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), (2.1), (2.2), (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    that could identify the victim or a witness shall not be published in any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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)  any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. Slatter, 2018 ONCA 962

DATE: 20181129

DOCKET: C60596

Watt, van Rensburg and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sherilee Slatter

Appellant

Dan Stein and Andrew Menchynski, for the appellant

Gillian Roberts, for the respondent

Heard: June 11, 2018

On appeal from the conviction entered on December 12,
    2014 by Justice Wolfram Tausendfreund of the Superior Court of Justice, sitting
    without a jury.

Fairburn
    J.A.:

I.       OVERVIEW

[1]

P.J. was the appellants foster child in 2005. S.L. was the appellants
    parents foster child in 2008. Following a judge alone trial, the appellant was
    convicted of sexual assault and sexual exploitation in relation to P.J. and
    sexual invitation in relation to S.L. She appeals against those convictions.

[2]

The appellant raises numerous grounds of appeal. She contends that:

(a)

the trial judges involvement
    in her former husbands trial created a reasonable apprehension of bias;

(b)

the evidence of a key prosecution
    witness was improperly elicited;

(c)

the trial judge failed to
    consider the impact of lost evidence;

(d)

her trial counsel provided
    ineffective assistance; and

(e)

the trial judge failed to
    consider important evidence, gave uneven scrutiny to evidence and engaged in stereotypical
    thinking.

[3]

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

II.      BACKGROUND

[4]

The appellant and her husband, Richard Fildey, were foster parents. P.J.
    lived with them between May and October 12, 2005. During most of that time,
    P.J. was fifteen years of age. After P.J. had left the appellants home, he
    told people that he had consumed alcohol and engaged in sexual intercourse with
    the appellant on multiple occasions.

[5]

After word about the sexual relationship between P.J. and the appellant
    started to seep out, the appellant gave a statement. Although the video recording
    of that statement was lost by the time of trial, the audio had been preserved
    and a transcript was available.

[6]

The appellant told the police that she was aware that P.J. had been
    telling people that they had been sleeping together, but that she had
    actually been raped by P.J. on three occasions while he was living in her home
    and her husband was at work. The appellant said that P.J. was stronger than she
    was and that she could not fight him off. She described how he would pin her
    down, penetrate her, and render her incapable of escape. She spoke of bruising
    that she incurred as a result of the alleged assaults. While she acknowledged
    that P.J. was a small teenager, about 100 pounds, she said that he was
    strong.  The appellant weighed close to 300 pounds at the time.

[7]

Three days following the appellants interview, the police interviewed
    P.J. He described the sexual intercourse as consensual. There is no dispute
    that there were two legal bars to consent in this case: (a) P.J. was fifteen
    years of age at the time that most of the conduct took place; and (b) the
    appellant stood in a position of trust toward P.J. Accordingly, there is no
    dispute that if P.J. and the appellant had sexual intercourse, and he did not
    sexually assault her, that she was guilty of sexual assault and sexual exploitation.
    No charges were laid in 2005 and the investigation was closed.

[8]

By 2008, the appellant had separated from her husband, Richard Fildey,
    after which she moved into her parents home on a part-time basis. Fifteen-year-old
    S.L. was living with the appellants parents at that time. S.L. testified that
    the appellant invited S.L. into her bedroom one day, gave her alcohol and
    encouraged her to take off her pants and masturbate. S.L. testified that the
    appellant encouraged her to use a pink dildo. S.L. complied. The appellant
    masturbated beside S.L. on the bed. Following the masturbation, the appellant
    pulled a book out from under her bed and had S.L. sign a blood oath saying
    that they would never speak about the event.

[9]

The appellants boyfriend, Christopher Lozano, lived in California. He was
    watching S.L. and the appellant on his computer from that location. He
    testified that there was a camera on the appellants computer in her room. It
    was capable of sending a real-time image to his computer.

[10]

Although
    S.L. shared this experience with a few people over time, she did not tell the
    police until 2012. Around that same time, the police again interviewed P.J. Charges
    were then laid.

III.     ANALYSIS

[11]

I
    will first address the claim relating to a reasonable apprehension of bias. I
    will then consider the appellants suggestion that Christopher Lozanos
    evidence was improperly elicited, after which I will examine the appellants
    position respecting the lost evidence. As those issues overlap with the
    ineffective assistance of counsel claim, I will next deal with that claim. I
    will conclude by considering the alleged errors in the trial judges reasoning
    process.

(a) The Reasonable Apprehension of
    Bias Claim: There was No Reason for the Trial Judge to Recuse Himself

(i)    Overview

[12]

The
    trial judge had previously presided over a trial involving the appellants
    former husband. Fildey had been convicted in that judge alone trial of sexually
    assaulting a former foster child of the couple. The appellant played no part in
    her ex-husbands trial. Fildey had testified and denied the offence. In finding
    him guilty, the trial judge had rejected Fildeys evidence, finding it
    incredible.

[13]

The
    appellant maintains that the trial judge should not have presided over her
    trial because there was a reasonable apprehension of bias arising from the fact
    that: (a) Fildeys trial had raised similar factual and legal issues to those
    raised against the appellant; and (b) the trial judge was required to consider
    Fildeys credibility in the appellants trial. I disagree.

[14]

Judicial
    impartiality lies at the core of our justice system. There is a strong
    presumption in favour of impartiality, one that is not easily displaced:
Yukon
    Francophone School Board, Education Area #23 v. Yukon (Attorney General),
2015 SCC 25, [2015] 2 S.C.R. 282, at para. 25. See also:
R. v. Nero
,
    2016 ONCA 160, 334 C.C.C. (3d) 148,

at para. 30;
Committee for
    Justice and Liberty v. Canada (National Energy Board),
[1978] 1 S.C.R. 369,

at p. 395. To rebut that presumption and show a reasonable apprehension of
    bias, the moving party has a high burden of proving the claim:
R. v. S.(R.D.)
,
    [1997] 3 S.C.R. 484,

at

para. 114;
Yukon,
at para.
    26. Substantial grounds are required to displace the presumption of
    impartiality:
S.(R.D.),
at para. 112;
Nero,
at para. 30.

[15]

To
    establish a reasonable apprehension of bias, the moving party must demonstrate
    that it is a reasonable claim, one that would be held by reasonable and
    right-minded persons applying themselves to the question and obtaining the
    required information about it:
Nero,
at para. 29. The question is,
    what would an informed person, viewing the matter realistically and
    practically  and having thought the matter through  conclude:
Committee
    for Justice and Liberty,
at p. 394;
R. v. Dowholis,
2016 ONCA
    801, 133 O.R. (3d) 1, at paras. 18  23.

(ii)    The Fact of Having Presided Over Fildeys
    Trial

[16]

The
    presumption of impartiality prevails in this case. The fact that the trial judge
    had previously presided over Fildeys trial did not, in and of itself, deprive
    him of the ability to preside over the appellants trial. There were no
    allegations made against the appellant in the former trial and she did not
    testify. The trial judge had never been called upon to adjudicate on her role
    in any alleged misconduct. Nor had the trial judge been previously called upon
    to consider the appellants conduct or her credibility or reliability as a
    witness.

[17]

Importantly,
    no one suggested that the trial judge could not preside simply because he had
    presided at the earlier trial. Defence counsel stated he was content to have
    the trial judge hear the case.

[18]

From
    the outset, the issue was only whether the appellants former husband would
    testify at the appellants trial. If so, the trial judge self-identified that
    there may be a problem with him presiding because he had previously opined on
    Fildeys credibility. That was the nub of the issue and the one that both
    parties and the trial judge focused on from the outset. The fact that trial
    counsel did not ask the trial judge to recuse himself simply on the basis that
    he had presided over Fildeys trial belies the claim of an appearance of bias:
R.
    v. Curragh Inc.,
[1997] 1 S.C.R. 537, at para. 11. I would not accede to
    that submission now made on appeal.

(iii)   The Trial Judge Did Not Consider Fildeys
    Credibility

[19]

I
    will now consider the appellants second submission, that there was an
    appearance of bias arising from the fact that, even though Fildey did not
    testify, the trial judge was still called upon to assess his credibility.

[20]

When
    discussing the ineffective assistance of counsel claim, I will address the circumstances
    surrounding my conclusion that Fildey was hostile to the appellant by the time
    of trial and would not have made a good defence witness. For present purposes, what
    is important is that Fildey never took the stand at the appellants trial.

[21]

Even
    so, the Crown agreed to the admission of a hearsay statement made by Fildey to
    the police in 2005, shortly after the appellant had spoken to the police and
    told them that P.J. had sexually assaulted her. Although Fildeys audio statement
    was missing by the time of trial, the police officer who took that statement
    was able to recall what Fildey had said. On the agreement of Crown and defence
    counsel, the following hearsay statement was admitted for the truth of its
    contents. The officer who took the statement testified that Fildey had told him
    that:

(a)     he had
    noticed bruises on his wifes arms;

(b)     P.J.
    was a strong little bugger or something like that; and

(c)     he
    learned about the allegations from his wife around the dates of October 24, 23
    for the first time.

