


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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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.






CITATION:
R. v. L.C.T., 2012 ONCA
116



DATE:  20120222



DOCKET: C51614



COURT OF APPEAL FOR ONTARIO



OConnor A.C.J.O., Laskin and Cronk JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



L.C.T.



Appellant



Joseph Wilkinson, for the appellant



Peter Scrutton, for the respondent



Heard:  December 15, 2011



On appeal from the convictions entered by
          Justice Harry J. Keenan of the Superior Court of Justice, dated May 18, 2007.



OConnor A.C.J.O.:



[1]

On May 18, 2007, the trial judge convicted the
    appellant of four counts of sexual interference and one count of sexual
    exploitation.
[1]
The appellant was sentenced to five years imprisonment.  He appeals the
    convictions.

[2]

The appellant seeks to introduce fresh evidence
    in support of his position that the complainant was part of a conspiracy to
    frame him.  He also alleges that the assistance of his trial counsel (not Mr.
    Wilkinson) was ineffective, that the interpretation services provided to him at
    trial violated his s. 14
Charter
rights, that the trial judges reasons
    for judgment were insufficient, and that the trial judge erred in his
    assessment of the complainants credibility.

[3]

I would dismiss the appeal.

FACTUAL OVERVIEW

[4]

I provide only a brief overview of the evidence
    here.  I will set out more detail as needed in the course of my discussion of
    the grounds of appeal.

[5]

The complainant, L.T., was 16 when she testified
    at the trial in 2007.  L.T. testified that the appellant, who was her
    stepfather, began sexually abusing her when she was eight or nine years of
    age.  The abuse continued until she was fourteen.  The appellant lived with
    L.T. and her mother during most of the time period during which L.T. alleged
    abuse.

[6]

L.T. recounted various acts of sexual abuse,
    including the appellant touching her chest and genital areas, oral sex, and one
    act of sexual intercourse.  L.T. said she was not good at remembering specific
    times and dates, but placed the abuse in time relative to where she lived over
    the years.

[7]

L.T. first disclosed the abuse to a counselor at
    summer camp in 2005 during a group discussion about families.  The following month,
    she made a video statement to the police describing the abuse.  She adopted the
    contents of the video statement at trial.

[8]

Prior to the disclosure to the camp counselor,
    L.T. repeatedly denied that the appellant had abused her.  She denied the abuse
    to her aunt, her mother, a worker from the Childrens Aid Society, and to a
    lawyer who was defending the appellant on charges of sexual abuse laid by the
    aunt.

[9]

In 2002, the appellant was charged with sexually
    assaulting L.T.s aunt during a time period included in the range over which L.T.
    subsequently alleged abuse.  L.T. told the appellants lawyer that the appellant
    had not abused her.  She agreed to testify to help the appellant at his trial. 
    The charges against the appellant with respect to the aunt were eventually withdrawn
    at the request of the Crown.

[10]

In 2002, L.T.s aunt complained to the
    Childrens Aid Society that the appellant was abusing L.T.  In the subsequent
    investigation, L.T. denied the abuse.

[11]

L.T. testified that she did not tell anyone
    about the abuse before 2005 because she was ashamed, because she feared
    breaking the family apart, and also because the appellant had told her not to
    tell anyone.

[12]

L.T.s mother testified at the trial.  She
    described a few incidents involving the appellant and L.T. that she viewed as
    suspicious only with the benefit of hindsight.  She explained her non-intervention
    at the time of the incidents as being a result of her schizophrenia or the fact
    that she trusted the appellant.

[13]

The thrust of the appellants defence at trial was
    that the evidence of L.T. and her mother lacked credibility and reliability. 
    The appellant argued that L.T. had been telling the truth when she repeatedly
    denied abuse.  She concocted the allegations against the appellant in 2005 at
    the urging of and in order to assist her aunt.  L.T.s mother was also involved
    in the scheme to falsely accuse the appellant.

[14]

The appellant called an alibi witness relating
    to two of the counts in the indictment.  The witness, who was surety for the
    appellants bail, testified that the appellant was living with him and his wife
    during the time period set out in those two counts.  Thus, the appellant did
    not have the opportunity to commit the abuse alleged during that time period.

[15]

The appellant did not testify.

