ONTARIO COURT OF JUSTICE

CITATION: R. v. Barrett, 2017 ONCJ 835
DATE: 2017 12 04

Toronto – Old City Hall Court

COURT FILE No.: 17-15000417

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MANDY MARIE BARRETT

And

ASHLEY NICOLE HARRIS

Before Justice Beverly A. Brown

Heard on November 30 and December 1, 2017

Reasons for Ruling released on December 4, 2017

Ms. Julia McNabb................................................................................ counsel for the Crown

Mr. Peter Lam.......................................... counsel for the accused Mandy Marie Barrett

Mr. Michael Strathman ………………..counsel for the accused Ashley Nicole Harris

BROWN, B.A., J.:

Introduction:

[1] This matter came before the court on November 30, 2017, as the first day of a five day trial. Ms. Barrett stands charged alone with the charge of assault with a weapon, and she stands jointly charged with Ms. Harris with the offence of assault causing bodily harm, relating to the same female complainant on the same offence date. The court received a s. 7 Charter application with a request that there be a s. 24(1) Charter stay arising from the allegation of lost evidence, from one of the defendants, Ms. Harris. The court also received a Crown response to that application. As the court was about to commence the actual trial, the Crown advised the court of an issue which had previously been raised with respect to Mr. Lam seeking to represent Ms. Barrett in this trial. This issue now falls to this court to determine, before commencing this five day trial with two defendants, and what is expected to entail the calling of evidence by the Crown of the complainant and an additional 3 to 4 civilian witnesses, together with 4 to 5 police officers.

[2] The issue relates to whether Mr. Lam should be permitted to represent Ms. Barrett in this trial. Mr. Lam went on the record for Ms. Barrett over a year ago, October of 2016. As of the judicial pre-trial in this case, conducted on Jan. 19, 2017, Mr. Lam’s retainer to represent Ms. Barrett was confirmed. At the same judicial pre-trial, Mr. Strathman clearly indicated that he was not retained to represent Ms. Harris, that he was acting in the capacity of assisting her to that stage, but that any trial involving Ms. Harris should be conducted with or without counsel. Mr. Strathman did advise the judicial pre-trial judge at that event that it was his intention, on behalf of Ms. Harris, to bring a Charter motion to stay proceedings as a result of lost evidence. On January 19, 2017, a target date for a 5 day trial was set for both defendants, with counsel availability of Mr. Lam and Mr. Strathman, to begin on November 30, 2017, and continue Dec. 1, 4, 5 and 6 of 2017. A confirmation hearing date was set for 112 court, the busy practice court at Old City Hall, for September 22, 2017.

[3] Mr. Strathman did not go on the record as counsel for Ms. Harris until Nov. 2, 2017. The Charter motion brought by Mr. Strathman on behalf of Ms. Harris, was eventually served on the Crown and filed with the court on November 22, 2017, some 8 days before the scheduled trial. The court did not receive any materials until that date. However, prior to that date, on Nov. 14, 2017 Mr. Strathman sent to the Crown by fax, a copy of that application.

[4] Leading up to this trial, the case had been in the 112 practice court of Old City Hall for set date appearances following the judicial pre-trial in January of 2017. Those dates were April 10, Sept. 22 as the scheduled confirmation date noted above, Oct. 24, Nov. 2 and 9, of 2017. Due to the shortness of time, the court does not have before it any transcripts of the relevant court appearances, and relies on the submissions of counsel as to what happened on various court dates.

[5] The court is advised that the Crown had no knowledge of the potential problem with the retainer of Mr. Lam for Ms. Barrett, until after the confirmation hearing date in 112 court dealt with the case. After that appearance for the case on Sept. 22, 2017, Ms. McNabb discovered, inadvertently, the potential problem. She discovered that Mr. Lam, on the record for Ms. Barrett for this trial for a significant period of time, was also defence counsel for Ms. Harris in other criminal proceedings unrelated to these charges. The Crown was quite concerned about what the Crown saw as an obvious conflict of interest, and gave both counsel, Mr. Lam and Mr. Strathman, an opportunity to provide their position. The case was next in court on October 24, 2017. On that date, the 112 court judge was advised of the Crown concern regarding the conflict, and there was a suggestion by the judge presiding in court that day, that defence counsel explore the issue further.

