R. v. Singh, 2019 BCPC 210

Citation: R. v. Singh 2019 BCPC 210 Date: 20190903 File No: 232689-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. SINGH HARBHAGWAN SINGH, PARGAT SINGH and RANJODH SINGH RULING ON APPLICATION OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: J. Ladha Appearing for the Accused: S. Kalkat, agent for B. Mohan, Counsel for H. Singh Appearing for the Accused: H. Rehlan, Counsel for P. Singh Appearing for the Accused: M. Sandhu, Counsel for R. Singh Place of Hearing: Surrey , B.C. Date of Hearing: August 28, 2019 Date of Judgment: September 3, 2019

INTRODUCTION [ 1 ] The Crown applies for an order disqualifying Mr. Brij Mohan, as counsel for Mr. Harbhagwan Singh, the respondent in this application. [ 2 ] Mr. Harbhagwan Singh, along with his two co-accused, Mr. Pargat Singh and Mr. Ranjodh Singh, were charged on February 25, 2019, by Information No. 232689-1, with one count of committing assault of Risha Mehta, on or about January 1, 2019, at or near Surrey, in the Province of British Columbia, contrary to

Section 266 of the Criminal Code . [ 3 ] Mr. Mohan initially represented all three accused, but by July 2, 2019, Mr. Pargat Singh and Mr. Ranjodh Singh retained their own counsel. The two co-accused take no position with respect to this application, except that counsel for Mr. Pargat Singh indicated that his client is concerned about the delay that would be caused if this application were to be granted. BACKGROUND [ 4 ] The following is a

summary of the background information and facts, which the parties do not dispute: 1. The assault is alleged to have taken place in the vicinity of the Tim Hortons restaurant, at 7288 King George Boulevard, in the City of Surrey. 2. Cst. Lee, one of the arresting officers, who happened to be in the vicinity when the alleged assault was in progress, is said to have personally witnessed Mr. Harbhagwan Singh deliver a blow to the complainant, but he is said not to have seen the other two co- accused deliver any blows to the complainant when Cst. Lee arrived at the scene. 3.

The police arrested the three accused on January 1, 2019, at the scene of the alleged assault. 4. The complainant alleges that all three accused were involved in beating him for about 15 to 20 seconds. 5. The three accused retained Mr. Mohan as their counsel with respect to their assault charge. 6. By March 1, 2019, Mr. Mohan was on record as counsel for all three accused. 7. On or about March 20, 2019, Mr. Mohan initiated resolution discussions with Crown, on behalf of each of the three accused, making representations about the nature and level of involvement of each of them in the alleged assault. 8.

On or about March 20, 2019, the Crown raised with Mr. Mohan concerns about possible conflicts with respect to Mr. Mohan’s joint representation of the three accused. 9. Between March 20 and 21, 2019, the Crown and Mr. Mohan discussed the need for the three accused to get independent legal advice and affidavits before resolution discussions could continue. 10. Between March 21, 2019 and June 24, 2019, the three accused received independent legal advice, and informed Mr. Mohan that they were aware of the risks of joint representation, but still insisted that Mr. Mohan represent them. 11.

On or about June 24, 2019, the Crown indicated to Mr. Mohan that it intends to bring an application to court to disqualify him. 12. On or about June 25, 2019, the Crown received waivers from the three accused, but it responded that those were insufficient to address the conflict concerns it had. 13. On July 2, 2019, when the matter was in court, the defence indicated that the two co-accused had their own counsel, and that Mr. Mohan will continue to represent Mr. Harbhagwan Singh. The Crown indicated that it was ready to arraign. 14. On or about July 10, 2019, the Crown indicated to Mr.

Mohan that, upon further review, an application to disqualify was still necessary if Mr. Mohan intends to continue to represent Mr. Harbhagwan Singh. 15. On or about July 12, 2019, the Crown and the defence discussed the issue and this application was scheduled. ISSUE [ 5 ] The issue in this application is: should Mr. Mohan be disqualified from continuing to act as counsel for Mr. Harbhagwan Singh on the assault charge under Information No. 232689-1? DISCUSSION The Crown’s Position [ 6 ] The Crown’s position is that Mr.

Mohan is clearly in a conflict of interest position, as the two co-accused have already shared confidential information with him, and he made representations to the Crown on their behalf during resolution discussions. [ 7 ] The Crown states that criminal trials are dynamic, and that, as the court noted in R. v.

