Court File and Parties

COURT FILE NO.: 169/12 DATE: 2016 07 28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Stephanie Turner, for the Respondent/Crown Respondent

- and -

GORDON MACHEN JR. Tim Breen for the Appellant Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable N.S. Douglas, dated July 10, 2012 and sentence, dated November 6, 2012]

DURNO, J.

[1] On October 16, 2011, the appellant was driving a taxi and picked up two young women in downtown Guelph. M.D. got into the front seat and E.M. in the back seat. They asked to be driven to the Stampede Ranch bar (the Ranch) and if they could pay $10 for the fare as that was all the money they had with them.

[2] From that point the Crown and defence evidence diverged significantly. The women said he told them they would have to perform fellatio to get a $10 ride. He drove away from their destination and, after stopping the cab, put his arm around M.D., pulled down his pants, exposed his erect penis and demanded she perform fellatio before he let them out of the cab. The appellant testified that the women offered to perform fellatio and have intercourse with him instead of paying the fare. They both touched him in a sexual way.

[3] The appellant was charged with sexual assault of M.D., criminal harassment of M.D., and committing an indecent act by exposing himself in a public place. He pled not guilty to all counts.

[4] The trial judge rejected the appellant’s evidence, accepted that of the complainants and found the appellant putting his arm around M.D. was a sexual assault. He convicted the appellant of sexual assault and stayed the other counts. His Honour sentenced the appellant to 90 days in jail followed by probation for two years and made a DNA order and a ten year SOIRA order. The jail sentence has been served and the probation period completed.

[5] Acting on his own behalf, Mr. Machen appealed against the conviction contending his trial counsel provided ineffective assistance, that the trial judge displayed a reasonable apprehension of bias, and misapprehended the evidence. In the alternative, despite the fact the sentence has been served and the probation period ended by the time the final submissions were made, he appealed against the sentence.

[6] The appellant filed a prisoner’s notice of appeal while serving his sentence. Since his appeal had not been commenced within 30 days of filling the notice, he was required to be brought to court to have a date fixed for the appeal to be heard: Criminal Code, s. 819. A series of appearances followed when he was attempting to retain counsel without success and he eventually pursued the appeal representing himself.

[7] As he was alleging his trial counsel provided ineffective assistance, the appellant was cross-examined out of court and he had an opportunity to cross- examine trial counsel. The appellant presented written and oral submissions, was given several opportunities to file additional written submissions and to obtain further evidence from the people he believed had heard a comment by the trial judge that forms the basis for one of the grounds of appeal.

[8] After several dates for submissions and with written arguments filed, the appellant filed material that showed M.D. had never told the police that he had touched her as she testified. Eventually, the appellant obtained a new job and retained Mr. Breen to argue the appeal. He made submissions on the ineffective assistance issue and cross-examined trial counsel who was recalled to address the new issue in court.

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

The Trial Evidence

[10] The President of Red Top Cab, Charles Dadd, testified the company used a computerized dispatch and meter system that recorded the time the trip started and ended based on the driver pushing buttons that indicated the start and end time for the fare. He produced a printout of the cab trip during which the incident occurred. The trip lasted nine minutes from 12:19 a.m. to 12:28 a.m. according to the computer records and resulted in a $9 fare.

[11] The cab company also had a GPS system that recorded the cab’s route during the trip. Exhibits 1 and 2 showed the route the cab took and included a series of 15 images of the cab’s location on a map. After leaving the downtown area, it went along Woolwich Road, to Woodlawn Road and turned right on Arrow Road, turned around and went back down to the area of Woodlawn and Arrow. Mr. Dadd agreed that the GPS showed the cab in the parking lot area of the McDonald’s at Woodlawn and Arrow Road for three minutes.

[12] While cross-examining Mr. Dadds, trial counsel asked:

Q: You’ve been a cab driver for how many years? A: Twenty-five and a half years. Q: Have you ever had anybody make a sexual suggestion to you in – for a car ride?

[13] Crown counsel objected to the question on the basis of relevance. His Honour asked defence counsel how it was relevant. He said:

Because it’s really what the case is about in this case … just similar fact evidence.

[14] His Honour responded:

Whether or not somebody has made sexual suggestion to him has got nothing to do with this case.

[15] M.D. testified that she had “about four standard drinks” of rum and Coke before she went out to Trapper’s bar with E.M. At the bar, she had two standard Whiskey Sour drinks. When they left Trapper’s, they decided to go to the Ranch to dance and found a cab outside of McCabe’s bar. M.D. got into the front passenger seat and E.M got into the back. They asked if it was possible to go to the Ranch for $10 as that was all they had left. The driver said, “Yes, if you suck my dick.” M.D. said they initially thought he was kidding around.

[16] While driving to the Ranch, the appellant told her that his name was Gordo and provided his cell phone number if she wanted a free cab ride home, “if she returned the favour to him.” She put his number in her cell phone as he had asked her to do. As they were driving, he said that M.D. had nice sexy legs. He was making really rude comments towards her. She told him to please stop as they were inappropriate.

[17] Before the cab got to the Ranch, the driver turned and went down “a back road where there were no homes.” There was a factory on one side and a plaza that was closed on the other. When they asked where he was going, he said, “Now you have to suck my dick for this cab ride or you’re not getting out.” The driver turned the cab around so he was facing the road. She assumed he did so to see if anyone was coming down the road.

[18] There was a middle section in the front seat of the cab that he pulled up, hitting E.M.’s leg. He pulled down his pants to his knees, exposing his erect penis. He was wearing pajamas and had no underwear on. The witness continued, “… and then he put his arm around me and he was like now you have to suck my dick.” D.M. was shaking and felt like she was going to black out because she had never experienced something like that before. She felt uncomfortable and scared, like she was being sexually assaulted. She was terrified and had never felt so scared in her life.

[19] When E.M. said she had dialed 9-1-1 on her phone and was going to call the police if he did not let M.D. go, he unlocked the doors. They threw $10 at the appellant, got out and ran to the Ranch. They explained to the bouncers what had happened but they thought the women were telling a “drunk story.” The women went inside and when they came back out, they approached a Canadian Cab. Since it was not a Red Top, they decided to take the cab and told the driver what had happened. Without being asked to do so, he said he would take them to the police.

[20] E.M. testified that she had about two vodka drinks at home before going out and three drinks at Trapper’s, one vodka and Sprite and two Swedish Berry shots. When they left Trapper’s and walked down the street towards McCabe’s, they decided to take a cab to the Ranch. They flagged down a cab, got in and she asked if there was any chance they could get the ride for $10. She only had a bit over $10 and thought that would be enough to get to the Ranch. They were just “kind of joking because some cab drivers will let you kind of do that where you say like I have this much money and they’ll tell you if they can get to there in that time.” The cab driver did not really say yes but said if you suck my dick that he would. They thought it was a joke because sometimes cab drivers say things like that “off the cuff.” They just kind of laughed it off. At about the eight minute mark of the ride, that the appellant gave M.D. his phone number.

[21] They continued driving and he kept saying things about M.D.’s legs. She was wearing a skirt and he was focused on her legs commenting that she had sexy legs. They kept driving and she saw the Ranch and McDonald’s. However, the appellant turned right down another road, turned the cab around, “came back a distance and stopped for about five minutes, pulled down his pants and said suck my dick. E.M. saw that his penis was erect. During that time, there was no physical contact between the driver and her. At one point he reached over “kind of” to M.D.’s leg but from E.M.’s position she could not see if he made contact while they were driving.

