SUPERIOR COURT OF JUSTICE

CITATION: R. v. I.A., 2015 ONSC 1765

COURT FILE NO.: CRIMJ(P) 197/13

DATE: 20150318

ONTARIO

B E T W E E N:

HER MAJESTY THE QUEEN

Keeley Holmes, for the Respondent

Respondent

• and -

I.A.

Heather Pringle, for John Erickson, counsel for the Applicant

Applicant

HEARD: February 13, 2015

RULING – APPLICATION TO REMOVE COUNSEL

F. Dawson J.

1The accused, I.A., is charged with sexual interference and assault with a weapon in relation to his daughter. The Crown applies to have John Erickson removed as counsel for Mr. I.A. on the grounds of conflict of interest. The alleged conflict of interest arises from the fact that Mr. Erickson previously represented a Crown witness, D.M., on a number of criminal charges several years ago.

The Facts

2D.M. is the complainant’s mother and the accused’s former common law spouse. She contacted the police on May 29, 2011 to advise them that her daughter had made allegations of sexual interference and assault against the accused. I am advised that in addition to receiving the complainant’s initial disclosure Ms. D.M. has other factual evidence to give concerning things she claims to have seen and heard in the aftermath of an incident of physical abuse. She gave a video recorded statement to the police.

3Mr. Erickson represented Ms. D.M. for a period of approximately six months in 1997 and 1998 on charges of theft, fraud, fail to comply with the terms of a probation order, and failing to appear in court. The case was disposed of on March 12, 1998 by way of a guilty plea to one of the charges and the withdrawal of the others. Ms. D.M. received a conditional discharge.

4Mr. Erickson has sworn in his affidavit that he has very little present memory of his representation of Ms. D.M.. He also swears that he received no confidential information from Ms. D.M. which, in his opinion, would be relevant to the current case.

5On June 5, 2011 Ms. D.M. accompanied the accused to Mr. Erickson’s office. Mr. Erickson recognized Ms. D.M. as a former client and immediately identified a potential conflict of interest.

6In his affidavit Mr. Erickson states that he met with Ms. D.M. separately to advise her of his duties regarding their prior solicitor-client relationship. Upon being satisfied that she wanted him to represent the accused, that she was supportive of the accused, and that there was no conflict of interest between the two, he then proceeded to represent the respondent.

7According to Mr. Erickson’s affidavit, he received disclosure of the videotaped police statements of the complainant and Ms. D.M. on October 22, 2012. He attended a pre-trial meeting with an Assistant Crown Attorney on November 13, 2012, not yet having viewed those video statements. Although he thought that Ms. D.M. was supportive of the accused he nonetheless advised Crown counsel of his prior representation of Ms. D.M..

8A judicial pre-trial was scheduled for December 13, 2012. It was not until December 12, 2012 that Mr. Erickson viewed the videotaped statement of Ms. D.M.. At that point Mr. Erickson realized Ms. D.M. was a potentially important Crown witness. He arranged to meet with Ms. D.M. and the accused on December 13, 2012 after the pre-trial.

9At the judicial pre-trial Mr. Erickson again disclosed his prior representation of Ms. D.M. to the Crown counsel in attendance. Mr. Erickson was told there would be “no issue” as the Crown would only call the complainant as a witness. The affidavit is silent as to whether the Crown’s statement related solely to the preliminary inquiry or to the trial as well.

10Following the judicial pre-trial Mr. Erickson advised Ms. D.M. and the accused that, because Ms. D.M.’s statement was not supportive of the accused, they both needed independent legal advice and both would have to sign waivers before Mr. Erickson could continue as counsel. This was discussed during a meeting at Mr. Erickson’s office on December 17, 2012.

11Ms. D.M. immediately obtained independent legal advice and signed a waiver on December 17, 2012. The accused initially said he was going to retain another lawyer to represent him. However, the accused changed his mind and returned to Mr. Erickson’s office a few days later wanting Mr. Erickson to continue to act. Independent legal advice was arranged and the accused also signed a waiver.

12The preliminary inquiry proceeded on February 25, 2013. Crown counsel who appeared took no objection to Mr. Erickson’s representation of the accused. Only the complainant testified at the preliminary inquiry.

13A trial date was scheduled in the Superior Court of Justice for February 9, 2015. Crown counsel assigned to the case contacted Mr. Erickson approximately three weeks prior to the trial and raised the conflict of interest issue. The issue was discussed at a judicial pre-trial and this application was commenced.

14It is unfortunate that the conflict of interest issue arose so late in these proceedings. It is apparent that Mr. Erickson recognized the potential conflict at the outset and that he had recognized it as a more serious issue than he had originally anticipated as far back as the judicial pre-trial in the Ontario Court of Justice when he arranged for waivers and independent legal advice. Three different Crown counsel were aware of the situation prior to the conclusion of the preliminary inquiry and raised no issue.

