ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CP-14-400000158-00AP
DATE: 20151217
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JUNGMIN LEE
Robert Wright, for the Crown
Cameron Fiske, for JungMin Lee
HEARD: December 1, 2015
r.f. goldstein j.
[1] What is the effect when a new Crown counsel is assigned to a file, re-evaluates it, and determines that she must take a position that is different from that taken by previous Crown counsel?
[2] In this case, Crown counsel sought to adjourn a summary conviction appeal because she had decided to cross-examine Mr. Lee, the Appellant, on his fresh evidence affidavit. Previous Crown counsel had decided that he would not cross-examine Mr. Lee. Mr. Fiske, Mr. Lee’s counsel, argued that the Crown had given an undertaking not to cross-examine, and that no adjournment should be granted for that purpose. He further argued that if an adjournment was granted, costs should be awarded against the Crown.
[3] The application for adjournment was argued on December 1, 2015. I found that there was no undertaking and that no costs should be ordered. I granted the adjournment with reasons to follow. These are my reasons.
BACKGROUND
[4] Mr. Lee was convicted by Mr. Justice Grossman of the Ontario Court of Justice of breach of recognizance. He pleaded guilty and received a suspended sentence and 12 months’ probation. Mr. Lee has filed an appeal against conviction and sentence. He claims that he was denied the effective assistance of counsel. Mr. Lee was a visitor to Canada at the time of the offences and his trial. He is a citizen of Korea. I am advised that he is without status in the country as his visitor’s visa has expired. He has since married a Canadian citizen. He is under a deportation order. The deportation order is one of the consequences of his guilty plea and sentence. He claims that his trial counsel did not properly advise of the immigration consequences of his guilty plea.
[5] The summary conviction appeal was originally scheduled for January 18, 2016. Mr. Fiske, Mr. Lee’s counsel, filed his material including an affidavit of his client. Where a person claims ineffective assistance of counsel, there is a protocol in place regarding the evidence to be put before the appeal court. The protocol requires that an accused person file an affidavit. The protocol also requires that his trial counsel file an affidavit. All this has been done.
[6] Crown counsel originally communicated to Mr. Fiske that he would not cross-examine Mr. Lee. Mr. Fiske perfected the appeal. A new Crown counsel, Ms. Malik, re-evaluated the file and decided that cross-examination of Mr. Lee on his affidavit was necessary. The Crown therefore sought an adjournment of the January 18, 2016 hearing date.
[7] Mr. Fiske argued that the adjournment ought to be denied and that, if the adjournment was allowed, there should be costs consequences to the Crown. He argued that the adjournment should not be granted because there was significant prejudice to Mr. Lee. He is subject to a deportation order. It will cost him money to have Mr. Fiske re-do the factum and spend time with him at the cross-examination. He also says that the previous Crown counsel had given an undertaking not to cross-examine Mr. Lee. By now seeking an adjournment the Crown has breached an undertaking. Breach of an undertaking from Crown counsel is, he argues, a very serious matter deserving of sanction.
ANALYSIS
(a) Did Crown counsel give an undertaking not to cross-examine Mr. Lee?
[8] A solicitor’s undertaking is a solemn promise to do or not to do something. Breach of an undertaking is a very serious matter. The Courts will enforce an undertaking: Valleyfield Construction Ltd. v. Argo Construction Ltd. (1978), 1978 1436 (ON SC), 20 O.R. (2d) 245 (Ont.H.C). Breach of a Crown undertaking is particularly serious, given the quasi-judicial position that Crown counsel occupy in our system.
[9] The Rules of Professional Conduct of the Law Society state the following regarding undertakings:
7.2-11 A lawyer shall not give an undertaking that cannot be fulfilled and shall fulfill every undertaking given and honour every trust condition once accepted.
Commentary: [1] Undertakings should be written or confirmed in writing and should be absolutely unambiguous in their terms…
[10] In R. v. I.C., 2010 ONSC 32, 249 C.C.C. (3d) 510 Crown counsel initially sought to use statements by the accused only for the purpose of cross-examination. Later, Crown counsel changed his mind and indicated to defence counsel that he wished to introduce the statements during his case in chief. The defence argued that the initial Crown position amounted to an undertaking and brought a motion to prohibit the Crown from introducing the statement. Justice Clarke analyzed whether the Crown had given an undertaking or made an agreement. Several factors went into whether an undertaking had been given. Justice Clarke stated the following at para. 52:
Clearly, there was here "a manifestation of an intention to act or refrain from acting in a particular way". But to amount to a promise, such intention must be conveyed "in such a way that another is justified in understanding that a commitment has been made ..." Unfortunately, that latter portion of the definition simply begs the question of whether the defence was reasonably entitled to expect that the Crown would not change its mind on the use to be made of the statements.
[11] Justice Clark found that the actions of the Crown did not amount to an undertaking. As well, there was no agreement between the parties. The defence did not do something or refrain from doing something in reliance on something said by Crown counsel.
[12] In my view, the same principle applies here. Mr. Fiske perfected the appeal, it is true, based on the lack of cross-examination. He will undoubtedly be permitted to file new material, or file an amended factum, taking the results of the cross-examination into account.
