Bernadette Saad

The appellant was convicted of aggravated assault on the basis that he struck the complainant with a beer glass, causing multiple lacerations to the face and neck.

The appellant claimed self-defence, asserting that the complainant attacked him first.

The trial judge applied the amended self-defence provisions of the Criminal Code retrospectively and instructed the jury accordingly.

The Crown argued that if the appellant struck first, self-defence was not available.

The trial judge failed to correct this legal misstatement.

The Court of Appeal found that the Crown's assertion was legally incorrect, as self-defence can apply even if the accused struck the first blow, provided the accused reasonably believed force or a threat of force was being used against them.

The trial judge's failure to correct this error rendered the verdict unsafe.

The applicant, Mr. Mallia, sought a mistrial or, alternatively, permission to reopen his case following his conviction for attempted murder.

He alleged ineffective assistance of trial counsel, claiming counsel inadequately prepared him, failed to pursue a Not Criminally Responsible (NCR) defence, and misled him into believing the attempted murder charge was "off the table," which influenced his decision not to testify.

The Crown argued counsel's actions were strategic.

The court found no incompetence regarding trial preparation or the NCR defence, but noted counsel's failure to obtain written instructions for Mr. Mallia's decision not to testify, especially given counsel's misleading statement about the attempted murder charge.

The court denied the application for a mistrial, stating it was not one of the "clearest of cases," but granted the application to reopen the case, finding that Mr. Mallia's failure to testify was not a tactical decision and his anticipated evidence could reasonably affect the outcome.