[6] The case was then put over to November 2, 2017. It was on that date that Mr. Strathman was actually retained and finally went on the record for Ms. Harris. At that time, the judge presiding in 112 court heard from counsel that Ms. Barrett had obtained independent legal advice, as suggested by the judge on October 24, 2017. However Ms. Harris did not appear in court on that day. The issues were raised with the judge, who was not in a position to decide any matter regarding counsel representing an accused at trial. The trial judge could consider or decide the issue at trial. Nonetheless, the case went over to November 9, 2017, at which time each defendant filed a certificate of readiness. Mr. Lam indicated on his certificate of readiness that he planned to bring a Charter Motion under s. 7 and 11 and on filing a motion in accordance with the rules. Mr. Strathman on his certificate of readiness indicated that he anticipated bringing a motion under s. 7 and 24(1) of the Charter and filing a motion in accordance with the rules. Both counsel, representing the two defendants before this court, were already in breach of the 30 day notice required by the Criminal Rules of this court, for Charter applications. At that point, it was only 21 days before the commencement of the trial. The case was remanded to the trial date, November 30, 2017.

[7] The Crown has indicated that she was of the position that the Crown was in a difficult position, being 3 weeks before a weeklong trial that was scheduled to take place, and took the lead of the judge in 112 court who this court understands did not press the issue of a conflict. Having stated that, there never was a formal application brought by the Crown to prohibit Mr. Lam acting as counsel for Ms. Barrett. The court is not aware of any decision made by any judge in 112 court hearing the set date appearances for this case in November, 2017. The Crown in the case at bar acknowledges the deficiency in proceeding without ever having brought an application arising from its concern as to the conflict of interest of Mr. Lam.

[8] This court raised with counsel, when this issue was first addressed in court at the commencement of the trial, that counsel should have taken this issue once it was identified, back before the judge who did the earlier judicial pre-trial. That did not happen. That judge is still available. Alternatively, as the matter started to get closer to the trial date, the practice is for such issues to be brought before the judge scheduled to conduct the trial. That did not happen. Where neither the judicial pre-trial judge nor the assigned trial judge are available to hear such issues, the case can be brought before the local administrative judge to hear the issue. Any one of these steps would have permitted a broader consideration of the issue, with a review of any relevant law. Instead, the issue was raised in the busy 112 practice court at Old City Hall, which deals with Criminal Code guilty pleas, sentences following those guilty pleas, case management issues including complaints of defence counsel regarding delayed disclosure, s. 8 Charter editing of ITO affidavits, self represented persons having judicial pre-trials in open court, Crowns providing sentencing positions to in-custody persons from bail court, and any other cases particular to the presiding judge for that day, such as sentencing of defendants from prior days, and any reserves or oral judgments. This court has presided in that court often, and it is probably the busiest court at Old City Hall, where cases generally only have a few minutes to be heard given the lengthy lists in that court. The system for having confirmation dates in that court is only to confirm that essentially there are no problems, in that disclosure is complete, counsel are retained, and any issues raised in a judicial pre trial have been satisfactorily addressed. Where any issues are raised which should be discussed in another forum, such as before the previous judicial pre trial judge, the upcoming trial judge assigned to that court, or the local administrative judge, the case can be put over for the issue to be considered by such a judge in that context.

[9] The issue under consideration by this court was raised unexpectedly, from the court’s perspective. The court was advised as the parties were about to be arraigned, at the commencement of the trial. The court called upon counsel to provide some case law to consider the issue, and the case went over to the afternoon of the first day of trial, and then to the second day of trial, in response to counsel wanting additional time to research the issue. In addition, Mr. Lam has provided a two page affidavit from Ms. Barrett on the second day of trial, where she indicates her satisfaction with Mr. Lam representing her, and that she has received previous independent legal advice.

