Observations from an Ethical Perspective on Fitness,
Insanity and Confidentiality
Allan S. Manson*
Synopsis
Introduction
I.
Institutional Ethics: The Professional Component
as a Source of Guidance
The Lawyer’s Duties and the Ideology of Advocacy
H.
III. Ethical Problems and the Mentally-Ill Accused
IV.
V.
VI.
VII.
Conclusion
The Lawyer’s Duty to Inquire: Obtaining Psychiatric Material
Confidentiality of Psychiatric Material
Ethical Aspects of the Issue of Fitness
Insanity: The Ethical Dilemma
Introduction
When representing an accused who may be mentally ill, the problems
which tend to arise during the early stages of the proceedings do not only
relate to matters of substance, procedure and tactics but often present a
disquieting ethical dimension. In the ordinary case, a lawyer can usually act
on instructions obtained from an informed, reasoning client so long as the
accused is aware of the risks and the potential consequences. Once the
element of mental illness is injected into the process, the ethical problem
becomes a common feature, adding a new dynamic and new conflicts into
the lawyer’s decision-making role. The inconsonant nature of the situation
has been described succinctly by Chernoff and Schaffer
* Of the Faculty of Law, Queen’s University. This paper is a substantially expanded
version of a paper delivered at the Workshop on Criminal Law and the Mentally Disabled
presented by the Faculty of Law, Queen’s University and the Frontenac Law Association in
Kingston on 8 November 1980 and by the Faculty of Law, Queen’s University and the Law
Society of Upper Canada in Toronto on 30 January 1981. The author wishes to thank his
colleagues Professors Delisle, Price, Sadinsky, Stuart and Weisberg for their advice and
generous assistance throughout the writing of this paper.
19821
AN ETHICAL PERSPECTIVE
In a case where the accused is or may be suffering from mental illness, however, a new
range of ethical dilemma arises – problems for which there may be no solutions,
problems involving such unacceptable alternatives that it is inappropriate and unfair to
force the defense attorney to choose among them. Defense counsel in such cases may
find that, to represent his client effectively and achieve a result which is in his best
interest, he has to conduct himself in a manner that is inconsistent with established
notions of legal ethics and professional responsibility.,
Faced with the factor of mental illness, the lawyer-client relationship changes
and continues to change as one’s confidence in instructions diminishes.
Suddenly, new issues must be addressed and decisions customarily made in a
straight forward fashion become uncommonly complex. The usual process
of weighing
risks and comparing potential consequences becomes
supplanted by a spectrum of nebulous issues requiring consideration of
questions as to dangerousness, the likely effectiveness of treatment, the
availability of treatment and the comparative detriment of imprisonment
and psychiatric confinement. Throughout, there is the nagging fear that
even well-meaning paternalism may be inappropriate -particularly when
exercised by someone not especially experienced in, or trained for, dealing
with mental illness.
This paper focuses on the ethical aspects presented by the issues of fitness
to stand trial and insanity at the time of the offence, particularly in situations
where the accused disavows mental illness or instructs counsel not to raise a
mental state issue. These problems necessarily raise the question whether
counsel acting for a mentally-ill accused is entitled to take control of the case
by superseding instructions. The problem is further exacerbated when one
considers that to raise a mental state issue over the objection of one’s client
likely involves breaching the client’s privilege with respect to psychiatric
material. Can a lawyer take these extraordinary steps and, if so, in what
circumstances is the action justified? How a lawyer resolves the problem
depends on how the lawyer perceives the nature of his or her role in an ethical
context. The lawyer must develop a general ethical posture which comes to
grips with the potential distinctions between personal ethics and the group
code of ethics, which I shall call institutional ethics. At the very least, the
lawyer must appreciate the gaps in the institutional code of ethics and
struggle with the question of how, and to what extent, one’s personal
judgment can fill them. One must recognize that the exercise of personal
judgment invokes the influence of moral, ideological and political views.
Thus, while a particular problem may not be answerable simply by reference
to the professional code, the response to the problem which flows from the
exercise of personal judgment may conflict with other aspects of the code.
IChernoff & Schaffer, Defending the Mentally Ill: Ethical Quicksand (1972) 10 Am.
Crim. L Rev. 505, 505.
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In order to address responsibly an ethical problem, it is essential that one
starts with a clear understanding of the substantive and procedural sides of
the issue. The issues of insanity and fitness are conceptually distinct: fitness
relates to the ability of an accused to participate in, and be subject to, the
process of adjudicating criminal responsibility; insanity, on the other hand,
goes to the question of criminal responsibility. From reported decisions, 2
one often senses confusion, among lawyers and psychiatrists alike, as to the
meaning of fitness and the factors relevant to its assessment.
The statutory manifestation of fitness to stand trial is found in s. 543 of
the Criminal Code.
543. (1) A court, judge or magistrate may, at any time before verdict, where it appears
that there is sufficient reason to doubt that the accused is, on account of insanity,
capable of conducting his defence, direct that an issue be tried whether the accused is
then, on account of insanity, unfit to stand his trial.3
Clearly, the uncertainty arises from the attempted integration of a vague and
undefined concept of insanity with the issue of the accused’s ability to
conduct a defence. As one writer has said with respect to the use of insanity
in s. 543:
it has the obvious defect of either not meaning what it says or being a word so larded
legal and medical definitions and
over with secondary meanings, conflicting
preconceptions, as to be of no value in the Criminal Code. 4
While the present rule has been interpreted judicially to provide criteria for
addressing unfitness arising from mental disability,5 the rule fails to resolve
the problem of communicative disability of a physical nature6 –
an
that the source of the
unavoidable dilemma when one considers
contemporary expression of the fitness rule arises from two 19th century
cases dealing with deaf mutes. 7 Sufficient attention has been paid by
authors8 to the substantive inadequacies of the fitness rule to prompt the
2See, e.g., R. v. Morris (1977) 35 C.C.C. (2d) 157, 159-60 (Alta. S.C., App. Div.) per
Clement J.A. addressing the psychiatrist’s opinion and the trial judge’s ruling.
3 Enacted in its present form by the Criminal Code, S.C. 1953-4, c. 51, s. 524.
4 Ryan, Insanity at the Time of Trial under the Criminal Code of Canada (1967) 3 U.B.C.
L. Rev. 36, 48.
5 See R. v. Roberts (1975) 24 C.C.C. (2d) 539 (B.C.C.A.); R. v. Waltucky (1952) 103
C.C.C. 43 (Sask. C.A.); R. v. Budic (1977) 35 C.C.C. (2d) 272 (Alta S.C., App. Div.);
Reference Re R. v. Gorecki (No 1) (1976) 32 C.C.C. (2d) 129 (Ont. C.A.).
6 For an example of the dilemma, see R. v. Hughes (1978) 43 C.C.C. (2d) 97 (Alta S.C.,
T.D.).
7R. v. Pritchard(1836) 7 Car. & P.304, 173 E.R. 135 (Assizes); R. v. Dyson (1831)7 Car.
& P. 304, 173 E.R. 135 (Assizes).
8 See Ryan, supra, note 4; Del Buono, Mental Disorder A Crime (1976) 18 Can. J. of
Crim. and Corr. 302; Lindsay, Fitness to Stand Trial in Canada: An Overview in Light ofthe
Recommendations of the Law Reform Commission of Canada (1977) 19 Crim. L.Q. 303;
Slovenko, Competency to Stand Trial: The Reality Behind the Fiction (1971) 8 Wake Forest
L. Rev. 1; Note, Incompetency to Stand Trial (1967) 81 Harv. L. Rev. 454.
1982]
AN ETHICAL PERSPECTIVE
Law Reform Commission of Canada to say that “all legal commentators and
committees agree that substantial change and revision is necessary”.9
As well as causing substantive problems, misunderstanding as to the
rationale and scope of the rule has given rise to unresolved disparities of view
with respect to the nature of the burden of proof and upon whom it lies.’ 0
Although the confusion which apparently exists must add further strain to
the decision-making processes of the lawyer, it is not the intention of this
paper to address these doctrinal and procedural aspects of the concept of
fitness.
There are a variety of premises upon which different jurisdictions base
the applicability of insanity as a defence.” In Canada, its elements are
codified in s. 16 of the Criminal Code and have been the subject of much
discussion by the judiciary 2 and learned commentators.’ 3 Moreover, the
question of reform and the general issue of the propriety of insanity as a
defence have been the source of much consideration and controversy.’ 4 The
scope of this paper does not require, or permit, a further substantive
discussion of insanity. The treatment of the ethical problems related to the
defence of insanity assumes that a person cannot be convicted of”an offence
in respect of an act or omission… while he was insane” and that “insanity” is
defined as set out in ss. 16(2) and (3) of the Code. Part VII is restricted to the
ethical snares which often accompany decisions as to the availability and
appropriateness of the defence of insanity.
Raising mental state issues for consideration by trial courts necessarily
involves the use of psychiatric testimony. There are a number of evidentiary
9 Law Reform Commission of Canada, The Criminal Process and Mental Disorder (1975)
[Working Paper 14], 32.
10 See R. v. Roberts, supra, note 5; R. v. Waltucky, supra, note 5; R. v. Budic, supra,
note 5. But cf. R. v. Hughes, supra, note 6 and R. v. Podola [1960] 1 Q.B. 325 (C.C.A.).
I IThe English and Canadian formulations of insanity flow from the rules formulated in
M’Naghten’s Case(1843) 10 Cl. & Fin. 200,8 E.R. 718 (H.L.). Some Americanjurisdictions
have developed other tests following United States v. Currens 290 F. 2d 751 (3d Cir. 1961) or
Durham v. United States 214 F. 2d 862 (D.C. Cir. 1954) and U.S. v. Freeman 357 F. 2d 606
(2d Cir. 1966). For a general discussion, see M. Schiffer, Mental Disorder and the Criminal
Trial Process (1978), 144-52.
2See Cooper v. The Queen [1980] 1 S.C.R. 1149; R. v. Barnier [1980] 1 S.C.R. 1124;
1
Schwartz v. The Queen [1977] 1 S.C.R. 673; Rabey v. The Queen [1980] 2 S.C.R. 513.
13See Martin, Insanity as a Defence (1966) 8 Crim. L.Q. 240; Mewett, Section 16 and
“Wrong” (1976) 18 Crim. L.Q. 413; Verdun-Jones, The Insanity Defencesince Schwartzv.
The Queen: First Steps Along the Road Towards Rationalization of Canadian Policy?
(1979) 6 C.R. (3d) 300, and The Evolution of the Defences of Insanity and Automatism in
Canada from 1843 to 1979: A Saga of Judicial Reluctance to Sever the Umbilical Cord to
the Mother Country? (1979) 14 U.B.C. L. Rev. I; Shiffer, supra, note I1, 121-44.
14 See G. Morris, The Insanity Defense: A Blueprint for Legislative Reform (1975); A.
Goldstein, The Insanit’ Defense (1967); R. Arens, Insanity Defense (1974); Goldstein &
Katz, Abolish the ‘Insanity Defense’- Why Not? (1963) 72 Yale L.J. 853.
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issues which arise in this context 5 and present factors which affect lawyers’
decisions. Given the ethical perspective discussed in this paper, it addresses
in Part V only the issue which bears most centrally on ethical and tactical
decisions: the confidentiality of communications and consultations with a
psychiatrist retained by defence counsel to assist in preparing, and perhaps
eventually establishing, the response to the charge.
By their nature, ethical problems do not always compel a single
answer-
let alone an easy one. Even an ethical issue which is specifically
and clearly addressed by a rule in a professional code involves the personal
decision as to whether conformity is appropriate in the circumstances. Of
course, the pressure to conform in clear cases is substantial. That does not,
however, negate the existence of personal discretion. The exercise of
discretion, unless the lawyer has chosen conformity as an a priori precept,
requires consideration of the stated norm in light of the lawyer’s view of what
ought to be. Parts I and II of this paper attempt to demonstrate that such
clearly stated norms are rare and usually exist in respect of duties which
relate to the regulatory aspect of professional conduct such that they are not
likely to evoke moral responses. More significant are the ethical problems
arising in circumstances not specifically addressed by the group code.
Absolute answers cannot be stipulated universally since individual cases
represent not only different factual contexts but also a different set of
participants bringing with them their various backgrounds, attitudes, goals
and values. The subjective process of determining what ought to be
constitutes the lawyer as a moral agent who unwillingly becomes a new
element in the ethical matrix in that his personal values, including a personal
conception of the lawyer’s role, become relevant. The intention of this paper
is to encourage discussion and provide a tentative framework for assessing
and resolving the ethical aspects of issues which so often trouble counsel who
act for a mentally ill accused. I have isolated the factors and variables which
I consider to be fundamental and have exposed my own characterizations
and value judgments 6 to scrutiny. In this way, I have attempted to develop a
“common vocabulary” to facilitate conscientious decision-making. 17
15 1For examples of the evidentiary problems which commonly arise, see Manning &
Mewett, Psychiatric Evidence (1976) 18 Crim. L.Q. 325; Ho, The Psychiatrist and the
Accused: Some Evidentiary Problems(1980) 38 U.T. Fac. L. Rev. 197; Schiffer, supra, note
1I, 189-224.
161 have used the compendious phrase “value judgment” as distinguished from “moral
judgment” to ensure that the discussion is not viewed from a purely moral perspective. A
value judgment merely declares what I recognize as valuable in that I desire it; a moral
judgment would require analysis of my value judgment on the basis of moral considerations.
17 The utility of publicly explaining one’s personal decision-making process in respect of
an ethical dilemma requiring personal judgment was suggested by Alderman, Three
Discussions of Legal Ethics (1977) 126 U. Pa. L. Rev. 452.
1982]
AN ETHICAL PERSPECTIVE
Throughout this paper, the word “ethics” is used in juxtaposition with a
number of modifying words: legal ethics, personal ethics, professional
ethics and institutional ethics. While these concepts may be distinguishable,
in whole or in part, they share a common element in that each one includes,
even if only at the aspirational level, at least the possibility of a “systematic
and disciplined critical analysis of moral arguments”.’ 8
I.
Institutional Ethics: The Professional Component
as a Source of Guidance
The phrase “institutional ethics” is used in contradistinction to personal
ethics. In the legal context, it refers to the group code of conduct emanating
from the institutions of the legal system. The primary source of institutional
ethics is the relevant code of professional responsibility promulgated by the
professional governing body. Traditionally, these codes were known as the
canons of ethics, a name which misleadingly gave the impression of a set of
principles established to resolve universal questions of ethical responsibility.
Contemporary codes of professional responsibility are essentially the rules
by which the legal profession defines the lawyer’s relationships with the
public, the legal system and the legal profession. Notwithstanding a
definitional format, these rules or duties are inherently regulatory in the
sense that they represent the governing body’s concern to maintain the image
and integrity of the profession as perceived by the dominant segment of the
bar. The foreword to the Professional Conduct Handbook of the Law
Society of Upper Canada states:
Public confidence in the administration of justice and in the legal profession may be
eroded by irresponsible conduct on the part of the individual lawyer. Accordingly, he
should endeavour to conduct himself at all times so as to reflect credit on the legal
profession, inspire the confidence, respect and trust of his clients and the community,
and should strive to avoid even the appearance of impropriety.’ 9
The preamble to the American Bar Association’s Code of Professional
Responsibility similarly reminds us that “it is the desire for the respect and
confidence of the members of his profession and of the society which he
serves that should provide to a lawyer the incentive for the highest possible
degree of ethical conduct”.20 In formulating rules of professional conduct,
the role of the controlling group within the profession extends to injecting its
prevailing norms as minimum standards for the rest of the profession. That
181 have adopted the definition of ethics used and expanded upon in Smurl, In the Public
Interest: The Precedents and Standards of a Lawyer’s Public Responsibility (1978) II
Indiana L. Rev. 797.
19 Law Society of Upper Canada, Professional Conduct Handbook (1978) [hereinafter
L.S.U.C. Handbook], i.
20 American Bar Foundation, Annotated Code of Professional Responsibility (1979), 2.
The Code was adopted by the American Bar Association on 12 August 1969 and was
effective I January 1970 [hereinafter the A.B.A. revision].
McGILL LAW JOURNAL
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the rules are intended to serve this function is clear from an examination of
the prefatory remarks to the revised codes of both the Canadian Bar
Association 2′ and the American Bar Association.22 The nature of the legal
profession’s codes of responsibility as they relate to the practices of different
lawyers has provoked one author to comment:
They mandate conformity, not goodness or right behaviour. They look like a moral
code but are really the descriptive ethic of never-never land. They do not constitute a
viable norm, but for most lawyers, are the standards of some other time and place.23
In other words, the norms are those of the dominant segment of the bar but
they are imposed on all lawyers notwithstanding distinctions in the modes of
practice, geographic locale, client characteristics and individual conceptions
of the role of the lawyer. In addition to this normative aspect, a major thrust
of any code will be regulatory, which is an inevitable requirement since the
lawyer practises pursuant to some form of officially sanctioned licence.24 To
this extent, the rules represent a “subspecies of legislation, having the
sanction of authority and the pragmatic value of protecting order and
autonomy”.25
Within the past dozen years, both the Canadian Bar Association 26 and
the American Bar Association 27 have substantially revised their respective
codes of professional responsibility. Generally, it is fair to suggest that the
impetus for revision arose from a changing social context. In the United
States, specific societal factors have been identified as precipitating change
and one may reasonably ask whether the existence of the same factors in
Canada, albeit to a lesser extent, provided similar motivation.
The major factor which we can isolate is the expression of the valid
criticism that the bar, as a professional organization within the legal system,
had not accepted responsibility for promoting the availability of legal
services to groups which traditionally had been denied access. After
conducting substantial empirical investigation in Chicago and New York
City, Carlin and Howard concluded that “lawyers systematically exclude
lower-class clients.., on the following considerations: low expectation of
financial gain, a desire to avoid a less prestigeful type of practice and
clientele, and perhaps, also, conceptions of what merits consideration in the
21 Canadian Bar Association, Code of Professional Conduct (1974) [hereinafter the
C.B.A. revision], vii-viii.
22 Supra, note 20, 2, which describes the canons as “statements of axiomatic norms,
expressing in general terms the standards of professional conduct expected of lawyers”.
