COURT FILE NO.: CR-15-0036 DATE: 2017-01-18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen, Respondent J. Dewson, for the Respondent

• and -

Barry Mandamin, Applicant R. Sinding, for the Applicant

HEARD: December 1, 2016, at Kenora, Ontario

Shaw J.

Reasons On Application

1The accused, Barry Mandamin, is charged in a ten count indictment with various assaults, including assaults with a weapon, aggravated assault, sexual assault, uttering a threat and confinement.

2Mr. Mandamin brings an application for an order removing the Kenora Crown Attorney’s Office from the prosecution of these charges due to an alleged conflict of interest. He proposes that Crown counsel from an office other than Kenora Crown Attorney’s Office prosecute the case.

3The application arises from the fact that Mr. Mandamin’s former defence counsel, Pieter Joubert, accepted an offer of employment with the Kenora Crown Attorney’s Office several days before Mr. Mandamin’s trial on the within charges was scheduled to begin.

4The respondent, Her Majesty the Queen, takes the position that the Kenora Crown Attorney’s Office is not in a conflict of interest in this matter and the office in its entirety should not be disqualified from prosecuting Mr. Mandamin.

5The applicant and the respondent have executed the following Agreed Statement of Facts:

1. Pieter Joubert was counsel for Barry Mandamin soon after he was charged, until on or about July 11, 2016.
2. Mr. Joubert conducted the preliminary inquiry and the trial in Superior Court of Justice was scheduled for five consecutive days, Monday to Friday, July 11-15, 2016.
3. Five days before the trial was scheduled to commence, Wednesday July 6, 2016, prior to the Monday July 11, 2016 start date, Mr. Joubert accepted an offer of employment with the Kenora Crown Attorney’s office as a full time assistant Crown in the Kenora Crown Attorney’s office, effective July 11, 2016. It was a six month emergency contract to address under-resourcing. Mr. Joubert was not interviewed for this position. As of October 21, 2016 this position has now been advertised for a temporary position (up to three months backfill secondment/contract with possibility of extension). Pieter Joubert may apply for this contract extension and qualified candidates will be interviewed subsequent to the closing date for applications of November 4, 2016.
4. According to the affidavit Mr. Joubert filed in support of being removed as counsel on R. v. Lonnie Smith, Mr. Joubert consulted with the Law Society of upper Canada’s Practice Management Helpline on July 8, 2016, and was advised that the nature of the conflict of interest in being both counsel on criminal matters prosecuted by the Crown, and being employed by the Crown, is absolute. He was advised that he had to be removed as counsel of record for accused persons as soon as practicable, preferably through the assistance of an agent.
5. At the commencement of trial in the Barry Mandamin matter, on July 11, 2016, the Judge removed him as counsel of record, acknowledging that there was nothing else that could be done in the circumstances.
6. He filed a notice of application in another matter, Lonnie Smith, on or about July 11, 2016, and was removed as counsel of record at the Assignment Court on July 18, 2016, assisted by duty counsel Sharon Scharfe as agent. Mr. Sinding, the current counsel of the accused, was noted as retainer [sic] pending that day with the assistance of Sharon Scharfe.
7. The Kenora District Crown’s office is headed by Crown Attorney Mary Anne Mousseau. There are eight Assistant Crown positions in the Kenora office, and three additional Assistant Crown positions in the Dryden office under the authority of Ms. Mousseau. The eight Kenora Assistant Crowns are all located in the Kenora Crown’s office located mostly within the Kenora Court House, with a few Assistant Crowns located in an office across the street from the Kenora Court House, in the Service Ontario building. This office services the entire Kenora District, which is geographically the largest district in the province including many remote fly-in aboriginal communities.
8. There were no instructions communicated to the other Assistant Crowns in the Kenora Crown Attorney’s Office not to communicate with Mr. Joubert, when he joined the Crown’s Office on July 11, 2016 or at any subsequent time.
9. From time to time the Crown Attorney and Assistant Crowns in the Kenora Crown Office, and Dryden Crown Office, or some of them, socialize outside of work, at various functions including house parties and after-work events. Some or all of them go to lunch from time to time during the work week, and they all communicate regularly and, typically, daily on innumerable files and other matters, at meetings, in each other’s offices, in courtrooms, etc.

