DATE: 20060412

DOCKET: C41228

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – KEVIN FELIX BROWN (Appellant)

BEFORE:

GILLESE, BLAIR and LAFORME JJ.A.

COUNSEL:

Russell Silverstein

for the appellant

Rick Visca

for the respondent

HEARD & ENDORSED:

April 7, 2006

On appeal from the conviction entered on March 19, 2003 and the sentence imposed on April 30, 2003 by Justice Sandra Chapnik of the Superior Court of Justice, sitting with a jury.

A P P E A L B O O K E N D O R S E M E N T

[1] By order dated April 5, 2006, Borins J.A. deemed the appellant to have surrendered by appearing in person at the hearing of the appeal.

[2] The appellant did not so appear. However, the Crown has conceded that the appeal must be allowed. And, the appellant has faithfully appeared as ordered on all previous occasions. Accordingly, the order of Borins J.A. shall be varied to read that “In lieu of surrender, the appellant shall appear as ordered by this court or the Superior Court of Justice.”

[3] Kevin Brown was convicted, by a jury, of trafficking in a controlled substance and possession of the proceeds of crime. He appeals the conviction on the basis that he received ineffective assistance of counsel at trial.

[4] The Crown acknowledges that the absence of mutual communication and confidence between the appellant and his trial counsel led to the presentation of a defense that was in adequate and unfair. In short, the Crown concedes that the fairness of the appellant’s defence was undermined by the conduct of trial counsel and that the appeal must be allowed.

[5] In the circumstances, we are satisfied that the verdict cannot be taken as a reliable assessment of the appellant’s culpability. Accordingly, the appeal is allowed and a new trial ordered. Bail according to the attached draft order, on consent.