23 Schuchman, Ethics and Legal Ethics: The Propriety of the Canons as a Group Moral
Code (1968) 37 George Wash. L. Rev. 244, 249.
24 In Ontario, see Law Society Act, R.S.O. 1980, c. 233, ss. 50, 62-3.
2 G. Hazard, Ethics in the Practice of Law (1978), 2.
26 Supra, note 21.
27 Supra, note 20.
1982]
AN ETHICAL PERSPECTIVE
legal arena”. 28 Clearly, the pre-existing canons of ethics did not encourage
increased accessibility. However, the American Bar Association canons
went further in discouraging increased access by prohibiting a facilitating
role by lay intermediaries. 29 Again, the introductions to the 1974 C.B.A.
revision 30 and the 1970 A.B.A. revision 31 reflect a concern “to meet this need
for legal services”.
institutional areas of legal practice
While the problem of access to justice presented a significant incentive
for change in institutional ethics, it also produced corollary concerns for the
organized bar in the United States. Lawyers who found themselves excluded
from the prestigious large law firms and the successful medium-sized firms
by reason of racial, ethnic, religious, social and educational background 32
were drawn as sole practitioners to poor and low income communities. 33
The movement to practices within low income communities involved more
than just a matter of geography. Large firms controlled the corporate,
their
commercial and
specialization, resources and existing client base. Thus, the sole practitioner
was compelled to work in areas usually characterized by the infrequent
occurrence of single problems such as family law, criminal law, real estate
the sole
transactions and some aspects of civil
lawyer-client
practitioner could not expect
relationships to maintain a practice, more aggressive methods of attracting
clients were employed than those used and accepted by the large firms. 34
including the use of advertising and
Aggressive client solicitation,
intermediaries, represented a double-edged threat to the organized bar. It
tended to derogate from the autonomous, aloof image of the lawyer as a
professional which the traditional bar had fostered and enjoyed while also
posing a potential threat to the financial advantage held by the established
law firms. It is not suprising that prior to the 1970 A.B.A. revision this group
of lawyers was the subject of substantial criticism for “unethical” conduct. 35
Although one might argue that the sole practitioners were an illusory foe in
the sense that their strength was insufficient to depose the dominant segment
of the bar, the atavistic influence of self-preservation on the 1970 A.B.A.
the security of ongoing
through
litigation. Because
28 Carlin & Howard, Legal Representation and Class Justice (1965) 12 U.C.L.A. L. Rev.
38 1, 428. See also J. Carlin, Lawyers on Their Own; A Study of Individual Practitioners in
Chicago (1962), and Lawyers Ethics; A Study of the New York City Bar (1966).
29 See Cheatham, Availability of Legal Services: The Responsibility of the Individual
Lawyer and of the Organized Bar (1965) 12 U.C.L.A. L. Rev. 438, 449-50.
30Supra, note 21, vii.
3 1 Supra, note 20, 1.
32 See Ladinsky, The Impact of Social Backgrounds of Lawyers on Law Practise and the
Law (1963) 16 J. Legal Ed. 127; J. Auerbach, Unequal Justice: Lawyers and Social Change
in Modern Amercia (1976).
33 See Carlin & Howard, supra, note 28.
34See Ladinsky, supra, note 32, 140-1.
35 See Note, Legal Ethics and Professionalism (1970) 79 Yale L.J. 1179, 1180-3.
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revision has been noted by a number of critics 36 who have suggested that the
new Code subordinates the interests of the client and the public generally to
the individual and collective self-interest of the legal profession.37 From the
more pointed perspective of the self-interest of the dominant segment of the
bar, it has been said that:
[those] in control of the legal profession at any point in time will be sorely tempted to
use the code of ethics as a weapon to perpetuate their position of control, or to prevent
even small shifts in the balance of power within the profession.38
The actual degree of influence is inconsequential. It is significant, however,
that to some extent the code of ethics represents a tool of control, the exercise
of which is not always guided by concerns for the public interest. While
speaking the expansive language of increasing access to justice, the 1970
A.B.A revision clutched at the status quo by offering impediments to group
legal services and by refusing to liberalize its advertising edicts. 39
Another factor relevant to the changing social context was the
development of new modes of delivering legal services40 arising not only
from concerns over access to justice but also from evolving conceptions of
the role of the lawyer directly attributable to the heightened social conscience
of the 1960s. The growth of public interest law represented, within a segment
of the community of lawyers, a marriage between social concern and the
attraction of social activism. Changing conceptions of the role of the lawyer
were functional responses to the “newly emergent and valid understanding of
the need to protect all members of society in their relatively passive capacity
as citizens who consume not only material goods and services but also
governmental policies and programs”. 4′ If the traditional bar with its
meritocracy and hierarchy fit Charles Reich’s 42 description of CON-
SCIOUSNESS II, then the new public-interest lawyer of the 1960s
represented a movement within the legal profession to CONSCIOUSNESS
III where the lawyer perceived a society
that is unjust to its poor and its minorities, is run for the benefit of a privileged few, is
lacking in its proclaimed liberty, is ugly and artificial, that destroys environment and
self…, that is deeply untruthful and hypocritical.43
36 See Auerbach, supra, note 32; Note, supra, note 35; Morgan, The Evolving Concept of
Professional Responsibility (1977) 90 Harv. L. Rev. 702; Flynn, Professional Ethics and the
Lawyer’s Duty to Self[1976] Wash. U.L.Q. 429.
37See Morgan, ibid., 704-6; Schuchman, supra, note 23.
38 Note, supra, note 35, 1187.
39See Auerbach, supra, note 32, 286-8; Note, supra, note 35, 1184-6.
4o See generally Cahn & Cahn, Power to the People or the Profession? – The Public
Interest in Public Interest Law (1970) 79 Yale L.J. 1005, 1016-37; Note, The New Public
Interest Lawyers (1970) 79 Yale L.J. 1069; Ontario: Ministry of the Attorney-General,
Report of the Task Force on Legal Aid (1974) [hereinafter the Osler Report], 5 1-65.
41 Cahn & Cahn, ibid., 1006.
42 C. Reich, The Greening of America (1970).
43 Ibid., 246.
1982]
AN ETHICAL PERSPECTIVE
If the sole practitioner was viewed as a threat to the prevailing order, one can
imagine the reactions of the organized bar to lawyers who determined their
loyalties to clients not on the basis of financial relationships but solely on
whether the client or his problem came within the lawyer’s ardently described
area of interest. The area may have been defined geographically in the sense
of the set of legal and social problems experienced by a particular
community. Alternatively, the area may have been defined conceptually as
with environmental law, welfare law, consumer-protection law, prison law,
workers’ compensation, and occupational health and safety law. The areas
of interest shared common features in that they had been virtually ignored by
the traditional bar and their respective plaintiffs were characterized by both
material and political impotence. The affinity between lawyers and clients
around a common cause engendered intimate relationships which were
clearly distinguishable from the traditional lawyer-client relationship. To
develop mutual support, new organized groupings of lawyers emerged
around specific areas or communities of interest and older organizations
the National Lawyers Guild were
with activist histories such as
rejuvenated.44 These factors combined in the ferment of social and political
activism to encourage zealous advocacy leading naturally to a politicized
role for some lawyers. Within the ethos of the decade, the political nature of
various conspiracy prosecutions45 and the political character of the accused
compelled a politicized approach by which the lawyer subordinated his views
entirely to the instructions of the accused on all tactical matters.46 As a
result, contempt citations and disciplinary proceedings were common.47
Strident cries for stricter regulation of advocates by professional governing
bodies came from sources as highly placed as Chief Justice Burger.48 Even
44See M. James, The People’s Lawyers (1973), xvi-xix.
45 By 1968 the political use of conspiracy indictments in response to the anti-war
movement resulted in the prosecution of Dr Benjamin Spock, William Sloane Coffin,
Marcus Raskin, Michael Ferber and Mitchell Goodman in New York, and the Catonsville
Nine (including Ted and Daniel Berrigan, the activist Roman Catholic priests) in Maryland.
See N. Cantor, The Age of Dissent (1969), 283-8.
However, it was the trial of the Chicago Eight in 1969 which most dramatically illustrated
the political decision to utilize the courts to repress dissent. See James, supra, note 44, 10 1-5,
in which Morton Stavis is quoted as saying that “one of the chief signals that the Nixon
administration intended to change the role of the courts was the Chicago Indictments, issued
but two months after Attorney GeneralJohn Mitchell took office, the object being to rewrite
the history contained in the Walker Report”. To appreciate the historical significance of the
trial of the Chicago Eight, see J. Epstein, The Great Conspiracy Trial: An Essay on Law,
Liberty and the Constitution (1970); A. Kinoy et al., Conspiracy on Appeal: Appellate Brief
on Behalf of the Chicago Eight Center for Constitutional Rights (1971).
46See William Kunstler’s comments on the conduct of the Chicago Eight trial in an
interview in (1970) 17 (No. 10) Playboy 71, 76.
47 See Auerbach, supra, note 32, 288-92; Beil, Controlling Lawyers by Bar Associations
and Courts (1970) 5 Harv. C.R.-C.L. L. Rev. 301.
48See M. Freednan, Lawyers’ Ethics in an Adversary System (1975), 14-5; Auerbach,
supra, note 32, 289.
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the legal-services programme of the Office of Economic Opportunity, an
agency committed
to improving accessibility to justice and already
endangered by attacks from the Nixon administration, was further disabled
by the American Bar Association’s insistence that its lawyers conform with
traditional modes of advocacy. 49 Again, one can only speculate about the
actual degree of influence exerted by the bar’s preoccupation with
courtroom decorum, new styles of advocacy and radical lawyers. Whatever
the extent of its influence, the existence and activity of a repressive element
within the organized bar of the United States prompted Auerbach to
conclude that “[by] 1970 it was once again professionally and legally
dangerous to be a lawyer representing the poor, minorities and the politically
unpopular”50
The 1974 C.B.A. revision has not been subjected to the same assiduous
scrutiny and blunt criticism as its American counterpart. The Canadian Bar
Association is a professional association not a governing body. Accordingly,
its Code has no officially binding status but its tenets have been adopted in
Ontario and incorporated into the Law Society of Upper Canada’s
Professional Conduct Handbook.5′
If collective preservation and
maintenance of the lawyer’s traditional image as the objective, discreet
counsellor were influential factors in the United States, similar conclusions
about the motives underlying the 1974 C.B.A. revision would be relevant in
assessing its scope as a source of guidance in addressing the ethical problems
posed in this paper.
Looking back to the years immediately preceding the C.B.A. revision,
we find a similar recognition of the need to increase the availability of legal
services.52 By the early 1970s, a number of community legal clinics had been
established.5 3 Some encountered opposition from
law
associations which perceived the new vehicles as a threat to the material
interest of the local bar.5 4 These fears made little sense to the lawyers, law
local county
(1974) 59 Cornell L. Rev. 960, 965-7.
49See Auerbach, supra, note 32, 297-9; Scheindlin, Legal Services- Past and Present
50 Auerbach, supra, note 32, 289.
51 See (1975) 9 L.S.U.C. Gazette 256.
52Taman, The Legal Services Controversy: An Examination of the Evidence [J A Studt’
Prepared for the Office of the National Council of Welfare (1971).
53 See Zemans, Legal Aid and LegalAdvice in Canada: An Overview ofthe Last Decade in
Quebec, Saskatchewan and Ontario (1978) 16 Osgoode Hall L.J. 663; Brooke, Legal
Services in Canada (1977) 40 M.L.R. 533, 53643.
4 See Parkdale Community Legal Services, Submission to the Commission on Clinical
Funding(1978), 10-2 and appendices; Clinical Law Committee of the University of Windsor
Faculty of Law, Submission to the Clinic Funding Committee on the Reference Regarding
University-Based Clinics (1980), 2. These comments conform with the author’s observations
during the incipient stages of the development of a neighbourhood clinic by the Faculty of
Law, University of Western Ontario in 1970.
1982]
AN ETHICAL PERSPECTIVE
students and supporters of community clinics who realized that their
attention was directed to needs previously ignored by the traditional bar in
areas of law which were essentially non-remunerative. One cannot assume
that these unfounded local concerns 55 had much impact particularly when
one considers that the projects went ahead with the approval of the
governing bodies. In Ontario, for example, where the governing body has
statutory control over legal aid56, the Ontario Legal Aid Plan became the
financial benefactor and the engine for development of community legal
clinics. 57 However, while the new Code includes a statement of the bar’s
it is accompanied by the
responsibility for access to legal services,
conservative qualification that the methods employed be “compatible with
independence and effectiveness of the profession.” 58
the
Interestingly, the C.B.A. commentary to this rule is restricted to matters of
advertising, self-promotion and referrals developed in greater detail in the
Professional Conduct Handbook of the Law Society of Upper Canada.5 9 In
a subsequent rule dealing with the lawyer’s obligation to participate in the
profession’s activities, the accompanying C.B.A. commentary explains that
this includes such activities as law reform, continuing legal education, legal-
aid programs and community legal service.60 When this rule was adopted
into Ontario’s Professional Conduct Handbook, the explanatory reference
which specifically related professional responsibility to issues of delivering
legal services was conspicuously not included.
integrity,
From the perspective of concerns about new conceptions of the role of
the lawyer, particularly a politicized role, there appears to be no evidence of a
process of criticism, discipline and sanction analogous to what occurred in
the United States. One need not necessarily conclude that the Canadian bar
adhered to a different ideology than its American colleagues. The more
accurate conclusion likely flows from the substantial differences in the
degree and intensity of participation in social and political activism generally
throughout Canada. Left-wing lawyers were insulated from dramatic
confrontations due to the absence of politically motivated “show” trials. 6′ If
the bar was looking for a relationship between social unrest and changing
55S. Grange, Report of the Commission on Clinical Funding (1978), 8-10. This
conclusion is also implicit in the findings and recommendations of the Osler Report, supra,
note 40.
56 Legal Aid Act, R.S.O. 1980, c. 234.
57 R.R.O. 1980, Reg. 575, ss. 148-59, originally enacted as 0. Reg. 160/76 which was
substantially revised by 0. Reg. 391/79 as a result of the recommendations of Mr Justice
Grange, supra, note 55.
58 C.B.A. revision, supra, note 21, 51.
59Ibid., 51-5; L.S.U.C. Handbook, supra, note 19, 38, Rule 13 and commentary.
60 C.B.A. Code, 56-7.
61 The emphasis here is on the phrase “show” trial. Clearly, the War Measures Act, R.S.C.
1952, c. 288, am. S.C. 1960, c. 44, s. 6, effected as of 15 October 1970 by proclamation under
the authority of the Governor in Council that “apprehended insurrection exists and has
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conceptions of the lawyer’s role, it is significant that an alternative
association for left-wing lawyers was not established until 1974 when the
passions of social activism had already waned.62 It is clear, however, that the
drafters of the new Code appreciated that the members of the profession
would no longer consist solely of conventional lawyers but would include “a
new breed of young lawyers, some of whom were determined to use law to
change society”.63
In response to whether the new Code was intended to inhibit or
encourage reformist activity on the part of lawyers, Professor Arthurs noted
the “contrapuntal, sometimes contradictory” manner in which the ideas of
reform and respect are addressed. 64 He commented:
There is in all of this an implicit assumption, occasionally made explicit, that the lawyer
is both more and less than any other citizen. He is more in that he has affirmative
obligations to seek reforms; he is less in that he is inhibited in the means he can use in aid
of the causes he supports. 65
Thus, while it would be inappropriate to impute the same consciously
repressive motives to the C.B.A. revision, one can conclude that it is tainted
with a conservative view of the lawyer’s role and a concern to maintain a
public image which reflects that role.
Notwithstanding concerns about some of the factors which may have
influenced the 1974 C.B.A. revision, its content is significant particularly
when viewed from an evolutionary perspective starting with its predecessor,
existed” S.O.R./70-443, and its corollary, the Public Order (Temporary Measures) Act,
1970, S.C. 1970-71-72, c. 2, resulted in a number of prosecutions in Quebec which were
blatantly political in nature. However, as an interested observer, the author has concluded
that the ostensibly legalistic tenor of the ensuing trials precludes the label of”show” trials. It
should be noted that a number of contempt citations did result. See Marx, The
“Apprehended Insurrection” of October 1970 and the Judicial Function (1972) 7 U.B.C. L.
Rev. 55; R. v. VaiiNres (No. 2) and Gagnon (1973) 17 C.C.C. (2d) 361 (Qu6. C.A.); R. v.
Larue-Langlois (1970) 14 C.R.N.S. 68 (Qu6. Sess.). For further discussion of the October
1970 crisis, see McNaught, “Political Trials and the Canadian Political Tradition” in M.
Friedland, Courts & Trials: A Multidisciplinary Approach (1975) 137, 155-7; T. Berger,
Fragile Freedoms: Human Rights and Dissent in Canada (1981), 190-218.
As an example of a political trial in Canada which the author would characterize as a “show
trial”, see the trial of Tim Buck and seven other members of the Communist Party pursuant
to s. 98 of the Criminal Code(“unlawful association”) enacted by S.C. 1919, c. 46, s. 1. While
the report of the appeal, R. v. Buck (1932) 57 C.C.C. 290 (Ont. C.A.), reflects the nature and
conduct of the prosecution, a more dramatic description can be found in T. Buck, Yours in
the Struggle: Reminiscences of Tim Buck (1977), 162-94.
62The Law Union of Ontario had its founding meeting at Hart House, University of
Toronto in May 1974.
63 Arthurs, Barristers and Barricades: Prospects for the Lawyer as a Reformer (1976) 15
U.W.O. L. Rev. 59, 64. Prof. Arthurs was a member of the C.B.A.’s Special Committee of
Legal Ethics, which was responsible for the 1974 revision of the C.B.A. Code.
64Ibid.
