2012 NBCA 64, 2012 NBCA 64

COURT OF APPEAL OF NEW BRUNSWICK 67-11-CA E.K.M. APPELLANT E.K.M. APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE E.K.M. v. R., 2012 NBCA 64 E.K.M. c.

R., 2012 NBCA 64 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Robertson The Honourable Justice Richard CORAM : L’honorable juge en chef Drapeau L’honorable juge Robertson L’honorable juge Richard Appeal from a decision of the Provincial Court: March 16, 2011 (conviction) April 28, 2011 (sentence) Appel d’une décision de la Cour provinciale : Le 16 mars 2011 (déclaration de culpabilité) Le 28 avril 2011 (prononcé de la sentence) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: February 16, 2012 and May 8, 2012 Appel entendu : Le 16 février 2012 Le 8 mai 2012 Judgment rendered: July 26, 2012 Jugement rendu : Le 26 juillet 2012

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Robertson The Honourable Justice Richard Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Richard Counsel at hearing: For the appellant: John M. Henderson For the respondent: John A. Henheffer Avocats à l’audience : Pour l’appelant : John M. Henderson Pour l’intimée : John A. Henheffer THE COURT The appeal against conviction and the application for leave to appeal sentence are dismissed.

LA COUR Rejette l’appel de la déclaration de culpabilité et la demande en autorisation d’interjeter appel de la peine. The judgment of the Court was delivered by DRAPEAU C.J.N.B. I. Introduction [ 1 ] The appellant challenges his conviction in Provincial Court on three charges of sexual assault ( s. 271(1) (

a) of the Criminal Code ). The particulars, as set out in the Information, are as follows:

(1) Count #1: sexual assault on R.R. between January 1, 1999 and December 31, 2004 “at or near” Sussex, in the County of Kings and Province of New Brunswick;

(2) Count #2: sexual assault on J.R. between November 1, 2006 and December 15, 2006 “at or near” Sussex; and

(3) Count #3: sexual assault on S.S. between January 1, 2007 and February 4, 2009, also “at or near” Sussex. S.S. is the appellant’s former spouse. R.R. and J.R. are nephews of S.S. During the period referenced in Count #1, R.R. was a minor, as was J.R. in the timeframe specified in Count #2. [ 2 ] All three complainants testified at trial. Their evidence detailed acts on the appellant’s part that, if believed, gave rise to his criminal liability for “sexual assault” within the meaning of s. 271(1)(

a) and the reach of the counts in the Information. That said, the sexual assaults described by J.R. and S.S., while extremely serious, paled in comparison to the abuse R.R swore he endured over an extended period of time, beginning before he reached puberty and stretching into his early adolescence. [ 3 ] The appellant testified in his own defence.

He denied having engaged in any criminal misconduct vis-à-vis any of the complainants and claimed he was outside the Province during a significant part of the period during which, according to R.R., the sexual assaults targeted by Count #1 were taking place. [ 4 ] In thorough reasons for decision, the trial judge explained why he believed the evidence of the complainants and disbelieved the evidence of the appellant. Ultimately, he concluded the Crown had established the appellant’s guilt

beyond a reasonable doubt with respect to each count. The judge sentenced the appellant to: (1) imprisonment for five years, less 44 days of remand, on Count #1 (sexual assault on R.R.); (2) a one year concurrent term of imprisonment on Count #2 (sexual assault on J.R.); and (3) a six month concurrent term on Count #3 (sexual assault on S.S.).

He also tacked on the ancillary orders that are routinely made in cases of this sort. [ 5 ] The first Amended Notice of Appeal features one conviction-related allegation of error on the part of the trial judge, and it is that he resorted to an erroneous methodology in assessing credibility. According to the appellant, that assessment was made by first considering the testimony of the complainants, a sequence said to be at odds with the approach espoused in R. v. Moose , 2004 MBCA 176 , [2004] M.J.

No. 415 (QL). [ 6 ] At the outset of the hearing on February 16, 2012, the appellant sought and was granted an adjournment to pursue a claim of ineffective representation on the part of his counsel at trial. Although the appellant subsequently filed a supplementary submission on point, he has not offered any evidence in support of this claim.

Consequently, the Court is asked to make a finding of ineffective representation solely on the basis of the trial transcript. [ 7 ] Should his appeal against conviction fail, the appellant seeks leave to appeal the five-year penitentiary term imposed with respect to Count #1 (sexual assault on R.R.). The prompting complaint is rooted in the view that the sentence is inordinately long, a result which, in the appellant’s submission, is attributable to the sentencing judge’s mischaracterization of the sexual assaults in issue.

There is no cross-appeal against any feature of the orders made and the sentences imposed in the court below. [ 8 ] For the reasons that follow, I would dismiss both the appeal against conviction and the application for leave to appeal sentence. II. The Context [ 9 ] As noted, the appeal against conviction arises out of the “guilty” verdicts entered in Provincial Court on three counts of sexual assault. Each charge relates to a distinct victim: the appellant’s former wife (S.S.) and two of his nephews by that marriage (R.R. and J.R.). The events underlying the charges would have occurred within a ten-year span.

Those involving R.R. took place from the summer of 2000 until 2004 (when he was between 12 and 16 years of age); the episodes relating to J.R. unfolded over the course of a single day in November of 2006 (when he was 14 years old); and the several incidents implicating S.S. began in late 2006 and ceased in February of 2009. [ 10 ] The appellant is a 36-year-old former factory worker, who immigrated to Canada from Thailand, his country of birth, in August of 1999 shortly after marrying S.S., a native New Brunswicker. Initially, the couple lived in Elgin, New Brunswick.

