Court Information and Parties

Information No.: 2811 998 15 11536, 15 25230, 15 33995, 15 23349

Ontario Court of Justice

Her Majesty the Queen v. George Maxwell

Before: The Honourable Justice M. Felix Date: December 8, 2015 Location: Oshawa, Ontario

Appearances

K. Pollock – Counsel for the Crown

T. Smith – Counsel for George Maxwell

Reasons for Ruling

FELIX, J. (Orally):

Introduction

The defendant George Maxwell has requested a preliminary inquiry concerning several criminal offences including Dangerous Operation Cause Bodily Harm.

The Crown brought an application to remove Mr. Maxwell's counsel of choice, Tyler Smith, on the basis that there is a disqualifying conflict.

Having due regard for the Constitutional importance associated with a defendant's right to choose his own lawyer, the Court provided an opportunity for counsel to jointly propose a just resolution to the issue. The parties were not able to agree.

For the reasons I will outline, the application is granted in part – Tyler Smith is partially disqualified from acting in this preliminary inquiry.

Mr. Peter Bawden will be permitted by the Court to be present for the evidence of Ms. Karri Dymond and to conduct the cross-examination of Ms. Karri Dymond.

Procedural Considerations

This application was filed outside of the time frame required by the Criminal Rules. The respondent, Mr. Smith resiled from the position that the application should be dismissed for lack of compliance with the Criminal Rules. I will confess that I was unlikely to resolve such an important issue by resort to the Criminal Rules of Procedure. I permitted the application to proceed and granted some leeway to the respondent in the response.

The Witness – Karri Dymond

I have not yet begun the preliminary inquiry, however I am aware that the anticipated evidence surrounds the alleged dangerous operation of a tow truck during which a cyclist was struck and the defendant allegedly fled the scene.

A material Crown witness is Ms. Karri Dymond. The Crown has expressed an intention to call this witness. She was apparently operating a motor vehicle directly behind the tow truck driver and observed the operation of the vehicle and the fact that the tow truck struck a cyclist.

Ms. Dymond has provided a written statement and an audio-recorded statement to the police. In both statements she describes the driving she observed and the contact with the cyclist. In the second statement Ms. Dymond indicates that after the incident Mr. Maxwell contacted her. She asked him if he knew anything about the incident. Mr. Maxwell hung up the phone according to Ms. Dymond's statement.

Ms. Dymond did not identify the operator of the tow truck in either statement.

I am advised by the Respondent that identification is a contested issue at the preliminary inquiry.

I have received evidence that Ms. Dymond and Mr. Maxwell were in a relationship for approximately 5 years and have known each other for 20 years. I have not received evidence as to the current status of the relationship.

The obvious issue of concern is how Ms. Dymond came to be positioned directly behind a tow truck allegedly driven by Mr. Maxwell, yet she apparently has no material evidence as to who was operating the tow truck.

The Conflict

The core of the conflict issue surrounds Mr. Tyler Smith's representation of both Ms. Dymond and the defendant. In 2011 he acted for both Mr. Maxwell and Ms. Dymond concerning charges of criminal harassment. The matter was completed in 2011 with guilty pleas on the part of each defendant. This is the extent of Mr. Smith's representation of the witness, Ms. Dymond. A certified copy of the Information and attachments were filed as an exhibit on the application. As an officer of the Court he advises she is not a current client.

The Applicant did not seek to examine or cross-examine Mr. Tyler Smith on the application.

Position of the Applicant

The Crown position is that nothing short of an order removing counsel will properly address the conflict issue.

Position of the Respondent

Mr. Tyler Smith acknowledges that there is a conflict issue to address.

When he became aware of the status of Karri Dymond as a witness, he immediately and responsibly notified the Crown. This notice occurred months ago before the dates for the preliminary hearing were scheduled.

Mr. Smith submitted the following important considerations:

1. This was a preliminary inquiry and not a trial and as such the Court would not be weighing the credibility of witnesses necessarily.

2. The credibility of Ms. Karri Dymond may not be an issue at the preliminary inquiry.

3. George Maxwell's position is that he waives any opportunity to obtain independent legal advice. He waives any issues associated with Tyler Smith's prior representation of Karri Dymond. Further, Tyler Smith has been representing George Maxwell for approximately ten years and simply put, he wants Tyler Smith to be his lawyer.

4. Ms. Dymond has received independent legal advice and waives any issue associated with Tyler Smith's prior representation.

Mr. Smith proposed the following procedure with the agreement of Mr. Maxwell:

1. Independent defence counsel would be present for the direct examination and would conduct the cross-examination of Ms. Dymond. I should note this independent counsel was not part of his law firm or associated with his firm.

