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The Ethical Parameters of Pretrial Conferences

  • October 2, 2015
  • Clayton Rice, Q.C.

The conduct of pretrial conferences in criminal cases continues to generate concerns among defence lawyers in Alberta. I will join the discussion. In this post I will consider the legal regime governing pretrial conferences and the ethical considerations that bear upon the conduct of criminal defence lawyers in these judicial proceedings.

The Criminal Code provides in s. 625.1(1) that a “conference” may be conducted in any case on application by the prosecutor, the defendant or a judge of the court before whom “any proceedings” are to be held. The section is permissive except in the case of jury trials where conferences are mandated by s. 625.1(2). In Alberta, the rubric “pretrial conference” is the common term used to describe these “proceedings” irrespective of their nature. The purpose of a pretrial conference is to “consider the matters that, to promote a fair and expeditious hearing, would be better decided before the start of the proceedings”. It is important to point out that the words “matters better decided” used in the sub-section have not been interpreted to mean decisions that are final. Rather, the positions taken by the prosecution or the defence at a pretrial conference are not binding. (See: R v Derksen (1999), 140 CCC (3d) 184 (Sask CA) at para. 10; and, Gold. The Practitioner’s Criminal Code 2016, at p. 952)

Rules 28-30 of the Alberta Rules of Court (Vol 2) also apply. Specifically, Rule 29(3) contains a list of 15 subjects that a pretrial conference judge may “inquire about, discuss and make recommendations on”. The list includes uncontroversial things like the scheduling of pretrial applications, interpreters and arrangements for technological equipment. However, Rule 29(3) also includes sensitive subjects such as the issues in dispute and admissions of fact that also arise in the court form that defence lawyers must file, prior to the conduct of all pretrial conferences, under Rule 26(1). In the Court of Queen’s Bench of Alberta, this contentious document is Form CC7.

What, then, is the position of the defendant in these proceedings that are most often conducted in private chambers under Rule 23(2) and not in open court on the public record? The position of the defendant is the same as it is at any stage of a criminal proceeding and was suscintly described in R v Heidecker, [1992] AJ No 91 (Alta Prov Ct) where Judge Allan A. Fradsham put it this way, at pp. 6-7:

“Generally speaking, I agree that the accused does not have a positive duty to bring before the Court the charge laid against him or her. Certainly, the accused must not do things that thwart the process but he or she has no duty to actively assist in the matter…The accused must discharge his duties as imposed by the criminal law but the accused need do no more – no matter how easy further acts might be for him or her and no matter how beneficial acts would be for the general justice administration system.”

In R v Morin, [1992] 1 SCR 771 Justice John Sopinka, in the context of Charter s. 11(b) jurisprudence, reaffirmed the fundamental principle governing the relationship between the defendant and the state, at para. 62: “This Court has made clear in previous decisions that it is the duty of the Crown to bring the accused to trial (see Askov, supra, at pp. 1225, 1227, 1229).” In R. v. Panousis (2002), 324 AR 165 (Alta QB) Justice Donald Lee described it, at para. 31, as “the duty of the Crown to move the prosecution along”.

It is well settled, then, that a defendant may take an entirely laissez faire position in the prosecution. A defendant may not, of course, do anything to obstruct the process. But a defendant is not required to assist the state. The rationale for this overarching principle is rooted in the presumption of innocence, the right to silence and the right against self-incrimination. In R v MBP, [1994] 1 SCR 555 Chief Justice Antonio Lamer elaborated on the foundation principles governing the pretrial stage as follows, at paras. 36-38:

“Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution: M. Hor, ‘The Privilege Against Self-Incrimination and Fairness to the Accused’, [1993] Singapore J. Legal Stud. 35, at p. 35; P. McWilliams, Canadian Criminal Evidence (3rd ed. 1988), at para. 1:10100. This means, in effect, that an accused is under no obligation to respond until the state has succeeded in making out a prima facie case against him or her. In other words, until the Crown establishes that there is a ‘case to meet’, an accused is not compellable in a general sense (as opposed to the narrow, testimonial sense) and need not answer the allegations against him or her.

The broad protection afforded to accused persons is perhaps best described in terms of the overarching principle against self-incrimination, which is firmly rooted in the common law and is a fundamental principle of justice under s. 7 of the Canadian Charter of Rights and Freedoms. As a majority of this Court suggested in Dubois v. The Queen, [1985] 2 S.C.R. 350, the presumption of innocence and the power imbalance between the state and the individual are at the root of this principle and the procedural and evidentiary protections to which it gives rise.

Before trial, the criminal law seeks to protect an accused from being conscripted against him- or herself by the confession rule, the right to remain silent in the face of state interrogation into suspected criminal conduct, and the absence of a duty of disclosure on the defence: R. v. Hebert, [1990] 2 S.C.R. 151. With respect to disclosure, the defence in Canada is under no legal obligation to cooperate with or assist the Crown by announcing any special defence, such as an alibi, or by producing documentary or physical evidence.”

In the context of the relationship between the defendant and the state in a criminal prosecution, it is also critical to examine the ethical position of the criminal defence lawyer. In Alberta, the position of the advocate is described in clear and unequivocal language in Rule 4.01(1) of The Law Society of Alberta Code of Conduct which states, at p. 79: “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy and respect.” The commentary following the Rule is even more explicit and leaves no wiggle room: “The lawyer’s function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (except as required by law or under these rules and subject to the duties of a prosecutor set out below) to assist an adversary or advance matters harmful to the client’s case.”

There are very few exceptions to the general rule that the defence is not required to cooperate in the prosecution. Some examples are: (1) the requirement for filing a Charter Notice in pretrial applications (Dwernychuk notice); (2) notice of a constitutional question under s. 24(1) of the Judicature Act; (3) notice of an expert witness under s. 657.3(b) of the Code; and, (4) notice of challenges for cause in jury selection.

That, then, leads to the question that nags at many criminal defence lawyers in Alberta in the context of the demands imposed by Form CC7 which must be filed prior to any pretrial conference in the Court of Queen’s Bench. There is no similar form used by the Provincial Court of Alberta although the conduct of a pretrial conference in that court is analogous. I have concluded that the position of the defendant, and the legal and ethical position of defence counsel, are less difficult to maintain than many lawyers think. Let’s begin by briefly summarizing the guiding principles. They are: (1) the duty to advance the state’s case rests upon the Crown; (2) the defendant is not required by law to assist in the prosecution; and, (3) the role of the advocate is openly partisan and ethically prohibits the criminal defence lawyer from assisting the state.

Turning to Form CC7, there are many questions asked in the form that are not controversial. I will not list them. But certainly questions pertaining to the date of trial, election of mode of trial, the language of trial, the need for technical equipment and scheduling of pretrial applications are not problematic. Such administrative and logistical matters fall within Code s. 625.1 as they bear upon the court’s interest in allocating resources. Beyond such administrative issues, Form CC7 ventures into discovery of the defence case by posing questions about the conduct of the defence, the position of the defence on specific issues, admissions and anticipated defences. These are the contentious areas.

It may well be in a given case that the defendant does not care about disclosing such information or making admissions that facilitate the prosecution, even admitting the whole of the Crown’s case, for a variety of reasons. The practice of defence lawyers will vary from lawyer to lawyer, from case to case and from issue to issue. There is certainly a wide ambit for flexibility. With that in mind, I will discuss my approach to three things that create tension between silence and disclosure in Form CC7 and the general conduct of pretrial conferences.

First, with respect to disclosure of anticipated defences, and any questions in Form CC7 that bear upon the general conduct of the defence, I invoke the client’s right to remain silent. I state that on the form.

Second, with respect to disclosure of the defence position on triable issues, my general practice is to again invoke the right to silence. The disclosure of what may be anticipated as a triable issue alerts the Crown to problems in its case and therefore assists the prosecution. There have been times when I answered these questions if I concluded that, in the context of the specific case, answering the question did not disclose or tend to disclose the defence position. The overriding question I used to ask was: By answering this question, is my client assisting the prosecution or providing a basis on which the Crown may draw an inference that tends to provide disclosure of the defence case? In any case where I answered an intrusive question, I would seek explicit instructions from my client before filing the form. I stopped that practice because it engages a cat-and-mouse analysis that challenges the ethical boundaries, exposes the potential for error and thus becomes unnecessarily time consuming. The pretrial stage of criminal proceedings can be almost as fluid and nuanced as the trial itself. What is a “No” today may become a “Yes” tomorrow – particularly when new disclosure emerges after a pretrial conference that has a bearing on a triable issue discussed during the pretrial conference. I have simply stopped giving the Crown access to my play book.

Third, what is the best practice regarding admissions? I know some defence counsel who have a streamlined approach. “I don’t make admissions,” they say. It is a valid position. But I tend to be more flexible. There is no doubt that admissions assist the prosecution. They reduce the requirements of proof, the number of Crown witnesses and the length of many, but not all, trials. On the other hand, some admissions may benefit the defence case. The variables are probably as numerous as there are prosecutions and each case brings its own considerations to bear on whether particular admissions are desirable from a defence perspective. I generally advise the pretrial conference judge that I will consider admissions but only if the prosecutor provides me with a draft Statement of Agreed Facts under s. 655 of the Code, by a specified date prior to trial, that I can then review with my client. I never make admissions during the conduct of a pretrial conference. And I do not make admissions that are not in writing and signed by my client. Admissions in writing avoid misunderstandings and conflicting interpretations at trial. And the client’s involvement is critically important. They are, after all, the client’s admissions of fact. Not mine.

The last issue I will discuss arises in Rule 30 of the Alberta Rules of Court. This Rule requires a pretrial conference judge to explore the prospects of a plea deal. The Rule is mandatory. It provides that the pretrial conference judge shall discuss the Crown and defence positions on sentence before and after trial. It permits the judge to express an opinion about any proposed sentencing based on the circumstances disclosed at the pretrial conference. It is a strange Rule because it proceeds on the basis of a presumption of guilt. I handle it this way.

I do not engage in plea negotiations at pretrial conferences. If a prosecutor wants to put the state’s position on the table, I will listen. But that is all. And if the prosecutor wants to formalize a plea proposal, send a letter. Don’t send an email. The reason I take this position is simple. Plea negotiations are settlement negotiations. They are privileged and not open to discussion in judicial proceedings absent an explicit waiver by the client. In Sable Offshore Energy Inc v Ameron International Corp, [2013] 2 SCR 623 Justice Rosalie Abella, writing for a unanimous court, emphasized at para. 12 that settlement negotiations are a class privilege. The privilege is not limited to civil cases and extends to criminal and regulatory prosecutions. Waiver of settlement privilege is not something I recommend to clients. It is a serious undertaking that requires clear written instructions and, in some circumstances, may require independent legal advice. Waiver, if it is considered at all, should be approached with extreme caution. The safe approach is – don’t go there. Assert the client’s privilege.

I have set out some sign posts for navigating the conduct of pretrial conferences in Alberta that I hope will contribute to the ongoing discussions among members of the criminal defence bar. I have not considered all the issues that may potentially arise in the application of s. 625.1 of the Code and the Rules of Court. The ones I have discussed appear to be those of recurring concern. I welcome comment and critique.

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