Towards Effective Management of Ineffective Assistance Claims : A Report on Allegations of Ineffective Counsel in Prisoner Appeals before the NSCA
Nova Scotia Court of Appeal Cowan Internship Project
Julianne Stevenson October 2017
Allegations of ineffective counsel lead to a difficult balancing of fairness and access to justice against the potential adverse impact on the trial counsel involved, the interests of finality in the judicial system, and court resources. The purpose of this report is to inform the Bench about the process of appeals based on ineffective assistance, particularly those of prisoner appellants. This report seeks to contextualize the issues associated with ineffective assistance claims, as well as provide an analysis of the current Nova Scotia Court of Appeal process for claims of ineffective assistance, and a comparative analysis of the approaches of other Canadian jurisdictions. This paper also canvasses the challenges faced by self-represented prisoner appellants, including consultation with the various players in the Nova Scotia process, and provides practical recommendations on how the process may be improved. 1
Editorial Notice: Certain documents and court protocol internal to organizations, including references to these internal documents and protocol, have been removed from the electronic version of this report. If you wish to inquire about the unredacted version of this report, please contact Jennifer Stairs, the Courts’ Communication Director, at [email protected].
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TABLE OF CONTENTS
INTRODUCTION ...... 6
ANALYSIS ...... 9
1. Overview of SCC Jurisprudence ...... 9
2. Ineffective Assistance Protocols & Jurisprudence in Canada ...... 20 2.1 Nova Scotia ...... 20 2.2 Newfoundland ...... 29 2.3 New Brunswick ...... 29 2.4 Prince Edward Island ...... 31 2.5 Quebec ...... 34 2.6 Ontario ...... 45 2.7 Manitoba ...... 55 2.8 Saskatchewan ...... 56 2.9 Alberta ...... 56 2.10 British Columbia ...... 57 2.11 Yukon ...... 63 2.12 Northwest Territories ...... 65 2.13 Nunavut ...... 65 2.14 Federal Court ...... 65 2.15 Additional note: NZCA Analysis ...... 71 2.16 Comparative Analysis: Conclusions ...... 74
3. Waiver of Solicitor-Client Privilege ...... 77 3.1 NSCA Jurisprudence ...... 79 3
3.2 Canadian approaches to waiver ...... 81 3.3 Consultation with LIANS ...... 83
4. Role of Trial Counsel ...... 89 4.1 Trial counsel’s performance ...... 89 4.2 Education and training ...... 93 4.3 Consultation with NS Criminal Lawyers Association ...... 95
5. Role of the Crown ...... 97 5.1 Federal ...... 97 5.2 Provincial ...... 103 5.3 Duty of the Crown ...... 105
6. Prisoner Appeals Process ...... 109 6.1 NSCA practical approach ...... 109 6.2 NSLA application ...... 110 6.3 Application for state-funded counsel (s. 684) ...... 115 6.4 Recommendations for mitigating delays ...... 119
7. Challenges for self-representation appellants ...... 121 7.1 Liberty interest ...... 121 7.2 Trust in the legal system ...... 121 7.3 Transfers ...... 122 7.4 Access to resources for appeal in prison ...... 123 7.4.1 Access to appeal books ...... 130 7.4.2 Consultation with Corrections Nova Scotia ...... 132 7.4.3 Consultation with former prison staff member ...... 133 7.4.4 Consultation with LISNS ...... 136 4
7.4.5 East Coast Prison Justice Society ...... 138 7.4.6 Consultation with Elizabeth Fry Society ...... 139
8. Additional Notes ...... 146 8.1 Child protection context ...... 146
CONCLUSIONS & RECOMMENDATIONS ...... 148
1. Practical Recommendations ...... 148 I. Robust Telechambers Process ...... 148
II. Appointment of a Commissioner ...... 150
III. Informational Video ...... 150
IV. Mobile Legal Information Clinic ...... 152
V. Court-produced Appeal Manual ...... 157
2. Recommendations at a Glance ...... 160
3. Conclusion ...... 162
BIBLIOGRAPHY ...... 163
PARTIES CONSULTED ...... 170
APPENDICES
A. Table: Summary of Comparative Analysis of Canadian Protocols - Redacted from the Published Version of this Report B. NSCA Protocol C. NSCA Registrar letter to trial counsel D. NSCA Registrar letter to trial judge E. NSCA Registrar letter to lower court 5
F. NSCA Registrar letter to Crown G. NSCA Registrar letter to inmate appellant H. Letter to prisoner (NSCA s. 684 information package) I. Notice of Motion (NSCA s. 684 information package) J. Affidavit (NSCA s. 684 information package) K. Plain language guide (NSCA s. 684 information package) L. Example letter from NSCA Registrar re: ineffective assistance M. NBCA Protocol N. PECA Protocol O. QCCA Rules provision re: ineffective assistance P. QCCA Case Management Form Q. ONCA Practice Direction R. ONCA Case Management Form S. MBCA Protocol T. SKCA Protocol – Redacted from the Published Version of this Report U. BCCA Practice Directive V. BCCA Case Management Form W. YKCA Practice Directive X. YKCA Form Notice to Registrar Y. Federal Court Protocol Z. CBA Letter re: Federal Court Protocol AA. LIANS form letter to prisoner appellants re: waiver BB. Draft Waiver Information Sheet CC. NSCA Criminal Appeal How-to Manual DD. Prison Directory – Redacted from the Published Version of this Report
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INTRODUCTION
Effective representation by counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professional trained in the skills needed during the combat of trial. The skilled advocate can test the case advanced by the prosecution, as well as marshal and advance the case on behalf of the defence. We further rely on a variety of procedural safeguards to maintain the requisite level of adjudicative fairness in that adversarial process. Effective assistance by counsel also enhances the adjudicative fairness of the process in that it provides to an accused a champion who has the same skills as the prosecutor and who can use those skills to ensure that the accused receives the full benefit of the panoply of procedural protections available to an accused. Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice.1
The importance of effective counsel is obvious: “[i]neffectiveness of counsel can both taint the outcome and a fair process” resulting in a miscarriage of justice.2 The right to effective assistance of counsel is a principle of fundamental justice that extends to all accused persons, “derived from the evolution of the common law, s.650(3) of the Criminal Code of Canada and ss.7 and 11(d) of the Canadian Charter of Rights and Freedoms.”3 However, allegations of ineffective assistance of trial counsel in criminal appeals have increased in frequency over the past decade. The
1 R. v. Joanisse, [1995] O.J. No. 2883 at paras. 66-67, 102 C.C.C. (3d) 35 (Ont. C.A.). 2 R. v. Ross, 2012 NSCA 56 at para. 33. 3 R. v. G.D.B., 2000 SCC 22 at para. 24. 7
Lawyers Insurance Association of Nova Scotia (LIANS) noted in a 2012 newsletter that such claims arose once to twice per year in Nova Scotia in previous years, but that during the 12 months preceding the publication of the newsletter alone, LIANS received over a dozen such appeals.4
On one hand, miscarriages of justice resulting from ineffective trial counsel are rare in Canada, and allegations of ineffective assistance may be a tempting ground of appeal for prisoners who find themselves frustrated with the outcome of their trial and interested in “get[ting] the Court’s attention” with their Notice of
Appeal.5 As described by Doherty J.A. in R. v. Archer, “[l]ooking backwards through the bars of a jail cell is not the most reliable of vantage points from which to see events that culminated in the conviction.”6 However, such miscarriages do occur7and it is important for the Court to have practices in place that militate against such ineffectiveness, as well as combatting the “tendency not to believe” inmates— many of whom are telling the truth.8
In response, Nova Scotia is one of several jurisdictions in Canada to have developed a protocol for addressing allegations of ineffective assistance of counsel.
4 Lawyers’ Insurance Association of Nova Scotia, “ALLEGATIONS OF INEFFECTIVE TRIAL COUNSEL IN A CRIMINAL APPEAL”, LIANSWERS, (September 2012). 5 C. Brown, personal communication (verbal), June 6, 2017. 6 R. v. Archer, [2005] O.J. No. 4348 at para 142, 202 C.C.C. (3d) 60 (Ont. C.A.). 7 R. v. Fraser, 2010 NSCA 106; R. v. Ross, 2012 NSCA 56. 8 C. Bourgeois, personal communication (verbal), May 2017. 8
This paper examines and compares the protocols, practice directives, and other approaches of Nova Scotia, New Brunswick, Prince Edward Island, Quebec,
Ontario, Manitoba, Saskatchewan, British Columbia, the Yukon and the Federal
Court for addressing claims of ineffective assistance of counsel, including analysis of jurisprudence from each jurisdiction. The approaches vary in detail and prescription of the process, but together all of them emphasize the importance of having a formal process in place for dealing with appeals based on ineffective assistance of trial counsel, both to mitigate the harm of frivolous claims (reputational harm for trial counsel, and resource strain for the Court and Crown) and to ensure that valid claims proceed.
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ANALYSIS
1. INEFFECTIVE ASSISTANCE OF COUNSEL: OVERVIEW OF SCC JURISPRUDENCE
The law regarding the appropriate approach to a claim of ineffective assistance of counsel is well-settled in Canada. It was adopted from the American case of
Strickland v. Washington, 466 U.S. 668 by the Supreme Court of Canada (SCC) in its 2000 decision, R. v. G.D.B.9,10 Although ineffective assistance claims are challenging for Canadian appellate courts (leading to the development of formal protocols or practice directives in most Canadian jurisdictions), the SCC has repeatedly affirmed that R. v. G.D.B. remains good law.11 Moreover, as Ives notes:
“[t]here is very little [academic] commentary on the right to effective assistance of counsel in Canada, a situation that has remained relatively constant despite growing concern over the past decade in virtually every province about the adequacy of government funding for legal aid in criminal cases.”12 A brief overview of the SCC jurisprudence concerning claims of ineffective assistance is helpful in contextualizing the challenges of such claims.
9 Strickland v. Washington, 466 U.S. 668 (USSC 1984). 10 R. v. G.D.B., 2000 SCC 22. 11 R. v. Meer, 2016 SCC 5; R. v. W.E.B., 2014 SCC 2; R. v. G.M., 2013 SCC 24. 12 Dale E. Ives, “The ‘Canadian’ Approach to Ineffective Assistance of Counsel Claims” (2004) 42 Brandeis L.J. 239 at 240. 10
Major J. outlines the appropriate approach to appeals of ineffective assistance of trial counsel in R. v. G.D.B.:
The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O’Connor J. The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have bene the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised. In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. 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. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow.13
The test is, therefore, two-pronged: an appellant must (1) demonstrate the facts proving incompetence on the part of trial counsel on a balance of probabilities, and
(2) show that such incompetence resulted in a miscarriage of justice.14,15 The facts establishing the incompetence of counsel are referred to as the “performance
13 R. v. B(G.D.), 2000 SCC 22 at paras. 26-29. 14 R. v. B(G.D.), 2000 SCC 22 at paras. 26-29. 15 R. v. G.K.N., 2016 NSCA 29 at para. 41. 11 component” of the test, and the “prejudice component” of the test refers to the appellant’s burden of demonstrating that the incompetence of trial counsel resulted in a miscarriage of justice. Both elements are required. Courts “will generally first decide whether a miscarriage has occurred” and, in the absence of evidence of a miscarriage, “the question of counsel’s performance [will] not arise.”16,17
The burden on the appellant to establish a claim of ineffective assistance is significant, as described by the BCCA in R. v. Jim:
[T]his is a ground of appeal that will usually be difficult to successfully establish. This is so because of the wide latitude properly afforded to counsel in deciding on appropriate trial strategy and conduct. It is all too easy to be wise after the event. Something different or more might often be considered appropriate in hindsight but that is not the test. These matters must be approached with realism and it must be established that the alleged defect was serious and of a nature that established a real possibility of prejudice in the result of the trial.”18
The appellant bears the burden of demonstrating both incompetence on the part of trial counsel, measured according to a reasonableness standard, as well as proving
“that counsel’s ineffective representation caused a miscarriage of justice.”19 There is a strong presumption in favour of trial counsel’s competence, and appellate courts will look to the whole of trial counsel’s performance, if necessary. Ives explains:
16 R. v. G.K.N., 2016 NSCA 29 at para. 43. 17 R. v. B(G.D.), 2000 SCC 22 at para. 29. 18 R. v. Jim, 2003 BCCA 411 at para. 12. 19 R. v. Gogan, 2011 NSCA 105 at para. 29. 12
“isolated strategic or tactical decisions are unlikely to be characterized as incompetent representation.”20
Fresh evidence will be received by appellate courts for the purposes of demonstrating incompetence of trial counsel “where it shows that counsel’s conduct fell below the standard of reasonable professional judgment and a miscarriage of justice resulted.”21 Section 683(1)(d) of the Criminal Code “authorizes the Court of
Appeal to receive fresh evidence in the ‘interests of justice.’”22,23 In order to meet the test for admission, fresh evidence must be “(a) relevant to an issue before the
Court, (b) credible, and (c) sufficient (if uncontradicted) to warrant the making of the order sought.”24,25
As described above, the test for appeals based on ineffective assistance of counsel was derived from the United States Supreme Court’s (USSC) approach in
Strickland v. Washington and adopted by the SCC with very little discussion.26,27
20 Dale E. Ives, “The ‘Canadian’ Approach to Ineffective Assistance of Counsel Claims” (2004) 42 Brandeis L.J. 239 at 253-254. See also: R. v. C.D.C., 2001 NSCA 175. 21 R. v. Wolkins, 2005 NSCA 2 at para. 61. 22 R. v. Ross, 2012 NSCA 56 at para. 23. 23 Criminal Code, R.S.C. 1985, c. C-46, s. 683(1)(d). 24 R. v. Dreaver, 2014 SKCA 133 at para. 33.
25 For a discussion of the application of Palmer and United States of America v. Shulman where an appellant alleges incompetent trial counsel, see: R. v. Wolkins, 2005 NSCA 2 and R. v. Ross, 2012 NSCA 56 at paras. 23-29.
26 Strickland v. Washington, 466 U.S. 668 (1984). 27 Charles B. Davison, “Importing Strickland: Some Concerns in Light of the Supreme Court’s Adoption of the American Test for Ineffective Counsel” Criminal Reports 2000 at 1.
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The Strickland test had already been in use by several Canadian appellate courts at the time of G.B.D.28 The two-part test from Strickland was first used by the ONCA in R. v. Garofoli, [1988] O.J. No. 365, 27 O.A.C. 1 (Ont. C.A.) and was subsequently adopted by the ONCA as a practice (see, notably, R. v. Joanisse, [1995] O.J. No.
2883, 102 C.C.C. (3d) 35 (Ont. C.A.)). The test was subsequently employed in appellate courts across Canada, including: Nova Scotia (R. v. Sarson, [1992] N.S.J.
No. 395, 115 N.S.R. (2d) 445 (NSCA)), Newfoundland, New Brunswick, Manitoba,
Saskatchewan, Alberta and British Columbia, prior to its adoption by the SCC in R. v. G.D.B.29 Even so, the SCC’s decision was criticized by contemporary commentators as being too brief, based on the lack of analysis of existing Canadian case law and commentary, and the absence of an explanation as to why the American test was appropriate in Canada.30
The SCC has heard three appeals involving ineffective assistance of counsel since G.D.B.: R. v. G.M.,31 R. v. W.E.B.,32 and R. v. Meer.33 Neither G.D.B. nor any
28 Charles B. Davison, “Importing Strickland: Some Concerns in Light of the Supreme Court’s Adoption of the American Test for Ineffective Counsel” Criminal Reports 2000 at 1. 29 Dale E. Ives, “The ‘Canadian’ Approach to Ineffective Assistance of Counsel Claims” at 239- 240. 30 Dale E. Ives, “The ‘Canadian’ Approach to Ineffective Assistance of Counsel Claims” (2004) 42 Brandeis L.J. 239 at 240. 31 R. v. G.M., 2013 SCC 24. 32 R. v. W.E.B., 2014 SCC 2. 33 R. v. Meer, 2016 SCC 5. 14 of the subsequent appeals based on ineffective counsel at the SCC have successfully made out claims of ineffective assistance.
R. v. G.M., 2013 SCC 24
R. v. G.M., 2013 SCC 24 was an appeal from the Newfoundland and Labrador Court of Appeal (NLCA), by way of a dissenting opinion from Hoegg J.A.. The issue on appeal before the NLCA was “whether counsel for G.M. failed to provide effective assistance at trial such that a miscarriage of justice resulted.”34 A majority of the
Court of Appeal allowed the appeal from the accused’s conviction of incest and sexual assault, based on ineffective assistance of counsel. Specifically, the majority held that defence counsel’s inexperience led to a series of omissions and decisions that “undermine[d] the reliability of the verdict, resulting in a miscarriage of justice and requiring a new trial.”35
In dissent, Hoegg J.A. found that the appellant had not met the significant burden of establishing a miscarriage of justice:
Justice Major states in G.D.B., supra, that a miscarriage of justice can be said to have occurred when the reliability of a trial’s result may have been compromised, and that such a conclusion rests upon an assessment of what happened at trial. This assessment involves determining whether there is probity in the proffered fresh evidence, and if so, when that probity is considered with the trial evidence, whether it could reasonably be expected to
34 R. v. G.M., 2012 NLCA 47 at para. 10. 35 R. v. G.M., 2012 NLCA 47 at para. 58. 15
have affected the trial result such that the reliability of the trial is called into question. In my view, the majority decision that there has been a miscarriage of justice in this case sets an unacceptably low standard for an appellate court to interfere with a properly-rendered trial decision. If the trial judge’s decision in this case is unreliable due to the absence of the ‘fresh evidence’ proffered by G.M., then I can see almost no basis for ever denying a fresh evidence appeal and ordering a new trial. Such a low standard undermines the integrity of our criminal trial process.36
Furthermore, regarding the performance component, she held that “[e]ven if he could be said to be in some way responsible for the omissions to call [certain witnesses], his decisions not to do so would be the result of reasonable professional judgment.”37 The SCC allowed the appeal, adopting the dissenting reasons of Hoegg
J.A without further comment.38
R. v. W.E.B., 2014 SCC 2
R. v. W.E.B., 2014 SCC 2 was an appeal from a judgment of the Ontario Court of
Appeal (ONCA), in which the ONCA upheld the appellant’s conviction of sexual assault, sexual touching, and invitation to sexual touching.39 The sole issue on appeal was ineffective assistance of counsel. The appellant argued that his trial
36 R. v. G.M., 2012 NLCA 47 at paras. 65-66. 37 R. v. G.M., 2012 NLCA 47 at para. 131. 38 R. v. G.M., 2013 SCC 24 at para. 1. 39 R. v. W.E.B., 2014 SCC 2. 16 counsel was incompetent “on a number of grounds, the most serious being that she prevented him from testifying at trial.”40 The SCC stated of the ONCA’s reasoning:
While the court did not specifically address all of the appellant’s many, and continually growing list of ineffective assistance claims, it found that they either lacked an evidentiary foundation or did not result in prejudice. In so concluding, the court carefully considered the record at trial, along with the fresh evidence filed on the appeal, and applied the correct legal principles. It made findings of fact based on this record. In making these findings, the Court of Appeal acted as a court of first instance. Its findings, like those of a trial judge, are entitled to deference.41
The SCC found no error in the ONCA’s analysis, and dismissed the appeal. As in R. v. G.M., the SCC did not comment on the applicable legal principles, beyond stating that the ONCA had applied them correctly.
R. v. Meer, 2016 SCC 5
R. v. Meer, 2016 SCC 5 was an appeal from the Court of Appeal of Alberta (ABCA), by way of a dissenting opinion from Berger J.A. The ABCA confirmed the appellant’s conviction for arson, extortion, obstruction of justice, and conspiracies to commit arson, extortion, obstruction of justice, and assault.42 In dissent, Berger
J.A. found that trial counsel had been “woefully incompetent” and that it could not
“be safely concluded that the appellant received a fair trial.”43
40 R. v. W.E.B., 2014 SCC 2 at para. 1. 41 R. v. W.E.B., 2014 SCC 2 at para. 2. 42 R. v. Meer 2015 ABCA 141 at para. 1. 43 R. v. Meer, 2016 SCC 5 at para. 1; R. v. Meer 2015 ABCA 141 at para. 153. 17
Again, the SCC’s comments were brief. The SCC dismissed the appeal, stating: “While the Court of Appeal addressed a wide range of issues, we need comment only on one: we are not persuaded that there was any miscarriage of justice in any of its forms in this case.”44 The SCC held that although Berger J.A. found that trial counsel’s incompetence had a bearing on the trial, he “did not indicate how the instances which he identified of counsel’s incompetence had occasioned a miscarriage of justice.” 45
Berger J.A. argued that the incompetence of trial counsel was such that the trial was procedurally unfair, resulting in a miscarriage regardless of the result of the trial. Relying on Major J.’s statement in R. v. G.D.B. that “[i]n some instances counsel’s performance may have resulted in procedural unfairness,”46 Berger argued that “if incompetence of counsel is made out on a reasonableness standard, a miscarriage of justice may result from either a compromise to ‘the reliability of the trial’s result’ or procedural unfairness [emphasis in original].”47 This aspect of the law of ineffective assistance had been subject to commentary since the G.D.B. decision was released. 48,49 Some commentators have interpreted the SCC’s decision
44 R. v. Meer, 2016 SCC 6 at para. 3. 45 R. v. Meer, 2016 SCC 6 at para. 2. 46 R. v. G.D.B., 2000 SCC 22 at para. 28. 47 R. v. Meer, 2015 ABCA 141 at paras. 123-124. 48 Charles B. Davison, “Importing Strickland: Some Concerns in Light of the Supreme Court’s Adoption of the American Test for Ineffective Counsel” Criminal Reports 2000 at 3. 49 Katya Bogdanov, “R. v. Meer: the Trouble with Bad Lawyers”, Case Comment at 3 (2016) TheCourt.ca. 18 in Meer to mean that “as long as the ultimate trial result was fair, no remedy is necessary.”50 However, appellate courts across Canada continue to look to procedural unfairness caused by ineffective assistance in the G.D.B. analysis. For example, in R. v. Hamzelhali, the BCCA recently stated: “even if the outcome in this case was reliable, which I reach no conclusion on, the process through which the verdict was reached was unfair.”51 Meer suggests, therefore, that in analyses of procedural unfairness caused by ineffective counsel (and resulting in a miscarriage of justice), counsel’s deficiencies should be identified and linked to the ways in which poor performance detracted from or undermined the fair process of the trial.
In summary, the SCC jurisprudence on ineffective counsel is relatively thin.
In response (and because the SCC adopted the American approach in Strickland wholesale), commentators have read other aspects of the American approach into
Canadian law, including using professional codes of conduct for lawyers to analyse counsel’s “reasonable” professional conduct.52 In the absence of more detailed guidance from the SCC, commentators have called for the development of protocols and practice directives:
As presently structured the professional codes and rules often do not provide detailed guidance on many of the issues that are raised in ineffective assistance
50 Katya Bogdanov, “R. v. Meer: the Trouble with Bad Lawyers”, Case Comment at 3 (2016) TheCourt.ca. 51 R. v. Hamzehali, 2017 BCCA 290 at para. 89. 52 Dale E. Ives, “Failure to Interview a Potential Defence Witness as the Basis for an Ineffective Assistance of Counsel Claim” Criminal Law Quarterly 2007 at 4. 19
appeals. Appellate courts should therefore actively encourage the creation, adoption and enforcement of specific and more detailed criminal justice standards.53
Most provincial appellate courts have developed and adopted protocols for addressing such appeals and their associated challenges, including practical aspects of the process such as waiver of solicitor-client privilege—upon which the SCC has not commented.
53 Dale E. Ives, “Failure to Interview a Potential Defence Witness as the Basis for an Ineffective Assistance of Counsel Claim” Criminal Law Quarterly 2007 at 4. 20
2. INEFFECTIVE ASSISTANCE PROTOCOLS & JURISPRUDENCE IN
CANADA
This report provides a comparative analysis of the various protocols, practice directives, and approaches of 10 appellate courts across Canada: Nova Scotia; New
Brunswick; Prince Edward Island; Quebec; Ontario; Manitoba; Saskatchewan;
British Columbia; the Yukon; and the Federal Court. […]
2.1 Nova Scotia
The Nova Scotia Court of Appeal (NSCA) protocol, “Protocol for Appeal
Proceedings Involving Allegations of Ineffective Trial Counsel” (Appendix B) (“the
NSCA protocol”), was instated in 2012.54 It was developed in consultation with the
NS Bar and in response to the “huge challenge” of such appeals, as described by
Chief Justice Michael MacDonald: “We felt it necessary to establish a protocol so that everyone knows the rules and that there are no surprises come the day of the appeal.” 55,56 The protocol consists of a preamble and a six-step process.
54 Nova Scotia Court of Appeal, “Protocol for Appeal Proceedings Involving Allegations of Ineffective Trial Counsel.” 55 Donalee Moulton, “NS appeal court develops protocol for criminal appeals” Canadian Lawyer (March 2017) at 7.
56 The NSCA Protocol for Appeal Proceedings Involving Allegations of Ineffective Trial Counsel has also been employed by the Nova Scotia Supreme Court (NSSC), notably in R. v. Allison, 2016 NSSC 192. 21
Preamble
The preamble begins by emphasizing the duty on the part of appellate counsel (if involved) to “undertake an assessment of the merits of the allegations against trial counsel prior to raising these issues in the Notice of Appeal.”57 The acknowledgement in this provision that appellate counsel may not be involved is the only mention in the protocol of the possibility of self-represented appellants; prisoner appellants58 are not specifically addressed. The preamble further notes that the process often involves giving trial counsel notice of the allegations and allowing for a reasonable amount of time for trial counsel to respond. No set requirement is given for notifying trial counsel prior to filing the Notice of Appeal, and no timeline is dictated for reasonable notice. Finally, the preamble references relevant NSCA jurisprudence.59
Protocol
The NSCA protocol is driven by the Registrar. The role of the Registrar is outlined in the first two stages of the protocol. The Registrar reviews all Notices of Appeal.
57 Nova Scotia Court of Appeal, “Protocol for Appeal Proceedings Involving Allegations of Ineffective Trial Counsel.”
58 For the purposes of this report, the term “prisoner appellants” is used to refer to all appellants who are incarcerated during their appeals. This report specifically notes throughout when referring to prisoner appellants who are self-represented.
59 R. v. West, 2009 NSCA 63; R. v. West, 2009 NSCA 94; R. v. Hobbs, 2009 NSCA 90; and R. v. Fraser, 2012 NSCA 106. 22
In doing so, she attempts to discern whether allegations of ineffective trial counsel are being made. Such allegations are not always explicit in Notices of Appeal, and, therefore, the protocol provides that “if Crown counsel becomes aware that an
Appellant is raising such issues they will notify the Registrar.”60,61
Once grounds of appeal including allegations of ineffective trial counsel are identified, a letter (Appendix C) enclosing a copy of the Notice of Appeal is sent to that counsel and copied to all parties to the appeal. The Lawyer’s Insurance
Association of Nova Scotia (LIANS) is also notified at this stage, either by the
Registrar or by the Crown.62
The protocol also states that the Registrar shall report the matter to the motions judge, “who, upon review of the file, may recommend to the Chief Justice that an appeal management Judge be appointed under Rule 90.45.”63 Case management is, therefore, conducted on a discretionary basis for appeals involving allegations of ineffective assistance of counsel. There is “no particular trend” at the NSCA for case management in these cases.64 Upon notification by the Registrar, motions judges
60 C. McInnes, personal communication (verbal), May 2017. 61 Nova Scotia Court of Appeal, “Protocol for Appeal Proceedings Involving Allegations of Ineffective Trial Counsel.” 62 S. Gerrard, personal communication (verbal), May 31 2017. 63 Civil Procedure Rules of Nova Scotia, r. 90.45. 64 C. Brown, personal communication (verbal), June 6, 2017. 23 exercise discretion on a case-by-case basis to provide the appellant with further information, sent by the Registrar.65
The NSCA protocol emphasizes the importance of keeping trial counsel apprised of the allegations and progress of the appeal: “Trial counsel should be provided with copies of correspondence or documents file with the court with respect to the motion for date and directions.”66 The protocol provides instructions for trial counsel who may wish to participate in the proceeding: “[i]n particular, they should advise the court with respect to whether they intend to make any motions or file affidavit evidence.”67 LIANS’s practice is to have trial counsel provide affidavit evidence in response to every allegation of ineffective assistance filed before the
NSCA.68
Per the NSCA protocol, trial counsel against whom the allegations have been made has the option to seek intervenor status on appeal. Intervention of trial counsel in appeals involving allegations of ineffective assistance is permitted on a discretionary basis, with reference to relevant factors in a given case, such as: trial
65 C. McInnes, personal communication (verbal), May 2017. 66 Nova Scotia Court of Appeal, “Protocol for Appeal Proceedings Involving Allegations of Ineffective Trial Counsel.” 67Nova Scotia Court of Appeal, “Protocol for Appeal Proceedings Involving Allegations of Ineffective Trial Counsel.”
68 LIANS’s process is discussed in further detail in section 3.3 of this report. 24 counsel’s interest in the appeal; considerations of efficiency and delay; and trial counsel’s role in assisting the Court.69,70 This issue of whether to grant intervenor status to trial counsel represents a difficult balancing of the integrity of the adversarial system with the reputational interests of the impugned counsel, and counsel’s right to defend himself or herself. This conflict is explored in R. v. Ross,
2012 NSCA 8 at paras. 9-22, and in R. v. Fraser, in which the Court stated:
[I]t is trite to say that as a general principle in our adversarial system of justice only the actual parties to the litigation may make written or oral submissions or otherwise participate in legal proceedings before any court or tribunal. Where the proceeding is criminal, there is a heightened concern about the fairness of permitting intervention lest the accused end up, in effect, facing two prosecutors.71
This “heightened concern” is reflected in the provincial protocols. Several protocols across Canada address the process of seeking intervenor status.
With respect to waiver, the Nova Scotia protocol states that if trial counsel’s response to the allegations “involves the disclosure of information that is potentially subject to solicitor-client privilege the Court may be asked to provide direction as to
69 R. v. Fraser, 2010 NSCA 106 at paras. 7-18.
70 For further discussion of the problems associated with granting intervenor status to trial counsel in ineffective assistance claims, see R. v. B.P., 2010 ABQB 204. See also: Alice Woolley, “Lawyer, Not Intervenor”, Case Comment on R. v. B.P., 2010 ABQB 204, (2010) ABLawg, online: < https://ablawg.ca/2010/05/10/lawyer-not-intervenor/>.
71 R. v. Fraser, 2010 NSCA 106 at para. 7. 25 whether the appellant’s allegations are sufficient to constitute a waiver of privilege.”72 Waiver is, therefore, addressed on a case-by-case basis.
NSCA Process
Each inmate has a case management officer73 who liaises with the Court on behalf of prisoners. The Registrar of the Court will mail or fax forms to the case management officer for the prisoner, or, depending on the circumstances and institution, sometimes the documents may be mailed to the prisoner directly. If a prisoner has questions or is in need of clarification about what is required for their appeal, the Registrar will most often be contacted by a case management officer. In some situations, the prisoner may call the Court directly, seeking clarification. The
Registrar provides prisoner appellants who contact her with the information they are seeking, as requested.74 Prisoner appellants’ Notices of Appeal are faxed from the prison to the Registrar. Forms are downloaded from http://www.courts.ns.ca/ and provided to prisoners by case management officers. In some situations, case management officers may telephone the Registrar for forms or clarification.
72Nova Scotia Court of Appeal, “Protocol for Appeal Proceedings Involving Allegations of Ineffective Trial Counsel.”
73 Different terms are used to refer to this role, depending on the correctional facility. E.S., former staff member at the Nova Institution for Women, noted for the purposes of this report that case management officers were not present at the prison every day, and that sometimes—particularly for inmates serving longer sentences—there could be long delays between meetings prisoners meetings with case management officers. 74Ms. McInnes noted that calls from prisoners to the Registrar are infrequent. 26
Allegations of ineffective counsel in prisoner appellants’ Notices of Appeal are sometimes implicit or otherwise not clearly framed. If the Registrar misses such an allegation, the Crown will generally catch them and notify both the Registrar and trial counsel. This is provided for in the NSCA protocol.75 The Registrar will sometimes provide a memo to the chambers judge to let him or her know that this has happened, depending on the situation.
In addition to notifying trial counsel against whom the allegation was made, the Registrar notifies the trial judge, in writing (Appendix D), sends a written request for the lower court file (Appendix E), and notifies the Crown of the prisoner appeal
(Appendix F), reminding the Crown of its responsibility to make the necessary
Chambers Motion to have the appeal set down for hearing, and of the requirement of a Certificate of Readiness.
The Registrar sends a standard form letter (Appendix G) to the self- represented inmate appellant confirming the filing of the appeal, and encouraging the appellant to seek Legal Aid representation. Legal Aid forms are available through the case management officer, and are also sent to appellants upon the filing of the Notice of Appeal by Nova Scotia Legal Aid (NSLA).76 In prisoner appeals,
75 Ms. McInnes and Ms. Brown both indicated that grounds of appeal can be difficult to discern from the Notices of Appeal, when they come from prisoner appellants. 76 C. McInnes, personal communication (verbal), May 2017. 27 the appellant has no obligations at the start of the appeal beyond applying for Legal
Aid; the Crown assembles and bears the expense of the appeal book, and the
Registrar serves everyone involved on behalf of the prisoner.77
The letter from the Registrar to the prisoner appellant also outlines that it is possible, upon application and exhaustion of appeal remedies within NSLA, to make a motion requesting state-funded legal counsel pursuant to section 684 of the
Criminal Code.78 The letter states that the process will be discussed together with the judge in teleconferences. Caroline McInnes, Registrar of the NSCA, explained in consultation that previously, inmates were sent information regarding Legal Aid representation and section 684 forms and information at the same time, upon filing their Notices of Appeal. However, the Court found that this confused inmates, who sometimes filled out the wrong form (or both forms at the same time) or lost information and required it to be re-sent.79 Currently, inmate appellants are first sent information about the Legal Aid process. NSLA receives applications for Legal Aid and completes its merits assessment, which generally takes one to three months.80 If
Legal Aid is denied, the Chambers Judge learns about it in telechambers. At that point that inmates are sent section 684 resources. Upon request by the chambers
77 C. McInnes, personal communication (verbal), May 2017. 78 Criminal Code, R.S.C. 1985, c. C-46, s. 684. 79 C. McInnes, personal communication (verbal), May 2017. 80 The merits assessment process and timeline is discussed in further detail in section 6.2 of this report. 28 judge, the Registrar sends out an additional information package to inmates regarding section 684, comprised of: a letter explaining section 684 (Appendix H), materials for filing a Notice of Motion (Appendix I) and Affidavit (Appendix J), and a plain-language guide for making a motion for state-appointed counsel (Appendix
K).81
In addition, the Registrar sets up a teleconference, typically around a month after the Notice of Appeal.82 The teleconference includes the Chambers Judge, the prisoner, Legal Aid (if the prisoner does not have legal representation), LIANS, and the Crown.
Following this teleconference, the Registrar of the NSCA may send additional information to the appellant, upon request by the presiding chambers judge or by the appellant directly. Such information about ineffective representation is not sent to prisoners by the Registrar as a matter of course—only by request.83 A recent example of one such letter providing further information about what is required for an appeal based on ineffective assistance is appended (Appendix L).84
81 See also: R. v. Ross, 2012 NSCA 65; R. v. Hobbs, 2009 NSCA 90.
82 This practice was introduced as a recommendation from a 2008/2009 report on delays in prisoner appeals, in which the committee found there were significant delays in the Legal Aid application process. It has been a positive improvement on the process.
83 C. McInnes, personal communication (verbal), May 2017. 84 Note that this example letter was provided for a child protection appeal. 29
2.2 Newfoundland and Labrador
The Court of Appeal of Newfoundland and Labrador (NLCA) does not have a protocol or practice directive addressing ineffective counsel. I spoke with Michael
Collins, Legal Research Officer at the NLCA, and he advised that the NLCA had a
“small epidemic” of ineffective assistance claims a couple of years ago, but that they have since subsided. He explained that there was conversation within the NLCA during that period about developing a protocol and he believed they may have had one in place then, but there is no such directive in place at present.85
2.3 New Brunswick
The New Brunswick Court of Appeal (NBCA) noted the need for a protocol to address allegations of ineffective trial counsel in Gardiner v. R.: “Grounds of appeal based on the ineffectiveness of legal representation have been the subject of several decisions of our Court, which has gone so far as to adopt a protocol for appeals involving such allegations.”86 Its protocol, “Protocol for Appeal Proceedings
Involving Allegations of Ineffective Counsel in First Instance / Protocole Relatif aux
Appels Comportant des Allégations de Représentation Inefficace par un Avocat en
85 M. Collins, personal communication (verbal), August 2017. 86 Gardiner v. R., 2016 NBCA 27 at para. 2. 30
Première Instance” (Appendix M), was instated February 2014. Its format and content are nearly identical to those of the NSCA protocol.
