Whitebear v Alberta, 2012 ABQB 626

Court of Queen ’ s Bench of Alberta Citation: Whitebear v Alberta, 2012 ABQB 626 Date: 20121012 Docket: 110322690Q1 Registry: Wetaskiwin Between: Her Majesty the Queen Respondent - and - Justin Whitebear Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] Justin Donovan Whitebear applies for a judicial stay of proceedings as a remedy for alleged breaches of his s. 7 (fundamental justice) and 11(d) (trial within a reasonable time) Charter rights. In Mr.

Whitebear's submission, s. 24(1) (remedies) and the inherent jurisdiction of the court in relation to abuse of process lead to a stay as being the appropriate result for what he describes here as misconduct by the Crown and a denial of rights by Provincial Court. [ 2 ] Mr. Whitebear is charged on an eight-count indictment relating to allegations of firearm use at a time when he was serving the remainder of a sentence on earlier matters in the community.

[ 3 ] As a result of these charges, Mr. Whitebear was taken into custody. Because of his status of serving a sentence in the community, the Crown sought to collapse the community supervision portion into jail time for the balance of the sentence. Mr. Whitebear has been in custody since March 17, 2011. Bail has not been spoken to because the collapse hearing relating to the earlier conviction has not yet been dealt with. Background [ 4 ] Many of the facts giving rise to this application are not in dispute. The underlying charges arise out of an incident which occurred on March 4, 2011 at or near Hobbema, Alberta.

It is alleged that Mr. Whitebear and a youth, T.T., shot at each other. There are apparently other civilian witnesses who observed the events of that day. Both Mr. Whitebear and T.T. were charged, but on separate informations. The two matters proceeded separately through the courts. [ 5 ] On his arrest, Mr. Whitebear was taken to the Edmonton Remand Centre, where he has remained ever since. After some delay, Legal Aid appointed counsel for him; Miles Cymbaluk of Wetaskiwin on the underlying charges and Lisa Trach of Edmonton on the "collapse" hearing. Ms. Trach had represented Mr.

Whitebear on the earlier matter which had resulted in the community supervision aspect of his sentence. [ 6 ] After a number of adjournments, a trial date was set for September 19, 2011 for the firearm and breach charges. The collapse hearing was set for September 20, 2011. [ 7 ] At some stage before the trial date, Mr. Whitebear sought to have Legal Aid appoint Ms. Trach to represent him on both matters, but Legal Aid declined, apparently because the trial was set for Wetaskiwin and Mr. Cymbaluk practices there, while the collapse hearing was set for Edmonton where Ms. Trach practices. Mr.

Cymbaluk was apparently then retained to represent Mr. Whitebear on both matters and Ms. Trach believed that she was no longer involved. [ 8 ] Mr. Cymbaluk was also representing T.T. on the charges he faced arising out of the same incident. Those charges were being dealt with in Youth Court in Wetaskiwin. Before Mr. Whitebear's trial, T.T. pled guilty and was sentenced. [ 9 ] A case management conference was held on July 11, 2011 before Skinner, ACJPC. Case management is apparently a Provincial Court initiative in Central Alberta to assist with scheduling and trial readiness issues.

The memo prepared by ACJ Skinner recorded that Mr. Cymbaluk had a conflict as he had represented a "youth who is a witness (prime)". The memorandum of the conference also notes that "defence counsel needs offer to resolve – if not resolved defence counsel to be removed". [ 10 ] The Crown was directed to make a resolution offer by July 14, which it apparently did. [ 11 ] The resolution offer was not accepted, and immediately before the trial started on September 19, Mr. Cymbaluk sought to withdraw as counsel because of the conflict. He was successful in withdrawing, and the trial was adjourned. [ 12 ] Ms.

Trach was subsequently retained by Legal Aid to represent Mr. Whitebear on both matters. On October 25, 2011 she advised the Crown and the Court of an intent to apply for a stay based on what had occurred with respect to Mr. Cymbaluk's conflict and how that had been handled by the Crown and the Court. In the meantime, a hearing date of January 13, 2012 was set for the stay application and materials were directed to be filed by November 21 on behalf of Mr. Whitebear. The trial was set for April 13, 2012. [ 13 ] At the hearing on October 25, Ms.

Trach sought production of the case management conference memorandum arising out of the July 11 conference. Judge Andreassen ordered that it be produced, but for some reason, it was not provided to Ms. Trach until after an order by Sanderman J. when the matter appeared in Queen's Bench Appearance Court after Mr. Whitebear had reelected trial by superior court judge in January, 2012.

[ 14 ] Mr. Laluk wrote Ms. Trach on November 1, 2011 advising that one of the Crown witnesses was unavailable for the trial on April 13, 2012. He sought several admissions which would have obviated the need for calling the witness. Alternatively, he advised that the trial would have to be adjourned. [ 15 ] Ms. Trach responded on December 15, advising that she was not prepared to make the admissions Mr. Laluk was seeking, and advising that he should have his assistant contact hers to reschedule the trial. [ 16 ] Ms.

Trach sought further Crown disclosure relating to the underlying charges set for trial in April, by letter dated December 21, 2011. She had received some disclosure while she was initially acting for Mr. Whitebear on the collapse hearing in the spring or early summer of 2011, but concluded that it was inadequate. [ 17 ] On December 21, 2011, she also filed the Charter notice, which was to have been filed by November 21. [ 18 ] The January 13 stay application hearing was adjourned, mainly because Ms.

Trach concluded shortly before the hearing that she would have to be a witness as to the details of a conversation between herself and Crown counsel, John Laluk, following the adjournment of the September 19 trial. Mr. Engel was retained to act for Mr. Whitebear. On January 13, Mr. Engel appeared and Mr. Whitebear reelected trial by Queen's Bench judge alone. [ 19 ] After Mr. Engel's involvement and the transfer of the matter to Queen's Bench, the stay application was set for September 24 and 25, 2012 in Wetaskiwin, with the trial set for the week of November 19, 2012 also in Wetaskiwin.

Stay Application Hearing [ 20 ] The only evidence called on the stay application (which proceeded as a voir dire ) was that of Lisa Trach and Justin Whitebear. Mr. Whitebear confirmed that he waived privilege with respect to his discussions with Ms. Trach, and with Mr. Cymbaluk. [ 21 ] Ms. Trach testified as to her involvement in the matter, and her strategy on the collapse hearing to insist that it be heard after the criminal trial. It was (and remains) her view that Mr. Whitebear should await the outcome of the criminal trial before responding to the collapse hearing. She was (and remains) concerned that Mr.

Whitebear's participation in the collapse hearing before the trial might prejudice his trial. [ 22 ] She testified that she was concerned when she heard that Mr. Cymbaluk was representing T.T. as well as Mr. Whitebear, and that the criminal trial had been adjourned because of a conflict arising from that representation. She was aware of Mr. Whitebear's interest in trying to get out of jail as soon as possible, and considered it important that the criminal trial proceed expeditiously. She was not aware of Mr. Cymbaluk's potential (or actual) conflict until September 19 when Mr.

Laluk telephoned her and enquired what was happening for the September 20 collapse hearing as a result of the adjournment of the criminal trial. Ms. Trach testified that she was surprised by the call, as she had understood that Mr. Cymbaluk was by then representing Mr. Whitebear on both matters. Mr. Laluk's telephone call was the first she heard about the conflict with T.T. or the adjournment and she testified that she and Mr. Laluk had a heated discussion about what had occurred and why it had happened. [ 23 ] According to Ms. Trach, Mr.

Laluk told her conflicts like this one occurred regularly in Wetaskiwin and that he felt uncomfortable about this. [ 24 ] Once she had been retained by Legal Aid on both matters after the September 19 adjournment and Mr. Cymbaluk's withdrawal, she had both matters put over until she could get instructions. She recalled the personal appearance in Wetaskiwin Provincial Court on October 25, and the directions that came out of it relating to the Charter Notice and the January 13, 2012 stay application hearing.

