R. v. Trejo

2020 BCCA 302 R. v. Trejo

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Trejo, 2020 BCCA 302 Date: 20201106 Docket: CA45587 Between: Regina Respondent And Adrian Caballero Trejo Appellant Restriction on publication: A publication ban has been imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting, or transmission in any way of any information that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. Pursuant to s. 16(4) of the Sex Offender Information and Registration Act [SOIRA], no person shall disclose any information that is collected pursuant to an order under SOIRA or the fact that information relating to a person is collected under SOIRA. Before: The Honourable Madam Justice Newbury The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Willcock On appeal from: An order of the Supreme Court of British Columbia, dated February 28, 2018 (conviction) (R. v. Trejo, Vancouver Docket 27340). Counsel for the Appellant: S.R. Wright Counsel for the Respondent: M.T. Ainslie, Q.C. Place and Date of Hearing: Vancouver, British Columbia September 25, 2020 Place and Date of Judgment: Vancouver, British Columbia November 6, 2020 Written Reasons by: The Honourable Madam Justice MacKenzie Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Willcock Summary: Primarily on the basis

of ineffective assistance of counsel, the appellant appeals his conviction by a jury of sexual assault. Held: Appeal dismissed. The fresh evidence adduced by the appellant fails to establish the appellant's claim. None of the individual alleged instances of incompetence, nor their cumulative effect prejudiced the appellant. Although a limiting instruction should have been given to the jury regarding certain cell phone tracking "ping" evidence, this minor error did not prejudice the appellant. This error is saved by the curative proviso provided in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C‑46. The appellant takes issue with minor matters that could not reasonably have affected the jury's verdict. While he wishes the evidence in certain areas had been elicited differently or that counsel had made alternative arguments on marginal issues, these are not bases on which a claim of ineffective assistance of counsel may succeed. There is no reasonable probability that a miscarriage of justice occurred at trial. Reasons for Judgment of the Honourable Madam Justice MacKenzie: [1] Adrian Caballero Trejo appeals his conviction by a jury of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C‑46. He appeals primarily on the basis that he was denied the effective assistance of counsel. The appellant contends the failure of his trial counsel ("counsel")

to provide competent assistance resulted in a miscarriage of justice by leaving critical evidence untested, failing to lead potentially helpful evidence, and emphasizing unhelpful evidence. New counsel for the appellant on appeal tenders fresh evidence in support of these allegations. The appellant also submits the trial judge erred by failing to provide a limiting instruction to the jury regarding certain cell phone tracking "ping" evidence. [2] The appellant gave the police a pre‑trial statement denying the allegation of sexual intercourse and said the complainant was "drunk". At trial, the appellant admitted the sexual intercourse, but testified it was consensual and the complainant was not impaired. The complainant, on the other hand, testified she did not consent to sexual intercourse and was intoxicated. [3] In my view, the fresh evidence adduced by the appellant fails to establish a reasonable probability that a miscarriage of justice occurred at trial. While the trial judge erred in failing to provide a limiting instruction regarding certain cell phone "ping" evidence, I would apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code as the error was inconsequential. [4] For the reasons that follow, I would grant the application to extend the time to appeal, but dismiss the appeal. The Evidence at Trial [5] The Crown called a number of witnesses on this

seven‑day jury trial, including the complainant, Alexander Leung (the complainant's former boyfriend and roommate at the material time), police officers, and experts in sexual assault forensic examination, DNA evidence and forensic toxicology. The appellant testified in his own defence. I will review the important evidence in some detail, as the grounds of appeal are highly fact‑specific. The Complainant [6] The complainant was a 31‑year‑old woman at the time of the alleged assault who, on October 23, 2015, had worked for a week or two as a dishwasher at a restaurant located at the corner of West Georgia and Seymour streets in Vancouver, British Columbia. [7] The complainant testified that near the end of her shift, the appellant brought a pitcher of cooking wine downstairs to the dishwashing area, which she and another dishwasher consumed. The complainant rarely drank alcohol, had not eaten much, and got "drunk and intoxicated" from drinking roughly half the pitcher of wine. At the end of her shift, the other dishwasher said the appellant wanted to talk to her about her schedule. The complainant thought this was odd because the appellant was not normally her scheduler. [8] The complainant went upstairs and spoke to the appellant. He invited her out for a drink, which she thought would occur at his apartment. She did not expect anything sexual to happen, nor did the two discuss

it. They left the restaurant together and walked down the street. At some point, the two stopped and the appellant produced two bottles of beer from his bag, which they drank. They continued walking to a park, where they stopped to sit under a tree. The appellant then produced two more bottles of beer, which they drank. At this point, the complainant estimated her level of intoxication as being an "eight or nine out of 10". [9] The complainant testified that what happened next was "kind of a bit blurry", but the appellant had removed her shoes and pants. He touched her breasts, then parted her legs and inserted his penis into her vagina. The complainant did not consent to this sexual activity. She felt nauseous and wanted to "throw up" before "blacking out again." [10] The complainant not only testified as to her lack of consent, but also said she would not have consented to sexual activity with the appellant, as she was not attracted to him and barely knew him. Further, the complainant testified she would not have consented because "[i]t was public" and she has a fear of dirt, bugs, and insects. [11] The complainant's next memory was that the appellant was no longer on top of her, and she was lying on the ground trying to get up. She was half‑naked in the dirt, trying to find her belongings. The appellant returned her clothes (except her underwear) and her cell phone, which he