[22] After they were stopped, she did not see him touch M.D. although he put his arm around the seat. From the back seat it was hard to tell exactly “if stuff is touching or not.” His hand was up on top, not down behind the seat.

[23] E.M. was concerned, pulled out her phone and dialed 9-1-1, telling him she was going to call the police if he did not let them out of the cab. That was when he unlocked the doors, she threw a $10 bill at him, they both got out and ran through a ditch until they got to the 24 hour McDonald’s. From there they walked across the street to the Ranch and told the bouncers what happened. They did not believe them, telling them they were just drunk.

[24] They got into the Ranch but had no money to pay the cover, walked back outside, sat on the steps and it was then that they realized the seriousness of the incident. E.M. decided they should go home, Googled Canadian Cab and got them to send a cab to the Ranch. That driver told them he was going to take them to the police station.

[25] In cross-examination, E.M. said that it was probably two or three minutes after they started to drive that she suggested a $10 fare. The cab was well on its way to where they were going. E.M. marked on Exhibit 2G that the cab had stopped about one-third of the way from Woodlawn to Fair Road M.D. had marked about two-thirds of the way up Arrow Road from Woodlawn towards Fair Road. E.M. denied that the appellant let them out at the corner of Arrow and Woodlawn. At no time was the cab parked in the McDonald’s parking lot.

[26] When E.M. testified that the appellant had an erection trial counsel suggested that she never saw his penis as it was dark. She said that was not. The cross-examination continued:

Q: All right, did you tell the – in your statement did you say – the question was: Q: Did he have an erection? A: You kind – you could see it, but it was kind of dark. I just remember the dark hockey pajama pants.

[27] She admitted making that statement but said that she did see a bit of his penis.

[28] Vincent McDonnell, the Canadian Cab driver, had known the appellant for forty years. In examination-in-chief, the Crown led that the witness had a favourable impression of the appellant; he was a pretty solid person. On the night of the incident, after midnight he was dispatched to the Ranch to pick up a woman named E. When he pulled up to the Ranch, the young women were sitting at the front steps. E.M. identified herself as the person who called and they got in the cab. Both were upset, crying and carrying on about a trip that they took from downtown with a Red Top Taxi driver. Mr. McDonnell drove the women to the police station. They paid him for the fare several months later.

[29] The appellant testified that one young woman got in the rear seat and one in the front. The appellant said that was “the strangest thing he had ever seen, but [he] didn’t worry about it.” When they got in they asked to go the Ranch but said they only had $10. He told them the fare would be $12 but he would drive them as far as $10 would take them. He gave them his phone number because at the start of the ride M.D. asked for it in case they needed a ride home after the bar.

[30] While they were driving to the Ranch, one of the women said he was a “real good looking sexy guy.” They asked if they could have a free ride. He told them they could not as “it did not work that way.”

[31] One woman said they had money at home and asked if they could pay for both trips later. He told them that if they were stuck for a ride after the bar, had nowhere to go and no one to pick them up and no money, he would come and get them. One of the women said that they would “suck your cock for a free ride.” They were both saying it and that he could “come over their faces and fuck them later and all this, word for word.”

[32] After the trial judge told the appellant that he was speaking too quickly, the appellant repeated the evidence as follows:

We’ll suck your cock for a free ride. I kind of laughed and I was like no, it’s okay and they kept saying that, both of them simultaneously, one after the other, and we’ll give you head and you can come on our faces and you can fuck both of us after the bar, we got money at home and all this, and I’m going no, no, no, no, no. I didn’t say a word to that, didn’t reply to it and I just kept driving.

[33] The appellant drove towards the Ranch and turned the meter off in the vicinity of Dawson Road [1] when the fare was around $9. E.M. told him to turn on Arrow Road and let them off on the corner.

[34] At this point the trial judge interjected,

You know what? I don’t know whether you are an auctioneer in your other life or what … but you’re going way too fast for us. So I’ve lost you.

[35] Later, His Honour said,

Listen, listen, you’re going too fast for me, so slow down.

[36] The appellant continued that it was both women who told him to turn onto Arrow Road. They were “sexually assaulting” him verbally. It was “sexual harassment, just disgusting, I mean they’re old enough to be my daughters and stuff coming out of their mouth was ridiculous, just to get a free cab ride.”

[37] M.D. was pushing buttons on his meter and grabbing his right knee. It sounded like she was pulling on his pants to pull them down or something. When he went further down Arrow Road, E.M. jumped out of the backseat and grabbed him around the throat again, planted her lips and “smeared” across his face kissing him. He freaked out on her, spun the cab around, pushed her hand back and drove to the stop sign as fast as he could to get them out of the car. They paid him after some disagreement and left his cab.

[38] The appellant said he had not called police because he was going to write it off as a couple of drunken girls trying to get a free cab ride, “because only university girls in Guelph try stuff like that.” His Honour asked, “What was that?” The appellant replied, “Only university girls that I’ve gotten in my cab, try to get free rides for sexual offers and favours all the time. No one says nothing about it.” University girls take off their tops or offer to take off their tops for a free ride. When asked for his impression of University of Guelph women he said, “Wild and crazy and those two, obnoxious and ridiculous.”

[39] While the women said he was wearing pajama pants, the appellant testified that he was wearing blue and white stage or guitar pants. He denied putting his arm around M.D., commenting on her legs, or asking the women for sexual favours. He acknowledged giving M.D. his phone number if they wanted a ride home.

The Reasons for Judgment

[40] The trial judge found the two women had minor inconsistencies in their accounts. That told His Honour that they had not come with a pat story. They did not compare notes.

[41] His Honour found Vincent McDonnell was one of the key witnesses. He saw the two women sitting on the steps crying. They were upset and seemed to have had a bad experience. They wanted to go home. When they told him what had happened, he determined he was going to drive them to the police station.

[42] His Honour continued:

If the accused is correct, not only are these two young women liars, they are perjurers. Not only do they immediately, as soon as they leave his cab, become actresses worthy of an Academy Award, pretending that this has happened to them and both looking distraught and upset over it, but they follow that through all the way to the courtroom, take an oath on the Bible to tell the truth, tell the story, get cross-examined by one of the most experienced counsel that we have in Guelph, and may I say one of the better counsel that we have in Guelph, and they stick to their story. They look to me like they are genuinely upset by what happened to them. They do not look like they are acting. They do not look like they have an axe to grind for this cabdriver because he wouldn’t give them a free ride for $10. They must be the most diabolical people this courtroom has ever seen, to put a man on trial for sexual assault and all of the things that follow from that if he is convicted. To lie to a court; it has happened. I have found people liars many times in this seat and I have found people who can act very well, but usually there is a reason. Usually there is a good reason.

What is the reason here? They were two drunken, sex-crazed co-eds who just couldn’t keep their hands off this “sexy guy” as he refers to himself as what they said about him, and so when he fought them off repeatedly, one of them was grabbing him around the neck and pulling him out of the seat and kissing him on the cheek, and one of them was trying to get his pants down as all this was happening, and he was valiantly fighting for his dignity and for his safety.

If these young women were making this up for some reason, you would think the story would be a little bit more graphic than what they said. They never said that he groped them or touched them.

