Publication Ban Warning

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15 ; 2015, c. 13, s. 19

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

Date: 2021-10-07 Docket: C55241 & C62290

Watt, Benotto and Harvison Young JJ.A.

Between:

Her Majesty the Queen, Respondent

and

Kevin Gregson, Appellant

Counsel:

Michael Lacy and Bryan Badali, for the appellant Alexander Alvaro, for the respondent

Heard: May 18, 2021 by video conference

On appeal from the conviction entered and the sentence imposed on March 13, 2012 by Justice Douglas J.A. Rutherford of the Superior Court of Justice.

Harvison Young J.A.:

[1] The appellant Kevin Gregson was convicted of the first degree murder of a police officer and robbery. The sole issue on appeal is whether this court should quash the convictions and order a new trial on the basis that his counsel at trial, Craig Fleming, breached the duty of loyalty owed to his client. In essence, the appellant argues that Mr. Fleming was acting as amicus curiae rather than as defence counsel acting in the interests of the appellant, that he undermined the appellant’s defence, and that his conduct effectively deprived the appellant of counsel at trial. The appellant points to a number of instances that illustrate this. The appellant argues that Mr. Fleming’s conduct prior to the trial went beyond mere ineffective assistance of counsel and, for that reason, the appellant does not have to show that Mr. Fleming’s conduct could have affected the verdict in the case.

[2] For the following reasons, I would dismiss the appeal. While a number of Mr. Fleming’s actions were misguided and inadvisable, Mr. Fleming cannot be said to have breached his duty of loyalty to his client according to the applicable law. At its highest, this may have been a case of ineffective assistance of counsel. However, an appeal based on ineffective assistance could not have succeeded because Mr. Fleming’s actions cannot be said to have had any effect on the verdict.

A. Background facts

(1) The Offence

[3] It is common ground that the appellant is guilty of at least manslaughter. It is also common ground that he was a difficult client. As will be discussed below, Mr. Fleming agreed to take on the case after the trial judge acceded to the appellant’s former lawyer’s request to be removed from the record a few weeks before the start of the trial.

[4] There is no doubt about what happened on the night of December 28, 2009 and the early morning hours of December 29, 2009. Mr. Gregson’s life had been coming apart. A few years earlier, he had been suspended with pay from his job as an RCMP officer as a result of a number of incidents. In November 2009, the final decision was that the appellant either resign or be discharged, and the appellant learned that his pay had stopped and that he had been overpaid for a few months and owed money to the RCMP, so financial concerns were added to his stressors. In early December, the discharge order came into effect. He had been preoccupied, even obsessed, with getting his job back. He had also been accused of sexual assault on December 28. This distressed him even more as he believed that this accusation would ruin his reputation and any chance he had of clearing himself with the RCMP.

[5] According to the appellant, in the evening of December 28, he decided to kill himself, so he cut his own throat, passed out, and then woke up. After that, he decided to steal a car, find a police officer, take their gun, and go home and shoot himself. He obtained a car by threatening a young couple with what appeared to be a gun. After driving around and not finding a police officer, he went home, had a snack, washed his clothes, and then decided to go to the Ottawa Civic Hospital where he knew there were often police cars and officers. He was wearing two bulletproof vests and carried handcuffs, a BB gun, and two knives. His evidence at trial was that he did not want to die when he confronted a police officer as he wanted to be able to die in his “sweet spot” on his couch at home.

[6] Constable Czapnik was in his squad car doing paperwork outside the Ottawa Civic Hospital at around 4:30 a.m. on December 29. Four paramedics saw a vehicle pull up and Mr. Gregson get out of the car and approach the police car with something in his hand. Constable Czapnik exited his vehicle and an altercation ensued. The paramedics rushed to help and saw the appellant straddling the officer with his right hand “going up and down”, making short, little punches. One of the paramedics pulled the appellant off the officer and the appellant’s arm came up holding a knife. Another paramedic managed to stomp or kick the knife out of Mr. Gregson’s hand. Despite immediate medical assistance, the officer succumbed to his injuries a short time later. He had suffered a number of wounds, including lacerations that cut his left-side jugular vein, vagus nerve, and carotid artery.

