



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), (2.1), (2.2), (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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

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. Medford, 2021 ONCA 27

DATE: 20210118

DOCKET: C62998

Fairburn A.C.J.O., Watt and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Medford

Appellant

Sonya Shikhman, for the appellant

Jennifer A.Y. Trehearne, for the respondent

Heard: October 14, 2020 by video conference

On appeal from the conviction entered on
    April 29, 2016 by Justice Carole J. Brown of the Superior Court of Justice, with
    reasons reported at 2016 ONSC 2298.

Fairburn A.C.J.O.:


A.

OVERVIEW

[1]

This is an appeal from conviction on a number of
    counts, including sexual assault with a weapon and uttering a threat to cause
    bodily harm.

[2]

The complainant agreed to engage in sexual acts
    with a man in exchange for money. They went to a carport to fulfill that exchange.
    The complainant had never been to that location before.

[3]

She placed a blue condom on the mans penis and
    started fellating him. The complainant became frustrated when, in her view, the
    man was taking too long to complete the act. She decided that she needed to leave.
    The man thought otherwise. He removed the blue condom from his penis, threw it
    to the carport floor, pulled out a knife and threatened the complainant as
    follows: if I split you from your asshole to your back, maybe the open flesh
    will turn me on.

[4]

Although the complainant was a little foggy
    about the order of events that followed, she was clear that the same man she
    had been fellating, was the man who threatened her and then penetrated her
    vagina and bum area with his penis. He then strangled her into
    unconsciousness. When the complainant regained consciousness, she realized that
    she was naked and being dragged across the street by the same man. She started
    to scream for help.

[5]

A good Samaritan, Mr. Messelhi, heard the
    complainants cries for help. At around 2:30 a.m., he saw the complainant and
    assailant from his seventh-floor balcony. He yelled out to them and called for
    emergency assistance. The man fled the scene just before the police arrived.

[6]

While Mr. Messelhi was being interviewed by the
    police, a man by the name of Ashton Cater walked by where the complainant and
    assailant had been seen. Mr. Messelhi thought that Mr. Cater looked similar to
    the assailant. The police arrested Mr. Cater, but he was later excluded as a
    suspect on the basis of the DNA evidence found on the blue condom located on
    the floor of the carport.

[7]

It was only a few years later, after the
    appellants DNA was obtained in an unrelated matter, that the DNA on the blue condom
    was connected to him. The condom also contained the complainants DNA.

[8]

The appellant did not testify at trial, but
    accepted that it was his DNA on the condom. Through closing submissions, he acknowledged
    that he had engaged in a sexual act with the complainant in the carport on the
    night in question. His defence was that, after that sexual act finished, he
    left the complainant behind in the carport. On the appellants theory, some
    other man, likely Mr. Cater, must have come along after he had left the carport
    and attacked the complainant.

[9]

To get around the complainants evidence that
    she was attacked by the same man who wore the blue condom, the appellant said
    she was either confused or hallucinating as a result of the drugs and alcohol
    she had consumed prior to the attack. He also suggested that the complainant
    was just generally untruthful.

[10]

The trial judge rejected the defence theory as
    entirely speculative. She also accepted the complainants evidence as credible
    and reliable, ultimately concluding that a single perpetrator committed all of the
    acts, starting with the blue condom and ending with flight from the scene.

[11]

The appellant was convicted across all counts.
    He appeals from conviction on the basis that the trial judge erred:

(a)

in how she dealt with identification evidence;

(b)

in how she resolved credibility issues;

(c)

in how she approached the question of motive;
    and

(d)

in how she dealt with the burden of proof.

[12]

The appellant also argues that the verdict is
    unreasonable and that he suffered from the ineffective assistance of counsel at
    trial.

[13]

For the reasons that follow, I would dismiss the
    appeal.

B.

