[Editor’s Note: This article was originally published by the Ontario Bar Association Criminal Justice Section, www.oba.org/Sections/Criminal-Justice. The authors are Canadian advocates Frank Addario and Sarah Rankin, a law school graduate who under the Canadian system is serving an apprenticeship year with his firm. She is set to clerk at the Alberta Court of Appeal. Frank is Best Lawyers International‘s 2015 Toronto Criminal Defence Lawyer of the Year. Read on and you’ll see why. He has argued before the Ontario Court of Appeals and the Supreme Court of Canada. He is a director of the Canadian Civil Liberties Association.]
DID OSCAR PISTORIUS GET A FAIR TRIAL?
Olympic Athlete Oscar Pistorius shot and killed his girlfriend, Reeva Steenkamp. His sensational trial was destined to be controversial. But, marred by prosecutorial misconduct the trial was a study in lawyer theatrics instead of dignified advocacy. The culprit was South Africa’s famous “Pit Bull”, Gerrie Nel.
Nel’s approach to his job was jarring because it was so at odds with the Canadian legal tradition. Nel repeatedly signaled he was invested in a conviction, a posture incompatible with the Canadian legal rule that the Crown Prosecutor never wins or loses.
Nel lectured as much as he questioned. “You killed Reeva Steenkamp,” he began. “Say it” (details). Nel insulted Pistorius and repeatedly editorialized about Pistorius’ evidence. He screened footage of Pistorius shooting at watermelons with friends, then badgered Pistorius to look at a photograph of Steenkamp’s wounded head and compared her injuries to the exploded fruit. [Note from moderator: do not click on this link unless you’ve tried a murder case, or want to.]
Pistorius at times vomited and wept in response. While Canadian law assumes this type of conduct is unfair, Pistorius’ trial judge took careful notes during Nel’s performance. “You will blame anybody but yourself,” Nel lectured Pistorius. “You are lying. You just refuse to take responsibility for anything.” Nel’s contempt for Pistorius was palpable as he laughed at Pistorius’s answers.
This approach to lawyering would be out of bounds for a Canadian prosecutor. While entitled to be energetic advocates, the Crown may not pursue a conviction at any cost. The system is adversarial, not antagonistic. Canadian prosecutors are trained that they are ministers of justice duty-bound to approach their role with integrity and fairness. That duty imposes many obligations on the Crown, including a legal obligation not to cross-examine the accused in a way that is contemptuous or sarcastic.
In the rare case where a Canadian Crown loses sight of this duty and pursues a case with more partisan enthusiasm than the law allows,appellate courts routinely reverse the conviction. The intentional humiliation of a defendant destroys the appearance of trial fairness (R. v. R(AJ),  OJ No. 2309). Our courts have reversed seemingly solid convictions for far less insulting prosecutorial questioning than Nel’s (R. v. Robinson (2001), 53 OR (3d) 448 (CA), R. v. Provencher,  SCR 95). They have also overturned convictions where the Crown effectively gave evidence or stated opinions about the defendant’s story, evidence or lifestyle – all of which Nel did while cross-examining Pistorius.
Even in the United States, where a certain wild-west ethic is allowed in the courtroom, Nel’s approach would have crossed the line.
While a point of pride for many South Africans (details and more details). Nel’s cross-examination was no advocacy achievement. Real trial lawyers know it is easy to humiliate a witness. It is much tougher to be fair while dissecting the witness’ evidence.
The facts could have done the talking in the case against Oscar Pistorius.
Nel had a compelling case for deliberate murder: a shooting without an apparent attempt to check first for the deceased by a defendant skilled with guns, extrinsic evidence of a heated argument just before the shooting and a defendant known for his temper (details and more details). Pistorius’ story had problems. But Nel committed the cardinal error of overzealous lawyers: he abandoned objectivity. He pursued Pistorius as if he had a personal stake in the outcome.
A criminal prosecution is not a street brawl. The community commits to a fair trial in exchange for the right to take away the citizen’s liberty. A key feature of those fair trials is an independent-thinking, fair prosecutor. Inquiries into wrongful convictions show that “tunnel vision” affects prosecutors who become fixated on “besting” a defendant, abandoning independence and objectivity (see Morin Inquiry and Marshall Inquiry). All lawyers in a criminal case must be fair to witnesses but the prosecutor’s duty is part of the constitutional right to a fair trial in Canada (see also R v Prokofiew and R v Noble). The American Bar Association’s rules impose similar obligations on American prosecutors (details). While Crown and defence counsel are entitled to be zealous advocates, the model is asymmetrical: the Crown must also be a minister of justice in the courtroom. The “win at all costs” mentality is foreign to Canadian Crown counsel.
The obligation of the prosecutor to behave fairly is especially engaged when he or she is cross-examining a defendant. Deliberately humiliating or laughing at a witness is atrocious behaviour – especially when, as Pistorius reminded Nel, the witness is on trial for his life.
