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The Court of Appeal for Ontario dismissed an ineffective-assistance appeal in a sexual assault and sexual interference case, finding no basis for the claimed prejudice.
The Ontario Court of Appeal allowed the appeal, finding ineffective assistance of counsel on the appellant’s right to testify and ordering a new trial by judge and jury.
The Court of Appeal for Ontario granted judicial interim release pending appeal after finding Nabi’s ineffective-assistance appeal was not frivolous and detention was unnecessary.
Ontario Court of Appeal dismissed a fraud appellant’s fresh-evidence claim and upheld a $300,000 restitution order, finding he freely chose not to testify.
The Court found trial counsel failed to provide clear, documented, and adequate advice or preparation regarding the appellant's decision to testify; absence of contemporaneous notes and counsel's flawed legal assessment (particularly regarding the use of medical evidence and criminal record) meant counsel effectively made the decision for the accused, rendering the trial unfair and constituting a miscarriage of justice; accordingly fresh evidence about counsel's advice was admitted in part, the conviction was set aside and a new trial ordered.
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The court refused severance of two Abbotsford counts from nine Kamloops counts in a sexual assault indictment, finding a joint trial was in the interests of justice.
Application for bail pending appeal dismissed because most grounds of ineffective assistance were frivolous or unsupported, and the remaining not-frivolous claim about advice to testify did not clearly surpass the not frivolous threshold on the record; given seriousness of sexual offences and weak, non-credible evidentiary foundation (no counsel evidence, no waiver, evolving affidavits) the reviewability interest did not outweigh enforceability and public interest.
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Severance was required because the two incidents, though occurring the same day and location, lack sufficient legal and factual nexus, involve different complainants and materially different allegations and defences, the accused has an objectively justifiable intention to testify in respect of the afternoon incident but not the morning incident, and the Crown's similar fact evidence application is not viable; the prejudice to the accused from a joint trial outweighs efficiency considerations, therefore interests of justice require severance.
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Given counsel's documented awareness of ongoing domestic abuse, her failure to explore and advise on severance, inadequate preparation and advice regarding the appellant testifying, and insufficient preparation of a defence witness amounted to ineffective assistance that rendered the trial unfair; fresh evidence (counsel notes and affidavit) admitted and a new trial ordered as the appropriate remedy.
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Trial counsel's incorrect legal advice deprived the accused of the ability to make an informed decision about whether to testify, rendering the trial unfair and amounting to a miscarriage of justice; fresh evidence was admissible, the conviction was overturned and a new trial ordered.
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