|John L. Hill
The criminal defence bar should note that there seems to be an increase in the number of appeals where the appellant’s main ground for appeal is the ineffective assistance of counsel. One of the most recent cases to be considered by the Ontario Court of Appeal is R. v. Clare 2023 ONCA 591. The appeal decision was handed down on Sept. 12, from a conviction in the Ontario Court of Justice in September 2020.
Edward Clare pleaded guilty to one count of possession of hydromorphone for the purpose of trafficking and possession of the proceeds of crime. A search warrant executed at Clare’s home resulted in police finding three bottles of the drug in capsules with an estimated street value of $7,300. Police also seized $2,000 in cash from his wallet.
Before Clare entered his guilty plea, his defence counsel worked out a plea bargain for two years in custody in addition to the seven months he had spent in pretrial custody. He was taken to federal penitentiary. After serving two months he sought to appeal conviction saying the guilty plea was uninformed, and he had received ineffective assistance of counsel.
His representation of ineffective representation was that he was of the understanding that the two-year sentence would be inclusive of the pretrial custody and that on the enhanced credit of 1:1.5, his actual sentence would be just over a year of actual imprisonment.
The Court of Appeal was unsympathetic to his case. Clare was self-represented on his appeal, although he was assisted by duty counsel. The court noted the trial transcript established that the joint representation was not for two years including time served but for two additional years of imprisonment with a nine-month sentence on the proceeds charge to run concurrently. Further the judge had quizzed Clare on his understanding that his plea was voluntary and even though there was a joint submission, the ultimate decision on the appropriate penalty rested with the trial judge.
It was not noted in the reasons the appellate court rendered in this case, but one can assume that Clare’s trial counsel was very likely aware that a two-year penitentiary term would likely be less harsh than spending time in a provincial detention centre. Indeed, the trial transcript records Clare as making the statement, “I want to go federal …”
Clare’s defence lawyer at trial was careful in recording his communications. His notes demonstrated the Crown’s position that the penitentiary term was in addition to the time spent in lockup before sentencing. Even though Clare claimed illiteracy, the court was satisfied that Clare had been advised and that in entering his plea he was fully aware of what was likely to be assessed as a penalty.
Because defence counsel at trial took the time to obtain written instructions, it was unnecessary to remind Clare, and the judgment does not repeat the admonition contained in the Appeal Court’s reasons in R. v. Trought 2021 ONCA 379. There the court stated that failure to obtain written instructions may not be indicative of professional incompetence but can be considered questionable professional prudence. Similarly, in R. v. Ilunga 2023 ONCA 471, the Appeal Court noted that failure to obtain written instructions leaves a defence counsel in a vulnerable position when a claim of ineffective representation is made. In this case, Clare’s lawyer cannot be seen as neglecting his client’s best interests.
The court noted that when a claim of ineffective representation is made, the bar to establish such a claim is high. In the Clare case, the appellant was unable to meet this threshold. His appeal was dismissed.
With the growing number of claims of ineffective counsel being made, it is advisable that the criminal bar practise defensively.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at email@example.com.
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