



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. K.K.M., 2020 ONCA 736

DATE: 20201120

DOCKET: C62755

Doherty, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.K.M.

Appellant

Paul J.I. Alexander, for the appellant

Andrew Cappell, for the respondent

Heard: June 13, 2019 and
    October 29, 2020

On appeal from the conviction entered on
    March 30, 2016 and the sentence imposed on October 14, 2016 by Justice Quinlan
    of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:


I



overview

[1]

This appeal has a long history. The appellant
    was convicted in March 2016 and sentenced to three years in the penitentiary in
    October 2016. He was released on bail pending appeal.

[2]

His appeal was eventually scheduled for argument
    in June 2019. Shortly before the scheduled appeal date, counsel for the
    appellant sought an adjournment to allow counsel to pursue a potential fresh
    evidence application based on the alleged ineffective assistance of trial counsel.
    I directed the appeal should proceed as scheduled, and counsel could, if necessary,
    renew his request for an adjournment after the grounds of appeal arising from
    the trial record had been argued.

[3]

Counsel for the appellant argued the grounds of
    appeal arising out of the trial record at the hearing in June 2019. After oral
    argument, the court indicated none of the grounds advanced by the appellant
    could succeed. Counsel renewed his request to adjourn the appeal so he could
    investigate and, if appropriate, pursue an allegation of ineffective
    assistance. The court granted the adjournment, anticipating it would be
    relatively brief.

[4]

Counsel decided to pursue the ineffective
    assistance of counsel claim and a schedule was set for the filing of affidavits
    and cross-examination on those affidavits. Counsel were not available to argue
    the appeal until the spring of 2020. By then, the pandemic had arrived and a
    further adjournment was granted. The appeal was ultimately adjourned to October
    29, 2020.

[5]

At the October 29
th
hearing, the
    court heard from both counsel on the ineffective assistance claim. The court
    rejected that claim, and dismissed the appellants appeals from conviction and
    sentence with reasons to follow.

[6]

These reasons will first consider the conviction
    appeal, beginning with the grounds based on the trial record, followed by the
    ineffective assistance of counsel claim. I will then address the sentence
    appeal.


II



the conviction appeal

A.

The grounds of appeal based on the trial record

[7]

The appellant was charged with one count of
    sexual assault and one count of sexual interference. The sexual interference
    charge was particularized to allege sexual intercourse. The relevant events
    occurred in the early morning hours at the appellants home. The jury convicted
    on the sexual assault charge, but acquitted on the sexual interference charge.

[8]

M.A. was 12-years old at the time of the alleged
    assaults. She and the appellant, who was 21, had met several months earlier on
    Facebook. They chatted regularly. M.A. testified that she told the appellant
    she was 12. Her Facebook profile indicated she was 18. M.A. and the appellant met
    in person for the first time on the night of the alleged assaults.

[9]

M.A. and two friends were at an all-ages club.
    She decided to call the appellant and invite him to come to the club. A short
    time later, the appellant arrived with a friend.

[10]

The appellant and M.A. hung out together at
    the club, talking and playing pool. He asked her how old she was and she told
    him she was 12. He did not react one way or the other. While they were at the
    club, M.A. sat on the appellants lap and they kissed.

[11]

One of M.A.s friends testified that she
    overheard a conversation between the appellant and his friend, in which the
    appellant acknowledged M.A. was 12.

[12]

M.A., the appellant, his friend and M.A.s two
    friends left the club together sometime after midnight. They walked to the
    appellants home. M.A. and the appellant took a shower together. According to M.A.,
    the appellant had told her on the way home that he wanted to have a shower with
    her.

[13]

M.A. described various sexual acts, including
    fondling of her vagina and buttocks, digital penetration, and sexual intercourse.
    According to her testimony, these acts occurred in the bathroom and the
    bedroom. M.A. described herself as feeling awkward and uncomfortable
    throughout the sexual activity. She and her friends stayed at the appellants overnight
    and left the following morning. She exchanged texts with the appellant later
    that day.

[14]

The defence challenged the credibility of M.A.
    There were significant inconsistencies in her evidence. M.A.s evidence also
    differed in material respects from her statement to the police and her
    preliminary inquiry testimony. Most notably, M.A. never alleged sexual
    intercourse occurred until she testified at trial. There was no mention of that
    allegation in her statement to the police or her preliminary inquiry testimony.
    The jury acquitted on the charge alleging sexual intercourse.

[15]

The testimony of M.A.s two friends also
    contained various inconsistencies and variations from earlier statements. One
    of M.A.s friends also acknowledged at least some her evidence was based on
    information she received from other people. The two friends did, however, provide
    confirmatory evidence of sexual activity between the appellant and M.A.

[16]

T.W. testified for the Crown. She dated the
    appellant in the fall of 2013, a few months after the alleged assaults. T.W. heard
    rumours the appellant and M.A. had sex. She looked through the appellants
    phone and found messages, which appeared to be between the appellant and M.A.
    In the messages, the appellant asked M.A. if she liked it, and if she wanted
    to do it again. T.W. confronted the appellant with these messages and he
    denied they existed. When T.W. told him she had seen the messages, he changed
    his story and said the comments related to sexually explicit text messages
    between M.A. and  him.

