



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Sararas, 2022 ONCA 58

DATE: 20220125

DOCKET: C66274

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ray Sararas

Appellant

Amy Ohler, for the appellant

Jennifer Trehearne, for the respondent

Heard: September 22, 2021 by video conference

On appeal from the convictions entered
    by Justice R. Cary Boswell of the Superior Court of Justice on October 26,
    2017, with reasons reported at 2017 ONSC 6423, and from the sentence imposed on
    February 26, 2018, with reasons reported at 2018 ONSC 1328.

Rouleau J.A.:

OVERVIEW

[1]

The trial judge convicted the appellant on three
    counts of gross indecency and three counts of sexual assault. He conditionally
    stayed the appellants convictions for gross indecency according to the
    principles in
R. v. Kineapple
, [1975] 1 S.C.R. 72, and sentenced the
    appellant to five years in a penitentiary. The appellant appeals both
    conviction and sentence. The sole ground of appeal from conviction is that he
    did not receive effective assistance of counsel at trial. The appellant outlines
    ten areas of concern, focussing primarily on trial counsels failure to conduct
    meaningful cross-examination of the complainants at both the preliminary inquiry
    and trial, failure to investigate defence evidence, failure to adequately
    prepare the appellant to testify and prepare for the trial generally, and failure
    to explore the possibility of collusion or offer any prepared resistance to the
    Crowns application to adduce similar fact evidence.

[2]

The appellant maintains that these failures led
    to a miscarriage of justice, and tenders three volumes of fresh evidence in
    support of his appeal.

[3]

The Crown concedes that four areas of alleged
    ineffective assistance of counsel have been made out. These are trial counsels:
    failure to pursue in depth the nature and extent of the communications between
    the complainants as a precursor to an examination of any possible collusion;
    failure to pursue the issue of the appellants opportunity to commit the
    offences alleged to have occurred at bedtime; failure to challenge the
    complainants on inconsistencies between their police statements, their
    preliminary inquiry evidence and their trial evidence; and failure to challenge
    the complainants on their memories despite the historical nature of the
    allegations. The Crown maintains, however, that, despite these failures, the appellant
    has not met his onus of showing that there is a reasonable probability that the
    verdict would have been different had trial counsel explored the four areas
    noted above. The appellants convictions are therefore not the result of a miscarriage
    of justice.

[4]

In the Crowns submission, the appellants fresh
    evidence does not undermine the credibility of the three complainants. Given
    the striking similarity in the manner and circumstances in which the alleged offences
    were carried out, the Crown argues that its similar fact application would inevitably
    have been allowed, and the evidence against the appellant was thus overwhelming.
    Any attack suggesting that there had been collusion would certainly have been
    unsuccessful.

FACTS

[5]

The allegations arise from the appellants work
    in a group home known as Highland Crossroads in 1984. Crossroads was a home for
    troubled children. The Childrens Aid Society regularly placed wards in that
    home. This was the case for the three complainants: E.E., D.P., and F.D.

[6]

Through his work as a counselor at the Graphite
    Bible Camp, located in a nearby community, the appellant met Mr. and Mrs.
    Waterhouse, the owners of Crossroads. The appellant volunteered and, for a
    period, was employed at Crossroads. He would sleep there five nights a week in
    a little room under the stairs.

[7]

The appellant testified at trial and denied the
    allegations. He explained that his duties were principally helping out by doing
    laundry, making lunches, and doing the dishes. He would also assist with
    bedtime preparation. The bedtime routine involved asking the children about
    their day and praying with them. According to the appellant, the children told
    him that the other workers at the home gave them backrubs at bedtime. The
    appellant followed suit.

[8]

The complainants alleged that the sexual
    assaults and gross indecency took place during the backrubs given as part of
    the bedtime routine. The first complainant to testify at trial, E.E., recalled
    that the appellant sometimes participated in backrubs, but did not allege any
    assault at the group home. Instead, he testified that the appellant invited him
    to his house for the weekend. The first night, when the appellant came to tuck
    him in, the appellant gave E.E. a backrub and, after rolling him onto his back,
    began to rub his chest and stomach. He slid his hand under E.E.s pyjama and tried
    to masturbate him. E.E. turned away and the appellant left the room. This is
    the only incident E.E. recalls. The next morning, E.E. asked to return to
    Crossroads, and the appellant and his wife drove E.E. back to the home.

[9]

F.D. alleged that he was assaulted at the home
    on numerous occasions. He testified that the appellant would tuck him in if the
    owners of the home were busy. The appellant would sit on the side of F.D.s
    bed, ask F.D. about his day and talk about God and Jesus. He would then massage
    F.D.s chest and continue rubbing until he was touching F.D.s genitals with
    his open palm and his forearm. F.D. cannot state specifically how many times
    this occurred but estimates that it was 50 times or more. On two occasions,
    F.D. recalled having ejaculated.

[10]

D.P. testified about at least three very
    similar sexual assaults having occurred at bedtime while the appellant was
    tucking him in. D.P. also recalled another incident where the appellant brought
    D.P. into a clearing behind the house. There, the appellant made D.P. lay down
    and rubbed himself on D.P. At one point, the appellant put D.P.s penis in his
    mouth for a few seconds. D.P. testified that, some 30 years after the assaults,
    he reported the assaults to his probation officer for the purposes of a
    pre-sentence report. The probation officer then reported the assaults to police,
    leading to these charges.

Trial Decision

[11]

The trial judge identified the central issue as
    whether the alleged events actually took place. The trial judge accepted the
    evidence of all three complainants, finding that each had a remarkable
    recollection of the group home and the events that transpired there. The trial
    judge cited details in each of the complainants evidence that he found
    particularly compelling. He noted that there was no indication that the
    complainants testimony was inconsistent with the statements the complainants
    may have made on prior occasions.

[12]

The trial judge accepted E.E.s evidence that he
    had told his Childrens Aid worker, Mr. Barry, about the abuse. The trial judge
    explained that Mr. Barry apparently failed to report the assault because fate
    intervened in the form of a murder at Highland Crossroads, and [E.E.s]
    complaint, tragically, got lost in the shuffle. This is a reference to the
    fact that, in July of 1984, a resident of Crossroads was murdered by another
    resident. Further, the trial judge acknowledged that both E.E. and D.P. had
    lengthy criminal records with convictions for offences of dishonesty. He
    nonetheless accepted their evidence, noting that E.E.s criminal record was
    dated and D.P.s evidence was compelling, detailed and several aspects were
    corroborated by other evidence. In addition, there appeared to be an absence of
    a motive to fabricate.

[13]

With respect to the appellants evidence, the
    trial judge found that there was nothing about his demeanour that would
    suggest he was not a truthful or reliable witness. However, the trial judge focussed
    on two aspects of the appellants testimony that caused him sufficient concern that
    he rejected his evidence. The first was the appellants concerted effort to
    minimize his involvement with the children at the group home. The second was
    the appellants evidence as to how E.E. came to spend the night at his home.
    That explanation, according to the trial judge, defie[d] belief.

[14]

The Crown asked the trial judge to consider the
    similarity of the allegations against the appellant as evidence that they had
    actually occurred. The trial judge agreed. He noted that:

(i)

except for D.P.s description of the events
    behind the house, there were many significant similarities in the complainants
    descriptions of events;

(ii)

the number of occurrences was significant;

(iii)

the complainants were credible and reliable; and

(iv)

absent collusion, the improbability of coincidence was very high.

[15]

The trial judge then went on to reject the
    notion that the complainants had colluded. Although the complainants had spoken
    to each other over the previous three decades, the trial judge was not
    persuaded that their discussions progressed beyond very general comments or
    that there was evidence of actual collusion. The trial judge found that it made
    no sense that the three complainants would collude 30 years down the road.

[16]

The trial judge found that the risk of prejudice
    if the similar fact application were granted was low because the trial was by
    judge alone and no additional time was taken up to introduce it. The evidence
    was already part of the record and there was no risk that it would be misused.
    As a result, he allowed the count to count similar fact evidence.

FRESH EVIDENCE APPLICATION

[17]

The appellant filed extensive fresh evidence in
    support of his allegations of ineffective assistance of counsel. The proposed fresh
    evidence consists of affidavits from the appellant, the appellants niece
    Nicole Armstrong, and trial counsel, transcripts of the cross-examinations of
    each affiant, trial counsels file, transcripts of the preliminary inquiry and
    discoveries, and correspondence between the appellant and trial counsel. Given
    the importance of the fresh evidence being tendered, I provide a summary of the
    significant points made therein.

(a)

Appellants Evidence

[18]

The appellant has no post-secondary education
    and no legal training. He explains that, before he testified in his defence, he
    had never testified or been cross-examined in any proceeding. He states that he
    first contacted trial counsel after he was released on a promise to appear. In
    the two years between first contact and trial, the two never had a substantive
    conversation about the case. The first exchange the appellant had with trial
    counsel was when he came to the courthouse for the preliminary inquiry. There were
    no further exchanges until the day of trial.

[19]

The appellant indicates that he sent emails with
    notes raising various issues. They all went unanswered. Indeed, trial counsel
    never told the appellant what information would be useful to his preparation.

[20]

According to the appellant, when he met with
    trial counsel on the morning of the preliminary inquiry, trial counsel spent the
    meeting discussing his experience in sexual assault cases and telling the
    appellant that the Crown bore the burden of proof. During the inquiry itself,
    trial counsel was so passive that the appellant surmised there must be a rule
    against cross-examining complainants in a pointed or aggressive fashion. At the
    end of the preliminary inquiry, trial counsel told the appellant that he would later
    be discovering the Waterhouses, who owned and operated the group home, as well
    as the Pothars,
[1]
who worked and lived at the home. As it later turned out, trial counsel
    discovered only the Waterhouses. The appellant learned that the Pothars were
    not discovered only when he was committed for trial in the Superior Court.

[21]

Following the preliminary inquiry and before trial,
    the sole communication the appellant received from trial counsel was an email
    where trial counsel wrote I expect you will take the stand to deny these
    allegations. The decision to testify will be yours, and you dont have to
    decide until the close of the Crowns case.

[22]

At trial, the appellant again wondered whether
    trial counsel was restricted in his cross-examination. Trial counsel later
    affirmed that he viewed the complainants as strong witnesses likely to be
    believed at trial. However, trial counsel did not disclose this to the
    appellant prior to trial. Further, it is only once the trial was already
    underway that trial counsel instructed the appellant on his testimony. This was
    done during a meeting of about five minutes over the lunch break immediately
    before the appellant took the stand. Trial counsel did not say what he would
    ask the appellant.

[23]

The appellant describes his anxiety, confusion,
    and a feeling of abandonment when he took the stand. Trial counsel told him to
    answer questions put to him in cross-examination with yes, no or I dont
    remember. He was to act indignantly if the Crown suggested guilt and remain
    polite throughout. Otherwise, the appellant was on his own.

[24]

In the course of cross-examination on his
    affidavit, the appellant acknowledged that, in addition to the conversations at
    the preliminary inquiry and at trial, there had been one other conversation
    with trial counsel. This occurred sometime between discovery and trial, where trial
    counsel told the appellant how he had been impressed by the Waterhouses.

[25]

Further, the appellant admitted in
    cross-examination that trial counsel had told him not to speculate and that,
    contrary to trial counsels instructions, he did end up speculating during his
    cross-examination at trial. There, he described how he thought a snowstorm must
    have been the reason Mr. Waterhouse asked him to pick up E.E. and why E.E. came
    to his house. He explained that he ended up speculating because he had not
    thought about some of the events from the summer of 1984 in almost 30 years. If
    only he could have gone over his testimony with his lawyer, his
    cross-examination would have, in his view, been much smoother.

(b)

Evidence of Nicole Armstrong

[26]

The appellants description of the minimal
    preparation he received from trial counsel is largely confirmed by the evidence
    of his niece, Nicole Armstrong. She indicated that she was present for every
    meeting the appellant held with trial counsel, including the five-minute lunch
    time meeting where trial counsel prepared the appellant for his testimony.

(c)

Trial Counsels Evidence

[27]

Trial counsel explained that he viewed the case
    as straightforward. He based his strategy on the appellants complete denial of
    the allegations. He explained that his preparation included reviewing
    disclosure and the appellants emails detailing his position.

[28]

Trial counsel explained that he did not think
    there was any chance the appellant would be discharged at the preliminary
    inquiry. As a result, he approached the preliminary inquiry as an attempt to
    assess the complainants ability to testify. He decided not to press them on
    their evidence because he did not want to tip his hand. He did not believe
    that there was a reasonable basis for alleging collusion between the
    complainants because there was no evidence of a pending civil claim or that the
    complainants had discussed their evidence in detail. He did, however, challenge
    the similar fact application. He felt that his submissions in that regard were
    sufficient and that the trial judge would apply the law as required.

[29]

After discovering the Waterhouses, trial counsel
    decided not to call them at trial because they were not present when the
    assaults were alleged to have happened and they had received no complaints. He
    was concerned that the Waterhouses would contradict the appellants evidence
    that he was never alone with the children. He had the same concerns with the Pothars
    and in any event, considered them to be minor witnesses.

[30]

With respect to the complainants evidence,
    trial counsel thought he could undermine E.E. and D.P. through their long
    records for crimes of dishonesty. For F.D., he would argue F.D.s bad hygiene
    was such that no one could possibly want to sexually abuse a teenager who
    regularly wet and soiled himself.

[31]

Trial counsel maintained that he had properly
    prepared the appellant for his testimony. He acknowledged that it only occurred
    when the appellant was at court for the trial, but explained what was involved
    and gave illustrations as to the process that he followed. He maintained that
    it was not limited to five minutes and was adequate.

