Court File and Parties

COURT FILE NO.: CR-21-0174 (London) DATE: 20231027 Delivered orally October 23, 2023 and in writing October 27, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Nathaniel Veltman Accused

Counsel: Jennifer Moser and Fraser Ball, Counsel for the Provincial Crown Sarah Shaikh and Kim Johnson, Counsel for the Federal Crown Christopher Hicks and Peter Ketcheson, Counsel for the Respondent

HEARD: October 20, 2023

Ruling on MOTION TO ALLOW DEFENCE COUNSEL TO SPEAK WITH ACCUSED PRIOR TO RE-EXAMINATION

pomerance j.

[1] Is a defence lawyer entitled to speak with the accused at the end of the Crown’s cross-examination, but before re-examination? The presumptive rule governing the conduct of lawyers in Ontario forbids such communication, “[s]ubject to the direction of the tribunal”: Law Society of Ontario, Rules of Professional Conduct, Toronto: LSO, 2000, ch. 5.4-2(c.1) (“the Rules”). However, trial courts in British Columbia and Newfoundland have found the Ontario rule to be unduly restrictive, as have academic commentators.

[2] In the case before me, defence counsel has asked for leave to depart from the presumptive prohibition, in order that he might speak to the accused before he decides whether, and to what extent, he should re-examine the witness.

[3] The accused in this case faces four counts of first degree murder and one count of attempted murder. The Crown alleges first degree murder on the basis of planning and deliberation, and the alternate basis of terrorist activity. The accused has testified in his own defence and has been subject to probing cross-examination by the Crown. That cross-examination is now drawing to a close, and defence counsel seeks a ruling on whether and to what extent he may seek instructions from his client before re-examining.

The Ontario Rule

[4] The Ontario Rule provides as follows:

5.4-2 Subject to the direction of the tribunal, the lawyer shall observe the following rules respecting communication with witnesses giving evidence:

(a) during examination-in-chief, the examining lawyer may discuss with the witness any matter that has not been covered in the examination up to that point;

(a.1) during examination-in-chief by another legal practitioner of a witness who is unsympathetic to the lawyer's cause, the lawyer not conducting the examination-in-chief may discuss the evidence with the witness;

(a.2) between completion of examination-in-chief and commencement of cross-examination of the lawyer's own witness, the lawyer ought not to discuss the evidence given in chief or relating to any matter introduced or touched on during the examination-in-chief;

(b) during cross-examination by an opposing legal practitioner, the witness's own lawyer ought not to have any conversation with the witness about the witness's evidence or any issue in the proceeding;

(c) [FLSC - not in use]

(c.1) between completion of cross-examination and commencement of re-examination, the lawyer who is going to re-examine the witness ought not to have any discussion about evidence that will be dealt with on re-examination;

(c.2) during cross-examination by the lawyer of a witness unsympathetic to the cross-examiner's cause, the lawyer may discuss the witness's evidence with the witness;

(c.3) during cross-examination by the lawyer of a witness who is sympathetic to that lawyer's cause, any conversations ought to be restricted in the same way as communications during examination-in-chief of one's own witness; and

(c.4) during re-examination of a witness called by an opposing legal practitioner, if the witness is sympathetic to the lawyer's cause the lawyer ought not to discuss the evidence to be given by that witness during re-examination. The lawyer may, however, properly discuss the evidence with a witness who is adverse in interest.

[ Amended - June 2009 ]

Commentary

[0.1] If any question arises whether the lawyer's behaviour may be in violation of this rule, it will often be appropriate to obtain the consent of the opposing legal practitioner or leave of the tribunal before engaging in conversations that may be considered improper.

[1] to [6] [FLSC - not in use]

Purpose and Rationale of the Rule

[5] Why do these rules exist? The answer is not mysterious. The rules seek to preserve the integrity of a witness’ evidence, by preventing coaxing, coaching, or the appearance of such conduct. While the accused has the constitutional right to remain silent at his trial, if he does take the witness stand, his testimony is subject to testing just like any other witness.

