R v Oldfield, 2023 ABKB 676

Court of King’s Bench of Alberta Citation: R v Oldfield, 2023 ABKB 676 Date: 20231129 Docket: 210153797S1 Registry: Edmonton Between: His Majesty the King Crown - and - Adolphus Oldfield Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on December 11, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Justice M.E. Burns _______________________________________________________

I. Introduction [ 1 ] Adolphus Oldfield appeals his conviction and sentence for the offences of sexual assault and sexual interference of his girlfriend’s then 15-year old daughter. Justice MacDonald sentenced Mr. Oldfield to 10 months in gaol and 24 months probation, a SOIRA designation for 10 years, a DNA order, and made an order for restitution for counselling sessions for the victim. Mr. Oldfield also applied for an exemption from the SOIRA order pursuant to s 24(1) of the Charter , but that application will be dealt with in another decision. II.

Issues [ 2 ] At issue here are whether: • new evidence should be admitted in the appeal; • the conviction should be set aside on the basis that o Mr. Oldfield received ineffective assistance from Counsel; o The trial judge made unwarranted inferences that led to adverse credibility findings against Mr. Oldfield; and o The complainant and a key Crown witness should have been recalled to be cross-examined on material points raised in Mr. Oldfield’s testimony. • the sentence imposed was inappropriate and based on flawed reasoning. III.

Standards of review [ 3 ] Questions of law alone or questions of mixed fact and law are reviewed on a correctness standard: Housen v Nikolaisen , 2002 SCC 33 at paras 8 and 36 . Questions of fact will warrant intervention if the judge has committed a palpable and overriding error: Housen at para 10 . An appellate court may only interfere with a trial judge’s inference if the trial judge made a palpable and overriding error with respect to underlying facts or if the inference-drawing process was palpably in error: Housen at para 23 .

Further, the appellate court cannot interfere with factual conclusions because it disagrees with the trial judge over the weight to be assigned to the underlying facts: Housen at para 23 . A. Effectiveness of counsel [ 4 ] On the issue of ineffective counsel, the question is whether the situation, viewed as a whole, reveals a miscarriage of justice as required under s 686(1)(a)(iii) of the Criminal Code .

This is a question of law: R v Sauverwald , 2020 ABCA 388 at para 10 . [ 5 ] The Crown argues that some deference is owed to the trial judge’s assessment of whether the administration of justice had been brought into disrepute, citing R v Côté , 2011 SCC 46 at para 9 . I note that this deferential standard does not apply here for several reasons.

First, the Court in Côté was reviewing a trial judge’s decision to admit evidence gathered in breach of the Charter to determine whether this constituted a miscarriage of justice under s 24(2) of the Charter, not the question of whether ineffectiveness of counsel constituted a miscarriage of justice. Second, the trial judge here did not assess counsel’s effectiveness, therefore there is no decision to treat with deference.

And closely related to the first two reasons, fresh evidence was not before the trial judge. [ 6 ] Similar conclusions were made in Sauverwald where the Court of Appeal held that the appellate court was required to evaluate whether the trial was fair, without applying a standard of review to the trial judge’s finding on the mistrial (at para 13) and in R v Lundle, 2023 ABCA 11 where the Court of Appeal applied no standard of review since the appellant’s only ground of appeal was the ineffectiveness of counsel ( Lundle at para 13 ). [ 7 ] I conclude that I must assess the claim of ineffective representation by counsel to determine whether there was a miscarriage of justice on a de novo basis.

B. Errors in trial judge’s decision [ 8 ] Mr. Oldfield sets out three grounds of appeal related to alleged errors by the trial judge. [ 9 ] The first ground, taking judicial notice of an untrue “fact”, is a legal question and is reviewed on the standard of correctness: R v Hussein , 2022 ABCA 219 at para 10 . [ 10 ] The second ground of appeal of the trial judge’s decision, making unwarranted inferences leading to adverse credibility findings against Mr.

Oldfield, the standard of review is palpable and overriding error in the trial judge’s inference-drawing process: Housen at para 25 . [ 11 ] The third ground of appeal, the trial judge’s assessment of credibility, the standard is palpable and overriding error: Hussein , at para 11 .

C. Sentencing [12] The standard of review on sentencing is highly deferential: R v Lacasse, 2015 SCC 64 (at para 52). An appellate court onappeal of a sentence imposed at trial must determine whether the sentence was demonstratively unfit; that includes “clearlyunreasonable”, “clearly excessive or inadequate” or “falling outside the acceptable range of orders”: Lacasse, at para 52.

Appellateintervention will be justified if the trial judge made an error in principle, failed to consider a relevant factor, or erred when assessingaggravating or mitigating factors, and the error or errors had an impact on the sentence (Lacasse, at para 44). An appellate court maynot interfere on the basis that it would have weighed the sentencing factors differently, or because it disagrees with the trial judge’sdiscretion in choosing the sentencing range or a category within the ranges: Lacasse, at para 49 and 51. IV Analysis A.

New Evidence [13] The new evidence the parties wish to introduce relate to whether Mr. Oldfield received ineffective assistance from his lawyer,Mr. Wolsey. The evidence the parties wish to introduce consist of: • The affidavit of Mr. Oldfield, filed December 16, 2022; • The affidavit of Mr. Wolsey, filed March 3, 2023; • The examination and cross-examination of Mr. Wolsey conducted March 15, 2023; and • The examination and cross-examination of Mr.

Oldfield conducted March 15, 2023. [14] The Alberta Court of Appeal addressed the admission of new evidence in an appeal of a sexual assault conviction where theappellant’s ground of appeal was an allegation of ineffective assistance of counsel: Lundle.

The Court held that the appellant’sapplication to admit new evidence was governed by the test set out in Palmer v The Queen, (SCC), [1980] 1 SCR 759, atp 775, and R v Lévesque, 2000 SCC 47, [2000] 2 SCR 487 (at paras 14, 17): (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result.

The overriding consideration in application of these principles must be "the interests of justice": Palmer, 775; Lévesque, paras 14, 17. [15] The Court of Appeal chose to reserve its decision on the new evidence application and considered it with the appeal.

I havedone the same. [16] In this case the first two Palmer factors favour admission: • The proposed fresh evidence could not have been introduced before the trial judge because the allegations of ineffective assistancearose before and during the trial and “review of counsel’s conduct leading up to and during the trial is required, and may be potentiallydeterminative.” (see Lundle at para 20); and • Mr. Oldfield’s evidence is relevant to the allegation that Mr.

Wolsey was ineffective at trial, setting out alleged failures to advisehim of his rights, and failing to challenge the complainant’s credibility (see Lundle at para 20). [17] The final two Palmer factors require assessment within the context of the appeal itself. Mr. Wolsey’s and Mr. Oldfield’saffidavit evidence are contradictory, but both men appeared before me to be cross-examined on their affidavits. I must, therefore, assesstheir evidence to determine whether it is reasonably capable of belief under the third factor. Under the fourth Palmer factor if I believeMr.

