



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    that could identify the victim or a witness shall not be published in any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(iii) REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Slatter, 2018 ONCA 962

DATE: 20181129

DOCKET: C60596

Watt, van Rensburg and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sherilee Slatter

Appellant

Dan Stein and Andrew Menchynski, for the appellant

Gillian Roberts, for the respondent

Heard: June 11, 2018

On appeal from the conviction entered on December 12,
    2014 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting
    without a jury.

Fairburn
    J.A.:

I.       OVERVIEW

[1]

P.J. was the appellants foster child in 2005. S.L. was the appellants
    parents foster child in 2008. Following a judge alone trial, the appellant was
    convicted of sexual assault and sexual exploitation in relation to P.J. and
    sexual invitation in relation to S.L. She appeals against those convictions.

[2]

The appellant raises numerous grounds of appeal. She contends that:

(a)

the trial judges involvement
    in her former husbands trial created a reasonable apprehension of bias;

(b)

the evidence of a key prosecution
    witness was improperly elicited;

(c)

the trial judge failed to
    consider the impact of lost evidence;

(d)

her trial counsel provided
    ineffective assistance; and

(e)

the trial judge failed to
    consider important evidence, gave uneven scrutiny to evidence and engaged in stereotypical
    thinking.

[3]

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

II.      BACKGROUND

[4]

The appellant and her husband, Richard Fildey, were foster parents. P.J.
    lived with them between May and October 12, 2005. During most of that time,
    P.J. was fifteen years of age. After P.J. had left the appellants home, he
    told people that he had consumed alcohol and engaged in sexual intercourse with
    the appellant on multiple occasions.

[5]

After word about the sexual relationship between P.J. and the appellant
    started to seep out, the appellant gave a statement. Although the video recording
    of that statement was lost by the time of trial, the audio had been preserved
    and a transcript was available.

[6]

The appellant told the police that she was aware that P.J. had been
    telling people that they had been sleeping together, but that she had
    actually been raped by P.J. on three occasions while he was living in her home
    and her husband was at work. The appellant said that P.J. was stronger than she
    was and that she could not fight him off. She described how he would pin her
    down, penetrate her, and render her incapable of escape. She spoke of bruising
    that she incurred as a result of the alleged assaults. While she acknowledged
    that P.J. was a small teenager, about 100 pounds, she said that he was
    strong.  The appellant weighed close to 300 pounds at the time.

[7]

Three days following the appellants interview, the police interviewed
    P.J. He described the sexual intercourse as consensual. There is no dispute
    that there were two legal bars to consent in this case: (a) P.J. was fifteen
    years of age at the time that most of the conduct took place; and (b) the
    appellant stood in a position of trust toward P.J. Accordingly, there is no
    dispute that if P.J. and the appellant had sexual intercourse, and he did not
    sexually assault her, that she was guilty of sexual assault and sexual exploitation.
    No charges were laid in 2005 and the investigation was closed.

[8]

By 2008, the appellant had separated from her husband, Richard Fildey,
    after which she moved into her parents home on a part-time basis. Fifteen-year-old
    S.L. was living with the appellants parents at that time. S.L. testified that
    the appellant invited S.L. into her bedroom one day, gave her alcohol and
    encouraged her to take off her pants and masturbate. S.L. testified that the
    appellant encouraged her to use a pink dildo. S.L. complied. The appellant
    masturbated beside S.L. on the bed. Following the masturbation, the appellant
    pulled a book out from under her bed and had S.L. sign a blood oath saying
    that they would never speak about the event.

[9]

The appellants boyfriend, Christopher Lozano, lived in California. He was
    watching S.L. and the appellant on his computer from that location. He
    testified that there was a camera on the appellants computer in her room. It
    was capable of sending a real-time image to his computer.

[10]

Although
    S.L. shared this experience with a few people over time, she did not tell the
    police until 2012. Around that same time, the police again interviewed P.J. Charges
    were then laid.

III.     ANALYSIS

[11]

I
    will first address the claim relating to a reasonable apprehension of bias. I
    will then consider the appellants suggestion that Christopher Lozanos
    evidence was improperly elicited, after which I will examine the appellants
    position respecting the lost evidence. As those issues overlap with the
    ineffective assistance of counsel claim, I will next deal with that claim. I
    will conclude by considering the alleged errors in the trial judges reasoning
    process.

(a) The Reasonable Apprehension of
    Bias Claim: There was No Reason for the Trial Judge to Recuse Himself

(i)    Overview

[12]

The
    trial judge had previously presided over a trial involving the appellants
    former husband. Fildey had been convicted in that judge alone trial of sexually
    assaulting a former foster child of the couple. The appellant played no part in
    her ex-husbands trial. Fildey had testified and denied the offence. In finding
    him guilty, the trial judge had rejected Fildeys evidence, finding it
    incredible.

[13]

The
    appellant maintains that the trial judge should not have presided over her
    trial because there was a reasonable apprehension of bias arising from the fact
    that: (a) Fildeys trial had raised similar factual and legal issues to those
    raised against the appellant; and (b) the trial judge was required to consider
    Fildeys credibility in the appellants trial. I disagree.

[14]

Judicial
    impartiality lies at the core of our justice system. There is a strong
    presumption in favour of impartiality, one that is not easily displaced:
Yukon
    Francophone School Board, Education Area #23 v. Yukon (Attorney General),
2015 SCC 25, [2015] 2 S.C.R. 282, at para. 25. See also:
R. v. Nero
,
    2016 ONCA 160, 334 C.C.C. (3d) 148,

at para. 30;
Committee for
    Justice and Liberty v. Canada (National Energy Board),
[1978] 1 S.C.R. 369,

at p. 395. To rebut that presumption and show a reasonable apprehension of
    bias, the moving party has a high burden of proving the claim:
R. v. S.(R.D.)
,
    [1997] 3 S.C.R. 484,

at

para. 114;
Yukon,
at para.
    26. Substantial grounds are required to displace the presumption of
    impartiality:
S.(R.D.),
at para. 112;
Nero,
at para. 30.

