WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.—(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.— In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.—(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Alavi, 2026 ONCJ 498

DATE: August 19, 2026

BETWEEN:

HIS MAJESTY THE KING

— AND —

ALI ALAVI

Before Justice T. Lipson

RULING ON DEFENCE APPLICATION FOR MISTRIAL

Application heard: January 7, 9; March 16-18; and April 7, 2026

Ms. M. Birsan................................................................................................. counsel for the Crown

Ms. L. Shemesh............................................................................................... on behalf of Mr. Alavi

Lipson J.:

RULING ON DEFENCE APPLICATION FOR MISTRIAL

Introduction

[1] Following this court’s finding of guilt on one count of sexual assault, Mr. Alavi brought an application for a mistrial. He alleges that he was denied the effective assistance of counsel. The trial focused on issues of consent, the complainant’s level of intoxication, her capacity to consent, and the reliability and credibility of her evidence bearing on those issues.

[2] Mr. Alavi advances three grounds in support of his application. First, he submits that he did not make an informed election as to his mode of trial. Second, he argues that trial counsel, not Ms. Shemesh, failed to call available defence witnesses whose evidence could have assisted the defence. Third, he contends that trial counsel effectively deprived him of his right to decide whether to testify in his own defence.

[3] The application raises questions about both the adequacy of counsel’s representation and about Mr. Alavi’s role in certain decisions made during the proceedings. Some decisions are entrusted to counsel as matters of trial strategy. Others, including the election of mode of trial and the decision whether to testify, belong to the accused. Counsel may provide advice, including strong and candid advice, concerning those matters, but the ultimate choice remains with the accused.

[4] A mistrial is an exceptional remedy. It is granted only where necessary to prevent a miscarriage of justice, and where no lesser remedy can address the resulting unfairness or prejudice. The issue is not whether a different strategy might have been adopted, nor whether counsel’s conduct is open to criticism. Rather, the question is whether the alleged deficiencies undermined the fairness of the trial, the reliability of the verdict, or a fundamental right belonging to the accused such that the extraordinary remedy of a mistrial is required.

[5] As stated in R. v. Burke, 2002 SCC 55, [2002] 2 SCR 857 at para 74, the “common theme” running though the case law on mistrials is the test of whether there is a “real danger” of prejudice to the accused or a danger of a miscarriage of justice. The decision of whether to grant a mistrial is a matter of discretion of the trial judge. In R. v. GC, 2018 ONCA 392 at paras 3-4, the Court of Appeal stated that an ineffective assistance claim brought during the trial should be approached within the framework of a mistrial. No new test is required. A mistrial is a remedy of last resort, that falls within the discretion of the trial judge.

[6] The burden of establishing ineffective assistance of counsel rests with Mr. Alavi. He must prove his claim on a balance of probabilities. The burden does not shift to trial counsel to justify every decision made during the proceedings, nor does the absence of notes or documentation create a presumption of ineffective assistance. The burden remains on Mr. Alavi throughout.

[7] To succeed, Mr. Alavi must establish three things. First, he must prove the factual foundation for the allegations he advances. Second, he must demonstrate that counsel’s conduct fell below the standard of reasonable professional assistance expected of competent counsel. Third, he must establish that the alleged deficiency resulted in prejudice or a miscarriage of justice by undermining the fairness of the proceeding, the reliability of the verdict, or, where applicable, a fundamental right of the accused.

[8] The standard of proof is proof on a balance of probabilities. This means that Mr. Alavi must satisfy the court that his allegations are more likely true than not true. Where the evidence leaves the court unable to prefer one competing account over another, the burden has not been met and the claim must fail. Much of this application turns on competing accounts given by Mr. Alavi and trial counsel. Where I am left with two plausible versions of events and am unable to conclude that Mr. Alavi’s account is the more likely one, the burden of proof requires that the claim be rejected.

[9] In assessing counsel’s conduct, the court must avoid reasoning with the benefit of hindsight. The question is not whether a different strategy might now appear preferable or whether another lawyer may have proceeded differently. The question is whether the conduct complained of fell outside the wide range of reasonable professional assistance when viewed in the circumstances as they existed at the time.

DECISION ON MODE OF TRIAL

Summary of the Evidence

[10] The evidence concerning Mr. Alavi’s election of mode of trial came from Mr. Alavi and his trial counsel. Their accounts differed in significant respects.

[11] Mr. Alavi testified that he did not understand the concept of an election and did not appreciate that he had a right to choose the court in which he would be tried. He stated that he believed the Ontario Court of Justice was the only available forum and that trial counsel never discussed the possibility of proceeding in the Superior Court of Justice, either before a judge alone or before a judge and jury. He testified that no one explained the differences between those options and that he was never asked to make a choice.

[12] Mr. Alavi further testified that his communication with trial counsel was limited throughout the retainer. In his view, the only meaningful meetings occurred shortly before trial. He maintained that mode of trial was not discussed during those meetings. He also testified that he had little understanding of the Crown’s case and that disclosure was not meaningfully reviewed with him before trial.

[13] Trial counsel gave a different account. He testified that, following Mr. Alavi’s return from a trip in October 2023, the two met to discuss the case. Counsel testified that Mr. Alavi expressed a desire to have the matter resolved as quickly as possible because of the ongoing impact of the proceedings on his personal and professional life.

[14] According to trial counsel, it was during that meeting that he discussed the available modes of trial. Counsel testified that he explained the options of proceeding in the Ontario Court of Justice, proceeding before a judge alone in the Superior Court of Justice, and proceeding before a judge and jury. He also discussed the practical implications of each option. Counsel testified that he recommended a judge-alone trial in the Ontario Court of Justice. He explained that recommendation was based on both strategic and practical considerations, including the nature of the issues in the case, the complainant’s anticipated evidence, and Mr. Alavi’s desire for an expeditious resolution. Trial counsel testified that the end of the meeting, Mr. Alavi said, “I’ll do whatever you think is best, because you are the expert”.

[15] Trial counsel testified that he had received disclosure materials, including the Crown screening form, by August 2023. It was his evidence that the information available at that stage was sufficient to permit him to assess the nature of the allegations and provide advice concerning mode of trial.

[16] Trial counsel testified that Mr. Alavi accepted his recommendation and indicated that he would follow counsel’s advice. Counsel acknowledged, however, that he did not obtain written instructions confirming the election and that his file contained limited contemporaneous notes concerning the discussion. His evidence as to those conversations was based primarily on his recollection.

