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Ineffective assistance of counsel as a contributing cause of wrongful convictions

Research articles : 
April 1, 2006
 
Summary
This article reviews cases in which ineffective assistance of counsel has contributed to wrongful convictions in Canada (and the United States). The approach taken by appeal courts in reviewing claims of ineffective assistance of counsel is also considered. Finally, recommendations are made as to how the risk of ineffective assistance of counsel contributing to wrongful convictions may be mitigated.
 
Ineffective representation by defence counsel is a significant cause of wrongful convictions. A recent study in the United States found that in 21% of cases in which a reversal of conviction occurred, ineffective assistance of defence counsel was the primary error.[1] Commentators in Canada have identified ineffectiveness of counsel as a factor that contributes to wrongful convictions[2] and appellate courts and commissions of inquiry have also commented on ineffective assistance of counsel as a cause of wrongful convictions.
 
It is clear that effective representation is a key requirement for preventing wrongful convictions:
 
Providing qualified counsel is perhaps the most important safeguard against wrongful conviction, sentencing, and execution of capital defendants.[3]
 
The role of defence counsel is of great importance to the administration of justice and to our democratic society.[4]
 
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.[5]
 
Relatively little research has been done in Canada on the role of defence counsel in wrongful convictions. A 2004 Canadian study indicated that it is not clear to what extent ineffective assistance of counsel contributes to wrongful convictions in Canada, and that none of the Canadian Commissions of inquiry into wrongful convictions have highlighted it as an issue.[6] While this is not entirely correct,[7] certainly there is very little Canadian commentary on the role of defence counsel in causing wrongful convictions.
 
The thesis of this article is that ineffective defence work plays a significant role in wrongful convictions, and that appellate courts are an inappropriate forum for correcting injustices caused by ineffective assistance of counsel. Proactive measures which aim to eliminate ineffective assistance of counsel should be used instead of relying on appellate courts to catch and correct errors resulting from poor defence work. It is suggested that ethics codes governing defence counsel be revised as part of a strategy that aims to prevent wrongful convictions through education.
 
Classification of the term “wrongful conviction” is a delicate issue. “[N]ot every conviction that is set aside is wrongful”.[8] Adopting the view of the Honourable T. Alexander Hickman Q.C. that a conviction being overturned during the regular appeal process cannot be considered a failure of the justice system,[9] the term “wrongful conviction” is used in this article to describe cases in which convictions at trial were upheld through the regular appeals process, and only later found to be in error.
 
However, it is instructive to review appellate cases considering claims of ineffective assistance of counsel because a study of the error catching mechanism provides insight into the types of errors that will be caught, and the ones that may not.  A review of regular appeal cases also gives an indication of the nature and degree of bad defence lawyering occurring in Canadian courts.
 
This article examines the role of ineffective defence work in wrongful convictions four stages.
  1. Assessment of ineffective assistance of counsel generally.
  2. A review of wrongful convictions in Canada and the United States.
  3. Assessment of the effectiveness of appellate courts in reviewing inadequate defence work.
  4. Consideration of measures to mitigate ineffective defence work as a cause of wrongful convictions. 
 
The purpose of this article is not to review the issue of ineffective assistance of counsel generally, but is to examine how such ineffectiveness contributes to wrongful convictions. This section of the article merely identifies ways in which counsel may be ineffective and subsequent sections review how such failures have led to wrongful convictions.
 
Justice Casey Hill of the Ontario Superior Court of Justice has reviewed ineffective assistance of counsel in the Canadian context.[10]  In addition to discussing the role of trial judges in mitigating ineffective assistance of counsel, Justice Hill identified a number of ways in which representation may be ineffective. The following list of potential defence counsel failures draws partly from that paper.  
 
Preparation performance:
o       Inadequate preparation with the client: failure to meet the client, investigate the client’s version of events, prepare the client to testify (if applicable).
o       Inadequate investigation: failure to discover or interview witnesses, retain experts, investigate Crown theories, assess disclosure, order preliminary inquiry transcripts, research medical records.
o       Inadequate trial preparation: failure to consider defence strategies, research relevant case law, prepare witnesses.
 
In court performance:
o       Failure to apply for severance of defendants or charges.
o       Representing multiple defendants with conflicting interests.
o       Inadequate performance during jury selection.
o       Ineffective opening and closing submissions.
o       Erroneous tactical decision to not lead particular evidence (including sometimes the testimony of the accused or other witnesses, including experts).
o       Failure to challenge inadmissible evidence (including identification and eyewitness evidence).
o       Introduction of prejudicial evidence through inept cross examination.
o       Ineffective examination of Crown witnesses (including failure to detect prior inconsistent statements).
o       Failure to seek adjournments when appropriate.
o       Ineffective (or no) submissions on the charge to the jury.
 
This list is not exhaustive. Other more subtle aspects of defence counsel’s performance may also be ineffective. For example, abrasive cross examination may contribute to a wrongful conviction if such approach alienates the jury and inclines them to rule against the accused partly because of defence counsel’s offensive trial tactics. This was alleged to be a factor in the wrongful conviction of Guy Paul Morin.[11] However, the commission in that case found that any negative effects of advocacy style were not reflective of the type of systemic issues the commission was seeking to identify and so the commission made no findings on the significance of that factor as a cause of wrongful convictions. [12] Nevertheless, that advocacy style was highlighted as an issue serves to confirm that almost every aspect of defence counsel’s performance plays a role in determining the result at trial.
 
In 1986 a commission of inquiry was held to investigate the wrongful conviction of Donald Marshall, Jr.[13] Marshall was wrongfully imprisoned for the murder of Sandy Seale which occurred in Sydney, Nova Scotia on May 28, 1971.
 
