



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. R.C., 2021 ONCA 582

DATE: 20210827

DOCKET: C56862

Hourigan, Zarnett and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.C.

Appellant

Anthony Moustacalis and Christen Cole, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: March 31, 2021 by video conference

On appeal from the conviction entered on January 14, 2013
    and the sentence imposed on April 5, 2013 by Justice Susan E. Healey of the Superior
    Court of Justice.

Zarnett J.A.:

A.

Introduction

[1]

The
    appellant was convicted of two counts of sexual assault, contrary to s. 271 of
    the
Criminal Code
, R.S.C. 1985, c. C-46. The complainants, L.T. and
    K.T., were friends of the appellant and his wife.

[2]

The trial
    judge imposed a custodial sentence of two years less a day for the sexual assault
    against L.T., and 60 days (to be served concurrently) for the sexual assault
    against K.T., followed by three years probation. The trial judge also made
    various ancillary orders.

[3]

The
    appellant contends that the trial judge made six errors that, alone or in
    combination, undermine the legitimacy of the conviction and entitle him to a
    new trial. He also seeks leave to admit fresh evidence, on the basis of which
    he advances a seventh ground: that he received ineffective legal assistance
    from his trial counsel.

[4]

For the
    reasons that follow, I would dismiss the conviction appeal. The trial judge did
    not make the errors asserted by the appellant. Although I would admit the fresh
    evidence, it does not establish that the performance of trial counsel fell
    below the standard of reasonableness or that a miscarriage of justice occurred.

[5]

The
    appellants factum requests a reduction of his sentence. This request was not
    pressed in oral argument. The sentence does not reflect any error in principle,
    nor is it demonstrably unfit. I would therefore refuse leave to appeal the
    sentence.

B.

Factual Context

[6]

As most of
    the appeal grounds relate to the way the trial judge analyzed and processed the
    evidence, I first summarize the circumstances of the offences according to the
    Crowns case at trial, and then the appellants version at trial of what occurred.
    I return, in more specific detail, to parts of the evidence when I analyze each
    ground of appeal.

The Crowns Case at Trial

[7]

L.T. and
    K.T. had a long friendship with the appellant and his wife, which began through
    their families when they were young, and continued even after they were adults
    with children of their own.

[8]

On Saturday, March 12, 2011, L.T. and K.T., together with K.T.s
    boyfriend M.G., K.T.s children, and L.T.s daughter, went to the home of the
    appellant, his wife, and their two children, for an overnight visit.

[9]

After
    dinner on Saturday, the appellant served drinks, while everyone danced and
    enjoyed themselves. In her evidence, L.T. described having three or four pina
    coladas and one or two shots of tequila. She said she was not drunk, but felt
    very sick and needed to lie down. Two or three hours after the drinking began,
    the appellants wife took L.T. upstairs to the master bedroom, where she
    vomited. The appellants wife undressed her, helped her change into clean sleeping
    attire, gave her Tylenol, and left her in bed to rest.

[10]

L.T. testified that she
    again became sick and vomited. The appellant and M.G. came into the bedroom to
    help. After M.G. left the bedroom, the appellant (now alone in the room with L.T.)
    undressed her and gave her two pills. The next thing L.T. recalled was someone
    having intercourse with her from behind and touching her breasts, after which
    he pulled up her pants and pulled down her shirt. She was unable to speak or
    react. She did not look behind her while this was occurring, nor see the
    persons face as he left the room. She testified that she knew it was the
    appellant, because she saw that the person leaving the room was wearing a white
    t-shirt, as the appellant had during the evening, and due to his build compared
    to M.G.s (the only other adult male in the house).

[11]

K.T. testified that
    between the end of dinner and about 11 p.m., she had two pina coladas, two or
    three shots of tequila, and some water. She was not drunk. She went into the
    family room and lay down with her boyfriend M.G. on a couch, until he left to
    go outside to smoke. While she remained on the couch, she felt someone drape a
    blanket over her and a hand kind of just caressing her breast. She did not
    open her eyes as she assumed it was M.G. She then felt hands moving up her leg
    and trying to push her pants down. She opened her eyes and saw the appellant,
    who she said was wearing a white t-shirt, sitting at the end of the couch, from
    which he quickly got up. At the time, the appellant was the only other adult in
    the room.

[12]

Everyone stayed at the
    appellants home that Saturday night, and until after dinner on Sunday. L.T.
    and K.T. testified that on Sunday morning, they told each other about what had
    occurred, and discussed it with the appellants wife until she ended the
    conversation. They stayed at the appellants home until Sunday evening, as L.T.
    and K.T. had promised their children the opportunity to go swimming at a local
    facility.

[13]

L.T.
    worked in a law office. When she told a colleague what had happened upon her
    return to work, her colleague encouraged her to make a police report. L.T. and
    K.T. were hesitant to do so because of the effect on the appellant and his
    wife, their family friends, but they subsequently did.

[14]

M.G. also testified. He
    acknowledged that he recalled certain things about the evening, but not others,
    and that his memory was affected by long-term marijuana use. He stated that at
    K.T.s request, he had gone to check on L.T., who K.T. thought had too much to
    drink. He found L.T. vomiting in the bedroom and the appellant in the room
    cleaning things up. The appellant told M.G. he did not require help. When M.G.
    left the bedroom, the appellant closed the door. M.G. denied that he had sex with
    L.T., or that he had tried to put his hands down K.T.s pants.

