PETERBOROUGH COURT FILE NO.: CR-12-0495
DATE: 20130617
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER DONALD MCCALL
Respondent
Paula Thompson, for the Applicant Crown
Jeffrey Ayotte, for the Respondent’s Counsel David McFadden
HEARD: June 10, 2013
JUDGMENT
GUNSOLUS, J.
Statement of the Case
[1] This is an application by the Crown for an order to have defence counsel removed from the record. It is based on an alleged conflict of interest arising from an allegation that counsel for the accused gave legal advice to a material Crown witness, about the witness’ involvement in the case.
Summary of the Facts
[2] On the day that this matter was to be heard, the matter was stood down while counsel for the applicant and counsel for the respondent’s counsel attempted to work out an “Agreed Statement of Facts”. The following are the facts according to that Agreed Statement of Facts.
[3] The Respondent stands charged that he committed the offences of Assault x4, Assault Causing Bodily Harm; Assault with a Weapon; Weapons Dangerous; Threaten Death; Choking; Human Trafficking; Procuring Prostitution; Procuring by Exercise of Control; and Living on the Avails; against the complainant, Jessica Stammis, his former girlfriend/common-law partner.
[4] In the days leading up to August 27th, 2012 (the first date scheduled for the Respondent’s preliminary inquiry) the Respondent is alleged to have endeavoured to “walk away” from the above charges and to have attempted to ensure the complainant’s non-attendance at court by enlisting the services of the complainant’s father (Robert Schafrick). It is alleged that Mr. Schafrick was directed by the Respondent to persuade his daughter, Jessica Stammis to “lessen or drop the charges” and to convince her not to testify against the Respondent in court.
[5] It is alleged that the Respondent paid for Robert Schafrick’s travel to and accommodation in the City of Peterborough in order that he might convince his daughter to lessen or drop the charges and persuade her not to testify in court. The Respondent is also alleged to have given the complainant’s father money over and above travel and accommodation costs and to have offered money to the complainant herself in exchange for her not testifying against him at his preliminary inquiry.
[6] Fred King, the respondent’s Power of Attorney, is alleged to have assisted in this payment of funds to Mr. Schafrick by sending money to Mr. Schafrick via a Western Union money transfer prior to Mr. Schafrick travelling to Peterborough, and then meeting Mr. Schafrick upon his arrival in Peterborough and directly giving him additional money to cover hotel and other expenses during his stay.
[7] Mr. King is a material witness in this matter with respect to the Respondent’s after-the-fact conduct and it is anticipated that he will be called by the Crown at Mr. McCall’s upcoming trial.
[8] It remains unknown whether the assistance that Mr. King provided with respect to the payment of funds to Mr. Schafrick constitutes his knowing participation in an effort to obstruct justice or whether his acts were done unwittingly as an innocent dupe.
[9] It is alleged that the Respondent’s counsel has given legal advice to Mr. King, a material witness and potential party to Mr. McCall’s alleged efforts to obstruct justice. Mr. King reports that Mr. McFadden’s advice to him has been that he should not provide a statement to police in this matter because he may say something that could incriminate him.
Evidence in Support of Grounds to Remove Counsel of Record
[10] On October 16th, 2012, the police endeavoured to speak to Mr. King about his involvement in this matter. Mr. King was approached by Detective Constables Pilling, Mundell and Eastwood. The officers identified themselves as police and Mr. King immediately said “Chris McCall. I know exactly what this is about.” The officers confirmed that they were in fact there to discuss Christopher McCall and Mr. King went on to say that he had been expecting them. Mr. King stated that he was Mr. McCall’s Power of Attorney and that he knew this would be trouble. He stated that he gave money to the father of Mr. McCall’s girlfriend, the girlfriend in relation to whom Mr. McCall was in jail [Jessica Stammis], so that the girlfriend’s father could come to Peterborough for the trial. Mr. King stated that he met up with him [Jessica Stammis’ father] and took him to the Holiday Inn to get a room for him. The Holiday Inn was full so he took him to Motel 6. Mr. King was then asked to attend the police station for a video statement and was cautioned by the officers. Mr. King advised that he would attend the station and asked if he should contact a lawyer. He was advised that he could contact a lawyer either at the station or prior to attending.
