Saturday, August 31, 2019

Why isn't it "Professional Misconduct" when Crown Counsel Disobeys a Judge's Order ?


Background:

   After repeated requests to the trial judge to restrain Crown Counsel's aggressive and abusive cross-examination of an African-Canadian female complainant on a domestic violence trial in which Crown Counsel elected not to call the alleged victim as his witness to prove an alleged assault on her, I made the following off-the-cuff and passionate request to the trial judge:

The Plea:

   "Your Honour, my friend's being very disrespectful to this witness, and I don't know if it's on account of her race, or what it is, but can you please caution him to (sic) finish her narrative ?  He keeps interrupting, and bellowing like he's some big, bad-ass dog or something."

Immediate Apology on 
the Record:

   Within less than a minute of those words being uttered a frank and fulsome apology
was communicated to Crown Counsel in order to preserve the integrity of the record
and proceedings.  Crown Counsel rejected the apology and asked the trial judge for an
adjournment in order for him to bring a complaint before the Law Society of Upper Canada.

Trial Judge Denied
Crown Request:

   The trial judge denied the Crown's request.  She stated:

THE COURT:  I think that I would like for us to take a 15 minute break, and then for us to return and continue the trial.

MR. RINALDI:  I can tell Your Honour I'm not in a position to do that.  I - I - I - sic and to make some inquiries, and I've had enough of this.  He called me names on the record and if...

MR. RINALDI: ...Your Honour wants to put up with that, that's your perogative.  I'll come back to set a new date, but I intend on speaking to the Law Society about the comments that have been put on the record about me. They were completely slanderous and inappropriate.

   Crown Counsel walked out on the trial judge.

Complaint to LSUC 
by Witness in Court:

   A member of the public who was in the courtroom and observed Crown Counsel's conduct made a formal written complaint to the Law Society of Upper Canada.  Her complaint raised the following regulatory issues:

1.  Crown Counsel was disrespectful to the trial judge by refusing to comply with her order;

2.  Crown Counsel was disrespectful to the witness - badgering her and raising his voice at her; and

3.  The witness, a member of the public, stated, "I sat in stunned disbelief at the disrespect that the Crown showed to Justice Brewer by going against her order to take 15 minutes break."

Law Society of 
Upper Canada Response
to complaint:

    "After reviewing the information your provided, we have found that the concerns you raise are not something that the Law Society can deal with.  We can only act on complaints that provide information suggesting a lawyer had done something contrary to our Rules of Professional Conduct. As you aware, Mr. Rinaldi is a Crown Attorney.  As it appears your concerns about him relate to the exercise of his discretion within the context of his position as a representative of the Crown, you may address your concerns to:  The Ministry of the Attorney General, 720 Bay Street, Toronto, Ontario, M5G 2K1."

   On the other hand, the Law Society of Upper Canada has sent Crown Counsel's complaint against defence counsel, E.J. Guiste, to a formal hearing some six years after the fact and counting.  The Law Society of Upper Canada Notice of Hearing asserts that defence counsel was disrespectful to the trial judge and Crown Counsel - even though the trial judge never made any such complaint and went on to acquit defence counsel's client.

Is the late Eddie Greenspan Right ?

   One of Canada's best criminal lawyers had the following to say about the regulators tendency to prosecute defence lawyers but not prosecutors:  "The Law Society does not enhance its reputation by selectively prosecuting defence counsel for alleged misconduct in the face of the court, but not prosecutors. And such prosecutions will have a chilling effect on advocates." (Edward Greenspan
and L. David Roebuck, "The Horrible Crime of Incivility - Globe and Mail - August 2, 2012) 




 

 
   

Wednesday, August 14, 2019

Is it "Professional Misconduct" for a Lawyer to Comment on a Judge's Unfairness ?


In Dore  v.  Barreau du Quebec [2012] 1 S. C.R. 395 the Supreme Court of Canada pronounced that:

"In dealing with the appropriate boundaries of civility for a lawyer, the severity of the conduct must be interpreted in light of the expressive rights guaranteed by the Charter, and, in particular, the public benefit in ensuring the right of lawyers to express themselves about the justice system in general and judges in particular.  We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer's right to expression and the public's interest in open discussion."

The Supreme Court of Canada stated:  "Proper respect for these expressive rights may involve bodies tolerating a degree of discordant criticism.  The fact that a lawyer is criticizing a judge, a tenured and independent participant in the justice system, may raise, not lower, the threshold for limiting a lawyer's expressive rights under the Charter."


The Ontario Court of Appeal had the following to say in Amato  v.  Peske 2010 ONCA 708:

"There are times when trial counsel can be expected to raise objections, especially when they feel that a trial judge is exceeding the bounds of judicial propriety and taking up the cause of one of the parties.  Polite but firm objections, in these circumstances, are entirely appropriate.  Counsel should not feel constrained for fear of judicial censure. 

Prohibited Conduct

A licensee shall not engage in professional misconduct or conduct unbecoming a lawyer.

s.33  The Law Society Act

With the authorization of the Proceedings Authorization Committee, the Society may apply to the Tribunal for a determination by the Hearing Division of whether a licensee has contravened section 33.

s.34 The Law Society Act


The Conduct:

1.  "Well, your Honour, I think you should give some thought to what you are doing, because you're trying to derail me".

2.  "Your Honour, you've got to - you've go to do you job now.  She - he asked that, and she said, five times. I mean come on."

3.  "Your Honour, I would have thought that you would've intervened, as the trial judge, but what's the purpose of this ?

4.  "I don't think you're listening to me very carefully, so I'm going to be very precise."


The learned trial judge made no complaint in court.  The learned judge made no complaint to the regulator. The learned trial judge went on to fully exonerate my client.


Guarantees for the functioning of lawyers

Governments shall ensure that lawyers(a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

Basic Principles on the Role of Lawyers - United Nations