[16]

The trial judge concluded that L.T. was an
    honest witness.  He accepted L.T.s explanation for failing to disclose the
    abuse prior to 2005.  He found that her inability to recall exact times and
    dates was understandable in light of the time that had elapsed before she
    disclosed the abuse.  The trial judge rejected the appellants submission that
    L.T. was trying to assist her aunt in making the allegations against him.

[17]

Despite accepting L.T.s evidence, the trial
    judge acquitted the appellant on the two counts about which the alibi witness
    testified.  The trial judge had a reasonable doubt with respect to the timing
    of those counts.  However, in acquitting on those counts, the trial judge did
    not express any doubt about L.T.s overall credibility.

ISSUES

[18]

There are five issues:

(i)
Is an audio tape recording made by
    the appellant admissible as fresh evidence?

(ii)
Did the appellants trial counsel
    provide ineffective assistance and thereby cause a miscarriage of justice?

(iii)
Did the interpretation services
    provided to the appellant at trial violate his s. 14
Charter
rights?

(iv)
Were the trial judges reasons for
    judgment insufficient?

(v)
Did the trial judge err in his
    assessment of L.T.s credibility?

Issue #1: The Audio Tape

[19]

The appellant seeks to introduce fresh evidence
    in the form of an audio tape.  He submits that the recording shows that L.T.s
    aunt and mother colluded to fabricate false allegations of sexual abuse against
    the appellant in the past.  This, he argues, supports his position that the
    mothers testimony in this case is unreliable and therefore cannot be used to
    support L.T.s allegations.

[20]

The only evidence with respect to the origin of
    the audio tape comes from the appellant.  In his affidavit on the fresh
    evidence motion, the appellant said the tape was made on June 4, 2003 after his
    arrest on the charge of sexually assaulting L.T.s aunt.  On cross-examination,
    he conceded that the arrest stemming from the aunts charge had happened over a
    year before the tape was recorded, and that the recording had actually happened
    on the day of his arrest on other charges.  The appellants purpose was to
    record an incriminating telephone conversation between L.T.s mother and her
    aunt when he believed they were plotting against him.  He was not present at
    the time the conversations on the tape were recorded.

[21]

The appellant says that the relevant part of the
    tape records one side of a telephone conversation between L.T.s mother and
    some members of her family, including possibly L.T.s aunt.  The voice, which
    the appellant says is that of L.T.s mother, is speaking in Mandarin.  The
    appellant takes the position that the relevant part shows that L.T.s mother is
    conspiring with the unheard persons on the other end of the conversation about
    the time frame during which L.T.s aunt could claim that the appellant sexually
    assaulted her.  It also includes details L.T.s aunt could include in her
    allegations concerning certain identifying marks near the appellants genitals.

[22]

The appellant says that he gave the tape to a
    friend in 2003.  The friend made a copy and gave the original back to the
    appellant.  In 2005, the appellant gave the original back to the friend.

[23]

The appellants trial began on May 7, 2007.  On
    May 16, after the evidence had been completed and closing arguments begun, a
    different friend of the appellants delivered two tapes to the appellants
    trial counsel at the courthouse.  Counsel reviewed the tapes with a Mandarin
    interpreter, came to the conclusion that there was nothing relevant on them,
    and therefore took no steps to ask that the case be reopened.

[24]

Trial counsel gave evidence in connection with
    the appellants allegation of ineffective assistance of counsel.  He said that
    the appellant had told him about a tape in January of 2007.  The appellant had
    told him that it was, in effect, a smoking gun.  Trial counsel said he had
    asked the appellant for the tape during the period leading up to trial but
    nothing materialized until May 16.  In his evidence on the fresh evidence
    motion, the appellant said that he had not discussed the tape with his trial
    counsel before May 16.

[25]

The four-part test for the admission of fresh
    evidence on appeal is set out in
R. v. Palmer
, [1980] 1 S.C.R. 759.  To
    be admitted, the appellant must show that the evidence (1) could not have been
    obtained by due diligence before the trial (though this is not always required
    in the criminal context); (2) is relevant to a decisive or potentially decisive
    issue; (3) is reasonably capable of belief; and (4) if believed, could
    reasonably, when taken with the other evidence adduced at trial, be expected to
    have affected the result.

