2013 SKCA 52 Date:, 2013 SKCA 52

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 52 Date: 2013-05-10 Between: Docket: CACR 2146 Richard Robert Baxter Appellant - and - Her Majesty the Queen Respondent PUBLICATION BAN: An order has been made pursuant to s. 486.4 of the Criminal Code prohibiting publication of any information that could disclose the identity of the complainant. Coram: Cameron, Ottenbreit, and Herauf JJ.A. Counsel: Bobby Hrycan for the appellant Anthony Gerein for the respondent

Appeal: From: QBC 8 of 2010, J.C. of Regina Heard: April 5, 2013 Disposition: Appeal Dismissed Written Reasons: May 10, 2013 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Mr Justice Ottenbreit The Honourable Mr Justice Herauf CAMERON J.A. I. Introduction [ 1 ] The appellant was found guilty by a judge of the Court of Queen’s Bench sitting without a jury of (

i) assaulting the woman with whom he was then living, as well as her 12 year old daughter, contrary to s. 266 of the Criminal Code ; and (ii) sexually assaulting the woman’s daughter, contrary to s. 271 of the Criminal Code. In the result, the trial judge sentenced him to a term of imprisonment of just over six years (with credit for time served on remand) and made the usual follow-up orders. [ 2 ] The appellant then brought this appeal on the ground the trial judge erred in two respects: (

i) in allowing the introduction of evidence that was either irrelevant or more prejudicial than probative inasmuch as it tended to show that he was of angry and violent disposition generally; (ii) in assessing his credibility, as well as that of the mother and child. In consequence, he asked for an order quashing the convictions and ordering a new trial. [ 3 ] We do not agree with either ground of appeal.

We do not agree with the first for the reasons generally that in some respects the impugned evidence went in without objection by the defence and in others it was adduced at the instance of the defence, all in apparent pursuit of the trial strategy and tactics adopted by defence counsel. As for the second ground, we are not satisfied the trial judge erred in the assessment of the credibility of the accused, or that of the mother and child. Accordingly, we have decided to dismiss the appeal. II.

The Background [ 4 ] The trial judge found the common assaults upon the mother and child to have been committed on the evening of September 11, 2009 when the accused struck each of them during a confrontation in the home precipitated by the accused’s angry and irrational denouncement of the child—he was drunk at the time—and the mother’s intervention.

The assaults were relatively minor inasmuch as he did not strike either mother or child particularly forcefully. [ 5 ] As for the sexual assault upon the child, the trial judge found that the accused had engaged the child in multiple sexual acts covering a span of seven months beginning in early February of 2009 and ending in early September of 2009.

These times are significant, not because they are in dispute but because they serve, first, to frame the period during which the events underlying the sexual assault conviction were found to have occurred and, second, to assist in explaining the sequence of events for the purposes of addressing the grounds of appeal. [ 6 ] On or about February 1, 2009, the accused and the mother, accompanied by the child, moved to Saskatchewan from Ontario following the breakup of the mother’s marriage in June of 2008.

They moved to Saskatchewan via Nova Scotia and Alberta in an attempt to avoid ongoing legal difficulties they were experiencing in relation, first, to the custody of the child and, second, to a non-contact order forbidding the accused from associating with the mother as a result of his having been convicted of assaulting her in August 2008 while they were still in Ontario.

[ 7 ] Immediately upon their arrival in Saskatchewan, the mother found employment, working through the night, while the accused looked after the child. Shortly afterwards, the accused also found employment, working through the day. They were then staying in a motel, where they stayed for the better part of a week, before moving into a women’s shelter where they stayed for another two weeks or so. They then found a house in which to live.

Three or four months later the mother found other employment, permitting her to work a day-shift instead of a night-shift. [ 8 ] They kept the child out of school for the first several months after their arrival in Saskatchewan fearing their whereabouts might otherwise be discovered. For the most part the accused attended to the child’s education during this period and emerged as the disciplinarian and the dominant figure in the household. The mother was under stress and in a rather fragile emotional state. She was coming off a broken-marriage of some 20 years and had undergone bouts of depression in the past.

The accused, too, was under stress and was drinking heavily, consuming as many as 20 to 30 bottles of beer a day by the time of the confrontation at the house on September 11, 2009. [ 9 ] The child fled the house on this occasion, followed shortly afterwards by the mother, and each then spoke to the police about the matter. This led to the arrest of the accused on the common assault charges.

Upon his arrest the mother and child returned to the house, and following upon his release from custody on an undertaking not to contact them, the accused moved into the basement suite of a nearby house owned by a co-worker. [ 10 ] Despite the no-contact order, the accused and the mother continued to have contact for one reason or another, and of one kind or another. She visited him periodically, as did the child.

