A Response Based on Alice Woolley’s Important “Defending Rapists”
Dear Alice,
I suspect I’m going to regret breaking yet another of my New Year Resolutions so soon in the year but, since none of your CALE colleagues seem inclined to discuss this topic with you, here, I will.
But maybe not where and how you expected. I may be a dinosaur. I’m not that much of a dinosaur.
You wrote:
“Which means that we have to be incredibly clear and careful about articulating and enforcing the ethical boundaries on defence lawyers in sexual assault cases.”
I would modify that statement, slightly, because of its succinctness,as a reminder to all members of the profession and others concerned with the administration of justice: “we have to be incredibly clear and careful about articulating and enforcing the ethical boundaries on all lawyers and judges in all cases, criminal or civil.”
(Note: I emphasize that it is not my intent to imply that Ms Woolley thinks complex consideration of ethical issues are only important in the area of sexual assault and not in law generally. She does not. She has has written numerous articles and a comprehensive textbook (Understanding Lawyers’ Ethics in Canada, 2d., Toronto: LexisNexis, 2016) dealing with ethical issues in law generally. DC)
I don’t minimize the stigma, and cost win or lose, associated with sexual assault allegations and trials. But there’s an analogous – please note I did not write “equivalent”; nor do I intend to get into any discussions of commensurability – stigma associated with allegations of dishonesty against a person whose position in society, or self-image, is intrinsically and inextricably connected to perception of honesty, or allegations of bigotry or prejudice.
In discussions of lawyers’ ethics, one fact too often overlooked by people outside the legal system is this. the issue of ethical boundaries and their honoring, across all areas of law is intrinsically and inextricably connected with issues of competence. That’s the point I’m going to address for the balance of this letter.
For whatever it’s worth, here, I think there’s room to argue that, at the lower levels, much of what seems like unethical behaviour is more likely to be incompetence, nothing more. That’s, of course, a sliding scale because the greater the incompetence, the more the conduct moves into the unethical even if it is “only” because the context suggests the actor doesn’t care about the legality or illegality of the conduct but just its effectiveness for the purpose desired.
In that vein there’s a very instructive Alta CA decision from about 20 years ago which you might know. It’s very short and worth reading. It happens to amount to a criticism of what you’ve described as “overzealousness” in a sexual assault case but in this instance from the participants in the critical narrative (here the Crown and the trial judge); coupled to an instance of lack of competence, or a perhaps lack of appropriate zealousness, or maybe just diffidence, on the part of defence counsel in complying with defence counsel’s obligations under the defence narrative.
R. v. Kusk, 1999 ABCA 49 (CanLII), <http://canlii.ca/t/5sbz>. I’ll quote a few paragraphs. The entire judgment is 14 paragraphs.
[1] The appellant was found guilty of sexual assault by a jury. The act was not disputed; the issue was consent. The complainant and the accused testified to opposite accounts concerning consent. There was not really any other direct evidence on that question. So credibility was central.
[2] During the cross-examination of the accused by Crown counsel, this exchange occurred: … [court sets out improper question an context]
…
Q. And yet – so she doesn’t have a motive, does she, for making this up?
[DEFENCE COUNSEL]: I’m not sure if this witness can answer that.
THE COURT: You answer the question to the best of your ability.
A. I ask myself every day why – why we are all here today because I know what happened, and none of what has been said by her happened. I don’t know what her motive is. I am not going to speculate, but alls I know is the truth, and that’s what I just got finished telling you.”
Though Crown counsel on appeal would not concede the point, we read the above exchange as an objection then overruled by the trial judge. In any event, the jurors would likely have taken it that way
…
[6] In our view, the question is clearly improper, and high authority has said so many times. See, for example .. [court lists cases starting in 1935 with a SCC decision] … This court in the Brown case called such questioning at best “desperation advocacy”.
…
[9] The second reason not to apply the proviso is that many appellate courts have condemned such cross-examination, especially by prosecutors questioning the accused, since at least 1925. We are not aware of any modern authority allowing it. Yet it keeps happening, as the number of modern decided cases shows. In one province (not Alberta), there are so many appellate decisions condemning the practice, but not ordering a new trial, that one wonders whether the prosecutors there think that it is a matter of “Do as I say, not as I do.” Maybe that is why they keep asking the forbidden question. The practice should stop at once, and there is an obvious way to stop it
…
[13] To a person untrained in law and evidence, these false trains of reasoning are highly meretricious. Once that poison is injected into his or her brain, there is probably no antidote. They even lure some with training.
[14] We allowed the appeal and ordered a new trial. We promised reasons, which are set out above. It becomes unnecessary to consider the other grounds of appeal.
