Court of Appeal for Ontario

Reference: R. v. Doirin, 2017 ONCA 755

Date: 2017-09-27

File No.: C60488

Judges: Sharpe, Rouleau and Benotto JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Didier Doirin

Appellant

Counsel

Sarah Desabrais and Sarah Paré-Wild, for the appellant

Philippe Cowle, for the respondent

Hearing and Decision

Date of Hearing: September 22, 2017

Decision Rendered: Orally at the conclusion of the hearing

Appeal from: Conviction pronounced on June 10, 2014 by Justice Larry B. O'Brien of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant maintains that he did not receive effective assistance of counsel at trial. According to him, a miscarriage of justice resulted from this ineffective assistance. More specifically, had it not been for the ineffective assistance of his counsel, the appellant would have testified in his defence at trial.

[2] The appellant seeks to have his testimony and that of his spouse admitted as new evidence in support of this argument. He contends that upon reading this new evidence, we must conclude that there is a reasonable probability that he would have been acquitted had he testified. According to the appellant, this testimony is of such a nature as to raise a reasonable doubt and could reasonably have influenced the outcome of the trial.

[3] In our view, the appeal must be dismissed. After examining the new evidence filed by the appellant as well as that filed by the Crown, we have concluded that the appellant has not suffered any prejudice. Accordingly, it is not necessary to examine the work of counsel to decide on his alleged ineffective assistance.

[4] We cannot admit the appellant's new evidence due to its lack of credibility and implausibility. The cross-examinations of the appellant and his spouse demonstrated that their affidavits filed in support of the appeal contained falsehoods on a central point, namely the contact between the appellant and his counsel during the preparations for trial.

[5] Furthermore, the appellant's account of what allegedly occurred on the evening of the abduction of which he was accused lacks logic. The appellant, to some extent, changed his account during his cross-examination.

[6] We also reject the suggestion that the appellant's counsel lied in his affidavit filed in response to the appeal or during his cross-examination. Viewed as a whole, the counsel's testimony appears as a sincere effort to relate, to the extent possible, the events according to his notes and his recollection of the events. The fact that he hesitated, expressed certain doubts, and did not retain all his notes in no way diminishes his credibility. This testimony contradicts the appellant's testimony on critical points.

[7] In conclusion, we are of the view that the appellant has not established the truthfulness of the evidence upon which his complaint of ineffective assistance of counsel depends.

[8] We therefore refuse to admit the new evidence and dismiss the appeal.

"Robert J. Sharpe J.A."

"Paul Rouleau J.A."

"M.L Benotto J.A."