These periodic visits continued for about four months, or until early January of 2010, when the child came forward with her allegations that the accused had engaged her in sexual acts over the seven month period between their arrival in Saskatchewan on or about February 1, 2009 and the blow up at the house on September 11, 2009. [ 11 ] The child came forward with her story as a result of discussions she had had with some friends in her age group. She and three of her best friends had formed a little “counseling group” that met from time to time to discuss the “issues” they were having in their lives.

This led her to confide in the others regarding the issues she said she was having with the accused. One of the girls in the group thought they had best do something about the matter and, accordingly, it was brought to the attention of the school principal, who immediately contacted social services. [ 12 ] The child was then interviewed by a social worker trained in dealing with children in these circumstances. That was on January 8, 2010.

During the interview, which was videotaped in keeping with standard practice and was conducted with scrupulous regard for the need to avoid leading the child by suggestion, the child described what she said had occurred between the accused and her from the time they had arrived in Saskatchewan. [ 13 ] The gist of her story was this. She had begun menstruating almost immediately upon their arrival in Saskatchewan (while they were staying in the motel), and the accused undertook to explain what this entailed in terms of her coming of age sexually.

But rather than merely explaining matters, he insisted upon a demonstration. So he had her remove her panties, showed her his private parts (which she referred to as his “downstairs”), and then placed her on the bed and put “his downstairs” into “her downstairs”, assuring her this was normal but instructing her not to tell anyone. She was eleven at that time. [ 14 ] She went on to say that acts of this nature occurred on many occasions in the ensuing months.

She described the where, when, and how of all of this, saying that a few weeks after the occurrence in the motel room he again put his “downstairs” into her “downstairs” and then continued doing this on a regular basis in her bedroom at the house—usually after the accused got home from work but before her mother did. The acts were mostly vaginal, as she described them, but were accompanied at times by oral or manual or anal contact.

This conduct developed into something of a pattern, she explained, saying the accused would come home from work, have a beer, say “go to your bedroom”, and then engage her in sexual activity of one kind or another.

She estimated that this happened about once a week, adding that it probably happened about 13 times in all and had happened on the odd occasion while her mother was at home, either asleep or in the shower. [ 15 ] She also said she had thought about disclosing this to her mother, who once asked her if anything was going on between the accused and her, but decided not to do so for the principal reason she feared her mother was too emotionally fragile to handle the matter. So she kept it to herself, she stated, until bringing it up before the little “counseling group”. [ 16 ] This is only a brief

summary of what the child had to say during the interview but serves to explain what followed. On completion

of the interview, the matter was turned over to the police and in the result the accused was arrested, charged with sexually assaulting the child, and brought to trial on this and the other charges. III. The Trial [ 17 ] The case came before Madam Justice Dawson. Each of the mother, the child, and the accused testified in relation to the common assault charges and the sexual assault charge. The testimony of each of the mother and child was very much at odds with that of the accused.

Hence, the credibility of each of them became the decisive issue at trial. [ 18 ] From the perspective of the defence, the trial unfolded along the lines of the strategy adopted by defence counsel in furthering the accused’s position. His position was essentially this. He had not struck either mother or child on the evening of September 11, 2009, and had never had any sexual contact with the child.

The allegations of the mother and child to the contrary were fabrications borne of vindictiveness resulting from his having informed the mother, only days before the child made her complaint, that he had found someone else and was breaking off the relationship. Nor, given the egregious nature of their allegations, were mother and child to be believed in light of the way in which he had given his all to them in rescuing them from an abusive domestic situation in Ontario. Thus, the strategy adopted by defence counsel lay in large

part in undermining the credibility of mother and child by demonstrating just how vindictive they were, having regard for the egregious nature of their allegations. [1] [ 19 ] That said, the mother was the first of the three to testify. She testified to the alleged events underlying the common assault charges, together with some matters having to do with the sexual assault charge.

As for the former, she alleged the incident in the home on September 11, 2009 occurred when the accused, in a high state of anger fueled by alcohol, struck both her and the child. [ 20 ] As for the sexual assault charge, she recounted what she had allegedly known of the relationship between the accused and the child in this regard, together with what she had allegedly observed of the child’s behaviour over the period in question.

In retrospect, she said her first inkling that something might have been amiss came to her when, one evening in the motel room, the accused insisted upon having sexual intercourse with her in the presence of the child who lay awake beside them. The mother did not think this was “appropriate”, she said, but he persisted and she relented. She went on to say that her suspicions were particularly aroused when, on a subsequent occasion, she awoke, went to the bathroom, and found the accused tugging at the child’s top.