The Defence Case at Trial

[15]

The appellant testified
    that he regarded L.T. and K.T. as family friends, but that their relationship
    was much closer with his wife.

[16]

On Saturday evening, the
    appellant had prepared and served drinks after dinner. He believed K.T. and L.T.
    each had four pina coladas and four shots of tequila and that both were highly
    intoxicated. The party ended when K.T. and then L.T. announced they had
    urinated themselves and L.T. announced she was not feeling well and did not
    want her daughter to see her in that state.

[17]

After the appellants
    wife took L.T. to the master bedroom, the appellant was told that L.T. had
    vomited. He went upstairs to check on her and to clean up. He told M.G.  who was
    watching, not assisting  to get out, closed the door to protect L.T.s dignity
    and so the children would not see her, gave her Tylenol, and helped L.T. out of
    her shirt and into a clean top from the bedside drawer. He averted his eyes
    while doing so. He explained in cross-examination that he felt comfortable
    changing her shirt as he had known L.T. for a long time and there was no one
    else to do it. He denied touching her breasts, accidentally or otherwise.

[18]

The appellant testified
    that after cleaning up, he went downstairs, and briefly sat on the couch where
    K.T. was laying down. He moved because K.T. was twitching and sleep talking. He
    considered this ridiculous and K.T. weird, so he moved to sit on the floor
    to watch a movie with the children. He denied putting a blanket on K.T. or
    touching her inappropriately.

[19]

The appellant gave no
    evidence of what he was wearing that evening.

[20]

The appellant testified
    that the visit continued until after dinner on Sunday. He recalled nothing
    unusual having occurred that day and was disappointed that L.T. had not
    apologized to him. He said she kissed him goodbye on the cheek when they left.
    He initially denied he had any conversation with his wife on Sunday about the
    previous night, but in cross-examination recalled that she told him that L.T.
    and K.T. had felt violated and might go to the police. He told his wife he had
    nothing to hide and would cross that bridge when it came. He testified that
    he did not consider this a significant conversation and that he was completely
    shocked when he later learned that L.T. and K.T. alleged that he had sexually assaulted
    them.

The Trial Judges Decision

[21]

After referring to the
    requirement that the burden of proof was on the Crown to prove each of the
    essential elements of the offences beyond a reasonable doubt, the trial judge observed
    near the outset of her reasons that two very different versions of events have
    been presented to the court during the course of this trial as to what occurred
    during the crucial hours of approximately 7:00 p.m. until approximately
    midnight on [Saturday] March 12, 2011. It has been my job to determine which is
    the more reliable of the two basic versions.

[22]

After
    reviewing the evidence, she began her analysis by noting matters that were not
    really in dispute. These included: M.G., K.T., L.T., and their children arrived
    at the appellants home on Saturday, March 12, 2011; the appellant served
    drinks after dinner; L.T. began to feel ill and was escorted to the upstairs
    bedroom by the appellants wife, who assisted her in changing her clothes and
    gave her Tylenol; M.G. and the appellant went to check on L.T.; the appellant
    remained alone in the room with L.T.; there was no evidence that M.G. was ever
    in the room alone with L.T.; K.T. was lying alone on a couch; at some point the
    appellant was also sitting on that couch until an event caused him to quickly
    move to another location; and M.G., K.T., L.T., and their children left the
    appellants home after dinner on Sunday.

[23]

The trial judge then set
    out reasons why she rejected much of the evidence of the appellant, leading her
    to conclude that she was not required to acquit the appellant under the first
    step in
R. v. W(D)
, [1991] 1 S.C.R.
    742
. Among these reasons were that the trial judge disbelieved the
    appellants portrayal of himself as an uninvolved and unwilling participant in
    the events of the weekend. She rejected the theme she found present in his
    evidence that K.T. and L.T. were repugnant to him, including his evidence that
    K.T. and L.T. had both urinated on themselves, and his testimony that he considered
    K.T. talking in her sleep while on the couch weird, ridiculous, and the
    reason he switched locations. She disbelieved his attempt to downplay his
    relationship with L.T. and K.T., which she considered to be in direct
    contradiction to his evidence that he felt comfortable changing L.T.s shirt,
    especially when there were two other women in the house who could have done so.
    She rejected his attempt to downplay the significance of a conversation with
    his wife in which she told him that L.T. and K.T. might go to the police
    because they had felt violated.

[24]

The trial judge then
    considered whether the appellants evidence, even though she had rejected substantial
    parts of it, left her with a reasonable doubt about his guilt, as contemplated
    by the second step in
W(D)
. She found that it did not.

[25]

Finally, she addressed
    the third question under
W(D)
:

whether, on the basis of the evidence that she did accept, she was
    convinced of the appellants guilt beyond a reasonable doubt. She concluded
    that she was.

[26]

The trial judge found
    that neither K.T. nor M.G. were intoxicated to the point of being unable to
    appreciate the events going on around them. Although she was more concerned
    about L.T.s level of intoxication, she found that L.T. was able to accurately
    observe and appreciate the important parts of what was occurring and that the
    person leaving the room was wearing a white t-shirt and had a different build
    than M.G. She noted that L.T. was candid as to what she could and could not
    remember, and found her testimony to be otherwise honest and reliable, noting
    that important parts of her recollection were corroborated by others, including,
    in some respects, by the appellant.

