 Thanks for being here on Monroe Day Eve. Glad you could all make it. It's a pleasure on behalf of the Student School of Law to be able to say welcome. Most of you know who I am. If you spend any time in the building, my name is Camille Cameron, and indeed for those of you who are visitors, welcome to our building and to the law school. We've got a very interesting topic for today. I'm not going to introduce our speaker but I'm going to turn things over to Professor Devlin to do those honors, and also to Daryl Pink, Professor Daryl Pink, who many of you know, to tell us a little bit about Ted Wickwire, the Wickwire Lecture, which of course is who we're honoring here today as the lecture is named before. Which one would you like to talk about? We have our strips really well. I'd please to tell you a little bit about the late Ted Wickwire For the students in the room, the name Wickwire will mean most to you because of the Wickwire field. And it is the one and the same person. Ted Wickwire, when he was a student at this university in the 60s, was a true giant. Not only was he an accomplished athlete and accomplished academic, he graduated upon this law school. And he went on to have a prestigious legal career, and as part of that career, he made a strong commitment and devotion to building the notion that lawyers should actually have a code of conduct that they should be governed by. As hard as it is for us to believe today, in the 1990s, we didn't have, in the 1980s, we didn't have a code of conduct. And Ted, as a leader in the Barrister Society, chaired the committee that resulted in the first written code of conduct in no discussion. And he became president of the Barrister Society in 1991 and then tragically died that year while at office. And the legacy that the society wanted to establish in his name was this lecture series, and this is the 29th. And over those years, we have not only had the giants of legal ethics, people like Monroe Friedman, Charles Wolfram, Rebecca Sandofor give these lectures. Rebecca was just last year named a McCarthy Fellow in the United States, which is equivalent to receiving the Nobel. We've had the giants in Canadian legal academic and ethics speak here as well. Harry Arthur's gave a compelling lecture a number of years ago. Adam Dodek, Alice Woley, now of the Alberta courts. So this lecture series, when you look through the 29 previous topics, really indicate the depth and breadth of thinking now in Canada about legal ethics, and that was one of the purposes for this lecture series. Our guest today, Richard will introduce shortly, has previously participated in this series with a colleague, the late Justice Michelle Prueb, the Courts of Quebec, regarding a book they wrote on legal ethics in criminal law. So we're really pleased to continue this lecture series because of its continuing contribution to legal ethics in criminal law. In my remarks quite brief, I'm going to introduce David. David graduated in 1987, which is the same year as I started teaching here, so he actually never had the horror of experiencing me as a teacher. David and I were once invited by the judges to have a debate with each other. It's meant to be one of those knock-and-dime dragomites. It turned out that David's arguments were so fantastic, I agreed with him. My arguments were so fantastic, he agreed with me. The judges were very smudgy because it wasn't the Vietnam. So we ended up writing, co-opting an article together where we came to the same conclusion, so that sort of didn't work as a plan. So mythology has it that in 1987, when David graduated, two students shared all the prizes that year. It's 50-50, well, not quite 50-50. David won one more prize than our former colleague, Renalda Murphy, and so he's the winner of that prize. He went on the clerk with the Chief Justice, Brian Dixon, screenwriter in Canada, spent 20 years as a defense lawyer and sort of has seen the world from that side. But then the last of five, seven years has went to the other side and has become a prosecutor, specializing in the field. So David knows both sides of defense. He understands the complexity of the world of being a criminal lawyer. So he thought he'd be perfect to come today and share some thoughts on the criminal lawyer, Harjan, our junkyard dog. And we also have a couple of leading criminal lawyers from the middle of Scotland. Perhaps in the course of today's questions, they may want to self-identify with any of these categories or not. They're making some other possibilities. I'm going to say my name is David. It's great to have you here. Thank you so much. Thanks very much, Richard. It's a real honor to be speaking at the Schulich School of Law today, not just because I went to school here, but also because I think the topic of legal professional responsibility has taken on a real importance and a real profile from a public point of view in Canada, more so than ever before. And a big part of the sea change there has been the work that legal academics have done. There were very few academics who worked on legal ethics when I went to law school here in the 80s. One of them taught here, Brent Carter, but very few. Today there are many. And Daryl mentioned some of them and two of the leaders in the field are here teaching at Dow, Richard and Professor Elaine Craig. And I've had the privilege of working with them and discussing issues with them over the last decade. And I know you're very lucky to have leaders like that at the law school. So I'm happy to be here sharing my thoughts at a public lecture about the role of criminal defense counsel, even if it means I've left the crocuses and the snowdrops of Vancouver for a polar vortex. I want to start then with a short story about a judicial appointment. About a year ago, the then Minister of Justice, Jody Wilson-Raybould, appointed a Toronto lawyer named John Norris to the Federal Court of Canada. And John Norris was a highly accomplished advocate who'd been defense counsel for 25 years. And one of his clients had been Omar Carter, who I'm sure you've all heard about. He was a child soldier who was held in Guantanamo Bay, pleaded guilty to the murder of a U.S. soldier in contravention of the laws of war, and came back to Canada where he's trying to overturn his conviction and is on bail. Now, when John Norris was appointed, there was a certain amount of controversy in some quarters, simply because he had represented Omar Carter. And the complaint that had the most attention I think came from a conservative MP named Shannon Stubbs, and she tweeted that appointing a lawyer to the bench who had defended a confessed murder and terrorist is an utter embarrassment for Canada and the judicial system. So that's a fairly typical example of a lawyer being criticized simply because they defended someone who was accused of a crime. And the charge that's leveled is that defense lawyers are doing ill, they're harming society because they're helping criminals. And it's grounded in the notion that defense counsel lack an acceptable moral compass. They'll act for anyone charged with anything. And then once they're paid, they'll do whatever it takes to get the client off. It doesn't matter what harms cause to the victim or to society at large. And this is the critique of criminal defense counsel as a hired gun, someone who will take on any cause no matter how despicable or a junkyard dot. The ruthless attacker doesn't know any limits. It does whatever it takes to get an acquittal. This afternoon I want to explain why this