Defending the Guilty Client at Trial

DEFENDING THE GUILTY CLIENT AT TRIAL 2016 CLA Spring Conference – June 4, 2016 Michael D. Edelson C.S.

DEFENDING THE GUILTY CLIENT AT TRIAL 2016 CLA Spring Conference – June 4, 2016 Michael D. Edelson C.S. INDEX PART I: Introduction

1-2

Historical Background

2

Constitutional Considerations

2-5

Ethical Considerations: LSUC Rules of Professional Conduct

5-14

The Defence of Persons Suspected or Known to be Guilty: The Ethical Rationale

14

Strong and Weak Adversarialism: An American Perspective

15-21

The Canadian Perspective

21-25

Guilt of Client Revealed at or During Trial

25-29

PART II: “Ain’t It Fun Living In The Real World? Ain’t It Good Being All Alone?”

(Paramore)

29-30

Risk Assessment

30-31

Risk Mitigation

31

Risk Management

32-35

Case Studies/Critical Issues Relating to Legal Ethics in Criminal Law

35-41

PART III: Defence Strategies

41

Common Law Exclusionary Rules

42

The Common Law Voir Dire to Determine Voluntariness of Statement

42-45

Expert Witness Evidence/Opinion: Admissibility

45-47

Cross-Examining an Expert Witness

48-50

Attacking Searches and Interceptions

50-51

Attacking the Failures to Comply with Statutory Requirements for Admissibility

51-52

Motive

52-57

Police Procedures/Policies

57-58

Effective Use of Criminal Procedure (e.g. severance)

58-59

Affirmative Defences

59-60

Tactical Approaches Restricting Crown Questioning

60-61

Conclusion

62

BIBLIOGRAPHY

63-68

DEFENDING THE GUILTY CLIENT AT TRIAL 2016 CLA Spring Conference – June 4, 2016 Michael D. Edelson C.S. PART I: Introduction: A friend and colleague who was formally a senior Crown counsel in Ottawa was fond of saying: “Any Crown can convict guilty people; it’s those tricky innocent guys who are hard to get.”

Coincidentally, the topic of this presentation is very similar to that of Chapter 1 of the Second Edition of Ethics and Criminal Law authored by David Layton and the late Michel Proulx (formerly of the Quebec Court of Appeal following a long career as defence counsel).

This chapter is an excellent starting point for counsel seeking guidance concerning the ethical and practical considerations related to this very thorny topic.

As indicated in the attached article which I wrote, entitled “Why defence lawyers are never hired by the guilty”, most counsel engaged in this work have never been asked “How can you defend that guilty person?” Frequently more colourful descriptions of the client are used such as: “criminal,” “scumbag,” “monster.”

However, the central issue examined in chapter 1 has a more restricted context: “How can counsel ethically fight against the conviction of a client he knows to be guilty.”1 This topic necessitates an examination of the historical, ethical, legal, constitutional and practical considerations that academics and practitioners as well as Courts at all levels have grappled with since the early 1840’s.2 My main focus will be on practical advice and approaches which can be applied to this difficult question in your daily practices of criminal defence. I have attached a considerable list of references to articles by ethicists and practitioners as well as some case law on the legal underpinnings of the key areas of concern. Interestingly, some of these articles by academics are not disseminated free of charge. Many require access to journals and other resources which is

1

David Layton & Michel Proulx, Ethics and Canadian Criminal Law, 2nd ed. (Toronto: Irwin Law Inc., 2015) at p.

15 [Layton & Proulx] [emphasis added].

2 See e.g. R. v. Courvoisier (1840), 9 C & P 362, 173 ER 869 [Courvoisier] [Where the ethics of defence counsel became the subject of considerable public scrutiny and academic and practical debate].

1

restricted to students and academics. Insomuch as is possible, links are provided to facilitate access to these materials (see Bibliography).

Historical Background: Under the heading “Genesis of the Present Rules,” Layton and Proulx trace the origins of the debate concerning the defence of the “guilty” (i.e. a person known to counsel to be “guilty”) to the English case of R. v. Courvoisier.3 His counsel was Charles Phillips, who was described as “a leading counsel of the day.” The accused was charged with the murder of his aristocratic employer Lord Russell. As the authors note, after the trial, which ended in the hanging of the accused, it was publically revealed, on the second day of proceedings, that the accused confided his guilt to his counsel, who, in turn, sought advice from a Law Lord who was assisting the trial judge. The authors cite two studies of this case.4 Keep in mind when reviewing this case and related articles that it was only a handful of years prior to this trial that accused persons were granted the right to testify in their own defence before a jury.

In several respects, this case was the origin of the debate concerning the legal and ethical parameters in reference to this topic not only in England, but also in America and Canada.

The authors observe that there is no “unanimous consensus” concerning “how far defence counsel can go in defending the guilty client.”5 Still, the disclosure of this controversy at that time virtually destroyed the reputation and career of Charles Phillips.

Constitutional Considerations: The fundamentals bear repeating. Recall that at the outset, Defence counsel are retained by clients who are presumed innocent. As stated in R. v. St-Onge Lamoureux,6 as well as referenced in Layton and Proulx, every accused person has the right at common law and under the Charter to be 3

Ibid.

The authors cite the following studies: David Mellinkoff,” The Consequence of a Lawyer” (St. Paul, M.N., West 1973); Michael Asimow and Richard Weisberg, “When the Lawyer Knows the Client is Guilty: Client Confessions in Legal Ethics, Popular Culture, and Literature” Southern California Interdisciplinary Law Journal, Vol. 18, p. 229, 2009; UCLA School of Law. Research Paper No. 08-35; NYLS Clinical Research Institute Paper No. 09/10 #23 at pp. 230-232, 244-245 and 257; see also Tuckiar v. R. (1934), 52 CLR 335 at p. 346 (H.C.A.).

5 Layton & Proulx, supra note 1 at p. 21.

6 R. v. St-Onge Lamoureux, 2012 SCC 57 at para. 24.

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presumed innocent until proven guilty according to law after a fair and public hearing by an independent and impartial tribunal. The Crown bears the burden of making out its case beyond a reasonable doubt.7 Guilt must be proven based on a very high standard, not absolute proof, but close to it.

The guiding principle which animates the above noted principles is the right to make full answer and defence to the Crown allegations; it is here the Constitutional imperatives and the legal ones intersect. Section 650(3) of the Criminal Code also provides for the right of an accused person to make full answer and defence to the charges. This underlines the central role of defence counsel.8 Connecting with these core principles are a series of other valuable rights and protections, including:9 a) The adversarial system from which counsel’s role as a partisan advocate arises, is itself a principle of fundamental justice protected by the Charter of Rights. (see R. v. Swain, [1991] 1 S.C.R. 933 at paras. 35-36 and R. v. Mian, 2014 SCC 54 at para.

37) b) A host of additional Charter Rights are available to the accused person, all based on the principle that his advocate must act as a partisan in advancing the defence case “zealously.”10 c) Layton and Proulx provide a list of rights supporting the above proposition:11 i. The right to counsel generally (see Smith v. Jones (1999), 132 CCC (3d) 225 at para. 5 (SCC); R. v. Okafor, 2009 ONCA 672 at para. 12; R. v. AlEnzi, 2014 ONCA 569 at paras. 79 and 82, leave to appeal to SCC refused, [2014] SCCA No. 405) ii. The right to counsel of choice specifically stands out as an important adjunct to the wording of s. 10(b). (see R. v. McCallen (1999), 131 CCC (3d) 518 at para. 35 (Ont. C.A.))

7

Layton & Proulx, supra note 1 at p. 24 (se also R. v. Starr, 2000 SCC 40 at paras. 230-237; R. v. JHS, 2008 SCC 30 at para. 13; and R. v. Griffin, 2009 SCC 28 at para. 33) 8 See R. v. Bjelland, [2009] S.C.J. No. 38 at para. 20; R. v. N.S., (2012) S.C.C. 72 at para. 15 9 Layton & Proulx, supra note 1 at p.23 10 Ibid at p. 22.

11 Ibid at p. 23.

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iii. Given the provisions in the Rules of Professional Conduct it comes as no surprise that the courts have also imported a requirement that counsel be conflict free. (see R. v. Joanisse (1995), 102 CCC (3d) 35 at para. 64 (Ont. C.A.), leave to appeal to SCC refused (1996), 111 CCC (3d) vi (SCC); R. v.

Vachon, 2011 QCCA 2103 at para. 63) iv. There is also a right to the effective assistance of counsel. (see R. v. Joanisse (1995), 102 CCC (3d) 35 at paras. 63-64 (Ont. C.A.), leave to appeal to SCC refused (1996), 111 CCC (3d) vi (SCC); R. v. GDB, 2000 SCC 22 at paras.

24-25; R. v. Vachon, 2011 QCCA 2103 at para. 63) v. None of the aforementioned rights would be meaningful without the protection of solicitor-client privilege. (see R. v. McClure, 2001 SCC 14 at paras. 2, 31-33) Finally, as aptly noted by Layton and Proulx: “It is not going too far to say that defence counsel’s role as a zealous advocate for the accused in a criminal case is a principle of fundamental justice enshrined in the Charter.

Justice Rosenberg has aptly recognized criminal defence counsel’s role as a zealous advocate as ‘a cornerstone of our adversary system:’ R. v. Felderhof, (2003), 180 CCC (3d) 498 at para. 85 (Ont. C.A.).”12 The case law is replete with examples of police abusing their powers. This may cause harm to the all members of society.13 On rare occasions the Crown prosecutors may abuse their powers as well. The Charter is set up as a bulwark to protect accused persons against such abuse.

For this reason, there can be no conviction without the standard of proof beyond a reasonable doubt being met. There can be no conscription of the accused to assist in building the Crown’s case either.14 Frequently, criminal trials will be focused almost exclusively on the advancing of Charter related arguments concerning the Constitutional guarantees afforded to the accused under sections 2 and 12

Layton & Proulx, supra note 1 at pp. 23-24 (see also Law Society of B.C. v. Mangot, 2001 SCC 67 at paras. 43-45; Lavallee, Rackel and Heintz v. Canada (AG), 2002 SCC 61 at paras. 52 and 65-68; Federation of Law Societies of Canada v. Canada (AG), 2013 BCCA147 at paras. 105-114, leave to appeal to S.C.C. granted (2013) S.C.C.A. no.

235.

13 Layton & Proulx, supra note 1 at p. 25.

14 Ibid at p. 24 (R. v. White, [1999] 2 SCR 417 at paras. 40-44; R. v. Brown, 2002 SCC 32 at paras. 91-104; including the right to silence: R. v. Singh, 2007 SCC 48 at para. 21, and ss. 11(c) and 13 of the Charter rights against testimonial compulsion: R. v. Nedelcu, 2012 SCC 59 at paras. 44, 74, 75).

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7-16. Upon proof of breach of one or more of these Charter guarantees the defence may seek exclusion of some or all of the evidence used by Crown counsel at the trial pursuant to s. 24(1),15 but far more frequently using s. 24(2).16 It is in this area of constitutional advocacy that one most vividly sees the interconnection between the ethical and legal considerations, not to mention the practical and tactical approaches taken in the defence of a guilty accused person. Layton and Proulx succinctly touch on these: “Defence counsel’s zealous advocacy is consequently often directed not so much at truth finding as it is at advancing the accused’s constitutional guarantees, including the right to test and resist Crown evidence and to not be compelled to assist in the building of the prosecution case.17 The result of such advocacy is clear. Everyday in criminal courts across Canada evidence deemed essential to the Crown case in order to prove the guilt of the accused persons will be excluded from consideration by the court. Such exclusions will frequently result in a verdict of “not guilty”, as, consequently, one or more of the essential elements of the offence charged may no longer be provable.

This means that persons who might factually be viewed as “guilty” of serious offences in fact will be found “not guilty” in law. Noteworthy in this paradigm are cases such as R. v. Harrison.

From an ethical, legal, or constitutional perspective, the delineation drawn between the “factually guilty” client and the “legally guilty” client is not an artificial one.

Defence lawyers are not judges. Our role is not to make a “finding” that our clients are guilty or not. In many, if not most of the cases we try, the client will be “apparently guilty” of some offence upon a reading of the case disclosure. Nonetheless, there will often be a number of different constitutional, evidentiary (legal) and ethical considerations that require careful study and resourcefulness to assure a positive result for the client.

Ethical Considerations: LSUC Rules of Professional Conduct Chapter 5, “Relationship to the Administration of Justice” entitled “The Lawyer as Advocate” provides, in part, fundamental guidelines for criminal defence counsel in the representation of a client. These Rules are familiar to all criminal practitioners. Nonetheless, it is always useful to 15

See e. g. R. v. White, [1999] 2 S.C.R. 417; R. v. Harrer [1995] 3 S.C.R. 562.

See e.g. R. v. Grant, 2009 SCC 32 at paras 59-128; R. v. Harrison, 2009 SCC 34 at paras. 20-42; R. v. Morelli, 2010 SCC 8 at paras. 98-113; R. v. Cote, 2011 SCC 46 at paras. 45-48.

17 Layton & Proulx, supra note 1 at p. 25 [emphasis added] 16

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return to them when questions arise in the course of litigating on behalf of a criminal accused.

(Those which have little or no application to criminal defence are readily identifiable and can usually be ignored).

Particular attention should be paid to ensuring counsel have a complete and clear understanding of the provisions that do apply to defending clients in criminal cases: Section 5.1-1 (as well as the “Commentary” provisions [1], [2], [3], [5], [9], [10]) provide some guidance to counsel. Of interest in the context of the present topic are s. 5.1-1 and the associated commentary sections [1], [2], [5], [9] and [10]. For convenience, they are reproduced below:18 “5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Commentary [1] Role in Adversarial Proceedings – In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

[2] This rule applies to the lawyer as advocate, and therefore extends not only to court proceedings but also to appearances and proceedings before boards, administrative tribunals, arbitrators, mediators and others who resolve disputes, regardless of their function or the informality of their procedures.

[3] The lawyer’s function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (except as required by law or under these rules and subject to the duties of a prosecutor set out below) to assist an adversary or advance matters harmful to the client’s case.

18

Rules of Professional Conduct, Toronto: Law Society of Upper Canada, 2000 at ss. 5.1-1 [Rules of Professional Conduct].

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[5] A lawyer should refrain from expressing the lawyer's personal opinions on the merits of a client's case to a court or tribunal.

[9] Duty as Defence Counsel - When defending an accused person, a lawyer’s duty is to protect the client as far as possible from being convicted, except by a tribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which the client is charged. Accordingly, and notwithstanding the lawyer's private opinion on credibility or the merits, a lawyer may properly rely on any evidence or defences, including so-called technicalities, not known to be false or fraudulent.

