, that’s one interpretation, I guess. The other is, is she’s just making it up. So I’ll just carry on.

Crown: Your Honour, that

The Court: The, the other interpretation is that he asked her to read the entire affidavit to see if it was true rather than going through each paragraph and asking her if, at the end of the paragraph, whether that was true.

Crown: Yes.

Mr. Bayliss: I was pretty precise with the questioning Your Honour. I mean, I specifically put paragraphs to her and said did Mr. Benayon ask you if that was true and she agreed. So, you know, I mean I – I’m going to carry on, but I’m just a bit concerned about how much leeway we’re giving this witness. But anyway, I, I will, you know, it’s all for you to make the credibility assessment at the end of the day.

July 4, 2013: p. 27:

Q: But you must have thought that if you – because you realized that this is terrible, if its false it’s a horrible allegation to make against someone, right?

A: Yes, which is why …

Q: You would …

A: … I wouldn’t just make it up.

Q: Right. You understand that you can ruin someone’s life by making this sort of allegation, right?

A: Yes, Again …

Q: You un…

A: … which is why I wouldn’t make it up.

Q: Yeah, okay. Well, you can say that as many times as you want. But you agree with me, right, that you, you realized that it’s a big deal to make this kind of an allegation against someone, right?

A: Yes.

The Law

[98] The law with respect to reasonable apprehension of bias allegations was set out in the Supreme Court of Canada judgment in R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484 as follows:

31 The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369. Though he wrote dissenting reasons, de Grandpré J.'s articulation of the test for bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: [citations omitted]. De Grandpré J. stated, at pp. 394-95:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".

32 … Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges "are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances": [citation omitted] The presumption of impartiality carries considerable weight, for [citations omitted] "the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea". Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect: [citation omitted].

33 Notwithstanding the strong presumption of impartiality that applies to judges, they will nevertheless be held to certain stringent standards regarding bias -- "a reasonable apprehension that the judge might not act in an entirely impartial manner is ground for disqualification": [citation omitted].

[99] The Court of Appeal has emphasized that the impugned conduct must be assessed in light of the whole trial proceedings and all other portions of the judgment: R. v. A.G. (1998), 1998 7189 (ON CA), 130 C.C.C. (3d) 30, aff’d 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 42.

[100] While allegations of bias or reasonable apprehension of bias are most frequently based on mid-trial interjections by the trial judge, comments during submissions at the end of the evidence, in the reasons for judgment, during the sentencing submissions or in the reasons for sentence can be relied upon to support the allegations: A.G., at para. 50; R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161, (C.A.), at paras. 94 and 98. The comments after trial can reflect on the manner in which the trial judge approached the triable issues during the trial and show that his or her neutrality was probably compromised while deciding the case: Brown, at para. 101. This analysis does not necessarily involve “reasoning back.”

[101] The approach of appellate courts is illustrated in A.G. After finding that defence counsel had no good faith basis for questioning the complainant as he did, the trial judge characterized counsel’s conduct as “shocking and outrageous;” only calculated to embarrass the witness. He continued, “You know, Bonzo the chimp would know that people go to doctors for counselling as well as medical treatment.”

[102] The Court of Appeal found the trial judge accurately described the nature of the questioning but concluded the reference to “Bonzo the chimp” was “uncalled for and could not be justified.” After what the Court of Appeal characterized as further “unskillful” cross-examination on the same issue, the trial judge said, “… I can’t believe you’re that dumb that you can’t imagine why she went to the doctor.” The reference to counsel being “dumb” was uncalled for and could not be justified.

[103] During sentencing submissions, counsel told the trial judge that there was at least the possibility the accused in the non-jury trial had been improperly convicted. The trial judge told counsel not to be ridiculous and that the submission was most improper. The Court of Appeal found defence counsel’s advocacy “clumsy” and unhelpful and found the judge’s choice of words “unfortunate.” The conviction was upheld.

[104] As the bases upon which this ground of appeal are advanced involve the role of defence counsel, the scope of cross-examination, the judge’s duties during the trial and the content of reasons for judgment, examining this ground requires a brief examination of those areas to place the analysis in context.

[105] Turning first to the role of defence counsel, in R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481 (C.A.) at paras. 83 and 84, Rosenberg J.A. held:

84 It is important that everyone, including the courts, encourage civility both inside and outside the courtroom. Professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a client and is as important in the criminal and quasi-criminal context as in the civil context … Counsel are required to conduct themselves professionally as part of their duty to the court, to the administration of justice generally and to their clients …

85 Nothing said here is inconsistent with or would in any way impede counsel from the fierce and fearless pursuit of a client's interests in a criminal or quasi-criminal case. Zealous advocacy on behalf of a client, to advance the client's case and protect that client's rights, is a cornerstone of our adversary system. It is "a mark of professionalism for a lawyer to firmly protect and pursue the legitimate interests of his or her client".² As G. Arthur Martin said, "The existence of a strong, vigorous and responsible Defence Bar is essential in a free Society" [emphasis added]. Counsel have a responsibility to the administration of justice, and as officers of the court, they have a duty to act with integrity, a duty that requires civil conduct. [Footnotes omitted]

[106] “Functioning as a trial counsel necessitates the assumption of the most onerous responsibilities:” R. v Newman (1993), 1993 8592 (ON CA), 12 O.R. (3d) 481 (C.A.), at para. 25.

[107] Cross-examination is the mainstay of our adversarial system. It is the device we use to get at the truth: R. v. Trieu (2005), 2005 7884 (ON CA), 74 O.R. (3d) 481 (C.A.), at para. 94. It is “the ultimate means of demonstrating truth and of testing veracity:” R. v. Osolin (1993), 1993 54 (SCC), 86 C.C.C. (3d) 481 (S.C.C.) at p. 517.