Poor defence work, failure to investigate in particular, was found to be a significant cause contributing to this wrongful conviction:
 
Defence counsel failed to provide adequate professional investigation, interview Crown Witnesses or seek disclosure of the Crown case…the defence counsel were aware of the prior statements of [three witnesses], but did not request them.[14]
 
The commission found that there were oversights by defence counsel in not interviewing various Crown witnesses, and in ignoring clear leads pointing to inconsistencies in the Crown’s case:[15]
 
Had defence counsel taken even the most rudimentary steps an accused should be entitled to expect from his or her counsel, it is difficult to believe Marshall would have been convicted.[16]
 
Errors were also made on appeal. The commission found that the failure of defence counsel to put key errors of law before the Court of Appeal was a “serious breach of the standard of professional conduct expected and required of defence counsel”.[17]
 
In many cases ineffective assistance of counsel is blamed on inexperience of counsel and lack of resources. Such was not the case for Marshall’s counsel. The lead defence lawyer was described as “a skilled criminal defence lawyer”. His assistant “had a long and distinguished career at the Bar”.[18] Furthermore, the defence team was retained by the Department of Indian Affairs and counsel admitted that the defence was “not restricted or hampered by way of money”.[19] Defence counsel candidly admitted under examination at the commission of inquiry that the defence had not given any consideration to retaining an investigator to assist in the defence.[20]
 
Evidence presented at the inquiry indicated that the defence team believed that Marshall was guilty and the commission’s report suggested that this may have contributed to the apathetic investigation done by the defence.[21]
 
In 1964 Rejean Hinse was convicted of armed robbery and subsequently served a 15 year sentence. Thirty years after the conviction the Supreme Court of Canada entered an acquittal.[22]
 
The change in circumstances that led to the acquittal included the recantation of testimony by a police officer and admissions by two of the five participants that they were involved, but that Hinse was not. [23]
 
Hinse sought an acquittal to clear his name despite having served his full sentence. Right to the end, Hinse blamed his trial lawyer for not calling other suspects as witnesses in his trial, and argued that such failure was a cause of his wrongful conviction. Neither the Supreme Court of Canada nor the Quebec Court of Appeal commented explicitly on the adequacy of Hinse’s representation. The Quebec Court of Appeal did say that the other suspects could not have testified without doing detriment to their own cases.[24] However, the Court of Appeal had earlier pointed out that three of the individuals the new evidence implicated were never even charged with the robbery.[25] Clearly these individuals could have been called as witnesses. 
 
The Court of Appeal also noted that one of the participants in the robbery, tried around the same time but separately to Hinse, was represented by the same counsel as Hinse.[26] To effectively represent Hinse, his counsel should not have acted for another accused with conflicting interests. This conflict of interest, and the failure to pursue calling other witnesses, appears to have contributed to Hinse’s wrongful conviction.
 
Wilbert Coffin was hanged in 1956 for the Quebec murder of three American bear hunters. Although his innocence has not been conclusively proven, many now believe that he did not commit the crime.[27]
 
There was a lot of public pressure to obtain a conviction for the murders and police and prosecutorial misconduct has since been established.[28]
 
Coffin was convicted on entirely circumstantial evidence and many questions have been asked about the apparently poor performance of Coffin’s defence counsel.[29] Defence counsel failed to challenge speculative evidence, failed to expose inconsistencies in the Crown’s theory of the case, failed to investigate alternative explanations to circumstantial evidence and refused to allow Coffin to testify in his own defence.
 
Another questionable aspect of counsel’s conduct was that after initially informing the Court that over fifty witnesses would testify for the defence, counsel announced that the defence would not be calling any witnesses at all. The jury, who had been expecting a substantial defence, were left to consider the circumstantial case presented by the Crown and convicted the accused.
 
R v. Delisle: failure to investigate, disbelief in the accused’s version of events.
In R. v. Delisle[30] the accused was convicted of assault causing bodily harm and sentenced to four years imprisonment. This was not a case of “wrongful conviction” as defined in the introduction, because a new trial was ordered on appeal directly after the conviction. But this case is worth reviewing because it provides insight into the type of inadequate defence work that contributes to wrongful convictions.
 
In this case the accused had maintained his innocence to his lawyer throughout, had indicated that he wanted to testify, and had identified a third party as one of the perpetrators. Defence counsel did not believe the accused’s story, did not interview the third party and refused to allow the accused to testify. Following the verdict of guilty, the third party admitted to the accused’s lawyer that he, and not the accused, was one of the perpetrators. The third party provided affidavit evidence which was tendered on appeal.
 
The Quebec Court of Appeal held that a new trial be ordered and said that the accused’s lawyer committed a significant error in preventing the accused from testifying and in not attempting to meet the third party identified by the accused as the perpetrator.
 
Had the third party in this case not come forward to provide the affidavit evidence, an event beyond the control of the judicial system, it is unlikely that a new trial would have been ordered and this would have been a case of wrongful conviction with the accused being sentenced to four years in prison.
 
The wrongful conviction of Jimmy Ray Bromgard in the State of Montana was caused by a fraudulent expert witness and wholly incompetent defence work. Bromgard was convicted of the rape of an eight-year-old girl and spent fifteen and a half years in prison before being exonerated by DNA in 2002.
 
The victim picked Bromgard out of a police line up, but said she was only 60-65 % sure that he was actually the man who raped her. At trial, the victim still expressed doubts, but pointed to Bromgard to establish in-court identification.
 
Bromgard's assigned counsel:[31]
o       never objected to the in-court identification;
o       never filed a motion to suppress the line-up identification despite the victims lack of certainty;
o       failed to present expert testimony to contradict the fraudulent “junk science” testimony of the prosecution’s expert;
o       failed to investigate alternative explanations for the other circumstantial evidence;
o       did not make an opening statement at all;
o       did not prepare a closing statement, and
o       failed to file an appeal brief after Bromgard's conviction.
 
