Tel: (844) 395-4084 x223 | email@example.com
Philip Campbell is a founding partner of Lockyer Campbell Posner. A graduate of the University of Toronto Faculty of Law, he was a partner in Copeland Liss Campbell following his 1984 call to the bar and then in the Criminal Division of Sack Goldblatt Mitchell from 2000 to 2003. He and James Lockyer formed Lockyer Campbell in 2003 in order to pursue their ground-breaking work in the reversal of wrongful convictions. Besides his extensive work in that area, Mr. Campbell maintains a trial and appellate practice with a focus on serious and complex litigation.
Mr. Campbell has broad experience in the defence of homicide prosecutions, sexual assault and narcotics cases, white collar crimes, professional misconduct and matters with sophisticated constitutional issues. He has acted on a number of extradition cases and maintains a special interest in that challenging area of the law.
Mr. Campbell is active on the Case Review Committee of Innocence Canada and has served as counsel on a number of the organization’s most challenging cases. He is also an active member of the Criminal Lawyers Association and has represented the CLA as an intervenor in several important cases, including R. v. Hart, a judgment which established a new test for the admission of evidence acquired pursuant to “Mr. Big” undercover operations.
He has acted as counsel on cases that shape Canadian law in a number of areas including racial profiling; double jeopardy; the admissibility of fresh evidence on appeal; the corroboration of unreliable witnesses; extradition to countries that abuse human rights; the mental state required to prove sexual assault; the use of hearsay evidence; the definition of planning and deliberation; the appellate test for unreasonable verdicts; the law of unconstitutional search and seizure; the legal standard for constructive murder; judicial bias and interference; conflict of interest on the part of lawyers; breach of trust by public officials; and release on bail of the wrongly convicted. His clients are from all strata of society, from impoverished youth charged with drug offences, to bikers and gang members charged with murder, to police officers and lawyers charged with violations of duty.
Mr. Campbell has written and spoken at a wide range of legal conferences and symposia, including the Canadian Bar Association, the National Criminal Law Program, the Law Society of Upper Canada, the annual conference of Superior Court judges and the Criminal Lawyers Association. He has been an instructor at the University of Toronto Centre of Criminology and has lectured at the University of Toronto Law School, Osgoode Hall Law School, University of Ottawa Law School and Queens University Law School.
In his free time, Mr. Campbell rides his motorcycle with a club known as the Illegals, scuba dives, plays ping pong and poker, meets monthly with his book club, and spends time with family and friends at his vacation home on the Greek Island of Paros.
This was a special reference by the Minister of Justice to the Ontario Court of Appeal of a 1959 murder conviction which was quashed by the Court after a lengthy evidentiary hearing and two weeks of legal argument. The case put to rest one of Canada’s longest and most controversial cases of wrongful conviction. Case Law Article
This successful Ministerial review of a 33-year old conviction on behalf of a dying man turned on proof that key exculpatory evidence was not disclosed by the Crown at trial. Article
The Minister of Justice overturned a 1987 murder conviction in 2004 based on new evidence. Article
In this case, on a legally complex issue, the Supreme Court of Canada reaffirmed the application of issue estoppel in Canadian criminal law. Case Law
The Ontario Court of Appeal and then the Supreme Court of Canada upheld a challenge to previous authority on how the issue of causation should be left to juries in murder cases and made new law on whether attempted murder is an included offence on a charge of murder. Case Law
A man who was convicted of murder based on spurious allegations that he had cut his hair to disguise himself was exonerated when fresh evidence established that hairs relied on by the Crown came from his beard, not his head. Case Law
The Court of Appeal for Ontario established that a search conducted pursuant to a warrant for an incorrect address must be halted and a new warrant obtained. Case Law
A father was accused of first degree murder in the killing of his young son. He was found not criminally responsible and remanded to a psychiatric hospital from which he was later absolutely discharged. Article
A wrongful conviction for sexual assault of a man against his former girlfriend was quashed as an unreasonable verdict. An acquittal was entered.
