COURT FILE NO.: 11-10000752/0000
DATE: 20130111
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
STEPHEN DOWNEY
Defendant
Helen How and Mareike Newhouse, for the Crown
Philip Campbell and Sean MacDonald, for the Defendant
HEARD: December 21, 2012
CROWN APPLICATION TO REMOVE DEFENCE COUNSEL
DEFENCE APPLICATION FOR ADJOURNMENT
DEFENCE APPLICATION FOR JUDICIAL INTERIM RELEASE
REASONS FOR DECISION
Clark J.:
INTRODUCTION
[1] The accused is charged with the second degree murder of one Victor Rucinski (“Rucinski”). The trial was scheduled to commence January 14, 2013. On December 21, 2012, I heard the following applications:
(i) an application by the Crown to remove counsel of record, Mr. Sean MacDonald;
(ii) an application by the defence for an adjournment; and
(iii) an ancillary application by the defence to grant bail to the accused.
[2] After hearing the applications seriatim, in a brief oral pronouncement I gave my decision on each that afternoon. I indicated at that time that I would release written reasons for those decisions as soon as time permitted; these are those reasons.
I. CROWN APPLICATION TO REMOVE DEFENCE COUNSEL
INTRODUCTION
[3] As noted above, the Crown applied to have the court disqualify Mr. MacDonald from continuing to act for the accused. The application is predicated on the assertion that Mr. MacDonald has conducted himself in such a way as to create a realistic prospect that he will become a witness in the trial of this matter. Mr. MacDonald’s co-counsel, Mr. Campbell, argued the application on behalf of the accused.
THE FACTS
[4] On April 4, 2010, Rucinski’s lifeless body was discovered in an alley behind a semi-detached house situate at 2253 Dundas Street West, in the City of Toronto (“2253”). An autopsy determined that he had been beaten to death; the cause of death was blunt force trauma.
[5] Some years before his death, Rucinski’s left leg was amputated. As a result, he walked with crutches. It is not disputed that, despite a thorough search of the alley in which Rucinski’s body was found, the police found no crutches. It is also agreed, however, that, having no reason to do so at the time, the police did not search any of the roofs of the buildings surrounding the location of the body.
[6] The extensive injuries to the body suggested to the investigators that, had Rucinski been killed where his body was found, there ought to have been more blood at the scene. In addition, the body displayed a pattern of lividity that the investigators considered to be inconsistent with the position in which the body was found. A review of closed-circuit television recordings from various businesses in the area showed an automobile in the alley on the evening preceding the discovery of the body. Together with the foregoing facts, the absence of crutches at the scene led investigators to conclude that Rucinski had been killed elsewhere, then transported to the alley and dumped there.
[7] The accused was arrested in August of 2010. From the time of his arrest until quite recently the accused was represented by Mr. MacDonald alone. Sometime in the past year, Mr. Campbell became co-counsel.
[8] On April 16, 2012, Mr. MacDonald telephoned 911 and reported that he had discovered a crutch in the area where Rucinski’s body was found that he thought might be related to the murder. He requested that an officer attend the scene to seize what he had found.
[9] Detective (now Sergeant) Katherine Washington of the Toronto Police Service (“TPS”) was dispatched to 2253 and spoke with Mr. MacDonald at that location. Mr. MacDonald showed her a single crutch lying on a walkway running along the north side of 2253.
[10] According to what Mr. MacDonald told Det. Washington, throughout the time he has acted for the accused, Mr. MacDonald, in an effort to discover new evidence, has on numerous occasions attended the location where Rucinski’s body was discovered. On this occasion, according to what he told Det. Washington, he had received information that he would find a crutch or crutches on the roof of a nearby building. He would not reveal the identity of his informant to Washington.
[11] In the spring of 2012, at a judicial pretrial in this matter, defence counsel made known that they may wish to raise the prospect of an alternate suspect. The judge conducting the judicial pretrial indicated that, if they intended to raise an alternate suspect defence, counsel had to bring an application in that behalf at least 60 days in advance of the scheduled trial date.
[12] Further to that directive, counsel filed their application on October 15, 2012. The material filed included what is referred to in those materials as the “will-say” statement of one Joseph Catalano. The existence of Catalano first became known to the defence sometime in 2010, when Mr. MacDonald met him as a result of canvassing panhandlers in the Yonge and Bloor area of Toronto looking for persons who might have information concerning the Rucinski homicide.
[13] The will-say statement is one page in length and consists of the preamble, “It is anticipated that Joseph Catalano will say the following”, followed by ten brief bullet points. To say that the statement is skeletal is to indulge in understatement.
[14] For present purposes, the salient points in the statement reveal that Catalano, a 44-year-old heroin addict, claims to have been with the deceased and another man, identified only as “Harley”, in the alley behind 2253 on the night before Rucinski’s body was found and claims to have seen Harley throw Rucinski’s crutches on the roof of a nearby building.
[15] In terms of the events leading to Rucinski’s death, the seventh bullet point says only that “Harley hit Mr. Rucinski in the alley”. The statement says nothing about the number of times Harley hit Rucinski, what he hit him with, where on his body he hit him or any injury Rucinski sustained as a result. The statement says nothing about the blow or blows that resulted in Rucinski’s death.
[16] The only mention of Rucinski’s death comes in the ninth bullet point, which reads as follows:
• In the spring of 2012 Mr. Catalano first described to Mr. MacDonald crutches belonging to Mr. Rucinski which had been thrown on a roof in the alley in the course of the events preceding his death.
[17] The final bullet point alludes to Catalano repeating what he said to Mr. MacDonald in 2012, concerning the crutch, to a private investigator the same day. It reads as follow:
• On the same day he met with an investigator working with Mr. MacDonald and told him about the crutches thrown on the roof.
[18] The police located Catalano and conducted an interview with him on November 20, 2012. Catalano was given the standard cautions respecting giving false evidence and took an oath to tell the truth. The statement was videotaped.
[19] In his statement to the police, Catalano departed from what he is purported to have said to Mr. MacDonald, as set out in the will-say. While he indicated that he had, indeed, seen Harley and the deceased together in the alley, he told the police that it was not the night before the deceased was found dead, as he had earlier told Mr. MacDonald, but, rather, approximately two week earlier. Catalano was very clear that he did not intentionally mislead Mr. MacDonald, but he was most definitely mistaken in what he had told him.
[20] As noted above, according to what he told Det. Washington on April 16, 2012, acting on information from a source whose identity is not before the court in evidence,[^1] Mr. MacDonald attended 2253 that day in search of a crutch. Evidently, his source had indicated that a crutch was to be found on the roof of a commercial building next door to 2253, at 2255 Dundas Street West (“2255”). Mr. MacDonald attended the scene and made his way to the roof of 2255. Although he found no crutch on the roof itself, Mr. MacDonald indicated to Det. Washington that from his vantage point on the roof he saw a single crutch lying on a walkway that runs alongside the north wall of 2253. As a result of this discovery, Mr. MacDonald contacted a private investigator who attended the scene shortly thereafter. Mr. MacDonald also called TPS Communications to request that a police officer be dispatched to the scene to seize the crutch in order to preserve it as potential evidence. In response to Mr. MacDonald’s call, Det. Washington was dispatched to 2253.
[21] Having spoken briefly to Mr. MacDonald at 2253 and Mr. MacDonald having shown her the crutch, Det. Washington contacted the TPS Duty Desk. She was put in contact with D/Sgt. Pauline Gray of the TPS Homicide Squad, the officer in charge of the investigation into Rucinski’s death. After discussing the matter with D/Sgt. Gray, Det. Washington arranged to have officers from the TPS Forensic Identification Service (“FIS”) attend 2253 to seize the crutch.