Protocol
Consistent with the NSCA protocol, the NBCA protocol allows for discretionary case management, is driven by the Registrar, and emphasizes ensuring that trial counsel is informed early and involved in the process. The NBCA protocol emphasizes the duty on the part of appellate counsel (if present) to ensure that claims are of ineffective assistance of trial counsel are founded before pursuing them. Like the NSCA protocol, this is the only mention in the protocol of the possibility of self- represented appeals. No explicit directions are given for self-represented prisoner appellants.
The protocol differs in that it references New Brunswick case law in place of
Nova Scotian.87 In terms of waiver, the NBCA protocol states that if disclosure of potentially privileged information is required, “a motion for directions regarding waiver of privilege would be expected.”88 This is subtly different from the wording in the NSCA protocol, which states that if disclosure is required “the Court may be
87 Including: H.S.K. Sr. v. R., 2000 NBCA 54; A.S. v. R., 2006 NBCA 5; Tanasichuk v. R., 2007 NBCA 76; Lavoie v. R., 2010 NBCA 52; Price v. R., 2010 NBCA 84; and Gardiner v. R., 2010 NBCA 46. 88 New Brunswick, “Protocol for Appeal Proceedings Involving Allegations of Ineffective Counsel in First Instance / Protocole Relatif aux Appels Comportant des Allégations de Représentation Inefficace Par un Avocat an Première Instance”, (February 2014). 31 asked to provide direction as to whether the appellant’s allegations are sufficient to constitute a waiver of privilege.”89 It is unclear from the case law whether this waiver provision differs in application from that of the NSCA, but both protocols are flexible in terms of the Courts’ roles with respect to waiver. Neither the NBCA nor
NSCA protocols provide a set form or requirements for waiver in the protocols themselves.90,91
2.4 Prince Edward Island
The Prince Edward Island Court of Appeal (PECA) “Protocol for motion for fresh evidence on appeal involving an allegation of ineffective or incompetent trial counsel” (Appendix N) follows the same format and contains a similar preamble and wording to the NSCA protocol. The preamble of the PECA protocol is nearly the same as the NSCA protocol: it describes ineffective counsel as a ground of appeal with reference to R. v. G.D.B., and describes the fresh evidence motion process, including trial counsel’s usual involvement by way of providing affidavit evidence responding to allegations.
89Nova Scotia Court of Appeal, “Protocol for Appeal Proceedings Involving Allegations of Ineffective Trial Counsel.”
90 The NBCA Protocol was employed and discussed in Robichaud v. R., 2014 NBCA 1, in which its efficiency in assisting Court process is demonstrated. 91 See also: Smith v. R., 2012 NBCA 99. 32
The preamble differs from the NSCA protocol in that it does not mention the responsibility on the part of appellate counsel to ensure claims of ineffective trial counsel are meritorious prior to filing. There is no acknowledgment in the PECA protocol of the possibility that an appellant may be self-represented. The PECA protocol also differs in that it references the onus on the appellant: “The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of professional judgment.”92 Unlike the NSCA protocol, the PECA protocol does not reference relevant provincial case law.
Protocol
Notices of Appeal are reviewed by the Deputy Registrar, who searches for allegations of ineffective trial counsel. Consistent with the NSCA protocol, Crown counsel is called upon to notify the Deputy Registrar of allegations of ineffective counsel that may have been missed. Once such allegations are identified, the Deputy
Registrar forwards the Notice of Appeal to trial counsel. Thus, consistent with NS, trial counsel is notified and involved early in the process.
Consistent with the NSCA protocol, under the PECA protocol the Deputy
Registrar notifies the Chief Justice of appeal proceedings involving allegations of ineffective trial counsel, who may assign a case management judge on a
92 “Practice Directions: Prince Edward Island Court of Appeal” at para 6(e). 33 discretionary basis. Additionally, the PECA protocol states that such directions
“could be preceded by an inquiry about whether the Court should assign legal assistance for the appellant pursuant to Criminal Code s. 684.”93 This represents a proactive approach to the section 684 process that is unique to the PECA.
Consideration of section 684 is not explicitly mentioned in the NSCA protocol and, in fact, section 684 is not addressed until the later stages of the NSCA process.
Trial counsel’s involvement is prioritized, as the PECA protocol provides that the Deputy Registrar will provide a copy of the motion for fresh evidence to trial counsel, with all correspondence and documents filed pertaining to the proceedings at the Court of Appeal. Like in the NSCA protocol, trial counsel must advise the court “whether they intend to file affidavit evidence or respond otherwise to the appellant’s motion for fresh evidence.”94 Trial counsel has the option of applying for intervenor status on appeal.
Regarding waiver, the PECA protocol states: “Should the response of trial counsel involve disclosure of potentially privileged information, counsel should bring a motion for directions regarding waiver of privilege sought.” 95 In this respect,
93 “Practice Directions: Prince Edward Island Court of Appeal” at para 6(e). 94 “Practice Directions: Prince Edward Island Court of Appeal” at para 6(e). 95 “Practice Directions: Prince Edward Island Court of Appeal” at para 6(e). 34 the NSCA protocol—which states that “the Court may be asked”—is more flexible.9697
2.5 Quebec
The Court of Appeal of Quebec’s (QCCA) approach to appeals involving allegations of ineffective assistance of trial counsel is robust: the Rules of the Court of Appeal of Quebec in Criminal Matters address allegations of professional incompetence; parties involved in such appeals are required to complete a mandatory “Form for the
Management of an Appeal Alleging Incompetence of Trial Counsel”; and, furthermore, the QCCA disposes of frivolous appeals alleging incompetent trial counsel through regular use of the leave requirement in section 675(1)(a)(iii) of the
Criminal Code.98
Rules
Section 26 of the QCCA’s Rules of the Court of Appeal of Quebec in Criminal
Matters (Appendix O) lays out the Court’s approach to allegations of professional incompetence.99
96Nova Scotia Court of Appeal, “Protocol for Appeal Proceedings Involving Allegations of Ineffective Trial Counsel.” 97 See also: R. v. Chappell, 2012 PECA 10; R. v. Bradley, 2007 PESCAD 23. 98 Criminal Code, R.S.C. 1985, c. C-46, s. 675(1)(a)(iii). 99 Rules of the Court of Appeal of Quebec in Criminal Matters, S.C. 2002, c. 13, s. 26. 35
First, an appellant alleging ineffective assistance is required to “notify the counsel by serving on [them] a copy of the written proceedings containing the allegation.”100 Consistent with several other provincial protocols, the QCCA approach includes an emphasis on keeping trial counsel apprised of the status of the appeal.
Regarding fresh evidence, the Rules state that if an appellant wishes to adduce evidence in support of the claim, the appellant is required to notify the Chief Justice in writing, and to provide copies to the Attorney General and to trial counsel, including details of the evidence “and the procedure the appellant proposes for taking the evidence.”101 The same applies to the Attorney General. If the Attorney
General wants to provide fresh evidence in response, they are required to notify the
Chief Justice in writing of the content of the evidence and manner proposed for its
“reception”, and to send copies to the appellant and to trial counsel. If the impugned trial counsel wants to respond, they are also required to notify the Chief Justice in writing “describ[ing] the means considered appropriate to present that counsel’s position” and to copy that notice to all parties to the appeal.102
100 Rules of the Court of Appeal of Quebec in Criminal Matters, S.C. 2002, c. 13, s. 26. 101 Rules of the Court of Appeal of Quebec in Criminal Matters, S.C. 2002, c. 13, s. 26. 102 Rules of the Court of Appeal of Quebec in Criminal Matters, S.C. 2002, c. 13, s. 26. 36
A case management process follows, during which “a Judge may attempt to have the parties agree on the means by which the evidence may be received as well as a timetable.”103 Case management is conducted on a mandatory basis for appeals involving allegations of ineffective assistance. Finally, the Rules state that the parties may make motions, as necessary, to determine whether the fresh evidence will be admitted for the purposes of the appeal.104
Form
In addition to its approach as set out in the Rules, since October 2014 the QCCA has employed a mandatory case management form that must be completed by the appellant and then by the respondent, when any Notice of Appeal or Motion for
Leave to Appeal is filed alleging the ineffective assistance of trial counsel (Appendix
P).105 Ideally, the form should be filed in conjunction “with the motion for leave to appeal or the notice of appeal, or if such is not possible, with the motion to adduce new evidence.”106 The completion of the form by all parties is mandatory. If the case
103 Rules of the Court of Appeal of Quebec in Criminal Matters, S.C. 2002, c. 13, s. 26. 104 Rules of the Court of Appeal of Quebec in Criminal Matters, S.C. 2002, c. 13, s. 26. 105 Court of Appeal of Quebec Notice “New form: Files in criminal matters alleging the professional incompetence of trial counsel” 21 October 2014. 106 Court of Appeal of Quebec, “Form for the Management of an Appeal Alleging the Incompetence of Trial Counsel”, (October 2014). 37 management form is not completed and filed within three days prior to a case management conference, proceedings may be suspending pending its filing.107
The form contains a series of 15 questions, some for the appellant and some for the respondent, to be completed by both parties (first by the appellant and then by the respondent) for the purposes of the case management conference. The form establishes in standardized and clear form the grounds of the appeal, and clarifies allegations that may have been unclear from the Notice of Appeal. Completion of the form is mandatory when allegations of ineffective assistance are made both explicitly and implicitly, thereby ensuring that implicit claims are clarified.
The questions on the form include: clarification of when and how trial counsel was informed of the allegations; whether trial counsel wishes to respond and how; the nature of the alleged incompetence; the content of the fresh evidence and associated process; the timetable of the appeal; and any other issues that have arisen with respect to the appeal.108
The form asks whether solicitor-client privilege has been waived, and whether such waiver was total or partial. If partial, the form clarifies “in what precise respect”
107 Court of Appeal of Quebec, “Form for the Management of an Appeal Alleging the Incompetence of Trial Counsel”, (October 2014). 108 Court of Appeal of Quebec, “Form for the Management of an Appeal Alleging the Incompetence of Trial Counsel”, (October 2014). 38 privilege was waived.109 The QCCA protocol, therefore, allows for partial waiver as necessary, but indicates no preference for partial over full. The form is useful in clarifying the exact nature of the appeal, including confirming, in detail, the nature of any waiver of solicitor-client privilege.
Neither the Rules nor the form contain any information or requirements specific to self-represented appellants alleging ineffective assistance. Both presume that appellate counsel is present.
Leave Requirement
Furthermore, the QCCA “has developed a different approach [from other provincial appellate courts], focused on the requirement that an appellant obtain leave to appeal.”110 This approach was outlined by the Ontario Crown in its submissions to the Supreme Court of Canada in R. v. W.E.B., 2014 SCC 2, a sexual assault case in which the sole ground of appeal was ineffective assistance of trial counsel.
The Ontario Crown submitted that the case was “a good representative example of the meritless ineffective assistance of counsel cases that are being raised in appellate courts across Canada with increased frequency,” and advocated to the
109 Court of Appeal of Quebec, “Form for the Management of an Appeal Alleging the Incompetence of Trial Counsel”, (October 2014). 110 R. v. W.E.B. 2014 SCC 2 (Factum of the Respondent at para. 62). 39
SCC for the approval of an approach emphasizing the leave requirement, as employed by the QCCA.111 The Ontario Crown explained:
The Crown submits that implementing a leave requirement as a screening mechanism would provide any appellant with a full opportunity to explain his complaints to the appellate courts without putting the Crown to the burden of responding (or trial counsel through a gratuitous cross examination) unless the appellant establishes a reasonable chance of success. This would go some way to reconciling the sometimes competing goals in the appellate process of allowing for full and fair review of convictions while at the same time promoting finality in an orderly and reasonably efficient process. 112
The Ontario Crown described the approach of the QCCA:
The Court has held that only those ineffectiveness allegations that meet the ‘arguable merit’ threshold should be granted leave and should justify a full fresh evidence process. The Quebec Court of Appeal has described s. 675(1)(a)(ii) and (iii) as being part of a ‘screening system’ for criminal appeals, “…which enables the verification at the outset of the seriousness of the grounds of appeal and the elimination of appeals that are pointless, improper, vexatious, or clearly unfounded.113
The QCCA described the “screening mechanism” for criminal appeals in R. v.
Duhamel, 2006 QCCA 1081:
Parliament has in fact instituted a screening system for appeals in criminal matters. There are two distinct aspects to this system. First, it sets out a mechanism requiring leave to appeal in certain cases […] which enables the verification at the outset of the seriousness of the grounds of appeal and the elimination of appeals that are pointless, improper, vexatious, or clearly unfounded. Second, for appeals that raise only grounds of law and are introduced by notice of appeal, it sets out the mechanism requiring the intervention of the registrar of the court of appeal (in this case, the Clerk of the Court) in s.685 [of the Criminal Code]. With regard to appeals lodged by
111 R. v. W.E.B. 2014 SCC 2 (Factum of the Respondent at para. 2). 112 R. v. W.E.B. 2014 SCC 2 (Factum of the Respondent at para. 66). 113 R. v. W.E.B. 2014 SCC 2 (Factum of the Respondent at para. 22). 40
convicted persons, this scheme is complete within itself, and there is no gap that requires completion.114
Through a more stringent use of this “screening system,” the Ontario Crown submitted, the QCCA limits the advancement of appeals on the grounds of ineffective counsel to only those with arguable merit. As described by the Ontario
Crown, the QCCA “relies on the leave to appeal requirements in the Criminal Code to weed out ineffectiveness claims that have no reasonable chance of success.” 115
The Criminal Code section upon which the QCCA relies is as follows:
675. (1) A person who is convicted by trial court in proceedings by indictment may appeal to the court of appeal (a) against his conviction (i) on any ground of appeal that involves a question of law alone, (ii) on any ground of appeal that involves a question of fact or a question of mixed law and fact, with leave of the court of appeal or a judge thereof or on the certificate of the trial judge that the case is a proper case for appeal, or (iii) on any ground of appeal not mentioned in subparagraph (i) or (ii), that appears to the court of appeal to be a sufficient ground of appeal, with leave of the court of appeal [emphasis added].116
114 R. v. Duhamel, 2006 QCCA 1081 at para. 11. 115 R. v. W.E.B. 2014 SCC 2 (Factum of the Respondent at para. 3). 116 Criminal Code, R.S.C. 1985, c. C-46, s. 675(1). 41
Regarding the leave requirement in section 675(1)(a)(iii), E.G. Ewaschuk explains:
“An accused convicted of an indictable offence may appeal his conviction as of right on a question of law, with leave on a question of fact or mixed law and fact, and with leave on any other sufficient ground of appeal.”117
Sopinka and Gelowitz describe s.675(1)(a)(iii) in The Conduct of an Appeal as a “residual jurisdiction to relieve against miscarriages of justice that do not strictly raise questions of law or fact.”118 The authors further note that “[t]he breadth of the appellate jurisdiction contained in section 675 of the Code reflects a general policy in favour of at least one level of appellate review of criminal convictions.”119
The Ontario Crown favoured the QCCA’s leave-centric approach, because, they argued: (1) it would be more cost-effective, as the fresh evidence process is expensive and onerous; (2) ineffectiveness claims would become more focused, as only reasonably arguable claims would be granted leave; and (3) it would be an easier process for trial counsel, as they would only be required to respond to reasonably arguable allegations. The SCC did not comment on the Ontario Crown’s
117 E.G. Ewaschuk, “Criminal Pleadings & Practice in Canada”, 2nd ed., vol. 3 (Thomson Reuters, 2017) (loose-leaf) ch. 23 at 19. 118 John Sopinka & Mark A. Gelowitz, The Conduct of An Appeal, 3rd ed. (Canada: LexisNexis Canada Inc., 2012) at 147. 119 John Sopinka & Mark A. Gelowitz, The Conduct of An Appeal, 3rd ed. (Canada: LexisNexis Canada Inc., 2012) at 147. 42 discussion of the QCCA’s approach regarding allegations of ineffective assistance, but confirmed the ONCA’s decision and dismissed the appeal.120
The Ontario Crown submitted a similar argument for the use of section
675(1)(a)(iii) to the Ontario Court of Appeal in the ineffective assistance appeal of
R. v. Graham, 2014 ONCA 566:
The Crown takes the position that […] whether by means of this court’s power to control its own process and/or by application of the leave requirement under s.675(1)(a)(iii) of the Criminal Code, this court should make a preliminary determination whether the appellant has demonstrated sufficient potential merit to his ineffective assistance claim so as to justify full compliance with the Protocol (including obtaining a responding affidavit from the appellant’s former trial counsel and conducting a cross-examination on that affidavit.121
In response, the Court stated:
The merits of an appellant’s ineffective assistance claim on appeal and of the Crown’s response to such a claim are matters to be determined by the panel hearing the appeal. It is not for this panel of this court, on a motion for directions in a single appeal, to change the established practice of the court […] The critical issue is to ensure that sufficient evidence is placed before the court in respect of an ineffective claim so as to permit the proper adjudication of the claim and to ensure fairness to all parties, including the trial counsel whose assistance at trial is impugned by an appellant […] we conclude that it is both unnecessary and inappropriate to make a preliminary determination on the merits of the appellant’s proposed ineffective assistance claim. [emphasis added].122
120 R. v. W.E.B., 2014 SCC 2 at para. 25. 121 R. v. Graham, 2014 ONCA 566 at para. 17. 122 R. v. Graham, 2014 ONCA 566 at paras. 28-29. 43
While this leave-centric approach has been used in Quebec for several years,123 the case law across Canada does not reflect a broad consideration or use of the leave requirement contained in section 675(1)(a)(iii) in the context of ineffective assistance appeals.124 2017 Martin’s Annual Criminal Code notes: “Local practice will dictate whether the question of leave needs to be spoken to independently of the appeal itself. In some jurisdictions grounds which technically require leave are simply argued as part of the appeal [emphasis added].”125 Furthermore,
Martin’s notes: “An accused may also appeal a ‘sentence’ (see s.673) unless the same is fixed by law. Leave of a judge or the court is required (subsec. (1)(b)). Local practice will again determine whether a separate hearing will be held.”126
Outside of Quebec, the only notable example of use of section 675(1)(a)(iii) in ineffective assistance appeals is by the Saskatchewan Court of Appeal, in the limited context of appeals to expunge guilty pleas entered due to ineffective assistance. It was applied in R. v. Short, 2012 SKCA 85; R. v. Chukuwu, 2016 SKCA
6; and R. v. Kim, 2011 SKCA 74. The Court in R. v. Kim stated:
Jurisprudence has established that a court of appeal may set aside a plea of guilty where it is satisfied that it is in the interests of justice to do so [citations
123 R. v. Gaudette, 2006 QCCA 1004 at paras. 46-55; R. v. Turner, 2008 QCCA 1904.
124 Although outside of the scope of this report, I note that that use of the leave requirement in section 675(1)(a)(iii) of the Criminal Code has not received ample consideration in Nova Scotia, nor indeed in Canada more generally.
125 2017 Martin’s Annual Criminal Code (Toronto: Thomson Reuters, 2016) at 1399. 126 2017 Martin’s Annual Criminal Code (Toronto: Thomson Reuters, 2016) at 1399. 44
omitted]. In the case before us, the appeal brought on this basis must fall within the right of appeal granted by s.675(1)(a)(iii), and therefore requires the leave of this Court. In the most general terms, in order to grant the appeal, expunge the guilty plea and order a new trial, the Court must be satisfied that it is in the interests of justice to do so. Where the guilty plea is shown to be invalid, the plea must be set aside on the grounds that there has been a miscarriage of justice. […] An accused represented by counsel is entitled to receive effective legal assistance pursuant to ss. 7 and 11(d) of the Charter. An appellant may therefore challenge a conviction on the basis that ineffective assistance of counsel occasioned a miscarriage of justice.127
The SKCA, therefore, requires the leave of the Court for appeals based on section
675(1)(a)(iii) of the Criminal Code, but such use is not widespread across Canada.
Outside of Quebec, and apart from the very narrow application in Saskatchewan, leave under section 675(1)(a)(iii) is generally under-emphasized in criminal decisions.
As noted by Martin’s and demonstrated by the SKCA case law discussed above, appellate courts apply the leave requirement in section 675(1)(a)(iii) in accordance with their own practice. There have been no reported decisions in Nova
Scotia in which the Court of Appeal considered the leave requirement in section
675(1)(a)(iii) in allegations of ineffective assistance of counsel. Should this Court wish to adopt an emphasis on the leave approach in section 675(1)(a)(iii) in its own
127 R. v. Kim, 2011 SKCA 74 at paras. 33; 36. 45 practice, a more exhaustive analysis of the potential of this provision as a leave requirement should be done.
In conclusion, the QCCA employs a robust approach with respect to ineffective assistance of counsel claims, which are addressed through its Rules; a mandatory case management form completed by both parties to the appeal; and through reliance on the leave to appeal requirements in the Criminal Code. While such reliance on the leave requirements may be appealing, especially in provinces where allegations of ineffective assistance create an onerous burden on the Crown and Courts, the extension of its application beyond Quebec is uncertain.128,129
2.6 Ontario
The Ontario Court of Appeal (ONCA), in consultation with the Ontario Bar, instituted its procedural protocol for addressing allegations of ineffective counsel in
May 2000 “as a guideline to the perfecting of appeals involving allegations of ineffective assistance of counsel.”130,131 Its current version, “Practice Direction
Concerning Criminal Appeals at the Court of Appeal for Ontario: ALLEGATIONS
128 NS stakeholder views on the Quebec approach are canvassed in this report at pp. 95-96, 102 and 104. 129 See: R. v. E.F.H., 1997 CanLII 418 (ONCA), in which the scope of s.685(1)(a)(iii) is considered. 130 Mark Gelowitz, “R. v. Graham: Ontario Court of Appeal Explains Protocol for Appeal Alleging Ineffective Assistance of Counsel”, Case Comment, (2014). 131 R. v. Archer, [2005] O.J. No. 4348 at para. 164, 202 C.C.C. (3d) 60 (Ont. C.A.). 46
OF INEFFECTIVE ASSISTANCE OF COUNSEL” (Appendix Q) has been in effect since March 1, 2017. Of its function, the ONCA has stated that the Protocol is “of great assistance” in the adjudication of ineffective assistance claims on appeal.”132 The Court stated: “The Protocol seeks to ensure procedural fairness to appellants, involved trial counsel, and the Crown in respect of such claims. Thus, compliance with the Protocol advances the administration of justice.”133
The ONCA protocol assumes that appellate counsel is involved. It does not contain any specific provisions for situations in which a self-represented appellant raises grounds of ineffective assistance.134
Protocol
The protocol begins by outlining the ONCA’s authority to receive fresh evidence “to enable the court to determine the appeal” and states that “[w]here the fresh evidence sought to be admitted raises a claim of ineffective assistance of counsel, […] this
Practice Direction applies.”135 The protocol mandates the assignment of a case management judge “[i]n all cases in which an appellant alleges ineffective assistance
132 R. v. Graham, 2014 ONCA 566 at para. 26. 133 R. v. Graham, 2014 ONCA 566 at para. 26. 134 For a detailed analysis of the function of the ONCA protocol and the Crown’s role therein, see R. v. Archer, [2005] O.J. No. 4348 at paras. 153-166, 202 C.C.C. (3d) 60 (Ont. C.A). 135 “Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario”, (1 March 2017), s. 7.3.5. 47 of trial counsel.”136 Upon notice of appeal, “a judge of the court will be appointed appeal management judge to supervise the collection and assembly of materials that will become the record for the advancement and determination of the allegation of ineffective assistance of trial counsel.”137 Case management is automatic and mandatory in all appeals involving allegations of ineffective assistance; “[t]here is no need for counsel to request appeal management in these cases.”138
The ONCA protocol includes a series of definitions that apply for the purposes of the section.139 Consistent with other protocols, the ONCA emphasizes the professional and ethical duty on the part of appellate counsel to ensure there is merit to the allegations of ineffective assistance prior to raising them, as well as requiring appellate counsel to informally notify trial counsel of the allegations. In addition, appellate counsel is required to provide a copy of the protocol to trial counsel (or a link to the online version), and allow for reasonable opportunity for trial counsel to respond to the allegations. The protocol also states that upon receiving informal notice, trial counsel is required to acknowledge the receipt of such notice to appellate counsel “as soon as reasonably possible.” This entire process occurs “[b]efore appeal
136 “Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario”, (1 March 2017), s. 8. 137 Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (March 2017),s. 17 at para. 5. 138 Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (March 2017), s. 17 at para 5. 139 This definitions section is unique to the ONCA protocol. 48 counsel decides whether to advance an allegation of ineffective assistance of trial counsel as a ground of appeal.”140
If appellate counsel does decide to pursue a claim of ineffective assistance, the protocol lists several steps that must be completed by appellate counsel:
Ø provide trial counsel with a copy of the Notice of Appeal, in which the
allegations are described “with reasonable particularity” and any other
documents providing further details of the claim;
Ø serve copies of the above documents to the respondent; and
Ø file a supplementary Notice of Appeal with the Court, accompanied by a
cover letter stating that the appeal involves an allegation of ineffective
assistance and providing the contact details of trial counsel.141
The ONCA protocol lays out directions for transfer of trial counsel’s case files to appellate counsel, and requires that appeal counsel provide the Crown access to trial counsel’s file for the purposes of the appeal. (The BCCA protocol contains similar provisions). The ONCA protocol states that “[i]f trial counsel has any objection to the transfer of the file, he or she may bring an application for directions
140 Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (March 2017), s. 17 at para. 3. 141 Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (March 2017), s. 17 at para. 4. 49 to the appeal management judge as soon as possible.”142 The protocol contains directions for copying the files, timelines concerning transfer, and for facilitating trial counsel’s access to the files following transfer, if required.
I inquired with Stacey Gerrard of LIANS about the process of transferring files between trial and appellate counsel. She did not identify any difficulties with transferring files between trial and appellate counsel that would necessitate such a provision in Nova Scotia, which she attributed to the small size of the NS Bar.143
The protocol also places obligations on the Ontario Crown. As soon as reasonably possible after receiving notice of the appeal, the Crown must:
Ø assign counsel to respond and address any accompanying issues associated
with the appeal; and
Ø advise the Criminal Appeal Coordinator via email of the name of counsel
assigned to the appeal.144
Furthermore, under the ONCA protocol, appeal counsel must complete, serve on the respondent, and file with the Court a form letter, Appeal Management Form
Re Allegations of Incompetence of Trial Counsel in Criminal Cases (Appendix R),
142 Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (March 2017), s. 17 at para. 6. 143 S. Gerrard, personal communication (verbal), May 31, 2017. 144 Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (March 2017), s. 17 at para. 8. 50 for the purposes of case management. This form letter details: the nature of the allegation of incompetence; the evidentiary foundation; whether notice has been given to trial counsel; whether waiver of privilege has occurred; whether access to files has been facilitated; a proposed timeline; details of relevant materials; and any other matters arising as part of the appeal.145 This form is similar to the QCCA case management form, but is only completed by the appellant. It must be completed, served on the respondent, and filed with the Court within 45 days from the date on which respondent counsel was assigned to the appeal. Within the same timeframe, the respondent and appeal counsel are required to arrange a meeting or conference call with the case management judge pertaining to the issues covered in the form.
Additionally, the practice directive requires that appeal counsel file an inventory of all material they intend to present for the record by a deadline agreed upon by the case management judge. A joint record can be filed by the appellant and respondent. Once completed, the appellant and respondent are required by the practice directive to meet in person or by conference call together with the appeal management judge regarding the timeline of the appeal and “the resolution of any outstanding or potential issues of solicitor-client privilege.”146 After filing, appeal
145 Court of Appeal for Ontario, “Schedule A: Appeal Management Form Re Allegations of Incompetence of Trial Counsel in Criminal Cases”. 146 Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (March 2017), s. 17 at para. 13. 51 counsel and the respondent are required by the protocol to meet again by conference call or in person with the case management judge regarding:
Ø filing the record compiled in connection with the claim of ineffective
assistance of trial counsel;
Ø filing any additional factums relating to this ground of appeal;
Ø determining the time to be allotted for oral argument;
Ø a timetable for the filing of material to be filed on behalf of the respondent;
Ø a timetable for any remaining cross-examinations;
Ø setting a date for the hearing of the appeal; and
Ø any other issue relating to the perfection, listing or hearing of the appeal,
including whether any further appeal management conference calls are
necessary.147
The ONCA practice directive does not apply to self-represented prisoner appellants.
In its submissions in R. v. W.E.B., the Ontario Crown expresses the following frustrations with the ONCA practice directive:
Ontario’s Protocol provides procedural structure to the conduct of ineffective assistance of counsel appeals, but it does little to prevent meritless claims from being advanced. There are at least two reasons for this. First, it is only applicable to solicitor appeals, so it has no impact on meritless claims of ineffective assistance of counsel advanced by self-represented appellants (where many such claims are pursued in Ontario). Second, although it
147 Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario (March 2017), s. 17 at para. 14. 52
requires appeal counsel to conduct an investigation of any claim, it does not (and could not) provide for any review or oversight of counsel’s compliance with this requirement [emphasis added].148
Like several Canadian protocols, the ONCA practice directive for addressing appeals involving allegations of ineffective assistance does not specifically address the unique problems raised by self-represented appellants in such appeals. The
Ontario Crown emphasizes the importance of assessing the merits of a claim in the early stages of the process, in order to ensure that only meritorious claims proceed.
Interpretation of the protocol: R. v. Graham
The ONCA’s protocol places many obligations and firm timelines on both appellate counsel and the Crown. In R. v. Graham, 2014 ONCA 566, the Ontario Court of
Appeal responded to submissions by the Crown that, inter alia, the appellant’s ineffective assistance claim was completely without merit and that, as a result, “full compliance with the protocol would be a waste of time and resources.”149 The Court explained that the protocol is flexible:
The Protocol sets out procedural guidelines to be followed in any criminal appeal to this court where the appellant proposes to advance an ineffective assistance claim. The provisions of the Protocol are not cast in stone. Neither are they intended to be rigidly applied in all instances where an ineffective assistance claim is proposed as a ground of appeal.150
148 R. v. W.E.B., 2014 SCC 2 (Factum of the respondent at para. 22). 149 Mark Gelowitz, “R. v. Graham: Ontario Court of Appeal Explains Protocol for Appeal Alleging Ineffective Assistance of Counsel”, Case Comment, (2014). 150 R. v. Graham, 2014 ONCA 566 at para. 23. 53
This interpretation of the ONCA protocol as flexible and applicable on a case-by- case basis seeks to mitigate some of the burden on the Ontario Crown of responding to such allegations. The Court in R. v. Graham elaborates:
[W]here the Crown is of the view that adherence to the entire process set out under the Protocol is neither necessary nor advisable in a given case […] it is open to the Crown to apply to the applicable case management judge of this court for relief from this obligation. […] At the end of the day, it remains for the Crown to determine the nature of its response to an appellant’s—including a self-represented appellant’s—appeal to this court.151
As the Ontario Crown makes clear in its submissions to the SCC in R. v. W.E.B., the increasing number of appeals involving allegations of ineffective assistance of trial counsel is a frustrating burden on the Crown, as the fact-driven appeals process necessitates its careful and detailed response.152 The Court in R. v. Graham, therefore, explains:
The Crown, as it may elect, is therefore at liberty to decline to follow the full fresh evidence process contemplated by the Protocol, subject to any further order as may be made by the panel hearing the appeal.153
This flexible aspect of the protocol is not read in by the Court, but, rather, a deliberate element of its design:
[T]he Protocol explicitly contemplates that some of its procedural rules may not be appropriate or necessary in all cases. Further, any party may seek
151 R. v. Graham, 2014 ONCA 566 at para. 27. 152 R. v. W.E.B., 2014 SCC 2 (Factum of the respondent). 153 R. v. Graham, 2014 ONCA 566 at para. 32. 54
specific relief from strict adherence to the Protocol on an application to the involved case management judge of this court.154
As one of the oldest protocols for dealing with allegations of ineffective assistance in Canada, the longevity of the ONCA protocol demonstrates its usefulness to the ONCA in dealing with the matters associated with those appeals.
The protocol imposes strict timelines on those involved in the appeal through the case management process. These timelines are in the interests of consistency and efficiency of the appeals process, and aim to eliminate delays which may endanger the rights of the prisoner. However, such timelines also created an onerous burden on the Ontario Crown, in terms of putting together the materials necessary for the appeal. In response, the ONCA has interpreted the protocol flexibly and has given leeway to the Crown to apply the protocol appropriately depending on the case.
Charlene Moore of NSLA expressed interest in developing a more consistent timeline among appeals involving allegations of ineffective assistance of trial counsel, to facilitate improved tracking of appeals in NSLA’s own record-keeping, as well as to better keep prisoners apprised of the progress of their appeals. Ms.
Moore explained that strict timelines would not likely assist anyone involved in the
154 R. v. Graham, 2014 ONCA 566 at para. 25. 55
NS process, but that a recommended timeline, flexibly applied like in Ontario following R. v. Graham, may be a useful addition to the NSCA approach.155,156
2.7 Manitoba
Preamble
The Manitoba Court of Appeal (MBCA) protocol, “Directive Regarding Appeal
Proceedings Involving Allegations of Ineffective Counsel in First Instance”
(Appendix S), is almost identical to the NSCA protocol, including the codification of the responsibility of appellate counsel (if present) to ensure allegations of ineffective assistance are meritorious prior to raising them in the Notice of Appeal.157
In place of the NSCA jurisprudence in the NSCA protocol, the Manitoba protocol directs users to R. v. G.D.B., as well as an MBCA decision: R. v. Le (T.D.), 2011
MBCA 83.158
Directive
The MBCA directive is virtually identical to the NSCA protocol: both provide for discretionary case management; ensure trial counsel is apprised and involved; allow
155 R. v. Graham, 2014 ONCA 566. 156 C. Moore, personal communication (verbal), August 8, 2017. 157 Manitoba Court of Appeal, “Directive Regarding Appeal Proceedings Involving Allegations of Ineffective Counsel in First Instance” (15 January 2016). 158 See also: R. v. Munson, 2012 MBCA 111, in which the MBCA protocol is considered and applied at para. 6. 56 for trial counsel to apply to intervene, if necessary; and require that trial counsel notify the motions judge if they intend to file affidavit evidence or make any motion.
Consistent with the NSCA protocol, the MBCA directive assesses waiver on a case-by-case basis. The wording of the directive with respect to waiver is slightly different: where the NSCA protocol states that the Court “may be asked” to provide direction regarding waiver of solicitor-client privilege, the MBCA protocol states:
“Should the response by counsel involve disclosure of potentially privileged information, a motion for directions regarding waiver of privilege would be expected.”159 It is not apparent from the MBCA jurisprudence whether this difference in wording has resulted in any significant difference in application.
2.8 Saskatchewan
The Court of Appeal for Saskatchewan (SKCA) protocol is internal. Discussion of its contents has been removed from the electronic version of this report.
2.9 Alberta
The Court of Appeal of Alberta (ABCA) does not have a protocol for dealing with issues associated with appeals involving allegations of ineffective assistance of counsel. During consultation via telephone, Bobbi Jo McDevitt, a case management
159 Manitoba Court of Appeal, “Directive Regarding Appeal Proceedings Involving Allegations of Ineffective Counsel in First Instance” (15 January 2016). 57 officer at the ABCA, stated that the Court has no protocol in place, but that such appeals often become commission hearings and that the ABCA does have an internal protocol in place for that.160 I inquired about a process for dealing with waiver of solicitor-client privilege in ineffective assistance appeals, and Ms. McDevitt confirmed that the ABCA has no protocol, either internal or public, for dealing with such issues.161
2.10 British Columbia
The British Columbia Court of Appeal’s (BCCA) current practice directive concerning allegations of ineffective assistance, “Ineffective Assistance of Trial
Counsel Criminal Practice Directive” (Appendix U), has been in place since
November 2013, but the BCCA has had versions of it in place since February
2005.162 It is composed of four stages and includes a form letter to trial counsel. It applies to situations in which there is appellate counsel, as established in the preamble: “If a party is not represented and makes allegations of ineffective assistance of trial counsel, the appeal will be immediately referred to case
160 As that protocol does not mention or directly address ineffective counsel, it is not examined in this report.
161 B. McDevitt, personal communication (verbal), August 2017. 162 British Columbia Court of Appeal, “Ineffective Assistance of Trial Counsel (Criminal Practice Directive”, (October 2014). 58 management for directions.”163 Thus, in situations where appellants are self- represented, case management occurs on a mandatory basis and the practice directive is applied at the discretion of the case management judge.
