ETHICS ROUNDTABLEEthical Issues for Prosecutors

PAO Fall SeminarOctober 24, 2014

Hans SaamenSheilagh Stewart

Topics

New Rules of Paralegal and Professional Conduct – Effective October 1, 2014

Interviewing witness – obligation to disclose what they told you? Where does that leave you?

Threatening further charges Is the defendant a “client” of the agent? ‘Without Prejudice’ conversations-can they be

used to cross-examine defendant? Perjury?

New Rules of Paralegal Conduct- What has changed

Definition of “client” Definition of “consent” Definition of “Limited Scope Retainer” Integrity Competence Threatening criminal/regulatory

proceedings Undertaking and Trust Conditions Quality of Service to Clients Conflicts of Interest

New Rules of Paralegal ConductClient

Rule 1.02:

“client” means a person who: (a) consults a paralegal and on whose behalf the paralegal provides or agrees to provide legal services; or (b) having consulted the paralegal, reasonably concludes that the paralegal has agreed to provide legal services on his or her behalf and includes a client of the firm of which the paralegal is a partner or associate, whether or not the paralegal handles the client’s work;

New RulesDefinition of “Consent”

 Rule 1.02:  The definition of “consent” amended -now stipulates that consent must be fully informed and voluntary after disclosure. In addition the revised definition provides that where consent is given in writing by more than one person, the consent may now be provided in the same document signed by all the persons consenting, as opposed to in separate documents. If the consent is provided orally, the definition continues to provide that each person consenting must receive a separate written confirmation recording the oral consent, but also adds that this must occur as soon as practicable.

New Rules of Paralegal ConductDefinition of “Limited Scope Retainer”

Rule 1.02: Limited scope retainer “Limited scope retainer” means the provision of legal services by a paralegal for part, but not all, of a client’s legal matter by agreement between the paralegal and the client

New Rules of Paralegal ConductIntegrity

Rule 2.01(2): Integrity 2.01 (1) A paralegal has a duty to provide legal services and discharge all responsibilities to clients, tribunals, the public and other members of the legal professions honourably and with integrity. (2) A paralegal has a duty to uphold the standards and reputation of the paralegal profession and to assist in the advancement of its goals, organizations and institutions. This new Rule requires paralegals to uphold standards and reputation of legal profession and assist in advancement of its goals, organizations and institutions.New provisions added to the related Guidelines

New Rules of Paralegal ConductCompetence

Rule 3.01 – CompetenceChange to definition of a “competent paralegal”Who is Competent – 3.01(4): For the purposes of this rule, a competent paralegal is one who has and applies the relevant knowledge, skills and attributes, appropriate to each matter undertaken on behalf of a client including, (a list follows)Minor changes to the required standard of competency

New Rules of Paralegal ConductThreatening Criminal Proceeding

Rule. 3.02 Threatening Criminal Proceedings: (9) A paralegal shall not, in an attempt to gain a benefit for a client, threaten, or advise a client to threaten: (a) To initiate or proceed with a criminal or quasi- criminal charge; or (b) To make a complaint to a regulatory authority.

(10) Subrule (9)(b) does not apply to an application made in good faith to a regulatory authority for a benefit to which a client may be legally entitled.

New Rules of Paralegal ConductUndertakings and Trust Conditions

Rule 2.02 on undertakings has been expanded to include trust conditions once accepted.

Rule 2.02 now provides that in addition to their obligations regarding the giving and fulfilling of undertakings, paralegals must also honour every trust condition once accepted.

New Rules of Paralegal ConductQuality of Service to Clients

Quality of Service to Clients - rule specifying that a paralegal has a duty to provide courteous, thorough and prompt service to clients has been added.

This new rule on quality of service is contained in subrule 3.02(1) and stipulates that the quality of service required of a paralegal is service that is competent, timely, conscientious, diligent, efficient and civil.

Guideline 6: Competence and Quality of Service provides that a paralegal should meet deadlines, unless the paralegal is able to offer a reasonable explanation and ensure that no prejudice to the client will result. In addition, a paralegal should promptly respond to communications and report developments to clients whether or not there is a specific deadline. In the absence of developments, contact with the client should be maintained to the extent that the client reasonably expects (paragraph [12]).

New Rules of Paralegal ConductConflicts of Interest

Rule 3.04 on conflicts of interest and Guideline 9: Conflicts of Interest have changed.

