



WARNING

The President of the panel hearing this appeal directs that the following
    should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1),
    (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue. 
    These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210,
    211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144
    (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156
    (indecent assault on male) or 245 (common assault) or subsection 246(1)
    (assault with intent) of the
Criminal Code
, chapter C-34 of the Revised
    Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection
    146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse
    with a female between 14 and 16) or section 151 (seduction of a female between
    16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or
    bestiality), 157 (gross indecency), 166 (parent or guardian procuring
    defilement) or 167 (householder permitting defilement) of the
Criminal Code
,
    chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately
    before January 1, 1988; or

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)      In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the
    complainant of the right to make an application for the order; and

(b)      on application made by the
    complainant, the prosecutor or any such witness, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.






COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.G., 2017 ONCA 351

DATE: 20170503

DOCKET: C62007

MacFarland, Pardu and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.G.

Appellant

Mark C. Halfyard and Breana Vandebeek for the Appellant

Jennifer McKee for the Respondent

Heard: March 2, 2017

On appeal from the order of Justice Bruce Durno of the
    Superior Court of Justice, dated April 11, 2016, dismissing an appeal from the
    conviction entered on April 2, 2014 by Justice Stephen D. Brown of the Ontario
    Court of Justice.

J. MacFarland J.A.
:

[1]

The appellant was convicted of three counts of sexual assault by Stephen
    D. Brown of the Ontario Court of Justice on April 2, 2014. His appeal to the
    summary conviction appeal court was dismissed by Durno J. on April 11, 2016.
    The appellant seeks leave to appeal his conviction to this court pursuant to s.
    839 of the
Criminal Code,
R.S.C., 1985, c. C-46. In R. v R.(R.), 2008
    ONCA 497, 90 O.R. [3d] 564. Doherty J.A. provided guidance as to when it will
    be appropriate to grant leave to appeal:

37: In summary leave to appeal pursuant to s. 839 should be
    granted sparingly. There is no single litmus test that can identify all cases
    in which leave should be granted. There are, however, two key variables - the
    significance of the legal issues raised to the general administration of
    criminal justice, and the merits of the proposed grounds of appeal. On the one
    hand, if the issues have significance to the administration of justice beyond
    the particular case, then leave may be granted even if the merits are not
    particularly strong, though the grounds must at least be arguable. On the other
    hand, where the merits appear very strong, leave to Appeal may be granted even
    if the issues have no general importance, especially if the convictions in
    issue are serious and the !applicant is facing a significant deprivation of his
    or her Liberty.

In my view, the issues here raised meet both
    requirements.

[2]

In this court, the appellant proposes two grounds of appeal:

1.

The summary conviction appeal judge (the SCAC judge) erred in applying
  the
proviso
(s. 686 (1)(b)(iii) of
  the Code)
proprio motu
where its application was not raised by the
  Crown and in circumstances where its application was inappropriate in any
  event; and
2.

He erred in failing to find a reasonable apprehension of bias on the
  part of the trial judge, particularly in view of the difficulties that the SCAC
  judge found in the trial judges reasons for judgment.
A.

BACKGROUND
[3]

The appellant was charged with three counts of sexual assault against
    his girlfriends daughter, T.B., who was 15 years old at the time of the
    alleged assaults (August 2010). The appellant resided at that time with the
    complainant and her mother, K.J., while K.J. was the appellants girlfriend.
[4]

The case hinged entirely on the trial judges credibility assessment.
    There were serious difficulties with the complainants evidence, one of the
    most significant of which was that the complainant had recanted the allegations
    under oath in an affidavit after having received independent legal advice, and
    then had recanted
the recantation
at trial. At paras. 127 through 138
    of his reasons, the trial judge listed what he described as hard questions in
    relation to the complainants evidence.
[5]

The defence position was that the complainant had fabricated the
    allegations, which she first raised with her mother while they were arguing
    about another topic, in order to deflect the subject matter of the argument.
    This conversation occurred very soon after her mother and the appellant had
    ended their relationship and the appellant had returned home to Australia. The
    appellant ultimately returned to Canada to deal with the charges. Despite the
    difficulties with the complainants evidence, the trial judge convicted the
    appellant.
[6]

At trial, the Crowns case was based entirely on the complainants
    evidence. The appellant and K.J. testified for the defence. The appellant was
    convicted on all counts on April 2, 2014, judgment having been reserved for
    three months. On September 12, 2014, he was sentenced to six months custody
    and related orders were imposed.
[7]

On September 2, 2015, the appellants summary conviction appeal was
    heard. After reserving its decision for seven months, on April 11, 2016 the
    court released its decision dismissing the appellants appeal.
[8]

Before the summary conviction appeal court the appellant raised four
    grounds of appeal:
1.

