Court File and Parties

COURT FILE NO.: CR-16-00000033-00MO DATE: 20160715 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – SAMEER KARA AND JOSHUA CABERO Respondents

Counsel: Phillip Perlmutter and Susan L. Reid, for the Applicant Frank Addario, for the Respondent, Sameer Kara Anita Nathan, for the Respondent, Joshua Cabero

HEARD: April 21 and 22, 2016

REASONS FOR DECISION

J. MACDONALD, J.

Introduction

[1] Two lawyers who are partners in a law firm are representing two persons charged with one count of sexual assault. The Crown has moved for an Order removing both lawyers and their firm from the record because of a conflict of interest.

[2] The two lawyers deny that there is a conflict or a risk of one developing. Their clients have received independent legal advice, want them to continue acting and have formally waived any conflict. They have opposed the Crown’s application. The manner in which they oppose the Crown’s application presents threshold procedural issues for consideration.

Background Facts

[3] Mr. Kara and Mr. Cabero are charged with one count of sexual assault. There is a co-accused who is separately represented and who is not the subject of the Crown’s application. All three accused persons are alleged to have sexually assaulted the same woman on one occasion. The Crown’s primary position is that the accused persons acted in concert. Alternatively, the Crown contends that they committed individual acts of sexual assault.

[4] Mr. Kara retained Mr. Michael Lacy at a time when he was a member of Greenspan Partners LLP. Mr. Cabero retained Mr. Peter Brauti, a partner in Brauti Thorning Zibarras LLP. Subsequently, Mr. Lacy became a partner in and commenced practicing with Brauti Thorning Zibarras LLP.

[5] The Crown quickly raised the question of a conflict of interest. Mr. Kara and Mr. Cabero have each received independent legal advice in respect of the Crown’s conflict concerns and consent to Mr. Lacy and Mr. Brauti continuing to act. Mr. Lacy and Mr. Brauti have taken steps within their firm to segregate the files of their respective clients and to screen them from each other, and those people who work with each of them. They deny there is a conflict or a risk of one developing.

[6] The Crown has therefore moved for an Order removing the lawyers and their firm from the record. There is no issue that this application has been brought early in the proceeding. Initially, the preliminary inquiry was scheduled to take place later in July 2016. However, on June 30, 2016 the Attorney General consented to a direct indictment being preferred pursuant to s.577 (a) of the Criminal Code R.S.C. 1985, c. C-46, as amended.

The Crown’s Position

[7] The Crown’s primary position is anticipatory: there is a risk of the evidence at trial causing a divergence between the interests of Mr. Kara and Mr. Cabero, resulting in Mr. Lacy and Mr. Brauti having conflicting duties of loyalty to their clients which would be at odds with their unity of interest as law partners. The Crown’s secondary position rests on the existing and ongoing risk of a loss of confidentiality of solicitor-client information because Mr. Lacy and Mr. Brauti are partners and share law office premises.

The Respondents’ Position

[8] The respondents submit that the Crown’s anticipated conflicts are speculative, unrealistic and unlikely to occur. Recognizing that their arguments are conjectural like the Crown’s arguments, the respondents wish to rely upon evidence of their defence position in order to negate what the Crown supposes might occur. However, the respondents assert that the defence position is confidential, shielded by solicitor-client privilege. The respondents wish to maintain that privilege and to preserve that confidentiality even though they want the court to review evidence of the defence position.

Threshold Procedural Issues

[9] Through the cooperation of counsel, the following was agreed:

1. The respondents may seek leave to file sealed affidavit evidence setting out the defence position, for the court’s review.

2. The judge hearing the application will determine whether to permit the filing of the sealed affidavit evidence, and whether to review it.

3. If the judge should decide to receive and review the sealed affidavit evidence, the judge will then determine whether it contains privileged information and if so, the nature of the privilege in issue.

4. If the judge should receive and review the sealed affidavit evidence and rule that is subject to solicitor-client privilege, the Crown will argue that the court’s review of it destroys its confidentiality and thus ends solicitor-client privilege in it. This is described by the Crown as a “waiver” of solicitor-client privilege.