[17]

T.W.s relationship with the appellant ended on
    unfriendly terms. She was upset with the appellant over his failure to provide
    child support.

[18]

The appellant did not testify and did not call a
    defence.

[19]

Because M.A. was under 16, she could not, as a
    matter of law, consent to the sexual activity:
Criminal Code
, s.
    150.1(1). At trial, the defence sought to advance two positions. First, the
    defence argued the Crown had failed to prove beyond a reasonable doubt the
    alleged sexual activity had occurred. Second, the defence maintained if the sexual
    activity occurred, the Crown had failed to prove beyond a reasonable doubt the
    appellant did not believe M.A. was 16 or older and had failed to prove the
    appellant did not take all reasonable steps to ascertain M.A.s age:
Criminal
    Code
, s. 150.1(4).

[20]

The trial judge found there was no air of
    reality to the mistaken belief in age defence and declined to leave that defence
    with the jury.

[21]

The appellant submitted the trial judge erred in
    law in refusing to leave with the jury mistaken belief in age as a defence. The
    appellant also submitted the trial judge misdirected the jury in respect of the
    impact of possible collusion or tainting on the credibility of the evidence of
    M.A. and her two friends. The appellant argued either error required a new
    trial.

(i)

Mistaken Belief in Age

[22]

The trial judge held the mistaken belief in age
    defence in s. 150.1(4) could succeed only if a jury had a reasonable doubt as
    to whether the appellant believed M.A. was 16 or older (the subjective component),
    and had a reasonable doubt as to whether the appellant had taken all reasonable
    steps to ascertain M.A.s age (the objective component). Consequently, if there
    was no air of reality to either the subjective or objective component of the
    defence, the defence could not be left with the jury: see
R. v. Cinous
,
    [2002] 2 S.C.R. 3.

[23]

In support of the submission the appellants
    mistaken belief in M.A.s age should have been left as a defence, counsel
    referred to M.A.s Facebook profile, which indicated she was 18 years old. Counsel
    also referred to evidence of M.A.s conduct during the night of the alleged
    assaults. He argued her conduct, while with the appellant, could lend an air of
    reality to the contention the appellant believed M.A. was 16 or older.

[24]

There was no direct evidence the appellant ever
    saw M.A.s Facebook profile. The trial judge referred to the suggestion he had
    as mere speculation. The appellant did, however, communicate for several
    months, and on many occasions, with M.A. using Facebook. Her profile was
    readily available to anyone communicating with her. On this evidence, it is a fair
    inference the appellant probably saw the Facebook profile at some point during his
    interaction with M.A. on Facebook.

[25]

The probability the appellant saw M.A.s Facebook
    profile at some time in the months before they actually met does not, however,
    standing alone, provide a basis upon which a jury could have a doubt about the appellants
    belief with respect to M.A.s age at the relevant time. Facebook profiles are not
    inherently accurate or reliable. Nor does seeing a Facebook profile mean one
    has read the profile. A reference in the profile to a date of birth, if
    remembered at all, would have little, if any, significance to the appellants
    belief about M.A.s age after he had actually met her and spent hours with her.
    The crucial question insofar as the availability of the defence is concerned is
    what the appellant believed about M.A.s age when he engaged in sexual activity
    with her, not what he saw on her Facebook profile, weeks or months earlier. The
    Facebook profile, on its own, is not enough to lend an air of reality to a
    defence predicated on the appellants belief M.A. was 16 or older.

[26]

M.A.s conduct, while with the appellant on the
    night of the assaults, also provides no air of reality to the assertion the
    appellant honestly believed M.A. was at least 16. This part of the inquiry is
    purely subjective. The trier of fact looks for evidence of what the appellant
    actually believed. While it is a fair generalization most persons who engage in
    certain kinds of activity are 16 or older, that generalization provides no
    insight into what the appellant believed about M.A.s age at the relevant time.
    In other words, accepting that most people who engage in a certain sexual activity
    are over 16 does not assist in determining what the appellant believed about M.A.s
    age based on her conduct. Furthermore, as the trial judge pointed out, to the
    extent the appellant relied on the sexual nature of some of M.A.s alleged conduct
    as a basis for any belief about her age, that belief could not assist the
    appellant if it was formed during or after the activity constituting the sexual
    assault.

[27]

As I accept the trial judges holding there was
    no air of reality to the appellants claim he honestly believed M.A. was at
    least 16, it is unnecessary to deal with the trial judges further conclusion
    there was no air of reality to the objective component of the mistaken belief
    in consent defence. I will, however, address the objective component. I agree
    with the trial judges assessment.

[28]

There is no evidence the appellant took any positive
    steps to determine M.A.s age. He submitted positive steps are not always
    necessary to satisfy the reasonable steps component in s. 150.1(4). As
    indicated in
R. v. Duran
, 2013 ONCA 343, at para. 52:

Indeed, in some cases, an accuseds visual
    observation of the complainant may be enough to constitute reasonable steps.

