Raising the Ineffective Assistance of Defence Counsel as a Ground of Review

Occasionally, practitioners raise the issue of the ineffective assistance of defence counsel as a ground for reviewing an adverse disciplinary decision. This sort of issue is not uncommon before the criminal courts. The British Columbia Court of Appeal gave some guidance on when such arguments might be accepted in the disciplinary context in Jalloh v. Insurance Council of British Columbia, 2016 BCCA 501. In that case, an insurance sales licensee faced a four year suspension for violating the privacy of a former romantic partner. He claimed that his lawyer unexpectedly sent a junior lawyer to represent him at his discipline hearing and that he was prevented from testifying at the hearing. The practitioner kept his senior lawyer for the appeal hearing before an independent tribunal. The practitioner then sought judicial review, but only at the last minute added the concern about ineffective representation.

Both the reviewing court and the Court of Appeal declined to accept this argument. They based their decisions on a number of considerations including the apparent strength of the case against the licensee, the fact that the hearing was otherwise procedurally fair, that such concerns are rarely accepted and that he raised the issue very late in the process. While the multitude of considerations makes it difficult to apply this case to others, the outcome does indicate that it will be a rare and strong case that will persuade a court that ineffective representation would make a discipline hearing so unfair as to nullify the results.

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