



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. G.M.C., 2022 ONCA 2

DATE: 20220107

DOCKET: C66972

Strathy C.J.O., Hourigan and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.M.C.

Appellant

Scott Hutchison and Carly Peddle, for
    the appellant

Sunil Mathai, for the respondent

Heard: November 23, 2021

On appeal from the conviction entered on
    January 31, 2019 by Justice Gregory A. Pockele of the Ontario Court of Justice.

Strathy C.J.O.:



I.

BACKGROUND

[1]

After a 12-day trial in the Ontario Court of
    Justice, the appellant was convicted of three counts of assault contrary to s.
    266 of the
Criminal Code
, R.S.C., 1985, c. C-46, one count of assault
    with a weapon contrary to s. 267(a), one count of failure to comply with an
    undertaking contrary to s. 145(5.1), and one count of failure to comply with a
    recognizance contrary to s. 145(3). He pled guilty to one count of failure to
    comply with a court order. He was acquitted of sexual assault, criminal
    harassment, three additional counts of assault, and one additional count of
    breaching a recognizance.

[2]

The appellant was a police officer with the
    Waterloo Regional Police and the complainant had been a legal assistant for a
    criminal defence lawyer. They began a romantic relationship in 2011. Shortly
    thereafter, the complainant moved into the appellants home, where they lived
    with C., the appellants son from a previous relationship. The appellant and
    the complainant subsequently purchased their own home and had a child of their
    own, J., born in April 2015.

[3]

The complainant alleged that the appellant
    assaulted her seven times between 2013 and 2015 and that he sexually assaulted
    her in 2014. The complainant did not report her allegations to police until
    October 2016. By then, the parties had separated, but were locked in
    acrimonious family law proceedings relating to custody of and access to their
    son. The appellant had been subject to a family court order prohibiting him
    from communicating with the complainant.

[4]

The Crown theory was that the appellant was
    extremely jealous, had a quick and occasionally violent temper, and had vented
    his rage on the complainant.

[5]

The defence theory was that the complainant had
    a motive to fabricate in relation to the ongoing legal dispute concerning J.,
    that she had friends in various police agencies, and that she had manipulated the
    police to achieve her objectives.

[6]

As the trial judge noted, the credibility and
    reliability of the complainant and the appellant was a central issue at trial.


II.

THE OFFENCES AND THE TRIAL JUDGES REASONS

[7]

The following brief overview of the offences for
    which the appellant was convicted will provide context for the analysis that
    follows. Additional details will be added as necessary for the analysis.

(1)

Count 1  May 25, 2013  The 911 call

[8]

The complainant alleged that the appellant
    assaulted her when she returned home one evening after meeting her sister,
    instead of having dinner at home. Upon her return, the appellant allegedly
    called the complainant demeaning names and questioned her about her whereabouts
    that evening. When the complainant allegedly removed her engagement ring, the
    appellant threw it at her and told her to pack her belongings and leave the
    house. She testified that, when she entered the basement to retrieve one of her
    two cats, the appellant pushed her into the washing machine, causing injuries
    to her chest, head, and knee. The complainant said she then went to retrieve
    her car keys, at which point the appellant pushed her again, causing her hip to
    hit the kitchen counter. The appellant then made an unsuccessful attempt to
    push her down the stairs as she went to retrieve the cat.

[9]

The complainant retrieved the nearby phone, ran
    upstairs, and called 911, but the appellant took the phone from her and hung
    up. The complainant ran back downstairs, and the appellant threw what the
    complainant thought was a bin of clothing at her. The dispatcher called back
    multiple times and eventually got the complainant on the line.

[10]

The complainant did not mention an assault to the 911 dispatcher
    during the call. However, she told the dispatcher that she was trying to leave
    the house, and the appellant was not letting her take her cats. She was
    overheard telling the appellant not to be mad at her. The police attended the house
    and helped the complainant leave. The complainant testified that she told her
    brother and sister about the assault the evening it transpired, her friend and
    colleague Ms. D. on the following Monday, and a doctor several months later.
    Ms. D. testified that she observed bruising on the complainant sometime in the
    spring of 2013.

[11]

The appellant acknowledged that he had an argument with the
    complainant, but he denied shoving or pushing her. He recalled trying to keep
    the cat in the basement, but denied that the complainant went downstairs near
    the washer and dryer to retrieve it.

[12]

With respect to this count, the trial judge recognized that the
    complainants evidence had been shaped to some degree, but concluded that
    there was no material inconsistency between the complainants testimony that
    she had been assaulted and the 911 call in which she made no mention of
    assault.

(2)

Counts 2 and 3  October 6, 2013  Common assault and assault with a
    weapon

[13]

The appellant and the complainant had an argument after the appellant
    received a message from a female colleague. The complainant wanted to end her
    relationship with the appellant. The complainant testified that the appellant
    threw a bin of clothing at her while she was descending the stairs, hitting her
    in the back of her head and causing her to fall to the floor. She testified
    that, when she tried to retrieve a phone to call the police, the appellant
    choked her and said, I could fucking kill you. She then ran out of the house
    and drove away. The complainant testified that after the assault she had
    trouble breathing and swallowing, her neck was sore and bruised, and she
    concealed the bruising with makeup and clothing. A doctors report stated that
    there was no obvious bruising on the complainants neck, but that she was
    wearing makeup over the area. Ms. D. recalled seeing bruising on the
    complainants neck in the fall of 2013 and observed that she was having
    difficulty speaking.

[14]

The appellant testified that he pushed the complainant in response
    to her hitting him. He also testified that he said I could fucking kill you
    because he was angry that she had hit him. The appellant denied throwing a bin
    at her or choking her. He acknowledged that the complainant had complained of
    soreness in her neck, which he attributed to the push.

[15]

The trial judge found that this was one of the stronger cases the
    Crown advanced and accepted the evidence of the complainant and the evidence
    of Ms. D., who observed the bruising and the symptoms of a sore neck. He also
    accepted evidence of the complainant having attended a doctors office as
    rebutting the allegation of recent fabrication. He rejected the appellants
    evidence as incredible and as insufficient to raise a reasonable doubt. He also
    found corroborative evidence in emails sent by the appellant after the
    incident, in which he expressed responsibility and remorse.

(3)

Count 7  November 2014  Assault (Kneeling)

[16]

The complainant testified that the appellant assaulted her after she
    refused to accompany him on a visit to his friend. She said that he pushed her
    onto the bed and put his knees on either side of her, pinning her forearms with
    his knees. The complainant said that she freed herself by striking his genitals
    and then ran to the basement, where she locked herself in the bathroom and attempted
    to call a friend, Ms. W. The complainant texted photos of bruises on her arm to
    Ms. W. and also told Ms. D. about the incident.

[17]

The appellant admitted he had an argument with the complainant but
    denied assaulting her.

[18]

The trial judge convicted the appellant on this count, accepting the
    evidence of the complainant and the two independent witnesses, whose evidence
    refuted recent fabrication and provided some corroboration of the complainants
    allegations and injuries. He found that the appellants evidence did not
    undermine the credibility of the prosecution witnesses and did not raise a
    reasonable doubt.

