Another point of interest in Osmar is the decision to uphold the trial judge's exclusion of expert evidence pertaining to the existence of and factors that contribute to false confessions. Trial counsel had engaged a big fish to testify on the point, leading expert Dr. Richard Ofshe from the United States, but to no avail. What is interesting about the Court of Appeal's approach on this point is that the possibility of calling such a witness in certain circumstances is not rejected. The Court's reasons can be read to provide guidance that will allow defence counsel to better focus applications to call expert evidence in the future. The door remains open on this issue, and we may yet see Canada follow the U.K. in routinely allowing expert evidence of false confessions.

How did the issue arise, and why was the conflict so obvious?

Oddly, defence counsel had little recollection of the details surrounding the movement of monies used to post bail and pay the retainer. It appears from the judgment, however, that Choi or an associate of Choi's may well have paid the Appellant's legal fees and that Choi provided the $10,000 cash used to post the Appellant's bail. The case was resolved when the five mules entered guilty pleas and received sentences of three years (plus one year dead time). The charges against Mr. Choi were stayed, as the Crown ultimately concluded that the case could not be proved against him.

The conflict in Kim arose because on the facts there was a real possibility that, if properly advised, the Appellant would have instructed his counsel to seek a deal with the Crown whereby he would receive a lesser sentence in return for providing information or testimony against Choi. Indeed, in his affidavit material and testimony before the Court of Appeal the Appellant indicated that Choi had recruited him and threatened his life and the lives of his family unless he went through with the scheme. He also said that Choi told him that the contraband was ground bull horn for which he would receive only a fine if caught. A sentence of two years would have allowed the Appellant, who was a landed immigrant, to avoid deportation, something that he was eager to do. A sentence of three years did not.

The Court of Appeal had no trouble finding that a conflict existed and ordered a new trial. The Appellant may well have wanted to make a deal with the Crown. He may have wanted to run the duress defence, and to say that in any event Choi had misrepresented the contents of the packages. Defence counsel could not go down any of these paths without harming his other client, Choi. The situation was aggravated by the fact that the Appellant was not terribly proficient in the English language and was somewhat at sea in dealing with the criminal justice system. He was especially dependent upon counsel in these circumstances and was certainly not equipped to recognize and extricate himself from the hopelessly conflicted retainer.

Though never expressly stated by the Court of Appeal, the fact that Choi or his associates were likely paying for the Appellant's defence leads to the rather unsavoury implication that counsel acted in the interests of the client who was paying the bills, at the expense of his other client's best interests. On the other hand, the Court went out of its way to state that defence counsel's ethics and competence were not in question, and that he did no more than err in assuming that the Appellant concurred in the course of conduct advised and had given proper instructions. It might have been better had the Court provided some of the facts supporting this conclusion. It is hard to see how it can be justified on the facts set out in the judgment.

Is it always inadvisable for a single counsel to represent co-accused? No. But the risks often outweigh the benefits, and some courts warn against ever embarking down this road. At a minimum, counsel must ensure that each client has ILA and provides a complete waiver, otherwise the enterprise will be doomed. And, as Kim so clearly shows, it is no answer to say, as counsel suggested on the appeal, that the conflict only arises once the matter gets to trial. Conflicts between co-accused can arise from the moment the retainer starts. Waiting until trial to address the problem is not an acceptable response. As Mr. Gardiner says to Elizabeth Bennett, "any way you look at it, the temptation's not worth the risk".

Moreover, when Rusonik engaged the witness in such a manner he became personally, as opposed to professionally, involved in the case. From that point onwards, the judge could have no confidence that Rusonik's own views, as opposed to his duty to his client, would not colour his submissions. More than this, it appears that Rusonik's credibility in terms of his justification for treating Kealy as he did was in issue (otherwise, why did he take the stand to explain?). He could hardly stay on the case in such circumstances.

