Background
Jacques Trudel was convicted on March 29, 2022 by Justice Sally A. Gomery of the Superior Court of Justice on three counts: possessing crystal methamphetamine for the purpose of trafficking, possessing hydromorphone, and possessing property obtained by crime. He was sentenced on January 25, 2023.
Trudel appealed his convictions on the ground that he received ineffective assistance from trial counsel. He also sought leave to appeal his sentence, arguing that he was not given sufficient credit for time spent under strict bail conditions. A limited order under s. 684 of the Criminal Code was granted to appoint counsel to assist with the ineffective assistance claim; Trudel represented himself on the sentence appeal.
Both Trudel and his trial counsel filed affidavits and were cross-examined, with those materials admitted before the Court of Appeal as fresh evidence.
The Court’s Holding
The court dismissed the conviction appeal, finding that none of Trudel’s allegations against trial counsel rose to the level of incompetence. The court further held that even if counsel had made different tactical choices, there was no reasonable probability the verdict would have been different, and therefore Trudel failed to establish ineffective assistance of counsel.
On sentence, the court granted leave to appeal but dismissed the appeal on the merits. The sentencing judge had expressly considered Trudel’s position on the strict bail conditions and addressed it directly, treating those conditions as a mitigating factor rather than deducting them as a credit against sentence. The Court of Appeal held this approach was consistent with its prior guidance in R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.) and R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145.
Key Takeaways
- To succeed on an ineffective assistance of counsel claim, an appellant must show both that counsel’s conduct was incompetent and that there is a reasonable probability the verdict would have differed — failing either prong is fatal to the claim.
- Time spent under strict pre-trial bail conditions need not be deducted as a formal credit against sentence; a sentencing judge may instead treat such conditions as a mitigating factor, consistent with Downes and Joseph.
- Fresh evidence in the form of affidavits and cross-examination transcripts from both the appellant and trial counsel can be admitted on appeal to adjudicate ineffective assistance claims.
Why It Matters
This decision reaffirms the high bar for ineffective assistance of counsel claims in Ontario: it is not enough to identify tactical choices with which a defendant disagrees — the appellant must demonstrate both incompetence and a reasonable probability of a different outcome. Defence counsel and appellate practitioners can rely on this as a concise restatement of the two-part test.
The court’s endorsement of the Downes/Joseph framework also provides continued clarity for sentencing judges dealing with onerous pre-trial bail conditions: treating strict conditions as a mitigating factor, rather than a mathematical credit, remains the approved approach in Ontario.