There is a new definition of “conflict of interest” as well as new rules and guidelines.

A “conflict of interest” is now defined in rule 1.02 as: the existence of a substantial risk that a paralegal’s

loyalty to or representation of a client would be materially and adversely affected by the paralegal’s own interest or the paralegal’s duties to another client, a former client or a third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer.  

New Rules of Paralegal ConductConflicts of Interest

New subrule 3.04(1) - a paralegal shall not act or continue to act for a client where there is a conflict of interest except as provided in rule 3.04.

Subrule 3.04(3)- a paralegal shall not represent a client in a matter when there is a conflict of interest unless there is express or implied consent from all clients and it is reasonable for the paralegal to conclude that he or she is able to represent each client without having a material adverse effect upon the representation of or loyalty to the other client.

Scenario: Interviewing Witness

You are prosecuting Careless Driving charge. You have disclosed witness statement from Jane Jones in which she states that D1 was travelling south in lane 1. D2 was also in lane 1. D2 slowed to stop for a red light. D1 struck D2 in the rear of the MV. You call Jane 2 days before the trial and ask her what she recalls. She tells you D1 was in lane 1. D2 was in lane 2. D2 moved into lane 1 in front of D1 and hit the brakes hard to stop for a red light. This is inconsistent with her previous statement. You remind her of her earlier statement and attempt to persuade her that the earlier version is correct. What issues does this raise?

Interviewing Witness

Issues raised by this scenario:1. Disclosure of statement taken by you 2. Refreshing memory from earlier statement, and inconsistent statements – are you offering false evidence? rule 4.01(5)3. Attempting to suppress evidence? (rule 4.02)4. Do you potentially become a witness? – cannot prosecute and be a witness (rule 4.04)

Interviewing Witness-Disclosure

Disclosure of notes made by prosecutor regarding the interviewSee R. v. Armstrong, [2005] O.J. No. 5709 (SCJ) Dealt with crown’s notes in a file. Superior Court sets out principles involving disclosure of such notes. Any notes containing factual information must be disclosed. Analysis and opinion is part of the work privilege and do not have to be disclosed.

Interviewing Witness – False Evidence

4.01 THE PARALEGAL AS ADVOCATE

(5) When acting as an advocate, the paralegal shall not, (c) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any deception, crime or illegal conduct;

Interviewing Witness – Suppressing Evidence

4.02 INTERVIEWING WITNESSES – as of Oct 1/14 4.02 (1): Subject to the rules on communication with a represented party at Rule 7.02, a paralegal may seek information from any potential witness, whether under subpoena or not, but shall disclose the paralegal's interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way.

Interviewing Witness – Your Potential to be a witness

4.04 THE PARALEGAL AS WITNESS –as of Oct 1/14 4.04 (1) A paralegal who appears as advocate shall not testify or submit his or her own affidavit evidence before the tribunal unless (a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal, or (b) the matter is purely formal or uncontroverted.

Scenario: Threatening further charges

You are prosecuting a defendant for speeding. In reviewing the officer’s notes, you see that the speed was reduced from 55 over to 49 over. At an Early Resolution meeting (which is held within 4 months of the offence date), you tell the defendant that if he doesn’t plead guilty to the speeding charge as laid, you will have the officer charge him with stunt driving. There are still 2 months to lay the stunt driving charge. What issues does this raise?

Threatening further charges

3.02 ADVISING CLIENTS Threatening Criminal Proceedings (9) A paralegal shall not, in an attempt to gain a benefit for a client, threaten, or advise a client to threaten: (a) To initiate or proceed with a criminal or quasi- criminal charge; or (b) To make a complaint to a regulatory authority.

(10)Subrule (9)(b) does not apply to an application made in good faith to a regulatory authority for a benefit to which a client may be legally entitled.

Threatening further charges

1.02 INTERPRETATION Definitions 1.02 In these Rules “client” means a person who: (a) consults a paralegal and on whose behalf the paralegal provides or agrees to provide legal services; or

(b) having consulted the paralegal, reasonably concludes that the paralegal has agreed to provide legal services on his or her behalf

and includes a client of the firm of which the paralegal is a partner or associate, whether or not the paralegal handles the client’s work;

Threatening further charges

Prosecutors do not have clients – Rule 3.02 would not apply.