[108] Cross-examinations have to be suited to the issues in the trial, the witnesses and counsel’s style. There is no cut-and-paste, one style fits all of cross-examinations. (Earl J. Levy, Q.C., Examination of Witnesses in Criminal Cases, Fourth Edition, Carswell, 1999, Chapter 6) The manner in which counsel cross-examines is often a function of counsel’s personality and experience. It should be witness-specific. Some cross-examinations are confrontational and accusatory; others involve friendly persuasion, seeing how far the witness can be persuaded to assist the defence or Crown. Others are cross.

[109] Provided the cross-examination relates to relevant issues and is not repetitive, prolix, abusive or unfair it is a proper cross-examination. That other counsel, the trial judge or appellate judges would have conducted the same cross-examination differently, is not the test.

[110] Counsel is often in a better position than the trial judge to determine what areas of a witness’ testimony must be explored or tested: R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont.C.A.), at p. 235. Our adversarial system accords a high degree of deference to the tactical decision of counsel: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 59. Trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel: R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at paras. 36-37.

[111] Indeed,

… counsel will generally be in a better position to assess the wisdom, in light of their overall trial strategy, of a particular tactical decision than is the trial judge. By contrast, trial judges are expected to be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel, the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocate for one party. S.G.T., at para. 59.

[112] To give substance to the role of counsel in our adversarial system, that role should not be denigrated by substituting judicial tactical decisions for counsel’s, just because the appellate court has the benefit of hindsight: Newman, at para. 25.

[113] Trial judges in criminal trials have a very demanding role. This includes the responsibility to control the decorum of the participants in a trial: Brown, at para. 71. At times it requires a delicate balancing of the interests he or she is required to protect: R. v. Valley, (1986), 1986 4609 (ON CA), 26 C.C.C.(3d) 207 (Ont.C.A.), at p. 230.

[114] The trial judge has a wide discretion to control the trial and to protect witnesses, particularly young witnesses, from harassment and cross-examination that is unduly repetitive or unfair: A.G. That broad discretion to control the examination of witnesses includes the right and even duty to stop a cross-examination that is repetitive, prolix or abusive: R. v. Peazer (2005), 2005 30057 (ON CA), 200 C.C.C. (3d) 1 (Ont.C.A.), at para. 23.

[115] It is expected that judges “maintain firm control of court proceedings and ensure they are conducted in an orderly, efficient and civil manner by counsel and others engaged in the process.” In addition, advocates are entitled to expect that judges will not engage in unjustified reprimands of counsel, insulting or improper remarks about litigants and witnesses, statements evidencing prejudgment and intemperate or impatient behavior:” Principles of Civility for Advocates, the Advocates’ Society, cited with approval in Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, (2010), 265 O.A.C. 247, (Chippewas) at paras. 235 and 241.

[116] Judges should lead by example in promoting civil behavior by those involved in the court process. Judges cannot expect lawyers to behave civilly if they do not themselves: Chippewas, at para. 240.

[117] There are no judicial cookie-cutters. Some judges are more interventionist than others. Different judges take different approaches as to when to intervene. However, as the Court of Appeal has held where the cross-examination becomes abusive or unfair the trial judge has a duty to curtail the cross-examination. Silence is not an option.

[118] A trial judge must remain neutral throughout the trial. Indeed, jurors are instructed that they must “consider the evidence and make your decision without sympathy, prejudice or fear:” Watt’s Manual of Criminal Jury Instructions, Final 4.

[119] While after the findings of fact are made, those findings may lead to negative feelings towards the witnesses, if inappropriate considerations regarding the defence tactics, the personality of the witnesses, of other irrelevant considerations impacted on the decision, the accused has not had a fair trial.

[120] Finally, trial judges’ reasons for judgment tell the parties affected why the decision was made, provide public accountability and permit effective appellate review. Reasons also ensure “fair and accurate decision making.” R. v. R.E.M., 2008 SCC 25, [2008] 2 S.C.R. 3, at paras. 11 and 12.

[121] Assessing credibility is not a science. It is a difficult and delicate matter that does not always lend itself to precise and complete verbalization. Articulating why one witness was believed and another disbelieved may be difficult. The exercise may not be purely intellectual and may involve factors that are difficult to verbalize. For a judge to embellish why a particular witness’s evidence is rejected might involve the judge saying unflattering things about the witness. Judges may wish to spare a witness the indignity of adding comments about his or her demeanor: R.E.M., at paras. 48 and 49.

[122] The Court of Appeal provided the criteria for an appellant to succeed on an uneven scrutiny ground of appeal in R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 as follows at para. 59:

This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge's credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the Appellant and the Complainant.

[123] Not all inconsistencies and problems with a witness’s evidence are of equal significance. The test for uneven scrutiny is whether the appellant has shown uneven treatment of inconsistencies or other problems of equal gravity.

[124] Just as there are many styles and approaches to cross-examination, judges may express their conclusions in a variety of ways: R. v. Saunders, [2002] O.J. No. 1521, (S.C.J.) at para. 8. There may be occasions where judges attempt to “sugar-coat” their reasons for rejecting a witness, while another judge would provide a blunter assessment. Some express their findings more colourfully than others. Provided the comments do not raise a reasonable apprehension of bias because they bring into question the trier of fact’s impartiality, judges should be free to express their opinions as they wish.

[125] In R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont.C.A.), the Court of Appeal addressed comments by a trial judge that have some similarity to the Reasons here. The trial judge referred to a defence witness as “one of the most biased, partisan witnesses” he had encountered in two decades of litigation. The witness slanted his evidence in favour of the accused, was less than independent; was an advocate for the accused, not a witness, exaggerated his evidence to the extreme and was argumentative with counsel. His Honour concluded the witness was “possibly one of the worst witnesses I have ever seen” and “gave him not one ounce of credibility.”

