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THE “GOOD” CRIMINAL LAW BARRISTER Austin. M. Cooper Q.C.* The Concept of Profession !is" The Canadian justice system acknowledges the special professional status of barristers who appear in the criminal courts. It re uires that they be specially ualified. The ualifications include meeting education and professional standards! and achie"ement of e#pertise in their field. Their status entitles members of the defence bar to practice independently from the $tate in all its per"asi"e manifestations. That independence is considered one of the hallmarks of a free society. Crown counsel! as public officers! also perform an important role in the administration of justice in the criminal courts. As a function of their professional status! barristers ha"e a responsibility to practice in a spirit of public ser"ice. %rofessionalism is about dedication to justice and the public good. The commitment to professionalism also infuses two other "alues& a commitment to competence or learning! and a commitment to ethics or decency. And! integrity is at the heart of e"ery barrister's function. $ee& ( Attorney-General v. Law Society of B.C. #$%&'() S*C*R* +,-) per Este. /* t ++01++2* Referre3 to recent!. in Fortin v. Chretien #',,$() ' S*C*R* 0,, t p r * $-* 1 D* M4!! n) A33ress 5C !! to the B r n3 Con6oc tion) 7e8r4 r. )*! +,,+-! at http&.. sil"er. ueensu.ca.law.news.inthenews.con"ocationaddress.htm //////////////////// * The author is grateful to Anida Chiodo! 0.A.! M.A.! 11.0. for her assistance in preparing this paper. ( Chief 2ustice 3oy McMurtry! A4efining %rofessionalism 5Ad"isory Committee on %rofessionalism! 6orking 7roup on the 4efinition of %rofessionalism draft 8ctober +,,)- at www.oba.org.en.pdf.definingprofessoct+,,)re"dec.pdf. ( 3t. 9on. 0e"erley Mc1achlin! C.2.C.! AThree Ingredients to 1egal %rofessionalism @ 5Call to the 0ar Con"ocation in 8ttawa! :ebruary +,,,-. ( 9on. 2ustice 3osalie $ilberman Abella! Address 5The 1aw $ociety of ;pper Canada %rofessionalism 3e"isted! 8pening Address 0enchers 3etreat! 9ockley <alley 3esort! 8ntario! 8ctober )*! )===-! at http&..www.ontariocourts.on.ca.court/of/appeal.speeches.professionalism.htp ( 8ntario! 3eport of the Attorney 7eneral=s Ad"isory Committee! Charge Screening, Disclosure, and Resolution Discussions 58ntario& Queen=s %rinter! )==>- at +=. ?hereinafter! The Martin 3eport@ ( 9on. 2ustice :rank Iacobucci! AThe %ractice of 1aw& 0usiness and %rofessionalism 5Ao"ember )==)- *=5B- The Ad"ocate CD=. Profession ! n3 /43ici ! Go6ern nce. 0eyond the "alues and commitments inherent in the concept of professionalism! barristers who appear in the criminal courts in Canada are re uired to obser"e standards set by the go"erning law societies of the pro"inces in which they practice. They may be subject to discipline if they should act contrary to the rules of professional conduct. As well! they are super"ised by the judges of the courts before whom they appear. If they act improperly they may be denied an audience! or! in serious cases! may be cited for contempt. $ee& 1 L 9 Societ. of :pper C n 3 R4!es of Profession ! Con34ct 5Toronto) Ont rio) L 9 Societ. of :pper C n 3 ) /4ne '') ',,,) ! st "en3e3 on Octo8er '+) ',,+;* 1 R V. NEIL #',,'() + S*C*R* 2+$ AT PARAS* $'1$2* THIS CASES ADDRESSED THE ISS:E O7 CON7LICTS O7 INTERESTS AND THE D:T< O7 LO<ALT< OWED B< CO:NSEL TO A C:RRENT CLIENT* Ethic ! n3 Mor ! Consi3er tions for Defence Co4nse! The uestion often asked of defence lawyers by those with scant knowledge of the justice system is! Ho9 c n .o4 represent so"eone .o4 =no9 is >4i!t.?The @4estion eApresses concerns 8o4t the "or ! @4 !it. of the f4nction of 8 rristers in the cri"in ! B4stice s.ste"* P rt of the ns9er is th t 3efence counsel ha"e a recogniEed role in that system which society will respect! and in some cases! fund. The answer also in"ol"es recognition of the professional responsibility of defence counsel to obser"e legal and ethical boundaries in e#ercising their function. The answer may be informed by the knowledge that a barrister may ha"e little sympathy with his client or his cause and will undertake the defence out of a sense of professional obligation. 8ccasionally! a barrister may choose to reject a retainer! ha"ing regard to the criminal offence chargedF howe"er! there are commentators that would not allow the barrister that choice. $ee& ( 9on. Michel %roul# and 4. 