She later asked the child whether anything untoward existed in the relationship, she said, only to have been told there was not. [ 21 ] But it seemed to her the accused had shown an uncommon interest in the child’s sexuality, she said, saying he had frequently talked about the prospect of her masturbating, and had occasionally commented upon the way in which she moved and touched herself.

In addition, she said the child had grown increasingly distant over the period in question and had often seemed angry with her for no apparent reason. [ 22 ] There is nothing particularly noteworthy about the mother’s testimony, in terms of the grounds of appeal, except in two respects. [ 23 ] The first is this.

While testifying under examination-in-chief about the events underlying the common assault charges (when the accused was in a fit of high anger over a relatively innocuous incident involving the child), the mother was asked what triggered this. “Alcohol”, she said, adding that the accused can be a “very sweet guy” when sober but when drunk he “gets angry and violent and psychotic” and is “the most violent person I have ever met in my life, and I’ve been dealing with abusive people for many years”. This might have been objected to by defence counsel but, for whatever reason, it was not.

And, during a far reaching cross-examination, defence counsel encouraged her to go beyond this and to allege that there were other incidents of violence within the home, including one in which the accused had grown angry and given her a black eye, another in which he had roughed her up when she intervened to stop him from choking the child, and so on. [ 24 ] The second of the exceptions pertains to the mother’s testimony regarding her suspicions about the nature of the relationship between the accused and the child.

She had addressed this subject in examination-in-chief, recounting, among other things, the incident in the motel room in which the accused allegedly insisted upon having sexual intercourse with her while the child lay awake beside them. Her testimony regarding this incident was not objected to and, once again, defence counsel, in his far reaching cross-examination, had her expand upon the incident to the point she eventually alleged that it was preceded by the accused shoving her against the wall, with his forearm pressed against her neck, and ripping her clothes off.

She said she then instructed the child to get into bed, and got into bed with her, followed by the accused, who then calmed down but insisted upon having sexual intercourse with her.

[ 25 ] The significance of these exceptions lies in the fact they form part of the evidence the appellant contended should have been excluded by the trial judge, a matter we shall come to shortly, after recounting the testimony of each of the child and the accused. [ 26 ] The child was called upon to testify on a voir dire held for the purposes of determining whether the video recording of “the acts complained of” by the child was admissible into evidence under

section 715.1 of the Criminal Code . During her testimony-in-chief on the voir dire, the child adopted the contents of the video recording and was then asked by the prosecutor to clarify one or two matters, which she did. At that, she was cross-examined at length about the acts of which she had complained during the interview.

Again, there is nothing particularly noteworthy in her testimony, having regard for the grounds of appeal, except for one or two matters arising out of what she had said during the interview. [ 27 ] During the interview she referred on occasion to events which, while forming part of the narrative covering the history of her experience with the accused, were unconnected in the strict sense to the acts upon which the sexual assault charge was founded. The most significant of these featured what the child said was “the rape” of her mother by the accused in her presence.

This was a reference to the incident alleged to have occurred in the motel room when, according to mother and child, the accused shoved the mother against the wall, ripped her clothes off, and ended up insisting on having sexual intercourse with her while the child lay beside them. [ 28 ] The reference by the child to this alleged incident, and her own description of it, might have been expunged from the video recording on the request of defence counsel made at the conclusion of the child’s examination-in-chief, but defence counsel made no such request. [2] Indeed, he opted to cross–examine the child at length about the violence allegedly associated with this incident, and about other allegedly violent incidents. [ 29 ] On the conclusion of the voir dire, defence counsel chose not to object to the whole of the contents of the video recording being received into evidence.

Nor did he object to the whole of the child’s testimony being received into evidence for the purpose of the trial proper. The trial judge asked him if he wished to make any submissions in this respect and he declined. Accordingly, the whole was allowed into evidence. [ 30 ] As for the testimony of the accused, he began by acknowledging his criminal record, including his conviction for assaulting the mother in August of 2008 while they were still in Ontario.

He then denied the assault, saying she had fallen and injured herself and that he had agreed at her behest to plead guilty to the charge in order to put the matter behind them. That out of the way, he went on to recount how he had in effect rescued the mother and child from a nasty situation in Ontario, alleging that the child’s biological father had physically and sexually abused her, an allegation the mother had flatly denied when testifying.

