In July of this year, the Supreme Court of Canada removed counsel from the record because counsel had reviewed privileged doducments obtained through the execution of an Anton Pillar order. The case is called Celanese Canada Inc. v. Murray Demolition Corp.. As GFN noted at the time, Courts are more and more willing to kick counsel off a case because s/he has come into possession of privileged documents from the other side. This is in sharp contrast to the old days, where privilege was often viewed as irretrievably lost upon review by a third party, regardless of the circumstances under which the third party came to do so.

A recent case follows this trend of hard-nosed protection of privilege. It comes from the Ontario Superior Court, and is called 2000768 Ontario Inc. v. 514052 Ontario Limited.

A recent case has highlighted some ethical issues surrounding withdrawal of counsel from the record. Counsel attempted, unsuccessfully, to end the retainer. Her failure sounds a warning for counsel who don't take their ethical obligations seriously enough and/or fail to properly prepare for a withdrawal application.

Given the subject of our last blog entry, it makes sense to look at the ability of the Defence, as opposed to the Crown, to repudiate a plea agreement.

Plea agreements are exceptionally common in today's criminal justice system. To the chagrin of many, they are the grease that keeps the justice system moving. In the vast majority of cases, plea agreements are honoured by both sides. But occasionally one side or the other renegs. A recent summary appeal case where the Crown repudiated a plea agreement is R. v. R.N.M.. The Defendant was charged with dangerous driving. His counsel reached an agreement with the Crown whereby the charge would be dropped and he would plead guilty to the much less serious provincial offence of careless driving. The provincial charge was accordingly laid by the police, but when the time came to execute the plea agreement a new Crown counsel overruled his colleague and refused to go through with the deal. His expressed reason for repudiating the agreement was that his colleague was "very, very junior" and that the proposed plea was inappropriate in the circumstances.

Defence counsel sought to challenge the Crown's decision by bringing an abuse of process application but was unsuccessful at trial and the defendant was convicted of dangerous driving. On appeal, Justice Hill examined the issue of repudiation of plea agreements by the Crown and made several illuminating comments.

Yesterday the Supreme Court released its long-awaited judgment in R. v. Khelawon. Khelawon is the latest word from the Court on the law regarding hearsay evidence, and marks another milestone on the road to reform that started in the early 1990s with cases such as Khan, Smith and B.(K.G.). This line of cases is notable because the Court has widened the scope for admitting hearsay evidence, which can be roughly defined as evidence of an out-of-court statement adduced for the truth of its contents. The so-called "principled exception" established by these cases permits the admission of hearsay where the evidence is necessary and sufficiently reliable. What does Khelawon add to the law in this area?