conception of criminal defense lawyer is flat out wrong. And my argument has two main points. First, that criminal defense lawyers far from causing harm to society perform a vital, beneficial role precisely because they act for people who've been accused of crimes and represent their interest as resolute advocates. The second part of my argument takes issue with the notion that defense counsel's duty to defend the client is all encompassing and subject to no competing obligations. My pitch here is that defense lawyers have many competing duties that can significantly restrict what they can do on a client's behalf. What's more, defense counsel have to be personally, continually engaged in determining how these competing obligations play out in the circumstances. The right answer may not always be clear. There may be discretion in terms of what counsel can do. And the right answer, the right approach may differ from jurisdiction to jurisdiction. It may change over time. So in short, defense lawyers do good by taking on a partisan role in defending accused persons. But they don't act as higher guns or junkyard dogs for their clients. They have other masters as well, which makes the project of ethical defense lawyer a much more complex, much more nuanced. Let me start then with the first prong of my argument, which is talking about defense counsel's special role in the justice system. Of course, that system's adversarial. It means that litigants are responsible for presenting their own case by bringing forward evidence, cross-examining the other side's witnesses, making arguments, et cetera. And partisanship is integral to the process. The decision on the disputed issues is made not by the parties, but by a neutral arbiter in criminal contexts. It's by a judge or a jury. Yet the system is tremendously complex. It's replete with lots of complicated rules about substance and procedure. And that complexity doesn't cause any trouble for the state because the state employs comparatively well-financed professionals to investigate and to prosecute criminal matters, the police and the crown. But the same can't be said for someone who's charged with a criminal offense. If self-represented an accused person is always at a distinct disadvantage. And the disadvantage is especially acute for the many accused who face poverty, mental health and substance abuse issues, lack of education, legacy of past and ongoing discrimination, and other significant challenges. And of course the stakes are high if convicted. The accused faces a significant stigma of being branded a criminal, the possible or even certain loss of liberty and many other potentially adverse knock-on effects such as a loss of employment, damage of personal relationships, forfeiture of property, lack of inability to travel internationally and so on. It follows that the accused needs the help of a lawyer to present the defense. And because that defense is presented within an adversarial process, the lawyer must loyally and fearlessly advocate for the accused's interest. Criminal defense counsel's role is therefore necessarily unabashedly partisan. In taking on this role, defense counsel helps to ensure that both accused persons and the public can have confidence that the system is reaching accurate outcomes through a fair process. Defense counsel also promotes the autonomy and dignity of accused persons by facilitating their control of the case and acting as their storytellers against the competing state narrative of criminality. So on this view, defense counsel does good simply by fighting for their client. The virtue of the client's cause isn't of much moment because it's the responsibility of others in the system to compete the alternative, the alternate narrative of events and to make the ultimate decision. This justification for defense counsel's partisan role is inextricably entwined with the constitutional rights that every accused person has in the criminal justice system. To begin with, the adversarial system and the accused's right to control the defense is itself a fundamental principle of justice. The accused has other constitutional rights that are largely based on the view that counsel has to be acting as a resolute advocate, the right to counsel at trial, the right to choice of counsel, the right to counsel who doesn't have a conflict, the right to the ineffective assistance of counsel, the right to the protection of solicitor-client privilege. Just as important in defining defense counsel's role are long-standing due process rights that shape the very meaning of justice in the criminal setting. Every accused person, of course, is presumed innocent, which means that the crown has the onus of proving guilt on the especially demanding standard of proof beyond a reasonable doubt. This constitutional guarantee goes hand in hand with the accused's right to make full answer to defense, which includes the right to test the reliability of the crown case by cross-examining the crown witnesses. There's also the privilege against self-incrimination, which precludes the state from forcing an accused to aid in building the prosecution case. And then finally, accused persons will sometimes have the right to exclude evidence that's been obtained by Charter Breach, for example, a confession that was obtained because of oppressive police techniques. These due process rights are animated by an unremitting desire to protect individuals from a powerful and sometimes overweening state. We want to limit the ability of the state to exercise power over us, and we fear that absence these rights, including the right to the assistance of loyal counsel, the state's representatives, and in particular the police, may misuse their power. This desire to overprotect accused persons in order to keep the state in check is unique to the criminal justice system. It means that truth finding isn't the only goal. It means that a pivotal aspect of defense counsel's job, as all the ethical codes expressly recognize, is to ensure that the state does not obtain a conviction absent proof beyond a reasonable doubt based on admissible and reliable evidence. And this duty applies regardless of what the client might have done. Even someone like Clifford Olson has a right to be defended by counsel. The recent case of Groyia and the Law Society of Upper Canada not only endorses this view of criminal defense counsel's partisan role, it expressly recognizes that fearless advocacy by defense lawyers is itself a constitutionally protected imperative. I want to paraphrase quite closely something the majority said in Groyia. This is from Mr. Justice Maldiver. Criminal defense lawyers are the final frontier between the accused and the power of the state. They're regularly called on to make submissions on behalf of their clients that are unpopular and at times uncomfortable. Doing so may be met with harsh criticism from the public, but defense counsel must stand resolute in the face of this adversity by continuing to advocate for the client despite popular opinion to the contrary. I believe that this view of criminal defense counsel's partisan role makes sense, that it's justifiable, but there's a danger in oversimplifying so as to glorify defense counsel as client's amoral instrument. An instrument whose single-minded duty is to push the client's cause forward no matter what. And this completely client-centered account of defense counsel role buys into the conception of lawyers as hired guns in junkyard dogs. In fact, some criminal lawyers proudly