THE “GOOD” CRIMINAL LAW BARRISTER

Austin. M. Cooper Q.C.*

The Concept of Professionalism

The Canadian justice system acknowledges the special professional status of barristers

who appear in the criminal courts. It requires that they be specially qualified. The qualifications include

meeting education and professional standards, and achievement of expertise in their field. Their status

entitles members of the defence bar to practice independently from the State in all its pervasive

manifestations. That independence is considered one of the hallmarks of a free society. Crown

counsel, as public officers, also perform an important role in the administration of justice in the criminal

courts.

As a function of their professional status, barristers have a responsibility to practice in a

spirit of public service. Professionalism is about dedication to justice and the public good. The

commitment to professionalism also infuses two other values: a commitment to competence or learning,

and a commitment to ethics or decency. And, integrity is at the heart of every barrister’s function.

See:

- Attorney-General v. Law Society of B.C. [1982], S.C.R. 307, per Estey J. at 335-336. Referred to
recently in Fortin v. Chretien [2001], 2 S.C.R. 500 at para. 17.
- D. Mullan, Address (Call to the Bar and Convocation, February 14, 2002), at
http://qsilver.queensu.ca/law/news/inthenews/convocationaddress.htm

____________________
* The author is grateful to Anida Chiodo, B.A., M.A., LL.B. for her assistance in preparing this paper.
 THE “GOOD” CRIMINAL LAW BARRISTER

- Chief Justice Roy McMurtry, ADefining Professionalism@ (Advisory Committee on

Professionalism, Working Group on the Definition of Professionalism@, draft October 2001) at
www.oba.org/en/pdf/definingprofessoct2001revdec.pdf.
- Rt. Hon. Beverley McLachlin, C.J.C., AThree Ingredients to Legal Professionalism@ (Call to the Bar
Convocation in Ottawa, February 2000).
- Hon. Justice Rosalie Silberman Abella, Address (The Law Society of Upper Canada Professionalism
Revisted, Opening Address Benchers= Retreat, Hockley Valley Resort, Ontario, October 14, 1999), at
http://www.ontariocourts.on.ca/court_of_appeal/speeches/professionalism.htp
- Ontario, Report of the Attorney General=s Advisory Committee, Charge Screening, Disclosure, and
Resolution Discussions (Ontario: Queen=s Printer, 1993) at 29. [hereinafter, The Martin Report]
- Hon. Justice Frank Iacobucci, AThe Practice of Law: Business and Professionalism@ (November
1991) 49(6) The Advocate 859.

Professional and Judicial Governance.

Beyond the values and commitments inherent in the concept of professionalism, barristers who

appear in the criminal courts in Canada are required to observe standards set by the governing law

societies of the provinces in which they practice. They may be subject to discipline if they should act

contrary to the rules of professional conduct. As well, they are supervised by the judges of the courts

before whom they appear. If they act improperly they may be denied an audience, or, in serious cases,

may be cited for contempt.

See:

- Law Society of Upper Canada Rules of Professional Conduct (Toronto, Ontario, Law Society of
Upper Canada, June 22, 2000, last amended on October 23, 2003).
- R v. Neil [2002], 3 S.C.R. 631 at paras. 12-16. This cases addressed the issue of conflicts of
interests and the duty of loyalty owed by counsel to a current client.

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Ethical and Moral Considerations for Defence Counsel

The question often asked of defence lawyers by those with scant knowledge of the justice system

is, AHow can you represent someone you know is guilty?@ The question expresses concerns about the

moral quality of the function of barristers in the criminal justice system. Part of the answer is that defence

counsel have a recognized role in that system which society will respect, and in some cases, fund. The

answer also involves recognition of the professional responsibility of defence counsel to observe legal and

ethical boundaries in exercising their function. The answer may be informed by the knowledge that a

barrister may have little sympathy with his client or his cause and will undertake the defence out of a sense

of professional obligation. Occasionally, a barrister may choose to reject a retainer, having regard to the

criminal offence charged; however, there are commentators that would not allow the barrister that choice.