5. If the judge should hold that solicitor-client privilege is waived as aforesaid, the respondents will be entitled to withdraw the sealed affidavit evidence and not disclose it to the Crown. If the sealed affidavit evidence is withdrawn, it will play no part in deciding the Crown’s conflict application.

6. If the judge should hold that solicitor-client privilege is not waived, the judge may rely on the sealed affidavit evidence in deciding the Crown’s conflict application.

7. If the sealed affidavit evidence is privileged and if privilege is not waived, the judge may seal written reasons for decision to the extent necessary to preserve the confidentiality of the sealed affidavit evidence, subject to further order of the court.

[10] I held that it was in the interests of justice to receive and review the sealed affidavit evidence. With that first step resolved, the parties agreed to a hearing process analogous to that adopted by Mr. Justice K. Campbell in R. v. MacKenzie [2015] O.J. 7036, for determining the existence and nature of any privilege in the sealed affidavit evidence. In MacKenzie (supra), the procedure was based on that set out in R. v. Garofoli [1999] 2 S.C.R. 1421.

[11] I therefore reviewed the sealed affidavit evidence, posed written questions to respondents’ counsel and received written answers. A redacted copy of the sealed affidavit evidence was provided to Crown counsel. After hearing submissions, I ruled that the defence position set out in the sealed affidavit evidence is subject to solicitor-client privilege and is confidential.

[12] For the reasons expressed at a later point herein, I have determined that my review of the documentation and information herein which is subject to solicitor-client privilege does not end either that privilege or the confidentiality surrounding it. I will therefore release these public reasons which will not address the nature of the privileged information. I will also deliver sealed reasons which address that privileged information.

Solicitor-Client Privilege

[13] The purpose of solicitor-client privilege is to enable legal advice to be sought and given in confidence. The privilege is fundamental to the effective functioning of a solicitor-client relationship and is essential to the administration of justice.

[14] In Canada (National Revenue) v. Thompson, 2016 SCC 21, Wagner and Gascon JJ. for the Court provided a detailed overview of the law of solicitor-client privilege, as follows, commencing at paragraph [17]:

[17] Solicitor-client privilege has evolved from being treated as a mere evidentiary rule to being considered a rule of substance and, now, a principle of fundamental justice (Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18, [2004] 1 S.C.R. 456, at para. 34; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 49; Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193, at para. 11; Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 839; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at p. 875; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401, at paras. 8 and 84). The obligation of confidentiality that springs from the right to solicitor-client privilege is necessary for the preservation of a lawyer-client relationship that is based on trust, which in turn is indispensable to the continued existence and effective operation of Canada’s legal system. It ensures that clients are represented effectively and that the legal information required for that purpose can be communicated in a full and frank manner (R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 289 . . .).

(Foster Wheeler, at para. 34)

[18] In Descôteaux, one of the earliest cases in which this Court acknowledged that solicitor-client privilege involves a substantive right, Lamer J., as he then was, elaborated on the various aspects of the privilege as follows:

1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent.
2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.
3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation.
4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively. [p. 875]

The third and fourth elements of this substantive rule have together been interpreted to support the proposition that an intrusion on solicitor-client privilege must be permitted only if doing so is absolutely necessary to achieve the ends of the enabling legislation (Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, [2006] 2 S.C.R. 32, at para. 24).

[19] Although Descôteaux appears to limit the protection of the privilege to communications between lawyers and their clients, this Court has since rejected a category-based approach to solicitor-client privilege that distinguishes between a fact and a communication for the purpose of establishing what is covered by the privilege (Maranda, at para. 30). While it is true that not everything that happens in a solicitor-client relationship will be a privileged communication, facts connected with that relationship (such as the bills of account at issue in Maranda) must be presumed to be privileged absent evidence to the contrary (Maranda, at paras. 33-34; see also Foster Wheeler, at para. 42). This rule applies regardless of the context in which it is invoked (Foster Wheeler, at para. 34; R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 289).

