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Criminal - Appeals - Ineffective Assistance of Counsel (2). R. v. P.Q.
In R. v. P.Q. (Ont CA, 2026) the Ontario Court of Appeal considers the law of IAC defences:[31] The framework for establishing IAC claims is not disputed. As outlined by my colleague Paciocco J.A. in R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, a three-part test is used to determine IAC appeals, with the appellant bearing the onus of proof with respect to each part.
[32] 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 incompetence representation by trial counsel (the prejudice component). ....
[50] As Paciocco J.A. noted in Fiorilli at para. 54, to satisfy the prejudice component, “the appellant must show the ineffective representation resulted in a miscarriage of justice, either by rendering the trial unfair or the verdict unreliable”.
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[57] In sum, I do not accept that had trial counsel called G.F. there is a reasonable probability that the result would have been different or that the failure to call G.F. was a decision that did not fall “within the wide range of reasonable professional assistance”: Fiorilli, at para. 52.
[58] The second claim that trial counsel was incompetent by telling the appellant that his evidence would not be helpful must also fail. Trial counsel’s advice or conduct relating to whether he should testify was not outside the range of reasonable professional judgment.
[59] At the outset, this does not appear to be a situation where the appellant is asserting that trial counsel prevented him from testifying. Rather, his complaint is that the trial counsel was not competent by telling him his evidence would not be helpful. A similar claim was made in Fiorilli. As my colleague Paciocco J.A. noted in that case, it is doubtful whether an IAC ground of appeal can be based on an unreasonable recommendation to a client not to testify because the decision of whether to testify is ultimately the client’s decision to make. As my colleague points out, “if trial counsel has reasonably provided the appellant with the information required to make their own informed decision” it is not at all clear that “the appellant can later challenge the competence of a recommendation they accepted”: Fiorilli, at para. 88.
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[64] Trial counsel was clearly alive to the challenges that would have arisen from the appellant’s testimony. While the appellant could have testified and provided direct evidence as to whether he took all reasonable steps to ascertain the complainant’s age, there was already independent evidence that trial counsel could use to advance this defence. Again, hindsight plays no role in this assessment, and as with the first claim, there is a highly deferential standard that applies when assessing the performance component and “the reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: Fiorilli, at para. 53. In my view, trial counsel’s view that the appellant’s evidence would not help was reasonable and her decision to work with the evidence in her possession related to the text messages and the appellant’s inquiries was sound. In the end the appellant has not established that this advice did not fall within the wide range of professional assistance: Fiorilli, at para. 91. Accordingly, I would dismiss this ground of appeal. . R. v. D.V.
In R. v. D.V. (Ont CA, 2026) the Ontario Court of Appeal considered 'ineffective assistance of counsel' doctrine, here in a criminal defendant appellate context:The Test for IAC Claims
[13] The well-established test that this court applies to claims of ineffective assistance of counsel (“IAC claims”) requires an appellant to establish the following on a balance of probabilities (R. v. Fiorilli, 2021 ONCA 461, 156 O.R. 582, at para. 48):
(1) The facts on which the claim is grounded (the factual component);
(2) The incompetence of representation provided by trial counsel (the performance component); and
(3) A miscarriage of justice as a result of the incompetent representation (the prejudice component).
[14] After an appellant establishes the material facts of the IAC claim, the court will move to the prejudice component. If the appellant cannot establish prejudice, there is no need to consider counsel’s performance. As the Supreme Court observed in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29, “[W]here it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis.”
[15] The prejudice component requires an appellant to demonstrate that the alleged ineffective representation resulted in a miscarriage of justice, either by rendering the trial unfair or by rendering the verdict unreliable: R. v. K.K.M., 2020 ONCA 736, at para. 55. In this appeal, the appellant submits that the verdict is unreliable. To satisfy the unreliable verdict branch, the appellant must establish a reasonable probability that the result would have been different had trial counsel performed in a competent fashion: Fiorilli, at para. 59. A reasonable probability in this context means “more than a mere possibility, but less than a likelihood”: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal refused, [1996] S.C.C.A. No. 347, at p. 66. The reasonable probability threshold will be met “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. Al-Shammari, 2016 ONCA 614, at para. 75.
