COURT FILE NO.: CR-1087-19

DATE: 2020-02-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

J. Ostapiw and R. Parsons, for the Crown

• and -

ROBERT STEVEN WRIGHT

P.B. Keaney and M. Venturi, for the Accused

Accused

HEARD: December 11, 2019 at Sudbury, Ontario

Mr. Justice J.S. Fregeau

REASONS ON APPLICATION

PUBLICATION BAN PURSUANT TO

SECTION 648(1) OF THE CRIMINAL CODE

Introduction

[1] Robert Steven Wright (“the accused”) is charged with second degree murder in the death of Renee Sweeney on January 27, 1998.

[2] The accused was arrested on December 12, 2018, and remains in custody, his application for judicial interim release having been dismissed on March 27, 2019. An Indictment was preferred on August 9, 2019.

[3] In this Application, the Crown requests an order removing Mr. P.B. Keaney and Mr. M. Venturi as counsel of record for the accused.

[4] The Crown submits that defence counsel are in a conflict of interest because Mr. Keaney represented John Brian Fetterly, who was charged with the murder of Ms. Sweeney on February 10, 1998. The charge against Mr. Fetterly was withdrawn on February 12, 1998.

Background

[5] On January 27, 1998, while working at the Adult Only Video store located at 1500 Paris Street, Sudbury, Ontario, Ms. Sweeney was stabbed multiple times resulting in her death.

[6] At approximately 11:30 a.m. that day, two witnesses observed a man inside the video store near Ms. Sweeney’s body. This man was observed leaving the store. Police attended and initiated a canine search resulting in the discovery of a pair of white cotton gloves and a nylon jacket some distance from the scene of the murder. DNA analysis determined that both the gloves and jacket had Ms. Sweeney’s blood on them. The murder weapon has never been recovered.

[7] Fingerprint impressions in Ms. Sweeney’s blood were found on a cash tray behind the counter where Ms. Sweeney’s body was found. Police photographed these fingerprints. At the autopsy of Ms. Sweeney’s body, fingernails from both of her hands were clipped and preserved.

[8] On February 9, 1998, police received an anonymous phone call from a Sudbury pay phone. Police traced the call, attended the area of the pay phone and came into contact with Mr. Fetterly, who was well known to local police. Mr. Fetterly was taken into custody on other matters.

[9] Mr. Fetterly’s fingerprints were compared to those found in Ms. Sweeney’s blood on the cash tray in the video store. One of those fingerprints was initially identified as belonging to Mr. Fetterly. As a result, on February 10, 1998, Mr. Fetterly was charged with the murder of Ms. Sweeney.

[10] A further fingerprint analysis determined that the fingerprints on the cash tray were not those of Mr. Fetterly. The murder charge against Mr. Fetterly was withdrawn on February 12, 1998. However, police continued to consider Mr. Fetterly a suspect and continued to investigate him.

[11] Later in 1998, a “cast-off” DNA sample was obtained from Mr. Fetterly and compared to suspect DNA found underneath Ms. Sweeney’s fingernails. A DNA analysis report of the Centre of Forensic Sciences (“CFS”), dated August 28, 1998, determined that Mr. Fetterly was not a possible contributor to the DNA found underneath Ms. Sweeney’s fingernails.

[12] Fifteen years later, in 2013, a case review was undertaken by the CFS. Three separate male DNA profiles were generated from the existing forensic evidence; a male DNA profile from the fingernails of Ms. Sweeney and a male DNA profile from each of the jacket and cotton gloves recovered by police on January 27, 1998.

[13] A CFS report dated October 16, 2013, provided the following conclusions:

1. The DNA profile from the nylon jacket is from a male relative of the donor of the DNA profile found under Ms. Sweeny’s fingernails;

2. The DNA profile from the nylon jacket could be from a brother of the donor of the DNA found under Ms. Sweeney’s fingernails;

3. The DNA profile from the cotton gloves is from a male relative of the donor of the DNA under Ms. Sweeney’s fingernails; and

4. The DNA profile from the cotton gloves could belong to the father of the donor of the DNA found under Ms. Sweeney’s fingernails.

[14] In 2017, police were provided with a composite sketch of the suspect in the murder of Ms. Sweeney, prepared by Parabon Nanolabs (“Parabon”), an independent American DNA technology lab which specializes in “DNA phenotyping”, the process of predicting physical appearance and ancestry from DNA evidence.

[15] In 2018, Parabon contacted investigating officers and offered their assistance in the ongoing investigation into the murder of Ms. Sweeney. Parabon’s offer was accepted and they proceeded with genetic genealogy (ancestry) testing of the DNA profile generated from the DNA found under Ms. Sweeney’s fingernails. Parabon compared this DNA profile with information from public ancestry databases.

[16] Parabon’s analysis concluded that a male child of Robert and Wendy Wright would fit in the ancestry relationship to the donor of the DNA found under Ms. Sweeney’s fingernails. Police investigation determined that Robert Wright Sr. and Wendy Wright have two biological children, Christopher Wright and the accused. On the date of Ms. Sweeney’s murder, the accused was a Grade 13 student at a local high school located approximately 600 meters from the scene of the murder.

