



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. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)      two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)      In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or
    justice shall

(a)      at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)      on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)      In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)      An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. J.J., 2021 ONCA 788

DATE: 20211108

DOCKET: C64152

Paciocco, Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.J.

Appellant

Michael W. Lacy and Bryan Badali, for the appellant

Philippe G. Cowle, for the respondent

Heard: October 14, 2021 by video conference

On
    appeal from the conviction entered on February 22, 2017, with reasons reported
    at 2017 ONSC 445, by Justice Rick Leroy of the Superior Court of Justice,
    sitting without a jury.

Thorburn J.A.:

INTRODUCTION

[1]

The appellant was convicted following trial by judge alone of sexual
    assault and break and enter for the purpose of committing sexual assault. He
    was sentenced to three years in prison. He appeals his convictions and seeks an
    acquittal or a new trial pursuant to s. 686(5) of the
Criminal Code,
R.S.C.
    1985, c. C-46.

BACKGROUND

Interaction with the Complainant During the Party

[2]

The appellant attended a party for A.L., at the invitation of their
    mutual friend B.H. The party was at A.L.s residence, which he shared with the
    complainant.

[3]

The complainant testified that she and the appellant did not know each
    other and did not interact during the party. She testified that at the party,
    the appellant was wearing a black and white striped shirt.

[4]

She said she had consumed twelve bottles of beer and went to sleep while
    the appellant was still at the party. She got into bed with her clothing on.
    Her bedroom door was unlocked.

Appellants Entry into the Complainants Bedroom

[5]

A.L. testified that at the end of the party, he saw the appellant enter
    the complainants bedroom and shut the door. After 30 seconds, A.L. entered the
    bedroom and saw the appellant on top of the bed covers trying to spoon
    against the complainant who was under the bed covers. A.L. heard the complainant
    say, Help me and he pushed the appellant out of the room.

[6]

A.L. testified that the appellant told him he had ruined the appellants
    chance of having sex with the complainant.

Evidence Regarding the Incident in Question

[7]

The complainant testified that later that evening, she awoke to discover
    an intruder performing oral sex on her and then penetrating her, at which point
    she yelled. The intruder got off her, put on his trousers and left the
    residence. The complainant returned to sleep.

[8]

A.L. testified that he heard the complainant cry, Get the fuck out of
    my room, between 5:00 and 6:00 a.m., the morning after the party.

[9]

When the complainant awoke around 11:00 a.m., she noted that her
    clothing had been removed except for her tank top. She put on a pair of her
    pyjama bottoms that were lying on the floor.

[10]

The complainant testified that the pyjama bottoms on the floor had been
    left there from maybe the day before. She did not remember when she had last
    worn them. She testified that she was in the habit of doing her laundry on
    Sundays, so if she had washed them when she had last done the laundry, then it
    would have been six days before the assault. She couldnt remember if the
    pyjamas had been washed in that load.

The Complainants Identification of the Appellant as the
    Perpetrator

[11]

The complainant testified that it was only when A.L. asked her what she
    had been yelling about, that her memory of the sexual assault crystallized.

[12]

She told A.L. that she had been sexually assaulted and they went to
    B.H.s home, as he had invited the appellant to the party. The complainant said
    the intruder was wearing a black and white striped shirt and had dark hair.

[13]

They looked the appellant up on Facebook and she identified him as the
    perpetrator. The complainant reported the sexual assault to the police.

DNA Found on the Complainants External Genitalia and Pyjamas

[14]

A swab taken from the complainants external genitalia generated a
    single male DNA profile (Profile 1). The appellant could not be excluded as
    the source of that DNA.

[15]

A sample from the complainants pyjama bottoms generated a different
    male DNA profile (Profile 2). The appellant could be excluded as the source
    of that DNA.

[16]

The
biologist, who was qualified as an expert in
body
    fluid identification and forensic DNA analysis testing and interpretation of
    those results, opined that it was unlikely for a detectable level of DNA to be
    transferred from brief touching in the absence of bodily fluid, especially when
    touching smooth or non-porous surfaces.

Charges Laid

[17]

The appellant was charged with sexual assault (s. 271 of the
Criminal
    Code
) and breaking and entering for the purpose of committing an
    indictable offence (s. 348(1)(b) of the
Criminal Code
).

THE TRIAL JUDGES REASONS

[18]

The trial judge held that the central issue was
    identity, and there were three grounds that together, led him to conclude that
    the appellant was the perpetrator:

i.