Analysis :

Preliminary issue – Does a trial judge have jurisdiction to deal with this issue? :

[10] On the second day this issue was argued, Mr. Lam took the position that this court effectively does not have jurisdiction to consider this issue. He bases his submission on the trial judge in 112 court not finding that there was a problem, and the lack of a formal application by the Crown, with respect to his ability to represent Ms. Barrett in this trial. The Crown maintains the position, as it has throughout, that there is a conflict of interest in Mr. Lam seeking to represent Ms. Barrett, while he continues to represent Ms. Harris in other criminal proceedings which are ongoing. The Crown explained and apologized for not having brought a formal application to disqualify Mr. Lam from representing Ms. Barrett, on the basis of just responding to the actions or lack of action of the judge sitting in 112 court on November 9, 2017. The Crown takes the position that this court, as the trial court, does have jurisdiction to control the proceedings including the representation of the parties, and can consider the issue of Mr. Lam seeking to represent Ms. Barrett in this trial.

[11] The court finds that it does have jurisdiction to consider the representation of the parties in a trial over which it is presiding, as is the case at this time. This is where the Crown seeks to maintain its earlier position of concern arising from what it states is a conflict of interest relating to Mr. Lam potentially representing Ms. Barrett. Effectively, as the court considers the positions of counsel at this stage, the Crown maintains this position notwithstanding what was put in the affidavit of Ms. Barrett.

Conflict of interest issue :

[12] The issue of conflict of interest of counsel seeking to represent parties in criminal trials has been considered by trial and appellate courts over the decades. The more common scenarios where this issue arises relates to a single defence counsel seeking to represent multiple accused on a trial, or where a defence counsel seeks to represent a defendant charged with criminal matters, where that counsel has previously represented a witness for the Crown or complainant. Many cases have considered that scenario.

[13] The case before this court is particularly unique. The conflict arises from Mr. Lam seeking to represent Ms. Barrett, who is a co-accused of Ms. Harris (an ongoing client of Mr. Lam in other proceedings). In other words, the conflict does not arise from a past representation, but rather an ongoing representation by Mr. Lam of both Ms. Barrett (should this court permit him to represent her in this trial) and Ms. Harris (his client in another criminal proceeding). This court has asked counsel to put before the court relevant cases to address this scenario.

[14] This issue impacts on both defendants. Ms. Harris is potentially affected as her lawyer, in ongoing criminal proceedings, seeks to represent her co-accused in a criminal trial, potentially putting her in a position of being cross-examined by her current lawyer should she choose to give evidence in this trial. Mr. Strathman advised the court that he had given Ms. Harris advice and she was agreeable with Mr. Lam representing her co-accused. Ms. Barrett is potentially affected as the lawyer she seeks to have represent her interests, has ongoing loyalty her co-accused. The two accused share the same lawyer, although in different proceedings. The issue relates to the potential of Mr. Lam to modify his defence of Mr. Barrett to accommodate his ongoing representation of her co-accused Ms. Harris.

[15] Mr. Strathman, counsel for Ms. Harris, put before the court the cases of R. v. Speid, 1983 1704 (ON CA), R. v. Joanisse, 1995 CAN LII 3507 (ON CA), R. v. Widdifield, 1995 3505 (ON CA), [1995] O.J. No. 2383 (C.A.), although did not make particular submissions relating to this case law. The court had asked him to address the S.C.C. case which the court was reviewing, of R. v. Neil, 2002 SCC 70, and he made a minimal reference to a bright line test, but not the second part of the test, requesting the opportunity to review the case overnight, and to make submissions on the second day of trial. After that opportunity, Mr. Strathman chose to make no additional legal submissions relating to case law. He indicated to this court that it is an awkward position, that he may have done something different than was done by Mr. Lam in this case. However, he maintained his submission that there is no realistic possibility that a conflict may arise, submitting that he has discussed this case with Mr. Lam many times over the last year. He did acknowledge though that in cases such as the one at bar, witnesses sometimes change their testimony from their statements and things can change.

