R v Lam, 2016 ABQB 206

Court of Queen ’ s Bench of Alberta Citation: R v Lam, 2016 ABQB 206 Date: 20160408 Docket: 130178791Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Stephen Lam and Alaina Louise Glasser Accused _______________________________________________________ Reasons for Decision of the Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ I ntroduction [ 1 ] The accused, Stephen Lam, is charged with drug trafficking offences. The Crown seeks advice and directions regarding a perceived conflict of interest in Mr.

Lam’s trial, scheduled to start June 20, 2016. [ 2 ] Mr. Lam retained Adam Karbani shortly after his arrest in February, 2013. Robert Davidson, Q.C. began acting for Mr. Lam in June, 2015. Both Mr. Karbani and Mr. Davidson remain counsel of record.

[3] Mr. Davidson, Mr. Rod Gregory, Mr. Mike Danyluik and Mr. Karbani are members of the firm of Davidson GregoryDanyluik. [4] The potential conflict relates to Det. Lewis and Cst. Toma, who are important Crown witnesses in the case against Mr. Lam.Det. Lewis was the Exhibit handler for exhibits seized pursuant to various warrants issued in the course of Mr. Lam’s investigation. Cst.Toma was the affiant in relation to warrants sworn in relation to his investigation. Mr.

Danyluik represented both officers betweenSeptember, 2014 and March, 2015 on separate police disciplinary matters. [5] The credibility and reliability of both officers’ evidence is an issue in Mr. Lam’s trial and both officers are subject to crossexamination by Mr. Davidson. [6] While the Crown does not suggest an actual conflict of interest exists, they argue a perceived conflict exists which maydisqualify Mr. Davidson and Mr. Karbani from continuing to act for Mr. Lam. Facts [7] The factual backdrop to this application is largely found in Mr. Davidson’s letter and Mr.

Danyluik’s “will-say” statement.The Crown admits to the factual content of these documents. [8] Mr. Danyluik acted for Det. Lewis between September, 2014 and January, 2015 regarding disciplinary charges under thePolice Service Regulation, Alta Reg 356/1990. It was alleged that Det. Lewis engaged in unlawful or unnecessary exercise of authority incarrying out his duties during an incident in 2014. [9] At Det. Lewis’ hearing, Mr. Danyluik successfully applied for a nonsuit and the charges against Det. Lewis were dismissed.These disciplinary charges have no impact on the case against Mr.

Lam and are not the subject of the disclosure application brought onMr. Lam’s behalf and argued on March 17, 2016. [10] In March, 2015, Det. Lewis and another officer, Cst. French, were charged with trafficking in steroids. Mr. Danyluik neverconsulted with or acted for Det. Lewis regarding these charges, but he currently acts for Cst. French. [11] Cst. French had no involvement in Mr. Lam’s investigation or arrest. [12] Mr. Danyluik also acted for Cst. Toma in relation to disciplinary matters. He represented Cst. Toma at his disciplinary hearingMarch 27, 2015, where Cst.

Toma pleaded guilty to one count of Deceit and one count of Discreditable Conduct. [13] The finding of misconduct against Cst. Toma relates to the investigation by the Alberta Serious Incident Response Team(“ASIRT”) into Det. Lewis on allegations of trafficking in steroids. Cst. Toma provided a statement to ASIRT in May 2014. In July 2014,Cst. Toma contacted ASIRT indicating he wished to clarify information he provided. He provided a second statement in July 2014 andalso provided a statement to the Edmonton Police Service in March 2015. [14] Cst. Toma admitted to purchasing steroids from Det.

Lewis once in April or May 2012 and once in early 2013. He was foundguilty of deceit for initially having denied using steroids in that time frame and having denied knowledge that Det. Lewis had been inpossession of them or was distributing them. Waiver [15] Subsequent to the hearing of this application, counsel for Cst. Toma, Mr. Teskey, Q.C., advised the Court that he is satisfiedwith the assurances made by Mr. Davidson that confidential information has not been shared within the firm, either directly orinadvertently. Cst. Toma waives any conflict that may exist and understands that Mr.

Davidson wishes to cross examine him on matterspertaining to the credibility and reliability of his evidence. He is satisfied that adequate safeguards pertaining to confidential informationwill continue. [16] The Law Society Of Alberta’s Code of Professional Conduct contemplates allowing a lawyer to continue to act in a manner,even when in a conflict of interest, if the client consents. (See also Alberta Union of Provincial Employees v United Nurses of Alberta,Local 168, 2009 ABCA 33). [17] The nature of the potential conflict has been fully disclosed to Cst. Toma.

