The importance of written instructions

R v Zock, 2025 ONCA 483: Appeal allowed and conviction overturned for ineffective assistance of counsel. Trial counsel failed to seek informed instructions on the mode of trial, instead simply electing judge alone on the client's behalf.

This is another important reminder about recording client instructions on the three fundamental decisions in a criminal trial that belong to an accused: (1) whether to plead guilty, (2) whether to testify, and (3) whether to elect judge and jury or judge alone. Counsel should record the advice given and instructions received on these issues *in every single case*.

Here, trial counsel took no notes and recorded no memorandum about the mode of election. He deposed on appeal that the conversation took place in the hallway before a routine administrative appearance and before he had received Crown disclosure. He had no notes of that discussion. His docket for that date read only: "adjournment".

These decisions belong to the client, not to us. They are among the only decisions in a criminal case that belong exclusively to the accused. Our duty is to make sure our clients understand and make a decision that is truly theirs. And for god's sake, when that happens, write it down!