[26]

The appellant accepts that the tape could have
    been discovered by reasonable diligence before trial.  He says, however, that
    the lack of diligence should not govern the fresh evidence analysis because it is
    explained by trial counsels incompetence.  He also argues that the failure to
    exercise due diligence should give way to the importance of the tape to the
    result at trial.

[27]

The appellant argues that, if admitted, the tape
    could be used to impeach L.T.s mother by showing that she was involved in an
    earlier conspiracy to wrongly accuse the appellant of sexual assault.  As a
    result, the appellant argues, a court would reject the mothers evidence
    thereby removing any confirmatory evidence with respect to L.T.s complaints of
    abuse.  Thus, the tape could have affected the result at trial.

[28]

I would not admit the tape as fresh evidence. 
    In my view, the evidence does not meet the fourth
Palmer
criterion.  The
    appellant has not established that, if believed, the tape and the appellants
    evidence relating to it, could reasonably be expected to have affected the
    result of the case against him.

[29]

Importantly, the tape does not undermine L.T.s
    credibility.  It does not relate to L.T.s complaints of sexual abuse.  According
    to the appellant, the tape was made over two years before L.T. first complained
    of abuse.

[30]

The tape also does not support an argument that
    L.T.s evidence was part of a conspiracy with her mother to frame the
    appellant.  Significantly, there was evidence that when the Childrens Aid
    Society apprehended L.T. on September 6, 2005, L.T.s mother was supportive of
    the appellant, not L.T.

[31]

At best, the tape could have been used to
    cross-examine L.T.s mother and possibly undermine her credibility on the basis
    of an argument that if she conspired in 2003 to frame the appellant on the aunts
    charges, her evidence in L.T.s trial should have been suspect.

[32]

There are two difficulties with this argument.  First,
    the meaning of the conversation on the tape is not clear.  While it may be
    capable of the sinister interpretation urged by the appellant, it is also open
    to a more benign explanation.  It is difficult to know what the impact, if any,
    of cross-examining L.T.s mother on the tape would have been.

[33]

Second, it is not apparent that the trial judge
    relied upon L.T.s mothers evidence in convicting the appellant.  The trial
    judge discussed the mothers evidence and noted that she had testified about
    some examples of nudity and sexual impropriety.  However, the trial judge
    recognized that there were problems with the mothers evidence.

[34]

Importantly, the trial judge made strong and
    clear findings favourable to L.T.s credibility.  He concluded she was a
    truthful and credible witness.  He did not link his finding of credibility to
    support gleaned from the mothers evidence.

[35]

In the result, I would not admit the fresh
    evidence.

Issue #2: Ineffective Assistance of Counsel

[36]

The appellant argues that this court should
    order a new trial because the ineffective assistance provided by his counsel at
    trial may have caused a miscarriage of justice.

[37]

When a claim of ineffective assistance is
    raised, the onus is on the appellant to establish (1) the facts that underpin
    the claim; (2) the incompetence of the assistance provided; and (3) the
    incompetent assistance resulted in a miscarriage of justice:
R. v. G.
    (D.M.)
, 2011 ONCA 343, 105 O.R. (3d) 481, at para. 100;
R. v. Joanisse
(1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 59, leave to appeal to S.C.C.
    refused, [1996] S.C.C.A. No. 347.

[38]

Incompetence is determined by a reasonableness
    standard applied to the particular circumstances of the case:
Joanisse
,
    at pp. 60-61.  Hindsight plays no role in the analysis.  The competence
    assessment must be informed by a presumption in favour of competence.

[39]

In assessing whether there has been a
    miscarriage of justice, an appeal court may consider the impact of the
    incompetence on the reliability of the result or on the fairness of the process
    by which the result was achieved:
Joanisse
, at p. 62.  When an appellant
    alleges that trial counsels incompetence impacted the reliability of the
    result, the appellant must show that there is a reasonable probability that the
    appellant would not have been convicted but for the incompetence.  Put another
    way, a reviewing court must be satisfied that the verdict cannot be taken as a
    reliable assessment of the appellants culpability:
Joanisse
, at pp.
    63-64.

[40]

The appellant relies on four areas where he
    alleges counsel was incompetent.