[16] The performance component measures counsel’s performance against a reasonableness standard: Joanisse, at p. 41. The appellant must establish that the allegedly incompetent acts or omissions of counsel were not the result of reasonable professional judgment: G.D.B., at para. 27. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The assessment of counsel’s performance “is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment”: R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60, at para. 119.
[17] The appellant alleges that two aspects of trial counsel’s conduct resulted in a miscarriage of justice: (1) trial counsel did not effectively cross-examine L.V.; and (2) trial counsel did not advocate properly for the appellant in his closing address.
[18] As is common in appeals involving IAC claims, the appellant relies on fresh evidence in support of his appeal. His fresh evidence application includes evidence from trial counsel and the appellant in the form of affidavits and cross-examinations on those affidavits. L.V.’s police statements, taken on October 21, 2019 and October 24, 2019, were also introduced as part of the fresh evidence. The parties both agree that the fresh evidence is admissible for the purposes of assessing the IAC claim. I agree and would admit the fresh evidence. I will refer to the fresh evidence when I assess the arguments below. . R. v. S.W.
In R. v. S.W. (Ont CA, 2026) the Ontario Court of Appeal considered the criminal appeal ground of 'ineffective assistance of counsel':[55] To succeed in his IAC claim, S.W. must establish all three of the following:1. The factual component: the facts material to the IAC claim, proven on a balance of probabilities;
2. The performance component: the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and
3. The prejudice component: the ineffective assistance resulted in a miscarriage of justice: R. v. Kuang, 2026 ONCA 72, 457 C.C.C. (3d) 277, at para. 22; R. v. G.D.B. 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 25-29; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. 582, at para. 48. [56] This court has frequently observed that an appellate court must exercise caution in assessing ineffective assistance of counsel claims. As this court said in R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), 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. It must also be recognized that the confidential nature of the relationship between a lawyer and his client can make it easy for the client to make all kinds of unfounded allegations against his former lawyer. . R. v. M.A.
In R. v. M.A. (Ont CA, 2026) the Ontario Court of Appeal considered the possible impact of delay in raising an IAC fresh law defence (that is, raised as an amended appeal):[15] This court has jurisdiction to preclude an appellant from belatedly adding or pursuing an IAC Claim in an existing appeal. In R. v. Zhou (31 March 2021), C66921,[5] MacPherson J.A. precluded an IAC Claim based on a finding that the appellant’s attempt to raise IAC was “a delay tactic” and his decision was upheld by a panel of this court.[6]
[16] In our view, it will be appropriate for the court to prevent an appellant from adding a new ground of appeal long after the appeal was launched where 1) there is no reasonable explanation for the delay in raising the new ground, and 2) allowing it to be added will cause significant further delay to the resolution of the appeal. We find that both of these factors weigh against the appellant’s request to add the New IAC Claim in this case. . R. v. Aubin
In R. v. Aubin (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against convictions of "two counts of arson, contrary to ss. 433(a) and 434 of the Criminal Code, R.S.C. 1985, c. C-46, and unlawfully producing cannabis resin, contrary to s. 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.", here on an 'ineffective assistance of counsel' argument.
The court considers the 'ineffective assistance of counsel' (IAC) doctrine, here in this criminal context:A. Governing Legal Principles
[16] This court has taken a cautious approach to claims based on the alleged incompetence of trial counsel. As Doherty J.A. observed in R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 85 O.A.C. 186 (C.A.), at para. 66, leave to appeal refused, [1996] S.C.C.A. No. 347, such claims can be easily made and “[i]t would be a rare case where, after conviction, some aspect of defence counsel’s performance could not be subjected to legitimate criticism”. Doherty J.A. cautioned that appeals should not devolve into “forensic autopsies of counsel’s performance at trial”, which would not only render convictions ephemeral but would also “discourage vigorous and fearless representation at trial and encourage defensive advocacy aimed more at protecting counsel from subsequent criticism than advancing the cause of his client”: Joanisse, at paras. 66-67. Given these considerations, the appellant’s burden in establishing ineffective representation is not easily discharged and reaching the threshold for appellate intervention is a “high bar”: R. v. Hartling, 2020 ONCA 243, 150 O.R. (3d) 224, at para. 74; R. v. D.M.G., 2011 ONCA 343, 105 O.R. (3d) 481, at para. 101.