The failure to file an appeal brief prevented an appeal on the conviction from proceeding
 
This case illustrates the extreme difficulty of seeking redress for ineffective assistance of counsel. Using a standard form document available to inmates, Bromgard filed a petition for post conviction relief while serving his sentence.[32] Bromgard made seven claims in the petition, one of which related to the failure of his counsel to file an appeal brief. Six of the claims were dismissed, but the Court gave effect to the claim of ineffective assistance of counsel in failing to file the appeal brief and allowed Bromgard to file an appeal out of time. Bromgard’s appeal was dismissed.[33] Claims of ineffective assistance of counsel, if made on appeal, were not addressed in the appeal judgment.[34]
 
Bromgard then filed a second petition for post conviction relief, again claiming ineffective assistance of counsel, based partly on the following: shortly after the jury delivered its verdict, a newspaper article revealed that the jury had conducted an experiment in the deliberation room. The experiment was done by the jury to determine whether they believed that there was enough light in the victim’s bedroom at the time of the rape for the victim to tell whether the perpetrator was wearing brown pants or jeans. This was a contentious issue. Bromgard argued in his second petition that the jury was not permitted to decide the case on evidence not on the record, and that his counsel was ineffective in failing to raise this as a ground of appeal.
 
In deciding whether to give effect to Bromgard’s second petition for post conviction relief, the Court considered the fill-in-the-blank form that Bromgard had completed while in prison without the assistance of counsel.[35] The fill-in-the-blank form stated that all claims for relief had to be stated on that form, and that other claims were waived upon submission of the petition.[36] The Court held that the post-conviction relief procedure was civil in nature and that there was no constitutional requirement for assistance of counsel. The Court also found that Bromgard’s lack of legal knowledge did not excuse his failure to include the issue of jury misconduct in the original petition he submitted while in prison. Accordingly, the Court refused to consider the claim of ineffective assistance of counsel.[37] As a result, Bromgard continued, for another 5 years, to suffer the consequences of his counsel’s ineffectiveness until he was finally exonerated by DNA.
 
After a trial in Seattle, Benjamin Harris was convicted of the murder of Jimmie Turner. Following the conviction, Harris continuously sought direct and collateral relief in Washington State Courts, but was unsuccessful.[38]  In 1995, twelve years after the conviction, the United States Court of Appeals for the Ninth Circuit affirmed the grant of habeas corpus relief from his conviction for aggravated first degree murder and death sentence. The Court found that the cumulative effect of trial counsel’s deficiencies may have affected the result at trial.[39]
 
Some of the key errors of defence counsel included the following:[40]
o       Interviewing only three witnesses after being supplied with the names of 32 persons with knowledge of the murder (and Harris told him of others in addition to the 32).
o       Consulting with Harris for a total of one hour and 48 minutes before trial (as evidenced by the billing record).
o       Failing to obtain independent ballistic or forensic evidence.
o       Failing to have an independent expert mental examination done before trial (after being granted a motion for such examination). 
o       Failing to give the mental examination evaluating team at the hospital letters Harris had written that indicated Harris was delusional (defence counsel apparently believed that Harris was competent).
o       Failing to seek out Harris’s educational and medical records.
o       Failure to challenge the admissibility of Harris’s statements made to the police. 
o       Delegation of conduct of the voir dire involving prospective jurors to an inexperienced and unprepared associate.
o       Failure to object to the admission of Harris’s prior convictions.
o       Failure to propose or object to any jury instructions.
o       Failure to pursue meritorious issues in appellate proceedings.
o       Failure to correct inaccuracies in the trial court’s report to the appeal court.
 
It is startling that it took 12 years to correct this wrongful conviction that was based on such poor defence work that on final appeal counsel for the State did not even contest eight of the major claims of ineffective defence work.
 
Other cases of wrongful conviction in the United States abound, many of them caused in whole or in part by ineffective assistance of counsel.
 
Two American books on wrongful convictions have chapters dedicated to the impact of ineffective assistance of counsel.[41] The cases discussed in these books highlight the following aspects of ineffective defence work.
o       Failure to investigate driven by disbelief in the accused’s version of events or uncertainty (because of inexperience) as to how do deal with particular information or leads.
o       Failure to call witnesses (often as a result of failure to investigate).
o       Encouraging clients to accept guilty pleas, and then presenting an apathetic defence when they fail to do so.
o       Failure to seek independent forensic testing and opinions.
o       Failure to effectively participate in jury selection.
o       Failure to challenge mistaken identification and eyewitness perjury.
o       Under-funding of public defender programs and their overwhelming case load.
o       Lack of detailed performance standards for defence counsel coupled with an absence of disciplinary sanctions for incompetent performance.
o       Lack of continuing legal education.
 
Since American cases of wrongful conviction have been mentioned in this article on wrongful convictions in Canada, a brief comment on the similarity of the criminal justice systems in the two countries is appropriate. Many factors would be considered in a comprehensive comparison of defence practice in the different jurisdictions including law degree accreditation, bar exam standards, regulation mechanisms, and continuing legal education requirements. Such review is beyond the scope of this article, but the following 3 issues seem to be key considerations in the two jurisdictions.
 
Ineffective assistance of counsel in the United States is partly blamed on under funding of public defenders.[42] Similar concerns have been expressed in relation to Canadian legal aid systems:
o       “In some places, staff legal aid lawyers are overworked to the point that both their professional obligations and their personal well-being are compromised”.[43]
o       “Even if the statistics show that the accused is assisted by duty counsel, it is important to note that in most courts duty counsel “is run off its feet”. None of the courts in the study had a luxury of resources available for duty counsel”.[44]
o       “[Legal aid staff lawyers] do not have enough time – sometimes only “moments” to prepare a case”.[45]
o       “Legal aid lawyers are overworked”.[46]
 
A review and comment on the adequacy of the legal aid system in Canada is beyond the scope of this article. The foregoing is mentioned merely to suggest that Canada may suffer from some of the under-funded public defender problems which have been found to contribute to ineffective defence work leading to wrongful convictions in the United States.
 
As discussed below, the legal test in Canada for reviewing claims of ineffective assistance of counsel is based on the test applied in the United States. If appellate courts in the United States are failing to detect wrongful convictions caused by ineffective assistance of counsel, it is reasonable to infer that similar errors are going undetected by Canadian appeal courts applying the same test.
 
The ethical codes regulating lawyers in the United States appear to be as least as comprehensive as the Canadian equivalents. As discussed below, this article recommends that Canada should in fact incorporate some of the provisions in the American Bar Association Code of Ethics into the Canadian context as a means of educating defence lawyers on the appropriate standards of conduct.
 