What was the sexual assault? Without talking about how even minor sexual assaults effect women, by the way; you don’t know the effect. Some women can be brutally raped and somehow go on to live their lives. Some women can be kissed when they don’t want to be kissed and it can have an emotional traumatic effect on them for years. So I am not talking about that. I am talking about legally, on a scale of sexual assaults; this surely has to fall on the lower end of the scale as far as what he did. It is not the lowest end of the scale because according to them, he pulled down his pants and said vile things to them. But it pales in comparison with what he says they said to him. He has a story here that is about as graphic as you could be.

I sympathize, I agree with [the Crown]’s assessment. What kind of world is he living in? It is not reality. They are going to suck him off and they are going to let him come in their face, and they’re going to let him fuck both of them, for a $10 cab ride.

Who are we dealing with here, two prostitutes? It does not make sense. It does not stack up with common sense, but more particularly, as I assessed the evidence of both of them, they struck me as credible. Quite frankly, the second witness, E.M., struck me as a little naïve and not really a streetwise person. They struck me as two young co-eds who appeared to be like they said they were. That is not to say that young co-eds are all naïve and innocent. I do not believe that for a moment.

[43] With respect to the GPS evidence, His Honour found:

A lot has been made about the GPS, interesting stuff for sure. It looks like cab drivers these days can be traced from the moment they get in their cab; to the moment they get out of their cab. The times don’t jive with Exhibit 1 and Exhibit 2; that is what has been referred to as the flagged trip and the GPS positioning of the vehicles. Exhibit 2 for sure, shows that the route taken by this man’s cab was by and large all of what the witnesses say and the area that he was stopped for five minutes, although the GPS doesn’t show the car in the exact same position for those five minutes, it is in the same area and there is no doubt that for that period of time, namely 12:33 until 12:38, he was stopped near the intersections of Arrow Road and Woodlawn Road. That, we know from the GPS and I accept that, but as far as the times and as far as the exact position of where the car was, it does not show and I do not rely on that therefore. If it was something that was crucial to the case as [trial counsel] says it’s the crux of the case; then I would put more weight on it. One of the things [trial counsel] said I agree with wholeheartedly and that is, “We don’t know what happened in that cab.”

And that is always the way it is in a criminal court. The lawyers don’t know what happened. The lawyers cross-examine witnesses as if they know what happened, but they don’t. The judge does not know what happened. I was not there. Mr. Butler was not there. [Trial counsel] was not there.

There are only really three people who know what happened in that cab and like any truthful account of an event, when you have three people testifying about the same thing, there are going to be inconsistencies.

[44] His Honour then turned to the appellant’s evidence and set out the reasons he rejected his testimony and found he was lying under oath. First, that one woman got in the back and one in the front was not strange. Second, that they almost immediately were offering sexual favours for the cab ride was not credible. Third, he initially said in examination-in-chief that university girls trying to get free cab rides for sexual favours happened to him two or three times before. In cross-examination, he said it had happened four or five times. Later, he said six different women took their tops off in his cab. What the changes in his evidence showed was that he was making it up as he went along. If it had happened so many times why did he say he was shocked when these women spoke that way?

[45] His Honour found the appellant did give his phone number to the women because he was an opportunist, thinking that he would somehow score that night. He was willing to risk his job as he could get fired for giving out his phone number.

[46] The trial judge described the appellant as cocky in the witness box. He appeared to be a person who did not take instructions from others yet turned on Arrow Road when the women said to, despite the problems they were causing him. His Honour was satisfied beyond a reasonable doubt that the appellant sexually assaulted M.D. concluding:

… as soon as those women get into his car, like a heat seeking missile, he was on them and he said to them when they told him that they didn’t have more than $10, he saw an opportunity, said all right, you want a free ride, you can suck my dick,’ that he pulled his track pants, or pajamas pants or whatever you want to refer to them, they’re pretty easy to pull down. That is what he did and put his arm around M. and told her that if they wanted to get out, she would have to suck his dick. I find that to be an assault. I find that to be a sexual assault and I find him guilty and I am staying counts two and three because of the Kienapple principle.

The Grounds of Appeal

Did the appellant receive ineffective assistance from his counsel?

The Applicable Law

[47] The test for ineffective assistance of counsel is found in R. v. G.B.D., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. Archer, 2005 ONCA 36444, 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-21; and R. v. Joanisse, 1995 ONCA 3507, 102 C.C.C. (3d) 35 (Ont.C.A.). The appellant must demonstrate:

1. that the material facts in support of the claim have been established on a balance of probabilities;
2. that counsel’s ineffective representation caused a miscarriage of justice (the prejudice component), and
3. that counsel’s act or omissions amount to incompetence (the performance component).

[48] To succeed, an appellant must establish trial counsel’s conduct, as a result of acts, omissions or both, amounted to incompetence and that a miscarriage of justice occurred. G.B.D., at para. 26.

[49] The burden of establishing ineffective representation is on the appellant on a balance of probabilities and is not easily discharged: R. v. M.B., 2009 ONCA 524, 68 C.R. (6th) 55, at para. 7. The threshold for establishing incompetence is high. Hindsight has no place in the analysis: R. v. T.P., 2002 ONCA 49360, 59 O.R. (3d) 577 (C.A.), at para. 29. In many situations counsel will have a wide range of options, any of which would constitute competent representation. Reviewing courts must show deference to counsel’s choices: Joanisse, at para. 72.

[50] If the factual bases of the allegation are established on a balance of probabilities, the next step is to determine whether the alleged incompetence resulted in a miscarriage of justice. Unless that fact is established, there is no need for an appellate court to assess the adequacy of counsel’s performance: R. v. R.P., 2013 ONCA 53, 295 C.C.C. (3d) 28. If the prejudice standard is met, the court addresses the performance component. In the final area, in order to succeed on the appeal, the appellant must show that the legal assistance from trial counsel was incompetent: R. v. Baylis, 2015 ONCA 477, 326 C.C.C. (3d) 18, at para. 60.

[51] The prejudice inquiry examines the nature and seriousness of counsel’s alleged errors from two perspectives; the reliability of the verdict and the fairness of the process leading to that verdict. R.P. at para. 80. The appellant must show that a miscarriage of justice occurred: R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 241, at para. 63. The key is whether counsel’s performance undermines the reliability of the verdict: T.P., at para. 36. In making that determination, it is possible to look at the trial judge’s reasons for the context to determine the areas that were significant to the trial judge: M.B., at para. 63.

[52] The nature of the incompetence demonstrated exerts a significant influence on the nature of the inquiry required to determine the effect of that incompetence on trial fairness. Where the claim of incompetence relates to specific decisions of trial counsel, the effect on the fairness of the trial is measured by the impact of the errors on the reliability of the verdict: R.P., at para. 80. What the appellant must show is that with competent legal representations, there is a real probability he or she would not have been convicted: R.P., at para. 80.

[53] A reasonable probability lies somewhere between a mere possibility and a likelihood. The reasonable probability is established where the appellate court is satisfied that because of the ineffective representation, the verdict cannot be accepted as a reliable assessment of the appellant’s guilt.

[54] The Court of Appeal in R. v. Garofoli, 1988 ONCA 3270, 41 C.C.C. (3d) 97 (C.A.), rev’d on other grounds, R. v. Garofoli, 1990 SCC 52, [1990] 2 S.C.R. 1421, relied upon the American judgment in Strickland v. Washington, 466 U.S. 668 (1984), 104 S. Cr. 2052 (1984), which found the appellant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result … would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” However, Martin J.A. concluded:

I should add that, apart altogether from constitutional considerations, if, in any case, the Court considered that there was a real possibility that a miscarriage of justice had occurred due to the flagrant incompetency of counsel we would be entitled to intervene under s. 686(1)(a)(iii) of the Criminal Code [2]: see R. v. Swain, [1988] Crim. L. R. 109.