(a)       The Audio Tape

[41]

The appellant argues that his trial counsel was
    incompetent in the way he addressed the audio tape.  In particular, he alleges
    incompetence because trial counsel (1) failed to take steps to obtain the tape
    before the trial; (2) failed to discuss the content of the tape with the
    appellant after he received it; and (3) failed to apply to re-open the case to
    use the tape at trial.

[42]

I am not satisfied that the appellant has met
    the ineffective assistance test with respect to the tape.

[43]

I do not accept that counsels conduct fell
    below the reasonableness standard in respect of his effort to obtain the tape
    before the trial began.  On trial counsels evidence, the appellant told him
    about the tape approximately four months before the trial.  Counsel
    subsequently asked the appellant for the tape, but the appellant did nothing.  The
    tape only materialized after the appellant called his friend to ask that it be
    delivered to trial counsel.  It is unclear what else counsel could have done to
    expedite this process.

[44]

I am concerned somewhat that once counsel
    received two tapes on May 16, he did not ask the court for time to review them
    with the appellant.  While it was obviously late in the day, such a request
    would have been appropriate and may have led to an application to re-open the
    case to further cross-examine L.T.s mother on the basis of the relevant part
    of one of the tapes.  However, it is by no means clear to me that the appellant
    would have been permitted to have the case re-opened.

[45]

In any event, I do not find it necessary to
    decide whether or not trial counsels handling of the tape on May 16
    constituted ineffective assistance.  Assuming the trial judge had permitted the
    case to be re-opened and counsel to cross-examine L.T.s mother on the tape, I
    do not think there was a reasonable probability that the result at trial would
    have been any different.

[46]

I reach this conclusion for essentially the same
    reasons I concluded that the tape should not be admitted as fresh evidence.

(b)       L.T.s Allegation of Attempted Rape

[47]

L.T. made a video statement to the police on
    September 7, 2005 about the alleged abuse by the appellant.  Towards the end of
    her statement, she mentioned that she had been almost raped by a fellow
    student when she was in grade five.  She said this occurred at school, in public
    and the teachers did nothing about it.

[48]

The appellants trial counsel was of the opinion
    that there would be benefit in cross-examining L.T. about this incident.  He
    reasoned that the allegation was demonstrably false because it was incredible
    that the teachers would have done nothing if they had seen what L.T.
    described.  Trial counsel concluded that his cross-examination could have a devastating
    effect on L.T.s overall credibility.

[49]

The appellant submits that trial counsel was
    incompetent because he did not investigate the truth of L.T.s almost raped claim
    before cross-examining her about it at trial.  The appellant also submits that
    trial counsels cross-examination of L.T. about the incident was ineffective.

[50]

I would not give effect to these arguments.

[51]

The almost raped evidence related to a
    collateral matter.  It had nothing to do with L.T.s allegations against the
    appellant nor did it show a pattern of conduct by L.T. of bringing forward
    false claims about sexual abuse.  She did not complain about the incident until
    she mentioned it at the end of her statement to the police in September 2005.

[52]

Clearly, trial counsel thought about the issue
    with some care.  He considered this courts decision in
R. v. Riley
(1992),
    11 O.R. (3d) 151, and determined he had a basis to cross-examine L.T. about the
    collateral incident.  He decided that the best way to approach the issue was to
    have L.T. adopt the almost raped statement as true and then show that what
    she said was incredible.  In closing argument, he would submit that L.T. had
    lied or seriously exaggerated the incident and was therefore not a credible
    witness.

[53]

Trial counsel cross-examined L.T. on the issue
    without objection.

[54]

In my view, the appellants criticism of trial
    counsel with respect to the almost raped issue is answered by what Doherty
    J.A. said in
Joanisse
.  At p. 61, he pointed out that the reasonableness
    of counsels performance must be measured in the particular circumstances of
    the case at the point in time when counsel acted.  He said:

The wisdom of hindsight has no
    place in this assessment.  This approach also recognizes that in many
    situations counsel will have a wide range of options any of which, if taken,
    will constitute competent representation.  Appellate courts must give deference
    to the choices made by counsel and the competence assessment must be informed
    by a perception in favour of competence.

