Thursday, June 11, 2015

Ineffective Assistance of Counsel

R. v. Trudel, 2015 ONCA 422:

[32]       The analysis of a claim of ineffective assistance of counsel proceeds upon a strong presumption that counsel's assistance was competent: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27.

[33]       The onus is on the appellant to rebut this presumption by establishing both that counsel was incompetent and that this incompetent assistance resulted in a miscarriage of justice: R. v. L.C.T., 2012 ONCA 116, 252 C.R.R. (2d) 223, at para. 37.

[34]       Before the court will assess competence, however, the appellant must demonstrate she suffered prejudice: G.D.B., at para. 29. Where the alleged prejudice relates to the reliability of the verdict rather than procedural fairness, like in this case, the accused must demonstrate there is a reasonable possibility that the result would have been different but for the alleged incompetence: R. v.Dunbar, 2007 ONCA 840, at para. 23

[35]       If the appellant has not met her onus on the issue of prejudice, it is undesirable and unnecessary for the court to consider the performance component of the analysis: G.D.B., at para. 29.

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