brand themselves that way in an effort to attract clients. But the purely client-focused conception of criminal defense counsel's mission is unconvincing, I say, for several reasons. Number one, it fails to acknowledge that professional ethics often require defense lawyers to promote values other than the client's best interests. Second, it portrays the lawyer as an automaton. It fails to describe the extent to which defense counsel is actively engaged on an ongoing basis in making ethical decisions. And third, this purely client-centered approach ignores the extent to which legal ethics can change over time and from jurisdiction to jurisdiction. I'm going to spend the rest of my talk looking at a number of examples of instances where values other than the client's best interests form a part of defense counsel's ethics. And to start, I want to make the point that although defense counsel has to act as partisan advocate for the accused, the case law, the ethical codes all recognize that counsel simultaneously owes what we often refer to as duties to the administration of justice. Many of these duties flow from the need to protect the integrity of the justice system. Conduct that undermines the truth-seeking goal of that system. Conduct that undermines the fairness of the system is unacceptable. And so is conduct that causes undue harm to other justice system participants. Indeed, there's a parallel between the need for defense counsel to balance her duty as an advocate with obligations to the administration of justice and the way in which Crown counsel's duty as minister of justice tempers her role as an advocate. Of course, the calibration of the balancing exercise isn't exactly the same because defense counsel has to give more weight to partisanship. But the idea of advocacy being tempered by countervailing duties to the integrity of the system not only applies to Crown counsel, it applies to defense lawyers as well. Perhaps the most often mentioned duty that lawyers owe to the administration of justice is the duty not to knowingly mislead the court. And this is an overriding duty. It always trumps defense counsel's duty to advance the client's defense. Let's not act the concept a bit because it's simple to state but not always so straightforward to apply. The duty not to mislead the court doesn't mean that defense counsel must come to her own determination as to where the truth lies in the same way that a judge or a jury would. That would be to undermine defense counsel's role as part of partisan advocate. And we see an example of counsel going wrong in a Quebec case called Delisle where a conviction was overturned on appeal after defense counsel refused to locate an alibi witness because counsel on his own assessment of the case had determined that the client wasn't telling the truth about being innocent. The court of appeal held that defense counsel had given ineffective assistance because he had acted more as judge than as a resolute advocate. So when does a lawyer truly know that evidence is false so as to trigger this rule of prohibiting misleading the court? In my view, the lawyer must reach an irresistible conclusion that the evidence is false based on a criminal standard of truth and this conclusion must be one that not even a resolute but honest partisan could deny. Now the irresistible conclusion test has been adopted or endorsed by the Supreme Court of Canada in a case called uveragia. It will certainly be met where the client makes a clear and convincing admission of guilt to the lawyer. But otherwise it will be difficult to satisfy because remember counsel is not assessing whether the evidence is false as if a judge hearing the case rather counsel is adopting a very different mindset, the mindset of the resolute but honest partisan. This standard can be challenging to apply. Reasonable lawyers may disagree as to whether it's met on a particular set of facts. Many defense lawyers may be exceedingly reluctant to accept that this standard is absent a reliable confession from the client. And even where the lawyer has received that sort of confession from the client there can be nuances as to how the duty to not mislead the court applies in a particular case. The ethical codes all provide that while defense counsel who receives an admission of guilt from a client can't set up an affirmative defense and consistent with this knowledge such as by calling an alibi. Counsel is nonetheless entitled to test the evidence given by each crown witness and to argue that the evidence taken as a whole is insufficient to prove guilt on the criminal standard. What are the limits of testing the evidence of a witness when counsel knows that the client's guilty? In a case in Canada clarified this point in a case called little holding that defense counsel cannot put a suggestion to a witness in cross examination that counsel knows is false. That would go beyond what's permitted in testing the evidence of a crown witness. But it doesn't completely tie the lawyer's hands in defending the client. And a great example of how this limitation is seen in a British Columbia case called Lee. And in Lee the accused had confessed to his lawyer to committing the charged robbery of a jewelry store. And the crown called the two store clerks to testify and they identified the accused as the culprit. And in line with the holding in little the British Columbia Court of Appeal held that given the lawyer's knowledge that he was guilty the lawyer couldn't put to the clerks in cross examination that they were actually wrong in identifying his client as the perpetrator. But the court ruled that counsel could properly test the strength of the crown case by bringing out truthful evidence that might help raise a reasonable doubt as to the reliability of the clerk's identification evidence. It was proper for defense counsel to have cross examined the clerks to elicit from them that they weren't sure of their identification and to highlight truthful elements of their testimony that might put into question its reliability such as the fact that they only had a brief look at the perpetrator. The court even said that it was okay for defense counsel to elicit truthful evidence and police witness about the attributes of the accused that were inconsistent with descriptions that the perpetrator had provided about rather the clerks had provided about the perpetrator such as hairstyle at the time and proficiency of English. So remember counsel wasn't eliciting any of this evidence at any evidence that counsel knew to be false and at the end of the case counsel wasn't saying that the client was innocent rather counsel was bringing out truthful evidence and using it only to suggest to the jury that the crown hadn't met its ownness of proving guilt on the stringent standard of proof beyond a reasonable doubt. But not all defense lawyers agree on how far a lawyer can go in challenging the crown case where the client has privately admitted guilt. For instance some defense lawyers may refuse to cross examine a witness that they know to be truthful by casting aspersions on that witness's character in order to suggest not that there exists a reasonable doubt as to whether the witness is mistaken like in the Lee case but rather to suggest that there exists a reasonable doubt as to whether the witness is lying. So the lawyer may be able to bring out truthful evidence that the witness has a possible motive to lie may be a criminal record for an offensive dishonesty perhaps is given a prior inconsistent