[22]

The
    police officer confirmed in cross-examination that he had no recollection of Fildey
    saying that P.J. had told him about the sexual contact between P.J. and the
    appellant.

[23]

The
    appellant maintains that, even though Fildey did not testify, the admission of
    his hearsay statement required the trial judge to assess his credibility. She
    says that Fildeys credibility was in issue because there was a crucial
    conflict between Fildey and P.J.s evidence.

[24]

The
    appellant contrasts Fildeys hearsay statement, about being told about the
    sexual conduct by his wife, with P.J.s testimony that he told Fildey. The
    appellant argues that the two versions of evidence on that subject cannot
    co-exist. She says that either Fildey or P.J. were lying about who told Fildey and
    that this required the trial judge to reconcile the credibility issue,
    heightening the concern over the purported, reasonable apprehension of bias.

[25]

I
    reject this submission for three reasons.

[26]

First,
    I do not agree that Fildeys hearsay statement and P.J.s evidence cannot co-exist.
    Fildey may well have first been told by the appellant about the sexual conduct
    with P.J. and later told about the events by P.J. The fact that the police
    officer who testified about Fildeys statement had no recollection of Fildey saying
    that P.J. told him about the sexual conduct, does not mean that P.J. did not
    tell him. It only means that Fildey did not mention that to the police officer.
    Accordingly, there is nothing inherently inconsistent between Fildeys
    statement and P.J.s evidence. As such, there was no credibility issue to
    resolve.

[27]

Second,
    although initially described as a hearsay statement admitted for the truth of
    its contents, the parties and trial judge ultimately treated Fildeys statement
    as if it were an agreed statement of fact. For instance, in referring to the appellants
    bruising in his closing submissions, defence counsel said that it was admitted
    by the Crown so that Your Honour doesnt have to do any weighing. The trial
    judge responded, thats right.

[28]

Finally,
    the parties did not ask the trial judge to assess Fildeys credibility. Nor did
    he. The reasons for judgment are silent on any such credibility assessment.

[29]

There
    was no apprehension of bias created by the trial judge presiding over the trial
    or by him considering Fildeys hearsay statement.

(b) Treatment of Christopher Lozanos Evidence

(i)    Overview

[30]

The
    appellant was originally charged with three offences in relation to the S.L.
    incident: (a) sexual invitation; (b) conspiracy to commit sexual assault; and
    (c) distribute child pornography. The sexual invitation count involved the
    suggestion that the appellant encouraged S.L. to remove her clothing and
    masturbate on the appellants bed. The conspiracy allegation involved the
    suggestion that the appellant came to an agreement with Christopher Lozano, who
    resided in California at the time, about what was to take place with S.L. The
    distribution of child pornography charge related to the allegation that the
    offence was caught on camera and Lozano watched on his computer as it was
    occurring. On the basis of Lozanos evidence, the appellant was acquitted on
    the conspiracy and distribution of child pornography counts.

[31]

Lozano
    testified at the appellants trial by way of video link. He was in California
    at the time. His evidence was confusing and contradictory at best. The
    appellant challenges Lozanos evidence on two bases: (a) the Crown did not
    follow the correct procedure in attempting to refresh Lozanos memory; and (b) the
    trial judge and Crowns comments about the existence and effect of Lozanos
    induced statement to the police created unfairness.

[32]

I
    do not agree that any unfairness arose from how Lozano was examined or treated
    during his testimony.

(ii)    Background Facts

[33]

In
    order to understand Lozanos evidence, it is first helpful to briefly review
    S.L.s evidence. She testified that the appellant invited her into the
    appellants bedroom and gave her a number of vodka drinks over a short period
    of time. The appellant spoke with her boyfriend, Chris, on the phone. According
    to S.L., the appellant then used a webcam to make a connection with Chris who was
    in California at that time.

[34]

The
    appellant removed her pants and asked S.L. to do the same. The appellant then
    asked S.L. to masturbate using a pink dildo. S.L. complied. According to S.L.,
    she and the appellant masturbated side-by-side on the appellants bed. S.L.
    said that she could see a shadow of the appellants boyfriend on the computer
    at the end of the bed. According to S.L., she could see that he was
    masturbating at the same time that they were.

[35]

At
    the time of trial, Lozano was on parole for an unrelated matter involving having
    touched a child under 14 years of age for a sexual purpose. He testified that
    he knew S.L. because he had met her shortly after the offence, when he visited
    the appellant at her home in Ontario. S.L. testified that she had met Chris
    when he visited at the appellants parents home a few weeks after the webcam
    encounter.

[36]

During
    his examination-in-chief, Lozano acknowledged that he saw S.L. masturbating on
    the appellants bed, but he was hazy on many matters, including: whether he had
    seen S.L. and the appellant drinking alcohol on the appellants bed; the layout
    of the appellants room; and whether the appellant and S.L. were masturbating
    on the bed at the same time.

[37]

The
    trial Crown sought to refresh Lozanos memory with the use of his police
    statement and preliminary inquiry evidence. He does not appear to have had the
    transcripts in front of him, so the trial Crown read out the passages she
    wished to bring to his attention. Although Lozanos memory improved somewhat
    with the use of those passages, he maintained that he was still experiencing difficulty
    remembering the details surrounding the event.

[38]

Lozano
    eventually expressed how nervous and stressed out he was, explaining that
    he was not trying to be difficult. The Crown asked to address the court in
    Lozanos absence. Before muting the microphone, Lozano requested that the Crown
    explain what had earlier been discussed out of court.  That request was
    denied.  Lozano then requested permission to ask a question. The trial judge
    granted that request, after which Lozano expressed his concern that you guys
    are going to turn on me and come and have me arrested and charged for all
    this.

[39]

The
    trial Crown then asked permission to assist the court by explaining. She said
    that Lozano had provided an induced statement, meaning that if he told the
    truth he would not be prosecuted. Lozano expressed concern that the agreement
    was not 100 percent ironclad, after which the trial judge said:

It is now on the record that essentially there was an agreement
    entered into between you on the one side and the Office of the Crown Attorney
    [that] in return for your testimony the Office of the Crown Attorney has agreed
    not to proceed with any criminal charges against you based on your evidence.
    Thats on the record here.  And I can tell you that thats likely as good as
    gold.

[40]

Lozanos
    memory problems continued. Accordingly, Crown counsel again asked to address
    the court in Lozanos absence. The Crown said that she wished to proceed with
    an application under s. 9(2) of the
Canada Evidence Act
, R.S.C. 1985,
    c. C-5

to demonstrate the witness adversity. As the Crown would
    need to play Lozanos 50-minute video statement, the logistics would have to be
    worked out and an adjournment of Lozanos evidence was inevitable because there
    was not sufficient time to coordinate the matter that day.

[41]

Defence
    counsel acknowledged that the Crown had been attempting to refresh Lozanos
    memory and that, if Lozano had been present in the courtroom, the Crown
    probably would have proceeded earlier with the s. 9(2) application. The trial
    judge proposed that he speak to Lozano and give him a roadmap of what is
    likely to happen. Both counsel agreed with the trial judges proposal.

[42]

When
    Lozano was linked back into the courtroom, the trial judge explained to him that
    there may be good and valid reasons for the apparent difference between Lozanos
    police statement and his evidence at trial. It may have arisen from his loss of
    recollection or from a concern over the possible adverse impact of his
    evidence on his future. The trial judge reinforced that the witness could take
    to the bank the agreement with the Crown not to prosecute him for anything
    he said in court and that there would be potential repercussions here if the
    Crown Attorney were to disregard or ignore that undertaking given in good
    faith.

[43]

The
    trial judge went on to explain the procedure that applies when a witness gives
    evidence that is inconsistent with his earlier statements, including that the
    Crown might play his video statement and that he could be found adverse and
    cross-examined by the Crown. If that procedure were to be invoked, Lozano would
    have to return to complete his evidence on another day.

[44]

The
    Crown then continued her examination and Lozano testified to the events
    involving S.L., including that: the appellant had told him on the phone that he
    would see two girls making out; he saw S.L. masturbating on the bed; he could
    not recall where the appellant was during that time; he thought that S.L. and
    the appellant were lying next to each other on the bed masturbating; and that
    it all came to an end when the appellant shut the camera off.

[45]

During
    cross-examination, Lozano resiled from a good deal of his evidence in-chief. He
    also provided evidence that was in direct conflict with S.L.s version of
    events. For instance, he said: he did not have a webcam and so there was no way
    for anyone to see what he was doing; he did not see a dildo being used; he
    could not be certain that he saw S.L. masturbating because of the position of
    the webcam that did not capture the face of the person he saw; and he only saw
    one person masturbating.