In May of 2000, they moved to Sussex with their newborn daughter. In August of 2000, the family moved to the Knightville Road area, just outside Sussex. In October of the same year, the couple moved to an apartment building in Sussex (“the Sussex apartment”). I pause to record this is where, according to R.R.’s testimony, most of the sexual assaults targeted by Count #1 took place. In July of 2002, the couple moved back to Thailand.

The appellant returned to the Sussex area in May of 2003 and was joined by S.S. a few months later. [ 11 ] There are two children of the marriage, a daughter born in 1999 and a son born in 2005. The appellant and S.S. separated in December of 2006. [ 12 ] In his direct examination, R.R., who was then 23 years of age, recounted a litany of sexual activities initiated by the appellant over the course of several years. These activities, which began before R.R. reached puberty, ranged from inappropriate touching to full sexual interaction, including fellatio and sodomy.

Most encounters took place during lunchtime rendezvous at the Sussex apartment, which was near R.R.’s school. It was R.R.’s recollection that he met the appellant at that location virtually every school day and that they often watched pornographic movies while the appellant touched him inappropriately before fellating him. These instances of sexual assault subsided somewhat once the appellant’s infant daughter became mobile and began entering the room in which they were taking place.

According to R.R., the appellant worried that his daughter was becoming old enough to recall and verbalize what she might have seen. It was R.R.’s evidence that, despite those concerns, the sexual abuse continued, albeit at a reduced frequency, until the appellant returned to Thailand in July of 2002. R.R. also claimed the appellant fellated him in public places, such as parks and parking lots, and that he prevailed upon R.R. to sodomize him on at least two occasions. As well, R.R. testified

that, in the summer of 2003, he visited S.S.’s sister in Calgary and that the appellant, who had temporarily moved there to work, performed oral sex on him. [ 13 ] The trial judge highlighted the following features of R.R.’s cross-examination: […] On cross-examination R.R. told the Court that the accused told him not to tell anybody about what was occurring. […] R.R. was asked why he did not say no to the accused. In reply R.R. testified that he was too young to understand what had occurred and because the accused was his uncle he trusted him. Also he admitted that he became addicted to what was taking place.

Later R.R. became ashamed of what was happening and since that time has suffered mental health issues and has been seeing mental health counsellors and been on prescription medications. […] [ 14 ] Unlike R.R., his younger brother, J.R., never had a close relationship with the appellant. J.R.’s evidence is that the appellant sexually assaulted him in November of 2006, when he was 14 years old. The episode targeted by Count #2 began at J.R.’s home with the appellant approaching J.R. from behind and massaging his neck while he was busy using the family computer.

This unexpected contact quickly led to caresses under J.R.’s shirt, kisses to his neck area and touching his penis. It was at this point that J.R. resisted and exited the room. Despite this troubling experience, the evening progressed as anticipated, and J.R., one of his friends and the appellant had dinner at the latter’s house and watched a movie. However, after J.R.’s friend was returned to his home, the appellant told J.R. he wanted to talk. As it turned out, the discussion was entirely sexual in tenor, involving references to masturbation and penis size.

Finally, the appellant parked the car in a secluded area and prevailed upon J.R. to expose himself and allow his penis to be fondled. Within a very short while, J.R. rebelled once again, at which point he was brought home and warned not to speak about what had happened. It was J.R.’s evidence that the appellant stated he had engaged in sexual activity with R.R.

The trial judge described what happened following the incident involving J.R.: […] The next day J.R. saw the accused at church and the accused told him that “God told me it was okay about what had occurred.” No further incidents ever occurred between the accused and J.R. J.R. tried to avoid being alone with the accused thereafter. J.R. felt uncomfortable about this series of events and could not understand what had occurred. This discomfort let to J.R. a few days later contacting the kids help line on the internet where he sent an e-mail reporting the occurrence.

J.R. received two e-mail replies to his e- mail but never replied as he didn’t want to deal with it at that time. However, three weeks later in December of 2006 the RCMP arrived at his home, when J.R. was not home, and spoke to his parents. Apparently the operators of the kids help line reported J.R.’s allegations to the local R.C.M.P.

As a result of this J.R. and R.R. met with the R.C.M.P. in January of 2007 and gave sworn videotaped statements about what had occurred to them […]. [ 15 ] As for S.S., she testified that despite her repeated objections, the appellant persisted in touching her for a sexual purpose, both before and after their separation in 2006. These instances of sexual touching took place both in private and in public. The trial judge noted they ceased “if S.S. yelled loud enough”. S.S. added the appellant told her, while they were in Thailand and he was under the influence of drugs, that he had sex with R.R. in Canada.

The trial judge summarized S.S.’s explanation for not reporting this admission of sexual misconduct to the police: […] At the time S.S. was not convinced it was true because the accused often was delusional because of his drug addictions and would tell her these wild, unbelievable like stories. Also S.S. was experiencing a lot of physical and emotional violence and abuse by the accused when he was on drugs. S.S. never questioned the accused specifically about what he meant by having sex at that time.