[10] Admissions made by the accused to a lawyer may impose strict limitations on the conduct of the defence, and the accused should be made aware of this. For example, if the accused clearly admits to the lawyer the factual and mental elements necessary to constitute the offence, the lawyer, if convinced that the admissions are true and voluntary, may properly take objection to the jurisdiction of the court, the form of the indictment or the admissibility or sufficiency of the evidence, but must not suggest that some other person committed the offence or call any evidence that, by reason of the admissions, the lawyer believes to be false. Nor may the lawyer set up an affirmative case inconsistent with such admissions, for example, by calling evidence in support of an alibi intended to show that the accused could not have done or, in fact, has not done the act. Such admissions will also impose a limit on the extent to which the lawyer may attack the evidence for the prosecution. The lawyer is entitled to test the evidence given by each individual witness for the prosecution and argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged, but the lawyer should go no further than that.�

Section 5.1-2, (a)-(m) are relevant provisions and s. 5.1-8 provides some useful directives and prohibitions for counsel to be aware of:19 “5.1-2 When acting as an advocate, a lawyer shall not (a) abuse the process of the tribunal by instituting or prosecuting proceedings which, although legal in themselves, are clearly motivated by malice on the part of the client and are brought solely for the purpose of injuring the other party; (b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable;

19

Ibid at ss. 5.1-2.

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(c) appear before a judicial officer when the lawyer, the lawyer's associates or the client have business or personal relationships with the officer that give rise to or might reasonably appear to give rise to pressure, influence, or inducement affecting the impartiality of the officer, unless all parties consent and it is in the interests of justice; (d) endeavour or allow anyone else to endeavour, directly or indirectly, to influence the decision or action of a tribunal or any of its officials in any case or matter by any means other than open persuasion as an advocate; (e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct; (f) knowingly misstate the contents of a document, the testimony of a witness, the substance of an argument, or the provisions of a statute or like authority; (g) knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence or as a matter of which notice may be taken by the tribunal; (h) make suggestions to a witness recklessly or knowing them to be false; (i) deliberately refrain from informing the tribunal of any binding authority that the lawyer considers to be directly on point and that has not been mentioned by an opponent; (j) improperly dissuade a witness from giving evidence or advise a witness to be absent; (k) knowingly permit a witness or party to be presented in a false or misleading way or to impersonate another; (l) knowingly misrepresent the client’s position in the litigation or the issues to be determined in the litigation; (m) needlessly abuse, hector, or harass a witness;” Not every section or commentary note has a direct impact on defending a “guilty” accused.

However, in the following exploration of specific fact situations, where this issue is at the forefront of counsel’s concern, they do provide some guidance as to the governing principles. That said, it is in their application to real world situations that counsel are likely to be left with questions and doubts about the appropriate course of action in a given circumstance.

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Other Rules referred to less often may be of assistance as well.

Chapter 2, entitled “Integrity” including s. 2.1-1 and commentary [2] and [3] are also relevant in this context, as well as s. 2.1-2:20 “2.1-1 A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.

Commentary [2] Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer’s irresponsible conduct. Accordingly, a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety.

[3] Dishonourable or questionable conduct on the part of a lawyer in either private life or professional practice will reflect adversely upon the integrity of the profession and the administration of justice. Whether within or outside the professional sphere, if the conduct is such that knowledge of it would be likely to impair a client’s trust in the lawyer, the Law Society may be justified in taking disciplinary action.

2.1-2 A lawyer has a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations and institutions.”

Section 3.3-1 entitled “Confidentially” and “Confidential Information” along with commentary sections [2], [3], [4] and [5] apply:21 “3.3-1 A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless (a) expressly or impliedly authorized by the client; (b) required by law or by order of a tribunal of competent jurisdiction to do so; (c) required to provide the information to the Law Society; or (d) otherwise permitted by rules 3.3-2 to 3.3-6.

20 21

Ibid at ss. 2.1.

Ibid at ss. 3.3-1.

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Commentary [2] This rule must be distinguished from the evidentiary rule of lawyer and client privilege, which is also a constitutionally protected right, concerning oral or documentary communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge.

[3] A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.

[4] A lawyer also owes a duty of confidentiality to anyone seeking advice or assistance on a matter invoking a lawyer’s professional knowledge, although the lawyer may not render an account or agree to represent that person. A solicitor and client relationship is often established without formality. A lawyer should be cautious in accepting confidential information on an informal or preliminary basis, since possession of the information may prevent the lawyer from subsequently acting for another party in the same or a related matter. (See Section 3.4 Conflicts.)”

The provisions concerning “Dishonesty, Fraud etc. by clients or others” in Chapter 3, sections3.27 to 3.2-7.2 along with commentary [1] read as follows:22 “3.2-7 A lawyer shall not knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct or instruct a client or any other person on how to violate the law and avoid punishment.

3.2-7.2 When retained by a client, a lawyer shall make reasonable efforts to ascertain the purpose and objectives of the retainer and to obtain information about the client necessary to fulfill this obligation.

Commentary [1] Rule 3.2-7 which states that a lawyer must not knowingly assist in or encourage dishonesty, fraud, crime or illegal conduct, applies whether the lawyer’s knowledge is actual or in the form of wilful blindness or recklessness. A lawyer should also be on guard against becoming the tool or dupe of an unscrupulous client or persons associated with such a client or any other person. Rules 3.2-7.1 to 3.2-7.3 speak to these issues.”

22

Ibid at ss. 3.2-7.

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When the situation arises where counsel must consider discontinuing representation, section 3.7 “Withdrawal from Representation” must be considered. See s. 3.7-1 and commentary [1], s. 3.7-2 and commentary [1], and s. 3.7-4 and commentary [1] where counsel seeks to withdraw from representing a client in criminal proceedings:23 “3.7-1 A lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client.

Commentary [1] Although the client has the right to terminate the lawyer-client relationship at will, the lawyer does not enjoy the same freedom of action. Having undertaken the representation of a client, the lawyer should complete the task as ably as possible unless there is justifiable cause for terminating the relationship.

3.7-2 Subject to the rules about criminal proceedings and the direction of the tribunal, where there has been a serious loss of confidence between the lawyer and the client, the lawyer may withdraw.

Commentary [1] A lawyer may have a justifiable cause for withdrawal in circumstances indicating a loss of confidence, for example, if a lawyer is deceived by their client, the client refuses to accept and act upon the lawyer’s advice on a significant point, a client is persistently unreasonable or uncooperative in a material respect, there is a material breakdown in communications, or the lawyer is facing difficulty in obtaining adequate instructions from the client. However, the lawyer should not use the threat of withdrawal as a device to force a hasty decision by the client on a difficult question.

3.7-4 A lawyer who has agreed to act in a criminal case may withdraw because the client has not paid the agreed fee or for other adequate cause if the interval between a withdrawal and the date set for the trial of the case is sufficient to enable the client to obtain another licensee to act in the case and to allow the other licensee adequate time for preparation, and the lawyer (a) notifies the client, preferably in writing, that the lawyer is withdrawing because the fees have not been paid or for other adequate cause;

23

Ibid at ss. 3.7-1, 3.7-2.

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(b) accounts to the client for any monies received on account of fees and disbursements; (c) notifies Crown counsel in writing that the lawyer is no longer acting; (d) in a case when the lawyer's name appears on the records of the court as acting for the accused, notifies the clerk or registrar of the appropriate court in writing that the lawyer is no longer acting; and (e) complies with the applicable rules of court.

Commentary [1] A lawyer who has withdrawn because of conflict with the client should not indicate in the notice addressed to the court or Crown counsel the cause of the conflict or make reference to any matter that would violate the privilege that exists between lawyer and client. The notice should merely state that the lawyer is no longer acting and has withdrawn.”

Particular attention must also be paid to the “Mandatory Withdrawal” provisions on Rule 3.7-7, in particular subsection (b). 24 “3.7-7 Subject to the rules about criminal proceedings and the direction of the tribunal, a lawyer shall withdraw if (a) discharged by the client; (b) the client’s instructions require the lawyer to act contrary to these rules or bylaws under the Law Society Act; or (c) the lawyer is not competent to continue to handle the matter.”

The Rules provide some guidance to counsel but are, by no means, exhaustive in signalling to counsel what the correct path to follow may be in real situations that may be encountered.

In criminal litigation we will often be confronted with ethical questions for which the Rules and the limited case law available on the particular subject of concern point to grey areas as opposed to a bright line to guide counsel’s conduct.

In a sense this was the situation in part, which was analyzed by Gravely J. in R. v. Murray, concerning the concealment of the Bernado/Homolka crime scene videos that counsel for Mr. Bernardo had retained on his client’s behalf.25

24 25

Ibid at ss. 3.7-7.

R. v. Murray, [2000] O.J. No. 2182 (Ont. Sup. Ct.).

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The Rules, at that time, provided “no guidance as to the nature of the evidence” that “ought to be disclosed.” Clearly when Murray reviewed the subject videos they clearly showed that both his client Bernardo as well as Homolka were involved in sexually deviant conduct concerning the two victims, as well as others.26 Murray subsequently brought on Mr. Rosen to represent Bernado. Others worked on the issue of disclosure: “The research team was not unanimous in its opinion, although the majority favoured immediate disclosure.”27 Ultimately, what saved Murray from conviction on the charge of attempt to obstruct justice at least on one level was the real confusion as to the obligation of counsel when coming into possession of non-privileged real physical evidence: “While Murray made only a token effort to find out what his obligations were, had he done careful research he might have remained confused. The weight of legal opinion in Ontario is to the effect that lawyers may not conceal material physical evidence of crime, but how this rule applies to particular facts has been the subject of extensive discussion. Lawyers in the United States have been afflicted with the same dilemma. In the materials supplied to me by counsel, there is reference to at least 15 law journal discussions on the issue.”28 It is noteworthy that Mr. Murray contacted Austin Cooper’s office (Mr. Cooper would go on to successfully represent Murray at his trial), to obtain assistance in getting off the record on behalf of Paul Bernado.

After meeting Murray, Mr. Cooper wrote to the Law Society of Upper Canada seeking advice. The Law Society of Upper Canada convened a special three-person ad hoc committee to consider the request and, on September 8, 1994 wrote Mr. Cooper as to the course of action Mr. Murray should follow, which included these sections.29 Murray’s strategy concerning the intentional concealment of the tapes was to surprise Ms. Homolka with them to destroy her credibility at the preliminary inquiry. This not only resulted in his criminal prosecution and trial, but also the complete failure of his goal as the Crown preferred an indictment against the accused, (so there was no preliminary hearing) and entered into a plea bargain with Homolka while being deprived of access to the tapes which demonstrated her direct involvement and partyship in the crimes alleged.

26

Ibid at paras. 147-49.

Ibid at para. 150.

28 Ibid at para. 149 [emphasis added].

29 Ibid at paras. 68-70.

27

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There is an important lesson to be drawn from the Murray case that resonates to this day. If counsel is uncertain of the proper course of action, retain senior counsel to provide advice. This may result in seeking an opinion from the Law Society, or as a last resort, the determination of the issue by a judge.

The Defence of Persons Suspected or Known to be Guilty: The Ethical Rationale Layton and Proulx offer several compelling rationales why an ethical framework concerning the conduct of defence counsel in defending someone “suspected or known to be guilty” exists.30 Firstly, the decision as to guilt is not made by the parties (Crown or defence) but by a neutral trier of fact.

Second, the state is well financed and resourced to prosecute citizens. The criminal trial process is complex, costly and intimidating to lay persons unfamiliar with the procedures and Criminal Code provisions. Counsel are relied upon by the justice system to ensure that substantive and procedural rights are protected.

Barristers are, by definition, advocates for their clients. They are not “mouthpieces”. This ensures that both the accused and the public have confidence in the legal system. Defence counsel do not decide cases on their merits. The role of defence counsel is necessarily partisan. The primary reason for this is: “Few litigants have as much at stake as do criminal defendants. If convicted, they face the powerful stigma of being branded criminals, possible or certain loss of liberty, and a cavalcade of other potential adverse consequences such as loss of employment, damage to family and other personal relationships, forfeiture of property, and restrictions on international travel. Sometimes, many of these deleterious consequences arise immediately on being charged. What is more, accused persons are typically poor and disadvantaged and virtually fundless within the justice system…defence lawyers affirm their humanity and worth as members of society.”31 The authors could also have added another potentially adverse consequence if convicted: the taking of DNA samples and registration in the data bank as well as registration in sexual offender registries which has become the modern Scarlett letter.

30 31

Layton & Proulx, supra note 1 at p. 21.

Ibid at pp. 22-23.

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Strong and Weak Adversarialism: An American Perspective In their interesting and often entertaining paper published in 2006, professors Michael Asimow and Richard Weisberg focus on the ethical considerations of how to pursue the defence of the “guilty” client.32 They examine the approaches proposed by various legal ethicists and delve into how this issue has been dealt with in popular culture i.e. television and motion pictures and literature.33 The abstract describes the central focus of the paper.

“This article concerns a classic puzzle in legal ethics: what should a criminal defense lawyer do when the lawyer is certain that the client is factually guilty (usually because the client confessed to the lawyer), but the client insists on an all-out defense?”34 This central question has become the focus of many academic articles and ethical texts. It is useful, first of all, to examine how our U.S. neighbours have navigated through these choppy ethical waters.

Two American criminal cases and the controversies they aroused are particularly interesting in this context. One if the case of David Westerfield who was represented by San Diego lawyer Steven Feldman.

“The story of San Diego lawyer Steven Feldman and client David Westerfield is a sobering reminder that the Courvoisier problem is as current as yesterday’s headlines. A seven-year old girl named Danielle van Dam was abducted from her home in the middle of the night.

Substantial circumstantial evidence pointed to a neighbor, David Westerfield, who was charged with the crime. However, the police had not found Danielle’s body. During plea bargaining, the prosecutor offered not to seek the death penalty if Feldman would disclose the location of the body. Since Feldman had that information, he must have known that Westerfield was the killer. Before a deal could be struck, volunteers found the body and the plea bargain collapsed. The case went to trial and Feldman conducted an all-out defense. In his opening statement, Feldman said: “We have doubts. We have doubts as to the cause of death. We have doubts as to the identity of Danielle van Dam’s killer. We have doubts as to who left her where . . . she remained. And we have doubts as to who took her.”

32

Michael Asimow is Professor of Law Emeritus, UCLA School of Law. Richard Weisberg is the Walter Floersheimer Professor of Constitutional Law, Cardozo Law School 33 This Article is an expanded version of the annual Mellinkoff lecture delivered by the authors at UCLA Law School on February 15, 2006.

34 Michael Asimow and Richard Weisberg, “When the Lawyer Knows the Client is Guilty: Client Confessions in Legal Ethics, Popular Culture, and Literature” Southern California Interdisciplinary Law Journal, Vol. 18, p. 229, 2009; UCLA School of Law Research Paper No. 08-35; NYLS Clinical Research Institute Paper No. 09/10 #23 [Asimow & Weisberg].