[32]

In cross-examination, trial counsel acknowledged
    that, prior to the preliminary inquiry, he had not met the appellant, nor did
    he have a substantive discussion  [or] a personal conversation with him.

[33]

However, trial counsel maintained that, from
    their very first meeting at the courthouse, he was preparing the appellant to
    testify. Those meetings occurred before court and during breaks at every stage
    of the proceeding.

[34]

Although trial counsel acknowledged that a
    preliminary inquiry is an opportunity to lay the groundwork to impeach witnesses
    at trial, he conceded that he conducted very little cross-examination of the
    complainants.

[35]

It was put to trial counsel that, during his
    cross-examination of E.E. at the preliminary inquiry, he had asked E.E. almost
    no questions about his single allegation and no questions about the appellants
    house where the alleged assault occurred. In addition, although he acknowledged
    that E.E.s disclosure to his Childrens Aid worker about the assault was a
    very important fact, he never asked for the details of what E.E. told his care
    worker. Trial counsel justified his failure to pursue these lines of
    questioning by pointing out that E.E. was almost bang on with respect to the
    details. Trial counsel thought that there was a risk that maybe something had
    been recorded by [E.E.s Childrens Aid worker] and its another gold for the
    Crown. In addition, trial counsel did not cross-examine E.E. on information in
    the police statements to the effect that E.E. and D.P. had discussed killing
    the appellant, and that D.P. seemed to think that the appellant had sodomized
    E.E.

[36]

As for the cross-examination of D.P. at the
    preliminary inquiry, trial counsel had asked D.P. whether he spoke with anyone
    about the allegations but, when D.P. answered that he had spoken with E.E.,
    trial counsel simply moved on. When asked to explain why he had not explored
    this further, trial counsel responded that he could have if he had made that
    decision tactically, strategically.

[37]

Trial counsel was also asked regarding his
    cross-examination of F.D. at the preliminary inquiry. That cross-examination
    was equally brief and trial counsel did not probe F.D.s statement to police,
    including F.D.s statement that he called out to E.E. during an assault to
    start some crap in the house. In addition, trial counsel did not seek to
    clarify F.D.s evidence that he and D.P. disagreed about room arrangements.
    Trial counsel explained that he viewed room arrangements and what F.D. may have
    called out as peripheral.

[38]

In essence, trial counsels view was that
    cross-examination of the complainants on the details of the assaults was
    unnecessary. Details were peripheral and any inconsistencies in their evidence
    would be viewed as having little value due to the dated nature of the
    allegations and the youth of the complainants at the time.

ISSUES

[39]

On the conviction appeal there is only one issue:
    did trial counsels ineffective assistance result in a miscarriage of justice?

[40]

The appellant also seeks leave to appeal his
    sentence.

ANALYSIS

The Law

[41]

It is well-established that a represented
    accused is entitled to receive effective assistance. This right flows, in part,
    from ss. 7 and 11(d) of the
Canadian Charter of Rights and Freedoms
:
R.
    v. G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R 520, at para. 24. To succeed on the
    ground of ineffective assistance of counsel, the appellant must show that trial
    counsels assistance was so ineffective that the appellants conviction is the
    product of a miscarriage of justice:
R. v. Joanisse
(1995), 102 C.C.C.
    (3d) 35 (Ont. C.A.), at p. 57, leave to appeal refused, [1996] S.C.C.A. No. 347.
    Counsels conduct can result in a miscarriage of justice either by rendering
    the trial unfair, referred to as the procedural fairness branch, or by
    rendering the verdict unreliable, referred to as the unreliable verdict branch:
R. v. Fiorilli
, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 54.

[42]

Regardless of the nature of the ineffective
    assistance or the resulting analytical route, appellants alleging ineffective
    assistance of counsel must establish three elements. First, they must prove the
    contested facts underpinning their allegation on a balance of probabilities.
    Second, they must demonstrate that trial counsels acts or omissions amounted
    to incompetence. Third, they must show that trial counsels ineffective
    performance led to a prejudice in the form of a miscarriage of justice:
R.
    v. Archer
(2005), 203 O.A.C. 56 (C.A.), at para. 119.

[43]

Appellate courts measure trial counsels
    competence against a standard of reasonableness. The carriage of a defence at
    trial involves innumerable decisions that no two lawyers will navigate in the
    same way. In light of the wide range of options open to counsel, reviewing
    courts presume trial counsel to have acted competently and review counsels
    assistance deferentially without the distortion of hindsight:
Joanisse
,
    at p. 61. As Doherty J.A. explained, [m]any decisions made by counsel at trial
    will come to be seen as erroneous in the cold light of a conviction:
Archer
,
    at para. 119.

[44]

Where the verdicts reliability is at issue,
    appellants must demonstrate that, had they received effective assistance, there
    is a reasonable probability
[2]
that the result of the proceeding would have been different:
Joanisse
at p. 64, citing
Strickland v. Washington
, 104 S. Ct.
    2052 (1984) at p. 2068. A reasonable probability, lying somewhere between a
    mere possibility and a likelihood, satisfies the reviewing court that the
    verdict at issue cannot be taken as a reliable assessment of the appellants
    culpability:
Joanisse
,
at p. 64.

[45]

The Supreme Court of Canada has opined that the
    ineffective assistance analysis should normally begin with the prejudice
    component. If it is appropriate to dispose of an ineffectiveness claim on the
    ground of no prejudice having occurred, that is the course to follow:
G.D.B.
,
    at para. 29.

[46]

However, notwithstanding the relatively
    well-settled parameters guiding ineffective assistance claims, determining
    whether trial counsels assistance resulted in a prejudice is an intensely
    factual enquiry:
R. v. Belcourt
, 2020 SKCA 73, 389 C.C.C. (3d) 303, at
    para. 76.

[47]

In order to show that a verdict is unreliable,
    the ineffective assistance needs to go to one or more of the central issues at
    trial. Even severe instances of incompetence going to collateral facts will not
    necessarily undermine the courts confidence in the result below.

[48]

By way of example,
R. v. M.B.
, 2009
    ONCA 524, 251 O.A.C. 81, is a case where the ineffective assistance undermined
    the confidence in the verdict. In that case, the central issue was credibility.
    The court found that trial counsels incompetence bolstered the complainants
    credibility while reducing that of the appellant. Had trial counsel acted
    competently, the complainant would have been cross-examined on prior
    inconsistent statements. This could have marred her credibility on which the appellants
    conviction depended. However, in
R. v. Aulakh
, 2012 BCCA 340, 205
    C.C.C. (3d) 315, the court determined that the appellant had not shown a miscarriage
    of justice. The alleged ineffective assistance was trial counsels failure to
    argue that another individual had the opportunity to sexually assault the
    complainant. The court dismissed the appeal, concluding that the evidence
    alluding to an opportunity for someone else did not nullify the other evidence
    incriminating the appellant.