had previously thrown away. The appellant told the complainant to take an emergency contraceptive, the so‑called "morning‑after" pill, and to "keep this a secret between us." [12] The complainant started to cry and asked the appellant to call her a taxi. She testified that she was "pretty hysterical" and did not realize she did not have her glasses until she was in the taxi. [13] The complainant arrived home and spoke to Mr. Leung. She sat on the floor and cried before vomiting in the toilet. She had a nap, waking up around dinner time, when she vomited three more times. Mr. Leung took the complainant to the hospital where swabs from her breasts and vagina were taken. The police came to the hospital, but were unable to obtain a statement from the complainant because she was still vomiting. The Appellant [14] The appellant was 35 years old at the time of trial. He was born in Mexico and had been living in Canada for 13 years. He had been working at the restaurant for six years and working in the restaurant industry for 18 years. His title at the restaurant at the time of the alleged assault was, "kitchen manager, sous chef." [15] The appellant testified that he was working on the day in question, as were the complainant and another dishwasher. The other dishwasher was drinking on the job, so the appellant sent him home and asked him to send the complainant to the appellant's

office. During that conversation, the appellant was drinking a beer and offered the complainant a drink. She took two sips of that beer. [16] At approximately 1:30 a.m., the appellant went downstairs to the dishwashing area to ensure all the work was complete. He denied seeing or providing a pitcher of wine to either the complainant or the other dishwasher. After changing out of their work uniforms, he and the complainant left through a side door of the restaurant and walked half a block. At that point, the appellant and complainant split a beer that came from the appellant's bag. They kissed. They walked to Nelson Street and stopped at a pub where they each consumed one beer, then left because it was "last call" at the pub. [17] From the pub, the two walked west on Nelson Street to Thurlow Street, where they turned south and walked towards the water and beach area by Beach Avenue. The complainant walked normally and was not slurring her words. The appellant testified they stopped a couple of times to kiss. [18] The appellant said that when they neared the water, they sat near a tree, he opened his bag and pulled out two beers. They held hands, talked, and kissed. The touching escalated to the appellant feeling the complainant's breasts. The complainant then lay down on her back. The appellant touched her leg while she pulled down her pants. He helped her remove her pants once

they reached her knees. The complainant was kissing and hugging him. They had sexual intercourse for approximately four minutes. The appellant testified he did not ejaculate. The complainant seemed "normal" to him. [19] The appellant never asked the complainant whether she was consenting to sexual intercourse or whether she was too drunk to do so. He agreed that neither said anything and he did not ask if it was "okay" to touch her breasts. The appellant testified that he would have stopped if the complainant had said something. The appellant disagreed that the complainant was ever unconscious or even impaired. To support this denial, he cited his experience with intoxicated people in the restaurant industry. [20] After the sexual intercourse, the appellant called a taxi for the complainant. She was not crying. When the taxi arrived, they kissed, said goodbye, and she left in the taxi. [21] On cross‑examination, the appellant admitted he had lied to the police in his statement to the police in saying he and the complainant did not go to the Beach Avenue area and have sexual intercourse. He also said it was not true that the complainant's intoxication level was a "7 out of 10". He admitted he had lied in telling the police the complainant had brought the beer in her bag and had invited him to go for drinks. The Appellant's Statement to the Police [22] On November 2, 2015, the

appellant gave a video and audio‑recorded statement to Detective Constable Gow, in which the appellant admitted kissing the complainant, but denied having sexual intercourse with her. He said they kissed on their way to a pub where they had a drink. The complainant then got into a taxi and he walked home. The appellant said the complainant was "[v]ery drunk" and at "seven" on a scale of one to 10. [23] The interview ended when Detective Constable Gow confronted the appellant with the fact cell phone records showed the complainant going southbound on Thurlow Street to English Bay where beer bottles and the complainant's underwear were found. Alexander Leung [24] Mr. Leung was the complainant's former boyfriend and roommate when the allegation arose. He testified the complainant arrived home at around 3:30 a.m. She was very upset, crying, and "obviously drunk." She was not wearing her glasses and her clothes were dirty with dead leaves and other debris. The complainant vomited. Mr. Leung took her to the hospital later that morning. They returned home and went to sleep. [25] The complainant sometimes could not find her way around Vancouver, so Mr. Leung tracked the whereabouts of the complainant's cell phone by using an application ("app") installed on his cell phone called "Find My Friends". He would receive a periodic "ping" identifying the location of her cell phone on a map on

his cell phone (the "ping" evidence). [26] At around 2:00 a.m. on October 23, 2015, Mr. Leung started tracking the complainant's cell phone. It showed her cell phone travel from the restaurant to Thurlow Street, then south on Thurlow Street to Beach Avenue. At roughly 2:30 a.m., the travel stopped for 40 to 45 minutes near the Vancouver Aquatic Centre on Beach Avenue. Mr. Leung texted the complainant but received no response. [27] Later that day in the afternoon at around 3:00 p.m. or 4:00 p.m., based on the information from the complainant's cell phone and the "Find My Friends" app on his cell phone, Mr. Leung went to the "stopped" location near the Vancouver Aquatic Centre to try to find the complainant's glasses. Communicating via text message, the complainant said she had been near a tree. Mr. Leung sent her photos of trees in the area and she identified one. At the foot of the tree, he found two beer bottles and approximately 30 feet away, he found her underwear in the grass. Mr. Leung took photographs and placed the items in a Ziploc bag. [28] The complainant then told Mr. Leung she was feeling sick, so he went home and took the complainant to the hospital again where she stayed the night. Constable Jones [29] Constable Jones was dispatched to Vancouver General Hospital on October 23, 2015, shortly before 11:00 p.m. where she met with the complainant and Mr. Leung.

