COURT FILE NO.: 11-30000715
DATE: 20130206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TRISTAN LALL and MacGYVER EDWARDS
Joshua Levy & Michael Madeiros, for the Crown
Edward Sapiano, for the Accused, Tristan Lall
Nathan Gorham & Katie Scott, for the Applicant/Accused, MacGyver Edwards
William Jaksa, for Edward Sapiano
HEARD: January 10 & 11, 2013
Ruling on motion to have counsel for Tristan Lall removed as counsel of record
GARTON J.:
[1] Tristan Lall and MacGyver Edwards are charged with the murder of Zabiulluh Mojaddedi, who was fatally shot during an armed robbery on August 5, 2009.
[2] At the outset of the trial, Mr. Gorham, counsel for Mr. Edwards, brought a motion for an order removing Mr. Sapiano as counsel of record for Mr. Lall. On January 15, 2013, I allowed the motion with reasons to follow. These are those reasons.
[3] Mr. Gorham alleges that a solicitor-client relationship was formed between Mr. Sapiano and Mr. Edwards when Mr. Sapiano interviewed Mr. Edwards at the Toronto East Detention Centre shortly after his arrest. At the time of the interview, Mr. Sapiano had already been retained by Mr. Lall and was unaware that Mr. Edwards was charged with the same murder that Mr. Lall was charged with. Mr. Gorham submits that Mr. Sapiano is in a position of conflict and can only continue to act for Mr. Lall if he undertakes not to take an adverse position against Mr. Edwards. Mr. Sapiano has indicated that he is not prepared to give such an undertaking.
[4] Counsel agree that there is a reasonable possibility, if not a probability, that the two accused will take adverse positions against each other during the trial. Crown counsel, Mr. Levy, submits that for the purposes of this application, it can be fairly assumed that such positions will be taken. One potential scenario is that Mr. Edwards may testify and deny that he was the person who shot Mr. Mojaddedi. In that case, Mr. Sapiano, as counsel for Mr. Lall, would no doubt attack the credibility of Mr. Edwards in cross-examination with a view to establishing that Mr. Edwards was, in fact, the shooter.
[5] The Crown supports the motion brought by Mr. Gorham, although not the timing of it.
[6] Mr. Sapiano submits that there never was a solicitor-client relationship between himself and Mr. Edwards; hence, his acting as counsel for Mr. Lall does not place him in a conflict of interest position. In support of his position, Mr. Sapiano relies on a letter signed by Mr. Edwards and Mr. Edwards’ lawyer at the time, Jeremy Wilton, prior to the preliminary hearing in which Mr. Wilton states that he is satisfied that Mr. Sapiano received no information during the interview that would prejudice Mr. Edwards at the preliminary hearing or trial.
The indictment
[7] Both Mr. Edwards and Mr. Lall were originally charged with first degree murder; both were committed to stand trial on that charge following the preliminary hearing. However, on December 10, 2012, Nordheimer J. allowed a motion to quash Mr. Lall’s committal on first degree murder and ordered that he be tried on a charge of second degree murder. As a result, the Crown has filed a new indictment: Count 1 charges Mr. Edwards with the first degree murder of Mr. Mojaddedi; Count 2 charges Mr. Lall with the second degree murder of Mr. Mojaddedi; and, Count 3 charges both accused with the robbery of Jonathon Chronopolous while using a restricted firearm.
Overview of the criminal allegations
[8] The Crown synopsis indicates that Mr. Mojaddedi was shot and mortally wounded around 8:00 p.m. on August 5, 2009 outside 47 Gilder Avenue, which is an apartment complex in Scarborough. He died in hospital later that evening.
[9] The Crown alleges that Mr. Mojaddedi was a small time drug dealer who socialized with friends and acquaintances at 47 Gilder. Jonathon Chronopolous also socialized at that address. Mr. Chronopolous was in the habit of wearing thousands of dollars worth of jewellery around his neck and was wearing that jewellery at the time of this incident. The position of the Crown is that Mr. Chronopolous was the target of an armed robbery that went awry and ended with Mr. Mojaddedi being shot.
[10] In the hours leading up to the shooting, Mr. Mojaddedi, Mr. Chronopolous and a number of their friends were hanging around outside 47 Gilder in a common area used by residents of the complex. Some members of the group were drinking beer.
[11] At about 8:00 p.m., two men, unknown to anyone in the group, approached along a path that runs from the back to the front of the building. They paused outside 47 Gilder and then started towards the group. One or two members of the group, sensing trouble, walked away.