[17] The evidence established that an election was subsequently communicated to the court during the judicial pre-trial process. Trial counsel maintained that the election reflected instructions received from Mr. Alavi following their earlier discussions regarding mode of trial.

Position of the Parties

[18] The defence submits that Mr. Alavi was deprived of the right to make an informed election. It argues that he did not understand that a choice existed and was never adequately advised concerning the available options. The defence relies on Mr. Alavi’s evidence that no meaningful discussion concerning mode of trial took place and emphasizes the absence of written instructions, contemporaneous notes, or confirmatory correspondence relating to such an important decision. According to the defence, the evidence establishes that Mr. Alavi did not knowingly exercise a choice that belonged to him personally.

[19] The defence further submits that any advice that may have been provided was given at a stage when trial counsel had not yet received all available disclosure. It argues that counsel could not properly advise Mr. Alavi concerning mode of trial without first obtaining a complete understanding of the Crown’s case.

[20] The Crown submits that Mr. Alavi has failed to establish the factual foundation necessary to support the claim. It relies on trial counsel’s evidence that the available options were explained, that a recommendation was made after consideration of the circumstances of the case, and that Mr. Alavi accepted that recommendation. The Crown argues that counsel was entitled to provide strong advice concerning mode of trial and that the evidence does not establish that counsel usurped a decision properly belonging to the accused.

[21] The Crown further submits that even if some deficiency were established, there is no evidentiary basis to conclude that Mr. Alavi would have chosen a different mode of trial had additional or different advice been provided.

Applicable Legal Principles

[22] The choice of mode of trial is a fundamental decision that belongs to the accused. Although defence counsel is expected to provide advice and recommendations concerning the available options, the ultimate decision must remain with the accused.

[23] The law distinguishes between strategic decisions, which generally fall within counsel’s authority, and fundamental decisions, which belong to the accused personally. Counsel may strongly recommend one course of action over another. Indeed, competent representation will often require such advice. What counsel cannot do is substitute their decision for that of the accused.

[24] The issue, therefore, is not whether counsel’s advice influenced the accused’s choice. Legal advice is expected to influence decision-making. The question is whether the accused was deprived of a meaningful opportunity to make the decision for himself.

[25] An accused is entitled to rely heavily on counsel’s advice when deciding how to proceed. The fact that an accused follows counsel’s recommendation does not mean the decision was not his own. The critical question is whether the accused retained the ability to choose.

[26] As with all allegations of ineffective assistance of counsel, the burden rests on the applicant. Mr. Alavi must establish, on a balance of probabilities, the factual foundation for his claim, that counsel’s performance was deficient, and that the alleged deficiency resulted in prejudice or a miscarriage of justice. If the evidence leaves the court unable to prefer one version of events over another, the burden has not been met.

[27] The court must also guard against hindsight. The issue is not whether another lawyer might have proceeded differently. The issue is whether counsel’s conduct fell outside the range of reasonable professional assistance when viewed in the circumstances that existed at the time.

Analysis

[28] The issue is a narrow one. Trial counsel was entitled to recommend that the matter proceed in the Ontario Court of Justice. The question is whether Mr. Alavi has established, on a balance of probabilities, that he was deprived of the opportunity to make that decision for himself.

[29] Mr. Alavi testified that he did not understand he had a choice. He said he believed the Ontario Court of Justice was the only available forum and that no meaningful discussion took place concerning other options. Trial counsel testified that he explained the available modes of trial, discussed their practical implications, recommended proceeding in the Ontario Court of Justice, and obtained Mr. Alavi’s agreement to that course.

[30] There is support in the evidence for both accounts.

[31] The absence of contemporaneous documentation is troubling. The election of mode of trial is an important decision. Written instructions, detailed notes, or confirmatory correspondence would have provided valuable assistance in resolving the dispute now before the court. Trial counsel’s failure to create such a record reflects poor practice and makes the court’s task more difficult.

[32] However, the absence of documentation does not establish that advice was not given. Nor does it relieve Mr. Alavi of his burden of proof. It is one factor to be considered among all the circumstances.

[33] The defence argues that any advice provided was necessarily deficient because trial counsel had not yet received all available disclosure. I do not accept that submission. Mode of trial decisions are often made before disclosure is complete. The question is not whether counsel possessed every available piece of disclosure, but whether counsel had sufficient information to provide meaningful advice. Trial counsel testified that he had received disclosure materials, including the Crown screening form, and that those materials allowed him to understand the nature of the allegations and the issues likely to arise at trial. On the evidence before me, I am not satisfied that the absence of additional disclosure rendered counsel incapable of providing competent advice concerning mode of trial. I am satisfied that counsel had sufficient disclosure to allow Mr. Alavi to make an informed decision about election.

[34] Nor is there any evidence that subsequently received disclosure materially altered the nature of the case. Throughout the proceedings, the central issues remained consent, intoxication, capacity to consent, and the reliability of the evidence bearing on those issues. There is no basis on this record to conclude that later disclosure revealed a fundamentally different Crown theory or information that would likely have affected counsel’s recommendation concerning mode of trial.

[35] There are also features of the evidence that support trial counsel’s account. Counsel provided direct evidence that he discussed the available options and made a recommendation. His explanation is consistent with the surrounding circumstances. The evidence establishes that Mr. Alavi wished to have the matter resolved as quickly as possible. It is entirely plausible that counsel would take that objective into account when advising on mode of trial.

[36] The evidence also establishes that Mr. Alavi generally relied on counsel’s advice throughout the proceedings. He testified that he trusted counsel and followed his recommendations. While that does not prove the election was informed, it is consistent with counsel’s evidence that advice was provided and accepted.

[37] I also note that there is no evidence that, before trial, Mr. Alavi expressed a wish to proceed in another forum or raised concerns about the election that had been entered. Standing alone, that fact carries little weight. Nevertheless, it forms part of the overall context in which the competing accounts must be assessed.

[38] Ultimately, I am unable to conclude, on a balance of probabilities, that trial counsel assumed responsibility for a decision that belonged to Mr. Alavi. The evidence does not establish that counsel told Mr. Alavi he had no choice. Nor does it establish that counsel made the election contrary to Mr. Alavi’s wishes. The evidence is equally consistent with counsel having recommended a course of action that Mr. Alavi accepted.

[39] At its highest, the evidence reveals uncertainty about the content and scope of the discussions that took place. That uncertainty is not enough. The burden rests with Mr. Alavi. Having considered all of the evidence, I am left with two plausible accounts and am unable to conclude that Mr. Alavi’s version is more likely true than that of trial counsel.