He also spoke at length about his relationship with both mother and child—about how he had allegedly given his all to them, and how he had not struck mother and child during the flare up in the home and had never engaged the child in any kind of sexual activity. Indeed, he had constantly to rebuff and reprove the child, he said, by reason of her sexually suggestive behaviour toward him—behaviour born of the sexual abuse she had suffered at the hands of her biological father. He also denied the incidents of violence to which the mother and child had testified, denying that he had an anger management problem.

Alcohol was his problem, he said, not anger management. [ 31 ] In addition, he spoke of how, in his estimation, mother and child had fabricated their allegations against him for essentially two reasons. The first lay in what he said he had told the mother, immediately before the child came forward with her allegations of sexual abuse, namely that he had found someone else and was terminating their relationship.

The second lay in a suggestion by him that the mother stood to gain more assistance from victim services, given the nature of the allegations made against him, than would otherwise have been the case. [ 32 ] In sum, this is the gist of the testimony of each of the mother, the child, and the accused. To be sure, this is a highly abbreviated account, but it serves to explain what lies beneath the convictions, and serves, as well, to lay the foundation for addressing the grounds of appeal.

In all material respects, Madam Justice Dawson did not believe the accused but did believe each of the mother and child and, on the whole of the evidence, was satisfied beyond a reasonable doubt that the accused was guilty as charged. Hence she convicted him on all counts. IV. The Appeal 1. The First Ground of Appeal . [ 33 ] As mentioned above, the first ground is that the trial judge erred in allowing the introduction of evidence that was either irrelevant or more prejudicial than probative inasmuch as it tended to show that he was of

angry and violent disposition generally.

This ground taps into the power of this Court under section 686(1) (a)(ii) of the Criminal Code to allow an appeal against conviction on the ground of a wrong decision on a question of law unless the Court is satisfied, as contemplated by section 686(1) (b)(iii), that no substantial wrong or miscarriage of justice occurred by reason of such error, in which event the Court may dismiss the appeal despite the error. [ 34 ] The impugned evidence consists of the following: • the testimony of the mother to the effect the accused, when drunk, gets angry, violent, and psychotic, and is the most violent person she had ever encountered. • the testimony of both mother and child regarding incidents of violence in addition to the incident in the home on September 11, 2009; and • the testimony of both mother and child regarding the incident in the motel room when the accused allegedly roughed up the mother and afterwards insisted on having sexual intercourse with her while the child lay awake beside them.

The first and second refer to evidence that, for the most part, was introduced in the context of the common assault charges, whereas the third refers to evidence introduced in the context of the sexual assault charge, though there is some overlap. [ 35 ] In any event, and as remarked upon above, the reception of the impugned evidence was not objected to by defence counsel. Not only was there no objection, but defence counsel both amplified and enlarged upon this evidence during cross-examination. Take, for example, the mother’s testimony regarding the incident in the motel room.

During her examination-in-chief she confined her testimony to the accused having insisted upon having sexual intercourse while the child lay awake beside them, saying she regarded this as inappropriate.

Then in cross-examination she was eventually drawn into saying this was preceded by the accused having shoved her up against the wall and ripped her clothes off. [ 36 ] This lack of objection and this line of cross-examination seems to lie in the strategy defence counsel adopted in an effort to impeach the credibility of each of the mother and child by demonstrating that their allegations were not to be believed, given their egregious nature when considered against the background of all the accused had done for them.

As defence counsel said in closing argument, the mother had obviously set about to portray the accused as a “monster” and was not to be believed. [ 37 ] Notwithstanding the circumstances in which the impugned evidence went in, the appellant contended that Justice Dawson was bound to have called a voir dire to determine its admissibility and bound, in any event, to have excluded it. With respect, we do not agree. [ 38 ] To begin with, we observe that the competence of defence counsel was not put in issue on the appeal.

We observe, too, that Justice Dawson, during the early stages of the trial, questioned defence counsel on occasion about where he was going with some of his questioning of the witnesses. On the last of these occasions, she evinced a reluctance to interfere with the strategy of the defence. Had the case been tried before a jury, she may have questioned defence counsel more closely, (in the absence of the jury), about his strategy and tactics, for the jury would have to have been instructed on the use that could be made of some of this evidence.

As it is, she did not interfere, though her initial queries suggest she was alive to the principle that trial judges must be loath to interfere with the strategy and tactics adopted by the defence. [ 39 ] This principle was elaborated upon by the Supreme Court of Canada in R. v T. (S.G.) , 2010 SCC 20 , [2010] 1 S.C.R. 688 . What was at issue in that case was the content of an incriminating e-mail that was admitted into evidence at trial without a voir dire and without objection by the defence.

