R. v. Sutherland, 2022 BCPC 130

Citation: R. v. Sutherland 2022 BCPC 130 Date: 20220608 File Nos: 74064, 74065 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAMIOND RAIN CRAIG SUTHERLAND ORAL RULING ON APPLICATION OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: A. Murray Counsel for the Defendant: J. LeBlond Place of Hearing: Prince George , B.C. Date of Hearing: May 9, 2022 Date of Judgment: June 8, 2022

INTRODUCTION [ 1 ] The Crown has filed a pre-trial application asking the court for direction on Court files 74064-1 and 74065-1, charging Damiond Rain Craig Sutherland (“Damiond Sutherland”) with drug trafficking and firearms offences. The Crown asserts Mr. Jason LeBlond, legal counsel for Damiond Sutherland, may be in a conflict of interest due to his ongoing representation of Colin Durrand. Colin Durrand is not Damiond Sutherland’s co-accused on this or any other matter.

Although Colin Durrand was present at the scene of the investigation, neither the Crown nor the defence intend to call him as a witness in the trial of Court files 74064-1 and 74065-1. Matters with respect to Damiond Sutherland [ 2 ] On July 14, 2021, Damiond Sutherland was charged indictably with four offences on Informations 74064-1 and 74065-1.

The offences are alleged to have occurred on or about August 9, 2020, at or near Prince George, BC, and include: a. possessing a controlled substance, namely fentanyl, for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs And Substances Act (Count 1, Information 74064-1); b. possessing a c ontrolled substance, namely cocaine, for the purposes of trafficking contrary to section 5(2) of the Controlled Drugs And Substances Act (Count 2, Information 74064-1); c. possessing a loaded restricted firearm, a Smith and Wesson .45 Caliber semi-automatic pistol, without being the holder of a licence and registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code (Count 3, Information 74064-1); d. possessing a firearm while prohibited from doing so by an order under

an Act of Parliament, contrary to

Section 117.01(1) of the Criminal Code (Count 1, Information 74065-1); [ 3 ] On July 14, 2021, Damiond Sutherland was summoned to appear in Prince George Provincial Court on August 18, 2021, with respect to Informations 74064-1 and 74065-1. On August 18, 2021, Mr. LeBlond went on record as Damiond Sutherland’s legal counsel on both matters. On October 12, 2021, Damiond Sutherland elected trial by a Provincial Court Judge (on Information 74064-1) and entered not guilty pleas to all charges on Informations 74064-1 and 74065-1. The Crown and defence appeared before Judge B.

Craig for a Pre-trial Conference on November 22, 2021. On December 7, 2021, they appeared before the Judicial Case Manager and fixed a five- day trial commencing on August 22, 2022, and continuing on August 30, 2022, September 1, 2022, September 2, 2022 and September 26, 2022. Circumstances of Informations 74064-1 and 74065-1 [ 4 ] The Crown alleges that in August 2020, the Prince George Royal Canadian Mounted Police Street Crew began an investigation of Damiond Sutherland for drug trafficking.

On August 7 and 8, 2020, the RCMP officers conducted a surveillance on 1678 Kenwood Street, Prince George, BC (“1678 Kenwood”). This residence has an upper main floor, a full basement and a number of bedrooms. The officers observed Damiond Sutherland at 1678 Kenwood many times. They also observed many people make brief visits to that address – behaviour indicative of drug trafficking. [ 5 ] On August 7, 2020, the officers observed both Damiond Sutherland and Colin Durrand at 1678 Kenwood. On August 8, 2020, the RCMP obtained a warrant to search 1678 Kenwood for drugs and evidence of drug trafficking.

The RCMP officers executed the search warrant in the early hours of August 9, 2020. When he opened the front door, the officers arrested Damiond Sutherland for possessing a controlled substance for the purposes of trafficking. At the time, there were five people in 1678 Kenwood: Damiond Sutherland; Colin Durrand; Angie Hammerstrom; Justice Collier; and Jared Homer. The officers arrested Colin Durrand on an outstanding warrant. [ 6 ] While searching the living room couch, the officers located a .45 calibre Smith and Wesson semi-automatic pistol that tested positive for Damiond Sutherland’s DNA.