[29]

The trial judge did not suggest active steps to
    determine M.A.s age were a prerequisite to the availability of the defence.
    She did, however, correctly observe the appellant took none. In effect, the
    trial judge found there was no air of reality to the assertion visual
    observations of the complainant could, in the circumstances in which the
    appellant found himself, amount to all reasonable steps to determine M.A.s
    age.

[30]

This finding is unassailable. It will be a very
    unusual case when simply looking at a complainant will provide a basis for a
    defence under s. 150.1(4). The facts of this case are a long way from that rare
    case. M.A. was 12 years old. There is very little evidence about her appearance
    on the night of the alleged assaults, and certainly nothing to suggest merely
    observing her was all that was needed to meet the all reasonable steps
    requirement in s. 150.1(4).

[31]

In holding that the trial judge correctly
    concluded there was no air of reality to the objective component of the
    mistaken belief in age defence, I do not suggest it is for the trial judge to
    decide what did or did not constitute all reasonable steps. That is a jury
    question. The trial judge had to determine whether the evidence gave an air of
    reality to the assertion the jury could be left with a doubt as to whether an
    accused took all reasonable steps to determine a complainants age.

[32]

The trial judge did not err in refusing to leave
    mistaken belief in age with the jury as a possible defence.
[1]


(ii)

The Collusion Instruction

[33]

The appellant submitted the trial judge erred in
    her instruction on the connection between potential collusion among Crown witnesses
    and the jurys assessment of the credibility of those witnesses. The trial
    judge told the jury:

There is evidence from which you could, but
    you do not have to find, that some witnesses had some discussion, as well as
    some opportunities to talk to one another about the events at which each
    testified.
If you conclude, after considering all of the evidence, that
    their evidence is the result of tainting, collusion or collaboration,
    intentional or otherwise, this may affect your assessment of the reliability of
    their evidence.
[Emphasis added.]

[34]

The appellant submitted the trial judge erred by
    telling the jury they should consider tainting or collusion as factors in the assessment
    of the credibility and reliability of the Crown witnesses only if they
concluded
tainting or collusion had in fact occurred. The appellant submitted the
    possibility of collusion or tainting is enough to potentially negatively affect
    the jurys assessment of the reliability and credibility of a witnesss
    evidence.

[35]

The appellant is correct. The possibility of
    collusion or tainting can negatively affect a witnesss reliability or
    credibility: see
R. v. Shearing
, [2002] 3 S.C.R. 33, at para. 44. Were
    one grading the trial judges instructions, the language used in the
    above-quoted passage would be enough to deny her a perfect grade. This court is,
    of course, not engaged in that exercise.

[36]

The jury instructions must be considered as a
    whole. The instructions must be read as the jury would understand them in the
    context of the evidence and the arguments of the particular case. The meaning
    of words and phrases used in a jury instruction are not to be parsed as lawyers
    and judges, attuned to fine distinctions drawn in the case law, might do.

[37]

The claim the Crown witnesses had colluded, or
    their evidence was tainted by interactions among them, was front and centre
    throughout the trial. In her general instructions about the assessment of witnesses
    evidence, given very shortly before the passage quoted above, the trial judge
    alluded to the need to consider possible connections among the witnesses when
    assessing credibility and reliability. She also put the risk of collusion or
    tainting forward as part of the position of the defence. Finally, the strong
    instructions on the burden of proof would minimize any risk the jury might
    think there was any onus on the appellant to prove anything, including collusion.

[38]

It is significant that there was no objection
    taken to the language used by the trial judge, either in the pretrial
    discussions about the draft charge, or after the instructions had been
    delivered.

[39]

The trial judges instructions on collusion or
    tainting, as they could affect the credibility of the Crown witnesses, were
    appropriate and did not mislead the jury.

B.

The Alleged Ineffective Assistance of Counsel

(i)

The relevant trial proceedings

[40]

During her evidence, M.A. was asked about text
    exchanges she had with the appellant on a social media app called Whisper.
    These exchanges occurred about four months after the alleged assaults.

[41]

M.A. acknowledged the appellant had communicated
    with her over Whisper. In her evidence, M.A. said she and the appellant
    exchanged messages about various rather mundane matters. She agreed on
    cross-examination she told the police in her statement the appellant had told
    her during the Whisper communications to stop telling everyone. There were
    apparently rumours circulating about their sexual activities.

[42]

M.A. was shown what appeared to be a screenshot
    of the text exchanges over Whisper. In that document, the appellant is
    represented as having asked her why she had lied to her sister when, in fact,
    she and the appellant had never did anything. M.A. is represented in the
    screenshot as having said she lied about their encounter because she did not
    want her family being mad at me at Christmas. M.A. is also represented as
    admitting to the appellant she told him she was 16.

[43]

The conversation, as set out in the alleged
    screenshot, ends with the appellant telling M.A. he is upset and concerned
    about being arrested. He tells M.A. he is screenshotting all of this. M.A. is
    then said to have apologized for ruining your life.