Constable Jones was unable to obtain a statement from the complainant, as the complainant continued to vomit while Constable Jones was present. Mr. Leung produced the items he had found near the tree and took Constable Jones and her partner that evening, Constable Swanson, to that location. Dr. Blanka Jurenka [30] Dr. Blanka Jurenka was qualified as an expert witness in sexual assault forensic examinations. She examined the complainant around 8:00 a.m. on October 24, 2015--approximately 29 hours after the sexual intercourse occurred. Dr. Jurenka performed a genital examination and found no injuries. She took a swab of the outside genital area, swabs from inside the vagina, a urine sample and a wet and dry swab of each breast. [31] In addition to the swabs, Dr. Jurenka performed a physical examination of the complainant. She observed the following: a "healing scratch" on the complainant's left ear; bruising on her shins which the complainant said might be work injuries; confluent bruises on the back of each forearm; a three‑centimetre bruise on her right buttock; a one‑centimetre bruise on the back of her right thigh; and a large 10‑centimetre area of redness on her central upper back, consistent with some force having been applied to the area within the last 24 or 36 hours, but not sufficient force to have caused a bruise. Michael Rosland [32] Michael Rosland testified as an

expert witness in the area of forensic toxicology, including: forensic alcohol and drug testing and screening procedures; the effects of drugs, alcohol or both on the human body; calculation of blood‑alcohol concentrations, projected blood‑alcohol concentration, and the absorption of drugs, alcohol, or both in the human body and its effect on blood‑alcohol concentration; the testing of urine samples; and drug‑facilitated sexual assaults. [33] Mr. Rosland testified that alcohol is a central nervous system depressant. The initial effects of alcohol would be related to behaviour and personality. Continued consumption will impair motor functions; fine motor control and coordination followed by gross motor control and coordination impairment. At this stage, the ability to walk without staggering or the ability to maintain balance independently would be affected. As blood‑alcohol concentration increases, central nervous system depression can render an individual unable to stand or walk and may result in loss of consciousness. Respiratory depression causing death is possible if consumption continues. [34] Mr. Rosland testified that the complainant's urine sample was negative for alcohol but contained acetone, which may indicate another type of alcohol, such as isopropanol. Given the timing of the sample, Mr. Rosland would not expect any alcohol to have remained in the complainant's

urine from alcohol consumed on the evening of October 22-23, 2015, or more than 29 hours prior to the sample. [35] In response to a hypothetical drinking pattern based on the complainant's testimony, Mr. Rosland estimated the complainant's maximum theoretical blood‑alcohol concentration would be between 253 and 268 milligrams percent at 2:30 a.m. He testified that most people tend to reach between 50 percent and 75 percent of their theoretical maximum due to rates of absorption and elimination. Based on this hypothetical, 75 percent would be between 190 and 201 milligrams percent, while 50 percent would be between 127 and 134 milligrams percent. [36] Mr. Rosland testified that a blood‑alcohol concentration between 127 and 134 milligrams percent would be consistent with impairing concentrations of alcohol. Potential physical symptoms include: bloodshot, watery eyes; flushed face; an odour of liquor on the breath; and at the higher end of the range, difficulties forming words correctly. Fine motor skills and coordination may deteriorate, and individuals will likely have impaired judgment. A blood‑alcohol content between 190 and 201 milligrams percent would be consistent with an advanced state of impairment. Symptoms could include all of the above symptoms, as well as slurred speech, fine motor skill and gross motor skill impairment, poor balance, and mental confusion or

disorganization. [37] Alcohol affects memory in two ways: first, through fragmentation of the memory, in which some memories are readily recalled and others require prompting; and second, by causing "blackouts". Different individuals will experience blackouts at different blood‑alcohol concentrations, but they are generally correlated with concentrations that are rapidly rising beyond 200 milligrams percent. On cross‑examination, Mr. Rosland testified that someone with a lower tolerance for alcohol would experience more prominent symptoms. He was not asked about a person's ability to function or their physical appearance during blackouts. Cindy Lee [38] Cindy Lee testified as an expert witness in the following areas: how DNA is deposited, transferred, retained, located and recovered on exhibits; the interpretation of forensic body fluid testing and identification of test results; the interpretation and comparison of DNA typing profiles; and the application of statistical significance to DNA matches and inclusions. [39] Ms. Lee said DNA profiles were obtained from the complainant's vaginal swab 1 and breast swabs 1 and 2. Both profiles were of mixed origin, from two individuals. The female component of the vaginal swab matched the complainant, while the partial profile of the male component matched the appellant. The vaginal swab tested positive for semen. The partial profile of

the major component of both breast swabs matched the appellant. The partial profile of the minor component matched the complainant. [40] Ms. Lee gave no evidence about pre‑ejaculatory fluid containing sperm and she was not cross‑examined. Positions of the Appellant and the Crown at Trial [41] In closing submissions, counsel emphasized the burden of proof and encouraged the jury to consider: · The absence of evidence from the other dishwasher; · The absence of evidence about "a pitcher" or its contents; · The fact the toxicologist, Mr. Rosland, had only been working with hypothetical drinking patterns; · The appellant perceived the complainant to be in a "happy mood"; · While the appellant believed the complainant had been drinking, he did not believe her to be drunk based on his 18 years of experience with intoxicated people in the restaurant industry; · The appellant and complainant left the restaurant together and stopped at a pub before walking to the Beach Avenue area; · The distance from the restaurant to the Beach Avenue area was at least 20 blocks, yet there was no evidence from either party that the complainant had any trouble walking without stumbling or falling; · The two ended up by the beach together with the complainant lying down. The complainant acknowledged she could have left, never said "no" or "stop" and never physically resisted; · The evidence suggested the