15There are, however, two very significant factual circumstances that arose after the case was assigned to Ms. Keeley Holmes, Crown counsel who is to conduct the trial. Those factors are the subject of an Agreed Statement of Facts on this application.

16First, at a witness preparation meeting on January 16, 2015 Ms. D.M. advised Ms. Holmes that, although she signed a waiver which was “explained” by a different lawyer, “she only understood about fifty percent of it”.

17Second, and in my view of considerable significance, the Agreed Statement of Facts indicates that the defence theory that “may” be advanced at trial includes an all out attack on Ms. D.M.. The theory is that Ms. D.M., who herself experienced sexual abuse as a child and therefore had knowledge of such things, coached her daughter to make a false complaint against the accused. The theory continues that Ms. D.M. had a new boyfriend and wanted the accused out of her life. She also put her daughter up to making the false allegation in order “to expedite her priority for assisted housing” and to assist her with respect to custody and access issues related to her son and to the complainant. The theory is that the complainant went along with the plan because the accused is a hard disciplinarian and she wanted to remain with her mother.

18The seeds for this defence were at least partially sown during Mr. Erickson’s cross-examination of the complainant at the preliminary inquiry.

The Positions of the Parties

19Crown counsel points out that a serious conflict of interest is recognized in the very waiver Ms. D.M. was asked and agreed to sign. However, she is now questioning the waiver saying that she did not fully understand it. The waiver does not indicate that Ms. D.M. was advised that her previous counsel would be alleging that she committed serious criminal offences, such as obstruction of justice and perjury, in the course of defending his current client. Consequently, the waiver may be ineffective or Ms. D.M. may attempt to withdraw it.

20Even if the waiver stands, Crown counsel submits that is not determinative. Ms. Holmes emphasizes this is not a situation where Mr. Erickson will be cross-examining his former client on a mere factual observation. In her submission, even in the face of a waiver, these circumstances, where an all out attack on a former client is contemplated, bring the proper administration of justice into disrepute to such an extent that the court should remove Mr. Erickson as counsel of record.

21On behalf of Mr. Erickson, Ms. Pringle submits that Mr. Erickson’s prior representation of Ms. D.M. was far removed in time from these events. Approximately 14 years elapsed between Ms. D.M.’s guilty plea and her referral of the accused to Mr. Erickson. Ms. Pringle stressed that the prior retainer was for an unrelated matter, Mr. Erickson has sworn that he obtained no confidential information that is relevant to this matter, and that any counsel will be able to cross-examine Ms. D.M. about her prior criminal history, which is now part of the Crown disclosure.

22Ms. Pringle submits that a right-thinking member of the public, fully informed and aware of the constitutionally protected nature of the accused’s right to counsel of choice, would not see this as a conflict of interest or something which diminishes the repute or integrity of the justice system.

23During oral argument Ms. Pringle agreed that in the absence of a waiver Mr. Erickson would not be permitted to take a position against his former client. Ms. Pringle also agreed that, although she was not aware of any authority directly on point, common sense suggested that a witness could not be prevented from withdrawing their prior consent or waiver. Ms. Pringle submits that if this is a concern for the court the court should order only partial disqualification of Mr. Erickson by requiring that other counsel be brought in to conduct the cross-examination of Ms. D.M.. This would be accompanied by an order that Mr. Erickson is prohibited from sharing any information that he obtained from Ms. D.M. with that counsel.

Analysis

24In this case the accused responds to the Crown’s allegation by asserting his right pursuant to s.10(b) of the Charter to retain counsel of his choice.

25While the accused has a constitutionally protected right to retain counsel of his choice that right is not absolute but is subject to reasonable limitations: R. v. Speid (1983), 1983 CanLII 1704 (ON CA), 43 O.R. (2d) 596, [1983] O.J. No. 3198 (C.A.), at para. 5; R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56, [1999] O.J. No. 202 (C.A.), at para. 40. The court has the jurisdiction to remove counsel from the record and to restrain them from acting. In determining whether to exercise its jurisdiction the court “must balance the individual’s right to select counsel of choice, public policy and the public interest in the administration of justice and basic principles of fundamental fairness” (Speid, para. 6). Such an order should only be made when there are “compelling reasons” (Speid, para. 6). However, “no client has a right to retain a counsel if that counsel, by accepting the brief, puts himself in a position of having a conflict of interest between his new client and a former one” (Speid, para. 7).