[12] When the two strangers reached the group, they each pulled out a gun, stated that no one was to move, and demanded property. The taller of the two, whom the Crown alleges was Mr. Lall, singled out Mr. Chronopolous and ordered him to give up his jewellery. The shorter man, whom the Crown alleges was Mr. Edwards, appeared to be taking property from a couple of other individuals, one of whom was Mr. Mojaddedi.
[13] Mr. Chronopolous did not cooperate with Mr. Lall, who was pointing a gun at him. They exchanged a few words. At one point, Mr. Chronopolous tried to grab the gun and a struggle ensued. Two or three individuals in the group joined in to assist Mr. Chronopolous. Mr. Lall sustained a large gash across his nose when one of these individuals struck him on the head with a beer bottle.
[14] While the one group was trying to overpower Mr. Lall, Mr. Edwards, who was or had been in a physical altercation with Mr. Mojaddedi, shot Mr. Mojaddedi. Members of the group attacking Mr. Lall began to retreat after the shot was fired. Mr. Lall, who was still in possession of his gun, began shooting as he got to his feet but fortunately did not hit anyone. Mr. Lall and Mr. Edwards fled to the rear of the building, where they got into a BMW. A third person – the driver of the vehicle – then drove them from the scene. In the melee, Mr. Lall left behind his cell phone and hat. There is DNA evidence linking Mr. Lall to the scene.
[15] An anonymous source provided the police with the BMW’s licence plate number. The police later determined that the driver was Mr. Lall’s girlfriend, Mikeesha Izzard-Bryan. She initially denied any involvement but, in a later police interview, admitted to being the driver and confirmed Mr. Lall’s presence at the scene. She told police that they had picked up Mr. Edwards at a townhouse complex prior to the shooting. She also described going to an apartment building in North York after the shooting, where they met up with Mr. Lall’s sister, Crystal. Ms. Izzard-Bryan and Crystal accompanied Mr. Lall to the hospital. They later returned to the apartment.
[16] Ms. Izzard-Bryan acknowledged hearing the sound of gunfire but denied seeing a firearm at anytime or hearing any utterances from either Mr. Lall or Mr. Edwards that would suggest that they had shot someone. Based on what they told her, she understood that they went to Gilder to purchase “weed” but were robbed and beaten instead.
[17] Crystal Lall identified Mr. Edwards as a person who was present at the apartment building in North York. Video surveillance images show Mr. Edwards arriving at the building with Mr. Lall and Ms. Izzard-Bryan. He is later seen leaving in a taxi after Mr. Lall, Ms. Izzard-Bryan and Crystal left for the hospital.
The arrest of Mr. Lall: August 13, 2009
[18] Mr. Lall was arrested for the murder of Mr. Mojaddedi on August 13, 2009. Shortly thereafter, he retained Mr. Sapiano, who has continued to act for him with respect to this matter, including the certiorari application brought before Nordheimer J. last month.
The arrest of Mr. Edwards: October 23, 2009
[19] Mr. Edwards, who had turned eighteen just a few days before the alleged murder, was arrested on October 23, 2009. Following his arrest, Mr. Edwards’ mother contacted Mr. Sapiano regarding legal representation for her son. Mr. Sapiano interviewed Mr. Edwards at the Toronto East Detention Centre on the afternoon of November 4, 2009. At the time that he attended at the jail, and even after his interview of Mr. Edwards, Mr. Sapiano did not realize that Mr. Edwards was charged with the same murder that Mr. Lall was charged with.
[20] Kenton Chance, who is a security manager at the Toronto East Detention Centre, was called as a witness at this motion with a view to establishing the length of Mr. Sapiano’s November 4th interview of Mr. Edwards. Mr. Chance produced the log sheets for the floor where Mr. Edwards was being housed – Unit 3B – and for the floor where lawyers conduct interviews of inmates – Unit 1B. The information contained in the two logs is not consistent. The log for Unit 3B indicates that Mr. Edwards was taken from the third floor at 2:16 p.m. to consult with counsel and returned 38 minutes later at 2:54 p.m. The log for Unit 1B indicates that Mr. Edwards was brought into the interview room on the first floor at 1:30 p.m. and exited that room one hour and 20 minutes later at 2:50 p.m.
[21] Mr. Chance candidly acknowledged that he could not say for certain which log is correct. However, he thought it likely that the first floor log was the more accurate document. He noted that there is less activity on that floor than on the third floor, where there is more movement of inmates to keep track of and record. In addition, the third floor log contains a number of obvious corrections or amendments. Based on his experience, Mr. Chance was of the view that the “2:16” notation on the third floor log was probably a late entry made after a count of the inmates had been taken and the correctional staff realized that Mr. Edwards was absent.