[55] Accordingly, when assessing an ineffective assistance ground of appeal, there is no distinction between “reasonable probability” and “reasonable possibility”: Joanisse, at para. 80 and footnote 9.

[56] The allegations of ineffective assistance must be closely scrutinized. In the cold light of a conviction, many decisions made by counsel will come to be seen as erroneous. Incompetence is determined on a reasonableness standard considering counsel’s performance in the specific circumstances of the case at the point in time when counsel made the decision challenged on appeal. The wisdom of hindsight occupies no place in the assessment. The reasonableness standard proceeds on a strong assumption that counsel’s conduct fell within the range of reasonable professional assistance: R.P., at para. 81. Here, the appellant must establish on a balance of probabilities that trial counsel’s conduct was not the result of reasonable professional judgment: R.P., at para. 81.

[57] Trial counsel’s performance must be reviewed on a deferential standard as “even among the most skilled counsel, no two lawyers will defend an accused in the same way”: R. v. White, 1997 ONCA 2426, 114 C.C.C. (3d) 225 (Ont. C.A.), at p. 247.

Analysis

[58] The appellant personally raised a series of allegations of ineffective assistance of counsel to which I turn now. All but one can be dealt with summarily. In general, for the first eight, despite the underlying facts being established they neither caused nor contributed to a miscarriage of justice. They did not impact on the reliability of the verdict or on the fairness of the trial.

[59] First, the appellant submits that counsel provided ineffective assistance because at the start of the trial he asked the appellant to take notes of the evidence instead of having an assistant in court to do so. When being cross-examined by the appellant, trial counsel said, “The reason why you were given the piece of paper to write the notes down was so that you could raise any of that during the trial and you raised nothing.” In his affidavit, trial counsel said that he tried to do this with every client so that they could write out any concerns, rather than interrupting the court to try to talk to him during cross-examination or examination-in-chief. The notes permitted him to review any points before closing his cross-examination.

[60] Counsel’s explanation makes sense and is not an uncommon occurrence. It permits the client to have input while stopping some clients from constantly tugging at counsel’s sleeve or otherwise interrupting counsel. There was no prejudice to the appellant. It could not have impacted on the reliability of the verdict or trial fairness.

[61] Second, the appellant submits that trial counsel should have led evidence about the prevalence of University of Guelph women offering sexual favours in lieu of paying full taxi fares. The simple answer to this allegation is that trial counsel did ask Mr. Dadd about his experience as a cab driver and the trial judge sustained the Crown’s objection that it was irrelevant to the issues to be determined at trial. No issue is raised on appeal with the trial judge’s ruling on that issue. None could be. The evidence was inadmissible.

[62] Third, the appellant submits that trial counsel should have introduced more of his clothing that he wore that night. The pants he was wearing were introduced and shown to be a different colour than the complainants testified to. Five other pieces of clothing were not introduced including a baseball hat, a winter coat, underwear, running shoes, socks and his belt.

[63] I am unable to see how the failure to introduce further clothing caused prejudice. There was no issue that the appellant was the cab driver who drove the two women. Whether his pants or shirt were a certain colour could not have impacted on the outcome or trial fairness.

[64] Fourth, the appellant submits trial counsel should have introduced more photographs of the interior of the cab to show the events could not have occurred as the complainants testified. Trial counsel’s affidavit explained that the one photograph introduced established that E.M. could not have seen the appellant’s penis from the back seat as she said she did. There is no basis upon which to conclude that the failure to show more pictures caused or contributed to prejudice, impacted on the verdict or trial fairness.

[65] Fifth, the appellant argues that trial counsel should have led evidence that he suffered from erectile dysfunction. The appellant had provided trial counsel with a written summation of his evidence. Trial counsel swore that the appellant had never mentioned that issue to him in their discussions. There was no cross-examination of trial counsel on this issue and the appellant admitted in his cross-examination that he had never told trial counsel about the erectile dysfunction or his back problems before trial.

[66] Any prejudice from the failure to cross-examine in this area was not the result of counsel’s conduct of the trial. Counsel cannot be faulted for failing to raise an issue upon which he had no instructions.

[67] Sixth, the appellant submits that trial counsel should have led character evidence on his behalf. While trial counsel said in his affidavit that he did not want to put the appellant’s character in issue, after the Crown had led that Vincent McDonnell had known the appellant for 40 years and had a favourable impression of him, trial counsel asked if he knew the appellant to be a truthful person in his dealings with him. The Crown did not object to the evidence.

[68] While neither the Crown nor defence counsel’s questions led admissible character evidence of general reputation (see R. v. Mohan, 1994 SCC 80, [1994] 2 S.C.R. 9), there was evidence before the trial judge of the appellant’s character. Given there was some evidence of the appellant’s good character, I fail to see how further evidence would have impacted the verdict or trial fairness. While evidence of good character can be of assistance in a criminal trial, in itself it is not determinative.

[69] Seventh, the appellant submits that trial counsel should have asked Mr. McDonnell if he told the appellant that, had he known the appellant was the driver the complainants were referring to, he would not have told them they should go to the police. Trial counsel said that he was aware of the comment attributed to Mr. McDonnell, but after speaking to him before the trial he concluded that his evidence of any conversation with the appellant would not be the same as the appellant’s. There is nothing to dispute counsel’s position that the evidence would not have supported the appellant’s account.

[70] In addition, and of greater importance in relation to potential prejudice, it is difficult to see how this omission could have impacted the verdict. At its highest, the evidence would have been that both women were distraught and upset about what they said another cab driver had done and said to them but “I decided not to take them to the police because I know the appellant.”

[71] Eighth, the appellant submits trial counsel should have done more with the GPS evidence which showed the complainants were wrong in relation to where the cab went. The GPS records showed the cab did not stop where the complainants said it did. Nothing more was required. There was no prejudice from the failure to “do more” with the GPS evidence. To the extent that it assisted the appellant, the point was made. However, the two Crown witnesses marked the exhibit at slightly different places and E.M. said that the appellant stopped near McDonald’s. That is not significantly different than the appellant’s evidence.

[72] That the trial judge did not find that evidence resulted in a reasonable doubt in his mind, was his call to make. The GPS evidence was not determinative. It may have raised concerns for the reliability of the witnesses but it is questionable whether it affected the credibility of the women. I am unable to see how doing more with the GPS evidence could have impacted on the reliability of the verdict or trial fairness.

[73] The ninth allegation of ineffective assistance, the one upon which Mr. Breen participated, is the most problematic and requires a detailed analysis of the evidence. The appellant personally argued that the complainants were not adequately cross-examined. As the appeal developed and Mr. Breen became involved, the issues evolved into: did trial counsel’s failure to cross-examine:

1. the two complainants in relation to their both changing their evidence between their police statements and their trial evidence as to when the appellant first raised the sex-for-fare issue,
2. M.D. on her failure to tell the police that the appellant touched her when the basis of the conviction for sexual assault was her trial evidence that he put his arm around her, and
3. on the complainants’ purported fear of the appellant and failure to go to the 24 hour McDonald’s which was closer than the Ranch when they got out of the cab,

result in prejudice that either impacted on the reliability of the verdict or trial fairness?

[74] The second issue is whether trial counsel’s decision to have a one-pronged defence based on the GPS resulted in concerns regarding the reliability of the verdict or trial fairness.

