Criminal Law

OCA provides guidance on counsel conflicts of interest in criminal law

By Jennifer Pritchett, Associate Editor

The Ontario Court of Appeal has ordered a new trial for a man after Toronto criminal lawyer Jill Presser argued his conviction for drug trafficking should be set aside because of ineffective trial counsel. The Lawyers Daily

“I am pleased for my client who endured a miscarriage of justice as a result of his trial lawyer's conflict of interest. The Court of Appeal has now put that right,” she tells

The court’s decision also provides “a good precedent for conflicts of interest in criminal cases, and, in particular, the timing of when a conflict crystallizes,” says Presser, principal of Presser Barristers.

This decision also underscores the importance of defence counsel to zealously defend criminally accused clients, she says.

The OCA says, "effective assistance by counsel requires that counsel be competent. However, effective assistance involves more; it also requires counsel to give the accused’s cause her undivided loyalty, which is a prerequisite to proper legal representation."

Presser took on the man's appeal matter after he was convicted in December 2013 for the possession of 11.2 grams of crack cocaine for the purpose of trafficking and received an 18-month conditional sentence.

Police arrested him after officers found two baggies containing the drug on the floor of a car in which he was a passenger in the back seat. During his trial, he testified he had no knowledge of the cocaine that police found in baggies at his feet in the car, says the OCA decision.

Two other individuals travelling in the vehicle were also arrested but the Crown later withdrew the charges against them, says the court file.

Unbeknownst to the accused charged with trafficking, his lawyer also represented the owner of the car on a number of different matters until January 2013.

The lawyer did not inform the man prior to his trial that she had been retained by the third party. He didn’t hear about it until after his conviction and he hired a new lawyer for his sentencing, says the court file.

In an affidavit, the accused summarized his concerns about his trial counsel by saying that, “Since the drugs were not mine and I was not aware of them, one real possibility is that they belonged to (the owner of the car)." This wasn’t something his lawyer explored, he says.

On appeal, Presser argued the man's trial counsel provided ineffective assistance that compromised the fairness of his trial because: one, the lawyer was in a conflict of interest by representing both the appellant and a potential third-party suspect, who owned the car in which the police found the cocaine; and two, she failed to advance a third-party suspect defence that pointed to the owner of the car or to the driver and other passengers in the vehicle.

The appellant argued the ineffective assistance caused a miscarriage of justice and asked that the conviction be quashed and a new trial ordered.

The Crown argued there was no conflict of interest because there was no viable third-party suspect defence in that the car owner's possession of cocaine charge had been dismissed by the appellant's trial.
But Justice David M. Brown, writing for the panel, rejected the Crown's argument. He held that the appellate court looks backward to when the appellant says the conflict arose, not just to the moment of the trial. In this case, that was in August 2012 when the car owner was charged with possession of cocaine.
The court says the “immediate, legal interests of the appellant” and (the car owner) were “directly adverse” by that time, putting the trial counsel in an “actual conflict of interest.”

The court held that conflict arose then because the car owner's charge for possession of cocaine meant there was an air of reality to the accused's third-party suspect defence.

"As well, the concurrent retainers created a substantial risk that (the defence counsel's) representation of the appellant would be materially and adversely affected," Brown writes. "They created conflicting pressures on (counsel's) judgment because of the divided loyalties created by her concurrent retainers. To use the vernacular: for (the lawyer) to investigate and advance a third-party suspect defence on behalf of the appellant, she would have to throw another client, (the car owner), 'under the bus.' Those circumstances created a real risk that (defence counsel) would 'soft peddle' her representation of the appellant to avoid prejudicing the interests of (the car owner) — a continuing, repeat client."

Brown also writes that before accepting a retainer from the car owner in August 2012, the lawyer was “required to fully disclose to both the appellant” and the car owner "the issues and risks associated with concurrent representation, secure their informed consent to concurrent representation, and reasonably conclude that she would be able to represent each client without adversely affecting the other.” She didn’t do that, he writes.

The court agreed that as a result of a lack of effective assistance by trial counsel because of her conflict of interest, a miscarriage of justice occurred.

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