One of the terms of Omar Khadr’s release pending his lawyers’ appeal of his U.S. convictions is that he must live with his lawyer Dennis Edney and wife Patricia in Edmonton, Alberta. In response to this news, an Ontario law professor colleague mused whether Edney’s agreement to house the former Guantanamo Bay prisoner was a breach of lawyers’ ethics.
Alberta rules say: No Breach
The short answer is that the Law Society of Alberta’s Code of Conduct, last revised in 2013, is silent on the issue. This raises the question: If Mr. Khadr had been repatriated to Ontario, would an Ontario lawyer have been allowed to house him?
What about Ontario?
The Ontario Rules of Professional Conduct states, in particular:
Judicial Interim Release
3.4-40 Subject to Rule 3.4-41, a lawyer shall not in respect of any accused person for whom the lawyer acts
… (d) act in a supervisory capacity to the accused.
The Ontario provision is based on a Federation of Law Societies of Canada revision in 2014. If it were Ontario, rule 3.4-40 would still not apply, because it refers to an “accused person.” The FLSC analogue also refers to “accused person.” Mr. Khadr is not an accused person. He was convicted and is an appellant in the U.S. courts. That may sound like splitting hairs, but it is not. The drafter could have used a phrase such as “bail applicant” or “person on bail” – but didn’t.
There are different considerations between an accused and an appellant because the prohibition in s. 3.4-40 is under the rubric of conflicts of interest (3.4). The wording of the prohibition in the Ontario rule is governed by the words, “any accused person for whom the lawyer acts.” It is not about the propriety of any lawyer doing it (eg. the accused’s tax lawyer) – like the provisions about bringing the profession into disrepute. The proof that the spirit of the rule is not subject to the basket requirement is that it is permitted in Alberta, and before 2014 in Ontario.
Too clever a distinction?
The relationship between the accused person qua accused person and the lawyer qua the accused’s lawyer in the pending unresolved criminal matter that the rule intends to catch. The law is more protective of the role of counsel during the process of first instance than in an appellate context, because of the potential for miscarriage of justice tends to focus on the fact-finding process.
The distinction between an accused and an appellant appealing a conviction may seem too legalistic. From the perspective of professional responsibility and discipline, however, we must side with the lawyer’s freedom to act.
Even under Ontario’s rules, s. 3.1-1(g) provides that the competent lawyer must comply “in letter and in spirit with all requirements pursuant to the Law Society Act.” This has been interpreted to mean the letter and the spirit, and not the letter or the spirit. The only way the “spirit” is given a stand-alone status is the situation where the breach by analogy to a written rule also offends the basket provision re avoidance of disrepute. See Law Society of Upper Canada v. Roy Francis Dmello, 2013 ONLSAP0005, Para 86: “… the Society’s ability to rely upon the spirit of the Rules cannot be a licence for the Society to seek findings of misconduct which would effectively supplant or undermine the existing Rules.”
So no, in this case, Khadr’s Canadian lawyer has not run afoul of any prohibition, either in Alberta or in Ontario.