R. v. McCallen

R. v. McCallen Collection Decisions of the Court of Appeal Date 1999-01-27 Docket numbers C26399 Judges Krever, Horace; Charron, Louise Vivianne; O’Connor, Dennis Subject Criminal Decision Content DATE: 19990127 DOCKET: C26399 COURT OF APPEAL FOR ONTARIO KREVER, CHARRON and O'CONNOR JJ.A. BETWEEN: ) ) P. Andras Schreck HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) and ) David Lepofsky ) for the respondent JAMES BRUCE McCALLEN ) ) Appellant ) ) Frank Addario and - and - ) Scott K. Fenton ) for the Intervener CRIMINAL LAWYERS’ ASSOCIATION ) ) Intervener ) Heard: December 15, 16 and 17, ) 1998 O’CONNOR J.A.: [1] After a trial by a judge and jury, the appellant was convicted of sexual assault and sentenced to imprisonment for a term of two and one-half years. The appellant seeks a new trial on the ground that Paisley J., who conducted all of the pre-trial proceedings in the Ontario Court (General Division) and who also presided at the appellant’s trial (the “trial judge”), denied the appellant his right under s. 10(b) of the Canadian Charter of Rights and Freedoms to be represented at his trial by the counsel of his choice. [2] The appellant submits that three rulings of the trial judge made during the course of the pre-trial proceedings individually and collectively led to the denial of his right under s. 10(b). First, on November 30, 1995, the trial judge fixed the trial date for a date on which he knew the appellant’s counsel of choice was not available (as it turned out, the trial did not proceed on that date); next, the trial judge initiated and maintained until after the appellant’s trial the possibility of a contempt proceeding against the appellant’s counsel of choice; and finally, because of the possibility of a contempt proceeding the trial judge refused the appellant’s motions to have his counsel of choice represent him at his trial. [3] For the reasons set out below, I am satisfied that the appellant was wrongfully denied the counsel of his choice, that his right under s. 10(b) of the Charter was breached and that the appropriate remedy is a new trial. FACTS November 30, 1995 [4] On November 30, 1995, the appellant made his first appearance in the assignment court in the Ontario Court (General Division) before the trial judge. The appellant appeared with his lawyer, Mark Kerbel, who had represented him on the same charge at the preliminary hearing and at the pre-trial which had been held earlier in the day before another judge. [5] Mr. Kerbel asked that the case be adjourned until December 15, 1995, to fix a date for trial. Although Mr. Kerbel had received a Legal Aid certificate, he told the trial judge that he did not consider himself retained because of the situation involving the Legal Aid Plan and the Law Society; he expected that the retainer issue would be cleared up by December 15. The trial judge requested that Mr. Kerbel set a target date for the trial and Mr. Kerbel said that he would not be available until the end of March 1996 because he was starting a five-week murder trial on January 15, 1996, following which he had other trials scheduled involving accused persons in custody. [6] The trial judge stated that the appellant’s trial must be scheduled for some time within the next three months, and suggested that the appellant obtain another lawyer. Mr. Kerbel told the trial judge that he was the appellant’s counsel of choice. Despite this, the trial judge scheduled the trial for January 31, 1996, with or without counsel, citing the public interest in seeing serious cases scheduled in a reasonable period of time. The trial judge commented: “This is alleged to have occurred in October 1994; it is long enough. It will be tried within 3 months if I have anything to say about it. So I am setting the trial date.” The trial judge then asked Mr. Kerbel to assist the appellant and told the appellant that he had an obligation to find a lawyer who was available to represent him on January 31, 1996 if he wished to have counsel. January 31, 1996 [7] On January 31, 1996, the appellant appeared before the trial judge with a lawyer, Mary Misener. Ms. Misener told the court that she was speaking on behalf of Mr. Kerbel, and was not herself retained by the appellant. She indicated that the appellant wished to have Mr. Kerbel act for him and asked the Court to adjourn the matter to a date when Mr. Kerbel was available. In response to a question from the trial judge, Ms. Misener indicated that she was unable to act for the appellant as she was eight months pregnant and recovering from an illness. [8] Neither Mr. Kerbel nor Ms. Misener had filed the material required by the Rules of Criminal Procedure in support of a motion requesting an adjournment of the trial date. Ms. Misener explained that Mr. Kerbel believed that he did not have standing to bring such a motion because the matter had been scheduled with or without counsel. She also informed the court that Mr. Kerbel had now been retained by the appellant. [9] The trial judge asked Crown counsel for her position on the request for an adjournment, and Crown counsel stated that she opposed it, noting that the Crown witnesses were present and the Crown was prepared to proceed. The trial judge then dismissed the request and ordered the appellant to proceed to trial immediately with or without counsel. [10] The trial judge asked Ms. Misener whether the appellant was aware that Mr. Kerbel would not be present. Ms. Misener spoke to the appellant and informed the court that the appellant said that Mr. Kerbel had told him that the matter would be remanded until Mr. Kerbel was available. The trial judge then stated that he would consider whether he should require Mr. Kerbel to show cause why he should not be cited for contempt of court for deceiving his client about what would happen on that date. Crown counsel expressly took no position on the issue of contempt. The trial judge ordered that the transcripts of the day’s proceedings be forwarded to the Crown Law Office - Criminal and that someone from that office review them and assess whether or not Mr. Kerbel should be required to show cause why he should