



WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order restricting publication in this
    proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or
    (9) or 486.6(1) or (2) of the
Criminal Code
shall continue. These sections of the
Criminal
    Code
provide:

486.5 (1)     Unless
    an order is made under section 486.4, on application of the prosecutor in
    respect of a victim or a witness, or on application of a victim or a witness, a
    judge or justice may make an order directing that any information that could
    identify the victim or witness shall not be published in any document or
    broadcast or transmitted in any way if the judge or justice is of the opinion that
    the order is in the interest of the proper administration of justice.

(2)     On
    application of the prosecutor in respect of a justice system participant who is
    involved in proceedings in respect of an offence referred to in subsection (2.1),
    or on application of such a justice system participant, a judge or justice may
    make an order directing that any information that could identify the justice
    system participant shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is satisfied that the order is in
    the interest of the proper administration of justice.

(2.1)
    The offences for the purposes of subsection (2) are

(a)
    an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a
    serious offence committed for the benefit of, at the direction of, or in
    association with, a criminal organization;

(b) a
    terrorism offence;

(c)
    an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security
    of Information Act
; or

(d)
    an offence under subsection 21(1) or section 23 of the
Security of
    Information Act
that is committed in relation to an offence referred to in
    paragraph (c).

(3)     An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice if it is not the
    purpose of the disclosure to make the information known in the community.

(4)     An applicant for an order
    shall

(a)
    apply in writing to the presiding judge or justice or, if the judge or justice
    has not been determined, to a judge of a superior court of criminal
    jurisdiction in the judicial district where the proceedings will take place;
    and

(b)
    provide notice of the application to the prosecutor, the accused and any other
    person affected by the order that the judge or justice specifies.

(5)     An
    applicant for an order shall set out the grounds on which the applicant relies
    to establish that the order is necessary for the proper administration of
    justice.

(6)     The
    judge or justice may hold a hearing to determine whether an order should be
    made, and the hearing may be in private.

(7)     In
    determining whether to make an order, the judge or justice shall consider

(a)
    the right to a fair and public hearing;

(b)
    whether there is a real and substantial risk that the victim, witness or
    justice system participant would suffer harm if their identity were disclosed;

(c)
    whether the victim, witness or justice system participant needs the order for
    their security or to protect them from intimidation or retaliation;

(d)
    societys interest in encouraging the reporting of offences and the
    participation of victims, witnesses and justice system participants in the
    criminal justice process;

(e)
    whether effective alternatives are available to protect the identity of the
    victim, witness or justice system participant;

(f)
    the salutary and deleterious effects of the proposed order;

(g)
    the impact of the proposed order on the freedom of
expression
of those affected by it; and

(h)
    any other factor that the judge or justice considers relevant.

(8)     An
    order may be subject to any conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a)
    the contents of an application;

(b)
    any evidence taken, information given or submissions made at a hearing under
    subsection (6); or

(c)
    any other information that could identify the person to whom the application
    relates as a victim, witness or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c.
    13, s. 19

486.6 (1) 
    Every person who fails to comply with an order made under
    subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence
    punishable on summary conviction.

(2)     For
    greater certainty, an order referred to in subsection (1) applies to
    prohibit, in relation to proceedings taken against any person who fails to
    comply with the order, the publication in any document or the broadcasting or
    transmission in any way of information that could identify a victim, witness or
    justice system participant whose identity is protected by the order. 2005, c.
    32, s.  15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gregson, 2021 ONCA 685

DATE: 20211007

DOCKET: C55241 & C62290

Watt, Benotto and Harvison Young
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Gregson

Appellant

Michael Lacy and Bryan Badali, for the
    appellant

Alexander Alvaro, for the respondent

Heard: May 18, 2021 by video conference

On appeal
    from the conviction entered and the sentence imposed on March 13, 2012 by
    Justice Douglas J.A. Rutherford of the Superior Court of Justice.

Harvison Young J.A.
:

[1]

The appellant Kevin Gregson was convicted of the first degree murder of
    a police officer and robbery. The sole issue on appeal is whether this court
    should quash the convictions and order a new trial on the basis that his
    counsel at trial, Craig Fleming, breached the duty of loyalty owed to his
    client. In essence, the appellant argues that Mr. Fleming was acting as
amicus curiae
rather than as defence counsel acting in
    the interests of the appellant, that he undermined the appellants defence, and
    that his conduct effectively deprived the appellant of counsel at trial. The
    appellant points to a number of instances that illustrate this. The appellant
    argues that Mr. Flemings conduct prior to the trial went beyond mere
    ineffective assistance of counsel and, for that reason, the appellant does not
    have to show that Mr. Flemings conduct could have affected the verdict in the
    case.

