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Criminal - Appeals - Ineffective Assistance of Counsel[*** temporarily, there are more 'criminal ineffective assistance of counsel' cases in '/civil-appeals/3. common grounds of appeal/other common grounds of appeal' (see the header)]
. R. v. Papasotiriou
In R. v. Papasotiriou (Ont CA, 2023) the Court of Appeal considers ineffective assistance as a criminal appeal ground:[137] Before turning to the specific factual allegations, which counsel relies on to demonstrate that Mr. Ivezic did not receive effective representation at trial, it is helpful to briefly review the applicable legal principles. Canada has a deep and well-developed jurisprudence relating to ineffective assistance of counsel claims brought on appeal in criminal proceedings.
[138] There are three components to an ineffective assistance claim. The appellant must establish the facts on which the claim is based (the factual component). Counsel must further demonstrate that the legal assistance provided was incompetent, in that counsel’s performance fell below the standard expected of a reasonably competent counsel, in the circumstances (the performance component). Finally, the appellant must show that counsel’s incompetence resulted in a miscarriage of justice. A miscarriage will occur if there is a reasonable probability that the outcome of the trial would have been different had the appellant received adequate legal assistance: R. v. Leslie, 2021 MBCA 29, 403 C.C.C. (3d) 113, at para. 35, citing R. v. Aulakh, 2012 BCCA 340, 295 C.C.C. (3d) 315, at para. 68; R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), 102 C.C.C. (3d) 35, at pp. 62-64, leave to appeal refused, [1996] S.C.C.A. No. 347. Counsel’s incompetence may also so detract from the fairness, or the appearance of the fairness, of the trial process as to result in a miscarriage of justice: Joanisse, at pp. 62-63.
[139] Recently, in R. v. White, 2022 SCC 7, 411 C.C.C. (3d) 419, the court referred to the standard required to establish a miscarriage of justice based on the appearance of unfairness as “high”. The court went on:[T]he defect must be “so serious that it shakes public confidence in the administration of justice.” [Citations omitted.] [140] The ultimate inquiry on appeal is not whether counsel performed competently, but whether counsel’s performance resulted in a miscarriage of justice. Ineffective assistance claims are best approached by first determining whether counsel’s conduct led to the kind of prejudice which would render the verdict a miscarriage of justice: R. v. G.B.D., 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.
[141] Mr. Ivezic submits that he suffered both kinds of prejudice as a result of S.A.’s incompetence. He submits that the impact of her incompetence on the reliability of the verdicts, and the appearance of the fairness of the trial, taken together, produced a miscarriage of justice. Mr. Ivezic refers to four specific incidents, which occurred in the pretrial proceedings in support of this proceeding. I will deal with each separately, while recognizing that it is the cumulative effect of counsel’s conduct that must ultimately be assessed. . R. v. R.W.
In R. v. R.W. (Ont CA, 2023) the Court of Appeal considers the law of ineffective assistance of counsel, here when counsel missed a time limit for making a trial election:[18] In terms of the proper framework for adjudicating this issue on appeal, the ineffective assistance of counsel (IAC) framework is applicable: R. v. White, 2022 SCC 7, 411 C.C.C. (3d) 419. In White, Karakatsanis J. referenced R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 616 (a guilty plea case), and held that the mere loss of the right to make a proper election was not sufficient to ground such a claim; an appellant must prove subjective prejudice arising from counsel’s ineffectiveness.
[19] Thus, as with any other IAC claim, the appellant must establish the following: (1) the facts material to the claim of ineffective assistance on the balance of probabilities; (2) that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances; and (3) the ineffective representation resulted in a miscarriage of justice: R. v. Archer, (2005) 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 119-120.
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[23] Returning to the IAC framework, it is my view that the appellant has established all three elements. In terms of proving the underlying facts in support of the allegation of ineffective assistance, on balance, the materials filed on the fresh evidence application confirm that the appellant wanted a trial by judge alone.
[24] The fact-finding task at this stage would have been more straightforward had trial counsel obtained written instructions concerning the original election and the attempt to re-elect. The failure to obtain written instructions about important steps in the criminal trial process makes it more difficult to decide IAC claims on appeal. Seeking written instructions from a client on critical decisions is a matter of professional prudence. The failure to do so is “ill-advised and contrary to counsel’s best interests”: R. v. B. (W.E.), 2012 ONCA 776, 366 D.L.R. (4th) 690, at para. 10, aff’d 2014 SCC 2, [2014] 1 S.C.R. 34. See also R. v. Trought, 2021 ONCA 379, 156 O.R. (3d) 481, at paras. 76-77.
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[26] Second, there can be little doubt that the representation provided by counsel fell below the standard of reasonable professional assistance in the circumstances. Sometimes, this standard is met by demonstrating a course of conduct spanning the entire trial (see R. v. Blake, 2023 ONCA 220); in other cases it is established by a single misstep that has dramatic consequences (see Trought). The key to success in both circumstances is proof of prejudice.
[27] In this case, there was critical misstep – trial counsel missed a statutory deadline that would have allowed his client to re-elect as of right. This is akin to missing a limitation period in the civil context. Although trial counsel attempted to undo his mistake, he was unsuccessful. Unfortunately, the matter could have been easily remedied by Crown counsel honouring her written agreement to consent to re-election, but this did not happen.
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