Her Majesty the Queen v. Lorne Tunstead

COURT FILE NO.: CR-12-2627-00

DATE: 20131122

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

• and -

LORNE TUNSTEAD

Respondent

COUNSEL: CYNTHIA VALAREZO, for the Applicant/Crown CHARLES SETO, for the respondent

Ruling on Crown Application to Remove Defence Counsel from the Record

PUBLICATION BAN

DURNO, J.

[1] Justin Loizos and Lorne Tunstead are scheduled for trial in March, 2014, on charges of unlawful confinement and robbery. Tunstead is represented by Chris Murphy. The Crown seeks to have him removed as counsel because he represented a former co-accused, who is now a Crown witness, at his bail hearing.

[2] For the following reasons, the application is dismissed.

The Allegations

[3] In 2010, Justin Loizos, Lorne Tunstead and Ryan Widjanarko were charged with three counts of robbery and three counts of unlawful confinement.

[4] The Crown alleges that two young women were acting as escorts from a motel room in Mississauga. A month earlier, two of the accused men were pimping the two young women. One of the women told her mother was ill and she had to return home. This enabled them to get away from the pimps. When she was allowed to leave she was told that if she did not come back she would owe them $4,000 or they would find her.

[5] On the date of the offences, Widjanarko had booked an appointment with one of the girls by phone. When he knocked at the door, Widjanarko, Loizos, Tunstead and another male rushed into the room.

[6] After the men entered the motel room, they sat one of the women down and began yelling at her that she owed them the money and if she wanted to leave she had to give them the money she had. From a comment by one of the men, the women concluded he had a gun although no gun was seen. The Crown alleges that Widjanarko and an unknown male searched the room. Three hundred dollars and a BlackBerry were taken from one of women by the unknown male who was with Widjanarko.

The Alleged Disqualifying Conflict

[7] Tunstead, who had previously been represented on other charges by Chris Murphy, retained him to represent him on the six charges. After a contested bail hearing, Tunstead was released on a recognizance on July 25, 2010.

[8] On July 27, 2010, Widjanarko’s bail hearing was scheduled in the Brampton Ontario Court of Justice. Chris Murphy was retained to conduct the bail hearing. On previous dates, Crowns had reviewed the file and were going to seek Widjanarko’s detention. On July 27, 2010, another Crown reviewed the file and consented to his release after speaking to Mr. Murphy.

[9] The Crown has now severed Widjanarko from his co-accused and intends to call him to testify at Tunstead’s and Loizos’ trial. Widjanarko has given conflicting versions of the events to police in his post-arrest and more recent KGB statement.

The Positions of the Parties

[10] The Crown seeks to have Mr. Murphy removed from the record citing a conflict of interest as he will now have to cross-examine, his former client on these charges, Widjanarko.

[11] Widjanarko, Tunstead and Loizos are content that Mr. Murphy continue to represent Tunstead.

The Evidentiary Background

The bail hearing:

[12] At the outset of the bail hearing, Crown Counsel said the file had been reviewed by a number of Crowns, including himself. He had reached a position different than his colleagues and was prepared to recommend terms of release, noting Widjanarko had no record, no outstanding charges and that Tunstead, who faced more charges than Widjanarko and had a criminal record, was released earlier on an $80,000 surety bail. It was apparent that Mr. Murphy had told the Crown about Tunstead’s situation and that he was released.

[13] The Crown read in the facts and said the proposed bail was a $50,000 recognizance with Widjanarko’s father as surety and specific conditions. Other than introduce himself, indicate he would be suggesting terms of release and advising of Tunstead’s return date, Mr. Murphy said nothing at the bail hearing.

[14] Mr. Murphy says:

i. he had a brief conversation with Widjanarko related “only to biographical data such as address, age and employment;"

ii. to the best of his recollection he received no confidential information from Widjanarko, including any information about the offences;

iii. the bail Crown was told he had acted for Tunstead and that the trial Crown was told April 19, 2013 that he had represented Widjanarko at his bail hearing;

iv. he has never acted for Widjanarko before or after the July 27 bail hearing; and

v. he categorically states that he does not possess any confidential information provided to him by Widjanarko in writing or in thought.

