Court of Appeal for Ontario
Date: May 5, 2017
Docket: C59028
Judges: Gillese, van Rensburg and Brown JJ.A.
Between
Her Majesty the Queen Respondent
and
Soheil Baharloo Appellant
Counsel
For the Appellant: Jill R. Presser and Andrew Menchynski
For the Respondent: Kathleen M. Healey
Heard: April 6, 2017
On appeal from the conviction entered on December 11, 2013 by Justice Peter B. Hockin of the Superior Court of Justice, sitting with a jury.
Brown J.A.:
I. Overview
[1] The appellant, Soheil Baharloo, raises a single issue on his appeal from conviction for the possession of 11.2 grams of crack cocaine for the purpose of trafficking – ineffective assistance by his trial counsel, Pamela Munn.
[2] The appellant was a passenger in the rear seat of a Pontiac Grand Am when it was stopped by the police. Two baggies containing crack cocaine were found on the car floor at the appellant's feet.
[3] The appellant contends Munn provided ineffective assistance that compromised the fairness of his trial in four ways: (i) she was in a conflict of interest by representing both the appellant and a potential third party suspect, Tumbwembwe Banda, who owned the Grand Am in which the police found the cocaine; (ii) she failed to advance a third party suspect defence that pointed to Banda or to the driver and other passenger in the car, Krystal McKee and Evans Amponsah; (iii) she breached her duty of candour by failing to provide the appellant with material evidence, thereby impairing his ability to make key decisions for his defence; and (iv) she failed to afford the appellant the opportunity to elect his mode of trial. The appellant submits trial counsel's ineffective assistance caused a miscarriage of justice. He asks that his conviction be set aside and a new trial ordered.
[4] Both parties consent to the filing of fresh evidence on the issue of ineffective assistance. The appellant has provided his own affidavit, together with a short affidavit from a lawyer he briefly consulted prior to his trial. The respondent has filed an affidavit from trial counsel. Given the parties' consent to the filing of fresh evidence, and since the appellant seeks to set aside his conviction as a miscarriage of justice on the basis of ineffective assistance of counsel, it is in the interests of justice to consider the fresh evidence: R. v. W. (W.), 25 O.R. (3d) 161 (C.A.), at pp. 169-70.
[5] For the reasons that follow, I would allow the appeal. I conclude that a miscarriage of justice occurred as a result of the ineffective assistance Munn provided to the appellant due to her conflict of interest.
II. The Evidence
The events giving rise to the charges
[6] On the evening of October 16, 2011, the appellant was a passenger in the rear seat of a Grand Am driven by McKee. Her friend, Amponsah, occupied the passenger seat. The car was owned by McKee's roommate, Banda.
[7] The police stopped the car. One of the officers observed the appellant sitting in the rear seat. He saw three baggies on the car floor between the appellant's feet. Two of the baggies appeared to contain crack cocaine. The officer ordered the appellant out of the car and arrested him for offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended. The search of the appellant incident to his arrest revealed $300 in cash, a notebook with "debt lists", rolling papers, a digital scale, and a second cell phone. The police determined two of the baggies contained crack cocaine.
[8] The appellant was charged with the possession of cocaine for the purpose of trafficking. The police also charged McKee and Amponsah with the same offence. However, the Crown withdrew those charges following the preliminary inquiry after McKee and Amponsah provided statutory declarations stating the drugs did not belong to them.
The appellant's preliminary inquiry and trial
[9] The appellant's preliminary inquiry was held in May 2012. His trial was held on December 9, 10 and 11, 2013, before a judge and jury. The Crown called the two arresting officers and one other officer. The appellant testified in his own defence. Neither of the other occupants of the car, McKee or Amponsah, was called as a witness.
[10] The appellant testified that he lived in Toronto and had travelled to London for a weekend of partying with friends. He met McKee and Amponsah for the first time while partying on the Friday night.
[11] On the Sunday morning, McKee and Amponsah arrived at the appellant's hotel to drink with him. The appellant explained he was planning to take a taxi to Port Stanley to visit friends. According to the appellant, McKee and Amponsah offered to drive him to Port Stanley provided he paid for the gas. McKee told the appellant the car belonged to her roommate. The appellant accepted their offer.
