The trial conduct of the defendant’s lawyer showed 'an abdication of responsibility,' the court said
A business owner who was convicted of fraud received ineffective assistance from his defense lawyer, and is thus entitled to a new trial, according to a new ruling by the Ontario Court of Appeal.
Issued Monday, the decision said that while the trial judge who presided over the lower court case appears to have conducted a “flawless” trial, the lawyer for the defendant provided substandard representation that ultimately undermined the trial’s fairness.
That lawyer’s conduct represented “an abdication of responsibility and a betrayal of a crucial trust,” Justice David Paciocco wrote. Justices Peter Lauwers and Gary Trotter concurred.
Jeffery Couse, a partner at Lockyer Zaduk Zeeh who represented the defendant on his appeal, told Law Times on Tuesday that ineffective assistance of counsel claims seldom succeed. Couse did not represent the defendant at trial.
“Usually when they do succeed, it’s because there was something about trial counsel’s representation that undermined the reliability of the verdict,” Couse says. “But there's a kind of residual category reserved for cases where it doesn't necessarily affect the reliability of the verdict, but it undermines the appearance of fairness.
“For an appeal to be allowed on those grounds, on just the appearance of fairness, is exceedingly rare,” the lawyer adds.
The defendant, George Nnane, was the chief executive officer of Golden Capital Management Inc., a tax preparation business in Toronto. According to Monday’s decision, Nnane was charged with fraud for filing income tax returns for clients that included claims for fake business and rental expenses, as well as non-existent charitable donations. Because his company charged clients a substantial percentage of their income tax returns, Nnane stood to benefit from the fraudulent filings.
Prosecutors also accused Golden of filing GST/HST returns falsely claiming losses.
In 2019, a jury found Nnane guilty on two counts of fraud under the Criminal Code of Canada. Nnane appealed the convictions on the grounds that he received ineffective assistance from his lawyer. He also appealed one of his sentences, comprising three years in prison.
To assess his appeal, the Court of Appeal required Nnane to satisfy three criteria: establish the facts that his claim is based upon; demonstrate that his lawyer provided representation that “fell below a standard of reasonable professional judgment”; and show that this subpar representation resulted in a miscarriage of justice. The appeals court found Nnane met all three prongs of the test.
Nnane’s trial lawyer likely misrepresented how prepared he was for trial, the court said. The lawyer wrote dismissive responses to Nnane’s emails detailing events relevant to the case; asked the trial court for an early adjournment after a Golden employee provided testimony, even though he should not have been surprised by her statements; and addressed the jury with general statements that did not cite the specifics of the case.
Nnane’s lawyer also failed to effectively cross-examine the Golden employee, whom Nnane claimed was actually responsible for the company’s fraudulent tax filings, the court said. This left the employee’s “damning testimony” — which directly contradicted much of what Nnane claimed — “virtually unchallenged,” the court said.
The lawyer offered at trial “a few isolated, tepid, and largely generic suggestions that Mr. Nnane’s testimony should be believed,” Paciocco continued, but the lawyer went on to undermine them by distancing himself from his client’s testimony, among other decisions.
While the Crown’s case against Nnane was strong, and it is not likely the jury would have rendered a different verdict even if Nnane had been defended effectively, the court said, Nnane nonetheless did not receive a fair trial.
It is “obvious, in my view, that the representation provided by trial counsel fell below the standard of reasonable professional judgment,” Paciocco wrote. “Whatever else it entails, reasonable professional judgment when acting in the defence of criminal charges requires a supportive if not zealous defence, not a half-hearted or dismissive one.”
Xenia Proestos, one of the prosecutors for the Crown, says the appeals court’s decision “reiterated the established test for determining claims of ineffective assistance of counsel and applied that test to the facts in this case.”
The Crown’s decision to prosecute Nnane was based on “whether there is a reasonable prospect of conviction and that the prosecution is in the public interest,” Proestos adds.
