R. v. Malcolm, 2022 MBPC 39

CITATION: R. v. Malcolm, 2022 MBPC 39 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) J. Funke ) for the Crown -and- ) ) Wallace Malcolm ) M. Nerbas ) for the Accused Accused ) ) T. Walker ) for M. Nerbas ) ) ) ) Reasons for Decision ) Delivered: July 21, 2022 at ) the City of Brandon, in the ) Province of Manitoba Decision on Defence Application to Withdraw as Counsel S. Hewitt-Michta, J INTRODUCTION [ 1 ] Defence counsel Michael Nerbas brought an application to withdraw as counsel for the accused, Wallace Malcolm, for ethical reasons.

As recommended by The Law Society of Manitoba , Mr. Nerbas retained counsel to argue the withdrawal application on his behalf. The crown opposed the application. [ 2 ] I granted Mr. Nerbas’ request to withdraw following oral argument on July 14, 2022 with the promise of written reasons to follow.

HISTORY OF THE PROCEEDINGS [ 3 ] Wallace Malcolm faces charges of sexual assault and sexual interference. [ 4 ] A scheduled trial date of February 25, 2022 did not proceed because of court closures necessitated by the COVID pandemic. [ 5 ] The subsequent trial date of April 5, 2022 did not proceed because the crown with conduct of the file at that time was ill. [ 6 ] Defence sought an adjournment of the most recent trial date, June 8, 2022 because of a change in crown position. A previous crown with conduct of the file told Mr. Nerbas the crown’s intention was to proceed on a common assault charge.

Days before June 8, the crown informed Mr. Nerbas he planned to proceed on the sexual assault and interference charges. That change in crown position impacted defence counsel’s trial preparation. The crown did not oppose a defence request to adjourn the trial. [ 7 ] At a Case Management Conference [CMC] on June 24, Mr. Nerbas alerted the Court to a possible application for Charter relief arising from an alleged abuse of process given the change in crown position. At a follow-up CMC on July 4, Mr. Nerbas confirmed his intention to pursue that Charter application.

The CMC memorandum of the same date references discussion about whether Mr. Nerbas could argue the motion given his status as a potential witness. There is also reference to the possibility of an agreed statement of fact. [ 8 ] Subsequent to the final CMC, Mr. Nerbas advised of his intention to bring an application to withdraw as counsel. Mr. Nerbas filed an affidavit in support dated July 11.

The affidavit indicates he can no longer act for the accused because of a conflict; that he sought and received an opinion from General Counsel for The Law Society of Manitoba who opined that continuing to act would create a conflict; and that he found new counsel to represent the accused going forward.

[9] Andrew Synyshyn attended the hearing of this motion, confirmed he has contact with the accused and was ready to go on record.The crown attorney offered to withdraw his opposition to Mr. Nerbas’ application if Mr. Synyshyn undertook to set an immediate trialdate “within the Jordan timelines”. The hearing proceeded. [10] The charges are currently on remand pending scheduling of a new trial date. The defence has not yet filed their application forCharter relief and there is no defence application related to delay. THE LAW [11] Cunningham v. Lilles 2010 SCC 10 is instructive.

The Supreme Court considered whether, in a criminal proceeding, a Judge hasauthority to refuse defence counsel’s request to withdraw for non-payment of fees. Mr.

Nerbas’ application has nothing to do with feesso Cunningham is factually distinct, but the Supreme Court outlined several guiding principles. [12] Counsel of record requires permission from the Court to withdraw as counsel. [13] Counsel must have a valid reason for seeking to withdraw. [14] If counsel applies to withdraw well in advance of any scheduled hearing without need of an adjournment, the Court should grantthe application without inquiring into counsel’s reasons. [Paragraph 47] [15] If timing of the application is an issue, the Court may ask counsel to explain the reason for the application.

If counsel cites non-payment of fees or ethical reasons, the Court should accept counsel’s explanation “at face value” without enquiring further so as not torisk piercing privileged communications between lawyer and client. [Paragraph 48] [16] If counsel seeks to withdraw for ethical reasons, the Court must allow the withdrawal. It is improper for the Court to force counselto continue acting where doing so would cause the lawyer to violate their professional responsibilities [paragraph 49].

Further, theSupreme Court indicated, “It is not appropriate for the court to refuse withdrawal where an adjournment will not be necessary, norwhere counsel seeks withdrawal for ethical reasons.”[Paragraph 59] [17] If the request for withdrawal arises from non-payment of fees, the Court may exercise its discretion to refuse.