However, Rule 4.01 (5.1) would. Duty as Prosecutor : (5.1) When acting as a prosecutor, a paralegal shall act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Threatening further charges

See R. v. Babos, [2014] 1 S.C.R. 309 (S.C.C.) Defendants charged with weapons and drug

offences. Crown threatened defendant that if he didn’t settle charges, more would be laid, and he would be “hit with a train”

Defendant sought a stay of proceeding, alleging abuse of process as a result of crown bullying and threats

R. v. Babos – Supreme Court

Majority held that the crown’s conduct was highly improper, however it did not warrant a stay in the circumstances of the case since:

(1)The crown who made the threats was no longer prosecuting the case (2)The threat was not raised as an issue for over a year and not taken seriously by the defendant (3)The charges were very serious, thus balancing the societal interest in having the charges heard on the merits over the need to stay based on reprehensible conduct.

R. v. Babos – Supreme Court

Majority noted a distinction between plea bargaining and threats – at para 59:

“The distinction between the Crown's conduct in this case and legitimate plea bargaining practices should be made clear at the outset. It is perfectly proper for the Crown to indicate that it will drop certain charges, grounded in the evidence, if the accused pleads guilty. It is also proper for a Crown to advise counsel that if evidence arises at the preliminary inquiry that would support additional charges, they may be added to the indictment under s. 574(1)(b) of the Criminal Code. Where discussions of this sort occur with counsel after substantial disclosure has been provided, the accused and his or her lawyer are able to make an informed decision as to how to proceed and nothing improper has occurred.”

R. v. Babos – Supreme Court

“The Crown's conduct in this case was of a different nature. The impugned comments were made early on in the proceedings, before the appellants and their counsel had sufficient disclosure to make an informed decision as to how they wished to proceed. Moreover, in at least one instance, the comments occurred in the presence of one of the appellants, Mr. Piccirilli. And the Crown's language was nothing short of threatening. Mr. Piccirilli was told, for example, that if he did not settle, he was going to be [TRANSLATON] "hit by a train" (A.R., vol. V, at p. 5). Put simply, the Crown's threats were intended to pressure the appellants into forgoing their right to a trial.” ( At para 60)

R. v. Babos – Supreme Court

“Without question, the bullying tactic to which Ms. Tremblay resorted was reprehensible and unworthy of the dignity of her office. It should not be repeated by her or any other Crown. In her capacity as a Crown, Ms. Tremblay's role was that of a quasi-judicial officer. Her function was to be "assistant to the Court in the furtherance of justice, and not to act as counsel for any particular person or party" (Boucher v. The Queen, [1955] S.C.R. 16, at p. 25). In threatening to charge Mr. Piccirilli with more offences if he did not plead guilty, Ms. Tremblay betrayed her role as a Crown. Manifestly it is the type of conduct the court should dissociate itself from.” ( At para 61)

R. v. Babos – Supreme Court

Justice Abella (in dissent on the outcome) stated:

“But the public is also entitled to have confidence in the integrity of the justice system. A Crown who makes threats intended to bully an accused into foregoing his or her right to a trial, takes fatal aim at the heart of the public's confidence in that integrity.”

Scenario: Is Defendant represented by a paralegal?

An agent, Paul Jones, has filed a Notice of Intention to Appear on behalf of a defendant, John Smith. A trial notice was sent to the defendant. You have received a letter from a different agent, Jane Brooks, requesting disclosure. The letter does not indicate whether Jane is representing Mr. Smith at trial. You need to bring a motion to adjourn the trial since a witness will be out of the country. Can you communicate with the defendant directly?

Is the Defendant a “client” of the agent

Definition of Client section 1.02: “client” means a person who: (a) consults a paralegal and on whose behalf the paralegal provides or agrees to provide legal services; or (b) having consulted the paralegal, reasonably concludes that the paralegal has agreed to provide legal services on his or her behalf

and includes a client of the firm of which the paralegal is a partner or associate, whether or not the paralegal handles the client’s work;

Is there a limited scope retainer?

“limited scope retainer” means the provision of legal services by a paralegal for part, but not all, of a client’s legal matter by agreement between the paralegal and the client.

In effect October 1st

Can I communicate with the Defendant?

7.02 COMMUNICATION WITH A REPRESENTED PERSON, CORPORATION OR ORGANIZATION (1) Subject to subrules (2) and (3), if a person is represented by a legal practitioner in respect of a matter, a paralegal shall not, except through or with the consent of the legal practitioner, (a) approach or communicate or deal with the person on the matter, or (b) attempt to negotiate or compromise the matter directly with the person.

