Editor’s Note: This post is relatively long compared to others on this blog. But it is a quite complicated case that comprehensively explains an Ontario Court of Appeal practice protocol, so it seems worth the space for those who practice in this area.

In its July 29, 2014 decision in R. v. Graham, the Ontario Court of Appeal (Cronk, Watt and van Rensburg JJ.A.) comprehensively considered how to approach a criminal appeal alleging ineffective assistance of trial counsel. In doing so, it considered the practice protocol established by the Court on this matter.

The decision was prompted by two distinct matters having come before the Court:

(1) a motion for directions by the Crown regarding the ineffective assistance of counsel claim; and

(2) an application by the appellant for an order for the examination or cross-examination of his former trial counsel in aid of his ineffective assistance claim.

The Facts

The appellant had been convicted of various charges related to child pornography. He did not wish to have counsel represent him in his appeal. Amicus was nonetheless appointed to assist him. The appellant swore three affidavits in support of his ineffective assistance claim, seeking to introduce them as fresh evidence on his appeal.

The appellant applied for an order to examine various witnesses before a judge of the Court of Appeal or a special examiner. He did not name his former trial counsel as one of the proposed witnesses to be examined, apparently because he was then unaware that his trial counsel could be so included. The application was dismissed by the Court of Appeal on October 30, 2013.

Thereafter, he applied for the order to examine or cross-examine his former trial counsel. The former trial counsel agreed to voluntarily submit to examination or cross-examination without the necessity of a court order. He also filed submissions before the Court of Appeal on consent.

The Protocol

Since May 1, 2000, the Ontario Court of Appeal has had in place a procedural protocol regarding allegations of incompetence of trial counsel in criminal cases (the “Protocol”). As explained in Graham:

[14]     The Protocol provides for various procedural steps to be taken, many by the Crown, when an appellant seeks to raise an ineffective assistance claim in support of an appeal to this court. These steps include the involvement of a case management judge of this court, the potential filing of an affidavit from trial counsel in response to the appellant’s allegation of ineffective assistance, the facilitation by the Crown in filing such an affidavit, and the possible examination or cross-examination of trial counsel.

[15]     In this case, for the reasons described below, a full fresh evidence process as envisaged under the Protocol has not yet been undertaken. Specifically, the Crown has not sought an affidavit from the appellant’s trial counsel responding to the appellant’s allegation of ineffective assistance at trial, nor has it sought to cross-examine the appellant on his affidavits.

[16]     However, both the Crown and amicus have made inquiries of and have corresponded with the appellant’s former trial counsel. Copies of that correspondence have been provided to the appellant. In addition, the court was informed that the appellant has had access to his former trial counsel’s file and to the Crown’s pre-trial disclosure.

The Parties’ Submissions

The Crown submissions’ concentrated on the appellant’s ineffective assistance claim being without merit, that full compliance with the Protocol would be a waste of time and resources, that the appellant should be required to establish a threshold possibility of success before being permitted to advance this ground of appeal, and that the motion to examine or cross-examine the appellant’s former trial counsel should be dismissed.

The appellant obviously disagreed with the Crown, and submitted his motion should be allowed.

Amicus submitted that the Crown’s request for a threshold determination of the merits of the appellant’s ineffective assistance claim should be rejected:

1) as inappropriate, because it is difficult on a preliminary motion to consider the claim in the context of the full trial record; 2) as inefficient, since, as in most cases, other grounds advanced by the appellant will still require a full hearing on the merits before a panel of this court; and 3) because, in many cases, the lack of a response from trial counsel to an ineffective assistance claim in a criminal appeal will result in unfairness to the accused/appellant and corresponding injustice to the appellate process due to an incomplete record on the ineffective assistance issue.