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In cross-examining Danielle’s parents, Feldman brought out the fact that they had a “swinging lifestyle” and held sex parties in their home, suggesting that a guest at one of these parties might have killed the girl. Obviously, this was highly damaging to the parents’ reputation, yet Feldman knew the inference he was seeking to raise was false. He also introduced expert testimony from three entomologists concerning the blowflies and maggots on the victim’s body in order to fix the time of her death. If the experts were right about the time of death, Westerfield could not have been the killer because he was under police surveillance at that time. However, Feldman knew that the testimony was wrong (even though the experts believed it was correct). Westerfield was convicted and is presently on death row. The sequel to the trial mirrored Courvoisier: there was a thunderous outcry in the local press, with an editorial in the San Diego Union Tribune claiming that Feldman was as despised as Westerfield. Conservative TV commentator Bill O’Reilly ran numerous segments about the case on Fox News and filed an ethics complaint with the San Diego and the California State Bar Associations. Feldman and his family were shunned.

According to Feldman, the San Diego Bar Association’s phone answering machine said “if you want information about the San Diego Bar Association, press 1; if you want to complain about Steven Feldman, press 2.” In fact, Feldman’s actions fell within the accepted conventions for criminal defense and the storm blew over. What should Charles Phillips and Steven Feldman have done when they awoke to the defense lawyer’s worst nightmare: how to defend clients whom they knew beyond any doubt were factually guilty of the crime but who insisted on a vigorous defense? This ethical issue remains hotly debated to the present day.”35 The other case referred to by the authors will be familiar to many defence lawyers from legal ethics courses or examination questions based on its fact pattern.

“The circumstances of Westerfield are reminiscent of those in People v. Belge, 376 N.Y.S.2d 771 (1975). A client disclosed the location of the bodies of murder victims to his attorneys, but they refused to reveal the information despite anguished pleas from the victims’ parents. The attorneys also tried to use the information in return for a favorable plea bargain. There was an enormous public outcry against the attorneys. One was prosecuted criminally. Their law practices were ruined. A New York appellate court voiced serious concern about their ethics.” 36 Asimow and Weisberg draw a distinction in their article between “strong and weak adversarialism.” In the final analysis, they posit that lawyers should have a discretion to choose between the strong and weak positions depending on context and their personal conscience.

35 36

Ibid at pp. 8-10.

Ibid at p. 9.

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This may be contrasted with the approach taken in pop culture where the correct answer is no adversarialism at all. That is, there is no “dilemma” to be concerned with. The good lawyer should betray evil clients to ensure truth is discovered.

This creates a dichotomy alluded to at the beginning of this paper. The authors review defence lawyers as depicted in television series: “Eli Stone, L.A. Law, The Practice, Law & Order, Boston Legal, Shark, and Close to Home.”37 Numerous episodes contain the theme that a good lawyer betrays the bad client.

They focus on four popular movies that depict defence counsel in a similar fashion: Michael Clayton, The Devil’s Advocate, From the Hip, and Justice for All. It is difficult to deny there is validity to authors’ conclusions about the impact on the public of popular culture, concerning their perceptions of the criminal justice system.

“First, popular culture serves as a mirror of what people actually believe (or at least what the makers of pop culture believe that they believe). Of course, the mirror is distorted, given the biases of filmmakers and their need to entertain people and turn a profit. Still, pop culture products often furnish tantalizing clues about public attitudes and beliefs.

Looked at in this way, these lawyer betrayal films and television shows suggest that people expect good lawyers to look out for the public interest ahead of their clients. Most people do not understand or agree with the lawyer’s view that justice is a procedural concept consisting of adversarial combat and due process. Instead, they believe that justice involves a search for the truth. A good lawyer should always work to find the truth and achieve substantive justice for all concerned, even when the lawyer must sacrifice the interest of an evil client to do so. Of course, most lawyers reject the idea that their job is to assist in revealing the truth about past events, but lawyers should understand that the public doesn’t see it that way. Second, pop culture serves as a powerful teacher, instructing millions of consumers about what lawyers do and how legal institutions function. For many people, film and television is virtually their only source of information on these subjects and they often fail to take into account that the stories in media are fictitious. Thus film and television have consistently taught the public that good lawyers should betray client confidences and sell out their own clients. Third, popular culture reveals alternative visions of common situations and relationships, including those presented in legal practice, thus surfacing new issues and revealing new perspectives on old ones. As Austin Sarat and his collaborators argue: ‘The moving image attunes us to the ‘might-have-beens’ that have shaped our worlds and the ‘might-bes’ against which those worlds can be judged and toward which they might be pointed. In so doing, film contributes to both greater analytic clarity and political sensitivity in our treatments of law. It opens up largely unexplored 37

Ibid at p. 33.

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areas of inquiry as we chart the movement from law on the books to law in action to law in the image.’”38 The authors, however, only consider pop culture in the context of novels, television and literature.

They correctly, in my view, describe the impact these have had on the perception of the public concerning not only the role of lawyers, but also the functioning of the criminal justice system itself. However, this article was written a decade ago. How things have changed.

The promulgation of information and constant public opinion-making by means of social media has generated a firestorm of controversy. Twitter, Instagram, Facebook and a plethora of other social media have become the face of new journalism and information for a vast segment of the population.

Serious journalism and informed coverage of important trials have been overshadowed by these media sources which, in turn, cater to short attention spans and lead to instant uninformed conclusions by member of the public concerning guilt and innocence.

Moreover, we are now witnessing a microscopic scrutiny of the tactics, tone, questions and strategy of defence counsel, not to mention daily commentary concerning the wardrobe of leading female defence counsel.

We need look no further than the insulting and misguided criticism by the media and social media opinion-makers including, among other lawyers, one of Canada’s leading defence lawyers, Marie Henein, in the context of the Ghomeshi trial and the acquittals on all counts.

This conclusion by the authors, even without the consideration of the enormous impact of social media, still directly hits the bullseye of the target, namely “criminal defence lawyers.”

Of particular concern, is that these citizens, immersed in social media and other opinion-making outlets, will be so influenced as to guilt of the accused, that jury selection will be significantly undermined.

So what is the proper approach adopted by our American colleagues in the defence of the guilty and how does it compare with the prevailing wisdom as to how to answer this question here in Canada? Can it logically and ethically be argued that a defence counsel, knowing without a doubt that the client is guilty can adopt the prevailing U.S. point of view on this subject?

38

Ibid at pp. 36-37.

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In 1966, Professor Monroe Freedman, of the School of Law at Hofstra University, poised three questions in his paper “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions”, two of which are of relevance to this subject: “2. Is it proper to put a witness on the stand [the client] when you know he will commit perjury?

3. Is it proper to give your client legal advice when you have reason to believe that the knowledge you gave him will tempt him to commit perjury?”39 Some guidance in answering these important questions may be found in the Asimow and Weisberg analysis of “strong” and “weak adversarialism.” Unfortunately, the authors can offer no definitive answers to assist us. However, they provide a useful framework within which to focus the debate.

“Lawyers who are certain of their client’s guilt confront inescapable ethical conflicts when the client insists on a vigorous defense. The lawyer’s obligations to protect confidential client communications and to conduct a zealous defense come into conflict with the lawyer’s duty of candor toward the court and possibly the lawyer’s own moral sensibility.

How to reconcile these professional and moral obligations remains highly contested. The often-vague rules of legal ethics, the spotty judicial decisions on the subject, the opinion of the general public, and the views of legal ethicists all conflict.”40 The case for “strong adversarialism” is addressed subsequently.

“The normative case for strong adversarialism (sometimes referred to as “neutral partisanship”) emphasizes the objective of zealous representation and protection of client confidences. Strong adversarialists foreground the client’s interest above all other values.”41 Can lawyers always foresee when a client may commit perjury?

Clearly there will be situations where defence counsel will know with a high degree of certainty that calling their client will result in perjurious testimony being proffered in the trial. What if the client insists on testifying nonetheless?

Asimow and Weisberg draw comparisons between strong and weak adversarialism in order to attempt to bring some clarity in answering such questions.

Monroe H. Freedman, “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions,” 64 Mich. L. Rev. 1469 (1966) at p. 1469.

40 Asimow & Weisberg, supra note 34 at pp. 10-11.

41 Ibid at pp. 11-12 [emphasis added].

39

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“The strong approach also recognizes that in many situations a lawyer cannot be certain whether to take a client’s confession at face value. Nor can the lawyer be certain whether the client’s direct testimony will be perjured or whether the testimony of a particular witness is truthful. As a result, strong adversarialists argue, a prudential approach requires them to go all out in defense even when they feel sure the client is guilty. The normative case for weak adversarialism, on the other hand, foregrounds values such as the truthfinding function of trials, the obligation of candor toward the tribunal, and the need to protect the reputation of truthful witnesses and the interests of other third parties who may be damaged by the litigation. A weak adversarialist is less concerned with such values as zealous advocacy, protection of client confidences, and procedural justice, and more concerned with the pursuit of substantive justice (that is, reaching the correct result rather than just using the correct procedures). The weak approach honors the individual lawyer’s conscience by allowing the lawyer to do less than the lawyer’s adversarial best when the lawyer is certain that the client is factually guilty of the crime. Counsel’s decision to choose the weak adversarial option should be communicated to the client as soon as the lawyer has made that decision. Thus, a defense lawyer should conduct a conversation with a client that warns the client of the choice the lawyer has made. The client should be told, for example, that the lawyer will not allow the client to introduce perjured testimony in the normal question and answer form or that the lawyer will not engage in a crushing crossexamination of a witness whom the lawyer is certain will testify truthfully. The client can then select another lawyer who will tread the strong adversarial path or a lawyer to whom the client has not confessed guilt.”42 In the context of a real world trial can counsel legally and ethically expose such perjury to the trial judge? The authors address this consideration as well in the context of a criminal trial in the U.S. “All in all, disclosure of proposed or completed perjury to the tribunal seems impractical.

However, it is supported by the Supreme Court’s decision in Nix v. Whiteside. In that case, counsel was certain that the defendant planned to offer perjured testimony. He threatened to go to the judge if the client committed perjury and also to impeach the client’s testimony or to withdraw during the trial. The U.S. Supreme Court held that these threats did not add up to ineffective assistance of counsel and thus did not entail a due process violation.

Dictum in Nix indicates that such behavior by the lawyer is ethically appropriate. “In short, the responsibility of an ethical lawyer, as an officer of the court and a key component of a system of justice, dedicated to a search for truth, is essentially the same whether the client announces an intention to bribe or threaten witnesses or jurors or to commit or procure perjury. No system of justice worthy of the name can tolerate a lesser standard.”43 42 43

Ibid at pp. 13-14.

Ibid at pp. 21-22.

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Is there a different path going forward that may work to protect solicitor-client privilege and the duty of counsel to be candid with the court? The authors address the use of the “narrative approach.”

“A number of states, including California, fall back on what is known as the narrative approach. The lawyer should not disclose the perjury to the judge but instead should allow the client to testify in narrative (without the usual questions and answers). The lawyer should not refer to the client’s perjured testimony in closing argument. The narrative approach was formerly incorporated in the ABA’s Standards for Criminal Justice but was dropped in 1980. Comments to the Model Rules disapprove it, as does Nix v. Whiteside.

This method of presentation tips off the judge and prosecutor to what is going on, but it is unclear what the jury will make of it. Given that the narrative gambit has appeared on television, the jury may well catch on that the lawyer thinks the testimony is perjured. The narrative approach is obviously suboptimal, but may be the best way to implement a weak adversarial approach to the client perjury problem. It does less damage to the lawyer-client relationship than disclosure of potential perjury to the judge. Presenting perjured testimony in narrative form avoids the need for a mini-trial or the compelled silencing of the defendant or disclosure to the judge of confidential client information. It also does less damage to the justice system in the event that the lawyer is wrong about whether the client is lying. The narrative approach encourages the lawyer to remonstrate with the client not to take the stand and commit perjury. And the lawyer has some leverage here, given that the jury may figure out that something is amiss from the narrative presentation and counsel’s failure to argue the defendant’s story during closing argument. Narrativity allows the judge, during sentencing, to take account of the probably-perjured testimony. Yet this approach preserves the client’s right to tell the story as the client sees it, and somewhat minimizes the chances that the jury will acquit a guilty person as compared to presentation of the perjured testimony in normal question-and-answer form.”44

The Canadian Perspective How does the U.S. approach to these thorny issues compare with that taken by Canadian ethicists and practitioners?

An excellent starting point to frame the issues is to pose a series of questions which have dominated the ethical/legal landscape here.

44

Ibid at pp. 22-23.

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1. What are the restrictions, if any, on defence counsel when conducting the defence of a client?

2. At what point should counsel actively seek to determine if the client is “guilty”?

3. How should we define the content of “knowledge of guilt,” that is, what degree of knowledge is necessary?

4. Is there specific action counsel must take upon learning that a client is “guilty” as charged?

5. What is the Canadian ethical approach when counsel believe the client will testify falsely under oath if called, and more importantly, if the client does testify falsely under oath?

6. Finally, are there possible legal implications for the defence counsel in any of these situations quite aside from Law Society disciplinary proceedings?

Answers to questions: 1. Layton and Proulx make it clear that there are constraints on defence counsel in every case.

“The law permits an accused person to insist that the Crown prove its case according to the justice system’s applicable standards and rules to challenge and test the Crown case within an adversarial setting. But the law does not allow an accused, nor counsel acting on his behalf to act dishonestly or fraudulently in conducting the defence. We therefore see a balance, or perhaps a tension, between the legitimate pursuit of an accused’s rights in conducting a defence and the need to ensure lawyers of not knowingly mislead the court and hence unacceptably subvert the truth-finding function of the criminal justice process.”45 Moreover, blended in with this constraint is the further guidance provided in the seminal decision of Rondel v. Worsley by Reid L.J. “Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case', nevertheless 'as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may, and often does, lead to a conflict with 45

Layton & Proulx, supra note 1 at p. 26.

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his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce.”46 Counsel will immediately note the similarity between this passage and the wording of Rule 5.1 and commentary [1]. The authors refer to jurisprudence reflecting His Lordship’s point of view.47 2. The standard in Ontario is clear in most situations. Lawyers should not seek shelter by means of wilful blindness where there is “inevitable knowledge of a client’s guilt.”48 There are situations where the evidence may be unequivocal in pointing towards a conclusion that the client is guilty. Counsel need to consider whether this is “factual guilt” or “legal guilt.” They note that in arriving at a conclusion of “legal guilty”, counsel must be convinced that the evidence of the prosecution is such that the Crown can prove the case beyond a reasonable doubt.

Some clients will be very reticent about discussing the factual elements of their case. Some clients due to mental health issues may be unable to brief their defence lawyer adequately.

Other clients may only provide part of the narrative as to the real events. Meanwhile, some clients may simply lie to their lawyer concerning their involvement, sometimes telling them what they think the lawyer wants to hear.