[22] Subsequent testing of the crutch by FIS revealed no fingerprints; testing at the Centre of Forensic Sciences (“CFS”) revealed neither traces of blood nor any other genetic material from which a DNA profile could be developed. In short, despite extensive testing, nothing of forensic value was discovered on the crutch to link it to Rucinski. It is also of some moment in this application that the crutch did not show any signs of weathering, such as might reasonably be expected had the crutch been exposed to the elements for more than two years.
[23] The defence contends that it may wish to call Catalano as a defence witness and, to buttress Catalano’s account of having seen Harley assaulting the deceased in the alley, may wish to introduce the crutch into evidence.
POSITION OF THE APPLICANT
[24] Against that backdrop and, in particular, the prospect that Catalano will be called at trial as a defence witness and the crutch introduced into evidence, the Crown argues that the court should disqualify Mr. MacDonald because there is a realistic possibility that he will become a witness in the trial.
POSITION OF THE RESPONDENT
[25] The respondent argues that it is defence counsel’s responsibility to ensure that Mr. MacDonald acts ethically, and adheres to the Rules of Professional Conduct, and it is not for the court to usurp counsel’s responsibility by interceding to disqualify him prematurely. That is particularly so, Mr. Campbell argues, where, as in the case at bar, no proper foundation has been put before the court to show that Mr. MacDonald is apt to be called as a witness, such that his removal is necessary.
DISCUSSION
General Principles
[26] The right to counsel of one’s choice is a fundamental precept of our criminal justice system: R. v. Robillard (1986), 28 C.C.C. (3d) 22 (Ont. C.A.). As O’Connor J.A. stated in R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.), at p. 67, “[t]he very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf.”
[27] In Chiefs of Ontario v. Ontario (2003), 63 O.R. (3d) 335 (S.C.J.), at paragraph 118, Campbell J. recognized the right to be represented by the lawyer of one’s choice as “a general public interest”, which interest is defeated by the removal of counsel against the will of the client.[^2]
[28] In R. v. Clarke, 2012 NSSC 406; [2012] N.S.J. No. 616, at paragraph 140, Hood J. held that the right to counsel of one’s choice is protected by the Charter:
This is a right by implication enshrined in the Charter of Rights, s. 10(b). According to Proulx and Layton, Ethics and Canadian Criminal Law (Toronto: Irwin Law 2001) this right “... most likely is among the principles of fundamental justice protected by s. 7 of the Charter” (p. 291). The authors continue at p. 292:
An appreciation of the interplay between the constitutional rights to the effective assistance of counsel and the choice of counsel is necessary when approaching any conflict-of-interest problem. ...
[29] Notwithstanding its importance, however, it is well settled that the right to counsel of one’s choice “is not an absolute right and is subject to reasonable limitations”: R. v. Speid (1983), 43 O.R. (2d) 596 (C.A.), at p. 598; see also McCallen, at p. 68. It is equally clear that the courts have an inherent jurisdiction to remove a lawyer from the record for conflict of interest. “Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction”: MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, at p. 1245. As Dubin J.A. stated in Speid, at p. 598, “[i]t [is] hoped that these limitations would be well known to the bar, but if not honoured, the court has jurisdiction to remove a solicitor from the record and restrain him from acting.”
[30] At p. 1265 of MacDonald, speaking for the minority, but concurring in the result, Cory J. said:
My colleague [Sopinka J.] stated that this appeal called for the balancing of three competing values, namely: the maintenance and integrity of our system of justice; the right of litigants not to be lightly deprived of their chosen counsel; and the desirability of permitting reasonable mobility in the legal profession.
Of these factors, the most important and compelling is the preservation of the integrity of our system of justice. The necessity of selecting new counsel will certainly be inconvenient, unsettling and worrisome to clients. Reasonable mobility may well be important to lawyers. However, the integrity of the judicial system is of such fundamental importance to our country and, indeed, to all free and democratic societies that it must be the predominant consideration in any balancing of these three factors. [Emphasis added.]
[31] In a similar vein, in Côté v. Rancourt, 2004 SCC 58, [2004] 3 S.C.R. 248, at paragraph 11 ff., Deschamps J. stated:
11 In the case of the prohibition against conflicts of interest, we must analyse the nature of the conflict in order to characterize the violation. In some situations, the integrity of the judicial system is at stake, while in others the only interests in play are those of the parties (M. Proulx and D. Layton, Ethics and Canadian Criminal Law (2001), at p. 287). ... The reliability of the verdict takes on an importance that prevails over the private interests of the clients. Respect for the integrity of the criminal justice system derives, first and foremost, from the reliability of verdicts. The protection of the integrity of the justice system is necessarily a part of general public order. ...
12 However, not all conflicts of interest call higher interests into questions. Some cases involve merely private interests...
[32] In R. v. Parsons (1992), 72 C.C.C. (3d) 137 (Nfld. C.A.), at p. 145, the court stated that:
While the public has a definitive interest in the fairness of process designed to resolve private disputes, this concern is heightened in criminal matters as public confidence in the integrity and fairness of the criminal justice system is indispensable to modern society. Therefore, the ultimate fairness of a public prosecution cannot be left entirely to private compact of the individuals immediately concerned.
[33] Conflicts of interest can arise “where there is a breach of a duty of confidentiality; where there is a breach of the duty of loyalty; where there is a risk of trial unfairness; where the integrity of the justice system is at risk; or where there is a public perception that the administration of justice would be brought into disrepute”: Clarke, at para. 11.
[34] In Speid, at p. 598, Dubin J.A., as he then was, stated:
In assessing the merits of a disqualification order, the court must balance the individual's right to select counsel of his own choice, public policy and the public interest in the administration of justice and basic principles of fundamental fairness. Such an order should not be made unless there are compelling reasons.
[35] As noted above, Mr. Campbell contends that the question of whether Mr. MacDonald is likely to find himself in a position of conflict in this case is one that ought to be left to counsel’s wisdom and experience to determine, guided by the Rules of Professional Conduct. The approach suggested by Mr. Campbell is similar to that taken in R. v. Bilmez, where the trial judge simply took defence counsel’s assurance that there was no ethical problem. The Court of Appeal held that the trial judge ought not to have relied solely on defence counsel’s assessment, but, rather, ought to have conducted an inquiry into the matter: (1995), 101 C.C.C. (3d) 123 (Ont. C.A.). See also MacDonald, at p. 1263, where Sopinka J. was critical of what he referred to as the “trust me” approach on the part of counsel.
[36] The uncertainty of whether a conflict on the part of counsel will emerge in the course of a criminal trial was discussed in Wheat v. United States, 108 S. Ct. 1692 (1988), where, at p. 1699, Rehnquist C.J. stated:
Unfortunately for all concerned, a district court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly. The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials.
[37] Likewise, in R. v. Widdifield (1995), 25 O.R. (3d) 161 (C.A.), at p. 175, Doherty J.A. stated:
Where the issue is raised at trial, the court must be concerned with actual conflicts of interests 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 any realistic risk of a conflict of interest they must direct that counsel not act for one or perhaps either accused.
[38] Although in Widdifield Doherty J.A. was dealing with the propriety of one counsel proposing to represent two co-accused, in R. v. McCarroll, [2005] O.J. No. 961 (S.C.J.), at paragraph 9, citing R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R 631; 168 C.C.C. (3d) 321, at p.339, McIsaac J. held that “[t]his test has been specifically approved by the Supreme Court of Canada. In my opinion, it is not limited to cases of joint representation, but applies to all cases of alleged conflicts of interest by trial counsel.” (Citations omitted.) I agree.
[39] Having said that, the speculation of which Doherty J.A. spoke must be based on an evidentiary foundation that is capable of supporting a reasonable conclusion that the difficulties foreseen are more than mere possibilities. As Fraser J. put it in R. v. Marr, [1992] B.C.J. No. 1782 (S.C.), ‘[t]he extraordinary and drastic remedy of depriving an accused of the services of counsel of choice must be based on apprehension of a "real mischief".’ Fraser J. went on to say:
The courts are not assuming supervisory powers vested in the provincial law societies. The court's intervention is only warranted when difficulties perceived because of the participation of counsel are seen to raise a real hazard that a just result in civil or criminal litigation may be threatened or that the litigation may founder. It is a function of the Court's control over the proceedings.
[40] A merely theoretical risk is not sufficient to warrant disqualification of counsel; rather, the party seeking to disqualify opposing counsel must establish “the possibility of real mischief”: MacDonald, at pp. 1246, 1253, and 1259.
[41] In Parsons, upholding the trial judge’s refusal to disqualify defence counsel for an alleged conflict of interest by virtue of his earlier representation of a Crown witness, speaking for the court, Marshall J.A. said, at p. 145:
With respect the Crown’s position appears to be founded upon conjecture and assumption - both as to the presence of a conflict and to a new trial resulting from accused's counsel continuing to act in the matter. As already indicated, while conflict of interest concerns arise from possibilities, there has to be some reasonable basis upon which the possibility is constructed. [Emphasis added.]
[42] In R. v. G.K., [1994] S.J. No. 612 (Q.B.), at paragraph 8, Gerein J. stated, “[i]f a Court is to intervene [by disqualifying counsel] there must be some jurisprudential reason for doing so and not simply an abundance of caution.”
[43] In R. v. Bogiatzis (2002), 162 C.C.C. (3d) 374 (Ont. S.C.J.), Nordheimer J. stated, at paras. 21-22:
It is clear that a person cannot be both counsel and a witness in the same proceeding. This principle is established in cases such as R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.) at p. 117, where Martin J.A. quoted the principle from Halsbury’s Laws of England as follows:
The rule is stated in 3 Hals., 4th ed., p. 653, para. 1187, as follows:
"A barrister should not act as counsel and witness in the same case; and he should not accept a retainer in a case in which he has reason to believe he will be a witness, and if, while engaged in a case, it becomes apparent that he is a witness on a material question of fact, he ought not to continue to appear as counsel if he can retire without jeopardizing his client’s interests, but if he continues he is not debarred from going into the witness box and being cross-examined."
The principle is also established by the Rules of Professional Conduct of the Law Society of Upper Canada. Rule 4.02(2) states:
Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not testify before the tribunal unless permitted to do so by the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted.
[44] At paragraph 14 of Bogiatzis, Nordheimer J. discussed the quantum of proof required for an order of disqualification to flow:
Mr. Justice Doherty in R. v. W. (W.), supra, said that what must be established in order to justify a disqualification order is the 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. This requirement is put as follows in Proulx and Layton, Ethics and Canadian Criminal Law (1st edition, 2001) at p. 295:
The qualifying words "any realistic" would seem to mean that there must be some evidentiary foundation from which risk can reasonably be said to flow. Mere conjecture and bare possibility is simply not sufficient to require the removal of counsel.
[45] The cases involving removal on the basis advanced by the applicant in this case, namely, the prospect of counsel becoming a witness in the proceedings, are relatively few in number.
[46] In R. v. Whittington, [2009] O.J. No. 3313 (S.C.J.), the accused was charged with having offered an indignity to a human body by the manner in which she disposed of her daughter’s body. The Crown argued that there was a potential that the lawyer would become a witness because he had conducted an investigation into the missing daughter, had handled various of the accused’s possessions that might become evidence in the trial, had searched the accused’s trunk and taken photographs of the inside of her fridge. Despite that involvement on the part of the lawyer, Leitch J. refused the Crown’s application to have counsel removed.
[47] In R. v. Karmis, counsel had witnessed the incident giving rise to the charge of assault against his client. The trial judge allowed the Crown’s application to disqualify defence counsel on the basis of the Crown’s contention that, if a witness were to give evidence contrary to counsel’s personal knowledge, counsel would be required to become a witness at trial. On a combined summary conviction appeal and application for certiorari, Macleod J. held that the Crown’s position was speculative and the provincial court judge had erred by allowing the application: 2008 ABQB 525; 96 Alta. L.R. (4th) 314. At paragraph 36, he stated:
There are any number of ways by which counsel may come into information that conflicts with testimony given on the witness stand at trial. The risk arises any time counsel interviews a witness prior to trial. Generally speaking, competent counsel know how to deal with these situations without causing a mistrial. The mere fact that counsel for the accused has direct knowledge that might possibly become relevant in the course of the trial is not sufficient to warrant presumptively disqualifying counsel.
[48] Similarly, in R. v. Pyszniak, 2000 ABPC 199; 89 Alta. L.R. (3d) 322, where the wife of defence counsel’s law partner found a weapon allegedly used in the shooting giving rise to the charge before the court, Lefever Prov. Ct. J. refused the Crown’s application to disqualify defence counsel. He did, however, order that the witness be cross-examined by independent counsel.
[49] On the other hand, in R. v. Marshall, 2002 SKQB 107; 216 Sask. R. 152, Gerein C.J.Q.B. disqualified defence counsel where counsel had been a witness to the events that led to the laying of the charges before the court.
[50] In R. v. Zarelli, 2004 BCPC 378; [2004] B.C.J. No. 2154 (Prov. Ct.), where the accused was charged with Obstruct Justice, his counsel was disqualified from acting at trial because he had been present for his client giving the statements that were alleged to be the actus reus of the charge.
[51] In R. v. Buhr, 2009 MBPC 22; 239 Man. R. (2d) 104 (Prov. Ct.), where the accused was charged with refusing to provide a breathalyzer sample, defence counsel was disqualified on the basis that the defence would turn on advice counsel had offered when he spoke to the accused immediately prior to his refusal to provide the sample.
Application of the Principles to the Case at Bar
(a) Interaction Between Counsel and the Proposed Witness Catalano
[52] Defence counsel have indicated that they may seek to adduce the evidence of Catalano to support the theory that it was likely Harley, not the accused, who killed the deceased.[^3] The question I must consider is whether that creates “a realistic risk” that Mr. MacDonald will need to be called as a witness.
[53] Mr. Campbell argues that the assertions of the Crown amount to mere conjecture and are not a proper basis upon which the court should exercise its discretion to override such a fundamental choice on the part of an accused person. While I agree that the court is being asked to look into the future to determine what may develop, I do not agree with Mr. Campbell’s assertion that the Crown’s prognostications are without substance.
[54] It is trite to observe, and the Crown does not dispute, that there is no property in a witness: R. v. Bilotta (1999), 139 C.C.C. (3d) 183 (Ont. C.J.), at p. 186. So, while it was not inappropriate for defence counsel to speak to Catalano, the Crown contends that Mr. MacDonald may become a witness because he interviewed Catalano and appears to have done so alone. At paragraph 41 of their factum, Crown counsel advance the following argument:
Should Mr. Catalano be called by the defence as a witness ... the Crown will wish to explore any inconsistencies between his evidence at trial and his prior statements to Mr. MacDonald. Because the prior statements were not recorded or witnessed by a third party, they can only be proven though Mr. MacDonald. There is no way to test Mr. Catalano’s evidence without hearing from Mr. MacDonald.
[55] While there is a marked inconsistency between what Catalano is purported to have said to Mr. MacDonald and what he is documented as having said to the police, there is no documented inconsistency that I am aware of between any of the various things Catalano is purported to have said to Mr. MacDonald. In oral argument, Crown counsel gave several examples of inconsistencies that might arise when Catalano gives evidence, but, without the benefit of knowing what Catalano earlier said to Mr. MacDonald, the Crown will have no way of knowing whether what Catalano says in evidence is inconsistent with what he has earlier said or not.
[56] For his part, Mr. Campbell argues that what Catalano said to Mr. MacDonald is protected by litigation privilege in any event. While I do not necessarily agree, the question is moot because, unlike a civil case, obviously in a criminal case the Crown has no right to discover the defence and, thus, there is no right in the Crown to call Mr. MacDonald in order to learn what Catalano said to him in order to then compare it to what he said in his evidence. That is so because to call Mr. MacDonald as a Crown witness would mean that he would have to be removed as counsel for the accused, but to warrant removal “[t]he party seeking to call opposing counsel must lay an evidentiary foundation for showing that the counsel’s evidence is likely to be relevant and necessary”: R. v. Elliott (2003), 181 C.C.C. (3d) 118 (Ont. C.A.), at para. 114; see also R. v. Sungalia, [1992] O.J. No. 3718 (Gen. Div.), at para. 3. I find that Crown counsel’s supposition that there may be inconsistencies between what Catalano has said to Mr. MacDonald on one or more occasions when they have spoken is highly conjectural and, as such, is not sufficiently compelling to warrant granting the relief sought on that basis.
[57] As for the Crown’s suggestion that Mr. MacDonald is in a conflict because he interviewed Catalano alone, in R. v. Bevan, 2009 ONCJ 487, [2009] O.J. No. 4311, at paragraphs 16 ff., Agro J. found that defence counsel had a potential conflict because counsel had taken the affidavit of a witness in that case with no third party present:
16 It is well settled that there is no property in witnesses. Any counsel, Crown or defence may interview a witness for the purpose of obtaining a "will state" from that witness. To disqualify counsel for a conflict of interest because that counsel has interviewed a prospective witness and may then himself then be a witness would bring the administration of justice to a swift halt. No counsel would ever be able to properly prepare for trial.
17 Prudent and experienced counsel will not, however, engage in interviews with an opposing witness and in particular a complainant, without having a third party witness present. Mr. Puskas did not do so when he prepared the recantation affidavit for Ms. Dunstall. [Emphasis added.]
23 I have grave concern that in the case at bar, based on the skeletal stipulated facts, that the potential for conflict is real and that counsel will be unable to provide the effective assistance required of his oath of office. Should we proceed to trial on these charges with Mr. Puskas as solicitor for Mr. Bevan, it would not be long before the necessity of a mistrial would arise. The record discloses nothing that would give any assurance to the contrary.
[58] Similarly, in this case, while the mere fact that Mr. MacDonald interviewed the witness is not problematic, the fact that it appears he may have done so alone is troubling. As noted above, at the very least, it would seem that the discussion with Catalano that led to Mr. MacDonald finding the crutch was not in the presence of a third party because the point is made in the will-say that Catalano repeated what he said to Mr. MacDonald later the same day to a private investigator. Other conversations may also have taken place between Mr. MacDonald and Catalano without a third party present.
[59] Notwithstanding the holding in Bevan, I would consider Crown counsel’s concerns to be premature at this point were it not for the fact that since Catalano first spoke to Mr. MacDonald he has told the police, under oath, something very different from what he is purported to have said to Mr. MacDonald, at least according to the will-say that was disclosed by the defence in support of its alternate suspect application.
[60] Logic dictates that Catalano must now be expected to reverse himself yet again and say something akin to what was revealed in the will-say statement; otherwise there would be, quite simply, no point in calling him as a defence witness. Indeed, Mr. Campbell acknowledged that logic in oral argument, yet he went on to indicate nevertheless that it is anticipated that Catalano will be called as a witness for the defence.
[61] In R. v. Stein, [1996] O.J. No. 5482 (Prov. Ct.), the Crown applied to disqualify defence counsel on the basis that it wished to call counsel as a Crown witness. Finnestad J. dismissed the application for the reason, inter alia, that the Crown had no idea at the time of the application what the proposed witness would say.
[62] In this case, in sharp contrast to the situation in Stein, Catalano has given two different versions of the events in question. His second account, the statement to the police, is profoundly at odds with what he is alleged to have earlier said to Mr. MacDonald, such that, if he is called, defence counsel will have to attempt by some means to “rehabilitate” Catalano, in order that, at the end of the day, the jury will be inclined to entertain at least a reasonable doubt that what he told Mr. MacDonald might be true. To accomplish that, defence counsel will be obliged to challenge the account Catalano gave to the police in order to later ask the jury to rely on what Catalano said to counsel and discount what he said to the police.
[63] In his letter of May 23, 2012, Mr. Campbell stated:
The defence will not be calling Mr. MacDonald as a witness. For the Crown to call him it would have to meet the high standard set by the authorities which govern one party attempting to compel counsel of an opposing party to give evidence.
Mr. Campbell made a similar submission during oral argument. The question is not, however, whether defence counsel intends to call Mr. MacDonald as a witness. Obviously, it does not presently intend to call do so, for if it did, then, just as obviously, he could not remain on the record. Rather, the question is: depending on how things develop, might it become necessary to call him as a witness at trial?
[64] As earlier noted, Catalano will not be called unless the defence thinks that he is going to give a version of events more or less consistent with what he has apparently earlier said to Mr. MacDonald. At the risk of repetition, were that not the case, there would be no point to calling him. However, since Catalano gave a statement under oath to the police that is contrary in substance to what it is purported he said to Mr. MacDonald, it is entirely foreseeable that at some point, whether in examination-in-chief or cross-examination, Catalano may well depart from the account defence counsel appears to anticipate. In this context, it cannot be forgotten that if, in his evidence at trial, Catalano recants his earlier sworn statement to the police he might well be placing himself in jeopardy of a charge of perjury or giving contradictory evidence. That said, in my experience, witnesses in that situation often tend to lay the blame for inconsistencies in their various accounts of events at the feet of others. If that were to happen, then, depending on what Catalano were to say about his conversations with Mr. MacDonald, counsel might be duty bound to call Mr. MacDonald to give evidence as to what Catalano said to him and/or what he said to Catalano.
[65] In a similar vein, Mr. Campbell also suggested in oral argument that Catalano’s statement to the police will not be a problem because defence counsel does not have to lead the fact that Catalano gave a different version of events to the police. With respect, the argument is idle. At the risk of stating the obvious, it matters not whether defence counsel raises Catalano’s statement to the police, because, quite obviously, if Catalano is called and gives an account similar to the will-say, the Crown will cross-examine him on his prior inconsistent statement to the police. So, whether defence counsel attempts to take the sting out of the Crown’s cross-examination by addressing Catalano’s statement to the police in examination-in-chief, as is often done, for example, with an accused’s criminal record, or whether he waits to deal with the issue in re-examination, the point is that either way counsel will have to deal with the prior inconsistent statement at some point in time if the defence is to later argue to the jury that it should rely on Catalano’s statement to Mr. MacDonald and ignore his statement to the police.
[66] That will bring into sharp focus the conversations that Mr. MacDonald had with Catalano that led to the creation of the original will-say. It will also call into question the nature of any conversations Mr. MacDonald may have had with Catalano after Catalano spoke to the police that caused Catalano to recant his sworn statement to the police and revert to some version of events akin to what he originally told counsel. Either situation creates a realistic prospect that a witness might be required to give evidence respecting to those conversations.
[67] Even if that were so, however, there is still no difficulty, Mr. Campbell contends, because all the court need do is to infer that there must have been a third party present for the conversations between Catalano and Mr. MacDonald. I should draw that inference, Mr. Campbell says, because I can safely assume that Mr. MacDonald would have been sensible enough not to have put himself in a position that might later result in a conflict of interest by virtue of him becoming a witness. However, had some third party been present for these conversations with Catalano, it would have been a simple matter for defence counsel, faced with this application, to adduce evidence on that issue. In the peculiar circumstances of this case, I am not prepared to draw the inference Mr. Campbell urges and, in the absence of that inference, the prospect looms large that Mr. MacDonald might have to give evidence in the same way as was predicted in Bevan and McCarroll.
[68] In McCarroll, McIsaac J. ordered that defence counsel be removed on the basis of a complaint by a Crown witness that the lawyer had threatened him in order to cause him to change his evidence. In disqualifying counsel, McIsaac J. said the following, at paragraph 12 ff.:
12 In the case at bar, the words of Mr. Leslie [defence counsel] as reported by Verschaeve cannot fairly be described as benevolent nor can they be interpreted as benign. They were corrupt because they contained a thinly veiled threat to his personal safety. The context of the witness already being in segregation for his protection cannot be ignored. Judicial notice has long ago educated me that he was already viewed as a "rat" and there was a price to pay for co-operating with the police. Based upon these considerations, I am satisfied that Mr. Leslie has an actual conflict of interest because he is unable to dedicate himself completely to the interest of his client. There is patent tension to consciously or unconsciously defend himself. That concern is not speculative, it is concrete and would pervade the entire proceedings. It crystallized when the election was made to not call Mr. Leslie as a witness to challenge Verschaeve. The failure to call material evidence which was uniquely available to Mr. Leslie causes me to draw an adverse inference against him: see Vieczorek et al v. Piersma et al (1987), 36 D.L.R. (4th) 136 (Ont. C.A.) at p.141-2. This determination is fortified by the fact that he is an officer of the court who would be expected to assist in the search for the truth in relation to an issue that is fundamental to the administration of justice.
13 Turning to potential conflicts of interest, I am satisfied that there is a good chance that Mr. Leslie will be required to testify in the trial of his client. Since Verschaeve claims to be an eyewitness to the events that led to the death of Mr. Prebtani and suggests that the accused wielded the baseball bat causing it, it can be expected that the defence will mount a major attack on his general and specific credibility. If what Verschaeve says about Mr. Leslie's attendance at CNCC or the substance of the conversation is false, this is not a collateral matter because it displays a corrupt attempt to, in effect"torpedo" the defence by falsely implicating the accused's lawyer in an obstruction of justice. Such acts of corruption are not caught by the collateral fact rule: see R. v. Babinski (1999), 135 C.C.C. (3d) 1 (Ont. C.A.) at p.22. In that case, there was evidence that a Crown witness had gone to extraordinary lengths to falsely explain a post-trial recantation of his testimony, including attempts to implicate the appellant in that exercise. Those efforts tended to support a claim of animus against the appellant and constituted an exception to the rule. Mr. Leslie did not offer any evidence to refute the suggestion that he attended on Verschaeve at CNCC on his own. In the result, he would be the only person who could testify as to the possible corruption on the part of this witness.
14 One can easily and rationally speculate as to another scenario. Although the Crown may not be entitled to lead the evidence of Verschaeve concerning his alleged contact with Mr. Leslie at CNCC as part of the narrative of the prosecution case, it may become exceptionally admissible in the following circumstances. Smith admits that he provided a statement to the defence which was inconsistent with the concurrent affidavit he provided at the time of his plea to manslaughter. Assuming he now testifies in a manner along the lines of that affidavit, he will likely be confronted with the statement that he now alleges is false. In order to minimize the impact of that previous inconsistent statement, the Crown may be permitted to attempt to establish a "pattern" of intimidation of Crown witnesses by leading the evidence of the alleged contact between Verschaeve and Mr. Leslie at CNCC. Again, Mr. Leslie likely becomes a witness on that aspect.
15 In any event, I find the circumstances of this alleged contact to be a "time bomb" given the importance of Verschaeve to the Crown's case and what Mr. Leslie is alleged by this witness to have said to get him to "sign on" to the defence theory of Smith's wielding the bat during the attack on the deceased. Accordingly, I view the involvement of defence counsel as a witness in this case as probable. In light of those circumstances, it is trite that he cannot remain as counsel for the accused and must be removed.
[69] Admittedly, this is not as clear a case as McCarroll, because Catalano has not, thus far at least, accused Mr. MacDonald of any impropriety. That said, Catalano has reversed himself once in his statement to the police. If he is to be called as a defence witness, as counsel indicates he may very well be, then it is only reasonable to expect that he will reverse himself a second time, and revert to the same version he earlier gave to Mr. MacDonald, or something closely akin to it. That alone may call into question his dealings with Mr. MacDonald and necessitate Mr. MacDonald taking the witness box. Furthermore, because, as earlier noted, Catalano’s statement to the police was under oath, there is a very real prospect that Catalano may reverse himself a third time while giving his testimony, when he is challenged, as he inevitably will be, about his statement to the police. That would make it even more likely that Mr. MacDonald’s dealings with the witness will come into question, such that Mr. MacDonald may have to give evidence
(b) The “Finding” of the Crutch
[70] If defence counsel seek to adduce the evidence of Catalano to support the theory that it was likely Harley, not the accused, who killed the deceased, as Mr. Campbell has indicated it will, that will almost certainly involve adducing the crutch as a piece of circumstantial evidence supporting Catalano’s version of events and, in turn, the defence theory.
[71] Crown counsel contends that, in addition to Mr. MacDonald having made himself a potential witness vis-à-vis Catalano, Mr. MacDonald has also made himself a witness because he was the person who found the crutch. This being so, according to the Crown, the defence “will have to call both Mr. Catalano and Mr. MacDonald as witnesses”: Applicant’s Factum, at para. 36.
[72] On the other hand, Mr. Campbell argues that the mere fact that Mr. MacDonald was the first person to see the crutch lying in the walkway does not mean that Mr. MacDonald must be a witness because, quite properly, Mr. MacDonald left the crutch in situ and summoned others to observe and, in turn, seize it. Mr. Campbell argues that this is no different than the Crown being at liberty to call as a witness someone other than the first person to actually discover an artifact that is later offered into evidence in a criminal trial.
[73] Speaking generally, I agree that counsel seeking to adduce a piece of physical evidence is not necessarily required to call the very first person to lay eyes on the object that is seized and later offered into evidence. Therefore, I agree that Mr. MacDonald has not made himself a witness in the way the Crown contends simply by virtue of the fact that he was the first person to see the crutch. Because there are others who can attest to seeing the crutch in situ, this does not meet the test enunciated in Elliot and Sungalia for the removal of counsel for an opposing party.
[74] Crown counsel further argues, at paragraph 38 of its factum, that “[e]ven if the Respondent elects not to introduce the crutch as an exhibit, Mr. MacDonald’s first-hand participation in the discovery of the crutch is liable to impair his ability to act as an advocate ... [because] he may be constrained from asking certain questions of the Crown’s scene officers, or from making certain arguments before the jury about their failure to locate any crutches at the time of the incident.” With respect, this argument makes little sense to me. If the defence were to decide not to introduce the crutch as part of its case, I fail to see why it would be necessary to ask the officers who attended the scene about the crutch or make any argument to the jury about their failure to find it.
