R. v. Harper, 2022 BCPC 188

Citation: R. v. Harper 2022 BCPC 188 Date: 20220624 File No: 36538-1 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RONNIE HARPER, WILLIAM SELLARS, EDWARD THOMAS, MACKENZIE THOMAS, AND EARLTHOMAS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. STANFORD Counsel for the Crown: A. Clarkson Counsel for the Defendant: G. Wool Place of Hearing: Williams Lake , B.C. Date of Hearing: June 16, 24, 2022 Date of Judgment: June 24, 2022 [ 1 ] The Crown seeks to disqualify George Wool from acting as defence counsel for the five accused in this matter.

[ 1 ] The Crown seeks to disqualify George Wool from acting as defence counsel for the five accused in this matter. [ 2 ] Mr. Wool represents two other accused on two separate “companion” fisheries files – for a total of seven defendants (three files), on allegations arising from the same time frame for possessing sockeye salmon during a period of Department of Fisheries prohibition related to a major mudslide at Big Bar, B.C. The Crown alleges the conflict was “triggered” when during a trial of one of the accused on a separate fisheries file, evidence from Mr.

Wool’s witness at this trial was elicited and agreed to by Mr. Wool that was against the interest of his clients on this parallel and related fisheries file. [ 3 ] The trial for these five accused is scheduled to commence July 11, 2022, for 4 days. BACKGROUND [ 4 ] The Crown alleges that in June and July 2019, the Department of Fisheries and Oceans (the DFO) issued Aboriginal communal fishing licenses to the Tsilhqot’in National Government, the Toosey Indian Band and the Northern Shuswap Tribal Council Society to fish salmon in the Chilcotin River for food, social, and ceremonial purposes (FSC).

Due to severe conservation concerns arising from a landslide at Big Bar, B.C., DFO ceased issuing FSC licences.

All FSC, recreational and commercial fishing was prohibited upstream of the landslide, including the Chilcotin River. [ 5 ] On September 5, 2019, Roger Solomon, was charged with allegedly being in possession of sockeye salmon from the Chilcotin River in contravention of Fisheries Act or Regulations (s. 33 of the Fisheries Act ). [ 6 ] On the same day, Thomas Billyboy was also alleged to be in possession of sockeye salmon from the Chilcoltin River in contravention of the Fisheries Act or Regulations (s. 33 of the Fisheries Act ). [ 7 ] On September 13, 2019, Earl Thomas, Edward Thomas, Mackenzie Thomas, Ronnie Harper, and William Sellers were allegedly found to be in possession of sockeye salmon from the Chilcotin River in contravention of the Fisheries Act or Regulations (s. 33 of the Fisheries Act ) for possession of sockeye salmon.

It is alleged that four of the defendants uttered that they were fishing for food at the time of their arrest. [ 8 ] All seven individuals were subsequently charged under the Fisheries Act or Regulations (s. 33 of the Fisheries Act ). [ 9 ] Mr. Wool is defence counsel on all three court files and all seven defendants. The Crown and the witnesses for the Crown are the same on all three files. [ 10 ] Mr. Solomon’s trial commenced on October 1, 2021. At its continuance November 18, 2021, evidence from Mr.

Wool’s witness testified under cross examination that members of the Williams Lake Indian Band had “no jurisdiction” to fish on the Chilcoltin River. Four of the five defendants on this application are from Williams Lake First Nations. Mr. Harper is from Onion Lake First Nation in Saskatchewan and is alleged to be driving the vehicle with other defendants. [ 11 ] According to the transcript from that day, Mr.

Wool objected to this evidence indicating it was “inviting argument,” suggesting this was about band politics, then went on to confirm the witness’ evidence “…and as he said, they have no jurisdiction there.” LAW [ 12 ] Beginning with general principles, Crown included in their authorities excerpts from the Law Society’s Code of Professional Conduct for British Columbia.

The Canons under the Standards of the Legal Profession set out the duties to the client under 2.1-3, which states in part: “A lawyer must not act where there is a conflict of interest between the lawyer and a client or between clients.” [ 13 ] Further under Rule 3.4-1 Conflicts: Duty to Avoid Conflict. “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.” [ 14 ] Under Commentary for this Rule, of note: [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 a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a 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 client representation arising from the retainer.