[40] Accordingly, I am not satisfied, on a balance of probabilities, that Mr. Alavi was deprived of the opportunity to make an informed election. Nor am I satisfied that trial counsel’s conduct in relation to the election fell below the standard of reasonable professional assistance.

[41] In any event, I am not persuaded that prejudice has been established. Mr. Alavi did not testify that he would have chosen a different mode of trial had additional or different advice been provided. Nor is there any evidentiary basis upon which I could conclude that a different election would likely have been made or that the choice of forum affected the fairness of the proceeding or the reliability of the verdict. This ground of the application is dismissed.

DECISION WHETHER TO CALL DEFENCE WITNESSES

Summary of the Evidence

[42] Mr. Alavi testified that he identified several individuals as potential defence witnesses, including Amir Hossein, Fouad, and Morvarid, all of whom were present at the gathering on the night in question. He stated that he informed trial counsel about these individuals and repeatedly expressed the view that they should testify.

[43] Mr. Alavi testified that Amir Hossein was present during important interactions with the complainant and could have provided evidence concerning the complainant's condition and Mr. Alavi's conduct toward her during the evening. According to Mr. Alavi, Amir Hossein attended a meeting with trial counsel shortly before trial, reviewed the events of the evening, and was asked to remain available to testify. Mr. Alavi testified that Amir Hossein took time away from work in anticipation of being called as a witness.

[44] Mr. Alavi further testified that, during the course of the trial, trial counsel advised him that neither Amir Hossein nor any other defence witness would be required because counsel believed sufficient weaknesses had emerged in the Crown's case to raise a reasonable doubt. Mr. Alavi stated that he accepted that advice and subsequently informed Amir Hossein that he would not be required to attend.

[45] With respect to Fouad, Mr. Alavi testified that Fouad was present throughout the evening, possessed relevant information concerning the events in question, and was willing to testify. He stated that trial counsel was made aware of Fouad but did not meet with him and ultimately chose not to call him as a witness.

[46] Mr. Alavi also identified Morvarid as a witness he believed should have been called. He testified that trial counsel spoke with her before trial and that she indicated a willingness to testify. Mr. Alavi believed her evidence would have been important because she was one of the few female attendees present during the gathering.

[47] Mr. Alavi testified that he disagreed with trial counsel's decision not to call any defence witnesses and remained of the view that their evidence would have assisted the defence case.

[48] Trial counsel acknowledged that Amir Hossein was identified as a potential witness and that he met with him before trial. Counsel testified that he considered the nature and scope of the anticipated evidence and concluded that it would not materially advance the defence.

[49] Counsel further testified that he communicated with Morvarid before trial and concluded that she had a limited recollection of the events and would not likely be a helpful witness. With respect to Fouad, counsel's evidence was that the anticipated value of his evidence was limited and largely duplicative of evidence that could have been provided by others.

[50] Trial counsel testified that the decision whether to call defence witnesses was revisited as the trial progressed. As the Crown's case unfolded, he formed the view that the defence was better served by relying on weaknesses and inconsistencies in the Crown's evidence rather than introducing additional witnesses whose evidence would provide little assistance and could detract from the defence strategy. He therefore decided not to call any defence witnesses.

[51] No affidavits were filed from Amir Hossein, Fouad, Morvarid, or any other proposed witness. No witness was called at the application to explain what evidence he or she would have given had they testified at trial.

Positions of the Parties

[52] The defence submits that trial counsel's failure to call available witnesses constituted ineffective assistance of counsel. It argues that the proposed witnesses were present during the events in question and were capable of providing evidence supportive of the defence position. In particular, the defence submits that their evidence could have provided context for the complainant's condition, corroborated aspects of Mr. Alavi's account of events, and strengthened the defence case generally.

[53] The defence further submits that trial counsel failed to adequately appreciate the value of the proposed evidence and abandoned a plan to call witnesses despite their availability and willingness to testify. According to the defence, the decision not to call any defence evidence deprived the court of potentially important evidence and undermined the fairness of the trial.

[54] The Crown submits that the decision whether to call a witness is a classic matter of trial strategy and is generally entitled to considerable deference. The Crown argues that trial counsel was aware of the proposed witnesses, considered their anticipated evidence, and made a reasoned strategic decision not to call them. The Crown maintains that Mr. Alavi has failed to establish that the decision was unreasonable, that the witnesses would have provided evidence materially advancing the defence, or that their absence affected the outcome of the trial.

Applicable Legal Principles

[55] The decision whether to call a witness is ordinarily a matter of trial strategy falling within counsel's professional judgment. In R. v. G.D.B., 2000 SCC 22, the Supreme Court of Canada recognized that while certain fundamental decisions require instructions from the accused, counsel retains implied authority to make tactical decisions concerning the conduct of the defence. Decisions about what evidence to call and which witnesses to present are generally among those tactical decisions. The courts have repeatedly cautioned against second-guessing strategic decisions made by trial counsel. In R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), the Court emphasized that allegations of ineffective assistance must be approached cautiously and that reviewing courts must avoid evaluating counsel's decisions through the distorting lens of hindsight. The issue is not whether a different strategy might now appear preferable, but whether counsel's conduct fell outside the broad range of reasonable professional assistance.

[56] The reason for this principle is straightforward. Trial counsel is responsible for assessing the anticipated value of proposed evidence, the manner in which a witness is likely to perform under cross-examination, whether the evidence advances the theory of the defence, and whether the benefits of calling the witness outweigh the associated risks. These are judgments that must often be made in real time as a trial unfolds.

[57] As with all allegations of ineffective assistance of counsel, the burden rests on the applicant. Mr. Alavi must establish, on a balance of probabilities, the factual foundation for the allegation, that counsel's conduct was deficient, and that the deficiency resulted in prejudice or a miscarriage of justice. R. v. Fiorilli, 2021 ONCA 461 confirms that the applicant bears the burden of proving all components of the claim.

Analysis

[58] This ground of the application concerns a decision that lies squarely within the realm of trial strategy. It is well established that decisions concerning the calling of witnesses are ordinarily entrusted to counsel and do not require express instructions from the accused. As the Supreme Court recognized in G.D.B., defence counsel retains implied authority to make tactical decisions regarding the presentation of the defence. The decision whether a witness should be called is one of the clearest examples of such a decision. It requires counsel to assess the anticipated evidence, its potential value, its consistency with the defence theory, the likely effect of cross-examination, and the overall risks and benefits of introducing the witness into the proceeding. These are matters of professional judgment that attract considerable deference.

