|
Appeal-Judicial Review - Ineffective Assistance of Counsel
NOTE
This ground of appeal is more commonly raised in criminal cases, though it can be applied in civil too.
MORE CASES
Part 2 | Part 3 | Part 4
. D.M. v. The Children’s Aid Society of Ottawa
In D.M. v. The Children’s Aid Society of Ottawa (Div Ct, 2021) the Divisional Court considered the appeal ground of ineffective assistance of counsel, here in a child custody case with a self-representing party:[197] While I shall address this ground of appeal on its merits, I begin by noting that the case law establishes that ineffective assistance of counsel cannot be raised as a ground of appeal unless the criticized counsel is given notice and given an opportunity to participate in the appeal to dispute the allegation of professional incompetence.[44] Notice was not given in the immediate case, and thus for this reason alone, this ground of appeal fails.
....
[206] Assuming, however, that D.M. can raise the issue of the quality of her counsel’s representation of her in the child protection proceedings, in Windsor-Essex Children's Aid Society v. R.H.C.,[48] the Court of Appeal held that the test for establishing ineffective assistance of counsel in the child protection context as a ground of appeal was set out by the Divisional Court in K.R. v. CAS,[49] which, test drew on the principles set forth in the Court of Appeal’s decision in R. v. Archer[50] for criminal matters. Thus, to succeed on showing there was ineffective assistance of counsel, the appellant must establish on the balance of probabilities that: (a) the lawyer's acts or omissions amounted to incompetence, measured against a reasonableness standard and having regard to the circumstances as they existed when the impugned acts or omissions occurred and a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance; and (b) the lawyer's ineffective representation, if established, caused a miscarriage of justice.[51]
[207] A miscarriage of justice occurs if counsel's ineffective representation undermined the appearance of the fairness of the hearing or the reliability of the result in the sense that there is a reasonable possibility that the judge's decision could have been different but for the lawyer’s incompetence. . R. v. Kaczmarek
In R. v. Kaczmarek (Ont CA, 2021) the Court of Appeal set out the test for ineffective assistance of counsel:[74] The applicable legal principles for ineffective assistance of counsel claims are well-established. To succeed, Mr. Kaczmarek must establish: (1) the facts material to the claim of ineffective assistance on a balance of probabilities; (2) that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and (3) the ineffective representation resulted in a miscarriage of justice: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-27; R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35, at pp. 43-46. . R. v. Kormendy
In this criminal appeal R. v. Kormendy (Ont CA, 2021) the Court of Appeal considered the issue of inadequate assistance of counsel:[6] The analysis of ineffective assistance of counsel proceeds on a strong presumption that the counsel’s conduct fell within the wide range of reasonable professional assistance. The purpose of the inquiry is not to grade trial counsel’s performance, but to determine whether a miscarriage of justice occurred: see R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 85 O.A.C. 186 (C.A.) at para. 74, leave to appeal refused, [1996] S.C.C.A. No. 347.
[7] To determine whether a miscarriage of justice has occurred, the court considers whether the appellant has established the following:1. the facts material to his claim on a balance of probabilities;
2. that trial counsel’s representation (or performance) was incompetent;
3. that a miscarriage of justice occurred due to the incompetent representation (the prejudice aspect of the claim). [8] If there is a factual basis for the claim, the court first considers whether a miscarriage of justice occurred. If there is no miscarriage of justice, it is unnecessary to proceed with the performance component of the claim: see Joanisse, at paras. 71-73; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 51-59. . R v Gibson
In R v Gibson (Ont CA, 2021) the Court of Appeal considered an issue of ineffective assistance of counsel in a criminal appeal:[143] The test for establishing ineffective assistance of trial counsel is not in dispute. The appellant must establish the factual foundation for the claim, incompetence of counsel and miscarriage of justice resulting from such incompetence. With respect to the incompetence of counsel element, there is a strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to rebut this presumption. The analysis is conducted without the benefit of hindsight. See R. v. Ramos, 2020 MBCA 111, at paras. 119-20, aff’d 2021 SCC 15. . R. v. Fiorilli
In R. v. Fiorilli (Ont CA, 2021) the Court of Appeal extensively considered the principles involved in an ineffective assistance of counsel appeal ground (in a criminal case):THE RELEVANT LEGAL PRINCIPLES
[47] The right to effective assistance of counsel is of such importance that effective representation is a principle of fundamental justice: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 24. However, “[c]ounsel’s failure to meet competence standards does not automatically lead to a reversal of a conviction,” as “[t]he ultimate purpose of the appellate inquiry is not to grade counsel’s performance, but to determine whether a miscarriage of justice occurred”: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 62, leave to appeal refused, [1996] S.C.C.A. No. 347.
[48] A three-part test is used to determine ineffective assistance of counsel appeals, with the appellant bearing the onus of proof and persuasion with respect to each part. The structure of the test was neatly summarized by Watt J.A. in R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91:An appellant must establish:
i. the facts on which the claim is grounded [the factual component];
ii. the incompetence of the representation provided by trial counsel (the performance component); and
iii. a miscarriage of justice as a result of the incompetent representation by trial counsel (the prejudice component). [49] Naturally, the factual component is examined first, since there is no point in assessing the competence of unproven acts or omissions. As Watt J.A. affirmed, “Once the facts that underpin the claim have been established, the ineffective assistance analysis begins with the prejudice component”: Girn, at para. 92. This is because if the prejudice component cannot be met, there is no reason to subject the performance of counsel to judicial inquiry: R. v. G.D.B., at para. 29. Put simply, it will usually be the case that the proper analytical order of the three-part test is (i), (iii), and then (ii).
[50] Each of the three parts of the test requires elaboration.
(i) The Factual Component
[51] The factual component requires the appellant to “establish the facts material to the claim of ineffective assistance on the balance of probabilities”: R. v. K.K.M., 2020 ONCA 736, at para. 55. In determining whether an appellant has done so, allegations of incompetent representation must be assessed in light of the “strong presumption of competence in favour of counsel”: R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 140. Courts should also be mindful of the incentive there may be for a convicted appellant to make false allegations, particularly in light of the ease with which false allegations can be made, and the potential unreliability that can arise when events are recalled “through the bars of a jail cell”: Archer, at para. 142. As Doherty J.A. noted in Archer, at para. 141, “Common sense dictates a cautious approach to allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms.”
(ii) The Performance Component
[52] To meet the performance component of the test “the appellant must demonstrate that counsel’s acts or omissions amounted to incompetence”, with incompetence “measured against a reasonableness standard”: Archer, at para. 119. The test for establishing incompetence is “a strict one”; the appellant must show that “the acts or omissions of counsel could not ‘have been the result of reasonable professional judgment’”: R. v. Prebtani, 2008 ONCA 735, 243 O.A.C. 207, at para. 3 (quoting from R. v. G.D.B., at para. 27), leave to appeal refused, [2009] S.C.C.A. No. 153.
[53] In assessing the performance component, an appellate court must be mindful that the “art of advocacy yields few, if any, absolute rules”, and that there exists a “broad spectrum of professional judgment that might be considered reasonable”: R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 (Ont. C.A.), at p. 247, leave to appeal refused, [1997] S.C.C.A. No. 248. In Archer, at para. 119, Doherty J.A. helpfully elaborated on the highly deferential standard that applies when assessing the performance component:That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”. [Citations omitted.] (iii) The Prejudice Component
[54] To satisfy the prejudice component, “the appellant must show the ineffective representation resulted in a miscarriage of justice, ether by rendering the trial unfair or the verdict unreliable”: R. v. K.K.M., at para. 55. Put otherwise, the appellant must meet either or both of two alternative prejudice branches, the ‘trial fairness’ branch, and the ‘unreliable verdict’ branch.
The trial fairness branch of the prejudice component
[55] The trial fairness branch of the prejudice component is concerned with the “adjudicative fairness of the process used to arrive at the verdict”: Joanisse, at p. 57. Occasionally, appellate courts refer to “procedural” fairness instead of trial fairness to describe this branch: see e.g., R. v. G.D.B., at para. 34; Prebtani, at para. 4. In Joanisse, when illustrating the kinds of infirmities in legal representation that might cause a trial to become unfair, at pp. 62-63, Doherty J.A. spoke of lawyers who are intoxicated throughout a trial, or who are acting in a conflict of interest. In such cases, the incompetence is so pervasive that it destroys the fairness of the adjudicative process at trial, thereby amounting to a constructive denial of the assistance of counsel: Joanisse, at pp. 62-63.
[56] Some of the decisions that must be made during the course of a trial, such as the mode of trial, whether to testify or plead guilty, or whether to advance the defence of not criminally responsible, are so fundamental to procedural fairness that counsel’s failure to permit the appellant to make the decision, or to provide effective advice on the matter, can raise questions of procedural fairness: R. v. G.D.B., at para. 34; R. v. Trought, 2021 ONCA 379, at paras. 46-50.
[57] Where the trial fairness branch of the prejudice component is at issue, the focus is, in fact, on “the appearance of the fairness of the trial”: Archer, at para. 120. This is in keeping with the principle that “justice must not only be done, but must manifestly be seen to be done”: Joanisse, at p. 63, citing R. v. Cook and Cain (1980), 1980 CanLII 2839 (ON CA), 53 C.C.C. (2d) 217 (Ont. C.A.), at p. 224. If counsel’s performance has undermined the appearance of trial fairness, no further prejudice need be established: R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, at para. 14.