(4)

Compliance Charges

[19]

In the course of an access visit, the appellant delivered a diaper
    bag to the complainant, containing a communications book and various cards,
    documents, and pictures. By doing so, it was alleged, the appellant
    communicated with the complainant contrary to the family court order. It was
    also alleged that the appellant sent the complainant an e-mail in breach of his
    recognizance.

[20]

In finding the appellant guilty of breaching an undertaking, the
    trial judge found that the appellants own evidence established that he had
    communicated with the complainant. In finding the appellant guilty of breaching
    his recognizance, the trial judge relied on the appellants guilty plea for
    another offence, in which he conceded that his e-mail communications with the
    complainant exceeded the scope of the family court order.


III.

ISSUES

[21]

The appellant raises three grounds of appeal:

1.

Judicial notice: whether the trial judge took
    judicial notice of matters that fall within memory science, relying on his
    own understanding of how memories operate and, if so, whether he made improper
    use of memory science to support his findings of fact.

2.

Uneven scrutiny of the evidence: whether the
    trial judge applied uneven scrutiny to the Crown and defence evidence by (a)
    forgiving inconsistencies in the Crowns case; (b) making improper use of the
    appellants demeanour and imposing a higher standard on the appellant because
    he was a police officer; and (c) relying on evidence of the appellants
    discreditable conduct to discredit him and infer guilt.

3.

Reasonable apprehension of bias: whether
    statements and interventions made by the trial judge compromised the appearance
    of trial fairness and gave rise to a reasonable apprehension of bias.

[22]

The appellant submits that all three errors impacted the trial
    judges findings on the central issue of credibility and that a new trial is
    required.


IV.

ANALYSIS

(1)

First Issue: Judicial Notice

[23]

Counsel for the appellant argued that the trial judges commentary
    on memory went beyond the usual knowledge that judges apply as lay persons.
    They maintained that the trial judges discussions of how memories are formed,
    short- and long-term memory, and the capacity to recall memories all suggested
    he was applying memory science theory. Counsel submitted that if the trial
    judge was going to rely on this theory, he should have informed the parties and
    permitted them to make submissions on it.

[24]

At the outset of his lengthy reasons for judgment, the trial judge
    made some general observations about the most basic and important principles
    in our criminal law, including the presumption of innocence, the burden of
    proof on the Crown, the need for proof beyond a reasonable doubt, and the
    principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742. He then discussed
    some of the principles applicable to the weighing and assessment of evidence
    and the means of testing the credibility and reliability of witnesses. He
    concluded:

In addition to these principles courts often
    refer to the [appellate] decisions, [
R. v. White
, [1947] S.C.R. 268]
    and [
R. v. Colbert
, 2006 CarswellNfld 72]. Reading these cases, there
    are 11 different elements of demeanour evidence discussed, including whether
    the witness exhibited intelligence, clarity, reluctance to testify,
    evasiveness, reticence, and other similar factors in their testimony. More
    importantly, these cases provide clear direction that a witness ought not to be
    disbelieved unless the evidence was illogical or unreasonable, unless there is
    contradictory evidence and unless there is something in the evidence that
    brings discredit to the witness. These last three considerations were brought
    into play in the arguments of the defence and of the Crown and in the manner
    the witnesses were cross-examined.

[25]

After these observations, which are not impugned, the trial judge
    made some comments about memory:

Each judge is left to his or her own devices
    in making these assessments. Judges are expected to integrate our life
    experiences with the reality of the world to come to conclusions as to what is
    logical and reasonable.
Similarly, we are left on our own
    to determine the theory for whether a memory is good or bad. Judges rarely hear
    expert evidence concerning memories. The exception is when expert witnesses are
    called with respect to the memories of children, repressed memories, memories
    of post-traumatic stress victims, other unique and vulnerable witnesses
.

Judges are frequently presented with different
    contrasting memory theories with no evidence or scientific support for the
    point being argued. The most frequent point being [that] the witness should
    have remembered [] a particular fact, and having not done so, should not be
    believed.

In these arguments that are made to a judge to
    support whether a witness is credible or incredible, contrasting memory
    theories are suggested. For example it will often be suggested that memories
    are a record of an individual's experience of events, or, alternatively, that a
    memory should be like a record of the event, like a video or audio recording.
    Arguments are made that we should expect memories of experienced events to be
    complete and other arguments would be made that a normal memory necessarily features
    forgotten details and gaps, and those gaps ought not to be an indicator of
    accuracy.

It is sometimes argued
    that memories typically contain only a few highly specific details. It will be
    argued that a witness should, and sometimes it is argued that [a witness]
    should not be able to have specific detail and long-term memories. This was an
    important argument with respect to the assessment of [the complainants]
    evidence
.

So, really, in the
    absence of expert evidence a judge is left alone to sort through the sorts of
    arguments that are presented in assessing the evidence based on memories
.

Finally, a judge is left
    with questioning whether a witness has a good memory versus a bad memory as an
    over-generalization. Is there a rating skill for memories? I wonder whether the
    real test is our ability to access a memory at the time of testifying
. [Emphasis added to identify portions challenged by the appellant.]

[26]

On several occasions during his reasons, the trial judge returned to
    the theme of memory. For example, in commenting on the complainants evidence
    concerning the 911 call, the judge observed that although she had a remarkable
    memory for detail, she had been challenged in cross-examination concerning her
    memory of whether [the appellant] took the cat to the basement or whether the
    cat ran to the basement. In discounting inconsistencies in her evidence on
    this issue, the trial judge observed:

I cant ignore that this evidence is being
    given in 2018 regarding an incident in 2013, reported in 2016. I dont find it
    logical or reasonable that any witness would be expected to have an exact
    memory of such a relatively minor and subordinate element in such an upsetting
    and traumatic overall event in which she was told to leave home, pack up her
    things, and the police arrived in response to a 9-1-1 call.

[27]

He added:

For the most part, cross-examination here
    focussed on details that were too minor to be considered as material
    inconsistencies and the omissions failed to rise to a level of significance
    over which a reasonably honest witness should be expected to consistently
    recall.

[28]

The appellant refers to the trial judges assessment of the evidence
    of C. as an example of the trial judges improper use of memory science. C. was
    interviewed by police in 2017 concerning events that had taken place in 2013
    and 2014, when he was 12 to 14 years of age. The trial judge noted that on
    cross-examination, C. had conceded that there was no reason for him to access
    his memory of these events until he was asked to do so in his 2017 police
    interview.

[29]

In assessing the credibility and reliability of C.s evidence, the
    trial judge observed that there was a significant element [of] self-interest
    in C.s testimony in support of his father and that C. had not been present for
    many of the assaults. He observed:

With respect to capacity, his ability to make
    observations, fix those observations in his short-term memories. He wasnt
    immediately present for the 9-1-1 incident or other subsequent assaults. [The
    complainant] testified he was present immediately after one assault and was
    part of the conversation between them.

I am not impressed that he had any distinct
    memories about any event that occurred at approximately the same time as these
    allegations of assault. I dont know whether he observed things but had [no]
    reason to enter them in his short-term memory. I do not know whether a 12 or
    13-year-old caught up on the edge of conflict between his father and his
    fathers spouse would choose to harbour these memories or try to forget them. I
    dont know how long he would try to hold onto these.