[59] The evidence establishes that trial counsel was aware of the witnesses identified by Mr. Alavi and considered whether they should be called. This is not a case where potentially relevant witnesses were overlooked, ignored, or never investigated. Trial counsel met with Amir Hossein prior to trial. He spoke with Morvarid and assessed her anticipated evidence. He was also aware of Fouad and considered the potential value of his evidence. The issue is therefore not whether counsel failed to identify available witnesses. Rather, the issue is whether his decision not to call them fell outside the range of reasonable professional judgment.

[60] I am satisfied that it did not.

[61] Trial counsel testified that, as the evidence unfolded, he concluded that the defence case was better advanced by relying on weaknesses and inconsistencies in the Crown's evidence rather than by calling additional witnesses. That assessment was made in the context of the trial as it developed. Counsel was entitled to reassess his strategy in light of the evidence he heard and the impression formed from the Crown's witnesses. Tactical decisions are seldom static. A strategy that may appear appropriate before trial can properly be reconsidered as the evidence unfolds. The fact that trial counsel initially contemplated calling a witness does not mean he was obliged to do so once the Crown closed its case.

[62] Mr. Alavi disagrees with counsel's assessment. However, disagreement with a tactical decision does not establish ineffective assistance. As the Court of Appeal cautioned in Archer reviewing courts must avoid second-guessing strategic decisions through the distorting lens of hindsight. The question is not whether a different lawyer might have called the witnesses. Nor is it whether, after an adverse verdict, another strategy can be imagined. The question is whether the decision made was unreasonable in the circumstances confronting counsel at the time. On the record before me, I am unable to conclude that it was.

[63] The evidence concerning the proposed witnesses themselves is also significant. No affidavit was filed from Amir Hossein, Fouad, Morvarid, or any other proposed witness. None testified during this application. As a result, there is no direct evidence before the court establishing what any of them would actually have said had they been called at trial.

[64] That absence is particularly important because Mr. Alavi bears the burden of proving both deficient performance and resulting prejudice. The court cannot simply assume that a witness would have given evidence favourable to the defence. Nor can it assume that the evidence would have been accepted, would have survived cross-examination, or would have materially assisted the defence position. Without evidence from the witnesses themselves, any assessment of their likely impact remains speculative.

[65] The evidence relating to Amir Hossein illustrates the difficulty. Mr. Alavi testified that Amir Hossein could have provided evidence concerning his interactions with the complainant and his efforts to assist her when she was unwell. However, trial counsel's evidence was that, after meeting with Amir Hossein and assessing the anticipated evidence, he concluded it would not materially advance the defence case. The material before me provides support for that assessment. The evidence suggests that Amir's anticipated testimony related in large measure to peripheral matters, including the use of a THC vape and general observations concerning the gathering. Moreover, the information before counsel revealed inconsistencies concerning aspects of the proposed evidence, including the circumstances in which water was allegedly provided to the complainant. Trial counsel was entitled to take such considerations into account when determining whether the witness would ultimately assist or hinder the defence.

[66] The same reasoning applies to the other proposed witnesses. Trial counsel testified that Morvarid had little recollection of the relevant events and would not likely be a strong witness. He also concluded that Fouad's anticipated evidence would add little and would substantially overlap with other evidence available to the defence. Whether another lawyer would have reached the same conclusion is not the test. The question is whether these assessments were reasonably open to counsel on the information available to him. In my view, they clearly were.

[67] I also place some significance on the fact that Mr. Alavi was aware during the trial that defence witnesses would likely not be called. By his own evidence, trial counsel advised him that the defence would rely on weaknesses in the Crown's case and that neither he nor the proposed witnesses would likely be required. Mr. Alavi accepted that advice and informed Amir Hossein that he would not be needed. While that does not amount to a waiver of the present claim, it is consistent with trial counsel's evidence that the decision not to call witnesses was discussed and formed part of the overall defence strategy.

[68] Ultimately, this ground of the application suffers from a more fundamental difficulty. The court has no reliable evidentiary basis upon which to conclude that the absence of these witnesses created a reasonable possibility of a different outcome. Without evidence from the witnesses themselves, I cannot determine what they would have said, how they would have performed under cross-examination, whether their evidence would have been accepted, or whether it would have materially affected the issues that ultimately determined the verdict.

[69] The burden rests with Mr. Alavi. He must establish not only that trial counsel's decision was deficient, but that it resulted in prejudice or a miscarriage of justice. He has established neither. The evidence before me demonstrates that trial counsel considered the available witnesses, assessed their anticipated evidence, and made a strategic decision not to call them. That decision falls squarely within the protected sphere of tactical decision-making recognized in G.D.B.

[70] Even if another lawyer might have chosen a different course, that does not render the decision unreasonable.

[71] I am therefore not satisfied, on a balance of probabilities, that trial counsel's decision not to call the proposed witnesses fell below the standard of reasonable professional assistance. Nor am I satisfied that the absence of those witnesses undermined the fairness of the trial, affected the reliability of the verdict, or resulted in a miscarriage of justice.

[72] Accordingly, Mr. Alavi has failed to establish ineffective assistance of counsel in relation to the decision not to call defence witnesses. This ground of the application is dismissed.

DECISION WHETHER TO TESTIFY

Summary of the Evidence

[73] The evidence concerning the decision whether Mr. Alavi would testify was extensive and occupied a significant portion of the hearing. The evidence came primarily from Mr. Alavi and his trial counsel. Both provided affidavit evidence and testified at length. Although there was substantial agreement regarding the chronology of events and the fact that the issue was discussed repeatedly throughout the retainer, the witnesses differed materially regarding the nature of the advice given, the extent of trial preparation, and whether the ultimate decision not to testify remained Mr. Alavi's decision or became, as he submits, counsel's decision.

[74] Mr. Alavi testified that from the outset of the retainer he expected that he would testify. He regarded his testimony as a central part of his defence and believed that he would need to explain directly to the court what had occurred on June 4, 2023. He maintained throughout his affidavit and oral evidence that he never changed his mind on that issue. He consistently wanted to testify, believed he was capable of doing so, and considered his testimony essential to understanding the events that had given rise to the charge.

[75] According to Mr. Alavi, discussions concerning his testimony occurred throughout the solicitor-client relationship. He testified that counsel repeatedly discussed with him whether it would be strategically advantageous for him to testify and often emphasized that counsel would determine what was necessary for the defence. Mr. Alavi stated that he understood from those discussions that although the choice was technically his, counsel would effectively decide whether his evidence would be required. He testified that he accepted this because he trusted counsel's expertise and had confidence in his judgment.