The foregoing indicates that failure to investigate by defence counsel is a key cause of wrongful convictions. Such failure may be driven by a lack of resources (time and / or money) or by defence counsel disbelieving the accused’s version of events. Failure to investigate results in exculpatory evidence, including witness testimony, not being discovered and junk science not being challenged.
 
The attitude of defence counsel seems to be a major determinant of the quality of representation provided at trial. The Marshall Inquiry found that the defence team believed that Marshall was guilty and the commission found that such attitude likely contributed to the apathetic investigation done by the defence.[47]
 
Studies in England indicate that many lawyers have negative attitudes about their role as defence counsel and consequently fail to investigate, focussing instead on negotiating a guilty plea.[48] Similarly, studies in the United States have commented on a presumption, by defence counsel, of the defendant’s guilt and a prevailing inclination towards guilty pleas.[49]
 
These conclusions are borne out by the feedback received by the innocence project in the United States:
When the innocence project contacts lawyers to let them know that their old cases have been reopened and the client exonerated, many lawyers express shock. The defence attorney who presumes a client is guilty may be right a majority of the time. But that presumption makes him or her useless when an innocent person comes along.[50]
 
The foregoing indicates that apathetic defence work resulting from defence counsel believing their clients are guilty is a key cause of ineffective representation leading to wrongful convictions.
 
Is appellate review an appropriate mechanism for dealing with the wrongful conviction problem? In order to assess the effectiveness of appellate courts in detecting wrongful convictions caused by ineffective assistance of counsel, it is instructive to review the approach appellate courts take to such claims.
 
Two scenarios may arise when an ineffective assistance of counsel claim is made on appeal:[51]
In the first scenario the accused seeks to admit new evidence on appeal, but does not ask the court to consider that evidence in reviewing the verdict at trial. Instead, the accused tenders the evidence only as proof of the ineffective assistance of counsel at trial as a basis for ordering a new trial.
 
In the second scenario the accused seeks to present new evidence on appeal for the purpose of reviewing the substantive result at trial. The accused argues that ineffective assistance of trial counsel is the reason the evidence was not presented at trial, and that had the evidence been presented, the result would have been different.
 
In the first situation, the accused essentially seeks procedural relief for breach of procedural fairness.  This is done on the basis that a conviction without due process is a miscarriage of justice regardless of guilt or innocence.   In this scenario the appellate court must apply a test for determining whether defence counsel at trial was so ineffective that the accused did not receive a fair trial. The traditional tests for admitting fresh evidence on appeal are not considered in this scenario. This was the approach followed in R. v. McKellar.[52] This first approach may be used when the fresh evidence is of such nature that it cannot be evaluated on appeal e.g. the testimony of the accused or another witness not being led at trial. Where evidence is capable of review on appeal, appellate courts are inclined to review it and decide whether it may have altered the result at trial. This essentially leads to the second scenario.
 
In the second scenario, the appellate court applies a test for the admission of new evidence on appeal. When a claim of ineffective assistance is being made, the test for ineffectiveness of counsel is incorporated into the test for the admission of new evidence. This was the procedure followed by the Supreme Court of Canada in R. v. B. (G.D.).[53]
 
The right to effective assistance of counsel is an element of the right to a fair trial and the right to make full answer and defence.[54] These rights have their origins “in the common law, in s. 650(3) of the Criminal Code and in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms”.[55]The right to effective assistance of counsel is now considered a principle of fundamental justice.[56]
 
The Supreme Court of Canada has confirmed that the test applied in Canada for assessing ineffectiveness of counsel is the one from the United States case of Strickland v. Washington.[57] The two part test has a performance component and a prejudice component: “it must be established, first, that counsel's acts or omissions constituted incompetence and second, that a miscarriage of justice resulted”.[58] The accused must establish the allegation of incompetence on a balance of probabilities.[59]
 
Demonstrating the adversity courts have to reviewing the performance of defence counsel, the Court in R. v. B.(G.D.) held that “[i]f it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow”.[60]
 
Despite the fundamental right to effective counsel, appellate courts generally show deference to the decisions of trial counsel.
 
In R. v. B. (G.D.) defence counsel, against the wishes of the accused, made a tactical decision to not admit a tape recorded conversation into evidence. On appeal, the accused sought to enter the recording and argued that it would have changed the result at trial. The Supreme Court deferred to the tactical decision of the accused’s trial counsel and found that there had been no miscarriage of justice because the tape was not admitted.
 
Appellate deference to defence counsel’s decisions was also demonstrated in R. v. Strauss.[61] In that case the accused complained that his trial counsel failed to adequately investigate the statements of two potential defence witnesses whose written statements were then in the possession of counsel. The Court held that this failure to investigate was not determinative:
 
This is a case where counsel chose one strategy over another. I am unable to say that his performance was deficient or that there is a reasonable probability, if he had done what the appellant now proposes, the result would have been different.[62]
 
The accused’s appeal was dismissed.
 
In R. v. Dunbar[63] the British Columbia Court of Appeal acknowledged that because of deference to the decisions of trial counsel, claims of ineffective assistance of counsel seldom succeed:
 
[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.[64]
 
In R. v. Dunbar four appeals were heard jointly. All four accused had been represented by the same lawyer and each made claims of ineffective assistance of counsel. All four appeals were dismissed.
 
Courts have set a low standard for competence:
 
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 been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.[65]
 
The low standard for competence results in a heavy burden on the accused:
 
To establish that proposition, the appellant must show that trial counsel made errors so serious that he was not functioning as counsel.[66]
 
To emphasize the low standard appellate courts hold defence counsel to, the authors of Actual Innocence cynically remark that so long as counsel passes the mirror test, they will be found to be performing sufficiently under the Strickland test. The mirror test involves placing a mirror under the nose of defence counsel during trial; if the mirror fogs up, counsel is performing adequately.[67]
 
The Supreme Court of Canada has confirmed the disinclination of courts to review claims of incompetence by stating that it is not the role of appeal courts to regulate the proficiency of counsel:
 
[I]n the absence of a miscarriage of justice, the question of the competence of counsel is usually a matter of professional ethics and is not a question for the appellate courts to consider.[68]
 
The deferential approach of appeal courts to the judgment of defence counsel is driven by various policy factors including the desire for finality and order,[69] and the need to protect the integrity of the judicial system[70] and the lawyer client relationship.
 
