R. v. Stewart, 2011 ONCJ 114

Citation: R. v. Stewart , 2011 ONCJ 114 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — NEIGABE STEWART Before Justice D.P. Cole Heard on March 3 & 4, 2011 Reasons for Judgment released on March 16, 2011 P. Tsui ..................................................................................................................... for the Crown N.

Giuffre .............................................................................................................. for the accused COLE J.: [ 1 ] This is an application by Crown counsel pursuant to Rule 24 of the Rules of the Ontario Court of Justice in Criminal Proceedings to have defence counsel Edward Royle removed as counsel of record for this accused [1] , on the basis that counsel is in an irremediable conflict of interest as between his current client Neigabe Stewart and his former client Alzobair Ahmed. Mr. Stewart has instructed counsel to resist the application, and Mr.

Ahmed’s new counsel has specified in writing that his client “waive(

s) any right he may have to object to Mr. Royle continuing to represent Neigabe Stewart”. [ 2 ] This motion has come before me in my capacity as the Justice scheduled to preside over a forthcoming preliminary inquiry involving Messrs. Stewart and Ahmed (and 15 others). [ 3 ] Though there is a considerable body of case law, legal commentary and federal and provincial ethical rules for lawyers, as far as I am able to determine this motion is quite unique in that the relief sought is to disqualify counsel from acting prior to the commencement of a preliminary inquiry, not during or in anticipation of a trial.

Crown counsel is entirely candid as to why this motion has been brought at this stage. It is one of a series of motions to disqualify counsel from the same firm acting for co-accused in Project Corral and, presumably, other large-scale “street gang” prosecutions that may be forthcoming. He writes in his factum: “There can be no serious dispute that the public is extremely concerned about the increasing violence perpetrated by street gangs.

The ability of street gangs to prevent other gang members, as well as members of the community, from providing police with necessary evidence for prosecution has made the apprehension of gang members responsible for violent crime extremely difficult. The police and multiple levels of government across the province have made huge efforts to obtain the necessary resources in order to effectively investigate, arrest and prosecute alleged gang members, who typically are bonded together by a code of silence.

It is against this backdrop the potential mischief to the public interest and confidence in the administration of justice that could be occasioned by allowing the subject lawyers to remain as counsel for the accused herein must be assessed. It is the position of the Applicant Crown that continued representation of any of the accused herein by the subject lawyers puts the public interest and confidence in the administration of justice at grave risk” (para. 69). By agreement of counsel, I will be dealing with the Crown’s other motions separately.

Though the broad principle raised by the Crown is the same, the matter of Mr. Royle’s continuing representation of Mr. Stewart has been split off from those motions because, factually, it raises a discrete issue. FACTUAL BACKGROUND [ 4 ] On May 4, 2010 the accused was arrested, along with 87 other adults and 3 young persons, as part of a police initiative known as Project Corral. Mr. Stewart stands charged with some ten offences under the Criminal Code or the Controlled Drugs and Substances Act . [ 5 ] Mr. Stewart retained Mr. Royle to represent him on these charges.

In an affidavit filed in response to the Crown’s motion Mr. Royle deposed that he sent one of his associates, Ms Tanya Thompson, to represent Mr. Stewart at his bail hearing, at the conclusion of which Mr. Stewart was detained in custody, where he remains to date. [ 6 ] One of Mr. Stewart’s co-accused on these four charges is Alzobair Ahmed. Though he is named in the same Information under which Mr. Stewart stands charged, Mr. Ahmed was not arrested by the police on May 4, 2010, as he was in custody in Sault St. Marie on other charges.

He was not brought to Toronto to answer to the Project Corral charges until June 14, 2010. Mr. Royle deposed in his affidavit that prior to Mr. Ahmed being brought to Toronto, Mr. Ahmed’s brother contacted him to request that he

represent Mr. Ahmed, which Mr. Royle agreed to do. Mr. Royle detailed another of his associates, Ms Jordana Goldlist, to appear toconduct the bail hearing, which she did. Ms Goldlist deposed in her affidavit – and this was supplemented when Mr. Royle gaveevidence on this application – that she immediately realized that Mr. Ahmed had “no realistic likelihood of…being released on bail…[so] the purpose of conducting the bail hearing was to determine the nature and strength of the case against him”. [7] Since the nature and content of the relationship between Mr. Royle and Mr.

Ahmed is central to this application, it isworth quoting directly from the affidavits filed. Mr. Royle deposed: “I have never acted for Mr. Ahmed before. Prior to his bail hearing, I had never spoken to Mr. Ahmed. I have never met Mr. Ahmed. Idid speak to Mr. Ahmed several times on the phone in the summer and fall of 2010. I never discussed anything with Mr. Ahmed abouthis background nor have I ever received anything confidential about him” (emphasis added). Though it could perhaps have been more carefully worded, I infer that the last phrase means that Mr.

