R. v. Lewis, 2011 ABQB 227

Court of Queen ’ s Bench of Alberta Citation: R. v. Lewis, 2011 ABQB 227 Date: 20110405 Docket: 090764648Q1 Registry: Edmonton Between: Her Majesty the Queen Applicant - and - Jamie Terrance Lewis, Brandi May Sokol and Ossman Rahime Accused _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M.

Ross _______________________________________________________ [ 1 ] The Crown seeks advice and directions regarding a potential conflict of interest in this pending trial on charges of drug trafficking and possession, conspiracy to traffic, firearms offences and possession of proceeds of crime. [ 2 ] Two of the three accused in this matter were initially represented by the same counsel, Jamel Chadi. He represented both Jamie Lewis and Ossman Rahime for a period of at least 8 or 9 months. He ceased representing Mr. Rahime shortly before the preliminary inquiry. Since that time Mr.

Rahime has had other counsel, first Mr. Juneja and very recently Mr. Trela. Mr. Chadi continued to represent Mr. Lewis until December 2010. Since then, Mr. Lewis has been represented by a member of Mr. Chadi’s law firm, Howard Poon. Mr. Poon never personally acted for Mr. Rahime, and has represented to the court that he does not personally possess any confidential information relating to Mr. Rahime. As a member of Chadi & Company, however, he is imputed to have the knowledge of the law firm.

[3] Mr. Lewis is charged with drug trafficking and possession, conspiracy to traffic, firearms offences and possession ofproceeds of crime. Mr. Rahime is charged with possession of proceeds of crime only. [4] Mr. Chadi has also previously represented Eric or Rick Pemberton, who is named in the indictment as an unindicted co-conspirator with Mr. Lewis. However, Mr. Pemberton is not on the Crown’s witness list. I have not been advised whether the matter thatMr. Chadi represented Mr.

Pemberton on is factually related to this matter. [5] The Crown relies on a number of passages in the recent decision of Justice Greckol in R. v. Caines, Alcantara andKnapczyk, 2011 ABQB 82, in relation to the issue of conflict of interest and the potential for resulting delay and other trial issues.

Noissue is taken by defence counsel with the accuracy of the statements of law in these passages, and I will refer primarily to that decisionfor the applicable principles of law. [6] One principle of law is that the Crown shares a responsibility with counsel who are representing multiple accused, and,indeed, with the court, to take steps where there is a conflict of interest, or potential conflict of interest, that may affect the accused’srights to a fair trial within a reasonable time.

This includes taking steps, where possible, to avoid the development of a conflict of interestduring the course of trial which may result in delay affecting not only the accused who have had multiple representation but co-accusedas well: R. v. Caines, Alcantara and Knapczyk, para. 356. [7] When the issue of conflict of interest is being considered by the trial judge before trial, the “trial judge must speculate to adegree as to issues that may develop as the trial unfolds. The trial judge must proceed with caution.

When there is any realistic risk of aconflict of interests, the trial judge must direct that counsel not act for one or possibly either accused”: R. v. Caines, Alcantara andKnapczyk, para 338, citing R. v. Widdifield, (1995), (ON CA), 25 O.R. (3d) 161 (C.A.); see also R. v. McCarroll,2005 CarswellOnt 949. [8] The situation between Mr. Lewis and Mr.

Rahime as represented to me at this time is that there is no actual conflict ofinterest, but there is a potential that a conflict of interest may develop during the trial, should defence strategies diverge or should Mr.Rahime decide to take the stand in his own defence. Mr. Poon submits that “most if not all of the defences of Ossman Rahime and JamieLewis coincide and would point to an acquittal of both individuals given the facts are an alleged possession of proceeds of crime asbetween them”. Nonetheless, it is conceded that, if Mr.

Rahime elects to testify in his own defence, no member of the Chadi & Companylaw firm could cross-examine him. Mr. Poon submits that this eventuality cannot be foreseen at this time. Mr. Rahime, of course, isentitled to testify in his own defence and does not have to make a decision as to whether he will do so until the Crown closes its caseagainst him. I conclude that there is a realistic risk that Mr.

Rahime will choose to testify, and that a conflict of interests may developduring the trial. [9] A primary concern in the context of multiple representation and conflict of interest is the potential for the misuse ofconfidential information. Even where there is not an issue in relation to confidential information, a lawyer may be unable to represent aclient whose interests conflict with another present or past client. The lawyer’s obligation to his or her client must be undivided.

