R. v. A.A. (cross-examination of trial lawyer) | Examples Of Favourable Verdicts

SUPERIOR COURT OF JUSTICE

B E T W E E N:

A.A.

-and-

HER MAJESTY THE QUEEN

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CROSS-EXAMINATION OF F. R.

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Before THE HONOURABLE MR. JUSTICE BEAULIEU, at 361 University Ave., C.R. 4-9, Toronto, on the 16th day of May, 2002.

APPEARANCES:

Mr. D. Vandenberg –for the Crown
Mr. T. K. Pain –for the Appellant

Proceedings- May 16, 2002

Thursday, May 16, 2002

— Upon commencing at 10:43 a.m.

MR. PAIN: Very briefly Your Honour, you may recall on the last date we commenced cross-examining on the affidavit. That was put over to today to allow myself to cross-examine on the affidavits filed by Mr. Vandenberg. I understand that Ms. R. is here to be cross-examined today which I’m prepared to commence with. Just before we get to that point, with Your Honour’s permission an Arabic interpreter is here and she’ll be sitting with Mr. A. and quietly interpreting the proceedings if Your Honour says that’s okay.

THE INTERPRETER: Good morning , Your Honour.

THE COURT: This is the same interpreter that was here the last time?

MR. PAIN: Yes.

THE COURT: Thank you. Mr. Vandenberg?

MR. VANDENBERG: Just a moment’s indulgence, Your Honour. If we could call Ms. R. then, Your Honour.

THE COURT: Yes.

F.R. affirmed;

CROSS-EXAMINATION BY MR. PAIN:

MR. PAIN: Thank you, Your Honour.

Q: Good morning, Ms. R.

A: Good morning.

Q: Back in 1999, you represented Mr. A. Is that correct?

A: That’s correct.

Q: And you represented him on two sets of charges?

A: Yes.

Q: And the first set had to do with criminal harassment charges, is that correct?

A: That’s correct.

Q: And the second set had to do with failing to comply with his release?

A: Yes, that’s correct.

Q: And there was another set—

A: There were two sets of those, yes.

Q: And of course you have a trial file of that matter; is that correct?

A: That’s correct.

Q: Okay. And you had an opportunity to review that trial file before you drafted and swore your affidavit; is that correct?

A: That’s correct.

Q: And did you have a chance to review that trial file before coming here today?

A: No.

Q: And throughout the course of representing Mr. A., I gather you kept a docket as well; is that correct?

A: That’s correct.

Q: I’m going to show you a document and ask you to identify it, please.

MR. VANDENBERG: I haven’t seen this document, Your Honour.

THE WITNESS: Thank you.

MR. PAIN:

Q: Could you identify that document, please?

A: This is the inner lining of the file, Mr. A.’s file, on which I or whoever worked on the file would make a notation of the date and what was done.

Q: Okay. And I’m looking at the handwriting. Is that your handwriting?

A: Some of it is my handwriting. Some of it is somebody else’s handwriting.

Q: Okay. And it’s basically an account of court appearances and meetings with the client and other things done on the file; would that be accurate to say?

A: That’s correct.

Q: Okay. And it’s a two page document. Can you identify what the second page is?

A: The second page is the Legal Aid account typed by our secretary, which sets out basically what was done, the date it was done, and how much the fee was for what was done.

Q: And would you have reviewed that document before it was submitted?

A: Yes.

MR. PAIN: I’m going to ask Your Honour that that document be marked as an exhibit, please.

THE COURT: Mr. Vandenberg?

MR. VANDENBERG: No objection.

THE COURT: I don’t believe there were any previous exhibits, were there?

MR. PAIN: No, there aren’t.

THE COURT: All right. Exhibit 1.

–EXHIBIT 1: Two page docket

MR. PAIN:

Q: Ms. R., if you’ll bear with me for one minute, I want to show you another document – which I’ll provide a copy to my friend – and ask you to identify these as well please.

A: These are notes. It’s in my handwriting, notes that I’ve made. The first stapled set of papers that you’ve given me, it seems that this was an interview I’d done with Mr. A. It’s not dated. I can’t be sure if this was when it was done. And the second piece of paper that you’ve given me is again notes that I’ve made and it’s point form of what I would use. Normally when I do an examination-in-chief of a client I’d write something down in point form. I don’t generally write down full questions and this is what I use as a plan when I’m doing examination-in-chief.

Q: For examining witnesses.

A: That’s correct.

Q: And the first document that you referred to, the two-page stapled document there, would that be an examination-in-chief for cross-examining that complainant? Just briefly look it over. Perhaps some of the questions might refresh your memory.

A: Yeah, actually it could be. Again, I don’t have titled or marked, but it could be for cross-examining the complainant in this matter.

Q: And would that be pertaining to the first set of charges? Again, if you need to look over some of the notes you’ve made there…

A: Yes, this would be with respect to the criminal harassment charges.

Q: And that’s the first set of charges?

A: That’s correct.

Q: And if you could look again at the second sheet you made up there for Mr. A., and that would be pertaining to the first set of charges as well?

A: Well, yes, but I think some of the parts could be used for the failing to comply as well.

Q: Certainly a lot of the background information and things about the relationship, but you’d agree with me there are really no questions there regarding his understanding of the undertaking he signed or promise to appear or anything like that?

A: No, but generally on a failing to comply trial because I’ve done many of them I wouldn’t generally write down questions such as those in my notes but, yes, I could use some of this portion for a failing to comply trial as well, but you are right. There are no questions that say whether he understood the recognizance or not.

Q: Okay. And now the first part of it, the cross-examination sheet for the complainant, why did you do that up? Is it your general practice to make up something like this before you go into trial to cross-examine a witness?

A: Yes.

Q: And would you generally go into trial without one? Assuming you know who the witnesses are going to be and the nature of the case, would you go into trial without one?

A: It depends on what the trial is about. I generally have notes throughout my file, but again, on a failing to comply, fail to appear matter, because the questions are fairly standard I may not make full cross-examination notes. For this one, if there were to be used for a criminal harassment trial, yes – I mean, sorry, I should say if I were to use this for a criminal harassment trial this would probably be the kind of notations I would make. Again, I can’t be sure. It’s not dated. This matter goes back three years ago.

Q: Okay. And can you just confirm that both the sheets, it’s your handwriting?

A: Yes, it is.

MR. PAIN: May I ask, Your Honour, that those two sheets be marked as exhibits as well, please.

THE COURT: Mr. Vandenberg?

MR. VANDENBERG: No objection.

THE COURT: All right. Exahibit 2-A and B.

— EXHIBIT 2-A: Handwritten notes of F.R.

— EXHIBIT 2-B: Handwritten notes of F.R.

MR. PAIN:

Q: Now just thinking back to that first set of charges, would you agree with me that the first set of charges was basically a one witness case; basically his wife claiming what it was that she was claiming?

A: Yes, that’s correct.

Q: Now, jumping over to the second set of charges, the failing to comply charges, in that case if you’ll recall there was the daughter of the complainant. She was witness as well; do you recall that?

A: I don’t recall but that’s probably…
Q: And certainly the officer who’d initially arrested Mr. A. would have been a witness?

A: That’s correct.

Q: And would you agree with me that you’ve made no examination-in-chief pertaining to either of those witnesses, either the daughter or the police officer?

A: Again, I don’t have my file here. If you’re saying that they’re not in the file then it’s a possibility. Again, with criminal files there’s a tendency that you make notations. Often I try and make an effort to keep all the notations I make within the file. It’s not necessary that notes that I make go back into the file. This matter was resolved that day. I believe it was the day, June 17th, it was resolved that day. More than likely whatsoever notes I made went in the file but again it’s not absolutely guaranteed that if I had made notes the night before they could have been left in my briefcase, they could have been thrown out. It’s not absolute.

Q: Is it your general practice that any notes you make go into file?

A: Generally, yes. I try and make an effort to do that. Again, depending on how many cases I have, whether it’s that day or on the following day I’ll try to make an effort to put all the proper notes into the proper files.

Q: Okay. And in what circumstances would notes just end up going into the garbage can?

A: If notes have stayed in my briefcase for a few weeks, the file has already been put away, if the matter was resolved, if again what you’re referring to as the cross-examination notes, I may end up using those same cross-examination notes. I may file them and use them. If they were used for example for a failing to comply I may file them and use them as a template for somebody else’s cross-examination.

