A long journey came to an end this July with the publication of the consolidated CBA Code of Professional Conduct. The journey started around the turn of the century with the announcement that the Code would be studied with a view to undertaking revisions. The CBA Standing Committee on Ethics and Professional Responsibility published consultative reports in 2002 and 2003, and a final report in March 2004. Numerous changes were adopted at the CBA's annual meeting in August 2004 and the mid-winter meeting in 2006. It is only with the publication of the consolidated Code that these changes are reflected in the document available at the CBA website and in hard copies.

The CBA is a professional organization, as opposed to a regulatory body like the Law Society of British Columbia or Ontario's Law Society of Upper Canada. Yet it holds a storied place in the development of Canadian ethical codes. The CBA published the first such code in 1920, and for a great many years set the standard for the codes used by Canadian law societies. By the late 1990s, however, the CBA's place at the forefront of professional regulation was suffering. Many law societies, most particularly Alberta, British Columbia, Ontario and Nova Scotia, had extensively revamped their codes, and in doing so had moved away from the CBA template. By the time the CBA adoped the recent revisions, it had been almost 20 years since the Code's last overhaul. Moreover, the vast majority of the case law, text and article references in the Code were from the 1950s and 1960s. The new CBA document, while not particularly ambitious in scope, and adhering more or less to the format of the previous version, is thus a welcome development in Canadian legal ethics.

To access the CBA Code of Professional Conduct click here.

A common ethical problem for criminal lawyers is whether it is permissible to represent a client on a guilty plea, which by definition requires the client to admit guilt in open court, even though the client maintains innocence in private. There are various arguments for and against, which are set out in the text Ethics and Canadian Criminal Law, by Michel Proulx and David Layton. Many lawyers and judges oppose counsel acting in such circumstances. One concern is that the client may in fact be innocent, meaning that counsel is aiding in a miscarriage of justice. Another is that this sort of guilty plea misrepresents to the court that the client feels remorse. The leading case arguing against counsel acting for the client on such a plea is R. v. K.(S.) (1995) 99 C.C.C. (3d) 376 (Ont. C.A.). By contrast, Proulx and Layton suggest that in some limited cases a lawyer may be justified in acting, most especially where there is a strong factual basis for concluding that the client is guilty and counsel does not submit to the court that the plea reflects remorse. But this is a minority view.

A possible alternative for counsel where a client insists on pleading guilty but privately asserts innocence is to conduct what is called a Fegan-plea, named after the decision in R. v. Fegan (1993), 80 C.C.C. (3d) 356 (Ont. C.A.). This involves the client pleading not guilty. But the defence permits the Crown to lead its entire case by way of a statement of fact, without the need to present any live witnesses. No defence is called, and the inevitable result is that the defendant is found guilty. This process allows the defendant to gain some sentence discount for saving the time and expense of a trial but avoids a suggestion of false contrition. In June, the British Columbia Court of Appeal endorsed the Fegan-plea in a case called R. v. Duong.

The decision how to plead is one of the most imporant that a defendant will make in a criminal matter. Even with excellent legal advice, he or she may be torn as to the proper plea. Should he or she plead guilty and receive the benefit of a more lenient sentence for doing so? Or should he or she run a trial and risk the associated cost in terms of time, money and possibly a harsher punishment if convicted? Given the difficulty of the decision, it is not surprising that a defendant sometimes seeks to retract or "strike" a guilty plea. Courts are wary of striking pleas, and only do so if the defendant can prove that the plea was not voluntary, unequivocal or informed, or there is some other valid reason for expunging the plea.

R. v. Harmon, a June 28 decision of the Saskatchewan Provincial Court, provides a good example of a defendant wrestling with the decision whether to plead guilty. He initially agreed to do so, but the night before the guilty plea was to be entered told his lawyer that he had changed his mind. The lawyer indicated that it was a little late in the day to be doing so, given that arrangements had already been made with the prosecutor. A guilty plea was entered the next day, and the sentencing was adjourned. Outside of court, the defendant again expressed to his lawyer a desire to plead not guilty. The lawyer said that if he wished to do so they should reattend court immediately, and that a new lawyer would have to act on the application to strike the plea. The defendant took no action until several months later, when he appeared with a new lawyer and sought to expunge the plea prior to sentencing.

On June 1 Justice Stromberg-Stein rendered a short decision on the admissibility of a statement by one of the defendant's in the high-profile kidnapping case of R. v. Poon and Wong. When arrested, Mr. Poon said to the police, "can you protect my family? They know where I live." At trial, the defence of duress was asserted. That is, Mr. Poon testified that he was forced by threats of serious violence to participate in the kidnapping. In support of this position, the defence wished to elicit from Mr. Poon his earlier statement to police. But Justice Stromberg-Stein refused to allow Mr. Poon to testify about the statement. She noted that the defence is generally not permitted to lead the defendant's out of court statements in evidence, and that in addition prior consistent statements by a witness are usually inadmissible. The statements at issue in Poon and Wong fell into both categories and were thus excluded from evidence. Mr. Poon was convicted of the charge in July.

