



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Gibson, 2021 ONCA 530

DATE: 20210723

DOCKET: C60448

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

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Gibson

Appellant

Brian Snell, for the appellant

Megan Petrie, for the respondent

Heard: November 3, 2020 by video conference

On appeal from the convictions
    entered by Justice Michael Code of the Superior Court of Justice on February
    13, 2012, and from the sentence imposed on February 1, 2013.

Watt J.A.:

[1]

The appellant, Paul Gibson, volunteered at a food bank. There he
    met and befriended J.C. He learned that J.C. was a grandmother. Her
    grandchildren were both boys, then seven and four years old.

[2]

Over time, the appellant became part of the boys lives. He often saw
    the boys. He took them on outings. He babysat them. He bought them gifts. He
    slept over at their grandmothers house and at the older boys home.

[3]

Late the following year, police arrested the appellant on six counts of
    sexual offences involving both boys.

[4]

After a trial before a judge of the Superior Court of Justice, the
    appellant was found guilty of sexual assault of one of the boys, R.K., and of
    sexual assault causing bodily harm of the other, A.C. The Crown was successful
    in having the appellant declared a dangerous offender. The trial judge imposed
    a sentence of detention for an indeterminate period.

[5]

The appellant appeals his convictions of the predicate offences, the
    decision declaring him a dangerous offender and the indeterminate sentence
    imposed on him.

[6]

These reasons explain why I would dismiss the appeals.

The Background Facts

[7]

The indictment alleged four offences against R.K., counts of sexual
    assault and sexual assault causing bodily harm and two counts of sexual
    interference. Each pair of counts was alleged to have occurred over a specific
    period of months, with some overlap between the periods.

[8]

The indictment also included two counts alleging offences of sexual
    assault causing bodily harm and sexual interference against A.C. These counts
    were also duplicative and related to the same period of time as those charged
    in respect of R.K.

[9]

The trial judge found the appellant guilty on all counts. He entered
    convictions of sexual assault on the count charging sexual assault causing
    bodily harm against R.K. and a conviction of sexual assault causing bodily harm
    on the count charging that offence against A.C. The judge entered stays of his
    findings on the remaining counts as duplicative or in accordance with the rule
    against multiple convictions (see
Kienapple v.
The Queen,
[1975]
    1 S.C.R. 729).

The Principals and their Relationship

[10]

During
    the relevant time, the appellant was a 33-year-old single man who lived in
    Parkdale and worked at a printing business in Scarborough. He volunteered at a
    food bank near where he lived.

[11]

J.C.
    was a grandmother who visited the food bank at which the appellant volunteered.
    She lived in a small apartment nearby, a few minutes away from where the
    appellant lived.

[12]

S.C.
    and N.C. were J.C.s daughters. R.K. lived with his mother, S.C. Their house
    was about 40 minutes away from J.C.s apartment. A.C. lived with his mother,
    N.C., in a small town to the east of Toronto.

[13]

Towards
    the end of 2008, the appellant met J.C. at the food bank. They became friends.
    Over the ensuing months, the appellant became closer to J.C. and her family.
    The following summer, J.C. was spending time with her two grandsons nearly
    every day. The appellant would see the boys two or three times a week. He took
    them on excursions. Swimming. Bowling. The movies. Sometimes with J.C., other
    times not. The appellant also babysat the boys at J.C.s apartment and at
    R.K.s home. Sometimes, other adults would be present, other times, the
    appellant would be alone with the boys. He usually brought candy or trinkets.
    From time to time, the appellant spent the night at J.C.s apartment or R.K.s
    home. He referred to R.K. as my son.

The Summer Months and Centre Island

[14]

One
    day in the summer of 2009, J.C. mentioned to the appellant that she was taking R.K.
    to Centre Island. The appellant asked whether he could join them with his
    niece. On the day of the trip, the appellant appeared. His niece was not with
    him. The appellant said his niece had other commitments. He accompanied J.C.
    and R.K. to Centre Island. The appellant went on rides with R.K.

[15]

J.C.,
    the appellant and R.K. returned to Centre Island a week later. The appellant
    accompanied R.K. on several rides, including a number of trips on R.K.s
    favourite ride, the Haunted House. On the Haunted House ride, a car travels
    through the dark. R.K. testified that during this ride the appellant touched
    R.K.s penis and placed R.K.s hand on the appellants penis.

[16]

J.C.
    decided to get some ice cream at a concession. R.K. told his grandmother that
    he needed to go to the bathroom. J.C. told him to wait until she got the ice
    cream. When she came out of the ice cream stand, she did not see R.K. or the
    appellant. The ice cream began melting in the cones. She then noticed R.K. and
    the appellant coming from the washroom area. When J.C. asked her grandson where
    he had been, R.K. responded that he had to go to the bathroom very bad and
    could not wait.

[17]

Several
    times over the summer, J.C. saw the appellant at her apartment and at S.C.s
    house as she babysat either or both of her grandchildren. A.C. and his mother
    spent much of the summer at S.C.s house. The appellant was often there. He
    slept at both J.C.s apartment and S.C.s house while J.C. babysat her
    grandsons.

[18]

From
    time to time, J.C. left her grandsons alone with the appellant when she did
    various errands. The appellant brought small gifts for the boys and took them
    on outings to the movies and bowling without their grandmother.

[19]

On
    the Labour Day weekend, the appellant joined the family at a rented cabin in a
    campground. He swam and played mini-golf with the boys. The appellant slept
    alone on a pull-out couch in the living room. One morning, A.C. was found with
    the appellant on the same couch.

The Fall Months

[20]

The
    appellant saw the family less frequently once the boys returned to school. He
    saw them on Thanksgiving, on Halloween and at R.K.s birthday party in early
    November.

[21]

Early
    in the fall, R.K. complained to his mother that his bum was hurting and that
    it hurt when he had to go to the bathroom. S.C. saw a rash around her sons
    anus. When ointment was applied, the rash disappeared, only to reappear later.
    It disappeared completely after November.

[22]

On
    one occasion, the appellant and R.K. were wrestling in the living room at
    R.K.s house. J.C. told them to settle down. R.K. ran at the appellant, kicked
    him very hard between the legs and swore at the appellant. R.K. said, you
    stupid asshole and you ugly asshole. When pressed for an explanation, R.K.
    told his grandmother, Im mad.

[23]

Before
    R.K.s birthday in early November, his mother, S.C., noticed a change in her
    sons behaviour. He became distant and withdrawn. He was angry, fought and
    talked back. His grades declined. He wet the bed and had nightmares.

[24]

The
    family had a birthday party for R.K. in November. The appellant brought a
    banner he had made for the occasion at the print shop where he worked. S.C.
    noticed the appellant hug R.K. She thought the hug was too close and told the
    appellant to stop.

The First Complaint

[25]

When
    N.C. came to pick up her son the day after the birthday party for R.K., she
    noticed blood in A.C.s stool. When they returned home, N.C. put A.C. in the
    bathtub. He screamed hysterically. [M]y bum hurts, its itchy mummy, its
    scratchy mummy. She asked what had happened. A.C. responded, Paul Number Two
    put his pee pee in my bum. After composing herself, she looked at her sons
    anus and saw rips and tears and redness, and she applied some appointment.
    Paul Number Two was the name both boys used for the appellant.

The Second Complaint

[26]

Later
    the same evening, N.C. called her sister, S.C. She explained what A.C. had said
    and suggested that S.C. speak to R.K. S.C. asked R.K. whether Paul Number Two
    had touched him in any way. She then told R.K. what A.C. had told his mother.
    R.K. said, Mum he did it to me too, put his head down and looked away from
    his mother. S.C. was shocked. She may have asked a few more questions but did
    not want to discuss it further with her son.

The Evidence of R.K.

[27]

R.K.
    was a ten-year-old grade five student when he testified from outside the
    courtroom at trial. His video statement was admitted and marked as an exhibit.
    He described Paul Number Two as having orange hair, freckles and crooked
    eyes, which appeared as if they were not looking at you. (The appellant is
    somewhat cross-eyed.)

[28]

R.K.
    recalled that on a trip to Centre Island, Paul Number Two put his hands in
    R.K.s pants, then around his pee pee as they rode together on the Haunted
    House. This happened twice. Paul Number Two then took R.K.s hand and put it
    in his pants beside his pee pee and on it.

[29]

After
    the rides, R.K. went with Paul Number Two to the washroom. It was a
    wheelchair washroom beside the public washroom. No one else was inside. The
    door could be locked from the inside. Paul Number Two took R.K. to the sink,
    stood behind him, pulled R.K.s pants down and put his pee pee in R.K.s
    bum. While doing this, Paul Number Two said nothing. At some point, either
    in the washroom or on the Haunted House ride, Paul Number Two told R.K.
    that he would kill R.K.s mother if R.K. told anyone what had happened. On two
    subsequent occasions when no one else was home, at J.C.s apartment and R.K.s
    home, Paul Number Two pulled R.K.s pants down, got on top of him and put
    his pee pee in my bum.

[30]

At
    trial, R.K., unprompted, testified that Paul Number Two pulled down his
    (R.K.s) pants and put his tongue on his (R.K.s) pee pee, then put his whole
    mouth on R.K.s pee pee. This happened two or three times a day when they
    were alone at J.C.s apartment or R.K.s house.

[31]

R.K.
    acknowledged that at trial he said things that he had not said before about
    what Paul Number Two had done to him. He explained that he did not feel so
    shy anymore after watching his video and having his evidence at the preliminary
    inquiry read to him. He also remembered incidents at the movies (Paul Number
    Two put his hands down R.K.s pants) and in the washroom at a bowling alley
    (Paul Number Two did it).

The Evidence of A.C.

[32]

A.C.
    gave evidence outside the courtroom after promising to tell the truth. When he
    testified, he was six years old and in grade one. His police interview was
    admitted under s. 715.1 of the
Criminal Code
, R.S.C. 1985, c. C-46
.

[33]

In
    his police interview, A.C. said that somebody hurted him by putting his pee pee
    in A.C.s bum. This happened more than one time  like one hundred in R.K.s
    bedroom at his house. A.C. explained that every time he moved, Paul Number
    Two would start all over again.

The Appellants Explanation

[34]

In a
    video-recorded interview after his arrest, the appellant acknowledged having
    met J.C. when she was a customer at the food bank where he worked as a
    volunteer. He met both J.C.s daughters and her grandsons and went to various
    activities with the boys, sometimes with J.C., but others only with R.K. or
    both boys. On some nights, he was alone with R.K. He denied seeing the boys
    between Christmas 2008 and school break in the following summer. He was lonely
    and never had kids in his life. He came to care about the boys, especially R.K.