[7] According to the appellant’s evidence at trial, when he got to the hospital and saw a police car, he approached, pointed his BB gun, opened his door, and told Constable Czapnik to “get out.” The appellant then ordered him to get on his knees and to put his hands up. Constable Czapnik complied initially but then attempted to pull his gun from his holster, at which point the appellant threw down his gun, jumped on him, and tried to get his gun. The officer punched the appellant in the head, and the appellant “just reacted” and stated that “I stabbed him because he hit me in the head and I reacted.” The appellant said he remembered stabbing the officer only twice, although the officer received more than two stab injuries. He attributed his reaction to “training” and “instinct”, stating that he did not intend to kill the officer.

[8] The appellant was arrested at the scene. He was eager to talk and made several spontaneous statements, including “I’m the one who car jacked two people earlier today”, and “I came here looking for a fight. You city cops are tough.” He told one paramedic that he had tried to cut his own jugular veins earlier that day but they had clotted too quickly, and stated to another that “[i]t didn’t have to end this way, all he had to do was give me his gun.” When a nurse at the hospital asked if he knew why he was there, he said “[b]ecause I killed a cop.”

[9] The appellant spoke to counsel while at the hospital and again at the police station. While he was in the cells at the police station, he asked whether the incident had been in the news and what the maximum penalty was for manslaughter. In a videotaped police interview on December 29, 2009, he told officers that he had hydrocephalus and “colloid cysts” which made him more “aggressive”. While he admitted to killing the officer, he was not prepared to call it murder. In short, the only issue for trial was mens rea and whether there was any basis for an argument of diminished capacity.

[10] Three forensic psychiatric assessments were completed for the appellant in 2010-2011 after the incident. None found a basis for a defence of not criminally responsible due to mental disorder. The appellant’s defence counsel obtained one of these assessments from Dr. Bradford, dated September 10, 2011. Dr. Bradford concluded that the appellant was not psychotic prior to, during, or subsequent to the incident, and the conditions he suffered from would not affect his ability to appreciate the nature and quality of his actions or that they were wrong. Dr. Bradford did however also conclude that the appellant suffered from colloid cysts and that they caused persistent personality disturbance and could have had other psychiatric manifestations. After reviewing Dr. Bradford’s 2011 report, Dr. Sinclair, the appellant’s treating neurosurgeon, rejected Dr. Bradford’s diagnosis of colloid cysts based on the appellant’s brain imaging studies and stated that Dr. Bradford’s contention that the appellant’s personality abnormalities were related to colloid cysts was not plausible. An expert in diagnostic neuroradiology called by the Crown, Dr. Kingstone, also testified at trial that the appellant did not have colloid cysts.

[11] The appellant did have an episode of hydrocephalus in 2006, as a result of which a shunt was surgically inserted to drain the fluid from his brain. Dr. Sinclair testified at the trial, opining that the appellant had atypical type 3 perivascular spaces in his brain, also called Virchow-Robin spaces, but that the appellant’s medical condition would not have impaired his ability to think clearly or make decisions on December 29, 2009.

[12] The defence did not call Dr. Bradford at trial, having concluded that his opinions were not favourable to the appellant. It is clear that there was no expert evidence that could have supported an NCR defence, and that no diminished capacity defence could have succeeded. The reports also diagnosed narcissistic personality disorder with antisocial features. While this would not have supported a diminished capacity defence, it does tend to confirm what was already clear from the record: the appellant was a difficult person and client, and thought he knew best.

(2) Mr. Fleming’s conduct

[13] The appellant introduces fresh evidence on appeal with the consent of the respondent. This fresh evidence outlines the allegedly objectionable aspects of Mr. Fleming’s conduct, prior to the trial proper, that the appellant relies on to demonstrate a breach of the duty of loyalty. At the time that Mr. Fleming was retained by the appellant, he was a staff lawyer working for Legal Aid Ontario (“LAO”). After the appellant’s former lawyer had been removed from the record, it was difficult to find a lawyer willing to take the case at such short notice, and LAO proposed that one of their staff, Mr. Fleming, could represent the appellant and take the trial without much delay.

