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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Chica, 2016 ONCA 252

DATE: 20160406

DOCKET: C57416

Laskin, Cronk and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Heli Samuel Chica

Appellant

Elmé G. Schmid and Lina Anani, for the appellant

Mabel Lai, for the respondent

Heard: March 7, 2016

On appeal from the conviction entered by Justice David P. Cole of the Ontario Court of Justice, dated March 5, 2013.

Cronk J.A.:

(1) Background

[1] After a two-day trial before a judge alone, the appellant Heli Samuel Chica was convicted of one count of sexual assault relating to his friend’s girlfriend, T.F. He was sentenced to two years’ imprisonment, plus three years’ probation. He appeals from his conviction.

[2] The appellant advances two grounds of appeal. First, he argues that his counsel’s assistance at trial was ineffective, compromising his right to make full answer and defence and leading to a miscarriage of justice. Second, he contends, for the first time on appeal, that his right to an interpreter under s. 14 of the Charter of Rights and Freedoms was breached because he is a native Spanish speaker and his trial was conducted in English, without the assistance of an interpreter.

[3] For the reasons discussed below, I would dismiss the appeal.

(2) Fresh Evidence

[4] The appellant seeks leave to file fresh evidence on appeal relating to both the ineffective assistance of counsel and s. 14 claims.

[5] In my view, it is in the interests of justice to receive the fresh evidence relating to the appellant’s ineffective assistance of counsel claim: R. v. Howell, 2015 ONCA 728; R. v. Nwagwu, 2015 ONCA 526; R. v. Qiu, 2010 ONCA 736, 268 O.A.C. 352; R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.); R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal refused, [1996] S.C.C.A. No. 347. However, for the reasons explained below, I would not admit the fresh evidence directed at whether the appellant required the assistance of an interpreter at trial.

(3) Ineffective Assistance of Counsel Claim

[6] The appellant maintains that his trial counsel’s assistance was deficient in several respects. Relying on the audio recording and transcript of the trial, together with affidavits and other materials filed as part of the fresh evidence, the appellant argues that trial counsel:

(i) was incapable of advocating effectively in the English language;

(ii) failed to call material witnesses, whose evidence would have supported the appellant’s defence;

(iii) breached the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L. (Eng.)) by failing to put evidence of past sexual history between the appellant and the complainant to the complainant during cross-examination, thereby undermining the appellant’s ability to challenge the complainant’s credibility and to make out the defence of honest but mistaken belief in consent;

(iv) was generally unprepared for trial;

(v) waived the appellant’s right to a preliminary inquiry and a Superior Court trial without first advising the appellant of his rights under s. 11(f) of the Charter ; and

(vi) failed to arrange for a Spanish language interpreter to assist the appellant.

[7] The appellant faces a high hurdle in attempting to demonstrate ineffective assistance of trial counsel. For an appeal to succeed on this ground, the appellant must establish the following: i) the material facts underlying the allegation, on a balance of probabilities; ii) that counsel’s acts or omissions constituted incompetence, measured on a reasonableness standard and in light of a strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance (the “performance component”); and iii) that counsel’s ineffective representation caused a miscarriage of justice by resulting in procedural unfairness or undermining the reliability of the verdict (the “prejudice component”): R. v. Meer, 2016 SCC 5; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-28; Archer, at paras. 119-20.

[8] In considering a claim of ineffective assistance of counsel, this court must first assess the prejudice component. If the claim fails on this ground, it is unnecessary to assess the adequacy of trial counsel’s performance: G.D.B., at para. 29; Archer, at para. 121.

[9] Having reviewed the trial record and the fresh evidence, I conclude that the appellant’s ineffective assistance claim must fail. I assess each of the appellant’s allegations of incompetence below.

(i) Failure to Advocate Effectively in English

[10] While a failure by trial counsel to advocate effectively in English may lead to a miscarriage of justice, the record in this case confirms that the appellant’s counsel, a certified Spanish language translator, communicated adequately at trial. Considered in its entirety, the trial record does not support the claim that he either misunderstood the trial judge or that the trial judge misunderstood him.

[11] In particular, the record reveals that the trial judge was left in no doubt about the appellant’s claim that the complainant had consented to sexual intercourse and his alternative claim that he had an honest but mistaken belief in her consent. At the end of the day, for reasons he made clear, the trial judge simply rejected these defences on the basis of the evidence before him. He was entitled to do so. The appellant has therefore failed to rebut the presumption that trial counsel’s conduct in this regard fell within the wide range of reasonable professional assistance.

(ii) Failure to Call Material Witnesses

[12] The appellant has not established any miscarriage of justice arising out of counsel’s decision not to call certain witnesses.

[13] The fresh evidence includes an affidavit by the appellant’s trial counsel and the transcript of his cross-examination on that affidavit. In his evidence, trial counsel outlines a reasonable tactical basis for his decision not to call the additional witnesses identified by the appellant. This was counsel’s call to make. In my opinion, it cannot be said that his decision in this regard was unreasonable or clearly prejudicial to the appellant.