The officers also found and seized various cellular phones, drugs and drug paraphernalia. Later, the officers searched the cellular phones pursuant to a warrant. One of the phones had an incoming message addressed to “Colin”, along with a text message stating, “How much are you looking for?” The Crown believes these messages support an inference that “Colin” was trafficking in drugs. Nevertheless, the Crown has never charged Colin Durrand with any offence arising from the August 9, 2020 police raid.

Crown’s position [ 7 ] The Crown submits that although Colin Durrand and Damiond Sutherland are not co-accused on this or any file, Mr. LeBlond is in a potential conflict given his representation of both accused. In early January 2022, the Federal Crown first broached with Mr. LeBlond the conflict-of-interest issue arising from his representing both Damiond Sutherland and Colin Durrand, albeit on disparate matters. The Crown reiterated its concerns to Mr. LeBlond on February 8, 2022, February 19, 2022 and March 3, 2022. [ 8 ] Mr.

LeBlond represents Colin Durrand on a number of matters, one of which the Federal prosecutor has conduct. Information 74060-1 is a single-count Information charging that on or about September 29, 2020, Colin Durrand possessed a controlled substance contrary to section 4(1) of Controlled Drugs and Substances Act. Colin Durrand is now in custody with respect to Information 74060-1 as a result of his having failed to appear in court at his trial on February 9, 2022. [ 9 ] The Crown seeks direction from the court as to whether Mr.

LeBlond ought to continue representing Damiond Sutherland in court files 74064-1 and 74065-1. The crux of the Crown’s concern is the fact the offences giving rise to the charges against Damiond Sutherland occurred at 1678 Kenwood when Colin Durrand was present. It is not clear to me who ordinarily resides at 1678 Kenwood. I

note the summons on court file 74060-1 was issued to “Colin Michaud Durrand, 300 Hixon Creek Rd, Hixon, BC, V2M 2P2.” This isalso indicated as Damiond Sutherland’s address on the summons issued with respect to court files 74064-1 and 74065-1. [10] In any event, because Colin Durrand was present at 1678 Kenwood at the time of the August 9, 2020 police raid, he is a potentialwitness or co-accused. The Crown submits an obvious defence available to Damiond Sutherland is to assert the impugned items seized inthe raid were actually possessed by Colin Durrand. [11] The Crown has provided the court with the following authorities: (

a) R. v. Quiriconi, 2011 BCSC 1737 ; (

b) R. v. Cocks,2012 BCSC 1336 ; (

c) R. v. Neil, 2002 SCC 70 ; (

d) and R. v. W.W., (ONCA). Defence submissions [12] The defence submits there is no conflict of interest in Mr. LeBlond representing Damiond Sutherland and Colin Durrand in twodistinct matters. They are not co-accused. Mr. LeBlond concedes there are two possible scenarios that could give rise to a conflict ofinterest and cause him to immediately withdraw as Damiond Sutherland’s legal counsel: a.

If the Crown were to charge Colin Durrand along with Damiond Sutherland on Information 74064-1: this has not happened to dateand the offences charged under Information 74064-1 are alleged to have occurred on August 9, 2020, almost two years ago; b. If the Crown were to call Colin Durrand as a witnesses in the trial of Informations 74064-1 and/or 74065-1: the defence has had theCrown disclosure for over a year. There are no police statements from Colin Durrand with respect to this matter and the Crown has neversuggested it intended to call Colin Durrand as a Crown witness. [13] Mr.

LeBlond considers these two scenarios as remote possibilities. If the Crown did charge Colin Durrand with an offencearising from the August 9, 2020 police raid or call him as a witness at Damiond Sutherland’s trial, then Mr. LeBlond would be in anactual conflict and have to withdraw as counsel. [14] The Crown says there were five people in the house when the police executed the warrant. The defence submits this is not asituation where the seized items belonged to either Colin Durrand or Damiond Sutherland.