[6] There is good reason for dubbing cross-examination the engine of truth. Witnesses often appear very different in cross-examination than they do in examination-in-chief. During examination-in-chief, the witness is ushered through their testimony by a sympathetic questioner. Untethered from the friendly lawyer and the comfort of predictable inquiries, a dishonest witness may have difficulty maintaining their account.

[7] Where the witness is the accused, there are clear limits on the scope of questioning permitted by the Crown. Within those boundaries, however, the accused must answer questions without the benefit of legal or strategic advice. Counsel may object to improper questions, but cannot otherwise throw a raft to a client caught in the turbulent tides of impeachment. Any rescue must await re-examination and fit within the narrow parameters of that process.

[8] It is accordingly quite sensible to prohibit communication between lawyer and client during the client’s cross-examination. To hold otherwise is to potentially undermine the truth-seeking process, even when trial participants have the best of intentions. The lawyer may unwittingly alert the witness to the implications of a line of questioning or unintentionally influence the witness’ recollection.

[9] Accepting that the rule makes good sense when it comes to cross-examination, does the same rationale extend to the period preceding re-examination? There is some justification for extending the rule. The decision of whether, and how, to re-examine is one usually made by the lawyer, not the client. The decision to testify must be that of the accused. However, once the accused takes the stand, the zigs or zags of questioning are for counsel to manoeuvre. In other words, this is not a decision that will generally require the consent of, or express instruction from, the client.

[10] It also bears noting that the scope of re-examination is limited to matters raised anew in cross-examination, or that require clarification or contextualization. This is not a second kick at the evidentiary can. It is not the time to repeat the evidence in chief or introduce topics that are new. The defence lawyer holds the brief, and will, in most cases, be able to divine re-examination strategy without having to consult the client.

[11] Finally, it could be said, just as the element of surprise is the friend of impeachment, attempts at rehabilitation should be equally unrehearsed. Permitting communication before re-examination may deprive the trier of fact from hearing the witness’ raw answers to non-leading questions bearing on credibility.

[12] In short, the rule is not without justification when it comes to re-examination. Yet, it has also been criticized for being too rigid in its application, particularly when the witness is the person accused of crime.

[13] I will turn to that now.

Criticism of the Rule

[14] In reciting criticism of the rule, I rely extensively on the scholarship found in two decisions from outside of Ontario: R. v. Montgomery (1998), 126 C.C.C. (3d) 241 (B.C.S.C.), and R. v. Lawlor (1999), 175 Nfld. & P.E.I.R. 13 (N.L.S.C.).

[15] In Montgomery, Henderson J. noted that former Supreme Court of Canada Justice John Sopinka is among those who found the rule to be stricter than was necessary. His book The Trial of an Action, Sopinka and Polin, (Toronto: Butterworths, 1981) opines at page 106 that: “in some respects [the Ontario Rules] may inhibit the discovery of truth and go beyond what was the practice in High Court”:

[16] Picking up on this comment, the late Professor Alan W. Mewett offered the following his textbook, Witnesses (Toronto: Carswell, 1991), at pp. 6-5, 6-6:

Sopinka suggests that the rules are somewhat too stringent. He accepts that counsel should not communicate with his or her own witnesses while they are under cross-examination by opposing counsel without, at any rate, leave of the court. Undoubtedly, during this time, the witnesses are under the control and protection of the court and if there is a recess or adjournment they remain so, but he points out that if new matters are raised in cross-examination, counsel may be at a loss in re-examination unless he or she can ascertain after the cross-examination has been concluded whether the whole story has been told or whether there are some other facts that should then be brought out. While the rules, insofar as they deal with a witness who is in the course of actually being examined, cross-examined or re-examined are concerned, do seem to be consonant with the most widely accepted practices, and for sound reasons, insofar as they deal with the intervals between examination and cross-examination or between cross-examination and re-examination, it may be that they are excessively strict, at least in all circumstances. There is the further complication that if the witness in question is also the accused person in a criminal case, no code of professional conduct can override a constitutional guarantee, and either the right to counsel or the right to a fair trial or fundamental justice must include the right to communicate freely with counsel at any stage of the trial process. Insofar as the Ontario commentary purports to limit communication with an accused/witness and his or her own counsel, it is simply insupportable, though, of course, in civil cases, these considerations do not arise.” [emphasis added]

