Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: R v. Nippak,
BEFORE: S.F. Dunphy J.
COUNSEL: D. Lumba and C. Walsh, for the Public Prosecution Service of Canada P. Lindsay and N Da Silva, for the Defendant Mr. Nippak R. Macdonald, for the co-accused Mr. Althorpe
HEARD at Toronto: August 28, 2024
REASONS FOR DECISION: Application to remove counsel
Reasons for Decision
1Mr. Althorpe and Mr. Nippak are jointly charged with participating in the activities of a terrorist group - the Atomwaffen Division - for the purpose of enhancing its ability to carry out a terrorist activity contrary to s. 83.18(1) of the Criminal Code. Their participation was alleged to have included the filming or production of videos and other images in various locations. Mr. Althorpe alone faces seven further terrorism or hate-speech related charges listed on the same indictment. Mr. Nippak is not named in those other charges.
2The Crown brings this application asking this court to remove Mr. Lindsay as counsel of record for Mr. Nippak for a conflict of interest.
3I advised the parties at the close of the oral hearing yesterday that I was granting the Crown’s application with written reasons to follow and ordering the removal of Mr. Lindsay as counsel of record for Mr. Nippak. These are my written reasons.
Background facts
4The charges were initially laid on December 6, 2023 however the investigation leading to these charges had been on-going for more than a year and involved the use of undercover sources, intercepted communications and other investigative techniques.
5While a total of eight charges have been laid against Mr. Althorpe contrasted to one laid against Mr. Nippak (jointly with Mr. Althorpe), it cannot be said that the factual or legal issues that Mr. Nippak and Mr. Althorpe face are narrow and constrained. The allegations in the first count are broad in scope, time and place.
6Mr. Lindsay is Mr. Nippak’s counsel of record in this case and has been since Mr. Nippak’s first appearance following his arrest. Mr. Lindsay has also had a degree of professional involvement with parties connected to the investigation in various capacities for more than a year:
a. On two occasions in June, 2023, intercepted communications indicated that Mr. Nippak was consulting Mr. Lindsay about being removed from the “No-Fly” list or concerning the immigration status of his girlfriend;
b. On June 30, 2023, the investigative team executed search warrants on the residence of Mr. Althorpe, Mr. Nippak and others. That day some of the persons whose residences were impacted by the execution of the search warrant consulted Mr. Lindsay including Mr. Nippak and his mother, Mr. Althorpe and his spouse Ms. McKenna;
c. Mr. Lindsay was involved in negotiating with the Crown regarding items seized from Mr. Nippak’s mother’s residence that day or shortly thereafter;
d. On July 5, 2023, Mr. Althorpe, Ms. McKenna, and two other potential witnesses in this matter – Mr. Sanderson and Mr. Corrigan – met with Mr. Lindsay at his office in circumstances where the Crown asserts that Mr. Lindsay may be inferred to have provided legal services, whether formally or informally;
e. Mr. Althorpe and Mr. Sanderson subsequently faced weapons charges related to items seized upon execution of the warrant on June 30, 2023. Mr. Lindsay was counsel of record on those matters until the charges were stayed in 2024.
f. Mr. Lindsay’s office wrote to Crown counsel about bail variations for Mr. Lindsay’s clients on the weapons charges in October 2024.
g. Mr. Lindsay represented both Mr. Nippak and Mr. Lindsay upon their December 6, 2023 arrest on the present charges as well as in the bail hearing that followed on December 13-22. Mr. Althorpe retained other counsel in January 2024.
7The Crown raised the issue of conflict of interest at the outset of the bail hearing. The objection was found to be premature in the context of the limited issues being decided at a bail hearing. At the time, Mr. Lindsay indicated to the Learned Justice that “[i]f at some point in the future I don’t represent both or I don’t represent either, that’s a question for the future” (December 13, 2023 bail hearing transcript, p. 28). While Mr. Lindsay suggested that Mr. Althorpe might ultimately end up with different counsel, there was no commitment that the retainer was and had been strictly limited from the outset and indeed Mr. Lindsay suggested that there may be two separate counsel and he “may or may not be one of them” but that the Crown could decide later whether to bring this application once all of that was known (see transcript p. 30-31).
8The Crown raised the issue again after the bail decision was made and this motion was scheduled to place the matter for decision before me. A trial date has yet to be set for the eight pending charges facing Mr. Althorpe (including the one faced by Mr. Nippak). It is to be expected that a judicial pre-trial will address that issue – setting a trial date – reasonably soon.
