Strike Strickland: a made-in-Canada approach to ineffective counsel claims
| dc.contributor.author | Duncan, Jill | |
| dc.contributor.examiningcommittee | Ireland, David (Law) | en_US |
| dc.contributor.examiningcommittee | Murchison, Melanie (University of Wisconsin) | en_US |
| dc.contributor.supervisor | Jochelson, Richard (Law) | en_US |
| dc.date.accessioned | 2019-09-16T15:15:37Z | |
| dc.date.available | 2019-09-16T15:15:37Z | |
| dc.date.issued | 2019-08-29 | en_US |
| dc.date.submitted | 2019-09-01T20:52:49Z | en |
| dc.degree.discipline | Law | en_US |
| dc.degree.level | Master of Laws (LL.M.) | en_US |
| dc.description.abstract | The right to effective counsel is a right guaranteed under the American Constitution and sections 7 and 11(d) of the Charter of Rights and Freedoms. A US Supreme Court decided a case called Strickland v Washington in 1980, establishing a two prong approach to ineffective defence counsel claims. The two prongs focused on the Performance and Prejudice Components. Notwithstanding the flaws of this approach, it was adopted into Canadian Jurisprudence by the Canadian Supreme Court in R v B (GD) in 2000, without commentary or analysis. This thesis submits that the Strickland test is too restrictive and unfairly requires a proof of prejudice to the rights of the accused. Included herein is an empirical study that examines the Canadian case law since 2000, the date B (GD) resulted in the adoption of the American test. This study reveals that the argument of ineffective counsel is seldom made: 316 cases in over 13,000 criminal appeals with success in only 50 cases. This translates into an average of less than 3 successful appeals per year for all of Canada. It is submitted that the low success rate has had a chilling effect on counsels’ ability to argue that an appeal has merit and has limited the number of times an appeal alleging ineffective counsel is made. This thesis submits a new approach, one based on Canada’s Constitution and, in particular, the Charter of Rights and Freedoms. The presumption of competence would be abolished and no particular deference would be afforded to counsel’s decisions. This test would still require the appellate to prove, to a balance of probabilities, that counsel’s conduct or errors, considered cumulatively, failed to pass the threshold of professional conduct. After that onus is discharged, the court must consider whether counsel’s conduct or errors led to the accused having an unfair trial. If that is the decision of the court, then a new trial should be ordered. In this way, ubi jus, ibi remedium – where there is a right there must be a remedy – will be fulfilled. | en_US |
| dc.description.note | October 2019 | en_US |
| dc.identifier.uri | http://hdl.handle.net/1993/34279 | |
| dc.language.iso | eng | en_US |
| dc.rights | open access | en_US |
| dc.subject | Law | en_US |
| dc.title | Strike Strickland: a made-in-Canada approach to ineffective counsel claims | en_US |
| dc.type | master thesis | en_US |
| local.subject.manitoba | yes | en_US |