Appellant convicted at trial of assault with a weapon. Sole issue at trial was ID. Dock ID and appellant identified by police officer from security video. Issue on appeal of whether trial counsel’s concession of identity in closing argument, and failure to raise issues of video quality and frailties of dock ID constituted ineffective assistance.

Held: Appeal dismissed.

Court reviewed three-part test for incompetence of counsel: appellant must establish (1) the factual grounds for the incompetence claim; (2) that counsel’s representation was incompetent, and (3) that “the incompetent representation resulted in a miscarriage of justice”: R v Joanisse (1995), 85 OAC 186. Second and third parts not met. No evidence from appellant or trial counsel to support incompetence. Trial evidence “pointed unerringly to the appellant’s guilt”. Appellant did not establish that there was “a reasonable probability (more than a mere possibility but less than a likelihood) that the appellant would not have been convicted had defence counsel’s final argument included discussion regarding the two matters of complaint”.

P. Royal – Defence Counsel