The verdict was unreasonable and not supported by the evidence.
2.

The trial judge erred in improperly curtailing the cross-examination of
  the complainant in relation to her understanding of her psychiatric diagnosis.
3.

The reasons for judgment reflected a reasonable apprehension of bias on
  the part of the trial judge.
4.

The trial judge misapprehended evidence, which he labelled as the
  trials most distasteful part, concerning the complainants purported suicide
  attempts.
[9]

In detailed reasons, the SCAJ judge rejected grounds 1, 3 and 4. The
    appellant does not seek leave to appeal to this court from his determination of
    grounds 1 and 4, only grounds 2 and 3 as noted above are before this court.
B.

ISSUES - ANALYSIS
(1)

Issue #1: The
Curative Proviso
(
Criminal Code
, s.
    686(1)(b)(iii))
[10]

As to the second ground the SCAC judge's analysis begins at para 80 of
    his reasons.
[11]

He disagreed with the trial judge's conclusion that the appellant's
    counsel was, by his question, seeking to elicit hearsay evidence. He concluded
    his analysis at para 84 as follows:
In these circumstances, I am inclined to the view that in these
    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)(iii).
And further that although the evidence in the case was
    far from overwhelming, the error was a minor one that could not have impacted
    on the verdict.
[12]

Defence counsel had asked the complainant what she understood her
    psychiatric diagnoses to be - and not what her psychiatric diagnoses were in
    fact. The point of the question related to certain evidence that the Defence
    had obtained from the complainant's social media accounts.
[13]

In my view, the summary conviction appeal judge erred when he resorted
    to the
proviso
to, in effect, excuse the trial judges error in
    curtailing defence counsels cross-examination. The law is clear that it is not
    open to an appellate court to apply the
curative proviso
on its own
    motion:
R v. Bisson,
2010 ONCA 556, 258 C.C.C. (3d) 338, at para. 2.
    As noted in
Bisson
, the Supreme Court has stated clearly that the
proviso
should be applied only upon submission from a party:
R v. Pétel,
[1994] 1 S.C.R 3, at p. 18. A review of the transcript of the appeal
    proceedings demonstrates that the Crown at no time relied on the
proviso
.
[14]

I do not accept the Crown's position that such reliance was implicit. To
    do so in this case would mean in effect, that the Crown could rely on the
proviso
in every case without the necessity of making an explicit argument that it was
    relying on the proviso. In
R v. McMaster
, [1996] 1 S.C.R. 740, at para.
    37, Lamer C.J. noted:
The respondent has not raised s. 686(1)(b)(iii) of the Code in
    argument. As I held
R v. Petel
[1994] 1 S.C.R. 3 at p.17, "[t]he
    Crown has the burden of showing that this provision is applicable...This
    court cannot apply it
proprio motu
.
[15]

Were I to accept the Crowns position on this point, I would, in effect,
    be relieving the Crown of the burden that the Supreme Court has said that it
    bears.
[16]

Therefore, it was an error of law for the SCAC judge to rely on the
proviso
.
[17]

This was not an overwhelming case; there were serious issues with the
    complainants evidence  not the least of which was her affidavit sworn in 2012
    to the effect that the allegations she had made against the appellant were
    untrue. This affidavit had been prepared with the assistance of a lawyer
    retained to provide independent advice to her. She then recanted the content of
    that affidavit in her evidence at trial.
[18]

The thrust of the defence position was that the complainant fabricated
    the allegations. Her credibility was the key issue. To preclude proper
    cross-examination in a key area was a serious error on the trial judges part.
    The error impeded the appellants ability to make a full answer and defence.
    Even if the Crown had raised the proviso in argument, this would not have been
    an appropriate case for its application. The error was not a minor one.
(2)

Issue #2: Reasonable Apprehension of Judicial Bias
[19]

The second ground of appeal raised in this court is that the SCAC judge
    erred by failing to find that the trial judge's reasons for judgment disclosed
    a reasonable apprehension of bias that tainted the proceedings and rendered the
    appellant's trial unfair.
(a)

Legal Principles
[20]