His trial testimony, his evidence does not
    necessarily undermine the evidence of [the complainant] on these points. I
    prefer to think that the witness has limited long-term memories which can be accessed
    accurately.

[30]

The appellants second concern relates to the trial judges
    assessment of the reliability and credibility of the complainants evidence.
    The trial judge observed:

I feel it is necessary to address the many
    inconsistencies [in the complainants evidence] raised by the defence. I
    earlier indicated I hold no expectation that trial testimony, a review of
    long-term memories related to the incident will be as accurate as an
    audio-video recording. I dont know if observations are reduced to short-term
    memory. Its human nature to make sense out of what is chaotic. It doesnt mean
    that it is an accurate memory. Observations made in stressful situations of
    trauma are difficult to move into accurate short-term memories. When short-term
    memories are stored as long-term memories there are questions of accessing
    those.

With respect to the 9-1-1 incident we know it
    happened in May of 2013, reported in 2016, trial in 2018. Memories were reduced
    to a video statement in 2016, into a statement then a video statement in 2016,
    testified to 2 years later.

As to the core events, I find that her
    statements are a version of her experience that took place years earlier. They
    have been shaped to some degree, but not on the main points.

[31]

Counsel for the appellant asserted that the trial judge used his
    theories of memory to discount inconsistencies in the complainants testimony
    and C.s lack of memory related to the 911 call assault and the assault
    comprising Count 7. The trial judge dismissed inconsistencies in the complainants
    evidence before trial and during trial by noting the difficulty of recalling
    memories of stressful and traumatic events. Counsel highlighted some of the
    trial judges comments about accessing memory while testifying, and noted the
    significance of the fact that C. did not remember the relevant incidents when
    testifying. For example, the complainant testified that C. witnessed the
    aftermath of the Count 7 assault and spoke to her about it, but C. denied any
    memory of the incident. The trial judge dismissed this lack of memory as an
    issue of short-term versus long-term memory storage during a traumatic event.
    The trial judge also found that C.s lack of memory relating to the 911 call
    did not impact either partys testimony.

[32]

Counsel for the respondent argued that the trial judges comments
    regarding memory were meant to convey only that memory fails with the passage
    of time. He submitted that the inconsistencies were peripheral and concerned
    minor incidents that took place some years earlier during more significant,
    upsetting events. He maintained that trial judges are able to take judicial
    notice of common sense matters like memory fails over time. Even if the trial
    judges comments constituted an improper use of judicial notice, respondents counsel
    maintained that the curative proviso would apply and that this error was
    harmless and had no impact on the ultimate decision.

[33]

I would not give effect to this ground of appeal.

[34]

The principles of judicial notice were recently explained by Brown
    J.A. in
R. v. J.M.
, 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 31-38.
    For the purposes of this appeal, only the following principles need be stated.
    First, courts may only take judicial notice of facts that are (1) so notorious
    or accepted, either generally or within a particular community, as not to be
    the subject of dispute among reasonable persons, or (2) capable of immediate
    and accurate demonstration by resorting to readily accessible sources of
    indisputable accuracy:
J.M.
, at para. 31.

[35]

Second, as Brown J.A. observed in
J.M.
, there are different
    forms of judicial notice. The form that arises in this case has been referred
    to as tacit or informal judicial notice. This involves the trier of fact
    drawing on common experience, common sense or common knowledge to interpret
    and understand the formal evidence presented at trial:
J.M.
, at para.
    32. One issue on this appeal is whether the trial judge applied common sense
    or common knowledge, or a specialized field of memory science, which should
    have been the subject of expert evidence.

[36]

Third, judicial notice has a procedural dimension. As a matter of
    transparency and trial fairness, there may be occasions when a trial judge has
    an obligation to advise the parties that they are contemplating taking judicial
    notice of a fact and to invite them to make submissions. As Brown J.A. stated
    in
J.M.
, at paras. 37-38:

More problematic are the occasions on which
    judges take judicial notice without the benefit of submissions from the
    parties. Such conduct by a judge lacks transparency, thereby risking the
    perception of the fairness of the hearing. It also risks crossing the boundary
    separating the notorious and readily demonstrable from the disputed and
    controversial, again risking the perception of procedural fairness. As put by
    [Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst,
Sopinka,
    Lederman & Bryant: The Law of Evidence in Canada
, 5th ed. (Toronto:
    LexisNexis Canada, 2018)]: "Judges should not conduct their own research
    and come to the conclusion that facts are notorious, for, there is no
    opportunity for the parties to respond:" at §19.61.

Where a judge, on his or her own initiative,
    wishes to take judicial notice of a fact or state of affairs that bears on a
    key issue in a proceeding, the adversarial process requires that the court
    ensure that the parties are given an opportunity to deal with the new
    information by making further submissions, oral or written, and allowing, if
    requested, fresh material in response: [David M. Paciocco, Palma Paciocco &
    Lee Stuesser,
The Law of Evidence
, 8th ed. (Toronto: Irwin Law,
    2020)], at p. 582.

[37]

The trial judge identified some of the principles that judges are
    required to apply in the assessment of the reliability and credibility of
    evidence. He correctly observed that memory is rarely the subject of expert
    evidence, but in spite of this, trial judges frequently observe the frailties
    of memory and routinely caution themselves about the risks associated with
    memory.

[38]

After his general observations with respect to the assessment of
    evidence, the trial judge simply expressed some propositions, grounded in
    common experience, that are familiar to every trial judge and lawyer and to lay
    people. Although he used different language, I would express these as:

·

observations made by witnesses in the course of
    traumatic events can be difficult to recall and to describe accurately at a
    later date;

·

a witness cannot be expected to have a faithful
    memory of minor incidents that occurred during a traumatic event and the
    inability to recall a minor or insignificant event does not detract from the
    witnesss overall reliability or credibility;

·

it is human nature to try to make sense out of
    bits and pieces of memories about an event, and this may impact the accuracy of
    a witnesss testimony concerning events; and

·

a child caught up in a conflict between his
    father and his fathers partner is likely to have conflicting loyalties and a
    judge should be cautious of accepting the childs recollection, recounted
    several years later, about events that may not have been particularly
    significant to the child at the time.

[39]

Although dressed up in unnecessarily scientific jargon, the trial
    judges application of these common experiences does not reflect error in his
    assessment of the evidence.

[40]

I would dismiss this ground of appeal.

(2)

Second Issue: Uneven Scrutiny of the Evidence

[41]

The uneven scrutiny submission has three branches. First, the
    appellant asserts that the trial judge overlooked inconsistencies in the
    Crowns evidence, improperly treating evidence called to refute recent
    fabrication as corroborative of the evidence of the complainant. Second, he
    submits that the trial judge made improper use of his observations of
    witnesses demeanour, including holding the appellant to a higher standard
    because he was a police officer. Finally, he submits that the trial judge erred
    by placing undue weight on the appellants discreditable conduct, particularly
    the vulgar, demeaning, and abusive language he directed at the complainant.

