



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Baharloo, 2017 ONCA 362

DATE: 20170505

DOCKET: C59028

Gillese, van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Soheil Baharloo

Appellant

Jill R. Presser and Andrew Menchynski, for the appellant

Kathleen M. Healey, for the respondent

Heard: April 6, 2017

On appeal from the conviction entered
    on December 11, 2013 by Justice Peter B. Hockin of the Superior Court of Justice,
    sitting with a jury.

Brown J.A.:

I.

Overview

[1]

The
    appellant, Soheil Baharloo, raises a single issue on his appeal from conviction
    for the possession of 11.2 grams of crack cocaine for the purpose of
    trafficking  ineffective assistance by his trial counsel, Pamela Munn.

[2]

The
    appellant was a passenger in the rear seat of a Pontiac Grand Am when it was
    stopped by the police. Two baggies containing crack cocaine were found on the
    car floor at the appellants feet.

[3]

The
    appellant contends Munn provided ineffective assistance that compromised the
    fairness of his trial in four ways: (i) she was in a conflict of interest by
    representing both the appellant and a potential third party suspect, Tumbwembwe
    Banda, who owned the Grand Am in which the police found the cocaine; (ii) she
    failed to advance a third party suspect defence that pointed to Banda or to the
    driver and other passenger in the car, Krystal McKee and Evans Amponsah; (iii)
    she breached her duty of candour by failing to provide the appellant with material
    evidence, thereby impairing his ability to make key decisions for his defence;
    and (iv) she failed to afford the appellant the opportunity to elect his mode
    of trial. The appellant submits trial counsels ineffective assistance caused a
    miscarriage of justice. He asks that his conviction be set aside and a new
    trial ordered.

[4]

Both
    parties consent to the filing of fresh evidence on the issue of ineffective
    assistance. The appellant has provided his own affidavit, together with a short
    affidavit from a lawyer he briefly consulted prior to his trial. The respondent
    has filed an affidavit from trial counsel. Given the parties consent to the
    filing of fresh evidence, and since the appellant seeks to set aside his
    conviction as a miscarriage of justice on the basis of ineffective assistance
    of counsel, it is in the interests of justice to consider the fresh evidence:
R.
    v. W. (W.)
(1995), 25 O.R. (3d) 161 (C.A.), at pp. 169-70.

[5]

For
    the reasons that follow, I would allow the appeal. I conclude that a miscarriage
    of justice occurred as a result of the ineffective assistance Munn provided to
    the appellant due to her conflict of interest.

II.

The Evidence

The events giving rise to the charges

[6]

On
    the evening of October 16, 2011, the appellant was a passenger in the rear seat
    of a Grand Am driven by McKee. Her friend, Amponsah, occupied the passenger
    seat. The car was owned by McKees roommate, Banda.

[7]

The
    police stopped the car. One of the officers observed the appellant sitting in
    the rear seat. He saw three baggies on the car floor between the appellants
    feet. Two of the baggies appeared to contain crack cocaine. The officer ordered
    the appellant out of the car and arrested him for offences under the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19, as amended. The search of the
    appellant incident to his arrest revealed $300 in cash, a notebook with debt
    lists, rolling papers, a digital scale, and a second cell phone. The police
    determined two of the baggies contained crack cocaine.

[8]

The
    appellant was charged with the possession of cocaine for the purpose of
    trafficking. The police also charged McKee and Amponsah with the same offence.
    However, the Crown withdrew those charges following the preliminary inquiry
    after McKee and Amponsah provided statutory declarations stating the drugs did
    not belong to them.

The appellants preliminary inquiry and trial

[9]

The
    appellants preliminary inquiry was held in May 2012. His trial was held on
    December 9, 10 and 11, 2013, before a judge and jury. The Crown called the two
    arresting officers and one other officer. The appellant testified in his own
    defence. Neither of the other occupants of the car, McKee or Amponsah, was
    called as a witness.

[10]

The appellant
    testified that he lived in Toronto and had travelled to London for a weekend of
    partying with friends. He met McKee and Amponsah for the first time while
    partying on the Friday night.

[11]

On the Sunday
    morning, McKee and Amponsah arrived at the appellants hotel to drink with him.
    The appellant explained he was planning to take a taxi to Port Stanley to visit
    friends. According to the appellant, McKee and Amponsah offered to drive him to
    Port Stanley provided he paid for the gas. McKee told the appellant the car
    belonged to her roommate. The appellant accepted their offer.