[22] In all of the circumstances, I find that the first floor log is probably the more accurate record and that Mr. Sapiano’s interview of Mr. Edwards lasted for more than an hour.
[23] A day or two after the November 4th interview, Mr. Edwards was in attendance at the Old City Hall on a scheduled court appearance. Mr. Sapiano left a message with duty counsel that he intended to act for and was in the course of being retained by Mr. Edwards. This message was communicated to the Crown, Mr. Levy, who then called Mr. Sapiano and advised him that Mr. Edwards was co-accused with Mr. Lall. Mr. Sapiano expressed surprise and immediately indicated to Mr. Levy that in those circumstances, he could not act for Mr. Edwards. Mr. Sapiano then proceeded to advise Mr. Edwards and his family that he could not represent him.
Mr. Edwards retains Anthony Robbins
[24] Mr. Edwards eventually retained Anthony Robbins of Robbins and Associates to act for him in this matter. Mr. Sapiano contacted and had discussions with both Mr. Robbins and Mr. Robbins’ associate, Jeremy Wilton, as to whether Mr. Edwards would be claiming that Mr. Sapiano had a conflict of interest if Mr. Sapiano continued to act for Mr. Lall. The result of these discussions was a letter dated June 15, 2010, which is on the letterhead of Robbins and Associates and which is signed by both Mr. Wilton and Mr. Edwards. Mr. Sapiano has indicated that he actually drafted the letter. The letter reads as follows:
Mr. Sapiano,
I am writing to confirm that we will not be claiming a conflict of interest because you represent MacGyver Edwards’ co-accused, Tristan Lall.
I understand that you met with Mr. Edwards at the request of his mother shortly after Mr. Edwards’ arrest. I also understand, and Mr. Edwards confirmed, that during your meeting the case was not discussed in any detail. I accept that your discussions focussed mainly on the issue of bail and the possibility of release. I am satisfied that you received no information that would prejudice Mr. Edwards at the preliminary hearing or trial. I am content that you continue to represent Mr. Lall.
I also confirm that you raised the issue of conflict with our Firm immediately after you realized we would be representing Mr. Edwards. As a result we were able to consider the matter carefully at the outset of this case.
Yours truly,
“Jeremy Wilton” “MacGyver Edwards”
The preliminary hearing
[25] The preliminary hearing commenced on July 16, 2010. Mr. Wilton, acting as agent for Mr. Robbins, represented Mr. Edwards at the hearing.
[26] At the outset of the preliminary hearing, Mr. Sapiano explained to the presiding justice that “there’s a potential for an apparent conflict arising in this case, but it actually wasn’t a conflict …” Mr. Sapiano described his conversation with Mr. Edwards as “not of sufficient duration for, or of any content that would produce a conflict.” Mr. Sapiano produced the above letter, which was marked as an exhibit. The preliminary hearing then proceeded. The issue of whether Mr. Sapiano was in a position of a conflict of interest was not raised again until the first day of this trial, January 7, 2013.
[27] As Mr. Levy pointed out in his submissions on this motion, it is apparent that at the time of the preliminary hearing, all counsel were of the view that Mr. Sapiano could act for Mr. Lall without being in a position of conflict. However, Mr. Levy also pointed out that the issue of a lawyer’s ongoing duty of loyalty to a former client was never discussed. Mr. Levy’s focus or concern at the time was on the duty of confidentiality, which he felt had been adequately addressed by the letter.
[28] Mr. Levy noted that, in hindsight, Mr. Lall should have received independent legal advice prior to the preliminary hearing with respect to Mr. Sapiano continuing to act for him. Mr. Lall did receive independent legal advice during the course of this motion and has confirmed that he wishes to have Mr. Sapiano represent him at his trial.
[29] The preliminary hearing was completed on October 28, 2011. Prior to its completion, on February 11, 2011, Mr. Robbins joined Mr. Gorham’s firm and presumably took Mr. Edwards’ file with him. Mr. Gorham is the lawyer from that firm who is now conducting the trial on Mr. Edwards’ behalf.