I know of Kusk only because, for my area of research, I went looking for cases where appellate courts commented on the apparent willingness of trial judges and counsel to either ignore law they were assumed to know or just not know the law at all. (Remarkably, at least in British Columbia say since 2007, there seems to be a practice where some judges and counsel appear to believe that BC law is what BC judges say it is, regardless of what the Supreme Court of Canada has said the law is (at least if the SCC view isn’t the view they want.) I am interested in knowing whether Kusk is now taught in Canadian law schools outside of criminal law or evidence courses. It wasn’t taught, for obvious reasons, when I was in law school in the last millennium.
The lack of CanLII cites to it suggests it’s not widely known in practice. One might take that to imply it’s not widely mentioned in law schools. According to CanLII Kusk isn’t mentioned in any commentary. That depends on CanLII’s definition of commentary, of course, and where its search engines go looking. See, for example, the results of searches on “R v Kusk” in (1) Google and (2) DuckDuckGo – links given below:
(2) https://duckduckgo.com/?q=%22R+v+Kusk%22&t=hy&ia=web
If the links don’t work: all I did was plug “R v Kusk” (in quotation marks” into the browser search terms box.
Has the practice of asking similar questions that counsel ought to know are improper, and trial judges ought not to permit, stopped outside of Alberta?Apparently not in Ontario. R. v. Dhaliwal, 2016 ONCA 652 (CanLII), <http://canlii.ca/t/gt68r> (possession of drugs & guns & public mischief
[11] This line of questioning was improper. It put an onus on the appellant to explain the allegations against him: R. v. S.(W.) (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509, 90 C.C.C. (3d) 242 (C.A.) at 252; R. v. Vandenberghe (1995), 1995 CanLII 1439 (ON CA), 96 C.C.C. (3d) 371 (C.A.) at 373.
[12] The point was made by the Alberta Court of Appeal in R. v. Kusk, 1999 ABCA 49 (CanLII), 132 C.C.C. (3d) 559, at p. 564:
This mischievous cross-examination wrongly suggests that the witness is advocating a certain view, indeed advocating corollaries of that view. See R. v. Baldwin, [1925] All E.R. Rep. 402, 18 Cr. App. R. 175 (Eng. C.A.), 178-79 (C.C.A.). That runs together the three roles of witness, accused, and defence counsel. When the accused testifies, he is a witness, not an advocate. The accused may try to cooperate in answering the forbidden question, or he may vaguely feel that something is wrong with it, but not one lawyer in 10,000, let alone a lay person, could say on the spot what that wrong thing was: R. v. Baldwin. Here the accused vaguely saw the point, and his answer (quoted above) stumbled toward what the Court of Criminal Appeal said in 1925. Yet counsel and the trial judge missed the valid point which he was groping to express, albeit incompletely. And the jury may have felt, as the Court of Criminal Appeal points out, that inability to answer substantively indicated concealment.
[13] Asking the appellant, in front of the jury to provide his “theory” of the case or to explain the evidence against him undermined the presumption of innocence. Permitting the Crown to ask the question, and requiring the appellant to answer it, could only have led the jury to believe that he had some obligation to provide a “theory”. The line of questioning should not have been permitted.
I didn’t check through the other instances of Kusk cites at the appellate level to see if any of them involve this sort of issue or at the trial level to see if they’re reports of trial judge’s ruling on the (in)admissibility of this type of question.
I’ll add one more point, which I believe is one you made in your piece, but not in this way. You wrote is that the presumption of innocence “will almost always inflict harm on a complainant” even with compliance with ethical boundaries. As you know, the same situation exists as a result of the burden of proof / risk of non-persuasion in civil cases. What too many people outside of the legal system seem to forget, or chose to ignore, is that the core of the oath of the lawyer does not contain the promise to “do no harm”. While we might say that what we are promising, as lawyers, is that we “shall attempt to do no harm”, the line between “try” and “not do” – Yoda notwithstanding- may be easily seen in theory but not (as a different philosopher (Yogi) might have noted) so easily observed in practice.
Best regards,
David
I’m sorry, but I found this response to Alice Woolley’s article very confusing. Are you suggesting that as lawyers, we do not have an obligation to mitigate the potential harms associated with protecting the presumption of innocence? You also suggest that in lower court cases, “what seems like unethical behaviour is more likely to be incompetence, nothing more.” I agree the incompetence exists, but isn’t this incompetence one of the many reasons why we must interrogate the popular narratives, and better articulate and enforce ethical boundaries as Woolley suggests? I guess I’m not entirely clear what your letter/objection is about.
As an aside, as a regular reader of Slaw, I am disappointed by the lack of editing in this post.