[46]

In
    the end, Lozanos evidence left the trial judge with a reasonable doubt about the
    conspiracy and distribution of child pornography counts. He was acquitted on
    those counts.

(iii)   Lozanos Memory was Refreshed Using a Fair
    Procedure

[47]

The
    appellant claims that the trial judge erred by permitting Lozanos memory to be
    refreshed in the manner pursued by the trial Crown. Specifically, the appellant
    objects to the Crown having: (a) failed to ask Lozano if he wanted some assistance
    with recalling the events; (b) read out passages from Lozanos prior statement
    and preliminary inquiry evidence; and (c) failed to proceed to a s. 9(2) application.
    Although I agree that, as acknowledged by the respondent, the steps taken to
    refresh Lozanos memory did not follow a textbook approach, I disagree that any
    unfairness resulted from the procedure followed. That procedure made sense in
    the circumstances of this case.

[48]

Before
    using the prior statement and preliminary inquiry testimony to refresh Lozanos
    memory, counsel should have elicited from him that he thought those documents
    would assist him in reviving his memory. Nothing turns, though, on the fact
    that the Crown did not first elicit Lozanos view on that subject.

[49]

Lozano
    had clearly and unequivocally expressed his failure to remember many of the
    details involving the S.L. incident. His evidence was riddled with comments
    like: I dont remember, I dont remember exactly, I dont recall, I
    guess. He later expressed his frustration and said that he was trying his best
    to remember. The documents used to refresh his memory, a prior police statement
    and prior evidence, are standard tools used to refresh memory. In these
    circumstances, there can be little doubt that had Lozano been asked whether he
    wanted some assistance in refreshing his memory, he would have accepted the
    offer and it could have been done.

[50]

The
    appellant says that Lozanos prior statement and evidence could not have been
    used for purposes of past recollection recorded or otherwise because they
    lacked a contemporaneous quality.

[51]

With
    respect, there is no suggestion that the evidence elicited from Lozano was past
    recollection recorded. Lozanos attention was taken to his prior statements by the
    Crown and the relevant procedure was explained to him by the trial judge. Ultimately
    Lozano provided his present recollection of the material events in examination-in-chief.
    The prior statements were not made exhibits at trial or otherwise admitted into
    evidence, and were not relied upon for the truth of their contents by the trial
    judge.

[52]

Where
    a witness professes a genuine absence of memory at the time of testifying, but
    can recall giving an earlier truthful statement, the earlier statement may be
    admitted as an exception to the hearsay rule provided certain conditions are
    met:
R. v. Fliss
,

2002 SCC 16, [2002] 1 S.C.R. 535, at para.
    63. Those conditions, among them the need for the prior statement to have been
    made within a reasonable time of the event that is documented in the statement,
    exist because the witness no longer has a recollection that can be scrutinized
    in cross-examination.

[53]

There
    is no temporal consideration associated with the statement when seeking to use
    a prior statement to refresh a witness memory or proceed with an application
    under s. 9(2) of the
Canada Evidence Act
:
Fliss,
at para. 45;
R. v. Coffin
(1956), 114 C.C.C. 1 (S.C.C.) at p. 22;
R. v. Taylor
,
    2015 ONCA 448, 325 C.C.C. (3d) 413, at paras. 43  51.  Where the witness then
    testifies to a present recollection of the material events, the witness has
    provided evidence in the normal course, and that evidence can be appropriately
    scrutinized through cross-examination.  That is what occurred here, and Lozano
    did indeed resile from several statements made in examination-in-chief.
    Acquittals followed.

[54]

Accordingly,
    the fact that Lozano was not first asked whether he wanted assistance in
    refreshing his memory, is neither here nor there. If he did not want assistance
    by having his memory refreshed, the matter would have moved to a cross-examination
    under s. 9(2) as earlier requested by the Crown. Either way, Lozano would have
    had his prior statement and evidence put to him.

[55]

The
    appellant also claims that he suffered prejudice when the trial Crown read out
    the passages from his prior statement and evidence. Again, while the chosen
    methodology to refresh memory did not follow a textbook approach, it was a fair
    and practical approach, particularly in light of the fact that Lozano was a
    hesitant, difficult witness, testifying by video link from California.

[56]

Indeed,
    the fair manner of proceeding is clear from defence counsels observations on
    the record. While he objected to certain aspects of the Crowns approach,
    including the accuracy of the transcript from the police interview, defence
    counsel said that he had no issue with how the trial Crown was proceeding to
    refresh Lozanos memory. Although a document used to refresh a witness memory
    should be read silently by the witness, so that the trier of fact is not privy
    to its contents, that was not possible in this case because Lozano does not
    appear to have had the documents before him in California.

[57]

Given
    that this was a judge alone trial, the most efficient way to proceed was the
    one chosen by Crown counsel and the one that seemed sensible to the defence. As
    the Supreme Court has emphasized, trial judges should use their case management
    powers to minimize delay and implement more efficient procedures:
R. v.
    Cody
, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 36  39.  The trial
    judge here did so.

[58]

In
    addition, as evidenced by the reasons for judgment, the trial judge was not
    inappropriately swayed by the procedure used to refresh Lozanos memory.
    Indeed, given the success that defence counsel achieved in cross-examining
    Lozano, having him resile from the core elements of what he had testified to
    in-chief, the trial judge acquitted the appellant on two of the three S.L.
    counts. The only count on which the appellant was convicted arose from S.L.s
    evidence and not from anything that Lozano said.

[59]

In
    light of the logistics involved, the consent of counsel, the hesitance of the
    witness, and the fact that this was a judge alone trial, I see no prejudice resulting
    from the failure to follow the proper procedure for refreshing Lozanos memory.
    The trial judge managed this issue in a sensible way. No unfairness resulted.

(iv)   The Comments About the Induced Statement

[60]

The
    appellant maintains that the trial judge erred by: (a) allowing the Crown to
    effectively give evidence about the agreement that had been made between the
    Crown Attorney and Lozano; (b) commenting on that agreement; and (c) providing
    Lozano with a roadmap that is said to have encouraged Lozano to deliver his
    lines. I disagree.

[61]

The
    Crown provided appropriate context in the course of submissions to the trial
    judge regarding how to address Lozanos testimony. The Crown only commented
    upon the existence of the agreement because Lozano first expressed concern about
    being arrested and charged for all of this. Lozano expressed that he was
    sorry and wanted to be of more help. He had a question and the trial judge
    was prepared to hear that question and determine whether it could be answered.
    It was only at that point that Lozano said he was worried about being charged.
    The Crown then explained to the court that Lozano had given an induced
    statement and had been promised that he would not be prosecuted if he told the
    truth.

[62]

The
    appellant maintains that by saying that Lozano had promised to tell the truth
    in exchange for a promise not to prosecute him, the trial Crown inappropriately
    vouched for Lozanos story. I disagree with that suggestion.

[63]

Although
    this might have been a problematic statement if made before a jury, this was a
    judge alone trial. In challenging circumstances, with a witness testifying from
    afar and on issues that could incriminate him, the Crown was simply providing
    the trial judge with the information he needed to exercise his trial management
    powers. In order to understand how to proceed with the hesitant witness, the
    trial judge first needed to know what the problem was and the attendant risk to
    the witness. In the circumstances of this case, I see no difficulty with what
    the trial Crown said.  It was accurate on the key point. Lozano had provided an
    induced  meaning an involuntary  statement and the Crown could not use that
    evidence to incriminate him.

[64]

Although
    the Crown mistakenly told the court that the agreement was between the Crown
    and Lozano  when in fact it was between the police and Lozano  she was
    correct that Lozano had provided an induced statement.

[65]

As
    previously explained, Lozano expressed concern over whether the agreement was
    binding, to which the trial judge responded that it was likely as good as
    gold. Later the trial judge said that Lozano could likely take it to the
    bank.   The appellant now claims that the effect of the trial judges
    statement was to say to the appellant, with the force of judicial authority:
    deliver your lines and you wont be prosecuted. Dont deliver your lines and
    you will. The appellant says that the trial Crown supplied the lines. This is
    said to have prejudiced the appellants right to a fair trial. I disagree.

[66]

In
    an effort to assuage Lozanos concerns, and move the trial along, the trial
    judge simply said that nothing Lozano said could be used against him. That was
    a legally and factually correct statement. The trial judges comments simply
    acknowledged the involuntary nature of the statement and evidence.

[67]

Moreover,
    the fact of the inducement was never going to be a secret to the trial judge
    because the defence used it in cross-examining Lozano. Defence counsel
    highlighted the fact that Lozano believed that as long as he cooperated he
    would not get into trouble. In his closing submissions, defence counsel argued
    that the inducement, combined with the fact that Lozano was on parole, left
    Lozano thinking that he should cooperate with the police. In other words, the
    defence used the induced statement as a way of attempting to shake the trial
    judges confidence in Lozanos evidence. As it turned out, that strategy
    resulted in two acquittals.

