Benrouayene c. R., 2018 QCCA 1891
Dans cette affaire, la Cour d’appel du Québec ordonne un nouveau procès parce que l’avocate de l’accusé qui n’avait aucune expérience en droit criminel a commis plusieurs erreurs qui selon la Cour, ont privé l’accusé d’une défense pleine et entière. D’où l’importance de bien choisir son avocat et de s’assurer que celui-ci a l’expérience requise en droit criminel.
[18] Trial counsel’s inexperience in criminal law is not a ground on which to claim incompetence or ineffective assistance.[8 Her failure to cross-examine rigorously and her failure to call defence evidence, notably her failure to call the appellant to testify, might best be described as tactical misjudgment. By themselves these decisions also cannot be characterised as incompetence. Misjudgments of this kind are not uncommon. In this instance, however, they must be considered with other factors:
trial counsel did not meet with the appellant until the day of the trial, and even then only briefly;
trial counsel suspected that the appellant’s explanation of his presence in the dwelling might have been coached in order to defeat the presumption of intention;
trial counsel did not consult with him at the conclusion of the prosecution evidence and did not receive at that time specific instructions that the appellant would not testify;
trial counsel did not call the appellant to testify when it was clearly the only reasonable option in defence.
[19] The cumulative effect of these various factors, beginning most notably with the first, is that the appellant was deprived of the opportunity to make full answer and defence with the effective assistance of counsel and for this reason alone it cannot be said that the appellant had a fair trial. In these circumstances the apparent strength of the prosecution evidence does not off-set this conclusion. In this respect it is helpful to recall the observation of the Supreme Court in G.D.B.:
34 Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice. While it is not the case that defence lawyers must always obtain express approval for each and every decision made by them in relation to the conduct of the defence, there are decisions such as whether or not to plead guilty, or whether or not to testify that defence counsel are ethically bound to discuss with the client and regarding which they must obtain instructions. The failure to do so may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice.[9]
[20] As acknowledged in the hearing before this court, there is no basis on which to affirm that the result at trial would have been different if the appellant had been more effectively represented. In particular, it is mere speculation whether testimony by the appellant could have raised a reasonable doubt whether he intended to commit an indictable offence in the dwelling. But this is not decisive. This is not a case of misjudgment in the course of effective representation; nor is it a case of regret over a failed strategy in the conduct of a trial. The appellant was not only represented ineffectively; trial counsel did not take charge of the file until she first met the appellant on the day of the trial and even then she met with him only for a few minutes. This is incompatible with any concept of effective representation. For all practical purposes he was unrepresented and therefore did not have the benefit of full answer and defence in a fair trial.[10] As with the presumption of innocence, this protection is fundamental for any person who is in jeopardy of conviction and sentence in a criminal prosecution. As Proulx J.A. said in Delisle, the function of this court is to ensure that the appellant had a fair trial.[11] If the result of ineffective assistance by trial counsel is an unfair trial of an accused person, this is sufficient to allow the appeal.
[21] There is no suggestion that counsel for the appellant is an incompetent lawyer but it is clear, on a balance of probabilities, that her acts and omissions in this case deprived the appellant of the opportunity to make full answer and defence. There is also no suggestion that the prosecution evidence in this case could not prove the offence charged to the necessary standard of proof. Where an accused person is deprived of the right to make full answer and defence with the effective assistance of counsel, the fairness of the trial is compromised and the only remedy is to restore that right and the opportunity to answer the charge in a new trial.
