WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An
    order restricting publication in this proceeding under ss. 486.4(1), (2), (3)
    or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

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    that could identify the complainant or a witness shall not be published in any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, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 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 step-daughter), 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).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. N.L.P., 2013 ONCA 773

DATE: 20131220

DOCKET: C53455

Weiler, Gillese and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N. L. P.

Appellant

Brad Greenshields, for the appellant

Michael Perlin, for the respondent

Heard: October 17, 2013

On appeal from the convictions entered on October 1, 2010
    by Justice P. C. Hennessy of the Superior Court of Justice, sitting without a
    jury.

Lauwers J.A.:

[1]

The
    appellant was convicted of sexually assaulting D.N. contrary to s. 271 of the
Criminal
    Code of Canada
. He was also convicted of touching D.N. for a sexual
    purpose, being a person under the age of 16 years, contrary to s. 151(a) of the
Code
. He was acquitted of administering to D.N. or causing her to take
    a drug with intent to stupefy or overpower her for sexual purposes contrary to
    s. 212(1)(i) of the
Code.
The appellant was sentenced on January
    19, 2011, to 20 months in jail.

[2]

The
    appellant appeals his conviction. He abandoned the sentence appeal.

[3]

For the
    reasons set out below, I would dismiss the appeal.

The Facts

[4]

The
    appellant operated an automobile detailing business. On July 16, 2008, the
    complainant, D.N., then 14 years old, worked with the appellant detailing cars.
    Afterwards they went to dinner. The appellant testified that the complainant
    insisted on being paid that day. Since he had no cash with him, she had to go
    to his apartment. The complainant testified, however, that the appellant
    invited her to the apartment to learn how to make an appointment.

[5]

It is common
    ground that the appellant lived with his parents in a small, two bedroom, open
    concept apartment. The appellant and the complainant spent 20 minutes or so
    talking with his parents at the kitchen table and then went into the appellants
    bedroom to look at paperwork for the business. The appellant spread the
    paperwork out on the bed and the two of them spent about 20 minutes looking it
    over.

[6]

The
    complainant testified that the appellant then closed the door, opened the
    window and offered her marihuana. She smoked it and had a strong reaction,
    leaving her lying on the bed, feeling dizzy.  The trial judge noted the
    following:

She described a sexual assault, where [the appellant] held her
    down by the shoulders and her arms, removed her jeans and underwear, removed
    his own jeans and had intercourse with her. [The complainant] said she felt
    weak and could not get [the appellant] off her, that she was in and out of
    consciousness and that she tried to say no. At some point [the appellant] got
    off her and she gathered her purse and left.

[7]

The
    complainant did not report the incident to the police for several days.

[8]

The
    appellant denied that the door to his bedroom was ever closed, that he and the
    complainant were in the bedroom for more than 20 minutes, or that they consumed
    marihuana in the bedroom. He denied any sexual activity.

[9]

The appellants
    father refused to give a statement to police, telling an officer that under no
    circumstances would he be involved in the case and secondly that he would not
    have his wife speak to the officer.

[10]

The appellants
    father did not testify at his trial.  His mother had died by the time the trial
    took place.

[11]

The appellant
    attacks the trial judges determination of credibility, which, given the wildly
    divergent narratives, is at the heart of the convictions.

The Issues

[12]

The appellant
    raises four issues:

(1)

Did the
    trial judge apply higher scrutiny to the appellants evidence      than   to
    the complainant?

(2)

Did the
    trial judge conduct an acceptable reliability analysis of the       complainants
    evidence?

(3)

Did the
    trial judge err in drawing an adverse inference from the  absence of the
    appellants father as a witness?

(4)

Did the
    trial judge use the appellants failure to urge his father to speak to the
    police as a basis for rejecting his testimony, or as after-the-fact conduct
    probative of guilt, and thereby infringe his right to silence under s. 7 the
Canadian
    Charter of Rights and Freedoms
?

[13]

The first two
    issues are different ways of challenging the credibility determinations of the
    trial judge, and are best addressed together. The second two issues are related
    and will be addressed together. The appellant has also brought an application
    to admit fresh evidence respecting his fathers absence as a witness.  I will
    deal with that application in the course of resolving the last two issues.

1.       Did the Trial Judge Apply
    Different Standards in Assessing the     Evidence of the Appellant and the
    Complainant, and Did She Confuse  Reliability and Credibility?

[14]

The appellant
    complains that: The trial judge accepted the naïve complainants word
    without the need for any corroboration, while she approached the appellants
    evidence like a
Vetrovec
witness in the sense that it was unworthy of
    belief absent independent evidence to restore her faith in suspect testimony. The
    appellant argues that the trial record shows that the trial judge demonstrably
    applied different standards in assessing the evidence.

[15]

The test for assessing
    the validity of such a complaint was set by this court in
R. v. J.H.
,
    [2005] O.J. No. 39 (C.A.). Doherty J.A. noted, at para 47, that such a
    complaint is often a thinly veiled invitation to this court to substitute its
    own credibility findings for those of the trial judge, and amounts to an
    assertion that the verdict is unreasonable. He added, at para. 59:

This argument or some variation on it is common on appeals from
    conviction in judge alone trials where the evidence pits the word of the
    complainant against the denial of the accused and the result turns on the trial
    judge's credibility assessments. This is a difficult argument to make
    successfully. It is not enough to show that a different trial judge could have
    reached a different credibility assessment, or that the trial judge failed to
    say something that he could have said in assessing the respective credibility
    of the complainant and the accused, or that he failed to expressly set out
    legal principles relevant to that credibility assessment. To succeed in this
    kind of argument, the appellant must point to something in the reasons of the
    trial judge or perhaps elsewhere in the record that make it clear that the
    trial judge had applied different standards in assessing the evidence of the
    appellant and the complainant.

[16]

The trial judge carried
    out a methodical assessment of the evidence. In her reasons, she first related
    the agreed upon evidence and then described the evidence of the complainant and
    the appellant in a straightforward fashion.

[17]

In the structure
    of the trial judges reasoning, there are echoes of the jury instruction
    structure prescribed by the Supreme Court in
W.(D.)
, [1991] 1 S.C.R.
    742, at pp. 757-758. She considered the evidence of the accused, which she did
    not believe on the critical issues. She also found that she was not left in
    reasonable doubt by his evidence. She considered the evidence of the
    complainant; although she did not accept all of the complainants evidence, she
    was convinced by it, and by the other evidence, of the appellants guilt beyond
    a reasonable doubt.

[18]

The trial judge first
    assessed the appellants credibility, having regard to the internal consistency
    and plausibility of his evidence about his business. She noted that the
    appellant did not keep records, yet he appeared to have a comprehensive recall
    of the number of vehicles that he had serviced on July 16, 2008 when the police
    questioned him in late November of that year. But, in describing the course of
    the day, the trial judge observed that he made a number of logically
    inconsistent statements. The appellants evidence that he did not have enough
    cash on hand to pay the complainant was contradicted by his evidence about the
    number of the vehicles that he said that he serviced that day.  As a result, he
    changed his evidence on at least two occasions to reduce the number of cars
    serviced. The trial judge described as unbelievable that the appellant would
    remember how many cars he worked on that day and who paid in what way on a day
    that was otherwise unremarkable.

[19]

The trial judge
    rejected the appellants evidence about not having enough cash on hand to pay
    the complainant and requiring her to go to his apartment to be paid.  The trial
    judge observed that it is inconsistent to say you always pay cash at the end
    of the day if, in fact, you dont keep your money at your place of business.
    She also rejected the appellants innocent explanation of reviewing paperwork in
    his bedroom (because it had no table and chairs) as in the past he had twice
    reviewed work schedules with the complainant and her cousin at the kitchen
    table where there was room to spread paper out.

[20]

The judge then
    turned to assess the complainants evidence. Her evidence-in-chief came in
    through interviews done in September and December 2008. She was cross-examined
    at trial.

[21]

The trial judge
    described the complainant as a rather naïve teenager but who nonetheless gave
    her evidence in a manner that persuaded me she had good recall and could relate
    the events of the day and the incident with a number of specific details.
    Elsewhere she added that the complaint gave her evidence in a straightforward
    way, not emotional, not embellished and without any sweeping allegations. The
    complainant admitted that there were no inappropriate looks or conduct or words
    prior to the incident. She admitted agreeing that the price of her dinner would
    be deducted from her pay for the day. She admitted that she smoked marihuana
    with the appellant and was afraid to tell her mother about the assault because
    of that.  She included many details in her testimony about the visit, including
    where people sat, where the clock was, and how she came to be at work that day.
    Her evidence was internally consistent.