The defence can challenge knowledge andpossession without having to “prove” the impugned items belonged to Colin Durrand. It is the Crown’s burden to prove all the elementsof the offence beyond a reasonable doubt. The defence’s primary focus is a Charter challenge to the warrant. [15] The defence submits Damiond Sutherland’s right to counsel of his choice outweighs the potential conflict. Mr. LeBlond is one ofa small pool of lawyers in the area with expertise in the complex legal issues Damiond Sutherland and Colin Durrand face. He haspracticed as a criminal defence lawyer in this community for over 23 years.

Although it is not a remote village, Prince George isnevertheless a very small city, far removed from larger centres well-populated with lawyers with diverse expertise. Inevitably, there willbe people in the vicinity of a police investigation who he will have acted for in the past. If the court were to disqualify any lawyer whohad represented any of the five persons found in1678 Kenwood on August 9, 2020, Damiond Sutherland may have difficulty retaining alocal lawyer with the requisite expertise.

The fact Colin Durrand was found in 1678 Kenwood at the time of the August 9, 2020 policeraid is not sufficient to raise an apprehension of bias. [16] The case against Damiond Sutherland involves issues related to drugs, prohibited weapons, search warrants, Charter challenges(s. 7, 8, 10(

a) and 10(b)), and DNA evidence. Mr. LeBlond is a highly-skilled criminal defence lawyer widely regarded by both thebench and the bar for his professional expertise. Both Damiond Sutherland and Colin Durrand want Mr. LeBlond to represent them intheir respective matters before the court. Damiond Sutherland is aware Mr. LeBlond represents Colin Durrand in other matters and ColinDurrand is aware Mr. LeBlond represents Damiond Sutherland in the matter before the court. Damiond Sutherland sat through theCrown’s application and has received and reviewed all its filed materials.

Damiond Sutherland is prepared to sign a waiver and seekindependent legal advice if the court so directs. Legal principles [17]

Section 3.4-1 of the Code of Professional Conduct for British Columbia provides that a lawyer must not act or continue to act fora client where there is a conflict of interest, except as permitted under that code. In their commentary to this section, the Benchers state: [A] conflict of interest exists where there is a substantial risk that a lawyers’ loyalty to or representation of a client would be materiallyand adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person.

The riskmust be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising fromthe retainer. . . . [18] In this case, the Crown seeks direction from the court whether such a conflict exists given Mr. LeBlond’s relationship with ColinDurrand and Colin Durrand’s proximity to the events giving rise to the charges against Damiond Sutherland. [19] The Crown relies on R. v. Cocks, 2012 BCSC 1336, wherein two counsel from the same firm were disqualified from acting fortwo of seven co-accused on charges of second-degree murder.

Both accused signed waivers, and a conflict had already occurred. JusticeSilverman found there was a substantial risk of a conflict, and “to continue as counsel would result in the possibility of real mischiefbearing on the fundamental fairness of the trial and the public’s perception of the fairness of the trial”.

In Cocks (at para. 10), JusticeSilverman distilled the following principles governing an application to remove counsel: [10] At the risk of over-simplification for a final time, there is little dispute that the following legal principles are applicable to anapplication such as this, and I will paraphrase the words of counsel as I relate them. These are the principles that guide me: 1. The right to counsel of choice is vital and important, but it is not an absolute right and is subject to reasonable limitations: R v.Speid (1983), (ON CA), 3 D.L.R. (4th) 246 (Ont. C.A.) and R v.

Robillard (1986), (ON CA) 28C.C.C. (3d) 22 (Ont. C.A.).

2. There is no absolute bar to joint representation of co-accused by one or more lawyers of the same firm. 3. The over-arching principle of public confidence in the administration of justice requires that a lawyer who represents a client be freefrom any conflict of interest: Robillard, Speid. 4. There is a heavy onus on the defence to ensure that there is no conflict arising from the joint representation of co-accused: R. v.W.W. (1995), (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.) 5. There is an obligation on the Crown to raise a disqualification issue at the earliest possible stage. 6.

