Stuart O'Connell Criminal Law Blog

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. 52...

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...