R. v. G.M., 2012 NLCA 47

Date: 20120719 Docket: 11/30 & 11/32 Citation: R. v. G.M. , 2012 NLCA 47

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : G.M. APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT AND : J.R. INTERVENOR Coram: Wells, Welsh and Hoegg JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Appeal Heard: May 18, 2012 Judgment Rendered: July 19, 2012 Reasons for Judgment by Welsh J.A. Concurring Reasons by Wells J.A. Dissenting Reasons by Hoegg J.A.

Counsel for G.M.: Peter Ralph, Q.C. Counsel for Her Majesty the Queen: Sheldon Steeves Counsel for the Intervenor: Randy Piercey Q.C.

Welsh J.A.: [ 1 ] G.M. was convicted of sexual offences contrary to sections 155 and 271 of the Criminal Code . His appeal is based on questions of evidence and the effectiveness of the legal representation he received at trial. BACKGROUND [ 2 ] The complainant, who resided in another province, had no contact with G.M., her father, until she was about eleven years old, after which they had contact by telephone. In December 2009, the complainant’s family moved back to this Province, and she and her mother visited the village where G.M. was residing.

This was followed by another visit from about August 3 to August 19, 2010 when the complainant was fifteen years of age. At that time, the incident leading to the convictions occurred. [ 3 ] The complainant’s mother testified that, in September 2010, she heard her daughter talking in her sleep, saying, “if mom knew you’d hurt me, she’d kill you”. Following questioning by her mother, the complainant gave a statement, which was recorded by video, to a police officer. The video was entered as an exhibit at trial, but was not played.

Rather, contrary to what defence counsel had been led to expect, the complainant gave her evidence and was cross-examined on the stand. [ 4 ] Charges were laid in respect of incidents which the complainant said in her statement to the police had occurred on two different days. However, at trial, the Crown led evidence only as to the first incident. No mention was made of the incident alleged to have occurred on the second day.

At the close of the Crown’s case, the defence sought, and was granted, a directed verdict with respect to the charges related to the second incident. [ 5 ] While there was some uncertainty as to whether the first incident occurred on Thursday, August 5 th , or Saturday, August 7 th , the trial judge seems to have accepted the latter as the relevant date. She recognized that there were inconsistencies in the complainant’s testimony as to what had occurred.

However, she rejected the defence theory that the complainant had a motive to fabricate her complaint because she had been refused permission to live with her father, his spouse and their children. [ 6 ] The trial judge accepted the complainant’s testimony that G.M. came home about 4:00 a.m. after a night of drinking, and entered the bedroom where she was sleeping. This was the bed normally used by G.M.’s spouse who had taken their children to Nova Scotia where she was working from June to September.

The complainant had been sleeping in the bedroom of one of the other children, but said she had moved into the other bed because she had been told that the child in whose bed she was sleeping had had lice. The complainant’s description of the incident involved both her and G.M. leaving the bed, each at different times, G.M. being naked for part, if not most, of the time, the smoking of a cigarette and marihuana by both, one incident of cunnilingus and finally, sexual intercourse.

There were inconsistencies in her testimony which must be considered for purposes of the appeal in the context of evidence which was not, but which G.M. argues should have been, before the trial judge. [ 7 ] In her oral decision, the trial judge dismissed G.M.’s testimony on the basis that he had no recollection of the time in question because he was intoxicated and had passed out: … In analyzing the evidence of the accused, the Court must be concerned with the fact that he said that he had consumed 20 or more beer on the evening in question.

His recollection of any events on that evening stops shortly after he parts ways with the Defence witnesses [who had driven him home from a party,] who were able to recall some of the events and who were able to tell the Court what the accused was doing, where he was and who he was with up to that point in time. However, the accused has no recollection of any intervening events until when he says he was found by his friend passed out on the kitchen floor at 9 o’clock in the morning.

What that means is that for that period of time when the complainant describes the incidents between herself and the accused, he is describing himself as passed out. So, he has no recollection of that time frame. That being the case, it’s not simply a measure of believing or disbelieving. The fact is that the accused has said that the incident as described didn’t occur, but he’s also told the Court that he was passed out at that time, so he has no recollection of any events. (Emphasis added.) [ 8 ] The trial judge convicted G.M. of incest contrary to

section 155 of the Criminal Code and of sexual assault contrary to

section 271 . The basis for the latter conviction is unclear. In her oral decision, the trial judge states: Count 3 is the count contrary to section 271(1). Having found that the act of intercourse occurred and noting that the complainant could not legally consent to the act at that time, the court must enter a conviction on Count #3. At the sentencing hearing, the trial judge related the conviction under

section 271, not to the act of sexual intercourse referenced in her earlier decision, but to the act of cunnilingus. It is unnecessary to resolve this inconsistency because, as a result of this appeal, the trial judge’s decision is being set aside and a new trial ordered. [ 9 ] Counsel for G.M. on the appeal to this Court filed several affidavits, including those of G.M. Counsel for G.M. at trial (“Defence Counsel”), whose effectiveness at trial is being challenged on the appeal, was granted intervenor status and also submitted an affidavit. Both G.M. and Defence Counsel were cross-examined on their affidavits.

In addition, this Court heard cross-examination on the affidavits of D.M., who had testified at trial, and G.O., who had not been called as a witness at trial. ISSUES [ 10 ] At issue is whether counsel for G.M. failed to provide effective assistance at trial such that a miscarriage of justice resulted. The analysis requires the assessment of evidence proffered by G.M. which he characterizes as fresh evidence. ANALYSIS

[11] The foundation of G.M.’s appeal is that Defence Counsel failed to provide him with effective assistance relating to thepresentation of evidence and the provision of advice as to an appropriate strategy. In R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520,Major J., for the Court, reiterated the right to the effective assistance of counsel which, as a principle of fundamental justice, extends toall accused persons. He went on to explain: [26] The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O’Connor J.

Thereasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, thatcounsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. [27] Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’sconduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissionsof counsel that are alleged not to have been the result of reasonable professional judgment.

The wisdom of hindsight has no place in thisassessment. [28] Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted inprocedural unfairness. In others, the reliability of the trial’s result may have been compromised. [29] In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to considerthe performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professionalconduct.

The latter is left to the profession’s self-governing body.

If it is appropriate to dispose of an ineffectiveness claim on theground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697). … [34] Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should notlook behind it save only to prevent a miscarriage of justice. … [12] When several errors are alleged, none of which may be sufficient by itself to undermine the reliability of the verdict, it isappropriate to consider the cumulative potential effect of the errors when assessing a miscarriage of justice issue.

This approach wasdiscussed and adopted in R. v. Fraser, 2011 NSCA 70, 306 N.S.R. (2d) 201. Saunders J.A., for the Court, explained: [120] While it has not been necessary for me to comment upon each of the complaints leveled by the appellant, the few examples I haveaddressed clearly establish that trial counsel’s actions, omissions, and choices could not have been the result of reasonable preparation orprofessional judgment. Their cascading effect took away the appellant’s chance for a fair trial. As in R. v. J.B., [2011] O.A.C.

Uned.375; 2011 ONCA 404: “[6] … the cumulative effect of the failures of counsel undermined the reliability of the verdict and resulted in a miscarriage of justice.” [13] Where there is a request to admit fresh evidence, the standard that applies in conducting the analysis, as stated in Palmer v. R., (SCC), [1980] 1 S.C.R. 759, is whether the evidence adduced on the appeal as fresh evidence “could reasonably, whentaken with the other evidence adduced at trial, be expected to have affected the result” (page 775).

The language used in G.D.B. iswhether “there exists no reasonable possibility that the use of the ‘fresh’ evidence in this case might have affected” the guilty verdict, orwhether, in light of the fresh evidence, “the results of his trial might have been different” (G.D.B., at paragraphs 40 and 41).