[14] Mr. Fleming’s unusual conduct in the course of this case forms the basis for the appellant’s breach of loyalty claim, and four particular instances will be discussed further below. Some points on the chronology of events leading up to the trial will place Mr. Fleming’s conduct in context and highlight the particular conduct that the appellant points to:

• October 17, 2011: The appellant’s former counsel sought to be removed and was removed from the record due to a violent outburst from the appellant. Prior to this, the appellant’s counsel and Crown had reached a substantial level of agreement on possible evidentiary issues to be addressed in the course of pre-trial motions.
• October 26, 2011: Before the court, the Crown brought up the status of agreements regarding the resolution of pre-trial motions. Mr. Gregson said no agreements were reached on pre-trial motions. Mr. Gregson also said he was willing to have an LAO practitioner assigned, saying “[l]et’s just have Mr. Fleming.”
• October 29, 2011: Mr. Fleming met with Mr. Gregson for the first time.
• November 1, 2011: Mr. Fleming was formally placed on the record as counsel for the appellant. The appellant now apparently consented to the admissibility of almost all controversial evidence. In the following weeks, Mr. Fleming drafted written instructions for Mr. Gregson to sign.
• December 16, 2011: Mr. Fleming sent the appellant’s draft instructions to the Crown for review.
• January 18, 2012: The appellant suddenly reversed his instructions and wanted to contest everything he previously consented to. He wanted to “wage war” with the Crown. Mr. Fleming wrote to the Crown about Mr. Gregson’s “significant volte-face” the next day, saying “I cannot allow any failure to respect his instructions to open an appeal door.”
• January 20, 2012: Mr. Fleming wrote to Dr. Bradford seeking an additional opinion on diminished capacity and non-insane automatism as a result of the appellant’s change in instructions.
• January 26, 2012: During an appearance at court, it was revealed that the appellant reversed his instructions again, now conceding everything except the voluntariness and admissibility of his videotaped confession. Mr. Fleming and Crown counsel went through the proposed agreements and admissions. Mr. Fleming then consulted Mr. Gregson, and the appellant did not object to the positions discussed by counsel.
• January 27, 2012: Mr. Fleming wrote to Dr. Bradford seeking an additional opinion on operating mind. In his letter, Mr. Fleming stated that “[i]t would be of great assistance to be able to provide Mr. Gregson with your conclusive explanation that he had an ‘operating mind’”.
• February 7, 2012: Mr. Fleming wrote an email to the Crown regarding operating mind and voluntariness, stating that he was “quite openly ‘passing the buck’ to Mr. Justice Rutherford to provide a decision, so that the Court of Appeal cannot criticize my failure to do so, by awarding Gregson a new kick… based on my alleged incompetence, or his obstinacy.”
• February 8-9, 2012: The evidence for the voir dire on the voluntariness of the videotaped confession was heard.
• February 13, 2012: Mr. Fleming wrote to the Crown asking to speak with Dr. Sinclair in the presence of Crown counsel. Mr. Fleming mentioned consulting with a neurologist who suggested that atypical type 3 Virchow-Robin spaces could result in symptomatic problems of a psychological order. Mr. Fleming needed “that comfort of Dr. Sinclair being able to say clearly that he did not observe any such psychological deficits in Mr. Gregson” and “the comfort … that Dr. Sinclair had in fact turned his mind to the rare diagnostic possibility of psychological trauma, and had specifically discounted this”. Mr. Fleming expressed his belief that “Dr. Sinclair is best-positioned and well-qualified to ‘close this particular door’”. Mr. Fleming also said “[f]inally, my aim is to make sure this trial does not take any longer than necessary.” Mr. Fleming noted that he did not anticipate that he would receive any supporting expert opinions for diminished capacity or automatism and that he would likely be unable to make these arguments.
• February 15, 2012: Mr. Fleming sent a draft factum on voluntariness to the Crown and suggested that he “go first and concede admissibility of all, to avert possible problems with Mr. Gregson.”
• February 21, 2012: Counsel provided submissions on voluntariness, and the confession was declared to be admissible.
• February 27, 2012: The trial proper began with jury selection.
• March 13, 2012: The jury returned guilty verdicts for first degree murder and robbery.