Certainly, without some knowledge from the client relating to each essential element of the offence(s) charged, it will make it legally and ethically impossible for counsel to make a determination as to whether to advise the client to consider plea negotiations.

3. The degree of knowledge of guilt may vary from case to case depending on the client, the nature of the offence charged, including the relevant mens rea. However, counsel must exercise great caution in this analysis. It bears repeating that it would be improper to assume the role of the trial judge doing such an assessment. One example is R. v. Moore where counsel told his client he was ethically precluded from calling him to testify in a sexual assault case because he had failed a polygraph.49 The conviction (the client was 46

Ibid.

Ibid at p. 27 (See also R. v. Samra, [1998] O.J. No. 3755 at paras. 64-65 (Ont. C.A.), R. v. Dunbar, 2003 BCCA 667 at para. 336; R. v. Felderoff, [2003] O.J. No. 4819 (Ont. C.A.); and R. v. Lyttle, 2004 SCC 5 at para. 41 [Lyttle].

48 Layton & Proulx, supra note 1 at pp. 26, 38.

49 Ibid at pp. 26, 30.

47

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never called to testify) was overturned on appeal because of ineffective assistance of counsel. The client never sought his trial lawyer’s assistance to provide false evidence.

Polygraph results are fallible.

Such results did not rise to the highest standard of conclusive and irresistible proof of guilt.

“Whatever the lawyer’s belief, he could not be said to have known his client was lying, and so the rules of professional conduct were not engaged.”50 Layton and Proulx advance the proposition that the standard is “irresistible knowledge of guilt.” [emphasis added] How has the standard been defined? It is not satisfied merely because counsel is confronted with inconsistent statements by the client. There must be a good faith consideration of a firm factual basis “based on objective circumstances, rooted in fact.” Other standards advanced include: “good faith determination,” “good cause to believe,” “compelling support,” “beyond a reasonable doubt,” clearly convincing evidence” and “absolutely no doubt.”51 These metrics are drawn from U.S. authorities.

Commentaries [9] and [10] to Rule 5 are all of particular relevance to this calculus. Counsel must not focus exclusively on admissions by the client to formulate an opinion or draw a final conclusion. There is a fine balance to be engaged in when drawing a final conclusion.

Counsel is vested with the unique role of protecting the client’s constitutional rights including the presumption of innocence. There is an ethical duty to “fearlessly raise every argument and ask every question.” Commentary [10] outlines a code of conduct which speaks to the limitations and restrictions ethically binding counsel, particularly when the client “clearly admits to the lawyer the factual and mental elements necessary to constitute the offence.” Going a step further, “the lawyer must also be satisfied that the admissions are “true and voluntary.”52 The Layton and Proulx standard of “irresistible knowledge of guilt,” has been adopted in R. v. Youvarajah and supported by other legal ethicists.53 Clearly the evidence to meet this standard need not flow only from information received from the client’s “clear and convincing admissions that fully jibes with the rest of the evidence in the case.54 The authors go on to conclude it matters not what the source is for 50

Ibid.

Ibid at pp. 26, 31-32.

52 Rules of Professional Conduct, supra note 18 at p. 75 [emphasis added].

53 R. v. Youvarajah, 2013 SCC 41 at para. 61.

54 Layton & Proulx, supra note 1 at p. 33.

51

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reaching the conclusion that the client is guilty. However, there is an important caveat that should not be ignored: “Consequently, although a lawyer must in the vast majority of cases resist passing judgment on a client, there will be exceptional situations where he cannot escape the irresistible conclusion and where the attendant ethical constraints will therefore apply.�55 4. Once the lawyer is satisfied that the ethical standard has been met, then the limitations referred to in commentary [10] should be adhered to as closely as possible.

5. The ethical restraints are clear. Perjurious testimony of a client cannot be called by defence counsel. I disagree with the American approach concerning calling the evidence of a client who insists on testifying falsely under oath by using the narrative approach. The Rules of Professional Conduct prohibit doing so (see above and in Rule 5.1-2 and commentary [e]).

This could lead, in the appropriate case, to discipline by the Law Society of Upper Canada.

6. The legal implications are significant. If is it proven that the client committed perjury (a very high standard) the lawyer could potentially be charged with:56 a. b. c. d.

Being a party to perjury (ss. 21 and 131); Counselling perjury (ss. 22, 131 and 464); Fabricating evidence (s. 137); Obstructing justice (s. 139)

In such circumstances the crime/fraud exception to solicitor-client privilege might be involved.

Guilt of Client Revealed at or During Trial An entirely separate and significant issue is what counsel should do if he learns of the client’s guilt in the course of the trial itself rather than before it commences.

There are a number of steps that counsel must consider depending on factors such as: 1. The point at which the information becomes available; 2. The amount of evidence heard to that point; 55

Ibid at p. 34.

Ibid at p. 55 (Cases to examine include R. v. Sweezy, [1987] N.J. No. 295 (Nfld. C.A.); R. v. Doiron, 2007 NBCA 41, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 413. Remember also that the crime/fraud exception to solicitor/client privilege may result in the full disclosure of all discussions between you and your client).

56

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3. The nature of the evidence leading to the conclusion that the client is guilty and its source (is it something unanticipated arising in course of trial or is it a confession by the client?); 4. Whether it is a judge alone or jury trial; 5. A consideration of what may be conveyed to the trial judge, if anything, without a breach of solicitor-client privilege; 6. Resort should immediately be made to the Rules of Professional Conduct and, if necessary, seeking advice from senior counsel; 7. Consideration of all options including seeking to be removed as counsel.

Upon reviewing the Rules, prior to considering the appropriate option or remedy, counsel must consider the restrictions which are now imposed by them and advise the client what they are: Commentary [10] to Rule 5.1 as broken out dictates that counsel must comply with specific restrictions. (no matter when he/she learns of the guilt of the client). The authors recite this part of commentary [10] nearly verbatim:57 1. May properly take objection to the jurisdiction of the court, form of indictment, or admissibility or sufficiency of the evidence; 2. Must not suggest that some other person committed the offence; 3. Must not call any evidence which by reason of the admission, the lawyer believes to be false; 4. Must not set up an affirmative case inconsistent with such admissions, for example, by calling evidence in support of an alibi intending to show that the accused could not have done, in fact, has not done the “act’; 5. But is entitled to test the evidence given by each individual witness for the prosecution and argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged, but the lawyer should go no further than that.

Aside from what the commentary says, a confession mid-trial by the client would not prohibit counsel from pursuing a Charter application to exclude key evidence which, if successful, may result in an acquittal. Counsel will be guided by the nature of the confessions as to whether it is now impossible to call the client to testify on the Charter application.

57

Ibid at p. 46.

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Clearly these restrictions must lead to a meeting with the client. This is sometimes referred to, in the vernacular, as the “come to Jesus” meeting. Counsel should take great care to create a proper record of this meeting. As this may take place under time restraints it may not be possible to have a witness present. I would suggest using a mobile phone to record the content of the meeting, if, for example, it is at the courthouse. Advise the client that what you are doing is protecting the record between the two of you so there is no confusion in the future as to what was said during the meeting.

My advice is that the meeting begins with an explanation of the problem raised by this new information or evidence.

One of the steps suggested by Layton and Proulx is that the impact of counsel’s knowledge on the trial process must be determined in the context of the case at hand and then discussed with the client.58 This should, whenever possible, include a careful reading with the client of the commentary [10] restrictions going forward. This should be explained carefully in layman’s terms after the wording of the commentary is conveyed verbatim.

Once all of the relevant Rules, commentaries and consequence are clearly explained to the client there may be a number of variables which must be considered including: a) Does the client accept the restrictions on your ability to act? b) Are you prepared, in light of the disclosure, in the context of the proceedings themselves, to continue representation of the accused? c) Is the accused prepared to accept the consequential fallout resulting from the necessity to follow the Rules of Professional Conduct? If not, you must seek the permission of the client to withdraw from the proceedings. This may, itself, be an adequate signal to the court that you have been confronted with an ethical problem.

If the court seeks further information, counsel must remain circumspect and say little more than the withdrawal is sought “for ethical reasons.”59 d) Be mindful of the fact that “continuing to act but ignoring the client’s instructions is prohibited, as is carrying out these instructions in breach of ethical rules.”60

58

Ibid at p. 45.

Ibid.

60 Ibid.

59

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Clearly this is an ethical minefield which must be navigated with great care and skill. You must ensure, to the extent possible that you do not blow up the client’s case or yourself.

I would also advise that Rule 5.1-2 (b) (e) (g) (h) apply and that these provisions should be read to the client. At each stage, ask the client if he/she fully understands the meaning and implications for the trial process itself of adherence to these Rules. Whenever possible, have the client sign a written acknowledgement of his/her complete understanding of these Rules and detailing final instructions too counsel.

If necessary, consider having the client meet with senior counsel for independent legal advice and get a certificate of the Independent Legal Advice (ILA) signed prior to taking any fresh steps.

Notwithstanding that you may perceive that you are standing in the middle of a firestorm, do not panic or stress; anxiety and uncertainty are the enemies of good decision-making.

A number of additional considerations and steps are extremely important at this juncture.

First, always keep at the forefront of your thought process that the “confession” does not release you from your obligations under the realm of solicitor-client privilege or the duty of confidentiality. This “confession” itself is privileged as are all the discussions surrounding it.

Second, the court should be provided at this stage with no information as to why an adjournment is required. I would say no more than “an important issue has arisen requiring me to ask for an adjournment in order to give it my full and proper consideration.”

I would also advise the client of the context of s. 650(3), of the Criminal Code, which states: “An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.”61 There is some useful case law annotated under this section that may assist counsel in addressing any ethical impasse with a client.

“An accused has the right to make full answer and defence personally, and counsel cannot be forced upon an unwilling accused. Where the accused wishes to discharge counsel part way through his trial he must be permitted to do so.”62

61 62

Criminal Code, R.S.C., 1985, c. C-46, s. 650(3) [emphasis added].

R. v. Bowles and Danylak, [1985] A.J. No. 1056 (Alb. C.A.).

28

Thus, while it is clearly preferable that new counsel be made available to the accused when original counsel either is released by the accused or permitted to get off of the record before or during the trial on ethical grounds, given the complexities of modern criminal litigation, counsel should advise the client to seek new counsel but also must advise of the provisions of this section.

PART II: “Ain’t It Fun Living In The Real World? Ain’t It Good Being All Alone?” (Paramore) Many criminal defence counsel practise as sole practitioners. Some are also engaged in other areas of practice. Many counsel have less than five years of experience at the bar. Some do not have mentors or senior counsel they can call on for advice.

My objective in Part II of this presentation is to provide practical “real world” advice for all counsel no matter what their level of experience may be. One of the most attractive aspects of practising criminal law is that we never stop learning. One thing I have learned over almost 40 years of practising criminal defence is that we must develop techniques that maximize our ability to manage the solicitor-client privilege relationship in criminal cases. Our clients will come from a broad spectrum of society. Their financial resources will vary significantly. Their levels of experience with the criminal courts will also be different, from the first offender unlikely to ever get into trouble with the law again to the repeat offender, sometimes referred to as the “RRSP client.”

Similarly, there is a broad spectrum in the nature of criminal practices, from high volume legalaid clients to lower volume private retainer clients.

Statistically, the vast majority of charges will result in pleas of guilty and resolutions. The offences that most frequently proceed and occupy trial courts will have a familiar ring: impaired driving and other driving offences, theft, fail to comply with court orders, common assault and breach of probation charges lead the list of cases completed in adult courts every year.

Readers will readily note from this paper that there are numerous academic articles on the subject of “defending the guilty client.” Unfortunately, there are few, if any, published articles written by seasoned practitioners who have spent decades in the trenches and have bumped up against virtually all of the issues that may arise in this context.

Over the years I have come to develop what I refer to as a “Risk Analysis Model” for our firm’s practice. This may sound vaguely like reference taken from the insurance industry. I look at it as an assurance technique/model. It advances a dual purpose. Firstly, it protects clients. It informs them and vests them with an understanding of our very complex criminal justice system. Secondly, it seeks to vanquish misunderstandings between client and counsel thereby immunizing counsel 29

from specious claims of unprofessional conduct. Most importantly, however, it is a road map for the successful development of the solicitor-client relationship, from the first interview until the conclusion of the client’s file.

By adopting a model such as this counsel will also create a protective shield against increasing claims in the courts concerning ineffective assistance by counsel.

In our practice we will conduct detailed interviews with the client over the course of the retainer.

The essential first building block of a successful solicitor-client interview will be the initial conference. It is an opportunity to develop a relationship with the client as a person, not merely as an accused. Counsel can garner useful information concerning what motivates the client, how the client thinks, including his/her level of intelligence. Is the client articulate in unfolding their narrative concerning the events? As soon as the client sits down in front of me I begin to assess during this interview whether this person will be a credible and reliable witness if it is necessary to call him. Keep in mind, although it is not the same as testifying in the courtroom, this initial meeting will normally be an excellent opportunity to assess the client when he/she is highly anxious and stressed about their situation and their future.

From the outset, we tell clients that, as the case unfolds through its various layers of procedure, we want to manage their expectations concerning their file. The most common complaints I hear from clients migrating to our firm from other firms include, “I don’t know what my case is about,” “I don’t know what is going on with my file,” “my lawyer never contacts me,” “my lawyer seems to have no plan for my defence or winning the case,” “I have lost confidence in my lawyer,” “I no longer trust my lawyer” or “I have never viewed the disclosure.”

During the initial meeting I advise clients of our approach, borrowing terminology from the insurance industry and adopting it to the defence strategy and plan as it develops going forward with the file: 1. Risk Assessment 2. Risk Mitigation 3. Risk Management

1. Risk Assessment This is a process-driven exercise that organizes our understanding of the clients needs and expectations as well as our thinking and strategic approach to the case. This process begins with this interaction and information obtained from the client at the first meeting and ends with the trial process. It starts with an assessment of the case so that one can reach an opinion based on a criterion 30

similar to the Crown manual requirement to determine if there is a “reasonable prospect of conviction”; I call it the “reasonable prospect of acquittal.”

We advise the client we will receive an initial disclosure package based upon a detailed request which we formulate based upon the nature of the charges. We also tell the client that we will conduct follow-up disclosure requests until we are satisfied we are in possession of all of the “possibly relevant” materials as mandated by R. v. Stinchcombe and subsequent court decisions.

We describe how Crown disclosure is the lifeblood of our assessment of their file. We provide the client at this initial meeting with our tentative outline for conducting this type of file, based on our experience.

I advise the client as to the information we want to obtain at this initial meeting. This will depend on the nature of the file, taking into account complexity, magnitude, and the client’s ability to comprehend the information flow.

