R v Yates, 2023 SKCA 47

Court of Appeal for Saskatchewan Docket: CACR3487 Citation: R v Yates , 2023 SKCA 47 Date: 2023-04-17 Between: Austin Thomas Yates Appellant And His Majesty the King Respondent Before: Schwann, Kalmakoff and McCreary JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Kalmakoff The Honourable Madam Justice McCreary On appeal from: 2019 SKPC 41 and CRM 463 of 2019 (Sask QB), Regina Appeal heard: June 16, 2022 Counsel: Thomas Hynes for the Appellant Grace Hession David for the Respondent Schwann J.A. I. INTRODUCTION [ 1 ] Austin Yates was convicted of manslaughter contrary to s. 236 (

b) of the Criminal Code for the unlawful killing of Miguel Lane. His conviction followed a judge-alone trial in the Court of Queen’s Bench. Mr. Yates was sentenced to 12 years of imprisonment less an enhanced, pre-sentence credit of 638 days. [ 2 ] Mr. Yates and his co-accused, Kayle George, were initially charged with the second degree murder of Mr. Lane. Prior to the preliminary inquiry, Mr. Yates tendered a guilty plea to the lesser included offence of manslaughter on the understanding that sentencing would proceed by way of joint submission a few days later.

Sentencing submissions did not, however, continue as planned because Mr. Yates instructed his counsel to resile from the joint submission and proceed by way of a contested sentencing hearing. The Provincial Court judge [PCJ] who presided over the matter determined that, in resiling from the joint submission, Mr. Yates’s then legal counsel [Counsel] had committed a breach of ethics and would be in a potential conflict of interest if she acted for him at trial. Based on those findings, the PCJ directed that Counsel be disqualified from acting for Mr.

Yates: R v Yates , 2019 SKPC 41 , [2019] 12 WWR 287 [ Counsel Decision ]. [ 3 ] The trial in this matter took place two years after the Counsel Decision was rendered. That decision was not challenged by Mr. Yates prior to or at the time of trial and is raised for the first time in this appeal. Mr. Yates asserts that the Counsel Decision deprived him of counsel of choice and that, in consequence, his trial was unfair. He further submits that his s. 10(

b) Charter rights were violated and has filed a notice of constitutional question in relation to the alleged breach. In the alternative, Mr. Yates argues that the trial judge erred by incorrectly interpreting the party liability provisions contained in s. 21(2) of the Criminal Code by applying the wrong legal test to the knowledge component of that provision. [ 4 ] Fundamentally, Mr.

Yates’s appeal raises the important question of the appropriate standard or test to be applied when a judge contemplates the disqualification of counsel of choice prior to trial in circumstances where an accused has tendered a guilty plea but later backs away from an agreement as to sentence. The assessment of that question involves competing administration of justice interests. On the one hand is the long-standing principle that a litigant is entitled to counsel of choice and has the right not to be deprived of their chosen counsel, absent a compelling reason.

On the other hand is the integrity of our criminal justice system. [ 5 ] Mr. Yates initially appealed from both conviction and sentence but subsequently abandoned his sentence appeal. I conclude that Mr. Yates’s conviction appeal must be dismissed. My reasons follow. II. PROCEEDINGS BEFORE THE PCJ [ 6 ] Mr. Yates and Mr. George were jointly charged with the second degree murder of Mr. Lane by unlawfully causing his death on October 23, 2018. Mr. Yates retained Counsel to act for him. The co-accused, Mr.

George, retained Maria Pappas, K.C. [ 7 ] Following multiple attendances in Provincial Court, a preliminary inquiry was eventually scheduled to take place in the last week of May of 2019. At the commencement of proceedings on May 27, 2019, Crown counsel informed the PCJ that the preliminary inquiry would not proceed as planned because the parties had reached a resolution. Given that development, Crown counsel presented a new information that jointly charged Mr. Yates and Mr. George with committing manslaughter by causing the death of Mr. Lane. On behalf of their respective clients, Counsel and Ms.

Pappas each waived formal reading of the election with respect to the new information and each confirmed that their clients elected to be tried by a Provincial Court judge. Ms. Pappas then tendered a guilty plea on behalf of Mr. George and Counsel did likewise for Mr. Yates. Those steps completed, Crown counsel then withdrew the second degree murder charge against both accused. No plea comprehension inquiry was undertaken at that time nor were any facts surrounding the offence

presented to the PCJ. [ 8 ] Crown counsel informed the PCJ that the Crown and defence would be presenting a joint submission on sentence and asked to have the matter set over to May 30, 2019, to allow them time to prepare an agreed statement of facts, file victim impact statements and make sentencing submissions. [ 9 ] When court resumed on May 30, 2019, Counsel began her submissions by requesting a common law publication ban because she had been instructed by Mr. Yates to resile from the joint submission. The purpose of the publication ban was to avoid any prejudice to Mr.

Yates if he later chose to be tried by judge and jury. Counsel explained the rationale for her request in this way: I can advise your -- with that publication ban in place then, Your Honour, temporarily, I can advise the Court that I received updated instructions from my client. The arrangement -- plea arrangement was on the basis that the Crown would accept a plea to a lesser included offence or a lesser charge of manslaughter on the basis that a certain joint submission would be made.

I received updated instructions advising me that I -- my client was no longer in agreement with proceeding on the joint submission basis. I can advise the Court I communicated those instructions in writing to my friend yesterday afternoon. As a result, there are two options going forward, and I will let my friend speak to how he wishes to proceed. [ 10 ] Following her explanation, Counsel clarified her client’s position. She said Mr. Yates was not applying to expunge his guilty plea and was prepared to proceed with a contested sentencing hearing based on his plea to the manslaughter charge.

She confirmed that the change in her instructions was limited to resiling from the joint submission only. It was her position that how things unfolded from there was up to the Crown, including whether it (the Crown) would apply to have Mr. Yates’s guilty plea expunged and the second degree murder charge renewed. [ 11 ] Given Mr. Yates’s change in position, Crown counsel expressed surprise with this development and Counsel’s continued involvement in the proceedings. He asked for time to consider how the Crown would proceed.

The matter was adjourned to June 7, 2019, for written submissions from the parties in relation to this development. [ 12 ] Prior to the June 7, 2019, appearance, Counsel sent a letter to the Court in which she reiterated her client’s position, i.e., that Mr. Yates was prepared to proceed with a contested sentencing hearing but that the decision as to how the charges should be handled, given the change in circumstance, was up to the Crown. Counsel acknowledged that the Crown’s consent to proceeding with the lesser included offence of manslaughter was contingent on there being a joint submission as to sentence.

She asked for leave to have legal counsel address the court on her behalf when the matter resumed for submissions about her continued involvement. [ 13 ] When the matter returned to Provincial Court on June 7, 2019, the Crown directed a stay of proceedings on the manslaughter charge and laid a new information that charged both Mr. Yates and Mr. George with second degree murder. Ms. Pappas informed the Court that she could no longer act for Mr. George if the matter proceeded to a preliminary inquiry or a trial because, in her view, she would be conflicted if she had to cross-examine certain witnesses at trial.

Turning to Counsel, the PCJ suggested that she, too, should disqualify herself from continuing to act for Mr. Yates and from making any submissions that were contrary to the joint plea and sentence agreement. He intimated that her conduct was unethical and queried whether he should (of his own motion) direct that she be discharged as counsel of record for Mr. Yates. [ 14 ] When Provincial Court reconvened on July 4, 2019, Counsel informed the PCJ that, for her to be able to address the Court’s concerns respecting her ethics, Mr. Yates would have to waive solicitor–client privilege, but he had declined to do so.

As such, Counsel said she was unable to speak directly to that matter. She then questioned the Court’s jurisdiction to rule on an ethical issue, which, in her view, fell within the exclusive purview of the Law Society of Saskatchewan. Part of her submission on this issue is reproduced below: [COUNSEL]: Essentially, Your Honour, in order for me to answer to the Court’s concerns that were raised, my client would need to waive solicitor–client privilege. He is not in a position to do that. And so this is, in my respectful submission, Your Honour, not the appropriate forum to discuss my ethics.

If the Court wishes to embark on an inquiry into my ethics, I would invite the Court to make a complaint to the Law Society, who has jurisdiction over The Legal Professions Act . The Legal Professions Act governs lawyers and their ethics. As part of the legal ethics umbrella that the Law Society governs, there is a forum and a process that affords not only myself natural justice, but also affords procedural protections to my client.

