Court of Appeal of Quebec

Vdovin c. R.

Bouchard, Lavallée, Baudouin

Appeal from convictions. Dismissed. Application for leave to appeal from sentence. Granted. Appeal from the sentence. Dismissed.

The appellant was found guilty on various counts related to the possession and trafficking of firearms and prohibited devices, as well as on one count of breach of an undertaking. He was sentenced to a 10-year term of imprisonment. Regarding the guilty verdicts, the appellant argues that he did not receive adequate and effective assistance of his counsel at trial. He did not present any argument on the sentence.

The test for examining an allegation of counsel’s incompetence is set out in R. v. G.D.B. (S.C. Can., 2000-04-27), 2000 SCC 22, SOQUIJ AZ-50075276, J.E. 2000-919, [2000] 1 S.C.R. 520. The appellant must establish that counsel’s acts or omissions, assessed on the basis of reasonableness, constituted incompetence and that a miscarriage of justice resulted. The incompetence of counsel may affect the reliability of the verdict or the fairness of the trial. Following the principles established in Delisle c. R. (C.A., 1999-01-12), SOQUIJ AZ-99011120, J.E. 99-282, [1999] R.J.Q., counsel’s conduct must be examined in the context of the trial and in light of counsel’s explanations of such conduct. The question of prejudice is key and must be considered first. In this case, the evidence of counsel’s incompetence is based on contradictory affidavits and the Court must assess the credibility of each version in order to decide the appeal.

The appellant’s allegations cannot be examined in the aggregate. Each fault alleged against counsel, and the prejudice allegedly resulting therefrom, must be assessed on their merits. The allegation that counsel generally failed in his duty to advise is rejected. In this regard, counsel stated that the difficulties encountered in representing the appellant were attributable to the latter, who was uncooperative because he was convinced that the justice system was corrupt. This version is credible and corroborated by the affidavits of the appellant, who questioned the competence and integrity of every person involved in his case. Regarding the decision not to have the appellant testify and the failure to subpoena witnesses, the appellant has not met his burden of proving that counsel was negligent. Moreover, it is not possible to conclude that the verdict would have differed had the cross-examinations been better. The evidence was extremely damning and the cross-examinations were adequate in this context.

With respect to the absence of expert ballistics evidence for the defence, counsel’s version that the appellant did not want to pay to present such evidence cannot be set aside. Furthermore, it is up to counsel to decide what witnesses to subpoena and, in general, how to conduct the case. Counsel’s failure to meet with or contact the appellant between January and February 2018, regarding which there are contradictory versions, could not, in and of itself, undermine the reliability of the verdict.

Last, even if counsel had failed to present a motion for a stay of proceedings for unreasonable delay, despite the appellant’s request he do so, this error would have had no impact on the fairness of the trial. In fact, the total delay between the appearance and the conviction exceeded the ceiling by two months. However, the appellant changed lawyers seven times and the defence delay must be deducted from the total delay.

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