[44]

In her evidence, M.A. adamantly denied ever
    saying any of the statements attributed to her in the screenshot. She insisted the
    conversation depicted in the screenshot never happened.

[45]

No attempt was made at trial to authenticate the
    screenshot, either through the evidence of the appellant, who did not testify,
    or through any other evidence. The trial judge instructed the jury:

As well, [M.A.] was asked about a Whisper
    exchange with [the appellant]. She testified that although she had a Whisper
    exchange with [the appellant] around Christmas 2013, she did not send the
    messages and she did not have the conversation captured in what was described
    as the screenshot. This evidence is only to be considered by you in relation to
    the credibility of [M.A.] and not for the truth of the contents of what was set
    out in the document. It is not to be treated as a statement of [the appellant]

[46]

In this instruction, the trial judge told the
    jury it could take into account, when assessing M.A.s credibility, her
    acknowledgement an exchange on Whisper occurred and her evidence about the
    contents of that exchange. The jury could also consider M.A.s denial she had
    the conversation depicted in the screenshot when assessing her credibility. The
    jury could not, however, use the contents of the screenshot as evidence of the
    truth of its contents and could not treat the screenshot as a statement made by
    the appellant. There was no objection to this instruction at trial or on
    appeal. The instruction was arguably overly favourable to the accused. The jury
    could have been told to ignore the contents of the screenshot.

(ii)

The nature of the ineffective assistance claim

[47]

The appellant asserts he did not understand the
    content of the alleged screenshot could not be considered by the jury unless he
    testified and identified the screenshot as an accurate representation of the
    conversation. Although the appellant acknowledges he and trial counsel
    discussed, at some length, whether the appellant should testify, he maintains
    the evidentiary status of the screenshot never came up in those conversations.

[48]

The appellant claims he decided not to testify
    based on the advice trial counsel gave him. He relied on that advice primarily
    because he had full confidence in trial counsel. The appellant insists,
    however, had he understood the jury could not consider the contents of the screenshot
    unless he testified, he would have insisted on testifying regardless of counsels
    advice. The appellant described the screenshot as very important evidence that
    could prove his innocence.

[49]

On the ineffective assistance claim, counsel
    filed the appellants affidavit and the affidavit of trial counsel. Both were
    cross-examined. There were other affidavits filed by the appellant and Crown
    but, in the end, those affidavits did not play a significant role in the
    assessment of the claim.

[50]

Before examining this claim in some detail, it
    is important to highlight its limited scope. There is no argument trial counsel
    was incompetent for failing to obtain independent verification of the
    authenticity of the screenshot. There was some evidence data pertaining to the
    Whisper communication could be extracted from a cellphone, but no evidence any
    extraction was ever attempted, or had it been attempted, could have been
    successful.

[51]

There is also no argument trial counsel was
    under any misapprehension as to the applicable rules of evidence. It is not
    argued trial counsel failed to appreciate the screenshot could not be used as
    evidence of its contents, absent verification.

[52]

Nor does the appellant contend trial counsels
    advice to the appellant he should not testify was, in the circumstances,
    unreasonable advice: e.g. see
R. v. Ross
, 2012 NSCA 56, at para. 51.
    The appellant quarrels, not with the advice ultimately given, but with the
    sufficiency of the information provided to him by counsel, so he could make an
    informed decision whether to follow counsels advice.

[53]

It was also common ground in oral argument, although
    there was some confusion at trial and in the facta, the contents of the screenshot
    had no evidentiary value beyond their potential to impeach M.A.s credibility
    by showing she made a statement inconsistent with her trial testimony. For
    example, in the screenshot, M.A. is reported as telling the appellant she told
    him she was 16 on the night of the alleged assaults. Even if the appellant testified
    the screenshot was accurate, and the jury believed that evidence, M.A.s
    statement to the appellant in the screenshot was not evidence she told the
    appellant she was 16 on the night of the alleged assaults. It was an
    out-of-court statement made by M.A., inconsistent with her trial testimony she
    told the appellant she was 12 on the night of the sexual activity. The contents
    of the screenshot could only become evidence M.A. actually told the appellant
    she was 16 on the night of the alleged assaults, if M.A. confirmed the accuracy
    of the statements in the screenshot. In her testimony, she adamantly denied
    making those statements.

[54]

The distinction between evidence admitted for
    impeachment purposes and evidence admissible for its truth is important in the
    context of the availability of the mistaken belief in age defence. M.A.s alleged
    statement in the screenshot, even if the jury believed she made the statement, was
    not evidence of what M.A. said on the night of the alleged sexual assaults
    about her age, and was not evidence from which any inference could be drawn as
    to the appellants belief about her age on the night of the alleged assaults. M.A.s
    alleged statement in the screenshot could not give an air of reality to a
    mistaken belief in age defence under s. 150.1(4).
[2]


(iii)

Analysis of the ineffective assistance claim

[55]