[11] Soon thereafter, Mr. King attended the police station where the officers attempted to interview him on video.
[12] During the course of Mr. King’s videotaped interview on October 16th, 2012, he was told that he may be charged with obstructing justice and advised of rights to counsel. When asked if he wished to contact a lawyer, Mr. King responded that he had already done so. He went on to explain that he had spoken to David McFadden’s secretary and that Mr. McFadden himself was “flying in at 3:30 today.”
[13] Mr. King then begins to converse with the officer and confirms that he is the Respondent’s Power of Attorney prior to stating, “I better see the lawyer.”
[14] Mr. King then says: “I am his Power of Attorney and everything is noted, bus as far as that goes, you know, I really don’t know what to say…Um, ‘til I see the lawyer and…and whatnot, so--. If we could just stop right there…”
[15] Detective Constable Pilling then confirms that Mr. King wishes to stop the interview and Mr. King responds, “Yeah, you know, like I said, he’ll be, the lawyer will be in this afternoon…” Mr. King then states, “No, I don't know, so, you know, I’ll let the lawyer…what, you know, you can talk to my lawyer and, uh, go from there, ‘cuz I don't know what kind of trouble Chris is in, so, you know.”
[16] On March 19th, 2013, Detective Constable Mundell followed up with Mr. Fred King. Detective Constable Mundell attended Mr. King’s home and asked Mr. King if he had been able to receive legal advice since the time that the police first questioned him. Mr. King advised that he did not get legal advice from Dave McFadden and that Mr. McFadden told him not to provide any statement to police because he may say something that could incriminate him.
[17] Detective Mundell asked Mr. King if he would now be willing to provide a statement and Mr. King responded that it looks like he is in the same position as before and he had better speak to a lawyer again.
[18] Detective Constable Mundell then contacted Mr. King from a landline at the Peterborough Police Station. During the ensuing telephone conversation Mr. King was again asked about having received legal advice. Mr. King stated that he got advice from Dave McFadden and that it was the same day police questioned him [October 16th, 2012] just hours after he was spoken to the police.
[19] Mr. King went on to say that he had located Mr. McFadden’s telephone number again that morning [March 18th, 2013] and that he was going to contact Mr. McFadden again in a few hours and then get back to Detective Constable Mundell with his position on providing a statement or not.
[20] On March 20th, 2013, Detective Constable Mundell again spoke with Mr. King who advised that he did not wish to speak to Detective Constable Mundell on the advice of his lawyer. Mr. King did not state which lawyer he had spoken with during this telephone conversation.
Affidavit of Mr. McFadden
[21] Mr. McFadden, counsel of record for Christopher McCall, filed an affidavit in response to this application. It forms part of the Agreed Statement of Facts. He indicated the following:
(1) He is the solicitor for the respondent and has had the opportunity to review the Crown’s factum relating to their application to remove him as counsel of record of Mr. McCall.
(2) He met with Mr. King in or about April 2012 in relation to his client, Christopher McCall, as Mr. King was his Power of Attorney.
(3) Mr. King has never been a client of Mr. McFadden’s, nor has he ever opened a file for him or been retained by him for any matter.
(4) Mr. McFadden spoke to his legal secretary, Carol Arnold, who confirmed that Mr. King called Mr. McFadden’s office on October 16, 2012, wishing to speak to him regarding an obstruct charge.
(5) Ms. Arnold told Mr. King that Mr. McFadden was away on vacation but returning sometime late afternoon that same day. Mr. Arnold confirmed that she indicated to Mr. King that he should not speak to the police until he speaks to a lawyer.
(6) On October 17, 2012, Mr. King called the Mr. McFadden’s office at 11:35 am and spoke to the secretary, Carol Arnold. He advised that there was a Detective at the door that wanted to see him. Ms. Arnold advised, once again, that before he spoke to the police, he should speak to Mr. McFadden first.
