Trial counsel failed to follow accused’s instructions that he wanted to testify

Ontario criminal | Appeal

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Trial counsel failed to follow accused’s instructions that he wanted to testify

Application to introduce fresh evidence and appeal from conviction. Accused convicted of possession of weapon for dangerous purpose and aggravated assault following road rage incident. He was sentenced to 90 days’ incarceration, to be served intermittently, plus three years’ probation. Accused appealed from his convictions on ground of ineffective assistance of counsel. He argued trial counsel failed to follow his instructions that he wanted to testify. Application to introduce fresh evidence granted, appeal allowed and new trial ordered. Record of trial proceedings and fresh evidence filed by accused indicated that despite repeated efforts by both accused and Crown, and direct orders of court, accused’s trial counsel failed to respond to accused’s allegations against him and failed to provide trial brief or any associated documents to accused or Crown. Throughout, accused instructed trial counsel that he wished to testify at trial. Had he been permitted to testify at trial, accused’s testimony would have challenged complainant’s credibility; challenged evidence of alleged eyewitness to assault; sought to corroborate other defence evidence led at trial; and cast some doubt on Crown’s assertion that accused was not acting in self-defence. Accused required assistance of Tagalog interpreter at trial and did not understand some remarks by his trial counsel and trial judge. After accused’s trial, his trial counsel was disbarred by Law Society of Upper Canada based in part on complaints from other clients that he failed to obtain or follow their instructions. In absence of some explanation or response from accused’s trial counsel, accused’s claim that he instructed his counsel that he wished to testify and was prevented from doing stood uncontradicted.
R. v. Eroma (Mar. 28, 2013, Ont. C.A., J. Simmons J.A., E.A. Cronk J.A., and E.E. Gillese J.A., File No. CA C52330) 106 W.C.B. (2d) 684.

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