[16] Mr. Lam on the first day of trial put before the court the single case of R. v. M.Q. , [2012] O.J. No. 1584 (C.A.), and then on the second day of trial put before the court the additional case of R. v. Bogiatzis, 2002 49648 (ON SC), [2002] O.J. No. 5937 (S.C.).

[17] Counsel for the Crown put before the court the case of R. v. Brissett , 2005 2716 (ON SC), [2005] O.J. No. 343 (Sup.Ct.), and then on the second day of trial the cases of R. v. Papasotirious-Lanteigne, [2017] O.J. NO. 1734, and just for subsequent steps in the proceeding, [2017] O.J. NO. 2898. Essentially, the Crown takes the position that there is the potential for conflict or a realistic risk of conflict. The Crown also took the position that any waiver of right by a defendant could later be revoked in a trial. The Crown submits that there is a realistic risk of conflict arising in this trial, should Mr. Lam be permitted to act as counsel for Ms. Barrett.

Factual context for this issue :

[18] In order to properly consider this issue, as the trial judge, the court must consider the nature of the upcoming trial. The court is aware of the factual context for this issue having reviewed the Charter application served and filed by counsel for Ms. Harris, and the response by the Crown. The court did raise, before this conflict issue was even communicated to this court, the concern the court had that Mr. Lam had not brought any Charter application, yet Mr. Strathman in one sentence in his application for Ms. Harris, stated that Mr. Lam seeks to rely on raising s. 7 of the Charter for Ms. Barrett. The court articulated its concern that this is not proper, and that if Ms. Barrett wishes the court to consider any s. 7 Charter application for her, the application should be prepared and put before the court, to give rise to any Crown response to her application, which is not before the court. That has not been done.

[19] The allegations in this case relate to allegations of assault against the two female defendants in this case, arising from their having left a bar in the club district of downtown Toronto, at approx. 3 am on August 6, 2016, after a night of “clubbing”. An altercation took place involving Ms. Barrett, and Ms. Harris. The applicant Ms. Harris characterizes the event as a “brawl” which broke out. Ms. Barrett is charged with assault with a weapon, involved a wedge shoe. The applicant Ms. Harris indicates that “she came to the aid of her friend, Ms. Barrett, who was attacked and only attempted to break up the altercation”. The Crown in her response indicated that both defendants were in a state of intoxication and behaving belligerently. The Crown has indicated that there is an abundance of evidence including multiple civilian witnesses, other witnesses and two videos depicting some of the events of that evening in this trial. The Crown submitted that the police responded quickly to calls regarding a fight occurring outside the nightclub and found the complainant lying down on the sidewalk, in an apparent state of unconsciousness.

The Legal analysis :

[20] It is important to highlight the unique and distinguishing features in this case, which are not apparent in many other cases which have considered the issue of conflict of interest of counsel seeking to represent defendants in criminal trials. The first distinguishing feature is that this issue has come to the court’s attention before the commencement of the trial. As will be set out below from the case law, the analysis for a trial judge to apply in trying to anticipate how issues might arise or play out in a future trial is broader than the analysis of an appellate court reviewing events which actually transpired at a trial. Often the case law arising from appellate court jurisdiction considers whether the appellant agreed to proceed with counsel, if there was any independent legal advice and/or waiver from that appellant at trial, and how the defence might have been compromised by the representation by that counsel. It is very much an analysis of reviewing the history as to the events that already transpired at the trial. This is contrary to the necessary analysis for a trial judge about to commence a trial, where the court must consider this issue contemplating realistically the issues that might arise in the trial. Looking into in the future, the analysis of a trial judge in this context is a much broader analysis. (See R. v. Neil, 2002 SCC 70, [2002] S.C.J. No. 72, at paras. 38 and 39).

[21] The second distinguishing feature in this case, is that counsel is not former counsel to another defendant, complainant, or witness, which is often the case in many fact scenarios considered by judgments considering the conflict of interest issue. In this case, Mr. Lam is seeking to represent Ms. Barrett in this trial, having gone on the record for her over a year ago, while at the same time as this trial he is currently defence counsel for Ms. Harris for other criminal matters which remain before the court. The issue, as will be set out below by this court, is whether this scenario of divided loyalty between Ms. Barrett, whom he seeks to represent in this court, and Ms. Harris, who he represents in another court, causes a conflict of interest and whether there can be a remedy. It will be this court’s finding that in the case of divided loyalty, the provision of independent legal advice to either party cannot remedy the fatal reality of divided loyalty to two current clients.