1ayton! Ethics and Canadian Criminal Law 5Toronto& Irwin 1aw! +,,)- at Chapter +! Choosing and 3efusing Clients! %arts G H :. ( A.C. 9utchinson! Legal Ethics and Professional Responsibility 5Toronto& Irwin 1aw! )===-! Chapter D! 4ealing 6ith Clients ( :rom $tart to :inish! %art A& The Choice of Clients. ( 9on. Michel %roul#! AThe 4efense of the ;npopular or 3epugnant Client& $ome of the 9ardest Questions@ 5The Annual 2ohn $opinka Ad"ocacy 1ecture! Annual Con"ention H Gducation %rogramme of the 8ntario Criminal 1awyers = Association! Ao"ember )+! )===-. ( M. 0lake and A. Ashworth! A$ome Gthical Issues in %rosecuting and 4efending Criminal Cases @ 5)==C- Crim. 1. 3. )B. It is trite law that the Canadian system of criminal justice is based on the presumption that all persons charged with crimes are innocent until pro"ed guilty at a public trial. The trial is conducted before an independent judge pursuant to an ad"ersarial system. The state is represented by counsel who has the duty to present e"idence to establish the guilt of the defendant beyond a reasonable doubt. The e"idence may be challenged by the person accused! who must be present at her trial! and who may adduce other e"idence to support her innocence. The defendant may conduct her defence by herself! or may choose to retain counsel to conduct it for her. It is to the latter mandate that the concept of professionalism and the morality of defence counsel =s role is rele"ant.The system of criminal justice promotes the right of defence counsel! to stand in the shoes of defendants! and do for them in preparation for trial and at the trial what defendants would do for themsel"es if they had the skill and knowledge. Counsel ha"e a duty of loyalty to their clients and a fiduciary duty to ser"e them conscientiously. They must keep in confidence their clients communications.

They must present to the court e"ery fact and argument that supports the clients defences! and obtain for them the most fa"ourable results possible. SeeC 1 Rondel v. or!ley) #$%2%( $ A*C*$%$ 5H*L*;) per Lor3 Rei3 t ''-C AE6er. co4nse! h s 34t. to his c!ient fe r!ess!. to r ise e6er. iss4e) 36 nce e6er. r>4"ent) n3 s= e6er. @4estion * * * 9hich he thin=s 9i!! he!p his c!ientsD c se*E 1 L 9 Societ. of :pper C n 3 ) R4!es of Profession ! Con34ct R4!e F*,$5$; n3 co""entaryG R4!e '*,+ n3 co""entary* Although some clients may consider their defence counsel unrestricted in their duty to help them establish their innocence! counsel ha"e other obligations that may limit the performance of their mandate.0eyond their fiduciary duty to their clients! defence counsel! as professionals) h 6e o8!i> tions to the 3"inistr tion of B4stice. These may include the obser"ance of ethical and legal rules laid down by the legislatures! the legal profession! and the courts. Accordingly! the concept of professionalism as applied to defence counsel in"ol"es not only the fiduciary obligations to the client! but also the integrity and restraint with which counsel meet their other professional obligations. 8n occasion! counsels= recognition of their professional obligations may cause some tension with their clients. In R#N$EL V. #RSLE%& S'(RA) LORD REID WROTE AT PAGES ''-C AB:T) AS AN O77ICER O7 THE CO:RT CONCERNED IN THE ADMINISTRATION O7 /:STICE) #DE7ENCE CO:NSEL( HAS AN o6erri3in> 34t. to the co4rt) to the st n3 r3s of his profession) n3 to the p48!ic) 9hich " . n3 often 3oes !e 3 to conf!ict 9ith his c!ients wishes or with what the client thinks are his personal interests. $ee also& ( The Martin 3eport! supra at p.>> ( A.C. 9utchinson! supra! at Chapter =& Criminal 1awyers& %utting ;p a 4efence. ( M. 0lake and A. Ashworth! supra. Tension may arise! for e#ample! when a client instructs her counsel to lead e"idence at her trial when counsel knows that the e"idence is false. Counsel is prohibited from leading such e"idence! and must refuse. The client may "iew the refusal as a breach of counsel=s fiduciary duty. 9owe"er! the court and the 1aw $ociety demand that the prohibition be obser"ed. $ee& 1 1aw $ociety of ;pper Canada! 3ules of %rofessional Conduct 3ule *.,)5)- and commentaryF 3ule *.,)5+-5b-!5e-!5f-! and 5g-. 1 $. 1ubet! $. 0lock and C. Tape! Modern Trial d!ocacy, +nd ed. 5Aotre 4ame! Ind.& Aational Institute for Trial Ad"ocacy! Aotre 4ame 1aw $chool! +,,,-! Chapter )& Case Analysis! %ersuassion H $torytelling! %art II AThe Gthics of %ersuasi"e $torytelling. @ ( The Martin 3eport! supra! at >,(>). ( M. 0lake and A. Ashworth! supra! at +). There is nother potenti ! for tension 9hen) 34rin> tri !) co4nse! refers the presi3in> B43>e to 8in3in> !e> ! 