[42]

Before turning to the specifics of this ground, and the parties
    submissions, I make a few observations on the law with respect to uneven
    scrutiny.

[43]

The principles underlying uneven scrutiny as a ground of appeal were
    set out by Watt J.A. in
R. v. Radcliffe
, 2017 ONCA 176, 347 C.C.C.
    (3d) 3, at paras. 23-26, leave to appeal refused, [2017] S.C.C.A. No. 274:

First, as the appellant recognizes, this is a
    difficult argument to make successfully. The reasons are twofold. Credibility
    findings are the province of the trial judge. They attract significant
    appellate deference. And appellate courts invariably view this argument with
    skepticism, seeing it as little more and nothing less than a thinly-veneered
    invitation to re-assess the trial judge's credibility determinations and to re-try
    the case on an arid, printed record:
R. v. Howe
(2005), 192 C.C.C.
    (3d) 480 (Ont. C.A.), at para. 59;
R. v. George
, 2016 ONCA 464, 349
    O.A.C. 347, at para. 35.

Second, to succeed on an uneven scrutiny
    argument, an appellant must do more than show that a different trial judge
    assigned the same task on the same evidence could have assessed credibility
    differently. Nor is it enough to show that the trial judge failed to say
    something she or he could have said in assessing credibility or gauging the
    reliability of evidence:
Howe
, at para. 59.

Third, to succeed on the argument advanced
    here, the appellant must point to something, whether in the reasons of the
    trial judge or elsewhere in the trial record, that makes it clear that the
    trial judge
actually
applied different standards of scrutiny in
    assessing the evidence of the appellant and complainant:
Howe
, at
    para. 59;
George
, at para. 36.

Fourth, in the absence of palpable and
    overriding error, there being no claim of unreasonable verdict, we are
    disentitled to reassess and reweigh evidence:
George
, at para. 35;
R.
    v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20.

[44]

As Doherty J.A. observed in relation to an uneven scrutiny ground of
    appeal in
Howe
, it is not enough to show that the trial judge failed
    to say something they could have said in assessing credibility or expressly set
    out the legal principles relevant to that credibility assessment, or that a
    different trial judge could have reached a different conclusion on credibility.
    The appellant must point to something in the reasons or the record that makes
    it clear that the trial judge applied different standards in assessing the
    evidence of the appellant and the complainant: at para. 59.

[45]

This observation was recently referred to by Karakatsanis J. in
R.
    v. G.F.
, 2021 SCC 20, 404 C.C.C. (3d) 1, who observed that the Supreme
    Court has never ruled on the issue of whether uneven scrutiny is an independent
    ground of appeal. She noted that various provincial appellate courts have
    stressed that it is a notoriously difficult argument to prove and that
    [c]redibility findings are the province of the trial judge and attract
    significant deference on appeal: at para. 99. She expressed serious
    reservations about whether uneven scrutiny is a helpful analytical tool to
    demonstrate error in credibility findings. She continued, at para. 100:

As reflected in the submissions here, it
    appears to focus on methodology and presumes that the testimony of different
    witnesses necessarily deserves parallel or symmetrical analysis. In my view,
    the focus must always be on whether there is reversible error in the trial
    judge's credibility findings. Even in
Howe
, Doherty J.A. ultimately
    chose to frame the uneven scrutiny argument slightly differently: para. 64.
    Rather than say that the appellant had demonstrated uneven scrutiny of the
    evidence, Doherty J.A. explained that the essential problem in the trial
    judge's reasons was that he had "failed to factor into his assessment of
    [the complainant's] credibility his finding that she deliberately lied on
    important matters in the course of testifying in reply": para. 64. In
    appellate cases that have accepted an uneven scrutiny argument, there was some
    specific error in the credibility assessments: see, e.g., [
R. v. Kiss
,
    2018 ONCA 184], at paras. 88-106;
R. v. Gravesande
, 2015 ONCA 774, 128
    O.R. (3d) 111, at paras. 37-43;
R. v. Willis
, 2019 NSCA 64, 379 C.C.C.
    (3d) 30, at paras. 55-62;
R. v. Roth
, 2020 BCCA 240, 66 C.R. (7th)
    107, at para. 54. As shown in
Howe
, uneven scrutiny easily overlaps
    with other arguments for why a trial judge's credibility findings are
    problematic. It is therefore unsurprising to see uneven scrutiny tacked on to
    arguments like insufficiency of reasons, misapprehension of evidence, reversing
    the burden of proof, palpable and overriding error, or unreasonable verdict.

[46]

With those principles in mind, I turn to the first branch of the
    appellants uneven scrutiny ground  that the trial judge erred in his
    treatment of inconsistencies in the Crowns case. I do so while keeping in mind
    that the ultimate question is whether the appellant has demonstrated something
    in the record that shows that the trial judge applied different levels of
    scrutiny in assessing the evidence of the appellant and the complainant, or
    whether there is some reversible error in the trial judges credibility
    findings.

[47]

The appellants submission in relation to this issue largely
    concerns the trial judges treatment of the evidence of three witnesses called
    by the Crown to refute the allegation that the complainant had fabricated the
    assaults to gain advantage in ongoing family law proceedings concerning custody
    and access of the child of the marriage. The witnesses were the complainants
    older sister, the complainants co-worker, Ms. D., and the complainants
    friend, Ms. W. Much of their evidence, to which the defence did not object,
    consisted of communications the complainant made to them concerning the
    appellants conduct, including the alleged assaults. Two of the witnesses
    testified that they had seen bruises or injuries on the complainant, which she
    had attributed to the appellants abuse.

[48]

With respect to the evidence of the complainants older sister, the
    defence argued that inconsistencies between her evidence and the complainants
    was due to the complainants subsequent fabrication of her allegations. The
    trial judge found that the discrepancies were immaterial and insignificant. He
    added that the sisters evidence did corroborate several significant traumatic
    events relied upon as part of the prosecutions case.

[49]

The trial judge accepted Ms. W.s evidence, finding that she was
    quite integral as far as supporting witnesses and was vigorously
    cross-examined. The trial judge observed that the cross-examination made no
    inroads that the evidence of [Ms. W.] was intentionally false or had been
    molded by collaboration with [the complainant]. He added that [i]t does
    provide some corroboration of an incident where [the complainants] arm was
    hurt and that she made some complaint about locking herself in the bathroom
    while pregnant. The trial judge concluded that the manner in which [Ms. W.]
    answered questions and her demeanour was consistent with a truthful witness.
    Any apparent inconsistencies were effectively rehabilitated, particularly
    inconsistencies on minor omissions or a lack of concordance between that and
    her oral statement.

[50]

Finally, the trial judge found that the evidence of Ms. D., who
    testified that she saw bruises on the complainants neck, was supportive of the
    complainants evidence. He found that the defence allegation of recent
    fabrication in relation to this count was effectively countered by the
    evidence of the [complainants] attendance at the doctors office.

[51]

The appellant submits that the trial judge ignored or glossed over
    inconsistencies between the complainants evidence and the evidence of these
    witnesses. He also submits that the trial judge improperly used the
    complainants statements to the witnesses to corroborate the complainants
    accounts of events, instead of using them for the purpose they were tendered 
    to rebut recent fabrication. Finally, the appellant argues that the trial judge
    found corroboration in some evidence that was not corroborative.