The complainant identified the perpetrator as the man
    wearing the striped shirt at the party, and the complainant subsequently
    identified the appellant as the perpetrator by looking at his Facebook page;

ii.

Earlier in the evening, the appellant entered the
    complainants room without consent. He got onto the bed with the complainant.
    When he was sent out of the room by A.L., the appellant told A.L. he had ruined
    his chance to have sex with her. This was just hours before the alleged
    assault; and

iii.

The male
DNA
detected on the
    complainants external genitalia swab matched the appellants DNA and there was
    no evidence to support benign transfer.

[19]

The trial judge held that even if the alleged sexual assault
    and the appellants earlier act of entering her room without her consent were
    not parts of a single distinct event, the evidence of the appellants conduct in
    entering the room, including his statement to A.L., was admissible as similar fact
    evidence on the issues of identity, animus and motive because its probative
    value outweighed its prejudicial effect
.
While the appellants statement was hearsay, it was admissible
    under the admission exception.

[20]

During the trial, the appellants counsel disclosed to the trial judge
    that she had previously represented one of the investigating officers in this
    case, on an unrelated matter. Trial counsel confirmed to the trial judge that
    the appellant was aware of the conflict and consented to her proceeding. The
    officer did not permit trial counsel to disclose the nature of the prior
    representation but provided a waiver to allow trial counsel to cross-examine
    him.

THE ISSUES ON
APPEAL

[21]

This court may allow a conviction appeal where it is of the opinion that
    the verdict is unreasonable or cannot be supported by the evidence, there is
    found to be an error of law, or there has been a miscarriage of justice:
Criminal
    Code,
s. 686(1)(a).

[22]

The appellant raises the following grounds of appeal:

i.

The
    trial judge misapprehended the expert biologists findings with respect to
    Profile 1 by concluding that the male DNA profile on the complainants external
    genitalia was from a bodily substance not skin cells;

ii.

The trial judge imposed an onus on the appellant to prove a benign
    explanation for the presence of a male DNA profile (Profile 1) on the
    complainants genitalia from which the appellant could not be excluded;

iii.

The trial judge misapprehended the evidence by failing to consider that
    there was exculpatory evidence of another male DNA profile (Profile 2) on the
    complainants pyjama bottoms from which the appellant was excluded; and

iv.

The appellant was deprived of his right to counsel by the trial judges
    failure to address trial counsels conflict of interest. The appellant applied
    for leave to file fresh evidence to address this issue on appeal.

[23]

I will address each argument in turn.

ANALYSIS

The First Issue: Did the trial judge misapprehend the DNA evidence
    of Profile 1?

[24]

The appellant claims the trial judge misapprehended the DNA evidence by
    concluding that the male DNA profile generated from a swab of the complainants
    external genitalia (Profile 1) from which the appellant could not be excluded,
    was from a bodily substance including saliva or blood. This is incorrect as the
    expert opinion was that the DNA was from
skin cells
or a
    body fluid other than semen that includes but is not limited to saliva
 or
    blood (emphasis added).

[25]

Misapprehension of evidence may include a failure to consider evidence
    relevant to a material issue, a mistake as to the substance of the evidence, or
    a failure to give proper effect to evidence:
R. v. Morrissey
(1995), 22
    O.R. (3d) 514 (C.A.), at p. 538; see also
R. v. Stennett
, 2021 ONCA
    258, at para. 50.

[26]

When misapprehension of evidence is alleged, the court should first
    consider the reasonableness of the verdict, under s. 686(1)(a)(i):
Morrissey,
at p. 540;
Stennett,
at para. 51. If the verdict is not
    unreasonable, the court should determine whether a miscarriage of justice was
    occasioned, under s. 686(1)(a)(iii):
Morrissey,
at p. 540;
Stennett,
at para. 51.

[27]

The misapprehension will result in a miscarriage of justice when the
    trial judge misapprehends the substance of material parts of the evidence and
    the errors play an essential part not just in the narrative of the judgment
    but in the reasoning process resulting in a conviction:
R. v. Lohrer,
2004
    SCC 80,

[2004] 3 S.C.R. 732, at para. 2, citing
Morrissey
, at
    p. 540; see also
Stennett
, at para. 52. If there is no miscarriage of
    justice, the court should determine whether the misapprehension amounts to an
    error in law, under s. 686(1)(ii):
Morrissey,
at p. 540;
Stennett,
at para. 51.

