Court of Appeal for Ontario

Date: 2021-12-08 Docket: C62717

Before: Fairburn A.C.J.O., Feldman and Harvison Young JJ.A.

Between: Her Majesty the Queen Respondent

And: Carole Leroux-Blake Appellant

Counsel: Carter Martell, for the appellant Lisa Mathews and Ildikó Erdei, for the respondent

Heard: In writing

On appeal from the conviction entered on June 9, 2016 by Justice Patricia C. Hennessy of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals from her conviction for possession of cocaine for the purpose of trafficking. The cocaine was found in a trailer that belonged to the appellant and her co-accused, her former husband. Each maintained their innocence.

[2] The appellant’s main ground of appeal is an ineffective assistance of counsel claim arising from a conflict of interest.

[3] Trial counsel originally represented the appellant’s co-accused, including at his preliminary inquiry. The Crown withdrew the charges against the co-accused at that proceeding. This was done in exchange for a statutory declaration from the co-accused that he had no knowledge of the fact that there were drugs in the trailer.

[4] While the record is unclear as to when the appellant officially retained the same trial counsel, by the time that her trial commenced in the Superior Court of Justice, that counsel was clearly on the record and representing her.

[5] The appellant denied that the drugs were hers and told counsel that she wanted to plead not guilty. Trial counsel accepts that she told him this.

[6] Trial counsel’s view was that the case against her was strong because of what he perceived to be an inculpatory utterance she had made at the time of arrest. Yet the appellant denied that she made that utterance. Trial counsel accepts that he never asked the Crown whether the Crown intended to use the utterance in the prosecution case. He also accepts that he never interviewed the appellant, just in case she admitted knowledge and control to him, which he believed would limit the defence he could run at trial.

[7] Despite all of this, trial counsel determined that the appellant had no substantive defence and that the case could only be won by challenging the search warrant that had been executed on the trailer, resulting in the discovery of the cocaine. His view was that the success of any such application would be “determinative” of the case. Therefore, without explaining matters to the appellant, counsel made an agreement with the trial Crown that, in exchange for consent to cross-examine the affiant on a Garofoli application, [1] he would concede that the search warrant challenge would be determinative of the trial. The trial judge was advised that this was the defence position.

[8] Importantly, the fresh evidence shows that the trial Crown did not raise the conflict issue because he believed, based on trial counsel’s position, that possession of the drugs was not at issue. In the trial Crown’s view, the only live issue at trial would be the viability of the search warrant. The trial Crown acknowledges in the fresh evidence that, had the matter gone to trial, the Crown would have had to call the appellant’s former co-accused as a prosecution witness to deny that he had knowledge and control over the cocaine, because the only people with control over the trailer in which the cocaine was found were the appellant and her co-accused. This would have given rise to a clear conflict of interest because their interests were immediately and directly adverse to one another; any substantive defence put forward on behalf of the appellant would necessarily implicate the appellant’s former co-accused, to whom trial counsel still owed a duty of loyalty: R. v. Baharloo, 2017 ONCA 362, 348 C.C.C. (3d) 64, at para. 34. Had the appellant’s former co-accused testified, her trial counsel would have had to cross-examine him, bringing this conflict into stark relief.

[9] As acknowledged by the respondent, it is clear that the appellant’s interests were directly adverse to her former co-accused’s interests. The miscarriage of justice arising from the conflict of interest is exposed to light when one considers how the matter unfolded.

[10] When the Garofoli application was dismissed, despite having been told by the appellant that she did not want to plead guilty, and without consulting her, trial counsel proceeded with a nolo contendere procedure where an agreed statement of facts was presented to the court that resulted in a finding of guilt, without a guilty plea being entered. [2] For all intents and purposes, it was a guilty plea.

[11] The manner in which counsel proceeded by way of an agreed statement of facts rendered the verdict unreliable and a miscarriage of justice has resulted.

[12] We therefore accept the respondent’s concession that this appeal must be allowed and the appellant’s conviction set aside. The respondent has clearly stated that the appellant will not be re-prosecuted. In these circumstances, a new trial is ordered, and the respondent will undoubtedly take the appropriate steps to bring the matter to a conclusion without a trial.

[13] Given the respondent’s position, the appellant is not required to surrender in accordance with her bail condition.

Fairburn A.C.J.O. K. Feldman J.A. A. Harvison Young J.A.

Footnotes

[1] R. v. Garofoli, [1990] 2 S.C.R. 1421.

[2] The trial judge relied upon counsel’s representations and did not question the appellant as to whether she agreed to proceeding in this fashion.