[17] In Montgomery, Henderson J. was quick to hold that the rule prohibiting communication prior to re-examination is not the law in British Columbia:

No matter what the position may be elsewhere, the weight of opinion in this province favours allowing counsel to discuss the evidence with his or her witness after cross-examination is ended and before re-examination. This allows counsel to correct honest mistakes, clear up ambiguities, and clarify points left obscure during cross-examination without the risk of unanticipated, and perhaps unresponsive, answers from the witness. Forbidding any communication between counsel and a witness before re-examination has a considerable chilling effect on counsel's willingness to re-examine at all. Given the almost universal antipathy to asking a question where one does not know what the answer will be, many counsel will simply forego re-examination if unable to discuss the evidence in advance. While there will be situations (as in Peruta, supra) where any communication at all would be inappropriate, I would not adopt a prohibition on communication as a general rule. In my view, the trial process is better served by a more flexible approach.[emphasis original]

[18] Henderson J. went on to comment that the rule is particularly ill advised when the witness is an accused in a criminal trial:

Nothing I have said here should be taken as having application to defence counsel's right to discuss the evidence with the accused in a criminal case after cross-examination and before his or her re-examination. I am inclined to the view that the special vulnerability of an accused person in a criminal case requires that he or she be permitted to discuss evidence to be given in re-examination without the necessity for leave of the court: see Mewett, supra, page 6-6. However, this aspect was not fully argued before me so the question remains open.

[19] In reaching this conclusion, Henderson J. considered a selection of judicial comments, including some hailing from the United States:

While the view that there should be no communication between counsel and a witness after cross-examination and prior to re-examination is reasonably common, precisely the opposite opinion is also expressed frequently. The United States Court of Appeals, First Circuit, has said that there is no rule of law or ethics forbidding communication with any witness at any point during his or her examination and there is nothing wrong with the practice: In Re United States, 286 F. 2d 556 at 562 (1961). Sloan, C.J. and O’Halloran, J.A., have been quoted as having said during oral argument (in Hoggard v. Mc. And Mc. Ltd., (26 February 1954), Vancouver 132/53 (B.C.C.A.)) that they saw nothing wrong with counsel talking to a witness before re-examination. The third member of the panel, Sidney Smith, J.A., appears to have disapproved of the practice. Wood, J. (as he then was) is said to have expressed the view (in Coward v. Chan and Harvey, Vancouver C846103 (S.C.B.C.) [unreported]) that the rule prohibiting discussion between counsel and his or her witness during cross-examination has no application once cross-examination ends. Gregory, J. and Cumming, J. (now J.A.) have made oral rulings during trials to the same effect: see Mr. Justice B.D. Macdonald; “Speaking to your Witness” (1990) 48 Advocate 565; also see B.A. McLaughlin; “When May Counsel Talk to a Witness During Trial? – The Unwritten Rules” (1989) 47, Advocate 237. [emphasis original]

[20] Similar remarks can be found in the decision of Mercer J., in R. v. Lawlor, who expressly adopted Professor Mewett’s view that consultation has a constitutional dimension when the witness is the accused before the court:

In addition to the foregoing I reflected on whether there is an established practice in this jurisdiction respecting communication with witnesses following the commencement of cross-examination. It is my clear understanding that it is improper in this jurisdiction for counsel to communicate with his or her witness while that witness is under cross-examination. The policy reasons for that rule of practice are obvious. Among other risks it is possible that counsel, unintentionally or not, may alert his or her witness to the implications of a line of questioning or may assist or influence the witness's recollection. The right of opposing counsel to an effective cross-examination could thereby be undermined. However, in a criminal trial where the accused chooses to testify other concerns assume greater importance following cross-examination, as noted by Mewett. Once the Crown has completed its cross-examination consultation by the accused with his or her counsel will enable the accused to make an informed decision respecting re-examination. An accused's right to the effective assistance of counsel is assured by the Canadian Charter of Rights and Freedoms - R. v. Howell (D.M.) (1995), 146 N.S.R.(2d) 1; 422 A.P.R. 1; 103 C.C.C.(3d) 302 (C.A.), at paragraph 59, per Chipman, J.A.; affirmed, [1996] 3 S.C.R. 604; 203 N.R. 247; 155 N.S.R .(2d) 58; 457 A.P.R. 58; 110 C.C.C.(3d) 192. An accused should not therefore be deprived of his right to consult with counsel during the trial except during his or her cross-examination. [emphasis added]

[21] There is an apparent dearth of case law in Ontario on this issue, perhaps because counsel tend to presume that the strictures of the rule apply, and therefore do not seek leave from the court. There is one reported decision from the Tax Court of Canada. In Scavuzzo v. The Queen, 2004 TCC 806, Bowman A.C.J. granted leave for communication between counsel and his client before re-examination because of the complex and extensive nature of the cross-examination:

[14] There is another matter in respect of which counsel for the appellant seeks the court's direction. It has to do with the question whether the new counsel, Mr. Novoselac is entitled to talk to his client, Mr. Jack Scavuzzo in light of Rule 4.04 of the Rules of Professional Conduct of the Law Society of Upper Canada, which reads:

4.04 Subject to the direction of the tribunal, the lawyer shall observe the following rules respecting communication with witnesses giving evidence:

(e) between completion of cross-examination and commencement of re-examination, the lawyer who is going to re-examine the witness ought not to have any discussion about evidence that will be dealt with on re-examination,

[15] The rule is a salutary one and should be observed in the vast majority of cases. This case is however not an ordinary one. Mr. Scavuzzo was cross-examined on a large number of documents that were not in the respondent's list of documents and now he has a new counsel. Whatever prejudice, if any, the Crown may suffer from Mr. Scavuzzo's discussion with Mr. Novoselac, it is far outweighed by the prejudice Mr. Scavuzzo will suffer from not being able fully to instruct his new counsel. The rule in the Upper Canada Law Society's Code of Ethics is not a rule of this court and it is stated in any event to be subject to the direction of the tribunal. Therefore, in my view, Mr. Novoselac may talk to his client. This direction need not be made the subject of a formal order.

Application to This Case

[22] Should defence counsel be excused in this case from the presumptive rule that prohibits communication with the accused prior to re-examination?

[23] The Ontario rule has generated debate over the wisdom of curtailing discussion after cross-examination but before re-examination. The decision in a particular case is, like so many others, contingent on the facts and circumstances before the court.

[24] I have determined that, in this case, it is appropriate to permit communication between defence counsel and the accused before the commencement of re-examination. In reaching this conclusion, I have considered several factors.

[25] First, there can be little doubt about the importance of an accused’s testimony in a criminal trial. Where the accused gives up his right to remain silent, and steps into the witness box, their evidence will often be the difference between conviction and acquittal. Trial verdicts will often hinge on the credibility of exculpatory evidence and its capacity to raise a reasonable doubt. Depending on the force and effect of cross-examination, re-examination may be critical to restoring the accused’s credit in the eyes of the trier of fact.

[26] I will refrain from commenting on the impact of cross-examination in this case. It will be for the jury to assess the weight to be attached to the accused’s testimony, using the well-known framework from R. v. W. (D.), [1993] 1 S.C.R. 742. I will, however, note that the accused has already been in the witness box for several days. Both the examination-in-chief and the cross-examination have been wide ranging in scope, addressing a panoply of issues arising from the allegations. The accused has been thoroughly questioned about his thoughts, perceptions, and beliefs before, during and after the events giving rise to the charges.