Our Supreme Court has held that an allegation of judicial bias raises
    such serious and sensitive issues that the basic interests of justice require
    appellate courts to retain some scope to review that determination:
R. v.
    R.D.S.
, [1997] 3 S.C.R. 484, at para. 102.
[21]

In
R.D.S
., the issue of reasonable apprehension of bias arose,
    like here, as the result of statements made in the reasons for judgment
    released by the trial judge. The first level of appeal was to the Supreme Court
    of Nova Scotia (Trial Division). There the court concluded that the reasons for
    judgment did disclose a reasonable apprehension of bias and that, as a result,
    a new trial was warranted. That decision was, in turn, appealed to the Nova
    Scotia Court of Appeal where the decision of the summary conviction appeal
    judge was upheld in a 2 to 1 decision. In the Supreme Court of Canada there was
    but one issue:
Did the comments made by
    Judge Sparks in her reasons give rise to a reasonable apprehension of bias?
[22]

In the Court of Appeal and in the Supreme Court of Canada the issue of
    deference was raised. It was argued that the summary conviction appeal judge
    had inappropriately re-examined and re-determined issues of credibility. The
    Court of Appeal held that, since the summary conviction appeal judges decision
    was based on the finding of a reasonable apprehension of bias, she did not err
    in law in declining to defer to the trial judges findings. In response to the
    same argument in the Supreme Court of Canada, the court noted:
98. Before dealing with the issue of apprehended bias, it is
    necessary to address an argument raised by the appellant and the interveners
    African Canadian Legal Clinic et al. They stressed that this appeal turns
    entirely on findings of credibility. There were only two witnesses, and their
    evidence was contradictory. Judge Sparks role was therefore simply to determine
    the issue of credibility. The appellant and the interveners argued that it is a
    well-established principle of law that appellate courts should defer to such
    findings, and that Glube C.J.S.C. improperly reviewed Judge Sparks findings of
    credibility. In my view, these submissions are not entirely correct.
99. If actual or apprehended bias arises from a judges words
    or conduct, then the judge has exceeded his or her jurisdiction. See
Curragh
,
supra
, at para. 5;
Gushman
,
supra
, at para 28. This
    excess of jurisdiction can be remedied by an application to the presiding judge
    for disqualification if the proceedings are still underway, or by appellate
    review of the judges decision. In the context of appellate review, it has recently
    been held that a properly drawn conclusion that there is a reasonable
    apprehension of bias will ordinarily lead inexorably to the decision that a new
    trial must be held:
Curragh
,
supra
, at para. 5.
101.  it is somewhat misleading to characterize the issue in
    this appeal as one of credibility alone. If Judge Sparks findings of
    credibility were tainted by bias, real or apprehended, they would be made
    without jurisdiction, and would not warrant appellate deference.
102.  A judicial determination at first instance that real or
    apprehended bias exists may itself be worthy of some deference by appellate
    courts:
Huerto v. College of Physicians and Surgeons
(1996), 133 D. L.
    R. (4th) 100 (Sask. C.A.), at p. 105. However, an allegation of judicial bias
    raises such serious and sensitive issues that the basic interests of justice
    require appellate courts to retain some scope to review that determination.
[23]

In
R.D.S.
,
both
    the Nova Scotia Court of Appeal and the Supreme Court reviewed the reasons of
    the trial judge
de novo
. I infer from their decisions that because of
    the importance of the issue and the fact that it raises a question of law, this
    court must review the reasons of the trial judge anew and no deference is owed
    to the determination of the SCAC judge on this issue.
[24]

The threshold for finding real or perceived bias is high. At para. 113
    in
R.D.S.
,
the court
    noted that an allegation of reasonable apprehension of bias calls into
    question not simply the personal integrity of the judge, but the integrity of
    the entire administration of justice.
[25]

The test for finding a reasonable apprehension of bias is a matter of
    well-settled law: what would an informed person, viewing the matter
    realistically and practically  and having thought the matter through  conclude:
Committee for Justice and Liberty v. National Energy Board
, [1978] 1
    S.C.R. 369, at p. 394.
(b)

Relevant Facts
[26]

This was a hard-fought trial and it was not an overwhelming one for the
    Crown. Some background is necessary to understand the dynamic underlying the
    trial.
[27]

