Docket: 1256 S.G.T. Appellant - v. –, 2011 SKCA 4

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 4 Date: 20110110 Between: Docket: 1256 S.G.T. Appellant - and – Her Majesty the Queen Respondent An order has been made in this case prohibiting publication of any information that could disclose the identity of the complainant pursuant to s. 486(3) of the Criminal Code Coram: Jackson and Smith JJ.A. and Wilkinson J. ( ad hoc ) Counsel: Aaron A. Fox, Q.C. for S.G.T. W. Dean Sinclair for the Crown Alan G. McIntyre for the Law Society of Saskatchewan Appeal:

From: 2006 SKQB 234 – conviction 2006 SKQB 444 – sentence Heard: November 24, 2010 Disposition: Appeal dismissed Written Reasons: January 10, 2011 By: The Honourable Madam Justice Wi lkinson In Concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Smith I. Introduction [ 1 ] The facts of the case are set out in the judgment of this Court regarding the potential application of the “derived confessions rule” ( 2008 SKCA 119 , [2008] 11 W.W.R. 1 ) in a case where a father was convicted of fondling his 13-year-old adopted daughter in a sexually inappropriate manner.

At issue was an apology offered by the appellant to the daughter in an e-mail sent to his wife, which was admitted into evidence without objection from defence counsel. The trial judge construed the e-mail apology as an admission of sexual misconduct.

We ordered a new trial on the basis that the trial judge should have held a voir dire to determine the admissibility of the e- mail in circumstances where there were latent concerns the apology could be tied to an inducement offered during the course of the police investigation—specifically, the investigating officer’s insinuation that an apology might put an end to the criminal complaint. [ 2 ] Our decision was successfully appealed by the Crown to the Supreme Court of Canada ( 2010 SCC 20 , [2010] 1 S.C.R. 688 ).

There, on the view taken by the majority, the deciding factor was that the appellant’s counsel had consented to the admission of the e- mail, and that “[i]n an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel” (at para. 36).

The matter has consequently been returned to us, with the direction that we are to address the remaining grounds of appeal. [ 3 ] The grounds that remain to be considered are: (1) whether fresh evidence should be admitted by this Court with respect to the complaint that the appellant received incompetent or ineffective legal representation at trial; (2) whether there was judicial error in the trial judge’s approach to credibility assessment and

interpretation of the evidence; (3) whether the trial judge erred in rejecting a conditional sentence; and (4) whether the sentence of 18 months imprisonment was demonstrably unfit. II. Background [ 4 ] In brief, the appellant was convicted of sexual assault upon his adopted daughter, A., when she was 12 or 13 years of age and in his care under a shared parenting arrangement.

The offence consisted of three incidents of fondling her vagina—twice when she awoke from her sleep to find the appellant kneeling by her bed and touching her between the legs, and one occasion when they were showering together, a common practice according to the daughter. [ 5 ] The appellant, S.G.T., separated from A.’s mother when A. was 10 years old, just shortly after he had adopted A. as his own child. The appellant and his wife had a biological child together as well, a son, B.

The marital breakdown was acrimonious, but a shared parenting arrangement was achieved and the children spent considerable time in the appellant’s care. [ 6 ] A. disclosed the fondling incidents to a school counsellor, and the counsellor reported the matter to the police who proceeded with an investigation. [ 7 ] In the course of the police investigation of A.’s sexual assault complaint, the appellant agreed to be interviewed and he attended at the police station without legal counsel.

The investigating officer succeeded in obtaining a handwritten apology from the appellant to his daughter after extensive interrogation that brought into question the voluntariness of the statement. [ 8 ] The appellant was charged with sexual assault and he retained trial counsel, an experienced member of the Regina criminal defence bar, to represent him in the proceedings.

[ 9 ] The appellant advised his lawyer the complaint was fabricated by his wife to further her objective of returning to the United States. He also maintained that his adopted daughter was known to be untruthful, and was angry at him for making her do chores. He had also limited her time on the computer and her use of MSN. Alternatively, he suggested she was simply mistaken and there were innocent explanations for the incidents complained of. He explained that he had once entered the shower and forced her to wash her hair when she refused to do it herself.

Another time, he had fallen asleep while they were talking and if there was some unintentional physical contact as the daughter claimed, he had apologized for it the next day. III. The Trial [ 10 ] On a voir dire , the trial judge ruled that the apology made in the course of the police interview was inadmissible and that the police questioning was an attempt to secure a confession from the appellant through intimations that lenient treatment might result if the appellant simply apologized.

The appellant’s written statement was held by the Court to be unreliable and involuntary, and obtained in violation of the confessions rule at common law, relying on R. v. Oickle , 2000 SCC 38 , [2000] 2 SCR 3 . [ 11 ] Although trial counsel succeeded in having the apology made in the police interview excluded, a crucial piece of the Crown’s evidence was an e-mail the appellant sent to his estranged wife after he was charged with sexual assault, but shortly before his first scheduled court appearance.

The e-mail was in response to his wife’s request for a letter authorizing the children to travel to the United States for a holiday. He sent her this message: Relax. When have I ever not done something you’ve requested for the kids. I’m busy too. I have the letter and it’s notorized [ sic ]. I thought long and hard about keeping [B.] back so I could spend this month with him in case I end up going to fucking jail on the 28th, but I wouldn’t do that to him. I hope you realize that I will never be able to coach [B.] or travel outside Canada for a holiday with him or work. I may loose [ sic ] my job because of this.