26Generally speaking, a criminal defence lawyer will be in a position of conflict of interest if, by their conduct of the defence of their current client, they will be in breach of their duty of confidentiality and/or their duty of loyalty to either their current client or a former client. The duty of loyalty is more often associated with the current client, while the lawyer’s “main duty to a former client is to refrain from misusing confidential information”: Canadian National Railway Company v. McKercher LLP, [2013] 2 S.C.R. 649, 2013 SCC 39, at para. 23. See also R. v. Neil [2002] 3 S.C.R. 631, 2002 SCC 70, Macdonald Estate & Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235.

27I will direct my attention to each of these duties in the context of what has happened in this case in a moment. Before doing so, however, I wish to mention that the court must be concerned not only with what is actually happening in the case but also with the appearance of fairness and justice. These considerations are encompassed within the factors listed in Speid which should guide the court in determining whether to make a disqualifying order. They were also the subject of focused comment in R. v. Robillard (1986), 1986 CanLII 4687 (ON CA), 28 C.C.C. (3d) 22 (Ont. C.A.). That case is particularly germane because it also involved a waiver. Justice Lacourcière held, at p. 28, that the court is required to consider the public interest and the need for public confidence in the administration of justice. At pp. 27-28 he wrote:

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.

28I will deal with the issue of confidentiality first. Mr. Erickson swears in his affidavit that he did not receive any confidential information from Ms. D.M. while representing her that is relevant to this case. I do not doubt the sincerity of this statement. However, it is but a statement of Mr. Erickson’s opinion or belief and relevance is a broad concept. What is relevant at any moment in a trial depends upon what evidence comes out during the course of the trial, and must be determined by the trial judge.

29Here, Ms. D.M.’s credibility will be a central feature of the trial. Common sense and professional experience suggest that any defence counsel representing an accused for criminal charges such as those Ms. D.M. faced in 1997, would have conducted an extensive background interview. Mr. Erickson has not sworn that he did not do so. The type of information elicited in such an interview is very likely to be relevant to Ms. D.M.’s credibility. Ms. D.M.’s credibility is the connecting factor that renders Mr. Erickson’s prior representation of Ms. D.M. a related matter to the current case. Even if Mr. Erickson has little recollection of such information at this time he may recall more later as the case progresses.

30Significantly, this issue must also be considered from Ms. D.M.’s point of view. She took Mr. Erickson into her confidence in the past as her trusted legal adviser. She will know what she told him. The simple fact that she is aware that her previously trusted counsel is attacking her after she confided in him must surely raise a risk of prejudice arising from the potential misuse of confidential information. She may be unsettled or upset by this and it may impact unfairly on her evidence or how she gives it.

31In Michel Proulx and David Layton, Ethics and Canadian Criminal Law, (Toronto: Irwin Law Inc., 2001) the authors discuss the situation where counsel is taking a position that is even somewhat adversarial to a former client. They explain that the misuse of confidential information can occur in many different ways in such circumstances. As the authors explain, at p. 306:

One of the most serious risks that confidential information will be misused arises where the former client is a testifying co-accused or Crown witness who is exposed to cross-examination by counsel. Even if client-lawyer confidences are not in fact misused during cross-examination, the ex-client may be prone to his or her former lawyer’s suggestion on cross-examination because of fear of misuse or because of familiarity and trust arising from the erstwhile relationship.

32I would also point out that there are other ways in which the duty of confidentiality may come into play in the course of the trial if Mr. Erickson continues as counsel, which could reflect adversely on the administration of justice or even negatively impact achieving a just result. This is to be a jury trial. It seems quite likely that, one way or another, it will come out in the course of the trial that Mr. Erickson was previously Ms. D.M.’s lawyer. When jurors see Mr. Erickson attacking his former client on the basis that she is obstructing justice and both counselling and committing perjury, they may well conclude that Mr. Erickson is in a better position than they are to know whether Mr. D.M. would do such a thing because he used to be her lawyer. There are other similar scenarios which are more than plausible on these facts. These considerations, which are related to the nature of the trust and confidentiality associated with the solicitor-client relationship, could realistically interfere with a fair trial. In my view, they will certainly impact negatively on the appearance of a fair trial.

33I turn now to the duty of loyalty. As I have already said, the duty of loyalty is generally considered in relation to the current client. The accused has signed a waiver after receiving independent legal advice. Presumably that will constitute some impediment to his successfully advancing an argument of ineffective assistance of counsel on appeal, should he be convicted. I observe, however, that the fact that the accused has signed a waiver may not prevent others from wondering about whether Mr. Erickson held back in his defence of the accused in some way based on constraints related to his former solicitor-client relationship with Ms. D.M.. That is a serious concern for the administration of justice because it tends to erode public confidence in our adversarial system.