As indicated above, K.J. Is the complainant's mother. The appellant was
    her live-in partner at the time the sexual assaults were alleged to have
    occurred. When the allegations of sexual assault came to light, a month or two
    after they were alleged to have occurred, K.J.'s relationship with the
    appellant had ended and he had returned home to Australia. The complainant was
    15 years old at the time and the three alleged assaults all occurred between
    August 16, 2010 and September 6, 2010.
[28]

At this time, K.J. lived with her two daughters, the complainant and her
    younger sister, as well as the appellant, whom she had met in October or
    November 2007. The appellant moved in with K.J. and her daughters in March
    2008.
[29]

K.J. and her husband had separated in January 2007 and the split appears
    to have been acrimonious, as was the relationship between K.J. and her older
    daughter, the complainant, from time to time.
[30]

The complainants statement to the police was video-recorded on October
    27, 2010; the appellant had returned to Australia on October 20, 2010.
[31]

K.J. had doubts about her daughters allegations against the appellant
    within a day or two. It was her evidence that in August 2011, the complainant
    told her that she wanted to go to the police and tell them that she had lied.
    K.J. also reported that on occasions prior to this, in the course of arguments
    with her mother, the complainant would yell, Well, then fine, Mom, I will go
    to the police and tell them I lied. Will that make you happy?
[32]

In October 2011, on K.J.s evidence, she thought that her relationship
    with the appellant was over. She contacted and retained Philip Benayon, a
    lawyer, to assist the complainant with recanting her allegations to the police.
    Most of the communication between Benayon and the complainant was by telephone
    or by e-mail. The first and only time when Benayon met the complainant in
    person was on April 4, 2012, when he visited her home, spoke with her in
    private about the affidavit that he had prepared in which she would recant the
    allegations that she had made against the appellant in her October 27, 2010
    police statement, and then attested to her signature of the affidavit. The
    complainant said that she signed that affidavit only because of the unrelenting
    pressure put on her by her mother to do so. In May 2012, the complainant left
    her mothers home and moved in with her father and his wife. On the
    complainants evidence, from that time until the time of the trial she rarely
    saw her mother. The appellant returned to Canada in August 2012 to face the
    allegations and to resume his relationship with K.J.
[33]

In May 2013, the complainant advised her lawyer that the affidavit she
    had sworn was false and that the allegations she made against the appellant
    were true.
[34]

The three alleged incidents of sexual assault involved touching of the
    complainants breasts, leg, buttocks and vaginal areas, all over her clothing.
    On one occasion, the appellant allegedly kissed her on her lips. She stated
    that, on each occasion, she told him to stop or pushed him away.
[35]

With this background in mind, I turn to the reasons for judgment and the
    impugned parts thereof.
(c)

Cross-Examination of the Complainant
[36]

At para. 35 of his reasons, the trial judge wrote of the complainant:
    T.B. was cross-examined over a two-day period in a vigorous and somewhat
    brutal fashion and, at para. 39, Mr. Bayless virtually scoffed at her
    testimony that she had tried to kill herself..., and, at para. 42, the trial
    judge described the complainants cross-examination as a prolonged and brutal
    attack on her character.
[37]

The highly critical characterization of defense counsel's
    cross-examination in his reasons for conviction contrasted with the trial
    judge's failure to intervene in that cross-examination while it was occurring, clearly
    troubled the SCAC judge.
[38]

And in the course of counsel for the appellants submissions on the
    summary conviction appeal, after highlighting some of the language used by the
    trial judge to describe the defence counsels cross-examination, such as brutal,
    no holds barred, distasteful, a full scale attack on a disturbed and
    vulnerable teenage and that the cross-examiner had mocked and belittled the
    complainant  the SCAC judge intervened and asked:
The Court: Look, doesnt he have an obligation during the trial
    to raise those issues?
The, its strange but its in the preliminary inquiry section,
    that a judge has an obligation to interject and Im certain there is case law
    with respect to trials that seems to me that if youve got that obligation
to say nothing?
Until the reasons and then, subject to the Crowns argument
. as all of which it would be close to a strongly worded
    judgment as Ive ever seen.
[39]

Yet, in his reasons delivered several months later, after having
    described some of the trial judges comments in relation to defence counsels
    cross-examination as ill-advised and clearly unjustified and improper
    (para. 173), he concluded:
[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 contributed to a reasonable apprehension of bias.
(d)

Attack on Defence Witnesses
[40]

The trial judges disdain for the appellant is palpable in reading the
    reasons for judgment. He stated at the very outset of his analysis:
[45] [The appellant], 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.
[41]

