|
Review (Appeal-JR) - Grounds - Ineffective Assistance of Counsel (4). Veerasingam v. Licence Appeal Tribunal [admin]
In Veerasingam v. Licence Appeal Tribunal (Ont Divisional Ct, 2025) the Divisional Court dismissed an appeal, here from a "decision of the Licence Appeal Tribunal (LAT) ... requir[ing] that the Registrar of the respondent Ontario Motor Vehicle Industry Council (OMVIC) carry out its proposal to refuse the registration of the appellant as a motor vehicle salesperson under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sched. B (MVDA), due to misconduct".
The court considers an ineffective assistance of counsel' issue, here in an administrative context:[22] In the amended notice of appeal, the appellant raised, for the first time, ineffective assistance of counsel. Leaving aside the issue of raising this for the first time on this appeal, the appellant has not met the test to show unfairness on this basis.
[23] As set out in Deokaran v. Law Society of Ontario, 2023 ONSC 1702 (Div. Ct.), at para. 27, citing R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 26, and Gligorevic v. McMaster, 2012 ONCA 115, 109 O.R. (3d) 321, at para. 66: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). . Sabaratnam v. Yohanathan [civil]
In Sabaratnam v. Yohanathan (Ont CA, 2024) the Ontario Court of Appeal commented that in civil cases (as opposed to criminal) allegations of ineffective assistance of counsel are normally brought in an action against that counsel, not as an appeal ground:[8] .... the principles described by this court in OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520, at paras. 44, are applicable in this case. In Oz, this court wrote that allegations of ineffective assistance of counsel at trial in civil matters are properly raised by way of a negligence action by the client against the lawyer. Although there may be some cases in which the nature of the claim gives rise to a public interest that transcends the private interests of the litigants and allows for ineffective assistance of counsel as a ground of appeal, this is clearly not such a case. . Grand River Conservation Authority v. Kentner
In Grand River Conservation Authority v. Kentner (Ont CA, 2024) the Divisional Court dismisses an unusual 'ineffective assistance of counsel' appeal, here involving a paralegal and POA charges:(i) Ineffective Assistance of Counsel
[11] Ineffective assistance has a “performance component” and a “prejudice component”. This ground of appeal will succeed only if the appellant establishes that: (1) counsel’s acts or omissions constituted incompetence (the performance component); and (2) that a miscarriage of justice resulted (the prejudice component): see R. v. White, 2022 SCC 7, 467 D.L.R. (4th) 23, at para. 6, and R. v. D.M.G., 2011 ONCA 343, 105 O.R. (3d) 481, at para. 100. . R. v. Newton
In R. v. Newton (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here argued on 'ineffective assistance of counsel' grounds:The appellant has not established that he received ineffective assistance of trial counsel
[7] The appellant argues that his trial counsel provided ineffective assistance in failing to bring the s. 11(b) application earlier. He submits that trial counsel abandoned the s. 11(b) application without his knowledge or consent.
[8] The appellant must establish, on a balance of probabilities:i) the facts on which the claim is grounded;
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). R v. Cherrington, 2018 ONCA 653, at para. 25. . R. v. Zhou
In R. v. Zhou (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here where the convictions were for "sexual assault and forcible confinement.".
Here the defendant was self-presenting and the issue of 'ineffective assistance of counsel' arose:[20] In the analysis below, I start with the issues raised by amicus followed by some of the additional issues raised by the appellant. However, I do not address the issue of ineffective assistance raised by the appellant because he was specifically prohibited from raising this issue by the order of MacPherson J.A. dated August 5, 2021, which was upheld by a panel of this court on September 1, 2021: R. v. Z., Biao (1 September 2021), M52763 (C66921) (Ont. C.A.). . R. v. Nnane
In R. v. Nnane (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal 'inadequate assistance of counsel' appeal that was both rare in itself, but further so due to it being advanced by a self-presenter (with the assistance of duty counsel):[7] In support of his appeal, Mr. Nnane alleges that the representation trial counsel provided was ineffective because he did not prepare properly to cross-examine Ms. Forbes and he cross-examined her ineffectively. Appellate counsel supported his challenge to the manner in which trial counsel dealt with Ms. Forbes’ evidence by pointing to the inadequacy of the submissions trial counsel made about her evidence in his jury address. Mr. Nnane also argues that trial counsel failed to prepare him for his own testimony and conducted an ineffective examination-in-chief, including by projecting disbelief of what Mr, Nnane was saying. Although he did not cast his grounds of appeal in this general way, it is fair to say that Mr. Nnane was effectively submitting that trial counsel failed to offer him meaningful assistance in defending the charges he faced.
