Conviction Set Aside Due To Ineffective Assistance Of Trial Counsel

• Published date: 10 June 2021
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation, Food and Drugs Law
• Law Firm: Gardiner Roberts LLP
• Author: Mr James R.G. Cook

In R. v. Trought, 2021 ONCA 379 the Court of Appeal for Ontario ordered a new trial for a man convicted of possession of cocaine for the purposes of trafficking on the basis that he had received ineffective assistance from his trial counsel.

The case against the appellant arose from a search of his apartment, where the police found a large amount of cocaine and drug paraphernalia. The search was conducted pursuant to a warrant that was based on information supplied by a confidential informant. The appellant challenged the validity of the warrant under section 8 of the Canadian Charter of Rights and Freedoms by attacking the information said to have come from the informant.

Trial counsel initially challenged the validity of the search warrant by alleging that the police fabricated the information said to have come from the confidential informant. He later changed position, maintaining that if the information did originate with the confidential informant, one part about the appellant showing off bricks of cocaine from the trunk of the car was so ridiculous that it must be false.

The appellant testified in the "voir dire" hearing for the Charter challenge. In cross-examination, the appellant admitted to trafficking in cocaine. He acknowledged that half a kilogram of the cocaine seized from his apartment belonged to him but the rest belonged to a friend (who was also his supplier). The appellant allowed his friend to leave drugs in the apartment on the day of the seizure.

After the appellant testified, during a colloquy with the judge, trial counsel agreed that the trial could proceed in a blended fashion, meaning that the appellant's voir dire evidence would be applied to the main trial if the Charter application failed. It did. The trial judge was then invited to find the appellant guilty, which he did. The appellant was sentenced to 5.5 years' imprisonment.

On appeal, the appellant argued that he had received ineffective assistance from his trial counsel. Specifically, the appellant submitted that trial counsel agreed to the "blended procedure" during the Charter application, and after he had testified, without obtaining his instructions to do so.

The appellant claimed that he was blindsided by his counsel's decision, and that he thought that his evidence would only be used for the Charter hearing. The appellant said that he never intended to confess under oath to possessing all of the cocaine seized from his apartment. Had he been properly advised...