Lawyer’s obstruction charge likely to be hard to prove: professor

Lawyer's obstruction charge likely to be hard to prove: professor

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The disability charge is hard to prove as the Crown has to prove to the defendant that he intended the disability, says Glen Luther.

Author of the article:

Heather Polischuk

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May 13, 2021 • • 18 minutes ago • • Read for 3 minutes • • Join the conversation Glen Luther, attorney and professor at the University of Saskatchewan College of Law. Glen Luther, attorney and professor at the University of Saskatchewan College of Law. Photo by Liam Richards /.Saskatoon StarPhoenix

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A lawyer and law professor at the University of Saskatchewan says it will likely be difficult to prove an obstruction of justice faced by a Regina lawyer in court.

“This is certainly a notoriously difficult offense to prove,” said Glen Luther, who specializes in criminal law and procedure, law enforcement and evidence, among others.

This week the Regina Police Department announced that it had brought an obstruction of justice charge against Sharon Fox for failing to properly disclose information that had disrupted an ongoing police investigation in 2019.

Fox hit back with a brief statement, saying she was charged with “doing my job as a criminal defense attorney”.

“I will not be intimidated by the police into withholding information from my client if it would be unethical,” she said. “I look forward to confirming my position in court.”

While details of the allegation have not yet been made public, Luther generally said, such allegations are difficult to prove in court. They’re pretty rare too. The few Canadian cases in which he was immediately aware of the involvement of attorneys resulted in acquittals.

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The problem, he said, concerns what is known as the Mens Rea, or the element of the prosecution that requires the Crown to prove its intent.

“Obstruction is of a very high standard for a man’s sense of guilt or guilt …” Luther said. “You have to prove that the lawyer intended to interfere with you, and it’s going to be very difficult, I think – but we don’t have enough information to know.”

Sharon Fox, attorney, poses for a picture outside her office. Sharon Fox, attorney, poses for a picture outside her office. Photo by Michael Bell /.Regina Leader Post

Assuming the material in question is a defense disclosure by the Crown – a normal process by which opposing legal advisors provide each other with various information they have gathered about a case – Luther said that it was There are rules for how a defense attorney should handle this disclosure.

“When you receive information from your opponent, the courts have ruled that there is an implicit obligation to use it only for the purposes of this litigation …” he said. “The Crown also tends to impose so-called trust conditions on the defense when it makes the disclosure. So there will be a letter from the Crown to the defense attorney, and the terms of that letter are extremely important.”

Luther said the terms of the Crown’s terms could vary, adding that there has been some debate in this area about what terms can be legally imposed on the defense attorney.

General terms and conditions with which he is familiar include that the information is not disclosed to anyone else and that the defense attorney be present when the client reviews the material to ensure that he is not left alone with it.

Luther said that even if an attorney breaks a term of trust, although doing so could get them into trouble with the Law Society, it should not by itself be enough to earn a criminal conviction for disability.

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He added that it is also important to remember that a defendant has a constitutional right to see the information against him or her – which means that his or her lawyer has an obligation to show it to them.

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