not be found in contempt of court. [11] The trial judge then asked all counsel present in the courtroom to go to the barristers’ lounge to try to find counsel who would be willing to act as amicus curiae at the appellant’s trial. These attempts were unsuccessful. Eventually it was determined that there was not a jury panel available to hear the case on January 31, 1996 and for that reason the matter was adjourned to set a new trial date. Subsequently, the next trial date was scheduled for April 29, 1996. Mr. Kerbel was available on that date and it continued to be the appellant’s wish to have Mr. Kerbel act as his counsel. March 1, 1996 [12] On March 1, 1996, Mr. Lindsay of the Crown Law Office and Mr. Kerbel attended before the trial judge and made submissions regarding the contempt issue. Mr. Lindsay discussed two possible bases for a finding of contempt: Mr. Kerbel’s failure to attend on January 31, 1996 and Mr. Kerbel’s failure to adequately protect his client by either not having arranged for other counsel to represent his client or by misleading his client as to what would happen on January 31, 1996. [13] Mr. Lindsay submitted that Mr. Kerbel’s absence from court was not contempt, as Mr. Kerbel had informed the court on November 30 that he would not be available on January 31, 1996. Further, Mr. Lindsay stated that there was no admissible evidence before the court to support the second possible basis for a finding of contempt. In particular, he stated that what Ms. Misener had reported to the court that the appellant had told her that Mr. Kerbel had told him was hearsay. In response, the trial judge suggested that the appellant might be compelled to give evidence under oath about what Mr. Kerbel had told him. Mr. Lindsay suggested that such an inquiry might intrude into the solicitor and client privilege and could create a conflict between the solicitor and his client. [14] Mr. Lindsay suggested that, bearing in mind that there was an existing solicitor-client relationship and that it was clear that the appellant wished Mr. Kerbel to act for him at his trial, an alternative method of dealing with the issue was to refer it to the Law Society. On three occasions, Mr. Lindsay stated that an innocent explanation of the conversation that had been reported to the court by Ms. Misener on January 31 could resolve the matter. Finally, he suggested that if the issue of contempt was left open, it be dealt with after the appellant’s trial. [15] Mr. Kerbel indicated that if the trial judge was considering compelling the appellant to testify against him, a conflict of interest would be created. Mr. Kerbel stated that if he was in a position of having to deal with a contempt proceeding in which his client would be a witness against him after the trial, it would be impossible for him to continue to act for the appellant. After hearing the submissions of counsel, the trial judge appears to have determined that the contempt matter, including the possibility of compelling the appellant to testify about his conversation with Mr. Kerbel, deserved further consideration and that he would defer his consideration until after the appellant’s trial. March 29, 1996 [16] On March 29, 1996, Mr. Kerbel appeared to request an adjournment of the appellant’s trial, scheduled for April 29, 1996, because of the unavailability of an important witness and to seek permission to withdraw as the appellant’s counsel if he continued to be in a position of conflict. The trial judge questioned how Mr. Kerbel could make the request for an adjournment given his declared conflict of interest arising from the possibility of the contempt proceeding. Mr. Kerbel asked that the contempt matter be resolved sooner rather than later to avoid problems between the appellant and himself and also because it was a difficult matter to have hanging over his head indefinitely. He did not agree with Mr. Lindsay’s suggestion, made during the March 1 appearance, that the contempt issue be deferred until after the appellant’s trial. The trial judge did not agree to deal with the contempt matter before the appellant’s trial and Mr. Kerbel then asked for and was granted permission to withdraw as counsel for the appellant. The trial judge adjourned the request to adjourn the appellant’s trial so that the appellant could file the required materials. April 16, 1996 [17] On April 16, 1996, the appellant appeared with Ralph Steinberg as counsel. Mr. Steinberg reminded the Court of Mr. Lindsay’s submission on March 1, 1996 that the issue of contempt might be resolved if there was an explanation for what Mr. Kerbel had allegedly told the appellant prior to the appearance in court on January 31, 1996. Mr. Steinberg filed an affidavit sworn by the appellant after receiving independent legal advice, that stated that the appellant had misspoken himself in his conversation with Ms. Misener in the courtroom on January 31. The appellant swore that Mr. Kerbel had explained to him that the January 31, 1996 trial date had been set with or without counsel, and that it would be up to the presiding judge to decide whether an adjournment should be granted. He also stated that he wished to have Mr. Kerbel reinstated as his counsel. [18] Mr. Steinberg took the position that since an explanation had now been offered, the contempt matter should be resolved so that Mr. Kerbel could act for the appellant. Mr. Steinberg invited the trial judge to hear submissions from Mr. Lindsay who was available in court. The trial judge refused to hear any submissions on the contempt matter stating: I have made a decision, and I am not going to hear further argument, with respect, after I have made a decision. The decision is not made today. It was made previously. Mr. Kerbel has withdrawn from the case because of the conflict, and a hearing will be held to determine the issues that have already been defined after Mr. McCallen’s trial has been completed. That has been decided. [19] The trial judge then directed that he be seized of all pre- trial motions regarding the case and the charge against the appellant was adjourned to April 29, 1996 to schedule a date for trial. April 29, 