See:

- Hon. Michel Proulx and D. Layton, Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001) at
Chapter 2, Choosing and Refusing Clients, Parts E & F.
- A.C. Hutchinson, Legal Ethics and Professional Responsibility (Toronto: Irwin Law, 1999), Chapter
5, Dealing With Clients - From Start to Finish, Part A: The Choice of Clients.
- Hon. Michel Proulx, AThe Defense of the Unpopular or Repugnant Client: Some of the Hardest
Questions@ (The Annual John Sopinka Advocacy Lecture, Annual Convention & Education Programme
of the Ontario Criminal Lawyers= Association, November 12, 1999).
- M. Blake and A. Ashworth, ASome Ethical Issues in Prosecuting and Defending Criminal Cases@
(1998) Crim. L. R. 16.

It is trite law that the Canadian system of criminal justice is based on the presumption that all

persons charged with crimes are innocent until proved guilty at a public trial. The trial is conducted before

an independent judge pursuant to an adversarial system. The state is represented by counsel who has the

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duty to present evidence to establish the guilt of the defendant beyond a reasonable doubt. The evidence

may be challenged by the person accused, who must be present at her trial, and who may adduce other

evidence to support her innocence. The defendant may conduct her defence by herself, or may choose to

retain counsel to conduct it for her. It is to the latter mandate that the concept of professionalism and the

morality of defence counsel=s role is relevant.

The system of criminal justice promotes the right of defence counsel, to >stand in the shoes= of

defendants, and do for them in preparation for trial and at the trial what defendants would do for

themselves if they had the skill and knowledge. Counsel have a duty of loyalty to their clients and a

fiduciary duty to serve them conscientiously. They must keep in confidence their clients=communications.

They must present to the court every fact and argument that supports the clients= defences, and obtain for

them the most favourable results possible.

See:

- Rondel v. Worsley, [1969] 1 A.C.191 (H.L.), per Lord Reid at 227: AEvery counsel has a duty to
his client fearlessly to raise every issue, advance every argument, and ask every question . . .
which he thinks will help his clients' case."
- Law Society of Upper Canada, Rules of Professional Conduct Rule 4.01(1) and commentary; Rule
2.03 and commentary.

Although some clients may consider their defence counsel unrestricted in their duty to help them

establish their innocence, counsel have other obligations that may limit the performance of their mandate.

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Beyond their fiduciary duty to their clients, defence counsel, as professionals, have obligations to the

administration of justice. These may include the observance of ethical and legal rules laid down by the

legislatures, the legal profession, and the courts. Accordingly, the concept of Aprofessionalism@ as applied

to defence counsel involves not only the fiduciary obligations to the client, but also the integrity and

restraint with which counsel meet their other professional obligations.

On occasion, counsels= recognition of their professional obligations may cause some tension with

their clients. In Rondel v.Worsley, supra, Lord Reid wrote at pages 227: ABut, as an officer of the court

concerned in the administration of justice, [defence counsel] has an overriding duty to the court, to the

standards of his profession, and to the public, which may and often does lead to a conflict with his client=s

wishes or with what the client thinks are his personal interests.@

See also:

- The Martin Report, supra at p.33

- A.C. Hutchinson, supra, at Chapter 9: Criminal Lawyers: Putting Up a Defence.
- M. Blake and A. Ashworth, supra.

Tension may arise, for example, when a client instructs her counsel to lead evidence at her trial

when counsel knows that the evidence is false. Counsel is prohibited from leading such evidence, and must

refuse. The client may view the refusal as a breach of counsel=s fiduciary duty. However, the court and the

Law Society demand that the prohibition be observed.

See:

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- Law Society of Upper Canada, Rules of Professional Conduct Rule 4.01(1) and commentary; Rule
4.01(2)(b),(e),(f), and (g).
- S. Lubet, S. Block and C. Tape, Modern Trial Advocacy, 2nd ed. (Notre Dame, Ind.: National Institute
for Trial Advocacy, Notre Dame Law School, 2000), Chapter 1: Case Analysis, Persuassion &
Storytelling, Part II AThe Ethics of Persuasive Storytelling.@
- The Martin Report, supra, at 30-31.
- M. Blake and A. Ashworth, supra, at 21.

There is another potential for tension when, during a trial, counsel refers the presiding judge to a

binding legal authority that impacts adversely on her client=s case. The client may feel that the disclosure

undermined his case, and that he was betrayed. But the rules that govern the professional require that she

disclose the authority.