The accused would also tell her that he taught young boys to have sex. […] [ 16 ] In his testimony, the appellant denied ever engaging in any inappropriate conduct with R.R., J.R. or S.S. He characterized their damning evidence as lies driven by ill will, vengeance and other improper motives. He also stated he was in Alberta and Thailand for several months during the time R.R. testified to being sexually assaulted in the Sussex apartment. The trial judge summarized the appellant’s testimony as follows: […] He is currently age 35 and resides in Moncton and is employed at a local factory which produces diapers.

He has a grade six education from Thailand and took a welding course after coming to New Brunswick. […] The accused reviewed his relationship with S.S. and the various locations they resided during their years of marriage. The accused completely denies each and every allegation of sexual assault by R.R. and J.R. including ever discussing topics of sex, watching gay or porn movies, or purchasing beer. The only comment that the accused admitted was teasing about big shoes and big hands meaning having a big penis.

Respecting the allegations of sexual assault by S.S. the accused states that his advances at times were accepted by S.S. and at other times they were not. The accused states that he always stopped such advances when S.S. told him to stop. He testified that at times S.S. would walk around their home naked – her home naked which S.S. admitted in her testimony and that he felt when she did this she was encouraging him to touch her. The accused testified at times S.S. pretended she didn’t want him to touch her but he felt and believed that she was playing a game and really wanted the opposite.

The accused believes that the terrible allegations of sexual assault by R.R. and J.R. are the result of their

family, and particularly S.S.’s sister and their mother, wanting the accused to return to Thailand. He believes that they want this becauseof the physical and emotional abuse he perpetrated against S.S. while he was addicted to drugs while living in Thailand in 2005 andbefore. Also he testified that R.R. witnessed him holding a knife to the throat of S.S. when he visited Thailand. He believes that may beanother reason why R.R. has made these allegations.

The accused believes that R.R. only ever came to his residence two or three times.The accused told the Court that he worked in Western Canada in October of 2001 for six to seven months until he broke his ankle in2002 and returned to Sussex.

The accused denied telling S.S. he had sex with R.R. back in Canada or telling J.R. he had had sex withR.R. [17] The trial judge offered the following explanation for his rejection of the appellant’s evidence oncontroversial points and his acceptance of the complainants’ account of the salient events: […] I have carefully listened and considered all of the evidence presented at trial. I have come to the conclusion that I do not believe theevidence of the accused. Respecting the evidence of R.R. and J.R., I found their evidence credible, reliable, truthful, and believable.

I donot believe his evidence nor do I believe his explanations respecting the allegations of S.S. R.R.’s testimony was very candid about howhe became addicted to this sexual satisfaction he was experiencing. He was at a very young age when these assaults commenced bysomeone whom he trusted as an uncle and family member. I found R.R.’s ability to observe, recall and recount these horrible events anddetail impressive. As a result I believe his evidence to be reliable. Similarly the evidence of J.R. is straightforward and unexaggeratedand he was responsive to questions in my view.

J.R. was able to accurately describe the events of the day when he was assaulted. Hisfirmness of memory and recounting the facts of that day were plausible and appeared honest to me. Neither R.R. nor J.R. were seriouslychallenged in their testimony or discredited. Both R.R. and J.R. had specific facts which appeared to assist them in remembering thedetails of these events. Those memorable facts in my view add credibility to their evidence as you would expect those details to beremembered by them.

For example, R.R. had the memories of attending the accused’s residence during the lunch hour on multiple schooldays or being in a tent or in Calgary or in the parking lot of a Moncton Chinese restaurant when these assaults occurred. Further hisrecollection of the accused buying beer and playing porn movies would be unusual events for an uncle to do for a young child and wouldbe remembered. J.R. recalls his specific memory of watching a movie with his friend and the subsequent drive home and the stopping ofthe vehicle in a dark wooded area when he was assaulted.

Furthermore these assaults on R.R. and J.R. occurred while they were eachalone with the accused. They were both young at the time and I find their memories good in what they described. I believe a reasonableinference can be drawn; these assaults would not have been forgotten by R.R. and J.R. Respecting the allegations of S.S., I accept theargument that the accused was initially somewhat confused on whether S.S. consented to his touching which the accused believed wasplayful in nature. He had always done this while they were together before they separated in December of 2006.

However, I accept theevidence of S.S. that she spoke to him several times about the inappropriateness of the behaviour after they separated. The accused wasaware she was angry at him when he continued and understood when she told him no and to stop. I believe those conversations occurredbetween S.S. and the accused and that the continuation afterwards of the inappropriate touchings took place, which, in my view, were ofa sexual nature and without the consent of S.S. The accused argues that these allegations were made for purposes of having the accuseddeported from Canada.

He argues that S.S., her sister’s family, R.R. and J.R. all have reasons to have him leave the area. Reasons healleges are that they all were aware of the physical and emotional abuse he caused S.S. while living in Thailand prior to their return toSussex in 2005. The accused points to the evidence that S.S. and her sister’s family offered to pay for his travel costs to return toThailand, however, the accused wanted to stay in New Brunswick nearby his children.

The accused believes that S.S., R.R. and J.R. thenmade these allegations of sexual assault knowing that if he was convicted of them he would likely be deported. The Court has consideredthis theory and rejects it. I think it is reasonable based on the abuse that S.S. experienced and also after becoming aware of the assaultson R.R. and J.R. that S.S. and her family would want no contact with the accused. I think it is reasonable for them to suggest he return toThailand to be in a country he was familiar with and where he had family and friends.