They retain his solicitor–client privilege and ensure that there is a proper investigation into this matter and a decision is made by those who have authority and jurisdiction over the governance of legal counsel. In my respectful submissions, Your Honour, this Court does not have the jurisdiction or the ability to inquire into the ethics of lawyers. I did conduct some legal research into this area.

While I can appreciate that the Court of Queen’s Bench is a court of inherent jurisdiction and these matters do come before the Court of Queen’s Bench, quite often after they have gone through the Law Society process, I was not able to find a case where this Court, that this jurisdiction -- or at this level had jurisdiction over this matter. And so, I would invite the Court, if you are concerned about my ethics, to make a complaint to the Law Society. In fact, I would welcome it.

I am confident that my ethics are beyond reproach and I would be prepared to fully respond and cooperate with any investigation the Law Society might take into this matter. I would also note that the conduct that the Court is concerned of occurred on informations that the Crown has subsequently stayed and as such there is no process before this Court with respect to the matters wherein the conduct was alleged to have occurred, if any.

And so I would submit on two fronts, both the jurisdiction over legal ethics and the -- The Legal Professions Act , as well as the manner in which this or the timing or the information in which this alleged conduct occurred, that this Court does not have jurisdiction to continue the investigation into this matter. And those would be my submissions. [ 15 ] The Crown made no submissions. At no time did the Crown apply for an order to have Counsel disqualified from acting for

Mr. Yates. III. THE COUNSEL DECISION [ 16 ] The PCJ issued a written decision on July 18, 2019 (i.e., the Counsel Decision ). In terms of the bottom-line result, the PCJ directed Counsel to withdraw as counsel of record for Mr. Yates and ordered him to retain new counsel from a law firm that was independent from that of his former counsel.

His order was grounded on a finding of unethical behavior and a conflict of interest on the part of Counsel. [ 17 ] While the PCJ acknowledged that the Provincial Court does not have jurisdiction to discipline members of the Law Society for unethical conduct, per se, he was nonetheless satisfied that courts are entitled to “sanction counsel or make orders dismissing them from criminal proceedings, as part of their control of the criminal law process” ( Counsel Decision at para 17).

Relying on R v Cunningham , 2010 SCC 10 , [2010] 1 SCR 331, he concluded that the Provincial Court is vested with jurisdiction to prevent counsel “from acting on the matter … where there would be continuing breach of ethics” and from “continuing to act if by doing so there was a reasonable likelihood counsel would face a conflict of interest” ( Counsel Decision at para 18).

He saw it as his duty to remove Counsel to ensure trial fairness and to maintain public confidence in the administration of justice. [ 18 ] The PCJ then instructed himself on the various provisions contained in the Law Society of Saskatchewan’s Code of Professional Conduct , notably s. 5.1-6 and s. 7.2-11, which pertain to undertakings and agreements.

Based on the wording of those provisions, the PCJ reasoned that, in criminal proceedings, lawyers are obliged to comply with and fulfill all agreements and undertakings they give and that it is unethical for a lawyer to act in a contrary manner: “Lawyers are professionally obligated by the canon of ethics to strictly comply and fulfill all agreements and undertakings.

Acting contrary to an agreement and undertaking is unethical” ( Counsel Decision at para 24). [ 19 ] The PCJ concluded on the ethics point by stating as follows: [38] In summation, in Anthony-Cook [2016 SCC 43], the Court imposed a high standard on the Court before departing from a joint submission. It should only do so in rare and exceptional circumstances. In cases such as Nixon [2011 SCC 34], the Court has said the Crown can be sanctioned under the doctrine of abuse of process for breaching a joint submission.

The Court has also said that both counsel must both act professionally and ethically. [39] It seems to me that defence counsel must be held to a similarly high standard as are the Crown and the Court. Defence counsel cannot simply disregard its agreement because the client has changed his mind and so instructed . In my view, a reasonable and informed person would not think it fair or appropriate that the Crown and the Court were obligated to follow an agreement, but defence counsel could depart from that same agreement at their choosing and without consequence.

Moreover, the “high degree of certainty of result” and the utility of plea bargain agreements will be seriously undermined if the Crown and the Court cannot rely upon the word and agreement reached by defence counsel. [40] In the present case, I have been presented with no reason or argument as to why counsel should be able to back away from her agreement, other than her client has so instructed. She has argued there is no ethical problem with her following her client’s instructions. I disagree. Agreements and undertakings between counsel are very serious, and cannot be easily disregarded.

In my view, by casually disregarding the agreement reached, [Counsel] has acted contrary to the Code of Professional Conduct . Joint submissions have become an accepted and much utilized process of the Court. She has improperly undermined that process. (Emphasis added) [ 20 ] The second concern identified by the PCJ pertained to Counsel’s potential conflict of interest if she continued to act for Mr. Yates at trial. Here, he reasoned that because Counsel had accepted Mr.

Yates’s instruction to plead guilty to manslaughter, she would be in violation of the ethical provisions of the Code of Professional Conduct if she were to represent him at trial on the second degree murder charge. He expressed concern with Counsel’s ability to advance a defence of complete innocence on behalf of Mr. Yates, given his prior guilty plea and commented on how Counsel was ethically impeded from taking effective steps to represent Mr. Yates because of what had transpired.

The PCJ framed his concern in this way: “so long as the guilty plea stands, it is an ethical impediment that prevents [Counsel] from taking effective steps to defend Mr. Yates. … Simply stated, [Counsel] is irreparably compromised and conflicted respecting the second degree murder charge” ( Counsel Decision at para 47). For these reasons, the PCJ concluded there was a substantial likelihood that if Counsel continued to act for Mr. Yates, their two interests may diverge during trial, which, in his view, meant that Mr.

Yates could not be assured of Counsel’s undivided loyalty. [ 21 ] After the Counsel Decision was rendered, Mr. Yates retained new counsel. A preliminary inquiry was held in the Provincial Court, and Mr. Yates was committed to stand trial in the Court of Queen’s Bench where his trial was ultimately held. As mentioned, neither Mr. Yates nor Counsel challenged the Counsel Decision prior to trial. Mr. Yates retained new legal counsel for trial, who never raised the issue of counsel of choice. In fact, there is no suggestion from the record or by way of fresh evidence on appeal that Mr.

Yates was in any way dissatisfied with the legal representation he received from his trial counsel. IV. THE TRIAL DECISION [ 22 ] A brief recitation of the facts is necessary to help frame the ground of Mr. Yates’s appeal that impugns the trial judge’s treatment of s. 21(2) of the Criminal Code . [ 23 ] On October 23, 2018, Mr. Yates and his friend, Desiree Morin-Jim, discussed robbing an acquaintance of drugs. When Mr. Yates identified the need for a vehicle to aid in the commission of the heist, Ms. Morin-Jim contacted her then boyfriend, Mr. George, as she knew he had a car.

[ 24 ] Mr. George soon joined up with Ms. Morin-Jim and Mr. Yates. Mr. Yates explained his plan to do “a ‘jack move’, which is slang for robbery” ( R v Yates (19 July 2021) Regina, CRM 463 of 2019 (Sask QB) at para 26 [ Conviction Decision ]). Mr. Lane, who was a friend of Mr. Yates and a known cocaine trafficker, was the proposed victim. Mr. George agreed to commit the robbery with Mr. Yates and to split the stolen drugs with him. [ 25 ] Mr. George brought a firearm with him, which was wrapped in a sweater and tucked under the front seat of his vehicle. Mr. George said he would use the weapon to scare Mr.

Lane “into giving up the drugs” (at para 35). [ 26 ] With their plan in place, Mr. Yates then messaged Mr. Lane about wanting to purchase some cocaine. At the time of their messaging, Mr. Lane was in a nearby restaurant with some friends. Mr. Yates, Mr. George and Ms. Morin-Jim drove to that restaurant. Mr. George was the driver, Ms. Morin-Jim was in the front passenger seat and Mr. Yates was seated in the back, directly behind Ms. Morin-Jim. This seating arrangement placed Mr. Yates “with the firearm” (at para 38). [ 27 ] Video surveillance tendered at trial showed Mr.

Yates entering the restaurant, speaking with Mr. Lane and motioning for him to come outside. Mr. Lane initially went to his own vehicle. Mr. Yates then escorted him to Mr. George’s vehicle, where Mr. Lane was placed in the driver’s side back seat next to Mr. George, who had moved there when they had arrived at the restaurant. Mr. Yates assumed the driver’s seat. Once everyone was in Mr. George’s vehicle, Mr. Lane produced some cocaine and requested payment, whereupon Mr. George produced the firearm and demanded that Mr. Lane turn over the drugs. A physical struggle ensued between Mr. Lane and Mr.