[75] To my mind, if the defence decides to call Catalano, which Mr. Campbell insists it may well do, then it only makes sense to adduce the evidence of the crutch. That said, to state the obvious, the crutch will have to be adduced into evidence by some witness who saw it in the walkway at 2253. Leaving aside Mr. MacDonald, the only viable alternatives are the private investigator who attended 2253 on April 16, 2012, or Det. Washington who also attended there that day. The point is that, whichever witness is called, the cross-examination of either will reveal that it was at the behest of Mr. MacDonald that both of them attended the scene and saw the crutch in situ. Thus, by virtue of the Crown’s cross-examination of the witness through whom the crutch is introduced, the jury will come to know that Mr. MacDonald was involved in finding the crutch. There is nothing to prevent the Crown from cross-examining on this point. Indeed, in order for the Crown to later take the position that the crutch had been planted it would be required, in my view, to cross-examine on this issue: Browne v. Dunn (1893), 6 R. 67 (H.L.).
[76] Based, inter alia, on the following facts:
(i) Catalano allegedly told Mr. MacDonald that he had seen Harley assaulting the deceased in the same alley in which his body was found;
(ii) according to what Catalano is alleged to have said to Mr. MacDonald, that assault allegedly took place the night before the deceased’s body was found;
(iii) Catalano allegedly told Mr. MacDonald that, in the course of assaulting the deceased, Harley threw the deceased’s crutches onto the roof of a nearby building;
(iv) the police searched the alley thoroughly after the body was found, albeit their search did not involve the roof upon which, according to Mr. MacDonald’s source, the crutch was to be found;
(v) Mr. MacDonald had been to the alley on numerous prior occasions looking for evidence, but had found no crutch; and
(vi) although it was not discovered until more than two years after the murder, the crutch Mr. MacDonald found bore no signs of weathering, such as one might reasonably expect had it been exposed to the elements for that length of time;
the Crown has indicated, in both oral and written submissions, that if the crutch were to be adduced by the defence, it would likely argue (a) that the crutch was planted in order to provide evidence to support the alternate suspect defence and (b) that, once the crutch had been planted, Mr. MacDonald was then alerted so that he would attend the scene and find it.[^4] In my opinion, the aforementioned facts raise a very realistic prospect that somebody may have done precisely that.
[77] Having said that, depending on how the evidence unfolded, I can foresee[^5] a realistic possibility that it might become necessary to call Mr. MacDonald as a witness for the defence. If for no other reason, it might be necessary to dispel the notion that Mr. MacDonald had anything to do with the crutch coming to be at 2253.
(c) Residual Concerns
[78] The concern in this case does not end with the question of whether or not Mr. MacDonald is apt to become a witness.
[79] In United States v. Locascio, 6 F.3d 924 (1993), at p. 933, in upholding a disqualification order, Altimari J. stated:
Even if the attorney is not called, however, he can still be disqualified, since his performance as an advocate can be impaired by his relationship to the events in question. For example, the attorney may be constrained from making certain arguments on behalf of his client because of his own involvement, or may be tempted to minimize his own conduct at the expense of his client. Moreover, his role as advocate may give his client an unfair advantage, because the attorney can subtly impart to the jury his first-hand knowledge of the events without having to swear an oath or be subject to cross examination.
Those observations were adopted in Bogiatzis. Like Nordheimer J., I, too, concur with the remarks of Mr. Justice Altimari.
[80] Leaving aside the problems discussed above concerning the possibility of Mr. MacDonald becoming a witness, a further problem arises, not when the evidence is adduced, but when it comes time to argue the significance, if any, of Catalano’s evidence and the evidence surrounding the finding of the crutch. Having raised the alternate suspect defence, the defence would be required to argue to the jury that it should accept Catalano’s evidence or, at the least, entertain a reasonable doubt based on his account that Harley may have killed Rucinski. By extension, the defence would have to argue that the jury should not conclude that the crutch was planted, but, rather, that it is a legitimate piece of real evidence that circumstantially supports the theory of the defence.
[81] Even without Mr. MacDonald having taken the witness box, the jury will know nonetheless that:
(i) it was Mr. MacDonald who “discovered” the existence of the witness Catalano in the first place;
(ii) it was Mr. MacDonald who took statements from Catalano resulting in the will-say;
(iii) Mr. MacDonald may have spoken to Catalano after Catalano spoke to the police, as a result of which conversation Catalano came to revert to something akin his original version of events; and
(iv) Mr. MacDonald was the first person known to have laid eyes on the crutch where it lay at 2253.
What, then, is the upshot of those facts?
[82] On the one hand, to my mind, this is exactly the situation concerning which, in Locascio, Altimiri J. cautioned that “his role as advocate may give his client an unfair advantage, because the attorney can subtly impart to the jury his first-hand knowledge of the events without having to swear an oath or be subject to cross examination.” Knowing Mr. MacDonald’s connection to, and dealings with, Catalano and his involvement with finding the piece of physical evidence said to support Catalano’s account, the jury might be more inclined to accept the suggestion that Catalano is telling the truth when he says that he saw Harley assaulting Rucinski and more likely to accept that the crutch was not planted, but, rather, that it is a genuine artifact of the homicide. That would be so because they will know that Mr. MacDonald has firsthand knowledge of both the witness’ statements and the finding of the crutch and, with the benefit of that knowledge (none of which will have been tested if he does not testify), defence counsel is inviting them, presumably in good faith, to conclude that Catalano was telling the truth when he said that he saw Harley assault Rucinski and, in turn, throw Rucinski’s crutches on the nearby roof. To my mind, prophylactic measures, such as having Mr. Campbell examine Catalano or give the closing argument to the jury, are incapable of offsetting this advantage.
[83] On the other hand, the fact that Catalano told the police under oath that he saw Harley assault Rucinski two weeks before Rucinski was killed and then later reverted to a version of events consistent with what he earlier told Mr. MacDonald, taken together with the fact that, more than two years after the murder, a crutch was found that the defence alleges belonged to Rucinski, thereby circumstantially supporting Catalano’s account, the jury might well be suspicious that Catalano was not telling the truth to Mr. MacDonald and, further, that someone planted the crutch to support Catalano’s false account. Worse yet, if they were to entertain such suspicions, then, in light of the following facts:
(i) that Mr. MacDonald has had numerous conversations with Catalano, both before and, perhaps, after he spoke to the police;
(ii) that Mr. MacDonald was the first person known to have seen the crutch at 2253;
(iii) that Mr. MacDonald had been to the alley numerous other times looking for evidence, but had never before found anything of evidentiary value; and
(iv) that crutch shows no sign of having been exposed to the elements for two years;
the jury might suspect that Mr. MacDonald convinced Catalano to give an account that was untrue (and, later, to revert to it again, notwithstanding he had told the police something different under oath) and/or that he had some involvement in planting the crutch. To say that such suspicions could prejudice the accused is to state the self-evident.
RESULT
[84] In summary, the combination of (i) Mr. MacDonald having potentially made himself a witness respecting his conversations with Catalano on one or more occasions before, and perhaps after, Catalano spoke to the police and (ii) Mr. MacDonald’s direct involvement in locating the crutch, make it entirely foreseeable that, however unwillingly, he could become a witness in the trial. In the alternative, even if Mr. MacDonald were not required to give evidence, in the circumstances of this case, if he were to remain on the record, the repute of the administration of justice could suffer, in the ways I have outlined above.