[49]

Consequently, the impact of ineffective
    assistance on the reliability of the verdict depends on its severity and its
    proximity to the issue or issues at the root of a conviction. The appellant
    will not establish a miscarriage of justice unless they can inject doubt into
    the facts supporting the verdict. They must do so through probative evidence of
    sufficient persuasive weight to dislodge a verdicts foundation. Put simply,
    the ineffective assistance of trial counsel will not disclose a reasonable
    probability that the result at trial would have been different unless the
    ineffective assistance threatens a pillar supporting that result.

Was Counsels Assistance Ineffective?

[50]

This case is somewhat unusual in that the Crown
    has conceded that the performance branch of the test has been made out.
    Specifically, the Crown concedes that trial counsel provided ineffective
    assistance in that he:

(a)

did not pursue in depth the nature and extent of
    the communications between the complainants as a precursor to an examination of
    any possible collusion;

(b)

did not pursue the issue of the appellants opportunity to commit
    the offences alleged to have occurred at bedtime;

(c)

did not challenge the complainants inconsistencies between their
    police statements, their preliminary inquiry evidence, and their trial
    evidence; and

(d)

did not challenge the complainants on their memories despite the historical
    nature of the allegations.

[51]

The Crown accepts that, on the facts of this
    case and given the appellants decision not to plead guilty, trial counsel had
    to meaningfully pursue at least some of these issues, but he did not do so.

[52]

Therefore, it is not necessary to closely follow
    the Supreme Courts guidance that the prejudice component should come before
    performance:
G.D.B.
, at para. 29. Both parties agree that, with
    respect to the above grounds, the performance component is met.

[53]

The appellant has advanced a number of
    additional allegations of ineffective assistance. The Crown maintains that, for
    all of these, the appellant has not shown that trial counsels assistance was
    ineffective. With one exception, I agree. The one exception is with respect to
    trial counsels preparation for trial and preparation of the appellant for his
    testimony. I have concluded that the appellant has established ineffective
    assistance in this area.

[54]

Trial counsels dockets reveal that he spent
    very few hours preparing for trial. In the seven months immediately preceding
    trial, trial counsel recorded decimal four hours to review file and update
    and decimal three hours to prepare for assignment court. Trial counsel
    admitted that he had no substantive discussion with the appellant in the 14
    months between the preliminary inquiry and the trial. Although trial counsel
    indicated that he spent some time preparing the appellant for his testimony, he
    acknowledged that he did so only during the breaks at court during the trial
    and before he was to testify. The extent of that preparation is inconsistent with
    the evidence of the appellant and his niece, who claim that the full extent of trial
    counsels preparation of the appellant prior to his giving evidence was a short
    meeting held during the lunch break just before the appellant testified.

[55]

With respect to the extent of the appellants
    preparation prior to his testimony, I prefer the evidence of the appellant as
    corroborated by his niece to that of trial counsel. I am also of the view that
    the appellants failures in the witness box are the kind of problems that could
    well have been avoided with proper preparation. In particular, as I will
    explain, if trial counsel had adequately prepared for trial and prepared the
    appellant to give evidence, trial counsel would have understood the
    significance of the timing of E.E.s visit to the appellants home and would
    have reviewed the timing and the circumstances surrounding that visit with the
    appellant prior to his testimony.

Is the conviction the product of a miscarriage
    of justice?

[56]

The Crowns main submission is that, even though
    ineffective assistance of counsel has been established, the appellant has not met
    his onus of showing that there is a reasonable probability that, had there been
    effective assistance, the verdict would have been different. In the Crowns
    view, this is because of the unlikelihood that adequate performance in the
    areas of ineffective assistance would have had any significant impact on the
    evidence incriminating the appellant.

[57]

The Crown argues that, even if there had been
    effective assistance of counsel, the similar fact evidence application would
    have been allowed. Absent collusion, there was simply no basis for denying the
    application. Once the similar fact application is allowed, the Crowns case is
    overwhelming.

[58]

In its factum, the Crown listed ten considerations
    that undermined any suggestion that the similar fact application could be
    undermined by the possibility of collusion:

a.

At its core, this prosecution did not commence because
    of the actions of the complainants, but because D.P.s probation officer
    decided to report the abuse without D.P.s knowledge;

b.

Trial counsel did question the complainants to
    some extent about their contact with one another. The complainants did not try
    to hide their contact. Their reports of the extent of their contact is mostly
    consistent as between their police statements, preliminary inquiry evidence and
    trial evidence;

c.

D.P. testified that he told E.E. about the
    allegations in 2011, yet no police report was made at that time;

d.

It is apparent from F.Ds statement that he and
    E.E. spoke about the allegations
after
E.E. gave his statement to
    police;

e.

All of the complainants testified that there was
    nothing else about their childhood interactions with the Appellant that caused
    them to dislike him. The Appellant confirmed he was not involved in
    disciplining the children, and there was some evidence that F.D. and D.P.
    discussed the abuse of D.P. as children;

f.

There was no reason that the complainants would
    have suddenly colluded some 30 years after the events, when they had either no,
    or limited, contact with the Appellant in the intervening years. F.D. and D.P.
    denied an intention to sue for monetary compensation for the abuse, and trial
    counsel confirmed there was no outstanding civil claim;

g.

If the complainants had concocted the
    allegations, they would likely have described more egregious and frequent abuse
    than the limited touching they alleged;

h.

D.P. described one event, the act of fellatio in
    the clearing, which was dramatically different than all other allegations,
    which would have been unlikely had the three colluded together;

i.

The complainants found it difficult to talk
    about the events; and

j.

The Appellant corroborated much of the
    complainants evidence, including that he gave them back rubs at bedtime.
    [Emphasis in original.]

[59]

Contrary to the Crowns submission, I consider
    the ineffective assistance of counsel in this case and its impact on the trial to
    be so significant as to require a new trial. From my review of the record in
    its entirety and, in particular, the affidavit and cross-examination of trial
    counsel, it is apparent that trial counsel proposed to defend this case on the
    narrow basis of the appellants denial and by pointing out that the
    complainants lacked credibility because of their criminal records and addictions.
    There was no real effort to test the complainants reliability and credibility,
    and little attempt at exploring the potential of collusion to undermine or weaken
    the Crowns similar fact evidence application or its potential impact. The
    Crown effectively concedes that, because of this failure to adequately test the
    evidence tendered at the preliminary inquiry and at trial, trial counsel
    afforded ineffective assistance to the appellant. As I have explained, I am also
    of the view that the failure to adequately prepare for trial and prepare the
    appellant for his testimony are additional areas of ineffective assistance.

[60]

In order to assess its impact, the various
    aspects of the ineffective assistance must be viewed as a whole. The impact of
    each area of ineffective assistance is compounded when combined with other
    aspects of the ineffectiveness assistance. The overall result is that, had the
    appellant received competent legal representation, there is a reasonable
    probability that the appellant would not have been convicted.

