DATE: 20050203
DOCKET: C41840
COURT OF APPEAL FOR ONTARIO
LASKIN, ROSENBERG and LaFORME JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Alan D. Gold and
Adam Weisberg
for the appellant
Respondent
- and -
D.D. Graham Reynolds Q.C.
CHRISTIAN PIERSANTI
Appellant
and Althea Francis
for the respondent, the
Attorney General of Canada
Heard: February 1, 2005
On appeal from the decision of Justice Alfred J. Stong of the Superior Court of Justice dated May 5, 2004.
BY THE COURT:
[1] The appellant appeals from the decision of Stong J. dismissing his application to quash the order that he stand trial on various offences contrary to the Excise Tax Act, R.S.C. 1985, c. E-15. The sole ground of appeal concerns a conflict of interest between the appellant and his co-accused, his wife. At the preliminary inquiry, the same counsel represented the appellant and his wife. On the first day of the preliminary inquiry and on the final (eleventh) day, the presiding judge expressed some uneasiness about the lawyer representing both accused. The evidence suggested that Mrs. Piersanti had more of a hands-on role in the company than did the appellant. It is suggested that because of the lawyer’s conflict of interest his ability to properly represent the appellant was compromised.
[2] The appellant is a lawyer. At no time during the proceedings before the presiding judge did he express any concern about the joint representation. Following the order to stand trial, the Crown brought an application to have counsel removed because of the conflict of interest. The application did not proceed when the appellant retained separate counsel (Mr. Gold).
[3] To succeed on this appeal the appellant must demonstrate that the court “acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice”: R. v. Russell (2001), 2001 SCC 53, 157 C.C.C. (3d) 1 (S.C.C.) at 10. The appellant submits that by reason of the joint representation there was a breach of the principles of natural justice.
[4] Especially since the appellant did not raise the issue at the preliminary inquiry, to make out a jurisdictional error the appellant must show that there was, in fact, a conflict of interest and that by reason of that conflict counsel’s representation was compromised in such a way as to deprive him of a fair hearing. We are not satisfied that either part of this test was met.
[5] Whether or not there was an actual conflict must be considered in the context of the particular proceedings. The evidence that Mrs. Piersanti was an agent for the corporations and involved in the failure to make the required remittances was substantial. Those were not serious issues in her case at the preliminary inquiry. It is not obvious that the same counsel could not represent her and the appellant given the limited jurisdiction of the preliminary hearing judge. Thus, the appellant has not shown that there was an actual conflict of interest at that stage of the proceedings. As this court pointed out in R. v. W.W. and I.W. (1995), 1995 3505 (ON CA), 100 C.C.C. (3d) 225 at 240, in the context of an appeal from conviction, the question is not whether the appellant could have been more effectively represented by separate counsel, but “whether the joint representation placed counsel in a conflict of interests such that the assistance provided to either or both clients was adversely affected”. That test has not been met.
[6] The matter might be different at trial when guilt and innocence are at stake and it is not therefore surprising that the Crown out of an abundance of caution brought the motion that it did, especially having regard to the comments made by the preliminary hearing judge. The fact that the Crown brought that application did not establish that there was a disqualifying conflict of interest at the preliminary inquiry.
[7] We are also not satisfied that the record supports the view that counsel’s representation was compromised in such a way as to deprive the appellant of a fair hearing. For the appellant to succeed, he must demonstrate a jurisdictional error. A jurisdictional error is not shown merely by speculation that the case might have been conducted differently. We have not been shown any areas where the course of the evidence would have been different had the appellant been separately represented so as to deprive the appellant of a fair hearing.
[8] At the conclusion of the preliminary hearing, counsel made submissions directed at the appellant’s different role in the companies as compared to his wife. In fact, it appears to us that the judge’s interventions were directed at his concern that Mrs. Piersanti may have been prejudiced because counsel was able to demonstrate that there was abundant evidence to implicate her in the offences but little evidence directly implicating the appellant. The appellant has not shown that his interests were sacrificed because of the joint representation to the extent that he was deprived of a fair hearing.
[9] Accordingly, the appeal is dismissed.
Signed: “John I. Laskin J.A.”
“Marc Rosenberg J.A.”
“H.S. LaForme J.A.”