Royle never personally receivedany confidential instructions from Mr. Ahmed directly. Ms Goldlist deposed: “At no time before or during the bail hearing did I discuss with Mr. Ahmed the allegations against him. I have never received anyconfidential information from Mr. Ahmed about his background or about the allegations against him”. It thus follows as a matter of logic that Ms Goldlist could not have transmitted to Mr. Royle any confidential information provided byMr. Ahmed simply because she had none. [8] As in other “project” cases disclosure in this case is voluminous.

I have been told that it is estimated that if all of thevarious CDs, DVDs and portable hard drives were combined with the paper disclosure for each accused, it would amount to some 110banker’s boxes @ 2500 pages each, likely with more to come. Not surprisingly, it has taken many months for disclosure to be provided todefence counsel. In fact, I am told that even now it is not complete, notwithstanding that the preliminary inquiry I am to conduct – one offour - is scheduled to start on May 30, 2011. [9] While disclosure was pending one of the Crown counsel prosecuting this case wrote to Mr.

Royle (and other counsel)expressing concern that defence counsel might be in a conflict of interest by representing more than one accused – in this case Mr.Stewart and Mr. Ahmed. I gather from the materials filed that this was followed up by telephone calls and remarks being placed on therecord during routine court appearances. Mr. Royle replied by letter as follows: “With respect to the conflict issue, I maintain that there is none. However, rather than get into an argument about this issue, I haveadvised Mr. Ahmed that he must retain new counsel. I have never actually met Mr.

Ahmed nor have I ever acted for him in the past. Iunderstand that Mr. Douglas Usher will now be representing Mr. Ahmed.” [10] It is an agreed fact that while Mr. Usher shares space with Mr. Royle’s firm, organizationally his legal practice iscompletely separate from that of Mr. Royle. [11] This did not satisfy Crown counsel, who wrote to Mr. Royle in January 2011. His first concern was that Mr. Usher wasnot sufficiently separate from Mr. Royle.

He quoted one of the leading cases from the Supreme Court of Canada on conflict of interest tothe effect that “even absent any profit-sharing, partnership ties, or practice integration, there is a presumption that the sharing of spaceleads to the genuine risk of the sharing of a client’s confidential information”. He wrote: “Notwithstanding your duty to avoid acting against a former client in the “same matter”, you are bound by a continuing duty to protectMr. Ahmed’s confidential information.

Compounding the Crown’s concerns is the appearance of conflict of interest flowing from thefact that you share offices with counsel for Mr. Ahmed and the inherent risk of sharing of confidential information. Given that, untilrecently, your office has represented Mr. Ahmed at numerous court appearances, at judicial pretrials, and conducted a bail hearing on hisbehalf, a reasonable informed person would conclude that you possess confidential information that could be used to Mr. Ahmed’sprejudice. See Regina v. S. (A.) (1996) (ON SC), 28 O.R. (3d) 663 (Ont. Gen. Div.).

I understand that you conduct a separate law practice from Mr. Usher in the same premises. However, your shared facilities with Mr.Ahmed’s lawyer gives rise to a strong appearance for the risk that Mr. Ahmed’s confidential information could be compromised. Thefact that this correspondence is sent to you and Mr. Usher by way of the same fax number underscores this very risk. Because of thissituation, the Crown is obligated to raise this issue to seek clarification on what measures you have taken to prevent the transmission ofconfidential information between yourself and Mr. Usher.” [12] Mr.

Royle refused to cease acting for Mr. Stewart. Mr. Tsui again wrote to Mr. Royle reiterating that the Crowncontinued to take the position that Mr. Royle is in a “position of potential and actual conflict of interest with respect to yourrepresentation of Neigabe Stewart and Alzobair Ahmed, both of whom are co-accused in Project Corral”. Mr. Tsui specifically drew Mr.Royle’s attention to four counts in the Information where Messrs.

Stewart and Ahmed stand jointly charged: Participation in the Activities of a Criminal Organization – Trafficking in a Controlled Substance (Count 1); Participation in the Activities of a Criminal Organization – Conspiracy to Possess Firearms (Count 2); Conspiracy to Traffick in Cocaine (Count 210); Participation in the Activities of a Criminal Organization – Trafficking in a Controlled Substance (Count 211); He wrote:

“From your own review of the disclosure, you are no doubt aware that they are alleged to have participated in the same criminal organization and that in numerous intercepted calls between themselves and to other parties, Mr. Ahmed and Mr. Stewart implicated one other in drug trafficking and other offences. In representing both Mr. Ahmed and Mr. Stewart, it was a clear case of conflict on the basis that the two accused are charged with offences related to the same criminal organization, they are co-conspirators and co-accused, and they implicate each other in the commission of criminal offences.