[15] While it is not absolutely clear from the affidavits and the transcript of Widjanarko's bail hearing, whether Mr. Murphy spoke to Crown and contributed to the prosecutor's decision to consent to the release order or whether he was told of the Crown's position before he had any input. I am proceeding on the basis that Mr. Murphy's comments comparing the roles and positions of Widjanarko and Tunstead contributed to the Crown's revised position.

[16] Widjanarko says he did not seek or obtain any legal advice from Mr. Murphy. He has absolutely no concerns about him representing Tunstead at the trial. After the bail hearing, Mr. Murphy referred him to his current counsel, Daniel Brown, who provided him with independent legal advice in regards to this application.

[17] Mr. Tunstead, after receiving independent legal advice, has no objection to Mr. Murphy representing him knowing he had acted for Widjanarko at the bail hearing.

[18] Mr. Loizos does not seek to have Mr. Murphy removed as counsel for Tunstead. His counsel has no intention of challenging Widjanarko's credibility.

[19] There was no application by the Crown to cross-examine Mr. Murphy, Tunstead or Widjanarko.

The Law

[20] An order removing counsel should only be made if there are compelling reasons to do so. R. v. Speid (1983), 8 C.C.C. (3d) 518 (Ont. C.A.) 17. While permitting accused persons to retain their counsel of choice is important to the proper administration of justice, the right to counsel of choice is not absolute because chosen counsel must be free from a disqualifying conflict of interest. R. v. McCallen (1999), 1999 3685 (ON CA), 131 C.C.C. (3d) 518 (C.A.) at para. 68-72.

[21] Where a conflict arises, the following values must be considered: first, the preservation of the confidentiality of information provided to counsel during solicitor-client communications, second, the maintenance of the high standards of the legal profession and the integrity of the justice system; third, the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause; and finally, the desirability of permitting reasonable mobility in the legal profession. MacDonald Estate v. Martin 1990 32 (SCC), [1990] 3 S.C.R. 1235 at para. 13. In the context of this application, the final value would encompass permitting counsel to assist persons requiring immediate assistance without automatically precluding counsel from appearing for another accused person in the same proceeding.

[22] While a balance must be struck among the competing interests, by giving precedence to the preservation of the confidentiality of information imparted to counsel, the confidence of the public in the integrity of the profession and in the administration of justice will be maintained and strengthened. However, the standards to be applied are sufficiently flexible to reflect the other interests noted.

[23] While the consent of the client to the counsel remaining on the case is a relevant consideration, that consent must give way to the public interest and the integrity of the justice system when there is a legitimate concern about the appearance of impropriety arising from the conflict. McCallum, at para. 72

[24] While no doubt counsel enjoys an advantage, it would be wrong to leave the determination of the potential conflict solely to counsel, for the court to accept counsel’s contention that there was no conflict without conducting an inquiry into the propriety of counsel continuing to act. R. v. Blimez (1995), C.C.C. (3d) 123 (C.A.)

[25] Similarly, a waiver from the witness after receiving independent legal advice is not a complete answer. The court must still consider the public interest and the need for public confidence in the administration of justice. It is in the public interest as well as that of the accused that the fundamental rules of a fair trial be observed. Any improprieties or lack of trial fairness in the cross-examination of a witness would undermine public confidence in the criminal justice system. R. v. Robillard (1986), 1986 4687 (ON CA), 28 C.C.C. (3d) 22 (Ont. C.A.)

[26] In determining whether a disqualifying conflict of interest exits, the Supreme Court of Canada in McDonald held that two questions must be answered:

1. Did the lawyer receive information attributable to a solicitor and client relationship? and

2. Is there a real risk that it could be used to the prejudice of the client?

[27] In MacDonald, Sopinka J. held that there may be cases where it was established beyond a reasonable doubt that no confidential information relevant to the case was disclosed. This could arise where the witness admits that this is the case. However, that evidence would not avail in the face of an “irrebutable” presumption. The court’s degree of satisfaction must be such that it would withstand the scrutiny of a reasonably informed member of the public that no such information passed. That burden must be discharged without revealing the specifics of the privileged communications. at para. 46

[28] The test is whether the public, represented by the reasonably informed member of the public would be satisfied that no use of confidential information would occur at the trial. There is a strong policy in favour of ensuring not only that there is no actual conflict but that there be no appearance of conflict. MacDonald, at para. 42 and 44

Analysis

[29] Applications to remove counsel for disqualifying conflicts of interest are case-specific and must take into consideration all of the circumstances in the case. The nature of the prior retainer is a most important consideration. Being retained for a bail hearing or a trial are very different retainers for several reasons. First, when accused persons are arrested and held for a bail hearing, understandably their initial focus is on getting out of jail. This is particularly so with persons without records like Widjanarko. Suggesting their bail hearing be adjourned to a later date to permit counsel to attend the jail for a lengthy interview is often a very difficult task.