[75] Since none of these areas were addressed in the appellant’s own material or cross-examination of trial counsel, I will first review Mr. Breen’s cross-examination of trial counsel to provide the context for the examination of this ground of appeal.

[76] When the discrepancy between what M.D. told the police and her trial testimony was raised on appeal, trial counsel was notified and given an opportunity to address the issue as it was not raised when he was initially cross-examined. When he first appeared he noted that the trial judge appeared to have made inconsistent findings in regards to touching, noting initially “they never said that he groped them or touched them” and later that the sexual assault was the appellant putting his arm around D.M. Counsel also asked that the appeal be adjourned to permit him to consult with counsel. The adjournment was granted.

[77] On a later date, he was cross-examined by Mr. Breen and said that he requested disclosure but did not recall if he received electronic copies of the witnesses’ statements. His preparation was based on “the transcript” that was in the disclosure. It was a verbatim transcript of the evidence on the videos. He was shown a transcript of M.D.’s police statement and asked if that was what he was referring to. He said that it was. When asked if he was certain, he said there was a statement in the disclosure. Mr. Breen then pointed out that the transcript counsel had identified as the transcript from which he had prepared was prepared March 24, 2014, 20 months after the trial was completed. Counsel said, “All right. I’m just telling you that there … was a statement in the disclosure.”

[78] Mr. Breen showed counsel what was described as a witness statement with the following disclaimer:

The following is a synopsis of the interview based on notes made by the monitor during the interview. The sole purpose is to provide an overview of the interview based on the statements made during the interview. For a verbatim account of the interview refer to the original recording of the interview.

[79] Trial counsel identified the synopsis as the document from which he prepared for trial. He never asked for the original recording and could not say that he had ever seen it before the trial. That was not his usual practice. His usual practice was to get the DVD. He could not explain why he had not done so in this case.

[80] He agreed he could not have cross-examined on the synopsis, “but you have a general idea what’s being said.” He would have known or discerned what he thought the witness was going to say based on the two-page synopsis. Had the witness departed from the synopsis in a significant way that he could not show, he would have to have asked for an an adjournment.

[81] In his second affidavit, filed in relation to this issue, counsel said that he knew from the synopsis that M.D. had not told the police that the appellant put his arm around her. At trial he made a “tactical decision” not to cross-examine having regard to the probative value of the cross-examination measured against the potential prejudice. The decision was based on M.D.’s emotional state while testifying and that he would not know totally what the answer was going to be. In addition, he did not think it changed very much. It was an omission, not an inconsistency. The officer had never asked her if he touched her. Trial counsel said that if you looked at the synopsis for the way in which the officer examined her, there were really no questions, he did not lead her, she had been drinking and he simply asked her what happened.

[82] Counsel later agreed, that had he cross-examined on the omission he would not have been “opening the door” as the evidence was already out. He agreed that in the videotaped statement she was asked at the end if there was anything else she wanted to tell the officer about what had happened that night. She replied, “I think that’s everything.” When asked by the officer how she felt her recollection of the evening was, she replied, “Can’t believe I’m like I – like literally I will never forget what just happened tonight.”

[83] At trial, M.D. was asked how it felt when he put his arm around her, she said, “I was shaking and I felt like I was going to black out because I’ve never experienced something like that. Like I felt like I was being sexually assaulted, and I felt so uncomfortable and scared, I was terrified, like – like I’ve never felt so scared in my life.”

[84] Counsel said that had he asked her about the omission, she could have said that she was never asked. He felt that M.D. “should be gotten off” the stand as quickly as possible because he had another defence to the case. She was upset when testifying and trial counsel “could see the way in which – and from knowing Justice Douglas, see by the way he was taking it and how he was believing – how he was taking the evidence in.” The examination continued:

Q: Would you say how he was believing it? A: Well no, it’s not how he’s believing it; it’s not a case of that; it’s a case of her being emotional on the stand and just … Q: And what was your perception of how Justice Douglas was taking it? A: It wasn’t a perception of how he was taking it; I knew that she was a very – she appeared to be a very believable witness at the time, that’s what I’m saying. Q: So you thought her show of emotion made her seem credible and sympathetic? A: I thought she was being sympathetic. I thought that the emotion was not being – was not being put on. Q: So you thought it best not to contradict this apparently credible and believable witness? A: No … Q: With an omission. A: Well no, that’s not the way.

[85] Counsel then went on to explain the GPS defence. The cab was driven down Arrow Road which was not the normal way a person would have gone. That was his concern. The defence was partially relying on the Crown’s GPS evidence. The young women testified that the cab stopped at a certain location. The GPS showed that the cab was travelling at 46 kilometres an hour at that point. He would rely more on that “hard fact” as it did not coincide with their evidence and was consistent with the appellant’s.

[86] In his first affidavit filed in response to the appellant’s submission that his failure to do more with the GPS evidence, counsel said that the GPS showed the taxi did not stop where the women said it did on Arrow Road. Rather, it had stopped in the area of the plaza where the appellant testified that he stopped. Later in the affidavit, he said he used the GPS information in argument and it corroborated the appellant’s evidence “to some extent” by showing that any incident could not have taken place as the women described it.

[87] He was asked if he found it strange that the complainants ran from the cab to get to a safe place, yet in doing so ran right by a 24 hours McDonald’s, across four lanes of traffic to the Ranch where they wanted to meet their friends and dance. M.D. had said she went to the Ranch to dance, not to get help. They told the bouncer that she had been victimized as a means of getting in to dance as they had no money to pay the cover charge. That is what they had told the police but counsel did not cross-examine on that.

[88] Trial counsel’s tactical decision was to get her off the stand as quickly as he could. He had hard evidence that she was not fully telling the truth based on the GPS. His position was that neither witness was telling the truth because the GPS did not lie and it coincided with the appellant’s evidence. He “thought [he] had it on the GPS undermining her credibility.”

[89] He had not cross-examined on her statement that said the vehicle stopped near McDonalds because he thought she was adding to the appellant’s position by saying the cab stopped further up the road. The GPS contradicted that the cab stopped where they said it did. He felt the defence was better with their trial evidence.

[90] Trial counsel appeared to acknowledge that he was aware that in their trial testimony both women said the appellant first raised the oral sex-for-fare issue when they initially got into the car, yet in both of their police statements they were consistent that the first mention of oral sex was when he stopped the car near the Ranch. Counsel testified that he was alive to the inconsistency in both witnesses’ statement at trial.

[91] When asked why he did not cross-examine on the inconsistencies, trial counsel said that in their trial evidence they thought it was “kind of a ruse when they started,” a number of cab drivers had said those things.

[92] When asked why he would not cross-examine on the inconsistencies, trial counsel said that he went on the basis of the GPS. When asked if he was putting “all your eggs in the GPS basket,” counsel said, “A good part of it.” Later, he said he thought it was going to be everything in the GPS basket. He was asked if he decided not to get electronic copies of the statements because of the GPS and replied: “I thought that that was the answer quite frankly and I had the breakdown.” He thought he had enough from the synopsis.

[93] Earlier when cross-examined by the appellant, trial counsel testified:

… we were going to argue that the GPS was accurate, that it didn’t show any stop further down Arrow Road, that they couldn’t possibly have gotten out of the car where they said they’d got out of the car, and that was backed up by what the GPS said and by what you said, that you said you stopped down by McDonald’s, you got out and had a smoke and were there for a few minutes after the girls left. The GPS backed you up.

