The Death of Helen Betty Osborne
The Aboriginal Justice Implementation Commission
Principles of Representation TOP
An examination of professional conduct in the Betty Osborne case provides some concrete examples of how a lawyers conduct can affect the course of justice and, more importantly, the rights and lives of clients and, indeed, the public at large.
Our task has been to examine all matters surrounding the Osborne case and to report on all matters of importance to the administration of justice that arise from that case. There are no matters of greater importance to the legal profession than the ethics and conduct of its members. The same issues are of equal importance to the public which must repose its trust regularly in the integrity of lawyers. We are satisfied that it is within the purview of this Inquiry to examine the conduct of the lawyers who played so prominent a part in the investigation and prosecution of those involved in the murder of Betty Osborne.
The conduct of lawyers is regulated by the Code of Professional Conduct of the Canadian Bar Association (the Code of Ethics), and by case law. The Code of Ethics states as its primary concern the protection of the public interest.
A client who retains a lawyer is entitled to receive the best services and the best advice that lawyer is capable of giving. If a lawyer is approached by someone who asks to be represented, the lawyer should agree to act only if he or she feels sufficiently familiar with the issues involved, and is free to devote the necessary effort to the case. If for some reason the lawyer feels unable to provide proper attention and good, independent advice to each and every client, the lawyer should refuse to act.
Once a lawyer takes on a case the lawyer must examine the facts of the situation, analyse them, consult legal authorities if necessary, and tell the client the strengths and weaknesses of his or her situation. The course of action the client wishes to take should be determined then. It is for the lawyer to advise and for the client to decide what he or she wishes to do. The lawyer may suggest to the client what should be done and if the client disagrees, the lawyer has the right to terminate the relationship and to suggest that the client seek other counsel. It is not, however, for the lawyer to tell the client what to do.
A lawyer who takes cases for those charged with criminal offences must represent them without fear or favour. The lawyer often is not popular when acting for certain unsavoury individuals. However, in the broader sense, that lawyer is performing a valuable service to society as a whole. The lawyer becomes a watchdog of civil and legal rights. It is to the lawyer that people turn, whether guilty or innocent, when those rights need protecting.
The obligation of a lawyer, when taking on a criminal case, is delicate. A lawyer is obliged to provide the client with the best defence possible. When doing so, the lawyer is protecting the interests of society by ensuring that people are not convicted improperly, and that the protections accorded by general principles of law and justice and by the Charter of Rights and Freedoms are not overlooked. The lawyer should inform the client of the likelihood of being acquitted or convicted on the basis of the facts as the lawyer understands them. The lawyer should advise the client of any options which may be available. If, for example, there is a possibility of conviction for a lesser offence but acquittal for the main offence, the lawyer should advise the client of that possibility. If the lawyer thinks it possible that the prosecutor might permit the client to plead guilty to the lesser charge and so avoid going to trial on the more serious one, it is the responsibility of the lawyer to so advise the client.
At trial the lawyer is entitled to put forward any and all possible defences. The lawyer must cross-examine witnesses to test their truthfulness, their recollection and their accuracy. The lawyer should decide whether it is in the clients best interest for the client to give evidence or whether it is better to seek an acquittal on the basis that the Crown has not proved its case beyond a reasonable doubt.
The lawyer may not call a witness to state something the lawyer knows to be untrue. The lawyer cannot call an accused person as a witness and knowingly permit him or her to lie. If the client has admitted committing an offence to the lawyer, the lawyer may not allow the client to deny on the witness stand that he or she committed the offence. If such were to happen, a lawyer must withdraw from the case. The admission to the lawyer remains privileged, and must not be disclosed to anyone by the lawyer.
There is no prohibition preventing a lawyer from representing two or more clients accused of the same offence. However, doing so is fraught with danger and subject to some severe limitations. The Rule in Chapter V of the Code of Professional Conduct allows such representation with the consent of the clients given after the lawyer has made adequate disclosure to the clients. A lawyer cannot, however, represent multiple clients where "there is or is likely to be a continuing conflict" among the clients. Commentary 5 on the Rule provides in part:
The lawyer should, however, guard against acting for more than one client where, despite the fact that all parties concerned consent, it is reasonably obvious that an issue contentious between them may arise, or their interests, rights or obligations will diverge as the matter progresses.