Speaking for the majority of the Court, Justice Charron first explained the underlying situation, noting among other things that defence counsel had agreed to the admission of the e-mail: 34 I am not unmindful of the fact that S.G.T. raised the question of competency of counsel before the Court of Appeal and that the court did not dispose of this ground of appeal.

It is noteworthy for our purposes, however, that in specifying the grounds in support of his allegation of inadequate representation in his Notice of Appeal, S.G.T. made a number of specific allegations about the alleged inadequacies of his counsel but made no mention of counsel's consent to the admission of the e-mail.

The only ground of appeal relating to the e-mail was an allegation that the "trial judge erred in placing excessive weight" on this item of evidence . [ 40 ] With that, Justice Charron turned to the principle under consideration, saying this of the matter: 35 More importantly, in deciding whether there was clear evidence that ought to have triggered the need for the trial judge to raise the issue on his own motion, an appellate court must consider the question from the perspective of the trial judge at the time the decision was made. 36 Here, the most significant circumstance is that the defence consented to the admission of the evidence.

In an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel: see generally R. v. Lomage

(1991), (ON CA), 2 O.R. (3d) 621 (C.A.), at pp. 629-30. There is a "strong presumption" that defence counsel arecompetent in advancing the interests of their clients: see R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27; Hodgson, [R. v.Hodgson, (SCC), [1998] 2 S.C.R. 449] at para. 99. Moreover, counsel will generally be in a better position to assess thewisdom, in light of their overall trial strategy, of a particular tactical decision than is the trial judge.

By contrast, trial judges are expectedto be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel, thegreater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocatefor one party.

For these reasons, this Court has previously held that the burden to raise evidentiary issues properly rests on the shouldersof counsel: Hodgson, at para. 98. 37 The corollary of the preceding is that trial judges should seldom take it upon themselves, let alone be required, to second-guessthe tactical decisions of counsel. Of course, trial judges are still required to "make sure that [the trial] remains fair and is conducted inaccordance with the relevant laws and the principles of fundamental justice": Lavallee, Rackel & Heintz v. Canada (Attorney General),2002 SCC 61, [2002] 3 S.C.R. 209, at para. 68.

However, reviewing the record from the perspective of the trial judge and taking intoaccount the factors from I. (L.R.) [R. v.

I.(LR.) and T.(E.), (SCC), [1993] 4 S.C.R. 504] which were discussed above, Ifind no basis to conclude that the trial judge ought to have interfered with the decision of counsel to consent to the admission of theevidence… [41] In the light of this, we are of the opinion the trial judge did not err in failing on her own motion either to conduct a voir dire for thepurpose of determining the admissibility of the impugned evidence or to exclude the evidence for the reasons advanced by the appellant.On the whole, the impugned evidence either went in without objection by defence counsel or was adduced by defence counsel, all withan eye it seems to furthering the strategy adopted by the defence in an effort to raise a reasonable doubt about the credibility of each ofthe mother and child.

This strategy was undertaken in the expectation it might succeed, but it failed, and having failed, the appellant nowseeks to reverse the result on the basis the impugned evidence should not have gone in. With respect, the appellant cannot have it bothways. [42] We might add that, even if the impugned evidence should not have gone in whole or part, we are of the opinion, given the trialjudge’s unimpeachable findings of credibility, that the outcome of the trial would not have been any different in relation to either thesexual assault charge or the common assault charges.

In other words, were it necessary to do so, we would invoke the provisions ofsection 686(1)(b)(iii) of the Criminal Code in relation to the first ground of appeal, for we are of the view that no substantial wrong ormiscarriage of justice occurred as a result of the reception of this evidence.

We say this for the principal reason there is little to suggestthis evidence, considered in the context of the whole of the evidence, had a material or significant bearing on the trial judge’sconclusions, bearing in mind that trial judges are presumed to be familiar with such basic legal notions as those associated withpropensity reasoning and the permissible and impermissible uses of evidence. [43] For these reasons, then, we have concluded that the first ground of appeal must fail. 2.

The Second Ground of Appeal. [44] This ground, alleging that the trial judge erred in her assessment of the credibility of the accused, as well as that of the mother andchild, ties into the power of the Court, under section 686(1)(a)(

i) of the Criminal Code, to set aside a verdict on the basis it isunreasonable or unsupported by the evidence. [45] This power falls, in general, to be exercised in accordance with the standard of review articulated by the Supreme Court of Canadain R. v. Yebes, (SCC), [1987] 2 S.C.R. 168.

