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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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.

Court of Appeal for Ontario

Date: 20240719 Docket: C67758

Rouleau, Dawe and Wilson JJ.A.

BETWEEN

His Majesty the King Respondent

and

S.T. Appellant

Counsel: Daniel Ciarabellini and Gavriel Swayze, for the appellant Nicolas de Montigny, for the respondent

Heard: June 24, 2024

On appeal from the conviction entered on November 17, 2016, by Justice Jill M. Copeland of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his convictions for sexually assaulting his wife and uttering threats against her and their son. He raises a number of grounds of appeal, some of which partially overlap. His grounds include an allegation about the inadequacy of the trial interpretation, and allegations that he received ineffective assistance from his trial counsel.

A. Factual background

[2] The appellant and the complainant were married in 2011 in Sri Lanka. The marriage was arranged by their families. The complainant was a Canadian citizen, and after their wedding she sponsored the appellant’s application to immigrate to Canada. He arrived in late 2012, and a few months later they moved into a condominium, although they disputed whether they bought it together or whether the complainant was the sole purchaser. In March 2014, the complainant gave birth to their child.

[3] In October 2014 they had a falling-out that resulted in the complainant moving out of their condominium. They agreed that the dispute related to an argument over the appellant’s decision to invite the complainant’s brother, from whom she was estranged, to a traditional “rice feeding ceremony” for their son, but they disagreed over the details. According to the complainant, she left after the appellant threatened to poison their son and blame it on her brother. According to the appellant, the complainant moved out because she was upset that he had invited her brother to the ceremony.

[4] After the complainant left the condominium, the appellant also moved out and rented an apartment. In February 2015 the complainant arranged to sell the condominium. According to the appellant, he only signed the sale papers after the complainant threatened to falsely accuse him of assaulting her if he refused.

[5] Shortly after the condominium sold, the couple reconciled and resumed cohabiting in the appellant’s apartment. According to the complainant, the appellant soon afterwards began threatening and physically assaulting her. (The appellant was not charged with any offences based on these allegations). She also alleged that he began demanding sex from her, which she always refused.

[6] The complainant testified that on the evening of April 3, 2015, the appellant demanded sex from her, and when she refused and locked the bedroom door, he broke the lock. The next morning, on April 4, 2015, he forced sexual intercourse on her in their bedroom without her consent. This was the basis for the sexual assault charge.

[7] The appellant denied these allegations. He maintained that on April 3, 2015, he did not get home from work until 11:00 p.m. and went straight to sleep, and that the next morning he and the complainant had consensual sex, which she initiated.

[8] It was common ground that the complainant then moved out of the apartment on May 18, 2015. However, the parties gave divergent evidence about the surrounding circumstances. According to the complainant, she left after the appellant threatened to kill her and their son with an iron rod and throw their bodies in a dumpster. She took these threats seriously, and moved out of the apartment with their son. Approximately a week later, she went to the police. These alleged threats against the complainant and their son were the basis for the two charges of uttering death threats on which the appellant was tried and convicted.

[9] The appellant gave a different version of events. On his evidence, in mid‑April he and the complainant had a serious argument after she refused to attend religious services with him on Tamil New Year. A few weeks later, he demanded that the complainant move out, partly because he was still upset over the Tamil New Year argument, and partly because the complainant was not contributing to the household expenses and had not followed through on a promise she had made to deposit his share of the condominium sale proceeds into an RESP account for their son.

[10] The appellant testified further that on May 4, 2015, the complainant called the appellant’s uncle and demanded that she be paid $100,000, in part to compensate her for what she claimed was $50,000 she had spent to sponsor the appellant’s visa application. A few weeks later, on May 18, before he went to work, they had an argument during which the complainant hit him. Later that day, when he came home from work, he found the complainant and their son gone.

[11] In cross-examination, the complainant agreed that she had spoken with the appellant’s uncle on or around May 4, 2015. However, she denied demanding money, testifying that she had only mentioned how much it had cost her to sponsor the appellant’s visa application, and had complained that he did not appreciate the value of what she had done. On her account, she called the appellant’s uncle to complain that the appellant was pressuring her to have sex, and threatening to make her watch him have sex with another woman.

[12] The complainant and the appellant were the only two witnesses who testified at trial. The trial judge found the complainant to be wholly credible and found the appellant’s evidence unbelievable, stating that:

[A] number of aspects of his evidence are illogical and unbelievable, and his narrative of events does not provide a logical explanation for why certain events occurred.