[17] In due course, DNA cast off samples were obtained from Robert Wright Sr. and Wendy Wright and submitted to the CFS for analysis. On November 7, 2018, police received a report from the CFS which concluded that Wendy Wright could not be excluded as the biological mother of the male DNA profile generated from the fingernails of Ms. Sweeney. This CFS report also concluded that Wendy Wright could not be excluded as the biological mother of the donor of the male DNA profile generated from the nylon jacket.

[18] DNA cast off samples were also obtained from Christopher Wright and the accused and submitted to the CFS for analysis. On November 15, 2018, police received a report from the CFS which concluded that Christopher Wright cannot be excluded as the source of the male DNA profile generated from the nylon jacket. This CFS report also concluded that the accused cannot be excluded as the source of the male DNA profile generated from the right-hand fingernails of Ms. Sweeney. This report also concluded that both these individuals were excluded as the source of the male DNA profile generated from the cotton gloves.

[19] On November 30, 2018, police received a further report from the CFS which concluded that Robert Wright Sr. cannot be excluded as the source of the male DNA profile generated from the cotton gloves.

[20] As noted above, the accused was arrested on December 11, 2018 and charged with the murder of Ms. Sweeney. The accused had no criminal record and the police therefore did not have his fingerprints on record. The accused was fingerprinted after being arrested.

[21] A Latent Print Examination Report from Evolve Forensics, Las Vegas, Nevada, dated February 1, 2019, concluded that two fingerprints taken from the cash drawer at the crime scene matched the left thumb and right index finger of the accused. A subsequent report of the Ontario Provincial Police Forensic Identification and Photographic Services Section, dated February 20, 2019, came to an identical conclusion.

[22] As noted by Gareau J. in his comprehensive Reasons for Decision on the accused’s judicial interim release application, the case against the accused is circumstantial and “really about the scientific evidence. If the scientific evidence, that is the DNA and fingerprint evidence, holds up there will be a certain result. If that evidence does not hold up, then the result will be different.”

[23] The accused has been represented by Mr. Keaney and Mr. Venturi since the date of his arrest. In response to this Application, counsel for the accused arranged for Mr. Robert John Beckett, a Sudbury lawyer, to meet with the accused and to provide him with independent legal advice in regard to the Crown’s Application to have his counsel of choice removed as his counsel of record.

[24] The accused and Mr. Beckett have provided affidavits for the purposes of this Application. The affidavit of the accused, sworn November 25, 2019, is attached to this decision as Schedule “A”. The affidavit of Mr. Beckett, sworn August 23, 2019, is attached as Schedule “B”.

[25] In summary, the accused deposes as follows:

1. That he has reviewed the Application Record, the Crown’s factum and his counsels’ responding draft factum;

2. That he met with Mr. Beckett on August 10, 2019, between 9:40 p.m. and 11:00 p.m. at which time they reviewed and discussed the materials on the Application and the positions of the Crown and his counsel;

3. That he fully understands the issues in play on this Application specifically that “everything revolves around a previous representation of Mr. Keaney of a Mr. John Fetterly”;

4. That he is of the understanding that neither the Crown or his counsel consider Mr. Fetterly to be “a viable third-party suspect”, that he has not instructed his counsel to include Mr. Fetterly as part of their defence and that he would not be able to advance Mr. Fetterly as a third-party suspect with his current counsel; and

5. That his counsel of choice are Mr. Keaney and Mr. Venturi and that he is “waiving any remote possibility that exists at this point in time for there to be a conflict of interest.”

[26] In summary, Mr. Beckett deposes as follows:

1. That he reviewed the Crown’s Application Record and factum, the draft factum of defence counsel and relevant caselaw prior to meeting with the accused on August 10, 2019;

2. That he met with the accused for 80 minutes, reviewed all materials with him and was satisfied that the accused was fully informed of the issues on this Application and the positions of the Crown and his counsel as to those issues;

3. That the accused appeared “to be both intelligent and articulate and when asked if he could identify the issues…before the court…he had a few questions that were pertinent but not reflective of a misunderstanding” of the issues;

4. That the accused was aware of the consequences if the Application succeeded or was dismissed and that he was satisfied that the accused understood everything that was discussed and had no unresolved questions as a result of their discussions; and

5. That he applied no pressure and that he “offered no opinion in giving independent legal advice”.

The Position of the Crown

[27] The Crown submits that Mr. Keaney’s prior representation of Mr. Fetterly places him and any other lawyers in his firm in a conflict of interest when defending the accused and that the removal of present defence counsel is necessary to:

1. Protect the best interests of the accused;

2. Protect public confidence in the integrity of the justice system; and

3. Safeguard against counsel potentially breaching ethical or professional responsibilities.

[28] The Crown submits that Mr. Keaney’s continued representation of the accused creates a substantial risk of a conflict of interest arising during the accused’s trial for two reasons:

1. Mr. Keaney will be unable to effectively challenge the DNA and fingerprint evidence, the foundation of the Crown’s case against the accused, without implicating Mr. Fetterly; and

2. Mr. Keaney will be precluded from advancing an affirmative third-party suspect defence suggesting that Mr. Fetterly may be responsible for Ms. Sweeney’s murder.