[22] A lawyer’s duty of loyalty endures through time, noted by the House of Lords in 1821 in Trial of Queen Caroline (1821), by J. Nightingale, vol. II, The Defence, Part 1, at p. 8, was referred to by the Supreme Court of Canada in R. v. Neil, 2002 SCC 70, [2002] S.C.J. No. 72, at paras. 12 (and through to 32):

“12. These words are far removed in time and place from the legal world in which the Venkatraman law firm carried on its practice, but the defining principle -- the duty of loyalty -- is with us still. It endures because it is essential to the integrity of the administration of justice and it is of high public importance that public confidence in that integrity be maintained: MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235, at pp. 1243 and 1265, and Tanny v. Gurman, 1993 3995 (QC CA), [1994] R.D.J. 10 (Que. C.A.). Unless 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: R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at para. 2; Smith v. Jones, 1999 674 (SCC), [1999] 1 S.C.R. 455. As O'Connor J.A. (now A.C.J.O.) observed in R. v. McCallen (1999), 1999 3685 (ON CA), 43 O.R. (3d) 56 (C.A.), at p. 67:

... the relationship of counsel and client requires clients, typically untrained in the law and lacking the skills of advocates, to entrust the management and conduct of their cases to the counsel who act on their behalf. There should be no room for doubt about counsel's loyalty and dedication to the client's case.

13 The value of an independent bar is diminished unless the lawyer is free from conflicting interests. Loyalty, in that sense, promotes effective representation, on which the problem-solving capability of an adversarial system rests. Other objectives, I think, can be related to the first. For example, in MacDonald Estate, supra, Sopinka J. speaks of the "countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause" (p. 1243). Dubin J.A. remarked in Re Regina and Speid (1983), 1983 1704 (ON CA), 8 C.C.C. (3d) 18 (Ont. C.A.), at p. 21:

We would have thought it axiomatic that no client has a right to retain counsel if that counsel, by accepting the brief, puts himself in a position of having a conflict of interest between his new client and a former one.”

[23] Accordingly, while a defendant has a Charter right to counsel, and counsel of choice, that choice is tempered by the restriction that counsel who is sought by the client must not put himself or herself in a position of having a conflict of interest between his new client, and a former one, or as this court would add in this case, another ongoing client.

[24] This court would note, again, that the situation is far worse where a counsel accepts a brief putting himself in a position of having a conflict of interest between his new client, and another ongoing client.

[25] The duty of loyalty of a lawyer to a client is intertwined with the fiduciary nature of the lawyer-client relationship. Fiduciary duties protect relationships important to the public, including the solicitor and client relationship. Disloyalty is destructive to that relationship.

[26] It is significant to note that while some cases dealing with conflict of interest have had a focus on the use and abuse of confidential information from one client relative to another, the duty of loyalty to clients includes a much broader principle of avoidance of conflicts of interest, where confidential information may or may not play a role. The court in Neil, supra, held that the duties of the fiduciary (lawyer) goes beyond the duty not to disclose confidential information. It includes a duty of loyalty, good faith and to not act against the interests of the client. The court stated that the duty of loyalty to current clients is “unassailable”. As referred to in para. 19 of Neil, supra, the duty of loyalty, goes beyond issues of confidentiality, to engage three additional dimensions:

(i) the duty to avoid conflicting interests: Davey v. Woolley, Hames, Dale & Dingwall (1982), 1982 1787 (ON CA), 35 O.R. (2d) 599 (C.A.), and Services environnementaux Laidlaw (Mercier) Ltée v. Québec (Procureur général), 1995 4702 (QC CA), [1995] R.J.Q. 2393 (C.A.), including the lawyer's personal interest: Szarfer v. Chodos (1986), 1986 2508 (ON SC), 54 O.R. (2d) 663 (H.C.), aff'd (1988), 1988 4778 (ON CA), 66 O.R. (2d) 350 (C.A.); Moffat v. Wetstein (1996), 1996 8009 (ON SC), 29 O.R. (3d) 371 (Gen. Div.); Stewart v. Canadian Broadcasting Corp., supra.

