R. v. Clarke, 2012 NSSC 243

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Clarke, 2012 NSSC 243 Date: 20120607 Docket: CRH 346068 Registry: Halifax Between: Her Majesty the Queen Applicant v. Bruce Elliott Clarke, Robert Blois Colpitts and Daniel Frederick Potter Respondents LIBRARY HEADING Judge : The Honourable Justice Suzanne M. Hood Heard: June 7, 2012, in Halifax, Nova Scotia Written Decision: June 28, 2012 (Written release of oral decision) Subject: Intervenor Status

Summary: Crown claims counsel for one accused has conflict of interest or potential conflict of interest and should be removed as counsel. Issue: Should that counsel and firm and another firm and lawyer be granted intervenor status in the conflict of interest application? Result: Intervenor status granted. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET .

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Clarke, 2012 NSSC 243 Date: 20120607 Docket: CRH 346068 Registry: Halifax Between: Her Majesty the Queen Applicant v. Bruce Elliott Clarke, Robert Blois Colpitts and Daniel Frederick Potter Respondents Judge: The Honourable Justice Suzanne M. Hood Heard: June 7, 2012, in Halifax, Nova Scotia Written Decision: June 28, 2012 (Written release of oral decision) Counsel: Mark Covan and James Martin, for Her Majesty the Queen James D. G. Douglas, for the Proposed Intervenors, Borden Ladner Gervais and Tyler Hodgson Daniel Frederick Potter, self-represented William L. Mahody, for the Proposed Intervenors, Norton Rose and James Hodgson By the Court:

[ 1 ] The Crown on February 17 th of this year gave a notice of motion to “ remove counsel for a conflict of interest ” . It alleged there is a “ realistic risk ” of infringement of the accuseds ’ fair trial rights because of “ conflict of interest or potential of conflict of interest ” . [ 2 ] It alleged a conflict or potential conflict which arises because James Hodgson represents National Bank Financial Limited, a party adverse in interest to the three accused in this matter.

Because of that, the Crown alleges that “ respect for the integrity of the criminal justice system ” requires that Borden Ladner and Tyler Hodgson be prohibited from acting. [ 3 ] Among the “ adverse interests ” cited, the Crown says in para. 38.3 of its brief on the conflict application “ On its face, it appears that both James Hodgson and Tyler Hodgson have been in breach of the Nova Scotia Handbook,

Chapter 7". On p. 1 of its brief on that application, the Crown does say “ The Crown has no evidence that there has been a breach of confidentiality in this case; but here there is an apparent breach of the Nova Scotia ethics handbook... ” [ 4 ] The Crown alleges that a potential conflict of interest could interfere with the fair trial rights of the three accused in this case and the administration of justice. Counsel for Mr.

Colpitts on the conflict of interest application, Craig Garson, has not appeared on this application but had written to the Court to say that he supports the applications for intervenor status. Counsel for Mr. Clarke, Mark Knox, has written to say his client takes no position. Mr. Potter is present and has written to say that he says it would be unfair if Borden Ladner and Tyler Hodgson were not granted intervenor status. He questions why Norton Rose and James Hodgson would be granted such status.

The three accused persons have not said they have concerns about their fair trial rights or any prejudice to them from having these firms intervene in the conflict of interest application. [ 5 ] It is true that intervenor status is not normally granted in criminal proceedings. In courts of appeals, it does occur. It is granted where there is an allegation on appeal of ineffective assistance of counsel. Often the Crown consents.

In other cases, organizations like the Canadian Civil Liberties Association have been granted intervenor status on appeals. [ 6 ] No superior court decisions have been cited granting intervenor status except pursuant to the Extradition Act where intervenor status was granted to the Republic of China in the case involving the Maersk Dubai. [ 7 ] The Crown says that this Court has no authority to grant intervenor status. It says this is so because Civil Procedure Rule 35.10 has not been made a rule of criminal proceedings in the manner authorized by s. 482 of the Criminal Code .

It is true that Rule 35.10 has not been made a rule pursuant to s. 482 . [ 8 ] The Crown also says that s. 482 ousts the Courts ’ inherent jurisdiction. It says s. 482 requires that rules affecting criminal proceedings must be published and that has not been done. It says inherent jurisdiction cannot overrule unambigious legislation which it says s. 482 is.

Section 482 provides in s-s. 1: 482.

(1) Every superior court of criminal jurisdiction and every court of appeal may make rules of court not inconsistent with this or any other Act of Parliament, and any rules so made apply to any prosecution, proceeding, action or appeal, as the case may be, within the jurisdiction of that court, instituted in relation to any matter of a criminal nature or arising from or incidental to any such prosecution, proceeding, action or appeal. In my view, that is a permissive power. If it is used, then those rules must be published. [ 9 ] There is good reason for that as Mr. Covan has pointed out.