In R. v.R.R.W., 2011 NLCA 45, 308 Nfld. & P.E.I.R. 197, Green C.J.N.L. explained: [18] … But if the evidence is not decisive but has sufficient weight or probative force that it might have altered the result at trial, thecourt should admit the evidence and, after considering any other submissions on the appeal, direct a new trial. [14] And further in R.R.W.: [39] … But the possibility that the jury might ultimately regard the evidence as not determinative of the result is not the test.

Rather,it is, in the words of Palmer, “such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expectedto have affected the result.” (Italics added in R.R.W.) [15] In R.R.W., the conclusion followed: [40] Applying that test, the evidence is certainly reasonably capable of belief. If so, when taken with the other defence evidence, itcould reasonably be expected to affect the result of the trial.

At the very least, it would introduce a further dimension that would have tobe given consideration by the jury in dealing with the attacks on the appellant’s credibility and specifically on whether the jury ought tobelieve him when he said that he had a prior involvement with the complainant. (Italics added in R.R.W.) [16] In this case, G.M. sought to file affidavit evidence which, he says, demonstrates that Defence Counsel provided ineffectiveassistance at trial. As noted in R. v.

Freake, 2012 NLCA 10, at paragraphs 11 to 13, an affidavit sought to be submitted by the appellantand one by counsel whose assistance at trial is being challenged on the basis of ineffectiveness will be received in evidence by theappellate court because “[b]y its nature, such evidence could only come into existence after a trial and would only be relevant on appeal”(Freake, at paragraph 11).

The purpose of such affidavits is to provide the basis on which the appellant is challenging the effectivenessof his legal representation at trial, and the grounds on which defence counsel is responding. [17] In the case of Freake, the affidavits, one each from the appellant and defence counsel, dealt only with the relationship andinteraction between client and counsel. There was no issue involving evidence that, allegedly, should have been adduced at trial. Where

the latter type of allegation is made, depending on the nature of the evidence, additional supporting affidavits may be required. In thatsituation, the analytical approach to considering fresh evidence set out in Palmer v. R., supra, provides a framework for consideration ofthe proffered evidence. (G.D.B., supra; R. v. R.R.W., supra.) In Palmer, McIntyre J., for the Court, at page 775, set out four principlesto be applied:

(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: see McMartin v. The Queen.

(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 have affectedthe result. [18] In this case, in addition to his affidavit and that of Defence Counsel, G.M. sought to file eight affidavits, three from persons whohad testified at the trial. The evidence of all eight persons was known to Defence Counsel at the time of trial. This, however, is notdeterminative of G.M.’s application to have these affidavits considered as fresh evidence for purposes of the appeal.

This issue is dealtwith in G.D.B. [19] Where evidence was available, but not used at trial, the question of whether the court should refuse to accept it as freshevidence initially involves a consideration of the first prong of the Palmer test; that is, should the evidence be refused because “by duediligence, the evidence could have been adduced at trial” (G.D.B., at paragraph 16). In G.D.B., Major J. cautioned: [19] The due diligence criterion exists to ensure finality and order – values essential to the integrity of the criminal process. R. v. M.(P.S.) (1992), (ON CA), 77 C.C.C. (3d) 402 (Ont.

C.A.), per Doherty J.A., at p. 411: … However, jurisprudence pre-dating Palmer has repeatedly recognized that due diligence is not an essential requirement of the freshevidence test, particularly in criminal cases. That criterion must yield where its rigid application might lead to a miscarriage of justice. McMartin v.

The Queen, (SCC), [1964] S.C.R. 484, per Ritchie J. at p. 491: In all the circumstances, if the evidence is considered to be of sufficient strength that it might reasonably affect the verdict of the jury, Ido not think it should be excluded on the ground that reasonable diligence was not exercised to obtain it at or before the trial. In R. v. Price, (SCC), [1993] 3 S.C.R. 633, per Sopinka J. at p. 634: … we agree with the conclusion of the Court of Appeal that the evidence should be admitted as fresh evidence and the conclusion todirect a new trial.

While the exercise of due diligence is one of the significant factors, it is not applied strictly in criminal cases and mustbe applied in light of the other relevant factors. The amount of weight to be given to this factor depends on the strength of the otherfactors, in other words, on the totality of the circumstances. Also Warsing, [ (SCC), [1998] 3 S.C.R. 579], at para. 51. The due diligence requirement is one factor to be consideredin the “totality of the circumstances”. The importance of this criterion will vary from case to case.

In applying these considerations in G.D.B., Major J. summarized: [37] As noted above, the due diligence criterion is not essential to a successful appeal based on fresh evidence. This factor must yieldin circumstances where its rigid application would result in a miscarriage of justice. … (See also: R. v. R.R.W., supra, at paragraph 23.) [20] In G.D.B., the Court accepted that defence counsel had sound reasons for not using a taped recording, which had been availableat the time of trial, but which may have damaged the credibility of an important defence witness.

In assessing the Palmer due diligencecriterion in G.D.B., Major J. explained: [20] In determining whether or not the due diligence required by Palmer has been met, an appellate court should determine the reasonwhy the evidence was not available at the trial. The reason for the evidence not being available at first instance is usually one of fact. Inthis appeal, the evidence was available. The reason it was not used, placed in its most favourable light for the appellant, was theunilateral decision of his counsel that the tape would be more prejudicial than helpful in the trial.

In the result, the Court concluded that the appellant had failed to satisfy the due diligence component of the Palmer analysis. However,since the due diligence criterion is not determinative, the Court went on to consider whether there had been a miscarriage of justice in thesense that the reliability of the trial’s result was compromised by the omission of the evidence.

In that context, Major J. was satisfiedthat there was “no reasonable possibility that the use of the ‘fresh’ evidence in [G.D.B.] might have affected the two guilty verdicts”(paragraph 40). [21] In the appeal before this Court, G.M. has submitted that Defence Counsel provided ineffective assistance on the basis thatevidence relevant to challenging the complainant’s credibility was not led.

This, he said, considered in light of the evidence that wasadduced at trial, together with the decision not to cross-examine the complainant with respect to the incident alleged to have occurred onthe second day, resulted in an unreliable verdict and thereby a miscarriage of justice. In assessing this submission, the evidence that wasomitted and the decisions taken by counsel in good faith must be considered in the context of the totality of the circumstances. [22] All the evidence set out in the supporting affidavits and on which G.M. relies in this appeal was known to Defence Counsel at

the time of trial. The evidence was omitted for differing reasons. In the case of G.O. and L.M., the witnesses were not immediately available and, according to Defence Counsel, a delay in the trial was being resisted by G.M. who had been denied judicial interim release. In the case of F.P., Defence Counsel considered that her evidence would not be of use.

Finally, Defence Counsel made a strategic decision to avoid any mention of evidence related to the incident alleged to have taken place on the second day, which would include the evidence of R.G. [ 23 ] In his submissions, G.M. relies on a combination of these decisions and omissions, not on each individually, to ground his conclusion that the trial resulted in a miscarriage of justice. In considering the submissions regarding the omitted pieces of evidence, it is convenient to assume that the evidence did not satisfy the Palmer due diligence criterion.

However, as in G.D.B. , where the appeal is based on alleged ineffective representation by counsel, it is necessary to go on to consider whether to refuse to admit the fresh evidence, based on application of the Palmer due diligence criterion, would result in a miscarriage of justice. The question is whether the reliability of the verdict was compromised by the omission of the evidence.

In assessing the proffered fresh evidence in this context, the remaining Palmer criteria to be considered are: is the evidence relevant, credible in the sense of being reasonably capable of belief, and, in the totality of the circumstances, if believed, could the evidence reasonably be expected to have affected the result of the trial? [ 24 ] Four of the affidavits dealt with establishing that the date on which the incident occurred would have been Saturday, August 7, 2010.

