R. v. Neil (D.L.), (2002) 317 A.R. 73 (SCC)

JudgeMajor, Bastarache, Binnie, Arbour and LeBel, JJ.
CourtSupreme Court (Canada)
Case DateJanuary 25, 2002
JurisdictionCanada (Federal)
Citations(2002), 317 A.R. 73 (SCC);2002 SCC 70

R. v. Neil (D.L.) (2002), 317 A.R. 73 (SCC);

    284 W.A.C. 73

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [2002] A.R. TBEd. NO.014

David Lloyd Neil (appellant) v. Her Majesty the Queen (respondent)

(28282; 2002 SCC 70; 2002 CSC 70)

Indexed As: R. v. Neil (D.L.)

Supreme Court of Canada

Major, Bastarache, Binnie, Arbour and LeBel, JJ.

November 1, 2002.

Summary:

An accused applied for a stay of proceedings respecting a guilty verdict by a jury on a four count indictment and respecting four further indictments comprising 41 counts. The grounds alleged were that the presence of a conflict of interest by counsel constituted a violation of the accused's ss. 7 and 11(d) Charter rights.

The Alberta Court of Queen's Bench, in a decision reported 235 A.R. 152, allowed the application respecting the guilty verdict. The Crown appealed.

The Alberta Court of Appeal, in a decision reported 266 A.R. 363; 228 W.A.C. 363, allowed the appeal, quashed the stay of proceedings and confirmed the accused's convictions at trial. The court remitted the matter to the trial judge for sentencing. The accused appealed.

The Supreme Court of Canada dismissed the appeal.

Barristers and Solicitors - Topic 1545

Relationship with client - Duty to client - General - Obligation of loyalty - The Supreme Court of Canada stated that "In an era of national firms and a rising turnover of lawyers, especially at the less senior levels, the imposition of exaggerated and unnecessary client loyalty demands, spread across many offices and lawyers who in fact have no knowledge whatsoever of the client or its particular affairs, may promote form at the expense of substance, and tactical advantage instead of legitimate protection. Lawyers are the servants of the system, however, and to the extent their mobility is inhibited by sensible and necessary rules imposed for client protection, it is a price paid for professionalism. Business development strategies have to adapt to legal principles rather than the other way around. Yet it is important to link the duty of loyalty to the policies it is intended to further. An unnecessary expansion of the duty may be as inimical to the proper functioning of the legal system as would its attenuation. The issue always is to determine what rules are sensible and necessary and how best to achieve an appropriate balance among the competing interests." - See paragraph 15.

Barristers and Solicitors - Topic 1545

Relationship with client - Duty to client - General - Obligation of loyalty - The Supreme Court of Canada discussed a lawyer's duty of loyalty to an existing client - The court stated that "the general prohibition [against acting against an existing client] is undoubtedly a major inconvenience to large law partnerships and especially to national firms with their proliferating offices in major centres across Canada. Conflict searches in the firm's records may belatedly turn up files in another office a lawyer may not have been aware of. Indeed, he or she may not even be acquainted with the partner on the other side of the country who is in charge of the file. Conflict search procedures are often inefficient. Nevertheless it is the firm not just the individual lawyer, that owes a fiduciary duty to its clients, and a bright line is required. 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." - See paragraph 29.

Barristers and Solicitors - Topic 1545

Relationship with client - Duty to client - General - Obligation of loyalty - The Supreme Court of Canada discussed the various remedies that a client had against a lawyer for breach of the duty of loyalty or breach of the lawyer's fiduciary duty - See paragraphs 36 to 40.

Barristers and Solicitors - Topic 1548

Relationship with client - Duty to client - General - Fiduciary duty - [See second and third Barristers and Solicitors - Topic 1545 ].