6The respondent also relies on an affidavit from Mr. Joubert in which he deposes that since starting his employment with the Kenora Crown Attorney’s Office:

• he has not had any involvement in the prosecution of the applicant;
• he has not discussed the case with the Assistant Crown Attorney with carriage of this matter or with the staff of the Kenora Crown Attorney’s Office;
• he has not revealed or shared any confidential information that he may have received as a result of his representation of the applicant;
• he has not had access to the prosecution file which is in the private office of the Assistant Crown Attorney with carriage of the case;
• he is presently the Assistant Crown Attorney having carriage of prosecutions in the remote fly-in community of Pikangikum, other than for files pertaining to his former clients, and he does not regularly appear in the Kenora courts at this time.

7The decision of the Supreme Court of Canada in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 (also referred to as Martin v. Gray), is the leading case on the issue of whether there is a disqualifying conflict of interest when a lawyer who has received confidential information joins a firm that is acting for those opposing the interests of the former client.

8In MacDonald, Sopinka J., at para. 44, said that “…the test must be such that the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur.” He stated that two questions had to be answered, (1) Did the lawyer receive confidential information attributable to a solicitor client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?

9The Crown acknowledges that Mr. Joubert, as former counsel for Mr. Mandamin on the charges before the court, received confidential information relevant to the prosecution of these charges.

10The issue here is whether there is a risk that the confidential information held by Mr. Joubert, who is now employed by the Crown office prosecuting those charges, will be used to the prejudice of Mr. Mandamin.

11Mr. Joubert, of course, is automatically disqualified from acting against his former client, a proposition which is readily accepted by the Crown.

12MacDonald dealt with a lawyer who moved from one private firm to another. In discussing whether confidential information that this lawyer had would be misused by the new firm, Sopinka J. stated at paras. 48-50:

The answer is less clear with respect to the partners or associates in the firm. Some courts have applied the concept of imputed knowledge. This assumes that the knowledge of one member of the firm is the knowledge of all. If one lawyer cannot act, no member of the firm can act. This is a rule that has been applied by some law firms as their particular brand of ethics. While this is commendable and is to be encouraged, it is, in my opinion, an assumption which is unrealistic in the era of the mega-firm. Furthermore, if the presumption that the knowledge of one is the knowledge of all is to be applied, it must be applied with respect to both the former firm and the firm which the moving lawyer joins. Thus there is a conflict with respect to every matter handled by the old firm that has a substantial relationship with any matter handled by the new firm irrespective of whether the moving lawyer had any involvement with it. This is the “overkill” which has drawn so much criticism in the United States to which I have referred above.

Moreover, I am not convinced that a reasonable member of the public would necessarily conclude that confidences are likely to be disclosed in every case despite institutional efforts to prevent it. There is, however, a strong inference that lawyers who work together share confidences. In answering this question, the court should therefore draw the inference, unless satisfied on the basis of clear and convincing evidence, that all reasonable measures have been taken to ensure that no disclosure will occur by the “tainted” lawyer to the member or members of the firm who are engaged against the former client. Such reasonable measures would include institutional mechanisms such as Chinese Walls and cones of silence. These concepts are not familiar to Canadian courts and indeed do not seem to have been adopted by the governing bodies of the legal profession. It can be expected that the Canadian Bar Association, which took the lead in adopting a Code of Professional Conduct in 1974, will again take the lead to determine whether institutional devices are effective and develop standards for the use of institutional devices which will be uniform throughout Canada. Although I am not prepared to say that a court should never accept these devices as sufficient evidence of effective screening until the governing bodies have approved of them and adopted rules with respect to their operation, I would not foresee a court doing so except in exceptional circumstances. Thus, in the vast majority of cases, the courts are unlikely to accept the effectiveness of these devices until the profession, through its governing body, has studied the matter and determined whether there are institutional guarantees that will satisfy the need to maintain confidence in the integrity of the profession. In this regard, it must be borne in mind that the legal profession is a self-governing profession. The Legislature has entrusted to it and not to the court the responsibility of developing standards. The court’s role is merely supervisory, and its jurisdiction extends to this aspect of ethics only in connection with legal proceedings. The governing bodies, however, are concerned with the application of conflict of interest standards not only in respect of litigation but in other fields which constitute the greater part of the practice of law. It would be wrong, therefore, to shut out the governing body of a self-regulating profession from the whole of the practice by the imposition of an inflexible and immutable standard in the exercise of a supervisory jurisdiction over part of it.