[27]

The trial judge rejected the
    suggestion that L.T. had a motive to fabricate, stating that L.T. never had an
    axe to grind with the appellant and considered him to be a friend, and that
    her hesitation in reporting to the police did not reflect a need for time to
    fabricate, but rather torment over making a decision that would affect people
    she cared about. The trial judge rejected attacks on L.T.s honesty.

[28]

The trial judge also
    accepted the evidence of K.T., who she found to be an excellent witness. The
    evidence concerning her alcohol consumption did not raise a concern about her
    ability to recollect.

[29]

The trial judge was able
    to reach her findings with very little reliance on the testimony of M.G., but
    she noted there were parts of his evidence that confirmed that of L.T. and K.T.
    Because she placed some reliance on his evidence, she considered his criminal
    record, but in light of her observations about his testimony in general, and
    the nature of the record, she considered it insufficient to entirely discount
    his evidence.

C.

Analysis

[30]

The
    appellant argues that the trial judge made six errors:

a)

she approached her task as a credibility contest;

b)

she failed to address inconsistencies in the evidence of the Crown
    witnesses and applied a different level of scrutiny to the credibility
    assessment of the Crown witnesses, as compared to the appellant;

c)

she misapprehended evidence;

d)

she placed significant weight on the absence of an apparent reason to
    lie;

e)

she rejected defence evidence based on a mischaracterization of it; and

f)

she erred in permitting the Crown to elicit details of a conversation
    between the appellant and his wife.

Issue a): The Trial Judge Did Not Treat the Case as a Credibility Contest

[31]

The appellant focuses on
    the trial judges statement, early in her reasons, that the evidence presented
    two very different versions of events and that it was her job to determine
    which is the more reliable. Although acknowledging that the trial judge cited
W(D),
he submits that the reasons do not reflect its correct application. According
    to the appellant, the trial judges statement reflects an erroneous approach of
    choosing between the appellants and the Crowns evidence, rather than deciding,
    on the basis of all of the evidence, whether a reasonable doubt as to guilt
    existed. The appellant also submits that the trial judge neglected the
    alternative that even if the appellant was not believed, his evidence may still
    have left a reasonable doubt about his guilt.

[32]

In my view, the
    appellants argument takes the trial judges statement out of context. The
    trial judge not only cited the requirement that the Crown prove its case beyond
    a reasonable doubt

before making the statement the appellant refers
    to; after making it, she reviewed the evidence and then proceeded to conduct
    the
W(D)
analysis.

[33]

The trial judge
    specifically considered whether to acquit the appellant because she believed
    him. After rejecting that alternative, and contrary to the appellants
    argument, she expressly considered whether despite rejecting parts of the
    appellants evidence, she was still left with a reasonable doubt by it. After
    concluding she was not, she continued, as required by
W(D)
,
to consider whether, on the basis of
    the evidence she did accept, the appellants guilt was proven beyond a
    reasonable doubt.

[34]

Taking the reasons as a whole,
    the trial judge did not neglect any part of the
W(D)
analysis. She did
    not proceed simply by choosing between the appellants and the Crowns
    evidence, but based her conclusion that she was not left with a reasonable
    doubt on the whole of the evidence:
R. v. C.L.Y.
, 2008 SCC 2, [2008] 1
    S.C.R. 5, at para. 8.

[35]

I would therefore reject
    this ground of appeal.

Issue b): The Trial Judge Did Not Apply Uneven Scrutiny or Ignore
    Inconsistencies in the Crown Evidence

[36]

The appellant contends
    that the trial judge applied uneven scrutiny to the evidence of the appellant
    and the evidence of the Crown witnesses. He submits that although she
    identified significant credibility problems that led her to reject the
    appellants evidence, the trial judge did not address a number of
    inconsistencies in the evidence of the Crown witnesses.

[37]


Most of the alleged unaddressed inconsistencies that the appellant relies
    on are between the evidence of M.G. on the one hand, and L.T. and K.T. on the
    other, on matters such as whether, on Sunday morning, L.T. and K.T. discussed
    what happened alone in a bathroom or whether the appellants wife was also
    present; who took the children swimming the following day; whether K.T. told M.G.
    on Saturday night what had occurred; and whether while K.T. and M.G. were
    together on the couch, they had a blanket over them.

[38]

In my view, the trial judge sufficiently addressed any
    such inconsistencies. The trial judge noted M.G.s faulty memory, did not rely
    on M.G. for the sequencing of events that evening, and reached her findings
    with very little reliance on his evidence. She was entitled to prefer the
    evidence of L.T. and K.T. to that of M.G. in the event of discrepancies. Such a
    finding attracts deference
: R. v. R.A.
, 2017 ONCA 714, 355 C.C.C. (3d) 400, at para. 44, affd 2018 SCC 13,
    [2018] 1 S.C.R. 307.