(7) Mr. McFadden spoke to Mr. King on October 17, 2012 when he indicated that the police were thinking of charging him with obstruct justice as it related to him being Christopher McCall’s Power of Attorney. At that time, Mr. McFadden indicated to him that he was acting for Christopher McCall and therefore could not represent Mr. King and he should get other counsel. Mr. McFadden also indicated to Mr. King that there was no need to speak to the police, especially before he spoke to a lawyer, because he could say something that could incriminate him. Mr. King did not provide Mr. McFadden with any confidential information.
(8) Mr. King called Mr. McFadden’s office again on March 19, 2013 and spoke to Carol Arnold. Mr. King advised that Dan Mundell had indicated to him that the Crown wants him arrested and wants him to give a statement. Mr. King once again called McFadden’s office on March 19th, 2013 and again spoke with Ms. Arnold about the police and he was advised to call and not make a statement if he felt he had to return the call.
(9) Mr. McFadden spoke to Mr. King on March 19, 2013, upon his return from court and advised Mr. King once again that he (Mr. McFadden) could not act for him and that he needed to get counsel. He further advised that if the Crown Attorney was going to have him charged with obstruct it would have already happened. He did not receive any confidential information from Mr. King.
(10) On April 11, 2013, Mr. King once again called Mr. McFadden’s office advising that the police wanted him to go to the station prior to attending at Court to give a statement. At that time, Mr. McFadden advised Mr. King that he could not speak to him and suggested that Mr. King call Jim Huaraney for advice. Again, Mr. McFadden received no confidential information from Mr. King.
(11) At no time during Mr. McFadden’s dealings with Fred King did he receive any confidential or privileged information.
[22] In addition, the notes of Constable Gary Pilling, made the 5th of June, 2013 and the transcript of Mr. King’s videotaped interview on October 16th, 2012 and the transcripts of statements of Robert Schafrick, Jessica Stammis and Martha Stammis were agreed to be part of the facts for the purposes of this application.
The Law
[23] The right of an accused to be represented by counsel of their choice is a fundamental one.[^1]
[24] The accused’s right to counsel of choice, however, is not absolute and must be subject to the requirement that chosen counsel must be free from any disqualifying conflict of interest.[^2]
[25] The threshold for removing counsel is a high one, as “a litigant should not be deprived of his or her choice of counsel without good cause”, as Justice Sopinka set out in MacDonald Estate v. Martin[^3].
[26] In determining whether a disqualifying conflict of interest exists, the court must decide two questions:
(a) Did the lawyer receive information attributable to a solicitor and client relationship, relevant to the matter at hand; and
(b) Is there a risk that it could be used to prejudice the client?
[27] The test set out by the Court of Appeal is whether there is any realistic risk of a conflict of interest. This is similar to the test set out by the Supreme Court of Canada in the MacDonald Estate case. Where it is shown that a lawyer was previously retained on a related matter, the onus will shift to the lawyer to prove that no information was imparted that could be relevant. The burden on counsel is “would a reasonably informed member of the public be satisfied that the new retainer will not give rise to a conflict of interest”.[^4]
[28] The law is clear that it is wrong to leave the determination of a potential conflict solely to counsel. It would be an error in law for the court to simply accept counsel’s contention that there was no conflict, without requiring inquiry into the propriety of counsel continuing to act.[^5]
[29] It is evident from a review of the authorities that whether or not any conflict of interest exists has become a very strict test. “The trend is the product of a strong policy in favour of insuring not only that there be no actual conflict, but that there be no appearance of conflict.”[^6]
[30] The court is required to consider the public interest and the public’s confidence in the administration of justice. Public confidence in the criminal justice system would be undermined by any appearance of impropriety in the conduct of the trial or any lack of fairness in the cross-examination of a witness.[^7]
[31] The inquiry that a court must take as to an appearance of conflict and the need to maintain public confidence in the administration of justice includes a consideration of the “duty of loyalty”. This duty of loyalty embraces concepts of privilege and confidentiality but it also recognizes, more generally, that a lawyer who accepts a retainer pledges a certain level of dedication and commitment to his or her clients’ cause.[^8]
[32] A lawyer cannot act if to do so would cause a reasonably informed member of the public to question the fairness and the integrity of the justice system. Even if there is no actual conflict of interest, if there is an appearance of conflict, counsel must be removed from the record.[^9]
[33] Cross-examination of a former client raises the potential for a conflict of interest, as information acquired in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of his or her former client.[^10]
Application of the Law to the Facts before the Court
[34] Provided the Crown’s application for the introduction of After the Fact evidence succeeds, it is agreed that Mr. King would then be a material witness in the proceeding and his credibility would then be at issue for both the applicant and the respondent.
