Law Times

LAW TIMES / APRIL 21, 2008 NEWS PAGE 3 circumstances" should defence lawyers be compelled to testify against their clients. "Whether as a matter of cus- tom or policy, issuing a sum- mons to counsel for the oppo- site 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 Jus- he Ontario Court of Appeal has reiterated that only in "exceptional tice Michael Moldaver and Jus- tice Kathryn Feldman, found that Toronto lawyer Robert Jen- kins should not have been or- dered 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 clear- ly is going to acquire some knowledge from the client, probably privileged," says Jen- kins. "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 per- mit, according to Armstrong. The company retained Jenkins to represent it, while the mu- nicipality retained Owen Sound lawyer John Middlebro'. According to Armstrong: "Unfortunately, the two lawyers Counsel should rarely be subpoenaed to testify T BY ROBERT TODD Law Times 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 sug- gested Jenkins was in a conflict of interest due to statements he made to municipal staff, wrote Armstrong. Jenkins didn't fol- low a request by Middlebro' to remove himself from the case. Middlebro' later sent a sum- mons to Jenkins which includ- ed a note that stated, "I urge you to carefully [consider] your dual role as counsel and witness in th[is] provincial offence mat- ter," wrote Armstrong. The motion judge considered two letters Jenkins wrote to the municipality's chief building of- ficial and another letter written to the information and privacy commissioner, and ruled the material was "relevant and pro- bative," 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 evi- dence 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 con- firm 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 specu- lation and would not be suf- ficient to displace the heavy onus on the prosecution to demonstrate that it was nec- essary to call defence counsel . . . There are no extraordinary circumstances that dictate that counsel for the town had no alternative other than the un- fortunate course he adopted." When those "exceptional cir- cumstances" are met, a number of other considerations must be considered, wrote Armstrong. They include, "the impor- tance of the issue for which the testimony is sought, the degree of controversy sur- rounding 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 Mara Greene effects of it," says Jen- kins. "Any prosecutor who decided not to like the opposition could go and sub- poena them, if they felt like it. That's re- ally what the Court of Appeal said you don't do." Mara Greene, who 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 "rearticu- lates the test of when counsel should be subpoenaed." "I think it is important that represented the Mu- nicipality of Meaford 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 ongo- ing at press time. LT the court expressed the reality that we shouldn't be subpoe- naing counsel to court," says Greene. "And that it's impor- tant that, while counsel can be subpoenaed in certain cir- cumstances, it should be a rare event. I don't think that we should make a habit of sub- poenaing lawyers." Jenkins says he was engaged VISIT OUR REDESIGNED WEBSITE WWW.LAWFOUNDATION.ON.CA See our Grants Program section to view new information on granting application processes The Law Foundation of Ontario is committed to the advancement of legal knowledge, excellence within the legal profession and community participation in the legal system. The LFO funds programs and initiatives that promote and enhance access to justice for all Ontarians. CANADIAN LEGAL NEWSWIRE it's weekly e-news! it's fresh. it's free. Sign up today at www.canadianlawyermag.com FROM THE EDITORS OF CANADIAN LAWYER AND LAW TIMES www.lawtimesnews.com

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