[76] Mr. Alavi acknowledged that substantial preparation occurred before trial. He attended counsel's office repeatedly and spent significant time discussing the case. He testified that the most intensive preparation occurred during the week immediately preceding trial, when he met with counsel over several consecutive days. During those meetings, his own account of events was reviewed, revised and refined. Portions of his statement were edited and reorganized, and considerable attention was paid to ensuring that his narrative was coherent.

[77] However, Mr. Alavi maintained that there was a significant distinction between reviewing his own account and reviewing the Crown's case. He testified that disclosure was never meaningfully reviewed with him. According to him, he did not watch the complainant's recorded police statement, did not review her written statement in detail, did not review the statement of the complainant's sister, and did not receive a detailed explanation of the evidence expected from Crown witnesses. He maintained that his understanding of the Crown's case remained general rather than detailed and that he entered the trial without a complete appreciation of the evidence he would be required to confront if he testified.

[78] Mr. Alavi was equally critical of what he described as the absence of meaningful witness preparation. While he acknowledged discussing his own version of events repeatedly, he denied that trial counsel conducted rigorous witness preparation. He rejected counsel's evidence that mock cross-examinations occurred and maintained that he was never seriously challenged on areas of potential weakness in his evidence. According to Mr. Alavi, he was not confronted with prior inconsistencies, was not subjected to sustained questioning, and was not exposed to the type of scrutiny one would ordinarily expect before an accused person testified in a serious criminal case.

[79] Despite these criticisms, Mr. Alavi consistently maintained that he remained willing and prepared to testify. He stated that he repeatedly told counsel that he wished to give evidence and never instructed counsel that he did not want to take the stand.

[80] A significant piece of evidence concerned a voicemail exchange on September 7, 2024, during the course of the trial. Trial counsel left a message advising Mr. Alavi to continue preparing to testify because no final decision had yet been made regarding whether defence evidence would be required. According to counsel, the issue would depend on the manner in which the Crown's evidence unfolded and would not be finally determined until the Crown's case was complete.

[81] The response to that communication is not disputed. Mr. Alavi advised that he would be prepared to testify if necessary but that, if it ultimately proved unnecessary, that would be preferable. Both parties relied heavily on this communication. The Crown contends that it demonstrates the issue remained open throughout the trial. The defence submits that it merely reflects preparation for a decision that counsel would ultimately make.

[82] Mr. Alavi testified that the issue arose repeatedly during the trial itself. He described numerous discussions during breaks, lunch recesses and at the end of trial days. Most significantly, he testified that on the second day of trial he told counsel:

"I want to testify. I'm very ready to testify."

According to Mr. Alavi, counsel responded:

"Neither you or Amir Hossein is going to be needed as a witness. There is no need for that. We have enough reasonable doubt."

[83] Mr. Alavi regarded this conversation as important because it caused him to believe that counsel had already decided neither he nor any defence witness would testify.

[84] He further testified that similar discussions occurred throughout the balance of the trial. According to him, counsel repeatedly stated that the Crown's case was weakening, that reasonable doubt was emerging from the complainant's evidence, and that testimony from either Mr. Alavi or the proposed defence witnesses would be unnecessary. He testified that counsel repeatedly advised him to "forget about testifying" because there was no strategic benefit to exposing himself to cross-examination.

[85] Mr. Alavi also described discussions following Detective Henry's evidence. According to him, after that evidence was completed, he again raised the possibility of testifying and again received the same advice. Counsel remained of the view that the defence could succeed by relying on weaknesses in the Crown's case and that additional evidence was unnecessary.

[86] Mr. Alavi testified that he never independently decided not to testify. Rather, he wanted to testify throughout and ultimately deferred to counsel's recommendation because counsel was his lawyer and he trusted him. He stated that he felt disappointed when the defence case closed without evidence because he believed he had lost the opportunity to tell his story.

[87] Under cross-examination, Mr. Alavi acknowledged that he trusted counsel throughout the retainer and generally followed his advice. He agreed that he believed counsel was acting competently and in his best interests. He also acknowledged that he ultimately accepted counsel's recommendation not to testify. He agreed that he never insisted on being called as a witness, never directed counsel to call him regardless of counsel's recommendation, and did not object when the defence case was closed. He further agreed that he understood throughout the trial that counsel's position was that the defence could succeed without defence evidence.

[88] Trial counsel's account differed in significant respects.

[89] Counsel testified that from the earliest stages of the retainer he repeatedly advised Mr. Alavi that the ultimate decision whether to testify belonged to him. Counsel stated that because the defence position was one of consent, there was always a realistic possibility that Mr. Alavi would eventually be required to give evidence. For that reason, preparation proceeded on the assumption that testimony remained a genuine possibility.

[90] Counsel testified that extensive preparation occurred before trial. He stated that disclosure was reviewed with Mr. Alavi, including witness statements, video statements and Crown materials. They spent considerable time reviewing the complainant's evidence, discussing weaknesses in the Crown's case, and identifying areas that would likely become important during trial.

[91] Counsel also testified that he conducted mock cross-examinations. According to him, he challenged Mr. Alavi's account, tested anticipated responses and explored areas in which inconsistencies might be exposed by the Crown. Counsel stated that these exercises revealed concerns regarding aspects of Mr. Alavi's anticipated testimony and formed part of the basis for his eventual recommendation that Mr. Alavi not testify.

[92] With respect to the September 7, 2024 voicemail, trial counsel testified that it accurately reflected his thinking at the time. No final decision had been made. The issue remained open and depended on the strength of the Crown's case. He relied on Mr. Alavi's response as demonstrating that Mr. Alavi understood both the strategic significance of the issue and the possibility that not testifying could be advantageous.

[93] Counsel testified that his assessment evolved during the trial. As Crown witnesses testified and were cross-examined, he increasingly concluded that significant weaknesses existed in the Crown's case and that reasonable doubt could potentially be established without exposing Mr. Alavi to cross-examination. At the same time, he remained concerned about inconsistencies in Mr. Alavi's anticipated testimony and the risks associated with giving evidence.

[94] According to counsel, those concerns arose during preparation and were reinforced through the mock cross-examinations. He testified that he ultimately concluded the risks outweighed the potential benefits.

[95] Counsel stated that after the Crown's case was complete he advised Mr. Alavi that testimony would not improve the defence and could potentially harm it. He therefore recommended that no defence evidence be called. Counsel's evidence was that Mr. Alavi accepted that recommendation and instructed him not to call evidence.