[85] In the result on this application, although I am reluctant to interfere with the accused’s right to choose his counsel, I am of the opinion that there are compelling reasons to remove Mr. MacDonald as counsel of record.
[86] As I indicated on December 21, 2012, when I ordered his removal, the order does not prevent Mr. MacDonald from appearing as many times as may be necessary to ensure that a new date for trial is set as soon as reasonably possible.
II. APPLICATION TO ADJOURN THE TRIAL
[87] In the course of oral argument, the Crown conceded that, if Mr. MacDonald were to be removed as counsel, fairness would dictate that an adjournment be granted on that basis alone. That having occurred, the grounds relied upon by the defence for adjournment became largely moot. I say “largely” because, although I granted the request for adjournment solely on the basis of having made the disqualification order, the grounds are relevant to the accused’s ancillary application for bail in the following way.
[88] The trial of this matter was scheduled for January 14, 2013. Defence counsel sought to adjourn the trial on the basis of alleged late disclosure. The disclosure consisted of the report of one Detective Constable Albrecht concerning apparent blood spatter found in the accused’s home, which the Crown alleges was where the murder occurred. The defence contends that late disclosure of the report has impeded its preparation for trial and, in particular, its ability to retain its own expert to challenge the Crown’s proposed blood spatter evidence. Mr. Campbell argued that this was relevant to the bail application in that it was unfair to keep the accused in custody pending a trial that, if the adjournment were granted, would be further delayed, when that delay was the fault of the Crown.
[89] Mr. Campbell argued that late disclosure by the Crown left insufficient time for the following to be done:
(i) to request approval from Legal Aid Ontario;
(ii) to retain an expert once approval had been granted;
(iii) to then have the expert examine and report back on the Crown’s disclosure; and
(iv) to prepare for trial with the benefit of the expert’s advice.
I reject this argument for the following reasons.
[90] While it is true that the report in question was only provided to the defence in November 2012, the report was in large measure, if not entirely, merely a formal compilation of material already disclosed to the defence long ago in the form of copies of Albrecht’s notes and related photographs. I am satisfied that the Crown was simply reducing the substance of earlier extensive disclosure into a formal report so as to comply with the requirements of s. 657.3(3)(b)(i) of the Criminal Code, which requires that “within a reasonable period before trial” the anticipated evidence of an expert be disclosed in the form of a report.
[91] Furthermore, Mr. Campbell contended that, as of the point at which the adjournment application was brought, the defence lacked sufficient time to seek the required approval from Legal Aid and, assuming approval was forthcoming, to then act on that approval in time to be ready for trial. The difficulty for the defence in that behalf was compounded, Mr. Campbell asserted, by the fact that, up to this point in time, not all the alleged blood spatter Albrecht examined has been linked to the deceased. Indeed, some of the spatter marks may not even be blood, much less human blood, Mr. Campbell pointed out. Therefore, in order for Albrecht’s evidence concerning spatter to have any probative value, it is first necessary, Mr. Campbell argued, for the Crown to have further evidence linking the supposed blood spatter to the deceased, Rucinski. Therefore, it would have been premature of the defence to seek the required approval to hire its own expert. I disagree.
[92] As noted above, the material the defence complains the Crown was late in disclosing has been in the hands of the defence for a lengthy period of time, albeit in another form. Thus, in my view, defence counsel could have reasonably anticipated the nature of the evidence to be forthcoming from Albrecht and could have sought provisional approval from Legal Aid to retain its own expert long before the present.
[93] Mr. Campbell also complains that certain swabs taken at the alleged crime scene were only recently sent to CFS and have not yet been examined and reported upon, much less disclosed. This has, he contends, further impeded his ability to retain and instruct an expert. In my view, this argument, too, is without merit.
[94] I am advised by Crown counsel that something on the order of 300 swabs were collected at the crime scene, of which only a few were actually sent to CFS. All the swabs originally sent to CFS have been examined, reported upon and the results disclosed by the Crown.
[95] Apparently, however, police investigators recently saw fit to send an additional six swabs of apparent blood spatter to CFS. No report on the analysis of those swabs has yet been forthcoming. While that is unfortunate, it must be recognized that a murder investigation does not necessarily stop just because an arrest has been made; rather, it is an ongoing enterprise, in the course of which it is not unusual for investigators to ask that additional forensic analysis be performed on specimens gathered at a crime scene. That said, measured against the wealth of blood spatter material already disclosed and the length of time the accused has had that disclosure, I am satisfied that the results from the testing of the six additional swabs would neither significantly alter the nature of Albrecht’s anticipated evidence nor impede in any significant way the work of a defence expert, if one were retained.
[96] Before leaving this issue, I also note that when dates were discussed to which the trial could be adjourned if the application were to be granted, Mr. Campbell indicated that he had only two windows of available time in the foreseeable future, namely, six weeks from the last week of February through to and including the first week of April, or, in the alternative, from the last week of April through to and including the first week of June. Thus, although he never expressly said so, I was left with the clear impression that Mr. Campbell was not available for the six-week period beginning January 14, 2013, during which, as of the time of the application, the trial was scheduled to take place.
RESULT
[97] In the result, based solely on the order disqualifying counsel, I granted the defence application for adjournment, vacated the trial date of January 14, 2013, and remanded the accused to appear before Nordheimer J. on January 7, 2013, to set a new date for trial.
III. APPLICATION FOR JUDICIAL INTERIM RELEASE
[98] The accused applied for bail based on a change of circumstance, namely, the delay of his trial resulting from an alleged failure on the part of the Crown to give timely disclosure.
[99] For the reasons discussed in connection with the adjournment application, I find no fault attributable to the Crown on the basis of late disclosure and I would not have granted the adjournment on the grounds relied upon by the defence. That said, the delay of the accused’s trial is not a change of circumstance in the sense in which that phrase is generally understood respecting revisiting the matter of bail.
[100] Furthermore, even if I thought that the delay of the trial was a change of circumstance, I would not have granted bail for the following reasons.
[101] To begin, Mr. Campbell acknowledged that the plan of supervision is not particularly strong. Indeed, as counsel for the Crown pointed out, it is not as strong even as the proposal put before McWatt J., who denied bail, in part, because she did not consider that the sureties proffered at that time had any particular ability to control and/or supervise the accused. In the current proposal, however, no surety is proffered. Instead, the accused would be released on his own recognizance, with a term of his bail being that he be amenable to the supervision of the Toronto Bail Program.
[102] In fairness to the accused, evidently he has been successfully supervised by the Bail Program in the past. The problem, however, is that the Bail Program generally monitors the persons it supervises by having them report in person to its offices. In this case, reporting in person would defeat, in some measure at least, the house arrest condition that is being proposed.
[103] On the other hand, telephone reporting (which it is not clear on the evidence before this court that the Bail Program even offers) would not suffice because, in this day and age, with the ubiquity of cellular telephones and the ability to utilize call forwarding technology, one cannot be certain of the geographical whereabouts of someone to whom one is talking on the telephone.
[104] The person with whom it is proposed the accused would live, Tara MacDonald, did not testify in person. Instead, her affidavit, a mere five paragraphs in length, was submitted. In it, she outlines that she has known the accused for approximately six years because he is a “lifelong friend” of her current boyfriend. She indicates that she has a spare room in her apartment that the accused is welcome to occupy.