[2]

For the following reasons, I would dismiss the appeal. While a number of
    Mr. Flemings actions were misguided and inadvisable, Mr. Fleming cannot be
    said to have breached his duty of loyalty to his client according to the
    applicable law. At its highest, this may have been a case of ineffective
    assistance of counsel. However, an appeal based on ineffective assistance could
    not have succeeded because Mr. Flemings actions cannot be said to have had any
    effect on the verdict.

A.

Background facts

(1)

The Offence

[3]

It is common ground that the appellant is guilty of at least
    manslaughter. It is also common ground that he was a difficult client. As will
    be discussed below, Mr. Fleming agreed to take on the case after the trial
    judge acceded to the appellants former lawyers request to be removed from the
    record a few weeks before the start of the trial.

[4]

There is no doubt about what happened on the night of December 28, 2009
    and the early morning hours of December 29, 2009. Mr. Gregsons life had been
    coming apart. A few years earlier, he had been suspended with pay from his job
    as an RCMP officer as a result of a number of incidents. In November 2009, the
    final decision was that the appellant either resign or be discharged, and the
    appellant learned that his pay had stopped and that he had been overpaid for a
    few months and owed money to the RCMP, so financial concerns were added to his
    stressors. In early December, the discharge order came into effect. He had been
    preoccupied, even obsessed, with getting his job back. He had also been accused
    of sexual assault on December 28. This distressed him even more as he believed
    that this accusation would ruin his reputation and any chance he had of
    clearing himself with the RCMP.

[5]

According to the appellant, in the evening of December 28, he decided to
    kill himself, so he cut his own throat, passed out, and then woke up. After
    that, he decided to steal a car, find a police officer, take their gun, and go
    home and shoot himself. He obtained a car by threatening a young couple with what
    appeared to be a gun. After driving around and not finding a police officer, he
    went home, had a snack, washed his clothes, and then decided to go to the
    Ottawa Civic Hospital where he knew there were often police cars and officers.
    He was wearing two bulletproof vests and carried handcuffs, a BB gun, and two
    knives. His evidence at trial was that he did not want to die when he
    confronted a police officer as he wanted to be able to die in his sweet spot
    on his couch at home.

[6]

Constable Czapnik was in his squad car doing paperwork outside the
    Ottawa Civic Hospital at around 4:30 a.m. on December 29. Four paramedics saw a
    vehicle pull up and Mr. Gregson get out of the car and approach the police car
    with something in his hand. Constable Czapnik exited his vehicle and an
    altercation ensued. The paramedics rushed to help and saw the appellant
    straddling the officer with his right hand going up and down, making short,
    little punches. One of the paramedics pulled the appellant off the officer and
    the appellants arm came up holding a knife. Another paramedic managed to stomp
    or kick the knife out of Mr. Gregsons hand. Despite immediate medical
    assistance, the officer succumbed to his injuries a short time later. He had
    suffered a number of wounds, including lacerations that cut his left-side
    jugular vein, vagus nerve, and carotid artery.

[7]

According to the appellants evidence at trial, when he got to the
    hospital and saw a police car, he approached, pointed his BB gun, opened his door,
    and told Constable Czapnik to get out. The appellant then ordered him to get
    on his knees and to put his hands up. Constable Czapnik complied initially but
    then attempted to pull his gun from his holster, at which point the appellant
    threw down his gun, jumped on him, and tried to get his gun. The officer
    punched the appellant in the head, and the appellant just reacted and stated
    that I stabbed him because he hit me in the head and I reacted. The appellant
    said he remembered stabbing the officer only twice, although the officer
    received more than two stab injuries. He attributed his reaction to training
    and instinct, stating that he did not intend to kill the officer.

[8]

The appellant was arrested at the scene. He was eager to talk and made
    several spontaneous statements, including Im the one who car jacked two
    people earlier today, and I came here looking for a fight. You city cops are
    tough. He told one paramedic that he had tried to cut his own jugular veins earlier
    that day but they had clotted too quickly, and stated to another that [i]t
    didnt have to end this way, all he had to do was give me his gun. When a
    nurse at the hospital asked if he knew why he was there, he said [b]ecause I
    killed a cop.