Barristers and Solicitors - Topic 1604.1

Relationship with client - Conflict of interest - Acting for jointly or separately charged or tried co-accused - Neil was convicted of forgery charges - Lazin was a member of a firm that Neil had consulted about his charges - Lazin was using a "cut throat" defence in other proceedings (Canada Trust matters) to portray his own client as Neil's innocent dupe - The victim of Neil's forgeries (Doblanko) consulted Lazin, who instructed her to contact the police resulting in the forgery charges being laid - The firm never represented Neil in any of the court proceedings - Neil applied for a stay of proceedings, alleging that the presence of conflict of interest by counsel constituted an abuse of process - The Supreme Court of Canada refused the stay but stated that the law firm owed Neil a duty of loyalty at the material time, and the law firm ought not to have taken up the cause of one of Neil's alleged victims, Doblanko, in proceedings before a civil court at the same time as it maintained a solicitor-client relationship with Neil respecting the Canada Trust matters pending before the criminal court - The Doblanko matter was adverse to Neil's interest - The law firm, as fiduciary, could not serve two masters at the same time - See paragraph 3.

Barristers and Solicitors - Topic 1618

Relationship with client - Conflict of interest - Remedies - Neil was convicted of forgery charges - Lazin was a member of a firm that Neil had consulted about his charges - Lazin was using a "cut throat" defence in other proceedings to portray his own client as Neil's innocent dupe - The victim of Neil's forgeries (Doblanko) consulted Lazin, who instructed her to contact the police resulting in the charges being laid - The firm never represented Neil in any of the court proceedings - Neil applied for a stay of proceedings, alleging that the presence of conflict of interest by counsel constituted, inter alia, an abuse of process - The Supreme Court of Canada held that there was a conflict of interest - However, Neil was not entitled to a stay of proceedings - The law firm's conduct did not affect the fairness of the Doblanko trial - Its involvement predated the laying of charges by the police - There was no issue of confidential information - The Doblanko charges were serious and would almost certainly have been laid in any event - The prosecution of the Doblanko charge was not an abuse of process - This was manifestly not one of those clearest of cases where a stay of the jury's verdict of guilt was warranted - See paragraph 3.

Barristers and Solicitors - Topic 1619

Relationship with client - Conflict of interest - Situations resulting in a conflict - [See Barristers and Solicitors - Topic 1604.1 ].

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - General - Application - Nongovernmental or private interference - Neil was convicted of forgery charges - Lazin was a member of a firm that Neil had consulted about his charges - Lazin was using a "cut throat" defence in other proceedings (Canada Trust matters) to portray his own client as Neil's innocent dupe - The victim of Neil's forgeries (Doblanko) consulted Lazin, who instructed her to contact the police resulting in the forgery charges being laid - The law firm never represented Neil in any of the court proceedings - Neil applied for a stay of proceedings, alleging that the presence of conflict of interest by counsel constituted a violation of the accused's ss. 7 and 11(d) Charter rights - The Alberta Court of Appeal stated that the actions of the law firm were not state actions, and therefore did not attract Charter scrutiny - The Supreme Court of Canada agreed - It was difficult to see how the conduct of a law firm that was not actually engaged as defence counsel, as here, could have such a drastic impact on the constitutionality of the trial - There was no wrongful state action - Although a lawyer was an "officer of the court", this was an inadequate basis on which to base state responsibility - The law firm's conduct did not "infect" Neil's trial with "a serious risk of injustice" - There was nothing in the verdict to contravene our fundamental notions of justice - See paragraph 43.

Civil Rights - Topic 8313

Canadian Charter of Rights and Freedoms - General - Application - Solicitor-client relationship - [See Civil Rights - Topic 8311 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Barristers and Solicitors - Topic 1618 ].

Criminal Law - Topic 253

Abuse of process - What constitutes - [See Barristers and Solicitors - Topic 1618 ].