The Supreme Courtidentified several factors a court should consider in deciding whether such a withdrawal would cause serious harm to the administrationof justice. [Paragraph 50] The Court went on to declare a “high threshold” must be met to refuse leave to withdraw for non-payment offees and the Court’s discretion to refuse should be exercised “exceedingly sparingly”. [Paragraphs 54 and 59] ANALYSIS [18] The direction in Cunningham seems clear – if counsel seeks to withdraw because of ethical concerns, the Court is to take counselat face value, not inquire further into the specifics, and grant the application to withdraw.

Cunningham stands for the premise that wherethe issue underlying the request to withdraw is non-payment of fees, the Court retains a discretion to refuse the request. [19] In effect, the crown invites the Court here to disregard or inquire behind defence counsel’s assertion of an ethical basis forwithdrawing and assess the matter in the same fashion as if the issue were non-payment of fees.

He asserts this is justified because Mr.Nerbas’ reasons for seeking to withdraw do not stem from any breakdown in solicitor-client relationship; there is no risk of piercing thesolicitor-client relationship by inquiring further into the reasons; and the reasons have nothing to do with the substantive merits of thecase. [20] I disagree. Mr. Nerbas’ affidavit does not spell out the details of the ethical issue but it does indicate that a conflict has arisen andthat he obtained an opinion from Law Society General Counsel confirming the conflict. Counsel on behalf of Mr.

Nerbas supplementedthe affidavit, confirming the accused intends to seek Charter relief arising from an alleged abuse of process by the crown; identifyingMr.

Nerbas as a witness to the crown’s conduct; and citing the impossibility of acting as both witness and advocate for his client. [21] At paragraph 48 of Cunningham, the Court said, “Counsel seeking to withdraw for ethical reasons means that an issue has arisenin the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused.Counsel may cite ‘ethical reasons’…if, for example, the accused is requesting that counsel act in violation of his or her professionalobligations”. This is precisely Mr. Nerbas’ dilemma.

His client has no desire to discharge him but if he continues to act, he is bothlawyer and star witness in respect of the alleged abuse of process. [22] The case at bar is not analogous to a non-payment of fees scenario. [23] The crown voices substantial concern about delay in this matter and understandably so given the history of the proceedings. Heargues there is a shared obligation on crown and Mr. Nerbas pursuant to R. v.

Jordan 2016 SCC 27 , [2016] 1 S.C.R. 631 toattempt to resolve the conflict issue that has arisen here and to move the trial forward in as expeditious a manner as possible withoutunnecessary proceedings or frivolous applications. Interestingly, the crown attempted unsuccessfully to adjourn this withdrawal hearinginto the future so he could call a witness – the crown who intended to proceed on a lesser charge. [24] The crown sought to identify an agreed statement of fact to alleviate any need for Mr. Nerbas to withdraw as counsel. Ms. Walkeradvised the Court it was that suggestion by the crown that prompted Mr.

Nerbas to seek an opinion from the Law Society. One canappreciate the reluctance Mr. Nerbas might have felt about asking his client to commit to an agreed statement of fact solely aimed atpreserving Mr. Nerbas’ ability to remain as counsel of record. There can be strategic considerations related to presenting evidence byway of viva voce evidence versus an agreed statement of fact. The best evidence of whatever happened between crown and defence inthis matter is arguably viva voce evidence from the parties to those conversations.

The accused’s right to make full answer and defence,including pursuing any Charter relief that might arise on the facts of his case, is in play. [25] The crown made additional arguments that relate ultimately to the looming sections 7 and 11 Charter applications. I do not intend

to address them, as I find they have no bearing on my decision regarding the withdrawal application. [ 26 ] Mr. Nerbas’ application to withdraw is for ethical reasons. I decline to inquire any further into those reasons. There was no trial date set at the time of the hearing of this application and, therefore, no need to adjourn the trial to facilitate the withdrawal of counsel. Mr. Nerbas brought the application in an expeditious manner and supplemented his own perspective with an opinion from General Counsel for The Law Society of Manitoba .

He further assisted the accused in finding new counsel who is waiting in the wings ready to step in and represent the accused going forward. [ 27 ] It would be inappropriate to require Mr. Nerbas to continue acting where doing so would put him in conflict and in violation of his professional obligations. DECISION [ 28 ] The Court grants Mr. Nerbas’ application to withdraw as counsel for ethical reasons. “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta