Failure of Counsel to Review Disclosure Results in Finding of Ineffective Assistance of Counsel


In R. v. E. H., 2017 ONCA 423, the performance of trial counsel fell below the standard of reasonable professional assistance in a criminal case.  As there was a "reasonable possibility" that the outcome of the trial would have been different had trial counsel properly discharged his professional obligations, the appellant’s convictions were set aside and a new trial ordered.

Trial counsel failed to view the three-hour video statement that the appellant gave to the police. The DVD containing the statement was defective, and trial counsel did not request another copy from the Crown. Instead, he relied upon a synopsis of the statement prepared by the police. Counsel failed to review the statement with the appellant, despite the appellant’s repeated requests.

The appellant was significantly prejudiced, as a result: caught unawares when he was cross-examined by the Crown on his statement at trial.  The prejudice was compounded (or at least let to lie) by the fact that his trial counsel was not in a position to advance an effective reexamination to rehabilitate the evidence that his client had given during cross-examination.

Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca)

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