[15]

To
    establish a reasonable apprehension of bias, the moving party must demonstrate
    that it is a reasonable claim, one that would be held by reasonable and
    right-minded persons applying themselves to the question and obtaining the
    required information about it:
Nero,
at para. 29. The question is,
    what would an informed person, viewing the matter realistically and
    practically  and having thought the matter through  conclude:
Committee
    for Justice and Liberty,
at p. 394;
R. v. Dowholis,
2016 ONCA
    801, 133 O.R. (3d) 1, at paras. 18  23.

(ii)    The Fact of Having Presided Over Fildeys
    Trial

[16]

The
    presumption of impartiality prevails in this case. The fact that the trial judge
    had previously presided over Fildeys trial did not, in and of itself, deprive
    him of the ability to preside over the appellants trial. There were no
    allegations made against the appellant in the former trial and she did not
    testify. The trial judge had never been called upon to adjudicate on her role
    in any alleged misconduct. Nor had the trial judge been previously called upon
    to consider the appellants conduct or her credibility or reliability as a
    witness.

[17]

Importantly,
    no one suggested that the trial judge could not preside simply because he had
    presided at the earlier trial. Defence counsel stated he was content to have
    the trial judge hear the case.

[18]

From
    the outset, the issue was only whether the appellants former husband would
    testify at the appellants trial. If so, the trial judge self-identified that
    there may be a problem with him presiding because he had previously opined on
    Fildeys credibility. That was the nub of the issue and the one that both
    parties and the trial judge focused on from the outset. The fact that trial
    counsel did not ask the trial judge to recuse himself simply on the basis that
    he had presided over Fildeys trial belies the claim of an appearance of bias:
R.
    v. Curragh Inc.,
[1997] 1 S.C.R. 537, at para. 11. I would not accede to
    that submission now made on appeal.

(iii)   The Trial Judge Did Not Consider Fildeys
    Credibility

[19]

I
    will now consider the appellants second submission, that there was an
    appearance of bias arising from the fact that, even though Fildey did not
    testify, the trial judge was still called upon to assess his credibility.

[20]

When
    discussing the ineffective assistance of counsel claim, I will address the circumstances
    surrounding my conclusion that Fildey was hostile to the appellant by the time
    of trial and would not have made a good defence witness. For present purposes, what
    is important is that Fildey never took the stand at the appellants trial.

[21]

Even
    so, the Crown agreed to the admission of a hearsay statement made by Fildey to
    the police in 2005, shortly after the appellant had spoken to the police and
    told them that P.J. had sexually assaulted her. Although Fildeys audio statement
    was missing by the time of trial, the police officer who took that statement
    was able to recall what Fildey had said. On the agreement of Crown and defence
    counsel, the following hearsay statement was admitted for the truth of its
    contents. The officer who took the statement testified that Fildey had told him
    that:

(a)     he had
    noticed bruises on his wifes arms;

(b)     P.J.
    was a strong little bugger or something like that; and

(c)     he
    learned about the allegations from his wife around the dates of October 24, 23
    for the first time.

[22]

The
    police officer confirmed in cross-examination that he had no recollection of Fildey
    saying that P.J. had told him about the sexual contact between P.J. and the
    appellant.

[23]

The
    appellant maintains that, even though Fildey did not testify, the admission of
    his hearsay statement required the trial judge to assess his credibility. She
    says that Fildeys credibility was in issue because there was a crucial
    conflict between Fildey and P.J.s evidence.

[24]

The
    appellant contrasts Fildeys hearsay statement, about being told about the
    sexual conduct by his wife, with P.J.s testimony that he told Fildey. The
    appellant argues that the two versions of evidence on that subject cannot
    co-exist. She says that either Fildey or P.J. were lying about who told Fildey and
    that this required the trial judge to reconcile the credibility issue,
    heightening the concern over the purported, reasonable apprehension of bias.

[25]

I
    reject this submission for three reasons.

[26]

First,
    I do not agree that Fildeys hearsay statement and P.J.s evidence cannot co-exist.
    Fildey may well have first been told by the appellant about the sexual conduct
    with P.J. and later told about the events by P.J. The fact that the police
    officer who testified about Fildeys statement had no recollection of Fildey saying
    that P.J. told him about the sexual conduct, does not mean that P.J. did not
    tell him. It only means that Fildey did not mention that to the police officer.
    Accordingly, there is nothing inherently inconsistent between Fildeys
    statement and P.J.s evidence. As such, there was no credibility issue to
    resolve.

[27]

Second,
    although initially described as a hearsay statement admitted for the truth of
    its contents, the parties and trial judge ultimately treated Fildeys statement
    as if it were an agreed statement of fact. For instance, in referring to the appellants
    bruising in his closing submissions, defence counsel said that it was admitted
    by the Crown so that Your Honour doesnt have to do any weighing. The trial
    judge responded, thats right.

[28]

Finally,
    the parties did not ask the trial judge to assess Fildeys credibility. Nor did
    he. The reasons for judgment are silent on any such credibility assessment.

[29]

There
    was no apprehension of bias created by the trial judge presiding over the trial
    or by him considering Fildeys hearsay statement.

