TORONTO -- A man convicted of sexually assaulting an acquaintance has won a new hearing because his lawyer didn't tell him about his trial options.

Had he been properly advised, the Ontario Court of Appeal ruled, Stephen Stark might have opted for a preliminary inquiry and trial in Superior Court rather than immediately face a provincial court judge alone -- as he did in 2013.

"I find merit in the appellant's argument that he was not given an adequate opportunity to consider electing his mode of trial," Justice Peter Lauwers said in the decision.

"While there might be cases in which trial counsel's failure to advise the accused person about the available modes of trial will not constitute a miscarriage of justice, this is not one of them."

Stark was charged after a woman in Port Dover, Ont., complained that he was drunk when he broke into her home and sexually assaulted her. He testified she agreed to the sex.

In June 2013, Ontario court judge Kevin Sherwood convicted Stark of sexual assault and break and enter, and later sentenced him to 15 months behind bars.

Stark appealed primarily on the grounds of inadequate representation by his lawyer, Mark Dresser, a normally difficult appeal route because counsel is presumed to be competent.

The appeal turned on what occurred after the prosecution announced at the start of the trial that it was proceeding by way of direct indictment on both charges, and the court asked -- as is normal -- whether Stark wished to proceed immediately or instead face a preliminary inquiry.

Defence lawyer Dresser, who said he was surprised at the prosecution's intentions, responded that Stark wanted to be tried right away.

In looking at the situation, the Appeal Court said it was clear the lawyer had prepared only for an immediate summary trial. When the prosecution announced its intentions to proceed by way of indictment, Dresser should have asked his client if he wanted to go the preliminary route -- a decision that is a fundamental right of an accused.

Dresser maintained he did ask Stark during a pause in proceedings that lasted at most 90 seconds, and the client gave him the go-ahead to proceed right away. Stark, however, said he didn't know what was going on, the lawyer didn't explain anything, and that he would have gone the preliminary inquiry route had he been given the choice.

While the prosecution backed the lawyer, the Appeal Court sided with Stark -- based largely on Dresser's admissions.

"(Dresser) agreed that he had no real opportunity to explain the advantages of the options to the appellant," the court said. "Their short conversation was in open court. He could have asked to stand the matter down, but did not."

At the end of the day, the Appeal Court said, Stark was the victim of a miscarriage of justice by forcing him to face a hearing without allowing him to make an informed election as to the mode of trial. What he might have done had he been aware of his options is not relevant, the court said.

"These facts are sufficient to fatally undermine the fairness of the trial. It is not this court's business to override an accused person's fundamental right to make the election by predicting retrospectively that his true choice would have been different."