[12]

The appellant
    testified that he sat in the back seat of the Grand Am. Given his height, it
    was a tight squeeze, so he sat in the middle rear seat. He recalled there was
    garbage on the car floor, but he did not look around to see exactly what was on
    the floor.

[13]

The appellant
    stated he had no knowledge about the crack cocaine found in the baggies at his
    feet. As to the items found during the search incident to arrest, he explained:
    the cell phone and debt list notebook found in his satchel actually belonged to
    a friend; he had withdrawn the cash from an ATM to cover his weekend expenses;
    and he used the digital scale for his personal consumption of marijuana.

[14]

Defence counsel
    gave a very short closing submission.

[15]

The jury
    convicted the appellant of possession of cocaine for the purpose of
    trafficking. The trial judge imposed an 18-month conditional sentence.

The information disclosed by the fresh evidence

[16]

While the appellant
    was in custody following his arrest, he retained Munn, whose name he had
    obtained from the lawyer for one of his co-accused. Munn secured bail for the
    appellant on October 24, 2011.

[17]

Unbeknownst to
    the appellant, at the time Munn was acting for Banda, the Grand Ams owner, on
    two breach of recognizance charges previously laid in April and May 2011. She
    continued to act as Bandas counsel until those charges were resolved in April
    2012.

[18]

The Crown
    disclosure provided to Munn in November 2011 revealed that Banda was the
    registered owner of the Grand Am. It is not disputed that Munn did not inform
    the appellant prior to his trial that Banda owned the Grand Am.

[19]

In March 2012,
    Banda was charged with further offences: theft; possession of stolen property;
    assault to resist arrest; public mischief; and escape lawful custody. Banda
    again retained Munn to represent her.

[20]

As mentioned, the
    appellants preliminary inquiry was held in May 2012.

[21]

In August 2012,
    Banda was charged with possession of cocaine. Once again, she retained Munn as
    her counsel. Banda terminated the retainer in January 2013. The charge against
    Banda ultimately was dismissed in November 2013, several weeks before the
    appellants trial.

[22]

In January 2013,
    Banda was charged with intent to mislead a peace officer and breach of
    recognizance. One condition she was alleged to have breached was to abstain
    from communicating with McKee, the driver of the Grand Am at the time of the
    appellants arrest. Banda retained Munn as her counsel, but terminated the
    retainer later that month.

[23]

Munn did not
    tell the appellant about any of her retainers by Banda.

[24]

The appellant stated
    Munn did not spend any time preparing him to testify for trial, simply telling
    him not to argue with the Crown on the witness stand. He complained Munns
    closing submissions were very perfunctory, bare bones.

[25]

The appellant stated
    that, after his conviction, he made inquiries about Munn. He learned she had
    acted for Banda. The appellant deposed: I was stunned. I had put so much faith
    and trust in Ms. Munn and she betrayed me. I felt absolutely devastated.

[26]

The appellant
    retained a new lawyer for his sentencing hearing, and Munn obtained an order
    removing her from the record. The appellant was sentenced on June 6, 2014.

[27]

The appellant
    deposed he had not been aware of Munns representation of Banda both before and
    during her representation of him. He stated that had Munn disclosed those
    retainers, he would not have hired her or would have discharged her
    immediately. In his affidavit, the appellant summarized his concerns in the
    following way:

In hindsight, perhaps much of what Ms. Munn did as my lawyer
    was not about representing or assisting me, but about protecting Ms. Banda. The
    car that contained drugs belonged to Ms. Banda and was being driven by her
    friend and roommate, Ms. McKee. Since the drugs were not mine and I was not
    aware of them, one real possibility is that they belonged to Ms. Banda. This is
    not something that Ms. Munn ever explored.

III.

The Governing Legal Principles

Effective assistance by counsel

[28]

An accused who
    is represented by counsel at trial is entitled to receive counsels effective
    assistance. The appellants main submission is that his trial counsel failed to
    do so in two distinct, but inter-related, ways: (i) Munn was in a conflict of
    interest by representing both the appellant and a potential third party
    suspect, Banda; and, (ii) Munn acted in an incompetent manner by failing to
    advance a third party suspect defence that pointed to Banda, McKee, or Amponsah
    as the owner of the drugs found by the police.

[29]

Effective
    assistance by counsel requires that counsel be competent. However, effective
    assistance involves more; it also requires counsel to give the accuseds cause
    her undivided loyalty, which is a prerequisite to proper legal representation:
W.
    (W.)
,
at pp. 171-72.