I don’t care about you, but I very much hope that this will make [A.] get and feel better. I am so, so sorry if I caused her emotional pain. I have to live with the fact that I lost someone I cared for deeply over my stupididty [ sic ]. And now I have to deal with the fact that I stand to loose [ sic ] everything I worked so hard for. I’m sure this makes you happy. You better hope for your sake you never make a mistake bringing up [B.]. You can pick the letter up out of my mailbox, I have a commitment I have to be at tonight.

Make sure [B.] calls me at least once a week, I showed him how to dial collect! [ 12 ] The appellant testified at trial and admitted that the references in the e-mail to jail, and inability to coach his son, travel or work were all references to the feared consequences of a sexual assault conviction. However, the appellant testified the apology to A. had nothing to do with the sexual assault complaint. Rather, he was apologizing for a “cooler incident” when he let A. and some of her young friends share a few drinks at his house.

As a result of this error in judgment, he had to phone all their parents the next day to apologize. The appellant noted that the daughter stopped coming to his house after that incident. [ 13 ] The appellant told the trial judge he had used the term “emotional pain” to mean A.’s pain over losing him as a father, and the fact she would be without his presence in her life as she was growing up. [ 14 ] The trial judge rejected the appellant’s explanation that the apology was in relation to a “cooler incident”.

He viewed the e- mail as an admission on the appellant’s part that he had touched the daughter inappropriately. In the Court’s view, the e-mail was “a crucial piece of evidence in determining the accused’s lack of credibility” ( 2006 SKQB 234 at para. 35 ), and the only possible

interpretation that could be placed on it was that it constituted a confession of guilt and remorse. [ 15 ] The trial judge was persuaded of the appellant’s guilt beyond a reasonable doubt having regard to the credible testimony of the daughter, supported by evidence from the appellant that confirmed certain aspects of her account. The trial judge noted the appellant had admitted to showering with A. on a number of occasions, and that sometimes he got in the shower first and other times she did. He noted the appellant’s admission that they had at times fallen asleep in the same bed.

The trial judge also observed that the appellant had admitted keeping pornography around the house, that he had been somewhat casual about his nakedness around his daughter, and that he had purchased tampons for her and encouraged her to use them. IV. The Sentence Hearing [ 16 ] Following his conviction, the appellant discharged his trial counsel and retained a new lawyer to represent him in the sentencing process. The trial judge imposed a sentence of 18 months imprisonment.

The appellant has concurrently appealed his sentence, saying the trial judge erred in failing to award a conditional sentence or, alternatively, the sentence was demonstrably unfit.

V. The Appellant’s Position on Appeal [ 17 ] The appellant argues he received ineffective or incompetent legal representation at trial. He complains that his trial lawyer failed to call material evidence and, moreover, induced him to provide false testimony under oath.

He sought leave to adduce fresh evidence in support of this argument—evidence that would effectively discredit the sworn testimony he gave at trial. [ 18 ] According to the appellant, his trial lawyer purportedly encouraged him to provide the “cooler incident” as an explanation for the e-mail apology, and also encouraged him to agree with the daughter’s testimony that they had a practice of showering together.

In both instances the testimony was untrue, and contrary to what the appellant had maintained was the case. [ 19 ] The material evidence that his trial lawyer chose not to adduce was that of a female relative who was prepared to testify that the appellant had consulted on matters surrounding A.’s personal hygiene. Her evidence would have established that the appellant only recommended the use of tampons to A. at her suggestion, and this would have counteracted any appearance of impropriety. VI.

The Issues [ 20 ] The threshold issue for consideration is whether fresh evidence should be admitted with respect to the appellant’s assertion that his counsel at trial provided incompetent or ineffective legal representation. [ 21 ] The answer to that question will determine whether or not it is necessary to address issues that would arise from the fact the e-mail was introduced into evidence without opposition, the implications for the defence position had the “true” explanations been offered up at trial, and the impact on the appellant’s rights as a result.

The appropriate areas of inquiry are, of course, influenced by the analysis and observations made by the Supreme Court of Canada on returning the matter to us. [ 22 ] Counsel for the appellant contends that if the fresh evidence is admitted (and only if the fresh evidence is admitted), the Supreme Court of Canada’s decision permits us to forge on and determine: (

i) whether in light of the fresh evidence, the wife can be deemed “a person in authority” for the purposes of the derived confessions rule in circumstances where the appellant firmly believed his wife was responsible for initiating the complaint against him, and (ii) whether in light of the fresh evidence, it has been established that a sufficient connection existed between the e-mail and the police inducement for the purposes of the derived confessions rule. [ 23 ] The issues for consideration that are unrelated to the fresh evidence application, and will be addressed regardless of that outcome, are the following: (

i) Did the trial judge err in his approach to, and assessment of, witness credibility? (ii) Did the trial judge err in his

interpretation of the e-mail? (iii) Was the sentence of 18 months the product of error, or otherwise demonstrably unfit? VII. The Fresh Evidence Application [ 24 ] The fresh evidence application relates only to the issue of ineffective or incompetent legal representation at trial. In keeping with the Court’s protocol in these matters ( see: R. v. Moore , 2002 SKCA 30 , 163 C.C.C. (3d) 343 ; and R. v.

Smith , 2007 SKCA 71 , 223 C.C.C. (3d) 114 ), the fresh evidence was submitted initially in the form of affidavit evidence from the appellant, the Crown, appellant’s trial counsel, and other witnesses, including the appellant’s girlfriend and a female relative. A viva voce hearing was conducted to allow full opportunity for cross-examination.