[55]

I think the approach adopted by counsel was
    reasonable.  While he may have been overly optimistic about the potential impact
    of his cross-examination, I do not think that his decision not to investigate
    the incident before trial was unreasonable.  To the extent there was anything to
    be made of the incident, the simple approach adopted by trial counsel of having
    L.T. confirm the allegation, including the surrounding circumstances, and arguing
    that her description was incredible was a reasonable strategy.

[56]

Although it may be argued that trial counsels
    cross-examination on the issue was not as effective as it might have been, it
    does not, in my view, come close to warranting appellate intervention on the
    basis of incompetence.

[57]

Appellate courts should be particularly cautious
    when asked to review counsels performance during a cross-examination.  Cross-examination
    is often referred to as an art, for good reason.  While careful preparation is
    no doubt essential, counsel are frequently required to make judgments in the
    moment about how to word the next question and whether to pursue an issue or
    leave it alone.  In making decisions, counsel must be alive to the language
    used by the witness, the content of the answer, a witness demeanour, the
    likelihood of what the witness may say in response, and, importantly, the
    impact on the trier of fact of what has come out to that point and what may yet
    come out.  Successful cross-examiners may adopt different approaches to similar
    situations.  Frequently, there is not one correct way to cross-examine a
    witness on a particular point.

[58]

I would not give effect to the appellants
    argument that trial counsels handling of the almost raped allegation
    constituted ineffective assistance of counsel.

(c)       The Photograph

[59]

About four months before trial, the appellant
    informed trial counsel that he had some unusual characteristics in relation to
    his genitalia, including not being circumcised and having odd coloured pubic
    hair and a scar near his testicles.  The appellant wanted trial counsel to
    cross-examine L.T. about whether she had seen any of these unusual
    characteristics during the alleged sexual abuse.

[60]

Trial counsel did not do anything to confirm
    what the appellant had told him.  He did not cross-examine L.T. about the
    appearance of the appellants genitalia and closed his cross-examination. 
    During the ensuing break, the appellant reminded counsel about this matter.

[61]

On resuming, counsel asked the trial judge to allow
    him to re-open his cross-examination.  The trial judge agreed.  In answer to counsels
    questions, L.T. testified that she had not noticed anything unusual.

[62]

At the end of the Crowns case, counsel asked
    the court to assist him in making arrangements for counsel to go to the court
    cells to take a photograph of the appellants genitals.  On examination in the
    cells, trial counsel concluded there was nothing remarkable about the appellants
    appearance.  Nonetheless, he had a photograph taken.

[63]

Once back in court, trial counsel told the court
    that there was nothing there and chalked the incident up to a misunderstanding
    on his part.  He did not produce the photograph.  In his evidence with respect
    to the incompetent counsel allegation, trial counsel conceded that when he came
    back to court empty-handed he was trying to do damage control.  He went on to
    opine that the series of events did incalculable damage to [the appellants]
    defence.  Counsel said he discerned a look of disdain on the trial judges
    face when he told the trial judge there was nothing there.  Counsel thought
    that that the incident helped get [the appellant] convicted.  He accepted that
    he was partially responsible for the disaster.

[64]

This series of events could have been avoided if
    trial counsel had looked into the issue before trial or before cross-examining
    L.T. on the issue.

[65]

In my view, the way trial counsel handled the
    issue fell below the standard of reasonableness.  He should have made sure of
    his footing before starting down the path of cross-examining L.T.  It was
    apparent that the issue could turn out poorly, as it did.

[66]

The question remains, however, whether there is
    a reasonable probability that counsels shortcomings with respect to this issue
    affected the result at trial such that the verdicts can be said to be
    unreliable.  In my view, there is not.

[67]

Trial counsel expressed the view that the courtroom
    disaster played a role in the outcome.  However, his view is not
    determinative.  Rather, it is essential to look at the way the trial judge
    addressed the issue.

[68]

When counsel returned to court after developing
    the photograph, he told the trial judge there was nothing there and that there
    had been a misunderstanding on his part.  In effect, counsel took the fall. 
    The trial judge recognized that the episode could be problematic.  He addressed
    it immediately.  He said: It appears it [the photograph] has no relevance
    because the purpose of taking the picture, as I understand, was to cast some
    doubt on the evidence of the complainant.  He concluded by saying: We will
    eliminate the consideration of the photograph and consider it to be a non-issue.