If he had left they also may have been spared thepublic spectacle of a trial and of giving testimony in which they would have to relive these horrible events of which they are quiteunderstandably ashamed and uneasy about discussing. The Court also believes there are additional facts which lead to its conclusion thatthe accused committed these assaults. These reasons include the following:

a) it must be remembered that although J.R. reported theassault on him to the kids help line he did not reply to two e-mails which replied to his report. He also did not report this to the R.C.M.P.It was the R.C.M.P. who contacted him and his family.

b) neither did R.R. make any report to the R.C.M.P.

c) I think it is reasonable thatboth boys were ashamed and unsure of whether they wanted to report these assaults against a family member.

d) If you accept the theoryof the accused that they reported these assaults to the police in an attempt to have him deported, you would have expected the assaults tohave been reported to the police and repeated urging by the boys to have the accused charged. This is not what occurred.

e) The evidencethat the accused told both S.S. and J.R. that he had sex with R.R. which the Court accepts further corroborates the assaults havingoccurred. Although this evidence may have been insufficient to convict by itself, it adds credibility to the overall evidence of the victims,and

f) The evidence of the accused that R.R. only had lunch in his residence three to five times in total is totally inconsistent with theevidence of R.R., S.S. and the father of R.R. who also testified that R.R. was at the residence on a frequent basis. I accept that R.R. wasthere on many occasions over the two year period. He was attending the nearby school.

Testimony of the accused on this point hurts hiscredibility. […] [18] In reaching the conclusion that guilt had been established beyond a reasonable doubt, the judgeapplied the following legal framework: For this Court to find the accused guilty of these offences the Crown must prove the elements of the offences beyond a reasonable doubt.Those elements are as follows:

a) that the accused intentionally applied force to R.R., J.R. and S.S.,

b) that he did so without theirconsent,

c) that he knew they were not consenting, and

d) that the force was sexual in nature. The evidence of R.R., J.R. and S.S., ifaccepted by this Court, would in my view clearly constitute sexual assaults. The accused has denied all their allegations. The issue thenbecomes one of credibility. In R. V. C.L.Y., 2008 SCC 2 , [2008] 1 S.C.R. 5, a decision of the Supreme Court of Canada, Justice

Abella states at paragraph 6: “This Court has consistently warned that verdicts of guilt should not be based on ‘whether [triers of fact]believe the defence evidence or the Crown’s evidence.’ Rather, the paramount question remains whether, on the whole of the evidence,the trier of fact is left with a reasonable doubt about the guilt of the accused.” In the case of R. v.

W.(D.), (SCC), [1991]1 S.C.R. 742, a 1991 decision of the Supreme Court of Canada, the Court suggested that when the issue is one of credibility and anaccused testifies, the Court should apply the following steps to assist in determining reasonable doubt: 1) if the Court believes theevidence of the accused, the Court must acquit; 2) if the Court does not believe the testimony of the accused but is left with reasonabledoubt by it, the Court must acquit; and 3)even if the Court is not left in doubt by the evidence of the accused, it must ask itself whetheron the basis of the evidence which the Court accepts, is the Court convinced beyond a reasonable doubt by that evidence of the guilt ofthe accused.

Reasonable doubt has been defined by the Supreme Court of Canada in the case of R. v. Lifchus, (SCC),[1997] 3 S.C.R. 320, a 1997 decision. The Court in that case said in these terms: 1) a reasonable doubt is not a doubt based uponsympathy or prejudice; 2) rather it is based upon reason and common sense; 3) it is logically connected to the evidence or the absence ofevidence; 4) it does not involve proof to an absolute certainty.

It it is not proof beyond any doubt, nor is it imaginary or frivolous doubt;5)more is required than proof that the accused is probably guilty; and 6) proof beyond a reasonable doubt is closer to absolute certaintythan it is to probable guilt. Now I turn to my analysis and conclusion. I have carefully listened and considered all of the evidencepresented at trial. I have come to the conclusion that I do not believe the evidence of the accused. Respecting the evidence of R.R. andJ.R. I found their evidence credible, reliable, truthful, and believable.

I do not believe his evidence nor do I believe his explanationsrespecting the allegations of S.S. […] So, in conclusion after considering all the evidence presented at trial, I do not believe the evidence of the accused and am not left indoubt by it. I do accept as accurate and truthful the evidence of R.R., J.R. and S.S.

I conclude the Crown has proven beyond a reasonabledoubt all the essential elements of sexual assault respecting each count described in the Information therefore I find the accused guilty ofsexual assault on counts one, two, and three. [19] As is so often the situation in sexual assault cases, the convictions rest upon the testimony ofthe complainants.

In his hand-written original Notice of Appeal, the then self-represented appellant complained the charges were theproduct of “false allegations and false statements”, which he alleged were motivated by a desire on the part of S.S. to separate him fromtheir children. In the second and final Amended Notice of Appeal, which was prepared by his current counsel and filed after thecontinuance granted by this Court on February 16, 2012, it is claimed the trial judge erred in finding against the defence on the issue ofcredibility, an error that is linked to his employment of an inappropriate methodology.