As he cross-examined Pistorius, Nel offered his opinion on Pistorius’ evidence and his choices. Under Canadian law he would be flirting with a mistrial. Canadian appeal courts overturn convictions even for serious offences when the Crown crosses this line. In R. v. L.(L.), the Ontario Court of Appeal reversed a conviction because the Crown repeatedly demeaned defence witnesses, expressed his opinion that the defendant was guilty and editorialized about the defendant’s evidence. In R. v. D.M.B, the same Court overturned a conviction for sexual offences partially because the Crown’s closing address was filled with personal opinion about the defendant’s credibility and his guilt.
While cross-examining Pistorius about his ammunition storage practices, Nel questioned him about legal advice he received. He demanded Pistorius explain why a lawyer would give him that advice. He also asked Pistorius about points his lawyer did not pursue with a prosecution expert. These questions are logically improper since a defendant hires a lawyer precisely because he recognizes the lawyer’s strategic expertise. Solid convictions have been overturned where the Crown suggested a defendant is responsible for tactical decisions by his lawyer (see R. v. D.(C.) and R. v. Bouhsass).
Successful appeals for prosecutorial misconduct are rare in Canada because of a systemic Crown understanding that the bad guys can be convicted without resort to rude or belligerent tactics. The higher South African tolerance for courtroom theatrics closely resembles the advocacy ethic in some publicity-driven American trials. Although the prosecutor in the notorious Casey Anthony murder trial was admonished when he laughed at the defence closing address to the jury, a prosecutor in the equally high-profile Jodi Arias case escaped an abusive cross-examination with minimal criticism (clip 1 and clip 2). Likewise, in a now-infamous exchange a prosecutor in a New York state case was allowed to scream at the defendant as the judge repeatedly overruled defense objections:
Inarguably, a prosecutor is entitled to use aggressive tactics in a criminal trial. But, Canadian law assumes that the humiliated honest witness is as likely to flub an answer as the humiliated witness with something to hide. To eliminate this skewing effect Canadian courts have withdrawn abusive cross-examination from the advocate’s arsenal. Cross-examination continues to be a reliable vehicle for learning the truth in Canadian courtrooms – even without the distracting sideshow of sneering lawyers.
From the outset, the case against Oscar Pistorius was framed as an opportunity to refresh the image of the South African justice system (details). One court suggested that televising the proceedings would go “a long way” to dispelling the perception that the country’s justice system treated rich and poor differently. Others saw the case as an opportunity to show that domestic violence is taken seriously. Legal systems frequently try to launder larger problems through a single court proceeding.
As Canada’s Globe and Mail sensibly noted in a recent editorial, the criminal justice system is best served by objective decision-making. In a refreshing example of independent police and prosecutorial judgment last month, authorities declined to charge a drunk teenager for wandering into Justin Trudeau’s home (details). Likewise, public understanding that criminal prosecutions cannot address systemic problems fuelled the growing call for a national inquiry (details) into missing and murdered Aboriginal women. In both these examples Canadians have accepted the criminal justice system cannot perform beyond its reach. Coming down hard on a defendant by turning a notorious “pit bull” prosecutor loose in the courtroom may sound like progress to those who think women are beaten and killed with impunity in South Africa. But it does not establish faith in a justice system.
Judge Masipa found Pistorius not guilty of premeditated murder, but guilty of the manslaughter-equivalent offence of “culpable homicide.” Although the prosecution’s inability to make its primary theory stick might suggest Nel’s advocacy failed, it is not so easy to overlook the failure in professionalism. If the trial was meant to showcase the South African justice system’s neutrality and dignity, the judge’s failure to rein in counsel was a visible blemish.
An insistence in Canada on civility should not be confused with a concession that lawyers be less courageous. Criminal trials are no place for lawyers fretting about their popularity. But skilled lawyers are able to keep zealous advocacy in place as their primary guide without personalizing litigation. The Pistorius trial was an example of abusive lawyering at its worst.
 Law Society of Upper Canada v. Groia, 2013 ONLSAP 41 at paras 7, 327-328. “A contextual analysis ensures that the challenges that confront courtroom advocates are fairly taken into account and do not create a chilling effect on zealous advocacy. In assessing the context, it is important to consider the dynamics, complexity and particular burdens and stakes of the trial or other proceeding. Trials are often difficult for the advocate and the client but some are particularly so. Many are hard fought. Advocates may be under immense pressure. Sometimes things go awry. It may not be possible to maintain an atmosphere of calm and efficiency. A few ill-chosen, sarcastic, or even nasty comments directed at one’s opponent will rarely constitute professional misconduct, particularly if they reflect a moment of ill-temper and an apology is made. Provocation from opposing counsel is a relevant consideration, although it is not a complete defence. The transcript of the proceeding, together with counsel’s explanations of her conduct, must be carefully examined in the context of all the surrounding circumstances, including the important public interest that lawyers vigorously and courageously advocate for their clients.”
 “Warm zeal” as the Americans like to call it: ABA Canon of Prof’l Ethics, Canon 15 (1908).