See:

- Law Society of Upper Canada, Rules of Professional Conduct, Rule 4.01(2)(h).

- M. Blake and A. Ashworth, supra, at 22.

Although defence counsel may interview witnesses, they may not advise them as to what to say, or

to change their stories. If they advise them improperly, they are at risk of prosecution for attempting to

obstruct justice.

In addition, defence counsel may be under constraints as to the use of physical evidence that they

receive from their client or another person. In some circumstances, they may be compelled to act contrary

to the instructions of their client in relation to the custody of that evidence.

See:

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- R. v. Murray (2000), 144 C.C.C. (3d) 289 (Ont. S.C.J.).

- A.M. Cooper, AThe Ken Murray Case: Defence Counsel=s Dilemma@ (Mar. 2003) 47 Crim. L.Q. 141.
- Criminal Lawyers= Association (April 1997 Newsletter) ASmoking Guns, Bloody Shirts, and Videotapes:
A Virtual Round Table Discussion@ at http://www.criminallawyers.ca/newslett/apr97/smoke.htm

It is submitted that the observance of professional and ethical constraints of that nature distinguish

counsel from their clients. Our system of justice permits a client who is in fact guilty of a crime to be

represented by counsel. However, the same system requires the barrister to observe rules that may conflict

with the egocentric interest of their client. Although a client may be guilty of the crime charged, counsel is

not entitled to act disreputably in conducting her defence. Society=s recognition and support of counsels=

mandate to practice within those rules is, perhaps, a further answer to the moral concerns expressed by

members of the public as to defence counsels= role.

See:

- A. C. Hutchinson, supra, at Chapter 9: Criminal Lawyers: Putting Up A Defence

- S. Lubet, S. Block, and C. Tape, supra.
- Hon. Michel Proulx, supra.

It is my position, that >good= criminal law barristers will observe such rules despite conflicts they

may cause with clients. It is a matter of professionalism. There may be instances where counsel may have

to exercise skilful diplomacy to retain the confidence of their clients. In some cases counsel may be

discharged by their clients because of such conflicts.

Some Practical Considerations for Defence Counsel

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The good defence barrister, rather than the client, should direct the conduct of the defence.

However, counsel is responsible to act in good faith and in accordance with reasonable professional

standards, including the exercise of skill and judgment. If a client insists on controlling the barrister=s

management of the defence in a manner that the barrister considers unethical or gravely harmful to the

case, the barrister may have to consider whether to continue to act.

See:

- G. A. Martin, AThe Role and Responsibility of the Defence Advocate@ (1969) 12 Crim. L.Q. 376 at 382
where he wrote: AThe defence counsel is not the alter ego of the client. The function of defence counsel
is to provide professional assistance and advice. He must, accordingly, exercise his professional skill
and judgment in the conduct of the case and not allow himself to be a mere mouthpiece for the client.@
See also: A. Maloney, Q.C. AThe Role of the Independent Bar@ (1979) Law Society of Upper Canada
Special Lectures 49 at 61-62.
- R. v. B.(G.D.) (2000), 143 C.C.C. (3d) 289 (S.C.C.) at paras. 32-35 where Major J., writing for the
court, held that the decision by defence counsel not to use the complainant=s videotaped statement during
the cross-examination of the complainant was made in good faith and in the best interests of the client
and therefore there was no miscarriage of justice. Major J. held at para. 34: AWhere, in the course of a
trial, counsel makes a decision in good faith and in the best interests of his client, a court should not look
behind it save only to prevent a miscarriage of justice. While it is not the case that defence lawyers must
always obtain express approval for each and every decision made by them in relation to the conduct of
the defence, there are decisions such as whether or not to plead guilty, or whether or not to testify that
defence counsel are ethically bound to discuss with the client and regarding which they must obtain
instructions. The failure to do so may in some circumstances raise questions of procedural fairness and
the reliability of the result leading to a miscarriage of justice@.
- R.v.Samra (1998), 129 C.C.C.(3d) 144 (Ont. C.A.), leave to appeal ref=d (1997) 46 C.R.R. (2d) 276n
(S.C.C.) at paras. 31-33 where Rosenberg J.A. held that the fact that counsel made legal submissions at
the trial that did not coincide with the accused=s views did not place counsel in a disqualifying conflict of
interest or compromise the fairness of the trial.
- R. v. White (1997), 114 C.C.C. (3d) 225 (Ont. C.A.) at 253 where the court held that AOnce a client
has pleaded not guilty, apart from a few fundamental decisions such as whether the client should testify,
defence counsel decides how a case should be conducted. Defence counsel are not mere mouthpieces
for their clients. They conduct the case by exercising their professional skill and judgment in what they
consider to be the best interests of their clients. Their control over the conduct of the case ordinarily
includes deciding what witnesses to call, what witnesses to cross-examine and how to cross-examine.@
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See also R. v. Smith (1997), 120 C.C.C. (3d) 500 (Ont. C.A.) at 506-508, 510-511.
- R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal ref=d (1997), 111 C.C.C. (3d) vi
(S.C.C.) at 77-79 Austin J.A. held that the client=s decision to refuse to follow his counsel=s advice to
give evidence in his own defence was made with a full appreciation of the likely consequences and
therefore counsel did not act improperly.

