Convicted sex offender whose lawyer was berated by Court of Appeal granted new trial

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Kevin Martin

"The conviction is quashed as the appellant received ineffective legal representation at trial, which occasioned a miscarriage of justice"

The convicted Calgary sex offender whose lawyer was admonished by the province’s top court for his poorly written brief was the victim of a miscarriage of justice at trial, the Alberta Court of Appeal ruled Wednesday.

In accepting the prosecution’s concession that a new trial was warranted, a three-member panel of the court handed down a brief written ruling finding the appeal should be granted.

“Leave to appeal is hereby granted to admit the new evidence alleging ineffective representation at trial, including the evidence tendered on appeal and filed with this court,” the judges said.

“The conviction is quashed as the appellant received ineffective legal representation at trial, which occasioned a miscarriage of justice,” they said, in granting new defence lawyer Yoav Niv’s application for a new trial.

The man’s trial counsel, who also initially acted for him on appeal, Efrayim Moldofsky, was berated by the appeal judges in January for the quality of his written submissions on behalf of his client.

At the Jan. 11 hearing Justices Peter Martin, Patricia Rowbotham and Anne Kirker declined Moldofsky’s application to proceed to oral submissions on behalf of his client before he drafted a suitable factum.

“Mr. Moldofsky filed a factum which we have found to be unacceptable,” Martin said, in declining the lawyer’s request.

“It doesn’t meet the standards of professionalism that we expect from counsel, professionalism, or suitability and we will not act on this factum.”

The accused, who was convicted on charges of assaulting and sexually assaulting his estranged wife after he had moved back in with her during COVID-19 quarantine in May 2020, initially told court he wished Moldofsky remained his lawyer.

But Niv later took over, arguing the man was the victim of a miscarriage of justice.

Outside court, Niv said his client is relieved he’ll get a new trial and the lawyer will be seeking his release on bail pending that hearing.

Original Article: https://calgaryherald.com/news/crime/convicted-sex-offender-whose-lawyer-was-berated-by-court-of-appeal-granted-new-trial