The appellants occupation was irrelevant to the issues, but was a
    prelude to what would follow.
[42]

In considering the appellants evidence in relation to the events that
    gave rise to the second alleged incident of sexual assault, he said that the
    appellant recalled with vivid exactitude and precision details that can only
    be illustrated by reproducing in its entirety this feat of amazing memory
    (para. 53).
[43]

There follows about four pages of transcript from the trial proceedings
    and then, at paras. 55-57:
In cross-examination the defendant went into more florid detail
    as to where people were standing and seated and other details of this event
    that were exceptional in their ordinariness.
P.G. gave similarly detailed evidence that explained in a
    calculated and exculpatory way the complainants allegations of him pushing
    her
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 T.B. when he was in the process of drafting an
    affidavit that recanted her allegations.
[44]

The trial judge reproduced a further six pages of transcript to detail
    the exchange between the appellant, defence counsel and the Crown in relation
    to a telephone call the appellant is said to have made to Mr. Benayon, the
    complainants lawyer. The trial judge noted that the evidence should be
    reproduced in its entirety, as it is essential to [the appellants]
    credibility.
[45]

In his evidence, the appellant had denied ever having a conversation
    with Mr. Benayon. There was a notation in Mr. Benayons file, however, in which
    he indicated that he had spoken to the appellant on October 11, 2011; Mr.
    Benayon was not called as a witness. The appellant testified that while he had
    no memory of ever communicating with Mr. Benayon by phone, email or text
    message, but that it was possible that he had communicated with the lawyer. He
    explained that he was under a great deal of stress because of these
    allegations. He also acknowledged providing information to K.J. to be passed on
    to Mr. Benayon.
[46]

This incident played a big part in the trial judges analysis of the
    appellants credibility.
[47]

After having described the trial as 
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

    (para. 121, emphasis added), he described the appellants testimony as follows:
[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 anyway communicated with Mr. Benayon and stated positively
    that he had not. When he was confronted with the evidence that he had called
    his accusers lawyer from Australia, his attempt to wiggle out of that lie was
    pathetic and enlightening to me.
[145] He went from a precise witness who would remember every
    mundane detail of events that occurred years ago to someone who was trying to
    salvage his credibility by saying that he recently forgot his keys in his car
    because of the trauma that these accusations have caused him. He even went so
    far as to suggest that his doctor said that he got throat cancer caused by this
    stress.
[146] He cried at one point when discussing that he coached a
    girl in Australia that had been raped and then committed suicide. This excerpt
    is found at page 114 of the August 30
th
transcript. This response
    was, in my view, made to solely elicit sympathy. It was staged and dramatic and
    insecure. I viewed his crying as being nothing more than crocodile tears. They
    have large crocodiles in Australia.
[48]

It is one thing to make negative credibility findings against a witness,
    but the language used by the trial judge is intemperate, condescending and
    sarcastic in the extreme. His extreme dislike of the appellant is apparent; he
    lacks impartiality. As the SCAC judge noted in his analysis of the trial
    judges reasons:
[159] First, the trial judges comments about the appellant
    being Australian, crocodiles and tears were most inappropriate and totally
    unjustified.
[166]  His Honours way of expressing his opinion that the
    appellant was trying to create sympathy by crying about a swimmers suicide was
    most inappropriate
[49]

The trial judge next turned to the evidence of K.J., where his
    commentary was also particularly inappropriate. He first noted the discrepancy
    between K.J.s evidence and that of the appellant about when they met, noting
    that her evidence was contrary to the defendants exquisitely detailed account
    of how they met on Halloween in 2007 (para. 65). On the appellants evidence
    they would have met in early November of 2007, whereas on her evidence it was
    mid-November. He justified his attention to this discrepancy as follows:
It
    is a small point, but it is one worth mentioning because of the defendants
    habit of giving his evidence with absolute certainty that I found off-putting
    on more than one occasion
 (para. 66, emphasis added).
[50]

First, whether they met first in early November or mid-November of 2007
    is, in this case, an insignificant difference and was utterly irrelevant to the
    issues raised. A trial judges duty is to try the case impartially  without
    favour or prejudice. His personal feelings about the appellant were irrelevant
    and ought not to have played any role in his decision.
[51]

The trial judge noted early in his consideration of K.J.s evidence that
    she has an abiding hatred for her ex-husband that is evident throughout her
    testimony and that her evidence veered off topic so she could get a dig in at
    her ex-husband (para. 72).
[52]