Contrast with:

- R. v. Taylor (1992), 77 C.C.C. (3d) 551 (Ont. C.A.) at 567 where Lacourciere J.A., writing for the
court, held that AAn accused who has not been found unfit to stand trial must be permitted to conduct
his own defence, even if this mean that the accused may act to his own detriment in doing so. The
autonomy of the accused in the adversarial system requires that the accused should be able to make such
fundamental decisions [namely the decision of the defence to present and to present it as he chooses]
and assume the risks involved.@
- R. v. Swain (1991), 63 C.C.C. (3d) 481 (S.C.C.) at 505-506 Lamer C.J.C., as he then was, held:
AGiven that the principles of fundamental justice contemplate an accusatorial and adversarial system of
criminal justice which is founded on respect for the autonomy and dignity of human beings, it seems
clear to me that the principles of fundamental justice must also require that an accused person have the
right to control his or her own defence ... An accused person has control over the decision of whether
to have counsel, whether to testify on his or her own behalf, and what witnesses to call. This is a
reflection of our society=s traditional respect for individual autonomy within an adversarial system@
[emphasis added].

It has been said that the only decisions that the barrister should leave to the client are whether she

should plead guilty or not guilty to the offence charged, and whether to give evidence in her defence at the

trial. And even if the client has made those decisions, they may be overridden by the barrister in light of

facts disclosed by the client. For example, if the client denies that she is guilty, the barrister is precluded

from entering a plea of guilty on her behalf regardless of her instructions, and no matter how urgently the

client may wish to plead to have the matter resolved. If the client has admitted to her counsel that she has

committed the actus reus of the offence charged, the barrister may not call her to testify falsely that she did

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not do the act charged, and thereby suborn perjury.

See:

- G.A. Martin, supra.

- M. Proulx and D. Layton, supra, at Chapter 3: Decision Making, Part C: Canadian Case Law and
Commentary on Decision-Making Authority and Chapter 8: Plea Discussions, Part K, Duty to Advise
Client.
- Law Society of Upper Canada Rules of Professional Conduct, Rule 4.01(8) and (9).

Ethical considerations for Crown Counsel

Crown counsel are officers of the Court. As such they fulfil a public function which must be carried

out fairly and in the public interest. They are public officers engaged in the administration of justice. In

Boucher v. The Queen, [1955] S.C.R. 16 Rand J. wrote at 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a

conviction; it is to lay before a jury what the Crown considers to be credible evidence
relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal
proof of the facts is presented: it should be done firmly and pressed to its legitimate
strength, but it must also be done fairly. The role of prosecutor excludes any notion of
winning or losing; his function is a matter of public duty than which in civil life there can be
none charged with greater responsibility. It is to be efficiently performed with an ingrained
sense of the dignity, the seriousness and the justness of judicial proceedings.