A client’s interests may be seriously prejudiced unless the lawyer’s judgment and freedom of action on the client’s behalf are as free as possible from conflicts of interest. [3] The general prohibition and permitted activity prescribed by this rule apply to a lawyer’s duties to current, former, concurrent and joint clients as well as to the lawyer’s own 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… [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. … 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.

[15] And lastly the exception to representing clients where there is conflict is set out under Consent Rule 3.4-2: A lawyer must not represent a client in a matter when there is a conflict of interest unless there is express or implied consent from allclients and the lawyer reasonably believes that he or she is able to represent each client without having a material adverse effect upon therepresentation of or loyalty to the other client. (

a) Express consent must be fully informed and voluntary after disclosure. (

b) Consent may be inferred and need not be in writing where all of the following apply: (

i) the client is a government, financial institution, publicly traded or similarly substantial entity, or an entity with in-house counsel; (ii) the matters are unrelated; (iii) the lawyer has no relevant confidential information from one client that might reasonably affect the other; and (iv) the client has commonly consented to lawyers acting for and against it in unrelated matters. [16] Additionally, Crown submitted a number of authorities beginning with R. v.

Neil 2002 SCC 70, which is cited in the Code ofProfessional Conduct as it relates to conflict of interest where a lawyer’s representation of one client is directly adverse to anotherclient’s immediate interests. [17] Here the conflict arose where a law firm acted simultaneously for the appellant in criminal proceedings and his co-accused in herdivorce proceedings. As well, the lawyer representing the co-accused of the appellant, suggested a victim of the appellant report anunrelated forgery to the police.

This was unrelated to the charges involving his client. [18] The Supreme Court spoke to the lawyer’s “duty of loyalty” to their client and how this underpins the integrity of theadministration of justice by maintenance of public confidence that each litigant be assured of the “undivided loyalty” of their lawyer. [19] This duty of loyalty includes three dimensions: 1) duty to avoid conflicting interests, 2) duty of commitment to the clients causedby ensuring a divided loyalty does not cause the lawyer to “soft peddle” his or her defence to a client out of a concern for another client”,and 3) duty of candour with the client – if a conflict arises, the client should be among the first to hear about it. (@ paragraph 19) [20] The Court also described the duty of loyalty as intertwined with the fiduciary nature of the lawyer-client relationship.

A“fiduciary” is defined by Professor Donovan Waters as “…a person in whom trust and confidence is placed by another on whose behalfthe fiduciary is to act.” [21] The commentary in this case succinctly describes the fiduciary duties owed by a lawyer to a client and how a lawyer must doeverything possible to avoid having “two masters.” [22] R. v.

Quiriconi 2011 BCSC 1737 is helpful in stating that where there is a conflict of interest, waivers and fully informedconsents can lessen the conflict, but then the Court must also consider whether the public’s confidence in integrity, fairness or reliabilityof the criminal justice system would be shaken. [23] As well, the Court clearly concludes from the authorities that “the appearance of conflict as opposed to the presence of conflict,is sufficient to shake the public’s confidence in the integrity, fairness or reliability of the criminal justice system the lawyer whosepresence creates that appearance must be disqualified.” (Quiriconi @ paragraph 24, emphasis added) [24] In this case, even with clear informed consents, waivers and independent legal advice obtained by the lawyer’s current andformer client who were co-accused, the Court found there remained an “odour of unfairness an impropriety.” [25] CNR v.

McKercher LLP and Wallace 2013 SCC 39 considers the three dimensions of duty of loyalty as set out in Neil andconfirms that before interfering and removing a lawyer that courts must look to the “circumstances of each case and determine whether iswas realistic to conclude that the client would suffer some form of harm.” (@ paragraph 20) [26] In reviewing the governing principles, the Court began by citing authority from English common law Rakusen v. Ellis, [1912] 1CH 831 (Eng.

C.A.) @ paragragh 20 As a general rule the Court will not interfere unless there be a case where mischief if rightly anticipated…[W]here there is such aprobability of mischief that the court feels that, in its duty as holding the balance between the high standard of behaviour which itrequires of its officers and the practical necessities of life, it ought to interfere and say that a solicitor shall not act… [27] Underscoring the point that the “mischief” (or conflict) need not be actual, but probable. [28] The Court considers the Martin Test from Macdonald Estate v.

Martin, (SCC), [1990] 3 SCR 1235 SCC @paragraph 22 as a focus on risk of prejudice and balancing of values in protecting the client from risks of harm. “…an effective and fair conflicts rule must strike an appropriate balance between conflicting values. On the one hand stands the highrepute of the legal profession and the administration of justice.