This means we must not merely substitute our view for that of the trial judgebut must re-examine the evidence, and to some extent reweigh and consider its effect, with a view to deciding whether the trial judgecould reasonably have reached the conclusions upon which the verdict is based. [46] More particularly, as this power applies to findings of credibility it falls to be exercised on the premise such findings are to betreated on appeal with great deference, bearing in mind the very real advantage enjoyed by trial judges in seeing and hearing thewitnesses and capturing the atmosphere at trial—an advantage denied appellate judges: R. v.

W.(R.), (SCC), [1992] 2S.C.R.122; R v. François, (SCC), [1994] 2 S.C.R. 827. This is not to say findings of credibility, which amount tofindings of fact, are virtually beyond effective review on appeal, but an appellate court is not to interfere with them unless they cannot besupported on any reasonable view of the evidence: R. v. Burke, (SCC), [1996] 1 S.C.R 474 and R. v. R.P., 2012 SCC22, [2012] 1 S.C.R.746. (See, too, R. v. W.H., 2013 SCC 22). [47] That said, assessments of credibility, in the sense of truthfulness, turn on a myriad of considerations.

Some extend beyondassessing testimony for such indications of truthfulness or otherwise as may lie in consistency, plausibility, lack of motive to concoct,and so on, to include gauging demeanour and the trial judge’s impressions born of experience, logic, and an intuitive sense of the matter:

R. v. Marquard, (SCC), [1993] 4 S.C.R. 223 at p. 248. Hence it is necessary, in reviewing findings of credibility onappeal, to bear in mind the challenges associated with fully explaining findings of this nature. [48] As Chief Justice McLachlin noted in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at paras. 48-49 (referring with approval to thereasons of Justices Bastarache and Abella in R. v.

Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621), “[a]ssessing credibility is not a science”,and ..it may be difficult for a trial judge to “to articulate with precision the complex intermingling of impressions that emerge after watchingand listening to witnesses and attempting to reconcile the various versions of events”….

While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult toverbalize….In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and completeverbalization.. [49] It is against this backdrop of principle that we reviewed the trial judge’s findings of credibility.

And we reviewed them in the lightof both the approach she took and the trial record, including her reasons for judgment and the transcript of the evidence.

Based on thatreview, and for the reasons that follow, we found no tenable basis for interfering with her findings of credibility, either in relation to theaccused or in relation to each of the mother and child. [50] Turning, first, to the approach adopted by the trial judge, we note that she approached the issue from the perspective of thepresumption of innocence and the resulting onus on the Crown to prove its case beyond a reasonable doubt on the whole of the evidence.In other words she approached the matter along the lines suggested in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 and R. v.W.D.S., (SCC), [1994] 3 S.C.R. 521, Thus, she not only observed that she was bound to acquit the accused if shebelieved his testimony but was also bound to do so if, even though she did not believe his testimony, she was left in a reasonable doubt byit. She also observed that, if she was not left in a reasonable doubt by his testimony, she had still to determine, on the basis of thetestimony she did accept, whether the accused was guilty beyond a reasonable doubt. [51] With this in mind, she turned to the testimony of the accused regarding the common assault charges.

She drew attention to hishaving said that, while he was angry with the child on the occasion in question, the incident giving rise to the charges was an isolatedone and devoid of violence on his part. She said she did not believe him in this regard, noting what she described as his palpableaggressiveness, anger, and belligerence when testifying. He impressed her, while on the stand, as having “a very very bad temper” and asbeing “very volatile”.

She also said his suggestion that the mother and child had fabricated the assaults and targeted him, as they hadtargeted the child’s biological father, made no sense to her and was unbelievable. Nor could she make sense of his suggestion that themother stood to gain additional assistance from victim services by lying about this situation. [52] As for the testimony of the accused regarding the sexual assault charge, the trial judge said she did not believe him.

She observedthat his testimony respecting his relationship with the child, and his supposedly limited opportunity to have done what the child accusedhim of having done, was neither internally nor externally consistent. She also observed that his testimony to the effect that he had pledguilty to assaulting the mother in Ontario, though he had not in fact done so and had pled guilty as a favour to the mother, wasunbelievable in the circumstances and served to taint other parts of his testimony. So, too, did his suggestion that the mother and childhad fabricated their stories for the reasons he identified.

This was “just not believable” she said, and concluded by saying in effect that,on the whole, his testimony regarding the sexual assault charge was not credible in any material respect; nor did it leave her with areasonable doubt. [53] This is not all she said in assessing the credibility of the accused, but this will suffice to demonstrate why, on our review of thewhole of the trial record on the basis of the framework of principle mentioned above, we were unable to find any tenable basis forinterfering with the trial judge’s finding that the accused was not a credible witness. [54] Nor were we able to find any tenable basis for interfering with the trial judge’s findings of credibility in relation to each of themother and child.