See also:

- R. v. Savion and Mizrahi (1980), 52 C.C.C. (2d) 276 (Ont. C.A.) per Zuber J.A. at 289.
- A.C. Hutchinson, supra, Chapter 9: Criminal Lawyers: Putting Up A Defence, Part E: The Case for the
Prosecution.
- Law Society of Upper Canada Rules of Professional Conduct, Rule 4.01(3) and commentary.
- The Martin Report, supra, at 31-34.
- Ontario: The Commission on Proceedings Involving Guy Paul Morin, Vol. 1-2 (Ontario: Queen=s
Printer, 1998) at 1040-1042.

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Crown counsel have a legal obligation to make disclosure to the defence of evidence in their

possession. The legal duty of disclosure may have an ethical component. For example, there is an

obligation to disclose to the defendant evidence that may assist the defence. It is a professional obligation,

the breach of which may lead to a mistrial or to a stay of the prosecution. In R. v. Stinchcombe, [1991] 3

S.C.R. 326, Sopinka J. speaking for the Supreme Court of Canada wrote at page 345:

[A]ll statements obtained from persons who have provided relevant information to the
authorities should be produced notwithstanding that they are not proposed as Crown
witnesses. When statements are not in existence, other information such as notes should be
produced, and, if there are no notes, then in addition to the name, address and occupation
of the witness, all information in the possession of the prosecution relating to any relevant
evidence that the person could give should be supplied. ... If the information is of no use
then presumably it is irrelevant and will be excluded in the discretion of the Crown. If the
information is of some use then it is relevant and the determination as to whether it is
sufficiently useful to put into evidence should be made by the defence and not the
prosecutor.

See also:

- R. v. G.G.M, [2004] N.S.J. No.8 (N.S.C.A.).

- R. v. Atikian, [1992] O.J. No. 3045 (Ont. Gen. Div.).

The prosecutor must not mislead the court. For example, she must not conceal from the court

arrangements made with disreputable witnesses for the Crown that might lead the court to more readily

accept their credibility, and the revelation of which might detract from their credibility.

See:

- The Commission on Proceedings Involving Guy Paul Morin, supra, at 545-556.

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- Law Society of Upper Canada Rules of Professional Conduct, Rule 4.01(3) and commentary.

The Ontario Crown Policy Manual requires Crown Attorneys to determine whether, based on all

the admissible evidence, there is a reasonable prospect of conviction and whether it is in the public interest

to continue with a prosecution. If not, they should recommend that the charge(s) not proceed.

See:

- The Martin Report, supra, at 65-68.

- R. v. Laforme, [2003] O.J. No. 845 (Ont. Sup. Ct. J.) at para. 7. This case involved an application
for judicial review of the Crown attorney=s decision not to pursue a prosecution. Kent J. held that
Crown counsel did not act in bad faith where he reviewed the disclosure materials and applied the
threshold test as set out in the Charge Screening section of the Crown Policy Manual when concluding
that there was no reasonable prospect of conviction. See also R. v. Bain, [2003] O.J. No. 130 (Ont.
Sup. Ct. J.) At paras. 7-8.
- Perks v. Ontario (Attorney General), [1998] O.J. No. 421 (Ont. Ct. J. Gen. Div.) at para. 3 where
Dambrot J. held that according to the charge screening principles established by the Ontario Crown
Policy Manual, Abefore a prosecution goes forward, a prosecutor must first determine that there is a
reasonable prospect of conviction, taking into consideration likely defences, and must then decide if the
prosecution is in the public interest.@

Crown counsel is not entitled, knowingly to present false evidence to the court. To do so would

not only constitute professional misconduct but could also constitute the crime of suborning perjury.

Some Practical Considerations for Crown Counsel.

In the interest of a fair trial, decisions of appeal courts have placed limits on how a Crown

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prosecutor may cross-examine an accused.