[126] After finding that there was little controversy about the witness’ evidence, the Court of Appeal found that the trial judge’s “outburst” could not be justified on that record at para. 40:

This is a small community and the witness is a teacher at the school. While the trial judge was not obliged to accept his evidence, it is a rare occasion indeed where this type of public condemnation is merited. It gives the impression that he was sending a message to any supporter of the appellant that if they testified they exposed themselves to this pejorative treatment. It also gives the court further reason to believe that the trial judge may have applied one standard of scrutiny to the evidence led by the Crown and another to the evidence of the defence witness.

[127] While that outburst was not justified, the Court did not preclude similar comments in every case, noting that it would be a rare case where such rhetoric was justified.

Analysis

[128] The reasonable apprehension of bias ground of appeal is based upon the trial judge’s comments about his characterizations of the cross-examination, the appellant’s nationality, and findings in relation to the appellant, his girlfriend and the complainant. Even ill-advised, inappropriate, unjustified and/or otherwise improper comments of trial judges do not in themselves establish a reasonable apprehension of bias. The questions are:

1. Has the appellant shown on a balance of probabilities that his trial was unfair because the comments compromised His Honour’s neutrality by infecting his analysis of the evidence? Did one or more of his views result in the trial judge approaching his task with prejudice against the appellant and/or sympathy for the complainant?

2. Has the appellant shown that the trial judge’s readily apparent contempt for counsel’s cross-examination, the appellant and/or his girlfriend probably play an improper role in his credibility findings? Did they carry over to his assessment of the appellant or the defence position? (A.G., at para. 101)

3. Has the appellant shown that in light of His Honour’s comments, failure to intervene and/or permit counsel to address the issue, that a reasonably right minded person who had been present throughout the trial would consider that he did not have a fair trial? (R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont.C.A.), at para. 232.

4. Has the appellant shown that the trial judge applied a different level of scrutiny to the Crown and defence evidence?

[129] I turn next to the areas in which the appellant submits the reasonable apprehension of bias emerge before returning to the questions.

The Cross-Examination

[130] Defending an accused charged with a sexual offence involving a young complainant can be amongst the most challenging tasks for defence counsel. This is particularly so where innocent explanation, mistake or misinterpretation of the events is not a viable defence. Where the client’s instructions are that there was never any sexual contact, counsel is required to approach the case on that basis. In this situation, counsel has no option but to proceed on the basis the complaint was fabricated. In challenging a witness’s credibility, it is appropriate to cross-examine the witness on other instances where he or she has fabricated or exaggerated subject to the trial judge’s discretion to prevent questioning not apt to assist in the resolution of the disputed issues.

[131] Here, defence counsel’s instructions included that all or least some of the suicide attempts even occurred, that the number of suicide attempts was exaggerated. In submissions at the end of the trial, he argued that it was preposterous to suggest that suicide attempts took place in the home where she lived with her mother and sister without their knowledge. While a sensitive topic, it cannot be said that counsel acted improperly in pursuing the questioning in that area. Indeed, the trial judge permitted some cross-examination in this area.

[132] The trial judge in three parts of his 32 page reasons, addressed defence counsel’s cross-examination of the complainant. While once noting that counsel was “skillful and aggressive,” he described the questioning as a “prolonged and brutal attack,” “a full scale attack on a disturbed and vulnerable teenager,” and as “no hold barred.” He found counsel had mocked and belittled the witness, “virtually scoffing” at the number of times she said she tried to kill herself. One His Honour’s findings it was an offensive cross-examination. More importantly, mocking, belittling and virtually scoffing at a vulnerable witness would be unfair to the witness.

[133] This area involves three issues: first, the trial judge’s characterizations of the cross-examinations; second, the relevance of the fact the trial judge did not intervene to stop the cross-examination; and most importantly, three, whether the trial judge’s views improperly infected his credibility analysis or his assessment of the defence.

[134] With respect to the last point, there is no dispute that the trial judge can appropriately consider how a witness withstood cross-examination in assessing his or her credibility. What trial judges cannot do is let his or her contempt for defence counsel’s manner of cross-examination, be a factor that in itself enhances the witness’s credibility, causes the trial judge to be improperly sympathetic to the witnesses so as to enhance his or her credibility or to let their views of the defence tactics prejudice him or her against the accused’s credibility or the defence.

[135] After reading the complainant’s s. 715.1 statement and the balance of her evidence, it became apparent that assessing this ground of appeal was most difficult, from only reading the transcripts. The words on the page do not show the questioner’s tone, the manner in which the questions were asked, nor counsel’s or the witness’s reactions to the questions or answers, facial expressions, demeanor or body language during the questioning. As was apparent from my questions of Mr. Chiera during his submissions, reading the entire cross-examination including those portions upon which the Crown relied in justification of the trial judge’s characterizations did not support the trial judge’s conclusions.

[136] Listening to the Digital Audio Recording of the cross-examination would address some of the areas that are not apparent from the transcript. Counsel were contacted and both agreed that I could listen to the cross-examination. Counsel also advised that unless further submissions were required after I listened to the recordings, neither sought an opportunity to make further submissions. Mr. Halfyard said the recording would speak for itself. After listening to the recording counsel were given an outline of my tentative conclusions after listening to the recording and neither wished to make further submissions.

[137] Listening to roughly four hours and ten minutes of cross examination was informative, to a point. It permitted an assessment of counsel’s pace, tone of voice, his manner of asking the questions and verbal reactions to some of the answers. It also permitted me to hear the witness’s pace, tone of voice, manner of answering the questions and verbal reactions to some of the questions. It did not permit an examination of either’s facial expressions, demeanor, body language, or other nuances of the cross-examination. All would have been apparent to the trial judge.

[138] Based on reading the transcript and listening to the recording, counsel conducted an aggressive, vigorous and thorough cross-examination. His cross-examination was slow-paced and gave the witness ample time to answer the questions. He did not interrupt the witness. Counsel frequently asked the witness to repeat answers as he did not hear the response.

[139] Counsel directly challenged the witness asserting that she was ruining an innocent man’s life, once suggesting that she had thrown him under the bus with her false accusations. Each time she said that she knew the allegations were serious, that she would not ruin someone’s life. Once she said that she was not heartless to the point that she would ruin someone’s life over Facebook. She had more conscience than that. She was not some horrible kid that was going to make something up. Counsel suggested that was exactly the kind of kid she was. She denied that assertion.