[39]

Moreover, the appellants
    complaint that the trial judge should have addressed an inconsistency between K.T.s
    evidence  that she did not tell M.G. on Saturday night what the appellant had
    done because of a concern M.G. might freak out  and M.G.s evidence  that he
    would not have freaked out  is unjustified. There is no inconsistency between
    what K.T. said her concern was, and M.G.s surmise about the way he would have
    reacted. Both can be true. In any event,
a trial
    judge is not required in the course of his or her reasons to refer to or
    resolve every inconsistency raised by the defence:
R.A.
, at para. 45.

[40]

The appellant submits
    that a difference existed between the evidence of M.G. about K.T. and L.T.s
    level of intoxication (that they were buzzed and did not have their wits
    about them), and the evidence of K.T. and L.T. that they were not drunk. The
    trial judge addressed any difference in these subjective assessments. In her
    reasons, she carefully analyzed all of the evidence, and specifically referred
    to M.G.s evidence, in reaching her conclusion about the level of intoxication
    and the effect it had on the ability of L.T. and K.T. to reliably recount the
    events in question.

[41]

Finally, the appellant
    submits that the trial judge did not accept the evidence of L.T. that the
    appellant drugged her, but still found L.T. credible. However, the trial judge
    did not rule out the possibility that L.T. had been drugged; she said there was
    insufficient evidence to make that finding. The trial judge gave detailed
    reasons for accepting L.T.s evidence on the core of her allegations as to what
    occurred. She was entitled to make that determination even though she did not
    accept L.T.s suggestion that she had been drugged.

[42]

An uneven scrutiny
    argument is a difficult one for a number of reasons, including the deference
    owed to a trial judges credibility assessments, the necessity of showing the
    trial judge actually used different standards, and the inability of an
    appellate court to reweigh and reassess evidence in the absence of a palpable
    and overriding error:
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. 294. The
    appellant has not established that the trial judge applied uneven scrutiny in
    this case.

[43]

I would reject this
    ground of appeal.

Issue c): The Trial Judge Did Not Misapprehend Evidence

[44]

The appellant argues that
    the trial judge misapprehended M.G.s evidence of what L.T. and K.T. said to
    him about what happened to them on Saturday night, and that she erred by
    failing to give effect to that evidence. He submits that this error played an
    essential part in her reasoning process, resulting in the conviction.

[45]

What the trial judge is
    alleged to have misapprehended and failed to give effect to are statements M.G.
    made at the preliminary inquiry, which were then put to him when he testified
    at trial. One statement was to the effect that it was possible that L.T. had
    asked him on Sunday who had changed her clothing the previous evening. The
    other was to the effect that K.T. had asked him whether he had touched her and
    was not a hundred percent sure it was the appellant. In substance, the
    appellant argues that the trial judge should have treated this evidence as
    adopted at trial, true, and as evidence that undermined L.T. and K.T.s credibility.

[46]

At trial, M.G. testified
    that he did not recall L.T. asking who had changed her. He also testified that
    he had no present recollection of a conversation with K.T. on Sunday in which
    she told him a sexual assault had occurred. He was confronted at trial with his
    preliminary inquiry evidence. He confirmed that he had given those answers,
    that the answers concerning the conversation with K.T. sounded correct, and that
    those with respect to the conversation with L.T. [rang] true. But in the end,
    he stated that he could neither confirm nor deny the statements he made at the
    preliminary inquiry, as he did not remember either conversation.

[47]

The trial judge expressly
    referred to M.G.s trial evidence that on Sunday, K.T. told him about something
    occurring, but that he did not have a good recollection of the conversation.
    She referred to the defence argument that his evidence contradicted statements he
    made at the preliminary inquiry and she recounted those statements. She also
    referred to M.G.s trial evidence that he did not recall L.T. asking about
    whether he had changed her clothing.

[48]

The trial judge was not
    required, as the appellant asserts, to treat the preliminary inquiry evidence
    as adopted by M.G. at trial, and thus to consider it part of his trial
    testimony for the truth of its contents. It would have been an error for her to
    have done so. A prior statement is only adopted at trial where the witness
    testifies that they made the statement and that based on their present memory,
    the statement is true
: R. v. Abdulle
, 2020 ONCA 106, 149 O.R. (3d)
    301, at para. 136, leave to appeal to S.C.C. refused, 39175 (August 20, 2020).
    That second condition was not met here.

[49]

The misapprehension of
    evidence argument is premised on M.G. having adopted his preliminary inquiry
    statements at trial. That premise is not made out. This ground of appeal
    therefore fails.

[50]

I would add that even if
    the statements had been adopted by M.G., the trial judge would not have been
    required to give them the effect for which the appellant contends, given the
    very little reliance she put on his evidence.

Issue d): The Trial Judge Did Not Give Improper Effect to the Absence of a
    Motive to Lie

[51]

The appellant argues that
    on three occasions, the trial judge referred to what was an absence of a motive
    for L.T. to lie. The trial judge referred to L.T.s evidence that she never
    had an axe to grind with the appellant, and twice to her hesitation or delay
    in reporting as the result of her torment over making a decision that would
    affect people she considered family and emotional issues with which she was
    grappling in the days following the assault.

[52]

The appellant submits
    that the trial judge improperly used these findings to buttress her finding
    that L.T. was telling the truth and shifted the onus to the appellant to
    provide a reason why she would make up the allegations.

