



WARNING

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

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue, and for greater certainty shall apply to the complainant and to
    any witness under eighteen years of age whose evidence was considered at trial
    or on the appeal. These sections of the

Criminal Code
provide:

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    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in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

(a)     any of the following offences;

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

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

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

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

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

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

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

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

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

486.6     (1)

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

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




COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. P.G., 2013 ONCA 520

DATE: 20130821

DOCKET: C54825

Rosenberg, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.G.

Appellant

Alan M. Buchanan, for the appellant

John A. Neander, for the respondent

Heard: March 4, 2013

On appeal from the conviction entered on February 15,
    2011 and the sentence imposed on December 5, 2011 by Justice Gregory M.
    Mulligan of the Superior Court of Justice, sitting with a jury.

Epstein J.A.:

I.        OVERVIEW

[1]

The appellant was convicted after a trial by judge and jury of sexual
    assault and was sentenced to twelve months imprisonment.  He appeals conviction
    and sentence.

[2]

In 2007, the appellant and the complainant met over the internet.  That
    summer they saw each other once.  They had sporadic contact by email and
    telephone over the following two years.  There was no intimacy between them. 
    In the summer of 2009, the complainant was experiencing personal difficulties. 
    As a break from these difficulties, the appellant invited the complainant to
    have dinner with him and his twelve-year-old son on a boat the appellant was
    using.

[3]

The appellant and the complainant socialized over drinks and then had
    dinner with the son.  After dinner the appellant and the complainant retired to
    one of the berths in the boat.  Sexual activity ensued.

[4]

The prosecution turned on the issue of consent.  The complainants
    evidence at trial was that the sexual contact was non-consensual.  The
    appellant testified that the complainant actually initiated the sexual activity
    and participated in its escalation until it reached a point where she said
    stop.  And he did.

[5]

The material divergence of the evidence of the appellant and the
    complainant was what happened after dinner.

[6]

According to the complainant, after dinner the appellant announced he
    was going to lie down and strongly urged her to join him.  With some
    reluctance, she did.   They went into one of the berths in the cabin of the
    boat and once they were on the bed, the appellant started to caress her.  The
    complainant testified that she resisted but the appellant continued.  He
    fondled and then sucked her breasts.  The complainants evidence is that she
    started crying and pleaded with the appellant to stop.  He ignored her
    resistance, put his hand down the front of her pants, undid her belt and put
    his finger into her vagina.  He then got out of the bed, went to the foot of
    the bed and pulled her toward him. The appellant, not able to get the
    complainants pants off as she continued to struggle and try to stop him, put
    his mouth on her pubic area just above her belly before getting back onto the
    bed.  The appellant rubbed his penis against her buttock. He then held her down
    until he seemed to fall asleep.

[7]

When the appellants advances stopped, the complainant got out of the
    bed and moved to leave the berth, but the appellant stepped in front of her and
    blocked her way. After he eventually stepped aside, she went through the main
    cabin, past the son, to the head and cleaned herself up.  Still upset, she
    returned to the main cabin where she found the appellant sitting with his son. 
    Reluctantly, she had a cigarette with the appellant and tried to make small
    talk with the son. She then left the boat and hurried to her truck to leave. 
    The appellant followed her suggesting that he had a great time and that they
    should pursue a relationship.

[8]

The next evening, the complainant reported the matter to the police.  In
    accordance with their direction, she went to the hospital where a sexual
    assault evidence kit was performed. On another visit to the hospital a few days
    later, photographs were taken of various marks on her body.

[9]

In addition to the complainants testimony, the Crown called forensic
    biological evidence that indicated that the appellants saliva was found on the
    complainants clothing; specifically on her bra, jeans and sweater.  The Crown
    also called a sexual assault nurse examiner at the hospital, who from her
    examination notes, described observing a five by four cm area on the complainants
    lower back where the skin was red.

[10]

The
    appellant provided a different description of what happened after dinner.

[11]

The
    appellant testified that the considerable amount of alcohol he had consumed,
    together with his diabetes, caused him to hit the wall.   He told the
    complainant he had to lie down.  He asked her if she wanted to come, and she
    followed him.

[12]

According
    to the appellant, after they got onto the bed, the complainant started to
    snuggle and kiss him.  He kissed her back and she became more passionate.  The
    two continued to engage in foreplay during which time she undid her belt to
    provide access to her pubic area allowing him to massage her clitoris.