[140] At times counsel was incredulous such as when he was asking the witness about her father’s reaction to her signing the affidavit. She said that while he was not happy, he understood she did it because of her mother. The witness did not recall what her father had said. Counsel’s voice could have reflected that he was incredulous after her answer and asked if she could only remember her side of the conversation, and that it was a little over a year ago yet she could not remember how her father reacted or what he said. Similarly, when the witness could only remember the timing of her second suicide attempt at her mothers, counsel asked, “You’ve forgotten one of the events of hanging at your mother’s home?” At times counsel’s voice was such that he appeared to be somewhat sarcastic or dismissive of the witness.

[141] Counsel suggested the witness was smirking at one time and laughing at another. Those were proper areas for questions: Brown, at para. 66.

[142] There were several sarcastic editorial comments or critiques about the witness’s answers. These were inappropriate and would have warranted intervention by the trial judge. R. v. Singh, 2010 ONCA 808, [2010] O.J. No. 5622, at para. 42. For example, counsel asked if she knew what the police would do if they thought she had made a false allegation. She said that they did not think she had. Counsel told her that she was not answering his question and that he knew she wanted to get her position on the record. When counsel returned to his assertion that she could ruin a person’s life with this sort of allegation and she said that is why she would not make it up, he said, “Well you can say that as many times as you want.”

[143] The complainant was generally calm and composed. Her answers were generally responsive. However, while not indicated in the transcript, on three or four occasions the witness could be heard crying or sobbing. The most prominent time was when she was being questioned about her suicide attempts. Some background will place the questioning in context.

[144] After the ruling in relation to the witness’s diagnoses, counsel asked the complainant if she had ever tried to commit suicide. She said that she had seven times within the previous three years. When asked what she had done, the witness said she had tried to hang herself. When counsel asked if she could give a little more detail, Crown counsel objected noting that “asking her the bare bones” would be enough. It was unfair to make her explain the steps she took. Trial counsel said he did not know why it was unfair. His Honour noted that it was a very sensitive issue and that counsel did not need to go into the details. When counsel asked if he was precluded from further questions on the issue, His Honour said he would not permit questions on how she tried to hang herself. No appeal is taken in relation to that ruling.

[145] After eliciting that the witness had tried to overdose once and slit her wrists once, the witness said that for the majority of suicide attempts, about five, she tried to hang herself. Defence counsel then asked that the witness leave the courtroom and told the trial judge that while he agreed that it was a sensitive area, to preclude him from exploring whether the assertions were true or not, was to prevent him from doing what he was trying to do. Counsel did not know what others were going to say about it.

[146] With the complainant out of the courtroom, the trial judge said that counsel could get into the circumstances surrounding the suicide attempts but he did not want the witness to re-live putting the rope around her neck and tying it to the beam in the basement or something like that. Counsel could establish what times it was and things like that.

[147] Trial counsel said the problem was that “we’re kind of assuming the truth of what she’s saying and coming to a conclusion about whether we should ask about it. That was putting the cart before the horse”. He continued, “… just on the surface, one would have to be extraordinarily lucky to hang oneself five times and not succeed at least once.” It was a “pretty dramatic statement and dramatic coincidence that the young lady is still with us.” It was a hallmark of un-believability. He was trying to figure out if the things happened. If they did not happen then there would be no trauma involved in relating something that did not happen. Having heard the trial judge’s comments, counsel said he would do his best to “skirt around the most sensitive areas.”

[148] Later in the cross-examination, counsel asked how it was that the witness had attempted to hang herself and had no injuries. She said her pain tolerance and instincts to breathe kicked in. Later, he asked what he phrased as a general question about all of these events, “How was it that she attempted to hang herself five times and never succeeded?” The Crown objected and the trial judge told counsel that she had answered that question. Counsel said he had not asked her about all five attempts. He just asked her about one.

[149] Throughout the question in this area, for roughly eight minutes the complainant was crying and sobbing. After the last question Crown counsel asked for a break and to be permitted to speak to the complainant noting that she would not speak to her about her evidence. Defence counsel objected to the Crown speaking to the witness but said he had no problem if she were permitted to speak to her father, step-mother or the victim support person. The Crown agreed with that suggestion.

[150] While the trial judge regarded the cross-examination as distasteful, he found the portion in regards to the witness’s emotional and psychological problems “most distasteful.” The first two aspects of the area of cross-examination have already been examined: the third party records application and the start of the cross-examination regarding the diagnoses. After ruling that the witness’s conversation with the therapist was hearsay, His Honour said that he would allow “limited questioning with respect to what she had posted online.”

[151] Dealing first with the trial judge’s characterizations of the cross-examination, there is no dispute that the complainant, although 19 years old when she testified, was a vulnerable witness. In submissions, trial counsel described her as “a very disturbed young lady who lies constantly.” In closing submissions at trial counsel referred to her as “clearly a very troubled young lady.”

[152] The descriptions of the cross-examination are most unusual. During the appeal submissions Crown counsel submitted that it was not unusual to see brutal cross-examinations by defence counsel. When asked if there were any reported judgments where similar comments were noted, he was unable to provide any authorities with similar characterizations. That however is not determinative of this issue.

[153] From only reading and listening to the cross-examination, the characterization as brutal in the sense of being savagely or coarsely cruel, harsh or merciless[1] is not one that necessarily follows. However, the trial judge had the distinct advantage of seeing counsel and the witness, their facial expressions, body languages and other non-audible nuances of the cross-examination that are not discernable from reading and listening to the cross-examination. It is apparent that at times counsel appeared to be incredulous and/or dismissive of the witness’s answers. While those reactions are not necessarily inappropriate, if those expressions were accompanied by facial expression, body language or other nuances it could support a finding that counsel inappropriately virtually mocked or scoffed at the complainant. With a very troubled young witness, that could have resulted in at least a very harsh cross-examination.

