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[13] In R v Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 OR (3d) 161 at 169, 84 OAC 241 (cited to OR), Doherty J.A. held that allegations of a conflict of interest by trial counsel can be raised for the first time on appeal. Material outlining the history of the client-solicitor relationship may be necessary to determine if there was a conflict of interest and if it resulted in a miscarriage of justice: at 170. Although no such material was provided here, the appellant relies on 173-74 of Widdifield, which suggest that once an appellant demonstrates an actual conflict of interest and “some impairment of counsel’s ability to represent effectively the interests of the appellant” as a result of the conflict, “the appellant has been denied the right to make full answer and defence and a miscarriage of justice has occurred.” The appellant need not demonstrate that the verdict would have been different but for the ineffective representation of counsel because the product of ineffective representation flowing from a conflict if interest is characterized as a miscarriage of justice.
[14] Doherty J.A. distinguished between an “apparent conflict of interests” and a “conflict of interests that is apparent”: at 174. He said the former is a conflict that seems to exist but may not, whereas the latter plainly exists and is observable.
[15] He also contrasted the situation of an allegation of a conflict of interest arising at trial with one raised on appeal:
Where the allegation of a conflict of interests is raised for the first time on appeal, the perspective is very different. The appellate court looks backward at the completed trial. The court has the full trial record and may have further material detailing the circumstances surrounding the joint representation and the effects of that representation on counsel’s ability to defend the appellant. Unlike the trial court, the appellate court is not concerned with prophylactic measures intended to avoid the potential injustice which may flow from compromised representation. Instead, the appellate court must determine whether counsel’s representation was in fact compromised in such a way as to result in a miscarriage of justice. The concern on appeal must be with what happened and not with what might have happened. It makes no more sense to find ineffective representation based on the possibility of a conflict of interest, than it does to find ineffective representation based on the mere possibility of incompetent representation.
at 175-76 (emphasis added)
[16] Doherty J.A. cautioned about the danger of reversing a conviction every time there is the appearance of a conflict of interest:
[a] standard which would require appellate reversal of a conviction whenever it could be said that there was an appearance of a conflict of interests, could do significant harm to the criminal justice system. If that standard were adopted, it would either virtually eliminate the joint representation of co‑accused, or it would permit accused to avail themselves of the advantages of joint representation at trial, secure in the knowledge that if the verdict went against them, reversal on appeal was a virtual certainty.
at 176 (emphasis added)
[17] He summarized as follows:
I have stressed the need to demonstrate both an actual conflict of interests and an adverse effect on counsel’s performance flowing from that conflict. The two requirements are distinct and together produce a miscarriage of justice. Where, however, a conflict of interests exists between jointly tried co‑accused, an action by counsel which gives preference to the interests of one accused will almost inevitably produce the required adverse effect on counsel’s representation of the other accused .... Consequently, in most cases involving allegations of conflicts of interests arising out of the joint defence of co‑accused who are jointly tried, the real issue on appeal will be whether there was an actual conflict of interests. If that conflict is demonstrated, the conclusion that at least one of the co‑accused did not receive effective representation will follow in most cases.
at 177-78 (citations and footnote omitted)
[18] I am prepared to accept that an actual conflict of interest arose when Hak did not testify about threats by Diab because it was not in Diab’s interest for his counsel to cross-examine Hak on this deviation from his written statement. It could, however, have been in the appellant’s interest for him to do so, since it could add to the argument that Hak was not credible.
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