Stage One of the BCCA practice directive codifies the duty of appellate counsel to ensure that allegations of incompetence are meritorious before filing the
Notice of Appeal. This is consistent with several other protocols, including the
NSCA protocol. The protocol directs appellate counsel to take any steps necessary to “satisfy him or herself that there is some foundation for any allegations that trial counsel was ineffective or incompetent.” 164 In addition, appellate counsel is required by the protocol to informally notify trial counsel of the allegations, and to give trial counsel a reasonable opportunity to informally respond to the allegations to appellate counsel, prior to filing a Notice of Appeal. This provision is also present in the
NSCA protocol, but on a more flexible basis—the NSCA’s states that it is
“expected” that appellate counsel will assess the merits of the appeal, and that “[i]n most cases such assessment will include giving trial counsel notice of the allegations and providing a reasonable opportunity to respond.”165
163 British Columbia Court of Appeal, “Ineffective Assistance of Trial Counsel (Criminal Practice Directive”, (October 2014). 164 British Columbia Court of Appeal, “Ineffective Assistance of Trial Counsel (Criminal Practice Directive”, (October 2014). 165 Nova Scotia Court of Appeal, “Protocol for Appeal Proceedings Involving Allegations of Ineffective Trial Counsel.” 59
Stage Two of the BCCA practice directive concerns “Advancing an Appeal
Alleging that trial counsel was ineffective.” 166 It states that when a Notice of Appeal
(or amended Notice of Appeal) includes allegations of ineffective assistance, the
Chief Justice will assign a case management judge to the file. Case management is, therefore, undertaken on a mandatory basis for all appeals involving allegations of ineffective trial counsel. The protocol also provides a timeline for a case management hearing: the Registrar will schedule a case management hearing within four weeks of the filing of the Notice of Appeal. Appellate counsel is required to formally serve a copy of the Notice of Appeal including allegations of ineffective assistance to the impugned trial counsel.
The protocol states that the appellant “shall prepare and provide to trial counsel his or her affidavit setting out the factual basis for the allegations,” along with a signed waiver “in which the appellant expressly waives solicitor-client privilege to the extent necessary to allow trial counsel to respond to the allegations against him or her.”167 The protocol also requires that a copy of the signed waiver be delivered by the appellant to the Crown/respondent. The BCCA addresses waiver
166 British Columbia Court of Appeal, “Ineffective Assistance of Trial Counsel (Criminal Practice Directive”, (October 2014). 167 British Columbia Court of Appeal, “Ineffective Assistance of Trial Counsel (Criminal Practice Directive”, (October 2014). 60 issues associated with such allegations, therefore, through a policy of mandatory express waiver in all cases.
In Nova Scotia, LIANS manages the waiver process once the Notice of
Appeal is filed, and seeks “fulsome waiver” of all relevant information in all cases, to best enable the impugned trial counsel to respond to the allegations (further discussed in section 3.3 of this report).168 The BCCA practice directive specifies that solicitor-client privilege be waived “to the extent necessary” for trial counsel to appropriately respond, indicating that partial waiver is presumptively preferred over complete waiver.
Steps 5 and 6 of the BCCA protocol concern the transfer of files from trial counsel to appellate counsel. Upon written request by appellate counsel, trial counsel must provide appellate counsel with his or her entire trial file, “in accordance with the professional obligations of counsel.”169 They also contain directions for making copies if trial counsel wants to keep all or part of his or her file.
The practice directive includes a form letter to impugned trial counsel, Form
A (Appendix V). The Crown/respondent is required by the protocol to forward a letter in Form A to trial counsel, soliciting an affidavit in response to the allegations
168 S. Gerrard, personal communication (verbal), May 31, 2017. 169 British Columbia Court of Appeal, “Ineffective Assistance of Trial Counsel (Criminal Practice Directive”, (October 2014). 61 raised in the Notice of Appeal. The letter advises trial counsel: “[the] Court of
Appeal will require a response to these allegations from you in order to properly dispose of this ground of appeal. Your response should be in affidavit form.”170
Thus, the BCCA practice directive mandates the preparation of a responding affidavit from trial counsel. The form letter also reminds trial counsel that express waiver of privilege has been delivered, to enable his or her response. The letter states that “a complete response to each and every allegation is desirable” and points trial counsel toward specific paragraphs in the appellant’s affidavit that require reply.171
The protocol again emphasizes a preference for partial waiver, stating: “Trial counsel’s affidavit shall not divulge any confidential information learned or obtained by trial counsel during the course of the file or instructions given by the appellant, except to the extent necessary to fully respond to the allegations of ineffective assistance.”172 Furthermore, appellate counsel is required to review trial counsel’s affidavit and to edit and redact any portions that, in the opinion of appellate counsel, divulge more confidential information than is necessary to respond to the allegations.
Appellate counsel is required to file both the original trial counsel’s affidavit and the
170 British Columbia Court of Appeal, “FORM A: Form letter to impugned trial counsel.” 171 British Columbia Court of Appeal, “FORM A: Form letter to impugned trial counsel.” 172 British Columbia Court of Appeal, “Ineffective Assistance of Trial Counsel (Criminal Practice Directive”, (October 2014). 62 edited version with the court, “both which shall be sealed by the registrar pending directions from the case management judge.”173
Stage Three addresses case management. It states that at a case management hearing, the case management judge has the discretion to make any directions deemed “necessary to ensure a timely and fair hearing of the appeal” and also lists a series of matters that must be specifically considered by the case management judge.
They include: confirming that trial counsel has been formally served a copy of the
Notice of Appeal; establishing relevant timelines; and reviewing the edited affidavit and making directions regarding the redacted portions, if applicable.
Stage Four addresses the hearing. Before a date for the hearing of the appeal may be set, Stage 4 requires that:
Ø The filing of appeal books and transcripts is complete, in accordance
with the Rules;
Ø The appellant has filed his or her application to adduce fresh evidence;
and
Ø The above-described listed considerations have been addressed by the
case management judge.174
173 British Columbia Court of Appeal, “Ineffective Assistance of Trial Counsel (Criminal Practice Directive”, (October 2014). 174 British Columbia Court of Appeal, “Ineffective Assistance of Trial Counsel (Criminal Practice Directive”, (October 2014). 63
The BCCA practice directive, in sum, contains a significant emphasis on limiting waiver to only information necessary to respond to allegations raised by the appellant, and a significant emphasis on case management throughout the process, including management of the timeline of the appeal.175
2.11 Yukon
The Yukon Court of Appeal (YKCA) practice directive, “Directive 6: Ineffective
Assistance of Trial Counsel,” (Appendix W) effective June 1, 2017, is brief. It applies to criminal appeals before the YKCA, “in which the Appellant advances as a basis of the appeal that his or her Trial Counsel provided ineffective assistance at trial resulting in a miscarriage of justice.”176
The practice directive provides for discretionary case management. Either party may write to request that a case management judge be assigned.
The directive includes a form that must be filled in and filed with the factum
(Appendix X) giving notice of the allegation to the Registrar. The form does not detail the allegations. It only states that an allegation of ineffective counsel has been made.177 Upon filing, the protocol also requires that a copy of the Notice be delivered to trial counsel. Notice to trial counsel occurs relatively late in the process; there is
175 For illustrations of the function of the BCCA practice directive, see R. v. Wong, 2016 BCCA 416 and R v. Yellowhead, 2015 BCCA 389. 176 Court of Appeal of Yukon, “Directive 6: Ineffective Assistance of Trial Counsel.” 177 Court of Appeal of Yukon, “Form A: Ineffective Assistance of Trial Counsel.” 64 no recommendation that trial counsel be notified—either formally or informally— until the stage at which the factum is filed.
The role of the Registrar in identifying or flagging the grounds of appeal is not defined, but, based on the mandatory form, the protocol appears to place a degree of responsibility on the appellant to know or understand that they are alleging ineffective assistance. In consultation with the Registrar of the NSCA, NSLA, and
LIANS, I consistently received feedback that appellants do not always understand the nature of their allegations of ineffective assistance at the time of filing their
Notice of Appeal. NSLA explained that is not infrequent that, during discussion with prisoners regarding what appears to be an allegation of ineffective assistance in a
Notice of Appeal, a prisoner will explain that he or she was happy with the performance of their lawyer—but unhappy with the outcome.178
Ineffective assistance jurisprudence at the YKCA is thin: ineffective assistance of trial counsel in criminal matters was considered most extensively by the YKCA in R. v. Murphy, in which the appellant alleged that she was “denied the effective assistance of counsel in the presentation of an alibi defence.”179 Fresh evidence was admitted for consideration by the YKCA, which analyzed the evidence provided and found that neither of the elements of the test from G.D.B. had been
178 C. Moore, personal communication (verbal), August 8, 2017. 179 R. v. Murphy, 2014 YKCA 7 at para. 4. 65 satisfied.180 There is no YKCA decision in which the above-described directive has been considered.
2.12 Northwest Territories
The Court of Appeal for the NWT does not have a protocol or practice directive addressing allegations of ineffective counsel. I consulted Jerry Plante, Court
Manager of the NWTCA, who described their process as follows:
The Court of Appeal for the NWT does not [have] any directive involving allegations of ineffective counsel. In our jurisdiction, we have a practice called list scheduling. List scheduling is a routine calling of all pending matters in CofA. Counsel are expected to attend in person or via agent to provide an update to the progress of the appeal or advise the Courts as to the status of the matter (if a matter is getting dated, the presiding Judge can set deadlines for filings and such.)181
2.13 Nunavut
The Nunavut Court of Appeal has no protocol or practice directive related to appeals based on ineffective assistance.182
2.14 Federal Court
The Federal Court protocol, “Procedural Protocol Re Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected
180 R. v. Murphy, 2014 YKCA 7 at para. 33. 181 J. Plante, personal communication (written) (August 15, 2017). 182 M. Mossey, personal communication (written) (August 14, 2017).). 66
Person Cases before the Federal Court”183 (Appendix Y) applies to Federal Court
“applications for leave and for judicial review made under the Federal Courts
Immigration and Refugee Protection Rules SOR/93-22, or applications filed as appeals under the Citizenship Act, R.S.C., 1985, c. C-29.”184 The protocol was designed to assist the Court in its adjudication of ineffective assistance claims in the citizenship and immigration contexts, as described by Gleeson J.:
Competence arguments can be especially challenging for the Court. The stated purpose of the Protocol is to assist the Court ‘in the adjudication of applications where such allegations are made’. The Protocol has the additional effect of providing counsel against whom allegations are made the opportunity to respond to those allegations.185
As in other protocols, the Federal Court protocol emphasizes that prior to raising allegations of ineffective assistance in an application, “current counsel must satisfy him/herself, by means of personal investigations or inquiries, that there is some factual foundation for this allegation.” 186,187 Current counsel is also required to
183 Canada, Federal Court, “Procedural Protocol Re Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court” (7 March 2014). 184 Canada, Federal Court, “Procedural Protocol Re Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court” (7 March 2014). 185 Shabuddin v. Canada (Citizenship and Immigration), 2017 FC 428 at para. 18. 186 Canada, Federal Court, “Procedural Protocol Re Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court” (7 March 2014).
187 The Federal Court protocol contains no instructions for situations in which an appellant is self-represented.
67 notify former counsel (or authorized representative) of the allegations being filed in writing, with enough detail that former counsel will be able to appropriately respond.
With respect to waiver, current counsel is required to provide former counsel with a “signed authorization from the applicant releasing any privilege attached to the former representation along with a copy of [the] Protocol.”188 The Federal Court protocol, thus, requires that express waiver of privilege occur at the time that trial counsel is notified.
Barring urgency, current counsel is required to wait for a written response from the impugned counsel or representative prior to filing the Notice of Appeal.
The protocol lays out a timeline of seven days within receipt of notice for former counsel to respond.
Consistent with other Canadian protocols, the Federal Court protocol emphasizes the duty of appellate counsel to investigate allegations against former counsel prior to filing. The Protocol states: “[i]f after reviewing the response of the former counsel or authorized representative, current counsel believes that there may be merit to the allegations, current counsel may file the application or appeal record
188 Canada, Federal Court, “Procedural Protocol Re Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court” (7 March 2014). 68 with the Court.”189 Furthermore, the Federal Court allows current counsel to apply by motion for extensions of time, in scenarios where investigation of the allegations causes delay. This feature is unique to the Federal Court protocol, and further emphasizes the prioritization of ensuring that the claims have merit prior to filing an appeal with the Federal Court.
Former counsel or authorized representative must be served with any applications containing allegations against them, and the Federal Court requires proof of such service. Former counsel or authorized representative can respond to the allegations “by sending a written response to current counsel and to counsel for the Respondent within ten days of service of the application or appeal record or such further time as the Court may direct.”190
The Federal Court has emphasized the importance of appropriate use of the
Procedural Protocol to ensure that the Court has all relevant information, including representations from former counsel.191 It has stressed that “general allegations are not sufficient” to inform the court in such situations.192
189 Canada, Federal Court, “Procedural Protocol Re Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court” (7 March 2014). 190 Canada, Federal Court, “Procedural Protocol Re Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court” (7 March 2014). 191 Rezko v. Canada (Citizenship and Immigration), 2015 FC 6 at para. 9. 192 McKenzie v. Canada (Citizenship and Immigration), 2015 FC 719 at para. 39.
69
Unique to the Federal Court protocol is a provision for situations in which former counsel does not produce affidavit or other evidence for the record. In situations where no response is received from former counsel and no extension of time has occurred, current counsel is required to inform the Court, and the Court will base its decision on the existing record “without any further notification to the former counsel or authorized representative.”193,194 Finally, the protocol includes the procedure by which former counsel may be granted leave to intervene, if applicable.
The Federal Court protocol does not reference relevant Federal Court or SCC case law. However, the Federal Court does apply the test from G.D.B. in the immigration context, and the strength of the burden is the same. For example, the
Court in McKenzie was satisfied that former counsel was negligent, but found there was insufficient evidence that the result would have been different had counsel performed competently. The Court, thus, held that “the alleged incompetence of
193 Canada, Federal Court, “Procedural Protocol Re Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court” (7 March 2014).
194 This provision is notable in that it is an outlier: none of the other Canadian protocols regarding allegations of ineffective assistance contain a similar provision for situations in which former counsel does not respond to the allegations. In interview, Stacey Gerrard from LIANS indicated that such a lack of response is highly uncommon; in the 2012-2017 period, LIANS has only recorded one case in which trial counsel did not prepare a responding affidavit, and the circumstances of that situation were unique. (S. Gerrard, personal communication (verbal), May 31, 2017). 70 counsel [did] not establish a breach of procedural fairness.”195 The Court described its test in Rezko:
Exceptionally, this Court may consider that counsel’s failure or negligence can result in a breach of procedural fairness and justify a new hearing before an administrative decision-maker, but only if the fault alleged falls within professional incompetence and the outcome of the case would have been different had it not been for counsel’s wrongful conduct (R v GDB, 2000 SCC 22 (CanLII) at paras 26-29).196
The Federal Court protocol, therefore, shares many aspects in common with other
Canadian protocols, while also containing some unique provisions that reflect its application in the immigration and citizenship context.197
Speaking on behalf of the Elizabeth Fry Society, Emma Halpern raised concerns about implications for immigration caused by ineffective assistance. She identified a gap in Nova Scotia for legal aid assistance in the immigration context, and stated that more information and education for the Bar is needed to address these issues. It may be valuable to look to the Federal Court protocol when considering appropriate updates to the NSCA Protocol, in order to best accommodate citizenship and immigration-related issues arising in the criminal context.198
195 McKenzie v. Canada (Citizenship and Immigration), 2015 FC 719 at para. 63. 196 Rezko v. Canada (Citizenship and Immigration), 2015 FC 6 at para. 5. 197 A letter containing the Canadian Bar Association’s suggestions for improvements to a draft version of this protocol are appended (Appendix Z). Although none of its suggestions were implemented, the letter provides interesting insight into the use of and need for the protocol by practicing immigration lawyers in Canada. 198 E. Halpern, personal communication (verbal), August 2017. 71
2.15 Additional Note: NZCA Analysis
A recent decision from the Court of Appeal of New Zealand (NZCA) is noteworthy for its comparative review of Canadian ineffective assistance protocols.
The NZCA in Hall v. R., 2015 NZCA 403, in response to a significant increase in appeals involving allegations of ineffective assistance, conducted a comprehensive review of its own protocols regarding ineffective assistance of trial counsel “to ensure they are effective and promote the overall interests of justice.”199 In doing so, it considers the ineffective assistance protocols of: Nova Scotia, Ontario, British
Columbia and the Yukon.
The Court stated that “[a]ppeals raising issues about the conduct of trial counsel now form a significant proportion of criminal appeals before the [NZCA],” leading the NZCA to address the trend through a comprehensive analysis in
Hall.200,201 The decision incorporates and considers the perspectives of several intervening stakeholders: the New Zealand Bar Association, the New Zealand Law
199 Hall v. R., 2015 NZCA 403 at para. 1. 200 Hall v. R., 2015 NZCA 403 at para. 1.
201 The NZCA notes that between 2009 and 2014, appeals involving allegations of ineffective assistance of trial counsel in New Zealand consisted of, on average, 19% of appeals against conviction.
72
Society, the Criminal Bar Association, the Public Defence Service, and the Legal
Services Commissioner.
In its assessment of Canadian protocols, the NZCA analyzed the file transfer process between trial and appellate counsel, and noted that while the ONCA and
BCCA protocols both provide instructions for file transfers, neither the YKCA nor the NSCA protocols address this aspect. While the streamlining of the file transfer process was a priority for the NZCA, the Court did not favour a prescriptive approach. It noted that the ONCA protocol “provides for trial counsel who objects to production of the file to make an application to the Court to determine the objection.”202 Of this provision, the NZCA stated: “We see no need for formal provision for this step to be made. It risks adding undue formality and unnecessary cost.” 203
With respect to waiver, the NZCA favoured the approaches of both the ONCA and the BCCA in encouraging partial waiver, where possible. The Court held: “As to the scope of waiver, it was common ground that waiver of legal privilege by an appellant can be limited to the matters in issue on the appeal. […] [T]here is
202 Hall v. R., 2015 NZCA 403 at para. 35. 203 Hall v. R., 2015 NZCA 403 at para. 35. 73 precedent for this approach in the British Columbia Court of Appeal Practice
Directive and the Ontario Court of Appeal Procedural Protocol.”204
Regarding notification of trial counsel, the NZCA favoured protocols that encourage informal notification of trial counsel prior to formal notice. The NZCA explained: “We consider appellate counsel should approach trial counsel as soon as reasonably practicable. […] A more timely approach and response also has the benefit that the matters in issue will be fresher in counsel’s mind closer to the events.”205
In terms of case management, the NZCA noted that “[a]ll of the Canadian protocols provide for case management.”206 While the NZCA and all parties involved in the NZCA appeal concurred in the value of case management, the NZCA held that the “prescriptive” approach to case management by the Ontario and British
Columbia Courts of Appeal was not suitable for their needs. The NZCA explained:
We agree that case management can assist in progressing these appeals and in ensuring matters are properly developed and prepared by the time the case comes to a hearing. We do not, however, see a need for the Court to be prescriptive about this. 207
204 Hall v. R., 2015 NZCA 403 at para. 39. 205 Hall v. R., 2015 NZCA 403 at para. 41. 206 Hall v. R., 2015 NZCA 403 at para. 42. 207 Hall v. R., 2015 NZCA 403 at para. 43. 74
Flexibility in the case management process was preferred by the NZCA, consistent with the NSCA protocol. It is notable, however, that this approach to non- prescriptive case management applies only to situations in which appellate counsel is present. The NZCA does not consider self-represented appellants in Hall.
2.16 Comparative Analysis: Conclusions
In conclusion, most Courts of Appeal across Canada have developed formal approaches for addressing allegations of ineffective counsel on appeal, but none deal extensively with allegations of ineffective counsel in prisoner appeals.
The protocols of Nova Scotia, New Brunswick, Prince Edward Island and
Manitoba are very similar to one another. Each provide for discretionary case management and address waiver of solicitor-client privilege on a case-by-case basis.
The approaches of British Columbia, Ontario, and Quebec are the most robust.
British Columbia emphasizes partial waiver, where possible. Both Ontario and
British Columbia contain provisions for timelines so that appeals are consistent, although it is notable that the ONCA has interpreted this aspect of their protocol flexibly. Case management is mandatory in Quebec, Ontario and British Columbia, and both Quebec and Ontario use case management forms to organize appeals.
Almost all formal approaches across Canada emphasize ensuring that trial counsel is informed and involved, and emphasize that appellate counsel, when 75 involved, have an important role in investigating the merits of the ineffective counsel claim. Ives noted:
In addition to the strict standard of review that is imposed by Strickland itself, Canadian courts have imposed a duty on appeal counsel to thoroughly consider whether there is a valid basis for an ineffective assistance claim before raising it on appeal […] This duty should operate, at least when the appellant is represented on the appeal, as a screening mechanism to weed out obviously invalid claims before they are ever brought before the appeal courts.208
This practice also serves to protect the interests of trial counsel, both in terms of reputational interests and in terms of avoiding the costs associated with responding to a claim, if unfounded.
Elements of the […], FC, QCCA and PECA protocols are notable outliers in this comparative analysis. As an internal protocol, the SKCA protocol […]. The
Federal protocol also differs, due to the specific immigration and citizenship context in which it is applied. The QCCA uses the leave requirement in section 675(1)(a)(iii) of the Criminal Code to “screen” claims of ineffective assistance, so that only those with “arguable merit” are granted leave. Although this approach is appealing, especially in jurisdictions receiving large numbers of ineffective assistance claims, its potential application outside of Quebec is unclear. Finally, the PECA protocol is
208 Dale E. Ives, “The ‘Canadian’ Approach to Ineffective Assistance of Counsel Claims” (2004) 42 Brandeis L.J. 239 at 263-264. 76 unique in its anticipation of a potential section 684 claim from the outset of the appeal process, when the Notice of Appeal is filed.
77
3. WAIVER OF SOLICITOR-CLIENT PRIVILEGE
Typically, to establish a claim of ineffective assistance, an appellant must adduce evidence regarding directions from, or correspondence with, trial counsel to demonstrate trial counsel’s incompetence. This evidence requires waiver of the solicitor-client privilege otherwise protecting those communications, both for the appellant to adduce the evidence itself and for trial counsel to respond to the allegations. This waiver raises uniquely challenging issues when it comes to self- represented appellants, who, without access to legal advice, may not understand the consequences of waiving privilege. An appellant may elect not to pursue an ineffective assistance claim for fear of waiving privilege over information pertinent to his or her other legal proceedings which may be still ongoing, or aspects of the case that he or she does not want made public.209
Solicitor-client privilege is a constitutionally-protected right.210 It refers to privilege over all communications (intended to be confidential) between a client and a lawyer, in the context of seeking or providing legal advice.211 Solicitor-client privilege belongs to the client, not to counsel; the privilege can only be waived by
209 R. v. Henneberry, 2017 NSCA 71 at para. 36. 210 Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: NSBS, 2017, ch. 3.3. 211 Robert W. Hubbard, Susan Magiotiaux and Suzanne M. Duncan, The Law of Privilege in Canada (Toronto: Thomson Reuters, 2016) (loose-leaf updated July 2017), ch. 11 at 11-4. 78 the client. Thus, “[e]ven when a solicitor’s reputation is at stake, that solicitor cannot waive privilege.”212 The NSBS Code of Professional Conduct states:
A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless: (a) expressly or impliedly authorized by the client; (b) required by law or a court to do so; (c) required to deliver the information to the Society, or (d) otherwise permitted by this rule.213
For waiver, there must be:
1. Knowledge of the privilege being waived; and
2. A clear and voluntary intention on the part of the person possessing the
privilege to give it up. 214
Waiver of solicitor-client privilege can be explicit or implicit.215 However, because solicitor-client privilege is almost absolute, it “may be set aside only in very rare circumstances.”216 The NSCA has held that “[a] client who puts in issue the advice received from his or her solicitor risks being found to have waived the privilege with respect to those communications.”217,218 Both LIANS and NSLA indicated for the
212 Robert W. Hubbard, Susan Magotiaux and Suzanne M. Duncan, The Law of Privilege in Canada (Toronto: Thomson Reuters, 2016) (loose-leaf updated July 2017), ch. 11 at 11-66.11. 213 Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: NSBS, 2017, ch. 3.3. 214 Robert W. Hubbard, Susan Magotiaux and Suzanne M. Duncan, The Law of Privilege in Canada (Toronto: Thomson Reuters, 2016) (loose-leaf updated July 2017), ch. 11 at 11-66.8. 215 R. v. Campbell, [1999] 1 SCR 565, 43 OR (3d) 256. 216 R. v. Ward, 2016 ONCA 568 at para. 32. 217 R. v. Hobbs, 2009 NSCA 90 at para. 14. 218 See also: R. v. Marriott, 2013 NSCA 12. 79 purposes of this report that in prisoner appeals involving allegations of ineffective assistance, it is very helpful when implied waiver is discussed and found to have occurred in telechambers. 219,220
3.1 NSCA Jurisprudence
The issue of waiving solicitor-client privilege during an ineffective assistance of trial counsel claim is addressed in R. v. Marriott, 2013 NSCA 12, in which Mr. Marriott alleged incompetent representation by his trial counsel but denied waiving solicitor- client privilege. The Court held that although there was “[c]learly […] no express waiver” of privilege:
Mr. Marriott’s position on the appeal impliedly waives solicitor client privilege to the limited extent that is necessary to allow the Crown to explore and this Court, if [trial counsel]’s evidence is offered, to make reliable findings, respecting those pivotal facts that Mr. Marriott has placed in issue [emphasis added].221
Although the allegation of ineffective assistance had been withdrawn, the NSCA held in Marriott that because the repudiation of the joint submission on sentence, in issue on appeal, turned on whether Mr. Marriott was appropriately informed of the implications of the sentence, waiver was required. By emphasizing that privilege is impliedly waived “to the limited extent that is necessary,” the Court is clear in
219 S. Gerrard, personal communication (verbal), May 31, 2017. 220 C. Moore, personal communication (verbal), August 8, 2017. 221 R. v. Marriott, 2013 NSCA 12 at para. 32. 80 limiting the privilege to communications between defence counsel and the appellant pertinent to the facts in issue. Thus, when waiver is found to be implied by this Court, its extent it limited.
This is consistent with the NSCA’s approach in R. v. Hobbs, 2009 NSCA 90, in which the Court outlined its reasons for allowing trial counsel’s motion for a declaration that the appellant waived solicitor-client privilege regarding his representation at trial. The Court stated:
A lawyer has an ethical duty to hold in strict confidence any information provided by a client, and may not disclose that information except where the client permits, or in certain limited circumstances, for example where disclosure is necessary to prevent a crime, defend allegations of malpractice or misconduct, or to collect a fee. When the lawyer is required to make such disclosure, it should encompass no more than is necessary to answer the allegations.222
Again, the Court emphasized that “waiver of privilege does not entitle the Crown to know the substance of all communications between [the appellant and counsel]” and deferred to the ethical obligations of trial counsel to “determine the nature and extent of disclosure bearing in mind [trial counsel]’s ethical obligations to [the appellant] as a former client.”223
222 R. v. Hobbs, 2009 NSCA 90 at para. 12. 223 R. v. Hobbs, 2009 NSCA 90 at para. 22. 81
3.2 Canadian Approaches to Waiver
Many Canadian appellate courts have addressed waiver in their protocols for appeals based on ineffective assistance. The Canadian protocols discussed in this report address waiver in the following ways224:
COURT WAIVER APPROACH NSCA § Waiver process addressed by LIANS who, sends letter to appellant with form and recommendation for ILA (will also include information sheet once approved); seeks “fulsome waiver” § If not addressed through letter, the Court may be asked to provide direction as to whether the appellant’s allegations are sufficient to constitute waiver of solicitor-client privilege, allowing trial counsel to respond (can happen through telechambers; case-by- case basis) NBCA § Case-by-case approach § A motion for direction regarding waiver of privilege “would be expected” where response by counsel involves privileged information PECA § Case-by-case approach § If response by trial counsel would involve privileged information, “counsel should bring a motion for directions regarding waiver of privilege sought” QCCA § Addressed through case management form § Allows partial waiver, but no stated preference for partial over fulsome ONCA § Addressed through mandatory case management process § Process in protocol for addressing solicitor-client privilege in transfer of files between trial and appeal counsel (both directions) MBCA § Case-by-case approach
224 Although they do not have a formal protocol or practice directive and are therefore not mentioned in this table, the Alberta Court of Appeal has required written waiver in order to conduct an ineffective assistance inquiry. See: R. v. C. (L.S.), 2003 ABCA 105. 82
§ A motion for direction regarding waiver of privilege “would be expected” where response by counsel involves privileged information SKCA § […] BCCA § Mandatory express waiver of solicitor-client privilege to the extent necessary to allow trial counsel to respond § Emphasis on preference of partial waiver over full YKCA § Waiver not addressed in directive FC § Before pleading incompetence, former counsel must be provided with a written, signed waiver of “any privilege attached to the former representation)
For the purposes of this report, Charlene Moore of NSLA indicated that formal provision for partial waiver in the NSCA protocol (or otherwise earlier in the appeal process) may help facilitate waiver, thus enabling NSLA to begin its assessment of the merits of the appellant’s file.225 The merits assessment is the review process by which the NSLA determines whether it will represent the appellant. Reluctance to waive privilege can sometimes cause significant delays, which are dangerous to the liberty interests of the prisoner, and can strain NSLA’s resources. Provision for partial waiver may enable NSLA to begin the merits assessment sooner, expediting its own processes.
However, partial waiver may not be amenable to appeals in many cases. The limits of waiver may shift depending on whether the issue arose at the beginning of the solicitor-client relationship and persisted, or whether it was a distinct incident,
225 C. Moore, personal communication (verbal), August 8, 2017. 83 or other problem. Formal provision for partial waiver in some situations may be a positive step toward limiting waiver of the appellant’s right to privilege, but may be too restrictive for the purposes of the appeal in other situations.
3.3 Consultation with Lawyers’ Insurance Association of Nova Scotia (LIANS)
Many Canadian appellate courts address the process of waiver associated with claims of ineffective assistance of trial counsel directly in their protocols. In Nova
Scotia, Lawyers’ Insurance Association of Nova Scotia (LIANS) addresses most practical elements of the waiver process. For the purposes of this report, I consulted with Stacey Gerrard, counsel for LIANS, regarding their position on prisoner appeals involving allegations of ineffective assistance, mainly with respect to waiver of solicitor-client privilege.
While some provincial protocols allow for or encourage partial waiver— waiver specific to particular aspects of the allegations—LIANS’s practice is to seek
“fulsome waiver,” especially in situations where the appellant is self-represented.226
Ms. Gerrard indicated that LIANS’s practice in these situations is to “go big” because allegations of ineffective assistance can broaden or snowball, and fulsome waiver from the outset of the process allows for these issues to be dealt with
226 S. Gerrard, personal communication (verbal), May 31, 2017. 84 efficiently if they arise.227 Trial counsel will only respond to the allegations raised in the appellant’s affidavit. However, LIANS’s position is that it is most practical to get full waiver at the beginning of the process, in order to avoid potential issues
“further down the road.”228
Therefore, LIANS preliminarily seeks “fulsome waiver” of privilege.
However, as discussed above, in situations where full waiver is not possible and the appellant has put communications with his or her trial counsel in issue, it is the
NSCA’s practice to find implied waiver on a partial basis.229
LIANS Process
LIANS is notified of a claim of ineffective assistance either by the Registrar upon receipt of the Notice of Appeal, by the trial counsel against whom the allegations are made, or sometimes by the Crown if it becomes aware of the allegations before the
Registrar. In this way, the process of notifying LIANS is flexible and works efficiently. Upon notification, LIANS sends a letter to the appellant seeking a waiver of privilege, and encouraging the appellant to seek independent legal advice
(Appendix AA). On behalf of the NSCA Joint Stakeholder group on Prisoner
227 The tendency for self-represented claims of ineffective assistance to become more complex throughout the process of the appeal was noted by the Ontario Crown in its submissions to the SCC in R. v. W.E.B. 228 S. Gerrard, personal communication (verbal), May 31, 2017. 229 R. v. Marriott, 2013 NSCA 12 at para. 32. 85
Appeals, Stacey Gerrard of LIANS, Megan Longley, Q.C., and Charlene Moore of
NSLA and Marian Fortune-Stone, Q.C. of the Provincial Crown developed a Draft
Waiver Information Sheet to provide appellants with information about privilege and the implications of waiving it for the purpose of an ineffective counsel appeal
(Appendix BB). Once this information sheet is completed and approved for use, it will be provided to appellants with the request for waiver sent by LIANS.
The level of LIANS’s involvement depends on the severity of the circumstances in the appeal. LIANS begins with an assessment of trial counsel’s file.
LIANS’s common practice is to proceed by way of trial counsel submitting affidavit evidence, according to the process laid out in the NSCA protocol. Typically, trial counsel, who are bound by ethical obligations to their clients and to the Court to assist by responding, are quick to respond, and efficiently prepare affidavits.230
While the NSCA protocol allows for counsel to seek leave to intervene, there have been very few instances in NS where LIANS has sought intervenor status.
LIANS seeks leave to intervene sparingly, as directed by the Court in R. v. Ross,
2012 NSCA 8231 and R. v. Fraser, 2010 NSCA 106. Judges of the NSCA confirm whether LIANS will be seeking leave to intervene, per the protocol, and set a
230 S. Gerrard, personal communication (verbal), May 31, 2017. 231 The process of motion for leave to intervene is outlined in R. v. Ross, 2012 NSCA 8 at paras. 9-22. 86 tentative motion to intervene date just in case. This practice functions efficiently, as it allows LIANS to review the fresh evidence and decide whether they will seek leave to intervene.232
In terms of the success of the existing protocol, both LIANS and NSLA expressed how helpful it is that waiver is addressed through telechambers. LIANS finds that this aspect of the process is efficient when addressed through chambers, and that it creates clarity for all those involved. NSLA agreed, and expressed that an even more active role on the part of the Court in this respect would be beneficial.233,234
LIANS sends watching briefs to the court to assist the court if issues related to the allegation or the waiver of privilege arise in hearing, and sits in on most telechambers calls for the same reason. LIANS will wait until an amended notice of appeal abandoning an allegation of ineffective assistance has been filed before dropping their involvement. In situations where the appellant is self-represented,
LIANS might be less inclined to walk away, as it is not uncommon for the issue of ineffective assistance to be re-introduced later by self-represented appellants— notwithstanding amended notices of appeal—out of frustration or confusion. 235
232 S. Gerrard, personal communication (verbal), May 31, 2017. 233 S. Gerrard, personal communication (verbal), May 31, 2017. 234 C. Moore, personal communication (verbal), August 8, 2017. 235 S. Gerrard, personal communication (verbal), May 31, 2017. 87
Extent of Waiver
Ms. Gerrard described “fulsome waiver” as an important priority for LIANS. While some provincial protocols mandate explicit waiver of solicitor-client privilege, either full or partial, the NSCA protocol does not—waiver is dealt with on a case-by-case basis, sometimes through telechambers. Ms. Gerrard did not think the adoption of a mandatory waiver form or requirement in the protocol would be more efficient and, in fact, raised concerns that if a waiver requirement were included in the protocol, appellants may be inclined to waive their privilege to move on to the next stage of the process, without seeking independent legal advice. Under LIANS’s current process, when waiver forms are sent to appellants in prison, LIANS encourages self- represented appellants to seek independent legal advice before waiving privilege.