To represent both accused you would be in breach of your duties of loyalty and confidentiality to one or both of the clients. I presume this is the reason you removed yourself as counsel of record for Mr. Ahmed. Your continued representation of Mr. Stewart, however, still puts you in actual conflict with Mr. Ahmed in the above-noted counts. The Crown’s position is that because you are in a conflict of interest, the only acceptable recourse is withdrawal by counsel forthwith. Please be advised that this position has been formulated based on disclosure already given to you.

It is our view that you are in receipt of sufficient disclosure to make an informed decision on this issues.” This was supplemented by the affidavit of Det. Tony Azarraga, who deposed that it is the police view that Messrs.

Stewart and Ahmed are senior members of what is called the “Shower Posse”, which the police consider to be a criminal organization as that term is defined within the meaning of s.467.1(1) of the Criminal Code . [ 13 ] Though I have no further documentation as to further communications on this issue between Crown and defence, it is obvious from the affidavits referred to in para. 7, supra , and para. 17, infra , Mr. Royle continues to maintain that he is not in a conflict of interest, and that Mr. Stewart still wishes Mr.

Royle to represent him. [ 14 ] What I next have before me in the chronology of events is that, obviously in anticipation of this motion, Mr. Royle drafted an affidavit which he presented to Mr. Usher with a request that (

a) he review with Mr. Ahmed, and (

b) if Mr. Ahmed was satisfied with its content that he have Mr. Ahmed swear to it (which he did). The salient paragraphs of that affidavit read as follows: 4. During my conversations with Mr. Royle before Mr. Usher took over my case, we have (sic) never discussed the allegations against me. In addition, Mr. Royle and I have never discussed anything about my background and personal circumstances. I have never provided any confidential information to Mr. Royle and he has never provided any information about anyone or anything to me. 5.

My current lawyer, Mr Usher, has explained to me the rules and obligations of lawyers regarding conflict of interest. I have no objection to Mr. Royle continuing to represent Neigabe Stewart in this case. I specifically waive any claim that I may have to object to Mr. Royle’s continued representation of Neigabe Stewart. [ 15 ] Mr. Usher replied to Mr. Royle that he had explained to Mr. Ahmed “the relevant elements of the law of conflicts as well as the rules and obligations of lawyers regarding conflicts of interest in criminal cases”. He further wrote that he was satisfied that Mr.

Ahmed “fully understands these issues both in general and in specific”, and that in his opinion Mr. Ahmed’s waiver of any objection to Mr. Royle continuing to represent Mr. Stewart was based on his “informed consent”. [ 16 ] When cross-examined about the affidavit he requested Mr. Usher review with Mr. Ahmed, Mr. Royle conceded that it does not specify that Mr. Ahmed understands that he may be cross-examined by Mr. Royle should he elect to testify. He replied by saying that it was – and is – his view that the affidavit and accompanying letter “are unequivocal”. [ 17 ] Mr.

Royle concurrently requested that another criminal defence counsel, Mr. Russell Silverstein, provide “independent legal advice regarding the issue of conflict of interest” to Mr. Stewart. As with Mr. Ahmed, Mr. Royle drafted an affidavit which he presented to Mr. Silverstein with a request that (

a) he review with Mr. Stewart, and (

b) if Mr. Stewart was satisfied with its content that he have Mr. Stewart swear to it (which he did). The salient paragraphs of that affidavit read as follows: 2. I have been informed that Mr. Royle briefly represented one of the co-accused in my case, Alzobair Ahmed. I have also been informed that the Crown is objecting to Mr. Royle continuing to represent me on the basis that he has a conflict of interest. 3. I have received independent legal advise (sic) regarding conflict of interest and how it affects a lawyer’s ability to conduct a case.

It has been explained to me what a lawyer’s duties and obligations are whenever a conflict of interest exists. I have no objection to Mr. Royle continuing to represent me. Mr. Royle has been my lawyer in the past and I want him to continue as my lawyer. I waive any right that I may have to object to Mr. Royle continuing to represent me. [ 18 ] Mr. Silverstein replied to Mr. Royle that “[b]ased on discussions with Mr.