(iii) Breach of the Rule in Browne v. Dunn

[14] I agree with the respondent’s submission that it is arguable whether trial counsel breached the rule in Browne v. Dunn by failing to cross-examine the complainant on the details of her alleged prior sexual contact with the appellant. The complainant categorically denied such contact during her evidence-in-chief. It is a reasonable inference that, if pressed on cross-examination on this issue, she would simply have done so again.

[15] More importantly, this omission by trial counsel did not figure in the trial judge’s rejection of the appellant’s version of events. On the contrary, the trial judge explicitly considered the appellant’s evidence that the complainant had consented to sexual intercourse with him and, alternatively, that he had an honest but mistaken belief in her consent, and rejected this evidence on its own terms. For example, with respect to the defence of honest but mistaken belief in consent, the trial judge specifically addressed, and rejected, the appellant’s testimony that he and the complainant had had prior consensual sexual contact. He stated, at pp. 52-53 of his reasons:

I have carefully reviewed what the accused said in his affidavit on the s. 276 motion which I am entitled to do. I have carefully reviewed what he said in his evidence-in-chief on this point. I reject his evidence entirely about prior sexual contact with the complainant. … I reject the accused’s idea that he had an honest but mistaken belief that … [the complainant] was consenting.

The trial judge later reiterated, at pp. 53-54: “As I say, I think the accused’s supposed belief in what had happened before is dishonest. I reject his evidence on that as I reject his evidence that she was consenting.”

[16] Accordingly, even assuming that trial counsel should have pursued the suggested line of cross-examination, no prejudice flowed to the appellant from his failure to do so.

(iv) Unpreparedness for Trial

[17] The appellant has failed to establish that trial counsel’s state of preparedness for trial resulted in a miscarriage of justice. Even assuming the appellant’s allegations are true, I am not persuaded that counsel’s conduct had any impact on the reliability of the verdict or trial fairness.

[18] In any event, the appellant’s complaints regarding counsel’s preparation are undercut by counsel’s records. Trial counsel’s extensive dockets form part of the fresh evidence. They detail his numerous preparatory steps for trial, including several consultations with the appellant. That another defence counsel might have prepared for trial differently, or in a more extensive fashion, is irrelevant.

(v) Failure to Advise the Appellant of his s. 11(f) Charter Rights

[19] While a failure to advise an accused about the available modes of trial may constitute incompetence leading to a miscarriage of justice in the appropriate case, I conclude that the appellant has failed to demonstrate any such failure on the part of his trial counsel.

[20] Contrary to the appellant’s contention, trial counsel swore in his affidavit that he advised the appellant of his right to a jury trial in the Superior Court and to request a preliminary inquiry. Counsel’s docket entries support this claim.

[21] Parts of the trial record and fresh evidence also support trial counsel’s assertion that the decision to stand trial in the Ontario Court of Justice, before a judge alone, was driven by the following considerations: i) the appellant’s desire to obtain an early resolution of the prosecution; and ii) concerns that a jury trial would not serve the appellant’s interests, given his professed belief that a Canadian jury would favour a female complainant in a sexual assault case and his problematic views towards women.

(vi) Failure to Arrange for a Spanish Language Interpreter

[22] Finally, I address the appellant’s complaint that he was prejudiced by trial counsel’s failure to request a Spanish language interpreter in my discussion of his second ground of appeal. As I will explain, I am not persuaded that this omission led to any impairment of trial fairness or that it undermines the reliability of the verdict.

[23] The ineffective assistance of counsel claim therefore fails.

(4) Section 14 Charter Claim

[24] The appellant maintains that he had great difficulty at trial “understanding the questions and issues being put to him” and in expressing himself, and that his difficulties were apparent to the trial judge. As a result, he submits, the trial judge was obliged to inquire about whether the appellant required interpreter assistance. He says the trial judge’s failure to appoint an interpreter, and defence counsel’s failure to request one, violated his s. 14 Charter rights and deprived him of the opportunity to participate meaningfully in his own defence, to make full answer and defence and to benefit from a fair trial.

[25] I would reject these submissions.

[26] A right to interpreter assistance is not automatic. To establish a violation of s. 14, the appellant must demonstrate, on a balance of probabilities, that he was actually in need of such assistance at trial – i.e., that he did not understand or speak the language being used in court: R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, at pp. 979-80. I am not persuaded that the appellant has satisfied this burden.

[27] The record in this case, read as a whole, amply demonstrates that the appellant understood the trial proceedings and made himself understood.

[28] In support of his claim that he needed the assistance of an interpreter, the appellant relies heavily on one exchange with Crown counsel at trial. On cross-examination, Crown counsel inquired of the appellant whether he had asked the complainant “if she wanted to have sex with [him]”. The appellant replied: “No. Why should I? You don’t – when you’re – .” The trial judge then interjected to ask the appellant if that was his answer. The appellant responded “Sorry. Um – it just went with the flow. I don’t know. Just – just went.”

