



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Chica, 2016 ONCA 252

DATE: 20160406

DOCKET: C57416

Laskin, Cronk and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Heli Samuel Chica

Appellant

Elmé G. Schmid and Lina Anani, for the appellant

Mabel Lai, for the respondent

Heard: March 7, 2016

On appeal from the conviction entered by Justice David P.
    Cole of the Ontario Court of Justice, dated March 5, 2013.

Cronk J.A.:

(1)

Background

[1]

After a two-day trial before a judge alone, the appellant Heli Samuel
    Chica was convicted of one count of sexual assault relating to his friends
    girlfriend, T.F. He was sentenced to two years imprisonment, plus three years
    probation. He appeals from his conviction.

[2]

The appellant advances two grounds of appeal. First, he argues that his
    counsels assistance at trial was ineffective, compromising his right to make
    full answer and defence and leading to a miscarriage of justice. Second, he
    contends, for the first time on appeal, that his right to an interpreter under
    s. 14 of the
Charter of Rights and Freedoms
was breached because he is
    a native Spanish speaker and his trial was conducted in English, without the
    assistance of an interpreter.

[3]

For the reasons discussed below, I would dismiss the appeal.

(2)

Fresh Evidence

[4]

The appellant seeks leave to file fresh evidence on appeal relating to
    both the ineffective assistance of counsel and s. 14 claims.

[5]

In my view, it is in the interests of justice to receive the fresh
    evidence relating to the appellants ineffective assistance of counsel claim:
R.
    v. Howell
, 2015 ONCA 728;
R. v. Nwagwu
, 2015 ONCA 526;
R. v.
    Qiu
, 2010 ONCA 736, 268 O.A.C. 352;
R. v. Archer
(2005), 202
    C.C.C. (3d) 60 (Ont. C.A.);
R. v. Joanisse
(1995), 102 C.C.C. (3d) 35
    (Ont. C.A.), leave to appeal refused, [1996] S.C.C.A. No. 347. However, for the
    reasons explained below, I would not admit the fresh evidence directed at
    whether the appellant required the assistance of an interpreter at trial.

(3)

Ineffective Assistance of Counsel Claim

[6]

The appellant maintains that his trial counsels assistance was
    deficient in several respects. Relying on the audio recording and transcript of
    the trial, together with affidavits and other materials filed as part of the fresh
    evidence, the appellant argues that trial counsel:

(i)    was
    incapable of advocating effectively in the English language;

(ii)   failed
    to call material witnesses, whose evidence would have supported the appellants
    defence;

(iii)  breached
    the rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L. (Eng.)) by failing to
    put evidence of past sexual history between the appellant and the complainant
    to the complainant during cross-examination, thereby undermining the
    appellants ability to challenge the complainants credibility and to make out
    the defence of honest but mistaken belief in consent;

(iv)  was generally unprepared for trial;

(v)   waived
    the appellants right to a preliminary inquiry and a Superior Court trial
    without first advising the appellant of his rights under s. 11(f) of the
Charter
; and

(vi)  failed
    to arrange for a Spanish language interpreter to assist the appellant.

[7]

The appellant faces a high hurdle in attempting to demonstrate ineffective
    assistance of trial counsel. For an appeal to succeed on this ground, the
    appellant must establish the following: i) the material facts underlying the
    allegation, on a balance of probabilities; ii) that counsels acts or omissions
    constituted incompetence, measured on a reasonableness standard and in light of
    a strong presumption that trial counsels conduct fell within the wide range of
    reasonable professional assistance (the performance component); and iii) that
    counsels ineffective representation caused a miscarriage of justice by
    resulting in procedural unfairness or undermining the reliability of the
    verdict (the prejudice component):
R. v. Meer
, 2016 SCC 5;
R. v.
    G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at paras.
26-28;
Archer
, at paras.
119-20.

[8]

In considering a claim of ineffective assistance of counsel, this court
    must first assess the prejudice component. If the claim fails on this ground,
    it is unnecessary to assess the adequacy of trial counsels performance:
G.D.B.
,
    at para. 29;
Archer
, at para. 121.

