Her Majesty the Queen - v. -, 2019 SKPC 41

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 41 Date: July 18, 2019 Information: 991093121 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Austin Yates and Kayle George Appearing: Mr. Adam Breker For the Crown Ms. Sharon Fox For the Accused Austin Yates Ms. Maria Pappas, Q.C. For the Accused Kayle George DECISION ON WHETHER DEFENCE COUNSEL MAY CONTINUE TO ACT FOR THE ACCUSED, AUSTIN YATES D.

KOVATCH , J Evidence and Background Information [ 1 ] Austin Yates and Kayle George were jointly charged with committing second degree murder by unlawfully causing the death of Miguel Lucas Lane on October 23, 2018, in Information 991081884, sworn on February 19, 2019. Following the laying of this

Information, the accused Austin Yates retained the services of Ms. Sharon Fox as defence counsel, and the accused Kayle George retained the services of Ms. Maria Pappas Q.C. as defence counsel. Presumably, counsel went through the normal preliminary procedures, and this matter was set for a preliminary inquiry to be held in Regina during the week of May 27, 2019. Both accused remain in custody. [ 2 ] Immediately after court was opened on May 27, Crown counsel, Mr. Breker, advised that the preliminary inquiry would not proceed, as it had been resolved. Mr.

Breker presented the Court with a new Information 991091581. That Information jointly charged the same two co-accused, Austin Yates and Kayle George, with committing manslaughter, by causing the death of Miguel Lane on October 23, 2018. The face of the Information indicates that it was sworn on May 27, 2019. I would conclude, given that court opened at 9:30 on May 27, that this Information was sworn shortly prior to court being opened. [ 3 ] Upon the Court being presented with this new Information, Ms. Fox, on behalf of Mr. Yates and Ms. Pappas on behalf of Mr.

George, each waived formal reading of the election, and each elected trial by a Provincial Court Judge. Immediately thereafter, Ms. Fox, on behalf of Mr. Yates and Ms. Pappas, on behalf of Mr. George, each entered guilty pleas to the manslaughter charge. [ 4 ] Mr. Breker then asked that all of the process documents, compelling the appearance and remand of both co-accused, be transferred from the second degree murder Information to the new Information alleging manslaughter. I directed the transfer of the process documents, and with that Mr.

Breker asked to withdraw the charges of second degree murder against each co-accused. [ 5 ] Mr. Breker then advised that all counsel would be advancing a joint submission. He asked that the matter be adjourned to May 30 at 2:00 p.m. for sentencing submissions. He further advised that the only reason for adjourning for sentencing submissions was that the agreement had been reached so shortly prior to court that none of the counsel had any proper opportunity to prepare sentencing submissions.

Everybody was in agreement with the matter being adjourned to Thursday afternoon, and it was quickly so adjourned. [ 6 ] On the afternoon of May 30, immediately after court was opened, Ms. Fox began by requesting a common law order for non- publication of evidence and proceedings. As she did so, she spoke of possible prejudice to Mr. Yates by the disclosure of what might be said in court. I was very confused by this, and stated that I was anticipating receiving a joint submission, and thereafter sentencing Mr. Yates.

I did not understand what prejudice there could be to the accused by the publication of these proceedings. At that time, Ms. Fox indicated that the joint submission would not be proceeding. She advised that she had received instructions from her client “to resile from the joint submission”. She further stated: My client is no longer in agreement with proceeding on the joint submission basis. I can advise the Court I provided those instructions to my friend, in writing, yesterday afternoon. As a result, there are two options going forward and I will let my friend speak to how he wishes to proceed.

My client/the Crown wishes to make application to expunge his plea and renew the original Information that was stayed on the murder charge. My client makes no opposition to that. He will consent to any such application being made… I am not making the application. I am communicating to the Court that there was an agreement. The agreement to the plea was attached to a joint submission. Given that part of the agreement has now been reneged. … [ 7 ] During the course of discussion, I suggested that there would have to be a date set for an expungement hearing. Ms.

Fox advised that she was not applying to expunge the plea. She said she was prepared to proceed with a contested sentencing hearing on the basis of the guilty plea to the manslaughter charge, but she had instructions to resile from the joint submission. [ 8 ] Mr. Breker, for the Crown, stated he was very surprised by Ms. Fox now taking this position, and very surprised by her continued involvement in the proceedings given the change of position. Ms. Pappas, speaking for Mr.