Stewart I am satisfied that he is aware of, and fully understands the duties and obligations of lawyers regarding any conflict of interest that may arise in the court of legal representation in a case”, and that “I specifically discussed with Mr. Stewart the issue of conflict of interest in this case as it relates to you and Alsobair Ahmed”. [ 19 ] When Mr. Royle was cross-examined, he conceded that he had not provided Mr. Silverstein with any portions of the Crown disclosure brief regarding the criminal charges. Nor did he request that Mr. Silverstein review any of the substance of the allegations against Mr.

Stewart (such as the approximately 175 telephone intercepts that apparently underpin the Crown’s case against both of these accused on the four charges mentioned supra ). He further conceded that he did not ask Mr. Silverstein to discuss what options might be available to Mr. Stewart (such as possible pleas or elections). Mr. Royle entirely accepted Crown counsel’s suggestion that Mr. Silverstein could not have properly advised Mr. Stewart as to the merits of pleading guilty. Mr. Royle explained that since his instructions from Mr.

Stewart have consistently been – and remain - that he intends to plead not guilty, there was no point in asking Mr.

Silverstein to review anything but the “conflict issue”. [ 20 ] I should also add that under cross-examination Mr. Royle conceded that it was possible that Mr. Stewart or Mr. Ahmed could revoke their waivers at any time. LEGAL ARGUMENTS REGARDING CONFIDENTIAL INFORMATION A. Defence counsel is in an actual conflict of interest because he is already in possession of confidential information about his former client. [ 21 ] Crown counsel’s position that Mr. Royle must be removed as counsel for Mr. Stewart on the basis that he is in possession of confidential information about Mr.

Ahmed stems directly from the concerns expressed by Sopinka J. in the leading case of MacDonald Estates to the effect that “[t]he lawyer cannot compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere. Furthermore, there would be the danger that the lawyer would avoid use of information acquired legitimately because it might be perceived to have come from the client” (para. 47). [ 22 ] With respect, though it may well have been appropriate for Crown counsel to raise this issue before any evidence was forthcoming from Mr.

Royle and Ms Goldlist, the various affidavits now available lead me to the conclusion that there is nothing in the record that would reasonably suggest that this is the case. While I fully acknowledge the Crown’s point that a space sharing arrangement can give rise to a considerable presumption that confidential information can be or has been shared, the case law is clear that this can be rebutted by evidence. In this case, the affidavits filed by Mr. Royle, Ms Goldlist and Mr. Ahmed, supplemented by Mr.

Royle’s testimony, all are ad idem that apart from providing simple biographical information necessary to conduct a bail hearing (Mr. Royle gave examples of “family contacts, birthdate, criminal record and work history”), Mr. Ahmed at no time discussed the allegations against him with either Mr. Royle or Ms Goldlist. Indeed, while neither counsel has provided me with a transcript of the bail hearing, it would seem to be a reasonable inference that much of what Mr.

Royle or Ms Goldlist have learned about their former client comes from the public record of what was said at the bail hearing, and from Crown disclosure. [ 23 ] Furthermore, I find Mr. Usher’s silence on this point to be significant. As a vigorous advocate for his client, had Mr. Usher felt that Mr. Royle was in possession of confidential information about Mr. Ahmed, I have little doubt he would have either urged him to get off the record for Mr. Stewart, or would – if necessary - have brought a similar motion to that launched by the Crown. B.

Defence counsel is in a potential conflict of interest because he might come into possession of confidential information about his former client. [ 24 ] Mr. Royle was entirely candid that none of the sometimes very elaborate “ethical walls” [2] that have been created by civil firms to avoid potential conflicts of interest exist within his small criminal firm. He testified that there are no formal “Chinese walls… to prevent the transmission of confidential information between [his firm] and Mr. Usher”. Mr. Tsui made the point that Mr.

Royle is particularly aware of this issue, because it arose in another “Project” case in which he was involved, where, in a firm in which he was previously a senior partner, he caused an email to be sent “to all members of the firm…directing them not to discuss any aspects of the adult Project Flicker clients with Ms Myers [the lawyer in the firm representing a youth D.D.]…[in order to erect] a “Chinese Wall” around Ms Myers and the defence of D.D.” ( R. v. D.D. [2006] O.J. No. 4913 (Ont. C.J.) at para. 72 ). [ 25 ] Though I suppose it is possible that, under cover of darkness, Mr. Royle might sneak into Mr.

Usher’s office and look through his “Ahmed file” – or, in more contemporary argot, improperly log on to his computer - Crown counsel expressly eschewed relying on the spectre of such unethical behaviour. Mr. Tsui specifically accepted that Mr. Royle and Mr. Usher conduct their advocacy in a highly professional and ethical manner. He preferred to advance the argument that Mr. Royle is potentially conflicted at the level of public perception i.e. that a properly informed member of the public would reasonably perceive that Mr. Royle will not be able to provide vigorous representation of Mr.

