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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 toxicologist’s report that was included in the Crown’s disclosure and that might have assisted in his defence. For the reasons that follow, I would allow the appeal.
The Trial Judge’s 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 mother’s 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 mother’s 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 complainant’s 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 complainant’s drinking problem, and her fiancé’s 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 complainant’s 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 McDonald’s. 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 complainant’s memory after that. She recalled being on her mother’s 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 counsel’s 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 complainant’s 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 appellant’s 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 counsel’s 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 court’s 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 appellant’s 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 Crown’s case, when he was of the view that the appellant’s evidence was not necessary because the complainant’s 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 counsel’s 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 appellant’s 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 appellant’s 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 counsel’s explanation that, had he known the full extent of the appellant’s 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 counsel’s 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 counsel’s 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 counsel’s 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 appellant’s 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 counsel’s 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 counsel’s contention that the appellant’s decision not to testify was taken only after the conclusion of the Crown’s 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 Crown’s 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 Crown’s 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 counsel’s 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 complainant’s evidence at trial and her police statement and preliminary inquiry evidence that were relevant to the questions of the complainant’s 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 complainant’s alcohol consumption and tolerance, which were relevant to her capacity to consent. Finally, and most significantly, counsel did not put to the complainant the appellant’s 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 counsel’s failure to introduce an expert toxicologist’s report at trial. The report, which was included in the Crown’s 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 appellant’s guilt or innocence of the offence charged. I would allow the appeal, quash the appellant’s 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.”