[12] The appellant testified that he sat in the back seat of the Grand Am. Given his height, it was a tight squeeze, so he sat in the middle rear seat. He recalled there was garbage on the car floor, but he did not look around to see exactly what was on the floor.
[13] The appellant stated he had no knowledge about the crack cocaine found in the baggies at his feet. As to the items found during the search incident to arrest, he explained: the cell phone and debt list notebook found in his satchel actually belonged to a friend; he had withdrawn the cash from an ATM to cover his weekend expenses; and he used the digital scale for his personal consumption of marijuana.
[14] Defence counsel gave a very short closing submission.
[15] The jury convicted the appellant of possession of cocaine for the purpose of trafficking. The trial judge imposed an 18-month conditional sentence.
The information disclosed by the fresh evidence
[16] While the appellant was in custody following his arrest, he retained Munn, whose name he had obtained from the lawyer for one of his co-accused. Munn secured bail for the appellant on October 24, 2011.
[17] Unbeknownst to the appellant, at the time Munn was acting for Banda, the Grand Am's owner, on two breach of recognizance charges previously laid in April and May 2011. She continued to act as Banda's counsel until those charges were resolved in April 2012.
[18] The Crown disclosure provided to Munn in November 2011 revealed that Banda was the registered owner of the Grand Am. It is not disputed that Munn did not inform the appellant prior to his trial that Banda owned the Grand Am.
[19] In March 2012, Banda was charged with further offences: theft; possession of stolen property; assault to resist arrest; public mischief; and escape lawful custody. Banda again retained Munn to represent her.
[20] As mentioned, the appellant's preliminary inquiry was held in May 2012.
[21] In August 2012, Banda was charged with possession of cocaine. Once again, she retained Munn as her counsel. Banda terminated the retainer in January 2013. The charge against Banda ultimately was dismissed in November 2013, several weeks before the appellant's trial.
[22] In January 2013, Banda was charged with intent to mislead a peace officer and breach of recognizance. One condition she was alleged to have breached was to abstain from communicating with McKee, the driver of the Grand Am at the time of the appellant's arrest. Banda retained Munn as her counsel, but terminated the retainer later that month.
[23] Munn did not tell the appellant about any of her retainers by Banda.
[24] The appellant stated Munn did not spend any time preparing him to testify for trial, simply telling him not to argue with the Crown on the witness stand. He complained Munn's closing submissions were "very perfunctory, bare bones".
[25] The appellant stated that, after his conviction, he made inquiries about Munn. He learned she had acted for Banda. The appellant deposed: "I was stunned. I had put so much faith and trust in Ms. Munn and she betrayed me. I felt absolutely devastated."
[26] The appellant retained a new lawyer for his sentencing hearing, and Munn obtained an order removing her from the record. The appellant was sentenced on June 6, 2014.
[27] The appellant deposed he had not been aware of Munn's representation of Banda both before and during her representation of him. He stated that had Munn disclosed those retainers, he would not have hired her or would have discharged her immediately. In his affidavit, the appellant summarized his concerns in the following way:
In hindsight, perhaps much of what Ms. Munn did as my lawyer was not about representing or assisting me, but about protecting Ms. Banda. The car that contained drugs belonged to Ms. Banda and was being driven by her friend and roommate, Ms. McKee. Since the drugs were not mine and I was not aware of them, one real possibility is that they belonged to Ms. Banda. This is not something that Ms. Munn ever explored.
III. The Governing Legal Principles
Effective assistance by counsel
[28] An accused who is represented by counsel at trial is entitled to receive counsel's effective assistance. The appellant's main submission is that his trial counsel failed to do so in two distinct, but inter-related, ways: (i) Munn was in a conflict of interest by representing both the appellant and a potential third party suspect, Banda; and, (ii) Munn acted in an incompetent manner by failing to advance a third party suspect defence that pointed to Banda, McKee, or Amponsah as the owner of the drugs found by the police.
[29] Effective assistance by counsel requires that counsel be competent. However, effective assistance involves more; it also requires counsel to give the accused's cause her undivided loyalty, which is a prerequisite to proper legal representation: W. (W.), at pp. 171-72.