George inside the vehicle; at which point, Mr. Yates drove away from the restaurant parking lot, with Mr. George and Mr. Lane continuing to struggle over the firearm in the back seat. After travelling a few blocks into a residential area, Mr. George and Mr. Lane fell out of the vehicle onto the street. Mr. Yates and Ms. Morin-Jim also exited the vehicle but took cover behind it and did not engage in the melee. [ 28 ] Shortly after this occurred, Mr. George discharged the firearm, which resulted in Mr. Lane sustaining a gunshot wound to his upper leg. Mr. Yates, Mr. George and Ms.

Morin-Jim immediately jumped back into the vehicle and sped away. Alive, but bleeding profusely, Mr. Lane was taken to a nearby hospital but succumbed to his injuries in the early morning hours of October 24, 2018. [ 29 ] The sole issue at trial was whether Mr. Yates, who had planned and participated in the robbery, was guilty of manslaughter as a party to the offence. The trial judge relied on s. 21(2) of the Criminal Code to convict Mr. Yates on the premise that he had formed a common intention with Mr. George to rob Mr. Lane with a firearm and that Mr.

Lane’s death was a probable consequence of carrying out that common purpose. The trial judge found Mr. Yates “was aware that the gun was loaded” (at para 45). In stating his conclusion regarding their common intention, the trial judge said this: “I find that Mr. Yates knew that a loaded firearm would be used in the robbery. It was reasonably foreseeable that someone could be seriously injured or killed in the commission of the robbery” (at para 67). V.

ISSUES [ 30 ] Considering the factual matrix, and the way in which the parties have presented their arguments, I would reframe the issues to be determined in this appeal as follows: (

a) Did the PCJ err in disqualifying Counsel and thereby deprive Mr. Yates of counsel of choice at trial? (

i) Does this Court have jurisdiction to hear an appeal from the Counsel Decision ? (ii) Did the PCJ err in law in discharging Counsel? (iii) If so, what is the appropriate remedy? (

b) Did the Court of Queen’s Bench trial judge err in his application of the knowledge component required to convict under s. 21(2) of the Criminal Code ? VI. ANALYSIS A. Did the PCJ err in disqualifying Counsel and thereby deprive Mr. Yates of counsel of choice at trial? 1. Overview of Mr. Yates’s argument [ 31 ] Mr. Yates asserts the PCJ fundamentally erred in directing Counsel to withdraw. More specifically, he says the PCJ erred in concluding that (

a) Counsel had committed an ethical violation by accepting and acting on his instructions to resile from the joint submission, and (

b) Counsel would be in a conflict of interest if she continued to act for him at trial. The effect of the Counsel Decision , says Mr. Yates, was to deprive him of his constitutionally protected right to counsel of choice at trial, which, in the result, rendered his trial unfair. [ 32 ] Mr. Yates submits his appeal should be allowed and the conviction set aside as being either a wrong decision on a question of law pursuant to s. 686(1) (a)(ii) of the Criminal Code or a miscarriage of justice pursuant to s. 686(1) (a)(iii). Mr.

Yates also filed a notice of constitutional question, requesting a remedy under s. 24(1) of the Charter . He asserts that the most obvious way to vindicate the violation of his Charter -protected right to counsel of choice is by ordering a new trial. Regardless of the basis on which the appeal is allowed, Mr. Yates submits that it was not incumbent on him to demonstrate actual prejudice or trial unfairness. 2. Does this Court have jurisdiction to hear an appeal from the Counsel Decision ?

[33] Where a pretrial ruling directs the removal or disqualification of an accused’s counsel of choice, the question that frequentlyarises is at what point in the proceedings can the disqualification order be challenged. [34] The Crown submits this Court lacks the jurisdiction to hear an appeal from the Counsel Decision. Since rights of appeal areexhaustively and exclusively confined to s. 686 of the Criminal Code, by necessary implication, the Crown says, the alleged error must beone that was made by the trial judge acting under

Part XIX or XX of the Criminal Code. In its written submissions, the Crown frames itsposition in this way: “Errors committed by a preliminary inquiry court judge or any other judge in pretrial proceedings must be correctedby some different proceeding”. [35] The Crown goes on to assert that, even if Mr. Yates is entitled to raise this ground on appeal, it should be dismissed because hetook no steps to have the Counsel Decision reviewed or overturned in the two-year period preceding trial or to raise the matter with thetrial judge. In short, the Crown says Mr.

Yates was “seemingly content with the conclusion that [Counsel] could not act for him becauseshe was in a conflict of interest position”. [36] Mr. Yates readily concedes that the errors he now alleges with the Counsel Decision were not raised before trial or even at trial.Nonetheless, he submits the issue is appropriately before this Court on appeal. In advancing this argument, Mr.

Yates points to decisionslike R v Mills, (SCC), [1986] 1 SCR 863 at 899–900, and R v Awashish, 2018 SCC 45 at para 20, [2018] 3 SCR 87, forthe proposition that, as a matter of law, there was no pretrial remedy open to him to challenge the order. In Mills, for instance, theSupreme Court held that there is no immediate “appeal from interlocutory findings” in criminal proceedings (at 900). Similarly, inAwashish, the Supreme Court limited the use of certiorari as an avenue of pretrial challenge to a “jurisdictional error by a Provincial Courtjudge” (at para 20).

Since the Counsel Decision did not engage a jurisdictional issue, he says the certiorari remedy was not open to him. [37] In urging this Court to entertain this ground of appeal, Mr. Yates recognizes that it may be seen as a collateral attack on theCounsel Decision, which is generally barred by appellate review. However, as he points out, that rule is not absolute. R v Litchfield, (SCC), [1993] 4 SCR 333 at 348–349, is as an example of where a flexible approach was taken to a unique set ofcircumstances. Very much in the alternative, Mr.

Yates goes on to analogize his situation to that of a new argument on appeal and points tothe decision in R v Reid, 2016 ONCA 524, 338 CCC (3d) 47, leave to appeal to SCC refused, , as providing theappropriate framework to assess whether an argument of that sort can be advanced. [38] In addressing the jurisdictional argument, I begin by noting that the Court of Appeal for Saskatchewan is a statutory court,which gains its jurisdiction in criminal appeals from the Criminal Code.

Furthermore, but no less important, is the understanding thatcriminal appeals are statutory in nature, and, with limited exceptions, there are no interlocutory appeals.

Section 674 of the Criminal Codespeaks to this principle: Right of Appeal Procedure abolished 674 No proceedings other than those authorized by this Part and

Part XXVI shall be taken by way of appeal in proceedings in respect ofindictable offences. [39] The commentary that follows s. 674 in Michelle Fuerst and David Watt, The Annotated Tremeer’s Criminal Code (Toronto:Thomson Reuters, 2023), succinctly clarifies these points: 674 — Commentary … This

section abolishes all rights and forms of appeal in indictable proceedings, other than those authorized by this Part and

Part XXVI(Extraordinary Remedies). The right of appeal is an exceptional statutory right. The substantive and procedural provisions relating to it, accordingly, are generallyregarded as exhaustive and exclusive. [40] Thus, subject to a few narrow statutory exceptions (none of which apply here), there are no interlocutory appeals: Mills at 956and Awashish at paras 10 and 20.

In Awashish, the Supreme Court observed that the rationale for this general rule is rooted in the principlethat “‘criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own’” and went on to saythat a fragmentation of proceedings “risks having issues decided without the benefit of a full evidentiary record – a significant source ofdelay and an inefficient use of judicial resources” (at para 10, quoting R v DeSousa, (SCC), [1992] 2 SCR 944 at 954). [41] Following Mills, the issue of when an appeal can be brought on a disqualification ruling was revisited in R v Adamson (1991), (ON CA), 65 CCC (3d) 159 (Ont CA).

In Adamson, the Crown succeeded in a pretrial motion to have two defencecounsel removed from the file. The accused’s appeal from that ruling prior to trial was quashed for want of jurisdiction by the OntarioCourt of Appeal. In doing so, the Court dismissed the accused’s submission that the denial of a Charter right is jurisdictional in nature in away that would open the door to a pretrial remedy.

The proper appellate route, the Court concluded, is pursuant to a post-convictionappeal: “The Court of Appeal is not a court of original jurisdiction and is only competent, within the meaning of s. 24(1) of the Charter, togrant a remedy within the context of an appeal” (at 161). [42] The Newfoundland Court of Appeal took a different view in R v Druken (1997), (NL CA), 157 Nfld &PEIR 93 (CA) [Druken], rev’d (SCC), [1998] 1 SCR 978 [SCC Druken]. Mr. Druken was charged with first degreemurder. Prior to trial, the Crown applied to remove Mr. Druken’s counsel for an alleged conflict of interest.

