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Defence counsel not alter egos of clients: judge

|Written By Yamri Taddese

Defence lawyers aren’t the alter egos of their clients, a Superior Court judge said in a recent ruling denouncing what he called a misunderstanding of a client-solicitor relationship.

Questions around how to direct the case and what questions to ask are something ‘defence counsel knows best,’ says Daniel Brown.

In the matter of Ronald Faulkner, a former lawyer charged in a 17-count indictment with criminal harassment, breach of recognizance, and attempt to obstruct justice, Justice Michael Code said Faulkner’s insistence on making all of the calls when it came to his representation was part of the reason behind a more than four-year delay in his trial.

Before pleading guilty to several of the indictments, Faulkner argued the lag was “a systematic delay” and asked for a stay of proceedings. But in a decision dated May 23, Code attributed the delay to Faulkner’s own actions and a legitimate need to prepare for the voluminous case.

“In spite of Faulkner’s subsequent guilty pleas, I will try to make these reasons as thorough as possible,” said Code in a ruling aimed at vindicating the justice system.

“Faulkner has bitterly criticized the criminal justice system in Ontario and I hope to demonstrate that his criticism, in this particular case, has no merit.”

Faulkner discharged several of his lawyers before the court appointed counsel to act on his behalf, Code noted in R. v. Faulkner. What’s more, he required the appointed counsel to run all questions for cross-examination by him before posing them in court.

In November 2009 on the fifth day of the preliminary inquiry, Faulkner’s court-appointed counsel said she wasn’t ready to proceed as Faulkner had read only one of the 130 pages in a document she gave him, according to Code.

“I won’t be able to proceed because he has to read these questions and I need to have instructions, because he hasn’t read them,” the ruling quotes counsel as saying.

“He has only read one page . . . I want to put it on the record that because Mr. Faulkner has not read my questions . . . that I prepared for him on his behalf, I’m not prepared to properly represent him . . . So, I don’t think it would be . . . in the fairness of justice . . . to continue the preliminary hearing if he hasn’t read these questions.”

The lawyer erred in thinking she had to get a green light from Faulkner before making every move, the judge said.

“In light of the above authorities, it is my view that Faulkner fundamentally misconceived the nature of the solicitor and client relationship. Appointed counsel should never have acceded to his misconceived view by agreeing to let him review and control her cross-examination.

“It was her duty to decide what questions to ask, and how to ask them, after meeting with the client, interviewing the client, preparing the case, and discussing the theory of the defence.”

Often, the most difficult client is another lawyer, says defence counsel Jeff Hershberg.

“When it comes to a client instructing a lawyer, it’s a difficult line that a lawyer faces. The typical client hires a lawyer because they don’t necessarily know the law to a great degree and need to rely on [the lawyer’s] skills and education and history in properly defending them.”

When he finishes cross-examining a witness, Hershberg says he asks his client if there’s anything else he should address. “They’ll tell me something, but I’ll decide whether it’s important or not. I don’t normally let the client dictate what I’ll ask.”

Toronto criminal lawyer Daniel Brown says there are only a limited number of circumstances when a criminal lawyer must act exactly in accordance with a client’s wishes. Two of those instances, he notes, relate to whether or not clients want to testify on their own behalf as well as decisions about the kind of trial they’ll have.

“But what questions are asked, how they are asked, the approach to the case is something that the defence counsel knows best. What this case says and recognizes really is that [Faulkner] had two options: Either he could get on the same page with his defence lawyer or he could discharge his defence lawyer and find someone else willing to use his approach or represent himself.

“The whole idea that he’d tell the defence lawyer what to do, what to say, what to ask, and everything had to be expressly approved by him is something very contrary to the solicitor-client relationship.”

When a lawyer puts together a 130-page cross-examination, “that’s a lot of work,” says Hershberg. And taking an entire morning to read one page of a report seems strange, he adds. “If a client tried to do that to me, I would probably seek to remove myself.”

When it comes to the idea behind s. 11b of the Charter of Rights and Freedoms that deals with unreasonable delay, Code got it right, says Brown. “The delay . . . has to be at the fault of the Crown where the system is unable to accommodate a case ready to go to trial,” he says. “What Justice Code said here was that this was a case where the delay was caused primarily by the actions of the accused, his decision to do certain things such as to discharge his counsel.”

Besides his findings on the solicitor-client relationship, Code took Legal Aid Ontario to task for its involvement in appointing counsel under s. 486.3 of the Criminal Code who didn’t understand their duties. “Legal Aid assisted in these appointments. A number of the difficulties in this case arose because appointed counsel allowed Faulkner to oversee, vet, and dictate their cross-examinations of the complainant. In my view, greater care needs to be taken in the appointment of s. 486.3 counsel and, in particular, legal aid should only allow responsible and experienced lawyers to be paid from public funds, when taking on this role,” wrote Code, noting that the current counsel appointed as amicus curiae had done his job properly.

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