R. v. Tsega, 2019 ONSC 7595

COURT FILE NO.: 11-1878

DATE: 2019/11/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Applicant

– and –

Sam Tsega

Respondent

Dallas Mack, for the Applicant

James Foord, for the Respondent

HEARD: November 14, 2019

Reasons for decision on application to remove counsel of record

A.E. London-weinstein j.

1The maintenance of public confidence in the administration of criminal justice requires that trials not only be fair, but that they be seen to be fair.

2Over two decades ago, the Ontario Court of Appeal reaffirmed that the right to choose counsel was considered a fundamental component of the criminal justice system which preceded the Charter. As a result of its critical importance to the functioning of the criminal justice system, it was recognized as a right worthy of constitutional protection. R. v. McCallen, 1999 CanLII 3685 (ON CA), [1999] 131 C.C.C.(3d) 518 paragraph 33. The right to counsel of choice enhances public trust that the system is operating fairly.

3It is axiomatic that the relationship between counsel and client is based on trust. In this case, Mr. Tsega who is a young man facing retrial on a manslaughter charge, placed his trust in Mark Ertel.

4That trust was well placed. Mr. Ertel is a highly skilled lawyer who is widely regarded by both the bench and the bar for his professional excellence.

5Mr. Tsega was convicted of manslaughter in the death of Michael Swan in 2016. See R. v. Tsega, 2016 ONSC 4145. Mr. Kristopher McLellan and Mr. Tyler Tanguay were key crown witnesses in that trial. Mr. Ertel formerly represented both men. Mr. McLellan was convicted of first degree murder as the shooter and Mr. Tanguay was an eyewitness to the murder and a good friend of the deceased.

6In McCallen, the court noted that s.10(b) provides a right that is an important component in the objective perception of fairness of the criminal justice system.

"Criminal proceedings are adversarial in nature and pit the accused against the authority of the state. Without adequate safeguards the resulting contest may be unfairly weighted in favour of the state. The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them. Including with this fundamental right to counsel, the additional right to choose one's own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent" (Para 37)

7The corollary to this point, which was central in McCallen, and is also central to the issue before me, is that the

"Perception of fairness will be damaged and in many cases severely so, if accused persons are improperly or unfairly denied the opportunity to be represented by the counsel of their choice." (Para 38)

8The court went on to point out that the intangible value to the client of having his counsel of choice, and the symbolic value to the system of criminal justice of the s. 10(b) right are of fundamental importance and must be vindicated when breached.

9The Crown seeks Mr. Ertel's removal due to the potential for either actual or perceived conflict of interest.

10Mr. Foord proposes to resolve the issue of actual or perceived conflict by admitting the evidence of Tyler Tanguay, thereby eliminating any need for Mr. Ertel to cross examine a former client. Mr. McLellan has provided a waiver of privilege and confidentiality.

11The Crown advises that Mr. McLellan has sought leave to appeal his conviction to the Supreme Court of Canada. I have no further information regarding the merit of that leave application.

12On behalf of Mr. Ertel, Mr. Foord argued that if no confidential information was exchanged between Mr. McLellan and Mr. Ertel, a reasonably well informed member of the public would not be troubled by Mr. Ertel cross examining a former client on behalf of Mr. Tsega.

13To establish that no confidential information would be available to be potentially used against Mr. McLellan by Mr. Ertel, it was proposed that Mr. Ertel turn over his homicide file relating to Mr. McLellan to the Crown Attorney. It was proposed that Mr. Ertel and Mr. McLellan be subject to cross-examination by Mr. Mack, who is conducting the prosecution against Mr. Tsega.

14In my view, even if there was no possibility of even the appearance that Mr. Ertel was exploiting information he derived as a result of his relationship as counsel; this does not resolve the matter.

15Mr. Ertel was removed from the record once before in regard to this very matter. Justice Fraser removed him in July of 2010 when he was counsel for Mr. McLellan, due to a potential conflict with Mr. Tanguay.

16Mr. Ertel was removed despite counsel's submission that it would not be necessary to challenge Mr. Tanguay's credibility in the trial. Counsel for Mr. Ertel conceded that it is unseemly for a lawyer to cross-examine a former client in regard to his criminal record, and his credibility. However, in the current scenario, it appears that Mr. Ertel will cross examine Mr. McLellan on his criminal record and in relation to his credibility generally. This is contingent on whether Mr. McLellan testifies or decides to receive another contempt conviction for refusing to testify, which is what happened in the first trial.

