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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. J.L., 2016 ONCA 221

DATE: 20160318

DOCKET: C58080

Doherty, Simmons and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.L.

Appellant

John Hale, for the appellant

Michael Fawcett, for the respondent

Heard: March 16, 2016

On appeal from the conviction entered on July 12, 2013 by Justice Gilles Renaud of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his convictions for two counts of sexual assault against the complainant J.M. He abandoned his sentence appeal.

[2] The appellant was tried by a judge on three sexual assault charges. The first incident was alleged to have occurred in mid to late June 2011, the second between the 1st and 7th of July, 2011 and the third in the early morning of July 16, 2011. The appellant was found guilty of counts 1 and 3 and count 2 was dismissed. He was also acquitted of one charge of uttering threats.

[3] The sexual assaults were alleged to have occurred in the building where J.M. and the appellant lived. The two socialized frequently and there were several incidents of consensual sexual contact.

[4] The complainant asserted that there were three incidents where she had not consented to sexual contact with the appellant. The first occurred in the appellant’s apartment before any oral or vaginal intercourse had taken place between the two. The complainant testified that, after they both had been drinking heavily, she refused to perform oral sex on the appellant, blacked out, and woke up to find his penis in her mouth. The appellant told others that she bit his penis although she did not remember doing so.

[5] Another incident took place after a celebration for the appellant’s birthday, when he entered the complainant’s apartment and had unprotected intercourse with her. She testified that she refused because he was dating another woman, B., and he forced himself on her and ejaculated inside her.

[6] The appellant’s defence was that J.M. had consented to all of the sexual activity in question, and that she falsely accused him of sexual assault because he refused to break off his relationship with B. The appellant testified that, on the first occasion, the complainant willingly engaged in oral sex, for the first time, that he was giving her pointers, and that she bit him by mistake. He testified that neither of them had consumed any alcohol on that occasion. As for the incident involving sexual intercourse, the appellant testified that this occurred after the complainant promised him a birthday present, and that, although she was upset about his relationship with B., she initiated and consented to the intercourse. He acknowledged he had been drinking alcohol on that occasion, in contravention of a conditional sentence, but said he was not drunk.

[7] The trial judge rejected the appellant’s evidence and that of the other defence witness. He found that the defence evidence did not raise a reasonable doubt. The appellant was an incredible witness. He lied in his testimony in chief about his alcohol consumption during the period in question, notwithstanding his own lawyer’s references to many alcohol-fuelled parties involving himself and the complainant, he acknowledged lying at his conditional sentence breach hearing, and he persisted in trying to distance himself from his obvious alcohol consumption. The trial judge accepted the testimony of the complainant and two other Crown witnesses, and found the appellant guilty beyond a reasonable doubt of two counts of sexual assault. He found the complainant’s evidence with respect to the remaining count too vague to satisfy the criminal standard of proof.

[8] The only issue on appeal is whether the appellant was denied a fair trial as a result of the ineffective assistance of his trial counsel. Fresh evidence was submitted, on consent of the Crown, consisting of affidavits of the appellant, his common-law spouse and his trial counsel, C.S., and transcripts of their out-of-court examinations. The record contains a number of text messages between the appellant and the complainant following the second incident, which were part of the Crown’s original disclosure.

[9] The appellant contends that there were two significant problems with the representation provided by his former counsel.

[10] First, he complains about counsel’s failure to confront the complainant with certain text messages during her cross-examination. He asserts that any reasonable trial counsel would have used the text messages to contradict the complainant with respect to aspects of her evidence, and to demonstrate that she consented to the sexual activity with the appellant on July 16, 2011, or at least to raise a reasonable doubt on the issue of consent.

[11] Second, he contends that defence counsel conducted his examination-in-chief in a brief and perfunctory manner, reflecting that counsel was ill-prepared for the trial, with little knowledge or understanding of the details of what happened from the appellant’s perspective.

[12] We do not give effect to these grounds of appeal. The appellant has failed to meet the test for establishing that his trial counsel’s performance fell outside the “wide range of reasonable professional assistance” and that there was a reasonable possibility that the result at trial would have been different but for his counsel’s alleged mistakes: see R. v. Joanisse, 1995 CanLII 3507 (ON CA), [1995] O.J. No. 2883, at paras. 71, 79-80.

[13] With respect to the text messages, the appellant’s former counsel contends that the decision not to use this evidence at trial was a deliberate tactical decision, with which the appellant agreed. In our view, while other competent counsel might have decided to use the text messages in the complainant’s cross-examination, defence counsel’s decision not to use them was not outside the “wide range of reasonable professional assistance”. The appellant also fails to meet the prejudice test. Read as a whole, there is little in the text messages that would have assisted the appellant in his defence; to the contrary, several of the text messages, including some of the exchanges the appellant suggests are exculpatory, are corroborative of the complainant’s account of both assaults, and her lack of consent. There is no reasonable probability that the result would have been different had counsel used the text messages in cross-examining the complainant.

[14] As for the argument with respect to his examination-in-chief, the appellant has not suggested what evidence he would have offered if his counsel had asked more detailed questions, that might have altered the result at his trial. The trial judge’s reasons demonstrate that he had a clear understanding of the appellant’s account of what transpired, including the relevant details, and why the appellant maintained that the incidents were consensual, which evidence he ultimately rejected.

[15] For these reasons, the conviction appeal is dismissed and the sentence appeal is dismissed as abandoned.

“Doherty J.A.”

“Janet Simmons J.A.”

“K. van Rensburg J.A.”