....
[9] In order to overcome the strong presumption of competence and to succeed with an ineffective assistance of counsel appeal, an appellant must: (1) establish on the balance of probabilities the material facts the claim is grounded upon (the “factual component”); (2) demonstrate the incompetence of the representation provided by counsel by showing that it fell below a standard of reasonable professional judgment (the “performance component”); and (3) show that the ineffective assistance caused a miscarriage of justice, either by resulting in an unreliable verdict, or by undermining trial fairness (the “prejudice component”): R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91; R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 49-54; R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 140. In R. v. S.T., 2024 ONCA 572, at para. 43, citing Fiorilli at para. 59, this court recently affirmed that to meet the unreliable verdict branch of the prejudice component “the appellant must ‘establish a reasonable probability that the result would have been different’” (emphasis in original). The trial fairness branch of the prejudice component is measured by “the appearance of the fairness of the trial”: Archer, at para. 120.
[10] As I will explain, I am satisfied that Mr. Nnane has met the factual component by establishing key allegations he is making about the ineffectiveness of the representation he received. I am also persuaded that he has met the prejudice component by showing that the representation he received undermined the appearance of the fairness of his trial, and that the representation he received fell below a standard of reasonable professional judgment, thereby satisfying the performance component of the test. I would allow the appeal, set aside his convictions, and order a new trial.
[11] I recognize that in undertaking an ineffective assistance analysis, an appeal court will generally not comment on the performance component unless the material facts that underpin the claim have been established and the prejudice component has been satisfied: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29; Girn, at para. 92. In this case, the key submission is that the fairness of the trial has been undermined by the totality of the representation. In order to ensure that my analysis is linked to the factual findings I make, it is my view that I can best explain my reasoning by deviating modestly from the usual analytical approach and by examining concurrently whether Mr. Nnane has established each of the factual allegations I have identified, and whether the events he has established amount to ineffective representation. After engaging in that exercise, I will go on to address whether, in all of the circumstances, Mr. Nnane has satisfied the prejudice component, and I will then engage in a more general evaluation of whether he has met the performance component.
....
B. Did the conduct of the defence cause a miscarriage of justice (the “prejudice component”)
[39] I am satisfied, based on the foregoing findings, that Mr. Nnane has met the prejudice component. I would not rest this conclusion on the unreliable verdict branch of the prejudice component. The case the Crown presented against Mr. Nnane was extremely strong, his testimony was problematic, and his defence was weak. I cannot find that there was a reasonable probability the outcome would have been different had he been defended effectively: R. v. S.T., at para. 43; Fiorilli at para. 59.
[40] However, I am persuaded that the fairness of Mr. Nnane’s trial was undermined by the representation he received. When an accused person retains defence counsel, they are entrusting their liberty and their reputation to that lawyer, and they are dependent upon the lawyer to defend the charges they face. As Doherty J.A. recognized in 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 (citations omitted):We place our trust in the adversarial process to determine the truth of criminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by “partisan advocacy on both sides of the case”. Effective representation by counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professional trained in the skills needed during the combat of trial. The skilled advocate can test the case advanced by the prosecution, as well as marshal and advance the case on behalf of the defence. [41] If trial counsel fails to meaningfully support their client’s defence after they have undertaken their representation, they deprive that person of partisan advocacy and therefore of a fair trial. There can be no question, in my view, that trial counsel did not effectively support Mr. Nnane’s defence or provide him with partisan advocacy. As I have found: (1) he failed to confront damning testimony given by Ms. Forbes, a pivotal witness, during cross-examination; (2) he undermined Mr. Nnane’s testimony by not throwing his support behind it and by effectively signalling his disbelief of that testimony; and (3) he gave an ineffective jury address that veritably left Mr. Nnane without the support of his counsel at a crucial point in the trial. I am persuaded that Mr. Nnane did not receive a fair trial.
C. Did The representation provided by Trial counsel Fall below a standard of reasonable professional judgment (the “performance component”)?
[42] It is also obvious, in my view, that the representation provided by trial counsel fell below the standard of reasonable professional judgment. Whatever else it entails, reasonable professional judgment when acting in the defence of criminal charges requires a supportive if not zealous defence, not a half-hearted or dismissive one: see e.g., r. 5.1-1 of the Law Society of Ontario’s Rules of Professional Conduct. I recognize that defence counsel is entitled to determine strategy and is not bound to pose the questions the client demands, or even to present the defence that the client promotes. However, distancing oneself from the defence that is presented or failing to stand with the client in the presentation of that defence is not a tactical choice. It is an abdication of responsibility and a betrayal of a crucial trust. I also recognize that defence lawyers are not required to support testimony they know to be perjured, but there is no suggestion before us that this explains the representation that trial counsel provided. I would find that Mr. Nnane has met the performance component of the ineffective assistance of counsel test.