The timing of this application
[30] In R. v. Brissett (2005), 2005 CanLII 2716 (ON SC), 74 O.R. (3d) 248 (S.C), Hill J., at para. 23, stated the following with regard to the timing of an application to disqualify counsel for a conflict of interest:
While an application to have the court disqualify counsel for conflict can be made at any time, the conflict should be “raised at the earliest practicable stage”: R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, 168 C.C.C. (3d) 321 (S.C.C.) at 339. When the prosecution has notice of sufficient facts to found the application the disqualification motion should be brought on notice “well before the start of the trial”: R. v. Bilmez (1995), 1995 CanLII 1385 (ON CA), 101 C.C.C. (3d) 123 (Ont. C.A.) at 124; R. v. Edkins, 2002 NWTSC 9, [2002] N.W.T.J. No. 8 (S.C.) at para. 7; R. v. Chen et al. (2001), 2001 CanLII 28044 (ON SC), 53 O.R. (3d) 264 (S.C.J.) at 271.
[31] The timing of the present application is indeed unfortunate. As stated earlier, the issue of whether Mr. Sapiano had a conflict of interest was not raised by Mr. Gorham until the first day of trial, on January 7, 2013, and without notice to any of the parties.
[32] The issue arose when Mr. Levy, during his opening remarks to the court, produced the letter of June 15, 2010, which he referred to as a waiver, and asked Mr. Gorham to confirm that Mr. Edwards still had no difficulty with Mr. Sapiano acting for Mr. Lall. Mr. Gorham then outlined for the first time his position; that is, that the letter is not sufficiently clear and unequivocal to constitute a waiver of the duty of loyalty that a lawyer owes to a former client and, in fact, makes no specific reference to that duty; that said duty prevents the lawyer from taking an adverse position against the client; and, that a client cannot waive such a duty in any event. When Mr. Sapiano stated that he would and could not undertake to refrain from taking a position adverse to that of Mr. Edwards, it became clear that this motion had to be heard and decided, notwithstanding the lack of notice. Whether or not the letter constitutes a valid waiver, it is clear from Mr. Edwards’ current position that he is seeking to revoke it.
[33] Mr. Gorham explained why he did not raise this matter earlier. He stated that he was unaware of the letter of June 15, 2010 and Mr. Sapiano’s potential conflict of interest until January 1, 2013. For some reason, Mr. Edwards’ file did not contain the letter or any reference to Mr. Sapiano having interviewed Mr. Edwards. Although the letter was made an exhibit at the outset of the preliminary hearing on July 16, 2010, Mr. Gorham did not receive the transcript for that day’s proceedings until the first week of January 2013.
[34] Mr. Gorham advised the court that after learning about the interview and the letter on January 1st, he spoke to Mr. Wilton. Unfortunately, Mr. Wilton does not have a sufficiently clear memory regarding the preparation of the letter to assist in this matter; however, his general impression at the time was that Mr. Lall’s defence would not be antagonistic to that of Mr. Edwards. Mr. Gorham attempted to contact Mr. Robbins, who is currently out of town. He was not successful in reaching him.
[35] On January 2 or 3, 2013, Mr. Gorham called Mr. Levy and inquired about the substance of the letter. Mr. Levy then read the letter to Mr. Gorham over the telephone. Mr. Levy confirmed that he had such a conversation with Mr. Gorham.
[36] I accept Mr. Gorham’s explanation that the letter and potential conflict of interest only came to his attention on the eve of the trial. Mr. Gorham, as counsel for Mr. Edwards, had a duty to canvas these matters fully with his client so that Mr. Edwards could make an informed decision regarding same. That said, the timing of this motion is, as already stated, most unfortunate.
[37] A great deal of time, energy and expense has been invested in bringing this case to trial, which is scheduled to last six to eight weeks. I am advised that the Crown anticipates calling about 60 witnesses. Some of the civilian witnesses are reluctant to testify and have been difficult to locate. In some instances, material witness warrants have been issued. A special panel of 400 potential jurors was summoned to attend at the courthouse on January 11, 2013, specifically for the purpose of selecting a jury in this case. Both accused have been in custody awaiting their trial for about 3 ½ years. Disqualifying Mr. Sapiano from acting for Mr. Lall would result in the trial being delayed for at least another year. Such a delay is not in the best interests of any of the parties.
Issues
Was there a solicitor-client relationship between Mr. Edwards and Mr. Sapiano?
[38] The first issue to be determined on this motion is whether there was a solicitor-client relationship between Mr. Sapiano and Mr. Edwards.