[61]

In the following sections, I will first address
    how the ineffective assistance impacted the allegations made by E.E. I will
    then outline how the ineffective assistance of counsel undermines the analysis carried
    out by the trial judge in his reasons for conviction. Finally, I will respond
    to the Crowns submission to the effect that the similar fact application would
    have succeeded in any event and that this made the Crowns case against the
    appellant overwhelming.

(a)

E.E.s Allegations

[62]

E.E.s allegation of assault is limited to one
    incident said to have occurred at the appellants home where the appellant and
    his new spouse had recently moved.

[63]

In his statement to police, E.E. described the
    assault and confirmed that it occurred when he went to the appellants home,
    although he does not remember why he went. He stated that, at the time, the
    appellant did not work at the group home because after he got married, he uh,
    I, think he quit working at the Crossroads  [h]e just  uh  he just got
    married and him and his wife moved to that house.

[64]

As for when he went to stay at the appellants
    home, he said that it would have been during his first stay at Crossroads. The
    Crossroads records show that E.E. resided there three times. The first was from
    February 28, 1983 to June 27, 1984 when he returned to live with his mother. He
    returned to Crossroads about three weeks later, staying until October 15, 1984.
    His final stay was from January 11, 1985 to January 30, 1985.

[65]

E.E. remembered the assault occurring over his
    first stay because he told my uh, Childrens Aid worker, um, about that.
    However, the Childrens Aid worker never reported E.E.s allegations, likely
    because, when they arrived at the Crossroads, they discovered that one of the
    residents had tragically murdered another.

[66]

According to his police statement, E.E. went to bed
    past 9:00 p.m. on the day of the assault. He explained that he remembered the
    time because it was summertime and getting dark outside. He stated that the
    assault occurred when the appellant came to tuck him in for the night. He
    further testified that, soon after the alleged assault, he left the Crossroads
    to try living with his family. It did not work out and E.E. was back at the
    Crossroads in a matter of weeks. He testified that he told his Childrens Aid
    worker about the assault while the care worker drove him from Toronto back to
    the group home for his second stay there, and proffered the murder at the
    Crossroads that he says occurred that day as an explanation as to why the care
    worker did not report the abuse.

[67]

At the preliminary inquiry, E.E. gave similar
    evidence. He testified to the assault having occurred when the appellant
    invited him to his house for the weekend. E.E. explained that a few weeks
    passed between the assault and the murder.

[68]

He gave a slightly different version at trial,
    stating that it would have been quite a few months between the assault and
    the disclosure to his Childrens Aid worker [c]ause I had left in June. I
    came back a few weeks later. He drove me up and thats when I, when I mentioned
    that to him. It is undisputed that the murder he refers to occurred in July of
    1984.

[69]

E.E.s trial evidence impressed the trial judge
    in that he was able to remember a good deal of detail from his time at
    Crossroads. He was, for example, able to recall the names of many of his fellow
    residents. He also had a clear recollection of the day of the alleged assault.
    He explained that he had been invited to the appellants house for the weekend.
    He described that the house had grass out front. He remembered that the
    appellants wife made them hamburgers for dinner. E.E. also testified to having
    told his Childrens Aid worker of the assault as they drove to the home. When
    they reached the home the murder investigation was underway.

[70]

Trial counsel cross-examined E.E. both at the
    preliminary hearing and at trial. In his cross-examination at trial, trial
    counsel suggested that E.E. had in fact never divulged the assault to his
    Childrens Aid worker. He also suggested that E.E. went to the appellants home
    in the summer of 1985, not the spring of 1984. Trial counsel then changed tack and
    suggested that E.E. was at the appellants home in February or March of 1985.
    Although, at some point, E.E. appears to agree with this suggestion, he
    clarifies in re-examination that the assault occurred before the July 1984
    murder.

[71]

The appellants evidence as to the events is
    quite different. The appellant confirmed that E.E. came to stay at his home
    although the timeframe and context for the visit are totally inconsistent with
    E.E.s evidence. According to the appellant, E.E. had already left the group
    home and was coming back to visit. The appellant and his wife hosted E.E. for a
    night as a favour to the Waterhouses before driving him to the Crossroads.

[72]

The appellant testified that he picked up E.E.
    at the bus stop in Bancroft in early 1985. The appellant had no clear
    recollection as to why the Waterhouses asked him to pick up E.E. and thought
    that it must have been because of a snowstorm. He recalled the road being
    freshly plowed the next morning when he drove E.E. to Crossroads. The appellant
    denied that E.E. was there because he had been invited for a weekend visit.

[73]

In the Crowns cross-examination of the
    appellant, the Crown suggested that the visit described by E.E. happened in
    1984, and not in the winter of 1985 as testified to by the appellant. The Crown
    suggested it made no sense for E.E. to return in February or March of 1985 for
    a visit when he had left Crossroads at the end of January.

[74]

Trial counsel chose not to re-examine the
    appellant.

[75]

However, there was other evidence that would
    have provided support for the appellants timeline. The appellant filed as
    fresh evidence an affidavit to which he attached his email to trial counsel
    dated November 9, 2015 in which he explained that E.E.s allegation could not
    have occurred as alleged because I also was not living at the address where
    the one claim is supposedly to have happened [
sic
]. Did not move in
    there until November 1
st
, 1984. This information concerning the
    date of the move was later repeated in a second document appended to his
    affidavit entitled MY LIFE TIMELINE that was also sent to trial counsel in
    advance of trial. Although the appellant was cross-examined on his fresh evidence
    affidavit , no issue was taken with the accuracy of the information he had
    conveyed to his trial counsel.

[76]

In my view, if trial counsel had adequately
    prepared for trial, he would have understood the significance of the
    information the appellant had provided to him in emails. Similarly, if trial
    counsel had adequately prepared the appellant for his testimony, he would have understood
    why the appellant placed E.E.s visit in the winter of 1985. He would have
    brought out the fact that the appellants wedding was in September 1984 and that
    he moved into his new home, the home where the alleged assault occurred, in
    November of 1984. This evidence ought to have been elicited during the
    appellants examination-in-chief but, in any event, could have been brought out
    in re-examination. It would, through verifiable facts, explain why the
    appellant disagreed with the Crowns suggestion that the visit was in 1984 and
    insisted it was much later.

[77]

These facts would have undermined E.E.s credibility
    and reliability. His testimony as to the timing and his explanation of the series
    of events cannot be reconciled with the fact that the house where the alleged assault
    is said to have occurred was not acquired until November of 1984. The
    information also made E.E.s description of attending at the appellants home,
    including the presence of grass out front and the fact that he went to bed past
    9:00 p.m. because it was summertime and getting dark, improbable.

