Chapter 6 - Advising, Directing and, Where Necessary, Disciplining Counsel for both the Crown and the Defence

A. Introduction

As discussed in Chapter 2, one noteworthy trend of the modern era has been an apparent increase in acrimonious relations between counsel. All four of our case studies were marked by open hostility, conflict, sarcasm or serious allegations of misconduct made against one counsel or another. For example, in R. v. Mallory and Stewart, the Court of Appeal felt it necessary to remark on the "unfortunate level of acrimony between counsel." 1 Indeed, there is now a considerable body of Court of Appeal jurisprudence in Ontario, going well beyond our four case studies, that deals directly with this phenomenon of court room incivility. R. v. Felderhof is the most important case on this subject. 2

The impact of this kind of conduct on the length of criminal trials is obvious. As Justice Moldaver put it, counsel who have forgotten the professional duty of courtesy and respect between opponents will stop "communicating in a meaningful and productive way and instead, are at each other's throats." 3 However, the impact goes beyond a breakdown in communication. In Felderhof, Justice Rosenberg described the more profound effect when allegations of "improper motives or bad faith" are made against opposing counsel: 4

Those types of submissions are very disruptive to the orderly running of the trial. They sidetrack the prosecutor and the trial judge from the real issues at the trial.

When counsel stop communicating with each other, nothing gets resolved out of court and every issue is fought out in the court room. Furthermore, the court room acrimony deflects the trial from its real purposes and the judge may lose his/her focus. The inevitable result is that long hard cases become even longer and more difficult. It is probably safe to say that every dysfunctional mega-trial will have been characterized by hostile and uncivil relations between counsel. We believe that this problem is serious and it must be remedied if we are to make long criminal trials in Ontario more efficient and focused.

Incivility in the court room is unprofessional as it violates the most basic rules of professional conduct. 5 Incivility also violates counsel's common law duties as "officers of the court". 6 There have always been a small minority of uncivil and unprofessional lawyers in the criminal courts, both on the Crown side and on the defence side. When criminal trials were generally short and simple, some 30 years ago, these lawyers had minimal impact on the overall effectiveness of the justice system. Now that criminal trials have become long and complex, the damage caused by this kind of counsel is much greater. When a major case with a high public profile is conducted in an irresponsible manner, by Crown counsel or defence counsel, the financial and human costs and, more importantly, the damage to public confidence in the justice system, can be very significant. As a result, there is a more pressing need today to enforce the Rules of Professional Conduct and the common law duties of "officers of the court".

We wish to stress as forcefully as we can that the vast majority of criminal cases are conducted professionally by skilled and dedicated counsel on both sides. We were repeatedly told by all participants in our Review that there is only a small number of counsel, on both sides of the bar, who conduct themselves in an unprofessional or irresponsible manner. Unfortunately, they have disproportionate impact when they become involved in long complex cases.

We believe that this is another area where significant improvements can be made. It is important to differentiate at the outset between the rare case of professional misconduct and the distinct phenomenon of poor judgment, poor advocacy, inexperience or, simply lack of guidance and direction from mentors. The latter phenomenon is the more prevalent one but it too can significantly lengthen and delay a large complex case. We will address it first and then turn to the more infrequent problem of actual professional misconduct.

B. Inexperience, Lack of Guidance, Poor Judgment and Poor Advocacy

In the previous chapter we noted that 55% of Big Case Management certificates are issued to lawyers with less than 10 years experience, including 28% that are issued to lawyers with less than four years experience. We are advised that a similar phenomenon exists on the Crown side of the bar and that major cases are increasingly being assigned to quite junior prosecutors. It should not come as a surprise that some of these counsel need guidance and advice. Furthermore, there are senior counsel in the justice system, both on the Crown and the defence side, who simply lack good judgment. They too need guidance and advice.

There are different solutions to this problem, depending on whether the lawyer in need of guidance and advice is working on the Crown side or the defence side of a case. We begin with the Crown side.

1. Oversight and Guidance of Crown Counsel in Long Complex Cases

This was a sensitive topic during our Review because our best prosecutors are generally strong personalities who take great pride in their skill and judgment and who naturally resist any suggestion that they need to have an oversight committee looking over their shoulder and second-guessing their decision-making in long complex cases. We are sympathetic to this view and so we begin by stressing that long complex cases must be assigned, in the first place, to our most able and most respected prosecutors. They are much less likely to make errors in judgment and they will require much less oversight. They are also more likely to be good communicators, who understand and accept the role of defence counsel. These are important criteria when assigning Crown counsel to a long complex case.

We know that this does not always happen and that major cases are, in fact, assigned to Crown counsel who would benefit from oversight and guidance. Accordingly, we need to design a system that is flexible and that accords considerable independence to the most able Crown counsel while watching more closely over the less able.

In designing such a system, the constitutional principle of prosecutorial discretion and the independence of Crown counsel, discussed in Chapter 3, is not an impediment. The authority to prosecute, or not prosecute, is given to the Attorney General, both at common law under the Royal Prerogative and under the various statutes establishing the Ministry of the Attorney General and the office of Crown Attorney. The Attorney General delegates these powers to Crown counsel who act as his/her agents. The constitutional principle of independence protects both the Attorney and his/her agents from outside interference: 7

It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions.

...

A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive, as well as statutory bodies like provincial law societies.

Accordingly, if the Attorney General directs Ministry officials to establish an internal system of oversight and supervision of major prosecutions, for non-political reasons related to the efficacy of these prosecutions, there is no improper interference with prosecutorial discretion. In short, independence is an institutional principle that insulates both the Attorney General and all Crown prosecutors from political interference, improper pressures and any considerations that detract from their quasi-judicial duty to objectively evaluate each case and the steps to be taken in the case. It is not an individualized principle that insulates inexperienced or misguided counsel from direction and supervision.

As emphasized above, in the era of long complex trials the justice system cannot afford serious errors of judgment in major cases, especially when these errors could have been avoided by oversight from experienced and respected peers. The first and most important level of oversight and accountability is the Crown Attorney within the local prosecution office. In the case of certain specialized units, like the Crown Law Office and the Guns and Gangs Office in Toronto, we regard the Director as having similar responsibilities to the Crown Attorney.

The Crown Attorney has many diverse responsibilities but the most important one, in our opinion, is to supervise and oversee the major litigation in the office. If a major case has been assigned to a particularly able and experienced Crown prosecutor, the supervision can be much lighter, for example, through periodic oral reports and discussions. If the case has been assigned to a more junior or less able counsel, the supervision needs to be more formal and more frequent.

We are advised that these traditions have declined in the modern era because the Crown Attorney is now burdened with substantial administrative duties and paperwork and has little time to watch over and assist with the major litigation in the office. We do not wish to diminish the importance of these administrative duties. For example, decisions relating to hiring, promotion and performance evaluation of the personnel in the office are critically important and will ultimately determine whether the office is staffed with the very best young counsel who will eventually take on these difficult cases. However, we do suggest that some administrative duties can be delegated to deputies or to non-legal staff. The only duty that should generally not be delegated, because it relates to the performance of the office's core function, is the supervision and oversight of major cases.