(2) Subject to subrule (3), if a person is receiving legal services from a legal practitioner under a limited scope retainer on a particular matter, a paralegal may, without the consent of the legal practitioner, approach, communicate or deal directly with the person on the matter, unless the paralegal receives written notice of the limited nature of the legal services being provided by the legal practitioner and the approach, communication or dealing falls within the scope of the limited scope retainer.

Can I communicate with the Defendant?

Rule 7.02 continued:(3) A paralegal who is not otherwise interested in a matter may give a second opinion to a person who is represented by a legal practitioner with respect to that matter. (8)The prohibition on communications with a represented person applies if the paralegal has direct knowledge of the representation or if he or she should be able to infer the representation from the circumstances.

Communication where Defendant is Represented

Problem – you do not know whether the agent has a limited scope retainer

The rules prohibit communication directly with the defendant who is represented by a paralegal.

You need to contact the agents who have filed and submitted documents to establish whether they are working under a limited scope retainer. If so, you can communicate with the defendant (Rule 7.02(2)).

Communication with Defendant or Agent

If one of the agents will continue to represent the defendant, you want something in writing from the agent confirming that they are representing the defendant.

You can serve the agent with a motion (Regional Municipality of York. v. Burnett, [2012] O.J. No. 3239, para. 9 (Ont. Sup. Ct.)

Scenario: Admissions made in pre-trial meetings

A defendant attends an Early Resolution meeting to discuss his disobey stop sign charge. He admits to the prosecutor that he did not stop, but wants to plead to an offence with no demerit points. You cannot offer anything, so the matter is not resolved. At trial, the defendant takes the stand and testifies that he stopped. You are prosecuting the case (you were not the prosecutor who conduced the ER meeting). Can you cross- examine the defendant on his admission made at the ER meeting? Can you call the other prosecutor in reply to testify as to the admission made by the defendant?

Admissions made in pre- trial meetings

See R. v. Zarinchang, [2010] O.J. No. 1548 (Ont. C.A.) at para 28:“ We pause to note that plea negotiations are generally privileged in the sense that the information disclosed will not be used against the accused, although there may be exceptions: R. v. Bernardo, [1994] O.J. No. 1718 (S.C.). It may be that an exception applies where the negotiations are adduced to rebut an allegation of prejudice at the hands of the Crown. However, we make no further comment as this issue was not addressed by either party.”

Admissions made in pre- trial meetings

See R. v. Bernardo, [1994] O.J. No. 1718 (Ont. Ct. (Gen. Div.)) at para 16:“The Crown also raises the issue of public interest privilege surrounding plea discussions. I agree with the Crown's submissions that there should be a recognized privilege surrounding plea discussions vis-a-vis the accused and the Crown. There are many reasons in the nature of public policy that would suggest that such a privilege does exist or ought to exist in order to encourage Crown and defence to have full, frank and private negotiations in criminal cases.”

R. v. Bernardo continued

“The rules or this Court concerning pre-hearing conferences in criminal matters contemplate that those negotiations will normally occur in private and that they will remain confidential2, unless a resolution is achieved in which case the discussions would normally be disclosed in court. I am of the view that the public interest is well served by encouraging such frank and full discussions between counsel for the accused and counsel for the Crown.” (at para 16)

R. v. Bernardo continued

“Although there may be exceptions to that confidentiality or privilege such as obstruction of justice, or other issues, I am of the view that public policy would dictate that there be a confidentiality concerning such negotiations. That privilege applies in the sense that the information disclosed will not be used against that person.” ( para 16)

Admissions made in pre- trial meetings

See also R. v. Delchev, [2012] O.J. No. 3963 (Ont. Sup. Ct):“What took place outside the courtroom was a plea bargain discussion. An offer was made by Crown for resolution and the offer was not accepted. Prima facie, the discussion is protected by class privilege. The privilege cannot be unilaterally waived.” (para 19)

Admissions made in pre- trial meetings

See R. v. Lake, [1997] O.J. NO. 5447 (Ont. Ct. (Gen Div)):Crown sought to examine adverse witness on admissions made in pre trial resolution discussions by defence counsel on behalf of the witness – the witness was charged with murder along with defendant – both were charged separately).Court held crown could not do so (par. 52). Privilege overrides search for the truth (par. 41)

Questions?

Any questions?