The trial judge went on to give three specific examples. First, she rejected the appellant’s evidence that he believed the complainant had only married him as part of a scheme to get money, noting that “having a baby with him seems an awfully long way to go to accomplish that monetary goal”. Second, the trial judge found that the complainant’s evidence that the appellant threatened her and her son provided a logical explanation for why she moved out in October 2014 and May 2015, whereas the appellant’s evidence “[did] not provide a logical explanation for why she would leave at those times”. Third, she found the appellant’s account of having signed the condominium sale papers because of threats from the complainant unbelievable, stating:

I do not accept that the lawyer would have continued telling [the appellant] to sign the paperwork if [the appellant] told the lawyer that he could not understand the documents and also told him that his wife had threatened him to make him sign the papers.

B. Analysis

(1) The adequacy of the trial interpretation

(1) The alleged interpretation errors

[13] The appellant testified at trial through a Tamil interpreter, while the complainant testified in English. The appellant’s first ground of appeal is that the quality of the interpretation during the first part of his evidence-in-chief fell below constitutional minimum standards guaranteed by s. 14 of the Canadian Charter of Rights and Freedoms. He seeks to adduce fresh evidence in the form of an affidavit from a different Tamil interpreter identifying a number of translation errors.

[14] We would admit the fresh evidence, which “seeks to shed light on the validity of the trial process”, and accordingly need not be subjected to the usual Palmer criteria: see R. v. Saini, 2023 ONCA 445, at para. 34; Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775.

[15] However, we would not give effect to this ground of appeal. Some issues did arise with the interpretation that was provided during the first part of the appellant’s testimony, which led the trial judge to have a different interpreter brought in to assist with the balance of his evidence. However, as Lamer C.J.C. noted in R. v. Tran, [1994] 2 S.C.R. 951, at p. 987, “it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection”. The interpretative errors that were made during the first part of the appellant’s testimony were relatively minor, and were often corrected or clarified later on. We are not persuaded that the quality of the interpretation fell below the standard required by s. 14 of the Charter.

[16] In particular, the appellant focused on one exchange that occurred during his evidence-in-chief, when the appellant was testifying about the threats he says the complainant made to induce him to sign the sale papers for the condominium. He raises the concern that his evidence was interpreted in a manner that could have been misunderstood as him saying that his wife had threatened him in front of the lawyer who had prepared the papers, whereas his actual evidence was that she had made her threats before the meeting with the lawyer.

[17] The corrected version of the appellant’s evidence on this point is itself ambiguous about the timing of the threats. More importantly, however, the appellant made it clear at other points in his testimony that his evidence was that the complainant had made the threats as they were going to Tim Hortons before their meeting with the lawyer. As a result, there was ultimately no real risk that the trial judge would be confused about the appellant’s evidence on this point. Indeed, her reasons make clear that she correctly understood the appellant to have been saying that the complainant made the threats while they were going to Tim Hortons before the meeting with the lawyer.

(2) The trial judge’s misapprehension of the evidence

[18] However, we agree with the appellant that the trial judge misapprehended his evidence on a related point, although we do not accept his further argument that this mistake can be traced to an interpretation problem.

[19] During his examination-in-chief, the appellant explained that after the meeting with the lawyer at which he had signed the condominium sale papers, which occurred in the garage of the lawyer’s house, he went the next day to see the lawyer at his office. The appellant testified:

The next day I went to the lawyer. He said the matter is over. If you want you can go to the courts.

In cross-examination, Crown counsel then asked the appellant if he had told the lawyer about his wife’s threats, and he replied: “I told him and he asked me to go to the courts”. Since the appellant had previously testified that the lawyer made the comment about going to the courts during the second meeting they had at the lawyer’s office, we accept that on a fair reading of his evidence as a whole, the appellant probably meant to convey that he had told the lawyer about the threats only during this second meeting.

[20] However, the trial judge understandably but incorrectly understood the appellant to have been saying that he had told the lawyer about his wife’s threats during the first meeting, before he signed the sale papers. Her confusion on this collateral point assumed importance when she singled it out in her reasons as one of three examples of the appellant’s evidence that she rejected as unbelievable, to explain why she found his testimony as a whole unworthy of credit.

(2) Ineffective assistance from trial counsel

[21] The appellant’s second ground of appeal is that he received ineffective assistance from his trial counsel. One of his complaints is that his trial counsel failed to adequately address the interpretation problems that arose during the first day of the appellant’s testimony. As already explained, we are not persuaded that the interpretation issues were so severe that they called for trial counsel to do anything more than he did: namely, support the suggestion that a different Tamil interpreter be brought in for the rest of that day, as well as on the next court date, when the appellant completed his evidence.

