Background
Matthew Mason was convicted of criminal harassment and harassing communications under ss. 264 and 372(3) of the Criminal Code. The charges arose from five emails sent to his former domestic partner, J.S., and others. The emails contained vulgar and threatening language. The trial judge found that Mason sent the emails, harassed J.S., caused her reasonably to fear for her safety, and possessed the required intent.
Mason appealed on the sole ground that ineffective assistance by trial counsel caused a miscarriage of justice. He alleged, among other things, that counsel made admissions contrary to his instructions and closed the defence case without allowing him to decide whether to testify. The Court of Appeal admitted fresh evidence concerning counsel’s preparation and conduct of the trial and permitted counsel to be cross-examined because material conflicts in the evidence could not be resolved from the affidavits alone.
The Court’s Holding
The Court of Appeal allowed the appeal. It found on a balance of probabilities that Mason had expressed both a desire to testify and ambivalence about counsel’s recommendation that he remain silent, but had not clearly or finally instructed counsel before trial that he would not testify. At the close of the Crown’s case, counsel did not consult Mason and instead personally made the final decision that no defence evidence would be called.
The Court also found that counsel admitted, without Mason’s instructions and contrary to his position, that J.S. had a pre-existing reasonable fear of him and that any fear caused by the emails was reasonable. These admissions constrained Mason’s ability to testify consistently with his position. There was a reasonable possibility that Mason would have testified if properly consulted and a reasonable probability that his proposed evidence concerning his intent, the alleged assault, and his knowledge of the protection order could have changed the verdict. Counsel’s conduct was incompetent and caused a miscarriage of justice.
The Court admitted the fresh evidence, set aside both the conviction and the conditional stay, and ordered a new trial on both counts of the indictment.
Key Takeaways
- The decision whether to testify belongs personally to the accused; counsel must provide competent advice, obtain instructions, and act on them.
- A reasonable recommendation not to testify does not authorize counsel to make the final decision without consulting the accused at the critical point after the Crown closes its case.
- Tactical authority does not permit defence counsel to make material admissions that contradict the accused’s instructions and compromise the exercise of a fundamental right.
Why It Matters
The decision reinforces that deference to defence strategy has firm limits. Even sound strategic advice cannot displace an accused’s control over fundamental decisions or justify admissions directly contrary to the accused’s instructions.
It also illustrates the appellate importance of keeping reliable records and obtaining written instructions on fundamental choices. Here, counsel’s lack of notes, inaccurate recollections, and failure to document Mason’s decision contributed to the Court’s conclusion that the presumption of competent representation had been displaced.