[53]

It is well established
    that simply because a witness has no apparent reason to lie, it does not follow
    that they must be telling the truth. A trial judge is not permitted to jump
    from the former conclusion to the latter, or to use the lack of an apparent
    motive to lie in support of the credibility of the witness:
R. v. S.W.
(1994),
    18 O.R. (3d) 509 (C.A.), at pp. 16-17, leave to appeal refused, [1994] S.C.C.A.
    No. 290;
R. v. Mirzadegan
, 2019 ONCA 864, 2019 CarswellOnt 17941, at
    para. 14. However, that is not what the trial judge did in this case.

[54]

A trial judge is required
    to grapple with any defence allegation that a complainant has a motive to
    fabricate. In doing so, the trial judge may find that there was no apparent
    motive to lie, as this is responsive to the defence position. No error occurs
    in such a case if the trial judge [does] not cross the line and use this
    rejection [of the defence position] to bootstrap the credibility of the [complainant]:
R. v. P.S.
, 2019 ONCA 637, 2019 CarswellOnt 12663, at para. 59.

[55]

L.T. was cross-examined
    at trial about the delay in reporting to the police and attending the hospital
    for testing, since given her occupation she knew these steps were to be taken
    promptly. L.T.s explanation was that the cause of any delay was her friendship
    with the appellant and his family and a concern about the consequences of a
    report for them. In closing submissions at trial, counsel for the appellant
    argued that L.T.s delay in reporting and attending for testing at the hospital
    were because she knew she had no reason to go  in other words the trial judge
    was asked to reject L.T.s explanation for the delay. The trial judges
    statements about L.T.s reasons for delay in reporting are not findings of the
    lack of an apparent motive to fabricate  they are findings that L.T. was
    telling the truth about her reason for any delay in reporting; they were directly
    responsive to the position advanced by the defence.

[56]

Read in context, the
    trial judges statement that L.T. had no axe to grind is related to her other
    findings about the relationship of friendship with the appellant and his
    family, which was the basis of L.T.s explanation for the alleged delay in
    reporting the defence had raised. Even if it could be read as a finding of a
    lack of an apparent motive to lie, I would not consider it to be a finding
    improperly made given that in cross-examination questions had been put to L.T.
    that suggested she had a financial motive to lie. Nor was the finding
    improperly used. The trial judge gave extensive other reasons for believing
    L.T. and did not cross the line and use any finding of an absence of a motive
    to fabricate to bootstrap her credibility finding.

[57]

Accordingly, I would not
    give effect to this ground of appeal.

Issue e): The Trial Judge Did Not Mischaracterize the Defence Evidence as a
    Precursor to Rejecting It

[58]

The appellant complains
    of various characterizations that the trial judge gave to his evidence, which
    he argues were inaccurate or unfair. For example, he asserts that the trial
    judge inaccurately characterized his evidence as designed to portray himself
    as an unwitting and innocent participant in a weekend with women who  were
    morally and physically repugnant to him, and to have a theme  that the
    appellant found the complainants to be repulsive on that night. He argues
    that these characterizations led the trial judge to reject his testimony.

[59]

I do not accept this
    argument.

[60]

It was open to the trial
    judge to infer, from the appellants evidence, that he was saying that he
    considered the complainants to have acted in a way that was particularly
    inappropriate and extremely distasteful to him. He testified that K.T. had
    urinated on herself and found it amusing; that the party ended as there was no
    sense of [continuing] drinking if those two girls were like pissed, or
    urinating on themselves, that was disgusting; that K.T. twitching and talking
    in her sleep on the couch led him to observe that this is going to be
    ridiculous and shes weird; that M.G. told him that he should have put L.T.
    in the garage because she was puking all over the place, including on his
    mattress, which M.G. found amusing; and that L.T. had kissed him when departing
    as a way to redeem her embarrassing behaviour.

[61]

The appellant also
    complains that the trial judge was critical of his apparent attempt to portray
    himself as not close to L.T. and K.T., because the evidence was uncontested
    that the closer relationship was between them and the appellants wife. There
    is no merit to this complaint. The trial judge acknowledged the closeness of
    that latter relationship. She was entitled to view the appellants evidence as
    an attempt to portray himself as not close to L.T. and K.T. and as an attempt
    to distance himself from them, separate from any relationship that L.T. and
    K.T. shared with his wife. The appellant gave evidence that K.T. and L.T. were
    not his personal friends; that he did not really talk to them; and had no
    interaction when they previously visited. The appellant was cross-examined on
    his evidence that L.T. kissed him on the cheek when she left. When asked
    whether L.T. and K.T. regularly kissed on the cheek in greeting or farewell, the
    appellant was at pains to minimize his then-current knowledge of them both.

[62]

The trial judge gave a
    number of reasons for assessing evidence of the appellant as not credible or
    reliable. The deference owed to these assessments extends to her
    characterizations which were drawn from and rooted in the evidence. No palpable
    or overriding error is asserted or shown.

[63]

I would reject this
    ground of appeal.

Issue f): The Trial Judge Did Not Err in Allowing the Crown to Elicit
    Details of a Conversation Between the Appellant and His Wife

[64]

The appellant argues that
    the trial judge should not have permitted the Crown, during cross-examination,
    to question the appellant about a conversation he had with his wife about the
    events of the weekend, as a testimonial privilege attaches to marital
    communications. He submits that the error was exacerbated because the trial
    judge relied on the appellants evidence about the conversation.