Criminal Law - Topic 4983.1

Appeals - Indictable offences - Powers of Court of Appeal - Power to order new trial - The accused was convicted of several charges by a jury - The trial judge stayed the charges before the accused was sentenced - The Alberta Court of Appeal lifted the stay and sent the case back to the trial judge for sentencing - The accused appealed, arguing that the Court of Appeal erred in sending the case back for sentencing and that a new trial should have been ordered - He argued that the stay was equivalent to an acquittal - As the appeal court had overturned an acquittal by a judge sitting with a jury, it had no power to enter a verdict of guilty and had to order a new trial - The Supreme Court of Canada rejected the argument - The effect of the jury's guilty verdict was stayed by the trial judge - The stay was lifted by the Court of Appeal - The jury's verdict was thereby not reversed but activated - See paragraph 45.

Criminal Law - Topic 4987

Appeals - Indictable offences - Powers of Court of Appeal - Powers re sentencing - [See Criminal Law - Topic 4983.1 ].

Cases Noticed:

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241; 48 C.P.C.(2d) 113, refd to. [para. 12].

Tanny v. Gurman, [1994] R.D.J. 10 (Que. C.A.), refd to. [para. 12].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201, refd to. [para. 12].

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 12].

R. v. McCallen (J.B.) (1999), 116 O.A.C. 308; 43 O.R.(3d) 56 (C.A.), refd to. [para. 12].

R. v. Speid (1983), 8 C.C.C.(3d) 18 (Ont. C.A.), refd to. [para. 13].

Teoli c. Fargnoli et autres (1989), 30 Q.A.C. 136, refd to. [para. 13].

R. v. Parsons (G.J.) (1992), 100 Nfld. & P.E.I.R. 260; 318 A.P.R. 260 (Nfld. C.A.), refd to. [para. 14].

McInerney v. MacDonald, [1992] 2 S.C.R. 138; 137 N.R. 35; 126 N.B.R.(2d) 271; 317 A.P.R. 271; 93 D.L.R.(4th) 415, refd to. [para. 16].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1; [1994] 9 W.W.R. 609; 22 C.C.L.T.(2d) 1; 117 D.L.R.(4th) 161, refd to. [para. 16].

Montreal Trust Co. of Canada v. Basinview Village Ltd. et al. (1995), 142 N.S.R.(2d) 337; 407 A.P.R. 337 (C.A.), refd to. [para. 17].

Enerchem Ship Management Inc. v. Ship Coastal Canada et al., [1988] 3 F.C. 421; 83 N.R. 256 (F.C.A.), refd to. [para. 17].

Jans v. Coulter (G.H.) Co. (1992), 105 Sask.R. 7; 32 W.A.C. 7 (C.A.), refd to. [para. 17].

Stewart v. Canadian Broadcasting Corp. (1997), 150 D.L.R.(4th) 24 (Ont. Gen. Div.), refd to. [para. 17].

Gaylor v. Galiano Trading Co. (1996), 29 B.L.R.(2d) 162 (S.C.), refd to. [para. 17].

Drabinsky v. KPMG et al. (1998), 41 O.R.(3d) 565 (Gen. Div.), refd to. [para. 18].

Davey v. Woolley et al. (1982), 35 O.R.(2d) 599 (C.A.), refd to. [para. 19].

Services environnementaux Laidlaw (Mercier) Ltée v. Québec (Procureur général), [1995] R.J.Q. 2393 (C.A.), refd to. [para. 19].

Szarfer v. Chodos (1986), 54 O.R.(2d) 663 (H.C.), affd. (1988), 66 O.R.(2d) 350 (C.A.), refd to. [para. 19].

Moffat v. Wetstein (1996), 29 O.R.(3d) 371 (Gen. Div.), refd to. [para. 19].

R. v. Silvini (1991), 50 O.A.C. 376; 9 C.R.(4th) 233; 5 O.R.(3d) 545; 68 C.C.C.(3d) 251 (C.A.), refd to. [para. 19].

R. v. W.W. and I.W. (1995), 84 O.A.C. 241; 25 O.R.(3d) 161 (C.A.), refd to. [para. 19].

R. v. Graham, [1994] O.J. No. 145 (Prov. Ct.), refd to. [para. 19].

R. v. Henry (1990), 61 C.C.C.(3d) 455 (Que. C.A.), refd to. [para. 19].

Spector v. Ageda, [1971] 3 All E.R. 417 (Ch. D.), refd to. [para. 19].