[30] To establish a lack of effective assistance based on counsel's conflict of interest, the appellant must demonstrate (i) an actual conflict of interest between the respective interests represented by his counsel and (ii) as a result of that conflict, some impairment of counsel's ability to effectively represent the appellant's interests. The appellant need not demonstrate that, but for the ineffective representation of counsel, the verdict would have been different: W. (W.), at p. 173.
Determining whether counsel is in a conflict of interest position
[31] A lawyer's duty of loyalty to a client includes a duty to avoid conflicting interests. One type of prejudice from which the law of conflict of interest seeks to protect a client is the "prejudice arising where the lawyer 'soft peddles' his representation of a client in order to serve his own interests, those of another client, or those of a third person": Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] S.C.R. 649 ("CNR"), at para. 23.
[32] As regards a current client, a lawyer must not place herself in a situation that jeopardizes her effective on-going representation of the client: CNR, at para. 23. That is because "[t]here should be no room for doubt about counsel's loyalty and dedication to the client's case": R. v. McCallen, 43 O.R. (3d) 56 (C.A.), at p. 67. As well, "[w]hen a client employs an attorney, he has a right to presume, if the latter be silent on the point, that he has no engagements, which interfere, in any degree, with his exclusive devotion to the cause confided to him": Williams v. Reed, 29 F. Cas. 1386 (Cir. Ct., D. Maine 1824), quoted with approval in Strother v. 3464920 Canada Inc., 2007 SCC 24, [2007] S.C.R. 177, at para. 55.
[33] Although the relentless financial pressure of the business of law may tempt some lawyers to accept or hang onto mandates that impinge on their duty of loyalty to an existing client, the law is clear: "Loyalty includes putting the client's business ahead of the lawyer's business": R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 24.
[34] The case law sets out a two-step analysis to determine whether a lawyer's acceptance of a retainer would conflict with her duty of loyalty to a current client. The first step involves ascertaining whether the "bright line" rule articulated by the Supreme Court in Neil, at para. 29, applies. That rule states:
[A] lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client — even if the two mandates are unrelated — unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other. [Emphasis in original.]
[35] The "bright line" rule applies only where the immediate, legal interests of clients are directly adverse in the matters on which the lawyer is acting: CNR, at paras. 33 and 35.
[36] Where the "bright line" rule does not apply, the second step of the analysis considers the more contextual substantial risk principle formulated in CNR, at para. 38:
When a situation falls outside the scope of the bright line rule for any of the reasons discussed above, the question becomes whether the concurrent representation of clients creates a substantial risk that the lawyer's representation of the client would be materially and adversely affected. The determination of whether there exists a conflict becomes more contextual, and looks to whether the situation is "liable to create conflicting pressures on judgment" as a result of "the presence of factors which may reasonably be perceived as affecting judgment".
IV. Positions of the Parties
[37] The appellant submits his counsel, Munn, was in an actual conflict of interest because his interests were immediately and directly adverse to Banda's, even though Munn represented them on unrelated matters. He argues Munn could not put forward Banda as a third party suspect in his case without eliciting bad character evidence that discredited Banda and her friends, thereby betraying Banda's immediate legal interests. As a result, Munn put herself in a position of divided loyalties, without disclosing the conflict to the appellant.
[38] The Crown takes a different view, arguing no actual conflict of interest arose from Munn's concurrent representation of the appellant and Banda. That was because no credible evidence existed upon which the appellant could advance a third party suspect defence implicating Banda, given the requirements for such a defence identified by this court in R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at paras. 70-78:
Where a third party suspect defence is advanced at trial, the question for the trier of fact is whether, on the evidence as a whole, the possible involvement of the third party raises a reasonable doubt about the guilt of a person charged;
The evidence marshalled in support of a third party suspect defence must be relevant, material and admissible. To satisfy the relevance requirement, there must be a sufficient connection between the third party and the crime, otherwise the third party evidence is neither relevant nor material;
The term "opportunity" or "evidence of opportunity" describes the nature of the connection between the third party and the conduct charged essential to providing an air of reality to the third party suspect defence; and,
Relevant disposition or propensity evidence about the third party may include the person's prior convictions that demonstrate a relevant disposition or propensity. However, since the fact that a witness is charged with an offence generally has no bearing on the witness' credibility, it would be illogical to conclude that the fact of a charge can be of service in establishing a third party's disposition when that disposition is offered as circumstantial evidence of conduct.