Q: Now, June 17th, you go to court that day?

A: That’s correct.

Q: And it’s set for trial?

A: Yes.

Q: So you would agree with me that if you had made notes to cross-examine the officer and daughter and any other witnesses you would have taken them to court with you?

A: That’s correct.

Q: And the natural thing to do is to slide them into the file?

A: Again, yes, that’s correct.

Q: And then the file goes back to the office and the account is done?

A: That’s correct.

Q: And you’d agree with me if I suggest to you that there were no examination or cross-examination notes in the file would you agree that that’s likely correct?

A: Yes, that’s correct if you say so.

Q: Okay. And the second set of charges, there was videotaped evidence; do you recall that?

A: Yes, yes.

Q: And you didn’t view that, did you?

A: I believe I would have. I don’t recall. If it was in the file then I would have viewed it.

Q: Well, would the procedure be that they inform you that there’s a videotape and then you have to make arrangements to get the videotape, view it and –

A: That’s correct. I don’t recall a videotape to be honest. Again, this was a few years ago. I don’t recall a videotape. If there were to be a videotape in the file I would have viewed it.

Q: And do you recall if there was an audiotape?

A: I recall audiotapes, yes.

Q: And do you recall whether you reviewed the audiotapes?

A: I do recall reviewing the audiotapes. I believe I had someone transcribe them for me. I vaguely recollect that. I usually get a student or somebody to listen to the audios and transcribe them. That’s my general practice.

Q: If I were to suggest to you that there were no transcripts of any audiotapes in the file, how would you respond to that?

A: I can’t see there not being, but again you have full copy of the file. I don’t have the file with me today. I don’t know.

Q: Okay. And the videotape and the audiotape, in relation to June 17, the second trial date, when would you have reviewed one or both of those?

A: As a general practice I tend to prep a case the night before, but I have a general feel for the case usually months before that if I need to do research or whatever that would be done well before, but it’s hard to say.

Q: And naturally, you would expect to get paid for the work you do on a file whether it’s private file or a Legal Aid file; would that be correct?

A: That’s correct, but again, if you give me my docket page I can tell you right now I don’t make a note of every single phone call I make. As you’re well aware, Legal Aid rates are quite low. I know what my end result will be, what I get from them, and perhaps it’s wrong of me not to keep an accurate account of when I speak to the client, but I can tell you right now it happens that I wouldn’t make an account or a notation of every single telephone call.

Q: Okay. So looking at Exhibit 1—

A: Yes.

Q: — the docket that was entered, you’d agree with me that there’s no entry there indicating that you ever reviewed a videotape or an audiotape?

A: No.

Q: And you mentioned earlier that certainly you’re not going to sit and docket all the telephone calls because to docket all the entries and add them all up and have them typed up, it’s a big nuisance; correct?

A: That’s correct.

Q: But certainly reviewing a videotape or an audiotape; that could add up to half an hour or an hour?

A: That’s correct.

Q: And you certainly would be entitled to compensation for that from Legal Aid?

A: Yes, that’s correct.

Q: Would you not docket that kind of thing when you spend half an hour doing an activity like that?

A: Yes, I would.

Q: On the first trial date, June 1 of 1999, on that day I believe the Crown advised you that they were going to bring an application, either similar fact evidence or a discreditable conduct application?

A: I vaguely remember that. Again, I don’t have notes in the file as to what exactly – when I was preparing my affidavit I don’t have notes in the file as to what exactly they wanted to – what kind of application they wanted to bring. I did ask I believe it was Mr. Paisely (ph). I did make a phone call to him just to refresh my memory. He didn’t have any notations in his file either as to what application they wanted to bring. But I do recall that there was an application. I did oppose it. They wanted to have an adjournment, the Crown wanted to have an adjournment to bring that application. The adjournment was granted. That’s about what my recollection of what happened that day was.

Q: Now, this application, would you agree with me that on June 1st it’s basically sprung on you?

A: That’s correct.

Q: And then the matter goes over to June 17th?

A: Yes, that’s correct.

Q: And you expected on June 17th if the trial’s going ahead that this application is going to be heard as well? The Crown’s not saying it’s abandoning the application?