Sometimes the Crown Attorney will have to rein in a misguided prosecutor who has become too close to the case, has lost his/her objectivity and is unduly lengthening the proceedings or is about to make a major mistake. Other times the Crown Attorney will have to encourage a timid prosecutor who has not been pressing a position with sufficient force and vigour or who is about to abandon a case that should be prosecuted. In either case, the Crown Attorney must mentor, supervise and guide the major litigation in the office. In particularly large offices, deputies and team leaders can assist in this role.

In carrying out these duties, the Crown Attorney should reach out to the other Crown counsel in the office, to the police and to the local bench and bar so as to learn about any problems that may be developing on a major case. The Crown Attorney should also attend in court on occasion to either watch or assist. In short, the Crown Attorney needs as much information as possible about the status of the major cases in the office as this is arguably his/her most significant responsibility.

In some major cases, this local oversight by the Crown Attorney will be sufficient, especially if the case has been assigned to a very capable and experienced Crown prosecutor. However, we believe there have been and will be cases where the Crown Attorney and the Crown prosecutor are both too close to the case and are not exercising good judgment or where they simply lack experience in some of the problems associated with particularly long and complex cases. In these circumstances, we recommend that advice and direction must be available through a group of senior respected prosecutors from outside the local office.

We were pleased to learn in our consultations that both the federal and provincial prosecution services have instituted mechanisms for this kind of greater oversight and supervision. The province has instituted a Major Case Advisory Group that provides resources and assistance to large complex cases, as well as an informal system of "scrums" where a group of senior prosecutors are brought together to advise the prosecuting Crown on the conduct of the case. The Federal Prosecution Service Deskbook has a written policy on Mega-Case Management that involves the approval of a prosecution plan in all "mega-cases" at the local Director level and then the presentation of that plan to a National Prosecution Advisory Committee. The federal Committee's role is "to exercise a challenge function in relation to the prosecution plan." The policy describes the purpose of this oversight in the following terms: 8

The lead prosecutor on any mega-case, and his/her Director, must present the plan to the Committee. It should be viewed by the prosecution team and the Director as an opportunity to get advice on the overall approach to the case, or any particularly troublesome aspects of the case. It is expected that the results of the discussions will be a strong consensus as to the soundness of the plan, and the prosecution team will gain confidence that its plan will be supported...If the plan is approved, the FPS Director remains responsible for ensuring the execution of the plan.

The experience gained in Ontario with the so-called "Kaufman Committee" provides a useful analogy. 9 That Committee, set up after the Morin Inquiry, 10 vets all decisions by Crown counsel to call in-custody informers as witnesses. The advice we received was that the Committee has generally been a positive force in Ontario. Its narrow function, in approving or not approving decisions to call certain potentially suspect witnesses in major cases, was not the point that was stressed to us. Rather, we were told that the peer review more generally provided a forum for Crown prosecutors to discuss their entire case with a group of seasoned and respected colleagues from across the province. The local Crown Attorney and prosecuting Crown counsel who brought their cases to the Committee often found that they had been assisted in resolving any number of difficult issues. They went away more confident, feeling that they had strong institutional support concerning decisions about the conduct of their case. Federal prosecutors told us that their National Prosecution Advisory Committee has had similarly positive effects on individual Crown counsel conducting difficult cases who generally need to discuss their cases and feel confident that they are making wise decisions.

We encourage these initiatives and recommend that there be review of long complex prosecutions by a group of senior respected prosecutors from across the province. It is simply common sense that lawyers make better decisions after discussing their cases in this way. We leave the implementation details to the Ministry of the Attorney General but we offer the following four broad suggestions. First, we believe that the existing provincial model is probably too informal and that the existing federal model is probably too centralized. The kind of peer review of long complex prosecutions that we recommend needs to be mandatory but it should not be too closely connected to "head office". There is always a danger in the culture of any prosecution service that senior managerial officials, especially those at "head office" who brief the Minister and have regular contact with the Minister's political staff, may become more susceptible to extraneous influences and concerns. We recommend that peer review of these major prosecutions take place in the region where the prosecution is taking place and that the group of senior prosecutorial advisors should be drawn as much as possible from that region and from other regions with expertise in the particular kind of case. At least one Crown counsel with strong appellate expertise ought to be part of the peer review team.

Second, it is critically important that this kind of peer review ought not to become a vehicle for micro-managing the prosecution. It is the major decisions in the case, those that have the potential to impact on the length and cost of the case or on public confidence in the justice system, that require review by senior colleagues. Otherwise, prosecutors must be able to attend pre-trials, attend court, meet with the police, meet with defence counsel and make decisions without constantly having to look over their shoulder for approval from a committee. Presumably, the peer review should take place at a reasonably early stage of the proceedings and should only be renewed if a significant new issue arises.

Third, the advice of the prosecutorial review team ought to be followed, subject to that advice being over-ruled by the Assistant Deputy Attorney General (Criminal Law). The peer review we recommend is not optional. Although our recommendation is for a mandatory process, it can be implemented slowly and incrementally, picking a small group of very large and difficult cases to begin with and then expanding the program as institutional capacity and experience is developed. Whatever group of cases are determined to be eligible for this program, the assigned prosecutors must respect the advice that they receive.

Fourth, the peer review team and the local Crown Attorney ought to be open to receiving information from the police, from defence counsel, from Legal Aid Ontario and from the Criminal Lawyers' Association (CLA). It may be that prosecutorial practices are unnecessarily causing delays or driving up costs in other parts of the system. The Crown Attorney and the reviewing prosecutors ought to be able to consider this information before making final decisions about the conduct of the prosecution.

Recommendation 29:

The conduct of long complex criminal prosecutions must be assigned, to the greatest extent possible, to the most able and most respected prosecutors. Crown counsel's communication skills and their understanding and acceptance of the role of defence counsel are also important criteria when assigning Crown counsel to these cases.

Recommendation 30:

The local Crown Attorney or the Director of certain specialized offices must supervise and oversee the major cases in his/her office. The degree of supervision and oversight will vary, depending on the abilities and experience of the assigned prosecutor. It is the responsibility of the Crown Attorney to try to prevent any undue lengthening of the proceedings, as well as any significant errors, and this requires appropriate oversight and supervision.

Recommendation 31:

Prosecutions of long complex criminal cases ought to be subject to mandatory peer review by a group of senior respected prosecutors. The review should consider only the major or contentious issues in the case that could lead to undue lengthening of the proceedings or to significant errors. The review should take place in the local region where the prosecution is being conducted, it should receive all relevant information from any justice system participant and it should then provide advice to the Crown Attorney and to Crown counsel prosecuting the case. That advice should be followed, subject to reversal or modification by the Assistant Deputy Attorney General (Criminal Law).

2. Oversight and Guidance of Defence Counsel in Long Complex Cases

The need for greater oversight and guidance of counsel in long complex trials applies equally to the defence bar. The institutional mechanisms, however, are not as easy to put in place as they are with the Crown bar. Most defence counsel practise alone, rather than under the tutelage of a senior practitioner who could replicate the role of the Crown Attorney. Furthermore, defence counsel do not exercise delegated authority as Crown counsel do from the Attorney General.

Nevertheless, we believe that institutional mechanisms are available, through LAO and the LSUC, to ensure that defence counsel in need of guidance and direction actually receive it.