Issue decided
9Has the Crown met its burden of showing a “realistic risk of a conflict of interests” at this juncture?
Analysis and discussoin
10I am satisfied that the Crown has discharged its obligation to bring this application at the earliest practicable stage: R. v. Neil, 2002 SCC 70, [2002] 3 SCR 631, para. 38. If the matter was found to have been prematurely raised at the bail hearing, that critique is not true today. While a decision to remove counsel due to alleged conflict may have some impact on the timing of the trial at this juncture, a similar decision made later in the process would potentially have a much graver impact on the timing of the trial.
11In deciding an application of this type, I am required to balance a number of competing interests and concerns. I distill the following guiding principles from the case law presented to me by the parties:
a. The court has a broad, inherent jurisdiction to resolve issues of conflicts of interest that may arise in the course of litigation, whether criminal or civil: Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 SCR 649 at para. 13-15.
b. The right of Mr. Nippak to his counsel of choice is not lightly to be interfered with absent compelling reasons, but it is not absolute and is subject to being balanced against public policy, the public interest in the administration of justice and basic principles of fundamental fairness: Re Regina and Speid, 1983 CanLII 1704 (ON CA) at paras. 6-7.
c. Counsel’s duty to his client requires undivided loyalty, a duty that is not only for the benefit of the client but also to safeguard the overall integrity of the justice system. Where there is joint representation of co-accused, an actual conflict may exist where the course of conduct that is in the best interest of one client if followed may not be in the best interest of the other: R. v. W. (W.), 1995 CanLII 3505 (ON CA), 1995 CarswellOnt 983 (Ont. C.A.) at para. 36-39.
d. Even where the acceptance of the retainer by the lawyer does not entail an immediate, identified conflict of interest between two or more clients, the lawyer’s duty of loyalty may be in conflict where there is a substantial risk that the lawyer’s representation of the client would be materially and adversely affected including where there are “conflicting pressures on judgement”: R. v. Baharloo, 2017 ONCA 362 at para. 29 and 31-36.
e. Effective assistance may be impaired if there exist circumstances where the lawyer may be tempted to prefer other interests over those of his or her client, whether those other interests arise from present or former retainers or of a third person: CNR, supra, at para. 25-26.
f. The evidentiary threshold to be met is that there must be a “realistic risk of a conflict of interests” before acting to remove a party’s counsel of choice: R. v. W. (W.), at para. 35.
g. Where the issue is raised at the trial level, the court must be concerned with both actual and potential conflicts that may develop as the trial unfolds and must necessarily speculate to some degree as to issues which may arise and the course the trial may take without being privy to confidential discussions counsel may have had that might reveal possible sources of present or future conflict: R. v. W.(W.), at para. 35.
12A waiver, while of some weight in the assessment of the risk, is not determinative since a waiver cannot by its nature be irrevocable and can never accurately anticipate future events.
13In the present case the waiver, such as it is, can be afforded only very limited weight:
a. There is no evidence that Mr. Nippak has received independent legal advice nor is there evidence that any of the other persons connected to the investigation who have consulted Mr. Lindsay have similarly obtained independent legal advice or considered the issue of waiver.
b. There is no evidence that any arrangements were made at the outset of any of the other formal or informal retainers Mr. Lindsay has had in connection with this matter or the investigation of it to limit retainers, to warn clients not to convey confidential information beyond defined parameters, or any similar steps taken to minimize the risk of future conflicts arising.
14I understand that Mr. Althorpe has represented through counsel that he “sees no conflict” and consents to Mr. Lindsay acting and that he has reviewed the matter thoroughly with his new counsel. However, to posit but a single potential future issue, he may see no conflict today where it appears that Mr. Nippak intends to conduct his defence in a manner which is in parallel to Mr. Althorpe or even coordinated with him, but circumstances may arise in future where it may be in Mr. Nippak’s interest to alter his current course in some way. He may need to consider whether to plead guilty or to provide evidence that may prove incriminating of Mr. Althorpe in some way but disculpatory to himself. Mr. Althorpe’s waiver, as informed as it may be in the current circumstances, can only be construed in the context of the current landscape and he cannot bind himself to a future course of conduct faced with circumstances not yet known.