[30]

To establish a lack
    of effective assistance based on counsels conflict of interest, the appellant
    must demonstrate (i) an actual conflict of interest between the respective
    interests represented by his counsel and (ii) as a result of that conflict,
    some impairment of counsels ability to effectively represent the appellants
    interests. The appellant need not demonstrate that, but for the ineffective
    representation of counsel, the verdict would have been different:
W. (W.)
,
    at p. 173.

Determining whether counsel is in a conflict of interest position

[31]

A lawyers duty
    of loyalty to a client includes a duty to avoid conflicting interests. One type
    of prejudice from which the law of conflict of interest seeks to protect a
    client is the prejudice arising where the lawyer soft peddles his
    representation of a client in order to serve his own interests, those of
    another client, or those of a third person:
Canadian National Railway Co.
    v. McKercher LLP
, 2013 SCC 39, [2013] S.C.R. 649 (
CNR
), at
    para. 23.

[32]

As regards a
    current client, a lawyer must not place herself in a situation that jeopardizes
    her effective on-going representation of the client:
CNR
, at para. 23.
    That is because [t]here should be no room for doubt about counsels loyalty
    and dedication to the clients case:
R. v. McCallen
(1999), 43 O.R.
    (3d) 56 (C.A.), at p. 67. As well, [w]hen a client employs an attorney, he has
    a right to presume, if the latter be silent on the point, that he has no
    engagements, which interfere, in any degree, with his exclusive devotion to the
    cause confided to him:
Williams v. Reed
, 29 F. Cas. 1386 (Cir. Ct.,
    D. Maine 1824), quoted with approval in
Strother v. 3464920 Canada Inc.
,
    2007 SCC 24, [2007] S.C.R. 177, at para. 55.

[33]

Although the
    relentless financial pressure of the business of law may tempt some lawyers to
    accept or hang onto mandates that impinge on their duty of loyalty to an
    existing client, the law is clear: Loyalty includes putting the clients
    business ahead of the lawyers business:
R. v. Neil
, 2002 SCC 70, [2002]
    3 S.C.R. 631, at para. 24.

[34]

The case law
    sets out a two-step analysis to determine whether a lawyers acceptance of a
    retainer would conflict with her duty of loyalty to a current client. The first
    step involves ascertaining whether the bright line rule articulated by the
    Supreme Court in
Neil
, at para. 29, applies. That rule states:

[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.]

[35]

The bright line
    rule applies only where the immediate, legal interests of clients are directly
    adverse in the matters on which the lawyer is acting:
CNR
,
at
    paras. 33 and 35.

[36]

Where the
    bright line rule does not apply, the second step of the analysis considers the
    more contextual substantial risk principle formulated in
CNR
,
at para. 38:

When a situation falls outside the scope of the bright line
    rule for any of the reasons discussed above, the question becomes whether the
    concurrent representation of clients creates a substantial risk that the
    lawyers representation of the client would be materially and adversely
    affected. The determination of whether there exists a conflict becomes more
    contextual, and looks to whether the situation is liable to create conflicting
    pressures on judgment as a result of the presence of factors which may
    reasonably be perceived as affecting judgment.

IV.

Positions of the Parties

[37]

The appellant
    submits his counsel, Munn, was in an actual conflict of interest because his interests
    were immediately and directly adverse to Bandas, even though Munn represented
    them on unrelated matters. He argues Munn could not put forward Banda as a
    third party suspect in his case without eliciting bad character evidence that
    discredited Banda and her friends, thereby betraying Bandas immediate legal
    interests. As a result, Munn put herself in a position of divided loyalties,
    without disclosing the conflict to the appellant.

[38]

The Crown takes
    a different view, arguing no actual conflict of interest arose from Munns
    concurrent representation of the appellant and Banda. That was because no
    credible evidence existed upon which the appellant could advance a third party
    suspect defence implicating Banda, given the requirements for such a defence
    identified by this court in
R. v. Tomlinson
, 2014 ONCA 158, 307 C.C.C.
    (3d) 36, at paras. 70-78:

·

Where a third party suspect defence is advanced at trial, the
    question for the trier of fact is whether, on the evidence as a whole, the
    possible involvement of the third party raises a reasonable doubt about the
    guilt of a person charged;

·

The evidence marshalled in support of a third party suspect
    defence must be relevant, material and admissible. To satisfy the relevance
    requirement, there must be a sufficient connection between the third party and
    the crime, otherwise the third party evidence is neither relevant nor material;

·

The
term opportunity or evidence of opportunity
    describes the nature of the connection between the third party and the conduct
    charged essential to providing an air of reality to the third party suspect
    defence; and,

·

Relevant disposition or propensity evidence about the third party
    may include the persons prior convictions that demonstrate a relevant
    disposition or propensity. However, since the fact that a

witness

is
    charged with an offence generally has no bearing on the witness credibility,
    it would be illogical to conclude that the fact of a charge can be of service
    in establishing a third partys

disposition

when
    that disposition is offered as circumstantial evidence of conduct.