[9]

The appellant spoke to counsel while at the hospital and again at the
    police station. While he was in the cells at the police station, he asked
    whether the incident had been in the news and what the maximum penalty was for
    manslaughter. In a videotaped police interview on December 29, 2009, he told
    officers that he had hydrocephalus and colloid cysts which made him more
    aggressive. While he admitted to killing the officer, he was not prepared to
    call it murder. In short, the only issue for trial was
mens
    rea
and whether there was any basis for an argument of diminished
    capacity.

[10]

Three forensic psychiatric assessments were completed for the
    appellant in 2010-2011 after the incident. None found a basis for a defence of
    not criminally responsible due to mental disorder. The appellants defence
    counsel obtained one of these assessments from Dr. Bradford, dated September
    10, 2011. Dr. Bradford concluded that the appellant was not psychotic prior to,
    during, or subsequent to the incident, and the conditions he suffered from
    would not affect his ability to appreciate the nature and quality of his
    actions or that they were wrong. Dr. Bradford did however also conclude that
    the appellant suffered from colloid cysts and that they caused persistent
    personality disturbance and could have had other psychiatric manifestations.
    After reviewing Dr. Bradfords 2011 report, Dr. Sinclair, the appellants
    treating neurosurgeon, rejected Dr. Bradfords diagnosis of colloid cysts based
    on the appellants brain imaging studies and stated that Dr. Bradfords
    contention that the appellants personality abnormalities were related to
    colloid cysts was not plausible. An expert in diagnostic neuroradiology called
    by the Crown, Dr. Kingstone, also testified at trial that the appellant did not
    have colloid cysts.

[11]

The appellant did have an episode of hydrocephalus in 2006, as a
    result of which a shunt was surgically inserted to drain the fluid from his
    brain. Dr. Sinclair testified at the trial, opining that the appellant had
    atypical type 3 perivascular spaces in his brain, also called Virchow-Robin
    spaces, but that the appellants medical condition would not have impaired his
    ability to think clearly or make decisions on December 29, 2009.

[12]

The
    defence did not call Dr. Bradford at trial, having concluded that his opinions
    were not favourable to the appellant. It is clear that there was no expert
    evidence that could have supported an NCR defence, and that no diminished
    capacity defence could have succeeded. The reports also diagnosed narcissistic personality
    disorder with antisocial features. While this would not have supported a
    diminished capacity defence, it does tend to confirm what was already clear
    from the record: the appellant was a difficult person and client, and thought
    he knew best.

(2)

Mr. Flemings conduct

[13]

The appellant introduces fresh evidence on
    appeal with the consent of the respondent. This fresh evidence outlines the
    allegedly objectionable aspects of Mr. Flemings conduct, prior to the trial
    proper, that the appellant relies on to demonstrate a breach of the duty of
    loyalty. At the time that Mr. Fleming was retained by the appellant, he was a
    staff lawyer working for Legal Aid Ontario (LAO). After the appellants
    former lawyer had been removed from the record, it was difficult to find a
    lawyer willing to take the case at such short notice, and LAO proposed that one
    of their staff, Mr. Fleming, could represent the appellant and take the trial
    without much delay.

[14]

Mr. Flemings unusual conduct in the course of this case forms the
    basis for the appellants breach of loyalty claim, and four particular
    instances will be discussed further below. Some points on the chronology of
    events leading up to the trial will place Mr. Flemings conduct in context and highlight
    the particular conduct that the appellant points to:

·

October 17, 2011: The appellants former counsel sought to be
    removed and was removed from the record due to a violent outburst from the
    appellant. Prior to this, the appellants counsel and Crown had reached a
    substantial level of agreement on possible evidentiary issues to be addressed
    in the course of pre-trial motions.

·

October 26, 2011: Before the court, the Crown brought up the
    status of agreements regarding the resolution of pre-trial motions. Mr. Gregson
    said no agreements were reached on pre-trial motions. Mr. Gregson also said he
    was willing to have an LAO practitioner assigned, saying [l]ets just have Mr.
    Fleming.

·

October 29, 2011: Mr. Fleming met with Mr. Gregson for the first
    time.

·

November 1, 2011: Mr. Fleming was formally placed on the record
    as counsel for the appellant. The appellant now apparently consented to the
    admissibility of almost all controversial evidence. In the following weeks, Mr.
    Fleming drafted written instructions for Mr. Gregson to sign.