[52]

Counsel for the appellant acknowledges that the trial judges use of
    the complainants prior statements is not a free-standing ground of appeal,
    based on an improper inference of corroboration from a prior consistent
    statement. It is simply part of the submission that the trial judge applied
    uneven scrutiny to the evidence.

[53]

Counsel for the respondent noted that the Supreme Court cast doubt
    on uneven scrutiny as an independent ground of appeal in
G.F.
Here, he
    submits that the trial judge did not convict on all counts and only convicted
    where the evidence supported the complainants allegations or where there was
    independent verification of injuries.

[54]

With respect to the complainants sisters evidence, respondents
    counsel argued that the trial judge did not rely on her evidence at all to
    convict  the only evidence relied upon in convicting on the count relating to
    the 911 call was the complainants evidence and the 911 call itself. The trial
    judges use of the language of corroboration when discussing the sisters
    evidence was a misnomer. The evidence was in fact being used to rebut recent
    fabrication, and not for the truth of its contents. Like the sisters evidence,
    Ms. W.s evidence was used to rebut the recent fabrication claim and was not
    integral to the conviction on the 911 call count.

[55]

I would not give effect to this first branch of the appellants
    uneven scrutiny submission, either standing alone or buttressed by the trial
    judges use of demeanour or bad character evidence. The appellant has not
    identified any palpable and overriding error in the trial judges assessment of
    the evidence or anything in the reasons or the record that
actually
demonstrates the application of different
    standards in the assessment of the evidence of the appellant and the
    complainant.

[56]

It bears noting that the trial judge acquitted the appellant on
    three counts of assault and one count of sexual assault. On Counts 4 and 5, the
    alleged moving day assaults in July 2014, the trial judge found that there was
    no supporting evidence and he was unable to reconcile the conflicting
    evidence. On Count 8, the alleged assault involving a door in March 2015, the
    trial judge was left in reasonable doubt because the complainant acknowledged
    that it could have been an accident. On Count 6, the alleged sexual assault in
    July 2014, the trial judge stated that the appellants evidence had left him in
    reasonable doubt, and he had limited supporting evidence.

[57]

In contrast, the trial judge convicted the appellant on counts where
    he not only accepted the complainants evidence and disbelieved the appellant,
    but also where there was corroborative evidence.

[58]

With respect to Count 1, the complainants evidence was supported to
    some extent by the 911 call itself. The trial judge accepted the complainants
    explanation of why she did not report the assault during the 911 call itself or
    when the police came in response to the call, and why she waited until 2016 to
    disclose the incident to police. The trial judge also noted in his reasons that
    the evidence of Ms. D. was supportive of the complainants evidence on this
    count, not only to rebut recent fabrication but also to corroborate physical
    injury, because Ms. D. observed a red mark on the complainants wrist and a
    bruise where the appellant allegedly grabbed her.

[59]

With respect to Counts 2 and 3 on October 6, 2013, the trial judge
    identified supporting evidence, including a doctors report, the observations
    of the independent witness Ms. D. concerning the complainants injuries, and
    the appellants apologetic email after the event.

[60]

Finally, with respect to Count 7, the November 2014 assault, the
    trial judge found independent corroboration of the complainants allegations in
    the call she made to Ms. W. while she had locked herself in the bathroom to
    escape the appellant, and the text message she sent to Ms. W. showing bruises
    on her arms. He found that the evidence of Ms. W. and Ms. D. served to refute recent
    fabrication. Considering the evidence of the complainant and these two
    witnesses, the evidence of the appellant was insufficient to raise a reasonable
    doubt.

[61]

I do not accept the submission that the trial judge made improper
    use of the appellants prior consistent statements. He correctly noted that
    contemporaneous statements to independent witnesses could be admitted to rebut
    the defence argument of recent fabrication. He was also entitled to rely upon
    the observations made by independent witnesses of the complainants injuries as
    corroborative of those injuries having been suffered.

[62]

I would therefore reject this submission.

[63]

In the second branch of his uneven scrutiny argument, the appellant
    submits that the trial judge relied excessively on demeanour in assessing
    credibility, and held the appellant to a higher standard because he was a
    police officer.

[64]

The trial judge acknowledged that credibility was an important issue
    at the trial. He observed:

Demeanour evidence is a significant part of
    the overall assessment in weighing of evidence. On its own, it should never be
    determinative of whether a witness should be believed or not believed. In this
    trial, the demeanour of the primary prosecution witness and the accused is
    significant in this assessment. There were instances of evasiveness, inability,
    refusal to answer direct questions, and insistence on making argument rather
    than presenting evidence. There was evidence of extreme animosity,
    prevarication, hostility, self-interest. This was a dysfunctional toxic
    relationship.

[65]

In commenting specifically on demeanour, and contrasting the
    demeanour of the appellant and the complainant, the trial judge stated the
    following with respect to the complainant:

I made earlier reference to demeanour
    evidence, For the most part [the complainant] testified without reluctance,
    without hesitation, responding to the questions put to her. She was respectful
    of the Court and the process. She had intelligence and education to communicate
    well. There were matters that were raised in cross-examination and if necessary
    to correct her evidence, she did. She was not easily led. When she was
    cross-examined and provided with more information and memory cues she provided
    more and better answers. A couple of times in her evidence it appears she
    either had no memory and she had periods of convenient forgetfulness. She
    wasnt a perfect witness.

[66]

In contrast, the trial judge said the following concerning the
    appellants demeanour:

While no Court should ever make a
    determination of reliability and credibility on demeanour evidence, [the
    appellant] exhibited poor demeanour and this becomes a negative factor in
    assessing evidence, He didnt respond directly to questions. He often provided
    excessive detail on minute points as if was a failed attempt to impress the
    Court about his memory for detail, while not appreciating that detail had
    nothing to do with the case was tangential and virtually impossible to subject
    to cross-examination. Having regard to his experience in the Waterloo Police
    Services, I expected him to have some experience testifying in court, perhaps
    having received some training on how to present himself. He presented poorly.
    He was argumentative.

In cross-examination when answering questions
    he frequently used it as an opportunity to make legal argument, to attack the
    character of [the complainant], to attack the investigation and to impress the
    Court that [the complainant] was an unreliable witness. He had more than
    competent counsel to do that for him. For example, on many occasions he told
    the Court unprompted that [the complainant] was insanely jealous, manipulative,
    and had engaged in conniving behaviour since the day he first met her.

[67]

I do not accept the appellants submission that the trial judge made
    inappropriate use of demeanour evidence in his evaluation of credibility.

[68]

As we observed in
R. v. Hemsworth
, 2016 ONCA 85, 334 C.C.C.
    (3d) 534, at paras. 44-45, reliance on demeanour must be approached cautiously
    and it is of limited value in the assessment of credibility:

This court has repeatedly cautioned against
    giving undue weight to demeanour evidence because of its fallibility as a
    predictor of the accuracy of a witness's testimony:
Law Society of Upper
    Canada v. Neinstein
, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66;
R. v.
    Rhayel
, 2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in
Rhayel
,
    at para. 85, "[i]t is now acknowledged that demeanour is of limited value
    because it can be affected by many factors including the culture of the
    witness, stereotypical attitudes, and the artificiality of and pressures
    associated with a courtroom."