On the other hand stand the values of allowing the client’s choice ofcounsel …” [29] As well, the Court considers two types of prejudice: prejudice as a result of the lawyer’s misuse of confidential informationobtained from a client and prejudice arising where the lawyer “soft peddles” his representation of a client in order to serve his owninterests, those of another client, or those of a third person.

[30] And lastly, the Court at paragraph 24, sets out a two part test to determine whether the new matter (or client) will place thelawyer in a conflict of interest 1) did the lawyer receive confidential information attributable to a solicitor and client relationship relevantto the matter at hand, 2) is there a risk that it will be used to the prejudice of that client” if the lawyer’s new retainer is “sufficientlyrelated” to the matters on which he or she worked for the former client, a rebuttable presumption arises that the lawyer possessesconfidential information that raises a risk of prejudice.” [31] Mr. Wool provided authorities that were for the most

part collateral to the issue I have to consider that being: has Mr. Wool’sduty of loyalty to his client been breached? [32] R v. Pena (BCSC) was relied upon to demonstrate he has concurrently represented several accused in the pastand Operation Dismantle v. The Queen, as an example where the Court considers whether to strike a Statement of Claimwhere unsubstantiated by evidence. In my view, neither of which provided assistance to the Court in this case. [33] R. v. Sherif 2012 ABCA 35 was relied on to support Mr.

Wool’s argument that “actual” conflict needs to be present.The Court considers “actual conflict of interest and an apparent conflict of interest at trial where with joint co-accused.

Here theallegations appear to be one of what I would categorize as an example of “soft peddling”, where the lawyer failed to cross examine theco-accused in favour of the appellant. [34] The Court did not make a determination of the issue of actual and apparent conflict, but instead determined the test to be of anactual conflict of interest and an “adverse effect on counsel’s performance flowing from that conflict” and concluded in obiter that“where, however a conflict of interest exists between jointly tried co-accused, an action by counsel which gives preference to the interestsof one accused will almost inevitably produce the required adverse effect on counsel’s representation of the other accused.” (atparagraph 17). [35] The case before me is not with joint co-accused in the same trial, nor is this an appeal. [36] Mr.

Wool relied on R v. Louie 2015 BCCA 23 as standing for the requirement that the conflict to be “actual.” Withrespect, I disagree the conclusion of the Court of Appeal stood for that premise. In fact, in my reading of Louie it is clear at paragraph 18that it does not: When a complaint of a conflict of interest is made before or during a trial the focus is generally whether a lawyer may be allowed tocontinue to act or must be disqualified.

The analysis is prospective and prospective, as it seeks not only to address the impact of an actualconflict that has arisen, but extends to assessing the risk that an apparent conflict may develop as the trial proceeds.

As a result, the partyraising the complaint need only establish that there is a realistic possibility that an apparent or actual conflict of interest may impact theintegrity and fairness of the proceeding and cause a miscarriage of justice: W(W.) @239; R. v. (Q)M, 2012 ONCA 224 at para 33 I willrefer to this as the “trial test.” (emphasis added) [37] The Court goes onto determine a more onerous test when the conflict of interest is raised as a ground of appeal and refers to thisas the “appellate test.” ARGUMENT Crown [38] Crown argues the conflict is “simple and obvious”: 1. Mr.

Wool has prejudiced the five defendants in this matter by tendering evidence and submissions that they have no jurisdiction tofish in the area where it is alleged they admitted they were fishing for food. “He has voluntarily exposed to the Crown and DFO officers,evidence against his other clients;” 2. The Crown submits there is a substantial risk of “soft peddling” one representation because of another by suggesting Mr.

Solomonbeing a member of the Toosey Indian Band fishing in his own jurisdiction as opposed to defendants in this matter being from WilliamsLake First Nation are fishing outside of their jurisdiction. Suggesting this is a defence “strategy” for Mr. Solomon that could lead to“conflicting pressures of judgement;” 3. Relying on a rebuttable presumption as set out in Wallace, the Crown alleged it is likely Mr. Wool obtained confidential informationfrom Mr. Solomon and his clients in this matter. There was no evidence of waiver, independent legal advice or consent to rebut thatpresumption; 4.

