Sex assault conviction quashed because lawyer failed to pursue evidence alleged victim lied
|National Post 06 Feb 2018 at 22:56|
A man who was convicted of sexually assaulting and threatening his on-and-off girlfriend nearly 15 years ago has been cleared of those crimes because his trial lawyer failed to pursue evidence that the alleged victim lied on the witness stand.
The calls the conviction of Ian Walendzewicz, who was convicted in 2013 after a decade on the run, a “miscarriage of justice.” But it also casts doubt on whether a retrial will or should ever happen, because Walendzewicz has already served his sentence.
The case turned on a controversial area of criminal law — whether the sexual history of a sexual assault complainant can be brought up in court.
Sexual history can never be used to support an inference of one of the “twin myths” of sexual assault law: that the complainant is more likely to have consented to the sexual act in question, or is less worthy of belief. But a lawyer can ask a judge for permission to cross-examine a complainant about past sexual activity if it is relevant to an issue at trial and of “significant probative value.”
In this case, the key piece of evidence was a questionnaire given to the complainant at a hospital where she sought treatment after reporting the alleged offences to police. One question was whether she had had sexual intercourse in the week prior to the assault. She said she had, and that it happened two days before the alleged assault.
The key problem is that Walendzewicz’s defence lawyer did not notice this highly important answer when he consented to admitting the questionnaire into evidence “for the truth of its contents.”
He did not make the necessary application to inquire into the complainant’s sexual history, and as a result was completely unprepared for the bombshell that came in her testimony, when Walendzewicz’s lawyer asked whether she had consented to sex with him.
Walendzewicz did not testify at trial, and claimed the sexual contact was consensual, and so the only issue was the complainant’s credibility. She claimed he arrived at her apartment drunk, broke her nose with a punch, threatened to burn her baby with soup, and sexually assaulted her.
“There is no way I would have been having sex, no,” the woman answered. She had given birth three weeks before the alleged assault, and said the question of consent did not make sense. “Three weeks after having a baby you are not having sex. You are supposed to be waiting at least six weeks. And trust me, the last thing on your mind after giving natural childbirth is sex.”
This claim, that she would not have consented to intercourse so soon after delivery, was an important part of the judge’s reasoning in convicting Walendzewicz.
His lawyer tried to bring up the contradictory questionnaire in closing arguments, but because he had not sought permission to ask the complainant about her sexual history — known as a section 276 order — the trial judge refused to consider it.
“We are satisfied that the appellant received ineffective representation at trial that undermines the reliability of the verdict and resulted in a miscarriage of justice,” according to the Ontario Court of Appeal ruling. “We allow the appeal, quash the conviction and order a new trial, if the Crown wishes to proceed with one in light of the appellant having served his sentence.”
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