Although the law is well settled that a trial
    judge is entitled to consider demeanour in assessing the credibility of
    witnesses, reliance on demeanour must be approached cautiously: see
R. v.
    S. (N.)
, 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 26. Of
    significance in this case is the further principle that a witness's demeanour
    cannot become the exclusive determinant of his or her credibility or of the
    reliability of his or her evidence:
R. v. A. (A.)
, 2015 ONCA 558, 327
    C.C.C. (3d) 377, at para. 131;
R. v. Norman
(1993), 16 O.R. (3d) 295
    (C.A.), at pp. 313-14.

[69]

As I have noted above, the trial judge specifically instructed
    himself about the limited use to be made of demeanour. Although an appellate
    court does not have the advantages of a trial judge in relation to the
    assessment of demeanour, a review of the record supports the trial judges
    observation that the appellants testimony often provided excessive detail on
    minute points and that during cross-examination, he took the opportunity to
    make legal argument, to attack the character of [the complainant], to attack
    the investigation and to impress the Court that [the complainant] was an
    unreliable witness. Appendix C to the respondents factum includes extracts
    from the appellants cross-examination containing numerous examples of the
    appellant refusing to answer questions directly, making argument, providing
    information not relevant to the question, and using the opportunity to gratuitously
    attack the complainant.

[70]

The trial judge was entitled to take this behaviour into account
    when assessing the appellants credibility. While I question the validity or
    utility of the trial judges comment that he would have expected a police officer
    to have had training about how to present himself in court, this comment was
    followed by an observation that the appellant presented poorly and was
    argumentative  the latter comment is supported by the record.

[71]

For these reasons, I would reject the submission that the trial
    judge made inappropriate use of the appellants testimonial demeanour.

[72]

The final branch of the uneven scrutiny ground is the appellants
    submission that the trial judge erred in his treatment and use of bad character
    evidence, and applied an unbalanced approach to his analysis of the evidence of
    the conduct of the complainant and the appellant. The complainant had brought
    an
ex parte
application against the appellant in family court, without
    disclosing that he had offered to settle the issues of custody and access. She
    was ordered to pay the appellant $35,000 in costs, presumably as a sanction for
    her conduct. In assessing this evidence, the trial judge stated:

It is argued that [the complainant is]
    vengeful, blaming him for the breakup of the relationship.
In a small way some of her conduct bring discredit to her under
    the issue of bias
. She brought an ex parte application against him in
    family court without revealing that he had offered to negotiate the issues of
    custody and access in a letter sent by his lawyer. It was argued that her
    testimony was crafted only to show [the appellant] in the worse light. I am
    asked to hold that she only regards [the appellant] with an entirely negative
    attitude. [Emphasis added.]

[73]

The appellant asserts that the trial judge all too easily forgave
    the complainants attempt to deceive the court in the family law proceedings,
    while applying a stricter standard to his conduct.

[74]

In contrast, the appellant submits that the trial judge used
    evidence of his bad character  specifically, his crude, demeaning, and abusive
    language directed towards the complainant  to infer guilt. He submits that the
    trial judges conclusion that his conduct was discreditable, and that the
    complainants conduct only brought discredit to her in a small way, was
    indicative of an unbalanced approach to the assessment of evidence.

[75]

There are many examples in the trial judges reasons of the
    appellants language. The appellant points to six occasions in the reasons. I
    will refer to one, contained in a text message, which the trial judge quoted as
    follows:

I hate your fucking guts you no good fucking
    whore. I let you in my childs life and I knew I never should have trusted you,
    especially when you want me to choose between you and him. Youre a selfish
    cunt, I fucking hate you. I hate you.
[1]

[76]

The trial judge observed:

Within the evidence there are many, many
    examples of the manner in which [the appellant] spoke to [the complainant]
    directly, electronically. His choice of nouns, verbs and adjectives used in
    addressing [the complainant] were inconsistent with appropriate inter-spousal
    language. One would expect a police sergeant in his 40s speaking to a much
    younger wife to be more temperate. Instead, he was vulgar, profane, frequently
    referring to parts of the female anatomy. He was bullying in tone and
    frequently appears to be out of control. It was demeaning language, it was
    disrespectful.



[W]e must remember that the vocabulary used by
    [the appellant] towards [the complainant] continues in a vile, profane, vulgar
    and demeaning tone. Its difficult to imagine why a man would use such language
    directed to another man let alone a woman, let alone a woman in a domestic relationship,
    particularly in the voice of a trained police officer. It speaks to rage and a
    loss of control.

[77]

The limits on the use of bad character evidence were set out in
R.
    v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 64:

As the majority of the Court of Appeal noted,
    the evidence of Mr. Calnen's after-the-fact conduct was admissible on the
    question of his credibility. Evidence of extrinsic discreditable conduct that
    is otherwise relevant and admissible with respect to an issue in the case may
    be used to assess the accused's overall credibility. In
R. v. G. (S.G.)
,
    [1997] 2 S.C.R. 716, at para. 70, Cory J. laid to rest any doubt about this
    common sense proposition:

To require a jury to compartmentalize its
    thinking even further than this would be artificial and unnecessarily
    convoluted. It is a matter of common sense that evidence of bad character may
    reflect badly on the accused's credibility, and that the jury can use it as a
    factor in determining if the accused is likely to be telling the truth. This is
    not the same thing as suggesting that the accused is guilty because she is a
    bad person, or may have a disposition to commit the type of crime for which she
    is charged.

[78]

I do not accept the submission that the trial judge used the
    appellants bad conduct to infer guilt. He referred to the appellants specific
    behaviour, not his character. The trial judge was entitled to find that the
    appellants abusive language, directed towards the complainant on many
    occasions relating to the charged events, speaks to rage and a loss of
    control. It also speaks to jealousy and therefore
animus
. He was also
    entitled to consider the complainants misconduct in the family law proceedings
    as of little relevance to her credibility in relation to the four counts on
    which the appellant was convicted.

[79]

I would dismiss this ground of appeal.

(3)

Third Issue: Reasonable Apprehension of Bias

[80]

The appellant points to three interventions by the trial judge,
    which he asserts give rise to a reasonable apprehension of bias, thereby compromising
    trial fairness. While he acknowledges that, collectively, they do not warrant a
    new trial, he submits they may be relevant when assessing the other grounds.

[81]

The respondent submits that the appellants failure to raise the
    issue of bias before the trial judge should be a complete answer to this ground
    of appeal.

[82]

For the reasons that follow, I see no merit to this ground of appeal
    and it has no effect on the other grounds, which I reject in any event.

[83]

Before examining the incidents identified by the appellant, I will
    briefly set out the applicable principles, which are not in dispute.