The Crown’s Motion for Directions

The Court determined it was unnecessary to consider the Crown’s submissions on the general application of the Protocol, and only allowed the Crown’s motion for directions to the limited extent explained by its reasons, which did provide a valuable and comprehensive explanation of the Protocol:

[23]     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. The flexibility of the procedural rules set out under the Protocol, on a case-by-case basis, is specifically confirmed by [paragraphs 18 and 19] of the Protocol …

[25]     Thus, the Protocol explicitly contemplates that some of its procedural rules may not be appropriate or necessary in all cases. Further, any party may seek specific relief from strict adherence to the Protocol on an application to the involved case management judge of this court.

[26]     The Protocol is of great assistance to this court in adjudicating ineffective assistance claims on appeal. 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. The Crown does not suggest otherwise.

[27]     That said, where 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, as in this case, it is open to the Crown to apply to the applicable case management judge of this court for relief from this obligation. … In effect, this is what the Crown did in this case. 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.

[28]     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: … [emphasis added]

[29]     The critical issue is to ensure that sufficient evidence is placed before the court in respect of an ineffective assistance 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. In some cases, these objectives will be met without full compliance with the Protocol.

[30]     In this case, 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.

[31]     The record before us establishes that the appellant’s ineffective assistance claim has been particularized, trial counsel has been notified of the fact and details of that claim, inquiries have been made of him concerning the claim, and the nature and result of those inquires have been communicated to the appellant. Further, the basis for the Crown’s opposition to further compliance with the Protocol has been fully disclosed to the appellant and to the court.

[32]     In these circumstances, it cannot be said that the Protocol has been ignored, that its purposes have been undermined, or that the appellant’s ability to advance his ineffective assistance claim has been frustrated or impeded. 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.

[33]     In our opinion, no criticism of the Crown’s election in this case, once made, is warranted. The Crown has made a proper and good faith attempt to seek judicial consideration and variation of the procedural rules set out under the Protocol in the particular circumstances of this case, as is permitted by the Protocol.

The Appellant’s Application to Examine or Cross-Examine His Former Trial Counsel

The Criminal Code and the Protocol contemplate applications to examine trial counsel on his or her professional performance and/or cross-examine him or her on any filed affidavit. Typically, however, the Crown seeks to have counsel appointed for this purpose, or to have amicus appointed to attend and participate. Here, however, the appellant made it very clear that he wished to conduct this step in litigation on his own, and opposed the expansion of amicus’s mandate.

The Court of Appeal held the appellant’s motion should be dismissed, as:

[42]     … Without commenting on the merits of his ineffective assistance claim, we are not persuaded on this record that the appellant has demonstrated any reasonable possibility that anything his former trial counsel might say on examination or cross-examination in respect of the appellant’s complaints would materially advance the appellant’s ineffective assistance claim.

[43]     In particular, through the efforts of the Crown and amicus, the appellant knows what his former trial counsel has to say in response to the appellant’s allegations. We see no basis to conclude that examining or cross-examining his former trial counsel would add anything pertinent to the body of information now available to the appellant. To the contrary, in our view, the proposed questioning of his former trial counsel that the appellant wishes to undertake relates to peripheral and speculative matters.

[44]     Further, in connection with the witnesses that the appellant says should have been called at trial, this court has already determined in its October 30, 2013 ruling, described above, that much of the evidence that the appellant submits might have been provided by the identified witnesses “would simply be irrelevant” or “redundant or mere speculation” given the undisputed fact that child pornography was found on the appellant’s computer. We note that with respect to at least one of these witnesses, the appellant is even uncertain as to the witness’ identity.

[45]     Finally, given the availability of the full trial transcripts, the panel hearing the appeal is positioned to assess the comportment and conduct of the appellant’s former counsel at trial, and the nature of the defence advanced on the appellant’s behalf.

[46]     We therefore conclude that the appellant’s affidavits, together with the full trial record and the record on this application, provide a basis on which the panel hearing the appeal may assess the appellant’s complaints about his former trial counsel. Should that panel determine that evidence from the appellant’s former trial counsel is required in order to fully and fairly evaluate the appellant’s ineffective assistance of counsel claim, that panel may provide such further direction or order as it considers appropriate in the interests of justice.