[69]

In his reasons for convicting the appellant, the
    trial judge made no mention of the photograph or of any of the events relating to
    the issue.

[70]

The trial judge did not cause whatever problem
    there was.  Indeed, he did everything that he could to address any possible
    prejudice that the episode would operate unfairly to the appellant.  He said he
    was not considering it and then he did not.

[71]

I am not satisfied that the photograph incident
    played any role in the trial judges ultimate conclusion.  Thus, any
    shortcoming of the appellants trial counsel in this respect does not provide a
    basis for appellate intervention.

(d)       The Decision Not to Testify

[72]

The appellant argues that trial counsel also
    provided ineffective assistance in advising him that he need not testify at
    trial.

[73]

First, the appellant argues that trial counsel
    vastly over-estimated the effect of his cross-examination of L.T. with respect
    to the almost raped incident and that this erroneous assessment led him to
    encourage the appellant not to testify.  Trial counsel was of the opinion that
    his cross-examination was so successful that the trial judge was unlikely to
    convict on the basis of L.T.s evidence.

[74]

I do not accept this argument.  No doubt trial
    counsels assessment of the impact of his cross-examination on the almost raped
    issue was overly optimistic.  The trial judge paid little heed to this evidence
    in assessing L.T.s credibility.

[75]

However, even if counsel had not misjudged the
    impact of the almost raped evidence, it was most unlikely that he would have
    advised the appellant differently about whether to testify.  Prior to the
    trial, counsel discussed with the appellant whether he would give evidence.  Counsel
    had formed the opinion that the appellant would make a terrible witness.  In
    his discussions with the appellant, counsel observed that the appellant was
    unable to answer questions clearly, that he would go off in tangents and that
    he was the classic non-responsive witness.  Counsel gave the appellant his
    opinion.  The appellant decided that he would not testify.  As a result, the
    appellant re-elected trial by judge alone.

[76]

At most, trial counsels assessment of L.T.s
    evidence regarding the almost raped incident simply served to confirm the
    wisdom of a decision that the appellant had already made  he would not
    testify.

[77]

The appellant also says that his decision not to
    give evidence was affected by the events surrounding the photograph.  The
    concern, he argues, was that if he gave evidence, he would have been confronted
    with those events and his credibility undermined.  Be that as it may, at best,
    the photograph incident only confirmed a decision that had already been made.

[78]

In summary, I would not interfere with the
    judgment on the basis of the ineffective assistance of counsel arguments.

Issue #3: The Adequacy of the Interpretation Services

[79]

The appellant required the assistance of a
    Mandarin interpreter at trial.  He seeks to have fresh evidence admitted with a
    view to establishing that the interpretation services provided at trial were
    inadequate and breached his s. 14
Charter
rights.

[80]

The fresh evidence is found in two affidavits of
    the appellant and in the cross-examination on those affidavits.  The appellant
    alleges that he could not understand parts of the evidence at trial.  Some of
    the interpreters had accents that he could not understand and some of the
    interpreters were unable to keep up with the speed of the proceedings.  As a
    result, he argues that his rights to be present at trial and have the
    proceedings interpreted were breached.

[81]

I would not admit the fresh evidence.  The
    appellants argument that his s. 14
Charter
rights were breached has no
    chance of success.

[82]

The appellants evidence about his inability to
    understand the interpreters lacks credibility.

[83]

The appellant never mentioned anything about the
    alleged interpretation problems to his lawyer or to the court during the trial. 
    The appellants trial counsel testified that the appellant did not mention any
    difficulties and that he, the counsel, was satisfied that the appellant
    understood the proceedings.

[84]

I am also satisfied that the appellant never
    told any of the interpreters that he was having trouble understanding them. 
    While his proposed fresh evidence is somewhat inconsistent on this point, it is
    significant that none of the interpreters reported to the court that the
    appellant was having difficulty.  Moreover, the trial transcript reveals that
    on occasion interpreters spoke up if they were having difficulty in
    interpreting the evidence.

[85]

Most tellingly, when during the sentencing
    hearing a Cantonese interpreter attended whom the appellant did not understand,
    the appellant told the judge in English that he could not understand.  It is
    hard to imagine that the appellant would not tell his lawyer, the judge or an
    interpreter on other occasions if he had had the same problem.

