Her Majesty The Queen v. Ada Maria Willett, 2018 ONSC 5031

Court File No.: CR-16-50000398-0000 Date: 2018-08-30 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Applicant And: Ada Maria Willett, Respondent

Counsel: Jennifer Strasberg & Alana Pasut, for the Applicant Anthony Moustacalis, for the Respondent

Heard: August 9, 2018

Reasons for Judgment

Faieta J.

[1] The issue on this application is whether a lawyer should be disqualified from assisting in the defence of the wife of his former client whose trial was severed from her trial.

Background

[2] The Respondent, Ada Maria Willett and her spouse, Gary Willett, were jointly charged on a 22 count indictment that alleged, amongst other things, that over many years they had assaulted various young family members and a couple, Timothy Goldrick and Barbara Bennett, that lived with them.

[3] A preliminary inquiry was held in 2016. At that time, each of the accused had independent counsel: Sam Goldstein represented Mr. Willett, and Daniel Kayfetz represented Ms. Willett.

[4] In 2017, on the eve of trial, Ms. Willett suffered a stroke. There was a concern that she was unfit to stand trial. The Crown elected to sever the indictment and proceeded to trial against Mr. Willett based on a six count indictment. At trial, Mr. Goldstein represented Mr. Willett. Mr. Willett was convicted of assaulting Mr. Goldrick, unlawfully taking Mr. Goldrick’s child, and theft over $5,000. He was acquitted of unlawful confining Mr. Goldrick and Ms. Bennett as well as failing to provide the necessaries of life to Mr. Goldrick.

[5] Mr. Willett’s appeal of the three convictions is pending.

[6] Mr. Goldstein no longer represents Mr. Willett. By email dated April 20, 2018, Mr. Goldstein advised the court and the Crown that he is co-counsel to Mr. Kayfetz in representing Ms. Willett. Her trial is scheduled to commence on September 24, 2018 and is expected to take eight weeks. The Crown has delivered a draft indictment, dated June 5, 2018, that contains 14 counts against Ms. Willett that, in addition to repeating and adopting the same charges for which Mr. Willett was tried, also charges Ms. Willett with assault against Ms. Bennett and her two grandchildren, Tony Romans Junior and Frank Romans.

[7] The Crown brings an Application for an Order removing Mr. Goldstein as counsel of record for the Respondent on the grounds that there is a realistic risk that Mr. Goldstein’s loyalties to his former client, Mr. Willett and to his current client, Ms. Willett, will come into conflict.

The Crown’s Position

[8] Where an application for removal of a solicitor of record is made by the prosecutor, r. 25.04 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, requires that an affidavit be filed with the notice of application and that the affidavit contain, amongst other things, a full statement of all facts material to a determination of the application, including a statement of the reasons why the order sought should be given. No such affidavit was delivered by the Crown.

[9] Rather than providing a concise statement of the grounds for this application as contemplated by Form 1 of the Rules, the Notice of Application provides 13 pages of submissions. The Crown’s reasons for requesting an order that Mr. Goldstein be disqualified as Ms. Willett’s counsel can be summarized as follows:

• Any advice provided by Mr. Goldstein as to whether Ms. Willett should testify regarding Mr. Willett’s involvement may build the Crown’s case against Mr. Willett, whose conviction is under appeal. The Crown provides two examples:
  • In Justice McMahon’s oral reasons for judgment delivered January 12, 2018, Mr. Willett was found guilty of stealing Mr. Goldrick’s ODSP cheques over the period from January 1991 to October 2012. Justice McMahon found that Mr. Goldrick lived in a residence that was rented by Mr. Willett and Ms. Willett. Mr. Goldrick paid about $700 per month for rent and food. Mr. Willett testified that Mr. Goldrick would cash his cheque at the Money Mart on a monthly basis, then pay his portion of the rent and food, and then whatever was left would be used by Mr. Goldrick to buy drugs, alcohol and cigarettes. Mr. Goldrick’s evidence was that he was required each month to cash his cheque and turn over the entire proceeds to Mr. Willett and Ms. Willett. Justice McMahon found that Mr. Willett and Ms. Willett exploited Mr. Goldrick and that they jointly converted about $200 to $300 per month, being the remainder of Mr. Goldrick’s ODSP cheque, over that lengthy period, totaling about $48,000. The Crown submits that a conflict could arise as Ms. Willett may testify that she never dealt with the proceeds of Mr. Goldrick’s ODSP cheques or that she never took Mr. Goldrick to Money Mart to cash his ODSP cheques.
  • Mr. Willett was found guilty of unlawfully taking Mr. Goldrick’s baby son. Ms. Willett faces the same charge. At his trial, Mr. Willett testified that he and his wife Maria had discussions with both Mr. Goldrick and Ms. Bennett who agreed to give them custody of the child. Justice McMahon rejected his evidence. He was satisfied “well beyond a reasonable doubt” that Mr Willett and his wife took the child from Mr. Goldrick, taking advantage of his limited intelligence and life skills knowing he did not consent to give up his child. He found that Mr. Willett and his wife deprived Mr. Goldrick of his child for the entire period of the child’s life as covered by the indictment. The Crown submits that a further conflict may arise as Ms. Willett may contradict Mr. Willett’s evidence by testifying at her own trial that Mr. Willett told her that Mr. Goldrick and Ms. Bennett had provided their consent for them to take their baby.
• Mr. Willett is a compellable witness for Ms. Willett as an exculpatory witness. Mr. Goldstein’s duty of loyalty to Ms. Willett would compel him to tell her Mr. Willett’s anticipated evidence while his duty of confidentiality to Mr. Willett would compel him not to do so;
• Mr. Willett gave a statement to the police and testified at his trial on many issues concerning Ms. Willett’s actions in relation to these charges. He is a compellable witness for the Crown. If Mr. Willett’s evidence implicates Ms. Willett, then his duty of loyalty to Ms. Willett would compel Mr. Goldstein to impeach Mr. Willett’s credibility while his duty of loyalty to Mr. Willett would compel him not to do so;
• Mr. Goldstein would be in a conflict of interest if he called someone as a witness to give evidence that would exculpate Ms. Willett but inculpate Mr. Willett. In support of this submission, the Crown states that a person named Jim Calhoun was mentioned during the cross examination of a Crown witness at trial. However, the Crown has not described Mr. Calhoun’s anticipated evidence; and
• The Crown submits that it has offered a plea bargain to Ms. Willett, which would include a period of incarceration and require a truthful account of who participated in the events that are the subject of the charges. The Crown submits Mr. Goldstein cannot give Ms. Willett free, unbiased advice on the merits of any proposed plea bargain given his duty of loyalty to Mr. Willett, especially given that Mr. Willett has filed a notice of appeal.

The Respondent’s Position

[10] Ms. Willett opposes the removal of Mr. Goldstein as her counsel on the following grounds:

• There is and always has been a waiver of confidential information;
• There is and always has been a joint and common defence;
• There is no issue of divided loyalty.

[11] Ms. Willett’s affidavit states:

… Mr. Kayfetz asked Mr. Goldstein, at my request and with my and my [ sic ] husband Gary’s consent, to assist him in my trial. I see this arrangement as the formal recognition of the on-going cooperation and sharing of information between counsel that has been occurring from the beginning of these proceedings when Mr. Moishe Reiter Q.C., was first retained and then when Mr. Sam Goldstein began representing Gary.

Gary Willett testified at his trial. He did not implicate me.

Indeed, it has always been our instructions to our lawyers to conduct a joint and common defence as it is our belief that the allegations against us are fabricated by disgruntled family members who have convinced themselves, Tim Goldrick, and Barbara Bennet[t] that we have committed these offences. Furthermore, these family members have convinced others to testify against us.

I want to make it clear that what Gary and I are asking this court to do is to give formal recognition to what has been an informal arrangement of cooperation and sharing information between our respective lawyers . This is what I assumed would occur when Gary and I retained Mr. Moishe Reiter Q.C. and this is what I instructed Mr. Kayfetz to carry-on with when Mr. Goldstein replaced Mr. Moishe Reiter Q.C.

I can say with great confidence that there is no conflict between myself and my husband Gary. We are not adverse in our interests.…

I am of the firm belief that there is no confidential information in relation to this case that my husband would have shared with his former counsel, Mr. Goldstein, that I would not know and that there is no confidential information in relation to this case about my former husband that I could tell Mr. Goldstein that he would not already know.…

Mr. Goldstein has an in-depth understanding of the Crown’s case and he can assist and guide Mr. Kayfetz in identifying the strengths and weaknesses of the Crown’s case, the legal arguments, and general strategy. I simply want the benefit of his knowledge. Indeed, before the issue of my fitness, Mr. Goldstein prepared some of the legal materials that were going to be used jointly in our trial; and, that [ sic ] Mr. Kayfetz wants to use now.