With the benefit of independent legal advice, he hasprovided his informed consent for Mr. Davidson to act. It is therefore not necessary for me to consider any conflict of interest in relationto Cst. Toma. [18] Det. Lewis, however, objects to Mr. Davidson’s continued representation of Mr. Lam. He argues that Mr. Danyluik came intopossession of confidential information such as Det. Lewis’ curriculum vitae, performance evaluations, and protected communications.Det. Lewis is not supportive of the idea of Mr.

Davidson cross examining him and delving into his disciplinary record and the substanceof the criminal charges he is currently facing. The Law [19] The seminal case on conflict of interest is MacDonald Estate v Martin, (SCC), [1990] 3 SCR 1235. SopinkaJ for the Court identified three competing values: the maintenance of professional standards and integrity of the justice system, the rightto counsel of choice and the desirability of permitting reasonable mobility in the legal profession. [20] On the agreed facts, Mr. Davidson has not received any confidential information regarding Det. Lewis. Mr.

Danyluik’s filehas been closed and destroyed. In fact, Mr. Davidson had no knowledge Mr. Danyluik had acted for Det. Lewis until he read Mr.Danyluik’s “will-say” statement. Similarly, Mr. Danyluik has no information regarding Mr. Lam or his investigation.

[ 21 ] Nonetheless, even if no actual conflict exists, the Court must also be satisfied that no perception of conflict exists. This is based on the notion that “justice must not only be done but must manifestly be seen to be done”: MacDonald at para 22. [ 22 ] Because Mr. Davidson, Mr. Karbani and Mr. Danyluik practice at the same firm, they are imputed with the knowledge of each other. When the firm is a small, specialized firm like Davidson Gregory Danyluik , there is a strong inference that the lawyers working together share or are exposed to information pertaining to all clients of the firm.

This inference may be rebutted on the basis of clear and convincing evidence that all reasonable measures have been taken to ensure confidential information is not disclosed. [ 23 ] In MacDonald , at paras 47 to 49, the Court stated the appropriate test for the perception of a conflict as: . . . the test must be such that the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur.

That, in my opinion, is the overriding policy that applies and must inform the court in answering the question: Is there a disqualifying conflict of interest? . . . [emphasis added] [ 24 ] A reasonably informed member of the public would be informed of the following facts about Mr. Danyluik and Mr. Davidson: • They share office space and are listed together on the firm letterhead; • They operate separate practices in which they do not collaborate, discuss or assist each other.

Rather, each lawyer has his own clients; • Each lawyer stores his own files in separate offices and no other lawyer is allowed in another’s office without a valid excuse; • Both lawyers have provided statements, which the Crown has accepted as true, which state that they have never shared information with each other respecting Mr. Lam, Cst. Toma, or Det. Lewis; • Mr. Danyluik’s communications with both Det. Lewis and Cst. Toma were under one hour each, and therefore his knowledge of any confidential information is very limited; • Mr. Danyluik represented Det.

Lewis on an unrelated disciplinary matter that has no bearing on Mr. Lam’s case; • Mr. Danyluik has never consulted with nor acted for Det. Lewis with regard to the trafficking charges he currently faces; and • Mr. Danyluik’s files pertaining to Cst. Toma and Det. Lewis have been closed and archived or destroyed entirely. [ 25 ] In my view, any conflict of interest in relation to Det. Lewis is tenuous at best. Mr. Danyluik represented him in a matter which has no bearing on Mr. Lam’s trial. The subject matter of Mr. Danyluik’s representation will not be raised by Mr. Davidson in his cross examination of Det.

Lewis. [ 26 ] The Crown is also concerned by the fact Mr. Karbani, on behalf of Mr. Danyluik, attended a pre-trial conference in September, 2014 in the French matter. The Crown prosecuting Cst. French advises that the disclosure provided mirrors that provided in the Lewis prosecution and disclosure was discussed at the pre- trial conference Mr. Karbani attended. Having reviewed the memos prepared by both the Crown and Mr. Karbani following the pre-trial conference, it appears forthcoming disclosure was addressed in a general sense but specific evidence was not discussed. [ 27 ] In any event, Mr.

Danyluik advises he has not looked at any of the disclosure pertaining to Det. Lewis. [ 28 ] Allegations of conflict of interest must have an air of reality, grounded by factual underpinnings. I find the comments of Berger JA in R v Chan , 2000 ABCA 207 to be instructive: [8] There can be no doubt that a mere allegation of conflict of interest, without more, will not suffice. In my opinion, there must be an air of reality to the contention supported by factual underpinnings of a conflict of interest that may taint the integrity of the proceedings pending against one or more accused persons.

The Crown is not required to demonstrate an actual conflict. If the allegation were premised upon the appearance of impropriety, and if it were shown that there existed a real likelihood of a violation of solicitor/client privilege as between law firms or as between accused persons, that well might suffice. [9] But no such showing has been made in this case and the record, in my opinion, fails to provide an air of reality to any concern premised upon antagonistic defences, misuse of confidential information, or breach of solicitor/client privilege. . . .