[96] Both witnesses agreed that no written confirmation of instructions concerning the decision not to testify was obtained. Trial counsel candidly acknowledged that written instructions should have been secured and that his notes relating to the issue were limited.

[97] The evidence therefore presents two competing interpretations of the same events. Mr. Alavi says he consistently wanted to testify and ultimately deferred to what he perceived to be counsel's decision. Trial counsel says the issue remained open throughout the trial, extensive preparation occurred, strategic advice was repeatedly given, and Mr. Alavi ultimately chose to accept that advice.

Positions of the Parties

[98] The defence submits that Mr. Alavi was deprived of a fundamental decision that belonged exclusively to him. It argues that he consistently wanted to testify, repeatedly communicated that desire to trial counsel, and never independently decided not to take the stand. The defence relies particularly on Mr. Alavi's evidence that, during the trial, he advised counsel that he was ready to testify and was told that neither he nor Amir Hossein would be required because sufficient reasonable doubt had already been established. According to the defence, this and similar statements demonstrate that counsel had effectively determined how the defence case would proceed and that the decision was no longer being left to Mr. Alavi.

[99] The defence further submits that Mr. Alavi's eventual acceptance of counsel's recommendation should not be viewed as a genuine exercise of choice. Mr. Alavi trusted counsel, followed his advice throughout the retainer, and understood counsel to be the person ultimately responsible for deciding whether testimony was strategically necessary. In the defence's submission, the practical effect of counsel's conduct was that Mr. Alavi deferred to what he perceived to be counsel's decision rather than exercising his own independent judgment.

[100] The defence also argues that Mr. Alavi was not in a position to make an informed decision regarding whether to testify. It relies on his evidence that disclosure was not meaningfully reviewed with him, that he did not fully understand the Crown's case, and that he was not adequately prepared for cross-examination. According to the defence, an accused cannot meaningfully exercise the right to decide whether to testify unless he has first been properly informed of the evidence he may be required to answer and the risks associated with giving evidence.

[101] The Crown submits that the evidence establishes that the issue of testimony remained under active consideration throughout the trial and that the ultimate decision remained with Mr. Alavi. It relies heavily on the September 7, 2024 voicemail exchange, in which trial counsel instructed Mr. Alavi to continue preparing to testify because no final decision had yet been made. The Crown argues that both the voicemail and Mr. Alavi's response demonstrate that the issue remained open and that Mr. Alavi understood that testimony remained a realistic possibility depending on how the evidence unfolded.

[102] The Crown further submits that extensive preparation occurred before and during the trial. It relies on trial counsel's evidence that disclosure was reviewed with Mr. Alavi, that witness statements and video statements were discussed, and that mock cross-examinations were conducted. According to the Crown, the evidence demonstrates that Mr. Alavi understood the allegations, the defence theory, and the risks associated with testifying, and was therefore capable of making an informed decision.

[103] The Crown also submits that trial counsel had a reasonable strategic basis for recommending against testimony. Counsel's concerns regarding inconsistencies in Mr. Alavi's anticipated evidence, together with his assessment that reasonable doubt could be established from weaknesses in the Crown's case, provided a legitimate foundation for his advice. In the Crown's submission, counsel was entitled to provide strong and candid advice regarding those risks.

[104] Ultimately, the Crown argues that this is not a case in which counsel prevented an accused from testifying or usurped a fundamental decision. Rather, it is a case in which counsel provided strategic advice that Mr. Alavi chose to accept. The Crown submits that Mr. Alavi has failed to establish either deficient performance or any resulting prejudice or miscarriage of justice.

Applicable Legal Principles

[105] The decision whether to testify is one of the limited classes of fundamental decisions that belongs exclusively to the accused. It is not a matter of trial tactics entrusted to counsel's professional discretion. The Supreme Court of Canada has repeatedly recognized that certain decisions, including whether to plead guilty, how to elect mode of trial, and whether to testify, engage the personal autonomy of the accused and must ultimately be made by the accused himself. Counsel may advise on those matters but cannot substitute his or her own decision for that of the client: R. v. G.D.B.at paras. 34-35.

[106] At the same time, the fact that the decision belongs to the accused does not diminish counsel's obligation to provide candid and informed advice. Indeed, effective advocacy requires counsel to assess whether testimony is likely to assist or undermine the defence and to communicate that assessment to the client. Advice concerning whether an accused should testify commonly involves consideration of the strength of the Crown's case, the availability of reasonable doubt arising from the Crown evidence, the anticipated scope of cross-examination, the existence of prior inconsistent statements, and the likelihood that testimony will advance or damage the defence theory. Strong advice against testifying is not improper and, in some circumstances, may represent sound professional judgment.

[107] The critical distinction is therefore between advice and decision-making. The issue is not whether counsel influenced the accused's choice. Legal advice is intended to influence decision-making. Nor is the issue whether counsel forcefully recommended one course of action over another. The question is whether counsel deprived the accused of the ability to make the decision for himself. An accused may choose to follow counsel's recommendation and still exercise his own autonomy. The right is violated only where counsel effectively appropriates the decision or prevents the accused from exercising it.

[108] The Supreme Court's decision in R. v. White, 2022 SCC 7 also provides important guidance. The Court held that the loss of decision-making autonomy does not automatically establish a miscarriage of justice. Even where a fundamental decision has not been handled properly, the court must still consider whether the alleged deficiency affected the fairness of the proceeding, the reliability of the verdict, or otherwise resulted in a miscarriage of justice. The ultimate concern remains trial fairness and the integrity of the result.

[109] In assessing counsel's conduct, the court must avoid the distorting effects of hindsight. The issue is not whether another lawyer might have recommended that the accused testify or whether a different strategy might, after conviction, appear more attractive. The question is whether counsel's conduct fell outside the broad range of reasonable professional assistance when evaluated in the circumstances that existed at the time the advice was given. Courts must be particularly cautious about second-guessing strategic decisions made in the course of a trial after the outcome is known: Archer at paras. 139-141.

[110] Finally, this issue must be assessed within the established framework governing claims of ineffective assistance of counsel. The burden rests entirely upon Mr. Alavi. He must establish, on a balance of probabilities, the factual foundation for the allegation, that counsel's conduct fell below the standard of reasonable professional assistance, and that the alleged deficiency resulted in prejudice or a miscarriage of justice. Where the evidence leaves the court unable to prefer one competing account over another, the burden has not been met.

[111] Accordingly, the questions on this ground are whether trial counsel deprived Mr. Alavi of the ability to decide for himself whether to testify, whether counsel's conduct fell below the standard of reasonable professional assistance, and, if so, whether the alleged deficiency resulted in prejudice or a miscarriage of justice.