As with Crown independence, we do not believe that the independence of the defence bar is an impediment to greater oversight and direction of those counsel who need it. The constitutional principles relating to the independence of the bar, as explained in Chapter 5, are protections against extraneous influences and pressures that undermine counsel's effectiveness. Providing oversight and guidance from a group of highly skilled peers, within the defence bar, will enhance defence counsel's effectiveness rather than undermine it. We believe our recommendations in this area are firmly grounded in the ideals of an independent bar, committed to the skilled, resolute and responsible defence of the accused.

In terms of LAO's role in providing greater oversight and direction in a long complex case to counsel who lack judgment or experience, our recommendations in Chapter 5 already address this topic. If comprehensive "quality assurance standards" are developed pursuant to LAO's s. 92(1) duty, if ss. 31 and 32 of Ontario Regulation 106/99 are amended to more effectively remove lawyers who fail to meet "quality assurance standards" and if ex post case reviews and audits are used to inquire into those cases that have not been conducted effectively, there should be fewer counsel working on these cases who need intensive oversight.

More importantly, an enhanced Exceptions Committee, properly resourced with the time, money and information needed to review these cases in advance, is an ideal vehicle for peer review. It should become the functional equivalent of the system of Crown peer review that we propose in Recommendation 31. If young counsel, or counsel who may lack judgment, must bring their long complex cases before an experienced and respected group of leading defence counsel to discuss their proposed defence and receive guidance and direction, the defence will undoubtedly be more effective. As with Crown peer review, this process should be mandatory and the advice of the Exceptions Committee, assuming LAO accepts it, must be enforced. It is not acceptable to pay defence counsel to raise major issues and argue major motions that an experienced group of peers has rejected as either unlikely to succeed or unlikely to advance the defence.

The LSUC must also take a greater role in this area. LAO only deals with publicly funded cases and has no powers in relation to privately funded cases. Furthermore, the enhanced LAO management and oversight of the defence that we recommend will likely be implemented slowly and incrementally, given the need for LAO to develop new institutional capacity in these areas. There will be many major cases and many counsel who need mentoring and guidance but who have no access to an empowered Exceptions Committee. The LSUC must fill this gap.

In fact, the LSUC currently has a mentoring program under which a list of senior lawyers is available to provide mentoring to any counsel who calls up and asks for help. 11 We are advised that the program is both under-communicated and under-utilized and could be improved in at least two ways. First, it is dependent on self-reporting and needs to be more proactive. Second, it resides within the LSUC and it is not surprising that lawyers are somewhat reluctant to call their professional regulator and implicitly acknowledge that they may be out of their depth on a long complex case.

We are advised that the problem of lack of mentoring in the defence bar has become quite acute and that strong remedies are needed. As noted above, most leading members of the bar who do hire and mentor junior counsel in their offices are not taking on long complex trials on Legal Aid. Furthermore, for those lawyers who do agree to act on these cases, the current tariff does not make it economical to retain junior counsel and have them assist at trial. As a result, there is less training of junior lawyers on these cases than in the past. Finally, very few defence lawyers now hire articling students and many young lawyers practise outside the supportive culture of office space that is shared with senior lawyers. It is not surprising, in these circumstances, that some lawyers in long complex cases are isolated and need support, guidance and mentoring from senior and respected members of the bar. Although our leading counsel may no longer take on the defence in long complex Legal Aid trials they would surely be willing to take on a mentoring role.

We recommend that the LSUC and the CLA collaborate on a re-invigorated mentoring program. It should be a collaboration because the LSUC has the statutory duty to ensure competence and professionalism in the bar, and it has the budgetary resources, but the CLA is more likely to administer such a program effectively. The CLA has no disciplinary or regulatory functions and so a lawyer in need of help will be more likely to turn to the CLA for guidance and direction than to the LSUC. The CLA could also implement the program on a local level.

In order to be proactive, the program should be communicated widely, including to the judiciary and the Crown Attorneys. When a lawyer is out of his/her depth on a long complex case, it will not usually rise to the level of incompetence, justifying the extreme remedy of removal of counsel. The judge should be able to suggest to the lawyer that he/she contact the CLA mentoring program or the Crown Attorney should be able to call the President of the CLA or a local Director of the CLA to advise them of the problem. In this way, counsel will be referred to someone senior and respected who they can talk to about the conduct of the defence in a difficult case. This may be all that is needed. 12

These are simply some possible ideas but the main point is that a much more vigorous, proactive and restructured mentoring program is needed.

Recommendation 32:

LAO should use a body like the Exceptions Committee to provide a system of prior peer review concerning the conduct of the defence in long complex cases. This should parallel the system of Crown peer review described in Recommendation 31.

Recommendation 33:

The LSUC, in collaboration with the CLA, should develop a re-invigorated mentoring program to replace the existing LSUC program. The CLA should be the visible body that provides leading counsel as mentors, with the LSUC providing administrative support and resourcing the program. It should be a proactive program that reaches out to the bar, the judiciary and the Crown Attorneys, in order to draw in those defence counsel who need guidance and direction in a long complex case.

C. Remedial Responses to Professional Misconduct in Long Complex Trials

1. Introduction

Although professional misconduct in the courts is rare, it is probably more prevalent in long complex trials. This is because counsel in these cases are put under intense pressure over a long period of time and because their relationships with adversaries are continually tested over this extended period of time. It is easy to forgive an opponent for some isolated failing in a short trial. It is much more difficult to maintain respectful relations with an opponent over the course of a very long trial, particularly an opponent who you have come to dislike or who you perceive as flawed.

All of the leading studies of the "mega-trial phenomenon" have recommended that steps must be taken in this area, to educate counsel for the Crown and the defence about their duties as "officers of the court" and to enforce those duties. 13

Professional misconduct in the course of a long complex criminal trial is the joint responsibility of the judiciary, the Law Society, LAO (as most of these cases are publicly funded) and the Attorney General. We state this proposition because all four bodies possess jurisdiction, in their own spheres, to respond to court room misconduct. The kind of court room conduct that can be unprofessional includes misleading the court, rude and abusive behaviour towards justice system participants, making allegations of mala fides that have no basis in fact or law, failing to follow judicial direction and falling below professional standards of competence. The courts possess an escalating series of common law sanctions to prevent and, in some cases, punish this kind of conduct. The LSUC possesses a broad array of professional disciplinary remedies for the same conduct. As discussed in Chapter 5, LAO has the power to remove lawyers from its panels on the basis of this kind of misconduct. Finally, the Attorney General's Ministry has internal disciplinary processes that would apply in such cases.

It is perhaps because all four bodies possess varying jurisdictions to remedy this problem that no one seems to take lead responsibility. As a result, there are almost never any serious consequences when professional misconduct occurs in the court room. We believe that all four bodies must exercise their jurisdictions in order to effectively respond to this issue. We will address the responses that are appropriate in each of their respective areas of responsibility.

