



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Cubillan, 2018 ONCA 811

DATE: 20181010

DOCKET: C62901

Sharpe, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adonay Cubillan

Appellant

Margaret Bojanowska, for the appellant

Rebecca De Filippis, for the respondent

Heard: October 2, 2018

On appeal from the conviction entered on February 13,
    2015, by Justice Graeme Mew of the Superior Court of Justice, sitting without a
    jury, with reasons reported at 2015 ONSC 969.

van Rensburg J.A.:

[1]

The appellant appeals his conviction for sexual assault. He has served his
    custodial sentence of two years less a day. There is one ground of appeal: that
    the appellant was denied effective representation by his trial counsel,
    resulting in a miscarriage of justice. In particular, the appellant contends
    that trial counsel deprived him of the choice to testify, conducted an
    ineffective cross-examination of the complainant, and failed to introduce a
    toxicologists report that was included in the Crowns disclosure and that
    might have assisted in his defence. For the reasons that follow, I would allow
    the appeal.

The Trial Judges Reasons

[2]

The sole issue at trial was consent: whether the complainant, a
    self-described alcoholic who had consumed a great deal of alcohol in the 48
    hours preceding the events in question, had the capacity to consent, and
    whether she in fact consented to the sexual intercourse that was admitted to
    have occurred.

[3]

The appellant was convicted after a two day trial. The trial judge began
    his reasons by noting that his findings of fact were based on the evidence of
    the complainant and her mother, as well as on certain agreed facts, and that
    the appellant did not testify.

[4]

The complainant, who was 34 years old when she testified, was staying
    temporarily at her mothers apartment. Her mother was away for a few days. The
    complainant had been drinking heavily and steadily and had not slept in the
    previous two days. Two friends were with her in the apartment, drinking beer,
    when two of her mothers friends (a long-standing friend, F.X., and the
    appellant) arrived at the door with groceries. The complainant had only met the
    appellant once, when he and F.X. had come to the apartment for dinner one or
    two weeks earlier. When they were told the complainants mother was not there,
    F.X. left, and the complainant invited the appellant in to take his telephone
    number for her mother. He stayed and socialized with the complainant and her
    friends. After the two friends left, the complainant and the appellant watched
    videos and continued to talk. They discussed the complainants drinking
    problem, and her fiancés recent death. The complainant, who was sitting on a
    chair, became tired, so the appellant moved from the couch so that she could
    lie down. (I note that, until this point, the complainants account in most respects
    is consistent with the account provided by the appellant to the police upon his
    arrest and the handwritten account he provided to his trial counsel.)

[5]

According to the complainant, while she was on the couch, the appellant
    offered to get her food and went to McDonalds. She did not accompany him as
    she could not physically have walked anywhere. She thought she had fallen
    asleep while he was gone, but she recalled eating some of the food. There were
    gaps in the complainants memory after that. She recalled being on her mothers
    bed but did not know how she got there. The appellant was on top of her. He was
    trying to remove her tights. She remembered the appellant kissing her nipple,
    lying on top of her, and then being penetrated. Although she moved her head to
    avoid being kissed, she was unable to move the rest of her body. She had only
    intermittent memories of the incident. She did not recall saying anything while
    this was going on. Her next memory was waking up. The appellant was sitting on
    her bed, and was going to leave but asked if she wanted him to take the dog out
    first. She told him to leave, got up, and went to the bathroom. She realized
    she was only wearing a pair of shorts, and had no idea how the shorts got on
    her. She noticed discharge and concluded that the appellant had had unprotected
    sex with her. The complainant denied that there had been any flirting, touching,
    or physical intimacy leading up to the incident, and she denied consenting to
    the penetration or touching.

[6]

In the following days, the appellant showed up at the apartment twice and
    made multiple attempts to reach her on her cell phone, leaving messages calling
    her my love, and asking whether she was okay and needed food or money. She
    avoided him. After her mother got a call from the appellant asking about her
    trip, the complainant told her about the assault. Her mother had an altercation
    with F.X. and the appellant on the street. Soon afterwards, the complainant
    went to the police.

[7]

The trial judge concluded that the complainant was a credible witness.
    Notwithstanding trial counsels submission that the post-incident calls and
    messages were not the actions of someone who had done something wrong, the
    trial judge noted that there was no evidence that the complainant did anything
    that could reasonably have conveyed that she was consenting, and that on her
    uncontradicted evidence there was no flirting or sexual overtures at any time
    prior to the incident. He accepted that she had not initiated the sexual
    activity. He accepted that the complainant had passed out during the incident,
    and he rejected the assertion that the complainants lack of active resistance
    equated to consent. The trial judge also concluded that the complainant lacked
    capacity to consent, and that at best, she was intermittently conscious but not
    to a degree necessary to be able to consent. The trial judge noted that there
    was no evidence of the appellants state of mind before and during the event,
    and that the post-incident activities were not capable of raising a reasonable
    doubt.