[154] Turning next to the failure of the trial judge to intervene if the cross-examination was unfair, it is readily apparent that His Honour’s conclusions regarding the cross-examination were not after-the-fact findings. They must have been apparent during the trial. The Court of Appeal is clear that there is a duty to intervene when the questioning becomes unfair. On the trial judge’s findings the cross-examination was unfair.

[155] With respect to the most distasteful aspects of the cross-examination, the trial judge found the Instagram postings were a proper area for cross-examination, knew that trial counsel intended to cross-examine on the suicide attempts, and limited the scope of the cross-examination on those attempts. In addition, His Honour knew from counsel’s submissions with the complainant out of court before the cross-examination on the suicide attempts that counsel viewed the witness as extremely lucky to be alive if she had tried to hang herself five times. He knew counsel’s apparent view that a true suicide attempt would have left marks or resulted in the witness’s death.

[156] I agree with both counsel that based on his view of the cross-examination, the trial judge had a duty to intervene and stop the unfair questioning. I appreciate the delicate balance required including potential concerns in a non-jury trial should the judge intervene. He or she might be perceived siding with one side or the other. However, with respect to some aspects of the cross-examination, stopping the editorial comments and any gestures that may have been occurring would not have interfered with the cross-examination.

[157] Similarly, that His Honour did not raise his concerns in submissions is unfortunate. In her closing arguments at trial, the Crown did not suggest the cross-examination was unfair or brutal. She noted that it was “an extensive cross-examination” and as “a grueling cross-examination of excruciating minutia of everything she has ever done …”

[158] Clearly, a trial judge is not required to give an opportunity to address every conceivable issue of concern in submissions. Some arise after submissions, while preparing the reasons. However, given that the concerns had to arise during the trial and His Honour addressing his concerns in three areas of his reasons, counsel should have been given an opportunity to address the concerns.

The Reasons

[159] First, the trial judge’s comments about the appellant being Australian, crocodiles and tears were most inappropriate and totally unjustified. I agree with most of both counsels’ characterizations of the comments. This was not an oral judgment given from the bench immediately after oral submissions or a brief recess when the ‘judicial filter” may not have been working as well as one would want. His Honour reserved judgment and provided lengthy reasons for judgment.

[160] However, as the Court of Appeal has held, if a judgment contains sarcastic, ill-advised, intemperate or extremely harsh comments they have to be read in the context of the entire judgment and a determination made whether they were ill-advised, inappropriate or whether they also reflected a lack of the requisite neutrality by the trial judge.

[161] Second, no one could suggest that the trial judge “sugar-coated” his credibility findings. Nor could it be suggested that His Honour experienced the difficulty or reluctance identified in R.E.M., at para. 49. He had no problem embellishing why a particular witness’s evidence was rejected or adding negative comments in regards to the defence witnesses. Indeed, it is the nature of the trial judge’s findings that are advanced in support of the reasonable apprehension of bias argument, including that His Honour applied a different level of scrutiny to the defence and Crown evidence – that he was more forgiving of the problems with the complainant’s evidence as opposed to his treatment of the problems with the defence evidence.

[162] To summarize, in addition to the crocodile tears reference, the trial judge referred to the appellant’s evidence as being too detailed, noting that his recall of one of the incidents was given with “vivid exactitude” and “precision details” and in regards to a second given was eerily precise. Yet his remarkable clarity of memory was shaken to its foundation when he was shown to have lied when he said he had never spoken to the complainant’s lawyer.

[163] His Honour went out of his way to find fault with the appellant’s claim that he was an Olympic swimming coach. There appeared to be no dispute that he was qualified to coach up to and including at the Olympic level.

[164] With respect to the appellant’s girlfriend’s evidence, the trial judge found the witness was “somewhat deranged,” “unpleasant,” “utterly despicable,” and drew inferences what type of mother she was to the complainant.

[165] When dealing with the complainant’s evidence the trial judge did not find swearing a false affidavit of sufficient concern to negatively impact on her credibility. That she would sit on the appellant’s lap and hug him within days of him sexually assaulting her was not sufficient to raise concerns for her credibility. He found her evidence had a ring of truth to it. I was not “eroded or destroyed” by the cross-examination, indeed it was strengthened by her answers and grace “under fire.”

[166] In regards to the appellant’s evidence, while His Honour’s way of expressing his opinion that the appellant was trying to create sympathy by crying about a swimmer’s suicide was most inappropriate, the trial judge had the advantage to seeing and hearing the witness when he gave that evidence. While another judge may not have reached the conclusion the tears were less than sincere, it was open to His Honour to find, in effect, that it was an act. That there was “a dearth of evidence to support the appellant being actively involved in high level swimming coaching” was immaterial. Otherwise, it was open to His Honour to find that the appellant’s detailed evidence was inconsistent with forgetting a phone call with the complainant’s lawyer. There were reasonable bases upon which His Honour could reject the appellant’ evidence and find it did not raise a reasonable doubt, including the finding that he had lied under oath.

[167] As regards the appellant’s girlfriend’s evidence, the extent of the blunt criticism was uncalled for and could not be justified at least in regards to her being “somewhat deranged.” It was unnecessarily insulting and unjustified. While at first blush, the trial judge’s conclusions regarding her yelling and screaming, being unpleasant and what kind of parent she was were irrelevant to her credibility (R. v. Cuddy, [1998] O.J. No. 3914 (C.A.)), her evidence and character were relevant to the affidavit her daughter signed. The complainant said it was her mother’s constant badgering for two years that led her to sign the affidavit. In assessing her explanation for swearing a false affidavit after receiving independent legal advice, the findings, while blunt, could be viewed as essential given the importance of the affidavit.

[168] That the trial judge could find the complainant was vulnerable and a troubled young lady is not controversial. She was. His Honour provided an analysis of her evidence and the potential flaws in it. That another judge would not necessarily have taken that view is not determinative.

