Appeal court orders new trial due to counsel's ineffective representation

An appeal court judge ordered a new trial in a road rage conviction Thursday after finding the accused was served ineffectively by his legal counsel, who did not allow him to testify in his own defence.

Linofiel Eroma was charged with possession of weapon for a dangerous purpose and aggravated assault after a road rage incident in Toronto, according to the ruling. He was convicted in April 2010, and sentenced to a 90 days in jail to be served intermittently with a three-year probation.

Eroma appealed his conviction, claiming despite his wish to do so, his lawyer Paul Slocombe did not allow him to testify at trial. His testimony would have challenged the complainant’s credibility and the account of eyewitnesses, said Eroma.

“In the absence of some explanation or response from the appellant’s trial counsel, which has not been forthcoming through no fault of the appellant, the appellant’s claim that he instructed his counsel throughout that he wished to testify and that he was effectively prevented from doing so by his counsel stands uncontradicted,” the appeal court ruled in R. v. Eroma, adding “the presumption of trial counsel’s competency is of greatly diminished force.”

Slocombe, has since been disbarred by the Law Society of Upper Canada as a result of other clients complaining about his conduct, part of which was his failure to follow their instructions.

“There is no doubt that the appellant’s decision whether to testify in his own defence was his alone to make,” said Justice Janet Simmons, writing for a panel including justices Eleanore Cronk and Eileen Gillese.

“Based on this record, we are satisfied that the appellant has established on the balance of probabilities that he wished to testify at his trial and that his instructions to counsel in this regard were ignored or overridden by the appellant’s trial counsel.

“There is every possibility that the appellant’s trial representation occasioned a miscarriage of justice,” added the court, which ordered a new trial.

The accused, who needed a Tagalog interpreter throughout his trial, also said he didn’t understand what was going on at times, especially when his lawyer and the trial judge spoke simultaneously.

The appeal court urged the Crown to proceed with a new trial “having regard to the unique and most unfortunate circumstances of this case.”

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