Oldfield’s evidence, I must determine if that evidence could reasonably be expected to have affected the result. I will do this in thecontext of the issues I am assessing. B. Did Mr. Wolsey provide ineffective representation of Mr. Oldfield? 1. The allegations [18] Mr. Oldfield raises five allegations of the ineffectiveness of his counsel:

a) Mr. Wolsey did not adequately prepare Mr. Oldfield for trial, including no preparation for cross-examination;

b) Mr. Wolsey did not properly inform Mr. Oldfield of his right to silence;

c) Mr. Wolsey did not tell Mr. Oldfield that he could have an interpreter present which affected his ability to communicate and

understand the proceedings;

d) Mr. Wolsey did not use Mr. Oldfield’s information that the complainant’s mother told him the complainant was a liar when cross-examining the mother or the complainant;

e) Mr. Wolsey did not re-examine the complainant about a consequential issue – the weather on the day of the incident, includingwhether it was cold in the house with the door open. [19] I note that despite listing the last allegation in its statement of the issues relevant to the effectiveness of counsel (Factum; p 3,para 9), the Factum only addressed this issue when alleging that the Trial Judge erred by taking improper judicial notice of Edmonton’sweather in January. As a result, I will only deal with the first four allegations when analyzing whether Mr. Wolsey provided Mr.Oldfield with effective counsel. 2.

The test [20] The Alberta Court of Appeal in R v MacDonald, 2018 ABCA 138 (at para 13 and 26) and R v Shaw, 2018 ABCA 407 (atpara 12) held that to establish that counsel at trial was ineffective or incompetent an appellant must establish the following three-parttest: • the facts on which the claim of incompetence is based; • that the representation provided by trial counsel was incompetent (the performance component); and • that the incompetent representation resulted in a miscarriage of justice (the prejudice component). [21] In Sauverwald, the Court of Appeal indicated that as a practical matter the three-part test sets a high bar that usually requiresevidence from the accused and the former trial counsel (at para 17-18).

But the Supreme Court of Canada in R v GDB, 2000 SCC 22 atpara 29 held that the performance component of the test is subordinate to the prejudice component; if Mr.

Oldfield is unable to establishprejudice caused by counsel’s ineffectiveness, the court should not address the performance component. [22] The Court in Sauverwald noted that when assessing the prejudice component, it is not necessary for the accused to prove thatthe verdict would have been different to establish there was a miscarriage of justice; rather an appellant must establish a reasonableprobability that, but for counsel’s error, the proceedings might have been different (at para 14 -19) citing R v Sewak, 2019 ABCA 303(at para 31). [23] I will first determine if Mr.

Oldfield has established a reasonable probability that the verdict might have been different were itnot for the alleged conduct (the prejudice component). I will do this by assuming the allegations against counsel are true. As such, I willaccept the fresh evidence in a way that is favourable to Mr. Oldfield’s allegations for the purpose of this analysis. If I find a reasonableprobability that the verdict might have been different, it will then be necessary to consider whether counsel’s conduct of the trial wasincompetent as alleged (the performance component). 3. The prejudice component i.

What constitutes a miscarriage of justice? [24] To establish a miscarriage of justice Mr. Oldfield must establish, on the standard of reasonable probability, that “but forcounsel's errors, the result of the proceedings would have been different.”: R. v. Dunbar, 2003 BCCA 667 at paras 26-27; R v Joanisse(1995), (ON CA), 102 CCC (3d) 35 (ON CA) at para 79.

In Dunbar, the Ontario Court of Appeal explained that areasonable probability lies somewhere between a mere possibility and a likelihood (at para 26, citing Joanisse at para 80). [25] In R v KKM, 2020 ONCA 736, the Ontario Court of Appeal held that the prejudice component arises when counsel hasprovided ineffective representation leading to either an unfair trial or an unreliable verdict (at para 55). In GDB, the Supreme Court ofCanada held that miscarriages of justice may take many forms, including compromising the trial’s validity and creating proceduralunfairness (at para 28). ii.

Failure to adequately prepare Mr. Oldfield for trial and cross-examination [26] At this point in the analysis, the question is whether Mr. Oldfield has established, on the standard of reasonable probability,that the result of the proceedings would have been different if Mr. Wolsey had conducted a more thorough preparation. [27] Relying on Mr. Oldfield’s testimony that he was not prepared for what happened in the courtroom, Mr.

Oldfield argues that ifthere is a proven failure to prepare a witness for cross-examination or that the witness received insufficient preparation, the result is thatboth the prejudice and performance components are met, citing R v McDonald, 2022 ONCA 574, at para 84.

However, the Court inMcDonald (at para 83) held that failure to interview potential witnesses does not automatically warrant a finding of incompetence, andthat the Court must consider the factual context, citing R v White (1997), (ON CA), 32 OR (3d) 722 (CA). [28] In McDonald, at issue was not the failure to prepare an accused for examination and cross-examination, but the failure tointerview a defence witness before trial to assess their potential evidence. Moreover, in McDonald there was no evidence that thewitness in question had been interviewed at all, and the Court inferred that she was not.

Finally, the Court in McDonald found that therewas no compelling reason to call the witness, and having done so, the witness’s answers were “very damaging” to the appellant. TheCourt concluded that as a result both the prejudice and performance components were met.

[ 29 ] Here, however, there is evidence from both Mr. Oldfield and Mr. Wolsey that Mr. Oldfield was interviewed and asked questions that were likely to arise in Court. Mr. Oldfield cannot point to any “very damaging” evidence that would have been different had Mr. Wolsey conducted the more thorough preparation Mr. Oldfield thought was necessary. [ 30 ] Mr. Oldfield argues that the alleged insufficient preparation was demonstrated by the trial judge’s expressed concern that Mr. Oldfield’s version of events was not put to the complainant or her mother in cross-examination.

This is a Brown v Dunn problem and is unrelated to whether Mr. Oldfield was properly prepared for trial. In any event, the trial judge noted that the Crown chose not to call back either of these witnesses and concluded that none of the questions that ran afoul of Brown v Dunn were “so central to this case that trial fairness requires that the [witnesses] be recalled before me” (Transcript 21 12 02, p 10, ll 16-24). [ 31 ] The core issue before the trial court was whether Mr. Oldfield touched the complainant’s breast while massaging her shoulder. Mr.

Oldfield’s evidence at trial was the same as in the pre-trial interview. Mr. Wolsey asked him the same questions and received similar answers in their pre-trial interview and in direct examination; similar answers were also provided in cross-examination (see Transcript 21 09 02, pp 78-79). [ 32 ] Moreover, Mr. Oldfield’s evidence in both examination and cross-examination was relatively fluent. He answered questions carefully and was prepared to reject any suggestions by the Crown that he did not agree with.