Conclusion

[169] The appellant has the onus of establishing the Reasons for Judgment reflected a reasonable apprehension of bias: R. v. Nero, 2016 ONCA 160 at para. 31.

[170] Before returning the questions posed earlier in relation to the reasonable apprehension of bias ground of appeal, while the appellant asserted that the trial judge’s conduct during the trial exhibited or contributed to a reasonable apprehension of bias, there is no evidence to support that submission. His Honour did not say or do anything during the trial that created the appearance of a mindset inconsistent with the duty to be impartial. The issue is whether his Reasons for Judgment reflect a reasonable basis to conclude that the appellant had an unfair trial.

[171] For convenience, I will repeat the questions posed earlier:

1. Has the appellant shown on a balance of probabilities that his trial was unfair because the comments compromised His Honour’s neutrality by infecting his analysis of the evidence? Did one or more of those views result in the trial judge approaching his task with prejudice against the appellant and/or sympathy for the complainant?

2. Has the appellant shown that the trial judge’s readily apparent contempt for counsel’s cross-examination, the appellant and/or his girlfriend probably play an improper role in his credibility findings? Did they carry over to his assessment of the appellant or the defence position? (A.G., at para. 101)

3. Has the appellant shown that in light of His Honour’s comments, failure to intervene and/or permit counsel to address the issue, that a reasonably right minded person who had been present throughout the trial would consider that he did not have a fair trial? (R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont.C.A.), at para. 232.

4. Has the appellant shown that the trial judge applied a different level of scrutiny to the Crown and defence evidence?

[172] Having regard to the strong presumption of impartiality, the considerable deference by appellate courts and the need for convincing evidence upon which to succeed on this ground of appeal, the appellant has not persuaded me that there was a reasonable apprehension of bias. He has not persuaded me that it is more likely than not that the reasonable and right-minded person who sat and watched the entire trial including the cross-examination of the complainant and the defence evidence, viewing the matter realistically and practically would conclude the trial judge did not decide the case fairly.

[173] With regards to the cross-examination and reasons, some of the comments and descriptions were ill-advised, some were clearly unjustified and improper, but a review of the trial transcript does not support a finding of reasonable apprehension of bias or that the trial judge was prejudiced against the appellant, his counsel or the defence, that he was improperly sympathetic to the complainant to the extent that it improperly influenced his decision or that he applied a different level of scrutiny.

[174] With respect to the cross-examination and the assessment of the witnesses’ credibility, His Honour had the advantage of seeing and hearing the evidence. He could properly look at the nature of the cross-examination and properly conclude that the witness had withstood a vigorous cross-examination, a factor that enhances her credibility.

[175] As regards the appellant’s evidence, that there was a “dearth of evidence to support [the appellant] being actively involved in high level swimming coaching” was irrelevant as his coaching abilities were not in issue, His Honour otherwise provided a reasonable basis upon which he could reject the appellant’s evidence and find it did not raise a reasonable doubt. While another judge might not have concluded that forgetting a phone call a couple of years earlier destroyed his asserted detailed memory and triggered examples of his failing memory, it was open to His Honour to do so. While the descriptions of the appellant’s detailed memory could be viewed as sarcastic, I am not persuaded that viewed alone or in conjunction with the other issues in this ground, that they reflect infected reasoning.

[176] Of note, His Honour found that the appellant had lied when he testified he had never spoken with the complainant’s counsel. That was shown to be false. The trial judge heard and rejected his explanation that he had forgotten about the call. Once it was determined that a witness lied under oath that has the potential to adversely impact on the witness’s credibility. That it is not always so, is illustrated by the trial judge’s acceptance of the complainant’s evidence in regards to her false affidavit.

[177] Similarly, while the trial judge went too far in his characterization of the appellant’s girlfriend as “somewhat deranged,” in the context of the entire reasons and the importance of the witness’s character, I am not persuaded that the comment alone or when considered with the other problematic areas of the reasons reflect a reasonable apprehension of bias or that the appellant’s trial was unfair.

[178] No doubt the trial judge was forgiving of the complainant’s evidence. However, it is only where the reasons reflect an uneven scrutiny or that the trier of fact was improperly sympathetic to the complainant that concerns arise. There was no issue that she was troubled and vulnerable. Given the credibility findings that were open to His Honour, I am not persuaded that the manner in which His Honour expressed those views reflects a reasonable apprehension of bias or uneven scrutiny.

[179] I have also considered the trial judge’s comments that this was one of the most difficult judgments he had written. He also said:

122 At first blush it seems to be a very shaky case. Yet, when examining the evidence of all the witnesses as a whole and applying common sense to the totality of the evidence, I am left with the firm opinion that the Crown has proven these allegations beyond a reasonable doubt.

[180] Those comments are at least open to the interpretation that the “shaky case” view was His Honour’s opinion at the conclusion of the evidence and submissions, before he prepared his reasons. It was as a result of his analysis of all the evidence that he reached the blunt findings he did; not that his blunt opinions improperly influenced his analysis. On that view, the trial judge’s analysis was not infected by views he formed during the trial. Rather, the strong views emerged during the preparation of the reasons, not before when they could have infected the analysis.

[181] While His Honour should have intervened in the cross-examination on his analysis of it and he should have given counsel the opportunity to address his concerns in submissions, I am not persuaded that either results in or contributes to a reasonable apprehension of bias.

[182] A trial judge is required to maintain neutrality throughout the trial including when assessing the witnesses’ evidence. From reading the entire reasons and listening to the recordings, I am not persuaded His Honour’s neutrality was compromised. Nor am I persuaded that the trial judge was prejudiced against the appellant, his girlfriend, or defence counsel as a result of the cross-examination so that it infected his reasoning; nor that he was improperly sympathetic to the complainant.