1996 [20] On April 29, 1996, Mr. Kerbel appeared with the appellant. He indicated to the court that, in view of the affidavit that had been filed, he no longer considered himself to be in a position of conflict with the appellant. He pointed out that he had acted for the appellant at the preliminary inquiry, that he was familiar with the case and that he had known the appellant for many years. He said that the appellant had expressed over and over that he wished Mr. Kerbel to act for him and that the appellant did not perceive there to be any conflict. [21] Mr. Kerbel made two requests; the first was that he be permitted to act on the understanding that there might be some proceeding relating to the contempt following the appellant’s trial. The trial judge refused this request stating: I am of the view that having expressed the conflict as a reason to withdraw, and having been permitted to withdraw, it is not appropriate to accept that Mr. Kerbel, of his own motion, can return as counsel for this accused. And accordingly I feel that I am obliged to rule that Mr. Kerbel cannot be counsel for this accused. [22] Mr. Kerbel also requested that the court deal with the contempt issue before the appellant’s trial to enable the appellant to have counsel of his choice and also because from his personal perspective it was “hanging over my head unduly.” The trial judge also refused this request stating that the issue had been determined at an earlier time. [23] The trial judge adjourned the appellant’s case to May 14, 1996 to fix a trial date, peremptory to the appellant. May 14, 1996 [24] On May 14, 1996, the appellant appeared with Mr. Steinberg. Mr. Steinberg requested an adjournment, explaining that he had made inquiries from the Legal Aid Plan respecting a transfer of the appellant’s retainer and was still awaiting a response. The Crown agreed to the adjournment. Mr. Steinberg emphasized once again that Mr. McCallen “wishes to have Mr. Kerbel act as his counsel.” The trial judge dismissed the request for an adjournment, and fixed the trial date for September 16, 1996. September 13, 1996 [25] On September 13, 1996, Mr. Steinberg, on behalf of the appellant, brought a motion to adjourn the trial scheduled for September 16 and informed the trial judge that the appellant would be bringing a motion alleging that the appellant had been denied the counsel of his choice. Mr. Steinberg submitted that the motion to adjourn should be heard by another judge. The trial judge refused to disqualify himself and dismissed the motion for an adjournment. September 16, 1996 [26] On September 16, 1996, Mr. Steinberg brought a motion asking the trial judge to rescind his ruling of April 29 that prohibited Mr. Kerbel from acting as counsel for the appellant, and to adjourn the trial to permit Mr. Kerbel to come back on the record and represent the appellant. Mr. Steinberg asked to have this motion heard by another judge. The trial judge refused. [27] On the motion, Mr. Steinberg argued that the appellant was denied counsel of his choice because the trial judge erred in refusing the request, made on April 29, to have Mr. Kerbel act for the appellant. The trial judge dismissed the argument and stated: I am satisfied it is clear that at the time that Mr. Kerbel applied to appear as counsel of record, the issue of his conflict was still in existence. Accordingly, the issue of denial of Mr. McCallen’s right to counsel is specifically explained in relation to his desire to have Mr. Kerbel, due to the fact there was an outstanding conflict of interest which prevented Mr. Kerbel from appearing as counsel for Mr. McCallen at this trial. [28] Mr. Steinberg also argued that the trial judge had denied the appellant’s right to counsel of choice on November 30, 1995 by ordering that the trial date be set for January 31, 1996, a date when Mr. Kerbel was unavailable. In rejecting this argument the trial judge referred to a 90-day rule for trying cases in the General Division and said: The fact is the accused did have the right to choose any lawyer qualified to practise law in the Province of Ontario, provided that lawyer was available within the time frame the court set down. [29] A second motion was then brought to have the trial judge recuse himself from presiding at the appellant’s trial on the basis of reasonable apprehension of bias. This motion was also dismissed, and the trial began. The appellant was represented by Mr. Steinberg, and was convicted and sentenced to two and a half years in prison. February 17, 1997 [30] On February 17, 1997, over four and one-half months after the conviction and sentencing of the appellant, the trial judge held a hearing to decide whether Mr. Kerbel should be required to show cause why he should not be found in contempt. Neither Mr. Kerbel nor counsel on his behalf attended. Mr. Lindsay made submissions for the Crown and in the end the trial judge accepted Mr. Lindsay’s submission that the contempt matter against Mr. Kerbel should not proceed. DISCUSSION The Section 10(b) Right [31] Section 10(b) of the Charter provides: 10. Everyone has the right on arrest or detention ... (b) to retain and instruct counsel without delay and to be informed of that right; ... [32] It is well established that s. 10(b) includes not only the right to retain counsel but the right to retain the counsel of the accused’s choice and the right to be represented by that counsel throughout the proceedings. [33] In Re Regina and Speid (1983), 8 C.C.C. (3d) 18 (Ont. C.A.), Dubin J.A. described this as a fundamental right. At p. 20, he said: The right of an accused to retain counsel of his choice has long been recognized at common law as a fundamental right. It has been carried forth as a singular feature of the Legal Aid Plan in this province and has been inferentially entrenched in the Charter of Rights which guarantees everyone upon arrest or detention the right to retain and instruct counsel without delay. However, although it is a fundamental right and one to be zealously protected by the court, it is not an absolute right and is subject to reasonable limitations. [34] There are sound reasons why this right