[ 25 ] Once she had reviewed the Crown disclosure in relation to the underlying charges, she concluded that it was inadequate and wrote Mr. Laluk a lengthy letter on December 21, seeking a number of additional items of disclosure. This related to the April trial and not the upcoming stay application. [ 26 ] Ms. Trach wrote to Mr. Laluk on January 6, 2012 seeking confirmation of the contents of their telephone conversation on September 19. Mr. Laluk responded by letter on January 9 somewhat strategically that he was unable to confirm the conversation.

He did not, however, dispute that the conversation occurred or the accuracy of her letter. [ 27 ] When she did not get a favourable response to her letter of January 6, Ms. Trach realized that she would have to be a witness at the stay application, and she immediately contacted Mr. Engel (with whom she had already discussed the circumstances of the case). Mr. Engel agreed to act, but it was apparent that the matter could not proceed on January 13 and the stay application was adjourned to be rescheduled to Queen's Bench following Mr. Whitebear's reelection. [ 28 ] Ms.

Trach's evidence on the subject was the only evidence before me, and I have no reason to disbelieve her. [ 29 ] Mr. Whitebear testified on the voir dire . His evidence was that he was concerned about the delay in appointing counsel for him after he was arrested. He did not meet Mr. Cymbaluk in person until the day of trial, September 19, 2011. He conversed with Mr. Cymbaluk over the CCTV during one or two court appearances. He had a telephone conversation with him sometime over the summer of 2011 about a possible plea deal and he spoke to Mr. Cymbaluk on the Friday before the September 19 trial date.

He never had a discussion with Mr. Cymbaluk about what happened on March 4, 2011. [ 30 ] He was not aware that Mr. Cymbaluk was acting for T.T. until the Friday before the September trial date and had never consented to that or been asked to consent to that. During that telephone conversation, he was advised that there might be a problem with the trial. Mr. Whitebear was advised that if T.T. showed up to testify, Mr.

Cymbaluk would have to withdraw as he had acted for T.T. on his guilty plea. [ 31 ] On the morning of trial, while T.T. was not present, the Crown represented that he could be brought to court by the RCMP as he was in custody in Calgary. RCMP officers were waiting to transport him, if necessary. On the basis that T.T. was likely to show up and Mr. Cymbaluk would then have to withdraw as counsel, Mr. Cymbaluk asked Mr. Whitebear if he could talk to the Crown about a further resolution offer. Mr. Whitebear agreed to let him do so. Mr.

Cymbaluk returned some time later with a new offer, but that was unacceptable to Mr. Whitebear. Mr. Whitebear was insistent that he have a trial. [ 32 ] Because the matter could not be resolved, Mr. Cymbaluk applied to withdraw, and the trial was adjourned. The matter was to be brought forward at a later date after new counsel was appointed, to set a new trial date. [ 33 ] Mr. Whitebear testified that at no time had he authorized Mr. Cymbaluk to discuss or pursue resolution of the matter other than by trial, other than the morning of trial. [ 34 ] The collapse hearing was adjourned the next day, and Ms.

Trach was eventually appointed by Legal Aid to represent Mr. Whitebear on both matters. [ 35 ] Several appearances took place between September 19 and October 25 when the stay application date and a new trial date were set. On November 1, Mr. Laluk for the Crown advised that one of the Crown witnesses was unavailable for the April 13, 2012 trial and if his presence at trial was necessary, the trial would have to be rescheduled. He sought admissions which would obviate the need for the witness's appearance. [ 36 ] Ms. Trach did not respond to Mr.

Laluk's November 1 letter until December 15, when she advised that she was not in a position to admit the witness's statement and asked that Mr. Laluk contact her assistant to arrange a date to bring the matter forward to find a new trial date.

[ 37 ] In the meantime, the November 21 deadline imposed by Andreassen PCJ on October 25 for filing a Charter notice and argument had passed. The Charter notice was filed on December 21, 2011. The Crown does not appear to have objected to the late filing. There was no correspondence about the January 13 stay application date being rescheduled. [ 38 ] On January 6, 2012, a week before the stay application, Ms. Trach wrote Mr. Laluk in connection with the upcoming stay application, seeking confirmation of her version of the telephone conversation they had on September 19, 2011. [ 39 ] When Ms. Trach received Mr.

Laluk's January 9 letter advising that he would not confirm their telephone discussion, she concluded that she would have to be a witness at the stay application to testify as to the conversation and could not be counsel on the application. She took steps to have Mr. Engel take over the matter. [ 40 ] The January 13 stay application date was adjourned. Mr. Engel filed detailed submissions for the stay application on January 16, 2012.

The details and events leading to the transfer of the matter to Queen's Bench and the rescheduling of the stay application to September 24 and the trial to November 19 are not before me, but there is no suggestion that Mr. Engel has acted other than expeditiously since his retainer, and there are no complaints about the Crown's or Provincial Court's actions after September 19, 2011. Observations [ 41 ] At the outset, I would observe that until Mr. Engel's retainer after January, 2012, Mr. Whitebear does not appear to have been particularly well served. I only have the record, and Ms. Trach's and Mr.

Whitebear's evidence on the subject. None of the other court officers involved in the matter testified. I recognize that there are two sides to every story, and I do not have both sides. [ 42 ] But both Ms. Trach and Mr. Whitebear were credible witnesses on the voir dire . It was certainly in Mr. Whitebear's interests to have both matters – the trial and the collapse hearing – dealt with promptly because he was a young man in the Edmonton Remand Centre experiencing what might be described at best as dead and unpleasant time. Two for one credit was likely not available to him on at least the new charges.

The new charges, which included firearms offences, carried lengthy mandatory minimum sentences. [ 43 ] It is questionable whether Mr. Cymbaluk should have accepted retainers for both Mr. Whitebear and T.T. at all, let alone in circumstances where he did not obtain Mr. Whitebear's informed consent. It is clear that Mr. Whitebear and T.T. would be witnesses against each other at their separate trials. In such circumstances, it is a reasonable possibility that one client might turn against the other, or take a position adverse to the interest of the other.

Plea deals are sometimes made on the basis of one accused cooperating in the prosecution of other accused. There is no evidence before me as to whether that was the case here, and the details of Mr. Cymbaluk's conflict are not known. None of these potential situations is out of the realm of reasonable possibility, and it is certainly likely that a consideration in any resolution process would be an evaluation of the degree of participation or responsibility of each accused. The scope for real conflicts in such situations is enormous. [ 44 ] However, there may be no conflict at all.

Both accused (clients) may provide exactly the same information, and agree fully as to their roles and degrees of responsibility. Separate representation is not mandatory in all situations. [ 45 ] There is certainly an immediate appearance of conflict, or potential conflict, in one lawyer acting for two accused in related matters.

The spectre of a lawyer cross-examining a key witness who also happens to be his client in other matters is not a happy one and leads to serious questions about the due administration of justice. [ 46 ] Nevertheless, in many circumstances, conflicts can be waived through an informed consent process. [ 47 ] That was not done here. The potential conflict was not known by Mr. Whitebear until the eve of trial. It was known by the chief Crown in Wetaskiwin, Mr. Clark, Mr. Laluk and by ACJ Skinner on July 11 at the latest when it was discussed at the case management conference that day.

There is no evidence as to the discussions at that conference, other than what was recorded in the memorandum prepared at or following the meeting.

[ 48 ] At a minimum, Mr. Cymbaluk's dual representation should have occurred only after an informed consent from both Mr. Whitebear and T.T. He was getting information from both of them which was confidential and subject to solicitor-client privilege. The position taken on T.T.'s sentencing was that Mr. Whitebear had been the aggressor. Mr. Whitebear says that he never had a discussion about the events of March 4 with Mr.

Cymbaluk. [ 49 ] If that is the case, and there is no evidence before me to the contrary, it is surprising that resolution offers would be obtained and presented to a client including as late as the day of the scheduled trial, with no meaningful discussions about the case having occurred between the lawyer and the client. [ 50 ] A trial on September 19, which might have occurred had the case not been adjourned that day, would have been a disaster. [ 51 ] Thereafter, while Ms.