This means that a lawyer can act for two or more clients only with the informed consent of those clients, and only if the lawyer is satisfied of his or her ability to represent appropriately the interests of each of them without compromising the duty to the other or others. If the involvement of each accused in the alleged criminal activity is similar, and if the procedure to be followed by each is the same, and if no interest or possible benefit to any of them are compromised, then the lawyer may act for two or more clients charged with the same offence.
The lawyer may not, under any circumstances, act where a contentious issue has arisen between the parties. Commentary 6 on the Rule states:
If, after the clients involved have consented, an issue contentious between them or some of them arises, the lawyer, although not necessarily precluded from advising them on other non-contentious matters, would be in breach of the Rule if the lawyer attempted to advise them on the contentious issue.
Where a contentious issue has arisen, the lawyer is required to refer the clients to other lawyers.
There is a further restriction on the role of a lawyer in a criminal case. It is absolutely improper for a lawyer to become a party to any criminal activity or to protect, by illegal means, anyone who has committed a criminal act. The lawyer is not to manufacture a defence. While a lawyer may advise his or her client to testify or to refrain from testifying, it is not appropriate for the lawyer to tell people what they should do or say to the police or as a witness in court. The lawyer cannot assume this authority by purporting to act for people he or she should not, or cannot, represent independently. TOP
The Conduct of DArcy Bancroft TOP
DArcy Bancroft was one of a very few lawyers practising criminal law in The Pas in 1971. After being called to the bar in 1969 he left Winnipeg to practise in The Pas. He saw himself as a specialist in civil and criminal litigation, and appears to have gained a reputation as effective counsel. His partner, Robert Mayer, who appeared before us in an attempt to shed some light on the role of Bancroft in the defence of Colgan, Houghton, Johnston and Manger, described him as a "good criminal lawyer" and an ethical one who would do nothing improper, but who could be at times "a little over-zealous." Bancroft, who passed away in 1974, was, in Mayers words, "the consummate advocate."
DArcy Bancroft was an unusual man who, while expressing dislike of the police, nevertheless had a good relationship with them, as he did with the Crown prosecutors with whom he came into contact during the course of his work. We heard that Bancroft included policemen and judges among his friends. He is said also to have had a tendency to "get too close to his clients," and to form friendships with clients, some of whom would on occasion stay with him. He was known to be a personal friend of Dwayne Johnstons.
In the course of the RCMP investigation of the Osborne murder, Bancroft acted for the four murder suspects and two potential witnesses. This had a considerable impact on the police investigation and on the conduct of the four suspects. The effect was so substantial and his actions so unusual that, although we hesitate to be critical of someone who is deceased and no longer able to defend himself, we feel we must take a close and careful look at the involvement of Bancroft. In examining his involvement we are aware that we do not know what the various parties told him. Robert Mayer told us that Bancrofts files were closed or given to other lawyers after his death and that, to the best of his knowledge, all Bancrofts records had been destroyed by 1984. We accept the caution of veteran Saskatchewan prosecutor Serge Kujawa, who appeared before us, that it is dangerous to arrive at any conclusions with respect to the conduct of Bancroft without that information. We have tried accordingly to assess the evidence on this point most carefully before coming to any conclusions. We have considered carefully the correspondence which Bancroft sent to the Crown attorney and the police on behalf of the suspects, as well as the direct evidence of Colgan and Manger.
At various times during the summer and fall of 1972, Bancroft stated that he was acting for all four suspects as well as two potential witnesses. When the RCMP first received the letter sent by Catherine Dick in May 1972, they started to make inquiries about the people to whom the letter referred. Apparently, on June 14, 1972 they interviewed Gordon Buck, who was mentioned in the letter as having seen the car returning from the murder scene. The following day Cpl. John Fitzmaurice received a message to call Bancroft. When he did so Bancroft told him that he was representing Buck and that any questions the RCMP might wish to ask should be directed to Bancroft. It was established quickly that Buck had not been involved.
