R. v. Brown et al., 2011 ONCJ 189

Citation: R. v. Brown et al. , 2011 ONCJ 189 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ORANE BROWN, SHANE EVANS, ORRETT FRANCIS, RASHARD GREEN, OMAR GRIZZLE, ALYSHA HAWKINS, MARLON JACKSON, BALDWIN JUNIUS, JACKLYN McRAE, MARTIN TINGLIN, ARMA TSEGAI and DALTON YOUNG Before Justice D.P. Cole Heard on March 25, 29, 31, April 1, 4, 6, 2011 Reasons for Judgment released on April 8, 2011 S. Clarke; P. Tsui .................................................................................................... for the Crown H.

Pringle appearing as Amicus Curiae ................................................................ for the accused COLE J.: [ 1 ] This is an application by the Crown pursuant to Rule 24 of the Rules of the Ontario Court of Justice in Criminal Proceedings to have 8 defence counsel removed as counsel of record for some of the accused named in the Style of Cause, on the basis that counsel are in an irremediable conflict of interest. [ 2 ] The Style of Cause lists the names of 12 accused; after the motion was filed several things happened to reduce the number of counsel against whom this application is brought from 12 down to 8.

In chronological order of occurrence:

(1) Crown counsel abandoned the application to have counsel for Martin Tinglin removed from the record

(2) Defence counsel for Dalton Young announced his intention, for personal reasons, to withdraw as counsel for the accused. Crown counsel is content to abandon the application to have that counsel removed from record, but reserves the right to re-litigate the issue, depending on Mr. Young’s choice of new counsel

(3) Alysha Hawkins has indicated her intention to enter a plea of guilty to some of the charges she faces; on that basis Crown counsel abandons the application to have her counsel removed from record. However, in the event that Ms Hawkins changes her mind and elects to continue to a preliminary inquiry, Crown counsel reserves the right to re-litigate the issue

(4) Counsel for Marlon Jackson, who testified on this motion, apparently now realizes that she is in a conflict of interest, and will be applying to remove herself as counsel. On that basis, Crown counsel is content to abandon the application to have that counsel removed from record, but reserves the right to re-litigate the issue, depending on Mr. Jackson’s choice of new counsel. [ 3 ] Given the subject matter of this motion, on the proposal and consent of both parties, I issued an order appointing counsel Pringle as Amicus Curiae to make submissions on behalf of the remaining accused persons and their lawyers.

Ms Pringle presently has no other involvement in this case. FACTUAL OVERVIEW [ 4 ] On May 4, 2010 11 of the 12 accused named in the Style of Cause were arrested (along with 75 other adults and 3 young persons) as part of a police initiative known as Project Corral. On or soon after “takedown day” these 11 accused soon retained counsel to represent them. What was common to all these counsel was that they then had a single employer – Pinkofskys Law Firm. That firm dissolved its partnership a few weeks after these arrests.

As will be seen, the first issue I am asked to consider is whether the 8 counsel against whom this application is presently maintained are so irremediably tainted by their employment by Pinkofskys for this period that they must be prohibited for acting further for their 8 clients. [1] [ 5 ] On May 25, 2010 Rashard Green was arrested as part of the same initiative. He retained a firm then known as Anthony Robbins and Associates to represent him. Since November 2010, he has been represented by Mr. Douglas Holt. As Mr.

Holt was employed by Pinkofskys on May 4, 2010, Crown counsel first argues that he too should be precluded from continuing to act for Mr. Green, on the same reasoning as the Crown seeks to apply to those counsel who were retained on (or soon after) “takedown day”. In the alternative, Crown counsel also argues that Mr. Holt should be removed from record because he is now employed by the successor firm to Pinkofskys, as described in paragraph 8 infra. [2] [ 6 ] On July 1, 2010 Mr. David Bayliss left his position as a partner at Pinkofskys and became a sole practitioner.

He had been representing Omar Grizzle since May 4, and Mr. Grizzle consented to Mr. Bayliss remaining as his counsel when Mr. Bayliss left Pinkofskys.

[ 7 ] On July 1, 2010 Mr. Carlos Rippell left his position as a partner at Pinkofskys and became a sole practitioner. On or about September 14, 2010 he was retained by Shane Evans. [ 8 ] On July 26, 2010 the remaining 9 Pinkofskys lawyers who were the original subjects of this motion left to form a new firm – now called Rusonik, O’Connor, Robbins [3] , Ross, Gorham and Angelini LLP (“RORRGA”).

Their various clients all consented to these lawyers continuing as their counsel when they created this new law firm. [ 9 ] For the various reasons indicated in paragraph 2, supra , the number of Pinkofskys/RORRGA lawyers the Crown now says are in a conflict has been reduced to 6.

They are: ACCUSED COUNSEL Orane Brown Jason Dos Santos Orrett Francis Erin Thomas Rashard Green Douglas Holt Baldwin Junius Ehsan Ghebrai Jacklyn McRae John Filiberto Arma Tsegai Christopher Angelini [ 10 ] It is common ground that Crown counsel have objected to various defence counsel continuing to act for certain accused at virtually every court appearance since May 4, followed up by letters and emails, and finally culminating in this motion. Stripped to its essence, a

summary of the bases on which the Crown asserts that the 8 counsel who remain the subjects of this motion are in a conflict of interest is specified in the Crown’s factum as follows:

i) Conflict of Interest Arising from Past Representation of Co-Accused – RORRGA LLP, David Bayliss and Carlos Rippell; and ii) Conflict of Interest Arising from Simultaneous Representation of Multiple Accused by the Same law Firm – RORRGA LLP. [ 11 ] The number of persons arrested in Project Corral is so large that there is no courtroom in Metropolitan Toronto available to accommodate joint appearances by all 88 adult accused. RSJ Bigelow has been acting as a Case Manager for the past several months to reduce the numbers of accused who will appear in court at any one time.

As a result, four separate preliminary inquiries have been scheduled to take place over the next few months. I have been assigned to preside over one of these preliminary inquiries (Group A). Because the Crown has now abandoned its application to have counsel for Mr. Martin Tinglin removed from the record in the Group A preliminary, in fact no conflicts of interest are presently alleged in the preliminary inquiry over which I am scheduled to preside. However, in order to avoid multiple proceedings, counsel have agreed that my disposition of this motion should apply to the other three preliminary inquiries.

In other words, if I rule that counsel should be removed from the record before the commencement of the various preliminary inquiries, I will make this order in place of the Justices who will preside over the other three preliminaries. SPECIFIC FACTS RELATING TO EACH LAWYER [ 12 ] Each of the 8 lawyers who are the remaining subjects of this motion filed affidavits in response to the Crown motion, upon which they were quite extensively cross-examined by Crown counsel.

It will now be convenient to summarize what several wrote and said about the issues raised by Crown counsel. (The order in which their evidence is presented reflects the order in which they testified). David Bayliss [ 13 ] Mr. Bayliss deposed that he had not represented Mr. Grizzle before May 4, 2010 (though he is now concurrently representing him in Superior Court on other charges unrelated to Project Corral). (He did a bail hearing for another Project Corral accused; Crown counsel does not pursue any allegation of conflict of interest for representing this co-accused). [ 14 ] Mr.

