Her Majesty the Queen v. 1504413 Ontario Limited [Indexed as: R. v. 1504413 Ontario Ltd.]

90 O.R. (3d) 122

Court of Appeal for Ontario,

Moldaver, Feldman and Armstrong JJ.A.

April 8, 2008

Evidence -- Witnesses -- Practice of calling counsel for opposing side to testify against his client highly undesirable and only to be resorted to where proper administration of justice demands it.

The appellant was charged with building a deck without having a building permit. Counsel for the municipality served a summons on the appellant's counsel, J, requiring him to appear as a witness against the appellant. The appellant moved for an order in the nature of certiorari to quash the summons. The motion judge found that J's evidence would be relevant and probative on the issue of who caused the deck to be built. While there were other sources of information on that issue, the motion judge found that it was "necessary" to get this information from J because it would be unfair to the Crown to be "blindsided" at trial by unexpected evidence from other sources. The motion was dismissed. The appellant appealed.

Held, the appeal should be allowed.

The practice of calling counsel for the opposing party to testify against his or her client is the exception and should be avoided wherever possible. When it is done involuntarily on the part of counsel summonsed, it is highly undesirable. Counsel should be required to testify against his or her client only in the most exceptional circumstances where the proper administration of justice demands it. At a minimum, such circumstances would require a showing of high materiality and necessity. There were no extraordinary circumstances in this case that justified calling J to testify against the appellant.

APPEAL from an order of Sproat J., of the Superior Court of Justice, dated March 24, 2006, dismissing a motion to quash a summons.

Cases referred to R. v. Chenier, [2001] O.J. No. 1279, 49 W.C.B. (2d) 444 (S.C.J.); R. v. Colbourne, 2001 CanLII 4711 (ON CA), [2001] O.J. No. 3620, 149 O.A.C. 132, 157 C.C.C. (3d) 273, 19 M.V.R. (4th) 29, 51 W.C.B. (2d) 65 (C.A.); R. v. St-Laurent, 1984 CanLII 3014 (QC CA), [1984] J.Q. no 120, 11 C.C.C. (3d) 74 (C.A.) Statutes referred to Building Code Act, 1992, S.O. 1992, c. 23, s. 8(1) [as am.] Rules and regulations referred to Building Code, O. Reg 403/97 [rev.]

David E. Harris, for appellant. Mara B. Greene, for respondent, Municipality of Meaford. John McInnes, for intervenor, the Attorney General of Ontario.

The judgment of the court was delivered by [page123]

ARMSTRONG J.A.: -- Introduction

[1] This is one of those regrettable cases where counsel was summonsed by the opposite party to testify against the interest of counsel's own client.

[2] The appellant was charged with building a deck in the Municipality of Meaford (the "Town") without having a building permit contrary to Building Code, O. Reg. 403/97 and s. 8(1) of the Building Code Act, 1992, S.O. 1992, c. 23.

[3] Counsel for the Town served a summons on counsel for the appellant requiring him to appear as a witness against his own client. The appellant retained new counsel, who moved before Justice J.R. Sproat of the Superior Court of Justice for an order in the nature of certiorari to quash the summons. The motion was dismissed.

[4] On appeal to this court, we allowed the appeal, set aside the order of the Superior Court judge and issued an order quashing the summons with reasons to follow. These are the reasons. Facts

[5] 1504413 Ontario Limited (the "numbered company") retained Robert L. Jenkins to represent it in a dispute with the Town concerning a deck that was constructed without a building permit. The Town retained John D. Middlebro' to act on its behalf. Unfortunately, the two lawyers did not get along particularly well as revealed in some of the correspondence.

[6] Mr. Middlebro' took offence at certain submissions made to the court by Mr. Jenkins and demanded an apology in a letter to Mr. Jenkins dated February 10, 2005. Mr. Middlebro' went on to suggest in the letter that Mr. Jenkins was in a conflict of interest concerning comments he had made to employees of the Town. He then recommended that Mr. Jenkins bring a motion to remove himself from the record. No such motion was brought by Mr. Jenkins.

[7] In a further letter from Mr. Middlebro' to Mr. Jenkins dated May 12, 2005, Mr. Middlebro' said:

As suggested in my letter to you of 10 February 2005, please be advised that you are likely to be summonsed to appear as a witness for the prosecution in these proceedings, and I anticipate the substance of your evidence to be as follows:

-- you were retained as solicitor for the defendant corporation during or about July of 2004; [page124]

-- you performed various investigations on behalf of your client including corresponding with the municipality and commencing a Freedom of Information Act proceeding;

-- you advised the investigator/recipient of your letters of 12 July 2004 and 29 July 2004 of your knowledge that your clients did not have a building permit to construct the deck on the marine road allowance, in writing; and

-- that the corporation was subsequently charged with commencing construction without a building permit.

[8] Several weeks later on July 22, Mr. Middlebro' forwarded a summons to Mr. Jenkins requiring him to attend at the Ontario Court of Justice in Owen Sound on September 1, 2005. In the covering letter, Mr. Middlebro' said: "I urge you to carefully [consider] your dual role as counsel and witness in th[is] provincial offence matter."

[9] The certiorari motion followed and was heard in Superior Court in Owen Sound on March 24, 2006. The Reasons of the Motion Judge

[10] The motion judge reviewed two letters that Mr. Jenkins had written to the Chief Building Official of the Town and a third letter that he had written to the Information and Privacy Commissioner relating to the dispute between the numbered company and the Town. After a review of this correspondence, the motion judge concluded:

I am therefore satisfied that the evidence of Mr. Jenkins, who confirmed that he sent this correspondence on behalf of the numbered company, is evidence that would be relevant and probative on the issue of who caused the deck to be built.