statement. Relying on that sort of truthful evidence to suggest that there exists a reasonable doubt as to whether the witness is lying creates I would suggest a greater risk of harm to the witness's reputation than is the case where the lawyer relies on truthful evidence to argue that there is a reasonable doubt as to whether the witness is mistaken and in some instances like sexual assault cases cross examining to impeach the character of a witness the counsel knows to be truthful can cause harm to broader societal interests and in particular the need to encourage sexual assault complainants to come forward to report the victimization. Now there is nothing in the ethical codes that states that cross examination that attempts to raise a reasonable doubt by impeaching a witness's character who counsel knows to be truthful is improper. Nothing in the codes that especially says that that's wrong and some lawyers would undoubtedly be prepared to carry out that cross examination but others might refuse to do it because of the concerns that I've mentioned and in my view neither position is necessarily unethical although the lawyer who's not going to carry out that cross examination will have to tell the accused promptly. To move on to another example of a limitation on criminal defense counsel's partisanship and it's related to the restrictions that apply to handling disclosure materials these are materials that the police create in investigating an offense and then they're passed on to defense counsel who uses them to help make full answer to defense and it used to be that defense counsel didn't get much in the way of disclosure in many cases but in 1991 the Supreme Court of Canada recognized a broad right to disclosure in a case called Stinchcomb and in the years after Stinchcomb the amount of disclosure increased exponentially there was almost too much of it and technology for creating records improved criminal cases became more complex but it became clear that disclosure materials also engaged third party privacy interests so for example disclosure may have witness statements where witnesses are talking about highly personal matters they may be medical records financial records private communications that have been intercepted and so on the right of the accused to make full answer to defense is going to override those privacy interests so that the accused will get disclosure and if the information in the disclosure is admissible the accused can put it into evidence at trial but using the disclosure for a purpose other than making full answer to defense in the case to which it relates can create real harm and in the years following the Stinchcomb decision there was a great deal of uncertainty in terms of what was acceptable for criminal lawyers to do in this area and certainly some criminal lawyers were passing disclosure around pretty freely consider the example of a lawyer who gives disclosure to the client's family and then the family posts parts of the disclosure on social media and it causes acute embarrassment or distress for a witness that sort of use of disclosure may lead to a witness being threatened may lead to a witness suffering physical harm and the witness may also be less willing to cooperate with the police or the crown which causes harm to the administration of justice so these harms are harms that may actually in your to the benefit of the accused in a particular case but they undermine the proper functioning of the justice system as a result in 1993 the influential Martin report expressed the view that defense council has an ethical duty not to use disclosure or the information in it for any purpose other than to make full answer and defense in the particular case in which it was disclosed that Martin report took a long time for that position to work its way through the criminal bar but I think in most places in Canada now it's accepted as the proper approach and in some jurisdictions the crown includes this restriction as an express undertaking so that defense council has to agree to it before accepting the disclosure materials in other jurisdictions like British Columbia the courts have recognized an implied undertaking that works to the same effect there may be still other jurisdictions in Canada where neither an express or an implied undertaking is used but I would say in those jurisdictions there'll be a consensus in the criminal bar generally as to the restrictions on the use of disclosure council who misuse disclosure face serious repercussions there's a case in Ontario called Amber where parts of the disclosure given to defense council have been redacted by the crown defense council wanted to see what was behind those redactions legitimately believe that the information would be helpful to the defense but instead of bringing a court application to get that remedy he posted the disclosure on his website and asked if anyone had software that could remove the redactions he breached the express undertaking he had given to the crown he breached his clients right to confidentiality with respect to that disclosure and he was not surprisingly disciplined by the law society and sued civilly by his client and ended up settling out of court in fact for a time this council was not allowed to receive any disclosure to review it he had to go to the crown's office and read it over by himself in an office defense council can face and that's an obvious case of misuse but there are other cases where defense council's handling of disclosure what's proper what's not proper isn't so obvious and one area where this can be the case is providing copies of disclosure to the client because giving the client copies can help the client's understanding of the case it's an easy way to impart the information and it makes it easier for council to get instructions not giving the client copies can make all of those things difficult and it can also upset the client if the client wants copies and can cause friction in the relationship nonetheless in my view there will be instances where defense council has an ethical duty to take steps to limit clients access to disclosure now in most cases it's enough to give the client copies and say this information can only be used for the purposes of your defense but council may have reasonable legitimate suspicion that the client is going to misuse that disclosure if that suspicion can't be alleviated sufficiently then it may be justifiable for the lawyer to refuse to give copies to the client to instead look for other alternatives such as the client coming to council's office to review the materials nonetheless to council look at the same fact that the situation may come reasonably to different conclusions as to whether there's a legitimate concern or if there is a legitimate concern how it should be handled so there may be more than one acceptable response to an ethical issue and council may have some discretion in determining what that response should be another example of restriction on council that can run counter to the duty of resolute advocacy is the restriction against eliciting inadmissible evidence from a witness the reason why this is unethical is that the rules of evidence aimed to promote justice by ensuring that the information that goes in front of the fact finder is relevant and not unduly prejudicial and ignoring a rule of admissibility therefore risks subverting trial fairness it may lead to an inaccurate result so it's unethical to ask a witness a question that the lawyer knows will elicit inadmissible