complainant was consenting, but even if the jury found otherwise, the appellant had an honest but mistaken belief that she was consenting. Specifically, counsel submitted, "If you draw the conclusion she was not consenting, did Mr. Trejo have an honest but mistaken belief that she was consenting? They go to this secluded area at night, no people around, she walked on her own, they had a beer[,] there was hugging and kissing. Mr. Trejo seems to say there was a lot of affection [and the complainant thought she was going to his apartment]". [42] In summary, counsel argued: So first of all, we're saying that she consented, and all the material that we have [is] that she consented. Or possibly she was not consenting, but on that evidence, I'm going to suggest you have a hard time coming to that conclusion, but she was not consenting but he honestly believed that she was consenting. So our contention is she was consenting, she had ability to consent, and if not, he honestly believed she was consenting, and the judge will charge you on that. [43] Crown counsel submitted the jury should not believe the appellant, but should believe the complainant. The Crown argued the jury should find the complainant did not consent to sexual intercourse. Even if they were left with a reasonable doubt about her consent, the jury should accept the complainant's description of her intoxication and find

she was not able to consent. The Crown urged the jury to find the appellant knew the complainant did not, or could not, consent. Alternatively, he was reckless or wilfully blind to her lack of consent because he did not take reasonable steps to ascertain her consent. The Issues on Appeal [44] The appellant raises two grounds of appeal: (1) His trial was a miscarriage of justice due to the ineffective assistance and incompetence of counsel; and (2) The trial judge erred by failing to caution the jury on the limited use it could make of the evidence of "pings" from the "Find My Friends" app on Mr. Leung's cell phone. On the first ground, the appellant advances four arguments. He contends that counsel: (a) Failed to cross‑examine the DNA expert, Ms. Lee, (or lead evidence from another expert) in relation to possible alternative explanations for the presence of the appellant's semen on the vaginal swab; (b) Failed to cross‑examine Mr. Rosland on a person's appearance during "blackouts"; (c) Failed to either object to, or seek a limiting instruction on, the use of the "pings" Mr. Leung saw on his cell phone; and (d) Failed to adequately prepare by having only a single meeting with the appellant before the trial. Legal Principles Relevant to Ineffective Assistance of Counsel [45] There are two elements to a claim of ineffective assistance of counsel: the performance component and the

prejudice component (R. v. G.D.B., 2000 SCC 22 at para. 26). On appeal, a court should analyze the prejudice component before the performance component. If prejudice is not proven to the requisite standard, the court should typically end the analysis without considering the performance component because grading counsel's performance is not the object of the exercise. That is a matter for the self‑governing body of the legal profession, not the court: G.D.B. at para. 29; R. v. Ball, 2019 BCCA 32 at para. 109. [46] The burden is on the appellant to establish, on a balance of probabilities, both that his or her counsel conducted the trial incompetently and the appellant was prejudiced by this incompetence. In general, the appellant must show a "real probability" or "reasonable probability" that had he or she received adequate legal advice, he or she would not have been convicted: R. v. Joanisse (1995), 85 O.A.C. 186 at para. 80, leave to appeal ref'd (1997), [1996] S.C.C.A. No. 347. [47] The prejudice component requires a miscarriage of justice to have occurred from counsel's ineffective assistance: R. v. Meer, 2015 ABCA 141, aff'd 2016 SCC 5. The miscarriage of justice may take many forms, including procedural unfairness or an unreliable verdict: G.D.B. at paras. 28, 34. Where any single error by counsel is insufficient to establish a miscarriage of justice, the cumulative effect

of errors may cause an unfair trial or undermine the reliability of the verdict: R. v. Fraser, 2011 NSCA 70 at para. 120; R. v. Hamzehali, 2017 BCCA 290 at para. 88, leave to appeal ref'd (2018), [2017] S.C.C.A. No. 380. [48] Allegations of prejudice leading to an unreliable verdict may be proven, among other ways, by evidence that "the Crown's case was not properly challenged[,] an essential application was not pursued, or due diligence efforts were not made to adduce relevant evidence": R. v. Aulakh, 2012 BCCA 340 at para.

46. If the appellant cannot establish the verdict was unreliable, they may still show counsel's incompetence amounted to an "actual or constructive denial of assistance of counsel" which caused the adjudicative process to be unfair: Aulakh at para.

47. The adjudicative process may be found to be unfair if the appellant shows counsel was impaired during the trial, acted under a conflict of interest, or failed to comply with the client's instructions: Aulakh at para. 47. [49] If prejudice is established, the court must consider whether or not counsel's acts or omissions constitute incompetence as determined by a reasonableness standard: G.D.B. at para.

27. There is a strong presumption that counsel's conduct fell within the wide range of acceptable professional assistance, and the appellate court's review of counsel's performance should be deferential, taking into account the wide range of acceptable styles and practices for an advocate: G.D.B. at para. 27; R. v. MacRae, 2000 BCCA 149 at para.

37. In particular, appellate judges should be careful not to criticize counsel's performance simply because they would have conducted the defence differently: R. v. White (1997), 32 O.R. (3d) 722 at para. 65 (C.A.), leave to appeal ref'd [1997] S.C.C.A. No. 248. [50] Failure to cross‑examine a complainant on inconsistencies and failure to lead alibi evidence are both accepted reasons to allow an appeal for ineffective assistance of counsel: R. v. Deneault (1993), 33 B.C.A.C. 156; R. v. Jim, 2003 BCCA 411; R. v. P. (T.) (2002), 165 C.C.C. (3d) 281 (Ont. C.A.); R. v. M.B., 2009 ONCA 524. However, whether or not appellate intervention is warranted in response to allegations of ineffective assistance of counsel is a highly fact‑specific inquiry. Fresh Evidence for Assessing the Effectiveness of Counsel [51] As a preliminary matter, it is necessary to consider the appellant's application, brought in accordance with this Court's Criminal Practice Directive, Ineffective Assistance of Trial Counsel (12 November 2013), to adduce the following fresh evidence: a) The affidavit of the appellant, sworn August 14, 2019, in which he deposes that counsel was ineffective and recounts details of his interactions with counsel; b) The affidavit of counsel, sworn December 16, 2019, which describes his current medical status and details regarding his preparation for the appellant's trial; c) The

