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Effective August 24, 2009 Cooper & Sandler has become a limited liability partnership (“LLP”), as permitted by the Partnerships Act and the Law Society Act and is now known as “Cooper & Sandler LLP” (the “Firm”). The designation of the Firm as an LLP does not create a new firm. The Firm continues as a partnership but with a degree of limited liability afforded to its partners, as described in the legislation.  As in the past, in the event of a negligent act committed by a partner or associate of the Firm, all of the firm’s existing assets and insurance protection remain available to fulfill its obligations. The LLP legislation limits the personal liability of the firm’s partners by providing that a partner is not personally liable for any debts, obligations or liabilities of the firm that arise from any negligent act by another partner or by any person under that negligent partner’s direct supervision or control. However, every partner of the Firm remains personally liable for his or her own negligent actions and for the negligent actions of those whom he or she directly supervises or controls. The Firm’s status as an LLP does not alter or limit its insurance coverage, which remains in place in accordance with the requirements of The Law Society of Upper Canada. Toronto Criminal Defence Lawyers. Should you wish more information, please feel free to <a href="/contact-us">Contact Us</a> at your convenience.

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Cooper & Sandler has been specializing in all areas of criminal law with 7 Toronto criminal lawyers including Toronto criminal defence for dui, sexual assault, drunk driving, drug charges. Call (416) 585-9191.

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Effective August 24, 2009 Cooper & Sandler has become a limited liability partnership (“LLP”), as permitted by the Partnerships Act and the Law Society Act and is now known as “Cooper & Sandler LLP” (the “Firm”). cooper-sandler-is-now-llp

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Cooper & Sandler is Now LLP

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1 Article Published by Canada Law Book in the Criminal Law Quarterly, Vol. 47, pg. 41 Author: <a target="_blank" href="/criminal-defence-lawyers/austin-cooper">Austin Cooper, Q.C</a>[<a href="#_ftn1">1]</a>  About 45 years ago a man came into a lawyer’s office and retained him to defend him on a charge of capital murder.  It was the middle of the night.  The lawyer (who later became a judge) determined that there was indeed a warrant out for his client’s arrest for murder, and advised him that he must surrender to the police.  However, the lawyer noticed that the front of the client’s shirt was covered with blood.  He suggested that the man remove his shirt; the lawyer put it in his file. When the accused surrendered himself to the homicide squad, of course the first thing they noticed was that his shirt was missing.  (It was February and very cold outside.) The lawyer became concerned as to whether he had acted properly in putting the bloody shirt in his office file, and he called the late Arthur Maloney, then a prominent criminal lawyer, and sought his legal advice in confidence.  Mr. Maloney, who in turn became concerned, phoned Arthur Martin, the then Dean of the Criminal Bar, and retained him to assist in the opinion.  Ultimately John Robinette, Charles Dubin and Joseph Sedgwick were consulted about the ethical problem.  Those notable counsel, all of whom were Benchers of the Law Society, then met in an office at the top of the Canada Life tower in Toronto on a Saturday morning to consider the joint advice they should give.  From atop the tower the advice came down to the lawyer that he should deposit an envelope with the shirt in it on the Senior Crown Attorney’s desk on the following Monday morning, without disclosing where the shirt came from.  Then he should withdraw from the case as he might be a witness, and he should promptly advise his client as to what he was instructed to do. At that time, there was no jurisprudence in Canada that provided direction, and the Rules of Professional Conduct in Ontario were largely silent on the issue.  In the circumstances the lawyer felt he had no option but to follow the advice and on the Monday morning he instructed another lawyer to put the envelope on the Crown Attorney’s desk without revealing who had retained him; he then withdrew from the defence. After that, opinions of prominent counsel were expressed at panels conducted by the Law Society or the Advocates Society during which it was discussed what should be done with a “bloody shirt” or “smoking gun” that might be tendered to counsel in a hypothetical murder case.  Some of those counsel were involved in providing the opinion in the original “bloody shirt” case.  There were also commentaries on the issue in articles published in legal journals. For example, in 1969 the Law Society sponsored a program entitled Defending a Criminal Case.  As part of the program a panel of leading lawyers dealt with some ethical issues confronting counsel, including one in which a hypothetical client puts a gun on his lawyer’s desk after retaining him on a charge of murder and says. “This is the gun I shot him with.”  The panelists were asked what the lawyer should do with the weapon.  One of them, the noted counsel Joseph Sedgwick, Q.C., is recorded as saying:<a name="_ftnref2"></a><a href="#_ftn2">[2]</a>  Certainly it is not an easy question to answer.   Counsel is, of course, an officer of the  court and as such he owes a duty to the court and certainly he owes a duty not to conceal or destroy very important evidence and also if he aids in concealing or destroying evidence he may very well put himself in jeopardy as an accessory after the fact under Section 23 of the Code which applies to persons, and lawyers, I suppose, are persons; what the visitor may tell counsel, that the statement “This is the gun I shot him with”, is a privileged communication, but the gun, the physical object, is a piece of evidence and as to it different  considerations may well apply.  For myself I’d be strongly inclined to hand it back without any advice as to what he should do with it.  But if he wouldn’t take it or if he ran away before the lawyer could collect his senses and that might well happen, then I think the lawyer should consider handling the gun with great care so as not to either leave any fingerprints on it or obliterate any that might be there and then deliver it to the policy or preferably, I think, to the Drown attorney saying merely that a person whose name is cannot divulge left the gun in his office.  And then if the man is later arrested and charged with murder, in view of the difficult position of the first lawyer, he should of course decline the defence if it is offered to him.  And then if he is subpoenaed as a witness it will be for the trial judge to decide the extent of his privilege as counsel, particularly with relation to the delivery of the gun.  That’s the best I can do for you except to add that a not unsimilar case did arise within the last five or six years.  I and some other lawyers were consulted and that’s about the advice that we gave to the lawyer.  The esteemed g. Arthur Martin (later a Justice of the Ontario Court of Appeal), in an address to the Advocates Society in 1970 entitled “the Role and Responsibility of the Defence Advocate” discussed a similar problem in this way:<a name="_ftnref3"></a><a href="#_ftn3">[3]</a>  A man enters a lawyer’s office and says that he has just killed a man and expects to be arrested shortly for murder.  He requests the lawyer to represent him and the lawyer agrees to do so.  The client pulls a pistol out of his pocket and drops it on the desk in front of the lawyer and says: “this is the gun I shot him with.”  What should the lawyer do?  If he says: “take the gun and come back after you have disposed of it”, he has committed a criminal offence unless, of course, he can persuade a jury at his own trial that his intention was merely to instruct the client that he should leave the pistol at his residence so that it would be available to the police under a search warrant.  If he takes possession of the pistol and puts it in his desk or vault a serious problem is created.  Obviously, if he buried the pistol in his backyard he would be an accessory after the fact.  If he puts it in his desk or vault, may it not be argued that he has just as effectively concealed it? The matter might, I suggest, be quite different if the defence was accident and counsel required the pistol in order to have it examined by a gunsmith with a view to establishing that it had a defective mechanism causing it to be likely to discharge accidentally.  Even under these circumstances he should, in my view, notify the prosecution well before the trial of his possession of the pistol. It is obvious that there are many areas in connection with the defence of criminal cases where little guidance can be found in the rulings of the governing bodies of the legal profession, the case law, or in other authoritative material. In my view the time has come for the governing bodies of the legal profession to establish a specific code of professional conduct with respect to the defence function. The recent decision in the case of Ken Murray was keenly awaited by some members of the criminal bar because they hoped it would settle judicially the rules as to how lawyers should deal with evidence in their possession that incriminates their clients. In the Murray case<a name="_ftnref4"></a><a href="#_ftn4">[4]</a> it was proved that on May 6, 1993, after he was retained by defend Bernardo for domestic assault and a number of rapes in Scarborough, and while a police investigation was ongoing for two murders, on Bernardo’s written instructions, Mr. Murray retrieved six videotapes from the bathroom ceiling on the second floor of the house that Bernardo occupied with his wife, Karla Homolka.  He was with his junior and a law clerk, and they made a pact not to reveal to anyone what they had found.  Murray said he felt he had found a “bonanza” for the defence.  The tapes were locked in a safe in his office.  Twelve days later, on Bernardo’s written instructions, Mr. Murray viewed the tapes and made a copy that he kept in a secure place.  Two of the tapes (the “critical tapes”) were horrific depictions of gross sexual assaults on Leslie Mahaffy and Kristen French, two young women who had disappeared from their family homes and whose bodies had been found in circumstances that suggested homicide.  The tapes demonstrated that Bernardo was the prime culprit in the assaults while Karla assisted in them and in their videotaping.  The tapes were circumstantial evidence that Bernardo killed the two girls and hard evidence that he sexually assaulted two others, Tammy Homolka and Jane Doe. Also portrayed on the two critical tapes was Karla administering a noxious inhalant to her sister Tammy Homolka and to a woman identified as Jane Doe.  While Tammy and Jane were unconscious, Bernardo could be seen sexually assaulting them.  The inhalant ultimately led to Tammy’s death.  On the tapes Karla could be seen subsequently luxuriating in the death of her sister while she and Bernardo made love in her sister’s bed. Four of the tapes (the “non-critical tapes”) showed Karla performing sexually provocative acts, once with a prostitute, and once while play-acting for the camera, during which she made sexually explicit comments.  It was later submitted that the critical tapes demonstrated that Karla was guilty of the murder of her sister and all the tapes put the lie to Karla’s statements to the authorities that she was an abused wife who was under the  control of her husband. In May 1993, Karla Homolka negotiated with the prosecuting authorities and ultimately a deal was struck whereby she would plead guilty to manslaughter in respect to the deaths of Leslie Mahaffy and Kristen French.  The facts regarding the death of her sister Tammy would be read in during her sentencing hearing, and the crown and defence would jointly submit that imprisonment for 12 years would be an appropriate sentence for her.  She agreed to be interviewed by the police and to give evidence for the prosecution at Bernardo’s trial for murder.  Ultimately, the deal was implemented, and Karla was sentenced to 12 years. Mr. Murray held the tapes for some 17 months; it was his evidence that he intended to sue them after Bernardo’s preliminary hearing to attempt to negotiate a plea for him, or, at trial, to demonstrate that it was not Bernardo who killed Leslie Mahaffy and Kristen French, but Homolka.  That was Bernardo’s defence from the outset.  He intended to use the non-critical tapes to show that Karla was not a battered wife who was coerced into participating in Bernardo’s sexual crimes’ she was a willing participant in gross sexual conduct.  Murray felt that he could hold the tapes in his file to show at trial that Karla was the actual killer of the two girls. However, in August 1994, Bernardo’s instructions changed.  He maintained that he had no contact with the two victims and he instructed Murray to suppress the videotapes (which clearly demonstrated Bernardo’s involvement with the victims).  Mr. Murray arranged for John Rosen to take over the defence of Bernardo, and applied to the trial judge to be removed from the record as counsel for that accused.  He sought the advice of the Law Society as to what he should do with the videotapes, and was advised in writing to turn them over to the judge presiding at the Bernardo trial.  He attempted to do that, but ultimately the tapes were turned over on consent to Bernardo’s new counsel, John Rosehn, with the approval of the court.  Mr. Rosen, about 12 days afger viewing them, turned them over to the police. At Bernardo’s trial, the videotapes were introduced into evidence by the prosecution.  Karla Homolka was vigorously and effectively cross-examined by defence counsel to demonstrate that she was not an abused coerced wife who unwilling indulged in sexual activity with the victims, but a person who enjoyed sexually assaulting them and could be their killer.  However, Bernardo was convicted by the jury of murdering the two girls. Subsequently, Mr. Murray was charged with attempt to obstruct justice for concealing the critical tapes for 17 months.  Apparently, the prosecution had no quarrel with M. Murray’s handling of the non-critical tapes.  However, it alleged that his retention of the critical tapes for 17 months constituted an attempt to obstruct justice because they constituted incriminating evidence of Bernardo’s murders, and the defence had no legal right to conceal their existence for the months preceding the Bernardo trial . Mr. Murray took the position that he was legally entitled to retain all the tapes to use at trial in his client’s defence.  Thus the legal issue arose as to his right to retain the critical tapes for the defence. After a trial that continued for seven weeks, Justice Patrick Gravely delivered written reasons for acquitting Mr. Murray,.  However, his decision did not address all the parameters of the problem involving counsel’s obligations as to incriminating evidence.  His reasons did refer to the dearth of legal authority in Canada on the issue and the articles and comments by lawyers on panels that sough to address it, and reflected that if Mr. Murray had consulted them he might have been “confused”.  Justice Gravely characterized the videotapes as being “products and instrumentalities of crime” which were ‘far more potent hard evidence than the oft-mentioned “smoking gun” and “bloody shirt”.<a name="_ftnref5"></a><a href="#_ftn5">[5]</a>  They were dramatic evidence of Bernardo’s crimes.  They were not covered by the solicitor-client privilege.  He cited the Canadian writes and panelists that dealt with what lawyers should do with “bloody shirts” and “smoking guns” and concluded that although Mr. Murray perhaps had the right to retain the tapes for a reasonable time to view them or test them (although testing them was not contemplated), he had no right to conceal the tapes until Bernardo’s trial.  Because returning the tapes to Bernardo or to the place where he obtained them was not possible, he had three options:  to turn them over to the authorities, or to turn them over to the court, or to notify the authorities of their existence, and then litigate the issue whether he could retain them in the face of a search warrant. Justice Gravely held that the concealing of the tapes for 17 months until Bernardo’s trial had a tendency to obstruct the course of justice, and therefore the actus reus of the offence was proved.  On the issue of whether Mr. Murray willfully intended to obstruct justice, because it was feasible that Mr. Murray could have used the tapes for the defence and may well have believed that he had no obligation to disclose the tapes until the trial, he found the necessary mens rea was not proved.  Accordingly, he found him not guilty. For those of us who practice in the criminal law, there are still ethical and practical problems associated with the possession of physical evidence that might be considered inculpatory of our clients. For example, suppose a client charged with fraud or tax evasion delivers 50 cartons of documents to your office and tells you they assist in her defence.  They include correspondence, books of account, personal diaries, investment strategies, etc.  Should you take them or should you suggest that the client keep them in case there may be inculpatory documents among them?  If, as I expect many responsible lawyers under the present practice would, you decide to take them and to spend dozens of hours reviewing them, what is your responsibility if you should find among the many papers three letters that are evidence that inculpates the client?  Suppose that they may have some minimal value for the defence in the context of the other documents in the cartons.  What is your legal (and ethical) obligation in respect to those letters?  Suppose, on the other hand, they are “smoking guns” in the sense that they are instruments by which the client might have committed tax evasion, and therefore powerful evidence of guilt. Can you retain them, even though you realize you probably will never use them at the trial?  Should you return them to your client with instructions to keep them safe and not to destroy them even though they hurt her case severely?  Are you obliged to turn them over to the prosecution anonymously, or at least to notify the prosecution of their existence?  Are you required to withdraw from the defence because you may be a witness?  If the principles in the Murray decision have applicability to documents, perhaps you have the obligation to turn them over, or at least to notify the authorities.  The intention to conceal them permanently may be alleged to be not only unethical, but criminal.  Is there a difference in the obligations of counsel with respect to documents as opposed to guns, knives and other hard evidence of criminality?  That is a distinction that has been made by some commentators. A line of American authorities, which was referred to by Justice Gravely, holds that instruments of crime such as guns or knives and other inculpatory evidence of crimes given to attorneys by their clients are not covered by solicitor-client privilege.  Or, even if they are privileged, they must be turned over to the prosecution while the confidentiality of the source of the evidence is maintained.  In other words, although the attorney is required to produce the evidence to the court, the prosecution may not lead evidence to prove that the gun or knife came from the defendant’s possession.  But, as we shall see, there may be exceptions even to that rule. The seminal U.S. case is State v. Olwell,<a name="_ftnref6"></a><a href="#_ftn6">[6]</a> decided by the Supreme Court of Washington in 1964.  The Olwell case involved a coroner’s subpoena issued to an attorney, which demanded that he produce all knives in his possession relating to three persons, one of whom was his client.  The knife had come into the possession of the attorney after he was consulted by his client’ it was a possible murder weapon.  The attorney refused to comply with the subpoena, claiming solicitor-client privilege, and he was cited for contempt by the coroner.  He appealed to the supreme Court of Washington, which held that the knife itself was not protected by solicitor-client privilege.  The court said:<a name="_ftnref7"></a><a href="#_ftn7">[7]</a>  We are in agreement that the attorney-client privilege is applicable to the knife held by the appellant, but do not agree that the privilege warrants the attorney, as an officer of the court, from withholding it after being properly requested to produce the same.  The attorney should not be a depository for criminal evidence (such as a knife, other weapons, stolen property, etc.), which in itself has little, if any, material value for the purposes of aiding counsel in the preparation of the defence of his client’s case.  Such evidence given the attorney during legal consultation for information purposes and used by the attorney in preparing the defence of his client’s case, whether or not the case ever goes to trial, could clearly be withheld for a reasonable period, should, as an officer of the court, on his own motion turn the same over to the prosecution.  We think the attorney-client privilege should and can be preserved even though the attorney surrenders the evidence he has in his possession.  The prosecution, upon receipt of such evidence from an attorney, whether a charge against the attorney’s client is contemplated (presently or in the future), should be well aware of the existence of the attorney-client privilege.  Therefore, the state, when attempting to introduce such evidence at the trial, should take extreme precautions to make certain that the source of the evidence is not disclosed in the presence fo the jury and prejudicial error is not committed.  By thus allowing the prosecution to recover such evidence, the public interest is served, and by refusing the prosecution an opportunity to disclose the source of the evidence, the client’s privilege is preserved and a balance is reached between these conflicting interests. The court said further:  “The evidence in the present case would be protected for a reasonable period of time if it is of value to counsel in the preparation of the defence of the client’s case.”<a name="_ftnref8"></a><a href="#_ftn8">[8]</a> However, in the circumstances, the court found the subpoena to be defective and therefore dismissed the contempt charge against Mr. Olwell. On the other hand, in a subsequent case in California,<a name="_ftnref9"></a><a href="#_ftn9">[9]</a> a lawyer who was told by his client in a murder and robbery case that he had taken the victim’s wallet, removed the money and put the wallet in a trash can behind the client’s house sent an investigator who then found the wallet and brought it to counsel.  The lawyer then examined the wallet and turned it over to the police.  A subpoena was issued to the investigator to testify for the prosecution as to where he found the wallet.  Defence counsel at trial argued that although the wallet itself was not privileged, its location was, and that the prosecution should be denied the opportunity of proving the wallet was in the trash can because the source of that information came from defendant in a privileged communication.  He cited the decision in Olwell.  The court agree that the communication was privileged, but refused to apply the Olwell ruling to exclude the evidence even though the defendant was the source of the information as to where the wallet could be found.  The court held that having been instrumental in altering or removing the physical evidence of the wallet, and thereby preventing the police from finding it later in the garbage can, the defendant could not invoke the claim of privilege to prevent disclosure of where the wallet was found; in effect, by removing the wallet, the defence had “destroyed” critical information.  Accordingly, the prosecution was entitled to prove that the wallet was found in the trash can behind the client’s house. In a later case in 1978 in Alaska,<a name="_ftnref10"></a><a href="#_ftn10">[10]</a> the defendant was charged with kidnapping and multiple rapes.  A third person gave the defence attorney a written plan for the kidnapping drawn by the accused.  Counsel returned the plan to the man who had given it to him, who immediately turned it over to the police.  The attorney then resigned from the defence.  He was called as a witness against his former client to prove his receipt of the plan from the third party and its connection to the accused.  The defendant was convicted at trial and argued on appeal that his right to adequate representation was violated by his lawyer advising the state of the existence of the plan.  The court held that the attorney had not provided ineffective representation to the defendant; it extended the Olwell reasoning to documents and decided that the attorney was not entitled to retain possession of the plan.  Failure to produce the plan would have been a criminal offence under an Alaskan statute that prohibited concealment of evidence. All of the American cases I have referred to involve incriminating evidence that apparently had no value for the defence.  There have been a number of articles in legal publications in the United States discuss the Olwell line of cases.  Some of them are critical of the cases because of the burden they put on defence attorneys and the resulting  impairment of their ability to provide their clients with proper defences. In 1993 a blue ribbon panel of circuit chief justices and judges, prosecutors and defence counsel among whom was the noted legal ethicist and counsel Sam Dash, who was counsel to the Senate Watergate Committee and ethics advisor to Kenneth Starr, the Special Counsel appointed to investigate President Clinton) recommended to the American Bar Association standards of ethical conduct for defence attorneys.  Among them were standards governing the the possession and use of incriminating evidence.  The association adopted those standards, and they are published.  Of course they are not binding in Canada; nor are they binding on courts in the United States.  But they purport to advise on proper conduct for the membership of that prestigious and influential association. I have reproduced Standard 4-4.6.<a name="_ftnref11"></a><a href="#_ftn11">[11]</a> Standard 4-4.6  Physical Evidence  <ol> <li>Defence counsel who receives a physical item under circumstances implicating a client in criminal conduct should disclose the location of or should deliver that item to law enforcement authorities only:  (1) if required by law or court order, or (2) as provided in paragraph (d).</li> <li>Unless required to disclose, defence counsel should return the item to the source form whom defence counsel received it, except as provided in paragraphs (c) and (d).  In returning the item to the source, defence counsel should advise the source of the legal c onsequences pertaining to possession or destruction of the item.  Defence counsel should also prepare a written record of these events for his or her file, but should not give the source a copy of such record.</li> <li>Defence counsel may receive the item for a reasonable period of time during which defence counsel: (1)intends to return it to the owner; (2) reasonably fears that return of the item to the source will result in destruction of the item; (3) reasonably fears that return of the item to the source will result in physical harm to anyone; (4) intends to test, examine, inspect, or use the item in any way as part of defence counsel’s representation of the client; or (5) cannot return it to the source.  If defence counsel tests or examines the item, he or she should thereafter return it to the source unless there is reason to believe that the evidence might be altered or destroyed or used to harm another or return is otherwise impossible.  If defence counsel retains the items, he or she should retain it in his or her law office in a manner that does not impede the lawful ability of  law enforcement authorities to obtain the item.</li> <li>If the item received is contraband, i.e., an item possession of which is in and of itself a crime such as narcotics, defence counsel may suggest that the client destroy it where there is no pending case or investigation relating to this evidence and where such destruction is clearly not in violation of any criminal statute.  If such destruction is not permitted by law or if in defence counsel’s judgment he or she cannot retain the item, whether or not it is contraband, in a way that does not pose an unreasonable risk of physical harm to anyone, defence counsel should disclose the location of or should deliver the item to law enforcement authorities.</li> <li>If defence counsel discloses the location of or delivers the item to law enforcement authorities under paragraphs (a) or (d), or to a third party under paragraph (c)(1), he or she should do so in the way best designed to protect the client’s interests.</li> </ol>  As one of can see, Stands 404.6(c) recommen2ds generally that defence counsel should return the item to the source from which they received it.  Of course, as Justice Gravely commented, in Mr. Murray’s situation, he was unable to return the videos to the house because he no longer had access to it.  He could not return them to Bernardo because Bernardo was in jail.  The American standard also accords with some of the comments of the eminent Canadian counsel on the panels to which I have referred, where the issues arising from possession of the proverbial “bloody shirts” and “smoking guns” were discussed. Accordingly, I suggest that it might not be inappropriate to advise clients in those circumstances:  “It is evidence that might convict you; if you give it to me, I may have to turn it over to the prosecution.  Take it away and keep it in your residence; if you destroy it, you may be guilty of a crime.” However, that sort of advice may create its own problems for the lawyer.  Some clients will not be concerned about a potential prosecution for attempt to obstruct justice, and will hide or destroy the gun or the shirt.  In addition, after giving such advice, a lawyer risks being accused of counseling the destruction of the item despite his or her protestations to the contrary.  That can happen to a lawyer in a case that is notorious, where there is great public and police pressure to find and punish the party who committed an egregious crime and where it is easy to blame the defence attorney for perceived failures in the resolution of the case. An example of how public pressure and outrage about the legitimate actions of a lawyer in a notorious case can lead to the prosecution of the lawyer may be seen in the New York State  case of People v. Belge.<a name="_ftnref12"></a><a href="#_ftn12">[12]</a>  In that case an attorney who was defending a person charged with murder was told by his client of three other killings he had committed, and was taken by the client to the scene where the body of one of the victims lay.  The lawyer took pictures of the area, and kept the information to himself.  He intended to use it at the client’s trial to demonstrate that the client was mentally ill.  During the trial, when the attorney’s knowledge of the other killings surfaced, there was a public outcry that the bodies had been allowed to remain at the scene of the killings while the attorney prepared and presented his client’s defence on the original murder charge.  The families of the victims were, perhaps understandably, angry and demanded that the lawyer be brought to account for the delinquent manner in which he hid from them and from authorities what had happened to their loved ones. As a result of the uproar, the attorney was charged under rather obscure New York statutes with failure to provide a decent burial for the dead, and failure to report deaths.  At trial, the attorney’s defence was that the information given to him about the other killings and the location of he body was covered by solicitor-client privilege, and the attorney was bound not to disclose it.  After suffering much anxiety and pain and expense, the attorney was acquitted at his trial on the ground that he had acted professionally in suppressing the information.  The acquittal was upheld by two appellate courts in New York State.  The trial judge said:<a name="_ftnref13"></a><a href="#_ftn13">[13]</a>  When the facts of the other homicides became public, as a result of the defendant’s testimony to substantiate his claim of insanity, “Members of the public were shocked at the apparent callousness of these lawyers, whose conduct was seen as typifying the unhealthy lack of concern of most lawyers with the public interest and with simple decency.”  A hue and cry went up from the press and other news media suggesting that the attorneys should be found guilty of such crimes as obstructions of justice or becoming an accomplice after the fact.  From a layman’s standpoint, this certainly was a logical conclusion.  I cite the case to demonstrate the consequences for defence counsel even when it is demonstrated that he or she acted professionally in a case which was notorious and where there was public pressure on the authorities to do something.  The attorney may become a scapegoat to public indignation (as I allege happened to ken Murray). To return to the American Bar Association Standard, it may have relevance to some of the other issues I have raised.  As I pointed out earlier, Justice Gravely, in his judgment, recognized the right of counsel in some circumstances to retain items of physical evidence for a reasonable time in order to test them, and he did refer to the American Bar Association Standard in that regard.  G. Arthur Martin’s comments as quoted above support this view.  However if counsel’s actions are questioned, it may be a an issue of fact in each case whether it was reasonable for her to retain an item of physical evidence for the purpose of testing it and, if so, whether the period of time for which the item was retained was reasonable.  And, I suggest, most defence counsel would not want to have the reasonableness of their behaviour tested later in a criminal court after they have been charged with attempt to obstruct justice.  As to the right of counsel to use the item of evidence for the defence, as Standard 4-4.6(c) implies, in high profile cases such as that of Ken Murray, the issue may arise as to the reasonableness and honesty of counsel’s belief that it could be used for the defence, with the result that he or she may face the same danger of criminal prosecution.  Since the Murray decision, counsel may have difficulty maintaining that they believe they have no obligation to disclose incriminating evidence.  And it should be noted that Justice Gravely, in his judgment, did not refer to the portion of Standard 4-4.6 relating to use of the evidence for the defence.  I reiterate, the standard is not binding on Canadian courts or on the Law society, although ne would expect it might have some persuasive authority. Perhaps as a result of the Murray decision, some lawyers will advise their clients that documents left with them may have to be turned over to the prosecution.  One may wonder whether with that knowledge clients wil want to entrust their counsel with their confidential files and, perhaps, with the true extend of their problems with the criminal law.  And if clients become inhibited in their disclosures to their legal advisers, will not the ability of counsel to prepare and defend their clients’ cases be similarly inhibited?  This is the essence of the criticism of the Olwell line of decisions by some American commentators. Therefore, one might ask, how should counsel guide themselves when faced with the problem of evidence that may be incriminating of their clients without placing themselves at risk of prosecution/  I suggest that if a serious issue arises in this area counsel would be wise to consult promptly with senior counsel in confidence for independent advice as to how to deal with the matter.  It would be prudent to maintain careful notes or dockets of the issue involved, counsel’s approach to the issue, and the independent advice received.  In major cases and notorious cases, counsel should consider placing the question before the Professional Conduct committee of the Law society for their direction, as Mr. Murray ultimately did.  The bona fide resort to the advice of other counsel or the Law Society may help insulate lawyers from the risks consequent from their actions. As was suggested by G. Arthur Martin years ago, it is apparent that there is a real need for the Law Society to consider rules for counsel’s guidance in this area in this province.  <a name="_ftnref14"></a><a href="#_ftn14">[14]</a>                  <hr style="width: 33%; height: 1px; text-align: left" /> <a name="_ftn1"></a><a href="#_ftnref1">[1]</a> This article is based on a paper delivered to the Hamilton Criminal Lawyers Association on November 2, 2000.  Mr. Cooper was counsel to Ken Murray in R. v. Murray (2000), 144 C.C.C. (3d) 289, 34 C.R. (5th) <a name="_ftn2"></a><a href="#_ftnref2">[2]</a> Law Society of Upper Canada, Special Lectures, 1969, Defending a Criminal Case: Problems in Ethics and Advocacy. <a name="_ftn3"></a><a href="#_ftnref3">[3]</a> Published (1970), 12 C.L.Q. 376. <a name="_ftn4"></a><a href="#_ftnref4">[4]</a> Supra, footdnote 1 <a name="_ftn5"></a><a href="#_ftnref5">[5]</a> Ibid, at p.312. <a name="_ftn6"></a><a href="#_ftnref6">[6]</a> 394 P.2d 681 (1964). <a name="_ftn7"></a><a href="#_ftnref7">[7]</a> Ibid, at pp.674-85. <a name="_ftn8"></a><a href="#_ftnref8">[8]</a> Ibid, at p.686. <a name="_ftn9"></a><a href="#_ftnref9">[9]</a> People v. Meredith, 631 P.2d 46 (1981). <a name="_ftn10"></a><a href="#_ftnref10">[10]</a> Morrell v. State, 575 P.2d 1200 (1978). <a name="_ftn11"></a><a href="#_ftnref11">[11]</a> American Bar Association, Standards for Criminal Justice, Prosecution Function and Defence Function, 3rd ed. (emphasis added). <a name="_ftn12"></a><a href="#_ftnref12">[12]</a> 372 N.Y.S. 2d 798 (1975), affd 376 N.Y.S. 2d 771 (1975), affd 390 N.Y.S. 2d 867 (1976). <a name="_ftn13"></a><a href="#_ftnref13">[13]</a> Ibid, at pp.801-802. <a name="_ftn14"></a><a href="#_ftnref14">[14]</a> After this address was delivered, the Law Society of Upper Canada established a special committee to examine the problem.  The committee prepared a draft new rule which generated some  controversy, and which was placed before the Benchers of the Law Society at a convocation in May 2002.  The Benchers did not debate the proposed new rule but referred it back to the special committee for a legal opinion as to whether lawyers who complied with the rule could expose themselves to prosecutions for attempt to obstruct justice.  Semble, as of February 2003, the opinion had not been finalized.