[30] Second, the time for interviews and the facilities are generally not conducive to lengthy interviews. Generally the interviews are through glass and on phones with other accused and their counsel in close proximity. There are time constraints as counsel and the accused have to get to court. Defence counsel will also want to speak with Crown Counsel and the sureties about the case. Most frequently the only pre-bail hearing interview is in the courthouse cells on the date of the hearing. Even if counsel has not acted for the accused previously, obtaining his or her life story is neither necessary nor productive.

[31] Third, what counsel has to know before conducting the bail hearing is not the equivalent of what is required to conduct a trial. The Criminal Code provides the three grounds upon which detention can be ordered. Those grounds dictate the focus of the pre-bail interview. Whether the accused has a criminal record and if so, its nature and whether he or she has outstanding charges is most important. Whether sureties are available, their backgrounds, the amounts they can sign for and what terms could be suggested are key factors. In terms of the sureties, it is most important to speak to them and outline the nature of the allegations, to learn the nature of their relationship with him or her, canvass the surety's duties and get their input on the amount they are prepared to sign for, as well as outlining the questions that will be posed in examination-in-chief and those that may be asked in cross-examination. In many cases, it is only the sureties who testify, so spending time with the sureties is often a more productive use of the limited time available.

[32] There may be occasions where the strength of the Crown's evidence including the potential admissibility of evidence is canvassed at a bail hearing. However, given that s. 515(1(1)(b) precludes the Crown or court from asking the accused about the offence unless he or she has testified regarding the offence, the occasions where counsel will want to ask the accused about the allegations are few and far between. The allegations are available from the Crown and it is not always necessary to make inquiries of the accused regarding the offence. Here, Mr. Murphy knew the allegations having conducted Tunstead's contested bail hearing.

[33] The only evidence here is that the interview lasted five to ten minutes. There is evidence from Mr. Murphy and Widjanarko that nothing regarding the offence or the details of Widjanarko’s background that would qualify as solicitor-client communications occurred.

[34] The Crown argued that it was an "elementary and trite premise that any competent counsel practicing criminal law will inquire into his client's background and character during the preparation for a bail hearing. Under these circumstances, the only way in which counsel could know whether there was available arguments to be made in support of the Crown's consent to bail would be to discuss the matter with his client." If background means the criminal record, outstanding charges, employment and available sureties, I agree. If it goes beyond that, with respect, I disagree. How often defence counsel is asked to argue in favour of a consent release is unknown but I suspect it is a very rare event in busy bail courts with experienced counsel.

[35] In addition, what counsel would be required to know here would be the following:

1. Widjanarko had no criminal record;

2. he had no outstanding charges;

3. Tunstead, with more serious pimping charges, a more significant role and a record had been released; and

4. there was a surety prepared to sign in a substantial amount.

The first three items could be obtained from the Crown and the last could come from the accused or the sureties.

[36] Fourth, the scope of the solicitor-client privilege also must be kept in mind. In VIII Wigmore on Evidence (McNaughton Rev., (1961)) 2292, p. 554:

Where legal advice of any kind is sought from a professional advisor in his/her capacity as such, the communications relating to that purpose, made in confidence by the client, are at his/her instance permanently protected from disclosure by him/herself or by the legal advisor except the protection be waived. (emphasis added)

[37] The information counsel require to prepare for a bail hearing during a limited retainer does not necessarily include information provided in confidence about the offence, the accused person’s background or any other issue. The information obtained is generally for the purpose of communicating that information to the Crown and/or the court. There is no presumption in these circumstances where counsel was clearly only going to conduct the bail hearing as he was already acting for Tunstead, that information was conveyed to him in confidence.