2. Risk Mitigation Risk mitigation is again a dual process aimed at clarifying our own role and the legal and ethical barriers as well as the client’s role in the process. This element is also aimed at preparing the client for the variations in result that they may expect in our system. These results include, but are by no means limited to, a full acquittal, a partial success, or a plea resolution. This, of course, depends on the nature of evidence disclosed and the defences available.

In the early going, I define for the client what I consider a “successful outcome” to their case. I use the vivid example of a client charged with first degree murder. I advise that the sentence upon conviction is life imprisonment with no chance of parole until 25 years have been served. I then tell the client that a trial which results in a conviction for manslaughter with no minimum sentence is, in certain circumstances, viewed as a huge victory, albeit not a “total” one.

In this context I like to tell clients that in the stock market, “bulls make money, bears make money, and pigs get slaughtered.” Pigs are high-risk investors. They are emotional and impatient; they often look for one big score, and rarely do their due diligence. There is an analogy to be drawn to the criminal justice system in situations where the client has unreasonable expectations. I advise clients that, where guilt can be proven beyond reasonable doubt on the principal charges, that a verdict or a plea resolution that significantly lowers the client’s sentencing exposure is a successful exercise in risk mitigation. Clients are advised not to get “greedy.” If they can live with the result you have achieved in a plea discussion, such as a section 810, I strongly urge them to “grab it and run.”

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3. Risk Management When describing risk management, I advise clients that this includes managing unreasonable expectations. Managing the client’s exposure to risk may include an unanticipated positive or negative disposition of their case. We describe the prosecutor’s role in the proceedings and the role of the trial judge and/or jury. An informed and educated client, to the extent we can make this possible, is usually a satisfied client.

An important part of this process is a retainer letter with or without a formal retainer agreement.

We will always use an agreement format when dealing with larger complex files. In either instance, we make it clear to the client there are limitations outlined in the Rules of Professional Conduct and the rules of the Court. We make it clear what our financial requirements are for the case and what their obligations are going forward, including payment plans/or arrangements. On any complex file or with respect to a “difficult client”, a client with mental health disabilities, or with a youthful client, we want to ensure there is a complete understanding of our role, as much as is possible.

I provide the client with guidance so that he or she may completely understand key matters in relation to the role we play as criminal defence lawyers. These will include, depending on the circumstance, information concerning fundamental principles of criminal law, including: 1. The presumption of innocence; 2. The burden of proof beyond a reasonable doubt which rests with the prosecution. I illustrate this with a comparison of the scales of justice illustrating the balance of probabilities standard versus proof beyond a reasonable doubt. Proof beyond a reasonable doubt falls just short of absolute proof. I further explain that this applies to each essential element of the charge against them; 3. I will often tell clients that decisions made concerning whether we will call evidence, who we might call and what required evidence will be is to be determined following witness interviews. Clients frequently are mistaken concerning the credibility, reliability and content of what their proposed witnesses may say; 4. We also provide a broad outline of what the process is about, and how it unfolds. We will explain the process to them: a. b. c. d.

Know your client forms Designation of counsel forms Remand court Counsel Pre-Trials 32

e. f. g. h. i.

Judicial Pre-Trials Trial election options depending upon the nature of the offence The trial process, the order of calling witnesses, the election to testify or not Closing submissions, oral and written R. v. W.D. and how the trier of fact is required to assess evidence. We will also explain the important difference between the credibility and reliability of witnesses as defined in R. v. Morrissey j. The consequences of a finding of guilt, including sentencing options and ancillary orders available. Often, a conviction may affect a family or civil proceeding, or have adverse effects on a client’s immigration, employment status, or reputation in the community. (Depending on the situation, I will refer clients to lawyers versed in these areas or seek input from my non-criminal law colleagues). k. I also explain the importance of their constitutionally guaranteed rights under the Charter of Rights. This will include a brief discussion about Charter applications and the relevant provisions which could, potentially, play a role in their case including s. 24(1) and s. 24(2).

Discussion of the matters listed above enhances the client’s confidence in you as his or her counsel and in the system at large. It eliminates misunderstandings. Knowledge is power. The client will now have a grasp of the path forward and the fundamentals relating to their case and how it will progress.

Finally, at this stage I advise the client that the barrister’s role is not one which involves acting as mere “mouthpiece” for the client. We are advocating for them in this process which requires us to comply with the legal, and ethical constraints imposed upon us. At the same time, it is often necessary to put the client at ease by advising them that the nature of the charge, no matter how serious or embarrassing, is not going to influence how we will conduct their case. In our system we are not judges. Our role is to protect their legal and constitutional rights within the framework of the Rules of Professional Conduct.

The reality for most of us is that, in respect of the majority of criminal files we handle, our clients will find themselves, at inception, in a position where there will be a reasonable prospect of conviction. This is so, if not on the original, principal charge(s), perhaps on a lesser and included, or related charge. This assessment may be based on circumstantial evidence, a confession, or other evidence such as videos, or mobile phone recordings. Indeed, these things together may constitute clear and unequivocal proof of guilt.

Accordingly, it is useful to examine a number of fact patterns to determine the ethical path that criminal counsel must follow in pursuing the client’s defence. While it is impossible to create a 33

complete roadmap for a ‘successful’ defence applicable in every case, most criminal cases will be defended based on a variety of strategic approaches that include: 1. Creating reasonable doubt about an essential element of the offence(s) charged; 2. Establishing a Charter violation and successfully convincing the Court to exclude the evidence pursuant to s. 24(2) or s. 24(1) of the Charter of Rights; 3. Obtaining a stay of proceedings due to police or Crown misconduct, including undue delay; 4. Using common law exclusionary rules to eliminate inculpatory evidence, such as incriminating statements, by arguing that they are not voluntary.

5. Using statutory provisions such as the Canada Evidence Act to bar admission of evidence.

Notably, in many instances, these strategies will result in an accused who is ‘apparently guilty’ of an offence being acquitted.

By way of illustration, let us look at a simple example: an information containing charges of impaired operation of a motor vehicle and operation while over 80.

Tactically, counsel will adopt a divide and conquer approach. Changes to the Criminal Code and Supreme Court jurisprudence have made it very difficult to lead evidence to the contrary (or the “Carter defence” as it was once known). The Courts have, on a number of occasions, determined that modern breathtaking devices such as the Intoxilyzer 8000C are scientifically reliable for court purposes. This is explicitly addressed in paragraph 111 of R. v. Grant.

The strategy now is often to obtain an order pursuant to s. 24(2) of the Charter excluding the samples, and thus defeating the over 80 charge. A collateral attack should also be mounted on the evidence of physical sign of impairment. Counsel should keep in mind the Stellato standard relating to proof of impairment as well as the comments made in R. v. Graat about police bias.

Counsel will attempt to pull apart this evidence using, in aid, cell block and breath test videos, (R. v. Nikolovski) to contradict police notes (see my paper on “Cross-Examining Police Officers: Thinking Outside of the Toolbox”) and testimony showing the evidence is unreliable and not credible. Such proof may also advance a Harrison argument to supplement your s. 24(2) application on the basis that the officer lacks credibility or was misleading when testifying in court.

There may be a common law voir dire on the voluntariness and admissibility of an inculpatory statement to the officers.

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These comments underline the frequency with which counsel are confronted with cases that, at first blush, disclose a clear path to conviction on one or more charges.

Case Studies/Critical Issues Relating to Legal Ethics in Criminal Law In the course of every criminal practitioner’s practice they will be confronted from time to time with what I call the “law school exam question”: scenarios that are ambiguous and may attract multiple answers to the same questions. Oftentimes, all of these answers are legitimate in their own way. Such a question will include a wide variety of legal, constitutional and ethical issues requiring the application and exercise of critical thinking and decision making.

My major complaint concerning the books and articles written by legal ethicists is that there is often a problem posited which is couched in black and white certainties which, in the world of the practitioner, are in reality, often unknowns.

Context is everything. The biggest issues writers have explored may be broken out broadly as follows: a) When there is convincing evidence of guilt, whether the source is found in solicitor-client discussions, or the evidence to be elicited at trial, can counsel call the client at all? b) What is the scope of permissible cross-examination of Crown witnesses? c) Is the scope different where counsel knows the evidence of the witness is truthful? d) What is counsel to do in a situation where it is clear the client will commit perjury if he testifies and insists on doing so? e) Are the credibility and reliability of Crown witnesses at trial always in play?

For counsel there is no more terrifying and nerve-racking case than the one where you believe that the client is factually innocent. However, in such situations, the restrictions on cross-examination are far less daunting and problematic.

Of course, in most cases, there may be disclosure of evidence demonstrating that the client is guilty of an offence and will be convicted unless counsel can successfully exclude evidence which will preclude such a finding.

The topic of this paper and this talk is on the defence of the “guilty” client at trial. Thus, for this part of the discussion the operative principle is that there is information, whether from the client or arising out of the disclosure demonstrating the client is guilty, factually and/or legally.

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Layton and Proulx have suggested that there are “four provocative and interrelated scenarios often raised in ethical debates.”63 It is useful to see how these translate into counsel’s considerations in the course of a real world trial. These scenarios are:64 1. “How far can counsel go in testing the reliability of a truthful witness?

2. Can counsel cross-examine a witness to attack the reliability of testimony he knows or suspects to be inaccurate, even though counsel also knows the accused is guilty?

3. Can defence counsel call truthful evidence as part of the defence case and then use the evidence to suggest the client did not commit the crime?

4. Can counsel make final submissions that suggest a possible defence, based on evidence led by the Crown, even though the defence is inconsistent with counsel’s knowledge of the client’s guilt?”

Prior to addressing these particular questions, it is important to review the comments by Doherty J.A. in R. v. Morrissey, relating to credibility and reliability.

“Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’ sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’ testimony. The accuracy of a witness’ testimony involves considerations of the witness’ ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’ credibility. When one is concerned with the accuracy of a witness’ testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.”65 It is also useful to examine the Supreme Court decision in R. v. Lyttle, 2004 SCC 5, a case referred to broadly by the authors.66 Lyttle is not specifically a case dealing with a scenario where the lawyer knows definitively his client is guilty. Rather, it establishes conclusively that counsel can put questions to a witness in cross-examination “regarding matters that need not be proved independently” by means of leading evidence separate from the cross-examination itself, provided counsel “has a good faith basis for asking this question.”

63

Layton & Proulx, supra note 1 at p. 48.

Layton & Proulx, supra note 1 at p. 48.

65 R. v. Morrissey, [1995] O.J. No. 639 at para. 33 (Ont. C.A.).

66 Layton & Proulx, supra note 1 at pp. 48-53.

64

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Thus, it was ruled permissible for the cross-examiner to “pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition” and there is no requirement of an evidentiary foundation for every factual suggestion put to a witness in crossexamination.67 The court adopted the view as articulated in two other cases which are of relevance to the topic at hand: “In R. v. Anandmalik (1984), 6 O.A.C. 143, at p. 144, the Ontario Court of Appeal recognized that the importance of cross-examination becomes even more critical when credibility is the central issue in the trial: In a case where the guilt or innocence of the [accused] largely turned on credibility, it was a serious error to limit the [accused] of his substantial right to fully crossexamine the principal Crown witness. It would not be appropriate in the circumstances to invoke or apply the curative provisions of s. 613(1)(b)(iii) [now s. 686(1)(b)(iii)].

The Manitoba Court of Appeal echoed these sentiments in R. v. Wallick (1990), 69 Man. R. (2d) 310, at p. 311: Cross-examination is a most powerful weapon of the defence, particularly when the entire case turns on credibility of the witnesses. An accused in a criminal case has the right of cross-examination in the fullest and widest sense of the word as long as he does not abuse that right. Any improper interference with the right is an error which will result in the conviction being quashed.”68 Interestingly, Lyttle was a case where the victim identified the accused in a photo lineup. The approach by the defence did not involve attacking the identification process or the validity of the lineup procedures. Rather, the cross-examination focused on the proposition that the complainant was not beaten over the theft of a gold chain as he asserted. It was about him being beaten over an unpaid drug debt and identifying the accused in order to shelter the real offenders – his associates in a drug ring (there was substantial evidence in police notes and reports supporting this drug theory).

In answering the question more definitively as to how far counsel can go in testing the reliability of a truthful witness, counsel can be guided by the following: 1. We must define what areas of the witness’s evidence are “known” to counsel to be true.

Certain more definitive comments may be made: a) Lyttle makes it clear that the defence has broad scope within which to pursue questions concerning the “credibility” of Crown witnesses.

67 68

Lyttle, supra note 47 at para. 48.

Ibid at paras. 69-70.

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b) Morrissey confirms that “credibility” and “reliability” are separate elements to be addressed, challenged, and analyzed separately. c) Rule 5.1 commentary [10] provides for specific restrictions on cross-examination in such situations. d) Recall that the law makes clear that an honest witness, i.e. one normally considered credible because they are attempting to tell the truth may, nonetheless be gravely inaccurate or mistaken, i.e. unreliable. The large number of wrongful convictions based on eyewitness testimony later proven to be mistaken by definitive DNA evidence is a testament to the dangers of conflating credibility and reliability. e) Lyttle itself does not prohibit any attacks on the reliability of a witness known to be truthful. Nothing in the case prevents counsel from making suggestions to a witness in cross-examination so long as they met the aforementioned criteria discussed in the case.69 f) As long as counsel puts suggestions to the witness which are posed in such a way that they (i) do not contravene the Rules of Professional Conduct; (ii) are not asked in bad faith; (iii) are based on “inferences, belief, reasonable inferences, experience or intuition” (without first proving a necessary factual foundation), those suggestions are permissible.

2. There is no prohibition, subject to the Rules of Professional Conduct, against crossexamining a witness as to their reliability, notwithstanding counsel knows the accused is ‘guilty.’ Remember: a) The Crown bears the onus of proving the case beyond a reasonable doubt. b) It is not prohibited by Lyttle. c) The arguments in support of a prohibition are not compelling.70 d) The authors conclude that “counsel never acts unethically in impeaching the reliability of a truthful witness within the constraints set out in Lyttle” in order to argue reasonable doubt exists.71 e) Importantly, Gavin Mackenzie who has written about ethics and the Rules and is recognized as an expert in this area states:

69

See also Layton & Proulx, supra note 1 at pp. 50-51.

Layton & Proulx, supra note 1 at pp. 54-55.

71 Ibid at p. 60.

70

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“Clearer language would be required to alter the traditional view of that it s entirely proper for criminal counsel to discredit or impeach the evidence of witnesses whom they know are testifying truthfully.”72 f) The authors propose some restrictions and guidelines concerning impeaching credibility.73 These are not binding however. g) When a witness provides perjurious evidence in a case where the client is obviously guilty there is no bar on attacking this part of the testimony. “Counsel is therefore completely justified in using cross-examination to challenge testimony that is known to be perjurious, mistaken or exaggerated, this even though the client has confessed guilt.”74 (An example cited is the jailhouse informer who falsely accuses the client of having confessed to him. The accused denies this is true, notwithstanding having confessed to the lawyer that he is guilty. There is no ban to a frontal attack on the credibility and reliability of such a witness).