When dealing with a self-represented appellant, Ms. Gerrard identified significant concerns that he or she will not appreciate the enormity of waiving privilege. If the formal protocol required mandatory waiver from the outset for advancement of the appeal, Ms. Gerrard worries that appellants may sign waiver forms without considering the implications.236
236 S. Gerrard, personal communication (verbal), May 31, 2017. 88
Challenges for LIANS
Ms. Gerrard expressed concern that many prisoner appellants simply do not realize how onerous it is to prove ineffective assistance. She explained that many do not know the relevant legal test, and have sometimes simply listed the allegation in their
Notice of Appeal based on jailhouse advice.237 Ms. Gerrard explained that beyond the high bar of the test from G.D.B., the documentary requirements associated with an ineffective assistance claim are cumbersome, and the possibility of a successful appeal as a result of the claim is small. Ms. Gerrard suggested that providing prisoners with legal information at the beginning of the appeal process, informing them about the difficulty of an appeal on the basis of ineffective counsel, would be helpful. She noted that judges sometimes warn appellants in telechambers or in person that the claim is onerous—not as a means of dissuading them from their appeal, but as a means of informing them about the project facing them. Ms. Gerrard suggested that more legal information available in prisons could help appellants to understand the undertaking, so that they can make informed decisions about their appeal strategies as self-represented appellants.238
237 S. Gerrard, personal communication (verbal), May 31, 2017. 238 S. Gerrard, personal communication (verbal), May 31, 2017. 89
4. THE ROLE OF TRIAL COUNSEL
4.1 Trial Counsel’s Performance
As laid out in G.D.B., the Court generally does not analyze trial counsel’s performance in the absence of evidence of prejudice. This aspect of the test from
G.D.B. serves to mitigate the impact on the trial counsel against whom the allegations have been made, whose reputation may be endangered by the litigation.
In situations where it is necessary for a court to examine trial counsel’s performance, the assessment is made on a case-by-case basis. Canadian appellate courts have not established a set standard for assessing competency.239 James Gumpert explains:
“Situations which may give rise to a claim of incompetence are infinitely variable.
The only approach which can be followed is the use of the ‘reasonableness’ standard.”240
A useful overview of the wide range of situations in Atlantic Canada wherein claims of ineffective counsel succeeded or failed recently was completed by Larlee
J.A. in Robichaud v. R., 2014 NBCA 1:
239 Dale E. Ives, “The ‘Canadian’ Approach to Ineffective Assistance of Counsel Claims” (2004) 42 Brandeis L.J. 239 at 258. 240 James A. Gumpert, “Ineffective Assistance of Counsel: Legal Issues” (Paper delivered at the C.L.E. Conference). 90
DISMISSED241 SUCCESSFUL
§ Failure to apply a legally correct § Counsel failed to adhere to the rule in framework (E.K.M. v. R., 2012 Browne v. Dunn (R. v. Gardiner, NBCA 64) 2010 NBCA 46) § Failure to call a material witness (R. § Failure to obtain telephone records v. Smith, 2012 NBCA 99; R. v. that would have challenged O’Keefe, 2012 NLCA 25; R. v. important aspects of the Chappell, 2012 PECA 10) complainant’s testimony (R. v. Lakas, 2012 NBCA 67) § Flaw or weaknesses in defence counsel’s cross-examination or lack § Counsel’s errors and omissions of aggressiveness (R. v. Banks, 2012 prevented […] full answer and NBCA 80) defence to the Crown’s case; verdict doubted, process unfair (R. v. Ross, § Failure to put apparent 2012 NSCA 56) inconsistencies between [her] statement to the police and her testimony in court to the victim; decision not to call an officer to testify (R. v. Dugas, 2012 NSCA 102)
§ Pressured into prematurely pleading guilty (R. v. Ogden, 2013 NSCA 25)
§ Counsel did not consult accused before agreeing to federal incarceration on his behalf (R. v. Gogan, 2011 NSCA 105)
§ Faults in counsel’s preparation for and conduct of trial (R. v. Buckley, 2013 NSCA 73)
241The information in this table was quoted directly from Robichaud v. R., 2014 NBCA 1 at para. 31, with citations added. 91
In addition to the above-described scenarios, it is notable that the NS case R. v. Fraser, 2011 NSCA 70, in which the appellant successfully appealed his conviction on the basis of ineffective assistance of trial counsel, raises issues of cultural competency.242 The Court stated:
The appellant complains that despite repeated and specific inquiries, he was never advised by his trial counsel that he had a statutory right to challenge potential jurors for cause on the basis that he was black, the complainant was white, and that jurors might discriminate against him on account of those circumstances. After a thorough review of the record, I am satisfied that the appellant’s complaint is justified.243
Richard Devlin and David Layton considered R. v. Fraser in-depth in “Culturally
Incompetent Counsel and the Trial Level Judge: a Legal and Ethical Analysis”:
On one level, Fraser can be read as no more than an illustration of an appellate court applying the doctrine of ineffective representation by counsel in a particularly egregious case. However, the judgment can also be read as a potential example of ‘cultural incompetence’, by which we mean a situation where a lawyer lacks the knowledge, skills and attitude to relate to the social context of his or her client, and is thereby incapable of appropriately advancing the client’s rights and legitimate interests at trial. An argument might be made that Mr. Fraser’s trial counsel lacked cultural competence insofar as he did not have the knowledge, skills and attitude to properly appreciate and address his client’s concerns in facing an all-white jury in Nova Scotia, a province with a disturbing history of race relations.244
Jill Perry, president of the Nova Scotia Barrister’s Society (NSBS), describes the challenges of cultural incompetency in solicitor-client relationships:
242 R. v. Fraser, 2011 NSCA 70. 243 R. v. Fraser, 2011 NSCA 70 at para. 57. 244 Richard Devlin and David Layton, “Culturally Incompetent Counsel and the Trial Level Judge: A Legal and Ethical Analysis” (2014) 60 Crim LQ 361 at 361. 92
Even if [members of systemically disadvantaged groups] are able to find an appropriate and affordable legal service provider, that service can be rendered meaningless at best (and potentially harmful at worst) if cultural incompetence prevails. In addition to the risks of appearing insensitive or offensive, critical substantive aspects of an individual’s legal situation may be missed, to the detriment of both the individual and the lawyer. Marginalization may be compounded as a result [emphasis in original].245
Given historical and systemic issues of racism in Nova Scotia, it is important for the
NSCA to be aware of cultural incompetence as a wellspring of ineffective assistance of counsel.
Similarly, Emma Halpern, on behalf of the Elizabeth Fry Society, noted that trial counsel must be knowledgeable about and aware of issues of abuse and abusive relationships, specifically when representing women co-accused with male partners.
Ms. Halpern flagged gender-based analysis as an area that is currently lacking, both on the part of the criminal Bar and on the part of the judiciary. In terms of ineffective counsel, Ms. Halpern emphasized that issues associated with domestic violence should be key considerations in defence strategy. She recommended education for the Bar to improve competency of trial counsel regarding the unique circumstances of female accused who are abused by their partners, especially when considering pleas.246
245 Jill Perry, “Call to Action #27: The cultural competence imperative” The Society Record (2016) at 5. 246 E. Halpern, personal communication (verbal), August 2017. 93
4.2 Education and Training
The recent BCCA decision R. v. Hamzehali, 2017 BCCA 290 allowed an appeal based on ineffective assistance of trial counsel related to counsel’s failure to translate or otherwise investigate relevant text messages; counsel’s failure to communicate the possibility of a plea to the accused; and counsel’s failure to inform the appellant about the possibility of deportation. Bennett J.A. held that the “cumulative effect” of counsel’s performance at trial “clearly [fell] below the standard of reasonable professional judgment.”247 Bennett J.A. further stated: “even if the outcome in this case was reliable, which I reach no conclusion on, the process through which the verdict was reached was unfair” and “thereby a miscarriage of justice occurred.”248
Appellate counsel, Richard Fowler, was quoted in an op-ed piece after the decision was released saying that the mistakes identified by the Court of Appeal were “utterly avoidable” and caused by gaps in legal training. He specifically identified mentoring, supervision, and “a culture of apprenticeship” as necessary to avoid such issues.249 Fowler, moreover, identified apprenticeship opportunities as an obligation on the part of senior counsel to younger lawyers. 250
247 R. v. Hamzehali, 2017 BCCA 290 at para. 88. 248 R. v. Hamzehali, 2017 BCCA 290 at paras. 89-90. 249 Ian Burns, “Appeal court ruling contains a ‘lot of lessons’ for legal profession: lawyer”, The Lawyer’s Daily 11 August 2017. 250 Ian Burns, “Appeal court ruling contains a ‘lot of lessons’ for legal profession: lawyer” The Lawyer’s Daily (11 August 2017). 94
Wendy Turner of LISNS explained that a large proportion of ineffective assistance claims are rooted in clients’ misunderstanding the limits of the lawyer’s role, and identified plain language communication between trial counsel and his or her client as a key factor in preventing claims of ineffective assistance.251
Ms. Turner explained that if there is a way to help a client earlier on to better understand the criminal trial process, then it might be possible to avoid some of the situations in which these allegations arise. The calls LISNS receives regarding ineffective assistance often concern matters such as why a particular piece of evidence was not introduced at trial. Not only is this a legal opinion that LISNS is unable to give, it is potentially an issue that trial counsel could have explained to his or her client during defence preparation. Ms. Turner acknowledged that the solution is not as simple as improving communication between lawyers and their clients in all cases. However, in some cases, training facilitated by the NSBS or LIANS on proper communication (especially regarding the trial process, the evidentiary process, and pleas) between lawyers and clients would help to address some of these claims. Ms. Turner suggested specifically that lawyers take the time at the beginning of their relationship with their clients to lay out what can be expected in terms of
251 See also: Nora Rock, “Criminal lawyers: Clear communication your best defence against allegations of ineffective assistance” AvoidAClaim blog, 2 April 2015; and Stacey Gerrard, “RISK PRACTICE MANAGEMENT TIP: Claims of ineffective trial counsel—Effective communication” Nova Scotia Barrister’s Society. 95 trial strategy and what the lawyer is able or prepared to present as evidence, as well as the nature of a plea bargain.252
In terms of what kind of training is already available to the Bar, LIANS conducts regular file management workshops and training opportunities for lawyers, to ensure that counsel are performing competently, and to ensure that counsel are prepared and well-equipped to respond to ineffective assistance claims.253
4.3 Consultation comments from the Nova Scotia Criminal Lawyers Association
I consulted with Luke Merrimen, President of the Nova Scotia Criminal Lawyers
Association (NSCLA), about the private criminal Bar’s position on allegations of ineffective counsel in prisoner appeals. I asked whether members of the NSCLA have concerns or suggestions regarding: allegations of ineffective counsel generally; waiver of solicitor-client privilege; transfer of case files; and whether the NSLCA had any thoughts or feedback on the possibility of an enhanced gatekeeping role for the Court in assessing claims without merit, as in Quebec.
Mr. Merrimen consulted the NSLCA broadly through its email newsletter.
Although participation in the questionnaire was low, Mr. Merrimen noted that all responses indicated concern over what members of the private criminal Bar
252 W. Turner, personal communication (verbal), August 2017. 253 S. Gerrard, personal communication (verbal), May 31, 2017. 96 perceived to be the “significant” and “marked” increase in the number of claims of ineffective assistance filed in recent years.254 He commented that ineffective counsel claims sometimes appear to be included in Notices of Appeal by rote, rather than as valid claims. Mr. Merrimen also noted that those who replied were strongly in favour of an enhanced gatekeeping role on the part of the Court, to head off meritless claims before the commencing the fresh evidence process. Private counsel have an interest in limiting the number of meritless claims that reach the fresh evidence stage, in order to avoid what becomes a “timely and costly” process, and, in addition, to avoid negative reputational issues associated with such allegations, if indeed unfounded.255
In addition, Mr. Merrimen personally held the view that an enhanced gatekeeping role on the part of the courts in eliminating meritless claims would be in line with the SCC’s strong stance against judicial delays in the court system taken
256 257, 258 in R. v. Jordan and R. v. Cody.
254 L. Merrimen, personal communication (verbal), August 2017. 255 L. Merrimen, personal communication (verbal), August 2017. 256 R. v. Jordan, 2016 SCC 27. 257 R. v. Cody, 2017 SCC 31. 258 L. Merrimen, personal communication (verbal), August 2017. 97
5. THE ROLE OF THE CROWN
5.1 Consultation comments from Federal Crown
Challenges for the PPSC
I consulted with David Schermbrucker of the Federal Crown. Mr. Schermbrucker identified the Public Prosecution Service of Canada’s (PPSC) main concerns with ineffective assistance claims as: ensuring that claims are “(1) properly advanced and
(2) properly addressed [and] (3) [t]hat frivolous claims are identified and eliminated once they are clearly identified as frivolous.”259 In terms of the challenges of prisoner appeals alleging ineffective counsel, the Federal Crown finds the time and effort that is needed to respond to such appeals to be their most challenging aspect.260
Mr. Schermbrucker explained that “[t]he typical prisoner appellant demonstrates no ability to put together coherent affidavit material for a fresh evidence application”—most do not provide a proper foundation, and typically do not address “the legal criteria which the Court needs in order to entertain the allegation.”261 This results in delay, “with frequent telechambers discussions that often do not produce tangible results or measurable advancement.”262
259 D. Schermbrucker, personal communication (written), August 2017. 260 D. Schermbrucker, personal communication (written), August 2017. 261 D. Schermbrucker, personal communication (written), August 2017. 262 D. Schermbrucker, personal communication (written), August 2017. 98
Practical Suggestions from the PPSC
Mr. Schermbrucker explained that the information package sent by the Registrar to prisoner appellants is accessible to those with legal training, but it can be challenging for the typical prisoner to understand. He stated that many prisoners ignore or fail to adequately follow the guidance provided. (Mr. Schermbrucker noted that this is not a criticism of the guidance provided by the Registrar, because neither the Registrar nor the Court can provide legal advice.) Thus, the Court should reassess legal informational materials provided to inmates to ensure all materials are in plain language.
The Federal Crown recommended a more robust telechambers process. Mr.
Schermbrucker suggested that the Court provide minutes of telechambers appearances to the prisoner appellant:
It would likely be useful if the telechambers appearances were memorialized (or ‘minuted’ so that the prisoner appellant could receive a written summary of each appearance, along with clear directions from the Court as to what deficiencies there are in the appellant’s material, and as to what are the appellant’s next steps.263
Mr. Schermbrucker explained that it is his own practice to record minutes of telechambers appearances in a letter addressed to the Registrar, and to copy that letter to the appellant. However, he noted that “it is likely better that this type of
263 D. Schermbrucker, personal communication (written), August 2017. 99 communication comes from the Court, not the Crown.” 264 The Federal Crown held that waiver should be raised as early as possible in the advancement stage, and suggested using minutes of telechambers to put the prisoner on notice, in writing,
“so that waiver is clearly on the table at the outset.”265
Mr. Schermbrucker stated that in practice, addressing waiver of solicitor- client privilege has not worked as well as it should. He explained that the Court should be clear in discussions with prisoner appellants about the necessity of waiver as soon as possible after the Notice of Appeal alleging ineffective assistance is filed, and that “[u]ncertainty over the waiver process results in unnecessary and avoidable delay in the pursuit of the appeal.”266 Mr. Schermbrucker described the importance of having a draft Order in place specifically stating waiver of solicitor-client privilege, and authorizing trial counsel to respond by way of a motion to adduce fresh evidence on the appeal, which the telechambers or motions judge is prepared to grant. This draft Order practice was previously discussed at the Joint Stakeholder
Group on Prisoner Appeals meetings, and is currently in place.267 In addition, Mr.
Schermbrucker noted that “it may be desirable for the Court to invite affected trial counsel to attend a telechambers meeting.”268
264 D. Schermbrucker, personal communication (written), August 2017. 265 D. Schermbrucker, personal communication (written), August 2017. 266 D. Schermbrucker, personal communication (written), August 2017. 267 D. Schermbrucker, personal communication (written), August 2017. 268 D. Schermbrucker, personal communication (written), August 2017. 100
Timelines
The Federal Crown raised the issue of timelines as a practical aspect of the process that could be improved upon, and suggested: “the Crown’s duty to order transcripts and file an appeal book in a timely fashion, and bring a motion under Rule 91.12 to set a hearing date, should be enforced.”269 Moreover, with respect to more stringent enforcement of appeal timelines, Mr. Schermbrucker stated:
[M]any prisoner appellants will not comply with their filing timelines, for e.g. a motion to adduce a fresh evidence affidavit. Presently it seems that the telechambers process puts into abeyance the scheduling of the appeal hearing. Scheduling the appeal hearing as per the normal process would impose a firm deadline on the prisoner appellant and encourage him or her to move the allegation forward.270
This statement is consistent with concerns NSLA raised about enforcing a consistent timeline between appeals, for NSLA’s own ease of tracking appeals, and to better facilitate NSLA’s communication with prisoner appellants.
Appointment of a Commissioner
The Federal Crown also identified concerns regarding cross-examination of the deponents of fresh evidence such as affidavits adduced in support of the claim of incompetence against the impugned trial counsel, noting that institutionally, as it is a review court, “the Court is ill-suited to conduct that kind of evidence-gathering and fact-finding, or to make credibility findings where credibility is in issue (as it
269 D. Schermbrucker, personal communication (written), August 2017. 270 D. Schermbrucker, personal communication (written), August 2017. 101 likely will be where ineffective assistance is in issue.)”271,272 Mr. Schermbrucker explained that in ideal situations, credibility findings are not required and “the parties can agree to deposition of the affiants and cross-examination before a commissioner, with transcripts provided to the hearing panel.”273
Mr. Schermbrucker explained that Rule 90.47274 “contemplates that the Court may receive evidence by way of deposition, and presumably cross-examination, without requiring the panel to hear the evidence and make any adjudication on credibility.”275 He further noted that section 683(1)(e) of the Criminal Code276
“contemplates the appointment of a commissioner to resolve factual matters involving ‘prolonged examination of writings or accounts, or scientific or local investigation,’” but that the section does not appear to apply directly to allegations of ineffective assistance.277 Nonetheless, the Federal Crown makes the following recommendation:
[T]he federal Crown does recommend that the Court engage a commissioner to take the depositions of the prisoner appellant and trial counsel (if trial counsel wishes to participate). The Crown should have the ability to cross- examine, with appropriate restraint and respectfulness. The commissioner
271 D. Schermbrucker, personal communication (written), August 2017.
272 Mr. Schermbrucker cited R. v. Marriott, 2013 NSCA 12 as an example in which appellant’s counsel’s cross examination of trial counsel before the Court raised concern.
273 See: R. v. Nevin, 2006 NSCA 72, in which this procedure was followed. 274 Civil Procedure Rules of Nova Scotia, r 90.47. 275 D. Schermbrucker, personal communication (written), August 2017. 276 Criminal Code, R.S.C. 1985, c. C-46, s. 683(1)(e). 277 D. Schermbrucker, personal communication (written), August 2017. 102
would then be able to make findings of fact, including credibility, and report to the panel of the Court hearing the appeal. The report would form part of the record.278
Leave Approach
In contrast to the NSCLA’s position, the Federal Crown did not think an enhanced gatekeeping role for the NSCA concerning ineffective assistance claims would be advisable. Mr. Schermbrucker noted that while many prisoner appellants’ claims of ineffective assistance of trial counsel are frivolous, “the Court’s approach to these claims must assume as a starting premise that at least one is valid and therefore that all are potentially valid.”279 Of the leave requirement employed by the QCCA, Mr.
Schermbrucker stated:
The practice in the Quebec Court of Appeal, and the proposal by Ontario in W.E.B. (SCC), appear to be driven by the volume of claims. Our Court does not have that problem of volume. What the Court has a problem with [is] prisoner appellants advancing their claims, and the Court addressing them, in an efficient manner. As well, there is a danger that imposing a gatekeeping function—i.e., a leave requirement—would serve to weed out those prisoner appellants who are unable to competently advance their claims; it would serve no meaningful purpose in addressing those claims.280
278 D. Schermbrucker, personal communication (written), August 2017. 279 D. Schermbrucker, personal communication (written), August 2017. 280 D. Schermbrucker, personal communication (written), August 2017. 103
In terms positive components of the Court’s current practice, the Federal
Crown has found that the practice of assigning a single justice to the file until preliminary procedural matters are addressed has been beneficial.
5.2 Consultation comments from the Provincial Crown
Challenges for the Provincial Crown
Consultation comments from the Provincial Crown were provided jointly by Marian
Fortune-Stone, Q.C., Mark Scott, Q.C., and Butch Fiske, Q.C. The Public
Prosecution Office of Nova Scotia identified its primary concern regarding ineffective counsel claims as “the dedication of resources” in terms of time and financial resources required by both Crown counsel and the Court.281 The Provincial
Crown noted the significant cost associated with obtaining transcripts of every court appearance. In addition, the fresh evidence process was identified as a major strain on resources:
Crown counsel must canvass and, if necessary, obtain affidavits from others, including former trial Crowns, seek additional police investigation, identify any missing materials of relevance, and file briefs on the admissibility of the proposed evidence. Fresh evidence motions add court time. At least a full day and occasionally, 2 days are required. Factoring in the above including preparation of facta and court time, the financial and human resource drain is apparent.282
281 M. Fortune-Stone, Q.C., M. Scott, Q.C., and B. Fiske, Q.C., personal communication (written), August 2017. 282 M. Fortune-Stone Q.C., M. Scott, Q.C. and B. Fiske, Q.C., personal communication (written), August 2017. 104
The Provincial Crown indicated that “enhancing the current explanation about the nature and purpose of a waiver” would be helpful, particularly in terms of making unrepresented appellants “aware of the potential consequences of failing to execute a formal waiver or complete the necessary documentation (e.g. affidavit) in a timely manner.” 283
Leave Approach
The Provincial Crown made the following comments regarding the QCCA approach of relying on the leave requirement when addressing ineffective assistance claims:
Any procedure which would serve to ‘streamline’ the process for dealing with claims of ineffective assistance would be welcomed, but more study of the Quebec approach would be required. […] To adopt the Quebec approach, a chambers judge would have to be satisfied that the self-represented is sufficiently articulate, and able to express the nature of the apparent failure(s). The judge could consider whether, on the stated facts (taken at their highest), the appeal is ‘doomed to failure’ before dismissing the ground. Often the complaint involves facts that are disputed by the lawyer; but, if borne out, may constitute incompetence. A review of the Quebec approach would assist in identifying, for example, whether the process has reduced the complaints and the Court’s procedure for examining factual and credibility assessments at a summary dismissal hearing. A summary dismissal type of mechanism already exists in the Rules, however, for unrepresented appellants’ complaints, the number capable of being removed from the docket is difficult to assess. […] Although not related to unrepresented appellants, leave requirement could be of assistance when an appellant is represented. That process would ensure due diligence has been completed before the ground is advanced or continued.
283 M. Fortune-Stone, Q.C., M. Scott, Q.C., and B. Fiske, Q.C., personal communication (written), August 2017. 105
As well, ineffective counsel allegations can arise indirectly (or directly) during argument or in a factum. When that occurs, delays result and appellate Crown (and former trial counsel) are, for example, prevented from being properly prepared in the first instance or able to have the time to access materials required for a considered position. Scrambling to ‘catch up’ within compressed time frames serves few interests. Former trial counsel, including trial Crown, may be left with the unfortunate specter of incompetence when the ground of appeal was not formalized in advance. Given the time between when an appeal is filed and heard, raising the issue late in the process would, hopefully, be an exceptional circumstance. A leave requirement could assist in ensuring that to be so. 284
5.3 Duty of the Crown re: Ineffective Assistance Claims
The Crown’s duty to ensure trial fairness has been identified in some commentary as a factor militating toward a presumption of competence on the part of trial counsel. Although there is very little commentary on this aspect of ineffective counsel claims, a 2004 “Report on the Prevention of Miscarriages of Justice” by the
Department of Justice of Canada noted that “[p]roviding qualified defence counsel is among the most important safeguards against wrongful convictions,”285 and recommended the development of guidelines regarding “the responsibilities of
Crown counsel when they suspect an accused person may not be getting effective counsel” to “assist prosecutors in these difficult ethical situations.”286
284 M. Fortune-Stone, M. Scott and B. Fiske, personal communication (written), August 2017. 285 Canada, FPT Heads of Prosecutions Committee Working Group, Report on the Prevention of Miscarriages of Justice, (Ottawa: Department of Justice Canada, September 2004) at 149. 286 Canada, FPT Heads of Prosecutions Committee Working Group, Report on the Prevention of Miscarriages of Justice, (Ottawa: Department of Justice Canada, September 2004) at 152. 106
In the appeal context, the Provincial Crown noted that there is a “heavy onus” on the Crown “to ensure that issues raised by the appellant are thoroughly and accurately canvassed by the Crown, on their behalf and that of the Court.”287
Throughout the process, “the Crown can be called upon to ensure that the unrepresented appellant (or respondent) understands the process and/or the content of the materials provided by the Registrar’s office.”288 This creates a difficult situation, the Provincial Crown noted, in scenarios where the appellant is seeking legal advice that the Crown is not able to give. The Provincial Crown also raised issues with the appearance of fair process, as they stated that, especially in cross- examination scenarios, “the Crown’s right to be a strong advocate can be misconstrued by the public and/or unrepresented party as unfair.”289 Finally, the
Provincial Crown described that while they do not occupy the role of amicus, they
“often do additional fact verification, file cases and legal argument, gather the transcripts, and sometimes, as a courtesy, assist in facilitating the presence and testimony of witnesses.”290
Mr. Schermbrucker provided the following comments regarding the duty of the Federal Crown to assist self-represented appellants:
287 M. Fortune-Stone, M. Scott and B. Fiske, personal communication (written), August 2017. 288 M. Fortune-Stone, M. Scott and B. Fiske, personal communication (written), August 2017. 289 M. Fortune-Stone, M. Scott and B. Fiske, personal communication (written), August 2017. 290 M. Fortune-Stone, M. Scott and B. Fiske, personal communication (written), August 2017. 107
When the appellant is self-represented, which is the case for any prisoner appeal, the Court has a duty to assist the appellant in exploring all issues arising from the record which might impact on the legal correctness or justness of the verdict below. This includes an examination of arguable errors of law made by the trial judge (e.g. rulings as to admissibility of evidence), the (un)reasonableness of the verdict, as well as possible miscarriage of justice. The Crown’s duty then becomes to assist the Court in this regard. It is customary for respondent Crown counsel to bring to the Court’s attention any issues which Crown counsel feels might be worth the attention of the Court. Crown counsel does so dispassionately and impartially, consistent with the Crown’s role as a quasi minister of justice seeking to see only that justice is done. These fancy words come down to this: if respondent Crown counsel sees that the record reveals a problem with the verdict, Crown counsel is obligated to raise it. An obvious example is were Crown counsel notices that there was a problem going to jurisdiction – see, e.g., Trites v. R., 2011 NBCA 5, at para. 11, where the validity of the accused’s election as to mode of trial was questioned for the first time at the appeal hearing. Less obvious will be cases where an apparent Charter breach may have been overlooked or inadequately argued at trial. It is not Crown counsel’s role to investigate the trial on behalf of the prisoner appellant, but there will be cases where Crown counsel knows that if the appellant had counsel on appeal, counsel would be raising an issue; Crown counsel will often then alert the Court to the issue, again in keeping with the Crown’s role. The Crown’s job in this regard becomes very difficult when the prisoner appellant claims ineffective assistance of trial counsel. Usually the record on appeal does not support the claim. The prisoner appellant must therefore enhance the record with fresh evidence, and usually does so inadequately. It is likely not appropriate for Crown counsel to assist the appellant by taking positive steps to adduce fresh evidence. For example, it is probably inconsistent with the role of the Crown to speak to trial counsel outside of court and ex parte. Crown counsel can and should assist the prisoner appellant in obtaining documents, or providing contact information, or other administrative matters of that nature. 291
291 D. Schermbrucker, personal communication (written), August 2017. 108
Mr. Schermbrucker commented, in conclusion, that “when the appellant claims ineffective assistance of trial counsel, Crown counsel is in a difficult position and her options are limited to technical or administrative assistance to the appellant and to the Court.”292
The difficult position of the Crown in fulfilling its duties with respect to unrepresented prisoner appellants was examined in the context of an application for state-funded counsel in R. v. Bernardo, 1997 CanLII 2240 (ONCA), in which
Doherty J.A. stated:
In inmate appeals, the court expects and receives the full co-operation of counsel appearing for the Crown. Often, the Crown alerts the court to matters which are favourable to the appellant and sometimes even assists the appellant in making his or her submissions. Given the notoriety of this case, and the unspeakable horror of the appellant’s crimes (even on his own admissions), it would be unrealistic, and unfair to Crown counsel to expect that he or she would be able, despite best intentions, to provide the kind of assistance to the appellant which is routinely provided to other in-person appellants. It is better for the Crown if this appellant has his own advocate.293
While the Crown plays a sometimes-substantial role in assisting self-represented appellants in criminal matters, there are limits to the Crown’s ability to assist, and limits to the appropriateness of such assistance.
292 D. Schermbrucker, personal communication (written), August 2017. 293 R. v. Bernardo (1998), 1997 CanLII 2240 (ONCA) at para. 26, 121 C.C.C. (3d) 123 (Ont. C.A.). 109
6. PRISONER APPEALS PROCESS
6.1 Practical approach: NSCA
In Nova Scotia, when a self-represented prisoner appellant files a Notice of Appeal alleging ineffective assistance of trial counsel, he or she is sent an application for
NSLA. To secure state-funded counsel, appellants are required to first exhaust all avenues to obtain counsel through NSLA. If they wish to be represented by counsel, appellants must apply to NSLA for assistance. Prisoner appellants are also sent a waiver form to enable NSLA to consider correspondence otherwise protected by solicitor-client privilege for the purposes of their merits assessment. The merits assessment typically takes one to three months but, as discussed above, can take longer depending on the length of the trial transcript and complexity of the issues on appeal. If NSLA declines to provide counsel, the appellant may appeal the decision.
If the appeal is dismissed, the appellant may apply for state-funded counsel before the NSCA. Appellants are provided with a section 684 information package by the
Registrar upon request by the chambers judge, comprised of: a letter explaining section 684 (Appendix H); materials for filing a Notice of Motion (Appendix I) and
Affidavit (Appendix J); and a plain-language guide for making a motion for state- funded counsel (Appendix K).
110
6.2 NS Legal Aid Application
Upon notification of a prisoner appeal, NSLA sends the prisoner appellant the following materials:
1. NSLA application form;
2. Draft affidavit;
3. Draft waiver (if ineffective counsel was explicitly or impliedly alleged);
4. A covering letter explaining the process of applying for Legal Aid.
The “Waiving Solicitor/Client Privilege” one-page legal information sheet
(Appendix BB, discussed at p. 85 of this report) will be included in this package, once it has been finalized and approved for use. NSLA also provides a letter to prisoner appellants following teleconference calls “to confirm next steps as it relates to their application and assessment process for legal aid.”294 In terms of legal information at this stage, each NSLA office can provide summary legal advice services to inmates in correctional facilities. NSLA has counsel that meet with clients at Springhill, Nova and Central Nova Scotia Correctional Facility. NSLA noted that they have been in discussion with the Nova Scotia Office of the
294 C. Moore, personal communication (written), August 8, 2017. 111
Ombudsman to provide information regarding their services, and that some counsel at NSLA would be interested in increasing their presence in the institutions.295
Once the prisoner submits his or her application to NSLA and waives solicitor-client privilege, the NSLA determines whether he or she is financially eligible. Most prisoners are financially eligible. If a prisoner is eligible, NSLA begins the process of the merits assessment of his or her file.
Merits assessments typically take 1-3 months to complete, but the amount of time it takes to complete a merit assessment varies between cases, and some appeals may take several months to review. NSLA provided the following list of factors that may lengthen the merits assessment process:
Ø Type of mater—homicides and dangerous offender applications take a great
deal of time because of the transcripts that have to be reviewed and the
complexity of the law.
Ø Number and nature of other appeals currently being assessed by NSLA or
pending assessment by NSLA.
Ø Due to the significant consequences of conviction/dangerous offender
declaration, a very flexible standard of merit is employed. So, it may take time
to flesh out an apparently marginal ground of appeal, as NSLA owes a
295 C. Moore, personal communication (written), August 8, 2017. 112
response to the client and to the Service Delivery Director, if publicly funded
counsel is appropriate.
Ø The length of time it takes to obtain copies of the transcripts and/or appeal
books to ensure a thorough merit assessment is undertaken. 296
Part of the merits assessment involves discerning the actual grounds of appeal. It is common for appellants who appear to have alleged ineffective counsel to explain at this stage that in fact they were happy with the work of their lawyer, but otherwise unhappy with the outcome. Because it is relatively easy to amend a Notice of Appeal to drop the ineffective assistance ground of appeal, this aspect of the process is not a major concern, but it is part of the timeline of the review process. 297
NSLA noted that in some situations, ineffective counsel is not raised by the inmate, but is found by NSLA during the merits assessment process. In these situations, the Registrar is notified through the amended Notice of Appeal and the
NSCA Protocol is triggered at that stage.298
The merits assessment process can be very challenging when prisoners do not want to waive solicitor-client privilege. Refusal to waive privilege can lead to an impasse, causing the break-down of the relationship between the prisoner and
296 C. Moore, personal communication (written), August 8, 2017. 297 C. Moore, personal communication (verbal), August 8, 2017. 298 C. Moore, personal communication (verbal), August 8, 2017. 113
NSLA. The NSLA has found it very helpful when a chambers judge determines that by raising the allegation of ineffective assistance and putting the performance of trial counsel in issue, solicitor-client privilege with respect to the allegations has been implicitly waived. NSLA have correspondingly expressed an interest in increased involvement on the part of the Court in this respect. NSLA has found that often prisoners have concerns regarding waiver of privilege—sometimes because they do not understand the concepts of privilege and/or waiver, but other times because of the bearing full waiver could have on prisoners’ other ongoing legal proceedings. If a NSLA lawyer is continually asking an appellant for signed waiver to move on to the merits assessment, it can be a source of friction in the relationship.299
When there are issues regarding waiver, NSLA sends lawyers (usually staff lawyers, but sometimes certificate lawyers) to the prisons where would-be appellants are incarcerated to explain in person, following telechambers in which the allegations of ineffective assistance were discussed. This process has mixed results for obtaining waiver.
For these reasons, NSLA is open to the adoption of a protocol option for partial waiver, as is currently practiced in British Columbia. Current practice in Nova
Scotia is for appellants to sign a form providing “fulsome waiver,” but in situations
299 C. Moore, personal communication (verbal), August 8, 2017. 114 where this is not a good option for appellants, NSLA would be interested in an addition to the protocol formalizing waiver to the extent necessary.
Furthermore, in terms of improvements that may be made to the existing process, currently the Registrar sends all Notices of Appeal from prisoners to NSLA, but sometimes NSLA receives Notices where counsel is on the file, and reaching out to them can create confusion. It is important that Notices be clearly differentiated, so that it is clear to NSLA which prisoners have appellate counsel and which do not.300
From the time a prisoner files his or her Notice of Appeal with the NSCA, there is currently no enforced timeline in place for establishing a first conference call time. Other provincial protocols do have standardized timelines for this aspect of the appeals process, which place deadlines on the Crown to file all materials, including the trial transcript. NSLA notes that all players involved are absolutely doing their best to move things along as quickly as possible, but that a standardized and easily communicable timeline would be preferable for the NSLA’s own tracking of the progress of appeals, and for keeping prisoners informed of the status of their appeal.
This information is important for building trust and understanding between NSLA counsel and prisoner appellants. The NSLA calls prisoners and writes letters to
300 C. Moore, personal communication (verbal), August 8, 2017. 115 update them about the progress of the appeal, and suggests that the Court include in its protocol some provision for updating prisoners on developments on the Court’s end as well.301
While some provincial protocols, such as the ONCA protocol, impose mandatory deadlines throughout the process, NSLA indicated that this kind of system would not necessarily be helpful in all cases. A case-by-case, flexible approach as outlined in R. v. Graham302 may be best-suited to the NS context, in which all parties are aware of a consistent timeline that could be deviated from flexibly with notice, and that provides updates on the status of the appeal to inmate appellants.
6.3 Application for state-funded counsel (s. 684)
When allegations of ineffective counsel are raised by self-represented prisoner appellants, the Court is often required to address an application for state-funded counsel, pursuant to section 684 of the Criminal Code. It reads:
684(1) Legal assistance for appellant – A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.
