Court of Appeal for Ontario

Citation: R. v. Jex, 2007 ONCA 737

Date: 20071025

Docket: C40492

Between:

HER MAJESTY THE QUEEN

Respondent

and

KEVIN JEX

Appellant

Before: DOHERTY, BLAIR JJ.A. and THEN R.S.J. (ad hoc)

Counsel: Gregory Lafontaine for the appellant Alex Alvaro for the respondent

Heard and orally released: October 19, 2007

On appeal from the conviction entered by Justice J. Kenkel of the Ontario Court of Justice on October 18, 2002 and the sentence imposed on November 22, 2002.

ENDORSEMENT

[1] Counsel argued one issue on the appeal. He contends that the appellant was denied the effective assistance of counsel at trial because trial counsel was not adequately prepared to defend the appellant at trial.

[2] The appellant, who was in custody, was represented by a lawyer in the early stages of the proceedings, including the bail hearing. Shortly before the scheduled trial date, his lawyer asked a second lawyer to assume carriage of the matter. He forwarded the brief to the second lawyer. That lawyer attended on what was listed as a trial date on the understanding that the appellant would be pleading guilty. For reasons which need not detain us, the trial judge refused to accept the guilty plea. The appellant was very anxious to proceed with his trial and the matter went forward with the trial on that date. The appellant did not testify and he was convicted.

[3] The appellant argues that trial counsel had no chance to prepare for trial and that the absence of preparation creates a manifest injustice regardless of whether counsel’s level of preparation had any effect on the actual outcome of the trial.

[4] We cannot accept this submission. In our view, claims of ineffective assistance of counsel at trial based on allegations of the inadequacy of counsel’s preparation do not go to the appearance of the fairness of the trial, but lead to a miscarriage of justice only if the lack of preparation is shown to undermine the reliability of the verdict reached at trial.

[5] There is no suggestion on this appeal that the appellant was in any way prejudiced by the conduct of the trial by his lawyer. There is also no suggestion that the trial could have been conducted in any different way by a more prepared trial counsel. For example, there is no suggestion that this appellant would ever have testified at the trial. We observe that the trial judge who was clearly not pleased with counsel’s late arrival at the outset of this proceeding, commented on the effectiveness of counsel’s conduct of the defence in his reasons for judgment. We also note that there is no affidavit filed by the appellant in this court in support of this ground of appeal.

[6] The allegation of ineffective assistance of counsel has not been made out by the appellant and we would not give effect to that ground of appeal.

[7] There is a second ground of appeal referred to in the factum, but it was not argued in oral submissions by counsel and, in our view, it cannot succeed.

[8] There was also a sentence appeal, but we are advised by counsel that that appeal has become moot and need not be addressed on its merits.

[9] The appeal from conviction is dismissed and the appeal from sentence is dismissed.

“Doherty J.A.”

“R.A. Blair J.A.”

“Edward Then R.S.J. (ad hoc)”