Poon and Wong is an interesting decision because it illustrates the complex interplay between two rules of evidence. To begin with there is the hearsay rule. Hearsay statements are statements made out of court, which one party seeks to use for the truth of their contents. They are usually inadmissible because of reliability concerns, especially where the person who made the statement is not subject to cross-examination. Yet there are a number of exceptions to the hearsay rule. One applies to out of court statements by the accused if, and only if, the statements are led in evidence by the prosecution. This exception is based on the notion that the accused cannot be heard to complain about the reliability of a statement that emanated from his or her own mouth, or about the inability to cross-examine himself or herself. Because the exception to the hearsay rule applies only for the Crown, the accused usually cannot lead his own out of court statement in evidence. It should be added, however, that where the Crown leads an out of court statement by the accused, the statement is admissible for all purposes and can be used by the accused as part of the defence. We thus have a situation, at first blush nonsensical but on further reflection capable of finding support in the policies underlying the hearsay rule, where the exact same statement is admissible if led by the Crown but is not admissible at the behest of the defence.

Gibbons Fowler Nathanson legal assistant Aurora Mendoza made the cover of the yesterday's Vancouver edition of the Metro News. To see Aurora leaving work, looking very relaxed and happy, click here.

In todays Globe and Mail, p. S1, Shannon Kari writes about so-called Mr. Big cases. Mr. Big is the moniker given to undercover operations in which the police pose as criminals in order to obtain a confession from a suspect. The ploy is usually confined to murder investigations where the police lack sufficient evidence to proceed with charges. Mr. Big operations are especially popular in Western Canada, and a great many have been conducted in B.C. over the last 15 years or so.

Defence lawyers have from the beginning expressed serious concern about the reliability of confessions obtained via the Mr. Big conceit. In essence, the confessions are enticed from the suspect with a promise of money and power in a criminal organization. While such inducements would render a confession to non-undercover police officers inadmissible at trial, courts have refused to apply the same rule to Mr. Big statements because the suspect does not believe himself to be speaking to a person in authority (see R. v. Grandinetti (2005), 191 C.C.C. (3d) 449 (S.C.C.)). Other court challenges to the admissibility of Mr. Big confessions have met a similar fate, as described in an article by Peter Schmidt and Richard Fowler entitled, "Role-Playing RCMP Style: General Overview of Defence Challenges to Mr. Big Confessions and Areas of Other Possible Challenge", presented at a Trial Lawyers Association of British Columbia Conference in September 2005.

The Manitoba inquiry into the conviction of James Driskell for the 1990 murder of Perry Harder has been underway since July 18. Mr. Driskell served 13 years in prison before his conviction was quashed in 2005.

Yesterday, Mr. Driskell's trial lawyer told the inquiry that he did not receive disclosure from the Crown that a key prosecution witness had sought to obtain immunity on an arson charge in exchange for his testimony. Documents filed with the inquiry showed that the lawyer had repeatedly asked prosecutors whether any of the Crown witnesses had ulterior reasons for testifying against his client. In February 1991 prosecutors wrote to counsel indicating that police files disclosed no such motive. Yet two months earlier the witness' lawyer had written to the prosecutions office with a list of demands, including that he not be charged with any crimes. This letter was not disclosed to defence counsel, and it now appears that the witness was indeed provided with the sought-after immunity.

This aspect of the Driskell inquiry underlines the great importance of the Crown disclosing to the defence all relevant information in its possession or control. The leading case that establishes the right of a defendant to receive such disclosure is R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.). It remains to be seen exactly why relevant information concerning a possible motive for the witness to lie was not disclosed to the defence in the Driskell case. What is clear, however, is that the Crown had an obligation to do so.

Unfortunately, failure to disclose is a common contributing factor in miscarriages of justice. Several commissions of inquiry, including those examining the wrongful convictions of Donald Marshall, Guy Morin and Thomas Sophonow, have criticized Crown counsel for failing to make full disclosure.

For a recent media report on the Driskell inquiry click here.

For a detailed review of disclosure from police to Crown in the Driskell case, conducted at the request of the Manitoba Attorney General by John Enns, a retired provincial court judge, click here. For another review by Mr. Enns, this one concerning disclosure from the Crown to the defence, click here. Both reviews identify serious flaws in the disclosure process.

Ethics and Canadian Criminal Law, a text co-authored by David Layton, was recently quoted in a case dealing with the withdrawal of counsel in a criminal matter. In Cunningham v. Lilles, a decision of the Yukon Supreme Court decided on June 16, 2006, defence counsel brought an application to be removed as counsel of record after Legal Aid cancelled the client's coverage. Justice Gower embarked on a lengthy discussion as to whether the court's permission to withdraw is required in Yukon, as is the case in most Canadian provinces, or whether instead defence counsel has an absolute right to withdraw regardless of the court's views. The latter position is often said to flow from a B.C. case called Leask v. Cronin.

