Ineffective assistance of counsel

R. v. Zheng, 2014 ONCA 345:

[22]       In R v. Archer, (2005) 293 O.A.C. 56, at paras. 119-21, this Court summarized the principles relating to an appellate court’s analysis of a claim of ineffective assistance of counsel.   The appellant must demonstrate: (i) that the material facts in support of the claim have been established on a balance of probabilities, where those facts are contested; (ii) that counsel’s acts or omissions amounted to incompetence; and (iii) that counsel’s ineffective representation caused a miscarriage of justice.  Trial counsel’s performance at trial is to be reviewed on a deferential basis because, as this Court said in R v. White (1997), 114 C.C.C. (3d) 225, at p. 247, “even among the most skilled counsel, no two lawyers will defend an accused in the same way”.  In Archer, the Court said:

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 P. 298 (S.C.C.) [Emphasis added.]