R v. Young, 2015 ABQB 784

Court of Queen ’ s Bench of Alberta Citation: R v. Young, 2015 ABQB 784 Date: 20151209 Docket: 140294984S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Mackenzie Patrick Young Appellant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Counsel for the Appellant, Mackenzie Patrick Young, applies to be relieved of an undertaking she gave to Mr. Young’s trial counsel, Miranda Moore, in connection with this

summary conviction appeal. Mr. Young applies for an order pursuant to Criminal Code s. 683(1)(

b) requiring Ms. Moore to attend and be examined in connection with this appeal. [ 2 ] Mr. Young was convicted on September 2, 2104, in Provincial Court of uttering a threat, assaulting a peace officer, and common assault. On January 5, 2015, he was sentenced to 60 days to be served intermittently plus nine months’ probation. He filed an appeal of the convictions and the sentence on February 4, 2015. [ 3 ] One of Mr. Young’s grounds of appeal is that his trial counsel provided ineffective assistance to him at the trial of this matter.

[ 4 ] On March 4, 2015, Mr. Young’s appeal counsel, Ms. Hart-Dowhun, wrote to Ms. Moore listing eight aspects of the trial which she suggested provided a basis for the proposed ground of appeal – ineffective assistance from counsel. She asked for Ms. Moore’s comments on the points listed. She asked Ms. Moore to agree to swear an affidavit with respect to her representation of Mr. Young at trial for use on the appeal. [ 5 ] On April 2, 2015, the Crown and Ms. Hart-Dowhun attended before Macklin J. for the purpose of confirming on the record that Mr. Young waived solicitor-client privilege in relation to Ms.

Moore’s representation of him at trial. Macklin J. examined Mr. Young and satisfied himself that Mr. Young understood his rights concerning solicitor-client privilege and wished to waive those rights in respect of Ms. Moore’s representation of him at trial, for the purposes of the appeal. Ms. Hart-Dowhun advised Macklin J. that she was awaiting information from Ms. Moore. Macklin J. observed that if that information was not forthcoming, Ms. Hart-Dowhun might consider a further application to the court to require Ms. Moore to provide the information Mr. Young requested.

Dates were set for the filing of appeal materials, for a readiness hearing and for the hearing of the appeal itself on June 18, 2015. [ 6 ] On April 10, 2015, Ms. Hart-Dowhun again wrote to Ms. Moore and advised that Mr. Young had waived solicitor-client privilege before Macklin J. In this communication, she repeated the eight specific points listed in her March 4 communication and added two further points which she requested Ms. Moore to address in relation to Ms. Moore’s representation of Mr. Young at trial. She requested that Ms. Moore respond quickly as Ms.

Hart-Dowhun’s court filing deadline was May 15, 2015. [ 7 ] Ms. Moore responded just over an hour after Ms. Hart-Dowhun sent the April 10 communication. She provided comments on the points Ms. Hart-Dowhun had listed. She prefaced her comments with the following note: PLEASE NOTE: THIS IS MY PRELIMINARY RESPONSE BUT I MAY HAVE ADVICE FROM MY MENTOR AND ASSOCIATE ON THIS THAT WILL CHANGE MY RESPONSES SOMEWHAT. [ 8 ] Sometime between April 13 and May 7, Ms. Hart-Dowhun verbally promised Ms. Moore that she would not use the preliminary responses in favour of the final responses which Ms.

Moore said would be forthcoming. [ 9 ] On May 6, Ms. Hart-Dowhun followed up with Ms. Moore requesting her final responses for use in the appellant’s appeal materials. Ms. Moore responded with a request that Ms. Hart-Dowhun provide a copy of the trial transcript to her. On May 7, Ms. Hart- Dowhun responded declining to incur the expense of obtaining the trial transcript for Ms. Moore. She said: As promised, I will not use your preliminary response.

However, if I do not receive your final response by 8:30 a.m. tomorrow morning, I will write to Justice Macklin with a copy to you and the Crown and request further direction on this matter. [ 10 ] On June 3, 2015, Ms. Moore provided her final responses to the list of points Mr. Hart-Dowhun had raised. Ms. Hart- Dowhun is of the view that the final responses are substantially different from the preliminary responses. Further, she is of the view that the final responses are in many respects in direct opposition to Mr. Young’s version of what occurred at trial. Ms. Hart-Dowhun included a copy of Ms.

Moore’s final responses in the Memorandum of Law she filed on Mr. Young’s behalf. [ 11 ] Ms. Hart-Dowhun wishes to examine Ms. Moore as to the differences between the preliminary and final responses and the differences between her responses and Mr. Young’s version of what occurred at trial. [Mr. Young has filed an affidavit in this appeal in which he sets out his version of what occurred at trial.] Ms. Hart-Dowhun applied before me first to be relieved of the undertaking she gave Ms. Moore not to use the preliminary responses and second to be allowed to examine Ms.

Moore as contemplated in CC s. 683(1) (b). [ 12 ] Ms. Hart-Dowhun’s application was originally made on July 20 but was adjourned for various reasons which are no longer of significance and was finally argued on November 26, 2015. [ 13 ] Ms. Moore has filed no evidence on this application. She has not disputed the accuracy of the evidence before me as to when the undertaking sought to be set aside was made, or that her preliminary and final responses are inconsistent. [ 14 ] Mr. Beresh appeared on Ms. Moore’s behalf to oppose both applications.