2009-11-06T12:17:27-05:00

Article Published by Canada Law Book in the Criminal Law Quarterly, Vol. 47, pg. 41 Author: <a target="_blank" href="/criminal-defence-lawyers/austin-cooper">Austin Cooper, Q.C.</a> About 45 years ago a man came into a lawyer’s office and retained him to defend him on a charge of capital murder. It was the middle of the night. The lawyer (who later became a judge) determined that there was indeed a warrant out for his client’s arrest for murder, and advised him that he must surrender to the police. the-ken-murray-case-defence-counsel-s-dilemma

2009-10-16T00:00:00-04:00

The Ken Murray Case: Defence Counsel's Dilemma

2009-11-25T10:51:04-05:00

1 Article published in Edward L. Greenspan, Q.C. ed., Counsel for the Defence(Toronto: Irwin Law, 2005) Author: <a target="_blank" href="/criminal-defence-lawyers/austin-cooper">Austin Cooper, Q.C.</a> Between January 11 and March 22, 1981, four infants who were patients in the cardiac ward at the Hospital for Sick Children in Toronto died as a result of the deliberate administration of overdoses of a heart drug called Digoxin. Although, at the outset, there was some speculation that "mercy killing" was the reason for the deaths, it soon became clear that there was no motive for the killings. In fact, some of the babies could have recovered from their illnesses and led reasonably normal lives. The usual reasons for one person killing another, such as matrimonial discord, jealousy, revenge, self-defence, drunkenness, or provocation, were all irrelevant. There was no apparent motive. Accordingly, these crimes were strange indeed, and, as the lawyer retained to defend the person charged, it appeared plan that the killer who snuffed out the lives of the babies had to be a strange person. Any normal, right-thinking, healthy person would not extinguish the lives of four helpless infants in their cribs for no apparent reason. It was therefore with some curiosity that I anticipated the first meeting with my client, Susan Nelles, at the Metro Detention Centre in March, 1981. What sort of creature would I see? The first thing that struck me on that cold Sunday afternoon in the little room assigned for lawyers to meet their clients was how small she was. She appeared barely five feet tall. Apart from that, she certainly was not typical of the young women I had seen within the confines of prisons. There was a freshness about her appearance and a polish about her manner that set her apart from other inmates I had met. As we sat at the table provided for us and discussed her pending application for bail, I noticed that she was clear eyed, reserved, polite, considerate, and above all, apparently quite sane; at least to my non-medical eye. Later, while interviewing the witnesses to be called at her application for bail before Mr. Justice Steele, I was impressed by the quality of her friends. Her best friend and confidante with whom she shared an apartment was Alison Woodbury, a law student and a person whose wholesome manner and integrity were immediately apparent. She is now a lawyer with a large firm.  The evidence she gave at the bail hearing was impressive and it reinforced my initial reaction to this case: it was highly unlikely that the strange person expected to have committed such senseless and bizarre crimes would have friendships with people of Alison Woodbury's quality. If one assumed that the person who had committed these unusual crimes had to be an aberrant personality; a twisted, warped individual; the staff in our office quickly concluded that Susan Nelles did not appear to fit the role. For that reason alone (and, later, there were others), we began to speculate that perhaps the police had arrested the wrong person. To test our thesis, we decided to have her examined by a psychiatrist of some eminence and by a senior psychologist on the staff of a major hospital. We wanted professionals whose qualifications, expertise, and impartiality would be unquestioned, so we turned to a psychiatrist and a psychologist who, although perhaps not well known around the courts, were the chiefs of their departments at teaching hospitals in Toronto. The chosen psychologist was Dr. Leonard Goldsmith at the Toronto General Hospital. He administered a battery of psychological tests to Ms. Nelles and gave us a written report that concluded she was the most well-adjusted person it had ever been his privilege to examine. We felt good about that. We also arranged to have her examined by Dr. Stanley Greben, who was chief of the medical staff and head of the Department of Psychiatry at Mount Sinai Hospital, in Toronto, a former present of the Canadian Psychiatric Association, and a professor of psychiatry at the University of Toronto. He had an impressive background of scholarship and experience and had written extensively in his specialty. In his written report, Dr. Greben concluded that Susan Nelles was sane, socially well adjusted, and a person to whom the killing of other humans, particularly infants, was an abhorrent concept. She was a nurse, and her instincts and outlook were focused on comforting and healing, not killing. These reports further confirmed our first impression that Miss Nelles did not fit the role cast for her by the prosecution. She simply was not the type of person who could be expected to murder helpless infants for no apparent reason. What did the evidence show? Did it bear out our thesis that the wrong person was accused of four murders of the first degree? What contact, if any, could the prosecution prove Susan Nelles had with Janice Estrella, who died on January 11, 1081; Kevin Pacsai, whose death occurred on March 11; Alana Miller, who died on March 21; and Justin Cook, who died a day later on March 22? Before the preliminary hearing, we conducted a detailed analysis of the hospital records. It demonstrated that Miss Nelles was one of the five-member nursing team on ward 4A, the team on duty when all four children died. Further, she had been assigned to care for babies Pacsai, Miller and Cook during the long night shifts when each of them died; she had access to each of those three children during the seven to eight hours before their deaths. However, the records also showed that at various times during those shifts other nurses had relieved her and, therefore, had access to those three infants. Our analysis of the nursing notes and hospital records relative to the fourth child, Janice Estrella, showed that Susan Nelles was not on duty during the night shift for the seven or eight hours before her death. We searched the records for the preceding twelve-hour day shift and found that although Miss Nelles was on duty as part of the nursing team, two other nurses had been assigned to care for the baby under circumstances of constant nursing care, meaning one of those two nurses always had to be present and tending to the child. Whenever one nurse took a break for coffee or lunch or to use the washroom, the other had to be there. In other words, the records indicated that Susan Nelles had no contact with Janice Estrella during the twenty-hour period preceding her death. Accordingly, our preliminary analysis of hospital and nursing records tended to confirm our impression that perhaps the police had the wrong person. We began to think that the prosecution was in trouble, and we had a reasonable chance of having the charges tossed out at the preliminary hearing. We hoped the oral evidence at the hearing would bear that out. The preliminary hearing commenced on January 4, 1982, before Judge Vanek of the Provincial Court. As the evidence unfolded relative to Janice Estrella, it was established that the child, who had been prescribed Digoxin, had fatal levels of the drug in her blood at the time of her death. It was confirmed that Susan Nelles was off duty during the night shift when the baby died, that the two nurses assigned to the baby on the preceding twelve-hour day shift had watched her continuously, and that Susan Nelles had not been near her. We felt that the prosecution was truly in deep water. We also began to wonder who had killed baby Estrella. It was never determined who administered the fatal dose of Digoxin to Janice Estrella, but it became clear that it could not have been Susan Nelles. She simply had no access to the child in the twenty hours during which the fatal dose of Digoxin had been administered. From the outset and throughout the proceedings we contended that the same person had to be responsible for all four killings. The crimes all followed the same pattern: <ul> <li style="text-align: justify;">all involved infants on the cardiology ward’</li> <li style="text-align: justify;">all were killed by Digoxin overdose;</li> <li style="text-align: justify;">there was no motive for any of the murders;</li> <li style="text-align: justify;">all died early in the morning and while members of the same nursing team were on duty;</li> <li style="text-align: justify;">all had to have been killed by an unusual assailant;</li> <li style="text-align: justify;">one could not expect, in the light of common human experience, that people operating independently of each other could have had the strange need to snuff out infants in this way; and</li> <li style="text-align: justify;">there was absolutely no evidence of a conspiracy among two or more persons to murder in this manner.</li> </ul> Ultimately, the court accepted this thesis, as did the Crown in its argument. We felt that the facts proved in relation to baby Estrella should put an end to the case against Susan Nelles. However, the prosecution turned that argument around and submitted that, because the crimes could have been committed by only one person, if there was some inference that Susan Nelles had access to and perhaps killed Miller, Pacsai, and Cook, the Court could infer somehow she had obtained access to Estrella and murdered that baby too. Fortunately, a month or so into the preliminary hearing the defence received further support when we learned that, following an order of the attorney general, the body of a firth infant, named Stephanie Lombardo, had been exhumed. Baby Lombardo had been a patient on the cardiac ward for five days during the latter part of December 1980. She died suddenly on the ward while recovering from an apparently successful heart operation. Lombardo had not been prescribed Digoxin, yet, when her body was exhumed in December 1981, a year after her death, an analysis demonstrated that her tissues were laced with Digoxin. The expert evidence confirmed that baby Lombardo very likely died as a result of a Digoxin overdose. The hospital employment records and the nursing records for December 1980 showed that Susan Nelles was on holiday during the whole period in which Lombardo was in the hospital. This fact was confirmed at the preliminary hearing by the oral evidence, we felt that the case against Susan Nelles had all but disintegrated and that we had an innocent client. Ultimately, Judge Vanek agreed in his ruling on May 21, 1982, when he gave his reason for discharging Susan Nelles: Since admittedly the same person must have killed all four children, the evidence relating to Estrella is positive disproof that [Nelles] is the person who poisoned Cook, Pacsai and Miller. Moreover, the Crown's theory that Susan Nelles is the person who killed all four babies is inconsistent with the circumstances surrounding the death of Stephanie Lombardo. During this enormously complicated but immensely interesting case, we faced several tactical and evidentiary problems. Here is now we tried to deal with them. We realized from the outset that the legal test by which the judge presiding at the preliminary hearing had to guide himself in determining whether to send the case to trial was a narrow one. He did not have to be convinced beyond a reasonable doubt before he could commit for trial. The test that Judge Vanek was required to apply was enunciated by the Supreme Court of Canada in, U.S.A. v. Sheppard was there evidence on which a reasonable jury, properly instructed, could convict the accused? During the three-and-a-half-month preliminary hearing, we had to be sensitive as to whether some evidence might be led against Susan Nelles on which a reasonable jury could convict. We realized, on the authority ofSheppard, it did not have to be very much evidence for Judge Vanek to conclude that the case ought to be sent to trial. Some areas of the evidence caused us concern in this regard, such as the evidence of Dr. Rodney Fowler. He was the staff cardiologist and chief of the cardiac ward during March 1981, and he testified that he saw Miss Nelles in the early morning of March 22, 1981, shortly after Justin Cook had died. Cook was the last of the four children to expire. As Dr. Fowler was leaving the hospital, he saw Miss Nelles sitting at one of the desks in the nursing station apparently writing up the final report in Justin Cook's medical chart. (She was the nurse assigned to that child during the evening shift on which he died.) Dr. Fowler gave evidence that he knew she had been previously involved with baby Pacsai and had given the prescribed Digoxin to that child before his death. By that time, it had been confirmed that Pacsai had died of a Digoxin overdose because an inquest had been made into the death. Dr. Fowler was anxious to see what Miss Nelles looked like in the early morning after Cook's death. He said he glanced in her direction and saw a very strange expression on her face, one showing no sign of grief. He thought it was unusual for her to have this appearance after such a terrible thing had happened. We appreciated that this evidence was tenuous but felt it could prove troublesome and might be the straw that would convince the judge to let a jury decide the case in a trial. As a result, we prepared Dr. Fowler's cross-examination very carefully. The cross-examination proceeded this way: <ul> <li style="text-align: justify;">Now, as to Susan Nelles, was she a close friend of yours?</li> <li style="text-align: justify;">No.</li> <li style="text-align: justify;">Did you ever visit her house?</li> <li style="text-align: justify;">Never.</li> <li style="text-align: justify;">Or her apartment?</li> <li style="text-align: justify;">Never.</li> <li style="text-align: justify;">Has she ever visited your house?</li> <li style="text-align: justify;">Never.</li> <li style="text-align: justify;">I think you said you knew her for one year?</li> <li style="text-align: justify;">Just because she was on the ward.</li> <li style="text-align: justify;">On the ward?</li> <li style="text-align: justify;">Her brother is a resident on the ward and I knew her father.</li> <li style="text-align: justify;">Have you ever had lunch with her?</li> <li style="text-align: justify;">Never.</li> <li style="text-align: justify;">Or coffee?</li> <li style="text-align: justify;">Never.</li> <li style="text-align: justify;">Or dinner?</li> <li style="text-align: justify;">Never.</li> <li style="text-align: justify;">Ever had a sort of meaningful conversation with her about anything other than whether a baby has or hasn't had its medication or has turned blue?</li> <li style="text-align: justify;">Never.</li> <li style="text-align: justify;">Okay, so you never worked a twelve-hour shift in her company?</li> <li style="text-align: justify;">Never.</li> <li style="text-align: justify;">Did you ever see her since her arrest on March 25 other than around the court or whatever?</li> <li style="text-align: justify;">No, I've never seen her since then.</li> <li style="text-align: justify;">Did you ever see her grieving after a relative had died?</li> <li style="text-align: justify;">I have never seen her grieving because I don't know her. I've never seen.</li> <li style="text-align: justify;">Did you ever see her upset, ever?</li> <li style="text-align: justify;">Never.</li> <li style="text-align: justify;">Ever see her cry?</li> <li style="text-align: justify;">No.</li> <li style="text-align: justify;">Did you ever see her angry?</li> <li style="text-align: justify;">No.</li> <li style="text-align: justify;">Did you ever see her depressed or elated?</li> <li style="text-align: justify;">No.</li> <li style="text-align: justify;">Did you ever see her sad or shocked?</li> <li style="text-align: justify;">No.</li> <li style="text-align: justify;">Well, I'm going to suggest that you really don't know much about the lady's emotional range. You'll agree with that?</li> <li style="text-align: justify;">I've seen many nurses who are looking after sick patients, and her reaction, again, was very unusual.</li> <li style="text-align: justify;">Well, I didn't ask you that. I asked you, I suggest that you don't know much about her emotional range?</li> <li style="text-align: justify;">No.</li> <li style="text-align: justify;">You just don't know much about it?</li> <li style="text-align: justify;">No, except that it's unusual, under the circumstances, for a person to have that reaction.</li> <li style="text-align: justify;">Okay. Well, a number of witnesses here have described Susan Nelles as being a cheerful person. Do you know her well enough to even know about that?</li> <li style="text-align: justify;">No.</li> <li style="text-align: justify;">She's easy to get along with; Do you know her well enough to even know that?</li> <li style="text-align: justify;">No. I don't work with her.</li> <li style="text-align: justify;">You don't work with her. She's conscientious and eager. You don't know that, I guess?</li> <li style="text-align: justify;">No, I don't know that. I presume that she does her job well or she wouldn't have been working on the ward.</li> <li style="text-align: justify;">Do you think those people, whether nurses or doctors, who have worked on shift with her, would be in a better position than you to describe her emotional states. Someone who knew her well and worked with her on shift.  Do you think?</li> <li style="text-align: justify;">I'm not talking about her emotional state, I'm talking about her appearance under a situation, and I explained what she looked like. I don't know anything about her reactions, her emotional reactions.</li> <li style="text-align: justify;">Well, my question was, do you think those who have worked on shift with her over a period of weeks or a year, twelve hours a day, would be in a better position than you to describe Susan Nelles' emotional state?</li> <li style="text-align: justify;">Well, I'm not sure about that.</li> <li style="text-align: justify;">You're not sure about that.</li> <li style="text-align: justify;">Because they haven't seen her in exactly the same situation that I saw.</li> <li style="text-align: justify;">Oh, I see. Well, we've had some witnesses here who spoke about that. There was a Mrs. Ober who gave evidence in this courtroom, and I've got it as exactly as I can that "After Justin Cook's death, Susan Nelles looked tired and strained and pretty upset. Is that the type of reaction you would have expected from a nurse after a death?</li> <li style="text-align: justify;">Yes.</li> <li style="text-align: justify;">We have Mr. Cook himself, Justin Cook's father, who gave evidence here just a couple of weeks ago. He said, " There were tears in Susan Nelles' eyes and she said she was sorry. Is that the type of reaction you would have expected from a nurse after a death of an infant that she was looking after.</li> <li style="text-align: justify;">Yes, that's what I would have expected.</li> <li style="text-align: justify;">You would have expected that. Another nurse, Susan Reaper, said in this courtroom under oath, after the death of Justin Cook "Susan Nelles was upset. She was smoking a cigarette." Is that the type of reaction you would have expected?</li> <li style="text-align: justify;">I'm not sure. I don't know.</li> <li style="text-align: justify;">Mrs. Lyons, Evonne Lyons, one of the nurses on 4B, gave evidence in this courtroom that "Susan Nelles, after the death of Justin Cook, seemed to be in shock". Is that the type of reaction you might expect to see after the death of a child who you were looking after?</li> <li style="text-align: justify;">I don't know what that term means, I'm not sure.</li> <li style="text-align: justify;">Well, you said she looked strange. Do you know what that term means?</li> <li style="text-align: justify;">Yes.</li> <li style="text-align: justify;">Phyllis Trayner, who is the same lady Mr. McGee asked you about and whom you said you knew by sight anyway, the head nurse?</li> <li style="text-align: justify;">I just know her by sight, just the way I know Miss Nelles.</li> <li style="text-align: justify;">She swore in this courtroom, just a couple of weeks ago, that, "After Justin Cook's death, Susan Nelles was very upset. There were tears in her eyes." That's the type of reaction you would have expected?</li> <li style="text-align: justify;">That's what I would have expected, but there was no evidence of that at all when I witnessed her.</li> <li style="text-align: justify;">When you witnessed her. Bertha Bell, a nurse on 4B swore in this courtroom some short time ago said that "After the death of Justin Cook, Susan Nelles was upset. She was very quiet. I know Susan Nelles well, I know when she was upset. That's the sort of thing you'd expect after the death of a child you were looking after?</li> <li style="text-align: justify;">Yes.</li> <li style="text-align: justify;">And Mrs. Whittingham, who was also on duty, I believe on 4B, said, "Everybody was upset and feeling badly after Justin Cook's death, including Susan Nelles." Again, that's how you'd expect the nurses to react?</li> <li style="text-align: justify;">Yes.</li> <li style="text-align: justify;">Right. Now you swore that you didn't see Susan Nelles, according to my notes, until you were leaving the ward?</li> <li style="text-align: justify;">That's correct.</li> <li style="text-align: justify;">After the death of Justin Cook?</li> <li style="text-align: justify;">Yes.</li> <li style="text-align: justify;">So you didn't see her during the arrest or right afterwards, did you?</li> <li style="text-align: justify;">No.</li> <li style="text-align: justify;">You might not have had the same opportunity as these other people whose evidence I've outlined for you?</li> <li style="text-align: justify;">Yes.</li> <li style="text-align: justify;">Right. You took a glance at her, I think you said?</li> <li style="text-align: justify;">Yes.</li> <li style="text-align: justify;">She was seated at a desk, writing out a description of what happened?</li> <li style="text-align: justify;">Well, I don’t know what she was writing, but she was writing something.</li> <li style="text-align: justify;">I thought you said she was writing a report?</li> <li style="text-align: justify;">No, I don't lnow what she was doing. I presume it was a description of the final events, but she was writing something at the desk.</li> <li style="text-align: justify;">Well, it would be her duty to write out such a description, wouldn't it?</li> <li style="text-align: justify;">Yes.</li> <li style="text-align: justify;">Yes. She was looking down at a piece of paper while she wrote?</li> <li style="text-align: justify;">Yes.</li> <li style="text-align: justify;">Apparently concentrating?</li> <li style="text-align: justify;">Yes.</li> <li style="text-align: justify;">And you felt from your glance at her as you left the ward that her expression was strange?</li> <li style="text-align: justify;">Yes, it was not in keeping with a person who had just had a patent die under her care.</li> <li style="text-align: justify;">So it was strange in that there was no appearance of grief?</li> <li style="text-align: justify;">Of grief, right.</li> <li style="text-align: justify;">That's why it was strange, is that correct?</li> <li style="text-align: justify;">Correct.</li> <li style="text-align: justify;">Are you really in any position to tell this Court how she was really feeling at that time. Are you?</li> <li style="text-align: justify;">All I can do is tell the Court what I saw.</li> <li style="text-align: justify;">What you saw. You have no idea what she was feeling, do you?</li> <li style="text-align: justify;">That's an inference that you'll have to make yourself.</li> <li style="text-align: justify;">Well, you just don't know, do you, how she was feeling?</li> <li style="text-align: justify;">No, I just know what she looked like, and I've seen many, many people who were in that situation who don't appear like she did. In other words, she had no signs of grief.</li> <li style="text-align: justify;">She had no signs of grief and that was strange to you?</li> <li style="text-align: justify;">Yes.</li> <li style="text-align: justify;">Right. But you don't know how she was feeling. I mean, are you prepared to agree with that or not?</li> <li style="text-align: justify;">Yes, I can't say that.</li> <li style="text-align: justify;">You can't say. And you certainly don't know how she was feeling during the arrest or when the baby was pronounced dead or immediately afterwards when talking to her nurses on the floor, do you?</li> <li style="text-align: justify;">No. I didn't speak to her at all during that period.</li> </ul> Judge Vanek concluded his reasons for discharging Ms. Nelles with these words: "I am unable to find any evidence of guilt from what a doctor thought from a passing glance was a 'strange expression'." It was also an area of concern for us that, apparently after the arrest of Ms. Nelles on March 25, 1981, there were no deaths of infants that could be attributed to a Digoxin overdose. We were concerned that Judge Vanek might conclude that this fact led to an inference of complicity by Miss Nelles, enough to compel him to send the case on for trial. However, we were able to elicit some facts in cross-examination that we felt were able to neutralize any such inference. First, after the death of Justin Cook, all Digoxin was locked up in a narcotics cabinet. Before that, it had been readily available to anyone who sought it. As well, after Cook's death, all Digoxin had to be signed for by two nurses on an inventory sheet, and the inventory control was tightened considerably. Since Digoxin was a prescription drug, it became very difficult for any person to obtain access to it, certainly without considerable risk of exposure. Second, we argued that, with the arrest of Miss Nelles, any further killings by Digoxin would attract attention to the real offender still at large. That person might be expected to keep a low profile. Third, the evidence revealed some bizarre happenings at the hospital after the arrest of Susan Nelles. They tended to support our contention that someone with a twisted personality, the type of person who might have caused the senseless killings charged to Susan Nelles, might still be on the loose in the ward. We were able to adduce through cross-examination of members of the nursing staff that a series of ominous and threatening telephone calls had been made to nurses and members of the hospital staff and their families after the arrest of my client. Someone, a female, who was familiar with the deaths of the babies and with the nurses on duty, was calling people at the hospital for no apparent reason and was making death threats to two particular nurses on the ward. In addition, we were able to show that a series of strange marks in lipstick was made on the locker doors of the same two nurses on the cardiac ward, on the door of the apartment of one of them, and on the rear window of a car. We established through alibi evidence that Susan Nelles was unable to have made some of those telephone calls, for example, she was on an airplane to Vancouver when one of them was made. She was out of Toronto when some of the lipstick markings were placed, a bridesmaid at a wedding in Ottawa, for instance, when one of the marks had to have been drawn. Another bizarre incident occurred at the hospital after the arrest of Miss Nelles when two nurses found Propanolol, another heart drug, in the food they had brought to the hospital from their homes. During a 2:00 morning lunch break, one nurse found the drug in her soup, which was in a Tupperware container, while the other nurse found the drug sprinkled in her salad in a similar plastic container. We were able to establish through cross-examination of most of the witnesses called for the Crown that Susan Nelles had not been in or near the hospital since the day of her arrest. We were therefore able to argue that some human being with an aberrant personality was loose both in the hospital and outside. A disturbed person was still operating, undeterred by Nelle's arrest. We argued that this evidence was consistent with the fact that the real killer had not been apprehended. Judge Vanek concluded on this point: <blockquote> Any inference of Nelles' guilt from the fact that there was a decrease in the number or deaths on Wards 4A and 4B after her arrest is offset by equally valid inferences of innocence for the reasons previously stated [i.e., the locking up of all Digoxin and the realization by the killer that he/she might attract attention by further killings] and the long list of unusual incidents and mysterious happenings at the hospital. </blockquote> After we learned that the exhumation of baby Lombardo had confirmed that her body was loaded with Digoxin, although not prescribed, and we confirmed that Susan Nelles was on holiday for the five days that Lombardo was in hospital, we could see that the prosecution was demoralized. Their case was disintegrating. We met with the prosecution and police at the El Toro Steak House in Toronto for dinner. We gave them copies of our psychiatric and psychological reports that indicated Susan Nelles was sane and well adjusted. We suggested that the prosecution be stopped. We told the prosecution that we intended to file those reports or call the doctors who wrote them at the preliminary hearing to show that Nelles was not an aberrant personality. We felt they would be potent evidence at the hearing. The Crown responded by requesting an examination of our client by a psychiatrist. We said we would allow it, but we wanted the examination to be by doctors who were not usually consultants to the Crown at that time. We asked for doctors who were staff at teaching hospitals in Toronto and professors or associate professors of psychiatry at the University of Toronto. We gave them a list of seven or eight names of suggested doctors who had those qualifications. However, the Crown would not accept any of the doctors on the list, so we were never able to agree on a doctor to conduct the examination. In any event, the Crown was not prepared to stop the prosecution, even if a psychiatric report obtained by them confirmed that Susan was sane and well adjusted. In the end, we decided not to file our psychiatric and psychological reports. We were concerned that an adverse inference might be drawn against us because we were unwilling to permit a doctor selected by the Crown to see her. We had in mind the case of R. v. Sweeney, a murder case in which the defence was insanity.  The defence had psychiatric reports, and the Crown had asked for a psychiatric examination of the accused.  The defence agreed on the condition that the Crown psychiatrists confer with the defence psychiatrist before examining the accused.  This offer was declined by the Crown, so no examination was done.  At the trial, however, the defence proceeded to call its psychiatric evidence in support of the defence of insanity.  The Crown then led evidence of the refusal of the defence to permit their doctors to examine the accused.  The accused was convicted and subsequently appealed to the Ontario Court of Appeal.  That court held that the evidence of the refusal of the defence to permit the psychiatric examination was relevant and admissible:  it implied that the defence of insanity was either contrived or weak.  Mr. Justice Zuber said in the decision:  <blockquote> It is, after all, the accused who has raised the defence and made his sanity an issue. Can it be said that he has the exclusive right to call psychiatric evidence and also to deny the prosecution even the ability to explain why the Crown has called no evidence to meet this issue? In any view, the rational conclusion in this case is that the impugned evidence was properly admitted as a fact to be weighed in assessing the merit of the defence. </blockquote> In light of this decision, we decided to keep our psychiatric reports in our file. We knew our case was very good, and we did not want to provide the Crown with an iota of an inference that the judge might consider evidence within the rule in U.S.A. v. Sheppard. At about the same time, the prosecution requested a lie detector examination of Susan Nelles. We were still hoping they would withdraw the charges. We wanted to convince them to do so, but we had doubts about accuracy of the lie detector. Eventually we agreed to permit her to undergo a lie detector examination on two conditions.  First, if the results were negative, those results could be filed on consent before Judge Vanek.; They would provide the final nail in the coffin that the Crown's case had become. Second, if the results were positive (i.e., the machine was in error), no reference could be made to that fact at the preliminary hearing.  The prosecution refused to accept our conditions, and no lie detector test was administered. In a long judgment on May 21, 1982, Judge Vanek found that the circumstantial evidence tendered against Susan Nelles was not sufficient to meet the test laid down in U.S.A. v. Sheppard and that she should be discharged on all counts.  In his reasons, the judge went further and, in effect, exonerated her from all complicity in the murders by stating, "There's evidence that points in a different direction." Subsequently, Mr. Justice Grange, after a lengthy intensive public inquiry, confirmed that Susan Nelles was indeed innocent and suggested that the Province of Ontario pay her compensation. Overall, I found the case a fascinating one because of the unusual and sometimes bizarre facts we had to deal with, the sensitive tactical decisions we had to make, and the daily courtroom drama in which I was involved.