Stewart, because “he cannot be unconflicted” as a result of his representation of Mr. Ahmed. As Mr. Tsui pithily put it: “once a conflict, always a conflict…that can present itself at any time”. [ 26 ] This is one of the conclusions Bovard J. determined in D.D. : “I find that a reasonably informed member of the public could infer that Ms Myers might possibly inadvertently use confidential information about adult Project Flicker clients represented by [the same firm] against their interests. It would be too difficult to screen such information out.

Also, there would be the danger that information she obtained legitimately that could help D.D. might not be used in order to avoid the appearance that it was obtained through the unacceptable exchange of confidential information between [the law firm’s] Project Flicker lawyers” (para. 232).

His Honour concluded that Ms Myers was “in an irremediable conflict of interest and that there [were] compelling reasons that require her removal from the record” (para. 2). [ 27 ] In evaluating the strength of this argument, I think it is important to keep in mind that D.D. involved determination that counsel was in a conflict of interest were she to be permitted to continue to act for the youth at his forthcoming trial . [3] This is very different from the case at bar, where what I am charged with doing is conducting a preliminary inquiry .

In my view, many of the concerns raised by Crown counsel that would seem to be entirely valid if this were to be a trial do not appear at this stage to be insurmountable problems at a preliminary inquiry. However, since Crown counsel properly concedes that his arguments on this point are substantially identical to his arguments that Mr. Royle cannot continue to represent Mr. Stewart without breaching his “duty of loyalty” to both Mr. Stewart and Mr.

Ahmed, it will be useful to defer discussion of these until after I briefly describe the content of the “duty of loyalty” as it appears in the Law Society of Upper Canada’s Rules of Professional Conduct and as it has been interpreted in recent case law. LEGAL ARGUMENTS REGARDING THE “DUTY OF LOYALTY” [ 28 ] While he in no way resiled from his arguments that defence counsel is compromised because of actual or potential

conflicts of interest arising from possession of confidential information about Mr. Ahmed, Crown counsel conceded that he consideredhimself on better ground in arguing that Mr. Royle cannot act because of the “duty of loyalty” he owes to both his present and formerclient. [29] I start by noting that it is obviously the view of the Law Society of Upper Canada[4] that a lawyer’s duty ofconfidentiality and a lawyer’s duty to avoid conflicts of interest are separate obligations.

Rule 2.03 of the Rules of Professional Conductdeals with “Confidentiality”, while Rule 2.04 is entitled “Avoidance of Conflicts of Interest”. The salient portions of that latter rule readas follows: 2.04(1) In this rule a “conflict of interest”…means an interest (

a) that would be likely to affect adversely a lawyer’s[5] judgment on behalf of, or loyalty to, a client….

(2) A lawyer shall not advise or represent more than one side of a dispute.

(3) A lawyer shall not act or continue to act in a matter when there is or is likely to be a conflicting interest unless, after disclosureadequate to make an informed decision, the client…consents

(4) A lawyer who has acted for a client in a matter shall not thereafter act against the client or against persons who were involved in orassociated with the client in that matter (

a) in the same matter… [30] The reason I mention this distinction is because it is only relatively recently that the “duty of loyalty” has emerged in caselaw as a separate basis on which a lawyer may be disqualified from acting. The 1990 case of MacDonald Estates was decided by theSupreme Court of Canada on the basis that the law firm in question was deemed to be in a conflict of interest because one of the lawyerswas in possession of confidential information about a previous client. However, in its 1992 decision in R. v.

Neil 2002 SCC 70 ,[2002] 3 S.C.R. 631, the Supreme Court of Canada expressly held that: “While the Court is most often concerned with uses and abuses of confidential information where it is sought to disqualify a lawyer fromfurther acting in a matter, as in MacDonald Estates…the duty of loyalty to current clients includes a much broader principle ofavoidance of conflicts of interests, in which confidential information may or may not play a role” (para. 17, citations omitted; emphasisadded). [31] In Consulate Ventures Inc. v. Amico Contracting & Engineering

(1992) Inc. 2010 ONCA 788 , [2010] O.J. No.4996 the Ontario Court of Appeal very recently dealt with this issue in considering a motion to remove appellate counsel on the basis thathe had briefly represented the respondent some 11 years previously in the same matter. Writing for the Court Doherty J.A. said: “Counsel submits that lawyers owe a duty of loyalty to their former clients.