CONCLUSION
[43] I am persuaded that Mr. Nnane has met his burden of establishing the ineffective assistance of counsel. I would allow the conviction appeal, set aside both fraud convictions, and order a new trial. . R. v. S.T.
In R. v. S.T. (Ont CA, 2024) the Ontario Court of Appeal allows a criminal appeal where 'inadequate assistance of counsel' was an issue:[28] In R. v. Fiorilli, 2021 ONCA 461, at para. 48, Paciocco J.A. explained:A three-part test is used to determine ineffective assistance of counsel appeals, with the appellant bearing the onus of proof and persuasion with respect to each part. The structure of the test was neatly summarized by Watt J.A. in R. v. Girn, [2019 ONCA 202, 145 O.R. (3d) 420], at para. 91: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 incompetent representation by trial counsel (the prejudice component). [Italics in original.] The standard of proof is the balance of probabilities: Fiorilli, at para. 51; R. v. K.K.M., 2020 ONCA 736, at para. 55.
....
(2) The performance component
[31] At this stage of the analysis, “[t]he onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment”: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27. This is a heavy burden, because “[t]he analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”: G.D.B., at para. 27.
....
[43] To establish that his trial counsel’s ineffectiveness resulted in an “unreliable verdict”, the appellant must “establish a reasonable probability that the result would have been different”: Fiorilli, at para. 59 (emphasis in original). As Doherty J.A. observed in R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 75, leave to appeal refused, [1996] S.C.C.A. No. 347, a “reasonable probability is more than a mere possibility, but less than a likelihood.” In R. v. Al-Shammari, 2016 ONCA 614, at para. 75, Juriansz J.A. explained:A reasonable probability 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. . R. v. Tran
In R. v. Tran (Ont CA, 2024) the Ontario Court of Appeal considers the common criminal appeal grounds of inneffective assistance of counsel:(1) The ineffective assistance of counsel grounds
[17] As Paciocco J.A. explained in R. v. Fiorilli, 2021 ONCA 461, at para. 48:
A three-part test is used to determine ineffective assistance of counsel appeals, with the appellant bearing the onus of proof and persuasion with respect to each part. The structure of the test was neatly summarized by Watt J.A. in R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91: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 incompetent representation by trial counsel (the prejudice component). The standard of proof is the balance of probabilities: Fiorilli, at para. 51; R. v. K.K.M., 2020 ONCA 736, at para. 55. Since “if the prejudice component cannot be met, there is no reason to subject the performance of counsel to judicial inquiry … it will usually be the case that the proper analytical order of the three-part test is (i), (iii), and then (ii)”: Fiorilli, at para. 49; R. v. G.D.B., 2000 SCC 22, at para. 29. . R. v. R.S.
In R. v. R.S. (Ont CA, 2024) the Ontario Court of Appeal considered a criminal appellate argument of 'ineffective assistance of counsel':[10] With respect to ineffective assistance of counsel, the focus is whether the evidence shows that the assistance of counsel at trial was so ineffective that the conviction is the product 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; and R. v. MacLeod, 2020 ONCA 596, at para. 15.
[11] The test to prove ineffective assistance of counsel has three components which the moving party must establish:1. the facts on which the claim is grounded (the factual component);
2. the incompetence of the representation provided by trial counsel (the performance component); and
3. a miscarriage of justice as a result of the incompetent representation by trial counsel (the prejudice component): R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 91. [12] The Crown argues that the appellant’s evidence does not meet the threshold for ineffective assistance of counsel.
[13] Turning to the factual component, Paciocco J.A. described this threshold in R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at para. 51:The factual component requires the appellant to “establish the facts material to the claim of ineffective assistance on the balance of probabilities”: R. v. K.K.M., 2020 ONCA 736, at para. 55. In determining whether an appellant has done so, allegations of incompetent representation must be assessed in light of the “strong presumption of competence in favour of counsel”: R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 140. Courts should also be mindful of the incentive there may be for a convicted appellant to make false allegations, particularly in light of the ease with which false allegations can be made, and the potential unreliability that can arise when events are recalled “through the bars of a jail cell”: Archer, at para. 142. As Doherty J.A. noted in Archer, 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.” . 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. ...
|