(3) Investigation after trial

[15] A limited s. 684 appointment under the Criminal Code, R.S.C. 1985, c. C-46, was made to determine whether there was merit to an appeal of the murder conviction and whether an application should be made for a full s. 684 appointment. Ms. Apple Newton-Smith, then Mr. Gregson’s appellate counsel, reviewed the trial record and, in March 2015, communicated to Mr. Fleming that there were concerns with respect to his representation of the appellant and the appearance that he was not advocating for the appellant’s interests. She referred to some of the appellant’s correspondence with the Crown and Dr. Bradford and Mr. Fleming’s factum on voluntariness. In the fresh evidence before this court, there is a summary of Mr. Fleming’s responses explaining his conduct and his work on the case.

[16] LAO engaged Mr. Philip Campbell to advise on whether effective and ethical legal services were provided to the appellant by Mr. Fleming. In a report dated October 28, 2015, Mr. Campbell provided a thorough review of the circumstances of the case, the impugned conduct and correspondence, and Mr. Fleming’s explanations. Mr. Campbell believed that “there is no reasonable possibility that an allegation of [ineffective assistance of counsel], in its usual form, could succeed on an appeal by Mr. Gregson.” However, Mr. Campbell also observed that an accused is entitled to a lawyer who is loyal to the interests of the accused and if the appellant could establish that Mr. Fleming was indifferent to or actively advocating against his interests, there would be a miscarriage of justice, even if it could not be established that a lawyer vigorously defending his interests could have achieved a different result.

[17] After Mr. Campbell’s report, it came to light that Mr. Fleming had lied about being an RCMP officer when he first met the appellant. He had also lied when he explained his February 13, 2012 letter to the Crown in response to Ms. Newton-Smith’s concerns. He had said that he had consulted his daughter, who was a neurosurgeon. It turned out that Mr. Fleming does not have a daughter. Mr. Fleming was cross-examined by appellate counsel in 2019 on his conduct of the trial. He has retired since the trial. He now suffers from cognitive deficits, as a result of which his memory of the events is extremely limited.

B. Issues on appeal

[18] The appellant claims that Mr. Fleming “did not act with undivided loyalty” such that the appellant did not have a lawyer looking after his interests. He insists that this is not a claim of ineffective assistance of counsel in the ordinary sense, but a claim of denial of counsel altogether. He compares this case to R. v. Al-Enzi, 2014 ONCA 569, 121 O.R. (3d) 583, where this court held that a trial judge’s denial of a severance or mistrial produced a miscarriage of justice for Mr. Al-Enzi, whose counsel withdrew in the middle of trial, because while an amicus was appointed an amicus was not an adequate substitute for defence counsel. The appellant asserts that Mr. Fleming viewed himself as amicus and Mr. Fleming’s conduct similarly deprived him of counsel, implicated the integrity of the administration of justice, compromised the appearance of fairness, and resulted in a miscarriage of justice. He argues that the verdict cannot be allowed to stand regardless of the strength of the Crown’s case, the absence of prejudice, or the inevitability of the verdict.

[19] The appellant points to four particular instances which he says illustrate a breach of Mr. Fleming’s duty to his client:

1. Mr. Fleming lied to gain the appellant’s trust so that the appellant would retain him;
2. Mr. Fleming represented to the appellant that he would contest the voluntariness of certain admissions and statements, but he knew and communicated to Crown counsel that this argument would not succeed without advising the appellant about the legal merits;
3. Mr. Fleming misunderstood his role and improperly shared defence trial strategy and the weaknesses of defence arguments with Crown counsel; and
4. Mr. Fleming lied about having consulted with his own expert with respect to diminished capacity, which was the one possible defence the appellant might have had at trial.

[20] The respondent takes the position that, whatever Mr. Fleming’s failings as counsel, he was not motivated by a desire to “sell out” his client and acted at all times with his best interests in mind, even if some of his actions were inadvisable or misguided. The record, including the fresh evidence filed on this appeal, indicates that Mr. Fleming was doing his best for Mr. Gregson in very difficult circumstances.