In Strickland, where the Court found that the accused’s defence had not been prejudiced and so affirmed the death sentence, the Court commented on the policy factors counting against increased intervention by appellate courts in cases of defective defence work:
 
The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.[71]
 
Referring to Strickland, the Ontario Court of Appeal has said: 
 
This Court, following the lead of the Supreme Court of the United States, has taken a cautious approach to claims based on the alleged incompetence of trial counsel…  Such claims can be easily made.  It would be a rare case where, after conviction, some aspect of defence counsel's performance could not be subjected to legitimate criticism.  Convictions would be rendered all too ephemeral if they could be set aside upon the discovery of some deficiency in counsel's defence of an accused.  Appeals are not intended to be forensic autopsies of counsel's performance at trial.[72]
 
In order to regulate claims of ineffective assistance of counsel, the Ontario Court of Appeal has issued a practice directive for appellate counsel to follow when preparing arguments based on ineffective assistance of trial counsel.[73] The practice directive requires appellate counsel to carefully consider the factual basis for such claims and give the trial counsel reasonable opportunity to respond to the potential allegations before they are made in a public forum.
 
The British Columbia Court of Appeal has also issued a practice directive to regulate appeals based on ineffective assistance of counsel.[74] This practice directive is less comprehensive than the one issued by the Ontario Court of Appeal and only requires that the accused’s trial counsel be properly notified of the pending appeal.
 
In addition to the cases mentioned above, the following is a short selection of cases considering claims of ineffective assistance of counsel. These were not cases of “wrongful conviction” as defined in the introduction, but are mentioned to provide insight into appellate review of ineffective assistance of counsel claims.
 
In R. v. Joanisse[75] the defence led at trial was based on the assumption that the accused would testify. When it came time to testify, the accused, who was experiencing various personal difficulties, changed his mind and refused to testify. The Ontario Court of Appeal found that defence counsel failed to meet the standard of reasonable competence in failing to apply for an overnight adjournment in order to persuade the accused to testify. Although the Court found a reasonable probability that the accused would have been acquitted had the jury heard his version of events, it decided that there was only a possibility that the accused would have been persuaded to testify, and so dismissed the accused’s appeal.
 
In R. v. McKellar[76] a new trial was ordered on the basis of incompetence of defence counsel. The accused led a defence of alibi; he was at home with a number of friends. Defence counsel was aware that there were many other people with the accused at the time, and had their names, but failed to interview them. Defence counsel decided to call only one of the friends, confident that the witness would be believed. The accused was convicted. The Ontario Court of Appeal found that the failure of defence counsel to investigate witnesses prevented the presentation of evidence which might have affected the result at trial, and that such incompetence prevented the accused from having a fair trial.
 
The Court in R. v. McKeller was clear in pointing out that it was granting relief for the lack of a fair trial, and not considering what impact the evidence which was not led at trial would have had on the result:
 
I should make it clear that I am not considering the conduct of defence counsel as fresh evidence. It clearly does not meet the test of R. v. Palmer, [1980] 1 S.C.R. 758, 50 C.C.C. (2d) 193. It is, however, evidence of the incompetence of defence counsel.[77]
 
In other words, the Court in R. v. McKeller was dealing with scenario 1 described above.
 
The Strickland test to be applied when the procedural fairness of the trial is challenged on the basis of ineffective assistance of counsel can be summarised as follows:[78]
 
1.      The accused must show that counsel's conduct at trial resulted in prejudice by either compromising the reliability of the trial's result or causing procedural unfairness. (If the accused fails to establish this, the analysis is concluded at this stage).
2.      The accused must show that the conduct of counsel at trial fell outside the range of reasonable professional assistance.
3.      The accused must show that the prejudice proved in stage one was caused by the ineffectiveness of counsel proved in stage two.
 
To admit fresh evidence the accused need only show that the evidence is “relevant in the sense that it directly relates to the performance of counsel or the resulting prejudice to the appellant… [and that it complies] with the generally applicable rules of evidence”.[79]
 
A test for admitting new evidence on appeal was formulated in the case of R. v. Palmer[80], and has been consistently applied. The test is as follows:
 
1.      The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
2.      The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
3.      The evidence must be credible in the sense that it is reasonably capable of belief, and
4.      It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.[81]
 
It is apparent from stage one of the test that ordinarily an assessment of the performance of defence counsel is required in order to decide if the evidence should be admitted. The Supreme Court of Canada has admitted that this requirement does not apply as strictly in criminal cases as it does in civil cases, and “must yield where its rigid application might lead to a miscarriage of justice”.[82]
 
However, if the accused claims that the evidence was not admitted at trial due to ineffective assistance of counsel, the Strickland test, adopted by the Supreme Court of Canada in R. v. B. (G.D.) is applied and effectively replaces stage one of the Palmer test.
 
Stage two of the Strickland test (that a miscarriage of justice occurred) overlaps with stage four of the Palmer test (could the evidence have affected the trial result?). Furthermore, as explained above, appellate courts have a strong reluctance to apply stage one of the Strickland test (was counsel incompetent?). Therefore, the accused who wants to admit new evidence on appeal is effectively left with a three stage test:
 
1.         The evidence that was not admitted was relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial (essentially Palmer stage 2).
2.         The evidence must be credible in the sense that it is reasonably capable of belief (Palmer stage 3), and
3.         A miscarriage of justice occurred as a result of the evidence not being led i.e. the accused was deprived of a fair trial the right to make full answer and defence (Strickland stage 2).
 
