|
Appeal-Judicial Review - Ineffective Assistance of Counsel (3). R. v. Benhsaien
In R. v. Benhsaien (Ont CA, 2023) the Court of Appeal considers an appeal argument of 'ineffective assistance of counsel' where the defendant was aided by amicus:[6] Lastly, there is no merit to the appellant’s claim of ineffective assistance of counsel. It is important to note that the appellant was not represented by counsel; amicus was appointed to assist the court by ensuring that all relevant information was before the court and that all relevant arguments were made. In any event, amicus ably examined all of the Crown’s witnesses and brought to the jury’s attention the inconsistencies in their description of the assailant. . R. v. J.B.
In R. v. J.B. (Ont CA, 2023) the Court of Appeal considered the appeal ground of 'ineffective assistance of counsel', here in a bail pending appeal review [CCC 680] context:[16] Allegations of ineffective assistance of counsel are notoriously difficult to make out. This is not to say it is impossible to do so, but it is to say that there exists a strong presumption of competence, such that an evidentiary foundation is required to set it aside. While a bail application is not the time to argue the matter or advance a full evidentiary record, the fact remains that the dangers associated with such claims are operative at bail hearings just as much as they are on appeal and that, therefore, the presumption of competence operates on an equal footing. Such dangers rest on the fact that, following a conviction, it is all too easy to get into a blame game and make unfounded allegations about one’s lawyer: R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 142. This is why the law insists upon a presumption of competence and an evidentiary record to set that presumption aside.
[17] There is a wide range of reasonable professional assistance and the applicant for bail must present something more than bald allegations of incompetence to rebut the presumption that a lawyer has acted within that reasonable range. In my view, the presumption of competence is a material consideration on a bail application when determining the strength of the ground pertaining to the alleged ineffective assistance: R. v. C.M., 2023 ONCA 700, at para. 12. While evidence from trial counsel is not necessarily required, particularly at the bail stage, a credible evidentiary foundation is required. All that the bail judge was saying here is that there is no credible evidentiary foundation at this stage to lend support to the claim of ineffective assistance. . R. v. C.M
In R. v. C.M (Ont CA, 2023) the Court of Appeal considers a defence of ineffective assistance of counsel, here in a bail pending appeal context where merits of the appeal are considered [ie. "not frivolous": CCC s.679(3)(a)]:[9] ... An ineffective assistance of counsel appeal cannot succeed, as a matter of law, unless the absence of such advice has caused a miscarriage of justice: R. v. White, 2022 SCC 7, 467 D.L.R. (4th) 23, at paras. 5-6. ...
....
[12] To succeed with this kind of appeal, an appellant must overcome a strong presumption of competence: R. v. Archer, (2005) 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 140. The record must be credible enough to do so. This requirement makes appeals of this kind difficult, and suitably so. Appellate courts strike a cautious tone when considering claims about the inadequacy of advice about testifying because of the motivation those who are convicted could have to fabricate such allegations: R. v. Kaczmarek, 2021 ONCA 771, 407 C.C.C. (3d) 34 at para. 77. ... . R. v. Senatus
In R. v. Senatus (Ont CA, 2023) the Court of Appeal considered the test for ineffective assistance of counsel:[6] In order to succeed on a claim of ineffective assistance of counsel, the appellant must demonstrate that trial counsel’s assistance was so ineffective that the conviction was the result 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 trial 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. Regardless of whether the appellant relies on the trial fairness branch or the unreliable verdict branch, in order to succeed on a claim of ineffective assistance of counsel, the appellant must establish the three following elements:a) The material facts underlying the allegation of ineffective assistance of counsel on a balance of probabilities.
b) That trial counsel’s acts or omissions amounted to incompetence; and
c) Trial counsel’s ineffective representation 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 paras. 119-120. . R v. Ilunga
In R v. Ilunga (Ont CA, 2023) the Court of Appeal considered the appeal ground or 'ineffective assistance of counsel':[37] This ground of appeal falls to be evaluated within the well-established framework for claims of ineffective assistance of counsel, which was summarized by this court in R. v. Chica, 2016 ONCA 252, 348 O.A.C. 12, at para. 7:The appellant faces a high hurdle in attempting to demonstrate ineffective assistance of trial counsel. For an appeal to succeed on this ground, the appellant must establish the following: i) the material facts underlying the allegation, on a balance of probabilities; ii) that counsel’s acts or omissions constituted incompetence, measured on a reasonableness standard and in light of a strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance (the “performance component”); and iii) that counsel’s ineffective representation caused a miscarriage of justice by resulting in procedural unfairness or undermining the reliability of the verdict (the “prejudice component”). [Citations omitted.] [38] The general procedure for considering a claim of ineffective assistance of counsel is for the court to first assess the prejudice component. If the claim fails on this ground, it is unnecessary to assess the adequacy of trial counsel’s performance: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29; R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 121. However, some cases have departed from this sequence: see, for example, R. v. K.K.M., 2020 ONCA 736.
....
[40] While counsel must provide advice about whether a client should testify, the ultimate decision to testify must be made by the client: R. v. Cubillan, 2018 ONCA 811, 143 O.R. (3d) 376, at para. 14.
....
[60] Notwithstanding that conclusion, it is worth recalling for the criminal defence bar the advice given numerous times by this court about the need to adhere to the best practice of obtaining written instructions from a client about the decision to testify. As Trotter J.A. wrote in R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 76-78:In R. v. W.E.B., 2012 ONCA 776, 366 D.L.R. (4th) 690, aff’d 2014 SCC 2, [2014] 1 S.C.R. 34, this court recognized that the failure to obtain written instructions is a question of professional prudence, not incompetence, but noted that the failure to do so is “ill‑advised and contrary to counsel’s best interests”: at para. 10.
The lawyer who fails to obtain written instructions risks exposure to unfounded allegations of unprofessionalism. And although not indicative of ineffectiveness itself, the failure to obtain instructions may undercut trial counsel’s attempts to defend against claims of ineffectiveness.
The failure to obtain written instructions also makes it more difficult for an appellate court to adjudicate claims such as the one advanced on this appeal. Written instructions may resolve competing claims on appeal. [Citations omitted.] ....
[62] An accused is denied his right to choose whether to testify not only when counsel actually makes the decision, but also when counsel provides no advice or advice that is so wanting as to preclude the accused from making a meaningful decision about testifying: K.K.M., at para. 91; Trought, at para. 50. Advice to an accused about whether to testify should include a review of the advantages and disadvantages of testifying, using language the accused understands: R. v. D.A., 2020 ONCA 738, 396 C.C.C. (3d) 151, at para. 33. The form and content of such a review will vary from case to case: in some cases, a brief, skeletal discussion may suffice; in others, a more lengthy, detailed review will be required: D.A., at para. 33.
....
[76] As was stated by this court in K.K.M., at para. 66, “For the purposes of determining an ineffective assistance of counsel claim, the question for this court is not what should trial counsel have said or done, but rather was what trial counsel said or did reasonable in the circumstances?” I shall therefore assess the appellant’s allegations in the context of whether what trial counsel said or did was reasonable in the circumstances. . R. v. Blake
In R. v. Blake (Ont CA, 2023) the Court of Appeal considered (and allowed) an appeal grounded on the two 'prejudice' branches of the doctrine of ineffective assistance of counsel:[2] The only grounds of appeal raised by the appellant involve allegations of ineffective assistance of trial counsel. The ineffective assistance of counsel claims are raised under both the unreliable verdict and the procedural fairness branches of the prejudice analysis. ...
...
[6] The parties agree on the legal analysis applicable to allegations of ineffective assistance of counsel. To succeed on a claim of ineffective assistance of counsel, an appellant must demonstrate three things. First, an appellant must establish, on a balance of probabilities, the facts on which the ineffective assistance claims are grounded. Second, an appellant must show that trial counsel’s representation was ineffective, in that it fell outside the “wide range of reasonable professional assistance” (the performance component). Third, an appellant must show that “the ineffective representation resulted in a miscarriage of justice, either by rendering the trial unfair or the verdict unreliable” (the prejudice component): R. v. K.K.M., 2020 ONCA 736, at paras. 55, 63-66; R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 62; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. 582, at paras. 47-59; R. v. G.D.B., 2000 SCC 22 (CanLII), [2000] 1 S.C.R. 520, at paras. 25-29. . Deokaran v. Law Society of Ontario
In Deokaran v. Law Society of Ontario (Div Court, 2023) the Divisional Court considered ineffective assistance of counsel, here in an administrative context:[27] The Appeal Division panel identified the correct legal test for ineffective assistance of counsel, at para. 69:Three components or preconditions are required to establish a claim of ineffective assistance by counsel:
1. The underlying facts on which the claim of incompetence is based must be established on a balance of probabilities (the factual component);
2. Incompetent representation must be established (the performance component).
3. The incompetent representation caused a miscarriage of justice (the prejudice component).
See: R. v. G.D.B., 2000 SCC 22, [2000] 1 SCR 520, at para. 26; Gligorevic v. McMaster, 2012 ONCA 115, 109 OR (3d) 321, at para. 66. . Caledon (Town) v. Darzi Holdings Ltd.
In Caledon (Town) v. Darzi Holdings Ltd. (Ont CA, 2022) the Court of Appeal considered practice matters and intervenor status of former counsel when facing a civil claim for ineffective assistance of counsel:[22] The well-established practice of this court on criminal appeals in which ineffective assistance of counsel is advanced as a ground of appeal is that responding Crown counsel adduces the evidence responding to the appellant’s allegations. Typically, Crown counsel will file an affidavit from the former counsel that responds to the allegations of ineffective assistance of counsel. Either party may file the transcript of any cross-examination on that affidavit. This reflects the principle that the preparation of the materials for a motion for fresh evidence is controlled by the parties to the appeal.
[23] The same principle should apply in this civil appeal. Consequently, it will be for the Town’s counsel to file any affidavit from Former Counsel and file any necessary responding motion record regarding the fresh evidence.
[24] However, given the novelty of the appellants’ attempt to advance ineffective assistance of counsel as a ground of appeal and the obvious reputational interest of Former Counsel in the motion for fresh evidence, I grant Former Counsel leave to intervene as an added party on the appeal pursuant to r. 13.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, but with his rights limited as follows:(i) Former Counsel may file a responding factum on the motion to adduce fresh evidence of no more than 10 pages, limited to the issue of whether ineffective assistance of counsel exists as a ground of appeal in civil proceedings in this province;
(ii) That factum shall be delivered on or before Friday, September 23, 2022, but following the appellants’ delivery of their formal fresh evidence motion record, with supplementary factum; and
(iii) Whether Former Counsel may make submissions at the hearing of the motion for fresh evidence is a matter to be decided by the panel hearing that motion and the appeal. . R. v. Aziga
In R. v. Aziga (Ont CA, 2023) the Court of Appeal set out the criteria for ineffective assistance of counsel:E. DID A MISCARRIAGE OF JUSTICE OCCUR BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL?
[68] I would deny Mr. Aziga’s ineffective assistance of counsel appeal. To succeed on this ground of appeal, an appellant must first establish, on the balance of probabilities, the facts upon which the claim is grounded (the “factual component”): R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 49; R. v. Girn, 2019 ONCA 202, 145 O.R (3d) 420, at para. 92; and R. v. K.K.M., 2020 ONCA 736, at para. 55. An ineffective assistance of counsel appeal will succeed if, based on the proven facts, the appellant: (1) establishes that trial counsel performed incompetently by rebutting the strong presumption that trial counsel’s acts or omissions fall within the wide range of reasonable professional assistance or reasonable professional judgment, (the “performance component”), and (2) establishes that this incompetence caused a miscarriage of justice, including through procedural unfairness or by compromising the reliability of the verdict (the “prejudice component”). It is customary to analyse the prejudice component before addressing the performance component: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 28-29. . R. v. McDonald
In R. v. McDonald (Ont CA, 2022) the Court of Appeal considered at length - and granted (which is rare) - an ineffective assistance of counsel ground of appeal:B) Whether the appellant received ineffective assistance from his trial counsel
[23] The appellant bears the burden of establishing, first, the facts underlying the allegation; second, whether the facts, as found, establish that counsel provided ineffective assistance; and third, whether that assistance led to a miscarriage of justice: R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91.
