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Top court dismisses lawyer incompetence case

|Written By Christopher Guly

The Supreme Court of Canada''s dismissal of an appeal by an Ontario man regarding the issue of ineffective assistance of counsel suggests the system has enough checks and balances to guard against such occurrences, according to Toronto criminal lawyer Joseph Di Luca.

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"Once they're convicted, the first reaction of many people is, 'My lawyer screwed me,' but very few of those claims actually go forward," says Di Luca, who often appears as a duty counsel at the Ontario Court of Appeal.

"It became the flavour of the month for a period of time until practice directions came down."

Six years ago, the Ontario Court of Appeal released a procedural protocol that addressed allegations of incompetence of trial counsel in criminal cases.

The document, written by Justice David Doherty, Paul Lindsay (currently Ontario's assistant attorney general) and Irwin Koziebrocki, then vice-president of the Ontario Criminal Lawyers' Association, sets out guidelines for handling an appellant's allegations that his or counsel at trial "conducted him or herself in a manner that amounted to professional incompetence or otherwise contributed to a miscarriage of justice."

Before such accusations are made, appeal counsel "should satisfy him or herself, by means of personal investigations or inquiries, that there is some factual foundation for this allegation apart from the instructions of the appellant."

Appeal counsel is also required to provide trial counsel with "informal notice of the general nature of the potential allegations" and a "reasonable opportunity to respond" to them.

In his leave to appeal application to the Supreme Court in R. v. Seepersad, Jaglal Roshan Seepersad argued that his trial counsel was "ineffective because he ignored instructions to call the accused man's wife to refute an allegation that she had witnessed [an] assault alleged by the complainant."

(On appeal, the defence counsel deposed that following an interview with the man's wife and a review of her police statement, he considered her to be a "weak witness.")

In his leave application, Seepersad also alleged that his counsel was ineffective "for not properly explaining" the ineffectiveness of his trial counsel to the Ontario Court of Appeal, and that trial and appeal counsel "ignored" his instructions to have forensic tests undertaken "to refute aspects of the complainant's testimony."

According to the Supreme Court synopsis, the case involved allegations that Seepersad and a co-accused lured a man into a shed "where they tied him to a chair, bound his mouth, poured gasoline on him, hit him, accused him of theft, and threatened to kill or set him on fire or have someone butcher him."

In October 2002, Seepersad was convicted of unlawful confinement, assault with a pellet gun and gasoline, and uttering a death threat. Five months later, Justice Douglas Maund of the Ontario Court of Justice sentenced Seepersad to two years imprisonment less a day followed by two years of probation.

In 2003, the Ontario Court of Appeal dismissed his appeals against conviction and sentence.

"Trial counsel gave, and had reasonable grounds for, not calling the wife as a witness," said the endorsement by the three-member appeal panel.

"We are not persuaded that there is a reasonable probability that the result would have been different had trial counsel done what the appellant submits should have been done, or that there was a miscarriage of justice."

In March of this year, the Supreme Court of Canada rejected Seepersad's leave application.

Six years ago, in R. v. G.D.B., the Supreme Court dismissed an appeal by an Alberta man known as G.D.B. (his identity undisclosed because a minor was involved) who was convicted by a jury of sexual assault and indecent assault of his adopted daughter.

The man's appeal counsel sought reversal of the convictions on the grounds that trial counsel was "incompetent," or that "fresh" evidence (an audio-taped conversation between the complainant and her mother in which the complainant denied she had been sexually molested by the accused) not used at trial on counsel's advice "impacted on the issue of guilt or innocence, and the failure to use this evidence resulted in a miscarriage of justice."

On cross-examination, the girl denied having had any contact with her mother at the time, and the mother provided testimony that contradicted the complainant's evidence.

A commissioner appointed by the Alberta Court of Appeal conducted an investigation, and based on those findings, the court dismissed the appeal -- as did the Supreme Court.

"Where, in the course of a trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look behind it save only to prevent a miscarriage of justice," wrote since-retired justice John Major.

"The failure to obtain specific instructions did not affect the outcome of the trial.

"In 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."

Di Luca says the decisions by the higher courts reflect the "very high standards" in place regarding the client-solicitor relationship.

"Once the client hires the lawyer, decisions as to whether to plead guilty or not, whether to testify or not, are left to the purview of the client. So within that model, it seems to accord the trial lawyer with a huge amount of leeway in terms of making all of the tactical and substantive decisions at trial regarding evidence, witnesses and so on -- and courts are not quick to tread on that," he explains.

"A court of appeal is not there to sit as a Monday-morning quarterback and second-guess every tactical trial decision that a lawyer makes."

Brian Greenspan, of the Toronto firm Greenspan Humphrey Lavine, says the courts have indicated they won't revisit a trial lawyer's decisions "simply because they turned out to be wrong."

"As long as the issues have been canvassed, discussed and reviewed with a client, and a decision was made -- which doesn't mean the decision is always right -- it's not subject to review unless the trial lawyer missed something important."

Di Luca adds that the Law Society of Upper Canada would discipline counsel who failed to act in accordance with ethical guidelines.

"But counsel may do something that is wrong, like a bad decision that prejudices the client, which might not necessarily be unethical or subject to disciplinary proceedings. Yet it could still be considered ineffective assistance of counsel," explains Di Luca, who is a Toronto director of the Ontario Criminal Lawyers' Association.

"The Court of Appeal will look at whether there was a legitimate error in the course of a trial by defence counsel and that error resulted in a miscarriage of justice or was prejudiced to the defence of the accused. A client may be entitled to a new trial on that basis alone, but it's a very high standard."

Still, Di Luca says that criminal lawyers have to keep the communication lines with their clients always open.

"Notwithstanding the fact that courts are reluctant to interfere with a trial counsel's decisions, lawyers need to know that their performance will impact the outcome of a trial and that their decisions could prejudice their client's case."

"Most, if not all, defence lawyers do their best for their clients. But it's a human system and we're prone to making mistakes as anyone else."

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