I think it is unfair that Crown Counsel will have the benefit of how to improve her case after prosecuting Gary, but I cannot have the benefit of Mr. Goldstein’s experience who can do the same for me in defending my case.

To be perfectly clear, one of my biggest concerns is losing the benefit of Mr. Goldstein’s experience. I cannot help but think that no reasonably informed member of the public would see Mr. Goldstein joining Mr. Kayfetz in defending me as unreasonable given:

a) The ongoing co-operation and sharing of information that is and has already occurred; and,

b) The fact that Mr. Goldstein can give me the benefit of his experience in Gary’s trial.

… I also want to make it clear that Mr. Goldstein is not replacing Mr. Kayfetz. The arrangement is that Mr. Goldstein will be assisting Mr. Kayfetz in the preparation, conduct and execution of my trial; however, I will look to Mr. Kayfetz for advice as my senior counsel.

Indeed, I told Mr. Kayfetz to work closely with Mr. Goldstein in the preparation of my joint case with Gary and waived confidentiality so that he could do so. I asked Mr. Kayfetz to keep in touch with Mr. Goldstein during Gary Willett’s case and keep Mr. Goldstein up to date on what was occurring with me. As previously stated, I have always seen our defence as a joint defence. It made sense to me to have the two lawyers working together.

I have listened to the advice of Mr. Worsoff. I have considered whether to permit Mr. Goldstein to assist Mr. Kayfetz in representing me. I considered whether Mr. Goldstein would consciously or unconsciously come to divide his loyalties between Gary and me or that he would withhold confidential information from me that Gary gave him.

I have no concern that Mr. Goldstein will be disloyal to me.

I have no concern that Mr. Goldstein has confidential information that he will withhold from me.

I am not concerned if Gary is compelled to testify at my trial. [Emphasis added.]

[12] Mitchell Worsoff provided Ms. Willett with independent legal advice. His “Certificate of Independent Legal Advice” states:

I reviewed the Crown application with Maria to ensure she understood the specific issues raised.

I explained to Maria that she has a right to testify, and that, according to the Crown, Mr. Goldstein’s duties of loyalty to her and his former client conflict.

I explained that she needs advice on whether to testify and whether to plead guilty from her counsel that is free from conflict.

She needs to know that in deciding whether or not to call witnesses, her lawyer must proceed in her best interests.

I further explained that she might not be able to argue any issues related to Mr. Goldstein’s assistance herein later as appellate grounds should an appeal be put forth.

For her part, Maria advised me that she does not perceive any conflict between her interests and those of Gary. Any information Gary disclosed to Mr. Goldstein, was already known to her due to their close relationship.

She informed me that Mr. Kayfetz and Mr. Goldstein have always been in cooperation, sharing information with an eye to presenting a joint and common defence.

She accepts the limitations of her potential appellate grounds.

She informed me that Mr. Goldstein is not replacing Mr. Kayfetz. Mr. Goldstein is joining her defence team because she wants the benefit of Mr. Goldstein’s experience having already cross examined the witnesses at Gary’s trial and who are scheduled to testify against her at her trial. …

Having explained the above, Maria continues to express her desire to permit Mr. Goldstein to assist Mr. Kayfetz in her trial.

[13] Mr. Goldstein’s affidavit states in part:

… I have now had the benefit of cross examining the witness[es] in Gary’s trial that will testify against Maria in her trial.

Maria wants the benefit of that experience. Mr. Kayfetz too.

The Crown is in advantageous position because it will have had the benefit of the experience in Gary’s trial.

It is my opinion that any reasonable member of the public would not be offended if I assisted Mr. Kayfetz. Furthermore, permitting me to assist Maria in her trial is in the interest of justice because it gives Maria the same advantage of dealing with the same witnesses as the Crown had.

… I want to make it clear that I will be assisting Mr. Kayfetz. I am not replacing him. He is senior counsel. He will be giving Maria advice on the important issues that she and she alone must decide.