One wonders why Rusonik felt compelled to act as he did. He is an experienced defence counsel, who should have known better. His outburst harmed his own reputation and more importantly his client's case. Surely having the key Crown witness utter what appeared to be a threat to cross-examining defence counsel was a boon to the defence. Provoking a mistrial by challenging the witness to a fight and breaching a court order wiped away any benefits for the client.

A final point. At the mistrial application, as reported in the media, Crown counsel noted that Kealy had in fact given no evidence harmful to Rusonik's client in his testimony in chief. If this is true, the entire cross-examination was ill-considered. Keeping quiet would have been the wise tactical move. It is hard to understand why this course of action was not followed. Will there be a complaint to the Law Society of Upper Canada? To ask the question is to answer it.

In Greer, the Crown had made disclosure in electronic form. One of the defence counsel applied for an order that the Crown pay for laptop computers, software and computer training in the use of electronic disclosure, or in the alternative provide hard copies of the 250,000 pages of documents that constituted disclosure. Justice Powers had little trouble dismissing the bulk of the application. He ruled that counsel are expected to be familiar with the use of computers and electronic disclosure, and that computers and document management software should be part of defence counsel's overhead as opposed to something that the Crown must finance.

In dismissing the application Justice Powers made a further point that bears stressing. Not only is counsel expected to be able to use elctronic disclosure, but disclosure made in electronic format is of much more use to defence counsel than would be hard copies of the same material. This point is really the key holding in Greer. Anyone who has worked on a document-heavy case knows that keeping track of the information in an efficent and effective way can only be accomplished through document management software. In such cases, the failure to use computers constitutes a failure to provide competent service to one's client.

A last point. The computer illiterate counsel in Obront was Eddie Greenspan. Greenspan is counsel for Conrad Black on fraud-related charges to be tried in Chicago in March of this year. Black's case is unquestionably document-heavy. Is there any chance that Greenspan is using only paper copies of disclosure? Is there any chance that the U.S. prosecutor has provided the defence team with computers, software and training? One suspects not. If counsel isn't able to work with computers or lacks document-management software, the answer is not to bring a disclosure application; it's to decline any cases involving a substantial body of disclosure.

At some point after the discoveries counsel for the plaintiff realized his mistake and brought an application to recover the privileged documents and remove counsel for the defendant from the record.

Justice Van Melle allowed the application. She had no qualms about holding that privilege was not lost simply because a third party came into possession of the documents. Indeed, this point was accepted as obvious. The real question was whether counsel for the plaintiff had in effect waived privilege by virtue of his behaviour and whether counsel for the defendant had acted appropriately upon receipt of the documents.

Van Melle J. held that privilege was not waived, and that counsel for the plaintiff genuinely did not realize that the documents were in the possession of the defendant. In doing so, she cut counsel some slack. In particular, his failure to object when the representative of his client was being asked questions about the documents at discovery suggests waiver. But she accepted that counsel made a mistake, as opposed to having realized and accepted that the documents were in the possession of the opposing party. The holding on this point is of interest because it shows that even fairly severe negligence by the party claiming the privilege does not necessarily lead to waiver.

The real problem on the facts was that counsel for the defendant failed to take proper steps upon realizing that he was in receipt of the documents. The ethical rules in several provinces, including B.C. (Rule 15, Chapter 5, Professional Conduct Handbook), require counsel to inform the other side immediately and not to review the documents pending a resolution of the privilege issue. A direct approach here would have clarified immediately whether privilege was being claimed. 2000768 demonstrates that waiting in the weeds, and even darting out of the weeds now and then, is a risky business.

The price that defence counsel - and his client - paid for this strategy was severe. Justice Van Melle granted the application to remove him from the record. In doing so, she applied the test in em>Celanese Canada Inc. v. Murray Demolition Corp., which involves looking at factors such as how the documents came into counsel's possession, steps taken by the privilege-holder to retrieve the documents upon recognition that privilege was at risk, review made of the material, the contents of the privileged communication and the degree to which they are prejudicial, the stage of litigation and the potential effectiveness of any firewall set up by the recipient. Most importantly, she adopted the Celanese approach whereby the onus is on the recipient to present clear and convincing evidence to rebut the presumption that use of the privileged information would occur at trial. Counsel for the defendant was unable to do so, and so was turfed from the case.

