It is not uncommon for an accused person convicted of a criminal offence to blame their lawyer for the outcome. While courts look upon such complaints with scepticism, the reality is that mistakes can happen and inadequate representation can cause a miscarriage of justice. The Court of Appeal for Ontario has recognized the importance of effective legal representation to a just outcome in a criminal case, saying “We place our trust in the adversarial process to determine the truth of criminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by partisan advocacy on both sides of the case.”

When an issue of ineffective assistance of counsel is raised on appeal, the justice system must find a way to fairly deal with the complaint. In May 2000, the Court of Appeal, with the assistance of representatives from the Criminal Lawyers Association, the Department of Justice and the Ministry of the Attorney General, enacted a Protocol for the presentation of appeals where there is an allegation of ineffective assistance of counsel.

This important effort has a number of hallmarks: (a) before making a claim of ineffective assistance of counsel, the appeal lawyer must satisfy him or herself by appropriate inquiry, that there is a factual basis for the allegation apart from the instructions of the client; (b) the appeal lawyer must provide trial counsel with the opportunity to respond to the allegation; (c) trial counsel is obliged to provide their entire file to the appeal lawyer; (d) the appeal is case managed by a judge of the Court of Appeal; (e) the Crown Attorney is entitled to review the file of trial counsel, except for those portions over which solicitor and client privilege is claimed; (f) if solicitor and client privilege is claimed, the appeal lawyer must provide an inventory of such documents to the Crown Attorney; (g) disputes over privilege will be decided by the case management judge; (h) either party can compel trial counsel to attend for examination on the issues involved in the appeal.

This creative Protocol ensures that the interests of all parties to the appeal are adequately protected. In the end however, the burden of proof is on the accused person to demonstrate to the appellate Court that ineffective assistance of trial counsel caused a miscarriage of justice.

It is a fundamental aspect of our civil justice system that parties to a lawsuit are required to make available to their opponent any relevant document relating to the matters in issue in the action. It does not matter if the document helps or hurts the cause, it must be produced. Lawyers, and particularly insurance lawyers defending personal injury claims, are waking up to the relevance of social media sites such as Facebook. The argument goes like this: “You Mr. or Ms. Plaintiff are claiming that injuries suffered in the accident have interfered with your quality of life. We would like to see how you portray yourself in your communication with friends on Facebook.”

In a thoughtful decision, Justice David Brown of the Ontario Superior Court of Justice had occasion to consider this argument in a recent case called Leduc v. Roman, 2009 CanLII 6838. Mr. Leduc had been involved in a car accident in February 2004. He brought an action claiming that his enjoyment of life and ability to engage in sports had been adversely affected. The defence lawyer conducted a search and learned that Mr. Leduc maintained a Facebook account. The profile available to the public showed only his name and picture. Access to the site was restricted to “friends” of Mr. Leduc. The defence brought a motion for production of information on the site. A Master of the Superior Court dismissed the motion, characterizing it as a “fishing expedition.”

Justice Brown heard the resulting appeal. He started by outlining some basic facts. Facebook is a social media website with 70 million users as of June 2008. More than 14 million photos are uploaded daily. Users can create a wall on which friends share messages with each other. Justice Brown quoted from an earlier decision on the important issue of privacy: “I have concluded that any invasion of privacy is minimal and is outweighed by the defendant’s need to have the photographs in order to assess the claim. The plaintiff cannot have a serious expectation of privacy given that 366 people have been granted access to the private site.” Justice Brown went on to articulate a rule for future cases: “Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on the party’s Facebook profile may be relevant to allegations made in the pleadings.”

Mr. Leduc was ordered to deliver a further affidavit of documents and the defence lawyer was permitted to cross-examine on the affidavit so as to discover precisely which of the contents on the private site were relevant to the issues in the action. Justice Brown concluded by making the following observation: “To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”

With these observations in hand, it seems to me that parties to a lawsuit should indeed now beware of Facebook.