[13]

The
    appellant testified that because of his medical problems and the alcohol he had
    consumed, he had no libido. He could not get an erection.  Therefore, as the
    foreplay intensified, the appellant went to the foot of the bed to perform oral
    sex on the complainant. He kissed her stomach and pubic area at which point she
    said stop; he said are you sure?, and she said yeah.  The appellant
    stopped and got back onto the bed.  The complainant said you are mad at me,
    arent you to which the appellant said no, putting her hand on his genitals
    to demonstrate that he did not have an erection.  The two then fell asleep.

[14]

When
    they woke up they went to the main cabin and smoked a cigarette together.  The
    complainant hugged and kissed the appellant and said goodnight to the son.  The
    appellant then walked the complainant to her truck.  They parted on good
    terms.

[15]

The
    defence consisted of the appellants testimony and a vigorous attack on the
    complainants credibility. In his address to the jury, defence counsel argued,
    among other things, that the complainants version of events  including the
    circumstances in which she ended up on the bed with a man she barely knew, and
    why the appellant would force himself on her when his young son was but a few
    feet away  defied common sense.

[16]

The
    son did not testify.

II.       GROUNDS OF APPEAL

[17]

The
    appellant alleges two errors arising out of the jury instructions: the
    explanation of the burden of proof and the jurys use of the expert forensic
    evidence.  In addition, the appellant seeks to introduce fresh evidence
    pursuant to s. 683(1)(d) of the
Criminal Code
, R.S.C. 1985, c. C-46.

III.       ANALYSIS

[18]

I
    will deal first with the grounds of appeal arising out of the trial record.  In
    my view neither of them warrants quashing the verdict.

(1)

Jury
    Instructions

Burden of Proof

[19]

The
    appellants main argument is that the trial judge erred in instructing the jury
    with respect to reasonable doubt.  The trial judge was obliged, argues the
    appellant, to explain that proof of guilt beyond a reasonable doubt is much
    closer to absolute certainty than it is to probable guilt.

[20]

The
    portion of the charge dealing with reasonable doubt is as follows:

The phrase, reasonable doubt is a very important part of our
    criminal justice system.  A reasonable doubt is not a far-fetched or frivolous
    doubt. It is not a doubt based on sympathy or prejudice, it is a doubt based on
    reason and common sense.  It is a doubt that logically arises from the
    evidence, or the lack of evidence.

It is not enough for you to believe that [P.G.] is probably or
    likely guilty.  In those circumstances you must find him not guilty because
    Crown Counsel would have failed to satisfy you of his guilt beyond a reasonable
    doubt.  Proof of probable or likely guilt is not proof of guilt beyond a
    reasonable doubt.

You should remember, however, that it is nearly impossible to
    prove anything with absolute certainty, Crown Counsel is not required to do
    so.  Absolute certainty is a standard of proof that is impossibly high.

If, at the end of the case, after considering all of the
    evidence you are sure that [P.G.] committed the offence you should find [P.G.]
    guilty of it, since you have been satisfied of his guilt of that offence beyond
    a reasonable doubt.

However, if, at the end of the case, based on all of the
    evidence or lack of evidence, you are not sure that [P.G.] committed the
    offence, you should find him not guilty of it.

[21]

In
R. v. Starr
, 2000 SCC 40,

[2000] 2 S.C.R. 144
,
Iacobucci
    J. explained that one effective way to define the standard of proof is to
    explain that it is much closer to absolute certainty than to a balance of
    probabilities.  However, it is clear that there is more than one effective way
    to explain reasonable doubt.   Instructions that include the word sure
    together with the other aspects of the standard of proof description set out in
R. v. Lifchus
, [1997] 3 S.C.R. 320 at para. 39, have been held to
    provide the jury with the necessary standard of proof guidance.  See:
R. v.
    Hall
(2004), 193 O.A.C. 7 (C.A.) at paras. 34-36 and
R. v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont. C.A.) at paras. 36-38. These decisions are
    dispositive of this argument.

[22]

The
    appellant also challenges what is known as the
W.D.
instruction (see
R.
    v. W.D.
, [1991] 1 S.C.R. 742). He concedes that the trial judges
    instructions followed the standard
W.D.
formula. He argues however,
    that in the circumstances of this case, one that is essentially a she said, he
    said case, the trial judge was required to do more than merely set out the
W.D.
formula.