was considered to be a fundamental component of the criminal justice system well before the enactment of the Charter and why it was recognized as a right deserving of constitutional protection in the Charter. The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsels’ ethical constraints, in the clients’ best interests. The law recognizes the uniqueness of this confidential relationship by providing special protection from compelled disclosure of information that is exchanged between clients and their counsel. [35] In addition, the relationship of counsel and client requires clients, typically untrained in the law and lacking the skills of advocates, to entrust the management and conduct of their cases to the counsel who act on their behalf. There should be no room for doubt about counsel’s loyalty and dedication to the client’s case. It is human nature that the trust and confidence that are essential for the relationship to be effective will be promoted and more readily realized if clients have not only the right to retain counsel but to retain counsel of their choice. [36] The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf. [37] In addition to constituting a valuable personal right to clients, s. 10(b) provides a right that is an important component in the objective perception of fairness of the criminal justice system. Criminal proceedings are adversarial in nature and pit the accused against the authority of the state. Without adequate safeguards the resulting contest may be unfairly weighted in favour of the state. The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them. Including with this fundamental right to counsel, the additional right to choose one’s own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent. [38] The corollary to this point, which is central to this case, is that the perception of fairness will be damaged, and in many cases severely so, if accused persons are improperly or unfairly denied the opportunity to be represented by the counsel they choose. [39] Although it may be said that in some cases there will not be any practical difference whether an accused is represented by one counsel rather than another, nevertheless, the intangible value to the accused and the symbolic value to the system of criminal justice of the s. 10(b) right are of fundamental importance and must be vindicated when breached. [40] Nevertheless, the right to retain counsel of choice is not an absolute right; it is obviously limited to those counsel who are competent to undertake the retainer and are willing to act. There are two further limitations on the right that are in issue on this appeal: the first is the requirement that counsel be available to represent the client within a reasonable period of time and the second is the requirement that counsel be free of any disqualifying conflict of interest. [41] The appellant submits that three rulings of the trial judge individually and collectively resulted in a denial of representation by counsel of his choice. I will deal with each of these rulings separately. 1. The January 31, 1996 Trial Date [42] On November 30, 1995, the trial judge refused to schedule a trial date at the end of March 1996, when Mr. Kerbel, the appellant’s counsel of choice, was available. Rather, he scheduled the trial, with or without counsel, for January 31, 1996 realizing that Mr. Kerbel would not be available to represent the appellant on that date. [43] As it turned out, this issue was overtaken by other events. The trial did not proceed on January 31, 1996; it was adjourned and eventually proceeded on September 16, 1996. Although it may be said that if the trial judge had fixed a trial date at the end of March 1996, as Mr. Kerbel requested, the appellant would have been represented by counsel of his choice at that time, the reason the appellant was not represented by counsel of his choice at his trial in September 1996 was not the initial scheduling of the trial for January 31, 1996 but rather was the result of later events which I discuss below. It is therefore not necessary to decide whether any breach of the appellant’s right under s. 10(b) of the Charter occurred because of the November 30, 1995 ruling fixing the trial date for January 31, 1996. [44] Although that disposes of this issue, the January 31 trial date was the triggering event for what followed and I think it useful to comment upon the manner in which the trial judge exercised his discretion in setting that date. [45] The law is clear that the decision to fix a date for trial is discretionary and that in choosing a date the court must act judicially and balance a number of factors including the availability of an accused’s counsel of choice within a reasonable period of time. Many of the same factors come into play in decisions whether to adjourn a trial date in order to permit an accused’s counsel of choice to be available. The emphasis is on the reasonableness of the delay involved in accommodating the accused’s choice; if the counsel of choice is not available within a reasonable time, then the rights of the accused must give way to other considerations and the accused will be required, if he or she chooses to be represented, to retain another counsel who is available within a reasonable period of time: see R. v. Lai, [1991] O.J. No. 725 (Gen. Div.); Barette v. The Queen (1976), 29 C.C.C. (2d) 189 (S.C.C.) and R. v. Smith (1989), 52 C.C.C. (3d) 90 (Ont. C.A.). [46] In determining what is a reasonable period of time, the court will balance many factors including the reason counsel is not available sooner, the previous involvement of the particular counsel in the case, the public interest in having criminal cases disposed of in an expeditious manner, the age and history of the case, the availability of judicial resources and the best use of courtroom facilities, the availability of the complainant and witnesses, the availability and use of Crown counsel and law enforcement officers and the potential impact of the scheduling decisions on the rights of an accused under s. 11(b) of the Charter guaranteeing a trial within a reasonable period of time. See Smith, supra, at