ALLEGED ERRORS RELATING TO IDENTIFICATION
    EVIDENCE

[14]

The appellant raises a number of concerns over
    how the trial judge dealt with the identification evidence. I would not accept
    any of these submissions. As with many of the other issues raised on appeal,
    the concerns expressed largely reflect an attempt to relitigate the trial.

(i)

Mr. Messelhis identification evidence

[15]

The appellant makes numerous complaints about
    how the trial judge dealt with Mr. Messelhis identification evidence. In
    particular, he objects to the fact that what Mr. Messelhi told the police about
    the assailants appearance and what he testified to in court was different. He
    says that the trial judge was duty bound to address and resolve each
    difference.

[16]

I do not intend to address each complaint that
    the appellant raises because, looked at in context, none of them can succeed.

[17]

The fact is that the trial judge accurately
    reviewed Mr. Messelhis evidence. She understood how it fluctuated in some ways
    from what he had previously said to the police. In the end, though, she concluded
    that she could not place any significant weight on Mr. Messelhis description
    of the assailant given his vantage point from the seventh-floor balcony across
    the street  [in the] middle of the night  [when] the lighting was poor. It
    was open to the trial judge, as the trier of fact, to reach this conclusion.
    And it is one to which I would defer.

[18]

Accordingly, Mr. Messelhis evidence about what
    the assailant looked like was largely neutralized by the trial judges
    conclusion that Mr. Messelhi was not in a position to make reliable
    observations. Therefore, even assuming (without suggesting) that there was some
    merit to the appellants submission that the trial judge failed to adequately
    deal with the witness alleged prior inconsistent statements, it would have had
    no impact on the outcome of the case.

[19]

In any event, the most significant alleged error
    made by the trial judge relates to what the appellant argues is her failure to
    resolve the fact that Mr. Messelhi told the police that the assailant was a
    black male, but in court suggested that the assailant was of mixed
    heritage. The appellant argues that the failure to resolve that inconsistency undermined
    the defence theory, particularly given that the appellant says Mr. Cater is
    black and that the appellant is closer to a mixed heritage.

[20]

This objection cannot succeed. The fact is that
    Mr. Messelhi told the 9-1-1 operator that the assailant was kind of black or
    mixed black. Therefore, there was no inconsistency between how Mr. Messelhi
    first described the assailant to the 9-1-1 operator and his evidence at trial,
    where he testified that there are different gradients of black and that when
    he says black, he includes brown. In these circumstances, there was nothing
    for the trial judge to resolve.

(ii)

Mr. Messelhi did not adopt his prior statement

[21]

The appellant also contends that the trial judge
    erred by failing to appreciate that Mr. Messelhi adopted a prior statement,
    where he is alleged to have told a police officer that he was 100 percent
    certain that Mr. Cater was the assailant. The appellant also contends that,
    even if Mr. Messelhi did not adopt his prior statement, the trial judge still
    erred because she failed to turn her mind to whether he had done so. I do not
    accept either of these submissions.

[22]

Mr. Messelhi testified in-chief that while he
    was being interviewed by the police, he saw a man walking by the crime scene
    and thought that the man looked like the assailant, but that the man also looked
    slightly different. (That man was Mr. Cater.) During cross-examination, defence
    counsel suggested to Mr. Messelhi that he had told the officer who was interviewing
    him that the man walking by was 100 percent the same man that he had seen
    attacking the woman. In my view, Mr. Messelhi did not adopt that prior alleged
    statement.

[23]

A witness only adopts a prior statement where
    the witness agrees, based upon present memory, that the statement is true. Only
    where that prior statement is adopted, does it become part of the witness
    evidence at trial, available to the trier of fact for the truth of its
    contents:
R. v.
McCarroll
, 2008 ONCA 715, 238 C.C.C. (3d) 404,
    at para. 39;
R. v. Candir
, 2009 ONCA 915, 250 C.C.C. (3d) 139, at
    para. 113;
R. v. Abdulle,
2020 ONCA 106, at paras. 136-38, leave to
    appeal to S.C.C. refused, 39175 (August 20, 2020);
R. v. Tat
(1997)
, 117 C.C.C. (3d) 481 (Ont. C.A.),
    at p. 493.