Trach was cognizant of her client's interests and had his confidence, she appears to have done nothing to prepare the stay application until long after the filing deadline, and sought confirmation of a key conversation only a week before the application was to be heard. The only way the stay application could have been heard was for the Crown to waive any consequences of only having the materials two and a half weeks before the hearing (with all of the Christmas and New Year's holidays intervening) and for Mr.

Laluk to confirm the eleventh hour letter relating to the conversation. [ 52 ] The hearing of the stay application was doomed before it began. Had Ms. Trach been more diligent, her status as a witness would have been determined long before January 6, and her materials would have been filed on time. If she needed to testify, Mr. Engel or other counsel could have been retained to conduct the application. Any adjournment meant that Mr.

Whitebear would remain in jail, pending the hearing and decision on the stay application at the earliest. [ 53 ] The Crown and the Court may have played a role in the need to adjourn the September 19 trial, but many months of the nearly year that has passed are not their responsibility. Law and Cases [ 54 ] The starting point is in the analysis is R. v. Neil , 2002 SCC 70 , which deals with conflicts.

The Supreme Court considered the ramifications of one member of a law firm having acted against one firm client's interests when acting for another firm client, while the client was being defended in the criminal proceeding by another lawyer from that firm. [ 55 ] There were a number of charges against Neil, and one of his business associates had consulted another lawyer in the same firm in relation to one matter where it was likely that both would be charged. The business associate had discussed a "cut throat" defence (blaming the co-accused) with the lawyer.

Ultimately, the business associate was represented by someone else from a different firm. [ 56 ] After the trial (and conviction of the accused) on a matter not involving the business associate, the conflict became known to the accused. A stay was entered on his application respecting the matter where he and the business associate were jointly charged, on the basis of the undisclosed and unknown conflict. [ 57 ] The Court considered a lawyer's general duties to his or her client, including fiduciary obligations and the well-understood duty of loyalty and confidentiality.

The Court emphasized that the lawyer has other duties (at para. 19): (

i) the duty to avoid conflicts of interest; (ii) the duty of commitment to the client's cause (zealous representation); and (iii) the duty of candour with the client.

[58] Conflicts were expanded at para. 31 as "a substantial risk that the lawyers' representation of the client would be materiallyand adversely affected by the lawyers own interests or by the lawyers' duties to another current client, a former client, or a third person." [59] "Lawyer" was equated to "firm" such that the conflicts of one lawyer affected all lawyers in the firm, a principle well knownfollowing MacDonald Estate v.

Martin, (SCC), [1990] 3 S.C.R. 1235. [60] The stay was set aside by the Supreme Court on the basis that a new trial would not be affected by the firm's conflict, and thecircumstances did not constitute the "clearest of cases" justifying a judicial stay. [61] Conflicts were dealt with in Chiefs of Ontario v. Ontario, (ON SC), [2003] O.J. No 580 (S.C.J.).

There, the issue was whether a law firm could continue to represent the plaintiff in circumstances where the objecting party had initiallyjoined with the named plaintiff to make common cause, and the objecting party had given consent to the law firm representing it and theother plaintiff. When the law firm took an adverse position to the objecting party by amending the proceedings to include the objectingparty as a defendant, the objecting party sought to have the law firm disqualified from continuing to act at all.

The law firm relied on theinitial consent to act for both parties. [62] Campbell J. disqualified the law firm, finding that the initial consent did not operate because of the changed circumstances.He considered the "basic principle" that a law firm cannot breach its dual obligation of confidentiality and loyalty to its former client. (Atpara. 122).

He noted that the Court has the power to remove a lawyer, even if the current and former client are content to have thelawyer continue to act, based on public policy grounds (at paras. 112 - 114). [63] He concluded at para. 146: There are some things that a law firm simply cannot do. A law firm cannot act for a client under a million dollar five-year confidentialretainer as general counsel and then, without explicit consent, attack the client for alleged breach of fiduciary duty, deception, andbribe-taking in respect of closely related matters. [64] I agree with Campbell J.'s analysis. [65] In R. v.

Caines, 2011 ABQB 82, the accused sought a stay because of delays in the case arising out of the eventualdisqualification of counsel as a result of conflicts. The case ultimately turned on the totality of the delay, the balancing between prejudiceto the accused and prejudice to the administration of justice, and the apportionment of responsibility for delay between the Crown andthe defence. [66] Greckol J. carefully reviewed the state of the law on responsibility for raising conflict issues, citing R. v. Con-Drain Co.

(1983) Limited, 2008 ONCJ 114 at para. 349: The court in Con-Drain Co. at para. 20 expressed the view that there is an obligation on the parties to raise the matter of conflict "at theearliest practicable stage," citing Neil at para. 38. It commented that when there are sufficient facts at hand, the disqualification motionshould be brought on notice before the start of the trial. According to the court at para. 21: ... The law requires both parties to be vigilant in avoiding conflict issues. It is not only the duty of the Crown to raise potential conflictsof interest.

There is also a heavy onus on the defence to ensure that there is no conflict posed by joint representation of co-accused: R. v.W.(W.), (1995), (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.). [67] She concluded at para. 360:

Conflict management ensures the timely and orderly conduct of criminal proceedings. In my view, it is necessary that these conflictissues be raised by both Crown and Defence, or by the court, so as to avoid delay, but also to enhance the administration of justice andthe truth seeking purpose of trials.

As counsel has argued, ultimately it is a question of trial fairness. [68] However, at para. 578, Greckol J. concluded that while the period of delay had been significant, and that the Crown had beenresponsible for or contributed to 11 months of the delay (including the shared delay with the accused arising out of the delay in removingcounsel for conflict), the overall delay had not been excessive in the circumstances and did not violate the accused’ s. 11(

b) right to havethe matter tried within a reasonable time. [69] Caines was followed by Ross J. in R. v. Lewis, 2011 ABQB 227. She noted at paras. 6 and 7: [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's rights to afair trial within a reasonable time.

This includes taking steps, where possible, to avoid the development of a conflict of interest during thecourse of trial which may result in delay affecting not only the accused who have had multiple representation but co-accused as 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 a degreeas to issues that may develop as the trial unfolds. The trial judge must proceed with caution.

When there is any realistic risk of a conflictof interests, the trial judge must direct that counsel not act for one or possibly either accused": R. v. Caines, Alcantara and Knapczyk,para 338, citing R. v. Widdifield, (1995), (ON CA), 25 O.R. (3d) 161 (C.A.); see also R. v.

McCarroll, 2005CarswellOnt 949. [70] In that case, there were concerns about misuse of confidential information, and the risk that the potentially conflicted lawyermight have to cross-examine another client of the firm. [71] Ross J. noted that while steps might be taken to protect confidentiality and allow the lawyer to continue to act, this was not aproper case in which to do that. Counsel were thus disqualified. [72] R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411, is a well-known disclosure case, but also deals with thejudicial stay remedy. The Supreme Court referred to R. v.

Jewitt, (SCC), [1985] 2 S.C.R. 128, which set out the standardformulation for the test for abuse of process at para. 59: I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young, supra, and affirm that "there is a residual discretion in a trialcourt judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice whichunderlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive and vexatiousproceedings".

I would also adopt the caveat added by the Court in Young that this is a power which can be exercised only in the "clearestof cases" (emphasis added). [73] The Court considered the relationship between abuse of process and violations of s. 7 (fundamental justice) of the Charterand remedies under s. 24(1). The Court concluded at para. 63 that it was unrealistic to wholly distinguish between abuse of process andbreaches of the principles of fundamental justice, although ultimately the Court held that there had been no violation of s. 7 and no staywas granted. [74] R. v.

Keyowski, (SCC), [1988] 1 S.C.R. 657 followed. There, the Court approved Jewitt and Young and theavailability of a judicial stay where (at para. 2) "compelling an accused to stand trial would violate those fundamental principles ofjustice which underlie the community's sense of fair play and decency" or where the proceedings are "oppressive or vexatious". Thepower is to be exercised only in the "clearest of cases."