(b) Treatment of Christopher Lozanos Evidence

(i)    Overview

[30]

The
    appellant was originally charged with three offences in relation to the S.L.
    incident: (a) sexual invitation; (b) conspiracy to commit sexual assault; and
    (c) distribute child pornography. The sexual invitation count involved the
    suggestion that the appellant encouraged S.L. to remove her clothing and
    masturbate on the appellants bed. The conspiracy allegation involved the
    suggestion that the appellant came to an agreement with Christopher Lozano, who
    resided in California at the time, about what was to take place with S.L. The
    distribution of child pornography charge related to the allegation that the
    offence was caught on camera and Lozano watched on his computer as it was
    occurring. On the basis of Lozanos evidence, the appellant was acquitted on
    the conspiracy and distribution of child pornography counts.

[31]

Lozano
    testified at the appellants trial by way of video link. He was in California
    at the time. His evidence was confusing and contradictory at best. The
    appellant challenges Lozanos evidence on two bases: (a) the Crown did not
    follow the correct procedure in attempting to refresh Lozanos memory; and (b) the
    trial judge and Crowns comments about the existence and effect of Lozanos
    induced statement to the police created unfairness.

[32]

I
    do not agree that any unfairness arose from how Lozano was examined or treated
    during his testimony.

(ii)    Background Facts

[33]

In
    order to understand Lozanos evidence, it is first helpful to briefly review
    S.L.s evidence. She testified that the appellant invited her into the
    appellants bedroom and gave her a number of vodka drinks over a short period
    of time. The appellant spoke with her boyfriend, Chris, on the phone. According
    to S.L., the appellant then used a webcam to make a connection with Chris who was
    in California at that time.

[34]

The
    appellant removed her pants and asked S.L. to do the same. The appellant then
    asked S.L. to masturbate using a pink dildo. S.L. complied. According to S.L.,
    she and the appellant masturbated side-by-side on the appellants bed. S.L.
    said that she could see a shadow of the appellants boyfriend on the computer
    at the end of the bed. According to S.L., she could see that he was
    masturbating at the same time that they were.

[35]

At
    the time of trial, Lozano was on parole for an unrelated matter involving having
    touched a child under 14 years of age for a sexual purpose. He testified that
    he knew S.L. because he had met her shortly after the offence, when he visited
    the appellant at her home in Ontario. S.L. testified that she had met Chris
    when he visited at the appellants parents home a few weeks after the webcam
    encounter.

[36]

During
    his examination-in-chief, Lozano acknowledged that he saw S.L. masturbating on
    the appellants bed, but he was hazy on many matters, including: whether he had
    seen S.L. and the appellant drinking alcohol on the appellants bed; the layout
    of the appellants room; and whether the appellant and S.L. were masturbating
    on the bed at the same time.

[37]

The
    trial Crown sought to refresh Lozanos memory with the use of his police
    statement and preliminary inquiry evidence. He does not appear to have had the
    transcripts in front of him, so the trial Crown read out the passages she
    wished to bring to his attention. Although Lozanos memory improved somewhat
    with the use of those passages, he maintained that he was still experiencing difficulty
    remembering the details surrounding the event.

[38]

Lozano
    eventually expressed how nervous and stressed out he was, explaining that
    he was not trying to be difficult. The Crown asked to address the court in
    Lozanos absence. Before muting the microphone, Lozano requested that the Crown
    explain what had earlier been discussed out of court.  That request was
    denied.  Lozano then requested permission to ask a question. The trial judge
    granted that request, after which Lozano expressed his concern that you guys
    are going to turn on me and come and have me arrested and charged for all
    this.

[39]

The
    trial Crown then asked permission to assist the court by explaining. She said
    that Lozano had provided an induced statement, meaning that if he told the
    truth he would not be prosecuted. Lozano expressed concern that the agreement
    was not 100 percent ironclad, after which the trial judge said:

It is now on the record that essentially there was an agreement
    entered into between you on the one side and the Office of the Crown Attorney 
    [that] in return for your testimony the Office of the Crown Attorney has agreed
    not to proceed with any criminal charges against you based on your evidence.
    Thats on the record here.  And I can tell you that thats likely as good as
    gold.

[40]

Lozanos
    memory problems continued. Accordingly, Crown counsel again asked to address
    the court in Lozanos absence. The Crown said that she wished to proceed with
    an application under s. 9(2) of the
Canada Evidence Act
, R.S.C. 1985,
    c. C-5

to demonstrate the witness adversity. As the Crown would
    need to play Lozanos 50-minute video statement, the logistics would have to be
    worked out and an adjournment of Lozanos evidence was inevitable because there
    was not sufficient time to coordinate the matter that day.

[41]

Defence
    counsel acknowledged that the Crown had been attempting to refresh Lozanos
    memory and that, if Lozano had been present in the courtroom, the Crown
    probably would have proceeded earlier with the s. 9(2) application. The trial
    judge proposed that he speak to Lozano and give him a roadmap of what is
    likely to happen. Both counsel agreed with the trial judges proposal.

[42]

When
    Lozano was linked back into the courtroom, the trial judge explained to him that
    there may be good and valid reasons for the apparent difference between Lozanos
    police statement and his evidence at trial. It may have arisen from his loss of
    recollection or from a concern over the possible adverse impact of his
    evidence on his future. The trial judge reinforced that the witness could take
    to the bank the agreement with the Crown not to prosecute him for anything
    he said in court and that there would be potential repercussions here if the
    Crown Attorney were to disregard or ignore that undertaking given in good
    faith.

[43]

The
    trial judge went on to explain the procedure that applies when a witness gives
    evidence that is inconsistent with his earlier statements, including that the
    Crown might play his video statement and that he could be found adverse and
    cross-examined by the Crown. If that procedure were to be invoked, Lozano would
    have to return to complete his evidence on another day.