2009-11-06T13:20:05-05:00

Article published in Edward L. Greenspan, Q.C. ed., Counsel for the Defence(Toronto: Irwin Law, 2005) Author: <a target="_blank" href="/criminal-defence-lawyers/austin-cooper">Austin Cooper, Q.C.</a> Between January 11 and March 22, 1981, four infants who were patients in the cardiac ward at the Hospital for sick Children in Toronto died as a result of the deliberate administration of overdoses of a heart drug called Digoxin the-defence-of-innocence-1990

2009-10-09T00:00:00-04:00

The Defence of Innocence 1990

2009-11-25T13:41:50-05:00

1 Paper Presented at Federation of Law Societies National Criminal Law Program Victoria, British Columbia July, 2009, SECTION 6.2 Author: <a target="_blank" href="/lawyers/mark-sandler">Mark J. Sandler</a> Introduction It is well recognized that inaccurate eyewitness identification evidence is a systemic cause - perhaps the leading cause - of wrongful convictions. Eyewitnesses frequently "get it wrong." This reflects not only the inherent difficulties in identifying people, particularly strangers, but how easily identifications can be tainted through flawed processes and become the product of suggestibility or contamination. Even in the absence of investigative misconduct (deliberate or accidental), witnesses' own expectations and desires may motivate them to too readily identify someone as the perpetrator. As Dr. Rod Lindsay, a leading authority on eyewitness testimony has stated, "[t]he combination of witness desire to please police (note the Morin case), expectation that the police have arrested the guilty party, and desire to feel safe or to have the guilty party punished are an ideal combination for priming witnesses to choose someone from a line-up.<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a1">[1]</a> The reference to the Morin case is to the wrongful conviction of Guy Paul Morin for the murder of his young neighbour in Queensville, Ontario. The public inquiry that followed his exoneration revealed, among other things, that certain Crown witnesses, including forensic experts, aligned themselves psychologically to the police investigators or the prosecution; one civilian witness felt "part of the prosecution team."<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a2">[2]</a> Of course, the inherent difficulties in accurately identifying perpetrators, or even the over-readiness to identify someone, need not translate into wrongful convictions. After all, triers of fact can choose to disregard eyewitness testimony. However, the disturbing number of proven instances in which triers of fact have acted upon mistaken identifications may be explained, in part, by the fact that eyewitnesses are, for the most part, honest and well-intentioned. Their credibility (as opposed to theirreliability) is often not in issue. It is more challenging (particularly for jurors) to discard testimony which is credible, although unreliable. As well, this testimony is often delivered with a high level of confidence, including expressions of certainty. Even with cautionary instructions, jurors may not fully appreciate the disconnect between confidence and accuracy. Indeed, studies suggest that jurors place undue reliance on eyewitness identification evidence in comparison to other types of evidence.<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a3">[3]</a> It is well arguable that judges, given the notoriety of the frailties of eyewitness testimony in the legal community and education directed to that issue, better appreciate the dangers associated with this evidence than jurors do; hence, the inclination of experienced defence counsel - all other factors being equal - to favour judge alone trials in prosecutions highly dependent upon eyewitness identifications. That being said, eyewitness identification continues to figure prominently in both jury and non-jury criminal cases. This paper briefly examines several of the legal issues surrounding eyewitness identification evidence. It is beyond the scope of this paper to address other forms of identification evidence although some raise similar issues. The Need for Special Caution It is settled law that trial judges must specially caution juries as to the dangers associated with eyewitness identification evidence. Watt's Manual of Criminal Jury Instructions recommends final jury instructions that include:<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a4">[4]</a> The case against (NOA)(or, the persons charged) depends entirely, or to a large extent, on eyewitness testimony. You must be very cautious about relying on eyewitness testimony to find (NOA) (or, anyone) guilty of any criminal offence [or the offence(s)] charged. In the past, there have been miscarriages of justice, persons have been wrongly convicted, because eyewitnesses have made mistakes in identifying the person(s) whom they saw committing a crime. Eyewitness testimony is an expression by a witness of (his/her)belief or impression. It is quite possible for an honest witness to make a mistake in identification. Honest people do make mistakes. An apparently convincing witness can be mistaken. So can a number of apparently convincing witnesses. When you decide how much or little to believe of or rely upon this evidence, everything that I told you earlier about assessing evidence applies to eyewitnesses. In addition, you should keep in mind several factors that relate specifically to the eyewitness(es) and (his/her/their)identification of(NOA)(or, the persons charged) as the person(s) who committed the offence(s) charged. The model instruction then recommends that the judge address at least three categories of evidence: the circumstances in which the witness made his/her observations; the description(s) given by the witness after he/she made the observations; and the circumstances of the witness's identification of the accused as the person whom he/she saw. For each category, the judge is to outline the kinds of questions that the jurors should consider, and review the relevant evidence pertaining to that category. For example, in relation to the circumstances in which the witness made his/her observations, the model instructions include: The circumstances in which the witness made his/her observations <ul> <li style="text-align: justify;">Did the witness know the person before s/he saw him/her at the time?</li> <li style="text-align: justify;">Had the witness seen the person on a prior occasion?</li> <li style="text-align: justify;">Howlong did the witness watch the person s/he says is the accused?</li> <li style="text-align: justify;">How good or bad was the visibility?</li> <li style="text-align: justify;">Was there anything that prevented or hindered a clear view?</li> <li style="text-align: justify;">How far apart were the witness and the person whom s/he saw?</li> <li style="text-align: justify;">How good was the lighting?</li> <li style="text-align: justify;">Did anything distract the witness' attention at the time s/he made the observations?</li> </ul> (Review relevant evidence about circumstances.) The kinds of questions will, of course, vary depending on the individual case. The model instructions do explain in general terms why the special caution is needed, reinforced by recognition of the role that mistaken identifications have played in past miscarriages of justice. Despite that commendable language, scientists working in this area question the efficacy of jury instructions generally in preventing jurors from unduly relying on eyewitness testimony. This point is revisited below. The reasons of trial judges, sitting without a jury, should similarly articulate the need for special caution in approaching this testimony. Failure to do so may result in appellate reversal. Where the witness has expressed certainty about the identification made, the jury should, in most cases, also be instructed about the dubious relationship between the certainty of a witness's eyewitness identification and its accuracy.<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a5">[5]</a> Again, trial judges sitting without a jury should instruct themselves in similar terms.<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a6">[6]</a> It is generally inadequate for jury instructions to simply recite a "boilerplate" caution surrounding eyewitness identification evidence without focusing on its "weaknesses" or the specific features of the evidence that invite concern or scrutiny. As stated by the Ontario Court of Appeal in R. v. Baltovich, "the need for a direction warning the jury of any specific weaknesses [in the identification evidence] has long been recognized."<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a7">[7] </a> Similarly, a self-caution as to the inherent dangers of eyewitness identification may not immunize a trial judge's reasons from appellate reversal if unaccompanied by some articulation of the specific features of the case that invite concern and how they are resolved. Circumstances that Invite Caution or Scrutiny Features of the evidence that invite concern or scrutiny may arise in a variety of ways. The witness may have made his/her observations under circumstances that make any subsequent identification less reliable. On the other hand, the external conditions under which the observations were made might have been ideal, but the witness suffers from his/her own deficiencies which undermine his/her ability to observe, accurately recall or communicate what was seen. Equally important, subsequent flawed identification processes, suggestibility or contamination may seriously, if not fatally, undermine the reliability of any identification that has been made. Here is a non-exhaustive list of features of evidence drawn from the jurisprudence that might figure prominently in questioning the accuracy of eyewitness identification: <ul> <li style="text-align: justify;">Brevity of observation.</li> <li style="text-align: justify;">Lighting or environmental conditions when observations are made.</li> <li style="text-align: justify;">Distance between the witness and the perpetrator.</li> <li style="text-align: justify;">The fact that the perpetrator and/or the witness were moving during the observation period.</li> <li style="text-align: justify;">The length of time between observation and the subsequent identification or description of the events by the witness.</li> <li style="text-align: justify;">The perpetrator was a stranger.</li> <li style="text-align: justify;">The lack of significance of the events to the witness when observed.</li> <li style="text-align: justify;">The witness's shock or distress or impairment due to alcohol or drugs.</li> <li style="text-align: justify;">The witness's vantage point (eg obstructed or side profile).</li> <li style="text-align: justify;">The witness's poor eyesight.</li> <li style="text-align: justify;">The witness's focus (eg. on a gun rather than the perpetrator's face).</li> <li style="text-align: justify;">The lack of distinctive features of the perpetrator or his/her clothing.</li> <li style="text-align: justify;">Inability in the earliest description of the perpetrator to recall any detail or truly distinguishing features.</li> <li style="text-align: justify;">A description of the perpetrator contains features not shared by the accused.</li> <li style="text-align: justify;">A description of the perpetrator does not contain prominent features of the accused that would be expected to be seen.</li> <li style="text-align: justify;">Significant changes in the descriptions of the perpetrator or "improvements" in descriptions through time.</li> <li style="text-align: justify;">An earlier identification of someone else as the perpetrator.</li> <li style="text-align: justify;">Information communicated to the witness prior to a line-up<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a8">[8]</a> that creates the expectation that the perpetrator is known to the police and is in the line-up (or the existence of that expectation despite what was or was not communicated).</li> <li style="text-align: justify;">Information communicated to the witness prior to a line-up that promotes the importance of making a positive identification.</li> <li style="text-align: justify;">Involvement of the investigating officer or others in a way that consciously or subconsciously singles out the suspect.</li> <li style="text-align: justify;">The witness's motivation to make a positive identification:(eg. removing a criminal from the streets, desire to please the investigators).</li> <li style="text-align: justify;">Poor identification processes: show-ups, or a simultaneous display of multiple photographs, rather than a sequential photographic display.</li> <li style="text-align: justify;">Photographs that highlight the suspect or predispose the witness to select him or her.</li> <li style="text-align: justify;">Expressed limitations or qualifications upon the identification ("I'm not positive or sure").</li> <li style="text-align: justify;">Contamination as between eyewitnesses or conversely, significant discrepancies as between eyewitness's descriptions.</li> <li style="text-align: justify;">Witnesses observing the suspect's image in media accounts, at the police station or otherwise before a line-up.</li> <li style="text-align: justify;">Reinforcement or affirmation (deliberate or subconscious) of the witness's selection of the suspect once made, as affecting the witness's subsequent confidence or certainty in the identification.</li> <li style="text-align: justify;">Disagreement or disappointment with the witness's selection of someone other than the suspect, as affecting a subsequent identification.</li> <li style="text-align: justify;">A validly conducted identification that follows an earlier tainted or flawed identification process.<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a9">[9]</a></li> <li style="text-align: justify;">Reliance on an in-dock identification.<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a10">[10]</a></li> </ul> All of the above potentially undermine accurate identifications. This proposition is largely, if not entirely, uncontroversial. The challenge is to recognize the existence of these circumstances and determine how they affect the overall assessment of the identification that has taken place. To take an obvious example,no one reasonably disputes that the reliability of an identification is adversely affected by telling a witness in advance that the perpetrator is definitely present in the line-up. Jurors must be alerted to the existence and significance of that problem. Judges sitting without a jury must address this weakness. Indeed, such evidence may contribute to an appellate court's determination that a conviction based on such a flawed identification is unreasonable and unsupported by the evidence. The more interesting issue arises where controversy may exist as to whether certain identification processes make an identification less reliable or as to whether the particular type of identification (for example the cross-racial identification) is inherently less reliable. This invites consideration of how, if at all, the trier of fact is to resolve that issue: through judicial notice, reliance on literature or expert testimony. Admissibility of Expert Testimony In R. v. McIntosh<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a11">[11]</a> the Ontario Court of Appeal considered whether the trial judge erred in refusing to admit defence evidence from a psychologist on the frailties of eyewitness identification. The witness would have commented on the factors present during the crime, a robbery, that would impair the ability of witnesses to make an accurate identification; the problem of cross-racial identification; the quality of memory recall for perceived events over different time spans; the influence of "post event information" on memory; the validity of the photographic lineup and misconceptions of jurors respecting them; the difficulties with an "in dock" identification and the police procedures relating to the identification of the two accused. Finlayson J.A., speaking for the Court, noted the Crown's "passivity" at trial and on appeal with respect to this type of evidence. He found this posture unsurprising given the Crown's reliance on the "soft sciences" in other cases. Given the limited argument before the Court, he was not prepared to determine whether this type of evidence was ever admissible. However, he forcefully questioned the judiciary's over eagerness to abdicate fact finding responsibilities to purported experts in behavioural sciences and assume that a particular witness possesses special knowledge and experience going beyond that of the trier of fact. Having noted the Supreme Court of Canada's criteria for the admission of expert evidence in criminal cases enunciated in R. v. Mohan<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a12">[12]</a> (relevance, necessity in assisting the trier of fact, the absence of an exclusionary rule, and a properly qualified expert), he expressed serious reservations as to whether the psychology of witness testimony is an appropriate area for opinion evidence at all or, put another way, is even a recognized branch of psychology. Even if it is, opinion evidence describing the problems in identification is not, in his view, directed to matters that are outside the normal experience of the trier of fact. The problems in cross-racial identification reflected by the psychologist's research support the public perception and therefore are not beyond the jurors' own experience. Finlayson J.A. favoured the use of jury instructions to convey the frailties of eyewitness evidence rather than expert testimony, stating:<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a13">[13]</a>  This is not to say that a reminder as to cross-racial identification is not appropriate in a case where it is an issue. However, the argument that impresses me is that such a reminder from the trial judge is more than adequate, especially when it is incorporated into the well established warnings in the standard jury charge on the frailties of identification evidence. Writings, such as those of Dr. Yarmey, are helpful in stimulating an ongoing evaluation of the problem of witness identification, but they should be used to update the judge's charge, not instruct the jury. I think that there is a very real danger that such evidence would "distort the fact-finding process."  More than that I am concerned that much of what Dr. Yarmey and those who support him are saying is that our jury system is not adequate to the task of determining the guilt of an accused person beyond a reasonable doubt where identification evidence is pivotal to the case for the Crown. Much of Dr. Yarmey's evidence might well give us pause to consider whether our present jury instruction is adequate to the task, but to admit such evidence in the particular case may foster apprehension in the timorous juror and give him or her an excuse for not discharging that juror's duty to the community that he or she has sworn to serve.  An additional problem is that this evidence introduces yet another potentially contentious issue into the trial. If the defence is entitled to call this opinion evidence, the Crown is entitled to rebut it. This means that the jury has to be instructed as how conflicts in the opinions of experts are to be resolved, and when resolved, as to the limited use of the evidence. The jury must also be told that to the extent that the opinion evidence contradicts anything said by the trial judge in his or her charge, the jury must reject the evidence and accept what is said by the judge. Would it not be simpler to have the trial judge give the instruction in the first place? He ultimately concluded that the concerns expressed by the proffered witness turned out to have limited application to the case itself, and that the trial judge’s jury instructions properly placed any frailties of the evidence in the context of the case as a whole. McIntosh has been cited by various Canadian courts in support of the proposition that this kind of evidence ought not to be received. The contention that the evidence is unnecessary (as it is within the common experience of triers of fact) figures prominently in these decisions.<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a14">[14]</a>  The recent role that science (such as hair microscopy and forensic pathology) has played in wrongful convictions does invite a close scrutiny of expert admissibility, and the too ready acceptance that expert opinions are well grounded in validated science. The not-so-subtle subtext of McIntosh is that the prior introduction of junk science, such as child abuse accommodation syndrome, has made the Court particularly wary about expert evidence in the “soft sciences.” As well, there is something appealing about reducing the length and complexity of trials by allowing judges to instruct jurors or themselves, without the introduction of competing or complex scientific testimony, on the matters that should concern them.  However, as noted by Justice Casey Hill<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a15">[15]</a>, this approach has its own difficulties: The courts here and in the United States continue to resist opening up the eyewitness identification subject to a contest of expert witnesses. At the same time, the courts, as reflected in cases like McIntosh, Smith and Cromedy, attribute to juror common sense and common knowledge an understanding of aspects of eyewitness identification. This approach, superficially attractive, is not without problems: (1) if expert evidence respecting eyewitness identification issues i.e. cross-racial effects, frailties of simultaneous photo line-ups undertaken without blind administration protocol, the weak link between witness confidence and identification accuracy, etc. is unnecessary as the subject matter is so notorious as to not require expert evidence why are we taking such pains to remind or instruct jurors about matters they presumptively know? (2) the behavioural science community would disagree that ordinary people do know the ins and outs of eyewitness identification issues – the experts believe they would be delivering a counter-intuitive message to triers of fact and thereby correcting their misperceptions  (3)  how does a trial judge, in updating her/his jury charge or bench book material, unaided by the calling of expert evidence before the trier(s) of fact, engage in extra-record reading relating to eyewitness identification issues? Receive expert evidence on the correct jury charge or legal self-direction? Invite such evidence or the filing of relevant behavioural science articles? These issues stand to be clarified as the courts struggle with the boundaries of judicial notice and the admissibility of expert evidence respecting eyewitness identification processes.  The problems identified by Justice Hill are highlighted by Finlayson J.A’s use of “cross-racial identification” as the kind of frailty best dealt with through jury instruction. There is a substantial body of jurisprudence, drawing upon behavioural science studies, that supports the proposition that cross-racial identifications are particularly difficult, and may easily produce unreliable results. But studies have also questioned whether this phenomenon applies to all cross-racial identifications. Are some groups better than others in bridging the “racial divide” in identifications? Are difficulties in cross-racial identifications connected with the limited contact that members of one race may have with another? If so, is a caution still appropriate where the witness has extensive contact with members of the accused’s race? It is questionable whether a trial judge can resolve these issues in a scientifically supportable way based on a review of literature, rather than through expert testimony. How is the trial judge to resolve the conflicting scientific literature? Moreover, if the literature and behavioural scientists differ on these issues, can it truly be said that the truths surrounding cross-racial identifications are within the common knowledge of judges or juries or the subject of judicial notice? Finlayson J.A. commented that addressing the frailties of cross-racial identifications in jury instructions avoids the spectre of competing experts or having to instruct the jury to resolve any conflict between the testimony and the jury instructions in favour of the latter. But doesn’t the fact that properly qualified experts may disagree with each other and with the jury instructions put in question the foundation for the jury instruction in the first place? An accused may see little harm, in this particular example, if trial judges instruct a jury that cross-racial identifications may be particularly unreliable, assuming that it is the Crown that relies upon that identification to support its case. At worst, the caution may be over-inclusive and not applicable to this particular identification. But even assuming that a cautionary jury instruction on the frailties of cross-racial identification is appropriate, does it sufficiently bring home these frailties to the jury? The latter is a real concern for several reasons. If, as reflected earlier in this paper, jurors do place undue reliance on identification evidence as compared to other types of evidence, their willingness to do so may be highly resistant even to cautionary instructions. Second, it is one thing for a trial judge to explain, in a general way, the recognized frailty of cross-racial identification. It is quite another thing for a properly qualified expert to both explain, illustrate and perhaps even demonstrate what the problem is, based on scientific research that meets Mohan/Daubert[<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a16">16]</a> reliability standards. The jury instruction may be accurate; but hardly compelling or persuasive. In any event, the assumption that frailties in eyewitness identification are well within the common knowledge or experience of triers of fact is highly questionable. Not only do studies suggest the contrary, but certain well supported conclusions about eyewitness identifications (such as the desirability for sequential rather than simultaneous photographic displays) are counter-intuitive. Others (such as the dangers of post-line-up reinforcement or affirmation) may accord with common sense, but only when fully explained. And even if these conclusions generally accord with common sense, the science may be needed to articulate the depth of the problem. It is also interesting that McIntosh effectively lumps this area of behavioural science into the other “soft sciences” that are viewed with such skepticism by the Court. Again, recognizing the commendable movement to view more critically the introduction of expert testimony, it is well arguable that in this area, there now exists a body of peer reviewed research, recognized in the relevant scientific field, that permits objective, quantifiable testing and validation. Simply put, this is an area that arguably can survive a challenge based upon the Mohan/Daubert criteria, particularly when the thrust of the proffered opinion is unlikely to confirm the accuracy of an identification (a determination which is the trier’s responsibility), but simply articulate its limitations. State (Tennessee) v. Copelan[<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a17">17</a>] is a 2007 decision in which the Supreme Court of Tennessee reversed a trial court’s decision (and overruled previous jurisprudence) to exclude expert testimony on eyewitness identification. The Court recognized advances in this field, citing Boston College Law Professor Mark S. Brodin, a self-described skeptic on the topic of behavioural science evidence. Brodin made the following observations:<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a18">[18]</a> Ironically, the form of social science evidence which is most solidly based in “hard” empirical science has met with the most resistance in the courts. Expert testimony concerning the limitations and weaknesses of eyewitness identification is firmly rooted in experimental foundation, derived from decades of psychological research on human perception and memory as well as an impressive peer review literature. The Court was persuaded by the educational training of the experts and the empirical science employed to the point that it was prepared to depart from the previous exclusionary rule. It noted that many scholarly articles detail the extensive research in this area. DNA exonerations have also validated this research. The Court addressed the “necessity” argument in this way:<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a19">[19]</a> Courts traditionally tended to exclude scientific evidence from expert witnesses in these disciplines, primarily on the basis that the testimony addressed matters within the common understanding of jurors, was confusing, or that it invaded the province of the jury to make credibility determinations. However, with the increased awareness of the role that mistaken identification…play[s] in convicting the innocent, a new trend is developing regarding the admissibility of expert testimony. The Court then cited scientifically tested studies, subject to peer review, that have identified legitimate concerns that jurors are insensitive to many factors that influence eyewitness memory and give disproportionate weight to the confidence of the witness. They overestimate the reliability of cross-racial identification. The Court concluded that “the research also indicates that neither cross-examination nor jury instructions on the issue are sufficient to educate the jury on the problems with eyewitness identification.<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a20">[20]</a>” The proffered witness in this case would have explained that there is little or no relationship between certainty and accuracy; described how extraneous factors can affect memory accuracy; expressed particular concern about the cross-racial identification generally and in this case; and indicated how subsequent events (such as the officers’ comment after the identification that the person identified was the primary suspect, and the witness’s later observation of the defendant in the newspaper linking him to the crime) may have reinforced the correctness of the witness’s otherwise questionable identification. In the Court’s view, this evidence was admissible:<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/identification-evidence?page2=true#a21">[21]</a> In our view, Dr. Brigham’s testimony satisfies the requirements of the McDaniel test in that it is reliable and would have been of substantial assistance to the jury. The proffered testimony was based upon solid empirical data gathered in a scientific setting. The information was subjected to a thorough peer review process. His opinions were formulated from extensive research and would have given the jury a valuable context within which to assess the eyewitness identification. Moreover, the trial judge, who saw and heard the witnesses firsthand, expressed a desire to allow the testimony as particularly helpful under the circumstances of this case. Despite the strong language in McIntosh, the Ontario Court of Appeal did acknowledge that, given the position of the parties, it was not deciding whether expert testimony on eyewitness identification is ever admissible. If the science supports the proposition that many of the frailties respecting eyewitness identification are not within the common experience of triers of fact, there may be a basis for revisiting the Canadian trend to exclude this kind of expert evidence. Interestingly, Oliphant A.C.J.Q.B. in R. v. Sheppard, supra, in excluding expert testimony on eyewitness identification, left open the possibility that it could be admitted in jury trials. Based in part on the vast array of educational programs available to judges, as well as appellate guidance provided to trial judges in this area, the proffered expert, while properly qualified as such, did not provide him with information that was outside either his experience or knowledge as a trial judge. Assuming that expert testimony in this area continues to be excluded, counsel and trial judges should hearken back to the less often cited comment of Finlayson J.A. that “[m]uch of Dr. Yarmey's evidence might well give us pause to consider whether our present jury instruction is adequate to the task.” For the reasons earlier given, it may well be inadequate (and indeed unconvincing) to advise jurors, for example, that there is no correlation between confidence and reliability or as to the dangers of post-line-up reinforcement or affirmation, even if coupled with a general caution on the dangers of eyewitness testimony, unless the trial judge also conveys the depth of the problem. I suggest that this can only truly be done, and jury instructions can only serve as a true proxy for expert testimony, if some detail is provided of what the scientific studies show. The dangers associated with this type of evidence may require no less. <a name="a1">[1]</a> R.C.L Lindsay,“Eyewitness Evidence” in Forensic Evidence inCanada,2nded. by Chayko G.M. and Gulliver E.D. (Toronto: Canada Law Book, 1999) at 205. <a name="a2">[2]</a> Ontario<, The Commission on Proceedings Involving Guy Paul Morin: Report(Toronto: Ontario Ministry of the Attorney General, 1998) (Commissioner Fred Kaufman). <a name="a3">[3</a>] R. v. Miaponoose(1996), 110 C.C.C. (3d) 445 at 450-451 (Ont.C.A.);R. v. A.(F.)(2004), 183 C.C.C. (3d) 518 at para. 39 (Ont.C.A.);R. v.Goran, [2008] O.J. No. 1069 (C.A.) at para. 19 [Goran]. <a name="a4">[4</a>] David Watt,Watt’s Manual of Criminal Jury Instructions(Toronto: Thomson Canada Limited, 2002) at 221-222. <a name="a5">[5]</a> Goran, supranote 3 at para. 26;R. v. Knox(2006), 209 C.C.C. (3d) 76 at paras. 51 and 55 (Ont.C.A.);R. v. Richards(2004), 70 O.R. (3d) 737 at para. 33 (C.A.)[Richards]. <a name="a6">[6]</a> Ducharme J. inR.v. Powell[2007] O.J. No. 4196 at para. 10 (Sup.Ct.)[Powell] makesthe important related point that demeanour should play virtually no role in assessing the reliability of an identification. <a name="a7">[7]</a> R. v. Baltovich(2004), 191 C.C.C. (3d) 289at para.79(Ont. C.A.);R.v. Turnbull, [1976] 3 All E.R. 549 at 552 (C.A.);R. v. Canning(1986), 27 C.C.C. (3d) 479 at 479-480 (S.C.C.);R. v. Brand(1995), 98 C.C.C. (3d) 477 at 479 (Ont.C.A.);R. v. Fengstad(1994), 27 C.R. (4th) 383 at 396-397 (B.C.C.A.);R. v. Proulx(1992), 76 C.C.C. (3d) 316 at 350 (Que.C.A.);R. v. Richards, supranote 5at para. 28;R. v. Brown(2007), 216 C.C.C. (3d) 299 at paras. 17-19 (Ont.C.A.). <a name="a8">[8]</a> For convenience, the term “line-up” is used here to include not only the live assembly of individuals, including a suspect, but photographic displays. <a name="a9">[9</a>] R. v. Spatola, [1970] 4 C.C.C. 241 at 250-251 (Ont.C.A.);R. v. Whittle, [1984] A.J. No. 563 at para. 15 (Alta.C.A.);Goran, supranote 3 at para. 31. <a name="a10">[10]</a> A helpful summary of the leading authorities on the unreliability of the dock identification is contained inPowell, supranote 6 at paras. 13-14 <a name="a11">[11]</a> R. v. McIntosh(1997), 117 C.C.C. (3d) 385 (Ont.C.A.)[McIntosh]. <a name="a12">[12]</a> R. v. Mohan,[1994] 2 S.C.R. 9. <a name="a13">[13]</a> McIntosh, supranote 11 at paras. 22-24. <a name="a14">[14]</a> R. v. Woodward,[2009] M.J. No. 132 (C.A.);R. v. Sheppard, [2002] M.J. No. 135 (Q.B.)[Sheppard];R. v. Myrie, [2003] O.J. No. 1030 (Sup.Ct.). <a name="a15">[15]</a> Casey Hill, “Eyewitness Identification Evidence: Emerging Issues”Alan D. Gold Collection of Criminal Law Articles(December 2004) ADGN/RP-196 at paras. 25-26 [QL]. <a name="a16">[16]</a> Daubert v. Merrell Dow Pharmaceuticals, Inc.113 S.Ct 2786 (1993). InDaubert, the Court departed from the previous test for threshold reliability that had rested on whether the expert evidence was generally accepted in the relevant scientific community. Instead, the Court considered a number of factors, including whether the theory or technique had been tested and found subject to falsification; whether it had been subject to peer review and publication; its known or potential error rate; and (as one factor only) its general acceptance. <a name="a17">[17]</a> State (Tennessee) v. Copeland, 226 S.W. 3d 287(Tenn.2007) [Copeland]. <a name="a18">[18]</a> M.S. Brodin,“Behavioral Science Evidence in the Age of Daubert: Reflections of a Skeptic” (2005)73 U.Cin.L.Rev. 8678 at 889-90. <a name="a19">[19</a>] Copeland,supranote 17at299 <a name="a20">[20]</a> Copeland, supranote 17at300 <a name="a21">[21</a>] Ibid.302;

2009-11-12T04:52:46-05:00

Paper Presented at Federation of Law Societies National Criminal Law Program Victoria, British Columbia, July, 2009 - SECTION 6.2 Author:<a target="_blank" href="/lawyers/mark-sandler"> Mark J. Sandler</a> It is well recognized that inaccurate eyewitness identification evidence is a systemic cause – perhaps the leading cause – of wrongful convictions. Eyewitnesses frequently “get it wrong.” This reflects not only the inherent difficulties in identifying people, particularly strangers, but how easily identifications can be tainted through flawed processes and become the product of suggestibility or contamination. identification-evidence

