R v Zamrykut, 2017 MBCA 24

Citation: R v Zamrykut, 2017 MBCA 24 Date: 20170216 Docket: AR16-30-08613 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Madam Justice Holly C. Beard BETWEEN: ) J. R. Wolson, Q.C. andHER MAJESTY THE QUEEN ) K. J. Advent ) for the Appellant ) Respondent ) R. N. Malaviya and ) C. T. St. Croix- and - ) for the Respondent ) ROBERT MERCIL JOHN ZAMRYKUT ) Appeal heard: ) January 6, 2017 ) (Accused) Appellant ) Judgment delivered: ) February 16, 2017 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code). BEARD JA I. THE ISSUES [1] The accused is appealing his conviction on one count of sexual assault under

section 271 of the Criminal Code, thesole ground of appeal being that he failed to receive effective assistance of counsel that resulted in a miscarriage of justice. In support ofhis application, the accused filed a motion for the Court to admit fresh evidence. II. THE LAW [2] The legal principles that define a claim of ineffective assistance of counsel were recently reviewed and summarizedby this Court in R v Le (TD), 2011 MBCA 83, 270 ManR (2d) 82 as follows (at para 189): To recap, before a court will find incompetency affecting the reliability of the verdict, certain prerequisites must be met.

Theseprerequisites include a factual component (is there a factual foundation to the claim), a prejudice component (is there a miscarriage ofjustice) and a performance component (is there actual incompetence). As the Supreme Court of Canada said in G.D.B., [R v GDB, 2000SCC 22, [2000] 1 SCR 520] at para 29, there is no need to evaluate the performance component if the prejudice component has not beenproven. In order to determine whether an appeal will be successful on this ground, the following analysis must be undertaken:

(1) The factual component: an appellant must establish, on a balance of probabilities, the facts on which the claim of incompetency isbased. If that is not established, there is no need to go any further.

(2) The prejudice component: if the factual foundation has been made out, the court will, for the purposes of this component, assumeincompetence on the part of counsel. See Joanisse, [R v Joanisse (R) (1995), (ON CA), 85 OAC 186] at p. 62,Doherty J.A. At this stage, an appellant must establish, on a balance of probabilities, that the presumed incompetence resulted in amiscarriage of justice. If it did not, there is no need to go any further.

(3) The performance component: if it is determined that the reliability of the verdict was affected by the presumed incompetence, the

court will then consider whether the actions of counsel were, in fact, incompetent. At this stage of the analysis, the presumption revertsto “a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance” and the onus falls on anappellant to establish that it did not (G.D.B., at para. 27).

Again, that analysis is conducted without the benefit of hindsight. [3] Both counsel agree, as do I, that the applicable test regarding the admissibility of fresh evidence to be used todetermine a claim of ineffective assistance of counsel was recently set out by the British Columbia Court of Appeal in R v Aulakh (BS),2012 BCCA 340, 326 BCAC 177, as follows (at para 68): In

summary, I would propose to consider the appellant’s application to adduce fresh evidence in the following manner: 1. Determine if the fresh evidence is admissible under the rules of evidence (eg., no hearsay, speculation, opinion or mere argument). 2. If the fresh evidence complies with the rules of evidence and if it is apparent from the trial record that the fresh evidence could notreasonably have affected the result (assuming the allegations of ineffective representation could be established) there is no miscarriage ofjustice and the application to adduce fresh evidence and the appeal should be dismissed. 3.

If that determination is not apparent and the fresh evidence in support of the allegation of ineffective representation is relevant to thatissue and credible, admit the fresh evidence for the limited purpose of determining the allegation of ineffective representation, an issuethat was not adjudicated at trial. At this stage the fresh evidence will not be admissible to determine the substantive issue of whether amiscarriage of justice has occurred. 4.

In considering whether the performance component of the test for ineffective representation has been established, apply the standardof “reasonable professional judgment”, remembering that the appellant must establish the facts underlying the claim of ineffectiveassistance on a balance of probabilities. 5.

If the performance component of the ineffective assistance of counsel claim is established, consider whether the appellant hasestablished the prejudice component of the test, namely a “reasonable probability” that the outcome of the trial would have been differentif the appellant had received the effective assistance of counsel (i.e., if there has been a miscarriage of justice). If the answer is yes, thefresh evidence application should be granted, the appeal allowed, and a new trial ordered. If the answer is no, the fresh evidence and theappeal should both be dismissed. III.

THE TRIAL [4] The evidence in this case was very limited, consisting, essentially, of the testimony of the complainant and theaccused, together with text messages exchanged the next day. They were in agreement as to the events of earlier in the evening inquestion, including going to the accused’s friend’s apartment, the complainant getting undressed and into bed with the accused andengaging in some sexual contact. The complainant testified that she felt uncomfortable with continuing the sexual encounter because sheand her boyfriend had just broken up.

They agreed that they talked for a while and the accused attempted to kiss her and otherwisecontinue the sexual encounter. She said no, and they both testified that they went to sleep. According to the complainant, she awokesome time later when the accused was forcing vaginal intercourse on her, while he denied that that occurred. She said that, after thesexual assault, they went back to sleep together, in the same bed.

It is agreed that he drove her home the next morning. [5] Later that morning, they exchanged a few text messages, the meaning of which is contested, each offering a differentexplanation of the intention of the words used. The complainant was not cross-examined regarding the text messages. [6] Several hours later, the complainant called her ex-boyfriend to go over to his place and talk to him because“something really bad had happened” to her. She went over to talk to him, and it was he who suggested that she call the police.