The Court of Appeal for Ontario closely analyzed very complex forensic neuropathology issues, including fresh evidence on appeal, in a case where a single blow was alleged to have caused death in an altercation at a bar. The Court concluded that the jury’s guilty verdict of murder was unsustainable and ordered a new trial. Case Law Article
A conviction for sexual assault was quashed on appeal on the basis that the trial judge had misapprehended the evidence of the complainant. A new trial was ordered.
In 2001 Wade Skiffington was found guilty of the 1994 murder of his fiancée, Wanda Martin, following the employment of the Mr. Big undercover investigative technique. In 2019 he was released from custody after the Minister of Justice concluded his case might be a miscarriage of justice and a justice of the British Columbia Supreme Court granted him bail. The case remains before the Minsiter. Case Law Article
On February 28, 2019 the Miister of Justice ordered a new trial in a 1999 conviction for murder after years of post-conviction litigation. The next day, Mr. Assoun was acquitted and exonerated in the Nova Scotia Supreme Court when the Crown acknowledged that on the evidence available, he could not be convicted by a reasonable jury. Video
The accused was tried in 2018 for the first degree murder of his wife and six counts of attempted murder in relation to a fire he set in his family home. The jury at trial, after five days of deliberation, could not reach a verdict on the murder charge and one attempted murder count but acquitted the accused of five counts of attempted murder. He was subsequently permitted by the Crown to plead guilty to manslaughter.
A youth who killed an officer by unlawfully driving a vehicle that rolled over was convicted at trial of first degree murder. In 2019, the Court of Appeal for Ontario directed a new trial on the basis of legal error in the jury instruction. The client was then permitted to plead guilty to manslaughter for a non-custodial sentence. Case Law Article Article
A young man was convicted of first degree murder in a stabbing after an altercation in a bar. In 2019, the Court of Appeal for Ontario concluded that there was no evidence on which to base a finding of planning and deliberation and substituted a verdict of second degree murder. Mr. Hafizi’s parole ineligibility was subsequently reduced from 25 years to 11 years. Case Law Article
A first degree murder conviction was quashed and a new trial ordered on appeal because the trial judge unfairly expressed his opinion to the jury on a factual matter of importance to the case—whether a videotape showed a handgun in the possession of the accused. The Crown sought leave to appeal to the Supreme Court of Canada but was refused. Case Law
A man who shot his wife outside their home, following an argument, was charged with first degree murder. Following a contested preliminary inquiry, the presiding judge ruled that the evidence supported only a charge of second degree murder, to which the accused later pled guilty for the minimum period of parole ineligibility. Article Article
A man was convicted of two sexual offences but acquitted of sexual assault on the same allegations. The Court of Appeal, in 2019, quashed the two convictions and entered acquittals on the basis that the verdicts were inconsistent and unreasonable. The Crown has appealed to the Supreme Court of Canada. Case Law Article
Two men were convicted of first degree murder by planning and deliberation in a public shooting. In 2020, the Court of Appeal for Ontario quashed the first degree murder convictions on the basis that they were unreasonable and substituted convictions for second degree murder. Case Law
An OPP officer was convicted of two counts of breach of trust for disclosing confidential investigative information to her fiancé. The Court of Appeal for Ontario, in 2020, quashed both convictions, entering an acquittal on one and directing a new trial on the other based on errors related to the law of entrapment and the direction of the jury on the principle of proof beyond a reasonable doubt. Case Law Article
Reflections on the Role of the Ethical Advisor
One of the privileges – and obligations – of encroaching seniority at the criminal bar is answering the call from a younger lawyer seeking advice on an ethical dilemma. The request may come from a member of one’s own firm or from someone with whom the senior lawyer has worked in the past. It often comes during the course of a trial, sometimes about an issue that has arisen in the morning and that counsel has been granted an afternoon’s recess to ponder or seek advice upon. The inquiry may come with an edge of anxiety at the risk of professional discipline or rebuke from a judge or about the obligation to withdraw from a desirable file. These situations demand a lot of the lawyer turned to for advice.1
The call may lead to a consultation in the advisor’s office where the lawyer is generally seeking two things. The first is advice: “Tell me what I should do”. The second goal is usually implicit – the lawyer hopes to have the kind of protection afforded by having consulted senior counsel if they are ever called to account for their ethical decision-making. The advisor may expect that a detailed summary of the advice given will be placed in the lawyer’s file and perhaps summarized for a judge. While it is possible that no client file will be opened by the advisor2 this is a high-stakes consultation and all involved should be conscious of its significance. This paper is a short digest of my reflections on how to think about and characterize the advisor-lawyer relationship and on some of the consequences of the model I commend. It is drawn much more from experience than from scholarship on the subject, of which there is little.