[84]

Public confidence in the legal system is grounded in the perception
    that those who adjudicate in law must always do so without bias or prejudice
    and must be perceived to do so:
Wewaykum Indian Band v. Canada
,
    [2003] 2 S.C.R. 259, at para. 57;
Yukon Francophone School Board, Education
    Area #23 v. Yukon (Attorney General)
, 2015 SCC 25, [2015] 2 S.C.R. 282, at
    para. 23.

[85]

In determining the existence of a reasonable apprehension of bias,
    the test is: what would an informed person conclude, having viewed the matter
    realistically and practically and having thought the matter through? Would the
    person think that it is more likely than not that the decision-maker, whether
    consciously or unconsciously, would not decide the matter fairly?:
Committee
    for Justice and Liberty v. National Energy Board
, [1978] 1 S.C.R. 369, at
    p. 394,
per
de Grandpré J. (dissenting);
Yukon Francophone School
    Board
, at paras. 20-21;
R. v. Ibrahim
, 2019 ONCA 631, 147 O.R.
    (3d) 272, at para. 83.

[86]

There is a presumption of judicial impartiality. That presumption
    may be displaced where the party establishes a real likelihood or probability
    of bias:
Yukon Francophone School Board
, at para. 25; see also
Ibrahim
,
    at para. 84.

[87]

A judges comments during a trial cannot be considered in isolation.
    The inquiry is inherently contextual and fact-specific, and there is a
    correspondingly high burden on the party alleging bias:
Yukon Francophone
    School Board
, at paras. 25-26;
Ibrahim
, at para. 85.

[88]

As a general rule, allegations of bias or a reasonable apprehension
    of bias should be advanced as soon as it is reasonably possible to do so. This
    can serve to alert the trial judge to the possible need to modify their
    behaviour or for a corrective jury instruction. It may also serve to create an
    evidentiary record and a ruling for the purpose of an appeal, if necessary:
R.
    v. Mills
, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 227.

[89]

The appellants first submission on this issue concerns an incident
    that occurred after the trial judge made a ruling unfavourable to the defence.
    It arose in the following manner.

[90]

The defence had challenged the complainants delay in reporting the
    alleged assaults to police, pointing out that she knew a number of officers and
    was familiar with the criminal justice system. During her cross-examination,
    defence counsel asked whether she was, at that time, in a relationship with a
    police officer whom she described as a roommate. The Crown objected to the question
    based on s. 276 of the
Criminal Code
. Defence counsel responded that
    he was simply trying to establish that this woman is well connected across a
    number of police services in order to rebut her evidence that she was so lost
    that she could never report any of this.

[91]

The trial judge indicated that defence counsel could ask the witness
    whether she had a relationship with the individual
prior
to making her complaint, but that her relationship with the individual in the
    present could not be relevant. There followed a brief and evidently somewhat
    heated dialogue between the trial judge and defence counsel over the questions
    the latter proposed to ask the witness. The trial judge said, Now, this line
    of questioning stops right here. Its just totally irrelevant and immaterial.
    You cant link it to anything that would be of any assistance to me in
    determining the issues so . The discussion continued, and after a few
    moments, the following exchange occurred:

Defence Counsel: Your Honour, I dont think
    have to telegraph [the import of the question to the complainant] according to
    [
R. v. Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193].

The Court: You do if you have to establish
    relevance and materiality and since you choose not to do so, the ruling

Defence Counsel: Well

The Court: The ruling stands, [defence
    counsel]. Were moving on.

Defence Counsel: Not that I

The Court: Were moving on, [defence counsel].

Defence Counsel: Respectfully, we will then
    have

The Court: Get a court officer in here,
    please.

Defence Counsel: Can we take a break, please?

The Court: We will.

Defence Counsel: If that  may I just put
    something on the record, please?

The Court: Yes.

Defence Counsel: Okay. Again, may I file [
Lyttle
]?

The Court: You may file [
Lyttle
].

Defence Counsel: Because I take it that the
    reason  may I ask why a court officer has to attend?

The Court: I like to have security in the
    courtroom when Im hearing criminal matters and I think it enforces the need
    for proper decorum in the courtroom and thats what I think I would like to
    have henceforth in this matter.

Defence Counsel: All right. And may I address
    that?

The Court: You may.

Defence Counsel: All right. Because really,
    with great respect, what youre suggesting is that Im bordering on contempt,
    which I disagree with and, according to [
Lyttle
], I have  Im
    duty-bound professionally to jealously protect my clients interests. And  to
    sort of  to impugn my  my credit, Your Honour, with great respect, I dont
    think is necessary and therefore Id like a break to consider my options and
    whether or not I need to bring a motion

The Court: We will take a break but I want to
    answer you. Youre not bordering on contempt but when I have counsel not
    accepting my decision, then Im thinking that counsel is beginning to go down a
    path that I dont want to have take place in this courtroom. And it is a
    criminal matter and Im going to have security in this courtroom from now on.

Defence Counsel: And again, so that I can
    state what my concern is in view of what youve raised, the difficulty of
    course with your ruling is that it creates a [
Browne v. Dunn
(1893), 6
    R. 67 (U.K. H.L.)] situation because then I cant establish what Ive been
    prohibited from doing so

The Court: Youve asked for a break. Im
    giving you that break.

[92]

After the break, the Crown withdrew its objection to what had
    appeared to be a question raising s. 276 concerns. The trial judge told defence
    counsel that he could ask the questions, but added that wide latitude to
    cross-examine did not mean unbridled licence and that cross-examination is
    subject to the requirements of good faith and other limitations. Defence
    counsel responded, I have always conducted myself with good faith, with all
    due respect. I think Ill stand on my reputation. The trial judge said, Im
    not talking about your reputation. Im talking about good faith in this trial.
    To which defence counsel replied, Theres good faith in this trial.

[93]

The appellants second submission on the issue of bias arose during
    the cross-examination and re-examination of the appellants mother, whom the
    defence called as a witness. Her evidence was brief and almost exclusively
    confined to one of the compliance charges. The Crown cross-examined her, also
    briefly, asking whether she saw anything in the relationship between her son
    and the complainant that caused her concern. She replied:

A: A couple of things that happened that did -
    did disturb me and - and - and bother me and it had to do with [J.].

Q: Okay. Because we're not dealing with [J.]
    in this case I'm gonna just let that go, okay.

A: Yes, all right.

[94]

In re-examination, defence counsel asked about the witnesss answer
    with respect to J. The Crown objected on the basis that it was not a proper
    subject of re-examination. The trial judge asked defence counsel how the
    question was material and relevant. Defence counsel replied that he did not
    know, but asserted that he was entitled to an answer. The following dialogue
    ensued:

The Court: You're not unless it is material
    and relevant and I'm giving you that opportunity to  to argue and present that
    her answer on this point is material and relevant in this proceeding. It may be
    interesting but it's not material and relevant in a criminal process as it
    stands now. Make your argument and satisfy me.

Defence Counsel: How can I make an argument
    when I don't know the answer?

The Court: Well then that's the end of it
    isn't it.

Defence Counsel: Well that's your ruling.

The Court: That's my ruling.

Defence counsel: Thank you. Thank you for
    coming today ma'am. I know you spent the whole day here and it's a hard long
    day but I thank you for coming. All right.