4thorit. th t i"p cts 36erse!. on her c!ient=s c se* The c!ient " . fee! th t the 3isc!os4re 4n3er"ine3 his c se) n3 th t he 9 s 8etr .e3* B4t the r4!es th t >o6ern the profession ! re@4ire th t she 3isc!ose the 4thorit.* SeeC ( 1aw $ociety of ;pper Canada! 3ules of %rofessional Conduct! 3ule *.,)5+-5h-. ( M. 0lake and A. Ashworth! supra, at ++. A!tho4>h 3efence co4nse! " . inter6ie9 9itnesses) the. " . not 36ise the" s to 9h t to s .) or to ch n>e their stories* If the. 36ise the" i"proper!.) the. re t ris= of prosec4tion for tte"ptin> to o8str4ct B4stice* In addition! defence counsel may be under constraints as to the use of physical e"idence that they recei"e from their client or another person. In some circumstances! they may be compelled to act contrary to the instructions of their client in relation to the custody of that e"idence. $ee& ( R. V. )'RRA% 5',,,;) $FF C*C*C* 5+D; '&% 5ONT* S*C*/*;* ( A.M. Cooper! The Ien Murray Case& 4efence Counsels 4ilemma 5Mar. +,,>- *J Crim. 1.Q. )*). ( Criminal 1awyers Association 5April )==J Aewsletter- A$moking 7uns! 0loody $hirts! and <ideotapes& A <irtual 3ound Table 4iscussion@ at http&..www.criminallawyers.ca.newslett.apr=J.smoke.htm It is submitted that the obser"ance of professional and ethical constraints of that nature distinguish counsel from their clients. 8ur system of justice permits a client who is in fact guilty of a crime to be represented by counsel. 9owe"er! the same system re uires the barrister to obser"e rules that may conflict with the egocentric interest of their client. Although a client may be guilty of the crime charged! counsel is not entitled to act disreputably in conducting her defence. $ocietys recognition and support of counsels mandate to practice within those rules is! perhaps! a further answer to the moral concerns e#pressed by members of the public as to defence counsels role. $ee& ( A. C. 9utchinson! supra, at Chapter =& Criminal 1awyers& %utting ;p A 4efence ( $. 1ubet! $. 0lock! and C. Tape! supra" ( 9on. Michel %roul#! supra. It is my position! that good criminal law barristers will obser"e such rules despite conflicts they may cause with clients. It is a matter of professionalism. There may be instances where counsel may ha"e to e#ercise skilful diplomacy to retain the confidence of their clients. In some cases counsel may be discharged by their clients because of such conflicts. So"e Pr ctic ! Consi3er tions for Defence Co4nse! The good defence barrister! rather than the client! should direct the conduct of the defence. 9owe"er! counsel is responsible to act in good faith and in accordance with reasonable professional standards! including the e#ercise of skill and judgment. If a client insists on controlling the barrister=s management of the defence in a manner that the barrister considers unethical or gra"ely harmful to the case! the barrister may ha"e to consider whether to continue to act. $ee&

( 7. A. Martin! AThe 3ole and 3esponsibility of the 4efence Ad"ocate@ 5)=B=- )+ Crim. 1.Q. >JB at >C+ where he wrote& AThe defence counsel is not the alter ego of the client. The function of defence counsel is to pro"ide professional assistance and ad"ice. 9e must! accordingly! e#ercise his professional skill and judgment in the conduct of the case and not allow himself to be a mere mouthpiece for the client. $ee also& A. Maloney! Q.C. AThe 3ole of the Independent 0ar@ 5)=J=- 1aw $ociety of ;pper Canada $pecial 1ectures *= at B)(B+. ( R. V. B.*G.$.+ 5',,,;) $F+ C*C*C* 5+D; '&% 5S*C*C*; AT PARAS* +'1+0 WHERE MA/OR /*) WRITING 7OR THE CO:RT) HELD THAT THE DECISION B< DE7ENCE CO:NSEL NOT TO :SE THE COMPLAINANT =S HIDEOTAPED STATEMENT during the cross(e#amination of the complainant was made in good faith and in the best interests of the client and therefore there was no miscarriage of justice. Major 2. held at para. >*& A6here! in the course of a trial! counsel makes a decision in good faith and in the best interests of his client! a court should not look behind it sa"e only to pre"ent a miscarriage of justice. 6hile it is not the case that defence lawyers must always obtain e#press appro"al for each and e"ery decision made by them in relation to the conduct of the defence! there are decisions such as whether or not to plead guilty! or whether or not to testify that defence counsel are ethically bound to discuss with the client and regarding which they must obtain instructions. The failure to do so may in some circumstances raise uestions of procedural fairness and the reliability of the result leading to a miscarriage of justice 1 R.v.Sa"ra 5$%%&;) $'% C*C*C*5+3; $FF 5Ont* C*A*;) !e 6e to ppe ! ref=3 5$%%-; F2 C*R*R* 5'3; '-2n 5S*C*C*; t p r s* +$1++ where 3osenberg 2.A. held that the fact that counsel made legal submissions at the trial that did not coincide with the accuseds "iews did not p! ce co4nse! in 3is@4 !if.in> conf!ict of interest or co"pro"ise the f irness of the tri ! . 