[38] Fifth, the nature of the practice of criminal law and the availability of private counsel to conduct bail hearings is also a factor to consider. Generally speaking police do not arrest by appointment. Criminal defence counsel spend their days in court and are often booked for months in advance. When the midnight or later phone call comes, counsel often have to arrange for other counsel to conduct the bail hearing or the accused has difficulty arranging for counsel. Often accused persons adjourn their bail hearing until they can retain private counsel. Retainers for only the bail hearing are neither uncommon nor should they automatically be discouraged.

[39] While duty counsel do a very good job dealing with multiple accused persons in bail court, having a counsel whose day is devoted to one case has advantages, particularly in the more serious cases like this one. That is not to say that any counsel who only conducts the bail hearing has no disqualifying conflict of interest. There will be cases where the nature of the communications in preparation for, during or after a bail hearing will create such a conflict.

[40] While the Crown questioned the procedure by which Widjanarko's waiver was signed because Mr. Murphy prepared it, I am not persuaded any adverse inference can or should be drawn. Widjanarko signed it. It is his waiver, not Mr. Murphy's. As the Court of Appeal held in R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60 at para. 161, when considering an affidavit, it is not who prepared it, the content is that of the person who signed it.

[41] The Crown also suggested that Widjanarko did not waive privilege before the conversation and that he could later withdraw his consent to Mr. Murphy acting. I am not persuaded there is any significance to the absence of a waiver before a conversation for which there is no evidence it contained any information that would be subject to solicitor-client information. While Widjanarko could withdraw his waiver, on this record it is speculative to suggest that might happen. Indeed, if the argument was persuasive, it would remove any consideration for waivers because they could be withdrawn in every case.

[42] Ms. Valarezo submitted that Widjanarko may be more inclined to favour Mr. Murphy's client because he is the one who got him out of jail. That may be so. However, that same concern would apply in the following scenario: Widjanarko’s parents contacted and retained Mr. Murphy the night before the bail hearing, they told him their son had no record or outstanding charges and that they were prepared to act as sureties and in what amounts, before speaking to Widjanarko he went to speak with the Crown and told him about Tunstead’s release, that Widjanarko had no record and no outstanding charges, that his role was less than that alleged against Tunstead and that he was facing fewer charges than Tunstead. The Crown agreed to a release order. Whether because of timing issues or prisoner delays in being brought to court, Mr. Murphy never got to see Widjanarko in the cells. The case is called in court, Mr. Murphy approaches Widjanarko in the dock and introduces himself. The Crown tells the justice of the peace that as a result of his discussions with Mr. Murphy he was prepared to consent to a release order. In that scenario, Widjanarko could feel beholden to Mr. Murphy but his views have nothing to do with the focus of this inquiry, solicitor-client communications.

[43] Ms. Valarezo submits that she will be suggesting to Widjanarko that he is favouring Tunstead because Mr. Murphy obtained his release. Whether she will pursue that line of questioning will be determined by Widjanarko’s trial evidence and any ruling the trial judge makes.

[44] Widjanarko has given three statements to the police. The last two are most relevant for the issues I am addressing. In the June, 2013 KGB statement, Widjanarko says that it was Loizos who called and asked him to help him because a girl owed him money but would not talk to him. He wanted Widjanarko to call and make an appointment with the girl. When they went to the motel it was Loizos who was upset and doing the talking. Tunstead was in the other room and was quiet.

[45] However, in his July 22, 2010 statement, upon arrest, he said it was Tunstead who had called him, picked him up and asked him to make a call. He said that when they knocked on the door Tunstead was the one talking to the woman who answered the door. He thought the woman was Tunstead’s friend and appears to agree that there was some yelling and screaming. That statement was not under oath and did not comply with KGB.

[46] While the June 13 statement is more favourable to Tunstead, and less favourable to Loizos than his previous statement, it is not at all clear which version Widjanarko will give at trial. Whether his trial evidence will be version #1, #2 or another account remains to be seen. However, at this time, It is difficult to conceive of a scenario in which the jury will not hear about both statements in the course of Widjanarko’s evidence, whatever he says.

[47] If he testifies in accordance with the last statement, Ms. Valarezo says she will seek to refresh his memory from the second statement. Assuming she is permitted to ask the question, the jury will know Mr. Murphy acted on the bail hearing. Whether he received solicitor-client information, the first step in McDonald, does not impact on that inference. It may very well be that a jury could draw that the inference the Crown seeks but it is not related to solicitor-client information being given to Mr. Murphy.