[23]

The
    following is the passage in the charge containing the
W.D.
instruction:

In this case [P.G.], the accused, testified, and Im going to
    give you some instructions as a framework to assist you, and I may repeat this
    later in my charge.
[1]
If you believe [P.G.]s evidence that he did not commit the offence as charged,
    you must find him not guilty.  Even if you do not believe [P.G.]s evidence, if
    it leaves you with a reasonable doubt about his guilt or about an essential
    element of the offence charged you must find him not guilty of that offence.

Even if [P.G.s] evidence does not leave you with a reasonable
    doubt of his guilt or about an essential element of the offence charged, you
    may convict him only if the rest of the evidence that you do accept proves his
    guilt beyond a reasonable doubt.

[24]

I
    do not agree with the appellant that this instruction would leave the jury
    incapable of properly determining whether the Crown had met the burden of
    establishing guilt.  This was a straightforward case that turned on the jurys
    assessment of the credibility of the accused and of the complainant.  The purpose
    of
W.D.
is to assist jurors in precisely these circumstances.

[25]

I
    add that while not dispositive, the errors now alleged about the instructions
    concerning the burden of proof are that the instructions were legally
    inadequate.  According to Doherty J.A. in
R. v. Austin
(2006), 214
    C.C.C. (3d) 38 (Ont. C.A.) at para. 14, in such circumstances trial counsels
    approval of the jury charge, and to a lesser extent his or her failure to
    object, will be a significant consideration on appeal. (See also:
R. v.
    Carrière
(2001), 159 C.C.C. (3d) 51 at para. 59 (Ont. C.A.), and
R. v.
    Johnson
(2002), 166 C.C.C. (3d) 44 at para. 57 (Ont. C.A.).)

[26]

In
    my view, the need for any special instruction in this case is belied by the
    fact that the appellant advanced no such position at trial.

[27]

In
    any event, I am of the view that in relation to the standard of proof, the
    charge is unassailable in law.

[28]

I
    would therefore not give effect to this ground of appeal.

Expert Evidence

[29]

The
    appellant does not point to any error in the principles of expert evidence in
    the trial judges instructions.  Rather, he submits that the trial judge erred
    by failing to advise the jury that the DNA evidence was not controversial 
    that it was, in fact, accepted by both the Crown and the defence.  The argument
    is that this omission left the jury with the impression that this evidence
    supported the Crowns case.

[30]

I
    do not see any merit in this argument.

[31]

The
    jury was instructed and repeatedly reminded that it was their job to weigh the
    evidence.  It was open to the jury to view the DNA evidence as benign in the
    sense that it was consistent not only with both the appellants evidence and
    the complainants evidence that there was intimate contact between the two but
    also with the nature of that contact.  It was also open to the jury to attach
    some significance to the DNA evidence in considering the Crowns argument that
    the appellant, in order to explain away the evidence, concocted his version of
    what happened between him and the complainant.

[32]

Again,
    I note that defence counsel approved of this aspect of the draft charge during
    pre-charge discussions and failed to object to the instructions at the
    conclusion of the charge.  This failure weakens the complaint that the trial
    judge failed to give the jurors adequate assistance in their task of evaluating
    this evidence.

(2)

The Fresh
    Evidence

[33]

The
    fresh evidence the appellant tenders consists of an affidavit sworn by the son
    about his observations on the day in question.  In addition, the appellant
    relies on his own affidavit and the affidavit of his trial counsel in support
    of the admissibility of the sons proposed evidence.  The Crown cross-examined
    all of the affiants.

[34]

While
    the son is able to provide his recollection of what happened during the
    complainants visit on the day in question, in my view, the aspect of his
    proffered evidence most material to the issue of consent is his description of
    the circumstances under which the complainant and his father went to lie down
    and, more significantly, what took place just prior to her departure.  As set
    out above, in these two areas, the evidence of the complainant and the
    appellant differ.

[35]

The
    complainant testified that the appellant more or less told her to accompany him
    when he went to lie down.  The appellants evidence was that he told her he
    needed to lie down, asked her if she wanted to join him, and she did.

[36]

The
    sons proposed evidence is that the appellant said he was going for a nap and
    the complainant said, I guess Ill join you.  Although this evidence differs
    slightly from his fathers, it would support his fathers version of events
    that it was the complainant who suggested that she accompany the appellant when
    he went to lie down.

[37]

Of
    more significance, in my view, is the evidence about what transpired between
    when the complainant and the appellant emerged from the berth and when the
    complainant left to go home.

