The SCC has ruled inadmissible testimony from witnesses who have been subjected to hypnosis. So holds the recently released R. v. Trochym. The ruling is somewhat unusual; it's not often that the Court issues a blanket condemnation of evidence that has been used in Canadian courts for many years. On the other hand, the outcome is generally a sensible one, given the dangers that hypnotically "aided" testimony can present. What research has has been done suggests that hypnosis can result in a fuller memory of events, but that the fuller memory may include false ones. And it's often impossible to tell the true from the false parts of the "enhanced" memory. Another danger is that the witness who has undergone hypnosis may come to view her post-hypnosis memories as completely accurate, regardless of whether such is the case. Cross-examining a witness who firmly (but mistakenly) believes that she is telling the truth presents great difficulties for the Defence, and these types of witnesses can carry great wieght with the jury.

Criminalreview has nicely explained Trochym and some of its implications for hypnosis as a forensic tool. I want to touch on another area where we may feel welcome fallout from the judgement - the admissibility of eyewitness testimony.

Mr. Big police undercover operations involve the police posing as criminals in order to obtain a confession from a suspect. The suspect is usually enticed to confess by inducements ("if you own up to some crimes we'll let you into our lucrative gang") and/or threats ("you better come clean with us because the our boss doesn't take kindly to liars"). Invariably these operations are run in murder cases where the police otherwise lack sufficient evidence to lay a charge. The stakes in terms of convicting the guilty or framing up the innocent are extraordinarily high.

We've discussed Mr. Big cases in past postings. Defence counsel have taken many apporaches in trying to exclude Mr. Big confessions. None have succeeded. The latest failed attempt comes in the case of R. v. Osmar, a judgment of the Ontario Court of Appeal.

The Supreme Court of Canada recently granted leave to appeal in a BC case that raises important right to silence issues. It's worth watching closely.

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.

We have already written about the landmark decision in Khelawon, released December 14 of last year. There, the SCC overruled two earlier judgments and held that when assessing the threshold reliability of a hearsay statement under the principled exception a trial judge can properly consider the presence or absence of any corroborating facts that exist external to statement. Our Court of Appeal has wasted no time in taking up the cause. In T.G.N., released early last week, the Court used Khelawon to reject the three appellants' contention that the trial judge had erred by using corroborating evidence to help find that threshold reliability had been established. If the judgment had come out even a month before, the result in this respect would have been very different.

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.

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?

Yesterday, the Supreme Court of Canada affirmed the power of the jury to acquit an accused even where the evidence allows for no other conclusion but that he is guilty. In R. v. Krieger, the accused was charged with unlawfully producing cannabis. He freely admitted having done so and there appeared to be no viable defence. The trial judge directed the jury to return with a guilty verdict and persisted in this direction even when some jurors expressed discomfort at the result. The Supreme Court held that the judge's direction was in error, and that trial judges have no power to direct a guilty verdict - to do so effectively undermines the right to a jury trial protected by s. 11(f) of the Charter.

An important concept underlying the decision in Krieger is that of "jury nullification"; i.e. the ability of a jury to acquit an accused on the basis that the law under which he or she is prosecuted should not be followed in the particular case. Defence counsel are not allowed to ask for an acquittal on this basis but our courts have never denied that the nullification power exists. Krieger simply affirms that power, albeit implicitly. The result does not, however, mean that we can expect a surfeit of nullifying acquittals. It is only in a very rare case that jurors will ever do so. In Krieger itself, the accused suffered from illnesses and used cannabis to ease his pain. In Canada's most famous case of jury nullification, Henry Morgentaler was acquitted of abortion-related charges in cricumstances that made it clear that the jury was refusing to apply the law. So, while Krieger is an interesting case that affirms the important role of the jury in our criminal justice system, it is unlikely to lead to any palpable change in the way that the system operates.

The Court of Appeal has recently posted reasons in the matter of an application for the appointment of counsel in R. v. Ellard. Ms. Ellard is the best known of several young defendants charged in the homicide of teenager Reena Virk. She has had three trials to date: the first ended in a conviction that was overturned on appeal, the second ended in a controversial mistrial, and the third resulted in a conviction earlier this year.

Last week our Court of Appeal put an end to a faulty and unfair jury instruction that has plagued our province for far too long. The result will be fairer jury charges for accused persons and, as a natural by-product, a reduced risk that the justice system will result in miscarriages of justice. What jury instruction was in issue, and why was it so unfair? The issue concerns statements made by the accused that contain both incriminating and exculpatory elements, and are sometimes loosely referred to as a "mixed statements".

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 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