The Conduct of The Crown – Part II

Crown Attorneys wield a great deal of power in the criminal justice system. They have the resources of the state at their disposal, and can mobilize the police and witnesses with their powers to obtain subpoenas, search warrants and wiretap authorizations. As a result of the wide range of tools at their disposal, the lawyers who work for the Crown are required to conduct themselves in a manner that is scrupulously honest and above reproach, with careful regard to the rules of procedure, ethical behaviour and professional responsibility.

But how does one make sure that the Crown prosecutor does not overstep her bounds? It is not easy.

The conduct of the police is closely scrutinized by the courts and is the subject of applications under the Charter of Rights. Police officers are witnesses in court and are readily subject to cross-examination and to their actions and motivations. Not so the Crown Attorneys who call the shots on how a criminal case is conducted. Because Crown lawyers are “officers of the court”, and are held to high ethical standards by the Law Society’s Rules of Professional Conduct and the Crown Policy Manual issued by the Ministry of the Attorney-General, they are deemed by the courts to always be acting honourably and with the best of intentions. And for the most part, they are.

But what happens in the rare case where, in the heat of battle, which is a feature of our adversarial system, the Crown chooses to ignore or circumvent his ethical obligations, because he believes that the circumstances of his case justify it?

That very scenario happened recently to a client of the Defence Group, and we had to mobilize all of our resources to stop the Crown in its tracks.

The issue involved what is called an “undertaking”. An undertaking is a solemn promise made by one lawyer to another, or to the Court, during the course of litigation. It is a promise which must be scrupulously followed, because it invokes the ethical and professional obligations which all lawyers are sworn to uphold. If lawyers could not rely on each other’s undertakings, the entire process would collapse because there would be no trust or reliability to base important decisions on. And an undertaking given by the Crown in a criminal case is particularly important, because of the higher duty placed upon the Crown in its dealings with the public and the justice system (see the “Conduct of the Crown – Part I”, the topic of our last blog), and because the stakes for a criminal defendant are high.

In this situation, our client, who we will refer to as S.O., was charged with murder, committed during a botched robbery in Mississauga involving two other accomplices.

During lengthy pre-trial negotiations and a hard-fought preliminary inquiry, defence counsel Arun S. Maini and Shannon McPherson fought successfully to have murder charges reduced to manslaughter and a lesser sentence. The client’s main concern in resolving the charges was that he not be required to testify against his accomplices: he just wanted to accept responsibility for his part in the crime, and pay his dues by serving out his sentence. He wanted this not just to protect himself from retaliation, but also to honour his loyalty to his friends and his community, which, while many in society would see as misguided sentiments, he strongly believed in.

As part of the resolution negotiations, we were successful in securing the agreement of the Crown attorney that our client not be called as a witness in any proceedings related to this homicide. While this was an extremely rare agreement, it was made by one of the province’s most senior Crown attorneys, with more than thirty years’ experience in prosecuting homicides. We secured this undertaking in writing and on the record in the plea proceedings. Moreover, an undertaking given by one prosecutor is considered to be given by all of them, so we had as much assurance that we could get that our client’s interests were secure.

As a result, the Crown got their guilty plea, and the client was able to serve a sentence on a far lesser charge than murder, with an iron-clad undertaking that he would not have to testify against the others.

Unfortunately, despite all the steps that we had taken to protect our client, during the trial the following year of one of the accomplices for first degree murder, a different prosecutor tried to subpoena our client S.O. to testify in court. This was a direct violation of the Crown’s undertaking that he would not be. As soon as we learned of the prosecution’s intentions, we took action immediately to stop this abuse of process. We met with the head Crown Attorney for the Region of Peel, and consulted with the Law Society and the Criminal Lawyers’ Association. We also met with the criminal defence lawyer who was representing the defendant on trial. We filed an application to quash the subpoena and for a court order to stop the Crown from calling our client as a witness.

Ultimately, we were successful in persuading the judge to stop the proceedings and uphold the undertaking that the Crown had committed to with our client. In doing so, we not only brought pressure to bear on the prosecutor from his superiors in the Crown’s office; we also argued the motion in court using case law, and statements of policy and principle from the Crown Policy Manual, the Law Society’s Rules of Professional Responsibility, and excerpts from the important and highly influential Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, also known as the Martin Committee Report. The thrust of all of these legal sources is that undertakings between lawyers, especially by the Crown, are virtually sacrosanct, and entitled to the utmost respect and protection by the courts.

The following are some excerpts from the materials we presented to the court in our successful defence of our client’s interests.

From the Crown Policy Manual (Ministry of the Attorney General for Ontario):

“Resolution Discussions”:
…Unless there are exceptional circumstances, Crown counsel must honour all agreements reached during resolution discussions.

From the Rules of Professional Conduct (Law Society of Upper Canada), Rule 6, “Responsibility to Lawyers and Others”:

“Undertakings”
(10) A lawyer shall not give an undertaking that cannot be fulfilled and shall fulfill every undertaking given…the person to whom the undertaking is given is entitled to expect that the lawyer giving it will honour it personally…

From the Martin Committee Report, Recommendation 53:

…counsel must honour all agreements reached after resolution discussions. However, on rare occasions it is appropriate for senior Crown counsel, after reviewing an agreement made by the Crown, to repudiate that agreement if the accused can be restored to his or her original position, and if the agreement would bring the administration of justice into disrepute.

(None of these preconditions existed in our client’s case to justify the Crown’s actions).

From the Nova Scotia Court of Appeal in R. v. Goodwin (1981), 43 N.S.R. (2d) 106, cited with approval by the well-respected jurist C. Hill J. in R. v. R.N.M. (2006), 213 C.C.C. (3d) 107 (Ont. Sup. Crt.):

The Crown was under no duty to make a bargain…It may be that the bargain should not have been made…However, it was made and…it must be honoured. Plain honesty and fairness demand that the agreement not now be repudiated…A bargain is a bargain and, if the Crown does not wish to be bound by it, the simple solution is to make no bargain at all.

Mr. Maini argued to the court that in the Paul Bernardo case, where the government made an ill-advised and ill-conceived deal with his accomplice Karla Homolka to obtain her testimony, the Crown’s subsequent attempts to resile from the agreement were struck down on the basis of the principles discussed here: a deal is a deal. Given that our case did not involve facts anywhere near as notorious as that case, and that there were no ethical or policy reasons to renege on a carefully negotiated resolution agreement between experienced counsel, the undertaking by the Crown should be upheld. The Court agreed with us, and we were therefore able to protect not only our client’s interests, but were successful in upholding this most important ethical principle implicating the integrity of the administration of justice.