Ineffective assistance of counsel

Yesterday's decision of the Court in R. v. M.B., 2009 ONCA 524 sets out nicely the test for ineffective assistance of counsel at trial:

(1) Ineffective Assistance of Trial Counsel

[6] An accused who is represented by counsel at trial is entitled to receive effective legal assistance. This entitlement is embodied in the constitutional protections afforded by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. In R. v. Joanisse (1995), 102 C.C.C. (3d) 35, leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347, at p. 57, Doherty J.A. of this court explained:

Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice. This court is under a statutory obligation to quash convictions which are the product of a miscarriage of justice: Criminal Code, s. 686(1)(a)(iii). The accused who is the victim of a miscarriage of justice is entitled to at least a new trial.

[7] The burden of establishing ineffective representation at trial warranting appellate intervention rests on the accused. This burden is not easily discharged. Claims of ineffective representation by trial counsel are approached with caution by appellate courts. As Doherty J.A. observed in Joanisse, at p. 58: "It would be a rare case where, after conviction, some aspect of defence counsel's performance could not be subjected to legitimate criticism. ... Appeals are not intended to be forensic autopsies of counsel's performance at trial."

[8] This court has adopted a three-stage approach to the scrutiny of ineffective representation claims. Under this approach, 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): Joanisse, at p. 59; R. v. P.(T.) (2002), 59 O.R. (3d) 577 ( C.A. ), at para. 19.

[9] In R. v. G.D.B., [2000] 1 S.C.R. 520, at paras. 26-29, Major J. of the Supreme Court of Canada observed that, in most cases, it is best to begin with an inquiry into the prejudice component of an ineffective assistance of counsel claim. If the appellant cannot demonstrate prejudice from the alleged ineffective assistance of counsel, it is unnecessary to address the competence of counsel at trial.

[10] The standard to be met in relation to the performance component of the test is one of reasonableness. Hindsight has no place in this assessment: see R. v. G.D.B., at para. 27; Joanisse, at p. 61. 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": Joanisse, at p. 62. Prejudice can be established if the appellant can show that there is a reasonable probability that but for the alleged incompetence, the result of the proceeding would have been different. A reasonable probability in this context is a probability that is sufficiently strong to undermine the appellate court's confidence in the validity of the verdict: Joanisse, at p. 64; R. v. Dunbar, 2007 ONCA 840, at para. 23. As Doherty J.A. indicated in Joanisse, at p. 64: "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."