COURT FILE NO.: 20-19869
DATE: 2022/02/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
R. G.
Accused
Meaghan Cunningham for the Crown
Robert Carew for R.G.
HEARD: February 7, 2022
REASONS FOR DECISION ON APPLICATION FOR REMOVAL OF COUNSEL OF RECORD
ANNE London-weinstein j.
[1] R.G. is charged with 19 offences relating to the complainant. It is alleged that he exploited and trafficked her in the sex trade when she was 17 and 18 years old and that he intimidated and harassed her after the initial charges were laid.
[2] R.G. is represented by Mr. Carew. The Crown seeks to have him removed as counsel of record due to a conflict of interest. For reasons that follow, I have granted the Crown’s application.
Background:
[3] A brief review of the procedural history of this matter is necessary. Counsel brought an application before this court to access third party records relating to the complainant’s impaired driving charge. On December 8, 2021 the court produced portions of the vetted impaired driving charge file to the defence. The court was not aware that Vanessa Carew, who is a lawyer working with her father, Robert Carew, provided legal advice to the complainant upon her arrest for the impaired driving charge.
[4] R.G. was scheduled to commence a robbery trial in Kingston on January 31, 2022. The complainant is a critical Crown witness in that case. On January 29, Mr. Carew advised the Crown in Kingston, Thomas McCann, that he intended to cross-examine the complainant in that case on the impaired driving records he obtained through the third-party records application in Ottawa.
[5] On December 8, 2021, when this court released the vetted records to counsel, there were a number of conditions which I ordered in relation to the release of the vetted records. One of the conditions I ordered in releasing the records, was that the records were not to be used in any other court proceeding without permission of this court. Mr. Carew explained that he misapprehended that order through inadvertence and apologized and I fully accepted his explanation for the attempt to use the records in the Kingston matter without seeking leave of this court. That aspect of the matter is now settled.
[6] Mr. McCann accessed the unvetted impaired driving records relating to the complainant. He learned that the complainant requested and spoke to Vanessa Carew upon her arrest for impaired driving. It was at this point that Mr. Carew learned that Vanessa Carew had provided legal advice to the complainant upon her arrest for impaired driving. The Crown in Ottawa, Ms. Cunningham, did not access the unvetted record material, which is completely appropriate in the circumstances.
[7] The Crown filed materials in support of an application to have Mr. Carew disqualified for conflict of interest on the Kingston matter on January 31, 2022. Mr. Carew filed a response on February 1, 2022. Submissions were made before Justice Letourneau of the Ontario Court of Justice on February 2, 2022. Justice Letourneau is anticipated to rule on the Crown’s application on March 4, 2022. The Crown now seeks to have Mr. Carew removed as counsel of record on the matter before this court.
Is there a conflict of interest?
[8] A conflict of interest occurs whenever there is a substantial risk that a lawyer’s loyalty to, or representation of, a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duty to another client, a former client, or a third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer. Law Society of Ontario, Rules of Professional Conduct, section 1.1.
Was there a solicitor-client relationship?
[9] Mr. Carew argues that not every call between a lawyer and an individual calling from the police station gives rise to a solicitor-client relationship. In this case, the complainant was in the police station under arrest for impaired driving. She was provided with her rights to counsel. She called Ms. Carew, a criminal defence lawyer. The most persuasive inference on these facts is that the complainant was seeking legal advice from Ms. Carew. As a result, I have found that Ms. Carew and the complainant had a solicitor-client relationship and that Ms. Carew owes a duty of loyalty to her client, the complainant in the matter before me. There is a strong inference that lawyers who work together share confidences. This inference can be overcome. However, even if the court found this acceptable, there is also the issue of public perception to be dealt with. The public is not likely satisfied without some additional guarantees that confidential information will under no circumstances be used. MacDonald Estate v. Martin 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, at p. 1263.
[10] A solicitor-client relationship arises as soon as the potential client has his first dealing with a lawyer’s office in order to obtain legal advice. Descoteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 SCR 860 at p. 876.
[11] The relationship between a recently-arrested accused and duty counsel is a solicitor-client relationship. R. v. Ahmad, 2015 ONCJ 620, 345 C.R.R. (2d) 280, at para 25.
