R. v. Olson Date:, 2013 BCPC 157

Citation: R. v. Olson Date: 20130111 2013 BCPC 0157 File No: 75590-3KC Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NEIL DONALD OLSON RULING ON APPLICATION FOR MISTRIAL OF THE HONOURABLE JUDGE B.G. HOY Counsel for the Crown: J. Powrie Counsel for the Defendant: J. Ray Place of Hearing: Abbotsford , B.C. Date of Hearing: December 17, 2012 Date of Ruling: January 11, 2013

[1] THE COURT: This is an application for a mistrial. Since conviction there has been a change of defence counsel. The issueraised relates to a conflict within former defence counsel's law firm where one of the other lawyers had represented the complainant'sfather in the past. It was submitted that this gives rise to a disqualifiable conflict. Specifically, it is the law firm that is in conflict and itwas such that the defendant's ability to defend himself was compromised. THE LAW: [2] Counsel has referred to a number of authorities. R. v.

Neil 2002 SCC 70 , [2002] 3 SCR 631 is a particularlyinstructive decision dealing with the question of conflict of interest. There are three elements that are basic to the discharge of counsel'sduties in to his client. [3] First, there is the duty of loyalty. A litigant is entitled to have his counsel's undivided loyalty in the pursuit of effectiverepresentation in our adversarial system and not to divulge confidential information. That duty of loyalty to an existing client isfundamental and is without compromise.

One cannot have a divided loyalty causing one to soft-pedal a defence out of concern foranother client or to otherwise act contrary to that loyalty. Zealous representation has also been described as the ambit of the duty ofcommitment. [4] Second, the duty of loyalty is further particularised as follows: the duty to avoid conflicting interests; a duty of commitment tothe client's cause and the duty of candour. [5] The third element relates to law firms' professional obligations. The principles governing acting against a former client asopposed to current clients are relevant.

The question to be determined in this category is whether a solicitor-client relationship exists. What is the nature of the professional relationship? Was it a general retainer, did it predate the matter at hand, and did it continue at therelevant times? [6] The concern is the prospect of confidential information being abused in the context of law firms. These words deserverepeating at paragraph 29 of the Neil case, supra: ...it is the firm not just the individual lawyer, that owes a fiduciary duty to its clients, and a bright line is required.

The bright line isprovided by the general rule that a lawyer may not represent one client whose interests are directly adverse to the immediate interests ofanother current client -- even if the two mandates are unrelated -- unless both clients consent after receiving full disclosure (andpreferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adverselyaffecting the other. [7] In a similar manner, the recent decision of R. v.

Cocks 2012 BCSC 1336 spoke about the duty within the context of law firmsat page 4, paragraph 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. [8] In determining the threshold of whether a conflict exists, the court in Neil, supra, at paragraph 31 adopted this statement fromRestatement Third, The Law Governing Lawyers (2000), vol. 2, at pp. 244-45: ...as a 'substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s owninterests or by the lawyer’s duties to another current client, a former client, or a third person'. [9] Neil also referred to R. v.

Graff (1993) 1993 ABCA 57 , 80 CCC 3rd 84 in defining the test. Graff was a post-conviction situation. At paragraph 39 this was said: ...he or she must show more than a possibility of conflict of interest; while actual prejudice need not be shown, the appellant mustdemonstrate the conflict of interest and that the conflict adversely affected the lawyer’s performance on behalf of the appellant...It is notnecessary for the accused to demonstrate actual prejudice.... [10] The test was further stated in R. v.

Cocks, supra, at page 5, paragraph 14 in this manner: The standard to be met is 'the possibility of real mischief', that is from MacDonald Estate, sometimes referred to as 'the substantial risktest', from R. v. Neil. A realistic risk of a conflict of interest requires that the evidence be more than theoretical or strictly speculative. [11] From an older decision of the BCCA called R. v. Bullis 1990 counsel in that instance had represented three co-accused.

Todetermine whether there was a conflict of loyalties the test was assessed on the basis of a realistic or sufficient possibility. [12] Whether one can waive conflict is a fact-dependent question. From R. v. Neil at paragraph 14 the court reflected on the case ofR. v. Parsons (NL CA), 1992 100 Nfld and PEIR 260 where an accused had murdered his mother. An applicationwas made to remove defence counsel where he might be privy to confidential information due to his prior representations of the father ofthe accused in an unrelated matrimonial matter.

There was a question that he might be cross-examined at his son's murder trial. Thepotential issue was resolved through independent legal advice after disclosure of the facts and waiver of any conflict. The father alsowaived solicitor-client privilege. The court further concluded there was no issue of confidential information. However, in R. v. Cocks,supra, waiver was not sufficient. In that instance there were multiple co-accused with two being represented by two lawyers of the samefirm with a stated objective of a collaborative defence.

