COURT FILE NO.: 19-1963

DATE: 20210929

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Vivian

BEFORE: Aitken J.

COUNSEL: D. Wilson, Counsel for the Crown

T. Botten, Counsel for the Accused, Mr. Vivian

Brian Vivian in person

HEARD: September 16 and 21, 2021

ENDORSEMENT RE APPLICATION OF DEFENCE COUNSEL TO BE REMOVED AS SOLICITOR OF RECORD FOR BRIAN VIVIAN

Nature of Proceedings

[1] On September 16, 2021, Tyler Botten brought an application to be removed as solicitor of record for Brian Vivian. Both Mr. Vivian and the Crown opposed this application.

[2] Mr. Vivian is facing 11 serious charges, including firearms offences, and could be facing a mandatory minimum sentence of five years. Pre-trial motions were scheduled for September 23-24, 2021 with a two-week judge and jury trial scheduled to commence on November 15, 2021.

[3] On September 16, 2021, I advised Mr. Botten that I would not remove him as solicitor of record prior to the pre-trial motions but that I would give further consideration to his request regarding the trial after hearing more submissions on September 21, 2021. After hearing additional submissions from Mr. Botten, Mr. Vivian, and Crown counsel on September 21, 2021, I denied Mr. Botten’s application to be removed as solicitor of record at trial for Mr. Vivian. These are my reasons for doing so.

Reason for Application

[4] Mr. Botten is an experienced criminal defence lawyer. On August 30, 2021, he was offered a full-time one-year contract position as Review Counsel with the University of Ottawa’s Community Legal Clinic – a position that he had wanted for a while. Mr. Botten immediately accepted the offer. His new position commenced on September 3, 2021. Since then, he has been in the process of divesting himself of his private clients. Mr. Botten advised that the time requirements and demands of the new position are such that he is not able to continue to operate his practice. According to Mr. Botten, his new duties would prevent him from allocating adequate time to prepare for Mr. Vivian’s trial and to take a two-week leave of absence in November to conduct the trial. On September 16, 2021, I asked Mr. Botten to ask his employers if he could take a leave of absence to complete the trial. Mr. Botten advised on September 21, 2021 that his employers would not agree to a leave of absence.

Mr. Vivian’s Response

[5] On September 1, 2021, Mr. Botten advised Mr. Vivian that he had accepted a contract with the University of Ottawa and wished to be removed as his solicitor of record. Mr. Vivian was extremely distressed by this news but took immediate steps to seek new counsel. Between then and September 21, 2021, Mr. Vivian spoke to numerous criminal defence lawyers, asking if they would be prepared to take on his case and if they could be available to handle the trial starting on November 15, 2021. As one would expect, Mr. Vivian had no luck whatsoever. Most experienced criminal counsel whom he consulted were unavailable for a trial until later in 2022. Many would not discuss matters with him until he could assure them of a legal aid certificate. It must be remembered that, due to the discontinuation of jury trials during the peak of the pandemic, there is now a backlog of jury trials to be handled over the next year. Many criminal lawyers have back-to-back trials throughout 2022.

[6] On September 21, 2021, Mr. Vivian effectively explained how, as a result of Mr. Botten’s application, he felt between a rock and a hard place his stress and anxiety levels have skyrocketed.

[7] Mr. Vivian was arrested on February 6, 2019. He was detained from that date until April 19, 2021 when I granted him interim release. Since that time, Mr. Vivian has been residing at Liberty House under the supervision of its director and with his mother being an additional surety. He has pursued all programming that was recommended. He has been working. He has abstained from consuming alcohol and drugs. He has reconnected with his children and is seeing them regularly. He has a strong support network in the community. In short, from all indications, he is performing very well in the community.

[8] Mr. Vivian was counting on his trial occurring in November of this year so that he could put the unfortunate events of February 6, 2019 behind him and could move forward to the next chapter of his life – hopefully one that continues him on the path he is now on. Having the trial postponed for a year or more (which is the current estimate) creates huge psychological stress – something that is very counterproductive to Mr. Vivian maintaining his sobriety and positivity about the future.

[9] As Mr. Vivian indicated during the hearing, he already had to change lawyers once before, with all the additional time and energy that entails in terms of ensuring that full disclosure was transferred to new counsel and new counsel was fully informed of the circumstances and provided with full instructions. It is very difficult for Mr. Vivian to contemplate doing that once again – even if he were able to find new counsel. As well, according to Mr. Vivian, apparently Mr. Wilson is the fourth Crown counsel assigned to the file.

[10] There is the added complication that Mr. Botten was retained on a legal aid certificate. There was no concrete evidence before me as to whether Legal Aid would quickly and easily transfer the legal aid certificate to a new lawyer or whether Mr. Vivian would have to reapply for a certificate now that his circumstances have changed. When he first received the legal aid certificate, he was incarcerated. He is now living in the community and working on a part-time basis as a condition of his interim release.

Jordan Considerations

[11] On September 16, 2021, Trial Coordination advised that we would not be able to get a new trial date for a two-week jury trial until sometime in November 2022. That means that, without considering sentencing, the trial would likely only be completed – at the earliest – by approximately December 1, 2022. That would mean that 45-46 months would have elapsed between the date of Mr. Vivian’s arrest and the completion of the trial. That would be well beyond the 30 months mandated by the Supreme Court of Canada. While some of that time might be considered exceptional circumstances due to COVID and due to Mr. Botten withdrawing representation, on the limited information before me, it seems unlikely that all 15 to 16 months would be put into that category.

Legal Framework

[12] The Law Society of Ontario Rules of Professional Conduct offer the following guidance:

3.7-1 A lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client.

