R. v. Smith
The expert evidence was inadmissible because its factual foundation was not established at trial or in the affidavits, and the appellant therefore failed to prove counsel was incompetent or that there was a reasonable probability of a different verdict; accordingly the appeal is dismissed.
Source-derived case information.
- Citation
- C24425
- Parties
- Appellant: Paul Smith; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 29 January 1999
- Procedural Posture
- Criminal / Appeal (court of Appeal for Ontario)
- Outcome
- Appeal dismissed.
- Legal Topics
- Ineffective Assistance of Counsel, Expert Evidence Admissibility, Standard of Review on Appeal, Causation of Impairment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Smith
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal / Appeal (court of Appeal for Ontario)
Legal Issues
- 1 Whether trial counsel was ineffective for failing to call expert evidence
- 2 Whether the purported expert evidence of Dr. Perkons had an adequate evidentiary basis to be admitted
- 3 Whether there is a reasonable probability the verdict would have been different if expert evidence had been called
Ratio Decidendi
The expert evidence was inadmissible because its factual foundation was not established at trial or in the affidavits, and the appellant therefore failed to prove counsel was incompetent or that there was a reasonable probability of a different verdict; accordingly the appeal is dismissed.
Court Disposition
Appeal dismissed.
Orders
- Appeal dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Smith Collection Decisions of the Court of Appeal Date 1999-01-29 Docket numbers C24425 Judges Catzman, Marvin Adrian; Goudge, Stephen Thomas; O’Connor, Dennis Subject Criminal Decision Content DATE: 19990129 DOCKET: C24425 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) and PAUL SMITH (Appellant) BEFORE: CATZMAN, GOUDGE and O'CONNOR JJ.A. COUNSEL: M. Rother, for the appellant D. Lepofsky, for the respondent HEARD: January 28, 1999 ENDORSEMENT [1] Counsel for the appellant and for the respondent agreed that the affidavit evidence filed by both of them should be admitted and considered on the issue of the appellant's claim of a denial of the effective assistance of counsel at trial. [2] In our view, the purported expert evidence of Dr. Perkons fails to establish the opinion for which he contends, because the evidentiary basis on which that opinion is grounded was not made out at trial and certainly was not made out on the information available to Mr. Warren as recited in his uncontradicted affidavit. [3] In these circumstances, the appellant has shown neither that Mr. Warren acted incompetently in failing to call expert evidence at trial nor that, even if it could be said that he did, there is a reasonable probability that the appellant would not have been convicted. [4] The appellant's position is not advanced by the submission, made for the first time on the argument of this appeal, that the appellant's symptoms of impairment could not have been caused by the sole consumption of alcohol, an argument that involves a factual finding (not made by the trial judge) regarding the amount of alcohol consumed by the appellant and that does not raise a question of law alone. [5] Accordingly, the appeal is dismissed.