Hypothetical risk of conflict insufficient for removal: Nordheimer

Speculative risks of conflict are not enough to remove defence counsel, a Superior Court judge has ruled in a case the Crown argued could see the accused’s lawyer cross-examining another client of his.

'This case underscores the very significant right to counsel of choice,' says David Cohn. (Photo: Laura Pedersen)In a criminal trial involving a Nuit Blanche weekend shooting in Toronto, Crowns Beverley Richards and S. Beauchamp sought to remove lawyers Sean MacDonald and Allison Craig as counsel of record for the defendant because it will call one of the MacDonald’s clients as a witness. That client happens to be a friend of the accused.

The Crown also said the defence may present the same client as an alternate suspect in the matter despite an assurance to the contrary.

But according to Superior Court Justice Ian Nordheimer, the risks were speculative and could be prevented.

“The Crown responds by saying that there is no way of knowing whether the defence might change their mind regarding the parameters of the alternate suspect theory during the course of the trial,” wrote Nordheimer. “I accept that a risk exists but it is very much a speculative one. The reality is that not every possible contingency can be protected against. Put simply, there are no guarantees as to how the events of a trial will unfold.”

He added: “The hypothetical risk that the Crown advances is an insufficient reason to grant an order removing counsel in these circumstances.”

The charges against the lawyer’s client, the one who will be called to testify as a witness, were likely to be dropped shortly but the Crown still argued the lawyer shouldn’t be in a position to cross-examine a former client.

That argument is “even more speculative,” Nordheimer said, adding it’s unknown what the witness will say when he is called to testify. As the witness is a friend of the defendant, there’s a good chance his statements will be favourable to the defence, removing the need to cross-examine him.

In the event the defence must cross-examine the witness, Craig rather than MacDonald could question him, Nordheimer added. MacDonald and Craig are co-counsel on the murder charge but they are from different law firms and don’t share office space. In addition, the client waived any prohibition on any use of confidential information he may have provided to MacDonald.

“This case underscores the very significant right to counsel of choice,” says criminal lawyer David Cohn. “That right should not be taken away unless it is contrary to the public interest of the administration of justice or contrary to the basic principles of fundamental fairness.”

The bright-line rule, established by the Supreme Court of Canada in Canadian National Railway Co. v. McKercher LLP, comes into play whenever there’s concurrent representation, adds Cohn. In this case, there was nothing to suggest the witness and the accused had adverse interests, he says.

Nordheimer decided “quite correctly” on a quandary that’s not at all uncommon for criminal lawyers, Cohn says.

“Clients are referred to counsel by existing or former clients. As luck, or I should say bad luck, may have it, somewhere down the road a former or present client may be a potential witness for or against a present client.”

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