[35] It is also clear that Mr. King contacted Mr. McFadden initially as Power of Attorney for the accused in this case, Christopher McCall. He did so in order to maintain the retainer that Mr. McCall has with Mr. McFadden.
[36] It is also clear that Mr. King has on numerous occasions, attempted to or has spoken to Mr. McFadden prior to giving a statement to the police. Mr. King’s evidence was that he decided not to give a statement to the police until he spoke to legal counsel before he contacted Mr. McFadden’s office.
[37] When Mr. King approached Mr. McFadden’s office, he was told that he should retain counsel before giving a statement to police. During at least 2 direct contacts with Mr. McFadden, Mr. McFadden properly advised Mr. King that he could not act for him. As pointed out by Mr. Ayotte, on behalf of Mr. McFadden, all Mr. McFadden did was provide summary advice to Mr. King, which is reflective of Mr. King’s constitutional right to remain silent; not to incriminate himself; and to obtain legal advice.
[38] During the application, Mr. King provided evidence that can be summarized as follow:
(1) He decided not to speak to police before he even tried to speak to Mr. McFadden. (As he said, it is not as if he has never had involvement with the police before).
(2) He told Mr. McFadden nothing of a confidential nature, and in fact Mr. McFadden advised him that he could not speak to him about the issue at hand which was the desire of the police to speak to Mr. King in order to obtain a statement from him.
(3) Mr. McFadden did tell Mr. King that he should speak to a lawyer before speaking to the police and that he should not speak to the police until he had legal advice.
[39] Although various cases were presented to the court, none were of particular assistance to the court, in so far as they involved cases where counsel either had acted for a current co-accused in the past, or had acted in the past for a material witness in a current case. Counsel for both the applicant and the respondent agreed that they could find no case with facts similar to the case before me.
[40] Further, it is clear that this is not a case where a solicitor and client relationship existed between Mr. King and Mr. McFadden, nor did Mr. McFadden receive confidential information from Mr. King. That is acknowledged by both the applicant’s and respondent’s counsel.
[41] The real issue before the court to decide is whether or not the appearance of divided loyalties might translate into an appearance of conflict of interest such that a reasonably informed member of the public might question the fairness and integrity of the justice system.
[42] The reality is that Mr. McFadden will have to cross-examine Mr. King, whom he has spoken to, both as Power of Attorney for the accused, Mr. McCall, and in advising him that he could not act for him while at the same time providing Mr. King with perfunctory legal advice, which ultimately directed him to retain other counsel. (The name of alternate counsel was even suggested to him.)
[43] Cross-examination of Mr. King by Mr. McFadden may well give rise to a public perception that would cause a reasonably informed member of the public to question the propriety in circumstances where the cross-examining lawyer in fact advised a material witness of his legal rights when he knew that, in this case, Mr. King, was going to be a material witness in the prosecution of this case.
[44] This is not a situation where there is a conflict of interest as a result of counsel acting in the past for a material witness or for a co-accused. Rather, this is a very grey area, for which counsel could not provide me with any similar case considered by the court, wherein public perception is really at issue.
[45] It is clear from the evidence given by Mr. King that his decision not to speak to police initially was as a result of his knowledge that there were going to be other charges laid, and that they “include me”. Further, Mr. King made it clear that he had experience in matters of this nature and so felt that he should not talk to the police until he obtained the advice of a lawyer.
[46] Further, Mr. King advised that when he contacted Mr. McFadden’s office and spoke to both Mr. McFadden’s secretary and directly to Mr. McFadden that he had no intentions of retaining Mr. McFadden. He further confirmed that Mr. McFadden made it clear that he could not be retained by him and that Mr. McFadden’s perfunctory advice to him was to speak to a lawyer before he spoke to police.
[47] I am satisfied that Mr. King did not retain Mr. McFadden formally or informally. I am also satisfied that Mr. King did not impart any confidential information to Mr. McFadden in relation to a matter material to the matter before the court.