2. Tyler Smith formally undertook not to convey any solicitor-client information concerning Ms. Dymond to the independent defence counsel. He pointed out that Mr. Maxwell had been in a relationship with Ms. Dymond for many years and could independently advise counsel regarding the witness, Ms. Dymond.

3. Tyler Smith would voluntarily absent himself from the courtroom for the testimony of Ms. Dymond, lest there be any concern about his presence or any impact on the witness because of his presence.

Essentially, Mr. Smith proposed a "partial disqualification" model (see R. v. Brissett, [2005] O.J. No. 343 (Ont. S.C.J.) at paragraphs 67-69) and submitted that in these particular circumstances any concerns associated with the conflict were properly addressed and that the conflict should not disqualify him from acting for Mr. Maxwell.

Waiver – The Defendant

Mr. Maxwell has filed an affidavit waiving any issues associated with Mr. Smith having represented Ms. Dymond. Courtesy of another application, prior to hearing evidence on this application, I am aware that Mr. Maxwell has an extensive criminal record. Mr. Smith has acted for Mr. Maxwell for ten years on numerous legal matters and there can be no question that Mr. Smith is his counsel of choice. Today, I have conducted an on-the-record inquiry of Mr. Maxwell to determine whether he understands the proceedings and whether he is voluntarily complying with this process. I am satisfied that he understands the purpose of the proceedings, he is clear in his wish that Mr. Smith be his counsel of choice and he is clear on the potential for this issue arising in the future and the potential for delay in this matter or other applications. I am satisfied in all of this, notwithstanding Mr. George Maxwell, as evidenced by his affidavit, marked as the most recent exhibit, has waived the opportunity to speak to a lawyer independent of Tyler Smith.

Waiver – The Witness

Ms. Karri Dymond attended on the day this application was scheduled. I am advised she attended voluntarily. She identified herself to the Court and presented a document for my review. This document was prepared in her own handwriting, carried a seal from a commissioner of oaths, and was sworn before legal counsel who is a commissioner of oaths. Ms. Dymond acknowledged that she produced the document and that she was waiving solicitor-client privilege in relation to Tyler Smith. She confirmed that she had received independent legal advice on the issue. She could not recall the last name of the lawyer she spoke to, but she was clear she spoke to a criminal defence lawyer. She waived any issues with respect to Mr. Smith's prior representation of her. The Court provided an opportunity for either counsel to examine Ms. Dymond on this application under oath in a more formal matter and this opportunity was declined. The document prepared by Karri Dymond and signed by her, sworn November 30th, 2015, indicates:

I, Karri Lyn Dymond, reside at the City of Paisley, Ontario, hereby swear to the following statements,

1. I was a witness to hit and run incident on or about April 30th, 2015.

2. The accused, George A. Maxwell, is alleged to have committed a hit and run on April the 30th, 2015.

3. I was a witness in my own vehicle at the time and I can attest to the facts related to the incident.

4. The accused's lawyer, Tyler Smith, at Hicks Adams LLP, has represented me in an unrelated matter over five years ago.

5. I hereby waive any privilege between the accused's lawyer and myself related to this incident, if applicable.

The Law

The right to counsel of choice is an important foundational principle of our criminal justice system cloaked with Constitutional protection. Notwithstanding this important principle a defendant may not choose counsel and counsel may not accept a retainer, such that the administration of justice is compromised: (See R. v. Speid, [1983] 8 C.C.C. (3d) (Ont. CA), R. v. Robillard, [1986] O.J. No. 261 (QL) (Ont. CA), Brissett, supra).

Courts have considered the issue of conflict in the context of counsel's general duty to the client, the rules governing lawyers, solicitor-client privilege, and the impact on the public's perception of the criminal justice system (see Macdonald Estate v. Martin, [1990] S.C.J. No. 41 (SCC), Brissett, Speid, supra). I will not repeat these important principles.

Concerning this application it is an important consideration that both the former client and the current client waive any issue associated with the prior representation of Ms. Dymond by Tyler Smith. That being said, waiver does not determine the application. The Court reserves the right and has the responsibility to consider the impact on the public perception of the criminal justice system: (See R. v. Billy, [2009] O.J. No. 4737 (Ont. Supt. Ct.), R. v. Parsons, [1992] N.J. No. 97 (Nfld. CA), Robillard, supra).

