Criminal Defense Incompetence Draws Sanction

The Ontario Law Society Tribunal Hearing Division ordered a three-month suspension for incompetence in a criminal matter and failure to act with courtesy and respect

In February 2020, Mr. Corcoran acted as defence counsel in a sexual assault jury trial. Eight days into the trial, the Crown Counsel brought an application for a mistrial on the basis that Mr. Corcoran had rendered ineffective counsel to the accused. The trial judge granted the application and declared a mistrial. Several months later, the accused had not retained new counsel and planned to proceed with Mr. Corcoran as his lawyer at the new trial. The Crown brought an application to the trial judge to remove Mr. Corcoran as counsel for the accused on the basis that he was incompetent, which was granted despite the accused’s counter-application that he had a constitutional right to choose his own lawyer, and he wanted Mr. Corcoran to represent him.

Specifics

a.   a lack of understating of criminal trial procedure;

b.   a lack of understanding of the rules of evidence;

c.   a lack of knowledge or an unwillingness to follow substantive law and procedure relating to sexual assault trials;

d.   a lack of knowledge or an unwillingness to follow substantive law and procedure relating to sexual assault trials;

e.   a lack of knowledge or willingness to follow proper jury trial procedure, especially with respect to his opening address to the jury; and

f.   a lack of common sense by failing to advise the court when he was unable to hear the evidence because of a malfunction in his hearing equipment.

Conduct at the hearing

Over the course of the conduct hearing, Mr. Corcoran was repeatedly disruptive, and challenged and failed to abide by directions from the panel chair about properly conducting himself during the hearing. At one point, he intentionally logged off from the video proceeding because he was unhappy with the directions from the chair, and Tribunal staff had to reach out to him to get him to rejoin the hearing. This was the electronic equivalent of walking out of an in-person hearing without leave from the chair. Mr. Corcoran made repeated, unwarranted objections during Mr. Neuberger’s testimony and during the opening and closing submissions of the Law Society. He made speeches and arguments while providing his evidence, even after being reminded that the evidence phase of the hearing was not the time for argument.

Mitigation

Mr. Corcoran has practised for a long time (32 years) and has had only one minor discipline finding made against him that resulted in a reprimand. We consider this to be a neutral factor; however, we note that Mr. Corcoran’s behaviour before us suggests that he has not truly learned from that experience, as he continually to fail to treat the adjudicative body with the respect it deserves.

Aggravation

Mr. Corcoran has not expressed any remorse for his conduct, nor has he accepted responsibility for the declaration of a mistrial based on his incompetence and incivility. To the contrary, during his submissions, Mr. Corcoran continued to praise his defence of the accused in respect of matters that were not the subject of the discipline proceeding. He submitted large amounts of material relating to an appeal in another sexual assault trial, as well as the decision in the retrial to support his argument that he had done a good job for the client. Mr. Corcoran appeared to have little concern for the adverse consequences that his misconduct had on the administration of justice, the complainants, and even on his own client, who were all subjected to a second, unnecessary trial, after eight hearing days had already been completed. He showed no awareness for the adverse effect of his conduct on the integrity of the profession. We consider this a factor relevant to the issues of rehabilitation and specific deterrence.

Penalty

We also conclude that a three-month suspension is appropriate here. It recognizes the seriousness of Mr. Corcoran’s misconduct that caused a mistrial to be declared. It will meet the penalty goals of specific and general deterrence, rehabilitation, and maintaining the public’s confidence in the legal profession. We do not consider that anything less than a three-month suspension will bring home to Mr. Corcoran that his misconduct was serious and must not be repeated.

(Mike Frisch)