COURT OF APPEAL FOR ONTARIO

DATE: 2006-12-19

DOCKET: C44175

RE: Her Majesty the Queen (Respondent) – and – Glynn Allen Perkins (Appellant)

BEFORE: Sharpe, Blair and MacFarland JJ.A.

COUNSEL: Ed Hung for the appellant Philip Perlmutter for the respondent

HEARD & RELEASED ORALLY: December 19, 2006

On appeal from the conviction dated on July 26, 2005, and sentence dated September 7, 2005, imposed by Justice Timothy C. Whetung of the Ontario Court of Justice.

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

[1] The appellant rests his conviction appeal entirely on the fresh evidence application. We are not persuaded that the appellant suffered any prejudice as a result of the alleged conflict leading to the alleged inadequate representation. Nor are we satisfied that there was a conflict giving rise to inadequate representation.

[2] The appellant admitted that he never told his trial counsel that he intended to deliver the press release with a photo to the complainant’s current boy friend, her sister and her best friend. That was the gravamen of counts 2 and 3 and there was no conflict in relation to that conduct. The fact that trial counsel reviewed the press release is beside the point. Moreover, the only possible conclusion that can be drawn from this record is that the appellant was entirely aware of what his trial counsel had done and of the defence he intended to advance and with full knowledge of those facts he elected to be represented by that counsel.

[3] In oral argument, Mr. Hung advanced for the first time the submission that entering the agreed statement of facts amounted to inadequate representation. We disagree. We find persuasive trial counsel’s explanation for this strategy. It protected the appellant from a potentially devastating cross-examination on the planning and preparation – including obtaining addresses of the intended recipients – to deliver the press release to the boy friend, sister and best friend of the complainant.

[4] We see no error of principle that would entitle us to substitute a conditional sentence. In our view, the trial judge gave careful consideration to the possibility of a conditional sentence and offered sufficient reasons for rejecting that option.

[5] Accordingly, the conviction appeal is dismissed. Leave to appeal sentence is granted but the appeal from sentence is dismissed.