p. 93; Lai, supra. [47] There is no formula that can be rigidly applied in balancing these different factors and what is reasonable in one case may not be reasonable in another. Rigid rules defeat the very nature of the discretionary decision that is required. However, guidelines are helpful because they provide a framework within which decisions can be made and bring a measure of predictability to scheduling decisions that will assist the various participants in the process. It is the trial courts that are in the best position to assess and balance the circumstances and resources that are available in a particular region and to develop the guidelines that make the most sense for that region. Guidelines should be used as such and should not be applied in an arbitrary or inflexible fashion, particularly when a trial date is being set that will deny an accused person counsel of choice. See R. v. Shute (1982), 66 C.C.C. (2d) 354 (N.S.C.A.). [48] On the appearance before the trial judge on November 30, 1995, it was clear that the appellant’s choice of counsel was Mr. Kerbel who had acted for him at the preliminary hearing and the pre-trial. Because of his schedule Mr. Kerbel was not available to represent the appellant at trial until the end of March 1996, four months hence. The trial judge stated that the trial must be scheduled within the next three months and fixed the trial date for January 31, 1996, directing that if the appellant wished counsel he would have to obtain someone other than Mr. Kerbel. [49] In my view, this was an unreasonable exercise of the trial judge’s discretion. The four-month delay that would have been necessitated by Mr. Kerbel’s schedule was not unreasonable. This was the first time that the appellant had appeared in the Ontario Court (General Division). Mr. Kerbel was unavailable because he would be defending an accused in a previously scheduled murder case and because he had scheduled other trials for accused persons in custody during the period up to the end of March. There was no suggestion of any desire by the appellant or Mr. Kerbel to delay or frustrate the course of the proceedings; the Crown did not appear to argue against the delay nor did the Crown suggest any difficulties with witnesses that would arise if the trial were scheduled at the end of March; nor could it be realistically said that scheduling the trial for the end of March could have any effect on the accused’s rights under s. 11(b) of the Charter. [50] The trial judge’s decision appears to have been motivated by a rigid adherence to what he later referred to as a 90-day rule, i.e. a trial must be heard within 90 days of the first appearance in the Ontario Court (General Division). Counsel on this appeal were not aware of such a rule and it may be that the trial judge was rigidly applying a 90-day guideline. [51] On appeal, the Crown argued that the trial judge was justified in fixing the January 31, 1996 date because Mr. Kerbel had not yet been retained by the appellant. I do not agree. Mr. Kerbel informed the court on November 30 that because of certain difficulties with Legal Aid he had not yet been formally retained. Mr. Kerbel was agreeable to one of two alternatives: adjourn the case for two weeks to permit those difficulties to be cleared or set a trial date at the end of March 1996. Both alternatives were reasonable. It was clear that the accused wanted Mr. Kerbel to act for him and there was no reason to expect that Mr. Kerbel would not be retained (in fact he was retained before the January 31, 1996 appearance). For these reasons, in my view, it was not reasonable for the trial judge simply to fix a trial date of January 31, 1996 and not attempt to approach the scheduling issue in a co-operative manner so that the appellant could be given a reasonable opportunity to have Mr. Kerbel represent him. 2. The Contempt Issue [52] During the appearance on January 31, 1996, the trial judge stated that he would consider citing Mr. Kerbel for contempt and asked that someone from the Crown Law Office - Criminal, assess whether Mr. Kerbel should be required to show cause why he should not be found in contempt. The trial judge’s consideration of this issue remained pending for over a year, until February 17, 1997, when he decided not to proceed with a contempt hearing. [53] The law with respect to contempt is conveniently set out by Laskin J.A. in R. v. Glasner (1994), 93 C.C.C. (3d) 226 (Ont. C.A.). Contempt of court is a common law crime and consists of acts which obstruct or interfere with the administration of justice or which tend to do so, and acts which show disrespect for the court and its processes. In R. v. Carter, [1993] O.J. No. 3135 (C.A.), this court acquitted a lawyer of contempt because it could not find, “that the appellant’s misconduct caused a serious, real, imminent risk of obstruction of the administration of justice accompanied by a dishonest intention or bad faith.” If a court is in doubt whether conduct complained of amounts to “contempt” the complaint will fail. It has also been said that the “actus reus for the offence of the criminal contempt must be conduct which causes a serious public injury.” See U.N.A v. Alberta (Attorney General) (1992), 71 C.C.C. (3d) 225, per Cory J. at p. 238. [54] In Glasner, Laskin J.A. set out the mental requirement for criminal contempt at p. 244 as follows: In short, the fault requirement for criminal contempt calls for deliberate or intentional conduct, or conduct which demonstrates indifference, which I take to be akin to recklessness. Nothing short of that will do. [55] Contempt, it has often been said, should be used sparingly and only in serious cases. It should be used with great restraint and only in those circumstances where it is required to protect the rule of law. See Izuora v. The Queen, [1953] A.C. 327 (P.C.), U.N.A. v. Alberta (Attorney General), supra, and Glasner, supra, at p. 242. [56] The procedure to be followed for dealing with contempt matters is discussed by Lamer C.J.C. in R. v. K. (B.) (1995), 102 C.C.C. (3d) 18. A judge may initiate contempt procedures; however, unless there are unusual circumstances