|Daniel Lerner says it will not be enough for Crown’s offices to assume staff will not discuss cases with a new hire and then submit affidavits after the fact.|
Shaw found that it was likely Crowns in such a small office would talk about their cases together, and without the necessary safeguards in place, a “reasonably informed member of the public” would not have confidence that confidential information would not be inadvertently disclosed.
“In the instant case, choice of counsel is not a consideration. The balancing of the integrity of the justice system and the mobility of lawyers is done in a context where the liberty of the accused is at stake,” said Shaw, in his decision barring the Kenora Crowns from prosecuting R. v. Mandamin.
“The preservation of the integrity of our system of justice must be the prevailing value. Justice must not only be done, but it must be seen to be done.”
Lawyers say the decision sets out what local Crown offices need to do when the Crown employs a defence lawyer.
Daniel Lerner, a former Crown who is now a criminal defence lawyer, says it will not be enough for Crown offices to simply assume staff will not discuss cases with a new hire and then submit affidavits after the fact. They will now need to put safeguards in place and document the steps taken, he says.
“You need to actually make a list of the cases you have potential conflicts with and then let the office staff know . . . that you cannot discuss these cases with the new hire,” says Lerner, who still does some per diem work for the Crown but was not involved in this case.
“And they need to make sure it’s all properly documented and that it’s all very clear,” he adds.
Lerner, who has moved back and forth from Crown work to defence a number of times, says there was no policy to put safeguards in place when the Crown last employed him in 2013.
The Ministry of the Attorney General did not respond to questions about whether the ministry plans to put such a policy or procedures in place after the decision.
In the Mandamin case, Joubert represented the accused from when he was charged up through the preliminary inquiry. Mandamin was facing 10 counts in his indictment, including assault with a weapon, aggravated assault and sexual assault.
His trial was scheduled to begin July 11, 2016, but Joubert accepted a job with the Kenora Crown attorney’s office on July 6.
Joubert was then removed from being defence counsel to Mandamin on the first day of the trial. But there were no instructions given to other assistant Crown attorneys not to communicate with Joubert about the case when he joined, the decision said.
When Mandamin’s new counsel, Robert Sinding, moved to have the Kenora Crown attorney’s office barred from prosecuting the case, the Crown submitted an affidavit from Joubert, saying he had no involvement in the prosecution of the case and had not discussed it with the assistant Crown on the file. The affidavit also said that Joubert had not shared any confidential information about his former client and did not have access to the prosecution file.
Shaw found this was not enough.
The judge used a test developed by the Supreme Court of Canada in MacDonald Estate v. Martin that asked whether the lawyer received confidential information attributable to a solicitor-client relationship and whether there was a risk that it would be used to prejudice the client.
Shaw found that not enough had been done by the Crown’s office to rebut the possibility that confidential information could be disclosed.
The Crown also argued that different standards should be applied to the office of the Crown Attorney than to a private law firm, saying the Crown does not prosecute on behalf of a particular client or party and does not win or lose.
Malcolm Mercer, a bencher with the Law Society of Upper Canada, says it should not make a difference whether a lawyer is working for the government or working for a private firm.
“I don’t really understand the reasoning of the Crown’s position. It seems to be that we should trust lawyers in public service more than we should trust lawyers in private practice and I’m not sure what the logic of that is. It doesn’t seem right to me,” says Mercer, who was not involved in the case.
Mercer noted that a recent decision at the Ontario Court of Appeal, Ontario v. Chartis Insurance Company of Canada, showed that even when all ethical guidelines are followed, law firms can still be disqualified in some circumstances.
In that case, a law firm was disqualified from acting for an insurance company in a dispute, as one of its lawyers had previously worked for another firm on the other side of the dispute.
While the firm had put up an ethical screen, the court determined that it was not enough to rebut the presumption that confidential information could be disclosed, as the lawyer worked so closely with counsel on the file.
It is unclear whether MAG intends to appeal the decision in Madamin, as the ministry did not provide comment before deadline.