Court File and Parties
Court File No.: 10-00011787
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
CHOY CHEA, SINHEM SRUN,
KIMSAN HEANG, MENG LIM & VEASNA SAM
INFORMATION CONTAINED HEREIN IS PROHIBITED
FROM PUBLICATION PURSUANT TO SECTION 648 OF
THE CRIMINAL CODE OF CANADA
RULING RE: CONFLICT OF INTEREST
BEFORE THE HONOURABLE JUSTICE M.K. FUERST
On June 10, 2013, at NEWMARKET, Ontario
APPEARANCES:
J. Costain Counsel for the Crown
M. Dionne Counsel for the Crown
F. Lyons Agent for Counsel for Choy Chea
K. Graham Counsel for Sinhem Srun
D. Basile Counsel for Kimsan Heang
M. Kerbel Counsel for Meng Lim
F. Davoudi Counsel for the Veasna Sam
...MONDAY, JUNE 10, 2013
...UPON RESUMING:
REASONS FOR RULING
Furest J. (Orally)
During a voir dire concerning the admissibility of his statement to the police, Mr. Sam last week told his lawyer, Mr. Davoudi, that Mr. Kerbel had represented him on drinking and driving charges in or around 2005. Mr. Sam had never before raised the matter, notwithstanding that he sat through some six weeks of preliminary hearing that also was attended by Mr. Kerbel, who is counsel for the co-accused, Mr. Lim.
Mr. Kerbel was contacted immediately by counsel. He did not recall acting for Mr. Sam. However, he made inquiries at his office and confirmed that Mr. Sam was correct in his recollection. Mr. Kerbel states that any file relating to the 2005 matter is either in storage or has been destroyed. He has not attempted to access it. He states that the matter resulted in a guilty plea by Mr. Sam. He further states that he does not have any confidential information that could be harmful to Mr. Sam.
Mr. Sam, who received independent legal advice from Mr. Caramanna and provided an affidavit, states that he did not provide confidential information to Mr. Kerbel. He is content that Mr. Kerbel continue to act for Mr. Lim.
Mr. Lim received independent legal advice from Mr. Dotsikas. Mr. Lim wishes to continue to be represented by Mr. Kerbel.
Mr. Dionne, on behalf of the Crown, states that any conflict is more apparent than real. He consents to Mr. Kerbel continuing to act for Mr. Lim, providing that Mr. Sam and Mr. Lim waive any conflict in writing.
No other party asserted a position on the issue.
This murder case involves charges against five accused as the result of a stabbing at a banquet hall. Mr. Dionne states that the consumption of alcohol by the parties will be relevant to the issues at trial. Although the Crown’s theory of the case is that Mr. Sam and Mr. Lim were doing things in concert and at the same time, it is not known whether either or both of them will wish to testify at trial or what either or both might say under oath.
I accept that Mr. Kerbel does not recall any confidential information about Mr. Sam, will undertake not to access any file he may have, and will undertake not to cross-examine Mr. Sam about the drinking and driving case.
I take into account Mr. Lim’s wish to continue to be represented by Mr. Kerbel. However, the course of any criminal trial, especially a multi-week, multi-accused murder trial, is unpredictable and events may occur that would trigger the recollection of confidential information that is not now in the minds of either Mr. Sam or Mr. Kerbel. There is, as well, concern about the appearance of conflict and the need to maintain public confidence in the administration of justice: see MacDonald Estate v. Martin, 1990 32 (SCC), [1990] S.C.J. No. 41. Mr. Lim’s right to counsel is an important consideration, but that right is not absolute.
I conclude that while the risk of misuse of confidential information by Mr. Kerbel to the detriment of Mr. Sam is minimal, as is the risk to Mr. Lim that Mr. Kerbel will not vigorously defend him, I cannot say that there is absolutely no risk at all. Nor can I say that there is no concern at all about an appearance of conflict. I am persuaded, however, that both concerns can be met by the imposition of conditions on Mr. Kerbel’s continued participation in the trial as Mr. Lim’s counsel.
Those conditions are as follows:
Both Mr. Sam and Mr. Lim will provide written waivers of any conflict.
In the event it is necessary that Mr. Sam be cross-examined on behalf of Mr. Lim, that cross-examination will be conducted by a lawyer other than Mr. Kerbel.
In the event that it is necessary that any other witness be cross-examined on behalf of Mr. Lim in a manner adverse to Mr. Sam, that cross-examination will be conducted by a lawyer other than Mr. Kerbel.
In the event that it is necessary on behalf of Mr. Lim that his counsel in his closing address takes a position detrimental to Mr. Sam, counsel other than Mr. Kerbel will make the closing address.
Mr. Kerbel will not access his file concerning Mr. Sam, nor will he pass on any confidential information concerning Mr. Sam to any other lawyer.
If, at any time, any accused person or his lawyer is of the view that there is an issue of conflict, it is to be raised with me immediately.
In the event that Crown counsel or any accused takes the position that these conditions are not acceptable or are inadequate, I am to be advised immediately.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Eleni Makos, C.R., certify that this document is a true and accurate transcript of the recording of R. v. CHOY CHEA, SINHEM SRUN, CHOY CHEA, SINHEM SRUN, in the Superior Court of Justice, held at Newmarket, Ontario, on June 10, 2013, taken from Recording No. 4911-403-20130610-085714, which has been certified in Form 1 by Eleni Makos, C.R.
September 23, 2013 ________________________
Eleni Makos, C.R.
TRANSCRIPT ORDERED: July 29, 2013
TRANSCRIPT COMPLETED: September 23, 2013
ORDERING PARTY NOTIFIED: September 25, 2013