Her Majesty the Queen - v. -, 2011 SKPC 131

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 131 Date: September 20, 2011 Information: 24429356 and 24429355 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Diane Amundson (Information #24429356) Her Majesty the Queen -and- Armand Leigh Hounjet (Information #24429355) Appearing: Ms. M. McCallum For the Crown Mr. W. Selnes For the Accused DECISION B. MORGAN , J

INTRODUCTION: [ 1 ] Each of Ms. Amundson and Mr. Hounjet are charged, on separate Informations, as follows: Attempt to defeat the course of justice in a judicial proceeding by offering to pay financial remuneration to Stephanie Andersen who was expected to be a witness if Stephanie Andersen provided the Court and/or a peace officer with information that was incorrect or not truthful, contrary to s. 139(2) of the Criminal Code . [ 2 ] Each of Ms. Amundson and Mr. Hounjet has elected trial by a Court comprised of a Queen’s Bench judge and jury, and each has requested that a preliminary inquiry be held.

Each has retained Mr. Selnes. [ 3 ] The Crown has brought an identical application on each of these matters, seeking an order that Mr. Selnes “not act for both Ms. Amundson and the co-accused in this matter, Armand Hounjet on the preliminary inquiry and trial”. Whether or not I will make such an order is the issue in this decision. [ 4 ] On two preliminary points, this decision will refer only to whether or not Mr. Selnes can act on the preliminary inquiry, as, leaving aside any other issues, such as whether or not there will even be a trial, my jurisdiction does not extend beyond the preliminary inquiry.

As well, the accused are “co-accused” only in the sense that one could assume, in looking at the respective Informations, that each is alleged to have committed the same offence at the same time. However, as they are charged separately, on separate Informations, they remain independent of each other procedurally. Rather than write two separate decisions, as the matters were argued together and the reasoning is the same on each matter, this decision will be appended to each of the Informations.

POSITION OF THE PARTIES: [ 5 ] The Crown argues that there is a real possibility of a conflict arising in this case, as Ms. Amundson has provided a statement to the police, and she may be called as a witness at the trial of Mr. Hounjet. It is the intention of the Crown to call Mr. Hounjet at the preliminary inquiry for Ms. Amundson, and to call Ms. Amundson at the preliminary inquiry for Mr. Hounjet. [ 6 ] The Crown argues that if there is a realistic risk of a real or apparent conflict, Mr. Selnes cannot act. This is so, it is argued, notwithstanding that each of Ms. Amundson and Mr.

Hounjet have signed waivers acknowledging that each of them wish to have Mr. Selnes represent them. The Crown argues that allowing Mr. Selnes to act for both parties could raise concerns on the part of the public, and states it is preferable to deal with this application at this stage in order to minimize prejudice to either the Crown or the accused, and to avoid potential delay of the proceedings. [ 7 ] Mr.

Selnes argues that the waivers referred to are quite extensive in that each of his clients state they wish to have him continue to represent them, and that he has advised each of them that they should seek independent legal advice on whether there is a conflict of interest in having him represent each of them. Each of them have consulted separate counsel, discussed the issue of conflict of interest involving Mr. Selnes, and each has specifically stated that he or she is of the view there is no conflict of interest, and each waives the right to have counsel other than Mr. Selnes.

Each acknowledges that there is no confidential information in the defence that is not known to the other, and each states they have a common defence to the charge. Each states there is no conflicting evidence between the two individuals that will be presented in their defence to these charges, and each states that, if called to testify against the other, each grants Mr. Selnes the right to cross-examine him or her. The waiver concludes by stating “I give this waiver irrevocably and with the knowledge it cannot be withdrawn in the future”. [ 8 ] Mr.

