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Background:

F.A. worked in a medical facility with a much younger female co-worker. There was flirting between them. They went out together one evening, meeting up in a park and later driving around in F.A.’s car. He said he had a surprise for her at the office so they parked close by. Instead of going inside, they stayed in the car and the co-worker sat in F.A.’s lap. She said there was heavy petting and F.A. exposed himself. He dropped her off at home soon thereafter. When her parents found out, a charge of sexual assault was brought against F.A. He said that whatever happened was consensual. The stakes were high. F.A.’s career path could be brought to a halt with a conviction. He hired a well-known criminal law firm to defend him and left the matter in their hands, trusting they would deal with it conscientiously. That turned out not to be the case. F.A. was convicted at trial and considered that the law firm had mishandled his defence. I got involved at that point.

Approach:

Making an allegation of ineffective assistance of counsel should not be undertaken lightly. It was necessary to carefully review the law firm’s file and their dealings with F.A. to determine whether there was any substance to the complaint. As it turned out, the lawyer had failed to provide F.A. with the Crown disclosure, hadn’t reviewed the evidence with him in any detail before trial and told him he should not testify. It was my view that the conviction was unsafe as a result of the conduct of the defence. There were other grounds of appeal related to the reasons of the trial judge. A detailed factum was prepared for the appeal.

Result:

After a lengthy hearing, the Superior Court judge who heard the appeal agreed that F.A. had received ineffective assistance of counsel, and the conviction should be set aside on that basis. Since F.A. had already served part of the sentence, the charges were permanently stayed.

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