1 R. v. hite 5$%%-;) $$F C*C*C* 5+3; ''0 5Ont* C*A*; t '0+ where the court held that 8nce a client has pleaded not guilty! apart from a few fundamental decisions such as whether the client should testify! defence counsel decides how a case should be conducted. 4efence counsel are not mere mouthpieces for their clients. They conduct the case by e#ercising their professional skill and judgment in what they consider to be the best interests of their clients. Their control o"er the conduct of the case ordinarily includes deciding what witnesses to call! what witnesses to cross(e#amine and how to cross(e#amine. See !so R. v. S"ith 5$%%-;) $', C*C*C* 5+3; 0,, 5Ont* C*A*; t 0,210,&) 0$,10$$* 1 R. v. ,oani!!e 5$%%0;) $,' C*C*C* 5+3; +0 5Ont* C*A*;) !e 6e to ppe ! ref=3 5$%%-;) $$$ C*C*C* 5+3; 6i 5$.C.C.- at JJ(J= Austin 2.A. held that the client=s decision to refuse to follow his counsel=s ad"ice to gi"e e"idence in his own defence was made with a full appreciation of the likely conse uences and therefore counsel did not act improperly. Contrast with& ( R. v. -aylor 5$%%';) -- C*C*C* 5+3; 00$ 5Ont* C*A*; t 02- where 1acourciere 2.A.! writing for the court! held that AAn accused who has not been found unfit to stand trial must be permitted to conduct his own defence! e"en if this mean that the accused may act to his own detriment in doing so. The autonomy of the accused in the ad"ersarial system re uires that the accused should be able to make such fundamental decisions ?namely the decision of the defence to present and to present it as he chooses@ and assume the risks in"ol"ed. ( R. v. Swain 5$%%$;) 2+ C*C*C* 5+3; F&$ 5S*C*C*; t 0,010,2 L "er C*/*C*) s he then was! held& 7i"en that the principles of fundamental justice contemplate an accusatorial and ad"ersarial system of criminal justice which is founded on respect for the autonomy and dignity of human beings! it seems clear to me that the principles of fundamental justice must also re uire that an accused person ha"e the right to control his or her own defence ... An accused person has control o"er the decision of whether to ha"e counsel! 9hether to testif. on his or her o9n 8eh !f) and what witne!!e! to call* This is a reflection of our societys traditional respect for indi"idual autonomy within an ad"ersarial system ?emphasis added@. It has been said that the only decisions that the barrister should lea"e to the client are whether she should plead guilty or not guilty to the offence charged! and whether to gi"e e"idence in her defence at the trial. And e"en if the client has made those decisions! they may be o"erridden by the barrister in light of facts disclosed by the client. :or e#ample! if the client denies that she is guilty! the barrister is precluded from entering a plea of guilty on her behalf regardless of her instructions! and no matter how urgently the client may wish to plead to ha"e the matter resol"ed. If the client has admitted to her counsel that she has committed the actus reus of the offence charged! the barrister may not c !! her to testif. f !se!. th t she 3i3 not 3o the ct ch r>e3) n3 there8. s48orn perB4r.* SeeC ( 7.A. Martin! supra" ( M. %roul# and 4. 1ayton! supra! at Chapter >& 4ecision Making! %art C& Canadian Case 1aw and Commentary on 4ecision(Making Authority and Chapter C& %lea 4iscussions! %art I! 4uty to Ad"ise Client. ( 1aw $ociety of ;pper Canada 3ules of %rofessional Conduct! 3ule *.,)5C- and 5=-. Ethic ! consi3er tions for Cro9n Co4nse! Crown counsel are officers of the Court. As such they fulfil a public function which must be carried out fairly and in the public interest. They are public officers engaged in the administration of justice. In Bo.cher v. -he /.een& #$%00( S*C*R* $2 R n3 /* 9rote t '+1'FC It cannot be o"er(emphasiEed that the purpose of a criminal prosecution is not to obtain a con"ictionF it is to lay before a jury what the Crown considers to be credible e"idence rele"ant to what is alleged to be a crime. Counsel ha"e a duty to see that all a"ailable legal proof of the facts is presented& it should be done firmly and pressed to its legitimate strength! but it must also be done fairly. The role of prosecutor e#cludes any notion of winning or losingF his function is a matter of public duty than which in ci"il life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of the dignity! the seriousness and the justness of judicial proceedings. $ee also& 1 R. v. Savion and )i0rahi 5$%&,;) 0' C*C*C* 5'3; '-2 5Ont* C*A*; per I48er /*A* t '&%* 1 A*C* H4tchinson) !.pra) Ch pter %C Cri"in ! L 9.ersC P4ttin> :p A Defence) P rt EC The C se for the Prosec4tion* 1 1aw $ociety of ;pper Canada 3ules of %rofessional Conduct! 