ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
B. Richards & S. Beauchamp, for the applicant
Applicant
- and -
DARNELL ST. CLAIR WRIGHT
I. Smith & A. Ohler, for the respondent
Respondent
HEARD: March 12, 2015
Nordheimer J.:
[1] The Crown moves for an order removing Sean MacDonald and Allison Craig as solicitors of record for the respondent, Darnell St. Clair Wright. The respondent is charged with first degree murder in the fatal shooting of Jefflin Beals. The shooting occurred in the early morning hours of October 2, 2011, which also happened to be the Nuit Blanche weekend in Toronto.
[2] The alleged conflict arises from the fact that Mr. MacDonald, subsequent to being retained by the respondent on the murder charge, accepted as a client, Sanderico Beals (no relation to the deceased Jefflin Beals), who is, as it happens, a friend of the respondent. The retainer for Sanderico Beals dealt with certain weapons charges that were laid against Mr. Beals. It is of some importance to note that those charges are expected to be withdrawn against Mr. Beals within the next week.
[3] The concern about conflict arises because the Crown has said that it intends to call Sanderico Beals as a witness at the murder trial. It initially appeared that the Crown intended to do so to refute a possible alternate suspect defence. In any event, the Crown says that this would put Mr. MacDonald in an untenable position because, among other reasons, he will be called upon to cross-examine Mr. Beals, his former client.
[4] As a consequence of this motion being brought by the Crown, both Mr. Beals and the respondent have signed waivers of any conflict that might arise from this situation. In particular, Mr. Beals has expressly waived his solicitor/client confidentiality regarding any information that he gave to Mr. MacDonald and consents to Mr. MacDonald using those confidences in any cross-examination that he may be required to conduct of Mr. Beals. Another important fact is that the defence has expressly stated that the alternate suspect to be advanced is not Mr. Beals. If, notwithstanding that admission, the Crown still intends to call Mr. Beals, the respondent says that, if it is necessary to avoid any appearance of conflict, any cross-examination of Mr. Beals can be conducted by Ms. Craig. Further, the respondent specifically confirms that he wishes both Mr. MacDonald and Ms. Craig to represent him on the murder charge as they have been doing for the three and two years past, respectively. Both of these waivers were signed after Mr. Beals and the respondent received independent legal advice from different lawyers.
[5] As I have alluded to, this whole issue began with the defence making it known that they intend to seek the permission of the trial judge to put evidence before the jury regarding an alternate suspect. The Crown was concerned that the alternate suspect might be Mr. Beals with the result that he and the respondent would then be in a direct conflict. That concern, however, has been largely ameliorated, if not eliminated entirely, by the fact that the defence has made it very clear, through sworn affidavits from trial counsel, that Mr. Beals is not the suggested alternate suspect. Indeed, the defence position will be that the alternate suspect is a white male. Both Mr. Beals and the respondent are black males.
[6] As a result of these developments, the Crown’s position appears to have shifted. The Crown now says that there are other possible conflicts that arise from the fact that Mr. Beals is being called as a prosecution witness. The Crown says that it will attempt to demonstrate through Mr. Beals three things: (i) that there was an animus between the respondent and the deceased; (ii) that both Mr. Beals and the respondent were members of a criminal organization in Nova Scotia, where the deceased resided, and that there was a history of conflict between the respondent and the deceased arising from Mr. Beals’, and the respondent’s, membership in that criminal organization; and (iii) the location of Mr. Beals on the night in question. It appears that the last issue is directed at some suggestion that Mr. Beals had some involvement in the murder, although the specifics of that involvement are far from clear. On that point, it should be known that Mr. Beals and the respondent are good friends, that their respective girlfriends are friends and that, at some point after the murder, the respondent, Mr. Beals and their girlfriends were all living in the same residence.
[7] Against that background, I begin with the basic principle that a person has the right to retain counsel of his or her own choosing. That right is not absolute, however. It is subject to the authority of the court to remove counsel of record for good cause. Good cause exists if the counsel is in a conflict regarding the interests of his or her client and of some other person. The authority to remove counsel of record, though, is to be exercised cautiously and only for compelling reasons. The proper approach to the exercise of that authority was expressed by Dubin J.A. in R. v. Speid (1983), 1983 CanLII 1704 (ON CA), 43 O.R. (2d) 596 (C.A.) at p. 598:
In assessing the merits of a disqualification order, the court must balance the individual’s right to select counsel of his own choice, public policy and the public interest in the administration of justice and basic principles of fundamental fairness. Such an order should not be made unless there are compelling reasons.
[8] Part of the problem in determining such a motion in advance of a trial is, of course, that it is not possible to know how the evidence will unfold, what other issues might arise, what Mr. Beals may or may not say during the course of his evidence and a host of other contingencies. This point is made by Doherty J.A. in R. v. W. (W.) (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.) at p. 175:
Where the issue is raised at trial, the court must be concerned with actual conflicts of interests and potential conflicts that may develop as the trial unfolds. In deciding whether counsel should be permitted to act for co-accused, trial judges must, to some degree, speculate as to the issues which may arise and the course the trial will take.
