ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Dimitri Davidov
Before Justice J. De Filippis
Heard on January 30, 2019
Reasons for ruling released on February 19, 2019
Mr. S. Marinier counsel for the Applicant
Mr. D. Goodman counsel for the Respondent
INTRODUCTION
1This is an application by the Crown to remove Mr. Michael Simrod as counsel of record for Mr. Dimitri Davidov.
2On November 19, 2017 a truck driven by Omari Kutaladze crossed from the United States into Canada. A search of the vehicle revealed a large quantity of cocaine. The driver was arrested for importation of a controlled substance. Subsequently, Mr. Davidov was arrested for conspiracy to commit the substantive offence. Mr. Simrod is his lawyer. Mr. Davidov is an employee of a commercial trucking company owned by Sergei Churilov. So was Mr. Kutaladze at the time of his arrest. Mr. Churilov is named as an unindicted co-conspirator in the charge before this court. During the course of the court proceedings, Mr. Churilov expressed an interest in obtaining access to the disclosure provided to Mr. Kutaladze. This material was later stolen after the lawyer for Mr. Kutaladze was attacked in his office.
3The issue in this matter is whether there is a relationship between Mr. Churilov and Mr. Simrod that places the latter in a conflict of interest. I have concluded that the application must succeed and that Mr. Simrod cannot act as counsel for Mr. Davidov.
4Before setting out my reasons, I will describe the evidentiary record. The Crown filed an Application Record that includes a Notice of Motion and an Affidavit, with numerous exhibits, sworn by Ms. Dalila Sousa (a paralegal employed by the Public Prosecution Service of Canada). In addition, the Crown called three witnesses whose statements are included in the exhibits attached to the Affidavit. They were cross-examined by the Respondent. Apart from this cross-examination, the Respondent did not challenge the affiant or otherwise contradict the matters deposed to by her. The Respondent filed a Notice of Response with an attached factum. The Respondent did not call evidence at this hearing.
AFFIDAVIT EVIDENCE
5On November 19, 2017, Mr. Kutaladze, a commercial truck driver employed by Boreas Logistics, arrived at the Queenston-Lewiston bridge from Texas. His trailer was searched and officers with the Canada Border Service Agency located approximately 50 kilograms of cocaine concealed in large cardboard boxes which contained plastic resins. Mr. Kutaladze was arrested and charged.
6The owner of Boreas Logistics is Mr. Churilov. Mr. Davidov is a dispatcher for the company and has been employed there for many years. In 2006, Mr. Churilov was arrested in the United States for possession of drugs for the purpose of trafficking and later sentenced to 90 months’ imprisonment.
7As a result of the seizure of the cocaine, the R.C.M.P. began an investigation, known as Project Ocher, that continues to this day. The police claim to have evidence that before the cocaine was intercepted at the border, Mr. Churilov and Mr. Davidov had contacted Wilbri Inc, a truck repair company in the state of New York, in an effort to enlist their assistance in fabricating a story about repairs needed for the vehicle Mr. Kutaladze was driving. This was done in an attempt to explain the delayin delivery of the plastic resins to the buyer.
8Mr. Kutaladze retained a senior criminal lawyer from Toronto to deal with his charges. Before disclosure was provided, that lawyer agreed to give an undertaking with respect to the material received about Project Ocher. This undertaking limits the use and further distribution of the disclosure.
9Mr. Kutaladze later provided a sworn video recorded statement to the RCMP and the charges against him were withdrawn by the Crown. He is expected to testify at future proceedings in this prosecution. Among other things, Mr. Kutaladze deposed that he had refused the suggestion by Mr. Churilov to retain the company lawyer but had accepted his offer that part of his Toronto lawyer’s legal fees be paid by Boreas Logistics. Mr. Kutaladze also said that in May or June, 2018, Mr. Churilov asked him for a copy of the disclosure provided to his lawyer. After consulting with his lawyer, Mr. Kutaladze told Mr. Churilov he would not get access to the disclosure.
10Subsequently, on July 15, 2018, two men, one armed with a knife, burst into the offices of Mr. Kutaladze’s lawyer in Toronto and demanded the “Kutaladze file”. This was turned over to the assailants. They tied up the lawyer and left. When he freed himself, the lawyer contacted the Toronto Police Service. The robbery is currently under investigation.