He waspresent when she made her first statement to the police at his residence, but the police refused her request to let him be present during herlater video statement. The complainant was not cross-examined on any inconsistencies between the earlier statement and her testimonyat trial.

Trial counsel also decided not to ask any questions about the complainant’s relationship with her ex-boyfriend or why sheinsisted that he be present during questioning by police. [7] In addition to the accused and the complainant, the accused’s friend, his girlfriend and their baby were present in theapartment throughout the night.

Notwithstanding that the friend was interviewed by telephone by trial counsel and was prepared totestify that he was a very light sleeper and heard nothing during the night, defence counsel decided not to call him as a witness, eventhough the complainant testified at the preliminary inquiry that she was very loud in protesting the accused’s actions. [8] While counsel and the trial judge all recognized that the evidence had to be weighed in accordance with R v W(D), (SCC), [1991] 1 SCR 742, it is clear that credibility was the major issue, both as to whether the accused forced sexualintercourse on the complainant and the meaning to be attributed to the text messages.

For example, trial counsel argued at the trial: Just at the end of the day you’ve got her word versus his word and frankly you might even believe her. . . . . . . [S]o her recollection, her ability to recall what happened maybe it’s not even reliable, so at the end of the day there’s significantdoubt here in my view, there’s doubt, and you know this is a very serious charge with serious consequences . . .

And my submission toyou is that her evidence and this case against him is not safe to rest a conviction upon. … It’s her word versus his word, there’s nothing in the evidence, in my respectful view, that would show him to be lying to the courtand you have to acquit him.

[9] Trial counsel filed an affidavit to explain his trial strategy, which was to avoid any cross-examination oninconsistencies. He said that he was of the view that the accused would be more credible if his testimony was as consistent as possiblewith that of the complainant. He also said that he made a conscious decision not to call the friend to testify, being concerned about anunexplained possibility that the friend might say something unexpected that would hurt their case.

Finally, he was of the view that itwould be inappropriate to cross-examine the complainant regarding her ex-boyfriend. [10] Following this strategy, trial counsel did not cross-examine the complainant on any inconsistencies between her firststatement to the police made in the presence of her boyfriend, her testimony at the preliminary inquiry and her testimony at the trial,notwithstanding that some related to the “how” of the alleged sexual assault, such as whether she was wearing her dress and whetherthere was oral sex. [11] It is not surprising, then, that the trial judge came to the following conclusions: I turn then to the complainant’s evidence.

The only apparent inconsistencies in the complainant’s evidence identified by the defencewere inconsequential. . . . The complainant’s evidence was clear and unequivocal. She gave her evidence in a straightforward manner. There was noexaggeration or embellishment. . . . IV.

DECISION [12] The fresh evidence consists of materials that were disclosed to the trial counsel but not used, or not reasonably used,during the trial (the complainant’s reports and statements to the police, a sexual assault form, a forensic laboratory report and thepreliminary inquiry transcript of the complainant’s testimony) and the evidence of the accused’s friend that was available and known totrial counsel but not used during the trial. [13] The Crown agrees, as do I, that this evidence meets the test for admissibility of the fresh evidence for the limited use ofdetermining the claim of ineffective assistance of counsel. [14] The following finding from R v JB, 2011 ONCA 404 , is applicable to this case (at para 3): In this case, defence counsel failed to properly execute an effective cross-examination, including the abandonment of alternativeroutes to effective cross-examination in favour of a one-prong attack [authorities omitted].

Although credibility was the central issue inthe case, she also failed to cross-examine the complainant on prior inconsistent statements that would have supported the defenceposition the complainant was fabricating the allegations. [15] While trial counsel stated that his strategy was to avoid inconsistencies between the accused and the complainant, theinconsistencies that were avoided were between the complainant’s pre-trial statements, the preliminary inquiry testimony and her trialtestimony.

In addition, while he urged the trial judge to find the complainant not reliable, his trial strategy left no basis upon which thetrial judge could come to that conclusion. [16] Finally, his statement, in argument, that “frankly you might even believe her” was contrary to his argument that she wasnot reliable. [17] As defence counsel argued on appeal, while the trial counsel had a trial strategy, it was a strategy that was doomed tofail from the start, could only be described as unreasonable and did not “fall within the wide range of reasonable professional assistance”,which led to a miscarriage of justice. [18] I would, therefore, adopt the following findings and conclusions from JB and apply them to this appeal (at para 6): The purpose of appellate inquiry is not to grade counsel’s performance.

The appellant has shown that the acts or omissions of histrial counsel could not have been the result of reasonable professional judgment. The appellant was entitled to competent legalrepresentation at his trial, because effective representation by counsel enhances the reliability of the outcome of the adversarial trialprocess. In this case, the cumulative effect of the failures of counsel undermined the reliability of the verdict and resulted in amiscarriage of justice.

Further, the appearance of a fair trial was undermined by trial counsel’s failure to advocate for her client bypressing for the rejection of the complainant’s evidence. [19] Having found that the accused has established his claim of ineffective assistance of counsel on a balance ofprobabilities, I would allow his motion for fresh evidence and admit the evidence. I would allow the appeal, quash the conviction andorder a new trial. [20] I offer the following comment.

A finding of ineffective assistance of counsel in one case is not the equivalent of afinding that the lawyer is incompetent; rather, it is a finding that is limited to the case under review. Even the best counsel can, over the

course of a career, fall into error in a particular case, such that he or she has provided ineffective assistance in that case that undermined the reliability of the verdict and resulted in a miscarriage of justice. JA I agree: JA I agree: JA