301 C. Moore, personal communication (verbal), August 8, 2017. 302 R. v. Graham, 2014 ONCA 566. 116
(2) Counsel fees and disbursements – Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal. (3) Taxation of fees and disbursements – Where subsection (2) applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court of appeal and the registrar may tax the disputed fees and disbursements.303
In the context of allegations of ineffective counsel in prisoner appeals, in which an appellant cannot access his or her own lawyer, the scheduling of a section 684 hearing (and the possible subsequent denial of the section 684 claim) lengthens the process of the appeal, contributing to problematic delays. State-funded counsel applications are a practical concern associated with ineffective assistance appeals which are not directly contemplated by G.D.B., as Davison describes:
In Canada, Legal Aid budgets have been slashed over the last decade or so. B. (G.D.) does nothing to address the ‘real life’ aspects of the day-to-day practice of law in this country which arise from the different financial resources available to accused from different social strata in, and prosecuted in different regions of, Canada.304
State-funded counsel: Jurisprudence
Section 684.(1) of the Criminal Code authorizes the Court of Appeal to assign state- funded counsel to represent an individual where “it appears desirable in the interests
303 Criminal Code, R.S.C. 1985, c. C-46, s. 684. 304 Charles B. Davison, “Importing Strickland: Some Concerns in Light of the Supreme Court’s Adoption of the American Test for Ineffective Counsel” (2000) 32 Crim. Reports 220 at 222. 117 of justice that the [individual] have legal assistance but lacks sufficient means to obtain such aid.”305 Section 684, therefore, operates in situations in which an application for Legal Aid has been denied, and the individual has no other means to obtain legal representation.
As described above, upon exhaustion of the NSLA process, prisoner appellants are provided with a section 684 information package from the Registrar, for the purposes of their section 684 application (Appendices G-J).
The Court or a judge has the discretion to appoint state-funded counsel “in the interests of justice.”306 Doherty J.A. described the application of section 684 as follows:
The phrase ‘the interests of justice’ is used throughout the Criminal Code. It takes its meaning from the context in which it is used and signals the existence of a judicial discretion to be exercised on a case-by-case basis. The interests of justice encompass broad based societal concerns and the more specific interests of a particular accused.307
The assessment of whether the “interests of justice” would be met by the appointment of state-funded counsel includes the following considerations:
i. The merits of the appeal;
ii. The complexity of the appeal;
305 David Watt and Michelle Fuerst, The 2017 Annotated Tremeear’s Criminal Code (Toronto: Thomson Reuters, 2016) at 1303. 306 Criminal Code, R.S.C. 1985, c. C-46, s. 684. 307 R. v. Smith, 2001 NFCA 38. 118
iii. The appellant’s capability;
iv. The court’s role to assist; and
v. The responsibility of Crown counsel to ensure that the applicant is treated
fairly.308
This inquiry should begin with an assessment of the merits of the appeal, because meritless appeals “will not be helped by the appointment of counsel.”309 However,
Doherty J.A. emphasizes that the threshold is low:
The merits inquiry should not, however, go any further than a determination of whether the appeal is an arguable one. I would so limit the merits inquiry for two reasons. First, the assessment is often made on less than the entire record. Second, any assessment beyond the arguable case standard would be unfair to the appellant. An appellant who has only an arguable case is presumably more in need of counsel than an appellant who has a clearly strong appeal. 310
The overarching societal interest in “effective appellate review of convictions” is also weighed in consideration.311 As recognized in R. v. Bernardo and reiterated by
Chiasson J.A. of the BCCA:
[A] consideration of whether to appoint counsel should not be dictated by the fiscal limitations of the legal aid system. In my view, the fact that an applicant has been refused legal aid on financial grounds is relevant, but not determinant.312
308 R. v. Kelsie, 2016 NSCA 72. 309R. v. Bernardo (1998), 1997 CanLII 2240 (ONCA), 121 C.C.C. (3d) 123 at para. 22. 310R. v. Bernardo (1998), 1997 CanLII 2240 (ONCA), 121 C.C.C. (3d) 123 at para. 22. 311 R. v. Bernardo (1998), 1997 CanLII 2240 (ONCA), 121 C.C.C. (3d) 123 at para. 30. 312 R. v. Jaycox, 2012 BCCA 105 at para. 7. 119
6.4 Recommendations for mitigating delays
Applications for state-funded counsel are long processes, contributing to delays in what may already be a lengthy appeal process. The following practical recommendations to the current NSCA protocol may serve to reduce such delays.
Prince Edward Island approach
The Prince Edward Island Court of Appeal “Protocol for motion for fresh evidence on appeal involving an allegation of ineffective or incompetent trial counsel” explicitly contemplates the appointment of state-funded counsel. The protocol states:
The Deputy Registrar will notify the Chief Justice, who will consider providing directions or appointing a judge to provide directions regarding the appellant bringing forth a motion for fresh evidence. Directions could be preceded by an inquiry about whether the Court should assign legal assistance for the appellant pursuant to Criminal Code s. 684.313
Appellants are required to exhaust all avenues offered by PEI Legal Aid,314 consistent with the relevant jurisprudence, but this inquiry into the appropriateness of assigning state-funded counsel occurs early in the process, upon receipt of the
Notice of Appeal. The effect of this early inquiry is not evident from the PECA protocol or PECA case law, but may function to streamline the section 684 application process following the denial of legal aid services. PEI is the only
313 “Practice Directions: Prince Edward Island Court of Appeal” at para 6(e). 314 R. v. Dean Carl Chappell, 2012 PECA 18; Buckingham v. R., 2004 PESCAD 21. 120 jurisdiction to contemplate section 684 in its protocol for addressing appeals based on ineffective assistance of trial counsel.
Adopting an approach in line with the PECA’s at the NSCA, wherein the appropriateness of appointing state-funded counsel per section 684 is considered when an allegation of ineffective assistance of trial counsel is made by a prisoner appellant in his or her Notice of Appeal, may reduce delays associated with a section
684 application following the denial of Legal Aid services.315
Waiver improvements
In Nova Scotia, waiver can delay NSLA’s merits assessment, sometimes significantly. The NSLA suggested the NSCA take a more proactive role in finding implied waiver has been given, or that the NSCA otherwise instate a more formalized process for partial waiver to ensure waiver occurs more efficiently, thereby avoiding breakdowns in NSLA-client relationships due to concerns over full waiver of privilege. The NSCA’s increased role would be beneficial in enabling the
NSLA to begin its merits assessment sooner, which would, in turn, be helpful in moving the timeline of the section 684 application forward.
315 Concerns regarding an early an early assessment of the appropriateness of appointing assistance were raised by Emma Halpern on behalf of the Elizabeth Fry Society, discussed at p. 143 of this report. 121
7. CHALLENGES FOR SELF-REPRESENTED APPELLANTS
7.1 Liberty Interest
For prisoner appellants alleging ineffective assistance, it is important that the process preceding the Court of Appeal merits hearing (the filing of their Notice of Appeal or amended Notice of Appeal, the process of waiver, the NSLA application and, possibly, subsequent denial, etc.) be conducted as efficiently as possible, because of the significant liberty interests at stake for a prisoner appealing their conviction. The broad principles articulated by the SCC in R. v. Jordan, 2016 SCC 27 necessitate a streamlined timeline, wherever possible.
7.2 Trust in the legal system
There are also challenges associated with the prisoner appellants’ trust in the justice system. NSLA stated: “Appellants can be distrustful of legal institutions including
316 NSLA and [have] a sense that lawyers and the justice system are in it together.”
NSLA explained that appellate work is uniquely challenging as “there is little to no chance to develop a solicitor/client rapport.”317 Phone conversations with appellants are the often the only possible way for NSLA to communicate with their clients in
316 C. Moore, personal communication (written), August 8, 2017. 317 C. Moore, personal communication (written), August 8, 2017. 122 prison, and this style of communication poses challenges “for outlining advice or promoting a particular appellate strategy.”318
NSLA identified lack of trust as the “number one concern in developing a public funded legal aid appeal retainer with a prisoner.”319 NSLA notes: “While there is value of reviewing a transcript for grounds, ahead of any conversations with the appellant, as it provides the lawyer a ‘clean’ review of the materials conducted, it does not help with any suspicions/distrust the appellant has of the system or the lawyers.” 320 Lack of trust was also identified by NSLA as a key challenge in dealing with prisoners with mental illnesses.
7.3 Transfers
Moreover, the institutional barrier of moving or transfer of prisoners is a significant challenge for prisoner appellants. NSLA notes that face-to-face communication (or
Skype)321 is always preferable to phone communication or communication by writing, since it allows counsel to read a prisoner’s body language to see if they are agitated and confirm whether they understand what they are being told. Prisoners are often transferred significant distances—for instance, from Burnside to
318 C. Moore, personal communication (written), August 8, 2017. 319 C. Moore, personal communication (written), August 8, 2017. 320 C. Moore, personal communication (written), August 8, 2017.
321 NSLA notes that Skype capabilities for communicating with counsel from prison is supposed to be in place at all institutions in NS, but it is not yet functional at any of the prisons. 123
Yarmouth. This creates challenges for counsel to communicate with clients. For example, it is challenging for trust to be built or maintained between NSLA counsel and prisoner clients when discussing the merits of an appeal. NSLA explained that if a prisoner has a set idea of what their appeal should be based on in mind, it is hard to describe to them over the phone that they should focus on only certain grounds.
In addition, it is costly for NSLA to transport counsel to Yarmouth. On occasion,
NSLA has sent counsel to Yarmouth or elsewhere in the province only to find upon arriving that the prison cannot accept visitors at that time. This has been a significant institutional barrier to client access, which can lead to the breakdown of the solicitor- client relationship. 322
7.4 Access to resources for appeal in prison
Prisoner appellants who are self-represented for whatever reason, are required to put together their appeal in the prison context, with limited resources, limited access to legal advice, and no access to relevant case law to determine how a miscarriage of justice resulting from ineffective counsel may be established. None of the provincial or federal institutions in Atlantic Canada canvassed for the purposes of this report offer Internet access to inmates. As a result, inmates are not able to readily access resources such as CanLII, the Justice Laws site for federal legislation, the Office of
322 C. Moore, personal communication (verbal), August 8, 2017. 124
Legislative Counsel website for provincial legislation, or websites such as representingyourselfcanada.com, nsfamilylaw.ca or legalinfo.org.323 No access to research materials is truly an access to justice problem. Burton explains:
The link between access to information and access to justice is not often discussed, but it is implicit in our legal process. Document production, questioning, and Crown disclosure are all premised on the notion that one needs access to relevant information in order to present one’s case. This idea should also extend to legal research. Without access to precedents, case law and procedural texts, the ability to adequately argue a case is significantly impaired.324
Although dated, a 2002 federal study of legal services provided to inmates in Canada reported:
Key informants suggested that the unmet needs of federal inmates could most effectively be addressed through increased funding and human resources, and secondarily by ensuring that inmates have access to ‘self-help’ legal education materials. [emphasis added] 325
The study identified a “strong need expressed by almost all respondents” for information about inmates’ legal rights, noting: “This was a theme that pervaded almost all questions asked in these interviews.” 326
323 D. Copeman, personal communication (written), August 2017. 324 Sarah Burton, “Life, Liberty, and the Right to CanLII: Legal Research Behind Bars”, Case Comment on R. v. Biever, 2015 ABQB 301, online:
Prisoner access to legal information was considered by the Alberta Court of
Queen’s Bench (ABQB) in its 2015 decision R. v. Biever,327 in which the prisoner accused, who was self-represented, brought an application seeking “full access to legal materials, processes and any case law the defendants may require to make full answer and defence.”328 Mr. Biever sought access to the Internet “so that he could access relevant case law through CanLII, Quicklaw/Lexis-Nexis, and Westlaw, legal information sites, government sites, to conduct general searches using Google and
Wikipedia, as well as to seek counsel and to communicate with counsel.”329 Mr.
Biever contended that his section 7 Charter right to make full answer and defence was denied due to the limited legal research materials available to him.330 His argument was presented by an amicus, and focused on three points:
1. He had the right to represent himself;
2. His liberty was significantly affected, as he had been denied bail; and
3. “the conditions of his detention [were] such that he [did] not have reasonable
access to legal information necessary to defend himself as a self-represented
litigant.”331
327 R v Biever, 2015 ABQB 301 at para. 3. 328 R v Biever, 2015 ABQB 301 at para. 1. 329 R v Biever, 2015 ABQB 301 at para. 1. 330 R v Biever, 2015 ABQB 301 at para. 9. 331 R v Biever, 2015 ABQB 301 at para. 26. 126
In response to Mr. Biever’s application, Crown counsel made arguments related to safety, logistical difficulties, and the financial costs associated with providing the requested access to research resources.332
The ABQB ruled in Mr. Biever’s favour. Based on the conditions in the correctional facility, Justice Graesser was “satisfied that Mr. Biever [would] likely be unable to make full answer and defence to the charges if he is not provided with greater access to legal information” than what was offered at the remand centre where he was held at the time.333 Justice Graesser stated:
At a minimum, Mr. Biever should have timely and reasonable access to all Canadian criminal law case authority. […] Supreme Court of Canada decisions come out weekly, and Alberta Court of Appeal decisions come out daily. Their decisions are a binding authority in Alberta and timely access to these decisions is essential to anyone attempting to anyone presenting arguments in a criminal matter, whether it be at trial or on pre-trial applications. 334
Justice Graesser did not make specific directions for what materials were to be provided, but stated that he was “hard pressed to see” how “adequate access can be provided without some Internet access.”335 He identified the CanLII website a key resource.336 In addition, Justice Graesser held that “[t]here is no reason why an inmate should expect free printing, but there is also no reason that I can think of that
332 R v Biever, 2015 ABQB 301 at para. 35. 333 R v Biever, 2015 ABQB 301 at para. 119. 334 R v Biever, 2015 ABQB 301 at para. 87. 335 R v Biever, 2015 ABQB 301 at para. 92. 336 R v Biever, 2015 ABQB 301 at para. 35. 127 should prevent an inmate from being able to print and keep legal materials, or to have to rely on family, friends or an amicus to make copies of requested materials and deliver or post them to the inmate at the [institution].”337 Burton notes that the decision “signalled that Justice Graesser was unpersuaded by the Crown’s arguments about practical constraints.”338
Regarding technology and legal research, Burton commented: “Given that no one in 2015 would head to trial relying solely on research collected without at least checking online legal resources, it simply does not follow that an accused can adequately defend him or herself without it.”339 In addition, she contends that arguments related to risks associated with Internet access are weak, given the possibility of restrictions and monitoring of online access. 340,341
337 R v Biever, 2015 ABQB 301 at para. 115. 338 Sarah Burton, “Life, Liberty, and the Right to CanLII: Legal Research Behind Bars”, Case Comment on R. v. Biever, 2015 ABQB 301, online:
341 E.S. also raised this concern, stating that while working in the library at Nova Institute for Women in Truro E.S repeatedly asked about the possibility of limited and monitored Internet access for inmates for the purposes of researching appeals or other legal proceedings and was told that the risks associated with allowing Internet access to inmates were too great.
128
With the above-discussed considerations in mind, I researched the resources available in correctional institutions in Nova Scotia and Atlantic Canada. Consistent with the problems raised in Mr. Biever’s application, no institutions in Atlantic
Canada provide access to case law for the purposes of research. NSLA prepared and provided the following table, which describes what legal resources are available to inmates correctional facilities in Atlantic Canada:
Institution Resources available342,343 Central Nova Scotia § A request to view disclosure can be made. Correctional Facility § There is a computer room where disclosure can be viewed. § There is no ability to print or use word processing. § No internet access. Southwest § A request to view disclosure on a laptop can be made and is Correctional Facility available for self-reps to prepare documents. § No internet access. Northeast § A laptop is available to review disclosure—word Correctional Facility processing can be done with the assistance of case management. § No internet access. Cape Breton § A request to view disclosure can be made to use the laptop. Correctional Facility § There is no word processing.
342 The above table was prepared and provided by NSLA. NSLA stated of the information:
Our internal Prisoner Law working group has begun a scan of the federal and provincial institutions to determine the availability and quality of materials available to prisoners as well as the quality of the hardware to view material on. Our initial review of the resources available within the institutions is as follows. We are trying to determine how old some of the hardware is. Our managing lawyer, Stephanie Hillison, is looking into options to find replacement computers.
343 NSLA refers to the availability of “disclosure.” I presume this refers to “Crown disclosure,” defined in Canadian Law Dictionary (New York: Barron’s, 2013) at 103 as follows: “In criminal law, the constitutional obligation on a Crown prosecutor to give to an accused person all relevant information relating to a prosecution.” 129
§ No internet access. Springhill Institution § A request to view disclosure can be made. § There is access to the computers in the library for word processing. § There are two printers available. § No internet access. Dorchester § There is a disclosure laptop available through the Penitentiary correspondence center and can be viewed in the program room. § Word processing can be done through library services and is available from 4pm to 10pm – 7 days a week. § There are four computers. § Paper is supplied to them by library services. § No internet access. Westmorland § There is a computer available to view disclosure through Institution the correspondence center. § Word processing can be done through library services and is available from 4pm to 10pm – 7 days a week. § Paper is supplied to them by library services. § No internet access. Renous—Atlantic § Two computers are available in the library but currently the Institution library is closed as they do not have a Librarian. § They have been providing inmates with a DVD player that they can take into their cell to view their disclosure. § Word processing can be done they said with the assistance of the Librarian. § No internet access. Nova Institution for § Computer access is available to view disclosure and can be Women used for word processing. § No internet access.
130
7.4.1 Access to Appeal Books
Under the Rules, prisoner appellants are entitled to receive a copy of their appeal book when the Crown files it. There is no requirement to apply for access.344
Although prisoner appellants “should of course have unrestricted access to all materials necessary to their appeal, subject only to institutional security issues,” the
NSCA has had issues with prisoner access to appeal books.345 Mr. Schermbrucker notes anecdotally that in some telechambers hearings, “prisoner appellants have not had proper access to their appeal books and other material, delaying the telechambers process undesirably.”346 In practice, access issues may arise for various reasons within prisons and prisoners may not have access to their original disclosure materials, even in situations where they were represented by counsel at trial.347 The
Provincial Crown notes: “At the request of the Court, seeking out or re-sending the original disclosure falls to appellate Crown counsel. While an understandable request, this adds a duplication of expense and time.”348
On occasion, appellants have filed complaints regarding access to materials.349 The Provincial Crown notes that Crown counsel and the Court have
344 M. Fortune-Stone, M. Scott and B. Fiske, personal communication (written), August 2017. 345 D. Schermbrucker, personal communication (written), August 2017. 346 D. Schermbrucker, personal communication (written), August 2017. 347 M. Fortune-Stone, M. Scott and B. Fiske, personal communication (written), August 2017. 348 M. Fortune-Stone, M. Scott and B. Fiske, personal communication (written), August 2017. 349 M. Fortune-Stone, M. Scott and B. Fiske, personal communication (written), August 2017. 131 written letters to authorities in correctional facilities “seeking assurance that the appellant’s preparation needs are reasonably accommodated.”350
As for paper copies of the trial record provided to the appellant, security concerns caused by staples or other types of metal binding, concerns regarding inclusion of the names of other inmates, or concerns regarding fire hazards in situations where prisoners have large amounts of materials, or other behavioral issues may cause the institution to withhold access to paper materials from prisoners.
The Federal Crown stated:
The Court should ensure that all prisoner appellants have unrestricted access to the material they need for their appeal. This can only be done by direct contact from Court officials to institution officials. If the Crown is needed to assist, e.g. by providing “trial disclosure” material, this can easily be done.351
Because access to the trial file and other relevant materials can delay the appeal process for self-represented prisoner appellants, it is important for the NSCA to maintain open communication with officials in federal and provincial prisons about this issue, and to emphasize the importance of prisoner access to legal materials, barring security concerns.
Emma Halpern explained, on behalf of the Elizabeth Fry Society, that an unfortunate aspect of prison culture is the issue of staff discretion, in terms of
350 M. Fortune-Stone, M. Scott and B. Fiske, personal communication (written), August 2017. 351 D. Schermbrucker, personal communication (written), August 2017. 132 providing services and support to inmates. Discretion means some inmates will receive better access to resources than others. She stated that it is important not to assume that inmates are receiving equal treatment. She explained that discretionary calls to organizations such as Elizabeth Fry are not always accommodated, and identified the “incredible amount of discretion” prison staff has over the actions of inmates as a major challenge for the work of the Elizabeth Fry Society.352
7.4.2 Consultations with Corrections Nova Scotia
In consultation with Corrections Nova Scotia, I was directed to its “Offender
Handbook” for Adult Offender Correctional Facilities, which is provided to all prisoners, for information about what is available to prisoners concerning the appeal process and library access. The handbook is available online. 353 It contains very limited information about access to the library, telephone calls to lawyers, and where one may seek an application for Legal Aid. The handbook contains no information about appealing a sentence or conviction.354
352 E. Halpern, personal communication (verbal), August 2017. 353 Nova Scotia, Correctional Services, Offender Handbook: Adult Offender Correctional Facilities, (Nova Scotia: 2016), online: https://novascotia.ca/just/Corrections/_docs/Adult_Offender_Handbook_EN.pdf.
354 I used Canadian Association of Law Libraries listserv to inquire about legal information resources available to prisoners in Atlantic Canada, through which I contacted and subsequently interviewed E.S., a former staff member at Nova Institution for Women.
133
7.4.3 Consultation with former prison staff member
I interviewed E.S., a [recent staff member] at Nova Institution for Women from […], for information about the day-to-day process of legal research in prison libraries for self-represented appellants.355 I asked about the on-the-ground availability of resources for filing appeals, including legal information and relevant technology; whether there is research assistance provided by librarians; what kind of access prisoners have to the library in terms of hours; and, broadly, about the everyday challenges prisoner appellants experienced in marshalling their appeals.
In terms of resources, prisoners in Nova Institution at the time E.S. was working there had access to a set of CDs that could be used on computers in the library, which held legislation and procedural information for filing deadlines, both civil and criminal. Prisoners had no access whatsoever to case law. The library had some out-of-date textbooks. While employed at Nova Institute, E.S. reached out to the NS legal community for donations of more current resources to assist the prisoners. However, E.S. noted that space in the prison library for storage of print resources was very limited. The library had one out-of-date copy of the Criminal
Code on reserve, which could only be accessed while the library was open. Upon
355 E.S. requested to be de-identified for the electronic version of this report.
134 realizing the Criminal Code was years out of date, E.S. requested a new copy but was informed that it was not possible due to budget constraints.356
E.S. noted that the CDs were difficult to use. They often would not run properly on the computers available in the prison, or they did not work as expected.
The CDs were a set of six. Different CDs in the set held different information, but they were not clearly marked. Prisoners used the CDs on a “trial and error” basis to figure out which CD held the information they were seeking. For this reason, clearer packaging or labelling would be helpful if DVDs or CDs containing legal information are provided to institutions by the NSCA in the future, because the current system can cause inmates to become frustrated, which can be dangerous. In addition, the prison only had one set of the CDs to be shared, so inmates were required to take turns in the limited time available to the in the library. The CDs were difficult to navigate. The keyword searches on the CDs were very challenging for prisoners to use, as they often did not know exactly what they were looking for, or the appropriate legal terms (or even basic search terms). No training was provided to prisoners on how to use the CDs. E.S. suggested that USB format materials would be more easily usable, where prison technology can support it. E.S. noted that
356 E.S., personal communication (verbal), August 2017. 135 prisoners had access to Microsoft Word, and there was a printer available for inmate use provided they supplied their own paper.357
The staff members at Nova Institution for Women provide no research assistance to inmates whatsoever. E.S. would sometimes provide technical assistance when CDs were not working, but no research assistance of any kind was provided to inmates by library staff. Staff members did not help with filling out forms. E.S. noted that most of the support in terms of research and use of the library was peer support. E.S. often saw older prisoners helping new prisoners with the CDs, or assisting with forms. Some inmates work as library assistants (up to 5 at a time).
E.S. suggested that library assistants could be trained to assist with use of technology for the purposes of research, given this existing peer support system.358
The library is open for prisoners to access it during recreational time, which, during E.S.’s employment at Nova Institution, was in the late afternoon to mid- evening, and for 4 hours on Saturdays. The library was only staffed during this time period, and there was only ever one staff member working at a time. E.S. identified this schedule as the product of cost-related concerns.359
357 E.S., personal communication (verbal), August 2017. 358 E.S., personal communication (verbal), August 2017. 359 E.S., personal communication (verbal), August 2017. 136
E.S. found that whether or not women struggled with illiteracy issues, all could have benefited from documents and resources that “brought the language down” to a more accessible reading level.360
E.S. held that some Internet access, so that inmates can access sites such as
CanLII, would be an excellent resource for prisoners, and that many would benefit from the sense of autonomy developed through the process of becoming more informed about their conviction or appeal. In terms of challenges to the improvement of this system, E.S. identified cost as the key factor, and suggested a system of communication between institutions for the sharing of resources.
7.4.4 Consultation with the Legal Information Society of Nova Scotia (LISNS)
I interviewed Wendy Turner, Manager of Legal Information Services at LISNS, and
Zach Saunders, a staff member at LISNS, regarding their views on allegations of ineffective counsel in prisoner appeals.
LISNS receives very few calls from prisoners. However, if they do receive calls from prisoners, they are often related to quality of counsel, especially regarding pleas. LISNS currently has no materials on this topic. LISNS explained that upon
360 E.S., personal communication (verbal), August 2017. 137 receiving calls from prisoners, they can refer them using the LISNS lawyer referral service, but very few lawyers on their list have experience in prisoner appeals.361
LISNS identified the cooperation of institutions as a key barrier to providing self-represented prisoner appellants the resources they need to competently produce an appeal. LISNS stated that prisoners need assurance that calls or other correspondence to the Registrar for clarification on matters related to their appeal will not be monitored. In addition, they raised concerns over institutional barriers associated with accessing counsel, receiving correspondence from counsel, the
Court, and/or the Crown in a timely manner, and involuntary transfers.362
LISNS recommended that the NSCA protocol be re-worded in plainer language, so that self-represented appellants can understand and use the protocol with the same ease that appellate counsel would be able to use it. LISNS suggested that the protocol be made more clear about its role in the process of the appeal—for example, by explicitly explaining to appellants that compliance with the protocol is required (or, at least, strongly preferred) in order for claims to progress.363
Similarly, Emma Halpern, on behalf of the Elizabeth Fry Society, raised concerns that the language in the protocol was too complicated to explain to
361 W. Turner, personal communication (verbal), August 2017. 362 W. Turner, personal communication (verbal), August 2017. 363 W. Turner, personal communication (verbal), August 2017. 138 prisoners. She noted that materials provided to prisoners should be brief, conceptually simple (avoiding reference to abstract concepts such as “justice” and
“privilege” without clear accompanying explanation), and at a grade six reading level at the most. Both Ms. Turner and Ms. Halpern advised that any informational materials provided to inmates include information for following-up with questions.
Ms. Halpern proposed that information sheets could say: “If you are having trouble understanding this, take it to someone you trust.”364
LISNS also emphasized the need for better communication between trial counsel and their accused client, so that the client may better understand the reasoning behind trial counsel’s decisions, thereby staving off a claim of ineffective assistance in some cases. This suggestion is discussed in greater detail in the
Education and Training section of this report (section 4.2).
7.4.5 East Coast Prison Justice Society
The East Coast Prison Justice Society is a newly-formed counterpart to the West
Coast Prison Justice Society, working in Atlantic Canada. They are holding an AGM in October, primarily examining skill-building among the Bar related to prison law, including, inter alia, representing prisoners in disciplinary matters, and assisting with intra-prison appeals on aspects such as involuntary transfers and denial of
364 E. Halpern, personal communication (verbal), August 2017. 139 medical treatment.365 The Society is in very early stages, at present, and their work in the immediate future will not include prisoner appeals of convictions or sentences before the NSCA. However, the group may, in future, be a valuable resource for consulting with the community on issues associated with prisoner appeals and resources available to prisoner appellants. Emma Halpern of the Elizabeth Fry
Society and Zach Saunders of LISNS, who are both involved with the group, suggested that members of the East Coast Prison Justice Society might be willing and interested to assist with the development of a mobile legal information clinic.366,367
7.4.6 Consultation with Elizabeth Fry Society368
I consulted with Emma Halpern, the Equity & Access Officer at NSBS, and the
Atlantic region contact for the Elizabeth Fry Society. She indicated that the Elizabeth
Fry Society, as an organization, does no legal advocacy work for prisoners
365 Z. Saunders, personal communication (verbal), August 2017. 366 E. Halpern, personal communication (verbal), August 2017. 367 Z. Saunders, personal communication (verbal), August 2017. 368 I contacted the John Howard Society for their views on this process, and spoke with John Peach, Executive Director of the John Howard Society of Nova Scotia, who stated that they are not involved in any kind of advocacy or appellate process:
This is not an area that The John Howard Society of Nova Scotia has any involvement. We do not provide any legal work for our clients, as we do not have any legal staff as employees or volunteers. We are also not in a position to provide financial support to our clientele in need of legal support/representation. What we do is direct/connect our clientele with legal resources/professionals in the community (ex: legal aid, Legal Information Society). (J. Peach, personal communication (written), August 2, 2017.)
140 whatsoever. They provide library resources in the form of book clubs, but no legal information. Ms. Halpern herself conducts some legal advocacy work and referrals as an ancillary aspect of her work with Elizabeth Fry. She provided the following comments on behalf of the Elizabeth Fry Society, and based on her own experiences working in with prisoners.369
Ms. Halpern identified awareness of relevant information, protocols and resources on the part of both prisoner appellants and their advocates370 as the major challenge for the work of Elizabeth Fry in prisoner appeals. She is concerned that all those involved do not know where to access resources or who to call if they need assistance with an appeal. No one at Elizabeth Fry is able to provide counsel, and it is unclear where someone can go to get information on how to seek assistance following denial of legal aid. Ms. Halpern indicated that a court-run education session for the Bar and advocacy groups such as Elizabeth Fry on these kinds of resources (including the NSCA Protocol) held annually would improve the process
369 E. Halpern, personal communication (verbal), August 2017.
370 When referring to “advocates,” Ms. Halpern is speaking about volunteers assisting appellants in a non-legal capacity. Ms. Halpern uses the term “advocate” to describe Elizabeth Fry volunteers, as well as community members working to assist prisoners with a multitude of challenges associated with incarceration. This definition of “advocate” applies throughout this section (7.4.6.). 141 by building awareness and knowledge on the part of both legal and non-legal advocates working with prisoners.371
In addition, Ms. Halpern raised concerns about “triage and navigation.” 372 She is concerned specifically about times during which Legal Aid is not yet involved or has not yet made a decision with respect to representation, and an inmate is self- represented in the interim. She explained that situations where self-represented appellants are themselves required to apply to extend time to file a Notice of Appeal are particularly challenging, especially where no legal advice has been given and the risk that the case may not be able to proceed is real. She stated, therefore, that support in the form of legal information is essential at the earliest possible stages of the appeal process.
Ms. Halpern raised concerns that even interim periods of self-representation can be traumatizing for appellants with cognitive impairments, learning disabilities, or mental illnesses. Ms. Halpern believes that the Court should consider whether assistance from a non-legally trained, volunteer advocate at the earliest possible stage would benefit a self-represented appellant when the appellant has a learning disability or a mental illness, to reduce or avoid trauma experienced by a self- represented appellant as a result of trying to navigate the process alone. An approach
371 E. Halpern, personal communication (verbal), August 2017. 372 E. Halpern, personal communication (verbal), August 2017. 142 of this nature may be consistent with the PECA protocol, which anticipates and considers potential need for the appointment of state-funded counsel per section 684 at the beginning of the appeal process. She noted, furthermore, that those with diminished capacity may in fact be more susceptible to poor representation by counsel, because they are less likely and able to make decisions on their own and analyze what they are being told by their counsel.373 As a result, the NSCA should be particularly aware of the circumstances of vulnerable prisoner appellants.
Ms. Halpern emphasized that in putting together any approach involving prisoner appeallants, the Court should consider the differences in the needs and situations of male and female inmates. She noted that women have less family and community support while incarcerated than men do, and that all players in the appeals process must keep this fact in mind when considering access to legal resources and information. The NSCA cannot expect that legal informational materials will be delivered or mailed to women inmates by family members.
Ms. Halpern raised concerns regarding ineffective counsel appeals specifically related to pleas.374 Similarly, LISNS noted that most calls pertaining to ineffective counsel that they receive have to do with allegedly uninformed guilty
373 E. Halpern, personal communication (verbal), August 2017. 374 E. Halpern, personal communication (verbal), August 2017. 143 pleas.375 With this in mind, a plea-specific protocol [..] may benefit the work of the
NSCA. In addition, the Court may want to undertake initiatives to educate trial counsel further on the proper way to communicate with their clients regarding pleas.
Ms. Halpern described concerns regarding self-represented appellants with diminished mental capacity who are unable to find counsel, and explained that help from advocates from community organizations such as Elizabeth Fry can be very beneficial in guiding appellants through the process and avoiding the risk of psychological harm associated with going through an appeal alone. However, she described a lack of information on the part of advocates about the NSCA process for appeals involving allegations of ineffective assistance, and, indeed, prisoner appeals broadly. More information would help to fill those gaps, and to support the advocacy work of Elizabeth Fry. 376
Ms. Halpern suggested that receiving minutes of telechambers would be helpful in assisting Elizabeth Fry’s advocates, and, in some situations, it may be helpful to have advocates sit in on telechambers hearings. In situations where the prisoner appellant has cognitive difficulties, a volunteer advocate could assist in the absence of counsel. Furthermore, the process could be improved if the Court was aware of an appellant’s need for the assistance of an advocate early in the process,
375 W. Turner, personal communication (verbal), August 2017. 376 E. Halpern, personal communication (verbal), August 2017. 144 and was willing to work with groups such as Elizabeth Fry, Coverdale Courtwork
Society,377 or even individuals such as prison primary workers trusted by the inmate, in order to involve advocates in the process to support the prisoner.
Finally, I spoke with Ms. Halpern about the possibility of a restorative approach, whereby issues within the solicitor-client relationship could be addressed outside of the adversarial format of the courts (thereby reducing use of court resources, and reducing continued trauma on the part of prisoner appellants upset by their experiences with the adversarial justice system).
She explained that ideally, an early option for a case conference at the appeal level would be helpful to improve the prisoner appellant’s understanding of the process, and improve the Court and counsel’s understanding of the appellant’s concerns. Ms. Halpern suggested that it would be beneficial if a non-adversarial conference option existed to help prisoner appellants understand the appeal process from the outset, and provide them a setting to ask questions in a “without prejudice” way. Ms. Halpern notes that an initiative of this kind could potentially work over the phone, but a phone line would have to be a 1-800 number and it would have to be free.378
377 See: http://www.coverdale.ca/. 378 E. Halpern, personal communication (verbal), August 2017. 145
However, this suggestion raises challenges on the part of the Court— including whether this constitutes implied waiver, whether waiver is valid if it is made “without prejudice,” and whether a judge should be present or involved in this restorative process at all. A restorative approach to addressing prisoners’ concerns with their trial counsel would pose clear advantages for the appellant and would reduce use of Court resources, but the potential role of the Court in such an approach must be more thoroughly examined.
146
8. ADDITIONAL NOTES
8.1 Child Protection
Although most jurisprudence regarding ineffective assistance originated from the criminal context, ineffective assistance as a ground of appeal has limited application outside of criminal law, notably in the immigration context, discussed above, and in the child protection context.379 As outlined by Bourgeois J.A. in C.C. v. Nova Scotia
(Community Services), 2015 NSCA 67:
Child protection matters are the rare type of civil matter where the ineffective assistance of legal counsel can be advanced as a ground of appeal (M.W. v. Nova Scotia (Community Services), 2014 NSCA 103; M.O. v. Nova Scotia (Community Services), 2015 NSCA 26. The law is well settled in relation to
379 While not explored in this report, ineffective counsel has also been recognized as a ground of appeal in limited applications in the civil and administrative contexts, primarily in situations where there is vulnerability on the part of the appellant. See: Kedmi v. Korem, 2012 NSCA 124 at para. 8. Its applicability in the civil context is narrow, as described in D.W. v. White, [2004] O.J. No. 3441 at para. 55, 133 A.C.W.S. (3d) 217 (Ont. C.A.): I would not be prepared to close the door to the viability of ineffective assistance of counsel as a ground or a new trial in a civil action. But […] I would limit the availability of that ground of appeal to the rarest of cases, such as (and these are by way of example only) cases involving some overriding public interest or cases engaging the interests of vulnerable persons like children or persons under mental disability or cases in which one party to the litigation is somehow complicit in the failure of counsel opposite to attain a reasonable standard of representation.