·

December 16, 2011: Mr. Fleming sent the appellants draft
    instructions to the Crown for review.

·

January 18, 2012: The appellant suddenly reversed his
    instructions and wanted to contest everything he previously consented to. He wanted
    to wage war with the Crown. Mr. Fleming wrote to the Crown about Mr.
    Gregsons significant volte-face the next day, saying I cannot allow any
    failure to respect his instructions to open an appeal door.

·

January 20, 2012: Mr. Fleming wrote to Dr. Bradford seeking an
    additional opinion on diminished capacity and non-insane automatism as a result
    of the appellants change in instructions.

·

January 26, 2012: During an appearance at court, it was revealed
    that the appellant reversed his instructions again, now conceding everything
    except the voluntariness and admissibility of his videotaped confession. Mr.
    Fleming and Crown counsel went through the proposed agreements and admissions.
    Mr. Fleming then consulted Mr. Gregson, and the appellant did not object to the
    positions discussed by counsel.

·

January 27, 2012: Mr. Fleming wrote to Dr. Bradford seeking an
    additional opinion on operating mind. In his letter, Mr. Fleming stated that
    [i]t would be of great assistance to be able to provide Mr. Gregson with your
    conclusive explanation that he had an operating mind.

·

February 7, 2012: Mr. Fleming wrote an email to the Crown
    regarding operating mind and voluntariness, stating that he was quite openly
    passing the buck to Mr. Justice Rutherford to provide a decision, so that the
    Court of Appeal cannot criticize my failure to do so, by awarding Gregson a new
    kick based on my alleged incompetence, or his obstinacy.

·

February 8-9, 2012: The evidence for the
voir
    dire
on the voluntariness of the videotaped confession was heard.

·

February 13, 2012: Mr. Fleming wrote to the Crown asking to speak
    with Dr. Sinclair in the presence of Crown counsel. Mr. Fleming mentioned
    consulting with a neurologist who suggested that atypical type 3 Virchow-Robin
    spaces could result in symptomatic problems of a psychological order. Mr.
    Fleming needed that comfort of Dr. Sinclair being able to say clearly that he
    did not observe any such psychological deficits in Mr. Gregson and the
    comfort  that Dr. Sinclair had in fact turned his mind to the rare diagnostic
    possibility of psychological trauma, and had specifically discounted this. Mr.
    Fleming expressed his belief that Dr. Sinclair is best-positioned and
    well-qualified to close this particular door. Mr. Fleming also said [f]inally,
    my aim is to make sure this trial does not take any longer than necessary. Mr.
    Fleming noted that he did not anticipate that he would receive any supporting
    expert opinions for diminished capacity or automatism and that he would likely
    be unable to make these arguments.

·

February 15, 2012: Mr. Fleming sent a draft factum on
    voluntariness to the Crown and suggested that he go first and concede
    admissibility of all, to avert possible problems with Mr. Gregson.

·

February 21, 2012: Counsel provided submissions on voluntariness,
    and the confession was declared to be admissible.

·

February 27, 2012: The trial proper began with jury selection.

·

March 13, 2012: The jury returned guilty verdicts for first
    degree murder and robbery.

(3)

Investigation after trial

[15]

A
    limited s. 684 appointment under the
Criminal Code
,
    R.S.C. 1985, c. C-46, was made to determine whether there was merit to an
    appeal of the murder conviction and whether an application should be made for a
    full s. 684 appointment. Ms. Apple Newton-Smith, then Mr. Gregsons appellate
    counsel, reviewed the trial record and, in March 2015, communicated to Mr.
    Fleming that there were concerns with respect to his representation of the
    appellant and the appearance that he was not advocating for the appellants
    interests. She referred to some of the appellants correspondence with the
    Crown and Dr. Bradford and Mr. Flemings factum on voluntariness.
In the fresh evidence before this court, there is a summary of Mr.
    Flemings responses explaining his conduct and his work on the case.