(v)   Conclusion

[68]

I
    see no error, unfairness or prejudice arising from the manner in which Lozanos
    evidence was elicited.

(c) The Lost Evidence Claim

[69]

The
    appellant maintains that the trial judge erred by failing to consider the
    impact of the appellants lost 2005 videotape and Fildeys audiotape on the
    burden of proof. Although counsel raised the potential for a lost evidence application
    on the eve of trial, his request to adjourn was denied and no such application
    was brought.

[70]

In
    his closing submissions, though, counsel raised the effect of the absence of a
    video recording of the appellants statement to the police. Counsel emphasized
    that the trial judge was at a disadvantage because he did not have the ability
    to see the appellants emotional reaction to what she was telling the police
    about having been sexually assaulted by P.J. The appellant maintains that the
    trial judge did not consider the impact of that lost evidence on the result.

[71]

I
    would reject the appellants position for three reasons.

[72]

First,
    the trial judge is presumed to have understood the burden of proof and that a
    reasonable doubt could arise from the absence of evidence:
R. v. Morrissey
(1995),
    22 O.R. (3d) 514 (C.A.), at paras. 27  30. There is nothing in his reasons to
    suggest that he misunderstood this concept. There is no requirement that the
    trial judge discuss each piece of evidence on any given point:
R. v. R.E.M.
2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 32, 43  45, 64;
R. v. Doodnaught
,
    2017 ONCA 781, 358 C.C.C. (3d) 250, at paras. 80  81.

[73]

Second,
    the police officer who took the appellants statement testified and the audio
    of the interview was played in full. The appellant chose not to ask the officer
    any questions about her demeanour during the interview. That officer could have
    filled any potential gaps in the evidence that may have assisted in sorting out
    the demeanour question, yet the defence chose not to inquire. The failure to
    ask the officer those questions suggests that the appellant might not have been
    emoting during the police interview in a way that would be of assistance to her
    when assessing her version of events.

[74]

Finally,
    demeanour evidence has taken on a lesser role in recent years. It is merely one
    factor to be considered in assessing credibility and not to be given undue weight:
R. v. Rhayel,
2015 ONCA 377 at paras. 81  89. Indeed, juries are
    commonly instructed to this effect.

[75]

As
    for the lost audio from the Fildey interview, it was even more benign. As will
    be discussed shortly, Fildeys lost audio statement actually enured to the
    appellants benefit because it led to the admission of Fildeys hearsay
    statement for the truth of its contents. Given Fildeys hostility toward the
    appellant by the time of trial, the admission of that statement meant that his evidence
    got before the court in circumstances where it would not have otherwise been
    available.

[76]

The
    trial judge did not err in failing to mention the appellants lost video
    statement or Fildeys lost audio statement.

(d) Ineffective Assistance of Counsel Claim

(i)    Overview

[77]

The
    appellant claims that his trial counsel provided her with ineffective
    assistance. She says that counsels substandard performance is demonstrated in
    five distinct ways:

(a)     the
    failure to cogently object to the trial judge presiding over the trial;

(b)     the
    failure to object to how Lozanos evidence was handled;

(c)     the
    failure to bring a s. 7 lost evidence motion;

(d)     the
    failure to show how Lozanos evidence was tainted by a leading police statement;
    and

(e)     the
    failure to lead evidence relating to the size of the appellants bed.

[78]

I
    will first address the legal principles involved with an ineffective assistance
    of counsel claim and then move on to consider each of the appellants five
    criticisms of trial counsels performance.

(ii)    The Appellants Burden on an Ineffective
    Assistance Claim

[79]

The
    appellant must meet a significant threshold in attempting to show that trial
    counsel was ineffective. She must establish three things:

(a)     the
    facts on which the claim is based;

(b)     that
    the representation was actually incompetent; and

(c)     that
    the representation resulted in a miscarriage of justice, either by virtue of an
    unreliable verdict or an unfair trial.

[80]

Counsels
    conduct is to be considered in light of the circumstances operating at the time
    that decisions were made. Deference is owed to counsels performance and there
    is a strong presumption that counsels conduct fell within the wide range of
    reasonable professional assistance:
R. v. B.(G.D.),
2000 SCC 22, [2000]
    1 S.C.R. 520, at para. 27;
R. v. L.H.E.,
2018 ONCA 362, at paras. 6  7.

[81]

Where
    a miscarriage of justice is said to lie in an unreliable verdict, the appellant
    must show that there is a reasonable probability that the verdict would have
    been different had the appellant received effective assistance:
R. v.
    Cubilan,
2018 ONCA 811, at para.
8;
R. v. Archer
(2005),
    202 C.C.C. (3d) 60 (Ont. C.A.), at para.
120. Where an unfair trial is
    alleged, the appellant must show that he or she was deprived of a fair trial.

[82]

As
    a general rule, caution must be applied when it comes to allegations of
    ineffective assistance. Such claims are easily made and convictions would be
    rendered all too ephemeral if they could be set aside upon the discovery of
    some deficiency in counsels defence of an accused:
R. v. Joanisse
(1995),
    102 C.C.C. (3d) 35 (Ont. C.A.), at p. 58. It is not a time for Monday morning
    quarterbacking:
R. v. G.(D.M.),
2011 ONCA 343, at para. 107;
R. v.
    B.(G.D.),
at para. 27.

(iii)   Alleged Failure to Address Reasonable
    Apprehension of Bias

[83]

I
    have previously found that there was no reasonable apprehension of bias. Accordingly,
    trial counsel cannot have been ineffective in failing to ask the trial judge to
    recuse himself. Nor can the failure to ask for recusal have resulted in a
    miscarriage of justice.

[84]

Moreover,
    as previously discussed, the only reason to have the trial judge recuse himself
    was if Fildey were to testify. The appellant correctly observes that, from
    time-to-time, trial counsel expressed different views on whether he would be
    calling Fildey to testify.

[85]

There
    is no reason to explore the history of that matter because, as it turned out,
    Fildey did not testify because he was hostile to the defence. The best evidence
    of Fildeys hostility is found at the end of the Crowns case. It is at that
    point that trial counsel asked that the trial judge declare a mistrial because
    the defence was going to call Fildey. In a commendable exercise of trial
    management powers, the trial judge refused the mistrial and said that he would
    first hear from the witness so that he could assess any prejudice to the
    appellants fair trial interests. Fildey was brought to court, trial counsel
    met with him and then announced that he would not be calling Fildey to testify.

[86]

The
    fact that counsels position evolved with respect to Fildey is neither here nor
    there. If Fildey was not testifying, there was no basis for a recusal. Fildey
    was not testifying because he would not have helped the defence. There was
    simply no factual basis upon which to seek the trial judges recusal.

(iv)   Alleged Failure to Object to Lozanos
    Evidence

[87]

The
    appellants second suggestion, that trial counsel fell below the standard of
    reasonable professional assistance because he failed to object to the manner in
    which Lozanos evidence was elicited, cannot succeed. As before, trial counsel
    did not object because, in light of the circumstances, it made sense how the
    trial Crown proceeded to refresh Lozanos memory.

[88]

As
    well, the fact of the induced agreement was used by the defence as a strategy
    to attempt to shake the trial judges confidence in Lozanos evidence. Although
    the appellant may have rethought that strategy since the convictions were
    registered, that does not mean that the strategy reflects incompetence. To the
    contrary, it was a coherent approach and, as previously explained, one that
    appears to have contributed to two acquittals.

(v)   Alleged Failure to Bring Lost Evidence
    Application

[89]

The
    appellant says that her trial counsel was incompetent because he attempted to
    argue a
Charter
motion in his closing submissions, rather than file an
    application for
Charter
relief. She says that if he had actually
    brought a motion, the trial judge would have been in a position to consider the
    effect of the appellants lost video statement and Fildeys lost audio
    statement on the trial. Had the trial judge factored a
Charter
breach
    into account in his assessment of the evidence, the appellant says that the
    result might well have been different.

[90]

I
    disagree that counsel fell below the standard of reasonable professional
    assistance when he chose not to bring the lost evidence application. No
Charter
application was necessary. The absence of a motion did not deprive counsel
    of the ability to make the arguments he made. The fact is that the absence of
    the appellants video statement was not the critical piece of evidence that the
    appellant makes it out to be. Demeanour evidence was available both from the audio
    portion that remained, and, if asked, from the interviewing officer.  As
    explained above, demeanour evidence is merely one factor among many on which to
    assess credibility.

[91]

As
    for the lost audio statement from Fildeys interview, far from behaving
    incompetently, counsel was able to rely upon the lost statement to extract the Crowns
    consent to permit Fildeys hearsay statement to go in for the truth of its
    contents. But for counsels actions, there would have been no evidence from
    Fildey because he was hostile to the appellant by the time of trial.