When the RCMP approached Lee Colgan, he spoke to his father and the two went to see Bancroft. According to Colgan, Bancroft told them that he already knew the story, that he did not need to hear anything further, and he told them to go home and not to speak with the police. On July 12, Bancroft wrote to the RCMP that he acted for Colgan and that Colgan was not to be questioned unless he, Bancroft, was present. On July 14, he wrote to the local Crown attorney stating that he acted for Bud and Lee Colgan, and had been asked by Frank Houghton to represent his son and Dale McDougall, whom he described as "a young lad who lives with the Houghtons and who is like a son to them." McDougall had been mentioned in the rumours reported to the RCMP by an informant. The rumours suggested that Houghtons blood-soaked clothing had been placed in a suitcase belonging to McDougall and later disposed of.
On September 26, 1972 Bancroft again wrote the RCMP. This time he said he was acting for Lee Colgan, James Houghton, Dwayne Johnston and Norman Manger concerning the "Investigation of death of Betty Osborne." Attached to this letter were documents confirming that Bancroft acted for them and that they were unwilling to answer any questions without the questions first being submitted to the lawyer in writing. The documents also said that Bancroft had been instructed to take all necessary steps to prevent them from being harassed by the police. In addition, he forwarded a letter signed by Manger withdrawing his consent to a polygraph test.
On the same day Bancroft sent another letter to the local Crown attorney along with copies of the documents sent to the RCMP. The letter suggested that the police were guilty of breaking laws relating to conspiracy, watching and besetting, intimidation and misuse of licence plates, and demanded that they stop. He asked that those responsible for the violations be punished. The last letter also enclosed statements of the various suspects and also of Bud Colgan, Bonnie Colquhoun, Johnstons landlady at the time, and Bancroft himself. These complained of various police actions. Johnstons statement also confirmed that Bancroft had been acting for him since early July.
There is no question but that the police would have had more chance of success in obtaining information from the suspects if Bancroft had not been so active on their behalf. We know that the local Crown attorney was concerned by Bancrofts intervention because he advised the police to back off somewhat. The RCMP themselves said that the letter had quite the opposite effect. Moorlag told us that the officers involved in the investigation discussed Bancrofts letter and its demand they have no further direct contact with the four suspects. Of their response, he commented, "Well, we were determined to have further contact with them." Nevertheless, Bancrofts actions on behalf of his clients clearly were effective. The four suspects managed to avoid answering for Osbornes murder for so long because they were well advised by Bancroft as to their rights under the law. The difficult question is whether he was merely protecting his clients interests, or whether he had sacrificed the interests of some of his clients to benefit others.
The RCMP officers, who were attempting to get one or more of the suspects to talk to them, clearly felt that DArcy Bancroft acted improperly in representing all four suspects and two potential witnesses as well. The problem we have in commenting upon the conduct of Bancroft is that we do not know what any of the suspects told him. Bancroft should, of course, have interviewed each client separately to hear his story and to obtain all possible information about his involvement. Had he done this he surely would have realized he had a different responsibility to each of them. If Bancroft had been told the truth about the involvement of each in events leading up to the murder, he would have been correct in assuming that each of them might be convicted of some offence. Indeed, the state of the law at the time was such that someone who drove a car in which murderers rode to and from the scene, and anyone who offered encouragement of acts that led to murder, might also be convicted of murder.
The "constructive murder" rule as it existed in 1971 resulted from the combined effects of s. 21(2) and s. 213. In R. v. Trineer,  3 C.C.C. 289 (S.C.C.), the court said that where one of a group of accomplices commits murder during the course of another offence, all the accomplices will be guilty of murder if it can be proved that each ought to have known that bodily harm would be inflicted on the victim in order to facilitate the commission of an offence.
This rule has been altered considerably under the Canadian Charter of Rights and Freedoms and R. v. Vaillancourt,  2 S.C.R. 636. It is now required that intent to murder be proven in relation to each accomplice.
Even if only one person had committed the murder, the others might be convicted of some lesser, yet serious, charges. If, however, it could be shown that all four were aware that an assault would be made upon Osborne and, given that Johnston is alleged to have pulled her into the car, it would appear that that could be shown, then all four suspects might be liable to a conviction for murder. In either case, Bancroft would have been justified in telling them that they did not have to incriminate themselves by making a statement to the police.
This role of defence counsel is not always understood by the public. What may at times appear to be the protection of criminals by lawyers may only incidentally be that. A lawyer is cloaked with certain privileges which he or she must exercise on behalf of clients. In some societies people are presumed to be guilty when they are arrested and accused by the state. In such places those people must prove their innocence. In other societies an accused person is obliged to make a statement dealing with an involvement in or knowledge of a crime.
In the Anglo-Canadian justice system, there are certain rights and principles that apply to a person suspected of having committed an offence. Others apply once a person has been charged. One principle is that a person is presumed to be innocent and remains innocent unless or until the state (the prosecution) establishes guilt beyond a reasonable doubt. Another basic principle of our system of justice is that a person cannot be called upon to supply the evidence for his or her own conviction. From that springs the principle that a person does not have to give a statement to the police. Statements are not received by a court unless freely and voluntarily given.
Bancroft would have told those who approached him in this case that they had those rights. He clearly went the next step as well and advised all of them to stand on their right to refuse to say anything to the police.
It is not surprising that the police and others concerned about finding the murderers might not be pleased when confronted by suspects relying on their rights, nor would they be pleased with a lawyer who was giving that advice. Some may have had the impression that the lawyer was obstructing the course of justice. Because we do not know what the suspects said to Bancroft when they went to see him, we cannot be critical of his advice to them not to talk to the police.
We received differing opinions about Bancrofts conduct from two experts who testified before us. Graeme Garson, a former chief executive officer of the Law Society of Manitoba, felt that Bancroft had breached his ethical responsibilities in representing the four suspects. Serge Kujawa, a senior Crown attorney in Saskatchewan, was more guarded and noted that he would have to know more of what Bancroft had been told before he would judge his conduct. He did agree that Bancroft may have breached his duty as a lawyer but noted that there is no rule which states that a lawyer must not act for two persons charged with the same offence, and commented, "[T]here is nothing on the face of it that says that he necessarily acted improperly." We share this latter view.
If, on the other hand, Bancroft had known that one or more of his clients had been involved directly in the killing and the others had not been, our conclusion would be quite different. In those circumstances Bancroft could not have given the appropriate advice to one without jeopardizing the position of another. He would have had to decline to act for any of them and told each to engage a separate lawyer. The Code of Professional Conduct is quite clear in prohibiting any lawyer from acting for multiple clients, whether charged or not, once their interests have diverged.
Lee Colgans father seems to have had some concerns in this regard. When he talked with Corporal Stewart and Constable Moorlag on October 29, 1972, he said he intended to seek independent legal advice because he felt that a conflict of interest existed and that Bancroft was not representing his sons best interests. There is no indication that Bud Colgan actually sought an independent lawyer, but it is clear he was not completely comfortable with the arrangement with Bancroft.
There are two areas in which Bancroft clearly was wrong. He should not have written to the Crown attorney personally attesting to the good character and innocence of his clients. In his letter of July 14, 1972 to the Crown attorney he said:
The writer can assure you that he is personally satisfied that the boys had nothing to do with it.... Further, the writer knows Lee Colgan and the Colgan family very well and, in the writers opinion, there is no possibility that Lee Colgan could be involved in such an event. (Exhibit 16)
He suggested that the investigation had turned into persecution.
A lawyer may defend, submit arguments or positions, but should not set aside his or her professional independence. A lawyer personally or emotionally involved in a case should decline to act and should send the clients to another lawyer. It might be that Bancroft believed in the innocence of his clients. Even so, Bancroft should have separated his personal beliefs as a friend from his professional role as an advocate. He should not have sent such a letter.
The second area in which Bancroft did not give independent advice was in his dealings with Bud and Lee Colgan. He should not have sent them away, saying that he knew the story. He had an obligation to listen to what they had to say and assess the situation from Lee Colgans standpoint alone. The fact he did not act in this way was a serious breach of professional ethics. TOP
The Conduct of John Scurfield TOP
John Scurfield, the president of the Law Society of Manitoba at the time he appeared before us, acted as counsel for James Houghton at his preliminary hearing and trial. Colgan testified before us that, after the preliminary, he had been asked by Jack Halliday, a friend of Houghtons, to go to Winnipeg to speak to Scurfield, although in his testimony to us Halliday denied this. Scurfield told us that Colgan asked for the meeting. In any event a meeting took place between Colgan and Scurfield in the latters office on September 23, 1987. Melanie Lautt, an associate of Scurfields, also was present.
Colgan said that his impression had been that Scurfield wanted him to make his testimony less harmful to Houghton than it had been at the preliminary hearing. Scurfield denied making any such suggestion and said he merely agreed to listen to Colgan, who had asked for the meeting. He said that Colgan told him that he would like to change his story because he had been told that it was hurting Houghton, but that he was afraid that if he did so he might lose his immunity from prosecution. Scurfield said that he told Colgan that if he were to change his story so that it more accurately reflected the truth, there would be no danger of losing his immunity. Scurfield said he ended the meeting by suggesting that Colgan speak with a lawyer. Scurfield paid Halliday for the expenses of his and Colgans trip to Winnipeg as he had been instructed to do by his client Houghton.
Colgan and Halliday spent the night in a Winnipeg hotel. During that evening Colgan wrote a note to Scurfield stating that he would change his testimony. That letter read:
Colgan delivered the letter to Scurfields office the next morning before returning to The Pas with Halliday. Colgan said he decided in the end not to change his testimony. He told the RCMP of the meeting on November 11, 1987, less than two weeks before the trial was to commence.
Crown attorney George Dangerfield told us that, during the trial of Houghton and Johnston, he spoke to Scurfield about the note and about the meeting. He believed that Scurfield was going to use the note in his cross-examination of Colgan in order to discredit Colgans testimony and thus increase the likelihood of Houghtons being acquitted. Dangerfield told us that he was annoyed when he thought that was Scurfields intention. This fact, combined with the pressure of conducting the trial, made him, as he put it, "a little raw." He informed Scurfield that if he used the statement, he would re-examine Colgan and bring out the fact that Scurfield had talked to Colgan and how he came to make the statement. Dangerfields intention in re-examining Colgan in this way would be to discredit any change in Colgans testimony.
Scurfield told us that he decided immediately after receiving the note that he would not use it during the trial. He remembered the meeting with Dangerfield differently. He believed that it was he who raised the matter. He said he thought that the letter would have been useless because the contents were unbelievable and because Colgan was so obviously an unreliable witness. He had sought and obtained Houghtons permission not to use the letter.
Neither Scurfield nor Melanie Lautt kept any record of what Scurfield acknowledged to be a very sensitive meeting. Scurfield told us that he was "extremely concerned about the meeting" and that he took "elaborate precautions" to ensure that the meeting could not be misconstrued. "Ethics," he told us, "have always been a very high consideration and I was very concerned that my integrity not be impugned by Mr. Colgan." Nevertheless, questions about the propriety of the meeting were raised at our hearings.
Despite his concerns, we conclude that Scurfield did nothing which compromised legal ethics when he agreed to interview Colgan or during the course of that interview. There is no ownership in a witness. This means that just because one party decides to call a witness, the other side is not precluded from talking to that person or calling him or her as a witness. Scurfield had every right to interview Colgan.
Indeed, once Colgan had indicated that he wanted to speak to him, Scurfield, in our opinion, had an obligation to speak to Colgan to hear what he wanted to say. Scurfield could have been accused of negligence had he declined to speak to Colgan and it later transpired that Colgan had some new or vital information of benefit to Houghton. Counsel has an obligation to pursue all possible avenues of defence including, if necessary, speaking to a person who has been called as a witness by the Crown.
One of the dangers of such an interview is that the witness and the lawyer may have different perceptions of the discussion. That happened in this case. Scurfield obviously was mindful of the delicacy of the situation, since he had an associate sit in on the interview. Even that was not enough to avoid the questions about its propriety which were asked at our hearings. We conclude, therefore, that it would be helpful if the Canadian Bar Association were to give guidance to counsel on how to deal with any future, similar incidents.
We recommend that:
These guidelines might suggest that lawyers take the following steps:
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