[22] However, the appellant’s second complaint is more substantial. It requires some explanation to put it into context.

[23] During his trial testimony, the appellant twice stated that he had a “record” of the May 4, 2015 telephone conversation that he said took place between the complainant and his uncle. The trial judge noted this, but observed that “no record was produced at trial”.

[24] The appellant now explains that he had used his own phone to make a surreptitious audio recording of the first part of his wife’s telephone conversation with his uncle, which she conducted over speakerphone. He explains further that he was only able to capture the first part of the call because his phone ran out of memory and stopped recording.

[25] Importantly, Crown counsel on appeal takes no issue with the authenticity of this recording, or with the accuracy of the English transcription of the conversation, which was conducted in Tamil and has been translated by a certified Tamil interpreter. As translated, the conversation – which could perhaps more accurately be described as a monologue, in which only the complainant spoke – reads as follows:

Uncle, uncle, last week he asked me to leave the house. Right! I have no problem leaving the house. It cost me fifty to sponsor him, just coming also would have been fifty. Right! If I have to leave the house I will give you a receipt for the money I spent to bring him and the money I spent for him. For me, approximately I spent fifty thousand to sponsor him. If only I receive hundred thousand I will leave the house. I will also take my child.

[26] The appellant maintains that he gave a compact disc with a copy of the audio recording to his trial counsel in December 2015, some seven months before his trial started, but that when they met at the courthouse on the first day of trial in June 2016, trial counsel returned the disc to the appellant, explaining that “there was no way to play audio at the trial”.

[27] For his part, trial counsel states in his affidavit that he has “no recollection of [the appellant] ever providing an audio recording to me”, adding that he was well aware that audio evidence can be adduced in court in various circumstances. However, it emerged during cross-examination that trial counsel has very little memory of any of his interactions with the appellant, which he attributes to “a lot of stressful issues dealing with [his] personal life”.

[28] In R. v. Fiorilli, 2021 ONCA 461, at para. 48, Paciocco J.A. explained:

A three-part test is used to determine ineffective assistance of counsel appeals, with the appellant bearing the onus of proof and persuasion with respect to each part. The structure of the test was neatly summarized by Watt J.A. in R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91:

An appellant must establish:

i. the facts on which the claim is grounded (the factual component); ii. the incompetence of the representation provided by trial counsel (the performance component); and iii. a miscarriage of justice as a result of the incompetent representation by trial counsel (the prejudice component). [Italics in original.]

The standard of proof is the balance of probabilities: Fiorilli, at para. 51; R. v. K.K.M., 2020 ONCA 736, at para. 55.

(1) The factual component

[29] We find it unnecessary to resolve the dispute between the appellant and trial counsel over whether the appellant gave trial counsel a copy of the recording before his trial began. It is clear from the trial record that trial counsel was aware of the complainant’s May 4, 2015 telephone conversation with the appellant’s uncle, since he asked her about it in cross-examination. Trial counsel must have learned about the conversation from the appellant, and it is implausible that the appellant would not have also at least mentioned to his counsel that he had made a recording of the call, even if he did not provide a copy.

[30] In any event, trial counsel certainly learned about the existence of the recording when the appellant referred to it during his examination-in-chief. However, trial counsel had no recollection of whether he ever asked the appellant about this recording.

(2) The performance component

[31] At this stage of the analysis, “[t]he onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment”: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27. This is a heavy burden, because “[t]he analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: G.D.B., at para. 27.

[32] We are satisfied that the appellant has met his onus. In our view, reasonably competent counsel would have made an effort to obtain the May 4, 2015 recording from the appellant as soon as they learned of its existence, and would have gone on to review its contents, which would have required the assistance of a Tamil interpreter since the words on the recording were spoken in Tamil.

[33] Even though there was little prospect that the recording would bear directly on the truth or falsity of the allegations underlying the criminal charges against the appellant, it was reasonably foreseeable that it might provide counsel with a good‑faith basis for exploring new avenues of cross-examination with the complainant. Since this was an entirely credibility-based case, we are satisfied that reasonably competent counsel would not have ignored this possibility.

[34] Conversely, there was no discernible strategic or tactical reason for trial counsel not to obtain a copy of the recording from his client once he learned of its existence. Indeed, trial counsel did not claim that he made a considered decision not to obtain and review the recording based on the exercise of his professional judgment. Rather, his evidence was that he does not remember whether he ever asked the appellant about the recording, even after the appellant mentioned it during his examination-in-chief.

