



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    that could identify the complainant or a witness shall not be published in any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. J.L., 2016 ONCA 221

DATE: 20160318

DOCKET: C58080

Doherty, Simmons and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.L.

Appellant

John Hale, for the appellant

Michael Fawcett, for the respondent

Heard: March 16, 2016

On appeal from the conviction entered on July 12, 2013 by
    Justice Gilles Renaud of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his convictions for two counts of sexual assault
    against the complainant J.M. He abandoned his sentence appeal.

[2]

The appellant was tried by a judge on three sexual assault charges. The
    first incident was alleged to have occurred in mid to late June 2011, the
    second between the 1
st
and 7
th
of July, 2011 and the
    third in the early morning of July 16, 2011. The appellant was found guilty of
    counts 1 and 3 and count 2 was dismissed. He was also acquitted of one charge
    of uttering threats.

[3]

The sexual assaults were alleged to have occurred in the building where
    J.M. and the appellant lived. The two socialized frequently and there were
    several incidents of consensual sexual contact.

[4]

The complainant asserted that there were three incidents where she had
    not consented to sexual contact with the appellant. The first occurred in the
    appellants apartment before any oral or vaginal intercourse had taken place
    between the two. The complainant testified that, after they both had been
    drinking heavily, she refused to perform oral sex on the appellant, blacked
    out, and woke up to find his penis in her mouth. The appellant told others that
    she bit his penis although she did not remember doing so.

[5]

Another incident took place after a celebration for the appellants
    birthday, when he entered the complainants apartment and had unprotected
    intercourse with her. She testified that she refused because he was dating
    another woman, B., and he forced himself on her and ejaculated inside her.

[6]

The appellants defence was that J.M. had consented to all of the sexual
    activity in question, and that she falsely accused him of sexual assault
    because he refused to break off his relationship with B. The appellant
    testified that, on the first occasion, the complainant willingly engaged in
    oral sex, for the first time, that he was giving her pointers, and that she bit
    him by mistake. He testified that neither of them had consumed any alcohol on
    that occasion. As for the incident involving sexual intercourse, the appellant testified
    that this occurred after the complainant promised him a birthday present, and
    that, although she was upset about his relationship with B., she initiated and
    consented to the intercourse. He acknowledged he had been drinking alcohol on
    that occasion, in contravention of a conditional sentence, but said he was not
    drunk.

[7]

The trial judge rejected the appellants evidence and that of the other
    defence witness. He found that the defence evidence did not raise a reasonable
    doubt. The appellant was an incredible witness. He lied in his testimony in
    chief about his alcohol consumption during the period in question,
    notwithstanding his own lawyers references to many alcohol-fuelled parties
    involving himself and the complainant, he acknowledged lying at his conditional
    sentence breach hearing, and he persisted in trying to distance himself from
    his obvious alcohol consumption. The trial judge accepted the testimony of the
    complainant and two other Crown witnesses, and found the appellant guilty
    beyond a reasonable doubt of two counts of sexual assault. He found the
    complainants evidence with respect to the remaining count too vague to satisfy
    the criminal standard of proof.

[8]

The only issue on appeal is whether the appellant was denied a fair
    trial as a result of the ineffective assistance of his trial counsel. Fresh
    evidence was submitted, on consent of the Crown, consisting of affidavits of
    the appellant, his common-law spouse and his trial counsel, C.S., and
    transcripts of their out-of-court examinations. The record contains a number of
    text messages between the appellant and the complainant following the second
    incident, which were part of the Crowns original disclosure.

[9]

The appellant contends that there were two significant problems with the
    representation provided by his former counsel.

[10]

First,
    he complains about counsels failure to confront the complainant with certain
    text messages during her cross-examination. He asserts that any reasonable
    trial counsel would have used the text messages to contradict the complainant
    with respect to aspects of her evidence, and to demonstrate that she consented
    to the sexual activity with the appellant on July 16, 2011, or at least to
    raise a reasonable doubt on the issue of consent.

[11]

Second,
    he contends that defence counsel conducted his examination-in-chief in a brief
    and perfunctory manner, reflecting that counsel was ill-prepared for the trial,
    with little knowledge or understanding of the details of what happened from the
    appellants perspective.

[12]

We
    do not give effect to these grounds of appeal. The appellant has failed to meet
    the test for establishing that his trial counsels performance fell outside the
    wide range of reasonable professional assistance and that there was a
    reasonable possibility that the result at trial would have been different but
    for his counsels alleged mistakes: see
R. v. Joanisse
, [1995] O.J.
    No. 2883, at paras. 71, 79-80.

[13]

With
    respect to the text messages, the appellants former counsel contends that the
    decision not to use this evidence at trial was a deliberate tactical decision,
    with which the appellant agreed. In our view, while other competent counsel
    might have decided to use the text messages in the complainants
    cross-examination, defence counsels decision not to use them was not outside
    the wide range of reasonable professional assistance. The appellant also
    fails to meet the prejudice test. Read as a whole, there is little in the text
    messages that would have assisted the appellant in his defence; to the
    contrary, several of the text messages, including some of the exchanges the
    appellant suggests are exculpatory, are corroborative of the complainants
    account of both assaults, and her lack of consent. There is no reasonable
    probability that the result would have been different had counsel used the text
    messages in cross-examining the complainant.

[14]

As
    for the argument with respect to his examination-in-chief, the appellant has
    not suggested what evidence he would have offered if his counsel had asked more
    detailed questions, that might have altered the result at his trial. The trial
    judges reasons demonstrate that he had a clear understanding of the
    appellants account of what transpired, including the relevant details, and why
    the appellant maintained that the incidents were consensual, which evidence he
    ultimately rejected.

[15]

For
    these reasons, the conviction appeal is dismissed and the sentence appeal is
    dismissed as abandoned.

Doherty J.A.

Janet Simmons J.A.

K. van Rensburg J.A.