[38]

The
    complainant testified that she was very upset when she left the berth and went
    directly to the head to clean up.  She re-entered the main cabin, eager to
    leave but the appellant, who by then was in the cabin with his son, pressured
    her to have a cigarette with him.  She talked briefly with the son and then
    after she finished her cigarette she left as quickly as she could. The
    appellants evidence was that after smoking a cigarette the complainant hugged
    and kissed him and said goodnight to his son.  He then walked the complainant
    to her truck and they parted on good terms.

[39]

Once
    again, the sons proposed evidence differs somewhat from his fathers evidence
    at trial. The son does say that the complainant hugged and kissed the appellant
    before leaving.  However, the son says that the complainant also hugged him
    (the son) as she left  something the appellant did not mention.  Nonetheless,
    the sons proposed evidence does support that of the appellant on the important
    issue of the complainants apparent state of mind, after she and the appellant
    came out of the berth.

Applicable Legal Principles

[40]

Section
    683(1) of the
Code
allows an appellate court to receive evidence on
    appeal "where it considers it in the interests of justice". The
    appellate courts discretion to accept fresh evidence should be informed by the
    appellant's interests in pursuing his appellate remedies and by the interests
    of the administration of justice. Those interests include ensuring not only
    that verdicts are reliable but also that the appellate process is not routinely
    used to re-write the evidentiary trial record.  To allow the process to be
    re-opened too easily jeopardizes the validity of all verdicts:
R. v. Dooley
,
    2009 ONCA 910, 249 C.C.C. (3d) 449 at paras. 106-107;
R. v. Snyder
,
    2011 ONCA 445, 273 C.C.C. (3d) 211

at para. 44.

[41]

Admitting
    evidence on appeal of facts that were litigated at trial is very much the
    exception (
R. v. M.(P.S.)
(1992), 77 C.C.C. (3d) 402 at p. 411 (Ont.
    C.A.)) and is justified only in furtherance of the integrity of the process:
Snyder

at para. 44.

[42]

In
    its recent decision in
Snyder
,
drawing on both the well-known
    decision in
R. v. Palmer and Palmer
, [1980] 1 S.C.R. 759 at p. 775 and
    the more recent case of
Reference re: Truscott
, 2007 ONCA 575, 225
    C.C.C. (3d) 321 at para. 92,

this court at para. 45

described
    the admissibility of fresh evidence on appeal as an exercise in discretion
    involving the answer to three questions:

Is the proffered evidence admissible under the rules of
    evidence applicable to criminal trials? [the admissibility requirement]

Is the evidence sufficiently cogent that it could reasonably be
    expected to have affected the verdict? [the cogency requirement]

What is the explanation offered for the failure to produce the
    evidence at trial and how should that explanation affect its admissibility on
    appeal?  [the due diligence inquiry]

[43]

The
    first two components of the test are directed at preconditions to the
    admissibility of fresh evidence under s. 683(1). Evidence that is not
    admissible under the usual rules of evidence governing criminal proceedings, or
    is not sufficiently cogent to potentially affect the verdict, cannot be
    admitted on appeal:
Truscott

at para. 93.

[44]

This
    courts judgment in
Truscott

at para. 93 characterizes the last
    component, often referred to as the due diligence requirement, not as a
    precondition of admissibility but as a factor that must be examined only if the
    evidence meets the other two preconditions.  See
R. v. Maciel
, 2007
    ONCA 196, 219 C.C.C. (3d) 516

at paras. 45-51, leave to appeal to S.C.C.
    refused, [2007] S.C.C.A. No. 258.  The explanation offered for the failure to
    adduce evidence at trial, or in some cases the absence of any explanation, can
    result in the exclusion of evidence that would otherwise be admissible on
    appeal:
Truscott
at para. 93.

Application of the Principles to this Case

[45]

The
    first consideration  whether the sons proposed evidence is admissible  can
    easily be answered in the affirmative.  The sons evidence that the complainant
    was in good humour after emerging from the berth and kissed his father and
    hugged them both is admissible under the rules of evidence.  The evidence would
    be relevant, as it would be capable of supporting the appellants version of
    events and of impeaching the reliability of the complainants trial testimony.

[46]

This
    takes me to the second question. Could the sons proposed testimony, when
    considered in the context of the rest of the evidence, reasonably be expected
    to have affected the verdict?