2. Judicial Responses to Court Room Misconduct

All courts of record, whether statutory or superior, possess the implied power to control their own processes, to prevent abuses of their process and to ensure a fair trial. 14 As a result, trial courts can utilize an array of escalating common law remedies that are available when faced with court room misconduct that violates counsel's duties to the court and to the administration of justice. Those broad duties have already been described in Chapter 4, Section I of this Report. They require that all counsel behave responsibly and with civility. As noted by the Court of Appeal in Felderhof, the kind of misconduct described above violates both the Rules of Professional Conduct and counsel's duties as "officers of the court". 15 The judicial remedies available to enforce these duties include reprimands, injunctions, costs orders, contempt citations and referral of counsel to the LSUC for discipline. 16

The most important step that a judge can take in a long complex trial is to make it clear at the outset that high standards of professionalism are expected throughout the proceedings. We were advised that some counsel have simply never been told that they must sit when their opponent rises, that they must address the court and not address their opponent, that they must employ temperate and respectful language, even when making forceful submissions, and that they must never insult their opponent or resort to sarcasm. A trial judge should begin by educating counsel about these simple rules and, perhaps, by reminding them of their duties as explained in Felderhof: 17

Counsel are required to conduct themselves professionally as part of their duty to the court, to the administration of justice generally and to their clients. As Kara Anne Nagorney said in her article, "A Noble Profession? A Discussion of Civility Among Lawyers" (1999), 12 Georgetown Journal of Legal Ethics 815 at 816-17: "Civility within the legal system not only holds the profession together, but also contributes to the continuation of a just society...Conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully, and efficiently, in turn delaying or even denying justice." Unfair and demeaning comments by counsel in the course of submissions to a court do not simply impact on the other counsel. Such conduct diminishes the public's respect for the court and for the administration of criminal justice and thereby undermines the legitimacy of the results of the adjudication.

...

Every counsel and litigant has the right to expect that counsel will conduct themselves in accordance with The Law Society of Upper Canada, Rules of Professional Conduct. Those rules are crystal clear. Counsel are to treat witnesses, counsel and the court with fairness, courtesy and respect. See Rules 4 and 6 and Commentaries. I have set out what seems to have been the genesis for the acrimony between counsel in this case. Even if [defence counsel] honestly believed that the prosecution tactics were excessive and could amount to an abuse of process, this did not give him licence for the kind of submissions he made in this case...Motions based on abuse of process and prosecutorial misconduct can and should be conducted without the kind of rhetoric engaged in by defence counsel in this case.

If counsel are reminded of these duties, and the simple rules associated with them, the right tone will be set at the beginning of the trial. At the first sign of any departure from these rules, the judge must intervene and make it clear that counsel's conduct is unacceptable. In R. v. Henderson, a case involving Crown counsel who conducted an improper cross-examination of the accused and defence counsel who was "provoking, defiant and argumentative", the Court of Appeal held that the conduct on both sides "should not be condoned and should be addressed by the trial judge." Labrosse J.A., giving the judgment of the court, drew on his own experience as a trial judge and stated as follows: 18

Respect for the administration of justice is not enhanced where the courts appear to condone improper conduct...At the first sign by either counsel of questions which may lead to an improper cross-examination of a witness, a well-placed comment by the trial judge or a more explicit reminder in the absence of the jury of the proper role of counsel has, in my experience, invariably nipped any problem in the bud. If not, other means are available to the trial judge to assure the proper conduct of counsel. [Emphasis added]

Although the suggested "explicit reminder...of the proper role of counsel" may have to be repeated, we believe that this educative function of the trial judge is very important and it should be repeated in order to set the proper tone in the court room.

If this approach fails and, even after repeated reminders, counsel continues to misconduct himself/herself, then stronger remedies are required. An order or injunction to stop the misconduct, if it is violated, can amount to a contempt in facie. As Lord Goddard put it in the leading Privy Council case: 19

If in the course of a case a person persists in a line of conduct or use of language in spite of the ruling of the presiding judge he may very properly be adjudged guilty of contempt of court, but then the offence is the disregard of the ruling and setting the court at defiance.

Conduct akin to contempt can also give rise to a common law wasted costs order against counsel personally, in both civil and criminal cases. 20

We recommend that trial judges use these powers with restraint for a number of reasons. First, there is an alternative remedy available, when faced with counsel who persistently engages in unprofessional conduct in the court room, namely, referral to the Law Society. Second, contempt and personal costs orders should be remedies of last resort because they are overtly punitive and they require a very high level of misconduct. Finally, counsel is generally entitled to notice and a hearing before these sanctions are imposed and this will inevitably disrupt the trial and may prejudice the client. 21

Referral to the Law Society should be a useful intermediate remedy, where the "explicit reminder" in Henderson has repeatedly failed but before resorting to contempt and costs. It is a remedy that will not disrupt the trial or prejudice the client and it provides an array of sanctions that can be tailored to the misconduct. However, it does require that the Law Society take the referral seriously. This has not historically been the case and the judiciary in Ontario appears to have given up on the remedy of referral to the Law Society. We will address the Law Society's responsibilities in the next section of this chapter and the need for a more forceful disciplinary response.

The judiciary can assist in making the remedy of referral to the Law Society more effective. First, the judge at trial or on appeal who recommends referral to the Law Society should include findings of fact on the record as to what counsel did and what impact it had on the proceedings. Second, the judge should only recommend referral and should not become involved in actually sending a complaint to the LSUC. The Chief Justice, Associate Chief Justice or Regional Senior Justice should review the matter, after receiving a transcript with the findings from the judge, and should then decide whether to actually refer counsel to the Law Society. These two simple steps produce a number of benefits. They protect the trial judge from any adversarial complainant status in the matter, they provide an opportunity for sober second thought, they should produce greater consistency as to what level of misconduct merits a referral to the Law Society, they send a message to the Law Society that the matter is serious (if the Chief Justice or other Senior Justice submits the complaint) and they provide evidence in the form of findings of fact which the Law Society can then use to immediately commence its process.

Once again, B.C. appears to be taking the lead in this area. In a matter styled R. v. Dunbar et al, four appeals had been argued together by one counsel as they raised a common issue. Chief Justice Finch presided over the panel and the appeals were dismissed. The Court then referred counsel to the Law Society on the basis of the following findings which were set out in an Addendum to the Court's reasons: 22

Regrettably, in this case, counsel's zeal blinded him to his professional responsibilities...[His materials] contain serious allegations of unprofessional conduct and substance abuse, against another lawyer or former lawyer, all of which allegations are unfounded...He used his right of audience, and the privilege surrounding judicial proceedings to make seriously damaging but completely unfounded, allegations against John Banks. This Court has held that the privilege which accompanies legal proceedings should not be used as a cloak for personal and irrelevant attack.

The Law Society in B.C. responded to this referral by the Chief Justice, accompanied by clear findings of fact, with a significant licensing penalty. We will discuss the case in greater detail below, when we come to the Law Society of Upper Canada, which has not yet responded in a similar fashion to this kind of professional misconduct.

The Ontario Court of Appeal has recently held that referral to the Law Society is an appropriate response to court room misconduct. 23 We believe that there are many advantages to this approach, as outlined above. Of course, the ultimate sanctions of contempt and costs orders against counsel personally should be held in reserve and used in the most extreme cases. However, they should generally be exercised at the end of the trial, so as not to interrupt or prejudice the client's trial. A referral to the LSUC can be recommended to the Chief Justice, at any stage of the trial, whenever it is needed to escalate the remedies imposed on counsel who repeatedly engage in misconduct.

3. The Law Society's Response to Court Room Misconduct

In response to our consultation documents, we received helpful submissions from the LSUC. Three important points emerged from these submissions.