(ii) a duty of commitment to the client's cause (sometimes referred to as "zealous representation") from the time counsel is retained, not just at trial, i.e. ensuring that a divided loyalty does not cause the lawyer to "soft peddle" his or her defence of a client out of concern for another client, as in R. v. Silvini (1991), 1991 2703 (ON CA), 5 O.R. (3d) 545(C.A.); R. v. Widdifield (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161 (C.A.); R. v. Graham, [1994] O.J. No. 145 (QL) (Prov. Div.); and,

(iii) a duty of candour with the client on matters relevant to the retainer: R. v. Henry (1990), 1990 3201 (QC CA), 61 C.C.C. (3d) 455, [1990] R.J.Q. 2455 (C.A.), at p. 465 C.C.C., per Gendreau J.A.; Spector v. Ageda, [1971] 3 All E.R. 417 (Ch. D.), at p. 430; the Canadian Bar Association, Code of Professional Conduct (1988), c. 5, Commentary 4-6. If a conflict emerges, the client should be among the first to hear about it.”

The court held that acting against a current client engages stricter and more comprehensive rules than acting against a former client. (see para. 21)

[27] The Supreme Court of Canada in Neil, supra, considered the relevant rules of professional conduct for counsel governing this issue. The case at bar is governed by the rules of the Law Society of Upper Canada. The most relevant provisions are as follows :

“Section 3.4 CONFLICTS

1 Duty to Avoid Conflicts of Interest

3.4-1 A lawyer shall not act or continue to act for a client where there is a conflict of interest, except as permitted under the rules in this Section.

a) Commentary

[1] As defined in rule 1.1-1, a conflict of interest exists when there is a substantial risk that a lawyer's loyalty to or representation of a client would be materially and adversely affected by the lawyer's own interest or the lawyer's duties to another client, a former client, or a third person. Rule 3.4-1 protects the duties owed by lawyers to their clients and the lawyer-client relationship from impairment as a result of a conflicting duty or interest. A client's interests may be seriously prejudiced unless the lawyer's judgment and freedom of action on the client's behalf are as free as possible from conflicts of interest.

[2] In addition to the duty of representation arising from a retainer, the law imposes other duties on the lawyer, particularly the duty of loyalty. The duty of confidentiality, the duty of candour and the duty of commitment to the client's cause are aspects of the duty of loyalty. This rule protects all of these duties from impairment by a conflicting duty or interest.

[3] A client may be unable to judge whether the lawyer's duties have actually been compromised. Even a well-intentioned lawyer may not realize that performance of his or her duties has been compromised. Accordingly, the rule addresses the risk of impairment rather than actual impairment. The expression "substantial risk" in the definition of "conflict of interest" describes the likelihood of the impairment, as opposed to its nature or severity. A "substantial risk" is one that is significant and plausible, even if it is not certain or even probable that it will occur. There must be more there a mere possibility that the impairment will occur. Except as otherwise provided in Rule 3.4-2, it is for the client and not the lawyer to decide whether to accept this risk.”

[28] The wording of this section and the commentary mirrors that of the case law setting out the duty of loyalty of counsel to the client. It also sets out the test of “substantial risk” as the test for counsel to employ in deciding whether or not to accept a retainer for a new client.

[29] Most particularly, as held by the Supreme Court in Neil, supra, at para. 26, quoting from the comments of Wilson, J.A. (as she then was) in Davey v. Woolley, Hames, Dale & Dingwall, supra, at p. 602, the court observed :

“The underlying premise ... is that, human nature being what it is, the solicitor cannot give his exclusive, undivided attention to the interests of his client if he is torn between his client's interests and his own or his client's interests and those of another client to whom he owes the self-same duty of loyalty, dedication and good faith.”

