Court of Appeal for Ontario

Citation: R. v. Kirlew, 2007 ONCA 476

Date: 20070627

Docket: C44494

Before: MOLDAVER, FELDMAN and LANG JJ.A.

Between:

HER MAJESTY THE QUEEN

Respondent

and

LLOYD KIRLEW

Applicant/Appellant

Counsel:

Michael A. Crystal, for the appellant

John McInnes, for the respondent

Heard and endorsed: June 26, 2007

On appeal from the decision of Justice Tuscano-Roccamo of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated October 24, 2005, dismissing the appeal from the conviction entered by Justice Judith C. Beaman of the Ontario Court of Justice, dated January 29, 2003.

APPEAL BOOK ENDORSEMENT

[1] In our view, this was not a situation that placed trial counsel in a conflict position with the appellant.

[2] Based on the record, we are not at all persuaded that trial counsel’s failure to cross-examine the complainant on the December 2002 incident (breach of recognize) constituted ineffective assistance of counsel. On the contrary, counsel’s decision involved a judgment call that in our view was reasonable.

[3] In any event, there was no prejudice to the appellant. The trial judge disbelieved the appellant, in part by reason of his “slip-up” admission in cross-examination that the complainant did not want him in her bedroom and his intransigence in refusing to explain why the complainant took that position. In the circumstances, we are not persuaded that even if the cross-examination had gone forward, it would have made any difference to the result.

[4] Accordingly, leave to appeal is granted but the appeal is dismissed.