A: That’s correct, but I believe on June – I believe that was June 1st, right, the first trial date, I believe on that day the Crown had approached me as well to discuss resolving the matter and we had the first time some discussions – I shouldn’t say first time. We had discussions that day with respect to resolving the matter which I then advised Mr. A. as to what our discussions were.

Q: Okay. And I’m sorry. How does that relate to the application being heard on the 17th?

A: Well, if your asking me I’m assuming this is what you’re getting at, is that the June 17th application, that the matter was going ahead to trial on June 17th. What I’m assuming you know is that on June 1st when discussions were made as to a resolution I had let Mr. A. know. As well, it was my understanding that he was considering it. In my opinion, it was a good resolution and, I mean, I know you’re going to be asking further questions, but I’ll just leave it at that. That’s what …

Q: Well, are you suggesting on June 1st that Mr. A. told you that he would take whatever deal the Crown is offering?

A: No, I’m not suggesting that at all.

Q: At that point, then, as far as you know on June 1st the trial’s proceeding on June 17th?

A: That’s correct.

Q: And the Crown’s going to bring this application?

A: That’s correct.

Q: Which had been sprung on you?

A: That’s right.

Q: And would it be natural for you to do some research between the 1st and the 17th to prepare for that application?

A: Yes.

Q: And how would you respond if I were to suggest to you that there were no research notes or evidence pertaining to this application –

A: There are no research notes but again, Mr. Pain, I can tell you right now if you want to look at a few other of my files, if I were to do research I generally would not have left it in the file. I would have put it into a file marked whatever the research I did and put it into a general filing cabinet where if anybody were to need that type of research in the future they would be able to have easy access to it instead of having to do that research over again. I generally don’t keep case law in my files for the same reason. It doesn’t make sense to re-photocopy all the case law when I can be using that same case law again at some future date. But I agree with you, it’s not in my docket. Again, I don’t know why it’s not. More than likely I did probably do research on this but I may not have made a notation.

Q: Okay. Now, the research you say that you probably purged from your file, besides that research would there not be notes that you made specific to this file?

A: Yes, that’s correct, there would be, but again I probably would have put that into the general filing cabinet. Again, if anybody were to make submissions – we have two other lawyers at the office as well. At that time there was one. Now there’s another one. If anybody were to need arguments or to make submissions on the same issue there would be some sort of a template, some sort of a rough draft already there. And this is general practice of mine that I do this.

Q: And again, would you not docket all that work you do on research like that?

A: I would and I don’t know why it’s not docketed.

Q: Well, would you agree with me that basically from the first day Mr. A. told you that he was not going to plead guilty?

A: That’s correct.

Q: And two trial dates were set on that basis?

A: That’s correct.

Q: And on the 15th of March, if you want to look at your dockets to refresh your memory, you had a judicial pretrial scheduled on that date?

A: That’s correct.

Q: And I believe you ended up only having a pretrial for whatever reason?

A: Yes. I believe it was an administrative error on their part, but yes, that’s correct.

Q: And would you agree with me that on that day you never discussed a resolution with the Crown?

A: I don’t have it marked here as having discussed a resolution. I vaguely recollect having this pretrial, but I believe the Crown put forward a position which generally they do and they had asked me whether I wanted to resolve this matter and at that time I flatly said no, knowing my client’s position.

Q: And his position was no way to pleading guilty?

A: That’s right.

Q: And certainly up to that point you hadn’t given him any guarantees that he wouldn’t go to jail?

A: I did not, no. I never give a guarantee.

Q: You can’t.

A: Yes. I can’t.

Q: Yet he still told you that there was no way that he was going to plead guilty; that was his position?

A: Yes, at that time, yes.

Q: And then following that, on June 1 you go for trial?

A: That’s correct.

Q: Your client’s there of course?

A: That’s correct.

Q: And the trial didn’t proceed?

A: That’s correct. The Crown wanted an adjournment for their application which I opposed. I was prepared for trial that day.

Q: Now, are you certain that you opposed that application for adjournment?

A: I’m quite certain. Again, I don’t have any notes.

Q: And had you decided to consent to such an adjournment, would you have at least discussed that with your client?

A: Yes.

Q: And certainly some of the issues you might discuss would be the pros and cons of having two separate trials versus having two matters heard the same day in front of the same judge?

