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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-05-24

Docket: C57809

Panel: Rouleau, Trotter and Paciocco JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

E.H. Appellant

Counsel

For the Appellant: Erika Chozik

For the Respondent: Alison Wheeler

Hearing and Appeal

Heard: May 16, 2017

On appeal from: The conviction entered on August 3, 2013 by Justice E.A. Ready of the Ontario Court of Justice, and from the sentence imposed on October 30, 2013 by Justice E.A. Ready.

Reasons for Decision

Introduction

[1] On May 16, 2017, we allowed the appeal with reasons to follow. These reasons explain why the appeal was allowed.

[2] E.H. was found guilty of two counts of sexual assault and two counts of sexual interference. The offences were alleged to have occurred between 2002 and 2004. The complainants were the two daughters of his girlfriend at the time. They were 7-9 and 12-14 years old at the time of the offences, and 16 and 22 at trial.

[3] The complainants testified that the appellant touched them in their bedrooms at night. The appellant testified and denied the allegations. The trial judge rejected his evidence. She accepted the complainants' evidence and concluded that the appellant's guilt was established beyond a reasonable doubt. The appellant was sentenced to 2 years less one-day imprisonment.

The Appeal

[4] The appellant advances a number of grounds of appeal focused on the trial judge's credibility assessments. He argues that his sentence was too harsh. The appellant also alleges ineffective assistance of his trial counsel (not Ms. Chozik). Given that we allow the appeal on this basis, it is not necessary to address the other grounds of appeal, or the sentence appeal.

[5] The fresh evidence establishes that trial counsel failed to view the three-hour statement that the appellant gave to the police. The DVD containing the statement was defective. Trial counsel did not request another copy from the Crown. He relied upon a synopsis of the statement prepared by the police. He failed to review the statement with the appellant, despite his repeated requests. At the end of the Crown's case, trial counsel spoke to the Crown and conceded that the statement was voluntary and that the appellant could be cross-examined on it. He had not discussed with the appellant the circumstances surrounding the giving of the statement and he failed to forewarn the appellant of what was about to happen.

[6] The appellant was taken by surprise when he was cross-examined on his statement, which he had given some 17 months earlier. He had difficulty recalling what he said to the police. He was cross-examined on isolated passages from the lengthy statement. He tried to explain the circumstances surrounding the giving of the statement and what he meant in the passages that were put to him. The trial Crown (not Ms. Wheeler) instructed the appellant to answer her questions more directly and to stop going off topic. Unaware of the details of the statement, trial counsel did not intervene, nor was he able to utilize re-examination to place the isolated passages in their proper context.

[7] This aspect of the appellant's cross-examination was critical to the trial judge's rejection of his evidence. She found the appellant was "very evasive to the questions that were put to him" and had "his own agenda to get across to the court whenever he could." The trial judge accepted the Crown's submission that the appellant's answers were discrepant with his statement, holding: "These contradictions make his evidence at trial not believable" and "I cannot accept his evidence as credible due to these contradictions."

[8] As part of his claim of ineffective assistance of trial counsel, the appellant swore an affidavit and was cross-examined. He explained the circumstances leading up to his attendance at the police station. He thought he was going to discuss a completely different incident, one that he had previously reported. He was taken by surprise when the police questioned him about offences alleged to have occurred many years earlier, in 2002 and 2004.

[9] The appellant testified that he was shocked to be cross-examined on his statement at trial. He felt unprepared and believed that it impacted adversely on his performance as a witness and his ability to explain the alleged inconsistencies that were put to him in cross-examination. Indeed, the appellant swears that his statement was not inconsistent with his trial testimony.

[10] The appellant's background is relevant to what happened in this case. He came to Canada as a refugee from Iraq in 1998. English is not his first language. He was not offered an interpreter during his interview with the police. It is apparent that he struggled to understand many of the officer's questions. Although the appellant had the benefit of an interpreter at trial, he still struggled with terminology.

[11] Ms. Wheeler does not dispute that the performance of trial counsel fell below the standard of reasonable professional assistance in a criminal case. We agree with this fair assessment. Given the live issues at trial and the circumstances under which the statement was obtained, the appellant has established that trial counsel's conduct fell short of what can reasonably expected: see R. v. B. (G.B.), 2000 SCC 22, at para. 24.

[12] Notwithstanding this failing, Ms. Wheeler urges us to be hesitant in concluding that the appellant has suffered prejudice in a manner that affected the outcome of his case.

[13] The appellant was significantly prejudiced. Without notice from his counsel, he was cross-examined on a statement he gave without an interpreter 17-months earlier. He was totally unprepared for what happened. So was his trial counsel, who was unable to ensure that the appellant had a proper opportunity to explain the alleged inconsistencies. Nevertheless, and through no fault of her own, the trial judge rejected the appellant's evidence because of these "contradictions." Her findings, which were unequivocal and unqualified, were a reasonable response to the evidence before her. However, with hindsight, we now know that: (1) the appellant's very poor performance was due to trial counsel's ineffectiveness; and (2) the apparent "contradictions" between the appellant's statement and his trial evidence would have been either explained away or made more benign had the appellant been properly prepared, or had trial counsel been equipped to re-examine on these areas.

[14] We are satisfied that the appellant has established a "reasonable possibility" that the outcome of the trial would have been different had trial counsel properly discharged his professional obligations: see R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), p. 64 and R. v. B. (M.), 2009 ONCA 524, at paras. 10 and 29.

Disposition

[15] The appeal is allowed, the convictions are set aside and a new trial is ordered.

"Paul Rouleau J.A."

"G.T. Trotter J.A."

"David Paciocco J.A."