The Witness: I spent nine days here sir.

[95]

The third and final complaint regarding bias is an allegation that
    the trial judge unfairly pressured defence counsel to abbreviate or end his
    cross-examination of the complainant, who testified over five days in mid-May
    and mid-June of 2018. Her evidence in chief was conducted on May 15 and 16 and
    her cross-examination took place on June 11, 12 and 13.

[96]

On the afternoon of June 12, the trial judge granted an adjournment
    to the following day because the complainant had a breakdown and was unable to
    compose herself after what the trial judge described as a long and withering
    cross-examination.

[97]

The appellant takes issue with comments made by the trial judge when
    the complainants cross-examination resumed the following day, June 13, 2018.
    He submits the trial judge made several comments encouraging defence counsel to
    take shortcuts in the cross-examination and urging him to get it done today,
    in spite of counsels objections that he did not want to be rushed.

[98]

In the course of these exchanges, the Crown raised a concern that
    the evidence should be completed that day because if that did not happen, there
    would be a break for several months over the summer before the trial resumed.
    The trial judge said, Well, you can waive those concerns. If the staff is
    onside Ill cut lunch back to half an hour today and well go late until shes
    done. We have to do what we have to do.

[99]

Defence counsel pointed out that he had personal and family
    responsibilities and was tired at the end of the day. The trial judge stated:

Well, lets see where were at. Well take the
    bite out of lunch and if we have to  Im not going to sit until 6:00 or 7:00
    or anything like that, but we might have to go to 5:00. Thats about it. Ive got
    to be  have considerations for the staff. They may have childcare
    responsibilities. Ill have to talk to them about that. Lets start off by
    taking a bite out of lunch today and seeing where we go.

[100]

Later that morning, as defence counsel was about to cross-examine
    the witness on a prior statement, the Crown rose to provide a copy to the trial
    judge. There was a discussion about whether that was necessary, at which point
    the judge observed:

The Court: Im just concerned of getting
    things moving because Im seriously considering finishing your
    cross-examination today so any shortcuts we can take to get matters
    (unintelligible) would be appreciated.

Defence Counsel: Well, I just  with all due
    respect, I cant be rushed. I trust thats

The Court: Im not going to rush you. Im not
    going to rush you but were going to stay late. So lets get on with it so we
    can cover this material.

Defence Counsel: Well, I am. If it needs to be
    said, I havent been dragging. Its been

The Court: [Defence counsel], nobody is
    picking on you. I havent said anything. Ive got to get this done. Ive got a
    witness here whos had a breakdown yesterday. We lost half a day. Im going to
    sit late. If we have to order dinner in so everybody can be refreshed, well do
    it, but were all going to share the pain and were going to get it done.

Defence Counsel: Right. And I have commitments
    and I cant stay beyond a reasonable time as we discussed before the witness
    came in.

[101]

Just before the lunch break, defence counsel asked the complainant
    about having witnessed assaults committed by the appellant on his son, C. This
    issue had not previously been raised in the complainants evidence and the
    Crown rose to state that if the defence raised it, the Crown would re-examine
    the complainant about it. The trial judge observed to defence counsel:

The Court: The Crown is indicating that if you
    want to open the door, they intend to try to walk through it. Do you want that
    lunch [break] to two oclock right now and [defence counsel], itll give you a chance
    to get your thoughts consolidated?

Defence counsel: Yeah. Id appreciate it. I
    think we could both have a little longer because it could well be that I

The Court: Ive got to pick up the time here.
    I have this matter coming back in September and Im not  Im going to tell you
    right now, this is a cross-examination where youve been accessing everything
    that this witness has said and answered and Im not going to have
    cross-examination in September/October on what she said today based on a transcript
    today on matters that arent overwhelmingly material so I think its got to be
    done today and I think the witness is fragile and I dont like the idea of
    working late. Im well past the age when Im in my prime after 4;30. Weve got
    to get it done today. Lets take the break. By the time we walk out of here 
    lets just come back at two oclock. Well be starting at two oclock. Well
    have picked up at least half an hour on this and well go from there. You know,
    the two of you, if youve got some issues you want to get into, talk about it
    so we can get to the heart of whats being asked. Okay?

[102]

At this point, defence counsel indicated that a somewhat longer
    lunch break might be helpful so that he could review his notes, because his
    cross-examination might be almost finished. The trial judge acknowledged that
    he could take more time, if required.

[103]

As matters transpired, both cross-examination and re-examination
    were completed that afternoon.

[104]

In addition to the foregoing incidents, the appellants factum identifies
    several interchanges between the trial judge and counsel, which he submits were
    critical, disparaging, or interruptive. I do not find it necessary to recount
    them in full for the purpose of evaluating this ground of appeal.

[105]

In my view, the record in this case does not come close to
    displacing the presumption of judicial impartiality.

[106]

First, I acknowledge that the trial judges call for security was
    demeaning of counsel, inappropriate, and very unfortunate. That said, it was
    triggered by counsel continuing to dispute a ruling made by the trial judge.
    That, too, was improper and regrettable. However, on a full review of the
    record, including the proceedings after the exchange and the entire course of
    the trial, this was an isolated incident in what was clearly a hotly contested
    and somewhat lengthy trial. Having regard to the entirety of record, it does
    not reflect bias.

[107]

Nor do I see unfairness in relation to the re-examination of the
    appellants mother. She gave a non-responsive answer to a question during
    examination-in-chief, an answer that the Crown did not pursue. That did not
    open the door to re-examination. In any event, the trial judges ruling does
    not reflect bias.

[108]

Finally, I do not accept the submission that the trial judge
    demonstrated bias or acted improperly in urging counsel to complete the
    complainants cross-examination to avoid having to continue her evidence
    several months later. That submission must be understood in the context of a
    witness whose evidence had occupied five days, three of them in
    cross-examination, and who had become emotionally distraught the previous day
    during a vigorous cross-examination. Looking at the issue in context and not in
    isolation, the record discloses that the trial judge recognized the challenges
    defence counsel was facing and made reasonable efforts to accommodate them.

[109]

It is a bedrock principle of our criminal justice system that an
    accused person has a constitutional right to a fair trial. But that does not
    mean a trial without limits. While giving paramount consideration to the right
    of an accused to make full answer and defence, a trial judge has a public
    responsibility to ensure appropriate use of valuable public resources
    (courtroom and court staff time) and to ensure that other participants in the justice
    system (including witnesses and jurors) are not unnecessarily burdened. Given
    the circumstances identified by the trial judge, it was entirely appropriate
    for him to encourage counsel to seek ways to simplify and expedite the
    completion of the complainants evidence.


V.

DISPOSITION

[110]

For these reasons, I would dismiss the appeal.

Released: January 7, 2022  G.R.S.

George
    R. Strathy C.J.O.

I
    agree. C.W. Hourigan J.A.

I
    agree. David M. Paciocco J.A.





[1]
The actual language of the text message was: I fucking hate ur
    fucking guts u no good fucking whore! I let u in my childs life and I knew I
    shud have never trusted u! Especially when u want me to choose btw u and him! U
    r a selfish fucking cunt! I fucking hate u! I hate u!