First, the LSUC acknowledged that there has been a recent increase in complaints about declining standards of professionalism, including dishonourable, misleading and uncivil conduct. As a percentage of all complaints, this category more than doubled between 2004 and 2007, from 4.7% to 11.1%. This trend is of concern to the LSUC and it is consistent with the results of our research and the submissions that we received.

The second noteworthy point was the LSUC's characterization of complaints of incivility in the justice system, namely, that "while damaging to the administration of justice, [they] lie generally at the less serious end of the spectrum of professional discipline issues." The normal LSUC response in these cases has not been disciplinary at all but has been "remedial", in the form of an Invitation to Attend or a Letter of Advice. Since these responses are not disciplinary they are not made public.

We were advised that there have been a total of 48 Invitations to Attend and 26 Letters of Advice issued since the beginning of 2003 and that some of these cases included allegations of uncivil, misleading and dishonourable conduct. As the name suggests, an Invitation to Attend is a private meeting with a panel of benchers where the lawyer is counselled for his/her misconduct. The Letter of Advice is even less intrusive as there is no formal appearance before the benchers. If the lawyer repeats the misconduct, no reference can be made to the prior Invitation to Attend or Letter of Advice at any subsequent disciplinary proceedings.

This very quiet and very lenient response to what may have been very public misconduct in a court room caused the LSUC to develop a new remedy in early 2007. The LSUC's concern was that it could be perceived to have done nothing in very public cases of court room misconduct, given that its two most common remedies were entirely private. The new remedy developed by the LSUC, known as a Regulatory Meeting, is the same as an Invitation to Attend except that it is now made public. It has been used once, on April 10, 2007, in the case of a lawyer who sat on the floor when the judge told him to be seated and who moved sideways when the judge told him to "move on". The case was a very long and dysfunctional murder trial that exhibited many of the same difficulties and failings that we have seen in our Review.

The Regulatory Hearing, as a response to the kind of misconduct that we are concerned with, remains at the very low "remedial" end of the spectrum. When lawyers disrupt or distort serious criminal trials by engaging in professional misconduct, it is a very serious matter that is worthy of real disciplinary penalties. We encountered widespread dismay amongst members of the judiciary, if not outright cynicism, on the subject of LSUC discipline for court room misconduct. There is a widespread perception that the LSUC will do little or nothing in response to these matters. That perception has considerable basis in fact. As a result, the judiciary has simply given up on referring lawyers to the LSUC when they misconduct themselves in the course of criminal proceedings.

This leads to a third point that we wish to note, emerging from the LSUC's submissions. The LSUC submitted that "there is a dearth of reported complaints" involving court room misconduct in criminal cases and observed, correctly, that "there appears to be a general reluctance to make such complaints". It, therefore, appears that we have arrived at a stalemate in this area. The LSUC has a history of treating these cases with undue leniency, and often with complete silence, and so the judiciary has given up on reporting them. The result is that the LSUC is concerned about increasing incivility in the courts but is no longer part of the solution because they are not receiving complaints. The LSUC noted that "the bar and the courts need to work together to improve reporting about misconduct in this area of practice." We certainly agree with this observation and the Treasurer, Derry Millar, confirmed this need for a new approach in his remarks at the Opening of the Courts on September 9, 2008.

Once again, we are fortunate to be able to refer to B.C. as a jurisdiction that appears to be working much more effectively in relation to this issue. As noted earlier in this Chapter, in Dunbar et al the B.C. Court of Appeal conducted a lengthy hearing at which a number of related criminal appeals were heard together. In an Addendum to its reasons dismissing the appeals, the Court concluded by stating the following: 24

It is impossible to measure with any precision, but a reasonable estimate is that the hearing of these four appeals took twice as long as the hearing should have taken if prepared and presented in a professional way. One cannot begin to estimate how much more time and effort was wasted in the preparation of affidavits which were almost entirely inadmissible.

One must assume that Mr. Goldberg was paid by someone for these efforts, whether a private or public source. If so, this was a waste of money. Even if done without pay, the improper affidavit material and Mr. Goldberg's submissions were a waste of the court's time, and a waste of other counsels' time, and of the expense of having those other counsel appear.

We would ask counsel for the Crown, Mr. Sweeney, to draw these reasons to the attention of the Law Society of British Columbia, the Legal Services Society, or any other body who might reasonably have an interest in controlling and preventing the conduct we have described.

The Law Society in B.C. responded to this referral, not with an Invitation to Attend or a Letter of Advice, but with a three month suspension. 25 We believe this is the appropriate response to court room misconduct that has the effect of distorting, delaying or undermining the due administration of justice. These are very serious consequences and they must be met with serious penalties if the LSUC is to send a deterrent message to the bar.

It is noteworthy that the LSUC does suspend lawyers for incivility, including for three month periods, when lawyers write threatening and insulting letters or make insulting statements out of court. 26 The one to three month suspensions imposed in these cases, while undoubtedly appropriate, bear no relationship to the far more lenient remedies in cases of court room misconduct. The harm in the latter class of case is far greater than the harm in the former class and yet the penalties are much more lenient.

Accordingly, we recommend that the LSUC reassess its whole approach in this area and treat cases of court room misconduct as serious professional misconduct. At the same time, the judiciary must resume the practice of making referrals to the LSUC in these cases, together with findings of fact stated on the record. We do not think it is alarmist to suggest that the LSUC's record in this area, unless it changes, threatens to undermine the cause of self-regulation.

Recommendation 34:

The judiciary should insist on high standards of professionalism from all counsel in long complex trials. This should begin with educative steps, to remind counsel of the basic rules of court room behaviour and of their duties as officers of the court. At the first sign of misconduct, the judge should intervene and remind counsel of their proper role. If repeated warnings and orders have no effect, the judge should advise counsel that referral to the LSUC is being recommended to the Chief Justice (or the Associate Chief Justice or Regional Senior Justice). The judge should make findings of fact on the record concerning counsel's conduct and its impact on the proceedings. A referral to the LSUC, assuming the Chief Justice or other Senior Justice approves it, can be repeated in the course of a long trial if there is repetition of the conduct. The ultimate judicial sanctions, namely, costs orders and contempt citations, should be reserved for the most extreme forms of misconduct by counsel and should generally be exercised at the end of the trial and on notice to counsel.

Recommendation 35:

The LSUC should reconsider its present approach to court room misconduct, to the effect that it lies at the "less serious end of the spectrum of professional discipline issues" and merits only "remedial" responses such as Letters of Advice, Invitations to Attend and Regulatory Meetings. When counsel's misconduct disrupts or distorts criminal proceedings, especially long complex trials, it causes great harm to the administration of justice and is worthy of significant penalties. We recommend the approach adopted in B.C. in Goldberg v. Law Society.

4. The Attorney General and Legal Aid's Responses to Court Room Misconduct

The final participants in the justice system who have jurisdiction to respond, when counsel misconduct themselves during a long complex trial, are LAO and the Ministry of the Attorney General. We have already set out in Chapter 5 our broad proposals concerning Legal Aid and need only make brief reference to the matter in this chapter.