A: Yes.

Q: And would you agree with me that you never had any sort of discussion like that with Mr. A.?

A: You’re asking me whether I had any discussion with Mr. A. about consenting to an adjournment or not?

Q: Yes.

A: I can’t recollect exactly to Mr. A.’s situation, but as a general practice I do discuss things with my clients and that would be one of the things I would have discussed generally with a client.

Q: You don’t have any –

A: But I don’t have –

THE COURT: Counsel, she indicated at least three or four times, I believe three or four times, that she opposed the adjournment, so where are we going with all of this?

MR. PAIN: Fair enough, Your Honour.

Q: I’ll show you Mr. A.’s affidavit. I’m going to bring it up. Exhibit “A” in Mr. A.’s affidavit, it’s a copy of the information pertaining to the first set of charges, and the entry on the second page of that exhibit, would you mind reading that out?

A: Yes. “June 1st, motion for adjournment granted on consent”.

Q: Okay. So is it possible that you did consent to that adjournment application?

A: That’s what the information says. Again, what I remember is that I wanted to oppose. Maybe I didn’t. Again I don’t have any notes to that effect in my file. I do remember having – when I prepared my affidavit I do remember having a notation of what my arguments should be when I oppose the adjournment which I quickly wrote I believe that day in court. I believe you have a copy of that as well.

Q: I’m sorry?

A: Some notes I made with respect to opposing an adjournment.

Q: Okay.

A: So from that I gather that I opposed the adjournment but now you’re showing me information that says it’s on consent. I don’t know what to say. I thought I had but maybe I hadn’t. I don’t remember.

Q: And again, you would have reviewed your file before drafting your affidavit; is that correct?

A: That’s correct, yes.

Q: Okay. I’m showing you another document which I’m providing a copy to my friend. I’d ask you to read it over and tell me if you can identify that, please.

A: It’s a memo to A.B., who is the other lawyer in the office for whom I was doing agency work with respect to this matter. Would you like me to read it?

Q: Well, okay. Did you make this up? Did you type up this memo?

A: It seems like I did. It’s from me. It’s something that I would type, yes.

Q: And it says June 2nd, 1999. That would have been the day that you typed it?

A: Yes.

Q: And of course that’s the day right after the first trial date?

A: Right.

Q: And would you mind reading out the first sentence, please?

A. Yes.

“I attended before His Honour, Judge Moore (ph), yesterday and consented to have the trial adjourned to June 17th, at which time both matters would be heard.”

When I prepared my affidavit I didn’t see this in the file and I don’t know why it’s here and why it wasn’t in my file but I did not see it. Otherwise, I would have made my affidavit appropriately.

Q: So do you now recall consenting to that adjournment?

A: Well, again, I don’t recall consenting to it, but it’s written here that I did so I must have.

MR. PAIN: Can I ask, Your Honour, that that be marked as an exhibit as well, please.

THE COURT: Mr. Vandenberg?

MR. VANDENBERG: No objection.

THE COURT: Exhibit 3.

–EXHIBIT 3: Memo prepared By F.R.

THE WITNESS: In fact, there’s a lot of information in this, and I’m reading it very quickly, that I could have used in my affidavit, but … I didn’t have this sheet of paper when I was preparing my affidavit. It was not in the file and for that reason, I don’t know, I did not photocopy the file when it was given to you. It was somebody I the office that did it. This file’s been sitting in A.B.’s office for quite some time. Maybe the person that photocopied it didn’t put it together properly.

MR. PAIN:

Q: Well, did you not look at the original file before you prepared your affidavit?

A: I did have the original file but again it was a photocopy of what – I can’t recall if it was a photocopy of what was given to you. Somebody went through the file and photocopied it and provided you with a set so I don’t know whether it was put back into its original position the way Id left it.

Q: Now, looking at the third paragraph of Exhibit 3, there’s a bracketed part right near the last sentence. Actually the last sentence is the bracketed part.

It says:

“Note that I have not seen either the video or heard the audio but arrangements can be made for me to get them.”

A: Right.

Q: So is it possible that you didn’t view or listen to either of those?

A: This would make it obvious, yes, that I did not see it.

Q: And how would you explain your earlier testimony about a transcript?