Cocks , 2012 BCSC 1336 , it takes little imagination to realize that one of the strategies that may be available to one or all of the accused is to minimize their own involvement in the alleged crime, and that such a strategy may often result in an attempt to shift some or all blame to the other accused persons, and may manifest itself in cross-examination of a witness, or of each other if any of the accused choose to testify, or even in the giving of

evidence, should any of them choose to testify. [8] In this respect, the Crown offers the following three scenarios for consideration: Scenario 1 Either or both of the co-accused take the stand to address their presence at the scene, and they say they tried to stop Mr. HarbhagwanSingh from carrying out the assault – this could leave Mr. Mohan to cross-examine his former clients. Scenario 2 Mr. Harbhagwan Singh wants to give evidence that he attended the scene only to speak with the complainant, but the other two co-accused started the assault – this could leave Mr.

Mohan in a situation where if he were to call his client to give evidence, that evidencemay implicate his former clients. Scenario 3 Mr. Harbhagwan Singh and at least one of the other two co-accused are being sentenced. To reduce their own moral culpability, either orboth of them wish to shift blame to the other for how the events unfolded – this could leave Mr.

Mohan to advocate against the interestsof his former client. [9] The Crown submits that these scenarios are real possibilities, and are not speculative, as the respondent argues. [10] The Crown also submits that if these conflict issues are raised mid-trial, requiring Mr. Mohan’s withdrawal at that time, therewould likely be a mistrial, resulting in delay. [11] It says it has brought this application at the earliest time possible, and that the trial in this matter has not yet been scheduled. [12] The Crown relies on the approach and decision of the court in Cocks.

The Respondent’s Position: [13] The respondent relies on the following cases: MacDonald Estate v. Martin, (SCC), [1990] 3 S.C.R. 1235; R. v.Neil, 2002 SCC 70 , [2002] 3 S.C.R. 631; R. v. Brown [Second application to remove counsel], [1998] O.J. No. 6270; Reginaand Speid, (ON CA), 43 O.R. (2d) 596; R. v. Chen, (ON SC), 53 O.R. (3d) 264; R. v. Cocks,[2012] B.C.J. No. 1858; R. v. Luk, [2008] B.C.J.

No. 2528; and Strother v. 3464920 Canada Inc., 2007 SCC 24 , [2007] 2S.C.R. 177. [14] He says the threshold for removing counsel for reasons of conflict of interest is a high one, and that the standard to be met is“the possibility of real mischief” according to McDonald Estate, or as it is sometimes referred to as “the substantial risk test” accordingto Neil.

He says a realistic risk of a conflict of interest requires that the evidence be more than theoretical or strictly speculative. [15] The respondent argues that the two co-accused were merely bystanders at the scene of the alleged assault, and that they werewrongfully accused and charged. He says the two co-accused did not provide any confidential information to Mr. Mohan; they simplydenied any involvement in the alleged assault; and, furthermore, there is no independent evidence that they took

part in the allegedassault. [16] He submits that nothing in Mr. Mohan’s representations to the Crown during resolution discussions will affect either of the twoco-accused’s ability to make a full answer and defence. He argues that the scenarios that the Crown offers as giving rise to potentialconflicts are merely theoretical or speculative, and have no evidentiary basis. [17] In light of these circumstances, the respondent submits that he should not be deprived of his right to the counsel of his choice.He asks that the Crown’s application be dismissed.

The Law: [18] In assessing the merits of a disqualification order, the court must balance the individual’s right to select counsel of his ownchoice, public policy and the public interest in the administration of justice, and basic principles of fundamental fairness: Speid, p. 1,para. 6. [19] I have reviewed all of the cases the parties rely on with respect to this application. The Cocks’ case, being the most recent one,references many of the other cases the respondent relies on. In Cocks, the court, at para. 10, provides a useful

summary of the legalprinciples applicable to an application for a disqualification order. I repeat these principles here for ease of reference, and also becausethey guide me in determining this application: 1. The right to counsel of choice is vital and important, but it is not an absolute right and is subject to reasonable limitations: R. v. Speid(1983), (ON CA), 3 D.L.R. (4th) 246 (Ont. C.A.) and R. v. Robillard (1986), (ON CA), 28 C.C.C.(3d) 22 (Ont. C.A.). 2. There is no absolute bar to joint representation of co-accused by one or more lawyers of the same firm. 3.