It should go without saying that when a judge or court makes findings that a lawyer has engaged in misconduct during the course of a major criminal trial, and that lawyer has been publicly funded through LAO, there should then be an inquiry into the matter by LAO followed by real consequences. It is our understanding that this has become the practice in B.C. Indeed, it is hard to imagine any area of publicly contracted work where the contractor carries out the work in an improper manner and yet still remains eligible for similar public work in the future. LAO should follow the B.C. practice such that the very small number of lawyers who misconduct themselves during long complex cases will lose their eligibility to repeat the performance. Professor Trebilcock put it succinctly when he stated that LAO needs to "develop a well-defined process for removing lawyers from panels." 27

The same applies to disciplinary responses within the Ministry of the Attorney General. When Crown counsel engage in misconduct in the course of a major prosecution there must be an inquiry that leads to consequences, including removal of the Crown from future long complex trials.

We stress that prevention is far more valuable than ex post sanctions in this area. If LAO implements our recommendations in Chapter 5 concerning comprehensive "quality assurance standards" and amends its removal processes pursuant to ss. 31 and 32 of Ontario Regulation 106/99, then those very few lawyers who have been responsible for some of the dysfunctional long complex trials in this province will simply become ineligible for Legal Aid certificates in future cases.

Similarly, the Attorney General must ensure that the most rigorous hiring, training, and promotion practices are followed within the Criminal Law Division. The position of Crown counsel is one of great responsibility and esteem. It is also well paid and brings with it attractive long term benefits. The Criminal Law Division should only be hiring and promoting the very best young lawyers, in these circumstances, and should only be assigning its most serious cases to the best senior lawyers. Included in the criteria that distinguish our best Crown counsel are their communication skills. Crown counsel must accept and understand the role of defence counsel and must have a personality that is open and communicative with the defence. When assigning Crown counsel to a long complex case, these characteristics are essential.

Finally, it was suggested to us by a number of participants, and we agree, that the respective cultures of the defence and Crown bars have become too entrenched and divided by hard ideologies and that traditions of collegiality and respect at the bar have been eroded. This, in turn, leads to poor communication, unnecessary disputes and a failure to resolve issues and shorten trials. Professionalism requires respect and courtesy towards one's opponent. These values must be taught in the law schools and they must be propagated in continuing education programs, including joint education programs. We strongly urge the Ontario Crown Attorneys' Association (OCAA) and the CLA to take on the task of rebuilding the traditions of respect and collegiality between the Crown and defence bars. These two organizations are each strong and highly respected. They both provided us with excellent submissions that were thoughtful and responsible. We believe that the OCAA and the CLA can and should work together on this vital project of breaking down some of the divisions that have grown up within the bar.

Recommendation 36:

LAO and the Ministry of the Attorney General should take disciplinary steps, within their own spheres, when counsel engage in misconduct during the course of long complex trials. They should also take proactive steps to prevent misconduct by insisting on high standards of professionalism when determining panel eligibility (at LAO) and when hiring, promoting and assigning Crown counsel (within the Criminal Law Division).

Recommendation 37:

The OCAA and the CLA should develop joint education programs in order to revive the traditions of collegiality and respect between the Crown and defence bars.

5. The Particular Problem of Incompetence

One discrete aspect of unprofessional conduct is incompetence. The lawyer owes an ethical duty of competence to the client and the Rules of Professional Conduct include a fairly detailed description of the duty. 28 The LSUC has recently become more engaged in policing competence after receiving criticism about non-enforcement of this important ethical duty. 29

We encountered some uncertainty during our consultations as to whether the trial courts possess jurisdiction to remove incompetent counsel, especially in a long complex trial where particularly high levels of competence may be required. We wish to briefly address this difficult topic.

There are a number of well-known historical instances in Ontario where experienced trial judges persuaded counsel that he/she lacked the necessary level of experience or skill to conduct a major case. In each instance, counsel accepted the advice and more senior counsel were then retained to assist. No ruling or court order ever became necessary. If this kind of persuasion fails, the question that arises is whether the trial judge (or pre-trial case management judge, assuming our Recommendation 10 about empowering these judges is accepted) has the power to remove counsel incapable of conducting a long complex trial.

There is little direct authority on the point but we believe the power does exist and should be exercised where the trial judge or, preferably, the pre-trial case management judge concludes that counsel is not competent to conduct a long complex trial. Mr. Justice Hill of the Ontario Superior Court provided us with a very thorough paper on the topic, titled Ineffective Assistance of Counsel, prepared in December, 2002, as well as a March, 2008 presentation titled The Under-Represented Accused, both prepared for judicial education programs. We are very grateful for the assistance that he provided.

The source of the trial court's jurisdiction to remove incompetent counsel, if such power exists, must be found in the implied power of all courts of record to control their own processes and ensure a fair trial. 30 An accused who retains counsel is constitutionally entitled to competent representation by that counsel in order to protect "the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process." 31 As a matter of logic and principle, it can be concluded that the former power should be available to protect the latter right since they are both connected by the same underlying policy and purpose. Furthermore, it would be anomalous for appellate courts to unquestionably wield the power to reverse a conviction, on grounds of incompetent representation by counsel, but for trial courts to have no power to prevent this violation of rights. Trial courts have a duty to ensure that the trial proceeds without reversible error. As one American commentator put it, in instances of "manifest incompetence...the trial court cannot sit by and wait for an appeal to retrospectively remedy the harm" occasioned by the ineffective assistance of counsel. 32

The one circumstance in which the courts have had no difficulty in asserting a power to remove counsel at trial is on the basis of conflicts of interest. In Re Regina and Speid the Ontario Court of Appeal stated: 33

The right of an accused to retain counsel of his choice has long been recognized at common law as a fundamental right...However, although it is a fundamental right and one to be zealously protected by the court, it is not an absolute right and is subject to reasonable limitations. It was hoped that these limitations would be well known to the bar, but if not honoured, the court has jurisdiction to remove a solicitor from the record and restrain him from acting.

In assessing the merits of a disqualification order, the court must balance the individual's right to select counsel of his own choice, public policy and the public interest in the administration of justice and basic principles of fundamental fairness. Such an order should not be made unless there are compelling reasons. This is clearly such a case and to do otherwise would result in real mischief or real prejudice.

...

Mr. Speid has a right to counsel. He has a right to professional advice, but he has no right to counsel who, by accepting the brief, cannot act professionally. A lawyer cannot accept a brief if, by doing so, he cannot act professionally, and if a lawyer so acts, the client is denied professional services. [Emphasis added]

Similarly, in MacDonald Estate v. Martin, the leading Supreme Court of Canada case on removal of counsel for conflict of interest, Sopinka J. described the source of the trial court's power in the following terms: 34

A code of professional conduct is designed to serve as a guide to lawyers and typically it is enforced in disciplinary proceedings...The courts, which have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, are not bound to apply a code of ethics. Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction. [Emphasis added]

These cases establish that there is jurisdiction to remove counsel who "cannot act professionally", in order to protect "the administration of justice." Such a jurisdiction must apply to incompetent counsel as they cannot act professionally and they undermine the proper administration of justice.