[29] The Crown also submits that the accused’s waiver of any potential conflict of interest on the part of his counsel of choice is not clear and unequivocal, was not given with independent legal advice and, in all the circumstances of this case, is not determinative of the issue in any event.

[30] The Crown contends that on an application for removal of counsel because of an alleged conflict of interest, the court must necessarily speculate on what may occur during the trial and how the alleged conflict of interest could arise and impact the trial.

[31] The Crown acknowledges that they are obviously not conceding that Mr. Fetterly is a viable third-party suspect. However, the Crown position on that issue at this point in the prosecution is not particularly relevant, according to the Crown.

[32] The Crown asks the court to note that numerous witnesses have provided statements to the police concerning Mr. Fetterly, both before and after he was eliminated as a suspect as a result of the 1998 DNA analysis. Further, the Crown submits that Mr. Fetterly has an extensive criminal record for offences involving violence.

[33] Of particular importance, according to the Crown, given the nature of the offence and where it occurred, is that numerous witnesses have commented on Mr. Fetterly’s violent nature, the fact that he habitually carries a knife and his predilection for pornography. The Crown submits that two of these witness statements included what could be construed as a confession by Mr. Fetterly to the murder of Ms. Sweeney.

[34] The Crown submits that Mr. Keaney’s continued representation of the accused is tantamount to a complete abandonment of a third-party suspect defence pointing to Mr. Fetterly at a relatively early stage in the prosecution, prior to full disclosure being completed and reviewed by the defence. The Crown submits that any reasonably competent defence counsel would, at the very least, attempt to get this evidence before a jury.

[35] The Crown submits that in abandoning a third-party suspect defence, counsel are putting themselves in a position where they are unable to provide the accused with full answer and defence, directly as a consequence of Mr. Keaney’s prior representation of Mr. Fetterly.

[36] It is not in dispute that the strength of the Crown’s case rests almost entirely on the DNA and fingerprint evidence. It is also not in dispute that the defence will be required to do everything possible to undermine that evidence, including calling their own DNA and fingerprint experts.

[37] The Crown submits that the court must anticipate that Mr. Fetterly’s arrest, the reasons for his arrest and the reasons for the withdrawl of the charge against him will be before the jury during the trial of the accused. The Crown submits that it will be necessary for the Crown to explain to the jury why an independent American forensic firm was required to conduct the initial 2018 fingerprint analysis on the accused’s fingerprints. How exactly, asks the Crown, does Mr. Keaney deal with this at trial?

[38] The Crown contends that the court should anticipate that a defence DNA expert will, among other things, attack the DNA elimination of numerous other persons of interest who provided DNA samples during this investigation. Mr. Fetterly was eliminated as a suspect as a result of DNA analysis. How, asks the Crown, does Mr. Keaney attempt to undermine the DNA elimination of other persons of interest and ignore the DNA elimination of his former client?

[39] The Crown submits that defence counsel cannot fully and effectively challenge the Crown DNA and fingerprint evidence – the only viable defence strategy – without directly or indirectly also implicating Mr. Fetterly, which they are ethically prohibited from doing. The net result, according to the Crown, is ineffective representation of the accused because of Mr. Keaney’s conflict of interest.

[40] Finally, the Crown submits that the accused’s waiver of any potential conflict, as set out in his affidavit, is not a clear and unequivocal waiver and that Mr. Beckett did not in fact provide the accused with independent legal advice prior to the accused providing his waiver.

[41] The Crown submits that the accused’s affidavit fails to establish that he truly and fully comprehends the issues in play and the potential implications of Mr. Keaney’s continued representation of him. The Crown further submits that the accused repeatedly states in his affidavit that he is waiving the issue of a conflict “at this point in time.” The Crown submits that the court should infer from this language that the accused has not provided an absolute, unequivocal waiver of any future conflict of interest that may arise during the course of the trial.

[42] The Crown submits that Mr. Beckett expressly states in his affidavit that he “offered no opinion in giving the [accused] independent legal advice.” It is submitted that this effectively emasculates whatever advice Mr. Beckett may have given the accused. It was incumbent on Mr. Beckett, according to the Crown, to specifically advise the accused whether his retainer of Mr. Keaney in the specific circumstances of this case was or was not in his best interests. Failure to do so nullifies the independent legal advice given, according to the Crown.

The Position of the Defence

[43] Counsel for the accused submit that they have both been certified as specialists in criminal law and are “acutely” aware of their obligations to the accused, to Mr. Fetterly, to the court and to the legal profession. Counsel also note that an accused’s right to counsel of his choice is a fundamental right at common law which has been inferentially entrenched in the Canadian Charter of Rights and Freedoms (the “Charter”).