3ule *.,)5>- and commentary" ( The Martin 3eport! supra, at >)(>*. ( 8ntario& The Commission on %roceedings In"ol"ing 7uy %aul Morin! <ol. )(+ 58ntario& Queen =s %rinter! )==C- at ),*,(),*+. Cro9n co4nse! h 6e !e> ! o8!i> tion to " =e 3isc!os4re to the 3efence of e6i3ence in their possession* The legal duty of 3isc!os4re " . h 6e n ethic ! co"ponent* 7or eA "p!e) there is n

o8!i> tion to 3isc!ose to the 3efen3 nt e6i3ence th t " . ssist the 3efence* It is profession ! o8!i> tion)the 8re ch of 9hich " . !e 3 to "istri ! or to st . of the prosec4tion* In R. v. Stinchco"1e& #$%%$( + S*C*R* +'2) Sopin= /* spe =in> for the S4pre"e Co4rt of C n 3 9rote t p >e +F0C #A(!! st te"ents o8t ine3 fro" persons 9ho h 6e pro6i3e3 re!e6 nt infor" tion to the 4thorities sho4!3 8e pro34ce3 not9ithst n3in> th t the. re not propose3 s Cro9n 9itnesses. 6hen statements are not in e#istence! other information such as notes should be produced! and! if there are no notes! then in addition to the name! address and occupation of the witness! all information in the possession of the prosecution relating to any rele"ant e"idence that the person could gi"e should be supplied. ... If the information is of no use then presumably it is irrele"ant and will be e#cluded in the discretion of the Crown. If the information is of some use then it is rele"ant and the determination as to whether it is sufficiently useful to put into e"idence should be made by the defence and not the prosecutor. $ee also& 1 R. v. G.G.)) #',,F( N*S*/* No*& 5N*S*C*A*;* 1 R. v. Ati2ian& #$%%'( O*/* No* +,F0 5Ont* Gen* Di6*;* The prosec4tor "4st not "is!e 3 the co4rt* 7or eA "p!e) she "4st not conce ! fro" the co4rt rr n>e"ents " 3e 9ith 3isrep4t 8!e 9itnesses for the Cro9n th t might lead the court to more readily accept their credibility! and the re"elation of which might detract from their credibility. $ee& ( The Commission on %roceedings In"ol"ing 7uy %aul Morin! supra, at D*D(DDB. ( L 9 Societ. of :pper C n 3 R4!es of Profession ! Con34ct) R4!e F*,$5+; n3 co""entary. The Ont rio Cro9n Po!ic. M n4 ! re@4ires Cro9n Attorne.s to 3eter"ine 9hether ! based on all the admissible e"idence! there is a re son 8!e prospect of con6iction n3 9hether it is in the p48!ic interest to contin4e 9ith prosec4tion* If not) the. sho4!3 reco""en3 th t the ch r>e5s; not procee3* $ee& 1 The Martin 3eport! supra! at BD(BC. 1 R. v. Lafor"e) #',,+( O*/* No* &F0 5Ont. S4p* Ct* /*; t p r * -. This case in"ol"ed an application for B43ici ! re6ie9 of the Cro9n ttorne.s 3ecision not to p4rs4e prosec4tion* Jent /* he!3 th t Cro9n co4nse! 3i3 not ct in 8 3 f ith where he re"iewed the disclosure materials and pp!ie3 the thresho!3 test s set o4t in the Ch r>e Screenin> section of the Cro9n Po!ic. M n4 ! 9hen conc!43in> that there was no reasonable prospect of con"iction. $ee !so R. v. Bain) #',,+( O*/* No* $+, 5Ont* $up. Ct. 2.- At paras. J(C. ( (ER3S V. #N-ARI# *A--#RNE% GENERAL+) #$%%&( O*/* NO* F'$ 5ONT* CT* /* GEN* DIH*; AT PARA* + where 4ambrot 2. held that according to the charge screening principles established by the 8ntario Crown %olicy Manual! Abefore a prosec4tion >oes for9 r3) prosec4tor "4st first 3eter"ine th t there is re son 8!e prospect of con6iction) t =in> into consi3er tion !i=e!. 3efences) n3 "4st then 3eci3e if the prosec4tion is in the p48!ic interest* Crown counsel is not entitled! knowingly to present false e"idence to the court. To do so would not only constitute professional misconduct but could also constitute the crime of suborning perjury. So"e Pr ctic ! Consi3er tions for Cro9n Co4nse!