Her Majesty the Queen - v. -, 2021 SKPC 40

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 40 Date: August 25, 2021 Information: 991129231 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Kenneth John Brassington Appearing: V.L.A. Kindrachuk and T.A. Denluck For the Crown M.W. Owens For the Accused DECISION ON INTERIM APPLICATION Q.D. AGNEW , J [ 1 ] This decision involves the ability of Crown counsel to call as a witness a lawyer from their own office.

I held that they were not able to do so, and indicated that I would provide written reasons for my decision at a later date. These are those reasons. [ 2 ] On May 6, 2021 the accused appeared before me for trial on a charge of uttering threats, contrary to s. 264.1(1) of the Criminal Code . After calling its witnesses, the Crown indicated that it wished to conduct a voir dire on the voluntariness of a statement given by the accused. Mr. Brassington, through his counsel, indicated that voluntariness was not admitted. Crown counsel, Ms.

Kindrachuk, advised that one of her witnesses on the voir dire was going to be Mr. Paul Scott, a Crown prosecutor in the same office as Ms. Kindrachuk.

[3] I indicated concern about Mr. Scott testifying. It was clear from Ms. Kindrachuk’s comments that Mr. Scott was notexpected to be testifying about something merely of a formal or uncontroversial nature. I noted the potential issue of counsel and awitness being from the same organization. As by then we had expended the time set aside for the trial, the matter was adjourned toAugust 13, 2021. [4] On August 13, Ms. Denluck acted for the Crown. She was from the same office as Ms. Kindrachuk, and took the sameposition with respect to her ability to act while calling Mr. Scott as a witness.

At my suggestion the issue of a voluntariness voir dire wasdelayed until it was determined whether or not the accused was in fact going to testify as, if he did not do so, the issue would be moot. The Crown accordingly closed its case. Mr. Brassington then testified as the sole defence witness. At the end of the cross-examination,the Crown indicated that it wished to proceed with the voir dire, in order presumably to use Mr.

Brassington’s statement in cross-examination. [5] After argument by Crown and defence, I concluded that the Crown would not be permitted to call, as a substantive witness, alawyer from the same office. The Crown did not seek an adjournment to obtain outside counsel, or seek to call any other witnesses withrespect to the voir dire, but simply closed its cross-examination of Mr. Brassington. [6] The law in Saskatchewan is clear: counsel cannot appear in a matter in which a member of their firm has given evidence (seeBilson v University of Saskatchewan, (SK CA), [1984] 4 WWR 238 (Sask CA) [Bilson]).

I recognize that thesituation is otherwise in Ontario, where the line of authority proceeds from Essa (Township) v Guergis (1993), (ONSCDC), 15 OR (3d) 573 (Ont Ct J (Gen Div)) [Essa]. Essa distinguished Bilson based on certain differences in the Code of ProfessionalConduct governing members of the Law Society of Upper Canada at the time, as opposed to the Code governing members of the LawSociety of Saskatchewan at the time of Bilson.

Although the differences between the two provinces’ Codes have now disappeared, thetwo provinces continue to treat this issue differently: Wanner v Christie, 2016 SKQB 147 at paras 56 – 66 [Wanner]. [7] Bilson remains good law in Saskatchewan: Royal Bank v Gaudet, 2019 SKQB 87 at para 17 [Gaudet]. [8] The caselaw governing the situation in Saskatchewan can be summarized as follows: a. lawyers who act as counsel in a proceeding must not put their own credibility in issue by asserting as fact anything that isproperly subject to challenge.

This prohibition extends to testifying before a tribunal, giving evidence in the form of an affidavit, oreffectively becoming an unsworn witness by making submissions about factual matters that should properly be proven by evidence(Phillips Legal Professional Corp. v Vo, 2015 SKQB 248 at para 28, 473 Sask R 48, [Phillips]; Gaudet at para 18); b. a lawyer may not do indirectly what cannot be done directly by adducing controverted evidence from members of his own lawfirm (Phillips at para 28; Gaudet at para 18; Dustyhorn Estate v Stickney, 2004 SKQB 53 at para 4, 245 Sask R 132; Wanner, para 66); c. the Court is not bound by the Law Society’s rules of conduct (Wanner, para 65); d. however, the Court will take those rules into account (Gaudet, para 19); e. it is allowable for counsel to provide their own affidavit, or that of a member of their firm, when the matters sworn to are merelyformal or uncontroverted (Wanner, para 66; Gaudet, para 17) f. there may be unforeseen circumstances which arise during trial which require that trial counsel testify.

