Her Majesty the Queen v. Napa Valley Private Winery Inc. [Indexed as: R. v. Moscuzza]

63 O.R. (3d) 636

[2003] O.J. No. 637

Docket No. C37503

Court of Appeal for Ontario

Carthy, Moldaver and MacPherson JJ.A.

February 27, 2003

Criminal law -- Crown -- Bias -- Allegation that retainer of lawyer to prosecute charges under Liquor Licence Act by General Counsel to liquor control board compromised independence and objectivity of Crown -- Lawyer signing retainer in which he agreed to be governed by any direction he might receive from acting Assistant Deputy Attorney General or designate and to comply with Practices and Procedures mandated by Ontario Crown Policy Manual -- Officer of Attorney General subsequently leaving employment with Attorney General and taking up full- time employment with Liquor Control Board while continuing to instruct lawyer -- No evidence that lawyer was biased, lacked independence or failed to comply with his obligations as Crown counsel in accordance with his retainer -- Crown appeal against order of costs on appeal allowed -- Accused's cross- appeal against dismissal of application for stay of proceedings dismissed -- Liquor Licence Act, R.S.O. 1990, c. L.19.

Professions -- Barristers and solicitors -- Crown counsel -- Bias -- Appeal court judge erring in concluding that retainer of lawyer to prosecute charges under Liquor Licence Act by General Counsel to Liquor Control Board compromised appearance and objectivity of Crown -- No evidence demonstrating that retained counsel did not act in compliance with obligations of counsel for Crown -- Appeal court order for costs set aside and conviction restored -- Accused's cross-appeal seeking stay of proceedings dismissed -- Liquor Licence Act, R.S.O. 1990, c. L.19.

G, a member of the Ontario bar in private practice, was retained to advise and represent the Crown in connection with an ongoing investigation into the illegal sale of liquor in Ontario by the defendants and others. He was retained by F in her capacity as an officer of the Attorney General, and was bound by a retainer agreement in which he agreed to "be governed by any direction" he might "receive from the acting Assistant Deputy Attorney General or his designate" and to "comply with the Practice and Procedures mandated by the Ontario Crown Policy Manual". F subsequently left her employment with the Attorney General and took up full-time employment with the Liquor Control Board. The defendants brought an application for a stay of proceedings, arguing that G's ability to conduct a prosecution fairly and independently was compromised by the facts that his legal fees were being paid by the Liquor Control Board and that he was being supervised by F in her capacity as a full-time officer and employee of the Board. The trial judge dismissed the application and convicted the defendants. The defendant's appeal was allowed in part. The appeal judge found that there was a loss of independence and objectivity on the part of the prosecution during the course of the proceedings. Although he did not say so expressly, he concluded that this loss of neutrality rendered the prosecution abusive. He held that this was not one of the clearest of cases calling for a stay of proceedings, and instead ordered the Attorney General to pay $25,000 towards the defendants' costs. The Crown appealed. [page637]

Held, the appeal should be allowed.

The concerns raised by the appeal judge were speculative and without evidentiary foundation. There was no basis for inferring, let alone concluding, that G did not comply with his obligations as Crown counsel in accordance with the terms of his retainer. That observation held true both during F's tenure with the office of the Attorney General (when she hired G on behalf of the Attorney General) and thereafter, when she left that position and assumed full-time employment with the Liquor Control Board.

APPEAL by the Crown from an order of costs of Gans J., [2001] O.J. No. 4624 (S.C.J.) (addendum to a judgment of Gans J. (2001), 2001 28069 (ON SC), 54 O.R. (3d) 459, [2001] O.J. No. 2608 (S.C.J.)) allowing in part an appeal from a decision dismissing an application for a stay of proceedings.

Statutes referred to Liquor Licence Act, R.S.O. 1990, c. L.19

Scott C. Hutchinson, for appellant. A. Edward Tonello, for respondents.

[1] BY THE COURT: -- The respondents were convicted by Her Honour Justice R. Shamai on April 25, 2000 of various offences under the Liquor Licence Act, R.S.O. 1990, c. L.19. In the course of the proceedings before Shamai J., the respondents brought two applications to have the proceedings stayed as an abuse of process on account of alleged Crown bias. Shamai J. dismissed both applications and convicted the respondents as charged.

[2] Following their convictions, the respondents appealed to the Superior Court of Justice seeking, among other things, a reversal of Shamai J.'s rulings on the stay applications. Gans J. allowed the appeal in part. He found that there was a loss of independence and objectivity on the part of the prosecution during the course of the proceedings and although he did not say so expressly, he concluded that this loss of neutrality rendered the prosecution abusive.

[3] With respect to remedy, Gans J. was not satisfied that this was one of the clearest of cases calling for a stay of proceedings. He did, however, order that the Attorney General pay $25,000 towards the respondents' costs. In Gans J.'s opinion, such an award "would go a long way in insuring that retainers of outside counsel are not undertaken by Crown corporations in future without the requisite supervision of the Office of the Attorney General".

[4] The Crown appeals from the order of Gans J. and seeks to have it overturned. The respondents cross-appeal and seek to [page638] have the remedy ordered by Gans J. varied from an award of costs to a stay of proceedings.

[5] For the brief reasons that follow, we are of the view that the appeal should be allowed, and the order of Gans J. set aside.