[35]

The
    appellant testified at trial. He admitted a Youth Court record consisting of
    convictions for several counts of sexual offences. At the time of the offences
    charged, he worked part-time at a printing company and volunteered at the food
    bank where he met J.C. He acknowledged that he went to Centre Island once with
    J.C. and her two grandsons. As a self-described ride fanatic, he went on
    rides with both boys. He rode the Haunted House with R.K. several times. They
    sat together. The appellant denied putting his hands down R.K.s pants on the
    ride, taking him to the washroom or threatening him. He was never at Centre
    Island with only J.C. and R.K. There was no ice cream shop on the island. The
    familys policy about washroom visits was that either J.C. or S.C. would take
    R.K. to the womens washroom.

[36]

The
    appellant admitted that on many occasions he would be alone with the boys when
    J.C. was out doing errands. He also testified that he had taken R.K. bowling
    and to the movies in the evening. When required, the appellant would escort
    R.K. to the washroom, but did not enter the stall with him. During the summer
    of 2009, the appellant would sometimes stay at S.C.s house on weekends. He
    would spend time alone with R.K. in his bedroom, and at other times, with both
    boys playing videogames. He agreed that on the camping trip at the end of the
    summer, A.C. got into bed with him because he was cold. About ten minutes
    later, N.C. appeared and told her son to get out of bed.

[37]

The
    appellant came to regard R.K. as his son. R.K. referred to the appellant as
    his dad. The appellant tried to downplay this relationship, but a very strong
    bond developed between them. The appellant treated A.C. in a similar way, but
    their relationship was not the same as between the appellant and R.K.

[38]

The
    appellant denied any sexual impropriety with either R.K. or A.C.

The Assault

[39]

The
    appellant gave evidence that he last saw R.K. and A.C. at R.K.s birthday party
    in early November 2009. He was expected to get R.K. a flat-screen television
    for his birthday, but he brought a smaller gift instead. The appellant was
    alone with A.C. in the living room when he stayed over that night. He denied
    any sexual contact with him.

[40]

According
    to the appellant, S.C. invited him to her house about two weeks after the
    birthday party. She wanted him to babysit while she attended a concert. He
    agreed. When he arrived, S.C. and A.C.s biological father were there. A.C.s
    father punched the appellant in the face and said were going to talk. A
    struggle followed. S.C. stabbed the appellant in the shoulder with a knife.
    A.C.s father said, [Y]ou want to fuck [A.C.]. S.C. said, [Y]ou want to fuck
    the children. The appellant lost his shirt in the ensuing struggle, along with
    his jacket and sweater. His lip was split. He escaped, took a taxi to the
    subway and went to his employers home in Scarborough.

[41]

S.C.
    denied having seen the appellant after R.K.s birthday party and having invited
    him to her home to babysit.

The Medical Evidence

[42]

Physical
    examinations were conducted on both A.C. and R.K. Anal fissures and redness
    surrounding the anal area were visible on A.C. with some redness in R.K.s anal
    area. These are non-specific findings and neither confirm nor refute the
    possibility of sexual abuse.

The Appeal from Conviction

[43]

I
    turn first to the appeal from conviction.

The Grounds of Appeal

[44]

The
    appellant urges three grounds of appeal on his challenge to the convictions
    entered at trial. He says that:

i.

the trial judge erred in failing to resolve a conflict in the evidence;

ii.

the trial judge erred in his use of circumstantial evidence; and

iii.

a miscarriage of justice occurred because trial counsel provided
    ineffective assistance to the appellant in responding to the charges.

I will consider these grounds as follows.

Ground #1: Failure to Resolve a Conflict in the Evidence

[45]

A
    brief reference to the evidence on which this complaint is grounded will
    provide the background necessary to evaluate its merits.

The Essential Background

[46]

In
    general terms, the error alleged has to do with evidence about an incident in
    November 2009 involving the appellant, S.C. and A.C.s biological father. The
    only witness who gave direct evidence about this incident was the appellant.
    S.C. denied any contact with the appellant after R.K.s birthday party in
    November 2009. A.C.s biological father did not testify at trial.

[47]

According
    to the appellant, R.K.s mother, S.C., called him (the appellant) the weekend
    following R.K.s birthday and asked whether he could babysit. S.C. wanted to go
    to a concert. The appellant agreed. When he arrived thinking he was going to
    babysit, S.C. and A.C.s biological father were there. They attacked him.
    A.C.s biological father punched the appellant in the face. S.C. stabbed him in
    the shoulder. Each accused the appellant of sexual impropriety with the
    children.

[48]

S.C.
    denied seeing the appellant after R.K.s birthday party. She did not call the
    appellant after the birthday party or invite him to her home to babysit.

[49]

Both
    the appellants mother and his employer confirmed injuries to the appellants
    body and his distraught state.

The Reasons of the Trial Judge

[50]

In
    his written reasons, the trial judge said the principal relevance of the
    appellants employers evidence was to explain his post-offence conduct and to
    cast light on the conduct of the family members after the birthday party and
    before they went to the police about a week later.

[51]

The
    trial judge concluded that the appellants post-offence conduct did not assist
    him in assessing the appellants credibility as a witness at trial. The judge
    considered this evidence and evidence about the appellants Youth Court record
    as an explanation for the appellants failure to go to the hospital, the police
    or his home in Parkdale near J.C. The judge concluded:

It is not necessary to make definitive findings as to who was
    involved in the confrontation and exactly what happened. I am satisfied that a
    confrontation of some kind happened. The defence witnesses have reliably
    testified that Gibson had a bloody lip, he had lost his jacket, he was
    distraught, and he immediately told his mother and his employer about a confrontation
    with [C.]s family members. This all occurred on November 21, 2009. In the
    circumstances, it was understandable that Gibson would feel trapped and would
    turn to his employer and to his family, and not to the police. Indeed, P.C.
    Vieiras forceful reliance on Gibsons prior Youth Record during the police
    interview on November 29, 2009, tends to confirm Gibsons view that the police
    would use his prior convictions against him. I edited out this part of the
    interview, with the Crowns consent, on the basis that it was irrelevant and
    prejudicial.

The Arguments on Appeal

[52]

The
    appellant contends that there was no serious dispute that S.C. was involved in
    the assault on him following R.K.s birthday. It necessarily follows that her
    evidence denying any involvement was a lie. This demonstrated her willingness
    to commit perjury to put herself in a better light. That she was willing to do
    so and actually did so was a relevant factor for the trial judge to consider in
    assessing her credibility and the reliability of her evidence.

[53]

The
    trial judge erred, the appellant says, in failing to consider S.C.s perjury on
    this issue as a relevant factor in assessing her credibility and the
    reliability of her evidence. Instead, he accepted that the confrontation
    occurred, but made no finding about S.C.s participation or the effect of false
    testimony about it on her credibility. It was incumbent on him to do so, rather
    than simply accept S.C.s evidence at face value.

[54]

The
    respondent points out that a trial judge is not legally obliged to resolve
    every conflict in the evidence that arises at trial. The appellants allegation
    is a claim that the trial judge misapprehended the evidence adduced at trial.
    He failed to consider an item of relevant evidence  S.C.s perjury  on the
    issue of her credibility. But the appellant must do more than simply point to a
    misapprehension of evidence. He must also establish a link or nexus between the
    misapprehension and an adverse result at trial. This is a stringent standard,
    one that the appellant has failed to meet.

The Governing Principles

[55]

The
    principles that control our decision on this issue are well known. They are in
    no need of elaboration. A handful of brief points will suffice.

[56]

First,
    findings on credibility are notoriously difficult to dislodge on appeal. They
    are subject to deference and resistant to appellate interference in the absence
    of palpable and overriding error:
R. v. R.E.M.
, 2008 SCC 51, [2008] 3
    S.C.R. 3, at paras. 28, 32;
R. v. Dinardo
, 2008 SCC 24, [2008] 1
    S.C.R. 788, at para. 26;
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R.
    621, at paras. 10, 20; and
R. v. Plehanov
, 2019 BCCA 462, 383 C.C.C.
    (3d) 473, at para. 52, leave to appeal refused, [2020] S.C.C.A. No. 489.

[57]

Second,
    a trial judge is under no obligation to resolve every conflict in the evidence
    adduced at trial:
R.E.M
., at para. 20;
R. v. Slatter
, 2018 ONCA
    962, 369 C.C.C. (3d) 112, at para. 102; and
R. v. Stark
(2004), 190
    C.C.C. (3d) 496 (Ont. C.A.), at para. 12.

[58]

Third,
    a misapprehension of evidence includes, but is not limited to, a failure to
    consider relevant evidence and a failure to give proper effect to evidence
    adduced at trial:
R. v. Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont.
    C.A.), at p. 218.

[59]

Fourth,
    to determine whether an allegation of misapprehension of evidence has rendered
    a trial unfair and caused a miscarriage of justice, a reviewing court must
    examine the nature and extent of the misapprehension and its significance to
    the verdict rendered in light of the requirement in our law that a verdict must
    be based exclusively on the evidence adduced at trial. The misapprehension must
    be at once material and occupy an essential place in the judges reasoning
    process leading to a finding of guilt:
Morrissey
, at p. 221;
R. v.
    Doodnaught
, 2017 ONCA 781, 358 C.C.C. (3d) 250, at para. 72.

[60]

Fifth,
    the standard set for a misapprehension of evidence to warrant appellate
    reversal is stringent. An error in the assessment of the evidence will amount
    to a miscarriage of justice only where striking it from the judgment would
    leave the trial judges reasoning on which the conviction was based on unsteady
    ground:
Doodnaught
, at para. 73, citing
R. v. Sinclair
, 2011
    SCC 40, [2011] 3 S.C.R. 3, at para. 56.

The Principles Applied

[61]

I
    would not give effect to this ground of appeal.

[62]

For
    discussion purposes, I accept that a trier of fact is entitled to consider in
    their assessment of a witness evidence that the witness has given false
    evidence on a particular issue or subject. Indeed, lay triers of fact are so
    instructed when advised about how they are to assess the evidence given during
    a trial.

[63]

The
    principal issues at the appellants trial were twofold. Did the offences
    alleged actually take place? And did the appellant commit them? The evidence
    which forms the subject of this ground of appeal was central to neither of
    those issues. Rather, it resided on the periphery of the controverted issues.

[64]

Relatedly,
    this is not a case in which the misapprehension relates to the substance of the
    evidence and that misapprehension is relied on to establish the appellants
    guilt. The fault here is said to be in failing to consider an item of evidence 
    an alleged lie about a witness extrinsic misconduct  in assessing that
    witness credibility and the reliability of her evidence. The trial judge was
    keenly aware of the problems associated with S.C.s testimony. He commented
    during closing submissions that S.C. was not the most reliable witness in the
    world.

[65]

Further,
    the law imposes no obligation on a trial judge to demonstrate that they have
    appreciated every aspect of every piece of relevant evidence. Nor are they
    required to resolve every conflict in the evidence, especially those that are
    not material and do not occupy a central place in the reasoning process leading
    to the verdict.

[66]

This
    ground of appeal fails.

