New trial ordered due to ineffective legal assistance: Ontario Court of Appeal

Court stressed the importance of maintaining written instructions from clients

New trial ordered due to ineffective legal assistance: Ontario Court of Appeal
Craig Bottomley acted for the appellant in the appeal

A man convicted for possession of cocaine for the purpose of trafficking will have the conviction set aside and get a new trial, after the Ontario Court of Appeal found he received ineffective legal assistance.

In R. v. Trought, 2021 ONCA 379, the appellant, Michael Trought, successfully argued he had been blindsided by his trial counsel’s decision to admit his voir dire testimony into the trial via a blended procedure.

The police had executed a search warrant and found 2.5 kilograms of cocaine in Trought’s apartment. The voir dire hearing concerned his motion to challenge the evidence under s. 8 of the Charter, the right to be secure against unreasonable search and seizure.

In what the Court of Appeal said was a “somewhat unique” approach to attacking a search warrant, Trought’s testimony was intended to suggest that either the confidential informant the police used for the warrant did not exist, or the information that person provided was fabricated.

While most of the s. 8 motion related to the search warrant, cross-examination produced Trought’s admission that he trafficked cocaine. He said a portion of what was found in his apartment was his, the rest his supplier’s, and that he had a small-scale operation with just a few clients.

After the testimony, having heard evidence unrelated to the issuance of the search warrant, Superior Court Justice Robert Goldstein “said that he assumed it was meant to be a blended procedure,” said the Court of Appeal’s decision. Trial counsel responded in the affirmative. Justice Goldstein later dismissed the Charter application, finding Trought was not a credible witness. He was found guilty and given 5.5 years.

“There are a few decisions that the client absolutely gets to make,” says Craig Bottomley, who acted for Trought on appeal, along with Andrea Vanderheyden. “And those decisions are sacrosanct. And one of those decisions is whether or not to testify.”

The decision in R. v. Trought contains “practical guidance for defence counsel,” says Lisa Csele, Crown Counsel on the case.

“Counsel are legal experts who help their clients navigate the criminal trial process by providing sound advice on the law and strategy,” she says. “However, there are some decisions which are the client’s to make: whether or not to testify, how to plead, how to elect, etc.”

“And it is the client who instructs counsel on these points, in the context of having received competent legal advice. The Court emphasized that these instructions should be written down and kept in the file as a best practice.”

Trought’s claim for ineffective assistance of counsel was based on “the fundamental unfairness” that trial counsel failed to advise him on the implications of his testimony and did not obtain proper instructions on the decision to apply his testimony at trial, said the decision.

When pursuing a claim for ineffective assistance, the new lawyer first goes to the trial counsel to request any information that would obviate the need to make the application, says Bottomley. Then, the lawyer requests all of the trial files, so they can investigate the claim and the trial counsel’s competency. The lawyer prepares an affidavit setting out the grounds for the claim, and the trial counsel prepares an affidavit in response. Ideally, trial counsel proceeds with the help of a lawyer assigned by LawPRO, but trial counsel in this case elected not to use one, he says. 

Once both affidavits are filed, they are subject to cross-examination.

In his affidavit, Trought said he believed his testimony on the s. 8 motion would not be a part of the “substantive trial,” and had he known the evidence would be admissible, he would not have given it. He also said he did not know what a blended trial was.

Trial counsel rejected Trought’s version of events, and said the latter was “fully aware” of the tactics at play. He also said he had known Trought for many years and that he was “a career drug dealer.”

The Court of Appeal said trial counsel’s assertion about his former client “was at odds with the appellant’s trial evidence, and his evidence on the fresh evidence application.” The Court noted Trought had a clean criminal record and had never been charged with an offence. 

“I appreciate that a claim of ineffectiveness is unpleasant for the lawyer who is the target of such an allegation. However, such gratuitous comments about a former client are unhelpful and unnecessary to respond to the allegations of ineffectiveness,” said the Court.

The Court found Trought had not received proper legal advice about his right to decide whether to authorize “the expanded use of his testimony.” The trial transcript and cross examination “strongly suggest” the first time trial counsel “turned his mind to the possibility of a blended procedure” was when Justice Goldstein raised the issue, mid-trial. The record shows he then agreed to it without first consulting Trought, said the Court.

The Court also found that Trought was not made aware of the concept of constructive possession. He testified that only a half kilogram of the 2.5 kilograms of cocaine found in his apartment was his. But having admitted control over the apartment and his knowledge of the presence of his friend’s cocaine, that was a distinction without a difference for his legal culpability.

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