Ineffective Assistance of Counsel

It is not uncommon for an accused person convicted of a criminal offence to blame their lawyer for the outcome. While courts look upon such complaints with scepticism, the reality is that mistakes can happen and inadequate representation can cause a miscarriage of justice. The Court of Appeal for Ontario has recognized the importance of effective legal representation to a just outcome in a criminal case, saying “We place our trust in the adversarial process to determine the truth of criminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by partisan advocacy on both sides of the case.”

When an issue of ineffective assistance of counsel is raised on appeal, the justice system must find a way to fairly deal with the complaint. In May 2000, the Court of Appeal, with the assistance of representatives from the Criminal Lawyers Association, the Department of Justice and the Ministry of the Attorney General, enacted a Protocol for the presentation of appeals where there is an allegation of ineffective assistance of counsel.

This important effort has a number of hallmarks: (a) before making a claim of ineffective assistance of counsel, the appeal lawyer must satisfy him or herself by appropriate inquiry, that there is a factual basis for the allegation apart from the instructions of the client; (b) the appeal lawyer must provide trial counsel with the opportunity to respond to the allegation; (c) trial counsel is obliged to provide their entire file to the appeal lawyer; (d) the appeal is case managed by a judge of the Court of Appeal; (e) the Crown Attorney is entitled to review the file of trial counsel, except for those portions over which solicitor and client privilege is claimed; (f) if solicitor and client privilege is claimed, the appeal lawyer must provide an inventory of such documents to the Crown Attorney; (g) disputes over privilege will be decided by the case management judge; (h) either party can compel trial counsel to attend for examination on the issues involved in the appeal.

This creative Protocol ensures that the interests of all parties to the appeal are adequately protected. In the end however, the burden of proof is on the accused person to demonstrate to the appellate Court that ineffective assistance of trial counsel caused a miscarriage of justice.