[48] I am further satisfied that Mr. McFadden told Mr. King:
(1) That he could not be his lawyer;
(2) That he was to speak to an independent lawyer;
(3) That Mr. McFadden stopped Mr. King from telling him anything in relation to the issue; and finally
(4) That he should call a lawyer before he spoke to police, as otherwise he might incriminate himself.
[49] From his evidence, it is clear that Mr. King never believed Mr. McFadden to be his counsel, and that he did not impart any confidential information to him. As he said, “No, I didn’t get to tell him anything.”
[50] We are left, therefore, with the issue as to whether or not an informed member of the public would believe that a conflict, real or perceived, exists for Mr. McFadden as counsel for Mr. McCall.
[51] At pages 17 and 18 of R. v. Brissett[^11], Justice Casey Hill provides a step-by-step analysis that the court must consider in an alleged conflict case such as this:
(1) It is clear that the courts have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, in the exercise of the court’s supervisory authority over members of the bar;
(2) The courts must be concerned not only with actual conflicts but also with potential conflicts that develop as a trial unfolds;
(3) The test must be such that the public, represented by the reasonably informed person, must be satisfied that no use of confidential information would occur;
(4) Litigants ought not to be lightly deprived of their chosen counsel, without good cause or for compelling reasons;
(5) A potential disqualifying conflict of interest must first be established before it can be weighed against the fundamental right to the accused’s choice of counsel;
(6) Typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? and (2) Is there a risk that it will be used to the prejudice of the client? Consideration of these two questions is case-specific.
(7) Disqualification of trial defence counsel can be disruptive, and it may require a trial be adjourned in order to allow new counsel to bring themselves “up to speed”.
Findings
[52] In the case before me, a solicitor and client relationship did not exist between Mr. McFadden and Mr. King such that he did not wittingly put himself in the position of having a conflict of interest between his current client (Mr. McCall) and a former client. There is no former client.
[53] Even so, given the fact that Mr. McFadden will be put in a position of having to cross-examine Mr. King, he may be asked to do the impossible and appear to “divide his loyalties”. The trial judge, of course, could require that he retain other counsel to cross-examine Mr. King as “an aggressive prophylactic measure”.
[54] It is clear from the evidence that Mr. McCall wishes Mr. McFadden to continue to act on his behalf.
[55] Would a fully informed, reasonable observer, reviewing the circumstances of this case, perceive any of the following:
(1) A realistic risk or possibility that confidential information, secured by Mr. McFadden, would be used in an attempt to discredit Mr. King? Clearly, in this case, it has been agreed that Mr. McFadden did not obtain such confidential information. That has been acknowledged by counsel for both the applicant and the respondent.
(2) Would Mr. King likely believe that either Mr. McFadden would be in a position to challenge aspects of his testimony based on conversations that he had with him? Clearly in this case, there was no traditional solicitor-client relationship, or exchange of confidential information between Mr. McFadden and Mr. King, and that has been acknowledged by counsel for both the applicant and the respondent.
(3) Is it possible that Mr. King would be more likely to agree to leading questions and suggestions by Mr. McFadden cross-examining him as a result of his contact with him, both as Power of Attorney for the accused in this case and his conversations with him in relation to possible questioning by police? It is next to impossible for me to decide that issue, hearing only a snippet of evidence in chief and in cross-examination, however, there was no evidence suggesting this would be the case.
(4) Is it possible that Mr. McFadden, given this prior “grey area” relationship with Mr. King, be less effective aggressively cross-examining Mr. King on account of undue caution relating to the apparent use of confidential information previously obtained from the witness? Again, counsel for both the applicant and respondent accepted, as part of their agreed statement of facts, that Mr. McFadden did not receive confidential information from Mr. King. He has never acted for him.
[56] It is possible that an uninformed member of the public could, on the facts as have been put before me, believe that it may have been inappropriate for Mr. McFadden to advise Mr. King, even perfunctorily, given the fact that Mr. McFadden did know that Mr. King was to be a witness in this matter. This may well indeed cause such a member of the public to have significantly less confidence in the administration of criminal justice, should Mr. McFadden be permitted to cross-examine Mr. King and, as Justice Hill said in the Brissett case, “public faith in the justice system” could be significantly tarnished. The test, however, requires that a reasonably well informed member of the public be considered.