[22]

The trial judge
    also considered the complainants credibility in relation to two parts of the
    complainants evidence that the appellant argues were totally unbelievable.

[23]

First, the
    appellant argued that the complainants evidence about the nature and duration
    of the sexual assault was not credible. The trial judge summarized the
    complaints evidence in her reasons:

[T]he complainant accepted in a review of the time lines that
    the sexual intercourse lasted over one hour and during that hour that [the
    appellant] was off of her for at least five minutes during which time, she
    could neither call out nor leave. She attributed her inability to make loud
    noises or to push him off to her strong reaction to marihuana.

[24]

The appellant
    argues that the complainants evidence was not reliable, based on her ability
    to observe and accurately recall the events, given the reported effects of the
    marihuana on her, and argues that the trial judge confused credibility and
    reliability.

[25]

In
R. v.
    C.(H.)
, 2009 ONCA 56, Watt J.A. explained the difference between
    credibility and reliability, at para. 41:

Credibility and reliability are different. Credibility has to
    do with a witness's veracity, reliability with the accuracy of the witness's
    testimony. Accuracy engages consideration of the witness's ability to
    accurately i. observe; ii. recall; and iii. recount events in issue. Any
    witness whose evidence on an issue is not credible cannot give reliable
    evidence on the same point. Credibility, on the other hand, is not a proxy for
    reliability: a credible witness may give unreliable evidence:
R. v.
    Morrissey
(1995), 22 O.R. (3d) 514, at 526 (C.A.).

[26]

Another relevant
    authority is
R. v. Sanichar
, [2012] O.J. No. 748 (C.A.), appeal
    allowed 2013 SCC 4. The Supreme Court adopted the reasons of Laskin J.A. who
    dissented in this court. He noted, at para. 72 of his decision:

[A]lthough credibility and reliability are distinct concepts,
    they both involve factual determinations that, as my colleague notes, attract
    significant deference from a reviewing court: see
R. v. R.W.B
. (2003),
    174 O.A.C. 198, at para. 9. An appellate court should not interfere with a
    trial judge's assessment of the reliability of a complainant's evidence simply
    because it would have arrived at a different result.

[27]

The trial judge
    noted that there was no evidence about the strength of the marihuana nor on
    the exact component of the substance smoked. She noted that the appellant had
    admitted smoking marihuana with the complainant, although he said it was
    outside. The trial judge rejected the reliability argument in the following
    words:

Defence counsel argued that [the complainants] statement that
    the intercourse lasted an hour is completely unbelievable. I do not find that
    the complainants credibility is terribly damaged by her confusion over time.
    She repeated that she was drowsy and in and out of consciousness. She was a 14 year
    old girl, high on drugs who was not sexually active. That her time estimates
    with respect to the sex act are likely not accurate, does not immediately
    damage her credibility. I take into account her age and lack of sexual
    experience as she tried to relate what had happened and in particular, where
    certain body parts were for how long during a sexual assault. It was obvious in
    her interview with the police that she was sexually naïve.

[28]

The trial judge
    focussed on the important issue, which was whether the sexual assault took
    place. She found that the complainants evidence was reliable on that point,
    even though the complainant might well have been mistaken about the duration of
    the assault. In my view, the trial judge adverted to and resolved the
    reliability issue. I am not persuaded that she erred in her approach or in the
    result.

[29]

The second
    credibility issue raised by the defence was that it is not believable that
    this incident could have taken place with the two [] parents in the next
    room.  The trial judge said:

This argument is a double-edged sword for the defence.
    Firstly, it is not unbelievable that some parents would accept that their
    31-year-old son, coming home in the evening with a woman who he can then takes
    to his bedroom [
sic
]. There was no evidence that the parents knew the
    age or grade of [the complainant] in any event, the evidence shows that it was
    completely acceptable to them that their 31-year-old son took a very young
    woman into his bedroom, according to the accused for at least 20 minutes. That
    the visit could have continued for another hour or hour-and-a-half with the
    door closed is not any more unbelievable.

[30]

The trial judge
    took the view that the appellant had orchestrated the evening to get the
    complainant to his apartment and into his bedroom for the purpose of engaging
    in sexual activity with her. She noted: the unlikelihood of the appellants
    story that he had no cash at work to pay her; that on the complainants two
    prior visits to the apartment with her cousin they had discussed business at the
    kitchen table, so there was no need to go to his bedroom to review the
    paperwork; and that the appellant gave the complainant marihuana in his bedroom.

[31]

In my view, the
    trial judge carried out an adequate credibility assessment. She took account of
    the undisputed evidence. She considered the two competing narratives in light
    of the differences in the evidence of the appellant and the complainant, the
    internal inconsistencies in the appellants evidence and its plausibility, and
    basic common sense. She considered the ability of each witness to recall, the
    level of detail, and whether their evidence changed over the course of
    testifying, as the appellants plainly did. I reject the appellants argument
    that the trial judge based her assessment of the complainants credibility on
    demeanour alone. Credibility is an area where great deference is due to the
    trial judge. There is no basis for finding that she committed an error in
    principle.

2.       Did the Trial Judge Err in
    Drawing an Adverse Inference from the  Absence of the Appellants Father as a
    Witness?

[32]

The appellant
    makes two arguments. The first is that no adverse inference should have been
    drawn by the trial judge from the appellants failure to call his father as a
    witness. The second is that the trial judge took the inference too far. In
    support of his adverse inference arguments, the appellant brought a fresh
    evidence application to introduce a medical explanation for his failure to call
    his father as a witness

(i)

The Adverse Inference

[33]

The trial context
    is critical to the assessment of the adverse inference issue. Very early in his
    evidence in chief, the appellant was asked how his father was doing. He
    responded that his mother had died and his father was dealing with that and
    with a mental issue. He testified that its been with him for a period and
    ever since my mom has passed away things have been a little bit worse. The
    appellant testified that his fathers difficulties involved hospitalization and
    medication.

[34]

In the
    appellants cross-examination the following exchange occurred:

Q:      Now sir, you indicated that your father is now dealing
    with a mental issue?

A:      Yes he is.

Q:      And do you have a medical report to offer the court
    today?

A:      Yes.  I could get that information if you need it.

Q:      So you do have a medical report?

A:      If you need it, we could get it.

Q:      And so you are saying that your father is unable to
    come here to testify?

A:      Yes.

[35]

The trial judge
    made the following relevant comments:

[T]he parents did not give evidence at the trial.  By the time
    of the trial, [the appellants mother] had passed away. [His father] however,
    was not called. The defence did not call evidence to give an explanation for
    this. Defence counsel did not canvass this issue in any way with the defendant.
    On cross-examination, the defendant said that his father was dealing with a medical
    issue, but he did not have a medical report. He suggested that his father could
    not testify. The defence did not say that his father was asked to testify or in
    whose opinion he was unable to testify. Nor did he specifically say that the
    medical issues were related to the father not being there.

I do not accept this brief remark as an explanation,
    affirmatively put forward by the defence that [the appellants father] was
    unavailable or unable to testify. If that were the case, I would have expected
    it to be specifically canvassed in the examination-in-chief of the defendant,
    or to be put to the court through medical evidence or other evidence.

.

[The appellants father] is the one person who could give
    somewhat independent evidence of how long  [the complainant] was in the bedroom
    and whether the door was closed.  [The father] was a critical witness for the
    defence as he was capable of corroborating the testimony of the defendant that
    the two of them were only in the bedroom for 20 minutes and that the door was
    open.  As such, the unexplained failure to call him permits the inference that
    his evidence would not have supported the defendants testimony.

[36]

The trial judge
    went on to instruct herself that she could not draw an inference of guilt from
    the failure of the defence to call a particular witness, citing
R. v.
    Marshall
, [2005] O.J. No. 3549 (C.A.),
R. v. Charette
(1982), 67
    C.C.C. (2d) 357 at 359.  She noted that the trier of fact may only infer that,
    had the witness been called, his or her testimony would have been unfavourable
    to the accused. She made the same comment twice more, and then reached the
    following conclusion:

If the adverse inference is that the complainant was in the
    bedroom behind a closed door for a period of time longer than the defendant had
    testified, the credibility of the defendant is weakened on the issue of
    opportunity.  And it further allows me to find that the credibility of the
    complainant is not damaged therefore by the testimony of the defendant on that
    point.

I do not accept the defendants evidence of how long he was in
    the bedroom and whether the door was closed.  The absence of otherwise
    available evidence leads me to the conclusion that [fathers] evidence would
    not [be] consistent with the defendants evidence.

[37]

As noted, the
    trial judge found, that as the result of internal inconsistencies in the
    appellants own evidence, his evidence does not leave with in any doubt [
sic
].
    Later in her reasons, she stated that the defendants evidence does not raise
    a reasonable doubt.

