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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

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 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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

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); 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.

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 of Appeal for Ontario

Date: 2018-02-05

Docket: C57308

Judges: Juriansz, Watt and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Ian Walendzewicz Appellant

Counsel:

• Erika Chozik, for the appellant
• Alex Hrybinsky, for the respondent

Heard: January 30, 2018

On appeal from: The conviction entered on February 11, 2013 and the sentence imposed on June 28, 2013 by Justice Jane Ferguson of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals his convictions of sexual assault, assault causing bodily harm, and uttering threats. He submits that he received ineffective assistance of counsel at trial and that a miscarriage of justice resulted.

[2] The complainant alleged that the appellant, with whom she had an on and off relationship, came to her apartment drunk on the night of October 18, 2003, punched her in the face breaking her nose, threatened to pour hot soup on her and her baby, and had sexual intercourse with her without her consent. The complainant reported the events to the police within a few hours, and attended at the hospital where a sexual assault case submission questionnaire was completed. A warrant was issued for the appellant's arrest, but was not executed until some 10 years later, because he had left the province.

[3] The appellant did not testify at trial but advanced a defence of consent. The only issue at trial was the complainant's credibility.

[4] The complainant testified at the preliminary inquiry and at trial that she did not and would not have consented to sexual intercourse because she had just given birth three weeks earlier. Her trial testimony includes the following exchange:

A: Three weeks after having a baby I am having consensual sex, does that even make sense?

Q: So you are saying you could not have sex?

A: There is no way I would have been having sex, no.

Q: Okay.

[Trial Counsel]: Court's indulgence…

A: Three weeks after having a baby you are not having sex. You are supposed to be waiting at least six weeks. And trust me, the last thing on your mind after giving natural childbirth is sex.

[5] In her reasons for convicting the appellant, the trial judge relied on the complainant's claim that she would not have consented to intercourse so soon after having a baby.

[6] The linchpin of the appeal is that the sexual assault questionnaire, completed at the hospital later on the day of the alleged assault, contained the question, "Was the last previous intercourse within 1 week prior to the assault?" The questionnaire indicates that the complainant reported that vaginal intercourse took place two days earlier on October 16, 2003 at 1700 hrs. and that a condom was used. The questionnaire was entered into evidence at the outset of trial by the Crown "for the truth of its contents" with the consent of the defence.

[7] When preparing for trial, the appellant's trial lawyer failed to notice this answer in the questionnaire. He did not bring a s. 276 application to cross-examine the complainant on the answer before trial [on the basis of the complainant's testimony at the preliminary hearing], or at trial upon the complainant's testimony that she did not and would not have consented to sexual intercourse with the appellant because she had just given birth three weeks earlier.

[8] In closing argument, trial counsel did attempt to rely on the questionnaire, but the trial judge told him he could not as he had not put it to the complainant and that no s. 276 application had been brought.

[9] The Crown points out that the answer in the questionnaire fails to establish that the complainant had consensual sexual intercourse two days prior to the alleged assault. The Crown says that without an evidentiary foundation that the complainant had had prior consensual sexual intercourse, any s. 276 application would have been unsuccessful. The Crown says that in order to establish the necessary evidentiary foundation the appellant would have had to testify that he had had consensual sexual intercourse with the complainant two days earlier, and the fresh evidence fails to indicate he would have been willing to reconsider his decision not to take the stand at trial. The Crown contends, in any event, the fresh evidence does not establish that any cross-examination pursuant to s. 276 would have assisted the appellant, as the cross-examination would necessarily have elicited more evidence of the appellant's abuse of the complainant.

[10] We do not accept these arguments. As appellant's counsel points out, the complainant sought to corroborate her position she did not consent by offering the testimony set out above. This testimony, while on the witness stand at trial, was central to her credibility, which was the only live issue at trial. We agree with appellant's counsel that this court's decision in R. v. R.S., 2016 ONCA 655, 341 C.C.C. (3d) 530, shows trial counsel's failure to even attempt to bring a s. 276 application is itself enough to establish ineffective representation. That said, we are of the view that a s. 276 application could have been successful on the basis of the answer in the questionnaire, without the appellant having to testify at trial or even on the s. 276 application.

[11] We are satisfied that the appellant received ineffective representation at trial that undermines the reliability of the verdict and resulted in a miscarriage of justice. We allow the appeal, quash the convictions and order a new trial, if the Crown wishes to proceed with one in light of the appellant having served his sentence.

"R.G. Juriansz J.A."

"David Watt J.A."

"B.W. Miller J.A."