



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Leroux-Blake, 2021 ONCA 868

DATE: 20211208

DOCKET: C62717

Fairburn A.C.J.O., Feldman and
    Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Carole Leroux-Blake

Appellant

Carter Martell, for the appellant

Lisa Mathews and Ildikó Erdei, for the
    respondent

Heard: in writing

On appeal from the conviction entered on
    June 9, 2016 by Justice Patricia C. Hennessy of the Superior Court of Justice,
    sitting without a jury.

REASONS FOR DECISION

[1]

The appellant appeals from her conviction for
    possession of cocaine for the purpose of trafficking. The cocaine was found in
    a trailer that belonged to the appellant and her co-accused, her former husband.
    Each maintained their innocence.

[2]

The appellants main ground of appeal is an ineffective
    assistance of counsel claim arising from a conflict of interest.

[3]

Trial counsel originally represented the appellants
    co-accused, including at his preliminary inquiry. The Crown withdrew the charges
    against the co-accused at that proceeding. This was done in exchange for a
    statutory declaration from the co-accused that he had no knowledge of the fact
    that there were drugs in the trailer.

[4]

While the record is unclear as to when the
    appellant officially retained the same trial counsel, by the time that her
    trial commenced in the Superior Court of Justice, that counsel was clearly on
    the record and representing her.

[5]

The appellant denied that the drugs were hers
    and told counsel that she wanted to plead not guilty. Trial counsel accepts
    that she told him this.

[6]

Trial counsels view was that the case against
    her was strong because of what he perceived to be an inculpatory utterance she
    had made at the time of arrest. Yet the appellant denied that she made that utterance.
    Trial counsel accepts that he never asked the Crown whether the Crown intended
    to use the utterance in the prosecution case. He also accepts that he never interviewed
    the appellant, just in case she admitted knowledge and control to him, which he
    believed would limit the defence he could run at trial.

[7]

Despite all of this, trial counsel determined
    that the appellant had no substantive defence and that the case could only be
    won by challenging the search warrant that had been executed on the trailer,
    resulting in the discovery of the cocaine. His view was that the success of any
    such application would be determinative of the case. Therefore, without
    explaining matters to the appellant, counsel made an agreement with the trial Crown
    that, in exchange for consent to cross-examine the affiant on a
Garofoli
application,
[1]
he would concede that the search warrant challenge would be determinative of
    the trial. The trial judge was advised that this was the defence position.

[8]

Importantly, the fresh evidence shows that the trial
    Crown did not raise the conflict issue because he believed, based on trial counsels
    position, that possession of the drugs was not at issue. In the trial Crowns
    view, the only live issue at trial would be the viability of the search
    warrant. The trial Crown acknowledges in the fresh evidence that, had the
    matter gone to trial, the Crown would have had to call the appellants former co-accused
    as a prosecution witness to deny that he had knowledge and control over the cocaine,
    because the only people with control over the trailer in which the cocaine was
    found were the appellant and her co-accused. This would have given rise to a
    clear conflict of interest because their interests were immediately and
    directly adverse to one another; any substantive defence put forward on behalf
    of the appellant would necessarily implicate the appellants former co-accused,
    to whom trial counsel still owed a duty of loyalty:
R. v. Baharloo
,
    2017 ONCA 362, 348 C.C.C. (3d) 64, at para. 34. Had the appellants former
    co-accused testified, her trial counsel would have had to cross-examine him,
    bringing this conflict into stark relief.

[9]

As acknowledged by the respondent, it is clear
    that the appellants interests were directly adverse to her former co-accuseds
    interests. The miscarriage of justice arising from the conflict of interest is
    exposed to light when one considers how the matter unfolded.

[10]

When the
Garofoli
application was
    dismissed, despite having been told by the appellant that she did not want to
    plead guilty, and without consulting her, trial counsel proceeded with a
nolo
    contendere
procedure where an agreed statement of facts was presented to
    the court that resulted in a finding of guilt, without a guilty plea being
    entered.
[2]
For all intents and purposes, it was a guilty plea.

[11]

The manner in which counsel proceeded by way of
    an agreed statement of facts rendered the verdict unreliable and a miscarriage
    of justice has resulted.

[12]

We therefore accept the respondents concession
    that this appeal must be allowed and the appellants conviction set aside. The
    respondent has clearly stated that the appellant will not be re-prosecuted. In
    these circumstances, a new trial is ordered, and the respondent will
    undoubtedly take the appropriate steps to bring the matter to a conclusion
    without a trial.

[13]

Given the
    respondents position, the appellant is not required to surrender in accordance
    with her bail condition.

Fairburn A.C.J.O.

K. Feldman J.A.

A. Harvison Young J.A.





[1]

R. v. Garofoli
, [1990] 2 S.C.R. 1421.



[2]
The trial judge relied upon counsels representations and did not
    question the appellant as to whether she agreed to proceeding in this fashion.


