2021 QCCQ 1964, 2021 QCCQ 1964

R. c. Leissos 2021 QCCQ 1964 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL « Criminal and Penal Division » No: 505-01-155964-188 505-01-155965-185 DATE: March 23, 2021 ______________________________________________________________________ BY THE HONOURABLE RICHARD MARLEAU, J.C.Q., PRESIDING ______________________________________________________________________ THE QUEEN Applicant - prosecution v.

PROCOPIS LEISSOS Impleaded party Me JACQUELINE SANDERSON Respondent ______________________________________________________________________ JUDGMENT ON MOTION TO DISQUALIFY A LAWYER TO ACT ______________________________________________________________________ [ 1 ] This motion [1] is initiated by Crown and is asking to disqualify Me Jacqueline Sanderson as the accused’s lawyer. [ 2 ] Me Sanderson is representing the accused following his arrest for production of cannabis and possession of same for the purpose of trafficking [2] .

The other file is one count of breach of conditions [3] . [ 3 ] Quite a few motions were on the docket at the present hearing. Among them, defense filed a motion to disqualify the acting Crown, Me Sam Soto. Allegations of abuse of process due to her conduct so far in the file in also present. A motion for disclosure of evidence is also pending since March 2020.

Defense is also requesting a change of venue. [ 4 ] Crown answered by a motion to dismiss summarily the application to disqualify Me Sam Soto, the change of venue and the motion for abuse of process. [ 5 ] It is not useful at this moment to review all these grievances or comment on them. We need first to know if Me Sanderson is still qualified to represent the accused. [ 6 ] This being said, the main ground for Crown’s motion is that Me Sanderson will be called as a witness at trial in regard with matters that took place at the time of arrest.

We can summarize the narrative with what follows. [ 7 ] Once arrested, the accused was given his rights, including the right to a lawyer. He elected to communicate with his lawyer of choice, Me Sanderson. [ 8 ] He was allowed to do so and spoke to her. Afterwards, the accused was questioned by investigators and elected to make verbal statements. They were transcribed. The standard form used for the transcription includes standard statements that the accused had understood his rights, wanted to speak to a lawyer and that indeed he had spoken to a lawyer.

The accused would have answered yes to all questions. [ 9 ] Crown intends to introduce in evidence this statement at trial. [ 10 ] Defense position is that indeed Me Sanderson was reached by the accused. However, she was exiting the Montreal Courthouse and was not able to talk confidentially with him. He was told to stay put and that she was on her way to the police station. She would have reached the police station but was denied access to her client. [ 11 ] This

summary will suffice, since the matter has already been ruled upon. Indeed, the accused filed a Charter motion for violation of his right to an attorney, alleging that he did contact his attorney, but did not receive any legal advice. [ 12 ] Concerns in regard that Me Sanderson was a potential witness had been present following the preliminary enquiry and became more apparent once the Charter motion was filed. It was then clear that Me Sanderson had to testify and Crown presented a first motion to disqualify her for that reason.

[ 13 ] Justice Bisson of our Court was then appointed as a case management Judge as per 551.1(1) of the Code to hear the matter in March 2020. [ 14 ] Some discussions took place, including a proposition by defence that the Court hears first a motion to quash the warrant that led to the seizure of the drugs and the arrest of the accused. If successful, it could potentially end the trial and renders moot the Charter motion alleging the violation to the right to an attorney.

However, the motion to quash was not yet on record, apparently tied to a motion for disclosure that was also on the docket and had to be heard first. [ 15 ] To make a long story short, a creative compromise was reached. The Court would not hear all the motions on the docket and would put in priority the Charter motion for the right of an attorney and the admissibility of the statement. However, for that hearing, Me Sanderson would be disqualified. Afterwards, with both issues resolved, Me Sanderson would be able to continue representing the accused, her testimony being no longer required on all other matters.