[47]

This
    court in
Truscott
at para. 100 described the cogency analysis in this
    way:

The cogency inquiry requires a
    qualitative assessment of the evidence proffered on appeal
. That
    evaluation must measure the probative potential of the evidence considered in
    the context of the entirety of the evidence admitted on appeal and heard at
    trial.
If the fresh evidence considered in this context
    could reasonably be expected to have changed the result at trial, the evidence
    is sufficiently cogent to justify its admission on appeal
.... [Emphasis
    added.]

[48]

The
    Crowns primary resistance to the reception of the sons evidence is that it is
    not sufficiently cogent to affect the verdict.  The Crown points to
    inconsistencies between the sons proposed evidence and the appellants trial
    evidence, which the Crown argues raise doubts as to credibility. The sons
    affidavit suggests, and his cross-examination confirms, that from the time the
    complainant arrived to the time she departed he was either with the appellant
    and complainant or on the boat. This contradicts the appellants trial evidence
     as well as the complainants evidence  that the son left, a few times, for
    twenty or thirty minutes. Similarly, in both a letter filed on sentencing and
    in his affidavit on the fresh evidence motion, the son states that the
    complainant hugged him before she left, in addition to hugging and kissing the
    appellant. But, in his trial testimony, the appellant did not mention this hug
    between the complainant and his son.

[49]

The
    Crown also submits that the sons questionable proposed evidence is incapable
    of supporting the appellants evidence, because the appellants evidence is
    itself inconsistent.  First, in his statement to the police, the appellant made
    no mention that the son was present on the evening in question. Then at trial,
    as mentioned above, the appellant said nothing about the complainants giving
    the son a hug. After the son himself stated that she gave him a hug, the
    appellant now swears that his son is correct: before she left, the complainant
    did hug his son, as well as hugging and kissing the appellant.

[50]

The
    Crown further submits that to be admitted, the proposed fresh evidence requires
    a higher degree of cogency as the decision not to call the son at trial was a
    tactical one.  In making this submission, the Crown relies on the following
    evidence of the appellants trial counsel, under cross-examination on his
    affidavit filed in support of the fresh evidence application:

A: . He had great faith in my skill as an advocate. He thought
    at trial -- he thought my cross-examination of [the complainant] went very
    well. And he thought that the jury was giving him signs that I was being
    listened to. And so he --  perhaps he was looking at things through
    rose-coloured glasses.

Q: Hes willing to take his chances without [his son].

A: I suppose.

[51]

The
    Crown says that this evidence demonstrates that the appellant decided not to
    call his son as a witness as he was confident that the jury would find him not
    guilty.

[52]

In
    determining whether the second test set out above has been met, the task is to assess
    the potential value of the sons evidence, a task that involves an evaluation
    of the proffered evidence and the credibility of the witness. That evaluation
    is not for the purpose of determining the ultimate reliability and credibility
    of the evidence, but rather for the purpose of determining whether it is
    sufficiently cogent to warrant its admission on appeal.

[53]

The
    qualitative assessment begins by identifying the purpose or purposes for which
    the evidence is admissible. As indicated above, the sons evidence, if
    believed, is capable of corroborating the appellants evidence and impeaching
    that of the complainant.  In my view, in the particular circumstances of this
    case, this purpose is particularly important since without the sons testimony
    the Crowns case depends almost exclusively on the jurys assessment of the
    credibility of the appellant and the complainant.  I view the DNA evidence and
    the photographs and the nurses description of the marks on the complainant as
    being of marginal value.

[54]

The
    appellant is unable to demonstrate that the proposed evidence is credible. That
    said, I do not agree with the Crown that the sons evidence is so lacking in
    credibility as to warrant its outright rejection.  The situation is therefore
    similar to the one in
Babinski
where Rosenberg J.A. says, at p. 715,
    that where the court of appeal, having fully reviewed the record, is unable to
    find that the evidence is not credible, even though it is unable to say that it
    is credible, the court must go on to consider whether if believed, it could
    reasonably be expected to have affected the result.

[55]

The
    question is whether the sons evidence is reasonably capable of belief.  I
    cannot say whether or not the proposed evidence is credible or reliable.  I
    have not heard the trial evidence or seen the son testify and be
    cross-examined.  What I can say is that in my view, while the inconsistencies
    and discrepancies emphasized by the Crown are relevant to credibility, they are
    insufficient to establish that the evidence is not credible as explained in
Palmer
,
i.e.
is not reasonably capable of belief.  Even if, at a trial, the
    sons evidence was not accepted as entirely credible or as credible in every
    respect, it may still be capable of affecting the verdict given its potential
    import on a decisive issue: the credibility of the appellant and the
    complainant on the issue of consent.

