Ontario Court of Appeal to quash sex-assault conviction: A man found guilty for the brutal sexual attack of a brand new mommy has had his conviction quashed after Ontario’s top court on Monday agreed his lawyer had failed him.
In deciding a miscarriage of justice had occurred, the Court of Appeal stated Ian Walendzewicz could have succeeded in undermining the complainant’s credibility if he had a successful lawyer — usually a challenging argument for an accused to create.
Evidence at trial, based on the complainant’s testimony, was that the guy with whom she had an off and on relationship came drunk at her flat on a night in October 2003.
Ontario Court of Appeal to quash a sex-assault conviction
The woman alleged Walendzewicz struck her in the face and broke her nose, threatened to pour hot soup on her and her three-week-old baby, then raped her, court documents show. She reported the alleged incident to authorities and went into the hospital, where she completed a sexual attack questionnaire.
Among the answers that she gave on the form — entered into evidence by the prosecution with agreement contrary to the offender — was that she’d had protected sex just two days before the alleged assault — a response Walendzewicz’s attorney didn’t detect.
Walendzewicz’s defense — he did not testify — switched on his argument that the girl had consented to sex with him but during her trial testimony, she was determined she would not have done so that soon after giving birth.
“Three weeks after having a baby you are not having sex,” the girl testified, according to a transcript. “You are supposed to be waiting six weeks. And trust me, the very last thing on your mind after giving natural childbirth is gender .”
Justice Ferguson accepted her testimony as truthful, and convicted the accused, and then in his mid-30s, of sexual assault, assault causing bodily injury, and uttering threats.
Walendzewicz’s appeal turned to the complainant’s answer on the hospital survey.
Since he had failed to notice her earlier statement, Walendzewicz’s attorney didn’t bring an application to cross-examine the girl on the answer, which could have exposed an apparent contradiction about her unwillingness to have intercourse.
The lawyer did belatedly try to mention the questionnaire in closing arguments, but Ferguson ruled that out of bounds because he’d failed to raise it sooner.
For its part, the prosecution argued on appeal the survey did not prove the woman had consented to sex two days before the alleged attack. The Crown claimed that cross-examining her regarding the questionnaire would just have elicited more proof of his misuse of this woman.
“The complainant sought to corroborate her position she didn’t consent by providing the testimony (she gave),” the Appeal Court said. “This testimony while on the witness stand at trial was central to her credibility, which had been the only live issue at trial.”
The mere fact his defense made no effort to attempt to undermine her credibility by challenging her within the poll, the court said, was enough to show Walendzewicz had unsuccessful trial counsel.
“We’re satisfied that the appellant received ineffective representation at trial which undermines the trustworthiness of the verdict and resulted in a miscarriage of justice,” that the Appeal Court explained.