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| John L. Hill |
These decisions belonged to him, yet the record showed he was never given a genuine chance to make them. The court concluded that the result was not just poor legal representation but a trial whose fairness was fundamentally compromised. In Canada’s justice system, when an accused is denied the right to make these fundamental choices, the verdict itself cannot stand.
This was the court’s pronouncement in R. v. M.Z., 2026 ONCA 4. M.Z. was convicted after a judge-alone trial of two counts of sexual assault and one count of forcible confinement. He served a 28-month sentence before being released on parole. He appealed his convictions on the grounds of ineffective assistance of counsel and sought to introduce new evidence.
The Court of Appeal accepted new evidence, including affidavits from M.Z. and trial counsel, because such evidence is often allowed when evaluating claims of ineffective assistance (R. v. Joanisse, [1995] O.J. No. 2883, R. v. Widdifield, (1995) 25. O.R. (3d) 161 (C.A.)). The legal test requires an appellant to demonstrate: (1) the factual basis for the alleged incompetence, (2) that counsel’s performance was below the standard of reasonable professional judgment, and (3) that the deficiency resulted in a miscarriage of justice, either by compromising the reliability of the verdict or the fairness of the trial.
The court highlighted several concerning aspects of trial counsel’s conduct. Counsel lacked a written retainer agreement, accepted cash payments without issuing receipts and maintained poor records, resulting in no written documentation of advice or instructions. This was especially troubling because M.Z. was unfamiliar with Canadian law and sometimes confused during discussions, which heightened the need for clear explanations and written instructions.
M.Z. alleged three major failures by counsel. To establish ineffective representation, the Ontario Court of Appeal has held that three things must be proven (R. v. Zock, 2025 ONCA 483, R. v. Fiorilli, 2021 ONCA 461, R. v. K.K.M., 2020 ONCA 736.
First, he argued that counsel failed to properly inform him of his right to a jury trial. He stated he would have opted for a jury if he had understood the option. Trial counsel maintained that he discussed the matter and that M.Z. preferred a quicker, less costly judge-alone trial. There might have been good reasons for M.Z. to make that choice, but there was no written record showing the discussion of the options. Although the court found the lack of documentation concerning, it ultimately accepted counsel’s evidence that the topic had been discussed and therefore did not find ineffective assistance on this point.
Second, M.Z. argued he was not advised of his right not to testify. Appellate counsel claimed that M.Z. wanted to testify to clear his name. Nevertheless, there was no evidence that M.Z.’s trial counsel explained the benefits and risks of testifying or informed him that no adverse inference would be drawn if he chose not to testify. M.Z. had a limited understanding of the legal system. His trial counsel’s own admission that M.Z. often appeared confused supported this. The court concluded that the appellant had not been given a meaningful, informed choice. This failure met both the factual and performance requirements of the ineffective assistance test and compromised the fairness of the trial.
Third, M.Z. argued that his trial counsel unilaterally decided he would appear at trial via Zoom. The law generally presumes in-person proceedings unless the accused consents to appearing remotely. Evidence showed the trial was originally scheduled to proceed in person, and counsel later agreed to a hybrid format without clearly obtaining his client’s instructions. The court found there was no evidence that M.Z. was informed of the option to appear virtually or of the consequences of doing so, even though the complainant and Crown appeared in person. This again deprived M.Z. of an informed choice and constituted deficient performance.
When considering the cumulative effect of these failures, especially the lack of informed choice regarding testifying and appearing in person, the court concluded that trial fairness was compromised. This results in a miscarriage of justice and erodes confidence in the administration of justice.
Accordingly, the Court of Appeal allowed the appeal and overturned the convictions. It also ordered a new trial before a judge and jury. Since M.Z. had already served his sentence, the sentence appeal was dismissed as moot. The new evidence materials and references to trial counsel were ordered to remain sealed unless the court directs otherwise.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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