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March 10, 2006
Doing ethics justice
Wendy Rubin leads dynamic legal discussion.
BAILA LAZARUS
"Justice, justice you shall pursue...." (Tzedeck,
tzedeck tirdof....) With those words, quoting from Deuteronomy,
Crown attorney Wendy Rubin opened her talk on Ethics and the Law.
"It reminds us that Judaism has a real interest in law, ethics
and justice and [of] the interplay between those three," said
Rubin, who was speaking at Or Shalom.
Why is the word "justice" said twice? "It relates
to navigating through a complex universe, where you have to balance
a lot of competing values, a lot of competing interests," said
Rubin. "That's what 'tzedeck' is about and repeating it twice
brings in that sense of balance." Regarding the use of the
word "pursue," Rubin said one interpretation is that justice
may be a virtually unattainable goal, but we do our best to attain
it.
Rubin, who works on appeals cases, said that often it's in the range
of duties of a defence counsel that many ethical conflicts arise
- there is the duty to the client and the duty to justice system,
she said, as well as duties to your colleagues, your profession
and to yourself.
"The thing about ethics is that it's not spelled out,"
said Rubin, adding that, although there's a code of ethics and self-regulating
bodies set out certain principals, you have to decide out how to
proceed on a case-by-case basis. "It's malleable and there's
changing legal culture. It's really not black and white."
"The question that most people ask is, 'How can you defend
a guilty client?' or 'How do you fight against the conviction of
a person you know is guilty?' That's at the absolute core of the
defence counsel's mission and, as you can imagine, it brings up
all sorts of diverse ethical duties."
According to the Canadian Bar Association's Code of Ethics, the
advocate's duty to the client is to "raise every issue, advance
every argument and ask every question, no matter how distasteful,
which he thinks will help his client's case." But the question,
Rubin said, is always, how far can you go?
She cited a few real-life cases. In one example, a lawyer did not
believe his client who was claiming a case of mistaken identity.
Pre-judging his client, the lawyer didn't bother to put him on the
stand to testify on his own behalf. The client was convicted, but
the real culprit ended up calling the lawyer and the fresh evidence
was used for an appeal.
Citing another, rather ignominious case, Rubin referred to the Paul
Bernardo trial, where Bernardo's lawyer had sat on material evidence
(the video tapes that Bernardo told him how to find) for more than
a year.
"This really presents the conflicting duties he had of loyalty
[to justice] and confidentiality [to his client]," said Rubin.
"Whatever his client tells him is confidential ... but at the
end of the day, you can't conceal or suppress evidence which would
interfere with the functioning of the justice system."
Although it would seem that the defence counsel was obstructing
justice by hiding evidence, at the same time, he was obligated to
protect his client from conviction, Rubin said. If a defence lawyer's
client confesses to his lawyer, for example, the lawyer is not expected
to tell anyone. In fact, he is obligated to keep that
information to himself. So where does the Bernardo case fall? Is
knowledge of hard evidence the same as knowledge of a confession?
There were no guiding regulations that seemed to apply clearly in
this case so, although charges were brought against the lawyer,
he was eventually acquitted, Rubin said.
Giving some background on Canada's adversarial justice system (which
has defence, prosecution and a jury), Rubin outlined the reasons
why our justice system works the way it does and explained why guiding
principles in themselves can lead to conflicts of ethics. For example,
the principle of being innocent until proven guilty. That means
that it's always up to the prosecution to establish guilt.
"The burden of proof is on the Crown," said Rubin. "There's
no obligation on the accused to come forward with any evidence in
the case. So you could say that the higher value is on a fair system
that adequately protects individual rights rather than convicting
the guilty at all costs. It's to ensure that someone who isn't guilty
is protected in all circumstances."
From the Crown's point of view, it's also very important to understand
their role. It's not to get a conviction or "win," but
to show to the jury relevant evidence related to the crime.
"It's not about winning or losing," said Rubin. "It's
about pursuing justice."
Baila Lazarus is a freelance writer, photographer and
illustrator living in Vancouver. Her work can be seen at www.orchiddesigns.net.
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