Paper Presented at Federation of Law Societies National Criminal Law Program Edmonton, Alberta July, 2007 – SECTION 17.1
Author: Mark J. Sandler
It is beyond dispute that a lawyer has a duty of confidentiality to the client. However, the breadth of the duty, and exceptions to it, are more contentious. This paper briefly examines the parameters of this duty, most particularly in the context of criminal representation.
The duty of confidentiality finds expression not only in jurisprudence, but in ethical rules adopted by various law societies and by the Canadian Bar Association.
The essence of this ethical rule is that a lawyer must hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, and shall not divulge such information unless expressly or impliedly authorized by the client, required by law or otherwise permitted or required by the relevant rules of professional conduct.
Confidentiality is not synonymous with privilege. All privileged communications are, by definition, confidential. But not all confidential information is privileged. For example, in the course of assembling a case for trial, a lawyer may be advised by a third party of damaging or highly personal information about the client. The lawyer has a duty to hold this information in strict confidence, regardless of its source or whether it is known to others.
Solicitor-client privilege is largely designed to promote full candour, and thus, effective representation. The duty of confidentiality is also intertwined with the lawyer’s duty of loyalty to the client. A failure to respect confidentiality undermines the client’s confidence that the lawyer is acting solely in that client’s best interests. Indeed, it can fuel not only disciplinary or civil proceedings against the lawyer, but a judicial determination that the lawyer is in a conflict of interest.
Several features of the duty of confidentiality are of particular importance:
- The duty survives the professional relationship, continuing after the lawyer no longer acts for the client. Even where the parting between lawyer and client has been acrimonious, the duty persists, subject to exceptions described below.
- The duty applies, whether or not the client ultimately retains the lawyer. For example, a lawyer may meet with a potential client, uncommitted to whether the retainer will be accepted. Indeed, the lawyer may wish to determine whether a conflict of interest exists, preventing him/her from acting. In those circumstances, the lawyer must be careful not to elicit confidential information, thus engaging the duty of confidentiality and potentially preventing the lawyer from acting for another client.
- The duty should be interpreted to extend not only to the overt disclosure of confidential information, but its use. This is not always clear from the applicable rules of professional conduct, but accords with the underlying rationale of the duty.
- Not only is the lawyer obligated not to divulge confidential information, but must protect it from inadvertent disclosure. This means, for example, that documents should be safely and securely stored, and consideration given to the means of communicating with clients. Some lawyers limit the content of their emails or fax transmissions, and, at a minimum, place standardized warnings on these communications to address unintended recipients. Lawyers must be particularly mindful of the dangers associated with communicating or working on documents alongside strangers in public places>.> The sharing of confidential information between lawyers at public events, such as sports venues, raises similar concerns.
- Generally, there is implied or express authority for a lawyer to disclose, as necessary, confidential information to those engaged or employed by the lawyer>. Nonetheless>, the duty of confidentiality also imposes an obligation to take reasonable steps to ensure the maintenance of confidentiality by all such persons.
- The duty also extends to the secure storage of confidential information, and its destruction (where permissible) once the retainer has ended.
- The duty, and potentially applicable exceptions to it, should be explained to the client. The lawyer need not anticipate every conceivable scenario, but those that might reasonably be expected to arise. For example, an appellate lawyer must advise the client that an assertion of ineffective assistance at trial is likely to result in the disclosure of otherwise privileged communications between trial counsel and the appellant.
Certain types of criminal representation raise special issues in maintaining the duty of confidentiality:
- Representing Young Persons:- Young persons often attend a lawyer’s office in the company of a parent or parents. As well, parents generally want to be fully informed about their child’s case. They often assume financial responsibility for the defence. Regardless of any of the above, it is the young person who is the lawyer’s client. The duty of confidentiality is no less important in representing a young person. This means that privileged communications between the young person and the lawyer cannot be shared with the young person’s parents, absent that person’s consent. Similarly, confidential information acquired by the lawyer cannot be shared with the parents, absent such consent. Young persons should be advised at the outset of the meaning of confidentiality and privilege, and instructions should be taken, in the absence of the parents, as to whether – and to what extent – the young person wants confidential information to be shared with parents. Both the young person and the parents should understand that the parents’ presence during the interview process (or the sharing of privilege>d> information with them) may rob the communications of their otherwise privileged status, and permit the prosecution to elicit those communications from the parents as witnesses. This may be an unwelcome surprise, for example, at a bail hearing when a parent testifies as a potential surety. None of this means that parents should never be present when their children meet with their lawyers. It does mean that lawyers should be alive to this issue, and advise their clients accordingly.