[38]

Neither the Crown
    nor the defence made any reference in their submissions to the trial judge
    about the absence of the appellants father as a witness, nor to any inferences
    that might be drawn. The trial judges chain of reasoning leading to the
    adverse inference was entirely her own.

(ii)

The Fresh Evidence Application

[39]

The appellant
    brought the fresh evidence application to displace the trial judges adverse
    inference by providing a medical explanation for his failure to call his father
    as a witness.

[40]

The application
    relies on the affidavit of the fathers treating psychiatrist, Dr. Popuri
    M. Krishna, which states:

I was approached in the fall of 2010 by trial counsel to [the
    appellant] (not Mr. Greenshields) for the purposes of providing an opinion on
    [fathers] ability to testify in court in light of his mental health issues. [ Father]
    was a patient in my outpatient clinic at the time that I had been treating on a
    regular basis. I provided a letter to trial counsel dated September 15, 2010
    with the understanding that it would be filed with the court.

[41]

Dr. Krishna attaches
    a copy of the letter and adopts the contents as true and accurate.  He goes on
    to state:

[Father], who remains under my psychiatric care as of the date
    of this affidavit, continues to suffer from bi-polar disorder with mania, a
    diagnosis that applied at the time of my September 15, 2010 letter. At that
    time, and throughout the summer of 2010 [fathers] mental health had been
    unstable. [Fathers] mental health generally had deteriorated [over] the summer
    of 2010 following the death of his wife [the appellants mother].  I
    understand that the events relevant to the trial dated back to about July 16,
    2008. In my opinion, [father] was unable to testify as a witness in court
    proceedings as a result of his acute bi-polar disorder. [Fathers] unstable
    mental illness at the time had a significant impact on his ability to reliably
    observe, recollect and recount information and apply it to his current
    surroundings. This would be particularly so with respect to testifying as to
    the details of events that happened years in the past.

[42]

Dr. Krishnas
    pre-trial letter to trial counsel was not as categorical or explanatory as his
    affidavit.  The letter stated:

I have been following the above-named in my outpatient clinic
    regularly. He suffers from bi-polar disorder with mania and most recently his
    mood has been still unstable.  I have last seen him in the outpatient clinic on
    15/09/10 and his medication at that time  All these medications are given in a
    blister pack for improvement in compliance. The patient in my opinion is not
    fit to attend court as he has a strong bi-polar disorder with poor ability to
    comprehend the information and apply this to his current situation. The support
    of his family members, particularly his son has been very helpful in managing
    his mental illness. I hope this information is helpful in dealing with this
    patient.

[43]

Even though
    counsel had the doctors letter before the start of the trial, he did not
    introduce it until the sentencing hearing, when it was filed as an exhibit.

(a)
The Governing Principles

[44]

The principles
    relevant to the admission of fresh evidence on appeal are set out in
Palmer
    v. The Queen
[1980] 1 S.C.R. 759, 1979 CarswellBC 541, at para. 22 by
    MacIntyre J:

(1)

The evidence should generally not
    be admitted if, by due diligence, it could have been adduced at trial provided
    that this general principle will not be applied as strictly in a criminal case
    as in civil cases.

(2)

The evidence must be relevant in
    the sense that it bears upon a decisive or potentially decisive issue in the
    trial.

(3)

The evidence must be credible in
    the sense that it is reasonably capable of belief, and

(4)

It must be such that if believed
    it could reasonably, when taken with the other evidence adduced at trial, be
    expected to have affected the result. [Citations omitted.]

[45]

This court added
    an important gloss in
R. v. Maciel
2007 ONCA 196. Doherty J.A. said,
    at para. 49:

Evidence offered on appeal to challenge factual findings at
    trial is inadmissible unless it is relevant to a material issue, reasonably
    capable of belief and sufficiently cogent that it could reasonably be expected
    to have affected the result at trial when considered in combination with the
    rest of the evidence. In short, if the evidence is not sufficiently strong to
    compel the ordering of a new trial, it cannot be received on appeal. [Citation
    omitted.]

[46]

He added, at
    para. 51:

Exactly where on the continuum between evidence that is
    sufficiently probative to meet the preconditions to the admissibility of
    evidence on appeal and evidence that is so probative as to warrant an
    acquittal, evidence will become "compelling" must depend on the
    totality of the circumstances. Where the proffered evidence was not led at
    trial because of a calculated decision made by an accused, the integrity of the
    criminal justice system will suffer if the evidence is received on appeal and a
    new trial is ordered. That harm can only be justified if the proffered evidence
    gives strong reason to doubt the factual accuracy of the verdict.

[47]

An appellate
    court must balance the competing tensions of respecting finality and avoiding
    injustice. Whether trial counsel made a calculated decision is a factor. As
    Doherty J.A. noted, at para 50 of
Maciel
:

If the evidence could have been led at trial, but for tactical
    reasons it was not, some added degree of cogency is necessary before the
    admission of the evidence on appeal can be said to be in the interests of
    justice. Otherwise, the due diligence consideration would become irrelevant.

(b)
Application of the Governing
    Principles

[48]

The appellant had
    the evidence at the time of trial and, in the terms of
Palmer
, it could
    have been adduced then. Was there a calculated decision at play in this case?

[49]

As noted, the
    complainant and appellant agree on much of what happened in the apartment over
    the course of the evening until about 20 minutes after they entered the
    appellants bedroom. The complainant testified that the appellant then closed
    the bedroom door, and a short time later pulled out a marihuana pipe, which
    they smoked. He thereafter sexually assaulted her for more than one hour.

[50]

The appellant
    denied that the door was ever closed, that they were in the bedroom for more
    than 20 minutes, that they consumed marihuana in the bedroom, and that he
    sexually assaulted the complainant.

[51]

The strategic
    question for the defence at trial was whether to call the appellants father.
    That issue was plainly considered by the defence before the trial, since
    counsel had the letter from the fathers treating psychiatrist,
    Dr. Krishna.

[52]

In order to justify
    the introduction of fresh evidence on appeal under the
Palmer
test, an
    affidavit sworn by trial counsel is usually filed that explains why trial
    counsel did not introduce the evidence at trial In this case the medical
    evidence was, or could have been, available, but it was not put forward by the
    defence in any form until the sentencing hearing. Trial counsel did not file an
    affidavit explaining his reasoning.

[53]

Counsel for the
    appellant urges this court to conclude that there was no downside to the defence
    putting the doctors letter before the court during the trial, and that the
    interests of justice require that we admit it now. Ineffective assistance of
    counsel is not, however, alleged. The doctor states that his letter was given
    in the expectation that it would be filed with the court. Perhaps he
    indicated to trial counsel that, although he was prepared to have the letter
    filed, he was not prepared to come to court and be cross-examined on his
    opinion that the father was not fit to give evidence owing to his bi-polar
    disorder. The doctors letter also states that the father was being treated and
    unable to testify from 2010 onwards.  Because there is no affidavit from trial
    counsel, I do not know anything about the time frame between 2008 and 2010,
    such as whether trial counsel interviewed the father and determined that he had
    relevant evidence to give for the defence. In short, I cannot adopt appellate
    counsels argument that there was no downside to the defence in putting the
    doctors letter before the trial court.

[54]

The absence of an
    affidavit by trial counsel leads me to conclude that he and his client made a
    strategic decision not to call the appellants father and to rely on the
    Crowns burden of proof.

[55]

The usual
    practice of this court is not to relieve against the consequences of a
    strategic decision. The appellant argues that the court should depart from its
    practice in this case and admit the fresh evidence; justice requires the court
    to do so in this case because of the trial judges heavy reliance on the
    adverse inference drawn from fathers absence as a witness. The appellant
    argues that the trial judges reasons for rejecting his explanation for not
    calling his father are not supported on the record, particularly in light of
    the medical evidence filed at the sentencing and the proffered fresh evidence,
    making the verdict unreasonable and the convictions unsafe.

[56]

In my view, the
    fresh evidence fails the
Palmer
test. The defence could have introduced
    the evidence at trial but did not for strategic reasons. I would not admit it
    on appeal. While the medical evidence is relevant, it is perfunctory and not
    sufficiently compelling to meet the standard in
Maciel
. I would not
    relieve the defence of the consequences of the strategic decision not to call
    the appellants father as a witness.

[57]

Before turning to
    the appellants detailed arguments, I describe the general law on situations in
    which an adverse inference may be drawn from the absence of a witness.