The issues of timing do not detract from the importance of deciding the conflict on its merits once presented. It is the fundamentalfairness of the criminal trial which is the paramount concern. 7. The court has an inherent and supervisory jurisdiction to ensure that legal proceedings are fair and conducted in a manner that appearsfair to the public. As an exercise of supervisory jurisdiction, a court is always required to consider the public interest and the need forpublic confidence in the administration of criminal justice. 8. The constitutional right to counsel includes the right to effective counsel: W.W.

In particular, public confidence in the administrationof justice requires that a lawyer who represents a client be free from any conflict of interest. The mere appearance of a conflict mayundermine public confidence in the administration of justice: R. v. Neil, 2002 SCC 70, Speid. 9. The court will also take steps to support public confidence in the administration of justice by avoiding later conflicts that mightemerge and thereby result in a mistrial. 10.

Once there has been a relationship of concern established between the retainers in which a lawyer is involved, there is a rebuttablepresumption that relevant confidential information was in fact received by counsel. In that circumstance, the court should infer thatconfidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. 11. The court's degree of satisfaction must be such that it would withstand the scrutiny of the reasonably informed member of the publicthat no such information is passed.

The burden must be discharged without revealing the specifics of the privileged information. Thedoor should not be shut completely on a solicitor who wishes to discharge this heavy burden. That wording, partly paraphrased, comesfrom the case of MacDonald Estate v. Martin, (SCC), [1990] 3 S.C.R. 1235. 12. The foundation of the lawyer-client relationship rests on the duty of loyalty which includes the duty not to divulge confidentialinformation. The duty of loyalty may operate to disqualify counsel from accepting another retainer where the interests of two clients arematerially adverse. 13.

The threshold for removing counsel for reasons of conflict of interest is a high one. A litigant cannot be deprived of his choice ofcounsel without good cause, compelling reasons or in exceptional circumstances: MacDonald Estate. 14. The standard to be met is "the possibility of real mischief", that is from MacDonald Estate, sometimes referred to as "the substantialrisk test", from R. v. Neil. A realistic risk of a conflict of interest requires that the evidence be more than theoretical or strictlyspeculative. 15.

The question of whether a conflict exists, which will be of concern for the court, depends on the facts in each case: R. v.Brown, 1998 CarswellOnt 5908 (Ct. J. (Gen. Div.)). 16. A waiver which may be signed by the clients in such cases must be considered as a factor in terms of whether or not there is someunfairness which may operate with respect to the clients, and in terms of the context of the greater issue of public confidence: R. v.Con-Drain Co.

(1983) Ltd., 2008 ONCJ 114. 17. Even with a waiver, there may sometimes be untenable conflicts which could materialize. Even the word irrevocable may notnecessarily result in an ultimate finding of irrevocability. [20] There is no doubt that by virtue of its inherent power to supervise and control the proceedings, the court has the power todisqualify a lawyer in a conflict of interest. I am also acutely aware that to disqualify Mr. LeBlond from acting for Damiond Sutherlandin this matter interferes with the accused’s choice of counsel.

Compelling circumstances which justify such measures arise where “thereis a realistic possibility that the conflict may negatively affect the trial process or diminish the public's confidence in the judicialsystem:” R. v. Quiriconi, 2011 BCSC 1737, para. 13. [21] In Quiriconi, Justice Rogers, after finding that no conflict existed between the lawyer and his client as a result of a valid waiver,went on to disqualify the lawyer from acting given the public interest in protecting the integrity and fairness of the criminal justicesystem (see paras. 24 and 25).

ANALYSIS [22] Damiond Sutherland is facing trial on extremely serious charges. The court must balance its concern about actual, potential, orapprehended conflict against Damiond Sutherland’s fundamental right to the effective assistance of counsel and choice of counsel.Damiond Sutherland is facing trial on extremely serious charges. Mr. LeBlond has represented him for almost a year. DamiondSutherland is entitled to his counsel of choice, unless there are compelling reasons to interfere with this right. Still, DamiondSutherland’s right to counsel of choice is not absolute.