[44] Counsel accepts that the court must engage in some speculation for the purposes of deciding the issue on this Application. However, it is submitted that the foundational importance of an accused’s person’s right to counsel of their choice requires that any necessary speculation be realistic and grounded in practical common sense.

[45] Counsel submit that they are not abandoning a third-party suspect defence in regard to all potential third-party suspects. It is submitted that there are viable third-party suspects who have not been properly eliminated and who will be investigated.

[46] It is further submitted that all disclosure pertaining to Mr. Fetterly has been reviewed and that Mr. Fetterly is not, in their opinion, a viable third-party suspect. Counsel contend that no competent defence counsel would proffer Mr. Fetterly as a third-party suspect in the murder of Ms. Sweeney for the following reasons:

1. Mr. Fetterly bears no resemblance to the physical descriptions of the suspect provided by witnesses;

2. Mr. Fetterly has been eliminated as a suspect through current fingerprint analysis;

3. Mr. Fetterly was eliminated as a suspect through DNA analysis in 1998; and

4. Mr. Fetterly has a potential alibi for the time of the murder.

[47] Counsel readily acknowledge that the Crown’s expert DNA and fingerprint evidence implicating the accused will be vigorously challenged – by them or any other defence counsel representing the accused. However, counsel contends that they can and will do so without implicating Mr. Fetterly.

[48] Counsel submits that the Crown’s suggestion that an attack on the forensic evidence is an attack on the exoneration of Mr. Fetterly is incorrect. It is submitted that the forensic evidence led by the Crown will be attacked on the basis that an expert opinion is nonetheless still a subjective opinion that can be, and in fact in this case was, incorrect. Any doubt raised as to the strength of the Crown’s case against the accused necessarily implicates “someone else”, according to counsel. Counsel submits that it does not automatically follow that this implicates, or casts doubt on the exoneration of, Mr. Fetterly.

[49] Counsel submit that the accused’s waiver is an informed request by the accused to proceed with his counsel of choice. It is submitted that the accused’s affidavit read in conjunction with that of Mr. Beckett confirms that the accused understands the issues as well as a lay person can be expected to. The use of the phrase “at this point in time” in the accused’s affidavit is nothing more than a recognition that the accused’s waiver is based on the information that he currently possesses, according to counsel.

[50] It is submitted that Mr. Beckett’s acknowledgement that he “provided no opinion in giving [the accused] independent legal advice” goes to weight only, if a conflict is found.

The Applicable Legal Principles

[51] In R. v. Speid (1983), 1983 CanLII 1704 (ON CA), 43 O.R. (2d) 596, 3 D.L.R. (4th) 246 (ONCA), the Court heard an appeal of the trial judge’s removal of the accused’s counsel of record as a result of counsel’s prior representation of a different accused charged with the same crime.

[52] In the course of dismissing the appeal, the Court reiterated some general principles governing the right of an accused to retain counsel of his or her choice and counsel’s duty of loyalty to a former client:

[5] The right of an accused to retain counsel of his choice has long been recognized at common law as a fundamental right. It has been carried forth as a singular feature of the Legal Aid Plan in this province and has been inferentially entrenched in the Charter which guarantees everyone upon arrest or detention the right to retain and instruct counsel without delay. However, although it is a fundamental right and one to be zealously protected by the court, it is not an absolute right and is subject to reasonable limitations. It was hoped that these limitations would be well known to the bar, but if not honoured, the court has jurisdiction to remove a solicitor from the record and restrain him from acting.

[6] In assessing the merits of a 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.

[53] At paragraph 15, the Court held that it was “fundamental” to the former client’s rights that her solicitor respect her confidences and exhibit loyalty to her:

A client has every right to be confident that the solicitor retained will not subsequently take an adversarial position against the client with respect to the same subject matter that he was retained on. That fiduciary duty…is not terminated when the services rendered have been completed.

[54] The Court further noted that the current client’s waiver was “immaterial” and that “what is lacking is [the former client’s] waiver.”

[55] Speid was applied in R. v. Robillard, 1986 CanLII 4687 (ON CA), [1986] O.J. No. 261, 28 C.C.C. (3d) 22 (ONCA), in which the issue was the propriety of defence counsel acting in circumstances where she had also acted, in a related matter, for an accused whom the Crown intended to call as a witness in the present trial. Recognizing the potential conflict, counsel had obtained a waiver of confidentiality from the former client.

[56] In Robillard, the Court rejected the argument that the waiver of the former client terminated any duty of confidentiality arising from the solicitor-client relationship and therefore removed any potential conflict. At page 26, the Court adopted the following passage from Speid:

It is axiomatic that no client has a right to retain a counsel if that counsel, by accepting the brief, puts himself in a position of having a conflict of interest between his new client and a former one.

