Defence counsel must ask their clients before Agreeing to a virtual trial

2026 at the Court of Appeal is off to a strong start with a successful appeal based on ineffective assistance of counsel. R v MZ, 2026 ONCA 4: appeal allowed and conviction overturned because trial counsel (a) failed to advise his client about the risks of testifying and (b) decided that the client would appear virtually for his trial without first seeking informed instructions. Both bases for the ineffective finding are significant for defence lawyers.

First, the MZ court reminds us that testifying in a criminal trial is not all upside. For the client to make an informed decision they must understand both the advantages *and the potential disadvantages* of testifying. Here, trial counsel neither explained that "appearing confused or inconsistent may cause him to fare poorly" nor that "no adverse inference could be drawn by the trial judge should he decide not to testify". The failure to provide this advice to a client who wished to testify was enough to undermine trial fairness and cause a miscarriage of justice: see para 51.

Many defence lawyers only get signed instructions when the client *does not* testify. This case is a reminder that signed instructions, or at least a memorandum to file, should be completed even in cases where the accused chooses to take the stand and tell their story. At a minimum, these instructions should include the two points outlined above.

Second, this decision adds to the list of decisions in a criminal trial that belong to the client. In addition to the choice to testify, plead guilty or not guilty, and elect one's mode of trial, the client has the right to an informed choice about whether to appear virtually or in person. Here, where the Crown, complainant, and judge all appeared personally, defence counsel improperly "usurped" that right from the client by deciding that they would both appear by Zoom. Justice Thorburn held that "[w]hile trial counsel may have acted in what he believed to be the appellant's best interest, the appellant had a right to make an informed choice about whether to appear at trial in person". As far as I'm aware, this is a novel proposition of law.

These cases are very hard to win -- Sherif Foda and Emily Dixon did excellent work as appellate counsel.