Two Cases, Two Different Approaches; Ineffective Assistance of Counsel and the Questions Left Unansw
For many of us, the last time we thought about the phrase stare decisis (Latin: “standing by things decided” 1) was in law school, but the concept lies at the heart of the common law tradition: “the legal principle of determining points in litigation according to precedent.”2 It is the basis of being able to predict what a court will do. It allows lawyers to provide opinions to clients; and also how we prepare our documents, including factums and such. Precedents inevitably must change with the times; cleaving to the concept of stare decisis means that precedents will change, but only in small increments, and not suddenly and unpredictably.
When the courts treat a fact situation differently than they had before, it is often confusing. Does that mean that this is the new approach or an outlier? This is especially so when the court makes no comments on why they are treating a case differently than it last did. This sudden change in the way courts treat a set of similar facts is found in the Manitoba Court of Appeal’s treatment of two cases: R v Zamrykut 3 and R v Le.4
In the Zamrykut 5 case, the Court of Appeal granted a new trial on a claim of ineffective counsel. This is a novel case because claims of ineffective counsel are rare and, rarer still, successful. I submit that the Manitoba Court of Appeal correctly cited the law for proving ineffectiveness, but then failed to follow it in the way they had in 2011 in the Le case,6 a case that the Court considered just six years earlier.
1 Oxford English Dictionary, online: <https://www.en.oxforddictionaries.com/english>
3 R v Zamrykut 2017 MBCA 24.
4 R v Le 2011 MBCA 83.