Bayliss testified that the word “representation”, as it applied at the Pinkofsky firm, requires some clarification. He explained that the choice of who would appear in court on a given day for Project Corral clients was largely determined by who in the Pinkofsky firm was scheduled to be at the Metro West courthouse, where Mr. Grizzle and other Project Corral accused have appeared ever since their arrest on the Project Corral charges. Thus, in early appearances immediately following arrest various lawyers and articling students (or, on two occasions, a summer student), all employed by Pinkofskys, appeared as Mr.

Bayliss’ agents. For example, the clerk’s endorsement on the Information reflects that on May 10, 2010, Mr. Aly appeared in court to remand Mr. Grizzle to another date for his next appearance; he identified himself in court as “agent for Bayliss”. [ 15 ] A more apparently substantive appearance was on June 18, 2010, where counsel Mr. Aubin appeared for Mr. Grizzle, and consented on record to an order being made that Mr. Grizzle be detained in custody pending trial. I say “apparently” because Mr. Bayliss explained in evidence that he had had numerous discussions with Crown counsel Krueger on the subject of Mr.

Grizzle’s bail, and had ultimately advised Mr. Krueger that Mr. Grizzle would be consenting to a detention order being made. Thus, when Mr. Aubin appeared as Mr. Bayliss’ agent, he was merely present to confirm on record the agreement that Mr. Bayliss had come to with Mr. Krueger. [ 16 ] Though Mr. Bayliss’ relationship with the “RORRGA” law firm is not the subject of the Crown motion to have him removed as counsel, for purposes of completeness I should point out that after the Pinkofsky firm dissolved, Mr. Bayliss entered into a space- sharing arrangement with RORRGA.

In much the same manner as before, he arranged for lawyers or students from that firm to appear as

his agent from time to time. In Mr. Bayliss’ view, these appearances by articling students and lawyers – regardless of whether they were from Pinkofskys or RORRGA - were all “administrative” or “procedural” matters involving neither application of discretion by counsel, nor the conveying of substantive information to or from Mr. Grizzle. [ 17 ] In this regard it is noteworthy that Mr. Bayliss has never personally appeared for Mr. Grizzle in relation to the Project Corral charges. On all court appearances to date, either Pinkofsky or RORRGA lawyers or students have appeared as his agents.

However, Mr Baylis testified (and the Crown accepted) that his absence from formal court proceedings does not mean that he has not continued to act for Mr. Grizzle on the Project Corral charges. In addition to the previously-referenced discussions with Crown counsel Krueger resulting in a “consent detention order”, Mr Bayliss testified that he has visited his client in custody on two occasions, and has received several telephone calls from him.

He has attended judicial pre-trial meetings with RSJ Bigelow, and he has continually been in written and telephone communication with Crown counsel dealing with this case and this motion. [ 18 ] Crown counsel extensively cross-examined Mr. Bayliss about physical “firewalls” at the Pinkofsky firm (which at the time it dissolved had some 25 lawyers as partners or employees). Mr.

Bayliss considered that there were some firewalls in that each lawyer maintained their own files; however, he conceded that client files were usually kept in a central filing system – to which, presumably, any member of the firm might have access. [ 19 ] Mr. Bayliss deposed that he arranged for a search of the Pinkofsky firm’s electronic archives to see if he had ever acted (or even in appeared in court as agent) for any of the other Respondents in this motion.

That database, which goes back to 2006 “has confirmed that none of the Respondents were my personal clients while I was at Pinkofskys and, further, that I did not appear on any court appearance for any of them”. I shall discuss the reliability of this database later in these reasons. [ 20 ] Beyond physical “firewalls”, Mr. Bayliss said that there was “an implicit understanding that in Project cases [where the Pinkofsky firm represented more than one client], people had to be careful not to discuss specific details about individual clients”.

He could recall “rare occasions” where “in a serious case [such as a homicide]” an email might be sent around the firm, cautioning lawyers not to agree to represent co-accused or knowingly represent witnesses (Crown or defence). Having said this, he properly conceded that in cases where the firm represented more than one accused, there might well be “general strategizing about defences arising from [what was available in] Crown disclosure”.

Regarding this particular case, he deposed that while at Pinkofskys he had never met or “looked at any printed or electronic materials related to the other Respondents [on this motion] or discuss[ed] their files with their lawyers at Pinkofskys”. [ 21 ] No doubt in anticipation of the Crown’s argument that “all lawyers in the firm of Pinkofskys are presumed to be one and indivisible for the purpose of sharing confidential information”, Mr. Bayliss arranged for Mr. Grizzle to receive independent legal advice from counsel Mary Cremer. As requested by Mr.

Bayliss, she reviewed the relevant Rules of Professional Conduct of the Law Society of Upper Canada with Mr. Grizzle. She also reviewed the Crown’s Application Record on this motion and the relevant portions of the affidavit of Det. Tony Azarraga (wherein he describes what he considers to be the specific allegations relating to Mr. Grizzle indicating that Mr. Bayliss can no longer represent his client). If after reviewing these materials with Mr.

Grizzle, Ms Cremer was satisfied that “the client fully understands the limitations that will be placed on counsel acting for more than one accused and the potential risks of joint representation”, and that “the accused…is sufficiently familiar with the nature of potential conflicts that could arise at the preliminary inquiry”, her remit was to have Mr. Grizzle sign a “Consent and Waiver for the purposes of a preliminary inquiry with respect to ‘Project Corral’”, and to send Mr. Bayliss a covering letter detailing her discussions with Mr. Grizzle.

All of these things were done; the letter of direction to Ms Cremer, the “Consent and Waiver” and Ms Cremer’s covering letter in reply are attached as exhibits to Mr. Bayliss’ affidavit. [ 22 ] Mr. Bayliss also made it clear that, to date, no lawyer acting for any of the co-accused has approached him expressing concern that he may be in a conflict of interest. He finally testified that, if allowed to continue to represent Mr. Grizzle (

a) he has not conveyed any plea offer made by the Crown to his client, because the Crown takes the position that they will not provide him with one until this issue of conflict of interest is resolved [4] (

b) his client has instructed him that he does not wish to give evidence at the forthcoming preliminary inquiry, and (

c) if any of the former clients of Pinkofskys involved in this motion were to give evidence at the preliminary inquiry, Mr. Bayliss would retain independent counsel – such as Ms Cremer – to cross-examine that witness. Carlos Rippell [ 23 ] Though the Crown argues that Mr. Rippell’s partnership at Pinkofskys for the period from May 4 – July 1, 2010 means that he is estopped from representing the accused Shane Evans, it is agreed that Mr. Rippell is in a considerably different position from Mr. Bayliss. Mr.

Rippell deposed that he had not appeared in court for any of the accused charged as part of Project Corral in the days and weeks following arrest, that he “did not have contact with any of the firm’s clients in relation to Project Corral, nor did I view any disclosure in relation to the Project”. He was adamant that “[p]rior to meeting with Mr. Evans [in September 2010], I had absolutely no involvement in Project Corral”. (Indeed, somewhat ironically, Mr. Evans was referred to Mr. Rippell precisely because his prior counsel, Mr.

Brian Ross, apparently responded to a Crown suggestion that the very conflict of interest now being raised by Crown counsel was sufficiently meritorious that Mr. Ross should get off the record for Mr. Shane Evans). [ 24 ] It is therefore entirely clear that there are at least two significant differences between Mr. Rippell’s situation and that of Mr. Bayliss. First, Mr. Rippell was not retained by any accused charged in Project Corral during his tenure at Pinkofskys. Second, he did not continue to represent anyone charged in that case when he left the firm.

It thus seems to me as a matter of logic that the any “taint” that applies to Mr. Rippell is somewhat less than that which the Crown wishes to assign to Mr. Bayliss. (Of course, as will be seen, the Crown’s argument is that this does not at all matter. The Crown position is that they were both equally tainted simply by their employment at Pinkofskys at the time). [ 25 ] No doubt in anticipation of the Crown’s argument that “all lawyers in the firm of Pinkofskys are presumed to be one and indivisible for the purpose of sharing confidential information”, like Mr. Bayliss, Mr. Rippell arranged for Mr.

Evans to receive independent legal advice, in this case from counsel Aman Patel. As apparently requested by Mr. Rippell, he reviewed the relevant Rules of Professional Conduct of the Law Society of Upper Canada with Mr. Evans. He also reviewed the Crown’s Application Record on this

motion and the relevant portions of the affidavit of Det. Tony Azarraga (wherein he describes what he considers to be the specific allegations relating to Mr. Evans indicating that Mr. Rippell can no longer represent his client). Though I was not given a copy of Mr. Rippell’s letter of instructions to Mr. Patel, in due course Mr.

Evans signed a document entitled “Consent & Waiver Re: Conflict of Interest Project Corral Preliminary Inquiry” accompanied by a “Certificate of Legal Advice”. [5] [ 26 ] I interrupt the narrative to make one point that I consider important in separating out the various issues at stake here. In the cross-examinations of both Mr. Bayliss and Mr. Rippell, Crown counsel Clarke spent quite a lot of time taking them through the various clerks’ endorsements on the Information about lawyers or students from the RORRGA firm having appeared for Mr. Grizzle and Mr.

Evans after the establishment of that firm on July 26, 2010. I said nothing at the time because I was uncertain where Crown counsel was heading. Having considered this further, it seems to me that this confabulates the two bases on which these two counsel are said to be conflicted. As discussed in para. 10 supra the Crown restricts its argument against Messrs. Bayliss and Rippell continuing to act due to their prior employment at Pinkofskys.

While the question of whether representatives from RORRGA have appeared for the accused Grizzle and Evans might be relevant to that firm’s continuing representation of accused in Project Corral, it seems to me, with respect, to be irrelevant to the argument raised against Messrs. Bayliss and Rippell. [ 27 ] Mr. Rippell also deposed that he had caused a check to be made of Pinkofskys’ electronic database to see if he had ever represented any of the other accused mentioned in this application.

He was informed that he had conducted two bail hearings for the accused Dalton Young on cases prior to Project Corral – one for drug charges (February 7, 2007) [6] and one for domestic assault charges (May 1, 2007). He agreed that those likely were contested hearings. Though he could not precisely recall, he said that he would not likely have obtained any confidential personal information from Mr. Young as (

a) most of the materials necessary for a bail hearing were likely from the Crown “show cause” sheets, and (

b) he would normally spend more time with sureties than with an accused at such an early stage in the proceedings. In any event, he had no memory of having acted for Mr. Young. Though he did not say it directly, I infer that if he had ever known any confidential information about Mr. Young, he had forgotten it. Having said this, I note that Mr. Young and Mr. Evans are scheduled to participate in the same preliminary inquiry (“C1”). [ 28 ] Mr. Young has apparently expressed through counsel that he has no objection to Mr. Rippell continuing to act for Mr. Evans.

I say “apparently” because, strictly speaking, when counsel for Mr. Young announced his intention to withdraw as counsel (for personal reasons), counsel’s affidavit containing this concession was withdrawn. I shall nevertheless proceed on the assumption that Mr. Young has no objection to Mr. Rippell continuing to act for Mr. Evans, because Ms Pringle filed a letter to this effect from independent counsel who had advised Mr. Young. [ 29 ] As with Mr. Bayliss, Ms Pringle brought out that Mr.

Rippell has not, to date, been contacted by any other defence counsel representing Project Corral clients to express any concern that he may be in a conflict of interest. THE “RORRGA” MOTION [ 30 ] Before going into the involvement of each of the RORRGA lawyers in this case, it will be useful to recall that unlike the situation with Messrs. Bayliss and Rippell, the Crown application to have members of the RORRGA firm removed as counsel of record is based not only on their prior employment in the Pinkofsky firm, but more significantly on their involvement as partners of their current firm.

This, says the Crown, puts them into a further conflict of interest arising from simultaneous representation of multiple accused. Christian Angelini [ 31 ] Mr. Angelini is currently retained by the accused Arma Tsegai, who wishes to have him continue to act on his behalf. He had not previously represented Mr. Tsegai before his arrest on Project Corral charges. When Mr. Angelini and several other lawyers and students from the Pinkofsky firm came to court on May 4 (and subsequent days), in response to requests from numerous accused that the firm represent them [7] , Mr. Angelini was told by duty counsel that Mr.

Tsegai wished to retain him. The clerk’s endorsement on the Information reflects that Mr. Angelini formally went on record for Mr. Tsegai on May 6, 2010. [ 32 ] Crown counsel brought out in cross-examination that Mr. Angelini had appeared in court for several other accused. For example, the clerk’s endorsements reflect that he appeared for two accused who are subjects of this motion – May 5, 2010 for Orrett Francis, and on May 7 and September 14 for Orane Brown. Crown counsel pressed Mr.

Angelini on the issue of whether before appearing in court he had taken any steps to check whether any of the accused had been previous clients of the Pinkofsky firm. He was entirely candid that he had not conducted any such checks; in fact, he presumed that some likely had been prior clients. Mr. Angelini explained that he would appear as a matter of efficient deployment of scarce resources (the phrase is mine) on behalf of other counsel if he happened to be at the court where various accused were scheduled to appear.

He described these in his affidavit as “attendances on brief administrative appearances…[during which] I did not receive any confidential information from any named parties in this application”. [ 33 ] Rather like the situation with Mr. Bayliss, I note that since that time Mr. Angelini has only appeared in court for Mr. Tsegai on one other occasion; counsel and students from either Pinkofskys or RORRGA have appeared as his agents on all other occasions (10) to date. Most importantly, another Pinkofskys partner, Douglas Usher, appeared for Mr. Tsegai to conduct his bail hearing. Mr.

Angelini could not recall exactly why this had happened; he presumed it was because he was not available. Other than this obviously substantive representation, Mr. Angelini took the position that appearances by other counsel and students from Pinkofskys or RORRGA were “administrative”. [ 34 ] Like Mr. Bayliss, Mr. Angelini was careful to point out that he has been active in his representation of his client. He has conducted two (unsuccessful) bail reviews to see if his client’s pre-trial detention could be reversed.

