Article snapshot

Focus

Criminal Defence, Competency

Summary

R. v. RE, 2025 ONSC 2795 is a rare mistrial decision in which the trial judge found that incompetent defence representation had caused the adversarial process to break down and made a just verdict impossible. The case is a practical warning that trial competence means disciplined theory, purposeful cross-examination, procedural control, and submissions anchored to the record.

Primary issue

competent representation, mistrial, ineffective assistance observed during trial, trial fairness, defence theory, cross-examination, evidentiary foundation, procedural control

Jurisdiction

Ontario, Canada

Court / tribunal

Ontario Superior Court of Justice

Case / matter

R. v. RE

Citation / file no.

2025 ONSC 2795

Statute / rule

Criminal Code, ss. 276 and 278

Who this helps

criminal defence lawyers, trial counsel, appellate counsel, litigators, accused persons

Key takeaway

Competence at trial is not mere effort or confidence; it is control of theory, record, procedure, and submissions, and when that control collapses badly enough, a mistrial may be the only just result.

Discuss Your Case

Competence Is Trial Control: Lessons from R. v. RE

R. v. RE, 2025 ONSC 2795 is a rare and sobering decision. Justice Mirza declared a mistrial in a judge-alone sexual assault trial after concluding that the accused had not received competent representation, that the adversarial process had broken down, and that a verdict on the existing record would amount to a miscarriage of justice. The court emphasized that competent counsel is essential to a fair trial, and that, in rare cases, ineffective representation can make a just verdict impossible. (See paras. 1–7, 184–190, 263–267.)

This was not a post-conviction ineffective-assistance application brought by the accused. The trial judge independently observed the problem during the proceedings and concluded that counsel’s performance had fallen below the required standard despite opportunities to correct course. That is part of what makes the case so important for criminal practitioners. (See paras. 213–215.)

The decision should not be reduced to “bad cross-examination.” The court’s concern was broader and more serious. Justice Mirza found that defence counsel had no coherent defence theory, asked almost entirely open-ended questions that repeated examination-in-chief, failed to put the defence position fairly to the Crown witnesses, advanced unsupported theories in closing, and mishandled important procedural issues when those failures became obvious. (See paras. 221–223, 231–245, 248–255.)

The first lesson is that cross-examination needs architecture. The court expressly acknowledged that open-ended questions can sometimes be appropriate. The problem here was not simply the form of the questions. It was the absence of any coherent objective behind them. In a credibility-driven case, counsel needs a defensible theory before standing up: what proposition must be obtained, what proposition must be put, and what evidentiary foundation will support the eventual submission. Without that structure, cross-examination stops testing the Crown’s case and starts repeating it. (See paras. 17, 221–223, 251–252.)

The second lesson is that closing cannot outrun the record. Justice Mirza identified a series of defence arguments that had not been grounded in the evidence: another man may have been in the bed, schizophrenia may have explained non-sexual touching, the mother may have led the complainant, the disclosure was “past memory recovered,” and the complainant may have mistaken a knee for an erection. The court treated those positions not as forceful advocacy, but as speculation without foundation. That is a hard but necessary reminder: a possibility is not a theory, and a theory is not evidence. (See paras. 240–250.)

The third lesson is that competence is also procedural judgment. The court found that counsel tried to raise ss. 276 and 278 issues without notice or materials after previously indicating no such motion would be brought. Counsel then failed to properly support re-opening despite clear direction from the court. By the time the judge flagged the competence problem directly, the answer was not to keep drifting. It was to reset, get help, or get off the record. (See paras. 159–167, 231–234, 263–265.)

A further point is easy to miss. The court also criticized the defence evidence itself. Defence witnesses were called who did not materially advance the defence position, and prejudicial bad-character evidence about the accused was elicited without any clear theory for why it helped. A defence witness should never be called merely because the witness is available, sympathetic, or generally supportive. Every witness must prove something that matters. (See paras. 235–237.)

What I take from R. v. RE is that competency is not an abstract virtue. It is not confidence. It is not persistence. It is disciplined theory, purposeful cross-examination, clean evidentiary foundations, procedural control, and submissions that stay inside the record. That is what protects both the client and the integrity of the verdict. (See paras. 188–195, 261–265.)

That is also how I approach serious criminal litigation. Complex cases are rarely won by a single flourish. They are won by controlling the theory, the record, and the procedure from beginning to end. That matters most in credibility-driven trials, difficult evidentiary hearings, substantial Charter motions, and appeals—where small errors compound quickly, and where disciplined advocacy is not cosmetic, but outcome-determinative.

See also: R. v. BN , 2025 ABKB 535.

Questions this post answers

What does R. v. RE teach about competent criminal defence advocacy?

It teaches that competence requires more than knowledge of the law. Counsel must have a coherent defence theory, conduct purposeful cross-examination, call only useful evidence, comply with procedural requirements, and make submissions that stay grounded in the evidentiary record.

Was R. v. RE a typical ineffective-assistance case brought after conviction?

No. What makes the case unusual is that the trial judge identified the competence problem during the trial itself and concluded that the breakdown in representation and process made a fair verdict impossible on the existing record.

Why is this case important for credibility-driven trials?

Because it shows that credibility cases demand structure. Cross-examination cannot simply wander through the evidence. Counsel must know what propositions need to be obtained, what must be put to witnesses, and how the record will support closing submissions.

What practical lesson does this case offer when counsel realizes the trial is drifting off course?

The lesson is that drift is dangerous. When foundational problems become obvious, counsel must reset, seek assistance, properly bring the required motion, or get off the record rather than continue with an incoherent or unsupported defence.