DATE: 20040323

DOCKET: C39853

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – MATTHEW BENJAMIN BARSOUM (Appellant)

BEFORE: LASKIN, ROSENBERG JJ.A. and AITKEN J. (ad hoc)

COUNSEL: Alexander H. Fiszauf for the appellant

Lucy Anne Cecchetto for the respondent

HEARD: March 17, 2004

RELEASED ORALLY: March 17, 2004

On appeal from the conviction entered by Justice James C. Kent of the Superior Court of Justice, sitting with a jury, dated September 21, 2001 and the sentence imposed by Justice Kent dated November 20, 2001.

E N D O R S E M E N T

[1] The appellant appeals his convictions for fraud and theft on the sole ground that the Crown prosecutor, Mr. George Orsini, was in a conflict of interest because he had previously acted for the appellant on an assault charge. This ground is raised for the first time on appeal. The appellant has filed fresh evidence, which includes affidavits of Mr. Barsoum, Mr. Orsini, Mr. Barsoum’s trial counsel and that counsel’s legal assistant. We have reviewed that fresh evidence and admit it in order to address the appeal.

[1] When an allegation of conflict of interest is raised for the first time on appeal the party making the allegation bears a more stringent burden. Because the appellate court has the benefit of the trial record, the party making the allegation, here the appellant, must show an actual conflict of interest that prejudiced him during the trial proceedings.

[2] We are not satisfied that the appellant has made out a conflict of interest. The assault charge and the fraud prosecution were entirely independent matters. A lawyer is not precluded from acting against a former client unless during the previous retainer the lawyer obtained confidential information relevant to the subsequent retainer. Having considered the fresh evidence material as a whole we are not persuaded that Mr. Orsini received any relevant confidential information during the time he acted for the appellant on the assault charge, a period of about three weeks.

[3] The case against the appellant on the fraud charges was based on a police investigation in which Mr. Orsini played no part. The appellant could not point to any instance during the fraud trial when Mr. Orsini used any information gained during the time he acted on the assault charge. We might have had more concern had the appellant given evidence and been subject to cross‑examination by Mr. Orsini, but the appellant chose not to testify.

[4] For these brief reasons the conviction appeal is dismissed.

[5] The appellant also appeals his sentence. He asks to convert his custodial sentence into a conditional one. We think that the sentence imposed by the trial judge was fit. Although recognizing the mitigating factors in the appellant’s favour, we agree with the trial judge that a jail term was warranted. The appellant committed a series of serious frauds on a charitable institution.

[6] Accordingly, although leave to appeal sentence is granted the sentence appeal is dismissed.

“John Laskin J.A.”

“M. Rosenberg J.A.”

“C.D. Aitken J.”