Alberta Court of Appeal Orders Retrial in Sexual Assault Case Due to Defence Counsel's Ine

Ruling says trial counsel didn’t submit argument on key substantive issues In a sexual assault case, the Alberta Court of Appeal confirmed that there had been an unfair trial and a miscarriage of justice due to defence counsel’s ineffective assistance through failing to present the closing argument on key trial issues. In R v TJG, 2026 ABCA 252, the appellant and the complainant were both young persons. The complainant alleged that the appellant sexually assaulted her in his vehicle after she agreed to meet him for ice cream. The appellant testified on his own behalf, while the Crown called two witnesses: the complainant and a doctor who had examined her after the incident. The appellant and the complainant provided different accounts about what sexual activity had occurred and whether it had been consensual. The court and counsel discussed whether they should proceed through written argument for the issue on the permissible scope of the doctor’s expert evidence and the “actual elements of the case—like, full argument on conviction versus acquittal.” They agreed that counsel would present the closing argument only in writing. Defence counsel apologized to the court after missing the original deadline for filing the written argument. Therefore, the court set new deadlines. Defence counsel’s written argument addressed only the expert evidence issue, not the trial’s factual issues on credibility and reliability or the reasons for any reasonable doubt. On the other hand, the Crown’s written argument tackled all trial issues. During the Fall 2023 appearances for scheduling a decision date, defence counsel twice left the appellant unrepresented by failing to attend personally or to send an agent. On those occasions, the appellant also did not attend, with his non-attendances excused. On Dec. 8, 2023, the trial judge convicted the appellant under s. 271 of the Criminal Code, 1985. Upon accepting the complainant’s evidence and rejecting the appellant’s evidence on consent, the judge held that the Crown had proven all essential elements of sexual assault beyond a reasonable doubt. In his conviction appeal, the appellant raised issues of trial fairness and the ineffective assistance of trial counsel. Upon finding ineffective assistance of defence counsel, the Alberta Court of Appeal allowed the appeal and ordered a new trial under ss. 686(1)(a)(iii) and 686(2)(b) of the Criminal Code. The appeal court granted the appellant judicial interim release and required him to appear for the new trial scheduling. Pursuant to R v Breitkreutz, 2025 ABCA 165, the appellant should show the following to establish ineffective assistance of trial counsel: The Alberta Court of Appeal addressed the components of the tripartite test. First, the appeal court recognized that the fresh evidence established the undisputed material facts. Second, the Alberta Court of Appeal ruled that the appellant met the high threshold for proving ineffective assistance. The appeal court noted that defence counsel: “This was not a strategy or a tactic,” the appeal court stated. “This was a failure of trial counsel to make argument on issues that he believed to be live and on which he intended to make argument, leaving, in his own words, a ‘critical gap’.” Third, the Alberta Court of Appeal found an unfair trial , a miscarriage of justice, and actual procedural unfairness to the appellant due to defence counsel’s omission. The appeal court added that the following circumstances worsened the unfairness and the risk of prejudice to the appellant: Here are some other criminal law decisions from the Court of Appeal of Alberta. The Alberta Court of Appeal issued a decision last Mar. 13 to set aside the robbery and weapons-related convictions of a man who died while in custody upon determining that the trial court erred in finding no evidence of potential scenarios in which h