* In the interest of a fair trial! decisions of appeal courts ha"e placed limits on how a Crown prosecutor may cross(e#amine an accused. $ee& - R. V. #,CI3 5',,';) $22 C*C*C* 5+D; F$& 5MAN* C*A*;* In this case! the court held that Crown counsel cannot cross(e#amine the accused as to his failure to pro"ide the police with an e#planation for what occurred or with any other information. $uch cross e#amination is highly improper as it undermines the presumption of innocence and the right to remain silent. # R. V. B#'4ASS 5',,';) $2% C*C*C* 5+D; FFF 5ONT* C*A*;* At para. )) the court held that Athe tone of the cross(e#amination was often sarcastic! personally abusi"e and derisi"e. The language used was emoti"e and it measured the appellant against a se"ere moralistic standard. The appellant was attacked for his lifestyle ... his se#ual acti"ities! his supposed heroin addition and his thie"ery In addition! Crown counsel repeatedly referred to the appellant as a Abare(faced liar and regularly injected his personal "iews and editorial comments into the uestions he was asking. - R. V. R#BINS#N 5',,$;) $0+ C*C*C* 5+D; +%& 5ONT* C*A*; AT PARA* +0 ROSENBERG /*A* HELD& AIn my "iew! Crown counsel=s cross(e#amination of the appellant was highly improper. :rom start to finish! it was designed to demean and denigrate the appellant and portray him as a fraudsman! a freeloader and a demented se#ual per"ert. Many of the uestions posed were laced with sarcasm and framed in a manner that made it apparent that Crown counsel personally held the appellant in utter contempt. In many respects! this was not a cross(e#amination but an attempt at a character assassination. @ ( R. V. SC4ELL 5',,,;) $F& C*C*C* 5+D; '$% 5ONT* C*A*;C t p r s* F2) 2F122 9here Rosen8er> /*A* he!3 th t it is in ppropri te to s= n cc4se3 @4estions on his choice to re" in si!ent n3 his 4se of the 3isc!os4re* ( K SEE ALSO R. V. (ARRING-#N 5$%&0;) ', C*C*C* 5+D; $&F 5ONT*C*A*; AT $&&* ( R. V. 4EN$ERS#N 5$%%%;) $+F C*C*C* 5+D; $+$ 5ONT* C*A*;C WHERE it was held that cross(e#amination is improper when uestions re uire the witness to comment upon the complainant =s credibility or gi"e an opinion that he was not ualified to gi"e. 1 R. V. 3'S3 5$%%%;) $+' C*C*C* 5+D; 00% 5ALTA* C*A*;C IT is i"proper to s= the cc4se3 9hether the co"p! in nt h s "oti6e to !ie or 9h. other 9itnesses 9o4!3 !ie or f !se!. i"p!ic te the cc4se3* SEE ALSOC R. V. N. *(.L.F.+ 5$%%%;) $+& C*C*C* 5+D; F% 5MAN* C*A*;G R. V. VAN$ENBERG4E 5$%%0;) %2 C*C*C* 5+D; +-$ 5ONT* C*A*;G R. V. $EFRANCESCA 5$%%0;) $,F C*C*C* 5+D; $&% 5ONT* C*A*;G LEAHE TO APPEAL RE7:SED 5$%%2;) $,F C*C*C* 5+D; HI 5S*C*C*;* 1 R. V. CAL$ER 5$%%2;) $,0 C*C*C* 5+D; $ 5S*C*C*;C Cro9n co4nse! c nnot >ener !!. cross1eA "ine n cc4se3 s to his prior inconsistent st te"ents to 4thorities not pro6en to 8e 6o!4nt r. or s to prior inconsistent st te"ents eAc!43e3 34rin> the Cro9n=s c se s 6io! ti6e of the Charter of Ri5ht! and Freedo"!*

(

R. V. $AL% 5$%%';) 0- O*A*C* -, 5ONT* C*A*; AT -2* CROWN counsels cross(e#amination of the appellant was A"igorous@ and included sarcasm and editorialiEing. At times! Crown counsel asked the appellant to comment on the "eracity of certain Crown witnesses. The court held that while Crown counsel =s the cross(e#amination of the appellant was improper it did not occasion a miscarriage of justice.@K

( KRV. 3'L$I( 5$%%,;) 2$ C*C*C* 5+D; +&0 5S*C*C*;C there re !i"its p! ce3 on the Cro9n re> r3in> cross1eA "in tion on the cc4se3=s prior testi"on.* See !soC N#EL V. -4E /'EEN) 5',,'; $2& C*C*C* 5+3; $%+ 5S*C*C*;* 1 R. V. %A3ELE%A 5$%&0;) ', C*C*C* 5'3; $%+ 5Ont* C*A*;C it is i"proper to s= the cc4se3 9hether the co"p! in nt is !.in> or co""ittin> perB4r.* There are also limits on the manner in which a prosecuting barrister may present his or her argument to a jury. They may not appeal to the jurys emotions in an inflammatory way. They may not misstate the e"idence adduced at the trial. :ailure to obser"e these limits may lead an appellate court to set aside a con"iction. $ee& 1 R. v. ).nroe 5$%%0;) %2 C*C*C* 5+3; F+$ 5Ont* C*A*; t p r s* +210F. In this case! the court held that while Crown counsels address to the jury was highly inflammatory! there was no miscarriage of justice because of the judge =s charge to the jury. 1 R. v. Chare!t 5$%%,;) 0- C*C*C* 5+3; +$' 5L4e* C*A*; t p* ++$1+' where the court held that Crown counsel e#pressed! in moralistic and hostile terms! his personal opinion of the appellant=s guilt and the appellants character. 9e used his oratorical skill to inflame the jurys passion and to appeal to their emotions. As a result! a new trial was ordered. 