In addition, it is contended a new trial is requiredby reason of the “ineffectiveness of [the appellant’s] trial lawyer”. III. Analysis and Decision A. Conviction

(1) The issue of credibility and the appropriate methodology for its determination [20] In Moose, it was suggested trial judges should determine credibility by analyzing the evidenceof the accused before turning to the complainant’s contradictory version of events. That sequence was favored for the followingreasons: The danger in dealing with the credibility of the complainant first is that the trial may turn into a contest between the credibility of thecomplainant and the accused and the question of whether the accused’s testimony, though disbelieved, might raise a reasonable doubt isoverlooked.

It is preferable to decide on the credibility of the accused before that of the complainant in order to avoid the inadvertentshifting of the burden of proof which occurs if there is no genuine determination of whether the testimony of the accused raises areasonable doubt. [para. 20] [21] In R. v. T.V.B., 2005 NBQB 473, [2005] N.B.J. No. 564 (QL), Grant J. emphasizes Moose doesnot purport to make mandatory any particular sequence in the assessment of conflicting testimonial accounts. He also points out that thesequence-related views expressed in Moose are not universally shared.

In that regard, Justice Grant adverts to the views expressed byDoherty J.A. in R. v. Carrière, (ON CA), [2001] O.J. No. 4157 (C.A.) (QL):

I pause in my review of the trial judge’s instructions to address a submission made by counsel in oral argument. If I understand himcorrectly, he argues that the decision in R. v. W.(D.), supra, mandates that where the accused testifies, the jury must first consider theappellant’s evidence and decide whether that evidence is believed or raises a reasonable doubt before going on to the rest of the evidence. I do not think that R. v. W.(D.), supra, stands for that proposition.

As a matter of common sense, a jury could not assess an appellant’sevidence, except in the context of the rest of the evidence. […] The instruction suggested by Cory J. does not advise the jury to begin with the evidence of the accused. Rather, it tells them that whenassessing the credibility of the accused, they should approach it in the three stages outlined in the model charge. Properly understood, R.v. W.(D.), supra, does not impose any limits on how the jury proceeds with its deliberative process. [paras. 47-50] See, as well, R. v.

D.A.M., 2010 NBQB 80, 356 N.B.R. (2d) 367, per Ferguson J., at paras. 53 and 56. [22] The Moose approach has failed to attract followers elsewhere. In R. v. Schauman, 2006 ONCJ304, [2006] O.J. No. 3425 (O.C.J.) (QL), Fairgrieve J. offers the following criticism: The difficulty with such an approach, it seems to me, is that the assessment of credibility is not a linear reasoning process whereindividual factors are given consideration on a seriatim basis or where one version of events is assessed in a vacuum without reference tothe rest of the evidence.

Rather, I think, determinations of credibility require an analysis of the evidence that involves the simultaneousweighing of a multitude of factors. While reasons may have to be organized and presented in a coherent way, it is difficult to accept thatappellate courts have imposed straightjackets on trial judges requiring that witnesses whose credibility is at issue should be considered ina particular order, isolated from the factual context in which at least some tentative assessment of the reliability of other confirmatory orcontradictory evidence may have been made.

The most important factor in assessing a witness’s credibility, I think, remains the assessment of whether the testimony seems plausiblein terms of the inherent likelihood that events occurred as the witness described them. This involves an exercise of what has been referredto as common sense and judicial experience.

As part of that process, it seems to me, a court would inevitably consider the extent to whicha particular witness’s evidence accorded with other factual findings which were either not in dispute or were compelled by other evidenceaccepted or considered reliable by the court. [paras. 6-7] [Emphasis added.] [23] For my part, I see much wisdom in the views expressed by Mitchell C.J.P.E.I., for the Court inR. v. Ellis, 2006 PESCAD 25, [2006] P.E.I.J.

No. 60 (QL): […] As a further measure of insurance against wrongful convictions in these cases, the Manitoba Court of Appeal has taken the positionthat it is preferable for the trier of fact to analyse the evidence of the accused before that of the complainant. See: R. v. L.(C.J.) supra andR. v. Moose, 2004 MBCA 176 , [2004] M.J. No. 415 (M.C.A.). This approach, so long as the accused’s evidence is consideredin the context of the evidence as a whole, might indeed be helpful as a means of ensuring that there is no accidental shifting of the burdenof proof.

However, I do not believe the procedure suggested by the Manitoba court should be considered mandatory. I agree with theview expressed by Dorothy J.A. in R. v. Carrière, (ON CA), [2001] O.J. No. 4157 (O.C.A.) at paras 48-51 that anaccused’s evidence must be assessed in the context of the evidence as a whole and that there ought not to be rigid rules about how a trierof fact deliberates. [para. 27] [24] Those views are in synch with R. v.

C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, where the followingobservations were made: The trial judge’s reasons reveal that she understood that a finding that the girl was credible did not mean that the onus shifted to theaccused to show that he was not guilty. I find it difficult to see how the sequence in which the trial judge set out her findings ofcredibility can be said to undermine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramountlegal principle like reasonable doubt. [para. 12]

[Emphasis added.] While the Court in C.L.Y. makes no explicit reference to Moose , it was undoubtedly alive to the controversy surrounding its advocacy of a first-in-time consideration of the testimony provided by the accused.

C.L.Y. was an appeal from a decision of the Manitoba Court of Appeal and the sequence-related observations reproduced above target Twaddle J.A.’s statement in dissent (cited at para. 4 of the Supreme Court decision) that “the acceptance of the complainant’s evidence before even considering that of the accused […] result[s] in at least a subtle shift of the onus of proof.” This statement largely echoes the concerns expressed in the Moose decision. That said, it bears noting the majority of the Manitoba Court of Appeal in C.L.Y. ( 2006 MBCA 124 , [2006] M.J.