[44]

The
    Crown then continued her examination and Lozano testified to the events
    involving S.L., including that: the appellant had told him on the phone that he
    would see two girls making out; he saw S.L. masturbating on the bed; he could
    not recall where the appellant was during that time; he thought that S.L. and
    the appellant were lying next to each other on the bed masturbating; and that
    it all came to an end when the appellant shut the camera off.

[45]

During
    cross-examination, Lozano resiled from a good deal of his evidence in-chief. He
    also provided evidence that was in direct conflict with S.L.s version of
    events. For instance, he said: he did not have a webcam and so there was no way
    for anyone to see what he was doing; he did not see a dildo being used; he
    could not be certain that he saw S.L. masturbating because of the position of
    the webcam that did not capture the face of the person he saw; and he only saw
    one person masturbating.

[46]

In
    the end, Lozanos evidence left the trial judge with a reasonable doubt about the
    conspiracy and distribution of child pornography counts. He was acquitted on
    those counts.

(iii)   Lozanos Memory was Refreshed Using a Fair
    Procedure

[47]

The
    appellant claims that the trial judge erred by permitting Lozanos memory to be
    refreshed in the manner pursued by the trial Crown. Specifically, the appellant
    objects to the Crown having: (a) failed to ask Lozano if he wanted some assistance
    with recalling the events; (b) read out passages from Lozanos prior statement
    and preliminary inquiry evidence; and (c) failed to proceed to a s. 9(2) application.
    Although I agree that, as acknowledged by the respondent, the steps taken to
    refresh Lozanos memory did not follow a textbook approach, I disagree that any
    unfairness resulted from the procedure followed. That procedure made sense in
    the circumstances of this case.

[48]

Before
    using the prior statement and preliminary inquiry testimony to refresh Lozanos
    memory, counsel should have elicited from him that he thought those documents
    would assist him in reviving his memory. Nothing turns, though, on the fact
    that the Crown did not first elicit Lozanos view on that subject.

[49]

Lozano
    had clearly and unequivocally expressed his failure to remember many of the
    details involving the S.L. incident. His evidence was riddled with comments
    like: I dont remember, I dont remember exactly, I dont recall, I
    guess. He later expressed his frustration and said that he was trying his best
    to remember. The documents used to refresh his memory, a prior police statement
    and prior evidence, are standard tools used to refresh memory. In these
    circumstances, there can be little doubt that had Lozano been asked whether he
    wanted some assistance in refreshing his memory, he would have accepted the
    offer and it could have been done.

[50]

The
    appellant says that Lozanos prior statement and evidence could not have been
    used for purposes of past recollection recorded or otherwise because they
    lacked a contemporaneous quality.

[51]

With
    respect, there is no suggestion that the evidence elicited from Lozano was past
    recollection recorded. Lozanos attention was taken to his prior statements by the
    Crown and the relevant procedure was explained to him by the trial judge. Ultimately
    Lozano provided his present recollection of the material events in examination-in-chief.
    The prior statements were not made exhibits at trial or otherwise admitted into
    evidence, and were not relied upon for the truth of their contents by the trial
    judge.

[52]

Where
    a witness professes a genuine absence of memory at the time of testifying, but
    can recall giving an earlier truthful statement, the earlier statement may be
    admitted as an exception to the hearsay rule provided certain conditions are
    met:
R. v. Fliss
,

2002 SCC 16, [2002] 1 S.C.R. 535, at para.
    63. Those conditions, among them the need for the prior statement to have been
    made within a reasonable time of the event that is documented in the statement,
    exist because the witness no longer has a recollection that can be scrutinized
    in cross-examination.

[53]

There
    is no temporal consideration associated with the statement when seeking to use
    a prior statement to refresh a witness memory or proceed with an application
    under s. 9(2) of the
Canada Evidence Act
:
Fliss,
at para. 45;
R. v. Coffin
(1956), 114 C.C.C. 1 (S.C.C.) at p. 22;
R. v. Taylor
,
    2015 ONCA 448, 325 C.C.C. (3d) 413, at paras. 43  51.  Where the witness then
    testifies to a present recollection of the material events, the witness has
    provided evidence in the normal course, and that evidence can be appropriately
    scrutinized through cross-examination.  That is what occurred here, and Lozano
    did indeed resile from several statements made in examination-in-chief. 
    Acquittals followed.

[54]

Accordingly,
    the fact that Lozano was not first asked whether he wanted assistance in
    refreshing his memory, is neither here nor there. If he did not want assistance
    by having his memory refreshed, the matter would have moved to a cross-examination
    under s. 9(2) as earlier requested by the Crown. Either way, Lozano would have
    had his prior statement and evidence put to him.

[55]

The
    appellant also claims that he suffered prejudice when the trial Crown read out
    the passages from his prior statement and evidence. Again, while the chosen
    methodology to refresh memory did not follow a textbook approach, it was a fair
    and practical approach, particularly in light of the fact that Lozano was a
    hesitant, difficult witness, testifying by video link from California.

[56]

Indeed,
    the fair manner of proceeding is clear from defence counsels observations on
    the record. While he objected to certain aspects of the Crowns approach,
    including the accuracy of the transcript from the police interview, defence
    counsel said that he had no issue with how the trial Crown was proceeding to
    refresh Lozanos memory. Although a document used to refresh a witness memory
    should be read silently by the witness, so that the trier of fact is not privy
    to its contents, that was not possible in this case because Lozano does not
    appear to have had the documents before him in California.

[57]

Given
    that this was a judge alone trial, the most efficient way to proceed was the
    one chosen by Crown counsel and the one that seemed sensible to the defence. As
    the Supreme Court has emphasized, trial judges should use their case management
    powers to minimize delay and implement more efficient procedures:
R. v.
    Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 36  39.  The trial
    judge here did so.

