Ineffective Assistance of Counsel in Canada: Appealing a Conviction Because Your Lawyer Messed Up

If you believe you were convicted because your lawyer made mistakes, you may consider an appeal based on ineffective assistance of counsel.

In this article, I will answer some frequently asked questions about challenging a guilty verdict on this basis.

To win an ineffective assistance of counsel appeal, you must prove two things: (a) your lawyer acted incompetently and (b) your lawyer’s incompetence resulted in a miscarriage of justice.

There is no one-size-fits-all answer to this question, as the answer depends on the unique circumstances of your case.

Below are examples of when the court might find your lawyer acted incompetently:

• not allowing you to testify;
• failing to advise you on the advantages and disadvantages of testifying;
• not preparing you to testify;
• being drunk at your trial;
• not adequately questioning an opposing witness (questioning an opposing witness is called cross-examination);
• waiving your right to a jury trial without your input;
• representing you despite having a conflict of interest (for example, your lawyer also represents an opposing witness); or
• introducing evidence of your bad character.

These are just some examples. As I said, each case is different. There may be many other reasons for a court to find that your lawyer acted incompetently.

Proving that your lawyer acted incompetently is not enough to establish ineffective assistance of counsel. You must also show that the incompetence either (a) made the verdict unreliable or (b) made the trial unfair. Establishing either one would mean that the ineffective assistance of counsel caused a miscarriage of justice.

I’ll explain both below.

A verdict is unreliable due to ineffective assistance of counsel if there is a reasonable possibility that the outcome may have been different if it weren’t for your lawyer’s incompetence.

Consider this example.

You’re on trial for sexual assault. The person who made the complaint against you (also known as the complainant) tells the police that the sexual assault occurred in the afternoon on Canada Day last year. The complainant expresses certainty about the date. Two of your friends could testify that you were at a Blue Jays game that afternoon. You don’t just have alibis. You also have pictures and videos of yourself at the game. Although you give your lawyer all this information, they don’t raise any of it at trial. The trial court never hears that you were at the game. You’re convicted of sexual assault, despite having evidence that could have proved your innocence.

An appeal court may find that this verdict was unreliable due to your lawyer’s incompetence.

Indeed, allowing an unreliable verdict to stand would risk a wrongful conviction.

Unlike an unreliable verdict, fairness is not about the outcome. Fairness concerns the process that led to the outcome.

For example, your lawyer never gives you a choice on whether to testify. Here, the court may find that your lawyer prevented you from exercising your fundamental right, therefore making the process unfair.

Like an unreliable verdict, a verdict that arises in unfair circumstances can’t stand.

You’ll likely need to file an official statement (also known as an affidavit) detailing the ineffective assistance of counsel. You may also have to answer questions under oath about the facts you’re alleging.

You may not be the only person who provides evidence. The court will probably want to hear from your trial lawyer as well.

In extremely rare cases, a transcript of your trial may be enough to establish ineffective assistance of counsel. I pause to emphasize “extremely rare”. Very few ineffective assistance of counsel appeals succeed on a transcript alone.

Ultimately, you must prove the facts underpinning your ineffective assistance of counsel claim on a balance of probabilities. This means that the facts are more likely true than not.

No. This is one of the hardest grounds of appeal to win. The appeal court doesn’t like to second guess your trial lawyer. And any errors your lawyer made must be serious enough to cause a miscarriage of justice.

Because this ground is so challenging, your appeal lawyer may suggest another route to overturning the conviction. These other routes may become apparent to your appeal lawyer when they review the matter.

Before appealing for ineffective assistance of counsel, your appeal lawyer must determine whether the claim has merit. If it doesn’t, your appeal lawyer may not advance this ground.

Yes.

In Ontario, your appeal lawyer must notify your trial lawyer about a possible ineffective assistance of counsel claim. And your appeal lawyer must give your trial lawyer a chance to respond.

On the flipside, your trial lawyer must give your appeal lawyer access to the file.

In almost all successful ineffective assistance of counsel appeals, the court orders a new trial. After the appeal, the prosecutor (called the Crown in Canada) decides whether to re-prosecute. This decision is completely up to the Crown.

If you plan to appeal your conviction based on ineffective assistance of counsel, you should hire an appeal lawyer.  This ground of appeal is highly technical and would be very hard to win without legal training.

Although it’s best to hire your appeal lawyer quickly, take enough time to find the right person. Call around.

But be careful not to miss the 30-day deadline to file your notice of appeal. That clock runs quickly.

Many firms – including ours – offer initial consultations for free. You can speak to a lawyer now by calling (416) 999-8389. You may also email us or fill out an initial consultation form.