In R. v. Kim the Court of Appeal found that defence counsel was in an impossible conflict in representing two co-accused. It thus struck out the Appellant's guilty plea and ordered a new trial. The case is an exemplar for defence lawyers of how not to represent co-accused. Conflicts are extremely common when co-accused are represented by a single lawyer (or by members of the same firm or lawyers sharing office space). Sometimes even a waiver of conflict after independent legal advice cannot remove the taint. In Kim, there was no ILA and no waiver, so the possibility that the problem could be so solved was not considered.

Last week we described a near-fight that took place between a Crown witness, Todd Kealy, and the defence lawyer who was cross-examining him, Reid Rusonik. The upshot of the imbroglio was that the judge ordered Rusonik to have no contact with Kealy, and another lawyer was retained to finish the cross-examination. Rusonik apparently remained on the case as counsel. The trial resumed with Kealy's continued cross-examination, but after a break the court learned that Rusonik had defied its order and made contact with Kealy, it appears because he was concerned that Kealy was out for revenge and might hurt Rusonik's family. Rusonik ended up taking the stand in order to provide this explanation to the court. As matter then stood at that point, the judge was considering whether to order a mistrial.

Last Thursday the Judge Mossip court took the only viable option left to her: she declared a mistrial.

We've been following a wild story out of Ontario, about a lawyer and Crown witness almost coming to blows in the courtroom. Kirk Makin first reported the case in the December 16, 2006 Globe & Mail. Two accused were being tried in Newmarket on a charge of attempt murder. The alleged victim was ex-biker Todd Kealy. Kealy testified as a Crown witness and claimed that shots had been fired at his car after an altercation in a bar. Defence counsel Reid Rusonik was cross-examining Kealy for one of the accused. The cross-examination was heated. After Kealy responded to a question by making what could be interpreted as a threat to Rusonik, Rusonik challenged Kealy to fight him outside the courtroom. Things degenerated further from there, including this stellar retort by Rusonik in response Kealy's admonition to "use your head": "any time you fuckhead, any time you little shit". The matter was adjourned so that everyone could cool down. Rusonik apologized upon the court reconvening, but Kealy had disappeared. The case was adjourned for a few more days, at which point Rusonik again apologized. The case was then adjourned until January 4, at which point the fate of the trial would be considered.

Today the Globe and Mail gave us an update.

In the late 1990s and early 2000s, there were a number of cases in which the Crown had made disclosure in electronic form but the defence sought production of hard copies. The Crown clearly has some discretion regarding the form in which disclosure is made, so these cases tended to turn on their facts. The key issue was whether the defence was, “meaningfully able to properly use the information … to rebut the Crown’s evidence and arguments and make all decisions required to exercise his or her right to make full answer and defence”. Usually, hard copies would be ordered by the court only if the format of the electronic disclosure was unworkable or particularly unwieldy.

A case that stands out among these "hard copy" judgments is a decision of the Ontario Provincial Court called R. v. Obront (1998), 39 W.C.B. (3d) 340. The case involved a complex fraud prosecution where the Crown had provided disclosure in electronic format. The defence sought hard copies of all of the disclosure. The submission of the defence was that some of the lawyers were “computer illiterate”. The Court held that it would be unfair to force defence counsel to train themselves in the use of computers or force the accused to pay for reproducing copies of all of the documents. Hard copies of the disclosure were thus ordered produced.

The "computer illiteracy" plea may have worked in 1999 - just. Does it hold any currency with courts today?

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 GFN lawyer David Layton joined a panel of four criminal lawyers and judges at the University of Toronto bridge week on professional responsibility. The bridge week, one of several dedicated to non-substantive law topics, focused on various aspects of professional responsibility including access to justice, legal ethics and the independence of the bar. This year was David's fifth at U of T. The criminal law component of the bridge week was developed by former Quebec Court of Appeal justice Michel Proulx, a leading defence counsel and jurist since the 1960s and a mentor to many in the profession including David.

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.

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 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.