[58]

In
    addition, as evidenced by the reasons for judgment, the trial judge was not
    inappropriately swayed by the procedure used to refresh Lozanos memory.
    Indeed, given the success that defence counsel achieved in cross-examining
    Lozano, having him resile from the core elements of what he had testified to
    in-chief, the trial judge acquitted the appellant on two of the three S.L.
    counts. The only count on which the appellant was convicted arose from S.L.s
    evidence and not from anything that Lozano said.

[59]

In
    light of the logistics involved, the consent of counsel, the hesitance of the
    witness, and the fact that this was a judge alone trial, I see no prejudice resulting
    from the failure to follow the proper procedure for refreshing Lozanos memory.
    The trial judge managed this issue in a sensible way. No unfairness resulted.

(iv)   The Comments About the Induced Statement

[60]

The
    appellant maintains that the trial judge erred by: (a) allowing the Crown to
    effectively give evidence about the agreement that had been made between the
    Crown Attorney and Lozano; (b) commenting on that agreement; and (c) providing
    Lozano with a roadmap that is said to have encouraged Lozano to deliver his
    lines. I disagree.

[61]

The
    Crown provided appropriate context in the course of submissions to the trial
    judge regarding how to address Lozanos testimony. The Crown only commented
    upon the existence of the agreement because Lozano first expressed concern about
    being arrested and charged for all of this. Lozano expressed that he was
    sorry and wanted to be of more help. He had a question and the trial judge
    was prepared to hear that question and determine whether it could be answered.
    It was only at that point that Lozano said he was worried about being charged.
    The Crown then explained to the court that Lozano had given an induced
    statement and had been promised that he would not be prosecuted if he told the
    truth.

[62]

The
    appellant maintains that by saying that Lozano had promised to tell the truth
    in exchange for a promise not to prosecute him, the trial Crown inappropriately
    vouched for Lozanos story. I disagree with that suggestion.

[63]

Although
    this might have been a problematic statement if made before a jury, this was a
    judge alone trial. In challenging circumstances, with a witness testifying from
    afar and on issues that could incriminate him, the Crown was simply providing
    the trial judge with the information he needed to exercise his trial management
    powers. In order to understand how to proceed with the hesitant witness, the
    trial judge first needed to know what the problem was and the attendant risk to
    the witness. In the circumstances of this case, I see no difficulty with what
    the trial Crown said.  It was accurate on the key point. Lozano had provided an
    induced  meaning an involuntary  statement and the Crown could not use that
    evidence to incriminate him.

[64]

Although
    the Crown mistakenly told the court that the agreement was between the Crown
    and Lozano  when in fact it was between the police and Lozano  she was
    correct that Lozano had provided an induced statement.

[65]

As
    previously explained, Lozano expressed concern over whether the agreement was
    binding, to which the trial judge responded that it was likely as good as
    gold. Later the trial judge said that Lozano could likely take it to the
    bank.   The appellant now claims that the effect of the trial judges
    statement was to say to the appellant, with the force of judicial authority:
    deliver your lines and you wont be prosecuted. Dont deliver your lines and
    you will. The appellant says that the trial Crown supplied the lines. This is
    said to have prejudiced the appellants right to a fair trial. I disagree.

[66]

In
    an effort to assuage Lozanos concerns, and move the trial along, the trial
    judge simply said that nothing Lozano said could be used against him. That was
    a legally and factually correct statement. The trial judges comments simply
    acknowledged the involuntary nature of the statement and evidence.

[67]

Moreover,
    the fact of the inducement was never going to be a secret to the trial judge
    because the defence used it in cross-examining Lozano. Defence counsel
    highlighted the fact that Lozano believed that as long as he cooperated he
    would not get into trouble. In his closing submissions, defence counsel argued
    that the inducement, combined with the fact that Lozano was on parole, left
    Lozano thinking that he should cooperate with the police. In other words, the
    defence used the induced statement as a way of attempting to shake the trial
    judges confidence in Lozanos evidence. As it turned out, that strategy
    resulted in two acquittals.

(v)   Conclusion

[68]

I
    see no error, unfairness or prejudice arising from the manner in which Lozanos
    evidence was elicited.

(c) The Lost Evidence Claim

[69]

The
    appellant maintains that the trial judge erred by failing to consider the
    impact of the appellants lost 2005 videotape and Fildeys audiotape on the
    burden of proof. Although counsel raised the potential for a lost evidence application
    on the eve of trial, his request to adjourn was denied and no such application
    was brought.

[70]

In
    his closing submissions, though, counsel raised the effect of the absence of a
    video recording of the appellants statement to the police. Counsel emphasized
    that the trial judge was at a disadvantage because he did not have the ability
    to see the appellants emotional reaction to what she was telling the police
    about having been sexually assaulted by P.J. The appellant maintains that the
    trial judge did not consider the impact of that lost evidence on the result.

[71]

I
    would reject the appellants position for three reasons.

[72]

First,
    the trial judge is presumed to have understood the burden of proof and that a
    reasonable doubt could arise from the absence of evidence:
R. v. Morrissey
(1995),
    22 O.R. (3d) 514 (C.A.), at paras. 27  30. There is nothing in his reasons to
    suggest that he misunderstood this concept. There is no requirement that the
    trial judge discuss each piece of evidence on any given point:
R. v. R.E.M.
2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 32, 43  45, 64;
R. v. Doodnaught
,
    2017 ONCA 781, 358 C.C.C. (3d) 250, at paras. 80  81.