George, said that her instructions were and remained that she was to enter a guilty plea and make the joint submission respecting sentence. [ 9 ] I too advised that I was very surprised by this unexpected turn of events, and at a loss as to how and where to proceed from here. I advised we would have to adjourn and then I would hear counsel as to how we proceeded further. We adjourned to Friday, June 7 for that purpose. I asked each counsel to serve and file, in advance, something in the form of a Notice of Motion, wherein they each set forth a proposed and requested procedure.

I wanted this to give us some starting point and basis for the discussion that would occur on June 7. I did make an order temporarily barring publication of the proceedings. I advised that order would be in place until the adjourned day of June 7, and whether it was continued beyond that date would be discussed on June 7. [ 10 ] On June 3, 2019, Ms. Fox did write to the Court about the matter. She stated in part as follows:

The Honourable Judge D.J. Kovatch asked counsel to file a motion on today’s date advising how to best proceed in light of the change of instructions provided by Mr. Yates. At this time, it is the position of counsel for Mr. Yates, that the decision on how to proceed rests with the Crown and, in terms of the next steps forward, any response from or position taken by Mr. Yates will be dependent on any application or position taken by the Crown. Mr. Yates is prepared to proceed on a contested sentencing on the charges Mr. Yates has already plead guilty to [ sic ]. Mr.

Yates, however, is aware that the Crown has in its power and discretion the ability to lay a new Information on the original charge of second degree murder that Mr. Yates was facing and further it is within the Crown’s discretion to proceed in the normal course or prefer an indictment on any new Information laid. As such, until such time the Crown advises of their intended course of action, there is no application that Mr. Yates can make at this time with respect to the next steps in this matter. [ 11 ] After making the above mentioned statements, Ms.

Fox proceeded to renew her application for the common law ban on publication of evidence.

She stated as follows: Specifically that the publication ban would be limited to the following facts: a. that a guilty plea was entered to the charge of manslaughter; b. that a joint submission by way of sentence was anticipated; c. that there was a plea arrangement between the Applicant and the Crown for a joint submission on sentence in exchange for the Crown accepting a plea to a lesser included offence; and, [emphasis added] d. that as a result of the Applicant’s changed instructions, the matter is now proceeding to trial on the more serious charge of second degree murder. [ 12 ] She went on to set forth the grounds for the application as follows: Grounds for seeking the order: 4.

On May 27, 2019, the accused, Austin Yates, (hereinafter “the Accused”) entered a guilty plea to a single count of manslaughter in respect to a Miguel Lane on Information 991091581. The Crown withdrew and/or entered a stay of proceedings on Information 991081884 which was an Information charging the accused with second degree murder in the death of Miguel Lane. 5. The matter was adjourned May 30, 2019 for counsel for the accused and prosecutor to present a joint submission on sentence to the court. 6.

The plea arrangement entered into by the Crown and the Accused was for a joint submission on sentence in exchange for the Crown accepting a guilty plea to a lesser included offence – that being manslaughter. [emphasis added] 7. Also, as part of the plea arrangement the co-accused, Kayle George, also had to agree to the plea arrangement. Mr. George also entered a plea to the lesser included offence of manslaughter on Information 991091581. Similarly, in relation to Mr. George, the Crown withdrew and/or entered a stay of proceedings on Information 991081884. 8.

On May 30, 2019, counsel for the Accused advised the court that the Accused had changed his instructions and was not prepared to enter into a joint submission. … 13. The Accused, even at a trial for second degree murder, has the right to advance of defence of complete innocence. [ sic ] 14. There is a real and substantial potential for members of the public, who may later sit on the petite jury, to have read or learned of the prior guilty plea and plea arrangement.

This knowledge has the real and substantial potential to lead the jurors to believe that the Accused was in fact guilty given his prior guilty plea to manslaughter. In the event that the Accused must or does testify in the trial of this matter, any juror members aware of the Accused’s prior guilty plea and his changed instructions may have doubt as to the veracity of the Accused’s testimony given his prior inconsistent instructions as to the plea arrangement. Credibility of the Accused is a matter of significant relevance to the judge and jury trial.

