



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    information that could identify the victim or a witness shall not be published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 complainants 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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. L.H.E., 2018 ONCA 362

DATE: 20180413

DOCKET: C64490

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

BETWEEN

Her Majesty the Queen

Respondent

and

L.H.E.

Appellant

Breese Davies and Andrew Burgess, for the appellant

Jennifer Epstein, for the respondent

Heard: April 11, 2018

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 counsels 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 appellants 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 OConnor 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 counsels conduct deprived him of a fair trial: see
R. v. G.D.B.
, [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 appellants trial, namely, the strong
    evidentiary basis upon which the appellant was convicted. The Crown presented
    an overwhelming case against the appellant. The appellants trial was not
    simply a he said, she said sexual assault case. In addition to the
    complainants 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 complainants 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 19
th
on the basis that it is a complete fabrication.
    The trial judge identified the appellants 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 appellants 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 appellants 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 appellants defence to the trial judge and
    challenged the Crowns 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 appellants 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.