3. a) Counsel must not set up an “affirmative case inconsistent with the admissions made by the client.” This means counsel cannot call any evidence known to be false such as an alibi intended to show the accused did not commit the offence that he has confirmed to his lawyer he did commit. This principle reflects the position taken in the Rules.75 b) Layton and Proulx correctly raise the point that if an eyewitness testifies about physical attributes possessed by the accused which are inaccurate, the defence may call evidence demonstrating the truth about those attributes at the time of the offence, for example, hairstyle, hair length, facial hair, height, weight, language proficiency. Therefore, it would not be improper to cross-examine the witnesses on these same issues per Lyttle as this is an attack on the accuracy or reliability of their evidence. Given there is no prohibition on cross-examination of the witness presented with the incorrect description, the defence would have to call evidence (after complying with the rule in Browne v. Dunn), of witnesses to testify as to the attributes in question.76 c) Counsel may appropriately argue for an acquittal based on reasonable doubt arising from the lack of reliability concerning the identification evidence of the principal eye witnesses.

This amounts to no more than a challenge to the Crown’s ability to prove its case. This is quite different from the accused’s counsel advancing an affirmative defence showing the

72

Gavin Mackenzie, Lawyers & Ethics: Professional Responsibility and Discipline (Toronto: Carswell, 2009) at s 7.4 73 Layton & Proulx, supra note 1 at pp. 59-60, 63.

74 Ibid at p. 64.

75 Ibid at p. 65.

76 Such was the situation in R. v. Li, [1993] B.C.J. No. 2312 (B.C.C.A), leave to appeal to S.C.C. refused, [1994] SCCA No. 209.

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accused is not guilty i.e. innocent of the offence, when this is known by counsel to be false.

This would also be contrary to the Rules of Professional Conduct and R. v. Lyttle. d) Another example cited, with a twist, would be in a robbery case alleged to have taken place at a specific time and place testified to by witnesses. There would be no impediment to counsel calling evidence he believes to be true concerning the location of the accused in a case where the Crown witnesses are mistaken about the time of the offence. There is a robbery and the victim erroneously testified it took place at 10:30 p.m. when it was actually at 10:00 p.m. Counsel would be permitted to call truthful evidence that the accused was at a different location at 10:00 p.m. The authors submit that this does not breach the prohibition of calling an affirmative defence of alibi. Perhaps it comes perilously close to doing so. However, there is no prohibition as the “alibi evidence” is true and accurate; it is the unreliable evidence of the Crown witness(es) that is the problem. Counsel could then argue reasonable doubt exists in the Crown’s case, but go no further, i.e. argue that the accused has an alibi which has been proven.

4. Layton and Proulx address the making of submissions that rely upon truthful evidence to suggest a false conclusion.77 The fact pattern suggested has two parts: Part 1: There is evidence proving the accused is loading stolen electronic equipment into the back seat of a car. The mens rea is crucial: did he know the items were stolen. If he knew they were why would he not put them out of sight in the trunk?

Part 2: The accused tells counsel he knew the property was stolen and used the back seat because the trunk was stuck.

In the first part there would be no ethical impediment to arguing that the court or jury draw the conclusion he did not know the goods were stolen. In the second part, the waters are muddied from an ethical perspective.

The authors state “the best answer to this troubling dilemma is for counsel to put the possibility to the jury, despite knowing it to be false, but in doing so not to assert the possibility is in fact true.”78 This, in my view can be prohibited by Rule 5.1-2(g) and may trespass commentary [9] to Rule 5.1.

At this junctive it is important to revisit the issue of the lawyer’s knowledge of the guilt of the client. There is no positive obligation on counsel, generated by the Rules, to make an inquiry of the client as to guilt relating to the charges faced by the client. In this respect it is useful to address what Rule 5.1 Commentary [10] says, yet again:

77 78

Ibid at pp. 69-70.

Ibid at p. 70.

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“[10] Admissions made by the accused to a lawyer may impose strict limitations on the conduct of the defence, and the accused should be made aware of this. For example, if the accused clearly admits to the lawyer the factual and mental elements necessary to constitute the offence, the lawyer, if convinced that the admissions are true and voluntary, may properly take objection to the jurisdiction of the court, the form of the indictment or the admissibility or sufficiency of the evidence, but must not suggest that some other person committed the offence or call any evidence that, by reason of the admissions, the lawyer believes to be false. Nor may the lawyer set up an affirmative case inconsistent with such admissions, for example, by calling evidence in support of an alibi intended to show that the accused could not have done or, in fact, has not done the act.

Such admissions will also impose a limit on the extent to which the lawyer may attack the evidence for the prosecution. The lawyer is entitled to test the evidence given by each individual witness for the prosecution and argue that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged, but the lawyer should go no further than that.”79 This is not about the lawyer deliberately electing to remain wilfully blind concerning the client’s culpability. Albeit, there will be circumstances when the lawyer must know if the client is implicated. One example would be the necessity for counsel to know that the client agrees that the essential elements of the offence are made out as a prerequisite to initiating plea resolution discussions at the behest of the client. Counsel cannot move forward when the client adopts the mantra “I didn’t do it but I just want to get it over with and plead guilty.”

PART III: Defence Strategies Lawyers who migrate to the practice of criminal defence do so for a number of reasons. Whatever one’s motivations for doing so, they quickly learn that it offers an opportunity to be creative and imaginative in devising defences for clients. This is particularly so when engaged in the defence of a “guilty” client.

Earlier in this paper, I provided five areas, broadly speaking, which counsel may pursue on behalf of a “guilty” client. Here, I propose to explore, somewhat briefly, a number of creative approaches to winning problematic cases where the evidence disclosed may, initially, seem to offer little hope of success. Counsel are already closely acquainted with the Charter-based approaches for excluding evidence at trial. The focus of this section will be elsewhere, on real world approaches available to defend a “guilty” client ethically. These strategies are compliant with Rules 5.1-1, and in particular, commentaries [9] and [10].

79

Rules of Professional Conduct, supra note 18 at p.75 [emphasis added]

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1. Common Law Exclusionary Rules Justice David Paciocco and Professor Lee Stuesser remind us in The Law of Evidence not to forget that there is a residual, common law discretion to exclude evidence in a variety of situations: “One gives judges the discretion in criminal cases ‘to exclude evidence obtained in circumstances such that it would result in an unfairness if the evidence was to be admitted at trial.”80 “In the language of the cases, evidence can be excluded as a matter of discretion where its prejudice (or costs) outweighs its probative value, even where that evidence otherwise complies with the rules of admissibility.” 81 “In R. v. Handy, Justice Binnie accepted when applying the similar fact evidence rule that governs bad character evidence relating to the accused that ‘where admissibility is bound up with, and dependent upon probative value [as it is where the Crown wants to lead evidence about the uncharged misconduct of the accused on other occasions] the credibility of the evidence is a factor that the trial judge…is entitled to take into consideration.’” 82 A detailed analysis of the relevant case law may lead counsel to fertile ground for argument to exclude crucial evidence based on these common law principles. Whether there is any ethical impediment to utilizing one of these approaches will depend on the particular facts of your case.

2. The Common Law Voir Dire to Determine Voluntariness of Statement One of the most common situations counsel encounter relates to the admissibility of statements.

Even if a Charter breach cannot be proven or, if proven but the breach does not result in exclusion under s.24(2), counsel should remain cognizant that the common law approach to challenging the voluntariness of the statement may frequently be more effective and less cumbersome.

The defence no longer bears the onus when voluntariness is in issue; rather, proving the voluntariness of the accused’s statement is entirely a Crown burden. Unlike a Charter breach, which is assessed on a balance of probabilities, the Crown must prove the voluntariness of the accused’s utterances beyond a reasonable doubt. Remember that without an explicit waiver as to the voluntariness of the accused’s statements, the Crown must enter into a voluntariness voir dire.

This requires that the Crown delineate precisely what utterances it seeks to admit.

80

David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law Inc., 2015) at p. 38; see also R. v. Buhay, [2003] 1 S.C.R. 631 at para. 40.

81 Ibid at p. 39.

82 Ibid at p. 42; R. v. Handy, 2002 SCC 56 at para. 134.

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Lawyers who practised pre-Charter will feel very comfortable litigating in this context given it was once one of the few available tools to challenge the admissibility of inculpatory evidence.

Another advantage to this approach is it provides judges with a far less nuanced approach to evidentiary exclusion. The multi-tiered Charter analysis can be complex and time consuming and the analysis itself may be more vulnerable to appellate review.

The strategy adopted by counsel in this area can generally be divided into several parts: (i) Have all the principal police personnel who had contact with the detainee been called to testify?83 For example, this may include special constables involved in intrusive searches.

All the surrounding circumstances leading up to the making of the statement should be explored on the voir dire. (ii) Have these officers, particularly those involved in the questioning of the detainee created a complete record of everything said up to and including the inculpatory utterances?84 This is especially important in cases where there is no audio/video recording; for instance, when an utterance is made in the police vehicle while the accused is being transported to the station. (iii) The necessity to make an audio / video record of the questioning and interrogation is now well-accepted and defined by our appellate courts, particularly in Ontario. The onus will be on the Crown to explain why the absence of such a record should not result in exclusion.85 The availability of mobile device to record utterances in the field make it difficult to argue that an utterance could not be recorded at all.

In the majority of cases an attack on the evidence presented during the Crown voir dire will generally focus on these areas or some variation of them. The goal is to ensure the Crown cannot meet the negative onus of establishing beyond a reasonable doubt that there has been no fear of prejudice, hope of advantage, threats or inducements,86 which resulted in the accused making the statement in question. I might add, it is often the case that the Crown will simply guide the officer through these areas of concern by simply asking if any of these things (i.e. threats, inducements or promises) took place during questioning. Most of the time, the Crown will not ask the officer what

83

R. v. Botfield, [1972] B.C.J. No. 492 (B.C. Supreme Ct.); R. v. Koszulap, [1974] O.J. No. 726 (Ont. C.A.); R. v.

Oickle, 2000 SCC 38.

84 R. v. Bloomfield, [1973] N.B.J. No. 43 (N.B. Supreme Ct.); R. v. Belanger, [1978] O.J. No. 513 (Ont. Supreme Ct.; High Ct. of J.); R. v. Smith, [1981] Q.J. No. 376 (Que. Sup. Ct.).

85 R. v. Moore-McFarlane, [2001] O.J. No. 4646 at para. 65(Ont. C.A.); R. v. Ahmed, [2002] O.J. No. 4597 at para.

14 (Ont. C.A.); R. v. Oickle, 2000 SCC 38.

86 R. v. Oickle, 2000 SCC 38.

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this terminology even means. For my part, I have never cross-examined a police witness in a voluntariness voir dire who can properly define the meaning of an “inducement”, yet they will always say there were none offered.

Often defence counsel will do better on the voir dire where there is no video record for the reasons noted above. That said, the video record can also be beneficial in demonstrating such fundamental problems as the client’s failure to comprehend the statement caution itself. Just because the detainee has access to a lawyer before an utterance is made, does not ensure the Crown will have success on the voluntariness voir dire. Canadian citizens come from diverse backgrounds. I would add yet another consideration which includes language proficiency and the provision of interpreters. Here, the voluntariness voir dire dovetails with s.10(b) rights.

Also, counsel should be on the lookout for sloppy instructions and cautions by police officers that often make no sense. For example, the caution card may begin with the wording, “You may be / You will be / You are charged with the offence of…” Rather than selecting the correct reason to read to the detainee, the officer may read them all. Combine this with the arrest notice which may conflict with the caution, and confusion reigns. Layer on the ss.10(a) and 10(b) notices which may not differentiate between “detention” and “arrest”, and there is increased complexity.

I often point out in Court that if the officer did not fully comprehend his or her own intentions and actions, how could the citizen properly do so?

Finally, where a video of the interrogation exists, officers may forget that their comments are recorded in the first place. They can often be caught trespassing the above noted parameters.

In these situations, where your client will have confessed his/her guilt to the offence with which he/she is charged, there is no ethical impediment to challenges concerning the admissibility of the very statement that is essential to the Crown’s proof of that guilt on the basis that it was not made voluntarily even if the client confesses to you the contents of the statement are true. The principal concern is not truthfulness but admissibility.

Counsel must also be aware that client may confess to crimes he or she did not actually commit.

For many years, the courts were resistant to the notion that a person would ever confess to crimes of which they were not guilty. The work of psychiatrists, psychologists and sociologists have convincingly rebutted this presumption in many cases.87

Richard Ofshe and Professor Time Moore have written about this issue at length. See e.g. “falseconfessions.org” and “Interrogations and Confessions: Where Have We Been and Where Are We Headed?” For the Defence vol. 33 no.1 at p.87. See also cases such as: R. v. Oickle, 2000 SCC 38; R. v. Trochym, 2007 SCC 6; R. v. Armishaw, [2011] O.J. No. 4662 (Ont. Sup. Ct.).

87

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The use of the Reid Technique for interrogation is something about which counsel should have a deep understanding. Meanwhile, although a client may believe that polygraph testing will establish his or her factual innocence, it is often used by police as a tool for deceptive interrogations. Our courts have given considerable leeway to police interrogators to lie, deceive, and mislead detainees during interrogations. Counsel must be familiar with the case law in this area.88 This particular concern has been elevated by the recent S.C.C. judgment restricting the use of “Mr. Big” scenarios to obtain confessions.89 A statement made by your client amounting a confession of guilt may nevertheless be false. In reality, you may not be defending a client who is guilty in either the factual or legal sense. Thus, you should not reject his or her protestations of innocence out of hand notwithstanding the content of the statement.

3. Expert Witness Evidence / Opinion: Admissibility The admissibility of the evidence of an expert witness may be absolutely essential to the Crown’s ability to prove the case beyond reasonable doubt.90 This area of testimony offers counsel a number of pathways to challenge not only the admissibility of the evidence but also the accuracy or even the truth of the evidence. Many counsel find it very daunting to prepare for a cross-examination of an expert witness. Basic principles must be kept in mind: 1. Counsel must gain a clear understanding of the four preconditions to the admissibility of the expert opinion: (1) necessity in assisting the trier of fact, (2) relevance, (3) a properly qualified expert, (4) “the absence of an exclusionary rule” that would be offended by the admission of the evidence.91 2. Counsel must never forget that the expert opinion evidence is “presumptively inadmissible.” The burden will be on the Crown to establish each of these component elements on the balance of probabilities.

3. The judge occupies an important “gatekeeper function” to ensure unwarranted expert evidence is not admitted. “Specifically, the judge is to evaluate whether the “cost” or problems caused by admitting the expert evidence would outweigh the benefits of doing so.” If it does, the evidence will be inadmissible.92

88

See R. v. Singh, 2007 SCC 48; R. v. Sinclair, 2010 SCC 35; R. v. Oickle, 2000 SCC 38.