An appellant who advances an ineffective
    assistance of counsel claim must show three things. First, the appellant must
    establish the facts material to the claim of ineffective assistance on the
    balance of probabilities. Second, the appellant must demonstrate trial
    counsels representation was ineffective. Trial counsels representation of an
    accused is ineffective only if it falls below what is reasonably expected of
    trial counsel in all the circumstances. Third, the appellant must show the
    ineffective representation resulted in a miscarriage of justice, either by
    rendering the trial unfair or the verdict unreliable: see
R. v. Archer
,
    2005 CanLII 36444, at paras.
119, 202 C.C.C. (3d) 60
    (Ont. C.A.);
R. v. Qiu
, 2010 ONCA 736, at paras.
6-8;
R. v. D.G.M.
, 2018 MBCA 88, at para.  7;
R. v.
    Stark
, 2017 ONCA 148, at paras. 12-14;
R. v. White
(1997), 114
    C.C.C. (3d) 225, at 247 (Ont. C.A.), leave to appeal to SCC refused, [1997]
    S.C.C.A. No. 248.

[56]

Because the focus of the ineffective assistance of
    counsel claim is narrow, there is only one material fact in issue. The appellant
    must show, on the balance of probabilities, trial counsel did not, when
    discussing whether the appellant should testify, advise him the contents of the
    screenshot could not be considered by the jury unless the appellant testified
    and authenticated the screenshot. If the appellant cannot establish that fact on
    the balance of probabilities, the ineffective assistance claim fails.

[57]

Crown counsel submitted the appellant cannot
    meet that burden. While trial counsel and the appellant do not recall any such
    conversation, they both acknowledged the possibility the screenshot could have
    been discussed in the course of their discussions about whether the appellant
    should testify. The Crown maintained that possibility foreclosed a finding no
    such discussion occurred.

[58]

Trial counsel testified he had a brief
    discussion with the appellant when the screenshot was marked as a lettered
    exhibit during M.A.s cross-examination. He told the appellant only numbered
    exhibits were considered evidence. Trial counsel could not recall any reference
    to the screenshot when he and the appellant were discussing the possibility of
    the appellant testifying. Trial counsel indicated it was possible they spoke
    about the screenshot, but he did not think it was a realistic possibility.

[59]

In his affidavit and cross-examination, the
    appellant acknowledged after the Crowns case was completed, he and trial
    counsel discussed M.A.s evidence in the context of trial counsel explaining why,
    in his view, the appellant should not testify. During this conversation, trial
    counsel identified several aspects of M.A.s testimony he believed made her
    evidence incredible. The appellant was pretty sure the screenshot did not
    come up in these discussions. He went on to say he would have insisted on testifying
    had he been told the screenshot could not otherwise be treated as evidence of
    what M.A. said. The appellant reasoned, since he chose not to testify, the
    screenshot must not have been discussed with him.

[60]

I do not understand the Crown to challenge trial
    counsels credibility or the reliability of his evidence. In fact, Crown
    counsel puts considerable reliance on trial counsels detailed recollection of
    his discussions with the appellant about testifying. Trial counsel did not,
    however, recall any discussion about the screenshot and went so far as to
    describe the possibility such a discussion occurred as unrealistic.

[61]

Based on trial counsels evidence, which is
    supported on this point by the appellants evidence, I am satisfied, on the
    balance of probabilities, the appellant and trial counsel did not discuss the inadmissibility
    of the screenshot as evidence of what M.A. said, absent authentication of the
    screenshot in the appellants testimony. The appellant has established the
    requisite factual basis for the claim he did not receive adequate legal advice.

[62]

I move next to the performance component of the
    ineffective assistance of counsel claim. Part of counsels duty is to advise an
    accused whether to testify. Counsel must ensure the accused understands it is
    the accused who must make that decision:
R. v. Stark
, at para. 17.
    Counsel must, however, arm the accused with the information needed to make an
    informed decision. That information includes counsels advice about testifying
    and the reasons behind that advice.

[63]

Counsels conduct is measured against the
    standard of reasonable professional judgment:
R. v. D.G.M.
, at para.
    7, and by reference to the circumstances as they existed when the decision was
    made. Hindsight has no role to play. Advice and representation that were
    reasonable when provided cannot be made unreasonable by virtue of an adverse
    verdict:
R. v. Archer
, at para. 119;
R. v. Fraser
, 2011 NSCA
    70, at paras. 53, 80. As stated by Major J., in
R. v. G.G.B.
, 2000 SCC
    22, at para. 27:

The analysis proceeds upon a strong
    presumption that counsels conduct fell within the wide range of reasonable
    professional assistance.

[64]

The reasonable professional judgment standard
    does not require counsel say or do everything that may have been appropriate or
    helpful to the accused in deciding whether to testify. When an ineffective
    assistance claim is predicated entirely on counsels failure to discuss a specific
    piece of evidence in the context of providing advice about testifying, the
    argument can only succeed if that single piece of evidence was, on any
    reasonable view, so important to the decision to testify that counsels failure
    to discuss it pushed counsels performance below the reasonable professional
    assistance standard.

[65]

The significance of a particular piece of
    evidence to counsels advice about testifying must be measured objectively
    through the eyes of a reasonable person placed in counsels circumstances, and
    bearing in mind that the reasonableness standard describes a range of conduct. The
    importance of that evidence cannot be judged from the post-verdict vantage
    point of a convicted accused. It is hardly surprising an accused who took
    counsels advice, but now finds himself convicted and facing a jail sentence, has
    come to see the missing piece of information as crucial to proper
    representation.