- Representing Multiple Accused:- In some circumstances, lawyers may act for multiple accused. Such a retainer must be carefully considered. Potential antagonistic defences will obviously prevent representation> of multiple accused>. As well, multiple accused, although not antagonistic, may be so differently situated (based, for example, on the strength of the respective cases against each) that they are well advised to be separately represented. Where the lawyer continues to act for multiple clients, they must understand that the lawyer cannot keep confidences from either client.
- Joint defence agreements:- Separately represented accused may stand jointly charged in factually complex, “paper intensive” cases>, compelling a level of cooperation between their lawyers. That cooperation might well invite an exchange of otherwise confidential information to enable non-antagonistic parties to prepare for trial. This raises the obvious concern that the information will lose its confidential or even privileged status as a result of its dissemination to other parties. As a result, Canadian lawyers increasingly resort to joint defence agreements, designed to facilitate the exchange of such information, while preserving, to the extent possible, confidentiality and, pursuant to such an agreement, placing limits on the disclosure or use of such confidential information. These agreements invariably provide for termination of the agreement, while continuing to limit the subsequent disclosure or use of the exchanged information, where a particular accused’s defence strategy becomes antagonistic to the others, or where an accused pleads guilty and agrees to provide evidence for the prosecution. Of course, the agreements cannot be incompatible with ethical or legal responsibilities, and often expressly so indicate.
- The Fugitive:- Lawyers may be contacted by a cl>ient who is unlawfully at large. The lawyer must not assist the client to remain unlawfully at large; indeed, the lawyer’s obligation is to advise the client to surrender, and to attempt to gain agreement that the client do so in a way that least prejudices the client’s interests. The communication of the client’s location to the lawyer is likely privileged. It is, at the very least, confidential, and cannot be voluntarily disclosed by the lawyer to the authorities, unless disclosure is authorized by the client; one of the exceptions to the duty of confidentiality applies (such as the public safety exception described below); or disclosure is compelled by court process.
Confidential information may be inadvertently disclosed to third parties. Where the information is privileged, in the absence of waiver, the privilege is likely not lost as a result of its inadvertent disclosure. In determining whether privilege has been waived through disclosure, the courts will consider, inter alia, whether the error was in fact inadvertent, whether an immediate attempt has been made to retrieve the documents once disclosure has been discovered, and whether continued preservation of the privilege would cause unfairness to the receiving party.
Where a lawyer obtains a confidential document that has been inadvertently disclosed by an opposing party, the recipient’s ethical obligation likely requires that the document be returned unread and uncopied, or if partially read before realizing that it was inadvertently disclosed, the lawyer is likely required to cease reading it, and then return it, uncopied  Proulx and Layton note that existing rules of professional conduct are not uniform on what use, if any, can be made of the partially read document. Some are silent on the issue, although they articulate the obligation of the lawyer not to take advantage of a mistake made by opposing counsel  In my view, privileged documents inadvertently disclosed should be returned uncopied and, to the extent possible, unread. Any issues about whether privilege has been properly asserted, or as to how such documents might be used in the future can be resolved through seeking direction from the court. Another approach adopted in the jurisprudence has been for the recipient to seal the documents and any notes related thereto, pending such direction. For criminal lawyers, this issue arises most frequently in the context of Crown disclosure, where confidential or privileged information (such as an informant’s identity or personal contact information for fearful witnesses) has not been excised from officers’ notebooks. Some counsel hold take the erroneous position that once this information is inadvertently disclosed, they must share it with their clients. As reflected earlier in this paragraph, the ethical rules do not support this view.
Where a lawyer has obtained the opposing party’s privileged documents, the court may be asked to disqualify that lawyer from continuing to act. In Celanese Canada Inc. v. Murray Demolition Corp., the plaintiff executed an Anton Piller order, resulting in access to privileged documents. The Supreme Court of Canada concluded that no one has the right to be represented by counsel who has had access to solicitor-client documents in circumstances where such access ought to have been anticipated and, without great difficulty, avoided and where the searching party has failed to rebut the presumption of a resulting risk of prejudice to the party against whom the Anton Piller order was made. The court articulated the factors that should be taken into account in determining whether disqualification is necessary. In my view, these factors have equal application to criminal cases.