Ground #2: Improper Use of Circumstantial Evidence

[67]

The
    second ground of appeal takes aim at the trial judges use of circumstantial
    evidence to confirm the direct evidence of the complainants. The alleged error
    does not require any additional reference to the evidence, only a brief
    illustration from the reasons of the trial judge.

The Reasons of the Trial Judge

[68]

The
    appellant focuses on a single paragraph of the trial judges lengthy reasons.
    However, to be fair and faithful to the obligation to read the reasons as a
    whole, the two paragraphs immediately following the impugned passage should be
    included:

I appreciate that all of the above items of circumstantial
    evidence, if analyzed separately, are open to some innocent explanation. The
    unusual evidence of association and opportunity, for example, is said to be
    explained by the fact that Gibson was very lonely after the death of his
    father, according to the defence evidence. The anal rash may have been due to
    constipation or some other innocent source of irritation, as the SCAN unit
    report warns. The evidence of [R.K.]'s anger towards Gibson, and his change of
    behavior in the fall, may have been caused by Gibson's failure to get [R.K.] a
    flat screen television, or some other unknown but innocent cause, according to
    the defence evidence.

The proper way to analyze these potential explanations for each
    piece of circumstantial evidence is not piecemeal, in isolation from the other
    evidence. Rather, they are to be assessed together and in the context of all
    the evidence. Furthermore, the individual items of evidence are not to be
    subjected to the standard of proof beyond reasonable doubt, which applies to
    the essential elements of the offences and to the verdicts. As Taschereau J
.
put it, speaking for six members
    of the Court in
R. v. Cot
é

(1941), 71 C.C.C. 75 at 76 (S.C.C.):

It may be, and such is very often the case, that the facts
    proven by the Crown, examined separately have not a very strong probative
    value; but all the facts put in evidence have to be considered each one in
    relation to the whole, and it is all of them taken together, that may
    constitute a proper basis for a conviction.

When the entire body of circumstantial evidence is considered
    together, and is considered together with [R.K.]s own internally compelling
    testimony, I am satisfied that the innocent explanations for individual items
    of evidence should be rejected. See:
R. v. Morin
,
supra
at
    205-211;
R. v. Bouvier
(1984), 11 C.C.C. (3d) 257 at 264-6 (Ont.
    C.A.), affd. 22 C.C.C. (3d) 576 n (S.C.C.);
R. v. J.M.H.
, 2011 S.C.C.
    45;
R. v. Morin
(1992), 76 C.C.C. (3d) 193 at 200 (S.C.C.);
R. v.
    Lynch
,
Malone and King
(1978), 40 C.C.C. (2d) 7 at 19 (Ont.
    C.A.).

In conclusion concerning [R.K.]s account, I found his
    testimony internally credible and reliable. In addition, there is a substantial
    amount of external circumstantial support for his account. In short, I believed
    his testimony, even after approaching it with caution and after looking for
    support from other credible and reliable evidence.

The Arguments on Appeal

[69]

Despite
    the absence of any common law or statutory rule requiring corroboration of the
    unsworn evidence of child witnesses, the trial judge concluded that he had to
    approach the evidence of R.K. and A.C. with caution. Each gave direct evidence
    which, if accepted, proved the offences charged. The trial judge considered
    that, absent some supporting evidence, it would not be safe to ground a
    conviction on the evidence of A.C. on its own.

[70]

The
    trial judge recognized, the appellant notes, that the only evidence potentially
    confirmatory of the testimony of the complainants was circumstantial in nature.
    However, according to the appellant, the trial judge lost sight of the
    fundamental principle that circumstantial evidence may only be used to convict
    a person where guilt is the only rational inference that arises from that
    evidence. More narrowly, the trial judge relied on the equivocal SCAN evidence
    about the significance of anal fissures in children as confirmatory of the
    complainants testimony. This evidence lacked any inculpatory force. It was
    non-specific in the sense that anal fissures were common in non-abused
    children, not unique to those who had been abused in the manner alleged here.
    It follows, the appellant contends, that the trial judge erred in relying on
    this evidence as confirmatory of the complainants allegations. This error
    requires a new trial.

[71]

The
    respondent rejects any suggestion of error.

[72]

According
    to the respondent, it was open to the trial judge to conclude, in the
    circumstances of this case, that the evidence of the complainants should be
    approached with caution. The trial judge also correctly recognized that the
    potentially confirmatory evidence was circumstantial in nature.

[73]

Where
    an offence, or an essential element of an offence, falls to be proven wholly or
    substantially by circumstantial evidence, the respondent continues, each item
    of circumstantial evidence need not bear the entire burden or meet the required
    standard of proof. It is the whole of the evidence, often greater than the sum
    of its individual parts, that must discharge the burden and meet the standard
    of proof.

[74]

The
    respondent says that, in isolation, individual items of circumstantial evidence
    are often equivocal. They give rise to more than one inference, not all of them
    inculpatory. But that does not make them irrelevant for consideration on a
    particular issue. It is the cumulative force of the evidence that is important
    and controlling. Here, the SCAN evidence confirmed rips and tears around A.C.s
    anus. The SCAN report confirmed fissures. It confirmed redness around R.K.s
    anus at the time S.C. and J.C. noticed an unusual rash there. The trial judge
    recognized the limitations on the SCAN evidence. He was entitled to find, on
    the evidence as a whole, that the complainants accounts of anal penetration by
    the appellant were confirmed.

The Governing Principles

[75]

Some
    principles about the nature of circumstantial evidence and its use as proof of
    facts in a criminal case help resolve this claim of error.

[76]

First,
    circumstantial evidence is all about inferences. Individual items of
    circumstantial evidence give rise to a range of inferences. The available
    inferences must be reasonable according to the measuring stick of human
    experience. That there may be a range of inferences available from an
    individual item of circumstantial evidence does not render the item of evidence
    irrelevant or neutralize its probative value:
R. v. Calnen
, 2019 SCC
    6, [2019] 1 S.C.R. 301, at para. 112,
per
Martin J. (dissenting, but
    not on this point), citing
R. v. Smith
, 2016 ONCA 26, 333 C.C.C. (3d)
    534, at para. 77.

[77]

A
    second point concerns the standard of proof required where proof of the offence
    or one or more of its essential elements depends wholly or substantially on
    circumstantial evidence. In such a case, an inference of guilt drawn from
    circumstantial evidence must be the only reasonable inference available on that
    evidence:
R. v. Villaroman
, 2016 SCC 33, at paras. 30, 32-34.

[78]

Third,
    the standard of proof applies to the evidence taken as a whole, not to each
    individual item of circumstantial evidence:
R. v. Morin
, [1988] 2
    S.C.R. 345, at pp. 359, 362. See also
R. v. Morin
, [1992] 3 S.C.R. 286,
    at p. 295-96.

[79]

Finally,
    where proof of an essential element or the offence charged depends wholly or
    substantially on circumstantial evidence, it is the cumulative effect of all
    the evidence, taken together, each item in relation to another and the whole,
    that must be considered in determining whether the standard of proof has been
    met:
C
o
te

v. The King
(1941), 77 C.C.C. 75 (S.C.C.),
    at p. 76.

The Principles Applied

[80]

I
    would not accede to this ground of appeal.

[81]

First,
    this is not a case in which guilt or an essential element of any offence charged
    fell to be established entirely or substantially based on circumstantial
    evidence. Each complainant gave direct evidence which, if believed, established
    the essential elements of each offence charged beyond a reasonable doubt.

[82]

Second,
    the issue to which the circumstantial evidence in controversy was directed was
    not guilt or an essential element of any offence with which the appellant was
    charged. The evidence in issue was among several items of evidence offered to
    confirm the testimony of the complainants, whose evidence the trial judge
    concluded required a cautious approach. It did not have to implicate the
    appellant in any offence charged. Its role was to ensure the trier of facts
    faith in the reliability of the complainants account. It was not an essential
    element of the offence, carried no burden and was not subject to any standard
    of proof.

[83]

Third,
    the argument advanced is at odds with the nature of circumstantial evidence and
    its use as a means of proof. Circumstantial evidence is all about inferences.
    Each item of circumstantial evidence gives rise to a range of inferences. That
    it does so is the very essence of circumstantial evidence. This does not mean
    it ceases to be relevant or loses its probative value. Each item of
    circumstantial evidence is but a link in the chain of proof. It is not itself required
    to bear the whole burden or satisfy the legal standard of proof.

[84]

Finally,
    a review of the reasons of the trial judge clarifies that it was the report of
    the redness or injury to the anus that was confirmed by the SCAN report. The
    rips and tears around A.C.s anus were confirmed by the presence of fissures,
    R.K.s rash by observations of redness. The trial judge acknowledged the
    limitations on this evidence and did not make improper use of it.

Ground #3: Ineffective Assistance at Trial

[85]

This
    is the principal ground of appeal against the convictions of the predicate
    offences. It alleges errors and omissions by trial counsel in pre-trial
    preparation and in the conduct of the trial.

[86]

Our
    evaluation of this ground of appeal is based on the trial record supplemented
    by the affidavits of the appellant, his mother and trial counsel; and
    transcripts of the cross-examinations conducted on those affidavits. To better
    understand the nature of the appellants complaints, some additional background
    is necessary.

The Essential Background

[87]

Trial
    counsel was called to the Bar in Ontario in 1994, about 18 years before the
    appellants trial began. She practised in East Asia for five years and returned
    to Ontario in 1999.

[88]

Trial
    counsel was a sole practitioner. She practised out of her home. She had no
    staff to assist her. Her practice included family, criminal, mental health and
    child protection cases. When she represented the appellant, she had conducted
    fewer than five criminal trials, two of which were in the Superior Court of
    Justice.

[89]

After
    the appellant had been convicted, trial counsel was unsure whether she should
    continue as counsel during the sentencing proceedings. She had never
    represented anyone in dangerous offender proceedings. And she was not qualified
    under Legal Aid Ontario (LAO) rules to act as defence counsel in dangerous
    offender proceedings.

[90]

The
    appellant wanted trial counsel to continue to advocate on his behalf in the
    sentencing proceedings. His purpose, he insisted, was to get her back before
    the court where she could own up to the mistakes she had made in her conduct of
    his trial. Trial counsel was not the first lawyer about whom the appellant had
    claimed incompetence. A previous lawyer had royally messed up his defence.
    And another lawyer was stupid, stupid, stupid.

[91]

The
    appellant signed a direction that he wished trial counsel to continue as his
    lawyer in the dangerous offender proceedings. LAO agreed that she could do so,
    provided that she had senior criminal counsel to whom she could turn for
    advice. Trial counsel consulted senior criminal counsel once for the purposes
    of the dangerous offender proceedings.

[92]

The
    appellant advances several discrete grounds which he says cumulatively
    establish the pervasive incompetence of trial counsel. The several subheadings
    which follow endeavour to capture the essence of the various complaints.