He has attended several judicial pre- trial meetings, and has been consistently in contact with Crown counsel about disclosure issues. He has been reviewing disclosure as it has been provided by the Crown. [ 35 ] Mr. Angelini conceded in cross-examination that he had not at any time conducted checks to see if he had previously represented any other accused named in this application. He was candid that he chose instead to rely on his memory. (Importantly, he further agreed that he had not conducted any such checks even after he had been served with the Crown’s motion materials).

[ 36 ] Though he thought that there were some sort of “conflict checker” computer programs available at Pinkofskys (and now at RORRGA), Mr. Angelini said that as far as he knew conflicts were (and are) monitored only on an ad hoc basis and only in exceptional cases. Absent something exceptional he felt that neither the computer programs nor internal emails nor individual agreements between counsel were (and are) resorted to on any regular or routine basis. I commend him for that candid concession. [ 37 ] Speaking specifically about Project Corral, Mr.

Angelini confirmed that there are no specific “firewalls” within RORRGA to safeguard confidential information, though “we are all aware that we should not discuss our [Project Corral] cases”. Because of this, he had not – and would not – discuss the specifics of Mr. Tsegai’s case with any other lawyer at the firm. [ 38 ] In speaking about physical file security at RORRGA, he said that, unlike at Pinkofskys, there is no longer any central filing system; each lawyer maintains their own files, which are kept either in a lawyer’s personal filing cabinet or, in larger cases, in a locked locker in each lawyer’s office.

Referring to individual computer workstations, he said that while there are shared drives in their computers, each lawyer has individual drives in which they may store what they choose. [ 39 ] Mr. Angelini had arranged for Mr. Tsegai to receive independent legal advice from counsel David Wilson.

A “Consent & Waiver for the Purposes of a Preliminary Inquiry with Respect to ‘Project Corral’” was appended to his affidavit. (When questioned by Crown counsel about why it seemed to come from a template used by many other “independent” counsel consulted in this case, he said that this form of Consent & Waiver had been developed in a previous “Project” case (Project Flicker), with input from a case management judge). A letter from Mr. Wilson, reciting the materials on which he had relied (virtually identical with those given by Mr. Bayliss and Mr.

Rippell to their respective “independent” counsel) was also appended to Mr. Angelini’s affidavit. [ 40 ] While the Consent & Waiver signed by Mr. Tsegai purports to be “irrevocable”, Mr. Angelini conceded that a waiver can be revoked. He also agreed that he had not sought waivers from the other accused who are the subjects of this motion. Having said this, Ms Pringle brought out in re-examination that no defence counsel had complained to Mr. Angelini that he might be in a conflict of interest. [ 41 ] Finally, Mr.

Angelini was asked what he would do if one or more accused became Crown witnesses at the preliminary inquiry. He testified that at this stage he was only prepared to “give serious consideration” to retaining independent counsel to cross-examine that accused.

This was different from other counsel, all of whom either testified or deposed that they would “have to” arrange for independent counsel in those circumstances. [ 42 ] I do not believe there would be much point in summarizing every detail of the affidavits and evidence of all 5 other lawyer witnesses who were – in one capacity or another – employees of both Pinkofskys and RORRGA, as their evidence and positions on the various points I have mentioned broadly mimics that of Messrs. Bayliss, Rippell and particularly that of Mr. Angelini. In my judgment, the evidence of Messrs.

Filiberto, Ghebrai and Holt fit into this category. Thus, in the interests of trying to produce a ruling on this motion expeditiously, I propose to comment on the evidence of Ms Thomas and Mr. Dos Santos only to the extent that their evidence brings out material issues different from that of the three witnesses whose evidence I have already described. Erin Thomas [ 43 ] Ms Thomas is presently acting for Orrett Francis, who wishes her to continue to act.

In addition to the Crown’s general concern that she is doubly conflicted by her current employment at RORRGA and her prior employment at Pinkofskys, the Crown further argues that she cannot continue to act for Mr. Francis because she acted for the accused Dalton Young at his bail hearing on these charges. Ms Thomas testified that she had taken instructions from Mr. Brian Ross, Mr. Young’s “normal” counsel. She obtained biographical information from Mr. Ross, Mr. Young and Mr. Young’s girlfriend, and information from the Crown about his prior criminal record and his outstanding charges.

Ms Thomas testified that she “had no discussion with Mr. Young about the substance of his charges”. [ 44 ] Crown counsel made one other point arising from Ms Thomas’ evidence, where she freely conceded in cross-examination that when she examined the Pinkofskys databases she “did not run any names I did not recognize”. While commending her for her candour, Crown counsel argues that this is insufficient due diligence on her part. Jason Dos Santos [ 45 ] Mr. Dos Santos is presently acting for Orane Brown, who wishes him to continue to act. He testified that he received a telephone call from a friend of Mr.

Brown, who indicated that Mr. Brown wished to retain him. He met with Mr. Brown in court cells within a few days of arrest, but did not formally appear in court for him until June 1, 2010. (In the interim, various other Pinkofskys lawyers (including Mr. Angelini) appeared in court to remand Mr. Brown’s case until a bail proposal could be put together; some of the appearances describe them as appearing as “agent for Dos Santos”). Mr. Dos Santos appeared at Mr. Brown’s bail hearing on June 8.

His client was ordered released on bail, but was unable to come up with an acceptable surety, so it was not until September 24 that a new bail proposal was put before the court and Mr. Brown was ordered released. Like others, Mr. Dos Santos has been receiving and reviewing disclosure as it becomes available, he has attended a variety of pre-trial hearings, and he has had numerous discussions with Crown counsel both about the case and about this motion. [ 46 ] Mr. Dos Santos conducted no other bail hearings in this case.

He said that when he received the Crown’s “bail package”, he noticed the names of Shane and Sheldon Evans as being co-accused with Mr. Brown. He knew that they had been Pinkofskys clients, but that he had never represented them. He stated: “obviously this was a matter of concern, but it was not looked into at this early stage in the proceedings”. He was certain that he had never represented any other accused now charged in Project Corral for anything substantive, though he had not checked any databases to confirm his recollection.

In a similar vein, he did not consider it necessary to access the Pinkofsky database to see if there might be confidential information on Mr. Brown which might compromise another Pinkofskys lawyer. He explained that: “[The information from the Crown was that] Mr. Brown had no previous record, so I did not think there would be a previous [Pinkofskys] file on him”. [ 47 ] While Mr. Dos Santos understands the logic of the Crown’s position that he is doubly conflicted by his association with both Pinkofskys and RORRGA, he testified that he has and continues to consider that he does not foresee conflicts of interest.

He said that he did not anticipate advancing a “cutthroat defence” (as between Brown and Young), Nor did he anticipate cross-examining Evans about

telephone calls allegedly involving Evans and Brown – “either the telephone calls happened or they didn’t”. [48] Like other lawyers Mr. Dos Santos arranged for independent legal advice to be provided and a waiver to be executed and filedwith the court. As it is identical in principle with that of others, I shall not bother to provide details. [49] Two days after he testified, Mr. Dos Santos had a conversation with counsel Brian Ross, who told him that he had printed out alist of who in the Pinkofsky firm had acted for Mr. Dalton Young in the past, and had discovered that Mr.