[66]

In applying the reasonableness standard, courts
    recognize different lawyers can reasonably give different advice in the same
    circumstances, and can reasonably take different approaches when conveying that
    advice to the client. For the purposes of determining an ineffective assistance
    of counsel claim, the question for this court is not what should trial counsel
    have said or done, but rather was what trial counsel said or did reasonable in
    the circumstances?

[67]

There is no dispute trial counsel and the
    appellant discussed whether the appellant would testify on several occasions
    during the trial, and at considerable length after the Crowns case closed. The
    discussion included a review of the evidence and the reasons offered by trial
    counsel in support of the opinion the appellant should not testify. It is also
    common ground trial counsel advised the appellant not to testify and the
    appellant took that advice and chose not to testify. He signed an
    acknowledgement to that effect.

[68]

Trial counsel testified he had many discussions about
    testifying with the appellant as the trial proceeded. He told the appellant the
    decision would be revisited as the evidence developed. The appellant was not
    adverse to testifying.

[69]

Trial counsel recalled discussing the Crowns
    evidence with the appellant and family members after the Crowns case was
    complete. Everyone, including trial counsel, were in good spirits and agreed
    the Crowns case had been damaged significantly by cross-examination.

[70]

Trial counsel told the appellant, in his
    opinion, the Crown had not made out its case and he should not testify. Trial
    counsel reviewed the evidence of the Crown witnesses with the appellant so the
    appellant would understand why trial counsel believed the jury would not return
    a guilty verdict on the evidence of the Crown witnesses.

[71]

In his review of the evidence, trial counsel talked
    about T.M.s evidence at some length. He referred to the many inconsistencies,
    indicating her evidence was completely different from her first sworn statement,
    completely different from her preliminary inquiry and now different again on
    the day of trial. Counsel believed he had exposed T.M.s efforts to lie to the
    jury. In trial counsels opinion, the jury would not believe T.M.s evidence.

[72]

Trial counsel also recalled discussing the
    weaknesses in the testimony of the other Crown witnesses. He particularly remembered
    indicating one witness had acknowledged in her evidence her testimony was the
    product of conversations she had had with her friends.

[73]

Trial counsel testified he focussed on the
    weaknesses in the Crowns case when explaining to the appellant why he believed
    he should not testify. Trial counsel also, however, spoke to the appellant
    about the risks of testifying. Trial counsel did not believe the appellant would
    be a strong witness. He was young, inexperienced in the trial process, and
    had anxiety issues. Trial counsel feared much of the good work done in
    cross-examination of the Crowns witnesses could be undone through the skilful cross-examination
    of the appellant by an experienced Crown counsel.

[74]

Trial counsel and the appellant also spoke about
    the benefits of going to the jury last. Both saw real value in the
    circumstances of this case in addressing the jury last. If the appellant
    testified, the Crown would have had the last word.

[75]

Trial counsels appraisal of the Crowns case
    was not unreasonable. In fact, the jury ultimately acquitted on the more
    serious charge. Trial counsels concerns about the risks inherent in the
    appellant testifying were also reasonable, as was his opinion going to the jury
    last had some tactical advantage.

[76]

The appellants evidence about his discussions
    with trial counsel did not differ materially from trial counsels recollection.
    He agreed, after the Crowns case was complete, he and trial counsel discussed
    whether he should testify. Trial counsel pointed out the many inconsistencies
    in the evidence of the Crowns witness, stressing the fact that everybodys  story
    kept changing. In reference to T.M.s evidence, trial counsel spoke of the
    differences between her statements, her testimony at the preliminary inquiry,
    and her testimony at trial. Trial counsel advised the appellant against
    testifying primarily because, in his opinion, the jury had not believed the Crown
    witnesses and would not convict.

[77]

The appellant also recalled trial counsel
    expressing concerns about his testimony. Trial counsel told him his testimony
    could confuse the jury:

Because its a completely different story than
    everybody elses, correct. Its a different series of events.
[3]

[78]

The appellant also agreed that trial counsel
    expressed concerns about the appellant testifying because of his age,
    inexperience and his anxiety issues. Trial counsel was concerned he might
    look bad in front of the jury during cross-examination.

[79]

It is clear from the appellants
    cross-examination, he understood the reasons put forward by trial counsel in
    support of his advice the appellant should not testify. It is equally clear the
    appellant understood if he did not testify, his version of events would not be
    directly before the jury. The appellant decided to take counsels advice,
    largely because he had faith in him.

[80]

Having concluded there was nothing unreasonable
    in what trial counsel said, or the advice he gave, I come to the argument the
    advice was rendered  ineffective by what was not said. Certainly, counsel could
    have explained the evidentiary status of the screenshot when advising the
    appellant whether he should testify. No doubt, there were other aspects of the
    evidence counsel could have discussed with the appellant as well.