(vi)   Alleged Ineffective Approach to Lozanos Leading
    Police Interview

[92]

Next,
    the appellant claims that trial counsel was ineffective by failing to elicit
    evidence regarding the leading nature of the Lozano police interview. I would
    reject that argument.

[93]

Trial
    counsel attempted to cross-examine Lozano on the fact that he simply went along
    with everything the police officer suggested because he did not wish to get in
    trouble. The fact that Lozano rejected that suggestion was beyond counsels
    control. Even so, counsel got Lozano to repeatedly acknowledge that the only
    reason he said that it was S.L. that he saw masturbating on the bed, was that
    the police had suggested that to him. This was an effective cross-examination
    and one that resulted in two acquittals.

[94]

As
    well, there is no reasonable probability that trial counsels conduct affected
    the reliability of the conviction on the remaining count involving S.L. The
    trial judge did not rely on Lozanos evidence to convict; rather, the trial
    judge believed S.L.s evidence on the point that she was asked by the appellant
    to masturbate: I have no difficulty accepting her evidence, as I have reviewed
    it.

(vii)  Alleged Failure to Elicit Evidence of the
    Appellants Bed

[95]

Finally,
    the appellant claims that trial counsel was ineffective in failing to utilize
    evidence about the size her bed at the time of the alleged incident involving
    S.L. The fresh evidence includes information about the size of the appellants
    bed at her parents home in 2008. It is said that she only had a single bed,
    the standard size of a single being about 38 inches wide.

[96]

Given
    the appellants size in 2008, she now argues that it would have been impossible
    for the masturbating to occur as S.L. described, with both S.L. and the
    appellant lying on the bed side-by-side. The appellant filed a picture of her
    lying on a single bed, showing that she takes up most of the surface. It is
    admitted the picture is of another bed, not the bed that the appellant had in
    2008.

[97]

It
    is said that the bed evidence would have contradicted S.L.s account. Indeed, the
    appellant argues that it would have been impossible for the offence to have occurred
    as described by S.L. on a single bed.

[98]

The
    respondent does not accept that the appellant had a single bed in 2008. The
    respondent asks the court to focus upon the picture in the materials of the
    appellants actual bed at the time of the S.L. incident. The respondent points
    out that a bedspread with squares on it covers the bed. The appellant was
    cross-examined for purposes of the appeal on that bedspread. She admitted that
    the squares are about five inches in width. The respondent maintains that when
    the squares are counted, the picture demonstrates that the appellants bed is
    actually about 50 inches wide.

[99]

Leaving
    to one side whether this constitutes permissible fresh evidence, I do not agree
    with the appellant that the bed evidence would have exonerated the appellant.
    To the contrary, bearing in mind the picture that is available of the
    appellants actual bed at the time, it may have served to support S.L.s
    evidence that the appellant had a double or queen size bed. The evidence is far
    from dispositive of innocence and the failure to use it does not suggest
    incompetence. Counsel had a clear and decisive strategy for how he was going to
    test S.L.s evidence. He was largely successful in that regard. There was no
    miscarriage of justice.

[100]

I would also reject
    this ground of appeal.

(e) Alleged Errors in the Reasons for Judgment

[101]

The appellant
    argues that the reasons for judgment contain three broad errors. I will review
    them in the order that the appellant addressed them in her factum.

[102]

Reasons for judgment
    fulfill specific purposes. They address why a case was decided a certain way,
    provide public accountability and permit effective appellate review:
R. v.
    Sheppard,
2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 4, 55. In
    considering the sufficiency of reasons as they relate to credibility findings,
    appellate courts must keep in mind that it is often difficult to express such
    findings. While significant inconsistencies in a witness evidence should be
    addressed, there is no requirement that trial judges address each and every
    inconsistency. Deference is owed to trial judges credibility findings unless
    they cannot be supported on a reasonable view of the evidence:
R. v.
    Burke,
[1995] 1 S.C.R. 474, at para. 7. See also:
R. v. Gagnon,
[2002]
    1 S.C.R. 621, at paras. 10  12, 19  20;
R.E.M.,
at paras. 32, 54
    55;
Doodnaught,
at paras 76  81.

[103]

First, the
    appellant claims that the trial judge failed to consider the inconsistency
    between Fildeys hearsay statement (that he learned about the sexual activity
    from the appellant) and P.J.s evidence (that he told Fildey about the
    activity). The appellant says that the trial judge had an obligation to address
    and resolve that inconsistency.

[104]

For the reasons
    previously given, I disagree that the Fildey statement and P.J. testimony
    cannot co-exist. They are not inherently inconsistent. The trial judge did not
    error in failing to reconcile what was not even an inconsistency.

[105]

Second, the
    appellant argues that the trial judge gave uneven scrutiny to P.J.s and the
    appellants evidence. Specifically, the appellant argues that the trial judge
    noted that P.J.s evidence was replete with inconsistencies, particularly
    when compared with what he had previously told others. The trial judge reviewed
    many of those inconsistencies.

[106]

The appellant argues
    that, without resolving P.J.s credibility, the trial judge went on to review
    the veracity of the appellants evidence (her 2005 statement) and provided
    numerous reasons why he concluded that she did not tell the police the truth
    about having been sexually assaulted by P.J. The trial judge expressed that he
    was troubled by a number of matters, including that: (a) the appellant did
    not take steps to protect herself by locking her bedroom door; (b) she did not
    tell her husband or seek to have P.J. removed from the house; (c) she purchased
    gifts and alcohol for P.J. in the face of him having sexually assaulted her; and
    (d) she said that she did not want P.J. charged.

[107]

The appellant
    says that a number of the trial judges reasons for rejecting her evidence,
    such as the provision of gifts and alcohol, required the trial judge to have
    accepted P.J.s evidence. Yet the trial judge did not resolve P.J.s
    credibility before doing so.

[108]

The trial judge
    was not required to specifically address every credibility issue in the trial. Further,
    the object is not to show
how
the judge arrived at his or her
    conclusion, in a "watch me think" fashion. It is rather to show
why
the judge made that decision:
R.E.M.,
at paras 17  18 (emphasis in
    original). It is clear that, despite the fact that he acknowledged the
    weaknesses in P.J.s evidence, the trial judge believed many of the things that
    P.J. said. The trial judge was not required to spell out each of those findings,
    nor was he required to spell out the findings he made in a particular order.

[109]

It is important
    to recall the context for the appellants evidence. Much of the sexual conduct
    occurred while P.J. was fifteen years of age. Not only could P.J. not consent
    to the sexual activity at that age, but the appellant stood in a position of
    trust toward him. Having acknowledged the sexual activity, the appellants only
    defence was that P.J. had raped her. Despite the inconsistencies in P.J.s
    evidence, the fact is that P.J. said that there was sexual intercourse and,
    based on the appellants evidence, that fact was indisputably true.

[110]

I do not agree
    that the trial judge gave uneven scrutiny to the evidence at trial. As this
    court has repeatedly held, this argument is one that is difficult to make
    successfully, and for good reason:
R. v. Aird
, 2013 ONCA 447, 307
    O.A.C. 183, at para. 39;
R. v. Chanmany
, 2016 ONCA 576, 338 C.C.C.
    (3d) 578, at paras. 26  28.  Credibility findings are within the province of
    the trial judge.

[111]

The trial judge
    acknowledged the frailties in P.J.s evidence, but focused in on the issue in dispute:
    did he have a reasonable doubt arising from the suggestion that P.J. sexually
    assaulted the appellant? On that point, there was little to assess in P.J.s
    evidence. He was unshaken from the core allegations, and the trial judge had
    earlier listed the frailties that, on an objective view, went to peripheral
    matters.  The appellants evidence could, of course, undermine the path to
    conviction by being believed or by leaving the trial judge with a reasonable
    doubt. Considered in its proper context, it is without surprise that the trial
    judge focused upon that evidence.

[112]

Finally, the
    appellant argues that the trial judge erroneously relied upon stereotypes about
    sexual assault victims in rejecting the appellants evidence. For instance, the
    appellants evidence was rejected on the basis that she did not lock her door
    after the first and second alleged sexual assaults, nor did she tell anyone
    about the assaults. Nor did she want P.J. charged. The appellant argues that
    every sexual assault victim is unique and experiences the crime in a different
    way. The trial judge erred by applying stereotypical thinking to the
    appellants version of events.

[113]

Although I agree
    with the appellants suggestion that stereotypes must be avoided when it comes
    to considering how sexual assault victims will respond to the crime, that
    submission again loses its force when considered in the context of this case. The
    trial judge reached his conclusion, not on the basis of stereotypes, but on the
    evidence presented at trial, its internal and external coherence, and common
    sense inferences.

[114]

The trial judge
    did not resort to stereotypes, but to the actual relationship between the
    appellant and P.J., over whom she stood in a position of trust. She was in
    control of the home where he lived. She controlled who came into the home and
    who was allowed to live there. She did not merely stay silent after the alleged
    sexual assaults on her, the evidence was that she continued to actively seek
    out P.J., and provided him with alcohol. In contrast, P.J. was a troubled
    teenager who was a third of the appellants weight.