A: Well, Mr. Pain, I’m telling you what I do as a general practice. This case is from three years ago. Generally as a practice I tend to do that. I don’t know whether or not and I can’t say as an absolute for anything that you’ve been asking me what happened, what transpired, whether it was done or not. If you had given me this before we could have discussed this and that, yes, I did not see the video. But I can tell you right now for your future questions as well I don’t recall as an absolute what happened. This is from three years ago. I’ve had much happen in my life in the last three years. I can’t recall exactly what happened, when it happened. I’m using what you’re giving me to refresh my memory. I have my affidavit to refresh my memory. I haven’t viewed the file prior to attending today except for when I prepared my affidavit back in September, October.

Q: Certainly you remember the direction that Mr. A. signed?

A: Yes, I do.

Q: That is actually Exhibit “C” in Mr. A.’s affidavit. I think I may have an extra copy that I’m going to ask you to refer to.

In your direction – now, this is something you typed up yourself; is that correct?

A: That’s correct.

Q: And would you have typed this up – when would you have typed this up in relation to your meeting with Mr. A.?

A: I believe in my affidavit I set out that I typed it right then and there. I can advice you, I have again templates of these on my laptop or previous clients or I have one template and I would use that just to follow to make sure I don’t forget anything. This one I recall I had typed in front of Mr. A. and I went through it with him.

Q: I’m sorry. So are you saying that —

A: It was typed in front of Mr. A. –

Q: Okay.

A: — when he was present in my office, but I could have had something, I typed over something.

Q: Like a template that’s been adjusted?

A: That’s correct, yes.

Q: Fair enough. Now, in this direction, the third paragraph in, it states:

“ I have been advised that on the first and second charge I have a viable defence.”

A: That’s right.

Q: And would you agree with me that that could be described as a good possibility of winning?

A: I wouldn’t say winning, but a case can be presented.

Q: Okay. And is that actually the advice you gave him regarding the first set of charges?

A: That’s correct.

Q: I’m going to refer you back to exhibit 3 that we had just marked, your memo from June the 2nd, 1999.

A: Yes.

Q: The second last paragraph, third sentence.

It says:

“I told him that if he goes ahead with the trial there’s a good possibility that he may lose on all counts.”

Would you agree with me that that’s inconsistent with what it says here in the direction?

A: Yeah. I mean, I wouldn’t say inconsistent, but it’s not – I don’t believe in the direction I state that he has a chance of winning. I just state that there’s a viable defence, that’s something that I could put forward to the court. Again, Mr. Pain, I’m sure you know as well as I do that when you have a case that you may think is a complete winner there are times that you end up losing. I can’t guarantee a win.

Q: I understand that. I’m just wondering how do you explain to a client, how can you say to a client you have a viable defence, and then turn around and say there’s a good possibility that you may lose on all counts and –

THE COURT: did she say there’s a good possibility he may lose on all counts or – which one is it – that if he goes to trial he may lose?

MR. PAIN: There’s a good possibility that he may lose on all counts. I’m sorry, Your Honour.

THE COURT: That’s not what you said the first time.

MR. PAIN: Okay. I was improperly paraphrasing. It says there’s a good possibility –

THE COURT: Well, if your putting a question specifically to a witness, Counsel, you must know that by now, you don’t paraphrase.

MR. PAIN: I apologize, Your Honour.

THE COURT: All right.

MR. PAIN:

Q: Regarding the second set of charges, on the signed direction, the third paragraph in, second sentence, states:

“However, my lawyers have advised me that the evidence on the third and fourth charges are overwhelming.”

A: I’m sorry. I don’t know where you’re reading from.

Q: I’m sorry. The direction. The signed direction.

A: What paragraph?

Q: Fourth paragraph.

A: Yeah, I got it.

Q: Do you see the sentence?

A: Yes.

Q: I’m sorry. Third paragraph, not fourth:

“…my lawyers have advised me that the evidence on the third and fourth charges are overwhelming.”

A: Are you referring to whether those charges are referring to fail to comply?

Q: The fail to comply.

A: Yeah. I think that looks like it’s an error meaning the third and fourth charges being both fail to complies as opposed to number three and four.

Q: Okay. So you’re saying it’s the fails to comply?