The over-arching principle of public confidence in the administration of justice requires that a lawyer who represents a client be freefrom any conflict of interest: Robillard, Speid. 4. There is a heavy onus on the defence to ensure that there is no conflict arising from the joint representation of co-accused: R. v. W.W.,

(1995), (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.). 5. There is an obligation on the Crown to raise a disqualification issue at the earliest possible stage. 6. The issues of timing do not detract from the importance of deciding the conflict on its merits once presented. It is the fundamentalfairness of the criminal trial which is the paramount concern. 7. The court has an inherent and supervisory jurisdiction to ensure that legal proceedings are fair and conducted in a manner that appearsfair to the public.

As an exercise of supervisory jurisdiction, a court is always required to consider the public interest and the need forpublic confidence in the administration of criminal justice. 8. The constitutional right to counsel includes the right to effective counsel: W.W. In particular, public confidence in the administration ofjustice requires that a lawyer who represents a client be free from any conflict of interest. The mere appearance of a conflict mayundermine public confidence in the administration of justice: R. v. Neil, 2002 SCC 70, Speid. 9.

The court will also take steps to support public confidence in the administration of justice by avoiding later conflicts that might emergeand thereby result in a mistrial. 10. Once there has been a relationship of concern established between the retainers in which a lawyer is involved, there is a rebuttablepresumption that relevant confidential information was in fact received by counsel. In that circumstance, the court should infer thatconfidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. 11.

The court's degree of satisfaction must be such that it would withstand the scrutiny of the reasonably informed member of the publicthat no such information is passed. The burden must be discharged without revealing the specifics of the privileged information. Thedoor should not be shut completely on a solicitor who wishes to discharge this heavy burden. That wording, partly paraphrased, comesfrom the case of MacDonald Estate v. Martin, (SCC), [1990] 3 S.C.R. 1235. 12. The foundation of the lawyer-client relationship rests on the duty of loyalty which includes the duty not to divulge confidentialinformation.

The duty of loyalty may operate to disqualify counsel from accepting another retainer where the interests of two clients arematerially adverse. 13. The threshold for removing counsel for reasons of conflict of interest is a high one. A litigant cannot be deprived of his choice ofcounsel without good cause, compelling reasons or in exceptional circumstances: MacDonald Estate. 14. The standard to be met is "the possibility of real mischief", that is from MacDonald Estate, sometimes referred to as "the substantialrisk test", from R. v. Neil.

A realistic risk of a conflict of interest requires that the evidence be more than theoretical or strictlyspeculative. 15. The question of whether a conflict exists, which will be of concern for the court, depends on the facts in each case: R. v. Brown, 1998CarswellOnt 5908 (Ct. J. (Gen. Div.)). 16. A waiver which may be signed by the clients in such cases must be considered as a factor in terms of whether or not there is someunfairness which may operate with respect to the clients, and in terms of the context of the greater issue of public confidence: R. v. Con-Drain Co.

(1983) Ltd., 2008 ONCJ 114. 17. Even with a waiver, there may sometimes be untenable conflicts which could materialize.Even the word irrevocable may not necessarily result in an ultimate finding of irrevocability. [20] First of all, what is a conflicting interest? [21] The Code of Professional Conduct for British Columbia, which is the governing document concerning professionalresponsibility for British Columbia lawyers, in effect since January 1, 2013, (the “Code”),

Chapter 3, addresses a lawyer’s duty to avoidconflicts of interest. This rule reflects the principle articulated by the Supreme Court of Canada in Neil and Strother that the parties havereferred to. Rule 3.4-1 of the Code, and the commentary on it, in part, read as follows: 3.4 Conflicts Duty to avoid conflicts of interest 3.4-1 A lawyer must not act or continue to act for a client where there is a conflict of interest, except as permitted under this Code.

Commentary [1] As defined in these rules, a conflict of interest exists when there is a substantial risk that a lawyer’s loyalty to or representation of aclient would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, ora third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to clientrepresentation arising from the retainer.

