Heather Sadler Jenkins v. Agnew

2004 BCSC 152 Heather Sadler Jenkins v. Agnew IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Heather Sadler Jenkins v. Agnew 2004 BCSC 152 Date: 20040205 Docket: 20062 Registry: Prince George IN THE MATTER OF THE LEGAL PROFESSION ACT S.B.C. 1998, c. 9, s. 70 Between: Heather Sadler Jenkins Law Firm And: David Agnew Client Before: Master Baker Decision as Registrar Counsel for the law firm: D. Jenkins, Q.C. Appearing for the client: D. Agnew, In Person Date and Place of Hearing: January 20, 2004 Prince George, B.C. ISSUE [1] Mr. Agnew, the client, applies pursuant to s. 70 of the Legal Profession Act, S.B.C. 1998 c. 9, ("the Act") for review of three accounts of the law firm, dated May 23, 2001, November 8, 2001, and February 19, 2002, respectively. The total sum in issue is $13,726.08 of which $11,456.14 comprises fees. As more than one year had expired after the final account, Mr. Agnew obtained the appropriate order extending the limitation for the review. As all of the firm's services were given by Mr. Jenkins, I will refer to him as synonymous with the firm. BACKGROUND [2] In late 2000 or early 2001 Mr. Agnew and his brother were charged under ss. 5 and 7 of the Controlled Drug and Substances Act, R.S.C. 1996 Ch. 19, i.e. possession of marijuana for the purpose of trafficking and cultivation (in the vernacular, operating a "grow-op"). Mr. Agnew met with and retained Mr. Jenkins in February 2001. His brother was represented by separate counsel. There were the usual preliminary appearances, including a successful application for disclosure of the evidence in support of a search warrant that led to the charges. The accused had elected trial in Provincial Court and in all there were six preliminary appearances, after which the matter went to trial November 5 and 6, 2001. [3] The matter did not conclude November 6 (para. 12, below). A further date was therefore set for the following February. Before that date Mr. Agnew's brother discharged his counsel. The new counsel applied for and was granted an adjournment of the February trial date. [4] During the trial (i.e. November 5 and 6) Mr. Jenkins approached Crown counsel and discussed possible pleas. The discussions seem to have been relatively cursory, and nothing came of them. In the following January Mr. Agnew expressed to Mr. Jenkins his displeasure at these discussions having taken place, suggesting that they were without any authority on his part and against his best interest. Mr. Jenkins immediately sent Mr. Agnew a letter (January 10, 2002, Exhibit 5) confirming this discussion. In the letter Mr. Jenkins denied acting without instructions or acting against Mr. Agnew's interest. He expressed the issue very clearly when he wrote to Mr. Agnew "You will have to let me know whether or not on reflection you still want me to remain involved." [5] At first Mr. Agnew elected to stay with Mr. Jenkins (para. 15, below), but after four months passed, on May 1, Mr. Agnew attended at Mr. Jenkins' office, accused him of, essentially, working with Crown counsel against his interest, and accused Mr. Jenkins of being part of "a cover up". The discussion became very heated and Mr. Agnew discharged Mr. Jenkins. THE PARTIES' POSITIONS [6] Client Position. Bluntly put, Mr. Agnew has the following concerns - - Mr. Jenkins did not follow his instructions (or, alternatively put, acted in contradiction to his instructions); - Mr. Jenkins breached his trust; - Counsel made unwise or ill-advised strategic decisions in the conduct of the case; - The conduct of the case by Mr. Jenkins did not address the core issue of the matter as seen by Mr. Agnew. [7] Solicitor's Position. Mr. Jenkins is of the view that he did exactly what he was retained to do, that he did not act in breach of any instructions, and that his termination resulted from reasons entirely unrelated to his conduct of the matter or his competence as counsel. ANALYSIS [8] Review of solicitors' accounts is governed by the terms of s. 71(4) of the Act: 4) At a review of a lawyer's bill, the registrar must consider all of the circumstances, including (a) the complexity, difficulty or novelty of the issues involved, (b) the skill, specialized knowledge and responsibility required of the lawyer, (c) the lawyer's character and standing in the profession, (d) the amount involved, (e) the time reasonably spent, (f) if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable, (g) the importance of the matter to the client whose bill is being reviewed, and (h) the result obtained. Prior to considering each of these, however, I will review Mr. Agnew's concerns in the specific context of the criminal proceedings. [9] At the time of