15Mr. Lindsay’s representation on the issue in his factum was necessarily quite heavily qualified. He cannot assert that no confidential information relevant to the charges to be tried was received by him. Rather, he states only that “to the best of counsel of record’s recollection”, confidential information was not provided by Mr. Althorpe to Mr. Lindsay “that could realistically impede his defence or work to his detriment in any way” (emphasis added). Mr. Lindsay’s current evaluation of the use that such confidential information as he possesses may be put in future is of little utility in assessing the future risk of conflict. His client is entitled to receive the benefit of the best advice counsel can provide unfettered by prior obligations or entanglements of counsel.
16Mr. Althorpe, who may have a different recollection about what information he conveyed to Mr. Lindsay, has not made any comment at all about the nature of the confidential information imparted by him to his former counsel.
17In the circumstances I cannot afford more than limited weight to the waivers that have been offered for my consideration.
18It seems to me that faced with an application such as the present one brought at this stage of the pre-trial process, my task is to objectively assess the degree of risk that Mr. Lindsay may find himself in an actual conflict of interest as the case unfolds and bearing in mind the limited ability of the parties or a judge to forecast the future path of a case with precision.
19The sources of present and future potential conflict arising from the various retainers that Mr. Lindsay has had prior to assuming Mr. Nippak’s defence on this case are myriad. A partial list that springs to mind includes the following:
a. Both defendants currently assure me through counsel that a “cut throat” defence will not be made by either. While I don’t doubt their sincerity in offering those assurances today, such a decision is only true for as long as it is true. The Crown’s case may prove stronger than either of them anticipates. A witness’ evidence may prove more damaging than anticipated. Counsel for each party owes a duty to their client to be continually assessing the state of the case and to consider what steps may be in the best interest of the client and to discuss those possible steps with the client unfettered by any prior commitment or other obligation of loyalty.
b. Both defendants will need to assess whether they intend to call evidence or to testify at trial and will need independent advice before making such a momentous decision unaffected by information learned in confidence by Mr. Lindsay while representing one of them or any other connected parties.
c. Other persons may be called as witnesses at trial with whom Mr. Lindsay has had a prior professional engagement and information gleaned from that prior involvement may impact how he carries out the cross-examination of such witnesses placing his duties to the witness and to his current client in potential conflict.
d. Mr. Lindsay’s formulation of strategy for conducting the defence generally may similarly be impacted, consciously or unconsciously, by his continuing duty of loyalty to his former clients which include not only Mr. Althorpe but his spouse and other potential witnesses.
20It is clear to me that the risk of a conflict arising in the future is significant and realistic. None can predict with certainty the turns that a trial of this complexity may take. Mr. Lindsay has worn a number of hats during the unfolding of this investigation and arrest that present a very real and present danger of significant harm.
21The duty owed by a lawyer to a client extends far beyond the mere presence and use of confidential information. Those duties include the duty to avoid conflicting interests, the duty of commitment to the client’s cause and a duty of candour in providing advice to the client: Neil at paras. 17-19. The duty of commitment means the lawyer must not be in a position of “soft peddling” advice to client “A” to avoid that client adopting a course of action that might be detrimental to former client “B”.
22The risk of a future conflict crossing the line from potential to actual is significant while the fallout from such a risk materializing grows exponentially with time. Had both defendants retained separate counsel following the bail hearing as Mr. Lindsay suggested was possible, the impact upon the progress of this case – particularly given the fact that one co-defendant remains in pre-trial custody – would have been negligeable. The delay entailed at this juncture by a change of counsel is certainly material, but it is one that can be managed given no trial date yet having been fixed and the likelihood of any such date being a year or more in the future affording some breathing room for new counsel to climb the learning curve of a complex case such as this.
23Mr. Nippak’s choice of counsel is entitled to significant deference and weight. However, as Dubin J.A. remarked in Speid (at para. 16): “Mr. Speid has a right to counsel … but he has no right to counsel who, by accepting the brief, cannot act professionally. A lawyer cannot accept a brief if, by doing so, he cannot act professionally, and if a lawyer so acts, the client is denied professional services.”
Disposition
24Accordingly, I ordered that Mr. Lindsay must be removed as solicitor of record for Mr. Nippak and remanded the parties to the next scheduled date (an in-court judicial pre-trial) where a timetable for future steps can be discussed.
25Orders accordingly.
S.F. Dunphy J.
Date: August 29, 2024