[9]

Having reviewed the trial record and the fresh evidence, I conclude that
    the appellants ineffective assistance claim must fail. I assess each of the
    appellants allegations of incompetence below.

(i)

Failure to Advocate Effectively in English

[10]

While
    a failure by trial counsel to advocate effectively in English may lead to a miscarriage
    of justice, the record in this case confirms that the appellants counsel, a
    certified Spanish language translator, communicated adequately at trial. Considered
    in its entirety, the trial record does not support the claim that he either
    misunderstood the trial judge or that the trial judge misunderstood him.

[11]

In
    particular, the record reveals that the trial judge was left in no doubt about
    the appellants claim that the complainant had consented to sexual intercourse
    and his alternative claim that he had an honest but mistaken belief in her consent.
    At the end of the day, for reasons he made clear, the trial judge simply
    rejected these defences on the basis of the evidence before him. He was
    entitled to do so. The appellant has therefore failed to rebut the presumption
    that trial counsels conduct in this regard fell within the wide range of
    reasonable professional assistance.

(ii)

Failure to Call Material Witnesses

[12]

The
    appellant has not established any miscarriage of justice arising out of counsels
    decision not to call certain witnesses.

[13]

The
    fresh evidence includes an affidavit by the appellants trial counsel and the
    transcript of his cross-examination on that affidavit. In his evidence, trial
    counsel outlines a reasonable tactical basis for his decision not to call the
    additional witnesses identified by the appellant. This was counsels call to make.
    In my opinion, it cannot be said that his decision in this regard was
    unreasonable or clearly prejudicial to the appellant.

(iii)

Breach of the Rule in
Browne v. Dunn

[14]

I
    agree with the respondents submission that it is arguable whether trial
    counsel breached the rule in
Browne v. Dunn
by failing to cross-examine
    the complainant on the details of her alleged prior sexual contact with the
    appellant. The complainant categorically denied such contact during her
    evidence-in-chief. It is a reasonable inference that, if pressed on
    cross-examination on this issue, she would simply have done so again.

[15]

More
    importantly, this omission by trial counsel did not figure in the trial judges
    rejection of the appellants version of events.  On the contrary, the trial
    judge explicitly considered the appellants evidence that the complainant had
    consented to sexual intercourse with him and, alternatively, that he had an
    honest but mistaken belief in her consent, and rejected this evidence on its
    own terms.  For example, with respect to the defence of honest but mistaken
    belief in consent, the trial judge specifically addressed, and rejected, the
    appellants testimony that he and the complainant had had prior consensual
    sexual contact.  He stated, at pp. 52-53 of his reasons:

I have carefully reviewed what the accused said in his
    affidavit on the s. 276 motion which I am entitled to do.  I have carefully
    reviewed what he said in his evidence-in-chief on this point.  I reject his
    evidence entirely about prior sexual contact with the complainant.  I reject
    the accuseds idea that he had an honest but mistaken belief that  [the
    complainant] was consenting.

The trial judge later reiterated, at pp. 53-54: As I
    say, I think the accuseds supposed belief in what had happened before is
    dishonest.  I reject his evidence on that as I reject his evidence that she was
    consenting.

[16]

Accordingly,
    even assuming that trial counsel should have pursued the suggested line of
    cross-examination, no prejudice flowed to the appellant from his failure to do
    so.

(iv)

Unpreparedness for Trial

[17]

The
    appellant has failed to establish that trial counsels state of preparedness
    for trial resulted in a miscarriage of justice. Even assuming the appellants allegations
    are true, I am not persuaded that counsels conduct had any impact on the reliability
    of the verdict or trial fairness.

[18]

In
    any event, the appellants complaints regarding counsels preparation are
    undercut by counsels records. Trial counsels extensive dockets form part of
    the fresh evidence. They detail his numerous preparatory steps for trial,
    including several consultations with the appellant. That another defence
    counsel might have prepared for trial differently, or in a more extensive
    fashion, is irrelevant.