Express or Implied Authorization
Confidential information may be divulged where expressly or impliedly authorized by the client. Generally, disclosure or use of confidential information is impliedly authorized where patently necessary to fulfill the lawyer’s mandate. That being said, express authorization should be obtained where disclosure may bring adverse consequences. For example, as earlier noted, ineffective assistance of counsel may be asserted as a ground of appeal against conviction. Advancing this ground of appeal may result in a loss of privilege concerning the former lawyer’s file and his/her communications with the client. This is because the assertion of ineffective assistance of counsel may involve a description by the appellant of instructions given to, or advice received from, the lawyer, resulting in a waiver of privilege. Similarly, the appellant may not, at first instance, rely upon otherwise privileged communications to make out a case of ineffective assistance, but the former lawyer may only be able to successfully defend against such an allegation by citing some or all of the otherwise privileged communications.
It follows that the appellate lawyer must ensure that the client’s instructions to proceed with this ground of appeal are informed by the likelihood that the former lawyer will be permitted to open up his/her file to the prosecution and divulge otherwise privileged communications.
Disclosure to opposing parties of expert reports that are otherwise confidential, and otherwise subject to litigation or solicitor-client privilege raises similar concerns. The client must be fully informed of the potential consequences of such disclosure.
Publicly Available Information
The point was earlier made that the duty of confidentiality is broader in some respects than privilege. The lawyer has a duty to hold information in strict confidence, regardless of its source or whether it is known to others. Lawyers have been known to divulge information about their clients at cocktail parties or similar events, prefaced with the explanation that the client’s charges or guilty plea are “a matter of public record.” In a number of instances, lawyers do so at their peril. Information that is on the public record may nonetheless not be generally known, or likely only to be accessed by a limited class of individuals, and even then, only with special effort. The duty of confidentiality is complemented by the duty of loyalty that lawyers owe to their former and present clients. A lawyer who contributes to a wider dissemination of prejudicial or embarrassing information about the client can hardly be said to be acting in the client’s best interests or fulfilling the ongoing duty of loyalty.
That being said, it must also be recognized that some facts are so notorious or well-known that it would be difficult to imbue them with any confidential characterization, or regard their disclosure as contrary to the client’s interests. Indeed, it might even be said that the lawyer’s favourable treatment of notorious facts in public discussion advances the client’s interests and might be regarded as impliedly authorized.
Existing rules of professional conduct are not uniform on the approach taken to so-called public information. Some rules do not address this issue. Others suggest that the duty of confidentiality may not apply to facts that are public knowledge, but caution against participating in or commenting upon speculation concerning the client’s affairs or business. At the other end of the spectrum, the Alberta Code of Professional Conduct prohibits the disclosure of any confidential information regardless of its source and whether or not it is matter of public record.
In Stewart v. Canadian Broadcasting Corp, a criminal defence lawyer hosted a television series that explored significant cases. One was his own, pertaining to a case in which the accused was convicted of offences associated with a fatal car accident and leaving the scene. Shortly before the television show was aired, the client learned of the impending episode, and registered his objection. The show was nonetheless aired. The civil suit was defended, in part, on the basis that no confidential information was disclosed in the episode  The episode’s contents were derived from court transcripts, and the case had been the subject of widespread publicity, albeit 12 years previously.
Ultimately, the court concluded that no confidential information had been disclosed, but nonetheless found that the lawyer breached his fiduciary duty of loyalty to the client by favouring his interests over those of the client, and undercutting the benefits and protections he had originally provided to the client as his counsel by the way the television series had publicized the client’s case, increasing the adverse public effect on the plaintiff/client of his crime, trial and sentencing.
Required by Law
All rules of professional conduct provide that lawyers shall disclose confidential information when required by law to do so. Coupled with this mandate is the obligation not to disclose more information than is required. Since the jurisprudence provides strong class protection against the compelled disclosure of privileged solicitor-client communications, the lawyer may only be compelled to divulge such communications where one of the narrow exceptions are found to apply, or where the privilege has been waived.
The court or tribunal of competent jurisdiction may also find that communications were not truly privileged, for example, because they were not exchanged in confidence. Any doubts in that regard should be resolved by the lawyer in favour of asserting the privilege, until such time as the court or tribunal rules otherwise.
