Her Majesty the Queen - v. -, 2022 SKPC 24

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 24 Date: February 14, 2022 Information: 991028349 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cheyene Awasis Appearing: Cory M. Bliss For the Crown Cheyene Awasis Self-Represented REASONS ON INTERIM APPLICATION D.C. S COTT, J [ 1 ] On November 14, 2017, in Domestic Violence Court, Mr. Awasis pled guilty, to count 1 of Information ending 349, that he committed an assault on Fran Swimmer, contrary to s. 266 of the Criminal Code .

He now seeks to expunge that guilty plea. [ 2 ] At the outset of the expungement hearing, the Court was informed that the Crown intends to call Ms. Victoria Kindrachuk to testify. Ms. Kindrachuk was Crown counsel in court on the day that Mr. Awasis entered his guilty plea. Mr. Awasis was self- represented at the time. [ 3 ] Mr. Bliss for the Crown brought to the Court’s attention the decision in R v Brassington , 2021 SKPC 40 [ Brassington ], wherein my brother Judge Agnew declined to allow Crown counsel to call as a witness a member of the same Crown office to testify in a voluntariness voir dire at a trial.

[4] On December 14, 2021, I heard the testimony of the applicant Mr. Awasis and reserved my ruling on whether Mr. Blisswould be allowed to continue acting in this matter if Ms. Kindrachuk is to be called. [5] In Brassington, Judge Agnew affirmed the general rule that legal counsel cannot appear on a matter in which a member oftheir firm has given evidence: para. 6.

He stated at para. 8: [8] The caselaw governing the situation in Saskatchewan can be summarized as follows: a. lawyers who act as counsel in a proceeding must not put their own credibility in issue by asserting as fact anything that is properlysubject to challenge.

This prohibition extends to testifying before a tribunal, giving evidence in the form of an affidavit, or effectivelybecoming an unsworn witness by making submissions about factual matters that should properly be proven by evidence (Phillips LegalProfessional Corp. v Vo, 2015 SKQB 248 at para 28, 473 Sask R 48, [Phillips]; Gaudet, at para 18); b. a lawyer may not do indirectly what cannot be done directly by adducing controverted evidence from members of his own law firm(Phillips at para 28; Gaudet at para 18; Dustyhorn Estate v Stickney, 2004 SKQB 53 at para 4, 245 Sask R 132; Wanner, at para 66); c. the Court is not bound by the Law Society’s rules of conduct (Wanner, para 65); d. however, the Court will take those rules into account (Gaudet, para 19); e. it is allowable for counsel to provide their own affidavit, or that of a member of their firm, when the matters sworn to are merelyformal or uncontroverted (Wanner, para 66; Gaudet, para 17) f. there may be unforeseen circumstances which arise during trial which require that trial counsel testify.

If so, however, absent “veryspecial circumstances” they should then withdraw and not continue as trial counsel (Waschuk v Waschuk, (SK CA),[1955] 1 DLR 686 at para 30 (Sask CA). [6] Judge Agnew articulated three reasons why a lawyer should not give evidence and act as counsel in the same matter and whylawyers from the same office cannot be counsel and give substantive evidence in the same proceeding: para. 17.

Those reasons may besummarized as follows: a. the public might believe, or suspect, that the witness would not give unbiased testimony, which would damage the confidence inthe outcome of the proceeding as well as the profession and justice system as a whole; b. opposing counsel might be put in the position of having to cast aspersions on their fellow counsel, which is contrary to civilityand collegiality expected of members of the Bar toward each other; and c. counsel may have to treat a witness from their own firm as hostile, resulting in the need to cross-examine or take other stepswhich might be uncomfortable and lead to a concern whether the witness was treated in the same manner as an ordinary witness. [7] The first of these reasons addresses public confidence in the justice system.

The remaining two are concerned with the truth-seeking function of the trial: para. 18. [8] Judge Agnew concluded that the general rule against private counsel calling a witness from their own firm to givesubstantive evidence applies equally to the Crown: para. 19. [9] Crown counsel in the present proceeding relied on two cases from Manitoba, not considered by Judge Agnew in Brassington. [10] In R v Henderson, 2012 MBCA 93, 284 Man R (2d) 164 [Henderson] the Manitoba Court of Appeal considered whetheroutside counsel ought to have been ordered to argue a conflict of interest motion brought by the defence.