[75] Wilson J., speaking for the Court, held at para. 4 that prosecutorial misconduct did not have to be demonstrated to give rise toan abuse of process, but she noted that the accused faced serious charges, the delays involved were not undue, no prejudice had beenshown, and "the administration of justice (would be) best served by allowing the Crown to proceed with the new trial." [76] The Supreme Court continued the discussion on judicial stays in Canada (Minister of Citizenship and Immigration) v.Tobiass, (SCC), [1997] 3 S.C.R. 391. That case dealt with ministerial interference in an immigration hearing.

Theessence of that case in relation to stays was the recognition that stays of proceedings where the reason for the stay did not impact on theaccused's right to a fair trial were rare.

This "residual category", citing from O'Connor, (at para. 89) includes circumstances in which aprosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamentalnotions of justice and thus undermines the integrity of the judicial process." [77] At para. 90, the Court held that where the prosecution has been conducted in such a fashion, two criteria had to be satisfiedbefore a stay was appropriate: 1. The prejudice caused by the abuse will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome,and 2.

No other remedy is reasonably capable of removing the prejudice. [78] There is then a third factor (at para. 92): whether the affront to fair play and decency is disproportionate to society’s interestin the effective prosecution of criminal cases; in other words a balancing of the interests in granting a stay and having the matterdetermined on its merits. [79] High in the Court's concerns about prejudice was that the misconduct might be carried into the future, and would offendsociety's sense of justice. [80] There, no stay was granted; the remedy was to designate a different judge to hear the case. [81] These cases were followed by R. v.

Conway, (SCC), [1989] 1 S.C.R. 1659. There, the Court discussed abuseof process at para. 8: Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with theprosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such adegree that to allow it to proceed would tarnish the integrity of the court.

The doctrine is one of the safeguards designed to ensure "thatthe repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society"(Rothman v. The Queen, (SCC), [1981] 1 S.C.R. 640, at p. 689, per Lamer J.).

It acknowledges that courts must havethe respect and support of the community in order that the administration of criminal justice may properly fulfil its function.Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution ofcriminal cases, then the administration of justice is best served by staying the proceedings. [82] In that case, a stay was sought to prevent a third trial of the accused after two previous convictions had been set aside. Thestay was not granted. [83] In R. v.

Regan, 2002 SCC 12, the Court referred to O'Connor and Tobiass and confirmed that abuse of process had beensubsumed within s. 7 Charter (fundamental justice) principles. It referred to the "residual category" of abuse of process unrelated to fairtrial. Such abuse of process was described (in para. 50) as proceedings which are oppressive or vexatious, and which violate fundamentalprinciples of justice underlying the community's sense of fair play and decency. [84] The Court repeated the requirement that stays be granted only in the "clearest of cases" (at para. 53). At para. 55 it held:

When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in "exceptional", "relatively very rare" cases will the past misconduct be "so egregious that the mere fact of going forward in the light of it will be offensive" ( Tobiass , at para. 91 ). And at para. 56: Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation to possible remedies less drastic than a stay.

Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay. [ 85 ] In R. v. Zarinchang , 2010 ONCA 286 , the accused sought a stay because of a significant delay in having a bail hearing. A major factor in that case was institutional insufficiencies in resources.

The stay was not granted because the Court was satisfied that the insufficiency of resources was being addressed by the Government and that the problem was not likely to be repeated or be ongoing. [ 86 ] The Ontario Court of Appeal reviewed O'Connor and Tobiass and concluded at para. 57 : [57] From the above cases in the Supreme Court, the following principles emerge:

(1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied: (

i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and (ii) no other remedy is reasonably capable of removing that prejudice.

(3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider – the balancing of the interests in granting a stay against society's interest in having a trial on the merits. [ 87 ] In dealing with "systemic problems", the court held at paras. 59 and 60: [59] When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudice to the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused was subjected, continues.

In effect, a stay of the charge against an accused in the residual category of cases is the price the system pays to protect its integrity. [60] However, the "residual category" is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the

interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type ofbalancing exercise that is referred to in the third criterion.

It seems to us that a court will be required to look at the particulars of the case,the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of thecommunity in having the particular charges disposed of on the merits. [88] The Court noted at para. 61 that with the "residual category, the balancing exercise mandated in Tobiass should generally beconducted. [89] While no stay was granted, the Court affirmed the granting of a cost award to the accused, applying the test that costs areappropriate only when it can be shown that there was a "marked and unacceptable departure from the reasonable standards expected ofthe prosecution." (At para. 67, citing R. v. 974649 Ontario Inc., 2001 SCC 81). [90] Most recently, the Supreme Court considered the judicial stay remedy in R. v.

Bellusci, 2012 SCC 44. There, the case turnedon the standard of review. The Supreme Court concluded that while they (like the Ontario Court of Appeal) might have imposed a lesserpenalty on the Crown, the trial judge had "carefully and correctly considered all the relevant principles" (at para. 31). There, theunderlying breach of Mr. Bellusci's rights had been serious mistreatment at the hands of law enforcement officers. The trial judge'sconclusion had been that the accused's treatment would shock the public. [91] R. v. Robinson, 1999 ABCA 367, deals with costs as a s. 24(1) remedy for a s. 7 Charter breach.

While the majorityrecognized that there was a jurisdiction to do so, an award of costs required some degree of misconduct or an unacceptable degree ofnegligence on the part of the prosecutor (at para. 39). At para. 40, the majority noted that costs should not be routinely awarded. [92] More recently, in R. v. Griffin, 2011 ABCA 197, the Court held that the proper test was whether there were "circumstanceswhich are rare, unique, exceptional or never-to-occur again" (at para. 30). In R. v.

Caron, 2007 ABQB 262, Marceau J. described the testfor costs as being “some misconduct, or a marked departure from the reasonable standards expected of the prosecution” (at para 68). [93] Mr. Whitebear notes that R. v. SEL, 2012 ABQB 377 reviewed the Alberta authorities on such costs, and there, Hillier J.considered thrown away costs incurred because breaches of disclosure obligations could be characterized as damages, available under s.24(1) of the Charter as a remedy for a Charter breach.

He recognized the need to avoid Charter rights being "whittled away byattrition." [94] The Crown relies on many of the same authorities in support of their denial of any Charter breach and the inappropriatenessof a judicial stay, together with several additional cases. [95] R. v. Parsons, 1992 CarswellNfld 9 (C.A.), is cited relating to the conflict issue. There, referring to R. v. Robillard, (ON CA), 1986 CarswellOnt 1032 (C.A.), defence counsel sought to cross-examine the accused's father, who had been aclient in relation to a spousal support issue involving the victim, his late wife and the accused's mother.

He had signed a waiver ofprivilege in favour of the lawyer in connection with the intended cross-examination. Despite the appearance of conflict, because of thewaiver and recognition of the accused's right to his choice of counsel, the Court refused to disqualify the lawyer on the Crown's motion. [96] In R. v. Robillard, the accused's counsel had previously acted for a Crown witness. On the application of the Crown, thelawyer was disqualified.

While a waiver of privilege had been obtained, the Court recognized that there was still a public interest concernand the need for public confidence in the administration of justice. [97] At paragraph 17, however, the Court noted that "this does not mean that counsel who has represented a Crown witness in thepast would necessarily, in all situations, be in a position of conflict of interest in cross-examining the witness at a later date. Whether ornot counsel would be precluded from continuing to act would depend on the particular facts of the case." [98] In R. v.

Polo, 2005 ABQB 250, Clackson J. considered a defence application for a stay resulting from alleged prosecutorialmisconduct. The misconduct arose out of concerns that a police informant had met with the accused and his lawyer, and that the accusedhad made damning admissions. The admissions were made on January 8, 2002 but not disclosed until November, 2002 but the lawyer

did not withdraw until he was ordered to do so in June, 2004. Clackson J. found that it was clear that the lawyer might have to testifyonce disclosure of the conversation and the circumstances was made. The failure of the lawyer to withdraw caused delays. [99] The Crown admitted that some of the delay was its responsibility because it had not made prompt disclosure of theadmissions.

There was also an issue over disclosure of some documents, which the Crown claimed solicitor-client privilege over. [100] His analysis at paras. 22 and 23 is germane: [22] In my view, the language used by both Major, J. and Ritter, J. is so strong that if there is an exception for prosecutorial misconductthat misconduct must be something that fundamentally deprives the accused of his ability to adequately defend himself. It would not beenough that an accused has suffered some disadvantage, slight, impropriety or loss opportunity.

Rather, it seems to me that the abusewould have to strike at the very notion of the presumption of innocence. The abuse must be such as to create a real risk of wrongfulconviction. For example if the police planted evidence or coerced a statement implicating the accused, either of which might lead to awrongful conviction, then that may be the kind of misconduct which would justify a finding that the process has been so badly abusedthat a stay of proceedings is the only alternative.

However, even in those starkly offensive circumstances, the McClure threshold and thestages of the test promulgated by Major, J. in that decision must be satisfied before the solicitor-client privilege which may attach to thecommunications relating to the misconduct must be set aside. [23] The alleged abuse in this case does not have that kind of potential. The accused here argues that the Crown prosecutor ought to havemoved to have the accused's lawyer removed from the record.

He argues that this should have been done before the preliminary inquiry.He argues that because that was not done, his then counsel did not cross-examine the Crown's key witness at the preliminary inquiry onthe alleged conversations which occurred in that counsel's presence. He argues that he has lost his ability to make full answer in defencebecause he might have avoided committal for trial and he has lost his ability to cross-examine the key witness without fear of prejudiceto his trial strategy. In my view, that is not enough.

It is obvious that at its highest, none of the accused's complaints suggest a potentialfor wrongful conviction. In my view, if these circumstances constitute prosecutorial misconduct, they are not sufficient to constitute thekind of abuse which I believe is necessary to set aside solicitor-client privilege. [101] In R. v. Dias, 2010 ABCA 382, the Court of Appeal considered whether a stay might be granted in circumstances that did notimpact on the accused's right to a fair trial.

At para. 36, it held: [36] There is a residual rare category of Charter breach without impaired trial: a high degree of unfairness or vexatiousness in thecircumstances in which a prosecution is conducted, contravening fundamental notions of justice and undermining the integrity of thejudicial process. See L'Heureux-Dubé J. in R. v. O'Connor, supra (para. 73); R. v. Power, (SCC), [1994] 1 S.C.R. 601,617, 165 N.R. 241; cf. R. v. La, (SCC), [1997] 2 S.C.R. 680, 200 A.R. 81.

The prosecutor's oversight or poor judgmenthere for four months is so far from such a situation, that invoking it would demean and trivialize the Charter. Argument [102] With this background in place, Mr. Engel argues on behalf of Mr. Whitebear that steps should have been taken to addresspotential conflict issues as soon as Mr. Cymbaluk got on the record for Mr. Whitebear at the end of March, 2011. He was alreadyrepresenting T.T. in the youth court proceedings. Those were being handled for the Crown by a prosecutor other than Mr. Laluk. Thoseproceedings were resolved by a guilty plea on April 20, before Mr.

Whitebear's election and plea on April 25. [103] While recognizing that much of the responsibility rests with defence counsel, Mr. Whitebear argues that the Crown and theCourt's roles in this should be met with denunciation and that a stay of proceedings is the only way the importance of dealing effectivelywith conflicts will be brought home to the Crown. [104] Mr. Engel says that unless a stay is granted here, there will have been a breach of Mr. Whitebear's rights with no effectiveremedy.

[ 105 ] Ms. Doyle for the Crown argues that there has been no breach of Mr. Whitebear's rights by the Crown or the Court, such that granting any remedy would be inappropriate. She points out that only Mr. Cymbaluk knows the nature of the conflict, and it has not been proven by Mr. Whitebear that Mr. Cymbaluk had any confidential information from T.T. to begin with. [ 106 ] I will summarize and paraphrase (to some extent) Mr. Engel's arguments: 1. It should have been clear from the outset that Mr. Cymbaluk was in a conflict acting for T.T. and Mr. Whitebear; 2.

Legal Aid should not have appointed him to act for both; 3. The Crown office in Wetaskiwin is fixed with knowledge of who is acting for whom; 4. The Crown office in Wetaskiwin should have taken prompt steps to have Mr. Cymbaluk disqualified in acting for Mr. Whitebear; 5. At the case management conference on July 11, 2011, Mr. Clark and Mr. Laluk should have insisted, and ACJ Skinner should have ordered, Mr. Cymbaluk to immediately get off the file; 6. The Crown's inaction in taking prompt steps to remove Mr.

Cymbaluk before July 11, not insisting on July 11 that he get off the record immediately, and not following up after July 11 was prosecutorial misconduct, and a violation of Mr. Whitebear's s. 7 and 11(

b) Charter rights, constituting an abuse of process; 7. ACJ Skinner violated Mr. Whitebear's s. 7 and 11(

b) Charter rights by not immediately ordering Mr. Cymbaluk off the file and by not following through with him after July 11; 8. As a result of these breaches, it was foreseeable that there would be a delay in the trial; 9. Mr. Whitebear has been seriously prejudiced by the delay, including being incarcerated at the Edmonton Remand Centre in conditions that have been described unfavourable in Trang and Walters and other cases; and 10. While trial fairness is not at play here, the only appropriate remedies are to stay the proceedings against Mr.

Whitebear and order the Crown to pay his costs because: a. there have been violations of Mr. Whitebear's Charter rights; b. his rights have been violated not only by the Crown but by the Provincial Court; c. Mr. Whitebear has suffered serious prejudice which cannot otherwise be remedied; d. From Mr. Laluk's admission to Ms. Trach, the type of conflict engaged in this case are common in Wetaskiwin, and a stay is necessary to prevent future misconduct or inaction by the Crown and Provincial Court; e.

The Charter breaches here should be described as an abuse of process and characterized as serious misconduct by the Crown;

f. This is one of those unique circumstances described in the cases as warranting an award of costs against the Crown, either as costs or Charter damages. Analysis 1. It should have been clear from the outset that Mr. Cymbaluk was in a conflict acting for T.T. and Mr. Whitebear [ 107 ] There is no doubt that binding precedent holds that recognizing and dealing with conflicts in criminal matters is a shared responsibility among counsel for the Crown, counsel for the accused, and the Court.

Potential or perceived conflict issues must be brought forward at the earliest convenience so that they can be effectively dealt with to prevent delays in the process. Conflicts may result in the disqualification of counsel for the accused, Crown counsel or the trial judge. The source of conflicts is generally relationship-based and sometimes knowledge- or information-based. [ 108 ] A participant in the judicial process may be a friend or acquaintance or associate of the accused, the complainant, or a witness.

There is certainly an onus on any of the participants in the judicial process to identify any personal conflicts known to them. Among defence counsel, the prosecutor and the judge, only the individual likely knows who his or her relatives, friends and associates are. One participant does not likely know of the conflicts of others. They may have a reasonable idea as to conflicts through other family members, not affecting them personally but affecting a spouse or child or parent such that their objectivity or independence may be called into question.

Sometimes, however, conflicts do not become apparent until shortly before trial, or even during trial when conflicts with witnesses appear. [ 109 ] Knowledge of the conflicts of others is even less certain. There may be suspicions, and if there are reasonable suspicions, they should be voiced at the earliest possible opportunity. [ 110 ] But disclosure takes some time, and conflicts may become apparent through disclosure. Everyone involved should know fairly quickly whether they have a conflict with the accused and the complainant or victim.

However, the prosecutor may not know who all of his or her witnesses will be at trial until shortly before trial. Defence may not know who its witnesses will be until the eve of trial or the close of the Crown's case. Sometimes witnesses change during the trial itself as a result of unforseen events or testimony. [ 111 ] There is no early identification of witnesses such that Crown, defence and the judge will have a reasonable idea as to conflicts with witnesses at an early stage of the proceedings. [ 112 ] There are also no standard checks for conflicts in court.

While the March, 2011 practice directive requires conflicts to be discussed early in the proceedings, the practice directive relates to defence counsel acting for more than one accused in the same prosecution. There, the potential conflict is known to everyone in the courtroom. There is an obligation under the practice directive to address the issue. However, the practice directive does not give direction as to how to deal with the conflict. [ 113 ] Defence counsel are not barred from acting for more than one accused in the same prosecution.

If both parties provide an informed consent, and in the case of Alberta Provincial Court consent in writing after receiving independent legal advice, such a practice may be permitted. That is subject to the overriding jurisdiction of the Court to disqualify counsel if it is determined necessary for the due administration of justice. [ 114 ] The root of conflicts in the context of multiple representations is the requirement of disclosure of all information to each client, and the lawyer's duty to act in the best interests of his client.

If there are two clients with different interests, pursuing one of those interests for one of the clients may not be in the best interests of the other client. [ 115 ] Cut-throat defences immediately come to mind, as do decisions to testify. One defendant may want to testify; the other may

not. One may incriminate the other if he or she testifies. It is inconceivable that a lawyer could act for both in such circumstances. [ 116 ] But if the instructions are identical, and the two clients are joined at the hip making common defence, there may be no conflict and no reason for the Court to overrule the decision of the clients to have common representation.

The right to choice of counsel is an important one and should not be lightly interfered with. [ 117 ] Where there are different proceedings involving the two clients, competing instructions may be less problematic. [ 118 ] Here, we do not know why Mr. Cymbaluk concluded that he had a conflict which required him to withdraw. He obviously felt that he could enter into plea bargaining with the Crown without betraying his obligations to T.T. or compromising Mr. Whitebear's interests. By the time of the case management conference, T.T. had pled guilty and had been sentenced. It is likely that Mr.

Cymbaluk felt that he could not effectively cross-examine T.T. at trial. [ 119 ] The reason for that is unclear, and in my view would rarely be made known even on a conflict hearing. To get to the bottom of that would require an examination of information provided to Mr. Cymbaluk by T.T., information provided to him by Mr. Whitebear, and an understanding of the intended defence and strategies on behalf of Mr. Whitebear.

Allegations of conflict do not allow the Courts or the Crown to pierce the solicitor-client privilege attaching to the communications between the clients and their lawyer, or the work product privilege attaching to defence strategy and preparation. [ 120 ] It is well and good to talk about the shared obligations of Crown, defence and the Court with respect to conflicts. But what are the obligations? [ 121 ] Surely, the first obligation on each is to raise any conflict affecting the individual, of which he is aware.

There is an obligation on the part of all participants to address their minds to conflicts, acting honestly and in good faith. That obligation is not necessarily to disclose the potential for a conflict to the other participants (prosecutor and docket court judge); it may be satisfied by seeking third party advice from colleagues or from the Law Society's Practice Advisor, for example. Any issue needs to be considered, and dealt with promptly. Sometimes that means that it must be raised with the other participants.

Disagreements can be resolved by a conflict hearing of some sort. [ 122 ] There is an ongoing obligation to continue to be mindful of the possibility of conflicts, and to deal with any issues as they arise. [ 123 ] Secondly, there is an obligation to consider, at the earliest opportunity, conflicts believed to affect any of the other participants. Again, in the first instance, consultations with colleagues or the Practice Advisor may suffice. Or the possibility may have to be raised with the party believed to have a conflict. The party may agree, or not.

If there is disagreement, the Court may have to be involved and ultimately, a conflict hearing may have to be scheduled. [ 124 ] This is also an ongoing obligation. It is improper to wait for a convenient time to raise the spectre of someone else's conflict. Conflicts are not intended to be used as procedural or strategic weapons. No one can lie in the weeds waiting for a good opportunity to try and have someone taken off the case. [ 125 ] In this case, there is no information to suggest that the prosecutor, Mr. Laluk, knew that Mr. Cymbaluk was also acting for T.T. before the case management conference.

There is no information that Mr. Clark did either. I am not prepared to impute knowledge to Mr. Laluk or Mr. Clark because they both work out of the Wetaskiwin office, or that Mr. Clark may have been both Mr. Laluk's and Mr. Silliker's (the prosecutor responsible for T.T.'s case in Youth Court) superior. [ 126 ] It is not up to the Crown or the Court to monitor defence counsel's potential conflicts. Records are not (to my knowledge) kept on what clients defence counsel are acting for or who they have acted for in the past. No records are kept linking defence counsel to witnesses.

If such records were kept, there would likely be serious privacy issues, and the prospect of that appears to be somewhat "Big Brother"-like.

2. Legal Aid should not have appointed Mr. Cymbaluk to act for both Mr. Whitebear and T.T [127] I have no information as to what was represented to Legal Aid by T.T. or Mr. Whitebear. I have no information as to theselection process for counsel in this case. I do not know, for example, if Legal Aid was aware that T.T.'s and Mr. Whitebear's cases wererelated, or whether they may be required to testify against each other. In the absence of evidence, I cannot presume that Legal Aid wasaware or had any reason to suspect that there was a conflict. If the same intake worker dealt with both T.T. and Mr.

Whitebear, it mayhave been apparent that they were talking about the same incident. But I do not know that, and cannot presume that. I would not presumethat what one worker knows is known or imputed to all other workers in the same office. [128] Even if Legal Aid has some responsibility in the matter, which is by no means clear or certain, I was not provided anyauthority indicating that Legal Aid should be treated as an emanation of the Crown for the purposes of Charter duties and breaches. I amaware that there have been suggestions of that; I am not aware that the issue has been decided one way or the other.

R. v. Koruz, 1992ABCA 144 , 1992 A.J. No. 490 (C.A.) left the issue open. Because I have not found that Legal Aid knew about the conflict orpotential conflict, I cannot conclude that it did anything wrong. Discussions about their Charter obligations (if any) are thus moot, andshould not be decided in this case. 3. The Crown office in Wetaskiwin is fixed with knowledge of who is acting for whom [129] There is no evidence before me that Mr. Laluk was aware of Mr. Cymbaluk's representation of T.T. until the casemanagement conference on July 11. While Mr.

Clark was the chief Crown prosecutor in Wetaskiwin, there is no evidence before me asto any actual knowledge on his part that Mr. Cymbaluk was representing T.T. until July 11. [130] Mr. Engel argues that Wetaskiwin is a small office, and that knowledge should be imputed to Mr. Clark and to Mr. Laluk.While I do not rule out the possibility that knowledge might be imputed within the Crown's office in appropriate circumstances, I amdoubtful that it would ever be appropriate to impute knowledge (absent willful blindness or misconduct) to someone whose personalactions are being called into question.

This is not an issue about Crown conflicts, where knowledge might be imputed within a Crownoffice, as is done with law firms following MacDonald v. Martin Estate. [131] This is not an issue about Crown policy or general practices; it is a specific attack on Mr. Clark's and Mr.

Laluk's conduct.This is not an appropriate case to impute knowledge. [132] While the circumstances surrounding these offences are concerning, that does not mean that every prosecutor is deemed toknow the details as to the names of the people involved and who may be acting for them. [133] I see no duty on the part of the Crown to keep track of who is acting or who has acted for whom, so that they can raise conflictinterests in future cases. Frankly, that sounds like something with more potential for harm than good. These were separate prosecutions,handled by separate prosecutors. They were in different courts.

There was on the evidence no involvement by Mr. Clark and Mr. Lalukin T.T.'s matter; there was no involvement by Mr. Silliker, the T.T. prosecutor, in Mr. Whitebear's matter. 4. The Crown office in Wetaskiwin should have taken prompt steps to have Mr. Cymbaluk disqualified in acting for Mr.Whitebear [134] At the early stages of a prosecution, before election and plea, counsel are just getting acquainted with their clients andlearning of the facts.

