



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)       REPEALED: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    information that could identify the victim shall not be published in any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. Walendzewicz, 2018 ONCA 103

DATE: 20180205

DOCKET: C57308

Juriansz, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ian Walendzewicz

Appellant

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
    appellants 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 complainants
    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]: Courts 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 complainants 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 appellants 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 complainants testimony at the preliminary hearing], or at
    trial upon the complainants 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 appellants abuse of the complainant.

[10]

We do not accept these arguments. As appellants
    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 appellants counsel that this courts
    decision in
R. v. R.S.
, 2016 ONCA 655, 341 C.C.C. (3d) 530,
shows trial counsels 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.