[57] The Court expanded on this statement at page 26:

This flows from the accused’s right to professional advice and services by one who has not placed himself or herself in a position where he or she cannot act professionally and ethically. The public respect for, and the societal interest in, the administration of justice would be reduced if it were otherwise. The right of an accused to retain and instruct counsel of his choice has long been recognized as a fundamental right at common law and is now inferentially entrenched in the Canadian Charter of Rights and Freedoms by ss. 7, 10(b) and 11(d). It is, however, not an absolute right and is subject to reasonable limitations.

[58] The Court in Robillard rejected the former client’s waiver due to the absence of independent legal advice. The Court further held that even if the former client had signed the waiver with independent legal advice it would not have been dispositive of the issue. At pages 27 and 28, the Court explained as follows:

We are all of the view that, even if the waiver of confidentiality had been obtained without being vitiated by the absence of independent legal advice, it would still not provide a complete answer to the Crown’s contention. The court is always required to consider the public interest and the need for public confidence in the administration of criminal justice. As pointed out by Mr. Justice Martin in R. v. Hargraves (1982), 1982 CanLII 3746 (ON CA), 69 C.C.C. (2d) 380 at p. 384, 29 C.R. (3d) 391, relying on a statement of Mr. Justice Kellock in R. v. Morabito (1949), 1949 CanLII 1 (SCC), 93 C.C.C. 251, [1949] 1 D.L.R. 609, [1949] S.C.R. 172, “…the public has an interest in the proper trial of accused persons”. It is in the interest of the public as well as the accused that the fundamental rules of a fair trial be observed.

Public confidence in the criminal justice process would surely be undermined by any appearance of impropriety in the conduct of the trial or any lack of fairness in the cross-examination of a witness. The process by which the waiver was obtained in this case, the possibility that the witness may attempt to withdraw the waiver during cross-examination and the very existence of the waiver can undermine the necessary public confidence in the administration of justice. This confidence rests on the fundamental fairness of the preliminary inquiry and criminal trial process. It requires not only the avoidance of professional impropriety but also the avoidance of any appearance of impropriety.

[59] In R. v. W. W. (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161, 100 C.C.C. (3d) 225 (ONCA), the Court dismissed the appeal of two co-accused who were jointly represented by the same lawyer at trial. The appellants had argued that their trial counsel had been in a conflict of interest such that he provided them with ineffective assistance at trial. The Court explained the importance of an accused person’s right to the effective assistance of counsel at page 15:

An accused who is represented by counsel at trial is entitled to receive the effective assistance of counsel. That entitlement has common law, statutory, and constitutional roots: R. v. Silvini, supra, at p. 549 O.R., p. 257 C.C.C., R. v. Garofoli, supra, at p. 152; Criminal Code, s. 650(3). If an accused does not receive the effective assistance of counsel at trial, the adversary system cannot function properly, the appearance of fairness suffers, and the reliability of the verdict is called into question. Ineffective legal assistance at trial may result in a miscarriage of justice necessitating the quashing of the conviction.

[60] In R. v. Brown, [1998] O.J. No. 6270, 1236 C.C.C. (3d) 187 (Ont. Ct. Gen. Div.), Trafford J. heard an application by the Crown to remove counsel of record for an accused due to a conflict of interest by virtue of that counsel’s prior representation of a co-accused whose charges had been stayed.

[61] In granting the order sought by the Crown, Trafford J. noted, at pages 18 and 19, the required balancing of the principles underlying the issue to be decided:

In ruling on such an application, it is important to be mindful of the principles underlying this rule of law—the need to maintain the high standards of the legal profession and the integrity of the justice system balanced against the right of a litigant not to be deprived of counsel of choice without good cause. All of the circumstances of the case must be considered including the existence, if any, of a waiver prepared with the assistance of independent counsel. It is, of course, revocable…The weight to be assigned to it is a task for the trial judge.

[62] In his conclusion, at page 29, Trafford J., balanced the risks of counsel’s successive retainers of the accused and former accused against the rights of the accused to counsel of his choice and to the effective assistance of counsel. The court held that if an actual conflict arose at trial, a mistrial would likely be required to adequately address the accused’s right to the effective assistance of counsel, a consequence which would undermine the public confidence in the administration of justice given the circumstances. Trafford summarized the competing interests in the application before him at page 29:

The decision of a trial judge to remove counsel from the record is a prophylactic measure intended to preserve the high standards of the legal profession, the integrity of the justice system and the right of an accused to the effective assistance of counsel. It is a power to be exercised in a way that gives proper regard to the right of an accused to counsel of choice.

[63] In R. v. McCallen, 1999 CanLII 3685 (ON CA), [1999] O.J. No. 202, 131 C.C.C. (3d) 518 (Ont.C.A.), at para. 32, the Court described it as “well established” that the right to counsel set out in s.10(b) of the Charter includes not only the right to retain counsel but the right to retain counsel of the accused’s choice and the right to be represented by that counsel throughout the proceedings.

