The Right to Effective Assistance of Counsel: Effective Assistance Requires Counsel to advise an accused adequately of his/her right to elect the mode of trial

The right to the effective assistance of counsel is constitutionally protected. It is part of the right to make full answer in defence and the right to a fair trial: R. v. G.D.B., [2000] 1 S.C.R. 520, para. 24; R. v. Joanisse, [1995] O.J. No. 2883, at para. 63.

The analytical framework was set out by Doherty J.A. in Joanisse at para. 69, and in R. v. Baylis, 2015 ONCA 477, at para 61. The court starts with the presumption that trial counsel was competent.

The framework has three elements.

·         First, the appellant must establish the facts on which the claim of incompetence is based.

·         Second, the appellant must establish that the representation provided by trial counsel was incompetent, in that counsel’s performance fell below a standard of reasonable professional assistance.

·         Third, the appellant must establish prejudice by showing that the incompetent representation resulted in a miscarriage of justice. The miscarriage of justice can be established in one of two ways:

1.       The first is to show that incompetent representation undermines the reliability of the verdict.

2.       The second is to show that the incompetent representation undermined the appearance of the fairness of the trial proceeding.

Where the Ineffective Assistance has Undermined the Reliability of the Verdict

Most allegations of ineffective assistance of counsel take the first route, and involve claims that discrete instances of counsel’s incompetence worked to render the verdict unreliable. To succeed on this basis the appellant must demonstrate a reasonable possibility that, but for the incompetence, the verdict could have been different.  That is the prejudice to be established. Examples from the cases include the following:

·         counsel’s failure to object to inadmissible evidence,

·         the failure to call material witnesses,

·         the lack of preparation for trial,

·         failure to review Crown disclosure carefully,

·         the failure to prepare the accused to testify, and

·         the failure to cross-examine effectively, or at all.

Where the Ineffective Assistance has Undermined the Appearance of Trial Fairness

However, different considerations apply where the appellant takes the second route and challenges trial fairness, particularly on the basis that counsel has made certain decisions that should have been made by the accused person because they relate to the accused person’s fundamental right to control his or her own defence: R. v. Swain, [1991] 1 S.C.R. 933, at para. 35.

Decisions that only the client can make include the following:

·         how to plead;

·         whether to waive a trial by jury where that is permissible;

·          whether to testify on his own behalf;

·         the right to elect the mode of trial under s 536 of the Criminal Code.

The right to elect the mode of trial is one of the fundamental rights that counsel cannot take from a client and on which the client is entitled to be adequately advised by counsel.

If an accused receives no advice from counsel as to his options, or the advantages and disadvantages of the respective options, then the accused has effectively been denied his right to choose his mode of trial under s.536 of the Criminal Code. The miscarriage of justice lies in proceeding against the accused without allowing him to make an informed election, and the accused need not establish further prejudice. What the accused might or might not have done had he been aware of his options is not relevant.

R. v. Stark, 2017 ONCA 148