Canadian Criminal Procedure and Practice/Trials/Ineffective Counsel

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General Principles[edit]

The "principles of fundamental justice" under section 7 of the Charter include the "right to effective assistance of counsel" in the criminal justice system.[1]

It has been adopted in Ontario,[2] Nova Scotia,[3] and British Columbia[4] that the proper test is as stated in the US case of Strickland v. Washington, 104 S. Ct. 2052 (1984) which states that:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”

A claim for ineffective assistance or incompetent counsel has two components. There must be performance that is incompetent (performance component) and the performance must result in a "miscarriage of justice" (the prejudice component). [5] Thusly, the applicant must prove:[6]

  1. the facts that underpin the claim on a balance of probabilities;
  2. the act or omission that was believed to be incompetent assistance by counsel;
  3. the incompetent assistance caused a miscarriage of justice by undermining either appearance of a fair trial or reliability of the verdict.

There is a presumption in favour of competence.

The level of competence expected is on a reasonableness standard for the particular case at the time.[7] The court cannot use the benefit of hindsight in their analysis.

Absent a possible injustice flowing from the incompetency of counsel there can be no appeal. [8]

The Courts are generally deferential to counsel in their conduct and given them wide latitude with defence strategy.[9]

The claimant will usually need to adduce fresh evidence by affidavit or oral testimony that sets out the deficiencies in trial counsel. The trial counsel will then be permitted to respond to the allegations. [10]

A court should not "blindly" accept an appellant's affidavit of evidence without any evidence from the trial counsel or trial record suggesting something is wrong.[11]

Unless the transcript confirms the allegations, the appeal counsel should present evidence from trial counsel. Where the transcript raises concerns of competence, the court should order evidence be taken from the trial counsel. If the court is satisfied from the surrounding circumstances and trial transcript that there is no valid concern, then the court can dismiss the appeal at a preliminary stage for failing to establish a factual foundation. In effect, a affidavit from the appellant does not necessarily establish a prima facie case. [12]

Some courts of appeal have protocols for handling appeals on incompetent counsel.[13]

  1. R. v. G.D.B., [2000] 1 S.C.R. 520, 2000 SCC 22, at para. 24
  2. R. v. Garofoli, 1988 CanLII 3270 (ONCA)
  3. R. v. Schofield (G.R.) 1996 CanLII 5462 (NSSC)
  4. R. v. Strauss (D.W.), 1995 CanLII 702 (BCCA)
  5. R v Gardiner, 2010 NBCA 46 at para. 2
  6. R. v. G. (D.M.), 2011 ONCA 343 at para. 100
    R v B(J) 2011 ONCA 404 at para. 2
    R. v. Joanisse 1995 CanLII 3507 (ON CA), (1995), 102 C.C.C. (3d) 35 (ONCA), at p. 59 leave to appeal refused, [1996] S.C.C.A. No. 347
    R v White 1997 CanLII 2426 (ON CA), (1997), 99 OAC 1 at paras 63-65, 114 CCC (3d) 225; leave to appeal denied, 117 CCC (3d) vi (SCC)
  7. Joanisse 1995 CanLII 3507 (ON CA) at pp. 60-61
  8. R. v. Ensor, [1989] 1 W.L.R. 497 (C.A.), Lord Lane, C.J.
  9. R. v. Kelly 52 O.A.C. 241 (ONCA)
    R. v. Jim, [2003] B.C.J. No. 1663 (Q.L.)(C.A.)
  10. R. v. O'Keefe (No. 2), 2012 NLCA 25 at 14
    R. v. Freake, 2012 NLCA 10
  11. R. v. Munson, 2012 MBCA 111 (CanLII)
  12. R. v. Le (T.D.), 2011 MBCA 83 (CanLII) at para. 178
  13. R. v. Munson, 2012 MBCA 111 (CanLII) see appendix

Case Digests[edit]