A: It’s the fails to complies, yes.

Q: And that was the advice that you gave to him yet you hadn’t reviewed the videotape or the audiotape?

A: No.

Q: It’s quite possible that the videotape or the audiotape would have been –

A: If I recall in the – again, I can’t be sure but in the disclosure there was some notes on the video and audiotape, but again, I can’t be sure. It sounds familiar, but, yes. No, I did not review the video or audio.

Q: What did you tell Mr. A. about the possibility of going to jail?

A: In what reference?

Q: In terms of if he had gone for a trial and lost.

A: I mean, in this situation I know there was a possibility of jail time after conviction so, yes, I would advise a client of that possibility. I think it would be negligent for me not to do so. And with Mr. A. I did that as well. Again, I don’t recollect exactly what I told him at that time.

Q: Now, would it be possible that you told him that he may very well be looking at a jail sentence and there’s a good possibility that he may be spending a good time in jail?

A: You’re reading from my memo. That’s what I wrote, yes. Again, that’s what I wrote but I don’t recollect exactly what I said.

Q: Going back to June1st, on that day at some point you speak to the Crown and get a position from the Crown regarding a possible resolution?

A: I believe we had discussions with the Crown with respect to the application and at that time the Crown brought forward a resolution which was different from what I’d heard before.

Q: Okay. And what you were told on that day, you conveyed that to your client?

A: That’s correct.

Q: And it was your understanding that that was a joint submission?

A: That’s correct.

Q: And would you agree with me that that – – well, was your understanding that it’s a take it or leave it type of thing meaning you and the Crown go in and ask the judge for the same thing and if you’re agreeing to do that then we’ll resolve it on that basis. If not, then there’s really no offer from the Crown?

A: That was my understanding.

Q: Okay. And that’s what you took back to the client?

A: That’s correct.

Q: And based on that understanding, you didn’t discuss other possible sentences with him, lower sentences that were available?

A: Well, obviously I did discuss with the client that a joint submission would mean that we’re putting forward the same – – agreeing to the same conclusion, resolution. I probably did not discuss with the client what lower options were available because I didn’t think – – there was no option for open submissions.

Q: Okay. And what was your understanding of what the Crown’s offer was? What were they asking for?

A: I don’t recall. I have written down here in the direction and that’s what would be my understanding. I don’t have an independent recollection of what was offered.

Q: Okay: “Offering a 90 day conditional sentence with very few terms.” Does that sound about right?

A: That sounds about right, yes.

Q: Okay. And would you agree with me that you never discussed probation with Mr. A.?

A: I don’t recall.

Q: I’m going to show you another document in your file and ask you to identify it, please. A copy to my friend. Do you recognize this document?

A: This is the Crown, and I don’t recall which Crown it was, but she wrote this out in court. There was another case before the court and I think she wrote it out then and handed it to me in the courtroom.

Q: Okay. And this obviously has to do with Mr. A.’s matter?

A: That’s correct.

Q: And in the beginning there’s some discussion about this discreditable conduct application?

A: Right.

Q: And then it goes on to discuss a possible resolution; is that correct?

A: Right.

Q: Get to page 3, the last page, it says there:

“If your client wants to plead I can agree to a conditional sentence of 90 days and probation of three years, a section 109 order, and get rid of both sets of charges.”

A: That’s what’s written, yes.

Q: And would you agree with me that it doesn’t state that it has to be a joint submission?

A: No, but again, this was written very quickly by the Crown Attorney. We probably had discussions after that, and I’m sure we did, to clarify what exactly was being offered. This was just something that she quickly wrote. She couldn’t speak to me in court because there was another case going on.

Q: But you don’t remember for certain?

A: I don’t remember for certain, no, but I wouldn’t go along with a joint submission if there was the possibility of open submissions.

Q: Is it possible you didn’t discuss an open submission with her?

A: I don’t have an independent recollection, but again as a general practice I’m telling you that I would try to do the best for my client and I wouldn’t generally go with a joint submission if I could get something lower on an open submission.

Q: I’m going to June 17th. You recall the proceedings on that date?

A: Yes.

Q: Mr. A. was arraigned, and would you agree with me that there was a long pause between arraignment and anything being said?

A: I vaguely recall that, yes.