Justice Gower quoted from Ethics and Canadian Criminal Law in setting out the reasons why courts should maintain some degree of supervisory jurisdiction over the withdrawal of counsel, including the need to ensure good management of criminal trials and to protect the client's interests. Justice Gower also quoted from the text to the effect that Leask v. Cronin may in some circumstances provide judges with the power to prevent counsel from withdrawing. Ultimately, Justice Gower concluded that counsel in the Yukon do require permission of the court to withdraw. He added that in cases where there is a breakdown in the client-lawyer relationship, the application to withdraw will be granted in all but the most exceptional circumstances. Where, however, the application is based on financial issues between client and lawyer, the request will be granted or denied based on an assessment of any resulting prejudice to the client and the administration of justice.

To read the judgment in Cunningham v. Lilles click here.

On August 3 the Court of Appeal rendered judgment in the murder case of R. v. Ertmoed. The facts are familiar to many because of the extensive media attention devoted to the disappearance of the victim, 10-year old Heather Thomas, and the subsequent arrest of Mr. Ertmoed. The two grounds of appeal were related. The first was that defence counsel was incompetent. The second was that frequent interventions by the trial judge "to criticize, rebuke or admonish defence counsel" compromised the credibility of the defence in the eyes of the jury.

Both grounds were dismissed by the Court of Appeal. First, the Court held that the alleged incompetence, which consisted of questions in cross-examination "that bore no apparent relevance to any material issue at trial, [and] that were repetitious and unnecessarily time-consuming", as well as some dubious tactical decisions, had not prejudiced Mr. Ertmoed's defence. Second, the Court ruled that the judge's many interventions, described as "pointed, sharply critical, and occasionally sarcastic", were not surprising given "the prolix, time-consuming and often unproductive nature of defence counsel's cross-examinations". The judge had a duty to control the trial process and to protect witnesses from repetitious and irrelevant questioning, said the Court. Moreover, the interventions did not impair the ability to make full answer and defence and did not impugn counsel's honesty or integrity. Finally, the judge's charge cautioned the jury (who during the trial had sent the judge a note complaining about the "mind-numbing" cross-examination) against drawing any adverse inference from counsel's conduct.

The Ertmoed case demonstrates once again that allegations of incompetence of counsel and improper interventions by the trial judge only rarely result in success on appeal. The appellant must show not only that defence counsel or the judge, as the case may be, acted improperly, but also that the impropriety resulted in prejudice to the defence. Appeal courts are clearly reluctant to second-guess either defence counsel or trial judges, and even where prepared to do so must be convinced that trial fairness was undermined.

To read the Ertmoed decision, click here

On July 27 the Supreme Court of Canada released its decision in Celanese Canada Inc. v. Murray Demolition Corp. Celanese Canada Inc. is not a criminal case, but the judgment has implications for all lawyers and clients in Canada. A law firm acting for the plaintiff in an industrial espionage law suit obtained and executed an "Anton Pillar" order, which operates like a private search warrant and is used to seize documents from a defendant without prior notice. In seizing the documents, the plaintiff's lawyers gained access to and reviewed materials that were covered by solicitor-client privilege as between the defendant and its lawyers. The Court held that the plaintiff's lawyers had no right to view these materials and failed to take adequate steps to avoid doing so. But the Court went further still and ruled that the plaintiff's lawyers could no longer act on the case. Their exposure to the privileged materials raised a real risk that they had obtained information that could be used to the detriment of the defendant in the proceedings. The only appropriate remedy, in the circumstances, was an order forcing their withdrawal as counsel for the plaintiff.

The decision in Celanese Canada Inc. shows just how seriously our courts view violations of solicitor-client privilege, and the lengths to which they will go to protect clients from prejudice caused by the unsanctioned release of such information. It is also in tune with the view that a lawyer who comes into possession of privileged documents relating to a non-client must not read (or stop reading) the documents, immediately return them to counsel for the privilege-holder and indicate the extent to which he or she is aware of the documents' contents. This approach is adopted in Rule 15, Chapter 5, of the B.C. Professional Conduct Handbook, but is found in few other Canadian ethical codes.

You can access the Celanese Canada Inc. case by clicking here.

The July 21, 2006 edition of the Globe and Mail reports that, despite widespread perception to the contrary, incidents of homicide, car theft, counterfeiting and overall youth crime were all down in British Columbia for 2005 (see p. S1). The article offers commentary from Richard Fowler, who says, tongue in cheek, "I wonder if the chief of police will ask the City of Vancouver for a smaller budget next year". Richard also offers the view that rather than rely on the judicial system as the primary response to crime, the better option is to implement social programs and improve infrastructure with a view to crime reduction.