Waivers of solicitor-client privilege were obtained to allow for the exploration of the material issues. [ 25 ] As we will discuss in greater detail later on in these reasons, a threshold criterion for admission of fresh evidence is that the new information must be clear and convincing. If it fails to meet this elementary requirement, the door to admission is closed. Accordingly, credibility was the key issue. [ 26 ] To assist us in our task, both the videotape and transcript of the police interview were, by agreement of counsel, made

available to the panel, notwithstanding that the appellant’s written statement was excluded at trial. It is important to emphasize that these records were not put forward or considered for the truth of their contents. The Crown required the materials to highlight inconsistencies in the appellant’s testimony. The appellant required the records in order to argue that the e-mail apology was similar, and related, to the involuntary statement extracted from him in the police interview.

The records were accordingly used for a limited purpose in order to gauge reliability and consistency and as an aid to credibility assessment. [ 27 ] The fresh evidence application addressed three specific areas: firstly, the true rationale for the e-mail apology; secondly, the true explanation regarding the showers with A.; and, thirdly, the omission to call the female relative regarding the “tampon issue”. The issue of the e-mail was naturally the predominant focus, and it is to that issue that we turn first. 1.

The fresh evidence regarding the appellant’s explanation for the e-mail apology [ 28 ] The trial judge interpreted the e-mail as an admission of guilt. The appellant’s explanation at trial for the damning apology to A. was the “cooler incident”, and the trial judge found his explanation implausible. The appellant now maintains that the real reason he wrote the e-mail had nothing whatsoever to do with the “cooler incident”.

Rather, it was a spurious apology for sexual misconduct he wasn’t guilty of, but he was induced to make the apology because the police officer suggested the sexual assault complaint might be resolved if he did so. [ 29 ] The appellant testified before us that the only time he spoke to his trial lawyer on the subject of the e-mail was in the moments before he was scheduled to testify in his own defence. His lawyer asked him what he planned to say about the e-mail, which had been admitted into evidence without objection the previous day.

The appellant claims he told his lawyer that he had only sent the e- mail because the police officer told him an apology might lead to charges being dropped. His lawyer responded that they had been successful in keeping the police statement out, and there should be no further reference made to that interview.

The appellant says he then proposed the “cooler incident” as an alternative explanation and his lawyer said they would go with that. [ 30 ] According to trial counsel, the first time he discussed the e-mail with his client was after it arrived in his office as part of the Crown’s disclosure package, over a year before trial. He recalled asking the appellant for an explanation of the e-mail.

The appellant explained that most of the e-mail referred to his fear and anger over the charges, and the consequences of conviction, but his apology to A. was due to an incident involving coolers, and his stupidity in giving alcohol to young girls. The trial lawyer thought the explanation was lame, and said so. [ 31 ] On trial counsel’s version of events, the appellant did not at any time state that the reason for sending the apology was related to the inducement from the police.

The first he heard of that explanation was when he was notified by appellant’s present counsel that an application would be made to admit fresh evidence on the issue of solicitor incompetence. 2. The fresh evidence regarding the showers [ 32 ] A. testified at trial that when she was 12 or 13 years old, she and the appellant still showered together. Sometimes she would get in the shower first, sometimes he would. One time in the shower, he touched her in the private area between her legs.

She later said that the touch made her feel scared. [ 33 ] In this appeal, the appellant contends the truth of the matter is that he only showered with A. once, and only because she was stubbornly refusing to wash her hair. That was the position he had asserted throughout. Before he was about to testify, he asked his lawyer what he thought about the case so far. His lawyer said A.’s testimony about the showers did not hurt them, or was beneficial, in that it showed she had no fear of the appellant. [ 34 ] The trial lawyer agrees he made that comment.

Nonetheless, he didn’t expect the appellant would change his testimony as a result. He believed the appellant was going to testify in a manner consistent with the standpoint he had always taken, namely that he had showered with A. for one purpose only, and that was to make her wash her hair. [ 35 ] The third item of fresh evidence, namely, the omission to call the female relative, is presented more fully later in these reasons. VIII. The governing standard for admission of fresh evidence where an appellant claims to have received ineffective legal representation at trial

[36] Where an appellant contends that he received an unfair trial because of ineffective legal representation, the criteriaestablished in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759 governing the admission of fresh evidence, give way tocase-sensitive considerations.

The test for admission of fresh evidence where an issue of solicitor incompetence is raised is more broadlyconcerned with issues of trial fairness, the regularity of the trial process and avoiding miscarriages of justice. [37] The purpose of introducing fresh evidence is to demonstrate that something happened in the trial process that materiallyinterfered with an accused person’s ability to make full answer and defence. An individual might attempt to show he or she would havedone things differently if the proper legal advice had been provided, or if effective representation had been available.

When this kind offresh evidence meets the required standard for admission and is accepted by a court of appeal, the conviction is quashed as a miscarriageof justice. The miscarriage of justice lies in the unreliability of a verdict produced by a fundamentally flawed process (see: Reference re:Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321; and R. v.

Phillips, 2003 ABCA 4, 172 C.C.C. (3d) 285, affirmed 2003 SCC 57, [2003]2 S.C.R. 623). [38] The Palmer criteria require demonstration that the evidence is relevant, credible and reasonably capable of affecting theresult, and that despite due diligence, it could not be adduced at trial, although the last requirement is relaxed in criminal cases (see:Reference re: Gruenke (1999), (MB CA), 131 C.C.C. (3d) 72 (Man. C.A.), affirmed 2000 SCC 32, [2000] 1 S.C.R.836).