34In R. v. Baltovich, 2003 CanLII 57381 (ON CA), [2003] O.J. No. 2285 (C.A.), Rosenberg J.A. recognized, at para. 12, that the duty of loyalty extends to former as well as current clients. Michel Proulx and David Layton write at p. 306 of their treatise that, quite apart from the duty of confidentiality, a lawyer also owes a broader duty of loyalty to a former client.

As most rules of professional conduct suggest, a former client has a legitimate claim to expect counsel’s loyalty to persist with respect to the subject matter of the retainer, even after the client-lawyer relationship has ended and even if there is little or no possibility that confidential information can be misused (footnote omitted). In such circumstances, courts are quite prepared to find that a reasonable member of the public would hold the integrity of the justice system in considerably less esteem if, despite the protests of the former client, the original lawyer was permitted to launch an all out attack (footnote omitted).

35The theory of the defence as described in the Agreed Statement of Facts in this case certainly constitutes “an all out attack”. In my view it is unseemly to permit a witness’s former counsel to mount such an extensive attack on the character of a person who formerly reposed their complete trust in that lawyer. To permit what is proposed in this case must surely give both the legal profession and the administration of justice a black eye.

36In my view, jurors and reasonably informed members of the community may well put themselves in the shoes of Ms. D.M.. They may think that should they have need for a lawyer and take that lawyer into their confidence that the lawyer will be free to accuse them later of committing heinous crimes should that serve the need of some other client who later retains the same lawyer. See Proulx and Layton at p. 306.

37In the circumstances the concerns described in Robillard come to the fore. I conclude that Mr. Erickson must be removed as counsel in this case in order to ensure a fair trial to both the Crown and the accused and in order to ensure public confidence in the legal profession and the criminal justice system.

38Turning to the waiver, I have grave concerns about its validity in the circumstances. There is no evidence before me that Ms. D.M. was advised about the nature of the all out attack that is described in the Agreed Statement of Facts. Consequently, I am of the view that the waiver is uninformed. It also appears from the Agreed Statement of Facts that Ms. D.M. is now claiming she did not fully understand the waiver. She may be headed towards withdrawing it. These issues are likely to emerge at trial, further disrupting the trial process.

39Even taking the waiver into account, I am of the view that the appearance of unfairness and impropriety is such that Mr. Erickson must be removed as counsel. I make this decision on the basis of the nature of the all out attack that is proposed on a former client. The result might well have been different in other circumstances. A lawyer will not always be in a conflict of interest when called upon to cross-examine a former client. Whether disqualification is required depends upon the facts of the particular case having regard to the factors identified in Speid and Robillard.

40Ms. Pringle has pressed the submission that I should consider allowing Mr. Erickson to remain as counsel while requiring that other counsel be brought in to cross-examine Ms. D.M.. I have carefully considered this option but I have come to the conclusion that it will not solve the problem that arises. Ms. D.M.’s credibility is not something that can be separated from the rest of the trial having regard to the nature of the defence theory. The theory is that she manufactured the complainant’s allegations for her own purposes. This theme will have to permeate almost every aspect of the trial. One would expect it to be a theme from the defence opening, through the cross-examination of both the complainant and Ms. D.M., through the defence case and into closing arguments. It is unrealistic to think that the damage to the administration of justice that I am concerned about will be removed by bringing in another lawyer to cross-examine one witness. Jurors and members of the public will see Mr. Erickson in charge of the defence. Presumably, he will deal with the complainant and make opening and closing submissions.

41This is not a situation such as arose in the appeal in Baltovich where the issue that led to the conflict on the part of counsel James Lockyer was capable of being separated and isolated from the rest of the appeal by having the problematic issue dealt with in its entirety by other counsel. In that case Rosenberg J.A. was able to craft an order that allowed other counsel, Brian Greenspan, to deal with the issue that gave rise to the potential conflict. That is unrealistic in this case.

42Before concluding I wish to go back to the beginning. When this case got started Mr. Erickson recognized the potential for a conflict of interest and he took proper steps which appeared to be adequate to deal with it. It was not until later in the proceedings that the seriousness of the conflict became apparent. It was probably not until the cross-examination at the preliminary inquiry that Crown counsel could divine what the defence was.

43Conflict of interest concerns should be raised as soon as they arise. Delay in the Crown’s application is a factor I take into account. However, defence counsel, as Mr. Erickson recognized at the outset, has the primary responsibility for ensuring that he or she is not in a conflict of interest. Here the problem is very significant due to the all out attack that is likely to be made on Ms. D.M. by her former counsel. For the reasons stated I conclude Mr. Erickson must be removed as counsel for I.A..

F. Dawson J.