R. v. Mallais
Leave to appeal was refused because the three‑year delay in advancing the appeal after fresh evidence was obtained was largely unexplained, and even if leave had been granted the ineffective assistance argument failed because counsel's decision not to use the videotape was a defensible tactical choice given that...
Source-derived case information.
- Citation
- C30763
- Parties
- Appellant: Joseph Mallais; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 7 March 2005
- Procedural Posture
- Criminal / Leave to Appeal From Dismissal of Summary Conviction Appeal
- Outcome
- Leave to appeal refused
- Legal Topics
- Leave to Appeal, Fresh Evidence, Delay, Videotape Evidence, Trial Counsel Competence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mallais
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal / Leave to Appeal From Dismissal of Summary Conviction Appeal
Legal Issues
- 1 Whether leave to appeal should be granted despite an unexplained three‑year delay
- 2 Whether counsel's decision not to adduce a videotape constituted ineffective assistance of counsel
- 3 Whether the contents of the videotape undermined trial testimony such that counsel's failure to use it was prejudicial
Ratio Decidendi
Leave to appeal was refused because the three‑year delay in advancing the appeal after fresh evidence was obtained was largely unexplained, and even if leave had been granted the ineffective assistance argument failed because counsel's decision not to use the videotape was a defensible tactical choice given that parts of the tape supported the prosecution's case and therefore did not meet the threshold for ineffective assistance.
Court Disposition
Leave to appeal refused
Orders
- Leave to appeal refused.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Mallais Collection Decisions of the Court of Appeal Date 2005-03-07 Docket numbers C30763 Judges Catzman, Marvin Adrian; Doherty, David H.; Goudge, Stephen Thomas Subject Criminal Decision Content DATE: 20030307 DOCKET: C30763 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. JOSEPH MALLAIS (Appellant) BEFORE: CATZMAN, DOHERTY and GOUDGE JJ.A. COUNSEL: Frank Bernhardt for the appellant Scott Hutchison for the respondent HEARD: March 4, 2003 ORALLY RELEASED: March 4, 2003 On appeal from the dismissal of a summary conviction appeal imposed by Judge M. Morten on September 23, 1998. ENDORSEMENT [1] Given the largely unexplained three-year delay in moving this appeal forward after the fresh evidence was gathered, we would refuse leave to appeal to this court. [2] In any event, had we granted leave, we find no merit in the ineffective assistance of counsel argument advanced on behalf of the appellant. We will deal with only one aspect of that argument. Putting the appellant’s submission concerning the videotape at its highest, the contents of the tape were inconsistent with some of the specific observations described by a police officer in her testimony at trial. In oral argument, counsel conceded, however, that parts of the videotape were certainly consistent with the appellant being under the influence of alcohol at the relevant time. In our view, counsel’s decision not to use this videotape, given the description of its contents that we have been provided with, does not even approach the level of ineffective assistance. [3] In the result, leave to appeal is refused. “M.A. Catzman J.A.” “Doherty J.A.” “S.T. Goudge J.A.”