(iii)

Adverse Inferences- General
    Principles

[58]

In
R. v.
    Rooke
, [1988] B.C.J. No. 104,
1988 CarswellBC 21,
    at paras. 83-88
(B.C. C.A.), Esson J.A. cited Wigmore on Evidence,
    Chadbourn Revision, Vol. 2. The root of the inference is laid out by Wigmore at
    para. 285:

The failure to bring before the tribunal some circumstance,
    document, or witness, when either the party himself or his opponent claims that
    the facts would thereby be elucidated, serves to indicate, as the most natural
    inference, that the party fears to do so; and this fear is some evidence that
    the circumstances or document or witness, if brought, would have exposed facts
    unfavourable to the party.

[59]

Esson J.A.
    commented, at para. 113:

Wigmore in paragraph 290(5) suggests that it is "a
    reasonable rule" that an adverse inference can be drawn only in respect of
    an issue on which the evidentiary burden rests on the party. There may be
    exceptions to that rule, but the absence of such an issue should, I think, be
    seen as a warning flag that an adequate logical basis for drawing an inference
    is not present. Unless there is a clear logical basis for drawing an adverse
    inference, to instruct the jury that it may do so will create an undue risk of
    putting on the accused an onus inconsistent with the presumption of innocence.

[60]

In a criminal
    case, the onus of proof is on the Crown, leading Binnie J. to say, in
R. v.
    Jolivet
,
[2000] 1 S.C.R. 751
,
at para. 26:

The principle applies in criminal cases, but with due regard to
    the division of responsibilities between the Crown and the defence, as
    explained below. It is subject to many conditions. The party against whom the
    adverse inference is sought may, for example, give a satisfactory explanation
    for the failure to call the witness as explained in
R. v. Rooke
(1988), 40 C.C.C. (3d) 484 (B.C.C.A.), at p. 513, quoting Wigmore on Evidence
    (Chadbourn rev. 1979), vol. 2, at para. 290:

In any event, the party affected by the inference may of
    course explain it away by showing circumstances which otherwise account for his
    failure to produce the witness. There should be no limitation upon this right
    to explain, except that the trial judge is to be satisfied that the
    circumstances thus offered would, in ordinary logic and experience, furnish a
    plausible reason for nonproduction.

[61]

A trial judge
    must take care not to effectively reverse the onus of proof in drawing an
    adverse inference. In
R. v. Zehr
, [1980] O.J. No. 1130 (C.A.), at
    paras. 6 and 13, Brooke J.A. explained:

While permissible in some cases, comment on the failure to call
    a witness should only be used with great caution. This kind of comment from a
    trial judge can seriously affect what might otherwise be the jury's assessment
    of the credibility of those who do testify and perhaps, more importantly the
    integrity of the case. Such comment and instruction whether referable to the
    prosecution or the defence is really a comment on the conduct of the case and
    the instruction gives it some evidentiary significance. There are many reasons
    why counsel may choose not to call a witness, and our courts will rarely
    question the decision of counsel, for the system proceeds on the basis that
    counsel conducts the case. Often a witness is not called, and if the reason was
    known it would not justify an instruction that an adverse inference might be
    drawn from the witness not being called. Of importance under our system,
    counsel is not called upon, or indeed permitted, to explain his conduct of a
    case.

[62]

As Martin J.A. noted in
R. v. Koffman
, [1985] O.J. No. 133 (C.A.),  caution must be exercised even
    where it is appropriate for a trial judge to comment:

Even where it is appropriate for the trial judge to comment on
    the failure of an accused to call a particular witness it is incumbent upon the
    trial judge to instruct the jury that there is no obligation on the defence to
    call a particular witness and that there may have been a perfectly valid reason
    for not calling the witness. the failure to call a witness should not be given
    undue prominence and a comment should only be made where the witness is of some
    importance in the case.

[63]

The defence is
    ordinarily under no obligation to call a witness:
Zehr,
at para. 8. An
    important exception is where a defence is raised on which the burden of proof
    is on the defence, for example, in an alibi defence. But even here, great
    caution must be taken. See
R. v. Witter
, (1996) 27 O.R. (3d) 579, [1996]
    O.J. No. 358
per
Doherty J.A. at para. 31.
NCR v. Dupuis
, (1995)
23 O.R. (3d) 608
, [1995] O.J. No. 1481
per
Osborne J.A at para 33.

(iv)

Was it open to the trial judge to
    draw the adverse inference?

[64]

I note again that
    at trial neither the Crown nor the defence raised the issue of whether an
    adverse inference could be drawn from the fathers absence as a witness. While
    it would have been preferable for the trial judge to point the issue out to
    counsel during the trial and invite comment, in my view the trial judge did not
    err in drawing an adverse inference in the circumstances of this case.

[65]

The appellant
    argues, based on Wigmore, that an adverse inference should only be drawn in
    respect of an issue on which the evidentiary burden logically rests on the
    accused person. He cites two examples. One is in an alibi case such as
Zehr
and
Dupuis
.  The other is: where the accused in his own testimony
    first raises the corroborative significance of the witness to his defence,
    citing
Charrette
and
Marshall
. This case, the appellant
    asserts, does not fall into either of these examples.

[66]

The appellant
    submits, in his factum, that:

The potential corroborative significance of [his father] did
    not emerge peculiarly from the appellants testimony. The suggestion that the
    appellants parents were present proximate to the assault first emerged from
    the complainants statement and was investigated (half-heartedly) on the day of
    the appellants arrest. The potential corroborative value of [his fathers]
    evidence thus applied
equally
as between the Crown and defence versions.

[67]

This case, in my
    view, does fall into the category of cases where the accused in his own
    testimony first raises the corroborative significance of the witness to his
    defence.  The appellant raised the corroborative significance of his fathers
    evidence in his testimony.

[68]

The defence sowed
    the seeds, in chief, of an explanation for the absence of the appellants
    father as a witness for the defence; the Crown could not and did not leave this
    explanation untested in cross examination. The fact in issue was introduced by
    the defence, thereby raising the corroborative significance of the missing
    witness to the defence. This is a situation, echoing Wigmore, where the trial
    judge could draw an adverse inference, since the evidentiary burden was assumed
    by the defence in raising the issue.

(v)

Did the trial judge take the
    adverse inference too far?

[69]

The appellant argues
    that the trial judge took any possible adverse inference too far, even though
    she correctly self-instructed on the pertinent principles.

[70]

The Supreme Court
    pointed out, in
Jolivet,
at para. 28, that care must be taken about
    the exact nature of the adverse inference sought to be drawn. The inference
    taken by the trial judge is set out in her reasons at pp. 16-17 of the
    decision, which I repeat here for convenience:

If the adverse inference is that the complainant was in the
    bedroom behind a closed door for a period of time longer than the defendant had
    testified, the credibility of the defendant is weakened on the issue of
    opportunity.  And it further allows me to find that the credibility of the
    complainant is not damaged therefore by the testimony of the defendant on that
    point.

The credibility of the defendant is critical with respect to
    one of the central issues in the case that is, whether the complainant stayed
    in the bedroom, behind a closed door for almost an hour after the business
    discussion.  [the appellants father] could therefore be considered a witness
    of some importance.  It follows, according to the Marshall decision, that this
    is a case in which an adverse inference could be drawn, that his evidence would
    be unfavourable to the accused.

If the
    adverse inference is that the complainant was in the bedroom behind a closed
    door for a period longer than the defendant had testified
, the
    credibility of the defendant is weakened on the issue of opportunity.  And it
    further allows me to find that the credibility of the complainant is not
    damaged therefore by the testimony of the defendant on that point.

I do not accept the defendants evidence of how long he was in
    the bedroom and whether the door was closed. The absence of otherwise available
    evidence leads me to the conclusion that [fathers] evidence would not [be]
    consistent with the defendants evidence.

[71]

The appellant
    argues that the trial judge impermissibly drew an inference of guilt, by using
    the witnesss absence as an affirmative piece of evidence tending to prove
that the

complainant was in the bedroom behind a closed door
    for a period longer than the defendant had testified
. The
    appellant submits that in doing so the trial judge crossed a subtle but
    crucial line.

[72]

In
Koffman
,
    Martin J.A. limited the scope of any adverse inference:

The judge in the present case instructed the jury that an
    adverse inference could be drawn from the failure to call a witness but the
    nature of the inference that could be drawn was not explained to them and the
    jury may have thought that they could draw an inference of guilt, whereas the
    only inference that can be drawn, where comment on the failure to call a
    witness is appropriate, is that the jury may infer that if the witness were
    called his testimony would be unfavourable.

[73]

Some cases have
    said that, although an inference of guilt cannot be drawn, an inference can be
    drawn that the evidence would be unfavourable:
Koffman
,
Marshall
,
    at para. 47. Other cases have said that the available inference is that the
    evidence would not be helpful or would not be supportive:
R. v.