2009-10-02T00:00:00-04:00

Identification Evidence

2009-11-25T13:42:49-05:00

1 Paper Presented at Federation of Law Societies National Criminal Law Program Edmonton, Alberta July, 2007 - SECTION 17.1 Author: <a target="_blank" href="/criminal-defence-lawyers/mark-sandler">Mark J. Sandler</a> It is beyond dispute that a lawyer has a duty of confidentiality to the client. However, the breadth of the duty, and exceptions to it, are more contentious. This paper briefly examines the parameters of this duty, most particularly in the context of criminal representation. The duty of confidentiality finds expression not only in jurisprudence, but in ethical rules adopted by various law societies and by the Canadian Bar Association. The essence of this ethical rule is that a lawyer must hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, and shall not divulge such information unless expressly or impliedly authorized by the client, required by law or otherwise permitted or required by the relevant rules of professional conduct. Confidentiality is not synonymous with privilege. All privileged communications are, by definition, confidential. But not all confidential information is privileged. For example, in the course of assembling a case for trial, a lawyer may be advised by a third party of damaging or highly personal information about the client. The lawyer has a duty to hold this information in strict confidence, regardless of its source or whether it is known to others.  Solicitor-client privilege is largely designed to promote full candour, and thus, effective representation. The duty of confidentiality is also intertwined with the lawyer’s duty of loyalty to the client. A failure to respect confidentiality undermines the client’s confidence that the lawyer is acting solely in that client’s best interests. Indeed, it can fuel not only disciplinary or civil proceedings against the lawyer, but a judicial determination that the lawyer is in a conflict of interest. Several features of the duty of confidentiality are of particular importance: <ul> <li style="text-align: justify;">The duty survives the professional relationship, continuing after the lawyer no longer acts for the client. Even where the parting between lawyer and client has been acrimonious, the duty persists, subject to exceptions described below.<a href="#a1">[1] </a></li> <li style="text-align: justify;">The duty applies, whether or not the client ultimately retains the lawyer. For example, a lawyer may meet with a potential client, uncommitted to whether the retainer will be accepted. Indeed, the lawyer may wish to determine whether a conflict of interest exists, preventing him/her from acting. In those circumstances, the lawyer must be careful not to elicit confidential information, thus engaging the duty of confidentiality and potentially preventing the lawyer from acting for another client.<a href="#a2">[2] </a></li> <li style="text-align: justify;">The duty should be interpreted to extend not only to the overt disclosure of confidential information, but its use. This is not always clear from the applicable rules of professional conduct, but accords with the underlying rationale of the duty.<a href="#a3">[3] </a></li> <li style="text-align: justify;">Not only is the lawyer obligated not to divulge confidential information, but must protect it from inadvertent disclosure. This means, for example, that documents should be safely and securely stored, and consideration given to the means of  communicating with clients. Some lawyers limit the content of their emails or fax transmissions, and, at a minimum, place standardized warnings on these communications to address unintended recipients. Lawyers must be particularly mindful of the dangers associated with communicating or working on documents alongside strangers in public places>.> The sharing of confidential information between lawyers at public events, such as sports venues, raises similar concerns. </li> <li style="text-align: justify;">Generally, there is implied or express authority for a lawyer to disclose, as necessary, confidential information to those engaged or employed by the lawyer>. Nonetheless>, the duty of confidentiality also imposes an obligation to take reasonable steps to ensure the maintenance of confidentiality by all such persons.<a href="#a4">[4]</a></li> <li style="text-align: justify;">The duty also extends to the secure storage of confidential information, and its destruction (where permissible) once the retainer has ended. </li> <li style="text-align: justify;">The duty, and potentially applicable exceptions to it, should be explained to the client. The lawyer need not anticipate every conceivable scenario, but those that might reasonably be expected to arise. For example, an appellate lawyer must advise the client that an assertion of ineffective assistance at trial is likely to result in the disclosure of otherwise privileged communications between trial counsel and the appellant. </li> </ul> Certain types of criminal representation raise special issues in maintaining the duty of confidentiality:  <ul> <li style="text-align: justify;">Representing Young Persons:- Young persons often attend a lawyer’s office in the company of a parent or parents. As well, parents generally want to be fully informed about their child’s case. They often assume financial responsibility for the defence. Regardless of any of the above, it is the young person who is the lawyer’s client. The duty of confidentiality is no less important in representing a young person. This means that privileged communications between the young person and the lawyer cannot be shared with the young person’s parents, absent that person’s consent. Similarly, confidential information acquired by the lawyer cannot be shared with the parents, absent such consent. Young persons should be advised at the outset of the meaning of confidentiality and privilege, and instructions should be taken, in the absence of the parents, as to whether – and to what extent – the young person wants confidential information to be shared with parents. Both the young person and the parents should understand that the parents’ presence during the interview process (or the sharing of privilege>d> information with them) may rob the communications of their otherwise privileged status, and permit the prosecution to elicit those communications from the parents as witnesses. This may be an unwelcome surprise, for example, at a bail hearing when a parent testifies as a potential surety. None of this means that parents should never be present when their children meet with their lawyers. It does mean that lawyers should be alive to this issue, and advise their clients accordingly.</li> <li style="text-align: justify;">Representing Multiple Accused:- In some circumstances, lawyers may act for multiple accused. Such a retainer must be carefully considered. Potential antagonistic defences will obviously prevent representation> of multiple accused>. As well, multiple accused, although not antagonistic, may be so differently situated (based, for example, on the strength of the respective cases against each) that they are well advised to be separately represented. Where the lawyer continues to act for multiple clients, they must understand that the lawyer cannot keep confidences from either client.[<a href="#a5">5] </a></li> <li style="text-align: justify;">Joint defence agreements:- Separately represented accused may stand jointly charged in factually complex, “paper intensive” cases>, compelling a level of cooperation between their lawyers. That cooperation might well invite an exchange of otherwise confidential information to enable non-antagonistic parties to prepare for trial. This raises the obvious concern that the information will lose its confidential or even privileged status as a result of its dissemination to other parties. As a result, Canadian lawyers increasingly resort to joint defence agreements, designed to facilitate the exchange of such information, while preserving, to the extent possible, confidentiality and, pursuant to such an agreement, placing limits on the disclosure or use of such confidential information. These agreements invariably provide for termination of the agreement, while continuing to limit the subsequent disclosure or use of the exchanged information, where a particular accused’s defence strategy becomes antagonistic to the others, or where an accused pleads guilty and agrees to provide evidence for the prosecution. Of course, the agreements cannot be incompatible with ethical or legal responsibilities, and often expressly so indicate.</li> <li style="text-align: justify;">The Fugitive:- Lawyers may be contacted by a cl>ient who is unlawfully at large. The lawyer must not assist the client to remain unlawfully at large; indeed, the lawyer’s obligation is to advise the client to surrender, and to attempt to gain agreement that the client do so in a way that least prejudices the client’s interests. The communication of the client’s location to the lawyer is likely privileged.  It is, at the very least, confidential, and cannot be voluntarily disclosed by the lawyer to the authorities, unless disclosure is authorized by the client; one of the exceptions to the duty of confidentiality applies (such as the public safety exception described below); or disclosure is compelled by court process. </li> </ul> Confidential information may be inadvertently disclosed to third parties. Where the information is privileged, in the absence of waiver, the privilege is likely not lost as a result of its inadvertent disclosure.<a href="#a6">[6]</a> In determining whether privilege has been waived through disclosure, the courts will consider, inter alia, whether the error was in fact inadvertent, whether an immediate attempt has been made to retrieve the documents once disclosure has been discovered, and whether continued preservation of the privilege would cause unfairness to the receiving party.<a href="#a7">[7]</a> Where a lawyer obtains a confidential document that has been inadvertently disclosed by an opposing party, the recipient’s ethical obligation likely requires that the document be returned unread and uncopied, or if partially read before realizing that it was inadvertently disclosed, the lawyer is likely required to cease reading it, and then return it, uncopied <a href="#a8">[8]</a> Proulx and Layton note that existing rules of professional conduct are not uniform on what use, if any, can be made of the partially read document. Some are silent on the issue, although they articulate the obligation of the lawyer not to take advantage of a mistake made by opposing counsel <a href="#a9">[9]</a> In my view, privileged documents inadvertently disclosed should be returned uncopied and, to the extent possible, unread. Any issues about whether privilege has been properly asserted, or as to how such documents might be used in the future can be resolved through seeking direction from the court. Another approach adopted in the jurisprudence has been for the recipient to seal the documents and any notes related thereto, pending such direction.<a href="#a10">[10]</a> For criminal lawyers, this issue arises most frequently in the context of Crown disclosure, where confidential or privileged information (such as an informant’s identity or personal contact information for fearful witnesses) has not been excised from officers’ notebooks. Some counsel hold take the erroneous position that once this information is inadvertently disclosed, they must share it with their clients. As reflected earlier in this paragraph, the ethical rules do not support this view. Where a lawyer has obtained the opposing party’s privileged documents, the court may be asked to disqualify that lawyer from continuing to act. In Celanese Canada Inc. v. Murray Demolition Corp.,<a href="#a11">[11]</a> the plaintiff executed an Anton Piller order, resulting in access to privileged documents. The Supreme Court of Canada concluded that no one has the right to be represented by counsel who has had access to solicitor-client documents in circumstances where such access ought to have been anticipated and, without great difficulty, avoided and where the searching party has failed to rebut the presumption of a resulting risk of prejudice to the party against whom the Anton Piller order was made. The court articulated the factors that should be taken into account in determining whether disqualification is necessary.<a href="#a12">[12]</a> In my view, these factors have equal application to criminal cases.  Express or Implied Authorization Confidential information may be divulged where expressly or impliedly authorized by the client. Generally, disclosure or use of confidential information is impliedly authorized where patently necessary to fulfill the lawyer’s mandate. That being said, express authorization should be obtained where disclosure may bring adverse consequences.<a href="#a13">[13]</a> For example, as earlier noted, ineffective assistance of counsel may be asserted as a ground of appeal against conviction. Advancing this ground of appeal may result in a loss of privilege concerning the former lawyer’s file and his/her communications with the client.  This is because the assertion of ineffective assistance of counsel may involve a description by the appellant of instructions given to, or advice received from, the lawyer, resulting in a waiver of privilege. Similarly, the appellant may not, at first instance, rely upon otherwise privileged communications to make out a case of ineffective assistance, but the former lawyer may only be able to successfully defend against such an allegation by citing some or all of the otherwise privileged communications. It follows that the appellate lawyer must ensure that the client’s instructions to proceed with this ground of appeal are informed by the likelihood that the former lawyer will be permitted to open up his/her file to the prosecution and divulge otherwise privileged communications. Disclosure to opposing parties of expert reports that are otherwise confidential, and otherwise subject to litigation or solicitor-client privilege raises similar concerns. The client must be fully informed of the potential consequences of such disclosure.<a href="#a14">[14]</a> Publicly Available Information The point was earlier made that the duty of confidentiality is broader in some respects than privilege. The lawyer has a duty to hold information in strict confidence, regardless of its source or whether it is known to others.  Lawyers have been known to divulge information about their clients at cocktail parties or similar events, prefaced with the explanation that the client’s charges or guilty plea are “a matter of public record.” In a number of instances, lawyers do so at their peril. Information that is on the public record may nonetheless not be generally known, or likely only to be accessed by a limited class of individuals, and even then, only with special effort. The duty of confidentiality is complemented by the duty of loyalty that lawyers owe to their former and present clients. A lawyer who contributes to a wider dissemination of prejudicial or embarrassing information about the client can hardly be said to be acting in the client’s best interests or fulfilling the ongoing duty of loyalty. That being said, it must also be recognized that some facts are so notorious or well-known that it would be difficult to imbue them with any confidential characterization, or regard their disclosure as contrary to the client’s interests. Indeed, it might even be said that the lawyer’s favourable treatment of notorious facts in public discussion advances the client’s interests and might be regarded as impliedly authorized.  Existing rules of professional conduct are not uniform on the approach taken to so-called public information. Some rules do not address this issue. Others suggest that the duty of confidentiality may not apply to facts that are public knowledge, but caution against participating in or commenting upon speculation concerning the client’s affairs or business.<a href="#a15">[15]</a> At the other end of the spectrum, the Alberta Code of Professional Conduct <a href="#a16">[16]</a> prohibits the disclosure of any confidential information regardless of its source and whether or not it is matter of public record.  In Stewart v. Canadian Broadcasting Corp,<a href="#a17">[17</a>] a criminal defence lawyer hosted a television series that explored significant cases. One was his own, pertaining to a case in which the accused was convicted of offences associated with a fatal car accident and leaving the scene.[<a href="#a18">18</a>] Shortly before the television show was aired, the client learned of the impending episode, and registered his objection. The show was nonetheless aired. The civil suit was defended, in part, on the basis that no confidential information was disclosed in the episode [<a href="#a19">19</a>] The episode’s contents were derived from court transcripts, and the case had been the subject of widespread publicity, albeit 12 years previously.   Ultimately, the court concluded that no confidential information had been disclosed, but nonetheless found that the lawyer breached his fiduciary duty of loyalty to the client by favouring his interests over those of the client, and undercutting the benefits and protections he had originally provided to the client as his counsel by the way the television series had publicized the client’s case, increasing the adverse public effect on the plaintiff/client of his crime, trial and sentencing.  Required by Law All rules of professional conduct provide that lawyers shall disclose confidential information when required by law to do so. Coupled with this mandate is the obligation not to disclose more information than is required. Since the jurisprudence provides strong class protection against the compelled disclosure of privileged solicitor-client communications, the lawyer may only be compelled to divulge such communications where one of the narrow exceptions are found to apply, or where the privilege has been waived. The court or tribunal of competent jurisdiction may also find that communications were not truly privileged, for example, because they were not exchanged in confidence. Any doubts in that regard should be resolved by the lawyer in favour of asserting the privilege, until such time as the court or tribunal rules otherwise.<a href="#a20">[20</a>] Four exceptions to solicitor-client privilege figure prominently in the jurisprudence: <ul> <li style="text-align: justify;">Innocence at stake:- Solicitor-client privilege will yield only in clearly defined circumstances where the accused’s innocence is at stake. The stringent test for setting aside the privilege is fully articulated in R. v. McClure<a href="#a21">[21</a>] and need not be further addressed here.</li> <li style="text-align: justify;">Crime fraud:- Communications between lawyer and client which are criminal or made with a view to obtaining legal advice to facilitate the commission of a crime> are not privileged. As a result, their disclosure can be compelled through court process.<a href="#a22">[22</a>]</li> </ul> Proulx and Layton question whether there is a crime fraud exception to the duty of confidentiality (separate and apart from privilege) that would permit or mandate disclosure by lawyers, even in the absence of court process, when the circumstances exist that would trigger the exception to solicitor-client privilege.[<a href="#a23">23</a>] The better view is that no such exception currently exists, although the debate is hampered by imprecision in ethical rules and jurisprudence concerning the distinction between privileged and confidential non-privileged information. In a number of instances, the desirability of permitting or mandating disclosure may be met through the ability of lawyers to disclose confidential information to address public safety, to defend themselves against allegations of impropriety or to comply with duties not to mislead the court or to report certain conduct. These exceptions or duties extend to confidential non-privileged communications.  Public safety:- In Smith v. Jones,<a href="#a24">[24</a>] the Supreme Court of Canada articulated a public safety exception to privilege (and to non-privileged confidential information.[<a href="#a25">25</a>] A psychiatrist retained by the defence to assist with sentencing applied to the court for a declaration permitting him to disclose otherwise privileged information which he believed was necessary to prevent the commission of serious crimes. The court treated the information as subject to solicitor-client privilege. The Supreme Court held that disclosure is permitted, as a general rule, where there is an imminent risk of serious bodily harm (including psychological harm) or death to an identifiable person or group. The disclosure should be limited as much as possible, and in particular>,> to the information which indicates that the preconditions for disclosure exist. The court also acknowledged that there may not always be time to seek a court declaration.  While it did not articulate the precise steps that might be taken to prevent harm to the public, it observed that it might be appropriate to notify the potential victim, the police or the prosecutor, depending on the specific circumstances.  It follows that a lawyer contemplating disclosure to prevent future harm should seek judicial approval, where practicable. T>he lawyer also has an obligation, again where practicable, to take steps to address the issue without disclosing the information or seeking judicial approval to do so. In some circumstances, this will impose an obligation on counsel to discuss the matter with the client, to ascertain whether the concerns are real and/or to dissuade the client from his anticipated dangerous course of action. Counsel may be able to facilitate medical or family intervention. Sometimes, family members are the source of the concerning information. They might be encouraged to seek independent legal advice, on the basis of which, they are better situated to make the necessary disclosures. Lawyers may also be well advised to obtain guidance or direction from senior members of the bar or law societies. All that being said, the additional difficulty surrounding this exception is rooted in its widely divergent treatment by the various law societies, and in the interplay between the law societies’ ethical rules and the common law exception crafted by the Supreme Court of Canada. Some ethical rules provide only for permissible disclosure; some provide for mandatory disclosure in some situations, and permissible disclosure in others. One provides for mandatory disclosure only. The anticipated harms that trigger either permissible or mandatory disclosure include, depending upon the ethical rule consulted, a crime, a crime involving violence, a crime likely to result in death or bodily harm, death or serious bodily harm (without reference to the need for it to involve a crime), criminal or fraudulent transactions or serious crimes. As well, there may be other ethical rules (such as the obligation to report certain professional misconduct to the law society) or statutory duties (such as those surrounding children in need of protection) that also impact upon the lawyer’s responsibilities. It is beyond the scope of this paper to explore all of the issues raised here.<a href="#a26">[26</a>] But it is imperative that lawyers familiarize themselves with the ethical rules in their governing jurisdictions. <ul> <li style="text-align: justify;">Defence against Allegations of Impropriety or Incompetence: A lawyer is entitled to defend against an allegation of impropriety or incompetence. This might arise in a variety of ways: (a) a disciplinary complaint made against the lawyer; (b) a criminal charge facing the lawyer, or a criminal charge against a client whose defence implicates the lawyer (eg “my lawyer told me to leave the jurisdiction”); (c) a civil suit against the lawyer; (d) an assertion, on appeal, by the client that the lawyer provided ineffective legal assistance.</li> </ul> As reflected in several of these examples, the ability to divulge privileged communications is not dependent on whether the lawyer is a party to the proceedings in which the allegations arise.<a href="#a27">[27</a>] As well, this exception undoubtedly extends to the defence of associated lawyers or employees, although only some rules of professional conduct explicitly address this issue. <a href="#a28">[28</a>] The requirement that the lawyer not disclose more information than is required is more problematic here than in those cases where disclosure inevitably follows a court ruling. As well, a lawyer defending against allegations of impropriety is understandably motivated by self-interest, and might be inclined (despite the rule) to err on the side of disclosure. In some circumstances, a lawyer will be well advised to obtain independent legal advice. As well, where, for example, a lawyer is responding to a civil suit, an option discussed in the jurisprudence is the filing of a sealed response to enable judicial intervention.<a id="Ftn29" href="#a29">[29]</a> The requirement that disclosure be limited to what is necessary has implications not only for the content of the disclosure, but as to whom disclosure may be made, and when. So a relatively obscure statement of claim might well invite a response that discloses confidential information, but not public dissemination through the media. The “when” is more problematic. For example, the media might publish information about a client’s case that raises an allegation that the lawyer has been complicit in the client’s activities, although no formal complaint or charge has been brought. Or an unscrupulous client may have used the lawyer to advance a criminal objective. The lawyer who then becomes aware of this use may reasonably feel that his/her continued silence may increase the likelihood that the lawyer will be regarded by the authorities as knowingly complicit in what has taken place. The extent to which a lawyer can disclose confidential information, on his/her own initiative, in the absence of a formal complaint or charge, remains unclear. Proulx and Layton provide some guidance:<a href="#a30">[30</a>] Where no other option can reasonably be seen to protect counsel, disclosure may be justified. For instance, in Finers v. Miro, a law firm managing assets for a client learned that the assets were potentially subject to a constructive trust in favour of a third party who alleged fraud by the client, and that the firm also faced possible liability to the third party. In these circumstances, the court permitted the firm to make partial disclosure of otherwise confidential information. However, prior to taking this extreme step, counsel should consider alternative actions that stop short of whistle-blowing, including immediate cessation of the retainer and action to preserve evidence that will aid in demonstrating innocence if an allegation of misconduct arises in the future. As reflected above, the timing of disclosure is problematic, and particularly so where the complaint has been initiated by a third party, such as the police, and not the client. If the lawyer and the client’s interests coincide, it may be relatively simple to obtain the client’s authority to disclose sufficient confidential information to address the allegation. But more commonly, where such an allegation is made against a lawyer, the lawyer and the client’s interests conflict. Nor can the lawyer take comfort in the fact that, often, the client’s communications (for example in urging criminality upon the lawyer) may be subject to the crime fraud exception to privilege, since the better view (earlier articulated) is that the exception only operates where the lawyer divulges such communications under legal compulsion. The lawyer must generally cease acting for the client in these circumstances, given the conflict of interest that arises. Again, lawyers are well advised to consult their governing law societies’ ethical rules, since they again diverge on this issue. Rules of professional conduct also contemplate that a lawyer may disclose confidential information to establish or collect the lawyer’s fees, but again, the lawyer shall not disclose more information than is required.<a href="#a31">[31</a>] Advocates Lawyers as advocates also have a duties to the administration of justice. These are captured in various ethical rules, and most prominently, include the duty not to mislead the court.  4.05 (2) When acting as an advocate, a lawyer shall disclose to the judge and opposing counsel any information of which the lawyer is aware that a juror or prospective juror:  (a) has or may have an interest, direct or indirect, in the outcome of the case;  (b) is acquainted with or connected in any manner with the presiding judge, any counsel or any litigant; or  (c) is acquainted with or connected in any manner with any person who has appeared or who is expected to appear as a witness  unless the judge and opposing counsel have previously been made aware of the information. 4.05 (3) A lawyer should promptly disclose to the court any information that the lawyer has about improper conduct by a member of a jury panel or by a juror toward another member of the jury panel, another juror, or to the members of a juror's family. The advocates’ duties not to mislead the court and to disclose information concerning the jury impropriety or bias may collide with the duty of confidentiality. The issue also commonly arises in connection with the lawyer’s access to “the bloody shirt” or “smoking gun” although the issue is broader than framed in those terms, and encompasses the possession generally of potentially incriminating physical evidence, the fruits or instrumentalities of a crime. These topics are beyond the scope of this paper, and indeed are addressed, in part, elsewhere in this program. <a href="#a32">[32]</a> Addendum As acknowledged in this paper, Proulx and Ethics and Canadian Criminal Law is invaluable in identifying and addressing the many ethical issues that confront criminal lawyers, including those relating to confidentiality. On a personal note, the Honourable Michel Proulx was an inspiration and source of and advice for many of us. He will be deeply missed.   <hr style="width: 378px; height: 1px; text-align: left;" /> <a name="a1">[1]</a>The duty also survives the client’s death. In Proulx and Layton, Ethics and Canadian Criminal Law (Irwin Law Inc. 2001) at pp. 181-184, the compelling case is made for a rule relieving against continuing confidentiality in limited circumstances: for example, to exonerate a wrongly accused person based on otherwise privileged communications with the deceased client. The present “innocence at stake” exception does not assist, since it does not permit the lawyer to initiate disclosure; and the present “public safety” exception is unlikely to extend to wrongful conviction or imprisonment. <a name="a2">[2]</a> Descoteaux v. Mierzwinski (1982), 70 C.C.C. (2d) 385 (S.C.C.).    <a name="a3">[3]</a>The classic illustration is the lawyer who learns from the client that he has a troubled marriage, and then uses that information to seduce the client’s spouse. This would constitute a breach of the lawyer’s duty of loyalty and confidentiality, as well as raising obvious conflict of interest and other concerns.  <a name="a4">[4]</a> See, for example, Law Society of Upper Canada, Rules of Professional Conduct [“Ont.”], subrule 2.03(1) and Commentary; Law Society of Alberta, Rules of Professional Conduct [“Alta.”], Chapter VII, Rule 3, Commentary 3.  <a name="a5">[5]</a> See, for example, Ont. subrule 2.04(6). <a name="a6">[6]</a> Royal Bank v Lee (1992), 9 C.P.C. (3d) 199 (Alta.C.A.); Chan v. Dynasty Executive Suites Ltd., [2006] O.J. No. 2877 (Sup.Ct.). <a name="a7">[7]</a> Chan v. Dynasty Executive Suites Ltd., supra, at para. 31.   <a name="a8">[8]</a> See, for example, Law Society of British Columbia> [“B.C.”], Professional Conduct Handbook, Chapter V, Rule 15. <a name="a9">[9]</a> Proulx and Layton, Op.Cit., at pp. 199-201.  <a name="a10">[10]</a> Aviaco International Leasing Inc. v. Boeing Canada Inc., [2000] O.J. No. 2420 at para.11 (Sup.Ct.); Chan v. Dynasty Executive Suites Ltd, supra, at paras. 74-76. <a name="a11">[11]</a> [2006] S.C.J. No. 35. <a name="a12">[12]</a> Ibid., at paras. 56-59. <a name="a13">[13]</a> Of course, even where disclosure or use of confidential information appears necessary, the client’s instructions to the contrary prevail. Simply put, there is no implied authority in the face of disapproval. <a name="a14">[14]</a> R. v. Bajrangie-Singh (2003), 174 C.C.C. (3d) 351 (Ont.C.A.); R. v. Longaphie (1987), 39 C.C.C. (3d) 476 (Ont.Dist.Ct.). <a name="a15">[15]</a> See, for example, Ont. subrule 2.03(1) and Commentary; CBA Code Chapter IV, Commentary 8. <a name="a16">[16]</a> Alta., Chapter 7, Rule 1.  <a name="a17">[17]</a> (1997), 150 DLR 4th 24 (Ont.Ct.Gen.Div.). <a name="a18">[18]</a> The lawyer had represented the client at the sentencing hearing, not the trial itself. <a name="a19">[19]</a> The various ethical rules make clear that a lawyer’s literary works are not immunized from the ordinary rules of confidentiality: see, for example, Ont. subrule 2.03(6). <a name="a20">[20]</a> This is reflected, inter alia, in the jurisprudence governing the search of law offices, and the measures to be taken by lawyers to protect privilege: Lavallee, Rachel & Heinz v. Attorney General of Canada; White, Ottenheimer & Baker v. Attorney General of Canada; R. v. Fink (2002), 167 C.C.C. (3d) 1 (S.C.C.). <a name="a21">[21]</a> (2001), 151 C.C.C. (3d) 321 (S.C.C.).   <a name="a22">[22]</a> R. v. Campbell> and Shirose> (1999), 133 C.C.C. (3d) 257 (S.C.C.). The court sometimes refers to this exception as the future harm exception. I avoid the use of this term in this context, since it is frequently used, as well, to describe the ethical rules surrounding the public safety exception. <a name="a23">[23]</a> Proulx and Layton, Op.Cit.,at pp. 253-265. <a name="a24">[24]</a> (1999), 132 C.C.C. (3d) 225 (S.C.C.).   <a name="a25">[25]</a> The court noted at para. 44 that if the exception applies to the highest privilege recognized by the courts (solicitor-client), it necessarily applies to all classifications of privilege and duties of confidentiality. <a name="a26">[26]</a> There is a fulsome discussion of these issues in Layton and Proulx, Op.Cit., at pp. 230-253. <a name="a27">[27]</a> R. v. Dunbar (1982), 68 C.C.C. (2d) 13 (Ont.C.A.).  <a name="a28">[28]</a> See, for example, Ont. Subrule 2.03(4)  <a name="a29">[29]</a> R. v. Li, [1993] B.C.J. No. 2312 (C.A.)  <a name="a30">[30]</a> Proulx and Layton Op.Cit., at p. 228-229 [footnotes omitted] <a name="a31">[31]</a> See for example, Ontario> subrule 2.03(5). <a name="a32">[32]</a> See Richard C.C. Peck Q.C., Advocacy: Ethics and Professionalism 12.1; R. v. Murray> (2000), 144 C.C.C. (3d) 289 (Ont. Sup.Ct.).

2009-11-16T23:31:34-05:00

Paper Presented at Federation of Law Societies National Criminal Law Program Edmonton, Alberta July, 2007 - SECTION 17.1 Author: <a target="_blank" href="/criminal-defence-lawyers/mark-sandler">Mark J. Sandler</a> It is beyond dispute that a lawyer has a duty of confidentiality to the client. However, the breadth of the duty, and exceptions to it, are more contentious. This paper briefly examines the parameters of this duty, most particularly in the context of criminal representation. The duty of confidentiality finds expression not only in jurisprudence, but in ethical rules adopted by various law societies and by the Canadian Bar Association. the-lawyer-s-duty-of-confidentiality