[6] The stay applications brought by the respondents centred primarily on the retention of Mr. Gover (a member of the Ontario bar in private practice) "to advise on and represent the Crown" in connection with an ongoing investigation into the illegal sale of liquor in Ontario by the respondents and others. In particular, the respondents alleged that Mr. Gover's ability to conduct a prosecution fairly and independently was compromised by the fact that his legal fees were being paid for by the Liquor Control Board and he was being supervised by Ms. Fitzpatrick in her capacity as a full-time officer and employee of the Board. With respect to the latter concern, the respondents pointed to the fact that after retaining Mr. Gover in her capacity "as agent acting on behalf of the Attorney General", Ms. Fitzpatrick left her position of employment with the Attorney General and took up full-time employment with the Liquor Control Board. Thereafter, the respondents allege that Mr. Gover was effectively taking his instructions from and retained by the Board, as opposed to the Attorney General. As indicated, Shamai J. found those allegations to be unfounded. We agree.

[7] Having been retained by the Attorney General to represent the Crown in connection with the investigation and possible prosecution of the respondents and others for illegal liquor sales, Mr. Gover was required, as Crown Counsel, to conduct himself with objectivity and fairness. His commitment to do so is found in the retainer agreement of January 15, 1998 in which Mr. Gover agreed, among other things, to "be governed by any direction" he might "receive from the acting Assistant Deputy Attorney General or his designate" and to "comply with the Practice and Procedures mandated by the Ontario Crown Policy Manual". As Gans J. observed in his reasons, the preamble to that manual provides that:

Crown counsel play a pivotal role in the criminal justice system. Only Crown counsel empowered to fully and independently exercise their discretion can bring about a fair trial of those accused of an offence and the protection of the many interests of the public.

[8] In her reasons of November 19, 1998 dismissing the respondents' application for a stay, Shamai J. found that there was no basis to infer, let alone conclude, that Mr. Gover had acted other than in accordance with the terms and conditions of his retainer. In coming to that conclusion, Shamai J. was fully aware of [page639] Ms. Fitzpatrick's altered job status as of August 1998. In that regard, she made the following observation in her reasons:

The plain language of the letter of retainer covers the necessaries of delegation in virtually the language of the relevant jurisprudence. It covers the eventuality that the law officer of the Crown may not continue to be instructing counsel, and it carefully adverts to the dual aspects of [the] retainer . . .

(Emphasis added)

Shamai J. then went on to find that there was "no foundation" to the suggestion that Mr. Gover had acted in contravention of the terms of his retainer.

[9] Shamai J.'s opinion remained the same on the renewed application for a stay of proceedings brought by the respondents on December 6, 1999. In her reasons dated March 20, 2000, Shamai J. found that "none of the circumstances which have been offered as fresh evidence amount to admissible evidence which is, in any way, of probative value or even persuasive with respect to the issues set out as the basis of the application here."

[10] On appeal, Gans J. took a different view of the matter. At para. 16 of his reasons, he explained the reasoning process that led him to conclude that Shamai J. had erred:

In the first place, I have analyzed the duties, role and obligations of Crown attorneys, generally. I then reviewed the particular retainer to determine whether there was any conflict between theory and reality and if so, to what extent. As a result of this approach, my conclusion on certain of the issues under appeal differs from that of the learned trial judge.

[11] Gans J. then commenced his analysis by observing, correctly, that Crown counsel serve in a quasi-judicial capacity and that when instituting or staying proceedings, they are to demonstrate "independence and arrive at any such decisions objectively, impartially and in an even-handed manner". He then continued as follows:

The relationship between Ms. Fitzpatrick and Mr. Gover lost the mantle of the Attorney General and the objectivity attendant thereto when she resigned her posting with that office. In the fall of 1998 and thereafter, their relationship can only be construed as a classical solicitor- client relationship where the client (the Board) would have the ultimate decision-making responsibility, which responsibility, by definition, would include the right to continue or stay proceedings. In my view, the term contained in the retainer letter which "required" Mr. Gover to follow the directive of the Acting Deputy Attorney General or his designate was mere window dressing. From a practical point of view, it was of little or no effect.

Because Ms. Fitzpatrick was no longer an officer of the Attorney General, it was safe to conclude that Mr. Gover was arguably no longer acting like other "rent-a-Crowns" who are hired to prosecute cases on an ad hoc basis. He was [page640] then in a position of receiving instructions from one who is no longer bound by the independence and impartiality of the Crown law office. The indifference between winning and losing was no longer a guiding principle. Winning was, presumably, of paramount importance.

In my respectful summation, absent any evidence to the contrary, Justice Shamai erred in concluding that Mr. Gover was still subject to supervision from the office of the Attorney General, in the person of Mr. Segal or his designate.

Accordingly, I believe this court could and should conclude that there was, therefore, more than the mere suggestion of overlap between the investigator-client and Crown counsel. This relationship would lead to the unalterable conclusion that the objectivity of Crown counsel would or could be lost.

Having concluded that the principles of independence and objectivity were or may not have been met by the form of retainer, I must now determine what remedy, if any, should be fashioned as a result.

[12] With respect, we are of the view that the concerns raised by Gans J. are speculative and without evidentiary foundation. There is no basis on this record for inferring, let alone concluding, that Mr. Gover did not comply with his obligations as Crown counsel in accordance with the terms of his retainer. That observation holds true both during Ms. Fitzpatrick's tenure with the office of the Attorney General (when she hired Mr. Gover on behalf of the Attorney General) and thereafter, when she left that position and assumed full- time employment with the Liquor Control Board.

[13] As indicated, the retainer entered into by Mr. Gover contained a term requiring that he be governed by any direction received from the Acting Assistant Deputy Attorney General or his designate and that he comply with the Practices and Procedures mandated by the Ontario Crown Policy Manual. In her role as trier of fact, Shamai J. found that Mr. Gover complied throughout with the terms and conditions of his retainer. That finding was available to her and in our respectful view, there was no basis for interfering with it on appeal.

[14] Accordingly, we would allow the appeal and set aside Gans J.'s order.

Appeal allowed.