See also: Gilgorevic v. McMaster, 2012 ONCA 115, in which the ONCA allowed the appeal, applying the test from G.D.B. and using the ONCA practice directive on allegations of ineffective assistance.
See also: OnPoint Legal Research Law Group, “Mental Health Law; Consent and Capacity; Ineffective Assistance of Legal Counsel”, Case comment on Gligorevic v. McMaster, 2012 ONCA 115 (CanLII Connects).
147
allegations of ineffective assistance of counsel in the criminal setting. I see no reason why the same principles should not apply in child protection matters.380
Stacey Gerrard of LIANS and Cherri Brown of the NSCA both indicated for the purposes of this report that child protection is an area in which allegations of ineffective assistance have been made more frequently in recent years.381 Practical changes to the structure or application of the NSCA protocol for ineffective assistance claims should, thus, be made with the child protection context in mind.
380 C.C. v. Nova Scotia (Minister of Community Services), 2015 NSCA 67, at para. 28. 381 S. Gerrard, personal communication (verbal), May 31, 2017; C. Brown, personal communication (verbal), June 2017. 148
CONCLUSIONS & RECOMMENDATIONS
1. Practical Recommendations
I. Robust telechambers process
Several stakeholders interviewed expressed an interest in a more robust telechambers process, in which waiver of solicitor-client privilege is raised as early as possible in the process, and “an order of a Justice that privilege has been waived
[is] made sooner rather than later.”382 Both LIANS and NSLA explained that waiver of solicitor-client privilege in prisoner appeals involving allegations of ineffective assistance is best facilitated when the telechambers judge takes on the proactive role of explaining the concept of waiver to the appellant and, where necessary, finds that waiver has been implied.
NSLA has found that proactive involvement from the chambers judge regarding waiver to be particularly important, because refusal to waive privilege can lead to the breakdown of the NSLA-client relationship. The Court may consider implementing a formal process whereby an appellant can partially waive privilege in service of his or her appeal, especially to address situations where full waiver cannot or will not happen.
382 D. Schermbrucker, personal communication (written), August 2017. 149
In addition, a robust telechambers process could include inviting trial counsel to participate in telechambers hearings. This way, all parties likely to make submissions to the Court during the appeal would be kept apprised in an efficient manner of the stage of the appeal, mitigating against the possibility of delay. To best ensure the appellant files the necessary materials for the appeal, stakeholders favoured the recording of minutes of telechambers, to be provided to the prisoner appellant by the NSCA.
Telechambers could also be used to enforce timelines for parties involved.
The issue of consistency in timelines was raised by several parties. NSLA suggested that deadlines be set at the beginning of the appeal for the preparation of materials, for the purposes of ensuring uniformity among appeals and to keep the appellant informed of the status of his or her appeal. However, this timeline may be employed flexibly as needed, as in Ontario following R. v. Graham. Standard timelines may also be achieved through the adoption of an appeal management form, as in Quebec and Ontario, for tracking the progress of appeals, as well as the status of issues such as waiver and notification of trial counsel.
An enhanced telechambers process may also be used for an early consideration of the potential of a section 684 application, as outlined in the PECA protocol. Early contemplation of whether the interests of justice would be met through the appointment of state-funded counsel may, moreover, function to make 150 the process of applying for state-funded counsel more efficient if legal aid assistance is denied.
II. Appointment of a Commissioner
Mr. Schermbrucker, on behalf of the Federal Crown, submitted that the NSCA may consider the assignment of a commissioner to “take evidence, making findings, and report in writing to the Court.”383 The engagement of such a commissioner may mitigate issues identified by the Federal Crown regarding cross-examination of the deponents of affidavit materials in appeals involving allegations of ineffective assistance. A commissioner responsible for taking the depositions of the prisoner appellant and trial counsel, and reporting his or her findings to the Court, may improve the process of evidence-gathering and fact-finding associated with ineffective assistance claims (especially assessments of credibility, with which they are often associated).
III. Informational Video
Both E.S. (former staff member at Nova Institution for Women) and Charlene Moore of the NSLA indicated that providing paper resources to prisoners to distribute information is not a practical option. The printing of paper resources is cost prohibitive, and there is very little space available to accommodate print resources
383 D. Schermbrucker, personal communication (written), August 2017. 151 in institutions. NSLA has downloaded much of the publicly-accessible legal information from their website onto discs, that inmates can view in prison libraries during their recreational time. These discs have been made available to each institution, but, as described by E.S. above, the ability of each inmate appellant to view such material is limited due to resources and availability of library time, in addition to issues with literacy and learning disabilities that may make reading challenging for prisoner appellants.
NSLA is interested in collaborating with NS Courts to determine what electronic information would be best to be distributed to inmates, and in what format.
Charlene Moore of Nova Scotia Legal Aid and Wendy Turner of LISNS both suggested that legal information concerning the appeals process be provided to inmates through a video series, produced by the Courts. The Family Justice Videos produced as a joint project between the Nova Scotia Department of Justice (Court
Services) and NSLA (and funded by Justice Canada) are a successful example of how this kind of initiative could be realized.384 The videos provide an overview of several family justice topics with narration, and enable viewers to pause and complete tasks as they go, which would be valuable feature for prisoner appellants.
The narration would mitigate literacy issues. In addition, Ms. Moore emphasizes the
384 Family Law Nova Scotia, “Family Justice Videos”, online:
An important consideration if this video project were to be developed by the
NSCA is to ensure that the institutions have the technological capabilities to support these videos, including speakers or headphones. Moreover, the videos would have to be easily updatable, so that the information provided to inmates through the video series does not quickly become outdated.
IV. Mobile Legal Information Clinic
The NS Courts offer free legal information clinics for self-represented litigants in
Halifax and Sydney, in which volunteers from the legal community assist users with completing court forms, identifying legal issues, assessing the strengths and weaknesses of a case, and providing basic legal advice. A mobile version of this initiative capable of visiting prisons may improve access to legal information in the prison context, improve the kinds of resources available to prisoner appellants, and better enable them to file necessary documents with the NSCA on time. I consulted 153 with NSLA about the possibility of a mobile legal information clinic. This is their response:
A mobile legal information clinic in prisons would likely benefit prisoners and would support the work NSLA provides in the way of prison law services which focuses on summary advice on how to deal with outstanding criminal matters; transfers; assistance with family law matters; disciplinary hearings; parole hearings and detention hearings; habeas corpus applications. It could reinforce the summary advice side of the legal support to prisoners.385
NSLA emphasized the importance of having such a resource early in the appeal process:
It would be very beneficial to have a mobile legal information clinic that was available to prisoners soon after their arrival particularly as it relates to the drafting and filing of appeals. If the prisoner is seeking to be heard in court, a mobile legal information clinic would not impact that unless it filled the gap where NSLA is not providing services as a result of a merit assessment. In this case, the clinic could provide ongoing support to prisoners who are proceeding with their appeal on their own.386
Early intervention was a main area of priority raised by the NSLA. If a clinic were assembled, early access to legal information would have the most impact on prisoners during the course of their appeal. Above all, the earlier the intervention the better, because of the liberty interests at stake for appeals of either sentence or conviction. Moreover, it is important to visit prisoners during the initial appeal period, because after being convicted, prisoners have 25 days to appeal and it is likely the prisoner will be transferred to a different institution after being
385 C. Moore, personal communication (written), August 2017. 386 C. Moore, personal communication (written), August 2017. 154 convicted.387 Where and when a prisoner is transferred varies on a case-by-case basis, depending on the sentence and other prison management-related factors.
Most Notices of Appeal are received from the Burnside prison, as most prisoners are held at Burnside before being transferred to where they will spend the bulk of their sentence. Thus, the interim period before an appellant is transferred often covers his or her appeal period. For this reason, if a mobile legal information clinic were assembled, it would reach the most male appellants if it visited Central
Nova Institution in Burnside, at least on a trial basis. In order to best provide services to women in the province, Emma Halpern identified Nova Institution for Women in
Truro as the best possible option to service the greatest number of women.
I spoke with a representative at Springhill Institution about the possibility of the prison accommodating such an initiative and she indicated that it would
“absolutely” be possible at Springhill, and that it could be organized through their programming department.
This kind of mobile legal information clinic would be ambitious, but LISNS notes that even a telephone service seeking to address the same kinds of issues would work, as an initial stage.388 A telephone service could be set up as a hotline that prisoners could call for assistance with their appeals, staffed by the same volunteers
387 Civil Procedure Rules of Nova Scotia, r. 63.05(1). 388 W. Turner, personal communication (verbal), August 2017. 155 as would ideally staff a mobile legal information clinic. The hotline would have to be a 1-8000 number and it would have to be free, for prisoners to be able to use it.389
However, LISNS and NSLA agree that it is absolutely most beneficial to inmate appellants for someone (whether counsel or a volunteer advocacy worker) to physically visit the institution to explain legal information to them.
Wendy Turner of LISNS explained that LISNS does not have enough lawyers on their lawyer referral service list experienced in conducting prisoner appeals to be able to handle such requests, and suggested that the NSBS facilitate training on prisoner appeals to help to address these issues.390 LISNS explained that in addition to the specialized criminal appeal knowledge required, working with prisoners is uniquely challenging (due to mental illness and addiction, as well as learning difficulties) and experienced counsel is necessary to appropriately assist prisoner appellants.
In terms of staffing a mobile legal information clinic with volunteers, it may be beneficial to look to the Queen’s Prison Law Clinic
(http://queenslawclinics.ca/prison/) at Queen’s University as an example of the way
389 E. Halpern, personal communication (verbal), August 2017l 390 W. Turner, personal communication (verbal), August 2017. 156 this program could be carried out with student volunteers from Dalhousie
University’s Schulich School of Law.
On behalf of Elizabeth Fry, Ms. Halpern indicated that a mobile legal information clinic would be very beneficial, especially for dealing with completing forms. However, she notes that “not all prisoners are equal” and that there would be no approach that could best suit all inmates—for some inmates, issues with mental illness, behavioural problems, or learning disabilities would mean that the clinic is not enough to support their needs.391 She stated that training from Caroline McInnes for volunteers of the mobile legal information clinic regarding the best way to fill out forms (as has been provided previously for the pro bono legal information clinic) would be essential for this initiative.392
Prisoners are placed in secured units at the beginning of their sentences for certain convictions, and while in the secured unit there is zero access to the library and limited access to programming afforded to the general population.393 This poses challenges for the appeals process, and is a significant barrier in terms of the provision of legal information. Therefore, if the NSCA initiated the mobile legal information clinic, care would need to be taken to ensure that it is accessible to
391 E. Halpern, personal communication (verbal), August 2017l 392 E. Halpern, personal communication (verbal), August 2017l 393 E. Halpern, personal communication (verbal), August 2017l 157 prisoners in secured units. Materials must be brought or sent specifically for appellants in those maximum-security units. Moreover, as Wendy Turner of LISNS suggested, a telephone number for the mobile clinic staff should be provided for follow-up questions.
V. Court-Produced Appeal Manual
Ms. Moore indicated that if a mobile legal information clinic were instated, assistance with filling out forms and other documents would be most beneficial in this context. In terms of putting together an appeal, a handbook that could be used by the volunteer lawyer together with the appellant may be beneficial in streamlining and focusing the issues and process. NS Family Law has a handbook for self- represented individuals in family matters: “Going to Court: Self-Represented Parties in Family Law Matters.”394 It includes worksheets and checklists of required materials to be filed with the Court. A similar initiative may be helpful in the criminal appeals context, particularly with the assistance of a volunteer lawyer, in terms of ensuring that all relevant materials are appropriately filed, and to focus the issues raised in the Notice of Appeal. The NSCA currently has a criminal appeal
“How-to” handbook, available online (Appendix CC), which explains the possibility
394 Nova Scotia, Family Law Nova Scotia, Going to Court: Self-Represented Parties in Family Law Matters, online:
Wendy Turner of LISNS suggested putting together a manual including all materials the Registrar sends to prisoners, all relevant forms, and the NSCA protocol in clear language, which could be used by volunteer lawyers in a clinic forum to assist appellants. LISNS emphasizes the importance of including a follow-up phone number for appellants to call, should questions arise after the volunteer lawyer leaves. Ms. Turner suggested providing the manual to LISNS for use when they get calls regarding such appeals, as well as to NSLA and anyone involved, so that all parties are on the same page with respect to what is expected or needed for the appeal 159 process on the appellant’s end. LISNS noted that prisoners are difficult to work with, and that mental health and addiction training for volunteers would be required.395
Emma Halpern of Elizabeth Fry raised a similar suggestion, and specifically noted that pictures, cartoons, and simple text like those used in the resources for children produced by NS Family Law would be well-suited for prisoners to use on their own, or together with volunteer advocates. Ms. Halpern suggested that a how-to manual of this nature be sent to an inmate upon filing his or her Notice of Appeal. Ms.
Halpern specifically noted that it should be mailed directly to prisoners, if possible, to circumvent the issue of access for prisoners in secured units, and that a workbook would be a great resource that volunteers from groups such as Elizabeth Fry could review with inmates. 396
395 Z. Saunders, personal communication (verbal), August 2017. 396 E. Halpern, personal communication (verbal), August 2017l 160
2. Recommendations at a Glance
In summary, this report makes the following recommendations with respect to prisoner appeals involving allegations of ineffective trial counsel:
1. NSCA informational materials, including the NSCA protocol for addressing
appeals involving allegations of ineffective assistance, should be presented in
plain language.
2. The telechambers process should be enhanced, whereby:
a. The issue of waiver of solicitor-client privilege is raised as early as
possible, and the presiding Justice in telechambers is prepared to make
an order that privilege has been impliedly waived, where necessary.
b. Telechambers sessions are memorialized in writing, and a copy of the
“minutes” is provided to prisoner appellants;
c. Trial counsel is invited to participate in telechambers, where
appropriate; and
d. In the absence of appellate counsel, the NSCA considers inviting a
volunteer (non-legal) advocate to assist appellants, particularly those
with mental illnesses or learning disabilities.
3. The NSCA may consider engaging a commissioner to take evidence, make
findings of fact, and report in writing to the panel of the Court hearing the
appeal. 161
4. The NSCA should make a preliminary assessment of the unique needs of the
prisoner appellant (concerning factors such as mental illness, learning
disabilities, addiction) at the beginning of the appeal, to simplify a potential
section 684 application later in the process (consistent with the approach
followed by the PECA), and assess whether a volunteer advocate should be
appointed to assist the appellant.
5. Appeal timelines should be enforced by the NSCA, so that appeals are
standardized to better facilitate tracking, and to mitigate danger to the liberty
interest. Such timelines should be flexibly applied, consistent with the practice
of the ONCA per R. v. Graham.
6. The NSCA should facilitate prisoner access to legal information, through
initiatives such as:
a. An informational video series;
b. A mobile legal information clinic, capable of visiting prisoners in
correctional facilities (especially Central Nova Correctional Facility in
Burnside and Nova Institution for Women in Truro);
c. A court-produced appeal manual, including plain-language
explanations and visual illustrations of how an appeal is filed.
162
Conclusion
Appeals involving allegations of ineffective trial counsel pose difficult issues for appellate courts, particularly when the appellant is self-represented. Most Canadian appellate courts have protocols in place for addressing such allegations, and the
NSCA protocol is largely consistent with many jurisdictions of a comparable size.
However, none of the protocols thoroughly address the issues unique to appeals in which the appellant is self-represented. In order to best facilitate access to justice, the NSCA should assess the unique challenges facing self-represented appellants in considering practical changes to its protocol, particularly regarding efficient use of telechambers, enabling prisoners to access legal information necessary for their appeal, and, throughout, ensuring that the appeal functions as efficiently as possible to avoid delays damaging to the liberty interests of the appellant.
163
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R. v. Aulakh, 2012 BCCA 340. R. v. B.P., 2010 ABQB 204. R. v. Bernardo (1998), 1997 CanLII 2240 (ONCA), 121 C.C.C. (3d) 123 (Ont. C.A.). R. v. Biever, 2015 ABQB 301. R. v. Bradley, 2007 PESCAD 23. R. v. C.D.C., 2001 NSCA 175. R. v. C. (L.S.), 2003 ABCA 105. R. v. Campbell, [1999] 1 SCR 565. R. v. Chappell, 2012 PECA 10. R. v. Chukuwu, 2016 SKCA 6. R. v. Cody, 2017 SCC 31. R. v. Dean Carl Chappell, 2012 PECA 18. R. v. Dreaver, 2014 SKCA 133. R. v. Duhamel, 2006 QCCA 1081. R. v. Dunbar, Pollard, Leiding and Kravit, 2003 BCCA 667. R. v. E.F.H., 1997 CanLII 418 (ONCA). R. v. Fraser, 2010 NSCA 106. R. v. G.D.B., 2000 SCC 22. R. v. G.K.N., 2016 NSCA 29. R. v. G.M., 2013 SCC 24. R. v. Garofoli, [1988] O.J. No. 365, 27 O.A.C. 1 (Ont. C.A.). R. v. Gaudette, 2006 QCCA 1004. R. v. Gogan, 2011 NSCA 105. R. v. Graham, 2014 ONCA 566. R. v. Hamzehali, 2017 BCCA 290. 165
R. v. Henneberry, 2017 NSCA 71. R. v. Hobbs, 2009 NSCA 90. R. v. Jaycox, 2012 BCCA 105. R. v. Jim, 2003 BCCA 411. R. v. Joanisse, [1995] O.J. No. 2883, 102 C.C.C. (3d) 35 (Ont CA). R. v. Jordan, 2016 SCC 27. Kedmi v. Korem, 2012 NSCA 14 R. v. Kelsie, 2016 NSCA 72. R. v. Kim, 2011 SKCA 74. R. v. Marriott, 2013 NSCA 12. R. v. Meer, 2015 ABCA 141. R. v. Meer, 2016 SCC 5. R. v. Moore, 2002 SKCA 30. R. v. Munson, 2012 MBCA 111. R. v. Murphy, 2014 YKCA 7. R. v. Nevin, 2006 NSCA 72. R. v. Ross, 2012 NSCA 8. R. v. Ross, 2012 NSCA 56. R. v. Sarson, [1992] N.S.J. No. 395, 115 N.S.R. (2d) 445 (NSCA). R. v. Short, 2012 SKCA 85. R. v. Smith, 2001 NFCA 38. R. v. Turner, 2008 QCCA 1904. R. v. W.E.B., 2014 SCC 2. R. v. Ward, 201 ONCA 568. R. v. West, 2009 NSCA 63. 166
R. v. Wolkins, 2005 NSCA. R. v. Worm, 2014 SKCA 94. R. v. Yellowhead, 2015 BCCA 389. Rezko v. Canada (Citizenship and Immigration), 2015 FC 6 (CanLII). Robichaud v. R., 2014 NBCA 1. Shabuddin v. Canada (Citizenship and Immigration), 2017 FC 428. Smith v. R., 2012 NBCA 99. Tanasichuk v. R., 2007 NBCA 76.
INTERNATIONAL JURISPRUDENCE R. v. Hall, [2015] NZCA 403. Strickland v Washington, 466 U.S. 668 (USSC 1984).
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Devlin, Richard & David Layton. “Culturally Incompetent Counsel and the Trial Level Judge: A Legal and Ethical Analysis” (2014) 60 Crim LQ 361. Ewaschuk, E.G. “Criminal Pleadings & Practice in Canada”, 2nd ed, vol 3 (Thomson Reuters, 2017) (loose-leaf). Gelowitz, Mark. “R. v. Graham: Ontario Court of Appeal Explains Protocol for Appeal Alleging Ineffective Assistance of Counsel”, Case Comment, (2014).
Gerrard, Stacey. “RISK PRACTICE MANAGEMENT TIP: Claims of ineffective trial counsel—Effective communication” Nova Scotia Barrister’s Society.
Gumpert, James A. “Ineffective Assistance of Counsel: Legal Issues” (Paper delivered at the C.L.E. Conference). Hubbard, Robert W. et al, The Law of Privilege in Canada (Toronto: Thomson Reuters, 2016) (loose-leaf updated July 2017).
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Perry, Jill. “Call to Action #27: The cultural competence imperative” The Society Record (2016). Rock, Nora. “Criminal lawyers: Clear communication your best defence against allegations of ineffective assistance” AvoidAClaim blog, 2 April 2015.
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Woolley, Alice. “Lawyer, Not Intervenor”, Case Comment on R. v. B.P., 2010 ABQB 204, (2010) ABLawg. Young, Alan N. “Adversarial Justice and the Charter of Rights: Stunting the Growth of the ‘Living Tree’” Criminal Law Quarterly 1997.
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PROTOCOLS & PRACTICE DIRECTIVES British Columbia Court of Appeal, “FORM A: Form letter to impugned trial counsel.” British Columbia Court of Appeal, “Ineffective Assistance of Trial Counsel (Criminal Practice Directive” (12 November 2013). Canada, Federal Court, “Procedural Protocol Re Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court” (7 March 2014). Court of Appeal for Ontario, “Schedule A: Appeal Management Form Re Allegations of Incompetence of Trial Counsel in Criminal Cases”.
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The Court of Appeal for Saskatchewan, […] 170
PARTIES CONSULTED Justice Duncan Beveridge Nova Scotia Court of Appeal Justice David Farrar Nova Scotia Court of Appeal Justice Peter Bryson Nova Scotia Court of Appeal Justice Cindy Bourgeois Nova Scotia Court of Appeal Melanie A. Baldwin Registrar, Court of Appeal for Saskatchewan [email protected] Cherri Brown Chambers Clerk, Nova Scotia Court of Appeal [email protected] Michael Collins Legal Research Officer, Newfoundland and Labrador Court of Appeal (709) 729-0066 Deborah Copeman Former Librarian, NS Barristers’ Society [email protected] Marian Fortune-Stone, Q.C. Nova Scotia Public Prosecution Service, Appeals Branch [email protected] Stacey Gerrard Counsel, Lawyers’ Insurance Association of Nova Scotia [email protected] Emma Halpern Atlantic Region Advocate, Elizabeth Fry Society Equity & Access Officer, Nova Scotia Barrister’s Society [email protected] 171
Bobbi Jo McDevitt Case Management Officer, Alberta Court of Appeal [email protected] Caroline McInnes Registrar, Nova Scotia Court of Appeal [email protected] Mark Mossey Executive Legal Officer, Nunavut Court of Appeal [email protected] Luke Merrimen President, Nova Scotia Criminal Lawyers Association [email protected] Charlene Moore Service Delivery Director, Nova Scotia Legal Aid [email protected] John Peach Executive Director, John Howard Society of Nova Scotia [email protected] Jerry Plante Supreme Court Manager, Court of Appeal for the Northwest Territories [email protected] Zach Saunders Legal Information Society of Nova Scotia David Schermbrucker Public Prosecution Service of Canada, Halifax [email protected] Wendy Turner Manager, Legal Information Services, Legal Information Society of Nova Scotia [email protected] Appendix : C rotocol
Protocol for Appeal Proceedings Involving Allegations of Ineffective Trial Counsel
Preamble
In criminal appeals from conviction, the appellant may raise grounds of appeal suggesting that their trial counsel was ineffective or otherwise contributed to a miscarriage of justice. In such cases, the appellant will often want to provide the court with information concerning instructions to and conduct of trial counsel. This information will typically come before the court by way of a motion for leave to file fresh evidence. Any response to such evidence will usually come from trial counsel. The response could consist of affidavit to be considered by the Court on the fresh evidence motion.
If the Appellant is represented by counsel it is expected that they will undertake an assessment of the merits of the allegations against trial counsel prior to raising these issues in the Notice of Appeal. In most cases such assessment will include giving trial counsel notice of the allegations and providing a reasonable opportunity to respond.
A useful discussion of the issues raised in appeals involving allegations of ineffective trial counsel can be found in the court’s decisions in R. v. West (2009 NSCA 63; 2009 NSCA 94) , R. v. Hobbs (2009 NSCA 90) and R. v. Fraser (2010 NSCA 106).
Protocol
1. All Notices of Appeal are reviewed by the Registrar. As part of this review, the Registrar will attempt to discern whether the grounds of appeal include allegations with respect to the conduct of trial counsel. If Crown counsel becomes aware that an Appellant is raising such issues they will notify the Registrar.
2. If the Registrar determines that the grounds of appeal include allegations with respect to the conduct of trial counsel, a letter enclosing a copy of the Notice of Appeal will be sent to that counsel for their information. This letter will be copied to the parties to the appeal. In addition the Registrar shall report the matter to the motions judge who, upon review of the file, may recommend to the Chief Justice that an appeal management Judge be appointed under Rule 90.45.
3. Trial counsel should be provided with copies of correspondence or documents filed with the court with respect to the motion for date and directions.
4. Trial counsel must advise the court at the time of the motion for date and directions with respect to their intended participation in the proceeding. In particular, they should advise the court with respect to whether they intend to make any motions or file affidavit evidence.
#476488.1 5. Should the response by trial counsel involve disclosure of information that is potentially subject to solicitor-client privilege the Court may be asked to provide direction as to whether the appellant’s allegations are sufficient to constitute a waiver of privilege.
6. In some circumstances, the nature of the allegations against trial counsel will result in that counsel making a motion to become an intervenor on the appeal.
#476488.1 Appendix C egistrar letter to trial counsel
The Law Courts Caroline McInnes 1815 Upper Water Street Registrar Halifax, Nova Scotia B3J 1S7
Phone: 902-424-8962 www.courts.ns.ca Fax : 902-424-0524 [email protected]
August 22, 2017
Raymond Kuszelewski c/o McCarthy Kuszelewski Law via fax: 902-431-4439
Dear Mr. Kuszelewski:
RE: CAC 461723 – Roderick Joseph Domoslai v. Her Majesty the Queen
A Notice of Appeal was filed on March 23, 2017, by the Appellant in this matter. I enclose a copy of the notice of Appeal for your information.
I am sending you the Notice of Appeal as the Appellant has raised, as a ground of appeal, ineffective counsel at trial. You were trial counsel.
Yours truly,
Caroline McInnes Registrar
Enclosure
cc: Adam Rodgers, via fax: 902-625-2801 Kenneth W.F. Fiske, Q.C., via fax: 902-424-4484 Appendix C egistrar letter to trial udge
Caroline McInnes The Law Courts 1815 Upper Water Street Registrar Halifax, Nova Scotia B3J 1S7
Phone: 902-424-8962 www.courts.ns.ca Fax : 902-424-0524 [email protected]
August 22, 2017
Judge MacRury Provincial Court Halifax 5250 Spring Garden Road Halifax, NS B3J 1E7
Dear Judge MacRury:
RE: CAC 460598 – Matthew Howard-Rideout v. Her Majesty the Queen
On February 21, 2017, the self-represented prisoner Appellant filed a Notice of Appeal with the Nova Scotia Court of Appeal from the conviction of October 14, 2016 and sentence of February 15, 2017.
Pursuant to Civil Procedure Rule 91.10(4), I as the Registrar of the Court of Appeal am required to send you a copy of the prisoner's Notice of Appeal and I enclose a copy herewith.
Yours truly,
Caroline McInnes Registrar
Enclosure Appendix C egistrar letter to lo er court
Caroline McInnes The Law Courts 1815 Upper Water Street Registrar Halifax, Nova Scotia B3J 1S7
Phone: 902-424-8962 www.courts.ns.ca Fax : 902-424-0524 [email protected]
August 22, 2017
Deirdre Smith Provincial Court Halifax 5250 Spring Garden Road Halifax, NS B3J 1E7
Dear Ms. Smith:
RE: CAC 460598 – Matthew Howard-Rideout v. Her Majesty the Queen
On February 21, 2017, a Notice of Appeal was filed in the Nova Scotia Court of Appeal relative to this matter. I enclose a copy.
Pursuant to Civil Procedure Rule 90.28(1), I as the Registrar am requesting the pleadings, documentary exhibits, and other papers in the proceeding being appealed be sent to me.
I also remind you of Civil Procedure Rule 90.28(3) which requires you upon receiving this request to comply with it as soon as practicable.
Yours truly,
Caroline McInnes Registrar
Enclosure Appendix C egistrar letter to Cro n
Caroline McInnes The Law Courts 1815 Upper Water Street Registrar Halifax, Nova Scotia B3J 1S7
Phone: 902-424-8962 www.courts.ns.ca Fax : 902-424-0524 [email protected]
August 22, 2017
Sarah Tamsett Legal Assistant, Agent supervision Unit Public Prosecution Service of Canada Atlantic Regional Office Suite 1400, 5251 Duke Street Halifax NS B3J 1P3
Dear Ms. Tamsett
RE: CAC 461980– Duncan Charles Todd Mullin v. Her Majesty the Queen
A Prisoners Notice of Appeal was received from the prisoner Appellant in this matter by the Nova Scotia Court of Appeal on March 27, 2017. I am writing at this time to remind you that as this is a Prisoners Appeal, it is the Crowns responsibility to make the necessary Chambers Motion to have the appeal set down for hearing.
The motion may be in person on Thursdays at 10:00 a.m. or by telephone at a pre- arranged time on Wednesdays. The telephone conference must be arranged through the Deputy Registrar, who can be reached at (902) 424-6937. You must also ensure that a stand-alone Notice of Motion is filed no less than four (4) days before the motion hearing date. There is no prescribed form for the Notice of Motion, however I have prepared one which is accessible on the courts= website at:
http://www.courts.ns.ca/appeals/documents/nsca_setting_down_motion_09_01_1.pdf
As you are aware, a Chambers motion to have the appeal set down cannot be heard until such time as the Certificate of Readiness on Form 91.13 is filed with the court. Please note that the certificate must also be filed no less than four (4) days before the motion hearing date (Rule 90.26(1)).
Civil Procedure Rule 91.12(2) requires the Motion for Directions to be heard no more than eighty (80) days after the day the Notice of Appeal is filed. If this is not done within that time, I as the Registrar, will make a motion pursuant to Civil Procedure Rule 90.43(4) on 2 five (5) days’ notice to have the appeal dismissed for non-compliance with the rules. By way of further assistance, your eighty (80) day period commenced running on March 27, 2017and will expire on July 24, 2017.
Should any questions arise from the above, please contact me at your earliest convenience.
Yours truly,
Caroline McInnes Registrar cc: Duncan Charles Todd Mullin, c/o Jim O’Neil, 201-16 Church Street, Amherst NS B4H 3A6 Appendix C egistrar letter to inmate appellant
The Law Courts Caroline McInnes 1815 Upper Water Street Registrar Halifax, Nova Scotia B3J 1S7
Phone: 902-424-8962 www.courts.ns.ca Fax : 902-424-0524 [email protected]
May 5, 2017
Matthew Howard-Rideout c/o CNSCF 90 Gloria McClusky Ave Dartmouth, NS B3B 2B9
Dear Mr. Howard-Rideout:
RE: CAC 460598 – Matthew Howard-Rideout v. Her Majesty the Queen
I am writing to you to confirm that your appeal from the conviction of October 14, 2017 and sentence of February 15, 2017, has been filed with the Nova Scotia Court of Appeal on February 21, 2017.
I encourage you to contact the Nova Scotia Legal Aid Commission to determine whether you qualify for legal representation on this appeal.
Once you have exhausted all your appeal remedies within the Nova Scotia Legal Aid Commission if you are still refused the services of a legal aid lawyer, you may make a motion to the Nova Scotia Court of Appeal, to request the appointment of legal counsel to represent you on this appeal pursuant to section 684 of the Criminal Code. This process will be discussed with the judge in your telephone conferences.
Yours truly,
Caroline McInnes Registrar
c.c. Kenneth Fiske, Q.C., Public Prosecution Service Charlene Moore, Nova Scotia Legal Aid Commission Appendix C egistrar letter to prisoner re: s information pac age
The Law Courts Caroline McInnes 1815 Upper Water Street Registrar Halifax, Nova Scotia B3J 1S7
Phone: 902-424-8962 www.courts.ns.ca Fax: 902-424-0524 [email protected]
April 25, 2016
Christopher J. Cockerill c/o Atlantic Institution 13175 Route 8 PO Box 102 Renous, NB E9E 2E1
Dear Mr. Cockerill:
RE: CAC 444466 – Christopher J. Cockerill v. Her Majesty the Queen
This letter follows your teleconference on April 20, 2016 with The Honourable Justice Scanlan of the Nova Scotia Court of Appeal, Marian Fortune-Stone, Q.C., Megan Longley, Q.C., and Stacey Gerrard.
I enclose a package of materials so that you could file a motion with the Court of Appeal for state assisted counsel in accordance with s. 684 of the Criminal Code. The court does not automatically appoint counsel for you. Rather the court needs a motion document and supporting affidavit from you. The court then conducts a hearing at which it considers a number of issues when deciding whether or not to appoint counsel. The affidavit that you file in support of your motion should address those issues which are:
1. The reasons for your motion. You will see that this is referred to on the middle of the first page of the attached guidelines. In this case, you will want to say what errors you feel the trial judge made. If you think your lawyer made errors or provided inappropriate advice to you, you should explain why you say that. Please understand however that if you make allegations against your lawyer, involving advice that you have received from your lawyer, you will be required to waive solicitor-client privilege and your lawyer will have an opportunity to respond to any allegations made against him, which may include what instructions you gave to your lawyer which would ordinarily be confidential.
In other words, you have to explain why you believe your appeal should succeed.
2. Details and documents (if you have any) regarding why you cannot afford a private lawyer and what efforts you have made to hire a private lawyer.
3. Details of your efforts to obtain a publicly funded lawyer through the Nova Scotia Legal Aid Commission. You should explain whether the Legal Aid Commission agreed to provide you with a lawyer and on what terms. If you dismissed your Legal Aid lawyer, you should say so.
4. Financial details of property you own or income you have that would show you cannot afford a lawyer.
5. Information regarding why you feel you cannot conduct the appeal on your own behalf, including a description of what your formal education is, whatever employment or training you’ve had, what your reading and communication skills are and your understanding of the convictions and sentence which are under appeal or which you intend to raise on appeal.
6. You should explain why you think your appeal is so complex that it requires a lawyer to argue the appeal on your behalf. This should address the grounds of appeal that you are raising or intend to raise and the complexity of the issues that need to be discussed on appeal.
Your affidavit should be sworn before a Commissioner of Oaths. A Commissioner of Oaths is a person whom you are authorized to appear in front of to swear to that what you have said in your affidavit is true. You should ask someone at the Institution about how to arrange to have your affidavit sworn before a Commissioner of Oaths.
Yours truly,
Caroline McInnes Registrar cc: Marian Fortune-Stone, Q.C., Provincial Public Prosecution Service, via fax: 424- 4484 Megan Longley Q.C., Nova Scotia Legal Aid Commission, 420-3471 Stacey Gerrard, LIANS, via fax: 421-1822 Appendix otice of otion included in C egistrar s information pac age CAC No. NOVA SCOTIA COURT OF APPEAL
BETWEEN:
Appellant
- and -
Her Majesty the Queen
Respondent
NOTICE OF MOTION
TAKE NOTICE that the Appellant will make a motion for the appointment of legal counsel pursuant to section 684 of the Criminal Code of Canada in Court of Appeal Chambers on Thursday, the ______day of ______, 20___ at the hour of 10:00 AM.
In support of the application attached is the supporting Affidavit of the Appellant.
Dated this ______day of ______, 20____.
______
(Print and sign your name)
This notice must be sent to: - Registrar, Nova Scotia Court of Appeal 1815 Upper Water Street, Halifax NS B3J 1S7 (FAX # 424-0524) - Edward Gores, Q.C., NS Department of Justice (FAX # 424-1730) - Kenneth Fiske, Q.C., Provincial Public Prosecution Service (FAX # 424-4484) - Ann Marie Simmons, Federal Public Prosecution Service (FAX # 426-7274) - Charlene Moore, Nova Scotia Legal Aid Commission (FAX # 420-3471) Appendix ffidavit included in C egistrar s CAC No. information pac age NOVA SCOTIA COURT OF APPEAL
BETWEEN:
Appellant
- and -
Her Majesty the Queen
Respondent
AFFIDAVIT
I, ______, of ______, Nova Scotia, hereby make oath and say as follows:
1. THAT I am the Appellant on this appeal and make this Affidavit in support of my motion for the appointment of legal counsel pursuant to section 684 of the Criminal Code of Canada.