In that case, late in the trial,one of the Crown attorneys became aware that several years earlier when she was in private practice, her law firm had defended theaccused on criminal charges and she had appeared for him on two remand dates. The trial judge ordered that Crown counsel be removedfrom the case but refused to declare a mistrial. [11] The Court of Appeal held that the trial judge did not err in declining to order a mistrial.

However, the trial judge was notobliged to order that an outside lawyer, not associated with the Crown, argue the issue. [12] The Court of Appeal decided that while the general rule that a lawyer cannot be both counsel and witness in the same hearingis applicable to individual Crowns, the rule is not absolute. The Court referenced circumstances where Crown counsel regularly appearwhen calling another Crown lawyer to testify, such as unreasonable delay applications or applications for a stay related to delayeddisclosure. However, there may be circumstances which would require the appointment of outside counsel.

All that would be requiredis for another Crown counsel to take conduct of the hearing and lead the evidence: paras. 94 and 95. Leave to appeal the decision to theSupreme Court of Canada was denied. [13] In R v W.R.D. (1994), (MB CA), 89 CCC (3d) 474 (Man CA) [W.R.D.], the complainant was a potentialwitness in the prosecution of several historical assault offences as well as in a civil suit related to the same circumstances. The Crownwas represented by counsel from different branches of the Department of Justice in both proceedings. The trial judge found the AttorneyGeneral (A-

G) was in a conflict of interest and stayed the criminal proceedings until outside counsel to prosecute had been retained. [14] The Manitoba Court of Appeal held that the position of the Attorney General is unique and not analogous to that of a privatelaw firm which has encountered a conflict of interest problem. Neither in the criminal proceeding nor the civil proceeding was thecomplainant in a solicitor-client relationship with the Crown where confidentiality was involved. According to the Court, in thesecircumstances it would be no answer to simply retain outside counsel since whoever the Attorney General’s agents may be, they mustfunction under the A-G’s direction: paras. 12 and 13.

[ 15 ] It is my view that the rule against the Crown calling a lawyer from its office as a witness is not absolute but rather contextual. There are distinguishing features in each of the cases cited. In Brassington , Judge Agnew addressed the issue in the context of a voir dire in a criminal trial, where the accused’s liberty was at stake. In Henderson , the issue arose in the context of a defence motion for a mistrial as the result of an individual Crown counsel’s alleged conflict of interest.

W.R.D . also dealt with an alleged conflict of interest of the Attorney General in the context of two separate but related proceedings. [ 16 ] The hearing before this Court involves the application by Mr. Awasis for expungement of his guilty plea. In Domestic Violence Court, where his plea was taken, it is common practice for self-represented individuals to deal directly with the Crown prosecutor when deciding whether to sign an Agreed Statement of Facts.

The signing of the statement precedes the accused’s entering a guilty plea in open court. [ 17 ] In applying Judge Agnew’s reasons, above, to the present proceedings, I am not convinced that Mr. Awasis’s or the public’s confidence in the system would be damaged if Mr. Bliss were to continue to appear for the Crown. Ms. Kindrachuk was not in a solicitor-client relationship with the accused where confidentiality was involved. If outside counsel were retained, that counsel would take their direction from the Attorney General regarding the Crown’s position in any event: W.R.D . [ 18 ] Mr.

Awasis is self-represented in these proceedings so there is no concern about undermining civility or collegiality among members of the legal profession in the courtroom. [ 19 ] Finally, if Mr. Bliss is in the position of having to treat Ms.

Kindrachuk as a hostile witness, or other similar circumstances arise, at that point the Court may be compelled to interrupt and require outside counsel to continue with the hearing: W.R.D . [ 20 ] I note that in reaching his decision not to allow Crown counsel from the same office as that of counsel appearing in the trial, Judge Agnew left as an open question whether the rule would apply to Crown prosecutors from different offices or different cities: para. 20. [ 21 ] In the present case, Ms. Kindrachuk is currently on leave from the Crown office where Mr. Bliss is situated.

Her affidavit filed in support of a request to appear by Webex indicates it is not certain that she will return. [ 22 ] The question for this Court is not whether Mr. Bliss can call Ms. Kindrachuk as a witness, but rather whether he can continue to act for the Crown in the expungement hearing or if outside counsel must be retained to question Ms. Kindrachuk. [ 23 ] In the circumstances of this particular case, I am satisfied that Mr. Bliss may continue to appear in this matter if Ms. Kindrachuk is called as a Crown witness.

Should difficulties arise during her testimony, as mentioned, the Court may require outside counsel to continue with the hearing. _____________________ D.C. Scott, J