Ineffective assistance of counsel

R. v. J.B., 2011 ONCA 404 deals with the ineffective assistance of counsel.  As the Court of Appeal noted in R. v. M.B., 2009 ONCA 524:

 

[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.

 

In R. v. J.B the Court clarifies the test and sets out the prerequisites necessary for a new trial to be ordered:

 

[2]              There are several prerequisites which must be met before a court will set aside a conviction on the basis of ineffective assistance of counsel.  First, the appellant must establish the facts underlying the allegation on a balance of probabilities.  Second, the appellant must establish that the acts or omissions amount to incompetence.  Third, the appellant must establish that the ineffectiveness resulted in a miscarriage of justice, by undermining either the appearance of a fair trial or the reliability of the verdict.  The court is to determine the last question first, as, if competent representation could not have altered the verdict, it is unnecessary to undertake the other parts of the analysis. See R. v. Archer (2005), 202 C.C.C. (3d) 60, paras.118-121 (Ont. C.A.); R. v. G.D.B. (2000), 143 C.C.C. (3d) 289, paras.23-29 (S.C.C.); R. v. White (1997), 114 C.C.C. (3d) 225, at pp. 245-247 (S.C.C.); R. v. Joanisse (1995), 102 C.C.C. (3d) 35, at pp.43-44, 56-58 (Ont. C.A.).  In our opinion those prerequisites have been met.