2. THAT
3. THAT
include as many additional paragraphs as required.
SWORN TO at Halifax, in the Halifax ) Regional Municipality, Province of Nova ) Scotia, this day of _____, 20 ___ ) ) ) ) ) ______
Commissioner of Oaths Appellant Appendix lain language guide included in C egistrar s information pac age
NOVA SCOTIA COURT OF APPEAL Revised- February 2017
HOW TO MAKE A MOTION FOR STATE-APPOINTED COUNSEL
This guide provides general information only. It may not tell you all you need to know. It does not explain the law and should not be considered legal advice.
Attached to this guide are the following documents. You will need to fill them out as instructed below:
(1) Notice of Motion (2) Supporting Affidavit
As a general rule, you need to have done the following before you can make this motion:
G Filed a Notice of Appeal with the Nova Scotia Court of Appeal involving a criminal matter. G Applied for and been refused legal aid through the Nova Scotia Legal Aid Commission. G Exhausted all your appeal remedies within the Nova Scotia Legal Aid Commission and still be refused the services of a legal aid lawyer. G Exhausted all your own personal financial resources and not have the money to retain your own lawyer to represent you on the appeal
What are the reasons for your motion?
Under section 684 of the Criminal Code of Canada you have the obligation to demonstrate to the judge the following:
(i) that it is desirable in the interests of justice that you should have legal assistance, and (ii) that you do not have sufficient means to obtain that assistance
For these reasons, you should include the following information in your Affidavit in support of your motion for the appointment of legal counsel. (Note that this list is not exhaustive):
G Information regarding why you cannot conduct the appeal, including: < Education < Training < Employment/business background < Reading skills < Communication skills < Availability of help from friends or family with the reading materials < Familiarity with Court procedures < Understanding of the conviction(s) and /or sentence(s) under appeal
1 G Why your appeal is so complex that it requires a lawyer to advance the appeal on your behalf, including details of the grounds of appeal and the complexity of issues to be raised on appeal
G Why you believe your appeal should succeed;
G Details and documentation regarding why you say you cannot afford a private lawyer, and your efforts to retain private counsel
G Details and documentation of your efforts to retain a publically-funded lawyer, including: < That you have exhausted all your rights to legal counsel through the process established by the Nova Scotia Legal Aid Commission and that includes all appeal steps within the Nova Scotia Legal Aid Commission.
Follow these steps to file your motion for the appointment of legal counsel:
G Read the attached forms and this information sheet and try to understand how to make the motion for the appointment of legal counsel.
G Complete the document called the >Notice of Motion=:
< this is a fill in the blank form: write in the court file number, the names of the parties, and date and sign the form < If you are in custody: the date and time for the chambers motion should be left blank. The Registrar will set a date and time for your motion. < If you are not in custody: select a chambers date. Court of Appeal chambers are generally held on Thursdays at 10:00 a.m.
G Complete the Affidavit:
< you must provide as much detail as possible in the Affidavit and include the information requested in the above section entitled: What are the reasons for your motion? < your Affidavit must be sworn before a Commissioner of Oaths or a lawyer.
G Send your Notice of Motion and Affidavit to the Court.
< if you are in custody: you only need to send one copy of each document to the Registrar < if you are not in custody: you will need to send five copies of each document to the Registrar. Note that you must have your copies filed with the Court at least four clear days in advance of the chambers date you have selected for your
2 motion
G Once the Court receives these documents, the Registrar will review your documents. If everything is in order, the Registrar will:
< if you are in custody: a date and time for your motion will be set. The Registrar will notify the other parties, the Nova Scotia Legal Aid Commission, and counsel for the Attorney General of Nova Scotia, and will send you back a copy of each document for your own records. The Registrar will make arrangements with the institution to have you brought before the Court for the hearing of your motion
< if you are not in custody: the Registrar will return the extra copies of the documents to you. It is your responsibility to notify the other parties of the motion. This must be done at least four clear days in advance of the hearing date. In addition to notifying the other party(ies), you must also notify: $ Mr. Edward Gores, Q.C., for the Attorney General of Nova Scotia $ Ms. Charlene Moore, for the Nova Scotia Legal Aid Commission
3 Appendix ample letter from C egistrar re: ineffective asistance
The Law Courts Caroline McInnes 1815 Upper Water Street Registrar Halifax, Nova Scotia B3J 1S7
Phone: 902-424-8962 www.courts.ns.ca Fax: 902-424-0524 [email protected]
April 29, 2016
Darlene Bonvie and Clint Bonvie PO Box 497 Pictou, NS B0K 1H0
Dear Mr. Bonvie and Ms. Bonvie:
RE: CA 450219 – Darlene Bonvie and Clint Bonvie v. Minister of Community Services et al
Further to your appearance in chambers on April 28, 2016, for your motion for date and directions respecting your appeal, this will confirm the following:
(1) Motion for State Funded Counsel
Your motion for state funded counsel, together with your supporting affidavit, must be filed with the Court and served on the Attorney General of Nova Scotia on or before Friday, May 6, 2016. You were provided with the contact information for Mr. Edward A. Gores, Q.C., counsel for the Attorney General of Nova Scotia during your chambers appearance. It is: Department of Justice (Nova Scotia), 1690 Hollis Street, 8th Floor PO Box 7, Halifax, NS B3J 2L6, Fax: 902-424-1730. Mr. Gores has been asked to provide the Attorney General’s response by May 13, 2016.
Your motion for state funded counsel will be heard in chambers on Thursday, May 19, 2016 at 10 a.m. That hearing will take place here at the Law Courts, 1815 Upper Water Street, Halifax.
To assist you with the filing of your motion for state funded counsel, I enclose an instruction sheet and forms you may use. In particular, these are a notice of motion and an affidavit. In addition, I enclose a few cases for your review which you may find helpful in understanding the legal test the judge has to apply when deciding whether you will be granted state funded counsel for this appeal. Namely, these cases are: New Brunswick (Minister of Health and Community Services v. G. (J.) [J.G.], [1999] S.C.J. No. 47, P.B. v. Nova Scotia (Minister of Community Services), 2014 NSCA 113, and L.F. v. Children’s Aid Society of Halifax, 2005 NSCA 49. 2
(2) Appeal Hearing
The hearing date for your appeal is set for Friday, September 9, 2016, starting at 10 a.m. The hearing is set for the full day. I will set out below other important filing dates and information on what you will need to file for the appeal.
I have included for your information a recent document published by the Court of Appeal that you may find helpful in understanding the appeal process. It is the ‘How-To Manual for Civil Appeals’.
(a) Appeal Book
The Appeal Book is a document you must put together that contains the record that was before the trial judge, as well as some documents that were filed for this appeal. Your appeal book must be filed on or before Friday, June 17, 2016.
I am enclosing a copy of Civil Procedure Rule 90.30. It sets out what must be included in the appeal book and how the appeal book should be formatted. You may also want to take a look at some of the information on our courts’ website about appeal books, at the following link: http://courts.ns.ca/Appeal_Court/NSCA_appeal_book_how_to.htm.
Ms. McFadgen, counsel for the Minister of Community Services, will provide you with a copy of the transcript of the proceedings in the court below on or before June 3, 2016. The transcript is one of the documents that you must include in the appeal book. She will also, on or before May 13, 2016, provide you with a list of the documents filed in the court below. This should assist you in preparing your appeal book. Once you have the list, you should contact your former lawyers and /or the Family Court for copies of the documents that you have to include in your appeal book.
After your appeal book is filed, if counsel for the Minister of Community Services notes any deficiencies in the appeal book, they shall file a Supplementary Appeal Book on or before June 27, 2016. If this is filed, counsel will provide you with a copy of it.
(b) Motion to Introduce Fresh Evidence and Allegations of Ineffective Assistance of Trial Counsel
You have advised that you intend to proceed with a motion to introduce fresh evidence on the appeal, and that one of your intended grounds of appeal is in relation to the allegations of ineffective assistance of trial counsel. You identified that the counsel involved at the trial level was Mr. Rob Sutherland and Mr. Pavel Boubnov.
To assist you with these motions, I enclose an information package on making a motion for fresh evidence, along with two forms: a notice of motion and an affidavit. Your motion for fresh evidence and supporting affidavit (with should include not only your 3 fresh evidence, but should also set out the details you allege respecting ineffective counsel) must also be filed by June 17, 2016.
Any response materials by the Minister of Community Services or on behalf of the counsel subject to the allegations must be filed by June 30, 2016.
(c) Factum and Book of Authorities
Your factum (Appellants’ Factum) and Book of Authorities is due by July 8, 2016. Please include in your factum your arguments on your fresh evidence and ineffective counsel motion.
The Respondent’s Factum is due July 22, 2016. Submissions responding to the motion for fresh evidence and allegations of ineffective counsel should be included.
In the event that the Respondents Chad Bonvie or Lorrie Morse intend to make submissions to the Court, their Factums will also be due to be file by July 22, 2016.
I have included for your convenience a copy of Civil Procedure Rule 90.32 and 90.33. which talk about the content and format of your Factum and Book of Authorities.
(d) Filing documents
As you may see when reviewing some of the extra resource materials provided, the documents listed in this letter under the ‘Appeal Hearing’ section (in particular, your appeal book, motion and affidavit for fresh evidence and ineffective assistance of counsel, factum and book of authorities), will be reviewed by a panel of the Court (and not just a single judge) that will hear your appeal.
Therefore, the Court keeps 5 copies of your Appeal Book, Appellants’ Factum, Book of Authorities, and Motion and Affidavit for fresh evidence and ineffective assistance of counsel. This means that you must file 5 copies of these materials with the Court, plus one copy of each for every other party that is participating in the appeal.
(e) Scope of the Appeal
This letter also serves as written confirmation of your statements made before Justice Van den Eynden in chambers that your appeal is only in relation to the two youngest children. You are not challenging the consent order issued respecting the two older children. Accordingly, the guardian ad litem in the Court below has no interest in this appeal. 4
(f) Service on the Respondents Chad Bonvie and Lorrie Morse
Finally, you advised Justice Van den Eynden in chambers that you served a copy of the Notice of Appeal on the respondents Chad Bonvie and Lorrie Morse. They were not present in Court on April 28, 2016. In order to confirm that you served these parties, I am enclosing two copies of an affdiavit of service for you to complete. You will have to provide the details of how and when you served these parties, and send this to the Court for filing.
Yours truly,
Caroline McInnes Registrar cc: Amberleigh Bonvie, Katie Bonvie (by way of their Guardian ad litem, Sonya Paris), c/o Tammy MacKenzie, via fax: 902-895-7709 Chad Bonvie and Lorrie Morse Minister of Community Services, c/o Patricia McFadgen, via fax: 902-424-1730 Attorney General of Nova Scotia, c/o Edward A. Gores, Q.C., via fax: 902-424-1730 Trial Counsel, c/o Stacey Gerrard, via fax: 902- 421-1822 Appendix C rotocol
Appendix C rotocol
PRACTICE DIRECTIONS PRINCE EDWARD ISLAND COURT OF APPEAL 6. APPLICATIONS AND MOTIONS IN CRIMINAL MATTERS (e) Ineffective counsel Protocol for motion for fresh evidence on appeal involving an allegation of ineffective or incompetent trial counsel. Overview In a criminal appeal from conviction or sentence, the appellant may raise as a ground of appeal that their trial counsel was ineffective or incompetent and that a miscarriage of justice resulted. 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. This is initiated by an appellant’s motion to adduce fresh evidence and accompanying affidavit. The motion process gives the court and trial counsel notice of the allegations and provides counsel with a reasonable opportunity to respond. Trial counsel will usually provide a response to such evidence, by affidavit. The Court of Appeal can then consider the allegations and the response in a hearing of the appellant’s motion to adduce fresh evidence. A useful discussion of the issues raised in appeals involving allegations of ineffective trial counsel can be found in the Supreme Court of Canada decision in R. v. G.D.B., 2000 SCC 22. Protocol 1. All Notices of Appeal are reviewed by the Deputy Registrar. This review includes a search for grounds of appeal that contain an allegation of ineffective counsel. 2. If Crown counsel becomes aware that an appellant is alleging ineffective counsel, Crown counsel will notify the Deputy Registrar. 3. If the grounds of appeal include an allegation of ineffective trial counsel, the Deputy Registrar will forward the Notice of Appeal to trial counsel. 4. The Deputy Registrar will notify the Chief Justice, who will consider providing directions or appointing a judge to provide directions regarding the appellant bringing forth a motion for fresh evidence. Directions could be preceded by an inquiry about whether the Court should assign legal assistance for the appellant pursuant to Criminal Code s.684. 5. The Deputy Registrar will provide trial counsel with a copy of the motion for fresh evidence and all correspondence and documents filed with the Court of Appeal on the motion. 6. On a conference for directions or a hearing of a motion for directions, trial counsel will advise the judge whether they intend to participate in the motion for fresh evidence. In particular, counsel will advise the court whether they intend to file affidavit evidence or respond otherwise to the appellant’s motion for fresh evidence. 7. Should the response of trial counsel involve disclosure of potentially privileged information, counsel should bring a motion for directions regarding waiver of privilege sought. 8. Trial counsel may apply for intervenor status in an appeal. In some circumstances, the nature of the allegations may result in standing being granted. Effective September 1, 2016. Appendix CC Rules provision re: ineffective assistance
Section 26, Rules of Practice of the Court of Appeal in Criminal Matters
2006-12-13 Canada Gazette Part II, Vol. 140, No. 25 Gazette du Canada Partie II, Vol. 140, no 25 SI/TR/2006-142
Allegation of 26. (1) An appellant who alleges the incompetence of 26. (1) L’appelant qui allègue l’incompétence de Allégation professional counsel who acted on behalf of the appellant in first l’avocat qui le représentait en première instance en d’incompétence incompetence instance shall notify the counsel by serving on the latter a avise ce dernier en lui signifiant une copie des professionnelle copy of the written proceedings containing the allegation. procédures écrites contenant cette allégation.
(2) If the appellant wishes, in support of this ground of (2) Si l’appelant désire présenter une preuve, qui n’est appeal, to introduce evidence that is not already in the pas déjà au dossier de première instance, au soutien de record of first instance, the appellant shall also notify the ce moyen d’appel, il en informe par écrit le juge en Chief Justice in writing, with copies to the Attorney chef, avec copie au procureur général et à l’avocat qui General and the appellant’s counsel in first instance. The le représentait en première instance, en précisant le notice shall describe the content of the evidence and the contenu de cette preuve et les modalités qu’il propose procedure the appellant proposes for taking the evidence. pour la recueillir.
(3) In the same manner, if the Attorney General wishes, (3) De la même manière, si le procureur général désire in rebuttal of this ground of appeal, to introduce evidence présenter une preuve, qui n’est pas déjà au dossier de that is not already in the record of first instance, the première instance, pour contrer ce moyen d’appel, il Attorney General shall notify the Chief Justice in writing, en informe également par écrit le juge en chef, avec with copies to the appellant and the appellant’s counsel in copie à l’appelant et à l’avocat qui représentait ce first instance. The notice shall describe the content of the dernier en première instance, en précisant le contenu evidence and the procedure the Attorney General de cette preuve et les modalités qu’il propose pour la proposes for its reception. recueillir.
(4) If counsel against whom incompetence has been (4) Si l’avocat dont on allègue l’incompétence désire alleged wishes to respond, that counsel shall so notify the répondre, il en informe par écrit le juge en chef, avec Chief Justice in writing, with a copy to the parties, and copie aux parties, et indique les modalités qui lui shall describe the means considered appropriate to paraissent appropriées pour faire part de son point de present that counsel’s position. vue.
(5) At a management conference in criminal matters, a (5) Un juge peut, par une conférence de gestion Judge may attempt to have the parties agree on the means pénale, tenter d’amener les parties à s’entendre sur les by which the evidence may be received as well as a modalités pour recueillir la preuve ainsi que sur un timetable. échéancier. (6) The parties may present appropriate motions in order to be authorized to produce any new evidence. (6) Les parties présentent les requêtes appropriées afin d’être autorisées à produire la nouvelle preuve. Appendix CC case management form for appeals involving allegations of ineffective assistance
COURT OF APPEAL OF QUEBEC
October 21, 2014
New form Files in criminal matters alleging the professional incompetence of trial counsel
NOTICE
As of October 21, 2014, when a Notice of Appeal or a Motion for Leave to Appeal alleges, explicitly or implicitly, the professional incompetence of trial counsel, the parties must complete the "Form for the Management of an Appeal Alleging the Incompetence of Trial Counsel".
This form must be completed and filed within the time limit specified at the bottom of the first page, otherwise proceedings may be suspended pending the filing of the form. It goes without saying that parties and counsel involved must also meet the requirements of Article 26 of the Rules of the Court of Appeal of Quebec in Criminal Matters, the text of which is annexed to the form.
The form is available in both French and English on the Court of Appeal website.
NICOLE DUVAL HESLER CHIEF JUSTICE OF QUEBEC FORM FOR THE MANAGEMENT OF AN APPEAL ALLEGING THE INCOMPETENCE OF TRIAL COUNSEL (Section 26, Rules of Practice of the Court of Appeal in Criminal Matters)
CANADA COURT OF APPEAL PROVINCE OF QUEBEC
Appeal file number ( ) Trial file number
Appellant v.
HER MAJESTY THE QUEEN Respondent
Appellant's counsel Respondent's counsel
Name:
Tel.:
Email:
Contact information of trial counsel:
NOTE: This form must first be completed by the appellant, then by the respondent, and be filed with the motion for leave to appeal or the notice of appeal, or if such is not possible, with the motion to adduce new evidence. In any event, it must be filed not later than three days prior to a management conference. The form may be completed directly on the screen to be printed and signed by the parties. It may also first be printed and then completed and signed by the parties. 1/6 1. [Appellant] Section 26(1): When and how was the allegation of incompetence served on the appellant's trial counsel? [2 lines, max.]
If not, for what reason? [5 lines, max.]
2. [App.] Section 26(4): Do you know if trial counsel wishes to respond to the allegation? If so, how? Has the Chief Justice been informed? When? [3 lines, max.]
3. [App.] What is the nature of the allegation of incompetence? (e.g. failure to examine a witness or to call witnesses or to have adequately counselled the accused, conflict of interest). Specify. [5 lines, max.]
Management of an appeal alleging the incompetence of trial counsel (Section 26, Rules of Practice of the Court of Appeal in Criminal Matters) 2/6 4. [App.] Has the appellant waived professional secrecy between him or her and trial counsel? Is the waiver total or partial? If partial, in what precise respect? [5 lines, max.]
5. [App.] Sections 26(2) and (6): What evidence do you intend to produce in support of the allegation of incompetence? [5 lines, max.]
Exhibits Transcript of testimony The appellant's declaration under oath Trial counsel's declaration under oath The declaration(s) under oath of other witnesses (Specify)
6. [Respondent] Do you intend to cross-examine some of the declarants under otah? [2 lines, max.]
Management of an appeal alleging the incompetence of trial counsel (Section 26, Rules of Practice of the Court of Appeal in Criminal Matters) 3/6 7. [Resp.] Sections 26(3) and (6): Do you intend to produce any evidence? Exhibits? Depositions? Declarations under oath? [5 lines, max.]
8. [App.] Sections 26(2) and (6): Do you anticipate any examinations under oath? When and how do you suggest they be conducted? [5 lines, max.]
9. [Resp.] Sections 26(3) and (6): Same question. [5 lines, max.]
10. [App.] Do you anticipate cross-examinating any witnesses of the respondent? [3 lines, max.]
Management of an appeal alleging the incompetence of trial counsel (Section 26, Rules of Practice of the Court of Appeal in Criminal Matters) 4/6 11. [Resp.] Same question with respect to the appellant's witnesses. [3 lines, max.]
12. [App.] What timetable do you propose for the adduction and filing of the new elements of evidence? [5 lines, max.]
13. [Resp.] Same question. [5 lines, max.]
14. [App.] Do you have any other issues to discuss concerning the management of the file? [5 lines, max.]
Management of an appeal alleging the incompetence of trial counsel (Section 26, Rules of Practice of the Court of Appeal in Criminal Matters) 5/6 15. [Resp.] Same question. [5 lines, max.]
Place Date
I agree to proceed in the manner described above.
Signature of appellant's counsel
Place Date
I agree to proceed in the manner described above.
Signature of respondent's counsel
Management of an appeal alleging the incompetence of trial counsel (Section 26, Rules of Practice of the Court of Appeal in Criminal Matters) 6/6 Appendix C ractice irection
Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario
Effective: 1 March 2017
7.3.5. Motions to Introduce Fresh Evidence 1. The Court of Appeal may receive fresh evidence to enable the court to determine the appeal. The court has broad discretion to receive further evidence on appeal when the court considers it in the interest of justice to do so: Criminal Code, s. 683. Such motions are heard by a three-judge panel of the court at the time the appeal is heard. 2. Where the fresh evidence sought to be admitted raises a claim of ineffective assistance of counsel, section 17 of this Practice Direction applies. 8. Appeal Management 3. In all cases in which an appellant alleges ineffective assistance of trial counsel, or where any party seeks to introduce fresh evidence on an appeal from conviction, a verdict of not criminally responsible on account of mental disorder or unfit to stand trial or a decision under Part XXIV of the Criminal Code, an appeal management judge shall be assigned. 17. ALLEGATIONS OF INEFFECTIVE ASSSITANCE OF COUNSEL 1. This section of the Practice Direction applies to appeals to the Court of Appeal for Ontario in which an appellant proposes to allege that trial counsel provided ineffective assistance to him or her or otherwise caused or contributed to a miscarriage of justice. 2. For the purposes of this section, the following definitions apply: (i) “appeal counsel” means a defence lawyer who is retained to represent an appellant on any appeal against conviction and/or sentence to the Court of Appeal for Ontario; (ii) “appellant" means a person who has been convicted of a criminal offence and has launched an appeal against that conviction and/or sentence to the Court of Appeal for Ontario; (iii) “appeal management judge" means the judge of the Court of Appeal who is responsible for managing the perfection of the appeal; (iv) "Court" means the Court of Appeal for Ontario or a panel thereof; (v) "file" means all of the pleadings, disclosure, documents, memoranda, records, instructions, transcripts, journals, correspondence of all kinds, whether written or electronic, that were kept or used by trial counsel in respect of criminal proceedings against an appellant; (vi) “record” means all evidence and submissions filed with respect to the fresh evidence application; (vii) "respondent" means counsel for the Crown (either from the Crown Law Office - Criminal or the Federal Department of Justice) assigned to respond to the appellant's appeal; and (viii) “trial counsel" means any defence lawyer who was retained to act on behalf of any appellant in criminal proceedings at trial.
3. Before appeal counsel decides whether to advance an allegation of ineffective assistance of trial counsel as a ground of appeal, appeal counsel shall, as soon as possible: (i) satisfy him or herself, by personal investigation or inquiries, that some factual foundation exists for this allegation apart from the instructions of the appellant; (ii) provide trial counsel with informal notice of the general nature of the potential allegation of ineffective assistance; (iii) provide trial counsel with a copy of this section of the Practice Direction, or a link to the court’s website where it can be found; and (iv) provide trial counsel with a reasonable opportunity to respond to the allegations.
4. When provided with informal notice of the potential allegations, trial counsel shall acknowledge receipt of the notice in writing to appeal counsel as soon as reasonably possible. In any case in which appeal counsel decides to pursue an allegation of ineffective assistance of trial counsel as a ground of appeal, appeal counsel shall: (i) provide trial counsel with a copy of a supplementary notice of appeal in which the allegation of ineffective assistance of counsel is described with reasonable particularity, together with any subsequent documents that provide any further details of the claim; (ii) serve a copy of the supplementary notice of appeal and any subsequent documents that provide further details of the claim on the respondent; (iii) file a supplementary notice of appeal with the Court; and (iv) serve and file with the supplementary notice of appeal a cover letter stating that the matter concerns an allegation of ineffective assistance of counsel, and providing the court with the address, telephone number, and e-mail address of the trial or appellate counsel alleged to have provided ineffective assistance. 5. Upon receipt of a supplementary notice of appeal or other document alleging ineffective assistance of trial counsel, a judge of the court will be appointed appeal management judge to supervise the collection and assembly of materials that will become the record for the advancement and determination of the allegation of ineffective assistance of trial counsel. There is no need for counsel to request appeal management in these cases.
6. As soon as reasonably possible after receiving a written request from appeal counsel and a written direction from the appellant or a supplementary notice of appeal that contains an allegation of ineffective assistance, whichever is first to occur, trial counsel shall forthwith transfer the entire file to appeal counsel. If trial counsel has any objection to the transfer of the file, he or she may bring an application for directions to the appeal management judge as soon as possible.
7. If trial counsel wants to, or is professionally obligated to, keep a copy of any portions of the trial file before transferring the file to appeal counsel, trial counsel may, at his or her expense, make copies of those documents she or he wishes to retain from the file. Further, if trial counsel wants access to the file in connection with the appellant’s case after its transfer to appeal counsel, appeal counsel must: (i) facilitate trial counsel’s access to the entire file within a reasonable time; and (ii) permit trial counsel to make copies of those documents she or he wishes from the file at trial counsel’s own expense.
8. As soon as reasonably possible after being served with a notice of appeal, supplementary notice of appeal or other document alleging ineffective assistance of trial counsel, the responsible Director of the Crown Law Office – Criminal or the Public Prosecution Service of Canada shall: (i) assign counsel to respond to the appeal and to deal with any issues that may arise concerning the claim of ineffective assistance of trial counsel; and (ii) advise the Criminal Appeal Coordinator of the name of counsel assigned to respond to the appeal. An e-mail to this effect is sufficient.
9. Starting from 30 days after appeal counsel’s receipt of the appellant’s file from trial counsel, appeal counsel shall permit counsel for the respondent to have access to this file, except for any materials over which the appellant claims solicitor-client privilege. Where the appellant does not assert any claim of solicitor-client privilege with respect to any material in the file, the respondent may make copies of any or all of those materials at the respondent’s expense. 10. Where the appellant asserts a claim of solicitor-client privilege with respect to any materials in the file, appeal counsel shall forthwith provide the respondent with: (i) an inventory identifying the materials alleged to be privileged, to the extent it is possible to do so without compromising the privilege; and (ii) a brief written statement of appeal counsel’s position on the basis of the claim of the solicitor-client privilege and the extent or scope of any waiver of the privilege arising from the allegation of ineffective assistance at trial. (iii) Where the respondent takes issue with the applicability of solicitor-client privilege as advanced by appeal counsel, the respondent may apply to the appeal management judge for directions about the determination of the issue, in accordance with para. 11, below.
11. As soon as practicable and not later than 45 days from the date on which counsel for the respondent has been assigned to the appeal, appeal counsel shall complete, serve on the respondent and file with the Court a document in Schedule ‘A’ Word, PDF, available on the court’s website. Within the same time period, appeal counsel and counsel for the respondent shall arrange a meeting or a conference call with the appeal management judge regarding:
(i) the specific nature of the allegation of ineffective assistance; (ii) any issues arising from the assertion of solicitor-client privilege and the extent of any waiver of that privilege; (iii) any issues arising out of access to the trial file by trial counsel or the respondent; (iv) a timetable for the appellant’s perfection of the appeal, including the filing of material to comprise the record on the claim of ineffective assistance of counsel; and (v) any other issues relating to the perfection, listing and argument of the appeal.
12. Appeal counsel shall file with the court an inventory of all material that they propose to have constitute the record in connection with the claim of ineffective assistance of trial counsel not later than the deadline imposed by the appeal management judge. To the extent that the respondent knows at this stage of any materials to be filed, they may be included in a joint record to avoid duplication.
13. As soon as possible after the inventory of proposed contents of the record has been filed, appeal counsel, the respondent and the appeal management judge shall meet in person or by conference call to discuss and for the appeal management judge to provide directions about: (i) the order and timetable for cross-examination on the materials filed by appeal counsel and the respondent; (ii) the timetable for cross-examination of trial counsel on his or her affidavit, or if trial counsel has not filed an affidavit, for examination of trial counsel on his or her professional performance at trial; and (iii) the resolution of any outstanding or potential issues of solicitor-client privilege before the examination or cross-examination of trial counsel takes place.
14. When the record for the claim of ineffective assistance of counsel at trial has been completed, appeal counsel and the respondent shall meet in person or by conference call with the appeal management judge regarding: (i) filing the record compiled in connection with the claim of ineffective assistance of trial counsel; (ii) filing any additional factums relating to this ground of appeal; (iii) determining the time to be allotted for oral argument; (iv) a timetable for the filing of material to be filed on behalf of the respondent; (v) a timetable for any remaining cross-examinations; (vi) setting a date for the hearing of the appeal; and (vii) any other issue relating to the perfection, listing or hearing of the appeal, including whether any further appeal management conference calls are necessary.
15. Where the advancement of ineffective assistance of trial counsel as a ground of appeal involves an application by appeal counsel to introduce fresh evidence on the hearing of the appeal, the record shall be sealed when filed with the court in accordance with section 7.3.5 of this Practice Direction. Absent direction or an order from the appeal management judge to the contrary, the parties may make detailed reference in their respective factums to the content of the material included in the record completed for the purposes of advancing this ground of appeal. The court may read the sealed materials in advance of the hearing of the appeal. Any factums relating to the fresh evidence shall also be sealed.
16. Where the alleged ineffective assistance was by appellate counsel and not trial counsel, this counsel may be referred to as “first appellate counsel”, and the rest of this section applies with the appropriate modifications.
17. The procedure described in this section of the Practice Direction does not relieve appeal counsel of the obligation to perfect the appeal in accordance with the Criminal Appeal Rules. The appeal management judge may give directions or make orders relieving appeal counsel or the respondent of strict compliance with this Practice Direction or the Criminal Appeal Rules. Appendix C case management form for appeals involving allegations of ineffective assistance
Court of Appeal for Ontario Practice Direction
Schedule A Appeal Management Form Re Allegations of Incompetence of Trial Counsel In Criminal Cases
Name of Appellant: Court of Appeal File No.: C
Appellate Counsel:
tel:
Crown Counsel:
tel:
Trial Counsel:
1. Is the allegation of the incompetence of trial counsel the only ground of appeal?
No Yes - attach a copy of the Notice of Appeal
Additional grounds are: 2
2. What is the nature of the allegation of incompetence? (e.g. conflict of interest, failure to interview/call witnesses etc.)
3. What is the evidentiary foundation for the allegation of incompetence? transcript affidavit from appellant affidavit from trial counsel affidavits from other witnesses (details) other (specify)
4. Has notice of the allegation of incompetence been given to trial counsel? Yes No (explanation for failure to notify) 3
5. Has appeal counsel received trial counsel's file? Yes - date received: No
6. Is trial counsel bringing an application to object to the transfer of the file? No Yes
7. Has Crown counsel been given access to trial counsel's file? No Yes - date provided:
8. Has the Appellant given a waiver of privilege in relation to trial counsel's file? No Yes - date provided:
9. If a waiver has been given, are there limitations on its scope? No Yes (specify)
10. Is a claim of solicitor-client privilege being made for any material in the file? No Yes 4
11. Has Crown counsel received an inventory of the materials over which privilege is claimed? No Yes - date provided:
12. Has Crown counsel received a written statement of the basis for any claim of privilege? No Yes - date provided:
13. Is Crown counsel bringing an application for directions as to how the validity of the claim of privilege may be challenged? No Yes - proposed date for application:
14. What is the status of the Appellant's fresh evidence material?
15. Proposed dates for the filing of the Appellant's fresh evidence materials: 5
16. Has the Respondent been served with all of the Appellant's materials in support of the Allegation of incompetence of trial counsel? Yes No
17. If the Respondent has not received all of the Appellant's materials,
- list the materials which have been received:
- list the materials which are outstanding:
- proposed date for filing the Appellant's materials:
18. Is the Respondent intending to file material in response to the Appellant's material? Yes No 6
19. Proposed date for filing the Respondent's materials:
20. Other issues to be discussed with the Case Management Judge:
Counsel for the Appellant Of Counsel for the Respondent
Date:
Please Fax The Completed Schedule to the Attention of the Criminal Appeals Coordinator to (416) 327-6256, or Scan and E-mail to: [email protected]. Appendix C rotocol
NOTICE
COURT OF APPEAL
RE: DIRECTIVE REGARDING APPEAL PROCEEDINGS INVOLVING ALLEGATIONS OF INEFFECTIVE COUNSEL IN FIRST INSTANCE
Preamble
In criminal appeals from conviction and or sentence, the appellant may raise grounds of appeal suggesting that their counsel was ineffective or otherwise contributed to a miscarriage of justice in first instance. In such cases, the appellant will often want to provide the Court with information concerning instructions to and conduct of counsel. This information will typically come before the Court by way of a motion for leave to file fresh evidence. Any response to such evidence will usually come from counsel in first instance. The response could consist of affidavits to be considered by the Court on the fresh evidence motion.
If the appellant is represented by counsel it is expected they will undertake an assessment of the merits of the complaint against counsel prior to raising these issues in the Notice of Appeal. In most cases that assessment will include giving counsel notice of the allegations against them and providing a reasonable opportunity to respond.
A useful discussion of the issues raised in appeals involving allegations of ineffective trial counsel can be found in the Supreme Court of Canada decision in R. v. G.D.B., 2000 SCC 22 (CanLII), [2000] 1 S.C.R. 520 and this Court’s decision in R. v. Le (T.D.), 2011 MBCA 83 (CanLII), 270 Man.R. (2d) 82.
Directive
1. All Notices of Appeal in criminal matters will be reviewed by the Registrar or Deputy Registrar. As part of this review, an attempt will be made to discern whether the grounds of appeal include allegations with respect to the conduct of counsel in first instance. If Crown counsel becomes aware that an Appellant is raising such issues he or she will promptly notify the Registrar. 2. If the Registrar or Deputy Registrar determines the grounds of appeal include allegations with respect to the conduct of counsel in first instance, a letter enclosing a copy of the Notice of Appeal will be sent to that counsel. This letter will be copied to the parties to the appeal. In addition the Registrar or Deputy Registrar shall report the matter to the Chief Justice who may consider appointing a judge to provide directions, on his or her own initiative or on motion.
3. Counsel in first instance will be provided with copies of correspondence or documents filed with the Court with respect to any motion for directions.
4. Counsel for the appellant in first instance must advise the Court on the hearing of any motion for directions whether they intend to participate in the proceeding. In particular, counsel will advise the Court whether they intend to make any motion or file affidavit evidence.
5. Should the response by counsel involve disclosure of potentially privileged information, a motion for directions regarding waiver of privilege would be expected.
6. In some circumstances, the nature of the allegations against counsel may result in an application for intervener status on the appeal.
ISSUED BY:
Original Signed by
______
D. McCoy – Registrar
Court of Appeal
Manitoba
Date: January 15, 2016 Appendix CC ractice irective
COURT OF APPEAL
British Columbia Court of Appeal Practice Directive (Criminal) Title: Ineffective Assistance of Trial Counsel
Issued: 12 November 2013 Effective: Immediately Cite as: Ineffective Assistance of Trial Counsel (Criminal Practice Directive, 12 November 2013) If a party is not represented and makes allegations of ineffective assistance of trial counsel, the appeal will be immediately referred to case management for directions.