Rudge
,
    2011 ONCA 791, at para. 81,
Jolivet
, at para. 28. Yet other cases
    have suggested that the adverse inference simply goes to credibility:
Charette,
at para. 6.

[74]

These somewhat subtle
    differences in language do not get at the substantive point that Martin J.A. made
    when he distinguished, in
Koffman,
between an adverse inference of
    guilt, on the one hand, and an adverse inference that the missing evidence
    would be unfavourable, on the other hand. The significance is this: the Crown
    cannot use the adverse inference as positive evidence to meet its burden of
    proof; the adverse inference can be used only to undermine the defence evidence
    to which it relates.

[75]

This, in my view,
    is how the trial judge used the adverse inference. She did not use it as positive
    evidence of guilt. Instead, she considered that the absence of the fathers
    corroborative evidence further eroded the already shaky credibility of the
    appellants claim that he had no opportunity to sexually assault the
    complainant because he and the complainant were only in the bedroom for twenty
    minutes with the door open.

[76]

This limited use
    of the adverse inference was proper, since these are the very facts on which the
    appellants father would have been expected to corroborate the appellant, if
    the appellants evidence were true. Contrary to the appellants contention, the
    trial judge did not draw an inference of guilt from the absence of fathers
    evidence. She merely used the adverse inference as a basis to further explain
    why she did not find the appellant to be credible on these critical matters. As
    a result, and after considering all of the appellants testimony, she concluded
    that she did not believe the appellants version of events.

[77]

In my view, it
    was open to the trial judge, when faced with competing narratives, to conclude
    that she believed the complainants version of events, including the fact that
    she and the appellant were in the bedroom for longer than twenty minutes with
    the door closed. The fathers failure to testify was only one part of the
    reasoning process that led the trial judge to this determination. As with all
    credibility findings, her finding is entitled to considerable deference from
    this court.

[78]

The appellant makes
    a related argument that his decision not to assist police played a prominent
    role in the trial judges rejection of his evidence.

[79]

As I noted
    earlier, the appellants father refused to give a statement to police, telling
    an officer that under no circumstances would he be involved in the case and
    secondly that he would not have his wife speak to the officer.

[80]

The Crown
    cross-examined the accused on why he had not asked his parents to cooperate
    with police. Defence trial counsel did not object.

[81]

The appellant
    argues that the trial judge erred by placing weight on the appellants failure
    to encourage his parents to speak to police on his behalf. He argues that his
    error violated his right to silence as protected by s. 7 of the
Charter
.

[82]

The appellant
    argues, quite rightly, that an accused person is under no obligation to assist
    police or to proactively protest his innocence.  The appellants argument goes
    further; he asserts: Just as an accused may exercise his right to a silence by
    not giving a statement, he may also remain silent by choosing not to lobby for
    others to speak to police on his behalf.

[83]

In my view there
    is a principled distinction between the two situations.  While the right to
    silence with respect to persons in authority is firmly established in the law:
R. v Broyles,
[1991] 3 SCR 595, at paras. 22-25,
R. v. Buhay,
2003
    SCC 30, at paras. 25-31, the appellants parents were not persons in authority.

[84]

The trial judge
    did not, as the appellant argues, use this evidence as a prominent basis for
    rejecting his evidence. At most she used it to support her decision to draw the
    adverse inference from his fathers failure to testify.

Disposition

[85]

Accordingly, I
    would dismiss the appeal.

Released:
    December 20, 2013 KMW

P.
    Lauwers J.A.

I
    agree K.M. Weiler J.A.

I
    agree E.E. Gillese J.A.


WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

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, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 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 step-daughter), 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).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)     on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Phan, 2013 ONCA 787

DATE: 20131224

DOCKET: C55011

Rouleau, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sovann Phan

Appellant

Michael Davies, for the appellant

Roger Shallow, for the respondent

Heard:  June 13, 2013

On appeal from the conviction entered on May 27, 2011 by
    Justice Roydon Joseph Kealey of the Superior Court of Justice, sitting without
    a jury.

Epstein J.A.:

[1]

The appellant, Sovann Phan, was convicted of one count of sexual assault
    after a judge-alone trial. Mr. Phan was charged after being observed touching
    the breasts of Ms. D.A.R., an 18 year-old severely disabled resident in a
    long-term care facility where Mr. Phan worked as a cleaner.

[2]

In this conviction appeal, counsel for Mr. Phan advances two arguments,
    both relating to the key factor in the case  the credibility of Mr. Phan and
    that of Amina Ege, a co-worker who observed the alleged assault.  He submits
    that the trial judge erred in his articulation and application of the test in
R.
    v. W. (D.)
, [1991] 1 S.C.R. 742.  He also argues that the trial judge
    subjected the evidence of the two central witnesses, Mr. Phan and Ms. Ege, to
    an uneven level of scrutiny.

[3]

For the reasons that follow, I would dismiss the appeal.

THE EVIDENCE AT TRIAL

[4]

The issue in this case was whether the Crown
    proved beyond a reasonable doubt that Mr. Phan did, in fact, touch Ms. D.A.R.s
    breasts.

[5]

Ms. Ege, the only witness to the incident, had been working at the
    facility as a personal care worker for about 13 years. She described Ms. D.A.R.
    as a young woman who suffers from severe developmental delays as well as
    problems due to seizures. Ms. D.A.R. is unable to take care of herself.  She is
    unable to talk.  Ms. D.A.R. had been a resident of the facility for about six months
    when the incident giving rise to the prosecution took place.

[6]

On June 13, 2009, Ms. Ege observed Mr. Phan cleaning in the area outside
    Ms. D.A.R.s room, for no apparent reason.  Ms. Ege was already suspicious of Mr.
    Phan because she had seen him entering Ms. D.A.R.s room with unusual
    frequency, often after glancing furtively around him.  Mr. Phans activity
    outside Ms. D.A.R.s room on June 13 concerned her.  As a result, Ms. Ege secretly
    went into Ms. D.A.R.s room and hid in a closet, leaving the closet door open
    sufficiently so she could see the bed where Ms. D.A.R. was lying down, flat on
    her back, with her hands behind her head.

[7]

Ms. Ege testified that a few minutes later, Mr. Phan came into the room,
    empty-handed. He went to Ms. D.A.R.s bed, put his hands under her shirt and
    massaged her breasts for about five seconds. He then left the room. Ms. Ege
    immediately reported what she had seen.

[8]

In his testimony at trial Mr. Phan denied any touching of a sexual
    nature.  He said that he had been replacing toilet paper and paper towels and
    noticed that Ms. D.A.R.s shirt was up around her chest, leaving her abdomen
    bare.  He first looked for a nurse to tend to Ms. D.A.R.s need to be covered.
    Unable to find one, he went back to her room and pulled her shirt down for
    her.  He then drew Ms. D.A.R.s sheet up to cover her.

[9]

Mr. Phan was suspended as a result of the reported assault.  He testified
    that his union had asked him to write a letter describing the events so that a
    union representative could advocate for him. In the letter, Mr. Phan stated
    that when he decided to pull Ms. D.A.R.s shirt down, he felt uncertain and
    asked [himself] whether [his] help was right or wrong.

[10]

Others
    who worked at the residence also testified at trial.  Kelly Cloutier, the administrator
    of the facility, said that cleaning staff such as Mr. Phan are not permitted to
    care for residents.  That responsibility is left exclusively to healthcare aids
    and nurses.  Another healthcare aid at the facility gave evidence that on one
    occasion, she saw Mr. Phan pushing Ms. D.A.R. in a wheelchair and that she told
    Mr. Phan that he was not permitted to do so.

THE JUDGMENT BELOW

[11]

The trial judge acknowledged that the case turned on an assessment
    of the testimony of Mr. Phan and Ms. Ege.  He then set out the principles that
    would inform this assessment, the principles in
W. (D.),
which he expressed as follows:

Therefore analyzing the core evidence together with the whole
    of the testimony, if I believe Mr. Phan or have a reasonable doubt because I do
    not know whether to believe him or not, then I must acquit. In other words, if
    after a careful analysis of all the evidence I am unable to decide whom to
    believe, an acquittal is the proper result. However, even if I am not so
    inclined, then I must consider whether the evidence I accept is sufficiently
    persuasive and convincing to satisfy me, beyond a reasonable doubt, as to Mr.
    Phans guilt.

[12]

The
    trial judge proceeded with a detailed review of various problematic aspects of
    Mr. Phans testimony such as his evidence that he could not locate a nurse to
    help cover Ms. D.A.R.; his reliance on his purported difficulties with the
    English language; his claim that he was unaware that he was not permitted to
    touch Ms. D.A.R.; his overly detailed evidence about precisely how he rolled
    down Ms. D.A.R.s shirt; and his description of Ms. D.A.R.s shirt.