C. Discussion

(1) The duty of loyalty

[21] Despite the appellant’s broad framing of the appeal as a general miscarriage of justice issue, properly understood, the appellant’s argument is that Mr. Fleming breached his duty of loyalty to the appellant.

[22] The duty of loyalty owed by a lawyer to their client is undoubtedly a foundational principle in the adversarial system. As explained in R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 12, “[u]nless a litigant is assured of the undivided loyalty of the lawyer, neither the public nor the litigant will have confidence that the legal system, which may appear to them to be a hostile and hideously complicated environment, is a reliable and trustworthy means of resolving their disputes and controversies.” The principle of the duty of loyalty endures because it is essential to the integrity of the administration of justice: at para. 12. It consists of several dimensions, including a duty not to disclose confidential information, a duty to avoid conflicting interests, a duty of commitment to the client’s cause or zealous representation, and a duty of candour with the client on matters relevant to the retainer: at paras. 18-19.

[23] That said, the duty is not unlimited. Lord Reid’s remarks in Rondel v. Worsley, [1969] 1 A.C. 191 (U.K. H.L.), at pp. 227-28, accepted by this court in R. v. Samra (1998), 129 C.C.C. (3d) 144 (C.A.), at para. 64, illustrate this point:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client's case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. And by so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him. [Emphasis added.]

[24] Allan C. Hutchinson, in his textbook Legal Ethics and Professional Responsibility, 2nd ed. (Toronto: Irwin Law, 2006), at pp. 106-7, similarly explains that there are limits to lawyers’ obligations to place their clients’ interests ahead of all others. One of the primary constraints is a lawyer’s duty to the courts.

[25] It is also useful to remember that the concepts of ineffective assistance and disloyalty cannot be conflated. A breach of the duty of loyalty does not occur whenever a client’s interests are damaged by a lawyer’s actions. A lawyer acting with intent to further a client’s interests sometimes can, by incompetence, damage those interests. Such a lawyer has not breached the duty of loyalty. Otherwise, every incompetent act would be an act of disloyalty.

[26] The existing test for whether there has been a breach of loyalty owed by a lawyer to their client, when raised for the first time on appeal, may be stated as follows. First, there must have been an actual conflict of interest between the respective interests represented by counsel and, second, as a result of that conflict, there must have been some impairment of counsel’s ability to represent the interests of the appellant: R. v. W.(W.) (1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at p. 237; Neil, at para. 39; and R. v. Silvini (1991), 68 C.C.C. (3d) 251 (Ont. C.A.), at pp. 258-59.

[27] As the Supreme Court accepted in Neil, a conflict is a “substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client, or a third person”: at para. 31. Where the allegation of a conflict of interest is raised for the first time on appeal, the court must be concerned with actual conflicts of interest, not just potential or possible conflicts, and whether counsel’s representation was in fact compromised in such a way as to result in a miscarriage of justice: W.(W.), at pp. 238-39.

[28] This court noted in Samra that the problem of conflict of interest has usually arisen because counsel has been retained to act for a client opposed in interest to the former client: at para. 19. In the context of joint representation of co-accused, an actual conflict exists when a course of conduct dictated by the best interest of one accused would, if followed, be inconsistent with the best interests of the co-accused: W.(W.), at p. 239.

[29] In Samra, the appellant alleged that a miscarriage of justice had occurred when the appointed amicus, who had formerly been the appellant’s defence counsel for the same matter, had disclosed confidential information when he clarified something the appellant’s new counsel had said. This court noted that this was the only time an actual conflict of interest might have arisen and where possibly confidential information was disclosed, but even so, there was no adverse effect on the appellant’s defence as a result of that conflict. As such, while it was not necessary to decide whether an actual conflict existed, this court doubted, at para. 63, that there was a conflict:

It is not unusual that counsel may find themselves in a conflict between their duty to the client and their duty to the court. It has never been suggested that when such a conflict arises counsel is always disqualified from continuing to act in the case.

[30] If the two-part test is satisfied, the court may order a new trial: Neil, at para. 40.

(2) Did Mr. Fleming breach his duty of loyalty to the appellant?

