DATE: 20030424 DOCKET: C12090/M29774

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) - and - ROBERT BALTOVICH (Appellant)

BEFORE:

ROSENBERG J.A. (In Chambers)

COUNSEL:

John Corelli and Howard Leibovich for the respondent, the moving party

Brian H. Greenspan and Philip Campbell for the appellant, Robert Baltovich

HEARD:

APRIL 22, 2003

ENDORSEMENT

[1] This is an application by the Crown to remove Mr. James Lockyer and Ms. Joanne McLean as solicitors of record for the appellant Robert Baltovich. The application is based on the fact that Mr. Lockyer acted for Paul Bernardo following Bernardo's conviction on two counts of first degree murder. In the course of the application, it became apparent that it would be possible to achieve a solution that would reconcile Mr. Baltovich's interest in counsel of choice without compromising Mr. Bernardo's rights as a former client of Mr. Lockyer. However, because I think it important that the public understand the background to the application and because, for reasons that I will explain, Mr. Bernardo was not represented on this application, I intend to set out some of the background to this application and some of the applicable legal principles.

[2] In June 1990, Elizabeth Bain disappeared. Her body has never been found. Robert Baltovich was ultimately charged with her murder and on March 31, 1992, he was convicted. At the time Ms. Bain disappeared, the so-called Scarborough rapist was committing his crimes in Scarborough. Ms. Bain was known to frequent the Scarborough area of Toronto. A theory of the defence at the Baltovich trial was that the Scarborough rapist may have abducted and killed Ms. Bain. The identity of the Scarborough rapist was then unknown.

[3] Mr. Baltovich appealed his conviction and was initially represented by Mr. Brian Greenspan. A ground of appeal raised by Mr. Greenspan concerned the trial judge's charge to the jury concerning the "Scarborough rapist theory" of the defence.

[4] After Mr. Baltovich's trial, Mr. Bernardo was arrested and it is now known that he was the Scarborough rapist. As is well known, Mr. Bernardo was also charged and convicted on two counts of first degree murder for the killings of two teenage girls. He was convicted on September 1, 1995. In separate proceedings he was found to be a dangerous offender on November 3, 1995.

[5] In 1996, Mr. Anthony Bryant, one of Mr. Bernardo's trial lawyers, approached Mr. Lockyer, an experienced appellate counsel, to prepare an opinion letter for Legal Aid to obtain funding for Bernardo's appeal. Mr. Lockyer agreed. The attempt to obtain legal aid was unsuccessful. Mr. Bryant then made applications to this court under s. 684 of the Criminal Code to have counsel appointed. That application was ultimately successful. The reasons of the Court of Appeal dated December 19, 1997 are now reported at (1997) 1997 2240 (ON CA), 121 C.C.C. (3d) 123. An edited copy of Mr. Lockyer's opinion letter was filed on that application. Mr. Lockyer supported the granting of legal aid, submitting that there was merit to the appeal concerning jury selection procedure and admissibility of evidence of battered spouse syndrome. A third potential ground of appeal was edited out of the material filed before the Court of Appeal.

[6] Mr. Lockyer's retainer in the Bernardo matter ended sometime in 1997, after Mr. Bernardo was refused legal aid. However, while Mr. Lockyer was retained, a member of his former firm spoke to Mr. Bernardo in person and Mr. Lockyer spoke to Mr. Bernardo on two occasions by telephone. Mr. Lockyer did not appear on the s. 684 motions and did not argue the appeal. This court dismissed Mr. Bernardo's appeal in March 2000.

[7] Meanwhile in January 1999, Mr. Baltovich approached Mr. Lockyer to have him act on his appeal. Mr. Lockyer initially refused and instructed Mr. Baltovich to speak to Mr. Greenspan about any concerns he had about the progress of the appeal. After several months, Mr. Lockyer agreed to represent Mr. Baltovich and he formally notified the Crown of the change of counsel in a letter dated May 19, 1999. Ms. McLean is assisting Mr. Lockyer on the appeal.