[39] Michel Proulx and David Layton in Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001), at p. 310, states:
Where counsel for an accused has had previous contact with a Crown witness or a co-accused, but was never retained, there may be a preliminary issue as to whether communications occurred in the context of a client-lawyer relationship. If there was no such relationship, no fiduciary duty exists and the attendant obligations of loyalty, and hence confidentiality, ordinarily cannot arise. It is important to remember, however, that a client-lawyer relationship is formed as soon as a potential client has his or her first dealings with a lawyer in order to obtain legal advice, and does not in any way depend upon the existence of a formal retainer.
On the other hand, by no means does every contact with a lawyer result in a client-lawyer relationship. Such a relationship arises only where the exchange of information can be seen to have occurred for the purpose of obtaining legal advice. The existence of this precondition is determined by adopting the perspective of a reasonable member of the public who is fully informed of the circumstances. The subjective belief of the person consulting the lawyer is thus not governing on the point. [Emphasis added].
[40] The above passages were adopted by the Court of Appeal in R. v. M.Q., 2012 ONCA 224, 110 O.R. (3d) 276 (C.A.), at para. 29.
[41] The authors of Ethics and Canadian Law, at p. 311, emphasize that courts will not rely on technical and esoteric analyses to avoid finding that a client-lawyer relationship exists:
It warrants emphasis, however, that courts will not rely on technical and esoteric analyses to avoid finding that a client-lawyer relationship exists and thus permit counsel to escape a conflict problem. Moreover, some rules of professional conduct impose a duty of care on a lawyer to ensure that an unrepresented person is not proceeding under the impression that his or her interest will be protected by the lawyer.
[42] That the client-lawyer relationship may be established without formality is the subject of a commentary under Rule 1.02 of the Rules of Professional Conduct of the Law Society of Upper Canada (“Rules”), which states:
A solicitor and client relationship is often established without formality. For example, an express retainer or remuneration is not required for a solicitor and client relationship to arise. Also, in some circumstances, a lawyer may have legal and ethical responsibilities similar to those arising from a solicitor and client relationship. For example, a lawyer may meet with a prospective client in circumstances that impart confidentiality, and, although no solicitor and client relationship is ever actually established, the lawyer may have a disqualifying conflict of interest if he or she were later to act against the prospective client. It is, therefore, in a lawyer’s own interest to carefully manage the establishment of a solicitor and client relationship.
[43] In my view, there can be no question that a solicitor-client relationship between Mr. Sapiano and Mr. Edwards was formed as a result of the interview at the jail on November 4, 2009. It is clear that Mr. Edwards’ dealings with Mr. Sapiano were for the purpose of obtaining legal advice. Mr. Edwards, who had just turned eighteen, was in custody and charged with first degree murder. His mother contacted Mr. Sapiano regarding legal representation for her son on that charge. Mr. Sapiano, in response, attended at the jail and interviewed Mr. Edwards for over an hour. After the interview, it was Mr. Sapiano’s intention to act for Mr. Edwards. He communicated this intention to duty counsel at Mr. Edwards’ next court appearance.
[44] The letter dated June 15, 2010, confirms that during the interview, there was an exchange of information for the purpose of obtaining legal advice. Mr. Edwards discussed the case with Mr. Sapiano, although not “in any detail.” The “issue of bail and possibility of release” was also discussed. As Mr. Gorham pointed out in his submissions, a discussion between a lawyer and his or her client regarding bail usually involves a great deal of personal information about the client, including prior contacts with the police, prior criminal activity and potential sureties. Other topics germane to the issue of bail, particularly in a murder case, include the strength of the Crown’s case, whether there are any potential defences, such as an alibi (a subject Mr. Edwards raised during his police interview), and whether any potential witnesses should be contacted quickly.
[45] Mr. Sapiano is not entitled to divulge what particular topics he discussed with Mr. Edwards relating to bail or the case, what information he received from him, or what advice he gave to Mr. Edwards on November 4th. However, the matters mentioned above are matters that a reasonable member of the public would expect to be discussed during an initial consultation with an accused person who is seeking advice regarding bail on a first degree murder charge.
[46] I find that a solicitor-client relationship was formed between Mr. Sapiano and Mr. Edwards as a result of the interview at the jail.
The duty of loyalty owed by a solicitor to a former client
[47] A solicitor’s duty of loyalty to a former client is not tied exclusively to the duty of confidentiality. This principle was made clear in Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2010 ONCA 788, [2010] O.J. No. 4996. In that case, Doherty J.A., in allowing a motion to remove counsel of record, held that when a lawyer acts against a former client in the same matter, there is a concern that public confidence in the integrity of the legal profession and the administration of justice may suffer. At paras. 25-29 of his judgment, he stated:
This court long ago recognized a broad obligation not to act against former clients in the same dispute. In Re R. and Speid (1983), 1983 CanLII 1704 (ON CA), 43 O.R. (2d) 596, a very strong panel of this court dealt with a Crown motion to disqualify the accused’s lawyer. That lawyer’s partner had acted for the accused’s wife in the same investigation. She was now a principal Crown witness.
