ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
Respondent
– and –
Nathan Doyle
Appellant
William Webber for the Respondent
Mark Ertel and Leslie Schumacher for the Appellant
HEARD: January 29, 2026
REASONS FOR JUDGMENT
Summary Conviction Appeal
Abrams J.
Overview
1Nathan Doyle appeals from his conviction for sexual interference following a judge-alone trial in the Ontario Court of Justice. He was acquitted of a related charge of sexual assault. The complainant was fourteen years old at the time of the alleged offence.
2The appellant contends that he received ineffective assistance of counsel. More particularly, he submits that trial counsel failed to provide the preparation and advice necessary to permit an informed decision about whether to testify in his own defence. He argues that he was not adequately advised about the significance of his testimony in a case turning on credibility and reliability, including the operation of the principles described in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
3The respondent disputes that claim. The respondent submits that counsel acted competently, that the appellant made the decision not to testify after receiving appropriate advice, and that no miscarriage of justice occurred.
4For the reasons that follow, I admit the fresh evidence, allow the appeal, set aside the conviction, and order a new trial.
I. THE FRESH EVIDENCE
5The appeal is advanced on an agreed evidentiary record consisting of affidavits sworn by the appellant and trial counsel, together with transcripts of examinations conducted pursuant to s. 683 of the Criminal Code, R.S.C., 1985, c. C-46. The parties jointly submit that the evidence should be received.
6Claims of ineffective assistance of counsel commonly require evidence beyond the trial record. The fresh evidence tendered here is necessary to permit meaningful review of the allegations advanced by the appellant.
7I therefore admit the fresh evidence.
II. THE GOVERNING PRINCIPLES
8The governing legal principles are well established.
9An appellant alleging ineffective assistance of counsel must establish the factual foundation for the claim, demonstrate that counsel's representation fell below the standard of reasonable professional assistance, and show that a miscarriage of justice resulted: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26; R. v. K.K.M., 2020 ONCA 736, at para. 55.
10A miscarriage of justice may arise because the reliability of the verdict is called into question or because the fairness of the adjudicative process has been compromised: G.D.B., at para. 28; R. v. White, 2022 SCC 7, [2022] 1 S.C.R. 64, at para. 7.
11The decision whether to testify belongs to the accused. Counsel's responsibility is to provide advice sufficient to permit the accused to make an informed choice. A failure to provide the information necessary for a meaningful decision may result in a miscarriage of justice: G.D.B., at para. 34; White, at para. 7.
12As explained in K.K.M., the right to choose whether to testify may be effectively lost not only where counsel makes the decision for the accused, but also where the accused is deprived of the information necessary to make a meaningful election: at para. 91.
III. THE FACTUAL FOUNDATION
A. Matters Not Seriously in Dispute
13Several factual matters are substantially uncontested.
14Prior to trial, both the appellant and trial counsel anticipated that the appellant would likely testify. Trial counsel advised him on more than one occasion that his evidence would probably be required, particularly if the complainant and the appellant's daughter provided mutually supportive accounts.
15It is also clear that no substantial witness preparation occurred before the close of the Crown's case. Trial counsel did not conduct a mock examination, review the anticipated evidence in detail, or prepare the appellant for cross-examination before he was called upon to decide whether to testify.
16The significance of that omission increased when the Crown's evidence unfolded differently than anticipated. By the conclusion of the Crown's case, inconsistencies had emerged in the evidence of the Crown witnesses. Those inconsistencies created a strategic question that had not previously existed. The appellant was then required to decide whether to rely upon those weaknesses in the Crown's case or to testify in his own defence.
B. The Advice That Was Provided
17The central issue on this appeal concerns the nature and adequacy of the advice given to the appellant before that decision was made.
18Trial counsel testified that he discussed the risks associated with testifying, including the possibility that the appellant's evidence could reinforce aspects of the Crown's case and expose him to potentially damaging cross-examination. Counsel identified particular areas of concern, including evidence relating to the appellant's position on the sofa and the contents of a thermos observed during the events in question.
19I accept that those discussions occurred. The appellant ultimately acknowledged as much.
20The difficulty lies elsewhere. The issue is not whether the appellant understood some of the risks associated with testifying. The issue is whether he received sufficient advice to understand the potential forensic value of providing evidence.
21Trial counsel's evidence on that question was uncertain. His affidavit states that "elements" of W. (D.) were discussed. During his examination, he initially expressed confidence that he had advised the appellant concerning the second branch of the W. (D.) framework. He subsequently acknowledged, however, that he had no notes and could not say whether he had actually provided that advice in this case or merely assumed that he had because it would ordinarily be his practice.
22More importantly, trial counsel acknowledged that he could not say whether he advised the appellant that the trial judge could believe the complainant while nevertheless harbouring a reasonable doubt because of the appellant's evidence.
23That concession is significant in the circumstances of this case.
24This prosecution turned entirely on witness testimony. There was no forensic evidence, no admission, and no independent evidence directly corroborating the alleged touching. The decision whether to testify therefore required an appreciation not only of the risks of giving evidence, but also of the ways in which that evidence might assist the defence.
25In a credibility case, an accused person's evidence need not be accepted to matter. The principles articulated in W. (D.) recognize that evidence may raise a reasonable doubt even where it does not persuade the trier of fact of its truth.
26Having considered the fresh evidence as a whole, I am satisfied on a balance of probabilities that the appellant was not adequately advised about that aspect of the W. (D.) framework.
IV. DID COUNSEL'S PERFORMANCE FALL BELOW THE REQUIRED STANDARD?
27Courts must approach allegations of ineffective assistance with caution. Counsel is presumed competent, and reviewing courts must avoid assessing professional decisions through hindsight. The question is not whether a different lawyer might have acted differently. The question is whether the representation fell below the standard of reasonable professional assistance.
28Nevertheless, the obligation to provide meaningful advice concerning the decision whether to testify is a fundamental one.
29In this case, three circumstances are particularly important. First, the appellant was required to decide whether to testify without having received meaningful preparation for doing so. Second, trial counsel did not provide a recommendation concerning whether the appellant should testify, notwithstanding his acknowledgment that a meaningful assessment would ordinarily depend upon the preparation process that never occurred. Third, and most importantly, the appellant was not adequately advised about a significant legal consequence of testifying.
30The fresh evidence satisfies me that the appellant understood the decision largely as a choice between placing his credibility in opposition to that of the complainant or remaining silent and relying on weaknesses in the Crown's evidence. That understanding was incomplete.
31An accused faced with that decision in a credibility case should understand that testimony may assist the defence even where it is not wholly accepted. Without that information, the accused cannot fully assess the potential value of providing evidence.
32I do not suggest that counsel was required to provide a detailed legal tutorial or recite the language of W. (D.). Nor is there a rigid checklist governing advice about whether to testify. The issue is whether the accused possessed sufficient information to make a meaningful choice.
33In the circumstances of this case, I am not satisfied that he did.
34I therefore conclude that the performance component of the ineffective assistance claim has been established.
V. DID A MISCARRIAGE OF JUSTICE OCCUR?
A. Trial Fairness
36In my view, it did.
37The appellant unquestionably retained the formal right to decide whether to testify. The difficulty is that the right to choose is meaningful only if exercised with sufficient information.
38Here, the appellant did not adequately understand an important feature of the legal significance of his testimony. Although he understood certain risks associated with giving evidence, he did not receive sufficient advice concerning the ways in which his testimony could assist the defence even if it was not fully accepted.
39In these circumstances, the appellant was deprived of the ability to make a fully informed election on a matter reserved to him personally.
40That deprivation compromised the fairness of the adjudicative process and therefore amounts to a miscarriage of justice.
B. Reliability of the Verdict
41I also have concerns relating to the reliability of the result.
42This was a case that depended entirely on testimonial evidence. Had the appellant testified, the evidentiary record before the trial judge would have been materially different.
43Whether the appellant's evidence would ultimately have been accepted cannot be known and need not be determined. The point is that the decision not to place that evidence before the court was made without the appellant having received sufficient information to make a meaningful choice.
44In a case turning wholly on credibility and reliability assessments, that circumstance raises a legitimate concern about the reliability of the outcome reached.
45I am therefore satisfied that the appellant has demonstrated a miscarriage of justice.
DISPOSITION
46The fresh evidence is admitted.
47The appeal from conviction is allowed.
48The conviction for sexual interference is set aside.
49A new trial is ordered before a different judge of the Ontario Court of Justice.
The Honourable Mr. Justice B. W. Abrams
Released: July 10, 2026