[16]

LAO
    engaged Mr. Philip Campbell to advise on whether effective and ethical legal
    services were provided to the appellant by Mr. Fleming. In a report dated
    October 28, 2015, Mr. Campbell provided a thorough review of the circumstances
    of the case, the impugned conduct and correspondence, and Mr. Flemings
    explanations. Mr. Campbell believed that there is no reasonable possibility
    that an allegation of [ineffective assistance of counsel], in its usual form,
    could succeed on an appeal by Mr. Gregson
. However, Mr.
    Campbell also observed that an accused is entitled to a lawyer who is loyal to
    the interests of the accused and if the appellant could establish that Mr.
    Fleming was indifferent to or actively advocating against his interests, there
    would be a miscarriage of justice, even if it could not be established that a
    lawyer vigorously defending his interests could have achieved a different
    result.

[17]

After
    Mr. Campbells report, it came to light that Mr. Fleming had lied about being
    an RCMP officer when he first met the appellant. He had also lied when he
    explained his February 13, 2012 letter to the Crown in response to Ms.
    Newton-Smiths concerns. He had said that he had consulted his daughter, who
    was a neurosurgeon. It turned out that Mr. Fleming does not have a daughter.
Mr. Fleming was cross-examined by appellate counsel in 2019 on his
    conduct of the trial. He has retired since the trial. He now suffers from
    cognitive deficits, as a result of which his memory of the events is extremely
    limited.

B.

Issues on appeal

[18]

The appellant claims that Mr. Fleming did not
    act with undivided loyalty such that the appellant did not have a lawyer
    looking after his interests. He insists that this is not a claim of ineffective
    assistance of counsel in the ordinary sense, but a claim of denial of counsel
    altogether. He compares this case to
R. v. Al-Enzi
, 2014 ONCA 569, 121
    O.R. (3d) 583, where this court held that a trial judges denial of a severance
    or mistrial produced a miscarriage of justice for Mr. Al-Enzi, whose counsel
    withdrew in the middle of trial, because while an
amicus
was appointed
    an
amicus
was not an adequate substitute for defence counsel. The
    appellant asserts that Mr. Fleming viewed himself as
amicus
and Mr.
    Flemings conduct similarly deprived him of counsel, implicated the integrity
    of the administration of justice, compromised the appearance of fairness, and
    resulted in a miscarriage of justice. He argues that the verdict cannot be
    allowed to stand regardless of the strength of the Crowns case, the absence of
    prejudice, or the inevitability of the verdict.

[19]

The appellant points to four particular
    instances which he says illustrate a breach of Mr. Flemings duty to his client:

1.

Mr. Fleming lied to gain the appellants trust
    so that the appellant would retain him;

2.

Mr. Fleming represented to the appellant that he
    would contest the voluntariness of certain admissions and statements, but he
    knew and communicated to Crown counsel that this argument would not succeed
    without advising the appellant about the legal merits;

3.

Mr. Fleming misunderstood his role and
    improperly shared defence trial strategy and the weaknesses of defence
    arguments with Crown counsel; and

4.

Mr. Fleming lied about having consulted with his
    own expert with respect to diminished capacity, which was the one possible
    defence the appellant might have had at trial.

[20]

The respondent takes the position that, whatever
    Mr. Flemings failings as counsel, he was not motivated by a desire to sell
    out his client and acted at all times with his best interests in mind, even if
    some of his actions were inadvisable or misguided. The record, including the
    fresh evidence filed on this appeal, indicates that Mr. Fleming was doing his
    best for Mr. Gregson in very difficult circumstances.

C.

Discussion

(1)

The duty
    of loyalty

[21]

Despite the appellants broad framing of the
    appeal as a general miscarriage of justice issue, properly understood, the
    appellants argument is that Mr. Fleming breached his duty of loyalty to the
    appellant.

[22]

The duty of loyalty owed by a lawyer to their
    client is undoubtedly a foundational principle in the adversarial system. As
    explained in
R. v. Neil
, 2002 SCC 70, [2002] 3 S.C.R. 631, at para.
    12, [u]nless a litigant is assured of the undivided loyalty of the lawyer,
    neither the public nor the litigant will have confidence that the legal system,
    which may appear to them to be a hostile and hideously complicated environment,
    is a reliable and trustworthy means of resolving their disputes and
    controversies. The principle of the duty of loyalty endures because it is
    essential to the integrity of the administration of justice: at para. 12. It
    consists of several dimensions, including a duty not to disclose confidential
    information, a duty to avoid conflicting interests, a duty of commitment to the
    clients cause or zealous representation, and a duty of candour with the client
    on matters relevant to the retainer: at paras. 18-19.

