2023 QCCA 389, 2023 QCCA 389

Leissos c. R. 2023 QCCA 389 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007785-221 ( 505-01-155964-188 ) MINUTES OF HEARING DATE: March 24, 2023 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. SIMON RUEL, J.A. BENOÎT MOORE, J.A.

APPELLANT/IMPLEADED PARTY COUNSEL Procopis Leissos Mtre Jacqueline Sanderson A bsent RESPONDENT/APPLICANT COUNSEL HIS MAJESTY THE KING Mtre Marie-Audrai Joset ( Director of Criminal and Penal Prosecutions ) Absent IMPLEADED PARTY COUNSEL Jacqueline Sanderson Unrepresented Absent DESCRIPTION: Application for disqualification of counsel ( s. 683(3) Cr.C .) Clerk at the hearing : Chloé Côté-Sauvageau Courtroom: Pierre-Basile-Mignault HEARING Continuation of the hearing held on March 20, 2023. The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 3. Conclusion of the hearing.

Chloé Côté-Sauvageau, Clerk at the hearing JUDGMENT [ 1 ] The impleaded party, Jacqueline Sanderson, is a lawyer and was disqualified from representing the accused (the appellant) at trial. The Crown filed a motion to disqualify her from representing him in the present appeal as well. [ 2 ] It is pertinent to know that she testified at a voir dire on the issue of the appellant’s right to counsel, at which time she mentioned her unsuccessful attempt to speak with the appellant at the police station after his arrest.

This was a major argument in her client’s legal challenge. [ 3 ] After the disqualification, the appellant was represented by a new lawyer who, one year later, was present with the appellant when he pleaded guilty pursuant to an agreement in which the parties made a joint submission and suggested imposing a 90-day sentence of imprisonment to be served intermittently. The judge of the Court of Québec agreed with this submission. [ 4 ] The impleaded party filed a notice of appeal on behalf of the appellant.

Strangely, she did not raise the circumstances of the guilty plea; she only raised the issue of the judgments ordering her disqualification, dismissing the argument that her client’s right to a lawyer was violated and prohibiting the cross-examination of the affiant of the affidavit on the basis of which a search warrant had been issued.

In other words, the appeal pertains solely to the interlocutory judgments, but does not question the validity of the guilty plea. [ 5 ] When questioned on these matters at the hearing, the impleaded party stated her willingness to waive the appeal of the judgment on the right to counsel and limit herself to the appeal of the judgment on the search warrant.

She was of the opinion that, by doing so, she could not be disqualified on appeal. [ 6 ] As a matter of fact, between the hearing of the motion and this judgment, the impleaded party filed an amended notice of appeal in which she waived the issue of the judgment on the right to counsel, limiting herself to raising the violation of the rules of natural justice in connection with her disqualification, the bias of the judge who presided over the voir dire , and the other judgments.

The amended notice of appeal also alleges ineffective assistance of counsel in connection with the guilty plea, but such a ground of appeal requires leave under s. 675(1)(a)(iii) Cr.C . [ 7 ] The genuine issue, however, has not been addressed: Can a lawyer who testified during the trial and whose credibility and competence were the subject of comments by the judge be authorized to plead the case on appeal?

Is there not, at the very least, a situation of conflict of interest between the interests of the lawyer and those of her client, as well as an apparent lack of the minimum degree of distancing expected of a lawyer? It bears noting that s. 76 of the Code of Professional Conduct of Lawyers provides that a lawyer cannot represent a client in a dispute in which the lawyer testifies as a witness unless it is on matter of very little importance.

That is not the case here. [ 8 ] In the present file, the duty of loyalty to the client is undermined, even if the client says he wants to be represented by the impleaded party. It is questionable whether the impleaded party has the required impartiality, particularly since she instituted civil proceedings jointly with her client seeking damages from the police force and the Director of Criminal and Penal Prosecutions.

In those proceedings, the impleaded party alleges, among other things, damage to her reputation. [ 9 ] All these circumstances are such as to cast doubt on the impleaded party’s compliance with her duty, as a lawyer, to act in the interests of the sound administration of justice. FOR THESE REASONS, THE COURT: [ 10 ] GRANTS the motion; [ 11 ] DISQUALIFIES Mtre Jacqueline Sanderson from representing the appellant, Mr. Procopis Leissos, in the present appeal. FRANÇOIS DOYON, J.A. SIMON RUEL, J.A.

BENOÎT MOORE, J.A.