R. v. Chica (H.S.), 2016 ONCA 252

• Judge: Laskin, Cronk and Miller, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 07, 2016
• Jurisdiction: Ontario
• Citations: 2016 ONCA 252;(2016), 348 O.A.C. 12 (CA)

R. v. Chica (H.S.) (2016), 348 O.A.C. 12 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. AP.017

Her Majesty the Queen (respondent) v. Heli Samuel Chica (appellant)

(C57416; 2016 ONCA 252)

Indexed As: R. v. Chica (H.S.)

Ontario Court of Appeal

Laskin, Cronk and Miller, JJ.A.

April 6, 2016.

Summary:

The accused appealed his conviction for one count of sexual assault. He submitted that his counsel's assistance at trial was ineffective, compromising his right to make full answer and defence and leading to a miscarriage of justice. Second, he contended, for the first time on appeal, that his right to an interpreter under s. 14 of the Charter was breached because he was a native Spanish speaker and his trial was conducted in English, without an interpreter's assistance.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 2803

Language - Assistance of an interpreter - In criminal proceedings - The Ontario Court of Appeal held that "A right to interpreter assistance is not automatic. To establish a violation of s. 14 [of the Charter], 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. ... The record in this case, read as a whole, amply demonstrates that the appellant understood the trial proceedings and made himself understood." - See paragraphs 26 and 27.

Criminal Law - Topic 4989.9

Appeals - Indictable offences - Powers of Court of Appeal - Appeals re ineffective assistance of counsel (incl. procedural protocols) - The accused appealed his conviction for one count of sexual assault - He alleged, inter alia, ineffective assistance of counsel - He argued, inter alia, that trial counsel was generally unprepared for trial - The Ontario Court of Appeal dismissed the appeal - The appellant failed to establish that trial counsel's state of preparedness for trial resulted in a miscarriage of justice - Even assuming the appellant's allegations were true, the court was not persuaded that counsel's conduct had any impact on the reliability of the verdict or trial fairness - In any event, the appellant's complaints regarding counsel's preparation were undercut by counsel's records - His extensive dockets, part of the fresh evidence that the court admitted on this issue, detailed 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, was irrelevant - See paragraphs 17 and 18.

Criminal Law - Topic 4989.9

Appeals - Indictable offences - Powers of Court of Appeal - Appeals re ineffective assistance of counsel (incl. procedural protocols) - The appellant appealed his conviction alleging, inter alia, ineffective assistance of counsel - The Ontario Court of Appeal stated that "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 counsel's acts or omissions constituted incompetence, measured on a reasonableness standard and in light of a strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance (the 'performance component'); and iii) that counsel's ineffective representation caused a miscarriage of justice by resulting in procedural unfairness or undermining the reliability of the verdict (the 'prejudice component') ... 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 counsel's performance" - See paragraphs 7 and 8.

Criminal Law - Topic 5416

Evidence and witnesses - Witnesses - Cross-examination of Crown witnesses - [See Evidence - Topic 4716 ].

Evidence - Topic 4716

Witnesses - Examination - Cross-examination - On testimony to be contradicted - The accused appealed his conviction for one count of sexual assault - He alleged, inter alia, ineffective assistance of counsel - Among other things, he alleged that counsel 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 appellant's ability to challenge the complainant's credibility and make out the defence of honest but mistaken belief in consent - The Ontario Court of Appeal dismissed the appeal - It was 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 was a reasonable inference that, if pressed on cross-examination on this issue, she would simply have done so again - More importantly, this omission did not figure in the trial judge's rejection of the appellant's version of events - On the contrary, the trial judge explicitly considered the appellant's 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 appellant's testimony that he and the complainant had had prior consensual sexual contact - See paragraphs 14 to 16.

Counsel:

Elmé G. Schmid and Lina Anani, for the appellant;

Mabel Lai, for the respondent.

This appeal was heard on March 7, 2016, by Laskin, Cronk and Miller, JJ.A., of the Ontario Court of Appeal. Cronk, J.A., delivered the following reasons for judgment for the court on April 6, 2016.