The motion was remanded to allow the accused to retain counsel. The hearing took place in October 8 2020. The accused did not retain counsel and represented himself. Me Sanderson testified. [ 16 ] Justice Bisson ruled that there was no violation to the right of an attorney and rejected the Charter motion. However, he did not rule on the admissibility of the statement. [ 17 ] Amazingly, neither parties raised the omission at the hearing or since with Justice Bisson. Asked why by the undersigned, Crown did not offer any reasons.

Me Sanderson’s argument is that since she was not the attorney on record at the hearing, she could not act and it fell upon Crown to do so and file an appeal to have the matter corrected [4] . The Court begs to differ. Nothing prohibited her to notify the judge that he had omitted the statement’s issue when she realized it. [ 18 ] It did not come as a surprise. Right at the beginning of his judgment, Justice Bisson stated « … I’m not here to decide if the statement given by Mr.

Leissos was given freely and voluntarily, with a person that has an operating mind and also that it was done with the respect to all his constitutional rights » [5] . It should have raised a flag. [ 19 ] To conclude, both parties now seem satisfied that the admissibility of the statement of the accused will be a live issue at trial.

ANALYSIS OF THE FIRST RULING [ 20 ] The issues identified in March 2020 and the way it eventually proceeded in October 2020 all fall within the power of a case management judge before evidence on merits is presented as per 551.3 of the Code . [ 21 ] Also, all decisions made are binding according to

section 551.3(4) « unless the Court is satisfied that it would not be in the interest of justice because, among other considerations, fresh evidence has been adduced ». [ 22 ] Revisiting a decision already rendered remains an exceptional measure and requires that an important change of circumstances happened. And as far as the importance of the change, it must be related to a question that had justified to start with the judgment [6] . [ 23 ] We don’t have this type of new evidence that would allow review of Justice Bisson’s ruling on the Charter issue. [ 24 ] This was not brought up by the parties.

But the Court had to explore it. New evidence (such as a Supreme Court decision rendered afterwards that modifies the applicable law on the issue and would render the judgment incorrect) could have opened a review and allowed modification of the original ruling, with exclusion of the evidence (the statement) as a possible remedy. But we don’t have the grounds to go further in that direction. That road is therefore closed. [ 25 ] Failing a review, are there other options?

Unfortunately, the Court doesn’t see in the powers enumerated at 551.3 one that could enable the undersigned to order back the file to Justice Bisson or order him to specifically rule on the litigious statement’s admissibility [7] . [ 26 ] Consequently, the statement’s admissibility will indeed be a live issue at trial and still tied, for defense, to the allegation that the accused was not given legal advice when he spoke with his attorney. [ 27 ] So, what now? [ 28 ] As it was in March 2020, it is impossible to circumvent the testimony of Me Sanderson by addressing the motion to quash the warrant first.

The motion is still not served or filed. [ 29 ] Finally, the statement’s admissibility is now a trial issue. Disqualifying Me Sanderson just for that issue, as the pre-trial context in October 2020 allowed, is no longer feasible .But defense argues otherwise. DEFENSE’S ARGUMENTS [ 30 ] They are mostly contained in a Motion to dismiss the second motion of the Crown to disqualify Me Sanderson due to judgment rendered on March 10, 2020. [ 31 ] It basically review Me Sanderson’s testimony rendered at the October 8, 2020 hearing. The Court retains the following excerpts as relevant highlights : 8.

The Applicant believes that it is absurd to disqualify Me Sanderson because she is required to testify at the voirdire because it is contrary to the very spirit of the right to an attorney enshrined in the Charter . More particularly, the police violate the Applicant’s right

to an attorney and the lawyer is disqualified to act as a result of this police misconduct and the accused right’s who have been seriously violated by the police has no lawyer for the trial or for the voirdire to prove that the the rights of the accused had been violated. This is illogical and definitely could not have been the intention of the Legislature at the time of the enactment of the Charter ; (…) 13. The judgment of Justice Bisson of October 8, 2020 is 12 pages of stenographic notes and is essentially a criticism of Me Sanderson.

The Judge asserted that he was not supposed to be deciding on the credibility of the witnesses (page 7, lines 21 and 22), however, he stated that the Applicant did not meet the burden of proof (page 8, lines 1 to 5). With respect, it is submitted that if a party has a burden of proof at a hearing, then necessarily the credibility of the witnesses must be assessed; 14. Justice Bisson specifically stated that Me Sanderson did not give any advice to the accused (page 8, line 16). Justice Bisson also stated at page 5 lines 7 and 8 that “Mrs. Sanderson never told Mr.

Leissos that he had the right to remain silent, that he is not to discuss anything with the police officer, that he was not to make a statement to the police officer up until the time she would arrive at the police station ”; (…) 19. The Applicant should not be penalized and left to continue the trial without an attorney because the Court chose not to render a judgment on the said issues of the admissibility of the statement into evidence; 20. It was very clear during the hearing of March 10, 2020, that Me Sanderson would be authorized to represent Mr.

Procopis Leissos for the remainder of the proceedings except for the voirdire on the right to an attorney; 21. Me Sanderson has finished being a witness and made a very credible statement during the hearing of October 7, 2020. The Judge stated that he HAD NO DOUBT THAT ME SANDERSON WENT TO THE POLICE STATION TO SPEAK TO HER CLIENT; 22. Since Me Sanderson was not given the opportunity to meet her client and the police had an obligation to assist Me Sanderson and her client to meet with each other, the accused right to an attorney was violated.

Moreover, Justice Bisson stated in his judgment that Me Sanderson did not provide any advice to her client with respect to the right to remain silent. Therefore, evidently the statement was not provided freely by the accused; 23. Finally, it should be remembered that in R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, the Supreme Court of Canada noted at paragraph 41 that the police had an obligation to facilitate contact with the lawyer of choice of the accused.

Me Sanderson was at the police station prior to the interrogation which began around 2:00 PM, yet the police did not allow Me Sanderson to speak to her client; 24. Furthermore, the Crown did not produce any witnesses to contradict the testimony of Me Sanderson and the statement of the receptionist that she recognized Me Sanderson from having been at the police station in the past also corroborated the testimony of Me Sanderson; 25. Moreover, the accused testified that he told the police that his lawyer was on her way to the police station; 26.

During the preliminary enquiry of May 2, 2019, Me Sanderson specifically asked Mr. Luc Hovington, one of the police officer’s who had performed the interrogation of the accused after he was arrested, if the receptionist at the police station had contacted him at 13:40 to mention that Me Sanderson was at the reception to meet with her client. Mr. Hovington said “c’est possible, oui, mais je me souviens pas”; 27. Finally, Me Sanderson has already testified and been cross-examined on the issues, the stenographic notes from this hearing can be used by the trial Judge if ever such testimony is needed to be reviewed.

Alternatively, as Justice Bisson forgot to decide on the issue of the admissibility of the statement by the accused, a new hearing on the right to an attorney could be done, however, in such a case, the other motions to be filed by Me Sanderson should be heard first. [ 32 ] Relying on these arguments, Me Sanderson affirms at the hearing that she will not testify at trial. She intends to use the transcript of her testimony heard in October 2020 to argue the statement’s admissibility if necessary.

Credibility is not an issue, Justice Bisson having already recognized that, as an example, she did show up at the police station at the time of the accused’s arrest. [ 33 ] The arguments at the hearing also infer that the trial judge could or should review Justice Bisson’s judgment on the Charter issue or that a new hearing should take place for lack of having ruled on the statement’s admissibility. [ 34 ] At this point, the Court finds it hard to imagine that the trial judge would rely on the original transcript with this last scenario. But the fact that the Charter ruling is binding closes that door anyway.

The fact that the statement’s admissibility was not ruled upon cannot become ground for a disguised appeal or review of the Charter ruling. [ 35 ] Questioned by the undersigned about this reality (namely that the judgment rejected the Charter violation and is binding), and that only the rules of confessions would be considered to rule on the admissibility of the statement with no prior violation at play, Me Sanderson basically answered that the two issues are still tied together. [ 36 ] It is also of importance to note at this point that Crown would object anyway that just the transcript be used.

Without going in specifics, Crown argues that the hearing in October shed a new light on the issue and Me Sanderson would need to be cross-examined further should she be heard. [ 37 ] Finally, one has to observe also that no agreement were made by the parties to transfer the evidence heard at the voir-dire in October 2020 into the trial, as is often the case when a single judge will hear both the motions and the trial in a blended voir-dire/trial audition.

THE LAW [ 38 ] Tied to the Crown’s motion to disqualify, the accused filed personally a motion for the right of the attorney of his choice stating that he wants Me Sanderson as his lawyer for the trial. [ 39 ] The fact that the accused wants Me Sanderson as lawyer of choice and his right to retain her has been recognized, even if this right is not absolute. [ 40 ] The law on this subject is not in dispute and has been canvassed by Justice Cournoyer of the Superior Court (as he was then) in Harrison c. Di Lallo , 2013 QCCS 6092 , par. 61 to 69 .

There is no need to elaborate further, the Court adhering to these principles. The question is to assess if we are in a valid situation that could deprive the accused of this constitutional right (par. 68). [ 41 ] This being said, we are in a situation where a lawyer is implicated or a witness in his client’s case. [ 42 ] Me Sanderson affirms that Crown will not call her as a witness or compel her to testify. This is true. But it doesn’t settle the issue.

It occults that it is in the defense of the accused that she is bound to testify. [ 43 ] It is also hard to accept her statement that she will not testify by proposing that her testimony already rendered be used: there is simply no real differences between the two. It is still testimony, with credibility at play [8] . [ 44 ] Harrison c. Di Lallo was a good example of an accused with a lawyer (his brother) implicated in his case.

As in here, the fact that Crown was not going to call the lawyer to testify did not settle the issue. [ 45 ] Justice Cournoyer quoted many authorities addressing the issue of a lawyer being a potential witness or implicated in the case.

All applies here. [ 46 ] He first states that the Code de déontologie des avocats prohibits a lawyer being a witness [9] (par. 86), but that it is more the inherent powers of the Court that applies (par. 87). [ 47 ] He then continues with the following excerpts [10] : [88] Dans son ouvrage, Lawyers and Ethics: Professionnal Responsibility and Discipline, l'auteur Gavin MacKenzie décrit ainsi la portée de la règle : A lawyer should not act as counsel and be a witness in the same proceeding.

Thus, in a proceeding in which a lawyer is acting as counsel the lawyer should neither submit the lawyer’s own affidavit nor testify, except as permitted by rules of civil procedure, or as to purely formal or uncontroverted matters. A further corollary of the rule that one should not simultaneously serve as counsel and be a witness is that the lawyer should not express personal opinions or beliefs, or assert as facts anything that is properly subject to legal proof, cross-examination, or challenge.

The lawyer must not in effect become an unsworn witness or put the lawyer’s own credibility in issue. [Le soulignement est ajouté] […] [91] Les auteurs de la septième édition de l'ouvrage Annotated Model Rules of Professsional Conduct formulent des observations similaires : The prohibition against a lawyer serving as an advocate at trial and testifying as a witness in the same matter is aimed at eliminating confusion about the lawyer’s role. As an advocate, the lawyer’s task is to present the client’s case and to test the evidence and arguments put forth by the opposing side.

A witness, however, provides sworn testimony concerning facts about which he or she has personal knowledge or expertise. When a lawyer takes on both roles, jurors are likely to be confused about “whether a statement by an advocate- witness should be taken as proof or as an analysis of the proof.” Model Rule 3.7, cmt.[2]. Confusion regarding the lawyer’s role could prejudice a party or call into question the impartiality of the judicial process itself. Cottonwood Estates Inc. v.

Paradise Builders Inc., 624 P.2d 296 (Ariz. 1981) (any mixing of roles between advocate and witness “diminishes the effectiveness of the entire system [and] disrupts the normal balance of judicial machinery”). For example, courts warn of the possibility or perception that the lawyer may distort the truth for the sake of a client. See United States v. Morris, 714 F.2d 669 (7th Cir. 1983); Presnick v. Esposito, 513 A.2d 165 (Conn. App. Ct. 1986) . Courts also note that the act of taking an oath may unfairly enhance the credibility of the lawyer as advocate. See United States v.

Morris, 714 F.2d 669 (7th Cir. 1983); Bottaro v. Hatton Assocs., 680 F.2d 895 (2d Cir. 1982). Conversely, if the lawyer is not credible as a witness, his or her effectiveness as an advocate may be jeopardized. See, e.g., Gen. Mill Supply Co. v. SCA Servs., 697 F.2d 704 (6th Cir. 1982); Cottonwood Estates Inc. v. Paradise Builders Inc., 624 P.2d 296 (Ariz. 1981) . [92] L'avocat de la défense américain John Wesley Hall Jr., décrit les fondements de la règle de la manière suivante dans son ouvrage Professionnal Responsibility in Criminal Defense Practice : The rationales are simple.

First, the attorney has built-in bias which would be argued to the finder of facts. Second, it is assumed that lawyers as witnesses would bend the facts for the client or that the jury would give the lawyer's testimony too much credence. Third, the lawyer-witness role may inhibit effective cross-examination. […]

[96] La nature du problème qui se pose est ainsi décrite par la professeure McMorrow : When courts talk about role confusion, they are referring to circumstances in which the traditional functions might become impaired by multiple roles. The fact-finder may give undue weight to the testimony of the attorney. Alternatively, opposing counsel may be hampered in cross-examination.

If the lawyer chooses not to testify and presents evidence through an alternative witness, the lawyer’s participation might be so obvious to all observers that the lawyer becomes, in effect, an unsworn witness139. [Le soulignement est ajouté] APPLICATION OF THE PRINCIPLES TO THE FACTS OF THE CASE [ 48 ] The Court does not agree with Me Sanderson’s argument that she will not testify.

To repeat, be it through the transcript or viva voce, it is still testimony with credibility at play. [ 49 ] It is far from predictable that the transcript would be allowed at this point as we saw or that Me Sanderson would even be allowed to testify in light that the Charter issue has already been dealt with. Evidently, Me Sanderson intends to persist in the other direction and will not contest the admissibility of the statement simply with the rules of confessions at play. This calls for her to testify.

She says so herself. [ 50 ] We cannot entertain neither some type of accommodation to retain her as counsel on record conditional as what would be the trial judge ruling on her testimony. Even if she would be prohibited to testify, it will still be a situation where «… the lawyer’s participation might be so obvious to all observers that the lawyer becomes, in effect, an unsworn witness » as quoted above from Professor McMorrow. And if she is allowed, she will be disqualified in the middle of the trial. [ 51 ] All scenarios disqualify Me Sanderson and it needs to be addressed immediately before the trial starts.

We need to move forward on sure ground. [ 52 ] Seeing that conclusion, it not practical or advisable to address all the other motions. [ 53 ] The accused or his new attorney will decide if they are still to be argued. It could also be more practical from now on that a trial judge be assigned for both the remaining motions and the trial. FOR ALL THESE REASONS: GRANTS Crown’s application to disqualify Me Jacqueline Sanderson. DISQUALIFY Me Jacqueline Sanderson to represent the accused in both files as of now.

DISMISS the accused’s Motion of the applicant to authorize Me Jacqueline Sanderson to represent the applicant. REJECTS the Motion to dismiss the second motion of the Crown to disqualify Me Sanderson due to judgment rendered on March 10, 2020. RESERVE the rights of both parties to argue all other pending motions at a later date. __________________________________ RICHARD MARLEAU, J.C.Q Me Alexandra Guillaume Sam Soto For Crown (applicant) Me Jacqueline Sanderson For herself and the accused( impleaded party) Date of hearing: March 11 th , 2021