Published On: Dec 19,2022
In Rex v. McDonald, 2022 ONCA 838, the Ontario Court of Appeal set aside a defendant’s convictions for aggravated assault and threatening death based on an finding that the appellant received ineffective assistance from his trial counsel resulting in a miscarriage of justice. The indexed conduct of counsel included her improper disclosure of the appellant’s statement to the Crown, without the appellant’s knowledge or consent.
The Court itemized various issues relative to the trial counsel’s conduct of the matter at para 12:
 Before receiving Crown disclosure, the appellant’s trial counsel told him he “needed” to prepare a “statement” describing his background, relationship with the complainant, and his response to the allegations. The appellant followed his counsel’s instructions. Then, in the hope of securing an agreement to resolve the case by way of a peace bond, and after making some minor revisions, trial counsel disclosed this statement to the Crown. Counsel did not obtain written instructions from the appellant authorizing the disclosure, nor does her file contain any note, memo or docket capturing any discussion between her and the appellant about the statement’s purpose and what she was going to do with it. In fact, examination of trial counsel revealed that she did not discuss any of the following with the appellant: 1) settlement privilege; 2) the unlikelihood of a resolution (in a domestic assault case) that would allow him to enter into a bond in exchange for the charges being withdrawn; 3) how disclosing the statement to the Crown amounted to a waiver of his right to silence; 4) the specific risks associated with being cross-examined on the statement’s contents; and 5) the risks associated with preparing a statement before reviewing disclosure.
The Crown cross-examined the appellant on the statement at trial. The court observed (at para. 27) that counsel “either did not appreciate – or did not want to take the time to investigate and inform herself about – the protection settlement privilege might afford the appellant.” Furthermore the Court further stated at para. 28 that counsel made “fundamental decisions without instructions. It was essential that the appellant understand that he enjoyed the right to silence and that he did not have to provide any information to the Crown. The appellant did not (and could not reasonably have been expected to) understand this, and trial counsel took no steps to ensure he did.”
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