He responded with detailed answers, but did not answer questions not asked of him, and he was able to describe the scene and events clearly. Where his evidence differed from the complainant’s or her mother, he maintained his version of the incident. [ 33 ] Mr. Oldfield has not demonstrated that any further preparation by Mr. Wolsey would have changed the outcome. I conclude that Mr. Oldfield has not established a reasonable probability that there was a miscarriage of justice based on insufficient preparation of Mr. Oldfield for trial. iii. Failure to advise Mr. Oldfield of his right to silence [ 34 ] Mr.

Oldfield argues that a failure to advise him of his right to silence raises both substantive and procedural fairness concerns and concludes that such a failure requires a new trial whether or not there was prejudice, relying on an obiter comment in KKM (at para 91 ): An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying.

In those situations, counsel’s ineffective representation denies the accused the right to make a fundamentally important decision about the conduct of his defence. That denial goes to the appearance of the fairness of the trial, if not the actual fairness of the trial.

Either results in a miscarriage of justice, regardless of the impact of the ineffective representation on the reliability of the verdict . (Emphasis added.) [ 35 ] The Court in KKM relied on R v Eroma , 2013 ONCA 194 ; R v DGM , 2018 MBCA 88 , and R v Stark , 2017 ONCA 148 in support of this proposition. [ 36 ] However, the Supreme Court of Canada in White 2022, at para 7 , expressly rejected this approach.

It held that counsel’s failure to discuss and obtain instructions on fundamental questions, like electing the mode of trial or whether to testify, raises questions about procedural fairness and the reliability of the verdict [1] . The Court went on to state: However, the Court has never provided that the loss of those decisions alone warrants a new trial on ineffective assistance grounds. To the extent that Stark suggests otherwise, it is incorrect.

The accused must, in most cases, demonstrate more than the loss of choice. [ 37 ] In both Eroma and DGM both appeal courts ordered a new trial based on the ineffective assistance of counsel. In both cases the appellants argued that their counsel did not call them to testify despite instructions from them that they wished to testify in their own defence. Here, however, Mr. Oldfield argues that he testified, but Mr. Wolsey did not inform him that it was his choice to make, and he did not discuss the possible benefits and dangers associated with taking the stand. [ 38 ] Even if these allegations are true, Mr.

Oldfield must show a reasonable probability that the verdict would have been different but for the alleged conduct. In White 2022, the Supreme Court noted that the appellant had not stated that he would have chosen differently if counsel had informed him of the right to elect the mode of trial, and as a result the appellant had not established a miscarriage of justice. Similarly, here Mr. Oldfield has not indicated that had he been informed of the choice, he would choose not to testify. [ 39 ] Moreover, and more importantly, had Mr. Oldfield chosen to not testify, the verdict would have been the same.

Without his evidence, the trial judge would have only the evidence of the complainant and her mother. The verdict would undoubtedly have been the same. I conclude that Mr. Oldfield has not established that there was prejudice based on a failure to advise Mr. Oldfield of his right to silence. iv. Failure to discuss and provide an interpreter [ 40 ] Mr. Oldfield argues that his readily apparent difficulties in communicating clearly in English means that counsel should have obtained an interpreter, and that this inability to communicate led to a miscarriage of justice. In particular, Mr.

Oldfield points to the trial judge’s statement: Further, I note that when specifically asked by the Crown if he had touched [the complainant’s] chest, the accused twice gave a qualified answer. Mr. Oldfield was specifically asked by Mr. Wolsey “Did you at any point put your hands on or near her breasts?” To which he replied, “No, not that I remember.” In cross-examination, the Crown asked Mr. Oldfield if his hand ever moved below the [complainant’s] collarbone and he replied, “Not at all. Not that I can remember.” The answer clearly suggests he may have but cannot recall. (Transcript 21 12 02, p 11, ll 2-7)

[41] Mr. Oldfield argues that this “equivocation” may be the result of his lack of fluency in English. [42] I do not accept that this response indicates a lack of familiarity with English. In fact, these answers are similar to the answersMr. Wolsey says Mr. Oldfield gave in their initial interview. [43] Despite his problems with syntax and pronunciation, a review of the trial transcript shows that Mr. Oldfield responsivelyanswered the questions in both direct and cross-examination. His answers were often lengthy, indicating comfort with both understandingthe questions and answering fully.

I found only two examples of him asking to have a question repeated or struggling to understand(Transcript 21 09 02, p 71, ll 23-24, p 73, ll 9-11). However, neither example suggests that he was having difficulty because of his ownlanguage issues, only that the questions were phrased a little awkwardly and he sought clarification. [44] It is true that a transcript leaves out whether there were pauses as he was answering or the speed of his speech or any accent,but I have the advantage of observing Mr. Oldfield being cross examined on his affidavit.

He appeared to understand the questions andhe responded appropriately (as if he understood). He was able to disagree with conclusions put to him that did not accord with hisnarrative. He only asked twice for a question to be repeated (discussed above) and he never said he needed an interpreter. When asked ifhe wanted specific assistance in preparation for trial, he responded that he did not want to be told what to say but he wanted to be toldwhat it would be like. These are, I find, the sort of clarifications that would be made only if one understood what was beingcommunicated. I have no doubt that Mr.

Oldfield understood the language of the proceedings at trial and in this appeal. [45] I conclude that Mr. Oldfield has not established a reasonable probability that failure to retain an interpreter led to amiscarriage of justice. v. Failure to cross-examine the complainant’s mother [46] Mr. Oldfield argues that when Mr. Wolsey failed to cross-examine the Crown’s two witnesses about whether the complainantwas a liar, he “overlooked potential evidence,” citing R v Cubillan, 2018 ONCA 811 at para 26. Cross-examination, says Mr.

Oldfield,is the “greatest legal engine ever invented for the discovery of truth”: Innisfil Township v Vespra Township, (SCC),[1981] 2 SCR 145 at 167, citing Wigmore on Evidence (Chadbourne Rev. 1974) vol. 5, p. 32, para. 1367, and this failure led to Mr.Oldfield’s conviction. [47] In direct examination, Mr. Oldfield testified that immediately after the complainant disclosed to her mother that Mr. Oldfieldhad touched her breast, the mother told him she did not believe what the complainant told her and that she was a troublemaker.

The trialjudge’s reasons found this evidence to be troubling since these statements were never put to either the complainant or her mother: The accused’s evidence was that [Ms. G] stated to him immediately after [complainant’s] disclosure to her that she did not believe herdaughter and that she characterized her daughter as “a troublemaker”. This conversation was not put to [Ms. G]. [Ms. G’s] opinion on thetruthfulness of her daughter’s complaint would be of minimal probative value, absent some further evidence from [Ms.

G] which couldreasonably lead a trier of fact to conclude that [the complainant] is habitually untruthful or an unreliable narrator. No such evidence waselicited from [Ms. G], certainly none that would give this Court pause about [the complainant’s] truthfulness or reliability. On the contrary, the accused’s evidence on this point lead me to conclude that he is basely attacking [the complainant’s] character andthat his portrayal of her is unreliable and deliberately so in order to bolster his defence. Overall Mr.

Oldfield’s evidence is that [thecomplainant] is mean to her brother, jealous of him, possessive of her mother, and yet at the same time seeking out physical contact withhim – hugs, massages. (Transcript 21 12 02. P 11, ll 22-35) [48] The trial judge clearly stated that his assessment of Mr. Oldfield’s and complainant’s credibility was affected, in part, by Mr.Oldfield’s evidence of what the complainant’s mother told him, and that this was never put to her in cross-examination. I conclude thatMr.

Oldfield has established a reasonable probability that failure to cross-examine the witnesses about the complainant’s truthfulness andreliability could have led to a miscarriage of justice. 4. The performance component [49] Based on my finding that there was no prejudice or miscarriage of justice arising from three of the four allegations, the onlyallegation that must be considered under the performance component is whether Mr. Wolsey should have put to the Crown witnesses, orat least to the complainant’s mother, Mr.

Outfield’s statement that the mother told him the complainant was a liar and troublemaker. [50] In MacDonald, the Court of Appeal held that when assessing the performance component, appellate courts should be slow toconclude that a defence lawyer’s conduct was deficient (at para 12).

In Lundle (at para 14), the Court noted that there is a presumptionof a trial counsel’s competence in decisions made at trial and that the lawyer’s actions are assessed against a reasonableness standard,taking into account the circumstances of the case at the time of the trial and without the benefit of hindsight, citing Sauverwald, at paras15-18; GDB, paras 26-29; White 2022, at para 6. [51] Likewise, the Supreme Court of Canada in GDB, held that there is a strong presumption that counsel’s conduct fell within awide range of reasonable assistance and that the onus is on the appellant to establish the acts or omissions alleged to have been in breachof the standard of reasonable professional judgment.

It noted (at para 27): “The wisdom of hindsight has no place in this assessment.” i. Failure to cross-examine [52] Mr. Oldfield notes that the central Crown evidence was the complainant’s uncorroborated testimony of inappropriatetouching. While the complainant’s mother also testified, she did not witness the alleged incident. Thus, as Mr. Oldfield argues, thecredibility and reliability of the complainant’s evidence was crucial to the trial judge’s decision. [53] Mr. Oldfield argues Mr. Wolsey did not use the information Mr. Oldfield provided him about the complainant’s frequent

lying, and Mr. Oldfield suggested he “overlooked ... potential evidence and may have even failed to appreciate its importance,” citing Cubillan . In particular, Mr. Oldfield argues that the trial judge used this failure against him to further impugn his credibility, noting the portion of the transcript quoted earlier in these reasons. [ 54 ] The transcript of the trial belies this carelessness argument. As counsel and the trial judge address the trial judge’s concern about Mr. Oldfield’s evidence that should have been put to the Crown’s witnesses during the cross-examination, Mr. Wolsey notes: MR.

WOLSEY And -- and I will say that I did not ask the mother about her opinion regarding her -- the veracity of her daughter's claim for -- for obvious reasons -- THE COURT: Okay . MR. WOLSEY: -- because I didn't want to elicit opinion evidence on her demeanour -- THE COURT: Yeah. MR. WOLSEY: -- because that's the trier of fact's decision -- THE COURT: Okay . Transcript 21 09 01 p. 92, ll 19-32 [ 55 ] In his affidavit, Mr. Wolsey says that he deliberately did not question the complainant’s mother about her statements to Mr.

Oldfield that the complainant was a frequent liar because he did not think it was proper for him to ask a witness to comment on the truthfulness of another witness, and he did not wish to “draw the ire of the Court in this regard.” [ 56 ] In the questioning on his affidavit, Mr. Wolsey explained further that he did not think he should have asked the complainant’s mother whether she thought “her own daughter was ... a liar” and his choice not to raise it was based on his past experience and on knowing Justice MacDonald.

He did not think he was going to get anywhere with that line of questioning (see Transcript 23 03 15, p 34, ll 11-30). [ 57 ] Further on in the transcript of questioning on Mr. Wolsey’s affidavit, the following exchange took place in cross-examination: A: It's -- I -- I can't -- it's my understanding that I can't be questioning another witness about another witness -- a witness about another witness's veracity. That is a question for the trier of fact to determine. And like I said before, I've gone down that road, and it's never ended well for me.

Q So, your understanding of the law is that you can't ask a witness, has your experience been that this person frequently lies. That question would be improper? A Oh, I think a lot of judges would say, yeah. Q But that's not the law, you'd agree? A It depends who you talk to, but -- but, yes, fair -- like, fair enough. I mean, that's not the law, but a lot of people -- a lot of judges will tell you that that is an improper question because it's essentially (INDISCERNIBLE) Q Okay.

It seems to me the Supreme Court of Canada has said otherwise very clearly in a case called Little. [2] Are you familiar with that case ? A Remind me. Q It says that, in cross-examination, you can ask any question for which there's a good faith basis. A Fair enough. But I'm basing this on my experience -- Q Okay . A -- with judges, and particularly Judge MacDonald . Q Okay. But -- but you said the law's not clear and people have a difference of opinion. I'm telling you there seems to be a clear case here. Are you familiar with that case? A I -- I'm not wholly familiar with the case, no. Q Okay.

Are you familiar with the case of Nand [3] from our Court of Appeal? A The year ? Q It's a 1989 Alberta Court of Appeal case . A No. No, I am not. I can't say that I am. Q Okay. It -- it says clearly that you can put one witness's statement, even if not proven in evidence, to another witness on cross-

examination. A Okay. I'm going to take your word for that. (Transcript 23 03 15, p 39, ll 20-41, p. 40, ll 1-16) [ 58 ] I find that Mr. Wolsey deliberately chose not to question the mother about her daughter’s veracity. I further find that this was a tactical decision made based on Mr. Wolsey’s experience and based on his experience with this particular trial judge. [ 59 ] Nonetheless, Mr. Wolsey’s cross-examination of the complainant’s mother covered a variety of topics that included questions about: • Whether the complainant expressed that Mr.

Oldfield and her brother took the mother’s attention away from her; the mother agreed that was true sometimes; • whether there was an incident at Christmas when the complainant was upset that Mr. Oldfield got his own stocking; the mother denied this occurred; • whether the complainant had become challenging and the mother said there were some verbal fights between them, maybe every couple of weeks; • whether there was such a verbal fight on or around the day of the alleged incident; the mother replied “Not that I remember”; • whether Mr.

Oldfield and the complainant had a good relationship up to this time, and mother said the complainant sometimes yelled when they got tired of each other, but “it was decent to good”; • whether the complainant told the mother that she wished Mr. Oldfield was gone; mother denied this; • an outburst around Christmas; mother could not remember what it was about; [ 60 ] In his cross-examination of the complainant’s mother, Mr.

Wolsey tried to dig a little deeper about the Christmas incident, which the mother had included in her police statement: Q -- you’d indicated that there was -- that there had been an outburst, which occurred around Christmas . A Okay . Q Tell me what that was about? A I wish I could remember. I don't know . Q You don’t remember? A It could have been that I said the wrong thing. I don't know . Q Okay. But it -- A But, likely, there would have been an outburst. Like, we fought about -- once every couple of weeks . Q Okay . A Yeah. So I can’t tell you the details because I don't remember .

Q So you wouldn’t recall if it was an outburst which involved Mr. Oldfield to any extent? A I don't know. I don't remember . Q Okay . (Transcript, 21 09 02, p 41, ll 21-41) [ 61 ] Mr. Wolsey’s cross-examination carefully poked and prodded the complainant’s mother, attempting to find some indication that the mother and daughter had a difficult relationship, that the complainant actively disliked Mr. Oldfield, or that the complainant might have had some motive to fabricate. The mother denied or did not remember certain incidents that, had they been confirmed, might have been useful to raise a reasonable doubt.

It was a thorough and careful cross-examination that demonstrated, if not perfect, then adequate, skills in trial tactics and questioning. [ 62 ] In this analysis I must keep in mind that: • there is a strong presumption that counsel’s decisions made at trial are competent; • a finding of ineffective representation must meet a high bar; • that the lawyer’s actions should be assessed against a reasonableness standard; • the Court must take into account the circumstances of the case at the time of the trial; and

• the Court should not rely on hindsight. [ 63 ] Based on these factors, I conclude that Mr. Oldfield has not provided sufficient evidence to establish that Mr. Wolsey’s representation was ineffective based on the performance component. I conclude that his tactical decision to not cross-examine the complainant’s mother about her daughter’s veracity was reasonable in all the circumstances. 5. Conclusion on ineffective representation [ 64 ] I conclude that Mr. Oldfield has not met the high bar to establish that Mr. Wolsey provided inadequate representation. I conclude that Mr.

Oldfield’s first ground of appeal — that Mr. Oldfield received ineffective assistance from Counsel is dismissed. C. Did the trial judge commit errors 1. Improper Judicial Notice of Edmonton’s Weather in January [ 65 ] In assessing the veracity of Mr. Oldfield’s narrative, the Trial Judge noted: He is apparently stretched out, one hand on the doorhandle and the other hand on KG's shoulder with the door open for up to 5 minutes. It is January in Edmonton. Ms. KG is in her pajamas and has just had a shower and her hair is wet. The accused's evidence that the balcony door was open is unbelievable.

The cold draft from the open door would have been markedly and extremely unpleasant for someone just in pajamas and with wet hair. I do not believe the accused's evidence on this point. (Transcript of 21 12 02 at p 11, ll 14- 20). [ 66 ] It is based on this passage that Mr. Oldfield asserts the trial judge took inappropriate judicial notice of the weather in Edmonton in January and based his credibility assessment of Mr. Oldfield on an inaccurate fact that Edmonton is cold in January. [ 67 ] During the trial, the trial judge asked Mr.

Oldfield two questions about the balcony door being open in the in the apartment and confirmed that Mr. Oldfield was going out through the balcony door to smoke. He did not ask if either the complainant or he were cold. The Crown then re-cross-examined Mr. Oldfield about the temperature in the room, suggesting that: • January was not the warmest month of the year in Edmonton; • It must have been cold inside the room; and • No one commented about the temperature in the room while the door was open for ten minutes; (Transcript 21 09 02 at p 87, ll 21-41). [ 68 ] Mr.

Oldfield agreed with the first two statements and in answer to the third, suggested that the door may have only been open for five minutes, but then added “I wanted to go smoke less than five minutes or less, but she showed me the picture again, had talked about the picture, like maybe ten minutes or more.” (Transcript 21 09 02 at p 87, ll 38-41). He further indicated that he was the only person who complained about the cold in the house, so it probably did not matter that the door was open (Transcript 12 09 02, p 89, ll 1- 3). [ 69 ] Mr. Oldfield argues that the trial judge found that Mr.

Oldfield’s account was unbelievable based on a comparison between the complainant’s and Mr. Oldfield’s versions of events, and secondly on the fact that the balcony door could not have been open because January is cold and the cold draft from the open door would have been “markedly and extremely unpleasant for someone just in pajamas and with wet hair.” [ 70 ] Mr. Oldfield argues that publicly available data shows that the January weather in Edmonton was unseasonably warm and a record high was recorded at the time in question. Included in Mr.

Oldfield's factum was a document, seemingly copied from an internet site, that indicated that the Winter of 2020-2021 was warm and that the average high from December 1, 2020 to January 16, 2021 was the warmest on record, with an average daily high of +1 ℃ . [ 71 ] Citing R v Hussein , 2022 ABCA 219 , Mr.

Oldfield argues that the trial judge should not have supplemented and supplanted the evidentiary record by taking judicial notice of the January weather in Edmonton which is, based on the publicly available information, false. [ 72 ] On the question of judicial notice, the Supreme Court of Canada in R v Find , 2001 SCC 32 at para 48 , summarized the principles regarding the use of judicial notice: • Judicially noticed information dispenses with the need to prove facts that are clearly uncontroversial or beyond reasonable dispute; • These facts are not proved by evidence under oath or tested by cross-examination; • The threshold for taking judicial notice of facts is strict; • A court may take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. [ 73 ] I conclude that cold weather in Edmonton in January is notorious, generally accepted, and would not be the subject of debate.

While the temperature in January 2021 may well have been above normal, it was still cold. The cited weather information stated the average high temperature was +1 ℃ . I think we can all agree that while +1 ℃ degree is warmer than -30 ℃ , it would still be cold enough

that people would be uncomfortable with the door open, while wearing pajamas and having wet hair. [ 74 ] Moreover, there was some evidence in the trial that spoke to whether it was cold in the apartment with the door open. Mr. Oldfield agreed in cross-examination that January is not a warm month, that the apartment would likely have been cold with the door open, and that no one but him complained about the cold. [ 75 ] I conclude that the trial judge did not err by considering the weather in Edmonton in January. [ 76 ] In oral argument, counsel for Mr.

Oldfield argued that it was not even the inference that was the biggest issue – it was the use made of that inference to support an adverse credibility finding. He argued that it, in effect, reversed the onus of proof. I do not accept this argument. The inference was only one of many factors considered by the trial judge in his credibility finding, which included: • Mr.

Oldfield changed his evidence, saying initially that he did not touch the complainant’s chest, that the complainant never complained about her chest, and then testifying that he did not touch her chest on the date in question, but may have done so on other occasions when the complainant did complain about her chest (Transcript of 21 09 02 at p 79, ll 11-15 and p 81, ll 27-33; Transcript 21 12 02, p 10, ll 35-31, p 11, ll 2-7). • The complainant’s mother testified that Mr.