Selnes argues that there is no adversarial position that could arise in this matter, and that the fact of the waiver is relevant to consider in looking at the public perception of matters. He argues that this Court should decline to make the order, as it has not been established by the Crown that there is a risk of any impropriety. Further, he argues that, although jurisdictionally this matter

can be brought before a preliminary inquiry judge, until such time as a preliminary inquiry is conducted, and there is some evidenceprovided by the Crown, it would be improper to make the order. [9] Each party has filed a number of cases, for which I thank counsel, as these were helpful in my deliberations. The Crownrelies on the following cases: R. v. Speid, (ON CA), 1983 CarswellOnt 116, 37 C.R. (3d) 220, 8 C.C.C. (3d) 18 (C.A.) R. v. Robillard, (ON CA), 1986 CarswellOnt 1032, 23 C.R. (3d) 364, 28 C.C.C. (3d) 22 (C.A.) R. v.

W. (W.), (ON CA), 1995 CarswellOnt 983, 43 C.R. (4th) 26, 100 C.C.C. (3d) 225 (C.A.) R. v. Brown, 1996 CarswellOnt 552 (O.C.J.) R. v. Neil, 2002 SCC 70 , 2002 CarswellAlta 1301, [2002] 3 S.C.R. 631, 6 C.R. (6th) 1, 168 C.C.C. (3d) 321 R. v. Gabriel Marshall and Monica Marshall, 2002 SKQB 107 R. v. Chen, (Ont. S.C.) [10] The defence relies on the following cases: R. v. Quick, (BC CA), [1993] B.C.J. No. 1205, 82 C.C.C. (3d) 51 (C.A.) R. v. Graff, 1993 ABCA 57 , [1993] A.J. No. 85, 80 C.C.C. (3d) 84 (C.A.) R. v. Le, (BC CA), [1993] B.C.J. No. 24, 78 C.C.C. (3d) 436 (C.A.) R. v. Li, [1993] B.C.J.

No. 2312 (C.A.) R. v. Dix, [1998] A.J. No. 291, 1998 ABQB 92 R. v. Pangman, [1999] M.J. No. 418 (Q.B.) DISCUSSION AND ANALYSIS: [11] The jurisdiction for a judge at a preliminary hearing to remove counsel is contained in section 537(1)(i), which allows thejudge to “regulate the course of the inquiry in any way that appears to the justice to be consistent with [the Criminal Code]...” (see para.8 of Robillard). [12] The concern of the courts has been expressed in various ways.

In Chen, citing Robillard, it was noted that...“ [T]he court isalways required to consider the public interest and the need for public confidence in the administration of justice”. That quote goes on tostate: Public confidence in the criminal justice process would surely be undermined by any appearance of impropriety in the conduct of thetrial or any lack of fairness in the cross-examination of a witness.....[t]he necessary public confidence in the administration ofjustice....rests on the fundamental fairness of the ...criminal trial process.

It requires not only the avoidance of professional improprietybut also the avoidance of any appearance of impropriety (see para. 29 of Chen). [13] As was further noted in Chen, referring to the W.(W.) decision, there is a fundamental distinction between how that test isapplied prior to trial, and how it is applied after trial. In the latter case, the question is whether or not the accused had a fair trial, adecision that can be retrospectively examined, with the benefit of a trial transcript and knowledge of what actually occurred.

This mostoften occurs in a situation in which the fact of joint representation at trial is a ground of appeal from conviction. In the former case, that

is, before the trial is held, the concern is with existing and actual conflicts of interest, or “potential conflicts that may develop as the trialunfolds” (see para. 30 of Chen). [14] A number or factors need to be looked at. As a prime example, an accused person has the right to counsel of his or herchoice. However, that right is not absolute, and is subject to reasonable limitations. Further, an accused has “... no right to counsel who,by accepting the brief, cannot act professionally” (see para. 16 of Speid).

Although there “can be no absolute bar against the jointrepresentation of co-accused, joint representation puts counsel’s obligation of undivided loyalty to each client at risk” (see para. 26 of W. (W.), citing R. v. Silvini (1991), (ON CA), 9 C.R. (4th) 233, 68 C.C.C. (3d) 251 (Ont.

C.A.)). [15] A review of the cases makes clear that the problems often arise when a lawyer who represents more than one client on a trialmay be placed in exactly that impossible position of having to choose which client to be loyal to, as a lawyer has to put his client’sinterests above all others; this situation can arise when a lawyer is representing two clients on the same trial and one client implicates theother.