[23]

That said, the duty is not unlimited. Lord Reids
    remarks in
Rondel v. Worsley
, [1969] 1 A.C. 191 (U.K. H.L.), at pp.
    227-28, accepted by this court in
R. v. Samra
(1998), 129 C.C.C. (3d)
    144 (C.A.), at para. 64, illustrate this point:

Every counsel has
    a duty to his client fearlessly to raise every issue, advance every argument,
    and ask every question, however distasteful, which he thinks will help his
    client's case.
But, as an officer of the court concerned
    in the administration of justice, he has an overriding duty to the court, to
    the standards of his profession, and to the public, which may and often does
    lead to a conflict with his client's wishes or with what the client thinks are
    his personal interests
. Counsel must not mislead the court, he must not
    lend himself to casting aspersions on the other party or witnesses for which
    there is no sufficient basis in the information in his possession, he must not
    withhold authorities or documents which may tell against his clients but which
    the law or the standards of his profession require him to produce. And by so
    acting he may well incur the displeasure or worse of his client so that if the
    case is lost, his client would or might seek legal redress if that were open to
    him. [Emphasis added.]

[24]

Allan C. Hutchinson, in his textbook
Legal
    Ethics and Professional Responsibility
, 2nd ed. (Toronto: Irwin Law,
    2006), at pp. 106-7, similarly explains that there are limits to lawyers
    obligations to place their clients interests ahead of all others. One of the
    primary constraints is a lawyers duty to the courts.

[25]

It is also useful to remember that the concepts
    of ineffective assistance and disloyalty cannot be conflated. A breach of the
    duty of loyalty does not occur whenever a clients interests are damaged by a
    lawyers actions. A lawyer acting with intent to further a clients interests
    sometimes can, by incompetence, damage those interests. Such a lawyer has not
    breached the duty of loyalty. Otherwise, every incompetent act would be an act
    of disloyalty.

[26]

The existing test for whether there has been a breach of loyalty
    owed by a lawyer to their client, when raised for the first time on appeal, may
    be stated as follows. First, there must have been an actual conflict of
    interest between the respective interests represented by counsel and, second, as
    a result of that conflict, there must have been some impairment of counsels
    ability to represent the interests of the appellant:
R. v. W.(W.)
(1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at p. 237;
Neil
, at para. 39;
    and
R. v. Silvini
(1991), 68 C.C.C. (3d) 251 (Ont. C.A.), at pp.
    258-59.

[27]

As the Supreme Court accepted in
Neil
,
    a conflict is 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: at para. 31. Where the allegation of a conflict of interest is
    raised for the first time on appeal, the court must be concerned with actual
    conflicts of interest, not just potential or possible conflicts, and whether
    counsels representation was in fact compromised in such a way as to result in
    a miscarriage of justice:
W.(W.)
, at pp. 238-39.

[28]

This court noted in
Samra
that the
    problem of conflict of interest has usually arisen because counsel has been
    retained to act for a client opposed in interest to the former client: at para.
    19. In the context of joint representation of co-accused, an actual conflict
    exists when a course of conduct dictated by the best interest of one accused
    would, if followed, be inconsistent with the best interests of the co-accused:
W.(W.)
,
    at p. 239.

[29]

In
Samra
, the appellant alleged that a
    miscarriage of justice had occurred when the appointed
amicus
, who had
    formerly been the appellants defence counsel for the same matter, had
    disclosed confidential information when he clarified something the appellants
    new counsel had said. This court noted that this was the only time an actual
    conflict of interest might have arisen and where possibly confidential
    information was disclosed, but even so, there was no adverse effect on the
    appellants defence as a result of that conflict. As such, while it was not
    necessary to decide whether an actual conflict existed, this court doubted, at
    para. 63, that there was a conflict:

It is not unusual
    that counsel may find themselves in a conflict between their duty to the client
    and their duty to the court. It has never been suggested that when such a
    conflict arises counsel is always disqualified from continuing to act in the
    case.

[30]

If the two-part test is satisfied, the court may
    order a new trial:
Neil
, at para. 40.

(2)

Did Mr. Fleming breach his duty of loyalty to
    the appellant?