2009-07-31T00:00:00-04:00

The Lawyer's Duty of Confidentiality

2009-11-25T13:43:42-05:00

1 Paper Presented At Federation of Law Societies National Criminal Law Program Victoria, British Columbia, July, 2009 Author: <a target="_blank" href="/criminal-defence-lawyers/mark-sandler">Mark J. Sandler</a> Point-Counterpoint: Should Experts Testify As Independent Sources of Information, Not as Witnesses on Behalf of the Party Who Calls Them? FOR THE AFFIRMATIVE: YES, THEY SHOULD The recent Inquiry into Pediatric Forensic Pathology in Ontario (“the Inquiry”) was prompted by the serious deficiencies in the work done and opinions rendered by Dr. Charles Smith, a renowned pathologist affiliated both with the Hospital for Sick Children in Toronto and with the Chief Coroner’s Office. Ina number ofcases that led to the Inquiry, Dr. Smith was allowed to give expert testimony in pediatric forensic pathology. His expertise almost invariably went unchallenged. Indeed, hepresented as a highly accredited expert.As it turned out, he was untrained in forensic pathology and, on his own admission at the Inquiry, was ill prepared to perform the role which he assumed in many criminal investigations and prosecutions.This, despite the fact that shortly before his undoing, he was the head of the Ontario Pediatric Forensic Pathology Unit and, as such, responsible for performing and reporting on the most difficult pediatric forensic pathology cases in the province.  Equally troubling was the content of his opinions. As we now know, there was little ornoreliable scientific support for a number of hisfindings or ultimateconclusions.This was masked by what Justice Goudge described as a “commanding presence” and a dogmatic style of delivery.<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a1">[1]</a> It is all too easy to see Dr. Smith’s serious shortcomings as unique. But the Inquiry revealed thesystemic vulnerability of the justice system to flawed expert testimony, including but not limited to forensic pathology opinions. There are many identified causes of that vulnerability. These include inadequacies in training or peer review, poorly resourced lawyers and insufficient use by the judiciary of its“gatekeeper” function to identify and weed out unreliable testimony. But here, I choose to focus on how an expert’s lack of independence can infect, and ultimately undermine the role of science to enlighten, rather than mislead, the justice system.  Ireturn to Dr. Charles Smith. In his testimony at the Inquiry, he admitted that, “when he began his work, he did not understand that his duty was to give impartial expert testimony to assist the court, as opposed to serving the adversarial interests of the Crown.”<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a2">[2]</a> One might question whether Dr. Smithever understood his duty of impartiality.But what can not reasonably be disputed is that Dr. Smith’s psychological attachment to the Crown’s case also raises systemic concerns.He, like others, regularly testified for the prosecution. He worked closely with police and prosecutors. He felt, on his own admission, aligned with their cause.No doubt, he also regarded himself as an advocate for thedeceasedchild. In the process, objectivity was lost. The expert as advocate is hardlypeculiar to Dr. Smith or to his personal circumstances. Judges and lawyers are all too familiar with the “friendly expert.” Simply put, “friendly experts” are those whose allegiance to the parties who retain them colours and shapes their evaluation of the case. At one end of the spectrum, their opinionsare little more than a reflection of what their client expects them to say.As a result, like North Koreandictators, they are highly resistant to change.Or lessovertly, theyarereluctant, by reason of their retainer, toevermodify their opinions,or acknowledgeany qualifications or limitations to them. To be clear, many experts discharge their responsibilities with objectivity and skill. But the justice system provides little or no support for an objective, uninterested witness. Indeed, thrusting the expert into the adversarial system without such support virtually guarantees that the justice system will continue to suffer from biased experts who, by reason of that bias alone, are unable to provide true assistance to the court. The Honourable Coulter Osborne, in his recent report on civil justice inOntario<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a3">[3]</a>, cited various consultations, working groups or task forces that identified the proliferation of experts and expert bias as major problems inOntario. He noted:<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a4">[4]</a> Consistent with the views of the CBA Task Force on Systems of Civil Justice, the Discovery Task Force and the Advocates’ Society Policy Forum, the vast majority of those consulted in the course of this Review identified the proliferation of experts as a significant problem that often leads to a battle of competing experts. Some observed that as soon as one party retains an expert, an opposing party is forced to retain an expert. The expert witness merry-go-round bears with it an advantage to a litigant who has significant financial resources. There is also the issue of partiality.A common complaint was that too many experts are no more than hired guns who tailor their reports and evidence to suit the client’s needs. I know that this problem exists, but I hasten to add that not all experts should be tarred with the same brush. The important, if somewhat obvious, point to be made here is that bias is hardlyconfined to the expert witness. On the contrary, the testimony ofan accused,a complainant,apoliceofficer or a civilian witness is often implicated successfully on the basis of their biases. Police can suffer from “tunnel vision” or “noble cause corruption.” Civilian witnesses can feel “part of the prosecution team” or predisposed to the accused by family or social connections.These biases are easily exposed.But bias in an expert is particularly dangerous. As Justice Sopinka noted inR. v. Morin <a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a5">[5]</a>,“dressed up in scientific language … and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible as having more weight than it deserves.”With that aura of infallibilityalsocomes the glow of objectivity and independence.Expertsoften present as “above the fray.” Their numbers, slides, samples do not lie. Their expertisetranscends the individual case.As experienced witnesses, they more easily fend off attacks based on purported bias. Those attacksare often simplistic or unimaginative, confined, for example, to“exposing” the fact thatthe expert is being paid for his/her involvement. Although relevant to bias, this fact is hardly unexpected or standing alone, a badge of bias. The expert’s bias may be quite subtle, relating to scientific interpretations ofhighlytechnical data or interwoven with uncontroversial specialized knowledge,and thereforedifficult to tease out. Successful exposure of bias or the unreliability of their findings or opinions may be dependent on specialized knowledgeand skillwhich the cross-examiner does not possess. The problem has been identified. What is the solution? The time has come for the justice system to providenewsupport forexperts as sources of independent and objective opinions, rather than as mere witnesses for the parties involved.Thisdoes not suggest that trial judges must assume the role of appointing the expert witness, rather than the parties.After all, thecourt may be no better situated than the parties to identify true expertise. Dr.CharlesSmith is, again, the perfect example. HadanOntario criminal court judge been tasked to appointhis/her own expert in pediatric forensic pathology cases, Dr. Smith would have been the most likely candidate. Moreover, the court should not be “invested” in the credibility or reliability of any expert.Nor is the court’s adjudicative role compatible (absent exceptional circumstances) with “ownership” of the expert witness or the content of his/her opinion.It is not the court appointment of experts that best promotes their independence and objectivity.There are other measures that can beput in place to best ensure that experts are independent, and are not advocates for the party tendering their evidence.Most can be drawn from the recently completed work of the Goudge Inquiry. In this regard, its recommendations apply not only to forensic pathologists, but to forensic experts more generally. Codes of Conduct A code of conduct for experts giving evidence in criminal proceedings should be created. This should be in addition to specific Codes of Practice and Performance Standards for forensic experts in certain fields. In the Civil Justice Reform Project, Mr. Osborne suggested that Ontario’s Rules of Civil Procedure or its Evidence Act be amended “to establish that it is the duty of an expert to assist the court on matters within his or her expertise and that this duty overrides any obligation to the person from whom he or she has received instructions or payment.<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a6">[6]</a>” This resonates with the approach taken inEngland andWales. There, the Court of Appeal offered up guidelines as to the duties experts owe to the court. They include:<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a7">[7]</a> 1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. 2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate. 3. An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinions. These guidelines for all expert witnesses have been included, and added to,in a booklet for experts prepared by the Director of Public Prosecutions. The booklet includes the requirement that experts called by the prosecution certify that they understand their duty to the court and that they will inform all parties and, where appropriate, the court if their views materially change. They also have a self-reporting obligation. They are required to inform the Director of Public Prosecutions of any pending legal, professional, or disciplinary proceedings against them;any adverse findings that have been made against them by a judge or coroner, or anything else that may adversely affect their professional competence or credibility. As noted in the Goudge Report<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a8">[8]</a>, many of these guidelines also find expression inThe Criminal Procedure [Amendment No 2] Rules 2006. Similar duties should be imposed on any expert witness in criminal proceedings as a precondition to beingpermitted to testify. As Justice Goudge conclude <a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a9">[9]</a>, a code of conduct, with ethical duties to reinforce the expert witness’s overriding duty to the court,rather than to the parties, can be introduced into the criminal justice system through practice directions issued by theapplicable courts. Those practice directions could require counsel(reinforced by provincial or territorial rules of professional conduct)to ensure that the experts they intend to call are familiar with the code of conduct and agree to be bound by it when giving evidence. Equally important, expert reports should end with a certification that the expert understands his/her overriding duty to the court and the obligation to disclose material changes to the expert’s opinion. As reflected earlier, these certifications are now required inEngland andWales. Of course, the existence of a code of conduct and certifications by experts that they understand their ethical duties provides no guarantee of compliance. Butthey serve several important functions. First,they educate both the expert and counsel who proffer the expert as witness. Second, as one witness noted at the Inquiry,they provide a tool that can be cited by expert witnesses while testifying or being prepared to testify to resist overzealous advocates who urge them to go beyond their expertise, ortoexpress an opinion thatmay fall within their expertise, but which is unsupportable.Disciplining experts is not the prime focus of these measures. However,ageneralcode of conduct for experts,specific codes of conduct and professional standards in relevant fields, and the certification process described above,can provide the underpinning for disciplinary action in egregious cases of non-compliance. Exclusion of Biased Evidence In the ordinary course, bias is a question of weight.Even where it demonstrably exists, it usually has little or no relevance to admissibility. However, experttestimony is admitted as an exception to the ordinary rule against giving opinion evidence. The exception is largely predicated upon the need for the trier of fact to receive expert assistance.The four-part admissibility test articulated inR. v. Mohan <a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a10">[10]</a> requires that the proffered evidence be, among other things, necessary in assisting the trier of fact, and not otherwise subject to an exclusionary rule. Infused into our exclusionary rules is the requirement that the prejudicial effect of the evidence not exceed its probative value, and that the evidence has threshold reliability. Biased evidence does not assist the trier of fact; will have diminished probative value which may be exceeded by its prejudicial effect, and, by reason of that bias, may not meet the most basic reliability threshold. I recognize, at once, that bias is more easily addressed at the end of the trial. Moreover, we should not routinely make bias the focus of an admissibility voir dire. However,it should not be overlooked thatbias, taken together with other deficiencies inthe proffered evidence, can figure prominently in a determination that the evidence should be excluded. <a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a11">[11]</a> For example, if the witness’s bias prevents him/her from acknowledging the limitations or uncertainties in the underlying science, then the expert’s testimony shouldnot be admitted either because the expert is unable to render a reliable opinion that accurately reflects the state of the science or because, in failing to provide such an opinion, the witness cannot truly be of assistance to the trier of fact.TheGoudge Report is a call for the vigilant exercise of the judicial “gatekeeper” function to exclude unreliable expert testimony. I submit thata robust use of that “gatekeeper” function willreinforce the expert witness’s independent role – as someonewedded to the science, not the party tendering his/her evidence. A Culture Change Members of the criminal defence bar frequentlyreport thatexpertsthey retainare prepared to comment on the opinions rendered by colleagues, but reticent to testify “against” them. These experts accept retainers on the basis that they will not be called as a witness.This poses an obvious dilemma for the defence bar. The case may require the calling of expert testimony. The defence may not have the financial resources to seek out,and consult with, foreign experts who might show less reticence. The reticence to challenge (however constructively) the opinions of fellow experts is, again, a reminder that experts are frequently uncomfortable in being seen as advocates drawn into the adversarial fray. The challenge is to promote a culture that permits them to maintain their independence and objectivity within an adversarial system. This can be done in several ways. First, protocols or policies should be establishedacrossCanada that enable (indeed encourage) government scientists to be retained in some cases for the defence. There are a range of options to address potential conflicts of interest and confidentiality concerns that arise from the use of government scientists by the defence. Experts who some times testify at the request of the Crown, and sometimes at the request of the defence, are less prone to acquire a prosecutorial or defence mind-set. Second, a spirit of professionalism must be cultivated that welcomes respectful scientific disagreement, and avoids ad hominen attacks directed to legitimately held conflicting views. Counsel have an important role to play in this regard. Third, experts retained by the Crown, should be fully prepared to meet with defence counsel prior to court to discuss their anticipated evidence and any limitations upon it.Meeting with the defence in advance of trial reinforces the witness’s independence and objectivity,rather than allegiance to the prosecution.The Goudge Report <a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a12">[12]</a> reflects that many scientists are prepared to do so, but that the responsibility for initiating such meetings rests with the defence.It is noted that some defence counsel are reluctant to “tip their hands” by revealing their position prematurely thereby allowing the expert to “firm up” their evidence to more easily deflect cross-examination. A similar issue arises when it is suggested that experts retained by the respective parties meet prior to giving evidence. Such meetings may lead experts to reconsider, clarify or narrow their points of disagreement. Indeed, in some jurisdictions, judges are empowered to compel such meetings to take place. Mr. Osborne recommends similar judicial powers in civil cases. However, the point isagainmadeby some defence counsel that such meetings may result in nothing more than the firming up of the evidence relied upon by the Crown.  Justice Goudge was not prepared to recommend that criminal judges be empowered to mandate such meetings.<a href="http://new-criminal-lawyers.parador.com/criminal-defence-news/should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them#a13">[13</a>]Such a recommendation would raise a host of Charter and related issues. But hewas hopeful, in the context of forensic pathology evidence, that with the increased professionalism of forensic pathologists, the proposed new pathology service in Ontario and a renewed emphasis on the forensic pathologists’ duties to the court, as opposed to their duties to the prosecution, defence concerns would be significantly minimized and defence counselwould be more willing both to meet with experts retained by the Crownin advance, and to allow the experts retained by the defence tomeet with their counterparts.The encouragement of such meetings by the criminal justice system in all scientific fields – not just forensic pathology -- is likely to further reinforce the independence and objectivity of experts.  The judiciary, Crown and defence counsel have another important role to play in supporting expert independence and objectivity. They should be mindful of the limitations of the science, and not press the experts to express opinions outside of their field of expertise or beyond what the science allows them to reliably say.The court is entitled – indeed obligated -- to step in when the questioning at trial invites the expert to do so. Simply put, a healthy respect for the science and its limitations by all concerned, together with a renewed emphasis on the overriding duty of experts to the court,rather than to the parties who call them, can only improve the administration of criminal justice.    <hr style="width: 378px; height: 1px; text-align: left;" /> <a name="a1">[1]</a> Ontario,Inquiry into Pediatric Forensic Pathology in Ontario, Report, (Toronto: Ontario Ministry of the Attorney General 2008) Vol. 3, page 470 (Commissioner Justice Goudge) [Goudge Report]. <a name="a2">[2]</a> Goudge Report,supra note 1 at 503. <a name="a3">[3]</a> Hon. Coulter A. Osborne, Q.C., Civil Justice Reform Project: Summary of Findings and Recommendations Toronto: Ministry of the Attorney General, 2007)[Osborne Report]. <a name="a4">[4]</a> Ibid. at 71. <a name="a5">[5]</a> R. v. Mohan, [1994] 2 S.C.R. 9. <a name="a6">[6]</a> Osborne Report, supra note 3 at 83. <a name="a7">[7]</a> R. v. Harris and others, [2005] E.W.C.A. Crim. 1980 at para. 271 <a name="a8">[8] </a>Goudge Report, supra note 1 at 504. <a name="a9">[9]</a> Ibid. at 505. <a name="a10">[10]</a> See note 5. <a name="a11">[11]</a> But see: R. v. Inco Ltd., [2006] O.J. No. 1809 (Sup.Ct.), appeal affirmed on other grounds [2001] O.J. No. 2098,  leave to appeal dismissed [2001] S.C.C.A. No. 436; Bank of Montreal v. Citak, [2001] O.J. No. 1096 (Sup. Ct); Fellowes, McNeil v. Kansa General International Insurance Company Ltd. et al. (1998), 40 O.R. (3d) 456, appeal affirmed on other grounds [2000] O.J. No. 3309; R. v. Klassen, [2003] M.J. No. 417 (Man. Q.B.). <a name="a12">[12] </a>Goudge Report, supra note 1 at 463. <a name="a13">[13] </a>Goudge Report, supra note 1 at 463, 509-511.

2009-11-16T17:04:49-05:00

Paper Presented At Federation of Law Societies National Criminal Law Program Victoria, British Columbia, July, 2009 Author: <a target="_blank" href="/criminal-defence-lawyers/mark-sandler">Mark J. Sandler</a> Point-Counterpoint: Should Experts Testify As Independent Sources of Information, Not as Witnesses on Behalf of the Party Who Calls Them? FOR THE AFFIRMATIVE: YES, THEY SHOULD The recent Inquiry into Pediatric Forensic Pathology in Ontario (“the Inquiry”) was prompted by the serious deficiencies in the work done and opinions rendered by Dr. Charles Smith, a renowned pathologist affiliated both with the Hospital for Sick Children in Toronto and with the Chief Coroner’s Office.  should-experts-testify-as-independent-sources-of-information-not-as-witnesses-on-behalf-of-the-party-who-calls-them

2009-07-17T00:00:00-04:00

Should Experts Testify as Independant Sources of Information, Not as Witnessess on Behalf of the Party Who Calls Them?

2009-11-25T13:44:23-05:00

1 Mr. Cooper, a graduate of Osgoode Hall Law School, was called to the Bar of the Province of Ontario in 1953 and has practiced as defence counsel in the field of criminal law since that date. He was appointed Q.C. in 1964. He is <a href="http://www1.lsuc.on.ca/specialist/jsp/detailinfo1.jsp?recordNumber=5">certified by the Law Society as a Specialist in Criminal Law</a> and has extensive experience as both a trial and appellate counsel. From 1997to 1998, he served as <a href="http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin/">Commission Counsel to the Commission on Proceedings involving Guy Paul Morin</a>. He is a Fellow of the <a href="http://www.actl.com">American College of Trial Lawyers</a> and the recipient of a number of professional awards: the Douglas Laidlaw Medal for Excellence in Advocacy, the G. Arthur Martin Award from the Criminal Lawyers’ Association of Ontario for his contribution to criminal justice (2000), the J.J. Robinette Medal for Excellence from the Osgoode Hall Law School Alumni Association (2003) and the Award of Excellence from the Metropolitan Toronto Lawyers’ Association for significant contribution to the growth of jurisprudence and the rule of law (2003). In 2005, he was awarded the Advocates’ Society Medal for his mastery of the art of advocacy. Mr. Cooper has written and lectured widely at law schools and legal conferences in the areas of advocacy, evidence and substantive criminal law. He was a founding member of the <a href="http://www.advocates.ca">Advocates Society</a> in Ontario and served as a Director of that Society. He is a member in good standing of the Canadian Bar Association and was, for several years, the Chair of the Civil Liberties Subsection. Mr. Cooper was elected by his peers as a Bencher of the <a href="http://www.lsuc.on.ca/">Law Society of Upper Canada</a> (the governing body of the legal profession in Ontario), and after serving from 1971 to 1987, was appointed as ex-officio Bencher for his lifetime. For 16 years, he was a director of the <a href="http://www.tarragontheatre.com/">Tarragon Theatre</a>, Toronto, and is currently a member of the Board of Governors of <a href="http://www.mountsinai.on.ca/">Mount Sinai Hospital</a>, Toronto.

2009-11-03T14:37:13-05:00

acooper@criminal-lawyers.ca 4164082372

Austin

Cooper

Austin Cooper, Toronto Criminal Lawyer - Cooper & Sandler LLP

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2009-11-04T09:57:04-05:00

1 B.A.,M.s.W,LL.B. COOPER, Austin Morley, Q.C., B. Com. LL.B.; barrister, born Toronto, Ontario, February 10, 1929; s. Bert and Esther Cooper; educated at University of Toronto Schools 1945; University of Toronto B. Comm. 1949; Osgoode Hall Law School (with honours) 1953 and awarded the Clara Brett Martin Scholarship; children: Peter Meredith, Douglas Anthony, Paul Warren; called to Bar of Ontario 1953; appointed Q.C. 1964; law practice Toronto since 1953; Counsel to the firm of Cooper & Sandler LLP; certified by the Law Society as a specialist in criminal law; Fellow of American College of Trial Lawyers; recipient of Douglas K. Laidlaw Medal for Excellence in Advocacy 1992; awarded G. Arthur Martin Criminal Justice Medal, 2000; awarded the J.J. Robinette Medal for Excellence by the Osgoode Hall Law School Alumni Association 2003; received the Metropolitan Toronto Lawyers Association Award of Distinction 2003; awarded Advocates Society Medal for Mastery of the Art of Advocacy 2006; lecturer in Wills and Trusts, Osgoode Hall Law School 1955-56; Law Society citation for significant contribution to governance of legal profession 1999; former lecturer and instructor, Bar Admission Course, Osgoode Hall Law School 14 years; counsel, Royal Commission on Fluoridation of Ontario Water Supplies 1960; elected Bencher, Law Society of Upper Canada 1971-87 and currently Ex-Officio Bencher; Director, The Tarragon Theatre, Toronto 1983-1999; founding member and former Director, Advocates Society; Canadian Bar Association (Chairman, Civil Liberties Subsection 1964-66); member Metropolitan Toronto Task Force on Public Violence Against Women and Children 1983-84; attended Harvard Law School Mediation Workshop 1996; Counsel, Commission on Proceedings involving Guy Paul Morin 1996-1997; recipient civilian citation from Metropolitan Toronto Board of Commissioners of Police 1984; lectured at Ontario Provincial Police Training Centre in Toronto and Brampton; lectured at Breathalizer Officers Training Course at Ontario Centre of Forensic Sciences in Toronto; lecturer and panelist at Canadian Bar Association/Law Society Advocacy Symposia 1982-90; faculty member, Intensive Trial Advocacy Course, Osgoode Hall Law School; delivered Bernard Cohn Memorial Lecture at University of Windsor Law School; panelist and lecturer at Canadian Bar Association Continuing Legal Education Programmes; panelist at Criminal Lawyers Association programmes; participant in Law Society Special Lectures to the Legal Profession; Panelist at Department of Justice Annual Prosecution Seminar 1996; Presenter at Chief Justice=s Colloquium on Professionalism 2005; Toronto Lawyers Club; Metropolitan Toronto Lawyers Association; Advocates Society; Criminal Lawyers Association; Canadian Bar Association; International Commission of Jurists; Bruce Trail Association; Pi Lambda Phi fraternity; Jewish; recreations; sailing, travel, music, art appreciation, walking; Home: Apt. 1624, 33 Harbour Square , Toronto, Ontario M5J 2G2; Office: Suite 1900, 439 University Avenue, Toronto, Ontario M5G 1Y8

2009-12-03T23:08:10-05:00

Mr. Sandler received his LL.B. from the Faculty of Law, University of Toronto in 1978. He was called to the Bar in 1980. He is certified by the Law Society as a Specialist in Criminal Law. He is a Fellow of the American College of Trial Lawyers. He is a Bencher of the Law Society of Upper Canada, and currently Chair, Appeals Panel and Tribunals Committee, He is also Chair of the Law Foundation of Ontario. His practice is primarily devoted to appellate and trial criminal litigation. He has served as counsel for six commissions or reviews, including the Goudge Inquiry (Pediatric Forensic Pathology), the Kaufman Inquiry (Guy Paul Morin), the Robins Review (Sexual Misconduct by Teachers), and the Minister of Justice’s s. 696 review into the Stephen Truscott case (Hon. Fred Kaufman Q.C.). He was counsel to the Honourable W. David Griffiths Q.C. respecting A Report to the Attorney General of Canada: Advice and Recommendations Respecting Certain Certificates of Analyst Issued by Health Canada and senior policy advisor to the Review of the Government Response to Institutional Abuse in Nova Scotia (Hon. Fred Kaufman Q.C., Chair). He has served as a member of the Criminal Law Specialty Committee, Law Society of Upper Canada, Specialist Certification Programme; was an Adjunct Professor at Osgoode Hall Law School from 1992 to 2005; previously co-chaired the Criminal Lawyers’ Association Annual Convention and Educational Programme for three years; and has written and lectured extensively on criminal law, evidence, procedure and advocacy. He co-authored (with the Honourable Madam Justice F. Weinper) Criminal Procedure: Cases, Notes and Materials, Butterworths 2nd Edition 2004. He has served as a Faculty member of the National Judicial Institute and currently serves as a Faculty member of the Federation of Law Societies annual Criminal Law Programme. Mr. Sandler was formerly a part-time member of the Human Rights Tribunal of Ontario. He is former National Chair and former Senior Counsel, B’nai Brith League for Human Rights, and as such, has appeared before the Supreme Court of Canada on issues relating to hate propaganda and hate-motivated crime.