… and you don’t ask questions or keep people on the stand longer than is necessary to get what you want out of them and I got what I wanted out of those girls.

Well, my opinion was if they were kept on the stand longer it would just bolster the Crown’s case and I wasn’t prepared to do that to you.

[94] Against that evidentiary background, I will address the alleged deficiencies in counsel’s conduct of the case. The first step is to determine if the appellant has established the material facts in support of the claim on a balance of probabilities. He has. First, the record shows that trial counsel did not obtain copies of the women’s videotaped statements nor did he obtain a transcript of their statements. Second, there was no cross-examination of M.D. on her failure to tell the police that the appellant had touched her – the fact upon which the trial judge based his finding of guilt for sexual assault. There was cross-examination of E.M. as to whether she saw the appellant touch M.D. Third, there was no cross-examination of either witness as to why they ran to the Ranch when they were close to the 24-hour McDonald’s. Fourth, on trial counsel’s evidence, it is apparent that his defence was essentially to get the witnesses off of the witness stand as soon as possible and rely almost exclusively, if not exclusively, on the GPS defence.

[95] A related issue is whether trial counsel knew or realized that M.D. never told the police the appellant touched her when she testified at trial that he had put his arm around her. Trial counsel testified that he knew that from the synopsis but chose not to cross-examine on the omission for the tactical reasons indicated earlier. When trial counsel testified in court it had been many months since the trial and it is not apparent that he had read the complete trial transcript because he never mentioned that he had cross-examined on the synopsis.

[96] I am persuaded that counsel probably did not know or realize that M.D. had never told the police the appellant touched her for the following reasons. First, he did cross-examine E.M. on what she could or could not have seen to set up an apparent inconsistency. She did not see any touching but could not say that no touching occurred. While I accept that she testified after M.D. and “Monday morning quarterbacking” is not permitted, that all the eggs were in the GPS basket is belied by the cross-examination of E.M. That he would question E.M. about the touching is inconsistent with his total reliance on the GPS defence. Counsel chose to cross-examine E.M. to cast doubt on whether the appellant touched M.D. yet did not ask M.D. about her police statement. The touching issue was already in evidence, so asking M.D. about the omission/inconsistency was not going to prolong her evidence to any significant extent had he known she never told the police he touched her.

[97] Second, when this issue was first raised with trial counsel, it was months before he explained that he knew all along of the omission and that it was a strategic decision. Initially, he raised the trial judge’s apparently inconsistent findings. In his initial affidavit filed in response to the appellant’s own factum, counsel said, “There was also the question of Mr. Machen’s arm. The front seat complainant said it touched her. E.M. said she could not see Mr. Machen’s arm.” There was no reference to the strategic decision.

[98] Third, when cross-examined by the appellant personally, trial counsel testified:

… The second thing is, and being a “he said she said” case, I didn’t want to have them on the stand for a lengthy period of time so that the judge would get more of a feeling for the witnesses. The only thing that would go against what they had to say that we had was the GPS, and the GPS, in my opinion, backed up what you said, where the cars went. You remember the girls said they stopped halfway down Arrow Street is where you stopped. The GPS didn’t back them up on that. So that’s what I relied on for the whole trial, and you had the evidence that the Crown put in that said the GPS was accurate. You had the evidence from the, from what you said, and the GPS did not back up what the girls said. That was the only piece of independent evidence that I felt could really help you, and that’s what I concentrated. [Emphasis added]

[99] Dealing with whether the appellant has established the prejudice component on a balance of probabilities in each area raised, the appellant must show that with competent representation there is a reasonable probability/possibility he would not have been convicted. As regards the failure to cross-examine in general, the determination is case-specific. There will be cases where the failure does not establish prejudice. For example, the Court of Appeal held in R. v. Hagedorn, 2014 ONCA 681, at para. 7 that failure to cross-examine on “what may or may not have been prior inconsistent statements by the victim, did not raise to the level of professional incompetence”.

[100] Where the previous statement is first introduced on appeal, its admissibility will depend on its impeachment potential. Is it such that could reasonably be expected to have affected the result when viewed with the balance of the evidence? (R. v. G.(A.), 1998 ONCA 7118, 123 C.C.C. (3d) 350 (Ont. C.A.), at p. 352). Finally, the number of errors in trial preparation is a factor to consider when dealing with allegations of ineffective representation: T.P., at para. 31. See also, R. v. McKoy, 2011 ONCA 41, at para. 5.

[101] First, with regards to the main Crown witnesses both changing their account of when the appellant raised the suggestion of sex-for-fare, I am not persuaded they did so. While trial counsel agreed that they had changed their accounts and it appeared from some of their evidence that they had both told police the comment was first made on Arrow Road and both testified that it was right when they entered the cab, a detailed review of their evidence shows it is far from clear that they both changed their evidence on the same point. Had they done so, collusion or an incredible coincidence were the only options. It would have been a most significant issue since His Honour found that there was no collusion. However, what emerges from a review of their statements and testimony is inconsistent versions within their statements and evidence as to when the comment was first made.

[102] In her police statement M.D. was asked to tell the officer about the incident, starting from the beginning in “as much detail” as she could. She responded:

… We were at Trappers, like downtown and we went to get a cab to go to the Ranch so me and my friend [E.] got in a cab and we’re going to the Ranch and like, this cab driver seems pretty cool and then we’re like, can we get – is there any possibility we can get to the Ranch for ten dollars and he’s like, oh yeah, for sure, we’re like okay, that’s cool. And then like, we see the Ranch and then all of a sudden he pulls down a side road and we’re like what’s going on; he’s like, you can only get to the Ranch for ten dollars if you suck my dick and we’re going like no, we’re not going to do that.

[103] From that answer it appeared that M.D. was telling the officer that the first mention was after they turned onto Arrow Road. However, when the officer sought clarification in some areas, he directed M.D. to when they got in the cab and the discussion about the fare.

Q: Was the discussion about the fare when you got in the cab? M.D.: Yeah like we started driving for a bit, then he s – we’re like, is there any possible way we can get there for $10 ‘cause, obviously we’re university students, we don’t even have that much money (unintelligible) and then he said that comment. [Emphasis added]

[104] In that response M.D. said the comment was made after they started driving to the Ranch. When they asked about $10 he said he definitely could give them a $10 cab ride, they were “like okay,” and he turned the music up. When they got near the Ranch he pulled down his pants and they were “kind of like really confused.” He said the only way they got a free cab ride was to suck his dick. Those were his exact words on Arrow Road.

[105] Later, M.D. told the officer that he kept making rude comments about sucking his dick “the whole way.” Somewhere along the route, he started making the comments. He started the comments when they mentioned the $10 cab fare and after he gave them his phone number.

[106] At trial, M.D. said that E.M. went to the back seat of the cab and they asked the appellant if it was possible to get a $10 fare because that was all they had left. He said yes if she sucked his dick. At first, they thought he was kidding and nothing of it because they did not think it was intentional. On the way to the Ranch, he kept making comments about M.D. having nice legs, such sexy legs. He was making really rude comments towards her. She told him to please stop, it was inappropriate.

[107] M.D. testified that before any comments or anything inappropriate had happened, he asked her to put his phone number in her cell phone because he could give them a ride home. He first asked them their names, said his was Gordo and “here’s my number if you want a free cab ride home.” Later, after he made all of his sexual comments, he told her that if she wanted to call him for a ride home she could return the favour. In cross-examination, she said that the first mention of a $10 cab ride was as he started driving away from Trapper’s.