Everyone needs to know what those rules are. There is a need for certainty. [ 10 ] However, in my view, rules are something quite different from the court ’ s inherent jurisdiction to control its own process. The fact that there is no rule for intervenor status in a trial level criminal proceeding does not mean that the court cannot exercise its inherent jurisdiction to allow intervenor status to be granted in a case where it is warranted. Judging by the cases cited, such applications are rare. If it were otherwise, there would be a need for a rule such as the one Court of Appeal has.

But I do note that even the Court of Appeal, with its own rule, has referred to Rule 35.10 in some of its decisions.

[11] In Halifax Regional Municipality v. Ofume, 2003 NSCA 110, the Court of Appeal considered the inherent jurisdiction of theNova Scotia Supreme Court. In Ofume, the chambers judge had permitted the plaintiff’s husband, a non-lawyer, to represent her. HRMappealed, citing the previous Barristers and Solicitors Act (R.S.N.S. 1989, c. 30) and the previous Civil Procedure Rule 9.08(1) (1972Rules). [12] Beginning at para. 22, Justice Saunders dealt with the court’s inherent jurisdiction. In that paragraph, he quoted from MontrealTrust Co. v.

Churchill Forest Industries (Manitoba) Ltd. (1972), (MB CA), 21 D.L.R. (3d) 75, where Freedman,C.J.M. said: . . . ... Inherent jurisdiction is derived not from any statute or rule but from the very nature of the Court as a superior Court of law: “Thejurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law” (p. 27). Inherentjurisdiction cannot, of course, be exercised so as to conflict with a statute or rule.

Moreover, because it is a special and extraordinarypower, it should be exercised only sparingly and in a clear case. [13] The Chief Justice continued, quoting from “The Inherent Jurisdiction of the Court” by I. H.

Jacob, Current Legal Problems,1970, pp. 23-52, at p. 51: In this light, the inherent jurisdiction of the court may be defined as being the reserve or fund of powers, a residual source of powers,which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of thedue process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them. [14] Freedman, C.J.M. also quoted from Connelly v.

Director of Public Prosecutions, [1964] 2 All E.R. 401 at 409: There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to acteffectively within such jurisdiction. I would regard them as powers which are inherent it its jurisdiction. [15] Justice Saunders in para. 23 quoted from Goodwin v. Rodgerson (2002), 2002 NSCA 137 , 210 N.S.R. (2d) 42, at p.48: The inherent jurisdiction of the court has been described as a vague concept and one difficult to pin down.

It is a doctrine which hasreceived little by way of analysis, but there is no question it is a power which a superior trial court enjoys to be used where it is just andequitable to do so. It is a procedural concept and courts must be cautious in exercising the power which should not to be used to effectchanges in substantive law. [16] The power is limited, as Justice Saunders pointed out in para. 25 where he cited Baxter Housing Ltd. v. College Housing Co-operative Ltd., (SCC), [1976] 2 S.C.R. 475.

In that case, a superior court judge had appointed a receiver on termscontrary to the very specific terms set out in the Manitoba Mechanics’ Lien Act, R.S.M. 1970, c. M80, s. 11(1). Justice Dickson said inthat case: In my opinion the inherent jurisdiction of the Court of Queen’s Bench is not such as to empower a judge of that Court to make an offernegating the unambiguous expression of legislative will.

The effect of the order made in this case was to alter the statutory prioritieswhich a court simply cannot do. [17] Justice Saunders then said in para. 26: [26]This and similar jurisprudence in this country clearly establishes that Canadian courts of superior jurisdiction maintain a generalinherent jurisdiction, which includes the discretion to control their own process. ...

[18] He concluded in para. 31: [31]... It is my considered opinion that the Nova Scotia Supreme Court possesses an inherent jurisdiction, which includes the discretionto control its own process ... [19] I conclude that this court has the inherent jurisdiction to grant intervenor status in a case such as this as part of its powers tocontrol its own process.

It is not, in my view, inconsistent with s. 482 of the Criminal Code, which, as I have said, is a permissivegeneral power to enact rules. [20] The question in this case is whether I should use that inherent jurisdiction to grant intervenor status. [21] In deciding if I should exercise my discretion to grant intervenor status, I look to Civil Procedure Rule 35.10 for guidance andto decisions of the Nova Scotia Court of Appeal. [22] The context of the application for which intervenor status is sought is a significant factor for me in this case. [23] It is true the criminal proceeding is a matter between the state and three accused persons in this case.

That is the overallcriminal proceeding. However, in August, I will deal with an application within that criminal proceeding. It is clear that the proposedintervenors seek only to intervene in the Crown’s conflict of interest application. They do not seek to intervene on the merits of thecriminal case against the three accused persons.