If so, however, absent“very special circumstances” they should then withdraw and not continue as trial counsel (Waschuk v Waschuk, (SKCA), [1955] 1 DLR 686 at para 30 (Sask CA). [9] It is clear that had defence counsel attempted to bring in substantive evidence from another member of his firm, or file hisown affidavit on controverted matters, he either would not have been able to do so or would have had to withdraw and have the accusedbe represented by counsel from a different law firm.

The question is whether or not the same applies to a Crown prosecutor. [10] Certainly some of the rules regarding disqualification of counsel apply to the Crown. In R v Le, 2001 ABQB 195, [2001] 7WWR 331 [Le], the Court considered a situation in which a support staff person transferred employment from a private law firm to theCrown. That firm was then representing Mr. Le. Before Mr. Le’s matters went to trial, the support person took a position with theCrown prosecutor’s office which was prosecuting Mr. Le. For some period of time, the support person was the only support personworking on Mr. Le’s file.

The Court concluded that severing from Mr. Le’s case both the support person and the lawyers for whom shehad worked was an appropriate outcome; significantly, it came to this conclusion without drawing any distinction between Crownprosecution offices and private bar law firms.

[11] There is of course an important difference between Le and the situation before me, namely that the Le matter involved apotential conflict of interest and a potential disclosure of confidential information. For the present purpose, however, what is importantabout Le is that the rules about potential disqualification of counsel were treated as being the same for both Crown and private barlawyers. [12] A more pertinent example, albeit much more dated, is quoted in Parry v Parry, (SK CA), [1926] 3 DLR 95at para 9 (Sask CA): In Dunn v.

Packwood (1847), 11 Jur. 242, Erie, J., said 'I think it a very objectionable proceeding on the part of an attorney to giveevidence when acting as advocate in the cause.' "In Stones v.

Byron (1846), 4 Dowl. & L. 393, 16 L.J.Q.B. 32, Patteson, J., said, at p. 395,--that he did not think the 'course ofproceeding,' adopted at the trial, 'is proper, or consistent with the due administration of justice.' In that case reference was made to aprecedent in the case of Sir Thomas More, where the then solicitor-general, who was conducting the prosecution left the bar and wasreceived as a witness for the Crown, which the counsel in Stones v.

Byron, quoting the language of Lord Campbell in his Lives of theChancellors, 1st series, 2nd London ed., vol. 1, p. 436, pronounced an 'eternal disgrace of the Court who permitted such an outrage ondecency.' See Best on Evidence, 12 ed., p. 174." [13] In Davis v Canada Farmers Mutual Insurance Co. (1876), 39 UCQB 452 (UC QB), [Davis] the Court noted some reasonswhy counsel should not testify (paras 79 and 80): 79 The administration of justice should not only be pure, but kept so pure as to be free from all suspicion of being tainted.

Counsel andwitnesses, as well as a Judge, are essential to its proper administration. The functions of each are so entirely distinct that they should bekept completely apart. 80 The Judge in this Province presides, and where there is a jury directs the jury as to the law; and where there is no jury, is himselfboth Judge and jury. Counsel before the Judge and jury zealously argue the side of their clients. But whether their clients shall succeed orfail ought to depend on the testimony of persons sworn impartially to tell the truth.

Counsel cannot be unbiassed [sic] witnesses, and ifpermitted without check to be witnesses there would be not only the revolting indecency of the proceeding, but the possible difficulty ofthe jury being unable to distinguish between what the counsel said as an advocate and what he said as a witness. [14] Robert Bell Engine and Threshing Co. v Gagne (1914), (SK CA), 7 WWR 62 (Sask SC en banc) [BellEngine], two objections were noted to counsel acting as witness (see para 2).

The first was the issue of public perception: the concernthat the public might be concerned that counsel would not provide accurate testimony in an attempt to help their client, although theCourt hastened to insist that the Court itself would have no such concern. This concern is related to that raised in Davis: Davis dealt withthe reality of counsel potentially not being an unbiased witness, while Bell Engine with the public’s perception of such bias, whether realor not.

The second objection raised in Bell Engine was that: It is not in the interests of the legal profession that counsel should be required to comment on the evidence given by brother counselengaged as such in the same action, and moreover, the Bench should not be called upon to discuss with counsel the weight to be attachedto evidence offered by the counsel himself. The giving of such evidence must have the effect of preventing a full and free discussion onthe part of both counsel and Bench, and to that extent, at least, serves to hamper the proper administration of justice.

