Ineffective assistance of counsel

R. v. Messervey, 2010 NSCA 55 deals with the vexed issue of ineffective assistance of counsel in the context of a guilty plea where the accused received a longer sentence than he anticipated.

 

The accused was charged with multiple counts of assault with weapons, and unlawful confinement against his spouse.  Guilty pleas were entered on the firearm and breach charges. On the morning of his trial for the spousal assault charges, the accused said he was unfairly pressured into instructing his counsel to plead guilty.  He was sentenced to a longer period of imprisonment than what he believed would be imposed.

 

It is common for an accused to feel great pressure when, on the eve of trial, counsel suggests a guilty plea is prudent.  That said, the pressure does not invalidate a plea – the critical issue is whether or not the accused properly understood what the plea involved (admitting to the facts underlying the offence) and whether there was a miscarriage of justice.  Such pleas, in the overall context, are seldom invalid.

 

The Court’s review of the law is helpful:

 

 

 

…  Before setting out my analysis of these issues, it is useful to refer to some of the general principles that govern the admission of fresh evidence and an appellate court’s role when faced with an allegation of ineffective assistance of counsel.

 

 

 

[21]         The principles are uncontroversial.  For a claim of ineffectiveness of counsel to succeed, it must be established that trial counsel’s acts or omissions constituted incompetence,  and a miscarriage of justice resulted.  Incompetence is to be determined by application of a reasonableness standard.  There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.  The conduct of counsel is not to be assessed with the benefit of hindsight.  If no prejudice can be demonstrated, it is appropriate to dispose of the claim on that basis and leave the issue of counsel’s conduct or performance to the profession’s self-governing body.  (See R.v. G.D.B., 2000 SCC 22 (CanLII), 2000 SCC 22, [2000] 1 S.C.R. 520 at paras. 26-29.) 

 

 

 

[22]         The trial record may not contain all of the necessary information to properly assess an appellant’s claim of ineffectiveness of counsel.  Fresh evidence is frequently sought to be adduced on appeal to provide the necessary context to complaints of counsel’s performance, including the content of discussions between counsel and the appellant.  Where the proposed fresh evidence goes to challenge some aspect of the trial process, the traditional strictures on admission of fresh evidence on appeal set out in Palmer v. The Queen, 1979 CanLII 8 (S.C.C.), [1980] 1 S.C.R. 759 are somewhat relaxed (R. v. Nevin, 2006 NSCA 72 (CanLII), 2006 NSCA 72, at para. 4).  The necessarily nuanced approach to the admissibility of fresh evidence was recently reviewed by this Court in R. v. West, 2010 NSCA 16 (CanLII), 2010 NSCA 16.

 

 

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[27]         Furthermore, the suggestion of incompetence is one made with the benefit of hindsight.  As Major J. emphasized in R. v. G.D.B., the wisdom of hindsight has no place in assessing counsel’s tactical advice or decisions.  Lastly, the appellant fails to identify how this caused the appellant to suffer from a miscarriage of justice.  He pled guilty, and when sentenced, was given a 2-1 credit for the time he spent on remand.