Ineffective Assistance of Counsel: False Affidavit


The right to effective assistance of counsel extends to all accused persons.  In Canada that right is seen as a principle of fundamental justice.  It is derived from the evolution of the common law, s. 650(3) of the Criminal Code  and ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

When a claim of ineffective assistance is raised, the onus is on the appellant to establish

(1) the facts that underpin the claim;

 (2) the incompetence of the assistance provided [FN1]; and

(3) the incompetent assistance resulted in a miscarriage of justice.

R. v. L.C.T., 2012 ONCA 116, at para. 37.

To succeed at this third step, the appellant must establish either that there is

a)    a reasonable probability that the verdict would have been different had he received effective legal representation [FN2], or

b)     that his counsel’s conduct deprived him of a fair trial.

See R. v. G.D.B., [2000] 1 S.C.R. 520.

The accused who is the victim of a miscarriage of justice is entitled to at least a new trial

In R. v. L.H.E., 2018 ONCA 362, the appellant alleged that his trial counsel made him sign a blank piece of paper.  Counsel then wrote the contents of the appellant’s affidavit supporting a bail review application herself, attached the blank page signed by the appellant, and signed the jurat.  She then filed the affidavit with the court without reviewing its contents with the appellant.

At trial, the appellant gave some evidence which was inconsistent with the evidence provided in his affidavit (an affidavit he claimed he did not write or review).  At least to some degree, this would have impugned his credibility as a witness at his trial.  The appellant argued that his counsel had effectively created evidence that was used against him at trial.

This was not, however, enough for the Court of Appeal for Ontario to make a finding of ineffective assistance of counsel, as there was no miscarriage of justice: counsel’s actions did not impact on the reliability of a verdict which was well-supported on the evidence, nor did they detract from the fairness of the adjudicative process at trial.

The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct.  The latter is left to the profession’s self-governing body.  

R.v. G.D.B, [2000] 1 SCR 520, 2000 SCC 22 (CanlII) at para. 5, 29.


[FN1] The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment: R. v. G.D.B, [2000] 1 SCR 520, 2000 SCC 22 (CanlII) at para. 27.
[FN2] Put another way, a reviewing court must be satisfied that the verdict cannot be taken as a reliable assessment of the appellant’s culpability: R. v. Joanisse (1995), 1995 CanLII 3507 (ON CA), pp, 63, 64.

Criminal Code. Section 650(3): An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.


 Stuart O’Connell, O’Connell Law Group (All rights reserved to author).



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