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Judiciary to the Bar: Make Contemporaneous Notes and Take Written Instructions

David Elmaleh
David Elmaleh
Partner

Aryeh Samuel
Aryeh Samuel,
Associate Lawyer

January 2016

by David Elmaleh and Aryeh Samuel

You get to your office bright and early with a long list of tasks to complete for the day. Before even taking a sip of your morning coffee, the phone rings. A client wants your advice on something pressing. You convey your suggestions to him over the phone. Just as you are getting off the phone with that client, your colleague walks in and has a question on an area of law you specialize in. You sit and chat with your colleague and the conversation meanders from topic to topic. Just as she leaves your office, your assistant reminds you that you have a firm practice group meeting starting in 5 minutes that your attendance is required. Before you know it, your morning is gone. Does this sound familiar?

R. v. Shofman, 2015 ONSC 6876, is a cautionary tale. In a very recent summary conviction appeal decision out of the Ontario Superior Court, Justice Kenneth Campbell in Shofman stressed the importance of a lawyer's “contemporaneous, reliable, objective records.”1

The Facts

Michael Shofman was originally tried in the Ontario Court of Justice on charges of impaired driver and operating a motor vehicle with a blood-alcohol concentration greater than 80 mgs. of alcohol in 100 mls. of blood. Mr. Shofman did not testify at the trial and was convicted of the “over 80” offence. He was sentenced to a fine of $1,500.00 and a prohibition on driving for a period of one year.

Mr. Shofman appealed his conviction, arguing that he was denied the effective assistance of counsel at trial. In his appeal, Mr. Shofman claimed that he was not permitted by his defence lawyer to decide whether to testify at trial or not. He claimed that the question of testifying was never even put to him by his lawyer and had it been, he would have chosen to testify.

The evidence presented at trial was that the appellant was in a serious single motor vehicle accident in the early morning on a March day in 2010. The police had suspicions that Mr. Shofman was intoxicated, and two breathlizer tests taken confirmed that he was well over the legal limit. At the trial his counsel “effectively conceded that the appellant should be found guilty of the ‘over 80' offence.”2 Mr. Shofman never testified, and therefore was unable to tell his side of the story.

Mr. Shofman's explanation for how and why he came to blow over the legal limit is interesting, to say the least.3 He claims he began to drink after the accident, before the police arrived on-scene in order to calm his nerves and stay warm. Justice Campbell stated that “whether the appellant's testimony about his post-accident consumption of alcohol would have been accepted or not by the trial judge is an open question, but it is not for me to determine that issue”.4

The crux of the issue was whether Mr. Shofman's lawyer failed to allow Mr. Shofman to make the decision on whether to testify at his own trial and whether that failure, if it did occur, created a situation where effective assistance of counsel was lacking.

The Law

Whether ... a miscarriage of justice resulted from that incompetence.

Justice Campbell set out the legal standard governing whether effective assistance of counsel was present (or not). The convicted party must establish: 1) the factual basis underpinning the claim; 2) that the act or omission of trial counsel constituted professional incompetence; and 3) that a miscarriage of justice resulted from that incompetence.5

The question of whether a counsel performed their duty in a competent manner is measured on an “objective reasonableness standard” with a strong presumption that the lawyer's conduct fell within the broad range of reasonable professional assistance.6

Regarding the issue of an accused testifying, Justice Campbell stated, “that law is clear that defence counsel is obliged to fully and carefully advise his or her client as to whether or not they should testify..., but that the ultimate decision in this regard must be made by the accused, not his or her lawyer”.7

The Evidence (on Appeal)

Mr. Shofman testified that he never had an opportunity to provide his version of the incident to his trial counsel. He claimed that all the meetings with his lawyer were short and that the two never actually discussed the case "at any length", rather his counsel told him to "leave trail preparation to him".8 Mr. Shofman further testified that his lawyer never took any notes at any of their meetings.9

The trial counsel testified that he had a "very busy practice" and worked "70 to 80 hours a week". He claimed that he conducted something in the range of 200-225 trials each year!10 In his affidavit he testified that his meetings with the accused lasted at a minimum of 30 minutes and typically closer to an hour. He testified further that at each of these meetings the two would discuss the case and "trial strategy".11 In cross-examination the trial counsel conceded that he had no dockets and but a single page of brief, shorthand notes for the entire case.12

The Decision

Justice Campbell found that Mr. Shofman was denied the effective assistance of counsel at his trial.13 Further, His Honour found that the ineffective assistance of counsel prejudiced Mr. Shoffman because had the decision on whether to testify been left to him, he would have elected to testify.14

The Lesson

Justice Campbell urged counsel to take clear written instructions from their clients on critical issues to their cases".

The appellate judge in this case imparted strong advice to defence counsel at the end of the judgement — advice that can be applied equally to the entire legal bar, regardless of the area of practice. Justice Campbell urged counsel to adopt the "sensible practice" of taking notes of their important interactions with clients and "taking clear written instructions from their clients on critical issues to their cases".15 The judge stressed the importance of good record keeping where a lawyer has a practice focused largely on a particular kind of matter. Without contemporaneous notes it is very likely to confuse cases with each other, especially if they are similar in nature. "Detailed notes and written instructions... permit defence counsel to confidently distinguish one similar case from the next, and reliably explain how they discharged their important professional obligations in each case".16

The circumstances of the Shofman case led Justice Campbell to take the rare step of issuing a practice note for all defence counsel, not just the trial lawyer involved in the particular case. If all lawyers heed Justice Campbell's advice, we will be better lawyers as a result and our clients will be better served:

A PRACTICE NOTE FOR DEFENCE COUNSEL:

MAKE NOTES AND TAKE WRITTEN INSTRUCTIONS

[48]        I am compelled to observe that this kind difficult post-trial, appellate assessment of much earlier interactions between defence counsel and their accused client would be made much simpler and less prone to potential factual errors, if defence counsel adopted the sensible practice of taking at least some notes of their important interactions with their clients, and taking clear written instructions from their clients on critical issues in their cases, such as whether or not the accused should and would be testifying.  See M. Proulx and D. Layton, Ethics and Canadian Criminal Law (2001), at pp. 163-164; R. v. W.E.B., at para. 10, Malton v. Attia, 2015 ABQB 135 (CanLII), [2015] 4 W.W.R. 260, at paras. 39, 67, 97-103.


[49]        In the absence of such contemporaneous, reliable, objective records, in subsequent appellate court litigation regarding “ineffective assistance” claims, which may potentially unfold years later, trial counsel is left to try to recall the details of such interactions without the benefit of any type of aide-mémoire, and the appellate court is left to assess the reliability of such recollections without any objective verification. 


[50]       This recommended practice would seem to be especially helpful in circumstances where defence counsel has a legal practice focused largely upon a particular type of case (e.g. drinking and driving cases), where it would be easy for counsel to confuse one case with another, especially where counsel defends a high volume of such cases each year.  Detailed notes and written instructions would helpfully later permit defence counsel to confidently distinguish one similar case from the next, and reliably explain how they discharged their important professional obligations in each case.


1 R v. Shofman 2015 ONSC 6876 at 49.
2 Ibid at 2.
3 Ibid at 20-22.
4 Ibid at 47.
5 Ibid at 13.
6 Ibid at 14.
7 Ibid at 17.
8 Ibid at 23.
9 Ibid at 24.
10 Ibid at 30.
11 Ibid at 32.
12 Ibid at 33.
13 Ibid at 42.
14 Ibid at 43.
15 Ibid at 48.
16 Ibid at 50.


 

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