The Defence Theory

[93]

Trial
    counsels theory of the case was that A.C. may have been sexually assaulted,
    but that the perpetrator was an unknown third party, not the appellant. In
    respect of R.K., the theory was that R.K. had not been abused but rather had
    lied that he had been because of suggestions or pressure from family members.
    Trial counsel did not think that a childs mother could imagine the events
    alleged and instill such an idea in her children.

[94]

Trial
    counsel cross-examined A.C.s mother, N.C., about other men who had contact
    with A.C. during the period alleged in the indictment, as well as about A.C.s
    use of the descriptive Paul Number Two. She confronted N.C. with her
    preliminary inquiry testimony that A.C. had said someone had put their pee pee
    in his bum.

[95]

Trial
    counsel also cross-examined R.K.s mother, S.C., about other men who were in
    her home where the alleged abuse occurred at the time of the allegations, as
    well as their appearance. This included S.C.s then boyfriend, who shared the
    same first name as the appellant. Trial counsel also confronted the
    officer-in-charge of the investigation that police had not interviewed any
    other males who were present in R.K.s home at the time the offences were
    alleged to have been committed there.

[96]

In
    closing argument, trial counsel made detailed submissions on the identity of
    the alleged assailant.

The Cross-Examination of Crown Witnesses

[97]

The
    appellant alleges that trial counsel failed to adequately cross-examine the
    principal Crown witnesses at trial.

R.K.

[98]

R.K.
    initially denied having been sexually abused by the appellant when he was first
    asked about it by his mother. He provided no details about any abuse when
    interviewed by police, but he elaborated expansively at trial. There, trial
    counsel focused on the fact, nature and extent of these elaborations and
    suggested they were fabricated. Trial counsel also cross-examined R.K. about
    being questioned by his mother, S.C., after she told him about A.C.s
    disclosure. R.K. did not remember his mothers questioning but did admit that
    he gave evidence about new things at trial. He denied that the new things
    were influenced by anything his mother, aunt or grandmother had said.

[99]

Trial
    counsel acknowledged that she did not cross-examine R.K. about his trip to
    Centre Island with his grandmother and the appellant, although, the appellant
    says, this trip was central to the allegations against the appellant. Counsel
    did not visit the scene and did not apply to re-open the case when apprised of an
    email exchange between the appellants mother and Centre Island ticket sales
    about the washroom and other facilities on Centre Island. (More on this below,
    at paragraphs 123-26.) Nor did she ask R.K. about kicking the appellant in the
    groin or being hugged by him at the birthday party.

[100]

The appellant also
    complains that trial counsel elicited prejudicial evidence about instances of
    sexual assault when the appellant took R.K. to the movies and bowling. Evidence
    had already been adduced in the appellants police interview and from J.C. and
    S.C. that the appellant had taken R.K. to the movies and bowling. Trial counsel
    used this first-time disclosure at trial of abuse on these outings to
    demonstrate R.K.s malleability and testimonial unreliability.

A.C.

[101]

The appellant
    complains that trial counsel did not ask any questions of A.C., such as what
    his mother or aunt had said to him about the incidents or how often he had
    talked to his mother about them.

[102]

A.C. was six years old
    when he testified after promising to tell the truth. His evidence consisted of
    his s. 715.1 statement, which he eventually adopted after having initially
    failed to recall having made it. His examination-in-chief is contained in about
    two pages of transcript.

[103]

Trial counsel did not
    cross-examine A.C., and thus did not ask him about anything his mother or aunt
    had said to him about the appellant or any of the allegations.

J.C.

[104]

Trial counsel
    cross-examined J.C. about her conversations with the complainants and her
    observations of the rash on R.K.s buttocks and when she had seen it. Counsel
    also cross-examined J.C. about what she told police when interviewed and apparent
    inconsistencies between her evidence at trial and her testimony at the preliminary
    inquiry.

[105]

The appellants principal
    complaint in connection with trial counsels cross-examination of J.C. is that
    she asked questions about a drawing done by R.K. about which J.C. had been
    asked in her examination-in-chief by the Crown. This complaint was not included
    in the appellants affidavit. The questioning occurred as trial counsel queried
    J.C. on her conversations with R.K. about his allegations.

[106]

The trial judge
    characterized J.C.s testimony about the drawing as confusing. It was not listed
    as a factor in the rejection of the appellants evidence.

S.C.

[107]

The appellants principal
    complaints about trial counsels cross-examination of S.C. are that she did not
    question S.C. about her involvement in the assault on the appellant and on the
    likely collusion between S.C. and her sister, N.C., after A.C.s initial
    disclosure of abuse by the appellant. Both of these issues, the appellant says,
    affected S.C.s credibility and the reliability of her evidence.

[108]

In cross-examination,
    trial counsel elicited evidence that S.C.s testimony about R.K.s rash emerged
    for the first time at trial, and that her testimony about the appellants
    conduct in hugging R.K. at the birthday party emerged only at the preliminary
    inquiry and not her initial police interview. She also challenged S.C.s memory
    of her contact with the appellant after A.C.s initial disclosure. During a
    colloquy in closing submissions, the trial judge observed that [S.C.]s not
    the most reliable witness in the world.

[109]

In her evidence, S.C.
    denied any contact with the appellant after the birthday party when trial
    counsel asked her about it in cross-examination.

N.C.

[110]

The appellants
    complaint about trial counsels cross-examination of N.C. is that she did not
    properly explore the extent to which N.C. had spoken with her sister, S.C.,
    about the allegations. The appellant also says counsel failed to use N.C.s
    admission that her memory was affected by post-traumatic stress disorder,
    especially in relation to the issues relevant at trial, to challenge her
    evidence.

[111]

Trial counsel
    challenged N.C.s recollection of various events, including the relationship
    between A.C.s disclosure and R.K.s birthday party.

The Evidence of the Appellants Mother

[112]

Patricia Lahey is the
    appellants mother. She testified as a defence witness at trial. The
    appellants complaints about trial counsels handling of her evidence are
    essentially twofold. Trial counsel did not adequately prepare Ms. Lahey to give
    evidence at trial. And counsel compounded this error by eliciting damaging
    evidence about the nature of the appellants relationship with the complainants
    and inadmissible hearsay and lay opinion evidence.

[113]

Trial counsel
    explained that Ms. Lahey had been in the courtroom throughout the trial. They
    had spoken regularly. Trial counsel discussed the decision to call her as a
    witness with the appellant and he agreed that she should give evidence. Trial
    counsel reviewed the general nature of the questions that she would ask Ms.
    Lahey, but not the specific questions. Ms. Laheys testimony corroborated the
    appellants evidence about the assault after the birthday party, his denials of
    the allegations and his mental state after his fathers death which related to
    his motive for befriending the complainants families.

[114]

Ms. Lahey testified
    that she was concerned about the closeness of the relationship between the
    appellant and the boys and how it would be viewed given his previous
    convictions for sexual offences. The trial judge made it clear that neither the
    appellants criminal record nor the inadmissible evidence assisted in resolving
    the case. The more damaging evidence in connection with the appellants
    credibility was that he lied not only to his mother, but also to his employer
    (who also testified as a defence witness) about never being alone with the
    complainants. This evidence was elicited during cross-examination.

Preparation of the Appellant for Trial

[115]

The appellant
    complains that trial counsel did not adequately prepare him for trial. She did
    not meet with him on a sufficient number of occasions and for a sufficient
    amount of time, review the disclosure with him or prepare him to testify.

[116]

The appellant and
    trial counsel differed significantly on the number of occasions and the
    circumstances in which they met. The appellant said they met six to ten times,
    almost always at the courthouse. The meetings were very brief. He acknowledged
    a vague recollection of the number of the meetings.

[117]

For her part, trial
    counsel docketed 25 meetings with the appellant, with over half of them taking
    place at the jail. Nine were before or during trial. There may have been more.
    The meetings were invariably of at least an hour, although counsel acknowledged
    that the hours she docketed included a portion of her travel time and the
    period required to clear security at the jail.

[118]

The appellant gave
    evidence that trial counsel was reluctant to bring the video statements for him
    to review, although she did so once. Trial counsels recollection was that she
    did not review the videos with the appellant. Some of them, which included the
    police interviews with the adults, were not transcribed. In the four months she
    had to prepare for trial, counsel reviewed the disclosure and the evidence
    adduced at the preliminary inquiry with the appellant, who appeared aware of
    the case he had to meet. The appellant also had a different lawyer previously.

[119]

The appellant and
    trial counsel also differed in their recollections about preparing the
    appellant to testify at trial.

[120]

The appellant claimed
    that he told trial counsel of his decision to testify at the end of the day
    before he began to give his evidence. Trial counsel did not prepare him in any
    way, nor ask for an adjournment so that she could do so.

[121]

The trial record shows
    that the case for the Crown was at or near completion on a Friday. Before
    adjourning proceedings for the weekend, the trial judge confirmed with defence
    counsel that she would be ready to begin the defence on the following Monday.
    Her dockets confirmed that she had two meetings, totalling six hours, with the
    appellant during the intervening weekend.

[122]

Trial counsel said she
    advised the appellant that he could but did not have to testify. She told him
    to tell the truth and not be argumentative. In his affidavit, the appellant
    denied any discussions with trial counsel on giving evidence in his own
    defence. When cross-examined, he admitted that he and trial counsel decided
    together that he would be testifying.

The Centre Island Emails

[123]

R.K. described a
    washroom on Centre Island as a place in which the appellant sexually assaulted
    him. The events occurred at the sink in a wheelchair access washroom beside the
    main washroom. The washroom door could be locked from the inside. J.C.
    confirmed that the appellant took R.K. to the washroom on Centre Island.

[124]

The appellant
    testified that it was virtually impossible for him to have taken R.K. to the
    washroom because there was a strict policy that R.K.s mother, aunt or
    grandmother would always take him to the womens washroom. The appellant also
    denied that this could have occurred while J.C. was waiting in line to buy ice
    cream because there was no ice cream sold on the island.

[125]

About six months after
    the appellant had been convicted, but before completion of the dangerous
    offender proceedings, Ms. Lahey had an email exchange with someone at Centre
    Island ticket sales. She sought information about wheelchair washrooms and the
    sale of frozen treats on the island. The exchange confirms that there is a
    wheelchair accessible washroom with a sink on the island and that frozen treats
    are sold on the island. The information sought about washroom doors related to
    the main door of public washrooms open to everyone, not wheelchair accessible
    facilities. The public washroom doors can only be locked by staff.

[126]

Trial counsel did not
    consider applying to re-open the proceedings after conviction based on this
    evidence. She was unsure about the significance of the email and in any case
    considered that the issue could be raised on appeal.