That duty is not premised on or confined to confidentialityobligations, but flows from a broader concept of fidelity that is essential to the proper functioning of the client/solicitor relationship….[C]lients must be confident that their lawyers will not become their adversaries’ lawyers at some subsequent point in the course of thesame dispute….There is also concern that if lawyers act against their former clients in the same manner, the public confidence in theintegrity of the legal profession will suffer. That confidence is crucial to the effective and just administration of justice” (para. 22).

Ms Giuffre of course invites me to distinguish this case on the basis that the conflict in that case was clear. The very fact that the partieswere arguing over the issue in the Court of Appeal makes that entirely patent.

Thus, while she accepts the general statements in the caselaw that the duty of loyalty is broader than the duty of confidentiality, she says that in the case at bar it is only speculative that Messrs.Stewart and Ahmed will ever be adversaries. [32] I have carefully read the considerable volume of case law submitted by Crown counsel, as well as his well-drafted factumon this issue. (The fact that I have not referred to it in more detail in these reasons reflects the need to come to a speedy resolution of thismotion so that counsel may consider their positions).

While I think that the Law Society’s Rules and the case law giving a broadinterpretation to the duty of loyalty strongly suggest that the most preferable course of action would have been for Mr. Royle to ceaseacting for Mr. Stewart as soon as the conflict was drawn to his attention, I am presently unable to conclude that the extraordinary step ofdepriving a client of his choice of counsel should be permitted at this relatively early stage in the proceedings. As will be demonstrated inthe next few paragraphs, this may change, at which point Mr. Stewart may well find himself in a difficult position.

However, aftergiving anxious consideration to the balance I must make as a preliminary inquiry “justice” between “the effective and just administrationof justice” and the right of choice of counsel, in my judgment the latter must prevail at this stage of the proceedings. [33] Before I leave Consulate Ventures I should refer briefly to one further argument made by defence counsel, because itleads to the next issue I must consider, namely the sufficiency of the waivers signed by Messrs. Stewart and Ahmed.

Ms Giuffre makesthe point that while in his judgment in Doherty J.A. quotes the well-known “conflict” case of R. v. Speid (1983) (ONCA), 43 O.R. (2d) 596 (Ont. C.A.) to the effect that “[the] fiduciary duty…is not terminated when the services rendered have beencompleted” (at 600), in that case the former client (Nugent) expressly objected to her former lawyer’s partner acting for the accusedSpeid. Here Mr. Ahmed, after being advised by independent counsel, has clearly waived any objection he may have to Mr. Roylecontinuing to act for Mr.

Stewart. [34] In his factum Crown counsel properly concedes that there is a body of case law which has determined that an actual orpotential conflict of interest can be “substantively addressed by execution of comprehensive and irrevocable waivers” (para. 68). On thisissue, developed in his cross-examination of Mr. Royle, Mr. Tsui argued that Mr. Stewart’s waiver is legally insufficient, both becauseMr. Silverstein’s remit was limited to providing advice only about conflict of interest, and further that he was not provided with theentire Crown disclosure brief by Mr. Royle. Thus, Mr.

Silverstein could not provide full advice on all matters necessary for Mr. Stewartto make a truly informed decision about whether or not he should waive any objection that he might have to Mr. Royle continuing torepresent him. I agree that in an ideal world Mr. Silverstein would have been given more than he was. However, I am satisfied on the

basis of all the material presented on this issue that Mr. Stewart’s waiver is legally adequate – although perhaps not well advised in thelong run. [35] Other than hinting that Mr. Usher was somehow insufficiently independent from Mr. Royle because they use the same faxnumber, Crown counsel did not seriously attempt to argue that Mr. Ahmed’s waiver was legally insufficient. He rather argued from caselaw that I have “discretion to disqualify because the ultimate fairness of a public prosecution cannot be left entirely to private compact ofthe individuals immediately concerned” (Crown factum, para. 68).

I entirely agree that I have discretion in this regard, and, as will beseen later in these reasons, were I acting as a trial judge, I think I would have little hesitation in overriding Mr. Ahmed’s waiver. But, Irepeat, this is a preliminary inquiry, and many of the issues raised by Crown counsel simply are not applicable at this phase of thecriminal proceeding. The next few paragraphs detail why I have come to this conclusion. [36] Crown counsel’s first argument as to why Mr. Royle cannot continue to act even at this stage of the proceedings is thatMr.

Ahmed might elect to testify at the preliminary inquiry, in which case Mr. Royle’s “duty of loyalty” to Mr. Ahmed would prevent(or estop) him from cross-examining his former client. While I agree that it is technically possible that Mr.

Ahmed might choose totestify at the preliminary inquiry, experience demonstrates that this possibility is so remote as to be completely unfeasible. (While it isnot my place to give evidence, I am allowed to take my experience into account; speaking anecdotally, I have encountered this happeningonly twice in almost 40 years – once by a civil practitioner who clearly did not understand that a preliminary inquiry is not the same as anexamination for discovery, and once by an accused who insisted on testifying over the strong objections of his own counsel).