Oldfield and the complainant had some physical contact before the January 9 incident, but the complainant and her mother denied that her chest was a source of pain, only her knees, feet, thighs, and lower back. • Mr. Oldfield’s narrative of events on the couch were unbelievable and highly improbable; the complainant’s evidence was specific and clear that Mr. Oldfield never indicated he wanted to go out for a smoke, and her description of the sitting positions of the two of them was detailed. • There were two narratives: Mr.

Oldfield testified that he was heading outside to have a smoke, and that his hand stayed on her shoulder as he was holding the door open. The complainant, however, indicated that they were on the couch with his right hand leaning on the couch, his left hand starting on her shoulder and working down towards her right breast (Transcript 21 09 02 at p 18, ll 8-9). • Mr. Oldfield testified that the complainant was mean to her brother, jealous of Mr.

Oldfield, possessive of her mother, but at the same time his evidence was that she sought physical contact from him, seeking hugs and massages. [ 77 ] It is the balancing of all the factors that lead to the trial judge’s conclusions on credibility. The onus was not reversed, the Crown met its onus when all evidence was weighed and the weather was one of many factors. 2. The Trial Judge Held Mr. Oldfield to an Unduly High Standard of Spoken English [ 78 ] Mr. Oldfield argues that the trial judge ignored Mr. Oldfield’s difficulty in speaking English and, as a result, he held that Mr.

Oldfield was equivocal on a key issue – whether he had ever touched the complainant’s chest. As I noted in the earlier

section dealing with whether Mr. Wolsey should have advised Mr. Oldfield to use an interpreter, I do not agree that Mr. Oldfield’s answers to the questions about touching the complainant’s chest were equivocal because of language difficulties. [ 79 ] Mr. Oldfield’s answers to questions about whether he had touched the complainant’s chest on January 9 or at some other time, changed over time.

He initially testified in direct examination that he did not touch the complainant’s breast, “... not that I can remember” (Transcript 21 09 02, p 57-58, l. 41 and l. 2); he further testified that at no point did he touch the complainant’s breast and that he had never done anything like that (Transcript 21 09 02, p 69, ll 12-17). [ 80 ] In cross-examination he testified that the complainant never complained about her chest, and that he never “made contact with her chest.” (Transcript 12 09 02, p 79, ll 12-15).

Following that testimony, the Crown played his February 1 st interview with the police officer, and his testimony changed: he testified that he was telling the officer he did not touch the complainant’s chest on January 9, but probably in the past she had complained about her chest and she wanted him to rub her chest (Transcript 12 09 02, p 81, ll 23-30); also the complainant had complained about her chest, but not on the 9 th (Transcript 12 09 02, p 81, ll 32-26). [ 81 ] In further direct examination, in answer to Mr. Wolsey’s question “... you have touched her on the chest previously or you haven’t?

I just wasn’t clear on that.” (Transcript 12 09 02, p 86, ll 10-11), he replied: A No, because I was just making clear when she asked me -- I was just making -- she might have probably said, oh, her chest -- her chest is bugging her, rub my chest, and stuff like that, but that's -- on the 9th she never -- like, something like that happened. Like, yes, she can say my neck is bothering me, rub my neck or my head or stuff like that, right. Q So you -- okay. So, were you -- A So, who knows. Probably I have rubbed her chest before -- Q Okay. Okay. A -- if she complained about chest pain and -- right -- Q Okay.

A -- but not on that night. I was trying to make things clear with the police officer, too. (Transcript 12 09 02, p 86, ll 12-25) [ 82 ] These answers are not equivocal because he did not understand English or because he had trouble speaking English. He changed his complete denial that he had ever touched the complainant’s chest to he may have touched her chest, but not on the night in question. He said she never complained about chest pain, and then said she had complained about chest pain. These changes in his

testimony arose after his interview with the police was played. The changing evidence was to address the inconsistency between his statement to the police and his evidence at trial. [ 83 ] The trial judge assessed Mr. Oldfield’s credibility based upon these shifting answers, not because there were language issues. As noted previously, Mr. Oldfield was responsive to the questions asked; he answered fully and with examples, and when questions were unclear, he asked for clarification. He did struggle with some basic grammar and pronunciation, but the trial judge did not hold him to a higher standard of English.

He found Mr. Oldfield’s testimony to be equivocal, because, quite simply, it was. 3. The Trial Judge Held Mr. Oldfield to a Different Standard of Scrutiny than he did the Complainant [ 84 ] Mr. Oldfield argues that the trial judge held him to a different standard of scrutiny than the complainant, citing the trial judge's comment that problems in the complainant’s testimony was “of no moment” (Transcript 21 12 02, p 12, ll-7). I note that this statement by the trial judge statement was only in relation to whether the complainant was wearing a sweater.

He held that there was consistent evidence that she was wearing a Nike sports bra from both the complainant and her mother. His reasons note that the fact that there was some inconsistency on whether she was wearing a sweater was irrelevant to assessing her credibility. [ 85 ] Mr. Oldfield refers to several instances in which the trial judge did not accept the complainant’s testimony, including that she called out to her mother from the couch, but did not yell as she testified and that she did not remember trying to speak to her mother about the incident (Transcript 21 12 02, p 11, ll 37-41). Mr.

Oldfield suggests that the trial judge did not hold these memory issues against the complainant’s credibility, but did hold Mr. Oldfield’s memory lapses against him. [ 86 ] The Supreme Court of Canada in R v Gagnon , 2006 SCC 17 held that the trial judge’s reasons must be read as a whole and not dissected on a word-by-word basis, and that the trial judge’s language must be assessed with both care and context.

The Court went on to note that articulating a credibility assessment is a difficult exercise because of ... complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is why this Court decided, most recently in H.L. , that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. (paras 19-20). [ 87 ] In R v Radcliffe , 2017 ONCA 176 , leave to appeal ref’d [2017] SCCA No 274, the appellant alleged the trial judge had applied uneven scrutiny to the testimony of his and the complainant’s evidence.

At paras 23-28, the Court noted the following basic principles underly the analysis of whether there was uneven scrutiny: • Credibility findings attract significant deference and an appellate court should not engage in re-assessing the trial judge’s credibility assessments; • To succeed on an uneven scrutiny argument, the appellant must do more than suggest that credibility could have been assessed differently or that there was something that the trial judge could have said to gauge credibility and reliability; • The appellant must point to something in the reasons or trial record that clearly establishes that different standards of scrutiny were applied; • An appellate court cannot reassess and reweigh the evidence in the absence of a palpable and overriding error; and • The mere fact that the trial judge accepted the complainant’s evidence and not the appellant’s is not relevant to the uneven scrutiny analysis. [ 88 ] The Alberta Court of Appeal in R v Wanihadie , 2019 ABCA 402 , at para 35-36 , adopted these principles, and expanded upon them, stating: More specifically, it requires demonstrating that "something sufficiently significant" ( Phan at para 34) in the reasons or record establishes the trial judge employed a "faulty methodology" in deciding credibility : Paulos at para 17; Quartey at para 42, both citing CAM at para 34.