testimony even though that evidence might help the lawyer's client and it's no answer to say that well it's the responsibility of opposing council to raise the objection opposing council may be asleep at the wheel object or may object too late after the answer has been given simply asking the question may cause some harm in certain circumstances and in fact in recent years I've noticed more and more case law that holds that if a lawyer has a reasonable basis to conclude that there's going to be an objection to evidence the lawyer should alert opposing council to the intention to elicit that evidence in advance so that it can be dealt with in front of the trial judge and a ruling can be obtained rather than simply asking the question once again this is an instance where reasonable lawyers may disagree as to whether there exists a sufficient basis to believe that an objection may arise so as to sort of trigger a duty to give some forewarning to opposing council in my view regardless lawyers should be aware of the obligation on this point and I think prudent council will exercise caution and give their opponent notice frivolous applications in many criminal cases the defense will bring an application before the trial proper in order to try to exclude a crown evidence but bringing frivolous applications and I mean applications that have absolutely no chance of success that's harmful to the justice system it wastes valuable resources it causes delay acceptance of a prohibition against defense council bringing frivolous applications has gained significant traction in the last 10 years there's an influential report on large complex trials that was authored by former Ontario chief justice Patrick LaSage and then U of T Professor Michael Cote that recognized this ethical duty same ethical duty was recognized by Mr. Justice Maldever when he was on the Ontario Court of Peel in a rather controversial speech that he gave to the Ontario criminal lawyers association in the early 2000s and I would suggest that the duty not to bring a frivolous application has been implicitly recognized by the Supreme Court of Canada in the Cote case there are some comments there that seem to take this view for example reference to defense council having an obligation to use court time efficiently however launching a frivolous application we may say well why would anyone do that anyway there's no point to it sometimes it can actually help defense council's client because it may allow the defense to obtain some genuine collateral benefits and this is what happened in a murder case in Ontario called Elliott where defense council brought multiple frivolous applications that took up months and months of court time and ended up completely sidetracking the trial the Ontario Court of Peel recognized that bringing those applications may have gained the accused some real collateral benefits for example by creating leverage in an attempt to get a better plea deal from the crown but the Court of Appeal nonetheless held that bringing a frivolous application to obtain collateral benefits was deplorable and I agree with that conclusion I would say council shouldn't be misusing the legal process by bringing a hopeless application as a tool to essentially extort benefits to which the client's not entitled but I want to add two important caveats to the prohibition on frivolous applications the first one is that the prohibition doesn't prevent defense council from forcing the crown to prove every element of the offense charged at trial the accused has a constitutional right to plead not guilty of constitutional right to force the crown to prove its case on the criminal standard this is very different from a pretrial application where the defense bears the burden of proof second determining whether an application is frivolous isn't always easy substantial review of the facts and the law is necessary and different lawyers may reasonably come to different conclusions as to whether an application has sufficient merit to justify it being brought another area where defense council faces restrictions that can temper what council can do for the client concerns dealing with witnesses outside of the court there are many many restrictions that govern council in this regard I'm just going to mention a few of them first ethical codes provide that in contacting a witness the lawyer must disclose her own interest in the case and the codes also state that a lawyer can't deal with anyone in bad faith and can't encourage or assist in any dishonest conduct these provisions mean that when a lawyer approaches a witness say to try to get information on the client's behalf prior to trial that lawyer has to explain upfront the nature of the matter who the lawyer is acting for and what the lawyer's interest in the case is in my view these provisions also mean that neither defense council nor defense council's agent can pretend to be someone else to trick a witness into speaking with them for example by adopting another persona on social media it doesn't matter that doing this might be legal it doesn't matter that doing this is for a legitimate cause in the sense of assisting the client and making full answer in defense it may well be that some defense lawyers disagree with the view that I've just taken they may say that sting operations that are directed at crown witnesses are fair game and I suppose the argument would be an implicit exception to the ethical code rules that allow lawyers to engage in lawful subterfuge when it's aimed at a witness provided the lawyer reasonably believes that doing so may uncover a falsehood and in fact in some jurisdictions in the United States and Oregon the best known example there is an exception in the ethical codes that actually allows a lawyer to engage in lawful covert activity for this sort of purpose I'm going to move on to a very different topic and it deals with guilty pleas for clients who privately maintain to the lawyer that they're innocent now a lot of the vast majority of criminal cases are dealt with by guilty plea and often that's because the crown case is strong also partly because if an accused pleads guilty they usually get a lesser sentence because the guilty plea is seen as an expression of remorse it's mitigating for that reason and it also avoids the need to expend resources on a trial it's mitigating for that additional reason and sometimes a client will tell defense counsel that they want to plead guilty and then in the same breath they'll say that they're innocent and I would say this happens to every defense counsel quite often if the client is refusing to admit guilt in open court then it's clear counsel can't act on the guilty plea because a judge won't accept the guilty plea from a client who expressly claims innocence in the courtroom but what if the client agrees to admit guilt in court and only in private insists on maintaining innocence the question arises can defense counsel act on the guilty plea in these circumstances it's easy to think of scenario where it makes sense some sense for counsel to be able to act on this sort of guilty plea take the case of an offense that's quite minor a client who has a long criminal record has no chance of getting bail for that client a guilty plea will mean a reduced sentence waiting to get a trial date while staying in jail will almost certainly mean a longer sentence even if the client is acquitted now of course it's not a sentence in that case but it's still jail time and for a client who already has a long criminal record