Ontario Court of Justice
Date: 2019-08-23
Between:
Her Majesty the Queen
— and —
Cameron Gardiner
Conflict of Interest Application
Heard and Ruling Delivered: 23 August, 2019
Counsel:
- Ms. Bhavna Bhangu, counsel for the Crown
- Mr. Elliot Willschick, counsel for the respondent
KENKEL J.:
Background
[1] Mr. Gardiner is charged with two counts of second degree murder. He was the victim of a home invasion in which armed men forced their way into his residence late at night and tied him up. They also tied up a woman who was present. The two were held at gunpoint while the home was ransacked. At one point Mr. Gardiner was able to break free and disarm one of the gunmen. Two of the three intruders were subsequently killed.
[2] The woman who was present is a central witness for the Crown and for the defence. Shortly after the incident she was charged with impaired driving. By that time Mr. Willschick was representing her friend Mr. Gardiner. The witness asked Mr. Willschick to assist her as she wouldn't get Legal Aid and she was facing a custodial sentence. Mr. Willschick agreed to speak to the Crown on her behalf with a view to potential resolution. In a meeting with an assistant Crown attorney he noted the fact that the witness had just been a victim of a violent home invasion as a circumstance the Crown might consider when deciding whether or not to file a Notice of Increased Penalty. Mr. Willschick subsequently referred the case to another lawyer. That matter is still before the courts. Unfortunately, since that date the witness has gone missing. Her position on this application could not be determined.
Conflict Application
[3] The Crown asked the court to consider whether an order should be made removing Mr. Willschick as counsel for Mr. Gardiner. Assuming the witness will eventually be located, she will be a central witness at trial for both parties. Even though Mr. Willschick's contact with her was limited, it amounted to a solicitor-client relationship. Mr. Willschick or someone working with him would be in the unfortunate position of having to cross-examine his former client. Even if the circumstances might indicate the evidence of the witness is not necessarily adverse to Mr. Gardiner's interest, in a criminal trial even subtle shifts in testimony may require a strong response from the defence.
[4] Mr. Willschick conceded that even his limited contact without retainer did create the solicitor-client relationship identified by the Crown. He submitted that the information provided during that contact with the witness was provided to the Crown with her consent and was information that the Crown's office was already aware of. There is no actual conflict and Mr. Gardiner signed a waiver following independent legal advice on this point asking that Mr. Willschick be permitted to continue as his counsel despite his contact with the witness.
[5] Mr. Willschick agreed that the appearance of justice might suffer if he were to take part in the cross-examination of this witness and he does not wish to do so. He proposes a partial disqualification with conditions that he not be present for the cross-examination of that witness and that he take no part in the preparation for that cross-examination. Such an accommodation is possible here as there is an independent second counsel who has been appointed by Legal Aid. Mr. Robb MacDonald does not practice or share space with Mr. Willschick and they are well positioned to avoid any conflict concern by keeping Mr. Willschick apart from that one aspect of the case.
Partial Disqualification
[6] Partial disqualification has been used as a remedy in several cases: R v. Baltovitch, [2003] OJ No 2285 (CA), R v. Lewis, [2001] OJ No 6343 (SCJ), R v. Stephenson, [1999] OJ No 3129 (SCJ), R v. Maxwell, 2015 ONCJ 750. As Justice Rosenberg said in Baltovitch at paragraph 11:
"In considering an application such as this, a court has two particular concerns:
the public interest in the administration of justice including confidence in the legal profession,
an individual's right to select counsel of his own choice."
An order removing counsel should not be made unless there are compelling reasons. In Baltovitch the Court of Appeal found that in some cases partial disqualification provides a sufficient remedy to address conflict of interest concerns while at the same time preserving the accused's right to counsel of choice.
[7] I agree with the respondent that partial disqualification is a sufficient remedy in this case where:
- Counsel's contact with the witness was very limited.
- The last time the witness was in touch with Mr. Willschick, she was advised of this issue and she was agreeable to obtaining independent legal advice regarding a waiver.
- The information provided to the Crown was already known to both parties.
- Mr. Gardiner originally retained Mr. Willschick and wishes him to continue to act in his matter even if he cannot participate in the evidence related to the one witness. Mr. Gardiner has obtained independent legal advice and signed a waiver to that effect.
- There is an independent co-counsel involved in the case. Mr. Willschick has not provided that counsel with any information related to the particular witness and he has not taken part in any preparation related to her evidence.
Order
[8] The Crown's application for removal of Mr. Willschick as counsel is denied, but the Crown has shown that a partial disqualification is necessary. With respect to the terms of that disqualification I adopt the suggestion of Mr. Willschick:
He is not to communicate with Mr. MacDonald or any other party regarding the cross-examination of this witness at the preliminary hearing.
He is not to be present in the courthouse when that witness attends to testify.
When the witness is located, she is to be notified of this order and provided with a copy. If she objects to the order or its terms the Crown may bring the matter before the court so that objection may be considered.
Delivered at Barrie: August 23, 2019.
Justice Joseph F. Kenkel