[39]

The Crown
    submits Bandas ownership of the Grand Am did not provide a sufficient connection
    between her and the offence. As well, by the time of the appellants trial, the
    possession of cocaine charge against Banda had been withdrawn. As a result, defence
    counsel could not have used Bandas charge on possession of cocaine as
    circumstantial evidence of third party suspect conduct.

V.

Analysis

[40]

On the facts of
    this case, both the determination of whether an actual conflict of interest
    existed and whether the conflict resulted in some impairment to effective
    representation are informed by the availability of a third party suspect
    defence implicating Banda.

[41]

When the
    appellant asked Munn to represent him on the drug charges in October 2011, Munn
    was acting for Banda on two breach of recognizance charges. It is unclear
    whether at the time Munn knew Banda was the owner of the Grand Am in which the
    appellant had been a passenger and the crack cocaine was found. However, the
    Crown disclosure provided to Munn in November 2011 - well before the
    appellants preliminary inquiry - clearly revealed Banda owned the Grand Am.

[42]

Then, in August
    2012, Munn accepted a retainer from Banda to represent her on a charge of
    possession of cocaine.

[43]

By that point in
    time, at the latest, the interests of the appellant and Banda were clearly
    opposed. Munn knew the appellant was denying any knowledge of the crack cocaine
    found in the baggies on the rear floor of Bandas car. Yet, effective
    representation of the appellant required Munn to consider and investigate the
    availability of a defence pointing the finger at a third party suspect 
    whether the driver, McKee; the other passenger, Amponsah; or the cars owner,
    Banda. Investigating or advancing a third party suspect defence against Banda
    would pit the appellants legal interests directly against those of Banda:
CNR
,
    at paras. 33-34.

[44]

The Crown argues
    that is not a proper way to examine whether ineffective assistance of counsel
    based on a conflict of interest is made out. The Crown contends that in order
    to determine whether counsels representation was in fact compromised in such a
    way as to result in a miscarriage of justice, an appellate court must look
    backwards to the trial. The Crown points to the following language in
W.
    (W.)
, at pp. 175-76:

The concern on appeal must be with what happened and not with
    what might have happened. It makes no more sense to find ineffective representation
    based on the possibility of a conflict of interest, than it does to find
    ineffective representation based on the mere possibility of incompetent
    representation.

[45]

Drawing on this
    language, the Crown submits that when one examines the state of the evidence at
    the time of the appellants trial, the Crowns case against him was
    overwhelming. As well, a third party suspect defence lacked any air of reality
    because the cocaine charge against Banda had been withdrawn, thereby precluding
    the defence from eliciting any bad character evidence on that matter. It
    follows, according to the Crown, that no miscarriage of justice occurred.

[46]

I am not
    persuaded by the Crowns submission. Certainly an assessment of a claim of
    ineffective assistance based on counsels conflict of interest requires an
    appellate court to look back at the events of the past. But, the appellate
    courts gaze does not stop at the trial. Where a conflict of interest is
    alleged, a courts review must extend back to the point of time at which the
    appellant contends counsel found herself in a conflict of interest.

[47]

In the present
    case, that point of time was August 2012, over a year before the appellants
    trial. By then, Munn knew that: Banda owned the Grand Am in which the police
    found the drugs that formed the basis of the charges against the appellant;
    Bandas roommate, McKee, was driving the car when the drugs were found; the
    close relationship between Banda and McKee could support an inference Banda
    would entrust the drugs into the care of her roommate; the criminal records of
    both Banda and McKee included convictions for crimes of dishonesty; and Banda
    had just been charged with possession of cocaine. Taken together, such
    information disclosed that a third party suspect defence pointing to Banda, designed
    to raise a reasonable doubt on behalf of the appellant, was an available
    option, a realistic option, or a realistically available defence, at least
    requiring consideration and investigation by defence counsel:
W. (W.)
,
    at pp. 181-82 and 186.