Analysis

[112] The decision whether to testify is a fundamental decision that belongs exclusively to the accused. It is one of the limited class of decisions that cannot be made by counsel, regardless of how strongly counsel may disagree with the course proposed by the client. Trial counsel's role is to provide advice, explain risks and benefits, and make recommendations grounded in professional judgment. The ultimate choice, however, must remain with the accused.

[113] The issue before me is therefore not whether trial counsel advised Mr. Alavi not to testify. The evidence clearly establishes that he did. Nor is the issue whether that advice was expressed strongly. Again, the evidence establishes that it was. The question is whether counsel crossed the line between providing advice and making the decision itself.

[114] I begin by identifying the matters that are not genuinely in dispute.

[115] I accept that Mr. Alavi wanted to testify. His evidence on that point was clear, consistent and unwavering. Throughout the retainer he viewed his testimony as an important component of the defence. He believed the court should hear directly from him regarding what occurred on June 4, 2023. I accept as well that he communicated that desire to trial counsel on numerous occasions. The evidence establishes that the possibility of testifying was discussed repeatedly before trial, during the intensive preparation sessions preceding trial, and throughout the trial itself. I further accept that trial counsel ultimately recommended that Mr. Alavi not testify and that no defence evidence be called apart from Detective Henry. Those matters are not seriously disputed.

[116] The dispute concerns how those events should be interpreted. Mr. Alavi's position is that he always wanted to testify but ultimately deferred to what he perceived to be counsel's decision. Trial counsel's position is that the issue remained open throughout the trial, that Mr. Alavi continued preparing on the assumption that he might be called, and that he ultimately accepted a recommendation that was grounded in counsel's evolving assessment of the evidence

[117] The resolution of that dispute turns largely on the contemporaneous evidence and on the overall chronology of events.

[118] The most important piece of evidence on this ground is the September 7, 2024 voicemail exchange. In my view, it is the most reliable evidence before the court concerning how both trial counsel and Mr. Alavi actually understood the issue during the trial itself. Unlike the testimony given during this hearing, the communication was not created after conviction and was not generated in contemplation of litigation. It therefore provides a particularly useful window into the parties' actual understanding at the time.

[119] The substance of the communication is significant. Trial counsel instructed Mr. Alavi to continue preparing to testify because no final decision had yet been made. Counsel's evidence was that whether testimony would be required depended upon how the Crown's case unfolded and could not be finally determined until the evidence had been heard and assessed. Mr. Alavi responded that he would be prepared to testify if necessary but that, if testimony ultimately proved unnecessary, that would be preferable.

[120] Several important conclusions flow from that exchange.

[121] First, the communication demonstrates that the issue remained open. Counsel was not communicating a decision that had already been made. Rather, he was directing further preparation because the matter remained unresolved. Had counsel already determined that Mr. Alavi would not testify, there would have been little reason to continue preparing him for testimony. In my view, the communication is fundamentally inconsistent with the proposition that counsel had already decided the matter.

[122] Second, the communication demonstrates that Mr. Alavi himself understood that no final decision had yet been made. His response acknowledges that testimony remained a realistic possibility. It is difficult to reconcile the exchange with the proposition that he believed the issue had already been conclusively removed from his control.

[123] Third, and importantly, the exchange demonstrates that both trial counsel and Mr. Alavi understood there could be strategic advantages to not testifying. Mr. Alavi's acknowledgment that it would be preferable if testimony ultimately proved unnecessary reflects an appreciation that avoiding cross-examination might itself benefit the defence. The communication therefore demonstrates not merely that testimony remained possible, but that both counsel and his client were actively assessing whether testimony would ultimately assist or undermine the defence.

[124] The September 7, 2024 communication is also significant because it is difficult to reconcile with several aspects of Mr. Alavi's present position. Mr. Alavi does not simply assert that he wanted to testify. I accept that he did. Rather, he asserts that trial counsel had effectively become the decision-maker and that the matter was no longer his to decide. Yet the voicemail reflects neither participant approaching the issue in that manner. Instead, it reflects an ongoing discussion regarding whether testimony would ultimately be necessary. It reflects a lawyer directing preparation because the matter remains live and unresolved, and a client acknowledging that possibility. In my view, the exchange supports trial counsel's account that the issue remained under active consideration far more strongly than it supports the theory that counsel had already appropriated the decision-making function.

[125] The defence nevertheless places considerable emphasis on the conversation that occurred during the second day of trial. According to Mr. Alavi, he advised counsel that he wished to testify and was "very ready" to do so. Counsel allegedly responded that neither he nor Amir Hossein would be required as witnesses because sufficient reasonable doubt had already been established.

[126] I accept that this exchange likely occurred substantially as Mr. Alavi described it. However, I do not accept the significance attributed to it by the defence.

[127] The statement cannot properly be assessed in isolation. It must be interpreted in the context of the evidence as a whole and in light of the circumstances in which it was made. At that stage of the trial, counsel had heard a substantial portion of the complainant’s testimony. He was beginning to assess whether weaknesses in the complainant's evidence were emerging and whether the defence strategy of relying upon those weaknesses was proving effective. Trial counsel's evidence was that his assessment evolved as the evidence unfolded and that he increasingly concluded that reasonable doubt could be achieved without exposing either Mr. Alavi or Amir Hossein to cross-examination.

[128] Viewed in that context, the statement attributed to counsel is more naturally understood as a strategic assessment than as an assumption of authority. It reflects counsel's developing view that testimony was becoming unnecessary. It does not establish that counsel had removed the choice from Mr. Alavi. Indeed, when viewed together with the September 7 voicemail, the more persuasive interpretation is that counsel was continually reassessing whether testimony would be required and communicating his ongoing assessment to his client as the Crown's case developed.

[129] What is equally significant is what the evidence does not establish.

[130] There is no evidence that trial counsel ever told Mr. Alavi that he was prohibited from testifying. There is no evidence that counsel told him that the decision belonged to counsel rather than to him. There is no evidence that Mr. Alavi directed counsel to call him as a witness despite counsel's recommendation and that counsel refused to do so. There is no evidence of a conflict between counsel and client regarding whether Mr. Alavi would testify. Rather, the evidence reveals continuing discussions, continuing preparation, and continuing reassessment of whether testimony was strategically necessary.

[131] The defence also argues that Mr. Alavi lacked sufficient information to make a meaningful decision because disclosure was not properly reviewed and because he was inadequately prepared for testimony. I do not accept that submission.

