Court File and Parties

CITATION: R. v. Guthro, 2010 ONCA 94

DATE: 20100209

DOCKET: C48344

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Ronald Guthro

Applicant (Appellant)

Counsel: Nicholas A. Xynnis, for the appellant Benita Wassenaar, for the respondent

Heard: February 1, 2010 On appeal from the conviction entered by Justice H.R. McLean of the Superior Court of Justice dated September 28, 2005 and the sentence imposed on December 6, 2005.

APPEAL BOOK ENDORSEMENT

[1] We do not agree that trial counsel’s representation constituted ineffective assistance warranting a new trial. We think the appeal fails on the “prejudice” arm of the ineffective assistance of counsel test.

[2] Mr. Raven’s proposed evidence goes to two factual issues that are said to be crucial to the complainant’s evidence. On one of the points (the hot tub incident), Mr. Raven’s evidence was consistent with the complainant’s. On the other (the timing of the complainant’s break up with the former boyfriend), Mr. Raven’s evidence became equivocal on cross-examination. That evidence could not have affected the result at trial.

[3] The proposed cross-examination of the complainant on inconsistencies between her evidence and her statement could not reasonably have been expected to affect the result. She was consistent throughout that the events occurred when she was 16. This places the events in the first part of 2002. The fact that she said 2001 in her initial statement, while at the same time indicating she was 16 when the events occurred, is not the kind of inconsistency that could reasonably be expected to tip a credibility finding against the complainant.

[4] The appeal is dismissed.