Withrespect, it seems to me that Crown counsel has wrongly attempted to inject what might be a valid argument for having Mr. Royleremoved as counsel at trial back into the preliminary inquiry. Put another way, Doherty J.A. wrote for the Court of Appeal in R. v. W.(W.) (1995) (ON CA), 100 C.C.C. (3d) 225 as follows: “Where the issue is raised at trial, the court must be concerned with actual conflicts of interests and potential conflicts that may developas the trial unfolds.

In deciding whether counsel should be permitted to act for co-accused, trial judges must to some degree, speculateas to the issues which may arise and the course the trial will take. The trial judges’ task is particularly difficult since they cannot beprivy to the confidential discussions which may have passed between the clients and counsel and which may reveal the source ofpotential conflicts.

Given those circumstances, trial judges must proceed with caution and when there is any realistic risk of a conflict ofinterests they must direct that counsel not act for one or perhaps either accused. [emphases added] Simply put, given the elections of the various accused persons, we are not about to embark on a trial. Whatever may be the theory, withall due respect to Crown counsel’s argument, in the real world the processes of preliminary inquiry and trial are so different that thetransposition cannot be made.

I see no “realistic risk of a conflict of interest” in this regard. [37] Crown counsel’s second argument is based on the fact that both Mr. Stewart and Mr. Ahmed face charges relating towhether the “Shower Posse” is a “criminal organization” as that term is defined in the Criminal Code.

One of the ways this could beproved at the stage of the preliminary inquiry is through having an accused enter a plea of guilty to a “criminal organization offence”,and then tendering evidence of that guilty plea (either by way of filing a certified copy of the proceedings reflecting that plea or bycalling that accused as a witness at the preliminary) as evidence that the “criminal organization” exists (see D.D. at paras. 133-135). IfCrown counsel meant to suggest that Mr. Royle would be in an impossible situation if an accused in this preliminary inquiry other thanMr.

Ahmed were to enter a guilty plea to a “criminal organization” offence, then, with respect, I simply do not understand the argument.If accused “X” (an accused other than Mr. Ahmed) decides to do this, then Mr. Stewart would likely have considerable difficultyresisting a committal for trial on counts 1, 2 & 211. However, I do not at all see how Mr. Royle’s “duty of loyalty” to Mr. Ahmed wouldbe compromised. [38] Both counsel are agreed that “plea offers” have been made to most, if not all accused persons charged in Project Corral,including Mr. Ahmed.

Thus, the alternative branch of Crown counsel’s argument on this point is that Mr. Royle will be impossiblycompromised if, during the preliminary inquiry, Mr. Ahmed enters a plea of guilty to a “criminal organization” offence (or if he becomesa Crown witness in any other way). I agree with Crown counsel that if this happens Mr. Royle will no longer be able to act for Mr.Stewart, as the “duty of loyalty” Mr. Royle owes to his former client will preclude him from attacking Mr. Ahmed in any mannerwhatsoever. In my judgment this clearly stems from the Rules of Professional Conduct and the case law.

Should this happen, Mr. Roylewill not be able to cross-examine Mr. Ahmed, nor will he be able to cast doubt on Mr. Ahmed’s admission of membership in (orparticipation in the affairs of) a “criminal organization”, nor on his reliability as a Crown witness. [39] I have thought long and hard about this issue, and have attempted to balance it against the important – though by nomeans absolute – right of an accused person to be represented by counsel of choice.

Though I acknowledge Crown counsel’s generalpoint that conflicts can – and regrettably sometimes do – arise unexpectedly and suddenly, I come back again to the fact that this is apreliminary inquiry and not a trial. I agree with Crown counsel that Mr. Royle (and Mr. Usher) are seasoned and highly ethical counselwho conduct themselves according to the Rules of Professional Conduct. As such, I am certain that Mr. Royle will take the necessarysteps to anticipate and ensure that any conflicts of interest that may arise will be dealt with consonant with the Rules and other ethicalguidelines.

At the very least, if he has not already done so (and I do not intend to inquire into the contents of the solicitor-clientrelationship) it seems to me clear that Mr. Royle must review with his client in a detailed way that it may become necessary for himeither to withdraw during the preliminary inquiry or to restrict himself in certain lines of cross-examination. To be blunt: were this to be atrial, on the basis of what I have heard to date, I would have no hesitation in removing Mr. Royle as counsel for Mr. Stewart. There aresimply too many ways in which his “duty of loyalty” to Mr.