[27] This leads to the next point. As discussed above, where the witness is the accused, the issue has a constitutional dimension. The right to a fair trial and full answer and defence are overarching considerations. These constitutional imperatives do not necessarily nullify the Ontario rule, but they may, in some cases, justify a departure from the presumptive prohibition. In some cases, the lack of communication may impede an effective or thorough re-examination, as Brian McLaughlin: See Brian McLaughlin, “When May Counsel Talk to a Witness During Trial? - The Unwritten Rules” (1989) 47:2 Advocate 237 at p. 238:

It is generally considered to be risky to ask a witness a question during trial unless one knows in advance what the answer is. This is especially important, I suggest, where one is trying to rehabilitate one’s own witness after he has been mauled in cross-examination. To get a wrong answer during re-examination in these circumstances is to make a situation which is already bad, worse. The practical effect of the rule described above will be, perhaps, to discourage counsel from engaging in anything but the shortest and safest reexamination…. Given the current state of the trial list and the increasing length and complexity of civil trials, this may be a good thing in itself.”

[28] I find that this is an appropriate case to allow defence counsel to communicate with his client before re-examination. In addition to the factors noted above, I am influenced by the following:

a) The gravity of the charges: The accused faces multiple charges of the most serious variety known to our law;

b) The nature of the issues to be determined by the jury: The accused does not contest that he acted in a manner that caused the deaths and injuries. What is at issue is the accused’s state of mind leading up to, during, and after the acts that caused death;

c) The length of time that the accused has been in the witness box: The accused has been testifying for several days in chief and in cross-examination. The longer the testimony, the greater the risk that a point of clarification may be lost in the mists of time;

d) Defence counsel has asserted that he needs to speak with his client in order to ensure full answer and defence: It is not proper to insist on further detail, or look behind this assertion, for fear of piercing solicitor-client privilege. A bald assertion of this nature will usually not suffice to warrant relaxation of the rule. However, in this case, the assertion is accompanied by other objective circumstances that support its legitimacy.

[29] These factors collectively lead me to conclude that any doubt on the issue should be resolved in the accused’s favour.

[30] The Crown has fairly acknowledged that the accused should be allowed to speak to counsel on the question of whether to re-examine, but not the content of such questioning. While this is a fair concession, I believe that it may not work in practice. It is difficult to do one without the other. The question of whether or not to re-examine cannot be answered in the abstract. It must, by necessity, be tethered to the evidence that emerged during cross-examination. That is, counsel can only make an informed decision about re-examination if counsel is able to identify and understand the areas of ambiguity, uncertainty, or the need for elaboration and/or clarification.

[31] Therefore, in allowing this exception to the presumptive rule, I will permit counsel and client to discuss, not only whether there should be re-examination, but the scope of re-examination that properly arises in this case.

[32] This should not be taken as a generalized comment about all accused witnesses. Every case must be assessed on its individual merits. The right to full answer and defence is a critical constitutional safeguard, but it will mean different things in different contexts. For example, a brief cross-examination in a straightforward case may not warrant this indulgence.

[33] I also note that re-examination is not a panacea. It is limited in its scope and can only rehabilitate if there is actually some rehabilitation to be achieved. Moreover, it goes without saying that other ethical edicts governing communications between lawyer and witness continue to apply. The lawyer must not influence the content of the accused’s testimony. The lawyer may use the communications to identify pertinent questions, but clearly must stop short of identifying or suggesting answers.

[34] Finally, I would be remiss if I did not refer to by the exemplary fairness demonstrated by Crown counsel on this issue. Acting in the highest traditions of the Crown, counsel not only agreed that some discussion between lawyer and client should be permitted, but presented the court with the case law supporting the accused’s request.

[35] For all of these reasons, I grant the defence request to permit communication between lawyer and client at the close of cross-examination, and before the commencement of re-examination.

Original signed by “ Justice Renee M. Pomerance” Renee M. Pomerance Justice

Released orally: October 23, 2023 Released in writing: October 27, 2023