[73]

Second,
    the police officer who took the appellants statement testified and the audio
    of the interview was played in full. The appellant chose not to ask the officer
    any questions about her demeanour during the interview. That officer could have
    filled any potential gaps in the evidence that may have assisted in sorting out
    the demeanour question, yet the defence chose not to inquire. The failure to
    ask the officer those questions suggests that the appellant might not have been
    emoting during the police interview in a way that would be of assistance to her
    when assessing her version of events.

[74]

Finally,
    demeanour evidence has taken on a lesser role in recent years. It is merely one
    factor to be considered in assessing credibility and not to be given undue weight:
R. v. Rhayel,
2015 ONCA 377 at paras. 81  89. Indeed, juries are
    commonly instructed to this effect.

[75]

As
    for the lost audio from the Fildey interview, it was even more benign. As will
    be discussed shortly, Fildeys lost audio statement actually enured to the
    appellants benefit because it led to the admission of Fildeys hearsay
    statement for the truth of its contents. Given Fildeys hostility toward the
    appellant by the time of trial, the admission of that statement meant that his evidence
    got before the court in circumstances where it would not have otherwise been
    available.

[76]

The
    trial judge did not err in failing to mention the appellants lost video
    statement or Fildeys lost audio statement.

(d) Ineffective Assistance of Counsel Claim

(i)    Overview

[77]

The
    appellant claims that his trial counsel provided her with ineffective
    assistance. She says that counsels substandard performance is demonstrated in
    five distinct ways:

(a)     the
    failure to cogently object to the trial judge presiding over the trial;

(b)     the
    failure to object to how Lozanos evidence was handled;

(c)     the
    failure to bring a s. 7 lost evidence motion;

(d)     the
    failure to show how Lozanos evidence was tainted by a leading police statement;
    and

(e)     the
    failure to lead evidence relating to the size of the appellants bed.

[78]

I
    will first address the legal principles involved with an ineffective assistance
    of counsel claim and then move on to consider each of the appellants five
    criticisms of trial counsels performance.

(ii)    The Appellants Burden on an Ineffective
    Assistance Claim

[79]

The
    appellant must meet a significant threshold in attempting to show that trial
    counsel was ineffective. She must establish three things:

(a)     the
    facts on which the claim is based;

(b)     that
    the representation was actually incompetent; and

(c)     that
    the representation resulted in a miscarriage of justice, either by virtue of an
    unreliable verdict or an unfair trial.

[80]

Counsels
    conduct is to be considered in light of the circumstances operating at the time
    that decisions were made. Deference is owed to counsels performance and there
    is a strong presumption that counsels conduct fell within the wide range of
    reasonable professional assistance:
R. v. B.(G.D.),
2000 SCC 22, [2000]
    1 S.C.R. 520, at para. 27;
R. v. L.H.E.,
2018 ONCA 362, at paras. 6  7.

[81]

Where
    a miscarriage of justice is said to lie in an unreliable verdict, the appellant
    must show that there is a reasonable probability that the verdict would have
    been different had the appellant received effective assistance:
R. v.
    Cubilan,
2018 ONCA 811, at para.
8;
R. v. Archer
(2005),
    202 C.C.C. (3d) 60 (Ont. C.A.), at para.
120. Where an unfair trial is
    alleged, the appellant must show that he or she was deprived of a fair trial.

[82]

As
    a general rule, caution must be applied when it comes to allegations of
    ineffective assistance. Such claims are easily made and convictions would be
    rendered all too ephemeral if they could be set aside upon the discovery of
    some deficiency in counsels defence of an accused:
R. v. Joanisse
(1995),
    102 C.C.C. (3d) 35 (Ont. C.A.), at p. 58. It is not a time for Monday morning
    quarterbacking:
R. v. G.(D.M.),
2011 ONCA 343, at para. 107;
R. v.
    B.(G.D.),
at para. 27.

(iii)   Alleged Failure to Address Reasonable
    Apprehension of Bias

[83]

I
    have previously found that there was no reasonable apprehension of bias. Accordingly,
    trial counsel cannot have been ineffective in failing to ask the trial judge to
    recuse himself. Nor can the failure to ask for recusal have resulted in a
    miscarriage of justice.

[84]

Moreover,
    as previously discussed, the only reason to have the trial judge recuse himself
    was if Fildey were to testify. The appellant correctly observes that, from
    time-to-time, trial counsel expressed different views on whether he would be
    calling Fildey to testify.

[85]

There
    is no reason to explore the history of that matter because, as it turned out,
    Fildey did not testify because he was hostile to the defence. The best evidence
    of Fildeys hostility is found at the end of the Crowns case. It is at that
    point that trial counsel asked that the trial judge declare a mistrial because
    the defence was going to call Fildey. In a commendable exercise of trial
    management powers, the trial judge refused the mistrial and said that he would
    first hear from the witness so that he could assess any prejudice to the
    appellants fair trial interests. Fildey was brought to court, trial counsel
    met with him and then announced that he would not be calling Fildey to testify.

[86]

The
    fact that counsels position evolved with respect to Fildey is neither here nor
    there. If Fildey was not testifying, there was no basis for a recusal. Fildey
    was not testifying because he would not have helped the defence. There was
    simply no factual basis upon which to seek the trial judges recusal.

(iv)   Alleged Failure to Object to Lozanos
    Evidence

[87]

The
    appellants second suggestion, that trial counsel fell below the standard of
    reasonable professional assistance because he failed to object to the manner in
    which Lozanos evidence was elicited, cannot succeed. As before, trial counsel
    did not object because, in light of the circumstances, it made sense how the
    trial Crown proceeded to refresh Lozanos memory.

[88]

As
    well, the fact of the induced agreement was used by the defence as a strategy
    to attempt to shake the trial judges confidence in Lozanos evidence. Although
    the appellant may have rethought that strategy since the convictions were
    registered, that does not mean that the strategy reflects incompetence. To the
    contrary, it was a coherent approach and, as previously explained, one that
    appears to have contributed to two acquittals.