[31] In my view, Mr. Fleming did not breach his duty of loyalty to the appellant. At the outset, it is important to emphasize the circumstances that form the context of Mr. Fleming’s actions. Mr. Fleming, a staff lawyer for LAO, agreed to represent an accused on the eve of trial in a notorious murder of a police officer. The Crown case was strong. The only, and faint, hope was that some aspect of diminished capacity could result in a verdict of manslaughter. The accused was not likely to be (and was not in fact) a sympathetic witness; he insisted on testifying, and it would have been obvious that he would not be helping his cause. Mr. Fleming was in an unenviable position.

[32] That said, Mr. Fleming was not in a position of conflict. While he clearly understood that his obligation to his client had to be tempered by his duty to the administration of justice and he made some decisions which were not advisable, these cannot be understood as arising from any conflicting loyalty. The appellant points to Mr. Fleming’s statements and conduct and asks this court to infer that Mr. Fleming believed he was a friend to the court and was preoccupied with trial expediency, saving LAO the expense of another lawyer, and avoiding an appeal. While Mr. Fleming may have been concerned with some of these considerations, he was not, however, placed in a position where he had to choose between the appellant’s best interests and his own best interests or the best interests of some other entity or client. Nor did he make any choices that preferred other interests over the appellant’s interests as a result of a conflict of interest. There were no actual conflicts that impaired Mr. Fleming’s representation of the appellant. This becomes apparent when considering the examples the appellant relies on as breaches of the lawyer’s duty of loyalty.

[33] The first basis relied on by the appellant as illustrating divided loyalty is what he refers to as the “foundational lie”. When he first met with the appellant, Mr. Fleming told him that he had been a member of the RCMP and that he had killed two people in the course of duty. As the fresh evidence indicates, this was not true. Mr. Fleming was never a member of the RCMP. In his affidavit, the appellant states that this contributed to his confidence in Mr. Fleming as they shared an experience. For reasons that are difficult to understand, Mr. Fleming had previously told his former law partner the same fabrication. Whatever motivated Mr. Fleming to tell this story, the fact that it was not a fabrication communicated only to the appellant tends to undermine any suggestion that it can be explained by divided loyalties on the part of Mr. Fleming.

[34] Obviously, the fabrication of one’s biographical details in any situation is unethical and should not be condoned. This lie, however, was not “foundational” and cannot be understood to have essentially undermined the entire relationship as the appellant argues.

[35] While the appellant says that the lie helped him feel comfortable with Mr. Fleming, he does not say that he would not otherwise have retained him.

[36] Moreover, according to the law in Canada as set out above, even if such a lie were “foundational” to the relationship it would not constitute a breach of loyalty unless it was occasioned by a conflict and it impaired counsel’s representation: see Neil at para. 39. As Mr. Fleming had not actually taken any actions as counsel at the time of that conversation, there could be no impairment of his representation at that point. The only inference that can reasonably be drawn from the record is that he was concerned to develop a rapport with the appellant so that he could retain some control and prevent his client from losing his temper, changing instructions, and possibly firing him mid-trial, a situation Mr. Fleming understood would not be in the interests of the appellant or the administration of justice. While his means for effecting this were not laudable, they do not indicate disloyalty on the part of Mr. Fleming.

[37] Second, the circumstances around the somewhat bizarre factum submitted by Mr. Fleming on the voluntariness voir dire further illustrate the same pattern: a misguided attempt to provide the best defence possible for the appellant in the face of a very strong Crown case and no evidence to support the appellant’s assertion that he did not have an operating mind when he made the statements as a result of his personal and medical circumstances as well as the blow to his head delivered by the officer.

[38] When the appellant was insisting on pressing this argument in the voluntariness voir dire, Mr. Fleming wrote two additional letters to Dr. Bradford seeking input as to whether, in his view, the appellant’s condition could provide the basis for any limited capacity defence. His suggestion that he meet with Dr. Sinclair, the Crown expert, to see if there might be anything there before the trial was strange and unusual as well but it was clearly motivated by his wish to do all he could. The report from Dr. Bradford did not support an NCR defence but did leave a very small crack open for an argument that he might have had some sort of diminished capacity. However, the basis for such an argument was directly addressed and answered by Dr. Sinclair’s report. In the end, Mr. Fleming did not obtain a response from Dr. Bradford before the voir dire, and no meeting with Dr. Sinclair ever took place.