[8] Now that the identity of the Scarborough rapist is known and, moreover, now that it is known that he abducted and killed at least two of his victims, Mr. Baltovich now wishes to adduce fresh evidence on his appeal to show that Mr. Bernardo killed Elizabeth Bain. The Crown submits that this places Mr. Lockyer in a position of conflict with his former client, Mr. Bernardo. Crown counsel submits that Mr. Lockyer received confidential information from his former client. By acting on the appeal and seeking to show that the former client is guilty of the killing for which Mr. Baltovich was convicted, the Crown submits that Mr. Lockyer is in a conflict of interest and in breach of his duty of loyalty to the former client.

[9] At my direction, Mr. Bryant who continues to act for Mr. Bernardo, was notified of this application. On the instructions of his client, Mr. Bryant supports the Crown's position. However, Mr. Bryant did not attend this application because the Crown would not agree to an order that he should be paid more than the legal aid rates. Mr. Bryant did not attend before me to make such an application. Nevertheless, his and Mr. Bernardo's position are clear.

[10] Something should be said about the timing of this application. The fact that Mr. Lockyer had written the Bernardo opinion letter has been known since at least 1997. The fact that he would be arguing a fresh evidence application pointing the finger at Mr. Bernardo has been known to the Crown at least since the fall of 1999. What the Crown only learned recently was that confidential information, of some kind, was provided to Mr. Lockyer by Mr. Bernardo and Mr. Bryant. Mr. Bernardo wrote a letter to Mr. Lockyer in October 1999 complaining about his being in a conflict of interest in taking the Baltovich appeal. For unknown reasons, Mr. Lockyer did not receive that letter and he was unaware of Mr. Bernardo's position until very recently. The letter and the concern came to Mr. Lockyer's attention only in the last month after Mr. Bryant spoke to a police officer who, it seems, then spoke to Crown counsel. At some point, the October 1999 letter was given to the police, the Crown and ultimately to Mr. Lockyer. This application ensued.

[11] In considering an application such as this, a court has two particular concerns: (1) the public interest in the administration of justice including confidence in the legal profession; and (2) an individual's right to select counsel of his own choice. An order removing counsel of record should not be made unless there are compelling reasons: Re Regina and Speid (1983), 1983 1704 (ON CA), 8 C.C.C. (3d) 18 (Ont. C.A.) at 20-21 and MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235 at 1243. Fortunately, in this case I am satisfied that it is possible to reconcile these concerns. Mr. Baltovich has agreed that Mr. Greenspan will present the ground of appeal concerning the charge to the jury and the Bernardo fresh evidence. After Mr. Lockyer and Ms. McLean turn over that part of the file to Mr. Greenspan, there will be no communication between them concerning those matters. Mr. Greenspan is not affiliated in any way with Mr. Lockyer and Ms. McLean. They do not share office space. Mr. Greenspan has never represented Mr. Bernardo. It may be that Mr. Greenspan will deal with some of the other grounds of appeal for Mr. Baltovich but that is not a matter of any concern. Crown counsel agrees that this is an appropriate solution.

[12] The mischief that the conflict of interest and duty of loyalty rules seek to prevent is the spectre of counsel for a client acting against the interests of another client, whether present or former. For members of the public to have confidence in the legal profession and the administration of justice generally, they must know that their confidences will be respected and not used against them in the future for the benefit of another client. That policy is reflected in the Conflict of Interest part of the Canadian Bar Association Code of Professional Conduct referred to in MacDonald Estate at p. 1245:

The lawyer must not advise or represent both sides of a dispute and, save after adequate disclosure to and with the consent of the client or prospective client concerned, he should not act or continue to act in a matter when there is or there is likely to be a conflicting interest. A conflicting interest is one which would be likely to affect adversely the judgment of the lawyer on behalf of or his loyalty to a client or prospective client or which the lawyer might be prompted to prefer to the interests of a client or prospective client.

A lawyer who has acted for a client in a matter should not thereafter act against him (or against persons who are involved in or associated with him in that matter) in the same or any related matter, or place himself in a position where he might be tempted or appear to be tempted to breach the Rule relating to Confidential Information. It is not, however, improper for the lawyer to act against a former client in a fresh and independent matter wholly unrelated to any work he has previously done for that person.