[183] At the end of the trial when the findings of credibility and fact are made, those findings may directly or indirectly impact on the character of the witnesses. While the trial judge’s language was blunt, forceful and on occasion went beyond what was appropriate or justified, I am not persuaded the appellant has shown there was uneven scrutiny or that His Honour’s very strongly held opinions of the cross-examination, the appellant and/or his girlfriend improperly influenced his decision or resulted in uneven scrutiny.

[184] As the Court of Appeal held, establishing uneven scrutiny is a difficult ground upon which to succeed. This type of forceful and, on occasion, inappropriate language, may invite uneven scrutiny and reasonable apprehension of bias arguments: see Gostick. However, when the reasons are read in their entirety, I am not persuaded that there was uneven scrutiny.

Did the trial judge misapprehend the evidence concerning the complainant’s suicide attempts in concluding a portion of the cross-examination was most distasteful?

[185] For ease of reference, I will repeat what His Honour found in his Reasons for Judgment on this issue:

164. The part of this trial that was most distasteful to me was the evidence of the complainant’s emotional and psychological problems. Her Instagram account showed her having carved words on her arm, being in a hospital and being challenged on how often she had attempted to commit suicide and why, if she had tried to hang herself so many times, that she was not successful. She satisfactorily explained all of these attacks in cross-examination. The fact that she tried to hang herself several times, she stated that she had a low pain threshold and would abort the attempt. She was then cross-examined as to why she did not have any marks on her neck. Why did she just go to school the next day? Why did not anyone notice her physical marks or low mood? The complainant answered all of these questions satisfactorily and honestly, in my opinion.

165. Mr. Bayliss seems to have missed the point that a troubled teen can attempt suicide by briefly putting a ligature around their neck and within seconds abandoning the attempt. That does not make it any less a suicide attempt. It does not necessarily leave marks. The fact that she does not cut deep enough does not make it any less a suicide attempt. The fact that if she only takes 6 over the counter pills does not make it less of a suicide attempt at the time in her mind. It makes it fortunately, an unsuccessful suicide attempt or a half-hearted one. This was not to be mocked or belittled as it was to show that she had no credibility. That reasoning would suggest that if only she had succeeded in killing herself would she be credible.

The Positions of Counsel

[186] The appellant submits that the trial judge’s finding that the cross-examination was distasteful was based on a misunderstanding of the relevance of the cross-examination. In the result, His Honour failed to give effect to the impact of the questioning on the complainant’s credibility. The reasons illustrate two fundamental misapprehensions. The complainant initially testified that her suicide attempts were private, that is why no one knew about them. However, her Instagram account demonstrated that she was very public about this information. There is nothing in the reasons from which it could be inferred that the trial judge was alert to this aspect of the evidence.

[187] Second, His Honour ruled that defence counsel could not get into the details of the suicide attempt by hanging, finding it was a “very sensitive issue and I don’t think she needs to go into the details of the manner of the attempts.” In light of that ruling, it is difficult to say how the defence missed the point that a suicide attempt could be trivial or half-hearted. The defence was not permitted to go into how trivial or serious the attempts were.

[188] In addition, the trial judge appears to have ignored that the complainant said that the hangings were serious enough to leave marks on her neck although no one in her family or school saw them because she hid them. She said that she always had allergic reactions that manifested on her neck so it always looked as if she had marks on her neck and that fellow cheerleaders at university saw bruising from the two attempts while she was at university. A finding that this area of cross-examination was distasteful to the trial judge could only be based on a misunderstanding of the evidence – a serious error of law.

[189] The Crown submits that the cross-examination in this area was on a collateral matter. His Honour permitted limited questioning in this area through cross-examination which elicited contradictions. It was for the trial judge to determine the relevance of the collateral attack.

The Law

[190] In R. v. Vant, 2015 ONCA 481 at para. 108 the Court of Appeal held:

A misapprehension of evidence includes a failure to consider relevant evidence, a mistake about the substance of evidence and a failure to give proper effect to evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at para. 83. Not every misapprehension of evidence will vitiate a finding of guilt. The nature and extent of the alleged misapprehension and its significance to the verdict rendered requires consideration in light of the fundamental principle that a verdict be based exclusively on the evidence adduced at trial: Morrissey, at para. 93.

[191] In R. v. Abdullahi, 2015 ONCA 549 at para. 6 the Court put it this way:

In deciding whether a misapprehension of the evidence requires that a conviction be quashed, the court must test the misapprehension against a stringent standard. Misapprehensions of the evidence merit reversal if they are material in that they play an essential role in the reasoning process that led to the conviction. In determining the materiality of a misapprehension, the court will have regard to the entirety of the reasons and the evidence as a whole: R. v. Lohrer, 2004 SCC 80.

Analysis

[192] First, the collateral fact rule was not invoked in this area as the appellant did not seek to introduce contradictions with the complainant’s evidence from other sources. The contradictions emerged in cross-examination. Other than as noted earlier, Crown counsel at trial did not object to the questioning and never objected on the basis that the evidence was collateral. Neither the trial judge nor the trial Crown considered these areas to be such that they were not apt to assist in the resolution of issues in dispute.

[193] As regards the contradiction between keeping the suicide attempts private and the complainant’s social media postings, the witness said she had told no one about slashing her writs because she “didn’t feel the need to advertise it. It wasn’t really something [she] was all that proud about.” She did not really want anyone to know.

[194] The cross-examination continued:

Q: Does that apply to all of your suicide attempts that they were all personal matters that you didn’t want to advertise?

A: For the most part of it, I told after the fact, like my step mom and my dad know.

Q: Are they the only ones?

A: Well, the doctors know.

Q: And that’s it?

A: Yes.

[195] With respect to her Instagram postings, the complainant said that she started using Instagram at the end of 2012 for sharing pictures with her friends. A few of her friends followed her on Instagram, no more than eighty. She did not have to invite them as they could search hash tags and find her. Unless “you’re privatized,” then they have to ask permission to follow you. Otherwise, it was open to anyone. She was asked if her Instagram was privatized and said that it was not. It was wide open for anyone who cared to go online to look at it.

