A lawyer in Saskatchewan was cited for conduct unbecoming a member of the Law Society for failing to bring a “relevant and adverse” case authority to the attention of the trial judge presiding over a criminal trial, where his client was charged with driving while disqualified. Kapoor v. The Law Society of Saskatchewan 2019 SKCA 85
As part of his submissions, the lawyer argued that an essential element of the offence was proof of non-enrolment in an alcohol ignition interlock program, which the Crown failed to advance and hence, his client ought to be acquitted.
In support of this argument the lawyer cited a Quebec Court of Appeal case and an Alberta Provincial Court case, but failed to mention an additional Alberta Provincial Court case that was contra the position he was positing, despite the case being referred to in the criminal law text book he relied upon.
The trial judge discovered the relevant case on his own and did not accede to the lawyer’s argument.
The Law Society’s formal complaint stated that he:
“Failed to treat a Judge of the Provincial Court of Saskatchewan with candour, fairness, courtesy and respect, by failing to bring relevant and adverse case authority, of which he was aware, to the Court’s attention during argument of a non‑suit application on March 18, 2014.”
The Law Society relied on two provisions of their Code of Conduct:
1) to “represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect” (Code at s. 4.01(1), now 5.1 (1)
2) that a lawyer must not deliberately refrain from informing a tribunal of any “binding authority that the lawyer considers to be directly on point and that has not been mentioned by another party” (Code at s. 4.01(2)(i), now 5.1 (2)
The lawyer appealed the Law Society’s ruling, where he was reprimand and ordered to pay costs of $6,000.00. At the appellate level, he argued that it was unreasonable for him to be cited for conduct unbecoming for failing to cite a case that was not binding on the Saskatchewan Provincial Court judge, and that his failure to proffer the case was not a breach of his duty of candour.
The appeal court reviewed the transcript and audio recording of the hearing, together with the extract from the legal text book, noting the following exchange between the trial judge and the lawyer:
1. The lawyer referred to the Quebec case which he said supported his position, of which the trial judge expressed surprise that the case represented the law in Saskatchewan, saying that “he was not bound by any other provincial court’s decision, but I’ll listen to your argument”.
2. The lawyer replied ” I am not, your honour, misleading you” and then read an excerpt from the criminal law text book which reviewed the ratio of the Quebec case. The trial judge responded that he would prefer to read the case himself, and again expressed surprise at the ratio of the Quebec case.
3. At that point the judge asked if the lawyer had further submissions and that was when the lawyer cited the Alberta Provincial Court case, for the same point. The trial judge then reviewed the lawyer’s submissions and invited him to present a Saskatchewan case that supported the proposition he was advancing. Hearing there was no similar case, he rejected the lawyer’s argument.
4. Despite the judge’s ruling, the lawyer continued to press his position and suggested he would take the matter to the appellate court. During a break in the proceedings, the judge read the text book excerpt and upon returning to court, challenged the lawyer for failing to draw the contra case to the court’s attention. The lawyer replied that he “honestly intended to bring this contra up” but that he “could not say anything”.
The appeal court dismissed the lawyer’s appeal, finding that the lawyer had acknowledged he was aware of the adverse decision, which was contrary to the position and the case authority he was citing. The Court said that “while he may have suggested to the trial judge that his failure to mention the case was innocent, this position is not tenable when considering the whole of the discussion recorded in the transcript, and counsel for the lawyer did not advance this in the appeal hearing.”
While the case he failed to refer to was not binding on the trial judge, the appellate court agreed with the Law Society that “the specific obligation to disclose binding authority on point does not subsume the more general duty of candour; and in the circumstances of this case, the lawyer’s failure to bring the case to the trial judge’s attention constituted conduct unbecoming.”
Lawdiva aka Georgialee Lang