Four exceptions to solicitor-client privilege figure prominently in the jurisprudence:
- Innocence at stake:- Solicitor-client privilege will yield only in clearly defined circumstances where the accused’s innocence is at stake. The stringent test for setting aside the privilege is fully articulated in R. v. McClure and need not be further addressed here.
- Crime fraud:- Communications between lawyer and client which are criminal or made with a view to obtaining legal advice to facilitate the commission of a crime> are not privileged. As a result, their disclosure can be compelled through court process.
Proulx and Layton question whether there is a crime fraud exception to the duty of confidentiality (separate and apart from privilege) that would permit or mandate disclosure by lawyers, even in the absence of court process, when the circumstances exist that would trigger the exception to solicitor-client privilege. The better view is that no such exception currently exists, although the debate is hampered by imprecision in ethical rules and jurisprudence concerning the distinction between privileged and confidential non-privileged information. In a number of instances, the desirability of permitting or mandating disclosure may be met through the ability of lawyers to disclose confidential information to address public safety, to defend themselves against allegations of impropriety or to comply with duties not to mislead the court or to report certain conduct. These exceptions or duties extend to confidential non-privileged communications.
Public safety:- In Smith v. Jones, the Supreme Court of Canada articulated a public safety exception to privilege (and to non-privileged confidential information. A psychiatrist retained by the defence to assist with sentencing applied to the court for a declaration permitting him to disclose otherwise privileged information which he believed was necessary to prevent the commission of serious crimes. The court treated the information as subject to solicitor-client privilege. The Supreme Court held that disclosure is permitted, as a general rule, where there is an imminent risk of serious bodily harm (including psychological harm) or death to an identifiable person or group. The disclosure should be limited as much as possible, and in particular>,> to the information which indicates that the preconditions for disclosure exist. The court also acknowledged that there may not always be time to seek a court declaration. While it did not articulate the precise steps that might be taken to prevent harm to the public, it observed that it might be appropriate to notify the potential victim, the police or the prosecutor, depending on the specific circumstances.
It follows that a lawyer contemplating disclosure to prevent future harm should seek judicial approval, where practicable. T>he lawyer also has an obligation, again where practicable, to take steps to address the issue without disclosing the information or seeking judicial approval to do so. In some circumstances, this will impose an obligation on counsel to discuss the matter with the client, to ascertain whether the concerns are real and/or to dissuade the client from his anticipated dangerous course of action. Counsel may be able to facilitate medical or family intervention. Sometimes, family members are the source of the concerning information. They might be encouraged to seek independent legal advice, on the basis of which, they are better situated to make the necessary disclosures. Lawyers may also be well advised to obtain guidance or direction from senior members of the bar or law societies. All that being said, the additional difficulty surrounding this exception is rooted in its widely divergent treatment by the various law societies, and in the interplay between the law societies’ ethical rules and the common law exception crafted by the Supreme Court of Canada.
Some ethical rules provide only for permissible disclosure; some provide for mandatory disclosure in some situations, and permissible disclosure in others. One provides for mandatory disclosure only. The anticipated harms that trigger either permissible or mandatory disclosure include, depending upon the ethical rule consulted, a crime, a crime involving violence, a crime likely to result in death or bodily harm, death or serious bodily harm (without reference to the need for it to involve a crime), criminal or fraudulent transactions or serious crimes. As well, there may be other ethical rules (such as the obligation to report certain professional misconduct to the law society) or statutory duties (such as those surrounding children in need of protection) that also impact upon the lawyer’s responsibilities. It is beyond the scope of this paper to explore all of the issues raised here. But it is imperative that lawyers familiarize themselves with the ethical rules in their governing jurisdictions.
- Defence against Allegations of Impropriety or Incompetence: A lawyer is entitled to defend against an allegation of impropriety or incompetence. This might arise in a variety of ways: (a) a disciplinary complaint made against the lawyer; (b) a criminal charge facing the lawyer, or a criminal charge against a client whose defence implicates the lawyer (eg “my lawyer told me to leave the jurisdiction”); (c) a civil suit against the lawyer; (d) an assertion, on appeal, by the client that the lawyer provided ineffective legal assistance.
As reflected in several of these examples, the ability to divulge privileged communications is not dependent on whether the lawyer is a party to the proceedings in which the allegations arise. As well, this exception undoubtedly extends to the defence of associated lawyers or employees, although only some rules of professional conduct explicitly address this issue. 