Dos Santos had acted for Mr.Young at a 2006 trial before Trotter J. Mr. Dos Santos contacted Ms Pringle to request that he be recalled “to clarify my evidencepreviously given”. Upon his return to the witness box, after reciting what Mr. Ross had told him, Mr. Dos Santos said that he has “nomemory of [having conducted the trial], and I wouldn’t know [Mr. Young] to see him”. [50] Not surprisingly Crown counsel seized on this opportunity to cross-examine Mr. Dos Santos at some length. While acceptingthat Mr.

Dos Santos had behaved in a commendable manner by coming forth as soon as he realized he had inadvertently misled thecourt, Mr. Tsui used this opportunity to bring out what he argues are considerable deficiencies in the way both Pinkofskys and RORRGAdeal with potential conflicts of interest. These require some explanation and commentary. [51] As previously indicated, Mr.

Dos Santos had originally deposed that he had “never represented any other individual named aspart of Project Corral”, that he had “not had any contact with any other individual named as part of Project Corral”, and that he had “notreceived any confidential information from any named parties in this application or project”. Mr. Tsui forcefully made the point that Mr.Dos Santos’ recantation (my word, not his) of his previous deposition and testimony is one manifestation of exactly what was and iswrong with the Pinkofskys/RORRGAs approach to potential conflicts. He first argued that Mr.

Dos Santos’ recall to the witness standgraphically demonstrates why personal recollection cannot possibly be an adequate substitute for a detailed, systematic routineapplication of a conflict of interest checklist. Crown counsel linked this lack of systematic checking with what Ms Thomas said in herevidence (described in paragraph 44, supra), to the effect that she did not “run” the names of persons she did not recognize as formerPinkofskys clients. [52] Second, Mr.

Tsui argued that the “FileMaker” calendar system employed by both firms as the primary method for determiningif there might be a conflict of interest is simply inadequate to the task. In this regard, Mr. Tsui gave as an example the fact that Mr. DosSantos relied on the Crown’s assertion that Mr. Brown does not have any previous criminal record to make the assumption that there wasno previous Pinkofskys file on the client, and that there was therefore no obligation even to look at the calendar system. What if Mr.Brown had been previously charged and acquitted or had his charges withdrawn?

Obviously there would be no criminal record, but theremight well be a Pinkofskys file. Unfortunately, experience demonstrates that accused persons are not necessarily the most reliableinformants about their previous experiences with criminal courts. [53] While I am on the subject of the FileMaker calendar system, I may as well refer to its efficacy as a “conflict checking”program. No counsel provided me, either in their affidavits or in their evidence, with any details of this element of the system.

A briefperusal of the FileMaker website reveals that, whatever may be its merits as a calendar organizing system, it does not purport in any wayto be designed to address potential conflicts of interest. As Mr. Tsui suggested – and I agree - a fair conclusion is that the partners andemployees of Pinkofskys/RORRGA adapted a program designed for other purposes to act as some sort of conflict-checking system. Ifthere were other processes or systems in place, no counsel articulated what they were, either in affidavits or in testimony.

Unfortunately,like so many of the supposed systems in place, there was insufficient or no attention to detail in this regard. (While no counsel wasspecifically asked about this, Crown counsel discovered during the case a 2008 Report of the Canadian Bar Association Task Force onConflicts of Interest on this issue; it is entirely clear that the very useful “Toolkit” contained in that Report had not been considered orapplied at either law firm. I shall return to this later in these reasons). [54] Mr. Tsui’s next points about the FileMaker calendar system, derived from the evidence of Mr.

Dos Santos and several of theother witnesses, were first that this system only apparently records the name of the last lawyer who appeared on a particular case. Hissubmission, of course, was that this makes adequate checking of who may have appeared on prior occasions impossible. Secondly, thesystem only records appearances from 2006 onwards, which similarly makes it impossible to check who might have appeared prior tothat year. Finally, Mr. Tsui put to Mr.

Dos Santos that neither he nor other witnesses would not normally do any more than access theFileMaker system, such as accessing the actual file and/or billing records, to see if there might be conflicts. [55] Mr. Tsui’s next argument arising from Mr. Dos Santos’ recall to the witness box was his candid concession that even if it wasdiscovered that other counsel in the same firm were representing co-accused, “we might discuss it” (my emphasis). In this case, even ifthe original “bail package” provided by the Crown to Mr. Dos Santos did not disclose that Mr. Tsegai is co-accused with Mr.

Brown onsome counts, as soon as subsequent disclosure revealed that they are co-accused, Mr. Tsui argued that this created an obligation for Mr.Dos Santos (and, in this case, Mr. Angelini as counsel for Mr. Tsegai) to enter immediately into serious discussions about whether either(or both) of them could continue to act. On the strength of the evidence of both Messrs. Dos Santos and Angelini, at best such adiscussion “might” occur. This, argues Mr. Tsui, is simply unacceptable, given well-established case law from various appellate courts. [56] Finally, Mr.

Dos Santos said that, though he was aware from early in the process that Mr. Brown is co-accused with formerPinkofskys clients Shane and Sheldon Evans on some counts, he did not and does not feel that there is any potential conflict, because“there’s nothing [my client] can gain from attacking [the Evans brothers]”. Mr. Tsui makes two arguments on this issue. His firstargument is that the very need for Mr. Dos Santos to return to the witness box is ample proof of the very dangers that can attach toconfidential information – that it may flow inadvertently, despite counsel’s intentions.

Secondly, he argued that the Supreme Court ofCanada decision in Martin Estate v. Martin (SCC), [1990] 3 S.C.R. 1235 stresses the need for the legal profession toavoid the public perception that a conflict either has arisen or could arise. He argues that that decision clearly establishes that for alawyer to say “trust me, I have no conflict of interest” is no longer sufficient. Since these arguments are at the core of Ms Pringle’samicus brief, I shall leave them until I commence my legal analysis. [57] In a similar vein, I shall defer consideration of whether Mr.

Dos Santos’ departure from RORRGA in March 2011 to become a

sole practitioner makes any difference. Ms Pringle says it does; Mr. Tsui says it cannot. ANALYSIS OF THE FACTS [58] In my ruling in the companion case of R. v. Stewart (March 16, 2011), I noted that all counsel, both witnesses and advocates,behaved courteously throughout in pursuit of the appropriate determination of a point of principle. I am pleased to report that the samecivility obtained in this difficult case. Though some of the questioning of the lawyer witnesses was forceful, it was never acrimoniousand was always courteous.

In what follows, therefore, it must be understood that my findings and comments are not about the individuallawyers who testified – some I have not encountered before; those who appear before me regularly are well known to me and otherjurists as hard-working, highly ethical advocates for their clients. While it is true that the individual counsel bear some professionalresponsibility for what I find to be unacceptable practices, in my judgment what the response to this motion has clearly uncovered areongoing systemic deficiencies. My criticisms of the counsel involved must be understood in this regard.

If RORRGA is to remain as apartnership which makes itself available to persons accused in these large Project cases, the partners need to take a long look at the waythey conceptualize and manage potential conflicts of interest (such as that developed by the Canadian Bar Association in its August 2008Report of the CBA Task Force on Conflicts of Interest).