[13] There is no question that Mr. Botten has good cause for wanting to withdraw from representing Mr. Vivian – he wants to pursue other career possibilities. The real issue is whether the notice given to Mr. Vivian was reasonable. In my view, in the circumstances of this case, it was not. The Commentary under r. 3.7-1 supports this conclusion:

… No hard and fast rules can be laid down about what will constitute reasonable notice before withdrawal and how quickly a lawyer may cease acting after notification will depend on all relevant circumstances … the governing principle is that the lawyer should protect the client’s interests to the best of the lawyer’s ability and should not desert the client at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril.

[14] Rule 3.7-6 provides:

3.7-6 In circumstances where a lawyer is justified in withdrawing from a criminal case for reasons other than non-payment of fees, and there is not sufficient time between a notice to the client of the lawyer’s intention to withdraw and the date set for trial to enable the client to obtain another licensee and to enable such licensee to prepare adequately for trial:

(a) the lawyer should, unless instructed otherwise by the client, attempt to have the trial date adjourned;

(b) the lawyer may withdraw from the case only with the permission of the court before which the case is to be tried.

[15] Some guidance is afforded by the Supreme Court of Canada in Cunningham v. Lilles, 2010 SCC 10, at paras. 46-51, as to the factors to be considered when criminal counsel applies for permission to withdraw representation for a client:

The court’s exercise of discretion to decide counsel’s application for withdrawal should be guided by the following principles.

If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.

Assuming that timing is an issue, the court is entitled to enquire further. Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged. …

If withdrawal is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel’s request. The court’s order refusing counsel’s request to withdraw may be enforced by the court’s contempt power …. In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors:

Whether it is feasible for the accused to represent himself or herself;

Other means of obtaining representation;

Impact on the accused from delay in proceedings, particularly if the accused is in custody;

Conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;

Impact on the Crown and any co-accused;

Impact on complainants, witnesses and jurors;

Fairness to defence counsel, including consideration of the expected length and complexity of the proceedings;

The history of the proceedings, e.g. if the accused has changed lawyers repeatedly.

As these factors are all independent of the solicitor-client relationship, there is no risk of violating solicitor-client privilege when engaging in this analysis. On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice. If the answer is yes, withdrawal may be refused.

Harm to the administration of justice is not simply administrative inconvenience as the interveners suggest. Harm to the administration of justice recognizes that there are other persons affected by ongoing and prolonged criminal proceedings: complainants, witnesses, jurors and society at large.

[16] Although Cunningham dealt with the situation of non-payment of fees, the principles enunciated there are broader in their application.

[17] Regarding the case at hand, I make the following findings:

• It is not feasible for Mr. Vivian to represent himself on these serious charges.

• Despite his best efforts, Mr. Vivian is unable to obtain alternate experienced criminal counsel to conduct the trial commencing November 15, 2021.

• Adjourning the trial will likely result in the trial not occurring before November 2022 – at the earliest – assuming Mr. Vivian would be able to find appropriate counsel who would be free at that time. That is not a given in the current climate. It is foreseeable that this trial could be postponed to 2023.

• Mr. Botten notified Mr. Vivian immediately about his contract with the University of Ottawa and his desire to be removed as solicitor of record. Mr. Botten also brought his application for removal in a timely fashion. The problem is that it was only a matter of days between the hearing of the application and the pre-trial motions scheduled in this case, and the application was heard less than two months prior to the scheduled jury trial. Mr. Botten knew that obtaining alternate counsel to conduct the jury trial would be highly unlikely – verging on the impossible.

• There is no co-accused in this matter. As for the impact on the Crown, Crown counsel has prepared for the pre-trial motions and is ready to proceed to trial. If matters were postponed, there likely would be some requirement for re-doing the preparation already done as well as creating free time to accommodate newly scheduled court appearances. That being said, the impact on the Crown would be minimal.

• There are no complainants as such in this case. This is not a case where a delayed trial will have the same level of impact on the ability of a witness to recall pertinent events as would be the situation in cases with multiple lay witnesses. Most of the witnesses in this case will be police officers. They will have notes to refresh their memories and forensic officers will have reports or exhibits.

• The jury trial is scheduled to take two weeks. Although the charges are serious, the factual situation is not complex. The legal issues are more challenging. I accept that, if he were to represent Mr. Vivian at trial, Mr. Botten would have to take approximately three weeks away from his duties at the University.

• Minimal information regarding the history of proceedings was placed before me to allow me to focus to any extent on this factor; however, there was no evidence that Mr. Vivian has changed lawyers repeatedly or has acted in a way to delay the proceedings.

[18] Other important factors are that:

• A delay of more than a year to have the trial heard would likely result in a successful Jordan application – a result that would bring the administration of justice into disrepute;

• A delay of this length is extremely unfair to Mr. Vivian and would likely negatively impact on his mental health, his road to recovery, and his ability to look positively to the future. It is not only in Mr. Vivian’s best interests but also in society’s best interests that any progress Mr. Vivian is making is not undermined by the inability of the criminal justice system to deal with his case in a timely fashion; and

• There is no guarantee that Mr. Vivian’s legal aid certificate would be transferred to another lawyer quickly or easily without Mr. Vivian having to start the application process afresh. The possibility that Mr. Vivian’s ability to get legal aid could be in jeopardy is very concerning.

[19] It was after a consideration of all these factors that I concluded that allowing Mr. Botten to withdraw would cause serious harm to the administration of justice. I did not arrive at this decision lightly. I would have much preferred to thank Mr. Botten for his service to Mr. Vivian and to the court to date and to wish him well on his new career path; however, as I indicated to him, after very much struggling with this decision, I had to conclude that Mr. Vivian’s right to a timely trial and to be treated fairly within the criminal justice system, trumped Mr. Botten’s desire to withdraw at this time.

Aitken J.

Date: September 29, 2021