[132] On this issue, I prefer the evidence of trial counsel.

[133] Trial counsel's evidence concerning preparation was detailed, internally coherent and generally consistent with the objective record. He described extensive meetings with Mr. Alavi, review of disclosure, discussion of witness statements and video statements, analysis of the anticipated evidence, and preparation directed toward the possibility that Mr. Alavi would testify. He also testified that mock cross-examinations were conducted and that concerns emerged during those sessions regarding aspects of Mr. Alavi's anticipated evidence.

[134] The preparation evidence is important for several reasons. First, it demonstrates that the possibility of testimony was being treated seriously. Second, it provides an explanation for counsel's eventual recommendation. Third, it tends to undermine the assertion that counsel had predetermined from the outset that Mr. Alavi would not testify. Extensive preparation for testimony is difficult to reconcile with a decision that has already been irrevocably made.

[135] I also find it significant that trial counsel's account provides a coherent explanation for how his recommendation evolved. Counsel testified that concerns arose during preparation regarding inconsistencies in aspects of Mr. Alavi's anticipated evidence. As the Crown's case progressed, counsel increasingly concluded that the defence could potentially succeed by relying upon weaknesses in the complainant's evidence. At the same time, he remained concerned about the risks associated with exposing Mr. Alavi to cross-examination. This evidence describes a rational balancing exercise. Counsel was weighing what he perceived to be the benefits of testimony against what he perceived to be the risks. The recommendation ultimately given emerged from that assessment.

[136] Whether another lawyer might have reached the same conclusion is not the point. Trial counsel was entitled, indeed obliged, to assess the risks associated with testimony and to communicate that assessment to his client. Advice grounded in professional judgment does not become ineffective assistance merely because it is strongly expressed or because the client later regrets accepting it.

[137] I also reject the submission that Mr. Alavi lacked a meaningful understanding of the case he was called upon to meet. During the hearing of this application, Mr. Alavi demonstrated a detailed understanding of the allegations, the complainant's evidence, the perceived weaknesses in the Crown's case, the significance of the cross-examinations conducted at trial, and the broader defence strategy. His evidence revealed a sophisticated understanding of how the trial had unfolded. That level of understanding is inconsistent with the suggestion that he lacked sufficient information to make a meaningful decision regarding testimony.

[138] I therefore find that Mr. Alavi understood the allegations, understood the defence theory, understood the perceived strengths and weaknesses of the case, understood the risks associated with cross-examination, and possessed sufficient information to make an informed decision concerning whether to testify.

[139] I am again compelled to comment on trial counsel's poor documentation of significant matters during retainer.

[140] The decision whether an accused will testify is probably the most important decisions made in a criminal trial. It engages a fundamental right belonging exclusively to the accused. In circumstances where testimony remained under active consideration throughout the proceeding, where counsel anticipated that the accused might be called, and where the ultimate recommendation was not to testify, it was incumbent upon counsel to create a reliable and contemporaneous record of the instructions received.

[141] Trial counsel did not do so in this case.

[142] There is no written acknowledgment signed by Mr. Alavi. There is no confirming email, text message, memorandum to file, or detailed contemporaneous note recording the final instructions. The absence of any meaningful record is difficult to justify given the significance of the decision and the well-known risk that disputes of this nature may subsequently arise. The lack of documentation has unnecessarily complicated the resolution of this application and has required counsel and the applicant to reconstruct important discussions largely from memory.

[143] In my view, trial counsel's failure to properly document the final instructions fell below the standard of record-keeping that reasonably should be expected when dealing with a decision of this importance. Competent and prudent counsel would have ensured that the instructions were clearly recorded and preserved. Had that occurred, much of the uncertainty that now surrounds this issue could have been avoided.

[144] However, while I am critical of counsel's documentation practices, inadequate record-keeping does not establish ineffective assistance of counsel. Nor does it relieve Mr. Alavi of the burden of proof. The issue remains whether counsel deprived Mr. Alavi of the ability to decide whether he would testify. I am not satisfied that he did.

[145] I also place significant weight on Mr. Alavi's conduct at the time the decision was ultimately made.

[146] Mr. Alavi acknowledged that he trusted counsel. He acknowledged that he believed counsel was acting competently and in his best interests. He acknowledged that he accepted counsel's recommendation. He did not direct counsel to call him despite the recommendation being given. He did not insist upon taking the stand. He did not object when the defence case closed without evidence, apart from that of Detective Henry. I fully accept that a client is not required to engage in a confrontation with counsel in order to preserve a fundamental right. Nevertheless, these facts remain relevant. When considered together with the September 7 2024 voicemail, the extensive preparation for testimony, and the ongoing discussions throughout the trial, they are more consistent with acceptance of legal advice than with a denial of Mr. Alavi’s choice to testify.

[147] Ultimately, when the evidence is considered as a whole, a coherent picture emerges. The evidence establishes that trial counsel prepared Mr. Alavi for the possibility of testifying, continued that preparation during the trial, reassessed the need for testimony as the Crown's evidence unfolded, developed concerns about the risks associated with cross-examination, and ultimately recommended against calling defence evidence apart from Detective Henry. The evidence further establishes that the issue remained open until counsel had heard and assessed the Crown's case. Most importantly, the contemporaneous evidence does not support the proposition that counsel appropriated a decision belonging to the accused. Rather, it supports the conclusion that counsel provided strong strategic advice that Mr. Alavi ultimately accepted.

[148] I therefore find that Mr. Alavi wished to testify, prepared to testify, and remained willing to testify if necessary. I further find that he understood the strategic considerations associated with that decision and ultimately accepted trial counsel's recommendation that he not testify.

[149] Even if I were unable to prefer one account over the other, the claim would nevertheless fail. At its highest, the evidence establishes uncertainty regarding the precise content of the final discussions between trial counsel and Mr. Alavi. Such uncertainty cannot satisfy the burden resting upon Mr. Alavi. He bears the onus of establishing, on a balance of probabilities, that trial counsel appropriated a decision belonging to him. The evidence falls short of establishing that proposition.

[150] Accordingly, I am not satisfied that Mr. Alavi was deprived of his right to decide whether to testify. I am not satisfied that trial counsel's conduct fell below the standard of reasonable professional assistance. Nor am I satisfied that the fairness of the proceedings, the reliability of the verdict, or any fundamental right belonging to Mr. Alavi was compromised.

[151] This ground of the application is dismissed.

[152] For all the above reasons, the defence application for a mistrial is dismissed.

Released: August 19, 2026

Justice T. Lipson