There is one Ontario case holding that any member of the Law Society has a right to appear in court and that the trial judge's power "to control his own court process does not carry with it the right to choose which counsel are to appear before him," including "the incompetent" lawyer. 35 It is the decision of a single judge and the facts of the case were weak, arguably not justifying a removal order. In any event, the Court of Appeal subsequently doubted the correctness of the decision. In R. v. Romanowicz, the Court held that trial courts have the power to remove paralegals on grounds of competence, leaving open the question of whether the power also extends to lawyers. The source of the trial court's jurisdiction to remove an incompetent paralegal, as found by the Court of Appeal, is "the court's power to control its own process in order to maintain the integrity of that process". In principle, this power would extend to lawyers and the Court of Appeal stated that "[we] should not be taken as agreeing with Dilks J.'s observation [in Milligan] that trial judges are powerless to prevent representation by incompetent counsel." 36

The great weight of principle and authority, therefore, supports the existence of such a power. Justice Hill argues in his two papers in favour of a power to prevent incompetent counsel from continuing to act in a case, as does the leading American commentator, Judge Schwarzer. 37 We agree with them that a common law power exists to intervene in a trial that is demonstrably unfair due to counsel's incompetence.

The difficulty is when and how to exercise the power. Justice Hill argues for restraint: "realistically, and practically, the trial judge is restricted to intervening to deal [only] with flagrant, manifest or egregious incompetence." He explains the reasons for this highly deferential standard, as follows: 38

The challenges for the trial court to identifying incompetence generally arise from the inadequacy of a total record visible to the presiding trial judge, what is often incremental exposure of substandard performance during the trial, and, the limits imposed on the court by the adversary system itself. A competence inquiry at trial is a rare event...

Additionally, judicial questioning of defence counsel in an adversary system, at some level, may appear to challenge the accused's right to choose his or her own counsel, risk undermining the client's confidence in counsel, destroy the appearance of a fair trial, and any "meaningful inquiry into competence could well take the trial judge into confidential discussions" between the accused and counsel or unfairly "reveal defence strategies and tactics to the prosecution".

Judge Schwarzer recommends an incremental approach to remedies for "observed deficiencies before it is too late, resorting always to the least intrusive measure adequate to the need" but eventually culminating in "directing a change of counsel." 39 Justice Hill similarly advocates use of "a panoply of prophylactic or remedial measures" such as instructions, guidance, directions, recesses or adjournments. Finally, "in cases of manifest incompetence, the court should refuse to proceed in the absence of replacement counsel or an experienced counsel joining the defence team." 40

We agree with the cautious and deferential approach of Justice Hill and Judge Schwarzer to this particularly difficult issue. The trial judge should only intervene where there is strong evidence of incompetence and the interventions should involve lesser remedies before resorting to removal.

Recommendation 38:

The trial courts possess jurisdiction to prevent incompetent counsel from proceeding, in order to protect the fairness of a long complex trial. The jurisdiction should be exercised with caution and restraint, by first adopting lesser remedies to guide counsel and to suggest that counsel obtain assistance, and should only be exercised where there is clear evidence of incompetence.

D. Post-Mortems of the Justice System's Performance When a Long Complex Case is Seen to Have Failed

Many participants in our Review recommended adoption of the practice, now prevalent in the U.K., of conducting post-mortems of major cases that are perceived by the public to have been conducted inefficiently or ineffectively. A neutral inquiry into the causes of these perceived failures, it was argued, could help to prevent their recurrence and to restore public confidence.

It is noteworthy that both LAO and the Ministry of the Attorney General supported this proposal. Its merit, we believe, is that there is a much greater degree of transparency and objectivity when a third party expert reviews the case. An internal LAO inquiry into the performance of its counsel or an internal Ministry of the Attorney General inquiry into the performance of its counsel would necessarily be confidential and would not be perceived as independent. The U.K. model provides greater accountability to the public when a long complex case is seen to have failed. It also has the benefit of removing the case from the political arena. Finally, it avoids the delay, expense and procedural trappings of a full Public Inquiry.

The U.K. model, as we are calling it, arises from two distinct sources. One vehicle for post-case reviews in that country is found in s. 2(1)(b) of the Crown Prosecution Service Inspectorate Act 2000 which allows the Attorney General to refer a case to an outside auditor known as the Chief Inspector of the Crown Prosecution Service. 41 A good illustration of the use of this provision was after the Crown asked that all charges be dismissed in the recent Jubilee Line case. The Chief Inspector summarized the purpose of his review in the following terms: 42

The collapse of the Jubilee Line case in March 2005, without the jury having been asked to consider their verdicts, was generally regarded as an expensive disaster that reflected no credit on the criminal justice system. Serious allegations had been made that personnel of London Underground had been corrupted, and that as a result the main defendants had dishonestly enriched themselves out of the public financing for that project. In the process of investigating and trying these allegations further large sums of public money were expended, but to no useful purpose, because the trial produced no adjudication on the merits of those allegations. Intolerable burdens had been placed on the jury trying the case, whose time - amounting in this case to a substantial portion of their lives, some 21 months - had in effect been wasted.

Immediately following the collapse of the case, the Attorney General referred the matter to me with a view to ascertaining how this state of affairs had come about and to make recommendations designed to prevent a recurrence. In doing so he made it clear that the emphasis should be on identifying what had gone wrong and learning lessons, rather than seeking to apportion blame and criticism. I have been pleased to undertake this review and its purpose has been precisely that.

A somewhat different approach, which also exists in the U.K., is to establish a broader Review Board comprised of representatives from all the major participants in the justice system and have that Board examine long complex cases that are believed to have been conducted ineffectively. Lord Falconer, the Lord Chancellor, announced that he was adopting this approach in his July 2005 Report to Parliament, titled A Fairer Deal for Legal Aid: 43

To ensure that we build on, and continually refine the way that high cost cases are managed, the key players from across the criminal justice system will have a seat on a Very High Cost Case Review Board. After cases have concluded the Board will collectively examine the reasons why the largest cases have taken so long to try, and consumed so much resources and together agree on ways that the control and management of these cases can be improved.

As a result, the Very High Cost Case Review Board was established and it now conducts post-case audits of long and expensive criminal trials in the U.K.

The Inspectorate approach is obviously more targeted, allowing the Attorney General to selectively order reviews of only those particularly troubling cases that appear to have been mishandled by the justice system. The review would presumably have to await the completion of any appeals. The Very High Cost Case Review Board approach allows for the review of more cases and it likely produces more representative results, rather than looking only at the worst cases. It also helps to develop consensus solutions because of the Board's broad representation from across all branches of the justice system. However, it would be more costly than a targeted Inspectorate.

We recommend that one model or the other should be considered, for the reasons outlined above, but with certain modifications. It would perhaps be wise to begin with an adaptation of the less costly Inspectorate model and, if it produces useful lessons and expansion seems to be merited, then move to the more expensive but more comprehensive Review Board model. We note that the U.K. legislation contemplates a permanent office for the Inspectorate with a permanent position of Chief Inspector. We doubt this is necessary and believe that ad hoc appointment of Inspectors in individual cases would be the best way to begin.

Recommendation 39:

The Attorney General should possess the power to order a post-mortem or audit of a long complex trial, by a neutral expert, where there is a reasonable perception that the case has been conducted ineffectively or inefficiently. The Crown Prosecution Inspectorate Act 2000 (U.K.) is a useful model, with some modifications.