The Lawyer is a Client with Interests at Stake
It is important at the outset to think about the lawyer calling the advisor as a “client” of the advisor. The Ontario Rules of Professional Conduct (hereinafter “the Rules”) stipulate that a solicitor and client relationship may be “established without formality” and entails the rendering of “legal services” – which certainly includes proffering advice on how to navigate client interests and professional duties at a criminal trial.3 Thinking of the lawyer as the advisor’s client is also helpful in avoiding the chin-stroking pontification which can sometimes displace the rigorous legal analysis which cases of this nature require. This way of thinking about the advisor’s role may not be controversial but it is also easily missed in the urgency – and relative informality – that attends many requests for ethical advice.
There are few questions as important to the analysis of any issue of legal ethics as the identification of a client’s interests. This issue pervades the analysis of both solicitors’ and barristers’ duties and arises explicitly in many of the Rules. In most cases, the interests of a client are easy enough to define – for a criminal lawyer, the client’s interest, broadly, is in obtaining as much success as the law and the facts will permit in defending against a prosecution. What, though, are the interests of a lawyer who comes to an advisor facing an ethical challenge? It is here that the unique duties falling on the lawyer – and hence the advisor – need to be identified with precision. Indeed, in many ethical conflicts this identification of client interests will dictate the action the advisor recommends and the lawyer ultimately takes.
A lawyer may well turn to an advisor for help in avoiding an ethical misstep which can lead to judicial opprobrium and professional sanctions. But the lawyer must not place their own interest in avoiding inimical personal consequences at the apex of the considerations that will govern the ultimate decision. This is because lawyers owe duties to clients that are superior to their personal interests. That duty is often expressed as “loyalty”4 and it is implicit in the duty of resolute and honourable advocacy which includes the obligation to advance vigorously and by all lawful means the defence of a client—even one believed to be guilty of the offence charged.5 This means that, just beneath the surface of many ethical conflicts faced by a lawyer seeking advice is a potential conflict of interest: should I make a cautious, conservative decision and protect myself from criticism or should I make the decision which best protects my client’s interests and can be defended if necessary, but may be challenged because of the ambiguity of the ethical rule? That is the conflict that may land on the desk of the advisor.
This conflict does not arise where the ethical duty is unambiguous and no exercise of judgment or balancing of competing considerations is required. For example, it is clear that counsel cannot encourage a prosecution witness to leave the jurisdiction during the currency of a trial and equally clear that counsel is not required to tell the police where to locate a missing Crown witness (and therefore should not). In such cases, the interests of the lawyer are not even potentially poised against those of the client and the advisor need only inform the lawyer of their duty – hoping they already understand it.
Some cases, however, do not permit ready-made advice. Case law and academic authorities have long recognized that many ethical questions do not have definitive answers and require a judgment balancing the interests of a client with a broader duty to the administration of justice. This approach has more recently been written into professional conduct rules.6 When an advisor is called upon to assist a lawyer faced with a question of competing interests or duties how should the advisor conceive of the question and formulate the answer?
My own view is that the advisor’s duty is to tell the lawyer that they should not take any action which places their own interests above those of their client where an exercise of judgment is required. Lawyers are not entitled to resolve difficult questions by choosing to protect themselves against potential criticism (or even discipline) at the expense of the most effective representation of the client. The advisor should therefore counsel the lawyer to resolve ethical questions with no clear answer in favour of the client’s interests to the extent that such a decision can be rationally defended based on the facts of the case and any relevant authorities. Lawyers cannot make judgments which protect their interests to the disadvantage of the legitimate interests of their client. Nor, it follows, can advisors properly recommend that they do so.