[48] The next area for consideration is Tunstead’s and Loizos’ arguments that they do not intend to challenge Widjanarko. For the following reasons, they over-simplifying the issues, Tunstead in indicating he takes no issue with Widjanarko’s police statement of June 10, 2013 and Loizos saying he does not intend to challenge Widjanarko.

[49] Tunstead’s position is premised on Widjanarko testifying in accordance with the KGB statement. That is far from certain on this record. Loizos’ position is curious given Widjanarko’s statement. However, other than a joint attack on at least the complainant’s credibility it is difficult to predict any other defence approach.

[50] In these circumstances, I place no weight on Tunstead's and Loizos' assertions that they can in effect, “live with” Widjanarko’s evidence when it is not clear what he is going to say. There remains a realistic possibility that Tunstead and/or Loizos will have to attack Widjanarko’s credibility and/or reliability. That however, does not end the matter in the Crown’s favour.

[51] That Widjanarko, Tunstead and Loizos take no issue with Mr. Murphy continuing to act for Tunstead, while relevant is not determinative.

[52] Against that background, I turn next to the criteria identified in the cases noted early. The first issue is whether Mr. Murphy received information attributable to a solicitor-client relationship. I am not persuaded he did. He has sworn that he did not. Widjanarko swears he gave no such information. While not determinative, that neither party to the conversation feels solicitor-client communications occurred is a relevant consideration.

[53] For the reasons noted earlier, I am also not persuaded there is a presumption or inference that information attributable to a solicitor-client relationship was obtained by Mr. Murphy in these circumstances. The reasonable member of the public must be an informed person. When the entire context is considered, I find a reasonable person would not draw an inference or apply a presumption that solicitor-client information was provided. I find there is no real conflict nor would there be an appearance of one.

[54] I appreciate that in R. v. Toor [2010] O.J. No. 2273 (S.C.J.), Ricchetti J. held that a client would have disclosed his entire background to counsel, and that every criminal counsel would enquire about an accused’s background when acting on a retainer because presenting the client as more or less credible is highly relevant. However, that was a very different fact situation. Counsel had been retained to represent the witness on a previous charge, not a bail hearing. It is a reasonable assumption that counsel would have met the witness more than once to obtain the client’s background and account of the incident.

[55] No doubt in some cases, subconscious thoughts would direct the use of information counsel was not even aware of as Ricchetti J. held. However, with both Widjanarko and Mr. Murphy stating there was no conversation about his background other than basic information and no discussion about the allegations; it would be speculative to find there was a risk of subconscious influences.

[56] While in Toor, the ruling applied an irrefutable presumption that privileged information must have been communicated, given the very limited contact and the nature of the retainer, I am not persuaded such a presumption is available here. No doubt, the retainer on the same case can raise concerns as occurred in R. v. Speid, 1983 1704 (ON CA), [1983] O.J. No. 3198 (C.A.). However, the nature of the bail hearing retainer here is very different than occurred in Spied.

[57] In R. v. Brissett (2005), 2005 2716 (ON SC), 74 O.R. (3d) 248 (S.C.J.), Hill J. found there was a potential for the misuse of confidential information obtained during the earlier retainer. That witness refused to waive privilege and His Honour found the lawyers had access to recall confidential information from the previous case. Indeed, at the preliminary inquiry counsel had cross- examined the witness on the previous case. That is a very different situation than here.

[58] Having reached that conclusion on the first McDonald question it is not necessary to address any concerns for misuse. I appreciate that assurances or undertakings not to use the information will not avail, but that assumes there is information that could be used.

[59] Balancing the factors noted earlier, permitting Mr. Murphy to continue to represent Mr. Tunstead, will not jeopardize confidential information imparted to him by Widjanarko since I find there was no such information given. Second, in these circumstances public confidence in the legal profession, the administration of justice and counsel of choice will not be jeopardized. Finally, the interest in having private counsel available to assist with bail hearings will not be discouraged in these circumstances by permitting Mr. Murphy to continue.

Conclusion

[60] The application is dismissed.

DURNO, J.

Released: November 22, 2013

COURT FILE NO.: CR-12-2627-00

DATE: 20131122

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

and –

LORNE TUNSTEAD

Respondent

Ruling on Crown Application to Remove Defence Counsel from the Record

PUBLICATION BAN

DURNO, J.

Released: November 22, 2013