APPEALS - Grounds - Miscarriage of justice

Law360 Canada (June 15, 2022, 5:37 AM EDT) -- Appeal by Bauer from his conviction of three counts of sexual assault on the ground of ineffective assistance of counsel. Bauer was sentenced to 21 months of jail for the alleged sexual assault of the complainant. The only witness called at trial was the complainant. She testified that on three occasions, Bauer woke her up during the night and forced vaginal intercourse without her consent. The evidence of the complainant was found to be credible and reliable and the Court convicted Bauer of all three offences. Bauer’s actions were intentional. His professed lack of memory expressed to the complainant on the morning after the first two incidents did not equate with lack of intention and did not constitute evidence of his state of mind. There was no evidence to support automatism. Bauer filed a Notice of Appeal and swore an affidavit, indicating that he expected to testify at his trial. He was scared about testifying after being told by his trial counsel, Armstrong, that he did not think he should testify. The appellant swore that he never told Armstrong that he suffered from sleepwalking or that he might have had sex with the complainant while he was asleep. The appellant took the position that he received ineffective assistance of counsel because trial counsel failed to cross-examine on crucial points in the evidence, proffered defences which were not in accordance with his instructions and did not give him adequate advice about whether to testify in his own defence. His position was that his defence was that the alleged sexual contact did not happen, not voluntarily and not in a sleep state. The respondent took the position that Armstrong took the necessary time to prepare Bauer for trial and that while he communicated his opinion that he felt Bauer should not testify at trial, that decision was made by Bauer....
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