Experienced Criminal Lawyers

Common Grounds of Appeal and the Importance of Trial Counsel

What is an appeal and what do I need to know about the appellate process?

If either party in a legal proceeding disagrees with a judge’s decision, the party may ask the next court in succession to review the decision. Seeking this review is more commonly known as “seeking leave to appeal”.  In some circumstances leave will be automatic and in other cases leave is discretionary.  If the appellate court allows the appeal, it has the power to reverse the judge’s decision. If this power is exercised it is possible that a complete reversal will result or possibly a new hearing or trial. If the decision is not reversed, the original decision will remain in effect.

What are common grounds of appeal?

The most common grounds (or legal challenge and basis) for appeal in a criminal case include legal error committed by the trier of fact, juror misconduct and ineffective assistance of counsel.

What are the common legal errors that are litigated in the appellate process?

Legal errors may result from improperly admitted evidence, incorrect jury instructions, lack of sufficient evidence to support the legal conclusion and finally insufficient reasons to support the legal conclusion. To grant the appeal, the appellate court must find that these errors affected the outcome of the case. If the errors would not have changed the verdict, they are considered harmless, and the decision will remain in effect. This is because the Criminal Code in section 686(1)(b)(iii) allows an appeal court to dismiss an appeal despite agreeing that errors occurred by concluding that there has been “no substantial wrong or miscarriage of justice”. This is called the “curative proviso”. It may also be applied where “the outcome of the trial, regardless of error, would necessarily have been the same.”

What is Juror Misconduct?

Juror misconduct includes improper communication between jurors and possibly trial participants, it also includes the use of drug or alcohol during deliberations and conducting independent research. Jurors conducting independent research has been a legal issue that is now more prevalent in the past. After members are selected for a jury several rules are imposed. The purpose is to maintain an impartial panel to hear the facts and come to a conclusion. However, in a few recent cases, courts of appeal have written about this growing problem.

What is ineffective assistance of counsel?

Ineffective assistance of counsel occurs any time counsel fails to provide effective representation. The verdict is unreliable and the trial was inherently unfair when counsel does not provide effective representation.

The proper test for overturning a verdict due to ineffectiveness of counsel requires that:

1. the counsel’s performance was deficient (through act or omission) such that counsel made serious errors amounting to incompetence; and
2. the “deficient” performance prejudiced the defence in a way that deprived the accused of a fair trial and created a miscarriage of justice.

A claim for ineffective assistance counsel has two components. There must be performance that is incompetent (performance component) and the performance must result in a “miscarriage of justice” (the prejudice component).  Therefore, the applicant must demonstrate the following:

1. the act or omission that was believed to be incompetent assistance by counsel (performance);
2. the incompetent assistance caused a miscarriage of justice by undermining either appearance of a fair trial or reliability of the verdict (prejudice); and
3. the facts that underpin the claim on a balance of probabilities.

These claims are complex. Typically, fresh evidence is required. The legal analysis follows an unusual process. Once the first step is satisfied, the court should then go to the third step to determine whether there is prejudice. If no prejudice is found, the court should not go onto the second step to consider performance. This would appear to effectively shortcut the analysis to avoid dissecting counsel’s performance when it is not necessary. The threshold sets a high bar for counsel representation and assumes effective representation from the start. There is a “wide range of reasonable professional assistance” the reviewing court will consider. It is important when claiming ineffective assistance from counsel as a ground of appeal to focus on how the ineffectiveness resulted in a miscarriage of justice at trial. A miscarriage of justice can either result from procedural unfairness or from an unreliable result. A result is unreliable when it is demonstrated that there was a “reasonable possibility that, but for the incompetence, the result could have been different.”

What does the appellate court consider in ineffective assistance claims?

It is commonly understood that each lawyer is different and will approach the case in a unique manner. The art of advocacy (criminal defence) is highly individualized. No lawyer will use the same strategies or tactics in building a defence. Counsel has “implied authority” to make tactical decisions on behalf of the client. Appeals are not allowed simply to try a different tactic or strategy.

What should I understand about how my lawyer is conducting the case?

We always recommend a transparent process between our lawyers and clients. We also recommend a client-centered focus which means constant and clear communication between our lawyers and you. However, it is important to understand that the client is not entitled to control the form of examinations done by counsel or the evidence that is intended to be introduced. However, there are some situations where the refusal to interview or seek information from proposed defence witnesses can result in a miscarriage of justice.

Another important issue is the advice on whether the client (accused) should testify. Your lawyer must be capable of providing advice on the advantages and disadvantages of testifying. There may be a miscarriage of justice where proper advice about testifying had “reasonable possibility” of affecting the verdict. If the lawyer disregarded of the accused’s choice on whether to testify this will generally result in a miscarriage of justice. Where it is established that the accused would have testified except for the refusal of counsel to let him do so would be a miscarriage of justice. The key element is the finding of whether the accused actually would have testified but for the advice. Your lawyer should give you advice about the decision to testify and then take your instruction on this issue. Simply advising on way or the other is not enough. Deciding to testify is a critical decision. It can result in a negative finding on credibility or reliability and destroy the defence that was presumably built. We always recommend attending preparation sessions with your lawyer in order to be prepare to testify and that this critical decision should be made at the close of the prosecutor’s case.

What is the most common complaint you hear when ineffective assistance is raised?

We commonly hear about counsel’s performance. However, what must be established is that the conduct is fell outside of the “wide range of reasonable professional assistance.”  We usually hear complaints about the prior lawyer staying in touch and or that the lawyer wasn’t prepared. A failure to review the case or the accused’s version of events can impact the trial fairness and result in a miscarriage of justice. The same is true when the lawyer is not adequately prepared. However, it is important to understand that the court presumes effectiveness and therefore, the threshold is high as mentioned previously.