COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Landriault, 2016 ONCA 465

DATE: 20160613

DOCKET: C58316

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Landriault

Appellant

Counsel:

David Landriault, in person

Yoni Rahamim, duty counsel

Katie Doherty, for the respondent

Heard and released orally: June 6, 2016

On appeal from the conviction entered on January 10, 2014 and the sentence imposed on January 31, 2014 by Justice A. Sosna of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] Mr. Landriault appeals his convictions for one count of fraud and 2 counts of forgery together with the 18 month sentence imposed.

Conviction Appeal

[2] The appellant alleges ineffective assistance of trial counsel on two grounds: first, he did not call Heather Beaumont as a witness; and second he – the appellant – was not called to testify.

[3] Ms. Beaumont was a teller at the Bank where forged cheques were drawn. It is suggested that she knew that the appellant had authority to sign his partner’s name on cheques. The evidence before this court does not establish that Ms. Beaumont had any relevant information. There is no affidavit from her. It appears that, at best, her evidence would have been double hearsay. We note that trial counsel did call the customer service representative from the bank. On this issue, the appellant has not met the threshold test of establishing prejudice resulting from the alleged actions of trial counsel.

[4] The appellant submits that he wanted to testify in his own defence. Trial counsel’s explanation for not calling him as a witness discloses intelligent strategic reasons for his recommendation that the appellant not testify. The appellant’s testimony would have assisted the Crown by expanding the length of time the fraud was ongoing, it would have put in evidence his criminal record for crimes of dishonesty, his ATM withdrawals and his fraudulent Employment Insurance claims. The appellant has not met the prejudice threshold with respect to this ground of appeal.

[5] We add however, that, were we to embark upon the next steps and consider a credibility analysis of trial counsel as opposed to the appellant, we would have accepted the evidence of trial counsel. The appellant contradicted himself on numerous occasions: he said the lawyer never told him he could testify then he said the lawyer did tell him but advised against it; he said he did not agree not to testify, but other times said he accepted his lawyer’s advice; he said they never directly discussed testifying, then said they did; he said he was told he had no choice then he said it was his choice. In addition, the appellant said they never discussed his criminal record, a statement difficult to believe. He said at one point that the lawyer never discussed the election for trial by judge alone, then said they discussed it a few times. In the context of the appellant’s convictions for crimes of dishonesty, an admitted fraud on Employment Insurance and his motive to fabricate, we have no hesitation in accepting trial counsel’s evidence.

Sentence Appeal

[6] The appellant submits that the sentencing judge erred by using lack of remorse as an aggravating factor. The sentencing judge recognized that remorse is not an aggravating factor. He added, however that the appellant shows a “lack of insight into the moral blameworthiness of his conduct resulting in financial losses.” His reasons make it clear that he was not referring to lack of remorse as aggravating, but rather the appellant’s response to the financial losses suffered by others as a result of the appellant’s actions. He considered this an important factor referable to specific deterrence.

[7] It is not in dispute that the 18 month sentence is within the appropriate range. There is no basis for appellate interference.

[8] The appeal is dismissed as to conviction and sentence.

“K. Feldman J.A.”

“M.L. Benotto J.A.”

“B.W. Miller J.A.”