Simon's Megalomaniacal Legal Resources

Representation - Lawyers - Ineffective Assistance of Counsel

. 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.

. R. v. Hartling

In R. v. Hartling (Ont CA, 2020) the Court of Appeal states the test for ineffective assistance of counsel, here in a criminal case:

[72] An ineffective assistance of counsel claim has two components: performance and prejudice. The appellant must show that (i) trial counsel’s acts or omissions amounted to incompetence, and (ii) a miscarriage of justice occurred: R. v. Prebtani, 2008 ONCA 735, 243 O.A.C. 207, at paras. 3-4.

[73] To establish a claim of ineffective assistance of counsel, the appellant must establish:

1. The facts that underpin the claim;

2. That counsel’s representation was inadequate; and,

3. That counsel’s inadequate representation resulted in a miscarriage of justice.

[74] This test presents a high bar that is not easily met: R. v. Cherrington, 2018 ONCA 653, at para. 25. As Watt J.A. explained, once the first step of the test is established, the analysis turns to the third step, or the prejudice component, of whether there was a miscarriage of justice. If there was no prejudice, then it is “undesirable” for the court to proceed to the second step, or the performance component, of the test: R. v. Girn, 2019 ONCA 202, 373 C.C.C. (3d) 139, at para. 92. The analysis under the performance component “proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: R. v. G.B.D., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27. The presumption of competence “is tested against a standard of reasonableness, and accords no place to hindsight”: Cherrington, at para. 26; see also G.B.D., at para. 27.