[35] This makes the circumstances of this case distinguishable from those in G.D.B., where counsel had a secretly-made recording of the complainant in his possession, but made a considered decision not to use the recording at trial. In the case at bar, even if trial counsel did have the recording in his possession for seven months, as the appellant maintains, he could not have reviewed its contents without obtaining the assistance of a Tamil interpreter, which he acknowledges was not something he ever did while representing the appellant. On the evidence as a whole, we are satisfied that regardless of whether trial counsel ever had possession of a copy of the recording, he remained ignorant of its contents.

(3) The prejudice component

[36] We are also satisfied that trial counsel’s failure to ascertain the contents of the recorded conversation prejudiced the appellant.

[37] If trial counsel had known what was on the recording, he could potentially have cross-examined the complainant more effectively in two different areas.

[38] The first area was the issue of whether the complainant had demanded money from the appellant’s uncle. She had denied doing this, testifying that she had only said that the appellant should be grateful to her for the money she had spent to help with his immigration.

[39] Importantly, in her reasons for judgment the trial judge singled out the complainant’s evidence on this issue as one factor that bolstered her credibility, stating:

[The complainant] was consistent in her evidence that she was not demanding money, but rather was saying, in effect, that the [appellant] should be more grateful for her sponsorship of him, because it would have cost him $50,000 or $100,000 to come to Canada if she had not married him. I believe the complainant’s evidence of the nature of these statements and that they were not a demand for money. The complainant was forthright and not evasive when questioned about this area for the first time in cross-examination. I find her evidence and explanation for these statements believable.

[40] If trial counsel had been aware of the recording, he could have cross‑examined the complainant on her statements to the appellant’s uncle that she had spent $50,000 to sponsor the appellant, and that “[i]f only I receive hundred thousand I will leave the house” (translation). If necessary, he could have played the recording to establish the precise words in Tamil that she had used: Canada Evidence Act, R.S.C. 1985, c. C-5, s. 10(1). Such cross-examination could potentially have undermined the complainant’s evidence on a point that the trial judge later treated as a hallmark of her overall testimonial credibility.

[41] The second area where the recording would potentially have assisted the defence was on the issue of why the complainant had moved out of the appellant’s apartment on May 18, 2015. The trial judge accepted the complainant’s evidence about the cultural and family pressures she was under to stay in the marriage even after the appellant had physically and sexually assaulted her, and concluded that her evidence that she only moved out after the appellant threatened their son “provides a logical explanation for why she left”. Conversely, the trial judge singled out the appellant’s inability to “provide a logical explanation for why [the complainant] would leave” as one of three specific factors that led her to entirely reject his evidence.

[42] The recording of part of the complainant’s May 4, 2015 telephone conversation with the appellant’s uncle confirms the appellant’s evidence that he had been asking the complainant to move out since late April 2015. It also had the potential to undermine the complainant’s explanation about her reason for moving out of the shared apartment on May 18, 2015, insofar as she told the appellant’s uncle a few weeks earlier, on May 4, 2015, that she had “no problem” leaving, at least if she were paid.

[43] To establish that his trial counsel’s ineffectiveness resulted in an “unreliable verdict”, the appellant must “establish a reasonable probability that the result would have been different”: Fiorilli, at para. 59 (emphasis in original). As Doherty J.A. observed in R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 75, leave to appeal refused, [1996] S.C.C.A. No. 347, a “reasonable probability is more than a mere possibility, but less than a likelihood.” In R. v. Al-Shammari, 2016 ONCA 614, at para. 75, Juriansz J.A. explained:

A reasonable probability is established when the reviewing court is satisfied that because of counsel’s incompetence, the verdict cannot be taken as a reliable assessment of the appellant’s culpability.

[44] In this case, there is a reasonable probability that trial counsel could have used the May 4, 2015 recording to undermine the complainant’s evidence in two of the areas that the trial judge later singled out in her reasons for judgment as leading her to conclude that the complainant was credible. The recording also would have bolstered the appellant’s testimony on an issue that the trial judge later cited as a specific reason for finding his evidence incredible.

[45] When taken together with the trial judge’s misapprehension of the appellant’s evidence about when he told the real estate lawyer about his wife’s threats, which the trial judge also relied on as grounds for rejecting his testimony, we are satisfied that the appellant has met his burden of demonstrating that the verdict “cannot be taken as a reliable assessment of the appellant’s culpability”.

[46] We would accordingly admit the fresh evidence on the ineffective assistance of counsel ground, allow the appeal and set aside the appellant’s convictions, and order a new trial.

“Paul Rouleau J.A.”

“J. Dawe J.A.”

“D.A. Wilson J.A.”