Ineffective Assistance of Counsel

[8]

The test for ineffective assistance of counsel is set out in
R. v.
    Joanisse
(1995)
, 102
    C.C.C. (3d) 35 (Ont. C.A.), at pp. 59-61, leave to appeal refused, [1996]
    S.C.C.A. No. 347. The appellant must establish on a balance of probabilities
    that trial counsels conduct fell below the standard of reasonable professional
    assistance and that the ineffective representation resulted in a miscarriage of
    justice. A miscarriage of justice occurs when the ineffective representation undermine[s]
    the appearance of the fairness of the trial, or the reliability of the verdict:
R. v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 120. The
    unreliability of a verdict is made out where the appellant can establish that
    there is a reasonable probability that the verdict would have been different
    had he received effective representation. A reasonable probability is one that
    is sufficiently strong to undermine the appellate courts confidence in the
    validity of the verdict:
R. v. Dunbar
, 2007 ONCA 840, at para. 23.

[9]

The appellant raises a number of concerns about his representation at
    trial. The overriding theme of his submissions is that his trial counsel did
    not put his version of the events  which he had set out in his police
    statement and a handwritten account provided to his counsel  before the court.
    There was no significant dispute about what occurred up to the point when the
    complainant lay down on the couch, or about his actions the following day. The
    appellant contends, however, that the complainant had accompanied him outside
    the apartment more than once to get food and beer. He also claims that,
    although she drank a few beers when he was there and consumed cocaine, she did
    not appear to be intoxicated and was never incapacitated. He asserts he was
    sleeping on the couch and that the complainant initiated the sexual intercourse
    by calling him into the bedroom to kill a cockroach. He found her naked on the
    bed. She performed oral sex on him and they engaged in vaginal intercourse.

[10]

The
    appellants principal argument is that his trial counsel prevented him from
    testifying. Crown counsel concedes that, if this ground is made out, the
    appellant was denied a fair trial, and the appeal should be allowed. I will
    address this issue first as it has merit and is the basis on which I would
    allow the appeal.

Failure to Permit the Appellant to Testify

[11]

The
    determination of this ground requires the court to make findings of fact, based
    on the expanded record that is before the court, which includes the affidavits
    of the appellant and trial counsel, and the transcripts of and exhibits to
    their cross-examinations.

[12]

The
    appellant asserts that trial counsel told him not to testify. He contends that
    he always wanted to put his version of events before the court, but was not
    given the opportunity to do so. He says that he was never told that he had the
    right to testify, that it was his decision, or that it was in his best interest
    to testify. He claims that trial counsel told him to keep quiet and not say anything or the outcome would be worse for him.

[13]

Trial
    counsel insists that, while it was his strong opinion throughout the
    proceedings that the appellant should not testify, they discussed the issue on
    several occasions, and ultimately he left the decision to the appellant, who
    followed his advice. Trial counsel contends that the final decision that the
    appellant would not testify was made only after the conclusion of the Crowns
    case, when he was of the view that the appellants evidence was not necessary
    because the complainants evidence was sufficient to raise a reasonable doubt.
    While he may not have had time to discuss the issue with the appellant, nothing
    had occurred to change his opinion that the appellant should not testify.

[14]

It
    is a fundamental principle that, while counsel must provide advice about
    whether a client should testify, the ultimate determination must be made by the
    client. If the appellant can show his counsel made the decision he would not
    testify and that he would have testified if he had been given the choice, it
    must be accepted that his testimony could have affected the result, thereby
    establishing that a miscarriage of justice occurred:
Archer
, at para.
    139.

[15]

I
    am satisfied on a balance of probabilities that the appellant was denied the
    opportunity to testify in his own defence in his sexual assault trial.

[16]

First,
    I cannot accept Crown counsels submission that the appellant should be
    disbelieved. While there is always a risk of hindsight through the bars of a
    jail cell (
Archer
, at para. 142), the appellants account is
    credible, and in many respects is not denied by trial counsel. The fact that
    the appellant did not allege ineffective assistance of counsel in his inmate
    notice of appeal is not surprising, as trial counsel prepared the notice for
    him. And it is consistent with his evidence that he did not appreciate that the
    choice to testify was his to make.

[17]

Second,
    in a letter responding to the appellants appeal counsel, trial counsel stated that
    the decision about [the appellant] not testifying was mine and was taken at
    his trial, right after the complainant finished her testimony. I am not
    persuaded by trial counsels explanation that, had he known the full extent of
    the appellants allegations, he would have been more careful and explained that
    he always made it clear to the appellant that he had the right to testify. Trial
    counsels claim that he was not as careful as he ought to have been with the
    wording of his letter is not convincing. This was not, as Crown counsel asserts,
    an informal response to an informal letter. Other aspects of trial counsels
    evidence on cross-examination are consistent with the letter. He testified, for
    example, that it was not clear whether the appellant wanted to testify and he
    could not remember if he had asked the appellant whether or not he wanted to
    testify.