2009-11-04T02:02:26-05:00

msandler@criminal-lawyers.ca 4164082372

Mark

Sandler

Mark J. Sandler, Toronto Criminal Lawyer - Cooper & Sandler LLP

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2009-11-06T00:01:44-05:00

2 LL.B. EMPLOYMENT HISTORY, QUALIFICATIONS AND APPOINTMENTS At present Partner, Cooper & Sandler LLP.Appellate and trial criminal litigation  Elected Bencher (two terms), Law Society of Upper Canada  Currently: - Chair, Appeals Panel - Chair, Tribunals Committee - Member, Working Group on Anti-Semitism  and other Forms of Hatred and Discrimination  Based on Religion  Formerly: - Member, Human Rights Monitoring Group - Member, Equity and Aboriginal Issues Committee  - Chair, Tribunals Composition Task Force - Vice-Chair, Tribunals Committee - Member, Professional Regulations Committee - Member, Certified Specialist Board - Member, Government Relations Committee  Elected Bencher American College of Trial Lawyers  Chair, Law Foundation of Ontario and Bencher appointed Trustee     February, 1999 -November, 2008  Part-time Member, Human Rights Tribunal of Ontario   April, 2007- October, 2008   Special Counsel (Criminal) to the Inquiry into Pediatric Pathology Ontario  The Honourable Mr. Justice Stephen Goudge, Commissioner  May, 2004 - October, 2006  Counsel to the Commissioner of Competition and Attorney General of Canada  Respecting the investigation and prosecution of major anti-competitive offences under the Competition Act  February, 2002 - April, 2004  Counsel to the Honourable Fred Kaufman Q.C. Concerning a legal opinion to the Minister of Justice respecting an application pursuant to section 690 of the Criminal Code by Steven Murray Truscott  May, 2003 - January, 2004 Consultant (with the Honourable W. David Griffiths) to Health Canada, Drug Strategy and Controlled Substance Programme   On policies concerning medical use of marijuana  February, 2002 - January, 2003 Counsel to the Honourable Sydney L. Robins Q.C. To assist in developing policies and procedures respecting alleged physical and sexual abuse or harassment for Upper Canada College  April, 2000 -  February, 2002 Senior Policy Advisor, A Review of the Government Response Response to Institutional Abuse in Nova Scotia The Honourable Fred Kaufman Q.C., Chair  April - May, 2001 Counsel to the Honourable W.David Griffiths Q.C., A Report to the Attorney General of  Canada: Advice and Recommendations respecting Certain Certificates of Analyst Issued by Health Canada  September, 1999 - April, 2000   Counsel, A Review to Make Recommendations to Identify and  Prevent Sexual Misconduct in Ontario Schools The Honourable Sydney L. Robins Q.C., Chair  August,1996 - April, 1998 Associate Commission Counsel, Commission on Proceedings Involving Guy Paul Morin The Honourable Fred Kaufman Q.C., Commissioner   1980 - May l985  Associate, Austin M. Cooper, Q.C. 1981    Appointed as Assistant Crown Attorney (part-time) by the Attorney-General of  Ontario  1980    Called to the Bar of the Province of  Ontario  1978 - 1979     Articling Student, Austin M. Cooper, Q.C.    1976 to 1977 Research Assistant, Commission on Freedom of Information and Individual Privacy Province of Ontario; Co-Author, Provisions in the Statutes and Regulations of the Province of Ontario Respecting the Non-Disclosure of Government Information: A Study for the    Commission on Freedom of Information and Individual Privacy    INTERNATIONAL CONSULTATIONS  Expert Consultant, Judicial Committee of the National Assembly, Vietnam On Proposed Amendments to the Vietnam Criminal Code, PIAP Project, funded by CIDA    Member, Canadian Advisory Committee, Jamaican Justice System Review Project Through the Canadian Bar Association International Development Program  EDUCATION  1975 - 1978     Bachelor of Laws, University of Toronto, Faculty of Law  1973 - 1975     University of Toronto, Philosophy and Political Science, Recipient, Innis College Scholarship (two years)   CERTIFICATIONS  1989 - Present   Certified by the Law Society of Upper Canada as a specialist in criminal litigation  1996 - 2004   Member, Criminal Law Speciality Committee,  Law Society of Upper Canada, Specialist Certification Programme        1999    Certified by Society of Adjudicators and Regulators (S.O.A.R.) TEACHING OR FACULTY POSITIONS  July, 2009 Faculty, National Criminal Law Program, Federation of Law Societies of Canada, Victoria, British Columbia July, 2008 Faculty, National Criminal Law Program, Federation of Law Societies of Canada, Charlottetown, Prince Edward Island  April, 2008 Faculty, Appellate Advocacy Program, Advocates' Society in conjunction with the Court of Appeal for Ontario  July, 2007 Faculty, National Criminal Law Program, Federation of Law Societies of Canada, Edmonton, Ontario  1993 - 2005 Faculty, Osgoode Hall Law School (part-time) Course: Criminal Procedure  (Sandler/Skurka)       - This course taught the effective use of criminal procedure by Crown and defence counsel, with an emphasis on the Charter  1992 - 1993   Faculty, Osgoode Hall Law School (part-time) Course: Administration of Criminal Justice (Hunt/Sandler/Skurka)      - This seminar course addressed the roles played by each of the  participants in the administration of criminal justice  June, 2004   Lecturer, Bar Admission Programme, Law Society of Upper Canada Criminal Procedure Section Topic: The Guilty Plea and Introduction to Sentencing  September, 2005  Faculty, National Judicial Institute Frailties in the Criminal Justice Process: The Judge's Role, Charlottetown, PEI  June, 2004   Faculty, National Judicial Institute Frailties in the Criminal Justice Process: The Judge's Role, Port Rexton, Newfoundland  December, 2003  Faculty, National Judicial Institute Frailties in the Criminal Justice Process: The Judge's Role, Banff, Alberta  December, 2002  Faculty, National Judicial Institute Conference on Judicial Safeguards for the Prevention of Wrongful Convictions  Winter, 2001   Lecturer, Bar Admission Programme, Law Society of Upper Canada, Criminal Procedure Section Topic: Appeals and Extraordinary Remedies  Spring, 2001   Lecturer, Bar Admission Programme, Law Society of Upper Canada, Criminal Procedure Section Topic: Judicial Interim Release  Fall, 2000   Lecturer, Bar Admission Programme, Law Society of Upper Canada, Criminal Procedure Section Topic: Judicial Interim Release  Fall, 1998   Lecturer, Bar Admission Programme, Law Society of Upper Canada, Criminal Procedure Section Topic: Overview of Criminal Procedure and Search/Seizure  1986 - 1987   Instructor, Bar Admission Programme, Law Society of Upper Canada, Criminal Procedure Section  Also Mentor, Criminal Intensive Programme, Osgoode Hall Law School and Participant, Law Society of Upper Canada Advisory Mentor Program for a number of years    PROGRAMME CHAIRS  Spring, 2009   Co-chair, Osgoode Hall Law School Professional Development and Centre for Forensic Science and Medicine, University of Toronto Programme on Expert Forensic Evidence in Criminal Proceedings:  Avoiding Wrongful Convictions  Winter, 2009   Chair, Law Society of Upper Canada Educational Programme on Evidentiary Challenges for Criminal Lawyers  Fall, 1998   Co-chair, Criminal Lawyers' Association Convention and Education Programme, The Defence Never Rests: Innovative Approaches to Persistent Problems  Fall, 1997   Co-chair, Criminal Lawyers' Association Convention and Education Programme, Witness for the Prosecution, Successful Impeachment Strategies  Fall, 1996   Co-chair, Criminal Lawyers' Association Convention and Education Programme, Twenty Five Years Advocating Excellence  1994    Chair, Symposium on the Legal Remedies for Hate Crimes (for law enforcement personnel, legislators, human rights agencies and groups, and prosecutors), sponsored by the League for Human Rights of B'nai Brith Canada.  Also Editor of Symposium Materials and Author of  Briefing Materials for Faculty  1988    Chair, Canadian Bar Association of Ontario  Seminar on Evidence for  Young Lawyers' Division  BOOK Criminal Procedure: Cases, Notes and Materials (with The Honourable Madam Justice Fern Weinper), BUTTERWORTHS, 2nd Edition (2004); 1st Edition (1997)  PAPERS, LECTURES, AND PRESENTATIONS  February, 2010 Panellist, 2010 OBA Institute - Criminal Law:  The Ulimtate Guide to Running a Trial Topic of Presentation and Paper:  How to Approach an Opening and Closing Address   February, 2010 Panellist, National Judicial Institute, Innovative Criminal Trial Management    Topic:  Innovative Use of Experts February, 2010 Planning Committee, Third Biennial Conference on Combatting Hatred in the Twenty-first Century:  Legal Remedies, Also Presenter (with Powerpoint) on the Use of the Criminal Code to Combat Hate; Panellist on same topic; Panellist on Sentencing for Hate Motivated Crime January, 2010 Presenter, Osgoode Hall Law School, LL.M. Programme in Crminal Law Topic:  Expert Testimony Post- Goudge Inquiry December, 2009 Panellist, Osgoode Professional Development CLE, Course in Prosecuting and Defending Professional Discipline Cases  Topic:  Conduct of the Hearing:  Effective Advocacy November, 2009 Presenter, Centre for the Legal Profession and University of Toronto Faculty of Law, Intensive Week on Legal Ethics and Professionalism for First Year Class Topic:  The Law Society as Regulator October, 2009      Presenter, Adjudicator orientation Session,, Law Society of Upper Canada  Topics:  The Conduct of the Hearing - Best Practices; Overview of the Rules of Practice and Procedure; The Appeal Panel as Administrative Tribunal October, 2009         Presenter, Teleseminar on Preserving and Protecting Your Client's Confidentiality, Law Society of Upper Canada  October, 2009        Presenter, 2nd Law Society of Upper Canada Discipline Forum, The New Rules of Practice and Prcocedure:  A View from the Hearing Panel May, 2009   Osgoode Hall Law School Professional  Development and Centre for  Forensic Science and Medicine, University of Toronto, Programme on Expert Forensic Evidence in Criminal Proceedings: Avoiding Wrongful Convictions Panellist, Reflections Learned and Challenges Going Forward Panellist, The Steven Truscott Case Part II: The Legal Perspective and Lessons Learned  March, 2009   Advocates' Society, Programme on Advanced  Trial Evidence:  Practical Problems, Real Solutions  Topic: Hearsay: What does it really mean?  February, 2009  Law Society of Upper Canada, Discipline Forum, Panellist Topic: The Adjudicator's Perspective  January, 2009   OBA 2009 Institute, Criminal Law Programme on The Charter: The Practical Perspective Topic and Paper (co-authored with Corie Langdon): Update on Recent Charter Cases  December, 2008  Judicial Committee of the National Assembly Workshops on Proposed Amendments to the Vietnam Criminal Code, Ho Chi Minh City, Vietnam Papers (and related presentations): Canadian Approaches to Terrorism, Organized Crime and International Offences Canadian Approaches to White Collar or Commercial Crimes, Part I: Introduction Canadian Approaches to White Collar or Commercial Crimes, Part II  Additional Workshop on Proposed Amendments to the Vietnam Criminal Code  November, 2008  Competition Bureau, Criminal Branch Seminar, Ottawa, Ontario  Powerpoint and Presentation on Strategies for Drafting Complex Search Documents  August, 2008   Canadian Bar Association Canadian Legal Conference, Quebec City, Quebec Panellist, Media in the Courtroom: Access to the Court File, Privacy and the Right to a Fair Trial  July, 2008   National Criminal Law Program, Federation of Law Societies of Canada, Charlottetown, Prince Edward Island Papers (and related presentations): Procedure on s. 276 Applications   Advocacy Before a Jury: The Defence Addition Panel Topic: s. 24(2) of the Charter: A Moving Target?  February, 2008  Panellist, University of Toronto, Faculty of Law, Truth, Justice and Public Inquiries The Morin Inquiry  July, 2008   Presenter, The Canadian Institute Conference on Litigation against the Crown Topic: Public Inquiries  November, 2007  Presenter, Conference on Combating Hatred in the 21st Century, Balancing Rights, Freedoms and Responsibilities  Panel Topic: The Justice System Responds   July, 2007   National Criminal Law Program, Federation of Law Societies of Canada, Edmonton, Ontario Papers: The Lawyer's Duty of Confidentiality Terrorism Offences  Additional Panel Topic: Recent Decisions of the Supreme Court of Canada  March, 2007   Presenter, OBA 9th Annual Central East Advocacy Conference on Focused Advocacy - Making Trials Affordable  Topic: The Advantages of Focused Advocacy  February, 2007  Panellist, Advocates' Society Criminal Litigation Skills Litigation Program on Cross-Examination of Fact and Expert Witnesses February, 2007  Panellist, University of Toronto, Faculty of Law, Truth, Justice & Public Inquiries Topic: Process and Justice: Ipperwash  February, 2007  Panellist, Ontario Bar Association Institute of Continuing Education on the Ultimate Guide on Hearsay and Voluntariness Topic: The View: A Question and Answer Guide To Hearsay and Voluntariness  January, 2007   Presenter, Osgoode Hall Law School Master of Laws Program (Criminal Law)  Topic: Jailhouse Informants  November, 2006  Panellist, Criminal Lawyers Association Convention and Educational Programme  Topic: Trying on New Briefs: Public Inquiries, Inquests and Amicus Curae  May, 2006   Panellist, The American College of Trial Lawyers and the Advocates' Society Spring Symposium Topic: Developments in the Law of Privilege   April, 2006   Presenter, The Law Society of Upper Canada and the League for Human Rights of B'nai Brith Canada Programme, Hate on the Internet v. Freedom of Expression  Topic: Eliminating Online Propaganda of Racial and Religious Hatred  April, 2005   Lecturer, Ontario Provincial Police Educational Programme on Search Warrants  Topic: Attacking Search Warrants  April, 2005   Instructor, Appellate Advocacy Programme, The Advocates' Society   January, 2005   Presenter, the Advocates Society, Criminal Litigation Skills Certificate Program: Motions that Win Cases   Panellist respecting various evidentiary and tactical issues concerning pre-trial motions   October, 2004   Presenter, The Advocates Society and the Criminal Lawyers' Association, Defending a Domestic Assault Case  Panellist on Various Legal Issues Conducted a Mock Cross-examination   April, 2004           Presenter, Osgoode Hall Law School  Professional Development Program, Continuing Legal Education, Evidence Workshop: A Practical Course for Common Trial Evidentiary Issues Topic: Hearsay: The Principled Approach Since R. v. Starr  Paper: “Starr-Struck”: The Current Framework For Hearsay Admissibility  November, 2003  Presenter, Criminal Lawyers' Association 2003 Fall Conference, Criminal Law in a Changing World  Topic: Changes to Preliminary Inquiry and Defence Disclosure   October, 2003   Presenter, The Law Society of Upper Canada, 2nd Annual The New Lawyer Experience  Topic: Criminal law  May, 2003   Presenter, The Hamilton Criminal Lawyers Association Seminar, Hamilton, Ontario  Topic: Recent Developments in the Law  May, 2003   Presenter, Ontario Judges Conference, Windsor, Ontario  Topic: Reasons for Judgement: An Analysis of Errors identified by Ontario Appellate Courts in Reasons for Judgement (January, 2002 to April 30, 2003)  May, 2003   Presenter, CLASP Training Session 2003: Ethics and Professional Responsibility (for legal aid clinic law students),   May, 2003   Presenter, Canadian Life and Health Insurance Association Inc., 2003 Compliance Section, Annual Conference, Quebec City, Quebec  Topic: Forgery and Fraud   April, 2003   Faculty, The Law Society of Upper Canada,  Special Lectures 2003:  The Law of Evidence Topic of Presentation: The Objectives of Cross-Examination (with  A.Cooper)  Paper: same as above  February, 2003  Presenter, The Law Society of Upper Canada Continuing Legal Education Programme, Plea Negotiations: Achieving A “Win-Win” Result Topic: Negotiating Techniques: Getting to “Yes”     January, 2003   Presenter, The Law Society of Upper Canada Continuing Legal Education Programme, What Civil Litigators Need To Know About Criminal Law  Topic: Staying Civil or Administrative Proceedings Pending Criminal Proceedings  December, 2002  Presenter and Facilitator, National  Judicial Institute, Judicial Safeguards For The Prevention of Wrongful Convictions  Topic of Presentation: Suspect Evidence  May, 2002   Presenter, Bar Admission Programme, Law Society of Upper Canada, Professional Responsibility Section, Videotape on Ethical Advocacy and Civility  March, 2002   Speaker, York Region Law Association Dinner  Topic: Advocacy: The Good, the Bad and the Ugly  January, 2002   Panellist, Ontario Bar Association 2002 Institute of Continuing Legal Education: Criminal Law Update 2002 Topic: Sentencing Developments  Paper (with L. Kaufman): Getting the Best Result: The Effective and Persuasive Sentencing Package  November, 2001  Panellist, CSFS 2001: A Forensic Odyssey, Canadian Society of Forensic Science Conference, Plenary Session  Topic: The Campbell and Kaufman Reports: Transformation of the Justice System  November, 2001  Panellist, 13th Annual Conference of Ontario Boards and Agencies, Society of Adjudicators and Regulators Topic: Assessing Credibility   June, 2001   Speaker, Seminar for Legal Counsel to the Office of the Public Guardian and Trustee, Ministry of the Attorney General  Topic: The Duties and Obligations of the Public Guardian and Trustee Respecting Physical Evidence of Criminality   June, 2001   Address to the Association of Women Lawyers, Calgary, Alberta  Topic: Defence Counsel's Dilemma   April, 2001   Instructor, Appellate Advocacy Programme,  