Simon's Megalomaniacal Legal Resources

Appeal-Judicial Review - Ineffective Assistance of Counsel (2)

. R. v. Gibbs

In R. v. Gibbs (Ont CA, 2022) the Court of Appeal stated the elements of an 'ineffective assistance of counsel' appeal ground:

[15] To succeed on the ground of ineffective assistance of counsel, the appellant must show that “counsel’s assistance was so ineffective that the appellant’s conviction is the product of a miscarriage of justice” by proving the following three elements:

1. The facts underpinning the allegation;

2. Trial counsel’s acts or omissions amounted to incompetence;

3. Trial counsel’s ineffective performance led to a prejudice in the form of a miscarriage of justice.

See: R. v. Sararas, 2022 ONCA 58, at paras. 41-42.

....

[17] As the appellant conceded on his cross-examination, at the time of the plea, he was aware that he had the right to a trial and that he was waiving it by entering a guilty plea. In any event, as the Supreme Court clarified in R. v. White, 2022 SCC 7, 411 C.C.C. (3d) 419, at paras. 5-8, the failure of counsel to advise an accused of modes of trial does not by itself amount to ineffective assistance of counsel or a miscarriage of justice; the appellant must demonstrate more than the loss of an informed choice and show that he would have chosen differently had counsel informed him of his right to elect his mode of trial. The appellant here has failed to do so.

. Children’s Aid Society (Niagara) v. T. E.

In Children’s Aid Society (Niagara) v. T. E. (Div Court, 2022) the Divisional Court considered an ineffective assistance of counsel ground of appeal, here in a child welfare matter:

[52] In Windsor-Essex Children’s Aid Society v. R.H.C., 2016 ONCA 595, at para. 5, the Court of Appeal held that the applicable principles to consider in an ineffective assistance of counsel argument are set out by the Divisional Court in K.R. v. CAS, 2015 ONSC 3769, [2015] O.J. No. 2850, at paras. 7-8, which, in turn, draws on the principles articulated in R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60, 203 O.A.C. 56 (C.A.), at paras. 119-120. To succeed in establishing ineffective assistance of counsel in the child protection context as a ground of appeal, the appellant must establish on a 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.

[53] The law is clear that in order to advance a claim of ineffective assistance of counsel, the counsel being criticized must be given notice and provided an opportunity to participate in the appeal to respond to the allegation of incompetence. See: D.M. v. Children’s Aid Society of Ottawa, [2021] O.J. No. 7094, at para. 197.

[54] It is inappropriate to consider a claim of ineffective assistance of counsel when former counsel was not advised of the claim and given an opportunity to respond. See: J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 (CanLII), [2021] O.J. No. 369 (Div. Ct.), at para. 25.

[55] As former counsel for T.E. was not given notice of this ground of appeal, for this reason alone, this ground of appeal is dismissed.

. R. v. Clement

In R. v. Clement (Ont CA, 2022) the Court of Appeal considered an issue of inadequate assistance of counsel:

[17] An appellant who advances an ineffective assistance of counsel claim must show three things: (i) the appellant must establish the facts material to the claim of ineffective assistance on the balance of probabilities [the factual component]; (ii) the appellant must demonstrate trial counsel’s representation was ineffective [performance component]; and (iii) the appellant must show the ineffective representation resulted in a miscarriage of justice, either by rendering the trial unfair or the verdict unreliable [prejudice component]: R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 48.

[18] Once the factual component has been established, the ineffective assistance analysis begins with the prejudice component. This is because if the prejudice component cannot be met, there is no reason to subject the performance of counsel to judicial inquiry: Fiorilli, at para. 49; and R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29. To succeed on this appeal, the appellant must satisfy us that there is a reasonable probability that, but for counsel’s ineffective assistance, the result would have been different: R. v. Joanisse, (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C. A.), at p. 64, leave to appeal refused, [1996] S.C.C.A. No. 347; R. v. Jex, 2007 ONCA 737, 230 O.A.C. 77, at para. 4. This threshold will be met where the cumulative effect of the provision of ineffective assistance is “sufficient to undermine confidence in the outcome”: Joanisse, at p. 64. If an appellant establishes ineffective representation that resulted in a miscarriage of justice, his or her conviction will be quashed: Joanisse, at p. 43.

. R. v. Sagos

In R. v. Sagos (Ont CA, 2022) the Court of Appeal considered the issue of inadequate assistance of counsel in a criminal context, here the admissibility of the impugned counsel's testimony:

[23] I would also reject counsel’s argument that trial counsel could not be compelled to give evidence on the ineffective assistance motion. Section 683(1)(b) of the Criminal Code provides that the Court of Appeal may direct any witness to attend for examination if that witness would have been a “compellable witness at the trial”. Counsel for the appellant argued that trial counsel was not a compellable witness at the appellant’s trial. This court has held to the contrary: R. v. 1504413 Ontario Ltd., 2008 ONCA 253, 90 O.R. (3d) 122, at paras. 13-14; R. v. Colbourne (2001), 2001 CanLII 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 51.

[24] Trial counsel, either for the defence or the prosecution, is a compellable witness at trial, although the circumstances in which trial counsel will be required to testify are narrowly circumscribed by the demands of the interests of justice. I have no doubt that were the competence or integrity of trial counsel raised at trial, perhaps on a Charter-related motion, trial counsel would be a compellable witness, and the interests of justice could well demand that trial counsel testify to permit a proper resolution of the issue. In holding that trial counsel is a compellable witness, I, of course, do not suggest that the applicable rules of evidence, e.g. client-solicitor privilege, would not apply to trial counsel’s evidence.

[25] The appellant had the onus of demonstrating that he received ineffective assistance of counsel. It was his responsibility to prove the facts underlying that claim. Counsel’s decision to not seek an order compelling trial counsel to give evidence in response to the ineffective assistance allegations permits the inference that anything trial counsel may have said would have either undermined the appellant’s claim or, at a minimum, not helped the appellant’s claim. As counsel could have compelled evidence from trial counsel, there is no basis upon which to draw any inference favourable to the appellant from the absence of any evidence from trial counsel.

[26] Quite apart from counsel’s failure to seek an order requiring trial counsel to give evidence, I would not draw any inference from trial counsel’s failure to provide an affidavit in the circumstances of this case, where there was no affidavit from the appellant in support of the allegations. Trial counsel refused to provide an affidavit based on legal advice given to trial counsel by counsel for LAWPRO, who had been retained to defend trial counsel against the allegations. The only reasonable inference that could be drawn is that trial counsel decided to follow the legal advice of his lawyer.

[27] Turning to the appellant’s failure to provide any affidavit, I accept that there are situations in which the trial record, as augmented by admissible evidence tendered on the motion, could establish the facts on which the ineffective assistance claim is based without any affidavit from the appellant. Indeed, there are situations in which the underlying facts are not in dispute: e.g., see R. v. Ally, 2022 ONCA 558, at paras. 216-17. If, however, the facts on which the ineffective assistance claim are predicated are in dispute and the appellant could reasonably be expected to have information relevant to those facts, the appellant’s failure to provide an affidavit invites an adverse inference against the validity of the claims.

[28] Some of the claims made by the appellant in this appeal rest on factual allegations in respect of which one could reasonably expect the appellant to have relevant information. The appellant’s failure to provide any affidavit in relation to those allegations weakens the argument for drawing any inference in favour of those facts.

. R. v. McDonald

In R. v. McDonald (Ont CA, 2022) the Court of Appeal canvasses principles of inadequate assistance of counsel, here in a criminal case:

Principles

[45] As discussed in R. v. Sararas, 2022 ONCA 58, at para. 41, an accused is entitled to receive effective assistance from counsel. To succeed on appeal, the appellant must show that the assistance was so ineffective that the conviction is the product of a miscarriage of justice: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 57, leave to appeal refused, [1996] S.C.C.A. No. 347. To establish ineffective assistance of counsel, the appellant must establish:

1. the facts on which the claim is grounded on a balance of probabilities;

2. the incompetence of the representation provided by trial counsel (the “performance” component); and

3. a miscarriage of justice as a result of the incompetent representation by trial counsel (the “prejudice” component): R. v. Cherrington, 2018 ONCA 653, at para. 25; R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91, R. v. White, 2022 SCC 7 (“White (2022)”).

[46] Paciocco J.A. described the factual component in R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 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.”

[47] As to the performance component, there is a strong presumption that trial counsel’s conduct falls within a vast expanse of reasonable professional assistance and the appellant bears the burden of displacing that presumption, a burden that is not easily discharged: R. v. G. (D.M.), 2011 ONCA 343, 105 O.R. (3d) 481, at paras. 101 and 107. Thus, competence is measured against a standard of reasonableness: Sararas, at para. 43. 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, leave to appeal refused, [2009] S.C.C.A. No. 153.

[48] When an appellate court reviews trial counsel’s performance, “deference is called for because of the broad spectrum of professional judgment that might be considered reasonable”: R. v. White (1997), 1997 CanLII 2426 (ON CA), 32 O.R. (3d) 722 (C.A.), at p. 745 (“White (1997)”). Hindsight plays no role in the assessment: Archer, at para. 119.

[49] As Watt J.A. explained in G. (D.M.), at paras. 108 and 109:

It is critical to keep in mind that, during the course of criminal proceedings, defence counsel make many decisions in good faith and in the best interests of his or her client. We ought not look behind every decision counsel makes, except where it is essential to prevent a miscarriage of justice. Defence counsel need not always obtain approval for each and every decision they make in the conduct of an accused’s defence: B. (G.D.), at para. 34.

On the other hand, some decisions, like whether to enter a plea of guilty or whether to testify, require instructions from the client. It is for the client, not for counsel, to make these decisions. The failure to discuss these issues with the client and to obtain the necessary instructions may raise questions of procedural fairness and the reliability of the trial result and lead to a miscarriage of justice: B. (G.D.), at para. 34.

[50] An accused is denied a right to choose whether to testify when counsel provides advice that is so wanting as to preclude the accused from making a meaningful decision about testifying. However, as recently expressed by Karakatsanis J. in White (2022), the accused must, in most cases, demonstrate more than the loss of choice; they must also show subjective prejudice: White (2022), at paras. 7-8.

[51] Once the facts have been established, the analysis proceeds to a consideration of the third element, the prejudice component, rather than the performance element. If there is no finding of prejudice, it is undesirable to address element two, the performance component.

[52] The prejudice component engages a determination of whether a miscarriage of justice has occurred either because of some trial unfairness in the proceedings, a compromise of the reliability of the verdict, or some combination of both consequences: Girn, at para. 92. Determining whether trial counsel’s assistance resulted in prejudice is an intensely factual enquiry: R. v. Belcourt, 2020 SKCA 73, 389 C.C.C. (3d) 303, at para. 76; Sararas, at para. 46.

[53] In this appeal, the appellant relies on both the reliability of the verdict and the trial fairness branches in support of the ineffectiveness of counsel argument. This court’s decision in R. v. Davies, 2008 ONCA 209, 234 O.A.C. 291, suggests that courts may consider both branches of the prejudice component simultaneously.

[54] If a compromise of the verdict’s reliability is in issue, appellants must show that there is a reasonable probability that the result of the proceeding would have been different had they received effective assistance: Joanisse, at p. 64; Sararas, at para. 44; see also Fiorilli, at para. 59. The ineffective assistance must go to one of the central issues at trial: Sararas, at para. 47. Examples include counsel’s failure to cross-examine a Crown witness (Joanisse, at p. 64); counsel’s failure to cross-examine on prior inconsistent statements (R. v. M.B., 2009 ONCA 524, 68 C.R. (6th) 55, at para. 67); and counsel’s failure to prepare the accused for testifying (R. v. K.K.M., 2020 ONCA 736, at para. 62.)

