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PROCEDURE - Trial judge’s duties

Monday, February 05, 2018 @ 11:27 AM  


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Appeal by the accused from his conviction for first degree murder. This was his second trial. The victim was the appellant’s wife. The case against the appellant was entirely circumstantial: no forensic evidence connected the accused to the murder. About six weeks before the trial, defence counsel brought an application to be removed from the record. According to trial counsel, despite assurances from the appellant, he was not paid for the first trial or for the proceedings leading up to the second trial. Counsel also advised the trial judge that because of the non-payment, he had been unable to take steps that should have been completed in preparation for the second trial. Trial counsel was candid in indicating that non-payment of his fees had created considerable strain in the relationship and made it impossible for him to properly prepare for the second trial. Trial counsel also repeatedly told the Court that the problems between he and the appellant had gone beyond those related to the non-payment of his fees and had reached the point where the client-solicitor relationship had broken down. The trial judge declined to make any inquiry of the appellant as to his position, fearing that the appellant might inadvertently disclose privileged conversations he had had with his lawyer. The trial judge required counsel to continue to act for the appellant during the second trial. In refusing counsel’s application to be removed from the record, the trial judge was critical of the affidavit filed by the legal assistant and observed that it dealt mostly with non-payment of fees and contained virtually no details on the ethical concerns or the reasons for loss of confidence. The trial judge refused to accept trial counsel’s representation that his request for removal from the record related to ethical problems and a breakdown in the client-solicitor relationship.

HELD: Appeal allowed. New trial ordered. The trial judge was obliged in the circumstances to remove trial counsel from the record. His ruling created the appearance of unfairness regardless of whether it actually negatively impacted the conduct of the defence. The trial judge wrongly focused on the content of the legal assistant’s affidavit. The trial judge should have instead focused on counsel’s representations. Trial counsel’s reference to ethical reasons did not relate exclusively to his concern that he might be in a conflict of interest with his client if he was required to sue his client for non-payment of fees. Trial counsel expressly indicated that the concerns went well beyond that and made it clear that there had been a complete breakdown in the client-solicitor relationship and that for that reason he could not continue to act for the appellant. The trial judge was required to accept that representation and to remove trial counsel from the record. When the trial judge required counsel to remain on the record, the appellant was left to be defended on a first-degree murder charge not by counsel fully and unequivocally committed to his defence, but by counsel who had announced to the Court that he could not, in good conscience, continue to act for the appellant.

R. v. Short, [2018] O.J. No. 5, Ontario Court of Appeal, A. Hoy A.C.J.O., D.H. Doherty and K.N. Feldman JJ.A., January 2, 2018. Digest No. TLD-Feb52018002