Category Archives: Ethics and the Legal Profession

Prosecutors as Ministers of Justice?

By: Alice Woolley

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Three recent cases have brought to light bad behaviour by criminal prosecutors.

In R v Suarez-Noa, 2015 ONSC 3823 Justice Reid ordered a mistrial after the prosecutor suggested “to the jury that the accused had behaved like an animal rather than a human being,” calling the characterization “highly improper” and incapable of being “erased from the minds of the jurors” (at paras 10-11).

According to the CBC, in the Nuttall/Korody bombing trial British Columbia Supreme Court Justice Catherine Bruce said the prosecutors “took my breath away” with the “impropriety” of their decision to show a video to the jury that contained “footage of an actual pressure-cooker explosion.” She further described the prosecutor’s decision to ignore her express instruction not to refer to defences of duress and entrapment as “unspeakable” and as something she had “never experienced… before. Ever.” The CBC reported that Justice Bruce “said she would have called a mistrial had the proceedings not been so protracted and difficult”.

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Still Just the Facts: Applying the Bright Line Rule

By: Alice Woolley

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Case Commented On: Statesman Master Builders v Bennett Jones LLP, 2015 ABCA 142

In a unanimous judgment the Alberta Court of Appeal has reversed a decision by Justice Macleod removing Bennett Jones LLP as counsel for its longstanding client Matco Investments Ltd. on the basis of a conflict of interest (Justice Macleod’s decision is here). In a blog on that earlier judgment I suggested that the decision indicated the importance of the facts to the outcome in conflicts cases. While the firm had taken significant steps to manage the conflict, the case management judge may have been influenced by the fact it had not been as absolutely candid as it could be:

The unfortunate thing for the firm here is that in many ways it had been candid with Statesman. Its e-mail regarding the advance consent was pretty blunt as to what it was trying to do. But the lesson may be that there is very little judicial tolerance for an absence of candour in situations of conflict; a little bit of candour won’t do (“The more things change…”)

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Family Justice 3.5: Fostering a Settlement-Oriented Legal Culture

By: John-Paul Boyd

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This is the note on rethinking our approach to family justice that I never thought I’d find myself writing, and as a result I need to begin with an explanation and an apology. In this short post, I describe what I see as lawyers’ duties to promote settlement, to respect informed compromise and to refrain from litigating family law disputes without good and sufficient reason. First, however, I’ll explain the circumstances that have provoked me to write.

I’m involved in a number of the present efforts to reform family justice. In one particular group, I have received a certain amount of kickback when I suggest that lawyers should play a larger role at the front end of family law disputes, in order to steer as many of those disputes away from court as possible. (Well, perhaps not kickback so much as dismay.) I would invariably respond that the early involvement of lawyers would result in the parties receiving an explanation of the law and the range of likely outcomes, thereby minimizing unreasonable positions and moving the parties toward settlement, as I have described elsewhere. Although this struck me as self-evident, it is not.

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Trinity Western University: Your Tax Dollars at Work

By: Saul Templeton

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Case Commented On: Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25

Trinity Western University (“TWU”) claims it is a private religious institution. This is the explanation offered by the courts for denying students, staff and faculty at TWU protection under the Canadian Charter of Rights and Freedoms. This protection is denied even though it is generally accepted, even by supporters of TWU, that TWU’s Community Covenant, “indeed treat[s] LGBT people in a way that would have profoundly negative effects of [sic] their lives.” See Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25 [NS Barristers’ Society] at para 251).

What does it mean for a university to be publicly funded? I am a tax scholar, so I offer a definition supported by tax policy. TWU is publicly funded because it receives significant tax benefits as a result of its registered charity status. TWU is tax exempt, and therefore underwritten by public funding. The tax exemption is equivalent to a direct subsidy to TWU, since it represents tax revenue forgone, and governments must make up the shortfall elsewhere. TWU also issues charitable tax receipts that allow (and encourage) donors to give more money to TWU than they otherwise could, since the state gives donors a kickback on their taxes for doing so.

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Lawyers’ Representation, Lawyers’ Regulation and Section 7 of the Charter

By: Alice Woolley

PDF Version: Lawyers’ Representation, Lawyers’ Regulation and Section 7 of the Charter

Case Commented On: Attorney General (Canada) v Federation of Law Societies, 2015 SCC 7

In Attorney General (Canada) v. Federation of Law Societies, 2015 SCC 7 the Supreme Court of Canada precluded the application to lawyers of certain provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17, and the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations, SOR/2002?184. The Court held that, as applied to lawyers, those provisions violated s. 7 and s. 8 of the Charter. The violation of s. 8 arose from the provisions’ failure to protect adequately solicitor-client privilege in the context of searches permitted under the legislation. The violation of s. 7 arose because the provisions put lawyers’ liberty at risk and were inconsistent with fundamental justice. Specifically, because of the “conclusion that the search aspects of the scheme inadequately protect solicitor-client privilege” (at para 105) and, for a majority of the Court, because the provisions interfered with a newly articulated principle of fundamental justice: that the state may not impose duties on lawyers that undermine a lawyer’s commitment to her client’s cause. The Court declined to hold that independence of the bar was a principle of fundamental justice.

The conclusion by the majority that fundamental justice prevents improper interference with lawyers’ commitment to their clients is welcome. The rule of law requires legal counsel committed to protecting the ability of clients to enjoy the respect for their dignity and autonomy that the law provides (see my articles setting out this position here and here). The Court’s view of the legislation as unconstitutional also appears warranted; certainly the legislation’s search provisions seem plausibly to permit improper intrusions into privileged documents and information.

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