[24]

A review of Mr. Messelhis cross-examination
    demonstrates anything but adoption. While defence counsel repeatedly tried to
    have Mr. Messelhi adopt the alleged prior statement, he failed in achieving
    that goal. Here are some highlights from that exchange:

Q.  at the time you were 100 percent sure
    that that was the person because 

A. I  I was not. I was  again, it was
    someone that walked by that had similar characteristics.

Q. Okay.

A. But again, I dont believe that it was  I
    wasnt 100 percent 



Q. So if you told the police that the guy that
    they were investigating is the same guy 100 percent, thats obviously what you
    believed at the time, right? Im talking about at that moment.

A. Yeah. At the time they  they looked
    similar.



Q. Right. The only detail you gave them was
    thats the guy, 100 percent. Thats what you told them, right? Its in the
    notes.

A. I dont recall saying that

Q. Okay.

A.  to be honest with you. I recall pointing
     I recall pointing down to the  to the street level from my balcony.  I
    dont recall  Ill be honest with you, I dont recall saying, yeah, thats him
    100 percent.

[25]

Nothing in this exchange points toward adoption
    of the prior alleged statement. Indeed, it does not even point toward
    acknowledgement that the statement was made. In these circumstances, I see no
    error in the trial judges decision not to address the issue of adoption.

(iii)

There was no contemporaneous identification

[26]

The appellant also suggests that the trial judge
    erred by accepting Mr. Messelhis trial evidence regarding what he said the
    assailant looked like, instead of what he had previously told the police that
    the assailant looked like. He argues that a description contemporaneously made
    must be accepted over a description at trial.

[27]

I see no basis in law or on the record for this
    suggestion. Mr. Messelhi did not purport to identify the appellant in the
    courtroom and was never asked to do so. In any event, the trial judge did not
    prefer one version over the other. Indeed, as previously addressed, she
    discounted Mr. Messelhis identification evidence altogether because of the
    distance from which he was making his observations and the lighting conditions
    involved. It was open for her to come to that conclusion.

(iv)

Failure to resolve the height differential

[28]

The appellant also argues that the trial judge
    erred by failing to resolve another issue: that he is only five feet, five inches
    tall, which is much shorter than how Mr. Messelhi and the complainant described
    the assailant. Mr. Messelhi thought the assailants height was around six feet
    tall and the complainant thought his height was around the same as hers, about five
    feet, nine inches tall.

[29]

For the reasons already mentioned, given the
    limitations on Mr. Messelhis ability to make accurate observations, the trial
    judge resolved that she could place little weight on how he described the
    assailant. Accordingly, there was little need for the trial judge to resolve
    the difference between Mr. Messelhis description of the assailants height and
    the appellants actual height.

[30]

That is equally true when it comes to the
    complainants evidence about her assailants height, being about four inches
    taller than the appellants actual height. Although the trial judge did not squarely
    resolve that issue in her reasons, she was clearly aware of it as she adverted
    to that evidence in her reasons.

[31]

When considered against the factual backdrop of
    this case, it is understandable why the trial judge did not see a pressing need
    to resolve the difference. After all, it was agreed that the man in the blue
    condom was in fact the appellant. As the complainant said that the man who wore
    the condom was the same man who attacked her, she was describing the height of
    the man who wore the condom  that being the appellant.

[32]

Therefore, what was critical from an identity
    perspective was not that the complainant suggested that her assailant was
    around five feet, nine inches, but that she said that the man in the blue
    condom was the same man who attacked her. The reasons make clear that the trial
    judge accepted the complainants evidence on this point. Therefore, given the
    agreement that the appellant was the man in the blue condom, it can be inferred
    that the trial judge was satisfied that the complainant simply misjudged the appellants
    height.