To that extent, this Crown motion is very properly brought. [59] The first point which practically leaps off the page is that those counsel affiliated (in whatever way) withPinkofskys/RORRGA seem to have largely if not completely ignored the reasoning – and, more important, the thrust – of such cases asR. v. Speid (1983) (ON CA), 8 C.C.C. (3d) 18 (Ont. C.A.), R. v. Savory [1984] O.J. No. 702 (Ont. High Ct. Jus.), R. v.D. D. [2006] O.J. No. 4913 (Ont. C.J.) and R. v. Richards & Brown [2010] ONSC 531.

All of these cases – and there are others lesswell-known - not coincidentally involved various iterations of the Pinkofskys firm. Unfortunately, those connected with the firm (andnow its successor RORRGA) do not seem to have grasped – or have wilfully ignored – that loyalty to the client, as that term has beeninterpreted and applied by Canadian courts[8], is a much more complex and variegated notion than stubbornly trying to hang on to asmany clients as possible unless and until finally ordered off by a trial or appellate court.

The duties of responsible and ethical legalprofessionals in today’s climate mandate that counsel need to do much more than either the Pinkofsky or RORRGA firms appear to havedone in this case. Zealous advocacy is of course to be encouraged, but the notion that “the client’s wishes [to select and maintain counselof choice] are supreme” is no longer – if it ever was - the exclusive consideration to be made by defence counsel.

This misapprehendsthe contemporary concept of “loyalty to the client”, as that term has been interpreted by the Supreme Court of Canada, as well as theCanadian Bar Association and the Law Society of Upper Canada. [60] I fully realize that this is a harsh judgment, but the facts, unfortunately are entirely clear. [61] Let me start with a small but in my view very telling element of what I consider to be indifference to modern understandings ofconflicts of interest, most aptly brought out by Crown counsel.

All law firms are now required, following the enactment of various formsof privacy legislation, to have privacy policies in place. RORRGA has responded to this in the firm’s website where one can find thefirm’s privacy policy. Amazingly, the listed contact person is Mr. Bayliss, who, of course, is not even a member of the firm! That issimply unacceptable. [62] Secondly, as I have previously brought out, Crown counsel has been drawing the possibility of conflicts of interest to counselinvolved in this case since “takedown day”, in letters and emails, in open court submissions, finally culminating in this motion.

Infairness, it must be noted that some Pinkofskys/RORRGA counsel have properly withdrawn – for example, Mr. Brian Ross referring hisclient Shane Evans to Mr. Rippell, Ms Scott now applying (however belatedly) to be removed as solicitor of record for Marlon Jackson,following her testimony on this motion. However, the record amply discloses that despite the fact that the Crown had properly putcounsel on notice very early in the proceedings, the evidence of the witnesses clearly establishes that in response, if any checks weredone, they were inconsistently applied and very cursory. As Mr.

Dos Santos “recantation” demonstrates, they were simply inadequate. [63] I am similarly unconvinced by the argument made by several lawyer witnesses that they could not and cannot evaluate whetherthey were in a conflict until they have received full disclosure (which all agree is still ongoing, given the size and complexity of thecase).

While I can accept that some apparent conflicts of interest do dissipate as further information comes available, I have been givenno evidence or submissions that suggest to me that counsel have given much, if any thought to the “duty of loyalty” articulated by theSupreme Court of Canada in its important 2002 decision in the criminal case of R. v. Neil 2002 SCC 70 , [2002] 3 S.C.R. 631, asvery recently interpreted and applied by the Ontario Court of Appeal in Consulate Ventures Inc. v. Amico Contracting & Engineering(1992) Inc. 2010 ONCA 788 , [2010] O.J. No. 4996.

These allegations of conflict have been clear from the outset. They havebeen precisely described and reiterated on numerous occasions by Crown counsel. In my judgment, they have not been responded toadequately by some counsel.

Unfortunately, on the record before me, the apparent refusal by some counsel to turn their minds to theCrown’s concerns reminds me of the behaviour of the proverbial ostrich. [64] Even if some argument could be made that counsel have not been able to evaluate whether or not they are in a conflict, the recordis crystal clear that since the Crown announced its intention on January 17, 2011 (by way of an email to counsel) to launch this motion,some lawyer witnesses did nothing to examine their positions on an ongoing basis. Some took the view that the checks that they had

done were sufficient, even though they should have been aware that these supposed “conflict checking” programs were simply notdesigned for this purpose. At least one testified that he did not consider that there was any need to do anything until the Crown materialshad been served and filed. I have been given correspondence wherein on January 28 RSJ Bigelow directed Ms Thomas, who wasappearing as agent for all affected counsel, that affidavit materials in response to the Crown motion were to be provided, even in draftform, by February 25.

Unfortunately, the materials were still coming in as some witnesses entered the witness box in late March, andthere were even late filings after they had given evidence. Some of the affidavits ultimately filed were, to be charitable, minimalistic andnot particularly helpful. Many of the letters of independent legal advice and the accompanying Waivers bore the hallmarks of beingcobbled together at the last minute in an effort to have something on the table.

This is simply unacceptable, and in my judgmentunfortunately reflects a cavalier attitude to important professional obligations on the part of counsel responsible for preparing their ownaffidavits and addressing these complex ethical issues. (I should add that Ms Thomas should not be held responsible for this. Mr. Tsuiaccepts that she has been working almost non-stop on this case for many weeks). [65] Even if counsels’

interpretation of their duties of loyalty to their clients, and the related need to keep their client’s affairs as privateas possible, may have provided the impetus for their generally delayed response to the Crown’s threat to bring this motion, it seems tome that counsel could easily have gone to the Law Society’s Practice Advisor for an advance opinion as to whether they were in aconflict. I do not mean to single out Mr. Angelini particularly, but since he was the most senior partner at RORRGA who testified, Iconsidered it necessary to ask him whether any thought had been given to taking this route.

As I expected, he candidly confirmed that asfar as he knew, this had not ever been considered. This too is disappointing. As counsel should be aware from the well-known and hotlydebated case of R. v. Murray (ON SC), [2000] O.J. No. 2182 (Ont. Sup. Ct.), the Professional Conduct Committeeand the Practice Advisor exist in part to enable counsel to seek confidential advice in difficult ethical circumstances.

If counsel did notfeel that they were in a conflict, they could – and in my view should – have used these valuable resources if they did not feel comfortabledisclosing any of their reasoning in an affidavit or under cross-examination.

The fact that they did not, combined with what I havedescribed in the last few paragraphs, in my judgment amply justifies the description of counsels’ behaviour as ostrich-like. [66] The question remains, however, whether, despite these obvious and troubling deficiencies in the attitudes and actions of defencecounsel, this now means that counsel should be estopped from acting further. It is to this that I now turn. LEGAL ANALYSIS [67] Before commencing on this analysis, I should point out that counsel have cited some 75 cases and policy documents.

Though Ilooked at some of this material when I considered the companion case of R .v. Stewart, supra, much of it, particularly from the defenceside, is new. Given that one of the preliminary inquiries that may be affected by my ruling is scheduled to start in three weeks, I amunder particular time constraints to make a decision. Thus, my legal analysis must perforce be somewhat perfunctory, which I fear doesnot address in a detailed way either the subtleties outlined in the case law, or the excellence of the submissions of counsel.

To them, tothe accused and to those who may later read these reasons, I say that I hope they will understand the need for a speedy decision. [68] Both counsel agreed that the various ethical standards articulated by Canadian courts and legal regulatory bodies start from theconcept that the right of choice of counsel in our society is (

a) an important right raising constitutional implications, and (

b) one thatshould not be lightly interfered with, except for very good reasons. Similarly, both counsel accepted that there is no absolute rule thatcounsel from the same law firm may not appear for persons accused of the same offences.

It all depends on the nature of therepresentation (a “set date”, a Crown or judicial pre-trial, a bail hearing, a preliminary inquiry, a trial, or even an appeal) and the issuesinvolved (a joint defence, a “cutthroat” defence, potential cross-examination of a former client of a particular lawyer, or potential cross-examination or finger-pointing against another accused represented by the same law firm).

The permutations and combinations ofpotential factors are considerable. [69] In evaluating this, let me say straight away that I reject the notion that appearance for more than one accused in the early stages ofa criminal prosecution automatically means that lawyers associated with one firm are inevitably tainted. Perhaps in a perfect world thatdegree of fastidiousness might prevail, but this is not the world of Canadian criminal law – particularly in an era of declining governmentcontributions to legal aid funding. As Nordheimer J. commented in R. v. Bogiatzis (2002) (ON SC), 162 C.C.C. (3d)374 (Ont.

S.C.J.): “There is also a practical aspect to this issue that must be considered. One can envisage any number of instances where co-accused might “share” or “borrow” each other’s counsel for certain limitedpurposes. A bail hearing is one such instance….While such sharing may give rise to the possibility of a conflict in the most technicalsense, from a practical view such proceedings might well become unmanageable without the ability of counsel to cover for each other insuch a fashion.

While I do not mean to undermine the importance of counsel avoiding conflicts of interest, I believe the court has to becognizant of not adopting rules or procedures of such strictness that they only serve to build delay into the system” (para. 16).

Thus, on the record before me, I can find nothing wrong with counsel from the then Pinkofskys firm appearing for various accused in the first few days and weeks following “takedown day”. [ 70 ] The more difficult question arises in defining at what stage may counsel be precluded from acting. In this particular case, an interesting contrast may be drawn with respect to that unfortunately rather busy accused Dalton Young [9] . As previously discussed in paragraph 27, supra , Mr. Rippell had appeared as counsel at two bail hearings for Mr. Young prior to Project Corral.

Even though Ms Thomas ultimately wound up representing Mr Orrett Francis in relation to this Project, she appeared as defence counsel for Mr. Young at his bail hearing on the Project Corral charges. In the cases of both these counsel Mr. Tsui makes two arguments. The first is that counsel must be compromised because they must have obtained confidential information about their clients. In both cases, counsel said that they did not receive (or cannot recall receiving) any confidential information from Mr. Young himself.

More importantly, though they did not say it directly, neither said that they had received any information from Mr. Young that they might now anticipate using against him at any stage of this case. In my judgment, such representations of fact should be accepted from counsel who Crown counsel properly concedes conduct their business ethically and professionally. (For what it is worth, I concur with Crown counsel’s assessment of Mr. Rippell and Ms Thomas). [ 71 ] But Mr. Tsui raises still another point arising from the Supreme Court of Canada’s jurisprudence articulated in Martin Estate and R. v.

Neil (especially para. 21 ). He asks whether Mr. Young and members of the general public would consider it appropriate that lawyers who had previously represented Mr. Young should now appear for other accused, potentially in opposition to him. Were this to be a forthcoming trial I think Crown counsel has an excellent point. But, as I said in my reasons in R. v. Stewart , the proceeding I am dealing with here is a series of preliminary inquiries, where the issues are rather different.

Though counsel need to be vigilant about the potential for conflicts of interest, having given much as much thought to this issue as the limited time in which I have to make this decision permits, I do not consider that the Crown has established that there is a “realistic” possibility for conflict at this stage. [ 72 ] Mr. Tsui makes the further point that Nordheimer J.’s decision in R. v. Bogiatzis must now be taken to have been overruled by the Supreme Court of Canada’s decision in R. v. Neil , both decisions having been released on the same day. I have given careful consideration to this, and while Mr.

Tsui is right to make the point, I come back again to the fact that neither in case law, nor in the Law Society of Upper Canada’s post- Neil reworked Rules of Professional Conduct (nor, to the extent that they are binding, various pronouncements of the Canadian Bar Association ), make any absolute prohibitions against counsel representing another client after having appeared at a bail hearing for a co-accused.

Thus, subject to some re-examination of actual and potential conflicts of interest, I am satisfied that Ms Thomas (and others) may remain as counsel. [ 73 ] (Crown counsel makes the additional point that in my previous ruling in R. v. Stewart , I ordered that counsel Goldlist, who had conducted a bail hearing for another accused, could not appear to represent Mr. Stewart at his preliminary inquiry. Mr. Tsui suggests that to permit Ms Thomas to remain on record would be inconsistent with that ruling.

I acknowledge the point, but distinguish that aspect of the Stewart case on the basis that I had no affidavit from the affected counsel (Ms Goldlist) that she had conducted any conflict checks of any form. Even though I am not yet satisfied with Ms Thomas’ conflict checks, she has at least made an effort, and, as discussed below, I think that further checks on her part may place her in a position where she can continue). [ 74 ] Nor am I satisfied that Mr. Rippell’s prior representation of Mr. Dalton Young at two pre-Project Corral bail hearings means that he should be estopped from acting.

In coming to this conclusion I have not forgotten that Mr. Young and Mr. Evans will be participating in the same preliminary inquiry. However, I am satisfied that the mechanisms Mr. Rippell either has or is prepared to put into place are generally sufficient for purposes of the preliminary inquiry. (Nevertheless, as I said in the companion case of R. v.

Stewart , it should be open to the Crown to renew their application either before the Justice conducting the preliminary inquiry or before the trial judge, should the case proceed to that stage). [ 75 ] More generally, Crown counsel has made considerable argument why Mr. Rippell should be ordered removed as counsel for Mr. Evans because of his employment at Pinkofskys from May 4, 2010 to July 1, 2010. I have come to the conclusion that at this stage of the proceedings Mr. Rippell need not be removed as counsel.

He says that while he was of course employed at Pinkofskys at the time this case originated, his attention was diverted to other cases. Crown counsel did not attack his assertion that he had nothing to do with any Project Corral accused during the time he was at Pinkofskys. He has no direct involvement with RORRGA, so the question becomes whether his prior involvement at Pinkofskys should estop him from acting. Having considered the matter, I am satisfied that a reasonable person, appraised of the facts that emerged in evidence, would not conclude that Mr.

Rippell is so “tainted” that it is clear that he must be removed. [ 76 ] I have found the question of whether Mr. Bayliss should be permitted to continue to act for Mr. Grizzle to be a somewhat more difficult issue to resolve. What I go back to in the end is the concept that an accused’s right of choice of counsel should not be interfered with without due cause having been established.