This application addresses circumstances that are different than many other cases of conflict. For example:

1. In Brissett the former client did not waive solicitor-client privilege and there was no evidence that Mr. Brissett had the opportunity to receive independent legal advice. The proposed "partial disqualification" option involved the use of a lawyer associated with the conflicted lawyer.

2. In Robillard the conflict concerned counsel's prior representation of a Crown witness in a related proceeding for possession of alleged proceeds flowing from the very allegations of robbery at issue at the preliminary hearing.

3. In some cases waiver cannot address the public perception of the criminal justice system. In Billy, the public perception of the criminal justice system was negatively impacted, because counsel had previously acted for the complainant (now deceased). There was no waiver. While the case involved different charges, they were related in that the defence of the accused would require counsel to attack the character of his prior client: (Billy, supra, paras. 32-33).

I have considered the helpful and persuasive analysis provided by Mr. Justice Ian Nordheimer in R. v. Bogiatzis, [2002] O.J. No. 5937 (Ont. Supt. Ct.) at paragraphs 12 through 14.

The difficulty with the Crown's position is that there is no evidence before me upon which I could conclude that there was, in fact, confidential information imparted by any of these former clients to Mr. Orr that would compromise his ability to fully and effectively defend Mr. Bogiatzis or would act to the detriment of Mr. Christodoulou. The Crown submits that I should infer that confidential information was imparted to Mr. Orr. The Crown relies on the following statement from Macdonald Estate v. Martin, where Mr. Justice Sopinka said:

In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the Court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant.

This is not a case, like Macdonald Estate or other cases, in which these issues ordinarily arise, because the former client is complaining about the lawyer acting for the other person and is asserting that the lawyer is in possession of confidential information that could be used to the former client's detriment. It is, in those circumstances, that Mr. Justice Sopinka said that the onus must be placed on the lawyer to satisfy the Court that he or she is not possessed of such confidential information. In contrast, in this case we have a situation where the former clients are not complaining at all.

And at paragraph 14, Mr. Justice Nordheimer refers to the Ontario Court of Appeal.

Mr. Justice Doherty in R. v. W. (W.), said that what must be established in order to justify a disqualification order is the – there is a word missing there, or presence of an actual conflict of interest or a "realistic risk" of a conflict developing. In order to consider whether there is a realistic risk such as to justify a disqualification order, it seems to me that there is an obligation on the party seeking the disqualification, in this case the Crown, to provide a sufficient evidentiary basis upon which the Court could conclude that a realistic risk exists before counsel is called upon to refute that suggestion.

[Emphasis added]

There is no evidence to infer that Tyler Smith's representation in 2001 and 2011 is "sufficiently related to the retainer from which it is sought to remove the solicitor": (Bogiatzis, supra, para. 12). Neither client is complaining: (Bogiatzis, supra, para. 13). I must still cast my mind forward in an effort to anticipate any potential conflicts and the impact on the perception of the criminal justice system.

Conflict: Anticipated Issues

In R. v. W. (W.), [1995] O.J. No. 2383 (Ont. CA) Mr. Justice Doherty set out the test to be applied by a trial judge in assessing an alleged conflict of interest in paragraph 33. He said,

It is important to distinguish between the respective functions of a trial judge and an appellate court when faced with a conflict of interests claim. Where the issue is raised at a trial, the Court must be concerned with the actual conflicts of interest and potential conflicts that may develop as the trial unfolds. In deciding whether counsel should be permitted to act for co-accused, trial judges must, to some degree, speculate as to the issues which may arise and the course the trial will take. The trial judges' task is particularly difficult since they cannot be privy to the confidential discussions which may have passed between the clients and counsel and which may reveal the source of potential conflicts. Given those circumstances, trial judges must proceed with caution and when there is a realistic risk of a conflict of interests they must direct the counsel not act for one or perhaps either accused.

Clearly, I must, to some degree speculate as to the issues in this criminal proceeding.

Mr. Smith advises that the credibility of Ms. Dymond is not a relevant issue at the preliminary inquiry, given the limited nature of the inquiry. Respectfully, I do not find favour with this submission. Mr. Maxwell asserts that identification is in issue. This argument fails to recognize that the preliminary inquiry is often a staging ground for issues of credibility, notwithstanding the fact that the presiding justice is not weighing credibility.

With respect to identification, I understand that Ms. Dymond was the closest witness to the person operating the tow truck on the relevant date, who operated the tow truck dangerously and caused bodily harm to a cyclist. In two statements to the police Ms. Dymond provided evidence surrounding the incident and her involvement. In the first statement to the police she indicated that she was honking her horn to gain the attention of the tow truck driver and she was intent on having the tow truck driver stop out of concern for her safety and the safety of others. In a second statement to the police she provided more detailed information concerning the tow truck driver and also related a conversation she had with the defendant, George Maxwell, after the incident.

