Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 03 04 COURT FILE No.: Newmarket 19 09478

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JUAN CHUA

Before: Justice David S. Rose

Heard on: March 4, 2021

Counsel: Mr. J. Arvisu......................................................................................... counsel for the Crown Ms. C. Szpulak......................................................... counsel for the accused Juan Chua

Ruling on Motion to Remove Counsel of Record

Rose J.:

[1] Juan Chua appeared before me on November 2, 2020 and pleaded not guilty to the charge of Possession of a Controlled Substance for the purpose of trafficking. On November 25, 2020 I delivered a Pre-Trial ruling regarding a Charter Application brought under s. 8 of the Charter. See R. v. Chua 2020 ONCJ 547. The trial was to have started on its merits on December 9, 2020, but on December 10, 2020 Mr. Chua changed his plea to guilty.

[2] On December 10, 2020 Mr. Chua admitted to possessing 1.2 kg of Methamphetamine in his bedroom. $344 in cash was seized by the police when they were executing the search warrant. After Mr. Chua’s admission he was convicted of the offence. The Crown did not put his criminal record into evidence and the matter was adjourned to January 26, 2021 for sentencing. No Pre-Sentence report was ordered, but several documents were given to me by Ms. Szpulak. These include letters of support, confirmation of drug rehabilitation work, and employment letters. I also received a chart prepared by Ms. Szpulak regarding pre-sentence custody. This lists time credited pursuant to the Court of Appeal ruling R. v. Downes (2006), 2006 ONCA 3957, 208 O.A.C. 324.

[3] On January 26, 2021 the sentencing did not proceed because I was advised that Mr. Chua was ill and could not attend. The case went over to February 10, when Defence Counsel could not attend, so the matter was adjourned. By then I was advised that the sentence would proceed by way of joint submission. The case was then put to February 24, 2021. On January 26 and February 10 Mr. Chua appeared by Designation under s. 650.01 of the Code.

[4] On February 24, 2021 Mr. Chua did not attend Court. Ms. Szpulak could provide no reason for his absence and a Form 7 warrant issued for his apprehension. The case was put to today for Mr. Arvisu to consider his position.

[5] Mr. Arvisu today has asked to put the case over for one month to give the police that time to execute the warrant. If he is not found by then the Crown will apply under s. 475 of the Code to proceed to an in absentia sentencing hearing. Ms. Szpulak brings a motion to withdraw from the case. The Crown takes no position on her motion.

[6] The motion to withdraw is based on Mr. Chua’s non-communication with Ms. Szpulak, and her understanding that he will not willingly attend Court to complete the case. She candidly advised the Court that she has had no contact with him since the end of January or beginning of February. She also said that her last instructions from him were to proceed to sentence by way of joint submission. Ms. Szpulak was equally candid that Mr. Chua has never sought to discharge her as counsel.

[7] Sometimes counsel seek to withdraw because of ethical considerations such as: instructions which are at odds with a lawyer’s obligation to the Court; a breakdown in the solicitor client relationship; or a conflict of interest. Sometimes the request to withdraw is premised on non-payment of retainer fees. This is not one of those cases. Here Ms. Szpulak has valid instructions, namely to make sentencing submissions based on a conviction and defence documents which have been filed. There is no conflict of interest between Ms. Szpulak and Mr. Chua, nor is there one between Ms. Szpulak and her professional obligations to the Court. The request to withdraw is not one which must be granted because it is for ethical considerations, see Cunningham v. Lilles 2010 SCC 10 at par. 49. Rather the remedy of withdrawal is discretionary, see Cunningham (supra) at par. 50.

[8] In Cunningham (supra) the Court outlined several factors to look at when considering whether to grant counsel’s request to withdraw for non-ethical reasons. These include:

• whether it is feasible for the accused to represent himself or herself;
• other means of obtaining representation;
• impact on the accused from delay in proceedings, particularly if the accused is in custody;
• conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
• impact on the Crown and any co-accused;
• impact on complainants, witnesses and jurors;
• fairness to defence counsel, including consideration of the expected length and complexity of the proceedings;
• the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.

[9] I would apply those factors this way. In this case Mr. Chua is at the penultimate phase of the trial, namely submissions on sentence. All that is outstanding is proof of Mr. Chua’s criminal record and argument. I have not been advised of any impact on witnesses if Ms. Szpulak were to withdraw. The trial is beyond that phase. There is no impact on any co-accused. Ms. Szpulak has ably represented Mr. Chua thus far, see R. v. Chua 2020 ONCJ 547 at par. 26. What I place considerable weight on, is that were Ms. Szpulak to withdraw Mr. Chua would be unrepresented at a crucial point in the proceedings, namely the anticipated Crown application to proceed to sentence in absentia and, if granted, the sentencing submissions. I also place real weight on the fact that I convicted Mr. Chua of possession of 1.2 kg of Methamphetamine for the purpose of trafficking. He is therefore exposed to a lengthy custodial sentence. Ms. Szpulak has valid instructions regarding the balance of the case. There is much at stake here for Mr. Chua.

[10] I have not been alerted to any potential prejudice to Mr. Chua if I were to deny Ms. Szpulak’s Motion to withdraw. She has her instructions, which are consistent with advocating for the best result for him. Were she to withdraw there may well be an in absentia proceeding over a lengthy jail sentence where he has no voice advocating for his interests. That would be contrary to the best interest of the administration of justice.

[11] Lastly, I am alert to the possibility that Mr. Arvisu may seek to resile from the joint submission. In that event Mr. Chua is exposed to an even longer jail sentence and furnishes another reason why Mr. Chua should have the benefit of continued representation of Ms. Szpulak.

[12] For these reasons Ms. Szpulak’s motion to withdraw is denied.

Dated this 4th day of March 2021

Signed: Justice Rose