[15] In Descôteaux (supra) Lamer J. stated for the court at pages 892-893:

In summary, a lawyer’s client is entitled to have all communications made with a view to obtaining legal advice kept confidential. Whether communications are made to the lawyer himself or to the employees, and whether they deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem all information for which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality. This confidentiality attaches to all communications made within the framework of the solicitor-client relationship…”

[16] In Canada (Attorney General) v. Chambere des notaires du Québec, 2016 SCC 20, Wagner and Gascon JJ. for the Court stated at paragraph 73:

Whether a document or the information it contains is privileged depends not on the type of document it is but, rather, on its content and on what it might reveal about the relationship and communications between a client and his or her notary or lawyer.

[17] As stated by the Supreme Court in Canada (National Revenue) v. Thompson (supra) at paragraph [19], facts connected with a solicitor-client relationship must be presumed to be privileged absent evidence to the contrary, and no distinction should be drawn between a fact and a communication for the purpose of establishing what is covered by the privilege.

[18] Whether the defence position as disclosed in the sealed affidavit evidence is regarded as a fact, a communication or both, it is intimately connected to the solicitor-client relationship. There is no evidence to the contrary. It is, therefore, subject to solicitor-client privilege and is confidential.

Does A Judge’s Review of Solicitor-Client Information End That Privilege?

a) The Court’s Status and Role in Relation to Confidentiality

[19] The Crown’s argument is that a judge’s review of documentation or information which is subject to solicitor-client privilege ends that privilege because confidentiality is lost. That posits that the court’s status is the same as that of any other individual who, or entity which gains knowledge of confidential information. In my opinion, that position is not supported by the authorities.

[20] In Solosky v. The Queen, [1980] 1 SCR 821, the issue was the right of a prison to review an inmate’s mail, in particular letters between an inmate and his solicitor, in order to address prison security issues. One issue was determining which mail contained communications which were subject to solicitor-client privilege and which did not. Dickson J. (as he then was) for the Court stated at page 837:

To make a decision as to whether privilege attaches, the letters must be read by a judge…

[21] If the Crown were correct that a judge’s review of documentation or information which is subject to solicitor-client privilege destroys that privilege, there would be no decision to be made as to whether privilege attaches to it. It is, therefore, implicit in the Court’s decision that a judge’s review of documentation or information which is, in fact, subject to solicitor-client privilege, in order to decide whether it is subject to that privilege, does not destroy that privilege, whether by ending the confidentiality of the information or otherwise.

[22] The reasons for this may be found in Beauregard v. Canada, [1986] 2 SCR 56 and in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 SCR 574. In Beauregard, the Court considered the concept of judicial independence. Dickson, CJC stated at page 73 on behalf of the Court:

The role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate in authority and function from all other participants in the justice system”. (Underlining in original).

Dickson, CJC stated that he emphasized the word “all” to make the point that courts are separate in authority and function from both the executive branch and the legislative branch of government. In my opinion, the word “all” extends farther than just that: because of its function, a courts’ role is separate from, and thus different from the role of any other individual or entity.

[23] In the Blood Tribe case, the Privacy Commissioner ordered the Blood Tribe Department of Health to produce documents which it claimed were subject to solicitor-client privilege. The Federal Court of Canada dismissed a judicial review of this decision. The Federal Court of Appeal reversed, quashing the production order. On appeal to the Supreme Court of Canada, the Privacy Commissioner claimed the same powers as a superior court of record in respect of production of documents. Binnie J. rejected that submission and stated at paragraph [22] that the court’s power to review a document in these circumstances “derives from its power to adjudicate disputed claims over legal rights”.

[24] If it were correct that a court’s review of a document containing information which is subject to solicitor-client privilege destroys that privilege, the review would mean that there would be no disputed claim of solicitor-client privilege to adjudicate. Again, therefore, it is implicit in the Supreme Court’s decision that such a review does not destroy solicitor-client privilege, whether by ending the confidentiality or otherwise. That is necessary for the court to perform its constitutionally mandated role of adjudicating disputes about the existence, scope and application of solicitor-client privilege and its attendant confidentiality.

[25] R. v. Basi, 2009 SCC 52, [2009] 3 SCR 389 dealt with confidential informant privilege. Fish J. for the Court stated at paragraph [44] that “no one outside the circle of privilege may access information over which privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies”. There are significant differences between confidential informant privilege and solicitor-client privilege. Nonetheless, confidentiality is an important aspect of each. The concept of a “circle of privilege” or a “circle of confidentiality” which asserts confidentiality in relation to those beyond the circle is common to both privileges.