Without evidence to the contrary through waivers, independent legal advice or consents, the Crown argues the clients were likely notadvised of the jurisdictional issue Mr. Wool would be adducing in Mr. Solomon’s trial and would feel “betrayed” as in Neil; and 5. The conflict is sufficient to shake the public’s confidence in the integrity, fairness or reliability of the criminal justice system as itexpects undivided loyalty between a lawyer and their client. Mr. Wool [39] Mr. Wool argued: 1.

Delay was a “live issue,” submitting the Crown knew he represented all of the accused since 2020 and essentially sat on thisapplication until now without explanation; 2. There must be evidence of “actual” conflict of interest, there was no evidence of this and the burden of proof was on the Crown; 3. Mr. Wool argued the Crown was relying on speculation and not facts in his submissions and urged the Court to “strike this claim” for

lack of evidence. He relied on Operation Dismantle and McIvor (with no citation); 4. He submitted he is their “lawyer of choice”; and 5. Mr. Wool speculated Crown’s motive for filing this application to disqualify him is tactical because in Mr. Wool’s view, the Crown made a “serious error” when cross examining the defence witness Mr. Johnny, so “set Mr. Wool up” to have him removed from the picture entirely, thus avoiding his error coming to light. [ 40 ] Mr.

Wool argued each line of the legal basis of the Crown’s submissions and argued there was no factual basis as to what constitutes a conflict of interest with his clients, including challenging the Court to find a definition of “fiduciary duty,” submitting “… well what is my fiduciary duty, you have no evidence to suggest I have a fiduciary duty…what does fiduciary duty have to do with my five Aboriginal clients? There’s no evidence of it and if there was, whose business is it?

It would be mine and it would be theirs and we’re protected by solicitor client privilege.” ANALYSIS Delay [ 41 ] Crown did not oppose he was aware Mr. Wool represented the seven accused over three files, but argued he raised the issue of conflict of interest only with respect to the accused who were members of the Williams Lake First Nation when evidence adverse to them arose out of Mr. Solomon’s trial in November 18, 2021. He filed his application December 3, 2021. It was scheduled to be heard in January 2022; however, Mr.

Wool applied for an adjournment of the scheduled application and trial dates in January arguing Mr. Harper required a Cree interpreter. I note despite being asked on two prior pre-trial conferences on this file, Mr. Wool indicated an interpreter was not required; however in the interest of fair trial, both the Crown’s application and trials were adjourned to obtain an interpreter for Mr. Harper. [ 42 ] Crown submitted that their application was “triggered” with Mr. Johnny’s evidence under cross examination November 18, 2021. Crown acted on this and filed their application at the earliest practicable stage.

I find the delay argument without merit and I am satisfied there was no delay on the Crown’s

part in raising the issue of conflict of interest. Speculation [ 43 ] The most compelling evidence the Crown relies on is the transcript of Mr. Johnny’s evidence under cross examination. I have no difficulty in finding that this transcript represents actual conflict between Mr. Wool’s clients as it raises an issue the Crown was unaware of and is potentially materially adverse to Mr.

Wool’s clients in this matter. [ 44 ] I find that there is no “conjecture” or “speculation”, the transcript speaks for itself and I accept it as evidence of the potential prejudice against the defendants in this matter. [ 45 ] While the argument to strike the claim is a novel one relying on Operation Dismantle , I do not accept it as being applicable in this context and reject this argument. Lawyer of Choice [ 46 ] I am alive to the issue that depriving an accused person the lawyer of their choice should be done only when necessary as set out in Quiriconi .

In Wallace , the Court adopts the Martin Test of balancing the high standards of the legal profession and administration of justice against the value of allowing the client’s choice of counsel. [ 47 ] Having found a clear case of actual conflict from evidence with a potential adverse effect elicited from Mr. Wool’s client Mr. Solomon, the client’s choice of counsel must yield to the public perception of the fairness and integrity of legal proceedings in this context. Crown tactic to remove Mr. Wool to cover “serious error” [ 48 ] Without some evidence of this theory, Mr.

Wool’s submission would force this Court to engage in speculation of the Crown’s motive to apply to disqualify him to cover what Mr. Wool believes to be Crown’s “serious error” in cross examination. This argument has no merit and I will not consider it. Fiduciary duty [ 49 ] I find this line of argument troubling. Clearly this argument is contrary to the Law Society’s principles grounded in the duty of the loyalty to the client and well settled authority from the SCC, our Court of Appeal and Supreme Court. [ 50 ] Mr.

