Counsel conduct leads to mistrial in Nova Scotia Court of Appeal

Law360 Canada (February 3, 2026, 1:47 PM EST) --

John L. Hill

In many instances, the claim on appeal is that the accused received ineffective assistance of counsel. A claim of ineffective assistance can result in a new trial if it is shown that counsel’s acts or omissions fell below the standard of reasonable professional assistance and resulted in an unfair trial or a miscarriage of justice. It is rare for a trial in a provincial court to be adjourned because an accused person makes a claim for ineffective assistance of counsel midway through the trial. Yet such was the case in R. v. MacQuarrie, 2026 NSPC 5.

The Provincial Court of Nova Scotia ultimately ordered a mistrial in Ethan MacQuarrie’s case due to grave concerns about ineffective assistance of counsel and the integrity of the trial.

Midway through the trial, the solicitor-client relationship between MacQuarrie and his lawyer, Ashley Wolfe, broke down. Although the court initially adjourned the trial to allow MacQuarrie to retain new counsel, to avoid retraumatizing witnesses, fresh evidence later emerged alleging profound misconduct by Wolfe.

Through affidavits from MacQuarrie, his mother and others, the court accepted credible, contemporaneous evidence (handwritten notes and text messages) showing that Wolfe:

• Encouraged or counselled MacQuarrie to file a false judicial complaint against the trial judge mid-trial to force a mistrial.
• Did so with the apparent aim of being rehired for a new trial after correcting her own lack of preparation (e.g., obtaining expert evidence she had not secured initially).
• Assisted her incarcerated client in paying off a jailhouse poker debt, an ethically improper act that shed light on her judgment and mindset at the critical time.

The provincial court, in an application for a mistrial, noted numerous cases that have found or dismissed allegations that trial counsel provided ineffective assistance. For a claim to succeed, the appellant must establish on a balance of probabilities that trial counsel’s acts or omissions constituted incompetence, and a miscarriage of justice resulted.

Incompetence is to be determined by application of a reasonableness standard. The starting point in evaluating incompetence is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The conduct of counsel is not to be assessed simply with the clairvoyance of hindsight. If no prejudice can be demonstrated, it is appropriate to dispose of the claim on that basis and leave the issue of counsel’s conduct or performance to the profession’s self-governing body (R. v. G.D.B., 2000 SCC 22).

MacQuarrie sought to prove his assertion of the ineffectiveness of counsel by seeking to introduce fresh evidence, including an affidavit by MacQuarrie’s mother documenting Wolfe’s intention to seek a mistrial to remove the assigned judge and allow her more time to prepare.

The allegation, supported by Wolfe’s texts, that Wolfe was facilitating her incarcerated client’s payment of a jailhouse poker debt provided valuable insight into Wolfe’s judgment and mindset. It lent credence to the claim that Wolfe was willing to obstruct justice by making, or encouraging the making of, a false judicial complaint to attempt to have a mistrial declared to have a “do-over” when she could be adequately prepared for trial.

Although Wolfe denied these allegations, the court rejected her denials, finding on a balance of probabilities that the handwritten notes were hers and that the texts corroborated a plan to manipulate the judicial process. The court concluded this conduct created a serious appearance of unfairness, undermining public confidence in the administration of justice.

Applying established principles on ineffective assistance of counsel and fresh evidence, the court held that the misconduct went beyond trial strategy or competence and struck at the integrity of the justice system itself. Continuing the trial was deemed unworkable and unfair, given witness recall issues, potential new expert evidence and the irreparable distrust created toward the trial judge.

Reluctantly but necessarily, the court declared a mistrial and ordered that a new trial be held before a different judge.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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