The Third-Party Records Application

[127]

About a month before
    the scheduled trial date, trial counsel sought and obtained an adjournment so
    that she could bring a third-party records application. She sought Childrens
    Aid Society (CAS) records relating to both complainants and to N.C. On the
    return date of the motion, trial counsel had filed no materials, had served the
    Crown only that day and had failed to issue a subpoena to the recordholder.

[128]

About a week later,
    trial counsel indicated that she wished to amend her original application to
    limit it to the records of only one of the complainants. In another two weeks,
    she sought an expanded group of records. The materials still had not been
    properly filed. A subpoena was never issued. The application failed.

[129]

Trial counsel confirmed
    that this was her first third-party records application. She did not seek
    advice from more experienced counsel.

The Arguments on Appeal

[130]

The appellant
    acknowledges that the onus is on him to establish, on a balance of
    probabilities, the facts on which his claim of ineffective assistance is
    grounded; that trial counsels representation was incompetent; and that the
    incompetent representation resulted in a miscarriage of justice because it
    rendered the trial proceedings unfair or resulted in an unreliable verdict. In
    this case, the appellant says, trial counsels incompetent representation not
    only rendered trial proceedings unfair, but also resulted in an unreliable
    verdict.

[131]

In combination,
    several trial incidents and some related out-of-court deficiencies provide the
    factual backdrop for the claim of incompetent representation. A flawed defence
    theory which assumed the truth of A.C.s account and mounted a minimal challenge
    to the evidence of R.K., and a failure to assiduously pursue any suggestion of
    third-party participation. This precluded presentation of the most obvious
    defence available on the evidence. That defence was that N.C. had
    misinterpreted and overreacted to A.C.s complaint, jumped to an unwarranted
    conclusion and, with her sister, mutually reinforced the idea of sexual abuse
    until they and their children became convinced that it was true.

[132]

In addition, the
    appellant says, trial counsel not only failed to challenge the credibility and
    reliability of the Crowns witnesses, but also elicited testimony from them
    that was damaging to the defence case. She asked R.K. no questions about Centre
    Island, allegedly kicking the appellant in the groin or the alleged birthday
    hug. Then, she elicited evidence about assaults on the outings to the movies
    and bowling. A.C. was not cross-examined, and thus no evidence was adduced
    about any conversations his mother and aunt had with him. Counsel introduced
    damaging testimony from J.C. about R.K.s drawing and made no real inquiry into
    the credibility or reliability of either N.C. or S.C., including, but not
    limited to, questions about their discussions about the allegations with each
    other and the children.

[133]

Further, the appellant
    continues, trial counsel failed to properly prepare Ms. Lahey and himself for
    trial. She also elicited inadmissible evidence from Ms. Lahey about her opinion
    that the appellant was innocent and evidence that threatened to put the
    appellants character in issue. Counsel did not adequately review the
    disclosure with the appellant, met with him an insufficient number of times,
    gave him inadequate advice about testifying, failed to properly prepare him to
    testify and began to adduce evidence about the details of his criminal record
    until stopped from doing so by the trial judge.

[134]

This accumulation of
    omissions, together with the failure to bring a third-party records application
    and to seek re-opening of the proceedings when made aware of the email about
    the facilities at Centre Island, compromised the fairness of the appellants
    trial and the reliability of the verdict rendered at its conclusion.

[135]

As did the appellant,
    the respondent begins with the test we are to apply in our adjudication of the
    claim. The test is stringent. We are to proceed from a strong presumption that
    counsels conduct falls within, not beyond, a wide range of reasonable
    professional judgment. The standard is reasonableness, not perfection.
    Hindsight has no place in the evaluation, which is a function of the
    circumstances of the case. Nor are we to test counsels performance by the fact
    or through the lens of the judges reasons for judgment.

[136]

The respondent says
    that our analysis must begin with a consideration of the issue of prejudice.
    This component requires the appellant to show that had trial counsel conducted
    the case as it is now said she should have done, there is a reasonable
    probability that the verdict rendered would have been different. Or, the
    appellant must show that counsels incompetence deprived him of a fair trial.

[137]

In the respondents
    submission, the appellant has mischaracterized trial counsels approach to the
    case at trial. She did not assume that the allegations had to be true. The
    position advanced at trial was that A.C. may have been sexually assaulted, but
    not by the appellant. R.K. had not been abused but made allegations of abuse
    because of suggestions or pressure from family members. Unlike what is now said
    to be the most obvious defence, the position taken at trial was viable, had
    evidentiary support and accorded with common sense. By contrast, the appellants
    submission that N.C. had misinterpreted A.C.s disclosure, and then, with her
    sister, convinced their children that they had been abused by the appellant is
    at once unhinged from the evidence at trial and at odds with common sense. That
    defence would not have been viable.

[138]

Trial counsel
    developed her theory of the case at trial. She cross-examined N.C. about other
    men, A.C.s use of the descriptive Paul Number Two and apparent inconsistencies
    between N.C.s testimony at the preliminary inquiry and at trial about A.C.s
    initial disclosure to her. She cross-examined R.K.s mother, S.C., about other
    men in her home where the allegations occurred and their appearance, including
    her then boyfriend who was also named Paul. And she elicited evidence from the
    investigating officer, who acknowledged that police had not interviewed any
    other males who were present at the complainants home during the period of the
    allegations.

[139]

The respondent
    counsels a cautious approach in any review of cross-examination strategies. The
    appellant must establish a reasonable probability, not a meagre possibility,
    that a different cross-examination strategy would have resulted in a different
    verdict. The mere fact that different counsel would have chosen a different
    cross-examination strategy, especially with the benefit of hindsight and the
    trial judges reasons, does not mean that what happened at trial was inadequate.

[140]

In her
    cross-examination of R.K., the respondent says, trial counsel focused on the
    principal weakness and main inconsistency in his evidence. At first, R.K.
    denied being abused by the appellant. He provided no details of any abuse when
    interviewed by police. Yet at trial, his account was rich in detail. R.K.
    admitted as much but denied counsels suggestion that his account had been
    influenced by his mother, his aunt or his grandmother.

[141]

The appellants
    complaint that in cross-examining R.K., trial counsel elicited prejudicial
    evidence about R.K.s trips to the movies and bowling with the appellant is
    unavailing. This was not new evidence. The appellant acknowledged these outings
    in his police interview. Both J.C. and S.C. testified to the same effect. The
    cross-examination was in service of a reasonable trial strategy  demonstrating
    the malleability of R.K.s account by adding, for the first time at trial, that
    sexual abuse had taken place at both these venues. That the strategy did not
    ultimately succeed does not render counsels questioning incompetent.

[142]

The respondent
    disputes the appellants contention that trial counsel ought to have
    cross-examined A.C. about what his mother or aunt said about the incidents or
    how often he talked to his mother about them. A.C. was six years old when he
    testified at trial. For all practical purposes, his evidence was his video
    interview admitted under s. 715.1 of the
Criminal Code
, a video which he
    made when he was four years old. Initially, A.C. did not even recall making the
    video. His examination-in-chief occupied two pages of transcript. The record
    reveals no basis to suggest that cross-examination of A.C. would have elicited
    evidence favourable to the appellant.

The Governing Principles

[143]

The test for
    establishing ineffective assistance of trial counsel is not in dispute. The
    appellant must establish the factual foundation for the claim, incompetence of
    counsel and miscarriage of justice resulting from such incompetence. With
    respect to the incompetence of counsel element, there is a strong presumption
    that trial counsels conduct fell within the wide range of reasonable professional
    assistance. The onus is on the appellant to rebut this presumption. The
    analysis is conducted without the benefit of hindsight. See
R. v. Ramos
,
    2020 MBCA 111, at paras. 119-20, affd 2021 SCC 15.

The Principles Applied

[144]

I would not give
    effect to this ground of appeal.

The Family Members

[145]

The appellant says
    that trial counsel prejudiced his case by asking questions about a drawing J.C.
    had testified in-chief that R.K. drew.

[146]

This complaint, about
    which there is no mention in the appellants affidavit filed in support of his
    ineffective assistance of counsel allegation, is unavailing. The questioning
    occurred when trial counsel was exploring with J.C. her conversations with R.K.
    about his allegations of sexual abuse. The trial judge characterized the
    exchange as confusing and attached no significance to it in assessing R.K.s
    evidence or in weighing the appellants testimony.

[147]

In respect of S.C.,
    the appellant contends that trial counsel failed to challenge the witness
    credibility and reliability, devoted much of her cross-examination to the
    absence of a doctors name on a medical report, failed to question her about her
    involvement in an assault on the appellant after R.K.s birthday, and omitted
    to probe S.C. about possible collusion with her sister.

[148]

A review of trial
    counsels cross-examination of S.C. does not support this aspect of the claim
    of ineffective assistance.

[149]

Trial counsel pointed
    out that S.C.s evidence about the appellant hugging R.K. at the birthday party
    first emerged in her testimony at trial. She also established the unreliability
    of S.C.s memory about her contact with the appellant after A.C.s disclosure.
    Her lengthy cross-examination of S.C. contained only one page about the absence
    of the doctors name from the medical report. She asked questions about
    collusion among family members and S.C.s contact with the appellant after
    R.K.s birthday party. That the witness remained steadfast in her denials
    affords no evidence of incompetence.

[150]

Nor does the record
    support the assertion of incompetence in the cross-examination of N.C. N.C. had
    made it clear that after A.C.s disclosure, she did not want to discuss the
    allegations with anyone or even hear about them. Trial counsel challenged and
    succeeded in showing that N.C.s memory of the time at which various events
    occurred was unclear.

[151]

Whether considered
    singly or in combination, I am not persuaded that the impugned
    cross-examinations compromised trial fairness or the reliability of the verdict
    the trial judge rendered.

The Evidence of the Appellants Mother

[152]

The appellant says
    that trial counsel did not adequately assess the risk of calling the
    appellants mother, Ms. Lahey, as a defence witness and, having decided to call
    her, failed to adequately prepare her to testify.

[153]

The decision to call
    Ms. Lahey as a witness was made after discussion with the appellant and with
    his agreement. Ms. Lahey confirmed the appellants account about the injuries
    he suffered in the post-birthday altercation with S.C. and A.C.s biological
    father. Similar evidence was given by the appellants employer, whose testimony
    is not said to bear the badge of incompetence. Ms. Lahey confirmed the
    appellants repeated denials of impropriety and provided a benign motive for
    him befriending the complainants families.

[154]

As with almost any
    witness, there were risks associated with the testimony of Ms. Lahey. Her
    warning of the appellant about the dangers of a close relationship with the
    complainants given his prior record of sexual offences against children. But
    the experienced trial judge was keenly aware of the irrelevance of Ms. Laheys
    views and made no use of them, or the appellants prior record, in finding the
    case for the Crown proven beyond a reasonable doubt.