(v)

Did the trial judge err by failing to consider
    circumstantial evidence?

[33]

The appellant points to four pieces of evidence
    that are said to have been overlooked by the trial judge, but that bolstered
    the identification of Mr. Cater as the assailant. I do not agree that the trial
    judge was under any obligation to specifically turn her mind to these pieces of
    evidence.

[34]

First, a wrapper from a box of gloves was found
    on the ground not far from where the complainant was dragged. That packaging
    matched packaging that was found in the bag that Mr. Cater was carrying at the
    time of arrest. The appellant argues that this piece of circumstantial evidence
    pointed toward Mr. Cater being the person who dragged the complainant across
    the road.

[35]

There was no suggestion that the assailant wore
    gloves during the attack. Nor is there any suggestion that these were rare or
    unusual gloves. While the packaging appears to have matched, it does nothing
    more than provide a tenuous link between Mr. Cater and the geographical area
    where the complainant was ultimately found. Of course, Mr. Cater was already
    associated to that area, being the area where he was arrested.

[36]

Second, the appellant points to the fact that
    Mr. Messelhi testified that the assailant was wearing a do-rag. Mr. Caters bag
    contained a black do-rag. The appellant again argues that this pointed toward
    Mr. Cater being the assailant.

[37]

The difficulty with this submission is that the
    trial judge believed the complainant that she was attacked in one continuous
    event, by the man who she said she had placed the blue condom on. The
    complainant did not think that her assailant was wearing any type of head
    covering. Her credibility was accepted by the trial judge.

[38]

Moreover, for reasons that I have already given,
    the trial judge discounted the accuracy of Mr. Messelhis observations as they
    related to the assailants appearance. It was open for her to do so. Thus, the
    fact that Mr. Cater had a do-rag in his bag did not advance the defence,
    particularly given that there was no evidence that he was wearing that do-rag
    at the time in question or, indeed, at any point during the night of the
    offence.

[39]

Third, the appellant argues that the trial judge
    erred by failing to consider what happened to a bicycle that the appellant was
    said to have had with him when he and the complainant went to the carport.

[40]

The complainant testified that her attacker brought
    a bicycle with him to the scene of the attack, but could not recall what
    happened to that bicycle. The police did not find a bicycle at the crime scene.

[41]

The appellant claims that the absence of a
    bicycle at the scene supported his position, as advanced only in oral
    submissions at trial, that he had left the carport on his bicycle and the
    complainant was later attacked by someone else. Of course, there was no
    evidence about the appellant leaving the carport after the initial sexual
    encounter because, as was his right, the appellant did not testify.

[42]

Therefore, at its highest, the evidence came
    from two sources: (a) the complainant who testified that her assailant had a
    bicycle at some point when they first met up; and (b) that the police did not
    see a bicycle around the scene of the crime. Against this factual record, the
    trial judge was under no obligation to resolve anything regarding the fact that
    a bicycle was not found at the crime scene.

[43]

Finally, the appellant claims that the trial
    judge erred by not addressing the length of time over which the attack was said
    to have taken place. The complainant said that she initially met the man around
    10:00 p.m. Yet the 9-1-1 call was not received until just after 2:30 a.m.
    According to the appellant, that means that the assault went on for about 4.5
    hours. He says that it defies common sense that the assailant would remain with
    the complainant while she was unconscious for that length of time. The failure
    of the trial judge to turn her mind to this issue is said to reflect error.

[44]

This argument was not put to the trial judge in
    closing submissions and therefore, it is with little surprise she did not
    address it. In any event, the complainant was clear that she did not know how
    long she was unconscious for. The appellant and complainant could have been
    together for a long period of time or the complainant could have been wrong
    about the time at which she first went to the carport. Indeed, as I will soon
    address, it appears that she was wrong about the timing.

C.