[13] When proceedings resumed on June 7, 2019, Mr. Breker, for the Crown, advised that he had considered all possible options asto how this matter should be dealt with. They had determined that the best option for the Crown was to lay a new Information chargingboth accused with second degree murder. At that time, Mr. Breker presented to the Court a new Information 991093121. This newInformation is virtually word for word the same charge as was alleged in Information 991081884 which was withdrawn on May 27. Mr.Breker then stayed Information 991091581, the manslaughter charge.

It is significant to note there has been no application to expungethe guilty plea. That guilty plea remains on the record. [14] Counsel for Mr. George, Ms. Pappas, then advised that if this matter were proceeding to preliminary inquiry and trial, newcounsel would be retained for Mr. George. She advised this was earlier raised with the Crown. The Crown agreed with this. The matterwas adjourned to July 18 for Mr. George to retain new counsel. [15] Ms. Fox was looking for the matter to be adjourned to July 18, and then to set dates for a preliminary inquiry.

I advised thatthere remained the significant issue as to whether Ms. Fox’s conduct was unethical, and whether I should direct that she be discharged ascounsel for Mr. Yates. Ms. Fox advised that the Court was impugning her integrity, and she requested an adjournment to bring in seniorcounsel to represent her in that discussion. I agreed that I was impugning and questioning her integrity, and agreed to adjourn the matterso that she could be represented by counsel.

The matter was adjourned to July 4 for counsel to make representations regarding theethical propriety of counsel’s actions, and for the Court to consider whether she should be discharged as counsel for Mr. Yates. [16] On July 4, to my surprise, no one appeared with Ms. Fox to speak to matters on her behalf. Ms. Fox very briefly spoke tomatters. She stated that in order to answer the allegations of breach of ethics, her client would have to waive solicitor/client privilege,and he will not do that. As a result, she cannot speak to the ethical issues. This Court is not the appropriate forum to discuss ethicalissues.

Further that this Court has no jurisdiction to rule on her ethics. She invited me to make a formal complaint to the Law Society ofSaskatchewan. She stated she would welcome the investigation and report to the Law Society as she was satisfied her ethics were abovereproach. Lastly, she said that the ethical issues arose on two Informations that have been stayed and were no longer before the Court, soI cannot take any further steps regarding those matters. What is the Jurisdiction of the Court to review the ethics of counsel before the Court?

What kind of Orders can the Court make? [17] The Supreme Court of Canada has held that courts are entitled to sanction counsel or make orders dismissing them fromcriminal proceedings, as part of their control of the criminal law process before them. They have also held that the provincial LawSocieties are empowered to enact codes of conduct, and enforce those codes through disciplinary actions against lawyers. The LawSocieties gain these powers through valid provincial legislation enacted in each of the provinces.

See R v Nixon, 2011 SCC 34, [2011] 2SCR 566 [Nixon] and Law Society of British Columbia v Mangat, 2001 SCC 67, [2001] 3 SCR 113. In R v Cunningham, 2010 SCC 10,[2010] 1 SCR 331, the Court discussed the relationship between court orders respecting counsel and orders made by law societies. Atparagraphs 35 to 38, the Court stated: [35] The law societies play an essential role in disciplining lawyers for unprofessional conduct; however, the purpose of the courtoverseeing withdrawal is not disciplinary. The court’s authority is preventative – to protect the administration of justice and ensure trialfairness.

The disciplinary role of the law society is reactive. Both roles are necessary to ensure effective regulation of the profession andprotect the process of the court. [36] The rules enacted by the law societies are essential statements of the appropriate standards of professional conduct. … [38] While the court is not bound to apply law society or Canadian Bar Association codes of professional conduct, these codes“should be considered an important statement of public policy” (MacDonald Estate, at page 1246).

These standards complement thecourt’s discretion to refuse withdrawal where the effects on the administration of justice will be severe. [18] To the extent that Ms. Fox is saying I cannot discipline her for unethical conduct, she is perfectly correct. I agree with her. The Court cannot discipline counsel on matters that arose on the stayed Informations. However, the Court does have jurisdiction toprevent counsel from acting on the matter presently before the Court, where there would be continuing breach of ethics.