[11] The motion judge agreed that there were considerations, other than the relevance of the evidence, when the subject of a summons is opposing counsel. The motion judge, on the authority of R. v. Chenier, [2001] O.J. No. 1279, 49 W.C.B. (2d) 444 (S.C.J.), accepted that the prosecution must demonstrate "that it is necessary to elicit the evidence from counsel as opposed to some other person". Counsel for the numbered company submitted to the motion judge that there were other known sources of the evidence which the prosecution sought to obtain. In particular, he filed two newspaper articles concerning the removal of the deck in question in which the principal (Mrs. Grist) of the numbered company is quoted as making certain relevant admissions. Counsel submitted that the prosecution could summons the newspaper reporters to obtain the desired evidence.

[12] The motion judge agreed that "if independent journalists confirm the accuracy of the stories, unless they are wrong in [page125] numerous references, there appear to be admissions by the principal of the numbered company with respect to the ownership of the deck." However, the motion judge went on to say:

So Mr. Crewe [then counsel for the numbered company] was correct to this extent, if evidence given by Mrs. Grist was as expected, based upon what I have recited, then there is not any reason to require Mr. Jenkins. But if however, Mrs. Grist proves for some reason difficult to summons at this point and if in fact she is summonsed and comes to court and her evidence, contrary to Mr. Jenkins' letters, contrary to the news articles, is that the numbered company has no knowledge of the deck, then Mr. Middlebro' wants to be able to confront Mrs. Grist with the letters from Mr. Jenkins and if need be call Mr. Jenkins to give evidence indicating that these letters were sent on behalf of the numbered company.

I think it is necessary within the meaning of the authorities to get this information from Mr. Jenkins, because it would be unfair to the crown to be blind-sided at trial by unexpected evidence from the numbered company through Mrs. Grist or other persons. I can also appreciate the reluctance of the crown to be put in the position of having to call Mrs. Grist as its witness. Analysis

[13] There is abundant authority for the proposition that the practice of calling counsel for the opposing side to testify against his or her client is the exception and should be avoided whenever possible. When it is done, as in this case, involuntarily on the part of the counsel summonsed, it is highly undesirable and the court should be extremely wary of permitting it to happen. The Quebec Court of Appeal in R. v. St-Laurent, 1984 CanLII 3014 (QC CA), [1984] J.Q. no 120, 11 C.C.C. (3d) 74 (C.A.), at pp. 75-76 C.C.C. made the following observation in respect of the issuance of a subpoena to defence counsel:

The authorities are unanimous to the effect that counsel for any party should avoid becoming involved as a witness; the practice is described as "highly undesirable", and if it is not involuntary, it is unvariably the object of rebuke. It is evident that a conflict of interest and of duty is likely. It follows that counsel should avoid, if possible, calling his adversary; Crown counsel in this case does not appear to understand that. . . . . .

All this must not be taken as denying the possibility that extraordinary circumstances might conceivably arise in which the Crown, without prior warning, would have no alternative. This is no such case; the procedure, ironically, had no effect in any event on the Crown's case, and was totally unnecessary. (Citations omitted; emphasis added)

[14] In this court, in R. v. Colbourne, 2001 CanLII 4711 (ON CA), [2001] O.J. No. 3620, 149 O.A.C. 132 (C.A.), at para. 51, Doherty J.A. held that it is only where the proper administration of justice demands it, that counsel should be required to testify against his or her client: [page126]

It is well established that while a prosecuting counsel (or defence counsel) is a compellable witness, he or she should only be compelled to abandon the role of counsel and assume the role of witness in cases where the proper administration of justice demands that counsel become a witness: R. v. Kyling, [1996] Q.J. No. 1566 (Que. Sup. Ct.) [Côté J.].

[15] In my view, the motion judge erred in concluding that the evidence of Mr. Jenkins was necessary to the Town's case. The motion judge's suggestion that "it would be unfair to the crown to be blind-sided at trial by unexpected evidence from the numbered company through Mrs. Grist or other persons" is speculation and would not be sufficient to displace the heavy onus on the prosecution to demonstrate that it was necessary to call defence counsel. There is nothing in the facts of this case to suggest, in the words of Doherty J.A., that "the proper administration of justice demands that counsel become a witness". There are no extraordinary circumstances that dictate that counsel for the Town had no alternative other than the unfortunate course he adopted.

[16] Whether as a matter of custom or policy, issuing a summons to counsel for the opposite party to testify against his or her client is virtually unheard of and it should not be done absent the most exceptional circumstances.

[17] At a minimum, such circumstances would require a showing of high materiality and necessity (assuming that the proposed evidence is otherwise admissible). [See Note 1 below] Although not exhaustive, necessity in this context will involve considerations such as the importance of the issue for which the testimony is sought, the degree of controversy surrounding the issue, the availability of other witnesses to give the evidence or other means by which it may be accomplished (such as the filing of an agreed statement of fact), the potential disruption of the trial process and the overall integrity of the administration of justice.

[18] There were other issues raised before the motion judge and on this appeal. However, on the view that I take of this case, I find it unnecessary to deal with them. The only issue of consequence is whether the evidence sought from counsel for the numbered company was necessary for the proper administration of justice and in my view, it clearly was not.

Appeal allowed.

Notes

Note 1: Manifestly, solicitor/client privilege will figure significantly on the issue of admissibility.