While the Supreme Court did refer to the “bright line” test, it in para. 31 of Neil, supra, it adopted the notion of a “conflict” as 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.”

[30] This court has reviewed many other judgments in its consideration of this issue. In R. v. Baharloo, [2017] O.J. No. 2260 (C.A.), in what was obviously an appellate review of trial proceedings, the court considered an allegation of ineffective assistance of counsel arising from a conflict of interest, which it found caused a miscarriage of justice. In that case, defence counsel represented the defendant in a trial where the potential arose of her raising an alternate suspect defence, that would have related to another of her clients. That defence was not advanced in the subject trial. The court noted at para. 29 that effective assistance of counsel requires counsel to give the accused’s cause the counsel’s undivided loyalty, as a prerequisite to proper legal representation. (See also R. v. W.W. (1995), 1995 3505 (ON CA), 25 O.R. (3d) 161 (C.A.) . The court also stated :

“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] 2 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 (1999), 1999 3685 (ON CA), 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] 2 S.C.R. 177, at para. 55.”

[31] The Court in Baharloo, supra, also considered the S.C.C. judgment in Neil, supra, at paras 33 to 36 of its analysis, holding that the first step requires the bright line analysis. However, this analysis applies only where the immediate, legal interests of clients are directly adverse in the matters on which the lawyer is acting. Where this rule does not apply, the second step of the analysis as to whether there is a conflict of interest requires the more contextual “substantial risk” principle, quoting from the Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39 judgment 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".

[Emphasis added]

[32] The nature of this undivided loyalty required by counsel to clients, was also revisited by the S.C.C. in Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] S.C.J. No. 7. The Court held, in the majority judgment of Cromwell, J.J. at para. 96 :

“96 Clients -- and the broader public -- must justifiably feel confident that lawyers are committed to serving their clients' legitimate interests free of other obligations that might interfere with that duty. Otherwise, the lawyer's ability to do so may be compromised and the trust and confidence necessary for the solicitor-client relationship may be undermined. This duty of commitment to the client's cause is an enduring principle that is essential to the integrity of the administration of justice. In Neil, the Court underlined the fundamental importance of the duty of loyalty to the administration of justice. The duty of commitment to the client's cause is an essential component of that broader fiduciary obligation. On behalf of the Court, Binnie J. emphasized the ancient pedigree of the duty and wrote that it endures "because it is essential to the integrity of the administration of justice and it is of high public importance that public confidence in that integrity be maintained": para. 12 (emphasis added). This unequivocal and recent affirmation seems to me to demonstrate that the duty of commitment to the client's cause is both generally accepted and fundamental to the administration of justice as we understand it.”

Further, the Court stated at para. 103:

“103 The duty of commitment to the client's cause ensures that "divided loyalty does not cause the lawyer to 'soft peddle' his or her [representation]" and prevents the solicitor-client relationship from being undermined: Neil, at para. 19; McKercher, at paras. 43-44.

While this case considered the duty in the context of a review of legislation related to proceeds of crime, the Court’s consideration of the principles related to the duty of a lawyer to a client is enduring.

[33] The court has also considered the judgments in R. v. M.Q., supra, and R. v. Bogiatzis, supra, together with various other judgments on this issue.

Application to this case :