[78]

Significantly, the information regarding the
    appellants marriage and home purchase would have made it impossible for E.E.
    to have told his Childrens Aid worker about the alleged assault before the
    July 1984 murder. This has broad implications as E.E.s disclosure to his
    Childrens Aid worker and the subsequent murder anchor his timeline throughout
    his evidence. In his police statement, he relies on the murder to place the
    assault as having occurred during his first stay at the Crossroads. At the
    preliminary inquiry, E.E. proffers the murder to explain his Childrens Aid
    workers failure to report the abuse. In his re-examination at trial, E.E.
    again uses the murder as a reference point to surmise that the assault occurred
    in early 1984.

[79]

If, as alleged, the assault happened in the home
    acquired by the appellant and his wife, it would have occurred after November
    1, 1984. E.E.s disclosure to his Childrens Aid worker and his entire timeline
    therefore falls into doubt. It also leaves the court with no explanation as to
    why nothing was done by Childrens Aid to follow up on E.E.s report of the
    assault, assuming that E.E. was not lying or mistaken about having reported the
    assault to his Childrens Aid worker.

[80]

More importantly, this evidence would have given
    support to the appellants testimony that the visit occurred in winter, that he
    may have been asked to drive E.E. because of a snowstorm, and that the visit
    occurred after E.E. had left Crossroads.

[81]

Trial counsel appears to have understood that
    the appellant disagreed with E.E.s timing of the visit. During his
    cross-examination of E.E., trial counsel suggested that E.E. never divulged
    these allegations to his Childrens Aid worker because the visit to the
    appellants home occurred in 1985, not in 1984. However, trial counsel did not
    lead the critical evidence as to the dates of the appellants wedding and move
    to his home that would, if accepted, have shown that E.E.s description of the
    home, report to his Childrens Aid worker and the timing were all wrong. This
    failure allowed E.E.s testimony to stand challenged only by the appellants
    unsupported statement to the contrary.

[82]

Once the trial judge accepted E.E.s timing, he
    then used it as a basis to reject the appellants evidence. Indeed, the timing
    of E.E.s visit is one of two glaring inconsistencies that the trial judge
    used to dismiss the appellants denial.

[83]

The appellant has presented evidence of
    sufficient persuasive weight that, if it had been presented at trial, would
    have bolstered the appellants credibility while reducing E.E.s. The failure
    to present it constituted ineffective assistance, and is significant because
    this case rested predominantly on credibility. The trial judges acceptance of
    E.E.s evidence and his rejection of the appellants were central to his conclusion.
    Therefore, had the appellant received effective assistance of counsel, these
    pillars would have been significantly undermined, and there is a reasonable probability
    that the result at trial would have been different.

(b)

Impact on the Trial Judges Reasons

[84]

The impact of the ineffective assistance of
    counsel went well beyond the failure to lead evidence that would have
    undermined E.E.s testimony and reinforced the appellants testimony as to the
    timing and circumstances surrounding E.E.s visit to the appellants home. As I
    will explain, several aspects of the trial judges reasons for conviction are
    significantly undermined when the fresh evidence tendered in support of
    ineffective assistance of counsel is taken into account.

(i)

Acceptance of the Complainants Evidence

[85]

The trial judge accepted the evidence of the
    three complainants. He did so remarking that he had no indication that their
    testimony was inconsistent with things they may have said about the same events
    on earlier occasions.

[86]

However, as conceded by the Crown on appeal,
    there were inconsistencies between the complainants evidence at trial and what
    they said at the preliminary inquiry and in their police statements. Trial
    counsels failure to challenge the complainants with these inconsistencies is
    one of the conceded areas of ineffective assistance of counsel. In fact, trial
    counsel had not even obtained a transcript of the preliminary inquiry evidence
    from which he could draw some of the inconsistencies. In addition, because
    trial counsel failed to carry out sustained cross-examinations of the
    complainants at the preliminary inquiry, he had not pinned down details of the
    complainants allegations, and the opportunity to create additional
    inconsistencies was thereby lost.

[87]

It is impossible for this court to assess the
    impact a proper cross-examination of the complainants would have had, or how
    they would have responded when confronted with their inconsistencies. Nor do we
    know how that might or might not affect the trial judges assessment of their
    credibility. What is clear, however, is that the trial judge could not have
    used the absence of inconsistencies as a basis for finding them credible.

[88]

In addition to noting the absence of
    inconsistencies, the trial judge found the complainants credible given their ability
    to relate peculiar little details. He found this to be particularly
    compelling.

[89]

With respect to F.D., a compelling detail was that,
    following a particular assault, F.D. remembered running to the bathroom and
    hiding his underwear by burying it in the trash can. This compelling detail,
    however, is one of the inconsistencies on which trial counsel did not
    cross-examine. In his police statement, F.D. stated that he had thrown the
    underwear in the kitchen garbage the next morning, not in the washroom
    following the assault as he alleged at trial.

[90]

The particularly compelling features of E.E.s
    testimony noted by the trial judge were that, when he went to the appellants
    home, there was grass on the lawn and E.E.s wife made hamburgers for dinner.
    As I have explained earlier, had the evidence as to when the appellant was married
    and moved to his home been presented, it would have been clear that, if the
    alleged assault occurred in the appellants home, it could not have occurred in
    the summer with grass on the lawn. Instead, E.E.s visit likely occurred in the
    winter as testified to by the appellant.

[91]

The trial judge indicated that he did not put
    much stock in the demeanour of various witnesses. However, he noted that although
    D.P. sometimes got a little argumentative with defence counsel, he did not
    overstate his evidence nor come across as having particularly vitriolic
    feelings towards [the appellant]. The trial judge may well have taken a different
    view of D.P.s demeanor and its significance if trial counsel had
    cross-examined D.P. using his police statement. In the statement, D.P. related
    a discussion with E.E. where they spoke of making the appellant disappear.

[92]

In addition, trial counsel could have referred
    to what D.P. said in his police statement regarding E.E.s vitriolic feelings
    towards the appellant. D.P. described E.E.s reaction to the mention of the
    appellant as all this venom coming out of his mouth.

[93]

It is apparent, therefore, that several of the
    bases the trial judge gave for his acceptance of the complainants evidence would
    have been absent but for the ineffective assistance.

(ii)

Collusion

[94]

In the portion of the trial judges reasons
    dealing with potential collusion, he acknowledges that there were conversations
    among the three complainants, but explains that he is not persuaded that their
    discussions progressed beyond very general comments. For example, the trial
    judge refers to the evidence of F.D. that he simply admitted to E.E. that [the
    appellant] had touched him. The trial judge also referred to D.P.s
    testimony to the effect that E.E. would not tell him the details of what
    happened to him, nor did D.P. share details about incidents he experienced. Finally,
    the trial judge referenced E.E.s testimony to the effect that he had denied
    having spoken to F.D. about any incidents involving the appellant.

