Tom Jarmyn

Limitations on Special Advocates

This article from the Ottawa Citizen reports a decision of Judge Noel in the Harkat case with respect to the ability of special advocates to test the case against the individuals whose interests they are representing in security certificate proceedings.  The text of the decision is not yet posted.

Special advocates are appointed in security certificate proceedings pursuant to section 85 of the Immigration and Refugee Protection Act. Special advocates, once they are appointed, are supposed to test the government's case against the subject of a certificate but are prohibited from communicating with the subject.  Note that I do not suggest the special advocate is representing the interests of the subject because section 85.1(3) says that the subject is not the client of the special advocate.

Justice Noel's decision arises from an application by the special advocates to access the personnel files of the first agent who interviewed Mr. Harkat.  This agent was dismissed from service when it was found that she was romantically involved with an individual who was under investigation by CSIS.  The other application that was dismissed was a request to cross-examine, in a closed court, human intelligence sources whose evidence was highlighted in the files.  Justice Noel denied the request because covert sources are necessary to intelligence gathering and requiring those sources to testify, even in closed court, would adversely affect national security.

Presumably these are sources who are not third parties and are under the control of the government.  Prohibiting counsel from questioning individuals who are under the control of the government seems like a further unjustified fetter on the ability of the special advocate to test the case.  They are already prohibited asking the subject anything about the file and are therefore testing the case in circumstances in which they have no real knowledge of how they subject's circumstances.

One wonders if there will come a time that teh special advocates realise they are being fettered to the point of becoming ineffective in these matters.  I continue to ask whether these lawyers are acting ethically in accepting these restrictions - I realise that they are trying to make the best of a bad situation but if they cannot effectively accomplish the task that is set to them why should the accept it.

If the government was not able to obtain lawyers to fulfill these roles then it would not have the fig leaf of these appointments to justify secret hearings.

Ethics versus Productivity

This article by Kirk Makin in the G & M on Wednesday suggests that there is a conflict between billing requirements for junior lawyers and a decline in ethics in the legal profession.  While I have many critical things to say about the way the legal profession organizes itself and seems to encourage certain responses I have to say that I find it amusing when junior lawyers complain about how much pressure they are under to produce.  Where else would a first year professional even contemplate a salary of $90,000 a year? 

Yet this 2007 survey from Lawyers Weekly indicates that first year lawyers at mid-size to large law firms will receive salaries ranging from $65,000 to $90,000 and that the range for lawyers with 1 to 3 years experience is from $65,000 to $117,000.  People who earn those types of wages are expected to produce.  Firms that paid their associates less than market but offered a better professional development experience often find themselves passed over by the very same talented associates who claim to look for a lifestyle but in fact want the top dollar.

There is lots of information about firms out there and it is easy to find out which firms demand production and which will provide a good experience.  It is incumbent upon these young lawyers, who are advising clients on very difficult matters, to make the personal choices that will allow them to become the lawyers they want to be and not rely upon others to make those choices for them.

The other interesting element of this article is its tendency to conflate the concepts of professional skill and competence with ethics.  Professional skill may, and I emphasise may, be a subset of ethics but it is by no means all or even a majority of the elements of legal ethics.

Lawyers - Virtue Ethics, Utilitarian Ethics or Kantian Ethics

There is a common belief that the ethics of the legal profession is based upon a virtue ethics model.  Namely that our goal is to be the best lawyer that we can be based upon a concept of what the perfect lawyer is.  There is a focus on the pursuit of justice as a primary aim among other things.

The problem with that conception is that it does not provide us with a basis to balance our obligations to a number of parties within the system.  How do we choose when there is a conflict between various obligations to parties.  What do we do when a lawyer's duty to a client conflicts with broader obligations to either society or the court.

I think there is a realistic argument that we could, instead, use a utilitarian ethics model in which we assess our individual obligations based upon a utility model aimed at achievement of justice. The problem with this approach is that it would require us to evaluate these procedures on a step by step basis rather than having a broad set of rules and therefore there would be concerns about uncertainty.  One method of resolving this would be to use the two step utilitarian analysis of Richard Hare - develop a broad set of rules but acknowledge there are circumstances of conflict in which one value or another may have to be given up.  If there is a consistent patter of sacrificing one rule then we will end up having to modify the rule.

However, I think that there may be a model based upon duty ethics that could work and this will be something that I intend to explore over the next few months.  In the long run I would like to test the duty ethics model against the utilitarian ethics model and determine how they will resolve issues of privilege and confidentiality.

Assessing the Rationality of Others

How does one assess the rationality of the actions of another person if you do not know what they know?  We make decisions based upon information and I think that we can all agree that none of us has perfect information.  The only thing that we know about other actors is that their information is not perfect - it may be the same as ours or different.

The one thing that we may be able to assess is the consistency of the other actor if we have knowledge of their history.

A Practical Exchange of Authority

Finance Minister Flaherty wants a national securities regulator and Transport Minister Baird wants to cut red tape in order to get infrastructure projects moving.  How about the Federal government unilaterally agreeing that it will recognize an environmental assessment carried out pursuant to a provincial environmental act. 