[13] There must be room for honest differences of opinion resulting in a change of tactics, as long as those decisions do not result in an abuse of process or real unfairness. The decision to refrain from cross-examination was a tactical decision. Crown counsel have an enormous amount of discretion in how they conduct criminal prosecutions. That discretion flows from the nature of the Crown as a public prosecutor. The Crown has a public duty to litigate cases fairly and objectively but nonetheless seek convictions where the evidence warrants and it is in the public interest. Crown counsel must not be precluded from exercising discretion – which, in some cases, includes the decision to change tactics – except where the decision would constitute an abuse of process or result in real and substantial prejudice to the accused. There was nothing at all approaching an abuse of process in this case, and no real prejudice to Mr. Lee. It was, as I have noted, an honest difference of opinion as to the right tactic to take.
(b) Should costs be granted against the Crown?
[14] Costs will be awarded against the Crown only in very rare circumstances. There are only two such: first, where there has been misconduct; and second, where there are such exceptional circumstances that fairness requires the accused not carry the financial burden: R. v. Tiffen (2008), 2008 ONCA 306, 90 O.R. (3d) 575 (C.A.) at para. 94. The Crown’s misconduct must be such that it is a "marked and unacceptable departure from the reasonable standards expected of the prosecution”: R. v. Sankar, 2012 ONSC 3430 at para. 59. The residual jurisdiction to award costs should only not be awarded “absent something rare or unique, resulting in something akin to an extreme hardship on the defendant”: R. v. Hallstone Products Ltd., [2000] O.J. No. 1051 (S.C.J.) at para. 33. This two-part test applies to appeals: R. v. Garcia (2005), 2005 4831 (ON CA), 194 C.C.C. (3d) 361 (Ont.C.A.) at paras. 12-13.
[15] These excerpts from the Ontario Crown Policy Manual address the responsibilities of Crown counsel in a general way:
Public confidence in the administration of criminal justice is bolstered by a system where Crown counsel are not only strong and effective advocates for the prosecution, but also Ministers of Justice with a duty to ensure that the criminal justice system operates fairly to all: the accused, victims of crime, and the public…
A prosecutor’s responsibilities are public in nature. As a prosecutor and public representative, Crown counsel’s demeanor and actions should be fair, dispassionate and moderate; show no signs of partisanship; open to the possibility of the innocence of the accused person and avoid “tunnel vision.”
[16] These excerpts from the Public Prosecution Service of Canada Desk book are to much the same effect, although more detailed:
The DPP and his or her delegated Crown counsel are vested with very substantial discretionary powers. Public interest considerations require Crown counsel to exercise judgment and discretion which go beyond functioning simply as advocates. Counsel appearing for the DPP are considered “ministers of justice”, more part of the court than proponents of a cause…
Fairness, moderation, and dignity should characterize Crown counsel’s conduct during criminal litigation. This does not mean that counsel cannot conduct vigorous and thorough prosecutions. Indeed, vigour and thoroughness are important qualities in Crown counsel…
Criminal litigation on the part of the Crown, however, should not become a personal contest of skill or professional pre-eminence.
The conduct of criminal litigation is not restricted to the trial in open court. It also encompasses Crown counsel’s prosecutorial authority leading up to trial, for example, the decision to prosecute, referring an alleged offender to an alternative measures program, disclosure, decisions on judicial interim release, the right to stay proceedings or withdraw charges, elect the mode of trial, grant immunity to a witness, prefer indictments, join charges and accused, consent to re-elections, and consent to the waiver of charges between jurisdictions. Both in and out of court, Crown counsel exercise broad discretionary powers. Courts generally do not interfere with this discretion unless it has been exercised for an oblique motive, offends the right to a fair trial or otherwise amounts to an abuse of process. Accordingly, counsel must exercise this discretion fairly, impartially, in good faith and according to the highest ethical standards. This is particularly so where decisions are made outside the public forum, as they may have far greater practical effect on the administration of justice than the public conduct of counsel in court…
[17] The U.K.’s Crown Prosecution Service manual specifically permits prosecutors to revisit a decision to discontinue proceedings:
10.1 People should be able to rely on decisions taken by the CPS. Normally, if the CPS tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, the case will not start again. But occasionally there are reasons why the CPS will overturn a decision not to prosecute or to deal with the case by way of an out-of-court disposal or when it will restart the prosecution, particularly if the case is serious.
[18] The standards noted in the various policy manuals are the standards expected of prosecutors. In my view, the tactical decision to change position and cross-examine Mr. Lee does not even come close to a marked and unacceptable departure from the standards expected of the prosecution. Tactical decisions resulting from an honest difference of opinion as to how to proceed with a case do not amount to misconduct.
[19] There were also no exceptional circumstances justifying an award of costs. A simple adjournment did not significantly prejudice Mr. Lee. Furthermore, Mr. Lee is making the most serious kind of allegations against his former counsel. The Court needs a full record to make a determination of ineffective assistance of counsel.
DISPOSITION
[20] As noted, the adjournment application was granted on December 1, 2015.
R.F. Goldstein J.
Released: December 17, 2015
COURT FILE NO.: CP-14-400000158-00AP
DATE: 20151217
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JUNG MIN LEE
REASONS FOR JUDGMENT
R.F. Goldstein J.