[95]

As a result, the trial judge concluded that the
    possibility of collusion affects the weight of the complainants evidence very
    little.

[96]

The trial judges view may well have been
    different if, in the course of cross-examination, trial counsel had put the
    various statements they made to police to the complainants. In particular, F.D.s
    statement suggests that E.E. broached the subject of the appellant and
    persisted in finding out what he did to F.D. F.D. references his discussion
    with E.E. wherein F.D. states that I had told [E.E.] what [the appellant] had
    done to me while I was in the Highland Crossroads. Later in the police statement
    he says that I basically told [E.E.] what [the appellant] had done. Basically,
    you know, the way he would start and the way he would usually finish off things
    when tucking me in for bed. F.D. states that he did not get into specifics
    with E.E., just that [the appellant] had rubbed my, my penis. As for E.E.s
    response, F.D. indicates that like when I told him about mine, he told me its
    along the same lines, only mines a little bit worse. This suggests that the
    discussions between E.E. and F.D. progressed well beyond very general
    comments.

[97]

While less specific, it also appears there were
    discussions between E.E. and D.P. In D.P.s police statement, he states that
    E.E. proceeded to tell me what happened with him and I told him what
    happened to me.

[98]

On the issue of collusion, it was also open to
    trial counsel to cross-examine D.P. and E.E. on possible animus. In his police
    statement, D.P. says that they had discussed the possibility of dealing with
    the appellant themselves, and just making him disappear. He adds that E.E.
    wanted to kill the appellant. The existence of animus and its potential
    impact on an allegation of collusion was not explored.

[99]

As the Crown concedes, it was unreasonable for
    trial counsel not to have pursued the nature and extent of the communications
    between the complainants in depth as a precursor to an examination of possible
    collusion. It was also unreasonable not to challenge the complainants on
    inconsistencies among their police statements, their preliminary inquiry
    evidence and their trial evidence. I view the failure to explore the details of
    the allegations and of the complainants discussions with each other to be a serious
    failure. It leaves the vulnerabilities in the evidence leading to the
    appellants conviction completely untested.

[100]

Where there are multiple complainants, evidence of collusion will
    make the Crowns similar fact application less likely to succeed:
R. v.
    Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 110, and, where it does
    succeed, it can reduce the weight to be given to the evidence:
Handy
,
    at para. 112;
R. v. J.W.
, 2013 ONCA 89, 302 O.A.C. 205, at para. 36,
    leave to appeal refused, [2013] S.C.C.A. No. 288.

(iii)

Late Disclosure

[101]

The trial judge discounted the fact that there had been late
    disclosure of the alleged assaults. He indicated that he put virtually no
    weight on the absence of disclosure for several decades for two main reasons.
    The first is the generally accepted view that the reaction to having been
    sexually assaulted varies and disclosure can come about in a myriad of
    different ways. The second of the reasons, however, was case specific. He
    accepted E.E.s evidence that he had told his Childrens Aid worker of the
    assault and that it was only due to the July 1984 murder of a resident of
    Crossroads that no follow up to that disclosure occurred.

[102]

As I have explained, had trial counsel properly presented the
    evidence of the appellants marriage and move to his new home in November 1984,
    it is unlikely that E.E.s explanation would have been accepted by the trial
    judge.

(iv)

The Appellants Evidence

[103]

The appellant elected to testify in his own defence. The trial judge
    rejected his evidence by focusing on two glaring inconsistencies that caused
    him significant concern. First, he found that the appellant had minimized his
    involvement with the children at the home. The appellant argues that trial
    counsel ought to have called the Waterhouses to testify in support of his
    position that he had little opportunity to carry out the alleged assaults and, in
    particular, the numerous alleged assaults on F.D. In addition, the appellant submits
    that trial counsel ought to have discovered the Pothars prior to trial as they
    may also have been able to provide additional support for his allegation that
    he had limited contact with the residents and, therefore, limited opportunity
    to commit these offences. The appellant further argues that trial counsel could
    have led evidence of a partial alibi in that, for part of the relevant period, he
    had been working at the Graphite Bible Camp. This would provide support for the
    appellants contention that he had little involvement with the complainants
    during the period the assaults are said to have happened.

[104]

I agree with the Crowns response to this issue. The evidence
    regarding the appellants employment at the Graphite Camp is unclear and it is
    not apparent that it would assist in establishing that the appellant had limited
    opportunity to commit the offences. The fresh evidence tendered by the
    appellant does not provide a solid basis to suggest otherwise, nor does it show
    that the Waterhouses or Pothars would support the appellants testimony. Although
    I accept that adequate preparation of the appellant prior to his giving his
    evidence would likely have assisted him in testifying in a clearer and more
    balanced manner, it is not at all clear that it would have alleviated the trial
    judges concern.

[105]

The second aspect of the appellants testimony that caused the trial
    judge concern was his description of how E.E. came to spend the night at his
    home. The appellant testified that E.E.s visit occurred when E.E. returned in
    the winter and there may have been a snowstorm. The trial judge found this evidence
    simply incapable of belief. As I have explained earlier, had trial counsel
    properly prepared the appellant for his testimony, and had he elicited the
    evidence to the effect that E.E.s stay at the appellants home could not have
    occurred in the summer as alleged by E.E., this basis for rejecting the
    appellants evidence would likely not have been available.

(c)

The Impact of the Crowns Similar Fact
    Application

[106]

As noted earlier, the Crown argues that, even if trial counsel had
    provided effective assistance, there was little evidence of collusion and the
    Crowns similar fact application would inevitably have been allowed, obviating any
    chance of an acquittal. I disagree.

[107]

In allowing the Crowns similar fact application, the trial judge found
    that the circumstance[s] of the alleged offences are so significantly similar
    that, absent collusion among the complainants, the improbability of coincidence
    is very high and it makes the evidence highly probative in terms of whether
    [the appellant] had the specific propensity described by the Crown and whether
    he acted in accordance with that specific propensity on the occasions in
    issue.

[108]

The fresh evidence undermines the trial judges findings in several
    ways. As I noted earlier, the Crown concedes that trial counsels assistance
    was ineffective in that he did not pursue in depth the nature and extent of
    the communication between the complainants as a precursor to an examination of
    any possible collusion. The fresh evidence has established that there were
    opportunities for collusion that were not raised in cross-examination. Therefore,
    but for the ineffective assistance of trial counsel, the extent of
    communications among the complainants and the apparent inconsistencies in their
    trial evidence as compared to their preliminary inquiry evidence and police
    statements would have been explored. Evidence of collusion undermines both the
    foundation and the force of similar fact evidence:
Handy
. Consequently,
    effective assistance would, in all likelihood, have highlighted the concern for
    possible collusion, thereby weakening the Crowns similar fact application.

