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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2018-04-13

Docket: C64490

Panel: Hoy A.C.J.O., MacPherson and Juriansz JJ.A.

Between

Her Majesty the Queen Respondent

and

L.H.E. Appellant

Counsel

Breese Davies and Andrew Burgess, for the appellant

Jennifer Epstein, for the respondent

Heard

April 11, 2018

Appeal Information

On appeal from the conviction entered on November 4, 2009 by Justice Laurence A. Pattillo of the Superior Court of Justice.

Reasons for Decision

[1] The appellant L.H.E. was convicted of sexual assault, sexual exploitation, sexual interference, and invitation to sexual touching, all in relation to his step-daughter, following a trial before Pattillo J. of the Superior Court of Justice. He received a sentence of nine years' imprisonment.

[2] The appellant appeals his conviction on a single ground – ineffective assistance of trial counsel. He asserts that his trial counsel, Susan von Achten, behaved unprofessionally in an important respect - she filed a false affidavit with the trial court in support of his bail review application. The appellant states that his trial counsel at the time she interviewed him made him sign a blank piece of paper. She then wrote the contents of his affidavit supporting the bail review application herself, attached the blank page signed by the appellant, and signed the jurat. Trial counsel then filed this handwritten affidavit with the Court without reviewing its contents with the appellant.

[3] The appellant also asserts that his trial counsel failed to prepare him to testify for trial, made incorrect arguments on crucial legal issues, and failed to cross-examine Crown witnesses effectively.

[4] The appellant contends that his trial counsel's professional misconduct and incompetence prejudiced him at his trial. The falsified affidavit contained numerous factual inaccuracies, some about irrelevant and easily verifiable matters about which the appellant would have no reason to lie. The appellant says that he was cross-examined to great effect on these inaccuracies at his trial and the trial judge cited this as one reason for disbelieving his evidence.

[5] In support of his sole ground of appeal, the appellant prepared and filed a substantial fresh evidence record, including the appellant's affidavit, the cross-examination on that affidavit, the examination and cross-examination of trial counsel, and many documents filed during the examinations of the appellant and trial counsel.

[6] The test for assessing an ineffective assistance of counsel claim was stated succinctly by O'Connor A.C.J.O. in R. v. L.C.T., 2012 ONCA 116, at para. 37:

When a claim of ineffective assistance is raised, the onus is on the appellant to establish (1) the facts that underpin the claim; (2) the incompetence of the assistance provided; and (3) the incompetent assistance resulted in a miscarriage of justice. … [Citations omitted.]

[7] The Crown agrees that this appeal turns on the third hurdle, namely whether a miscarriage of justice resulted. To succeed at this third step, the appellant must establish either that there is a reasonable probability that the verdict would have been different had he received effective legal representation, or that his counsel's conduct deprived him of a fair trial: see R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520.

[8] In our view, the appellant cannot establish either.

[9] On the 'verdict would have been different' point, there is a simple reality about the record in the appellant's trial, namely, the strong evidentiary basis upon which the appellant was convicted. The Crown presented an overwhelming case against the appellant. The appellant's trial was not simply a "he said, she said" sexual assault case. In addition to the complainant's evidence, which the trial judge found credible, the Crown presented evidence that the appellant had confessed to his wife, told his son that he was sorry for what he had done to the complainant and knew he would go to jail for a long time, possessed a jacket with condoms in a pocket that corroborated the complainant's evidence and fled the country immediately after learning about the allegations against him. On this last point, the trial judge said, reasonably: "I have rejected Mr. [E]'s explanation of why he left the country on May 19th on the basis that it is a complete fabrication." The trial judge identified the appellant's explanation of why he fled Canada as where "[his] credibility really comes apart."

[10] On the 'deprived of a fair trial' point, when the trial Crown cross-examined the appellant on inconsistencies between his trial testimony and statements in his bail review affidavit, the appellant testified that some statements in his bail review affidavit were "typos". The fact that the appellant's evidence at trial was inconsistent with the evidence provided to the court in support of his bail application was one of many reasons that at the trial judge did not believe his denial that he never sexually assaulted his step-daughter. The appellant argues that he did not have a fair trial because his counsel effectively created evidence, through her preparation of his bail review affidavit before trial, which was used against him at trial.

[11] We are not persuaded that the appellant's trial was unfair. This is not a case where the incompetence amounted to actual or constructive denial of the assistance of counsel at trial or where the adversarial dynamic of the trial was lost. Trial counsel put the appellant's defence to the trial judge and challenged the Crown's case. His claim that his trial was unfair is based on specific actions by his counsel prior to trial and did not detract from the fairness of the adjudicative process at trial. Nor did it impact on the reliability of the verdict. Even if the inconsistencies were removed, the trial judge would not have accepted that the appellant was a credible witness, especially in light of his complete rejection of the appellant's explanation for his departure from Canada within hours of learning about the police investigation.

[12] Accordingly, the appeal is dismissed.

Alexandra Hoy A.C.J.O.

J.C. MacPherson J.A.

R.G. Juriansz J.A.