The trial court granted theCrown’s request. Mr. Druken’s appeal from that ruling was met by the Crown’s application to quash it for want of jurisdiction. Themajority of the appellate court dismissed the Crown’s application on the footing that it saw the appeal as something other than an appealfrom an interlocutory ruling and somehow “unrelated to the trial processes” itself (Druken at para 10). It concluded that the ruling was afinal order, which was capable of being appealed, relying on “the powers vested in it by s. 5 of the Judicature Act [RSN 1990, c J4]”, as a

source of appellate authority (at para 15). [43] In dissent, Cameron J.A. adopted the reasoning in Adamson. She rejected the majority’s position that an appeal was open toMr. Druken because it was not an appeal from a “proceeding in respect of an indictable offence” (Druken at para 24). She also rejected theidea that the impugned order was civil, not criminal, and thus disconnected from the criminal trial, saying the following: “The fact that aprocedural step derived from civil practice is employed does not convert the matter into a civil appeal” (at para 26).

As is relevant to thematter at hand, she held that the order removing counsel was interlocutory. She also said this: [30] Alternatively, counsel for Mr. Druken asks that this court fashion a remedy to fit the circumstances. He argues that the CanadianCharter of Rights and Freedoms demands that a remedy be found and provides the jurisdiction to grant one. This submission is premisedon the position that the right of an accused at common law to retain and instruct counsel albeit a right subject to limitations is nowreflected, at least inferentially, in certain sections of the Charter.

As to the impact of the Charter, in R. v. Mills, (SCC),[1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 29 D.L.R.(4th) 161; 26 C.C.C.(3d) 481, at pp. 899–900, 958–64 and 978and Meltzer at p. 1773 the Supreme Court of Canada held that the Charter does not create new rights of appeal. In the criminal contextthat has meant that appeals based on Charter grounds must be taken pursuant to existing rights of appeal already established in theCriminal Code. In Mills at p. 959 and again in Meltzer at p. 1774, McIntyre, J., said of appeals relating to Charter remedies.

The appeal will follow the normal, established procedure. When the trial is completed, the appeal may be taken against the decision orverdict reached and the alleged error in respect of the claim for Charter relief will be a ground of appeal. … [32] It must be noted that, with one exception, in the submissions of counsel for the accused before the trial judge, there was no referenceto the Charter rights of Jody Druken. The one reference to the Charter was in a quotation from a case authority cited by counsel for theaccused.

Certainly the Crown’s application to remove the then counsel for the accused from the record was not defended on the basis of itbeing contrary to the accused’s Charter rights. (Emphasis added) [44] The dissenting opinion in Druken was upheld on further appeal to the Supreme Court, where it provided the following briefreasons (SCC Druken): 1 THE CHIEF JUSTICE -- The decision to remove counsel does not go to jurisdiction. The issue as to whether there is an appeal on ajurisdictional ground is not before us.

The decision to remove counsel is to be reviewed after the trial through the normal appeal processset out by the Criminal Code. 2 We are all in substantial agreement with the reasons of Cameron J.A. of the Court of Appeal of Newfoundland and accordingly theappeal is allowed, the order of the Court of Appeal is set aside and the Crown’s application to strike the appeal is allowed.

The matter isremitted to the trial court to proceed according to law. (Emphasis added) [45] As SCC Druken makes clear, a decision removing or disqualifying counsel of choice is to be reviewed after trial, through thenormal routes of appeal.

The Supreme Court also clarified the point that a decision of this nature is not a jurisdictional issue, and,therefore, it does not fall within the exception carved out in Mills for appeals from interlocutory orders. [46] A similar set of circumstances arose in R v Sandhu, 2012 BCCA 73, 279 CCC (3d) 360 [CA Sandhu], where the accused’slawyer was removed as counsel of choice by a superior court judge prior to the preliminary inquiry that was to be conducted by aprovincial court judge: R v Sandhu, 2011 BCSC 1137, 279 CCC (3d) 327. Mr.

Sandhu appealed that order to the British Columbia Courtof Appeal, which, on application by the Crown, quashed his appeal for want of jurisdiction. The majority found the order made by thesuperior court judge was criminal in nature “because it related to Mr. Sandhu’s hearings with respect of the indictable offences with whichhe was charged” (CA Sandhu at para 20). It determined the order was final and that it pertained to a collateral issue relating to the criminalproceedings.

Based on those findings, the majority held, “The Criminal Code does not provide for the appeal of a collateral issue” (atpara 21) and, thereby, quashed the appeal for want of jurisdiction. [47] Justice Chaisson’s dissenting reasons in CA Sandhu turned on the question of whether that province’s Supreme Court had thejurisdiction to make an order removing counsel in the first place.

Aside from that point, he concluded SCC Druken was binding; in whichcase, “the appeal should go ahead and the issues of jurisdiction and merits [be] addressed” at that time (CA Sandhu at para 30). [48] I pause to note that the disqualification decision in R v Speid (1983), (ON CA), 3 DLR (4th) 246 (Ont CA)(which I discuss below), was appealed by the accused prior to trial. While the Crown had raised a jurisdictional concern with Mr. Speid’sappeal, the Ontario Court of Appeal found no error with counsel’s removal, hence left the jurisdictional issue for another day. [49] SCC Druken remains good law.

In the majority of decisions that cite to SCC Druken, courts have relied on it for the propositionthat the removal of counsel (either pretrial or during a trial proper) is not an issue that can be appealed before the trial has finished. Thisconclusion stems from the principle that interlocutory appeals are not permitted in criminal matters. Regrettably, the Crown failed tomention SCC Druken or, for that matter, CA Sandhu in its oral and written submissions. In my respectful view, the Supreme Court’sdecision in SCC Druken is binding.

The jurisprudence forecloses the possibility of an accused bringing an appeal from an interlocutoryorder disqualifying their counsel of choice. An appeal from an order of that sort must be brought through the normal appellate route, aftertrial. [50] My conclusion on this point is a complete answer to the Crown’s jurisdictional argument. Since there is no jurisdictional issueat play that prevents Mr. Yates from raising this ground of appeal, I need not consider his alternative argument about treating this groundas a new issue on appeal.

[51] As an aside, I reject the Crown’s submission that Mr. Yates could and should have applied for certiorari to quash the CounselDecision. As the Supreme Court made clear in Awashish, while that remedy has broad reach in civil matters, its availability to parties incriminal proceedings is narrow: “The use of certiorari is therefore tightly limited by the Criminal Code and the common law so as toensure that it is not used to do an ‘end-run’ around the rule against interlocutory appeals” (at para 11).

While certiorari is available to thirdparties in a broader range of circumstances, it must relate to a decision of a final and conclusive character vis-à-vis the third party:Awashish at paras 12 and 20 and also see R v Cunningham, 2010 SCC 10, [2010] 1 SCR 331. Although the Crown attempts to paint theCounsel Decision as somehow being jurisdictional in nature (and thus opening the door for certiorari), SCC Druken instructs us that thedecision to remove counsel does not go to jurisdiction. 3. Did the PCJ err in law in discharging Counsel? a.

The law: Removal of counsel of choice [52] Before addressing the errors alleged by Mr. Yates with respect to the Counsel Decision, I find it useful to begin with anexamination of the legal principles associated with the precepts underpinning the right to counsel of choice and the test for removal ordisqualification of counsel. [53] There is no doubt that courts possess the jurisdiction to remove or disqualify counsel of choice to protect their clients or toprotect the administration of justice.

This “jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legalproceedings … may affect the administration of justice” (MacDonald Estate v Martin, (SCC), [1990] 3 SCR 1235 at 1245[MacDonald Estate]). However, as I develop below, the exercise of that authority must proceed with caution. [54] The Ontario Court of Appeal in Speid framed the right to counsel of choice as one that, although not absolute, ought not belightly interfered with: [5] The right of an accused to retain counsel of his choice has long been recognized at common law as a fundamental right.

It has beencarried forth as a singular feature of the Legal Aid Plan in this province and has been inferentially entrenched in the Charter of Rightswhich guarantees everyone upon arrest or detention the right to retain and instruct counsel without delay. However, although it is afundamental right and one to be zealously protected by the court, it is not an absolute right and is subject to reasonable limitations.