There, in reasons approved by the Supreme Court of Canada, the Manitoba Court of Appeal questioned how the credibility criteria,the third Palmer requirement, could be met by the testimony of someone who candidly admitted lying under oath when charged with aserious crime. [39] The evidential standard for admission where issues of trial fairness are concerned is that the evidence must be relevant tothe remedy sought before the court of appeal, credible and convincing, and sufficient, if uncontradicted, to justify the appellate courtmaking the order sought (see: R. v.

W.(W) (1995), (ON CA), 100 C.C.C. (3d) 225 at 232 (Ont. C.A.); and UnitedStates of America v. Shulman, 2001 SCC 21 at para. 45, [2001] 1 S.C.R. 616). [40] In W.(W.), supra, a case involving an allegation that the conduct of trial counsel resulted in a miscarriage of justice, DohertyJ.A. stated (at p. 232): The Palmer criteria do not, however, apply to all situations where fresh evidence is offered on appeal. Those criteria reflect thebalancing of competing considerations relevant to the interests of justice when fresh evidence is offered to attack a determination made attrial.

The same criteria cannot necessarily be applied where, as here, the fresh evidence is offered for a different purpose. The materialsought to be admitted here is not directed at a finding made at trial, but instead challenges the very validity of the trial process. Thenature of this material and the purpose for which it is offered places it outside the Palmer paradigm… [41] Appellate courts have long been deferential in their assessment of trial counsel’s performance in a criminal trial.

Therationale is that a broad spectrum of professional judgment exists in terms of what might be considered effective trial advocacy. A vastarray of legal stratagems, techniques and approaches could be considered tactically sound, according to the prevailing circumstances. Notwo advocates will have the same kind of presentation, preferences or methodology. [42] In R. v. Joanisse (1995), (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), Doherty J.A. for the Court concludedthat for the appellate court to intervene, the lawyer’s professional judgment must have been unreasonable, and have resulted in amiscarriage of justice.

He stated (at p. 57): Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of theverdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage ofjustice. This court is under a statutory obligation to quash convictions which are the product of a miscarriage of justice: Criminal Code,s. 686(1)(a)(iii). The accused who is the victim of a miscarriage of justice is entitled to at least a new trial.... [43] A Charter breach in relation to ss. 7 and 11(

d) was advanced in R. v. Sutherland (1997), (SK CA), 112C.C.C. (3d) 454 (Sask. C.A.). In that case, an accused appealed his conviction for first degree murder complaining his counsel did notgive him the opportunity to testify and he had thus been denied the right to a fair trial. An application was made to admit fresh evidencein that regard. Trial counsel explained he had concerns about the unreasonableness of his client’s explanation for his behaviour, andwith his ability to withstand extensive cross-examination.

Moreover, testimony of an expert witness permitted the defence theory to beput to the jury without need for the accused to testify. The Court of Appeal held the onus on the appellant to establish incompetentrepresentation that resulted in a miscarriage of justice had not been satisfied. Trial counsel had exercised reasonable judgment in thecircumstances.

[44] There were similar allegations of Charter breach and similarly unsuccessful outcomes for the appellants in R. v. Peepeetch,2003 SKCA 76, 177 C.C.C. (3d) 37, where the appellant argued he had been denied the right to a fair trial as he was not competent toinstruct counsel, and R. v. E.J.B. (1992), (SK CA), 76 C.C.C. (3d) 530 (Sask. C.A.) where the appellant complainedhis trial lawyer had failed to advise him in sufficiently strong terms that he should not testify. [45] The issue landed before the Supreme Court of Canada in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520.

It held, adoptingthe reasoning of Doherty J.A. in Joanisse, supra, that the substantive requirement for admission where an appellant contends that his orher trial counsel was incompetent or ineffective is that fresh evidence will only be received where it is demonstrated that counsel’sconduct fell below the standard of reasonable professional judgment and a miscarriage of justice resulted. [46] In G.D.B., the accused was convicted of sexual assault on his adopted daughter, who testified he began touching her insexual ways when she was 12 years old, culminating in an incident of forced sexual intercourse.

An audiotape of the complainant tellingher mother she had not been sexually molested by her adopted father was deliberately not brought into evidence by defence counsel. Instead, the mother testified about the conversation.

This was a tactical decision on the part of defence counsel, who feared theproduction of the tape (where the mother took a badgering and
brook no argument
tone in questioning her vulnerable daughter)would impair the mother’s credibility and force the accused, who was considered to be a poor prospect as a witness, to testify on his ownbehalf. [47] The accused, G.D.B., was convicted with respect to fondling, but not of the more serious charge of having forced intercourse.On appeal, the accused complained that his trial counsel was incompetent, that the audiotape was relevant to a central issue at trial(credibility of the complainant) and impacted directly on the issue of guilt or innocence.

He contended that the failure to tender theaudiotape into evidence resulted in a miscarriage of justice. The Court of Appeal disagreed, and held that trial counsel had sound tacticalreasons for withholding the tape.

In addition, they concluded that the appellant had not satisfied the criteria for the admission of freshevidence enunciated in Palmer, supra. [48] The Supreme Court of Canada in G.D.B. concluded that an appellant challenging the quality of legal representation receivedat trial must establish that the representation provided by trial counsel was incompetent, and that the incompetent representation resultedin a miscarriage of justice. The Court set out the test in these terms: [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’s conductfell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counselthat are alleged not to have been the result of reasonable professional judgment.

The wisdom of hindsight has no place in this assessment. [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 consider theperformance 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 the groundof no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697). IX. Did the fresh evidence meet the required standard? 1. The e-mail explanation [49] As noted, the onus is on the appellant to demonstrate, by clear and convincing evidence, that his trial counsel’s conduct fellbelow the standard of reasonable professional judgment and that a miscarriage of justice thereby resulted.

Whereas our earlier decisionwas concerned strictly with the e-mail’s potential unreliability as a matter of law, we must now turn our minds to factual issues, and thequality and sufficiency of the evidence offered by the appellant as proof of trial counsel’s misjudgment or misconduct. [50] The appellant’s fresh evidence regarding the e-mail apology lacked the required clarity. Despite his present counsel’s

straightforward characterization of the matter as a case where a lawyer had effectively suborned perjury, the appellant was extremely reluctant to admit the factual underpinning, namely that he had apologized (albeit falsely) for touching A. in a sexual manner . Much hinged on receiving that clear and simple acknowledgment, but the appellant was unwilling to put a name to his actions, or admit that he had given a fictitious apology for sexual impropriety in the hope of reaping some benefit or reward.

He vacillated about describing his “true” explanation for the e-mail apology despite repeated invitations from Crown counsel to do so. In fact, at one point, he actually denied that his intention was to make an insincere apology for inappropriate touching in hope the allegations would go away, until reminded by counsel that this was indeed what he was alleging. He minimized his actions throughout, calling it a “form of apology”. [ 51 ] We were left with a rather oblique impression regarding the appellant’s reasons for the e-mail apology, and what he believed he was apologizing for, and why.

This was further complicated by his explanation in re-examination (Transcript of Proceedings, Court of Appeal, December 10, 2007, p. 128) that the reason for the e-mail apology to A. was because he had possibly been in the wrong, he had been too rough on her about the hair-washing incident, or for turning off MSN, and other poor parenting decisions. [ 52 ] The cogency deficit stems primarily from his ultimate admission (Transcript of Proceedings, Court of Appeal, December 10, 2007, pp. 56-57) that he was prepared to lie under oath in court, all the while knowing the court would never countenance false testimony.

He admitted that it was ultimately his own decision to do so. Any collateral issues with his credibility, and any internal and external inconsistencies in his evidence, tend to pale beside these acknowledgments. He was prepared to provide false testimony for self-serving purposes on that occasion, and we lack confidence that his present avowals are not similarly motivated. [ 53 ] The credibility gap is enhanced by the fact there is little evidence of contemporaneous or timely complaint about the trial lawyer’s supposed misconduct.

In Joanisse , supra at p. 79, the majority considered the appellant’s delay in raising complaint as a factor when dismissing the appellant’s solicitor incompetence claim. [ 54 ] There is no convincing evidence that the appellant voiced complaint about his lawyer’s “inducement to perjury” with respect to the e-mail apology until long after the fact. There is certainly no evidence of any effort to bring the matter to the trial judge’s attention.

There is no evidence the appellant complained to the lawyer who took over the matter and represented him on the sentencing, and there is no evidence he raised it with the author of the pre-sentence report. While incompetency of counsel is raised in general terms in the notice of appeal, there is no mention of subornation of perjury. There is no evidence the appellant complained to his girlfriend who was present at the trial and sentencing, and who testified before us in these proceedings.

The only family member who purported to verify the appellant’s story on the subject of the e-mail apology was the female relative who claims to have advised him on the tampon issue. She was not called to testify before us and thus was not subjected to cross-examination. [ 55 ] The first recorded mention of a complaint that trial counsel had encouraged the appellant to provide false testimony was over ten months after the appellant’s conviction.

The specifics of the complaint were raised in a letter written by the appellant’s present solicitor for the purpose of apprising trial counsel of the allegations being advanced in the fresh evidence application. [ 56 ] Overall, we are not persuaded that the appellant’s account regarding the e-mail apology is credible. In our view, it is inherently improbable that an experienced criminal trial lawyer would counsel his client to abandon a seemingly beneficial explanation for damning evidence in favour of a highly implausible excuse, particularly one that was clearly false.

T he appellant’s evidence regarding the e-mail apology was unsatisfactory, far from clear or convincing, and failed to satisfy the required standard for admission. 2. The showers [ 57 ] As to the showers, however, the fresh evidence is not as equivocal. Trial counsel candidly admitted that when the appellant asked him how things were going, he took the view that the complainant’s evidence about the showers did not hurt them, or was helpful in the sense it demonstrated A. had no fear of the appellant. However, he did not expect or suggest that the appellant would change his position as a result.

He fully expected the appellant to testify, as he had always maintained, that his entering the shower was simply a corrective action taken in the interests of A.’s personal hygiene. [ 58 ] In light of trial counsel’s admission, the issue is whether this fresh evidence convincingly establishes that trial counsel’s conduct fell below the standard of reasonable professional judgment, such that a miscarriage of justice occurred. [ 59 ] The appellant admitted that his lawyer’s observations regarding A.’s shower evidence were enough to persuade him to change his testimony, and that he had recognized, on his own, that the evidence was beneficial (Transcript of Proceedings, Court of Appeal, December 10, 2007, pp. 90-91).

He acknowledged his lawyer did not tell him to lie, and had not used those words.

[60] A defence lawyer’s advice to his client in a criminal case must be open and undisguised, clearly disclosing what the lawyerhonestly thinks about the merits and probable results (see: Beverley G. Smith, Professional Conduct for Lawyers and Judges, looseleaf,2nd ed. (Fredericton, N.B., Maritime Law Book, 2002), c. 8, para. 85, fn. 136, and cited in support, the Saskatchewan Code ofProfessional Conduct, c. III, Commentary 1. The defence lawyer must not suggest that another person committed the offence, or callevidence that the lawyer believes to be false.

However, the client may appropriately be advised what defences are available, but, as in thecase of a witness, the lawyer must not instruct the client what to say. [61] In that vein, and as the author’s footnote suggests, experienced criminal counsel have contended that it is permissible for adefence lawyer to comment on evidence or let a client know that the client’s story is so incredible no one would believe it, providing thelawyer does not point out an alternative. Active misconduct was found in R. v. Sweezey (1987), (NL CA), 66 Nfld. &P.E.I.R. 29 (Nfld.

C.A.) where a lawyer was sentenced to 12 months imprisonment for specifically directing a witness to be forgetful andevasive on the stand. [62] Professor Smith also cites Monroe H.

Freedman’s work, Lawyers’ Ethics in an Adversary System (Indianapolis-New York:The Bobbs-Merrill Company, Inc., 1975) where two chapters are devoted to the difficult questions, “Perjury: The Criminal DefenseLawyer’s Trilemma” and “Counselling the Client: Refreshing Recollection or Prompting Perjury?” Professor Freedman writes (at p. 59): … Unquestionably, one of the lawyer’s principal functions is to advise the client about the law, and that advice must include anunderstanding of what facts are relevant to the case and why.

But when, if ever, does it become improper for the attorney to perform thatfunction because the client might put that legal advice to improper purposes? The particular focus of this

chapter is on giving advice that might induce the client to commit perjury…. [63] Professor Freedman observes at p. 67 that questioning a client is an essential part of interviewing and preparing a witnessfor trial, but even straightforward questions of fact may play a

part in inducing “importation of detail” into the process of remembering. [64] An area that is particularly fraught with difficulty is the discussion with the client on the subject of “intent”. Freedmannotes that there are innumerable instances in which a person’s intent is crucial, despite the fact that he or she may have had no intent atall in the sense contemplated by law.

He uses the example of an engaged couple contributing joint funds to a business venture, andwhose state of mind may not have conformed to any of the modes of “intention” the law might look for, should a question arise whetherthe transaction was a joint venture, a gift or a loan. Nonetheless, a lawyer will explain the applicable law and what the legal significancewould be. A client might, on being advised of the favourable tax advantages related to making a gift, decide that that was indeed theintention underlying the transaction.

However, if the engagement ended, the client might readily conclude that the transaction wasintended to be a loan. [65] There are many situations where a lawyer may have to apprise a client of the significance of a certain answer, despite thedanger the client might take it as a suggestion.

He cites a colleague, Professor John Noonan, to this effect (at p. 71): … “A lawyer should not be paternalistic toward his client, and cannot assume that his client will perjure himself.” …“Furthermore, a lawyer has an obligation to furnish his client with all the legal information relevant to his case; in fulfilling this duty toinform his client, a lawyer would normally not violate ethical standards.” [Footnote omitted.] [66] The evidence from the transcript and the appellant’s responses on cross-examination on his affidavit in this Court persuadeus that his decision to alter his evidence regarding the showers was his own.

Although he was motivated by the trial lawyer’s observationthat A.’s testimony was likely to help his case, there is no basis before us to conclude that trial counsel encouraged the appellant to alterhis own testimony or expected that he would do so. The transcript of the appellant’s evidence-in-chief and the questions put to him bytrial counsel would indicate the contrary. [67] The onus is on the appellant to clearly establish the facts upon which the claim of solicitor ineffectiveness is based, and to doso convincingly: Joanisse, supra at pp. 59-60.

In terms of the fresh evidence regarding the e-mail and the showers, the appellant has notmet the threshold for admitting fresh evidence according to the standard commonly applied. This leaves only the complaint that trialcounsel failed to call material evidence. 3. The failure to call material evidence

[68] On this issue, there is no dispute that certain evidence was omitted as a result of trial counsel’s exercise of professionaljudgment, and his decision that the evidence was unnecessary. He admitted he saw no reason to call the female relative as a witnessregarding the issue of the tampons. He didn’t see the issue as having sexual overtones, and didn’t want to give the matter any indelicateor unnecessary emphasis.

The decision was a tactical one and cannot be termed an unreasonable exercise of professional judgment. [69] Disagreement exists as to whether the omitted evidence was material, in the sense that it could have affected the result. Inour view, the tampon evidence was a collateral issue and it has not been demonstrated that the evidence, if admitted, would have made adifference to the outcome at trial. Suffice it to say that an analysis of the trial judge’s reasons does not indicate the tampon evidence wasin any way considered as “propensity” evidence as the appellant suggests.

The trial judge expressly stated it was not evidence on thecharge itself. The fact that certain aspects of A’s evidence were confirmed by the appellant simply offered the trial judge someconfidence in A’s credibility. [70] Confirmatory evidence plays a key role in determining whether it is safe to rely on the testimony of an impugned witness. Itdoes not necessarily relate to the facts at issue or tend to incriminate the accused, but is simply evidence that reassures the trier of factthat, despite other problems the witness may have in terms of credibility, the witness may nonetheless be trusted: R. v.

Boucher, 2006QCCA 668, leave to appeal to S.C.C. refused, [2006] 2 S.C.R. vi. [71] In conclusion, on all aspects of his complaint asserting ineffective representation, the appellant has failed to demonstrate byclear and convincing evidence that his trial counsel’s conduct fell below the standard of reasonable professional judgment and that amiscarriage of justice was the result. X. The trial judge’s alleged errors 1.