The unreliable verdict branch of the prejudice component
[58] The unreliable verdict branch of the prejudice component operates differently than the trial fairness branch. As its name suggests, the unreliable verdict branch is concerned with the confidence that can be placed in the validity or reliability of the result of the trial: R. v. Dunbar, 2007 ONCA 840, at para. 23; R. v. Nwagwu, 2015 ONCA 526, [2015] O.J. No. 3695, at para. 7. In Joanisse, at p. 63, Doherty J.A. explained this branch as follows:Some claims of incompetence relate to specific decisions made or actions taken by counsel in the course of the defence. These claims do not assert an actual or constructive denial of the assistance of counsel, but instead contend that the assistance given was so deficient that it was ineffective. These claims come down to the assertion that because of counsel’s incompetence, the defence was not properly put, or the Crown’s case was not properly challenged. In these situations, the effect on the fairness of the trial of counsel’s incompetence is measured by reference to the impact of the error or errors on the reliability of the result. [59] This court spoke in Archer, at para. 120, of the appellant satisfying the unreliable verdict branch of the prejudice component by demonstrating that “had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different” (emphasis added). However, the authorities coalesce in requiring the appellant to establish a reasonable probability that the result would have been different: see e.g., Joanisse, at p. 64; Prebtani, at para. 4; R. v. R.S., 2016 ONCA 655, 341 C.C.C. (3d) 530, at para. 44; R. v. Al-Shammari, 2016 ONCA 614, 350 O.A.C. 369, at para. 75. In Joanisse, at p. 75, Doherty J.A. described a “reasonable probability” as “more than a mere possibility, but less than a likelihood”. In Al-Shammari, at para. 75, Juriansz J.A. said “a reasonable probability is established when the reviewing court is satisfied that because of counsel’s incompetence, the verdict cannot be taken as a reliable assessment of the appellant’s culpability.” . R. v. Trought
In R. v. Trought (Ont CA, 2021) the Court of Appeal set out basics of ineffective assistance of counsel as an appeal ground:[42] The framework for assessing claims of ineffective assistance of counsel is well-established. The appellant must establish: (1) the facts material to the claim of ineffective assistance on the balance of probabilities; (2) that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and (3) the ineffective representation resulted in a miscarriage of justice: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-27; Joanisse, at p. 59.
[43] Elaborating on the third criterion, miscarriages of justice may take various forms. Some may impact on the outcome of the trial; others may disclose unfairness in the proceedings: R. v. K.K.M., 2020 ONCA 736, at paras. 55, 91. As Major J. said in G.D.B., at para. 28: “In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised.”
[44] In R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73, this court found that the appellant’s trial counsel made the election as to mode of trial without consulting his client, resulting in a finding of ineffective assistance of counsel. Lauwers J.A. said, at para. 20: “The miscarriage of justice lies in proceeding against the accused without allowing him to make an informed election, and the accused need not establish further prejudice. What the accused might or might not have done had he been aware of his options is not relevant.” See also K.K.M., at para. 91. This court has recognized that public confidence in the administration of justice is just as shaken by the appearance, as by the fact of an unfair proceeding: see, for example, R. v. Olusoga, 2019 ONCA 565, 377 C.C.C. (3d) 143, at para. 13; and R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 51. . R. v. Faudar
In R. v. Faudar (Ont CA, 2021) the Court of Appeal considered the issue of inadequate assistance of counsel:[103] The right to effective assistance of counsel is a principle of fundamental justice: R. v. G.D.B., 2000 SCC 22, 143 C.C.C. (3d) 289, at para. 24. As Doherty J.A. wrote in Joanisse, at p. 57:Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice. [104] To succeed on a ground of appeal on the basis of ineffective assistance of counsel, an appellant must establish three elements:i. the facts on which the ineffectiveness claim is based on a balance of probabilities;
ii. that the representation provided by trial counsel amounted to incompetence on a reasonableness standard (the performance component of the test); and
iii. that the incompetent representation resulted in a miscarriage of justice (the prejudice component of the test): Joanisse, at p. 59; R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120; G.D.B., at paras. 24, 26; R. v. Hartling, 2020 ONCA 243, 150 O.R. (3d) 224, at paras. 73-74; R. v. Cherrington, 2018 ONCA 653, at para. 25. [105] This test presents a high bar that is not easily met: Cherrington, at para. 25. The standard is not perfection. Rather, the court must measure counsel’s performance or competence against a reasonableness standard, having regard to the circumstances as they existed when the impugned acts or omissions occurred. Different lawyers may have run the trial differently, but that does not mean a trial counsel’s choices are incompetent. Appellate courts must give deference to the choices made by trial counsel and the benefit of hindsight plays no part in this assessment: Joanisse, at para. 72; Archer, at para. 119; G.D.B., at para. 27; Hartling, at para. 74.