[115]

In the somewhat
    unique circumstances of this case, the trial judges impugned comments, such as
    the appellants failure to lock her door or tell anyone about the purported
    crimes being perpetrated upon her, made sense in light of her position of trust
    as a foster parent to her alleged repeated perpetrator.

[116]

I would not
    accede to this ground of appeal.

IV.     CONCLUSION

[117]

The appellant
    received a fair trial. She received competent representation. There was no
    miscarriage of justice. The reasons for judgment do not contain the errors
    alleged.

[118]

I would dismiss
    the appeal.

Released: DW Nov 29, 2018

Fairburn J.A.
I agree. David Watt J.A.
I agree. K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2018 ONCA 964

DATE: 20181128

DOCKET: C63287

Sharpe, Paciocco and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Trung Tran

Appellant

Greg Lafontaine and Ricardo Golec, for the appellant

Thomas Lemon, for the respondent

Heard and released orally: November 23, 2018

On appeal from the conviction entered on July 16, 2015 by
    Justice Andrew J. Goodman of the Superior Court of Justice, sitting without a
    jury.

REASONS FOR DECISION

[1]

Mr. Trans principal ground of appeal relates to section 8 of the
Charter
.
    That ground of appeal rests solely on a challenge to credibility findings made
    by the trial judge.

[2]

In his
Charter

decision the trial judge chose to accept the
    testimony of Officer Reed that Mr. Tran threw his house and car keys on the
    ground when approached by the police. He did so despite the testimony of Officer
    Peckford that someone, either he or Officer Reed, took the keys from Mr. Trans
    pocket. As a result of this, the trial judge found the keys to have been
    abandoned, defeating the reasonable expectation of privacy that Mr. Tran
    required in order to sustain his section 8
Charter

challenge.

[3]

Mr. Tran is now asking us to revisit the trial judges credibility
    findings. We see no basis for interfering. In our view, the trial judge gave
    ample, cogent reasons for accepting the testimony of Officer Reed and
    discounting the evidence of Officer Peckford.

[4]

After the
Charter
ruling Mr. Tran testified. During his
    testimony he said he was directed to drop the keys. In his reasons for
    conviction the trial judge made no finding that this occurred, but did leave open
    the possibility that Mr. Tran may have been directed before he dropped the keys.
    Mr. Tran points to the inconsistency between this finding by the trial judge,
    and the
Charter

ruling where there was mention that Mr. Tran
    may have thrown the keys after police direction. However, Mr. Tran did not
    testify on the Charter
voir dire
and the evidence that led the judge in
    his reasons for decision to leave open the possibility that Mr. Tran may have
    dropped the keys after a police direction, occurred after the
Charter
ruling was made. No request was made to reopen the
Charter
ruling in
    light of this trial evidence.

[5]

We therefore deny Mr. Trans appeal from the section 8 ruling.

[6]

We see no reason to question the trial judges s. 24(2) ruling.

[7]

In our view, the uneven scrutiny ground of appeal must also be rejected.
    The trial judge gave sound reasons for crediting the police evidence he
    accepted, and the defence evidence was demonstrated in the trial judges
    reasons to be implausible and inconsistent.

[8]

Nor is there any basis for concluding that the trial judge
    misapprehended the evidence.

[9]

The appeal is dismissed.

Robert J. Sharpe J.A.

David M. Paciocco J.A.

Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tyrell, 2018 ONCA 968

DATE: 20181130

DOCKET: C63566

Doherty, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald George Tyrell

Appellant

Mark C. Halfyard, for the appellant

Sarah Shaikh and Alexia Bystrzycki, for the respondent

Heard: November 29, 2018

On appeal from the conviction entered on July 19, 2016
    and the sentence imposed on December 7, 2016 by Justice Hugh K. OConnell of
    the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

(1)

The Hearsay Issue

[1]

The trial judge acknowledged during the evidence that anything said by
    Isaacs (not a witness) to the police officer (a witness) was admissible for
    narrative purposes and not for its truth. Nothing in his reasons suggests any
    departure from that self-instruction.

(2)

The
W.D.
Issue

[2]

We are satisfied that the trial judge properly applied
W.D.
Read as a whole, the reasons demonstrate that the trial judge understood he was
    required to apply the burden of proof to the totality of the evidence. Indeed
    the trial judges consideration of the other count, on which he acquitted,
    despite rejecting the appellants evidence is a strong testament to his
    understanding of
W.D.

(3)

The Delay in Giving Reasons

[3]

In our view, any delay in giving reasons was driven primarily by efforts
    to accommodate all parties. Nothing in the circumstances would justify a
    finding that the presumption of integrity had been rebutted by the delay in
    giving reasons.

[4]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wagar, 2018 ONCA 907

DATE: 20181113

DOCKET: C63102

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Wagar

Appellant

Kevin Wagar, in person

Lorna Bolton, for the respondent

Heard and released orally: November 5, 2018

On appeal from the conviction entered on May 27, 2016 and
    the sentence imposed on August 22, 2016 by Justice Wolfram Tausendfreund of the
    Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant claims there were many errors at his guilty plea and the
    subsequent proceedings.

[2]

They can be grouped into the following general categories:

i.

the trial judge was biased;

ii.

the guilty plea was not voluntary or informed;

iii.

he was provided with ineffective assistance of counsel at trial;

iv.

there was a breach of solicitor client privilege; and

v.

the Crown did not honour the purported agreement that she would
    not read facts into the record on the day of the guilty plea.

[3]

We see no basis in the record to support any of these claims. The record
    amply supports the appellants convictions and that his guilty plea was
    voluntary, unequivocal and fully informed.

[4]

The conviction appeal is dismissed.

K. Feldman J.A.
L.B. Roberts J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zbib, 2018 ONCA 899

DATE: 20181109

DOCKET: C62442

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Mohamad Zbib

Appellant

Mohamad Zbib, in person

Amanda Ross, for the respondent

Heard: November 6, 2018

APPEAL BOOK ENDORSEMENT

[1]

On consent, the appeal is allowed, the conviction is set aside and a new
    trial is ordered. The appellant is to appear on December 10, 2018 at 1:30 p.m.
    in courtroom N at Old City Hall to set a date for trial.


COURT OF APPEAL FOR ONTARIO

CITATION: Royal Bank of Canada v. Puzzolanti, 2018 ONCA 917

DATE: 20181115

DOCKET: C65268

Watt, Miller and Nordheimer JJ.A.

BETWEEN

Royal Bank of Canada

Plaintiff (Respondent)

and

Michael Puzzolanti

Defendant (Appellant)

Domenic Saverino, for the appellant

Natalie Marconi, for the respondent

Heard and released orally: November 14, 2018

On appeal from the judgment
    of Justice Carole Brown of the Superior Court of Justice, dated April 13, 2018.

REASONS FOR
    DECISION

[1]

Mr. Puzzolanti appeals from the summary judgment granted by the motion
    judge in which he was ordered to repay to the respondent the sum of
    $337,653.67. The claim arises out of a cheque that the appellant deposited to
    his bank account with the respondent that subsequently turned out to be forged.

[2]

The core complaint by the appellant is that the motion judge erred in
    refusing to grant him an adjournment of the motion for summary judgment.

[3]

On February 23, 2018, Glustein J. set a timetable for the hearing of the
    summary judgment motion. While the appellant did not participate in this event,
    his counsel was advised of the timetable, including the date fixed for the
    hearing of the summary judgment motion, that is, April 13, 2018. Subsequently,
    counsel for the respondent served the respondents materials for the motion on
    the appellant and otherwise reminded counsel for the appellant of the motion
    date.

[4]

The day before the motion was to be heard, counsel for the appellant
    advised counsel for the respondent that he had just been retained for the
    motion and requested an adjournment. Counsel for the appellant also advised
    that he could not attend in court the next day because of other commitments.
    Counsel for the respondent refused to consent to the adjournment.

[5]

On April 13, 2018, the motion proceeded before the motion judge. Counsel
    for the appellant was not present. The motion judge was made aware of the
    appellants request for an adjournment but determined that she would proceed
    with the motion for summary judgment, which was granted.

[6]

We do not see any error in the motion judges conclusion to proceed with
    the summary judgment motion in these circumstances. The motion judges decision
    is a matter within her discretion and will not be interfered with unless the

judge has failed to take account of relevant factors
    and thus exercised her discretion unreasonably, such that the decision is
    contrary to the interests of justice:
Boaden Catering Ltd. v. Real Food for
    Real Kids Inc
., 2017 ONCA 248, at para. 17.