The Court doeshave jurisdiction to prevent counsel from continuing to act if by doing so there was a reasonable likelihood counsel would face a conflictof interest. The Court not only has jurisdiction but a duty to make such Orders where necessary to insure trial fairness and maintainpublic confidence in the administration of justice. See for example: R v Speid (1983), (ON CA), 43 OR (2d) 596(Ont CA) [Speid]; R v White, 2016 ONCJ 186 [White] and R v Willett, 2018 ONSC 5031 [Willett]. Was the conduct of Ms.

Fox contrary to the Code of Professional Conduct issued by the Law Society of Saskatchewan, and thus unethical?

[19] Under The Legal Profession Act, 1990, SS 1990-91, c L-10.1 the Law Society of Saskatchewan is responsible for defining and enforcing standards of professional competency and conduct, including ethical conduct,expected of all lawyers. It has enacted a Code of professional conduct which sets a number of rules for lawyers engaged in the practiceof law. It also has a number of commentary provisions, that provide additional guidance for lawyers in their conduct.

A number of theprovisions in the Code of Professional Conduct are relevant to the case at bar. [20] Under clause 2.1-1, a lawyer is required to discharge all of his responsibilities honourably and with integrity. The commentary note number 4 states that dishonourable or questionable conduct on the part of the lawyer willreflect adversely upon the integrity of the profession and the administration of justice. [21]

Section 5.1-6 deals with undertakings of a lawyer during the course of litigation. It states: A lawyer must strictly and scrupulously fulfill any undertakings given and honor any trust conditions accepted in the course of litigation. [22]

Section 7.2-11 deals with undertakings and trust conditions. It states: A lawyer must not give an undertaking that cannot be fulfilled and must fulfill every undertaking given and honor every trust conditiononce accepted. [23]

Section 1 of the commentary under this

section states as follows: Undertakings should be written or confirmed in writing and should be absolutely unambiguous in their terms. If a lawyer giving anundertaking does not intend to accept personal responsibility, this should be stated clearly in the undertaking itself. In the absence ofsuch a statement, the person to whom the undertaking is given is entitled to expect that the lawyer giving it will honor it personally. [24] In the practice of law, almost every day, lawyers must negotiate and deal with other lawyers that have or represent competing interests.

Lawyers are professionally obligated by the canon of ethics to strictly comply andfulfill all agreements and undertakings. Acting contrary to an agreement and undertaking is unethical. [25] As I understand the situation, Ms. Fox admits that there was an agreement for a joint submission, and that she resiled or backed away from that agreement. Counsel argued that one must distinguish between an agreementtruly reached between counsel, and an agreement for a joint submission.

As I understand the argument, it is to the effect that she merelycommunicated to Crown counsel that she had instructions to join in a particular submission. This was not an agreement that she reachedwith counsel. As a result, when her client instructed that she resile from the joint submission, she was entitled to do so and would not bein violation of the canon of ethics. [26] There is some case law to support this argument see for example R v McKay, 2004 MBCA 78, 2004 MBCA 78 , 186 CCC (3d) 328 and R v Sinclair, 2004 MBCA 48, 185 CCC (3d) 569.

Both of those casesdraw a distinction between a simple agreement between counsel as to the recommended sentence, and a plea bargain agreement wherepleas are entered to various charges in return for a joint submission. The Court asked: “Is there a quid pro quo?” Even in these caseshowever, the Manitoba Court of Appeal allowed that a complete plea bargain agreement with a quid pro quo will be much more difficultto set aside. [27] In the present case, there is no way, in my view, that the defence argument can be accepted or applied to the facts of this case. In Ms.

Fox’s letter to the Court, which has been quoted from above, she clearly states on twooccasions as follows:

The arrangement entered into by the Crown and the accused was for a joint submission on sentence in exchange for the Crown accepting a guilty plea to a lesser included offence – that being manslaughter. [ 28 ] In addition, it is very significant that all counsel took steps in and reliance upon, and to implement their agreement. The agreement was clearly reached between counsel, prior to court on May 27. Pursuant to that agreement, Mr. Breker then laid a new Information charging the parties with manslaughter.

