[6] The applicable legal principles are not in dispute. An accused represented by counsel is entitled to effective representation. An appeal court will receive fresh evidence concerning an allegation of ineffective assistance of counsel under s. 683(1) of the Criminal Code. If an appellant establishes ineffective representation that resulted in a miscarriage of justice, his or her conviction will be quashed. See R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at 43-44, 56-58 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347; R. v. Archer (2005) O.J. No. 4348 (Ont. C.A.) at 118.
[7] To succeed in a claim of ineffective assistance of counsel, an appellant must establish the three components described by Doherty J.A. at paras. 119 and 120 of Archer:
First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel's acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance": R. v. G.D.B. (2000), 143 C.C.C. (3d) 289 at 298 (S.C.C.).
…
Third, the appellant must demonstrate that counsel's ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: G.D.B., supra, at pp. 298-99; Joanisse, supra, at pp. 62-64.
[8] In G.D.B., at p. 298, Major J. suggested that a court should first decide whether the alleged incompetence of counsel resulted in a miscarriage of justice because, in the absence of a miscarriage of justice, it would be unnecessary to consider the other two elements that deal with counsel's performance.
James Morton
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