[34] In this case, the court must consider in the context of the potential conflict of interest, whether there is a substantial risk that Mr. Lam’s representation of Ms. Barrett in this trial would be materially and adversely affected by his duties to his other client Ms. Harris. In conducting a defence for Ms. Barrett in this trial, those issues could include whether he might restrict or circumscribe the nature of any defence for Ms. Barrett, the raising of reasonable doubt, or the application of the law regarding parties, that might in her defence potentially deflect blame to Ms. Harris. There may well be, as often is the case in cases of this nature, issues of identification as to who did what to whom. Civilian witnesses may point the finger for identification by way of describing an assaulter in a vague way. Would that witness be cross-examined by Mr. Lam to show that potentially it was Ms. Harris who did a portion of the assault? If so, this would divide his loyalty between two existing clients. Also, if Ms. Harris testifies, Mr. Lam as counsel for Ms. Barrett has the opportunity to cross-examine his client Ms. Harris. This begs the question, how would he conduct that cross-examination? Would it reflect his divided loyalty to both clients? Would he “soft pedal” that cross-examination? How would Ms. Harris feel about being cross-examined by Mr. Lam, her counsel in another criminal case whom she has had the fiduciary relationship and expectation of full and undivided loyalty? How could she feel, or how could anyone walking into the court, perceive the administration of justice in that context when a client was being cross-examined, potentially aggressively by their own lawyer? Clearly that would not be a positive scenario, either as viewed by Ms. Harris after the fact, or a member of the public walking in and seeing that scenario and considering the expected role of lawyers in our criminal justice system, which requires the confidence of the public in the integrity of the system.

[35] Secondly, in terms of his duty to Ms. Barrett, might she feel that Mr. Lam was avoiding shedding the blame or culpability in this case to her co-accused, simply because she is another of his clients? Again, rhetorically, how could Ms. Barrett feel that Mr. Lam is giving her undivided loyalty?

[36] The problem, this court would find, is that there would be divided loyalty between two current clients. Independent legal advice cannot cure or remedy this type of problem, where the trial court cannot predict, nor can counsel, the twists and turns that may play out in a criminal trial of the nature set out above. There are many witnesses, both civilian and police. Criminal trials are fluid. Evidence is not always as counsel expect.

[37] This court finds that if the court were to permit Mr. Lam to represent Ms. Barrett, while he remains counsel for Ms. Harris in another criminal law proceeding, that he would be putting himself in a position of divided loyalties. Given the nature of this fiduciary relationship, the court finds that the independent legal advice provided to Ms. Barrett, relied upon by Mr. Lam, does not negate this concern. Nor does the representation of counsel for Ms. Harris in this trial that she is agreeable to this representation negate this concern. This is a clear case, where both defendants in this case are charged arising from the same incident, where parties provisions may be considered, where issues related to which of the two might be culpable, or to what extent, where each may testify and give evidence which might be the subject of cross-examination. The Court of Appeal for Ontario in Baharloo, supra, at para. 50, in reviewing what it found to have been an actual conflict of interest in the trial stated that 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.”

[38] Similarly, this court has the same concern. The court finds that there is a substantial risk that the dual retainers and divided loyalty of Mr. Lam to both his clients, Ms. Barrett and Ms. Harris, could cause Mr. Lam’s representation of his client to be materially and adversely affected. If in defending Ms. Barrett Mr. Lam proceeded to advance a theory that Ms. Harris was the party who caused bodily harm, and/or used a weapon, he would be “throwing under the bus” his current ongoing client Ms. Harris. At the same time, there would be a substantial risk that in being concerned for Ms. Harris and the risk of her liability in this trial, he would engage a defence for Ms. Barrett which would “soft peddle” her representation hoping for the best outcome, with a constrained defence that did not implicate Ms. Harris in what was an altercation where the allegation is that both participated in an altercation with the complainant, to varying degrees.

[39] This court would find that there is a substantial risk, if this court permits Mr. Lam to represent Ms. Barrett in this trial, that there would be a conflict of interest, which could result in ineffective assistance of counsel, and a potential miscarriage of justice. This court will not permit counsel to proceed with clearly divided loyalties to both clients. And as illustrated by Mr. Lam offering information to the court during submissions, that he had spoken to Ms. Harris about her case before this court, there is more than just a potential of counsel having loyalties divided. This communication took place at some point just prior to the start of this trial, and it is not clear whether this was in the presence of Mr. Strathman, counsel for Ms. Harris in this trial. It is nonetheless a reality of one instance of what has already transpired by Mr. Lam communicating with his ongoing client Ms. Harris about this case.

[40] The court will not permit Mr. Lam to represent Ms. Barrett in this trial, and rules that he is disqualified from representing her in this trial.

Released: December 4, 2017

Signed: Justice Beverly A. Brown