Evidence on this point does not satisfy the requirement that such evidence could reasonably be expected to have affected the result of the trial. The trial judge viewed the question of whether the incident occurred on August 5 th or 7 th to be insignificant. However, she appears to have accepted August 7 th as the relevant date. The complainant testified that the incident occurred on the date that G.M. came home after a night of drinking and that his shirt had been torn by a person attempting to get him into a vehicle for the ride home. The evidence was that this occurred on August 7 th .

As discussed below, this is the date on which the defence evidence is focused. It follows that further evidence to establish August 7 th as the relevant date could not reasonably be expected to have affected the result of the trial. [ 25 ] However, a different result obtains with respect to the evidence of G.O. who was not called to testify. The affidavits of G.M. and Defence Counsel set out their positions regarding G.O. G.M. states in his affidavit: 16. I also do not know why [G.O.] was not called as a witness. [Defence Counsel] only learned about [G.O.] during my testimony at the trial.

He should have called him as a witness at the trial because [G.O.’s] evidence was important. … [ 26 ] In response, Defence Counsel states, in his affidavit: 23. That at no point prior to the trial did I discuss [G.O.] with [G.M.], nor was I aware of what [G.O.’s] evidence would be. I do not recall [G.M.] before or during the trial asking me to call [G.O.] as a witness. [G.M.’s] position generally was that he wanted his trial concluded that day, which is why he did not want a postponement to get [L.M.] to testify.

I did not suggest to him a postponement to get [G.O.]. [ 27 ] G.O.’s affidavit outlines the nature of the evidence he could be expected to have given. His affidavit states: 1. THAT I am a friend of [G.M.]. I have lived in [village] all my life and I have visited [G.M.’s] home. 2. THAT I went to [G.M.’s] home one morning and found him asleep on his kitchen floor. I do not know the date. I was living with [D.M.] at the time. I told [D.M.] about finding [G.M.] on the floor. 3. [G.M.] was wearing clothes when I saw him on the floor. [ 28 ] G.O. was cross-examined at the hearing of the appeal.

It was clear that, taken together with other evidence, the inference could have been drawn that G.O. found G.M. on the kitchen floor, fully clothed, passed out, asleep or just waking up at about 9:00 a.m. on Sunday, August 8 th . The inference to which this evidence is directed is that G.M. arrived home and simply passed out on the kitchen floor due to his intoxication, and that he was still there when G.O. found him a few hours later.

It is possible for this evidence to be seen as consistent with the level of intoxication described by other defence witnesses and G.M.’s own testimony, and inconsistent with the complainant’s description of what took place. [ 29 ] It is important to recognize the relevance of G.O.’s testimony, and that of the witnesses discussed in the following paragraphs. In the absence of their testimony, the trial judge was left with a deficient contextual framework within which to assess the complainant’s testimony.

This is due primarily to the judge’s determination that G.M. was passed out and had no recollection of the events. For this reason, without assessing G.M.’s credibility, the judge simply dismissed his evidence (paragraph 7, above). Accordingly, without G.O.’s evidence, the judge would not, for example, have considered G.M.’s testimony that he was found on the kitchen floor by G.O., and would not have turned her attention to the inference that might have been drawn. [ 30 ] Further, G.O.’s evidence might have been used to challenge the complainant’s credibility more generally.

The complainant testified that the incident took place on Thursday, August 5 th and, in particular, that G.M. had gone to work the next day. G.M.’s place of employment did not operate on Sunday. Going to work could be seen to be consistent with the complainant’s description of G.M.’s level of activity when he returned home from the night of drinking. She described him as undressing and dressing, leaving the bed, obtaining and smoking marihuana, and so forth, just a couple of hours before he would have gone to work about 7:00 a.m.

In the absence of G.O.’s testimony about finding G.M. on the kitchen floor on Sunday morning, there was no reason for the trial judge to focus on the complainant’s testimony that G.M. had gone to work the next day.

However, had G.O.’s evidence been adduced, the judge would have had an additional piece of information with which to assess the credibility of the complainant’s testimony. [ 31 ] The absence of G.O.’s evidence, which was reasonably capable of belief, left a gap in the theory of the defence that G.M. was so intoxicated that, when he returned home, he had simply lain down on the kitchen floor until G.O. found him later that morning. G.O.’s evidence was, therefore, relevant.

While, of itself, G.O.’s evidence would not have been decisive, it has sufficient probative value such that it must be taken together with all the other evidence in determining whether a miscarriage of justice occurred.

[ 32 ] L.M. did not testify at the trial and was not cross-examined on the affidavit he filed on this appeal. L.M.’s affidavit states: 1. THAT I am the Nephew of [G.M.] and [N.S.] [G.M.’s sister] is my mother. 2. THAT I met [the complainant] in December 2009. 3. THAT in August 2010 she came to visit [G.M.] and before she left she said to me “if I can’t have him nobody will”.

I understood that she was talking about [G.M.] and that she was upset she couldn’t live with him. [ 33 ] Defence Counsel, in his affidavit, indicated that he had intended to call L.M. who had agreed to testify as to his conversation with the complainant. However, on the day of trial, L.M.’s mother told Defence Counsel that L.M. had been unable to secure transportation from his residence to the place of trial, a considerable distance, due to weather.

Defence Counsel further states in his affidavit: 20. … I advised [G.M.] of why [L.M.] was not present, and our option to call him as a witness was to seek a postponement and call him as a witness at a later date in [L.M.’s place of residence]. [G.M.] indicated that he wanted his trial concluded as soon as possible, and preferred to conclude the evidence on that day in [the place where the trial was held]. [ 34 ] There is no indication in Defence Counsel’s affidavit that he discussed with G.M. why L.M.’s evidence might be sufficiently important to warrant a delay in the proceedings despite G.M.’s continued incarceration.

This evidence related to the defence position that the complainant had fabricated the allegations because she was angry with G.M. and his spouse for refusing to accept her request to reside with them. The trial judge rejected the suggestion that the complainant had an ulterior motive in making her complaint. In her oral decision, the judge said: There was also a suggestion that the complainant may have fabricated the entirety of her complaint as a result of not being given permission to go live with her father which was apparently something that she wished to do.

However, I find that that theory does not hold a great deal of water when one considers that it was not the complainant who made the events known. She was overheard talking in her sleep by her mother and it was her mother who insisted that she tell her what the comment, “if mom knew you’d hurt me, she’d kill you” meant. Her mother demanded to know who it was that her mother would want to kill. So, it was not the complainant who made the events known, it was her mother.

That being the case, there would not be a logical connection between the telling of the complaint and the refusal of her request that she be permitted to live with her father. The connection between the two events is not there. [ 35 ] This conclusion must be considered in light of the evidence L.M. may have given had he been called to testify, together with other evidence from G.M.’s spouse, F.P., which G.M. submits should have been, but was not, adduced in his defence. In his affidavit, G.M. states: 15. I also do not know why my common law spouse, [F.P.], was not called as a witness.

She had given [Defence Counsel] some phone records and also some facebook records. The facebook records showed that [the complainant] could be very mad with us at times. She threatened a couple of times not to have anything else to do with her. The records, which are attached to this affidavit, would have shown that [the complainant] could be very angry and manipulative with us. The records show that she was mad at [F.P.] because she thought [F.P.] was not giving me messages that [the complainant] had called for me.

This would have demonstrated that [the complainant] was an emotionally challenging child who had a motive to lie about me to get us back for not giving her what she wanted. [ 36 ] With respect to F.P.’s evidence, Defence Counsel states in his affidavit: 22. That I discussed with [G.M.] well in advance of the trial that I did not plan on calling [F.P.] as a witness. She was not present during the alleged events and I did not believe she had useful evidence. [ 37 ] F.P., who was not called to testify at trial, submitted an affidavit, but was not cross-examined, on the appeal.

Her affidavit refers to telephone and facebook records she provided to Defence Counsel and her assessment of the complainant’s relationship with her and G.M. [ 38 ] It is unclear why Defence Counsel did not plan to enter F.P.’s evidence if, as he indicated, he intended to call L.M. The evidence of both related to the question of a possible motive for the complainant to fabricate the allegations. During cross-examination on his affidavit in this Court, Defence Counsel agreed that F.P.’s evidence, in particular, the facebook records, would have helped to put L.M.’s evidence in context.