She observed that the testimony of each of them regarding the common assault charges was internally and externallyconsistent in a number of respects, was not exaggerated or embellished as the case may be, and was believable in every material respect.The mother was a credible witness, she observed, adding that the mother’s account of the incident giving rise to the common assaultcharges was “believable, credible and consistent.” So, too, was that of the child. [55] As for the sexual assault charge, the trial judge noted that the mother, while not aware of what might have been going on betweenthe accused and the child, was concerned about some of the accused’s conduct toward the child, noting that the mother’s testimony inthis respect was credible.

The mother could readily have exaggerated her concerns, according to the trial judge, but did not do so. Nor, in

the view of the trial judge, did the mother exaggerate in other respects, as demonstrated on occasion by the way in which she did notvolunteer details of incidents of violence until pressed to do so, particularly during cross-examination.

All in all, the trial judge said shefound the mother to be a credible and consistent witness. [56] Turning to the testimony of the child, the trial judge paid particular attention to the credibility and reliability of the child’sallegations having regard for the fact the child had not complained earlier, or to her mother; that on occasion she was somewhatuncertain or imprecise about time and place and frequency; that she had visited the accused on occasion between the flare up at the homein early September of 2009 and the report of her allegations in early January 2010; and so on.

The point of this observation is twofold.First, the trial judge subjected the allegations of the child to critical scrutiny, contrary to the submission of the appellant that she failed todo so. Second, the trial judge was not moved to doubt the credibility or reliability of the child’s testimony on any of these grounds; andwas not moved to do so for good reasons in our respectful opinion. It is unnecessary to recount her reasons.

It is enough to note that sheexplained her thinking in detail, based both on principle and fact, and in our respectful judgment there is nothing of material significancein her explanation to warrant interference on appeal. [57] We should add, perhaps, that the trial judge was not moved to doubt the child’s credibility on any other ground. Indeed, sheidentified a number of positive indications of the child’s truthfulness.

Speaking of the child’s testimony in relation to the commonassault, or the sexual assault as the case may be, the trial judge observed that the child was not given to exaggeration or self-servingtestimony, noting that the child tended to minimize events on occasion, as she did in relation to the common assault upon her, and wasforthright about the fact she had always resisted the accused’s sexual overtures. [58] Again, this is but a brief account of the trial judge’s assessment, but it serves to illustrate why we found no tenable basis forinterfering with her finding regarding the credibility of the child. [59] On the whole, then, and for these reasons, we are of the opinion the trial judge’s findings of credibility are not open to interferencewhen viewed in light of the measure of deference they attract; the trial record, including the judge’s reasons for judgment and the state ofthe evidence; and the fact we do not have the power to intervene unless findings of fact of this nature cannot be supported on anyreasonable view of the evidence.

Hence, we have concluded that the second ground of appeal must also fail. [60] That said, there is one other matter to be considered, namely an application brought by the appellant to adduce fresh evidence onappeal pursuant to

section 683 of the Criminal Code. We heard the application at the outset of the hearing of the appeal but reservedjudgment pending argument on the grounds of appeal. 3.

The Fresh Evidence Application [61] The fresh evidence the appellant wished to adduce consists of: • a statement the mother made to the police, during their investigation of the child’s sexual assault complaint, saying she, the mother,had not been sexually assaulted by the accused; and • a medical report of a physical examination of the child conducted shortly after she had come forward with her allegations of sexualabuse and commenting upon the condition of her hymen. [62] The Crown provided the appellant with copies of this material prior to trial, but for whatever reason defence counsel chose not touse it.

Again we note that the competence of defence counsel was not placed in issue on the appeal. Defence counsel is presumed to becompetent in the absence of a finding to the contrary made pursuant to a formal application raising the issue of competence. No suchapplication was made in this instance. [63] The point is that, in circumstances such as these, where competent defence counsel is provided with evidence such as this inadvance of trial but chooses to make nothing of it at trial, an appellant who seeks to adduce it on appeal as fresh evidence obviouslyfaces some very real hurdles.

The principal reason for this lies in the need for finality in the litigation process.

This is not to say that incircumstances such as these, an appellant will invariably fail in seeking to adduce such evidence on appeal, but to succeed an appellantmust demonstrate that the admission of the evidence on appeal is called for in the interests of avoiding a miscarriage of justicenotwithstanding the need for finality. [64] Fresh evidence applications that seek to expand the evidentiary record at trial are governed by a set of criteria designed to achieve abalance between promoting finality and guarding against a miscarriage of justice. These are the Palmer criteria set out in R. v.