It is odd to learn that the Crown is considering calling Gary to testify since the Crown vigorously impugned his credibility.

The fact that the Crown previously vigorously impugned Gary’s credibility is a factor Mr. Kayfetz will take into consideration in deciding whether to call him.

Mr. Kayfetz can cross examine him.

I have not discussed the plea bargain with Maria.

James Calhoun came up at the preliminary hearing because he had assisted Maria’s adopted daughter Elizabeth write a letter that contradicted an affidavit Elizabeth made earlier in a family law application against Maria and Gary.

Elizabeth was a named complainant at the preliminary hearing. She was not named on Gary’s Indictment nor is Elizabeth named on Maria’s indictment.

Mr. Kayfetz will consider whether to call James Calhoun.

[14] Mr. Willett states that he consents to Mr. Goldstein assisting Mr. Kayfetz in defending Ms. Willett at trial. His statements largely replicate those provided by Ms. Willett. He states:

I testified at my trial and I did not implicate Maria. Indeed, it has always been our instructions to our lawyers to conduct a joint and common defence as it is our belief that the allegations against us are fabricated by disgruntled family members who have convinced themselves, Tim Goldrick, and Barbara Bennett that we have committed these offences. Furthermore, these family members have convinced others to testify against us.

What Maria and I are asking this court to do is to give formal recognition to what has been an informal arrangement of cooperation and sharing information between our respective lawyers. This is what I assumed would occur when Maria and I retained Mr. Moishe Reiter Q.C. and this is what I instructed Mr. Goldstein to carry-on with when he replaced Mr. Moishe Reiter Q.C.

Indeed Mr. Reiter explained to me the implications of a joint and common defence when I asked him to cooperate with Maria’s counsel.

I can say with great confidence that there is no conflict between myself and Maria. We are not adverse in interests. Indeed, I am only interested that Maria receive the best defence that she can get and that involves the assistance of Mr. Goldstein.

Maria and I have always had a strong, supportive, and trusting marriage. I am of the firm belief that there is not confidential information in relation to this case that she would have shared with her counsel, Mr. Dan Kayfetz that I would not know and that there is no confidential information in relation to this case about Maria that I did not tell Mr. Goldstein.

I told Mr. Goldstein to keep in touch with Mr. Kayfetz and let him know what is going on in my trial.

I have listened to the advice of Mr. HARNETT. I have considered whether I would permit Mr. Goldstein to assist Mr. Kayfetz in representing Maria. I considered whether Mr. Goldstein would consciously or unconsciously come to divide his loyalties between Maria and me or that there is any confidential information that I gave to him that Maria does not already know.

I have the utmost confidence in Mr. Goldstein’s loyalty to me. I see joining Maria’s defence team as an extension of that loyalty.

I have no concern that Mr. Goldstein has confidential information about me that Maria does not already know.

I understand that if Mr. Goldstein can assist Mr. Kayfetz I am barred from raising any ground or appeal relating to conflict in my appeal.

I, furthermore, understand that should circumstances change, the court may revisit whether it is appropriate for Mr. Goldstein to remain assisting Mr. Kayfetz.

… Notwithstanding any concerns expressed to me, I want Mr. Goldstein to assist Mr. Kayfetz in Maria’s trial. [Emphasis added.]

[15] Aaron B. Harnett provided Mr. Willett with independent legal advice. His “Certificate of Independent Legal Advice” states:

I reviewed the Crown application with [Mr. Willett] to ensure he understood the specific issues raised.

I explained to Gary that if Mr. Goldstein is permitted to represent Maria, Mr. Goldstein would have to disclose confidential information that Gary provided to Mr. Goldstein .

I explained the situation (which I believe to be hypothetical, remote and unrealistic) wherein he might be prejudiced by Mr. Goldstein acting for Maria in this manner. It is logically possible that inculpatory evidence which arises for the first time at Maria’s trial, evidence that is adduced as a result of Mr. Goldstein’s effort at Maria’s trial, might later be used against Gary. However this would only result in actual prejudice to Gary if his conviction appeal, presently before the Court of Appeal for Ontario, is granted and a new trial is ordered ... Another possible and similarly unlikely scenario involves new evidence emerging as a result of Mr. Goldstein’s activity in Maria’s trial which is then used as “fresh evidence” on my appeal.…

I explained that while he was a compellable witness for the Crown at Maria’s trial, he could invoke spousal privilege regarding marital communications. I explained that he was also a compellable witness by his wife in any event. I also explained the protection afforded witnesses under s. 5 of the Canada Evidence Act.…

For his part, Gary has advised me that he does not perceive any conflict between his interests and those of Maria. Any information that he disclosed to Mr. Goldstein Maria already knows.

He accepts that his appeal may be adversely impacted by his decision to consent to Mr. Goldstein acting for Maria.

Having explained the above, Gary continues to express his desire to permit Mr. Goldstein to assist Mr. Kayfetz in her trial.

[Emphasis added.]

Analysis

[16] An accused has the right to retain counsel of his or her own choice, unless it would result in a conflict of interest that undermines public confidence in the administration of justice: R.v. Speid (1983), 43 O.R. (2d) 596 (C.A.) at p. 598; R. v. Hendrickson, [2002] O.J. No. 1982 (Ont. S.C.) at para 19. Confidence in the adversarial system of justice requires that the accused receive the effective assistance of counsel. Not only must counsel be competent, counsel must also give his or her undivided loyalty to champion the accused’s cause without regard to counsel’s personal interests or the interests of anyone else, including a former client: R. v. Widdifield (1995), 25 O.R. (3d) 161 (C.A.), at pp. 171-72.

[17] The public interest in ensuring the undivided loyalty of counsel was explained by the Supreme Court of Canada in R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 12:

Unless a litigant is assured of the undivided loyalty of the lawyer, neither the public nor the litigant will have confidence that the legal system, which may appear to them to be a hostile and hideously complicated environment, is a reliable and trustworthy means of resolving their disputes and controversies[.]

[18] The duty of loyalty owed by counsel to a client includes a duty of confidentiality, a duty to avoid conflicts of interest, a duty of commitment to the client’s cause and a duty of candour with the client on matters relevant to the retainer: Neil, at paras. 17-19.

[19] The Willetts also state that they instructed counsel to carry on an “informal” arrangement of cooperation and information sharing. Unlike the situation in R. v. Parsons (1992), 72 C.C.C. (3d) 137 (Nfld. C.A.), there is no evidence that these informal waivers of the fiduciary duty of confidentiality were reduced to writing, expressed to be irrevocable or executed with independent legal advice.

[20] The duty of loyalty requires that counsel will not subsequently take an adversarial position against a client with respect to the same subject-matter: Speid, at p. 600. Similarly, in R. v. Baltovich (2003), 170 O.A.C. 327 (C.A.), at para. 12, Justice Rosenberg stated:

The mischief that the conflict of interest and duty of loyalty rules seek to prevent is the spectre of counsel for a client acting against the interests of another client, whether present or former.

[21] A breach of the duty of loyalty to a client exists where there is a “substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person”: Neil, at para. 31.

[22] In assessing in advance of trial whether an accused’s counsel of choice should be disqualified for conflict of interest, I am mindful of the following views:

(a) In Widdifield, Doherty J.A. stated at para. 33:

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. The trial judge’s task is particularly difficult since they cannot be privy to the confidential discussions which may have passed between the clients and counsel and which may reveal the source of potential conflicts. Given those circumstances, trial judges must proceed with caution and when there is any realistic risk of a conflict of interests they must direct that counsel not act for one or perhaps either accused.

(b) In Wheat v. United States, 486 U.S. 153 at p. 162 (1988), Justice Rehnquist stated:

Unfortunately for all concerned, a district court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly. 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. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics. Nor is it amiss to observe that the willingness of an attorney to obtain such waivers from his clients may bear an inverse relation to the care with which he conveys all the necessary information to them.

[23] I accept Mr. Willett’s and Ms. Willett’s evidence that they instructed their lawyers to advance a “joint and common defence.” However, unlike the circumstances in R. v. Papasotiriou-Lanteigne, 2017 ONSC 3449, the Willetts have provided little explanation of their “joint and common defence” other than to say that the allegations against them are fabricated by certain disgruntled family members. Ms. Willett does not deny that she may take the positions anticipated by the Crown, described above, related to the theft of Mr. Goldrick’s ODSP cheques or the unlawful taking of his baby. In my view, there remains in the circumstances of this case a substantial risk that a defence that seeks to exculpate Ms. Willett during her trial will necessarily inculpate Mr. Willett. I note that in the factual circumstances of this case, the inculpation of Mr. Willett need not be explicit; Ms. Willett’s denial of committing any element of the offence may inculpate Mr. Willett by implication. Accordingly, by assisting in mounting Ms. Willett’s defence, there is a substantial risk that Mr. Goldstein will breach his duty of undivided loyalty to Ms. Willett and/or Mr. Willett as set out in Neil at para. 12.

[24] I note that Mr. Willett’s evidence leaves open the possibility that he may ask the court at trial to disqualify Mr. Goldstein “should circumstances change.” Unlike the case in R. v. Bogiatzis (2002), 162 C.C.C. (3d) 374 (Ont. S.C.), at para. 13, Mr. Willett did not waive “any and all rights” with respect to conflicts. In any event, such waiver is not determinative given the need for public confidence in the criminal justice process: R. v Robillard (1986), 28 C.C.C. (3d) 22 (Ont. C.A.), at pp. 27-28.

[25] I acknowledge that an accused’s right to retain and instruct counsel of her choice is inferentially entrenched in ss. 7, 10(b) and 11(d) of the Canadian Charter of Rights and Freedoms, and it is not to be interfered with lightly: Robillard at para. 11, R. v. Brissett (2005), 74 O.R. (3d) 248 (S.C.) at paras. 49 and 54. However, I am satisfied that this is a case where the removal of counsel is warranted. In my view, permitting Mr. Goldstein to represent Ms. Willett would undermine public confidence in the administration of justice for a few reasons.

[26] First, it would be improper for Mr. Goldstein to have any involvement (either directly or indirectly as co-counsel with Mr. Kayfetz) in the preparation of Ms. Willett’s defence, or her representation at trial. This is because there is a “substantial risk” as per Neil (or “realistic risk” as per Widdifield) that evidence elicited or positions taken may inculpate Mr. Willett. The fact that Mr. Kayfetz may act as an independent co-counsel does not sufficiently minimize this risk. As noted by M. Proulx and D. Layton in Ethics and Criminal Law, 2nd ed. (Toronto: Irwin Law, 2015) at p. 292 and as cited in Brissett at para. 69:

Even if screening devices [such as independent co-counsel] can be employed, some courts have with good reason been reluctant to permit the use of independent counsel as a means of sidestepping a conflict-of-interest issue.… [It may be that] employing independent counsel fails to answer adequately a concern that a lawyer should not take a position adverse to a former client regarding the same or a related subject matter.… The general function of helping an accused who takes a position materially adverse to the former client can be seen as highly problematic in light of counsel’s persisting duty of loyalty to ex-clients.

[27] Accordingly, the fact that Mr. Kayfetz may act as sole counsel in instances where the Willett’s interests are most materially adverse is not dispositive. There remains a realistic risk that by participating as co-counsel in any aspect of the case, Mr. Goldstein may breach his duty of loyalty to Mr. Willett and/or Ms. Willett during the course of Ms. Willett’s trial, or that an appearance of impropriety will arise.

[28] Second, Mr. Willett may be called as a witness at trial. It would be unseemly for him to appear as counsel and have any involvement, direct or indirect, in the cross-examination of his former client in respect of the same events for which he represented him. The potential for contradiction may go well beyond the two examples provided by the Crown related to the conversion of Mr. Goldrick’s ODSP cheques and unlawful taking of Mr. Goldrick’s baby.

[29] Third, Mr. Goldstein should not be collaborating with counsel who is providing advice on whether Ms. Willett should accept a plea bargain that may inculpate Mr. Willett.

[30] Despite their current views to the contrary, the interests and positions of Ms. Willett and Mr. Willett may well diverge at Ms. Willett’s trial. Confidence in the administration of justice is undermined if a client is not assured, nor seen to be assured, of counsel’s undivided loyalty. In my view, the Crown has provided a sufficient basis upon which I find that there is a substantial risk that Mr. Goldstein’s continued representation of Ms. Willett, even as co-counsel, would be materially and adversely affected by Mr. Goldstein’s duties to his former client, Mr. Willett.

Conclusions

[31] The Crown’s application to remove Mr. Goldstein as counsel of record for Ms. Willett is granted.

Faieta J. Released: August 30, 2018