the charges Mr. Agnew lived on his brother's rural property near Prince George. The police arrived one day, warrant in hand, searched the property, and, on the strength of the 400 marijuana plants found there, charged both Mr. Agnew and his brother as above. It was Mr. Agnew's view from the very outset that the warrant was invalid because it was based upon fabricated or falsified evidence. He wanted the case thrown out on a Charter argument and, in particular, he wanted the principal investigating police officer challenged in court. [10] It was this sense of outrage and his wish to see the investigating officer disbelieved that seems, in retrospect, at least, to have fuelled Mr. Agnew's approach to the matter. It should be noted, however, that both Mr. Agnew (in 1989) and his brother, seemingly, have been convicted in the past for cultivation of marijuana, and that a grow-op was found on the same property several (perhaps five or more) years ago. Mr. Agnew's 1989 conviction resulted in a fine of $5,000.00. [11] Mr. Agnew's view is that, once a grow-op is discovered on a property, the police will assume that lightning strikes twice, and will, in subsequent years, either re-visit the property or keep it under observation. In this particular case, he says, the warrant was based upon the information of three anonymous informants, who attributed comments or information to a Mr. Murphy (an acquaintance of the Agnews). Mr. Murphy, he says, denied the information and was prepared to do so in court. In fact the Agnews brought Mr. Murphy from Ontario for the trial so that the warrant could be challenged. [12] On November 5th court time was reduced somewhat when a family law matter, apparently emergent in nature, intervened. On November 6th the investigating officer (whom, of course, Mr. Agnew wanted to challenge on the stand) did not attend court, apparently ill. It is abundantly clear that Mr. Agnew rejects any suggestion that the officer was ill, convinced instead that the officer was simply avoiding the challenge to his evidence. There is no evidence that the officer's illness was contrived. [13] During a pause in the criminal proceedings Mr. Jenkins apparently broached with Crown counsel the possibility of a negotiated plea. As the Crown was uninterested, the matter did not proceed further. Mr. Jenkins says that the discussions took place with the foreknowledge of Mr. Agnew and that he immediately informed Mr. Agnew of the results. There is no indication that Mr. Agnew protested or took serious issue, at the time, with the discussion. His position now is that these discussions contradicted his primary goal in the proceedings, i.e. to see that a Crown witness was challenged and discredited in court. [14] Mr. Jenkins, in this hearing, confirmed that he did have discussions with Crown, but advised that "any competent defense counsel" would and should discuss pleas with Crown counsel, even if there is no serious intent to plead. The discussion, he says, is simply one more tool in the box for defense counsel, and offers a discrete way of testing the Crown's view of its own case. A Crown counsel concerned about the strength of his or her case would obviously be more amenable to a plea than he or she might be if the case were solid. [15] As indicated above (para. 4) it was some two months later, in early January 2002, that Mr. Agnew indicated to Mr. Jenkins his displeasure that this plea-bargain discussion had taken place. Mr. Agnew's allegation that the discussion was either in breach of, or without, instructions was immediately challenged and rejected by Mr. Jenkins in his letter of January 12. Moreover, his invitation to Mr. Agnew to consider other counsel was (on January 17) apparently rejected by Mr. Agnew. [16] Around this time (January 2002) Mr. Agnew's brother discharged his counsel and his new counsel applied for and was granted an adjournment of the third day of trial. Before the matter returned to trial Mr. Agnew discharged Mr. Jenkins, who remitted to Mr. Agnew's new counsel the unused portion of his retainer, some $3,373.92. The two new counsel ultimately applied to the Provincial Court trial judge January 3, 2003 for re-election. The re-election was permitted, and the accused then elected trial by Supreme Court judge alone. The proceedings to date were therefore converted to a preliminary hearing and concluded that day with committal for trial. [17] The matter came to trial in the Supreme Court before Meiklem J., June 16 to 18, 2003. Mr. Agnew's evidence is that most of the time in trial was taken with the challenge to the warrant. He estimated that the balance of the trial, which turned on whether or not the Crown had proven that either or both