ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1741/13
DATE: 20141230
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARY ALICE MUSCAT and
STEVEN TERRENCE KELLY
MICHAEL ROBB, for the Federal Crown
KRISTA LESZCZYNSKI and MICHAEL CARNEGIE, for the Provincial Crown
SHARON MURPHY, for Mary Muscat
W. GLEN ORR, for Steven Kelly
HEARD: December 2 and 29, 2014
DESOTTI, J.
A. The Applications
[1] The Crown brought an application to have counsel, a Mr. W. Glen Orr, who was retained by Steven Kelly, removed as solicitor for Steven Kelly as a result of a conflict with a central Crown witness, a Krystal Gilbert, who had also retained Mr. Orr as her counsel. Although the charges against the accused, Gilbert are unrelated to the charges against the accused, Kelly, there was a commonality of interaction between the two and a mutual friend in Kelly’s co-accused, Mary Muscat.
[2] Mr. Glen Orr was retained by Steven Kelly at the end of May of 2013, and Ms. Krystal Gilbert retained Mr. Glen Orr on July 15th, 2013 until sometime in January of 2014. As a result of an interview given on July 26th, 2013, and a second interview on August 9th, 2013, without notice to the accused’s lawyer, Mr. Orr, Ms. Gilbert gave statements that clearly implicated both Mr. Kelly and Ms. Muscat.
[3] In Mr. Orr’s reply to this application, he sought an order to stay the charges against the accused Steven Kelly pursuant to section 24 (1) of the Charter of Rights and Freedoms, as a result of the accused’s rights which were said to have been violated pursuant to sections 7 and 11 (d) of the same Charter. Additionally, was an alternative application under section 24 (2) of the Charter of Rights and Freedoms to exclude the evidence of Ms. Krystal Gilbert at trial.
[4] The charges against the accused, Steven Kelly are as follows:
Unlawful confinement, contrary to s. 279 (2) of the Criminal Code;
Aggravated assault, contrary to s. 268 of the Criminal Code.
[5] Companion to that application by the accused Steven Kelly is an application by the co-accused, Ms. Mary Muscat who brings a similar application to stay the charges against her under section 24 (1) of the Charter based on the violation of rights under sections 7 and 11 (d) of the same Charter or alternatively under section 24 (2) of the Charter to exclude the evidence of Ms. Krystal Gilbert at trial on the basis that to admit her evidence would violate Ms. Muscat’s rights under sections 7 and 11 (d) of the Charter.
[6] The issue is not whether Mr. Orr should be removed as counsel for Steven Kelly as a result of this obvious conflict, but whether Mr. Kelly’s rights have been compromised as a result of being denied counsel of choice. In this sense, counsel for Mr. Kelly, Mr. Orr, does not dispute that a perceived obvious conflict exists but that in his removal as counsel of choice to Steven Kelly based on what he describes as an improper interrogation of his client at the time, Krystal Gilbert, Mr. Kelly’s Charter Rights under s. 7 and 11 (d) would be violated with a stay of his charges as an appropriate remedy.
[7] Ms. Muscat, on the other hand, is not deprived of her counsel of choice but brings her application because her counsel did not receive the transcript of the interviews of Ms. Gilbert that had taken place on July 26th and August 9th, 2013 until September 10th, 2014. The trial of both these matters were scheduled for November 17th, 2014, but with a change of counsel by the accused, Muscat to Ms. Murphy, this left only 9 weeks to prepare for this trial. I should also indicate that the charges were laid on April 23rd, 2013 and the preliminary hearing commenced on November 26th, 2013 finishing on December 18th, 2013.
[8] No disclosure of these two statements was made known to defence counsel throughout the preliminary hearings and thus counsel was not able to cross-examine any witnesses at the preliminary hearing about these two statements or even investigate the contents of these statements. In this sense, the accused, Mary Alice Muscat submits that Sarnia Police Services and the respective Crown Offices acted in bad faith.