I emphasize this because the usual way in which these issues arise may distort the advisor’s perspective. Lawyers who drop into the office of senior counsel are naturally hoping to avoid negative consequences for themselves. Especially if the ethical conundrum involves colourable behavior by the client – for example, new physical evidence suggesting guilt, or a desire to testify in a manner the lawyer believes will be false – there is a tendency to sympathize with the faultless lawyer which may lead to advice that sacrifices the interests of the unsympathetic client. It is common, and easy, for an advisor in this position to formulate advice that begins with, “I think, the safest thing you can do is….” This perspective, which is customary and commendable in almost all contexts where advice is given to a client, cannot be properly adopted when the person seeking advice is a lawyer with a duty to place a third party’s interests above their own. In short, I believe the advisor should counsel the lawyer to take the step most favourable to the interests of the client that can be defended on a reasonable interpretation of the prevailing ethical rule and authorities on it. A conception of the issue that places greater weight on the interests of the lawyer, serious as they may be, may itself be a failure of ethical duty.
This approach has practical implications for the manner in which the advisor handles the issue.
First, the advisor should appreciate that to a considerable degree the lawyer will be seeking advice of this kind precisely so the risk of opprobrium can be shifted from the lawyer to the advisor.7 This may also be the lawyer’s response if the opprobrium comes from the client, as it may in a case where their interests are thought to have been sacrificed. It is, for instance, no small thing for a lawyer to point the police to a garment that has on it the blood of a deceased and the DNA of an accused, or a document in counsel’s possession that places a client (or a witness) at a particular place at a critical time. A lawsuit could easily result from disclosure of such an item and the law is not so clear that its outcome can be easily predicted in the hours over which ethical advice may be given and acted upon.
It follows that the lawyer cannot treat this as a simple matter of imparting wisdom to a less experienced colleague. Rarely will ethical advice on a difficult issue lend itself to superficial analysis or the sharing of an anecdote about a similar case from the advisor’s past. Very often, where client interests are at stake, formulating correct advice requires the advisor to probe the facts of the case deeply and determine how the available ethical choices may affect the course of the litigation and the interests of the client.8 Additionally, rules of professional conduct have become much more complex and particularized in recent years, reflecting a change from the broad articulation of ethical values and principles to detailed procedural and substantive requirements on how to assess ethical issues and document decisions. This, too, militates against haste and over-reliance on instinct or experience; off-the-cuff opinions are likely to be incorrect or incomplete without a review of the Rules.
This means that advisors should be willing to protect the lawyer and the client and ensure that there is time to provide the best judgment possible. If the judge has granted the lawyer an afternoon to think through a problem but the advisor needs more time to evaluate the issue, the advisor should be willing to say this, in a letter the lawyer can produce in court or even by attending in person to try to relieve the pressure on counsel. Recognizing that there are costs to delaying a trial in progress is not justification for giving advice on a serious issue based on an incomplete understanding of it.
It follows as well that the advisor should document the advice given with enough detail to be able to recount it years later if it is challenged from either direction – by a regulator concerned that the advice may have sacrificed the legitimate interests of the administration of justice or by a client, claiming that it placed the lawyer’s interests above their own (both of which, of course, are themselves ethical violations).
Ethical advisors should also, in my view, confront squarely the question of whether they are in a conflict themselves as they assist a lawyer trying to make a sound judgment. This is a real risk when the lawyer seeking advice is a member of the lawyer’s firm and reputational damage to the firm is foreseeable from a decision that may rebound on the client or lead to criticism of the lawyer. An advisor who is naturally protective of a junior associate and also concerned about the reputation of their firm is likely not in a position to advise on a matter that requires balancing duties to a client and the administration of justice.
The advisor’s need to probe deeply into the facts of the case before delivering advice also means that the lawyer should clear the consultation with the client in advance. There is some chance that the advisor’s queries of the lawyer will require disclosure of privileged communications and they will almost inevitably entail relating facts that are confidential in nature. There is no blanket rule (or exception) that allows this kind of disclosure without the consent of the client which, in my view, the lawyer should obtain and the advisor should insist upon.