The Advocates' Society   April, 2001   Speaker, Central East Advocacy Conference on Credibility, Canadian Bar Association (Ontario Branch), Lindsay, Ontario  Topic: Learning from Our Past Mistakes   January, 2001   Address to Canadian Bar Association (Alberta Branch) Mid-Winter Meeting, Edmonton, Alberta Topic: Incriminating Evidence in the Possession of the Defence: R. v. Murray Also Panellist for Criminal Section  Topic: The Best Defence is a Good Offence: Defence Motions  November, 2000 Keynote Address,4th Annual Conference, The Continuing Legal Eucation Society of Nova Scotia and the Nova Scotia Criminal Lawyers'   Association on The Morin Inquiry: Have We Learned Anything, Halifax, Nova Scotia Topic: The Wrongful Conviction of Guy Paul Morin: What Went Wrong,  Also Presenter November, 2000  Presenter, Criminal Lawyers' Association Annual Convention and Educational Programme, Defence of the Defence Bar: Ethical and Evidentiary Issues in a Changing Justice System Topic: Crimes Without Borders October, 2000 Presenter, Connecting Communities With Counsel, Orientation Session, Law Society of Upper Canada Topic: Pro Bono Work  October, 2000 Presenter, Recent Developments in the Law of Privilege, Canadian Bar Association Continuing Legal Education, Topic of Paper: Overriding Solicitor-Client Privilege: A Brief Introduction October, 2000  Developments in Criminal Law: The 1999-2000 Term, (2000), 13 Supreme Court Law Review (2nd Series) 167 (with Christopher Sherrin) September, 2000 Presenter (with Mr. Justice David Watt and Robert Clark), Osgoode Hall Law School Professional Development Programme, Criminal Intelligence: Critical Information for the Prosecution, the Defence and the Police Topic: How to Prepare a Charge to the Jury April, 2000 Presenter, Ontario Court of Justice, Regional Judges' Seminar, Toronto, Ontario Topic: Vulnerable Witnesses: Procedural and Evidentiary Considerations April, 2000 Presenter, York Regional Police Force, Seminar on Surveillance Techniques for officers from various Ontario police forces) Topic: Use of Notebooks and Videotaping January, 2000 Speaker, Temple Emanu-El, Toronto Topic: Humour in the Courtroom Fall, 1999 Developments in Criminal Procedure: The 1998-99 Term, (2000), 11 Supreme Court Law Review (2nd Series) 307 Spring, 1999 Faculty, Appellate Courts Seminar, National Judicial Institute Topic of Paper: Lessons for Appellate Courts from the Morin Inquiry Spring, 1999  Instructor, Appellate Advocacy Program, Ontario Centre for Advocacy Training Spring, 1999 Presenter, Superior Court of Justice, Central East Regional Meeting, Alliston, Ontario Topic of Paper: Lessons for Trial Judges from the Morin Inquiry Spring, 1999 Presenter, Manitoba Queen's Bench Seminar, Gimli, Manitoba Topic of Paper: Lessons for Trial Judges from the Morin Inquiry Winter, 1999  Presenter and Facilitator, Second International Symposium on Hate on the Internet, sponsored by B'nai Brith Canada and the Law Society of Upper Canada Fall, 1998  Presenter (with the Honourable Mr. Justice Marc Rosenberg), Criminal Lawyers' Association Convention and Education Programme Topic of paper: The Lessons of the Morin Inquiry Part II--Jailhouse Informant Evidence Fall, 1998   Presenter, Ontario Judges Association Regional Educational Seminar, Toronto Topic: The Impact of the Kaufman Report on Criminal Trial Proceedings Spring, 1998  Presenter, Federated Press Conference on Mastering the Art of Cross- Examination, Topic of paper: Cross-examining the Eyewitness Spring, 1998  Presenter, Canada Watch, Osgoode Hall Law School Professional Development Programme 1997 Constitutional Cases-- An Analysis of the 1997 Constitutional Decisions of the Supreme Court of Canada Topic: The Charter and Criminal Law Summer, 1998  Presenter, Department of Justice Annual Prosecutor's Conference, Toronto Topic: Are there Morin problems in Federal Prosecutions Fall, 1997 Presenter, Criminal Lawyers' Association Convention and Education Programme Topic of paper: Getting Out From Behind the Section 8 Ball: How to Approach the Section 8 Charter Witness Fall, 1997  Presenter, Law Society of Upper Canada, Continuing Legal Education Department, Programme entitled Criminal Trial Workshop Topic: Pre-Trial Preparation Fall, 1996   Presenter (with Marlys Edwardh), Criminal Lawyers' Association Convention and Education Programme Topic of paper: Eyewitness Identification Second paper: The Accused's Bad Character Spring, 1996  Presenter, Criminal Lawyers' Association Spring Convention and Education Programme, The Anatomy of a Provincial Court Trial, Topic: The Crown's Case Summer, 1996 Presenter, Law Society of Upper Canada, Bar Admission Programme, Advocacy Unit, A Mock Cross-examination Spring, 1996  Presenter, International Hate Propaganda-Hate/Bias Motivated Crime Symposium, Durham Regional Police Learning Centre, Durham College, Oshawa, Ontario Topic: Legal Considerations [in investigating and prosecuting hate crimes 1996 Presenter, Securities Forum, '96, Insight Conference Topic: Current Issues in Enforcement (Implications of B.C. Securities Commission v. Branch et al.) 1996  Contributor, Wellesley Hospital's protocol development on treatment of victims of violence against gays and lesbians (in partnership with 519 Church St. Community Centre) 1995  Presenter, Criminal Lawyers' Association Convention and Education Programme, Pinocchio's Nose in the Courtroom: Truth, Deception and Credibility Judgements Topic of paper (with C. Sherrin): Giving Credit Where Credit is Due(or Not)- Credibility and the Art of Persuasion 1995 Keynote Address, Canadian Association of Statutory Human Rights Agencies Annual Conference, What is the Role of Statutory Human Rights Agencies in Responding to Hatred, Winnipeg, Manitoba Topic: An Overview of Organized Hatred in Canada 1995   Witness, the Standing Committee on Legal and Constitutional Affairs, the Senate of Canada respecting Bill C-41 1995 Presenter, Securities Forum, '95, Insight Conference, Topic: Current Issues in Enforcement 1995 Witness, the Standing Committee on Justice and Legal Affairs, House of Commons respecting Bill C-41 1995  Lecturer, Jewish Law Students Association Convention Topic: Bill C-41 and Related Issues 1995 Presenter, The Young Leadership Network, League for Human Rights of B'nai Brith Canada Topic: White and Black Supremacists: Alliance of Fear 1995 Lecturer, Metropolitan Toronto Police Force, 52 Division, Toronto, Ontario Topic: The Investigation of Hate Motivated Crimes  1994 Presenter, Law Society of Upper Canada, Continuing Education Programme, Hot Topics for Criminal Lawyers Topic: Essential Forensics--Forging Ahead in Handwriting Analysis 1994 Presenter, Symposium on the Legal Remedies for Hate Crimes, sponsored by the League for Human Rights of B'nai Brith Canada Topic: Obtaining Deterrent Sentences Second Topic: Techniques for Successful Prosecution Third Topic: Criminal Law Responses to Hate Crimes Demonstrator, mock cross-examination 1994 Presenter, Forum on Confronting Hate, Affirming Diversity, sponsored by the Town of Markham and the Ontario Anti-Racism Secretariat, Ministry of Citizenship Topic: A Legal Response to Hate Group Activities 1994 Faculty, Ontario Centre for Advocacy, A Joint Project of the Law Society of Upper Canada and the Advocates' Society, Appellate Advocacy Programme 1994 Lecturer, Seminar on Racism and Anti-Semitism for the Hate Crime Unit of the Metropolitan Toronto Police Force  Topic: Expert Evidence 1994 Presenter, Criminal Lawyers' Association and the New York State Association of Criminal Defence Lawyers Joint Conference on Cross Border Advocacy, New York City, New York Topic: Addressing the Jury 1994 Presenter and Co-Facilitator, Racism and Cultural Awareness Training Programme, Prosecutors' Division, Saskatchewan Justice, Prince Albert, Saskatchewan Topics: Effective Prosecution of Hate Motivated Crimes Legal Remedies to Combat Hate Racial, Ethnic, Cultural Issues for Prosecutors. Focus on Aboriginal community. 1994 Presenter, Ontario Police College Hate Propaganda and Hate/Bias Motivated Crimes Symposium  Topic: Legal Considerations (The Use of the Criminal Code and other Statutes to Combat Hate Crimes) 1994 Lecturer, Queen's University Faculty of Law  Topic: Hate Motivated Crimes 1994 Co-Author, Brief presented to the Government of Canada by B'nai Brith Canada on Nazi War Criminals and Hate Activity in Canada 1994 Speaker, Jewish Law Students Association Convention, Debate with Clayton Ruby  Topic: Section 2(b) of the Charter and the constitutionality of hate propaganda offences (Debated this issue in various forums and with various individuals, including Alan Borovoy, Canadian Civil Liberties Association) 1993 Presenter, Law Society of Upper Canada Continuing Legal Education Programme, Criminal Law and the Charter: An Essential Update  Topic: Recent Developments under Sections 8 and 9 of the Charter 1993 Lecturer, Dr.Bernie Vigod Fourth Memorial Lecture, delivered at the University of New Brunswick, Fredericton, New Brunswick (43 U.N.B.L.J. 269) Topic: Hate Crimes and Hate Group Activity 1993 Principal Advisor, Study on the Victim Impact of Racially Motivated Crimes, conducted for the Commission on Systemic Racism in the Ontario Criminal Justice System. Also made oral submissions to the Commission. 1993 Presenter, Canadian Bar Association of Ontario, Institute of Continuing Legal Education Topic: What Every Family Law Lawyer Needs to Know About Criminal Law 1993 Presenter, Toronto Mayor's Committee on Community and Race Relations, Topic: Victim Impact of Racially Motivated Crimes and Legal Recommendations (also briefed Metro Councillors on the legal remedies to combat hate) 1992 Presenter, Law Society of Upper Canada Continuing Education Programme on the Criminal Proceedings Rules Topic: Summary Conviction Appeals 1992 Lecturer, Crown Attorneys' Office, Ministry of the Attorney-General, Newmarket, Ontario Topic: The Conduct of a Bail Hearing by the Crown 1992 Presenter, Symposium on Racism, Hate Crimes and the Law, sponsored by the Canadian Anti- Racism Education Research Society, Vancouver, British Columbia Topic: The Justice System 1992 Presenter, Symposium on Equality and Justice: The Implications for Canada of the Rise of Racism, Anti-Semitism and Xenophobia in Europe and North America sponsored by a joint committee of the Anti-Racism and Human Rights Network and the League for Human Rights of B'nai Brith Canada Topic: Equality, Justice, Policing and the Law 1992 Lecturer, Seminar on Racial, Ethnic and Cultural Equity sponsored by the Western Judicial Education Centre, and the Saskatchewan Provincial Judges' Association and the College of Law, University of Saskatchewan, Saskatoon Topic: Introducing Hate Groups, Hate Propaganda and Racially Motivated Crimes to Provincial Judges. Also, presenter on panel addressing racial, ethnic and cultural issues arising in the justice system 1992 Presenter, Canadian Bar Association of Ontario, Legal Education Programme, The New Battlefield for Litigators, Criminal Law Invades the Boardroom 1992 Presenter, Criminal Lawyers' Association and the Ontario Crown Attorneys' Association Education Programme on Disclosure: How to Get it and How to Use it 1991 Presenter, Department of Justice Third Annual Conference on Human Rights and the Charter Topic of paper: Post-Charter Consideration of [R. v.] Sault Ste. Marie 1991 Presenter, Conference on Anti-Semitism around the World, sponsored by the Anti-Defamation League of the B'nai Brith in cooperation with the League for Human Rights of B'nai Brith Canada Topic: The Use of Criminal Law to Combat Hate 1989 Presenter, Criminal Lawyers' Association and Ontario Crown Attorneys' Association Seminar on Trial by Judge Alone 1987 Presenter, Canadian Bar Association--Ontario, Continuing Legal Education and Young Lawyers' Division Seminar on Practical Issues and Considerations in Criminal Law Topic of paper presented: Defending an eyewitness identification case DESCRIPTION OF PRACTICE Practice devoted to appellate and trial criminal and quasi-criminal litigation, with some emphasis now on commercial crime and regulatory offences. As well, from 1995 to 2008, have acted as commission counsel, review counsel or senior policy advisor on a series of public inquiries/reviews. Also, counsel for complainants in criminal cases (for example, in opposing release of records to defence) or in related proceedings. As part-time Assistant Crown Attorney, appeared in the Provincial Ccourt and Youth Court many times (Newmarket, Downtown Toronto, Scarborough and Brampton) and in the Superior Court of Justice. Recently acted for the Commissioner of Competition and the Department of Justice in the prosecution of anti-competitive offences. Also provided legal opinions to governmental and non-governmental entities in Canada and internationally on topics relating to criminal law, ethical issues, or hate motivated crime. TRIBUNALS OR COURTS Appearances before the following tribunals or courts: Supreme Court of Canada Ontario Court of Appeal Ontario Divisional Court Federal Court of Appeal Federal Court Superior Court of Justice and predecessor courts Ontario Court of Justice and predecessor courts Youth Court Provincial Offences Court (respecting securities offences or other provincial offences) Coroner's Court Toronto Stock Exchange Law Society of Upper Canada, Discipline Committees and Convocation (before election as Bencher) College of Pharmacists Alcohol and Gaming Commission of Ontario Ontario Judicial Council (and served as panel member) Justices of the Peace Review Council Ontario Securities Commission Inquiries constituted under the Ontario Public Inquiries Act Institute of Chartered Accountants of Ontario United States District Court MEMBERSHIPS IN PROFESSIONAL ORGANIZATIONS Advocates' Society Canadian Association of Law Teachers Ontario Bar Association Criminal Lawyers' Association Toronto Lawyers' Association York Region Law Association  COMMUNITY INVOLVEMENT Present Chair and Trustee, Law Foundation of Ontario   1991 - 1995[1] Senior Counsel, League for Human Rights of B'nai Brith Canada. The League is a non-profit agency dedicated to combatting racism and bigotry, through educational programming, community action and the provision of legal advice and interventions. National Chairman, League for Human Rights of B'nai Brith Canada. While National Chairman, the League received the Minister of State for Multiculturalism and Citizenship's Award for Excellence in Race Relations, the first non-profit organization to do so. Held various other positions in the past: Member, District Administrative Board, B'nai Brith Canada Chair, National Legal Committee Member, National Cabinet, League for Human Rights Member, Central Region Cabinet In various capacities: -appeared as counsel on behalf of the League in interventions before the Supreme Court of Canada -supervised or consulted with counsel on behalf of the League respecting proceedings before the Supreme Court of Canada, Ontario Court of Appeal, Federal Court of Canada, human rights tribunals, commissions of inquiry, civil actions, and immigration or deportation hearings relating to the League's mandate   -been consulted by numerous Crown counsel and law enforcement personnel respecting the investigation and prosecution of hate motivated activity  -authored or supervised the preparation of position papers, briefs, studies commissioned by government, and a number of publications relating to the League's mandate -advised many government agencies (municipal, provincial and federal) in relation to human rights issues, hate group activity and, most particularly, the use of legislation to combat hate -participated as a lecturer, presenter, facilitator, or panellist on over 150 occasions on a variety of topics, examples of which are earlier noted -also active on many human rights projects, unrelated to legal or legislative issues. Some examples follow: Co-originated The Canadian Student Human Rights Achievement Awards (a programme which engaged students in human rights projects across the country) The Annual Media Human Rights Awards (which award media excellence in sensitizing the public on human rights issues). In 1994, chaired the awards which also honoured The Honourable Bertha Wilson. The Holocaust and Hope National Educators' Symposia and the Michael Kleinberg Memorial Lecture (which taught educators about the holocaust) The "Diversity and Unity" pin campaign (which counteracted a racist pin campaign originating in Western Canada) A community liaison programme (bringing together members of the Jewish community with other communities. The programme included a Black-Jewish and Moslem-Jewish dialogue) Other community activities include: Former Vice-President, Member of Executive and the Social Action Committee at Temple Emanu-El, North York, Ontario. Co-originated Social Action Day, held to sensitize children and adults to issues of social concern. In 1995,facilitated the seminar on persons with disabilities and in 1996, taught young children how to recognize and deal with stereotypes and bigotry. Member, Co-ordinating and Steering Committee, Coalition Against Child Poverty  AWARDS AND DISTINCTIONS Recipient, Outstanding Pro Bono Legal Services Award by the Young Lawyers' Section of the Canadian Bar Association Recipient, Label A. Katz Young Leadership Award by B'nai Brith International, Washington, D.C. for contributions in the field of human rights Recipient, Certificate, Metropolitan Toronto Police Force for contributions relating to human rights and anti-racism   PERSONAL Interests include classical and jazz piano, hockey (formely in-line coach and player), and theatre