65 Ibid., 65.
1982]
AN ETHICAL PERSPECTIVE
the 1920 Code of Legal Ethics. The 1920 document has been described as
“the essence of innocuity”, cast in language which was “platitudinous,
archaic, and sometimes contradictory”. 66 The revised Code represents an
attempt to describe the lawyer’s role and relationships in a contemporary
context, albeit vaguely defined. More helpful, however, than the re-designed
rules are the commentary and notes which accompany them. The notes
include cross-references to other codes of conduct but also refer to judicial
authorities which bear on various issues of propriety. In this way the 1974
C.B.A. revision and the 1978 L.S.U.C. Professional Conduct Handbook,
which has further developed the commentary and notes, recognize the
judicial component of institutional ethics. Many situations which have
escaped the scrutiny of governing bodies either accidentally or intentionally
have arisen within the course of litigation and have attracted either criticism
or approval from the judiciary. Given the obvious relationship between the
professional governing bodies and the process of justice and in light of the
judiciary’s role within that process, one can argue that conduct which
receives positive judicial approval must necessarily be acceptable to the bar.
Hence, this suggests that the judicial component is the paramount aspect of
institutional ethics. This is surely the case in Ontario where disciplinary
proceedings against members of the bar based on allegations of
“professional misconduct or of conduct unbecoming a barrister” 67 give rise
ultimately to a right of appeal on the merits to the Divisional Court.68
From the foregoing brief discussion, we can posit a number of
conclusions about the nature of professional codes of conduct which will
assist in appreciating their limitations in respect of the ethical problems
raised in this paper. First, because a code attempts to articulate group
norms, the expression of particular rules or the description of particular
relationships will be cast in vague and safe language. Secondly, a code will
represent the norms of the dominant segment of the bar which may not have
direct applicability to the various modes and contexts in which lawyers
practise. Thirdly, a code will be an essentially conservative document written
with the goal of maintaining the authority and status of the dominant
66 Ibid., 63.
67 Law Society Act, R.S.O. 1980, c. 233, s. 34, discussed in Re Cwinn and Law Society of
Upper Canada (1980) 28 O.R. (2d) 61, 63-7 (Div. Ct) per CraigJ. and in Arthurs, Authority,
Accountability and Democracy in the Government of the Ontario Legal Profession (1971)
49 Can. Bar Rev. 1, 4-6.
68 Law Society Act, R.S.O. 1980, c. 233, s. 44, the scope of which is discussed in Re Stoangi
and Last Society of Upper Canada (No. 2) (1979) 25 O.R. (2d) 257, 267 (Div. Ct) per
Griffiths J. Of course, this appellate jurisdiction co-exists with the general supervisory
jurisdiction of judicial review in respect of decisions of inferior tribunals on jurisdictional
or procedural grounds. However, it should be noted that relief in the nature of certiorariis a
discretionary remedy the consideration of which will include the question of alternative
remedies.
McGILL LAW JOURNAL
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segment of the profession and will include a number of internal regulatory
rules intended to promote that goal. Fourthly, a code will reflect concern to
preserve the traditional public image of the lawyer as the trusted, aloof,
discreet counsellor and vigorously partisan advocate. Lastly, while a code
will describe a range of duties, it will not provide any indication of
paramountcy or a scheme of priorities.
II. The Lawyer’s Duties and the Ideology of Advocacy
The two predominant duties articulated in the 1974 C.B.A. revision as
adopted in Ontario are the duty to one’s client and the duty to the court.
With respect to clients, the lawyer is required to pursue their best interests
vigourously, to advance “fearlessly” all defences available at law and to ask
every pertinent question.69 A lawyer cannot abandon or waive a client’s
rights, for example an available defence, without the client’s informed
approval.70 Of course, one is subject to certain restraints in that the
obligation does not extend to involvement
in criminal or unethical
conduct. 7′ Furthermore, if the instructions appear to be unreasonable, the
lawyer is entitled, and perhaps in some circumstances even required, to
withdraw from the case. 72 Throughout, the lawyer is bound to keep
confidential all information and documents obtained within the context of a
solicitor-client relationship unless instructed by the client to communicate or
disclose the privileged material.73
The lawyer’s duty to the court is essentially an obligation of respect and
candour. The advocate is expected to comply with the rules of court and the
contemporary standard of decorum. This duty has been described by Lord
Diplock:
To say of a barrister that he owes a duty to the court, or to justice as an abstraction, to
act in a particular way in particular circumstances may seem to be no more than a
pretentious way of saying that when a barrister is taking part in litigation he must
observe the rules… . A barrister must not wilfully mislead the court as to the law nor
may he actively mislead the court as to the facts; although, consistently with the rule
that the prosecution must prove its case, he may passively stand by and watch the court
being misled by reason of its failure to ascertain facts that are within the barrister’s
knowledge.74
Recognizing that conflicts may arise between instructions from a client and
the lawyer’s duty to the court, there is significant authority, at least in the
69 L.S.U.C. Handbook, supra, note 19, 20, Rule 8 and commentary.
7o Ibid., 22.
71 Ibid., 20-I.
72Ibid., 31-5, Rule II and commentary.
73Ibid., 7-8, Rule 4 and commentary.
74 Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198, 219-20 (H.L.).
1982]
AN ETHICAL PERSPECTIVE
English context, to suggest that the paramount duty is that owed to the
court.75 In the words of Lord Reid in Rondel v. Worsley:
Every counsel has a duty to his client fearlessly to raise every issue, advance every
argument, and ask every question, however distasteful, which he thinks will help his
client’s case. But, as an officer of the court concerned in the administration ofjustice, he
has an overriding duty to the court to the standards of his profession, and to the public,
which may and often does lead to a conflict with his client’s wishes or with what the
client thinks are his personal interests.76
However, there are clear distinctions between the barrister’s status in
England, where the legal profession is -plit, and in Canada where the unified
professional structure blends the roles of barrister and solicitor.77 In
England, the barrister is retained by a solicitor and not directly by the client.
With the exception of “dock brief’ situations, as in Rondel v. Worsley, the
barrister does not enter into a contractual relationship with the client. 78 This
fundamental difference may cast doubt on the applicability in Canada of
Lord Reid’s clear statement of paramountcy.
Regardless of the question of paramountcy, the scopes of these duties are
determined by sources external to the lawyer if we view them as discrete
obligations without reference to any other applicable obligations. The
responsibility to a client is defined by the scope of instructions and the extent
of the retainer; the responsibility to the court is determined by the court
through its rule-making function and its power to control its process. There
are other operative duties, however, which can be defined only by the
individual lawyer as an autonomous agent who makes choices and
judgments. I am referring to duties owed to justice and to the community. If
one assumes that all citizens have, or should have, these responsibilities,
surely the lawyer cannot be exempted. It is even more appropriate to expect
a greater sensitivity to these obligations from one who has chosen to
participate professionally in the community’s justice system by making
75 Rondelv. Worsle’ [ 1969] 1 A.C. 191,227 (H.L.) per Lord Reid, 251 per Lord Morris of
Borth-y-Gest, 271 per Lord Pearce, 283 per Lord Upjohn, affg [1967] 1 Q.B. 443,493-506
(C.A.) per Lord Denning M.R.; Saif Ali v. Mitchell, ibid., 219 per Lord Diplock.
76 Ibid., 227.
77 For a critical discussion of the “divided profession” in England, see M. Zander,
Law vers and the Public Interest: A stud)’ in restrictive practices (1968), 270-332.
7 8 See Demarco v. Ungaro (1979) 21 O.R. (2d) 673, 676-7 (H.C.) per Krever J. This case
raised the issue of a barrister’s alleged immunity from negligence actions in Ontario. Mr
Justice Krever pointed out a further and somewhat surprising distinction in the same
passage, that “in England a barrister is not thought to be strictly an officer of the Court
although a solicitor is”. This case provided an opportunity for Krever J. to question the
English view of relative priority given to the duty owed to the Court but he refrained from
doing so; rather, he addressed the issue of whether the same public interest implications
which were persuasive in Rondel v. Worsley, supra, note 75, prevailed in Ontario. He
concluded that they were not and that barristers enjoyed no immunity in respect of their
conduct within the litigious process.
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available his access to that system for a fee or salary. In any event, the
applicability of these duties cannot reasonably be disputed by anyone who
accepts that promoting justice and furthering the shared interests of a
community are important features of a society. However, recognition of the
duties to justice and the community necessarily brings into play individual
definitions, perceptions and conceptions which may not conform with the
commonly held or traditionally held views.
From the perspective of institutional ethics, a duty to justice appears to
have been subsumed under the duty to the court by equating justice with the
administration of justice.79 By administration of justice, I mean the
institutional machinery or system established to administer laws and resolve
legal disputes within a society in order to achieve justice. The concept of
justice can be explained within a social context as “the way in which the
major social institutions distribute fundamental rights and duties and
determine the division of advantages from social co-operation”. 80 To equate
justice with the administration of justice is to ignore the distinction between
means and ends. The result is not only formalistic but discourages serious
consideration of justice and thereby reduces the likelihood of achieving
justice other than in a procedural sense.
The equation of justice with the administration ofjustice is analogous to
the way in which the duty to the community was characterized in the 1920
79See L.S.U.C. Handbook, supra, note 19,36-7, Rule 12 and commentary. The equation
of justice with the administration of justice for the purpose of determining the scope and
nature of the lawyer’s obligations can be discerned from a number of judgments in which
professional conduct was in issue. See, e.g., Lord Diplock’s comments in SaifAli, supra,
note 74. Myers v. Elman [1940] A.C. 282 (H.L.) asserts the propriety of ordering costs
against a solicitor personally in respect of a deliberately incomplete affidavit on production.
The solicitor’s breach of duty was described as “conduct which involves a failure on the part
of a solicitor to fulfill his duty to aid in promoting in his own sphere the cause ofjustice,” 319
per Lord Wright [emphasis added]. Notwithstanding the inclusion of an ostensible duty to
promote justice, the application of this duty in subsequent cases has been restricted
conspicuously to matters relating to the lawyer’s duty to the court and the administration of
justice. See Edivards v. Edwards [1958] 2 All E.R. 179 (Div. Ct); Currie v. The Law Societ’
[1977] Q.B. 990; Sonntag v. Sonntag (1979) 24 O.R. (2d) 473 (S.C.); Fraser River
Contracting Ltd v. F. W.P. Contracting Ltd [1978] 2 W.W.R. 355 (B.C.S.C.); R. v. Clarke
(1981) 62 C.C.C. (2d) 442 (Alta C.A.). See also Miller, The Advocate’s DutY to Justice:
Where Does it Belong? (1981) 97 L.Q.R. 127, implicit in which is the equation of the
barrister’s duty to justice with a duty to the administration of justice resulting in Miller’s
submission that the duty to justice be elevated to the “sphere of adjectival law” by
transforming it into rules of civil and criminal procedure.
80J. Rawls, A Theory of Justice (1971), 7. I have not chosen this definition to suggest it is
necessarily authoritative but because it succinctly expresses the link between the distributive
aspect of justice and social institutions. For a discussion of Rawls, see R. Dworkin, Taking
Rights Seriously (1977), 150-83.
1982)
AN ETHICAL PERSPECTIVE
Code as a duty to the State.8′ Perhaps the deletion of a reference to the State
in the 1974 revision reflects the recognition that the State and the
community are not congruent concepts and that the State does not always
act in the best interests of the community. Regrettably, the C.B.A. revision
has not gone the further step of attempting to encourage an obligation to the
community. A concept of community must reflect the values and social
institutions considered to be central to the evolution of the community’s best
interests. Accepting that justice entails a distribution of rights across the
range of social institutions, the end product of that distribution will vary
depending on the prevailing view of the ideal form of social and economic
order which determines the structuring of social institutions. One can only
be comfortable with the products that flow from a system of justice if one
agrees with the ordering of values upon which the system is premised.
But why should a body representing
the legal profession, while
purporting to espouse rules to promote responsible conduct by lawyers, shy
away from discussing a duty to justice and a duty to the community as
discrete duties? The answer must lie in a reluctance to encourage the
development of responses based on personal values and norms the
manifestations of which may be antithetical to the interests of the dominant
segment of the bar- which likely also constitutes an aspect of the dominant
segment of the community at large. If it is accurate to conclude that a
function of professional codes of conduct is to discourage the exercise of
personal ethical judgments, this conclusion is consistent with Simon’s
analysis in his impressive article The Ideology of Advocacy: Procedural
Justice and Professional Ethics.82
Simon characterizes professional codes of conduct as a formal
expression of the prevailing “ideology of advocacy” –
the framework within
which lawyers define their roles as participants in the legal process. He
explains that the existing “ideology of advocacy” is premised on the basic
principles of procedural justice and professionalism 83 from which two
guiding principles of conduct and attitude evolve: neutrality and
partisanship. Neutrality demands that the lawyer “remain detached from his
client’s ends” 84 while partisanship requires concurrently “that the lawyer
work aggressively to advance his client’s ends”.85 Although this marriage of
separation and loyalty may appear to cast the lawyer in an almost
schizophrenic role, it may be that this expectation of role-differentiated
81 Canadian Bar Association, Canons of Legal Ethics (1920), Canon 1, in which it is stated
that the lawyer “owes a duty to the State, to maintain its integrity and its law and not to aid,
counsel or assist any man to act in any way contrary to those laws”.
82[1978] Wisc. L. Rev. 30.
83 Ibid., 36-9.
84 Ibid., 36.
85 Ibid.
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behaviour is endemic to any professional relationship in which the client or
patient seeks objectively exercised skills in a sphere that is foreign to him. 86 If
separation (neutrality) and loyalty (partisanship) are discontinuous, Simon
argues that the discontinuity affects the client and not the lawyer. The lawyer
has chosen to divorce his role from his own ends and disclaims responsibility
for the consequences of actions approved by the client. The client, however,
enters the process with desired ends but, while still required to accept
consequences, loses sight of his ends due to the deference paid to the views of
the lawyer. If the lawyer acted as an individual, the client could respond to
the lawyer’s opinions on that level and both participants would be required
to develop a common view of objectives since both would accept the
consequences. As a professional, the lawyer’s functional role within a
specialized procedural system which is foreign to the client’s social context
ensures deference to the lawyer’s views not because they are inherently
preferable but because they represent “the embodiment of a neutral
specialized discipline”. 87 To Simon, the purpose of the “ideology of
advocacy” is “to rationalize the most salient aspect of the lawyer’s peculiar
ethical orientation: his explicit refusal to be bound by personal and social
norms which he considers binding on others”.88
Simon subjects the “ideology of advocacy” to criticism from the
alternative perspectives of positivism, purposivism and ritualism as potential
rationalia for the role of the lawyer. He finds them unsatisfactory in that
each necessarily frustrates one of the ostensible norms of the “ideology of
advocacy” -autonomy,
responsibility and dignity:
Positivism promises to safeguard the autonomy of the individual. Yet, when the
individual’s autonomy is threatened, it thrusts him into a situation where he cannot
make rational choices and must submit to the will of his lawyer. Purposivism promises
to enhance social welfare by encouraging individual responsibility. Yet, at points of
stress, Purposivism exacerbates centrifugal tendencies by encouraging individuals to
regard values in a manner which strips them of their meaning and force. Finally,
Ritualism makes only the modest claim to ceremonially affirm individual dignity. Yet,
the ceremonies it prescribes turn out to be a mockery of individual dignity.89
Ultimately, he concludes that “the Ideology of Advocacy is incoherent in
theory and destructive in practice”. 90 In its place, he offers the “non-
professional advocate” who offers his or her skills to clients on the
understanding that personal commitments to moral and ideological percepts
will determine the lawyer’s response to any ethical problems which might
arise. Accordingly, the advocate is freed both from the restraint of the
86 See Wasserstrom, Lawyers as Professionals: Some Moral Issues (1975) 5 Human Rts 1.
87 Simon, supra, note 82, 116-7.
88 Ibid., 30.
89 Ibid., 114.
90 Ibid., 130.
1982]
AN ETHICAL PERSPECTIVE
client’s moral outlook and from the articulated group code of the profession.
In Simon’s words:
The foundation principle of non-professional advocacy is that the problems of
advocacy be treated as a matter of personal ethics…. [T]hey require that every moral
decision be made by the individual himself; no institution can define his obligations in
advance. [P]ersonal ethics require that individuals take responsibility for the
consequences of their decisions. They cannot defer to institutions with autonomous
ethical momentum.91
While this proposal may seem heretical to many, it should be noted that
Simon is not alone in his discounting of the value of professionalism 92 and
his desire that lawyers rely upon personal ethics.93
If we return to ethical problems associated with mentally-ill clients and
examine our own code for assistance, we note that it makes no specific
reference to the mentally-ill.93a The only expressly articulated rule which
applies directly to the ethical problems under consideration is the aspect of
the duty to one’s client which requires the lawyer to keep confidential all
lawyer-client
communications and material which arise within
relationship. To suggest that this rule must be the cornerstone for the
resolution of all ethical problems is to ignore the other duties owed by a
lawyer. For example, if maintaining the integrity of the substantive law is an
the
91 Ibid., 131.
92 See Wasserstrom, supra, note 86; Fried, The Lawyeras Friend The Moral Foundations
or the Lawyer-Client Relation (1976) 85 Yale L.J. 1060.
[1976] Wash. U.L.Q. 429.
93 See Alderman, supra, note 17; Flynn, Professional Ethics and the Lawyer’s Duty to Self
93aThe C.B.A. revision and the L.S.U.C. Handbook do not address the issue of a client’s
mental disability but the A.B.A. revision does deal generally with the problem in Rule EC7-
12 which states: “Any mental or physical condition of a client that renders him incapable of
making a considered judgment on his own behalf casts additional responsibilities upon his
lawyer. Where an incompetent is acting through a guardian or other legal representative, a
lawyer must look to such representative for those decisions which are normally the
prerogative of the client to make. If a client under disability has no legal representative, his
lawyer may be compelled in court proceedings to make decisions on behalf of the client. If
the client is capable of understanding the matter in question or of contributing to the
interests, regardless of whether he is legally disqualified from
advancement of his
performing certain acts, the lawyer should obtain from him all possible aid. If the disability
of a client and the lack of a legal representative compel the lawyer to make decisions for his
client the lawyer should consider all circumstances then prevailing and act with care to
safeguard and advance the interests of his client. But obviously a lawyer cannot perform any
act or make any decision which the law requires his client to perform or make, either acting
for himself if competent, or by a duly constituted representative if legally incompetent.”