affidavit of Brittney Andrews, legal secretary to appellate counsel, sworn May 11, 2020, which attaches a letter sent to counsel from Crown counsel at trial, setting out the evidence Mr. Rosland would likely testify to at trial; and d) The affidavit of Dean Hildebrand, a DNA expert, sworn May 7, 2020, which attaches his report regarding the DNA analysis performed in relation to this case. [52] The appellant applies to have each of the above affidavits admitted as fresh evidence on this appeal. The Crown does not oppose the admission of this evidence for the limited purpose of assessing the appellant's ineffective representation claim. I would admit all four affidavits for this limited purpose: Aulakh at para. 64; R. v. Ballantyne, 2012 BCCA 372 at para. 87, leave to appeal ref'd [2013] 2 S.C.R. vi. [53] It is convenient to address grounds 1(a), 1(b), and 1(d) before addressing the admissibility of the "ping" evidence. Analysis Was the Trial a Miscarriage of Justice Due to Ineffective Representation? Did Counsel's Failure to Cross‑Examine Ms. Lee Cause Prejudice? [54] The appellant submits that at trial, the issues were consent, mistaken belief in consent, and whether the complainant had the capacity to consent. It was common ground that sexual intercourse had occurred, but the appellant testified he did not ejaculate. [55] The Crown called Ms. Lee, who testified that semen was

found on a swab of the complainant's vagina. Counsel did not cross‑examine Ms. Lee, and in closing submissions, the Crown pointed to the inconsistency between the appellant's testimony and the evidence that his semen was found on the swab: Mr. Trejo said that [the complainant] laid [sic] down, and she started pulling her pants [off], and he helped her after she got the pants down to her knees. He touched her more, and they had sexual intercourse. Mr. Trejo testified that [the complainant] never said no, and there was never any resistance. He said there was [sic] about four minutes of sexual intercourse and he did not ejaculate. Compare that to his statements where he lied to the police, he told the police that no sexual intercourse happened, and then recall the evidence of Cindy Lee where sperm was found, Mr. Trejo's sperm was found in [the complainant's] vagina. And as well as I mentioned, Cindy Lee's evidence about the semen -- Mr. Trejo's semen that was found on the vaginal swab from [the complainant]. Mr. Trejo said that he did not ejaculate. [56] While summarizing the Crown's position for the jury, the judge referred to the presence of semen as a potential inconsistency: Crown counsel submits that parts of [the complainant's] evidence are confirmed by other evidence. For example, the presence of semen with a DNA profile matching that of Mr. Trejo is consistent with her

testimony and inconsistent with that of Mr. Trejo, who denies ejaculating. [57] The appellant submits counsel's failure to cross‑examine Ms. Lee caused damage because accepting the appellant's evidence with respect to ejaculation would have required rejecting the evidence of Ms. Lee. Had Ms. Lee been cross‑examined, alternative explanations for the presence of semen in the complainant's vagina may have been before the jury. In support of this argument, the appellant relies on the fresh evidence of Mr. Hildebrand. In his report, Mr. Hildebrand states ejaculation is not necessary for "some males" to secrete sperm cells, and it is "possible" DNA evidence would be found without ejaculation due to the presence of pre‑ejaculatory fluid. The appellant contends this evidence would have explained the presence of semen on the vaginal swab. Thus, counsel's failure to cross‑examine Ms. Lee on alternative explanations for the presence of his semen on the vaginal swab fell below the standard of reasonable professional judgment and prejudiced the appellant. [58] Respectfully, I cannot accept the appellant's submission. It is unfortunate Crown counsel referred to the appellant's evidence about not ejaculating as being a matter of credibility. However, I do not consider this had an impact on the trial. The primary significance of the DNA evidence was not to prove the appellant ejaculated, but

instead, it directly contradicted the appellant's statement to the police that he did not have sexual intercourse with the complainant. While the appellant correctly says the Crown contrasted the appellant's testimony about ejaculation with Ms. Lee's testimony, the Crown's submission primarily urged the jury to reject the appellant's evidence due to his prior inconsistent statement to the police. Ms. Lee gave no evidence about pre‑ejaculatory fluid. [59] In my view, the appellant's evidence about not ejaculating was only marginally relevant to his credibility. The overarching issue of credibility that permeated the trial was whether there was a reasonable doubt about whether the complainant did not consent to the sexual intercourse and was seriously intoxicated, as she maintained, or whether she consented to the sexual intercourse and was not intoxicated, as the appellant testified. It will be recalled that in his statement to the police, the appellant denied even going to the Beach Avenue area, denied having sexual intercourse with the complainant, and said she was intoxicated. [60] Thus, not only did the appellant's admittedly untruthful statement to the police seriously undermine his credibility, but in my view, the independent evidence supporting the complainant's credibility and reliability was overwhelming. It included the following: · Mr. Leung's evidence of the

complainant's physical and emotional condition when she arrived home around 3:30 a.m. She was very upset, crying, and "obviously drunk." Her clothes were dirty with dead leaves and other debris. She was vomiting. Mr. Leung was so concerned about her condition that he took her to the hospital later that morning and again later in the evening of that same day; · The complainant spent the night in the hospital; · The complainant left the scene of the alleged assault without her glasses and underwear, indicating significant emotional upheaval and intoxication; and · Constable Jones testified the complainant was vomiting when she attended the hospital to obtain a statement from the complainant. [61] Ultimately, the appellant submits counsel should have pursued an evidentiary route that might have established that it is possible the appellant was truthful when he testified that he did not ejaculate, a peripheral matter. I consider appellate counsel's suggested expert evidence to be speculative, whether elicited in cross‑examination of Ms. Lee or through an expert such as Mr. Hildebrand, given the passage of 29 hours between the alleged assault and the taking of the vaginal swab. There are various reasons why there was not much semen on the swab, including that in the passage of more than 29 hours, the semen drained or was washed out. [62] Further, while the appellant submits the jury