Pursuant to that same single agreement, defence counsel then waived formal reading of the election, elected trial by a Provincial Court Judge, and entered a guilty plea to the charge of manslaughter. As a result, not only did counsel reach that agreement as between themselves, each counsel then took significant steps before the Court in reliance upon that agreement and to implement the very terms of that agreement. Having done so, Ms. Fox could not accept the instructions received and back away from her agreement and simply expect that everything would go back to the initial stages.

I hasten to add that even if I accepted that counsel merely advised she was instructed to join in a particular submission, and then advised her instructions had changed, my decision would be the same. I would still hold that by agreeing to follow those instructions, and actively taking steps to implement the agreement, counsel has adopted and crystalized the agreement, and that agreement was binding upon them. [ 29 ] It seems to me that the Code of Professional Conduct also has of other specific provisions that should have guided Ms. Fox when she received these instructions from her client. Firstly,

section 3.7-2 states: If there has been a serious loss of confidence between the lawyer and the client, the lawyer may withdraw. The first commentary paragraph below this

section states: A lawyer may have a justifiable cause for withdrawal in circumstances indicating a loss of confidence, for example, if a lawyer is deceived by his client, the client refuses to accept and act upon the lawyer’s advise on a significant point, a client is persistently unreasonable or uncooperative in a material respect, or the lawyer is facing difficulty in obtaining adequate instructions from the client.

Section 3.7-7 deals with obligatory withdrawal. It states: A lawyer must withdraw if… (

b) a client persists in instructing the lawyer to act contrary to professional ethics… [ 30 ] In the case at bar, it is my view that Ms. Fox was obligated to withdraw as counsel. She could not accept and act upon the instructions from her client to resile from the agreement reached. In failing to withdraw, she acted contrary to the canon of ethics. [ 31 ] If Ms. Fox continues to act, and presents anything resembling a full defence to the charge of second degree murder, she will act contrary to the canon of ethics.

Section 5.1-1 deals with the lawyers duties as an advocate. It states: When acting as an advocate, a lawyer must represent the client resolutely and honorably within the limits of the law while treating the tribunal with candor, fairness, courtesy and respect. Commentary number 10 under this

section specifically deals with ethical obligations on defence counsel. This paragraph states: Admissions made by the accused to a lawyer may impose strict limitations on the conduct of the defence, and the accused should be made aware of this.

For example, if the accused clearly admits to the lawyer the factual and mental elements necessary to constitute the offence, the lawyer, if convinced that the admissions are true and voluntary, may properly take objection to the jurisdiction of the court, the form of the indictment or the admissibility or sufficiency of the evidence, but must not suggest that some other person committed the offence or call any evidence that, by reason of the admissions, the lawyer believes to be false.

Nor may the lawyer set up an affirmative case inconsistent with such admissions, for example, by calling evidence in support of an alibi intended to show that the accused could not have done or, in fact, has not done the act. Such admissions will also impose a limit on the extent to which the lawyer may attack the evidence for the prosecution. The lawyer is entitled to test the evidence given by each individual witness for the prosecution and argue

that the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged, but the lawyershould go no further than that. It is apparent from her letter that Ms. Fox is intent upon continuing to act and providing a full defence to Mr. Yates at a trial for second degree murder.

In ground number 13 advanced to argue for the publication ban, she stated: “The accused, even at a trial for second degree murder has the right to advance of defence of complete innocence.” In ground number 14, she states: In the event that the Accused must or does testify in the trial of this matter, any juror members aware of the Accused’s prior guilty pleaand his changed instructions may have doubt as to veracity of the Accused’s testimony given his prior inconsistent instructions as to theplea arrangement.

Credibility of the accused is a matter of significant relevance to the judge and jury trial. [32] By the guilty plea entered to the manslaughter charge, which remains part of the public record, Mr. Yates admitted that he caused the death of Miguel Lane; Ms. Fox personally admitted to the Court that he caused the deathof Miguel Lane; Ms. Fox is deemed to have undertaken to the Court that she discussed these matters with her client and that heknowingly instructed her to make these admissions by guilty plea to the Court. If Ms.