[18]

Third,
    there was nothing in trial counsels file that would support his contention
    that he had informed the appellant that he had the right to testify and that he
    had given him the choice. There was no signed direction, and there were no file
    notes in any of the documents trial counsel produced in response to the request
    for his file that indicated dates of meetings or what was discussed with the
    appellant. Counsel maintained no dockets and he did not issue any accounts
    (although he was paid in cash for his services). It was only on the day of his
    cross-examination that trial counsel attended with a three page typewritten
    chronology, showing specific dates of meetings, with two references to
    discussions about the appellants right to testify. I am unable to accept the
    contention that this document was created on an ongoing basis and was an
    accurate account of trial counsels dealings in this matter. If that were the
    case, trial counsel would reasonably have produced the document immediately
    when he responded to appeal and Crown counsel, and not over 18 months after he
    was asked for notes of his discussions with the appellant about testifying and some
    six weeks after he swore his affidavit responding to the allegations of
    ineffective assistance.

[19]

Finally,
    the record is inconsistent with trial counsels contention that the appellants
    decision not to testify was taken only after the conclusion of the Crowns
    case. In order for the appellant to testify about what transpired leading up
    to, during, and following the sexual intercourse, his lawyer was required to
    comply with the rule in
Browne v. Dunn
, and first put the contrary
    version to the complainant in her cross-examination. The fact that there was no
    attempt on the part of trial counsel to do so is inconsistent with his
    assertion that the decision as to whether the appellant would testify was left
    open until the end of the Crowns case.

[20]

The
    record discloses that trial counsel was not rushed, as he contends, but that he
    immediately informed the court that the appellant would not be testifying. He
    reconfirmed this without requesting an opportunity to converse with his client
    even after Crown counsel, in handing up her case authorities, suggested that
    defence counsel might want to review the cases and reconsider whether to call
    evidence.

[21]

Trial
    counsel asserted that it was his strong opinion all along that the appellant
    should not testify and be subject to cross-examination. He did not, however,
    offer any reason for this assessment, other than that the appellant had never
    testified in court before.  The respondent acknowledges that the appellant
    provided a consistent account of the events in question to the police upon his
    arrest and in the handwritten account he provided to trial counsel. He had no
    criminal record. On this record, it is difficult to understand why trial
    counsel was so strongly of the view that the appellant should not testify.
    Indeed, once the Crowns case was in, it ought to have been obvious to trial
    counsel that the evidence that was before the court was unlikely on its own to
    raise a reasonable doubt.

[22]

On
    this record, I am satisfied that the appellant was denied the opportunity to
    testify, or at least to make his own decision about whether or not to testify
    in this trial, and that in the circumstances of this case, this amounted to a
    miscarriage of justice.

Other Issues

[23]

While
    I would allow the appeal based on trial counsels failure to provide the
    appellant the opportunity to testify, I agree with the appellant that there
    were other serious deficiencies in his representation by trial counsel.

[24]

Trial
    counsel did not conduct an effective cross-examination of the complainant. He
    failed to explore several material inconsistencies between the complainants
    evidence at trial and her police statement and preliminary inquiry evidence
    that were relevant to the questions of the complainants capacity to consent
    and whether she had consented to the sexual intercourse. Where counsel did
    attempt to confront the complainant with some inconsistencies, he did not put
    the statements to her, and was ineffectual. Counsel did not explore the
    question of the complainants alcohol consumption and tolerance, which were
    relevant to her capacity to consent. Finally, and most significantly, counsel
    did not put to the complainant the appellants version of events. Ultimately,
    trial counsel, in his closing submissions, conceded that the complainant was a
    reliable witness while there were a couple of issues there on credibility.

[25]

The
    manner in which trial counsel conducted the cross-examination does not suggest
    that there was any proper exercise of professional judgment. Rather, trial
    counsel appears to have proceeded on a mistaken understanding of the law. This
    is revealed both in his closing arguments and in the fresh evidence. His
    argument was that the complainant admitted she was awake, and that she had not
    given evidence that she had refused the sexual act. He relied on the assertion
    that a drunken consent is still consent.

[26]

The
    appellant also points to trial counsels failure to introduce an expert
    toxicologists report at trial. The report, which was included in the Crowns
    disclosure, contained two opinions that might have assisted the appellant in
    his defence: first, that chronic heavy users of alcohol may show fewer signs of
    intoxication due to tolerance; and second, that blackouts could occur without
    loss of consciousness. Indeed, trial counsel referred to the report in his
    closing submissions, appearing to believe that it was already in evidence. It
    is impossible to say whether such evidence, if admitted at trial, would have
    affected the outcome. What is apparent is that counsel overlooked this
    potential evidence, and may even have failed to appreciate its importance.

Conclusion

[27]

I
    am satisfied that this is a case where the appellant was denied representation
    at trial by competent counsel and that this caused a miscarriage of justice. I
    would emphasize that this is not a determination of the appellants guilt or
    innocence of the offence charged. I would allow the appeal, quash the
    appellants conviction, and order a new trial.

Released: October 10, 2018

K. van Rensburg J.A.

I agree. Robert J. Sharpe J.A.

I agree. P. Lauwers J.A.