It washoped that these limitations would be well known to the bar, but if not honoured, the court has jurisdiction to remove a solicitor from therecord and restrain him from acting. [55] Case law also supports the view that the right to retain counsel of choice is inferentially entrenched in ss. 7, 10(

b) and 11(

d) ofthe Charter: see R v Robillard (1986), (ON CA), 28 CCC (3d) 22 (Ont CA); R v McCallen (1999), (ON CA), 116 OAC 308 (CA); and R v Willett, 2018 ONSC 5031. As the Ontario Court of Appeal discussed in McCallen, “The solicitor–client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel whorepresent their interests” (at para 34).

Thus, “[i]t therefore follows that the accused’s right to control the conduct of the defence free fromunjustified state interference is a significant principle underlying the constitutional protection of the right to choice of counsel” (DavidLayton, “The Pre-Trial Removal of Counsel for Conflict of Interest: Appealability and Remedies on Appeal” (1999) 4 Can Crim L Rev 25(WL) at 18). [56] Counsel of choice is also seen as being significant to the broader societal perception of fairness in the criminal justice system(McCallen): [37] … Including with this fundamental right to counsel, the additional right to choose one’s own counsel enhances the objectiveperception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personaldecision of the individual whose interests are at stake and whose interests the counsel will represent.

Put another way, the right to counsel of choice enhances the broader societal opinion and reputation of the administration of justice: seealso E.G. Ewaschuk, Criminal Pleadings and Practice in Canada, loose-leaf (Rel 4 December 2022) 3d ed (Toronto: Thomson Reuters,2022) at 31:848 (WL) [Ewaschuk], and R v Neil, 2002 SCC 70, [2002] SCR 631. [57] Although the right to counsel of choice has deep roots in Canadian law, that right is not absolute and is subject to reasonablelimitations.

There may be situations – a conflict of interest being one – where trial fairness might be imperilled or the public interest in theadministration of justice justifies judicial intervention. Speid is just such a case. There, prior to trial it came to light that a legal partner ofMr. Speid’s trial counsel had briefly acted for Mr. Speid’s spouse in a criminal matter touching on Mr. Speid’s charges. As things turnedout, Mr. Speid’s spouse subsequently became a Crown witness in the prosecution of her husband for the second degree murder of theirinfant child.

On the first day of trial, the presiding judge directed the removal of Mr. Speid’s legal counsel. That ruling was challenged onappeal on the basis that Mr. Speid had improperly been denied the right to counsel of choice. He sought s. 24(1) Charter relief to remedythe alleged wrong. [58] Speaking for the Ontario Court of Appeal, Dubin J.A. stated that, in assessing the merits of a disqualification order, “the courtmust balance the individual’s right to select counsel of his own choice, public policy and the public interest in the administration of justiceand basic principles of fundamental fairness.

Such an order should not be made unless there are compelling reasons” (at para 6). That said,as Dubin J.A. went on to note, “no client has a right to retain a counsel if that counsel, by accepting the brief, puts himself in a position ofhaving a conflict of interest between his new client and a former one” (at para 7): see also Willett. [59] Not only is the right to counsel of choice fundamental, but courts have repeatedly held that it should not be interfered withlightly. The standard or threshold that provides a lawful basis for disqualification has been described in various ways.

In Speid thestandard was expressed as a “compelling reason” (at para 6), and, in McCallen, it was said to be an “exceptional circumstance” (atpara 69). In a more recent decision from the British Columbia Court of Appeal – R v Legebokof 2016 BCCA 386, 341 CCC (3d) 293,leave to appeal to SCC refused, – the Court expressed it this way: “courts will be slow to do anything that mightinterfere with an accused’s choice of counsel” (at para 56).

[ 60 ] Regardless of how the test or standard is formulated, what I take from the jurisprudence is that an order disqualifying counsel of choice should not be made absent a good and compelling reason for such an order.

As discussed more fully below, where the underlying concern is a conflict of interest, the decision in Neil describes it in terms of a “‘ substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person’” (emphasis added, at para 31, quoting The American Law Institute, Restatement of the Law Third, The Law Governing Lawyers , vol 2 at §121 [ The Law Governing Lawyers ]); that includes “a substantial likelihood that the lawyer may be placed in an actual conflict of interest as the trial progresses” ( Counsel Decision at para 45). [ 61 ] A careful reading of the Counsel Decision leads me to conclude that the PCJ was aware of these principles.

He referred to Speid (which he understood to stand for the proposition that a disqualification order should not be made lightly) and Willett (which recognizes an accused’s Charter -protected right to counsel of choice) but, ultimately, did not find those considerations trumped a court’s obligation “to prevent unethical conduct and in the interest of a fair trial and to protect the process of the Court” (emphasis added, Counsel Decision at para 41).

In fact, the PCJ appeared to settle on this formulation as the appropriate threshold for a disqualification order to be made: “It would appear that the Court should only discharge or dismiss counsel where allowing counsel to continue ‘would undermine public confidence in the administration of justice’ or the Court determines that the lawyer involved is in a conflict of interest” (at para 41, quoting Willett at para 25 ). [ 62 ] By identifying Speid and Willett , I am prepared to accept that the PCJ understood the right to counsel of choice was not to be lightly interfered with.

He also understood that avoidance of a conflict of interest was highly relevant to his analysis. In short, although the PCJ could have explored these legal principles more thoroughly, I find no error in his identification of the law. The question, as I see it, is whether he erred in its application. b. Was there an ethical breach? [ 63 ] Mr. Yates asserts the PCJ improperly characterized his decision to plead guilty to the lesser included offence of manslaughter and proceed by joint submission on sentence as an undertaking given by Counsel.

He says the PCJ misinterpreted R v Nixon , 2011 SCC 34 , [2011] 2 SCR 566 [ SCC Nixon ], which, at least from the Crown’s perspective, settled the principle that a “plea agreement ‘fell squarely within the core elements of prosecutorial discretion’” (at para 30, quoting the Alberta Court of Appeal decision, R v Nixon , 2009 ABCA 269 at para 33 , [2009] 10 WWR 641 [ CA Nixon ]) and cannot be “characterized as a contractual undertaking” ( SCC Nixon at para 49 ). The repudiation of a plea agreement on its own, he says, does not amount to ethical misconduct. In his factum, Mr.

Yates advances this proposition: “if a Crown can decide to repudiate a plea agreement (as was done in SCC Nixon ), surely the defence can as well, because in neither case are counsel ethically bound to follow through on the agreement”. Building on this proposition, Mr. Yates submits that Counsel was obliged to follow his instructions to resile from the joint submission, and, as such, it could not be considered Counsel’s undertaking. [ 64 ] The PCJ disqualified Counsel because he concluded she could not, on the one hand, ethically accept and act on Mr.

Yates’s instructions to resile from the joint submission in view of the agreement she had reached with the Crown and, on the other, continue to act as counsel of record. The PCJ’s reasoning is grounded in how he approached the issue before him, which he saw as being this: “was the conduct of [Counsel] contrary to the Code of Professional Conduct issued by the Law Society of Saskatchewan, and thus unethical?” ( Counsel Decision at para 18).

The provisions of the Law Society of Saskatchewan’s Code of Professional Conduct that he turned to for guidance included s. 5.1-6 (a lawyer’s obligation to fulfill undertakings and trust conditions) and s. 7.2-1 (a lawyer’s duty to fulfill every undertaking) – and the commentary that follows to the effect that a person to whom an undertaking is given is entitled to expect the lawyer giving it to honour it personally. [ 65 ] The PCJ repeatedly characterized Mr. Yates’s change of position as one in which Counsel had resiled from an agreement and an undertaking.

A careful review of the Counsel Decision reveals numerous examples of where the PCJ frequently referred to the joint submission as her agreement (presumably in reference to Counsel) and to the guilty plea as both an agreement and an undertaking . In referencing the guilty plea in particular, the PCJ had this to say: [32] By the guilty plea entered to the manslaughter charge, which remains part of the public record, Mr.

Yates admitted that he caused the death of Miguel Lane; [Counsel] personally admitted to the Court that he caused the death of Miguel Lane ; [Counsel] is deemed to have undertaken to the Court that she discussed these matters with her client and that he knowingly instructed her to make these admissions by guilty plea to the Court.

If [Counsel] carries on as defence counsel and advances a complete defence to the murder charge, as she is speaking about, she will be clearly acting in violation of these ethical provisions. (Emphasis added) [ 66 ] With respect, there is nothing on the record to support the finding that “[Counsel] personally admitted to the Court that [Mr. Yates] caused the death of Miguel Lane”. While the PCJ no doubt meant that, in tendering a plea of guilty, it could be inferred that Mr.