Relief from Solicitor’s Undertaking [ 15 ] “A lawyer must strictly and scrupulously fulfil any undertakings given . . .” Law Society of Alberta, Code of Professional Conduct ,

Chapter 4, Rule 4.01(7). The court will enforce an undertaking made by one of its officers. Witten, Vogel, Binder & Lyons v. Leung (1983) 148 D.L.R. (418) (Alta. Q.B.). [ 16 ] These principals are not without exceptions or limitations. [ 17 ] Mr. Beresh did not challenge the proposition implicit in this application that the court has authority to relieve a solicitor from an undertaking if the interests of justice require such relief.

The court clearly has that authority in the context of the implied undertaking by a solicitor conducting civil discovery or receiving Crown disclosure not to use the information obtained outside the litigation in which it has been provided. Bourgeois v. Bourgeois, 2004 ABQB 35 . [ 18 ] In determining whether to exercise that authority, the court should balance the interest protected or furthered by the undertaking against the “interests of pursuing truth and disposing correctly of [the] litigation.” St. Jean v.

Western Union Insurance Company , 2003 ABQB 928 at para. 21 . [ 19 ] In my view, that balance, in the case before me, favours relieving Ms. Hart-Dowhun of her undertaking. [ 20 ] First, I note that on the undisputed evidence before me, Ms. Moore did not ask Ms. Hart-Dowhun to promise that she would not use the initial responses before Ms. Moore sent Ms. Hart-Dowhun those responses. Ms. Moore sent the e-mail containing the initial

responses just over an hour after Ms. Hart-Dowhun made her April 10 request for a response. Ms. Moore’s e-mail contained the “PLEASE NOTE” qualification quoted previously but it did not impose any trust condition on Ms. Hart-Dowhun regarding the use of the responses. The evidence before me is that the promise not to use the responses was made no earlier than three days after Ms. Hart- Dowhun had received the responses. Ms. Moore did not provide the responses on the condition that they not be used. Whatever interest of Ms.

Moore’s the promise was intended to protect appears to have been an afterthought – not an interest of sufficient importance that Ms. Moore sought protection for it before giving her initial responses. [ 21 ] Second, I note that Ms. Moore is not a party to this appeal. The result of the appeal will have no effect on her legal rights. I accept that the determination of the appeal could impact Ms. Moore’s reputation as a criminal lawyer. However, every time a lawyer represents an accused person they are, to some extent, exposing their reputation to assessment. In my view, it serves no just purpose to shield Ms.

Moore from that practical reality. [ 22 ] On the other side of the balance, it is clear that there are significant differences between Ms. Moore’s and Mr. Young’s versions of what transpired at trial. Those differences appear at least on their face to be relevant to the ground of appeal Mr. Young seeks to advance. In my view, it is clearly in the interests of justice that the competing versions be judicially assessed in the context of this appeal. In my view, justice requires that Ms. Hart-Dowhun be relieved of her promise not to use Ms. Moore’s initial responses. Application to examine Ms.

Moore [ 23 ] Criminal Code s. 683(1)(

b) provides: For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, (

b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial, (

i) to attend and be examined before the court of appeal, or (ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose. [ 24 ] CC s. 683(1)(

b) applies to a

summary conviction appeal by virtue of CC s. 822 (1). [ 25 ] The fact that Ms. Moore would have been a compellable witness at the trial is not disputed. Section 683(1) can be invoked for the examination of an accused’s trial counsel when incompetence of counsel is a ground of appeal as was recognized in R v. Meer , 2015 ABCA 141 , para. 47 . [ 26 ] In my view, the same reasoning that supports relieving Ms. Hart-Dowhun from her promise to Ms. Moore, as discussed above, justifies granting the order for the examination of Ms. Moore which Mr. Young seeks.

It is in the interests of justice that the uncertainties that arise out of the two competing versions of what happened at trial be judicially resolved. Further Directions Required [ 27 ] There remain some practical issues which require resolution. I have not determined whether the examination of Ms. Moore should be before the judge who hears the appeal or whether some other arrangement as contemplated in s. 683(1)(b)(ii) should be ordered. It was suggested at the hearing of this application that the Crown may seek leave to examine Mr. Young on his affidavit.

The Crown reasonably did not participate in and was not present at this application. It may be that the most efficient procedure would to arrange enough time for the examination of both Ms. Moore and Mr. Young, if he is to be examined, before the judge assigned to hear the appeal on the day the appeal is to be heard. I propose to give directions on these points on December 14, 2015, the day to which this matter has been adjourned. Disposition [ 28 ] Ms. Hart-Dowhun’s application to be relieved of the undertaking she gave to Ms. Moore is granted. Mr. Young’s application for an order requiring Ms.

Moore to attend and be examined in this appeal is granted. Further directions will be given when both Crown Counsel and Appellant Counsel attend on December 14, 2015. Heard on August 10, September 10, and November 26, 2015. Dated at the City of Edmonton, Alberta this 9 th day of December, 2015.

B.R. Burrows J.C.Q.B.A. Appearances: James Mahon for the Crown Respondent Amanda Hart-Dowhun for the Appellant Brian Beresh for Miranda Moore, Interested Party