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Criminal - Practice. R. v. Zock
In R. v. Zock (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here where the primary issue was "that he received ineffective assistance from his trial counsel regarding the mode of trial that was chosen".
Here the court comments on the counsel practice issue of obtaining written instructions from their client:[51] Decisions of this court have stressed the importance of written instructions on fundamental decisions. In R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 140-42, Doherty J.A. referred to the strong presumption, applied in cases where ineffective assistance is alleged, that counsel is competent. A fact that was consistent with the presumption of competence in that case was that counsel had obtained a written direction on the fundamental decision there in issue (the accused’s decision not to testify). On the other hand, in R. v. Kaczmarek, 2021 ONCA 771, 407 C.C.C. (3d) 34, at para. 30, another case involving a claim of ineffective assistance involving regarding a decision not to testify, Trotter J.A. commented on how the absence of written instructions, though not necessarily an indicium of ineffectiveness, “is in tension with ‘the strong presumption of competence in favour of counsel’” referred to in Archer. See also R. v. R.W., 2023 ONCA 250, 167 O.R. (3d) 1, at para. 24. . R. v. Levesque
In R. v. Levesque (Ont CA, 2023) the Court of Appeal noted the burden on the Crown wrt to the particulars of the indictment:[7] In any event, as held in R. v. Ranger (2003), 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1 (C.A.), at para. 134, leave to appeal refused, [2011] S.C.C.A. No. 416, while the Crown is generally required to prove the particulars in an indictment, the Crown is not bound to prove its theory of the case for the court to enter a conviction. If the Crown presents a particular theory of the case, a defendant can be convicted based on a different theory, but only if the defendant is “able to present a full and fair defence”: Ranger, at para. 134; R. v. Groot (1998), 1998 CanLII 2151 (ON CA), 41 O.R. (3d) 280 (C.A.), aff’d 1999 CanLII 672 (SCC), [1999] 3 S.C.R. 664. . R v. Ilunga
In R v. Ilunga (Ont CA, 2023) the Court of Appeal considered the practice in criminal practice of obtaining written instructions regarding the decision to testify:[60] Notwithstanding that conclusion, it is worth recalling for the criminal defence bar the advice given numerous times by this court about the need to adhere to the best practice of obtaining written instructions from a client about the decision to testify. As Trotter J.A. wrote in R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 76-78:In R. v. W.E.B., 2012 ONCA 776, 366 D.L.R. (4th) 690, aff’d 2014 SCC 2, [2014] 1 S.C.R. 34, this court recognized that the failure to obtain written instructions is a question of professional prudence, not incompetence, but noted that the failure to do so is “ill‑advised and contrary to counsel’s best interests”: at para. 10.
The lawyer who fails to obtain written instructions risks exposure to unfounded allegations of unprofessionalism. And although not indicative of ineffectiveness itself, the failure to obtain instructions may undercut trial counsel’s attempts to defend against claims of ineffectiveness.
The failure to obtain written instructions also makes it more difficult for an appellate court to adjudicate claims such as the one advanced on this appeal. Written instructions may resolve competing claims on appeal. [Citations omitted.]
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