See:

- R. v. Wojcik (2002), 166 C.C.C. (3d) 418 (Man. C.A.). In this case, the court held that Crown
counsel cannot cross-examine the accused as to his failure to provide the police with an explanation for
what occurred or with any other information. Such cross-examination is highly improper as it
undermines the presumption of innocence and the right to remain silent.
- R. v. Bouhass (2002), 169 C.C.C. (3d) 444 (Ont. C.A.). At para. 11 the court held that Athe tone of
the cross-examination was often sarcastic, personally abusive and derisive. The language used was
emotive and it measured the appellant against a severe moralistic standard. The appellant was attacked
for his lifestyle ... his sexual activities, his supposed heroin addition and his >thievery=.@ In addition,
Crown counsel repeatedly referred to the appellant as a Abare-faced liar@ and regularly injected his
personal views and editorial comments into the questions he was asking.
- R. v. Robinson (2001), 153 C.C.C. (3d) 398 (Ont. C.A.) at para. 35 Rosenberg J.A. held: AIn my
view, Crown counsel=s cross-examination of the appellant was highly improper. From start to finish, it
was designed to demean and denigrate the appellant and portray him as a fraudsman, a freeloader and a
demented sexual pervert. Many of the questions posed were laced with sarcasm and framed in a manner
that made it apparent that Crown counsel personally held the appellant in utter contempt. In many
respects, this was not a cross-examination but an attempt at a character assassination.@
- R. v. Schell (2000), 148 C.C.C. (3d) 219 (Ont. C.A.): at paras. 46, 64-66 where Rosenberg J.A.
held that it is inappropriate to ask an accused questions on his choice to remain silent and his
use of the disclosure. See also R. v. Parrington (1985), 20 C.C.C. (3d) 184 (Ont.C.A.) at 188.
- R. v. Henderson (1999), 134 C.C.C. (3d) 131 (Ont. C.A.): where it was held that cross-examination is
improper when questions require the witness to comment upon the complainant=s credibility or give an
opinion that he was not qualified to give.
- R. v. Kusk (1999), 132 C.C.C. (3d) 559 (Alta. C.A.): it is improper to ask the accused whether
the complainant has a motive to lie or why other witnesses would lie or falsely implicate the
accused. See also: R. v. N. (P.L.F.) (1999), 138 C.C.C. (3d) 49 (Man. C.A.); R. v. Vandenberghe
(1995), 96 C.C.C. (3d) 371 (Ont. C.A.); R. v. DeFrancesca (1995), 104 C.C.C. (3d) 189 (Ont.
C.A.); leave to appeal refused (1996), 104 C.C.C. (3d) vi (S.C.C.).
- R. v. Calder (1996), 105 C.C.C. (3d) 1 (S.C.C.): Crown counsel cannot generally cross-examine
an accused as to his prior inconsistent statements to authorities not proven to be voluntary or as
to prior inconsistent statements excluded during the Crown=s case as violative of the Charter of
Rights and Freedoms.
- R. v. Daly (1992), 57 O.A.C. 70 (Ont. C.A.) at 76. Crown counsel=s cross-examination of the
appellant was Avigorous@ and included sarcasm and editorializing. At times, Crown counsel asked the
appellant to comment on the veracity of certain Crown witnesses. The court held that while Crown
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counsel=s the cross-examination of the appellant was improper it did not occasion a miscarriage of
justice.
- R. v. Kuldip (1990), 61 C.C.C. (3d) 385 (S.C.C.): there are limits placed on the Crown regarding
cross-examination on the accused=s prior testimony. See also: Noel v. The Queen, (2002) 168
C.C.C. (3d) 193 (S.C.C.).
- R. v. Yakeleya (1985), 20 C.C.C. (2d) 193 (Ont. C.A.): it is improper to ask the accused
whether the complainant is lying or committing perjury.

There are also limits on the manner in which a prosecuting barrister may present his or her

argument to a jury. They may not appeal to the jury=s emotions in an inflammatory way. They may not

misstate the evidence adduced at the trial. Failure to observe these limits may lead an appellate court to set

aside a conviction.

See:

- R. v. Munroe (1995), 96 C.C.C. (3d) 431 (Ont. C.A.) at paras. 36-54. In this case, the court held that
while Crown counsel=s address to the jury was highly inflammatory, there was no miscarriage of justice
because of the judge=s charge to the jury.
- R. v. Charest (1990), 57 C.C.C. (3d) 312 (Que. C.A.) at p. 331-32 where the court held that Crown
counsel expressed, in moralistic and hostile terms, his personal opinion of the appellant=s guilt and the
appellant=s character. He used his oratorical skill to inflame the jury=s passion and to appeal to their
emotions. As a result, a new trial was ordered.
- R. v. Labarre (1978), 45 C.C.C. (2d) 171 (Que. C.A.) at 174-175. This case involved a charge of
criminal negligence causing death, resulting from impaired driving. During the closing address to the
jury, the Crown made the following statements: AYou know, [the deceased] was twenty-three years old;
she had the right to return home at night. [The deceased=s mother] also had a right to expect that child!
Did they deserve that? Would you deserve tomorrow morning to lose one of your children, twenty-three
years old, struck by an individual with a brain swimming in fourteen ounces of alcohol.@ Montgomery
J.A. held that the Crown, in making these statements (among others) went too far in appealing to the
emotions and fears of the jurors and as such, a new trial was ordered.
- Pisani v. R. (1970), 1 C.C.C. (2d) 477 (S.C.C.) at 478 Laskin J., in ordering a new trial, held that
AOver-enthusiasm for the strength of the case for the prosecution, manifested in addressing the jury,
may be forgivable especially when tempered by a proper caution by the trial judge in his charge ... A
different situation exists where that enthusiasm is coupled with or consists of putting before the jury, as

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facts to be considered for conviction, matters of which there is no evidence and which come from
Crown counsel=s personal experience and observations.@
- Boucher v. R., supra.
- Hon. Michel Proulx and D. Layton, Chapter 12: The Prosecutor, Part E, Ethical Restraints on
Advocacy.

Professionalism and the Desire to Win

Defence counsel are required to use their best efforts to achieve for their clients what they would

seek to achieve for themselves. That is the professional mandate assigned to them by the Canadian system

of justice. In most cases, that would involve assisting them lawfully to obtain a verdict of not guilty. From

the defendants= points of view, they trust counsel to do all in their power to win their cases. If counsel are

unenthusiastic about the result of their work, they would not be respecting their fiduciary obligations to

their clients.

A good criminal prosecutor should present conscientiously the admissible evidence available to

prove the facts supporting the charge. Crown counsel=s obligations would appear to be somewhat more

narrowly defined than those of defence counsel by the decision in Boucher v. The Queen, supra., but he

or she may prosecute the case firmly so that justice is done. I submit it is proper for a prosecutor to seek

a conviction as an aspect of seeking justice in the public interest. However they must act in a manner that

strives to ensure that the defendant has a fair trial. The recent decision by the Ontario Superior Court of

Justice in R. v. Felderhof, [2002] O.J. 4103 addresses this issue. Campbell J. at paras. 22-23, writes:

[22] It is improper for Crown counsel to seek a conviction in the sense of seeking a

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conviction at all costs, or breaching the quasi-judicial duty of fairness and evenhandedness.
This principle is sometimes expressed by saying that it is not the function of the prosecutor
"simply" to seek a conviction, because his or her quasi judicial duties involve much more
than simply seeking a conviction. ... In this expression of the principle everything turns on
the qualification "simply", because it is appropriate for a Crown prosecutor to seek a
conviction so long as he or she does not seek it unfairly or at all costs.
[23] Far from it being improper [for] Crown counsel to seek a conviction, it is appropriate
for a prosecutor to seek a conviction as an aspect of seeking justice in the public interest.

See also:
- Hon. Michel Proulx and Layton, supra, at 644, 664, 677, 678, and 697.

Accordingly, good criminal law barristers may seek success in the courtroom, provided they

practice within the legal and ethical rules which govern their profession. If they triumph by disregarding the

rules, they are professionally diminished. It is their professionalism that distinguishes good barristers from

the clients they represent or the defendants they prosecute.

Professionalism and Civility

In Ross v. Lamport, [1956] 2 D.L.R. (2d) 225 at 234, Rand J., referring to the decision in Dale

v. Toronto R.W. Co. wrote: AA law suit is not a tea party, and except where there has been a clear and

objectionable excess, we should hesitate to put shackles on the traditional scope allowed counsel in his

plea to the tribunal of his countrymen.@

See also:

- R. v. Felderhof, [2002] O.J. No. 4103 (Ont. Sup. Ct. J.), supra, at para. 275 where Campbell J.
wrote: ATo be the subject of professional vilification may not be easy. But a hard fought trial is not a tea
party.@
- Dale v. Toronto R.W. Co., [1915] 34 O.L.R. 104 (Ont. Sup. Ct. App. Div.) at 108.

