{"id":10753,"date":"2018-11-17T08:07:13","date_gmt":"2018-11-17T13:07:13","guid":{"rendered":"https:\/\/www.doyonavocats.ca\/?p=10753"},"modified":"2019-07-25T07:03:21","modified_gmt":"2019-07-25T11:03:21","slug":"limportance-detre-represente-par-un-avocat-specialise-en-droit-criminel","status":"publish","type":"post","link":"https:\/\/www.doyonavocats.ca\/en\/limportance-detre-represente-par-un-avocat-specialise-en-droit-criminel\/","title":{"rendered":"L’importance d’\u00eatre repr\u00e9sent\u00e9 par un avocat sp\u00e9cialis\u00e9 en droit criminel : Benrouayene c. R., 2018 QCCA 1891"},"content":{"rendered":"

Benrouayene c. R., 2018 QCCA 1891<\/a><\/p>\n

Dans cette affaire, la Cour d’appel du Qu\u00e9bec ordonne un nouveau proc\u00e8s parce que l’avocate de l’accus\u00e9 qui n’avait aucune exp\u00e9rience en droit criminel a commis plusieurs erreurs qui selon la Cour, ont priv\u00e9 l’accus\u00e9 d’une d\u00e9fense pleine et enti\u00e8re. D’o\u00f9 l’importance de bien choisir son avocat et de s’assurer que celui-ci a l’exp\u00e9rience requise en droit criminel.<\/p>\n

<\/p>\n

[18]\u00a0\u00a0 \u00a0\u00a0\u00a0Trial counsel\u2019s inexperience in criminal law is not a ground on which to claim incompetence or ineffective assistance.[8<\/a>\u00a0 Her failure to cross-examine rigorously and her failure to call defence evidence, notably her failure to call the appellant to testify, might best be described as tactical misjudgment.\u00a0 By themselves these decisions also cannot be characterised as incompetence.\u00a0 Misjudgments of this kind are not uncommon.\u00a0 In this instance, however, they must be considered with other factors:<\/p>\n

trial counsel did not meet with the appellant until the day of the trial, and even then only briefly;<\/p>\n

trial counsel suspected that the appellant\u2019s explanation of his presence in the dwelling might have been coached in order to defeat the presumption of intention;<\/p>\n

trial counsel did not consult with him at the conclusion of the prosecution evidence and did not receive at that time specific instructions that the appellant would not testify;<\/p>\n

trial counsel did not call the appellant to testify when it was clearly the only reasonable option in defence.<\/p>\n

[19]\u00a0\u00a0 \u00a0\u00a0\u00a0The cumulative effect of these various factors, beginning most notably with the first, is that the appellant was deprived of the opportunity to make full answer and defence with the effective assistance of counsel and for this reason alone it cannot be said that the appellant had a fair trial.\u00a0 In these circumstances the apparent strength of the prosecution evidence does not off-set this conclusion.\u00a0 In this respect it is helpful to recall the observation of the Supreme Court in\u00a0G.D.B.<\/em>:<\/p>\n

34\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice.\u00a0 While it is not the case that defence lawyers must always obtain express approval for each and every decision made by them in relation to the conduct of the defence, there are decisions such as whether or not to plead guilty,\u00a0or whether or not to testify<\/em>\u00a0that defence counsel are ethically bound to discuss with the client and regarding which they must obtain instructions.\u00a0 The failure to do so may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice.[9]<\/a><\/p>\n

[20]\u00a0\u00a0 \u00a0\u00a0\u00a0As acknowledged in the hearing before this court, there is no basis on which to affirm that the result at trial would have been different if the appellant had been more effectively represented.\u00a0 In particular, it is mere speculation whether testimony by the appellant could have raised a reasonable doubt whether he intended to commit an indictable offence in the dwelling.\u00a0 But this is not decisive.\u00a0 This is not a case of misjudgment in the course of effective representation; nor is it a case of regret over a failed strategy in the conduct of a trial.\u00a0 The appellant was not only represented ineffectively; trial counsel did not take charge of the file until she first met the appellant on the day of the trial and even then she met with him only for a few minutes.\u00a0 This is incompatible with any concept of effective representation.\u00a0 For all practical purposes he was unrepresented and therefore did not have the benefit of full answer and defence in a fair trial.[10]<\/a>\u00a0 As with the presumption of innocence, this protection is fundamental for any person who is in jeopardy of conviction and sentence in a criminal prosecution.\u00a0 As Proulx J.A. said in\u00a0Delisle<\/em>, the function of this court is to ensure that the appellant had a fair trial.[11]<\/a>\u00a0 If the result of ineffective assistance by trial counsel is an unfair trial of an accused person, this is sufficient to allow the appeal.<\/p>\n

[21]\u00a0\u00a0 \u00a0\u00a0\u00a0There is no suggestion that counsel for the appellant is an incompetent lawyer but it is clear, on a balance of probabilities, that her acts and omissions in this case deprived the appellant of the opportunity to make full answer and defence.\u00a0 There is also no suggestion that the prosecution evidence in this case could not prove the offence charged to the necessary standard of proof.\u00a0 Where an accused person is deprived of the right to make full answer and defence with the effective assistance of counsel, the fairness of the trial is compromised and the only remedy is to restore that right and the opportunity to answer the charge in a new trial.<\/p>\n","protected":false},"excerpt":{"rendered":"

Benrouayene c. R., 2018 QCCA 1891 Dans cette affaire, la Cour d’appel du Qu\u00e9bec ordonne un nouveau proc\u00e8s parce que l’avocate de l’accus\u00e9 qui n’avait aucune exp\u00e9rience en droit criminel a commis plusieurs erreurs qui selon la Cour, ont priv\u00e9 l’accus\u00e9 d’une d\u00e9fense pleine et enti\u00e8re. D’o\u00f9 l’importance de bien choisir son avocat et de […]<\/p>\n","protected":false},"author":11,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[2],"tags":[],"yst_prominent_words":[],"acf":[],"_links":{"self":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/10753"}],"collection":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/users\/11"}],"replies":[{"embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/comments?post=10753"}],"version-history":[{"count":0,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/posts\/10753\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/media?parent=10753"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/categories?post=10753"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/tags?post=10753"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/www.doyonavocats.ca\/en\/wp-json\/wp\/v2\/yst_prominent_words?post=10753"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}