While the law requires the client to plead, insanity is not a special plea but a defence and the
issue of fitness arises before pleadings are presented. Hence, the lawyer faced with
instructions and a client who disavows mental illness must make a personal assessment of the
client’s capacity in order to understand and respond in the light of “all circumstances”. This
rule provides no answer but at least encourages the kind of analysis of alternatives,
consequences and circumstances suggested in this paper.
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[Vol. 27
aspect of the undefined duties owed to the court or the administration of
justice, how should one react to the prospect of the conviction of a client
whom the lawyer believes to have been insane at the time of the offence? A
duty owed to a conception of justice may evoke serious concern about long-
term imprisonment in respect of an arguably insane client, or indefinite
psychiatric confinement due to a finding of unfitness in respect of a client
whom the lawyer believes to be innocent. The duty owed to the community
necessarily brings into play questions of potential dangerousness and future
consequences. While
is a serious
consideration in any situation, the failure of the code to define other duties in
a way which would make them useful and the absence of any scheme of
priorities between duties renders it ineffectual as a source of guidance to a
lawyer faced with these hard questions. This view is consistent with the
inherent structural limitations of a code of professional conduct suggested by
the conclusions offered in the previous section of this paper regarding the
nature and institutional function of professional codes. Moreover, if we can
characterize codes of conduct as expressions of the “ideology of advocacy” as
defined by Simon,94 their failure to provide assistance with hard questions is
reflective of the inadequacy of the “ideology of advocacy”.
the obligation of confidentiality
III. Ethical Problems and the Mentally-Ill Accused
I now turn to the consideration of the kinds of ethical problems which
can occur when acting for a mentally-ill accused and the factors which give
rise to them. The real source of the ethical problem is the difficulty presented
by the question of what is truly in a client’s best interests. Flowing from this
issue is the fundamental and often introspective question whether a lawyer is
capable of making an assessment of “best interests” in this context. Of
course, this determination must extend beyond personal observations and
consultation with one’s client. It would not be uncommon to make enquiries
of the accused’s family, friends or co-workers so long as they are conducted
discreetly and without breaching solicitor-client privilege. Moreover, it is
essential that the lawyer carefully consider psychiatric assessments and
recommendations which might involve the weighing of conflicting opinions.
When
including those
emanating from the accused, are consistent, the lawyer’s choices are easy. A
discordant view from the accused’s family may confuse the decision-making
process but the lawyer’s duty is owed to the accused and ultimate choices
must reflect that duty. The classic dilemma, however, arises when the voice
of dissent comes from the accused.
the observations, data and recommendations,
Most criminal lawyers have had the experience of being asked how they
can act for someone whom they know is guilty. The common response
94Simon, supra, note 82, 31.
1982]
AN ETHICAL PERSPECTIVE
usually combines the rhetorical question of whether one ever “really knows”
with an explanation of the Crown’s obligation to prove beyond a reasonable
doubt and the role of the trier of fact in determining ultimate issues. In other
words, the accused is entitled to make full answer and defence and the
lawyer, within ethical limits, takes instructions and assists with that defence
without prejudging guilt. The classic statement of this approach to
lawyering can be found in a conversation between Boswell and Johnson:
Boswell: “But what do you think of supporting a cause which you know to be bad”?
Johnson: “Sir, you do not know it to be good or bad till the judge determines it”.95
The idea of acting on instructions is essential to the traditional view of a
lawyer’s role. However, it is a fiction, albeit a useful one, to conclude that
lawyers never prejudge. This fiction may enable some to cross-examine
vigourously and to address juries with passion. Thinking individuals,
however, cannot help but make observations, draw inferences and reach
conclusions. For the criminal lawyer, the distinction lies in the simple,
traditional caveat that one does not act on personal conclusions but, rather,
one acts on instructions. This is merely a simplified reassertion of the duty
that one owes to one’s client flowing from the principles of neutrality and
partisanship.
The integrity of instructions and the operative fiction involved in leaving
all conclusions to the trier of fact cease to provide easy answers when acting
for the mentally-ill accused. At some stage, a suspicion about mental
disability may cause the lawyer to question, or even disregard, instructions
from the accused. The conflict between the lawyer’s personal conclusions
and the accused’s instructions represents the classic conflict between duties
which allows for no simple answer. Even armed with a psychiatric opinion,
the lawyer must recognize that, while reassuring, it is merely an opinion. On
the other hand, the perceived quality of the instructions are tainted
somewhat by the lawyer’s own views of the client’s mental disability. The
significance of resolving the conflict is obvious when one considers that the
choice of issues which will be put forward will likely affect the eventual
disposition of the case. Can the lawyer supercede the instructions of the
accused? If so, how much support must exist in order to justify acting in the
face of instructions? Alternatively, is withdrawal from the case required
when the accused’s perception of “best interests” differs from the lawyer’s?
These are the perplexing ethical questions.
It would be useful at this point to distinguish between tactical decisions
and ethical ones. Hard choices are not uncommon; many tactical problems
produce substantial anxiety. However, the tactical/ ethical distinction lies
9 5 Boswell’s Life of Samuel Johnson (1887), 47, quoted in Freedman, supra, note 48,51 in
the chapter entitled “What Does a Lawyer Really ‘Know’: The Epistemology of Legal
Ethics” which discusses “knowing” within the context of the A.B.A. revision, supra, note 20.
McGILL LAW JOURNAL
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not in the degree of anguish but rather in the nature of the two problems.
Tactical decisions require the weighing of consequences and the balancing of
risks in order to predict the outcome of a course of action. Ethical decisions
involve evaluating a course of action according to some set of norms or
precepts. They usually arise interstitially between conflicting duties which
attach to the lawyer’s role or from questions relating to the nature of the
lawyer’s role. When speaking of mental state issues, automatism and mental
disorder short of insanity provide helpful examples of difficult tactical
problems which may not include ethical components. As a result of
Rabey v. The Queen96 and particularly the subtle external/ internal cause
dichotomy,97 a defence based on non-insane automatism runs the risk that
the trier of fact may conclude that the causal factor is of internal origin so as
to constitute a disease of the mind resulting in a verdict of not guilty by
reason of insanity.98 Assuming that it is appropriate to adduce evidence of
mental disorder short of insanity to negative the requisite mens rea, and a
number of appellate courts have agreed with this proposition, 99 the accused
runs a similar risk. The expert psychiatric testimony called by the accused
may, particularly after cross-examination, provide a basis for leaving
insanity with the trier of fact. In light of the consequences of a verdict of not
guilty by reason of insanity, defence counsel and the accused are faced with a
difficult and risky choice which may lead to an unattractive, and perhaps
inordinate, result. Although it is impossible to accurately quantify risks, and
even recognizing that clients often look to their lawyers to make hard
choices, counsel can rely on the instructions of an informed, rational client.
It is the client who runs the risk and, therefore, is entitled to determine the
course to be taken. This is not to say that the process of advising one’s client
is easy but it represents a tactical dilemma, not an ethical one. The problem
may, however, take on an ethical dimension if the lawyer doubts the
accused’s ability to appreciate and assess the risks or if the client’s choice
appears to be so imprudent that to pursue it would conflict with the lawyer’s
perception of his or her duty to the accused. Absent a conflict between duties
or doubt as to the validity of the basis upon which instructions are given, the
problem remains a tactical one, regardless of the degree of anguish it
generates.
96Supra, note 12.
97 Ibid., 533-4 adopting this aspect of Martin J.A.’s judgment in R. v. Rabey (1977) 37
C.C.C. (2d) 461, 477-83 (Ont. C.A.).
98 For an example of these subtle distinctions and their inherent risks, see R. v. Revelle
(1979) 48 C.C.C. (2d) 267 (Ont. C.A.).
99 See R. v. Wright (1979) 48 C.C.C. (2d) 334 (Alta S.C., App. Div.); R. v. Meloche(1975)
34 C.C.C. (2d) 184 (Qu6. C.A.); Lechasseurv. The Queen (1978) 1 C.R. (3d) 190 (Qu6. C.A.);
R. v. Browning(1976) 34 C.C.C. (2d) 200 (Ont. C.A.); R. v. Milon(1977)34 C.C.C. (2d)206
(Ont. C.A.).
1982]
AN ETHICAL PERSPECTIVE
In this discussion, we are considering the conflicts between the lawyer’s
personal views and the accused’s instructions as they relate to the issues of
fitness to stand trial and insanity as provided by s. 16 of the Criminal Code.
Both issues, if raised, may result in indefinite commitment pursuant to a
Warrant of the Lieutenant-Governor. Hence,
lawyer’s personal
decision-making process must extend beyond a consideration of the weight
of the available evidence pointing to unfitness or insanity to include regard
for the impact of the consequences. Also, when assessing the quality of the
accused’s instructions, the lawyer must not only consider the accused’s
insight into the offence and his or her mental state but also the accused’s
ability to appreciate the nature of confinement pursuant to a Lieutenant-
Governor’s Warrant. 00
the
To formulate an analysis in the general context, it is necessary to define
the potential conflicts. First, we must consider the situation in which the
lawyer doubts the fitness of the accused to stand trial but the accused
disavows any mental disability. The second category relates to situations in
which the lawyer thinks that there is evidence suggesting insanity at the time
of the offence but the accused instructs the lawyer not to raise insanity. The
nature of the ethical issue in respect of the second category depends on the
accused’s mental state at the time of trial and the lawyer’s impressions in this
regard. Here, of course, we are considering an accused who has not been
found unfit to stand trial and one must note that a finding of fitness does not
rule out diseases of the mind’0′ including psychoses and psychopathy, even
accompanied by delusional behaviour. 02 Hence, an accused who is fit to
stand trial may still be characterized, both by legal and psychiatric criteria, as
insane and perhaps even potentially dangerous. At the same time, an
accused who may have been insane according to legal criteria at the time of
the offence may, by the time of trial, present defence counsel with a sane,
100 While the lawyer’s dilemma usually arises from a disavowal of mental disability on the
part of the accused, it is conceivable that the conflict may arise in the opposite sense if the
accused views a Lieutenant-Governor’s Warrant as preferable to a conviction. In a number
of jurisdictions in the United States, state legislatures have placed limits on the length of
permissible incarceration after a finding of unfitness. This development, following Jackson
v. Indiana 406 U.S. 715 (1971), has given rise to some concern over feigning incompetence in
order to avoid criminal sanctions. For a discussion of this issue, see, e.g., Wulach, The
Incompetence Plea: Abuses and Reforms (1980) J. of Psych. and Law 317, and the
references cited therein.
101 With respect to what may constitue a “disease of the mind” within the meaning of s. 16
of the Criminal Code, see Cooper v. The Queen, supra, note 12,1156-60perDicksonJ.; R. v.
Rabey, supra, note 97, 472-83 per Martin J.A., aff’d Rabey v. The Queen, supra, note 12.
But with respect to elements of “disease of the mind”, see the dissentingjudgment of Dickson
J. at supra, note 12, 522-53 as it relates to whether “the likelihood of recurrence” is a factor;
R. v. Simpson (1977) 35 C.C.C. (2d) 337, 347-56 (Ont. C.A.) per Martin J.A.
102 For examples of fit but delusional accuseds, see R. v. Trecroce, infra, note 182, and R.
v. Budic, supra, note 5.
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[Vol. 27
lucid and reasonable client who clearly appreciates the effect of a Lieutenant-
Governor’s Warrant and reasonably decides to risk conviction rather than
indefinite commitment. Clearly, the lawyer’s decision must be determined
with a view to the client’s mental state, or perceived mental state, at the time
instructions are given.
It should be apparent that the kinds of conflict set out above should only
arise after comprehensive psychiatric material has been obtained.
Furthermore, the decision whether to put forward an issue on behalf of a
client can only be a potential source of conflict when the psychiatric material
is solely in the possession and control of defence counsel. Although such
decisions may represent the more dramatic conflicts, a similar ethical
problem can arise even when the Crown pre-empts the programme by
raising the issues of fitness or insanity on its own initiative. Then, defence
counsel may have to decide whether he or she considers it appropriate to
follow instructions to contest the issue. Whether the Crown puts the
accused’s mental state into issue may depend on whether the Crown has
access
the control and
confidentiality of psychiatric material becomes a further consideration in the
ethical decision-making process which accompanies
the obligation, in
proper circumstances, to investigate the accused’s mental state. The ability
of defence counsel to control the use of psychiatric material depends on the
manner in which the psychiatric material has been obtained.
to available psychiatric material. Thus,
IV. The Lawyer’s Duty to Inquire: Obtaining Psychiatric Material
As a result of interviews, personal observation and available information
about the offence itself, a suspicion about mental disability may arise in
counsel’s mind. Particularly when these doubts might potentially relate to
the issues of fitness to stand trial or insanity at the time of the offence, the
lawyer is obliged to seek the assistance of psychiatric opinions in order to
advise the accused and properly make the necessary tactical decisions. This
initial obligation to enquire likely exists regardless of the degree of
seriousness of the offence so long as mental state represents an issue
potentially relevant to some aspect of the case. 03
The extent to which one must pursue the enquiry and the use to which
the psychiatric material will be put depends on the nature of the offence.
However, the initial determination of how to obtain psychiatric material
depends on the particular sources which may be available. The accused may
have been treated previously in a psychiatric institution. In Ontario,
103 Without reference to the specific problem of the mentally ill client, it has nonetheless
been said that there is always a general duty to ascertain all relevant facts. See M. Orkin,
Legal Ethics: A Study of Professional Conduct (1957), 80-1.
1982]
AN ETHICAL PERSPECTIVE
pursuant to s. 29 of the Mental Health Act,10 4 some clinical reports can be
obtained directly from the institution upon forwarding an executed
authorization in the prescribed form. Alternatively, the accused may be, or
may have been, the patient of a private psychiatrist. If so, h report can be
obtained by forwarding an authorization accompanied by an undertaking
to pay the psychiatrist’s account for preparing the report. The value of
material obtained from an institution or from a psychiatrist who has treated
the accused will depend on the length of time which has transpired since the
last contact with the accused and the nature of the confinement or treatment
particularly as it may be distinguished from the cognitive issues relevant to
fitness and insanity in the legal sense. One should be careful to recognize that
many psychiatrists do not have forensic experience. Hence, it is useful when
requesting a report from a psychiatrist who has treated the accused to outline
not only the circumstances which give rise to your request but also to provide
a brief discussion of the issues in which you are interested so that the
psychiatrist can relate his or her opinions to the relevant legal criteria. 05
In most cases, psychiatric institutions or practising psychiatrists who
have treated the accused will not provide adequate sources of material.
Particularly with respect to serious criminal offences, the material obtained
from these two sources may not be sufficient to assist counsel. Alternatively,
it may be that the accused has no treatment history. Accordingly, it becomes
necessary to consider obtaining psychiatric assessments from a psychiatrist
with forensic experience. The decision to obtain a fresh assessment should
be discussed with the accused not only to prepare the accused for the
assessment but also because the accused’s initial reaction to the suggestion
may foreshadow future conflict and provide a further relevant factor to be
considered when making future choices.
Essentially, there are two avenues by which psychiatric assessments can
be obtained. Counsel can retain a psychiatrist privately, assuming that funds
are available, which allows for control of selection and an opportunity to
acquaint and instruct the psychiatrist prior to the assessmient. The
alternative is to apply for an order for a remand for a mental examination.
This represents no cost to the accused, at least in financial terms, but the
resulting material is directed to the Court and is available to the Crown. At
the pre-trial stage, the authority for ordering a remand for a mental
examination is found in ss. 465(1) (c) and 465(2) of the Criminal Code. While
104 R.S.O. 1980, c. 262; originally enacted by S.O. 1978, c. 50, s. 10 and designated as s. 26a
of the Mental Health Act.
105 Even forensic psychiatrists can display inadequate understanding and erroneous views
of the legal tests for fitness. See, e.g., R. v. Morris, supra, note 2, 159 and the discussions in
Vann & Morganroth, Psychiatrists and the Competence to Stand Trial (1964) 42 U. Det.
L.J. 75 and McGarry, Competency for Trial and Due Process via the State Hospital(1965)
122 Am. J. Psych. 623.
McGILL LAW JOURNAL
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the statutory test asks whether “there is reason to believe that the accused
may be mentally ill”,106 the object of the remand is to generate opinions with
respect to the issue of fitness to stand trial. 07 Nevertheless, orders are often
made for other reasons and examining psychiatrists are not given clear
directions as to the purpose intended, whether justifiable under the existing
statutory provision or not. 08 Hence, the psychiatric interviews and the
resulting reports commonly extend beyond matters relevant to the fitness
issue to touch on other mental state issues even including factual admissions
which may relate to whether the accused committed the act.
V. Confidentiality of Psychiatric Material
In Canada, there is no privilege to protect communications between
psychiatrist and patient.109 While there may exist rare examples of a trial
judge refusing to compel testimony from a psychiatrist in order to maintain
the integrity of the treatment relationship, as in Dembie v. Dembie,110 such
cases are anomalous and cannot serve as the basis for reliance. Thus, a
psychiatrist who has treated the accused prior to the offence is a compellable
witness for the Crown. Even if defence counsel asks a psychiatrist to prepare
an opinion as to mental state based on a pre-existing treatment relationship,
the psychiatrist’s opinions are available to both sides. While it is argued in
this paper that an expert retained by defence counsel to assist in preparing
and presenting the case is protected under the umbrella of solicitor-client
privilege, this protection cannot be extended retrospectively to a previous
treatment relationship merely by paying a fee for a report. It may be,
however, that the nature of the psychiatrist’s role changes, notwithstanding a
pre-existing relationship, if he or she is retained after a criminal charge
specifically to interview and assess the accused in order to assist counsel.
106 Criminal Code, R.S.C. 1970, c. C-34, s. 465(l) (c). Foran explanation of the manner in
which the statutory test should be applied, see R. v. Sweeney (1976) 28 C.C.C. (2d) 70 (Ont.
Prov. Ct, Crim. Div.).
07 See R. v. Sweeney (No. 2) (1977) 28 C.C.C. (2d) 245 (Ont. C.A.).
1o8 See Lindsay, supra, note 8, 330-2; Working Paper 14, supra, note 9, 53-8.
