Man wins new sex-assault hearing due to trial lawyer’s poor performance

Instead, the lawyer relied on a police-prepared synopsis and, despite repeated requests from E.H., never reviewed the statement with his client. Despite never having asked about the circumstances in which E.H. had talked to police, the lawyer told the prosecutor the statement was given voluntarily.

He also told the prosecution his client could be cross-examined on the statement — but did not then warn E.H., who was taken by surprise when he found himself under questioning in court on certain details of what he had said to police 17 months earlier.

His lawyer, who had no in-depth idea of what was in the statement, was unable to intervene or use his own questioning to place passages of the statement in context. As a result, the trial judge found contradictions in his evidence that undermined his credibility.

“This aspect of the appellant’s cross-examination was critical to the trial judge’s rejection of his evidence,” the Appeal Court said. “The trial judge accepted the Crown’s submission that the appellant’s answers were discrepant with his statement.”

On appeal, E.H. explained in an affidavit that he had no idea that police were going to question him about the alleged sexual assaults and that he was “shocked to be cross-examined” on his statement at trial.

“He felt unprepared and believed that it impacted adversely on his performance as a witness and his ability to explain the alleged inconsistencies that were put to him in cross-examination,” documents show.

In its decision, the Appeal Court noted that E.H. came to Canada as a refugee from Iraq in 1998. Despite the fact that English is not his first language, he spoke to police without being offered an interpreter and, the court noted, it was apparent that he struggled to understand many of the officer’s questions.

The prosecution called for the appeal to be rejected on the grounds that the trial lawyer’s professional shortcoming did not necessarily affect the outcome of the case.

The Appeal Court, however, flatly rejected that notion, finding that E.H. was “significantly” prejudiced.

“Without notice from his counsel, he was cross-examined on a statement he gave without an interpreter 17 months earlier,” the Appeal Court found. “He was totally unprepared for what happened. So was his trial counsel.”

The Appeal Court did not fault Ontario court Judge Elinore Ready for rejecting E.H.’s evidence at trial, finding it was a reasonable response under the circumstances.

Colin Perkel, The Canadian Press

by Canadian Press

Man wins new sex-assault hearing due to trial lawyer’s poor performance

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