R. v. G.K.N., 2016 NSCA 29

Nova Scotia Court of Appeal Citation: R. v. G.K.N. , 2016 NSCA 29 Date: 20160421 Docket: CAC 426699 Registry: Halifax Between: G.K.N. Appellant v. Her Majesty the Queen Respondent Restriction on Publication: s. 486 Criminal Code Judge: The Honourable Justice Peter M.S. Bryson Appeal Heard: November 30, 2015, in Halifax, Nova Scotia Subject: Miscarriage of justice. Ineffectiveness of counsel. Similar fact evidence

Summary: G.K.N. appealed his conviction for sexual interference, arguing the trial judge was wrong to admit similar fact evidence, incorrectly instructed the jury regarding it, and that the ineffectiveness of his counsel caused a miscarriage of justice. G.K.N. had pleaded guilty in 1992 to indecent assault. Issues:

(1) Did the judge err in admitting similar fact evidence?

(2) Did he err when instructing the jury regarding its use?

(3) Was counsel’s assistance ineffective, resulting in a miscarriage of justice? Result: Appeal dismissed. Judge correctly identified and applied the law regarding similar fact evidence. He correctly instructed the jury on its use. While counsel’s strategy of not cross-examining the similar fact complainant involved some risk, it was a judgment call to concentrate on the current complainant. There was no miscarriage of justice in fact or in appearance of trial fairness. Other allegations of inappropriate concessions were either ill-founded or appropriate judgment calls.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 19 pages. Nova Scotia Court of Appeal Citation: R. v. G.K.N. , 2016 NSCA 29 Date: 20160421 Docket: CAC 426699 Registry: Halifax Between: G.K.N. Appellant v. Her Majesty the Queen Respondent Restriction on Publication: s. 486 Criminal Code

Judges: Beveridge, Bryson and Van den Eynden, JJ.A. Appeal Heard: November 30, 2015, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Bryson, J.A.; Beveridge and Van den Eynden, JJ.A. concurring Counsel: Luke A. Craggs, for the appellant Mark Scott, Q.C., for the respondent Stacey Gerrard for Murray Judge Order restricting publication - sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C 34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with stepdaughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C 34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(

i) to (iii). Reasons for judgment: Introduction [ 1 ] G.K.N. asks this court to set aside his convictions for touching and inappropriate sexual behaviour with his step-daughter, M., when she was between seven and eleven years old. He says the trial judge was wrong to have admitted similar fact evidence and incorrectly instructed the jury with respect to that evidence.

He adds that his trial counsel provided ineffective assistance that caused or compounded the alleged errors of the trial judge. [ 2 ] G.K.N. adduced fresh evidence with respect to his allegations of ineffective counsel against his trial lawyer, Murray Judge. His allegations against Mr. Judge largely depend on whether the trial judge actually erred in admitting similar fact evidence of prior misconduct with E.R. in the mid-1970s. The Facts [ 3 ] The police charged G.K.N. with sexual touching and inappropriate sexual behaviour with M., between 2008 and 2011. These

incidents occurred in three separate areas in the house that M. occupied with her mother, brother, and her step-father, G.K.N. All occurred while her mother was away. [ 4 ] When she was seven to eight years old, M. would sometimes fall asleep or pretend to be sleep on the couch in what was known as the “red room”. G.K.N. would enter wearing a bathrobe and would sometimes masturbate in front of her. On a couple of occasions, he rubbed her stomach with his penis and hand.

He also tried to put his penis in her mouth and touched her vagina. [ 5 ] The second set of incidents occurred in the master bedroom when M. was between seven and nine. She says she would crawl into bed with G.K.N. because she did not want to sleep alone or was having nightmares. She would sleep with her back to G.K.N. He would masturbate, and she could feel his penis touching her back or buttocks. Sometimes he would touch her shoulders, thighs, stomach, buttocks and breasts. On other occasions he would kiss her neck and lips. [ 6 ] The third set of incidents happened in the bathroom shower.

When M. was approximately eleven, G.K.N. would enter the bathroom while she was showering and begin masturbating. She could see him through the glass shower doors. He would open the door, put his penis in the shower and masturbate. Sometimes he would touch her back and shoulders if she had her back to him. If facing him, he would touch her breasts and shoulders. Similar Fact Evidence from E.R. [ 7 ] Following a voir dire , the jury heard evidence from E.R. of events in the 1970s. E.R.’s older sister was then married to G.K.N. E.R. stayed with them periodically starting when she was nine years old.

