R. v. Agostino
Counsel's decision not to lead the contested evidence and not to pursue the conspiracy/false reputation theory was a reasonable tactical decision under the objective standard and did not amount to ineffective assistance; the appeal from conviction is dismissed.
Source-derived case information.
- Citation
- 2010 ONCA 895
- Parties
- Respondent: Her Majesty the Queen; Appellant: David Agostino
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 23 December 2010
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence (sentence Appeal Dismissed as Abandoned)
- Outcome
- Appeal from conviction dismissed; sentence appeal dismissed as abandoned.
- Legal Topics
- Ineffective Assistance of Counsel, Trial Strategy, Evidence Admissibility, Standard of Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
David Agostino
Appellant
Procedural Posture
Criminal / Appeal From Conviction and Sentence (sentence Appeal Dismissed as Abandoned)
Legal Issues
- 1 Whether trial counsel rendered ineffective assistance of counsel
- 2 Whether counsel should have led evidence about why count 5 was withdrawn
- 3 Whether counsel should have pursued a conspiracy/false reputation theory
Ratio Decidendi
Counsel's decision not to lead the contested evidence and not to pursue the conspiracy/false reputation theory was a reasonable tactical decision under the objective standard and did not amount to ineffective assistance; the appeal from conviction is dismissed.
Court Disposition
Appeal from conviction dismissed; sentence appeal dismissed as abandoned.
Orders
- Appeal from conviction dismissed.
- Sentence appeal dismissed as abandoned.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Agostino Collection Decisions of the Court of Appeal Date 2010-12-23 Neutral citation 2010 ONCA 895 Docket numbers C39823 Judges Rosenberg, Marc; Goudge, Stephen Thomas; Blair, Robert Ashley Subject Criminal Decision Content CITATION: R. v. Agostino, 2010 ONCA 895 DATE: 20101223 DOCKET: C39823 COURT OF APPEAL FOR ONTARIO Rosenberg, Goudge and Blair JJ.A. BETWEEN: Her Majesty the Queen Respondent and David Agostino Appellant G. Peter Abrahams, for the appellant Roger Pinnock, for the respondent Heard and endorsed: December 22, 2010 On appeal from conviction imposed by Justice Deborah J. Austin of the Ontario Court of Justice, dated January 17, 2003 and sentence imposed on March 19, 2003. APPEAL BOOK ENDORSEMENT [1] The sentence appeal is dismissed as abandoned. [2] As to the appeal from conviction, the only ground of appeal pursued is the allegation of ineffective assistance of counsel. We are not persuaded that this ground of appeal has been made out. Trial counsel’s conduct is to be assessed on an objective standard of reasonableness. The appellant submits that trial counsel should have led evidence as to the reason why count 5 was withdrawn and pursued the theory that the appellant was the victim of a conspiracy in the residence because of a false reputation. Trial counsel was cross-examined and explained why he did not pursue that theory. On this record, his decision was a reasonable tactical decision. To go down that route would have inevitably led to the admission of highly prejudicial evidence that could have made a difficult defence even more difficult. At the very least, it cannot be said that counsel’s decision was unreasonable. Accordingly, the appellant has failed to demonstrate that counsel’s conduct was incompetent. [3] Accordingly, the appeal from conviction is dismissed.