No. 398 (QL) ) accepts that failure to follow the sequence recommended in Moose does not automatically entail reversal: “ Assessing the accused’s credibility prior to assessing the complainant’s credibility is not mandatory , but doing so will help ensure that the trier of fact does not lose sight of the principle of reasonable doubt” (para. 10) (emphasis added). [ 25 ] In my respectful judgment, there is simply no merit to the appellant’s objections to the findings of credibility made in the court below.

Stripped to their core, those objections are not sourced in errors of law or principle, but driven solely by a disagreement with the trial judge’s adverse findings, which, in my view and contrary to the appellant’s submission, flowed from the application of a legally correct framework and are solidly moored to the evidential record. That being so, those findings must stand (see R. v. R.P. 2012 SCC 22 , at paras. 10-12 ).

(2) The ineffectiveness of trial counsel [ 26 ] The appellant concedes his lawyer at trial is a well-respected and competent criminal law practitioner, a Queen’s Counsel no less. The appellant’s complaint is that his counsel provided representation at trial that fell below an acceptable standard; in the words of the appellant’s current lawyer, defense counsel simply “had a bad day”. [ 27 ] I begin the discussion of this issue by registering my full agreement with the observations of Richard, J.A., for a unanimous panel, in R. v.

Gardiner, 2010 NBCA 46 , 362 N.B.R. (2d) 179 : It is incontestable that, in the modern Canadian criminal justice system, a person who chooses to be represented by a lawyer has the right to the “effective assistance” of that counsel. This proposition goes to the very heart of the adversarial system upon which our criminal justice system is founded. It is a principle the Supreme Court of Canada recognized in R. v. G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520 , as a principle of fundamental justice that is “derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada, and ss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms ” (para. 24). It follows, therefore, that in some circumstances, the ineffective assistance of counsel at trial may form the basis for appellate intervention. However, the standard is high. To be successful in an appeal based on an ineffectiveness claim, an appellant must establish that his counsel’s “acts or omissions constituted incompetence” (the performance component) and that “a miscarriage of justice resulted” (the prejudice component).

Appellate interference is only justified when both components have been established. […] […] [I]n the course of a trial, defence counsel is called upon to make a number of strategic judgment calls, and judges should not lightly “second guess the tactical decisions of counsel” (see R. v. S.G.T. , 2010 SCC 20 , [2010] S.C.J. No. 20 (QL) , at para. 37 ).

As the Supreme Court said, “[i]n an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel” and there is “a ‘strong presumption’ that defence counsel are competent in advancing the interests of their clients” (para. 36). Appellate judges are likewise duty bound to apply that deferential approach. [paras. 1, 2 and 10] [ 28 ] In seeking to satisfy the performance component, the appellant points to what he contends are instances of ineffective submissions and cross-examination, particularly of R.R.

With respect to the latter, the appellant spotlights the following testimony by R.R.: A. Like I said most of the stuff happened at [the Sussex apartment]. That’s when most of the stuff happened at lunch time and on weekends.

Q. And just for the record when you say, “most of the stuff.” Could you tell us what you mean by stuff what was occurring? A. Mainly oral sex when I would go to his – his bedroom and basically lay on the bed, the mattress on the floor and he performed oral sex on me. Q. And how many times would this have happened when he performed oral sex upon you? A. Well it was 2002 and 2003 so like most if not two full school years I was going there three or four times a week even sometimes everyday for lunch.

So I don’t know how many days that works out to but it was beyond I can count in my own head. […] The appellant refers to his own testimony, in which he states that he was in Alberta from late October, 2001 until approximately May of 2002 and, on that basis, contends R.R.’s evidence that sexual assaults took place at the Sussex apartment in 2002 and 2003 was demonstrably inaccurate. He points to defence counsel’s omission to cross-examine and make specific submissions on the point as proof of incompetence.

I disagree for the following reasons. [ 29 ] First, there is no credible evidence that the appellant was in Alberta from late October, 2001 to May of 2002. The trial judge disbelieved the appellant’s evidence to that effect and the record, whether in first instance or at this level, features no other supporting evidence.

Moreover, despite being allowed ample time to pursue the claim of ineffective representation, the appellant has not offered one iota of “new” evidence, whether documentary or testimonial, that might impugn the trial judge’s credibility finding on point. [ 30 ] Second, R.R. readily acknowledged in his testimony that the appellant returned to Thailand in July of 2002 and only came back to the Sussex area well into 2003.

Thus, the trial judge and both Crown counsel and defence counsel would have understood that, in the exchange reproduced above, R.R. likely meant to refer to the years 2001 and 2002, and accidentally slipped in identifying 2002-2003 as the most intense period for the sexual assaults at the Sussex apartment.

For my part, I readily see the potential for an unfavorable reaction by the witness and, most importantly, by the trial judge if defence counsel had tried to score points by reason of that seemingly obvious and, in the larger scheme of things, insignificant slip. [ 31 ] Third, the record is mute on what discussions, if any, took place between the appellant and defence counsel regarding trial strategy.