Ramrakha et al. v. Zinner et al. (1994), 157 A.R. 279; 77 W.A.C. 279 (C.A.), refd to. [para. 25].

Bolkiah v. KPMG, [1999] 2 A.C. 222; 234 N.R. 180 (H.L.), refd to. [para. 27].

R. v. Robillard (1986), 14 O.A.C. 314; 28 C.C.C.(3d) 22 (C.A.), refd to. [para. 38].

R. v. Chen (2001), 53 O.R.(3d) 264 (Sup. Ct.), refd to. [para. 38].

R. v. Graff (E.R.) (1993), 135 A.R. 235; 33 W.A.C. 235; 80 C.C.C.(3d) 84 (C.A.), refd to. [para. 39].

R. v. Barbeau (1996), 110 C.C.C.(3d) 69 (Que. C.A.), refd to. [para. 39].

Glasser v. United States (1942), 315 U.S. 60, refd to. [para. 39].

United States of America v. Cobb et al., [2001] 1 S.C.R. 587; 267 N.R. 203; 145 O.A.C. 3, refd to. [para. 40].

United States of America v. Shulman, [2001] 1 S.C.R. 616; 268 N.R. 115; 145 O.A.C. 201, refd to. [para. 40].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; [1996] 2 W.W.R. 153; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1; 29 W.C.B.(2d) 152, refd to. [para. 41].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81; 118 C.C.C.(3d) 443; 10 C.R.(5th) 163, refd to. [para. 41].

Cuyler v. Sullivan (1980), 446 U.S. 335 (Sup. Ct.), refd to. [para. 43].

Mickens v. Taylor (2002), 122 S. Ct. 1237, refd to. [para. 43].

R. v. Finn (D.M.), [1997] 1 S.C.R. 10; 207 N.R. 244; 148 Nfld. & P.E.I.R. 89; 464 A.P.R. 89; 112 C.C.C.(3d) 288, refd to. [para. 44].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289; 70 C.R.(3d) 209, refd to. [para. 44].

R. v. Pearson (E.), [1998] 3 S.C.R. 620; 233 N.R. 367, refd to. [para. 45].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; [1985] 6 W.W.R. 127; 21 C.C.C.(3d) 7; 20 D.L.R.(4th) 651; 47 C.R.(3d) 193, refd to. [para. 45].

Authors and Works Noticed:

American Law Institute, Restatement of the Law (Third), The Law Governing Lawyers (2000), vol. 2, pp. 244, 245, § 121 [para. 31].

Canadian Bar Association, Code of Professional Conduct (1988), c. 5, Commentary 4 to 6 [para. 19].

Johnson, R., Gerard V. La Forest at the Supreme Court of Canada 1985-1997 (2000), pp. 81 to 83 [para. 16].

Law Society of Alberta, Code of Professional Conduct (1995) (2001 Looseleaf Update) (Release 9), c. 6, p. 50 [para. 24]; pp. viii [para. 22]; ix [para. 5].

Nightingale, J., Report of the Proceedings before the House of Lords, on a Bill of Pains and Penalties against her Majesty, Caroline Amelia Elizabeth, Queen of Great Britain, and Consort of King George the Fourth (Trial of Queen Caroline) (1821), vol. 2, Part. 1, p. 8 [para. 12].

Waters, D.W.M., The Development of Fiduciary Obligations in Johnson, R., Gerard V. La Forest at the Supreme Court of Canada 1985-1997 (2000), pp. 81 to 83 [para. 16].

Counsel:

Nathan J. Whitling and Matthew Milne-Smith, for the appellant;

James A. Bowron, for the respondent.

Solicitors of Record:

Parlee McLaws, Edmonton, Alberta, for the appellant;

The Attorney General for Alberta, Edmonton, Alberta, for the respondent.

This appeal was heard on January 25, 2002, before Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered by Binnie, J., in both official languages on November 1, 2002.

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