Facts underlying the claim of ineffective assistance of counsel
[24] Very few facts are in dispute. As mentioned, trial counsel does not recall, and her file notes do not reflect, that she spoke to the appellant about settlement privilege or the waiver of the right to silence. Further, trial counsel confirms that at the Superior Court judicial pretrial she conceded the admissibility of the appellant’s initial statement, on his behalf but without his instructions, and never turned her mind to the correctness of the Crown’s position on privilege. She further acknowledges that, in preparation for trial, she did not “specifically [talk] about cross-examination on [the] statement” with the appellant.
[25] The evidence of the appellant and trial counsel do diverge at various points, including whether trial counsel presented the preparation of a statement as a choice. Trial counsel maintains the final decision was the appellant’s. The appellant says trial counsel told him, in no uncertain terms, that he needed to prepare a statement to aid her resolution discussions with the Crown. He was a young, relatively unsophisticated defendant, with minimal experience with the legal system. As such, and in light of the admission by trial counsel that she conceded the admissibility of the initial statement without instructions, any choice the appellant might have had was unencumbered by any legal advice and illusory.
[26] Moreover, trial counsel not only instructed the appellant to prepare the initial statement before he reviewed the Crown’s disclosure, at no point did she compare its contents with the disclosure, once it was received. The appellant’s evidence, which I prefer, is that counsel did not, before trial, advise him that he could be cross-examined on his statement, and only did so just before he took the stand. While trial counsel maintains otherwise, no materials in her trial file mention any such advice. I note also that the last-minute caution counsel did provide was only in respect of the second statement, and not the first, which is what the Crown used.
Do the facts support a finding that trial counsel’s assistance was incompetent?
[27] I agree with the appellant that his trial counsel’s representation fell well below the standard of a reasonable professional. She either did not appreciate – or did not want to take the time to investigate and inform herself about – the protection settlement privilege might afford the appellant.
[28] Perhaps more importantly, she made fundamental decisions without instructions. It was essential that the appellant understand that he enjoyed the right to silence and that he did not have to provide any information to the Crown. The appellant did not (and could not reasonably have been expected to) understand this, and trial counsel took no steps to ensure he did.
Did the appellant suffer a miscarriage of justice?
[29] The appellant submits that there are two clear instances of prejudice that arose from the ineffective assistance from his counsel. First, counsel’s failure to discuss with him the applicability of settlement privilege, waiving his right to silence, and his exposure to cross-examination; and second, her concession at the Superior Court judicial pretrial that the appellant’s statement was admissible.
[30] The respondent argues that any incompetence did not render the trial unfair, and that the appellant has not established a reasonable probability that the verdict would have been different absent counsel’s incompetence. Crown counsel points to the trial judge’s findings that the appellant’s evidence was self-serving and internally inconsistent, which were made without reference to his cross-examination on the statement.
[31] A miscarriage of justice can be the product of either trial unfairness or an unreliable result. Amongst other things, trial unfairness arises when counsel “[makes] certain decisions that should have been made by the accused person”. This typically relates to the core elements of a proceeding such as whether to plead guilty or not guilty, waiving the right to a jury trial, or whether to testify: R. v. Stark, 2017 ONCA 148; 347 C.C.C. (3d) 73, at paras. 16 and 17; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 55-56. An accused must show more than simply the denial of a choice; they must also demonstrate a “reasonable possibility” they would have acted differently: R. v. White, 2022 SCC 7, 411 C.C.C. (3d) 419; R. v. McDonald, 2022 ONCA 574, at paras. 55-56. However, on this branch there is no need to establish an unreliable result: Fiorilli, at para. 57. As Doherty J.A. wrote in R. v. Joanisse, (1995) 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347, at p. 62, “[a] reliable verdict may still be the product of a miscarriage of justice if the process through which that verdict was reached was unfair”. Conversely, the “unreliable result” branch requires that an appellant establish a “reasonable probability that, but for counsel’s unprofessional errors, the result would have been different”: Joanisse, at p. 64, citing Strickland v. Washington, (1984) 466 U.S. 668, at p. 698.
[32] I am of the view that counsel’s ineffective assistance led to a miscarriage of justice on both branches.