[55] The trial fairness branch was described in paras. 55 and 56 of Fiorilli by Paciocco J.A.:

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.

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.

[56] This last paragraph should be read in light of White (2022). Although the failure to permit an accused to make those decisions or to receive effective advice on the matter may still raise questions of trial fairness, according to White (2022), in most cases, loss of choice is insufficient. Subjective prejudice must also be established. In White (2022), Karakatsanis J. also explained the ground of appearance of unfairness stating that the standard for establishing a miscarriage of justice on that basis is high: “The defect must be ‘so serious that it shakes public confidence in the administration of justice’”.

. R. v. Ally

In R. v. Ally (Ont CA, 2022) the Court of Appeal considered an issue of ineffective assistance of counsel:

(b) General principles relating to a claim of ineffective assistance of counsel

[189] The general principles relating to an ineffective assistance of counsel claim were recently reviewed by this court in R. v. Sararas, 2022 ONCA 58. The following summary is derived largely from paras. 41 to 49 of that decision.

[190] In order to succeed on a claim of ineffective assistance of counsel, an appellant must establish three elements. First, the appellant must prove the contested facts underpinning his or her allegation on a balance of probabilities (the “factual component”). Second, the appellant must demonstrate that trial counsel's acts or omissions amounted to incompetence (the “performance component”). Third, the appellant must show that trial counsel's ineffective performance led to a prejudice in the form of a miscarriage of justice (the “prejudice component”): R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 203 O.A.C. 56 (C.A.), at para. 119.

[191] Appellate courts measure trial counsel’s competence against a standard of reasonableness. In light of the wide range of options open to counsel, reviewing courts presume trial counsel to have acted competently and review counsel’s assistance deferentially without the distortion of hindsight: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 61, leave to appeal refused, [1996] S.C.C.A. No. 347. As Doherty J.A. explained in Archer, at para. 119, “[m]any decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction.”

[192] Where, as here, the reliability of the verdict is at issue, the appellant must demonstrate a reasonable probability that the result of the proceeding would have been different had the appellant received effective assistance of counsel: Joanisse at p. 64, citing Strickland v. Washington, 104 S. Ct. 2052 (1984) at p. 2068. A reasonable probability, lying somewhere between a mere possibility and a likelihood, satisfies the reviewing court that the verdict at issue cannot be taken as a reliable assessment of the appellant's culpability: Joanisse, at p. 64.

[193] In order to show that a verdict is unreliable, the ineffective assistance needs to go to one or more of the central issues at trial. Even severe instances of incompetence going to collateral facts will not necessarily undermine the court's confidence in the result below.

[194] In the context of a claim concerning the decision to call a witness, the comments set out below from paras. 94-95 of R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 (Ont. C.A.), leave to appeal refused, [1997] S.C.C.A. No. 248, may be useful. That case involved an allegation of incompetence arising from failure to interview and subpoena defence witnesses:

Proper trial preparation ordinarily includes speaking to potential witnesses. But failing to do so does not automatically warrant a finding of incompetence ...

The court must consider the factual context including what information defence counsel had about the witnesses, about their likely testimony and about how that testimony would likely assist or harm the defence. [Emphasis added; citations omitted.]

[195] Once the factual component has been established, the ineffectiveness analysis should normally continue with the prejudice component. If the prejudice component cannot be met, it is not necessary to consider the performance component: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29.