there's no real difference and an additional conviction by pleading guilty is no big deal so that's a scenario where there are some reasons I can think of why counsel might say yeah I'm prepared to act on the guilty plea in that circumstance on the other hand there are several known wrongful convictions in Canada that have occurred where defense lawyers have acted on guilty pleas for clients who privately maintain innocence so there's a concern that a lawyer acting in that sort of circumstance may be helping to create an injustice a different sort of objection is that acting on the guilty plea in these circumstances is to mislead the court because the judge will view the guilty plea as an expression of remorse and yet the lawyer knows that the client's not remorseful is in fact privately maintaining innocence what are the rules of professional conduct say about this well they don't provide a completely clear answer they talk about counsel only being able to make a plea agreement with the crown if the client is prepared to admit the necessary factual and mental elements of the offense chart but arguably this wording doesn't prevent counsel from acting on a guilty plea for a client who privately maintains innocence provided the client is prepared to admit the elements of the offense in open court counsel can do that and avoid misleading the court arguably by not making the submission that the guilty plea is an expression of remorse and as for the concern about wrongful convictions one could say well counsel can alleviate that problem by only acting on the guilty plea if they're satisfied there's a very strong case having said all that in Canada there are some trial level decisions that say that a lawyer shouldn't be acting on a guilty plea if the client is privately maintaining innocence and I would suggest that most criminal counsel in defense counseling Canada would take the same view in that circumstance this is an interesting area in that other jurisdictions take different views of this ethical dilemma so for example in England and Wales the law is that a lawyer can act on a guilty plea for a client who privately maintains innocence provided a number of preconditions are met for example the client has to be told that he shouldn't be guilty if he's innocent the client has to be told that the lawyer can't submit to the judge that the client is expressing remorse and so on in the United States there's a different approach that's taken counsel can act on what's known as an Alfred plea that's named after the leading case in the area and on an Alfred plea the client pleads guilty but then expressly maintains innocence in open court and the judge can enter a conviction provided the judge is satisfied that there's a strong factual basis to hold the accused or defendant guilty I don't know if any of you have heard of the West Memphis three involved some young man or boys in West Memphis who were convicted think in the 80s and there's a number of documentaries about them they were potentially exonerated a few years ago but the only way they could get out of jail was to plead guilty through the Alfred process and it was quite controversial at the time finally in Ontario there's been another approach that's been taken to this issue endorsed by the Ontario Court of Appeal and on this process the client who wants to plead guilty but is privately maintained in innocence pleads not guilty but then the defense allows the crown to prove its case by submitting a written statement to the court no evidence called other than this piece of paper and then the defense joins the crown in asking the trial judge to convict the accused based on that written statement but the sentencing hearing the defense doesn't say that the client's expressing remorse he's not he's pleaded not guilty but the client will get some discount on the sentence because taking this approach has avoided the need for a trial and this is similar to what's known in the United States as a no low contender no contest plea it's had some uptake in Ontario since the case where it was first endorsed I don't know that it's been used in the rest of Canada I know certainly in British Columbia when I talk to lawyers I get the feeling that they would not participate in this sort of process a final example of restrictions on defense counsel in acting for a client involves handling physical evidence of a crime one of the most notorious and challenging ethical issues arising in Canada in the last 25 years I would say and the clash of principles here is obvious the lawyer is to put the client's defense forward it may be necessary to take physical evidence of a crime look at it maybe keep it to use it at trial on the other hand if that's incriminating physical evidence that the police would want for their investigation it may deny the police in the crowd access to that evidence that could be seen to do an injustice and this is what happened in the infamous Ken Murray case in 1993 lawyer Ken Murray followed his client Paul Bernardo's instructions to remove videotapes from Bernardo's house following a 71 day police search the tapes have been hidden above potlite and they contained depictions of Bernardo and his wife Carla Hamolka grossly sexually assaulting criminals that Bernardo would soon be charged with murdering the tapes were hugely incriminating for Bernardo they would have substantially strengthened the crown's case and if the crown had of had them the crown would not have done a plea deal with Carla Hamolka instead they would have charged her with Paul Bernardo with first degree murder Ken Murray the lawyer hung on to those tapes for 17 months they only came to light when he tried to get off the record he was charged with obstructing justice for keeping the tapes and he only barely escaped conviction the reason being that the trial judge held that in the absence of a clear prohibition on Murray's conduct there was a reasonable doubt as to whether he intended to obstruct justice by keeping those tapes made clear that in the future any lawyer who kept possession of evidence that overwhelmingly implicated the client in a crime would be guilty of obstructing justice now at the time of the Murray case there was no ethical code rule dealing with this issue or at least not one that gave any guidance to counsel and the Murray case actually criticized the Ontario Law Society of Upper Canada for the lack of a rule so the Law Society of Upper Canada after the case had ended struck a committee to draft a rule and the majority of that committee supported a rule that would permit lawyers to handle physical evidence of a crime for their clients in certain restricted circumstances for example where keeping that evidence and using it at trial to prevent a miscarriage of justice the majority of the committee's proposed rule also would allow counsel to return the physical evidence back to its source in some circumstances if having looked at the evidence they determined that it wasn't going to help the defense but there were dissenting members on that committee and they favored a rule that was much narrower and more categorical the lawyer came into possession of physical evidence under their proposed rule in every circumstance the lawyer would have to turn the evidence over to the police or the crown although they would do it anonymously the Law Society of Upper Canada ultimately decided to do nothing no rule was adopted a similar attempt I believe was made in Nova Scotia shortly after and sort of came to the same end however the