A client’s interests may be seriously prejudiced unless the lawyer’s judgment and freedom ofaction on the client’s behalf are as free as possible from conflicts of interest. [2] A lawyer should examine whether a conflict of interest exists not only from the outset but throughout the duration of a retainerbecause new circumstances or information may establish or reveal a conflict of interest. [3] The general prohibition and permitted activity prescribed by this rule apply to a lawyer’s duties to current, former, concurrent andjoint clients as well as to the lawyer’s own interests. Representation

[4] Representation means acting for a client and includes the lawyer’s advice to and judgment on behalf of the client . The fiduciary relationship, the duty of loyalty and conflicting interests [5] The value of an independent bar is diminished unless the lawyer is free from conflicts of interest. The rule governing conflicts of interest is founded in the duty of loyalty which is grounded in the law governing fiduciaries. The lawyer-client relationship is a fiduciary relationship and as such, the lawyer has a duty of loyalty to the client.

To maintain public confidence in the integrity of the legal profession and the administration of justice, in which lawyers play a key role, it is essential that lawyers respect the duty of loyalty. Arising from the duty of loyalty are other duties, such as a duty to commit to the client’s cause, the duty of confidentiality, the duty of candour and the duty not to act in a conflict of interest.

This obligation is premised on an established or ongoing lawyer client relationship in which the client must be assured of the lawyer’s undivided loyalty, free from any material impairment of the lawyer and client relationship. [6] The rule reflects the principle articulated by the Supreme Court of Canada in the cases of R . v. Neil 2002 SCC 70 and Strother v. 3464920 Canada Inc. 2007 SCC 24 , regarding conflicting interests involving current clients, that a lawyer must not represent one client whose legal interests are directly adverse to the immediate legal interests of another client without consent.

This duty arises even if the matters are unrelated. The lawyer client relationship may be irreparably damaged where the lawyer’s representation of one client is directly adverse to another client’s immediate interests. One client may legitimately fear that the lawyer will not pursue the representation out of deference to the other client, and an existing client may legitimately feel betrayed by the lawyer’s representation of a client with adverse legal interests.

The prohibition on acting in such circumstances, except with the consent of the clients, guards against such outcomes and protects the lawyer client relationship. … [ 22 ] The threshold for removing counsel for reasons of conflict is a high one.

The standard to be met is "the possibility of real mischief" (or sometimes referred to as the “substantial risk test”); the term “mischief” refers to the misuse of confidential information by a lawyer against a former client; this approach is based on the precept that justice must not only be done but must manifestly be seen to be done; if it reasonably appears that disclosure might occur, this test for determining the presence of a disqualifying conflict of interest is satisfied : MacDonald Estate , para. 19 . [ 23 ] The respondent agrees with the proposition that a single lawyer should not represent three co-accused, but says, the question of whether a conflict of interest exists, depends on the facts of each case, citing Brown . [ 24 ] In looking at the facts in the respondent’s case, there is no dispute that all three accused were clients of Mr.

Mohan at least until June 25, 2019. Between June 25, 2019 and July 2, 2019, the two co-accused obtained new counsel. [ 25 ] I do not accept the submission that Mr. Mohan did not receive any confidential information from the two co-accused. [ 26 ] Confidential information is discussed in Rule 3.3-1 of the Code .

This rule and the commentary on it, in part, read as follows: 3.3 Confidentiality Confidential information 3.3-1 A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless: (

a) expressly or impliedly authorized by the client; (

b) required by law or a court to do so; (

c) required to deliver the information to the Law Society, or (

d) otherwise permitted by this rule. Commentary [1] A lawyer cannot render effective professional service to a client unless there is full and unreserved communication between them. At the same time, the client must feel completely secure and entitled to proceed on the basis that, without any express request or stipulation on the client’s part, matters disclosed to or discussed with the lawyer will be held in strict confidence. . . . [3] A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client.

The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them. [4] A lawyer also owes a duty of confidentiality to anyone seeking advice or assistance on a matter invoking a lawyer’s professional knowledge, although the lawyer may not render an account or agree to represent that person. A solicitor and client relationship is often established without formality.