[64] Following Spied, the Court reiterated that an accused can only be denied the right to counsel of choice for “compelling reasons”. At paragraph 69, the Court explained as follows:

It seems to me that the requirement for compelling reasons should be the same whether a court is considering an order to remove a counsel who has been retained or an order refusing an accused the right to retain a particular counsel to act on his or her behalf. Indeed, in normal circumstances the court plays no role in approving or permitting a counsel to act on behalf of an accused. It happens as a matter of course. It is only in exceptional circumstances where there are concerns about matters such as a conflict of interest or a lack of competence, that may imperil the fairness of a trial or that might undermine the public interest in the administration of justice, that a court will intervene to determine whether a particular counsel may or may not act for an accused.

[65] In R. v. Con-Drain Company (1983) Limited, 2008 ONCJ 114, 172 C.R.R. (2d) 299, at para. 37, Armstrong J. noted that where a conflict of interest is alleged, a trial judge must be concerned with both actual conflicts of interest and potential conflicts that may develop as the trial unfolds. The required judicial speculation as to how a trial may unfold is difficult because the trial judge will not be privy to all information bearing on those issues.

[66] The validity of an accused’s waiver of a potential conflict of interest was discussed in Con-Drain at para. 54:

In Korponay v. A.G. Canada, 1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41 at 49, 65 C.C.C. (2d) 65 at 74, the Supreme Court of Canada held that the validity of any waiver “is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.” In R. v. Silvini, supra, at p.7-8, the Court of Appeal referred to the high standard set in Korponay and stated that that it must be demonstrated that the party had “voluntarily, knowingly and intelligently…waived his right to independent, loyal counsel.”

[67] The Court of Appeal for Ontario commented on a lawyer’s duty of loyalty to a former client in Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2010 ONCA 788, [2010] O.J. No. 4996, at paras. 22-24:

[22] Counsel submits that lawyers owe a duty of loyalty to their former clients. That duty is not premised on or confined to confidentiality obligations, but flows from a broader concept of fidelity that is essential to the proper functioning of the client/solicitor relationship. Clients must be able to speak frankly and without fear of exposure to their lawyers about their legal problems. To do so, clients must be confident that their lawyers will not become their adversaries’ lawyers at some subsequent point in the course of the same dispute. The prospect of one’s lawyer switching sides must undermine the confidence essential to the operation of the client/solicitor relationship. There is also concern that if lawyers act against former clients in the same manner, the public confidence in the integrity of the legal profession will suffer. That confidence is crucial to the effective and just administration of justice.

[23] The Rules of Professional Conduct of the Law Society of Upper Canada (“Rules”) offer cogent support for the duty of loyalty relied on by the respondent. Rule 2.04(4)(a) provides:

(4) A lawyer who has acted for a client in a matter shall not thereafter act against the client or against persons who were involved in or associated with the client in that matter

(a) in the same matter.

[24] No doubt, the Rules are not binding on the courts: MacDonald Estate at p. 1245. The Rules are, however, a clear expression of the profession’s concept of the duties owed to former clients. That expression must be given considerable weight by the courts.

[68] In Consulate at para. 27, the Court added the following:

Speid and similar cases have been aptly described by P. Perell (now Perell J.) in Conflicts of Interest in the Legal Profession (Toronto: Butterworths, 1995) at pp. 38-42 as the “turncoat cases”. In these cases, disqualification is not based on confidentiality concerns but rather “the need to foster and maintain public confidence in the integrity of the legal profession and in the administration of justice.”

[69] The case of R. v. Baharloo, 2017 ONCA 362, 348 C.C.C. (3d) 64 bears some similarity to the case at bar. In Baharloo, the appellant appealed his conviction for possession of crack cocaine based on the ineffective assistance of his trial counsel. The appellant argued that his trial counsel had been in a conflict of interest because she represented both the appellant and Banda, a third-party suspect and current client, and she had failed to advance a third-party suspect defence pointing to Banda.

[70] The Crown respondent argued that no actual conflict arose from counsel’s concurrent representation of the accused and Banda because no credible evidence existed upon which the appellant could advance a third-party suspect defence implicating Banda. At paragraph 38, the Court outlined the requirements for a third-party suspect defence pursuant to R. v. Tomlinson, 2014 ONCA 158, [2014] O.J. No. 930, at paras. 70-78:

• Where a third-party suspect defence is advanced at trial, the question for the trier of fact is whether, on the evidence as a whole, the possible involvement of the third party raises a reasonable doubt about the guilt of a person charged;

• The evidence marshalled in support of a third-party suspect defence must be relevant, material and admissible. To satisfy the relevance requirement, there must be a sufficient connection between the third party and the crime, otherwise the third-party evidence is neither relevant nor material;

• The term “opportunity” or “evidence of opportunity” describes the nature of the connection between the third party and the conduct charged essential to providing an air of reality to the third-party suspect defence; and,

• Relevant disposition or propensity evidence about the third party may include the person’s prior convictions that demonstrate a relevant disposition or propensity. However, since the fact that a witness is charged with an offence generally has no bearing on the witness’ credibility, it would be illogical to conclude that the fact of a charge can be of service in establishing a third party’s disposition when that disposition is offered as circumstantial evidence of conduct.

[71] The Court rejected the submission that a third-party suspect defence lacked any air of reality. The Court held, at para. 47 and citing W.W., that considering all the circumstances of the case, a third-party suspect defence pointing to Banda, designed to raise a reasonable doubt on behalf of the appellant, was an “available option, a “realistic option”, or a “realistically available” defence, at least requiring consideration and investigation by defence counsel.

[72] The Court allowed the appeal, finding that an actual conflict of interest existed as a result of counsel’s concurrent representation of the appellant and Banda which had resulted in counsel failing to pursue a third-party suspect defence that, in the circumstances, the Court saw as a realistically available defence. The Court held that the appellant had established a lack of effective assistance by trial counsel: Baharloo, para. 54.

Discussion

[73] Given the unusual circumstances of this case and the fundamental issues raised, it was entirely appropriate for the Crown to have brought this application at an early stage in the prosecution. This court’s balancing of the accused’s Charter right to counsel of his choice with the public respect for, and the societal interest in, the administration of justice together with counsels’ fiduciary duty to their former client will enhance, to the greatest extent possible, the reliability of the verdict in the tragic death of Ms. Sweeney 22 years ago.

[74] For the following reasons, I am not persuaded that there are compelling reasons to disqualify Mr. Keaney and Mr. Venturi as defence counsel and thereby deprive the accused his counsel of choice.

[75] In coming to this decision, I am guided, in part, by the submission of defence counsel that the foundational importance of an accused person’s right to counsel of their choice requires that any speculation I engage in, as to how the trial may unfold, be realistic and grounded in practical, common sense.

[76] First, I reject the submission that defence counsel will be unable to effectively challenge the Crown’s fingerprint evidence against the accused without implicating Mr. Fetterly.

[77] The circumstantial nature of the Crown’s case and the apparent strength of the DNA and fingerprint evidence requires defence counsel to challenge this evidence as vigorously as possible. In doing so, defence counsel will attempt to undermine the reliability of the Crown’s fingerprint and DNA expert evidence and will retain fingerprint and DNA experts to testify for the accused.

[78] Two fingerprint analyses were conducted in 2019 and both concluded that the fingerprints of the accused matched the fingerprints left in the cash drawer in the video store in 1998.

[79] I accept the Crown’s submission that it will be required to explain to the jury why an American forensic firm was retained to conduct the first fingerprint analysis of the accused’s fingerprints in 2019, corroborated by a second OPP analysis three weeks later. In so doing, the jury will hear that Mr. Fetterly was arrested and charged with this murder in 1998 based only on fingerprint analysis and that the charge was withdrawn two days later because a second fingerprint analysis concluded the first was incorrect.

[80] These facts will allow defence counsel to suggest to both the Crown’s fingerprint expert and the jury that expert fingerprint analysis is not infallible, that an expert opinion is nonetheless still a subjective opinion and that mistakes can and do occur – the experts got it wrong in this very case in 1998, maybe they got it wrong again?

[81] Having perhaps planted a seed of doubt in the jurors’ minds as a result of the unfortunate events of 1998 involving Mr. Fetterly, it is anticipated that defence counsel would then proceed to directly challenge the reliability of the two separate 2019 fingerprint analyses implicating the accused. Counsel would challenge the evidence of the Crown’s experts and lead their own expert evidence on this issue.

[82] I am unable to reasonably speculate as to what the focus of these challenges would be. However, I fail to see how defence counsel is required to implicate Mr. Fetterly in doing so. The suggestion that defence counsel is ethically required to take the next step and suggest that, in fact, “maybe the fingerprint experts got it right in 1998” is, in my opinion, without merit.

[83] I also reject the Crown’s submission that defence counsel cannot effectively challenge the DNA evidence against the accused the accused without implicating Mr. Fetterly.

[84] A summary of my interpretation of the extant DNA evidence in this case is as follows:

1. The accused’s mother is a DNA match as the biological mother of the male DNA found under Ms. Sweeney’s fingernails;

2. The accused’s brother is a DNA match to the DNA from the nylon jacket;

3. The accused’s father is a DNA match to the DNA found on the cotton gloves;

4. The accused is a DNA match to the DNA found under the right-hand fingernails of Ms. Sweeney; and

5. A 1998 DNA analysis concluded that Mr. Fetterly’s DNA did not match the DNA found under Ms. Sweeney’s fingernails.

[85] The Crown submits that defence counsel must inevitably question the 1998 DNA elimination of Mr. Fetterly in order to effectively challenge the DNA evidence implicating the accused, thereby indirectly pointing the finger at their former client. I do not agree.

[86] Obviously, defence counsel will directly challenge the reliability of the Crown’s DNA evidence against the accused, possibly based on the amount, age, preservation or lack thereof, of the historical samples of the DNA from underneath Ms. Sweeney’s fingernails. I do not see how, in doing so, defence counsel would or could, also be required to challenge the 1998 DNA elimination of Mr. Fetterly.