In relation to the retainer of Mr. Benayon, he noted, at para. 92:
The trail of emails between K.J. and Mr. Benayon clearly
    indicates the clear bias that this witness shows to her daughter. They also, in
    my view, show how actively the defendant was in marshalling a defence to the
    accusations in conjunction with K.J..
[53]

The trial judge took particular exception to the email sent by K.J. to
    the appellant, about one week after the complainant had revealed that he had
    touched her, wherein K.J. said, I have been told that it is a lie, that you
    didnt touch my girl. I still love you even if you did. Please tell me you
    still love me. He opined, [
W
]
hat
    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
 (para.
    96, emphasis added).
And, after having referenced another email
    communication between the two:
[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.
Later, he concluded:
[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.
[54]

Subsequently, in the trial judges Analysis section, he summarized the
    appellants testimony in four paragraphs and K.J.s in three, while spending
    some 18 paragraphs on the complainants.
[55]

Of K.J. he said:
[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 as 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 daughters 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.
[56]

In considering the complainants evidence, he responded as follows to
    the defence assertion that it was difficult to understand why the complainant
    would sit on the appellants lap and give him a hug shortly after he allegedly
    had assaulted her:
[153] To answer the more difficult question as to why she would
    go and sit on the defendants lap and give him a hug when he had recently
    sexually assaulted her, I agree that this is facially illogical.
[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
[57]

The use of this intemperate and insulting language was inappropriate and
    uncalled for and demonstrates a clear lack of impartiality. The trial judges
    task is to impartially assess the witnesss credibility. It is not part of his
    role to denigrate her character. It is unnecessary in making a finding of
    credibility to launch a personal attack of this nature. The judges personal
    opinions about the witness have no role in that task. We instruct jurors every
    day that they are to judge cases with neither sympathy nor prejudice. Here it
    is apparent that this trial judge let his personal feelings about the appellant
    and his witness overtake his objectivity.
[58]

The detailed scrutiny given to minor discrepancies in the appellants
    evidence, such as forgetting a telephone conversation that apparently took
    place two years earlier, and the inconsistency between the appellants
    testimony and K.J.s on when they met for the first time, stands in stark
    contrast to the scrutiny given to the complainants evidence. She had sworn an
    affidavit wherein she had recanted the allegations she made in relation to the
    appellant approximately 17 months after she had made them. The entire issue is
    resolved in three short paragraphs, 161-163. She gave her evidence 
in an
    honest and straightforward and believable manner. She went along with her
    mothers overwhelming persistent and unrelenting pressure to recant

    (para. 161, emphasis added).
[59]

The trial judge concluded that K.J. was the driving force behind the
    recantation, having intended to exonerate her boyfriend and clear the path
    for his return (para. 162).
[60]

The complainants evidence was that the first time she saw her affidavit
    was when Mr. Benayon appeared with it at her home and she signed it. On
    cross-examination, a series of emails was put to her that made it clear she had
    seen an electronic draft or drafts of the affidavit several weeks before she
    signed it and had had input into the content of it by suggesting changes that
    were made to it.
[61]

The complainant was 15 years old at the time of the alleged assaults, 17
    when she signed the affidavit and 18 when she testified. She was not a child,
    and Mr. Benayon was retained to independently advise her  although his
    financial retainer was covered by K.J., the record discloses that he met and
    consulted with the complainant independently, as he was obliged to do.
[62]

Yet the trial judge simply accepted that the affidavit was signed
    because of the persistence of K.J. and he found no intent to deceive on the
    complainants part when initially she said she hadnt seen the affidavit until
    the day she signed it.
[63]

The appellant was written off as a liar and all his evidence discredited
    when he did not recall a telephone conversation with Mr. Benayon.
[64]

It is difficult on this record, in view of the intemperate and
    inappropriate language used in relation to the appellant and K.J., not to conclude
    that their evidence was treated differently and was subjected to much greater
    scrutiny than was that of the complainant.
[65]

In my view, a reasonable person, properly informed, viewing the matter
    realistically and practically and having thought the matter through, would
    inevitably conclude that this matter was not decided fairly.
C.

DISPOSITION
[66]

I would grant leave to appeal and allow the appeal, set aside the
    conviction and related orders and order a new trial.
Released: 
GP MAY 03
    2017

J. MacFarland J.A.
I agree. G. Pardu
    J.A.
I agree. G.T.
    Trotter J.A.