She described being invited into bed with G.K.N. when her sister was not present. He would fondle her breasts and between her legs. He would rub her back with his penis. He also did this on the couch in the living room. Occasionally she would wake in her bedroom and find G.K.N. standing over her bed masturbating. He wouldn’t say anything. These offences all occurred at O.P., Shelburne County. [ 8 ] G.K.N. and E.R.’s sister later moved to another home in Shelburne County. E.R. described similar behaviour there. G.K.N. exposed himself in the shower. He also masturbated where E.R. could see him.

E.R. described G.K.N. masturbating in the car while driving. On occasion, he masturbated over her when she was in bed. In all of these cases G.K.N. would not say anything. [ 9 ] In 1992, G.K.N. pled guilty to indecently assaulting E.R. He now maintains that he was actually innocent and only pleaded guilty because he lacked the means to defend himself, and owing to pressure from his family to resolve the matter. Did the Trial Judge Err in Admitting E.R.’s Similar Fact Evidence? [ 10 ] G.K.N. alleges that the trial judge, the Honourable Justice Felix Cacchione, erred in two respects.

First, he failed to consider the difference in the acts described by E.R. and M. He adds that in any event the acts are not distinctive enough to constitute similar fact evidence. Second, he complains that the trial judge misapprehended the purpose of the similar fact evidence. [ 11 ] Both parties rely upon R. v. Handy , 2002 SCC 56 , as setting forth the criteria for admissibility of similar fact evidence. To summarize the well-known test in Handy : the proposed evidence must be so similar that it would be “an affront to common sense to suggest that the similarities were due to coincidence”.

The trial judge must also be satisfied that the probative value of the evidence offered outweighs its prejudicial effect. [ 12 ] The alleged similarity of the evidence is contextual, and depends on the purpose for which it is adduced: [91] The degree of similarity required to justify reception in a case will depend on the issues raised in the case, the purpose for which the evidence is proferred and the other evidence in the case: Handy at para. 78 . … ( R. v.

J.M. , 2010 ONCA 117 ) [Emphasis added] [ 13 ] Accordingly, G.K.N.’s challenge to admissibility must be assessed in light of the purposes for which it was adduced.

These are discussed further below. [ 14 ] In deciding that E.R.’s evidence was sufficiently similar to be highly probative, the trial judge noted that in both the case of E.R. and M.: • G.K.N. was in a position of trust with respect to both young girls; • the periods of abuse and ages of the two were similar; • the witnesses described being touched or fondled while in bed with G.K.N.; • both witnesses described being rubbed by G.K.N. with his penis; • both described exposure in a bathroom and masturbation when a shower was being taken; • both witnesses described masturbation while G.K.N. was driving; • E.R. described G.K.N. masturbating by her bed while she was young and pretending to sleep, and M. indicated that he did so while standing in the doorway to her room. [ 15 ] In his oral submissions, G.K.N. adds that the trial judge failed to notice these differences:

• The incidents were many years apart. • E.R. said nothing about attempted oral sex, (M. had described a couple of such attempts). • E.R. never testified that G.K.N. told her not to say anything to anyone else whereas M. was told not to inform her mother. • E.R. never described kissing of her neck or lips as M. had described.

G.K.N. then faults the trial judge for a “boiler plate” probative-prejudicial effect analysis, without considering probability and the“unlikelihood of coincidence”. [16] G.K.N. objects that the trial judge did not do a proper prejudicial-probative analysis because “it is not mentioned in hisreasons”. The need for and adequacy of reasons is contextual and depends on the adjudicative setting: R. v. Sheppard, 2002 SCC 26 at ¶19. In R. v.

M. (R.E.), 2008 SCC 51, Chief Justice McLachlin put it this way: [43] The answer is provided in Dinardo and Walker — what is required is that the reasons, read in the context of the record and thesubmissions on the live issues in the case, show that the judge has seized the substance of the matter. Provided this is done, detailedrecitations of evidence or the law are not required. [17] More detail may be required to address difficult principles of unsettled law. But regard is given to the “time constraints andgeneral press of business in the criminal courts”, (R. v.

M. (R.E.), ¶¶ 44-45, citing Sheppard). [18] In this case a highly experienced trial judge was applying well-settled law in a voir dire upon which a jury was waiting. Theparties made written and oral submissions, citing the leading case (Handy). The trial judge knew the law and grasped the issues andevidence. [19] This brings us to the second objection to the trial judge’s admissibility ruling. G.K.N. says that E.R.’s evidence had nothing todo with M.’s testimony; rather the question was whether G.K.N. had a propensity to engage in specific acts.

But with respect, in thecircumstances of this case, this is a distinction without a difference. It is well settled that similar fact evidence is admissible to proveactus reus. [20] The Crown identified in its oral and written submissions that the issues to which the similar fact evidence was directed wasmodus operandi and actus reus. These both engaged M.’s credibility because they address whether and how something occurred. TheCrown submits, in cases such as this, that credibility is inextricably linked to proof of actus reus, citing R. v. Titmus, 2004 BCCA 633,¶¶ 37-40, and R. v. T.B., 2009 ONCA 177, ¶¶ 21-24.

I agree. [21] The purpose of admitting E.R.’s evidence can also be gleaned from the judge’s instructions to the jury in which he said thatthey could, but did not have to, find a pattern of similar behaviour confirming M.’s testimony that the offences took place. [22] The evidence of E.R. revealed striking similarities to M.’s evidence regarding location, relationship, age, and events justifyingthe trial judge’s finding of a similarity warranting admissibility. I would not dismiss them as the “standard fare” in such cases, asG.K.N.’s counsel described them.

And given the purpose for which the evidence was admitted, distinctiveness of the events themselvesmay be diminished: Where the evidence of similar acts is summoned in support of proof of the actus reus, it is not an invariable requirement that there be astrong peculiarity or unusual distinctiveness underlying the events being compared: Handy at para. 81. The cogency of evidence ofsimilar acts may arise from the repetitive and predictable nature of an accused’s conduct in closely defined circumstances.

Whatbecomes necessary in such cases is a persuasive degree of connection between the events of alleged similar acts and the offence chargedin order to be capable of raising the necessary inferences: Shearing at paras. 48 and 50. The underlying unity need not lie in thedistinctive nature of the acts themselves but may reside in the circumstances in which those acts occurred. (R. v. J.M., 2010 ONCA 117) [Emphasis added] [23] The trial judge understood the issue to which the similar fact evidence was directed. This informed his probative-prejudicialeffect conclusion.

He recognized that a strong directive would have to be given to the jury about the use that could be made of it. Hegave that directive. His ruling was reasonable and on the probative-prejudicial analysis, entitled to deference: R. v. Ward, 2011 NSCA78 at ¶ 28; R. v. B.(C.R.), (SCC), [1990] 1 S.C.R. 717, at ¶¶ 28-29; Titmus, at ¶¶ 48, 53. [24] I would dismiss this ground of appeal. Charge to the Jury [25] G.K.N. complains that the trial judge mischaracterized similar fact evidence and therefore erred in his instructions to the jury.

He refers to the trial judge’s instructions when he said: A chain of reasoning, as I told you earlier, that goes because he did it in the past, he must have done it, is not permissible. That’s calledpropensity reasoning and you cannot use it.

In other words, you cannot infer that the accused has a disposition or character to commit theoffences charged and you cannot use the evidence of past misconduct to punish him for the offences presently charged by finding himguilty. [26] G.K.N. goes on to refer to this charge to the jury: A chain of reasoning, as I said to you before that goes along the following lines is impermissible. Because he may have done something

in the past that was wrong, he must have done what’s alleged here. That’s called propensity reasoning and it is not permissible.

You cannot use such reasoning during your deliberations. [ 27 ] G.K.N. says that the judge instructed the jury that propensity evidence was something other than propensity evidence, and therefore he failed to recognize it for what it was and failed to keep its dangerous potential front and centre. [ 28 ] Finally G.K.N. refers to this allegedly erroneous instruction: You may, but do not have to, find that there is a pattern of similar behaviour that confirms M.’s testimony that the offences took place. [ 29 ] He reiterates his argument under his first ground of appeal that G.K.N.’s alleged propensity had nothing to do with corroboration or confirmation of M.’s testimony. [ 30 ] Before considering G.K.N.’s complaints in this context it is useful to consider how courts of appeal should review a jury charge.

In R. v. Araya , 2015 SCC 11 , the Supreme Court cautioned: [39] When considering an alleged error in a trial judge's jury instructions, "[a]n appellate court must examine the alleged error in the context of the entire charge and of the trial as a whole". Further, trial judges are to be afforded some flexibility in crafting the language of jury instructions. While trial judges must seek to ensure that their instructions adequately prepare the jury for deliberation, the standard for jury instructions is not perfection.

Appellate review of jury instructions is meant to "ensure that juries are properly - not perfectly - instructed". This Court has emphasized that the charge generally should not be "endlessly dissected and subjected to minute scrutiny and criticism". As Bastarache J. has summarized it: The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge.

The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case. Appellate courts should not examine minute details of a jury instruction in isolation.

"It is the overall effect of the charge that matters". […] [52] Parsing the language in one particular sentence to determine whether it was sufficient to warn of an impermissible line of reasoning, without taking into consideration the greater context of the jury instructions and the trial itself, represents the kind of dissection and minute scrutiny this Court warned against… [Emphasis added; citations omitted] [ 31 ] G.K.N.’s complaint about Justice Cacchione’s instructions is misplaced.

The trial judge was quite correct to warn the jury against general propensity reasoning - that the accused must have committed the acts complained of by the complainant because he was a “bad person” in light of his past discreditable conduct. The judge was right that the law proscribes such reasoning. But that does not detract from the probative value of a specific propensity to which properly admitted similar fact evidence is directed. [ 32 ] The judge quite correctly focused on the similarities between the events complained of by M. and E.R.

It is these similarities which go beyond a possibility of coincidence that makes the propensity evidence admissible, in view of the purpose for doing so. Criticizing the trial judge for cautioning against general propensity reasoning takes those instructions out of context. It is plain that the judge understood the difference between propensity reasoning from bad character and propensity reasoning arising from specific similar conduct. As the Crown submits in its factum, his instructions reflect that understanding: 47.

The trial Judge specifically alerted the jury to the potential similarity between the evidence of E.R. and M.

He connected this recitation to the issue: If you conclude that there is a pattern of similar behaviour between the things that G.K.N. has done in the past and the conduct which has been charged in this case, you may use that evidence of that other similar behaviour to conclude or help you conclude that the offences here alleged actually took place. [ 33 ] When instructing a jury on similar fact evidence - and in particular the similarity of the accused’s conduct in each case - it may be desirable to also draw the jury’s attention to any dissimilarities. However, the failure to do so is not fatal. [ 34 ] In R. v.

Shearing , 2002 SCC 58 , the accused was convicted of sexual assault against several girls. The trial judge had admitted evidence of each complainant’s similar fact evidence in the charges in relation to each of the other complainants. The accused argued on appeal that the trial judge erred in refusing to instruct the jury on dissimilarities on the evidence of some of the complainants.

Although the appeal was allowed on other grounds, the Court unanimously found that the trial judge had not erred in his jury instructions with respect to similar fact evidence: [59] The appellant contends that the trial judge erred in failing to appreciate the distinctive dissimilarities as between the G and non- G complainants, and in failing to bring some of the dissimilarities already mentioned to the attention of the jury. [60] In my view, this objection advocates an excessively mechanical approach.

The judge's task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied. This may result in distortion ... [61] The appellant objects that not only did the trial judge fail to take into account distinctive dissimilarities in ruling on admissibility, but having admitted the similar fact evidence, he failed to point out adequately the dissimilarities in his instructions to the jury. On this point, as well, I agree with Donald J.A.

The trial judge was not required to sum up the two sides of an artificially constructed ledger

as contended for by the appellant. It was open to him to do so, if he considered it helpful, but in the circumstances, it was not essential.The dissimilarities did not detract very significantly from the probative value of the evidence on the issue of modus operandi, and clearlyemerged in the narrative of each count by each complainant. The differences were skilfully advocated by defence counsel in his closingaddress. The trial judge quite adequately outlined the nature of this aspect of the appellant's defence to the jury. [Emphasis added] [35] Likewise, in R. v.

W.L., 2015 ONCA 123, the Ontario Court of Appeal commented on the trial judge’s instruction with respectto similar fact evidence in the context of sexual interference, invitation to sexual touching and sexual assault against two boys to whomthe accused stood in a position of trust: [8] The trial judge reviewed the similarities in the evidence of the complainants that were relevant for the jury's consideration indeciding whether a pattern of similar conduct had been established as a basis for them to apply the evidence across counts.

The similaract evidence here was not adduced to prove identity and thus was not required to meet the more stringent degree of similarity requiredin such cases. In those cases, dissimilarities are more telling than in cases, such as this, where the issue to which the evidence isdirected is the occurrence of an event and the credibility of a witness who has testified about it. The trial was brief. The evidence wasfresh in the minds of the jury and rehearsed in sufficient detail by the trial judge to point out the dissimilarities in the accounts.

The jurywas told of the requirement that they find similarity as a condition precedent to use the evidence across counts. The relevance ofdissimilarities seems unlikely to have been lost on them. [Emphasis added] [36] In this case, the trial judge provided both mid-trial and final instructions to the jury concerning the use of E.R.’s evidence. Heemphasized that the real issue for the jury to decide was whether the offence alleged actually took place - the jury was not to try G.K.N.for what occurred to E.R.

They were cautioned not to jump to any conclusion that because G.K.N. had done things in the past that hemust have done them in this case because he was a person of bad character. He advised the jury that they may, but need not, find that apattern of similar behaviour helped confirm M.’s testimony that the offences took place in this case. If the jury were not able to concludethat G.K.N. had done the things alleged by E.R., they could not use that evidence with respect to the charges in this case.

Moreover, thegeneral burden on the Crown to prove the offences in this case beyond a reasonable doubt was emphasized. [37] There was nothing wrong with the judge’s instructions to the jury. The differences in the circumstances between the offencesdescribed by E.R. and M. were not significant. The trial judge did not err by not highlighting them. There may be cases where thefailure to mention such differences could taint jury instructions. This is not such a case.

To reiterate the Supreme Court in Shearing: [61] …The trial judge was not required to sum up the two sides of an artificially constructed ledger as contended for by the appellant.It was open to him to do so, if he considered it helpful, but in the circumstances, it was not essential. The dissimilarities did not detractvery significantly from the probative value of the evidence on the issue of modus operandi… [38] I would dismiss this ground of appeal. Ineffective Assistance of Counsel - Miscarriage of Justice?

Overview [39] A miscarriage of justice can arise where a trial is not in fact fair, or where something happens during the trial, including anappearance of unfairness, which is so significant that it would shake the confidence of the public in the administration of justice, (R. v.Wolkins, 2005 NSCA 2; R. v. Ross, 2012 NSCA 56, ¶ 31). [40] The Court approaches allegations of ineffective counsel with considerable caution.

It is an easy matter to complain aboutcounsel’s performance from the perspective of the convicted litigant with the forensic advantage of an unwelcome result ascribed tofailure of trial tactics and strategy. Courts begin with the presumption of counsel’s competency and are deferential regarding counsel’sperformance, (R. v. Joanisse, (ON CA), 85 O.A.C. 186, ¶¶ 68-69; 73-74). [41] An appellant alleging ineffective assistance of counsel must establish the factual foundation sustaining his complaint on abalance of probabilities by demonstrating both incompetence and a miscarriage of justice, (Joanisse, ¶ 71; R. v.

Fraser, 2011 NSCA 70at ¶ 29; R. v. Gogan, 2011 NSCA 105 at ¶ 30; R. v. Ross, 2012 NSCA 56, at ¶¶ 34, 35). Errors of judgment and even errors of law bycounsel are not in themselves evidence of incompetency, (R. v. White, (ON CA), 99 O.A.C. 1, ¶¶ 113, 117). [42] The appellant must show both counsel’s incompetence and that it led to a miscarriage of justice, (R. v. Appleton (2001), (ON CA), 149 OAC 148 (Ont. C.A.) per Charron J.A., as she then was; Gogan, ¶ 29; Fraser).

In Fraser, this Courtemphasized the “heavy burden” on an appellant to show that counsel’s acts or omissions did not meet a reasonable professional standardand that incompetence resulted in a miscarriage of justice. [43] Where an alleged miscarriage of justice is founded on an assertion of the ineffectiveness of counsel, the Court will generallyfirst decide whether a miscarriage has occurred. If not, the question of counsel’s performance does not arise: R. v. G.D.B., 2000 SCC 22,¶ 29; R. v. Messervey, 2010 NSCA 55 at ¶ 21; R. v. L.B., 2014 ONCA 748, ¶ 8; R. v.

Meer, 2015 ABCA 141, ¶ 27. [44] The appellant must show that but for counsel’s error there was a “reasonable probability” that the trial outcome would havebeen different, (Joanisse, ¶¶ 81-82), or that trial fairness was otherwise compromised, (Wolkins; Ross). Alleged incompetence leading to a miscarriage of justice in this case?

Fresh Evidence - Miscarriage [45] The Crown agrees that the court should provisionally receive fresh evidence on this issue.

That follows the jurisprudencewhich relaxes the traditional Palmer test because the fresh evidence does not turn on an issue decided at trial, but on the fairness of thetrial process itself, (Wolkins, ¶¶ 58, 61; Ross, ¶ 26; Joanisse, ¶¶ 18, 19). [46] The fresh evidence tendered by G.K.N. consisted of an agreed statement of facts, an affidavit of counsel for G.K.N. on Appeal,attaching correspondence between him and the appellant’s trial counsel or on trial counsel’s behalf, two 1991 Informations respectingindecent assaults against E.R. in two places in Shelburne County, and an affidavit of G.K.N. [47] The Crown filed an affidavit of Crown counsel at G.K.N.’s trial and an affidavit from trial counsel.

Facts regarding the E.R. guilty plea [48] G.K.N. argues that he only pleaded guilty to the E.R. allegations in 1992 to make the matter “go away” and because he couldnot afford to pay a lawyer at the time. G.K.N. could not remember what facts he acknowledged at his sentencing in 1992. There is norecord left from that time. Subsequent investigation has shed no light on the issue. G.K.N.’s trial counsel is criticized for not finding outwhat those facts were. G.K.N. has led no evidence to suggest what they were or whether they were ascertainable.

There is noincompetency or material omission by counsel in failing to ascertain what may be unascertainable. Admissibility of Shelburne evidence [49] Much of the criticism of G.K.N.’s trial counsel depends upon a legal argument that evidence of alleged sexual misconduct ofG.K.N. with E.R. in Shelburne was inadmissible against him as similar fact evidence in this case. [50] Two Informations were sworn against G.K.N. relating to the E.R. allegations. Some related to events in O.P., ShelburneCounty, others in the Town of Shelburne.

G.K.N. says he pleaded guilty to the O.P. allegations, but the Crown offered no evidence withrespect to the Shelburne allegations. He was sentenced on the basis of his guilty plea to the O.P. allegations only, and he says it wasimproper for the Crown in this case to adduce any evidence relating to the Shelburne allegations because he is deemed not guilty ofthose. They should not have been relied upon as similar fact evidence in this case. [51] G.K.N. argues further that the doctrine of issue estoppel prevents the Shelburne allegations from now being revisited becausehe was acquitted of those.

He says that conduct resulting in a charge of which an accused has been acquitted cannot be used against himas similar acts, citing the cases of R. v. Grdic (1985), (SCC), 19 C.C.C. (3d) 289 and R. v. Mahalingan, 2008 SCC 63,amongst others. [52] In Mahalingan, the Supreme Court revisited Grdic and appears to have limited its application: [22] To the extent that Grdic has been read as preventing the Crown from leading evidence on any issue raised in a previous trial thatresulted in an acquittal, this is a misreading of the majority's holding.

Only issues which were decided in the accused's favour, whetheron the basis of a positive factual finding or a reasonable doubt, are the subject of issue estoppel. [23] It is thus not every factual issue in the trial resulting in an acquittal which results in an estoppel at a subsequent trial, butonly those issues which were expressly resolved or, given how the case was argued, had to be resolved for there to be an acquittal. …The accused claiming issue estoppel bears the burden of showing that a particular issue was decided in his or her favour in aprevious proceeding. […] [26] In

summary, the majority reasons in Grdic stand for the following proposition. The Crown is estopped from leading evidencewhich is inconsistent with findings made in a previous trial, whether those findings were expressly made in the accused's favour orresolved on the basis of a reasonable doubt.

Issue estoppel applies only to findings on a prior trial (as held by Blair J.A. in this case).Further, the determination of whether an issue was decided at the first trial will be a factual issue at the second trial in each case. … theCrown is permitted (absent the operation of the other rules of evidence) to lead evidence relating to issues litigated in an earlierproceeding: (1) if the issue was not decided in the accused's favour in the earlier proceeding; and (2) if the issue was decided in theearlier proceeding, but the Crown is not seeking to use the evidence to contradict the factual finding on that issue at the previous trial. […] [32] Subsequent cases, however, have read the principle of issue estoppel more broadly.

This overbroad reading is the primary sourceof the difficulties that currently attend the rule. [33] The most significant extensions of the traditional rule of issue estoppel are first, the view that it operates to bar the Crown fromleading evidence [page336] on any issue raised in a prior trial which resulted in an acquittal. … As to the first issue, as is discussedabove at paras. 18-26, issue estoppel does not mean that every piece of evidence led in a first trial which leads to an acquittal isinadmissible in a subsequent trial on another matter.

Only issues that were either necessarily resolved in favour of the accused as partof the acquittal, or on which findings were made (even if on the basis of reasonable doubt) are estopped. This would usually includethe central issue in the case if it is a one-issue case, or particular issues in a multi-issue case, if the court at the second trial can discernfrom reviewing the transcript that a finding was made on a particular issue, even if on the basis of reasonable doubt. [Emphasis added] [53] The Mahalingan description of issue estoppel was recently reaffirmed in R. v. Punko, 2012 SCC 39:

[7] In Mahalingan , this Court had to decide whether the doctrine of issue estoppel should be retained as part of Canadian criminal law. A majority of the Court favoured retaining it in the criminal law, but in a narrow form. Not all issues raised in a previous trial can be the subject of issue estoppel. Rather, the Crown is precluded from relitigating only those issues that were decided in favour of the accused at the earlier trial (paras. 22, 31 and 33).

Moreover, the resolution of an issue in favour of the accused must be “a necessary inference from the trial judge’s findings or from the fact of the acquittal” (para. 52). [emphasis in original] [ 54 ] The Crown submits that the Shelburne Information charged G.K.N. with “indecent assault”, and E.R.’s evidence at trial did not describe an assault in Shelburne. G.K.N. submits that it was “unclear” from E.R.’s trial evidence whether the assaults happened only in O.P. or included Shelburne. Even so, the described activity was the same in both places.

Since the O.P. evidence was certainly admissible, no prejudice could arise. The judge did not err in admitting this evidence. G.K.N.’s trial counsel’s failure to argue that it was estopped does not constitute incompetence. Counsel was wrong to sign an agreed statement of facts without G.K.N.’s authorization [ 55 ] Trial counsel is faulted for signing an agreed statement of facts which attached E.R.’s 1991 statement to police, together with her preliminary inquiry evidence in that proceeding, and the O.P. Information.

G.K.N. compares this to an admission of guilt on the merits which he says is a matter of counsel’s incompetence going to trial fairness. He adds that he did not authorize the agreed statement. His trial counsel contradicts him. Who is right does not matter. [ 56 ] Trial counsel made no such admission. He agreed for the purposes of the voir dire only that E.R. would testify to the facts alleged in the agreed statement. For example, the Admissions on the voir dire stated that, “The victim, [E.R.] gave a statement to the RCMP … wherein she stated …” The statement was attached.

Again, the Admissions said, “At the preliminary inquiry … [E.R.] testified under oath as follows …” A transcript of the preliminary inquiry was attached. In both these examples, all that is admitted is what E.R. had previously said. They are not admissions of the truth of what E.R. said. [ 57 ] While counsel must take instructions regarding election and plea and whether or not to testify, the conduct of the case generally does not require client instructions.

Indeed, it may well be the obligation of counsel to resist client instructions where these conflict with counsel’s judgment about the client’s best interests, ( Joanisse , ¶¶ 109-111, 118-120 ; R. v. B.(G.D.) , 2000 SCC 22 , ¶ 34 ). [ 58 ] Counsel’s decision to admit facts for the purposes of voir dire is within the realm of trial tactics which is for him to decide. He did not require the instructions of his client for doing so.

In Joanisse , for example, the Ontario Court of Appeal did not fault counsel for conceding the admissibility of his client’s confessions to police. [ 59 ] G.K.N. has failed to demonstrate incompetence by his counsel, or prejudice. Had he not admitted the E.R. evidence for voir dire purposes, it would have been proved. G.K.N. does not suggest otherwise. The admission was reasonable in the circumstances. Similar fact concession [ 60 ] G.K.N.’s trial counsel is next criticized for “conceding” the similar fact application “without instructions”. That is not what trial counsel did.

His agreement at the voir dire did not concede the admissibility of E.R.’s evidence, simply the similarities between it and that of M. Such an admission was understandable given the obvious similarities between the two complainants. It would seem that the trial judge agreed as appears from the following exchange: MR. JUDGE : … Now, having said that, with respect to the E.R. matter, that is certainly -- I would be less than honest to sit here and say there are not striking similarities if you take the allegations that are … THE COURT : I don’t think you have to go into the E.R. matter. MR. JUDGE : Yeah.

THE COURT : It’s pretty well on all fours with R. v. Handy . MR. JUDGE : Yeah. And that’s… THE COURT : I’m not saying I’ve made up my mind, but … [ 61 ] Notwithstanding his concession of the similarities between the complaints of E.R. and M., G.K.N.’s trial counsel continued to argue that the evidence should not be admitted because its probative value was outweighed by its prejudicial effect. He had previously filed a brief to that effect. [ 62 ] G.K.N. cites examples of liability concessions by counsel resulting in miscarriage findings: R. v. D.M.G., 2011 ONCA 343 ; R. v. Loi and Liang , 2013 ONSC 1202 .

No such concession was made by G.K.N.’s trial counsel, and these cases have no application here. [ 63 ] Again, regardless of G.K.N.’s arguments respecting his counsel’s competency, he has not shown prejudice - that the judge would have ruled this evidence inadmissible, so that there was a “reasonable probability” that the trial result would have been different. Argument to the jury re E.R.’s testimony [ 64 ] G.K.N. then complains that trial counsel failed to refer to E.R.’s testimony in his closing submissions and did not comment on the use they could make of E.R.’s similar fact evidence.

G.K.N.’s trial counsel explained that part of his strategy was to attack the credibility of M., not to highlight E.R.’s testimony, who he thought was a credible witness. Ignoring E.R.’s evidence would be consistent

with that strategy. [65] Counsel decided not to challenge an apparently credible witness. He thought more fertile ground was available in M.’sinconsistencies and lies. That was a judgment call for trial counsel to make, and in light of the record, was a reasonable one. It allowedcounsel to focus his attack on the weaknesses in the Crown’s key witness.