11After this robbery, Mr. Davidov was charged with the present offence and he retained Mr. Simrod to represent him. The Crown asked Mr. Simrod to sign the same disclosure undertaking agreed to by Mr. Kutaladze’s lawyer. During this exchange of email messages, the Crown also raised the issue of a conflict of interest with respect to Mr. Churilov and Mr. Davidov. Mr. Simrod refused to sign the disclosure undertaking and responded to the second issue by stating that “In my mind, I have no solicitor client relationship with Mr. Churilov”. He added that he never accepted a formal retainer from Mr. Churilov and that “many in community view me as they lawyer”.
12The Crown’s concern about a conflict of interest is based on an encounter between the police and Mr. Churilov before the arrest of his second employee, Mr. Davidov. That is discussed below. The Crown brought an application in the Superior Court of Justice to have Mr. Simrod be removed as counsel or for an order compelling him to sign the disclosure undertaking. On November 22, 2018, the Superior Court of Justice dismissed the application to remove Mr. Simrod as counsel for Mr. Davidov, without prejudice to the Crown proceeding with a similar application in the Ontario Court of Justice, and granted the Crown’s request that Mr. Simrod sign an undertaking (on specified terms) with respect to disclosure to be received by him.
TRIAL TESTIMONY
13Some of the evidence summarized above was reiterated by the testimony of three witnesses. What follows is a summary of certain points elaborated upon by them, including relevant cross-examination.
14On April 11, 2018, before the robbery of the Toronto lawyer, Sgt. Stewart and Cst. L’Heureux of the RCMP, accompanied by CBSA Officer Priebe travelled, by car, from Niagara Region to the Newmarket Detachment of the RCMP for a pre-arranged meeting with Mr. Davidov to take a second statement. Cst. L’Heureux telephoned Mr. Davidov on route to confirm the appointment. Mr. Davidov told her he was stressed out from the first statement and would not speak to the police again. He referred them to his lawyer, Mr. Simrod. The investigators went to the offices of Boreas Logistics in Concord to speak to Mr. Davidov in person. They met him in the lobby and went outside the front doors to speak in private. In less than a minute a car, driven by Mr. Churilov, arrived and parked. He exited that vehicle and joined the group. Cst. L’Heureux identified herself to him and asked if he would speak to them. Mr. Churilov declined to do so and referred them to his lawyer, Mr. Simrod. This conversation was in English.
15Cst. L’Heureux agreed with Respondent’s counsel that Mr. Churilov spoke with an accent. She intended to take a “warned statement” from him as he was under investigation. The officer’s notes reveal that he told her to “go through lawyer” but these words are “shorthand”, not his exact words. When she asked “who is your lawyer” or “who do I speak to”, Mr. Churilov said “Michael Simrod”. He did not provide her with any contact information. Cross-examination continued with this exchange:
Q: You can’t say if there is a solicitor client relationship between Mr. Churilov and Mr. Simrod?
A: Yes, I thought there was as he said he was his lawyer.
Q: But you didn’t follow up [by calling Mr. Simrod]?
A: No
16CBSA Officer Priebe heard Mr. Churilov decline to give a statement and refer the police to his lawyer but does not recall the name of a lawyer being given.
17Sgt. Stewart confirmed much of the testimony of Cst L’Heureux. He noted that Mr. Churilov spoke with a Russian accent, appeared to understand the conversation to which he was a party, and declined to speak to them “on the advice of his lawyer” about this investigation. In this regard, he heard Mr. Churilov refer his fellow officer to Mr. Simrod. He added that he cannot recall if Mr. Simrod’s first name was mentioned by Mr. Churilov but rejected the suggestion that a name other than “Michael” might have been given. He explained that he knew Michael Simrod was counsel to Mr. Davidov and if a different first name had been referenced, this would have stood out and been noted by him.
LEGAL PRINCIPLES
18The right to counsel of choice is a fundamental right, protected by section 7 of the Charter of Rights and Freedoms: R v Clarke, 2012 NSSC 406, 2012 N.S.J. NO. 616. It is not an absolute right. A court may remove a lawyer from the record for conflict of interest as part of its supervisory jurisdiction over officers of the court and their conduct in legal proceedings that may affect the administration of justice. In such a case, the integrity of the judicial system trumps the right of a person to choose counsel: MacDonald Estate v Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235 (S.C.C.).
