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Criminal - Appeals - Ineffective Assistance of Counsel (2). R. v. Taylor
In R. v. Taylor (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against the "conviction for the first degree murder of his wife".
Here the court considered the expanding doctrine of 'ineffective assistance of counsel' (which now has a recognized acronym: 'IAC'):[75] To succeed on an IAC claim, the appellant must establish: (1) the facts material to the claim of ineffective assistance, proven on a balance of probabilities (the factual component); (2) the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances (the performance component); and (3) the ineffective representation resulted in a miscarriage of justice (the prejudice component): R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at pp. 56-64, leave to appeal refused, [1996] S.C.C.A. No. 347; R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120; and R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 47-54.
[76] As discussed more fully below, the appellant has not demonstrated that the decisions made by trial counsel fell below the standard expected of counsel in the circumstances. Counsel made tactical choices about how to navigate the mountain of incriminatory evidence that was adduced over the course of this seven-week trial. As this court said in R. v. Hudson, 2020 ONCA 557, at para. 19:Much of what the appellant complains about regarding the actions of his trial counsel relate to matters of trial tactics. Judgment calls relating to trial tactics do not generally constitute incompetence even if, with the benefit of hindsight, a different call might have been better: Joanisse, at paras. 73-74. The appellant has not demonstrated that anything that trial counsel did, or did not do, compromised the fairness of the verdict or resulted in a miscarriage of justice. [77] It is true that different counsel may have made different decisions in the circumstances. But this reality, standing alone, does not equate to incompetence.
[78] Even if it could be said that counsel should have taken a different approach to the impugned evidence, the appellant has failed to satisfy the prejudice component of the test for IAC. The interventions and instructions given by the trial judge prevented a miscarriage of justice from occurring. This is fatal to the appellant’s grounds concerning the impugned evidence and the IAC claim. . R. v. R.G.
In R. v. R.G. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against convictions on "two counts of sexual assault" and sentencing "to two years imprisonment".
Here the court considers the doctrine of 'ineffective assistance of counsel':[22] 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 because it fell 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: R. v. Kuang, 2026 ONCA 72, at para. 22; R. v. M.Z., 2026 ONCA 4, at para. 15; R. v. Zock, 2025 ONCA 483, 450 C.C.C. (3d) 459, at para. 4; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 48; and R. v. K.K.M., 2020 ONCA 736, at para. 55. . R. v. Kuang
In R. v. Kuang (Ont CA, 2026) the Ontario Court of Appeal allowed a defendant's criminal appeal, this brought against convictions for "assault (Criminal Code, R.S.C. 1985, c. C-46, s. 266), assault causing bodily harm (s. 267(b)), break and enter (s. 348(1)(b)), and two counts of threatening to use a weapon (s. 267(a))".
Here the court considers the criminal practice issue of counsel obtaining 'written instructions', and it's frequent bearing on 'ineffective assistance of counsel' claims:d. The Absence of Written Instructions
[36] Allegations of ineffective assistance of counsel focused on the accused person’s election or the decision to testify naturally lead to questions about who actually made these choices (the accused or counsel) and the instructions received by counsel. Experience shows that there will be differing views as to what happened, what was said, and what was understood. Written instructions to trial counsel will often resolve these disputes. In Archer, the court said, at para. 143: “The largest hurdle faced by the appellant in trying to convince the court that the decision to testify was made by trial counsel is the direction signed by the appellant during the trial.” Similarly, see R. v. Lisenco, 2019 ONCA 691, at para. 14.
[37] Challenges emerge when counsel fail to obtain written instructions. The lack of written instructions exposes trial counsel to unfounded allegations and may hamper trial counsel’s ability to defend against claims of ineffectiveness. In R. v. W.E.B., 2012 ONCA 776, 309 C.C.C. (3d) 44, at para. 10, aff’d 2014 SCC 2, [2014] 1 S.C.R. 34, the court said: “We note that trial counsel's failure to obtain the appellant's written instructions regarding his decision not to testify was ill-advised and contrary to counsel's best interests, as the issues raised on this appeal illustrate. That, however, is a question of professional prudence, not incompetence.”