[106] Once the appellant has established the facts underpinning the claim of ineffectiveness under the first branch of the test, the analysis turns to the third branch – the prejudice component. If there was no prejudice, then it is undesirable for the court to proceed to the second branch, or the performance component, of the test: G.D.B., at para. 29; Hartling, at para. 74. In regard to the prejudice element of the test, there are two ways to show prejudice:1. the appellant must establish that there is a reasonable probability that the verdict would have been different had he received effective legal representation; or
2. he must show that his counsel’s conduct deprived him of a fair trial. [107] A reasonable probability is a “probability sufficient to undermine confidence in the outcome”: Joanisse, at paras. 74, 79-80; Archer, at para. 120; R. v. Davies, 2008 ONCA 209, 234 O.A.C. 291, at para. 37.
[108] If prejudice is made out, the court turns to the second branch – the performance component. The analysis under the second branch proceeds upon a strong presumption that counsel’s conduct fell within the wide parameters of reasonable professional assistance: G.D.B., at para. 27; Hartling, at para. 74. . R. v. K.K.M.
In R. v. K.K.M. (Ont CA, 2020) the Court of Appeal set out the criteria for an 'ineffective assistance of counsel' claim:[55] An appellant who advances an ineffective assistance of counsel claim must show three things. First, the appellant must establish the facts material to the claim of ineffective assistance on the balance of probabilities. Second, the appellant must demonstrate trial counsel’s representation was ineffective. Trial counsel’s representation of an accused is ineffective only if it falls below what is reasonably expected of trial counsel in all the circumstances. Third, the appellant must show the ineffective representation resulted in a miscarriage of justice, either by rendering the trial unfair or the verdict unreliable: see R. v. Archer, 2005 CanLII 36444, at paras. 119, 202 C.C.C. (3d) 60 (Ont. C.A.); R. v. Qiu, 2010 ONCA 736, at paras. 6-8; R. v. D.G.M., 2018 MBCA 88, at para. 7; R. v. Stark, 2017 ONCA 148, at paras. 12-14; R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225, at 247 (Ont. C.A.), leave to appeal to SCC refused, [1997] S.C.C.A. No. 248.
....
[63] Counsel’s conduct is measured against the standard of reasonable professional judgment: R. v. D.G.M., at para. 7, and by reference to the circumstances as they existed when the decision was made. Hindsight has no role to play. Advice and representation that were reasonable when provided cannot be made unreasonable by virtue of an adverse verdict: R. v. Archer, at para. 119; R. v. Fraser, 2011 NSCA 70, at paras. 53, 80. As stated by Major J., in R. v. G.G.B., 2000 SCC 22, at para. 27:The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. . R. v. Eid
In R. v. E (Ont CA, 2020) the Court of Appeal set out the appeal ground of inadequate assistance of counsel, here in a criminal case:[6] We would reject this ground of appeal. As Watt J.A. affirmed in R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91, in order to succeed, Mr. Eid must establish:i. the facts on which the claim is grounded;
ii. the incompetence of the representation provided by trial counsel (the performance component); and
iii. a miscarriage of justice as a result of the incompetent representation by trial counsel (the prejudice component). [Emphasis in original.] [7] Watt J.A. further explained that this burden is not easily satisfied and that, if the facts that underpin the claim are established, the analysis begins with the prejudice component: Girn, at paras. 91-92. If either of the factual or prejudice components are not established, there will be no need to determine whether the representation was incompetent. That is the case here. . Walker v. Coldin
In Walker v. Coldin (Ont CA, 2020) the Court of Appeal stated the availability of 'inadequate assistance of counsel' as a ground of appeal in a civil case:[5] First, in what appears to be the appellants’ primary ground of appeal, they claim ineffective assistance of counsel. Ineffective assistance of counsel as a ground for a new trial in a civil action is available only in the rarest of cases: see W. (D.) v. White, 2004 CanLII 22543 (ON CA), [2004] 189 O.A.C. 256, leave to appeal refused, [2004] S.C.C.A. No. 486. Examples of the types of cases in which the ground might be available include “cases involving some overriding public interest or cases engaging the interests of vulnerable persons like children or persons under mental disability or cases in which one party to the litigation is somehow complicit in the failure of counsel opposite to attain a reasonable standard of representation”: W. (D.), at para. 55. This case clearly does not fall within the exceptional types of circumstances where ineffective assistance of counsel can form a ground of appeal in a civil action.
|