which require immediate action, notice should be given to the person involved that he must show cause why he should not be found in contempt of court, followed by an adjournment to offer the person an opportunity to be advised by counsel and, if he chooses, to be represented by counsel. [57] In cases where the issue of contempt is raised by a judge but is not dealt with immediately and notice is given of a hearing, the best procedure is to refer the matter to another judge to be tried in the normal way of a criminal non-jury case. See McKeown v. The Queen (1971), 2 C.C.C. (2d) 1 per Laskin J. [58] In my view, the trial judge erred in two respects with regard to the manner in which he dealt with the issue of the alleged contempt by Mr. Kerbel. First, when he received the submission of Mr. Lindsay on March 1, 1996 that Mr. Kerbel’s non-attendance could not constitute contempt because Mr. Kerbel had informed the trial judge that he would not be present on that date and that there was no admissible evidence that Mr. Kerbel had misled his client, he should have ended his initiative to consider whether to institute a contempt proceeding. Any doubt about that was removed on April 16, 1996, when Mr. Steinberg filed the appellant’s affidavit indicating that Mr. Kerbel had in fact told the appellant that the trial might go ahead on January 31, 1996 and that it was up to the court to decide whether the case would be adjourned or not. It was clear from that affidavit that Mr. Kerbel had not misled the appellant and the appellant understood that he might have to be tried without the assistance of counsel. [59] The trial judge had also raised Mr. Kerbel’s failure to arrange for another counsel to represent the appellant at the trial that was scheduled for January 31, 1996 as a possible basis for a finding of contempt. Mr. Kerbel had not undertaken to do so. On November 30 the trial judge had set January 31 as a date for trial with or without counsel. In his affidavit, the appellant said that he understood from Mr. Kerbel that when he attended in court on January 31, he might have to proceed with his trial without counsel. The appellant made no complaint against Mr. Kerbel for not arranging for other counsel. After the affidavit was filed on April 16, there was no longer any possible basis for a finding of contempt based on an allegation that Mr. Kerbel failed to arrange for another counsel to appear on January 31. [60] In view of the appellant’s affidavit there was virtually no chance that Mr. Kerbel would be held in contempt by an independent and objective judge. This was not a situation that posed a serious or imminent risk to the administration of justice. The trial judge should have heeded the admonishment in the cases that contempt proceedings should be used sparingly, with great restraint and only in the most serious cases when necessary to protect the rule of law. The trial judge, in this case, should have ended his consideration of the contempt matter on April 16 at the latest. [61] The second error the trial judge made with respect to the contempt issue was delaying his consideration of whether or not he would require Mr. Kerbel to show cause until after the appellant’s trial. On March 1, 1996, the trial judge left hanging two decisions: his consideration of whether to initiate contempt proceedings against Mr. Kerbel and his consideration of whether the appellant would be compelled to testify against Mr. Kerbel at the contempt proceeding. Although there was a serious issue whether the appellant could be compelled to testify about his conversation with Mr. Kerbel, the predictable result of the trial judge taking these two positions was that Mr. Kerbel would have to withdraw as the appellant’s counsel because he faced the prospect that his client would be called as a witness against him in a criminal proceeding and would give evidence contradictory to his evidence. The unfortunate aspect was that the appellant repeatedly told the court that Mr. Kerbel was his counsel of choice and the trial judge’s decision to delay his consideration of the contempt matter until after the trial had the effect, at that point, of denying the appellant the benefit of that counsel. [62] The trial judge was asked on two occasions to deal with the contempt matter before and not after the trial, so that Mr. Kerbel could represent the appellant. On April 29, 1996, after the appellant’s affidavit had been filed and it was understood that the trial would not take place for several months, the trial judge, if he was determined to proceed with the contempt matter, should have acceded to the request to have the contempt matter disposed of before the trial. At that point, there was no conflict in the expected evidence between the appellant and Mr. Kerbel, both Mr. Kerbel and the appellant wanted to deal with the matter so that Mr. Kerbel could act for the appellant at his trial and whatever justification there had been for delaying the contempt matter until after the trial no longer existed. [63] When the trial judge finally came to consider the contempt matter many months later on February 17, 1997, he followed Mr. Lindsay’s submission and decided not to proceed. That was the correct decision. There was no reason why that decision could not have been made shortly after the filing of the appellant’s affidavit on April 16, 1996 and thereby have avoided denying the appellant representation by counsel of his choice at trial. [64] The trial judge’s decision to hold open his consideration of whether to institute contempt proceedings against Mr. Kerbel until after the appellant’s trial became the basis upon which the trial judge refused the motions on April 29, 1996 and September 16, 1996 to have Mr. Kerbel represent the appellant at his trial. This decision directly contributed to the breach of the appellant’s right under s. 10(b) of the Charter. [65] Finally, it is important to note that the trial judge’s actions resulted in the prospect of a charge of criminal contempt hanging over Mr. Kerbel’s head for a period of over one year. That was unfortunate and unnecessary. 