. R. v. Sararas

In R. v. Sararas (Ont CA, 2021) the Court of Appeal allowed an 'ineffective assistance of counsel' criminal appeal:

[41] It is well-established that a represented accused is entitled to receive effective assistance. This right flows, in part, from ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R 520, at para. 24. To succeed on the ground of ineffective assistance of counsel, the appellant must show that trial counsel’s assistance was so ineffective that the appellant’s conviction is the product of a miscarriage of justice: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 57, leave to appeal refused, [1996] S.C.C.A. No. 347. Counsel’s conduct can result in a miscarriage of justice either by rendering the trial unfair, referred to as the procedural fairness branch, or by rendering the verdict unreliable, referred to as the unreliable verdict branch: R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 54.

[42] Regardless of the nature of the ineffective assistance or the resulting analytical route, appellants alleging ineffective assistance of counsel must establish three elements. First, they must prove the contested facts underpinning their allegation on a balance of probabilities. Second, they must demonstrate that trial counsel’s acts or omissions amounted to incompetence. Third, they must show that trial counsel’s ineffective performance led to a prejudice in the form of a miscarriage of justice: R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 203 O.A.C. 56 (C.A.), at para. 119.

[43] Appellate courts measure trial counsel’s competence against a standard of reasonableness. The carriage of a defence at trial involves innumerable decisions that no two lawyers will navigate in the same way. In light of the wide range of options open to counsel, reviewing courts presume trial counsel to have acted competently and review counsel’s assistance deferentially without the distortion of hindsight: Joanisse, at p. 61. As Doherty J.A. explained, “[m]any decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction”: Archer, at para. 119.

[44] Where the verdict’s reliability is at issue, appellants must demonstrate that, had they received effective assistance, there is a reasonable probability[2] that the result of the proceeding would have been different: Joanisse at p. 64, citing Strickland v. Washington, 104 S. Ct. 2052 (1984) at p. 2068. A reasonable probability, lying somewhere between a mere possibility and a likelihood, satisfies the reviewing court that the verdict at issue cannot be taken as a reliable assessment of the appellant’s culpability: Joanisse, at p. 64.

[45] The Supreme Court of Canada has opined that the ineffective assistance analysis should normally begin with the prejudice component. “If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow”: G.D.B., at para. 29.

[46] However, notwithstanding the relatively well-settled parameters guiding ineffective assistance claims, determining whether trial counsel’s assistance resulted in a prejudice is an intensely factual enquiry: R. v. Belcourt, 2020 SKCA 73, 389 C.C.C. (3d) 303, at para. 76.

[47] In order to show that a verdict is unreliable, the ineffective assistance needs to go to one or more of the central issues at trial. Even severe instances of incompetence going to collateral facts will not necessarily undermine the court’s confidence in the result below.

[48] By way of example, R. v. M.B., 2009 ONCA 524, 251 O.A.C. 81, is a case where the ineffective assistance undermined the confidence in the verdict. In that case, the central issue was credibility. The court found that trial counsel’s incompetence bolstered the complainant’s credibility while reducing that of the appellant. Had trial counsel acted competently, the complainant would have been cross-examined on prior inconsistent statements. This could have marred her credibility on which the appellant’s conviction depended. However, in R. v. Aulakh, 2012 BCCA 340, 205 C.C.C. (3d) 315, the court determined that the appellant had not shown a miscarriage of justice. The alleged ineffective assistance was trial counsel’s failure to argue that another individual had the opportunity to sexually assault the complainant. The court dismissed the appeal, concluding that the evidence alluding to an opportunity for someone else did not nullify the other evidence incriminating the appellant.

[49] Consequently, the impact of ineffective assistance on the reliability of the verdict depends on its severity and its proximity to the issue or issues at the root of a conviction. The appellant will not establish a miscarriage of justice unless they can inject doubt into the facts supporting the verdict. They must do so through probative evidence of sufficient persuasive weight to dislodge a verdict’s foundation. Put simply, the ineffective assistance of trial counsel will not disclose a reasonable probability that the result at trial would have been different unless the ineffective assistance threatens a pillar supporting that result.