[26] A judge is not within any circle of solicitor-client privilege or confidentiality because a judge is not privy to any solicitor-client relationship. Nor is a judge, reviewing privileged information to adjudicate a solicitor-client privilege issue, outside that circle such that the review itself terminates confidentiality, based on the Supreme Court’s reasoning in the aforesaid cases.

[27] A judge’s review of documentation or information for the purposes of adjudication is an intrusion upon existing solicitor-client privilege and upon confidentiality. However, that intrusion is necessary for adjudication to occur and as a result, the intrusion is neutral in its effect upon the existence and the continuation of both the privilege and the confidentiality which surrounds it. A judge’s review of documentation or information which is subject to solicitor-client privilege in these circumstances does not diminish or end either the privilege or the confidentiality.

b) Waiver

[28] The Crown takes the position that the respondents have chosen to tender solicitor-client information for use in this litigation and as a result, the respondents have voluntarily waived solicitor-client privilege in that information.

[29] I do not accept this position as accurate. In the conflict application, the Crown is attempting to disqualify and remove from the record the lawyers whom the respondents have chosen to defend them. The Crown’s application seeks to intrude upon these solicitor-client relationships by challenging their propriety and forcing their termination. The respondents, as is their right, seek to preserve their solicitor-client relationships. In my view, the Crown created the need for the respondents to protect their position. That is the only reason why the sealed affidavit evidence is before the Court. The respondents continue to assert that the defence position is subject to solicitor-client privilege and is confidential while requesting the court to review the documentation and information in issue.

[30] The procedure followed herein is relevant. The parties agreed that the respondents could seek leave to file the sealed affidavit evidence and that the presiding judge would determine whether to grant leave and whether to review that evidence. The defence position thus comes to my attention pursuant to my leave, which is an order of the court made in the court’s discretion, in the exercise of the aforesaid adjudicative responsibilities.

[31] It is true that the respondents want to rely on the sealed affidavit evidence, but only to defend against the Crown’s attack on their solicitor-client relationships by engaging in the aforesaid adjudicative process. The respondents’ purpose clearly is to protect their solicitor-client relationships and the confidentiality which surrounds them through this adjudicative process.

[32] For the reasons given earlier, the court’s review of the defence position does not diminish or end either the privilege or the confidentiality. Responding to the Crown’s attack on these solicitor-client relationships in the manner in issue while asserting the privilege and its confidentiality is not a voluntary waiver of the privilege or of its confidentiality, in my opinion. This is consistent with the principles that solicitor-client privilege shall be as absolute as it can be and shall be set aside only to the extent that is absolutely necessary.

[33] If what the respondents have done were properly regarded as a waiver, it would be a selective waiver. That is because the documentation and information in issue are submitted only to the court, for adjudicative purposes, while the privilege and its confidentiality are asserted against everyone else.

[34] Hodge M. Malek Q.C., ed., in Phipson on Evidence, 18th ed. (London: Sweet & Maxwell, 2013) at Chapter 26, section 4, paragraph 26-34 draws helpful distinctions between selective waivers and limited waivers, stating:

“If selective waiver involves a waiver in relation to certain persons only, limited waiver involves a waiver for limited purposes only leaving the right to claim privilege for other purposes unaffected. The principles are different, albeit related, as between selective waiver and limited waiver. Selective waivers are analytically simple, because privilege is maintained against everyone except the recipient. Limited waivers reserve the right to claim privilege against the same person (and everyone else, too) for other purposes and thus are analytically much more complex. The two principles are often run together in the decisions and cases which are properly cases of selective waiver are not uncommonly treated as limited waiver.

[35] In B. v. Auckland District Law Society (2003) 2 A.C. 736, the Privy Council’s opinion was delivered by Lord Millett who stated at paragraph [68] that:

“It does not follow that privilege is waived generally because a privileged document has been disclosed for a limited purpose only,” and,

“It must often be in the interest of the administration of justice that a partial or limited waiver of privilege should be made by a party who would not contemplate anything which might cause privilege to be lost, and it would be most undesirable if the law could not accommodate it.”