(v)

Failure to Advise the Appellant of his s. 11(f)
Charter
Rights

[19]

While
    a failure to advise an accused about the available modes of trial may constitute
    incompetence leading to a miscarriage of justice in the appropriate case, I
    conclude that the appellant has failed to demonstrate any such failure on the
    part of his trial counsel.

[20]

Contrary
    to the appellants contention, trial counsel swore in his affidavit that he
    advised the appellant of his right to a jury trial in the Superior Court and to
    request a preliminary inquiry. Counsels docket entries support this claim.

[21]

Parts
    of the trial record and fresh evidence also support trial counsels assertion
    that the decision to stand trial in the Ontario Court of Justice, before a
    judge alone, was driven by the following considerations: i) the appellants
    desire to obtain an early resolution of the prosecution; and ii) concerns that a
    jury trial would not serve the appellants interests, given his professed
    belief that a Canadian jury would favour a female complainant in a sexual
    assault case and his problematic views towards women.

(vi)

Failure to Arrange for a Spanish Language Interpreter

[22]

Finally,
    I address the appellants complaint that he was prejudiced by trial counsels
    failure to request a Spanish language interpreter in my discussion of his
    second ground of appeal.  As I will explain, I am not persuaded that this omission
    led to any impairment of trial fairness or that it undermines the reliability
    of the verdict.

[23]

The
    ineffective assistance of counsel claim therefore fails.

(4)

Section 14
Charter
Claim

[24]

The
    appellant maintains that he had great difficulty at trial understanding the questions
    and issues being put to him and in expressing himself, and that his
    difficulties were apparent to the trial judge. As a result, he submits, the
    trial judge was obliged to inquire about whether the appellant required
    interpreter assistance. He says the trial judges failure to appoint an
    interpreter, and defence counsels failure to request one, violated his s. 14
Charter
rights and deprived him of the opportunity to participate meaningfully in his
    own defence, to make full answer and defence and to benefit from a fair trial.

[25]

I
    would reject these submissions.

[26]

A
    right to interpreter assistance is not automatic. To establish a violation of
    s. 14, the appellant must demonstrate, on a balance of probabilities, that he
    was actually in need of such assistance at trial  i.e., that he did not
    understand or speak the language being used in court:
R. v. Tran
, [1994]
    2 S.C.R. 951, at pp. 979-80. I am not persuaded that the appellant has
    satisfied this burden.

[27]

The
    record in this case, read as a whole, amply demonstrates that the appellant
    understood the trial proceedings and made himself understood.

[28]

In
    support of his claim that he needed the assistance of an interpreter, the
    appellant relies heavily on one exchange with Crown counsel at trial. On
    cross-examination, Crown counsel inquired of the appellant whether he had asked
    the complainant if she wanted to have sex with [him]. The appellant replied:
    No. Why should I?  You dont  when youre  . The trial judge then
    interjected to ask the appellant if that was his answer. The appellant
    responded Sorry. Um  it just went with the flow. I dont know. Just  just
    went.

[29]

Before
    this court, the appellant maintains that his initial answer to this question
    was misunderstood and that he meant to say, Why would I? instead of Why
    should I? He asserts that, in his answer, he intended to convey that he did
    not ask the complainant whether she wanted to have sex with him because of the
    way things happened and because one thing led to another thing, and that his
    efforts at trial to explain or clarify his answer were frustrated by the trial
    judges interventions. He says that the trial judge relied on his misspoken
    words to reject his defence of honest but mistaken belief in consent and that
    this demonstrates that he was prejudiced in his defence by his English language
    difficulties.

[30]

I
    disagree.

[31]

The
    appellant clearly articulated his position to the trial judge during
    re-examination by his own counsel. When asked to explain what he meant when he
    said Why should I?, the appellant replied:

Like, I had a girlfriend before and I never  I never asked her
    like, if he  she wants to have sex.  I dont know if is [
sic
] the
    right word to say, like  like we went with the flow, right, like I was giving
    her a massage and thats  thats about it, right.  And one  one thing lead to
    another thing and then we start  we ended up having sex.