Yates had communicated that fact to Counsel, that is not what she (Counsel) said. [ 67 ] In his reasons for disqualifying Counsel on the basis of unethical conduct, the PCJ concluded as follows (repeated here for reference): [40] In the present case, I have been presented with no reason or argument as to why counsel should be able to back away from her agreement, other than her client has so instructed. She has argued there is no ethical problem with her following her client’s instructions. I disagree. Agreements and undertakings between counsel are very serious, and cannot be easily disregarded.

In my view, by casually disregarding the agreement reached, [Counsel] has acted contrary to the Code of Professional Conduct . Joint submissions have become an accepted and much utilized process of the Court. She has improperly undermined that process. [ 68 ] From these and other passages in the Counsel Decision , it is apparent that the PCJ viewed agreements and undertakings as if they are one and the same and that he considered Counsel’s non-compliance with an agreement (whatever that may be) to amount to a breach of ethics.

It is difficult to discern whether this was simply a poor choice of words by the PCJ or if he truly conflated the two concepts.

[ 69 ] It is trite to say that a breach of a lawyer’s undertaking raises serious ethical concerns. The following passages from the Code of Professional Conduct provide a clear expression of the professional obligations associated with undertakings.

Section 5.1-6 requires a lawyer to “ strictly and scrupulously fulfill any undertakings given and honour any trust conditions accepted in the course of litigation”.

Section 7.2-11 states, “A lawyer must not give an undertaking that cannot be fulfilled and must fulfill every undertaking given and honour every trust condition once accepted”. A violation of these provisions can rightly be seen as a serious ethical breach. [ 70 ] Of course, the issue here is not just whether an agreement to resolve a criminal matter in a certain way is the same thing and carries the same consequences as an undertaking; it is also whether a client’s decision to resile from a joint submission prior to a trial can be visited upon legal counsel as some form of a breach of an undertaking.

Based on the wording of the Counsel Decision , I take the PCJ to have been of the opinion that it was Counsel who agreed to enter into the plea agreement and it was Counsel who agreed to proceed by joint submission – so she was ethically obliged to see that agreement fulfilled; failing which, she had to withdraw. [ 71 ] As mentioned earlier, the Supreme Court in SCC Nixon addressed the question of whether a plea agreement is the equivalent of an undertaking. The facts in SCC Nixon are these. Ms. Nixon was charged with several Criminal Code driving offences arising out of a vehicular crash that killed two people.

After a preliminary inquiry had been held, the Crown prosecutor and defence counsel entered a written agreement wherein Ms. Nixon agreed to plead guilty to a charge of careless driving pursuant to provincial traffic safety legislation. Before the plea agreement was perfected, the Crown resiled from it and decided that it would proceed to trial on the Criminal Code charges. [ 72 ] The trial judge concluded that the Crown’s repudiation of the plea agreement was an abuse of process that breached Ms.

Nixon’s s. 7 Charter rights and directed the Crown to honour the agreement: R v Nixon , 2008 ABPC 20 at para 60 , [2008] 8 WWR 740. The Alberta Court of Appeal overturned that decision, holding that repudiation of the plea agreement was a matter of prosecutorial discretion, reviewable only for abuse of process, and that, when the correct legal test was applied, the evidence did not support a finding of abuse of process: CA Nixon at para 50 .

The Supreme Court affirmed the Court of Appeal’s conclusion in SCC Nixon . [ 73 ] Although SCC Nixon involved the Crown’s repudiation of a plea deal, and was underpinned by broader considerations of prosecutorial discretion, the decision is important to the matter at hand for how the Supreme Court addressed the proposition put forth by one of the intervenors: i.e., that the Crown’s plea offer, which had been accepted by the defence, was akin to a contractual undertaking. As was put to the Supreme Court by the accused’s counsel, “A bargain is a bargain, it is argued.

Absent some vitiating flaw in the negotiating process, such as mistake, misrepresentation or fraud, the Crown should be held strictly to its word” (at para 22). [ 74 ] The Supreme Court unanimously rejected the lawyer’s undertaking analogy: [44] As stated earlier, it is argued that a plea agreement should be regarded as a contractual undertaking and enforced just as any other lawyers’ undertaking. This argument cannot be sustained. It completely ignores the public dimension of a plea agreement. Indeed, contrary to Ms.

Nixon’s contention, the Law Society of Alberta specifically recognizes in the comment to Rule 27 of its Code of Professional Conduct that “[a]n agreement between the prosecution and defence regarding the plea to be entered is not considered a usual lawyers’ undertaking due to the policy considerations involved” (updated 2009 (online)).

Vitiating factors, such as mistake, misrepresentation or fraud, which usually inform a private party’s right to resile from a bargain, do not fully capture the public interest considerations which are at play in any decision to repudiate a plea agreement. [ 75 ] That said, the Supreme Court in SCC Nixon took pains to emphasize the practical necessity of plea bargains in our criminal justice system and the importance of honouring such agreements: [49] All Attorneys General who have participated in this appeal agree that a plea agreement should only be repudiated in exceptional and rare circumstances.

However, the lawyers’ undertaking analogy can only go so far on the question that occupies us. The analogy can usefully underscore the importance of honouring plea agreements, but it cannot inform the standard against which any repudiation conduct is to be measured. The Martin Committee Report [1993] made this clear in the same commentary quoted above, stating the following: Thus, it is plain that resolution agreements must not undermine the integrity of the court, or otherwise bring the administration of justice into disrepute.

While the sanctity of agreements entered into is an important principle of the administration of justice, Crown counsel’s primary duty is to the integrity of the system. Accordingly, in the rare cases where these two values clash, the latter must prevail. [p. 314] As a result, the argument that a plea agreement can simply be characterized as a contractual undertaking must fail. [ 76 ] The facts in SCC Nixon differ from those here in the following ways: (

a) SCC Nixon involved the repudiation of a plea agreement by the Crown, not defence counsel, (

b) the independence of the office of the Attorney General is regarded as somewhat of a constitutional principle, and (

c) the role of the Crown is informed by different policy considerations than that of defence counsel. That said, I see no principled basis why the Supreme Court’s clear rejection of the undertaking analogy should not extend to situations where the defence resiles from a plea agreement. [ 77 ] Another way of looking at the matter is from the perspective of a lawyer’s obligation to the client.

Section 5.1-1 of the Code of Professional Conduct requires lawyers to “represent the client resolutely and honourably within the limits of the law”; but, as discussed by David Layton and Michel Proulx, Ethics and Criminal Law , 2d ed (Toronto: Irwin Law, 2015), situations may arise where a lawyer has no choice but to abandon the plea agreement (at 480): In particular, although defence lawyers are ethically required to abide by plea agreements, this obligation is subject to the crucial proviso that where the client changes her mind before sentencing , there may be no choice but to abandon the agreement.

To hold otherwise would effectively treat the plea agreement as an irrevocable waiver of the accused constitutional right to plead not guilty, a proposition for which no case law exists in support. (Emphasis added) [ 78 ] With those observations in mind, I find myself in agreement with Mr. Yates’s overarching submission that it was entirely

appropriate for Counsel to follow his instructions by communicating his intention to repudiate from the joint submission on sentence. As he put it, Counsel could not force him to adhere to the joint submission, and, as such, it was not an agreement that was within her power and control to fulfill. Counsel was obliged to inform the PCJ of Mr.

Yates’s change of mind or withdraw her retainer. [ 79 ] For all of these reasons, I find the PCJ erred in characterizing the agreement to proceed by joint submission as being the equivalent to an undertaking from which Counsel could not resile without raising ethical concerns that warranted her removal from the file. More to the point, I find that he erred in specifically determining that Counsel was in breach of her ethical obligations by conveying Mr.

Yates’s instructions concerning his intention not to proceed by joint submission. [ 80 ] The second ethical violation identified by the PCJ was Counsel’s refusal to withdraw as counsel for Mr. Yates in the face of what he viewed as her ongoing breach of ethics. The PCJ zeroed in on the question of whether, having struck a deal with the Crown, and after the parties having taken certain steps in reliance on that agreement, Counsel could accept instructions to resile from the joint submission and continue to act for Mr. Yates as if nothing had happened.

The PCJ reasoned that, having taken steps to implement the agreement, “ counsel [had] adopted and crystalized the agreement, and that agreement was binding upon them ” (emphasis added, Counsel Decision at para 28). The PCJ built on that logic by pointing to s. 3.7-7 of the Code of Professional Conduct , which obliges lawyers to withdraw where a client persists on instructing them to act contrary to professional ethics.

