DATE: 20030307

DOCKET: C30763

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. JOSEPH MALLAIS (Appellant)

BEFORE: CATZMAN, DOHERTY and GOUDGE JJ.A.

COUNSEL: Frank Bernhardt for the appellant

Scott Hutchison for the respondent

HEARD: March 4, 2003

ORALLY

RELEASED: March 4, 2003

On appeal from the dismissal of a summary conviction appeal imposed by Judge M. Morten on September 23, 1998.

E N D O R S E M E N T

[1] Given the largely unexplained three-year delay in moving this appeal forward after the fresh evidence was gathered, we would refuse leave to appeal to this court.

[2] In any event, had we granted leave, we find no merit in the ineffective assistance of counsel argument advanced on behalf of the appellant. We will deal with only one aspect of that argument. Putting the appellant’s submission concerning the videotape at its highest, the contents of the tape were inconsistent with some of the specific observations described by a police officer in her testimony at trial. In oral argument, counsel conceded, however, that parts of the videotape were certainly consistent with the appellant being under the influence of alcohol at the relevant time. In our view, counsel’s decision not to use this videotape, given the description of its contents that we have been provided with, does not even approach the level of ineffective assistance.

[3] In the result, leave to appeal is refused.

“M.A. Catzman J.A.”

“Doherty J.A.”

“S.T. Goudge J.A.”