INEFFECTIVE ASSISTANCE OF COUNSEL: LEGAL …

1 INEFFECTIVE ASSISTANCE OF counsel : LEGAL ISSUES James A. Gumpert, Public Prosecution Service (Appeals Branch) Maritime Centre 1505 Barrington Street, Suite 1225 Halifax, Nova Scotia B3J 3K5 TEL: (902) 424-5450 Conference Page I INEFFECTIVE Representation of counsel More and more appeals are being brought citing as a ground of appeal the INEFFECTIVE ASSISTANCE of counsel at trial. Some appeals have been successful on this ground and it is vital for any lawyer who practices criminal law to know the standards and tests by which her or his competence in conducting a criminal defence matter may be judged at a later time.

2 The Supreme Court of Canada has not yet spoken on this matter and it is therefore important to review the trends in the law as decided by provincial Courts of Appeal. Entitlement to Effective ASSISTANCE of counsel An accused who has retained counsel is entitled to the effective ASSISTANCE of that counsel . In the 1996 Ontario Court of Appeal decision in R. v. , 104 (3d) 353 it was held at and 368: An accused who has retained counsel is entitled to the effective ASSISTANCE of that counsel : R. v. Silvini (1991), 68 (3d) 251,9 (4th) 233,5 (3d) 545 ( ). The right to the effective ASSISTANCE of counsel is a constitutionally protected right and is an aspect of an accused's right to make full answer and defence and right to a fair trial.

3 INEFFECTIVE representation by trial counsel may be cast as a Charter violation, or as the cause of a miscarriage of justice. Thus, an accused who claims an entitlement to appellate intervention based upon the incompetence of trial counsel may seek that relief through (1) of the Canadian Charter of Rights and Freedoms upon the finding of a Charter violation, or on the basis that the INEFFECTIVE representation of counsel has given rise to a miscarriage of justice. The Tests a Court of Appeal will AWly The trend in provincial Courts of Appeal has been to apply a two or three step test to determine if an appeal should be allowed based on the INEFFECTIVE ASSISTANCE of counsel .

4 The origins of this test appear to come in at least part from the 1984 United States Supreme Court decision in Strickland v. Washington, 104 2052. The following decisions show the similarity of the tests applied across the country. Conference Page 2 In R. v. Schofield (1996), 148 (2d) 175 at 179 the Nova Scotia Court of Appeal quoted with approval the following passage from its earlier decision in R. v. Boudreau (1991), 105 (2d) 15: "It is an accepted constitutional principle in the United States that the right of an accused to 'have the ASSISTANCE of counsel for his defence' guaranteed by the Sixth Amendment, is to have the effective ASSISTANCE of counsel .

5 Where, however, the defendant alleges that the incompetence of counsel deprived him of the effective ASSISTANCE of counsel , the defendant must show, in addition to the lack of competence on the part of defence counsel , that there is a reasonable probability that, but for counsel 's unprofessional errors, the result of the trial would have been different .. "For the purposes of this appeal, I am however prepared to assume that an accused has a constitutional right to the effective ASSISTANCE of counsel . In Strickland v. Washington, 104 2052 (1984), Justice O'Connor, speaking for the court, said in part ( ): '.

6 The defendant must show that there is a reasonable probability that, but for counsel 's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " Later in Schofield (at ) the Nova Scotia Court of Appeal summarized the test to be applied as follows: The appellant who contends that he has not received this protection must therefore establish: (a) that counsel at the trial lacked competence, and (b) that it is reasonably probable that but for such lack of competence, the result of the proceedings would have been different.

7 This statement was quoted with approval in the 1998 Nova Scotia Court of Appeal decision R. v. McNamara, [1998] The two part test has received approval in other provinces as well. In R. v. Strauss (1995), 100 (3d) 303 the British Columbia Court of Appeal referred to the following test: counsel agree that the test to be applied is the one which Martin accepted in R. v. Garofoli, supra. The test is taken from the opinion of Justice O'Connor in Strickland v. Washington, 104 2052 (1984), where the constitutional right, guaranteed by the Sixth Amendment to the United States Constitution was held to be the right to the effective ASSISTANCE of counsel .

8 Conference In Garofoli Martin said this [at ]: .. where the defendant alleges that the incompetence of counsel deprived him of the effective ASSISTANCE of counsel , the defendant must show, in addition to the lack of competence on the part of defence counsel , that there is a reasonable probability that, but for counsel 's unprofessional errors, the result of the trial would have been different. In Strickland v. Washington, 104 2052 (1984), Justice O'Connor, delivering the opinion of the Court, said at : "A convicted defendant's claim that counsel 's ASSISTANCE was so defective as to require reversal of a conviction or death sentence has two components.

9 First, the defendant must show that counsel 's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the " counsel " guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel 's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

10 " Page 3 In the 1996 Saskatchewan Court of Appeal decision in R. v. Sutherland, 112 (3d) 454 the Court adopted the United States Supreme Court two part test by holding at and 469: This Court, in R. v. B.( ) (1992), 76 (3d) 530 ( ), recognized that a finding of flagrant incompetence on the part of defence counsel might so taint a verdict that a new trial is warranted on the basis of a miscarriage of justice within the meaning of (1)(a)(iii) of the Criminal Code. The Ontario Court of Appeal, in a series of judgments culminating in R. v. Joanisse (1995),102 (3d) 35 ( ), has recognized a right to effective ASSISTANCE of counsel both under (1)(a)(iii) of the Criminal Code, and and 11(d) of the Canadian Charter of Rights and Freedoms.