[9] I do not see any basis to conclude that a conflict of interest arises from the potential alternate suspect evidence. For one thing, it is not known whether the trial judge will be satisfied that there is a sufficient evidentiary foundation, that is an “air of reality”, to permit the defence to adduce such evidence. I note that the Crown’s main position is that there is no evidentiary foundation for it. In order to advance such a defence, the evidence must establish a sufficient connection between the alternate suspect and the offence: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27 at para. 46.
[10] The Crown responds by saying that there is no way of knowing whether the defence might change their mind regarding the parameters of the alternate suspect theory during the course of the trial. I accept that a risk exists but it is very much a speculative one. The reality is that not every possible contingency can be protected against. Put simply, there are no guarantees as to how the events of a trial will unfold. I do note, however, that there would be a number of obstacles to any attempt by the defence to change tactics in that way. First, the trial judge would have to be satisfied that there were good and compelling reasons to permit such a last minute change, including being satisfied that there was an evidentiary foundation for it. Second, everyone would be aware that such a change would invite the re-bringing of this very same application. Third, the trial judge would be very conscious that permitting such a change in tactics would almost inevitably result in a mistrial with all of the attendant inconvenience and delay.
[11] At this stage of the proceedings, therefore, I see no adequate foundation for any conclusion that a conflict does, or will, arise from the alternate suspect issue that would justify an order removing Mr. MacDonald and Ms. Craig as counsel for the respondent. The hypothetical risk that the Crown advances is an insufficient reason to grant an order removing counsel in these circumstances.
[12] The other issues raised by the Crown are even more speculative. It is not known what Mr. Beals will say when he gives evidence. Neither the Crown nor the police have any sworn statement from him. Given the relationship between Mr. Beals and the respondent, there is a distinct possibility that Mr. Beals will give evidence that is entirely favourable to the defence such that no, or very little, cross-examination will be necessary. While the Crown may attempt to lead other evidence to call into question the veracity of Mr. Beals on any given point, that evidence would be separate and apart, and not raise any conflict issue, when it comes time for the defence to deal with it.
[13] Nevertheless, I recognize that there remains the possibility that Mr. Beals may give evidence harmful to the defence, in which case cross-examination would have to take a different approach. While that might be problematic given the prior solicitor/client relationship between Mr. Beals and Mr. MacDonald, it remains the fact that Mr. Beals has waived any prohibition regarding any use of confidential information he may have provided to Mr. MacDonald. Further, insofar as the appearance of the cross-examination of a former client is seen as being problematic, notwithstanding that waiver, Ms. Craig can conduct the cross-examination to remedy those appearance concerns. On that point, I note that while Mr. MacDonald and Ms. Craig are co-counsel on the murder charge, they are not otherwise connected, that is, they are from different law firms and they do not share space or have any other like professional connections.
[14] In general, there are two approaches to alleged conflicts that must be considered. One is the bright line rule and the other is the substantial risk principle: Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649. For the bright line rule to be breached, there must be concurrent representation of clients that are adverse in interest. That situation does not arise here as Mr. MacDonald’s representation of Mr. Beals will have ceased by the time that the murder trial commences. Further, there is nothing to establish, at this point, that Mr. Beals and the respondent are adverse in interest.
[15] The substantial risk principle requires a finding, among others, that the lawyer’s judgment will be impaired in his representation of the one client by the interests of the other client. In the situation where the other client will be a witness, there are concerns about the possible misuse of confidential information and whether the lawyer might “soft peddle” his cross-examination of the witness. The latter concern only arises, though, where there is concurrent representation and, as I have said, that will not be situation here by the time of the murder trial.
[16] The former is a legitimate concern even if the witness is a former client. However, here we have an express waiver of the confidentiality concerns by Mr. Beals obtained after he was fully apprised of his legal position by independent counsel. We also have a sworn affidavit from Mr. MacDonald that he did not receive any confidential information from Mr. Beals relevant to the charge facing the respondent. Further, there is no evidence before me of any connection between the murder charge and the charges that Mr. Beals faced. Finally, if any such residual concerns remain, Ms. Craig can conduct any cross-examination of Mr. Beals – a step that might be prudent in the circumstances in any event.
[17] The Crown raises a further concern and that is that there is nothing that prevents the respondent, if he is convicted on the murder charge, from launching an appeal alleging that he was inadequately represented because of these issues and, in particular, that he was adversely affected by the failure to pursue a different alternate suspect, namely, Mr. Beals.
[18] Such a turn of events could undoubtedly occur. As I earlier said, not every contingency can be protected against. In light of the waiver that the respondent has executed, however, any such attempt by the respondent would appear to have some significant hurdles to overcome. In any event, that mere possibility is insufficient to ground an order disqualifying counsel.
[19] In the end result, the application by the Crown, to disqualify Sean MacDonald and Allison Craig from acting for the respondent, is dismissed.
NORDHEIMER J.
Released: March 18, 2015
CITATION: R. v. St. Clair Wright, 2015 ONSC 1764
Court File No.: M145/14
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
DARNELL ST. CLAIR WRIGHT
Respondent
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: March 18, 2015