This three stage test does not expressly consider the performance of defence counsel. This is because if the accused is able to prove that a miscarriage of justice occurred, no court will say that the result should stand because counsel was not wholly incompetent. Instead the appeal court will re-decide the case considering the new evidence, or order a new trial. However, courts will impliedly consider the performance of counsel in deciding in whether the conduct of counsel resulted in a miscarriage of justice.
 
The foregoing indicates that whether the accused claims a breach of procedural fairness owing to ineffective assistance of counsel (scenario 1), or that an error occurred because decisive evidence was not led at trial (scenario 2), appellate courts show deference to the performance of trial counsel. An accused who has received ineffective assistance has the difficult task of convincing the deferent appellate court that a miscarriage of justice occurred.
 
So should courts change the test applied when reviewing claims of ineffective assistance of counsel and be less deferent to counsel’s performance? The answer to this is probably that courts have been justified in maintaining a high standard for claims of ineffective assistance of counsel to prevent a flood of such claims.
 
The authors of Ineffective Assistance of Counsel[83] point out that after definition of the test for incompetence in Strickland and the successful claim for ineffective assistance of counsel in United States v. Cronic[84] handed down on the same day as Strickland, the number of reported ineffectiveness claims increased from approximately 700 in 1985 to over 1700 in 1992; a 250% increase in less than a decade.[85]
 
This confirms appellate court fears of opening the floodgates. Changing the standard of review appellate courts apply to claims of ineffective counsel may not be a feasible way to address poor defence work as a cause of wrongful convictions. Instead, rather than trying to detect such errors after they have occurred, measures should be implemented to prevent them in the first place.
 
The discussion above indicates that negative perceptions held by defence lawyers regarding the innocence of their clients is a factor that contributes to wrongful convictions. Such attitudes are not unexpected given that most of the clients defence lawyers deal with are guilty.
 
To prevent defence lawyers from becoming jaded, and to remind them of the importance of the role they play, defence lawyers should regularly attend continuing legal education seminars on the causes and effects of wrongful convictions. Such reminders will encourage faith in the explanations of accused persons and thorough investigation of all leads brought to the attention of defence counsel.  
 
A further measure to mitigate ineffective assistance of counsel should be revision of the codes of ethics governing defence lawyers.
 
Lawyers in Canada are self regulated and ethical duties are imposed primarily by the Law Society Codes of Conduct in the various provinces. The Canadian Bar Association is an organisation to which lawyers can voluntarily subscribe, and it also has a code of conduct. The codes, including the provincial codes, do not have the force of law but courts do consider the codes to provide an important statement of public policy and the codes serve as a guide in disciplinary proceedings.[86]
 
The Code of Professional Conduct of the Canadian Bar Association does not expressly direct lawyers to investigate all leads. Chapter II, which deals with competence and quality of service, merely urges the lawyer to act competently and serve the client in a “conscientious, diligent and efficient manner”. The commentary to Chapter II does not address the importance of investigations, and focuses more on the importance of having suitable experience before acting and of not overestimating one’s own abilities.
 
The commentary to Chapter III, Advising Clients, states that “the lawyer should investigate the matter in sufficient detail to be able to express an opinion rather than merely making comments with many qualifications”.[87]
 
The Code of Conduct of the Canadian Bar association does not expressly recognise the fact that lawyers are not supposed to judge their clients version of events and should investigate all leads. Furthermore, the Code of Conduct does not list the respective decision making responsibilities of defence counsel and the accused during the trial process e.g. who makes the decision as to whether the accused will testify. 
 
The Professional Conduct Handbook of the Law Society of British Columbia states that “a lawyer should obtain sufficient knowledge of the relevant facts and give adequate consideration to the applicable law before advising a client”.[88] The remainder of the Handbook does not appear to provide further guidance on the content of a lawyer’s duty to investigate leads diligently.
 
The Professional Conduct Handbook does not list the respective decision making responsibilities of defence counsel and the accused during the trial process.
 
The following excerpts from the American Bar association Criminal Justice Section Defence Standards articulate the explicit duties and obligations placed on defence counsel.[89]
 
Standard 4-4.1, Duty to Investigate, states:
Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to defense counsel of facts constituting guilt or the accused's stated desire to plead guilty.
 
Standard 4-1.3, Delays, Punctuality & Workload states:
(e) Defense counsel should not carry a workload that, by reason of its excessive size, interferes with the rendering of quality representation, endangers the client's interest in the speedy disposition of charges, or may lead to the breach of professional obligations.
 
Standard 4-5.2 Control and Direction of the Case
(a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel include:
   (i) what pleas to enter;
   (ii) whether to accept a plea agreement;
   (iii) whether to waive jury trial;
   (iv) whether to testify in his or her own behalf; and
   (v) whether to appeal.
(b) Strategic and tactical decisions should be made by defense counsel after consultation with the client where feasible and appropriate. Such decisions include what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and what evidence should be introduced.
(c) If a disagreement on significant matters of tactics or strategy arises between defense counsel and the client, defense counsel should make a record of the circumstances, counsel's advice and reasons, and the conclusion reached. The record should be made in a manner which protects the confidentiality of the lawyer-client relationship.
 
Clearly the American Standards are far more comprehensive than the Canadian Codes and provide better guidance on the role of defence counsel. Because education and regulation of defence counsel is a key aspect to preventing wrongful convictions, Canadian ethics commissions should consider adopting more comprehensive ethical guidelines, perhaps including provisions similar to some of the American Standards listed above.
 
Ethical code obligations that will help prevent wrongful convictions.
Canadian courts have pronounced on the importance of defence counsel investigating all leads and not acting as the judge of the client’s case:
 
The lawyer's explanation that he did not believe his client's story is also totally unacceptable. The lawyer cannot set himself up as the judge of his client.[90]
 
[D]efence counsel failed to take the rudimentary step of investigating witnesses who he had been told would support his client's alibi. … It is that failure which raises the incompetence of counsel to the level of preventing the appellant from having a fair trial.[91]
 
It is recommended that these principles be incorporated into the codes of ethics governing defence lawyers. Furthermore, it is recommended that guidelines confirming the decision making responsibilities between defence counsel and the accused, similar to those of the American Bar Association listed above, be adopted.
 