Dubin J.A., speaking for himself, Martin J.A. and Robins J.A. (both former Treasurers of the Law Society), said this at p. 600:
A client has a right to professional services. Ms. Nugent [the witness] had that right as well as Mr. Speid [the accused]. It was fundamental to her rights that her solicitor respect her confidences and exhibit loyalty to her. A client has every right to be confident that the solicitor retained will not subsequently take an adversarial position against the client with respect to the same subject matter that he was retained on. That fiduciary duty, as I have noted, is not terminated when the services rendered have been completed. [Emphasis added.]
Speid and similar cases have been aptly described by P. Perell (now Perell J.) in Conflicts of Interest in the Legal Profession (Toronto: Butterworths, 1995) at pp. 38-42 as the “turncoat cases”. In these cases, disqualification is not based on confidentiality concerns but rather “the need to foster and maintain public confidence in the integrity of the legal profession and in the administration of justice.”
Mr. Underwood, in his effective submissions, tries to distinguish Speid by pointing out that there was a very real and obvious conflict between the witness and her former lawyer. Her former lawyer was testifying at the accused’s trial and revealing statements made to him by the witness for the purpose of discrediting her.
It is true that Speid involved an actual breach of confidentiality and a blatant conflict of interest. I do not think, however, those aggravating factors detract from the general application of the principle set out in the passage quoted above. Dubin J.A. clearly does not tie the duty of loyalty exclusively to the duty of confidentiality.
[48] As a result of the solicitor-client relationship that existed between Mr. Sapiano and Mr. Edwards, Mr. Sapiano had a duty to respect Mr. Edwards’ confidences. He also had a duty not to take an adversarial position against Mr. Edwards on the same subject matter about which Mr. Edwards sought his legal advice, that is, the charge of first degree murder of Mr. Mojaddedi. That fiduciary duty was not terminated when Mr. Sapiano told Mr. Edwards after his first court appearance that he could not act for him on that charge.
[49] The question arises as to what, if any, significance should be given to Mr. Edwards’ waiver – that is, the letter dated June 15, 2010 – in determining whether Mr. Sapiano should be disqualified from acting for Mr. Lall.
Waiver
[50] The existence of a waiver by a former client is not necessarily determinative of the issue as to whether a solicitor should be disqualified from acting for a co-accused.
[51] In R. v. Robillard, 1986 CanLII 4687 (ON CA), [1986] O.J. No. 261 (C.A.), the accused appealed from an order dismissing his application to quash an order made removing his counsel from the record at a preliminary hearing into a charge of robbery. The counsel had acted in a related matter for a person the Crown intended to call as a witness. The counsel had obtained a waiver of the duty of confidentiality and loyalty from the proposed witness; however, the waiver was not expressed to be irrevocable, nor had the proposed witness received independent legal advice before signing it.
[52] In dismissing the appeal, the Court held that even if the waiver of confidentiality had not been vitiated by the absence of independent legal advice, the public interest in fairness in the conduct of the trial and in the avoidance of any appearance of impropriety required that the counsel be disqualified from acting for the accused. The Court stated at p. 5 as follows:
We are all of the view that, even if the waiver of confidentiality had been obtained without being vitiated by the absence of independent legal advice, it would still not provide a complete answer to the Crown’s contention. The Court is always required to consider the public interest and the need for public confidence in the administration of criminal justice. As pointed out by Mr. Justice Martin in R. v. Hargraves (1982), 1982 CanLII 3746 (ON CA), 69 C.C.C. (2d) 380 at p. 384, relying on a statement of Mr. Justice Kellock in R. v. Morabito, 1949 CanLII 1 (SCC), [1949] S.C.R. 172, “[t]he public has an interest in the proper trial of accused persons.” It is in the interest of the public as well as the accused that the fundamental rules of a fair trial be observed.
Public confidence in the criminal justice process would surely 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. The process by which the waiver was obtained in this case, the possibility that the witness may attempt to withdraw the waiver during cross-examination and the very existence of the waiver can undermine the necessary public confidence in the administration of justice. This confidence rests on the fundamental fairness of the preliminary inquiry and criminal trial process. It requires not only the avoidance of professional impropriety but also the avoidance of any appearance of impropriety.
