R. v. Frolovs, 2011 ONCJ 42

COURT FILE No.: Toronto DATE: 2011-02-03 Citation: R. v. Frolovs, 2011 ONCJ 42 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ILJA FROLOVS Before Justice Fergus ODonnell Heard on 27 January, 2011 Reasons for Judgment released on 3 February, 2011 Mr. Iain Sunderland.............................................................................................. for the Crown Mr. Michael Simrod................................................................... for the defendant, Ilja Frolovs ODonnell, J.: 1. We live in a small world. Mr. Frolovs is charged with assault and mischief.

The complainant is his ex-girlfriend. His lawyer isMr. Simrod. Mr. Simrod knows the complainant; she was an independent paralegal who has appeared from time to time to setdates on his behalf. The Crown has applied to have Mr. Simrod removed as counsel, contending that this coincidence ofpersonalities puts Mr. Simrod in a conflict of interest.2. The Crown’s materials, which were not drafted by Mr. Sunderland, do not include any evidence. Most significantly, there is noaffidavit from the complainant.

There is no indication in either the Crown’s materials or the Crown’s submissions that thecomplainant has even been consulted about this issue.3. In general terms, a conflict of interest will exist when a person’s duty and self-interest conflict, or when two duties conflict. In thecontext of the legal profession, conflict of interest arguments typically relate to a concern that a lawyer acting for one party may bein possession of confidential information arising from an antecedent relationship with another party.

In this context, it is usuallyargued, the lawyer cannot maintain his ongoing duty of confidentiality to the former client without compromising his dutyvigorously to represent his present client.4. The competing standards applied by common-law courts to the disqualification of counsel for fear of the misuse of confidentialinformation are canvassed in the decision of the Supreme Court of Canada in MacDonald Estate v. Martin (SCC),[1990] S.C.J. No. 41. There are two basic tests. The less exacting test will find a conflict only where there is a probability ofmischief arising from the use of confidential information.

The more demanding test, which has been adopted as the law in Canada,will find a conflict based on the mere possibility of mischief arising from the lawyer’s possession of confidential information. That is the test I must apply. 5. In MacDonald Estate, the Supreme Court of Canada suggested that two questions typically need to be asked.

The wording of thequestions might vary slightly depending on the factual situation and the particular relationship involved, but the questions are: “(1)Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?

(2) Is there a risk that it will be used to the prejudice of the client?” Obviously, while the antecedent confidential relationship inMacDonald Estate involved acting as counsel, other circumstances and other relationships could undoubtedly give rise to conflictsof interest. However, not everything that might be considered in the vernacular as a “confidence” will necessarily create a conflictof interest. The nature of the relationship in which the confidentiality arose will typically be of great significance.6.

In argument, I commented upon the absence of any affidavit evidence from the complainant and asked the Crown whether thatwas relevant to my determination of the conflict issue. The Crown pointed to paragraph 46 of the MacDonald Estate decision assupport for the proposition that once the antecedent relationship with counsel is shown, there is a rebuttable presumption thatconfidential information was imparted unless the lawyer, in this case Mr. Simrod, demonstrates that no confidential informationwas imparted.7. There is no doubt that the Supreme Court of Canada says precisely what the Crown attributes to them.

However, that utterancerelates to the evidentiary burden and presumption in a conflict of interest involving a previous lawyer-client relationship. This isnot a one-size-fits-all scenario. A Shetland pony and a Clydesdale are both “horses”, but one would never contemplate using aShetland pony as a dray horse. Equally so, the evidentiary rules relating to whether or not relevant and confidential informationhas been imparted in a previous employment relationship are not necessarily the same as those relating to whether or not suchinformation has been imparted in a previous solicitor-client relationship.

8. The Supreme Court of Canada in MacDonald Estate presumes the sharing of confidential information unless the lawyer provesotherwise because it is almost always inherent in the nature of the relationship between a lawyer and her client (1) that confidentialinformation will be shared, and, (2) that it is mutually understood that such confidences will, almost without exception, never bebreached. In that context, it is entirely reasonable to require the lawyer who says there were no confidences shared to prove thatfact.

There is an incredibly broad range of “confidential” relationships and of “confidences” that might be shared. The lawrecognizes the importance of some of these confidences in privileges such as the lawyer-client privilege, the spousal privilege andmore recently the case-specific potential for a privilege between a journalist and his confidential source.[1] The law does not,however, recognize every supposedly private exchange as deserving of a privilege and not every such exchange will necessarilycreate a conflict situation for counsel.9.

The relationship between a lawyer and an independent contractor who occasionally sets dates for him in court is so vastly differentfrom the relationship between a lawyer and a former client as to be a horse of an entirely different colour. There is absolutelynothing in the nature of that relationship that presupposes the existence of any duty of confidentiality or the sharing of confidences,by which I mean confidences that are recognized by the law as deserving of particular protection.

Assuming that suchcommunications even occurred in this case, which is entirely speculative, in the absence of a legally protected relationship,“confidences” about one’s life, for example, are not presumptively the sort of confidences that create a potential conflict ofinterest.[2] Accordingly, the rebuttable presumption applied by the Supreme Court of Canada in MacDonald Estate has no role inthe circumstances of this case.10. The general expectation of the law is that he who alleges bears the burden of proof.

In this case, it is the Crown that alleges aconflict of interest arising out of a seemingly innocuous, intermittent agency relationship between the complainant and Mr.Simrod. In its application materials the Crown describes a series of hypothetical scenarios of “confidential” information thatmight have been shared between the complainant and Mr. Simrod. In the absence of any specificity or any concrete assertion thatsuch confidences were shared, the whole construct seems lighter than air. The Crown relies on R. v. Stewart [1997] O.J. No.1084.

It bears noting that Stewart recites a formidable phalanx of facts to demonstrate the existence of a conflict as opposed to themere whisper of possibilities and “perhaps”-es upon which the Crown relies in this case.11. It must be kept in mind that what the Crown seeks to displace with this absence of evidence is nothing less than Mr. Frolovs’sright to counsel of his choice.

While the right to counsel of choice is by no means absolute and while I would not hesitate for aninstant to displace it if there were any plausible evidence of a conflict of interest, such a vital personal interest cannot yield tounsupported and speculative contentions of conflict of interest. It is not the place of the state or of the court lightly to interferewith a relationship as important as that between a lawyer and his client.12.

The Crown’s written materials contend that the present, “situation is analogous to defence counsel cross-examining a complainantwho is a former client.” The short answer to that contention is, “no, the two situations are not at all analogous.” They are, to thecontrary, as different as chalk and cheese. In the language of the Court of Appeal for Ontario in R. v. Widdifield (ON CA), [1995] O.J. No. 2383 at paragraph 33, the record before me falls far short of demonstrating any “realistic risk of aconflict of interests” here. If the Crown wishes to displace Mr.

Frolovs’s counsel of choice for an alleged conflict of interest wherethere was no previous solicitor-client relationship or another relationship otherwise justifying the presumption of confidentialitythat was applied in MacDonald Estate, it will require evidence that the alleged conflict is more than a mere imagining.13. The Crown’s application to have Mr. Simrod removed as counsel is dismissed. Released: 3 February, 2011 Signed: “Justice Fergus ODonnell”