DATE: 2001-03-01

DOCKET: C33124

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. HARRY PATENAUDE (Applicant/Appellant)

BEFORE: ABELLA, ROSENBERG and GOUDGE JJ.A.

COUNSEL: Peter J. Connelly, for the appellant Robert Kelly, for the respondent

HEARD: February 22, 2001

On appeal from his conviction by Justice G. Morin, sitting without a jury, on August 31, 1998

ORAL ENDORSEMENT

[1] We do not accept that counsel did not inform the appellant of the second DNA test and of its significance in terms that the appellant would have understood. In our view, this case therefore comes to whether counsel’s failure to bring an application to strike the plea when he learned of the second DNA test falls below the standard of effective counsel.

[2] Assuming the second test was admissible, at its highest it might have slightly impacted on the complainant’s testimony. Against that was the very strong independent evidence confirming the complainant’s testimony. Counsel as well had observed the complainant at the preliminary inquiry and formed the reasonable view that she was a convincing witness. It was within the bounds of competency for counsel to have formed the view that in those circumstances the second DNA test was not a basis to attempt to set aside the plea.

[3] Accordingly, the application to admit fresh evidence is refused and the appeal from conviction is dismissed.

(signed) “R. S. Abella J.A.”

(signed) “M. Rosenberg J.A.”

(signed) “S. T. Goudge J.A.”