Modification of the ethical codes is a relatively non-contentious recommendation. Other remedies involve greater costs, and some would be politically unpopular:
o       More aggressive sanctions could be imposed against defence lawyers found to have breached ethical code obligations. However, such measures may discourage lawyers from practicing criminal law on a pro-bono basis and may reduce the number of lawyers willing to work at legal aid rates. It is not clear that only the incompetent lawyers would be discouraged from practicing.
o       Provide increased funding for public defenders. An argument for equal funding of Crown and public defenders is made on the principle that the adversary system operates most effectively when two equal rivals are pitted against one another. While increased funding for public defenders is desirable, the applicability of this argument as a basis for such funding is questioned given that the Crown’s goal is not to secure a conviction.
o       Modification of ethical codes governing Crown attorneys to impose an obligation on Crown to notify relevant authorities in the event that it is obvious that the accused is not receiving effective assistance of counsel. 
o       Place limits on the case load that can be taken on by defence lawyers. For counsel who have a mixture of private and public practice, this may be difficult to implement.
o       Review of the procedural process of appealing convictions once the regular appeals process is exhausted. In the UK there is the Criminal cases review commission, an executive, non-departmental public body set up to review applications of convicted defendants who claim to be wrongfully convicted.[92] In Canada there is a governmental review process under s.696.1 of the Criminal Code.[93] Commentators have discussed the adequacy of the Canadian process of conviction review.[94]
 
Ineffective assistance of counsel has caused wrongful convictions in Canada.
 
Appellate courts are deferent to the performance of trial counsel and imposed a heavy burden on those making ineffectiveness claims. As a result, ineffectiveness claims seldom succeed. Lowering the standard of review for ineffectiveness claims will likely lead to an increased number of such claims and does not appear to be a practical way to mitigate ineffective assistance of counsel as a cause of wrongful convictions.
 
Education and motivation of defence counsel is essential in regulating the quality of defence work in Canada. A cost effective and non-contentious measure to educate defence counsel and control the quality of defence work is to expand the ethical code provisions defining the role and responsibilities of defence counsel in the criminal justice system.
 
 