3. The Refusal of the Motions to Permit Mr. Kerbel to Represent the Appellant at his Trial [66] On March 29, 1996, the trial judge granted Mr. Kerbel’s request to be removed as counsel on the record because the appellant might potentially be required to give evidence against him in a contempt proceeding. On April 29, 1996, after the appellant’s affidavit was filed, Mr. Kerbel told the court that he was no longer in a position of conflict and the appellant requested again that Mr. Kerbel be permitted to represent him at his trial. [67] The trial judge refused the request and told the appellant he would have to find another counsel. The trial judge appears to have done so for two reasons: first, in his view, their continued to be a potential or actual conflict; and second, in his view, it was necessary to bring finality to administrative matters of this sort. The appellant made the same request before the start of the trial on September 16, 1996. The trial judge again denied the request and proceeded with the trial. [68] A court should only deny an accused the right to counsel of choice for compelling reasons. In Re R. v. Speid, supra, Dubin J.A. discussed the factors which must be considered before an accused’s counsel of choice is disqualified. At pp. 20-21, he said: In assessing the merits of a disqualification order, the court must balance the individual’s right to select counsel of his own choice, public policy and the public interest in the administration of justice and basic principles of fundamental fairness. Such an order should not be made unless there are compelling reasons. [Emphasis added.] [69] It seems to me that the requirement for compelling reasons should be the same whether a court is considering an order to remove a counsel who has been retained or an order refusing an accused the right to retain a particular counsel to act on his or her behalf. Indeed, in normal circumstances the court plays no role in approving or permitting a counsel to act on behalf of an accused. It happens as a matter of course. It is only in exceptional circumstances where there are concerns about matters such as a conflict of interest or a lack of competence, that may imperil the fairness of a trial or that might undermine the public interest in the administration of justice, that a court will intervene to determine whether a particular counsel may or may not act for an accused. [70] The trial judge refused this request and told the appellant he would have to find another counsel. The trial judge appears to have done so for two reasons: first, in his view, there continued to be a real, potential or actual conflict and second, in his view, it was necessary to bring finality to administrative matters of this sort. The appellant made the same request again before the start of the trial on September 16, 1996. The trial judge once again denied the request and proceeded with the trial. [71] The leading case on conflicts of interest is MacDonald Estate v. Martin (1990), 77 D.L.R. (4th) 249. In that case, the Supreme Court of Canada examined the proper test for determining whether there is a conflict of interest when a lawyer changes from one law firm to another. At p. 254, the court noted that there are three competing values that must be considered: the concern to maintain the high standards of the legal profession and the integrity of our system of justice; ... the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause; and ... the desirability of permitting reasonable mobility in the legal profession. [72] The third principle has no application to this case. In determining whether there was a disqualifying conflict in this case, it is appropriate to consider the first two factors set out in MacDonald Estate. [73] It is also relevant to consider the consent of a client whose interest is potentially adversely affected by the alleged conflict1 recognizing however, that the consent of a client must give way to the public interest and the integrity of the system of justice when there is a legitimate concern about the appearance of impropriety arising from a conflict: see Donaldson Inquest (Re) (1994), 111 D.L.R. (4th) 111 (Ont. Div. Ct.); Goldberg v. Goldberg (1982), 141 D.L.R. (3d) 133 (Ont. Div. Ct.). [74] With these principles in mind, I turn to the situation that existed on April 29, 1996. Mr. Kerbel and the appellant both advised the trial judge that they perceived that there was no conflict of interest. The appellant’s affidavit apparently agreed with Mr. Kerbel’s recollection of the conversation that preceded the appearance in court on January 31, 1996. The appellant continued to indicate that he wished Mr. Kerbel to act for him and Mr. Kerbel was available and willing to do so. The appellant had received independent legal advice. It was Mr. Kerbel who had raised the conflict issue in the first place. The trial judge had heeded his concern and permitted him to withdraw as counsel on the record. After the filing of the affidavit Mr. Kerbel told the court that the concern that led him to withdraw no longer existed. [75] It is important to note that the alleged conflict had nothing to do with any of the evidence to be called at the appellant’s trial. The concern, at its highest, had been that the appellant may have been required to be a witness at a contempt proceeding against Mr. Kerbel and that his version of the conversation relating to the January 31, 1996 appearance might differ from that of Mr. Kerbel. Presumably it was felt that this potential difference might undermine the solicitor- client relationship. When the appellant’s affidavit was filed, the potential for difference in evidence disappeared. Even if there continued to be a possibility of a contempt proceeding at which the appellant would be called as a witness against Mr. Kerbel, I fail to see how, in circumstances in which the appellant wanted Mr. Kerbel to act for him at his trial and Mr. Kerbel was content to do so, such a possibility could detrimentally affect the standards of the legal profession or undermine the integrity of the administration of justice. [76] The Crown argued on this appeal that if the appellant was cross-examined, he might change his evidence, raising