[65]

I would reject this
    ground of appeal.

[66]

L.T. and K.T. testified
    that they told the appellants wife on Sunday what had happened. The
    appellants trial counsel asked him during his testimony in chief how Sunday
    had unfolded, including by specifically asking whether the appellants wife had
    said anything to him that day. He said no. This was consistent with the
    appellants theory at trial that the events of Sunday and the visit continuing as
    it did, were inconsistent with L.T. and K.T.s allegations.

[67]

The Crown was entitled,
    in cross-examination, to follow up on this answer. No objection was made, or
    privilege claimed, when the Crown did so, and evidence that there had been a
    conversation was elicited.

[68]

Section 4(3) of the
Canada
    Evidence Act
, R.S.C. 1985, c. C-5 provides that a spouse is not
    compellable to disclose a communication made by the other spouse during the
    marriage. This privilege  to withhold evidence of the communications  may be
    waived:
R. v. Couture
, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 41.

[69]

The question by the appellants
    trial counsel invited disclosure of the communications to the appellant by his
    wife. The combination of that question, and the appellants answer, waived any
    privilege. The appellant did not assert privilege or object to the questioning during
    cross-examination, underscoring the waiver.

[70]

The appellants argument
    that the trial judge erred in relying on the answers given in cross-examination
    is largely derivative of the argument that the evidence should not have been
    elicited, and thus falls with it.

[71]

To the extent that the
    argument that the trial judge erred in relying on the evidence has an
    independent basis, it is that, in the appellants submission, the trial judge
    used the evidence to improperly infer guilt. He relies on the proposition that an
    accuseds demeanour in reaction to criminal allegations is frequently
    unreliable. There are two difficulties with this submission.

[72]

First, we are not dealing
    here with evidence tainted by the hallmark flaws of demeanour evidence, such
    as when a witness describes their subjective impression of an accuseds mental
    or emotional state (e.g., calm or nervous) which is then offered as probative
    of guilt:
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 75-78.

[73]

Second, the trial judge assessed
    the appellants evidence about the conversation in the context of the first
    step of the
W(D
)
analysis  whether she believed the appellant.
    She commented on the lack of believability of his testimony that the
    conversation had escaped his memory because it was not significant. (As he
    recounted it, he had been told by his wife that L.T. and K.T. had woken up not
    knowing what happened, felt violated, and might go to the police). She noted
    that the appellant was downplaying the significance of the conversation because
    the appellant was trying to show he had nothing to fear and was innocent. She concluded
    that his evidence about the conversation was an attempt to emphasize a
    separation between himself and all of the events that transpired involving [K.T.
    and L.T.] during the evening of March 12, 2011,
and none of it has a ring of
    truth
 (emphasis added).

[74]

A trial judge is
    permitted to use assumptions about ordinary behaviour to assess credibility:
R.
    v. R.R.
, 2018 ABCA 287, 74 Alta. L.R. (6th) 323, at paras. 5-6;
R. v.
    F.B.P.
, 2019 ONCA 157, 2019 CarswellOnt 2802, at para. 9. She was entitled
    to consider whether it was believable that the appellant would not initially
    remember that his wife had told him that family friends, who had spent the
    night at his home, felt violated and might go to the police, or that he would
    not consider that to be a significant conversation. She was entitled to determine
    that the evidence lacked a ring of truth.

[75]

I would therefore reject
    this ground of appeal.

Issue g): The Ineffective Assistance of Counsel Ground of Appeal

[76]

The appellant seeks leave
    to introduce fresh evidence, on the basis of which he contends that he received
    ineffective assistance from his trial counsel.
[1]

[77]

An appellant who
    challenges a conviction on the basis of ineffective assistance of trial counsel
    must establish: (i) the facts on which the claim is based, on a balance of
    probabilities; (ii) that trial counsels representation was incompetent; and
    (iii) that the incompetent representation occasioned a miscarriage of justice:
R.
    v. Joanisse

(1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 38, leave
    to appeal refused, [1996] S.C.C.A. No. 347.

[78]

Incompetence is
    determined on a reasonableness standard, taking into account the particular
    circumstances of the case and point in time when counsel made the decisions
    challenged on appeal. The wisdom of hindsight has no place in this assessment.
    A deferential approach is taken to choices made by counsel, using a presumption
    of competence:
Joanisse
, at p. 41.

[79]

The requirement that the
    appellant show a miscarriage of justice addresses the question of whether,
    presuming incompetence on the part of trial counsel, the fairness of the trial
    process or the reliability of the verdict was affected. Where the allegation of
    incompetence relates to specific decisions taken by counsel (for example, the
    failure to properly challenge the Crowns case by cross-examining a specific
    Crown witness or to properly put the defence forward), the focus will be on the
    reliability of the verdict. That is, the question is whether there is a
    reasonable probability that had the specific failings not occurred, the verdict
    would have been different:
Joanisse
, at pp. 42, 45.

[80]

Trial counsel was
    retained shortly before trial. He was then in his first year of practice. The
    appellant had initially been represented by experienced counsel (his original
    counsel) through pre-trial proceedings, at his preliminary inquiry, and on an
    unsuccessful motion to stay the charges. Trial counsel had articled for the
    appellants original counsel and, while doing so, had done some work on the
    appellants case.

[81]

In late 2012, the
    relationship broke down between the appellant and his original counsel. In
    December 2012, the file was referred to trial counsel as his fees were more
    affordable. In early January 2013, the appellant signed a retainer agreement
    with trial counsel. The trial began on January 7, 2013.

[82]

Trial counsel, in his
    affidavit and on cross-examination, maintained that he provided effective
    assistance to the appellant and did not fall below the standard expected of a
    reasonably competent practitioner. An important part of trial counsels trial
    strategy was to undermine the reliability of the evidence of L.T. and K.T. by
    highlighting their intoxication, and to undermine the reliability of M.G.s
    evidence by reason of his marijuana use.

[83]

The appellant does not
    argue that it was unreasonable to pursue either of these lines of attack, and
    it cannot be said that they were without any effect. The trial judge placed
    very little reliance on the evidence of M.G., noting his memory problems due to
    his long-term marijuana use. And the trial judge had to grapple with the level
    of intoxication of K.T. and L.T. and how that affected the reliability of their
    evidence.

[84]

The essence of the appellants
    complaint is that trial counsel should have attacked the Crowns witnesses on
    additional bases and presented a better defence. He makes six specific complaints.

[85]

First, the appellant
    complains that trial counsel should have pursued an adjournment of the trial,
    as the appellants wife was in the hospital. The appellant argues that this would
    have allowed him to focus on the trial without distraction and to call his wife
    as a witness.

[86]

I do not accept this
    complaint. Trial counsel in cross-examination stated that he was expressly
    instructed by the appellant to proceed with the trial without the evidence of
    his wife, and that the appellant did not want an adjournment  he wanted to
    clear his name. The appellant has not presented any evidence to the contrary.

[87]

Nor is there any evidence
    of what the appellants wife would have said if called as a witness.
    Accordingly, the appellant has not shown a reasonable probability that the
    verdict would have been different if there was evidence from his wife.

[88]

Second, the appellant
    submits that trial counsel did not explore a defence that L.T., K.T., and M.G.
    colluded in order to undermine the relationship between the appellant and his
    wife, motivated by their desire to access her large accident settlement fund. I
    do not accept this complaint.

[89]

The appellants affidavit
    does not provide any evidence of the suggested motive to fabricate. Trial
    counsel testified that the appellant told him that the Crown witnesses had a
    motive to fabricate; based on what the appellant told him, he asked L.T. in
    cross-examination whether the appellants wife had co-signed a mortgage for
    her, which L.T. denied. He also asked L.T. whether she was aware of the
    accident settlement fund, to which L.T. responded that she was aware of an
    accident but not the compensation.

[90]

Trial counsel was not
    provided with anything that imbued the alleged motive to fabricate with an air
    of reality that would justify any other questioning. Trial counsel testified
    that he asked for the opportunity to discuss the issue with the appellants
    wife and to call her as a witness, but that the appellant did not want that to
    occur.

[91]

Nor is there anything in
    the fresh evidence that shows what any other inquiries concerning the motive to
    fabricate theory might have revealed. There is, for example, no evidence of the
    co-signed mortgage the appellant criticizes trial counsel for not uncovering.

[92]

Third, the appellant
    submits that trial counsel should have objected to the Crowns
    cross-examination of the appellant about his conversation with his wife. However,
    trial counsel explained in cross-examination that based on his preparation with
    the appellant, he asked the appellant in chief whether his wife had said
    anything to him. His purpose was to elicit that nothing was said. Since it
    would have been expected that his wife would have said something if the events
    of the weekend had unfolded as L.T. and K.T. alleged, this answer was
    consistent with the defence theory. Once he had led that evidence, trial
    counsel did not consider himself in a position to object when the Crown then
    builds on that in her cross-examination.

[93]

In my view, the criticism
    of trial counsel not objecting to the Crowns cross-examination is the product
    of hindsight, rather than a valid criticism taking into account the time at
    which the decision of trial counsel was made. This criticism therefore does not
    support a finding of ineffective assistance of counsel. The decision to ask the
    question in chief was consistent with the appellants theory that nothing
    untoward involving him had occurred; it is not clear how trial counsel could
    have objected to cross-examination on the answer, nor anticipated that the
    cross-examination would unfold as it did.

[94]

Fourth, the appellant
    complains that trial counsel did not suggest to L.T. or K.T. while cross-examining
    them that sexual touching never occurred.

[95]

A question by counsel is
    not evidence  only the answer is. Trial counsel challenged the reliability of
    L.T. and K.T.s allegations. They maintained their assertions about what
    occurred. There is no basis to conclude that if the specific suggestion now
    raised had been put to them, L.T. or K.T. would have acceded to it or altered
    their evidence.

[96]

Fifth, the appellant
    criticizes trial counsel for not pursuing an alternate suspect application to
    pursue the defence that M.G. was responsible for the assaults. There is no
    evidence that such an application would have made any impact on the trial.
    Trial counsel testified that he did not feel restricted in what he could pursue
    by reason of the absence of an application, M.G. was asked whether he had
    committed either sexual assault and denied it, and the trial judge turned her
    mind to whether M.G. was the perpetrator but found otherwise.