[56]

In
    my view, the sons proposed evidence meets the second criterion.

[57]

The
    third question, the explanation provided for why the evidence was not adduced
    at the trial, is applied less strictly against an accused who appeals
    conviction than it is for other categories of appellants.  For example, if the
    proffered evidence is sufficiently cogent to warrant an acquittal, fresh evidence
    should be received on appeal even though it was available at trial. However, if
    the evidence were available at trial but not led for tactical reasons, the
    cogency requirement takes on greater importance.

[58]

In
    the circumstances of this case, the analysis of why the son was not called as a
    witness at the trial is complicated by the fact that he was available and able
    to testify. The appellant's explanation is that he was concerned that
    testifying would have been harmful for his son, particularly given the ongoing,
    high-conflict legal proceedings between the appellant and his sons mother over
    custody and access arrangements.

[59]

In
    his affidavit in support of the application to receive his sons evidence, the
    appellant details the legitimacy of his concern.  He says that the mothers
    hostility toward their sons potential involvement in the trial became apparent
    as the trial approached and then increased as the trial progressed.  The
    appellant also attests to the fact that following the preliminary inquiry a
    family court hearing took place during which the presiding judge, apprised of
    the pending sexual assault trial, had admonished him for considering calling
    his son as a witness and even for having his son talk to the appellants
    lawyer.

[60]

There
    is room for debate over whether the third test will be met where the evidence
    demonstrates that a child is available to testify at trial but, for some
    reason, may suffer harm if called as a witness in a trial involving one or both
    parents.  In this case it is alleged that the potential harm would arise out of
    the fact that the child, at the time of the trial, was at the centre of
    high-conflict family proceedings.  The debate would involve a number of
    considerations including the likelihood of the risk, the nature and degree of
    potential harm to the child and the quality of the evidence necessary to
    establish the risk.

[61]

However,
    I am of the view that this debate does not have to be addressed in order to
    decide this appeal as I am satisfied that the third test is met.

[62]

First,
    I am not prepared to accept the Crowns argument that the decision not to call
    the son was a tactical one and that therefore the proposed fresh evidence must
    reach a higher level of cogency in order to be admitted.

[63]

The
    testimony of the appellants trial counsel set out above, when considered in
    the context of all of the evidence relevant to the fresh evidence application,
    supports the appellants argument that his primary reason for not following his
    lawyers advice to have his son called as a witness was out of concern over the
    impact that testifying would have on his son.  As the trial progressed, the
    appellant became more optimistic that the jury would return a verdict of not
    guilty.  However, in my view the fact that this optimism influenced the
    appellants ultimate decision not to require his son to testify does not mean
    the decision was strategic. The evidence satisfies me that the appellants
    primary reason for deciding that his son should not be called as a witness 
    his sons best interests  did not change. What changed were the implications
    of protecting his son from the consequences not only of testifying in a trial
    let alone one of this nature but also of being forced to do something that
    would likely exacerbate the legal difficulties in which he and his parents were
    involved.  In these circumstances I do not view the decision not to call the
    son as a witness at the trial as amounting to a tactic that should affect the
    assessment of the admissibility of the proposed fresh evidence.

[64]

As
    I see it, it would be contrary to the ends of justice not to receive the sons
    proposed evidence.  His testimony is effectively the only evidence relevant to
    the sole issue  consent  aside from that of the appellant and complainant. 
    It is reasonably capable of belief. If it is believed or if it raises a
    reasonable doubt, the sons evidence could well affect the outcome of a
    prosecution in which the appellant faces a serious charge that attracts serious
    consequences.

[65]

In
    exercising this courts broad discretion I would allow the application to admit
    the proposed fresh evidence.

IV.     DISPOSITION

[66]

Because
    this determination could reasonably be expected to have affected the verdict,
    the verdict can no longer stand.

[67]

I
    would therefore allow the appeal, quash the conviction and order a new trial.

[68]

Given
    this disposition, it is unnecessary to address the sentence appeal.

Released:


AUG 21 2013                                   Gloria
    Epstein J.A.

MR                                                  I
    agree M. Rosenberg J.A.

I
    agree R. G. Juriansz J.A.





[1]
The judge did indeed repeat these instructions, in virtually identical words,
    later in the charge, immediately before outlining the positions of the Crown
    and the defence.