[155]

The more damaging blow
    to the appellants credibility came from evidence that he had lied not only to
    his mother, but also to his employer about never having been alone with the
    complainants. However, this was but one of myriad factors the trial judge cited
    for rejecting the appellants evidence. That a witness may give some evidence
    adverse to the interest of the calling party is a risk with many, if not most,
    witnesses. The decision to call such a witness is a judgment call rather than
    evidence, much less proof, of incompetence.

Preparation of the Appellant for Trial

[156]

The crux of the
    appellants complaint about his dealings with trial counsel has to do with
    preparation for trial. Insufficient meetings with counsel. Inadequate review of
    disclosure. Tepid advice about the decision to testify and meagre preparation
    in advance of his testimony. He also assails counsels elicitation from the
    appellant of the details of his prior criminal convictions.

[157]

The evidence conflicts
    about the number of meetings between trial counsel and the appellant. To the
    extent that the evidence conflicts, I accept the evidence of trial counsel. The
    appellant has a vague recollection of six to ten meetings, each very brief,
    and most of which occurred at the courthouse. By contrast, trial counsel
    docketed 25 meetings, over half of them at the jail where the appellant was
    detained pending trial. Nine of the meetings, perhaps more, were before or
    during the trial. The jail meetings were an hour or more, although a portion of
    the time involved travel and passing through security at the jail.

[158]

Although the appellant
    alleges inadequacy in counsels review of Crown disclosure with him, he does
    not claim unfamiliarity with the disclosure or a deficient understanding of the
    case he had to meet. Trial counsel gave evidence that she reviewed the
    disclosure with him, as well as the transcript of the preliminary inquiry,
    where all witnesses necessary to establish guilt had testified and been
    cross-examined by prior counsel. He also had a contested bail hearing, where
    some of the case against him was previewed.

[159]

In his affidavit, the
    appellant admitted that he told trial counsel of his decision to testify at the
    end of the day before he began to give evidence. Trial counsel, he said, did
    not prepare him in any way, nor did she ask for an adjournment so that she
    could do so.

[160]

The appellants
    recollection of these events is at odds with the trial record and the evidence
    of trial counsel. The transcripts show that the Crowns case was at or near its
    completion on a Friday. Before adjourning court for the weekend, the trial
    judge asked, and trial counsel confirmed, that she would be ready to start the
    defence case the following Monday. Trial counsel gave evidence that she had two
    meetings with the appellant at the jail during the intervening weekend to
    prepare him to testify at trial.

[161]

Further, the appellant
    assails the strength of trial counsels advice that he should testify. This alleged
    deficit in counsels conduct falls on barren ground. The appellant did testify.
    Manifestly, any advice he received was sufficiently forceful to persuade him to
    do so. He does not suggest that he ought not to have testified or that he was misled
    about his options. He says he made the decision himself as it was his to do.

[162]

The single deficiency
    urged as reflecting incompetence in connection with the introduction of the
    appellants testimony relates to his answers to questions about his criminal
    record. Doubtless, counsel should have explained what was permissible and what
    was not, but the responses were harmless. This was a judge-alone trial. The
    trial judge had already heard evidence about the appellants criminal history
    on a pre-trial application to exclude his police interview as evidence. In his
    reasons, the trial judge explained that the appellants dated criminal record played
    no role in his assessment of the appellants credibility.

The Pre- and Post-Trial Applications

[163]

The final aspect of
    the appellants allegation of ineffective assistance focuses on two applications,
    one before trial, the other after verdict. One bungled, the other not made.

[164]

Trial counsel made
    several attempts to obtain third-party records at the outset of trial. The
    records sought varied. But procedural flaws predominated. Lack of timely
    notice. Improper service. No subpoena issued to the recordholders. No supporting
    materials filed.

[165]

Trial counsel had
    never brought such an application in any other case and plainly did not know
    how to go about it. However, the record lacks any evidence that can explain how
    the records sought would have assisted the appellant in his defence. The
    dangerous offender proceedings concluded in 2013, the trial a year earlier, in
    2012. The notice of appeal was filed in 2015. In these circumstances, I am not
    prepared to infer prejudice from the mere fact of procedural ineptitude.
    Despite the amount of time that has passed, there is no evidence that the
    records sought would have assisted the appellant at trial, nor an explanation as
    to how the records would have assisted.

[166]

The other allegation of
    incompetence focuses on events that occurred after the appellant had been
    convicted, but before the dangerous offender proceedings had entered the
    hearing phase.

[167]

At issue here is
    whether trial counsel was incompetent because she failed to apply to re-open
    the defence case after conviction based on the information obtained about
    Centre Island washroom facilities and the availability of frozen treats, as
    described in an email exchange between Ms. Lahey and Centre Island ticket sales.
    The email exchange took place about six months after the trial judge had
    released his reasons for judgment finding the appellant guilty on all six
    counts in the indictment. Trial counsel did not make an application to re-open
    the defence case. When cross-examined about her failure to do so, she appears
    to have considered that the issue could more probably be the subject of an
    appeal.

[168]

For two principal
    reasons, the appellants argument that counsel should have applied to re-open
    the case based on the email exchange fails. The first has to do with the test
    that governs applications to re-open the defence case after verdict. The second
    concerns the nature of the evidence in issue.

[169]

The test for re-opening
    the defence case after findings of guilt have been made and convictions entered
    is more rigorous than the test that applies when the same application is made before
    an adjudication of guilt. This is so because a more exacting standard is
    required to protect the integrity of the criminal trial process, including, but
    not only, the enhanced interest in finality:
R. v. Kowall
(1996), 108
    C.C.C. (3d) 481 (Ont. C.A.), at p. 493, leave to appeal refused, [1996]
    S.C.C.A. No. 487. See also
R. v. M.G.T
., 2017 ONCA 736, 357 C.C.C.
    (3d) 109, at paras. 47-49.

[170]

The criteria to be met
    when fresh evidence is tendered on appeal provide helpful guidance to judges asked
    to permit re-opening of the defence case after verdict. These criteria 
    summarized as admissibility, cogency and due diligence  posed insurmountable
    obstacles to the evidence at issue here. The contents of the exchange, in
    particular the response from ticket sales, was hearsay. It lacked cogency. And
    it could have been discovered with the exercise of due diligence at trial.

[171]

In addition, this
    evidence would not have assisted the appellants case. The evidence was
    somewhat ambiguous, as it consisted of partial and indirect responses to Ms.
    Laheys questions, which were themselves ambiguous. The appellant proposes an
    interpretation of the evidence which would be exculpatory. Nonetheless, the evidence
    confirmed the existence of a wheelchair accessible washroom equipped with a
    sink. It also substantiated the availability of ice cream and related frozen
    products on the island. Thus, the evidence contradicted the two principal
    reasons the appellant claimed that the incident on Centre Island could not have
    happened as R.K. alleged.

Disposition of the Appeal from Conviction

[172]

In the result, I would
    dismiss the appeal from conviction.

The Appeal from the Dangerous Offender Finding

[173]

In the alternative, the
    appellant challenges the finding that he is a dangerous offender, as well as
    the indeterminate sentence imposed. Each ground of appeal he advances relates
    to the trial judges conclusion that the Crown had proven each of the elements
    essential to a finding of dangerous offender status beyond a reasonable doubt.

[174]

Some additional
    background about the evidence adduced at the hearing will help to place the
    submissions of errors in their proper setting.

The Essential Background

[175]

The Crown relied on
    ss. 753(1)(a)(i) and (b) as the basis for the dangerous offender finding. The
    predicate offences on which the application was grounded were those proven at
    trial. In addition, the Crown adduced evidence of the appellants early
    correctional history; opinion testimony from two psychiatrists; evidence from a
    federal parole officer experienced with high-risk offenders on various forms of
    conditional release; and the victim impact statement from N.C. on behalf of the
    complainants and their families.

The Appellants Background

[176]

The appellant is the
    middle child. His family was dysfunctional. He was 33 years old at the time of
    the offences and 36 years old at sentencing. His mother, Ms. Lahey, moved to
    Nova Scotia in 1998. The appellant was then living with his girlfriend. Later,
    the relationship ended. The appellants father died unexpectedly in 2009. His
    death had a profound effect on the appellant.

[177]

When the appellant was
    14, the CAS became involved with his dysfunctional family. He incurred several
    convictions for offences committed in 1992 and 1993, when he was 15 or 16 years
    old. Except for the first offence in 1992, all the offences were committed with
    an older co-accused, who had abused the appellant. The circumstances of these
    offences were not established in court records. The Crown relied on police
    synopses to establish the conduct that underpinned the convictions and conceded
    that some of the records were not particularly reliable. The trial judge was
    satisfied that the synopses were reliable as to the dates of the offences, the
    ages of the parties and the general nature of what happened.

[178]

In 1992, when the
    appellant was 15 or 16 years old, he had anal intercourse with a 13-year-old
    boy whom he had known for some time. He admitted having done so when testifying
    at his bail hearing on the predicate offences.

[179]

When the appellant was
    16, he and his 22-year-old co-accused enticed a young boy into a room where
    there was a mattress on the floor. When the co-accused began to unzip the young
    boys fly, the boy became scared. The incident ended.

[180]

In 1993, when he was
    16, the appellant and the same co-accused tried to persuade an 11-year-old boy
    to come to a room where they would perform various sexual acts. The boy
    refused. Nothing else happened.

[181]

The final incident
    also occurred when the appellant was 16. He and the same co-accused enticed an
    11-year-old boy into a car at a swimming pool. They drove to the appellants
    apartment building. The co-accused had oral sex with the boy. The appellant
    watched. At his bail hearing on the predicate offences, the appellant admitted
    being in the car with the co-accused and the boy, and he admitted entering a
    room with a mattress on the floor (in his apartment building). He claimed that
    he left before any sexual acts occurred.

[182]

The first three
    offences resulted in convictions for invitation to sexual touching, the last, a
    conviction for abduction of a child under 14. The offences occurred 16 years before
    the predicate offences and were resolved on pleas of guilty. No convictions were
    entered in the intervening years.

The Expert Evidence

[183]

The Crown appointed Dr.
    Derek Pallandi, a forensic psychiatrist, to conduct an assessment of the
    appellant under s. 752.1 of the
Criminal Code
. One of the grounds of
    appeal challenges the trial judges reliance on Dr. Pallandis report in
    concluding that the appellant is a dangerous offender.

[184]

Dr. Pallandi diagnosed
    the appellant as a pedophile with several psychopathic traits which were not
    present to the degree necessary for a formal diagnosis of psychopathy.
    Pedophilia is a lifelong condition which is not curable. Available treatments
    include behavioural and pharmacological therapy, which may provide some
    controls. However, where, as here, an offender denies not only the offences,
    but also an underlying sexual preference for children, there are serious
    obstacles to treatment. And pharmacological intervention requires an offenders
    consent, which is usually not, and in this case is not, forthcoming. The same
    denials pose an additional risk factor.