[81]

The adequacy of counsels advice cannot be determined
    in the abstract, but must be measured, having regard to the dynamic of the specific
    trial. Trial counsel had concluded the Crown witnesses were not credible and
    their evidence could not successfully carry the burden of proof. In counsels
    view, the best defence lay in the assertion the Crown had failed to prove its
    case because the Crown witnesses, especially M.A., were not credible. Not
    surprisingly, given counsels assessment of the evidence, his discussions with
    the appellant about testifying focused on the harm done to the Crowns case in
    cross-examination and the dangers inherent in testifying.

[82]

Trial counsel was obliged to make it clear it
    was the appellants decision whether to testify. He was equally obliged to give
    the appellant the full benefit of his advice, including an explanation of his
    reasons for that advice. In my view, counsel met those obligations in his
    discussions with the appellant. The appellant made an informed decision not to
    testify.

[83]

Trial counsel was not obliged to go through all
    of the evidence and identify the pros and cons of testifying and not testifying
    associated with each piece of evidence. Nor was counsel obliged to provide
    advice based on a hypothetical assessment of the evidence that conflicted with counsels
    actual assessment. Counsel had fully explained to the appellant why he did not
    think the appellant should testify. The explanation included counsels
    assessment of the credibility of the Crown witnesses and the risks inherent in
    the appellant testifying. The reasonable professional assistance standard did
    not require trial counsel to go on and explain to the appellant how M.A.s
    credibility, which trial counsel believed was badly damaged on
    cross-examination, could be further damaged were the appellant to act against
    his advice and take the very real risk of testifying so he could give evidence about
    the screenshot in the hope the jury would believe that evidence and have yet
    another reason to disbelieve M.A. I have difficulty seeing how that kind of
    information could assist the appellant in deciding whether to testify.

[84]

Counsel for the appellant submitted this case is
    on all fours with
R. v. Gadam
, 2019 ONCA 345. In
Gadam
, this
    court held trial counsel provided ineffective assistance when he failed to authenticate
    certain phone records that had been put to the complainant. Counsel submits the
    failure of counsel in
Gadam
to authenticate the telephone records
    stands on exactly the same footing as the failure to authenticate the
    screenshot in this case.

[85]

There is a superficial similarity in the two
    cases. In
Gadam
, the
complainant
    had described the accused as only an acquaintance. It was the defence position the
    accused and the complainant were having an extramarital affair. Counsel for the
    accused put telephone records to the complainant showing some 900 calls between
    the complainant and the accused, half of which were initiated by the
    complainant. The complainant denied the authenticity of the records. Even
    though the trial judge warned counsel the records would be inadmissible unless authenticated,
    trial counsel took no steps to authenticate them, either through the service
    provider or the accused. The trial judge gave the records no weight.

[86]

On appeal in
Gadam
, the Crown conceded
    trial counsel had provided ineffective assistance. This court, in a brief
    endorsement, accepted the Crowns concession. As I read the reasons, the court held
    counsels failure to authenticate the telephone records amounted to ineffective
    assistance. Those records could have been used, not only to impeach the
    complainants credibility, but as powerful circumstantial evidence the accused
    and complainant were something more than mere acquaintances.

[87]

Gadam
did not
    turn on the adequacy of counsels advice about testifying.
Gadam
found
    ineffective assistance in counsels unexplained failure to produce what was
    potentially very important evidence for the accused. That evidence was presumably
    readily available, either through the evidence of the appellant, or the service
    provider.

[88]

There is no suggestion in this case the failure
    to authenticate the screenshot amounted to ineffective assistance. Nor could the
    authentication of the screenshot have provided substantive evidence in support
    of the defence position at trial. This claim relates exclusively to the
    adequacy of the advice given in respect of the decision to testify.
Gadam
does not assist the appellant.

[89]

The appellant has not
    satisfied me counsel failed to exercise reasonable skill and judgment in the
    course of advising the appellant about testifying. The ineffective assistance
    of counsel claim fails at the performance requirement.

[90]

Having concluded counsels representation met
    the reasonableness standard and was therefore not ineffective, there is no
    basis to conclude counsels representation led to a miscarriage of justice. I
    will, however, make one observation relevant to the miscarriage of justice
    inquiry required when an ineffective assistance of counsel claim is advanced.

[91]

An accused is denied his right to choose whether
    to testify when counsel actually makes the decision, or when counsel provides
    no advice or advice that is so wanting, as to preclude the accused from making
    a meaningful decision about testifying. In those situations, counsels ineffective
    representation denies the accused the right to make a fundamentally important
    decision about the conduct of his defence. That denial goes to the appearance
    of the fairness of the trial, if not the actual fairness of the trial. Either
    results in a miscarriage of justice, regardless of the impact of the ineffective
    representation on the reliability of the verdict: see
R. v. D.G.M.
, at
    paras. 32-36;
R. v. Stark
, at para. 31;
R. v. Eroma
, 2013
    ONCA 194, at para. 8
.