[7]

There is no such error here. The appellant had ample notice of the date
    that was set for the hearing of the summary judgment motion. Waiting until the
    last minute to request an adjournment is contrary to the principles surrounding
    the adjudication of summary judgment motions, including their role as a
    cheaper, faster alternative to a full trial:
Hryniak v. Mauldin
, 2014
    SCC 7, [2014] 1 S.C.R. 87, at para. 34. It is also contrary to the directive
    contained in the Consolidated Practice Direction for Civil Actions,
    Applications, Motions and Procedural Matters in the Toronto Region of the
    Superior Court of Justice that provides that no adjournments of scheduled
    motions will be granted within 2 days of the scheduled hearing date, except in
    extenuating and exceptional circumstances.

[8]

It was not contrary to the interests of justice to proceed with the
    summary judgment motion in these circumstances.  That conclusion is
    strengthened by the fact that, on a plain reading of the statement of defence
    and counterclaim, no tenable defence was offered to the respondents claim.

[9]

The appeal is dismissed.

David
    Watt J.A.

B.W.
    Miller J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ryu Electric Inc. v. Hong, 2018 ONCA 920

DATE: Draft 20181116

DOCKET: C64378

Watt, Miller and Nordheimer JJ.A.

BETWEEN

Ryu Electric Inc.

Plaintiff (Respondent)

and

Sam
    Bung Hong a.k.a Danny Hong, c.o.b. as Intaglio Design

Defendant (Appellant)

Tony N.
    Nguyen, for the appellant

James H.
    Herbert, for the respondent

Heard: November 13, 2018

On appeal from the judgment of Justice Joseph Di Luca of
    the Superior Court of Justice, dated August 29, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellant seeks to overturn the trial judges well-documented
    findings of fact and credibility. It is well-established that it is not the
    role of this court to retry cases. The appellant has failed to demonstrate any
    error of law or palpable and overriding error of fact in the trial judges
    assessment of the evidence and application of governing principles. The appeal
    is dismissed. Costs of $4,500 inclusive of disbursements and applicable taxes
    payable by the respondent to the appellant.


COURT OF APPEAL FOR ONTARIO

CITATION: Siddiqui v. Anwar, 2018 ONCA 965

DATE: 20181128

DOCKET: M49810 (C65715)

Brown J.A. (Motion Judge)

BETWEEN

Javed Siddiqui

Applicant (Appellant)

and

Tabassum Anwar

Respondent (Respondent)

Nadine Barmania, for the appellant

Daniel W. Simard, for the respondent

Heard: November 23, 2018

REASONS FOR DECISION

OVERVIEW

[1]

In this matrimonial litigation, the respondent wife, Tabassum Anwar,
    moves for an order staying the appeal of the appellant husband, Javed Siddiqui,
    until he pays her the sum of $334,076.84, plus interest, as required by the
    July 30, 2018 order of Nordheimer J.A., together with an order granting her
    leave to move before a panel to quash the appeal in the event such payment is
    not made within 30 days.

HISTORY OF THE LITIGATION

[2]

Following a five-day trial, by reasons released January 9, 2018 (2018
    ONSC 219), LeMay J. ordered Mr. Siddiqui to pay Ms. Anwar: monthly child support
    of $1,028; an equalization payment of $411,970.57; certain rent; monthly
    spousal support of $445; and, arrears of spousal support of $12,336. Ms. Anwar
    was ordered to pay Mr. Siddiqui retroactive child support of $57,876 (the
    Final Order).

[3]

By reasons released May 24, 2018, LeMay J. adjusted certain amounts in
    the Final Order, so that: (i) Mr. Siddiqui owed Ms. Anwar an equalization
    payment of $432,348.23, spousal support arrears of $10,099.01, together with net
    retroactive rents on a property of $80,518.04; and (ii) Ms. Anwar owed Mr.
    Siddiqui retroactive support of $47,876.

[4]

Mr. Siddiqui served a June 12, 2018 notice of appeal seeking to reduce
    his obligations under the Final Order and increase those of Ms. Anwar. This
    court refused to accept the notice of appeal on the basis that it was not filed
    within the time prescribed by the
Rules of Civil Procedure
.

THE ORDER OF NORDHEIMER J.A.

[5]

Mr. Siddiqui thereupon brought a motion for an extension of time to file
    his notice of appeal. Ms. Anwar opposed the motion and, in turn, moved for an
    order lifting the automatic stay of certain provisions in the Final Order.

[6]

In one of the affidavits in support of his motion, Mr.
    Siddiqui acknowledged that at trial he had submitted that he owed Ms. Anwar an equalization
    payment of $334,076. He also conceded that if he succeeded with all his
    arguments on appeal, he still would owe Ms. Anwar $218,200. He offered to
    transfer his interest in two properties jointly owned with Ms. Anwar in Qatar
    and India in partial satisfaction of his obligations under the Final Order. He
    valued those interests at $390,500. (On this motion, Ms. Anwar disputes that
    valuation, putting the value of his interest closer to $247,000.)

[7]

In that motion affidavit, Mr. Siddiqui also acknowledged
    that he had active businesses in Canada and was in the process of acquiring his
    fifth daycare operation. However, he described his Canadian businesses as
    heavily leveraged. His bottom line was set out in paras. 46-48 of his July
    23, 2018 affidavit:

I am not able to make the payment proposed by
    [Ms. Anwar] from funds in Canada. I am fully invested in my businesses, which I
    hope will stabilize and grow over the next few years. The stable businesses
    will provide economic security for my children. An order for immediate payment
    of $334,000 would be punitive and would likely result in the sale of my
    businesses.

I am able to make the payment by way of
    property transfers as proposed.

In the alternative, I propose a partial
    payment of the equalization in the amount of $100,000.00 payable 60 days from
    the order. I need about 60 days to arrange financing.

[8]

The motions came on before Nordheimer J.A. who, by order dated July 30,
    2018 (the Order), extended the time to file the notice of appeal, ordered the
    continued payment of child and spousal support, and ordered Mr. Siddiqui to pay
    Ms. Anwar the equalization amount as agreed to in the amount of $334,076.84
    within 60 days of this order  i.e. by September 30, 2018.

[9]

In his endorsement, Nordheimer J.A. explained the basis for ordering Mr.
    Siddiqui to pay the equalization payment of $334,076.84:

In terms of the cross-motion, the appellant [Mr. Siddiqui]
    accepts that even if he is successful on the appeal, he will owe the respondent
    [Ms. Anwar] $218,200 as an equalization payment. However, he also earlier
    offered to transfer properties to the respondent in which he valued his
    interest at $390,500 suggesting that he views his real liability to the
    respondent as much higher.

The respondents cross-motion sought to lift the stay to the
    extent of requiring the appellant to pay $334,076.84. In the circumstances I do
    not see any reason not to do so. There is no prejudice to the appellant from
    granting that order. Even if his appeal is entirely successful [and] the
    equalization payment is reduced below the $334,000 amount, that can be
    recovered by the appellant.

The parties have also agreed that the $334,076.84 amount will
    be paid by the appellant within 60 days.

[10]

Mr. Siddiqui did not seek to review the Order. Nor did he pay the
    amount ordered by Nordheimer J.A by September 30, 2018. To date, he has not
    made any payment against that Order. Mr. Siddiqui is in clear breach of the
    Order.

[11]

Mr. Siddiqui perfected his appeal on November 5, 2018. A hearing
    date for the appeal has not yet been assigned or sought.

ANALYSIS

[12]

In the evidence he filed on this motion, Mr. Siddiqui did not
    explain why he failed to make a partial payment against the amount ordered.
    Specifically, he did not explain why he was not able to arrange financing for
    at least a $100,000 payment, as he had represented he could do in his affidavit
    before Nordheimer J.A.

[13]

On this motion, Mr. Siddiqui submits that he should be afforded time
    to sell the joint assets in Qatar and India. To that end, while he consents to
    the stay of his appeal sought by Ms. Anwar, he does not consent to her request
    for leave to move to quash or dismiss the appeal if he does not satisfy the
    Order within 30 days. Mr. Siddiqui would consent to such relief if he was given
    a further 90 days to satisfy the Order.

[14]

Mr. Siddiqui has not filed any type of financial statement to enable
    me to assess the true state of his finances. He simply repeats  in some detail
     the position he advanced before Nordheimer J.A.: he prefers to look to the
    eventual proceeds from the sale of the joint Qatar and Indian assets to satisfy
    his admitted indebtedness to Ms. Anwar; and that would leave him free to
    develop his Canadian assets as he sees fit, without interference from the
    admitted obligations arising from the Final Order. As he deposed on this
    motion: I do not believe that it is beneficial in the long term to sell my
    business to pay Ms. Anwar. In other words, Mr. Siddiqui quite candidly states
    he prefers the interests of his Canadian businesses over his obligations to Ms.
    Anwar fixed by the Order of this court.

[15]

The absence of any financial information from Mr. Siddiqui about his
    net worth and the net value of his Canadian business assets is telling. They
    exist, but he will not disclose what they are worth. I therefore place no stock
    in his submission that he should be given a further 90 days to satisfy the
    Order. Also, I have no doubt that if the Qatar and Indian properties are not
    sold within 90 days, Mr. Siddiqui simply will ask for a further extension of
    time. As a result, I can only conclude that Mr. Siddiqui has quite deliberately
    and wilfully decided to ignore the Order. If that results in a stay of his
    appeal, he is not concerned. That will enable him to delay even further meeting
    his obligations under the Order, which I conclude is his paramount concern. In
    the meantime, he continues with a motion to change custody and access
    proceedings in the Superior Court of Justice.

[16]

In those circumstances, I conclude it is fair and just to stay Mr.
    Siddiquis appeal. The time for Ms. Anwar to respond to the perfected appeal is
    suspended as of the date of these reasons.

[17]

Based on the evidence before me, I see no reason why Ms. Anwar needs
    to wait 30 days before being able to move to quash or dismiss the appeal by
    reason of Mr. Siddiquis breach of the Order. I am satisfied, based on Mr.
    Siddiquis own evidence, that he will not pay any part of the Order within the
    next 30 days.
I find it significant that
whereas before
    Nordheimer J.A he deposed that he could seek financing to pay part of the
    Order, Mr. Siddiqui made no such offer in his present materials.

[18]

His position is that unless and until the joint foreign assets are
    sold he will not pay. The evidence offers no probability that those assets will
    be sold within 30 or 90 days. Based on the affidavit Mr. Siddiqui filed at the
    motion hearing, no binding agreement of purchase and sale exists for either
    property. At most, there is some form of email offer for the Indian asset that
    contemplates an agreement to sell will be signed around 15
th
Dec2018.

[19]

Consequently, I grant Ms. Anwar leave to move forthwith, if she so
    chooses, to quash or dismiss the appeal for non-compliance with the Order:
Dickie
    v. Dickie
2007 SCC 8, [2007] 1 S.C.R. 346;
Cosentino
    v. Cosentino
, 2017 ONCA 593, 98 R.F.L. (7th) 53, at
    paras. 8 and 11. It will be up to the panel hearing the motion to determine
    whether, in the circumstances then existing, Mr. Siddiquis appeal should be
    quashed or dismissed.

DISPOSITION

[20]

For the reasons set out above, I stay Mr. Siddiquis appeal No.
    C65715 as of the date of these reasons. I grant Ms. Anwar leave, if required,
    to move before a panel to quash or dismiss the appeal.

[21]

Ms. Anwar seeks costs of $7,500 of this motion. Mr. Siddiqui submits
    there should be no costs.

[22]

I conclude Ms. Anwar is entitled to costs. However, she failed to
    file a bill of costs. As a result, I cannot assess the reasonableness of her submitted
    figure of $7,500. The motion materials for this motion were modest. Accordingly,
    I award Ms. Anwar fair and reasonable partial indemnity costs fixed in the
    amount of $5,000, payable forthwith by Mr. Siddiqui.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Styres v. Martin, 2018 ONCA 956

DATE: 20181129

DOCKET: C64646

Strathy C.J.O., Benotto and Roberts JJ.A.

BETWEEN

Mark Styres

Appellant

and

Alison Martin and Janet Frazer, by her Estate
    Administrator, Cyril Frazer

Respondents

Gerry Smits, for the Appellant

Howard E. Staats, Q.C., for the Respondents

Heard: November 23, 2018

On appeal from the judgment of Justice Patrick J. Flynn of
    the Superior Court of Justice dated November 3, 2017.

REASONS FOR
    DECISION

[1]

The appellant appeals from the dismissal of his action claiming damages
    arising from the disposition of a house which he had transferred to the
    respondent, Alison Martin, his former common law spouse, in 2004. He asks that
    the judgment be set aside and that he be awarded damages in the amount of
    $150,000, or, in the alternative, that a new trial be ordered.

[2]

The appellant had lived in the house for 20 years. His father had given
    him the land on which he built the house.

[3]

In 1998, the appellant suffered a catastrophic brain injury as a result
    of a motor vehicle accident and became unable to work.

[4]

The appellant began a relationship with the respondent in about 2000.
    She became his caregiver and in January 2002, he signed a Power of Attorney for
    Personal Care and for Property, naming her as his attorney. On February 13,
    2004, he transferred the house to her. The respondent paid off the appellants
    $32,007 mortgage on February 13, 2004, the day of the transfer. The mortgage
    had to be paid off in order for the transfer to be registered. The parties did
    not have legal advice or assistance in preparing and registering the transfer.

[5]

On December 23, 2009, the respondent granted a mortgage on the house to
    her mother, to secure a loan to her in the amount of $200,000.

[6]

The parties separated in about 2013. The appellant requested that the respondent
    reconvey title of the house to him. She declined and shortly thereafter transferred
    the house to her mother, the defendant Janet Frazer, in satisfaction of the
    mortgage that had come due in 2012.  After her mothers death in 2015, her
    estate sold the house for $300,000.
[1]

[7]

At trial, the appellant asserted claims for damages, breach of trust,
    breach of fiduciary duty and unjust enrichment. The evidence at trial focused
    on the parties explanations for the transfer of the house to the respondent in
    2004.

[8]

The appellant alleged that he had temporarily transferred the house to the
    respondent in trust to avoid its potential seizure because of
Excise Act
charges against him for his involvement in selling unmarked cigarettes. The
    trial judge preferred the evidence of the respondent and her daughter that the
    house was a gift to her from the appellant.

[9]

In brief reasons, the trial judge rejected the appellants explanation
    for the transfer and accepted the respondents. He found that that the
    respondent was generous and kind to the appellant, gave him the proceeds of her
    caregiver cheques amounting to a couple of thousand dollars, purchased vehicles
    which he used, and helped him with child support and various bills, household
    expenses and utilities. He concluded that this was hardly predatory conduct of
    one person taking advantage of another vulnerable one. He determined that
    there was no trust regarding the house without a written instrument in accordance
    with the
Statute of Frauds
, R.S.O. 1990, c. S.19.

[10]

The
    trial judge rejected the evidence of the appellants appraisal expert
    concerning the value of the house and found that the appellant would not be entitled
    to
any
damages if successful. He awarded costs of
    $30,000 to the respondent and $15,000 to the estate of her mother.

[11]

The
    appellant submits that the trial judge erred by failing to consider or address
    the various claims for breaches of trust and fiduciary duty, and unjust
    enrichment. He submits that the trial judges reasons are deficient and
    preclude meaningful appellate review.

[12]

We
    agree. The appeal must be allowed and a new trial ordered.

[13]

This
    was a case of a disabled man, with a catastrophic brain injury and admitted
    cognitive difficulties, conveying his only significant asset to his caregiver and
    common law partner, who also held his power of attorney. He had no legal
    advice, let alone independent legal advice.

[14]

While
    the trial judge was entitled to prefer the evidence of the respondent in
    relation to the reason for the transfer and to find a gift, those findings were
    not the end of the necessary analysis. The trial judge was required to address the
    issues that arose from the appellants pleaded claims for breaches of trust and
    fiduciary duty, and unjust enrichment.

[15]

In
    dismissing the trust claims, the trial judge simply said:

Weve heard argument about a trust relationship, but there was
    no trust. Here were dealing with real property. The
Statute
    of Frauds would require a written instrument.

[16]

The
    absence of writing would, of course, be no answer to a claim of resulting trust
    nor would it have any relevance to a claim for breach of trust or breach of
    fiduciary duty.

[17]

Insufficient
    reasons that prevent meaningful appellate review constitute an error of law,
    reviewable on a correctness standard:
Maple Ridge Community Management Ltd.
    v. Peel Condominium Corporation No. 231
, 2015 ONCA 520, at para. 22. In
    our view, the deficiency of the trial judges reasons precludes meaningful
    appellate review.

[18]

Unfortunately,
    we are unable on the basis of the record before us to make the determinations
    necessary to dispose of the issues that the trial judge failed to address. A
    new trial is required.

Disposition
:

[19]

Accordingly,
    the appeal is allowed and the matter is remitted to the Superior Court of
    Justice for a new trial on all issues before a different judge.

[20]

The
    appellant abandoned the appeal against the estate of Janet Frazer and it is
    therefore dismissed.

[21]

The
    appellant is entitled to his costs of the appeal from the respondent on the
    appeal in the agreed upon amount of $6,500, inclusive of disbursements and
    taxes. The respondent estate is entitled to its costs from the appellant in the
    amount of $2,500, inclusive of disbursements and taxes.

[22]

Given
    the appellants success on appeal, we set aside the award of trial costs in the
    amount of $30,000 to the respondent. As we direct that there be a new trial, we
    decline to award the appellant his costs of the first trial.

G.R. Strathy
    C.J.O.

M.L. Benotto
    J.A.

L.B. Roberts
    J.A.

[1]

The claim against the estate was dismissed by non suit at the
    conclusion of the appellants case at trial. The appeal of that order was
    abandoned.