[9] The charges against Ms. Mary Muscat are as follows:
Forcible confinement, contrary to s. 279 (2) of the Criminal Code;
Aggravated assault, contrary to s. 268 of the Criminal Code;
Attempted murder, contrary to s. 239 of the Criminal Code;
Possession of a controlled substance for the purpose of trafficking, contrary to s. 5 (2) of the Controlled Drugs and Substances Act.
[10] The only other significant issue is that counsel of record for the accused, Mary Muscat, Ms. O’Malley, was removed as counsel on September 4th, 2014. Ms. Sharon Murphy who was going to become new counsel for the accused indicated that she would bring an application for an adjournment of the trial in order to review the disclosure and prepare for trial. This meant that the trial that had been scheduled for November 17th, 2014 was going to be delayed because of this change of counsel.
[11] Presently, the new trial is scheduled for March 23rd, 2015 and without a doubt, given that the Mr. Kelly’s solicitor will be removed as counsel, a new trial date will have to be obtained for both Mr. Kelly and Ms. Muscat, in order to allow Mr. Kelly’s new counsel time to review the disclosure, subject of course to the success of their respective stay applications.
B. The Analysis
[12] A review of the July 26th, 2013 statement clearly reflects an intimidating interview that holds out inducements and promises to the accused, Krystal Gilbert and in many instances undermines the accused’s relationship with her lawyer, Mr. Orr. On a number of occasions, Officer Skin indicates to Ms. Gilbert that Mary Muscat obtained Mr. Orr on her behalf and affirms that Mr. Orr also was acting for Mr. Kelly.
[13] On other occasions, the Officer indicates and her lawyer wouldn’t be doing the jail time and that Ms. Gilbert would not be in any “good bargaining position”. The Officer also questioned the ethics of her lawyer when he stated “whose interest are being protected, yours or somebody else’s”.
[14] As well, the Officer does indicate on other occasions that his inducements of a lighter or better sentence that is offered to the accused, Krystal Gilbert, was with the approval of both the Federal and provincial Crown Attorneys’ Office.
[15] Clearly, the message given to Ms. Gilbert was that her lawyer would not adequately protect her interests. There is no question that this type of suggestion by the Officer would impair and compromise her relationship with Mr. Orr as would the comprehensive content of either interview if known to her counsel.
[16] However, the end result of this conduct, these two interviews, would be precisely the conflict that is presently before me. More importantly, the minute any offer of a reduction in sentence on the basis of Ms. Gilbert’s cooperation as a witness in the charges against Mr. Kelly and Ms. Muscat, would necessitate an end to their relationship and his relationship as counsel for the accused, Kelly.
[17] While both counsel for both accused question the timing of the disclosure and conclude that a much earlier disclosure would have allowed for a more comprehensive question and answer process at the preliminary hearing, the rationale for withholding this disclosure was out of concern for safety of this witness. He states at paragraph 30 as follows:
The two statements provided to the police by Ms. Gilbert were withheld by the Federal Crown, Mr. Michael Robb, given the very serious safety risks faced by Ms. Gilbert after she had provided the aforementioned incriminating statements against both Muscat and Kelly and while she remained out of custody on bail.
[18] The resolution of Ms. Gilbert’s sentence on August 5th, 2014 that placed her in a federal penitentiary for a four year prison sentence and as the Officer indicates at the same paragraph 30 “wherein her safety could be properly ensured” was the rationale for the withholding of the disclosure. I would note that 36 days later her two statements were disclosed to the accused Kelly and Muscat.
[19] Moreover, had Ms. Gilbert challenged the voluntariness of her statements, or that the manner in which they were obtained had breached her rights under the Charter, I would have easily found a section 24 (2) remedy in her favour. Obviously, she did not want such a remedy and entered pleas of guilt with her newly appointed solicitor probably, I infer, knowing that she had resolved her criminal difficulties in an advantageous manner. In short, Krystal Gilbert does not and did not complain about any abuse of process!