Where alawyer acts or has acted for more than one client, there may be a concern about soft peddling the defence of one client out of concern forthe other client: R. v. Caines, Alcantara and Knapczyk, para. 329. [10] The concern about misuse of confidential information is very real in this situation because Mr. Chadi acted for Mr. Rahimenot just on a related matter, but on precisely the charges that are going to court. I don’t question Mr. Poon’s statement that he has nopersonal confidential information regarding Mr. Rahime, but the matter has to be considered from the perspective of the public.

Fromthat perspective, Mr. Chadi and Mr. Poon have been practicing in the same office and firm at the time of the joint representation andsince. Not only Mr. Chadi, but other persons working in the firm in contact with Mr. Poon would likely possess confidential informationpertaining to Mr. Rahime. There were no protective screens in place to make sure that information was not passed on to Mr. Poon.

Andthis is information about the subject matter of the trial, not about a previous and unrelated retainer. [11] Even if concerns about misuse of confidential information could be resolved, there would remain a concern about dividedloyalties. It is because of this concern that Mr. Poon acknowledges that he could not cross-examine Mr. Rahime. Mr. Poon submits that,should this situation arise, he would retain independent counsel to conduct the examination. Both Mr. Poon and Crown counsel refer meto the procedure developed by Madam Justice Veit in the case of R. v. Dix (1998), 1998 ABQB 92 , 218 A.R. 18, and suggest

that a similar procedure could be employed in this case. [ 12 ] In R. v. Dix , counsel for the accused was unexpectedly put in a situation of conflict shortly before trial on two first degree murder charges. Less than two months before a complex trial, the Crown disclosed to the defence the name of a jailhouse informant who would be called to testify against Mr. Dix. The informant had been represented by the accused’s counsel on other unrelated matters in the past. The informant declined to waive solicitor-client privilege associated with his previous discussions with the accused’s counsel.

The accused’s counsel advised that he had no current memory of his conversations with the informant, he and his associates had sealed all of the closed files in their office, he was prepared to retain an outside lawyer to cross-examine the informant and Mr. Dix had agreed to this procedure, and he and his associates would undertake not to discuss their contact with the informant with each other or with the lawyer who would be retained for cross-examination. Mr.

Dix advised the court that he had confidence in his counsel and felt that if he were required to change counsel his chance of a fair and speedy trial would be adversely affected. [ 13 ] Justice Veit accepted counsel’s proposal in that case, adding some additional precautions in relation to members and employees of the law firm, and to ensure that there would be no contact between the accused’s counsel’s firm and the independent counsel. [ 14 ] The situation in R. v. Dix was very different from the one before me in relation to the way in which the conflict arose and the impact on Mr.

Dix’s right to counsel of his choice. In R. v. Dix , the conflict arose unexpectedly and not because of anything done by Mr. Dix or his counsel. This was also the case in R. v. Pyszniak , 2000 ABPC 199 , a case cited by the defence. In contrast, in this case, the potential conflict is due to the conduct of Mr. Lewis, Mr. Rahime, and their mutual counsel. The Code of Professional Conduct of the Law Society of Alberta provides in

Chapter 6, Rule 2 that “a lawyer must not act for more than one party in a conflict or potential conflict situation unless all parties consent and it is in the best interests of the parties that the lawyer so act.” Certainly Mr. Chadi was aware of this and I assume that Mr. Lewis and Mr. Rahime were as well as they are required to consent to multiple representation where there is a potential conflict situation. Presumably they felt it was in their best interests at the time, perhaps because of cost or difficulty in finding other experienced counsel or for some other reason.

But where clients consent to such a situation, they must be aware that a conflict might develop and that the lawyer would then be required to cease acting for one or both of them.

So their choice of counsel has not been affected by matters beyond their control, but by their own actions. [ 15 ] Commentary in the Code of Professional Conduct indicates that, in a multiple representation situation, the lawyer must stipulate that, if a dispute develops, the lawyer will be compelled to cease acting altogether unless, at the time the dispute develops, all parties consent to the lawyer continuing to represent one of them.

Consent given before the fact is ineffective since the party granting the consent will not at that time be in possession of all relevant information. [ 16 ] The circumstances regarding how Mr. Chadi ceased acting for Mr. Rahime and continued to act for Mr. Lewis have not been elaborated. It was not on the basis that an actual conflict or dispute has arisen between Mr. Lewis and Mr. Rahime, but may have been due to the realistic possibility of a conflict arising during the trial. While I assume that Mr. Rahime has consented to Mr. Chadi or members of his firm acting for Mr.

Lewis at this time, the crucial time to consider consent is when an actual conflict of interest arises. This is the point at which Mr. Rahime would be in possession of all relevant information, and it may be that Mr. Rahime would no longer be prepared to consent to Mr. Chadi or Mr. Poon representing Mr. Lewis at that time. So the first difficulty with the mechanism that is being proposed to the court - that independent counsel be appointed to cross-examine Mr. Rahime, if necessary - is that use of this mechanism would effectively override Mr.

