\n- satisfy him or herself, by personal investigation or inquiries, that some factual foundation exists for this allegation apart from the instructions of the appellant;<\/li>\n
- provide trial counsel with informal notice of the general nature of the potential allegation of ineffective assistance;<\/li>\n
- provide trial counsel with a copy of this section of the Practice Direction, or a link to the court\u2019s website where it can be found; and<\/li>\n
- provide trial counsel with a reasonable opportunity to respond to the allegations.<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n
When provided with informal notice of the potential allegations, trial counsel shall acknowledge receipt of the notice in writing to appeal counsel as soon as reasonably possible.<\/p>\n
\n- In any case in which appeal counsel decides to pursue an allegation of ineffective assistance of trial counsel as a ground of appeal, appeal counsel shall:\n
\n- provide trial counsel with a copy of a supplementary notice of appeal in which the allegation of ineffective assistance of counsel is described with reasonable particularity, together with any subsequent documents that provide any further details of the claim;<\/li>\n
- serve a copy of the supplementary notice of appeal and any subsequent documents that provide further details of the claim on the respondent;<\/li>\n
- file a supplementary notice of appeal with the Court; and<\/li>\n
- serve and file with the supplementary notice of appeal a cover letter stating that the matter concerns an allegation of ineffective assistance of counsel, and providing the court with the address, telephone number, and e-mail address of the trial or appellate counsel alleged to have provided ineffective assistance.<\/li>\n<\/ol>\n<\/li>\n
- Upon receipt of a supplementary notice of appeal or other document alleging ineffective assistance of trial counsel, a judge of the court will be appointed appeal management judge to supervise the collection and assembly of materials that will become the record for the advancement and determination of the allegation of ineffective assistance of trial counsel. There is no need for counsel to request appeal management in these cases.<\/li>\n
- As soon as reasonably possible after receiving a written request from appeal counsel and a written direction from the appellant or a supplementary notice of appeal that contains an allegation of ineffective assistance, whichever is first to occur, trial counsel shall forthwith transfer the entire file to appeal counsel. If trial counsel has any objection to the transfer of the file, he or she may bring an application for directions to the appeal management judge as soon as possible.<\/li>\n
- If trial counsel wants to, or is professionally obligated to, keep a copy of any portions of the trial file before transferring the file to appeal counsel, trial counsel may, at his or her expense, make copies of those documents she or he wishes to retain from the file. Further, if trial counsel wants access to the file in connection with the appellant\u2019s case after its transfer to appeal counsel, appeal counsel must:\n
\n- facilitate trial counsel\u2019s access to the entire file within a reasonable time; and<\/li>\n
- permit trial counsel to make copies of those documents she or he wishes from the file at trial counsel\u2019s own expense.<\/li>\n<\/ol>\n<\/li>\n
- As soon as reasonably possible after being served with a notice of appeal, supplementary notice of appeal or other document alleging ineffective assistance of trial counsel, the responsible Director of the Crown Law Office \u2013 Criminal or the Public Prosecution Service of Canada shall:\n
\n- assign counsel to respond to the appeal and to deal with any issues that may arise concerning the claim of ineffective assistance of trial counsel; and<\/li>\n
- advise the Criminal Appeal Coordinator<\/a> of the name of counsel assigned to respond to the appeal. An e-mail to this effect is sufficient.<\/li>\n<\/ol>\n<\/li>\n
- Starting from 30 days after appeal counsel\u2019s receipt of the appellant\u2019s file from trial counsel, appeal counsel shall permit counsel for the respondent to have access to this file, except for any materials over which the appellant claims solicitor-client privilege.Where the appellant does not assert any claim of solicitor-client privilege with respect to any material in the file, the respondent may make copies of any or all of those materials at the respondent\u2019s expense.<\/li>\n
- Where the appellant asserts a claim of solicitor-client privilege with respect to any materials in the file, appeal counsel shall forthwith provide the respondent with:\n
\n- an inventory identifying the materials alleged to be privileged, to the extent it is possible to do so without compromising the privilege; and<\/li>\n
