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Appeal-Judicial Review - Ineffective Assistance of Counsel (4). Folkes v. College of Nurses of Ontario
In Folkes v. College of Nurses of Ontario (Div Court, 2024) the Divisional Court dismisses a JR against a "decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Nurses of Ontario" that "the applicant complete a specific continuing education or remediation program (“SCERP”) and to appear before the ICRC to be cautioned".
The applicant unsuccessfully argues 'inadequate assistance of counsel', here in an administrative context:[12] Beginning with ineffective assistance of counsel, to succeed in setting aside the ICRC decision the applicant must show: (1) that there are facts that underpin the claim; (2) that counsel’s representation was incompetent; and, (3) that the incompetent representation caused a miscarriage of justice: North American Financial Group Inc. v. Ontario Securities Commission, 2018 ONSC 136 (Div. Ct.), at para. 119. . R. v. Basso
In R. v. Basso (Ont CA, 2024) the Court of Appeal considered the defence of 'ineffective assistance of counsel':[29] In R. v. M.B., 2009 ONCA 524, 68 C.R. (6th) 55, at paras. 8-10, this court held that in order to succeed in a claim of ineffective assistance of counsel at trial, an appellant must establish: (i) the facts on which the claim of incompetence is based; (ii) that the representation provided by trial counsel was incompetent (the performance component of the test); and (iii) that the incompetent representation resulted in a miscarriage of justice (the prejudice component of the test).
[30] As Major J. stated in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-29, in most cases, it is best to begin with an inquiry into the prejudice component of an ineffective assistance of counsel claim, because if the appellant cannot demonstrate prejudice from the alleged ineffective assistance of counsel, it is unnecessary to address the competence of counsel at trial.
[31] In this case, in our view, the appellant has failed to demonstrate prejudice from the alleged ineffective assistance of counsel.
[32] The prejudice component focuses on “the nature and seriousness of counsel’s errors both from the perspective of the reliability of the verdict and the adjudicative fairness of the process leading to the verdict”: M.B., at para. 10, citing R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 62. Prejudice can be established if the appellant can demonstrate a reasonable probability that, but for the alleged incompetence, the outcome of the case would have been different: M.B., at para. 10. ...
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