The advisor’s need to gain a nuanced understanding of the facts of the case, and especially the impact of the ethical issue on the client’s legal interests, also has implications for the breadth of the advice the advisor can, and should, give to the lawyer. Often an ethical issue will mask an underlying tactical issue and sometimes a tension between the lawyer’s ethical obligations and the client’s tactical interests can be resolved by sagacious tactical advice.
At times, a problem can be solved with advice not just on what to do but how to do it. A confidentiality or conflict of interest problem which might appear stark can occasionally be cured with a waiver. An issue about turning over incriminating physical evidence may be resolved by doing it through an anonymous shield which prevents the evidence from being linked to the client but discharges the lawyer’s ethical duty. If the lawyer has not thought such measures through in advance, the advisor should make sure to do so.
As well, a sophisticated understanding of the case may allow the advisor to propose a solution that obviates the ethical problem. If the advisor can suggest how the client who is thought likely to lie under oath can give evidence by admitting the truth of an apparently inculpatory fact, the tension between his interests and the lawyers will dissolve – sometimes the perspective of an outsider to the case will help identify such a possibility. Maybe, for instance, the need to withdraw from the case because a former client is going to testify against a current client does not need an intensive ethical analysis because the former client’s evidence can be explained or turned to advantage, rather than challenged on credibility grounds. It is useful not to define problems in purely ethical terms before exploring other ways of thinking about them.
Sometimes, of course, neither placing the client’s interests at the forefront nor seeking means of honouring ethical obligations that also eliminate tactical prejudice will be possible. In such cases, an advisor can offer to the lawyer to intervene with the client. If the client has properly understood the advisor’s role from the outset, the advisor can meet with the client, often with the lawyer present, and explain with some objectivity and authority the predicament of the lawyer, the analysis the advisor undertook, and the inevitability of some impact on the client’s interests. This may not mitigate the harm that will be done to the client’s case but it can make a real contribution to the administration of justice by helping the client to understand that their interests have been considered and that the lawyer’s concerns were genuine, not frivolous or self-interested. This discussion will, of course, be easier and better received if it is apparent that the advisor has, throughout the analysis, kept the interests of the client as the key consideration and not simply recommended the safest alternative for the lawyer.
1 For the sake of clarity, I will refer to the person called upon to advise the lawyer seeking advice as “the advisor” and the lawyer making the request as “the lawyer” The person the lawyer is representing will be termed “the client”. As will be apparent, however, the advisor is usually a lawyer and the lawyer is, in my view, best viewed as a client of the advisor – albeit one with a very particular set of interests.
2 Generally, I prepare a handwritten note shortly after delivering ad hoc ethical advice and place it in a decades–old file I have labelled “Miscellaneous” for later reference if, as can happen, an ethical issue becomes significant during appellate litigation, professional discipline or civil litigation long after the advice was given.
3 Rule 1.1-1 (Commentary).
4 Rule 3.4-1 (Commentary).
5 Rule 5.1-1 (Commentary 9).
6 See, notably, Rule 5.1-2A on the fraught question of a lawyer’s possession of “incriminating physical evidence” which, after a series of prescriptive and advisory observations in the commentary, says: “a lawyer should balance the duty of loyalty and confidentiality to the client with the duties owed to the administration of justice”.
7 Not surprisingly, the Rules mention the wisdom of seeking “independent legal counsel” when faced with a question of incriminating physical evidence: Rule 5.1-2A (Commentary 3(a))
8 It is, for instance, impossible to apply the modern law of conflict of interest without a detailed understanding of the interests of client A and client B in respect of a matter where the lawyer for both is alleged to be in a conflict. Meaningful advice on conflict issues demands in-depth analysis of both the interests of the two clients and what they required of the counsel both retained: see Rule 3.4-1and the commentary to it and Canadian National Railway Co. v. McKercher LLP,  2 S.C.R. 649, both of which emphasize the need for detailed appreciation of what a client has at stake in the matters in which a conflict may arise.