The Federal government would be asserting its paramountcy in a field where national standards are appropriate but backing out of an area where local interests are highest importance (who else but local authorities will have the best understanding of how the environment will be affected) and eliminating a massive duplication of authority, paperwork and expense at the same time.

Crowns Prosecutors in Police Stations - Maybe Creating Problems?

The Ontario Government has decided to put major case crowns in police stations in order to provide pre-charge advice to police.  This is a reasonable idea in that it will allow the police access to early advice with respect to investigations and prosecutions.  Based upon this advice they will be able to allocate resources to prosecutions in the most effective manner and, hopefully, will be able to avoid steps which may hinder the prosecution at a later date.

These prosecutors will be major case Crowns with experience in these matters.  Once they start giving advice with respect to the investigation it is likely that they will be excluded from the prosecution if the defense puts the conduct of the investigation into issue.  As soon as the defense alleges improper conduct by the police it is likely that the advice given by the Crowns will come into evidence as the police officers attempt to establish the bona fides of their investigation.

Will the fact that these Crowns have given advice with respect to the conduct of the investigation disqualify their other colleagues from the Major Case Unit from acting as Crowns in a hearing into the propriety of an investigation?  There is a long line of authority that says a lawyer cannot act as counsel in a matter in which another lawyer in his firm will give evidence.  I wonder whether it would have been a good idea to create an entirely separate unit called investigative support and attach the Crowns officially to that unit so that it can be argued that there is an effective wall between the investigation and prosecution of a major case.

Moral Accountability of Lawyers

The adversary system is premised upon the idea that lawyers are obliged to represent their clients.  That respect for human dignity and autonomy of the client allows the client to dictate, in situations where there moral status is a risk, how the story is told and what is said.  Because of this conception lawyers are not morally accountable for what they do in the course of representing their clients - they act as agents.

What happens when, as with special advocates pursuant to s.85.1(4) of Immigration and Refugees Proceedings Act, the lawyer is specifically not representing the individual?  Can lawyers even be lawyers where they no not have a client?

Division of Powers and Lawyers

I am doing a lot of work with respect to the creation of the position of Special Advocate pursuant to Bill C-3 An Act to Amend the Immigration and Refugee Protection Act.  This Bill responded to the Supreme Court of Canada's decision in Charkaoui et al striking down the security certificate process on the grounds that it violated the subject person's rights under section 7 because it did not allow them to make adequate response to the allegations against them.

The essence of the Bill is that it creates the position of Special Advocate who will be able to see the secret material but once secret material has been received will not be able to communicate with the person except with leave of the judge hearing the proceeding.  The Bill then goes on to say that nothing in the Bill will create a solicitor-client relationship with the named person.

This strikes me as odd as whether a solicitor-client relationship arises is a matter of provincial jurisdiction and not within the federal power.  Whether something is the practice of law and the terms under which law is practiced are determined in accordance with the Law Society Act of the province in which the event occurs.

The Practise of Law and Civility

This article from the Memphis Daily News discusses the practise of law in Memphis and the desire of the Bar to promote a more collegial practise of law.  I suspect one of the commenters is correct when he says that the good old days were not necessarily so good.  However, possibly because I generally practised in small towns with the later portions of my practise migrating more and more to cities, I must say that there was a change in tone over the course of my 14 years in the profession.  I had a sense that lawyers were no longer telling their clients the facts of life and were in many cases channelling their client's desires without restraining them.

I am not sure why but there seemed to be a growing sense of 'adversariness' as demonstrating how you best represent your clients.  I have come across more than one or two lawyers who seemed to revel in the fight rather than focus on achieving the just outcome.  The idea that 'so and so' is a good lawyer because he gave the judge and the other side hell and did not take any guff from them - and when you looked at their track record their clients were always losing and they were always on the wrong side of some of the most outrageous issues.

State of Mind and Privilege

This decision from the BC Supreme Court in the matter of Canadian Community Reading v. Ewanchyna et al., canvasses two issues: 1) can there be a partial waiver of privilege; and, 2) what happens when a party puts its legal state of mind in play.

Ewanchyna was a member of the Board of the Canadian Community Reading Plan (CCRP).  CCRP was attempting to decide whether to negotiate the sale of a portion of its business to a competitor.  Ewanchyna was unhappy with this and consulted counsel.  That counsel commenced a petition alleging oppression which was discontinued three weeks later.  CCRP commenced an action against Ewanchyna alleging that he had disclosed confidential information, violated his fiduciary duty as a director and adversely affected the sale prospects of CCRP.  Ewanchyna defended on the grounds that the petition was filed by mistake and without his instruction.

CCRP sought production of a number of document and communications between Ewanchyna and his solicitors.  Ewanchyna disclosed some documents in redacted form but, in general, resisted the application.  One of the interesting things to note is that Ewanchyna appears to have been represented in this application by the same solicitors who are alleged to have mistakenly filed the position.  Given that is their advice, actions and evidence that are at the heart of the matter I am surprised that they tried to stay on the record.

In responding to the application Ewanchyna did not file an affidavit testifying that he did not give instructions to file the petition.  

The court concluded two things: 1) it is not possible to partially waive privilege.  Once it is waived it is gone; and, 2) when a party puts their legal state of mind into issue then all of the advice that goes into the making up of that legal state of mind is in play.