In short, the trial judge must be said to have "used two different measuring sticks": R v Gilbert , 2015 ONCA 927 at para 41 , citing Phan at para 74. [ 89 ] The Court of Appeal in Wanihadie , at para 37 , went on to cite R v HC , 2009 ONCA 56 for the proposition that sometimes it is appropriate to vary the assessment of credibility when dealing with a child’s evidence, and that trial judges should use a commonsense approach and not necessarily apply the same exacting standards as one would with adults. The Court in HC was referring to young children, and the complainant here was 15 at the time of the incident.

While not a young child, the trial judge appropriately took into account her youth and family circumstances as a teenage girl raised by a single mother with her autistic brother; he also noted her complicated health problems, and the impact of COVID lockdown.

He noted (Transcript 21 12 02, p 12, ll-16-18): I have no doubt that she was moody and sometimes difficult and had conflicts with her mother, but that is not unusual in a teenage girl and no solid basis for an adverse finding of credibility. [ 90 ] In R v GF , 2021 SCC 20 , the Supreme Court of Canada discussed the apparent lack of utility in addressing uneven scrutiny as a ground of appeal, noting at paras 100-101: I have serious reservations about whether "uneven scrutiny" is a helpful analytical tool to demonstrate error in credibility findings.

As reflected in the submissions here, it appears to focus on methodology and presumes that the testimony of different witnesses necessarily deserves parallel or symmetrical analysis. In my view, the focus must always be on whether there is reversible error in the trial judge's credibility findings ... In appellate cases that have accepted an uneven scrutiny argument, there was some specific error in the credibility assessments: ... As shown in Howe , uneven scrutiny easily overlaps with other arguments for why a trial judge's credibility findings are problematic.

It is therefore unsurprising to see uneven scrutiny tacked on to arguments like insufficiency of reasons, misapprehension of

evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict... In this case, it is clear that the respondents have neither demonstrated that the trial judge unevenly scrutinized the evidence in the courseof his credibility assessments nor that any alleged error in reasoning figured in his ultimate conclusion as to the respondents' guilt... Therespondents simply invite this Court to reassess the trial judge's credibility determinations.

Even based on the law of uneven scrutiny as itexists in appellate courts today, there is no basis for this Court to do so. (citations omitted). [91] The trial judge here acknowledged that there were some faults in the complainant’s evidence, but her evidence and theevidence from her mother and Mr. Oldfield was “inconsistent with an animus so sharp as to motivate a false complaint of sexual assault”(Transcript 21 12 02, p 12, ll 20-21). Further, he concluded that the inconsistencies in her evidence was not the kind that causes seriousreservations about truthfulness and reliability.

He also noted instances where the evidence of the complainant’s mother bothcorroborated and differed from the complainant’s evidence. The trial judge’s assessment of Mr. Oldfield’s credibility similarly addressedthe weaknesses of his testimony, including the inconsistencies within his own evidence and the likelihood of his assertions. [92] I conclude Mr. Oldfield has not pointed to "something sufficiently significant" in the Reasons or record that establishes thetrial judge employed a "faulty methodology" in deciding credibility.

Nor is there anything in the Reasons that indicate that he used “twodifferent measuring sticks.” i. Did the trial judge err by not recalling the complainant’s mother? [93] Further, Mr. Oldfield argues that the trial judge should have recalled the complainant or her mother to address the Brown vDunn problem. That problem arose when Mr. Oldfield testified that the complainant’s mother told him the complainant was a liar andtrouble-maker, but that evidence had never been put to the mother in cross-examination. In dealing with whether Mr. Wolsey providedineffective counsel, I concluded that Mr.

Wolsey had reasonably chosen not to cross-examine the mother on this issue. At issue now iswhether the trial judge should have recalled the mother to have the questions put to her, and that his failure to do so led to faultyinferences that then affected his credibility assessment of Mr. Oldfield. Mr.

Oldfield argues that the failure to recall the witnesses was anerror of law requiring a new trial, but points to no authority for that proposition. [94] The Alberta Court of Appeal in R v Werkman, 2007 ABCA 130 (at para 9) discussed the remedies for a breach of the rule inBrown v Dunn, saying that the trial judge has several potential remedies that fall within their discretion, including taking into accountthe failure to cross-examine the witness when assessing the weight of the evidence or granting leave to call witnesses in reply.

InWerkman, the appellant argued that the trial judge should have recalled the Crown witnesses, but the Court of Appeal disagreed, notingthat Werkman’s counsel had notice of the Crown’s position that the rule was breached and he did not himself apply to recall thewitnesses.

Instead, Werkman’s counsel at trial argued that any breach was minor and should at most go to the weight of the evidence (atpara 10). [95] The Court of Appeal stated (at para 11): A trial judge who calls (or recalls) witnesses of his or her own motion creates a number of problems and complications, includingfragmentation of the Crown's case and of each witness' evidence. Cf. R. v. Giroux (2006) (ON CA), 210 O.A.C. 50,207 C.C.C.(3d) 512 (para. 48); R. v. Paris (2000) (ON CA), 138 O.A.C. 287, 150 C.C.C.(3d) 162 (para. 18).Avoiding those problems has some weight.

See also R v Clark, 2015 ABCA 160 at para 15. [96] Here, Mr. Wolsey, the Crown, and the trial judge discussed the remedy for breach of the rule. The Crown did not want thewitnesses recalled, and the trial judge concluded it was not necessary.

His reasons on this point indicated that he believed that had themother been recalled to give her opinion about her daughter’s truthfulness, it would have been of minimal probative value, unless sheprovided additional evidence that could reasonably lead a trier of fact to conclude that the complainant was a frequent liar or anunreliable narrator (Transcript 21 12 02, p 11, ll 22-29). Given the mother’s answers in cross-examination as Mr.

Wolsey probed forsome possible indications that the complainant was unreliable, it is likely that such additional evidence would not have beenforthcoming. [97] It is true that the trial judge did suggest that Mr. Oldfield’s evidence on this point was a base attack on the complainant’scharacter intended to bolster his defence.

However, the trial judge’s reasons reveal that this was secondary to his assessment ofcredibility, and he expressly noted that the none of the questions that ran afoul of Brown v Dunn were “so central to this case that trialfairness requires that the complainant or [her mother] be recalled before me” (Transcript 21 12 02 at p 10, ll 22-24). Further, the trialjudge indicated he found Mr.

Oldfield’s story unbelievable based on his inconsistent evidence about whether he ever touched thecomplainant’s chest or breast and his description of standing by the open door talking before he went outside to smoke. [98] I do not consider the alleged failure to recall the witnesses to be an error of law requiring a new trial, and find that the trialjudge exercised his discretion in this area after hearing from both the Crown and the defence. [99] I conclude, based upon reviewing the trial judge’s reasons as a whole, that Mr.