[105] Ms. MacDonald indicates that she has faith that the accused would abide by whatever conditions the court might impose upon him, but gives no indication as to what it is, if anything, that gives her that confidence. In saying that, I am mindful of the fact that the affiant is approximately half the accused’s age and the accused has a history of breaching court orders. Respecting any breach by the accused of his release order, Ms. MacDonald goes on to say in her affidavit that, “as difficult as that may be”, she would immediately report any such breach to the authorities.
[106] In summary, Ms. MacDonald’s evidence is perfunctory and unpersuasive. Suffice it to say that, although I have no reason to think that she is other than well intentioned, Ms. MacDonald does not inspire confidence in terms of having either the ability to control the accused’s behaviour or a true desire to report any misbehaviour on his part.
[107] Turning to the accused, he has an appalling criminal record comprised of no fewer than 78 criminal convictions.
[108] Although the offences of which he has previously been convicted pale in comparison to the gravity of the charge he currently faces, nonetheless the accused’s record reveals numerous convictions for offences of violence, principally robberies, and threatening violence.
[109] The record also reveals no fewer than five convictions for failing to appear in court. Although the Crown says that it is not concerned on the primary ground, I do not share the prosecutor’s confidence that, if released, the accused would appear for his trial. I say that for the following reasons.
[110] First, the accused’s fail to appear convictions, although somewhat dated, speak for themselves. In relation to the total number of times he has been obliged to appear in court, the accused has failed to appear, by my calculus, at a rate exceeding ten per cent.
[111] Second, the charges upon which the accused has earlier failed to appear, while serious in their own right, were, in relative terms, minor in comparison to the charge he now faces. Accordingly, if he failed to appear on those earlier occasions, I find it entirely foreseeable that he might succumb to the temptation to abscond when the outcome of this trial might well be a sentence of imprisonment for life.
[112] Third, although his convictions have been mainly in Toronto, the accused’s record reveals that he has, in the past at least, led a somewhat itinerant lifestyle. He has been convicted of criminal offences as far east as Montreal and as far west as Vancouver. Therefore, if he were to abscond, apprehending him might well prove difficult.
[113] In summary on the primary ground, I am not satisfied that the accused would be likely to appear for his trial.
[114] As for the secondary ground, despite the gap of six years since his last conviction, the accused’s record causes me to conclude that if I were to release him there would be a substantial likelihood that he would commit a further criminal offence or interfere with the administration of justice. I say that for the following reasons.
[115] First, the dates of the various entries on the accused’s record makes it plain that he has committed many, if not the lion’s share, of the criminal offences of which he has been convicted while he was on judicial interim release for earlier offences.
[116] Second, as well as breaching recognizances and probation orders, the accused has numerous other entries on his record for offences going to the heart of the administration of justice, including four convictions for Obstruct Justice and one conviction for Obstruct Police.
[117] Third, the accused’s record reveals two convictions for the offence of breach of recognizance and four convictions for the offence of breach probation.
[118] In fairness to the accused, those convictions were accumulated over a period of 18 years and there is a gap of approximately six years between his last convictions and his arrest on this charge. Offsetting that, however, is the fact that the last two times he was before the court he was found guilty of the offence of breach of recognizance.
[119] Fourth, the accused has been twice recommitted to the penitentiary as a parole violator.
[120] In summary on the secondary ground, in the face of the foregoing criminal history, I do not flatter myself that the accused would be any more inclined to obey any order that I might impose, no matter how strict it might be, than he was to comply with the numerous other court orders he has previously breached.
[121] Turning lastly to the tertiary ground, except in compelling circumstances, I am not generally inclined to find that an accused is required to be detained on this ground. Having said that, given:
(i) the gravity of the charge the accused faces;
(ii) the apparent strength of the Crown’s case (which, while certainly not overwhelming, in my view is nowhere near as weak as defence counsel contends);
(iii) the mandatory life sentence the accused faces, if convicted;
(iv) the accused’s deplorable criminal history, including his all too apparent disdain for court orders;
(v) the ineffectual bail proposal being advanced; and
(vi) the fact that, as I understand it, his trial will only be delayed a couple of months;
to admit this accused to bail at this point would, to my mind, tend to diminish public confidence in the administration of justice.
Clark J.
Released: January 11, 2013
COURT FILE NO.: 11-10000752/0000
DATE: 20130111
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
STEPHPEN DOWNEY
Defendant
CROWN APPLICATION TO REMOVE DEFENCE COUNSEL
DEFENCE APPLICATION FOR ADJOURNMENT
DEFENCE APPLICATION FOR JUDICIAL INTERIM RELEASE
REASONS FOR DECISION
CLARK J.
Released: January 11, 2013
[^1]: In the Crown’s factum filed in support of its application to remove Mr. MacDonald, at paragraph 16, the applicant states that Mr. MacDonald told Det. Washington that “he had received certain information about the crutch, namely, that it was the victim’s crutch and that it had been ‘dumped’ at the scene, possibly on a roof.” In the next sentence, the factum goes on to state that “Mr. MacDonald declined to reveal the source of this information.” These statements were confirmed by Det. Washington’s viva voce evidence at this hearing. The respondent’s factum, on the other hand, states, at paragraph 1, that “[o]n April 16, 2012, Mr. Catalano disclosed to Mr. MacDonald that on the night preceding the discovery of the body, Rucinski’s crutches had been thrown onto the roof of a building in the alley where his body was located.” While Det. Washington’s evidence supports the Crown’s contention that Mr. MacDonald would not reveal the source of the information, there is no evidence before the court to support (i) the defence assertion that Catalano was the source of the information that caused Mr. MacDonald to go to the alley where he discovered the crutch or (ii) that Catalano spoke the same day with a private investigator employed by Mr. MacDonald. Although these propositions are stated in the will-say, and the will-say forms part of the Crown’s application record, the will-say is not in evidence for the truth of its contents. Therefore, there is no evidence before me of who Mr. MacDonald’s source was or whether the interview in which he gained this information was witnessed by a third person. Furthermore, even if the will-say is taken at face value, it does not indicate that a third party was present when Catalano first told Mr. MacDonald of the possible presence of the crutch on the roof. Rather, it says merely that later the same day Catalano repeated what he had earlier said to Mr. MacDonald to a private investigator.
[^2]: Campbell J. also recognized “a general public interest in the expedition of legal proceedings” which is defeated if the trial is delayed by the removal of counsel. I am not overly concerned on that account, however, for the reason that, although it was not cited as a ground for the adjournment application, as I will discuss more fully when I come to address the proposed adjournment, it appeared to me, from the discussion of dates to which the trial might be adjourned if the adjournment application were granted, that Mr. Campbell was not available on the date for which the trial was set, namely, January 14, 2013, in any event.
[^3]: It is difficult to say for certain what the defence theory will be. On the one hand, the seventh bullet point of the Catalano will-say indicates merely that Harley “hit” the deceased. On the other hand, the ninth bullet point of the same statement seems to suggest, albeit somewhat obliquely, that Harley actually killed the deceased. The notion that Catalano actually saw Harley kill Rucinski is at odds, of course, with what Catalano said to the police.
[^4]: I wish to stress two points in this regard: (a) the Crown specified in both oral and written argument that it was not alleging that Mr. MacDonald was involved in any way in trying to plant false evidence and (b) nothing in these reasons should be taken as implying that.
[^5]: On the one hand this may seem an unlikely scenario if, indeed, Catalano were to say that he saw Harley throw Rucinski’s crutches onto a nearby roof. On the other hand, at the risk of repetition, I note again that, apart from the will-say, which is not evidence of the truth of its contents, there is no actual evidence before me as to who informed Mr. MacDonald of the presence of the crutch on the roof.