The onus of proof [72] The appellant argues that the trial judge approached the credibility issue by asking “which version of the matter, thecomplainant’s or the accused’s, is true” rather than by asking whether, on the totality of the evidence, the Crown’s case had been provedbeyond a reasonable doubt, and whether the complainant’s evidence was sufficiently reliable to support a conviction. [73] The trial judge instructed himself in accordance with R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 (see paras.23-24 of the trial judgment). He explained his reasons for finding A. to be credible, and the appellant not.

The trial judge found A.’stestimony was corroborated in many respects and was, most importantly, bolstered by the appellant’s e-mail apology. [74] The appellant’s arguments regarding A.’s unreliability as a witness centered on her inability to recall the dates the fondlingoccurred, the fact she had a motive to lie (a desire to return to California), and had demonstrated a propensity for lying in other situations. [75] A. was able to recall the timeframe the incidents occurred within, by reference to her age and other events.

The inability torecall specific dates did not affect her reliability. [76] At trial, there was no evidence A. bore resentment against the appellant for preventing their move. There was no evidencethat the issue of moving to California arose before A. made the complaint to the school counsellor in 2004.

The evidence of her motherwas that discussions about a move to California did not arise until the spring of 2005, almost a year after the appellant was charged withthe offence. [77] The trial judge recognized that A. had been untruthful about some things when she was younger, but said that did notnecessarily mean she was being untruthful about the important matters before the Court. He looked for confirmatory aspects that wouldprovide comfort the witness was telling the truth. The trial judge did not overlook any inconsistencies in the evidence or fail to addressthem. [78] In R. v.

C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, the Supreme Court of Canada once again considered the formulation in W.(D.), supra, in the context of a sexual assault case in circumstances where the complaint was that the trial judge had shifted the onus tothe accused to show he was not guilty. The paramount question is whether on the whole of the evidence the judge was left with areasonable doubt about the guilt of the accused. In the Court’s view, the trial judge’s reasons demonstrated an understanding that findingthe complainant credible did not mean that the onus shifted to the accused to show that he was not guilty.

[79] The Supreme Court reiterated that the purpose of W.(D.) is to ensure that judges and juries are aware their verdicts should notsimply be based on a choice between the accused’s and Crown’s evidence, but on whether, based on the whole of the evidence, they areleft with a reasonable doubt regarding the accused’s guilt.

The majority in C.L.Y. said that a trial judge is “presumed to know a principleas elementary as the presumption of innocence” (at para. 10). [80] Here, the trial judge did not shift the burden of proof or reject the appellant’s evidence on grounds unsupported by the record.The trial judge correctly directed himself in law and conducted a detailed examination of the evidence. His analysis shows that heconsidered the evidence in its totality, assessed the credibility of the witnesses with reference to the live issues in the case, and arrived atfindings of fact that were not unreasonable.

His analysis does not reveal any error within the meaning of R. v. B.(G.), (SCC), [1990] 2 S.C.R. 57, and R. v. Morin, (SCC), [1992] 3 S.C.R. 286. 2. Material misapprehension of evidence [81] The appellant says the trial judge misconstrued the e-mail and the appellant’s explanation for it.

The appellant further arguesthe trial judge gave the evidence undue weight in his assessment of the appellant’s credibility. [82] The first complaint arises out of the reasons for judgment at para. 32 (2006 SKQB 234) where, in order to illustrate how theappellant’s evidence had been shaken in cross-examination, the trial judge treated the appellant’s explanation for the e-mail as though hehad offered the “cooler incident” as the reason for each and every comment made in the e-mail message. The trial judge pointed out theunlikelihood that the accused might be facing jail over giving coolers to children.

He said the concern about being unable to coach hisson, or travel with him, could only be a reference to the sexual assault issue. [83] However, the appellant’s trial testimony was that it was only the portion of the e-mail where he apologized to A. that wasrelated to the “cooler incident”. He was clear in stating that his concerns about going to jail, or being unable to travel or coach his son,were fears related to the sexual assault charge.

The appellant is concerned that the “implausibility factor” may have been increased if thetrial judge believed the appellant was trying to attribute his fear of jail, and inability to coach or travel, to the “cooler incident” as well. [84] Where a trial judge misapprehends the evidence in some material particular, and that error plays an essential

part in the trialjudge’s reasons for conviction, then the verdict is not based on the evidence and is not a “true verdict”. It follows that an appellant whodemonstrates a conviction was based on a material misapprehension of the evidence has received an unfair trial, and a miscarriage ofjustice has occurred (see: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, per Binnie J.). Here, however, the trial judge did notmisinterpret the general intention of the e-mail, or the critical portion in particular, namely the apology to A.

Nor did the trial judgemisunderstand the reason offered for the apology, which the appellant had at that time insisted was solely related to the “coolerincident”. [85] The applicable test is whether the verdict is one that a properly instructed trier of fact, acting reasonably, could have rendered(see: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 at p. 186). [86] In R. v.

Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, the Supreme Court of Canada held that where a trial judge rejects animplausible explanation offered by an accused for inculpatory conduct (the inculpatory conduct here being the apology to A., theimplausible excuse being that the “cooler incident” made him do it), this can form part of a reasonable evidentiary edifice supportingconviction.