Oldfield has not established that the trial judgeapplied uneven scrutiny to his evidence. 4. Conclusion on whether the trial judge committed errors [100] I conclude that the trial judge did not err and the verdict stands. D. Was the sentence demonstrably unfit?

1. Did the trial judge err by making an unreasonable inference? [ 101 ] To set aside a sentence, an appellate court must find that the sentence was demonstrably unfit or that there was an error of principle, a failure to consider a relevant factor or an overemphasis on the relevant factors. [ 102 ] Mr. Oldfield argues that the trial judge “literally puts words in Mr. Oldfield’s mouth” by assuming what Mr. Oldfield said to the expert psychologist whose evidence formed part of the sentencing submissions. The language Mr. Oldfield points to is: It is also clear that this version of the events Mr.

Oldfield is retelling to Dr. Pugh can only be characterized as “it was accidental, and she overreacted”. (Transcript 22 09 14, p 7, ll 28-30) . [ 103 ] On review of the context of this statement, I find that the trial judge made a reasonable inference that Mr. Oldfield had said something to Dr. Pugh to the effect that the touching was accidental and the complainant was upset. He read the following passage from Dr. Pugh’s report: He admits that he may have --- may have --- reached over and touched the necklace and in that effort may have brushed across her chest.

He believes in retrospect this most likely upset her and led to the charges that are presently before the Court. When asked if he thought his hand might have slipped into her sports bra, he admits it might have. He also added, “I did not do it intentionally.” He reports that he feels very shocked and ashamed that she interpreted his behaviour as she did.

He very much regrets this conduct and that he lacked the vigilance that generally law-abiding adult males have in their own mindset when relating with teenage girls. (Transcript 22 09 14: p 7, l 42, p 7, ll 1-10) [ 104 ] I find no error by the trial judge in inferring that Mr. Oldfield told Dr. Pugh that the incident, if it happened, was accidental. 2. Inappropriate range [ 105 ] Mr. Oldfield argues that the trial judge erred by doing what the Supreme Court of Canada has cautioned against in R v Parranto , 2021 SCC 46 . Mr.

Oldfield suggests that the trial judge did not individualize the sentence and did not consider the decision in Parranto and whether he should depart from the range of available sentence ranges. [ 106 ] The trial judge considered the following: • The sentencing provisions of the Criminal Code o s 718: the fundamental purposes of sentencing o 718.1: denunciation and deterrence of abuse of persons under 18 years old; o 718.2: sentences should be increased or reduced to account for aggravating and mitigating factors. • The finding in R v Friesen , 2020 SCC 9 that deterrence and denunciation are predominant factors when sentencing for child sexual assault. [ 107 ] The trial judge then addressed the aggravating factors, including that Mr.

Oldfield was in a position of trust, the complainant’s age, the physical, psychological, and financial effects of the actions on the mother and complainant, Mr. Oldfield’s lack of insight into his actions, and that the offence occurred in the complainant’s home. As mitigating factors, he noted Mr.

Oldfields prior good character, lack of a record, his education and a good work record, and the childhood trauma he suffered in Sierra Leone. [ 108 ] The trial judge then considered the collateral consequences of sentencing, citing R v Pham , 2013 SCC 15 , and he particularly noted the Supreme Court of Canada’s comments on the importance of parity and individualization. He quoted from Pham : This Court has repeatedly emphasized the value of individualization in sentencing...

Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigating circumstances ... as well as objective and subjective factors related to the offender’s personal circumstances (Citations omitted). [ 109 ] He continued to quote Pham (at para 11, 13 and 18 ): In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender.

However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender ( s. 718.2 (

a) of the Criminal Code ). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders ( s. 718 (

d) of the Criminal Code ). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation... ... Therefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case... ...

It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender.

Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate. [ 110 ] The trial judge then summarized the principles from Pham and other case law, concluding that a two-step process was required when considering the immigration consequences on a particular sentence.

The first step is to determine a fit and appropriate sentence, and the second is to then consider the impact, if any, of collateral immigration consequences on the sentence, citing R v Lopez-Orellana , 2018 ABCA 35 at para 24-26 and R v Sandhu , 2022 ABQB 332 at paras 178-179 . [ 111 ] The trial judge then proceeded to consider the first step – to determine a fit and appropriate sentence by considering the sentencing range in both Alberta case law and other jurisdictions. He concluded that the range was between 9 and 15 months.

He then addressed the mitigating factors: a less serious breach of trust than in some of the other cases, it was only a single incident, and no grooming was involved. [ 112 ] At the second step, he noted that there was some risk of immigration consequences, but not enough to give it any great weight. He also considered Mr. Oldfield’s loss of contact with his child, but because Mr. Oldfield had not given any indication that he had the necessary insight to rehabilitate himself, the loss of contact was inevitable when convicted of a sexual offence. The trial judge held that to give much weight to the welfare of Mr.

Oldfield’s family would be contrary to Pham and would be discounting the harm to the complainant’s family. [ 113 ] The trial judge then concluded that the fit sentence would be 10 months, a 10 year SOIRA order, and 24 months of probation. [ 114 ] In my view the trial judge clearly understood the sentencing principles from both the Criminal Code and the jurisprudence. His failure to cite Parranto did not mean he did not follow the Court’s instruction to individualize Mr. Oldfield’s sentence.

He addressed the mitigating and aggravating factors, finding that some aggravating factors, like breach of trust, were not as serious as in other cases. He then addressed two collateral consequences, concluding that he would not give them much weight in the analysis. 3. Conclusion on whether the sentence is fit [ 115 ] I conclude that the sentence imposed on Mr. Oldfield was not unfit nor was it “clearly unreasonable”, “clearly excessive or inadequate” or “falling outside the acceptable range of orders”.

Nor did the trial judge make an error in principle, nor fail to consider relevant factors, nor unreasonably assess any aggravating or mitigating factors. E. Conclusion [ 116 ] The appeal of Mr. Oldfield’s conviction and sentence is dismissed. [ 117 ] The SOIRA application brought at the same time will be determined in other reasons. [ 118 ] Mr. Oldfield will surrender himself into custody at the Edmonton Remand Centre by 2:00PM on Monday, December 18, 2023. Heard on the 29 th day of May, 2023. Dated at the City of Edmonton, Alberta this 28 th day of November, 2023. M.E. Burns J.C.K.B.A.

Appearances: Rayne Thompson Alberta Justice for the Crown Zachary Al-Khatib

Liberty Law for the Accused _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Justice M.E. Burns _______________________________________________________ Added Paragraph 118 - Mr. Oldfield will surrender himself into custody at the Edmonton Remand Centre by 2:00PM on Monday, December 18, 2023. Added Publication Ban