(v)   Alleged Failure to Bring Lost Evidence
    Application

[89]

The
    appellant says that her trial counsel was incompetent because he attempted to
    argue a
Charter
motion in his closing submissions, rather than file an
    application for
Charter
relief. She says that if he had actually
    brought a motion, the trial judge would have been in a position to consider the
    effect of the appellants lost video statement and Fildeys lost audio
    statement on the trial. Had the trial judge factored a
Charter
breach
    into account in his assessment of the evidence, the appellant says that the
    result might well have been different.

[90]

I
    disagree that counsel fell below the standard of reasonable professional
    assistance when he chose not to bring the lost evidence application. No
Charter
application was necessary. The absence of a motion did not deprive counsel
    of the ability to make the arguments he made. The fact is that the absence of
    the appellants video statement was not the critical piece of evidence that the
    appellant makes it out to be. Demeanour evidence was available both from the audio
    portion that remained, and, if asked, from the interviewing officer.  As
    explained above, demeanour evidence is merely one factor among many on which to
    assess credibility.

[91]

As
    for the lost audio statement from Fildeys interview, far from behaving
    incompetently, counsel was able to rely upon the lost statement to extract the Crowns
    consent to permit Fildeys hearsay statement to go in for the truth of its
    contents. But for counsels actions, there would have been no evidence from
    Fildey because he was hostile to the appellant by the time of trial.

(vi)   Alleged Ineffective Approach to Lozanos Leading
    Police Interview

[92]

Next,
    the appellant claims that trial counsel was ineffective by failing to elicit
    evidence regarding the leading nature of the Lozano police interview. I would
    reject that argument.

[93]

Trial
    counsel attempted to cross-examine Lozano on the fact that he simply went along
    with everything the police officer suggested because he did not wish to get in
    trouble. The fact that Lozano rejected that suggestion was beyond counsels
    control. Even so, counsel got Lozano to repeatedly acknowledge that the only
    reason he said that it was S.L. that he saw masturbating on the bed, was that
    the police had suggested that to him. This was an effective cross-examination
    and one that resulted in two acquittals.

[94]

As
    well, there is no reasonable probability that trial counsels conduct affected
    the reliability of the conviction on the remaining count involving S.L. The
    trial judge did not rely on Lozanos evidence to convict; rather, the trial
    judge believed S.L.s evidence on the point that she was asked by the appellant
    to masturbate: I have no difficulty accepting her evidence, as I have reviewed
    it.

(vii)  Alleged Failure to Elicit Evidence of the
    Appellants Bed

[95]

Finally,
    the appellant claims that trial counsel was ineffective in failing to utilize
    evidence about the size her bed at the time of the alleged incident involving
    S.L. The fresh evidence includes information about the size of the appellants
    bed at her parents home in 2008. It is said that she only had a single bed,
    the standard size of a single being about 38 inches wide.

[96]

Given
    the appellants size in 2008, she now argues that it would have been impossible
    for the masturbating to occur as S.L. described, with both S.L. and the
    appellant lying on the bed side-by-side. The appellant filed a picture of her
    lying on a single bed, showing that she takes up most of the surface. It is
    admitted the picture is of another bed, not the bed that the appellant had in
    2008.

[97]

It
    is said that the bed evidence would have contradicted S.L.s account. Indeed, the
    appellant argues that it would have been impossible for the offence to have occurred
    as described by S.L. on a single bed.

[98]

The
    respondent does not accept that the appellant had a single bed in 2008. The
    respondent asks the court to focus upon the picture in the materials of the
    appellants actual bed at the time of the S.L. incident. The respondent points
    out that a bedspread with squares on it covers the bed. The appellant was
    cross-examined for purposes of the appeal on that bedspread. She admitted that
    the squares are about five inches in width. The respondent maintains that when
    the squares are counted, the picture demonstrates that the appellants bed is
    actually about 50 inches wide.

[99]

Leaving
    to one side whether this constitutes permissible fresh evidence, I do not agree
    with the appellant that the bed evidence would have exonerated the appellant.
    To the contrary, bearing in mind the picture that is available of the
    appellants actual bed at the time, it may have served to support S.L.s
    evidence that the appellant had a double or queen size bed. The evidence is far
    from dispositive of innocence and the failure to use it does not suggest
    incompetence. Counsel had a clear and decisive strategy for how he was going to
    test S.L.s evidence. He was largely successful in that regard. There was no
    miscarriage of justice.

[100]

I would also reject
    this ground of appeal.

(e) Alleged Errors in the Reasons for Judgment

[101]

The appellant
    argues that the reasons for judgment contain three broad errors. I will review
    them in the order that the appellant addressed them in her factum.

[102]

Reasons for judgment
    fulfill specific purposes. They address why a case was decided a certain way,
    provide public accountability and permit effective appellate review:
R. v.
    Sheppard,
2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 4, 55. In
    considering the sufficiency of reasons as they relate to credibility findings,
    appellate courts must keep in mind that it is often difficult to express such
    findings. While significant inconsistencies in a witness evidence should be
    addressed, there is no requirement that trial judges address each and every
    inconsistency. Deference is owed to trial judges credibility findings unless
    they cannot be supported on a reasonable view of the evidence:
R. v.
    Burke,
[1995] 1 S.C.R. 474, at para. 7. See also:
R. v. Gagnon,
[2002]
    1 S.C.R. 621, at paras. 10  12, 19  20;
R.E.M.,
at paras. 32, 54 
    55;
Doodnaught,
at paras 76  81.

