This is a Crown appeal of a decision from the Court Of Appeal Of Newfoundland And Labrador allowing Mr. White’s appeal, setting aside his convictions, and ordered a new trial. In dissent, Justice Hoegg would have dismissed the appeal.

It is a case that deals with a defendant’s claim of ineffective assistance of counsel, as it relates to Counsel failing to obtain his informed instructions regarding his election of mode of trial.

The respondent was charged with aggravated assault, assault, uttering a threat, and damage to property. The Crown chose to proceed summarily on three hybrid offences, and the charge of aggravated assault entitled the accused to an election as to mode of trial. The accused's lawyer advised that the defence election was for a trial in Provincial Court. The respondent was found guilty by the trial judge. In appealing his convictions, the respondent claimed that his lawyer failed to obtain his informed instructions regarding his election of mode of trial. He claimed that he was not informed of his right to choose the mode of trial, which led to a miscarriage of justice.

The majority of the Court of Appeal found that Mr. White’s counsel did not obtain informed instructions from the accused regarding his election of mode of trial. They held that this amounted to a miscarriage of justice, and that unlike when the reliability of the verdict is questioned, where trial fairness is at issue, the accused is not required to establish further prejudice. In dissent, Justice Hoegg held that prejudice had to be proven for there to be a miscarriage of justice and a new trial ordered. She would have found that Mr. White received a fundamentally fair trial.