109 See Schiffer, supra, note 11, 32-5; Manning & Mewett, supra, note 15,350-1;Tacon, A
Question of Privilege: Valid Protection or Obstruction of Justice? (1979) 17 Osgoode Hall
L.J. 332, 333-7; Dickens, Legal Protection of Psychiatric Confidentiality (1978) 1 Int. J. of
Law and Psych. 255, 257-60.
For general discussions as to the absence of physician-patient privilege at common law, see
J. Wigmore, Evidence, 3d ed. (1961) vol. 8, 2380-91; C. McCormick, Handbook of the
Law of Evidence, 2d ed. (1972), 212-3; R. Cross, Evidence, 5th ed. (1979), 296-7. There was a
statutory privilege with respect to physicians in Quebec by virtue of S.Q. 1965, c. 80, s. 308;
but s. 308 in the Code of Civil Procedure, L.R.Q. 1979, c. C-25, is now limited to government
officials and no longer includes physicians or priests, advocates, notaries and dentists.
110 (1963) 21 R.F.L. 46 (Ont. H.C.), discussed in Kirkpatrick, Privileged Communications
in Correction Services (1964) 7 Crim. L.Q. 305, 316-8.
1982]
AN ETHICAL PERSPECTIVE
In the United States, most jurisdictions have followed the lead of New
York which in 1828 enacted a statutory privilege to insulate the physician-
patient relationship.” Perhaps surprisingly, the extension of privilege to the
medical relationship has been criticized by commentators who argue that the
alleged benefit is questionable and speculative while the impairment of the
court’s fact-finding function is apparent.12 While some state courts have
attempted to diminish the extent of the privilege, so that in some jurisdictions
it has been characterized as “substantially impotent”,”13 a warmer reception
has been afforded recently to psychiatrist-patient privilege, based on a
“zones of privacy” rationale.” 4 A United States District Court Judge
stated:
Whatever merit these privacy arguments have in favour of a general patient-physician
privilege their persuasiveness is increased where the medical relationship implicated is
that between psychotherapist and patient. First, the pragmatic, empirical objections to
the rationale of the general physician-patient privilege are not applicable to this
specialized relationship. The practical need for and efficacy of a privilege covering
this unique relationship is clear… . Second, and perhaps more significant for the
purpose of determining the validity of a constitutional claim grounded in a right to
privacy, is the depth and extraordinary intimate nature of the patient’s revelations.” 5
However, by premising the argument for psychiatrist-patient privilege on a
right to privacy, its applicability is denied when the purpose of the
is not diagnostic or therapeutic but rather to assist with
relationship
litigation.” 6 This may be a significant distinction since the recommendation
of a general professional privilege 17 by the Law Reform Commission of
to consultations “for the purpose of obtaining
Canada
professional services” and subject to the qualification that the public interest
in maintaining the privacy of the relationship outweighs the public interest
in the administration ofjustice”. The public interest qualification creates an
onus of establishing confidentiality as compared to an onus of justifying
is restricted
III See McCormick, supra, note 109, 212, fn. 3.
112 See Morgan, Suggested Remedy for Obstructions to Expert Testimony by Rules of
Evidence (1943) 10 U. Chi. L. Rev. 285, 290-2; Chaffee, Privileged Communications: Is
Justice Served or Obstructed by Closing the Doctor’s Mouth on the Witness Stand? (1943)
52 Yale L.J. 607, 609-10.
113 Comment, Federal Rules of Evidence and The Law of Privilege (1969) 15 Wayne L.
Rev. 1286, 1324.
14See United States ex. rel. Edney v. Smith 425 F. Supp. 1038 (E.D.N.Y. 1976) per
Weinstein J. applying Roe v. Wade 410 U.S. 133, 152 (1973) per Blackmun J. and Doe v.
Bolton 410 U.S. 179, 197-8 (1973) per Blackmun J.
115 Ibid., 1043.
116 Ibid., 1044; State v. Hilliker 185 N.W. 2d 831 (C.A. Mich. 1957); Peoplev. Lines531 P.
2d 793 (Cal. 1975) (in banco); State v. Kociolek 129 A. 2d 417 (N.J. 1957).
1 7 Law Reform Commission of Canada, Report on Evidence[;] Proposed Evidence Code
(1975), s. 41.
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[Vol. 27
disclosure-a reversal of the position proposed for marital or family
privilege 18 and Crown privilege. 119
With respect to opinions arising from a compulsory examination
pursuant to s. 465(1) (c), the practice has developed that both sides receive
copies of the examining psychiatrist’s report. If mental state is in issue at
trial, the expert can be called to give opinion evidence on behalf of the Crown
or the defence even though, strictly speaking, the object of the remand was to
consider only the issue of fitness to stand trial. The relevance of mental state
goes beyond questions of fitness and insanity and has been held to include
the defence of non-insane automatism 20 and a defence based on the
accused’s “normal mental make-up” in the context of an offence “of a kind
that is committed only by members of an abnormal group”. 121 The
admissibility of opinion evidence permits testimony about the basis for the
opinion, including reference to incriminating admissions. Although such
admissions must be subjected to a limiting instruction which cautions the
jury as to their restricted purpose distinct from evidence going to the
truthfulness of an admission, 22 the prejudice which arises merely from
allowing the jury to hear the admission cannot be eradicated. 23
The more intriguing question is whether the psychiatrist who conducts
the fitness assessment at the request of the court can be compelled to disclose
factual admissions made by an accused during the assessment in cases where
mental state is not in issue and the sole purpose of the testimony is to fill a
factual gap in the Crown’s case. This issue was addressed recently by the
Alberta Court of Appeal in Regina v. Stewart.124 The setting was a re-trial of
a first-degree murder charge before a judge sitting without a jury, in which
the statement to the psychiatrist was characterized as “the one piece of direct
evidence putting the Appellant at the scene of the crime on the evening in
question.”‘ 25 The psychiatrist confirmed that he had advised the accused at
the outset of their interview that its purpose was directed solely to the issue of
fitness and that anything said was confidential and could not be disclosed.
The Court applied a subjective test to determine whether the psychiatrist was
a person in authority and held that the circumstances were sufficient to
118 Ibid., s. 40.
119 bid., s. 43.
120 See R. v. Smith (Stanley) [1974] 1 W.L.R. 1445, 1452 (C.A.) per Geoffrey Lane L.J.
121 See R. v. McMillan (1975)23 C.C.C. (2d) 160, 177-8 (Ont. C.A.)per Martin J.A., affd
McMillan v. The Queen [1977] 2 S.C.R. 824.
122 See Wilband v. The Queen [1967] S.C.R. 14, 21 per Fauteux, J.
123 See Perras v. The Queen [1974] S.C.R. 659, 673-4 per Spence J., dissenting; Krulewich
v. United States 336 U.S. 440, 453 (1949) per Jackson J.; Delli Paoli v. United States 352
U.S. 232, 247 (1957) per Frankfurter J.; Jackson v. Denno, Warden 378 U.S. 368, 388-9
(1964) per White J. See also Tacon, supra, note 109, 347.
124(1980) 54 C.C.C. (2d) 93 (Alta C.A.).
1251Ibid., 9 8.
1982]
AN ETHICAL PERSPECTIVE
designate him as such so that the admission could only be accepted into
evidence if “voluntariness” was established. By adopting a narrow view of
“voluntariness” restricted to a test of reliability, 26 the Court rejected the
argument that the assurance of confidentiality was an inducement which
rendered the admission involuntary. It stated that “the inducement would
not give the appellant any hope of advantage which, in turn, might constitute
a motive for a false statement”. 27 It is regrettable that the argument and
decision proceeded from the narrow perspective of voluntariness as it relates
to the admissibility of an incriminating statement. A broader approach
would have compelled a closer examination of the nature of the relationship
between a psychiatric examiner and an accused in a situation where the
examiner acts under the auspices of the court and the accused is confined in
custody shortly after arrest on a serious criminal charge. A more
comprehensive analysis, including consideration of psychiatric diagnostic
techniques, may have persuaded the court that it is naive to assume that an
assurance of confidentially could only produce truthful results in the
circumstances. Moreover,
the need for candour and co-operation to
enhance the validity of the assessment may, in the context of an assessment
requested by the court to assist in determining whether the accused is fit to
stand trial, have persuaded the court to distinguish the statement made to the
psychiatrist from other out-of-court statements. In this way, it could have
been argued that the public interest in promoting the integrity of the
administration of justice required the exclusion of the statement. Assuming
that the confession
to accommodate an
exclusionary discretion based on ensuring that the manner in which evidence
is obtained and used does not produce a perception of unfairness or bring the
administration of justice into disrepute, 128 the betrayal of the psychiatrist’s
assurance of confidentiality should be a significant factor. Alternatively,
because of the functional role which the compulsory examination plays
within the criminal process, the accused’s participation in the assessment
process might be characterized as both “qua accused” and “qua witness”
is sufficiently broad
rule
126 Ibid., 106-7. The Court applied the apparent acceptance in R. v. Alward and Mooney
[1978] 1 S.C.R. 559, 562 per Spence J. of the test put by Limerick J.A. in the following terms:
“The true test, therefore, is did the evidence adduced by the Crown establish that nothing,
said or done by any person in authority, could have induced the accused to make a statement
which was or might be untrue because thereof.”
However, the Supreme Court recently confirmed in Rothman v. The Queen (1981) 20
C.R. (3 d) 97, 116 per Martland J., that Spence J.’s “casual” acceptance is not to be construed
as formulating a new test and rejected reliability as the rationale for the admissibility of
confessing in favour of a vaguely defined concept of voluntariness.
227 Ibid., 108.
128 See R. v. Sang [1980] A.C. 402,436-7 (H.L.)per Lord Diplock, 449-50per Lord Fraser
of Tullybelton, 455-7 per Lord Scarman. See also Rothman, supra, note 126, 125-34 per
Estey J., dissenting, 146-54per Lamer J., concurring with the majority in the result, and 97-
119 per Martland J., speaking for the majority.
McGILL LAW JOURNAL
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such that subsequent disclosure could be prevented by relying on the
testimonial nature of the so-called right against self-incrimination. 129
Thus, it appears that there can be no expectation of control in respect of
psychiatric opinions obtained either as a result of a previous treatment
relationship or a court ordered remand for “observation”. Furthermore, so
long as the authority of Regina v. Stewart 3o remains unchallenged,
to court orders may produce an
psychiatric assessments pursuant
even unsuspecting – Crown witness as to factual issues. A
unexpected –
more unsettling example arose recently in Newfoundland when an accused
attempted to challenge the validity of a search warrant issued to obtain the
hospital file arising from the psychiatric remand. 131 The warrant had been
issued on the information that an anonymous doctor had advised the
informant that the accused (who stood charged with first-degree murder)
had made relevant admissions, a record of which was included in the file.
Noel J. denied the application without analyzing the relationship between
the psychiatrist and the remanded prisoner as a component of the criminal
process by concluding that it “is difficult to believe that public policy requires
that evidence which might tend to prove truth in a trial of a person charged
with a criminal offence should be suppressed”. 132
It remains to consider whether any degree of control and protection
from disclosure exists with respect to a psychiatrist retained by defence
counsel to assess the accused. The question of controlling psychiatric
material from an expert retained by defence counsel becomes a relevant
consideration in making ethical and tactical judgments, particularly in
respect of the lawyer’s duty to inquire and consult. Can the Crown raise a
mental state issue through the opinion evidence of a psychiatrist initially
retained to assess the accused and consult with defence counsel? Can the
Crown call a defence psychiatrist to give opinion evidence which tends to
rebut a mental state issue raised by the defence? If these questions compel an
affirmative answer, the necessary consequence must be a reluctance to
consult extensively with experts for fear that unfavourable opinions, or
opinions inconsistent with the ultimate defence posture, will come back to
haunt the accused. Perhaps more disturbing is the question of control and
confidentiality as it relates to factual admissions made by the accused during
the assessment process- an assessment arranged by defence counsel
in cases where mental state is not in issue.
ostensibly to benefit the accused –
Assuming that the prosecution is aware that a psychiatric assessment of the
129See Marcoux and Soloman v. The Queen [1976] 1 S.C.R. 763.
130 Motion for leave to appeal to the Supreme Court of Canada refused, 20 May 1980 per
Martland, Ritchie and Dickson JJ.
131 Waterford Hospital v. The Queen (1981) 23 C.R. (3d) 48 (Nfld S.C.).
132 Ibid., 5 1. Interestingly, no authority was cited for this far-reaching conclusion other
than a reference to the Criminal Code, R.S.C. 1970, c. C-34, s. 443.
1982]
AN ETHICAL PERSPECTIVE
accused has been completed, it is not unreasonable for the Crown to
conclude that the examination included a interview which touched on the
events giving rise to the charge. It is common for a responsible psychiatrist to
obtain not only the accused’s personal history but also a factual account of
the events from the accused’s perspective. 33 A zealous Crown Attorney
faced with factual gaps in the Crown’s case might consider whether these
gaps could be filled through admissions made by the accused to the
psychiatrists retained by the accused’s counsel. Thus, one must ask the
general question whether the defence psychiatrist is a compellable witness on
behalf of the Crown.
At first, the question appears to compel a simple answer – a psychiatrist
retained by defence counsel is protected under the umbrella of solicitor-client
privilege. However, further consideration tends to complicate the issue
when one appreciates that the question does not relate to communications
between the client and the solicitor or even between the psychiatric expert
and the solicitor, for example a written report provided to the solicitor, but
rather relates to communications between the accused and the psychiatrist.
Ordinarily, admissions against interest are admissible subject to the test of
voluntariness in respect of admissions to persons in authority. However, the
characterization of the issue as an “admissions” problem is in my view
erroneous and tends to cloud the issue. A proper analysis requires resort to
the underlying rationale of solicitor-client privilege. It is commonly accepted
that the basis for this privilege relates to the adversarial nature of the judicial
process rather than some special quality inherent in lawyers as a group which
distinguishes them from physicians and the clergy. Recently, the Supreme
Court of Canada cited with approval the following classic explanation of the
rationale offered by Jessel M.R. in Anderson v. Bank of British Columbia:
The object and meaning of the rule is this: that as, by reason of the complexity and
difficulty of our law, litigation can only properly be conducted by professional men
[sic], it is absolutely necessary that a man, in order to prosecute his rights or to defend
himself from an improper claim, should have resource to the assistance of professional
lawyers, and… that he should be able to make a clean breast of it to the gentleman
whom he consults…; that he should be able to place unrestricted and unbounded
confidence in the professional agent, and that the communications he so makes to him
should be kept secret, unless with his consent (for it is his privilege, and not the privilege
of the confidential agent), that he should be enabled properly to conduct his
litigation.’ 34
Simply and briefly put, communications between a solicitor and client
are privileged in order that frank and truthful discussions can be conducted
133 See Meister, Miranda on the Couch: An Approach to Problems of Self-Incrimination,
Rights to Counsel, and Miranda Warnings in Pre-Trial Psychiatric Examinations of
Criminal Defendants (1974) 11 Colum. J. of Law and Soc. Prob. 403, 417.
34 [1876] 2 Ch. 644,649 cited with approval in Solosky v. The Queen [1980] I S.C.R. 821,
835 per Dickson J.
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to allow the solicitor to advise a client of his or her legal position so that the
client can make full answer and defence without fear of any prejudice arising
from the discussion. In other words, the privilege exists to protect the client
and not the solicitor. As has already been stated, in many situations it is not
only prudent but is also the lawyer’s duty to obtain psychiatric assessments in
order to properly advise an accused. Assuming that such an assessment
involves frank discussions between the accused and the psychiatrist, it is
entirely consistent with the policy behind solicitor-client privilege to include
these discussions under its protective umbrella.
To conclude otherwise would leave either the solicitor or the psychiatrist
in an untenable position. In a case where the proof of factual guilt is
contentious, defence counsel would likely be reluctant to obtain a psychiatric
assessment, notwithstanding the existence of deep suspicions as to the
accused’s mental state, in order to ensure that factual admissions made
during the course of the assessment could not serve to fill in gaps in the
Crown’s case. In respect of clients who are in custody pending trial, there
would be little difficulty in finding out the names of any psychiatrists who
visited the jail to interview them. Alternatively, the psychiatrist might, in
order to avoid becoming a Crown witness as to factual admissions, choose
not to obtain a factual account from the accused during the assessment
process. Thus, we are left with an emasculated assessment and a less than
satisfactory opinion. Accordingly, it is submitted that in order to protect the
accused’s right to make full answer and defence and to ensure that the
accused has the best opportunity of obtaining legal advice and assistance, it is
necessary that the lawyer be free to consult with psychiatric experts.
Discussions between the expert and the accused, carried out for the purpose
of developing an opinion for the use of the solicitor, must be protected by
privilege.
It would be useful to consider the role of the legal secretary, articling
student, clerk or investigator employed by a solicitor. Can there be any
doubt that these individuals are protected by solicitor-client privilege in
respect of any communications made to them by their employer’s client with
respect to pending litigation? They act as agents for the solicitor and, again, if
the accused is to obtain proper advice based on frank discussions, the
solicitor’s agents must also be protected.135
In the United States, a number of cases have insulated psychiatrists
retained by defence counsel by way of analogy to the agency relationship.
Hence, psychiatrists have been characterized as “transmission agents” or
135See Wigmore, supra, note 109, 2301; Gardner, Agency Problems in the Law of
Attorney-Client Privilege: Privilege and “Work Product” Under Open Discover)y(1964) 42
U. Det. L.J. 105, 121-5; McLachlin, Confidential Communications and the Law of Privilege
(1977) 11 U.B.C. L. Rev. 266, 275.
