Superior Court of Justice Protocol – Allegations of Incompetence
- 1.Before raising the incompetence or ineffective assistance of counsel, or that counsel otherwise contributed to a miscarriage of justice, appellate counsel has an obligation to satisfy themselves as soon as possible, by personal inquiry or investigation, that there is some factual foundation for the allegation, apart from the instructions of the appellant: R. v. Elliott (1975), 28 C.C.C. (2d) 546 (Ont. C.A.), R. v. Hofung (2001), 154 C.C.C. (3d) 257 at paras. 47-48 (Ont. C.A.), R. v. Wells (2001), 139 O.A.C. 356 at para. 76.
- 2.Appellate counsel should provide trial counsel, including duty counsel, with informal notice of the general nature of the potential allegations concerning ineffective assistance, and give counsel a reasonable opportunity to respond to the potential allegations. While not essential to permit trial counsel to respond (R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13 (Ont. C.A.)), appellate counsel should seek a waiver in writing of solicitor-client privilege with respect to communications between the Appellant and trial counsel, insofar as it is necessary to preserve the professional integrity of counsel, while responding to the allegation. The waiver should be filed with the Notice of Appeal, or Supplementary Notice of Appeal.
- 3.When appellate counsel decides to make the allegation public in a Notice of Appeal, Supplementary Notice of Appeal, Factum or affidavit, appellate counsel must first provide trial counsel with a copy of the document. Similarly, appellate counsel must provide trial counsel with a copy of subsequent documents that deal with the allegations.
- 4.When the Notice of Appeal alleging the incompetence or ineffective assistance of counsel, or that counsel otherwise contributed to a miscarriage of justice, is filed, appellate counsel shall notify the clerk of the appeal court and the Crown Attorney or Federal Prosecutor that a judge is required to supervise the appeal.
- 5.Where the Crown receives a Notice of Appeal in which the ineffective assistance of trial counsel etc. is raised by appellate counsel or an unrepresented litigant, and no request has been made for the appointment of a judge to supervise the appeal, the Crown shall notify the clerk of the appeal court that a judge is required to supervise the appeal.
- 6.Upon receipt of a request for the appointment of a judge to supervise an appeal, the clerk of the appeal court shall transfer the appeal file to the Regional Senior Justice or his / her designate, to appoint a judge to supervise the appeal.
- 7.A Crown Attorney shall be assigned to deal with all issues relating to the appeal, not later than the date upon which the request is made to appoint a judge to supervise the appeal.
- 8.The assigned judge shall conduct conference(s) with counsel to supervise the subsequent progress of the perfection and argument of the appeal, and hear pre-appeal applications by counsel. The judge shall conduct the supervision in the manner that best accomplishes the objectives of fairness in dealing with allegations of professional incompetence, and the need to have appeals heard in a timely fashion. This may, but not necessarily must, involve the procedures covered in the Court of Appeal’s Procedural Protocol (Appendix A). Conferences with counsel representing both parties shall be held in chambers or by conference call, subject to the discretion of the assigned judge. Conferences with unrepresented litigants should be held in court with a court reporter present.
- 9.Whether or not trial counsel has filed an affidavit, either party to the appeal may apply to the assigned judge to compel the appearance of trial counsel to be examined, either in or out of court, before the appeal.
- 10.The assigned judge shall make rulings necessary to promote a full and fair hearing of the issues raised. For example, the assigned judge may rule on claims of privilege, the production to appellate and Crown Counsel of trial counsel’s file where necessary, requiring the attendance of trial counsel and others for examinations in or out of court before the hearing of the appeal, and costs associated with those attendances and transcript production, and the schedule and procedure for the examinations.
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