[108] From a review of M.D.’s police statement and trial evidence, it is not readily apparent that she changed her evidence. She was inconsistent within her statement to the officer and inconsistent in her testimony as to where the comment was made. It appears it was made after they left downtown, they had exchanged names and he gave them his phone number.

[109] E.M. was asked to “start from the beginning” and told the police that after they got in the cab, the appellant started driving them towards the Ranch, they were just kidding around and asked if he could give them a ride for $10. He kept going and turned off the meter. They kept driving, drove past the Ranch and pulled own a side road by McDonald’s. Throughout the ride, he kept saying M.D. had sexy legs, that her legs were so nice. Sometimes cab drivers were like that, kind of creepy. They just ignored him. Then he pulled down a side road, turned around and came back out by the McDonald’s, stopped a little behind McDonald’s, pulled down his pants and said they had to give him head if they wanted a free ride.

[110] When asked how far into the ride he started to make the comments she said she was “ not sure exactly where ‘cause it’s dark out … and I’ve had a bit to drink … and um, it was probably like five minutes into the ride … probably when we said like, we were just kidding, like can you give us a $10 ride, you know …”. [Emphasis added] It was when he turned off the meter at $9 that he started to make the comments. On the appellant’s evidence that was around Dawson Road, which was most of the way to the Ranch.

[111] E.M. testified they were in the cab and she asked the driver if there was any chance that they could get the ride for about $10 because she only had a bit over $10. She thought it would be enough to get to the Ranch from downtown. They were just “kind of joking” because some cab drivers will let you do that. He said if you suck my dick. They thought it was a joke and laughed it off. It was two or three minutes after they had been in the cab that she suggested the $10 cab ride. The cab was moving and well on its way to where they were going.

[112] As they continued driving he kept making comments to M.D. about her legs. E.M. saw the Ranch and McDonald’s, the appellant turned right and she believed he turned around. It was very dark. He turned around and that was when he pulled down his pants and said to suck his dick. She pulled out her phone and dialed 9-1-1.

[113] I am not persuaded that the appellant has shown both complainants changed their evidence as the appellant suggests. A comparison of their statements and testimony does not clearly establish they changed their evidence so that the sex for fare comments was at the start of the ride. While D.M. told the officer the comment was made on Arrow Road, she also told him that it was when they had been driving “for a bit” and after they had exchanged names and he gave them his phone number. She testified that he made the first comments that they regarded as a joke, after they exchanged names and he gave them his phone number. It was en route to the Ranch. E.M. told the officer it was probably five minutes into the ride although she was not exactly sure and that it would have been around Dawson Road. She testified that the comment was made two or three minutes into the ride, well on its way to the Ranch.

[114] No doubt, there were inconsistencies between their accounts of when the issue arose. However, on this record, I am unable to find that the failure to cross-examine on the inconsistencies as opposed to their both changing their evidence on the same point, resulted in prejudice. As with most allegations of failing to cross-examine, it is impossible to gauge precisely the impact any cross-examination would have had on this issue. In addition, both witnesses were intoxicated.

[115] With regards the omission/inconsistency between M.D.’s police statement and her testimony that the appellant touched her, the first issue is whether the trial judge made inconsistent findings as to whether the appellant touched M.D. The trial judge found,

If these young women were making this up for some reason, you would think the story would be a little more graphic than what they said. They never said that he groped them or touched them.

… That is what he did and put his arm around M. and told her that if they wanted to get out, she would have to suck his dick. I find that to be an assault. I find that to be a sexual assault and I find him guilty and I am staying counts two and three because of the Kienapple principle.

[116] I agree with both appellate counsel that there is no inconsistency when the first comment is viewed in the context that His Honour was addressing whether the complainants were liars. Had they wanted to lie, they would have said he touched them in a sexual way, they would have said he touched their breasts or vaginal area. The trial judge was not saying the appellant never touched M.D.

[117] That interpretation of the Reasons raises a second issue. Is it appropriate for a trial judge to say in effect, I believe the complainant because if he or she were lying they would have told a better story or embellished their evidence?

[118] In R. v. L.L., 2014 ONCA 892, at para. 2, the Court of Appeal held:

Counsel for the appellant takes issue with several features of the credibility assessments. We do not accept those submissions. However, we do find troubling the trial judge's reference to the complainant's lack of embellishment. It is not clear exactly how the absence of embellishment would help the complainant's credibility. It may be that the trial judge meant no more than a comment on what he saw as the straightforward, candid nature of her evidence.

[119] While this type of comment is unhelpful, in the context of this case, I am inclined to regard the trial judge’s statement as the Court of Appeal did in L.L. If I am wrong in that analysis, I would find the error occasioned no substantial wrong as it was one line in lengthy and thorough reasons for judgment.

[120] While the appellant was extensively cross-examined on the discovery on what area he felt should have been covered, the most significant issue was never raised, nor was trial counsel cross-examined on the issue. When the complainants gave their police statements, neither mentioned that the appellant had touched M.D. His Honour found as a fact that the sexual assault was the appellant touching M.D., yet at no time did she tell the police that he had touched her. Trial counsel never cross-examined M.D. on her failure to mention that the appellant had touched her.

[121] When this issue was first raised by the appellant, when given an opportunity to provide further written submissions, Crown counsel responded that it was not necessary for the appellant to have touched M.D. for him to be convicted of sexual assault. I agree that is so based on the following authorities: R. v. Johnson, [2006] O.J. No. 4450 (S.C.), at para. 150-52; R. v. Cadden, 1989 BCCA 2847, 48 C.C.C. (3d) 122 (B.C.C.A.); R. v. Rolfe (1952), 36 Crim. App. R. 4 (Eng.K.B.).

[122] The issue would be whether the appellant “attempted or threatened, by an act or gesture, to apply force, if he had or caused the other person to believe on reasonable grounds that he had the present ability to effect his purpose”: s. 265(1)(b) of the Criminal Code. On the complainants’ evidence, the appellant had D.M. in a locked cab, with his erect penis exposed and told her that she was not going to get out of the cab unless she fellated him. The conduct and words could support a finding of assault. That the assault was of a sexual nature taking into account all of the surrounding circumstances was readily apparent on the complainants’ evidence: R. v. Litchfield, [1994] 4 S.C.R. 333.

[123] Whether the evidence here without the appellant touching M.D. amounted to a sexual assault was never addressed at trial because M.D. testified that the appellant had touched her and His Honour accepted that evidence. The trial judge based his finding of fact on the touching, not some alternative basis.

[124] Returning to the failure to cross-examine on the fact M.D. never told the police the appellant touched her, it is most challenging to consider the impact of a cross-examination that never occurred. Contrary to the Crown’s submissions on appeal, the evidence was not first led as a result of a leading question by the trial Crown. M.D. gave the evidence without prompting. Her failure to tell the police the appellant touched her could have been based upon the appellant never touching her, the failure of the police to ask her if he touched her and/or that M.D. was intoxicated when she gave her statement despite her comments about how vividly she remembered the incident. There were readily apparent explanations for the omission. It was not as if the omission would have been an unanswerable “knock-out punch” in cross-examination.

[125] With respect to the complainant’s failure to run to McDonald’s instead of the Ranch, it is speculative whether cross-examination in this area would have been fruitful. First, the witnesses said that they had friends at the Ranch. Second, M.D. said that it was after they went outside of the Ranch that they realized the seriousness of the appellant’s conduct. Third, there was no evidence the appellant was following them.