The court allowed an order to disqualify them from acting given the prospects ofconflict. The waiver in that instance was not sufficient to save them from their choice of counsel. Protecting the integrity and fairness ofthe administration of justice took prominence.

[13] Counsel has also referred to other decisions which has refined some of the considerations, depending on their facts. R. v.Brissett (ON SC), 2005 74 OR (3d) 248 discusses the situation where the chief Crown witness had, one year prior,been represented by defence counsel who was now acting with another counsel from the same law firm for another person charged withmurder. The defence strategy was to attack this former client's credibility. This witness declined to waive his solicitor-client privilege. The court made reference to Macdonald Estate v.

Martin (SCC), 1990 3SCR 1235 at 1260 to 1 and discussed inferencesmight be made that confidential information was exchanged in such circumstances. At paragraph 31 this was stated: In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer fromwhich it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfiesthe court that no information was imparted which could be relevant. This will be a difficult burden to discharge.

Not only must thecourt's degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no suchinformation passed, but the burden must be discharged without revealing the specifics of the privileged communication. [14] In another case called R. v. A.(G.D.) (2000) 2000 ABQB 694 , ABQ 94 283 AR 94 the court declared a mistrial wherethere was non-disclosure of a prior statement where the complainant had recounted on allegations of sexual touching.

This wasprejudicial to the accused's right to a fair trial as it may have impugned the credibility of the complainant. [15] With these principles in mind, the question to be answered is whether the conduct of the defence amounts to a conflict thatimpaired the case to such an extent that a miscarriage of justice has occurred requiring a mistrial. THE FACTS: [16] My reasons for conviction have already been rendered. I do not intend to review them other than to state it was a case involvingcredibility.

In support of the mistrial application are two affidavits, one filed by Lisa Olson, the sister of the defendant, and the other byShannon Corrins, legal assistant to new counsel. [17] From Lisa Olson's affidavit the following points are noted: She had spoken many times to the complainant, Bridget Moonie,about her relationship with the defendant. She describes having an active role discussing the allegations with former defence counselDutt, and had given evidence for the defence at the trial.

From her discussions with Dutt and Bridget Moonie, the complainant hadspoken to Dutt several times prior to the commencement of the trial. Paragraph 4 states this: It is my belief and understanding that Bridget contacted and spoke to Mr. Dutt about the circumstances of the applicant's bail hearing aswell as the trial proceedings related to Information number 75590-KC3. [18] From paragraph 5 of these words were set out in her affidavit: That I am advised and verily believe to be true that Bridget told Mr.

Dutt that she would do whatever she needed to do to assist theapplicant, including writing letters and speaking to the prosecutor to advise that she did not want to proceed with the trial of the chargesunder Information number 75590-KC3. She further told Mr. Dutt that she would not appear at the applicant's trial. [19] Shannon Corrins' affidavit contains these material points. Dutt is an associate and employee to Howard Smith and Company. The father of the complainant is named Brian Moonie, who has been a long-time client to Smith. He last represented him on legalmatters approximately three years ago.

From the affidavit it states that Smith had also represented the defendant on an impaired charge. From the record of proceedings which is attached as exhibit 2 to Corrins' affidavit it appears that counsel changed on the impaired chargeon about October 22nd, 2012 to counsel on this application. [20] From paragraph 9 it states these particulars: That I am advised and verily believe to be true that the complainant, Bridget Moonie, had sought advice from Howard Smith in relationto legal matters involving the defendant.

The defendant had previously been released on $2000 cash bail with respect to the chargesbefore the court but due to a breach of his recognizance he was detained on December 21st, 2011. On May 28, 2012 the cash depositwas assigned and released to Howard Smith and Associates from prior criminal assault allegation against the defendant. Bridget Moonierecanted her evidence, stating in a letter that complaint was false.

This recantation had previously been disclosed to Dutt. [21] At paragraph 18 it states: That I am advised and verily believe to be true that Howard Smith provided guidance to Paul Dutt in connection with the conduct of theapplicant's defence with respect to the proceedings under Information number 75590-KC3. [22] Of note, former defence counsel has not made any representations to the court on this application. Furthermore, there wasnothing before the court which speaks of any waiver of solicitor-client privilege.

In the course of submissions defence counsel advisesthat the bail money was deposited by the defendant's mother. Another aspect presented was the defendant was on Legal Aid for theoffences before the court. With respect to a prior assault offence and recantation by the victim as referenced to in Shannon Corrins'affidavit, this resulted in the stay of proceedings. Dutt had disclosure of these particulars. The victim was not challenged in cross-examination on the recantation.

Furthermore, from the victim's statement there appears to be contradictions about her knowledge of amarihuana grow operation found at the site, which she denied. This conflict also was not cross-examined. ANALYSIS AND CONCLUSIONS: [23] Firstly, I agree with both counsel that as Dutt and the law firm of Howard Smith and Associates have retainers from clients fromwhom there are common interests then a conflict is raised. It is, however, rebuttable. [24] The second part of this analysis is whether there is any substantial realistic possibility of conflict upon the facts presented.