[97]

Sixth, the appellant
    submits that trial counsel ineffectively litigated the identification issue by
    not asking the appellant what colour t-shirt he was wearing, and ineffectively
    cross-examining L.T., K.T., and M.G. to undermine identification based on what
    was worn.

[98]

A factual assertion at
    the centre of these complaints is that the appellant was wearing a dark t-shirt
    on the evening in question and that he had told his original counsel and trial
    counsel that fact. In my view, the appellant has not established this on a
    balance of probabilities.

[99]

The appellants original
    counsel gave evidence that she has no recollection of the appellant advising
    her he was wearing a dark t-shirt. That evidence is consistent with an absence
    of any notation to this effect in her file, and her agreement that although the
    appellant was identified based on the white-t-shirt, she had no information
    when she transferred the file to trial counsel to contradict L.T. or K.T.s
    evidence about the appellant wearing a white t-shirt.

[100]

Trial counsel also had
    no recollection of receiving any such advice from the appellant.

[101]

The timing of the
    appellants assertion in this regard detracts from its believability. The notes
    that the appellant took during the preliminary inquiry do not comment on L.T.
    or K.T.s evidence that he was wearing a white t-shirt, although they comment
    on other inaccuracies he thought existed in their evidence. The appellants
    original counsel fielded an initial complaint from him about trial counsels
    performance after the conviction. She had no recollection of the appellant
    saying, during the course of the complaint, that he had worn a dark t-shirt. Correspondence
    on behalf of the appellant to trial counsel setting out assertions of
    ineffective assistance began in 2015, without any allegation that this specific
    advice had been given to trial counsel. An affidavit of trial counsel in
    response to the assertions that were made was delivered in February 2016. The
    appellant did not assert that he had told his original counsel and subsequently
    trial counsel that he was wearing a dark t-shirt until his affidavit delivered
    in May of 2017.

[102]

The appellant
    criticizes trial counsel for: (i) not cross-examining M.G. on his criminal
    record; and (ii) not putting to him his preliminary inquiry evidence that he
    could not recall what he, or anyone else, was wearing on the evening in
    question, except that he could speculate on what one person was wearing. This
    criticism focuses on M.G.s trial evidence in which he said that he thinks
    the appellant was wearing a white-t-shirt.

[103]

Trial counsel
    cross-examined on aspects of the criminal record, the full extent of which was
    introduced during examination in chief. The trial judge took into account M.G.s
    criminal record and that it included crimes of dishonesty.

[104]

The trial judge did
    not place much reliance on M.G.s evidence, for a variety of reasons. She
    appears to have credited it only where it was consistent with other evidence
    and she expressly stated it did not turn the tide of the trial. In light of
    this, cross-examination on the difference between M.G.s preliminary inquiry
    evidence (including its offer to speculate) and what he said he thinks at
    trial, had it occurred, was unlikely to have caused the trial judge to take a
    different view of M.G.s evidence. In any event, the absence of
    cross-examination on these points does not give rise to a reasonable
    probability that a different verdict would have resulted.

[105]

The criticisms of
    trial counsels cross-examinations of K.T. and L.T. on their identification
    evidence are also not established.

[106]

K.T. testified both at
    the preliminary inquiry and at trial that the appellant was wearing a
    white-t-shirt. She also says that she saw him get up from the couch. The
    appellants complaint focuses on the fact that K.T. did not mention the white
    t-shirt in her police statement. She was cross-examined on this at trial. She
    explained that the police had not asked about this. She had told the police
    that she actually saw the appellant at the end of the couch. The extent of the
    cross-examination on any discrepancy with the police statement was reasonable
    in the circumstances.

[107]

The appellant
    complains that L.T. should have been cross-examined more effectively. At the
    preliminary inquiry, she said she identified the appellant because of the white
    t-shirt. At trial, she referred to both the white t-shirt and the differences
    between M.G.s build and that of the appellant.

[108]

L.T. referred to the
    difference in builds first when invited by the Crown, in chief, to contrast
    them, and then in response to a question in cross-examination regarding whether
    M.G. was wearing a white-t-shirt. The evidence on the fresh evidence motion is
    that the differences in the builds of M.G. and the appellant were significant
    and obvious. It is therefore doubtful that confronting L.T. with her
    preliminary inquiry evidence would have established the absence of
    distinguishing features between these two individuals.

[109]

None of the criticisms
    establish that counsels performance fell below a standard of reasonableness or
    that a miscarriage of justice occurred.

The Sentence Appeal

[110]

The sentence appeal
    was not pursued in oral argument. The appellants factum does not identify any
    basis to conclude that an error of law or principle affected the sentence, or
    that it is demonstrably unfit. There is therefore no basis for appellate
    intervention:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    paras. 41 and 44.

D.

CONCLUSION

[111]

I would admit the
    fresh evidence, but would dismiss the conviction appeal. I would also refuse
    leave to appeal sentence.

Released: August 27, 2021 C.W.H.

B. Zarnett J.A.

I agree. C.W.
    Hourigan J.A

I agree. Coroza
    J.A.





[1]

The fresh evidence includes affidavits of the
    appellant, trial counsel, original counsel, original counsels former articling
    student and former assistant, and transcripts of cross-examinations on the
    affidavits (and in one case, written interrogatories and responses).