was left with no choice but to reject his evidence in favour of Ms. Lee's evidence, Ms. Lee never contradicted the appellant's version of events. She gave no evidence at all about the presence of semen in pre‑ejaculatory fluid. Nothing she said harmed the appellant's position. [63] I agree with the Crown that the lack of expert evidence to support a mere possibility that semen could be present even if the appellant did not ejaculate is being overemphasized on appeal. Had the appellant pursued this inquiry at trial, it would not have had a major impact. In sum, there is no reasonable probability the failure of counsel to elicit such evidence would have affected the outcome. I would not sustain this argument. Did Counsel's Failure to Cross‑Examine the Toxicologist Cause Prejudice? [64] The appellant submits prejudice arose from counsel's failure to cross‑examine Mr. Rosland on the physical capabilities of an individual experiencing blackouts. He argues Mr. Rosland could have given evidence to the effect that blackouts "do not mean unconsciousness - the individual would be conscious and visible". Specifically, the appellant takes issue with this statement by counsel during closing submissions: [The complainant] claimed that she was blacking out, severe impairment. She claims that, this is two years after the fact. She also claims that she would not have had sex with [Mr.] Trejo

because she was not interested in him, she was interested in someone else. But it's a little different than saying she did not agree to have sex, she's saying two years later, she's looking back and saying I wouldn't have done it. But that's two years later and looking back in retrospect, but you really have to look at the time of the incident, at the specific times of the intercourse took place, not two years after the fact. The appellant submits the "net result" of counsel's approach was to re‑enforce the evidence of blackouts. The appellant submits counsel should have elicited further evidence so the jury could find that even if the complainant were blacking out, it was still possible for her to have consented or acted in a way that would support a mistaken belief in consent. [65] The appellant correctly notes there is a distinction between a complainant who has a "blackout" and one who is "passed out". The former may be capable of consent, while the latter is clearly not: R. v. L.C., 2002 BCSC 1467 at para. 16; R. v. R. (J.) (2006), 40 C.R. (6th) 97 at para. 18 (Ont. Sup. Ct.), aff'd 2008 ONCA 200, leave to appeal ref'd [2008] S.C.C.A. Nos. 189, 231; R. v. Esau, [1997] 2 S.C.R. 777 at paras. 19-20. However, this distinction does not arise from the expert evidence. There was no need for Mr. Rosland to testify that "blackouts do not mean unconsciousness" when his testimony

established that an individual may suffer from blackouts, but still be conscious. He testified: And then there's a part where we have an individual who might experience what we call a blackout. So, in other words, it would be the equivalent of, say, turning on your phone to the video camera and you can see everything that's going on, but you haven't hit the button to record anything. So, it's -- we see the picture, everything is -- they can recognize what's going on, but it's not being translated into our memories such that we can recall it later. [66] There was no evidence before the jury to suggest the complainant was unconscious. In fact, she specifically said she was not unconscious when asked about the meaning and her use of the term "blackout". [67] It was unnecessary for counsel to cross‑examine Mr. Rosland on this point, as it was not in issue. Mr. Rosland described a "blackout" as being the inability to record events, not the inability to perceive them. Whether the complainant was capable of consenting to sexual activity was a question of fact to be determined from the evidence, including the complainant's own use of the term "blackout", not the definition provided by the expert. [68] Similarly, Mr. Rosland had already testified in direct examination about the physical symptoms that can occur from the consumption of alcohol. He had also related these symptoms to levels

of blood‑alcohol concentration leading to blacking out. It is unclear what further evidence would have been elicited in cross‑examination. [69] Although the appellant may prefer Mr. Rosland's evidence had been given in a more direct manner, Mr. Rosland ultimately testified to all the jury needed to determine whether the complainant had the capacity to consent, or acted in a manner that suggested she was consenting. Therefore, I find the failure to cross‑examine Mr. Rosland did not prejudice the appellant. Did Counsel Inadequately Prepare for the Trial, Thus Causing Prejudice? [70] The appellant alleges counsel inadequately prepared for the trial. In support of this argument, he relies on both his own affidavit and counsel's affidavit. [71] In his affidavit, the appellant deposes, amongst other things: · He retained counsel using legal aid after he was referred to counsel by duty counsel; · He never spoke with counsel about the mode of trial and did not know he had the choice to have a trial by judge alone; · He did not meet with counsel prior to the preliminary inquiry; · He only met with counsel once in his office and for approximately 30 minutes. During that time, he gave counsel his version of events, and they discussed both the fact that he lied to the police and the amount of alcohol the complainant consumed; · The only phone calls he had with counsel were to set up a

single meeting after his conviction, but prior to sentencing; · At least twice during the trial, counsel appeared to fall asleep; · The day before he testified, counsel informed the appellant he would be testifying. Counsel did not prepare the appellant to testify; and · At no point during the trial did he meet with counsel. [72] In his responding affidavit, counsel swears, amongst other things: · He acted for the appellant at trial; · As a result of a serious stroke in April 2019 and the passage of time, he does not recall details about the appellant's case except those in the affidavit; · He and the appellant discussed the mode of trial at one of the pre‑trial appearances which they would often attend together. He recommended the appellant proceed with a jury trial, but left the ultimate decision to the appellant; · The representations he made to the court during the preliminary inquiry and trial about his meetings with the appellant were true, as was the reference to his instructions he received from the appellant (the appellant's version of events) he made during the examination of witnesses; · Prior to the preliminary inquiry, he met with the appellant and the appellant gave him his version of events; · He told the appellant to schedule an appointment to meet with him in order to go over the evidence and prepare for trial. When the appellant failed to do so, he called the