CREDIBILITY ISSUES

[45]

The appellant maintains that the trial judge erred
    by failing to turn her mind to details undermining the complainants
    credibility. In my view, the appellant is really asking this court to
    substitute its own view of credibility for that of the trial judge. There is no
    basis upon which to do so.

[46]

The appellant suggests that the complainant
    should be disbelieved because she said that, at one point, she was being
    dragged with her face on the pavement, yet she did not have facial injuries to
    match that evidence. This is incorrect. An officer noted a scrape or scrapes on
    her face and the nurse who saw the complainant after the incident noted a
    visibly red and swollen nose.

[47]

The appellant also suggests that the trial judge
    failed to address the discrepancy between the complainant and Mr. Messelhi as
    to whether the assailant was wearing a do-rag. This is said to have adversely
    impacted the complainants credibility. Not so. For reasons already given, the
    trial judge refused to place meaningful weight upon Mr. Messelhis evidence about
    the assailants description. In these circumstances, the differences between
    his evidence and hers, as to whether the assailant was wearing a do-rag, could
    not have impacted the complainants credibility.

[48]

The appellant also claims that the trial judge
    failed to properly consider the complainants level of intoxication at the time
    of the events. In doing so, she is said to have failed to understand that the
    complainant did not unequivocally reject the possibility of hallucinations. I
    do not agree.

[49]

The complainant was clear about what she had
    ingested prior to the events: alcohol, marihuana, and crack cocaine. She was
    equally clear that she was not hallucinating during the attack. Moreover, the
    trial judge was alive to the issue, specifically noting that the complainant
    was muddled about the order of events. Even so, it was open to the trial
    judge to conclude as she did, that being muddled about the order of events was
    not in any way determinative of the complainants credibility or reliability.

[50]

To the extent that the complainant may have had
    some gaps in her memory, her evidence makes clear why that was the case. As is
    clear from the transcript, the complainant was highly resistant to testifying
    and being required to recount the terrifying events that occurred almost five
    years before trial. In these circumstances, some gaps in memory may well be
    expected.

[51]

The complaint here is nothing more than a
    request to have this court reassess the complainants credibility. That was the
    job of the trial judge. I see no error in her approach and would defer to her
    findings.

D.

MOTIVE

[52]

The appellant argues in writing only that the
    trial judge erred by concluding that the complainant was credible because she
    had no motive to lie. He also claims that the trial judge erred in failing to
    find that the complainant did have a motive to lie, one that arose from the
    fact that she needed money for her next drug hit and the man she was
    fellating took the money back when she said she did not wish to complete that
    act. I would not accept either of these submissions.

[53]

First, the trial judge held that she was
    satisfied that [the complainant] had no exterior or ulterior motivation to lie
    and was attempting throughout to be truthful. I interpret the trial judges
    comments as doing nothing more than stating her conclusion that there was no
    motive to lie and, therefore, the complainants evidence could not be rendered
    suspect by virtue of any such suggestion. I do not read the trial judge as
    placing affirmative weight on the complainants evidence because of her
    conclusion that there was no motive to lie.

[54]

For the first time on appeal, the appellant says
    that the complainant had a motive to lie which arose from her upset that the
    man in the blue condom took his money back after she refused to complete the
    fellatio. I agree with the respondent that there are numerous difficulties with
    this theory, including that the alleged motive was never put to the complainant
    when she was testifying. It also runs contrary to her evidence, that she
    offered to give the man in the blue condom his money back  not that he stole
    the money back  when she decided she did not wish to complete the act.

[55]

I would not accede to this ground of appeal.

E.

BURDEN OF PROOF

[56]

The appellant also suggests that the trial judge
    reversed the burden of proof. In particular, he points to a passage in the
    lengthy reasons for judgment, where the trial judge found that the defence
    theory was speculative and unpersuasive given all the evidence. He seems to
    suggest that this passage demonstrates that the trial judge was requiring that
    there be actual evidence supporting the defence theory before it could succeed.
    I do not read the passage that way.