  1. Supra note 2 at para. 4.
  2. Supra note 95 at 533-541. The larger body of case law on this topic is reviewed in Michael Code, "Counsel's Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System" (2007) 11 Can. Crim. L.R. 97.
  3. Supra note 93.
  4. Supra note 95 at p. 539.
  5. R. v. Felderhof, supra note 95 at p.540. For example the Law Society of Upper Canada, Rules of Professional Conduct, June 22, 2000, provides in Rule 4.01(6) that "a lawyer shall be courteous, civil, and act in good faith to the tribunal and with all persons with whom the lawyer has dealings in the course of litigation." Rule 6.03(1) enacts an even broader duty to be "courteous, civil, and act in good faith with all persons."
  6. R. v. Felderhof, supra note 95 at pp. 536 and 539.
  7. Krieger et al v. Law Society of Alberta, supra note 33 at pp. 107-111 and 114-115. The Ontario statutes are the Ministry of the Attorney General Act, R.S.O. 1990, M.17 and the Crown Attorneys Act, R.S.O. 1990, C.49.
  8. Supra note 31.
  9. Ontario Crown Policy Manual: 2005, (Toronto, Ontario Ministry of the Attorney General, 2005), In-Custody Informers.
  10. Ontario, The Commission on Proceedings Involving Guy Paul Morin (Toronto, Ontario Ministry of the Attorney General, 1998).
  11. The Law Society of Upper Canada, Lawyer Mentorship Program, online: LSUC Resource Centre http://rc./suc.on.ca/jsp/mentorship/index.jsp.
  12. Another proactive means of providing mentoring would be to develop an "Inns of Court" program, like the one that the late Chief Justice McEachern developed in B.C. Young lawyers in the B.C. program are invited every two weeks, in the evenings after court, to a short lecture and discussion on a topic of interest, followed by a dinner. The lecture is given by a senior lawyer or judge and then a number of senior members of the bar and judiciary eat dinner with the young lawyers and allow them to discuss their practice and their cases.
  13. Supra note 6.
  14. Supra note 95
  15. Supra notes 153 and 154.
  16. Michael Code, supra note 150.
  17. Supra note 95 at pp. 536 and 540.
  18. (1999), 134 CCC (3d) 131 at 144-147 (Ont. C.A.).
  19. Parashuram Detarum Shamdasani v. King-Emperor, [1945] A.C.264 (P.C.)
  20. Ridehalgh v. Horsefield, [1994] 3 All E.R. 848 (C.A.); Young v. Young (1990), 75 D.L.R. (4th) 46 at 99-115 (BCCA), varied 108 D.L.R. (4th) 193 at 284 (SCC); R. v. Cronier (1981), 63 CCC (2d) 437 (Que. C.A.); R. v. Pawlowski (1992), 13. C.R. (4th) 228 (Ont. Ct.-Gen. Div.), affd. (1993), 79 CCC (3d) 353 (Ont. C.A.); R. v. Brown Shoe Co. of Canada Ltd. (No. 2) (1984), 11 CCC (3d) 514 (Ont. H.C.); R. v. Chapman (2006), 204 CCC (3d) 457 (Ont. C.A.).
  21. R. v. K. (B.) (1995), 102 C.C.C. (3d) 18 (SCC); R. v. Arradi (2003), 173 C.C.C. (3d) 1 (SCC); U.N.A. v. AG Alberta (1992), 71 C.C.C. (3d) 225 (SCC); R. v. Glasner (1994), 93 C.C.C. (3d) 226 (Ont. C.A.).
  22. Supra note 145 at paras. 331 and 333.
  23. R. v. Francis (2006), 207 C.C.C. (3d) 536 at 542-543 (Ont. C.A.). In the U.K., the Runciman Report recommended a report to the Bar Council as one of a number of judicial responses to incompetent or irresponsible conduct by counsel, supra note 32 at p.109:
    "We can see no justification for lawyers refusing to do the work necessary to ensure that the system operates as effectively and as efficiently as possible, whatever grounds there may be for seeking more time to prepare in any individual case. The judge should have available a range of sanctions against poor performance or limited cooperation and should be able, after consideration of the options, to select the one appropriate to the case. The sanctions should, in our view, include a report from the judge on the competence of the lawyer to the taxing officer dealing with his or her fees; or a report to the barrister's head of chambers or to the leader of the circuit or to the Bar Council; or a wasted costs order."
  24. Supra note 145 at paras. 341-343.
  25. Goldberg v. Law Society 2008 L.S.B.C. 13. We note that this same lawyer conducted a long and acrimonious murder trial in Ontario and was subject to criticism from our Court of Appeal for "truculent and obstreperous conduct." See R. v. Snow (2004), 190 C.C.C. (3d) 317 at 326 (Ont.CA).
  26. LSUC v. Kay, [2006] L.S.D.D. No. 39; LSUC v. Carter, [2005] L.S.D.D. No. 57; LSUC v. Wagman, [2006] L.S.D.D. No. 79.
  27. Supra note 126 at p. 159.
  28. Supra note 153, Rule 2.01. Incompetence is also actionable in both tort and contract. See Central Trust Co. v. Rafuse, [1986] 2 SCR 147.
  29. M. Trebilcock, "Regulating Legal Competence" (2001) 34 Canadian Business Law Journal 444; H. Arthurs, "The Dead Parrott: Does Professional Self-Regulation Exhibit Vital Signs?" (1995) 33 Alta. L. Rev. 800; G. Mackenzie, Lawyers and Ethics, Professional Responsibility and Discipline (Toronto: Thomson Canada Ltd., 2006), 4th Ed., chapter 24.
  30. Supra note 95.
  31. Supra notes 138 and 139.
  32. G. Benson-Amram, "Protecting the Integrity of the Court: Trial Court Responsibility for Preventing Ineffective Assistance of Counsel in Criminal Cases" (2004) 29 N.Y.U. Rev. of Law and Social Change, 425 at 452.
  33. (1983), 8 C.C.C. (3d) 18 at pp. 20-21 and 22 (Ont. C.A.).
  34. [1990] 3 SCR 1235 at para. 21.
  35. Re Milligan (1991), 1 C.P.C. (3d) 12 (Ont. Ct.-Gen. Div.).
  36. Supra note 95 at paras. 58 and 72.
  37. W. Schwarzer, "Dealing with Incompetent Counsel - the Trial Judge's Role" (1980) 93 Harv. L. R. 633. Also see P. Calarco, "Not in My Court You Don't! The Right of Audience and Enforcement of Ethical Conduct" (2008) 54 C.L.Q. 130.
  38. The Honourable Mr. Justice C. Hill, "The Under-Represented Accused", March, 2008, unpublished, at pp. 27-32; "Ineffective Assistance of Counsel", December, 2002, unpublished, at pp. 27-28.
  39. Op. cit. at pp. 650 and 662-664.
  40. "The Under-Represented Accused", supra note 184 at pp.39-49; "Ineffective Assistance of Counsel", supra note 184 at pp. 30-35.
  41. Crown Prosecution Service Inspectorate Act 2000 (U. K.), 2000, c.10, s.2(1)(b).
  42. Review of the Investigation and Criminal Proceedings Relating to the Jubilee Line Case, HM Chief Inspector Stephen Wooler, (London: HMCPSI, 2006) p.(i).
    Online: http://www.hmcpsi.gov.uk/reports/JubileeLineReponly.pdf
  43. A Fairer Deal for Legal Aid, the Secretary of State for Constitutional Affairs and Lord Chancellor (London: Department for Constitutional Affairs, 2005) at p. 26. Online: http://www.dca.gov.uk/laid/laidfullpaper.pdf

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