Justice Van Melle was not unappreciative of the harm that her order caused. The case was ready to be litigated, and indeed the motion was heard on the first day of the trial. Removing counsel was a heavy blow indeed for the defendant. But the fault for this predicament lay with defendant's counsel, and so his client had to bear the consequences. As Van Melle J. stated: "... had the proper procedures been followed when [counsel for the defendant] discovered that he was in possession of documents over which solicitor-client privilege had been claimed, we would not be dealing with this issue on the eve of trial."

The message sent by Celanese, 2000768 and a growing number of Canadian cases is clear: counsel who receives documents that might be privileged must immediately take steps to clarify the matter with opposing counsel and must not review the documents in the meantime. Failure to do so can be very detrimental to the interests of counsel's client. Failure to do so can also be very detrimental to the interests of counsel. Not only does s/he lose a client, but there is a good argument to be made that the burden in terms of cost should fall on counsel himself or herself, and not on the client. In fact, a complaint to the law society in such a case would not be out of place.

A word of advice to the Law Society of Upper Canada: consider adding an ethical rule concerning what to do where a lawyer receives privileged documents from the other side. It is true that the case now now provides a clear answer to this situation. But providing additional guidance in the rules of professional conduct is easy to do, and may help to prevent disaster for lawyers who find themselves in this position, not to mention their clients. Following the lead of B.C. and Alberta on this matter makes sense.

Justice Blais refused the application. In doing so, several points emerged as determinative. First, he affirmed that counsel requires the consent of the court to withdraw from a case. This point yet again confirms the law in this area, and yet again marks out British Columbia as the only jurisdiction in Canada where courts continue to hold otherwise. Second, Blais J. noted that counsel had waited until the eleventh hour to bring the application, and provided no explanation for this delay. The cautionary point here is that counsel must act quickly in getting off the record, and if the application is brought late in the day an effort should be made to explain why steps could not be taken earlier. Failure to do so is problematic because late withdrawal typically causes harm to the client, the other litigant and the judicial system.

Justice Blais's third theme, and the most interesting to GFN, came through like a foghorn in his repeated observation that counsel provided no real explanation as to why she felt it necessary to get off the record. He concluded with the rather stern admonition that "when a lawyer wishes to cease representation in a case, he mst state grounds for doing so, and those grounds must be reviewed by the Court". The failure to articulate a clear reason for seeking to withdraw in combination with the lateness of the application was a fatal combination.

While the judgment in Singh may be correct on the facts, a caveat must be imposed on Justice Blais' suggestion that counsel need state the grounds for getting off the record. Counsel can certainly do so if there is no risk of disclosing confidential information. S/he can also do so if the client waives confidentiality with respect to the information to be disclosed. But the matter becomes difficult where the reasons for withdrawing involve confidential matters and disclosure would violate solicitor-client privilege. Numerous cases, codes of professional conduct and ethics texts make clear that counsel cannot breach client confidences in setting out the grounds for withdrawal. The result may be that counsel seeking to withdraw for good reason is placed in a bind. Because s/he cannot articulate a detailed justification to the court, the court is unable to fully assess the merits of the application. The risk is that the court will dismiss the application and counsel will be forced to stay on the case despite the existence of a problem that undermines the effectiveness of the representation.

What might counsel have done to avoid this problem in Singh? Assuming that there was a good basis for getting off the record (something that Justice Blais clearly had his doubts about), she should have taken one or more of the following steps.

First, she should have asked her client for permission to reveal the nature of the stated conflict of interest. In many instances, revealing the nature of a conflict involves no harm to the client. However, if any risk of harm existed, she would have been well-advised to obtain independent legal advice for her client with respect to the matter.