1 R. v. La1arre 5$%-&;) F0 C*C*C* 5'3; $-$ 5L4e* C*A*; t $-F1$-0* This case in"ol"ed a charge of criminal negligence causing death! resulting from impaired dri"ing. 4uring the closing address to the jury! the Crown made the following statements& ALou know! ?the deceased@ was twenty(three years oldF she had the right to return home at night. ?The deceased =s mother@ also had a right to e#pect that childM 4id they deser"e thatN 6ould you deser"e tomorrow morning to lose one of your children! twenty(three years old! struck by an indi"idual with a brain swimming in fourteen ounces of alcohol. Mont>o"er. /*A* he!3 th t the Cro9n) in " =in> these st te"ents 5 "on> others; 9ent too f r in ppe !in> to the e"otions n3 fe rs of the B4rors n3 s s4ch) ne9 tri ! 9 s or3ere3* 1 (i!ani v. R* 5$%-,;) $ C*C*C* 5'3; F-- 5S*C*C*; t F-& L s=in /*) in ordering a new trial! held that 8"er(enthusiasm for the strength of the case for the prosecution! manifested in addressing the jury! may be forgi"able especially when tempered by a proper caution by the trial judge in his charge ... A different situation e#ists where that enthusiasm is coupled with or consists of putting before the jury! as facts to be considered for con"iction! matters of which there is no e"idence and which come from Crown counsel =s personal e#perience and obser"ations.@ - B#'C4ER V. R.& S'(RA. ( 9on. Michel %roul# and 4. 1ayton! Chapter )+& The %rosecutor! %art G! Gthical 3estraints on Ad"ocacy. Profession !is" n3 the Desire to Win 4efence counsel are re uired to use their best efforts to achie"e for their clients what they would seek to achie"e for themsel"es. That is the professional mandate assigned to them by the Canadian system of justice. In most cases! that would in"ol"e assisting them lawfully to obtain a "erdict of not guilty. :rom the defendants points of "iew! they trust counsel to do all in their power to win their cases. If counsel are unenthusiastic about the result of their work! they would not be respecting their fiduciary obligations to their clients. A >oo3 cri"in ! prosec4tor sho4!3 present conscientio4s!. the 3"issi8!e e6i3ence 6 i! 8!e to pro6e the f cts s4pportin> the ch r>e* Crown counsels obligations would appear to be somewhat more narrowly defined than those of defence counsel by the decision in B#'C4ER V. -4E /'EEN& !.pra.! but he or she may prosecute the case firmly so that justice is done. I submit it is proper for a prosecutor to seek a con"iction as an aspect of seeking justice in the public interest. 9owe"er they must act in a manner that stri"es to ensure that the defendant has a fair trial. The recent decision by the 8ntario $uperior Court of 2ustice IA R. V. FEL$ER4#F& #',,'( O*/* F$,+ ADDRESSES this issue. Campbell 2. at paras. ++(+>! writes& ?++@ It is improper for Crown counsel to seek a con"iction in the sense of seeking a con"iction at all costs! or breaching the uasi(judicial duty of fairness and e"enhandedness. This principle is sometimes e#pressed by saying that it is not the function of the prosecutor OsimplyO to seek a con"iction! because his or her uasi judicial duties in"ol"e much more than simply seeking a con"iction. ... In this e#pression of the principle e"erything turns on the ualification OsimplyO! because it is appropriate for a Crown prosecutor to seek a con"iction so long as he or she does not seek it unfairly or at all costs. ?+>@ :ar from it being improper ?for@ Crown counsel to seek a con"iction! it is ppropri te for prosec4tor to see= con6iction s n spect of see=in> B4stice in the p48!ic interest* $ee also& ( 9on. Michel %roul# and 1ayton! supra! at B**! BB*! BJJ! BJC! and B=J. Accordingly! good criminal law barristers may seek success in the courtroom! pro"ided they practice within the legal and ethical rules which go"ern their profession. If they triumph by disregarding the rules! they are professionally diminished. It is their professionalism that distinguishes good barristers from the clients they represent or the defendants they prosecute. Profession !is" n3 Ci6i!it. In Ro!! v. La"port) #$%02( ' D*L*R* 5'3; ''0 t '+F) R n3 /*) referrin> to the 3ecision in $ale v. -oronto R. . Co. 9roteC AA ! 9 s4it is not te p rt.) n3 eAcept 9here there h s 8een c!e r n3 o8Bection 8!e eAcess) we should hesitate to put shackles on the traditional scope allowed counsel in his plea to the tribunal of his countrymen. $ee also& 1 R. v. Felderhof) #',,'( O*/* No* F$,+ 5Ont* S4p* Ct* /*;& !.pra& t p r * '-0 9here C "p8e!! /* 9roteC ATo 8e the s48Bect of profession ! 6i!ific tion " . not 8e e s.* B4t h r3 fo4>ht trial is not a tea party. ( $ale v. -oronto R. . Co.) #$%$0( +F O*L*R* $,F 5Ont* S4p* Ct* App* Di6*; t $,&* %erhaps because trials are necessarily ad"ersarial and confrontational! barristers are sometimes caricatured as being Ahired guns@ with little sense of dignity or honour.