He concluded that Counsel had to withdraw because she could not accept and operate on instructions from her client (i.e., to resile from the agreement) that would impel her to act contrary to the canon of professional ethics. [ 81 ] With the greatest of respect, this is circular reasoning built on an erroneous premise. As I discussed above, there was no undertaking (as that term is commonly understood) and, therefore, no breach of an undertaking. Simply put, Counsel was not offside her obligation to “strictly and scrupulously fulfill any undertakings” (s. 5.1-6).

Consequently, the obligatory withdrawal provision contained in s. 3.7-7 – “a lawyer must withdraw if … (

b) a client persists in instructing the lawyer to act contrary to professional ethics” – was not enga ged. [ 82 ] All of that said, Counsel was not unburdened by ethical issues. Her continued role after Mr. Yates had agreed to plead guilty placed her in a difficult spot that should have given her cause for concern.

This sort of conundrum is discussed by the authors of Ethics and Criminal Law i n the context of confessions and admissions of guilt by a client (at 37): A particularly difficult application of these principles arises where a client admits the elements of the charged offence to counsel, or expresses a willingness to do so in court, in anticipation of a plea resolution, but for whatever reason the resolution agreement is not consummated or is repudiated, and the matter proceeds to a contested trial. [ 83 ] I recognize that there are any number of reasons why Mr.

Yates may have decided to plead guilty to manslaughter. However, where a client and lawyer are content to continue with the retainer after the client resiles from an agreement, there is an issue as to whether the admissions made to counsel will restrict the conduct of the defence at trial. The authors make the following observation with respect to that scenario (at 37): If counsel is convinced the client’s admissions are true and voluntary, and they are not retracted, counsel knows the client is guilty within the meaning of the ethical rules, and the defence will be limited.

If, on the other hand, the client’s admissions in anticipation of the guilty plea were partial or equivocal, or are satisfactorily retracted following derailment of the resolution agreement, the lawyer may be able to mount a defence free of the limitations that come from irresistible knowledge of guilt.

The prospect of counsel remaining on the case after a plea resolution falls apart is especially tenuous where she has repeated the client’s unequivocal admissions in open court or conveyed them to the Crown in circumstances that do not attract the protection of plea negotiation privilege. [ 84 ] Apart from the ethical concern is the conduct of the trial itself.

This is because, as the authors of Ethics and Criminal Law note, “counsel may be a witness for the Crown and may in any event legitimately feel that her credibility as zealous advocate for the client has been publicly undermined in a way that requires withdrawal from the retainer” (footnotes omitted, at 38).

See, for example, Adamson . [ 85 ] However, balanced against that concern is s. 5.1-8 of the Code of Professional Conduct , which addresses the issue of an accused’s agreement to enter a guilty plea: 5.1-8 A lawyer for an accused or potential accused may enter into an agreement with the prosecutor about a guilty plea if, following investigation, (

a) the lawyer advises his or her client about the prospects for an acquittal or finding of guilt; (

b) the lawyer advises the client of the implications and possible consequences of a guilty plea and particularly of the sentencing authority and discretion of the court, including the fact that the court is not bound by any agreement about a guilty plea; (

c) the client voluntarily is prepared to admit the necessary factual and mental elements of the offence charged; and (

d) the client voluntarily instructs the lawyer to enter into an agreement as to a guilty plea. (Emphasis added) [ 86 ]

Section 5.1-1 is also relevant. As noted above, it requires lawyers, when acting as advocates, to “represent the client resolutely and honourably within the limits of the law”. Commentary 10 to that

section speaks to how that duty of loyalty unfolds and relates to limitations on the lawyer when a client makes an admission to them (at 160): [10] Admissions made by the accused to a lawyer may impose strict limitations on the conduct of the defence, and the accused should be made aware of this. For example, if the accused clearly admits to the lawyer the factual and mental elements necessary to constitute the offence, the lawyer, if convinced that the admissions are true and voluntary, may properly take objection to the jurisdiction of the court,

the form of the indictment or the admissibility or sufficiency of the evidence, but must not suggest that some other person committed theoffence or call any evidence that, by reason of the admissions, the lawyer believes to be false. Nor may the lawyer set up an affirmativecase inconsistent with such admissions, for example, by calling evidence in support of an alibi intended to show that the accused could nothave done or, in fact, has not done the act. Such admissions will also impose a limit on the extent to which the lawyer may attack theevidence for the prosecution.

The lawyer is entitled to test the evidence given by each individual witness for the prosecution and arguethat the evidence taken as a whole is insufficient to amount to proof that the accused is guilty of the offence charged, but the lawyershould go no further than that. [87] Although it may be inferred that, by instructing Counsel to enter a guilty plea to manslaughter on his behalf, Mr. Yates hadadmitted to her the necessary factual and mental elements of that offence, neither Mr. Yates nor Counsel made any explicit admissions ofthat sort in open court before the PCJ.

This is the full extent of what transpired in court when the guilty plea was tendered: [Counsel]: Yes, Your Honour, I appear for Mr. Yates. He’s the second gentlemen in the prisoner’s box. I also have instructions, with respect to Information 1581, to waive reading of the formal election. The election would be this court, YourHonour. And I have instructions to enter a guilty plea. I can advise the Court that there is a joint submission that will be coming from counsel and ourself in respect of a sentence should thismatter proceed on Thursday as proposed.

THE COURT: Okay. [Counsel]: So with that anticipation, we are prepared to offer our guilty plea and -- and adjourn this matter (INDISCERNIBLE). THE COURT: And are you in a position to waive formal reading of the Information? [Counsel]: Yes, I did, Your Honour. [88] Finally, I wish to briefly touch on several authorities the PCJ drew upon to emphasize the importance of plea agreements and,as he put it, “the high bar that must be crossed, for counsel to resile from an agreement” (Counsel Decision at para 33).

With respect, I donot consider any of those cases helpful in resolving the question of whether Counsel violated her ethical obligations. Most were appealsfrom sentence, in circumstances where the sentencing judge had departed from a joint submission that had been proposed by the Crownand defence: see, for example, R v McKay, 2004 MBCA 78, 186 CCC (3d) 328, and R v Sinclair, 2004 MBCA 48, 185 CCC (3d) 569. ThePCJ also cited extensively from R v Anthony-Cook, 2016 SCC 43, [2016] 2 SCR 204.

Although that decision is significant for its helpfulcommentary on the importance of plea agreements and joint submissions, its focus was on the limited circumstances in which a sentencingjudge can depart from a joint submission on sentence. In other words, the high standard discussed in that line of cases refers to situationswhere a sentencing judge chooses to depart from a joint submission.

This is not that. [89] The PCJ also relied on R v R.N.M. (2006), (ON SC), 213 CCC (3d) 107 (Ont Sup Ct), a case that involvedperhaps the closest factual scenario to the matter at hand and in which the judge who rendered the decision appears to have found theundertaking analogy persuasive. That said, the Court in R.N.M. did not expressly adopt that principle.

And, perhaps more importantly,R.N.M. predates the Supreme Court’s decision in SCC Nixon, where the undertaking analogy was squarely rejected. [90] For all these reasons, I am left to conclude that, although Counsel may have faced an ethical dilemma as to whether she couldcontinue to act for Mr. Yates, and provide him with a complete defence, given what he might have told her leading up to his guilty plea,the PCJ erred in determining that Counsel acted contrary to the Code of Professional Conduct “by casually disregarding the agreementreached” (Counsel Decision at para 40).

That conclusion, in my respectful view, was grounded in legal error and cannot be sustained. c. Was Counsel in a conflict of interest? [91] The PCJ also determined that Counsel was “irreparably compromised and conflicted” for the following two fundamentalreasons: (

a) the guilty plea prevented her “from effectively representing Mr. Yates”, and (

b) she was not able to “bring an application toexpunge” the guilty plea (at para 47). [92] Much of the PCJ’s concern with Counsel’s ability to continue to represent Mr. Yates centered on her submission, in theapplication for a publication ban, that “[t]he Accused, even at a trial for second degree murder has the right to advance a defence ofcomplete innocence”. Given that state of play, the PCJ summarized how he saw Counsel being compromised (Counsel Decision): [31] If [Counsel] continues to act, and presents anything resembling a full defence to the charge of second degree murder, she will actcontrary to the canon of ethics.