[109]

I acknowledge that several of the ten considerations listed by the
    Crown for rejecting the suggestion of collusion retain considerable force.
    However, many of these would likely have had less or little force had the
    appellant been properly represented. For example, because the complainants
    evidence at trial, at the preliminary inquiry, and in their police statements
    was not challenged, it is impossible to know how the complainants would have
    reacted to trial counsel raising the inconsistencies. Nor do we know what that
    cross-examination may have drawn out in terms of evidence that would undermine
    some of the points listed by the Crown.

[110]

Many of the Crowns arguments against collusion depend on the trial
    judges acceptance of the complainants testimony and his rejection of the
    appellants evidence. The fresh evidence undermines several of the bases upon
    which the trial judge assessed credibility. It is not the function of this
    court to retry the case, reassess the appellants and complainants credibility
    and reweigh the various elements of proof. However, where fresh evidence casts
    doubt on the facts supporting those findings, this court may properly question
    the reliability of the resulting conclusion.

[111]

In addition, trial counsel did not use the preliminary inquiry as an
    opportunity to probe the details of the alleged assaults and the circumstances
    surrounding those assaults. There was some evidence of differences in the
    complainants descriptions of the assaults that could have been but was not
    probed. Consequently, the appellant was left with little basis to argue that
    differences existed between the allegations such that the similar fact
    application should be rejected. The differences were admittedly of limited
    significance, but little would have been lost and potentially useful evidence
    may have been elicited if, at the preliminary inquiry stage, there had been
    further probing as to how the complainants said the assaults were carried out
    and adequate cross-examination of the complainants on the differences that were
    already apparent.

[112]

The fresh evidence also indicates that there were areas of potential
    cross-examination available so as to show that, to some extent, the appellant
    had limited opportunity to commit the alleged assaults. For example, there was
    some evidence that F.D. and D.P. shared a room for a period, which could make
    it less likely that F.D. was assaulted over 50 times given the appellants
    limited period of employment at the home. Trial counsels failure to explore
    the appellants limited opportunity amounts to another foregone chance to differentiate
    between the various allegations. This evidence could also have cast doubt on
    the number of assaults F.D. alleges occurred, which the trial judge relied on
    to enhance the probative value of the similar fact evidence.

[113]

I acknowledge that, as argued by the Crown, the appellant has not
    established that further probing at the preliminary inquiry would necessarily
    have provided additional evidence of collusion or brought to light significant differences
    in the way the assaults are said to have been carried out and the circumstances
    in which they are said to have occurred. I also accept that the potential
    benefits to the appellants defence of further probing of the complainants as
    to these matters cannot be assessed. I reject, however, the suggestion that
    trial counsels failure to provide effective assistance by not probing further
    on the issues of collusion, opportunity and details of the assaults should be
    given little or no weight. This is not a case where the appellant has failed to
    offer any evidence from which this court can infer that, because of trial
    counsels ineffective assistance, he suffered prejudice:
R. v. Davies
,
    2008 ONCA 209, 234 O.A.C. 291, at paras. 54-55.

[114]

As noted above, the record establishes that there were opportunities
    for collusion that were not raised in cross-examination. While less significant,
    as set out earlier, there was also evidence as to differences between the
    allegations and evidence suggesting that the appellant had limited opportunity
    to assault F.D. that were not explored in cross-examination. It is reasonable
    to infer that, had these matters been explored in cross-examination as they
    should have been, the evidence elicited would have impacted the Crowns similar
    fact application.

[115]

Therefore, I am not persuaded by the Crowns submission that its similar
    fact application would inevitably have been allowed and that, once allowed, it
    makes the Crowns case overwhelming. Because of trial counsels ineffective
    assistance, the appellant was left with little basis to challenge the Crowns
    similar fact application. The ineffective assistance demonstrated in this case
    affects the trial judges findings on collusion, similarity of the alleged
    assaults, and opportunity of the appellant to commit the offences, as well as
    the trial judges credibility assessments. All of this has potential impact on
    the Crowns similar fact application. In addition to these concerns, it is
    clear that, if the serious problems with E.E.s evidence as to timing were to
    result in this evidence being rejected, a critical element of the similar fact
    application would be lost.

CONCLUSION

[116]

To succeed in an appeal based on ineffective assistance of counsel,
    an appellant must show that trial counsels incompetence led to a miscarriage
    of justice. Under the unreliable verdict branch of the test for a miscarriage
    of justice, this requires showing that the appellant suffered a prejudice in
    that there is a reasonable possibility that the result at trial would have been
    different but for the ineffective assistance offered by counsel. As I have explained,
    a verdict can withstand collateral attacks. Generally, the ineffective
    assistance must impact one or more of the pillars supporting the conviction with
    sufficient force so as to show the court that the verdict rests on an uneasy
    foundation.

[117]

I have concluded that, with respect to the convictions relating to
    the assault on E.E., the appellant has established that the ineffective
    assistance of counsel he received goes directly to pillars supporting those
    convictions and that, but for that ineffective assistance, there is a
    reasonable possibility that the result at trial would have been different.
    E.E.s credibility is critical to the convictions on those counts, and the
    timeline surrounding E.E.s attendance at the appellants house and reporting
    to his Childrens Aid worker are central to E.E.s recounting of events. They
    are brought into serious doubt once the fresh evidence is admitted. E.E.s
    credibility not only anchors the appellants conviction on those counts, it
    undermines the appellants credibility and, therefore, has an impact on all
    counts.

[118]

The appellant has also shown that the trial judges reasons for
    convicting on all counts are undermined in several respects once the fresh
    evidence relating to the ineffective assistance of counsel is received and
    applied. The trial judges bases for rejecting the appellants evidence are
    significantly weakened and the reasons for accepting the evidence of each of
    the complainants is similarly impaired. There is, in my view, a reasonable
    possibility that the result at trial on the counts relating to F.D. and D.P.
    would have been different but for the ineffective assistance of counsel.

[119]

In any event, given that all the convictions rest, at least in part,
    on the trial judge having accepted the use of count to count similar fact
    evidence, I do not see how the convictions with respect to counts relating to D.P.
    and F.D. can stand if there is a reasonable possibility that the counts relating
    to E.E. may not have resulted in convictions.

[120]

As a result, I would grant the application to file fresh evidence as
    it meets the criteria set out in
R. v. Palmer
, [1980] 1 S.C.R. 759,
    allow the appeal, quash the convictions, and order a new trial on all counts.

[121]

Given that I would allow the conviction appeal, I need not address the
    appeal as to sentence.

Released: January 25, 2022 PR

Paul
    Rouleau J.A.

I agree Alexandra Hoy J.A.

I agree J.A. Thorburn J.A.





[1]
The record is inconsistent between Pothars and Pothaars. I have
    chosen to mirror the trial judge and use Pothars throughout.



[2]
Case law uses the terms probability and possibility
    interchangeably when describing the standard to be applied when considering
    whether a verdict would have been different:
R. v. Belcourt
, 2020 SKCA 73, 389 C.C.C. (3d) 303, at
    para. 53.