This does not mean that counsel who has represented a Crown witness in the past would necessarily, in all situations, be in a position of conflict of interest in cross-examining the witness at a later date. Whether or not counsel would be precluded from continuing to act would depend on the particular facts of the case.
[53] In R. v. Brown, [1998] O.J. No. 6270 (O.C.J. (Gen. Div.)), the Crown brought a motion for an order removing counsel of record for the accused Francis. The counsel, Mr. Midanik, had earlier represented the co-accused Jones, against whom the charges had been stayed. Jones was therefore a competent and compellable witness at the trial. Jones, with the assistance of independent counsel, had waived the right of confidentiality and the right to the loyalty of Mr. Midanik arising from the solicitor-client relationship. Despite the existence of the waiver, Trafford J. allowed the motion and ordered Mr. Midanik removed as counsel of record. At para. 15, he noted that the weight to be given to a waiver, which is revocable, is only one of the circumstances to be considered by the trial judge:
… In ruling on such an application it is important to be mindful of the principles underlying this rule of law – the need to maintain the high standards of the legal profession and the integrity of the justice system balanced against the right of a litigant not to be deprived of counsel of choice without good cause. All of the circumstances of the case must be considered including the existence, if any, of a waiver prepared with the assistance of independent counsel. It is, of course, revocable. See Regina and Robillard, supra. The weight to be assigned to it is a task for the trial judge. …
[54] In Brown, there were a number of risks of a conflict of interest emerging at the trial that would result in a mistrial. In these circumstances, Trafford J. declined to give any weight to Jones’ waiver.
[55] In the present case, Mr. Gorham raised a number of concerns regarding the letter of June 15, 2010. He noted, for example, that there is no specific reference to the duty of loyalty. However, even assuming that the letter constituted a proper and informed waiver of both the duty of confidentiality and the duty of loyalty, it is clear from Mr. Edwards’ current position, whether as a result of having heard and considered the evidence called at the preliminary hearing and/or having discussed his case in further detail with his counsel, he is effectively revoking any waiver that he may have given. Mr. Edwards is not content to proceed to trial on a charge of first degree murder and be placed in a position where Mr. Sapiano takes a position adverse to his interest through cross-examination of him or any other witness – a scenario that, according to all counsel, is quite likely or probable.
[56] In these circumstances, and given the public interest in fairness in the conduct of the trial and the avoidance of any appearance of impropriety, I would not give any significant weight to the waiver in the form of the June 15th letter. In my view, the overriding concern in this case is public confidence in the criminal justice process. A consideration of the decision in Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22, 263 N.S.R. (2d) 272, which is referred to by Doherty J. A. in Consulate Ventures Inc. at paras. 30-31, further strengthens my view in this regard.
[57] In Brookville Carriers Flatbed GP Inc., the law governing the disqualification of lawyers who purport to act against former clients was discussed in some detail. In that case, a lawyer purported to act against a former client in a different but related lawsuit. There was no risk that the lawyer could compromise his former client’s confidences by acting against him in the second lawsuit. Nevertheless, Cromwell J.A., speaking for the court, held that the lawyer was properly disqualified. After reviewing the case law and the authoritative texts, he concluded that a lawyer’s duty of loyalty to a former client was rooted in both confidentiality concerns and the need to foster and maintain public confidence in the client/solicitor relationship and the due administration of justice. At para. 51, he stated:
… This broader continuing duty of loyalty to former clients is based on the need to protect and promote public confidence in the legal profession and the administration of justice. What is of concern is the spectre of a lawyer attacking or undermining in a subsequent retainer the legal work which the lawyer did for the former client or of a lawyer effectively changing sides by taking an adversarial position against a former client with respect to a matter that was central to the previous retainer.
[58] The concern in the present case is the spectre of Mr. Sapiano, in his role as counsel for Mr. Lall, attacking or undermining the defence of Mr. Edwards, his former client, at Mr. Edwards’ trial for first degree murder, which is the most serious offence in the Criminal Code. Such a development would surely undermine the public confidence in the legal profession and the integrity of the justice system.
Duty of confidentiality
[59] There is also a concern in this case with respect to the duty of confidentiality. Mr. Sapiano interviewed Mr. Edwards at the jail for over an hour, during which time the case was discussed although, according to the letter of June 15, 2010, not in any detail. The focus of the meeting was on the issue of bail.