[39] Mr. Fleming’s explanation for his voluntariness factum was that the appellant’s statements were going to be admitted no matter what. Mr. Fleming, facing that reality, was concerned that if he simply conceded, the appellant would be furious, discharge him, and that would derail matters, presumably in a way that would not help the appellant. While this was questionable, there is no basis to suggest that it was borne out of disloyalty. It was a function of Mr. Fleming’s manner of dealing with his client: build a respectful relationship and allow him to determine how his defence would be conducted.

[40] Third, Mr. Fleming’s communications with the Crown in which he sent the written instructions he wanted his client to sign was unquestionably misguided and wrong. However, his explanations for this do not support a finding that it was driven by disloyalty to his client. Again, Mr. Fleming had a volatile client who was not taking his advice. He believed, rightly or wrongly, that the best he could do for him in the circumstances was to keep him calm with a view to preventing him from further instruction reversals and from ending up without a lawyer mid-trial. In addition, he expressed the view, in an email he sent to Mr. Delmar Doucette seeking advice with his instructions, that the documents were not, in substance, different from the admissions that the appellant’s former lawyer had filed when she was counsel on the agreement of Mr. Gregson.

[41] Mr. Doucette subsequently advised Mr. Fleming that the communication of a client’s instructions was never acceptable and should not have been attempted. In retrospect, Mr. Fleming acknowledged to Mr. Campbell that it had been an error for him to attempt to share the instructions with the Crown. It was not done as a result of any conflict on Mr. Fleming’s part.

[42] Fourth, the appellant raises Mr. Fleming’s letter to the Crown dated February 13, 2012, in which Mr. Fleming claimed to have spoken with a consultant and raised the possibility of speaking with Dr. Sinclair. Mr. Fleming subsequently told Mr. Campbell that the consultant was his daughter, a neurosurgery resident in the United States. Mr. Fleming claimed she had agreed with Dr. Sinclair’s report that the usual manifestations of the appellant’s conditions, if any, were impairments of balance, sight and hearing. She had added that there were possibilities of psychological brain function impairment and suggested that he ask someone such as Dr. Sinclair.

[43] The fresh evidence indicates that Mr. Fleming does not have a daughter or any child or step-child who is a neurosurgeon. There is no way of knowing who, if anyone, Mr. Fleming spoke to or why he would have made this up. That said, there is again an absence of any conflict on his part that could provide a motive for him to lie. It is clear that he was trying to find support for some sort of limited capacity defence. The problem was that the evidence simply did not support it. In fact, the contemporaneous evidence shows that he was trying his best for his client and was personally discouraged by the prospects for his client. Mr. Campbell included his notes taken from his interview with François Dulude, a lawyer who had assisted Mr. Fleming during the trial. Mr. Dulude recalled that Mr. Fleming was discouraged by the lack of evidence that could support any diminished capacity defence and that Mr. Fleming worked hard on the case. Mr. Doucette, who Mr. Fleming consulted on the subject of drafting instructions, also expressed the view that Mr. Fleming, while seeing the case as largely “hopeless”, never “threw in the towel”. These observations do not support the suggestion that Mr. Fleming was in any sort of conflict.

[44] In sum, the evidence on the conduct on the part of Mr. Fleming that the appellant points to does not reveal any actual conflict of interest that could ground a finding of a breach of the duty of loyalty, pursuant to the test in Neil. Given the difficult circumstances in which Mr. Fleming was acting, there were reasonable explanations for his at times misguided conduct, including that he was trying to pursue any possible defence available to the appellant and to seek concessions or favours from the Crown. In my view, Mr. Fleming was not acting out of divided loyalty, but was committed to his client’s cause. As a result, the appellant’s sole ground of appeal on the breach of the duty of loyalty cannot succeed.

[45] As the appeal from conviction is dismissed, it will not be necessary to address the sentence appeal, given the minimum sentence for first degree murder.

D. Disposition

[46] I would dismiss the appeal.

Released: October 7, 2021 “D.W.” “A. Harvison Young J.A.” “I agree David Watt J.A.” “I agree M.L. Benotto J.A.”