R v Neak Ngen, 2022 MBCA 83

Citation: R v Neak Ngen, 2022 MBCA 83 Date: 20221012 Docket: AR20-30-09400 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Janice L. leMaistre Madam Justice Karen I. Simonsen Madam Justice Lori T. Spivak BETWEEN: ) T. P. Sandulak ) for the Appellant ) ) R. D. LagimodièreHIS MAJESTY THE KING ) for the Respondent ) Respondent ) S. A. Inness and ) K. L.

Jones- and - ) on a watching brief ) for trial counselKHUL SIANG MUNG NEAK NGEN ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) October 4, 2022 ) ) Written reasons: ) October 12, 2022 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the victim(

s) or witness(es) (see

section 486.4 of the Criminal Code). LEMAISTRE JA (for the Court): [1] Following a trial, the accused was convicted of sexual assault, sexual interference, uttering threats and forcibleconfinement (the conviction for sexual assault was judicially stayed on the basis of the principles in Kienapple v The Queen, (SCC), [1975] 1 SCR 729). He now appeals his convictions. After the hearing, we dismissed the appeal with reasons tofollow.

These are those reasons. [2] The accused alleges that he received ineffective assistance from the lawyer who represented him at his preliminaryhearing and trial (trial counsel) and seeks to file as further evidence in support of this allegation his own affidavit. He attests that, despitehis requests, trial counsel failed to arrange for an interpreter to translate their communications and that he was not given the option totestify or, alternatively, that he did not understand that he was given this option because of his inability to comprehend trial counsel’sadvice without the assistance of an interpreter.

It is these assertions that ground the accused’s allegation of ineffective assistance ofcounsel. [3] Attached to the accused’s affidavit as exhibits are the results of an English language assessment dated July 16, 2015,indicating that he had “[b]asic” language abilities, and an excerpt from a document prepared by the Centre for Canadian LanguageBenchmarks explaining the scale of language abilities used in the assessment. [4] In response to the accused’s affidavit, trial counsel submitted his own affidavit on which he was cross-examined.

Heattests that he and the accused had numerous in-person meetings and phone calls, that they had no difficulties communicating, that theaccused never complained about his ability to speak or understand English, and that the accused did not ask to meet with him with theassistance of an interpreter until after he was convicted and taken into custody on new charges. Trial counsel also attests that, when he

and the accused reviewed the witness statements, the accused raised issues that he used in cross-examination. [5] Trial counsel also submitted an affidavit affirmed by Dr. Kasmira Sobkow who conducted a cognitive assessment (thecognitive assessment) on the accused prior to sentencing. Dr.

Sobkow was cross-examined on her affidavit. [6] The Crown submitted an affidavit attaching the video recording of the accused’s police statement and his pre-sentence report. [7] While we would admit the two exhibits attached to the accused’s affidavit that relate to his English languageassessment, as well as the fact that no interpreter was involved in his communications with trial counsel, we are not persuaded that theaccused has established that the balance of his affidavit is sufficiently credible to be admitted into evidence for the purpose ofdetermining the allegation of ineffective assistance of counsel. [8] First, all of the accused’s claims are categorically denied by trial counsel who, unlike the accused, recalled details oftheir meetings.

Second, despite the accused’s assertion that his use of English was limited, the evidence shows that he communicatedeffectively in English in court during both his trial and sentencing hearing, when being interviewed by a probation officer and during thecognitive assessment. Finally, Dr. Sobkow stated that one of the accused’s test scores indicated a “disingenuous or disengagedapproach.” She stated: While I cannot say for certain why his score was so low, such an extreme low score indicates that the [accused] would have had to haveunderstood my instructions to consistently produce the wrong answer.

This demonstrates a deviation from genuine effort and potentiallyan unsophisticated attempt to portray himself as cognitively impaired when he is not. [9] As for his assertion that trial counsel failed to meet his obligations regarding the accused’s right to testify, trialcounsel explained that the accused did not want to give evidence but, rather, “[h]e wanted to know whether [trial counsel] thought heshould give evidence.” Trial counsel also explained that a decision was made regarding the defence strategy prior to the first trial, whichwas adjourned.

He stated that they “determined before the beginning of the first trial that the plan was going to be that [trial counselwould] conduct the defence in a way that didn’t require [the accused] to give evidence.” Finally, trial counsel stated that he did not takewritten instructions regarding the decision that the accused would not testify because his practice was to take written instructions onlywhen a client provided instructions contrary to his advice. [10] While trial counsel admits that he did not use an interpreter when meeting with the accused, we are not persuaded thatthe accused has established the factual component of his allegations of ineffective assistance of counsel (see R v Le (TD), 2011 MBCA83 at para 189).

The evidence and the trial record support trial counsel’s contention that the accused was sufficiently proficient inEnglish such that he did not require an interpreter during their meetings to prepare for trial and that the accused understood he had theright to testify but accepted trial counsel’s advice that he should not. [11] More importantly, the accused has not demonstrated any prejudice or that trial counsel’s strong recommendation not totestify fell outside the “broad spectrum of professional judgment that might be considered reasonable” (R v White (1997), (ON CA), 114 CCC (3d) 225 at 247 (Ont CA), leave to appeal to SCC refused, 25983 (18 September 1997); see also R v Archer(2005), (ON CA), 202 CCC (3d) 60 at para 119 (Ont CA)). [12] In his affidavit, the accused asserts that he “would have given evidence at trial if [he] had been given the opportunity todo so.” However, he provides no details as to what that evidence would have been.

The only evidence regarding the accused’s purportedtestimony at trial is found in his police statement, his cross-examination, his comments at the sentencing hearing and trial counsel’saffidavit. On cross-examination (and according to trial counsel), the accused stated that he wanted to give the same information that hegave to police.

During his police statement, he denied the allegations and, in both that statement and his comments at the sentencinghearing, he said that, throughout the relevant period, the eight-year-old victim was asking to have sex with him. [13] While another lawyer may have recommended that the accused testify in his defence, the evidence does not establishthat it was unreasonable for trial counsel to take the approach he did.

Furthermore, in our view, the accused’s purported testimony couldnot reasonably have affected the outcome (see R v Zamrykut, 2017 MBCA 24 at para 3; and R v Fiorilli, 2021 ONCA 461 at para 59). [14] The circumstances of this appeal necessarily engage the “cautious approach to allegations against trial lawyers made byconvicted persons who are seeking to avoid lengthy jail terms” advocated by Doherty JA in Archer at para 141 (see also R v Mazhari-Ravesh, 2022 MBCA 63 at paras 62-63). [15] In our view, the accused has not established the facts material to his claim of ineffective assistance of counsel on thebalance of probabilities, nor has he shown that the trial was unfair or that the verdict was unreliable, resulting in a miscarriage of justice. [16] For these reasons, the appeal was dismissed.

JA JA

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