Counsel should rarely be subpoenaed to testify

The Ontario Court of Appeal has reiterated that only in “exceptional circumstances” should defence lawyers be compelled to testify against their clients.

“Whether as a matter of custom or policy, issuing a summons to counsel for the opposite party to testify against his or her client is virtually unheard of and it should not be done absent the most exceptional circumstances,” wrote Justice Robert Armstrong in stating the court’s reasons in R. v. 1504413 Ontario Ltd., released April 8.

Armstrong, along with Justice Michael Moldaver and Justice Kathryn Feldman, found that Toronto lawyer Robert Jenkins should not have been ordered to take the stand against his client, 1504413 Ontario Ltd., in proceedings involving the building of a deck in the Municipality of Meaford, near Owen Sound.

Jenkins, who has practised law for 37 years in England, Australia, and Canada, says he was “astonished” to be asked to testify against a client.

“A lawyer who’s retained to investigate a complaint clearly is going to acquire some knowledge from the client, probably privileged,” says Jenkins. “You cannot investigate any criminal matter without asking certain questions of the client. You become privy to it - it’s inevitable.”
The appeal court dealt with the matter on Oct. 9, 2007.

In March 2006, Superior Court Justice John Sproat dismissed Jenkins’ motion to quash a summons to testify against his client.
The numbered company was charged under the Building Code Act for allegedly building a deck without a building permit, according to Armstrong. The company retained Jenkins to represent it, while the municipality retained Owen Sound lawyer John Middlebro’.

According to Armstrong: “Unfortunately, the two lawyers did not get along particularly well as revealed in some of the correspondence.”

Middlebro’ was displeased by some submissions Jenkins made to the court and asked for an apology in a letter that also suggested Jenkins was in a conflict of interest due to statements he made to municipal staff, wrote Armstrong. Jenkins didn’t follow a request by Middlebro’ to remove himself from the case.

Middlebro’ later sent a summons to Jenkins which included a note that stated, “I urge you to carefully [consider] your dual role as counsel and witness in th[is] provincial offence matter,” wrote Armstrong.

The motion judge considered two letters Jenkins wrote to the municipality’s chief building official and another letter written to the information and privacy commissioner, and ruled the material was “relevant and probative,” wrote Armstrong.

Noting there was more to consider than the relevance of evidence when considering the summons of counsel, the motion judge relied on R. v. Chenier and weighed the evidence to decide whether “it is necessary to elicit the evidence from counsel as opposed to some other person,” wrote Armstrong.

Although a pair of newspaper reporters could have been summonsed to confirm relevant comments made by the numbered company’s principal, the motion judge decided, “it would be unfair to the Crown to be blindsided at trial by unexpected evidence from the numbered company,” wrote Armstrong.

But Armstrong found that the motion judge’s concern regarding the Crown being “blindsided” at trial “is speculation and would not be sufficient to displace the heavy onus on the prosecution to demonstrate that it was necessary to call defence counsel . . . There are no extraordinary circumstances that dictate that counsel for the town had no alternative other than the unfortunate course he adopted.”

When those “exceptional circumstances” are met, a number of other considerations must be considered, wrote Armstrong. They include, “the importance of the issue for which the testimony is sought, the degree of controversy surrounding the issue, the availability of other witnesses to give the evidence or other means by which it may be accomplished . . . the potential disruption of the trial process, and the overall integrity of the administration of justice.”

Jenkins says the court upheld a “fundamental protection” for defence lawyers.
“Think about the long-term effects of it,” says Jenkins. “Any prosecutor who decided not to like the opposition could go and subpoena them, if they felt like it. That’s really what the Court of Appeal said you don’t do.”

Mara Greene, who represented the Municipality of Meaford at the Court of Appeal, says there’s a lack of case law on the issue of defence lawyers being subpoenaed, although several cases have dealt with the issue relating to Crowns.
She says this case “rearticulates the test of when counsel should be subpoenaed.”

“I think it is important that the court expressed the reality that we shouldn’t be subpoenaing counsel to court,” says Greene. “And that it’s important that, while counsel can be subpoenaed in certain circumstances, it should be a rare event. I don’t think that we should make a habit of subpoenaing lawyers.”

Jenkins says he was engaged in preliminary matters for the numbered company when he was summonsed and likely would have passed the case along to another lawyer anyhow. He continues to act as general counsel for both the numbered company and the family that owns it, but not on the case involving the Municipality of Meaford. That trial was ongoing at press time.

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