[32]

I
    would therefore reject the contention that the appellants exchange with Crown
    counsel established any need for interpreter assistance at trial. As his answer
    on re-examination indicates, the appellant had no difficulty in making his
    position clear to the trial judge. That the trial judge ultimately rejected the
    appellants testimony with respect to his belief in consent and also accepted
    the complainants testimony that she did not consent, does not establish that
    the appellant needed the assistance of an interpreter. It simply means that the
    trial judge, having observed the appellant and hearing his testimony, did not
    believe him.

[33]

It
    is also noteworthy that the appellant did not request the assistance of an
    interpreter at trial. Nor did he complain at any point about having difficulty
    understanding the questions posed to him or the testimony given, although the
    trial judge expressly invited him to do so at the outset of trial, should the
    need arise.

[34]

Instead,
    the appellant raises the issue of interpretation for the first time on appeal.
    The appellants s. 14
Charter
rights do not depend on his having asserted
    the right to interpreter assistance. Nonetheless, the timing of his interpreter
    complaint further undermines his assertion that he needed such assistance to
    properly comprehend the evidence or defend himself at trial. The comments of
    Lamer C.J. in
Tran
, at p. 982, are apposite in this case:

Where there are no outward indications which point to a lack of
    understanding on the accuseds part and where the right [to an interpreter] has
    not been invoked by the accused or by counsel (in the case of represented
    accused), these may be factors which are weighed against the accused if, after
    sitting quietly throughout the trial, the issue of interpretation is suddenly
    raised for the first time on appeal.

[35]

On
    a fair reading of the trial transcript, there were no positive indications that
    the appellant did not understand the proceedings or that he could not be
    understood for language-related reasons. Absent any such indication, the trial
    judge was not obliged, on his own motion, to conduct an inquiry into the
    appellants need for an interpreter or to order one:
Tran
, at pp.
    979-81.

[36]

In
    all these circumstances, I conclude that the interests of justice are not
    served by receiving the fresh evidence directed at the question whether the
    appellant required the assistance of an interpreter.

[37]

However,
    I note that the fresh evidence would not alter my conclusion on the s. 14
    claim, in any event. The appellants trial counsel swore in his evidence that
    he both advised and encouraged the appellant to exercise his right to interpreter
    assistance at trial. Despite this advice, the appellant refused the services of
    an interpreter on the grounds that he was a College Student, that he had come
    to Canada when he was young and that he knew English well. Counsels evidence
    also furnishes a reasonable explanation for his decision to accept the
    appellants refusal of an interpreter and the appellants assertion that his
    proficiency in English was good enough for trial. Finally, the proposed fresh
    evidence provides several examples of the appellants ability to understand and
    speak the English language and his practice to seek language assistance when he
    needs it.

[38]

In
    my view, therefore, the appellant has failed, both on the trial record and on
    the proposed fresh evidence, to establish that the lack of interpreter
    assistance at trial breached his s. 14
Charter
rights or occasioned any
    miscarriage of justice.

(5)

Disposition

[39]

This
    was a short, relatively straightforward trial where credibility was the central
    issue. The trial judge rejected the appellants account of events, for clear
    and cogent reasons. He accepted the complainants conflicting evidence, again
    for considered reasons. Her testimony was supported by other evidence regarding,
    among other matters, her post-event demeanour and actions. In all the
    circumstances, I agree with the Crown that the appellants conviction rested,
    not on any fault of the trial judge or defence counsel at trial, but on the
    evidence including, especially, that of the appellant himself.  Accordingly, the
    appellant has not demonstrated any miscarriage of justice.

[40]

For
    the reasons given, I would grant leave to admit the fresh evidence concerning
    the appellants ineffective assistance claim, deny leave to admit the fresh
    evidence directed at whether the appellant required interpreter assistance, and
    dismiss the appeal.

Released:

APR -6 2016                           E.A. Cronk J.A.

BM                                         I agree John
    Laskin J.A.

I agree B.
    Miller J.A.