Another common scenario arises in those cases in which a lawyer is required, at trial, to cross-examine a former client, theconcern here being that improper use could be made of confidential information that lawyer would have respecting that former client. Lawyers are bound by rules of professional conduct but these rules, although helpful as being instructive on the question of professionalstandards, are not binding on the courts. [16] There is no limit to the number of individual situations in which these types of problems can arise, as attested to by the casesfiled in this application.

Whereas those cases are instructive as to the principles to be applied, none of them has a definitive answer. Thedecision always requires an exercise of discretion based on proper principles. [17] In Brown, the Court was dealing with an application to remove a solicitor based on a concern respecting the potential forimproper use of confidential information arising out of prior representation.

The Court noted at para. 7 that “...[I]n ruling uponapplications of this nature the test to be applied is whether a reasonably informed member of the public would be satisfied no improperuse of confidential information will occur”. I think that statement capsulizes the inquiry to be made in this case, in which I must beconcerned with public confidence in the administration of justice. [18] Dealing specifically with this case, I note firstly that the possibility of Mr. Selnes being put in a position of dividing hisloyalties is not significant.

Both accused have received disclosure, and each maintains that they have a common defence; they are in thebest position to know that. Mr. Hounjet obviously knows, based on the disclosure, what is contained in the statement of Ms. Amundsonwhich the Crown intends to use as evidence. Both accused have decided that they wish to have Mr. Selnes represent them, and theirwishes should factor into the equation. On the face of things, there is nothing inherent in this situation that would lead me to concludeMr.

Selnes will be placed in a situation, at the preliminary inquiry, that would require him to consider placing one client’s interests overthe other. [19] Second, at this stage, there are two separate accused, each of whom wishes to have a preliminary inquiry. Thus, neither of theaccused are in jeopardy of being convicted, and perhaps losing his or her liberty, at this stage; the worst that could happen is that one orboth will be committed to stand trial. If that occurs, the situation can be re-assessed, based on what the actual situation is.

The trialjudges would thus be in a much better position to assess the situation, based on the record of each preliminary inquiry, and what counselcan argue based on what they then know. Alternatively, based on what transpires, defence counsel may decide that he cannot continue toact on one or both matters, rendering a further application moot. This reasoning would apply equally, in this case, if the parties werejointly charged on the same Information. [20] Third, and somewhat connected to the first two points, this application lacks an evidentiary basis.

Counsel did proceed onthe strength of submissions made, which is not in and of itself inappropriate, but the fact remains that the application remains based onconjecture. [21] Fourth, each accused has executed a waiver, and each has done so after consulting with separate independent counsel. Awaiver is not in and of itself determinative of the application, but it is a factor to be considered in looking at what a reasonably informedmember of the public would think.

The assurance of each of the accused in his or her respective waiver that there is no confidentialinformation in his or her defence that is not known to the other certainly alleviates the concern on that score. The waivers put to rest anysuggestion that either of the accused is not informed of the situation.

[ 22 ] Fifth, this is not a case in which there are multiple accused, with different charges and/or different motives, or a case that has any appearance of being particularly lengthy. The complexity and length of a case, and the effect that a problem at trial might have on the other co-accused, is a consideration. Here, if a problem did arise at a preliminary inquiry, that would not have any significant adverse effect on others. It might necessitate a second proceeding, which would be an inefficient use of court time, could inconvenience witnesses, and could entail extra expenses for each of the accused.

However, on balance, the risks are negligible. [ 23 ] Sixth, there is a benefit of one lawyer representing each accused at this time. Some costs can be shared. The two accused, who claim to have a common defence, will be better able to advance that in the manner they wish, and each will be better able to control his or her respective proceeding. [ 24 ] In looking at all the circumstances of this application, I am not satisfied that this is an appropriate case to grant the order sought by the Crown at this time. The application is dismissed.

Nothing in this decision prohibits the Crown from bringing a similar application to a trial judge, based on what transpires in the future. B. Morgan, J