[31]

In my view, Mr. Fleming did not breach his duty
    of loyalty to the appellant. At the outset, it is important to emphasize the
    circumstances that form the context of Mr. Flemings actions. Mr. Fleming, a
    staff lawyer for LAO, agreed to represent an accused on the eve of trial in a
    notorious murder of a police officer. The Crown case was strong. The only, and
    faint, hope was that some aspect of diminished capacity could result in a
    verdict of manslaughter. The accused was not likely to be (and was not in fact)
    a sympathetic witness; he insisted on testifying, and it would have been
    obvious that he would not be helping his cause. Mr. Fleming was in an
    unenviable position.

[32]

That said, Mr. Fleming was not in a position of
    conflict. While he clearly understood that his obligation to his client had to
    be tempered by his duty to the administration of justice and he made some
    decisions which were not advisable, these cannot be understood as arising from
    any conflicting loyalty. The appellant points to Mr. Flemings statements and
    conduct and asks this court to infer that Mr. Fleming believed he was a friend
    to the court and was preoccupied with trial expediency, saving LAO the expense
    of another lawyer, and avoiding an appeal. While Mr. Fleming may have been
    concerned with some of these considerations, he was not, however, placed in a position
    where he had to choose between the appellants best interests and his own best
    interests or the best interests of some other entity or client. Nor did he make
    any choices that preferred other interests over the appellants interests as a
    result of a conflict of interest. There were no actual conflicts that impaired
    Mr. Flemings representation of the appellant. This becomes apparent when
    considering the examples the appellant relies on as breaches of the lawyers
    duty of loyalty.

[33]

The first basis relied on by the appellant as
    illustrating divided loyalty is what he refers to as the foundational lie.
    When he first met with the appellant, Mr. Fleming told him that he had been a
    member of the RCMP and that he had killed two people in the course of duty. As
    the fresh evidence indicates, this was not true. Mr. Fleming was never a member
    of the RCMP. In his affidavit, the appellant states that this contributed to
    his confidence in Mr. Fleming as they shared an experience. For reasons that are
    difficult to understand, Mr. Fleming had previously told his former law partner
    the same fabrication. Whatever motivated Mr. Fleming to tell this story, the
    fact that it was not a fabrication communicated only to the appellant tends to
    undermine any suggestion that it can be explained by divided loyalties on the
    part of Mr. Fleming.

[34]

Obviously, the fabrication of ones biographical
    details in any situation is unethical and should not be condoned. This lie,
    however, was not foundational and cannot be understood to have essentially
    undermined the entire relationship as the appellant argues.

[35]

While the appellant says that the lie helped him
    feel comfortable with Mr. Fleming, he does not say that he would not otherwise
    have retained him.

[36]

Moreover, according to the law in Canada as set
    out above, even if such a lie were foundational to the relationship it would
    not constitute a breach of loyalty unless it was occasioned by a conflict and
    it impaired counsels representation: see
Neil
at para. 39. As Mr.
    Fleming had not actually taken any actions as counsel at the time of that
    conversation, there could be no impairment of his representation at that point.
    The only inference that can reasonably be drawn from the record is that he was
    concerned to develop a rapport with the appellant so that he could retain some
    control and prevent his client from losing his temper, changing instructions,
    and possibly firing him mid-trial, a situation Mr. Fleming understood would not
    be in the interests of the appellant or the administration of justice. While
    his means for effecting this were not laudable, they do not indicate disloyalty
    on the part of Mr. Fleming.

[37]

Second, the circumstances around the somewhat
    bizarre factum submitted by Mr. Fleming on the voluntariness
voir dire
further illustrate the same pattern: a misguided attempt to provide the best
    defence possible for the appellant in the face of a very strong Crown case and
    no evidence to support the appellants assertion that he did not have an
    operating mind when he made the statements as a result of his personal and
    medical circumstances as well as the blow to his head delivered by the officer.

[38]

When the appellant was insisting on pressing
    this argument in the voluntariness
voir dire
, Mr. Fleming wrote two
    additional letters to Dr. Bradford seeking input as to whether, in his view,
    the appellants condition could provide the basis for any limited capacity
    defence. His suggestion that he meet with Dr. Sinclair, the Crown expert, to
    see if there might be anything there before the trial was strange and unusual
    as well but it was clearly motivated by his wish to do all he could. The report
    from Dr. Bradford did not support an NCR defence but did leave a very small
    crack open for an argument that he might have had some sort of diminished
    capacity. However, the basis for such an argument was directly addressed and
    answered by Dr. Sinclairs report. In the end, Mr. Fleming did not obtain a
    response from Dr. Bradford before the
voir dire
,
and no meeting with Dr. Sinclair ever
    took place.