appellant on the Saturday before the trial was set to commence, asking him to come to his office. The appellant did not come to meet with counsel until the night before the trial. This meeting lasted approximately two hours (I note this is inconsistent with the transcript of the proceedings at trial on February 19, 2018, at page 1 (lines 40-43), where counsel said that although he (counsel) was in the office the day before the trial, the appellant was working and could not come to meet with him); · At some point, he reviewed with the appellant the discovery materials and discussed the appellant's false statement to the police; and · After the Crown closed its case, the appellant was to meet with him at his office, but the appellant never arrived. [73] In essence, the appellant submits the alleged single preparatory meeting before the trial and counsel's failure to take notes at this meeting were inadequate. The appellant argues this lack of preparation left critical witnesses unquestioned, meant evidence that should have been led was not, and caused counsel to cross‑examine the complainant to the extent of confirming unhelpful evidence. He submits these cumulative failings fell below the standard of reasonable professional judgment and caused him prejudice (affecting either the result or the process by which the verdict was reached). [74] Counsel has been unable to meaningfully

respond to these allegations because a stroke and the passage of time have left him with no recollection of the events. However, he has confirmed the representations he made during the preliminary inquiry and the trial about meeting with the appellant were true. The Crown has accurately summarized those representations as follows: · Counsel and the appellant met the day before the preliminary inquiry; · The complainant was cross‑examined at the preliminary inquiry about facts based on the appellant's "instructions" (the appellant's version of events); · Counsel was in his office the day before the trial, but the appellant was working and could not come to meet with him; · The appellant had not had the opportunity to meet with counsel at his office "other than a few weeks ago [before the trial]" and at that time he had "gone over everything"; · Counsel spoke to the appellant during the court's morning recess at the voir dire; · Counsel spoke to the appellant regarding possible indirect contact with the complainant; · At the completion of cross‑examination of the complainant, counsel stated he knows "what the accused is going to say"; · At the end of the Crown's case, counsel advised the judge that he would be calling the appellant to testify; and · The appellant was working during the week of the trial, so counsel asked the judge whether they could take the afternoon off from

the trial as he was prepared to put the appellant on the stand the next morning. [75] Additionally, counsel deposes he asked the appellant to come to his office after the Crown closed its case in order to prepare for direct and cross‑examination, but the appellant did not attend. [76] This case is unlike R. v. M.B., 2009 ONCA 524, in which an ineffective assistance of counsel claim was allowed based, in part, on a failure to prepare the accused for cross‑examination. In that case, the accused was unaware his prior police statements would be used at trial, which led him to perform poorly during cross‑examination. In contrast, the appellant here knew he would be cross‑examined on his statement because it had been introduced at trial. Unlike the situation in M.B., the record before this Court shows the appellant was not surprised to be cross‑examined, and before trial had discussed with counsel why he lied to the police. [77] Perhaps the fundamental problem with the appellant's claim of ineffective assistance of counsel on this ground as lack of adequate preparation is that he leads no evidence to show his testimony in direct or in cross‑examination would have been any different had he been more or differently prepared. His case mirrors R. v. Bear, 2020 SKCA 86, where an appeal on similar grounds was dismissed in part because the appellant failed to show how more preparation would

have led to a different result. [78] I am satisfied the appellant and counsel discussed the appellant's evidence and the case was defended in accordance with the appellant's instructions. Similarly, it is clear from the record that the appellant performed adequately in direct and cross‑examination. The appellant's evidence appears consistent throughout. There is nothing to show that he was prejudiced by counsel's alleged failure to prepare him to testify. In a similar case, Moldaver J.A., as he then was, found these factors supported a finding that the appellant was not prejudiced by the alleged incompetence: R. v. Davies, 2008 ONCA 209 at para. 57. [79] I would substantially adopt the reasoning of the court in Davies. Counsel's conduct, particularly in failing to take notes, is troublesome: see R. v. Lam, 2020 BCCA 276 at para. 59, citing Hamzehali at para.

76. However, I consider it falls short of establishing that the appellant had an unfair trial, or was otherwise prejudiced. I would not give effect to this argument. The "Ping" Evidence [80] The appellant has three principle arguments with respect to the "ping" evidence from the "Find My Friends" app on Mr. Leung's cell phone. First, the appellant says although the evidence may have been admissible as narrative to explain why Mr. Leung went to the location of the alleged assault, it ought not to have been admitted to prove the route taken by the parties after they left the restaurant. Second, the appellant submits counsel's failure to cross‑examine Mr. Leung on the accuracy of the "pings" was an act of incompetence that prejudiced the appellant. Finally, the appellant says counsel should have sought a limiting instruction on the proper use of the "pings", and the judge erred in failing to provide an instruction to the jury as to the limited use of the "ping" evidence. [81] The appellant does not point to any real prejudice as a result of these alleged instances of incompetence. The main purpose of the "ping" evidence provided by Mr. Leung was as narrative to explain why he went to the location of the alleged assault later that day. [82] The appellant correctly notes that Crown counsel at trial referred to the inconsistency between the appellant's narrative as to the route taken

by the parties and Mr. Leung's recollection of the route shown by the "pings". However, the Crown also noted the "ping" evidence was inconsistent with the complainant's version of events. Considering that evidence affected the credibility of both the appellant and the complainant, the appellant could not have been seriously prejudiced by its admission. [83] In response, the Crown says the judge's failure to provide a limiting instruction is subject to the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, which reads: 686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (b) may dismiss the appeal where (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or [84] I agree the "ping" evidence should only have been admitted as narrative to explain Mr. Leung's actions later that day after the alleged assault and not for proof of the route taken by the parties. The judge should have provided the jury with an instruction explaining the limited purpose for which the jury could use that evidence. [85] However, not every error in a

criminal trial warrants appellate intervention: R. v. Van, 2009 SCC 22. In determining whether or not to apply the curative proviso, the court must consider whether the error, either on its face or in its effect, was so minor and irrelevant to the ultimate issue, or so clearly non‑prejudicial, that no reasonable judge or jury could possibly have rendered a different verdict if the error had not been made: Van at para.

