A North Vancouver man imprisoned for beating and sexually assaulting his ex-girlfriend has had his convictions tossed out and been granted a new trial.
The B.C. Court of Appeal found the man did not receive a fair trial because his lawyer “fell below the standard of reasonable professional judgment.”
In the original trial, the man’s ex-girlfriend – whose identity is shielded by a publication ban – testified that over a series of incidents in the spring of 2013, he slapped her, pushed her and pulled her hair, forced her into sex, and hit and kicked her repeatedly, the Aug. 2 ruling notes.
The two met in North Vancouver and began dating in late 2012. Both immigrated to Canada from Iran as young adults.
The North Vancouver man denied the accusations but the trial judge sided with his accuser and he was sentenced to 23 months’ imprisonment, followed by three years of probation.
Before he was sentenced, however, the man hired a new lawyer who applied to have the trial reopened on the grounds that his original trial lawyer, Hubert Gawley, failed to cross-examine the ex-girlfriend on a series of text messages she and the accused exchanged around the time of the alleged assaults.
The man’s appeal lawyer argued Gawley, in fact, provided the text messages to the Crown prosecutor without telling his client or without having them officially translated from Farsi, the ruling notes. And Gawley told the Crown prosecutor in an “off-the-record” conversation that he thought the text messages had been manipulated, the ruling adds.
“… There is an appearance of unfairness when one’s lawyer, who is charged with protecting his or her client’s interests, appears to throw the client under the bus. Does this conduct ‘shake public confidence in the administration of justice?’ In my view, it does. It is a significant part of the cumulative effect of the conduct that leads to a miscarriage of justice in this case,” said Justice Elizabeth Bennett, writing the unanimous decision of the three-judge panel hearing the appeal.
Gawley also failed to ensure his client understood a plea deal the Crown was offering him and how it would impact his immigration application, the man’s appeal lawyer argued.
“… Even if the outcome in this case was reliable, which I reach no conclusion on, the process through which the verdict was reached was unfair,” the judge concluded.