While the affidavit states Brian Moonie is a long-time client, the duration or the character of that relationship is absent. One might

presume it was criminal as the law firm advertises itself in that particular area of practice as seen in the exhibit 1 to Corrins' affidavit, but that does not necessarily confirm the particular type of legal services he received. Furthermore, while he may have engaged the firm in the past it seems to be sporadic and possibly episodic as evidenced by a rather significant span of three years since he last sought Smith's assistance. There is certainly an absence of any current retainer with this law firm. [ 25 ] The affidavit speaks of Smith providing legal guidance and supervision to Dutt.

While it is likely true that consultations might have occurred as this appears to be a specialized firm practising criminal law, the specifics of that consultation are unknown. Can it be said that their discussions were of a nature that brings to the forefront the possibility of a conflict from relevant confidential information being shared? As stated in R. v.

Graff , supra , actual conflict does not have to be established but there must be something more than a possibility of conflict of interest and there must be such as to demonstrate that the conflict adversely affected the lawyer's performance on behalf of the appellant. [ 26 ] In my assessment, the best that the evidence before the court demonstrates is a past solicitor-client relationship which Smith had with Brian Moonie that is unrelated to the offences at hand.

Any ongoing trial supervision would not raise any potential breaches of confidential information beyond a possibility. [ 27 ] Focusing next on the $2000 cash bail that had been assigned and later released to Smith and Associates, counsel says this is evidence of a private economic relationship. It does appear that this, indeed, is true. However, to what purpose this money was applied is a mystery. Was it applied to past fees due on the defendant's other ongoing charge of impaired driving? Was it a payment as a future retainer for that offence or some other matter, including the offence at bar?

The defence's view is that once the money is transferred to the law firm of Smith and Associates it becomes imbued with the potential of conflict. I am not of the opinion that one can take the analysis in such a direction.

There is a lack of nexus of this money to the question of whether there is a substantial risk that Dutt's representation of the defendant would be adversely affected by his own interests or by the firm's duties to a former client. [ 28 ] In the course of submissions and review of the trial evidence counsel points to various aspects of the case which he says establishes Dutt had deliberately avoided asking certain questions of the victim.

He says that this was due to the conflict that the firm had with the victim's father, that his hands were tied due to an economic relationship between the defendant and the law firm to the victim's father, Brian Moonie. It was submitted that any cross-examination of the victim would potentially cause upset to her father, a client of the firm. Effective cross-examination was thus impaired by the firm's relationship with Brian Moonie. [ 29 ] In that review counsel took note that the complainant was not subjected to an in-depth probing cross-examination.

His position was Dutt should have challenged her more thoroughly about her potential animus towards another woman, whether drugs or alcohol impaired her ability to recall evidence, reviewed carefully the nature and substance of the assaults, cross-examined her about his threatening behaviour and reviewed the evidence about the weapon and its use. There were two particular areas that he thought should have been subjected to detailed cross-examination: her recantation of prior assault allegation and a statement acknowledging the presence of a marihuana grow operation.

Furthermore, hidden in the background is the suggestion of possible intervention by the Ministry of Children and Family Services if they knew about the marihuana grow-op environment and resultant possible health concerns for the infant child. [ 30 ] The Crown says the lack of in-depth cross-examination of the various issues raised is a matter of trial tactics.

Contrary to this the defence stated there seems to be little tactical advantage by withholding cross-examination as the case revolved around credibility, rather, it is Dutt's failure to zealously defend given the law firm's conflict. [ 31 ] As I consider the submissions it is tempting to ask oneself why did Dutt not put what appears to be obvious questions to the complainant challenging her credibility. On the other hand, post-trial analysis as to why a witness may or may not be asked certain questions is second guessing and highly speculative.

While Dutt pursued a particular line of questioning which is contrary to that of new counsel, there might well be a multitude of tactical reasons why it occurred in the manner that it did. [ 32 ] I find the proposition that Dutt soft-pedalled the defence due to a possible conflict through concerns of creating discord with the law firm's other client, Brian Moonie, if he harshly attacked his daughter's credibility, is not supported by the facts presented. [ 33 ] The authorities speak about the importance of ensuring confidences are closely guarded.

As to when it crosses beyond a possibility of conflict depends on the circumstances. In this instance the existence of Brian Moonie's retainer with the firm is historical and unrelated to the case at bar. There is nothing to indicate that confidential information was imparted. There is only the possibility of hurt feelings and a possible risk of alienation of a past client. [ 34 ] Upon the totality of the evidence presented I do not find the circumstances establish that a substantial or realistic possibility of conflict had occurred that divided loyalty of Dutt's ability to defend the accused.

The application is dismissed.