[39] The Crown submits Banda's ownership of the Grand Am did not provide a sufficient connection between her and the offence. As well, by the time of the appellant's trial, the possession of cocaine charge against Banda had been withdrawn. As a result, defence counsel could not have used Banda's charge on possession of cocaine as circumstantial evidence of third party suspect conduct.
V. Analysis
[40] On the facts of this case, both the determination of whether an actual conflict of interest existed and whether the conflict resulted in some impairment to effective representation are informed by the availability of a third party suspect defence implicating Banda.
[41] When the appellant asked Munn to represent him on the drug charges in October 2011, Munn was acting for Banda on two breach of recognizance charges. It is unclear whether at the time Munn knew Banda was the owner of the Grand Am in which the appellant had been a passenger and the crack cocaine was found. However, the Crown disclosure provided to Munn in November 2011 - well before the appellant's preliminary inquiry - clearly revealed Banda owned the Grand Am.
[42] Then, in August 2012, Munn accepted a retainer from Banda to represent her on a charge of possession of cocaine.
[43] By that point in time, at the latest, the interests of the appellant and Banda were clearly opposed. Munn knew the appellant was denying any knowledge of the crack cocaine found in the baggies on the rear floor of Banda's car. Yet, effective representation of the appellant required Munn to consider and investigate the availability of a defence pointing the finger at a third party suspect – whether the driver, McKee; the other passenger, Amponsah; or the car's owner, Banda. Investigating or advancing a third party suspect defence against Banda would pit the appellant's legal interests directly against those of Banda: CNR, at paras. 33-34.
[44] The Crown argues that is not a proper way to examine whether ineffective assistance of counsel based on a conflict of interest is made out. The Crown contends that in order to determine whether counsel's representation was in fact compromised in such a way as to result in a miscarriage of justice, an appellate court must look backwards to the trial. The Crown points to the following language in W. (W.), at pp. 175-76:
The concern on appeal must be with what happened and not with what might have happened. It makes no more sense to find ineffective representation based on the possibility of a conflict of interest, than it does to find ineffective representation based on the mere possibility of incompetent representation.
[45] Drawing on this language, the Crown submits that when one examines the state of the evidence at the time of the appellant's trial, the Crown's case against him was overwhelming. As well, a third party suspect defence lacked any air of reality because the cocaine charge against Banda had been withdrawn, thereby precluding the defence from eliciting any bad character evidence on that matter. It follows, according to the Crown, that no miscarriage of justice occurred.
[46] I am not persuaded by the Crown's submission. Certainly an assessment of a claim of ineffective assistance based on counsel's conflict of interest requires an appellate court to look back at the events of the past. But, the appellate court's gaze does not stop at the trial. Where a conflict of interest is alleged, a court's review must extend back to the point of time at which the appellant contends counsel found herself in a conflict of interest.
[47] In the present case, that point of time was August 2012, over a year before the appellant's trial. By then, Munn knew that: Banda owned the Grand Am in which the police found the drugs that formed the basis of the charges against the appellant; Banda's roommate, McKee, was driving the car when the drugs were found; the close relationship between Banda and McKee could support an inference Banda would entrust the drugs into the care of her roommate; the criminal records of both Banda and McKee included convictions for crimes of dishonesty; and Banda had just been charged with possession of cocaine. Taken together, such information disclosed that a third party suspect defence pointing to Banda, designed to raise a reasonable doubt on behalf of the appellant, was an "available option", a "realistic option", or a "realistically available" defence, at least requiring consideration and investigation by defence counsel: W. (W.), at pp. 181-82 and 186.
[48] Munn ultimately acknowledged as much on her cross-examination. She conceded the existence of a relevant connection between the appellant and Banda in respect of the charges against him:
Q. 621. Okay, and so surely you can see that there was a relation – a connection between Ms. Banda and Mr. Baharloo here?