2010-02-18T16:23:04-05:00

Leslie Kaufman is a partner at Cooper & Sandler LLP and is Certified by the Law Society as a Specialist in Criminal Law.  Ms. Kaufman graduated from the Faculty of Law at McGill University with both civil and common law degrees. She completed her articles with the Crown Law Office (Criminal) and was called to the Ontario Bar in 1997.  Ms. Kaufman joined Cooper & Sandler LLP in 2001 after being a sole practitioner from 1997 to 2001.  Ms. Kaufman has also been a frequent speaker at the Law Society of Upper Canada on a variety of criminal law related issues.  Since joining Cooper & Sandler LLP, Ms. Kaufman has regularly appeared before the courts on a wide variety of criminal and quasi-criminal matters, including homicides, large scale frauds, sexual assaults, domestic assaults and drug offences.  From 2001 to 2005 Ms. Kaufman served as a Trustee of the Toronto Lawyers Association and in June of 2009 she was elected to the Board of Directors of the Red Door Family Shelter.

2009-11-04T02:01:16-05:00

lkaufman@criminal-lawyers.ca 4164082372

Leslie

Kaufman

Leslie A.Kaufman, Toronto Criminal Lawyer - Cooper & Sandler LLP

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2009-11-05T23:59:40-05:00

3 B.A., B.C.L., LL.B. EDUCATION AND PROFESSIONAL DESIGNATIONS 1997 Call to the Bar: Ontario  1995       McGill University: Faculty of Law, National Program, B.C.L. and LL.B 1993       London School of Economics: three week intensive course in Criminal Justice Policy 1991       University of Ottawa: Honours Bachelor of Social Science degree in Criminology, magna cum laude 1989       Queen's University: Bachelor of Arts (psychology) EMPLOYMENT HISTORY AND PROFESSIONAL QUALIFICATIONS July 2008-present   Partner, Cooper & Sandler * Designated as a specialist in criminal litigation by the Law Society <of upper="" canada=""></of> 2001-July, 2008       Associate, Cooper, Sandler & West 1997-2001                 Sole Practitioner 1995-1996                 Ministry of the Attorney General of Ontario: Crown Law Office Criminal: Student-at- Law Summer 1994           Ministry of the Attorney General of Ontario: Office of the Official Guardian (now the Children's Lawyer). 1993-1994                 McGill Legal Information Clinic: Co-Director PROFESSIONAL DEVELOPMENT AND EXTRA-CURRICULAR ACTIVITIES June 2009                 Board of Directors: Red Door Family Shelter March 2009               Volunteer for Elizabeth Fry Society; offer pro bono legal services to women experiencing homelessness February, 2009          Law Society of Upper Canada: Participant in filmed roundtable discussion relating to issues of professional responsibility. October, 2008           Chair, Law Society of Upper Canada Teleseminar: Withdrawal of Counsel 2002 - 2005               Trustee, Toronto Lawyers Association 1998 -2005                 Gale Cup Moot Committee Member 1994-1995                 Student member, McGill University Board of Student Discipline 1994-1995                 Law Student Association: Faculty Council Representative 1994-1995                 Teaching Assistant: Criminal Law 1994-1995                 Teaching Assistant, Faculty of Law, Legal methodology, research & mooting course   AWARDS AND DSTINCTIONS June, 1995               Scarlet Key Award, McGill University for "Outstanding Leadership and Contribution to the McGill Community" June, 1995                 Graduating Student Award, McGill Law Student's Association May, 1992                   Justice Harry Batshaw Prize for highest standing in Foundations of Law course May, 1991                   A+ Excellence Scholarship, University of Ottawa MEMBERSHIPS IN PROFESSIONAL ORGANIZATIONS Criminal Lawyers Association  Ontario Bar Association

2009-12-03T23:10:05-05:00

Jonathan Shime joined Cooper & Sandler LLP as an articling student in July 2000 and is now a partner with the firm. He represents clients before the Ontario Court of Appeal and the Superior and Ontario Courts of  Justice on a wide variety of criminal and quasi-criminal charges, including homicides, frauds, drinking and driving offences, sexual assaults, domestic assaults and offences under the Controlled Drugs and Substances Act, and the Income Tax Act. Jonathan also assists individuals and corporations charged under the regulatory statutes, including the Income Tax Act and the Occupational Health and Safety Act. He has chaired or been a panelist at several conferences/seminars on criminal law related topics, including the Youth Criminal Justice Act and drinking and driving offences. Jonathan served as a staff lawyer to the Honourable Mr. Justice Stephen Goudge on the Inquiry into Pediatric Forensic Pathology in Ontario and as criminal review counsel at Downtown Legal Services, a community legal clinic operated by the University of Toronto Law School.  He is currently a member of the Ontario Working Group on Criminal Law and HIV Exposure.

2009-11-04T01:57:44-05:00

jshime@criminal-lawyers.ca 4164082372

Jonathan

Shime

Jonathan A. Shime, Toronto Criminal Lawyer - Cooper & Sandler LLP

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2009-11-05T23:57:55-05:00

4 B.A., LL.B. Partner (since 2008) Education  Bar Admission Course, Law Society of Upper Canada, 2002 Osgoode Hall Law School - LL.B. Class of 2000 McGill University, 1993 - Honours B.A. in Political Science University of Toronto, 1996 - Basic Mandarin Hebrew University in Jerusalem, 1992 - Political Science Employment July, 2008 - Present - Partner, Cooper & Sandler LLP Represent clients before the Ontario Court of Appeal, Superior Court and Ontario Court of Justice, including bail hearings, trials and appeals under the Criminal Code, Controlled Drugs and Substances Act and Youth Criminal Justice Act Applications on behalf of clients pursuant to the Canadian Charter of Rights and Freedoms February 2002 -June, 2008 - Associate, Cooper & Sandler LLP Represent clients before the Ontario Court of Appeal, Superior Court and Ontario Court of Justice, including bail hearings, trials and appeals under the Criminal Code, Controlled Drugs and Substances Act and Youth Criminal Justice Act Applications on behalf of clients pursuant to the Canadian Charter of Rights and Freedoms  July 2000 - July 2001 - Articles of Clerkship, Cooper Sandler & West  Assisted in the drafting of facta for the Ontario Court of Appeal and the Superior Court of Justice Appeared regularly on behalf of clients before the Ontario Court of Justice Assisted in all aspects of case management including intake interviews, bail hearings, legal research and trial preparation April 1999 -Aug 1999 - Research Assistant, Osgoode Hall Law School’s Innocence Project Co-researched and drafted a successful application for intervention at the Supreme Court of Canada, assisted with preparation of factum for counsel’s legal argument before the Court May 1998 -Apr.1999 - Administrative Law Division Leader, C.L.A.S.P. Appeared before the Social Assistance Review Board and the Health Professions Board and made oral and written submissions, mediated at the Ontario Human Rights Commission Responsible for all aspects of case management, including intake interviews, legal research, negotiations and advocacy, caseworker in the Criminal and Immigration Divisions June 1996 - July 1997 - Community Development Worker, Keith Whitney Homes Society Assisted the homeless in finding and maintaining permanent housing, protected clients’ rights through the use of the Ontario Human Rights Code and the Landlord and Tenant Act Representative to the Advocacy Working Group, which advocated politically for the rights of the homeless June 1994 -March 1996 - Child and Youth Worker, Treatment Counselor, Jerome Diamond Adolescent Centre Member of clinical team servicing multicultural youth with emotional and psychological difficulties Member of CUPE and workshop representative to Labour-Management Committee March 1990 -July 1990 - Administrator, English Teacher - English Express (Prague) Taught in entrepreneurial English School for students and professionals. Extracurricular Activities and Community Involvement 1999-2000 - Gale Cup Team Member, National Champions, Osgoode Hall Law School One of four students selected to represent Osgoode Hall at National Criminal Law Mooting Competition 1999-2000 - Sopinka Cup Team Member, Osgoode Hall Law School One of two students selected to represent Osgoode Hall at National Trial Advocacy Competition in Ottawa, Ontario 1999-2000 - Arnup Cup Team Member, Osgoode Hall Law School One of two students selected to represent Osgoode Hall at Provincial Trial Advocacy Competition • Obtained 2nd place finish and secured place for team in the Sopinka Cup Competition • Honourable Mention for Best Cross-Examination and Best Closing Address to Jury 1998 - 1999 - Innocence Project, Osgoode Hall Law School One of eight students selected to represent individuals who have been wrongfully convicted • Negotiated with Crown Law offices and police forces to obtain seminal information about clients’ case files, arranged for DNA retesting with Crown Law office and private laboratory • Researched the causes of wrongful convictions and presented findings in the form of a seminar; conducted presentations for community organizations about wrongful convictions. 1998 -1999 - Upper-Year Mentor, Osgoode Hall Law School One of twenty students selected to be a mentor for incoming students • Organized and conducted seminars for first-year students on legal research, essay writing and exam preparation 1992 -1993 - Founder, Multicultural Student Coalition, McGill University Built coalition with student leaders of campus groups, including Black Students’ Network and Women’s Union, to fight discrimination on campus • Lobbied university administration to institute anti-discriminatory policies • Educated community through press campaign and awareness events. 1991 -1993 - Lobbyist, Outreach Worker, AIDS Education Committee Lobbied provincial and federal governments to improve the services for people with AIDS • Organized resource centre to provide HIV+ people with essential needs and referrals • Taught AIDS prevention to teenagers in local high schools. Publications “Corbett Applications.” Paper published in conference materials at “Criminal Intelligence: Critical Information for the Prosecution, the Defence and the Police,” Toronto, 2000.  Languages - English, French Travel Western and Eastern Europe, Middle East, North Africa (Sept. 1989- Feb. 1990) Northeast and Southeast Asia (Aug. 1993- Apr. 1994

2009-12-03T23:10:41-05:00

Mr. Bergman received his Bachelor of Arts in philosophy from Carleton University in 1998. Before entering law school, Scott spent a year in Brussels working in the Press Office of the North Atlantic Treaty Organization (NATO). Mr. Bergman attended Osgoode Hall Law School from 2000 to 2003 and was called to the Bar in Ontario in 2004. Mr. Bergman joined the firm after the successful completion of his Articles of Clerkship in 2004. As an associate at Cooper & Sandler LLP, Mr. Bergman represents clients on a wide variety of criminal and quasi-criminal matters, ranging from "white collar" charges, such as insider trading and large-scale fraud to dangerous driving causing death, drinking and driving and aggravated assault charges under the Criminal Code. As a part-time Crown Attorney, Mr. Bergman also assists with prosecutions on behalf of the Attorney General of Ontario. Mr. Bergman was co-counsel with Mr. Sandler in their representation of the Criminal Lawyers' Association as intervener before the Supreme Court of Canada in the case of Hill v. Hamilton-Wentworth Police. Scott has also been appellate counsel for clients in the Court of Appeal for Ontario and the Superior Court of Justice. Scott is an Executive member of, and the Advocacy and Government Relations Liaison for, the Ontario Bar Association's Criminal Justice Section. His government relations works extends to membership on the Law Reform Committee of the Canadian Bar Association's Criminal Justice Section. In this capacity, Mr. Bergman reviews and responds to proposed federal government amendments to the Criminal Code on behalf of the Canadian Bar Association. Mr. Bergman is also a member of Legal Aid Ontario's Criminal Law Advisory Committee. As a member of the Committee, Mr. Bergman provides professional insight and feedback to the Chair of Legal Aid Ontario, all with a view to enhancing and improving the delivery of legal aid services in Ontario.

2009-11-04T02:03:34-05:00

sbergman@criminal-lawyers.ca 4164082372

Scott

Bergman

Scott Bergman, Toronto Criminal Lawyer - Cooper & Sandler LLP

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2009-11-06T00:03:27-05:00

5 B.A., LL.B. WORK EXPERIENCE September 2004 to Present – Associate, Cooper & Sandler <ul type="DISC"> <li>Criminal defence counsel representing clients in a variety of matters, with a particular focus on: large-scale fraud, conspiracy, defence of quasi-criminal charges and serious driving offences</li> <li>Appellate counsel representing clients at the Ontario Court of Appeal and Superior Court of Justice</li> <li>Part-time assistant Crown Attorney and assist trial courts as “amicus curiae”.</li> </ul> May 2002 – Student-at-Law and Summer Student July 2004– Blake, Cassels & Graydon LLP <ul type="DISC"> <li>Performed legal work in the fields of restructuring and insolvency, litigation and securities law</li> <li>Guest lecturer of a first year Osgoode Hall Law School class regarding the treatment of equality rights under the CanadianCharter of Rights and Freedoms</li> <li>Undertook the representation of youth in various criminal,Charterand education matters as a seconded student withJustice for Children and Youth</li> </ul> January 2000– Communications Intern, Office of Information and Press July 2000– North Atlantic Treaty Organisation (NATO),Brussels, Belgium <ul type="DISC"> <li>Participated on two selection committees for International Calls for Bids</li> <li>Responsible for the strategic development of the NATO web site and created a multimedia CD for visiting groups to NATO</li> </ul> EDUCATION & ACADEMIC ACHIEVEMENTS 2000 to 2003– Bachelor of Laws,Osgoode Hall Law School, York University (graduated in the top 3% of the 2003 Osgoode Hall Law School graduating class) 2002– Awarded the Fraser Milner Casgrain LLP Prize for excellence in academic studies and contributing to the Moot Court Program 2001– Awarded the Harry R. Rose Criminal Law Prize for obtaining the highest standing in Criminal Law, Section C 2001– Awarded the McMillan Binch Scholarship for academic excellence 1994 to 1998 – Honours Bachelor of Arts in Philosophy, Carleton University, Ottawa ON 1997 – Awarded the George Fierheller Scholarship for outstanding academic achievement VOLUNTEER WORK & EXTRACURRICULAR ACTIVITIES Spring 2009 to Spring 2011 - Legal Aid Ontario Criminal Law Advisory Committee Member <ul> <li>Provide expert advice for the Legal Aid Ontario Board of Directors on criminal law issues</li> <li>Assist Legal Aid Ontario Board with the criminal law panel planning process</li> </ul> June 2008 – Ontario Bar Association (OBA) – Criminal Justice Section Executive <ul> <li>Present – Public Affairs Liaison assisting in developing and communicating the Section’s position on criminal law policy and legislation to the OBA, the public and the provincial government</li> </ul> January 2003 to June 2003 – Worker’s Rights Advocate, Parkdale Community Legal Services <ul> <li>Successfully appealed a decision of an Employment Standards Officer in front of the Ontario Labour Relations Board</li> <li>Acted as an advocate for workers on a variety of matters including dismissal without cause, constructive dismissal, and discrimination</li> </ul> April 2002 to May 2003 – Co-Chair, Osgoode Hall Law School Mooting Society <ul> <li>Created awareness and encouraged participation in the Osgoode Mooting Society through various communications and marketing initiatives</li> <li>Responsible for the selection of competitive mooting teams at Osgoode Hall and the coordination of the Lerner’s Cup (internal Osgoode competition)</li> </ul> May 2001 to September 2003 – Executive Committee Member, CANFAR AIDSbeat Fundraiser <ul> <li>Responsible for the marketing, co-ordination and event planning of AIDSbeat, a fundraiser for the Canadian Foundation for AIDS Research (CANFAR)</li> <li>Worked as an advocate and lobbied on behalf of CANFAR to help raise $250,000 from private businesses and local government</li> </ul> MEMBERSHIPS <ul type="DISC"> <li>Law Society of Upper Canada</li> <li>Criminal Lawyers Association</li> <li>Ontario Bar Association</li> <li>Toronto Lawyers Association</li> <li>Canadian Bar Association</li> </ul>

2009-12-03T23:11:11-05:00

Corie Langdon received her Bachelor of Arts degree in Sociology from McGill University in 2002 and then went on to complete a Master of Social Work from Carleton University in 2004. Before entering law school, Ms. Langdon worked for a federal Member of Parliament. Ms. Langdon attended Osgoode Hall Law School from 2006 to 2008, during which time she received an award for excellence in criminal law. Ms. Langdon joined Cooper & Sandler LLP as an articling student in August, 2008. She was called to the Ontario Bar in 2009 and is currently an associate with the firm. As an associate at Cooper & Sandler LLP, Ms. Langdon represents clients on a wide variety of matters before the criminal courts, including domestic assaults; sexual assaults; drug offences; drinking and driving; weapons offences and property offences. Ms. Langdon has a special interest in working with clients with mental illness who are involved in the criminal justice system. Ms. Langdon is also a member of the Ontario Working Group on Criminal Law and HIV Exposure.

2009-11-04T01:52:48-05:00

clangdon@criminal-lawyers.ca 4164082372

Corie

Langdon

Corie A. Langdon, Toronto Criminal Lawyer - Cooper & Sandler LLP

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2009-11-05T23:55:04-05:00

6 B.A., M.s.W., LL.B. Relevant Work Experience August 2008 – Present   [Toronto, Ontario] Cooper & Sandler Associate <ul> <li>Represent clients on a wide variety of matters before the criminal courts including charges related to: drug trafficking, assault and related charges and fraud.</li> </ul> August 2008-June 2009   [Toronto, Ontario] Cooper & Sandler   Articling Student <ul> <li>Assisted in the representation of clients on a wide variety of matters before the criminal courts including charges related to: drug trafficking, sexual assault, domestic assault and related charges and fraud.</li> </ul> May 2007 – April 2008 [Toronto, Ontario] Community Legal Aid Services Program, Osgoode Hall Criminal Division Leader  <ul> <li>Represented clients on all summary and hybrid Criminal Code offences as well as some Controlled Drugs and Substance Act offences.</li> <li>Researched and wrote legal and constitutional factums.</li> <li>Attended court dates.</li> </ul>    June 2004 – September 2005 [Burnaby, British Columbia] Office of Federal Member of Parliament Constituency Assistant <ul> <li>Researched and analyzed government policies and laws to find legislative solutions to constituent concerns.</li> <li>Coordinated relations with local and national media.</li> <li>Hosted national consultations to examine possible changes to the Canadian Human Rights Act.</li> </ul> April 2004 - June 2004 [Burnaby, British Columbia] Office of Federal Member of Parliament  Constituency Caseworker <ul> <li>Advocated for individual clients who were having legal and procedural difficulties with Immigration and Refugee applications, Employment Insurance, Student loans, Pensions, and Income Tax related issues.</li> </ul> January 2003 - April 2004 [Ottawa, Ontario] Office of Federal Member of Parliament Research, Policy and Legislative Assistant <ul> <li>Researched legislation, prepared speeches and drafted memorandum for M.P.</li> </ul> Education & Achievements 2005-2008   Faculty of Law, Osgoode Hall Bachelor of Laws * Recipient of the Jack Pinkofsky Prize for excellence in criminal law.  2002-2004 Carleton University Master of Social Work; Specialization in Social Policy  1998-2002 McGill University Bachelor of Arts; Sociology * Recipient of the Scarlet Key Award for Excellence in Leadershi Recent Volunteer Experience May 2009 – Present  [Toronto, Ontario] Elizabeth Fry Society Volunteer   Provide legal information and support from women involved with the Criminal Justice System September 2006 - Present [Toronto, Ontario] Community Legal Aid Services Program, Osgoode Hall Caseworker & Duty Counsel    Criminal Division Caseworker - duties included researching legal issues, case preparation, meeting and corresponding with clients    Duty Counsel - duties include client screening and intake, as well as scheduling appointments, data entry and responding to client inquiries September 2006- Present [Toronto, Ontario] Pro Bono Students’ Canada, Family Law Project Volunteer    Assisted with preparation and execution of ex-parte applications, custody and child support affidavits, restraining orders and all other filings and court appearances for unrepresented litigants. September 2005 – April 2006 [Vancouver, British Columbia] Law Students Legal Assistance Program, Carnegie Clinic Head    Organized and participated in weekly legal clinic dedicated to providing free legal advice to low income clients in Vancouver’s Downtown Eastside.    Conducted trials on assaults and drug charges.    Researched clients’ files, prepared all client cases, and corresponded with clients. Memberships <ul> <li>Law Society of Upper Canada</li> <li>Criminal Lawyers Association</li> <li>Ontario Bar Association</li> </ul>

2009-12-15T16:25:39-05:00