19Conflicts of interest usually arise where there has been a breach of the duty of confidentiality and/or loyalty. A conflict can arise where there is a risk of trial unfairness, where the integrity of the justice system is at risk, or where there is a public perception that the administration of justice would be brought into disrepute: R v Clarke, supra; adopted in R v Downey, 2013 ONSC 138.
20When the Crown becomes aware of an apparent, potential, or real conflict of interest on the part of counsel involved in a prosecution, it has a duty to bring this concern to the attention of the court as soon as practical: R v Chen (2001), 2001 28044 (ON SC), 53 O.R. (3d) 264 (Ont.S.J.). In such a case, the court must conduct an inquiry as soon as possible in advance of trial. This means the court cannot simply accept an assertion by the subject lawyer that there is no conflict of interest: R v Bilmez (1995), O.J. No. 2470 (Ont.C.A.).
21In MacDonald Estate, supra, the Supreme Court of Canada held that the Law Society’s Rules of Professional Conduct provide the judiciary with the appropriate standards against which to assess issues of conflict of interest. In Ontario, those rules stipulate that lawyers owe their clients a duty of confidentiality. This means the client can be assured that what is told to the lawyer will forever be kept in strict confidence and facilitates candid discussions between the parties.
22A lawyer must also be loyal to a client. This means the lawyer must avoid situations that would adversely affect his/her judgment on behalf of, or loyalty to, a prospective client, or retainers in which s/he might be tempted to prefer the interests of one client (past, present or future) over another: R. 3.4-1, Rules of Professional Conduct, Law Society of Ontario.
23The duties of confidentiality and loyalty protects not only the client, but also the integrity of the judicial system, and the public’s confidence in it. Thus, a lawyer cannot act if there is a realistic risk of conflict of interest – apparent, potential, or real. Where, in such circumstances, the lawyer does not withdraw from the case, the court must intervene: R v Widdifield, 1995 3505 (ON CA), [1995] O.J. No. 2383 (Ont. C.A.).
24The two questions to be asked in determining if a conflict of interest exists was articulated by the Supreme Court of Canada in MacDonald Estate, supra. First, did or will the lawyer receive confidential information attributable to a solicitor-client relationship relevant to the matter at hand? Second, is there a risk that the confidential information of one client will be used to prejudice the other?
25Mere conjecture is insufficient to remove counsel. There must be an evidentiary foundation that establishes a realistic risk of conflict of interest. However, as noted by Justice Doherty in Widdifield, supra,“…trial judges must, to some degree, speculate as to the issues which may arise and the course the trial will take….trial judges must proceed with caution and when there is any realistic risk of a conflict of interest, they must direct that counsel not act…”.
SUBMISSIONS
26Mr. Marinier expressed the concerns of the Crown/Applicant as follows:
Potential conflicts of interest inevitably arise where one lawyer represents an accused who is alleged to have been involved in criminal activity involving another client or former client. Real, pragmatic concerns would arise if another client, or a former client, were to become a Crown witness against the current client, or as is expected is this case, Mr. Davidov is likely to claim Mr. Churilov is responsible for the importation of the 50 kilograms of cocaine seized. This would impact the defence of Mr. Davidov. The following dangers could place Mr. Simrod in an impossible position of divided loyalties:
Mr. Simrod could inadvertently reveal the confidences of his other client, or former client, Mr. Churilov, upon examination or cross-examination of witnesses on behalf of Mr. Davidov, whether Crown or defence witnesses;
In an effort to avoid misusing any confidential information of Mr. Churilov, Mr. Simrod could fail to fully explore legitimate areas of examination or cross-examination, thereby depriving Mr. Davidov of the best possible defence.
In an effort to preserve the confidences or his relationship with one or the other client or former client, Mr. Simrod may engage, refuse to engage or tailor plea negotiations such that they favor one client over another.
27The Respondent filed a Notice of Response. It may have been prepared in haste; at the very least, it was not reviewed prior to service and filing. The cover sheet refers to a response in the “Superior Court of Justice”. The first page of the response is styled in the “Ontario Court of Justice”. However, one or more pages is missing after the first page: The attached three-page factum is styled in the “Superior Court of Justice” and includes submissions about why Mr. Simrod should not be required to sign a disclosure undertaking. It is obviously a reproduction of the pleadings in the Superior Court Application previously brought by the Crown and disposed of, as noted above, on November 22, 2018. This document cannot assist me. I will rely on the Respondent’s oral submissions.