[36] In Mann v. Carnell 201 C.L.R. 1 (1999), the High Court of Australia came to a similar conclusion. The majority held at paragraph 34:

“Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client’s actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect. Depending upon the circumstances of the case, considerations of fairness may be relevant to a determination of whether there is such inconsistency.”

[37] In my opinion, these cases support the proposition that, if what the respondents have done is a waiver, it is a selective waiver which does not impair or destroy either solicitor-client privilege in the documents and information in issue or the confidentiality thereof.

[38] The respondents have opened up solicitor-client confidentiality only to the extent necessary to protect, through the court, their solicitor-client relationships from an attempt to deprive them thereof. Their conduct is entirely consistent with maintaining those relationships, the solicitor-client privilege therein and the confidentiality which attends them. Clearly, these solicitor-client relationships are of fundamental importance to the respondents as they are prosecuted. It is, therefore, consistent with fairness that they have an effective means of protecting their confidential interests. If the price of protecting their solicitor-client interests is the loss of the very confidentiality which they seek to protect, that would be unfair to persons in the respondents’ position, facing both criminal prosecution and the potential loss of the counsel defending them therein.

c) Conclusion

[39] The defence position contained in the sealed affidavit evidence is subject to solicitor-client privilege and is confidential. The court is entitled to review that documentation and information in order to confirm the existence of the privilege, and also to take it into account in determining the Crown’s conflict application. Neither solicitor-client privilege nor the confidentiality surrounding it is diminished or destroyed thereby. The Crown’s request for disclosure of the sealed affidavit evidence is dismissed.

[40] Given the significance and breadth of the solicitor-client privilege in the sealed affidavit evidence, it is not necessary to consider whether it is also subject to litigation privilege.

Conflict of Interest

[41] My sealed Reasons address the defence position as set out in the sealed affidavit evidence. For the reasons expressed therein, I conclude that:

a) As of the date this Application was argued, the defence positions of the two respondents were not in conflict. However, that affords no reliable assurance that that will continue. b) As between the respondents at any time after argument of the Application, the sealed affidavit evidence does not establish that either conflict or adverse defence interests or positions cannot or will not arise. The defence positions may change and in my opinion, one respondent’s probably will. c) The sealed affidavit evidence does establish that, unless a conflict between the respondents arises, the confidentiality of solicitor-client communications and information has been adequately addressed, with the respondents’ concurrence, and is not jeopardized by their lawyers being partners in the practice of law who carry on their respective practices in the same location.

[42] The Crown’s case rests on the complainant’s testimony that all three accused persons had sexual relations with her. The Crown’s case also includes extensive DNA evidence. Samples were taken from the complainant and from her clothing and jewellery. They disclosed two DNA profiles. The DNA of all three accused persons was obtained pursuant to a warrant. The respondent Kara could not be excluded as the source of DNA profile 1, with a random match probability of 1 in 68 trillion. The co-accused Nyznik could not be excluded as the source of DNA profile 2, with a random match probability of 1 in 490 quadrillion. The respondent Cabero was excluded as the source of the two DNA profiles.

[43] The respondent Cabero is thus in a very different position than the respondent Kara. The DNA evidence does not support the complainant’s evidence that Cabero had sexual relations with her. It does support the complainant’s evidence that Kara had sexual relations with her. Cabero thus has an avenue of defence which Kara does not have.

[44] It may be that the respondents will testify at trial to the same versions of events. It may also be that their testimony will be different. For example, Cabero may testify that he didn’t have sexual contact with the complainant, others did, and that is the reason why his DNA was not on her or her clothing or jewellery. Kara may testify that Cabero did have sexual contact with the complainant. In such a circumstance, there would be a clear conflict between them and their respective defence positions.

[45] Possibilities abound. The question, however, is whether there is a substantial risk (Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 SCR 649) or a realistic risk (R. v. W(W) et al (1995), 100 CCC (3d) 225 (OCA)) of a conflict of interest between the respondents arising in the defence of this charge. Absent that, there will be insufficient cause to deprive the respondents of their counsel of choice even if that choice involves joint representation of co-accused, as it does here because the two respondents are represented by two lawyers who are law partners (MacDonald Estate v. Martin [1999] 3 SCR 1235). If that degree of risk exists, an order removing one or both counsel from the record is appropriate, in the interests of justice. That is so even though both respondents have received independent legal advice and have waived any conflict. While their interests and their position are important, the interests of justice, including in preserving the integrity of the trial process herein and in avoiding the risk of diminishing public confidence in the justice system, predominate.

