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The Test on Appeal


It can be in the interests of justice to admit fresh evidence of ineffective assistance of counsel on appeal: R v Chica, 2016 ONCA 252 at para 5

In order to succeed, the Appellant must establish:

  1. the material facts underlying the allegation, on a balance of probabilities;

  2. that counsel’s acts or omissions constituted incompetence, measured on a reasonableness standard and in light of a strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional assistance (the “performance component”); and

  3. that counsel’s ineffective representation caused a miscarriage of justice by resulting in procedural unfairness or undermining the reliability of the verdict (the “prejudice component:”Chica at para 7; R v Trudel2015 ONCA 422 at paras 32-33


A claim for ineffective assistance of counsel has a performance component and a prejudice component: R v Nwagwu, 2015 ONCA 526 at paras 6-7



1) Prejudice Component


Before considering the performance component, the court must consider prejudice – whether there has been a miscarriage of justice as a result of an unreliable verdict or procedural unfairness or the appearance of unfairness: Nwagwu at paras 6-7 (citations omitted); R v Bayliss, 2015 ONCA 477 at para 61; R v Trudel, 2015 ONCA 422 at para 34


Unreliability of the verdict is made out where the appellant can establish that there is a reasonable probability that the verdict would have been different had he received effective legal representation. A reasonable probability is a probability that is sufficiently strong to undermine the appellate court’s confidence in the validity of the verdict: 



2) Performance Component


The performance component requires that the appeal court test the competence of the representation provided to the appellant against the standard of reasonable professional assistance: R v Baylis, 2016 ONCA 477 at para 61


In order to suceed on appeal, the appellant must establish that his trial counsel’s performance fell outside the “wide range of reasonable professional assistance” and that there was a reasonable possibility that the result at trial would have been different but for his counsel’s alleged mistakes: R v J.L, 2016 ONCA 221 at para 1



Examples from the Case Law

  • The relevant test laid out and applied in the context of an appeal to strike a guilty plea: R v Baylis, 2015 ONCA 477


  • The relevant test laid out and applied in the context of an appeal to strike an NCR order: R v Trudel, 2015 ONCA 422


  • The failure to advise a client of the effect of a guilty plea on the client’s immigration status prior to plea is discussed – but not decided: R v Shiwprashad, 2015 ONCA 577

  • The failure to advise a client of the criminal consequences of a guilty plea and aggravating factors contained in the summary of facts acknowledged by the accused at a plea: R v Simard, 2017 ONCA 149

  • The failure to give a client an adequate opportunity to consider his election as to mode of trial: R v Stark, 2017 ONCA 148

  • The failure to review an accused's statement to police where the accused was cross-examined on that statement at trial, and the concession of voluntariness despite the failure to discuss with the accused the circumstances surrounding the giving of the statement: R v EH, 2017 ONCA 423 



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