[57]

I start by observing that the trial judge
    accurately reviewed the burden of proof at the outset of her reasons. There is
    no complaint about how she did so. Therefore, the appellants objection is made
    in circumstances where the reasons for judgment demonstrate a correct summary
    of the legal principles pertaining to the burden of proof.

[58]

In my view, the impugned passage from the
    reasons for judgment demonstrates nothing more than the trial judges
    acknowledgement that the defence theory did not raise a reasonable doubt in her
    mind. She saw it as entirely speculative in nature, particularly because she
    accepted the complainants evidence that the same man who wore the blue condom
    (the appellant), was the same man who attacked her and dragged her across the
    street. There is nothing in the reasons to suggest that she applied the wrong
    burden of proof.

F.

THE REASONABLENESS OF THE VERDICT

[59]

The appellant claims that the verdict is unreasonable
    in these sense that a trier of fact could not have reasonably reached the
    conclusion that the trial judge reached. I do not agree.

[60]

Taking into account the totality of the
    evidence, the trial judges conclusion is one that a properly instructed trier
    of fact acting judicially could have reasonably rendered:
R. v. Mendez,
2018
    ONCA 354, at para. 21. At this stage of these reasons, to unpack the
    reasonableness of the verdict would risk serious repetition. Suffice to say
    that it was open for the trial judge to accept the complainants credibility as
    to the one, continuous series of events involving the same man who wore the
    condom, which man was the appellant.

G.

COMPETENCE OF COUNSEL

[61]

The appellant claims that his trial counsel was
    ineffective and that this resulted in a miscarriage of justice.

[62]

During oral submissions, the appellant focussed
    upon a few specific complaints involving trial counsels performance. I too
    will focus upon those complaints. First, though, I will address the operative
    legal principles when it comes to competence of counsel claims.

[63]

The burden falls to the appellant to establish
    the facts underpinning the claim of ineffectiveness. Those facts must address
    both the performance and prejudice components of the test. The performance component
    involves establishing how counsels representation was inadequate. The
    prejudice component involves establishing how those inadequacies resulted in a
    miscarriage of justice:
R. v. Cherrington,
2018 ONCA 653, at paras.
    25-27;
R. v. B. (G.D.)
, 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26;
R.
    v. Joanisse
(1995), 102 C.C.C. (3d) 35 (Ont. C.A.) pp. 59-62, leave to
    appeal refused, [1996] S.C.C.A. No. 347
.

[64]

The performance component requires the court to
    consider counsels conduct of the defence against a standard of reasonableness,
    one that includes a presumption that counsels conduct falls within a wide
    degree of reasonable professional assistance. Strategic tactical decisions
    should be viewed through a lens of deference, rather than a lens of hindsight.

[65]

The prejudice component is fulfilled where there
    is a miscarriage of justice arising from either some form of procedural
    unfairness or an unreliable result or both:
R. v. Shafia,
2016 ONCA 812,
    341 C.C.C. (3d) 354, at para. 177, leave to appeal refused, [2017] S.C.C.A. No.
    17.

[66]

The appellant claims that trial counsel was
    incompetent by failing to put to the complainant the original description she
    gave to the police of the assailant. She originally told the police that she
    thought that her attacker was six feet tall. That is said to more closely match
    Mr. Caters height than the appellants height.

[67]

On appeal, trial counsel has explained why he
    chose not to focus upon the first description given by the complainant as to
    her assailants height. Suffice to say that it was a strategic call on his part.
    I see no need to explore the underlying rationale for that decision given that,
    for reasons already set out, the complainants description of her assailants
    height did not matter to the end result in this case. This case turned on the
    trial judges acceptance of the complainants evidence that the man who wore
    the blue condom was her attacker. Accordingly, whatever height the complainant
    ascribed to the man in the condom, one thing was accepted at trial: the man in
    the condom was the appellant.