[196] The witness was then shown her Instagram postings for the first time. She said that they were from when she was at university in September to October, 2012. They were from a different Instagram account. One was completely public while the one from which the postings were taken was private. She had not mentioned the second account because counsel had not asked her. When she said her Instagram account was not privatized, she was not thinking of the public one.

[197] Accessing the privatized account involved searching the hash tags, clicking on it and clicking on her user name that takes the person to her picture. They would have to request to follow. She would have to approve if they are going to follow her. The complainant had 332 followers on her private account. She explained that she used it as a place to vent as she was at a really bad place, having been through a lot with her mother, the case and the appellant had returned to Canada. She was terrified. She was not speaking to her mother.

[198] No one knew who she was on the private account. Her name did not appear. While her picture was there next to “It’s a Time to Rebel,” it was not advertised as her. No one really knew about it. It was a place to get everything out. She knew “maybe one or two” of the 332 followers. Complete strangers could access the account with full sized photographs of herself if she permitted them to do so.

[199] With regards to the nature of the injuries from the suicide attempts the complainant said that she required no medical attention after she slashed her wrists with a razor at her mother’s home. She started cutting in October of 2010 and it was shortly after that when she tried “cutting a little deeper to end [her] life.” No one at school or home noticed the marks as she was pretty good at hiding them.

[200] When she tried to overdose, she did not go to hospital. She took the pills at night, woke up in the morning and went to school. No one noticed anything was wrong with her.

[201] With respect to injuries or marks from the attempts to hang herself, the complainant said that after both attempts at university fellow cheerleaders noticed bruising on her neck although she had tried to hide them. In regards to the two attempts by hanging at her mother’s residence, neither her mother nor sister noticed anything although she had marks on her neck. No one at school noticed because she used to have marks on her neck as she had allergic reactions all the time. It always looked like she had marks.

[202] After the second suicide attempt by hanging at her mother’s, she said there were no injuries. Prefacing his question that he did not want to get into too much detail, counsel asked how it was that she attempted to hang herself and had no injuries at all? The complainant said, “Again, as I said before, my pain tolerance and then, my instinct to breath kicked in.” She said that the last attempt to hang herself was at her father’s house and that she received no injuries.

[203] Dealing first with the complainant’s evidence that she kept her suicide attempts private, yet posted them publicly, the trial judge did refer to the postings when summarizing the evidence after finding counsel “virtually scoffed at her testimony that she had tried to kill herself the number of times that she had said that she had and had not been successful”. His Honour found defence counsel had “pointed out the social media sites that she had that contained information that seemed to contradict this evidence” (at para. 40 of the Reasons). That was the only reference to the Instagram postings and does not address the privacy claims while posting details publicly.

[204] The trial judge would also have had to consider that the complainant’s name was not on the privatized account although her picture was there. She explained why she had not mentioned it when first asked and also her state of mind at the time. According to the complainant, the reason the Instagram account mentioned four attempts when there were six was that the two were after the postings. That would mean the ones to which she was referring “publicly” had occurred many months earlier.

[205] With regards to counsel missing the point that a suicide attempt can be half-hearted or trivial but still be a suicide attempt and being prevented from cross-examining on the details, His Honour did not mention that the complainant said that she had marks and bruises from at least some of the attempts to hang herself. However, she was asked in relation to one or two of the attempts and said that she had no injuries. Accordingly, the trial judge was correct in relation to parts of the questioning. That he did not mention the marks or bruising does not establish or contribute to a misapprehension of the evidence.

[206] Counsel obtained the reasons the attempts at hanging were terminated from the complainant - her instinct to breath kicked in. In relation to the wrist slashing, she said that she had a low threshold of pain and could not cut deeper. With respect to the overdose, counsel brought out that she had taken six pills.

[207] I am not persuaded, the trial judge misapprehended the evidence in this area so as to warrant a new trial. The appellant frames this issue as a misapprehension of the facts that led to his conclusion the cross-examination was distasteful. As noted earlier, I am unable to find that His Honour improperly used his views of the cross-examination in assessing the witnesses’ credibility. On this basis, I am not persuaded that any misapprehension played an essential role in the trial judge’s reasoning process. A stringent standard applies in this area. That a cross-examination was distasteful does not mean it played a role in assessing the witnesses’ credibility. It was the manner of questioning and area dwelled on that His Honour found objectionable.

[208] As regards counsel’s view of what a suicide attempt involves, it appeared as though counsel believed injuries were required and that a suicide attempt was one that could have succeeded. He made comments to that effect during submissions in regards to the evidence. It is unfortunate that His Honour’s disagreement with the those views was not raised at that time or in final submissions.

[209] However, I am not persuaded the trial judge’s ruling preventing counsel from asking the details of how she tried to hang herself five times, impacts on a misapprehension of the attempted suicide evidence or the finding the cross-examination was distasteful. The witness said that she had a low pain threshold and that her instinct to breath kicked in, inferentially that is why she aborted her attempts to hang herself. It was apparent that she did not pursue the attempts for long although there were marks and bruising for three of the attempts at least. Counsel knew the details of the attempted suicide using medication. He felt that a half-hearted or less than successful attempt was not genuine or reflected that the attempts did not occur. The trial judge took a different view of what constitutes an attempt. It was open for His Honour to do so. Viewed in that way, the ruling did not prevent the appellant from pursuing his arguments in that area.

[210] I am not persuaded there was a misapprehension of evidence that would result in a new trial.

CONCLUSION

[211] The appeal is dismissed.

DURNO J.

Released: April 11, 2016

CITATION: R v. Griffin, 2016 ONSC 2448

COURT FILE NO.: 277/14

DATE: 20160411

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

PETER GRIFFIN

Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable S. Brown,

dated April 2, 2014]

DURNO J.

Released: April 11, 2016

[1] From the definition of ‘brutal’ in the Concise Oxford Dictionary.