[103]

First, the
    appellant claims that the trial judge failed to consider the inconsistency
    between Fildeys hearsay statement (that he learned about the sexual activity
    from the appellant) and P.J.s evidence (that he told Fildey about the
    activity). The appellant says that the trial judge had an obligation to address
    and resolve that inconsistency.

[104]

For the reasons
    previously given, I disagree that the Fildey statement and P.J. testimony
    cannot co-exist. They are not inherently inconsistent. The trial judge did not
    error in failing to reconcile what was not even an inconsistency.

[105]

Second, the
    appellant argues that the trial judge gave uneven scrutiny to P.J.s and the
    appellants evidence. Specifically, the appellant argues that the trial judge
    noted that P.J.s evidence was replete with inconsistencies, particularly
    when compared with what he had previously told others. The trial judge reviewed
    many of those inconsistencies.

[106]

The appellant argues
    that, without resolving P.J.s credibility, the trial judge went on to review
    the veracity of the appellants evidence (her 2005 statement) and provided
    numerous reasons why he concluded that she did not tell the police the truth
    about having been sexually assaulted by P.J. The trial judge expressed that he
    was troubled by a number of matters, including that: (a) the appellant did
    not take steps to protect herself by locking her bedroom door; (b) she did not
    tell her husband or seek to have P.J. removed from the house; (c) she purchased
    gifts and alcohol for P.J. in the face of him having sexually assaulted her; and
    (d) she said that she did not want P.J. charged.

[107]

The appellant
    says that a number of the trial judges reasons for rejecting her evidence,
    such as the provision of gifts and alcohol, required the trial judge to have
    accepted P.J.s evidence. Yet the trial judge did not resolve P.J.s
    credibility before doing so.

[108]

The trial judge
    was not required to specifically address every credibility issue in the trial. Further,
    the object is not to show
how
the judge arrived at his or her
    conclusion, in a "watch me think" fashion. It is rather to show
why
the judge made that decision:
R.E.M.,
at paras 17  18 (emphasis in
    original). It is clear that, despite the fact that he acknowledged the
    weaknesses in P.J.s evidence, the trial judge believed many of the things that
    P.J. said. The trial judge was not required to spell out each of those findings,
    nor was he required to spell out the findings he made in a particular order.

[109]

It is important
    to recall the context for the appellants evidence. Much of the sexual conduct
    occurred while P.J. was fifteen years of age. Not only could P.J. not consent
    to the sexual activity at that age, but the appellant stood in a position of
    trust toward him. Having acknowledged the sexual activity, the appellants only
    defence was that P.J. had raped her. Despite the inconsistencies in P.J.s
    evidence, the fact is that P.J. said that there was sexual intercourse and,
    based on the appellants evidence, that fact was indisputably true.

[110]

I do not agree
    that the trial judge gave uneven scrutiny to the evidence at trial. As this
    court has repeatedly held, this argument is one that is difficult to make
    successfully, and for good reason:
R. v. Aird
, 2013 ONCA 447, 307
    O.A.C. 183, at para. 39;
R. v. Chanmany
, 2016 ONCA 576, 338 C.C.C.
    (3d) 578, at paras. 26  28.  Credibility findings are within the province of
    the trial judge.

[111]

The trial judge
    acknowledged the frailties in P.J.s evidence, but focused in on the issue in dispute:
    did he have a reasonable doubt arising from the suggestion that P.J. sexually
    assaulted the appellant? On that point, there was little to assess in P.J.s
    evidence. He was unshaken from the core allegations, and the trial judge had
    earlier listed the frailties that, on an objective view, went to peripheral
    matters.  The appellants evidence could, of course, undermine the path to
    conviction by being believed or by leaving the trial judge with a reasonable
    doubt. Considered in its proper context, it is without surprise that the trial
    judge focused upon that evidence.

[112]

Finally, the
    appellant argues that the trial judge erroneously relied upon stereotypes about
    sexual assault victims in rejecting the appellants evidence. For instance, the
    appellants evidence was rejected on the basis that she did not lock her door
    after the first and second alleged sexual assaults, nor did she tell anyone
    about the assaults. Nor did she want P.J. charged. The appellant argues that
    every sexual assault victim is unique and experiences the crime in a different
    way. The trial judge erred by applying stereotypical thinking to the
    appellants version of events.

[113]

Although I agree
    with the appellants suggestion that stereotypes must be avoided when it comes
    to considering how sexual assault victims will respond to the crime, that
    submission again loses its force when considered in the context of this case. The
    trial judge reached his conclusion, not on the basis of stereotypes, but on the
    evidence presented at trial, its internal and external coherence, and common
    sense inferences.

[114]

The trial judge
    did not resort to stereotypes, but to the actual relationship between the
    appellant and P.J., over whom she stood in a position of trust. She was in
    control of the home where he lived. She controlled who came into the home and
    who was allowed to live there. She did not merely stay silent after the alleged
    sexual assaults on her, the evidence was that she continued to actively seek
    out P.J., and provided him with alcohol. In contrast, P.J. was a troubled
    teenager who was a third of the appellants weight.

[115]

In the somewhat
    unique circumstances of this case, the trial judges impugned comments, such as
    the appellants failure to lock her door or tell anyone about the purported
    crimes being perpetrated upon her, made sense in light of her position of trust
    as a foster parent to her alleged repeated perpetrator.

[116]

I would not
    accede to this ground of appeal.

IV.     CONCLUSION

[117]

The appellant
    received a fair trial. She received competent representation. There was no
    miscarriage of justice. The reasons for judgment do not contain the errors
    alleged.

[118]

I would dismiss
    the appeal.

Released: DW Nov 29, 2018

Fairburn J.A.
I agree. David Watt J.A.
I agree. K. van Rensburg J.A.