That the strategy failed is not evidence of incompetency, letalone a miscarriage of justice. [66] Moreover, it is fundamentally the obligation of the trial judge to comment on what use the jury could make of similar factevidence and, of course, it is more likely that the jury would attend to the trial judge’s instruction than that of a lawyer whose client’sinterests he would be so obviously serving. [67] In this case, the jury received instructions on how to treat E.R.’s testimony on at least two occasions from the trial judge. Thefirst immediately followed E.R.’s testimony. The second was during the jury charge.

There was no error in the judge’s instructions, andso no need to correct or even reiterate them. [68] G.K.N. has neither demonstrated trial counsel incompetence nor resulting prejudice. Failure to seek corrective instruction regarding similar fact evidence [69] G.K.N. assumes that the trial judge erred in his instructions to the jury with respect to grounds one and two of his appeal. Forreasons already described, the trial judge did not err, so no corrective instruction was required. Failure to cross E.R. at the voir dire and trial [70] Mr. Judge did not cross-examine E.R. during the voir dire.

His cross-examination of E.R. at trial was confined to three briefquestions – implying a motive for E.R. to have lied without laying the foundation for doing so. Certainly this was ineffective. [71] Mr. Judge’s reason for his brevity was his impression that E.R. was a credible witness. G.K.N. appears to concede this onappeal, particularly in light of the jury’s verdict. But he suggests that cross-examination could have possibly established opportunity forcollusion between E.R. and M. This is purely speculative. The evidence of M. was she did not find out about E.R. until she complainedto the police.

G.K.N. has not shown that evidence could have been developed to establish collusion. [72] Cases which find a miscarriage of justice arising from a failure to cross-examine, often involve the failure to pursue obviousroutes of impeaching the witness, usually from prior inconsistent statements: R. v. M.B., 2009 ONCA 524; R. v. T.P., (ON CA), 160 OAC 118; and R. v. J.B., 2011 ONCA 404. No such failure is alleged here. G.K.N. does not suggest any topics of cross-examination that would have borne any fruit for him.

Indeed, the cross-examination of a strong witness may only serve to cement thatwitness’s testimony with a jury. A decision not to cross-examine in depth was a judgment call for trial counsel. Failure to question his client about E.R.’s evidence [73] This issue was not explicitly argued, but it is implicit in much of G.K.N.’s complaint about his trial counsel’s performance. [74] It was always G.K.N.’s instruction and his lawyer’s understanding that G.K.N. would ​​​​​​​​deny the evidence regarding the eventswith E.R. He only pleaded guilty for family and financial reasons.

Trial counsel could be faulted for not putting E.R.’s evidence toG.K.N. and obtaining a clear denial of it on the record before the jury. Nor did the jury have the opportunity to hear why he pleadedguilty to the O.P. charges in 1992. But implicit in that explanation is an attack on E.R.’s credibility. [75] Whether it was wise to stay away from E.R.’s testimony was a question for trial counsel. Certainly, that was his strategy. Hefelt - and the record supports him - that M.’s testimony would be a fruitful source of cross-examination.

He concluded that cross-examining E.R. herself was of little value, because her perceived credibility may be enhanced. There was some risk to G.K.N. inattacking a witness who had been favourably received by the jury. After all, it was not her evidence on which he could be convicted. Hewas not being tried for events that occurred thirty years ago, but on M.’s allegations which were problematic as trial counsel tried toshow in his cross-examination of her which exposed errors and inconsistencies in that evidence. [76] G.K.N. denied M.’s accusations.

To succeed on this complaint he must show that there was “a reasonable probability” that hereceived an unfair trial because the questions about E.R. were not put to him. At the end of the day, the jury had to decide whether itbelieved M., disbelieved G.K.N., or retained any reasonable doubt based on of all the evidence. Clearly they did not. G.K.N.’s denial ofE.R.’s testimony was unlikely to change the jury’s assessment of his credibility regarding M.’s allegations.

Miscarriage of Justice: Trial Fairness [77] Here, G.K.N. repeats his allegations against trial counsel and concludes that trial fairness was thereby compromised providingadditional grounds for setting aside the jury’s verdict. For reasons already described, any shortcomings in trial counsel’s performancedid not prejudice G.K.N. [78] An unfair process resulting from an ineffectiveness of counsel argument means that an accused has been actually orconstructively deprived of counsel’s assistance, (Joanisse ¶ 78; Ross, ¶ 59). The circumstances here do not approach that fundamentalfailure of counsel’s assistance.

G.K.N. was not prevented from making “full answer and defence”. [79] I would dismiss the appeal. Bryson, J.A.

Concurred in: Beveridge, J.A. Van den Eynden, J.A.