Over at The Canadian Privacy Law Blog, David T. S. Fraser writes a damning post of prosecutorial misconduct in the wake of the scathing decision of Justice Mosley of the Federal Court in IN THE MATTER OF an application by [xxxxx xxxxxx ] for a warrant pursuant to Sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, 2013 FC 1275 [PDF].
See also, Fraser’s earlier post: Canadian Privacy Law Blog: Canadian intelligence agencies lied to obtain warrants, Federal Court judge says).
Fraser’s posts mince no word and I commend them both, but here is the key point:
Courts are generally hesitant to go so far as to say that an affiant or a legal advisor lied to the court. That the Court did so in this case highlights how significant and egregious it was. This sort of conduct brings the administration of justice into disrepute and casts a pall over every warrant ever issued by the Court.
The decision names five Department of Justice lawyers who made “appearances” at the hearing of this matter but does not specify on whose specific advice CSIS was acting.
The warrant system only works if CSIS and their lawyers are truthful to the Court. This duty of candour is greatly elevated when they are the only ones appearing before the Court, as there is nothing adversarial to ensure that the truth comes out.
This cannot go unnoticed. This is not a “no harm, no foul” situation. The Government needs to appoint a special prosecutor to investigate how this came to be and the law societies governing those five lawyers should investigate what really appears to be egregious professional misconduct. Only a special prosecutor can do the job, as all five of the lawyers were arguing their case on behalf of the Deputy Attorney General of Canada, the country’s top lawyer and prosecutor. Anything less would be sweeping this under the rug. [emphasis added]
It’s Fraser’s choice not to name and shame the five Department of Justice lawyers who, acting for CSIS, committed professional misconduct, or as Justice Mosley’s put it:
“…The failure to disclose that information was the result of a deliberate decision to keep the Court in the dark about the scope and extent of the foreign collection efforts that would flow from the Court’s issuance of a warrant.
 This was a breach of the duty of candour owed by the Service and their legal advisors to the Court. It has led to misstatements in the public record about the scope of the authority granted the Service by the issuance of the 30-08 warrants. [emphasis added by Fraser]
Given that the decision is public record, I have no qualms in identifying the lawyers who in Fraser’s own words “[t]he Court specifically found that agents of the Canadian Security Intelligence Service — on the advice of and with the concurrence of their Department of Justice lawyers — misled the Federal Court of Canada in order to obtain a warrant or warrants under the CSIS Act.”
Mr. Robert Frater
Ms. Isabelle Chartier
Mr. Jacques-Michel Cyr
Mr. Rémi Chapadeau
William F. Pentney
I have not heard of any of the lawyers, except Mr. Robert Frater, who some may know as the author of the leading text entitled “Prosecutorial Misconduct” (Canada Law Book, 2009) [ORDER IT HERE!]
Frater’s Canada Law Book author bio reads:
Robert J. Frater, B.A., LL.B., is Senior General Counsel with the Federal Department of Justice in Ottawa. He is currently a member of the Ontario bar, and has, in the past, been members of both the Northwest Territories and Nunavut bars. Mr. Frater has appeared before the Supreme Court of Canada and other appellate courts on numerous occasions, and has been counsel on many significant cases raising prosecutorial misconduct issues, such as R. v. Regan and Krieger v. The Law Society of Alberta. He has written and lectured on a wide variety of criminal law topics, and was for many years the chief writer/editor of the federal Crown’s policy manual, the Federal Prosecution Deskbook, which has been described as “one of the best sources of ethical guidance [for prosecutors.]”. He is the author of Prosecutorial Misconduct and co-author of Drug Offences in Canada, Third Edition (Canada Law Book). [emphasis added]
Oh, and this gem from the Federal Prosecution Deskbook, Chap. 9:
9.3.1 The duty to ensure that the responsibilities of the office of the Attorney General are carried out with integrity and dignity
Counsel can fulfil this duty:
- by complying with applicable rules of ethics established by their bar association;
- by exercising careful judgment in presenting the case for the Crown, deciding what witnesses to call, and what evidence to tender;
- by acting with moderation, fairness, and impartiality;
- by not discriminating on any basis prohibited by s. 15 of the Charter;
- by adequately preparing for each case;
- by not becoming simply an extension of a client department or investigative agency;Footnote24 and
- by conducting plea and sentence negotiations in a manner consistent with the policy set out in this deskbook.Footnote25
9.3.2 The duty to preserve judicial independence
Counsel can fulfil this duty:
- by not discussing matters relating to a case with the presiding judge without the participation of defence counsel;
- by not dealing with matters in chambers that should properly be dealt with in open court;
- by avoiding personal or private discussions with a judge in chambers while presenting a case before that judge; and
- by refraining from appearing before a judge on a contentious matter when a personal friendship exists between Crown counsel and the judge.
9.3.3 The duty to be fair and to appear to be fair
Counsel can fulfil this duty:
by making disclosure in accordance with the policy set out in this manual;Footnote26
by bringing all relevant cases and authorities known to counsel to the attention of the court, even if they may be contrary to the Crown’s position;
by not expressing personal opinions on the evidence, including the credibility of witnesses, in court or in public;
by being conscious of the factors that can lead to wrongful convictions, such as false confessions and mistaken eyewitness identification;
by zealously guarding against the possibility of being afflicted by “
tunnel vision”Footnote27, through close identification with the investigative agency and/or victim, or through pressure by the media and/or special interest groups;
by remaining open to alternative theories put forward by the defence;
by not expressing personal opinions on the guilt or innocence of the accused in court or in public;
by asking relevant and proper questions during the examination of a witness and by not asking questions designed solely to embarrass, insult, abuse, belittle, or demean the witness. Cross examination can be skilful and probing, yet still show respect for the witness;
by respecting the court, defence counsel, the accused, and the proceedings while vigorously asserting the Crown’s position; and
by never permitting personal interests or partisan political considerations to interfere with the proper exercise of prosecutorial discretion.