R. v. Hart, 2014 SCC 52.

90 R. v. Dimitrov, [2003] O.J. No. 5243 (regarding footprint impression morphology); R. v. Abbey, 2009 ONCA 624 [Abbey] 91 R. v. Mohan, [1994] 2 S.C.R. 9 92 R. v. J.-L. J., [2000] 2 SCR 600 at para. 40 89

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In R. v. Abbey, Doherty J. called for the rise of a two-stage process of analysis: first, address the four rules based preconditions for admissibility; then address the “gatekeeping” balancing function.93 4. There has been a long debate in Canadian jurisprudence about whether bias partiality and lack of independence of an expert opinion evidence should go to considerations of the weight alone to be attributed to that evidence or should extend to a fundamental consideration of admissibility. Secondly, at what stage could defence counsel mount this attack?94 In the recent judgement of the Supreme Court of Canada in White Burgess, this issue was finally resolved.95 The decision places new and valuable tools in the hands of defence counsel seeking to exclude expert opinion evidence. This issue is addressed under the Mohan analysis section titled “The Properly Qualified Expert.”

Given the increasing frequency with which experts in a case are being called by the Crown (and to a lesser degree by the defence) it is important to read and understand the implications of this judgment. Although it is a civil case, it will have a general application in a criminal trial.

The guiding principals and procedures for vetting the expert are accurately summarized in the head note.

“The inquiry for determining the admissibility of expert opinion evidence is divided into two steps. At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four factors set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 (relevance, necessity, absence of an exclusionary rule and a properly qualified expert). Evidence that does not meet these threshold requirements should be excluded. At the second discretionary gatekeeping step, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence.

Expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty and able and willing to carry it out. The expert’s 93

Abbey, supra note at 90 See R. v. Abbey, [1982] 2 S.C.R. 24 (S.C.C.)., R. v. Docherty, [2010] O.J. No. 3460 (Ont. S.C.J.), Horodynsky Farms Inc. v. Zeneca Corp., [2006] O.J. No. 3012 (Ont. C.A.), R. v. Klassen, 2003 MBQB 253, Alfano (Trustee of) v. Piersanti, [2009] O.J. No. 1224 (S.C.J.), R v Zack (1999), [1999] O.J No. 5747 (Ont Ct J), R. v. Karunakaran, [2008] O.J. No. 3468, R v Lozanovski, [2005] O.J. No. 1322 (Ont Ct J), R v Lindo (1996), [1996] O.J. No. 5604, R. v. Tang, 2011 ONCJ 525, R. v. Parker, 2011 ABPC 49, R. v. Tait, 2012 ONCJ 62, R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, R. v. Nette, 2001 SCC 78, R. v. Natsis, 2014 ONCJ 532, R. v. Stinchcombe, [1991] 3 S.C.R. 326 (SCC) 95 White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 [White Burgess].

94

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opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her. These concepts, of course, must be applied to the realities of adversary litigation.”96 The court has also resolved the debate concerning the stage of the trial at which this process has to be undertaken: “Concerns related to the expert’s duty to the court and his or her willingness and capacity to comply with it are best addressed initially in the “qualified expert” element of the Mohan framework. A proposed expert witness who is unable or unwilling to fulfill his or her duty to the court is not properly qualified to perform the role of an expert. If the expert witness does not meet this threshold admissibility requirement, his or her evidence should not be admitted. Once this threshold is met, however, remaining concerns about an expert witness’s compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role.”97 The role of the trial judge and the trigger for considering such an application and, as well as who bears the onus of proof are further areas clarified: “The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. Absent challenge, the expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met. However, if a party opposing admissibility shows that there is a realistic concern that the expert is unable and/or unwilling to comply with his or her duty, the proponent of the evidence has the burden of establishing its admissibility.

Exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.”98

96

White Burgess, supra note at 95 of headnote Ibid.

98 Ibid.

97

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Cross-Examining an Expert Witness I have included a cross-examination framework providing relevant areas counsel may want to consider when seeking exclusion of expert testimony on the basis of bias, partiality or lack of independence.

“The admissibility of expert evidence may be pivotal to the outcome of a trial. Crossexamination is the most powerful tool available to counsel seeking to prevent the admission of such evidence or to diminish its weight. Counsel seeking to prevent the admission of expert evidence in a criminal case on the basis of impartiality, bias, and lack of independence will need to create a compelling evidentiary record. In certain cases, this goal can be achieved though a well-planned and properly executed cross-examination during qualifications voir dire. Counsel should consider the following range of topics when formulating their cross-examination at this stage: a) A mere connection to one side or the other will not be sufficient to raise bias. A prosecutor calling an expert who is a police officer who works in the same police service as the lead investigators on the case will not automatically disqualify that expert. What is needed is usually a combination of factors which point toward the necessity to disqualify the proposed expert. For example, because police officers work closely with prosecutors, some may actually say that they “work for the Crown” when cross-examined. This admission creates an entry point to pursue further evidence of partiality, bias and lack of independence. b) Where certain errors or a lack of independence are manifestly apparent in the expert report, or in cross-examination, it can be particularly telling when the proposed expert adamantly refuses to acknowledge them. c) Experts should be asked if they understand the concepts of “tunnel vision” or “confirmation bias”. Time and again, these issues arise in both criminal and civil trials. They are most insidious because the witnesses are frequently not conscious of the fact that the formulation of their opinion is tainted by these tendencies to search for and interpret information in a way that confirms their preconceptions. d) When probed, it may also emerge that the particular expert misunderstands the role of an expert witness. e) Counsel should look for evidence that the expert has improperly injected him or herself into the investigation as a whole and adopted the role of being a “co-

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investigator” or part of the “team”, rather than an independent witness whose primary responsibility is to the court. f) Counsel must be alert to situations where the expert formed an opinion too early, and is subsequently constrained by tunnel vision and confirmation bias. Often, as a matter of pride, experts are reluctant to change their earlier opinions when further material or information emerges. g) Counsel should look for an overly close relationship with the investigators or parties to the litigation. Obviously, a familial relationship between a party, counsel or investigator would be a disqualifier. h) A key source of information to develop themes in cross-examination is communications between experts and police service members and Crown counsel.

Defence lawyers should seek disclosure of text messages and emails between experts and other parties to determine whether there is material that may be utilized during the voir dire. i) Experts may also express a position in discussions with the side retaining them, or among police personnel, that reveal their “commitment” to ensuring a successful prosecution of the case. j) Sometimes counsel will see experts going beyond the scope of the requested opinion itself and providing information to rebut the theories of the case being advanced by the other side or the opponent’s experts without being requested to do so. k) Counsel should also be alert to situations where either implicitly or explicitly experts articulate a “vested interest” in the case. This too is antithetical to the role of an expert witness. l) Experts may also fail to describe whether a report is preliminary or qualified. m) Bias may be detected where the expert has ignored exculpatory or contradictory evidence relevant to the consideration of underlying facts and opinions. n) Experts will occasionally consider evidence provided by witnesses to an event.

Counsel should be alert to the practice of experts omitting exculpatory information from their reports. Selectivity in the use of witness statements may confirm bias.

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o) Witnesses who pass themselves off as experts in areas purported to be related to a “novel” science in the absence of peer review or support within the scientific community ought to be viewed with skepticism. p) Experts who become nothing more than “advocates” for their position or the side retaining them are particularly problematic. This is often a hallmark of an expert whose evidence will be excluded. q) Beware of experts who, notwithstanding an effort by counsel to delineate the scope of their expertise, repeatedly wander beyond that scope. Counsel should not hesitate to remind the witness and the court that the expert is stepping outside the permitted scope. An expert’s failure to constrain himself or herself may indicate an unwillingness or inability to testify in an impartial manner. r) Beyond the opportunities that arise at the expert qualifications stage, the presence of bias, partiality and lack of independence may emerge even more clearly during the expert’s testimony at trial. One area counsel may wisely exploit is when an expert becomes intransigent in the face of information or evidence that clearly contradicts a pillar of his or her opinion. An expert who adamantly and stubbornly refuses to concede a clear error signals impartiality. s) Experts who fail or refuse to carry out additional sampling or testing in order to support or challenge their views may also be exposed as biased and partial.” 99 Nor should counsel forget to raise issues such as police/expert tunnel vision and confirmation bias which have played a key role in numerous wrongful conviction cases.

There may be other grounds for cross-examining expert witnesses; these will be used to attack the credentials and qualifications of the expert to provide the opinion sought.100 Clearly, defence counsel is not ethically barred from making such challenges.

4. Attacking Searches and Interceptions Other tools available for exclusion will include the typical attack on the admissibility of evidence obtained by means of a search warrant as well as exclusion of evidence of interception of private communications. Other ancillary tools such as “sneak and peak” general warrants as well as 99

The Honourable Justice Roger E. Salhany, Michael D. Edelson and W. Vincent Clifford, Cross-Examination: The Art of the Advocate, 4th edition (Toronto: LexisNexis, 2016) at pp. 179-181. [Cross-Examination: The Art of the Advocate] 100 Ibid at p. 193.

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production orders are also subject to Charter attack.101 Counsel may challenge the obtaining of the warrant itself, the nature of execution and the mandated compliance in reporting the items seized to a justice. In all of these instances, the purported “guilty” client may benefit from the exclusion of the only inculpatory evidence against him based on legal and constitutional breaches.

There is no ethical impediment to advancing such arguments.

5. Attacking the Failures to Comply with Statutory Requirements for Admissibility Counsel may also achieve significant success in excluding evidence crucial to proving guilt by reason of the Crown’s failure to comply with mandatory statutory requirements concerning the admissibility of certain types of evidence. Counsel must be diligent in reviewing the specific sections of the Canada Evidence Act to determine if the Crown has complied with the substantive and notice requirements concerning threshold admissibility.102 For example, the notice provision concerning the admissibility of a record or affidavit (relating to business records) provides: “Notice of intention to produce record or affidavit (7) Unless the court orders otherwise, no record or affidavit shall be admitted in evidence under this section unless the party producing the record or affidavit has, at least seven days before its production, given notice of his intention to produce it to each other party to the legal proceeding and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by that party.”103 This section bars admission of the evidence if there is a failure to comply with the mandatory notice and production requirements, albeit the notice may be inferred and need not be formally in writing.104 Counsel who are diligent in serving the “Notice of Inspection” after receiving the “Notice of Intention,” will often see the Crown exceed the 5-day period for production for inspection to the defence. They may lose the ability to elicit the record at trial altogether.

Another area which is very useful to the defence is section 30(10), of the Canada Evidence Act. I have had numerous experiences where the Crown has not subpoenaed the officer who has prepared

101

Canadian Charter of Rights and Freedoms at s. 8 and 24(2).

Sections that are also often relevant include ss. 24, 26, 28, 29, 30 and 31.1(1) to 31.8 (concerning the authenticity of electronic documents).

103 Canada Evidence Act, at s. 30(7) [emphasis added] 104 See R. v. Penno, (1977) 35 CCC (2d) 266 (BCCA); R. v. Voykin, (1986) 29 CCC (3d) 280 (Alb. C.A.) 102

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the accident report and yet seeks to admit the document along with the officer’s notes and Investigation Action Report pursuant to section 30(7), of the Canada Evidence Act. This is forbidden under the Canada Evidence Act: “Evidence inadmissible under this section (10) Nothing in this section renders admissible in evidence in any legal proceeding (a) such part of any record as is proved to be (i) a record made in the course of an investigation or inquiry”105 Thus, in a case involving dangerous driving, the officer’s documentation was excluded from the trial. This was important to the Crown case concerning not only the location of the collision but also issues such as skid marks and lane alignment. Where officers reports made in the course of an investigation into allegations of sexual assault were deemed inadmissible under this section. 106 It is noteworthy that this section applies to a record made in the course of any investigation or inquiry, not only those of a police officer. This would apply equally to coroners, toxicologists and pathologists.

Finally, notice of expert testimony must also fall within mandated time limitations pursuant to section 657.3, of the Criminal Code. Failure to comply with notice and details of the proposed expert testimony will not per se result in a refusal by the court to allow the witness to testify.

However, this may generate a delay which, when considered along with other delay and factors such as long pre-trial custody, generates a section 11(b) application for stay, or a Charter application pursuant to section 7 if the defence considers there to be a viable argument for a violation of the right to make full answer and defence.107 6. Motive Although motive is rarely an essential element of the offence charged, it is a powerful tool to use in cross-examination to undermine the credibility and sometimes the reliability of witness testimony. One of the key areas for consideration is in the context of the domestic assault or domestic sexual assault allegations. Invariably, these end up in family law affidavits and the report prepared by the Office of the Children’s Lawyer where one parent is seeking to gain advantage in the custody portion of the proceedings. If counsel can illustrate to the court that there is a motive to lie or dissemble this may be very effective in attacking the credibility and reliability of the testimony in this context. I have included a brief cross-examination prepared to demonstrate this 105

Canada Evidence Act, at s. 30(10)(a)(i) See R. v. Palma, (2000) 149 CCC (3d) 169 107 R. v. Horan, (2008) 237 CCC (3d) 514 (Ont. C.A.) 106

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technique and its value, taken from our course at the Law School, University of Ottawa, Advanced Criminal Trial Advocacy.

53

54

55

56

108

Evidence of this quality, if necessary to the Crown’s case, falls well short of the standard of proof beyond a reasonable doubt.

7. Police Procedures/Policies The police engage in a vast number of evidence gathering exercises. Notwithstanding that the client may have admitted participation in the offence charged, there is no ethical impediment to attacking the procedure used in an identification lineup. Defects in the protocol created by the police service or in the application or adherence to the protocol are legitimate strategies for undermining the reliability of the evidence. This applies equally to the collection of physical evidence, DNA samples and fingerprint evidence.

108

This was prepared for the University of Ottawa Law School course: Advanced Criminal Trial Advocacy.

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Challenges may include cross-examination as to: a) The protocol itself used by the police service and whether it complies with best practices as outlined by legal writers and case law. b) The manipulation of the photo array is something counsel must be alert to.

(Recently, I was defending an aggravated assault case where identification was crucial. In order to illustrate the impropriety in choosing the photo array I was able to lay out all 12 photos used in the array. In so doing, it quickly became clear that the background lighting in the client’s photo was very bright whereas the others were gray and dull. This amounted to a lineup, even when the photos were shown sequentially, that gave the appearance there was a flashing light pointing towards the client. I call this a “sore thumb lineup.”). c) There was also a valuable point to be made cross-examining on the breach of mandatory police policies for particular service involved. This would potentially lead to arguments relating to credibility and reliability (e.g. failure to make proper police notes or Investigative Reports, including not “locking down” electronic documents relating to lineup procedures). d) Another concern to be addressed more generally is information leaked from the investigator to the officer conducting the lineup as to the identity of the suspect.