[13]

The
    trial judge summarized his reaction to Mr. Phans evidence as follows:

In general, I found Mr. Phan evasive, unresponsive and vague in
    many areas of his testimony, especially those which focussed on his actions in
    room 349 with [Ms. D.A.R.] at the time in question. For all of the aforesaid
    reasons, I cannot accept Mr. Phans version of what happened between he and [Ms.
    D.A.R.] in room 349 and the afternoon of June the 13th, nor do I have a
    reasonable doubt that what he says may be true. And as such I am left to
    consider whether the balance of the evidence satisfies the onus which the Crown
    must meet.

[14]

The
    trial judge then listed and analyzed each aspect of Ms. Eges testimony that,
    according to Mr. Phans counsel, rendered it unreliable and incredible. These
    issues included, among others, inconsistencies about what closet Ms. Ege hid
    in, whether Mr. Phan put his hands through or over Ms. D.A.R.s bedrails, and
    the extent to which Ms. Ege could observe Ms. D.A.R.s bed from her hiding
    spot.

[15]

Following
    his review of these concerns, the trial judge noted various positive aspects of
    Ms. Eges testimony.  She was an independent witness.  She gave her evidence in
    a clear and forthright manner.  She acknowledged the errors in her evidence but
    was unshaken on cross-examination on the essence of what she observed on the
    day in question.

[16]

The
    trial judge concluded his assessment of Ms. Eges evidence by saying:

In my view, she withstood a lengthy and detailed
    cross-examination in which she acknowledged errors on some details, but she
    remains sure and unshaken on the essence of what she saw; Mr. Phans two hands
    placed under [Ms. D.A.R.s] clothing on her breasts and moved in a circular
    motion or massaging manner for four to five seconds.

[17]

The
    trial judge then found that he was satisfied beyond a reasonable doubt that what
    happened in Ms. D.A.R.s room on June 13, 2009, was as Ms. Ege described it.
    He therefore found Mr. Phan guilty of sexual assault and sentenced him to eight
    months in jail plus two years probation.

THE GROUNDS OF APPEAL

[18]

The
    issues Mr. Phan raises on appeal centre on the manner in which the trial judge
    dealt with the evidence and the credibility of Mr. Phan and Ms. Ege.  He advances
    two arguments:

1.

The
    trial judge erred in his articulation and application of the second step in the
W. (D.)
analysis, and

2.

The
    trial judge erred by subjecting the evidence of Mr. Phan and Ms. Ege to unequal
    scrutiny.

ANALYSIS

(1)

Did the trial judge err in his
W. (D.)
analysis?

The Legal Principles

[19]

In cases like this, involving conflicting assertions and denials of conduct,
    the trial judges reasons must demonstrate an understanding of the relationship
    between reasonable doubt and credibility and the application of this
    understanding to his or her analysis:
W. (D.)
at p. 758;
R. v. C.L.Y.
, 2008 SCC
    2, [2008] 1 S.C.R. 5, at paras. 7, 9;
R. v. R.E.M.
, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 46; and
R. v. J.H.S.
, 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13.

[20]

The
W. (D.)
test sets out the
    relationship between credibility and reasonable doubt as follows, at p. 758:

First, if you believe the evidence of the accused, obviously
    you must acquit.

Second, if you do not believe the testimony of the accused but
    you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the
    accused, you must ask yourself whether, on the basis of the evidence which you
    do accept, you are convinced beyond a reasonable doubt by that evidence of the
    guilt of the accused.

[21]

The essence of the test is that the prosecution carries the burden
    of proof

a burden that
    requires proof beyond a reasonable doubt of each essential element of the
    offence.  Of particular significance to this case, the prosecution has not met
    its burden just because the accuseds explanation is not believed:
J.H.S.
,
at para. 13.

Application of the
W. (D.)

Principles

[22]

Counsel
    for Mr. Phan submits that the trial judges
W. (D.)
analysis is
    flawed in both the articulation of the test and in its application. First, he argues
    that the trial judge incorrectly equated the second step of
W. (D.)
with being unable to decide whom to believe.  Specifically, counsel points to
    the trial judges explanation of the test, in which he said, [i]n other words,
    if after a careful analysis of all the evidence I am unable to decide whom to
    believe, an acquittal is the proper result.  Mr. Phan points out that the
    second branch of
W. (D.)
, intended to leave room for the possibility
    that the accuseds evidence could have raised a reasonable doubt even if it was
    rejected, was not captured in the trial judges expression of the test.

[23]

Second,
    counsel for Mr. Phan submits that this error is reflected in the trial judges
    misapplication of the test.  Under the second branch of
W. (D.)
,
    the trial judge was required to examine whether, despite having rejected Mr.
    Phans testimony, his evidence nonetheless raised a reasonable doubt about his
    guilt. The argument is that the trial judge, by considering whether he had a
    reasonable doubt that what [Mr. Phan] says may be true, held Mr. Phan to a
    higher standard.  This standard required Mr. Phan to convince the trial judge
    that there was at least a possibility that his evidence was truthful as opposed
    to merely raising a reasonable doubt about his guilt.

[24]

I
    agree with Mr. Phan that the trial judges articulation of the second part of
    the
W. (D.)
test is inaccurate. However, as has often been stated,
    the import of the
W. (D.)
analysis does not lie in the expression
    of the formula but in the application of its principles:
R. v. S. (W.D.)
,
    [1994] 3 S.C.R. 521, at p. 533.
The critical question is
    whether the reasons, viewed as a whole, demonstrate the trial judges grasp of
    the substance of the relationship between reasonable doubt and the assessment
    of credibility:
R.E.M.
,
at para. 46.

[25]

In
    my view, despite the trial judges inaccurate paraphrasing of the test, the
    reasons demonstrate that he properly applied the second step in
W. (D.).
The trial judge examined whether, despite having rejected Mr. Phans testimony,
    his evidence nonetheless raised a reasonable doubt about his guilt. The only
    exculpatory evidence was Mr. Phans innocent explanation for touching Ms.
    D.A.R.  Apart from this explanation, there was nothing in Mr. Phans evidence
    that could have raised a reasonable doubt about his guilt. The trial judges
    statement is merely a reflection of this reality: if there was no chance that
    Mr. Phans explanation was true, his evidence was not capable of raising a
    reasonable doubt. I therefore interpret the trial judgments statement that he
    did not have a reasonable doubt that what [Mr. Phan] says may be true as correctly
    capturing the essence of the second branch of
W. (D.)
in the
    context of this case.

[26]

After
    rejecting Mr. Phans evidence and finding he was not left in reasonable doubt by
    it, the trial judge considered, as he was required to, whether he was convinced
    beyond a reasonable doubt of Mr. Phans guilt on the basis of the evidence he
    did accept.

[27]

I
    find nothing in the reasons that suggests that the trial judge erred by
    shifting the burden to Mr. Phan or holding him to a higher standard of proof. Read
    as a whole, the trial judges reasons do not indicate that he was engaging in a
    credibility contest between Mr. Phan and Ms. Ege.

[28]

I
    would therefore not give effect to this ground of appeal.

(2)

Did the trial judge err by applying an uneven level of scrutiny?

The Legal Principles

[29]

Counsel
    for Mr. Phan submits that the trial judge applied an unforgiving level of
    scrutiny to Mr. Phans testimony but brushed aside as inconsequential the many
    serious difficulties apparent in Ms. Eges testimony.

[30]

Subjecting
    the evidence of the defence to a higher or stricter level of scrutiny than the
    evidence of the Crown is an error of law:
R. v. Owen
(2001), 150 O.A.C.
    378 (C.A.), at para.
3;
R. v. Minuskin
(2003), 68
    O.R. (3d) 577 (C.A.), at paras.
18, 33; and
R. v. H.C.
, 2009
    ONCA 56, 244 O.A.C. 288, at para. 62.

[31]

In
    the event of such an error, the deference normally owed to the trial judges
    credibility assessment is generally displaced. This court, in
Owen
, expressed
    this in the following passage, at para. 3:

While an appellate court must defer to a trial judges
    assessment of credibility, intervention is appropriate where a trial judges reasons
    reflect legal error in the method used to assess credibility.  In
    particular, this court has held that the application of a stricter standard of
    scrutiny to the evidence of an accused than that used to assess the evidence of
    Crown witnesses amounts to legal error justifying appellate intervention.

