DATE: 20040518

DOCKET: C39077

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – GARY MARK GIROUX (Appellant)

BEFORE: ROSENBERG, GILLESE and ARMSTRONG JJ.A.

COUNSEL: Delmar Doucette

For the appellant

Jamie Klukach

For the respondent

HEARD: May 12, 2004

RELEASED ORALLY: May 12, 2004

On appeal from conviction by Justice Antonio Di Zio of the Ontario Court of Justice on October 30, 2001 and sentence imposed on November 8, 2001.

E N D O R S E M E N T

[1] We are satisfied that the test for ineffective assistance of counsel has been met. The statement attributed to the nurse was clear evidence of consent. It was the only extrinsic evidence to support the appellant’s position. The failure to interview the nurse and to cross-examine the complainant on the statement cannot, in our view, be attributed to reasonable professional judgment. The trial counsel’s explanations for these decisions do not bear up under scrutiny and are inconsistent with counsel’s later futile attempt to lead hearsay evidence of the nurse’s statement.

[2] We are also satisfied that the appellant has shown that the reliability of the trial’s results may have been compromised. P.C. Roger’s attempt to explain away the express words of her note of the nurse’s statement is not reasonable. Had the complainant been confronted with this statement, the result of the case may have been different. That statement to the nurse supported the defence position that the complainant had reinterpreted the events surrounding the sexual act in light of the quite brutal and unprovoked assault that followed.

[3] Accordingly we would allow the appeal from conviction for sexual assault and order a new trial.

[4] The trial judge imposed five years imprisonment concurrent for the aggravated assault and the sexual assault. In view of our conclusion on the sexual assault, it is necessary to review the five-year sentence imposed for the aggravated assault. For that purpose the fresh evidence is helpful. That evidence shows that the appellant is confronting his alcohol problem and making excellent progress with his rehabilitation. That said, the aggravated assault was an extremely serious one, committed within a domestic context and committed only a very short time after he was released, having assaulted this very same complainant.

[5] Accordingly, leave to appeal sentence for aggravated assault is granted, the appeal is allowed and the sentence is reduced to four years imprisonment.

Signed: “M. Rosenberg J.A.”

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”