The requirement that the lawyer not disclose more information than is required is more problematic here than in those cases where disclosure inevitably follows a court ruling. As well, a lawyer defending against allegations of impropriety is understandably motivated by self-interest, and might be inclined (despite the rule) to err on the side of disclosure. In some circumstances, a lawyer will be well advised to obtain independent legal advice. As well, where, for example, a lawyer is responding to a civil suit, an option discussed in the jurisprudence is the filing of a sealed response to enable judicial intervention.
The requirement that disclosure be limited to what is necessary has implications not only for the content of the disclosure, but as to whom disclosure may be made, and when. So a relatively obscure statement of claim might well invite a response that discloses confidential information, but not public dissemination through the media. The “when” is more problematic. For example, the media might publish information about a client’s case that raises an allegation that the lawyer has been complicit in the client’s activities, although no formal complaint or charge has been brought. Or an unscrupulous client may have used the lawyer to advance a criminal objective. The lawyer who then becomes aware of this use may reasonably feel that his/her continued silence may increase the likelihood that the lawyer will be regarded by the authorities as knowingly complicit in what has taken place.
The extent to which a lawyer can disclose confidential information, on his/her own initiative, in the absence of a formal complaint or charge, remains unclear. Proulx and Layton provide some guidance:
Where no other option can reasonably be seen to protect counsel, disclosure may be justified. For instance, in Finers v. Miro, a law firm managing assets for a client learned that the assets were potentially subject to a constructive trust in favour of a third party who alleged fraud by the client, and that the firm also faced possible liability to the third party. In these circumstances, the court permitted the firm to make partial disclosure of otherwise confidential information. However, prior to taking this extreme step, counsel should consider alternative actions that stop short of whistle-blowing, including immediate cessation of the retainer and action to preserve evidence that will aid in demonstrating innocence if an allegation of misconduct arises in the future.
As reflected above, the timing of disclosure is problematic, and particularly so where the complaint has been initiated by a third party, such as the police, and not the client. If the lawyer and the client’s interests coincide, it may be relatively simple to obtain the client’s authority to disclose sufficient confidential information to address the allegation. But more commonly, where such an allegation is made against a lawyer, the lawyer and the client’s interests conflict. Nor can the lawyer take comfort in the fact that, often, the client’s communications (for example in urging criminality upon the lawyer) may be subject to the crime fraud exception to privilege, since the better view (earlier articulated) is that the exception only operates where the lawyer divulges such communications under legal compulsion. The lawyer must generally cease acting for the client in these circumstances, given the conflict of interest that arises.
Again, lawyers are well advised to consult their governing law societies’ ethical rules, since they again diverge on this issue.
Rules of professional conduct also contemplate that a lawyer may disclose confidential information to establish or collect the lawyer’s fees, but again, the lawyer shall not disclose more information than is required.
Lawyers as advocates also have a duties to the administration of justice. These are captured in various ethical rules, and most prominently, include the duty not to mislead the court.
4.05 (2) When acting as an advocate, a lawyer shall disclose to the judge and opposing counsel any information of which the lawyer is aware that a juror or prospective juror:
(a) has or may have an interest, direct or indirect, in the outcome of the case;
(b) is acquainted with or connected in any manner with the presiding judge, any counsel or any litigant; or
(c) is acquainted with or connected in any manner with any person who has appeared or who is expected to appear as a witness unless the judge and opposing counsel have previously been made aware of the information.
4.05 (3) A lawyer should promptly disclose to the court any information that the lawyer has about improper conduct by a member of a jury panel or by a juror toward another member of the jury panel, another juror, or to the members of a juror’s family.
The advocates’ duties not to mislead the court and to disclose information concerning the jury impropriety or bias may collide with the duty of confidentiality. The issue also commonly arises in connection with the lawyer’s access to “the bloody shirt” or “smoking gun” although the issue is broader than framed in those terms, and encompasses the possession generally of potentially incriminating physical evidence, the fruits or instrumentalities of a crime. These topics are beyond the scope of this paper, and indeed are addressed, in part, elsewhere in this program. 
As acknowledged in this paper, Proulx and Ethics and Canadian Criminal Law is invaluable in identifying and addressing the many ethical issues that confront criminal lawyers, including those relating to confidentiality. On a personal note, the Honourable Michel Proulx was an inspiration and source of and advice for many of us. He will be deeply missed.
The duty also survives the client’s death. In Proulx and Layton, Ethics and Canadian Criminal Law (Irwin Law Inc. 2001) at pp. 181-184, the compelling case is made for a rule relieving against continuing confidentiality in limited circumstances: for example, to exonerate a wrongly accused person based on otherwise privileged communications with the deceased client. The present “innocence at stake” exception does not assist, since it does not permit the lawyer to initiate disclosure; and the present “public safety” exception is unlikely to extend to wrongful conviction or imprisonment.
 Descoteaux v. Mierzwinski (1982), 70 C.C.C. (2d) 385 (S.C.C.).
The classic illustration is the lawyer who learns from the client that he has a troubled marriage, and then uses that information to seduce the client’s spouse. This would constitute a breach of the lawyer’s duty of loyalty and confidentiality, as well as raising obvious conflict of interest and other concerns.
 See, for example, Law Society of Upper Canada, Rules of Professional Conduct [“Ont.”], subrule 2.03(1) and Commentary; Law Society of Alberta, Rules of Professional Conduct [“Alta.”], Chapter VII, Rule 3, Commentary 3.
 See, for example, Ont. subrule 2.04(6).
 Royal Bank v Lee (1992), 9 C.P.C. (3d) 199 (Alta.C.A.); Chan v. Dynasty Executive Suites Ltd.,  O.J. No. 2877 (Sup.Ct.).
 Chan v. Dynasty Executive Suites Ltd., supra, at para. 31.
 See, for example, Law Society of British Columbia> [“B.C.”], Professional Conduct Handbook, Chapter V, Rule 15.
 Proulx and Layton, Op.Cit., at pp. 199-201.
 Aviaco International Leasing Inc. v. Boeing Canada Inc.,  O.J. No. 2420 at para.11 (Sup.Ct.); Chan v. Dynasty Executive Suites Ltd, supra, at paras. 74-76.
  S.C.J. No. 35.
 Ibid., at paras. 56-59.
 Of course, even where disclosure or use of confidential information appears necessary, the client’s instructions to the contrary prevail. Simply put, there is no implied authority in the face of disapproval.
 R. v. Bajrangie-Singh (2003), 174 C.C.C. (3d) 351 (Ont.C.A.); R. v. Longaphie (1987), 39 C.C.C. (3d) 476 (Ont.Dist.Ct.).
 See, for example, Ont. subrule 2.03(1) and Commentary; CBA Code Chapter IV, Commentary 8.
 Alta., Chapter 7, Rule 1.
 (1997), 150 DLR 4th 24 (Ont.Ct.Gen.Div.).
 The lawyer had represented the client at the sentencing hearing, not the trial itself.
 The various ethical rules make clear that a lawyer’s literary works are not immunized from the ordinary rules of confidentiality: see, for example, Ont. subrule 2.03(6).
 This is reflected, inter alia, in the jurisprudence governing the search of law offices, and the measures to be taken by lawyers to protect privilege: Lavallee, Rachel & Heinz v. Attorney General of Canada; White, Ottenheimer & Baker v. Attorney General of Canada; R. v. Fink (2002), 167 C.C.C. (3d) 1 (S.C.C.).
 (2001), 151 C.C.C. (3d) 321 (S.C.C.).
 R. v. Campbell> and Shirose> (1999), 133 C.C.C. (3d) 257 (S.C.C.). The court sometimes refers to this exception as the future harm exception. I avoid the use of this term in this context, since it is frequently used, as well, to describe the ethical rules surrounding the public safety exception.
 Proulx and Layton, Op.Cit.,at pp. 253-265.
 (1999), 132 C.C.C. (3d) 225 (S.C.C.).
 The court noted at para. 44 that if the exception applies to the highest privilege recognized by the courts (solicitor-client), it necessarily applies to all classifications of privilege and duties of confidentiality.
 There is a fulsome discussion of these issues in Layton and Proulx, Op.Cit., at pp. 230-253.
 R. v. Dunbar (1982), 68 C.C.C. (2d) 13 (Ont.C.A.).
 See, for example, Ont. Subrule 2.03(4)
 R. v. Li,  B.C.J. No. 2312 (C.A.)
 Proulx and Layton Op.Cit., at p. 228-229 [footnotes omitted]
 See for example, Ontario> subrule 2.03(5).
 See Richard C.C. Peck Q.C., Advocacy: Ethics and Professionalism 12.1; R. v. Murray> (2000), 144 C.C.C. (3d) 289 (Ont. Sup.Ct.).