It is early to begin to obtain informed instructions. [135] It would, in my view, be impractical and largely ineffective for the docket court judge to be required to canvas of defence

[ 135 ] It would, in my view, be impractical and largely ineffective for the docket court judge to be required to canvas of defence counsel at the first appearance and before disclosure as to whether he or she has any potential conflicts in the case. If the Court is actually aware of a potential conflict because of past appearances the Court recalls, or if the Crown is actually aware of potential conflicts because of past dealings, they should of course be raised at the earliest opportunity.

But they can also be raised informally in the first instance between Crown and defence, and not brought up in court until Crown and defence have had a conversation. I would not want to discourage any friendly and candid exchanges between Crown and defence. [ 136 ] Provincial Court in Wetaskiwin has adopted a case management process. There is nothing in the evidence before me to suggest that Mr. Clark or Mr. Laluk should have been aware of potential conflicts on Mr. Cymbaluk's part until the case management conference on July 11.

To impute knowledge before then imposes a much higher standard on the Crown and the Court than the law requires. While there is a duty to react to known conflicts, I do not see the Crown or the Court having a duty to ferret out conflicts. In most cases, the Crown and the Court should be able to rely on defence counsel to adhere to his or her ethical standards relating to conflicts. [ 137 ] Indeed, many conflicts are resolved by obtaining the informed consent of the affected parties. Discussions between counsel and clients are inherently privileged.

A practice directive cannot interfere with solicitor and client privilege, so while a prosecutor or a judge might point out a potential conflict to defence counsel and inquire if it has been canvassed with the affected parties and written waivers obtained, except as set out in the Practice Directive, I am not sure that there is jurisdiction to require an answer to the inquiry. [ 138 ] Impasses are resolved by a conflict hearing, presumably in public and with the accused present. [ 139 ] There is no doubt that addressing conflicts or potential conflicts of interest in a criminal matter is a shared responsibility of defence counsel, the Crown and the Court itself.

Primary responsibility must be with defence counsel, as defence counsel is the one with the best knowledge as to conflicts. Only defence counsel may know of a conflict with potential witnesses. Only defence counsel will know of a conflict between co-accused at least until defence counsel gets on the record.

And only defence counsel will know whether he or she has obtained an informed consent from all affected parties regarding continuing to act in the face of the conflict. [ 140 ] Provincial Court, through the Chief Judge, published a practice directive on March 16, 2011 dealing with conflicts when counsel act for more than one defendant in the same prosecution. [ 141 ] While Chief Judge Vickery's practice directive is sensible and laudable, it is specifically addressed to joint representation of multiple defendants in the same prosecution. That will be obvious to Crown and the Court when it occurs.

The practice directive does not deal with representation of other accused in other prosecutions, or of representation, past or present, of witnesses. [ 142 ] In any event, the practice directive is not engaged here. While there are similarities, the practice directive is not a rule of law. It is a useful administrative guideline. But if it is not followed, that does not of itself mean that anyone's rights have been violated. [ 143 ] Nevertheless, while not directly on point because there were separate prosecutions of Mr. Whitebear and T.T., the sentiments are applicable to all cases.

Conflicts and potential conflicts need identification and prompt and careful management to avoid prejudice and delay. [ 144 ] In the absence of knowledge by Mr. Clark or Mr. Laluk as to the possibility or likelihood of conflict on Mr. Cymbaluk's part before the case management conference on July 11, I cannot find any fault with them, and certainly no misconduct or Charter breaches in this matter, before July 11. This is not a case where Mr. Clark or Mr. Laluk sat on information or delayed bringing a matter forward.

There is certainly no evidence to suggest that they were waiting in the weeds to raise this issue to get Mr. Cymbaluk off the matter shortly before trial. 5. At the case management conference on July 11, 2011, Mr. Clark and Mr. Laluk should have insisted, and ACJ Skinner should have ordered, Mr. Cymbaluk to immediately get off the file [ 145 ] The only evidence as to what happened at the case management conference is found in the memo of July 11. It is unknown

who first raised the issue. Conflicts are on the standard template memo, so whether ACJ Skinner asked about conflicts, or Mr. Cymbaluk raised the issue, or one of the prosecutors raised it is unclear. [ 146 ] All that is known is that the issue was raised and the resolution (whether by Mr. Cymbaluk volunteering, ACJ Skinner ordering, or by consensus) was that Mr. Cymbaluk would have to withdraw unless the matter was resolved before trial, and if the matter was to go to trial, there would have to be another case management conference. [ 147 ] At the outset, once the conflict was raised, it was dealt with.

To suggest that the failure of the Crown to insist on immediate disqualification is misconduct or an abuse of Mr. Whitebear's Charter rights, is unsupported here, because: a. There is no evidence as to what position the Crown took; b. There is no evidence as to how the result came about; c. There is no evidence as to precisely what the conflict was or what the Crown or Court were told about it; d. There is nothing inherently wrong with the result, assuming the understanding was that a resolution offer would be made promptly and dealt with promptly, and if it was not accepted, Mr.

Cymbaluk would get off the record and a further case management conference would be held. All of that might have been accomplished without any delay in the trial or resolution and without constituting a conflict of interest on Mr. Cymbaluk's part; e. There is no evidence as to what Mr. Cymbaluk represented to ACJ Skinner, Mr. Clark and Mr. Laluk concerning the likelihood of resolution; f. If there was an order by ACJ Skinner, it is doubtful that an order can amount to a Charter breach; an order may be made in error, or it may be contrary to a proper

interpretation of the Charter , but a judicial order is not by itself an abuse of process, a Charter breach or actionable wrong; and g. This process would be a collateral attack on a court order, which is improper. [ 148 ] Essentially, not enough is known about the case management conference to make any reasonable determination as to what happened there and why. There is no sufficient evidentiary base to make any conclusions about correctness, let alone Charter breaches even if such could arise out of a judicial process. 6. The Crown's inaction in taking prompt steps to remove Mr.

Cymbaluk before July 11, not insisting on July 11 that he get off the record immediately, and not following up after July 11 was prosecutorial misconduct, and a violation of Mr. Whitebear's s. 7 and 11(

b) Charter rights, constituting an abuse of process [ 149 ] It is true that Mr. Whitebear's trial has been adjourned from September 19, 2011 to November 21, 2012. That is an unreasonable period which must be justified in some fashion to avoid s. 11(

b) considerations. But if the collective error on the part of the defence, Crown and the Court on July 11, 2011 was to allow Mr. Cymbaluk to continue and not withdraw immediately, it is likely that the trial would have been adjourned anyway until at least November. So the consequence of that failure would be a shared two-month delay. [ 150 ] If the collective error was to fail to monitor Mr. Cymbaluk's progress in resolving the matter and convening another pre-trial

conference, it might be reasonable to infer that a further pretrial conference might have been a month before trial. If an adjournment ofthe trial was required then, as is likely because nothing actually changed over that period, the new trial date might have been set in earlyto mid December. The consequence of that failure would be a shared one-month delay. [151] Even assuming apportionment of the delay to the Crown and the Court, delays of one or two months would still lead to trialwithin 10 months from the offence date.

That does not suggest delay which might be characterized unreasonable according to R. v.Askov, (SCC), [1990] 2 S.C.R. 1199. [152] I, of course, do not want to minimize the consequences of delay; Mr. Whitebear is presumed innocent and was incarcerated inthe gang unit of the Edmonton Remand Centre. He spent most of his time double-bunked, some of his time triple-bunked, and some timein administrative and disciplinary segregation where 23 hours per day are spent in a small cell.

