Defence lawyer’s error prompts Appeal Court to quash sex-assault conviction

TORONTO – A man found guilty for the violent sexual assault of a new mother has had his conviction quashed after Ontario’s top court on Monday agreed his lawyer had failed him at trial.

In deciding a miscarriage of justice had occurred, the Court of Appeal said Ian Walendzewicz might have succeeded in undermining the complainant’s credibility if he had an effective lawyer — normally a difficult argument for an accused to make.

Superior Court Justice Jane Ferguson, sitting without a jury, convicted Walendzewicz, of Cobourg, Ont., in February 2013 — a decade after the alleged attack. Evidence at trial, based on the complainant’s testimony, was that the man with whom she had an on and off relationship arrived drunk at her apartment on a night in October 2003.

The woman alleged Walendzewicz punched 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 records show. She reported the alleged incident to police and went to hospital, where she completed a sexual assault questionnaire.

One of the answers she gave on the form — entered into evidence by the prosecution with agreement from the defence — was that she’d had protected sex just two days before the alleged attack — an answer Walendzewicz’s lawyer failed to notice.

Walendzewicz’s defence — he did not testify — turned on his argument that the woman had agreed to sex with him, but during her trial testimony, she was adamant she would never have done so that soon after giving birth.

“Three weeks after having a baby you are not having sex,” the woman testified, according to a transcript. “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.”

Justice Ferguson accepted her testimony as truthful, and convicted the accused, then in his mid-30s, of sexual assault, assault causing bodily harm, and uttering threats.

Walendzewicz’s appeal turned on the complainant’s answer on the hospital questionnaire.

Because he had failed to notice her prior statement, Walendzewicz’s lawyer did not bring an application to cross-examine the woman on the answer, which might have exposed an apparent contradiction about her unwillingness to have sex.

The lawyer did belatedly try to reference the questionnaire in closing arguments, but Ferguson ruled that out of bounds because he had failed to raise it earlier.

For its part, the prosecution argued on appeal that the questionnaire did not prove the woman had agreed to sex two days before the alleged assault. The Crown asserted that cross-examining her about the questionnaire would only have elicited more evidence of his abuse of the woman.

The Appeal Court rejected the prosecution arguments.

“The complainant sought to corroborate her position she did not consent by offering the testimony (she gave),” the Appeal Court said. “This testimony while on the witness stand at trial was central to her credibility, which was the only live issue at trial.”

The mere fact his defence made no attempt to try to undermine her credibility by challenging her over the questionnaire, the court said, was enough to show Walendzewicz had ineffective trial counsel.

“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,” the Appeal Court said.