Second, it might have helped to have separate representation for the client at the hearing. Perhaps the client felt that the conflict was serious enough that the representation was compromised and wished to take this position at the hearing. It is also possible that the client in fact wished to terminate the retainer, in which case his lawyer would be released from her obligation without the need for the consent of the court.

Third, counsel should have provided information as to the advice received from her law society. The receipt of advice in support of withdrawal will carry great weight with a court, whereas the failure to disclose the law society's opinion allows for the inference that the opinion was adverse to counsel's position on the application.

Fourth, counsel should have considered retaining someone else to argue the application. Doing so provides the court with some assurance that the application is not totally without merit. Moreover, it avoids the difficulty that comes when counsel's reasons (or lack thereof) for getting off the case are called into question. Arguing an application where one's own credibility is in issue is an untenable position.

Finally, counsel should have made clear to the court that she could not reveal the precise reasons for her application without divulging confidential information. Alerting the court to this legitimate problem might well have earned her a more sympathetic hearing. Certainly, her failure to provide an explanation for her desire to get off the record would not have weighed so heavily against her.

Singh is an excellent example of an ill-prepared application that ended in disaster. In fairness to counsel, it may be that her experience in other courts or other jurisdictions led her to expect a less searching assessment of the merits of her application. But this excuse only goes so far. Courts are justified in expecting counsel to provide a good reason for getting off the record, especially when the application is brought at the last minute and will result in inconvenience to the client and the court. The failure to do so, or to at least explain that privilege precluded counsel from providing a full explanation of the problem, ensured disaster.

We've already seen that the Crown is severely restricted in its ability to reneg on a plea agreement. The Martin Committee Report and cases such M.N.R. explain why this is so. The Alberta Code, while slightly less clear on the matter, seems to lean in the same direction. But unlike the Martin Report, the Alberta Code plainly leaves wide latitude for the defendant to repudiate a plea agreement. This approach is justified because the defendant has a constitutional right to decide how to plead in a case. Forcing the Defendant to follow through with an expressed intention to plead guilty would almost certainly be held to violate this right. The decision is simply too important to warrant pinning a Defendant down in this way.

But this is not to say that Defence counsel can be cavalier about plea agreements. While the client has the right to change his or her mind, Defence counsel should otherwise treat the agreement as binding. A failure to do so may be unethical, and in any event risks exposing the client to harm and damaging the lawyer's reputation in the legal community.

As an aside, where the client does change his/her mind and repudiate a plea agreement, the common course is for defence counsel to withdraw from the case. Doing so is the best course of action where the client's change of heart amounts to rejecting the lawyer's advice with respect to the plea. But apart from a breakdown in the relationship or circumstances that might suggest a conflict of interest, withdrawal is not always necessary. GFN is aware of an unreported case where Crown counsel sought to have the defence lawyer removed in the wake of a reneged upon plea agreement because, it was suggested, the defence to be advanced at trial was inconsistent with the facts that the client must have conveyed to defence counsel in agreeing to the plea agreement. But this ingenius argument was rejected, as it should have been. In the absence of information as to what has passed between counsel and client, it will usually be impossible to say whether the lawyer is fixed with knowledge that makes it unethical to pursue a particular defence. It may well be, for instance, that the client admitted to the incriminating facts in agreeing to the plea resolution but in repudiating the agreement told counsel that he had falsely done so because he believed that a guilty plea was in his best interests. In such a case there may be nothing wrong with defence counsel conducting the case based on current information from the client and not the previous, now recanted, admission.

It's thus clear that the Crown and defence are not treated the same way when it comes to the repudiation of plea agreements. The Crown is largely restricted in its ability to reneg, while the defendant always has the option of pulling out, at least up to the point where s/he enters the plea in court. While defence counsel need not withdraw in every case where his or her client has repudiated a plea agreement, the advisability of doing so should be considered.