17If Mr. McLellan testifies, a waiver will not expunge the appearance of unfairness which is engendered when counsel is required to cross-examine a former client in relation to his credibility.

18As Justice Hill pointed out in R. v. Brisket, 2005 CanLII 2716 (ON SC), [2005] O.J. No. 343 "Cross examination of a former client raises the potential for a conflict of interest. This information acquired in the course of representing a client may not subsequently be used or revealed by the lawyer at a disadvantage of his or her former client. Even where the prior representation did not involve substantially the same subject matter as at issue in the present criminal trial, there may exist circumstances for the use, potential for use, or appearance of temptation or opportunity to use, confidential information secured in the course of an earlier retainer relationship with the now prosecution witness."

19There are also potential problems associated to the waiver. Enforceability is an issue. If Mr. McLellan were to resile from his waiver at trial, a mistrial may result. In the alternative of a mistrial, the trial judge could face the unenviable prospect of forcing the trial onward, over the objections of Mr. McLellan.

20The possibility of a former client being cross-examined by his former lawyer in the face of a rescinded waiver would have the appearance of unfairness and would undermine public confidence in the fairness of the trial process.

21I appreciate that this possibility is uncertain, however, it is one which I must consider. As indicated previously, Mr. McLellan was found in contempt for refusing to testify in Mr. Tsega's last trial. He may refuse to testify again in this trial. However, he was described in the last trial by one of the witnesses as a "loose cannon." The trial judge found that Mr. Tsega knew that Mr. McLellan was unpredictable.

22Given Mr. McLellan's nature, it is possible he may have a change of heart regarding being cross examined by his former counsel in Mr. Tsega's upcoming trial.

23Further, if Mr. McLellan is successful in his leave application, at some point he may face another trial. His file would have been disclosed to the Crown. His former counsel would have been cross-examined in regard to potential information shared. He may have been cross-examined by Mr. Mack himself. The procedure proposed would work an unfairness to him in any future trial and would also be rightfully perceived to be unfair by a well informed and reasonable member of the public.

24The fact that there are two former clients involved also increases the likelihood that the public may have concerns about perceived fairness.

25I appreciate that Mr. Ertel has agreed not to cross-examine Mr. Tanguay and to admit his evidence. I accept that at this point, it is not necessary in his view from a tactical perspective. However, if there is one thing which is predictable in criminal trials, it is that they are unpredictable. The need for cross-examination may arise. I am required to some degree to speculate as to the issues which may reasonably arise and the course the trial may take. R v. Widdifield [1995] O.J. No. 2303

26If Mr. Ertel simply admits Mr. Tanguay's evidence the trier may not become aware that Mr. Tanguay had between $400 to $500 in his pocket at the time of the shooting for which he was present unless the Crown agrees to this admission. This would appear to be relevant material evidence relating to Mr. Tanguay's credibility. The trier should not be deprived of that evidence without good reason. It is also alleged that Mr. McLellan stole a significant amount of marijuana from the residence after the murder. Mr. Ertel will presumably be cross-examining Mr. McLellan in regard to this issue.

27There are also broader concerns related to the public's perception of the administration of justice. This case is a retrial. Significant public resources were allocated to the first trial and significant public resources will be allocated to the next trial. Witnesses have to testify again. Court time, which is a scarce resource, has been allocated to this matter. Mr. Tsega has had this matter hanging over his head for a prolonged period of time. If a mistrial were to occur as a result of allowing Mr. Ertel to continue to act, public confidence in the manner in which the trial was handled could rightfully be thrown into doubt.

28The fundamental right to counsel of choice which must be zealously protected by the court is subject to reasonable limitations. R. v. Speid, 1983 CanLII 1704 (ON CA), [1983] O.J. No. 3198 para 5

29In determining whether Mr. Ertel should be removed, I have balanced Mr. Tsega's right to retain counsel of choice and the public interest in the administration of justice, along with basic principles of fundamental fairness, as set out in Speid, at para 6.

30Although Mr. Ertel was only counsel for Mr. McLellan for a brief time, and the matter for which he represented Mr. Tanguay is unrelated, it is my view that public perception and interest in the perceived fairness of these proceedings require that Mr. Ertel be removed.

31I appreciate that in this decision, I have sacrificed Mr. Tsega's right to counsel of choice; a right which enhances public confidence in the administration of justice. As a result, this young man is losing a highly skilled and experienced advocate with whom he has developed a relationship of trust. However, in the circumstances of this case, this removal was necessary for all of the reasons outlined.

A.E. London-Weinstein J.