[39]

Mr. Flemings explanation for his voluntariness
    factum was that the appellants statements were going to be admitted no matter
    what. Mr. Fleming, facing that reality, was concerned that if he simply
    conceded, the appellant would be furious, discharge him, and that would derail
    matters, presumably in a way that would not help the appellant. While this was
    questionable, there is no basis to suggest that it was borne out of disloyalty.
    It was a function of Mr. Flemings manner of dealing with his client: build a
    respectful relationship and allow him to determine how his defence would be
    conducted.

[40]

Third, Mr. Flemings communications with the
    Crown in which he sent the written instructions he wanted his client to sign
    was unquestionably misguided and wrong. However, his explanations for this do
    not support a finding that it was driven by disloyalty to his client. Again,
    Mr. Fleming had a volatile client who was not taking his advice. He believed,
    rightly or wrongly, that the best he could do for him in the circumstances was
    to keep him calm with a view to preventing him from further instruction
    reversals and from ending up without a lawyer mid-trial. In addition, he
    expressed the view, in an email he sent to Mr. Delmar Doucette seeking advice
    with his instructions, that the documents were not, in substance, different
    from the admissions that the appellants former lawyer had filed when she was
    counsel on the agreement of Mr. Gregson.

[41]

Mr. Doucette subsequently advised Mr. Fleming
    that the communication of a clients instructions was never acceptable and
    should not have been attempted. In retrospect, Mr. Fleming acknowledged to Mr.
    Campbell that it had been an error for him to attempt to share the instructions
    with the Crown. It was not done as a result of any conflict on Mr. Flemings
    part.

[42]

Fourth, the appellant raises Mr. Flemings letter
    to the Crown dated February 13, 2012, in which Mr. Fleming claimed to have
    spoken with a consultant and raised the possibility of speaking with Dr.
    Sinclair. Mr. Fleming subsequently told Mr. Campbell that the consultant was
    his daughter, a neurosurgery resident in the United States. Mr. Fleming claimed
    she had agreed with Dr. Sinclairs report that the usual manifestations of the
    appellants conditions, if any, were impairments of balance, sight and hearing.
    She had added that there were possibilities of psychological brain function
    impairment and suggested that he ask someone such as Dr. Sinclair.

[43]

The fresh evidence indicates that Mr. Fleming
    does not have a daughter or any child or step-child who is a neurosurgeon.
    There is no way of knowing who, if anyone, Mr. Fleming spoke to or why he would
    have made this up. That said, there is again an absence of any conflict on his
    part that could provide a motive for him to lie. It is clear that he was trying
    to find support for some sort of limited capacity defence. The problem was that
    the evidence simply did not support it. In fact, the contemporaneous evidence
    shows that he was trying his best for his client and was personally discouraged
    by the prospects for his client. Mr. Campbell included his notes taken from his
    interview with François Dulude, a lawyer who had assisted Mr. Fleming during
    the trial. Mr. Dulude recalled that Mr. Fleming was discouraged by the lack of
    evidence that could support any diminished capacity defence and that Mr.
    Fleming worked hard on the case. Mr. Doucette, who Mr. Fleming consulted on the
    subject of drafting instructions, also expressed the view that Mr. Fleming, while
    seeing the case as largely hopeless, never threw in the towel. These
    observations do not support the suggestion that Mr. Fleming was in any sort of
    conflict.

[44]

In sum, the evidence on the conduct on the part
    of Mr. Fleming that the appellant points to does not reveal any actual conflict
    of interest that could ground a finding of a breach of the duty of loyalty,
    pursuant to the test in
Neil
. Given the difficult circumstances in
    which Mr. Fleming was acting, there were reasonable explanations for his at
    times misguided conduct, including that he was trying to pursue any possible
    defence available to the appellant and to seek concessions or favours from the
    Crown. In my view, Mr. Fleming was not acting out of divided loyalty, but was
    committed to his clients cause. As a result, the appellants sole ground of
    appeal on the breach of the duty of loyalty cannot succeed.

[45]

As the appeal from conviction is dismissed, it
    will not be necessary to address the sentence appeal, given the minimum
    sentence for first degree murder.

D.

Disposition

[46]

I would dismiss the appeal.

Released: October 7, 2021 D.W.

A. Harvison Young J.A.

I agree David Watt J.A.

I agree M.L. Benotto J.A.


