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APPEALS - Grounds - Miscarriage of justice

Wednesday, July 07, 2021 @ 5:42 AM  

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Appeal by Trought from his conviction for possession of cocaine for the purpose of trafficking. Executing a search warrant, the police found over two kilograms of cocaine in the appellant’s apartment. During a voir dire to challenge the search warrant, the appellant admitted he trafficked in cocaine and that half a kilogram of the cocaine was his. He claimed the rest belonged to a friend who was also his supplier. Defence counsel agreed that the trial could proceed in a blended fashion and invited the trial judge to find the appellant guilty. The trial judge dismissed the appellant’s application for a stay of proceedings based on a 34-month delay. The trial judge concluded the transitional exceptional circumstances applied. The appellant adduced his trial counsel had not advised him on the implications of testifying in the voir dire and had not obtained instructions before agreeing to a blended procedure. Trial counsel could not specify when he discussed a blended trial with the appellant or when the decision was made to go with a blended procedure. He did not obtain written instructions. He did not discuss constructive possession with the appellant.

HELD: Appeal allowed; new trial ordered. The trial judge did not err in dismissing the appellant’s Canadian Charter of Rights and Freedoms s. 11(b) application. The appellant did not receive proper legal advice about his right to decide whether to testify, nor did he authorize the expanded use of his testimony. The inadequate legal advice rendered the appellant’s trial unfair.

R. v. Trought, [2021] O.J. No. 3010, Ontario Court of Appeal, K.N. Feldman, P.D. Lauwers and G.T. Trotter JJ.A., June 3, 2021. Digest No. TLD-July52021005