Whatmore Can I Say?
A now-retired attorney who failed to disclose adverse authority in a “driving while disqualified” case was reprimanded by the Law Society of Saskatchewan.
The evidence tendered on behalf of the Investigation Committee was largely comprised of the transcript of a trial in the Provincial Court of Saskatchewan at Kindersley on March 18, 2014, on a charge of driving while disqualified. The Member represented the accused at the trial. At the close of the Crown’s case the member made what turned out to be an unsuccessful application for non-suit. One of the arguments he advanced in support of his application was that the Crown had failed to satisfy an onus to prove that, at the time of the alleged offence, the accused was not registered in Saskatchewan’s alcohol ignition interlock device program. The court ultimately held that the Crown bore no such onus and dismissed the non-suit application.
In support of this argument, the Member referred the court to an annotation to the offence section in Alan D. Gold, The Practitioner’s Criminal Code(LexisNexis, 2013 Edition). The annotation reads in part:
On a charge of operating a motor vehicle in Canada while disqualified from so doing, contrary to s. 259(4) of the Criminal Code, the Crown was required by the terms of s. 259(4) to prove, as elements of the offence, that the accused was not “registered in an alcohol ignition interlock device program established under the law of the province in which the [accused] resides” and, if the accused was so registered, that the accused was not in compliance with the conditions of that program.
This excerpt was linked to a footnote containing the following list of cases and further commentary:
- R. v. Lariviere (2000), 2000 CanLII 8295 (QC CA), 38 C.R. (5th) 130, [2000] Q.J. No. 3086 (Que. C.A.); R. v. Liptak, [2009] A.J. No. 1271 (Alta. Prov. Ct.)2011 ABPC 320 (CanLII), [2011] A.J. No. 1147 (Alta. Prov. Ct.) (onus on accused to prove registration and compliance with interlock program).
Neither the trial judge nor the prosecutor had a copy of this same annotated Criminal Code and the Member did not have copies of the relevant pages to provide to them. Consequently, they were not able to follow along as the Member made his submissions in relation to the annotation.
The Formal Complaint rests on the manner in which the Member advanced the principle contained in the above-referenced annotation and his reference to the Lariviere and Liptak decisions in support of the principle, while failing to mention the more recent decision in Whatmore rejecting the principle.
As the Member began advancing the principle and referring to Lariviere, it was clear the trial judge was struggling, both to be sure he understood the argument and then to accept it. He indicated to the Member that he was unaware of the case and was surprised by the principle for which it was being cited. He indicated he would have to read the case. However, the Member did not have a copy of either this case or the Liptak
The Member went on to cite Liptak as further authority for the same principle. However, he made no mention of the Whatmore decision.
The non-disclosure came to light when the trial judge took a recess and asked to see the member’s annotated copy of the code provision.
The reasoning
The facts central to the determination of the complaint are not in issue. The Member acknowledged he was aware of the Whatmore decision, which was adverse to the position and the case authority he was citing. While he may have suggested to the trial judge that his failure to mention Whatmore was innocent, this position is not tenable when considering the whole of the discussion recorded in the transcript, and counsel for the Member did not advance this in the Hearing…
To act “fearlessly” on behalf of a client charged with a criminal offence is a useful and powerful characterization of the lawyer’s obligation to his or her client. However, it must be tempered by the lawyer’s other potentially competing obligations.
Counsel for the Member expressed concern that a finding of conduct unbecoming here would cast too wide a net and necessitate discipline proceedings in multiple cases in the future. We acknowledge the validity of a cautionary note and the importance of striking an appropriate balance. That balance must be found by criminal defence counsel, by judges hearing criminal cases and by the Law Society when it considers a complaint, including in the initial stages of a complaint. The balance may be difficult to find at times. However, we do not see this is as one of those times. There are two factors present here that will separate this case from many others.
First, the authorities, for and against, were relevant to an issue the Member placed before the court. Neither the trial judge nor opposing counsel would reasonably have anticipated a need to address the issue and prepare accordingly.
Secondly, the trial judge clearly demonstrated to the Member that he wanted more input in relation to the position the Member was advancing and the two cases supporting it. It is difficult to understand how the Member could not conclude the court would be keenly interested in knowing of the contrary authority of which the Member was clearly aware.
Sanction
Having considered the circumstances of this case within the context of those cases, we find that the recommended penalty of a reprimand falls within an appropriate range. We find as well that the recommended penalty is neither unfit nor unreasonable nor contrary to the public interest. Our conclusion in this respect is based in part on the fact the Member is retired. Consequently, we accept the recommendation.
(Mike Frisch)