Nevertheless, scheduling is a balance offinding available court time and matching it with the schedules of often-busy defence counsel, Crown counsel and witnesses. 7. ACJ Skinner violated Mr. Whitebear's s. 7 and 11(

b) Charter rights by not immediately ordering Mr. Cymbaluk off the fileand by not following through with him after July 11 [153] What was clearly missing here was follow-up and a backup plan. Mr. Cymbaluk knew that he could not run the trial for Mr.Whitebear. He obviously made a judgment call that he was in a position to try to negotiate a plea deal for Mr. Whitebear. That wasknown to Crown and the Court by July 11. What was not known on July 11 is when a decision might be made on any plea deal offeredby the Crown, or whether it might be accepted. The Crown was given until July 14 to make an offer of resolution.

I assume that one wasmade within that time. Mr. Whitebear testified that as soon as he was told about the offer, he rejected it. His evidence was that he hadthat conversation with Mr. Cymbaluk sometime in the summer, but he could not point out a date. [154] In the absence of evidence, it would be reasonable for me to infer that the Crown did what it was directed to do and provided aresolution proposal to Mr. Cymbaluk by July 14. I infer that Mr. Cymbaluk presented the proposal to Mr. Whitebear within a reasonabletime and it was rejected.

That process should have been complete by the end of July at the latest as the trial date of September 19 waslooming. [155] From that point on, it is difficult to see how Mr. Cymbaluk could continue to act for Mr. Whitebear. He should already havehad a backup plan in place – someone else to run the trial if: a. Mr. Whitebear didn't accept the plea deal offered; or b. A better deal couldn't be negotiated; or c. T.T. showed up for trial. [156] Mr. Whitebear was in custody during this period, and because of the collapse proceedings, and the position Ms.

Trach (hislawyer for that matter) was taking that the trial had to be dealt with first), he was going to remain in jail without bail being spoken to onthe new charges until the trial. That was a defence strategy which is not unreasonable and is entitled to deference. [157] It was also a legitimate defence strategy to see if T.T. showed up for trial. With him, conviction may have been more likely;without him, acquittal a greater possibility. Again, deference is owed to such a strategy. [158] Nevertheless, what was missing, even if Mr. Cymbaluk had Mr. Whitebear's informed consent to acting for both him and

T.T., was a backup plan for the trial in the event Mr. Cymbaluk could not act. The trial needed to go ahead; someone needed to properly prepare for it and Mr. Cymbaluk needed to be in a position where if he and Mr. Whitebear considered him able to do the trial, he was ready to do it, or if he could not do the trial (even at the last moment if T.T. showed up), someone else was able to immediately step in and conduct the trial or at least the cross-examination of T.T. [ 159 ] I can only presume from the telephone discussion Mr. Whitebear says he had with Mr.

Cymbaluk several days before the trial that none of that took place. Mr. Cymbaluk was not ready to do the trial and no one else was ready to step in. An adjournment was inevitable. [ 160 ] Indeed, an adjournment may well have been inevitable even if Mr. Cymbaluk had been ordered to get off the file on July 11. It was summer and many counsel take holidays during July and August. Legal Aid needed to be involved in the appointment of counsel. It is reasonable to think that new counsel would have been appointed in early August, at the soonest. [ 161 ] When new counsel was appointed for Mr.

Whitebear after September 19, it was Ms. Trach who was appointed. She already had familiarity with the matter because of her role as counsel on the collapse hearing. Once she began to review the case more thoroughly, she considered that there were significant disclosure issues and she wrote Mr. Laluk on December 21, 2011 with a lengthy list of disclosure items. These were things that had not been disclosed to Mr.

Cymbaluk. [ 162 ] One might presume that counsel would not want to proceed to trial on a major matter such as this, where the client faced a minimum mandatory sentence of five years on one of the offences if convicted, as well as the potential collapse of the community supervision portion of his earlier sentence, without first obtaining full disclosure. [ 163 ] There is nothing in Ms. Trach's request that appears on its face to be unreasonable, and there would have had to be time built into any

schedule for disclosure issues. [ 164 ] Ms. Trach was not available to do the trial on September 19. That had previously been canvassed with her when Mr. Whitebear had indicated he wanted her to do both the trial and the collapse hearing, but Legal Aid had rejected that. Instead, it was Ms. Trach's expectation that Mr. Cymbaluk was going to represent Mr. Whitebear at the trial on September 19 and the collapse hearing on September 20. So she was not prepared for the collapse hearing and was surprised to hear from Mr. Laluk on September 19 as she thought Mr. Cymbaluk was looking after both aspects.

She was unaware of any conflict on Mr. Cymbaluk's part until told about it by Mr. Laluk on September 19. [ 165 ] On a balance of probabilities, what is the likelihood that new counsel appointed on or after August 1 st would have been able and willing to get up to speed on the file, get instructions from Mr. Whitebear, deal successfully with all disclosure issues and prepare for a September 19 th trial? [ 166 ] Mr. Engel submits that this is not a complicated matter.

Indeed, it appears that the trial will likely turn on the credibility of lay witnesses as to what happened and who was involved in the events of March 4, 2011. He argues that the disclosure issues could have been dealt with quickly, and new counsel might have essentially "dropped everything" and made him or herself ready for trial. [ 167 ] More realistically, however, new counsel would have sought an adjournment for some reasonable period to be able to get ready for an important trial in an orderly and not rushed fashion. [ 168 ] Thus I am not satisfied that the trial would have continued and not been adjourned.

When the trial was eventually rescheduled on October 25 after the adjournment on September 19 (after a number of appearances between those dates when the matter was simply put over), January 13 was available for the stay application and April 13 for the trial. [ 169 ] Had new counsel been appointed in early August and immediately recognized that an adjournment of the September 19 th trial date was necessary, and using the same time frames as actually occurred when dates were set in October, it is likely that the trial could have been rescheduled for sometime in the latter part of November.

But for the stay application, the matter could likely have been set for

trial on January 13, so there might have been a two-month delay had Mr. Cymbaluk been removed as counsel on July 11. [ 170 ] As the underlying offence took place in early March, getting the matter to trial before the end of November, a period of less than nine months, does not seem unreasonable. [ 171 ] Ultimately, I find no fault with the case management conference on July 11. The decision and directions there might have been different, but a conflict was raised, and dealt with.

One can argue whether the conflict should have been dealt with differently, but a sound decision on that would have to be based on a knowledge of why Mr. Cymbaluk considered he had a conflict. That in turn would likely have involved disclosure of privileged information, which has serious ethical considerations surrounding any such disclosure. The decision cannot be criticized without a full knowledge of the facts, which are not known. [ 172 ] It may well be that Mr. Cymbaluk could have, without prejudicing T.T. or Mr. Whitebear in any way, arranged a plea deal for Mr.

Whitebear and spoken to sentence on his behalf. I do not have enough information one way or the other to determine that issue. [ 173 ] What can be criticized is the absence of follow-up after the case management conference. There is no indication that either the Court or the Crown followed up with Mr.

Cymbaluk to find out whether he had resolved the conflict in some way, such as having independent counsel on standby to cross-examine T.T. at trial, or conduct the whole trial if no plea deal could be made. [ 174 ] In a perfect world, ACJ Skinner might have set a date for a further case management conference, recognizing on July 11 that a further conference would be necessary if the matter was going to trial. That might have reasonably been set for three or four weeks hence. [ 175 ] Alternatively, the Crown might have followed up with Mr. Cymbaluk as to how the conflict was going to be resolved.

In the absence of a satisfactory answer, the Crown might have scheduled a further conference with ACJ Skinner. But when would that have happened? In my assessment, it is likely in either case that the trial date itself would have been used for a follow-up conference. [ 176 ] In any event, I decline to find that either the Court or the Crown breached any duty it owed at law or under the Charter to Mr. Whitebear to address Mr. Cymbaluk's conflict issue before September 19, the trial date. There is no evidence to suggest that Mr. Laluk knew, before September 19, that the trial was not likely to proceed.

He may have been under the impression that there would be a plea deal, but it also appears that he was prepared to run the trial on September 19 if need be. [ 177 ] The roughly 10 weeks between the case management conference and the trial was not such a lengthy period that the abse

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