[28]

There is no dispute that the trial judges characterization of DNA
    Profile 1 was important to his finding of guilt.

[29]

The expert testified that the swab from the
    complainants external genitalia identified a single male DNA profile, from
    which the appellant could not be excluded, and that DNA possibly derived from
    skin cells or a body fluid other than semen that includes, but is not limited
    to saliva or blood.

[30]

The appellant asserts that the trial judge erroneously suggested that
    when submissions were being made the critical question was how does the
    saliva-based DNA get onto [the complainants] genitals and that this error was
    a material misapprehension of the evidence.

[31]

The appellant is correct that the above statement made by the trial
    judge was incorrect as the DNA swab from the complainants external genitalia
    was not tested for saliva, given the limits of that testing. There was
    therefore no evidence that amylase (a protein found in saliva) was found on the
    DNA swab.

[32]

Amylase was only found on the pyjama bottoms from which Profile 2 was
    generated. The appellants DNA was excluded from Profile 2.

[33]

The appellants trial counsel made similar comments and the Crown did
    not correct them.

[34]

In his reasons for judgment however, the trial judge correctly
    interpreted the evidence relating to Profile 1. The trial judge held, at para.
    59, that:

The DNA swab that contained [the appellants] DNA derived
    from skin cells or a body fluid including, but not limited to saliva
. The
    biologists opinion was that she could not determine whether any blood or
    saliva present on the swab originated from [the complainant] or the male DNA
    donor. [Emphasis added.]

[35]

These statements in the reasons for judgment, accurately reflect the
    experts evidence that Profile 1 possibly originates from skin cells or a body
    fluid other than semen that includes, but is not limited to saliva and that,

In general terms if amylase is present on that swab, if we
    accept that amylase is detected if its a lower level it could be from saliva
    or other body fluids. And if theres a mixture of DNA then I would not be able
    to determine who the source of the body fluid is.

[36]

Moreover, the trial judge made no mention in his reasons for judgment of
    saliva-based DNA being located on the complainants external genitalia. On the
    contrary, every time the trial judge referenced the forensic evidence linking
    the appellant to the offence, he referred only to the accuseds DNA, [the
    appellants] DNA or the male DNA swabbed from the complainants external
    genitalia.

[37]

It is clear from the reasons for judgment that the trial judge
    understood that there was no way to know whether the DNA from Profile 1 taken
    from the complainants external genitalia was derived from skin cells or bodily
    fluid, including saliva or blood. The trial judges reasons are clear that his
    findings in relation to Profile 1 are not about the transfer of DNA from
    saliva; they are about DNA transfer generally.

[38]

In sum, while there was an instance of misapprehension of evidence
    regarding the nature of the DNA evidence of Profile 1 by the trial judge and
    the parties during submissions, that misapprehension was cured in the reasons
    for judgment. The trial judge did not misapprehend the evidence regarding the
    DNA evidence of Profile 1 in his reasons for judgment.

[39]

As such, I would dismiss the first ground of appeal.

The Second Issue: Did the trial judge err by imposing an onus on the
    appellant to provide a benign explanation for the presence of DNA on the
    complainants external genitalia?

[40]

The appellants theory at trial and on appeal is that the appellants
    DNA must have made its way to the complainants external genitalia by way of
    innocent transfer.

[41]

The appellant submits that the trial judge reversed the burden of proof,
    by suggesting that unless the appellant could establish an innocent explanation
    for the presence of DNA on the complainants genitalia, the only reasonable
    conclusion was that the presence of the appellants DNA was confirmation of the
    appellants identity as the perpetrator.

[42]

The appellant submits, as the trial judge noted, that the appellant is
    not required to provide an innocent explanation for the presence of his DNA.

[43]

The appellant relies on the Supreme Courts decision in
R. v.
    Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, which he says, supports his
    argument that the trial judge reversed the burden of proof.

[44]

In
Villaroman,
Cromwell J. held, at paras. 37-38:

When assessing circumstantial evidence, the trier of fact
    should consider other plausible theor[ies] and other reasonable
    possibilities which are inconsistent with guilt. I agree with the appellant
    that the Crown thus may need to negative these
reasonable
possibilities,
    but certainly does not need to negative every possible conjecture, no matter
    how irrational or fanciful, which might be consistent with the innocence of the
    accused. Other plausible theories or 
other reasonable possibilities
    must be based on logic and experience applied to the evidence or the absence of
    evidence, not on speculation
.

Of course, the line between a plausible theory and
    speculation is not always easy to draw. But the basic question is whether the
    circumstantial evidence, viewed logically and in light of human experience, is
    reasonably capable of supporting an inference other than that the accused is guilty.
    [Citations omitted; italics emphasis in original; underline emphasis added.]

[45]

Cromwell J. noted, at para. 42, citing
R. v. Dipnarine,
2014
    ABCA 328, 584 A.R. 138, at paras. 22-25, that the trier of fact should not act
    on alternative interpretations of the circumstances that are unreasonable, and
    that alternative inferences must be reasonable, not just possible.

[46]

As Cromwell J. explained in
Villaroman
, at para. 71, it
    is for the trier of fact to draw the line that separates reasonable doubt from
    speculation
and
determine whether the alternative
    inferences proposed by the appellant raised a reasonable doubt about guilt
.

[47]

A trial judges rejection of an alternative
    theory inconsistent with guilt does not necessarily mean that there was a
Villaroman
error; it may mean that there was no reasonable inference
    other than guilt, given the evidence or lack of evidence and in light of human
    experience and common sense:
R. v. S.B.1,
2018
    ONCA 807, 143 O.R. (3d) 81, at para. 138.

[48]

Deference is owed to a trial judges conclusion
    that there are no reasonable alternative inferences other than guilt:
S.B.1,
at para. 139. This court held, in
R. v. Loor,
2017 ONCA 696, at para. 22, [a]n appellate court is justified in
    interfering only if the trial judges conclusion that the evidence excluded any
    reasonable alternative was itself unreasonable.

[49]

In this case, the trial judge recognized that, given that the Crowns
    evidence was primarily circumstantial, the accused can only be found guilty
    where the guilt of the accused is the only reasonable conclusion to be drawn
    from the whole of the evidence.

[50]

He considered the evidence and the absence of evidence in light of human
    experience and rejected as speculative the theory that the presence of the
    appellants DNA on the complainants external genitalia was due to innocent
    transfer.

[51]

The trial judge relied on the following uncontroverted evidence adduced
    at trial:

i.

The
    complainant testified that she had not met the appellant before the evening in
    question. She had seen him at the party but had no interaction with him before
    retreating to her bedroom. She testified that she went to bed fully dressed;
    and

ii.

A.L. testified that when he entered the complainants bedroom 30 seconds
    after seeing the appellant enter the room, the complainant was under the covers
    and the appellant was beside her, over the covers, lying semi-prone. The
    appellant was about 10 cm from her and was not moving. He looked like he was
    trying to spoon or cuddle her except that she was lying on her back. A.L. did
    not recall seeing the appellant make any movements but could not remember where
    the appellants hands were.

[52]

The trial judge also considered the evidence of the expert who opined
    that:

i.

Skin-to-skin
    DNA transfer is possible, but DNA transfer occurs more readily when it is
    moist;

ii.

The expert did not have a high expectation of finding a detectable level
    of DNA from brief touching in the absence of bodily fluid;

iii.

The expert would not expect a significant transfer of DNA from the brief
    touching of an item, especially an item that is smooth or non-porous, for
    instance a table;

iv.

Urine is not a good source of DNA. The expert would not expect to be
    able to generate a DNA profile from a urine stain; and

v.

Although it is possible to transfer DNA via a chain of contact (i.e.
    transfer from person A to object, and then from object to person B), the more
    points of contact on the chain, the less DNA will be transferred to the person
    at the end of the chain.

[53]

The trial judge noted that his analysis was conducted on the basis of
    the evidence presented and that, as the trier of fact, he must rely on the
    evidence and cannot speculate.

[54]

He concluded that there was no evidence to support the appellants
    theory of innocent transfer of DNA that matched the appellants onto the
    complainants genitalia because,

Any innocent transfer had to have happened before [the
    complainant] exited the party. They were strangers. The closest they came to
    one another was they were in the same building. There was no contact between
    them during the party. I conclude that when [the complainant] retired [the
    appellants] DNA was not affixed to her genitals. AL observed [the appellant]
    on top of the covers and [the complainant] under the covers when he entered the
    room. She was unconscious. [The appellant] was trying to spoon [the
    complainant]. No kissing or other opportunity for exchange of bodily fluid is
    in evidence. That exchange happened in the blink of thirty seconds. There is no
    evidence of contact with her genitals or any part of her body in that
    encounter. The only depiction offered for the presence of [the appellants] DNA
    on [the complainants] genitals derives from [the complainant].

[55]

He therefore concluded that the only reasonable explanation for the
    presence of the appellants DNA on the complainants external genitalia was
    that the appellant committed the offence.

[56]

In so doing, the trial judge did not require the appellant to prove an
    innocent explanation for the presence of his DNA nor did he reverse the burden
    of proof.

[57]

On the contrary, the evidence adduced at trial supports the trial
    judges conclusion that there was no evidentiary basis to support a reasonable
    conclusion that the DNA in Profile 1 found on the complainants external
    genitalia could have been the result of benign transfer

[58]

As such, I would also dismiss this ground of appeal.

The Third issue: Did the trial judge err by failing to consider that
    the appellant was excluded as a source of the DNA found on the complainants
    pyjamas?

[59]

The appellant claims the trial judge misapprehended the evidence by
    failing to give effect to the evidence from the pyjama bottoms. The appellant
    claims it was incumbent on the trial judge to rule out the possibility that
    Profile 2 was not the perpetrator, particularly given the evidence of the
    different methods of transfer rendering it just as likely that the donor of
    Profile 2 was the perpetrator.

[60]

I do not agree.

[61]

A trial judges reasons must be read as a whole, in the
    context of the evidence, the issues and the arguments at trial, together with
    an appreciation of the purposes or functions for which they are delivered:
R.
    v. Laboucan,
2010 SCC 12, [2010] 1 S.C.R. 397, at para.
    16, citing
R. v. R.E.M.,
2008 SCC 51, [2008] 3
    S.C.R. 3, at para. 16.

[62]

A trial judge is not required to expound on
    uncontroversial evidence, or detail his or her finding on each piece of
    evidence or controverted fact, so long as the findings linking the evidence to
    the verdict can be logically discerned:
R.E.M.,
at para. 20.

[63]

In this case,
the complainant testified that the
    pyjama bottoms on the floor had been left there from maybe the day before,
    she did not remember when she had last worn or washed them, and she likely last
    washed them at least six days before the assault.

[64]

Given that the complainant said she did not know when they were last
    worn or washed, there was nothing to connect the pyjama bottoms to this
    assault. (This is contrasted with the evidence of a single DNA profile (Profile
    1) on the complainants external genitalia which matched the appellants DNA.)

[65]

As such, the trial judge did not err by failing to discuss the DNA
    profile on the pyjama bottoms (Profile 2).

[66]

While the appellant was under no obligation to testify, in considering
    the reasonableness of the verdict, this court may infer from his failure to
    testify that he could not provide an innocent explanation for his conduct
    leading to the presence of a DNA match on the complainants genitalia. The
    appellants failure to provide an innocent explanation at trial undermines the
    alternative inferences he says were available on the evidence:
R. v.
    Ezechukwu
, 2020 ONCA 8, at para. 29; see also
R. v. Dell
(2005),
    194 C.C.C. (3d) 321 (Ont. C.A.), at para. 35;
R. v.

An
,
    2015 ONCA 799, at paras. 15-16; and
R. v.

Wu
, 2017
    ONCA 620, at para. 16.

[67]

For these reasons, I would dismiss this ground of appeal.

The Fourth Issue: Whether the fresh evidence should be admitted and
    whether trial counsel was in a conflict of interest

[68]

The appellant seeks leave to file fresh evidence and submits that the
    fresh evidence supports his claim that he was denied effective assistance of
    counsel as a result of his trial counsel being in a conflict of interest that
    was not properly resolved at trial. The Crown concedes that this court may
    consider the fresh evidence tendered by the appellant.

[69]

The test for conflict of interest on appeal is a) whether there was an
    actual conflict of interest between the respective interests represented by
    counsel, and b) whether counsels ability to effectively represent the
    interests of the appellant was impaired as a result of the conflict:
R. v.
    W. (W.)
(1995), 25 O.R. (3d) 161 (C.A.), at p. 173. If both criteria are
    established, then the appellant has been denied the right to make full answer
    and defence and a miscarriage of justice has occurred:
W. (W.),
at p.
    173. The focus is not on the appearance of conflict, but on whether counsels
    representation was in fact adversely affected:
W. (W.),
at p. 176.