[87] Over the last 20 years, approximately 2,000 persons of interest have been investigated in this case. Approximately 1,200 have been eliminated through DNA analysis and approximately 800 have not had their DNA analyzed. It is not realistic to assume that the Crown would introduce, and/or that the defence would be required to challenge, the DNA elimination of 1,200 individuals, including Mr. Fetterly.

[88] In my opinion, defence counsel can effectively challenge the Crown’s DNA expert evidence and call expert DNA evidence with a view to raising a reasonable doubt as to the reliability of the Crown’s DNA evidence against the accused, without implicating Mr. Fetterly. I fail to see how attempting to challenge the 1998 DNA exclusion of Mr. Fetterly would have any probative value.

[89] I further do not accept the Crown’s suggestion that defence counsel would be failing to provide the accused with full answer and defence if they do not at least attempt to advance Mr. Fetterly as a third-party suspect. In coming to this conclusion, I have taken into consideration the caveat that an accused cannot be deprived of his right to counsel of his choice unless there are compelling reasons for doing so: Speid at para. 6.

[90] I reject the Crown’s suggestion that the circumstances of this case bring it within the category of cases referred to as “turncoat cases”, where public confidence in the integrity of the legal profession and the administration of justice is brought into question. Defence counsel, both certified specialists in criminal law, submit that this is not a case where counsel will be required to adopt an adversarial position against their former client.

[91] The issue is whether in failing to do so they will compromise the defence of their current client. In my opinion, the answer to that question turns on whether a third-party suspect defence, implicating Mr. Fetterly and thereby raising a doubt as to the guilt of the accused, is a “realistically available” defence, at the very least requiring consideration and investigation by defence counsel. Having considered all of the evidence, I am not persuaded that it is.

[92] Where a third-party suspect defence is advanced, the question for the trier of fact is whether, on the evidence as a whole, the possible involvement of the third party raises a reasonable doubt as to the guilt of a person charged: Tomlinson at para. 70, (emphasis added).

[93] In my opinion, on all of the evidence, a third-party suspect defence pointing the finger at Mr. Fetterly would not raise a reasonable doubt as to the guilt of the accused for the following reasons:

1. According to one of the investigating officers, Mr. Fetterly has a potential alibi for the date of the murder of Ms. Sweeney;

2. Mr. Fetterly’s fingerprints did not match the fingerprints in the cash drawer in the video store when re-examined in 1998, resulting in the charge against him being withdrawn;

3. Current fingerprint analysis has eliminated Mr. Fetterly as a suspect, according to my understanding of the Crown’s position on this application;

4. Mr. Fetterly bears no resemblance to the physical description of the suspect provided by eyewitnesses in 1998;

5. Mr. Fetterly bears no resemblance to the composite sketch created by Parabon in 2017; and,

6. Mr. Fetterly was eliminated as a suspect through DNA analysis in 1998.

[94] Defence counsel have stated that they have reviewed all disclosure pertaining to Mr. Fetterly and that, in their opinion, no competent defence counsel would advance Mr. Fetterly as a third-party suspect in the murder of Ms. Sweeney. I agree.

[95] Defence counsel have also indicated that they feel there are other viable third-party suspects who have not been properly eliminated and whom they will continue to investigate in the course of defending the accused.

[96] For all of the foregoing reasons, I am of the opinion that defence counsel are not in a conflict of interest in their continued representation of the accused by reason of Mr. Keaney’s past representation of Mr. Fetterly.

[97] However, in the event that I am incorrect in that conclusion, I will address the validity of the accused’s waiver of any potential conflict that exists.

[98] I am perplexed as to why Mr. Beckett would undertake to provide the accused with independent legal advice on the issues raised in this application and then depose that he “offered no opinion in giving [that] independent legal advice.”

[99] I appreciate that Mr. Beckett met with the accused for 80 minutes during which time he reviewed all the materials with the accused and satisfied himself that the accused, whom Mr. Beckett described as “intelligent and articulate”, understood the issues and the respective positions of Crown and defence counsel. However, surely it was incumbent on Mr. Beckett to provide the accused with his independent opinion as to the propriety of his counsels’ position in regard to the issues raised in the Crown’s application for disqualification. In my opinion, his failure to do so significantly diminishes the weight to be attached to the accused’s waiver.

[100] Having said that, my reading of the accused’s affidavit/waiver, indicates that with the assistance of independent counsel, the accused understands the primary issue, namely the inability of his current counsel to pursue a third-party suspect defence involving Mr. Fetterly. He further deposes that he has not instructed his counsel to advance that defence. I am satisfied that the accused has voluntarily, knowingly and intelligently waived any potential conflict on the part of his current counsel after receiving independent legal assistance.

[101] The Crown’s application is dismissed.

The Hon. Mr. Justice J.S. Fregeau

Released: February 10, 2020

COURT FILE NO.: CR-1087-19

DATE: 2020-02-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

ROBERT STEVEN WRIGHT

REASONS ON APPLICATION

Fregeau J.

Released: February 10, 2020

/sf