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BARRISTERS AND SOLICITORS - Disqualification or removal

Wednesday, March 24, 2021 @ 6:20 AM  

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Application by the Crown for an order removing Goldlist as counsel for NC. NC was jointly charged with two other young persons, SB and YF, with the second-degree murder of another young person, AH, who was shot to death on April 15, 2019. LW was a Crown witness. The Crown alleged that Goldlist was in a conflict of interest because she also acted on other unrelated charges for LW. The respondent took the position that there was no realistic risk of conflict of interest as LW was not an adverse witness to NC. LW had no evidence to give that was admissible against NC as LW only spoke to YF. In fact, the respondent contended that LW’s evidence was favourable to the respondent. The respondent also pointed to informed waivers, with independent legal advice, on the part of both LW and NC. Furthermore, the respondent suggested that as a precautionary matter, independent counsel could be arranged to conduct the cross-examination of LW, if that need ever developed.

HELD: Application dismissed. LW spoke by text message only with YF and never with NC. There was no evidence of any cell phone contact or social media contact between NC and LW either the day before or the day of the killing. The court had concerns about the admissibility of LW’s evidence at all. The court considered the informed waivers of both NC and LW, as well as the professed willingness on the part of Goldlist to utilize an independent counsel to cross-examine LW if it should develop that a realistic adversity in interest existed. The court was not satisfied that a realistic risk of adversity in interest was made out.

R. v. N.C., [2021] O.J. No. 433, Ontario Superior Court of Justice, C.S. Glithero J., February 1, 2021. Digest No. TLD-March222021006