of the Agnews had knowledge and control sufficient to found a conviction, took between one hour and one-half day. The challenge was unsuccessful, and the evidence gathered by the warrant was admitted. Moreover, the impugned investigating officer gave evidence and was cross-examined (as he had been in the January 2 proceedings in the Provincial Court). [18] In the result, Meiklem J. dismissed the charges. It is perhaps instructive to quote two comments from the oral reasons of Meiklem J. (Exhibit 4): But I have to say I cannot find the Crown's case proven here on knowledge and control. I have to, to use the vernacular, "hold my nose" a bit when I am saying that because I am disabusing my mind of what we heard on the voir dire, and we left most of the compelling evidence behind on the voir dire. (para. 2) And There is quite an overwhelming probability of guilt here, but it obviously does not fill the bill as far as proving the elements of possession beyond a reasonable doubt. So I have to acquit both accused. (para. 6) [19] Mr. Agnew is convinced that he was ultimately successful in his defense because his new counsel re-elected and took the matter to the Supreme Court, and that success in the Provincial Court was doubtful. [20] Breach of Instructions/Trust. The first two of Mr. Agnew's concerns, based as they are on the same facts and allegations, can be conflated to one. In my view there is no merit whatsoever to Mr. Agnew's allegation that Mr. Jenkins acted without instructions or in direct contradiction to instructions, in his casual discussions with the Crown during the trial. I have no doubt that Mr. Agnew (not surprisingly, perhaps) harboured deep antipathy toward the police. He may have regarded any discussions with Crown as "treating with the enemy". Nevertheless, I am not satisfied that his instructions clearly or strictly forbade the discussion. I accept Mr. Jenkins' view that effective defence counsel would always bear in mind (particularly as a trial progresses and evidence emerges) the possibility of discussions. I also accept that, even without serious intent to change a plea, counsel, for strictly tactical reasons, may discuss a plea with the Crown. I cannot see that such discussions are contrary to the interest of a client. Moreover, and more particularly, I accept that these discussions took place entirely with Mr. Agnew's knowledge, and that he did nothing on November 6th to prevent or criticise them. [21] Poor Strategic Decisions. There is no indication that counsel's decision to have the matter tried by the Provincial Court was a bad one. Firstly, Mr. Jenkins was not permitted to bring the matter to completion, so it is, to a degree, moot whether or not he would have secured an acquittal in the Provincial Court. Secondly, and more importantly, counsel must be given substantial latitude in how they choose to conduct a client's case. Many issues permit a multitude of approaches to solution, and a considerable variation in perspective or approach. As Master Joyce expressed the point in D. Brent Adair Personal Law Corp. v. Warren (1996), B.C.J. No. 2818, at para. 22: It is easy to be critical with the benefit of hindsight. Counsel's job is to present the case, to the best of his ability, in the manner in which he believes will be the most persuasive for the client. In doing so he is required to exercise his judgment as counsel in determining what evidence to tender in favour of his case, the extent and manner in which his opponent's case ought to be attacked and the emphasis to be given to particular facts and to particular propositions of law. In my view a registrar, conducting a review under the Legal Profession Act, should be cautious about reducing a lawyer's bill on the basis that some other lawyer might have conducted the case somewhat differently perhaps with different results. (Emphasis added) With this view, taken particularly with the conclusions and comments of Meiklem, J., above, I am not at all persuaded that Mr. Jenkins' approach to the case and strategic decisions, different as they may have been from subsequent counsel, were wrong. It may well be that, permitted to complete the matter, Mr. Jenkins' approach could have disposed of the charges a year before they were dismissed by the Supreme Court. [22] The Core Issue. Mr. Agnew wanted the principal investigating officer grilled on the stand and discredited. That was, he says, his primary goal and intent in the proceedings. He says this, however (and with respect) with considerable hindsight. When the matter was Mr. Jenkins' responsibility, Mr. Agnew faced the possibility of a second conviction for cultivation of marijuana. One suspects that a conviction would have resulted in a substantially greater punishment than a $5,000.00 fine. In any event, it is clear to me that criminal defence counsel's primary and immediate responsibility is to defend his or her client and, if possible, to secure an acquittal. Anything further achieved is "icing on the cake". [23] Mr. Agnew may, with the benefit of three years' hindsight, regard discrediting and punishing the police as his primary goal, but in the circumstances I regard that as a revisionist view. In any event, Mr. Jenkins cannot be somehow blamed for the fact that, apparently, the investigating officer fell ill on the second day of trial and was therefore unavailable. Police officers are from time to time accused of impropriety in the execution of their duties, but without some shred of corroboration, I cannot accept that the officer's absence was dishonest or motivated by the reasons suggested by Mr. Agnew. Simply put, Mr. Jenkins had absolutely no control over that event, but, had he continued to act, doubtless would have confronted the officer on the adjourned date as Mr. Agnew wished. [24] Moreover, Mr. Agnew's challenge to the warrant was, after considerable time spent in the Supreme Court, rejected. The constable obviously withstood challenge on the stand, although some evidence was apparently excluded by the voir dire. In these circumstances I cannot find that Mr. Jenkins, in the choices made as defence counsel or in the events of the case as they unfolded, ignored Mr. Agnew's concerns about either the police investigators or the warrant and investigation. The suggestion is simply without merit. [25] Legal Profession Act. I will now deal with the considerations mandated by the Act: i) Complexity - While charges arising from a grow-op are hardly unique, some degree of complexity was added by the challenge to the warrant. In fact, it is clear that most of the trial time in the Supreme Court dealt with a voir dire on the admissibility of the evidence gathered under the warrant. The Supreme Court file contains extensive case authority, and one expects that the argument had some complexity, at least. ii) Skill and knowledge - Mr. Jenkins was called to the bar in 1968 and practises exclusively in criminal law. There is no doubt that he has specialized knowledge and is senior in his field. iii) Character and Standing - Mr. Jenkins has been designated Queens Counsel, an indication that his skills, standing, and reputation have been formally recognized. iv) The Amount Involved - No amount was in issue in this matter, although a conviction would, in all likelihood, have resulted in a very serious fine to Mr. Agnew. v) Time Reasonably Spent - Mr. Jenkins does not keep time records, but the detailed evidence of his attendances at court and the "dozens" of meetings or discussions with Mr. Agnew seem time well and efficiently spent. Delays in the trial proceedings November 5 or 6 2001 were beyond his control. Certainly there is no evidence that he wasted any time or created any delay. vi) Agreement Re: Fee Rate - There was no time-based agreement. Mr. Jenkins, immediately upon being retained, set a flat fee for his services to Mr. Agnew. He was prepared to act for the sum of $15,000.00 together with disbursements and tax. Mr. Agnew clearly accepted these terms and, in fact, paid the entire retainer of $17,100.00 promptly. vii) Importance of The Matter - Obviously the matter was extremely important to Mr. Agnew for two reasons. Firstly, a second conviction for cultivation would have had, in my view, extremely serious consequences. Secondly, he clearly regarded a challenge to the police (and Crown, for that matter) as essential and very important. The fact that Mr. Jenkins was unable to bring this challenge after the matter adjourned and he was discharged cannot be laid at Mr. Jenkins' feet. viii) Results Obtained - Due to his discharge Mr. Jenkins was unable to see the matter through to a final result. His evidence is that the work done by him in the Provincial Court (after the trial was converted to a preliminary hearing) and the legal research brief prepared by him were used by subsequent counsel in the Supreme Court. I accept that as likely, and that Mr. Jenkins' services, in all probability, contributed to Mr. Agnew's ultimate success. [26] Considering all of the circumstances of the matter together with the specific concerns and complaints of Mr. Agnew and viewing them in the context of the Act, I have concluded that the fees charged by Mr. Jenkins and his firm were appropriate. [27] That being the case, the accounts are confirmed and the firm is entitled to costs, both of this hearing and of the application by Mr. Agnew to extend the time for review. "Master D. Baker"