[48]

Munn ultimately
    acknowledged as much on her cross-examination. She conceded the existence of a relevant
    connection between the appellant and Banda in respect of the charges against
    him:

Q. 621. Okay, and so surely you can see that there was a
    relation  a connection between Ms. Banda and Mr. Baharloo here?

Munn: Yes, there is. Yes.

Q. 622. Okay, and thats not necessarily a happy connection for
    either of them, right?

A. I  Im not certain how to characterize the connection.
    Certainly there is a connection.

Q. 623. Okay, she owned the car? He was found in the car?

A. Yes.

Q. 624. And the drugs were found in the car?

A. Thats correct.

Q. 625. If one of them was guilty of possession of that cocaine
    for the purpose of trafficking, the other was likely innocent, right?

A. Well, Ms. Banda wasnt charged so, yes.

[49]

In her
    affidavit, Munn deposed that her trial strategy for the appellant did not
    involve a third party suspect application because her trial strategy was
    solely focused on protection of the presumption of innocence of [the
    appellant]. In her opinion, to raise the issue of another suspect would allow
    the Crown to present reply evidence that could introduce bad character evidence
    of [the appellant] In cross-examination, Munn was pressed on that point:

Q. 740. Okay, Im going to suggest to you that whatever
    character evidence the Crown might have introduced pales in comparison to all
    the incriminating material on Ms. Banda.

Munn: Its possible.

Q. 741. And all that incriminating material on Ms. Banda went
    to the core of Mr. Baharloos defence?

A. I dont agree with that.

Q. 742. You dont agree that the fact that Ms. Banda had an
    outstanding charge for possession of cocaine wasnt relevant to whether she was
    in possession of that cocaine instead of Mr. Baharloo?

A. I suppose looking at it now, yes. That does seem at the time
    though that wasnt relevant to me.

[50]

Accordingly, by
    August 2012 the immediate, legal interests of the appellant and Banda were
    directly adverse  Munn was in an actual conflict of interest. As well, the concurrent
    retainers created a substantial risk that Munns representation of the
    appellant would be materially and adversely affected. They created conflicting
    pressures on Munns judgment because of the divided loyalties created by her
    concurrent retainers. To use the vernacular: for Munn to investigate and advance
    a third party suspect defence on behalf of the appellant, she would have to
    throw another client, Banda, under the bus. Those circumstances created a
    real risk that Munn would soft peddle her representation of the appellant to
    avoid prejudicing the interests of Banda - a continuing, repeat client.

[51]

At a minimum,
    before accepting a retainer from Banda in August 2012 to represent her on the
    possession of cocaine charge, Munn was required to fully disclose to both the
    appellant and Banda 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:
Neil
, at para. 29. That Munn did not
    do.

[52]

By accepting the
    retainer to act for Banda on the possession of cocaine charge, Munn put herself
    in an actual conflict of interest with respect to her representation of the
    appellant. Her representation of the appellant, from that point forward at the
    latest, was tainted by impermissible divided loyalties and an actual conflict
    of interest.

[53]

As this court
    stated in
W. (W.)
, at p. 178, the real issue on appeal in cases
    involving allegations of conflicts of interest arising out of the joint defence
    of co-accused will be whether there was an actual conflict of interests. If
    that conflict is demonstrated, the conclusion that at least one of the
    co-accused did not receive effective representation will follow in most cases.
    That applies with equal force to the present case, even though the retainers
    involved different matters and the appellant and Banda were not co-accused.

[54]

Accordingly, the
    appellant has demonstrated that (i) an actual conflict of interest existed by
    Munns concurrent representation of Banda and him, and (ii) that conflict
    impaired Munns ability to represent effectively the appellants interests. It
    led Munn to fail to pursue a third party suspect defence which, in the
    circumstances, was a realistically available defence. The appellant has established
    a lack of effective assistance by trial counsel.

[55]

As a result of
    the ineffective assistance Munn provided to the appellant because of her conflict
    of interest, a miscarriage of justice occurred:
W. (W.)
, at p. 173.
    The appellants conviction cannot stand.

[56]

In light of that
    conclusion, there is no need to address the appellants further arguments that
    Munn breached her duty of candour or failed to afford him the opportunity to
    elect his mode of trial.

VI.

Disposition

[57]

I would allow
    the appeal, set aside the appellants conviction, and direct a new trial.

Released: May 5, 2017 (EEG)

David Brown J.A.

I agree. E.E.
    Gillese J.A.

I agree. K. van
    Rensburg J.A.