[68]

The appellant also points to the fact that the
    complainant told the police her assailant was carrying a bag. Counsel did not
    confront her with that previous statement. The failure to do so is said to
    reflect incompetence because of the fact that Mr. Cater was also carrying a bag
    when he was arrested.

[69]

Trial counsel acknowledges that, in hindsight,
    he ought to have put the complainants statement about the assailant carrying a
    bag to her. While that would have been better, in my view, the failure to do so
    changes nothing. The complainant did not tell the police anything about the
    appearance of the bag, what it looked like, or its size. Moreover, and again,
    there is no dispute that the man with the bag who the complainant met, on whom
    she placed the blue condom, was the appellant. In these circumstances, the
    circumstantial value of the bag is highly questionable.

[70]

The appellant also claims that his trial counsel
    was incompetent by failing to put to the complainant that she had described her
    attacker to the police as a black male. As before, that description is said
    to have matched Mr. Cater better than it matched the appellant.

[71]

It is true that counsel did not put that
    statement to the complainant, but the value of doing so would have been highly
    questionable. This is especially true given that three days after the attack,
    and a couple of years before the appellant was apprehended for this offence, in
    a detailed statement, the complainant told the police that her attacker had a light
    complexion, was mixed, half and half and with black in him. In these
    circumstances, a miscarriage of justice could not have resulted from the
    failure to put the earlier description to the complainant.

[72]

The appellant also suggests incompetence arising
    from the fact that counsel did not put to Mr. Messelhi his prior statement to
    the police, where he had told them that he was unsure about what the assailants
    hair looked like because he was wearing a do-rag. At trial, Mr. Messelhi
    suggested that he could see braids coming out from underneath the do-rag.

[73]

Again, trial counsel agrees that it would have
    been better had he put Mr. Messelhis prior statement to him. Even so, nothing
    turns on the failure to do so given that the trial judge discounted the value
    of Mr. Messelhis observations.

[74]

Finally, the appellant focusses on one alleged
    failure by the trial counsel that is said to be dispositive of a miscarriage of
    justice.

[75]

Trial counsel was aware from police notes that
    the police had observed a security video at a gas station, close to the scene
    of the crime, that showed someone who the police thought was the complainant
    walking with a man holding a bicycle. The mans identity was not discernable on
    the video. The video showed a time stamp of 1:46 a.m. (about 45 minutes before
    the 9-1-1 call).

[76]

The appellant argues that the failure of trial counsel
    to obtain that video and play it at trial demonstrates ineffectiveness. The
    appellant contends that the video would have undermined the credibility of the
    complainant who said that she met her assailant around 10:00 p.m. The video
    would have shown that, in fact, she met her assailant over three hours later in
    time.

[77]

Trial counsel admits on appeal that he knew of
    the existence of the video, but explains that he did not request a copy of the
    video out of a concern that it would undoubtedly assist the Crowns case. In
    trial counsels view, the longer the time between when the complainant and
    appellant first went to the carport and when Mr. Messelhi called 9-1-1, the
    greater the support for the defence theory that a second man came along and
    attacked the complainant after the appellant had left the scene. The video
    could undermine that theory by demonstrating very clearly that the complainant
    was simply wrong about the time that she and the appellant engaged in the
    sexual act in the carport. It would have taken what was, on the complainants
    evidence, an over 4-hour gap from beginning to end, and truncated it to about a
    45-minute window.

[78]

Trial counsels decision to avoid any steps that
    may highlight the importance of the video to the Crowns case was a tactical
    one and is entitled to deference.

[79]

In conclusion, while there are some aspects of
    counsels performance that in hindsight could have been better executed,
    perfection is not the standard:
Joanisse
, at p. 61. To the extent that trial
    counsel fell short in this case, it was on minor details that had no impact on
    the reliability of the verdict.

CONCLUSION

[80]

I would dismiss the appeal.

Released:
JMF 
JAN 18 2021

Fairburn
    A.C.J.O.

I
    agree David Watt J.A.

I agree Thorburn J.A.