[17] Against this backdrop, an appellant who advances a claim of ineffective assistance of counsel is required to establish three things:(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). See R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91.
[18] The proper analytical order is generally component (i), followed by (iii), and then (ii). Once the factual component has been established, the court will first consider the prejudice component, since if this has not been satisfied, there is no reason to subject the performance of counsel to judicial inquiry: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 49. I recognize that this court has applied a modified analytical approach in cases where the primary submission on appeal is that trial fairness has been undermined by the totality of the representation: see R. v. Nnane, 2024 ONCA 609, at para. 11. As will become clear below, I do not find this is such a case, since there is no allegation of pervasive incompetence by trial counsel.
[19] The prejudice component of the test is what is materially at issue in this appeal. This prong examines the impact of counsel’s incompetence on both the appearance of trial fairness and the reliability of the result.
[20] In cases where the claim is that counsel’s performance affected trial fairness without necessarily undermining the reliability of the result, counsel’s incompetence must have been “pervasive” and amount to “conduct which permeates and infects counsel’s entire performance”: Joanisse, at para. 76. Claims under this branch must show a defect which is “‘so serious that it shakes public confidence in the administration of justice’”: R. v. White, 2022 SCC 7, [2022] 1 S.C.R. 64, at para. 9, citing R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 51. The trial counsel’s conduct must have risen to a level such that it “destroys the fairness of the adjudicative process at trial, thereby amounting to a constructive denial of the assistance of counsel”: Fiorilli, at para. 55.
[21] Alternatively, where the claim is that trial counsel’s incompetence affected the reliability of the result, the claim is made out only where the appellant can show that there is a “‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different’”: Joanisse, at para. 79, citing Strickland v. Washington, 104 S. Ct. 2052 (1984), at p. 2068. A reasonable probability “lies somewhere between a mere possibility and a likelihood” and 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”: Joanisse, at para. 80; see also Fiorilli, at para. 59; R. v. S.T., 2024 ONCA 572, at para. 43. The ineffective assistance must affect a central issue at trial. There will not be a miscarriage of justice on the reliability branch unless the appellant “can inject doubt into the facts surrounding the verdict” which is achieved through “probative evidence of sufficient persuasive weight to dislodge a verdict’s foundation”: see R. v. Sararas, 2022 ONCA 58, 160 O.R. (3d) 321, at paras. 44-49. . R. v. E.T.
In R. v. E.T. (Ont CA, 2026) the Ontario Court of Appeal considered a criminal appeal issue of "ineffective assistance of counsel", here styled as a miscarriage of justice:[22] The appellant submits that his trial counsel provided ineffective assistance which resulted in a miscarriage of justice. In support of his IAC claim, he alleges that trial counsel failed to: take notes; adduce evidence crucial to his defence; advise him of his right to elect his mode of trial; adduce sentencing materials relating to pretrial credit, including lockdown and triple-bunking records; correct a miscalculation on pretrial credit; and, properly advise him on the fail to comply charge.
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V. The Relevant Legal Principles
[25] An appellant seeking a new trial on the basis they received ineffective assistance of counsel has the onus to establish three elements: (i) the facts underlying the assertion of ineffective assistance (the “Factual Component”); (ii) that a miscarriage of justice resulted because the ineffective assistance rendered the trial unfair or the verdict unreliable (the “Prejudice Component”); and, if (i) and (ii) are established, (iii) that counsel’s conduct fell below the required standard (the “Performance Component”): R. v. Zock, 2025 ONCA 483, 450 C.C.C. (3d) 459, at paras. 40-41; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 25-29.
[26] Allegations of ineffective assistance must be closely scrutinized: R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 51, leave to appeal refused, [2015] S.C.C.A. No. 261; R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119, 141-42. Where a miscarriage of justice is not established, the competence of counsel is not a question for the appellate courts: G.D.B., at para. 5; Archer, at para. 121.
[27] Performance competence is measured against a reasonableness standard. It is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. The reasonableness analysis must proceed upon a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: Archer, at para. 119, citing G.D.B., at para. 27.
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[46] Having determined that the appellant did not satisfy either the Factual Component or the Prejudice Component of the test for IAC, there is no need for this court to consider the question of trial counsel’s competence: G.D.B., at paras. 5, 29; Archer, at para. 121. . 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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