35. At the same time, it is important for the court not to assess the strength of the evidence against the accused: R. v. White, 2011 SCC 13 at para. 93. [86] The function of the "ping" evidence was as narrative to explain why Mr. Leung went to the location of the alleged assault and searched for certain items. Although both counsel and the Crown, at times, pointed to the inconsistency between the appellant's version of the route the parties took and that shown by the "ping" evidence, both counsel also recognized that evidence contradicted the testimony of the complainant. Since it contradicted the testimony of both the appellant and complainant, the "ping" evidence could not be said to have bolstered the complainant's credibility or harmed that of the appellant. In addition, Mr. Leung testified he had not regularly updated the "Find My Friends" app on his cell phone during the time in question and admitted he did not recall the precise location of all the "pings". [87] The appellant also suggested that counsel's failure to object to this evidence was an element of the ineffective assistance of counsel. However, from his perspective, counsel may have regarded it as of assistance to the defence. [88] In light of the case as a whole and the limited purpose for which the "ping" evidence was admissible, the failure of the judge to provide a limiting instruction was a minor error

which did not result in any substantial wrong or miscarriage of justice. I would therefore apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. Counsel's failure to request a limiting instruction and the judge's failure to provide one did not prejudice the appellant. Conclusion [89] Although I have concluded that none of the individual alleged instances of incompetence prejudiced the appellant, I still must consider whether their cumulative effect caused prejudice: Hamzehali at para. 88. [90] In my opinion, the appellant takes issue with minor matters that could not reasonably have affected the verdict. The principal purpose of the semen evidence on the vaginal swab was to establish the appellant lied to the police, not to take serious issue with the appellant's testimony that he did not ejaculate. The evidence the appellant says counsel ought to have elicited from Mr. Rosland, that blackouts are distinct from unconsciousness, was before the jury--first, directly through the testimony of the complainant, then indirectly through Mr. Rosland's testimony. The lack of a limiting instruction on the "ping" evidence did not cause a miscarriage of justice, so the failure to seek a limiting instruction could not have caused prejudice. Finally, the appellant points to no prejudice from any failure of counsel to prepare him for trial, nor any evidence that counsel did not

know what evidence the appellant would provide or was otherwise unprepared to the point of incompetence. [91] In the end, the thrust of the appellant's arguments is a complaint that counsel failed to cross‑examine certain expert witnesses in a manner that might have rehabilitated his already seriously impaired credibility. His arguments deal with peripheral or minor issues concerning the nature of the evidence or the way it was presented. [92] The appellant clearly wishes the evidence in certain areas had been elicited somewhat differently, or that counsel had made alternative arguments on marginal issues. However, these are not bases on which a claim of ineffective assistance of counsel may succeed. In R. v. Dunbar, Pollard, Leiding and Kravit, 2003 BCCA 667, leave to appeal ref'd [2004] S.C.C.A. Nos. 30, 217 [Dunbar], this Court observed that the Supreme Court of Canada has directed appellate courts to focus their initial attention on the prejudice, or "miscarriage of justice" component of the ineffective representation claim. Where the appellant fails to establish that prejudice has occurred, it is undesirable for appellate courts to embark on an analysis of counsel's performance. Dunbar succinctly addressed the meaning of the prejudice component this way: [26] The prejudice component requires the appellant to show that the incompetence of trial counsel resulted in a

miscarriage of justice. Doherty J.A. discussed the meaning of "miscarriage of justice" in this context in Joanisse, [(1995), 102 C.C.C. (3d) 35] at 64. He explained that a miscarriage of justice can result where the appellant establishes a reasonable probability that but for counsel's errors, the result of the proceedings would have been different. A reasonable probability is one that is "sufficient to undermine confidence in the outcome" and "lies somewhere between a mere possibility and a likelihood": Joanisse, supra at 62; R. v. Strauss (1995), 61 B.C.A.C. 241, 100 C.C.C. (3d) 303 at 319. Alternatively, a reliable outcome may still constitute a miscarriage of justice where the process through which that verdict was reached was unfair: Joanisse, supra at 62; D.B. v. British Columbia (Director of Child, Family & Community Services), [2002 BCCA 55] ¶63‑64. [93] In my opinion, the appellant has failed to prove on a balance of probabilities the prejudice component of his claim of ineffective assistance of counsel. To succeed on appeal, the appellant must establish a reasonable probability that the verdict would have been different but for counsel's incompetent conduct, or that counsel's conduct deprived him of adjudicative fairness. In my opinion, the appellant has not met this significant burden. [94] The Crown in its factum says it is not opposed to the extension of time to

appeal to September 17, 2018, the day the appellant filed his original notice of application for leave to appeal his sentence (the appellant filed an amended notice of appeal on August 6, 2019, to include an appeal against his conviction). In his factum, the appellant did not address an application to extend time, and neither party addressed it orally. If it has not been previously addressed, I would grant an extension of time to appeal to September 17, 2018. However, I would dismiss the appeal. "The Honourable Madam Justice MacKenzie" I AGREE: "The Honourable Madam Justice Newbury" I AGREE: "The Honourable Mr. Justice Willcock"