Palmer, (SCC), [1980] 1 S.C.R.759 and recently summed up by this Court in R. v. Latham, 2010 SKCA 18, 346 Sask. R. 175 atpara. 30:

(1) The proffered evidence will not be admitted, if, by due diligence, it could have been adduced in the proceeding subject to the appeal. This test is applied more strictly in civil than in criminal cases;

(2) The evidence must be relevant, in the sense that it bears upon a decisive, or potentially decisive, issue in the action;

(3) The evidence must be credible in the sense that it is reasonably capable of belief.

(4) The evidence must be "practically conclusive" of a decisive, or potentially decisive issue, in that it must be such that if believed could reasonably, when taken with the other evidence in the proceeding below, be expected to have affected the result. [ 65 ] With this in mind, we turn first to the statement of the mother. She was interviewed by a police officer three days after the child came forward with her story of sexual abuse. Asked by the police officer during the course of the interview whether the accused had sexually assaulted her, the mother, she said he had not.

The interview was taped, and the Crown gave a copy of the tape to the defence prior to trial. Hence, defence counsel was fully aware of the mother’s statement. The statement is said by the appellant to be relevant to the issue of the mother’s credibility, yet defence counsel, did not confront her with the statement when seeking to undermine her credibility. Even so, the appellant submits that the statement is “practically conclusive” of the issue concerning her credibility in the sense the statement could, when taken together with the other evidence adduced at trial, be expected to have affected the outcome.

We do not agree. [ 66 ] It hardly seems necessary to elaborate, given what we have said of the presumption of competence of defence counsel and his having chosen not to have confronted the mother with her statement to the police even though he launched an all out attack upon her credibility. It is not for us to speculate on why he chose not to do so, but we do note that it is by no means clear that the mother regarded the incident in the motel room as a sexual assault upon her, particularly at the time she was interviewed by the police.

As she said in her examination-in-chief at trial (in the context of her suspicions about the accused’s conduct regarding the child), the accused insisted upon having sexual intercourse with her while the child was awake beside them, that she did not think this was “appropriate”, and that he persisted and she relented. It is doubtful, even at this stage, let alone at the stage of the interview with the police, that the mother was thinking about this incident in terms of a sexual assault per se .

Hence, it is doubtful anything could have been made of her statement in terms of her credibility. [ 67 ] But even if it were otherwise, to suppose the trial judge might have come to a different conclusion regarding the mother’s credibility, had the statement to the police gone in at trial in one way or another, is to suppose an awful lot having regard for the place of the statement in relation to all of the other evidence regarding the sexual assault charge.

Moreover, to suppose it is open to the appellant, having chosen through his counsel at trial not to make use of the statement, to now reverse course and suggest he is entitled to a new trial based upon the mere existence of the statement, is to suppose even more. [ 68 ] In sum, we are the view the appellant has not cleared the Palmer hurdles, particularly the first and fourth. [ 69 ] With that we turn to the medical report.

In the submission of the appellant, the medical report, to the extent it concerns the condition of the child’s hymen at the time of the examination, is contrary to what the child said of the matter at trial. She was cross- examined at trial on the state of her hymen and said in effect that she understood, as the result of what a physician had told her, that she lacked a hymen in the sense she was no longer a virgin. It is not clear from her testimony when she was so informed, or by whom, bearing in mind she testified approximately two years after the examination that gave rise to the medical report in question.

The medical report, it might be noted, is impossible to understand without expert evidence as to the meaning and significance of the technical medical terms it employs in describing the condition of the child’s hymen.

Even at that, the report is ambiguous inasmuch as it expresses the conclusion that the physical examination did not reveal any “acute or chronic sequelae” of sexual abuse and “normal genital findings are common in this age group, even after vaginal penetration.” [ 70 ] Having regard for this, and in the circumstances of the case, we are of the opinion the appellant’s case for the admission of the medical report as fresh evidence does not meet the first and fourth of the Palmer criteria. [ 71 ] On the whole, then, we have decided to dismiss the application to adduce fresh evidence, and have decided to dismiss the appeal.

There will be judgment accordingly. Dated this 10th day of May 2013. _ “Cameron J.A.”__ ___________ Cameron J.A.

I agree: __ “Cameron J.A.” ___​_________ for Ottenbreit J.A. __ “Herauf J.A.” _____________ Herauf J.A