[60] In MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, the Court considered the test to be applied when determining whether there is a disqualifying conflict of interest. The use of confidential information is not a matter usually susceptible of proof. Thus, the test is whether the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur. Two questions must be answered:
(1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?
(2) Is there a risk that it will be used to the prejudice of the client?
[61] In considering these questions, Sopinka J., speaking for the majority, stated at paras. 46 and 47 as follows:
… In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. This will be a difficult burden to discharge. Not only must the court’s degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication. Nonetheless, I am of the opinion that the door should not be shut completely on a solicitor who wishes to discharge this heavy burden.
The second question is whether the confidential information will be misused. A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail. The lawyer cannot compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere. Furthermore, there would be a danger that the lawyer would avoid use of information acquired legitimately because it might be perceived to have come from the client. This would prevent the lawyer from adequately representing the new client. Moreover, the former client would feel at a disadvantage. Questions put in cross-examination about personal matters, for example, would create the uneasy feeling that they had their genesis in the previous relationship.
[62] In the present case, Mr. Sapiano has not discharged the heavy burden of establishing that confidential information was not imparted during his meeting with Mr. Edwards on November 4, 2009. As noted above, the letter of June 15, 2010, makes it clear that the case, at least to a certain degree, was discussed, as well as the matter of bail. It is reasonable to infer that a discussion of bail on a first degree murder charge would include information regarding Mr. Edwards’ personal background, his criminal antecedents, potential sureties, and the strength of the Crown’s case, including potential defences and witnesses.
[63] Pursuant to MacDonald Estate, Mr. Sapiano’s possession of such “relevant confidential information” automatically disqualifies him from acting for Mr. Lall, whose position may well be adverse to that of Mr. Edwards during the trial. Even if Mr. Sapiano were prepared to undertake not to use the confidential information, such an undertaking would be of no avail for the reasons outlined above by Sopinka J. Mr. Sapiano could not be expected to “compartmentalize” his mind so as to screen out what has been gleaned from Mr. Edwards and what was acquired elsewhere.
[64] In the event that Mr. Edwards testifies and denies that he shot Mr. Mojaddedi, Mr. Sapiano, as counsel for Mr. Lall, would no doubt attack Mr. Edwards’ credibility with a view to establishing that Mr. Edwards was, in fact, the shooter. Questions put to Mr. Edwards about his personal background during such a cross-examination would inevitably, as stated by Sopinka J., “create the uneasy feeling that they had their genesis in the previous [solicitor/client] relationship,” thereby undermining public confidence in the legal profession. For members of the public to have confidence in that profession and the administration of justice, they must know that their confidences will be respected and not used against them in the future for the benefit of another client.
[65] On the other hand, Mr. Sapiano’s failure to put such questions to Mr. Edwards could potentially deny the right of Mr. Lall to the effective assistance of counsel. Such a development could lead to a mistrial, which would tend to undermine the public confidence in the ability of the court to conduct the trial in an orderly and fair manner.
[66] In these circumstances, Mr. Edwards’ waiver, which he has effectively revoked in any event, ought not to be accorded much, if any, weight.
The right to counsel of choice
[67] In determining this application, I have considered Mr. Lall’s right to retain counsel of his choice, which has long been recognized at common law as a fundamental right and has been inferentially entrenched in the Charter of Rights: Speid, at para. 5. However, the right is not an absolute right and is subject to reasonable limitations. Mr. Lall has a right to professional advice, but he has no right to counsel who, by accepting the brief, cannot act professionally: Speid, at para. 16.
Conclusion
[68] Applications to disqualify lawyers require the court to balance the maintenance and integrity of the justice system, the rights of the litigants to counsel of choice, and the desirability of preserving mobility within the legal profession. Of these factors, the most important and compelling is the preservation of the integrity of our system of justice: Consulate Ventures Inc., at para. 35, where Doherty J.A. refers to Cory J.’s concurring judgment in MacDonald Estate, at paras. 57-58.
[69] A consideration and balancing of the above factors in the present case, in the context of the realistic risk that Mr. Edwards and Mr. Lall will take adverse positions against each other during the trial, dictate that Mr. Sapiano cannot act for Mr. Lall, given his previous solicitor/client relationship with Mr. Edwards.
[70] The motion is granted. Mr. Sapiano is thereby disqualified from acting for Mr. Lall.
GARTON J.
Released: February 6, 2013
COURT FILE NO.: 11-30000715
DATE: 20130206
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
TRISTAN LALL and MacGYVER EDWARDS
RULING
GARTON J.
Released: February 6, 2013