The law in its wisdom presumes competence on the part of defence counsel, and an appellate judge would be foolhardy indeed to second-guess trial strategy in the absence of compelling evidence of malpractice ( see R. v. Gardiner ). [ 32 ] Moreover, there is no evidence to buttress the contention that a miscarriage of justice has resulted from any of the acts or omissions upon which the appellant now relies to substantiate his claim of ineffective assistance by defence counsel.

The trial judge’s reasons for decision show the guilty verdicts are amply supported by the testimony he found credible and reliable, a finding that was indisputably open to him. B. Sentence [ 33 ] As noted in my introductory remarks, the appellant was sentenced to imprisonment for 5 years, less 44 days of remand, on Count #1 (sexual assault on R.R.), a one-year concurrent term on Count #2 (sexual assault on J.R.) and six months concurrent on Count #3 (sexual assault on S.S.).

As well, the following ancillary measures were prescribed: (1) a “weapons” prohibition order under s. 109; (2) a forensic DNA analysis order pursuant to s. 487.051; and (3) a s. 490.012 order directing compliance with the Sex Offender Information Registration Act , S.C. 2004, c. 10, for 20 years. Counsel for the appellant confirmed at the hearing the application for leave to appeal targets only the penitentiary term imposed with respect to Count #1. [ 34 ] In R. v. Steeves , 2010 NBCA 57 , 360 N.B.R. (2d) 88, the Court set out the standard of review applicable to sentence appeals:

The jurisdiction of appellate courts on sentence reviews is delineated in s. 687(1) of the Criminal Code, which states: 687.

(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitnessof the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive, (

a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or (

b) dismiss the appeal. Thus, Parliament’s instruction to appellate courts is, at least from a textual standpoint, relatively straightforward: it is the fitness of theimpugned sentence that stands to be considered. Numerous pronouncements emanating from the Supreme Court of Canada make plainthat the concept of “fitness” is not limited to an assessment of quantum. Indeed, courts of appeal may be required to consider whether the sentence imposed is lawful.

The most obvious illustration of unfitnessas a matter of law involves the sentencing judge’s failure to comply with prescribed minimum or maximum punishments […] Of course,no deference is owed to the sentencing court’s quantum selection when it is challenged on a point of law. Appellate courts may also be called upon to determine whether the contested sentence reflects a proper application of the principles ofsentencing. Most of those principles are now codified in

Part XXIII of the Criminal Code. It is axiomatic that, while great deference isowed to the sentencing judge’s weighting of the relevant factors, correctness is the standard by which his or her understanding of thegoverning principles is reviewed on appeal. Finally, courts of appeal may engage in a consideration of the quantum itself. Here, once again, great deference is owed to the sentencingjudge’s judgment-call.

The sentence under consideration will be at risk of variation if, and only if, it is a substantial and markeddeparture from the sentence customarily imposed for similarly situated offenders committing similar crimes.

In sum, a court of appeal is not at liberty to substitute its view of fitness for that of the sentencing judge unless the sentence imposed isthe product of either an error of law or an error in principle, or unless it is clearly unreasonable […] If the sentence at issue is the resultof reversible error, the court of appeal bears the burden of prescribing the punishment that it considers fit in the circumstances. […] [I]n R. v. LeBlanc (G.A.) (2003), 264 N.B.R. (2d) 341, [2003] N.B.J.

No. 398 (QL), 2003 NBCA 75, the Court endeavoured to provideguidance to litigants and counsel, and to structure its own approach to sentence appeals by articulating the following analyticalframework: [...] intervention on appeal against sentence is inappropriate unless at least one of the following questions is answered affirmatively: (1)Is the sentence the result of an error of law?

(2) Did the sentencing judge err in principle in the exercise of his or her discretion?

(3) Isthe sentence clearly unreasonable having regard to the fundamental purpose and objectives of sentencing (s. 718), as well as theprinciples enunciated in sections 718.1 and 718.2 of the Criminal Code? As a practical matter, those three questions serve as a useful reminder of the limited role an appellate court is called upon to play inconsidering the fitness of a sentence. […] No one quarrels with the proposition that, absent legislation providing otherwise, the appropriate degree and kind of punishment is in thediscretion of the sentencing judge.

That discretion is explicitly recognized in s. 718.3(2) of the Criminal Code. Moreover, it is referencedin R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28 (QL) as a principled basis for appellate deference:

Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencingjudges for similar offenders and similar offences committed throughout Canada. See, e.g., R. v. Knife (1982), (SKKB), 16 Sask.R. 40 (C.A.), at p. 43; R. v. Wood, [1979] O.J. No. 855, 21 Crim. L.Q. 423 (Ont. C.A.), at p. 424; R. v. Mellstrom (1975), (AB CA), 22 C.C.C. (2d) 472 (Alta. C.A.), at p. 485; R. v. Morrissette (1970), (SK CA), 1 C.C.C.(2d) 307 (Sask. C.A.), at pp. 311-12; R. v. Baldhead, (SK CA), [1966] 4 C.C.C. 183 (Sask. C.A.), at p. 187.

But inexercising this role, courts of appeal must still exercise a margin of deference before intervening in the specialized discretion thatParliament has explicitly vested in sentencing judges. [paras. 20-28] [Citations omitted.] [35] In his comprehensive reasons for sentence, the trial judge made the following observationsregarding the facts underlying Count #1: […] In general terms count one involves the accused sexually assaulting the victim and his nephew R.R. on numerous occasions over afour year period. R.R. was aged twelve through sixteen during this time.