Federation of Law Societies of Canada in their model code which was adopted by many provinces starting in 2011 or so I did contain a modest rule addressing the handling of physical evidence of a crime and this rule was adopted by a number of law societies in Canada but not by some of the larger ones like BC in Ontario and Alberta then in 2014 the Federation drafted a new rule one that was more comprehensive one that offered more guidance and that rule has been adopted by most law societies including in this province the new rule starts out with a basic prohibition against lawyers concealing, destroying or altering incriminating physical evidence but the rule acknowledges that restriction doesn't apply to evidence that's wholly exculpatory crucially the rule says that a lawyer who comes into possession of incriminating physical evidence must consider his or her options and then some options three options are set out one of them is to turn the item over to the police anonymously second one is to turn the item over to the court and the third one is for the lawyer to tell the crown that they have possession of the item in most provinces a big question or a mark exists as to whether the lawyer can ever take possession and then return it to its source in British Columbia the rule has been added to a bit and it expressly includes that return to source as an option I've really just scratched the surface of this issue but I want to make a last point which is that when lawyers were first debating not first debating but when they were really into discussion of this issue in the Murray case happened and was first revealed in the early 1990s they were mostly talking about corporeal items like the smoking gun say or the bloody shirt or the videotape in the Murray case but with the proliferation of electronic media this issue comes up way more often than it ever did and what's more because electronic files can be copied there may be ways for lawyers to take possession of incriminating physical evidence without denying the police or the crown access to that same evidence assuming that let's say electronic copies can be made without altering the so called original and assuming that possession of that copy isn't illegal in itself to sum up this is an excellent example of an area of ethics where we've seen substantial change over the years in part because the Murray case gave the profession such a black eye that law societies really took an interest in trying to work on a solution but also I would say we've seen changes or efforts to deal with this issue in part because of changes in technology it remains an area where there is some uncertainty as to what lawyers should do and the lawyer who encounters physical evidence of a crime may therefore have some options in determining where the right balance lies between the obligation of the client and the obligation to the administration of justice I've talked then about a number of instances where duties to the administration of justice were strict where the lawyer can do in advocating for the client there are many other examples I could give but I want to mention the argument that sometimes may which is that yes these restrictions exist but defense lawyers must always adopt the most client friendly view of whether and to what extent the restrictions apply and the arguments made that adopting the most client friendly view of the restrictions is necessary because of the duty of loyalty to the client and it's also sometimes said and this is the race to the bottom argument that clients are only going to retain lawyers who will take the least restrictive view of any duty that might temper what the lawyer can do to help the client so unless lawyers adopt that position they're not going to get any business these arguments are rejected by the vast majority of criminal lawyers and rightly so for one thing there's no ethical principle that requires counsel to take the least restrictive view of their duties to the administration of justice and more over the lawyer who skates as close to the line as possible in terms of the divide between ethical and unethical behavior is playing a very dangerous game because the risk is great that at some point maybe at many points the lawyer is going to skate over the line with significant adverse consequences not only to the justice system but to the lawyer himself or herself a court may order that the lawyer pay costs of a criminal proceeding because of unethical conduct may cite the lawyer in contempt an aggrieved client may argue that the lawyer is given ineffective assistance of counsel on appeal or may sue the client civilly the law society may bring disciplined proceedings and most seriously the lawyer may be charged criminally but more even than any of these things the lawyer who habitually skates close to the line is going to gain a bad reputation within the legal community the criminal bar is small and close knit in most jurisdictions the lawyer who plays fast and loose with the rules is going to be less trusted by prosecutors less trusted by trial judges that's going to have a negative impact on the lawyer's practice and they will I would suggest always be a knock on negative effect on the lawyer's clients so let me conclude with a wrap up um criminal lawyers shouldn't be attacked simply because they act for people who may have done horrible things the adversarial system requires defense lawyers to act in their clients less interest we've seen though that defense lawyers are subject to a host of ethical duties that limit what they can do for their clients and they must constantly be engaged in assessing whether and to what extent those counter veiling obligations restrain what they can do as resolute advocates so then this will advise the proper response is not always the lawyer and defense lawyers may have a discretion regarding what action they can take ethical criminal defense lawyer is therefore I would say a personal enterprise and I mean personal in the sense that the lawyer must be guided by her own reasonable considered assessment of the proper balance to strike between local resolute advocates and obligations to protect integrity of the administration of justice when the ethical dilemma is a tough one the lawyer should always get advice from another trusted source whether it's an advisory line law society or senior respected counsel to make sure that the course of action taken is the best one and finally many of the examples I've talked about today involve areas where ethical obligations have changed over time where they differ somewhat from jurisdiction to jurisdiction and I would say that this illustrates that the extent towards the duty of resolute advocacy must give way to counsels obligations so it must give way to counsels obligations to the administration of justice and how it must be so isn't written in stone it's not today rather what constitutes ethical conduct is the product of a constellation of living, evolving forces like law society regulation including ethical codes, case law, academic problems, American training and law service, professional cultures within the jurisdiction within the law firm society changes that impact what lawyers can do, how they do it and so on defense lawyers are part of this constellation of constantly evolving forces that make up ethical behavior they do good by playing part of that role in the adversarial system they help the disadvantage often when no one else will they ensure that the justice system is reliable and fair they guard against