Rahime’s right to withhold his consent when he is in possession of all relevant facts. [ 17 ] The second difficulty with the proposed mechanism is practical: how could independent counsel be prepared to cross- examine? As I have said, at this point there is a potential conflict only. It is impossible to know exactly how and when an actual conflict in defence strategies might arise and what the scope of it would be. Thus it is impossible to know the scope of the potential cross- examination.

It is expected that this will be a long trial - 21 days for the Garifoli application in June, with evidence from that application potentially applied to the trial, followed by a longer period for the trial proper in the fall. If independent counsel were not appointed until if and when Mr. Rahime elects to testify, a lengthy adjournment could be necessary to obtain transcripts and permit independent counsel to review them. This could be avoided by having independent counsel attend the trial throughout, but then Mr.

Lewis would bear the cost of paying for two counsel for a lengthy trial. [ 18 ] The third issue that I have regarding the use of independent counsel is that, in the cases I have been referred to, there was a clear benefit to the procedure. In R. v. Dix , the accused was able to retain his counsel of choice and to have a fair trial in a reasonable time. In R. v. Pangman , [1999] M.J.

No. 418 (Q.B.) , another case referred to me by Crown counsel, the court concluded that because of the large number of accused persons (35), the limited availability of experienced defence counsel, and the cost of retaining separate counsel for each accused, multiple representation was essential. In that case, multiple representation and the potential for conflict could

not be avoided without seriously delaying the trial, depriving the accused of counsel of their choice and limiting the experience ofcounsel available to take the trial. Thus, when an actual conflict arose, independent counsel was appointed for the accused whoseinterests were in conflict, but previous counsel was permitted to continue to act for the other accused persons regarding whom conflictremained only a potential. The defence has also referred to R. v.

Brissett (2005), (ON SC), 74 O.R. (3d) 248 (S.C.J.),at para. 49, for comments on the right to counsel of own’s choice, although Hill J. concluded in that case that counsel was disqualified byreason of having previously acted for a Crown witness. He held that the “injection” of independent counsel to cross-examine the witnesswould not resolve the conflict and that a “very real perception would remain of the potential for misuse of confidential information” (atpara. 78). [19] In this case, the issue of choice of counsel is not at the forefront as Mr. Lewis, in accepting a situation where Mr.

Chadi wasacting for both him and Mr. Rahime, should have been aware that Mr. Chadi and his firm might not be able to continue to act for eitherof them. Further, there is no suggestion that other expert counsel were not or are not available. It is also not clear to me that appointingindependent counsel will promote the interest in a speedy trial. If independent counsel were not appointed until if and when Mr. Rahimeelects to testify, that could result in a significant delay.

If independent counsel were appointed earlier, there would be the issue ofsignificant additional cost and there might still be a delay in arranging for the availability of independent counsel for the commencementof trial. [20] Finally, it is not clear that changing counsel at this time would cause any significant delay in the trial. All that has been scheduled so far is a voir dire on a Garifoli application, which is scheduled to commence on June 2nd. The trial proper has not yet beenscheduled.

Assuming that the Garifoli application could not go ahead in June, it could potentially be scheduled for the fall, with the trialproper following soon thereafter. [21] In

summary, while I accept that this court has jurisdiction to put in place special mechanisms that will allow counsel to actdespite a conflict of interests, in my view, on balance, this is not a proper case to do so. The negative effects of allowing Chadi &Company to continue to act for Mr. Lewis in the event of an actual conflict between Mr. Lewis and Mr. Rahime outweigh the benefits inthe circumstances of this case. This is not a proper case for the court to utilize the mechanism of independent counsel for cross-examination in order to authorize Mr. Poon to act.

To be clear, I am not finding that there has been anything improper in Chadi &Company’s representation of Mr. Lewis and Mr. Rahime as of this date, as no actual conflict of interests has yet arisen between these co-accused. But, because of the realistic risk that a conflict of interests may develop during the course of the trial, I am directing that neitherMr. Poon nor any other member of Chadi & Company may represent Mr. Lewis at the trial of this matter. Heard on the 11th day of March, 2011. Dated at the City of Edmonton, Alberta this 4th day of April, 2011. J.M. Ross J.C.Q.B.A. Appearances:

Adam Halliday Public Prosecution Service of Canada for the Respondent Howard K. Poon Chadi & Company for the Accused Lewis Dale M. Knisely Knisely Shipanoff LLP for the Accused Sokol Simon Trela Worobec Law Offices for the Accused Rahime