Attorney Cannot Relitigate Findings
An attorney may not relitigate findings that led to a mistrial and his removal as counsel in a criminal case, according to a ruling by the Ontario Law Society Tribunal Hearing Division.
The Lawyer is 79 years old and was called to the bar of Ontario as a mature student in 1992. He has been in private practice in the Hamilton‑Wentworth area continuously over the last 31 years. The Lawyer’s law practice has largely, but not exclusively, consisted of representing low‑income individuals charged with criminal offences.
In granting the Crown’s application for a mistrial, Justice Braid outlined 23 areas of concern regarding the various events that occurred over the course of the trial. Justice Braid’s concerns can be summarized as follows:
• The Lawyer had initially failed to have his client present for pre‑trial motions as required by s. 650 of the Criminal Code.
• The Lawyer had failed to make himself aware of a recent peremptory challenge decision and directive by the Chief Justice on the issue.
• The Lawyer, as an officer of the court, had to be directed to make representations on behalf of his client to a similar fact application advanced by the Crown.
• The Lawyer asking that the officers’ notes be made an exhibit was improper.
• The Lawyer was often careless in the asking of the questions and inattentive to the answer given. This led to the portions of transcripts put to witnesses that were misread. In fact, the Lawyer himself admitted he didn’t even know what he was asking.
• The Lawyer posed a hypothetical question to a witness for which there was no basis. He discussed the witness’s knowledge of narcotics and prescription medication, which had no bearing on the case.
• The Lawyer raised his voice during the cross‑examination of a young complainant and even began yelling at her. He stated he could not help himself when he gets excited, and the Court stated his emotions should be controlled.
• The Lawyer made inappropriate speeches and offered opinions during the cross‑examination of the officer in charge.
• The Lawyer expressed personal opinions during the cross‑examination of witness when he did not like the answer he was given.
• The Lawyer led his own witness in controversial areas and called hearsay evidence.
• The Lawyer asked the Court for advice on how to enter photos as exhibits showing a lack of knowledge on basic trial procedure.
• The Lawyer engaged in a line of question about the complainant’s prior sexual conduct that would require the Lawyer to file a s. 276 (Criminal Code) application before the court for the court to determine if the line of question was admissible. The Lawyer stated he was unaware of this section. The Crown pointed out that correcting instructions to the jury on the issue could remedy the fact that the question was asked.
• The Lawyer while cross‑examining one of the complainants, asked about her lack of avoidant behavior towards the client following the alleged incident. The Court had to remind the Lawyer that lack of avoidance is an inappropriate line of questions and the law states that the lack of avoidant behavior is not relevant to the credibility of the witness.
• The Lawyer, while questioning his client, was stopped by the Court for again improper questioning on the avoidant behaviour. The Lawyer gave evidence from the podium about his client’s relationship with his daughter. When the Court reminded him that according to the law of sexual assault cases this is not admissible, the Lawyer stated that in affairs of human beings it was.
• The Lawyer agreed that he breached the rules of evidence with regards to sexual assault cases, but nonetheless insisted that he should be allowed to question on these issues.
• The Lawyer and the Crown were provided a draft copy of the jury instructions by the Court to ensure their questions were aligned with the instructions. The Lawyer did not follow these rules when they were not of benefit to his client even if it made the evidence inadmissible.
• The Lawyer chose to do an opening to the jury without any notes and this led to improper and inaccurate statements of law such that the Lawyer stated there was no corroborating evidence that the sexual assaults happened when s. 274 of the Criminal Code states that no corroboration is required in a sexual assault case.
• The Lawyer made a derogatory personal statement about one of the complainants, addressing her as the “wart” of the case, which had no place in an address to the jury.
• The Lawyer made an improper, inflammatory statement in the conclusion of the opening statement to the jury by saying that an allegation of sexual assault could be brought against any of us and that it would be hard to defend.
• The Lawyer has a hearing impairment. The technology he was using malfunctioned during the hearing, and he failed to notify the Court of the failure, which led to disjointed and unrelated questions and answers. The Lawyer kept interrupting a witness and when the Court intervened, he stated that he thought the witness was lying, but the Court had stopped him from conducting the cross‑examination to prove it, and that he did not need to hear the answers of the witness in any event.
• The Lawyer stated that his client had no defence to the charges after his client had started testifying in chief and had denied the allegations.
• The Lawyer stated on numerous occasions that his job was to make his client look good. He disagreed that he must represent his client in a manner that is respectful to the rules of evidence and the Criminal Code and as an officer of the court.
• Despite being advised that he was required to bring a s. 276 application before the court if he wished to cross‑examine the complaint on prior sexual history, the Lawyer failed to educate himself on the issues.
The judge ordered his removal as counsel due to competence concerns. The removal was not appealed.
Here, the tribunal concludes that the order is admissible and that the attorney is precluded from relitigating the facts. (Mike Frisch)