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Criminal - Practice. R. v. M.Z.
In R. v. M.Z. (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against "two counts of sexual assault, and one count of forcible confinement".
The court considers 'right to silence' tactical decisions, here in an ineffective assistance of counsel context:(2) The Choice to Testify
[40] The appellant’s second complaint is that trial counsel failed to advise him of his right not to testify.
[41] Trial counsel must clearly inform the client that they may choose whether or not to testify. This, too, is a fundamental decision about the conduct of the defence: G.D.B., at para. 34.
[42] Effective representation by counsel includes advice as to whether or not to testify and a review of the advantages and disadvantages of testifying in language that the accused person understands: R. v. D.A., 2020 ONCA 738, 396 C.C.C. (3d) 151, at paras. 32-33. Defence counsel are ethically bound to discuss the decision to testify and must obtain instructions from their clients about the client’s choice: Archer, at para. 139; G.D.B., at para. 34.
[43] A client cannot make an informed decision to testify unless they understand what is at stake: D.A., at para. 33. Counsel should document that discussion: D.A., at para. 33.
[44] In most cases, the accused must also demonstrate that there is a “reasonable possibility” the accused would have acted differently: White, at paras. 7 to 8; and Zock, at para. 61. This can be established by showing subjective prejudice.
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[51] The appellant has established the factual and performance components of his allegations of ineffective assistance. He has also met the prejudice component: since the accused was not advised of the advantages and disadvantages of testifying, this is a case where the circumstances raise sufficient concerns about trial fairness as to lead to a miscarriage of justice: G.D.B., at para. 34; White, at para. 7. Trial fairness was undermined here, resulting in a miscarriage of justice because trial counsel provided no advice or advice that was deficient such that the appellant was effectively precluded from making an informed choice about a fundamental decision affecting his defence: R. v. J.N.N., 2025 YKCA 11, at para. 61; R. v. Mehl, 2021 BCCA 264, at para. 145; K.K.M., at para. 91; Stark, at para. 20. . R. v. M.Z.
In R. v. M.Z. (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against "two counts of sexual assault, and one count of forcible confinement".
Here the court considers 'ineffective assistance from counsel' issues:[2] He appeals his conviction pursuant to ss. 686 (1)(a)(iii), (2)(b) and (5)(a) of the Criminal Code, R.S.C. 1985, c. C-46, on the basis that he received ineffective assistance from counsel. He also seeks an order admitting fresh evidence on his appeal against conviction.
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[4] On this appeal, the appellant claims that his trial counsel failed to explain, advise, or obtain his instructions regarding (i) his right to a trial by jury; (ii) his right not to testify, knowing that no adverse inference could be drawn should he decide not to testify; and (iii) his right to appear at trial in person rather than remotely. He also claims that his trial counsel failed to develop a trial strategy or conduct a proper cross-examination of the complainant on important issues, and had he done so, the verdict may have been different.
[5] The appellant therefore claims that these failures on the part of his trial counsel denied him a fair trial, resulting in a miscarriage of justice. Trial fairness may be undermined where an appellant has been denied the right to make fundamental and important decisions about his defence: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 34; R. v. White, 2022 SCC 7, [2022] 1 S.C.R. 64, at para. 7. These decisions include the rights in issue on this appeal: the right to a trial by jury; the right not to testify; and the right to appear in person at trial.
[6] He seeks to set aside his convictions and obtain an order for a new trial before judge and jury.
[7] It is clear from the record that trial counsel did not follow best practices in the following ways:a) Trial counsel never entered into a written retainer agreement with the appellant, and accepted several cash payments from the appellant over a period of two and one half years but seldom provided the appellant with contemporaneous receipts. He continued to do so even after being cautioned by Schreck J. for similar conduct in a separate legal proceeding in June 2023[2];
b) Trial counsel acknowledged that his “recordkeeping in this case was poor”. There was no written record, dockets or work product to confirm his review of the disclosure, discussions and advice to the appellant, or instructions received from the appellant; and
c) Trial counsel acknowledged on cross-examination that the appellant was unfamiliar with Canadian law and was “often confused” when asked basic questions throughout the retainer. There was therefore an enhanced need to explain, communicate and receive instructions. ....
II. THE TEST TO ESTABLISH INEFFECTIVE ASSISTANCE OF COUNSEL
[14] The right to effective assistance of counsel is constitutionally protected. It is a principle of fundamental justice, and part of the right to a fair trial: G.D.B., at para. 24; Joanisse at p. 57.
[15] In addressing allegations of ineffective assistance of counsel, an appellant must establish: (i) the facts on which the claim of incompetence is based, on a balance of probabilities (the factual component); (ii) trial counsel’s representation fell below the standard of reasonableness expected of a lawyer (the performance component); and (iii) a miscarriage of justice resulted from the incompetence (the prejudice component): R. v. Zock, 2025 ONCA 483, 450 C.C.C. (3d) 459, at para. 4; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 48; R. v. K.K.M., 2020 ONCA 736, at para. 55; and Joanisse, at p. 59.
[16] Allegations of incompetence must be assessed in light of the strong presumption that trial counsel was competent: Fiorilli, at para. 51. This is because “the confidential nature of the relationship between a lawyer and [their] client can make it easy for the client to make all kinds of unfounded allegations against [their] former lawyer”: R. v. Archer, (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 141.
[17] However, the absence of written instructions is “in tension with ‘the strong presumption of competence in favour of counsel’”: R. v. Kaczmarek, 2021 ONCA 771, 407 C.C.C. (3d) 34, at para. 54.