[32]

In
R. v. Howe
, (2005), 192 C.C.C. (3d) 480 (C.A.), Doherty J.A. set out
    the definitive and oft-quoted standard to be surmounted by an appellant who
    argues that the trial judge applied a higher standard of scrutiny to the
    defence evidence than to the Crown evidence. He stated as follows, at paras.
    58-59:

Counsel  contends that the trial judge applied a higher
    standard of scrutiny in his assessment of the appellant's evidence and
    credibility than he did when considering the evidence and credibility of [the
    complainant].

This argument or some variation on it is common on appeals from
    conviction in judge alone trials where the evidence pits the word of the
    complainant against the denial of the accused and the result turns on the trial
    judge's credibility assessments. This is a difficult argument to make
    successfully. It is not enough to show that a different trial judge could have
    reached a different credibility assessment, or that the trial judge failed to
    say something that he could have said in assessing the respective credibility
    of the complainant and the accused, or that he failed to expressly set out
    legal principles relevant to that credibility assessment. To succeed in this
    kind of argument, the appellant must point to something in the reasons of the
    trial judge or perhaps elsewhere in the record that make it clear that the
    trial judge had applied different standards in assessing the evidence of the
    appellant and the complainant. [Emphasis added.]

[33]

In the recent decision in
R. v. Aird
,
    2013 ONCA 447, 307 O.A.C. 183, at para. 39, this court reinforced the
    difficulty of meeting this standard:

The different standards of scrutiny argument is a difficult
    argument to succeed on in an appellate court.  It is difficult for two
    related reasons: credibility findings are the province of the trial judge and
    attract a very high degree of deference on appeal; and appellate courts
    invariably view this argument with skepticism, seeing it as a veiled invitation
    to reassess the trial judges credibility determinations.

[34]

Therefore, f
or Mr. Phan to succeed on this ground of appeal, he
    must be able to identify something clear in the trial judges reasons or in the
    record indicating that a different standard of scrutiny was applied  something
    sufficiently significant that the heavy door of deference is opened to the
    domain of the trial judge, where credibility is assessed.

[35]

The
    question is whether that rigorous test has been met here.

Application of the Uneven Scrutiny Principles

(a)

The trial judges assessment of Mr. Phans evidence and credibility

[36]

The
    trial judge set out various aspects of Mr. Phans evidence that he found
    troubling.

(i)

Mr. Phan testified that he looked for a nurse to roll down Ms. D.A.R.s
    shirt but was unable to find one

[37]

Mr.
    Phan explained his actions by stating that there were no nurses available to
    attend to Ms. D.A.R.  However, the nurses station was only 40 feet away and
    the evidence showed that there would have been several nurses at the station at
    the time of the incident.  Furthermore, in the letter Mr. Phan wrote to his
    union in an attempt to save his job, he did not mention that he had looked for
    a nurse before going to Ms. D.A.R.s assistance. The trial judge expressed
    concern that if Mr. Phan had actually looked for a nurse, one would think that he
    would have mentioned this in his letter.

[38]

In
    my view it was reasonable for the trial judge to express doubt about the
    veracity of Mr. Phans justification for his actions, in the light of the
    evidence that undermined his testimony on this point.

(ii)

Mr. Phan exaggerated his difficulties with the English language

[39]

Mr.
    Phans facility in English became relevant because he used it to attempt to
    resile from his acknowledgement in the letter that he knew it may be wrong to
    touch Ms. D.A.R.  At trial, he was cross-examined on the portion of his letter
    in which he stated, [t]hen I felt uncertain and asked myself if my help was
    right or wrong. Mr. Phan testified that this statement should not be
    attributed to him.  He claimed that a friend had written the letter for him due
    to his difficulty with English.

[40]

However,
    there was evidence that undermined Mr. Phans attempt to distance himself from
    the statement in the letter, including uncontradicted testimony that at work
    Mr. Phan had, on several occasions, acted as an English/Cambodian translator.
    It was therefore open to the trial judge to view Mr. Phans attempt to feign
    difficulty with English as adversely affecting his credibility.

(iii)

Mr. Phans claim that he was unaware that he was not allowed to touch
    Ms. D.A.R.

[41]

Mr.
    Phan testified that he did not realize that he was not permitted to touch Ms.
    D.A.R.  However, both Ms. Ege and the administrator of the facility testified
    that as a matter of policy, housekeeping staff were instructed not to touch
    patients.  A third Crown witness testified that on one occasion, after Mr. Phan
    was seen pushing Ms. D.A.R. in her wheelchair, he was told that he was not
    permitted to do so.  Furthermore, although Mr. Phan denied ever being told not
    to touch or assist patients, he admitted during cross-examination that he knew
    it would be wrong to touch Ms. D.A.R.

[42]

Mr.
    Phans claim that he was unaware that his actions were wrong was not borne out
    by the evidence, and the trial judge cannot be faulted for considering this
    when assessing the veracity of Mr. Phans version of events.

(iv)

Mr. Phans description of how he pulled down Ms. D.A.R.s shirt was
    rather exaggerated in detail compared to the simplicity of the task

[43]

In
    describing how he pulled down Ms. D.A.R.s shirt, Mr. Phan gave considerable
    detail about how tightly her shirt was rolled, how he moved his hands to unroll
    her shirt and his efforts to avoid touching her in the process.  In my view,
    the trial judge was entitled to view this evidence with suspicion for the
    reason he expressed - the overly detailed description of a relatively simple
    task.

(v)

Mr. Phans description of Ms. D.A.R.s clothing was inconsistent with
    the evidence of the other witnesses

[44]

Mr.
    Phan stated that Ms. D.A.R.s shirt was red, whereas the other witnesses
    testified that it was dark blue or black.  Mr. Phan also stated that she was
    wearing only one shirt, while the other witnesses indicated that she was
    wearing two shirts.  Mr. Phan suggests that these are rather benign
    inconsistencies: he merely overlooked a few insignificant details.

[45]

However,
    in my view, this evidence supports the trial judges adverse credibility
    finding. Mr. Phans description of how he rolled down Ms. D.A.R.s shirt and his
    efforts not to touch Ms. D.A.R. in the process were highly descriptive. His
    inability to remember the number or colour of the shirts that were the focus of
    this description casts doubt on his purported ability to remember such a high
    degree of detail about the interaction.  It was reasonable for the trial judge
    to rely on this inconsistency in concluding that Mr. Phans version of events was
    not true.

(vi)

His demeanour was evasive, unresponsive and vague

[46]

The
    trial judge was in the best position to observe Mr. Phans demeanour. The
    record shows that there were certain points, particularly when Mr. Phan was
    questioned about the letter, when he was evasive and unresponsive. The trial
    judge was entitled to make this assessment and consider it in coming to his
    conclusion that Mr. Phans description of what took place must be rejected.

[47]

Taking
    all of these factors into consideration, not in isolation but collectively, it
    was certainly open to the trial judge to reject Mr. Phans version of events.

[48]

However,
    the issue in terms of this ground of appeal is whether the trial judge applied
    a higher standard of scrutiny in his assessment of Mr. Phans evidence and
    credibility than he did when considering the evidence and credibility of Ms.
    Ege.

[49]

This
    takes me to the trial judges treatment of the various problematic aspects of
    Ms. Eges evidence upon which Mr. Phan relies.

(b)

The trial judges assessment of Ms. Eges testimony

[50]

When
    reviewing Ms. Eges evidence, the trial judge was required to deal with a
    number of inconsistencies and inaccuracies.

(i)

Ms. Ege made inconsistent statements as to which of the two closets she
    was in

[51]

Immediately
    after witnessing the alleged assault, Ms. Ege told the administrator of the
    facility that she had hidden in Ms. D.A.R.s roommates closet; however, in all
    of her subsequent statements, she said she was in Ms. D.A.R.s closet.  The
    trial judge concluded that Ms. Eges initial statement is explained by the fact
    that she was in shock at the time she gave it.  Significantly, in her
    statements to the police and in court, Ms. Ege was clear and consistent  she hid
    in Ms. D.A.R.s closet.

[52]

I
    find no error in the way in which the trial judge dealt with this
    inconsistency. The evidence clearly indicates that at the time Ms. Ege gave her
    initial statement, she felt traumatized by what she had seen, and apart from
    this statement, she consistently maintained that she secreted herself in Ms.
    D.A.R.s closet.

(ii)

Ms. Ege gave inconsistent statements on the duration of the touching

[53]

Initially,
    Ms. Ege told the administrator of the facility that Mr. Phan touched Ms. D.A.R.
    for under a minute; subsequently, at both the preliminary inquiry and at the
    trial, she stated that the touching lasted about 4-5 seconds.  The trial judge dismissed
    this time difference as a minor detail, as he was entitled to do.