[20] Do the two accused, Kelly and Muscat, somehow ‘shelter’ under the rights that Ms. Gilbert should have been afforded? Alternatively, because of the impact to the accused Kelly, who now must forego the lawyer of his choice and the timing of his trial in March, and Muscat losing out on perhaps some different questions and answers at the preliminary hearing and also having to change the date of her trial, does this result in an abuse of process and a resulting stay of the charges?
C. A Review of the Authorities
[21] In R. v. O’Connor, a decision of the Supreme Court of Canada, no stay was granted where the Crown had not provided certain therapy records. Most importantly, at paragraph 74, the Court concluded that where there has been non-disclosure by the Crown, the accused must show “actual prejudice to the accused’s ability to make full answer and defence”. In O’Connor, the failure to disclose to defence counsel occurred just before and during the actual trial, and yet because of the nature of the materials that were not filed, the Court held that a stay should not be granted. In R. v. Regan, the Supreme Court of Canada indicated at paragraph 54 that a stay of proceeding would only be granted if the following two criteria were met:
The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;
No other remedy is reasonably capable of removing that prejudice.
[22] In R. v. Babos a third residual criteria was proffered by the Supreme Court of Canada at paragraph 32 as follows:
Whether there is still uncertainty over where a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in a final decision on the merits”.
[23] I would note that on the facts in Babos, there was an indication that the police officers had colluded on a material piece of evidence and that the Crown had used bullying conduct on the accused to have him enter a plea of guilt. Nevertheless, a full stay was not granted and the matter was returned for trial with certain evidence excluded from the consideration of the court.
[24] In R. v. Jageshur, the Ontario Court of Appeal at paragraph 19 with respect to the actions of police officers conducting a reverse sting operation and thus selling cocaine to the accused indicated:
The ultimate question is not legality, but whether the police conduct was sufficiently egregious so as to shock the conscience of the community and demand that the court not lend its process to a prosecution flowing from such conduct.
A new trial was ordered when a stay of proceedings was ordered by the trial judge.
[25] In R. v. Morgan, over an eight hour period one eyewitness was vigourously questioned by police such that at the end of his questioning he changed his initial statement that the accused was with him inside a night-club at the time of the shooting outside the same night-club. This oppressive conduct on the part of the police required this court to direct that this change in this witness’ answer could not be used in court and was thus unreliable and had no probative value.
[26] As a side note, this decision has been subsequently overturned and the accused party who was found guilty during the trial has now been found to be not guilty precisely because of the abusive interviews by police with respect to a number of civilian witnesses.
D. Decision
[27] With respect to the delay that will be occasioned to allow new counsel to be obtained for the accused, Steven Kelly and the relinquishment of the March 23rd, 2015 trial date, it may be that this delay will cause a separate application for a stay of proceedings for delay of the hearing of the trial. Certainly, the termination of the first trial date on November 17th, 2014 was at the instance of the accused’s new counsel who had been recently retained and had nothing to do either of the Crown Attorneys.
[28] The application to remove Mr. Orr and the timing of same certainly could have been anticipated after the disclosure and therefore the timing for a hearing and determination with respect to this issue, after the March 23rd, 2015 trial date was selected, also can be reviewed to determine if the delay is systemic and thus contrary to the Charter.
[29] Frankly, other than delay, I do not see how the conduct between the Officer and Ms. Gilbert or the delay in producing the statements has negatively impacted on the accused, Mary Muscat. While it is true that she didn’t have those statements at the preliminary hearing, there is nothing in her factum that has been presented that would indicate trial unfairness such as the ability to fully answer and defend the charges before the court.
[30] The failure to disclose those statements by the Crown had some meaningful rationale, while the accused Krystal Gilbert was out on bail, such as her own personal safety. Given the allegations before the court, I conclude that at least for that one purpose there can be no successful abuse of process application by counsel for Ms. Muscat.
[31] What is most interesting in reviewing all of the cases before me is the factual underpinnings occasioned by police officers or the conduct of the Crown that resulted in the granting of a stay.