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Perhaps because trials are necessarily adversarial and confrontational, barristers are sometimes

caricatured as being Ahired guns@ with little sense of dignity or honour.

See:

- Hon. Michel Proulx, supra.

- A. C. Hutchinson, supra, Chapter 2: Traditional Accounts: Contents and Criticism, Part A: Hired
Hands.
- R. F. Devlin, ANormative, and Somewhere to Go? Reflections on Professional Responsibility (1995)
33(4) Alta. L. Rev. 924 at fn. 72.
- J. Jaffey, AProfessionalism Served As Theme of Advocates= Society Symposium@ (June 16, 2000)
20(7) The Lawyers Weekly.

Perhaps, in light of the anger and aggression expressed by some defendants in criminal cases,

their counsel feel justified in unleashing personal attacks on counsel who oppose them. Perhaps they are

concerned that their clients will be disappointed if they do not. It is submitted that counsel have a

professional responsibility to respect the personal integrity of opposing counsel. In Britain, the practice

whereby barristers refer to opposing counsel as Amy friend@ reflects the respect of the bar for restraint

and dignity, in the trial process. That practice has been imported in some measure into Canada, and, in

my view, should be more widely adopted by the bar here.

Counsel have a professional responsibility to preserve the dignity of the forum in which they

practice; justice may not be seen to be done if the courtroom is viewed as a vicious arena. Civility on the

part of counsel is not inconsistent with the vigour inherent in practice in the criminal courts. Civility is one

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of the values that infuses professionalism.

The issue of civility in the courtroom has been addressed recently by members of the bench and

bar. For example, the Advocates Society of Ontario has published a pamphlet entitled Principles of

Civility for Advocates. In it are articulated some core principles of civil conduct for lawyers. In the

Introduction, Ontario Chief Justice McMurtry wrote: Athe level of civility at the Bar relates directly to the

level of professionalism of the legal profession.@ In the same document he wrote in the Preamble:

Civility amongst those entrusted with the administration of justice is central to its
effectiveness and to the public=s confidence in that system. Civility ensures matters before
the Court are resolved in an orderly way and helps preserve the role of Counsel in the
justice system as an honourable one.

Litigation, however, whether before a Court or tribunal is not a Atea party@. Counsel are
bound to vigorously advance their client=s case, fairly and honourably. Accordingly,
Counsel=s role is openly and necessarily partisan and nothing which follows is intended to
undermine those principles. But Counsel can disagree, even vigorously, without being
disagreeable. Whether among Counsel or before the Courts, antagonistic or acrimonious
behaviour is not conducive to effective advocacy. Rather, civility is the hallmark of our
best Counsel.

See :

- The Advocates Society, Principles of Civility for Advocates, at:

http://amigocharts.com/amigo/100_Civility.pdf Also available on the Advocates= Society
website.
- J.R. Olchowy, AOn the Loss of Civility and the Need for A Reinvigorated Professionalism:
Objectionable Counsel, Conduct and Its Impact on Trial Fairness@ (2002) 26 Advocates Quarterly 322.
- D. Stockwood, Q.C. AAdvocacy Today: The Decline of Professionalism@ (Oct. 1997) 3 The

Advocates= Soc. J. 1.

In R. v. Felderhof, [2003] O.J. No. 4819 (Ont. C.A.) Rosenberg J.A. in the Ontario Court of

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Appeal, wrote at paragraph 84:

It is important that everyone, including the courts, encourage civility both inside and
outside the courtroom. Professionalism is not inconsistent with vigorous and forceful
advocacy on behalf of a client and is as important in the criminal and quasi-criminal context
as in the civil context. Morden J.A. of this court expressed the matter this way in a 2001
address to the Call to the Bar: ACivility of not just a nice, desirable adornment to
accompany the way lawyers conduct themselves, but, is a duty which is integral to the way
lawyers do their work.@ 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 Nahorney said in her article, AA Noble Profession? A Discussion of
Civility Among Lawyers@ (1999) 12 Georgetown Journal of Legal Ethics 815, at 816-17,
ACivility 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.

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