He cannot choose counsel who has a conflict of interest in circumstances thatwould detrimentally affect the administration of justice. [23] Mr. LeBlond submits his representation of Damiond Sutherland will not (

a) risk his misusing any confidential information

received from Colin Durrand; nor (

b) place himself in a situation that jeopardizes his effective representation of either DamiondSutherland or Colin Durrand. Mr. LeBlond disputes his representation of both accused establishes a “relationship of concern” referencedin para.10 of Cocks. Mr. LeBlond points out that Damiond Sutherland was arrested immediately upon opening the door for the RCMP onAugust 9, 2020. Colin Durrand, although arrested on an outstanding warrant, was never charged with any offence arising out of theAugust 9, 2020 police raid.

The investigation as particularized in the Crown disclosure does not raise the spectre that by representingDamiond Sutherland, Mr. LeBlond may be acting against the interest of Colin Durrand or misusing confidential information obtainedfrom Colin Durrand. Moreover, Mr. LeBlond’s representation of Colin Durrand on an unrelated matter will not jeopardize his effectiverepresentation of Damiond Sutherland in the matters now before the court. In other words, Mr.

LeBlond’s representation of both clientson unrelated matters is not incompatible with his duty of undivided loyalty to each of them. [24] In Neil, Binnie J. writing for the court discusses the competing interests of client loyalty and the litigant’s right to counsel ofchoice. He states at para. 14: [14] These competing interests are really aspects of protecting the integrity of the legal system.

If a litigant could achieve anundeserved tactical advantage over the opposing party by bringing a disqualification motion or seeking other “ethical” relief using “theintegrity of the administration of justice” merely as a flag of convenience, fairness of the process would be undermined. This, I think, iswhat worried the Newfoundland Court of Appeal in R. v. Parsons (1992), (NL CA), 100 Nfld. & P.E.I.R. 260, wherethe accused was charged with the first degree murder of his mother.

The Crown sought to remove defence counsel on the basis that hehad previously acted for the father of the accused in an unrelated matrimonial matter, and might in future have to cross-examine thefather at the son’s trial for murder. The accused and his father both obtained independent legal advice, after full disclosure of the relevantfacts, and waived any conflict. The father also waived solicitor-client privilege. The court was satisfied there was no issue of confidentialinformation.

On these facts, the court concluded that “public confidence in the criminal justice system might well be undermined byinterfering with the accused’s selection of the counsel of his choice” (para. 30). [25] At para. 29, Binnie J. established a “bright line rule” preventing a lawyer from acting against a second client contrary in interestto an existing client without their consent: [29] . . .

The bright line is provided by the general rule that a lawyer may not represent one client whose interests are directly adverseto the immediate interests of another current client — even if the two mandates are unrelated — unless both clients consent afterreceiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to representeach client without adversely affecting the other. [Emphasis in original.] [26] In this case I have considered: a. I do not find the Crown seeks to have Mr. LeBlond disqualified for any tactical advantage.

It is the Crown’s duty to bring a potentialconflict to the court’s attention; b. I do not find the Crown’s position to be founded upon conjecture and assumption; c. Although there has been some delay in raising the conflict issue, I cannot say there has been an inordinate delay; d. The Charter of Rights and Freedoms enshrines the right of an accused person to counsel of choice; e. Damiond Sutherland is facing serious charges which attract a lengthy term of imprisonment if convicted. He has chosen Mr. LeBlondto represent him. Mr.

LeBlond is senior counsel experienced in representing persons accused of drug and firearm offences; f. There is not a large pool of legal counsel in the Prince George area with Mr. LeBlond’s expertise available to represent DamiondSutherland in this matter; g. If the court were to disqualify Mr. LeBlond as legal counsel, there is an excellent chance the trial dates will be lost and further delayensued; h. Damiond Sutherland and Colin Durrand are not co-accused on this or any other matter; i. There is no evidence Mr. LeBlond is in an actual conflict; j.

To date, Colin Durrand is not a witness for the Crown or the defence. Although this could change, given the passage of time andproximity of the trial, I consider this an unlikely occurrence; k. I am not aware that Mr. LeBlond’s present and prior representation of Colin Durrand is substantially connected to the allegationsagainst Damiond Sutherland now before the court; l. I have no evidence of Mr. LeBlond having received strategic or confidential information attributable to his solicitor-clientrelationship with Colin Durrand relevant to the prosecution of Damiond Sutherland, or vice versa; m.