1982]
AN ETHICAL PERSPECTIVE
“intermediate agents”. 36 Essentially, these cases concluded that adequate
legal representation when mental state was in issue required the assistance of
a psychiatric expert to obtain and interpret data for use by defence counsel
such that communications between the accused and the “transmission agent”
warranted the protection of lawyer-client privilege. 37 The question of
lawyer-client privilege was discussed extensively in the more recent decision
from the Third Circuit in United States v. Alvarez138 in which the
prosecution subpoenaed a psychiatrist retained by the defence and elicited
opinion evidence as to the accused’s sanity to rebut the defence of insanity as
well as incriminating factual admissions made to the psychiatrist. In a well-
reasoned judgment which considered a variety of potential sources for
protection of the psychiatrist, the Court concluded that the accused was
protected from the disclosure of any admissions by the psychiatrist by reason
of the attorney-client privilege and the sixth amendment guarantee of
effective assistance of counsel. 39 Recognizing the lawyer’s obligation to
consult with psychiatric experts, the Court stated:
A psychiatrist will of necessity make inquiry about the facts surrounding the alleged
crime, just as the attorney will. Disclosure made to the attorney cannot be used to
furnish proof in the government’s case. Disclosures made to the attorney’s expert
should be equally unavailable, at least until he is placed on the witness stand. The
attorney must be free to make an informal judgment with respect to the best course for
the defense without the inhibition of creating a potential government witness. 40
Moreover, the Court rejected the prosecution’s argument that by raising the
defence of insanity the accused had waived any privilege or confidentiality
with respect to the psychiatrist.14′ By rejecting any form of implied waiver,
the decision gave the defence complete control over its own psychiatrists and
ensured that the fear of generating an unfavourable opinion or incriminating
admissions would not inhibit defence counsel from consulting one or more
experts.
The two grounds posited in Alvarez for protecting the accused from the
compellability of the defence psychiatrist were not viewed cumulatively but
as alternative bases for the Court’s decision. While there is no constitutional
136 See San Francisco v. Superior Court 231 P. 2d 26 (Cal. 1951); Statev. Kociolek, supra,
note 116; People v. Hilliker, supra, note 116; Exparte Ochse 238 P. 2d 561 (Cal. 1951).
137 See San Francisco v. Superior Court, supra, note 136, 29-31; Note, Protecting the
Confidentiality of Pretrial Psychiatric Disclosures. A Survey of Standards (1976)51 N.Y.U.
L. Rev. 409, 438-9. But, cf. Schiffer, supra, note 11; Gardner, Agency Problems in the Law
of Attorne’-Client Privilege: The Expert Witness (1965) 42 U. Det. L.J. 473, 478-9.
138519 F. 2d 1036 (3d Cir. 1975), applied and explained in United States ex. rel. Edney,
supra, note 114; United States v. White 617 F. 2d 1131, 1135 (5th Cir. 1980) per Roney J.;
Federal Trade Commission v. T.R. W., Inc., 628 F. 2d 207, 212 (D.C. Cir. 1980) per
McGowan J.
139 Ibid., 1045-6.
140 Ibid., 1046-7.
141 Ibid.
McGILL LAW JOURNAL
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analogy in Canada to the effective assistance of counsel issue, it is submitted
that a similar argument could be based on the right to make full answer and
defence. A failure to afford protection similar to that in Alvarez places
ethical and
tactical hurdles in counsel’s path by discouraging frank
consultation with experts. Hence, it can be argued that the public interest is
better served by enabling defence counsel to investigate comprehensively
and put forward all available defences rather than by inhibiting effective
representation merely to assist the Crown in a few cases with evidence of a
dubious nature. To permit the Crown to compel testimony from defence
psychiatrists must intuitively leave a bad taste in the mouth of anyone who
would suggest that the burden of proof rests on the Crown.
Further support for the use of privilege to protect a defence psychiatrist
from compellability can be found in the acceptance by the Supreme Court of
Canada in Slavutych v. Baker 42 of Wigmore’s four fundamental tests
“necessary to the establishment of a privilege against the disclosure of
communications”:
I. The communications must originate in a confidence that they will not be disclosed.
2. This element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties.
3. The relation must be one which in the opinion of the community ought to be
seduously fostered.
4. The injury that would inure to the relation by the disclosure of the communications
must be greater than the benefit thereby gained for the correct disposal of litigation.’ 4′
With respect to psychiatric testimony, affirmative arguments in support of
conditions one to three are easily developed. 44 While the phrase “correct
disposal of litigation” in condition four may raise questions, it is submitted
that a narrow construction with reference solely to promoting the
community’s interest in criminal convictions is entirely unwarranted and
that the proper construction compels consideration of the apparent fairness
of the administration of justice, the presumption of innocence and the
accused’s right to make full answer and defence. Commentators have
suggested that the application of Wigmore’s four pre-conditions to privilege
will extend the existing categories of matters protected by solicitor-client
privilege 145 and that it might even provide a general protection against
142[1976] I S.C.R. 254. Laskin C.J.C. points out in his dissenting judgment in Solicitor
General of Canada and the R.C.M.P. v. The Royal Commission of Inquirr, Into the
Confidentiality of Health Records (1980) 38 N.R. 588, 619 (S.C.C.) that “Slavut’ch
established that the categories of privilege are not closed.” For other examples of a public
interest test to the question of disclosure of information obtained through assurances of
confidence, see Rogers v. Home Secretary[1973] A.C. 388 (H.L.); D. v. NationalSocietyfor
the Prevention of Cruelty to Children [1978] A.C. 171 (H.L.); Science Research Councilv.
Nassd [1980] A.C. 1028 (H.L.).
’43 Ibid., 260 per Spence J. quoting from Wigmore, supra, note 109, 2285.
144 See Ho, supra, note 15, 203-9.
’45 McLachlin, supra, note 135, 275-9.
1982]
AN ETHICAL PERSPECTIVE
disclosure by psychiatrists in the absence of a waiver by the patient. 46 More
significantly, the Appellate Division of the Alberta Supreme Court in Re
Medicine Hat Greenhouses Ltd and German and The Queen (No. 3)147
recently upheld a decision which applied Wigmore’s four-fold test to render
inadmissible a report from investigators to counsel for the Department’of
Justice on the basis of solicitor-client privilege. During the course of arguing
a prohibition application raising, among other grounds, an abuse of process
argument with respect to delay in prosecution, the applicant sought
production of the investigator’s report which recommended prosecution.
The Appellate Division agreed with the ruling and reasons of the Chambers
Judge who stated:
There is, however, a very considerable distinction between the facts and particulars on
the one hand, and placing an accused in a direct line of communications between
Crown counsel and the investigators who assist him on the other hand.’ 48
In other words, the document was privileged because it represented a
confidential communication which conveyed facts and opinions between
counsel and those employed for the purpose of assisting with litigation.
Thus, one can infer that in the context of a tax prosecution the “correct
disposal of litigation” should be interpreted to include a reference to the
adversarial nature of the trial process and the inherent need to promote frank
discussions with counsel. If solicitor-client privilege extends to protect the
report of a tax investigator to Crown counsel, surely it must extend to
protect a defence psychiatrist from compellability.
Although it may be suggested that, in respect of a psychiatrist or any
other expert, there is no property right, this suggestion ignores the nature of
the evidence in question. We are not discussing evidence which exists at large
and is available to anyone who finds it; we are discussing statements made
directly by an accused to an expert retained by his or her own counsel.
Frankness is encouraged because the accused’s advocate has sanctioned the
interaction and placed trust in the psychiatrist. Recognizing that he cannot
be compelled to volunteer admissions to the police or to give testimony at
trial, the accused voluntarily co-operates with the expert retained by his
counsel solely for the purposes of assisting counsel in promoting the
accused’s best interests and ensuring the accused’s right to make full answer
and defence in order that the trial process can reach a fair adjudication and
appropriate disposition. The relationship between accused, counsel and
psychiatrist is not tripartite in nature but has a unitary object-the
protection and promotion of the accused’s best interests within the structure
of the criminal process. One could not find a more patent case for the
protective cloak of solicitor-client privilege.
146 See Ho, supra, note 15; Dickens, supra, note 109.
147(1978) 45 C.C.C. (2d) 27, 43-5 (Alta S.C., App. Div) per Leiberman J.A.
148 Ibid., 45.
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VI. Ethical Aspects of the Issue of Fitness
To return to the ethical dilemma posed earlier is there an obligation on
defence counsel to raise the issue of fitness when in possession of confidential
psychiatric material which causes one to doubt whether the accused is fit to
stand trial even in the face of a disavowal of mental disability by the accused
and instructions not to raise the issue of fitness? Given the nature of the
fitness inquiry, the mere existence of instructions is not particularly helpful.
One must recognize that the available psychiatric opinion may be vague or
qualified either in respect of whether a mental disability exists or in respect of
the corollary issue whether, according to the accepted criteria, it might
render the accused unfit to stand trial. Of course, a vague or qualified
opinion might create an obligation to obtain a further opinion. Ultimately, it
may still arise that the ambit of available psychiatric opinions do not clarify
the situation. Hence, I would suggest that defence counsel must balance the
psychiatric opinion with his own perception of the client’s capacity to
understand the nature of the allegations and the criminal process, to
appreciate the potential consequences, to communicate with counsel and to
assist generally in the conduct of the defence. If after these considerations
have been made there exists serious doubt about fitness to stand trial, I
would submit that counsel must raise the issue, subject only to the
qualifications discussed below dealing with the nature of the offence,
probable sanctions and the availability of diversion from the criminal
process.
Fitness hearings are often characterized as “non-adversarial”‘ 49 in nature
and therefore discussions by the judiciary of counsel’s role are uncommon in
cases where fitness is put in issue. However, the duty upon defence counsel
was discussed in Rex v. Gibbons’5o in which the issue of fitness to stand trial
was not raised formally by the defence or by the Crown but arose obliquely
from questions asked by defence counsel of a psychiatrist who was called to
give evidence in support of a defence of insanity. Assuming that defence
counsel had made the tactical decision not to raise fitness, Robertson C.J.O.
made the following comment:
In my opinion it is open to grave question whether counsel, having the opinion of a
psychiatrist, whom he proposes to call as a witness for the defence, that the accused is
suffering from mental illness or insanity, which he proposes to establish as a defence to
49 See R. v. Roberts, supra, note 5, 546; R. v. Budic supra, note 5, 278. However, this
characterization may be overly simplistic in that it does not take into account the manifold
circumstances in which an accused may vigorously and justifiably contest the Crown’s
assertion, whether it be fitness or unfitness, keeping in mind that it is the Crown which has
chosen to invoke the criminal process. As a result of this “non-adversarial” characterization,
the issues relating to the standard of proof and upon whom it lies have been distorted. See R.
v. Waltucky, supra, note 5, 46; cf. R. v. Hughes, supra, note 6, 104.
150(1946) 86 C.C.C. 20 (Ont. C.A.).
1982]
AN ETHICAL PERSPECTIVE
the charge, is entitled to take it upon himself to enter upon the trial without directing the
attention of the trial Judge to the situation, so that, in his discretion, the trial may not be
entered upon until it has been determined that the accused is mentally fit to be tried…. I
find it difficult to conceive how counsel for the accused could properly receive
instructions from the accused as to a defence of insanity, if that insanity still persisted at
the time of the trial.’ 5′
While His Lordship’s views may be appropriate in a situation where the
available psychiatric opinion does cause, or should cause doubt on the part
of defence counsel as to the accused’s fitness to stand trial, it should be noted
that the psychiatric testimony in Gibbons indicated that the accused
understood the proceeding and the nature of the allegation against him and
that he could instruct counsel “merely as to the events that occurred, but not
as to the reasons beyond them” due to the delusions under which he
laboured.152 In light of the distinctions between the issue of fitness and
insanity as a defence, the harsh criticism of defence counsel in Gibbons
appears to have been unwarranted. The persistence of delusions which relate
to the event in question must necessarily cloud any attempt to discuss the
event but need not affect an accused’s fitness to stand trial. There are more
recent examples of judicial reaction to a fit but delusional accused which
reflect a more sophisticated appreciation of psychiatric testimony and the
distinctions between fitness and insanity as a defence.’ 53 Furthermore, the
reaction in Gibbons tends to ignore the role of defence counsel’s own
observations as to the extent of the client’s communicative and cognitive
abilities. Particularly if one subscribes to the view that a fitness inquiry is
“non-adversariar’ in nature, I would suggest that any serious residual doubt
on the part of defence counsel should be resolved in favour of raising the
issue, keeping in mind that the observations of defence counsel as to the
relevant criteria put in question during a fitness inquiry should be brought to
the Court’s attention.
Of course, the obligation to raise the issue of fitness must be qualified by
a pragmatic assessment of the potential consequences of a finding of
unfitness compared to the criminal sanctions which might be available upon
conviction. When dealing with less serious offences, the obligation to raise
the issue of fitness cannot be viewed in absolute terms. Even short terms of
imprisonment are likely to appear more attractive than the spectre of
indefinite confinement pursuant to a Lieutenant-Governor’s warrant. 54
151 Ibid., 21-2 per Robertson C.J.D.
152 Ibid., 25-6 per Laidlaw J.A.
153 See R. v. Trecroce, infra, note 182; R. v. Budic, supra, note 5; R. v. Morris, supra,
“S
note 2.
154 For a dramatic example of the dangers of confinement pursuant to t Lieutenant-
avage, The
Governor’s Warrant, see the discussion of the Emerson Bonnar case in
Relevance of the Fitness to Stand Trial Provisions to Persons with Mental Hai’dicaps (198 1)
;.
59 Can. Bar Rev. 319.
McGILL LA W JOURNAL
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However, in the context of charges which are lower down in the hierarchy of
criminal offerices, other alternatives are available. These situations present
an opportunity for a conciliatory attempt at diversion which might be
arranged through negotiations with the police and the Crown. Keeping in
line with the idea of employing the “least intrusive” form of disposition, 155
counsel must be prepared to address the questions of available treatment
facilities in the community and the accused’s amenability to treatment in
order to provide a realistic basis for a discussion of diversion. If the accused
appears to be both unfit and certifiable pursuant to provincial legislation
which involves an assessment of whether the accused is dangerous to himself
or others, it may be prudent to consider resort to the mechanisms of the
mental health legislation rather than the criminal process. Substantial
distinctions exist between the two vehicles in respect of the duration of
confinement and the frequency of reviews in order to justify continued
confinement. 56 If an accused appears to be unfit to stand trial in a situation
where there is no concern about dangerousness such that certification
pursuant to provincial legislation is not available, other options may be
available in the community and should be discussed with the various
participants in the criminal process. It may be clear that to merely terminate
the criminal process and risk the repetition of further petty offences
represents less of a cost both in human and financial terms than to subject the
accused to confinement pursuant to a Lieutenant-Governor’s Warrant.
VII.
Insanity: T he Ethical Dilemma
The ethical dilemma with respect to insanity which perplexes counsel
defending a serious criminal charge arises when the available psychiatric
opinions reflect a potential s. 16 insanity defence but the accused specifically
instructs counsel not to raise it. Keeping in mind that the criteria relevant to
the issue of fitness are different from the factors which relate to insanity
pursuant to s. 16 of the Criminal Code, this category of dilemma divides into
two sub-categories depending on whether the alleged “disease of the mind”
which existed at the time of the offence still exists at trial or not. Pragmatic
consideration must be given to the seriousness of the charge and the potential
consequences which could flow from conviction. One would hope that the
issue would only be characterized as a dilemma for counsel in situations
where the prosecution may result in lengthy terms of imprisonment. For the
purpose of discussion, we are assuming that the trial has commenced and
that the accused has not been found unfit. Hence, it is presumed that the
155 The idea of the “least intrusive” form of intervention arises from the recommendations
of the Law RWform Commission of Canada, A Report to Parliament on Mental Disorder in
the Criminal Process (1976), [hereinafter Men7tal Disorder in the Criminal Process] 36-7,
discussed comprehensively in Lindsay, supra, note 8.
156 Mental Health Act, R.S.O. 1980, c. 262, ss. 14, 31 and 32.
1982]
AN ETHICAL PERSPECTIVE
accused is capable of instructing counsel. To supercede instructions, defence
counsel must necessarily be prepared either to subordinate the duty to the
accused in favour of perceived duties owed to the community or to some
concept of justice, or alternatively, to prefer his or her own view of the
accused’s “best interests” to that of the accused. The dynamics of this
analysis will likely vary depending on the individual lawyer’s self-perception
and characterization of the role of the lawyer. Admittedly, this analysis may
appear facile and simplistic in that it does not adequately reflect the intense
anxiety which usually befalls a lawyer ensnared in this ethical dilemma. To
the extent that the scope of this analysis is acceptable, however, it directs our
attention to two subsidiary questions:
1. Can it be said that the accused has misperceived his or her”best interests”
by reason of the accused’s lack of insight into mental problems or an
inability to appreciate reasonably the respective consequences of a
conviction and a verdict of not guilty by reason of insanity?
2. Does the accused by reason of mental illness represent a danger?
It may be suggested that a further question arises as to whether the lawyer
subscribes to a view of the criminal justice system which, in orthodox terms,
should not permit the conviction of an accused who is not criminally
responsible. Assuming that no conscientious member of the defence bar
would carry this proposition to absurdity by raising a s. 16 defence in
response to a prosecution over a matter like shoplifting, it cannot be given a
decisive role and must be subsumed by the pragmatic considerations
involved in assessing the accused’s appreciation of potential consequences.
First, we can deal with the situation of the accused who is not mentally-ill
at trial. My comments are restricted to the situation of an accused in respect
of whom psychiatric evidence, if adduced, will indicate that he or she at the
time of the offence was subject to a “disease of the mind” which would have
rendered the accused insane within the meaning of s. 16 but which condition
is no longer operative by reason of either successful treatment or the passage
of time. Hence, we are dealing with an accused who is capable of providing
clear and reasonable instructions and who does not, by reason of mental
illness, present concerns as to dangerousness. Ordinarily, we would
conclude that counsel must follow instructions. If the accused instructs
counsel not to raise a defence of insanity, however, the situation may still be
one in which the accused and counsel differ as to what is in the accused’s
“best interests”. Of course, it is the accused who is on trial and thus entitled to
be the risk-taker. It is not uncommon for an accused to choose not to follow
counsel’s advice and to embark on a course which counsel considers
imprudent. I would suggest that the appropriate test is not based on the
prudence of the choice but rather on the reasonableness of the consideration.
Counsel must assess the accused’s understanding of the likelihood of
conviction or acquittal in the absence of a defence based on mental state and
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determine whether the accused appreciates the distinctions between the
likely range of sentence which will flow from a conviction and the likelihood
of discharge from the Lieutenant-Governor’s Warrant which will issue as a
result of a verdict of not guilty by reason of insanity. The weighing of
consequences is more pointed in the context of a murder prosecution with
the potential consequence of a mandatory term of life imprisonment and a
lengthy parole eligibility period. The strength of the Crown’s case must be
carefully considered in order to assess whether the accused’s instructions
represent an unreasonable risk-taking. Unless the process of consideration is
inadequate such that the instructions can be characterized as unreasonable,
it is submitted that defence counsel should follow instructions. It is trite to
add that these instructions should be obtained in writing complete with
comprehensive acknowledgements of the advice given by counsel in respect
of the options available to the accused. If counsel considers that the
instructions are unreasonable, I would suggest that the appropriate response
is to withdraw from the case in accordance with the appropriate mechanisms
for withdrawal in criminal cases as may apply in the jurisdiction.157 I reach
this conclusion not out of any interest in providing counsel with a method by
which to abdicate responsibility but rather to reflect the significance of the
accused’s sense of responsibility. It is, of course, the accused who pays the
consequences and who should be responsible for the consequences. While
paternalistic responses may be endemic to the role of the lawyer who so often
encounters dependant clients seeking to transfer their own anxieties and
responsibilities, it is submitted that, in the context of a rational client,
paternalism must be treated with suspicion.158 If the alternative to
withdrawing is continued participation, but with reservation or without
vigor, this is obviously undesirable. On the other hand, the act of
withdrawing might produce a salutary effect on the accused’s perception of
his or her “best interests” particularly if subsequent counsel also reacts
adversely to the accused’s instructions.
A far more complex problem arises in the context of an accused who,
although fit to stand trial, is still apparently subject to the “disease of the
mind” which was operative at the time of the offence. In light of the complex
nature of this problem, it would be presumptuous to offer a solution or even
to propose a vague mode of analysis which would be universally applicable.
One can, however, raise the various considerations which are relevant and
5 7 See L.S.U.C. Handbook, supra, note 19, 31-5, Rule II and commentary.
1
158 This is particularly significant with respect to the lawyer’s role within the contemporary
“ideology of advocacy” described by Simon, supra, in which the lawyer’s functional role as
professional engenders deference to his opinions thereby distorting the client’s ability to
assess and choose. If both client and lawyer approach problems as autonomous individuals
who accept responsibility for their choices, conflict may be inevitable so that continued
representation by the lawyer is impossible.
19821
AN ETHICAL PERSPECTIVE
examine cases which appear to reflect this kind of ethical dilemma in order to
provide examples of different reactions to the situation.
With respect to the relevant considerations, one obviously starts with a
careful examination of the available psychiatric opinions in order to assess
the extent to which the alleged mental illness might affect the instructions
given by the accused. Particular attention should be paid to the existence of
delusions and the extent of the accused’s insight into his or her mental
problems. A disavowal of any mental illness by the accused in the face of
strong psychiatric opinions to the contrary is particularly relevant in the
context of what a non-medical person would characterize as bizarre or
aberrant behaviour. Attention must be paid to the issue of dangerousness as
well as the question of treatability. Treatment gives rise to its own range of
sub-issues keeping in mind that the indefinite confinement which arises from
a Lieutenant-Governor’s Warrant provides for safe custody but does not
necessarily require the provision of treatment.15 9 While s. 19 of the
Penitentiary Act’ 60 provides a mechanism for the transfer of prisoners to a
mental health facility, it must be noted that the use of this mechanism is
subject to agreement by both the penitentiary and the receiving institution as
to the appropriateness of the transfer and the suitability of the prisoner to the
regime of the psychiatric facility. Within the penitentiary system itself,
psychiatric resources are not extensive and most programmes are of a pre-
release nature.161 In the result, a convicted accused whose mental illness
manifests a serious danger to others but which is amenable to intensive
treatment may find, tragically, that such treatment is not available. 62
159 See Mental Disorder in the Criminal Process, supra, note 155, 36-7; Ex Parte Kleinys
[1965] 3 C.C.C. 102 (B.C.S.C.); Re Brooks (1961) 37 C.R. 348 (Alta S.C.).
360 R.S.C. 1970, c. P-6, s. 19 discussed in R. v. Deans (1977) 37 C.C.C. (2d) 221,226 (Ont.
C.A.) per Martin J.A.
161 See Canada: Department of the Solicitor General, The General Program for the
Development of Psychiatric Services in Federal Correctional Services in Canada (1973),
[referred to as the Chalke Report].
162 R. v. Poore, an unreported decision of the Ontario Court of Appeal released on 1 June
1978, arose from an appeal against a life sentence following a manslaughter conviction in
respect of an accused who exhibited an unusual but dangerous sexual aberration.
Psychiatric evidence indicated that the accused might respond to an intensive therapeutic
program lasting five to ten years. Subsequent to conviction and in the face of strong
recommendations by the sentencing judge, the authorities at the Mental Health Centre in
Penetanguishene re-assessed the accused as unsuitable for that facility and he was
transferred to penitentiary custody at the Regional Psychiatric Centre in Kingston. In light
of the life sentence and the short pre-release nature of its programmes, the penitentiary
system would not provide treatment until the accused approached his parole eligibility date.
After considering the changed circumstances, and recognizing that it was a”tragic case”, the
Court dismissed the appeal on the basis that the issue raised related to the administration of
the sentence, not its fitness. See also the commentary on this case from the psychiatrist’s
perspective in Smith & Braun, Necrophilia and Lust Murder: Report of a Rare Occurrence
(1978) 6 Bull. of the Am. Academy of Psych. and Law 259.
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Whether based on a perception of the accused’s best interests or because
of a sense of duty to the community or a concept of justice, defence counsel
might responsibly conclude that the defence of insanity must be raised. 63
The more difficult problem, however, is choosing the vehicle for putting the
issue forward. If one subscribes to the view that defence counsel has conduct
of the case, an attempt might be made to raise the defence on behalf of the
accused. As soon as this plan of action came to the attention of the accused,
the likely result would be the discharge of counsel. If this happened before
trial, the same ethical problem would merely be placed in the hands of
another lawyer without any progress towards a resolution. The Ontario
Court of Appeal addressed the question of an accused’s right to discharge
counsel after the commencement of a trial in Regina v. Spataro.164 While the
appeal against conviction was dismissed, at least two of the judges confirmed
that a trial judge would commit a serious error by directing counsel to
continue in the face of an unequivocal discharge.165 In dissent, Brooke J.A.
challenged the view that defence counsel had conduct of the case by
supporting his conclusion as to the accused’s right to discharge counsel not
only by reference to the right to make full answer and defence but more
significantly because of “the accused man’s fundamental right to the conduct
of his own trial.”6 6 Accordingly, depending on the manner in which the
discharge of counsel is effected, the trial judge would be compelled either to
allow self-representation or declare a mistrial. In either event, nothing would
have been achieved beyond extricating the particular lawyer from the
situation. When this question was raised in a 1969 panel discussion
conducted by the Law Society of Upper Canada on the topic of ethics and
163 Even Munroe Freedman does not exclude this response. Ordinarily his iconoclastic
reactions to ethical problems in the criminal process maintain the inviolability of lawyer-
client confidentiality as the bulwark of an adversarial process premised on disproportionate
resources between the accused and prosecutor. See generally Freedman, supra, note 48;
Freedman, Where the Bodies are Buried: The Adversary System and the Obligation of
Confidentiality (1974) 10 Crim. L. Bull. 979. Freedman argues that the efficacy of the
adjudicative process permits counsel to discredit a witness he believes to be telling the truth,
to call a witness he believes will commit perjury and to advise a client in a manner which
might tempt him to perjury. See Freedman, Professional Responsibility of the Criminal
Defence Lawyer: The Three Hardest Questions (1966) 64 Mich. L. Rev. 1469; Noonan, The
Purposes of Advocacy and Limits of Confidentiality (1966) 64 Mich. L. Rev. 1485.
However, when faced with a mentally disturbed client, Freedman has expressed his
uncertainty as to the lawyer’s obligations and conceded that “the lawyer might come to the
conclusion that the client does not indeed know what is in his or her best interests”. See the
discussion in N. Galston, Professional Responsibility of the Lawyer: The Murki, Divide
Between Right & Wrong (1977), 72.
4 C.C.C. (2d) 215 (Ont. C.A.).
‘(1971)
165 See ibid., 216 per Jessup J.A., 218 per Brooke J.A., dissenting, 216 per Kelly J.A.; the
latter’s judgment is ambiguous on this point since he concluded that “there was never an
unequivocal discharge of counsel by the accused.”
166 Ibid., 220.
1982]
AN ETHICAL PERSPECTIVE
advocacy, 67 Mr Justice Hartt offered a lengthy response including the
following comment:
[I]f indeed the offence is capital murder as premised in this question then, I think that
counsel has a responsibility to raise that defence. It should be raised and if he is
controlling the conduct of the defence then the insanity defence will, in fact, be raised. If
the accused refuses to allow him to do so, this certainly in my opinion would be very
valid grounds for the counsel to leave the case. 168
While this statement may reflect a controversy within judicial ranks as to
which party, counsel or the accused, has conduct over the defence, it is
submitted that the option of withdrawal is only appropriate in the context
discussed above – an accused who no longer suffers from the disease of the
mind which allegedly affected his reasoning at the time of the offence. If the
accused is still subject at the time of trial to the same defective reasoning,
withdrawing from the case achieves no more than the smooth extrication of
one lawyer and the thorny entrapment of another.
There may be some cases in which the Crown is in possession of
psychiatric material which would support a defence of insanity. This mate-
rial may have been obtained by way of a court-ordered remand for mental
examination or, during the pre-trial stage, arrangements may have been
made with defence counsel and the accused for an assessment by a psychia-
trist retained by the Crown. In this situation, defence counsel could consider
an attempt to persuade the Crown to raise the issue of insanity. If the Crown
agreed, the lawyer’s problem would not be resolved but only diminished
since it would still be necessary to consider how on behalf of the accused the
Crown’s psychiatric evidence would be addressed in cross-examination.
There is also the question of whether defence counsel could make available
to the Crown other existing psychiatric opinions obtained in the course of
preparing for trial or, at least, provide the prosecution with the names of
psychiatrists who may have assessed the accused. It is submitted that either
step would be improper and inconsistent with the protective umbrella of
solicitor-client privilege which should operate not only to preclude the
prosecution from compelling testimony from a defence psychiatrist but also
to prevent defence counsel from communicating the substance of such
opinions. Quite clearly, the privilege belongs to the client and, when faced
with specific instructions not to raise insanity, it could hardly be argued that
the client has waived the privilege which should apply to insulate such
psychiatric material. Perhaps what is more critical in assessing this avenue is
the gnawing sense of impropriety that surrounds such indirect methods.
While it may be too strong to suggest a tainted resemblance to backroom
167 See the comments of Martin, “Problems in Ethics and Advocacy” in Defending the
Criminal Case [1969] L.S.U.C. Special Lectures 279,282-4. See also Martin, The Role and
Responsibility of the Defence Advocate (1970) 12 Crim. L.Q. 376.
168 Ibid., 315.
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manipulations, the aphorism that something which cannot be done openly
should not be done at all certainly comes to mind.
A responsible approach was endorsed by Mr Justice Hartt when, faced
with this issue, he said:
I suggest that.., a somewhat modified position of the traditional approach will be
adopted, namely, that insanity being a defence should be raised only by the accused or
upon his behalf, subject to a right in the trial judge to raise the issue where the interests
of justice demand that that be done. In my opinion, the modern view of the purpose
and function of the criminal law demands this modification to the strict adversary
process. 169
In other words, the suggestions appears to be that the trial judge would be
invited to raise the issue of insanity. While the adversary process would be
maintained to the extent that defence counsel could challenge the psychiatric
evidence adduced
in support of the defence either through cross-
examination or by calling opinion evidence to the contrary, the procedure
would have to be viewed as exceptional at least to the extent of permitting or
justifying the release by defence counsel of the names of psychiatric wit-
nesses who would support the issue. In practical terms, this may not present
a real problem at least with respect to an accused who is in custody since it
would not be particularly difficult for the Crown to find out which psychia-
trists may have visited thejail. However, to be frank about the procedure, its
exceptional nature must be recognized in order to answer the argument of
privilege, which I have submitted should apply to psychiatric evidence
obtained by defence counsel in preparation for trial.
A number of recently reported cases which, by their circumstances,
appear to have involved counsel in this ethical issue are useful in illustrating
the choices made by counsel and how the judiciary reacted to them. In the
case of Regina v. Gorecki (No. 1) and (No. 2), the appellant had been
convicted of non-capital murder in respect of the death of his wife. 170 At trial,
the theory of the defence was based on accident. Subsequently, pursuant to
an application to the Minister of Justice in accordance with s. 617(b) of the
Criminal Code, the issue of the accused’s fitness to stand trial was referred to
169 Ibid., 314-5. This view receives support from the careful analysis of Chernoff &
Schaffer, supra, note 1, 523-7. See also the Report of the RoYal Commission on Capital
Punishment (1949-53), Cmnd 8932, 155-6, para. 454, which found it undesirable that the
prosecution should have the power to raise the defence of insanity but nonetheless
recommended that the trial judge should have the authority “to raise the issue of insanity, to
call relevant evidence and to put the issue to the jury” subject to the qualification that the
power not be exercised unless the judge “was satisfied that this course was in the interests of
justice and that no reasonable or legitimate interest of the defence would thereby be
prejudiced”.
170 Reference Re Regina v. Gorecki (No. 1) (1976) 32 C.C.C. (2d) 129 (Ont. CA.);
Reference Re Regina v. Gorecki (No. 2) (1976) 32 C.C.C. (2d) 135 (Ont. C.A.). The original
appeal to the Ontario Court of Appeal is reported as R. v. Gorecki(1973) 14 C.C.C. (2d) 378.
1982]
AN ETHICAL PERSPECTIVE
the Ontario Court of Appeal. After it became apparent that the psychiatric
evidence to be heard would extend to the question of insanity at the time of
the offence, a second expeditious application to the Minister of Justice was
made in order to expand the terms of the reference. It is from this reference
that the history of the case, including instructions to trial counsel, became
known. Prior to trial in 1973, defence counsel became concerned about the
accused’s emotional state and discussed this problem “as a matter of precau-
tion” with a senior member of the criminal bar and subsequently arranged
for a psychiatric examination including the use of sodium amytal. The
psychiatric report indicated that the accused was fit to instruct counsel but
that “insanity might constitute a valid defence to the charge of murder.”
The psychiatrist orally advised counsel that the accused suffered from a
“reactive depression… of psychotic proportions”. 172 The accused, however,
who was a physician himself, would not accept the suggestion that insanity
be put forward and instructed that the trial proceed on the basis of
accident. 73
While some of the psychiatrists who testified on the reference thought
that the accused was unfit to stand trial, the Court concluded that an
“inability to accept the possibility that he could have been wrong or insane at
the time of the shooting” did not render the accused unfit particularly in light
of his ability to understand the trial process, communicate rationally with
counsel and give a detailed account of the events. 174 On the issue of insanity,
the Court concluded that there was substantial evidence that Dr Gorecki
suffered “from a severe mental disorder both at the time of the incident
giving rise to the charge and at the time of the trail; he did not then have (and
has not now) any real insight into his condition, and did not consider that he
was insane”.175 Upon concluding that the fresh psychiatric evidence was
such that a jury might reasonably be persuaded on a preponderance of
probability that the accused was insane within the meaning of s. 16, the
Court allowed the appeal and ordered a new trial limited to the defence of
insanity. One must note the lengthy and circuitious path taken in this case in
order that counsel could bring the issue of insanity to court on behalf of an
accused who disavowed mental illness. In retrospect, one might infer that
the accused’s background may have influenced trial counsel’s disposition to
follow instructions. However, it must also be remembered that a defence
based on the accidental discharge of the rifle, although rejected, was not an
unreasonable one to be pursued by defence counsel. A further noteworthy
aspect was the Court’s reaction to the psychiatric evidence as new and fresh
evidence. The usual limitations on the admissibility of new and fresh
1 Gorecki (No. 2), ibid., 141-2.
172 Ibid., 142.
173 Gorecki (No. 1), ibid., 132.
[-s Ibid., 134-5.
175 Gorecki (No. 2), ibid., 146.
McGILL LAW JOURNAL
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evidence 176 are often applied to ensure that an accused who consciously
chose to try one route at the original trial cannot go back for a second
attempt via a different path. In Gorecki (No. 2) the Court reacted with
flexibility to this aspect and to the “due diligence of counsel” test when faced
with an appellant who, though fit to stand trial, appeared to have been
mentally-ill at the time of the offence and throughout the trial.
The case of Regina v. Irwin177 reflects the use of the powers of an
appellate court, both procedural and dispositional, to bring forward the
issue of insanity. The appellant had been convicted of the murder of her
infant son. At trial, the theory of the defence was essentially “that the child
had been killed by the stranger who had asked to use the telephone and not
by the appellant.”’78 The defence did not raise an issue arising from mental
state and, in the Ontario Court of Appeal, twelve of the thirteen grounds of
appeal raised related to the “mysterious stranger” defence, the remaining
ground dealing with an alleged failure to properly explain infanticide.
Without stating what actually took place during the course of argument, the
reported judgment indicates that although counsel for the appellant “advised
the court that he was not putting forward any ground of appeal based on
insanity, we were concerned about the mental condition of the appellant.”’79
With the consent of counsel, the argument of the appeal was adjourned and
the Court employed the power contained in s. 608.2 of the Criminal Code to
remand the appellant to a mental facility for observation. Upon receiving
the report of the forensic psychiatrist, the Court of Appeal requested that the
opinions of the psychiatrist be given orally to the Court, recognizing that this
procedure was an unusual one but that “justice required that it be done.”‘8 0
The opinion provided by the psychiatrist who was, at the time, the Co-
ordinator of Forensic Services at the Queens Street Mental Health Centre in
Toronto, was essentially that the combination of a character disorder, the
ingestion of alcohol and drugs and post-partum depression rendered the
appellant unable to appreciate the nature and quality of her act when she
killed her child. Because the Court was satisfied that the appellant had
committed the act, notwithstanding the “mysterious stranger” defence, and
was gatisfied that the appellant was insane at the time of the offence within
the meaning of s. 16, it invoked the dispositional power contained in s. 613(1)
(d) to allow the appeal and enter a verdict of not guilty by reason of insanity.
Again, perhaps out of sympathy for counsel’s dilemma, the judgment
176 See McMartin v. The Queen [1964] S.C.R. 484; R. v. Parks( 1962) 46 Cr. App. R. 29,32
per Parker L.C.J.; R. v. Demeter (1975) 25 C.C.C. (2d) 417, 454 (Ont. C.A.); R. v.
McDonald[1970] 3 C.C.C. 426 (Ont. C.A.).
177(1977) 36 C.C.C. (2d) I (Ont. C.A.).
178 Ibid., 2.
179 Ibid., 3.
180 Ibid.
1982]
AN ETHICAL PERSPECTIVE
expressly indicates that the appellant’s counsel “would not agree to the
Court making an order under that section.”‘ 81
The more recent case of Regina v. Trecroce 82 dramatizes the naivety of
the conclusion that the lawyer’s dilemma at the appellate stage can be
resolved easily and simply through the use of the appellate court’s power to
remand an appellant for a mental examination. The appellant had been
convicted of murdering his wife. The trial judge left the defences of self-
defence, drunkenness, provocation and accident with the jury. In accor-
dance with instructions and a firm disavowal of mental illness, a defence
based on mental state was not raised notwithstanding the existence of a
psychiatric opinion obtained through a court ordered remand that, while the
appellant was fit to stand trial, “there was significant evidence that the
appellant as a result of serious mental disorder may have been insane within
s. 16 of the Code at the time of the killing.”‘ 83 While this material would have
been in the possession of the Crown, apparently the issue of insanity was not
raised by the Crown at trial.
In the Court of Appeal, an application was made by counsel for the
appellant, with the support of the pre-existing psychiatric opinion, for an
order pursuant to s. 608.2(1) (b) of the Code. The order was made and a
further psychiatric assessment obtained. Perhaps again out of sympathy for
counsel’s dilemma, the judgment expressly states the following:
Mr. Ruby while making it clear that he was not advancing the defence of insanity on
behalf of the appellant, agreed that it was entirely appropriate for the Court to consider
the psychiatric reports previously mentioned. 84
After considering the reports, the Court was of the view that the psychiatric
opinion evidence should be adduced viva voce and the matter was adjourned
again. Up to this stage, the development of the case parallels that of Irwin.
Upon reconvening, however, the Court was advised that the appellant had
discharged his counsel since he “did not want to be seen as mentally ill, and
was opposed to the issue of insanity being considered by the Court.”‘ 85
Counsel indicated that he was prepared to continue his participation in
order to assist the Court. The Court expressed concern about the appellant’s
competence to discharge counsel and requested further psychiatric assess-
ments in this regard. Two psychiatrists testified that the appellant, while
suffering from a mental disorder and perhaps subject to the exercise of bad
judgment, was capable of understanding the proceedings, the functions of
the participants, the evidence, the scope of the issues and the possible
181 Ibid., 4.
182(1980) 55 C.C.C. (2d) 202 (Ont. C.A.).
183 Ibid., 215.
M Ibid., 216.
1ss Ibid.
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outcome. By applying the fitness criteria employed in Gorecki (No. 1), the
Court concluded that the appellant was competent to discharge counsel and
that it would be unfair to ask counsel to continue in any capacity. The Court
took pains to point out that, in their view, counsel had “discharged his duty
to the appellant and to the Court ably and with entire propriety”.186 After an
adjournment, another counsel was retained who was prepared to follow the
appellant’s instructions that the insanity issued be challenged. Subse-
quently, a different conflict arose between counsel and the appellant and this
counsel was also discharged. After a number of adjournments, the appellant
eventually proceeded without counsel.
In light of the protracted course taken in this case to raise the issue of
insanity at the appellate stage, it is perhaps surprising that the Court
eventually rejected the issue on the basis that the psychiatric evidence was
not of sufficient strength or cogency to justify either substituting a verdict of
not guilty by reason of insanity as in Irwin, or even to order a new trial. With
respect to a new trial, it must be noted that the issue of insanity was
disavowed by the appellant and was essentially raised by the Crown
respondent. Accordingly, in light of the appellant’s tenacious insistance that
he was not mentally-ill, the Court considered the issue of a new trial in the
context of whether insanity could be raised by the Crown. It relied on
Reginav. Simpson187 in rejecting this form of disposition. It is interesting to
note that on appeal the psychiatric evidence indicated that the appellant’s
mental state had deteriorated substantially so that the delusions to which he
was subject had become more fixed. Since there was some indication of
treatability, notwithstanding a guarded prognosis, the Court directed that all
psychiatric reports and a transcript of the psychiatric evidence be transmit-
ted to the penitentiary authorities and pointed out the availability of s. 19 of
the Penitentiary Act to transfer a prisoner to a mental health facility. The
Court referred to Regina v. Deans,188 in which this transfer mechanism was
discussed as a response to judicial recommendations for psychiatric treat-
ment. The “normal procedure” set out in Deans tends to give the impression
that in Ontario the only obstacle to a transfer to the Mental Health Centre at
Penetanguishene is whether the receiving institution is “able and willing to
accept the prisoner for treatment.”‘ 89 In Trecroce, the Court recognizes the
discretion which rests with the penitentiary authorities before invoking s. 19
of the Penitentiary Act by predicating the reference to a transfer on whether
“the penitentiary authorities consider that it is desirable and appropriate.”” 9 0
186 Ibid., 217.
187(1977) 35 C.C.C. (2d) 337 (Ont. C.A.), discussed infra, note 196 and accompanying
text.
18 Supra, note 160, 226-7.
189 Ibid., 227.
190 R. v. Trecroce, supra, note 182, 218.
1982]
AN ETHICAL PERSPECTIVE
The last example is Regina v. Talbot (No. 2),191 which highlights the
extraordinary role a trial judge may be asked to play in situations where an
accused specifically instructs defence counsel not to raise insanity but psy-
chiatric material exists which would support this issue. In Talbot, psychiat-
ric opinion evidence was adduced by the Crown as part of its case which
tended to show that at the time of the shooting the accused’s mental state fell
within the operative scope of s. 16 of the Criminal Code. The accused
specifically instructed his counsel not to raise the issue of insanity nor to call
any evidence in support of it. The trial judge indicated that, in his view, the
accused’s decision was a “reasonable and rational one”. 192 Apparently,
remarks were made by counsel to indicate that testimony was available from
two psychiatrists and a psychologist which would bear on the issue of
insanity and, furthermore, would likely support the psychiatric evidence
already offered by the Crown. From the report of the ruling, it appears that
defence counsel openly disclosed the names of the available witnesses. In
light of the accused’s instructions and defence counsel’s decision to abide by
them, the issue for the trial judge was whether to compel the Crown to call
the available expert witnesses when, at least as it appears from the report, the
Crown did not choose to do so. Galligan J., while recognizing the existence
of a residual power in unusual circumstances to direct that Crown counsel
call specific witnesses, concluded that it would not be appropriate to do
So. 193 This left the judge to decide whether steps should be taken on his own
initiative to ensure that “any evidence that may prevent an improper con-
viction from being registered, should be placed before the jury.” 194 Premis-
ing his conclusion on a consideration of what the interests of justice
required, Galligan J. decided to call the expert witnesses. Furthermore, to
ensure fairness to the accused, and the Crown having closed its case, he
proposed to call the evidence prior to putting the accused to his election as to
whether defence evidence would be called. He also indicated that he would
19′ (1977) 38 C.C.C. (2d) 560 (Ont. H.C.).
192 Ibid., 560.
193 Ibid., 561. Although Galligan J. offered no references, it would appear that his views
are consistent with precedent. Simplistically stated, one might say that the authority of a
trial judge to interfere in the trial process by directing the prosecution to call specific evidence
is limited to situations in which the judge is of the view that the prosecution has improperly
exercised its discretion as to the evidence it has chosen to call (see R. v. Oliva (1965) 49 Cr.
App. R. 298) or, in other words, that the exercise of this discretion was “influenced by some
oblique motive” (see Lemay v. The King [1952] 1 S.C.R. 232). See also Silverman, The
Rial Judge: Pilot, Participant or Umpire? (1973) 11 Alta L. Rev. 40. For a general
discussion of the scope of ajudge’s role in the conduct of a trial, see S. Cohen, Due Process of
Law (1977) 281, 342.
194 Ibid., 561. For a general discussion of the trial judge’s power to call witnesses, see
Newark & Samuels, Let the Judge Call the Witness [1969] Crim. L.R. 399; Stenning, One
Blind Man to See Fair Play: The Judge’s Right to Call Witnesses (1973) 24 C.R.N.S. 49, an
annotation following and with respect to R. v. Bouchard (N.S. Cty Ct).
Mc GILL LAW JOURNAL
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initially examine each witness and thereafter an opportunity would be
afforded both to Crown counsel and defence counsel to cross-examine.
Although the issue of insanity appears to have been raised by the Crown in
Talbot, the active role played by the trial judge in the face of instructions to
counsel by the accused not to call psychiatric evidence in support of insanity,
comes extremely close to the non-adversial role suggested by Mr Justice
Hartt. The case reflects another exception to the traditional adversary
approach to the criminal process in that no disapproval was attributed to
defence counsel’s open disclosure of the names of available psychiatric
witnesses. If the conduct of defence counsel was unobjectionable, and I
would suggest that it was, what might arguably have been a breach of
solicitor-client privilege as it relates to experts retained by the defence must
be justified by reference to the exceptional and peculiar nature of the case.
While there are inherent distinctions between the issues of fitness and
insanity at the time of the offence, the circumstances of an individual case
might allow for some analogy at least to the extent that counsel could
properly raise the issue with the court, leaving its introduction as an issue in
the particular trial to the court’s discretion. Thus, counsel would be able to
cross-examine psychiatric witnesses whose opinions supported the defence
of insanity and would also be able to call psychiatric evidence in rebuttal,
assuming that it was available. Particularly with respect to accused persons
like Gorecki or Trecroce who exhibited no insight into their own mental
state, this approach would avoid the protracted proceedings which occurred
in those cases by ensuring that mental state was placed before the trier of
fact. More importantly, this approach would enable an accused through
counsel to challenge vigorously the issue of insanity and the existence of the
alleged disease of the mind upon which it would be premised.
It must be kept in mind that any steps towards raising insanity when
disavowed by the accused must be subject to a serious consideration of the
strength of the Crown’s case particularly as it relates to whether the accused
committed the act. Of course, this consideration will include reference to a
denial of the act by the accused, as in Irwin, for example. A denial of the act
accompanied by a disavowal of mental disability casts the problem in a
different light and invokes different considerations due to the inherent
prejudice which might flow from allowing evidence of mental illness to go to
the jury. This situation was put to Mr Justice Hartt in the hypothetical
context of a case in which alibi evidence was available, as well as psychiatric
material pointing to insanity, although the accused disavowed mental
illness.’ 95 He responded that if the alibi was not preposterous it should be
pursued and the matter of insanity not raised because to do so would place
inconsistent positions before the jury. He went on to say that if the alibi was
195Supra, note 170.
1982]
AN ETHICAL PERSPECTIVE
not believable, then the appropriate decision would be to raise insanity.
While this test appears attractive, the subjective consideration as to what is
preposterous or what is believable brings us back full circle to the earlier
discussions of the role of counsel as it relates to prejudging facts. While the
test can be stated easily, it would be wrong to assume that it can be applied
easily or that its application precludes an ethical dilemma. However, this
response is consistent with the rationale in Regina v. Simpson 96 which,
although it relates to the ability of the Crown to raise insanity, addresses the
same dangers but from a different perspective. Martin J.A. concluded that,
in a situation where an accused denies committing the act and identity is in
issue, it would be prejudicial to allow the Crown to raise insanity on the basis
of psychiatric material which might suggest that the accused is the kind of
person who might be expected to commit the sort of acts alleged. The
Ontario Court of Appeal has recently in its judgment in Regina v.
Saxell’97 clarified Martin J.A.’s comments in this regard by providing an
indication of the factors which a trial judge must consider when determining
whether leave should be granted to the Crown to raise insanity when the
accused has not chosen to do so. The judge must ask whether there is
persuasive evidence of guilt and substantial evidence of the accused’s insan-
ity, and must show regard for the seriousness of the charge and the dan-
gerousness of the accused. 198
Conclusion
Findings of unfitness to stand trial or insanity at the time of the offence,
while conceptually distinct, give rise to the same consequences: indefinite
commitment pursuant to a Lieutenant-Governor’s Warrant. The circum-
stances which may give rise to either finding can span a variety of disorders
accompanied by a spectrum of potential treatment responses. 199 While some
disorders may include indicia of dangerousness, this vague notion is not an
essential element in either adjudicative inquiry. Moreover, a growing body
of literature exists which supports the conclusion that the prediction of
dangerousness is beyond the expertise of psychiatrists. 200 Notwithstanding
the variety of circumstances which may give rise to findings of unfitness or
insanity, and the array of real distinctions between individuals so found, the
196 Supra, note 187.
19(1980) 59 C.C.C. (2d) 176 (Ont. C.A.).
198 Ibid., 188-9 per Weatherston J.A.
199 See American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders, 3d ed. (1980) [commonly referred to as DSM-1 I1].
200 See Morris, Psychiatry and the Dangerous Criminal (1968) 41 S. Cal. L. Rev. 514;
Cocozza & Steadman, The Failure of Psychiatric Predictions of Dangerousness: Clear and
Convincing Evidence (1976) 29 Rutgers L. Rev. 1084; Dix, Determining the Continued
Dangerousness of Sex Offenders (1975) 3 J. of Psych. and Law 327.
REVUE DE DROIT DE McGILL
[Vol. 27
Criminal Code continues to offer a single response. If a person is found to be
unfit, even though the issue of fitness can be postponed until after the close
of the Crown’s case,20′ the accused will in most situations be denied a full
adjudication as to guilt. Accordingly, the ensuing indefinite incarceration
can only be characterized as the punitive aspect of what is essentially a status
crime – unfitness due to mental illness. Furthermore, it appears that the
Lieutenant-Governor’s responsibility after a warrant has been issued does
not extend beyond providing safe custody to ensure the protection of the
community.202 So long as Parliament continues to refuse to recognize
disparities between accused persons who may be mentally-ill and continues
to subject all such individuals to the potential consequences of indefinite
commitment, defence counsel will continue to be thrust into the “ethical
quicksand”. 203 Only a variety of dispositional alternatives structured to
accommodate the scope of treatment needs will free the criminal process
from the fear of excessive consequences which distorts factual inquiry,
prevents humane responses to the mentally-ill accused and subjects lawyers
to distressing ethical dilemmas.
In this paper, I have suggested that the hard questions posed by mental
illness within the criminal process must be resolved by an ethical decision-
making process personal to the lawyer. While the professional component
of institutional ethics offers no assistance, at the same time its inability to
address these questions does not preclude the exercise of individual
judgment even if it leads to the conclusion that, in particular circumstances, a
client’s instructions can be superseded. In this regard, comments found in
Invin, Trecroce and Talbot reflect judicial approval of the individual deci-
sions by counsel who reached that conclusion. One aspect of professional
codes of conduct which might provide some assistance in difficult situations,
and which is particularly relevant in light of the issue of confidentiality
discussed earlier is the lawyer’s obligation to consult with experienced
members of the bar in order to ensure a standard of competent and conscien-
tious service. 204 Such consultations are clearly protected by solicitor-client
privilege. 205 The commentary to the same rule which encourages consulta-
tion with more experienced lawyers also recognizes that lawyers may need to
“seek advice from, or collaborate with experts in scientific, accounting or
201 Criminal Code, R.S.C. 1970, c. C-34, s. 543(4). The Law Reform Commission of
Canada has recommended that the discretion to postpone be extended beyond the close of
the Crown’s case to permit a “full adjudication of the merits”. See Mental Disorder in the
Criminal Process, supra, note 155, 44, Recommendation 18.
202 See supra, note 159, passim.
203 Regrettably, this phrase is not original but must be credited to Chernoff & Schaffer,
supra, note I.
204 L.S.U.C. Handbook, supra, note 19, 2-3, Rule 2 and accompanying commentary.
205See Cross, supra, note 109, 249; Gardner, supra, note 135, 121-2.
1982]
AN ETHICAL PERSPECTIVE
other non-legal fields”.206 While consultation with a psychiatrist may be
different from consultation with other experts, since it will likely require
interaction between the client and the psychiatrist, the intended purpose of
assisting counsel in responsibly and properly presenting a defence is equally
applicable whether the person consulted is an accountant, pharmacologist,
neurosurgeon, psychiatrist or another lawyer. Thus, what was a matter of
good practice appears to have been transformed into a professional duty
thereby lending further support to the conclusion that the lawyer-client-
psychiatrist relationship nestles confidentially within the shelter of solicitor-
client privilege.
Consultation with other lawyers may assist in formulating one’s response
to an ethical problem and should be encouraged. In somejurisdictions, such
as Ontario, the professional governing body is structured to permit the
seeking of an advisory opinion before a lawyer acts. By their official nature,
such consultations are different from asking another lawyer for a personal
ethical response to a situation. Because one is dealing with a committee of
the governing body, the opinions generated necessarily reflect an attempt to
produce a response which is consistent with the group norm. Strictly
speaking, the lawyer is not bound to act in accordance with the advisory
opinion. Should the matter become controversial, however, the lawyer sits
in the position of someone who knew the views of the governing body but
chose not to follow them. Thus, unless one is entirely satisfied in advance
that conformity with the advisory opinion is appropriate, regardless of its
substance, a serious process of consultation with experienced and senior
members of the bar on an individual basis will be more useful to the lawyer
who wishes to formulate a personal ethical response.207
206 Supra, note 204.
207 This should not be taken to mean that conformity with the group norm is inherently
wrong. In my view, however, blind unthinking conformity is wrong in that, by precluding
individual judgments, it negates the autonomy and responsibility of the lawyer and, more
significantly, entrenches “what is” without regard to “what ought-to be”.