A fortiori undertakings and conclusory statements in affidavits without more are not acceptable. These can be expected in every case of this kind that comes before the court. It is no more than the lawyer saying “trust me”. This puts the court in the invidious position of deciding which lawyers are to be trusted and which are not. Furthermore, even if the courts found this acceptable, the public is not likely to be satisfied without some additional guarantees that confidential information will under no circumstances be used. In this regard I am in agreement with the statement of Posner J. in Analytica, supra, to which I have referred above, that affidavits of lawyers difficult to verify objectively will fail to assure the public.

13Sopinka J. found that the new law firm in that case had not satisfied the second question of whether the confidential information would be misused. Although the former solicitor, together with a senior member of the law firm that he had joined, swore affidavits that no discussions of the case had occurred and indicated that none would occur, Sopinka J. held that this was not sufficient to demonstrate that all reasonable measures had been taken to rebut the strong inference of disclosure. At para. 53, he stated:

Indeed, there is nothing in the affidavits to indicate that any independently verifiable steps were taken by the firm to implement any kind of screening. There is nothing to indicate that when Ms. Dangerfield joined the firm, instructions were issued that there were to be no communications directly or indirectly between Ms. Dangerfield and the four members of the firm working on the case. While these measures would not necessarily have been sufficient, I refer to them in order to illustrate the kinds of independently verifiable steps which, along with other measures, are indispensable if the firm intends to continue to act.

14In my view, the Crown has not demonstrated, either in the Agreed Statement of Facts or in Mr. Joubert’s affidavit, that any “independently verifiable steps” were taken by the Kenora Crown Attorney’s Office that would satisfy the criteria required by MacDonald. To cite the examples of independent verifiable steps suggested by Sopinka J., there is no evidence that the Kenora Crown Attorney’s Office established “Chinese Walls,” or “cones of silence” or issued instructions that there were to be no communications, directly or indirectly, between Mr. Joubert and the lawyers and staff who are working on the prosecution of Mr. Mandamin. Indeed, paragraph 8 of the Agreed Statement of Facts expressly states:

There were no instructions communicated to the other Assistant Crowns in the Kenora Crown Attorney’s Office not to communicate with Mr. Joubert, when he joined the Crown’s Office on July 11, 2016 or at any subsequent time.

15Further, at paragraph 9 of the Agreed Statement of Facts:

From time to time the Crown Attorney and Assistant Crowns in the Kenora Crown Office, and Dryden Crown Office, or some of them, socialize outside of work, at various functions including house parties and after-work events. Some or all of them go to lunch from time to time during the work week, and they all communicate regularly and, typically, daily on innumerable files and other matters, at meetings, in each other’s offices, in courtrooms, etc.

16The Crown submits that different standards should be applied to the office of the Crown Attorney because it is not the same as a private law firm. The Crown does not prosecute cases on behalf of a particular client or party. The Crown does not win or lose.

17In support of its submission, the Crown relies on a decision of the Quebec Provincial Court in R. v. Morales, [1993] R.J.Q. 2940 (C.Q.). In Morales, it was held that because the Crown Attorney’s office did not have a profit motive which is present in private firms, and because its role was not to “win” but to see justice done, there would be no concerns about a conflict of interest where (a) a lawyer, moving from private practice to the Crown’s office undertook not to discuss confidential information about a private client, and (b) senior Crown officers undertook that they would not receive such information.

18Morales was expressly rejected by Rowe J. (as he then was) in R. v. D.P.F., [2000] N.J. No.170 (Nfld. S.C.). Rowe J. held that Morales could not be squared with the majority decision of Sopinka J. and, accordingly, was wrongly decided. In light of the statement of Sopinka J. at paragraph 50 of MacDonald, that undertakings and conclusory statements in affidavits of the lawyers involved, without more, are not acceptable, Rowe J. held that such an affidavit is not enough for Crown Attorneys in a position of conflict of interest.

19Rowe J. cited with approval two Nova Scotia decisions where defence lawyers had joined the Crown’s office: R. v. Stokes, [1999] N.S.J. No.170 (N.S.S.C.), and R. v. Hill (1998), unreported, N.S.P.C. He found, at para. 37, that Stokes and Hill stand for the following, which he said accorded with the majority decision of Sopinka J:

(1) in a conflict of interest situation that arises when a defence lawyer joins a Crown Attorneys’ office, an affidavit by the former defence lawyer and senior Crown prosecution officials that no confidential information has been or will be disclosed is not enough to meet the Martin v. Gray standard;

(2) in absence of adequate “institutional safeguards”, when a defence lawyer joins a Crown Attorney’s office, everyone in that office is conflicted out from appearing against former clients of the “tainted” lawyer (or the “tainted” lawyers firm);

(3) however, a Crown Attorney from another office is not so conflicted;

(4) nor is a lawyer from outside the Crown Attorney’s office, including a Crown agent (per diem counsel); and

(5) as an exception to (1) above, there are circumstances (including where a conflict objection is raised at a late stage in proceedings with limited scope for the misuse of confidential information) where an affidavit by the Crown Attorney will be enough to meet the Martin v. Gray standard.

20Rowe J. held, in concert with Stokes and Hill, that for certain limited purposes Crown Attorneys should be treated differently from private lawyers in dealing with conflicts of interest. He observed that he would not read MacDonald as allowing a lawyer at another office or a multi-office private law firm to be used to resolve a conflict of interest. However, he would consider that a Crown Attorney who worked in a separate Crown Attorney’s office may not be conflicted out, even though in a sense, all Crown Attorneys work for the same “firm.” This, he said, reflects one difference that might exist between dealing with the issue of a conflict at a private firm and one involving Crown Attorneys. If it could be shown that the Crown Attorney prosecuting the accused had always worked in a Crown Attorney’s office separate from the “tainted” lawyer, that would, in his view, “rebut the strong inference of disclosure” referred to by Sopinka J. at para. 49 of MacDonald.

21I accept the reasoning in D.P.F. The principles set out in MacDonald apply to this case. The Kenora Crown Attorney’s Office is a relatively small office. Its lawyers are in regular contact with one another. They socialize on a frequent basis. There is no clear and convincing evidence to rebut the strong inference that these Crown Attorneys share confidences. Because “a fortiori undertakings and conclusory statements in affidavits without more are not acceptable,” and no “independently verifiable steps” have been taken by the Kenora Crown Attorney’s Office, I am of the view that a reasonably informed member of the public would not be satisfied that no use of confidential information would occur.

22The objection by Mr. Mandamin has been raised at the early stage of this proceeding. A new trial has not yet been scheduled. There are strategic and legal tactics to be decided. There are factual and legal issues to be determined. The potential scope for misuse of confidential information is at its highest.

23Sopinka J. stated that in resolving these conflict issues, the court had to balance competing values: the maintenance of the high standards of the legal profession and the integrity of our system of justice; the right of litigants not to be lightly deprived of their choice of counsel; and the desirability of permitting reasonable mobility in the legal profession.

24In the instant case, choice of counsel is not a consideration. The balancing of the integrity of the justice system and the mobility of lawyers is done in a context where the liberty of the accused is at stake. The preservation of the integrity of our system of justice must be the prevailing value. Justice must not only be done, but it must be seen to be done.

25This does not mean that defence counsel who practice in the District of Kenora will be precluded from taking employment with the Kenora Crown Attorney’s Office. What it does mean is that the Crown Attorney’s Office will have to pay heed to these words of Rowe J., at para. 51 of D.P.F.:

In my view, this highlights the need to address the conflict of interest issue with adequate institutional safeguards to be applied each time a defence counsel joins a Crown Attorney’s office to ensure compliance with the standard set out by Sopinka J., for the majority in Martin v. Gray [MacDonald].

Conclusion

26For the reasons given, the application of the accused is granted. The Kenora Crown Attorney’s Office shall not prosecute the within charges. The prosecution of the charges shall be conducted by a Crown Attorney’s Office from outside the District of Kenora.

The Hon. Mr. Justice D. C. Shaw

Released: January 18, 2017 /sab