R v Yates, 2023 SKCA 47
[53] There is no doubt that courts possess the jurisdiction to remove or disqualify counsel of choice to protect their clients or to protect the administration of justice. This “jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings … may affect the administration of justice” (MacDonald Estate v Martin, 1990 CanLII 32 (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 be lightly 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 been carried forth as a singular feature of the Legal Aid Plan in this province and has been inferentially entrenched in the Charter of Rights which guarantees everyone upon arrest or detention the right to retain and instruct counsel without delay. However, although it is a fundamental right and one to be zealously protected by the court, it is not an absolute right and is subject to reasonable limitations. It was hoped that these limitations would be well known to the bar, but if not honoured, the court has jurisdiction to remove a solicitor from the record 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) of the Charter: see R v Robillard (1986), 1986 CanLII 4687 (ON CA), 28 CCC (3d) 22 (Ont CA); R v McCallen (1999), 1999 CanLII 3685 (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 who represent their interests” (at para 34). Thus, “[i]t therefore follows that the accused’s right to control the conduct of the defence free from unjustified state interference is a significant principle underlying the constitutional protection of the right to choice of counsel” (David Layton, “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 objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision 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: see also 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 reasonable limitations. There may be situations – a conflict of interest being one – where trial fairness might be imperilled or the public interest in the administration of justice justifies judicial intervention. Speid is just such a case. There, prior to trial it came to light that a legal partner of Mr. Speid’s trial counsel had briefly acted for Mr. Speid’s spouse in a criminal matter touching on Mr. Speid’s charges. As things turned out, Mr. Speid’s spouse subsequently became a Crown witness in the prosecution of her husband for the second degree murder of their infant child. On the first day of trial, the presiding judge directed the removal of Mr. Speid’s legal counsel. That ruling was challenged on appeal on the basis that Mr. Speid had improperly been denied the right to counsel of choice. He sought s. 24(1) Charter relief to remedy the alleged wrong.
[58] Speaking for the Ontario Court of Appeal, Dubin J.A. stated that, in assessing the merits of a disqualification order, “the court must balance the individual’s right to select counsel of his own choice, public policy and the public interest in the administration of justice and 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 of having 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 with lightly. The standard or threshold that provides a lawful basis for disqualification has been described in various ways. In Speid the standard was expressed as a “compelling reason” (at para 6), and, in McCallen, it was said to be an “exceptional circumstance” (at para 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, 2017 CanLII 6743 – the Court expressed it this way: “courts will be slow to do anything that might interfere 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).
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