[92]

Assuming
    trial counsels advice was unreasonable because he failed to discuss the
    screenshot, I do not think trial counsels advice can be seen as the equivalent
    of denying the appellant the right to decide whether to testify, or the
    equivalent of providing no meaningful advice to the appellant. Even if the
    advice was rendered ineffective by the failure to explain the evidentiary
    status of the screenshot, the appellant still made the decision not to testify
    after a detailed discussion with trial counsel in which the relevant factors
    were canvassed. This was not a case where the appellant was denied a right to
    control his own defence.

[93]

In my view,
    the kind of ineffective assistance alleged here does not automatically
    undermine the fairness, or appearance of fairness, of the trial. To succeed on
    an ineffective assistance of counsel claim like this one, the appellant must
    demonstrate counsels failure to refer to the screenshot when discussing whether
    the appellant should testify had a negative impact on the reliability of the
    verdict. To do so, the appellant must demonstrate there is a reasonable
    prospect he would have testified, had he been told his evidence was necessary
    to authenticate the screenshot.

[94]

The appellant insisted he would have testified even
    if trial counsel advised him not to testify, had he understood his evidence was
    necessary to authenticate the screenshot. The appellant asserted, wrongly, the
    authentication of the screenshot could prove his innocence. As explained
    above, the screenshot could only be used to impeach the complainants
    credibility, assuming the jury believed the appellants unconfirmed evidence
    about the authenticity of the screenshot. The risks the appellant would take in
    testifying, as described to him by trial counsel, all applied to his evidence
    about the screenshot.

[95]

More to the point, I do not accept the
    appellants assertion he would have insisted on testifying. Had the appellant
    and trial counsel discussed the screenshot, nothing in that discussion would
    have altered trial counsels assessment about the weaknesses in the Crowns
    case, the real risks inherent in the appellant testifying, and the tactical
    advantage in going last to the jury. Counsels advice would not have changed
    and there is no reason to think the appellant would not have accepted trial
    counsels analysis and advice, even if it included reference to testifying in
    order to authenticate the screenshot. Why would the appellant suddenly reject
    counsels assessment about the inadequacies in the Crowns case and choose to
    run the risk of testifying, solely to potentially undermine T.M.s credibility,
    when, on the advice of his trusted lawyer, that credibility had already been
    sufficiently damaged?

[96]

The appellant may have come to believe, years
    after his trial, he would have insisted on testifying had he understood the screenshot
    would not otherwise be evidence of its contents. That belief stands between the
    appellant and a significant penitentiary sentence. Viewed from the perspective
    of the trial, I have no doubt had the fulsome discussion about testifying
    included a discussion about the screenshot evidence, the appellant would have followed
    counsels advice he should not testify. The trial would have proceeded exactly
    as it did, and the jury would have returned the same verdicts. There was no
    miscarriage of justice.


III



THE SENTENCE APPEAL

[97]

The appellant received a three-year sentence. The
    trial judge found that the appellant knew that that M.A. was 12-years old, when
    they were chatting on Facebook, when he went to the club to meet with her, when
    he took her back to his home, and when he engaged in sexual activity with her.
    Whatever may be said about the accuracy of the trial judges use of the term
    grooming, there was ample evidence the appellant built up a relationship
    through Facebook with a 12-year-old child and, when the opportunity arose, took
    advantage of that relationship to sexually abuse M.A.

[98]

I also reject the argument that the trial judge
    erred in her fact-finding on sentencing. The trial judge acknowledged the
    different verdicts arrived at by the jury and the limits those verdicts placed
    on her fact-finding. She was entitled to believe M.A.s evidence about the
    nature of the sexual activity, apart from the sexual intercourse.

[99]

The sentence was fit.


IV



conclusion

[100]

The appeals are dismissed.

Released:

DD NOV 20 2020

Doherty J.A.

I agree David Watt J.A.

I agree G. Pardu J.A.





[1]
When c
onsidering the availability of the defence created by
    s. 150.1(4), the trial judge relied on the interpretation of that provision in
    this courts jurisprudence as subsequently confirmed in
R.
    v. George
, [2017] 1
    S.C.R. 1021, at para. 8
. On appeal, counsel did not take issue with
    those principles, but argued the trial judge erred in finding no evidentiary
    basis for the s. 150.1(4) defence. We have addressed this argument in the terms
    in which it was put forward. Nothing said in these reasons should be taken as a
    comment on the jurisprudence post-dating this trial relating to the
mens rea
requirement when a complainants age is an
    element of the offence, considered apart from the mistaken belief defence in s.
    150.1(4): see
R. v. Morrison
, 2019 SCC 15, at
    para. 88;
R. v. Carbone
, 2020 ONCA 34, at paras.
    116-120.



[2]

There is nothing in the evidence proffered on the
    ineffective assistance claim indicating what the appellants evidence would
    have been about what M.A. said, if anything, about her age on the night of the
    alleged assaults.



[3]

It is difficult to know what was meant by confusing the
    jury. There is nothing in the material filed on the ineffective assistance of
    counsel claim about the substance of the appellants evidence had he testified.
    It would seem, based on this answer, he would have taken issue with virtually
    everything the Crown witnesses had said about the events on the night of the
    alleged assault.