Stage One: Counsel’s Duties Where there are allegations that trial counsel was ineffective or incompetent
1. Before advancing an appeal involving grounds of appeal which allege ineffective assistance or incompetence of trial counsel, counsel for the appellant must: a. Take steps necessary to satisfy him or herself that there is some foundation for any allegations that trial counsel was ineffective or incompetent; and b. Informally notify trial counsel of the nature of the allegations bearing on the professional conduct of trial counsel, and give trial counsel a reasonable opportunity to informally respond to the allegations to counsel for the appellant. Stage Two: Advancing an Appeal Alleging that trial counsel was ineffective 2. Where a Notice of Appeal or amended Notice of Appeal includes grounds of appeal alleging the ineffective assistance of trial counsel: a. The Chief Justice will designate a justice of the Court as a case management judge to make directions with respect to the appeal. b. The registrar will, within four weeks of the filing of the Notice of Appeal, schedule a case management hearing to be presided over by the case management judge 3. Where the Notice of Appeal includes grounds of appeal or is amended to include grounds of appeal that trial counsel was ineffective or incompetent, counsel for the appellant shall formally serve a copy of that Notice of Appeal on trial counsel. 4. The appellant shall prepare and provide to trial counsel his or her affidavit setting out the factual basis for the allegations bearing on trial counsel’s professional conduct and a signed waiver in which the appellant expressly waives solicitor- client privilege to the extent necessary to allow trial counsel to respond to the allegations against him or her. The appellant shall also deliver a copy of the affidavit and signed waiver to the Crown/respondent. 5. Upon written request by counsel for the appellant, trial counsel shall forward his or her entire trial file to counsel for the appellant, in accordance with the professional obligations of counsel. 6. If trial counsel wants to keep a copy of all, or any portion, of the trial file before transferring the file to counsel for the appellant, trial counsel may (at his or her own expense) make copies of whatever documents he or she wishes from the file. In addition, if trial counsel wants access to the file in connection with the appellant's case after it has been transferred to counsel for the appellant, counsel for the appellant must facilitate this access to the entirety of that file in a timely way, and must permit trial counsel to make copies (at his or her own expense) of whatever documents he or she wishes from the file. 7. Upon receipt of a copy of a Notice of Appeal, the Crown/respondent will forward a letter in Form A to trial counsel requesting an affidavit in response to the allegations set out in the appellant’s material. 8. Upon receipt of the material referred to above, namely (a) a copy of a Notice of Appeal, (b) a signed waiver of privilege, (c) any affidavits or other material setting out the factual basis for the allegations bearing on trial counsel’s professional conduct, and (d) the request from Crown/respondent, trial counsel shall prepare an affidavit in response to the allegations. Trial counsel’s affidavit shall not divulge any confidential information learned or obtained by trial counsel during the course of the file or instructions given by the appellant, except to the extent necessary to fully respond to the allegations of ineffective assistance. Trial counsel’s original affidavit and a copy shall be provided to counsel for the appellant. 9. Upon receipt of trial counsel’s affidavit, counsel for the appellant shall review it and where he or she is of the opinion that it divulges confidential information or instructions of the appellant exceeding what is necessary for trial counsel to respond to the allegations, edit the copy of the affidavit and redact any portions of the affidavit over which privilege is asserted. A redacted copy of the affidavits shall be sent to the Crown/respondent (with redactions showing as blackened lines) and trial counsel, unless otherwise directed by the case management judge 10. Counsel for the appellant shall file with the Court, (a) the original copy of trial counsel’s affidavit and (b) any edited or redacted version of the affidavit, both which shall be sealed by the registrar pending directions from the case management judge. Stage Three: Case Management 11. At the case management hearing, the case management judge may make any directions necessary to ensure a timely and fair hearing of the appeal, and shall specifically consider whether, after receiving submissions from counsel for the appellant and the Crown/respondent, it is necessary to make directions concerning each of the following matters: a. Confirmation that trial counsel has been formally served with a copy of the Notice of Appeal, b. The time periods for preparation of any affidavits relied upon by the appellant in support of any allegations impugning the professional conduct of trial counsel to the extent that these materials have not already been prepared. c. The time periods for preparation of trial counsel’s affidavit and the submission of that affidavit to counsel for the appellant to the extent that this has not already occurred. d. The time periods for any editing or redacting of trial counsel’s affidavit by counsel for the appellant to the extent that this has not already occurred. e. The time period for providing a copy of trial counsel’s affidavit to the Crown/respondent, in either (i) unedited form, where counsel for the appellant determines that no editing is required or, (ii) edited form, where counsel for the appellant takes the position that editing is necessary because the affidavit divulges privileged information which is not necessary to respond to the allegations made against trial counsel. f. If trial counsel’s affidavit has been redacted by counsel for the appellant, the case management judge will, if required, review the original affidavit, the redacted affidavit and the appellant’s affidavit, and after hearing from the parties, decide whether solicitor client privilege has been waived by the appellant with respect to some or all of the redacted portions. If so, the case management judge will release these redacted portions to the Crown/respondent. g. The time period for the filing of the appellant’s application to adduce fresh evidence, including but not limited to any affidavits referred to above. h. If either party applies to cross-examine pursuant to Code s. 683(1) (b) or (d) on the affidavits filed, the division of the Court hearing the appeal must decide this issue. Such application shall be heard the same week the appeal is scheduled to be heard and by the same division hearing the appeal. i. Counsel will advise the case management judge if they wish to cross-examine on any filed affidavit. The case management judge will direct that trial counsel and/or the appellant attend the hearing of the appeal and the application to adduce fresh evidence and be available for cross-examination should the division of the Court so order. If counsel require a subpoena for a witness, they will submit their application for a desk order to the case management judge for the consideration of the Court. j. The time period for filing of the appellant’s factum after the filing of the affidavits. k. The case management judge may provide a memorandum to the division hearing the appeal setting out any orders or directions, with copies to the parties. Stage Four: The Hearing 12. Subject to the directions of the case management judge, a date for the hearing of the appeal shall not be set until: a. The appeal books and transcripts have been filed in accordance with the Rules. b. The appellant has filed an application to adduce fresh evidence, identifying any and all affidavits filed. c. All of the matters listed in paragraph 11 (a) through (j) have been considered and\or addressed by the case management judge.
History: Replaces the criminal Practice Directive titled Ineffective Assistance of Trial Counsel, dated 19 September, 2011 and 1 February 2005. Appendix CC case management form for appeals involving allegations of ineffective assistance FORM A Form letter to impugned trial counsel
Dear Sir / Madam: Re: R. v. (name of appellant) CA0 ______
As you are aware, the above-captioned individual is appealing his/her conviction from (identify offence(s)) returned on (date) in (level of court). You were counsel at trial for (name of appellant). I represent the Crown/respondent in this matter. The appellant has alleged in a(n) (amended) notice of appeal filed on (date) that your representation of him/her was ineffective and resulted in a miscarriage of justice. The details of this alleged ineffective representation are contained in the appellant’s affidavit sworn (date) and (identify any other supporting material). It is my understanding that (name of appellant’s counsel) has served this material upon you. The Court of Appeal will require a response to these allegations from you in order to properly dispose of this ground of appeal. Your response should be in affidavit form. Please prepare and swear an affidavit responsive to the particulars of the allegations raised against you. To facilitate your doing so, it is my further understanding that (name of appellant’s counsel) has delivered to you an express waiver of solicitor- client privilege to the extent necessary for you to respond, signed by the appellant. It is not my intention to engage in a discussion with you concerning the content of your affidavit other than to point out that a complete response to each and every allegation is desirable. To this end, I’d ask you to have particular regard to the following portions of the appellant’s material: (enumerate applicable or pertinent paragraphs, etc.) Once your affidavit is sworn, please deliver the original and a copy to (name of counsel for the appellant). (Name of counsel for the appellant) will then vet your affidavit for its adherence to the scope of the waiver of privilege. Do not send a copy to me at this point in time. Should there be any disputes about whether your affidavit exceeds the scope of the waiver, they will be addressed through the case management process currently underway in connection with this appeal under the auspices of (name of case management justice). Appendix C ractice irective
DIRECTIVE 6 DIRECTIVE 6 INEFFECTIVE ASSISTANCE OF TRIAL ASSISTANCE INEFFICACE DE COUNSEL L’AVOCAT AU PROCÈS
Application of Practice Directive Application de la directive de pratique
This Directive applies to those criminal La présente directive s’applique lorsque conviction appeals before the Yukon Court l’appelant interjette appel d’une déclaration of Appeal in which the Appellant advances de culpabilité pour le motif que l’assistance as a basis of the appeal that his or her Trial fournie par son avocat au procès était Counsel provided ineffective assistance at inefficace et que cela a provoqué un déni trial resulting in a miscarriage of justice. de justice.
Case Management of the Appeal Gestion de l’instance d’appel
Upon filing of a notice of appeal in which Lorsque l’appelant dépose un avis d’appel the Appellant alleges ineffective assistance alléguant que l’assistance fournie par son on the part of Trial Counsel, the Chief avocat au procès était inefficace, le juge en Justice may direct that a case management chef peut ordonner que la gestion de judge be assigned. Either party may also l’instance soit confiée à un juge. L’une ou write to the registry to request a case l’autre des parties peut également écrire au management judge. greffe pour le demander.
Notification of Trial Counsel of Avis à l’avocat du procès Allegations Lorsque le mémoire de l’appelant fait valoir Where the Appellant’s factum alleges que l’assistance de l’avocat au procès était ineffective assistance of counsel at trial, the inefficace, l’appelant doit déposer avec son Appellant shall file with the factum a Notice mémoire, un avis rédigé selon la formule A (in Form A) of the allegation and promptly et en remettre une copie sans délai à deliver a copy of the Notice to Trial l’avocat qui l’a représenté au procès. Counsel. Appendix C otice to egistrar form for appeals involving allegations of ineffective assistance Court of Appeal File No. ______
Form A
Ineffective Assistance of Trial Counsel
COURT OF APPEAL
Between: REGINA RESPONDENT
AND:
______Name APPELLANT
NOTICE TO REGISTRAR
The Appellant, ______, hereby gives notice to [counsel for [the Appellant] in the court below] ______that one of the grounds of appeal raised in the Appellant’s factum, which will be argued on this appeal, is the ineffective assistance of counsel at trial.
[Dated]
______[Name] Counsel for the Appellant
[Please file 2 copies with the Court of Appeal registry. The registry will forward a copy of this notice to the Crown. Appellant’s counsel is to promptly deliver a copy of this notice to Counsel for the Appellant at trial] No de dossier de la Cour d’appel : ______
Formule A
Assistance inefficace de l’avocat au procès
COUR D’APPEL
Entre : LA REINE INTIMÉE
ET :
______[nom] APPELANT
AVIS AU REGISTRAIRE
L’appelant, ______, donne avis à ______(avocat de (l’appelant) dans l’instance inférieure) que l’un des moyens d’appel énoncé dans son mémoire et qui sera soutenu dans l’appel porte sur le fait que l’avocat lui a fourni une assistance inefficace au procès.
(date)
______(Nom) Avocat de l’appelant
Prière de déposer deux copies de l’avis auprès du greffe de la Cour d’appel. Le greffe en enverra une copie au ministère public. L’avocat de l’appelant doit en délivrer une copie sans délai à l’avocat qui a représenté l’appelant au procès. Appendix ederal Court rotocol
Federal Court Cour fédérale
March 7, 2014 Procedural Protocol
Re Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court
1. Scope of Protocol This protocol addresses the procedure to be followed in the Federal Court where an applicant alleges professional incompetence, negligence, or other conduct against his or her former legal counsel or other authorized representative, within the context of applications for leave and for judicial review made under the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22, or applications filed as appeals under the Citizenship Act, R.S.C., 1985, c. C-29. For the purposes of this protocol, authorized representative includes an immigration consultant. The purpose of this protocol is solely to assist the Court in its adjudication of applications in which such allegations are made. 2. Requisite Steps Before Pleading Incompetence
i. Prior to pleading incompetence, negligence or other conduct by the former legal counsel or other authorized representative as a grounds for relief in an application for leave and for judicial review under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, or in an application brought as an appeal under the Citizenship Act, current counsel must satisfy him/herself, by means of personal investigations or inquiries, that there is some factual foundation for this allegation. In addition, current counsel must notify the former counsel or authorized representative in writing with sufficient details of the allegations and advise that the matter will be pled in an application described above. The written notice must advise the former counsel or authorized representative that they have seven days from receipt of the notice to respond. Along with this notice, and in cases where privilege may be applicable, current counsel must provide the former counsel or authorized representative with a signed authorization from the applicant releasing any privilege attached to the former representation along with a copy of this Protocol.
ii. Current counsel should, unless there is urgency, wait for a written response from the former counsel or authorized representative before filing and serving the application record. If the former counsel or authorized representative intends to respond he or she must do so, in writing to current counsel, within seven days of receipt of the notice from current counsel.
iii. If after reviewing the response of the former counsel or authorized representative, current counsel believes that there may be merit to the allegations, current counsel may file the application or appeal record with the Court. Any perfected application which raises allegations against the former counsel or authorized representative must be served on the former counsel or authorized representative and proof of service be provided to the Court. The application will be served on the respondent in the normal course. iv. Where current counsel is investigating the allegations against the former counsel or authorized representative and it becomes apparent that his or her pursuit of this investigation may delay the perfection of the application record or appeal record beyond the timelines provided for by the Rules, current counsel may apply by motion for an extension of time to perfect the record. v. If the former counsel or authorized representative wishes to respond to the allegations made in the record, he or she may do so in writing by sending a written response to current counsel and to counsel for the Respondent within ten days of service of the application or appeal record or such further time as the Court may direct. vi. Current counsel who wishes to respond to the communication received from the former counsel or authorized representative must file a motion under Rule 369 for an extension of time and for leave to file further written submissions with respect to the new material received. Any relevant evidence shall be included in the motion record and filed by way of affidavit, including any response from the former counsel or authorized representative and documentation of a complaint made to the appropriate provincial or federal governing body. vii. If no response from the former counsel or authorized representative is received within ten days of service, and no extension of time has been granted, current counsel must advise the Court and the respondent that no further information from the former counsel or authorized representative is being submitted and the Court shall base its decision on the application for leave or the application, as the case may be, on the material filed by the applicant and respondent without any further notification to the former counsel or authorized representative.
3. Steps upon Leave Being Granted or an Appeal Proceeding to Hearing
If, upon reviewing the materials filed, the Court decides to grant leave, the following procedure will apply: i. Current counsel will provide a copy of the order granting leave or the order(s) setting the matter down for hearing to the former counsel or authorized representative forthwith. ii. If the former counsel or authorized representative deems his or her further participation in the proceedings necessary, he or she may make a motion pursuant to Rules 109 and 369 for leave to intervene. It is presumed that in most cases, if leave to intervene is granted to the former counsel or authorized representative, written submissions will be permitted.
« Paul Crampton » Chief Justice Appendix C etter re: ederal Court rotocol
September 17, 2013
Via email: Sylvia.Mackenzie@fctcf.gc.ca
Sylvia MacKenzie Senior Counsel Federal Court Ottawa, ON K1A 0H9
Dear Ms. MacKenzie:
Re: Procedural Protocol – Allegations Against Counsel
I am writing on behalf of the Canadian Bar Association members of the Bench and Bar Liaison Committee (Immigration and Refugee Law), in response to the August 9, 2013 letter from the Department of Justice, proposing revisions to our draft, “Procedural Protocol Re: Allegations Against Counsel in Citizenship, Immigration and Protected Person Cases before the Federal Court.”
We are not opposed to the changes to section 2(v.) (response by former counsel) and section 3(i.) (provision to former counsel of order granting leave or setting matter down for hearing).
We have some concerns about the additional procedural steps proposed by the Department of Justice for current and former counsel. section 2(vi.): no rationale is given for requiring current counsel to make a formal R. 109 or R. 369 application, complete with motion record and affidavits, to relay the communication from former counsel. The original draft wording anticipates filing additional submissions (without a formal motion) in a set time. In our view, it is an onerous and unnecessary complication to ask current counsel to make a formal application. section 3(ii.): this would impose an onus on former counsel to make a formal application to intervene (R.109) or R. 369 motion to be heard by the Court. The Court has made these determinations in the past without a formal motion, affidavits, memorandum, presumably using its plenary jurisdiction. Again, the existing practice seems more straightforward and does not create unnecessary impediments for former counsel to participate if they wish.
500-865 Carling Avenue, Ottawa, ON, Canada K1S 5S8 tel/tél : 613.237.2925 | toll free/sans frais : 1.800.267.8860 | fax/téléc : 613.237.0185 | [email protected] | www.cba.org 2
As well, the Department of Justice suggests omitting section 3(iii.)(identifying the basis on which the Court will make its ruling). We believe it should remain in the Protocol as it provides clarity on how the Court will proceed.
Thank you for the opportunity, once again, to provide our input.
Yours truly,
(original signed by Kerri Froc for Mario Bellissimo)
Mario Bellissimo Chair, National Immigration Law Section cc. Deborah Drukarsh, Department of Justice Appendix AA form letter to prisoner appellants re: aiver
Date
Sent By Mail
PERSONAL & CONFIDENTIAL
Address
Insured: Our File:
Further to the court appearance on DATE, enclosed is a blank waiver of solicitor/client privilege. As the court has explained, you have advanced ineffective assistance of counsel as one of your grounds of appeal. In order to make that allegation against your former counsel, INSURED, you must file a motion to adduce fresh evidence with supporting affidavit evidence. In order for INSURED to file a reply affidavit, we must first be provided with a signed and witnessed waiver from you. Before signing it, I would strongly recommend you to seek independent legal advice from a lawyer.
I have also enclosed a self-addressed, stamped envelope so you may return the signed waiver to my attention.
Sincerely,
Stacey Gerrard LIANS Counsel
/ag
cc INSURED
00094595-1 Appendix raft aiver information letter to prisoner appellants
Waiving Solicitor-Client Privilege
This following content is provided for information purposes only. It is not legal or professional advice. It is not a replacement for legal advice.
What is Solicitor/Client Privilege?
As a rule: all communication between clients and their lawyers is not permitted to be disclosed to anyone and is not admissible in court even if it is relevant and important to the matter in dispute. These communications are considered privileged. However, there are times when there are exceptions to the rule. (Such as when there is an issue of public safety)
The civil and criminal justice system relies on clear and open written and verbal communication between clients and their lawyers. Without it, clients may not be completely open and honest with their lawyers which could result in the lawyer not being able to give proper legal advice to the client.
What information is protected?
Generally, it is all information—written or verbal—that a client gives in confidence to their lawyer that deals with the matter for which the lawyer has been retained. It does not have to be specific. The starting point is that all communication should be considered confidential. If a client seeks assistance and advice from a lawyer, in their professional capacity, those communications are privileged.
Waiver of Solicitor-Client Privilege
The solicitor-client privilege belongs to the client, not the lawyer. Only a client can set aside or “waive” privilege. To do so, a client has to provide informed consent. In other words: the client has to understand that they are waiving privilege and agree to do so.
It can also be waived, or set aside, by implication. This occurs when the Court has decided that privilege has been waived because of an argument advanced in a legal proceeding. For example: when an appellant argues in their appeal that their trial lawyer made an error that resulted in a finding of guilt. In order for the trial lawyer to respond to the allegation that the trial lawyer made an error, the Court waives the privileged communications between the appellant and their trial lawyer.
Ineffective Assistance of Counsel
This is a ground of appeal by a convicted defendant (appellant) where they allege that the lawyer at their trial was so ineffective, it resulted in wrongful conviction. The higher court must then decide, based on evidence submitted by the convicted defendant (appellant) and their trial lawyer whether the trial lawyer was incompetent which resulted in a miscarriage of justice and a wrongful conviction. The convicted defendant (appellant) must file, an affidavit explaining why their trial lawyer was ineffective, and provide a waiver so the trial lawyer can respond to the allegations. This is called a fresh evidence application. It is filed at the same time or after the appeal has been filed.
After hearing the evidence, the higher court then decides whether the trial lawyer was ineffective and if it resulted in a wrong conviction. Appendix C Criminal ppeal o to anual Page | 1
The Nova Scotia Court of Appeal A How-To Manual for Criminal Appeals
The purpose of this manual is to help you make an informed decision about appealing a criminal conviction or sentence.
Starting an appeal means you are prepared to dedicate the time, energy, focus and possibly the money to see the appeal through to its conclusion. You should not start an appeal unless you are committed to this process.
This manual lays out the mechanics of a criminal appeal. We encourage you to reference it as the appeal process unfolds.
1. Frequently Used Terms
Appeal Book The collection of the trial transcripts and copies of exhibits that make up the record. A transcript is a certified record of every word that was said by the judge, lawyers, and witnesses at a trial, prepared and certified to be accurate by a professional court reporter. The Crown lawyer will prepare the Appeal Book if you are incarcerated.
Appellant The person who is requesting an appeal court overturn a decision of a trial court.
Certificate A signed document which certifies the Appellant has started the Of Readiness process of gathering the materials necessary for the appeal book. It must provide an estimate of when the trial transcript will be prepared and when the appeal book can be filed with the court.
Chambers A sitting of the court dealing with brief but important matters such as setting dates. It is held in open court with the recording equipment turned on. In Halifax Supreme Court, Chambers is referred to as Crownside. If you live outside of Halifax, you may arrange to have your appeal set down via telephone chambers, referred to as telechambers.
Factum The written arguments filed by the Appellant and Respondent.
Ground of Appeal A one sentence summary of the mistake or mistakes the Appellant believes the trial judge made. There may be one ground of appeal or several. Page | 2
Indictable Offences The most serious crimes, such as homicide, robbery, aggravated assault, or trafficking in drugs. The most common indictable offences are in the Criminal Code or the Controlled Drugs and Substances Act. The Nova Scotia Court of Appeal hears appeals of indictable offences.
Indictment The document from Supreme Court which sets out your charge or charges.
Information The document from Provincial Court which sets out your charge or charges.
Nova Scotia Court of The highest court in the province. It is where an appeal for Appeal indictable offences or an appeal from a Summary Conviction Appeal Court is heard.
Provincial Court The Court at which all criminal charges begin and most criminal charges conclude. The Provincial Court hears the trials for all summary offences. It has the authority to hear all criminal offences except the most serious. If you are charged with an indictable offence other than murder you may choose to have your trial in Provincial Court.
The Record The general term for all of the information that was before the trial court. This includes the certified transcript of the audio recording, all exhibits and written arguments provided to the trial judge. The Crown lawyer will obtain the audio recording and transcript if you are incarcerated.
Respondent The person who is responding to an appeal who usually does not want the lower court decision overturned. In your criminal appeal the Respondent will be the Federal Crown, Provincial Crown, or Municipal Crown.
Summary Conviction A judge of the Nova Scotia Supreme Court who is reviewing a Appeal Court decision regarding a summary offence.
Summary Offences Less serious offences, most of which are in the Criminal Code, the Controlled Drugs and Substances Act, or are Provincial Offences. A judge of the Supreme Court hears appeals of summary conviction verdicts. The Nova Scotia Court of Appeal hears appeals of Supreme Court judge’s decisions on summary conviction appeals.
Telechambers A hearing of the court dealing with brief matters such as setting dates. It is held by telephone with the recording equipment turned on. Page | 3
2. Starting an appeal and the importance of following it through
An appeal is not a new trial. An appeal is a review of the record to determine if the trial judge misapplied the law, misunderstood the evidence, or both.
By filing a Notice of Appeal you take the first step to having a higher court review the trial court’s decision, but there are many more steps you must take. You must follow an appeal through to its conclusion before the higher court can change the lower court’s ruling.
It is the Appellant’s responsibility to move the appeal along by filing the required documents on time and in the proper format. If you do not do this your appeal can be dismissed.
What is the difference between the Notice of Appeal and a ground of appeal? The Notice of Appeal is the document that starts the appeal process. Its main purpose is to tell the other participants and the appeal court what you say the judge did wrong, and to tell them what you want the appeal court to do to fix that wrong. Much of the Notice of Appeal sets out particulars of the trial such as dates, the name of the trial judge, and the names of the parties involved in the trial. It also lays out the ground or grounds of appeal. Your personal contact information must also be included.
A ground of appeal is set out in the Notice of Appeal document. It is a one sentence summary of why you believe your conviction or sentence should be overturned by an appeal court.
There can be more than one ground of appeal. If you believe the trial judge made one error, you have one ground of appeal. If you believe the trial judge made three errors, you have three grounds of appeal, and so on.
A ground of appeal could be an error of law, a misapprehension (or misunderstanding) of the facts, or both an error of law and misapprehension of facts. These errors can take place at any point in the proceedings, including pre- trial motions, mid-trial motions, the decision on whether you are found guilty or not guilty, or sentencing.
If you are appealing a sentence, you must apply for leave to appeal sentence. “Applying for leave” is another way of saying asking for permission to appeal. Practically speaking, the court will hear the application for leave and the sentence appeal at the same time.
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Appealing a Jury Decision In jury trials, the trial judge’s instructions to the jury on the law may be reviewed by the Court of Appeal. The jury made their decisions in secret about what facts were proven, so there are no grounds to appeal the process by which a jury decided the facts. However, the Criminal Code does allow the Court of Appeal to determine if a verdict is unreasonable or not supported by the evidence.
What is NOT a ground of appeal? The nature of our criminal justice system usually means that one of the parties at trial did not get what he or she wanted. People appeal convictions and sentences because they are unhappy with what happened at their trial or sentencing. Being unhappy with an outcome, however, is not a ground of appeal.
Perhaps the trial judge found you guilty even though you said you were innocent. The trial judge may have believed a witness you did not believe. If you testified, the trial judge may not have believed you.
A trial judge’s job is to hear the witnesses, apply the law, and if possible make findings of fact. Trial judges have the benefit of seeing and hearing witnesses in the flesh which gives them a much better opportunity to assess whether what a witness says is reliable and trustworthy. Appeal judges read the transcript of what the witnesses said.
An appeal judge must respect a trial judge’s finding of fact, even if the appeal judge might have concluded the facts were different.
Simply put, saying “I can’t believe the trial judge believed that liar” is a not a ground of appeal.
Can witnesses testify at an appeal? Most appeals will not have witnesses testify.
Witness testimony is the cornerstone of a criminal trial. However, an appeal is very different from a trial. Unlike a trial, an appeal is a review of information that the trial judge heard and the decisions the judge made based on that information.
However, the Criminal Code recognizes that there are times when witnesses must testify at an appeal. Generally, witnesses that could have testified at trial will not be heard on appeal. A potential witness must be relevant and bear upon a potentially decisive appeal issue. The witness must also be reasonably capable of belief and, if believed, could be capable of affecting the result of the trial when taken with other evidence at trial.
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I think my lawyer is to blame for my conviction. Is that a ground of appeal? Probably not. Lawyers are highly trained and are regulated by the Nova Scotia Barristers’ Society. There is a strong presumption that your trial lawyer was competent, exercised sound professional judgment, and your trial was fair.
Even so, appeal courts recognize that there are times when a lawyer’s performance at trial can be inadequate to the point there was a miscarriage of justice. As the Appellant you must show that your lawyer’s performance at trial fell below the standard of a reasonably competent lawyer and as a result of the lawyer’s performance, a miscarriage of justice occurred.
Lawyers are officers of the court and have a professional obligation not to advance frivolous arguments or call witnesses to give testimony which is irrelevant or not admissible.
If you wish to advance this ground of appeal, you must prove your trial lawyer’s actions or inaction contributed to your conviction. Put another way, you must prove that if your lawyer had done or not done specific actions you would have either been found not guilty or have had a lighter sentence.
3. When should I file my appeal?
Once you have been sentenced, you may appeal:
1. Conviction alone;
2. Sentence alone;
3. Both conviction and sentence
The Notice of Appeal must be filed 25 days after sentence is passed . This does not include the day of sentencing, a Saturday, Sunday or holiday on which the Prothonotary’s office is closed. It is important that you file your Notice on time – do not miss the deadline.
As a general rule, there is no benefit to filing your appeal before you are sentenced. The appeal court will not hear your appeal until you have been sentenced. Also, if you decide to appeal your sentence you will have to apply to amend your Notice of Appeal once you have been sentenced.
Although there is no benefit to filing your Notice of Appeal before you are sentenced, it would help to begin the process of gathering materials (such as a transcript) you will need to advance your appeal.
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4. Appeal to the Supreme Court or the Court of Appeal?
If you wish to appeal a conviction or sentence for an indictable offence, you must appeal to the Nova Scotia Court of Appeal. It hears appeals of indictable offences and appeals from Summary Conviction Appeal Courts. The Nova Scotia Court of Appeal sits in Halifax. This means that the administration office, the judges’ offices, and the courtroom in which appeals are heard are in Halifax.
An appeal is started in the Nova Scotia Court of Appeal by filing a Notice of Appeal with the Registrar of the Court of Appeal at 1815 Upper Water Street in Halifax.
If you are appealing a summary conviction, you must file your Notice of Appeal in the appropriate Supreme Court which is located in the same district of the court which heard your trial. If your trial or sentencing took place in Provincial Court within a County that does not have a Supreme Court, your appeal will have to take place in a different county. Please note that in some centres the administration office is in a separate building than the actual courtroom where your appeal will be held.
If your trial was in: Your appeal will be in Supreme Court at: Amherst Administration: 16 Church Street, Amherst; Courtroom: 54 Victoria Street E, Amherst Annapolis Royal 119 Queen Street, Digby Antigonish 11 James Street, Antigonish Arichat 15 Kennedy Street, Port Hawkesbury Bridgewater 141 High Street, Bridgewater Dartmouth 1815 Upper Water Street, Halifax Digby 119 Queen Street, Digby Eskasoni 136 Charlotte Street, Sydney Halifax 1815 Upper Water Street, Halifax Ingonish 136 Charlotte Street, Sydney Kentville 87 Cornwallis Street, Kentville New Glasgow 69 Water Street, Pictou Pictou 69 Water Street, Pictou Port Hawkesbury 15 Kennedy Street, Port Hawkesbury Shelburne 164 Main Street, Yarmouth Shubenacadie 1 Church Street, Truro Sydney 136 Charlotte Street, Sydney Truro 1 Church Street, Truro Windsor Administration: 87 Cornwallis Street, Kentville; Courtroom: 240 King Street, Windsor Yarmouth 164 Main Street, Yarmouth Page | 7
5. What do I do once I have filed a notice of appeal?
As the Appellant, it is your responsibility to move your appeal forward. This means you must:
1. Have the appeal placed on either the telechambers or chambers docket to set dates for the hearing and filing deadlines.
2. File your appeal book on time and in the correct format.
3. File your factum on time and in the correct format.
4. Arrange for the service of documents whenever this is required, and be prepared to prove that service of documents was done.
5. Appear for your hearing on time and prepared.
Legal Representation After your Notice of Appeal has been filed, if you are an unrepresented prisoner, you will be contacted by court staff and asked to participate in a phone call with a judge of the court (“telechambers” or a “chambers teleconference”). You will then be asked whether or not you wish to have a lawyer and, if you do, about what steps you have taken with Legal Aid and otherwise to obtain a lawyer. If you wish to have a lawyer but Legal Aid will not represent you in the appeal, court staff will provide you with an information package, explaining how you may apply to the court to have a lawyer appointed.
Preparing, formatting and filing the appeal book The appeal book is not just what you want the Court of Appeal to read. It contains everything that the trial judge you are appealing from considered, whether you think it helps or hurts your case. An appellant and respondent may AGREE to limit what goes in the appeal book, but one of them does not decide alone. If you are incarcerated, the Crown will prepare the appeal book.
The appeal book, therefore, must contain all of the following documents, in two separate booklets;
Appeal Book Part 1 - Documents
1. A table of contents referring to each document and the page number at which it begins;
2. A copy of the Notice of Appeal;
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3. A copy of the Information if the trial was held in Provincial Court or the Information and the Indictment if the trial was in held in Supreme Court;
4. A copy of the decision under appeal signed by the judge who issued it;
5. A reference sheet containing the heading of the proceeding under appeal, the court or registry number, the name of the judge who made the judgment, the date or dates of the trial, and date of judgment
Appeal Book Part 2 – Evidence and Related Materials An index of witnesses which includes the name of the witnesses, the party who called the witness, and page references to where in the appeal book direct examination, cross examination, and re-direct examination begins (this is usually prepared by the transcriptionist);
1. A list of all Exhibits;
2. A copy of the transcript of everything said in the course of the trial;
3. A copy of each documentary exhibit;
4. If a jury conviction is under appeal, a copy of the charge (instructions) to the jury certified by the trial judge to be accurate;
If you are appealing sentence, you do not need to include the trial transcript or exhibits entered at trial, but you do need to include the transcript of the sentencing and any exhibits entered at sentencing. You must also include:
1. The presentence report that was before the sentencing judge;
2. A copy of your criminal record, if you have one, that was before the sentencing judge;
3. A copy of each order related to the sentence. This could be a fine order, probation order, conditional sentence order, order for the taking of bodily substance (DNA), firearms prohibition order, or the warrant of committal if you were sentenced to jail
Getting a transcript The most significant task for preparing an appeal book is obtaining a transcript of the trial in the lower court. The transcript must be signed and certified by a certified court reporter. In order to get a transcript you must get the audio recordings and court log from the trial court and provide them to a professional court reporter for transcription. Page | 9
Court reporters are private businesses. You must pay for the preparation of the transcript. You may be charged $3.25-$4.25 per page of transcription. There are probably between 50-60 pages of transcription for each hour spent in court. If you wish to appeal a “one day” hearing, the transcript may cost you $1,000. The longer the hearing, the higher the cost.
Getting documents from the trial court files When you file your notice of appeal, court staff will arrange for the court file to be moved from the trial court to the appeal court. This means you will need to contact the appeal court to arrange a time to make photocopies of the documents needed for the appeal book.
Be sure to include both sides of double sided documents.
Getting a date for your appeal hearing After you file your Notice of Appeal, the Registrar will send you a letter advising you of the deadline for setting the appeal down and contact information for arranging a chambers or telechambers date.
Once you have contacted the court for an available chambers or telechambers date you must file with the court and serve on the opposing party:
1. Notice of Motion for Date and Directions; and
2. Certificate Respecting Filing the Appeal Book or the completed appeal book
I have a filing deadline for my factum and a date for the hearing. What is the acceptable format for filing my factum? Filing your documents in the proper format is very important. Although some of formatting requirements may seem picky, they are designed to enable the judges who hear your appeal to navigate the volumes of paper easily.
A factum must be:
1. No more than 40 pages long, not including the index;
2. Bound with a cerlox spine;
3. Double spaced;
4. In no less than 12 point font;
5. Be organized into the following six parts: i. Concise Overview of the Appeal
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ii. Concise Statement of Facts;
iii. List of Issues;
iv. Standard of Review;
v. Argument;
vi. Order or Relief Sought;
Appendix A –List of Citations referred to in Part V (Argument)
Appendix B –Statutes and Regulations including the text of relevant statutory provisions.
6. Printed on single sided paper;
7. Parts I to VI must be to the left of the “spine” or binding coil (sometimes called by a brand-name, such as “cerlox”) to allow the right side of the spine to be used for notes;
8. If you are the Appellant the cover page and back page of the factum must be yellow or buff coloured. If you are the Respondent the cover page and back page of the factum must be blue or green.
Why do I have to make seven copies of all of the documents? Five copies are for the court, one copy is for you, one copy is for the Respondent.
If there is more than one appellant or respondent, you will need to provide enough copies for all parties. In the unusual event five judges sit on the panel, you will need to provide an extra two copies for the extra two judges.
6. What will happen at my appeal hearing?
The appeal hearing is when you and the Respondent will make your oral arguments to three judges of the Court of Appeal or a single judge of the Supreme Court. It will also provide the judges an opportunity to ask questions about the positions of the Appellant and Respondent.
Virtually all appeals in the Nova Scotia Court of Appeal will be heard by a panel of three judges; however in rare circumstances, five judges will hear an appeal.
In most cases, you will have to wait a few days or a few weeks before you receive the decision of the Court of Appeal.
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7. What will happen to my sentence while my appeal is pending?
Once you have been found guilty of a crime, the judge who found you guilty must pass sentence before the appeal court will consider overturning the conviction. You must apply to the appeal court if you wish to put your obligations under your sentence on hold pending your appeal. If you do not take steps to do this, you could be in breach of your sentence and subject to further criminal sanction.
Filing a Notice of Appeal does not automatically suspend a sentence. You must apply to the appeal court and prove that it is in the interest of justice to suspend the sentence until the appeal has been determined. Different types of sentences require different approaches to suspend them pending appeal.
Fines, forfeited property, restitution orders, victim fine surcharges, probation orders and conditional sentence orders, and driving prohibitions. Section 683(5) of the Criminal Code gives the Court of Appeal the authority to suspend an obligation to pay a fine, forfeiture or disposition of forfeited property, a restitution order, victim fine surcharge, probation order, or conditional sentence order.
Jail Sentence A jail sentence can be suspended by the Court of Appeal granting bail pending appeal.
If you are in jail you must satisfy the appeal court that your appeal is not frivolous and your detention is not necessary in the public interest. You will however have to surrender yourself into custody the day before the appeal is released.
8. Can I withdraw an appeal?
Yes. If you decide you do not wish to pursue an appeal any longer you can file a one page form abandoning the appeal. Please note you can only withdraw an appeal you started. If the Crown or a co-accused appealed, only the Crown or the co-accused can withdraw their appeals.
This manual was prepared and published by the Nova Scotia Court of Appeal Liaison Committee, with contributions from the Bar by Luke Craggs and Jennifer MacLellan