Fox carries on as defence counsel and advances acomplete defence to the murder charge, as she is speaking about, she will be clearly acting in violation of these ethical provisions. [33] I now turn to look at the case law. There are not many cases where the courts examine counsel’s conduct in retracting a plea agreement. I suspect this is because counsel rarely back away from an agreement reached and anundertaking given. There are more cases where the Crown replaced Crown counsel and used prosecutorial discretion to seek a higherpenalty. See for example Nixon.

In my view, all of the cases emphasize the importance of agreements reached between counsel, and thehigh bar that must be crossed, for counsel to resile from an agreement. See for example: R v R.N.M. (2006), (ONSC), 83 OR (3d) 349 (Ont Sup Ct); R v Tallon (ON CA), 2003,181 CCC (3d) 261 (Ont CA) [Tallon] and R vGoodwin, (NS CA), [1981] NSJ No 61 (QL) (NS SC App Div) [Goodwin]. [34] The Tallon case is interesting because the accused reached an agreement with the Crown for a joint submission. He argued he should not be held to this agreement as it was reached “at the eleventh hour”.

The Ontario Courtof Appeal upheld the joint submission and sentence. [35] In the Goodwin case, at paragraphs 12 and 13, the Court stated as follows: [12] In the present appeal we must consider whether the sentence imposed is so grossly insufficient in view of the gravity of theoffences that the public interest in the orderly administration of justice would be adversely affected. The Crown was under no duty tomake a bargain. The fact it now considers that it should not keep its part of the bargain must be viewed not only in light of theinsufficiency of sentence, but also in fairness to the respondent.

The respondent had a right to have his case tried in the usual manner andpresent to the court any defense that was available to him. With knowledge of the terms of the bargain he entered pleas of guilty. It maybe that the bargain should not have been made in view of what this court has stated as being proper sentences in crimes of this nature, However, it was made and, in my opinion, it must be honoured.

Plain honesty and fairness demand that the agreement not be nowrepudiated. [13] Although the sentence agreed to was insufficient, I do not consider it so grossly insufficient to be against the public interestweighed in the light of the alternative. A bargain is a bargain and, if the Crown does not wish to be bound by it, the simple solution is tomake no bargain at all.

I do not wish to imply that this court will always uphold a bargain made by counsel however wrong or ill-advised, but rather that, in weighing the proper principles to be applied in resolving such matters, the burden is heavy on the party whoseeks to repudiate. I do not find in this appeal that the Crown has satisfied that burden. [36] In R v Anthony-Cook, 2016 SCC 43, [2016] 2 SCR 204 [Anthony-Cook] the Supreme

Court looked at agreements reached between counsel to enter pleas and joint submissions as to sentence. The Court said suchagreements are not only commonplace, they are essential to a smooth functioning and efficient system. At paragraphs 35-41, the Courtnoted the various benefits of joint submissions. One of the noted benefits is the high degree of certainty as to the result. The Court wenton to say that the parties must have a high degree of confidence that joint submissions will be accepted. Joint submissions should not belightly or easily disregarded by the courts.

It imposed a high threshold for a sentencing Judge to disregard a joint submission saying: [34] Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance wouldlead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty inresolution discussions to believe that the proper functioning of the justice system had broken down. [37] In the Anthony-Cook case, the Court was primarily dealing with the circumstances under which the Court can disregard a joint submission.

The Court did not really deal with the conduct of counsel in reaching a jointsubmission. However, at paragraph 44, the Court said this: Finally, I note that a high threshold for departing from joint submissions is not only necessary to obtain all the benefits of jointsubmissions, it is appropriate. Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests ofboth the public and the accused (Martin Committee Report, at p. 287).

As a rule, they will be highly knowledgeable about thecircumstances of the offender and the offence and the strengths and weaknesses of their respective positions. The Crown is charged withrepresenting the community`s interest in seeing that justice is done (R. v. Power, (1994) (SCC), 1 SCR 601, at p. 616). Defence counsel is required to act in the accused`s best interests, which includes ensuring that the accused`s plea is voluntary andinformed (see, for example, Law Society of British Columbia, Code of Professional Conduct for British Columbia (online), rule 5.1-8).

And both counsel are bound professionally and ethically not to mislead the court (ibid.,rule 2.1-2(c)). In short, they are entirely capableof arriving at resolutions that are fair and consistent with the public interest (Martin Committee Report, at p. 287). [38] In summation, in Anthony-Cook, the Court imposed a high standard on the Court before departing from a joint submission. It should only do so in rare and exceptional circumstances. In cases such as Nixon, the Court has saidthe Crown can be sanctioned under the doctrine of abuse of process for breaching a joint submission.

The Court has also said that bothcounsel must both act professionally and ethically. [39] It seems to me that defence counsel must be held to a similarly high standard as are the Crown and the Court. Defence counsel cannot simply disregard its agreement because the client has changed his mind and soinstructed. In my view, a reasonable and informed person would not think it fair or appropriate that the Crown and the Court wereobligated to follow an agreement, but defence counsel could depart from that same agreement at their choosing and withoutconsequence.

Moreover, the “high degree of certainty of result” and the utility of plea bargain agreements will be seriously underminedif the Crown and the Court cannot rely upon the word and agreement reached by defence counsel. [40] In the present case, I have been presented with no reason or argument as to why counsel should be able to back away from her agreement, other than her client has so instructed. She has argued there is no ethical problem withher following her client`s instructions. I disagree. Agreements and undertakings between counsel are very serious, and cannot be easilydisregarded.

In my view, by casually disregarding the agreement reached, Ms. Fox has acted contrary to the Code of ProfessionalConduct. Joint submissions have become an accepted and much utilized process of the Court. She has improperly undermined thatprocess. Should the Court Grant a Remedy by Discharging Defence Counsel?

Should an Order be made compelling the withdrawal or discharge of Ms. Fox as counsel to Mr. Yates? [ 41 ] As mentioned above, the Court may make an Order preventing counsel from withdrawing, or compelling counsel to withdraw. Such an Order may be made to prevent unethical conduct and in the interest of a fair trial and to protect the process of the Court. However, while the Court may make an order against counsel for breach of ethical duties, it should not do so easily. Not every breach of an ethical provision will result in the discharge of counsel.

In Willett , the Court put the matter this way: [25] I acknowledge that an accused`s right to retain and instruct counsel of her choice is inferentially entrenched in ss. 7 , 10(

b) and 11(

d) of the Canadian Charter of Rights and Freedoms , and it is not to be interfered with lightly. It would appear that the Court should only discharge or dismiss counsel where allowing counsel to continue “would undermine public confidence in the administration of justice” or the Court determines that the lawyer involved is in a conflict of interest.

In Willett and Speid the Court determined that counsel was in a conflict and that the compelling reasons were present for the discharge of counsel. [ 42 ] In the present case, I am satisfied that compelling reasons are present, and that an order must be made discharging counsel. I am satisfied that if counsel is allowed to continue to act, public confidence in the administration of justice would be undermined and significant questions regarding the fairness of that trial will arise.

I come to that conclusion for the following reasons. [ 43 ] Firstly, above, I have identified two particular breaches of the Code of Professional Conduct. There was a breach of an agreement and undertakings reached between counsel. In addition, there was a breach when counsel did not apply to withdraw, as opposed to acting upon instructions to act in an unethical manner. If counsel is discharged, and new counsel retained, the above mentioned breaches are over and done with. We will then proceed to move forward with new counsel and in that trial will determine guilt or innocence.

If counsel continues to act, then the breaches are not done and over with. To the contrary, they remain as continuing breaches. Each and every step that counsel takes on behalf of Mr. Yates remains a breach of the undertaking and breach of the duty to withdraw. The Court is required to provide a fair trial and fair hearing for all sides to the dispute. To do that, it must insist upon proper and ethical conduct from all of the counsel involved. The Court cannot sanction an ongoing breach of the canon of ethics, for counsel for one party, and say that it is providing a fair trial.

The Court must direct dismissal of counsel and the retention of new counsel in order to have a fair trial for all sides to the dispute. [ 44 ] Secondly, the decisions indicate that the Court must act to discharge counsel if counsel is in a conflict.

See Speid and Willett , referred to above and White . [ 45 ] The Code of Professional Conduct defines conflict of interest as follows: A “conflict of interest” means the existence of a substantial risk that a lawyer`s loyalty to or representation of a client would be materially or adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client or a third person.