Munn: Yes, there is. Yes.
Q. 622. Okay, and that's not necessarily a happy connection for either of them, right?
A. I – I'm not certain how to characterize the connection. Certainly there is a connection.
Q. 623. Okay, she owned the car? He was found in the car?
A. Yes.
Q. 624. And the drugs were found in the car?
A. That's correct.
Q. 625. If one of them was guilty of possession of that cocaine for the purpose of trafficking, the other was likely innocent, right?
A. Well, Ms. Banda wasn't charged so, yes.
[49] In her affidavit, Munn deposed that her trial strategy for the appellant did not involve a third party suspect application because her "trial strategy was solely focused on protection of the presumption of innocence of [the appellant]." In her opinion, to raise the issue of another suspect "would allow the Crown to present reply evidence that could introduce bad character evidence of [the appellant]…" In cross-examination, Munn was pressed on that point:
Q. 740. Okay, I'm going to suggest to you that whatever character evidence the Crown might have introduced pales in comparison to all the incriminating material on Ms. Banda.
Munn: It's possible.
Q. 741. And all that incriminating material on Ms. Banda went to the core of Mr. Baharloo's defence?
A. I don't agree with that.
Q. 742. You don't agree that the fact that Ms. Banda had an outstanding charge for possession of cocaine wasn't relevant to whether she was in possession of that cocaine instead of Mr. Baharloo?
A. I suppose looking at it now, yes. That does seem at the time though that wasn't relevant to me.
[50] Accordingly, by August 2012 the immediate, legal interests of the appellant and Banda were directly adverse – Munn was in an actual conflict of interest. As well, the concurrent retainers created a substantial risk that Munn's representation of the appellant would be materially and adversely affected. They created conflicting pressures on Munn's judgment because of the divided loyalties created by her concurrent retainers. To use the vernacular: for Munn to investigate and advance a third party suspect defence on behalf of the appellant, she would have to throw another client, Banda, "under the bus". Those circumstances created a real risk that Munn would "soft peddle" her representation of the appellant to avoid prejudicing the interests of Banda - a continuing, repeat client.
[51] At a minimum, before accepting a retainer from Banda in August 2012 to represent her on the possession of cocaine charge, Munn was required to fully disclose to both the appellant and Banda the issues and risks associated with concurrent representation, secure their informed consent to concurrent representation, and reasonably conclude that she would be able to represent each client without adversely affecting the other: Neil, at para. 29. That Munn did not do.
[52] By accepting the retainer to act for Banda on the possession of cocaine charge, Munn put herself in an actual conflict of interest with respect to her representation of the appellant. Her representation of the appellant, from that point forward at the latest, was tainted by impermissible divided loyalties and an actual conflict of interest.
[53] As this court stated in W. (W.), at p. 178, the real issue on appeal in cases involving allegations of conflicts of interest arising out of the joint defence of co-accused "will be whether there was an actual conflict of interests. If that conflict is demonstrated, the conclusion that at least one of the co-accused did not receive effective representation will follow in most cases." That applies with equal force to the present case, even though the retainers involved different matters and the appellant and Banda were not co-accused.
[54] Accordingly, the appellant has demonstrated that (i) an actual conflict of interest existed by Munn's concurrent representation of Banda and him, and (ii) that conflict impaired Munn's ability to represent effectively the appellant's interests. It led Munn to fail to pursue a third party suspect defence which, in the circumstances, was a realistically available defence. The appellant has established a lack of effective assistance by trial counsel.
[55] As a result of the ineffective assistance Munn provided to the appellant because of her conflict of interest, a miscarriage of justice occurred: W. (W.), at p. 173. The appellant's conviction cannot stand.
[56] In light of that conclusion, there is no need to address the appellant's further arguments that Munn breached her duty of candour or failed to afford him the opportunity to elect his mode of trial.
VI. Disposition
[57] I would allow the appeal, set aside the appellant's conviction, and direct a new trial.
Released: May 5, 2017 ("EEG")
"David Brown J.A."
"I agree. E.E. Gillese J.A."
"I agree. K. van Rensburg J.A."