[29] Before this court, the appellant maintains that his initial answer to this question was misunderstood and that he meant to say, “Why would I?” instead of “Why should I?” He asserts that, in his answer, he intended to convey that he did not ask the complainant whether she wanted to have sex with him “because of the way things happened” and because “one thing led to another thing”, and that his efforts at trial to explain or clarify his answer were frustrated by the trial judge’s interventions. He says that the trial judge relied on his “misspoken words” to reject his defence of honest but mistaken belief in consent and that this demonstrates that he was prejudiced in his defence by his English language difficulties.

[30] I disagree.

[31] The appellant clearly articulated his position to the trial judge during re-examination by his own counsel. When asked to explain what he meant when he said “Why should I?”, the appellant replied:

Like, I had a girlfriend before and I never – I never asked her like, if he – she wants to have sex. I don’t know if is [sic] the right word to say, like – like we went with the flow, right, like I was giving her a massage and that’s – that’s about it, right. And one – one thing lead to another thing and then we start – we ended up having sex.

[32] I would therefore reject the contention that the appellant’s exchange with Crown counsel established any need for interpreter assistance at trial. As his answer on re-examination indicates, the appellant had no difficulty in making his position clear to the trial judge. That the trial judge ultimately rejected the appellant’s testimony with respect to his belief in consent and also accepted the complainant’s testimony that she did not consent, does not establish that the appellant needed the assistance of an interpreter. It simply means that the trial judge, having observed the appellant and hearing his testimony, did not believe him.

[33] It is also noteworthy that the appellant did not request the assistance of an interpreter at trial. Nor did he complain at any point about having difficulty understanding the questions posed to him or the testimony given, although the trial judge expressly invited him to do so at the outset of trial, should the need arise.

[34] Instead, the appellant raises the issue of interpretation for the first time on appeal. The appellant’s s. 14 Charter rights do not depend on his having asserted the right to interpreter assistance. Nonetheless, the timing of his interpreter complaint further undermines his assertion that he needed such assistance to properly comprehend the evidence or defend himself at trial. The comments of Lamer C.J. in Tran, at p. 982, are apposite in this case:

Where there are no outward indications which point to a lack of understanding on the accused’s part and where the right [to an interpreter] has not been invoked by the accused or by counsel (in the case of represented accused), these may be factors which are weighed against the accused if, after sitting quietly throughout the trial, the issue of interpretation is suddenly raised for the first time on appeal.

[35] On a fair reading of the trial transcript, there were no positive indications that the appellant did not understand the proceedings or that he could not be understood for language-related reasons. Absent any such indication, the trial judge was not obliged, on his own motion, to conduct an inquiry into the appellant’s need for an interpreter or to order one: Tran, at pp. 979-81.

[36] In all these circumstances, I conclude that the interests of justice are not served by receiving the fresh evidence directed at the question whether the appellant required the assistance of an interpreter.

[37] However, I note that the fresh evidence would not alter my conclusion on the s. 14 claim, in any event. The appellant’s trial counsel swore in his evidence that he both advised and encouraged the appellant to exercise his right to interpreter assistance at trial. Despite this advice, the appellant refused the services of an interpreter on the grounds that “he was a College Student, that he had come to Canada when he was young and that he knew English well”. Counsel’s evidence also furnishes a reasonable explanation for his decision to accept the appellant’s refusal of an interpreter and the appellant’s assertion that his proficiency in English was good enough for trial. Finally, the proposed fresh evidence provides several examples of the appellant’s ability to understand and speak the English language and his practice to seek language assistance when he needs it.

[38] In my view, therefore, the appellant has failed, both on the trial record and on the proposed fresh evidence, to establish that the lack of interpreter assistance at trial breached his s. 14 Charter rights or occasioned any miscarriage of justice.

(5) Disposition

[39] This was a short, relatively straightforward trial where credibility was the central issue. The trial judge rejected the appellant’s account of events, for clear and cogent reasons. He accepted the complainant’s conflicting evidence, again for considered reasons. Her testimony was supported by other evidence regarding, among other matters, her post-event demeanour and actions. In all the circumstances, I agree with the Crown that the appellant’s conviction rested, not on any fault of the trial judge or defence counsel at trial, but on the evidence including, especially, that of the appellant himself. Accordingly, the appellant has not demonstrated any miscarriage of justice.

[40] For the reasons given, I would grant leave to admit the fresh evidence concerning the appellant’s ineffective assistance claim, deny leave to admit the fresh evidence directed at whether the appellant required interpreter assistance, and dismiss the appeal.

Released:

“APR -6 2016” “E.A. Cronk J.A.”

“BM” “I agree John Laskin J.A.”

“I agree B. Miller J.A.”