They intend to take no position in that application that interferes with the Crown’s rolein trying the three accused persons. [24] They wish only to participate to respond to the Crown’s allegation that there is a real or potential conflict of interest. [25] In 1992, before provision was made with respect to third party records, Justice Chipman had to decide in R. v. Ross, (NS CA), [1992] N.S.J.

No. 405 (N.S.C.A.), whether the subject of the third party records application should be grantedintervenor status. [26] Justice Chipman referred to cases where interest groups had sought intervenor status but said he was not aware of any where avictim had sought it. In that case, she wanted only to intervene on a limited basis, on the motion for production of third party records ofher psychiatrist. [27] Justice Chipman said in that case: The reluctance of courts to grant intervention in criminal proceedings arises from a concern with the fairness of those proceedings.

Thisconcern dictates, in particular, an examination of the usefulness of the intervention, the prejudice to the accused and the delay in theproceedings likely to result. [28] He continued: In this case, the applicant’s interest in the appellant’s motion is of a personal and unique character. It relates to her privacy interests. Noother person or organization has the same interest in the subject matter of the motion as does she. Fairness and justice dictate that she beat least given the opportunity to be heard by the court before it decides that the contents of her personal file become evidence.

[ 29 ] Both proposed intervenors say they will cause no delay. They will meet the deadlines with respect to the August 20 th application. They say their intervention will cause no prejudice to any party. I agree that that is the case. [ 30 ] In my view, they have an interest different from that of the Crown or of Blois Colpitts. The Crown wants to ensure there is a fair trial and to uphold the integrity of the criminal justice system. [ 31 ] Mr. Colpitts would want to be able to continue to have his counsel of choice. [ 32 ] However, the intervenors have a different interest.

The result of the application could be a finding that they have breached the provisions of the Nova Scotia Ethics Handbook. They wish to respond to these allegations. It would be too late for them to respond if findings are made against them. Regulatory bodies might take action on such findings and they would have had no opportunity to explain them or respond to the court. [ 33 ] It should go without saying that a lawyer ’ s reputation is important. This was recognized in R. v. West , 2009 NSCA 63 , where Justice Saunders granted a lawyer intervenor status in a criminal appeal.

He referred to the necessity of having him be an intervenor so that the issue of the ineffective assistance of counsel could be properly put before the court. But he also said in para. 31: [31]It seems obvious to me that Mr. Jeffcock has a direct interest in these proceedings with respect to the ground of appeal alleging incompetence. A finding of incompetence would have an impact on him personally, and might give rise to civil or regulatory proceedings. Mr. Jeffcock’s conduct and professional competence as a lawyer are under attack by Mr. West.

In my view he would be denied an effective way of answering those charges (which may ultimately have a significant bearing on the outcome of the appeal) without being added as an intervenor. [ 34 ] In my view, these same considerations are applicable here. [ 35 ] Because these are personal interests, it does not mean these lawyers should not have an opportunity to respond to allegations that they have already breached the conflict of interest rules or that a potential conflict may materialize later. [ 36 ] There may well be an adverse effect on the reputations of these lawyers if findings are made against them.

They should not be deprived of an opportunity to defend their reputations. [ 37 ] Borden Ladner Gervais and Tyler Hodgson will be bound by the court ’ s decision on the Crown application whether they intervene or not. [ 38 ] However, I do not see the role of either intervenor in the application as furthering the public interest. In my view, that is a criterion more suited to a situation where an interest group seeks intervenor status. [ 39 ] It may well be helpful to the court in deciding the Crown application to have the input of those most closely involved.

Factual matters may be put forward by counsel for Blois Colpitts but his perspective on those issues will differ from that of the proposed intervenors. [ 40 ] It is in the interests of justice that the matter be fully canvassed with the participation of those whose conduct has been called into question.

[ 41 ] In my view, instances where intervenor status will be granted will be few and for a limited purpose only. [ 42 ] I, therefore, conclude that it would not be fair or just to either to be denied intervenor status for the August conflict of interest hearing. [ 43 ] Accordingly, both Borden Ladner Gervais and Tyler Hodgson and Norton Rose and James Hodgson are granted intervenor status. [ 44 ] I propose that there should be some restrictions on that intervenor status to ensure there is no, or as little, duplication as possible.

As I have said I do not really consider this to be a matter where these intervenors would deal with subjects of public interest or public policy. I would require that it not be a broad perspective that they put on the application to be heard in August. [ 45 ] Written submissions shall be limited to the conflict of interest issue as raised by the Crown, limited to 25 pages. The deadlines have been set for filings. Mr. Douglas ’ and Mr. Garson ’ s brief shall be filed on August 10, 2012, Mr. Mahody ’ s and the Crown ’ s brief shall be filed on August 14, 2012, and Mr.

Potter ’ s brief and any reply by the Crown shall be filed on August 17, 2012. Hood, J.