[12] The complainant does not consent to Mr. Carew’s continued representation of R.G. nor does she waive solicitor-client privilege.
[13] Having found that a solicitor-client relationship existed, and that Ms. Carew owed her client a duty of confidentiality, the next issue to be determined is whether Ms. Carew received confidential information attributable to a solicitor-client relationship relevant to the matter at hand and whether that information was shared with Mr. Carew.
[14] I also must determine whether there is a risk that receipt of that confidential information will be used to prejudice the client. MacDonald Estate, at p. 1260.
[15] If there is any realistic risk of a conflict of interest, counsel must not continue to act. R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 at p. 175 (C.A.).
[16] The problem with addressing the first question is that in order to resolve the issue, the court would be required to review the information for which protection is sought. This would have the effect of defeating the whole purpose of the application. MacDonald Estate, at p. 1260.
[17] Once it is shown that a previous relationship, sufficiently related to the retainer from which it is sought to remove the solicitor has been established, the court must infer that confidential, potentially relevant information was imparted. This is a difficult burden to discharge. Not only must the court’s degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication. MacDonald Estate, at p. 1260.
[18] In this case, there is a direct and significant connection between the impaired driving charge and the matter before the court. Mr. Carew sought the impaired driving file as the complainant stated she had been framed by the accused’s family. Ms. Carew provided legal advice to the complainant on the very same impaired driving charge. Mr. Carew would now seek to use the impaired driving file to cross-examine the complainant and undermine her credibility on the matter for which Ms. Carew provided legal advice. Mr. Carew argues that no actual confidential information was exchanged between himself and Ms. Carew and I accept that submission. However, that does not end the matter.
[19] 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 in cases where the prior information 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 new prosecution witness.” R. v. Brissett (2005), 2005 CanLII 2716 (ON SC), 74 O.R. (3d) 248(S.C.), at para. 41..
[20] The appearance of the opportunity to use confidential information obtained through Ms. Carew’s acting for the complainant is present in this case. The fact that Ms. Carew may not have actually shared confidential information about the client with Mr. Carew is not the point. Appearances matter. Trials must not only be fair, but the appearance of fairness must also be maintained to preserve public confidence in the administration of justice. R. v. Tsega, 2019 ONSC 7595, at para. 1.
[21] I recognize that the right to counsel of choice enhances the public trust in the continued fair operation of the criminal justice system.
[22] Over two decades ago, the right to counsel of choice was reaffirmed as a fundamental component of the criminal justice system which preceded the Canadian Charter of Rights and Freedoms. As a result of its critical importance to the functioning of the criminal justice system, the right to counsel of choice was recognized as a right worthy of constitutional protection. R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56, at p. 67. The right to counsel of choice enhances public trust in the continued fair operation of the criminal justice system.
[14] In McCallen, the court noted:
“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.” (at p. 67-68)
[23] The fundamental right to counsel of choice, which must be zealously protected by the court, is subject to reasonable limitations. R. v. Speid (1983), 1983 CanLII 1704 (ON CA), 43 O.R. (2d) 596, at p. 598.
[24] In determining whether Mr. Carew should be removed, I balanced R.G.’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 p. 598 .
[25] In my view, public perception and the interest in the perceived fairness of the proceedings require that Mr. Carew be removed. In making this decision, I have considered that the right to counsel of choice is an important right and one that also enhances public confidence in the administration of justice. However, in the circumstances of this case, despite the importance of the right to counsel of choice, Mr. Carew is in a clear and unequivocal position of conflict.
[26] Public perception of fairness in these proceedings would be undermined if Mr. Carew were to be permitted to cross-examine a former client of his firm on the very subject matter for which Ms. Carew provided legal advice.
Anne London-Weinstein J.
Released: February 9, 2022
COURT FILE NO.: 20-19869
DATE: 2022/02/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
– and –
R. G. Accused
REASONS FOR DECISION ON APPLICATION FOR REMOVAL OF COUNSEL OF RECORD
Anne London-Weinstein J.
Released: February 9, 2022