Wool’s arguments against the established governing principles related to a lawyer’s fiduciary duty and whether or not he owed a fiduciary duty to his clients missed the mark.

Quite plainly, he does and I dismiss this argument summarily. [ 51 ] The Law Society’s Code of Professional Conduct for British Columbia and the authorities provided to me have the same theme: duty of loyalty, substantial risk, trial fairness, and perception of the public in maintaining the integrity in the administration of justice. [ 52 ] It is settled law that any conflict of interest between a lawyer and their client can be actual or perceived.

As the Court of Appeal stated in Louie , Crown need only show “a realistic possibility that an apparent or actual conflict of interest may impact the integrity and fairness of the proceeding and cause a miscarriage of justice.” (@ paragraph 18) [ 53 ] In my view, this threshold is very low in order to protect the interest of the clients from risk of harm and I would go further – in particular in criminal matters where a client’s liberty may be at stake, but also in the public interest in seeing justice being done fairly

and maintaining that trust. [ 54 ] I am satisfied that a conflict of interest arose when the evidence elicited from Mr. Wool’s witness in Mr. Solomon’s trial alerted the Crown to further evidence they were unaware of and that this potentially prejudices the defendants in this matter on similar and related circumstances. However, the analysis does not end there.

Disqualification of a lawyer is not automatic in this finding of conflict of interest. [ 55 ] I must also consider whether this conflict adversely effects the accused in this file, weigh the defendants right to have a lawyer of their choice and whether disqualification is required to maintain public confidence in the justice system. [ 56 ] I return to the three dimensions of duty of loyalty as per Neil and followed in Wallace : 1. Avoiding conflicts of interest. With the concurrent representation of Mr. Solomon and the defendants in this matter, I am satisfied that there is a substantial risk Mr.

Wool’s representation of the defendants has already materially and adversely prejudiced these defendants with the evidence adduced during Mr. Solomon’s trial. 2. I find Mr. Wool’s lack of a clear understanding of the meaning of fiduciary duty to his clients and his submission that there is “no evidence” to suggest he owes a duty to them, leaves me concerned for future risk. I note that this was already demonstrated when Mr. Wool attempted to introduce correspondence related to Mr. Billyboy’s fisheries matter in this hearing in an effort to address Crown conduct. 3. Duty of commitment to the client’s cause.

There is no clear evidence of intentional “soft peddling” as this evidence was elicited during cross examination; however, I note in the transcript that Mr. Wool agreed with Mr. Johnny’s assertion by stating on the record that the defendants “had no jurisdiction there.” Further, I find Mr. Wool’s lack of understanding of his fiduciary duty to his clients leaves a genuine serious risk of future prejudice as stated above. 4. Duty of Candour . There was no evidence adduced through viva voce , affidavits, consents, waivers or independent legal advice of whether Mr.

Wool’s clients were aware of the evidence that arose in Mr. Solomon’s trial could potentially adversely impact them. [ 57 ] With respect to maintenance of public confidence in the judicial system, I am satisfied that the transcript of Mr. Johnny testifying in Mr. Solomon’s trial against the interest of the clients on this matter is the clearest evidence of actual conflict between Mr. Wool’s client Mr.

Solomon and his clients in this matter. [ 58 ] Without evidence supporting all parties being fully informed and aware of the potential conflict, I find this would be sufficient to shake the public’s confidence in the fairness and integrity of the criminal justice system. In light of this clear evidence, the interest in maintaining the public’s confidence that a lawyer has an undivided loyalty to their client outweighs his clients’ choice of counsel.

DECISION [ 59 ] Having found a clear conflict of interest between his clients because material facts surfaced while court proceedings were ongoing, the appropriate remedy is to disqualify Mr. Wool from acting further and I will do so. [ 60 ] I will add that this is an unfortunate result as it will likely lead to a further delay in this case that already has a protracted history. [ 61 ] One last point. I assured the defendants at the outset of this hearing, and it bears repeating, that I am only dealing with the potential or actual conflict of interest between Mr. Wool’s clients.

The allegations of the Crown that they were illegally fishing during a prohibition remain allegations only, they are unproven and only provide the context or background for the Court’s assertions of conflict between them, Mr. Solomon and their lawyer Mr. Wool. They remain innocent of these charges until Crown has proven the charges beyond a reasonable doubt at their trial. The Honourable Judge M. Stanford Provincial Court of British Columbia