[13] The lawyer owes a broader duty of loyalty to a current client as reflected in R. v. Neil (2002), 2002 SCC 70, 168 C.C.C. (3d) 321 (S.C.C.) at para. 17:

While the Court is most often preoccupied with uses and abuses of confidential information in cases where it is sought to disqualify a lawyer from further acting in a matter, as in MacDonald Estate, supra, the duty of loyalty to current clients includes a much broader principle of avoidance of conflicts of interest, in which confidential information may or may not play a role…

[14] That broader duty is not an issue in this case, since Mr. Bernardo is not a current client of Mr. Lockyer. The courts are nevertheless always concerned to ensure that the interests of former clients are safeguarded and in R. v. Speid at p. 22, this court suggested that the former client has the right to expect that the solicitor "will not subsequently take an adversarial position against the client with respect to the same subject-matter that he was retained on".

[15] Because of the solution that was arrived at in this case, I need not further explore the scope of the duty of loyalty to a former client. Since Mr. Lockyer and Ms. McLean will now have nothing to do with the Scarborough rapist ground of appeal and the Bernardo fresh evidence, Mr. Lockyer will not be acting against his former client. There is no longer any risk of misuse of confidential information nor is Mr. Lockyer taking an adversarial position against a former client.

[16] I need to make two further observations. First, Mr. Lockyer denies that he ever received any relevant confidential information from Mr. Bernardo. From the affidavit material filed it is apparent that the consultation with Mr. Bernardo concerned the manner in which the videotapes were disclosed to the prosecution, a matter that has already been aired in the R. v. Murray prosecution. (Reasons for acquittal of Mr. Murray are reported at (2000), 2000 22378 (ON SC), 144 C.C.C. (3d) 289 (Ont. Sup. Ct.)). Mr. Lockyer asserts that this information is not relevant to the allegations now made against Mr. Bernardo by Mr. Baltovich. Even though I accept Mr. Lockyer's statements, that would not necessarily have been the end of the matter. However, because of the solution that the parties arrived at, I do not have to resolve the difficult question of whether Mr. Lockyer has met the heavy onus upon him as set down by the Supreme Court of Canada in MacDonald Estate at pp. 1260-61. Further, as I hope I have made clear, I accept Mr. Lockyer's statement that he only learned of Mr. Bernardo's assertion that he was in a conflict of interest when the October 1999 letter was brought to his attention by Crown counsel earlier this year.

[17] Second, the current client's interests in counsel of choice weigh very heavily in this case. Mr. Baltovich was convicted over 11 years ago. He has been on bail pending appeal for over three years. Mr. Lockyer and Ms. McLean have spent thousands of hours preparing this complex appeal. Mr. Baltovich is entitled, if at all possible, to have this appeal dealt with as expeditiously as possible by counsel in whom he has confidence. The Crown too is anxious that the appeal be dealt with as soon as possible and, of course, it is very much in the public interest that the appeal be heard expeditiously. The solution that allows for Mr. Lockyer and Ms. McLean to retain carriage of the bulk of this appeal is very much in the public interest.

[18] Because the parties were able to resolve this matter in the course of the hearing of the Crown's application, no formal order is necessary. For completeness, I have endorsed the Crown's Application Record as "withdrawn". I have done so on the basis already set forth namely:

(1) That Mr. Lockyer and Ms. McLean will not participate in the Scarborough rapist ground of appeal or the Bernardo fresh evidence;

(2) That Mr. Greenspan will take over that part of the appeal and take no instructions or directions from Mr. Lockyer or Ms. McLean concerning those issues; and

(3) That Mr. Lockyer and Ms. McLean will not pass any confidential information from Mr. Bernardo to Mr. Greenspan and after briefing Mr. Greenspan on that part of the file will have no discussions of any kind concerning that ground of appeal or the Bernardo fresh evidence except for the technical discussions such as timing of the argument.

[19] I am grateful to all counsel for their assistance in this matter and for achieving a solution that is consistent with the public interest and the best interests of the administration of justice.

"Signed: Rosenberg J.A."