Ms. Dymond does not identify Mr. George Maxwell as the operator of the tow truck in question. The Crown's theory at this preliminary inquiry is that George Maxwell was operating the tow truck. If true, the magnitude of the coincidence is stark – what are the chances that Ms. Dymond was randomly behind a tow truck allegedly being operated by her partner of five years? How is it that she could not identify the operator?

It is this state of affairs that causes the Crown to be concerned about issues related to this witness. On this record there are objective reasons to be concerned about this witness' evidence. That being said, both statements support a conclusion that the witness has material evidence to provide against the person who operated the tow truck. On this application Ms. Dymond presented evidence in support of her having received independent legal advice and she evidenced a generalized intent to testify in accordance with her statements. I have no evidence of the current status of the relationship with Mr. Maxwell.

Any issues related to Ms. Dymond should focus on her credibility and reliability as a witness. Any issues in that regard are properly the subject matter of this criminal proceeding. I have no evidence to suggest that these issues relate to Tyler Smith's prior representation. There is no link to the subject matter before this Court today. I recognize that there may be some unforeseen circumstance where a conflict becomes apparent. I have not yet commenced hearing evidence on the preliminary inquiry and in particular I have not yet heard from Ms. Dymond. If such a circumstance arises, Mr. Maxwell is aware that the Crown may seek to revive the application. This may cause delay or other issues.

For now, the available options associated with Ms. Dymond testifying include:

1. Attending and refusing to testify
2. Attending and testifying in accordance with her statements
3. Attending and testifying contrary to her prior statements with the attendant potential for subsequent applications to cross-examine or to seek substantive admissibility of her statements
4. Attending and testifying in accordance with her statements and providing additional detail

All of these issues are properly the subject matter of a criminal proceeding. The Court and counsel have tools to address these scenarios.

To the extent that Tyler Smith's prior representation might be a factor, the "partial disqualification" model adequately addresses the risks.

Impact on the Perception of the Criminal Justice System

The balancing consideration involved in the constitutional right to counsel of choice and the perception of the criminal justice system may be addressed using the proposed solution (that is to say, the "partial disqualification model") in the circumstances of this application.

The respondent's proposal would appear to address any concerns about the perception of the criminal justice system on the record that I have before me.

It is important to recognize the procedural implications of this application that are well understood by Mr. Maxwell.

There could be a circumstance in the future, either during the preliminary inquiry, or at a trial (if committal for trial is ordered), where the issue of conflict is raised anew, for example, based on evidence from Ms. Dymond or a change in her position. There would be delay as a result. As I am not privy to comprehensive detail as to the solicitor-client relationship between Tyler Smith and Ms. Dymond, I cannot imagine the various scenarios that could surface. Again, Mr. Maxwell accepts this risk. If Mr. Maxwell is committed for a trial in the Superior Court of Justice, once again, Mr. Maxwell risks delay and the issue being revisited. A trial judge may have a different evidentiary record to consider or may take a different position concerning the issues on the application.

Conclusion

It may be that the more cautious approach would be for Mr. Tyler Smith to decline to act for Mr. Maxwell. It may be that at some later point in this very proceeding or a subsequent proceeding, the issue will surface again, based on some further unforeseen development. But I have a responsibility to judge the application on its merits and on the record before me. Further, I am equipped to handle any subsequent legal issues should they arise.

Finally, Mr. Maxwell wishes Mr. Tyler Smith to act for him, notwithstanding the potential consequences in the future, including potential delay.

The prior representation of Ms. Dymond is not connected to the allegations before the Court.

There is no evidence of an actual conflict.

I have outlined already my speculative considerations in terms of any potential conflicts arising.

When I consider all of the evidence on this application, the important issues raised, and the public perception of this process, the Applicant has not satisfied me that it is necessary to disqualify Mr. Tyler Smith absolutely. I am satisfied that the partial disqualification proposal advanced by the respondent will adequately address the public perception of the criminal justice system.

On the record before me, I am not satisfied that the partial disqualification option will work an injustice or harm the public perception of the criminal justice system.

As a result, the application is allowed in part.

Mr. Tyler Smith will be absent from the courtroom with leave for the testimony of Ms. Karri Dymond. He is not permitted to conduct a cross-examination of this witness.

Mr. Peter Bawden will be permitted to be present for the evidence of Ms. Karri Dymond and will conduct the cross-examination, if any is required at the preliminary hearing.