Ahmed might get in the way of him being able to act fearlessly as Mr.Stewart’s advocate at a trial. [40] In coming to this conclusion I should state for the record that as part of the balancing act I have to consider I have devotedsome thought to the financial and time implications of removing Mr. Royle from the record at this time. (I stress, of course, that thesefactors are not determinative of the issue under consideration).

While I do not know – and do not wish to know – the source of Mr.Royle’s financial retainer, regardless of whether he is privately funded or funded through Legal Aid Ontario, if I were to order him nowremoved, another lawyer would have to “get up to speed” very rapidly, which would no doubt be extremely expensive to either the

private or public purse. Furthermore, I am not unmindful of the fact that Mr. Stewart will have been in custody for almost 13 months by the time the preliminary inquiry is supposed to start, and I have concerns about whether another lawyer will be able to be (

a) available and (

b) prepared to start on May 30. [6] [ 41 ] In a similar vein I have also considered what might happen if I allow Mr. Royle to continue and something not presently known or predictable happens during the course of the preliminary inquiry that would preclude him from continuing to act. While, of course, I would have to adjudicate the issue on its merits at the time, Mr. Stewart should be well aware of the fact that if he elects to continue with Mr.

Royle as counsel, given that there are 16 others currently scheduled to participate in this forthcoming preliminary inquiry (many of whom are in custody), I may well look askance at any requests for adjournment to enable him to retain new counsel. Precisely for this reason, I am making arrangements with court custodial staff to have a copy of this ruling given directly to Mr. Stewart so he may consider his position. [ 42 ] Crown counsel’s third argument is that Mr. Royle cannot ethically make any recommendation to Mr.

Stewart to accept any plea offer, because this would inevitably compromise his “duty of loyalty” to Mr. Ahmed. With this I also agree. I appreciate that Mr. Stewart’s instructions to Mr. Royle have been and continue to be that he is not interested in exploring or accepting a plea offer. However, experience teaches that this can change as disclosure is completed, and as preliminary inquiries get closer or get underway. Should this happen, I would expect that Mr. Royle would retain entirely independent counsel – such as Mr.

Silverstein – to provide his client with proper advice following full perusal of the Crown disclosure brief and the relevant evidence heard at the preliminary inquiry. [ 43 ] (Indeed, should at any time it be contemplated that a plea be entered before me, I would fully expect that Mr.

Stewart would complete a detailed written plea agreement to the satisfaction of Crown counsel that would have the effect of preventing him from any future claim that his plea should be struck on the basis of ineffective representation by counsel). [ 44 ] In their text Ethics and Canadian Criminal Law (Irwin Law, 2001) Proulx and Layton make the following brief comment: “Preliminary Hearings: Even where committal is not in issue, conflicts can be a problem. The preliminary hearing is an important opportunity to lay the groundwork for the trial to attack the Crown’s case and build a defence.

Where current and/or former clients’ roles or interests differ, there is the risk of conflict” (p.303). I of course agree with the authors that there may well be preliminary inquiries in which the risk of conflict is substantial, thereby necessitating the voluntary or forced withdrawal of counsel. And I am also aware that disclosure is not yet complete, which may change the picture. Nevertheless, despite Crown counsel’s ingenious arguments on point, I am satisfied that Mr.

Usher’s current silence on this issue is most instructive in suggesting to me that, for the present, there is no realistic risk of conflict between Messrs. Stewart and Ahmed. [ 45 ] Before announcing my disposition of this motion, I wish to commend counsel for their personal and professional civility throughout. In my experience matters involving the economics of the legal profession can all too rapidly deteriorate into ego-driven finger pointing. There was none of this here; all counsel saw and treated this as the determination of an issue of principle.

DISPOSITION [ 46 ] It is ordered that counsel Joanna Goldlist may not appear on Mr. Stewart’s behalf. [ 47 ] It is ordered that Mr. Royle, assisted as necessary by his associates other than Ms Goldlist, may continue to act for Mr. Stewart. [ 48 ] Should the factual circumstances change, Crown counsel is at liberty to renew this application at any time either up to or during the preliminary inquiry. [ 49 ] In the event of a committal for trial, Crown counsel should be at liberty to renew this application before the trial judge. Released: March 16, 2011 Signed: “Justice D.P.

Cole” [1] I should make it clear from the outset that Crown counsel stipulated throughout that while Mr. Royle or his associates have been retained by other persons accused as part of “Project Corral”, the Crown has no objection to him or his associates continuing to represent those accused, because they are not charged either with conspiracies or with offences relating to being a member of a criminal organization. This application relates only to Mr. Royle’s continuing representation of Mr. Stewart.