Jury convicting accused of sexual assault following trial where only consent in issue. Assault allegedly taking place while complainant and accused on boat with accused’s young son. Complainant testifying accused urged her to lie down with him after which he sexually assaulted her. Accused testifying complainant offered to lie down with him and initiated sexual contact. Complainant testifying she left boat hurriedly and while upset. Son available and able to testify at trial to version of events that contradicted complainant and corroborated accused. Son would have testified complainant was amiable while leaving boat. Accused instructing counsel not to call son as witness to protect best interests of son. Accused proffering evidence of son as fresh evidence on appeal. Fresh evidence admitted and appeal allowed. Son’s proposed evidence was relevant to issues of complainant’s credibility. While son’s evidence contained some inconsistencies and discrepancies was reasonably capable of belief. Decision not to call son at trial not tactical but made to protect child’s best interests. Would be contrary to ends of justice not to receive son’s evidence as only evidence other than that of accused and complainant on only live issue.
R. v. G. (P.) (Aug. 21, 2013, Ont. C.A., M. Rosenberg J.A., R.G. Juriansz J.A., and Gloria Epstein J.A., File No. CA C54825) 109 W.C.B. (2d) 7.