Her Majesty the Queen - v. -, 2013 SKPC 87

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 087 Date: May 16, 2013 Information: 24487009 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Logan William Miller, Christopher Johnson, Jordan Phillip Breland, Geoff Smith and Aaron Nygaard Appearing: Ms. L. O ’Connor For the Crown Mr. William A. Selnes For the Accused DECISION B. MORGAN , J INTRODUCTION [ 1 ] Each of the five accused are charged on the same information with two counts of breaking and entering a dwelling-house in Tisdale, Saskatchewan, and committing the indictable offence of forcible confinement, contrary to s. 348(1) (

b) of the Criminal Code . Each of the accused has retained Mr. Selnes, and each has signed a document confirming that each has discussed the issue of a potential conflict of interest with independent counsel. There are five certificates of independent legal advice, one from each of the accused, which are essentially identical, confirming a number of matters. The exception is that of Mr. Johnson’s waiver form, which indicates

that he waives any conflict of interest, having scratched out the words that he is “satisfied there is no” conflict of interest. [ 2 ] Each of these five waiver forms also states that each accused wants to have Mr.

Selnes represent all of them, that there is no confidential information for that individual’s defence that is not known to all the others, and that they have a common defence to the charges. [ 3 ] Although none of these accused have elected mode of trial, defence counsel has confirmed that all will be electing a trial in the Court of Queen’s Bench, and that he will be requesting that a preliminary inquiry be set when this is next in Court in Tisdale on June 4, 2013. [ 4 ] The Crown has brought an application asking that Mr.

Selnes not be allowed to act for all five co-accused at the preliminary inquiry and trial of this matter. Mr. Selnes, on behalf of his clients, opposes the application, relying largely on the waivers. ANALYSIS [ 5 ] This application requires a balancing of the accused’s right to counsel of choice with the need to maintain confidence in the proper administration of justice. Although an accused’s right to counsel of choice is an important right, it can bow to the latter consideration in appropriate cases.

Often, such a case arises when a lawyer has a clear conflict of interest, such that he or she will be required to favour one of his clients over another, or arises in a situation in which a lawyer has some confidential information he may have received from dealing with a client in the past, with the lawyer then seeking to act against that past client in a new proceeding. [ 6 ] In this case, an obvious risk is that one or more of the accused will undergo a change of heart, and try to place responsibility on one or more of the other co-accused, putting Mr.

Selnes, assuming he is acting for all five, in an impossible position. I note that each waiver contains the phrase “I give this waiver irrevocably and with the knowledge it cannot be withdrawn in the future”. I have some serious doubts that such would be the case, but I refrain from commenting further on that aspect of matters as I do not need to in order to rule on this application. [ 7 ] The Code of Professional Conduct, which is binding on lawyers, speaks to a lawyer’s duty to avoid conflicts of interest.

Although that Code is helpful in providing some guidance to the Court, it is not binding on the Court (see, for example, R. v. Marshall and Marshall , 2002 SKQB 107 , para. 8 ). [ 8 ] In my view, a proper balance of the competing interests in this application persuades me that I should decline to make the order sought by the Crown at this point. Specifically, this decision is based on the understanding that the proceedings in the Provincial Court will be a preliminary inquiry, not a trial.

In my view, that is a significant distinguishing factor from the cases cited by the Crown in support of their position, most of which dealt with applications to a trial judge to disqualify a lawyer for various reasons. [ 9 ] In R. v. Amundson , 2011 SKPC 131 , this Court was confronted with a situation in which two individuals (Ms. Amundson and Mr. Hounjet) were charged on separate informations with the same offence, each had elected trial by a Court of Queen’s Bench judge and jury, and each had requested that a preliminary inquiry be held. Each had retained Mr.

Selnes, and a like application was brought by the Crown to disqualify Mr. Selnes from acting for both individuals at either’s preliminary inquiry or trial. That case is very similar to this case (albeit those individuals were on separate informations, and these five are on the same). That case reviewed a number of decisions that were also referred to by counsel in this case, so nothing useful would be served in repeating the Amundson analysis at this time. Applying Amundson , however, I note the following in this case: 1) there is little risk of Mr.

Selnes being put in a position of dividing his loyalties at a preliminary inquiry, due to the nature of the proceeding. Even if one or more of his clients did testify or make a statement at the preliminary inquiry, implicating another of Mr. Selnes’ clients, the procedure does not contemplate a judge weighing the evidence to make findings of fact; that is the role of the trial judge or jury, if there is a committal.

Thus, any “finger pointing”, if you will, would have no practical effect on the outcome of the preliminary inquiry, where the only jeopardy any of the accused faces is the possibility of being committed to stand trial;

2) there is no evidentiary basis, at this point, that would suggest that the conflict the Crown fears might arise, will arise. In fact, the waivers would tend to support the opposite view. If there is a committal to trial of one or more of the accused, a transcript will be prepared, which might provide an evidentiary basis for an application to the trial judge. I note as well that this application asks for an order that Mr.

Selnes not represent all of the accused at the preliminary inquiry or the trial; as the trial, if there is one, will be held in the Court of Queen’s Bench, that is the Court with the authority to make orders respecting the trial; 3) although a waiver is not determinative of anything, it is a factor which I consider in looking at the propriety of making the order sought by the Crown. In looking at the waivers, it is clear that all accused wish to have Mr. Selnes act for all of them.

Their wishes have to go in to the equation; 4) there will be significant cost savings for these individuals, all of whom claim to have a common defence. Requiring each of these accused to now retain separate counsel would significantly increase the cost to each accused, and would have the inevitable effect of increasing the amount of time needed to conclude their preliminary inquiry. Counsel have indicated that two other accused, each charged separately, have separate counsel and have set separate preliminary inquiry dates.

Having one lawyer representing all five accused at one preliminary inquiry can only reduce the court time needed for that preliminary inquiry. [ 10 ] For the foregoing reasons, the application is dismissed; the balancing of the interests at play in this application come down in favour of that result. As this Court’s jurisdiction would end with a committal for trial for one or more of the accused, if that is what happens, it would be inappropriate to speculate as to what proceedings may occur in another Court.

However, this decision is not intended to prevent the Crown from bringing a similar application to the trial court if a committal occurs, if the Crown feels the situation warrants such an application at that time. B. Morgan, J