Ineffective Representation: Failure of Trial Counsel to Bring a 276 Application


An accused is constitutionally entitled to effective representation.  Effective representation means reasonably competent representation.  Counsel’s performance is measured without the benefit of hindsight and bearing in mind that the reasonable exercise of professional judgment will in many instances allow for different tactical decisions.

R. v. G.D.B., 2000 SCC 22 (CanLII), [2000] 1 S.C.R. 520, at paras. 27-28.

Was there a miscarriage of justice?

If an accused who receives ineffective representation at trial is convicted, the conviction must be quashed if the result is properly characterized as a miscarriage of justice. 

A miscarriage of justice occurs if the ineffective representation either:

a.      Sufficiently undermines the reliability of the verdict

·       the reliability of a verdict is sufficiently undermined if the appeal court concludes that there is a reasonable probability that the verdict would have been different had the appellant received adequate legal representation.



b.     Results in an unfair trial.

 See R. v. Prebtani, 2008 ONCA 735 (CanLII), at para. 4;

 R. v. Joanisse, 1995 CanLII 3507 (ON CA), [1995] O.J. No. 2883, at paras. 74-80 (C.A.), leave to appeal to SCC refused, [1996] S.C.C.A. No. 347.




Failure of trial counsel to bring a 276 application


Section 276 of the Criminal Code requires that before evidence can be adduced of sexual activity other than the activity alleged in the charge, counsel must apply for and obtain an order permitting the eliciting of that evidence. 

In some instances, appellate counsel will be able to establish that the failure of trial counsel to bring a 276 application sufficiently undermined the reliability of the verdict.

See for example R. v. Walendzewicz, 2018 ONCA 103, at para. 10.  

However, the failure of trial counsel to even attempt to bring a s. 276 application may itself be enough to establish ineffective representation.

R. v. R.S., 2016 ONCA 655, 341 C.C.C. (3d) 530;

See also R. v. Walendzewicz, 2018 ONCA 103, at para. 10 (obiter). 



Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca

Comments

Post a Comment

Popular posts from this blog

Warrantless Drug Searches (Section 11(7) of the CDSA)

Were there exigent circumstances? Did the exigent circumstances render it impracticable to obtain a warrant? Section 11(7)   of the Controlled Drugs and Substances Act states: (7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one. Subsection (1)   of s. 11 empowers a peace officer to conduct a warranted search of a place for, inter alia , a controlled substance and to seize it. Section 11(7), therefore, empowers a peace officer to conduct a warrantless search for a controlled substance, so long as conditions for obtaining a warrant existed and exigent circumstances made it impracticable for the officer to obtain a warrant. For a warrantless entry into a residence to satisfy section 11(7) , the Crown must show that the entry was compelled by urgency, calling for immediate police action to prese
Read more

Arrested at Home: Feeney Warrants

At common law, where the police had reasonable grounds to arrest a suspect and reasonable grounds to believe a suspect was in a private dwelling-house, they were entitled to enter and arrest the suspect, with or without an arrest warrant, if proper announcement was made. See R. v. Landry , 1986 CanLII 48 (SCC), [1986] 1 S.C.R. 145 , and Eccles v. Bourque et al. , 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739 ). However, in the 1997 decision of R. v. Feeney , the Supreme Court of Canada ruled that the common law violated s. 8 of the Canadian Charter of Rights and Freedoms and that generally, warrantless arrests within private dwellings were prohibited.  Absent exigent circumstances or cases of hot pursuit, an entry warrant would be required to enter a dwelling house to make an arrest.    R. v. Feeney , 1997 CanLII 342 (SCC), at paras. 44-51.  Parliament responded by enacting sections 529-529.5 of the Criminal Code , which, among other things, creates two distinct authorizatio
Read more

Night time Execution of a Search Warrant

Warrants Authorized under the Criminal Code The Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code , s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code .    Section 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under the authority of section 11 of the CDSA, which may be executed “at any time”.  R. v. Shivrattan, 2017 ONCA 23; R. v. Saunders , 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27, 31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505; R. v. Dueck , 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and R. v. Newell , [2007] O.J. No. 2348, at para. 47 (Ont. S.C.). Warrants Authorized under the Controlled Drugs and Substances Act Unlike warrants issued under the Criminal Code , there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night t
Read more