A lawyer should be cautious in accepting confidential information on an informal or preliminary basis, since possession of the information may prevent the lawyer from subsequently acting for another party in the same or a related matter. (See rule 3.4-1 Conflicts.) [ 27 ] It is hard to fathom how Mr. Mohan could have engaged in resolution discussions with the Crown on behalf of the two co- accused, without first receiving some information about their presence at the scene of the alleged assault and the nature and extent of

their involvement or non-involvement in the alleged assault itself, provided some legal advice to them, and sought their instructions regarding any resolution options. Any information exchanged in this context would be confidential information. [ 28 ] I conclude that Mr. Mohan did receive confidential information from the two co-accused. [ 29 ] Mr. Mohan accepts that if the positions between the co-accused were to become adverse, he would need to withdraw. [ 30 ] I agree with the Crown that there is a realistic risk of conflicts arising in the future as the trial progresses.

The three scenarios that the Crown has put forward are not theoretical or strictly speculative, particularly in light of the fact that the complainant is alleging that all three accused participated in the assault of him.

This certainly has the potential for the interests of the three accused to collide with each other, contrary to the respondent’s submission that they do not, and would not, collide. [ 31 ] In this context, the following passage from Brown , at para. 15, is instructive: Where a trial judge is satisfied there is any realistic risk of a conflict of interests emerging at trial arising from the joint or successive representation of two accused by one counsel, the lawyer must be removed from the record for either or in some cases, both of the accused.

In deciding this issue the trial judge must, to some extent speculate as to the issues which may arise at trial and, in general, the course of the trial itself. The task is a difficult one because the court may not be privy to all of the information bearing on these issues. In ruling on such an application it is important to be mindful of the principles underlying this rule of law – the need to maintain the high standards of the legal profession and the integrity of the justice system balanced against the right of a litigant not to be deprived of counsel of choice without good cause. . . .

The emergence of a nascent conflict of interest can have disastrous consequences for the fairness of the trial of an accused even if he executed a waiver with the assistance of independent counsel. Such a development may require a mistrial to give proper recognition to the right to the effective assistance of counsel. A mistrial in a case of this complexity and length would seriously undermine the public confidence in the orderliness of the administration of justice. . . . [ 32 ] The Crown before me made a similar argument, and I agree, that any conflicts that may arise mid-trial would result in Mr.

Mohan having to withdraw or be removed, and a mistrial likely declared, causing unnecessary delay. Needless to say, as the court in Brown noted, such a development can have disastrous consequences for the fairness of the trial for all accused, and undermine the public confidence in the orderliness of the administration of justice. [ 33 ] Counsel for the respondent and Mr. Pargat Singh, raised concern that disqualifying Mr.

Mohan now would cause delay in the respondent having to find new counsel, and this matter being dragged out farther than it already has, adding to the stress the three accused have been experiencing. [ 34 ] In response to this argument, the Crown says while there may be some delay now for the respondent to get new counsel, this delay may not be as impactful compared to any delay that may be caused by any conflicts that may arise mid-trial. Furthermore, the Crown points out that the two co-accused were able to get new counsel within a matter of a week. I agree.

As the court noted at para. 71 in MacDonald Estate , “any client who must seek new counsel, will suffer from inconvenience, loss of time and the inevitable worry and concern over such a change. . . . The requirement of change imposed on a client is, on balance, a small price to pay for maintaining the integrity of our system of justice.” [ 35 ] I reiterate that the over-arching principle of public confidence in the administration of justice requires that a lawyer who represents a client be free from any conflict of interest. It is regrettable that Mr.

Mohan failed to see the untenable position he put himself in in accepting the retainer from all three accused involving the same incident, particularly when the complainant in this case has been alleging that all three accused participated in the assault. Under these circumstances, as I have noted above, there is a substantial risk that Mr. Mohan’s loyalty to, and representation of, Mr. Harbhagwan Singh, would be materially and adversely affected by Mr. Mohan’s duties to his former clients, the two co-accused, thereby prejudicing his client’s interests. CONCLUSION [ 36 ] In balancing Mr.

Harbhagwan Singh’s right to select counsel of his own choice, the public policy and the public interest in the administration of justice, and the basic principles of fundamental fairness, in all the circumstances of this case, I conclude that Mr. Mohan must be disqualified from continuing to act as counsel for Mr. Harbhagwan Singh in this matter. ORDER [ 37 ] I grant the Crown’s application and order that Mr. Mohan be disqualified from continuing to act as counsel for Mr. Harbhagwan Singh on the assault charge under Information No. 232689-1. ____________________________ The Honourable Judge V.

Chettiar Provincial Court of British Columbia