[18] Written instructions may resolve competing claims on appeal: see e.g. Archer, at para. 143; R. v. Wells (2001), 2001 CanLII 24130 (ON CA), 139 O.A.C. 356 (C.A.), at para. 61.
[19] The failure to obtain written instructions is a question of professional prudence, not incompetence. However, a lawyer who fails to obtain written instructions risks exposure to unfounded allegations of unprofessionalism, and the failure to obtain written instructions may undercut trial counsel’s attempts to defend against those claims: R. v. R.W., 2023 ONCA 250, 167 O.R. (3d) 1, at para. 24; R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 76-77; see also R. v. Hamzehali, 2017 BCCA 290, 350 C.C.C. (3d) 71, at para. 76, leave to appeal refused, [2017] S.C.C.A. No. 380.
[20] In assessing the performance component, incompetence is assessed using a reasonableness standard. The appellant must establish that the act or omission of counsel could not have been the result of reasonable professional judgment. Hindsight plays no part in the assessment: G.D.B., at para. 27. A strong presumption in favour of counsel also plays a role in this analysis: Archer, at para. 119.
[21] The Law Society of Ontario’s Rules of Professional Conduct (the “Rules”) may be used to assist in showing what may reasonably be expected of trial counsel: R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 (Ont. C.A.), at p. 247, leave to appeal refused: [1997] S.C.C.A. No. 248.
[22] The Rules specify that competent lawyers must ascertain client objectives, consider possible options, and advise the client on appropriate courses of action. Further, the Law Society’s Practice Management Guidelines provide that client instructions should be obtained and that in doing so, the lawyer should advise the client of the available options, the impact of choosing those options, and the estimated fees in proceeding with those options. It is also recommended that counsel explain the law, the facts, the circumstances and the assumptions upon which the advice is based.
[23] Finally, in assessing the prejudice component, a miscarriage of justice may occur where counsel’s substandard performance raises sufficient concerns about the reliability of the verdict or about the fairness or the appearance of fairness, of the trial: G.D.B., at para. 28; White, at para. 7; Zock, at para. 64; R. v. Papasotiriou, 2023 ONCA 358, 166 O.R. (3d) 266, at para. 138; Joanisse, at pp. 62-64.
[24] In this case, the appeal turns on the issue of trial unfairness that amounts to a miscarriage of justice. . R. v. Zock
In R. v. Zock (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here where the primary issue was "that he received ineffective assistance from his trial counsel regarding the mode of trial that was chosen".
Here the court comments on the counsel practice issue of obtaining written instructions from their client:[51] Decisions of this court have stressed the importance of written instructions on fundamental decisions. In R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 140-42, Doherty J.A. referred to the strong presumption, applied in cases where ineffective assistance is alleged, that counsel is competent. A fact that was consistent with the presumption of competence in that case was that counsel had obtained a written direction on the fundamental decision there in issue (the accused’s decision not to testify). On the other hand, in R. v. Kaczmarek, 2021 ONCA 771, 407 C.C.C. (3d) 34, at para. 30, another case involving a claim of ineffective assistance involving regarding a decision not to testify, Trotter J.A. commented on how the absence of written instructions, though not necessarily an indicium of ineffectiveness, “is in tension with ‘the strong presumption of competence in favour of counsel’” referred to in Archer. See also R. v. R.W., 2023 ONCA 250, 167 O.R. (3d) 1, at para. 24. . R. v. Levesque
In R. v. Levesque (Ont CA, 2023) the Court of Appeal noted the burden on the Crown wrt to the particulars of the indictment:[7] In any event, as held in R. v. Ranger (2003), 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1 (C.A.), at para. 134, leave to appeal refused, [2011] S.C.C.A. No. 416, while the Crown is generally required to prove the particulars in an indictment, the Crown is not bound to prove its theory of the case for the court to enter a conviction. If the Crown presents a particular theory of the case, a defendant can be convicted based on a different theory, but only if the defendant is “able to present a full and fair defence”: Ranger, at para. 134; R. v. Groot (1998), 1998 CanLII 2151 (ON CA), 41 O.R. (3d) 280 (C.A.), aff’d 1999 CanLII 672 (SCC), [1999] 3 S.C.R. 664. . R v. Ilunga
In R v. Ilunga (Ont CA, 2023) the Court of Appeal considered the practice in criminal practice of obtaining written instructions regarding the decision to testify:[60] Notwithstanding that conclusion, it is worth recalling for the criminal defence bar the advice given numerous times by this court about the need to adhere to the best practice of obtaining written instructions from a client about the decision to testify. As Trotter J.A. wrote in R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 76-78:In R. v. W.E.B., 2012 ONCA 776, 366 D.L.R. (4th) 690, aff’d 2014 SCC 2, [2014] 1 S.C.R. 34, this court recognized that the failure to obtain written instructions is a question of professional prudence, not incompetence, but noted that the failure to do so is “ill‑advised and contrary to counsel’s best interests”: at para. 10.
The lawyer who fails to obtain written instructions risks exposure to unfounded allegations of unprofessionalism. And although not indicative of ineffectiveness itself, the failure to obtain instructions may undercut trial counsel’s attempts to defend against claims of ineffectiveness.
The failure to obtain written instructions also makes it more difficult for an appellate court to adjudicate claims such as the one advanced on this appeal. Written instructions may resolve competing claims on appeal. [Citations omitted.]
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