[46] In considering whether there is a substantial or a realistic risk of conflict, I am mindful of the caution voiced by Chief Justice Rehnquist in Wheat v. United States, 486 US 153 (1988) at page 162:

“The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials. It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the government’s witnesses will say on the stand. A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants.”

[47] In my opinion, the risks in this case are similar to those in R. v. Cocks, 2012 BCSC 1336. Two lawyers from the same firm represented two of seven accused persons. The two accused persons wanted joint representation, signed irrevocable waivers and had explicitly consented to the sharing of confidential information between their counsel. Silverman J. observed at paragraph 35 that:

“It takes little imagination to realize that one of the strategies that may be available to one or both of these accused will be to minimize his own involvement. Often that strategy requires an attempt or results in an attempt to shift some or all blame to other accused persons.”

Referring to the risk that the two accused persons might change their positions in the future, Silverman J. stated at paragraph 32:

“… I am satisfied that that is where the substantial risk is and where the possibility of real mischief might occur.”

[48] I am of the opinion that, as the trial and the day of reckoning draw closer, the odds will increase that the respondent Cabero will protect his personal interests by the means available to him. As a result, I am satisfied that there is a substantial and realistic risk that the respondent Cabero will take a position premised on his DNA not having been found on the complainant, her clothing or jewellery which is inconsistent with the interests of the respondent Kara whose DNA, in all probability, was found on the complainant and who therefore, in all probability, had sexual relations with the complainant. My sealed Reasons expand on my reasons for this conclusion.

[49] It is correct, as Mr. Addario submits, that if Cabero were to testify at trial that he did not engage in sexual activity with the complainant, that, in itself, would not adversely impact the other accused persons. However, as noted, the strategy of minimizing one’s own involvement often includes an attempt to shift some or all blame to other accused persons. My sealed Reasons address this.

[50] In this regard, I rely also on what Chief Justice Burger stated in Holloway v. Arkansas, 98 S. Ct. 1173 (1978), at page 1181:

“Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing. For example, in this case it may well have precluded defence counsel for Campbell from exploring possible plea negotiations and the possibility of an agreement to testify for the prosecution, provided a lesser charge or a favourable sentencing recommendation would be acceptable. Generally speaking, a conflict may also prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favourable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another.”

This passage was cited in R. v. Silvini (1991), 68 CCC (3d) 251 (OCA) by Lacourcière J.A. for the court at paragraph 12, following which Lacourcière J.A. stated:

“In a case of joint representation of conflicting interests, defence counsel’s basic duty of undivided loyalty and effective assistance is jeopardized and his performance may be adversely affected.”

While these concerns were expressed about one counsel representing two accused persons, they also apply when two counsel from one firm represent two accused persons.

[51] In R. v. Speid (1983), 8 CCC (3d) 18 (OCA) Dubin J.A. (as he then was) stated at pages 20-21:

“In assessing the merits of 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.”

[52] Having considered these issues, I conclude that there is a substantial and realistic risk that adversity will develop between the defence positions of the respondents Cabero and Kara such that their lawyers will have conflicting duties of loyalty in representing them. As a result, they will not be able to provide effective representation to either of them in the circumstances which I find are likely to arise.

[53] Mr. Lacy and Mr. Brauti are disqualified from acting herein. They and their law firm are removed from the record on behalf of the respondents.

[54] An order was made on April 21, 2016 prohibiting publication of the name of the complainant and any information which is capable of identifying her.

Dated at Toronto this ______ day of July, 2016.

Mr. Justice John Macdonald

Released: July , 2016

COURT FILE NO.: CR-16-00000033-00MO DATE: 20160715 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Applicant – and – SAMEER KARA AND JOSHUA CABERO Respondents REASONS FOR DECISION J. Macdonald, J. Released: July , 2016