by Michael Lomer, Scott Fenton & Steven Skurka
A sub-committee of the Criminal Lawyers’ Association was formed as a result of a concern expressed about members of the criminal defence bar in this province being subpoenaed to testify as witnesses against their clients at trial. In the one case brought to the Board of Governor’s attention, a former co-counsel was subpoenaed to testify for the Crown in a murder trial primarily to facilitate obtaining interview notes of a prosecution witness purportedly taken by her in her capacity as defence counsel.
The particular case cited raises issues of serious concern. It is our view that when the prosecution possesses as a tool in its arsenal the ability to penetrate the inner sanctum of the defence lawyers’ brief, it threatens the very fibre of the adversarial system. In quashing the subpoena in the case in question, Mr. Justice O’Driscoll described the impugned subpoena as “ill-conceived” (R. v. Duong, unreported, January 28, 1999 (Ont. Ct. Gen. Div) at p.3).
While the application may be ill-conceived, it is hardly unique. Our limited survey has documented a number of instances where defence counsel have been subpoenaed to testify against their clients or former clients. It is our considered position that this egregious practise undermines the solicitor-client relationship and has the potential consequence of vitiating the constitutionally protected right to counsel of choice. It is a tactic motivated largely by intimidation rather than advocacy.
Counsel have provided us with documented cases where they were subpoenaed to testify against their client after pre-trial discussions; to produce work product of interviews of a witness; to explain the circumstances for the withdrawal of guilty plea; on an 11(b) application under the Charter to account for delay; and to answer to an allegation that they brought pressure to bear on a recanting witness. Another recent practice has been the issuing of subpoenas to defence counsel to testify as to evidence elicited by that defence counsel in third party proceedings.
The entire issue of work product privilege was considered in the decision of Proulx J.A. in R. v. Peruta (1992), 78 C.C.C.(3d) 350 (Que.C.A.). The judgment makes clear that any document such as an investigator’s report, predominantly prepared in anticipation of litigation is covered by the umbrella of privilege. Presumably, this would cover the preparation of any legal research or interview by anyone retained or working together with defence counsel including clerical staff, law students, interpreters, defence experts and Legal Aid officials. It would have a chilling effect on the ability to mount a vigorous defence if the law was otherwise.
While each case has to be viewed on its own merits, certainly the notion of subpoenaing defence counsel resulting from statements made during pre-trial discussions can be dealt with globally. It is our view that it is a practice that can only be viewed as an attempt to inhibit the conduct of the defence and enforce reciprocal disclosure by the defence where none is legally mandated. In one typical example, Andras Schreck was retained by Bruce Olmsted to quash a subpoena he had received compelling him to testify against his own client. At a pre-trial on a charge of sexual assault, Mr. Olmsted had indicated that his client’s anticipated defence would be one of consent. Following the pre-trial he received a subpoena. It was followed subsequently by a letter from the Crown advising that if the defence would be consent, he need not testify, but if some other defence was to be raised he would be compelled to testify. Ultimately the subpoena was quashed.
Courts have uniformly rejected the Crown’s ability to compel testimony by counsel in similar circumstances R. v. L(N.) (1998), 124 C.C.C.(3d) 564 (Ont. Crt. Gen. Div.); R. v. Lake [1977] O.J. No. 5447 (Ont. Ct. Gen. Div.); R. v. Goland, unreported, February 4, 1999 (Ont. Ct. Prov. Div.).
All of the decisions appear to be predicated on the potential disruptions to the efficient and fair administration of justice in this province. Undertakings between counsel are viewed as an integral component to the criminal justice system and the plea bargain process is the avenue by which most criminal cases are resolved. As LeSage, Assoc. C.J. (as he then was) noted in R. v. Bernardo [1994], O.J. No. 1718 (Ont. Ct. Gen. Div.), “… the public interest is well served by encouraging such frank and full discussion between counsel for the accused and counsel for the Crown. The serving to the public and the resulting benefit to the administration of justice in resolving cases that ought to be resolved is substantial.” (at p.7) (see also R. v. Burlingham (1995), 97 C.C.C.(3d) 385 (S.C.C.) at p.399; R. v. Pabani (1994), 89 C.C.C.(3d) 437 (Ont. C.A.) at pp. 442-443; R. v. K.(S), 99 C.C.C. (3d) 376 (Ont. C.A.) at p.382.)
What seems to be unrecognized by the Courts is that as the practice of subpoenaing defence counsel continues undeterred (note the date of the decision in Goland). There is little risk of accountability for the prosecutor involved. We are aware of no case where costs were awarded against the Crown. Indeed, in Bruce Olmsted’s case a request for costs was rejected by the Court.
An application by the Crown to compel counsel to testify against his or her own client exacts an emotional and financial toll to the client. It is extremely disruptive for the lawyer as well (both in the matter the subpoena is directed as well as the further proceedings that must be adjourned to accommodate the lawyer’s presence in compliance with the subpoena). It may create irreparable harm to the solicitor-client relationship and may ultimately deprive the client of counsel of choice. These are all just as serious concerns as the efficient running of the administration of justice and must be advanced vigorously on behalf of the defence bar in this province by our Association.
In this regard, we recommend the following:
- A strike force be created regionally throughout the province to intervene on behalf of the CLA in appropriate cases where defence counsel is subpoenaed and our assistance is sought.
- We take immediate efforts to advance our position on this issue to the Attorney General and the Minister of Justice. It is our position that the subpoena of defence counsel should only be undertaken with the prior approval of a senior Crown official. Furthermore, guidelines be set up and adhered to as to when it is appropriate to issue a subpoena to a defence lawyer.
- Resources should be maintained at the CLA to assist counsel with the application to quash a subpoena. For example, Andras Schreck prepared a factum in relation to this application which can be distributed on request. Equally, the cases noted in this memorandum can be kept on file as well.
- We should track, from our membership, any patterns of problems in particular Crowns’ offices with respect to subpoena issues so that they can be addressed and rectified immediately.
- Wherever possible, costs will be sought as against the Crown in respect to applications to quash subpoenas to defence lawyers.