[70]

In
R. v. Neil,
2002 SCC 70, [2002] 3 S.C.R. 631, at para. 29,
    Binnie J. writing for the court established a bright line rule preventing a
    lawyer or law firm from acting against a second client contrary in interest to
    an existing client without their consent:

The bright line is provided by the general rule that a lawyer
    may not represent one client whose interests are directly adverse to the
    immediate interests of another current client 
even if the two mandates
    are unrelated
 unless both clients consent after receiving full
    disclosure (and preferably independent legal advice), and the lawyer reasonably
    believes that he or she is able to represent each client without adversely
    affecting the other. [Emphasis in original.]

[71]

However, counsels duty to a former client is different. The Supreme
    Court in
Canadian National Railway Co. v. McKercher LLP
, 2013 SCC 39,
    [2013] 2 S.C.R. 649 held, at para. 23, that:

The law distinguishes between former clients and current
    clients. The lawyers main duty to a former client is to refrain from misusing
    confidential information. With respect to a current client, for whom
    representation is ongoing, the lawyer must neither misuse confidential
    information, nor place himself in a situation that jeopardizes effective
    representation.

[72]

If trial counsels representation of a client may be compromised due to
    a duty to a former client, counsel should advise the new client and obtain
    their consent:
R. v. Faudar,
2021 ONCA 226, 403 C.C.C. (3d) 43, at
    para. 62. If counsel believes that their duty to the former client will in fact
    compromise the new retainer, counsel should decline to act for the new client:
Faudar,
at para. 62.

[73]

In this case, the officer was a former client by the time of trial.
    Therefore, the bright line rule does not apply. The only concern was the
    possible misuse of confidential information. There is no suggestion that the
    appellants trial counsel misused confidential information in this case.

[74]

In any event, the appellant consented to have counsel continue to
    represent him after counsel informed him that she had previously represented an
    investigating officer in this case.

[75]

Trial counsel swore in her affidavit and testified in cross-examination
    on the affidavit in fresh evidence that she discussed the issue several times
    with the appellant. Trial counsel indicated that she communicated with the
    appellant in clear and simple language, as the appellants first language is
    not English. On a break during pretrial motions, she communicated with him with
    the assistance of the court interpreter.

[76]

The appellant in his affidavit in fresh evidence stated that he had no
    recollection of any of these conversations but acknowledged in
    cross-examination that it was possible the discussions had occurred. After
    these discussions, trial counsel reasonably believed she was able to continue
    acting for the appellant without adverse effect.

[77]

Further, I am not persuaded that trial counsels prior representation of
    the officer resulted in a conflict that compromised representation and impaired
    trial fairness: see
Faudar,
at para. 66.

[78]

On a review of the full trial record, it does not appear that trial
    counsel was torn by divided loyalty. Trial counsel cross-examined the officer
    on the fact that he interviewed A.L. and B.H. together at the same time.
    Although she did not cross-examine him as to whether the complainant was
    present during his interview of A.L. and B.H., she swore in her affidavit that
    this was an oversight on her part. In any event, the trial judge did not find
    the testimony of A.L. and B.H. determinative on its own of the appellants
    guilt. The trial judge noted, [t]he fact that AL and BH were interviewed
    together would be more of an issue if their evidence was contested or if their
    evidence was dispositive.

[79]

Counsel informed the trial judge that she had represented the officer on
    a completely unrelated matter, and that the officer and the appellant consented
    to trial counsel cross-examining the officer.

[80]

The trial judge held that he was not sure there was a conflict of
    interest but nonetheless asked trial counsel to obtain a waiver from the
    officer consenting to trial counsels cross-examination of him, which she did.
    The trial judge held that, Its a conflict if its a related matter and
    theres been a solicitor/client relation on that matter. But I dont know that
    a client owns the lawyer for all time on totally unrelated matters.

[81]

The Crown indicated that she was prepared to proceed to call the officer
    on the basis of the waiver, and on the basis of trial counsel advising on the
    record, [the appellant] is aware of the conflict and given that information
    hes still content that she proceed. Given the appellants consent, trial
    counsel cross-examined the officer.

[82]

The trial judge did not err in deciding to permit appellants counsel to
    continue to represent him on this matter. There was no actual conflict of
    interest that adversely affected trial fairness or resulted in a miscarriage of
    justice in this case. I would therefore dismiss this ground of appeal.

CONCLUSION

[83]

For the above reasons, the appeal is dismissed.

Released: November 8, 2021 David M. Paciocco J.A.

J.A. Thorburn J.A.

I agree. David M.
    Paciocco J.A.

I agree. I.V.B. Nordheimer J.A.