[38] The failure to obtain written instructions also makes it more difficult for appellate courts to adjudicate these types of claims: Trought, at paras. 76-78; Fiorilli, at para. 69; Kaczmarek, at para. 54; R.W., at para. 24; R. v. Ilunga, 2023 ONCA 471, 428 C.C.C. (3d) 271, at para. 60; Zock, at paras. 49-51; and M.Z., at paras. 17-19.
[39] As noted above, there is a strong presumption of competence in favour of trial counsel. However, depending on the circumstances of the case, this presumption may be displaced when trial counsel fails to obtain written instructions: Zock, at para. 51. It is recognized that exigent circumstances may prevent trial counsel from obtaining written instructions in situations when they otherwise should be obtained: R. v. Aziga, 2023 ONCA 12, 164 O.R. (3d) 721, at para. 81. Depending on the circumstances, counsel’s contemporaneous notes of meetings with the client, reporting letters (see, e.g., R. v. Faudar, 2021 ONCA 226, 403 C.C.C. (3d) 43, at para. 82), or email confirmation to the client may be satisfactory substitutes. Similarly, an acknowledgement on the record by the accused person as to the election or the decision to forego testifying (or calling defence evidence) may also assist in resolving competing claims. But sometimes these may be inadequate substitutes for written instructions.
[40] No written instructions were obtained by trial counsel in this case. Trial counsel testified that it has never been his practice to take written instructions from his clients. This is a common refrain of trial counsel in IAC appeals. But this is not a satisfactory explanation, nor is it an excuse; it is merely a description of an ill-advised practice. . R. v. Kuang
In R. v. Kuang (Ont CA, 2026) the Ontario Court of Appeal allowed a defendant's criminal appeal, this brought against convictions for "assault (Criminal Code, R.S.C. 1985, c. C-46, s. 266), assault causing bodily harm (s. 267(b)), break and enter (s. 348(1)(b)), and two counts of threatening to use a weapon (s. 267(a))".
Here the court considers a 'right to silence' issue, here in an 'ineffective assistance of counsel' context:b. The Decision to Testify
[32] The decision whether to testify at trial rests on the same footing as the accused’s election rights. It, too, is a decision reserved for an accused person to make. Counsel cannot usurp or override that choice: Bharwani, at para. 58(3); R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 46-49. As with the election as to the mode of trial, an accused person is entitled to competent legal advice in order to properly make this critical decision. In K.K.M., Doherty J.A. said, at para. 91: “An accused is denied his right to choose whether to testify when counsel actually makes the decision, or when counsel provides no advice or advice that is so wanting, as to preclude the accused from making a meaningful decision about testifying.” See also R. v. Kaczmarek, 2021 ONCA 771, 407 C.C.C. (3d) 34, at paras. 75-76.
c. Prejudice
[33] Establishing these factual components is necessary but not sufficient for a successful IAC claim. The accused must also establish prejudice. As Zarnett J.A. explained in Zock, at para. 45:[A]s White makes clear, it is not enough that the appellant, through ineffective assistance of counsel, was deprived of the important right to elect the mode of trial. A new trial on the basis of ineffective assistance of counsel will only be ordered if the appellant also demonstrates that the loss of the right to elect gave rise to a miscarriage of justice: White, at para. 6. The appellant must establish a reasonable possibility that he would have acted differently if he had received effective assistance from trial counsel; in other words, he must establish a reasonable possibility that he would have elected trial by jury: White, at paras. 6-9. [Emphasis added.] [34] The prejudice requirement applies with equal weight to the right to testify. “The accused must, in most cases, demonstrate more than the loss of choice”: White, at para. 7.
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