[126] With regards to the one-pronged GPS defence, I find the appellant has shown that probably defence counsel planned on defending the case on the basis of the GPS showing that the cab did not stop where either woman said it did. Rather, it stopped at or close to where the appellant said it did. From the transcripts of his two cross-examinations, it was apparent that trial counsel believed that showing the women were wrong as to where the cab stopped that would result in a reasonable doubt about their credibility and reliability or at least that was his only defence. In his first affidavit, he swore that the GPS “showed that any incident could not have taken place as ” the witnesses testified. [Emphasis added]

[127] Trial tactics are difficult to assess. As noted earlier, different counsel will defend the same case in different ways. Indeed, if one were to ask three lawyers how to defend a case, you might receive three or four different opinions. What cannot occur on appeal is hindsight reasoning – counsel’s strategy did not work, so it must have been ineffective. Rear-view mirror assessments of trial counsel’s tactics are fraught with danger.

[128] One way of framing the question is was there was a reasonable tactical basis for the decision? I have trouble seeing how there was. The issue at trial was whether the Crown could establish beyond a reasonable doubt what happened in the cab was a criminal offence. Given the appellant’s evidence something unusual occurred in the cab in the vicinity of Arrow Road, as the trial judge found, where it occurred was not determinative. The difference in location was not essential to a finding of guilt. In addition, in her police statement E.M. had said that he stopped “close to McDonald’s”.

[129] With those findings in relation to the alleged deficiencies in counsel’s conduct, I turn next to whether those findings establish the prejudice component. I am not persuaded that individually or collectively the alleged deficiencies in counsel’s trial performance could reasonably have affected the result or impacted on trial fairness for the following reasons. First, even without the touching, the trial judge could have convicted the appellant of sexual assault, indecent act and criminal harassment. Touching was not an essential element of any of the offences.

[130] Second, from looking at the areas that were important to the trial judge, it is highly speculative whether a different approach would have made any difference. The test is whether there is a reasonable possibility or reasonable probability the result would have been different.

[131] Third, it is appropriate to assess the impact of the deficiencies “viewed with the balance of the evidence”. That evidence included Mr. McDonnell’s testimony regarding the complainants’ demeanor when he picked them up and that it was not their idea to go to the police. In addition, while the rejection of the appellant’s evidence does not enhance the credibility and reliability of the Crown’s evidence (R. v. J.N., 1994 ONCA 8738, 95 C.C.C. (3d) 121 (Ont. C.A.) the trial judge’s assessment of the evidence must be made in the context of all of the evidence – including the appellant’s. His evidence was most problematic in several regards. First, that he had never seen one passenger get in the front and one in the back could raise concerns for his credibility. Second, he testified both women were willing to have intercourse with him and perform oral sex on him for a $10 cab ride. In fact, on one view of the evidence, he said it was a $12 fare and they were going to pay him $10 and offering sex acts instead of a $2 fare. Third, his account of being the sexual assault victim was implausible. Fourth, the trial judge had the distinct advantage of seeing and hearing the key witnesses: R. v. Benson, 2015 ONCA 827, 333 C.C.C. (3d) 180, at para. 21. Fifth, the appellant changed his evidence in relation to the times he was offered sex acts for fares.

[132] When all of these factors are considered, I am not persuaded there is a reasonable possibility that the verdict would have been different had trial counsel cross-examined the young women as it is now suggested he should have. Nor am I persuaded that counsel’s one-pronged strategy raises concerns for the reliability of the verdict or trial fairness. The accused testified and his evidence was rejected. Counsel could and should have done more in preparing for trial. Counsel could have conducted a more detailed cross-examination. However, I find that counsel’s conduct of the trial does not undermine the reliability of the verdict. Nor am I persuaded there was any unfairness in the trial.

Did the Trial Judge display a reasonable apprehension of bias?

[133] The test for a reasonable apprehension of bias was established by the Supreme Court of Canada in R. v. R.D.S., 1997 SCC 324, [1997] 3 S.C.R. 484. Would the trial judge’s comment(s) or action(s) have led a reasonable and right-minded person, informed and viewing the matter realistically and practically, and who had thought the matter through, to conclude the trial judge was biased?

[134] The appellant contends that His Honour made a comment to him while he was testifying that displayed a reasonable apprehension of bias. Had that comment probably been made, I would have no hesitation in finding it was highly inappropriate, displayed not only a reasonable apprehension of bias but actual bias and ordered a new trial. The challenge for the appellant is that there is no independent evidence the comment was made.

[135] First, the transcript does not show the comment was made.

[136] Second, when this issue was raised on appeal, I directed that the recording of the trial evidence be obtained. The court reporter that was at the Summary Conviction Appeal went directly to the Ontario Court of Justice and with no prior notice asked for and immediately obtained a copy of the trial evidence recording. I have listened to the recording and it was played in court for the appellant to listen to. No one heard the comment despite the multiple microphones in the Ontario Court courtroom.

[137] Third, the appellant was certain that several people in the courtroom heard the comment. Having been given an opportunity to obtain affidavits from those who purportedly heard the comment, none were forthcoming.

[138] Allegations of bias are serious. In these circumstances with nothing independent of the appellant’s recollection, I am not persuaded the trial judge displayed a reasonable apprehension of bias on the basis of the alleged comment.

[139] While the trial judge did interrupt the appellant’s evidence and ask him to slow down at least twice, there was nothing improper about the interjections to ensure the trial record and the judge’s notes were accurate. That His Honour mentioned that he did not know whether the appellant was an auctioneer was simply a colourful means of conveying to the appellant that he had to slow down.

Did the trial judge misapprehend the evidence?

[140] A misapprehension of evidence includes a failure to consider evidence relevant to a material issue; a mistake as to the substance of the evidence; or a failure to give proper effect to evidence. R. v. Morrissey, 1995 ONCA 3498, 22 O.R. (3d) 514 (C.A.), at para. 83. For a misapprehension of evidence to result in a miscarriage of justice and the ordering of a new trial, the misapprehension must go to the substance, rather than the detail. It must be central to the trial judge’s reasoning. It must relate to “material parts of the evidence” and the errors must play an essential part in the trial judge’s reasons for convicting: R. v. Loher, 2004 SCC 80, [2004] 2 S.C.R. 732; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3. An error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the reasoning on which the conviction was based on unsteady ground. Sinclair, at para. 56.

[141] Applying that law, I am not persuaded His Honour misapprehended the evidence. The trial judge had the distinct advantage of seeing and hearing the witnesses. While another judge may have given more weight to the GPS evidence and some conflicts in the complainants’ evidence, I am not persuaded that His Honour erred in failing to give either enhanced significance. This case involved credibility assessments. Both the Crown and defence’s main witnesses arguably had some unusual evidence to present. The trial judge provided cogent reasons why he rejected the appellant’s evidence and accepted the Crown’s evidence. While the appellant is no doubt bitterly disappointed with the result, in itself that is not a persuasive ground of appeal.

The Sentence Appeal

[142] The appellant has served the jail sentence and his probationary period has ended. In those circumstances, the sentence appeal is moot and need not be addressed.

Conclusion

[143] The appeal is dismissed.

DURNO J.

Released: July 28, 2016

Footnotes

[1] Dawson Road is shortly before Arrow Road.

[2] Now s. 686(1)(a)(iii) permits an appellate court to allow an appeal on any ground where there was a miscarriage of justice.