[1] The Report of the Governor’s Commission on Capital Punishment; Submitted to George H. Ryan, Governor of Illinois, the 15th of April, 2005 (State of Illinois, 2002), http://www.state.il.us/defender/report.pdf at 105 [Ryan Report].
[2] Jerome P. Kennedy, “Writing the Wrongs: The Role of Defence Counsel in Wrongful Convictions”, Canadian Journal of Criminology and Criminal Justice, 2004 Vol. 46 Iss. 2 at 198.
[3] “Mandatory Justice: Eighteen Reforms to the Death Penalty, Constitution Project” (2001) at 6, cited in the Ryan Report at 105.
[4] The Inquiry Regarding Thomas Sophonow: The Investigations, Prosecution and Consideration of Entitlement to Compensation, The Role of Defence Counsel, http://www.gov.mb.ca/justice/publications/sophonow/defence/index.html
[5] R. v. B. (G.D.), [2000] 1 S.C.R. 520 at para. 25 citing R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at para. 65 (Ont. C.A.).
[6] The Report on the Prevention of Miscarriages of Justice, FPT Heads of Prosecutions Committee Working Group, September 2004 at 152.
[7] The Royal Commission on the Donald Marshall, Jr. Prosecution (Province of Nova Scotia, 1989) [Marshall Inquiry] found ineffective assistance of counsel to be a significant cause of the wrongful conviction of Donald Marshall, Jr. The commission on the proceedings involving Guy Paul Morin (Toronto: Ontario Ministry of the Attorney General, 1998), the Honourable Fred Kaufman, C.M., Q.C., Commissioner, commented at 1049 that in many cases, ineffective assistance of counsel has been a cause of wrongful convictions.
[8] The Honourable T. Alexander Hickman, Q.C., “Wrongful Convictions and Commissions of Inquiry: A Commentary”, Canadian Journal of Criminology and Criminal Justice, 2004 Vol. 46 Iss. 2 at 183.
[9] Ibid.
[10] Justice Casey Hill, “Ineffective assistance of Counsel” (Ontario, Superior Court of Justice: 2002), informally published on the documentary CD distributed at the Unlocking Innocence Conference, Oct. 20-22, 2005, Winnipeg.
[11]The commission on the proceedings involving Guy Paul Morin (Toronto: Ontario Ministry of the Attorney General, 1998), the Honourable Fred Kaufman, C.M., Q.C., Commissioner, at 1044 [Morin Inquiry].
[12]Morin Inquiry at 1049.
[13]Royal Commission on the Donald Marshall, Jr. Prosecution (Province of Nova Scotia, 1989) [Marshall Inquiry].
[14]Marshall Inquiry at 277.
[15]Lead counsel, C.M. Rosenblum, hung up the phone on Barbara Floyd who called to say that one of the Crown witnesses could not have witnessed the murder because that witness was at a dance at the time: Marshall Inquiry at 75.
[16]Marshall Inquiry at 77.
[17]Marshall Inquiry at 278.
[18]Marshall Inquiry at 72.
[19]Marshall Inquiry at 73.
[20]Marshall Inquiry at 73.
[21]Marshall Inquiry at 77.
[22] R. v. Hinse, [1997] 1 S.C.R. 3.
[23] R. v. Hinse (1994), 64 Q.A.C. 53 (Que. C.A.) [Hinse].
[24] Hinse at para. 40.
[25] Hinse at para. 17.
[26] Hinse at para. 40.
[27] Barrie Anderson, Manufacturing Guilt, Wrongful convictions in Canada (Halifax, Fernwood: 1998) at 16 [Manufacturing Guilt].  
[28] Manufacturing Guilt at 63 – 71.
[29] Ibid.
[30] R. v. Delisle (1999), 133 CCC (3d) 541 (Que. C.A.).
[32] A process somewhat analogous to an application under s. 696.1 of the Criminal Code, R.S.C. 1985, c. 46.
[33] State v. Bromgard, 261 Mont. 291, 862 P.2d 1140 (1993).
[34]Ibid.
[35] State v. Bromgard, 285 Mont. 170 (1997).
[36] Ibid.
[37] Ibid.
[38] Harris by and through Ramseyer v. Wood, 64 F.3d 1432 (1995) [Harris].
[39] Ibid.
[40] Ibid.
[41] Jim Dwyer, Peter Neufeld and Barry Scheck, Actual Innocence (New York: Doubleday, 2000), Chap. 9 [Actual Innocence].
Scott Christianson, Innocent – Inside Wrongful Conviction Cases (New York: New York University Press, 2004), Chap. 4 [Innocent].
[42] Actual Innocence and Innocent, supra. See also Bob Boruchowitz, “Lessons from the United States’ Public Defender Experience” presented at the 1999 International Legal Aid Conference in Vancouver, British Columbia,
[43] Melina Buckley, “The legal aid crises and a time for action”, Canadian Bar Association, June 2000, http://www.cba.org/cba/Advocacy/PDFfiles/Paper.pdf
[44] Robert G. Hann and Joan Nuffield, “Court site study of adult unrepresented accused in the provincial criminal courts, Part 1: Overview Report”, Department of Justice Canada, September 2002 at 18; http://canada.justice.gc.ca/en/ps/rs/rep/2003/rr03lars-2/rr03lars-2.pdf
[45] Ibid at 40.
[46]Marshall Inquiry at 176.
[47]Marshall Inquiry at 77.
[48] Griffin, L., “The correction of wrongful convictions: A comparative perspective”, (2001) American University International Law Review 16 1241 at 1260.
[49]McConville, M. & Mirsky, C., “Criminal Defense of the Poor in New York City”, (1986-87) 15 N.Y.U. Rev. L. & Soc. Change 581.
[50] Actual Innocence, Chap. 9 at 190.
[51] For authority that different approaches are used depending on the purpose for which the evidence is being considered, see R. v. Dunbar, 2003BCCA 667 at para. 34 to 36.
[52] R. v. McKellar (1994), 19 O.R. (3d) 796 (Ont. C.A.) [R v. McKellar].
[53] R. v. B. (G.D.), [2000] 1 S.C.R. 520 [R. v. B. (G.D.)].
[54] R. v. Delisle (1999), 133 CCC (3d) 541at 546 (Que. C.A.).
[55] Ibid.
[56] R. v. B. (G.D.) at para. 24.
[57] R. v. B. (G.D.) at para. 26 following Strickland v. Washington, 466 U.S. 668 (1984) (U.S.S.C.) [Strickland].
[58] R. v. B. (G.D.) at para. 26.
[59] R. v. Delisle (1999), 133 CCC (3d) 541 at 550 (Que. C.A.).
[60] R. v. B. (G.D.) at para. 29.
[61] R. v. Strauss (1995), 100 C.C.C. (3d) 303 (B.C.C.A.) [R v. Strauss].
[62] R. v. Strauss at 319.
[63] R. v. Dunbar, 2003 BCCA 667 [R v. Dunbar].
[64] R. v. Dunbar at para. 29 citing R. v. Jim, 2003 BCCA 411 at para. 12.
[65] R. v. B. (G.D.) at para. 27.
[66] R. v. Strauss at para. 53.
[67] Actual Innocence at 13.
[68] R. v. B. (G.D.) at para. 5.
[69] R. v. B. (G.D.) at para. 19.
[70] R. v. B. (G.D.) at para. 19.
[71] Strickland v. Washington, 466 U.S. 668 at 690 (1984) (U.S.S.C.).
[72] R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at 59 (Ont. C.A.) [R v. Joanisse].
[73] Ontario Court of Appeal, Procedural Protocol: Re Allegations of Incompetence of Trial Counsel in Criminal Cases, http://www.ontariocourts.on.ca/court_of_appeal/notices/protocol/protocol...
[74] British Columbia Court of Appeal Practice Directives: Ineffective Assistance of Trial Counsel, http://www.courts.gov.bc.ca/ca/criminal%20practice%20directives/#Ineffective%20assistance%20of%20Trial%20Counsel
[75] R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.) [R v. Joanisse].
[76] R. v. McKellar(1994), 19 O.R. (3d) 796 (Ont. C.A.) [R v. McKellar].
[77] R. v. McKellar at 799.
[78] R. v. Dunbar at para 72.
[79] R. v. Dunbar at para 73.
[80] R. v. Palmer (1979), 50 C.C.C. (2d) 193 [R v. Palmer].
[81] R. v. B. (G.D.) at para. 16.
[82] R. v. B. (G.D.) at para. 19, citing R. v. McMartin, [1964] S.C.R. 484 and R. v. Price, [1993] 3 S.C.R. 633.
[83] John Burkoff and Hope Hudson, Ineffective Assistance of Counsel, loose-leaf, (New York: Clark Boardman Callaghan, 1994).
[84] United States v. Cronic, 466 U.S. 648 (1984) (U.S.S.C.).
[85] Noted in the updates notice found at the front of the loose-leaf volume.
[86]MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235.
[87] Paragraph 3 of commentary to Chapter III, Code of Professional Conduct, The Canadian Bar Association, August 1987.
[88] Canon 3(1), Chapter 1, Professional Conduct Handbook of the Law Society of British Columbia, 1993.
[90] R. v. Delisle (1999), 133 CCC (3d) 541 at 555 (Que. C.A.).
[91] R. v. McKellar at 799.
[92] L. Griffin, “The correction of wrongful convictions: A comparative perspective”, (2001) American University International Law Review 16 1241 at 1275.
[93]Criminal Code, R.S.C. 1985, c. 46.
[94] See Kerry Scullion, “Wrongful Convictions and the Criminal Conviction Review Process pursuant to Section 696.1 of the Criminal Code of Canada”, Canadian Journal of Criminology and Criminal Justice, 2004 Vol. 46 Iss. 2 at 189.