Court File and Parties

Court File No.: Brampton 12-1425 Date: 2013-02-27 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Donnell McCreath; Jonathan Kerr; Adil Hosannah

Before: Justice J.W. Bovard

Heard on: August 20 and December 17, 2012

Reasons for Judgment released on: February 27, 2013

Counsel:

• Mr. S. Doyle, for the Crown
• Ms. S. Williams, for the accused Donnell McCreath

Judgment

Bovard J.:

[1] Introduction

[1] These are reasons for judgment on the Crown's application to remove defence counsel for Donnell McCreath from the record due to a conflict of interest.

[2] Background

[2] Mr. McCreath and his co-accused are charged with breaking and entering a dwelling house, storing a restricted weapon in a careless manner, and possessing a firearm without a license. In addition, Mr. McCreath is charged alone with possessing a firearm while being prohibited from doing so.

[3] Mr. McCreath retained Ms. Sophia Williams to represent him at a preliminary hearing into these charges. When she was cross-examining Rickford Henry, the principal Crown witness, he stated that he had had contact with Ms. Williams several years ago when she was acting as duty counsel. It was evident that he was quite taken by her and he praised her for what she did for him, calling her his "angel".

[4] The Crown brought an application for an order removing Ms. Williams from the record as Mr. McCreath's counsel because of her previous relationship with Mr. Henry.

[3] The Issues

[5] The issues are whether or not a solicitor-client relationship arose between Mr. Henry and Ms. Williams, and if one did, is there a conflict of interest or the appearance of a conflict of interest if Ms. Williams continues to act for Mr. McCreath?

[4] Factual Background to the Crown's Application

[6] Rickford Henry is one of the owners of the house that the Crown alleges Mr. McCreath and two friends broke and entered. He is the principal Crown witness. He testified that he was at home on the day in question and saw two persons at his front door. While he was looking at them the police came and the persons ran away. The police chased them. He did not see them after that.

[7] He saw the suspects for only two seconds. He gave brief, general descriptions of them to the police. He described them in his testimony as follows: One was shorter than the other one. One had a medium build, or heavier build. One had dark skin and one had light skin. Then he said that one was beige, and the other was dark brown.

[8] With regard to their clothing, he could only remember that the heavier one wore a black jacket.

[9] Mr. Henry did not identify any of the accused as the culprits.

[10] When Ms. Williams was cross-examining Mr. Henry, he recalled that about five years ago he was in the holding cells at the Brampton court house and she was acting as duty counsel. He said that when he was in the cells he spoke to her "a lot of times" and that he hated the conversation that they were having now.

[11] Ms. Williams replied "so you recall me in another capacity" and he said "A lot of times you've been my angel." He said that when he was "downstairs" (meaning the cells) Ms. Williams used to talk to him as duty counsel. She let him know what was going on with his mother upstairs. Ms. Williams did not remember Mr. Henry.

[12] The court held a voir dire into the issue of a potential conflict of interest in Ms. Williams continuing to act for Mr. McCreath. Mr. Henry testified that many times when he was incarcerated, Ms. Williams would tell his mother where he was. He dealt with Ms. Williams once or twice. However, he never retained Ms. Williams as his counsel.

[13] The Crown asked him what he meant when he said that he hated the conversation that he was having with Ms. Williams. Mr. Henry explained that he meant that he did not like the court and "especially when I know her from like – from a different side and she's cross-examining me. I didn't – I don't like being asked questions, sir."

[14] After speaking with duty counsel, both Mr. Henry and Mr. McCreath told the court that they did not have any problem with Ms. Williams continuing as Mr. McCreath's lawyer in this case.

[5] The Crown's Position

[15] The Crown argues that Ms. Williams should be removed from the record because an appearance of a conflict exists for the following reasons:

(1) There is a potential for the misuse of confidential information;

(2) There is a potential for the perception of divided loyalties between Mr. Henry and Mr. McCreath;

(3) There is a possibility that Mr. Henry would be more susceptible to agree with the suggestions of Ms. Williams in cross-examination.

[6] The Defence Position

[16] Ms. Williams argues that she does not even remember Mr. Henry. In any case, he said that she dealt with him one time "some six years ago." This contact was extremely brief and superficial. She was never in a solicitor-client relationship with Mr. Henry, thus no conflict can arise.

[17] Consequently, there is no issue of divided loyalties. Moreover, both Mr. McCreath and Mr. Henry spoke to duty counsel and agreed that Ms. Williams continue with the case as Mr. McCreath's counsel.

[7] Analysis

Was there a solicitor-client relationship between Ms. Williams and Mr. Henry?

[18] Counsel supplied me with excerpts from the Law Society of Upper Canada's Rules of Professional Conduct in addition to much case law regarding conflicts of interest. These authorities are predicated on the existence of a solicitor-client relationship, past or present. This is the central factual issue in the case at bar. If I find that no such relationship existed then that ends the matter. If I find that one did, then I have to examine the authorities. Therefore, I will now turn to the question of whether or not there existed a solicitor-client relationship between Ms. Williams and Mr. Henry.

[19] The evidence is that Ms. Williams met Mr. Henry in her capacity as duty counsel approximately five years ago. She used to talk to him as duty counsel when he was in the cells at the Brampton court house. She let him know what was going on with his mother upstairs. He said that "A lot of times you've been my angel."