The assaults included oral and anal sex. […] The Pre-Sentence Report indicates that the accused is age 35. He was born and raised in Thailand and came to Canada in 1999 with hisspouse S.S. He was one of eight children. His mother was the primary caregiver as his father was an alcoholic and abusive towards hismother. The Pre-Sentence Report indicates that the accused did not like living in Canada and returned to Thailand in 2002 and again in2005. He later returned to Canada. The Pre-Sentence Report states he now misses Thailand and hopes to return there. The accusedadmits he has anger issues.

He states he feels persecuted by his ex-wife and her family. He acknowledges he became addicted to crystalmeth while living in Thailand in 2002. This led to him being abusive towards his wife. When his wife returned to Canada in 2005 hesought out addiction counselling and is now drug free. The accused has few friends in Canada although he has received support from alocal church leader. The accused completed his level six education in Thailand. The accused began but did not complete a weldingcourse in Moncton in 2009-2010.

The accused has no previous criminal record and he maintains his innocence with respect to theseoffences. As we have heard today these assaults have resulted in significant harm to the victims. The Victim Impact Statement of R.R.which was read aloud by S.S. indicates that as a result of the actions of the accused, at a young age he became defiant of authority whichresulted in discipline measures against him. He became depressed and required treatment from a psychiatrist. He was prescribed anti-depressants. Because of the abuse and seclusion from this peers he had few friends at school.

When the abuse stopped he became veryanxious and shameful. He now finds it difficult to trust anyone and this has made relationship building difficult. R.R. is now a fatherhimself but lacks the emotional strength to be with his child. R.R. has also been unable to complete his education because of the abusebut still has a large financial debt to repay. […] [The parents of R.R. and J.R.] also read aloud their Victim Impact Statement. They described how the events of their sons beingassaulted have changed their family forever.

They describe how [R.R.] has suffered extensively and how it has changed the person hewas as they have read, “he has lost friends, university dreams, and more importantly a large part of his childhood.

The financial effectshave been astronomical for our family as he continues to receive counselling and requires support from us.” […] The Court should also take into consideration any mitigating factors and the factors in the accused’s favour which I have considered arethat: 1) he has no prior criminal record; and 2) the Court has received letters of support which I’ve marked as Exhibit F which indicatethat [the appellant] has been in the past a very good hard working worker and they claim he has good character.

The aggravating factorswhich I’ve considered are as follows: 1) the ages of the victims in counts one and two. The victim R.R. was age 12 at the time theassaults against him commenced and continued until he was age 16. The victim J.R. was age 14 when he was assaulted; 2) the victimswere the nephews of the accused by marriage and he abused a position of trust and authority in relation to those victims.

The evidenceestablished that the accused was trusted alone with R.R. and J.R. as he was their uncle; 3) that in committing the assaults on S.S., hisspouse, he frequently embarrassed her by his assaults occurring in public settings; 4) the Court must look at the consequences of thesecrimes; that in committing the assaults he inflicted long term emotional damage for which R.R. and J.R. continue to be treated; 5) that theassaults respecting R.R. and S.S. took place over an extended period of time. They were not isolated incidents as a result more harmresulted; 6) the impact on the victims R.R. and J.R.

Sexual offences are violent offences which can inflict harm whose consequences cancontinue and persist throughout a victim’s life. In this case, especially with respect to count one, there has been a negative, long term

impact on the victim R.R. […] [ 36 ] The appellant acknowledges the five-year penitentiary term imposed for the sexual assault in Count #1, while at the high end, is nonetheless within the broad range of jail terms allowed by the Criminal Code and for which support may be found in the jurisprudence. Additionally, it is not contended the reasons for sentence evince an error in principle. The appellant’s sole complaint is that the severity of the sentence is the by-product of a mischaracterization of his role in the sexual assaults in issue under Count #1.

In that regard, the appellant points to the reasons for conviction, which feature the admittedly erroneous statement that he performed anal sex on R.R. That misstatement is not repeated in the detailed reasons for sentence. At any rate, I am satisfied that, if there was a misapprehension of the evidence on point, which I very much doubt, the error was inconsequential.

Having regard to the findings of fact made at the sentencing hearing and which stand unchallenged, I cannot bring myself to accept that the judge would have imposed a more lenient sentence if he had understood the appellant had not performed anal sex on R.R., but had “merely” prevailed upon R.R. to do so on his person. In truth, I find the submission offensive. [ 37 ] The record reveals a pattern of egregious sexual abuse of R.R. He was stripped of the opportunity to enjoy his adolescence.

Perhaps time will heal the wounds caused by the appellant, but the fact remains that the harm done was grievous, and remains a source of profound unhappiness. [ 38 ] The five year term of imprisonment imposed with respect to Count #1 is not the product of an error of law or an error in principle. Nor is that sentence unreasonable. Thus, none of the three questions posed in R. v. LeBlanc (G.A.) , 2003 NBCA 75 , 264 N.B.R. (2d) 341 , and repeated in numerous cases since, can be answered in the affirmative. It necessarily follows that there is no principled basis for intervention by this Court.

In the result, I consider myself duty bound to deny the requested leave to appeal sentence. IV. Disposition [ 39 ] For the reasons set out above, I would dismiss the appeal against conviction as well as the application for leave to appeal sentence. ____________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: ____________________________________ J.T. ROBERTSON, J.A. _____________________________________ J.C. MARC RICHARD, J.A.