This second concern was also voiced in Gajic v Canada, (FC), [1998] 3 CTC 235 (FC): . . . it is never in the interests of the legal profession to require counsel to comment upon evidence given by another counsel engaged assuch in the same action. That situation would lead to the Bench being called upon to discuss with counsel the weight to be attached tohis or her evidence, a complete impropriety . . . (para 25) [15] I would add a further concern.

The Canadian justice system operates on the basis that counsel will use all appropriate meansto put forward their case, subject of course to a Crown prosecutor’s other responsibilities as an agent of the Attorney General. Were Ms.Denluck to call Mr. Scott as a witness, there could arise situations in which uncomfortable choices might have to be made. In somecircumstances, a witness may prove forgetful, or their memory unreliable: Ms. Denluck might then have to argue about the reliability ofher colleague.

Sometimes a witness may, for a variety of reasons, say something which contradicts a prior statement made by them: were that to occur here, Ms. Denluck might end up having to cross-examine a member of her own office. On occasions, a witness provesto be adverse, again for various reasons: if that happened here, Ms. Denluck would be in the unhappy position of having to question theveracity of a lawyer with whom she presumably works in close contact.

Were any of those scenarios to occur, the public might well beconcerned as to whether or not the Crown’s case was being pursued as vigorously or in the same manner as it would be with anotherwitness.

[ 16 ] I wish to emphasize that, firstly, I have no reason to believe that any of these scenarios would apply to Mr. Scott and, secondly, I have no doubt but that, were any such unfortunate circumstances to arise, Ms. Denluck would act most appropriately, however personally distasteful she found it. The question is not the ethics of these particular counsel, or this particular circumstance, but rather whether there is a reason for a generally-applicable rule.

There are clearly issues of whether or not justice will be done, and of whether or not the public perceives that justice is being done. [ 17 ] I conclude that there are at least three reasons why a lawyer should not give evidence and act as counsel in the same matter, and why similarly lawyers from the same office cannot be counsel and give substantive evidence in the same proceeding: a. the public might believe, or suspect, that the witness would not give unbiased testimony.

Such a belief would be damaging not only to confidence in the outcome of the particular trial, but to the legal profession as a whole and ultimately the justice system itself; b. opposing counsel might be put in the position of having to cast aspersions on their fellow counsel, which flies in the face of the civility and collegiality expected of members of the Bar toward each other in a specific case.

While this concern is obviously greater with respect to evidence from counsel directly involved in the case, it is still a potential problem when there is a witness from counsel’s own firm, and may put opposing counsel in a difficult position, conceivably hampering their ability to put forward their case with utmost vigor.

A witness who happens to be a lawyer is of course not entitled to any greater deference from counsel than any other witness; this concern relates specifically to the conduct expected of counsel toward one another when acting as such; c. counsel calling a member of their own firm may have to treat such a witness as hostile, cross-examine them or take other steps which might be much more uncomfortable with a firm member than with an ordinary witness. There would be a concern as to whether counsel treated the witness in the same manner as they would an ordinary witness.

Were the witness to be someone with power over counsel’s career, for example, the issue is obvious. [ 18 ] The first reason, public perception, is concerned with public confidence in the justice system, and the administration of justice. The other two reasons are concerned with the truth-seeking function of the trial itself.

The second reason listed raises the issue of whether or not opposing counsel will be able to perform their function as well and fully as they would in the absence of this problem; the third, the same with respect to counsel calling the witness. [ 19 ] From these three reasons, it is clear that the rule must apply equally to the Crown as to the private bar. Each reason is fully applicable to the Crown, to exactly the same extent as to private counsel.

Public confidence and the ability of the particular counsel to do their respective tasks to the best of their abilities are potentially all affected if Crown counsel is allowed to call a witness from their own office to give substantive testimony. [ 20 ] In giving my decision during the trial, I indicated that I was not deciding whether or not such a rule would apply to lawyers from different offices - Crown prosecutors from different cities, for example. That was not the situation before me, and it was therefore not necessary that I decide it.

It may be that there is caselaw addressing the issue in the context of large, multi-city law firms, which might provide some guidance; as I was not addressing that issue, I did not seek out such caselaw and do not know if it exists. That issue must, therefore, be left for another day. ____________________________ Q.D. Agnew, J