[86]

Finally, in respect of the interpretation services
    at trial, the appellant submits that he may not have been present when two of
    the interpreters were sworn.  He argues that this breached his right to be
    present at his trial pursuant to s. 650 of the
Criminal Code
.

[87]

I have reviewed the relevant part of the
    transcript.  While it is not entirely clear, I think the better view is that
    the appellant was present when the interpreters were sworn.  Moreover, the
    appellant has not sought to introduce fresh evidence indicating that he was not
    present at the time.

[88]

I would not give effect to this argument.

Issue #4: Sufficiency of Reasons

[89]

The appellant argues that the trial judges
    reasons were insufficient for two reasons.

[90]

First, he says it was incumbent on the trial
    judge to reconcile the doubt he had with respect to the counts on which he
    acquitted with his findings of guilt on the other counts.  I do not accept this
    argument.

[91]

The trial judges doubt with respect to the two
    counts related to whether the offences occurred within the time set out in
    those counts.  His doubt was not based on a concern that L.T. was not telling
    the truth about her memories of the sexual abuse.  Throughout his reasons, the
    trial judge made it clear that he found L.T. to be an honest witness.  In her
    evidence, L.T. said she could not be sure about times and dates.  The trial
    judge found that this weakness was understandable in view of the long period of
    time before she disclosed the abuse.

[92]

That the alibi evidence left the trial judge
    with reasonable doubt about the accuracy of L.T.s testimony concerning the
    dates of two counts did not preclude him from finding reliable the allegations
    corresponding to the other counts for which there was no alibi evidence.  That
    finding was open to him.

[93]

Next, the appellant submits that the trial judge
    erred in failing to adequately address the inconsistency in L.T.s evidence
    regarding the nature of abuse that occurred at the Dunn Avenue residence.  The
    trial judge was alive to this issue and took into consideration the
    inconsistency in his overall assessment of L.T.s credibility.  I see no error.

Issue #5: The Assessment of L.T.s Credibility

[94]

The appellant submits that the trial judge erred
    in concluding that L.T. was credible by improperly taking judicial notice of
    two facts.

[95]

I do not agree.  First, the trial judge
    commented that the reasons L.T. gave for delays in reporting the abuse were the
    very reasons why young victims of parental abuse do not complain.  L.T. had
    testified that she did not report the abuse for several years because she was
    concerned about the family break-up, she was ashamed and the appellant told her
    not to.

[96]

Before making this comment, the trial judge had
    quoted extensively from the Supreme Court of Canadas decision in
R. v. D.D.
,

2000 SCC 43, 148 C.C.C. (3d) 41.  In that decision, the Supreme Court
    referred to the same three factors as L.T. as reasons why young people delay in
    reporting sexual abuse.  The trial judges comment flowed directly from that
    case.  Moreover, the trial judge did not use L.T.s reasons for delay as
    confirmatory or supporting evidence.  Rather, he concluded only that those
    reasons were a neutral factor explaining the delay.  He was entitled to take
    that approach.

[97]

Second, the appellant argues that the trial
    judge erred when he observed that L.T.s poor marks in school were a classic
    symptom of parental sexual abuse.  The trial judges comment was made as an
    aside in the course of his discussion about why L.T. had not complained of the
    abuse, not as a reason for finding L.T. credible.  I see no error.

[98]

Finally, the appellant argues that the trial
    judge attached too much weight to L.T.s demeanour in accepting her evidence. 
    In one instance, he said her credibility is established by her demeanour. 
    While the use of the word establish, taken alone, may indicate an
    over-emphasis on demeanour, the trial judges reasons read as a whole disclose consideration
    of all the appropriate factors in his assessment of L.T.s credibility.  The
    trial judge set out in some detail the arguments of the defence that challenged
    her credibility and addressed them.  He found her evidence to be
    straightforward and clear.

[99]

I would not give effect to this argument.



DISPOSITION

[100]

For all the above reasons, I would dismiss the
    appeal.

RELEASED:  FEB 22 2012  DOC

D. OConnor A.C.J.O.

I agree John I. Laskin
    J.A.

I agree E.A. Cronk
    J.A.





[1]
He also found the appellant guilty of five counts of sexual assault but stayed
    those counts on the basis of the
Kienapple
principle.