$ee& ( 9on. Michel %roul#! supra. ( A. C. 9utchinson! supra! Chapter +& Traditional Accounts& Contents and Criticism! %art A& 9ired 9ands. ( 3. :. 4e"lin! AAormati"e! and $omewhere to 7oN 3eflections on %rofessional 3esponsibility 5)==D- >>5*- Alta. 1. 3e". =+* at fn. J+. ( 2. 2affey! A%rofessionalism $er"ed As Theme of Ad"ocates= $ociety $ymposium 52une )B! +,,,- +,5J- The 1awyers 6eekly. %erhaps! in light of the anger and aggression e#pressed by some defendants in criminal cases! their counsel feel justified in unleashing personal attacks on counsel who oppose them. %erhaps they are concerned that their clients will be disappointed if they do not. It is submitted that counsel ha"e a professional responsibility to respect the personal integrity of opposing counsel. In 0ritain! the practice whereby barristers refer to opposing counsel as Amy friend@ reflects the respect of the bar for restraint and dignity! in the trial process. That practice has been imported in some measure into Canada! and! in my "iew! should be more widely adopted by the bar here. Counsel ha"e a professional responsibility to preser"e the dignity of the forum in which they practiceF justice may not be seen to be done if the courtroom is "iewed as a "icious arena. Ci"ility on the part of counsel is not inconsistent with the "igour inherent in practice in the criminal courts. Ci"ility is one of the "alues that infuses professionalism. The issue of ci"ility in the courtroom has been addressed recently by members of the bench and bar. :or e#ample! the Ad"ocates $ociety of 8ntario has published a pamphlet entit!e3 (rinciple! of Civility for Advocate!. In it re rtic4! te3 so"e core princip!es of ci6i! con34ct for ! 9.ers* In the Introduction! 8ntario Chief 2ustice McMurtry wrote& the le"el of ci"ility at the 0ar relates directly to the le"el of professionalism of the legal profession. @ In the same document he wrote in the %reamble& Ci"ility amongst those entrusted with the administration of justice is central to its effecti"eness and to the public =s confidence in that system. Ci"ility ensures matters before the Court are resol"ed in an orderly way and helps preser"e the role of Counsel in the justice system as an honourable one. 1itigation! howe"er! whether before a Court or tribunal is not a Atea party@. Counsel are bound to "igorously ad"ance their client=s case! fairly and honourably. Accordingly! Counsel=s role is openly and necessarily partisan and nothing which follows is intended to undermine those principles. 0ut Counsel can disagree! e"en "igorously! without being disagreeable. 6hether among Counsel or before the Courts! antagonistic or acrimonious beha"iour is not conduci"e to effecti"e ad"ocacy. 3ather! ci"ility is the hallmark of our best Counsel. $ee & ( The Ad"ocates $ociety! Principles of Ci!ility for d!ocates! at& http&..amigocharts.com.amigo.),,/Ci"ility.pdf Also a"ailable on the Ad"ocates= $ociety website. ( 2.3. 8lchowy! A8n the 1oss of Ci"ility and the Aeed for A 3ein"igorated %rofessionalism& 8bjectionable Counsel! Conduct and Its Impact on Trial :airness @ 5+,,+- +B Ad"ocates Quarterly >++. ( 4. $tockwood! Q.C. AAd"ocacy Today& The 4ecline of %rofessionalism@ 58ct. )==J- > The Ad"ocates= $oc. 2. ). In R. v. Felderhof) #',,+( O*/* No* F&$% 5Ont* C*A*; Rosen8er> /*A* in the Ont rio Co4rt of Appe !) 9rote t p r >r ph &FC It is i"port nt th t e6er.one) inc!43in> the co4rts) enco4r >e ci6i!it. 8oth inside and outside the courtroom. %rofessionalism is not inconsistent with "igorous and forceful ad"ocacy on behalf of a client and is as important in the criminal and uasi(criminal conte#t as in the ci"il conte#t. Morden 2.A. of this court e#pressed the matter this way in a +,,) address to the Call to the 0ar& Ci"ility of not just a nice! desirable adornment to accompany the way lawyers conduct themsel"es! but! is a duty which is integral to the way lawyers do their work. Counsel are re uired to conduct themsel"es professionally as part of their duty to the court! to the administration of justice generally and to their clients. As Iara Anne Aahorney said in her article! A Aoble %rofessionN A 4iscussion of Ci"ility Among 1awyers 5)===- )+ 7eorgetown 2ournal of 1egal Gthics C)D! at C)B()J! Ci6i!it. 9ithin the !e> ! s.ste" not on!. ho!3s the profession to>ether) 84t !so contri84tes to the contin4 tion of B4st societ.* *** Con34ct th t " . 8e ch r cteriEed as unci"il! abrasi"e! hostile! or obstructi"e necessarily impedes the goal of resol"ing conflicts rationally! peacefully! and efficiently! in turn delaying or e"en denying justice.;nfair and demeaning comments by counsel in the course of submissions to a court do not simply impact on the other counsel. $uch conduct diminishes the publics respect for the court and for the administration of criminal justice and thereby undermines the legitimacy of the results of the adjudication.

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