[57] Further, the trial judge could impose a condition that Mr. McFadden not be permitted to cross-examine Mr. King, but rather that counsel, independent of Mr. McFadden’s firm, be retained in order to do so. Unlike the Brissett case, Mr. King is not the principle prosecution witness. There is no very real perception for the potential for misuse of confidential information as counsel agreed that no such confidential information was imparted by Mr. King to Mr. McFadden. There would be no need to rely upon any undertaking from Mr. McFadden not to share confidential information with such counsel as, again, counsel for both the applicant and Respondent agreed that such confidential information was not shared by Mr. King with Mr. McFadden.
[58] This does not leave Mr. King in the position that Mr. McFadden would be a “prior counsel in a posture of acting against him and attacking his credibility in order to advance” Mr. McCall’s interests.
[59] I believe that this option, which should be sparingly used in cases of this nature, could address any concern that might arise in the public’s mind as to the fairness of the trial of Mr. McCall. It is clear that a traditional solicitor-client relationship has never existed between Mr. McFadden and Mr. King. If Mr. McFadden inadvertently went too far in speaking to Mr. King, it must be remembered that he dealt with him initially as Power of Attorney for Mr. McCall. When Mr. King contacted him in relation to speaking to the police, Mr. King had already decided not to speak to the police. Mr. King knew when he contacted Mr. McFadden that he was not his lawyer and could not be his lawyer. He acknowledged that Mr. McFadden made that clear and simply provided him with his basic rights in relation to the right not to incriminate oneself; the right to independent legal advice; and the right to remain silent.
[60] A reasonably well informed member of the public would surely, given the fact that there has never been a solicitor-client relationship between Mr. McFadden and Mr. King, question the reputation of the administration of justice in this case. All that Mr. McFadden did was impart standard, perfunctory advice as to Mr. King’s basic legal rights and stopped him from discussing the issue at hand. To the contrary, it might be open to a reasonably informed member of the public to believe that Mr. McCall would be denied his counsel of choice, because his Power of Attorney has had, and it would be presumed still has contact with, his counsel of choice. A disqualifying conflict of interest has not been established which outweighs the accused’s right to counsel of his choice.
Decision
[61] The Crown’s application to have David McFadden removed as counsel of record for Christopher McCall is dismissed. It of course, will be open to the Crown to renew its application, should new information become available, either before or during the trial of this matter.
“Justice D.S. Gunsolus”
Released: June 17, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER MCCALL
JUDGMENT
Mr. Justice D.S. Gunsolus
Released: June 17, 2013
[^1]: See R. v. Speid (1983), 1983 1704 (ON CA), 43 O.R. (2d) 596, [1983] O.J. No. 3198 (C.A.). See also: R. v. McCallen (1999), 1999 3685 (ON CA), 43 O.R. (3d) 56, 131 C.C.C. (3d) 518 (CA)
[^2]: See: R v. McCallen, supra at paras. 68-72 and R. v. Billy [2009] O.J. No. 4737 (SCJ) at para. 19
[^3]: See: MacDonald Estate v. Martin 1990 32 (SCC), [1990] 3 S.C.R. 1235 at para.16
[^4]: See: R. v. Widdifield 1995 3505 (ON CA), [1995] O.J. No. 2383 (C.A.). Also see: MacDonald Estate, supra
[^5]: See: R. v. Bilmez 1995 1385 (ON CA), [1995] O.J. No. 2479 (C.A.). Also see: MacDonald Estate, supra
[^6]: See: MacDonald Estate, supra, at para. 42
[^7]: See: R. v. Robillard 1986 4687 (ON CA), [1986] O.J. No. 261 at page 5.
[^8]: See: MacDonald Estate, supra at para. 41. See also R. v. Billy, supra, at paras. 24-25
[^9]: See: R. v. Billy, supra, paras. 30-31
[^10]: See: R. v. Brissett 2005 2716 (ON SC), [2005] O.J. No. 343 at para. 39
[^11]: See: R. v. Brissett, supra, at pages 17-18