[32] Improper conduct of police officers that resulted in the granting of a stay of proceedings can be summarized as follows:
- Fabricating evidence against an accused;
- Physically assaulting an accused;
- Physically assaulting an accused and then lying about how the injuries were obtained;
- Oppressive interviewing of a witness or an accused where they are denied sleep, food, refreshments or bathroom breaks;
- Collusion of note-making and then lying about how or why notes or statements were altered;
- Failure to disclose statements made by an accused or witness that would or could change a prosecutorial position or determination.
[33] Improper conduct of Crown Attorneys:
- Attempting to bully a witness or an accused, see Mr. Amenta in R. v. I.B.;
- Purposefully withholding disclosure information from counsel without any rationale except prosecutorial success;
- Failure to disclose relevant evidence due to negligence or sub-standard process that cannot be saved by a less significant remedy.
[34] There are probably many other circumstances that might make this list of criteria that would invite a judicial stay but those would be the primary factual realities that arose in the many cases that were presented to me and mandated a significant court intervention.
[35] With respect to Mr. Steven Kelly and his lawyer, Mr. Orr, it is clear that the accused, Krystal Gilbert was induced, enticed and persuaded to ignore her lawyer’s advice and ‘come to the light’. If that was the only shortcoming in the process, no further comments would be needed. She waived her right to discuss this matter, she heard the ‘siren song’ and obviously benefited with an excellent and lenient sentence.
[36] The problem I have is not the inducement or the indication that the Crown was behind this inducement by the investigating Officer but the indication in the questioning about the sincerity of purpose of her counsel and the suggestion that he was not looking out for her best interest. This was a false statement and coloured the otherwise positive inducements proposed to attract a statement from this accused.
[37] As I stated already, the issue of voluntariness or Charter breach can only be relied on by the accused, Krystal Gilbert. Had she exercised that option, the statements would have been excluded.
[38] What unfortunately was done here in besmirching her counsel was to call into play not only his integrity as a lawyer, looking out for the best interests of his client, but the entire criminal justice process. This step, this bit of puffery, was unnecessary to achieve the desired result.
[39] Placing an obstacle, such as a lawyer’s integrity to his/her client, is not a thin edge of a wedge but could have the effect of creating undo friction between counsel and the accused such as to pre-determine an outcome by selection of counsel out of the intervention or interaction by police. “You got a real good lawyer” or “your lawyer is useless, inexperienced, a slacker, ineffective”, or as it occurred here “not looking out for your best interests”.
[40] This is decidedly troublesome matter and had the Officer purposely intended to drive a wedge between Mr. Orr and his client, I would probably conclude that that conduct would amount to abusive conduct or behaviour worthy of a judicial stay. As it turns out, having carefully reviewed the 2 written statements by Ms. Gilbert, I do not come to the conclusion that this was purpose behind those comments but were simply made as a further inducement to provide a statement implicating the accused Ms. Muscat.
[41] However, that does not end the matter. The accused now must find other counsel and he remains in custody awaiting his trial. Short of a stay of proceeding, I would invite new counsel at the conclusion of the matter to explore other remedies, particularly if at the end of a trial a conviction is entered. As stated, this type of unnecessary rhetoric by this Officer does require some judicial intervention, short of a stay or the exclusion of Ms. Gilbert’s evidence against either the accused Kelly or Muscat. I will leave that to other capable counsel chosen by the accused, Steven Kelly, to refer to the provisions of s. 24(1) of the Charter when the aforementioned issue is raised with that court.
[42] Counsel for Mr. Kelly is removed as solicitor of record. A new date will have to be obtained for the trial of this matter. Matter is adjourned to Thursday, January 8th, 2015 @ 9:30 a.m.
“Justice J.A. Desotti”
The Honourable Mr. Justice John A. Desotti
Released: December 30, 2014
COURT FILE NO.: 1741/13
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MARY ALICE MUSCAT and
STEVEN TERRENCE KELLY
REASONS FOR JUDGMENT
DESOTTI, J.
Released: December 30, 2014