Susan L. Reid

The Crown brought a motion to remove two lawyers and their firm from the record due to a conflict of interest.

The lawyers, partners in the same firm, were representing two co-accused charged with sexual assault.

The respondents opposed the motion, asserting solicitor-client privilege over their defence positions and formally waiving any conflict.

The court addressed threshold procedural issues regarding the review of sealed affidavit evidence and the concept of waiver of solicitor-client privilege.

The court found that a judge's review of privileged information for adjudication purposes does not destroy or waive the privilege.

However, considering the differing DNA evidence for the co-accused, the court concluded there was a substantial and realistic risk that their defence positions would diverge, creating conflicting duties of loyalty for their counsel.

Despite the clients' waivers, the interests of justice, including the integrity of the trial process, predominated.

The motion to disqualify and remove counsel was granted.

Three Toronto police officers charged with sexual assault sought a publication ban on investigative materials filed by the Crown in a related application to remove counsel.

The court applied the Dagenais/Mentuck test, finding a real and substantial risk to trial fairness due to potential juror stigmatization and witness tainting, especially given the salacious nature of the allegations against police officers.

While acknowledging the public interest in scrutiny, the court determined that allowing media access to the information (without publication) and expert commentary provided a sufficient substitute for full public disclosure.

The publication ban was granted, prohibiting publication until the jury retires or the charge is withdrawn/dismissed.