Be creative: you may successfully pursue various procedural and policy breaches in the cases you take to trial. Guilt of the client plays no real role in the consideration of using these opportunities for an effective cross-examination.

8. Effective Use of Criminal Procedure (e.g. severance) R. v. Sher, 2014 ONSC 4790 (CanLII), represents the only acquittal, to date, in terrorism prosecution after a full trial in Canada. The client was originally charged jointly with two coaccused named Ahmed and Alizadeh. The principal evidence against the client was an eightyeight-minute long room probe recording during which the client made numerous troubling statements. As a result, a charge of conspiracy to facilitate terrorist activity was laid.

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However, of greater concern was the volume and content of the inculpatory and inflammatory evidence concerning the co-accused, who we viewed as committed terrorist co-conspirators who were attempting to recruit our client, who had been a friend of Ahmed at school in Montreal.

Various statements made by the client seemed to point towards his guilt.

When I proposed that we would likely bring a severance application at a Judicial Pre-Trial, the Crowns and the judge looked somewhat incredulous. Nonetheless, we persevered, as we knew should he go to trial before a jury he would have a significantly reduced chance of success (Ultimately Ahmed elected trial by jury and was convicted of terrorism related offences and sentenced to 12 years. Alizadeh pleaded guilty and was sentenced to 24 years.).

Our successful severance application is reported at 2012 ONSC 1792 (CanLII).

The trial was to proceed, from our perspective, based upon a comprehensive 25-page Agreed Statement of Facts (ASF). This was also a strategic approach intended to minimize the trial judge’s exposure to vivid Jihadi videos, massive wiretaps concerning the co-accused, and multiple replays of the room probe. The Crown proceeded to do most of this anyway. We called our client to testify, specifically to humanize him in the eyes of the trial judge and define him as the type of person who would not engage in such conduct.

Our core defence was that, during the probe discussion, he never actually joined the pre-existing conspiracy. We relied heavily on R. v. J.F., 2013 SCC 12. Although the trial judge, Hackland J., found the client not to be credible on various subjects, on this key issue he was left in a reasonable doubt based on our arguments concerning his core values as a person and physician. The trial judge was also left in doubt with respect to the consummation of any agreement arising from the probe. Moreover, there was a complete absence of contact or communication with Ahmed and Alizadeh for the subsequent 6 weeks prior to our client’s arrest. This case rode on the razor’s edge to the very end. Nonetheless, our strategy won out in the end: we divided and conquered, and pursued every argument we could credibly pursue. Despite our client making inflammatory and damaging utterances during the probe, we stressed the importance of reasonable doubt, and an acquittal ultimately followed.

9. Affirmative Defences After a thorough review of Crown disclosure on a file you may conclude that, absent some affirmative legal defence, your client is doomed to conviction on the charges as laid. Examples of such legal defences include:

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a) Defence of Person provisions of the Criminal Code, i.e. self defence. Notably the new provisions begin with: “34 (1) A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances.�109 b) Section 8 of the Criminal Code provides for the continuity of common law defences, along with section 9. Two defences which are highlighted are necessity and entrapment: R. v. Perka, [1984] SCR 232, and R. v. Mack, [1988] 2 SCR 903, respectively. Duress as a common law defence is also preserved, even if the person is a party to robbery or murder.110 c) Section 17 – the statutory defence of duress provides for a lawful excuse subject to certain exceptions. d) Section 232 sets out the prerequisites for a successful defence on a murder charge wherein it may be reduced to manslaughter based on provocation. e) Section 16 provides for the NCR defence which, if successful, may avoid a criminal conviction altogether.

These defences will be used by counsel invariably where there is sufficient evidence which, in the absence of a successful affirmative defence, would result in a guilty verdict. There is, again, no ethical impediment per se to relying on such defences.

10. Tactical Approaches Restricting Crown Questioning I will cite several very common examples where defence counsel can significantly restrict the Crown in its efforts to question your client or other witnesses.

109 110

Criminal Code, R.S.C., 1985, c. C-46, s. 34(1) [emphasis added] See R. v. Paquette, [1977] 2 S.C.R. 189 (S.C.C.).

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a) The defence must always be on the alert for questions which are legally impermissible or cross the line delineating proper from improper crossexamination. b) One area where many Crowns have encountered legal/ethical issues has been in sexual assault trials where they endeavour, either directly or indirectly, to question the defendant with some variation of the core, prohibited question: “What possible motive would Miss X have to lie?”

Except in very exceptional circumstances, appellate courts have repeatedly addressed the impropriety of such questioning which has often resulted in an order overturning a conviction and a new trial.111 Timely objections by counsel must be used to curtail any such questions. If it is a jury trial, counsel should seek to have the trial judge to provide a timely direction to the jury about the serious impropriety of such questions. c) A Crown evidentiary favourite is the leading of “narrative” evidence. This can often be extremely damaging and prejudicial to the accused. Such evidence may include prior bad acts and even criminal activity and offences for which there has been no conviction. This evidence is frequently immaterial and otherwise inadmissible.

“Care must be taken with the narrative doctrine; prejudicial information should gain this kind of “back door” entry only where significant testimony cannot be recounted meaningfully and fairly without its disclosure. Even then, the testimony should be edited pursuant to the judge’s exclusionary discretion to the extent it can be, to minimize any damage that may be done.”112 d) I have rarely witnessed any Crown counsel conduct a successful re-examination.

This is an area of the trial that provides fertile ground for defence strategy. By effectively objecting counsel may be able to restrict the ambit and impact of Crown re-examination (and cross-examination) with respect to critical witnesses in the trial. There are strict rules for re-examination, counsel must hold the Crown’s feet to the fire.

111 112

R. v. Ellard (2003), 172 C.C.C. (3d) 28 (B.C.C.A.); R. v. Rose, [2001] O.J. No. 1150 (Ont. C.A.).

David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law Inc., 2015) at p. 46.

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Conclusion: Navigating the turbulent waters of ethical defence of clients known to be guilty can be fraught with danger, not merely for the client but counsel as well who must successfully overcome one wave after another of legal, ethical, constitutional and practical considerations to reach shore safely.

A final word, when lost or in doubt as to the direction to take, seek help, many senior counsel will be willing and happy to assist, or seek advice from the Law Society of Upper Canada if time permits.

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DEFENDING THE GUILTY CLIENT AT TRIAL 2016 CLA Spring Conference – June 4, 2016 Michael D. Edelson C.S. BIBLIOGRAPHY PART I: 1.

Edelson, Michael D. “Why defence lawyers are never hired by the guilty.” Ottawa Citizen 24 Mar. 2012: Print https://issuu.com/ecdfllp/docs/edelson_-_why_defence_lawyers_are_n/1

2.

David Layton & Michel Proulx, Ethics and Canadian Criminal Law, 2nd ed. (Toronto: Irwin Law Inc., 2015)

3.

R. v. Courvoisier (1840), 9 C & P 362, 173 ER 869

4.

R. v. St-Onge Lamoureux, 2012 SCC 57

5.

Michael Asimow and Richard Weisberg, “When the Lawyer Knows the Client is Guilty: Client Confessions in Legal Ethics, Popular Culture, and Literature” Southern California Interdisciplinary Law Journal, Vol. 18, p. 229, 2009; UCLA School of Law. Research Paper No. 08-35; NYLS Clinical Research Institute Paper No. 09/10 #23 https://issuu.com/ecdfllp/docs/asimow___weisberg_-_when_the_lawyer

6.

R. v. Swain, [1991] 1 S.C.R. 933

7.

R. v. Mian, 2014 SCC 54

8.

Smith v. Jones, (1999), 132 CCC (3d) 225

9.

R. v. Okafor, 2009 ONCA 672

10.

R. v. Al-Enzi, 2014 ONCA 569, leave to appeal to SCC refused, [2014] SCCA No. 405)

11.

R. v. McCallen (1999), 131 CCC (3d) 518

12.

R. v. Joanisse (1995), 102 CCC (3d) 35 (Ont. C.A.), leave to appeal to SCC refused (1996), 111 CCC (3d) vi (SCC)

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13.

R. v. Vachon, 2011 QCCA 2103

14.

R. v. GDB, 2000 SCC 22

15.

R. v. McClure, 2001 SCC 14

16.

R. v. Felderhof (2003), 180 CCC (3d) 498

17.

R. v. Starr, 2000 SCC 40

18.

R. v. JHS, 2008 SCC 30

19.

R. v. Griffin, 2009 SCC 28

20.

R. v. Bjelland, [2009] S.C.J. No. 38

21.

R. v. N.S., (2012) S.C.C. 72

22.

Law Society of B.C. v. Mangot, 2001 SCC 67

23.

Lavallee, Rackel and Heintz v. Canada (AG), 2002 SCC 61

24.

Federation of Law Societies of Canada v. Canada (AG), 2013 BCCA147, leave to appeal to S.C.C. granted (2013) S.C.C.A. no. 235.

25.

R. v. White, [1999] 2 S.C.R. 417

26.

R. v. Brown, 2002 SCC 32

27.

R. v. Singh, 2007 SCC 48

28.

R. v. Nedelcu, 2012 SCC 59

29.

R. v. Harrer, [1995] 3 S.C.R. 562

30.

R. v. Grant, 2009 SCC 32

31.

R. v. Harrison, 2009 SCC 34

32.

R. v. Morelli, 2010 SCC 8

33.

R. v. Cote, 2011 SCC 46

34.

R. v. Murray, [2000] O.J. No. 2182

64

35.

Monroe H. Freedman, “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions,” 64 Mich. L. Rev. 1469 (1966) https://issuu.com/ecdfllp/docs/freedman_-_professional_responsibil

36.

Rondel v. Worsely, [1967] 3 WLR 1666

37.

R. v. Samra, [1998] O.J. No. 3755

38.

R. v. Dunbar, 2003 BCCA 667

39.

R. v. Lyttle, 2004 SCC 5

40.

R. v. Youvarajah, 2013 SCC 41

41.

R. v. Sweezy, [1987] N.J. No. 295

42.

R. v. Doiron, 2007 NBCA 41, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 413.

43.

R. v. Bowles and Danylak, [1985] A.J. No. 1056

PART II: 44.

R. v. Stinchcombe, [1991] 3 S.C.R. 326 (SCC)

45.

R. v. W.(D.), [1991] 1 S.C.R. 742

46.

R. v. Morrissey, [1995] O.J. No. 639

47.

R. v. Stellato, [1994] S.C.J. No. 51

48.

R. v. Graat, [1982] 2 S.C.J. No. 102

49.

R. v. Nikolovski, [1996] S.C.J. No. 122

50.

R. v. Anandmalik (1984), 6 O.A.C. 143

51.

R. v. Wallick (1990), 69 Man. R. (2d) 310

52.

Gavin Mackenzie, Lawyers & Ethics: Professional Responsibility and Discipline, 5th ed. (Toronto: Carswell, 2009)

53.

Browne v. Dunn, (1893) 6 R. 67, H.L.

65

54.

R. v. Li, [1993] B.C.J. No. 2312 (B.C.C.A), leave to appeal to S.C.C. refused, [1994] SCCA No. 209.

PART III: 55.

David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law Inc., 2015)

56.

R. v. Buhay, [2003] 1 S.C.R. 631

57.

R. v. Handy, 2002 SCC 56

58.

R. v. Mohan, [1994] 2 S.C.R. 9

59.

R. v. Botfield, [1972] B.C.J. No. 492 (B.C. Supreme Ct.)

60.

R. v. Koszulap, [1974] O.J. No. 726 (Ont. C.A.)

61.

R. v. Oickle, 2000 SCC 38

62.

R. v. Bloomfield, [1973] N.B.J. No. 43 (N.B. Supreme Ct.)

63.

R. v. Belanger, [1978] O.J. No. 513 (Ont. Supreme Ct.; High Ct. of J.)

64.

R. v. Smith, [1981] Q.J. No. 376 (Que. Sup. Ct.)

65.

R. v. Moore-McFarlane, [2001] O.J. No. 4646 (Ont. C.A.)

66.

R. v. Ahmed, [2002] O.J. No. 4597 (Ont. C.A.)

67.

Professor Tim Moore, “Interrogations and Confessions: Where Have We Been and Where Are We Headed?” For the Defence vol. 33 no.1

68.

R. v. Trochym, [2007] 43 C.R. (6th) 217 (SCC)

69.

R. v. Armishaw, [2011] O.J. No. 4662

70.

R. v. Sinclair, 2010 SCC 35

71.

R. v. Hart, 2014 SCC 52

72.

R. v. Dimitrov, [2003] O.J. No. 5243

73.

R. v. Abbey, 2009 ONCA 624

66

74.

R. v. J.-L. J., [2000] 2 SCR 600

75.

R. v. Abbey, [1982] 2 S.C.R. 24 (S.C.C.)

76.

R. v. Docherty, [2010] O.J. No. 3460 (Ont. S.C.J.)

77.

Horodynsky Farms Inc. v. Zeneca Corp., [2006] O.J. No. 3012 (Ont. C.A.)

78.

R. v. Klassen, 2003 MBQB 253

79.

Alfano (Trustee of) v. Piersanti, [2009] O.J. No. 1224 (S.C.J.)

80.

R. v. Zack (1999), [1999] O.J No. 5747 (Ont Ct J)

81.

R. v. Karunakaran, [2008] O.J. No. 3468

82.

R. v. Lozanovski, [2005] O.J. No. 1322 (Ont Ct J)

83.

R. v. Lindo (1996), [1996] O.J. No. 5604

84.

R. v. Tang, 2011 ONCJ 525

85.

R. v. Parker, 2011 ABPC 49

86.

R. v. Tait, 2012 ONCJ 62

87.

R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433

88.

R. v. Nette, 2001 SCC 78

89.

R. v. Natsis, 2014 ONCJ 532

90.

White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 SCR 182

91.

The Honourable Justice Roger E. Salhany, Michael D. Edelson and W. Vincent Clifford, Cross-Examination: The Art of the Advocate, 4th edition (Toronto: LexisNexis, 2016)

92.

R. v. Penno, (1977) 35 CCC (2d) 266 (BCCA)

93.

R. v. Voykin, (1986) 29 CCC (3d) 280 (Alb. C.A.)

94.

R. v. Palma, (2000) 149 CCC (3d) 169

95.

R. v. J.F., 2013 SCC 12

67

96.

R. v. Perka, [1984] SCR 232

97.

R. v. Mack, [1988] 2 SCR 903

98.

R. v. Horan, (2008) 237 CCC (3d) 514 (Ont. C.A.)

99.

R. v. Paquette, [1977] 2 SCR 189

100.

R. v. Ellard (2003), 172 C.C.C. (3d) 28 (B.C.C.A.)

101.

R. v. Rose, [2001] O.J. No. 1150 (Ont. C.A.).

68