[20] Mr. Henry testified that many times when he was in the holding cells, Ms. Williams would tell his mother where he was. But he also said that he only dealt with her once or twice. Importantly, he testified that he never retained Ms. Williams as his counsel. In addition, there is no evidence that Ms. Williams ever acted for Mr. Henry in her legal capacity as duty counsel.

[21] Mr. Henry testified that he does not like court and does not like being asked questions by anyone or by Ms. Williams because of his previous experience with her.

The Law Society of Upper Canada's Rules of Professional Conduct

[22] Rule 1.02 of the Rules of Professional Conduct defines "client", but the definition is not helpful for the case at bar. It simply states that:

"client" includes a client of the law firm of which the lawyer is a partner or associate, whether or not the lawyer handles the client's work;

[23] Rule 2.04(1) states that a "conflict of interest" or a "conflicting interest" means an interest

(a) that would be likely to affect adversely a lawyer's judgment on behalf of, or loyalty to, a client or prospective client, or

(b) that a lawyer might be prompted to prefer to the interests of a client or prospective client.

[24] In Rule 2.04(3) it states that:

A lawyer shall not act or continue to act in a matter when there is or is likely to be a conflicting interest unless, after disclosure adequate to make an informed decision, the client or prospective client consents.

Jurisprudence

[25] In Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, Lamer J. stated the following with regard to when a solicitor-client relationship arises:

When dealing with the right to confidentiality it is necessary, in my view, to distinguish between the moment when the retainer is established and the moment when the solicitor-client relationship arises. The latter arises as soon as the potential client has his first dealings with the lawyer's office in order to obtain legal advice. (Emphasis added)

[26] In Cushing v. Hood, 2007 NSSC 9, para. 33, affirmed, 2008 NSCA 47, 53 CPC (6th) 28 (NSCA) the court held that in order for the solicitor-client relationship to arise the "client" must intend to seek legal advice from the lawyer.

I find that the plaintiff's have failed to prove, on a balance of probabilities, that a solicitor-client relationship existed at the time of the two described conversations in mid-December of 1998. In my opinion, the pertinent facts do not establish that contention; if anything, they establish the opposite contention. One party cannot put a different "spin" on the facts because it may be beneficial or advantageous at a later time. I find that Ms. Cushing did not directly, nor through Mr. Cushing, seek Mr. Hood's professional legal advice in his capacity as their legal adviser. "It is not sufficient to speak to a lawyer for everything to become confidential from that point on ... The relationship must be a professional one at the exact moment of the communication" (See Descôteaux). There was no professional relationship existing at the time of the two conversations in mid-December of 1998 and the Cushings did not intend nor seek such a relationship with Mr. Hood. (Emphasis added)

[27] When a lawyer is hired to act in a manner that lies outside of the scope of the lawyer's professional capacity no solicitor-client relationship arises. See, for example, Wilson v. Favelle, [1994] B.C.J. No. 1257 where the Ministry of Health hired a lawyer to investigate allegations of sexual misconduct by one of its employees. At paragraphs 12, 13 of this judgment, the court stated:

Solicitor/client privilege can only arise in the context of a solicitor and client relationship…the independent evidence of Ms. Keating's hiring is clear that she was hired as an investigator and not as a solicitor to act on behalf of HMTQ. Her duties are described as investigating and reporting. She was asked to "provide advice" but the advice was as to "any violations of standards of conduct for public service employees.

That hiring was not the hiring by HMTQ of a solicitor to represent it in this litigation nor indeed in any context in which solicitor/client privilege might arise.

[8] Conclusion

[28] I find that in the case at bar a solicitor-client relationship did not arise between Mr. Henry and Ms. Williams. Although Ms. Williams was working as duty counsel when she encountered Mr. Henry, the evidence shows that all that happened was that she acted as a messenger for Mr. Henry by (1) telling his mother that he was in the court house holding cells and (2) by telling Mr. Henry "what's going on with my mom's upstairs."

[29] Mr. Henry did not intend to engage, nor did he engage Ms. Williams in her capacity as a lawyer. He just asked her what was going on with his mother upstairs and asked her to tell his mother that he was in the holding cells.

[30] Duty counsel often pass information between accused persons and their friends and families, but that does not make them the persons' lawyers.

[31] Although what Ms. Williams did for Mr. Henry and his mother was part of what duty counsel do for accused persons in custody and their friends and family, this function was outside of Ms. Williams's capacity as a duty counsel lawyer; she was merely a conduit for information about the whereabouts of Mr. Henry and his mother in the court house. She was merely a messenger for Mr. Henry and his mother. She may have been Mr. Henry's "angel" for doing this, but she was not his lawyer. Ms. Williams was not asked for, nor did she give either of them legal advice.

[32] Although it may be worrying for the Crown that Mr. Henry has such a high regard for opposing counsel, this does not constitute a conflict of interest, nor the appearance of a conflict of interest.

[33] After considering all of the circumstances, the law and counsels' submissions, I find that in the case at bar no solicitor-client relationship arose between Mr. Henry and Ms. Williams. Therefore, there would not be a conflict of interest in her continuing to act for Mr. McCreath and cross-examining Mr. Henry.

[34] I would like to thank counsel for their assistance with this matter. In addition, I would like to thank Ms. Sandie Yue Chen, a law student in Osgoode Hall's Criminal Law Intensive Program, for her excellent research and memorandum on the issues in this case.

Signed: "Justice J.W. Bovard"