The rejection of the accused’s explanation precludes any reasonable inference that he had a better or exculpatory reason forhis conduct. [87] Given the evidence before the trial judge, and the improbable explanation given by the appellant for the apology portion ofthe e-mail, the trial judge’s conclusion that the apology constituted an admission of the offence charged was not an unreasonable one. [88] For these reasons, the appeal against conviction must fail. XI. The Sentence Appeal

[89] The trial judge imposed a sentence of 18 months imprisonment. In assessing the fitness of a trial judge’s sentence, appellatecourts apply a deferential standard of review, recognizing that sentencing judges have a broad discretion under the Criminal Code todetermine what constitutes just and appropriate punishment.

The presiding judge understands the subtle nuances of the case, witnessesfirst-hand the emotional impact on the victim, adjudges the sincerity of the offender’s expression of remorse or willingness to makeamends, and assesses the depth of the moral fault lines that underlie the offending behaviour. The sentence reflects the communal andsocietal concerns at the offending behaviour. [90] In the absence of an error in principle, failure to consider a relevant factor, or overemphasis of proper factors, a court ofappeal will intervene only if a sentence is demonstrably unfit (see: R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at paras.89-92 and R. v. L.M., 2008 SCC 31 at paras. 14-16, [2008] 2 S.C.R. 163). [91] The fact that the offence was committed on a child is an aggravating factor for the purposes of s. 718.2(a)(ii.1) of theCriminal Code, and a feature which elevates denunciation and deterrence above all other sentencing considerations by virtue of s. 718.01which states: 718.01.

When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation and deterrence of such conduct. [92] The appellant contends the trial judge erred in suggesting a conditional sentence was unavailable for an individual convictedof sexual assault. A fair reading of the judge’s sentencing decision indicates he made no such assertion. At no time did the trial judgesuggest a conditional sentence could never be awarded for an offence of sexual assault.

Rather, he stated it would be inappropriate toimpose one where the circumstances of the offence involved a breach of the trust inherent in a parent-child relationship. As a generalrule, that would be the case where denunciation and deterrence are, by statutory mandate, the paramount objectives in the considerationof sentence. [93] This Court did emphasize in R. v. S.(M.), 2003 SKCA 33, [2003] 11 W.W.R. 27, that general deterrence and denunciationplayed a significant role in relation to sex offences, even those placed along the lower end of the scale of gravity.

The authorities cited insupport of the proposition included R. v. R.A.R., 2000 SCC 8, [2000] 1 S.C.R. 163. In that case, the Supreme Court of Canada set aside aconditional sentence as unfit in a case involving the sexual assault of a young woman. The assault consisted of a single incident wherethe offender inserted his finger into a young woman’s vagina. The parties were not related, and there was no breach of trust involved inthe commission of the offence.

In setting aside the conditional sentence and restoring a one-year term of incarceration, the majorityrelied in significant measure upon the need for general deterrence and denunciation. [94] In S.(M.) there were four to seven incidents of fondling, or instances where the father rubbed the child against himself forsexual stimulation when she was aged seven to nine. The offender’s conduct was admittedly more intrusive than the conduct at issuehere, but the custodial sentence imposed was nine months, largely due to the mitigating factors, and there were a number of them.

Tobegin with, the father took responsibility for what he did, admitted to the whole of it, and entered a plea of guilty to the charge. Verysignificant in the Court’s view was that he “spared his daughter the wrenching experience of having to testify and left it easier forforgiveness and reconciliation to set in” (at para. 35). The daughter had forgiven him and there was no doubt regarding the father’sgenuine and profound sense of remorse. [95] In R. v.

T.(L.W.), 2008 SKCA 17, 230 C.C.C. (3d) 220, a sentence of 18 months imprisonment and 18 months probation wasdeemed the fit and appropriate sentence for a 43-year-old farmer convicted of three incidents of fondling the genitals of young peoplethat he socialized with. In R. v. Iron (L.J.), 2005 SKCA 84, 269 Sask. R. 51, this Court substituted a 20-month prison sentence in placeof a conditional sentence of two years less a day, where an individual was convicted of fondling the breasts and vagina of an adult victim. [96] The Crown says the circumstances in R. v. G.(H.), 2003 SKCA 88, 238 Sask.

R. 147, are virtually indistinguishable from thesituation here, and the case provides a complete answer to the appellant’s claim that his sentence was unfit. There, the accused wasconvicted, after trial, of sexual assault upon his 12 or 13 year old grandniece. The offending behaviour consisted of a single occasionwhen he touched and digitally penetrated her vagina with his finger. The child suffered feelings of betrayal and isolation similar to thoseexperienced by A. in this case.

An 18-month conditional sentence was imposed at trial but set aside on appeal to this Court, whichsubstituted a custodial term of two years less a day. [97] The accused in G.(H.) was credited one year, less a day, for time served under the conditional sentence. This Courtpronounced the conditional sentence unfit, and wholly inadequate to denounce and deter the breach of trust that had occurred. It notedthe absence of a guilty plea, and the fact the victim had to testify twice, at the preliminary hearing and at trial. The pre-sentence reportindicated the offender had failed to take responsibility.

In the Court’s view, a custodial sentence was required in order promote a senseof responsibility in the offender.

[ 98 ] There are obvious similarities between that case and this. The sentence imposed by the trial judge here was demonstrably fit, and within the range of sentences imposed in similar circumstances and for similar offenders. The sentence appeal is, accordingly, dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 10th day of January, A.D. 2011. “Jackson J.A.” ______________________ Jackson J.A. I concur “Smith J.A.” _______________________ Smith J.A. I concur “Jackson J.A. for” ___________________ Wilkinson J.