The test is whether a reasonable person, properly informed, would perceive the conflict led by the Crown. That test is not made out. [ 29 ] Considering the factual context of this case, I am satisfied that a reasonable person, being advised of these facts, would conclude that no conflict exists in relation to Det. Lewis. [ 30 ] But even in the face of a perceived conflict of interest, I must consider Mr.

Lam’s right to counsel of choice and the very late timing of this application. [ 31 ] An accused’s right to counsel of choice is a right protected by the Charter and a fundamental element of our criminal justice system. The removal of counsel, against the will of the accused, defeats the general public interest and must only be done when there is a compelling reason to do so. As such, the consequences of removing counsel must be considered in deciding whether to disqualify counsel. [ 32 ] Mr. Lam’s trial is scheduled for June 20, 2016. It was originally scheduled for June, 2015.

There are further pre-trial motions

yet to be argued. Mr. Davidson is now keenly familiar with Mr. Lam’s case. [ 33 ] Mr. Davidson is an experienced criminal defence counsel. Retaining new counsel of equivalent experience and calibre would take some time. Disqualification of Mr. Davidson would likely necessitate a second adjournment of this trial which will impact both Mr. Lam and the co-accused Ms. Glasser. Mr. Lam will incur additional legal fees for new counsel to prepare. [ 34 ] Further, the timing of this disqualification application is troublesome. While Cst.

Toma’s waiver has now rendered moot any conflict in relation to him, both the Crown and Mr. Davidson had an obligation to address the perceived conflict of interest at a much earlier stage. Both knew or should have known of Mr. Danyluik’s representation of Cst. Toma when the updated McNeil Report was provided in June, 2015. [ 35 ] Mr. Davidson did not know that Mr. Danyluik had acted for Det. Lewis until he read Mr. Danyluik’s “will-say” statement. Mr. Davidson suggests that Det. Lewis would have known that Mr. Karbani was acting for Mr. Lam when he listed Det. Lewis as a witness to be questioned at Mr.

Lam’s preliminary inquiry. Det. Lewis did not testify at the preliminary inquiry and his submissions did not address whether he knew Mr. Karbani was acting for Mr. Lam when he retained Mr. Danyluik. [ 36 ] Clearly, though, he retained Mr. Danyluik well after Mr. Lam had retained Mr. Karbani. It is worth considering, whether the public’s confidence in the justice system would be eroded, rather than enhanced, by an accused’s deprivation of counsel of his choice, by the later decision of a Crown witness to retain another member of the same firm for his own matter. [ 37 ] Certainly, Det. Lewis would have known of Mr.

Davidson’s involvement in October, 2015 when Mr. Davidson served him with his disclosure application. Yet his objection was only raised in response to my inquiry of the Crown as to whether the positions of Cst. Toma and Det. Lewis had been ascertained. [ 38 ] The Crown did not raise the specter of a possible conflict until February, 2016. Conflicts should be raised at the earliest practicable stage: R v Neil , 2002 SCC 70 . The timing of this application and the consequences to both Mr. Lam and Ms. Glasser militate against a disqualification order. Conclusion [ 39 ] Neither Mr. Karbani nor Mr.

Davidson are in an actual conflict of interest. To the extent any perceived conflict of interest exists regarding Cst. Toma, he has waived any such conflict and he is satisfied with the safeguards that have been put in place and will remain through the conclusion of Mr. Lam’s trial. [ 40 ] The perceived conflict of interest in relation to Det. Lewis is far more tenuous and I conclude that a reasonable person, properly informed of the facts, would not perceive a conflict. Further, Mr.

Lam’s right to counsel of choice coupled with the very late timing of this application militate against an order for disqualification. [ 41 ] Accordingly, Mr. Davidson and Mr. Karbani are permitted to continue to act for Mr. Lam. Messrs. Davidson, Karbani and Danyluik are to provide their undertaking to the Court, to the Crown, to Cst. Toma and Det. Lewis that the institutional safeguards implemented within their firm will continue to ensure that no confidential information in relation to Mr. Lam is shared with Mr. Danyluik and no confidential information with respect to Cst. Toma and Det.

Lewis is shared with Mr. Davidson or Mr. Karbani. Heard on the 7 th day of March, 2016. Dated at the City of Edmonton, Alberta, this 8 th day of April, 2016 . Dawn Pentelechuk J.C.Q.B.A. Appearances: Dawn M. MacDonald Public Prosecution Service of Canada

for the Crown Robert H. Davidson, Q.C. Davidson Gregory Danyluik for the Accused Lam Akram Attia (no appearance) Attia Reeves for the Accused Glasser