As a lawyer, I am not supposed to say anything publically that would bring the administration of justice into disrepute. And I should not attack another lawyer or Judge without them having an opportunity to defend their position, or at least acknowledging their position as one upon which reasonable people can disagree.
That said, it is hard to be the last bastion of even-handed reasonableness sometimes. My ethical duty is to defend my client fearlessly in any way I can without breaking the law or engaging in “sharp practice”. Sometimes I am the last person on the planet aside from family and friends who is actually standing up for the accused. Yet ironically, sometimes, I end up having to defend the justice system to my clients and those who care about them. I am the one who has to explain the reason why and how the justice system is seeking its pound of flesh from them.
So what is defence counsel to say to the accused and concerned family members in a case like R. v. Murphy 2012 ONCA 573? In that case, the defence tried to call a witness to testify that it was him and not the accused who committed the offences charged. Sounds pretty relevant, right? Perhaps police and society at large might want to thank the defence for making sure the real culprit is identified, subject of course to the Crown and trial Judge’s opportunity to fully cross-examine the witness and, if necessary, conduct related investigations? How would I explain to the accused and his family that the trial Judge would not allow the real culprit to testify and take responsibility for the crimes?
In R. v. Murphy, the trial Judge ruled that the defence could not call the real culprit because “there is no evidence linking the third party suspect to the crime”. Try explaining that to your client whom you have also advised that he is “presumed innocent” and that the burden of proof is on the Crown.
In R. v. Murphy the accused had to be convicted and have a total sentence of six years and five months in jail imposed before he could get the matter to a higher court. Once that happened, of course, the Court of Appeal for Ontario agreed that the trial Judge had imposed a burden on the accused that was inappropriate.
The Court of Appeal agreed “that the trial judge erred in refusing to permit the defence to call McClelland because he misapprehended the nature of his evidence and misapplied the test for its admission.” Writing for the Court, Justice John Laskin went on at paragraph 22:
Why, I ask rhetorically, should he not have been permitted to call MacLellan to say, “It is I, not Murphy, who owns the gun and the narcotics the police seized”? Obviously, it would be for the jury to decide whether to accept that evidence or whether it at least raised a reasonable doubt about Murphy’s guilt. On its face, however, the proposed evidence was sufficiently probative and relevant that the defence should not have been precluded from calling it.
 It seems to me that the trial judge misapprehended the nature of the proposed evidence and, therefore, at para. 60 of his reasons, erred by requiring Murphy to show other circumstances connecting MacLellan to the offences charged.
I cannot tell you how I would have explained this trial Judge’s Ruling other than to explain the appeal process and hope the client is patient. And that he can afford to pay for the appeal, and the re-trial that the Court of Appeal will order after all of the resources poured into the first trial have been so badly wasted.
The taxpaying public has to pay for another trial now; 12 different members of the community could be required to take weeks off work to sit through the retrial. Does the taxpayer have any idea of the cost? It is noteworthy that the Crown first argued that the defence should not even be able to ask the Court’s permission to call the witness (see para. 20 of the trial Judge’s Ruling). The Crown’s alternative positions can be charitably described as including everything necessary for the trial Judge to get the matter completely wrong (see see para.s 21-28 of the trial Judge’s Ruling), as the Court of Appeal ultimately found he did. Nobody even jokes about voters getting a chance one day to express their disdain for this untenable and horribly costly crown posturing. Should taxpayers know? Should they have a say? Should there be accountability?
As an aside, all of the extra work demanded of the defence lawyer in R. v. Murphy (see paragraphs 10 and 11 of the appeal decision, for example), likely would not have been services covered by Legal Aid Ontario. If the accused was legally aided, or without funds to pay further fees, the defence lawyer would just have to give up another evening or two doing the unpaid work preparing the application for permission to call the real culprit as a witness. That unpaid work is part of the ethical obligation of being counsel of record. It is also a reason that more and more experienced criminal defence lawyers find it is simply impossible to defend people properly through legal aid. It is not just the government’s refusal to fund legal aid beyond 1980’s levels. Judges and Crowns too have plenty of opportunities to make legal aid work financially non-viable for defence lawyers – as in this case – again with taxpayers probably unaware. Taxpayers unconsciously prefer to pay for years of incarceration instead of paying the fractional cost to make legal aid work viable for defence lawyers (that juxtaposition will be fleshed out in a future post on this Blog about a case in which I saved a client from an extra 11 months in jail only to find out that Legal Aid Ontario had basically stopped paying for the services necesary to achieve that result).