CITATION: R. v. S.S., 2017 ONSC 6611
COURT FILE NO.: 153/16
DATE: 2017-11-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R. v. S.S.
COUNSEL:
David King, for the Crown
No one appeared, for S.S.
HEARD: November 2, 2017
ENDORSEMENT
gray J.
[1] In order to appreciate what I have done today, it is necessary to set out, briefly, some background.
[2] Mr. S.S. has been charged with sexually assaulting his niece, and sexual interference. He retained as his counsel Mr. Kirkor Apel.
[3] The matter was tried before me without a jury over several days in June, 2017, and the matter was argued on June 27, 2017. At Mr. Apel’s request, I delivered judgment that day convicting Mr. S.S. on both counts, subject to argument, in due course, of whether a stay should be granted on one count pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.
[4] The matter was adjourned to September 20, 2017 for sentencing, and for the delivery of written reasons for judgment. Mr. S.S. remained in custody, as he has been since the charges were laid.
[5] In July, 2017, Mr. Apel was suspended by the Law Society of Upper Canada. By email sent to the trial coordinator shortly before September 20, 2017, he indicated that he was still under suspension and would not be appearing on September 20, 2017.
[6] On September 20, 2017, Mr. S.S. appeared, in custody, without counsel. He advised me that he had had no contact from Mr. Apel, and indeed he did not even know that Mr. Apel had been suspended. I released my written Reasons for Judgment: see R. v. S.S., 2017 ONSC 5459.
[7] Upon being advised by Crown counsel that the Crown would be seeking a declaration that Mr. S.S. is a dangerous offender, I advised Mr. S.S. that I was not willing to deal with his sentencing, in any way, that day. Rather, I would adjourn the matter so that Mr. S.S. could at least have some contact with Mr. Apel and discuss with him what options may be available, and potentially seek other counsel. Accordingly, I adjourned the matter to today, November 2, 2017.
[8] When the matter proceeded today, Mr. S.S. once again appeared without counsel. Counsel for the Crown advised that several attempts had been made to communicate with Mr. Apel, but that emails were not responded to, and his voicemail box was full. Mr. S.S. advised that he had had no contact from Mr. Apel, and knew nothing except that Mr. Apel was still suspended.
[9] In the circumstances, I was not prepared to simply leave the matter in abeyance, with Mr. S.S. in custody and with no end in sight. He was, and is, facing very serious consequences having regard to the Crown’s intention to seek a dangerous offender declaration. Accordingly, I advised that I would appoint amicus for the assistance of the court, and to ensure that Mr. S.S.’s rights are protected. I adjourned the matter to November 17, 2017, to be spoken to.
[10] I have considerable concern about the state of this matter, and the way it has been left by Mr. Apel.
[11] I have reviewed the guidelines for lawyers who are suspended or who have given an undertaking not to practice, as published by the Law Society of Upper Canada. Those guidelines include the following:
- (1) In this Guideline, “suspended lawyer” means a lawyer whose licence to practise law is suspended or who undertakes to the Law Society to not practise law.
(2) A suspended lawyer or a lawyer who has undertaken to the Law Society to restrict his or her practice must cease practise as a result of the suspension or in compliance with the terms of the undertaking. Suspended lawyers are also prohibited from providing legal services as defined by the Law Society Act, as only those persons licensed by the Law Society to provide legal services may do so. By-laws 7.1 (PartII) and 9 (PartII.1) impose on suspended lawyers certain notice requirements, obligations and restrictions on activities, including the handling of money and other property.
(3) in order to comply with these obligations and restrictions, suspended lawyers my comply with these Guidelines.
- (1) During the term of the suspension or undertaking not to practise, the suspended lawyer may only:
(a) See clients only for the limited purpose of assisting them in transferring their past or present legal work to another lawyer;
b) If requested by the client, suggest a referral to a particular lawyer to continue work on the client’s file. The ultimate choice of who is retained rests with the client and not with the suspended lawyer;
[Emphasis added]
[12] Clearly, a suspended lawyer is not entitled to practice law, which would include appearing for a client in court. Obviously, Mr. Apel is not able to appear in court on behalf of Mr. S.S. while he is suspended.
[13] However, it is also clear that during his suspension Mr. Apel is not prohibited from seeing his client for the purpose of assisting him in transferring Mr. S.S.’s case to another lawyer, or suggesting a referral to another lawyer.
[14] In my view, in some circumstances this may be more than something the suspended lawyer is entitled to do; rather, it may be something he or she is required to do. This would particularly be the case, in my view, where the client is in custody and has little, if any, ability to protect his or her own interests.
[15] In this case, Mr. Apel has done nothing to assist Mr. S.S. in protecting his own interests. He has allowed his client to languish in custody without making any effort to ensure that his client’s case is resolved, and his client’s interests protected. Indeed, he has not even contacted him.
[16] As noted, I am very concerned about the lawyer’s conduct. Whether the Law Society chooses to do anything about it is, of course, up the Law Society.
Gray J.
Released: November 2, 2017