Q: And then following that, you were asked by the judge to step outside with your client?

A: Yes.

Q: Okay. And was there some discussion between you and Mr. A. that he didn’t want to go through with the plea?

A: Mr. A. – again this was – I vaguely remember this, but Mr. A. and I had discussions outside and this goes back to discussions we had the day before. Mr. A. and I discussed what his position was. He advised me after I went through everything with him that, yes, he wanted to plead guilty the next day. He changed his mind in that he didn’t want to go to jail but I explained to him that in essence he would be serving his custodial sentence at home and unless he breached any conditions would he have to go to jail. In basic terms I explained that to him again outside. He just went on and on about how he didn’t want to go to jail and to be honest I was very frustrated with him. I walked away from him to give him some time to think. At that point he was – I don’t quite remember exactly, but I remember I was angry at the whole – I was very frustrated, he was angry, and then I thought maybe it would be best if Mr. B. represented him at that point. I remember telephoning Mr. B. at that point and deciding whether we should ask for an adjournment. I vaguely remember all of this and in the end when I did com back Mr. A. agreed to go ahead with a guilty plea when I came back to the courtroom.

Q: Okay. So you stepped out of the courtroom at the request of the judge?

A: That’s right.

Q: you have this discussion with Mr. A.?

A: Right.

Q: He’s upset?

A: Yes.

Q: You’re upset.

A: Right

Q: And you indicate to him that you don’t want to represent him anymore and maybe Mr. B. should do it?

A: Well, as much as possible I’m trying not to – the communications that I has with Mr. A., I found him to be very – he’d question everything with me which is fine if it wasn’t so belittling to some extent, and I had talked to Mr. B. about this as well that I don’t think he feels that a woman can represent him and I felt that that again came outside the courtroom hence my anger, but – I’m sorry, I missed your question. I think I went too far. What was your question?

Q: My question related to whether you had told him that you didn’t want to represent him anymore.

A: Right. So at that point that also came out, that if he didn’t feel that I could do the job then let’s get Mr. B. But I do recall telling him as well that if he wanted to have a trial then let’s go do this trial now and get it over with because at the end of the day, Mr. Pain, this is a Legal Aid file. I get more money out of a trial in any event. If he wanted a trial, if that’s what he wanted, I said let’s do it. He again said to me: I don’t want to go to jail. I said I can’t guarantee that, I can’t guarantee a win for Mr. A. or anyone else I cannot do that. All these discussion were made at that time outside the courtroom. Again, I remember walking away. I don’t know whether it was before or after I walked away, the discussions we had, but when I came back to him he was ready to go inside and plead guilty.

Q: And this was after you’d suggested to him that perhaps you shouldn’t be representing him and then you go off to call Mr. B.

A: Well, if you’re implying that I threatened to leave him at that point, that’s not what happened. I had told him that I could ask for an adjournment and we could get Mr. B. here if he feels more comfortable with Mr. B. I got the impression from him that he was not comfortable with my representation.

Q: Okay. Did the Crown at any point mention to you that they would bring an application to revoke his bail if he didn’t deal with the matter on the 17th?

A: I don’t recall.

Q: You don’t recall if they mentioned that to you?

A: I don’t recall.

Q: Would it be your general practice it they had that that would be something you’d convey back to the client?

A: Yes.

Q: Mr. A.’s affidavit, Exhibit “D”, there’s a handwritten note there. Let me show it to you. Would you mind just reading that, the left side of it, please

A: The left side?

Q: Yes.

A: It’s in my handwriting but it’s very scribbled:

“ Position never been in before. I had a chance to speak to Mr. A. at my office at which time I spent considerable time with him and I was under the understanding that we both understood each other. Today I’m not so sure. I am –“

Q: “Unable”?

A: Could be “unable”.

“ –to get clear instructions from client and I don’t believe…”

It’s left like that.

Q: Okay. Can you identify that document?

A: It’s my handwriting and it’s scribbled very quickly but that’s about it, and it’s incomplete.

Q: Would that have been made on the 17th of June?

A: More than likely, but again it’s incomplete so I don’t know in what context it was written.

Q: You have no recollection?

A: No recollection.

MR. PAIN: Those are all my questions, your Honour. Thank you.

THE COURT: Thank you.