(iii)

Ms. Eges evidence conflicts with the evidence of Ms. D.A.R.s mother
    about whether it would be possible to observe Ms. D.A.R.s bed from her
    roommates closet

[54]

Ms.
    D.A.R.s mother stated that, contrary to the testimony of Ms. Ege, it was not
    possible to see Ms. D.A.R.s bed from the roommates closet. In reconciling
    this conflicting evidence, the trial judge stated that Ms. D.A.R.s mother made
    this statement on the assumption that the curtain between the beds was closed.
    Mr. Phan argues that in so doing, the trial judge improperly read an assumption
    into Ms. D.A.R.s mothers statement.

[55]

In
    my view, the trial judge was correct in his interpretation of Ms. D.A.R.s
    mothers evidence.  She testified that the curtain between the beds was
    typically closed.  Immediately thereafter, Ms. D.A.R.s mother was asked about
    whether her daughters bed was visible from the roommates closet. In this context,
    the trial judges assumption is understandable, particularly given the photographic
    and other evidence indicating that the two beds were only a few feet apart.  The
    only way the view of Ms. D.A.R.s bed would be blocked is if the curtain
    between the beds was closed. Moreover, Ms. Ege testified that the curtain
    between the beds was open when Mr. Phans actions in relation to Ms. D.A.R.
    took place.

[56]

Therefore,
    I do not find fault with the trial judges reconciliation of this evidence.

(iv)

Ms. Ege failed to mention seeing the skin of Ms. D.A.R.s breasts before
    the preliminary inquiry

[57]

The
    trial judge considered this alleged inconsistency by first noting that it was
    unclear whether, before the preliminary inquiry, Ms. Ege was specifically asked
    whether she had seen the skin of Ms. D.A.R.s breasts. The trial judge also
    referred to Ms. Eges testimony that in her prior statement, when she said she
    had seen Mr. Phan touching Ms. D.A.R.s breasts, she meant that she had seen
    the skin of Ms. D.A.R.s breasts.

[58]

I
    find no fault in the trial judges treatment of this aspect of Ms. Eges
    testimony.

(v)

Ms. Ege only agreed that Mr. Phan pulled down Ms. D.A.R.s shirt when
    confronted with her testimony from the preliminary inquiry

[59]

At
    trial, Ms. Ege stated that she did not remember whether Mr. Phan pulled down Ms.
    D.A.R.s shirt before he left the room.  When reminded of her testimony at the
    preliminary inquiry in which she stated that Mr. Phan had pulled Ms. D.A.R.s
    shirt down, she agreed that Mr. Phan must have done so, because she remembered Ms.
    D.A.R.s being covered when Mr. Phan left the room.  The trial judge concluded
    that Ms. Ege had a slight memory loss on this detail and that she was not attempting
    to mislead the court.

[60]

Given
    Ms. Eges admission that she did not remember whether Mr. Phan pulled the shirt
    down and her assumption that he must have done so, in my view it was reasonable
    for the trial judge to treat this difference as benign.

(vi)

Ms. Ege said that she could see the door to the hallway from her
    position inside the closet

[61]

Defence
    counsel argued that Ms. Eges evidence that she could see the door to the hallway
    from her position inside the closet was not credible.

[62]

In
    my opinion, the trial judge rejected this argument for legitimate reasons.  Ms.
    Ege testified that she left the closet door somewhat ajar so she could see out,
    and the trial judge held that the photos demonstrated that it was possible to
    see the hallway door from the closet. In any event, the trial judge interpreted
    Ms. Ege as suggesting that she assumed Mr. Phan had entered the room from the
    hallway.

(vii)

Ms. Ege did not see or did report that Mr. Phan pulled up the sheet to
    cover Ms. D.A.R. before he left the room

[63]

Mr.
    Phan relies heavily on Ms. Eges failure to indicate that she saw him pull the
    sheet over Ms. D.A.R. when it was clear that, after the incident, Ms. D.A.R.
    was covered by a sheet.  Mr. Phan argues that this significantly undermines the
    reliability of Ms. Eges evidence that she actually observed Mr. Phans
    interaction with Ms. D.A.R.

[64]

The
    trial judge dealt with this argument by stating that Ms. Ege was numb after
    the incident occurred and that there was a gap of about half an hour between Mr.
    Phans leaving the room and a nurses coming to check on Ms. D.A.R. and finding
    a sheet over her.  While it was speculative to conclude that someone else came
    into the room to pull up the sheet in the intervening period, in my view it was
    open to the trial judge to rely on Ms. Eges emotional state as an explanation
    for why she did not notice or report Mr. Phans pulling the sheet up.

(viii)

Ms. Ege initially told the police that Mr. Phan had reached through the
    bedrails, but testified at trial that he reached over the bedrails

[65]

This
    is another discrepancy that Mr. Phan emphasizes in his uneven scrutiny
    argument.

[66]

In
    reacting to this discrepancy, the trial judge expressed the view that at the
    time of her initial statement, Ms. Ege must have been confused because she clearly
    stated that it would be difficult to reach through the bedrails. While I agree
    with Mr. Phans counsel that this explanation strikes me as somewhat weak, it must
    be considered together with the manner in which the trial judge addressed the
    other potentially problematic aspects of Ms. Eges evidence.

(ix)

When looking at the photos of the room, Ms. Ege mistook the bathroom
    door for the hall door

[67]

The
    trial judge explained this discrepancy by suggesting that Ms. Ege was confused
    or misunderstood what she was being asked.

[68]

While
    Ms. Eges inability to identify the bathroom door in the photos was an issue to
    which the trial judge could have given more attention in his reasons, this
    evidence was of little import.  That said, like the trial judges treatment of
    the bedrail evidence, it forms part of the analysis of this ground of appeal.

The trial judges overall
    assessment of Ms. Eges evidence

[69]

While
    the trial judges reasoning in relation to these last two matters is less than
    satisfactory, I do not agree with Mr. Phans submission that the trial judge
    simply glossed over problems with Ms. Eges evidence on significant issues.  In
    my view, many of the inconsistencies upon which Mr. Phan relies are not
    actually inconsistent.  When there were actual inconsistencies, none related to
    matters of significance in terms of the proof of the Crowns case.  Moreover, the
    trial judge accepted Ms. Eges explanation of those inconsistencies or
    otherwise carefully addressed them and reconciled them with the totality of her
    evidence by explaining why they did not affect his assessment of her credibility.

[70]

Furthermore,
    it is apparent why, notwithstanding certain knotty aspects of Ms. Eges testimony,
    the trial judge found her to be credible.  As he noted, she was an independent
    witness, she testified in a forthright manner, she had no motive to lie and she
    readily admitted errors in her evidence on certain details.  There was no
    indication that she was being untruthful.

[71]

In
    my view, reading his reasons as a whole, the trial judge did not apply a
    different standard of scrutiny to the evidence.  He dealt comprehensively with
    the troublesome aspects of the evidence of both Ms. Ege and Mr. Phan.  While it
    is true that he rejected much of Mr. Phans evidence and accepted Ms. Eges
    evidence despite certain inconsistencies, he did so because the problems with
    the two witnesses evidence logically led to different inferences.

[72]

The
    problems with Mr. Phans evidence went beyond a difficulty recollecting certain
    details.  The issues with his evidence all pointed to the conclusion that Mr.
    Phans innocent explanation for touching Ms. D.A.R. was simply not true.

[73]

In
    contrast, the inconsistencies in Ms. Eges evidence pointed more to reliability
    problems.  None suggested that she was attempting to mislead the court; rather,
    they could logically be attributed to issues associated with being asked to
    recall minute details about a sexual assault of a young and severely disabled
    woman.  As the trial judge recognized, it is significant that in spite of these
    difficult circumstances, Ms. Ege remained steadfast in her description of the
    central details of Mr. Phans actions in relation to Ms. D.A.R.

[74]

This
    is not a case in which the trial judge used two different measuring sticks in
    gauging the credibility of the two witnesses. While the trial judge attached
    less weight to the weaknesses in Ms. Eges evidence than the defence urged upon
    him, he was, for the reasons I have set out, entitled to do so.

[75]

The
    trial judge was in the best position to consider the evidence and make
    credibility findings based on all of the tools available to him.  In my view,
    his conclusions were not only supported by the evidence; they were arrived at fairly.

[76]

As
    I have said, the unequal scrutiny argument is a difficult one to establish.  In
    my view, it has not been established in this case.  I would therefore not give
    effect to this ground of appeal.

DISPOSITION

[77]

For
    these reasons, I would dismiss the appeal.

Released: December 24, 2013 (PR)

Gloria Epstein J.A.

I agree.  Paul Rouleau J.A.

I agree.  David Watt J.A.