Choosing Effective Legal Representation
In the case of R v Sauverwald, 2020 ABCA 388, the Court considered whether or not the trial counsel’s assistance to the client was ineffective. This is an important case that addresses the importance of ensuring that you hire effective counsel to represent you.
Mr. Sauverwald was convicted of sexual assault and strangling with intent to commit a sexual assault. The main issue upon was whether there was an ineffective assistance of the trial counsel. The trial judge dismissed trial counsel’s application for a mistrial on the basis that the errors or shortfalls of counsel did not negatively affect the outcome.
The Court of Appeal, however, disagreed. They ordered a new trial because counsel’s ineffectiveness was so pervasive that the applicable legal test was met. Due to the failings of the lawyer, there was a lack in confidence in the outcome of the case. It is the Court’s duty to examine the trial record/proceedings and determine whether a miscarriage of justice occurred.
In essence, the test for an ineffective assistance in counsel is a reasonable probability that without counsel having made those errors, the outcome of the case would have been different. A reasonable probability is described as being somewhere in between a “mere possibility” and a “likelihood”. This reasonable probability must be enough to undermine confidence in the result of the case.
It was the cumulative effect of multiple errors at trial that supported a finding of a miscarriage of justice as they undermine confidence in the outcome. The defence’s theory at trial was that Mr. Sauverwald was not the person who attacked the complainant; that it was someone else. Questionable admissions were made that defence did not seem to appreciate the consequences of, as well as admitting the evidence from a pre-trial application to the trial itself seemed to be without purpose for the defence. Areas where the complainant’s testimony varied should have been questioned by defence, however, defence admitted they simply overlooked it. Defence further admitted that the accused might be guilty of sexual assault, even in his own theory of the case, if the judge made certain findings. Defence counsel missed calling important evidence that could have explained the complainant’s injuries, missed calling important DNA evidence, did not question a relevant toxicology report or call the expert, and conceded to the complainant’s suggestion she was drugged despite the fact it was inconsistent with defence’s theory. When the accused acted oddly while testifying, counsel conceded that it was poor testimony, instead of inquiring into his mental health and helping the judge understand his performance.
Overall, the Court of Appeal noted that the complainant’s story lacked consistency and continuity but defence did not pursue most of these leads and instead took the complainant as honest and agreed as to the features of her alleged attack. All that needed to be shown was a reasonable probability that if the errors did not occur, potential leads not being followed and evidence not brought forward, the judge could have come to the opposite conclusion.
Commentary
What this means for people facing criminal allegations is that should your lawyer make errors during your trial or matter, a contextual and precise look will be had to determine if an ineffective assistance in counsel and resulting miscarriage of justice occurred. It may be one major mistake that meets the reasonable probability test, or it may be a cumulation of mistakes, as was seen in this case. Also, it might be that the errors, despite being improper, would not result in any effect on the outcome of the trial and in that case, no miscarriage is had.
What can be learned from this is that one should take care in choosing a lawyer, ask questions, and look at reviews. There is no harm in shopping and asking around to find the best fit for you and someone with a good reputation.