



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), (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    that any information that could identify the complainant or a witness shall not
    be published in any document or broadcast or transmitted in any way, in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, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)      an offence
    under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on
    female), 156 (indecent assault on male) or 245 (common assault) or subsection
    246(1) (assault with intent) of the
Criminal Code
, chapter C-34 of the
    Revised Statutes of Canada, 1970, as it read immediately before January 4,
    1983, or

(iii)     an offence under
    subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual
    intercourse with a female between 14 and 16) or section 151 (seduction of a
    female between 16 and 18), 153 (sexual intercourse with step-daughter), 155
    (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

(b)      two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b)      on application
    made by the complainant, the prosecutor or any such witness, 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).

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. E. H., 2017 ONCA 423

DATE: 20170524

DOCKET: C57809

Rouleau, Trotter and
    Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

E. H.

Appellant

Erika Chozik, for the appellant

Alison Wheeler, for the respondent

Heard: May 16, 2017

On appeal from the conviction entered on August 8, 2013 by
    Justice E.A. Ready of the Ontario Court of Justice, and from the sentence
    imposed on June 9, 2014  by Justice E.A. Ready.

REASONS FOR DECISION

Introduction

[1]

On May 16, 2017, we allowed the appeal with
    reasons to follow. These reasons explain why the appeal was allowed.

[2]

E. H. was found guilty of two counts of sexual
    assault and two counts of sexual interference. The offences were alleged to
    have occurred between 2002 and 2004. The complainants were the two daughters of
    his girlfriend at the time. They were 7-9 and 12-14 years old at the time of
    the offences, and 16 and 22 at trial.

[3]

The complainants testified that the appellant
    touched them in their bedrooms at night. The appellant testified and denied the
    allegations. The trial judge rejected his evidence. She accepted the complainants'
    evidence and concluded that the appellant's guilt was established beyond a
    reasonable doubt. The appellant was sentenced to 2 years less one-day
    imprisonment.

The Appeal

[4]

The appellant advances a number of grounds of
    appeal focused on the trial judge's credibility assessments. He argues that his
    sentence was too harsh. The appellant also alleges ineffective assistance of
    his trial counsel (not Ms. Chozik). Given that we allow the appeal on this
    basis, it is not necessary to address the other grounds of appeal, or the
    sentence appeal

[5]

The fresh evidence establishes that trial
    counsel failed to view the three-hour statement that the appellant gave to the
    police. The DVD containing the statement was defective. Trial counsel did not
    request another copy from the Crown. He relied upon a synopsis of the statement
    prepared by the police. He failed to review the statement with the appellant,
    despite his repeated requests. At the end of the Crown's case, trial counsel
    spoke to the Crown and conceded that the statement was voluntary and that the appellant
    could be cross-examined on it. He had not discussed with the appellant the
    circumstances surrounding the giving of the statement and he failed to forewarn
    the appellant of what was about to happen.

[6]

The appellant was taken by surprise when he was cross-examined
    on his statement, which he had given some 17 months earlier. He had difficulty
    recalling what he said to the police. He was cross-examined on isolated
    passages from the lengthy statement. He tried to explain the circumstances
    surrounding the giving of the statement and what he meant in the passages that
    were put to him. The trial Crown (not Ms. Wheeler) instructed the appellant to
    answer her questions more directly and to stop going off topic. Unaware of the
    details of the statement, trial counsel did not intervene, nor was he able to
    utilize re-examination to place the isolated passages in their proper context.

[7]

This aspect of the appellant's cross-examination
    was critical to the trial judge's rejection of his evidence. She found the
    appellant was "very evasive to the questions that were put to him" and had "his
    own agenda to get across to the court whenever he could." The trial judge
    accepted the Crown's submission that the appellant's answers were discrepant
    with his statement, holding: "These contradictions make his evidence at trial
    not believable" and "I cannot accept his evidence as credible due to these
    contradictions."

[8]

As part of his claim of ineffective assistance
    of trial counsel, the appellant swore an affidavit and was cross-examined. He
    explained the circumstances leading up to his attendance at the police station.
    He thought he was going to discuss a completely different incident, one that he
    had previously reported. He was taken by surprise when the police questioned
    him about offences alleged to have occurred many years earlier, in 2002 and
    2004.

[9]

The appellant testified that he was shocked to
    be cross-examined on his statement at trial. He felt unprepared and believed
    that it impacted adversely on his performance as a witness and his ability to
    explain the alleged inconsistencies that were put to him in cross-examination.
    Indeed, the appellant swears that his statement was not inconsistent with his
    trial testimony.

[10]

The appellant's background is relevant to what
    happened in this case. He came to Canada as a refugee from Iraq in 1998. English
    is not his first language. He was not offered an interpreter during his
    interview with the police. It is apparent that he struggled to understand many
    of the officer's questions. Although the appellant had the benefit of an interpreter
    at trial, he still struggled with terminology.

[11]

Ms. Wheeler does not dispute that the
    performance of trial counsel fell below the standard of reasonable professional
    assistance in a criminal case. We agree with this fair assessment. Given the
    live issues at trial and the circumstances under which the statement was
    obtained, the appellant has established that trial counsel's conduct fell short
    of what can reasonably expected: see
R. v. B. (G.B.)
,
2000 SCC 22, at para. 24.

[12]

Notwithstanding this failing, Ms. Wheeler urges
    us to be hesitant in concluding that the appellant has suffered prejudice in a
    manner that affected the outcome of his case.

[13]

The appellant was significantly prejudiced.
    Without notice from his counsel, he was cross-examined on a statement he gave
    without an interpreter 17-months earlier. He was totally unprepared for what
    happened. So was his trial counsel, who was unable to ensure that the appellant
    had a proper opportunity to explain the alleged inconsistencies. Nevertheless,
    and through no fault of her own, the trial judge rejected the appellant's
    evidence because of these "contradictions." Her findings, which were
    unequivocal and unqualified, were a reasonable response to the evidence before
    her. However, with hindsight, we now know that: (1) the appellant's very poor
    performance was due to trial counsel's ineffectiveness; and (2) the apparent "contradictions"
    between the appellant's statement and his trial evidence would have been either
    explained away or made more benign had the appellant been properly prepared, or
    had trial counsel been equipped to re-examine on these areas.

[14]

We are satisfied that the appellant has established
    a "reasonable possibility" that the outcome of the trial would have been
    different had trial counsel properly discharged his professional obligations:
    see
R. v. Joanisse
(1995), 102 C.C.C. (3d) 35
    (Ont. C.A.), p. 64 and
R. v. B. (M.)
,
2009
    ONCA 524, at paras. 10 and 29.

Disposition

[15]

The appeal is allowed, the convictions are set
    aside and a new trial is ordered.

"Paul Rouleau J.A."

"G.T. Trotter J.A."

"David Paciocco J.A."