Section 5.1-1 deals with the lawyers duties as an advocate. It states: When acting as an advocate, a lawyer must represent the client resolutely and honorably within the limits of the law while treating thetribunal with candor, fairness, courtesy and respect. Commentary number 10 under this

section specifically deals with ethical obligations on defence counsel. This paragraph states:[Commentary 10, as quoted above in paragraph [86], is reproduced here]. It is apparent from her letter that [Counsel] is intent uponcontinuing to act and providing a full defence to Mr. Yates at a trial for second degree murder.

In ground number 13 advanced to argue forthe publication ban, she stated: “The accused, even at a trial for second degree murder has the right to advance a defence of completeinnocence”. [93] With respect to the guilty plea, the PCJ commented on how it was a matter of public record and effectively operated as anadmission by both Counsel and Mr. Yates that he unlawfully caused the death of Mr. Lane. As previously noted, the PCJ summarized hisconcern with this situation as follows: [32] By the guilty plea entered to the manslaughter charge, which remains part of the public record, Mr.

Yates admitted that he caused the

death of Miguel Lane; [Counsel] personally admitted to the Court that he caused the death of Miguel Lane; [Counsel] is deemed to haveundertaken to the Court that she discussed these matters with her client and that he knowingly instructed her to make these admissions byguilty plea to the Court.

If [Counsel] carries on as defence counsel and advances a complete defence to the murder charge, as she isspeaking about, she will be clearly acting in violation of these ethical provisions. [94] As to the unexpunged guilty plea remaining on the record, the PCJ postulated on how it could be used by the Crown at trial asa prior admission against Mr. Yates’s interest. That admission, the PCJ reasoned, would curtail Counsel’s cross-examination of witnessesand any argument about Mr. Yates’s complete innocence to the charge.

Moreover, if the fact of the guilty plea was raised at trial, the PCJsurmised that Counsel could be called as a witness to explain her actions and justify why she and her client had departed from the pleaagreement. He described the conundrum facing Counsel in this way: [46] … At that time, she would be compelled to give evidence, like in an expungement hearing, detailing the communication betweenherself and her client and why the client was taking that step.

I would note that when this matter was last before me on July 4, [Counsel]stated … she could not answer or really discuss the allegation of unethical conduct as her client has refused to waive his Solicitor–ClientPrivilege. This is a virtual admission that as soon as the issue of ethical conduct or the guilty plea are raised, the interest of [Counsel] andher client will diverge and she will be in a conflict.

The PCJ concluded his conflict-of-interest analysis by stating as follows: [47] It would seem to me that so long as the guilty plea stands, it is an ethical impediment that prevents [Counsel] from taking effectivesteps to defend Mr. Yates. I should think that defence counsel will want to consider an application to expunge the guilty plea. Clearly[Counsel] cannot advise Mr. Yates on that point, or personally bring an application to expunge. Simply stated, [Counsel] is irreparablycompromised and conflicted respecting the second degree murder charge. The guilty plea prevents her from effectively representingMr.

Yates; and she cannot bring an application to expunge. (Emphasis added) [95] It is beyond doubt that lawyers owe a duty of loyalty to their clients and that the duty is grounded in a fiduciary relationshipbetween counsel and client: see Neil at para 16 and Strother v 3464920 Canada Inc., 2007 SCC 24 at paras 34–35, [2007] 2 SCR 177[Strother]. Neil adopted the following commentary in Ramrakha v Zinner (1994), 1994 ABCA 341 , 157 AR 279 (CA), as anaccurate expression of that duty: [25] The general duty of loyalty has frequently been stated. In Ramrakha v.

Zinner (1994), 1994 ABCA 341 , 157 A.R. 279(C.A.), Harradence J.A., concurring, observed, at para. 73: A solicitor is in a fiduciary relationship to his client and must avoid situations where he has, or potentially may, develop a conflict ofinterests … .

The logic behind this is cogent in that a solicitor must be able to provide his client with complete and undivided loyalty,dedication, full disclosure, and good faith, all of which may be jeopardized if more than one interest is represented. [96] The duty of loyalty is multi-faceted: “This duty has three salient dimensions: (1) a duty to avoid conflicting interests; (2) a dutyof commitment to the client’s cause; and (3) a duty of candour” (Canadian National Railway Company v McKercher LLP, 2013 SCC 39 atpara 19, [2013] 2 SCR 649, referencing Neil at para 19).

The duty of loyalty requires that counsel not “take an adversarial position againsta client with respect to the same subject matter” (Willett at para 20). [97] Neil is also helpful in its statement of what is meant by a conflict in the context of the duty of loyalty: [31] In my view the … law firm … put themselves in a position where the duties they undertook to other clients conflicted with the dutyof loyalty which they owed to the appellant.

I adopt, in this respect, the notion of a “conflict” in §121 of the Restatement Third, The LawGoverning Lawyers (2000), vol. 2, at pp. 244–45, as a “substantial risk that the lawyer’s representation of the client would be materiallyand adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person”. (Emphasis added) [98] The definition of conflict of interest in s. 1.1-1 of the Code of Professional Conduct largely follows the Neil formulation: “A‘conflict of interest’ means the existence of a substantial risk that a lawyer’s 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” (emphasisadded, at 4).

See also Strother at para 51 and Galambos v Perez, 2009 SCC 48 at para 31, [2009] 3 SCR 247. [99] With those principles in mind, I return to the Counsel Decision. Stated briefly, and with the greatest of respect to the PCJ, I seeseveral flaws in his analysis and reasoning process. [100] The PCJ understood, or at least inferred, that Mr. Yates had admitted to Counsel that he had caused the death of Mr. Lane. Healso inferred that Counsel implicitly undertook to the court that she had discussed these matters with Mr.

Yates and that he knowingly andvoluntarily instructed her to tender a guilty plea to manslaughter on his behalf. Given that implicit understanding, it bears repeating howthe PCJ saw all of this as leading to a conflict: “If [Counsel] carries on as defence counsel and advances a complete defence to the murdercharge, as she is speaking about, she will be clearly acting in violation of these ethical provisions” (at para 32). [101] The problem with this line of reasoning is twofold. First, the PCJ’s foundation for the ethical breach rests on his adoption of theundertaking analogy.

As discussed above, that analogy was misplaced; consequently, as I see it, there was no obvious breach of the Codeof Professional Conduct for that reason. Second, as also outlined above, Commentary 10 to s. 5.1-1 (duty to act resolutely) speaks directlyto defence counsel’s duty of loyalty to a client and the scope of a lawyer’s continued ability to represent an accused where an admission ismade. There is no question that a client’s admission of guilt constrains counsel’s strategy when counsel has an unequivocal and reasonablesubjective belief of their client’s guilt.

If so, while defence counsel may not set up an affirmative defence inconsistent with the admission,counsel can still take objection to the jurisdiction of the court, the form of the indictment or the admissibility or sufficiency of theevidence. As things turned out, that is exactly the approach that was pursued by trial counsel.

[102] It is unclear from the record what Counsel meant when she said she was going to run a full defence, and she was not asked toclarify her comment. Placed in context, although Counsel may have been overly optimistic about the extent of the defence she could run,the Code of Professional Conduct did not prevent her from continuing to act for Mr. Yates in light of his guilty plea. While, on the face ofthings, Mr.

Yates’s prior guilty plea undoubtedly limited the strategic options available to Counsel in conducting his defence, it did notpreclude her from acting for him nor did it place her in violation of the Code of Professional Conduct. The point to all of this is that,pursuant to Commentary 10, there remained some avenue for Counsel to continue to act for Mr. Yates. The situation was not hopeless. Itwas up to Mr.

Yates to decide whether he wished to continue with his retainer of Counsel, in spite of those limitations. [103] Second, the PCJ’s concern appeared to be rooted in his understanding that the guilty plea remained on the record and was aconcluded process. Since the plea had not been expunged, the PCJ surmised that the Crown could introduce it as evidence at trial as anadmission of guilt; in which case, Counsel “would be compelled to explain her actions and explain and justify why she and her client arenow departing from that prior position” (Counsel Decision at para 46).

If that were to occur, he said, Counsel would be forced to divulgeher communication with Mr. Yates and explain why he had resiled from the joint submission. Based on that line of reasoning, the PCJconcluded, “the guilty plea prevents her from effectively representing Mr. Yates; and she cannot bring an application to expunge” (atpara 47). [104] Setting aside whether the Crown could call Counsel as a witness and force her to divulge privileged solicitor–clientcommunication, I find the PCJ’s conclusion is constructed on a flawed premise. At most, Mr.

Yates can be taken to have tendered a guiltyplea to the manslaughter charge. A plea of guilty tendered by an accused does not – on its own

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