The evidence was relevant and reasonably capable of belief. As was the case with G.O.’s evidence, the evidence of L.M. and F.P., which, of itself, would not have been decisive, has sufficient probative value such that it must be taken together with all the other evidence in determining whether a miscarriage of justice occurred. [ 39 ] R.G., who submitted an affidavit for purposes of the appeal, did not testify at the trial, though his evidence was known to Defence Counsel at the time.

The reason he was not called to testify is that his evidence related to the incident alleged to have taken place on the second day, August 10, 2010, and regarding which the defence requested, and was granted, a directed verdict. R.G. was not cross-examined on his affidavit on this appeal. His affidavit states: 1. THAT I am a friend of [G.M.]. I have lived in [village] all my life and I have visited [G.M.’s] home. 2. THAT I met [the complainant] in December of 2009. [G.M.] brought her to my house in [village]. While she was at my home she burned her arm with a cigarette.

I was disturbed and told [G.M.] never to bring her up to my house again. 3. THAT I did not visit [G.M.] at his home in August of 2010 when [the complainant] was visiting with him. [ 40 ] This evidence was relevant to the alleged August 10 th incident because the complainant, in her video-taped statement to the police, said that, on that day, G.M. had forced her to engage in oral sex at his home. In his affidavit filed in this appeal, Defence Counsel explained:

6. That [G.M.] advised me that he could directly refute the allegation of forced oral sex on or about Aug. 10, 2010. That he was not drinking on that date and was not alleged to have been intoxicated by [the complainant]. [The complainant] in her statement said this incident occurred at [G.M.’s] house, and that a friend of [G.M.’s] named [“R.”] walked in and interrupted this forced oral sex. She did not say that [“R”] witnessed the forced oral sex, but that [G.M.] stopped this activity because [“R.”] was there.

She did not know [“R.’s”] last name. [ 41 ] In the affidavit filed in this Court, G.M. stated that the only “R.” he knows is R.G. and that R.G. would not have visited his home when the complainant was there. This is consistent with R.G.’s affidavit. [ 42 ] This evidence must be assessed in the context of all the evidence and, in particular, Defence Counsel’s decision to request a directed verdict and to avoid any reference to the August 10 th charges.

Because this was a matter of strategy, I would reiterate the caution in G.D.B. that, where counsel makes a decision in good faith and in the client’s best interests, an appellate court should not look behind that decision except to prevent a miscarriage of justice (paragraph 11, above). I am also cognizant of the “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance” ( G.D.B. , at paragraph 27 , paragraph 11, above). [ 43 ] Defence Counsel’s decision not to raise the August 10 th incident in cross-examining the complainant is addressed in his affidavit.

The trial did not unfold as Defence Counsel had expected. He states in his affidavit: 8. That I had been advised by [M.F.], the Crown Attorney who had carriage of this file prior to trial, that the Crown would be seeking to have [the complainant’s] video statement played at the trial as allowed by

Section 715.1 of the Criminal Code . 9. That my belief was that [the] way [the complainant] presented in the video was very unusual and may reflect negatively on her credibility as a witness. I reviewed the video with [G.M.] and agreed that her manner was unusual and reflected negatively on her credibility. I therefore decided not to oppose the Crown’s application to have the video played in court. 10.

That on the day of the trial I was advised by [T.S.], the Crown Attorney who had taken carriage of the trial, that she was not seeking to have the video statement played in court, and preferred to have [the complainant] provide viva voce direct evidence. 11. That at trial the Crown led [the complainant] through a direct examination of the evidence relating to the allegations of August 5, 2010, then concluded the direct examination.

No questions were asked on direct examination in relation to the allegations of forced oral sex on August 10, 2010, and [the complainant] gave no evidence regarding these allegations. 12. That at the conclusion of the Crown’s direct examination of [the complainant] I asked for a brief adjournment. I discussed with [G.M.] the fact that no evidence had been called in relation to the August 10 allegations, and that if the Crown closed its case without any evidence on those allegations then those counts could be dismissed. 13.

That I telephoned a colleague, [P.C.], to discuss tactics on cross-examination. [P.C.] was familiar with the allegations because he had represented [G.M.] at his bail hearing. We discussed whether I should put to [the complainant] her allegations of August 10, 2010, knowing that [G.M.] and [R.G.] could give evidence that was inconsistent with hers, or whether I should avoid all mention of August 10, 2010 and seek directed verdicts on the related counts. Both [P.C.] and I felt that the better approach would be to seek the directed verdicts. 14.

That I advised [G.M.] before cross-examination of [the complainant] that my preferred approach to the issue was to not ask [the complainant] any questions about the August 10 allegation. He indicated that he would defer to my advice on that issue. … 15. That I did not address the issue of the allegation of forced oral sex on August 10, 2010 because to do so would have required me to lead evidence at the trial that the allegations were made, and also that they were untrue.

I would have had to put that issue to [the complainant] on cross-examination at a time in the trial when no evidence had been called by the Crown on those allegations, which formed the basis of three criminal charges that were before the court at that time. 16. That I had planned to call [R.G.] as a witness at trial but did not do so because the evidence that he had to give related only to the August 10, 2010 allegations.

With those allegations no longer before the court I believed his evidence was no longer relevant. (Emphasis added.) [ 44 ] On cross-examination on his affidavit on the appeal, Defence Counsel indicated that, when he asked Crown counsel why she had not pursued the charges related to the August 10 th allegations during her examination-in-chief, she told him that she had forgotten. In the result, in cross-examining the complainant, his plan or strategy was to maintain what he described as a narrow focus.

He intended to conduct a short cross-examination because he was concerned about the potential of raising anything related to the August 10 th allegations. This concern may well have constrained an effective cross-examination regarding the August 7 th allegations about which the complainant had testified. [ 45 ] The decision to seek a directed verdict and to conduct a limited cross-examination on the August 7 th allegations so as to avoid any reference to the August 10 th incident must be considered in context.

Defence Counsel was inexperienced and sought the advice of other counsel who was not present to hear the strength of the case against G.M. based on the complainant’s testimony.

As noted in G.M.’s affidavit, the two incidents were very different in character and Defence Counsel knew G.M. had relevant evidence that might have significantly damaged the complainant’s credibility regarding the August 10 th allegation and which, as a result, might have affected her credibility regarding the August 7 th allegation, particularly given the inconsistencies in the complainant’s description of what had taken place. [ 46 ] With respect to obtaining instructions from G.M. regarding strategy as to the August 10 th allegation, in his affidavit, Defence Counsel states that G.M. “indicated that he would defer to my advice on that issue” (paragraph 14).

In his second affidavit, G.M. states:

4. … [Defence Counsel] did advise me that he should not cross examine [the complainant] with respect to the allegations of August 10 th , 2010. He told me that the charges in relation to those allegations would be dismissed if he did not ask any questions. He did not discuss with me that by doing so I would be giving up an opportunity to call evidence which would raise questions regarding her honesty. I wanted [R.G.] to testify because I believed that it would demonstrate that [the complainant] was not telling the truth about any of the allegations against me.

I was glad to see that the charges would be dismissed but I did not appreciate that we would be giving up the chance to question her credibility. [ 47 ] This statement was not challenged on the appeal. While counsel is bound to accept the client’s instructions, it is important for counsel to provide advice which will permit the client to make an informed decision, particularly in a complex and serious case such as this.

Here it is clear that G.M. simply “deferred” to counsel’s advice, relying on his expertise. [ 48 ] Further, there is no indication that Defence Counsel considered the potential strategy of obtaining a directed verdict on the August 10 th charges at the close of the Crown’s case, then raising the allegations that she had reported in her statement to the police leading to the August 10 th charges as part of the defence to the August 7 th charges.

In the circumstances as discussed above, the argument could have been made that this evidence was relevant and probative for the purpose of assessing the complainant’s credibility as to the August 7 th charges. The Crown may have applied to have the complainant recalled to testify in response, but G.M. would no longer have been at risk of being convicted of the charges on which the directed verdict had been granted.

Further, raising the August 10 th allegations as part of the defence for the purpose of impeaching the credibility of the complainant would have set the stage for R.G.’s testimony. [ 49 ] Had Defence Counsel proceeded in this manner, he may have been met by a challenge to the admissibility of the evidence. For example, the Crown may have argued that, if Defence Counsel intended to raise evidence related to the August 10 th incident, it would have been necessary to do that by cross-examining the complainant while she was on the stand.

However, in the unusual circumstances of this case, this would have placed G.M. in the position of initiating and helping to prove the Crown’s case in respect of the August 10 th charges. To avoid this conundrum which was foisted on Defence Counsel, Crown counsel should have either proceeded with the August 10 th charges or withdrawn them prior to Defence Counsel proceeding with his cross-examination.

If the August 10 th charges had been withdrawn and Defence Counsel then attempted to raise these charges in his cross-examination, it would have been open to the Crown to challenge the admissibility of such evidence on the basis that it was collateral in nature. The trial judge would have been in a position to rule on that challenge. [ 50 ] Alternatively, if Defence Counsel had proceeded as outlined in paragraph 48, above, the Crown may have challenged the admissibility of the evidence, again on the basis that it was collateral.

However, when assessing such a challenge, the court would necessarily take into account both the purpose of the collateral facts rule and its effect in the particular circumstances before the court. [ 51 ] A helpful discussion of the purpose of the collateral facts rule and its effect is found in R. v. Boyd , 2006 MBQB 128 , [2006] 11 W.W.R. 721.

Duval J. wrote: [22] Crown counsel relied on Watt’s Manual of Criminal Evidence (Toronto: Carswell, Thomson Canada Limited, 2002), which states at [paragraph] 22.03, p. 265: The collateral facts rule prohibits the introduction of evidence for the sole purpose of contradicting a witness’ testimony concerning a collateral fact. The rule seeks to avoid confusion and proliferation of issues, wasting of time and introduction of evidence of negligible assistance to the trier of fact in determining the real issues of the case. It endeavours to ensure that the sideshow does not take over the circus.

In general , matters that relate wholly and exclusively to the credibility of a non-accused witness are collateral, hence beyond the reach of contradictory evidence. (Italics in original, underlining added.) [ 52 ] Duval J. also referred to a paper on the collateral facts rule prepared by Scott C.J.M. in 2000 for presentation at a seminar: [30] … In his paper, Chief Justice Scott concludes that the overriding considerations in the application of the collateral facts rule are whether the evidence in question can make a sufficient contribution to the determination of the case without prejudicing the accused, extending the court’s resources, or confusing the issues. [ 53 ] In Boyd , Duval J. found that the challenged evidence, which related to a witness’ credibility was, nonetheless, admissible: [31] I have concluded that the evidence relating to the February 6, 2003 incident is a collateral fact which is only relevant to the assessment of the credibility of Constable Tremblay.

It is relevant to the determination of whether his evidence, respecting the incident of February 5, 2003 on which the charge of assault is based, is reliable or in part fabricated or exaggerated, or based on bias, as alleged by the defence. Is the evidence sufficiently relevant? In my opinion it is. Constable Tremblay’s credibility goes to the essence of the Crown’s allegation of assault.

Further, the Crown was not prejudiced by the calling of the “collateral fact” evidence as it was given an opportunity to prepare and to call witnesses relevant to the issue raised by the defence. [32] Paciocco and Steusser [ Essentials of Canadian Law: The Law of Evidence , 2nd edition (Toronto: Irwin Law, 1999)] have suggested the following test in determining whether to admit “collateral evidence”: Is the evidence offered of sufficient value and of sufficient importance to the issues before the court that it ought to be heard having regard to the necessary court time required, potential confusion of issues, and any unfairness and prejudice to the witness?

Applying that test, I have concluded that the evidence led on the voir dire is of such sufficient value and importance to the issues for determination before this court. Any potential unfairness or prejudice to the officer has been addressed by the opportunity to lead evidence during the voir dire hearing. … [ 54 ] In the case before this Court, whether evidence as to the August 10 th charges would be admissible would be for the trial judge to determine. However, it cannot be said that, in the circumstances, such evidence would necessarily have been, or would be, ruled

inadmissible. [ 55 ] As noted above, where, as here, counsel made a decision on trial strategy in good faith and in what he considered to be his client’s best interests, this Court should not look behind that decision “save only to prevent a miscarriage of justice”. It is not for the appeal court to second guess counsel’s decisions with the wisdom of hindsight.

However, if the evidence considered as a whole, taken together with acts or omissions of Defence Counsel, leads to the conclusion that the reliability of the verdict may have been compromised and that a miscarriage of justice might have resulted, a new trial must be ordered. [ 56 ] In the circumstances of this case, the considerations discussed above must be assessed in the context of the inexperience of counsel and the complexity of the trial, including the significant, unexpected developments such as the Crown’s decision at the last minute not to rely on the complainant’s video-taped evidence and her failure to raise or withdraw the August 10 th allegations.

The evidence of G.O., L.M., F.P. and R.G. proffered for purposes of this appeal satisfies the requirements that it be relevant, reasonably capable of belief, and if believed, when taken with all the evidence adduced at trial, it could reasonably be expected to have affected the result.

Accordingly, that evidence is properly considered for purposes of the appeal. [ 57 ] As a result of Defence Counsel’s decisions with respect to adducing evidence and dealing with the August 10 th allegations, the trial judge was left with an incomplete picture, particularly with respect to the defence available to be presented by G.M. The evidence of other witnesses was especially important in this case given G.M.’s admission that he was intoxicated, evidence which led the trial judge to conclude that G.M. had no recollection of the events regarding the August 7 th incident.

The evidence of G.O., L.M. and F.P., as discussed above, provided a context for the complainant’s evidence which may have undermined her credibility and raised a reasonable doubt as to G.M.’s guilt in respect of the August 7 th charges. [ 58 ] The concern that the trial result was unreliable and that a miscarriage of justice might thereby have resulted was augmented by Defence Counsel’s decisions regarding the August 10 th allegations.

Defence Counsel, particularly disadvantaged by his inexperience, admitted that he was focused on preserving the acquittal on the August 10 th charges, and that, as a result, he conducted a narrow and limited cross-examination of the complainant. This may have constrained his ability to test the complainant’s credibility. This concern was exacerbated by Defence Counsel’s failure to take steps, after the directed verdict was granted, to raise the complainant’s statement to the police regarding the alleged August 10 th incident for the purpose of impeaching her credibility as to the August 7 th charges.

The cumulative effect of Defence Counsel’s omissions and decisions was to undermine the reliability of the verdict, resulting in a miscarriage of justice and requiring a new trial.

SUMMARY AND DISPOSITION [ 59 ] The appeal is allowed, the convictions are quashed and a new trial is ordered. In the result, it is unnecessary to consider the Crown’s cross-appeal regarding an order under

section 490.013 of the Criminal Code . ______________________________ B. G. Welsh J.A. Concurring Reasons by Wells J.A. [ 60 ] I concur with the reasoning and the result expressed in the reasons of my colleague Welsh J.A. I would add, by way of obiter as it is not necessary to the disposition of the appeal, a further comment respecting application of the Palmer due diligence criterion to supportive affidavits proffered by an appellant in relation to an ineffectiveness-of-counsel-at-trial ground of appeal. With respect to the due diligence criterion, Welsh J.A. follows R. v.

Freake , 2012 NLCA 10 , which decided that the affidavits of the appellant and the counsel whose effectiveness at trial is being challenged will be received in evidence because by its nature such evidence could only come into existence after a trial and would only be relevant on appeal.

Following that logic, Welsh J.A. also comments that “the purpose of such evidence is to provide the basis on which the appellant is challenging the effectiveness of his legal representation at trial.” [ 61 ] I agree, but would also apply the principle to supportive affidavits directed solely to the purpose of challenging the effectiveness of counsel at trial.

There would not appear to be a logical basis or legal purpose for differentiating between the affidavit of the appellant submitted in support of the ineffectiveness-of-counsel argument and a supportive affidavit of another deponent, directed to the same purpose. It would seem logical and consistent with purpose that the principle should also be applied to a supportive affidavit.

Otherwise, evidence relevant and important to establishing that ground of appeal is at risk of being excluded because it was reasonably available at the time of trial. [ 62 ] It would be more in accord with principle, certainly more transparent, and consistent with Freake , to acknowledge an exception to the due diligence requirement for such evidence than to apply the criterion, treat it as though its application could be a factor in determining the admissibility of the evidence, conclude that its application could result in the evidence being excluded and then decide that the result of applying the due diligence criterion should, because of the purpose of the evidence, yield in order to avoid a miscarriage of justice.

The basis for excepting such evidence from the due diligence criterion would, of course, require that its use be confined to the purpose on which the exception is based, namely, establishing the ineffectiveness-of-counsel ground of appeal. If the appellant sought to use it in support of other grounds of appeal, its admissibility would have to be reweighed against the unrestrained application of the Palmer criteria. ______________________________

C. K. Wells J.A. Dissenting Reasons by Hoegg J.A. INTRODUCTION [63] I am unable to agree with my colleagues that Defence Counsel’s conduct of the trial resulted in omissions and decisions which,when added together, have the effect of undermining the reliability of the trial judge’s conviction of G.M. such that he has suffered amiscarriage of justice. [64] G.M. appeals to this Court on an application for fresh evidence based on ineffectiveness of counsel. When the basis for anappeal is an application for fresh evidence, the long-established four-part test set out in Palmer v.

R., supra, affirmed by the SupremeCourt of Canada in R. v. J.A.A., supra, and by this Court in R. v. R.R.W., supra, applies. The fourth Palmer criterion expresses thestandard an appellant must meet to succeed with his or her appeal: [the evidence] must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result.

When this standard is met, a miscarriage of justice can be found and a new trial can be ordered. [65] Justice Major stated in G.D.B., supra, that a miscarriage of justice can be said to have occurred when the reliability of a trial’sresult may have been compromised, and that such a conclusion rests upon an assessment of what happened at trial.

This assessmentinvolves determining whether there is probity in the proffered fresh evidence, and if so, when that probity is considered with the trialevidence, whether it could reasonably be expected to have affected the trial result such that the reliability of the trial is called intoquestion. [66] In my view, the majority decision that there has been a miscarriage of justice in this case sets an unacceptably low standard foran appellate court to interfere with a properly-rendered trial decision.

If the trial judge’s decision in this case is unreliable due to theabsence of the “fresh evidence” proffered by G.M., then I can see almost no basis for ever denying a fresh evidence appeal and orderinga new trial.

Such a low standard undermines the integrity of our criminal trial process. [67] This concern is well put by Doherty J.A. at 411 in M.(P.S.), supra, (leave to appeal to the Supreme Court of Canada refused): … The interests of justice referred to in s. 683 of the Criminal Code encompass not only an accused's interest in having his or her guiltdetermined upon all of the available evidence, but also the integrity of the criminal process. Finality and order are essential to thatintegrity.

The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respectivecases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial. Section 683(1)(

d) of theCode recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should beused routinely to augment the trial record. Were it otherwise, the finality of the trial process would be lost and cases would be retried onappeal whenever more evidence was secured by a party prior to the hearing of the appeal. For this reason, the exceptional nature of theadmission of "fresh" evidence on appeal has been stressed: McMartin v. The Queen, supra, at p. 148.

While finality and order are critical to the fair and efficient functioning of our criminal law process, they must always be balanced againstthe risk of a miscarriage of justice, and must yield in cases where such a risk is a reasonable one based on cogent evidence. Applicationsfor fresh evidence cannot be routinely permitted to override the principles of finality and order when such a risk is a mere possibility. [68] The determination that a different trial could possibly yield a different result is not sufficient reason to overturn the verdict of afair trial where there has been no error.

While the issues between fresh evidence appeals and appeals based on miscarriages of justicepursuant to s. 686 of the Code differ in some respects, the statement of Iacobucci J. at paragraphs 28-29 of R. v. A.G., 2000 SCC 17,[2000] 1 S.C.R. 439, to the effect that a vague unease or a lingering or lurking doubt based on an appellate court’s own review of theevidence is not a proper basis upon which to interfere with the decision of a trial judge, is applicable.

ANALYSIS The Law [69] Palmer and G.D.B. together provide a framework for deciding fresh evidence appeals when the basis for the appeal isineffectiveness of counsel. G.D.B. says that it is only after an appellant establishes that he has been prejudiced that it becomes necessaryto consider whether counsel’s performance was ineffective. [70] In R.R.W., this Court applied the four-part test set out in Palmer to a fresh evidence appeal based on an admitted, mistakenbelief on the part of Defence Counsel which prevented evidence which could have been helpful to the accused from being adduced attrial.

Chief Justice Green applied the four Palmer criteria to his analysis of the proffered fresh evidence, and ultimately granted theappeal. At paragraph 39 he confirmed the standard to be met for the reception of fresh evidence: ... But the possibility that the jury might ultimately regard the evidence as not determinative of the result is not the test.

Rather, it is, inthe words of Palmer, “such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result.” (Emphasis in original.) [71] In Reference re Truscott (2007), 2007 ONCA 575 , 225 C.C.C. (3d) 321, the Ontario Court of Appeal conducted a

detailed analysis of Palmer. This analysis, which I find helpful, was neatly summarized by Doherty J.A. in R. v. Reeve, 2008 ONCA340, 233 C.C.C. (3d) 104: [66] This court recently examined the Palmer analysis at length in Reference re Truscott (2007), 2007 ONCA 575 , 225C.C.C. (3d) 321 at paras. 80-125.

As explained in Truscott, the Palmer analysis asks three questions: • Is the evidence admissible under the operative rules of evidence? • Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict? • What is the explanation offered for the failure to adduce the evidence at trial and should the explanation affect theadmissibility of the evidence on appeal? [67] Evidence offered on appeal is admissible only if the first two questions are answered in the affirmative.

The first questionrecognizes that the rules of evidence applicable in criminal trials also apply on appeal: R. v. Archer, supra at para. 102. The secondquestion, aptly described as the “cogency” inquiry, has three parts.

The proffered evidence must be relevant to a potentially decisiveissue; the evidence must be reasonably capable of belief; and the evidence must be sufficiently probative that when taken with the rest ofthe evidence adduced at trial, it could reasonably be expected to have affected the result. [68] The third and final inquiry, which need be addressed only if the evidence meets the requirements of the first two inquiries, isoften described as the “due diligence” inquiry. This third inquiry serves a different purpose than the other two.

The reasons theevidence was not adduced at trial are examined to determine whether broader interests necessary to the maintenance of the integrity ofthe criminal justice system, such as finality, merit the exclusion of the evidence despite its admissibility according to the rules ofevidence and its potential probative value. Depending on the reason for the failure to adduce the evidence at trial, evidence offered onappeal may be rejected even though it meets the criteria implicit in the first two inquiries.

An appeal court must examine the reasons forthe failure to adduce the evidence at trial and factor those reasons, along with its assessment of the cogency of the evidence, into anoverall determination of whether the interests of justice require that the evidence be received on appeal: see R. v. Maciel (2007), 2007ONCA 196 , 219 C.C.C. (3d) 516 at paras. 36-55 (Ont. C.A.), leave to appeal to S.C.C. refused, [2007] S.C.C.A.

No. 258. [72] Justice Doherty went on to describe the standard to be met on a fresh evidence appeal so as to justify a new trial, saying atparagraph 72: … it is important to bear in mind that the appellant does not have to show that the evidence would probably have affected the result attrial. Nor, however, is it enough for the appellant to show that the evidence is credible and relevant and could possibly have affected theresult at trial. The cogency bar rests somewhere between those two standards. The appellate court must, to some extent, weigh thepotential probative value of the evidence proffered on appeal.

That weighing must be done in the context of the trial evidence and thepositions advanced by the parties at trial.

If, on that assessment, this court concludes that the … evidence heard on appeal couldreasonably be expected to have changed the result at trial, then the … evidence is admissible on appeal subject to a consideration of theexplanation offered for the failure to adduce the evidence at trial: see Re Truscott, supra at para. 100; Smith, supra at para. 91. [73] Determining that a miscarriage of justice has occurred on a fresh evidence application where ineffectiveness of counsel isalleged is challenging at best, but it is particularly challenging when credibility, as opposed to physical evidence for instance, is adecisive trial issue.

Sexual assault and incest charges involving children do not typically take place in the presence of witnesses. Consequently, the trier of fact in such a case has the especially onerous task of carefully considering the testimony of the complainantand all of the witnesses including the accused so as to determine what evidence to accept before going on to do a W.(D.) analysis inaccordance with R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. [74] Much “fresh evidence” sought to be introduced on appeal touches on credibility in some way.

It is therefore always possiblethat new evidence, however minor, may change the result of a trial. Indeed it is always possible that even when the same evidence isadduced in a different trial, a different result may obtain. But these possibilities remain mere possibilities unless they emanate from freshevidence, which is both admissible and possessed of sufficient probity (characterized by Doherty J.A. in Reeve as cogency) that, whenconsidered with the other trial evidence, could reasonably be said to have affected the trial result. [75] In

summary, in a fresh evidence appeal alleging ineffectiveness of counsel, an appellant must establish that he or she has beenprejudiced by the failure of the proffered fresh evidence to have been adduced at trial. Establishing prejudice involves finding that thefresh evidence is admissible, relevant to a decisive or potentially decisive trial issue, reasonably capable of belief, and sufficientlyprobative, or cogent, in that its absence at trial would have mattered such that a different result could reasonably have obtained had itbeen adduced.

If prejudice is shown, then the reason or reasons why the evidence was not adduced come into question. This issueinvolves consideration of counsel’s competency, and includes whether the failure to adduce the evidence at trial was counsel’s decisionand whether the decision fell within the wide range of acceptable professional assistance (G.D.B. paragraph 27). What Happened at Trial [76] In this case, the complainant’s credibility was determinative of the trial and is central to the appeal. The complainant testifiedgenerally as described at paragraph 6 of the majority decision.

Her evidence was not refuted by the evidence of G.M. [77] G.M. testified that he was very intoxicated when he was dropped off by his friends outside of his home in the early morning of August 8th. He said he had consumed 20 beers that evening. He said after he got out of his friend’s car, he got directly into his own carand drove it up the dirt road four or five kilometers, got a flat tire, and then drove back home. He said when he returned to his home,although he said he does not actually remember getting out of his car and entering his house, he went into his house but never made it

past the kitchen, passing out on his kitchen floor. He said he was found there by his friend several hours later (around 9:30) that morning. He denied that he had had sexual relations with his daughter. [ 78 ] G.M. has no recollection of anything between the time when he got out of his own car and when he was found by his friend. This is a period of several hours. The complainant says she was assaulted when her father returned home from the dance in the wee hours of the morning. This was during the period of time of which G.M. has no recollection. Thus, G.M.’s evidence does not contradict that of the complainant.

However, just because he is unable to provide evidence to contradict that of the complainant is not sufficient to establish his guilt. The burden is always on the Crown to prove, beyond a reasonable doubt, that the alleged offences occurred. In this case, such proof required the trial judge to accept the complainant’s evidence as to the material elements of the offences charged. [ 79 ] G.M.’s defence at trial was that the complainant’s evidence was untrue, and that she was motivated to lie because he and his wife, F.P., had refused the complainant’s request to reside with them.

In order to give effect to G.M.’s defence, the trial judge had to carefully evaluate the complainant’s credibility, including any evidence supporting her motivation to lie. This the trial judge did, and in her oral decision, she provided reasons why she accepted the complainant’s evidence, and why she rejected G.M.’s defence.

The trial judge said that the motivation to lie theory of the defence “does not hold a great deal of water … [as] it was not the complainant who made the events known, it was her mother” and that there was no logical connection between the filing of the complaint and the refusal of the complainant’s request to live with her father. (See also paragraph 34 of the majority decision.). The trial judge’s decision has not been challenged on the basis of error. The Fresh Evidence [ 80 ] Eight affidavits proffering “fresh evidence” were submitted by G.M. for consideration.

I agree with my colleagues that the “fresh evidence” submitted by all of the affiants was known by G.M. and by Defence Counsel at trial, although the evidence of G.O. was only learned by Defence Counsel during the trial. Three of the eight affiants testified at trial. The profferred “fresh evidence” was not adduced at trial for different reasons. [ 81 ] I agree with my colleagues that the “fresh evidence” contained in four of the affidavits relates to the date on which the sexual activity giving rise to the conviction occurred.

Given the trial judge’s acceptance of August 7 th as the relevant dance date, this evidence could not reasonably be expected to have affected the result of the trial. [ 82 ] The remaining “fresh evidence” comes from affiants G.O., L.M., F.P., and R.G. Each affiant’s proffered evidence must be considered in order to determine whether it is admissible and cogent, and whether its failure to have been adduced at trial resulted in prejudice to G.M. As will be apparent, I am of the view that G.M. cannot show that he was prejudiced by any of the proffered fresh evidence not having being adduced at trial.

The evidence of R.G. would not likely be admissible in a new trial and even if admitted, would not likely be sought to be introduced due to its serious prejudice to G.M., and the evidence of G.O., L.M. and F.P. is not sufficiently probative, or cogent, either individually or combined, that when taken with the other evidence adduced at trial, could reasonably be expected to have affected the trial judge’s decision. The Fresh Evidence of G.O. [ 83 ] G.O. did not testify. G.O. was living with D.M. at the time of trial. D.M. is G.M.’s niece. She testified at trial.

It is common ground that Defence Counsel did not know about G.O.’s evidence before the trial. G.M. testified that his friend G.O. found him on the kitchen floor the morning following the August 7 th dance. [ 84 ] G.O.’s affidavit states: 1. THAT I am a friend of [G.M.] I have lived in [the village] all my life and I have visited [G.M.’s] home. 2. THAT I went to [G.M.’s] home one morning and found him asleep on his kitchen floor. I do not know that date.

I was living with [D.M.] at the time. 3. [G.M.] was wearing clothes when I saw him on the floor. [ 85 ] G.M.’s trial evidence was that he had been wearing jeans and a red shirt at the dance. He said that after the dance was over, D.M. had to chase him and drag him into his friend’s car so he could be driven home from a neighboring community where the dance was held to his home about an hour’s drive away and in doing so, she ripped his red shirt. According to G.M.’s evidence, his shirt was ripped “right up the side … from me armpit down to me waist”.

D.M. also testified to this effect and said that the shirt G.M. was wearing was red. G.M. testified that he took off the ripped shirt at home the next morning and discarded it, most likely in the laundry room. [ 86 ] G.O. was cross-examined on his affidavit in this Court. He testified that when he found G.M. one morning on his kitchen floor, G.M. was lying on his back with his hands behind his head, was not snoring, and could have been either sleeping or thinking. G.O. said that G.M. appeared to him to be hungover. He said that G.M. was wearing a t-shirt and sweatpants – not jeans.

He said he thought that the t-shirt was blue. He said, twice, that he had not noticed anything unusual or wrong about the shirt G.M. was wearing. [ 87 ] G.M. asserts that G.O.’s evidence supports his evidence that he passed out on his kitchen floor upon entering his house and remained there until the next morning, and that he did not engage in sexual activity with his daughter. He argues that G.O.’s evidence would have been helpful if it had been adduced at trial. [ 88 ] I do not agree. To my mind, G.O.’s evidence is not only of no assistance to G.M.’s defence, but it refutes it.

The fact that G.M. was intoxicated when he arrived home from the dance is not in dispute. Despite his intoxication, G.M. got into his car and drove it several kilometers up the road and then back before entering his home. While it is possible that he could have passed out at that time, it is equally possible that G.M. passed out after he smoked marihuana with his daughter which, according to the complainant, took place when he was in the bedroom with her just prior to the sexual activity. This scenario is arguably more likely given G.M.’s ability to drive

his car a considerable distance when he got home from the dance. As well, G.M.’s subsequent smoking of marihuana would have addedto his level of intoxication thereby increasing the likelihood of him passing out later. [89] There is also no evidence showing that G.M. did not get dressed after he left the complainant. In fact, G.O.’s evidence is thatG.M. was wearing different clothes than those G.M. and other witnesses say he had on when he came home from the dance. It thereforecontradicts G.M.’s evidence.

It is entirely possible that G.M. visited the complainant in the bedroom, engaged in the criminal activity,dressed himself in different clothing (including a shirt that was not ripped) after leaving the complainant in the bedroom, and then passedout on his kitchen floor. This scenario is also consistent with the complainant’s evidence that her father dressed and undressed duringthe full period of sexual activity. [90] G.M.’s inability to account for himself between when he came home and when he says he was found by G.O. is also important.

There is no evidence supporting a conclusion that G.M. passed out on his kitchen floor immediately upon entering his home and that heremained there until 9:30 a.m. This is a large gap in G.M’s defence theory which G.O.’s evidence does not fill. [91] G.O.’s evidence, while admissible, reasonably capable of belief and not irrelevant, has no probity in support of G.M.’s defence. It tends to be more supportive of the complainant’s version of events than of G.M.’s defence.

Accordingly, it has no cogency, and whentaken with the other trial evidence, could not reasonably be expected to have affected the trial judge’s decision. The Fresh Evidence of L.M. [92] L.M. did not testify at trial. It was intended that he testify, but on the day he was scheduled to do so the weather was bad, andhe was unable to secure transportation to the trial venue. [93] L.M.’s affidavit reads: 1. THAT I am the Nephew of [G.M.] and [N.S.] is my mother. 2. THAT I met [R.M.] in December 2009. 3. THAT in August 2010 she came to visit [G.M.] and before she left she said to me “if I can’t have him nobody will”.

I understoodthat she was talking about [G.M.] and that she was upset she couldn’t live with him. [94] On cross-examination, Defence Counsel asked the complainant whether she had made this statement to L.M. She denied thatshe had made this statement. [95] L.M.’s fresh evidence goes to motive. Motive does touch on credibility, which is a decisive trial issue, although not directly.

The statement may be admissible, although given the complainant’s denial that she made the statement, and the fact that the statementbears on motive which goes to her general credibility and does not relate to the elements of the offence, this would involve a “trial withina trial”, and could be argued to be collateral. If so, it would run afoul of the collateral evidence rule and thus be inadmissible. However,if it is regarded as going to the context and general fabric of the defence (see R. v. Lawes, (SCC), [1997] 3 S.C.R. 694),it could nevertheless be admissible.

If admissible, it is without probity unless it is first proved that the statement was made. If thestatement is proved to have been made, what the complainant meant by it must next be determined. On its face, the statement isambiguous, and it does not admit of an intention to falsely accuse G.M. It is not a statement against interest or an admission, and it is afar cry from hard evidence. The probity in this unproved statement which is subject to

interpretation and relevant to motive only, ishighly speculative. [96] The statement L.M. swears he heard the complainant make bears on her credibility only in a most tenuous fashion. At best, it ismerely an additional fact which if proved, may suggest that the complainant had a motivation to lie. The assessment of evidence by atrial judge involves weighing and balancing it in the context of all of the other trial evidence and can result in a trial judge accepting all,some or none of what a witness says. There were many opportunities for the trial judge to assess the credibility of the complainant.

Thecomplainant was cross-examined on her motivation to lie, and she denied that she falsely accused her father because she could not livewith him. The trial judge dealt with the defence theory that the complainant was motivated to lie and rejected it with reasons. [97] In these circumstances, L.M.’s evidence does not have sufficient probity to come close to meeting the cogency standardrequired for the reception of fresh evidence. L.M.’s evidence is therefore not evidence that, when taken with the other trial evidence,could reasonably be expected to have affected the trial judge’s decision.

The Fresh Evidence of F.P. [98] F.P. did not testify at trial, nor was she cross-examined in this Court. She is G.M.’s spouse and the mother of his three youngestchildren. [99] F.P.’s proffered fresh evidence is: 1. I was the common law spouse of [G.M.] in August of 2010. We have three children together and I understand that [G.M.] has achild, [the complainant], from a previous relationship. 2. I first met [the complainant] when she came to visit us in [the village] in December 2009. 3. In August of 2010 I understand that [the complainant] came to visit our home. 4.

During the summer of 2010, myself and my three children were in [another province] where I was working. 5. I learned that [G.M.] was charged with sexual assault when he was arrested in September 2010.

6. I sent documents to [G.M.’s] lawyer, [J.R.], that we believed were relevant. They included facebook messages between myself and [the complainant], the

schedule of events for [an event], and phone records. These records were sent on October 25, 2010. They are attached to this document. 7. [The complainant] was often mad at myself because she felt that I was trying to keep her away from her father because she believed that I was jealous of her mother. The facebook records show this. 8. After [the complainant] left [the village] in August 2010 she asked to come live with us. [G.M.] did not have the heart to tell her that she could not come to live with us. I told her that we did not have room for her to live with us.

I also did not want her to live with us because of her attitude toward me. I felt that she was angry at me because I was living with her father. 9. I don’t know why I was not called as a witness. I think the evidence I could have given would have helped [G.M.’s] case. [ 100 ] The significance of F.P.’s proffered fresh evidence, according to G.M. and F.P., is that it shows the complainant’s relationship with F.P. to be strained and that she was a difficult child. Some of F.P.’s “fresh evidence” relates to the date on which the offences took place, which is not an issue.

The remaining evidence of F.P. includes Facebook records which predate August 7 th , 2010 and some telephone records. The Facebook records could be interpreted to suggest that F.P. and the complainant had a strained relationship over the complainant wanting to live with her father’s family and F.P. not wanting her to do so. The telephone records, which pertain to a person whose initials are L.P., purport to indicate that no phone call was made from L.P.’s phone to the complainant’s mother on August 8 th .

The suggestions on appeal as to the value of this evidence are that the complainant’s strained relationship with her father’s wife caused her to falsely accuse her father of sexual offences so as to get back at him for refusing her request to live with him, and that the complainant did not make a phone call to her mother on the morning of August 8 th as she said she did. G.M. argues that both of these suggestions affect the complainant’s general credibility. [ 101 ] The complainant was not cross-examined on her relationship with F.P. at trial.

However, she was cross-examined on why she had expressed a desire to live with her father and his family after the offences took place, and she said that she wanted to do so so as to be able to protect her siblings. She also said that F.P.’s expected return to the village would make her feel safer if she were permitted to live with her father and his family. G.M.’s trial testimony concerning the relationship between the complainant and F.P. was that they got along “pretty good”.

His affidavit evidence is to the contrary. [ 102 ] F.P.’s proffered fresh evidence, while likely admissible and reasonably capable of belief, is barely relevant to the charge before the court. With respect to the telephone records, they prove nothing, for there is no evidence that the telephone the complainant used to call her mom was the one to which the records relate. Moreover, this issue is arguably collateral, requiring a tr

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