28Mr. Goodman submits that the evidence is insufficient to support the order requested by the Applicant because the “entirety of this application is based on a conversation with Mr. Churilov of less than one minute” in which in which he told the police to speak to his lawyer, Michael Simrod. Moreover, this must be considered along with Mr. Simrod’s statement to the Crown that ‘in his mind’ there was no solicitor client relationship. At most, it was a limited relationship of undefined character.
29The Respondent urged me to follow the decision of Justice Durno in R v Tunstead, 2013 ONSC 7137 (Ont. S.C.). This case is distinguishable. In Trunstead the alleged conflict arose because the subject lawyer had represented the two co-accused at their bail hearings. The Crown later severed the two accused and served notice it would call one against the other at separate trials. The subject lawyer remained on the record for one of the accused. Justice Durno accepted the evidence called before him that the subject lawyer’s relationship with the two accused at their bail hearing was restricted to the purposes of that proceeding; i.e. proposing a plan of release. The lawyer played an isolated and minor role and this was confirmed in evidence by the client. Justice Durno ruled that, “in the context of this application the final value would encompass permitting counsel to assist persons requiring immediate assistance without automatically precluding counsel from appearing for another accused person in the same proceeding”. In the present application, the Respondent did not call evidence and the context is significantly different.
CONCLUSIONS
30The background revealed by the evidence before me shows that Mr. Churilov has a personal interest in Project Ocher that goes beyond a concern for the welfare of one or two employees. It is alleged that he and Mr. Davidov tried to persuade persons at an American company to lie about why the truck carrying the cocaine had been delayed. Mr. Churilov offered to provide Mr. Kutaladze with his “company lawyer”. When this offer was rejected, he paid part of the legal fees for his employee’s counsel of choice and sought access to the relevant disclosure through that relationship. This material was later stolen, with violence, from Mr. Kutaladze’s lawyer by two unknown assailants. When police asked to speak to Mr. Churilov, the latter declined to make a statement and referred them to his lawyer, Mr. Simrod. On the same day and place, Mr. Davidov also declined to make a (second) statement and referred the police to Mr. Simrod. Mr. Davidov is charged with conspiracy to import a substantial amount of cocaine and Mr. Simrod is counsel of record. The investigation into that matter is ongoing. Mr. Churilov is presently an unindicted co-conspirator. That could change or he could become a witness.
31I do not accept the Respondent’s argument that the email exchange between Mr. Simrod and Mr. Mariner defeats the application. Mr. Simrod wrote that ‘in his mind’ there was no solicitor client relationship with Mr. Churilov. That does not even rise to the level of a bald assertion. It is an ambiguous comment. And it is illuminated by his explanation that he never accepted a formal retainer from Mr. Churilov and that “many in community view me as they lawyer”. This suggests that a confidential relationship did and/or does exist between Mr. Simrod and Mr. Churilov.
32In any event, there can be no doubt what was ‘in the mind’ of Mr. Churilov. He did not mention the name of a lawyer in a casual conversation with a friend or business associate. He did so in response to a police officer’s request to talk about a serious charge. Mr. Churilov exercised his right not to give a statement to a person in authority “on the advice of his lawyer” and named that person as Michael Simrod. In these circumstances, the fact that this discussion occurred in less than one minute is irrelevant. In fact, Mr. Churilov’s response is a complete answer to the officer’s request to talk. Nothing more needed to be said.
33The Crown submits that “the evidence reasonably supports the conclusion that Mr. Simrod is, or is likely to be, in possession of confidential information from Mr. Churilov, a client or former client, and an unindicted co-conspirator, which is relevant to the current matter in which he is retained to act on behalf Mr. Davidov.” I agree. This conflict of interest is magnified by Mr. Churilov’s personal interest in an investigation that involves two of his employees. As such, the conflict could adversely affect trial fairness and the integrity of the justice system.
RESULT
34Mr. Simrod is removed as counsel for Mr. Davidov. He will comply with any disclosure undertakings that arise as a result of this order.
35This prosecution has been case managed by Justice ODonnell and is returnable before him, for that purpose, on February 19, 2019 at 9 AM in chambers. Since Mr. Davidov is now without counsel, I direct that he appear before Justice ODonnell on that date at 10 AM, in courtroom no. 7.1
Released: February 19, 2019
Signed: Justice J. De Filippis