[33] To start, there can be no question that trial counsel unilaterally waived the appellant’s right to silence, and that the waiver led to the Crown having available the appellant’s statement, which better equipped its counsel to cross-examine the appellant. Put simply, the mere fact trial counsel did this, which impacted two core elements of the proceeding – i.e., waiving the right to silence by preparing and disclosing the statement, and the appellant making the decision to testify without understanding that the statement could be used to impeach him – is sufficient to allow the appeal.
[34] The right to silence is fundamental and intrinsically linked to the presumption of innocence, the right to make full answer and defence, and the right to a fair trial. It has been described as the “single most important organizing principle in criminal law”: R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, at p. 577. As the Supreme Court has stated, “[I]t is up to the state, with its greater resources, to investigate and prove its own case, and … the individual should not be conscripted into helping the state fulfil this task”: P. (M.B.), at p. 579. Trial counsel did precisely that: she conscripted the appellant into assisting in his own prosecution. She did this on the appellant’s behalf, but unbeknownst to him. In doing so, she deprived him of a fair trial.
[35] The bottom line is this. Trial counsel made decisions that had to be made by her client. Waiving the right to silence, and making an informed decision about whether to testify or not, were for the appellant to decide, and no one else. It is clear that there is at least a reasonable possibility the appellant, if given a real choice, would have taken a different course. Here, counsel’s incompetence was so pervasive, and her unilateral decisions on behalf of the appellant so contrary to any notion of trial fairness, that appellate intervention is necessary. The appellant’s trial was in fact, and in appearance, unfair.
[36] As for the reliability of the verdict, consider this portion of the Crown’s closing address:First, in the Crown’s submission, [the accused] painted himself in an absurdly good light, almost without flaw. His testimony, in the Crown’s submission, lacked insight or honesty and struck the Crown as self-serving. Where [the complainant] was unafraid to answer questions honestly, even if they cast her in a negative light, such as with respect to her drug use, [the accused] was unwilling to be so upfront. Every problem in the relationship was because of [the complainant]. And all he ever did was help her, pay for her, take her to the doctor. The implication really being that he’s just too nice a guy to have done this.
Second, and related, in the Crown’s submission, [the accused] was evasive and defensive under cross-examination. His explanation for why his statement differed from his testimony in several respects did not strike [me] as honest. The Crown also submits that his testimony evolved as it went on. He said that he recalled things spontaneously, but in some cases these things came up after a more direct question or even after a break in court. In the Crown’s submission, [the accused’s] testimony did not present as an honest and forthright recall but, rather, a carefully crafted story. [37] The trial judge, while not specifically citing the 2017 statement, accepted the Crown’s submission and rejected the appellant’s evidence altogether. The Crown argues this conclusion is reliable, notwithstanding trial counsel’s ineffective assistance, because the trial judge was entitled to believe the complainant over the appellant, and because of internal inconsistences in the appellant’s trial testimony. I disagree. The above passage from the Crown’s submissions places the nature, and impact, of trial counsel’s conduct into sharp focus. It encapsulates perfectly the Crown’s position, which was the appellant concocted his entire story. This makes even the peripheral aspects of the Crown’s inquiries about the 2017 statement more important than they otherwise might have been, and diminishes the Crown’s argument on appeal. In other words, the appellant was subjected to cross-examination that went exclusively to the critical issue at trial (his credibility), which was in large measure the fruits of an uninformed waiver of his right to silence.
[38] While it is a relatively high burden to establish a reasonable probability that the result would have been different, we must remember that a ‘reasonable probability’, in this context at least, means a probability sufficient to undermine confidence in the outcome: Strickland, at p. 698. This of course is more than a mere possibility, but far short of certainty. In Joanisse, Doherty J.A. described it as “less than a likelihood”. That being the case, the question to ask is not whether it is probable that the trier of fact would have believed the appellant but for his trial counsel’s conduct but, rather, whether his evidence, without the disclosure of the statement, could have led to its acceptance or given rise to a reasonable doubt.
[39] For these reasons, I accept that the appellant’s trial was unfair, that the verdict is unreliable, and that the ineffective assistance of the appellant’s trial counsel gave rise to a miscarriage of justice.
|
