While plenty of the cases I take to court deal with routine issues, such as how an adjudicator resolves a credibility issue or their interpretation of the evidence there are a significant number of judicial reviews that I advance that deal with far more significant issues.
You may have read my recent post about my success rate in these types of cases. Part of the reason I won so many hearings in summer 2015 related to finding certain pieces of evidence that called into question numerous breathalyser calibration certificates. In order to respond to this, the police amended a standard form that was submitted for every hearing with declarative information indicating that what they said was correct.
What happened next was very interesting.
Unsurprisingly, the tribunal relied on this information as resolving the conflict between the records I submitted and the records the police submitted.
This change was introduced in the evidence around the end of July, 2015. When I was unsuccessful, I appealed a number of decisions to the BC Supreme Court arguing that relying on these declarative statements by police, unsupported by any evidence, amounted to relying on a prior consistent statement that was not admissible for the truth of its contents.
The Government was initially reluctant to run the argument. Or so it appeared. They bought themselves a lot of time before setting the matter for hearing, even cancelling the first hearing date I had scheduled. We did not actually get in front of a judge until late January, 2016.
Shortly before the hearing date, the Government responded to the appeal. They were well beyond the time period to file a response. When I received the response that was filed in the appeal, I was shocked. The lawyers for the Government were suggesting that I had an obligation to forward material to the Superintendent that was harmful to my client’s case, along with the information that helped my client’s case.
Their position appeared to be based on the Code of Professional Conduct for British Columbia, which outlines the requirements for how lawyers behave. There is a section in the Code that states as follows:
- When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect.
The rule means that a lawyer cannot mislead a court or tribunal. A lawyer must be respectful. It has also been applied to ex parte proceedings (where one side is not represented or giving evidence) to mean that a lawyer must present both sides of the case. The lawyers for the Government appeared to understand this to mean that because there is only one person on the phone with the adjudicator during the IRP hearing, that the hearing is ex parte.
That, of course, is not true. The police submit the case for the Crown in the form of a Report to Superintendent and any required material. In fact, they are required to submit material under the Motor Vehicle Act, and there is no limitation as to what material the police may submit. The hearing takes place and the applicant at the hearing has the right to respond to the material submitted.
The rule is also qualified for situations involving defence counsel. Defence lawyers have other obligations to their clients, and are entitled to withhold information in many circumstances. Defence lawyers are required to advance every argument and ask every question, however distasteful, that assists their client in their defence. People criticized Marie Henein for asking tough questions, but she was doing what she had to do to comply with her ethical obligations to defend Jian Ghomeshi. Anything less would be a breach of her duty to defend her client.
The Supreme Court of Canada has chimed in on the issue, clarifying that the defence have the right to withhold disclosure. The leading case on disclosure is R. v. Stinchcombe. The Court said this:
I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.
Earlier this week, I had the opportunity to discuss this case with several lawyers. There was a mixture of Crown counsel (prosecutors) and defence lawyers there. All of those lawyers were shocked that the Government had taken the position that I was required to act against my client, and to provide evidence to the tribunal that was harmful to his case.
The Court was not moved by the argument of the Government that I had an obligation to provide material to the tribunal. During the hearing, the Supreme Court justice expressed his shock at the suggestion that a defence lawyer, retained to dispute a driving prohibition, was required to act against their client’s interests by providing information contrary to his case. The Government, rightly, backed away from the suggestion that I had done anything wrong. The Court had this to say at the end of the day:
 Mr. Earl seeks special costs because his counsel was accused of professional misconduct. The Superintendent had alleged that Ms. Lee failed to disclose that a number of other Certificates had the same expiry date as the ones tendered by Constable Dumais. It is argued that the failure to disclose that evidence was a suggestion by the Superintendent that Ms. Lee had engaged in unprofessional conduct.
 At the outset of this hearing the Superintendent indicated that he was not alleging professional misconduct on the part of Ms. Lee. Rather, the argument was that the other Certificates should have been placed into evidence because the Code of Professional Conduct for British Columbia (c. 5.1-1) requires counsel to do so.
 It is understandable that Ms. Lee was concerned about the position taken by the Superintendent. On its face, the language used was unnecessarily inflammatory and unfair.
 However, the Superintendent had clarified his position and says that he was not seeking sanctions against Ms. Lee, but simply wishing to clarify the obligations of counsel to disclose all information in a hearing before the adjudicator.
 The kind of language used by the Superintendent is to be avoided. Those kinds of remarks cut to the quick. They raise questions of integrity. Their harm far outweighs any correlation to the advocacy process.
It takes a certain type of person to be a defence lawyer. Not everyone can defend someone they know to be guilty, an issue defence lawyers have to grapple with on a daily basis. Not everyone can stomach the circumstances or facts of the types of cases that defence lawyers often have to deal with. And not everyone can rationalize asking a witness a tough question or putting an uncomfortable proposition to a witness in a trial. I’m not saying that being a defence lawyer is a soulless task. It is a task that requires objectivity, compartmentalization, and above all, a firm belief in the importance of the justice system and the procedural protections built into it.
Defence lawyers have to be critical thinkers, even jaded to some extent. Defence lawyers need to be able to look at a statement or a piece of evidence and question its reliability or determine how to undermine its reliability in the course of a trial. All of this has to be done without stepping into impermissible arenas of misleading the Court or perverting the course of justice, but still thoroughly and properly defending our clients. Defence lawyers quickly become experts in ethics and are constantly cognizant of where the ethical line is. It takes a high degree of creativity.
All of this is to say that there is a public perception about criminal defence lawyers that is wholly inaccurate. Shows like Breaking Bad or Better Call Saul are entertaining (I love them) but they are not realistic.
Defence lawyers are very ethical, creative, and play an important role in protecting the integrity of our justice system. Our ethical obligations, including the obligations to advance arguments in favour of our client, are fundamental to our free and democratic society. And I will not be persuaded that I should not advance my clients’ cases, defend my clients, or abandon arguments that are ethically sound and consistent with my duties as defence counsel.