Although it is a case quite close to the line, I have decided, with some reluctance, that the Crown has, at this stage, failed to demonstrate why I should invoke the extraordinary process of depriving the accused of his choice of counsel. Nevertheless, like the situation with Mr. Rippell, it should be open to the Crown to renew their application either before the Justice conducting the preliminary inquiry or before the trial judge (should the case proceed to that stage).

[ 77 ] I now turn to the situation of the other lawyers who are said to be tainted by their employment at both Pinkofskys and RORRGA. Let me start by saying that, having considered the various arguments, while I acknowledge that there are some minor factual differences between Messrs. Holt and Dos Santos and the other lawyers, conceptually I can see no difference between them and the other lawyers in this category. [ 78 ] I also want to reiterate that I am disappointed with the way some of these lawyers have responded to the Crown’s properly raised concerns about whether they may be in a conflict of interest.

The overall picture presented by their response to those concerns and their response to this motion is simply not what should be expected of responsible members of the bar. Nevertheless, recognizing that this is a preliminary inquiry, I have generally concluded that the Crown has not established that they must be removed from record at this stage.

I am particularly attracted to a series of proposals advanced by Ms Pringle – some derived from case law, some from common sense – that I think (with some tweaking) will hopefully resolve these issues prior to the preliminary inquiry. [ 79 ] In my judgment four steps need to be taken before counsel may continue with this case. [ 80 ] First, all counsel who are the subjects of this motion (and any counsel who may become involved in this case in the future [10] ) need to conduct a thorough examination of prior and current client files to determine whether they may be in a conflict of interest, and to compare this with the names of all co-accused and known witnesses (police and civilians).

Without purporting to lay down firm rules (as I have not heard submissions on point) I suggest that the “Toolkit” found in the aforementioned CBA Report on Conflicts of Interest might be a useful starting point , as might some consultation with the Law Society’s Practice Advisor. [ 81 ] Second, well in advance of the particular preliminary inquiry where they intend to appear as counsel, counsel named in this motion (and others who may become involved for some of these accused) must prepare and forward to the Crown a detailed explanation of the methodology they have undertaken to ensure they are not in conflict.

I fully appreciate that insisting that there be scrutiny by the Crown is unusual, but, given the regrettable history of some counsels’ approach to this matter, some minimalist formulaic statement coming down to “trust me” is simply not acceptable. [ 82 ] Third, if Crown counsel is not satisfied with the steps that have been taken, Crown counsel should be at liberty to bring this to the attention of the Justice assigned to preside at the particular preliminary inquiry where the accused is to appear. [ 83 ] Fourth, if despite these checks some presently unforeseen conflict of interest arises during the preliminary inquiry, Crown counsel should be at liberty to renew its application to have counsel removed before the presiding Justice. [ 84 ] In the event any of the accused are committed for trial at the end of the preliminary inquiry, Crown counsel should be at liberty to renew its application before the trial judge.

DISPOSITION [ 85 ] Pending satisfactory completion of the steps outlined in paragraphs 80-83, supra , the Crown applications to have counsel for Shane Evans (Carlos Rippell), Orrett Francis (Erin Thomas), Rashard Green (Douglas Holt), Jacklyn McRae (John Filiberto) and Arma Tsegai (Christopher Angelini) are dismissed. Normally, these accused would now be remanded to the date set for the commencement of the “C1” preliminary inquiry, namely May 2, 2011.

However, as some counsel indicated in their testimony that they have other commitments set to proceed in May, and that they may therefore wish to take advantage of RSJ Bigelow’s arrangement to start their preliminary inquiries in September, I will remand these 5 accused to appear before RSJ Bigelow on April 26, in 203 court at 9:00 a.m. I do hope that counsel will be in touch with Crown counsel conducting the “C1” preliminary well in advance of that date. [ 86 ] Pending satisfactory completion of the steps outlined in paragraphs 80-83, supra , the Crown application to have Mr.

David Bayliss removed as solicitor of record for Mr. Omar Grizzle is dismissed. Mr. Grizzle is also scheduled to have a preliminary inquiry as part of the “C1” group. As I have no note that Mr. Bayliss is unavailable in May, I propose to remand Mr. Grizzle to May 2, 2011 for the commencement of his preliminary inquiry. However, this should be confirmed with RSJ Bigelow on April 26 in 203 court at 9:00 a.m. [ 87 ] Pending satisfactory completion of the steps outlined in paragraphs 80-83, supra , the Crown application to have Mr. Jason Dos Santos removed as solicitor of record for Mr. Orane Brown is dismissed.

I note that Mr. Brown is scheduled to have a preliminary inquiry as part of the “C2” group commencing at Old City Hall on June 20, 2011. Subject to hearing from counsel, I would propose to

remand him directly to that date. [ 88 ] Pending satisfactory completion of the steps outlined in paragraphs 81-83, supra , the Crown application to have Mr. Ehsan Ghebrai removed as counsel of record for Mr. Baldwin Junius is dismissed. I note that Mr. Junius is to have his preliminary inquiry as part of the “B1” group, which is scheduled to commence on July 18, 2011. Subject to hearing from counsel, I would propose to remand him directly to that date. [ 89 ] Also before me today is Mr. Marlon Jackson.

Subject to counsel’s views, I am content to order that counsel Ms Katie Scott be removed as solicitor of record at her request. He is part of the Group “B1” preliminary inquiry, which is scheduled to commence on July 18. He is directed to appear before RSJ Bigelow on April 26 in 203 court at 9:00 a.m. to report on and hopefully confirm arrangements for new counsel. [ 90 ] Also before me today is Mr. Dalton Young. Subject to counsel’s views, I am content to order that counsel Mr. Brian Ross be removed as solicitor of record at his request. Mr.

Young is part of the Group “C1” preliminary inquiry, which is scheduled to commence on May 2. He is similarly directed to appear before RSJ Bigelow on April 26 in 203 court at 9:00 a.m. to report on and hopefully confirm arrangements for new counsel. [ 91 ] Also before me today are Mr. Neigabe Stewart and Mr. Martin Tinglin. They are part of the Group “A” preliminary inquiry.

They are remanded to commence their preliminary inquiries before me on May 30, 2011 in 203 court at 10:00 a.m. [ 92 ] Finally, I seek the views of counsel as to when and where Ms Alysha Hawkins should next be remanded for her guilty plea. **** [ 93 ] I would be remiss if I did not take a minute to commend counsel for the excellence of their presentations. Mr. Tsui and Mr. Clarke took their R. v. Boucher obligations most seriously. Ms Pringle is to be commended for doing a first-rate job in presenting her case in the very limited time frame she had available.

Counsel have made my task considerably easier to manage. Released: April 8, 2011 Signed: “Justice D.P. Cole” [1] I should make it clear from the outset that Crown counsel stipulated throughout that while the lawyers who are the subjects of this motion (and, in some case, their associates or partners) have been retained by other persons accused as part of “Project Corral”, the Crown has no objection to them continuing to represent those accused, because they are not charged either with conspiracies or with offences relating to being a member of a criminal organization.

This application relates only to these lawyers’ continuing representation of those accused persons named in the Style of Cause, all of whom are charged with offences of this nature.