[185]

Dr. Edward Sowa is
    also a forensic psychiatrist. He counselled the appellant during the custodial
    sentence the appellant received in Youth Court for the 1993 convictions. Dr.
    Sowa made minimal progress with the appellant, whom he described as boastful,
    manipulative and prone to exaggeration. The appellant had no interest in
    pharmacotherapy.

[186]

Both Dr. Pallandi and
    Dr. Sowa considered the appellant at high risk to re-offend. From age 18, the
    appellant has had an entrenched sexual preference for young children.

The Trial Judges Findings

[187]

The trial judge was
    satisfied beyond a reasonable doubt that the Crown had established that the
    appellant was a dangerous offender under ss. 753(1)(a)(i) and (b) of the
Criminal
    Code
. He also concluded that no sentence less than an indeterminate term
    of imprisonment would adequately protect the public. The evidence did not show
    that there was a reasonable expectation that a lesser measure would adequately
    protect the public.

The Grounds of Appeal

[188]

The appellant alleges
    three errors in the trial judges analysis leading to his conclusion that the
    appellant is a dangerous offender. The alleged errors are in:

i.

improperly
    evaluating and unduly relying on the opinion evidence of the psychiatrists;

ii.

finding a
    pattern of repetitive behaviour; and

iii.

misapprehending the
    evidence of Ms. Lahey.

Ground #1: Undue Reliance on Evidence of Psychiatric Opinion

[189]

The appellants first
    challenge is to the trial judges evaluation of and reliance on the expert
    opinion evidence given by the two forensic psychiatrists, Dr. Pallandi and Dr.
    Sowa. Some additional background will help to elucidate the nature of the
    complaint.

The Essential Background

[190]

Included in the
    materials Dr. Pallandi reviewed in reaching his conclusion were police synopses
    of the circumstances underlying the appellants previous convictions; records
    of CAS involvement with the appellants family and of the appellants treatment
    as a youthful sexual offender; and information about the gross number of
    charges levied against the appellant, including those that did not result in
    convictions.

[191]

In addition, both
    forensic psychiatrists assumed that in the 16 years between his Youth Court convictions
    and those of the predicate offences, because of the nature of pedophilia and
    the appellants committed sexual preferences, he likely committed other similar
    offences.

The Reasons of the Trial Judge

[192]

In his lengthy written
    reasons, the trial judge:

i.

rejected
    Dr. Pallandis assumption that the appellant committed further sexual offences in
    the gap between the youth and adult convictions;

ii.

assigned
    no weight to Dr. Pallandis speculation about a number of unverified victims
    based on information contained in CAS records; and

iii.

criticized Dr.
    Pallandi for failing to consider any positive aspects in the appellants
    history.

[193]

In a similar way, the
    trial judge did not rely on the impermissible speculation of Dr. Sowa that
    because of the appellants deeply ingrained sexual preferences for young
    children, it was hard for him (Dr. Sowa) to accept that, in the 16 years
    between convictions, the appellant did not commit other sexual offences.

[194]

The trial judge
    expressed his conclusions on the likelihood of future re-offending in these
    terms:

Taking all the above analysis and findings into consideration,
    I am satisfied that the Crown has proved the future conduct element of s.
    753(1)(a) and (b) beyond reasonable doubt, that is, the likelihood of 
    inflicting severe psychological damage  through failure in the future to
    restrain his  behaviour and the likelihood of causing injury, pain or other
    evil  through failure in the future to control his  sexual impulses. In
    particular, I rely on the following proved facts:

·

the assessments by Dr. Sowa and the J.D. Griffin Centre
    therapists in 1994, concerning Gibsons entrenched sexual preferences at age
    eighteen, his ability to minimize, rationalize and engage in cognitive
    distortions about his offending behaviour, his poor prospects for treatment,
    and his high risk to re-offend;

·

the confirmation of these assessments in 2009, when he
    deliberately acted out in the same manner and committed the predicate offences;

·

the rational planning and premeditation involved in Gibsons
    gaining access to and grooming of the two young victims, deliberately creating
    opportunities for himself to re-offend;

·

the cognitive distortions that he again utilized, while
    committing these offences and when rationalizing them afterwards;

·

his inability to restrain his behaviour, even when warned by his
    mother, who is the one person in the world who is closest to him and who he
    undoubtedly cares for;

·

the ongoing repetition of the predicate offences, in relation to
    two separate victims, indicating that these were not isolated or situational
    offences;

·

the diagnosis of pedophilia, the fact that it is a life-long
    condition with no cure, and the limited treatments available to ameliorate its
    risks;

·

the complete refusal by Gibson to acknowledge his sexual
    preference for children, and to engage in treatment, and the resulting
    exacerbation of his risk of re-offending.

In all these circumstances, I am satisfied that present
    existence of the likely or probable risk of re-offending, in the s. 753 sense
    and as explained in
Lyons
and
Knight
, has been proved beyond
    reasonable doubt. Gibson, therefore, meets the test for a dangerous offender
    designation. The requisite threat to the life, safety or physical or mental
    well being of other persons has been proved, pursuant to s. 753(1)(a), and the
    essential elements of the s. 753(1)(b) test have also been proved.

The Arguments on Appeal

[195]

The appellant contends
    that neither Dr. Pallandi nor Dr. Sowa approached their assessments in a
    scientific and unbiased way. Their risk assessments were based in part on an
    assumption of undetected and uncharged offences over the intervening years.
    Although the trial judge challenged both experts for their reliance on
    unsubstantiated offences, he nonetheless accepted their evidence in reaching
    his conclusion about the likelihood of future recidivism. This was critical to
    his determination that the appellant was a dangerous offender. Reliance on the
    opinions of these experts in these circumstances, conclusions based in part on
outdated science on the link between denial and the risk of recidivism, was
    unreasonable and warrants a new hearing.

[196]

The respondent
    characterizes the trial judges approach to the impugned evidence as at once
    fair and cautious. He did not rely on any aspect of the opinions founded on
    hearsay or impermissible speculation. It is commonplace, the respondent says,
    for experts to rely on second-hand information. To the extent they do so, this
    affects the weight a trier of fact may assign to their testimony. Their
    opinions are not inadmissible as a result. Their ultimate reliability is for
    the trier of fact to decide, and that determination is entitled to deference on
    appeal.

[197]

Here, the respondent
    continues, the expert evidence was relevant to establish the appellants
    diagnosis, to assess the risk of future recidivism and to determine whether
    some form of treatment could control that risk in the community. The trial
    judge was required to and did ensure that the opinions he relied on were not
    contaminated by reliance on unproven allegations. He used the psychiatric
    evidence within permissible limits in a critical, rigorous and fair-minded way.
    His conclusion is entitled to deference.

[198]

The respondent argues
    that in determining whether there was a likelihood of future re-offending,
    the appellants insight into his offending cycle and his commitment and
    amenability to required treatment are critical factors. Denials of guilt and
    failures to accept responsibility are relevant to treatability and future risk.
    The trial judge properly considered them here.

[199]

The appellants
    argument that the court erred by relying on outdated science, the respondent
    submits, should be rejected. This argument, which is based solely on an
    academic article, is raised for the first time in this court. The article was
    not put to either expert at sentencing. Nor was it made an exhibit at trial. It
    should have been, but was not, the subject of a fresh evidence application in
    this court. In its current form, it is of no value in our decision on this
    appeal.

The Governing Principles

[200]

The principles
    governing the admissibility and use of expert opinion evidence are well known
    and need not be restated here. Some brief points will suffice.

[201]

Expert opinion
    evidence which otherwise qualifies for reception is not excluded simply because
    it is based in part on second-hand information:
R. v. Lavallee
, [1990]
    1 S.C.R. 852, at p. 893.

[202]

The second-hand
    evidence is admissible to show the information on which the opinion is based. But
    this evidence is not proof of the underlying facts on which the opinion is
    based:
Lavallee
, at p. 893.

[203]

As long as there is
    some admissible evidence to establish the foundation for the experts opinion,
    the experts evidence remains available for consideration by the trier of fact.
    However, the more the expert relies on facts that are not otherwise established
    in the evidence, the less weight the trier of fact may attach to the expert
    opinion:
Lavallee
, at pp. 893, 896. See also
R. v. Wilband
,
    [1967] S.C.R. 14, at p. 21.

[204]

In addition to these
    basic principles, specific mention should be made of the relevance of denials
    of offending conduct, lack of insight, and treatability in dangerous offender
    proceedings.

[205]

The amenability of a
    prospective dangerous offender to treatment and the prospects for success of
    treatment are factors worthy of consideration on the issue of future control of
    the risk of recidivism:
R. v. Little
, 2007 ONCA 548, 225 C.C.C. (3d)
    20, at para. 40, leave to appeal refused, [2008] S.C.C.A. No. 39, citing
R.
    v. Johnson
, 2003 SCC 46, [2003] 2 S.C.R. 357, at paras. 33-36.

[206]

Evidence of the
    offenders future treatment prospects is relevant at the designation stage of
    the dangerous offender analysis. In other words, this evidence is relevant to
    the question of whether an offender should be designated a dangerous offender:
R.
    v. Boutilier
, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 42.

[207]

Although courts must
    be chary of using a perceived lack of remorse as evidence of future
    dangerousness, the failure of an offender to accept responsibility for their
    conduct may be a factor where treatment may be necessary to control future
    dangerousness:
R. v. Levert
(2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at
    para. 40. See also
Little
, at paras. 43-44.

[208]

A final point concerns
    the admissibility of fresh evidence on an appeal from a decision in dangerous
    offender proceedings under Part XXIV of the
Criminal Code
. Simply put,
    fresh evidence may be received in these appeals, provided it meets the
Palmer
criteria of admissibility, cogency, and due diligence:
R. v. Sipos
,
    2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 28-29, 42-44;
M.G.T
., at
    para. 49.

The Principles Applied

[209]

A combination of
    factors persuades me that this ground of appeal should be rejected.

[210]

The first has to do
    with the nature of the ground itself.

[211]

The appellant does not
    challenge the admissibility of the expert opinion evidence. The submission is
    that the trial judge erred in relying on this evidence in concluding that the
    appellant was a dangerous offender. Pared to its core, the submission is that
    the trial judge erred in the weight he assigned to this evidence. But the
    assessment of the weight to assign to individual items of evidence and to the
    evidence as a whole falls squarely within the exclusive domain of the trial
    judge as the trier of fact. The trial judges conclusions on these issues are
    entitled to deference in this court, absent a misapprehension of evidence, the
    application of an erroneous legal principle, or a palpable and overriding
    error.

[212]

In this case, the
    trial judge was keenly aware of the limitations inherent in the expert opinion
    evidence, principally hearsay and speculation about further offences. Nothing
    said or left unsaid in his reasons can support a conclusion of error in his
    assessment of the probative value of this evidence.

[213]

Second, the trial
    judges reliance on evidence of the appellants denials of the offending
    conduct and his resistance to treatment were relevant factors for the trial
    judge to consider on the issue of treatability, and hence properly taken into
    account at both the designation and disposition phases of the proceedings.