- a brief written statement of appeal counsel\u2019s position on the basis of the claim of the solicitor-client privilege and the extent or scope of any waiver of the privilege arising from the allegation of ineffective assistance at trial.<\/li>\n<\/ol>\n<\/li>\n
- As soon as practicable and not later than 45 days from the date on which counsel for the respondent has been assigned to the appeal, appeal counsel shall complete, serve on the respondent and file with the Court a document in Schedule \u2018A\u2019 Word<\/a>, PDF<\/a>, available on the court\u2019s website. Within the same time period, appeal counsel and counsel for the respondent shall arrange a meeting or a conference call with the appeal management judge regarding:\n
\n- the specific nature of the allegation of ineffective assistance;<\/li>\n
- any issues arising from the assertion of solicitor-client privilege and the extent of any waiver of that privilege;<\/li>\n
- any issues arising out of access to the trial file by trial counsel or the respondent;<\/li>\n
- a timetable for the appellant\u2019s perfection of the appeal, including the filing of material to comprise the record on the claim of ineffective assistance of counsel; and<\/li>\n
- any other issues relating to the perfection, listing and argument of the appeal.<\/li>\n<\/ol>\n<\/li>\n
- Appeal counsel shall file with the court an inventory of all material that they propose to have constitute the record in connection with the claim of ineffective assistance of trial counsel not later than the deadline imposed by the appeal management judge. To the extent that the respondent knows at this stage of any materials to be filed, they may be included in a joint record to avoid duplication.<\/li>\n
- As soon as possible after the inventory of proposed contents of the record has been filed, appeal counsel, the respondent and the appeal management judge shall meet in person or by conference call to discuss and for the appeal management judge to provide directions about:\n
\n- the order and timetable for cross-examination on the materials filed by appeal counsel and the respondent;<\/li>\n
- the timetable for cross-examination of trial counsel on his or her affidavit, or if trial counsel has not filed an affidavit, for examination of trial counsel on his or her professional performance at trial; and<\/li>\n
- the resolution of any outstanding or potential issues of solicitor-client privilege before the examination or cross-examination of trial counsel takes place.<\/li>\n<\/ol>\n<\/li>\n
- When the record for the claim of ineffective assistance of counsel at trial has been completed, appeal counsel and the respondent shall meet in person or by conference call with the appeal management judge regarding:\n
\n- filing the record compiled in connection with the claim of ineffective assistance of trial counsel;<\/li>\n
- filing any additional factums relating to this ground of appeal;<\/li>\n
- determining the time to be allotted for oral argument;<\/li>\n
- a timetable for the filing of material to be filed on behalf of the respondent;<\/li>\n
- a timetable for any remaining cross-examinations;<\/li>\n
- setting a date for the hearing of the appeal; and<\/li>\n
- any other issue relating to the perfection, listing or hearing of the appeal, including whether any further appeal management conference calls are necessary.<\/li>\n<\/ol>\n<\/li>\n
- Where the advancement of ineffective assistance of trial counsel as a ground of appeal involves an application by appeal counsel to introduce fresh evidence on the hearing of the appeal, the record shall be sealed when filed with the court in accordance with r. 27(10). Absent direction or an order from the appeal management judge to the contrary, the parties may make detailed reference in their respective factums to the content of the material included in the record completed for the purposes of advancing this ground of appeal. The court may read the sealed materials in advance of the hearing of the appeal. Any factums relating to the fresh evidence shall also be sealed.<\/li>\n
- Where the alleged ineffective assistance was by appellate counsel and not trial counsel, this counsel may be referred to as \u201cfirst appellate counsel\u201d, and the rest of this section applies with the appropriate modifications.<\/li>\n
- The procedure described in this section of the Practice Direction does not relieve appeal counsel of the obligation to perfect the appeal in accordance with the Criminal Appeal Rules<\/em>. The appeal management judge may give directions or make orders relieving appeal counsel or the respondent of strict compliance with this Practice Direction or the Criminal Appeal Rules<\/em>.<\/li>\n<\/ol>\n