miscarriages of justice and they respect and uphold the integrity of the administration of justice defense lawyers are not therefore hired guns and junkyard dogs to be exhortated they're champions of justice and they should be celebrated we probably have a few minutes if anyone has a question I'd be happy to give it a go So is there a point in terms of an approach to prostitution is there a point at which a defense lawyer exceeds the parameters of ethical prostitution because of bullying or overly aggressive bullying or overly aggressive bullying Yes I think there's no doubt that there is and as you know the ethical rules themselves have interdictions against harassing, vexatious, cross-examination overly repetitive cross-examination lots of case law says that that's improper I guess the difficult point is to know where and when the line is crossed to be able to identify that point obviously there's going to be some room for disagreement but also I think there's often a difficulty in that you know perhaps the crown isn't objecting perhaps defense counsel is going too far perhaps a judge isn't intervening when it's clear that that the cross-examination is simply bullying vexatious harassing it's not doing anything to legitimately advance the client's cause I mean interestingly I think many all good lawyers would say that that sort of cross-examination is not to the client's advantage it's exactly the opposite and yet it it does happen unfortunately do you think there's a rule for judges to be more proactive in instructing lawyers as to how they should conduct cross-examination and set before it starts to sort of say that these are difficult cases and I want my mind canceled that there are limits on your comment judges are often obviously reluctant to enter the arena but I'm wondering if there is a greater responsibility on the history to step up in these situations I don't know that there I don't think there'd be anything terribly wrong with making that comment I would suspect that few judges would do that I think they'd many judges would be concerned that making that comment would be perceived as a slight against defense counsel sort of an expectation that defense counsel was going to do something wrong having said that I understand that's not what you're suggesting and I think if framed in a respectful way that sort of comment would be would be fine I mean traditionally judges have been terribly concerned about appearing to be biased and entering the fray and that has changed very much and I think the people who are in Joel's class maybe have read the Groya case like Groya would not happen today because that's the case where the judge sat back and didn't do anything when defense counsel was making all these crazy arguments today the judge would say stop it would be all over within a few minutes of that happening or within a few times of Groya those arguments and I think the same approach hopefully is starting to happen more with intervening when cross-examination is going off the rails but you know I don't know if this is true but I was reading I think in one paper today or yesterday that the Alberta Court of Appeal overturned the decision in a sexual assault case because the judge was seen to be intervening too much during the cross-examination and that was perceived as helping be accused and being biased it's a it's a hard road to tread but I think judges have to be able to be prepared to get engaged when there's a need to do it David comment excessive partisanship is not exclusive to criminal law it was currently a case where maybe it was eliminated this week in a civil matter held disclosure where the amount of issue was half a million dollars and legal fees exceeded half a million dollars and a lot of the council is being considered for the courts with regard to excessive partisanship that drove the cuts so many of these issues although we're focusing on criminal law also applying to the evidence of the city in civil cases even though they're not strong as episodes of the procedure which government orders do even if they want to I practice criminal law for a couple of years sorry civil law for a couple of years and I certainly found it was a lot more partisan than criminal law in terms of the procedures and techniques used by opposing council the tone of letters and communications so criminal law is a cakewalk compared to that I mean just dig your thoughts on the English cab rank rule and how that compares with the committee and the freedom of choice of the defense not so far to representative yeah I'm not sure to what I have this feeling that maybe the cab rank rule is losing its allure in England and maybe it's been pulled back a little bit my sense was that the cab rank rule the idea that a lawyer has to take every client who comes in to see them that was always a bit of a fiction because the lawyers would only take in clients who could afford them and it's well known that if a lawyer doesn't want to take a case they just quote a fee that's exorbitant or higher than they think the client can pay the lawyers can also say well I'd love to take your case but I'm too busy now so there are lots of ways to get around it so but it does have the benefit as somewhat of a fiction of arguably allowing defense counsel to say look I'm just taking this case because this guy came through the door and you can't public shouldn't be judging me on taking on the case or being an advocate because I just take any cause no matter what whereas the argument can be made in Canada because lawyers have a choice that because they have a choice they're making a decision to represent Clifford Olson or something and they should be held morally accountable but I think if one understands the the adversarial system and defense counsel's role in it in Canada the argument that the cab rank rule would make a difference would stop the kind of complaints that we saw from Shannon Stubbs I don't think it really carries water so I'd say I think we're fine the way things are yeah good question that's it shall we oh sorry so balancing your personal ethics with the ethics of your role within the system well every lawyer has to be comfortable able to do that and so when a lawyer makes a decision to go into the system every lawyer has to be comfortable able to do that and so when a lawyer makes a decision to go into a particular area I think they have to be comfortable with from a personal perspective and their own ethics with what they're going to be doing as a lawyer so you know it's fine for someone not to want to do criminal law because they feel it's whatever the reason they don't want to help people who are charged with crimes personally that's fine there are some criminal lawyers who will not take on certain kinds of cases like I have a friend who represents the most notorious murder alleged murder alleged murder in British Columbia like she will not do cruelty to animals case ever so she makes that decision that's the kind of case she can't do because she won't be able to do a good job it's too upsetting for goes against her personal beliefs but ultimately you've got to be able to be at peace yourself with what you believe in as a person as an individual before you make the decision to go into whatever kind of law it is I mean I think that's the only way you're going to feel good about what you're doing that you're going to have a sense of self worth so on the thought of self worth we have a little book in here which may not be worth that much but thank you very much thank you