This includes a substantial likelihood that the lawyer may be placed in an actual conflict of interest as the trial progresses. [ 46 ] In the present case, in her letter to the Court, counsel has indicated a clear willingness to

conduct the trial of this matter and to assert a full defence on behalf of Mr. Yates. She is clearly mindful of the fact that she entered aguilty plea on behalf of Mr. Yates to the manslaughter charge, and that this may create some ongoing legal problems for Mr. Yates. However, in my view, she does not appreciate the nature and depth of those problems regarding her acting as counsel, and she hasattempted to pick an invalid solution to those problems. She proposes, in her letter to the Court, that there should be a publication banabout this, and essentially, that everyone should be barred from discussing it.

In my view, I cannot make any such order. The guilty pleato the charge of manslaughter is a matter of public record. It is recorded on the endorsement sheet attached to that Information. Thatguilty plea is an admission by her and her client that Mr. Yates committed the offence of manslaughter in that he unlawfully caused thedeath of Miguel Lane. See R v Eastmond, (ON CA), [2001] OJ No 4353 (QL) (Ont CA). That guilty plea has neverbeen expunged. There has not even been an application to expunge that guilty plea. It remains on the public record.

Crown counselmay be able to introduce evidence of that guilty plea as an admission by Mr. Yates. I believe that Crown counsel would be entitled toraise that guilty plea to curtail counsel’s cross-examination of witnesses and to curtail an argument of complete innocence to the murdercharge. Clearly, if the guilty plea is raised at any time, Ms. Fox would be compelled to explain her actions, and explain and justify whyshe and her client are now departing from that prior position.

At that time, she would be compelled to give evidence, like in anexpungement hearing, detailing the communication between herself and her client and why the client was taking that step. I would notethat when this matter was last before me on July 4, Ms. Fox stated said she could not answer or really discuss the allegation of unethicalconduct as her client has refused to waive his Solicitor Client Privilege. This is a virtual admission that as soon as the issue of ethicalconduct or the guilty plea are raised, the interest of Ms.

Fox and her client will diverge and she will be in a conflict. [47] It would seem to me that so long as the guilty plea stands, it is an ethical impediment that prevents Ms. Fox from taking effective steps to defend Mr. Yates. I should think that defence counsel will want to consider anapplication to expunge the guilty plea. Clearly Ms. Fox cannot advise Mr. Yates on that point, or personally bring an application toexpunge. Simply stated, Ms. Fox is irreparably compromised and conflicted respecting the second degree murder charge. The guiltyplea prevents her from effectively representing Mr.

Yates; and she cannot bring an application to expunge. [48] In Willett in paragraphs 23 to 30, inclusive, Judge Faieta went through a form of analysis similar to the one that I have just made. The judge examined some of the various twists and turns that the trial could take andhow counsel would then be placed in a position of direct conflict. At paragraph 30, the judge then stated: Despite their current views to the contrary, the interests and positions of Ms. Willett and Mr. Willett may well diverge at Ms. Willet’strial.

Confidence in the administration of justice is undermined if the client is not assured, nor seen to be assured, of counsel’s undividedloyalty. In my view, the Crown has provided a sufficient basis upon which I find that there is a substantial risk that Mr. Goldstein’scontinued representation of Ms. Willett, even as a co-counsel, would be materially and adversely affected by Mr. Goldstein’s duties to hisformer client, Mr. Willett. [49] Similarly, in the case at bar, there is a substantial likelihood that if Ms. Fox continues to act as counsel for Mr.

Yates, that her and her client’s interest may diverge during the course of trial. She will be in conflict; Mr. Yatescannot be assured of her undivided loyalty. [50] For the compelling reasons listed above, there will be an order directing that counsel, Ms. Sharon Fox, withdraw as legal counsel to Mr. Yates. Further, that Mr. Yates retain new and independent counsel from an independentfirm. The matter will be adjourned for a short period of time to allow Mr. Yates to retain and instruct counsel. If Mr.

Yates does nothave the means to retain counsel, the Court will entertain an application for court appointed counsel. Dated at the City of Regina, the Province of Saskatchewan this ____ day of July, 2019. __________________________D. Kovatch, J