The Crown bears the burden of proving beyond a reasonable doubt that Damiond Sutherland possessed the impugned items ascharged on Informations 74064-1 and 74065-1. The accused has no burden of disproving knowledge and control of those items bycasting the blame onto Colin Durrand or any other occupant of 1678 Kenwood; n. Damiond Sutherland attended the hearing of the Crown’s application and is aware of its concerns about a potential conflict ofinterest; o. Damiond Sutherland has not signed a waiver, but is prepared to do so;

p. Damiond Sutherland has not sought independent legal advice, but is prepared to do so; and q. Should the conflict of interest move from the theoretical to the realistic, Mr. LeBlond accepts he will have to withdraw as DamiondSutherland’s legal counsel in this matter. [27] In Quiriconi, Justice Rogers cited (at para. 23) the following passage from R. v. Parsons, (NL CA): [23] . . .

While the public has a definitive interest in the fairness of process designed to resolve private disputes, this concern is heightened incriminal matters as public confidence in the integrity and fairness of the criminal justice system is indispensable to modern society.Therefore, the ultimate fairness of a public prosecution cannot be left entirely to private compact of the individuals immediatelyconcerned.

Whilst waivers and consents will remain important considerations, the test as to whether use of confidential informationmight occur should be applied, regardless of the presence of consents of immediately affected parties, in all criminal proceedings wherethe disqualification of counsel for conflict of interest in circumstances like the present case is in issue.

If the conclusion is that such usemight occur, then this fact should be balanced against the existence of the consents in an assessment of the overriding concern of thepublic perception in the fairness of the process. [Emphasis in original.] [28] At para. 24 of Quiriconi, Justice Rogers noted there are some situations where consent is simply ineffective, notwithstanding thegood faith and intentions of the lawyer and the clients.

The litigation may unfold in such a way that the lawyer cannot continue to act,regardless of the consent obtained: [24] None of these dicta describe a rule that requires a lawyer to be removed from the case even though there is a waiver which fullyand effectively vitiates a legally recognized and relevant conflict of interest.

Rather, these passages indicate that if the appearance ofconflict, as opposed to the presence of conflict, is sufficient to shake the public’s confidence in the integrity, fairness or reliability of thecriminal justice system, then the lawyer whose presence creates that appearance must be disqualified.

The belief that underlies thisprinciple must be that even though the public knows that a legally valid waiver exists, nevertheless the connections between the lawyerand his former and present clients, the connections between the clients themselves, and the connection of the clients to the matters atissue are such that the public would think that waiver is not sufficient to displace the resulting odour of unfairness and impropriety. [Emphasis in original.] DISPOSITION [29] I considered all the evidence on this application, the significant issues raised, including the right to counsel and the public interestin the integrity and fairness of the judicial system.

I do not find it is necessary to disqualify Mr. LeBlond at this time. I accept that atsome point in these proceedings there is a chance the conflict issue may resurface. However, I am required to adjudicate this applicationon its merits on the record before me. At this time, neither the Crown nor the defence intend to call Colin Durrand as a witness. There isno evidence Mr. LeBlond has received from Colin Durrand confidential information which could be misused, or that Mr. LeBlond’s dutyof loyalty to Damiond Sutherland would be materially and adversely affected by his duty to Colin Durrand.

Currently, the risk is no morethan a mere possibility. [30] In my view, to disqualify Mr. LeBlond would prejudice the integrity of the justice system by unnecessarily impairing DamiondSutherland’s access to justice and the right to counsel of his choice. I find the appropriate remedy is for Damiond Sutherland and ColinDurrand to obtain independent legal advice and sign waivers if they still wish to proceed with Mr. LeBlond as their legal counsel in theirrespective matters. Should at some point the risk to his duty of loyalty to his client progress from a mere possibility to a genuine realisticrisk, then Mr.

LeBlond will have to withdraw as legal counsel. _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia