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Criminal - Practice. 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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