[214]

The appellants
    submission that the expert evidence was flawed because it was based on
    outdated science is unavailing. Its source is an academic article that was
    not put to either forensic psychiatrist in the sentencing proceedings. In the
    absence of a successful application to introduce fresh evidence on appeal, it is,
    in no sense, evidence in these proceedings. Further, tendered here on an
    application to introduce fresh evidence, it could not satisfy the admissibility
    requirement, and it was clearly available by the exercise of due diligence.
    Finally, even if this evidence were admitted, the lack of context provided for
    the academic article prevents this court from assessing its significance in the
    academic discourse. This court is not in a position to assess the articles
    potential significance to the law on the link between denial and the risk of
    recidivism.

[215]

This ground of appeal
    fails.

Ground #2: The Pattern Requirement

[216]

The appellant
    challenges the trial judges finding that the evidence established the pattern
    of behaviour required for designating the appellant as a dangerous offender
    under ss. 753(1)(a)(i) and (b) of the
Criminal Code
. The nature of the
    argument advanced does not require further reference to the evidence adduced.
    An excerpt from the trial judges reasons affords sufficient background for the
    discussion that follows.

The Reasons of the Trial Judge

[217]

The trial judges
    conclusion on this issue appears in the following passage in his written
    reasons:

Gibson has obviously committed the necessary predicate offence
    under both statutory routes as he has been convicted of sexual assault.
    Furthermore, there is a common sense inference that, when he committed the
    numerous sexual assaults on R.K. and A.C., Gibson showed a failure to restrain
    his  behaviour under the s. 753(1)(a) route, as well as a failure to control
    his  sexual impulses under the s. 753(1)(b) route. See:
R. v. Sullivan
(1987), 37 C.C.C. (3d) 143 at paras. 21 and 31-3 (Ont. C.A.). Ms. Choi submits
    that the requisite pattern has not been proved, because these predicate
    offences are Gibsons first adult convictions and there is a sixteen year gap
    since his 1993 Youth Court convictions. However, the present offences were
    strikingly similar. Furthermore, they involved two separate victims and ongoing
    periods of gaining access and similar grooming, followed by an ongoing series
    of similar assaults on both victims. The course of conduct revealed by these
    adult offences alone, leaving aside the 1993 Youth Court convictions for now,
    shows a present existing pattern of conduct in the above two statutory
    senses.

The Arguments on Appeal

[218]

The appellant says
    that the analysis required under both ss. 753(1)(a)(i) and (b) includes proof
    of a pattern of conduct by the offender. Here, the trial judge found the required
    pattern exclusively based on the predicate offences. This was an unreasonable
    finding.

[219]

In this case, the
    appellant contends, both complainants were assaulted in the same context, in the
    same places and in the same manner. Both convictions were treated as one
    transaction even though the conduct alleged extended over a period of three to
    four months.

[220]

Further, the appellant
    continues, the appellants dated Youth Court convictions were incapable of
    establishing a pattern when compared to the convictions for the predicate offences.
    The youth convictions involved very different circumstances, including the
    involvement of an older and dominating co-accused who abused the appellant. The
    circumstances of these offences are unclear in large measure because of the unreliability
    of the records offered in proof.

[221]

The respondent joins
    issue with the appellant. The trial judge was right to find the necessary
    patterns established based on the predicate offences. The evidence revealed
    repeated assaults on two complainants over the same extended period of time. The
    assaults occurred at different times. None involved both boys at the same time.
    Reliance on the single transaction cases assessing the propriety of alleging
    several incidents as a single count in an indictment is misplaced.

[222]

What is important for
    the purpose of establishing a pattern, the respondent says, are similarities
    in the conduct, not the number of offences or convictions. Here, there were
    striking similarities in the offences sufficient to establish the required
    pattern. Two convictions of strikingly similar predicate offences can sustain a
    finding of the requisite pattern.

The Governing Principles

[223]

It is uncontroversial
    that two incidents may constitute a pattern, provided they disclose a
    sufficient degree of similarity:
R. v. Hogg
, 2011 ONCA 840, 287 O.A.C.
    82, at paras. 40, 43;
R. v. Byers
, 2017 ONCA 639, at paras. 20-23.

[224]

The pattern
    requirement in ss. 753(1)(a)(i) and (b) is not based exclusively on the number
    of offences. It is also rooted in the elements of similarity in the offenders
    behaviour:
R. v. Langevin
(1984), 11 C.C.C. (3d) 336 (Ont. C.A.), at
    pp. 348-49. See also
R. v. Knife
, 2015 SKCA 82, 460 Sask. R. 287, at
    para. 67, leave to appeal refused, [2015] S.C.C.A. No. 382.

[225]

Section 581(1) of the
Criminal
    Code
enacts a rule of criminal pleading. As a general rule, each count in
    an indictment must refer to a single transaction. The term transaction is not
    synonymous with incident, occurrence or event. A single transaction may
    include separate acts that are successive and cumulative and which comprise a
    continuous series of acts forming one transaction:
R. v. Hulan
,
[1970] 1 C.C.C. 36 (Ont. C.A.), at p.
    45;
R. v. Selles
(1997), 116 C.C.C. (3d) 435 (Ont. C.A.), at p. 444.

The Principles Applied

[226]

I would not accede to
    this ground of appeal.

[227]

The trial judge put to
    one side the appellants earlier offences, which resulted in convictions in Youth
    Court and a sentence of nine months in open custody. He found the necessary
    pattern established based on the predicate offences. Those offences involved
    two complainants to whom the appellant had ongoing access for several months.
    They involved grooming, followed by strikingly similar offences, including anal
    intercourse.

[228]

The statutory
    requirements demand proof of a pattern of behaviour, not a pattern of offences
    or convictions. In its ordinary, everyday sense, a pattern refers to an
    arrangement or order discernible in, among other things, objects, actions or
    ideas. As used in s. 753(1), a pattern refers to actions, not thoughts. The
    required pattern is based not solely on the number of offences, but also on the
    elements of similarity in the offenders behaviour. This is what the trial
    judge found based on evidence that provided a full measure of support for the
    finding.

[229]

The appellants reliance on the authorities interpreting the
    single transaction requirement in s. 581(1) of the
Criminal Code
is
    misplaced. Those authorities are concerned with the sufficiency of a criminal
    pleading, not with whether a pattern emerges from an offenders behaviour over
    time such that it satisfies an essential element at the designation stage of
    dangerous offender proceedings.

[230]

No serious issue is
    taken with the principle that two strikingly similar incidents, or series of
    incidents, can sustain a finding of a pattern of behaviour for the purposes of
    s. 753(1)(a), or that a single incident can meet the requirements of s. 753(1)(b):
Boutilier
, at para.
    102,
per
Karakatsanis
    J. (dissenting in part, but not on this point);
Langevin
, at p. 348.

[231]

Finally, even if the
    behaviour involved in the predicate offences cannot be the exclusive source to
    furnish the pattern requirement in s. 753(1)(a) because of the reference to of
    which the offence for which he or she has been convicted forms a part, the
    inclusive language in s. 753(1)(b) makes it clear that the behaviour revealed
    in the predicate offences can sustain the burden. The trial judge found the
    appellants behaviour also met the requirements of s. 753(1)(b).

[232]

This ground of appeal
    fails.

Ground #3: Misapprehension of Evidence of the Appellants Mother

[233]

The final ground of
    appeal duplicates a complaint made on the appeal from conviction  a
    misapprehension of the evidence of the appellants mother, Ms. Lahey.

[234]

The evidence in
    controversy has been summarized earlier and need not be repeated. Likewise with
    the principles that control our decision when misapprehension of evidence is
    urged as a ground of appeal.

[235]

A brief reference to
    the arguments advanced in this court will provide the background essential to
    understanding the alleged error.

The Arguments on Appeal

[236]

The appellant reminds
    us that Ms. Lahey testified that she was concerned about the nature of the
    appellants involvement with the complainants families. Her concern was not
    that the appellant was abusing the boys, but rather how the nature of his
    contact with them might be construed because of his prior offending history. As
    a result, Ms. Lahey told her son to back off in this relationship. The
    appellant rejected her advice.

[237]

The appellant says the
    trial judge misapprehended this evidence by improperly using it to shore up his
    finding of future risk of recidivism. And he also mischaracterized her concern
    as related to actual conduct, rather than outward appearances, as she
    testified.

[238]

The respondent rejects
    any suggestion that the trial judge misapprehended this evidence. He properly
    described its substance and made no error in its use.

[239]

The trial judge was
    not concerned about the reasons Ms. Lahey gave for warning the appellant about
    the nature of the relationship with the complainants and their families. What
    the trial judge saw as significant was that, despite the warning, the appellant
    lacked sufficient control over his sexual urges, so that he re-offended. This
    evidence was relevant to future dangerousness since it tended to show that a
    type of behavioural restraint, moral suasion, had no effect as behavioural
    control.

[240]

In any case, the
    respondent continues, reliance on this evidence was not material to the finding
    of future dangerousness. That finding was fully supported by the appellants
    diagnosis as a pedophile, the actuarial and clinical assessments about the
    risks, and his offending history.

The Governing Principles

[241]

The principles that
    govern our determination of alleged misapprehensions of evidence have been
    canvassed in paragraphs 56-60. There is no need to repeat them here.

The Principles Applied

[242]

I would reject this
    ground of appeal.

[243]

After concluding that
    the Crown had established beyond a reasonable doubt that the appellant had been
    convicted of a serious personal injury offence and had engaged in the pattern
    of behaviour required under s. 753(1)(a)(i) and the conduct required under s.
    753(1)(b), the trial judge turned to the future conduct requirement.

[244]

The trial judge
    recognized that the future conduct was all about the likelihood and nature of
    recidivism. The expert evidence established the significant risk of sexual
    offence recidivism of the required gravity. The experts diagnosed the appellant
    as a pedophile, a lifelong condition with no known cure. The limited treatments
    to ameliorate its recidivistic risks do not assist the appellants case, either
    because he rejects them outright (pharmacological intervention) or because his
    denials pose insurmountable barriers to even modest success (behavioural therapy).

[245]

The brief reference to
    the appellants rejection of his mothers warning in the context of the efficacy
    of moral suasion as a behavioural restraint was neither misplaced nor material
    to the trial judges conclusion on the issue. Its removal from the analysis
    would not leave the ultimate finding on shaky ground.

Disposition of the Appeal from the Dangerous Offender Finding

[246]

In the result, I would
    dismiss the appeal from the dangerous offender finding, as well as the
    indeterminate sentence imposed.

Disposition

[247]

For these reasons, I
    would dismiss the appeal in its entirety.

Released: July 23, 2021 JMF

David Watt J.A

I agree. Fairburn A.C.J.O.

I agree. Grant Huscroft J.A.