again the spectre of a conflict between the appellant and Mr. Kerbel. This, in my view, is pure speculation and falls far short of being a compelling reason for denying the appellant the counsel of his choice. In my view, there was no actual or potential conflict of interest that justified the trial judge in refusing the appellant’s request to have Mr. Kerbel act on his behalf. [77] The trial judge also erred in refusing the request to have Mr. Kerbel represent the appellant on the basis that the issue had been decided previously. The circumstances had changed with the filing of the appellant’s affidavit which put to rest any concern about why Mr. Kerbel should not act for the appellant. The trial judge responded to this critically important new circumstance by stating that he had decided the issue previously and refused to hear submissions. He was wrong in doing so. [78] For the above reasons, I am satisfied that the trial judge erred in refusing the motions to have Mr. Kerbel represent the appellant and in doing so he breached the appellant’s right under s. 10(b) of the Charter to be represented by the counsel of his choice. Remedy [79] The appellant seeks a new trial to remedy the denial of his right to counsel of choice guaranteed by s. 10(b) of the Charter. The authority to order a remedy for a breach of the Charter is found in s. 24(1) which confers a discretionary power on the court to provide “such remedy as the court considers appropriate and just in the circumstances.” [80] As I have set out above, the right to counsel of choice is a fundamentally important right to the accused and to the system of criminal justice. The denial of that right, constitutionally protected by s. 10(b) of the Charter, is a serious error in law. In Re R. v. Speid, supra, Dubin J.A. at p. 20 emphasized the importance of the right and said that it must be “zealously protected by the Court.” [81] When the Charter right to counsel of choice has been violated and an accused has been convicted, the most obvious way of vindicating and protecting the right is by ordering a new trial at which the accused may be represented by counsel of choice. [82] In determining what is an appropriate remedy for the violation of the s. 10(b) right the reasoning of the Supreme Court of Canada in R. v. Tran (1994), 92 C.C.C. (3d) 218 is instructive. In that case, the Supreme Court held that the accused had been denied his right to the assistance of an interpreter guaranteed by s. 14 of the Charter. At trial, the evidence of one witness was only summarized in the accused’s language rather than translated and an exchange between the trial judge and the interpreter was not interpreted at all. Lamer C.J.C., for the court, held that the breach of the s. 14 right was a serious error of law and that as a general rule, the appropriate remedy for breaches of s. 14 of the Charter will be a new trial or a new hearing of the issue at which the right was violated. [83] Significantly, in Tran, there was no evidence of actual prejudice resulting from the lapses in proper interpretation. Lamer C.J.C. considered the ‘no prejudice’ issue in context of his analysis that led to the conclusion that a breach had occurred. However, his comments on that issue provide the background against which he determined that a new trial was the appropriate remedy. In particular, he said the following at p. 261: ... The uncertainty associated with the question of what might have happened had the accused received the quality of interpretation to which he was entitled under s. 14 of the Charter demonstrates that courts must not engage in speculating about the utility or non-utility of proper interpretation. What is important is that the appellant was in need of interpreter assistance ... And further, at pp. 261-2: ... For the Court of Appeal to say after the fact that the poor interpretation received by the appellant made no difference to the outcome of the case is, in my opinion, to engage in the kind of second-guessing and speculation which I have suggested is inappropriate in determining whether there has been a breach of s. 14 of the Charter. Irrespective of whether the interpreter’s evidence actually affected the appellant’s right to full answer and defence, something we cannot know with certainty, the appellant was entitled under s. 14 to hear fully and contemporaneously what was being said on the topic of his weight. [84] The conclusion that I draw from Tran, with respect to the issue of remedy, is that because a breach of s. 14 of the Charter is a serious error in law and a violation of an important constitutional right, that violation will normally be vindicated by ordering a new trial or hearing. [85] Although the Charter right involved in this case is different from that in Tran, the breach that occurred in this case was in some ways more serious. The appellant had repeatedly requested that Mr. Kerbel be permitted to represent him at his trial; Mr. Kerbel was prepared to accept the retainer and was available to appear when the trial was to take place. The trial judge’s reason for denying the appellant his counsel of choice was the very situation he had created: his consideration of the possibility of a contempt proceeding and his insistence on leaving that consideration pending until after the appellant’s trial. As I have held, he was wrong in doing so. In my view, the damage to the appearance of fairness caused by that conduct is significant and the violation of the right, in these circumstances, is serious. [86] The Crown argues that a new trial should only be ordered if there is actual prejudice in the conduct of the trial resulting from the denial of the right to be represented by counsel of choice. The Crown submits, in this case, that the appellant was vigorously defended by competent counsel and that there is no basis for believing that the result would be any different if there is a new trial at which the appellant is represented by counsel of his choice. I disagree that it is necessary to find actual prejudice before making an order directing a new trial. [87] There are cases, such as Tran, where the breach itself is such that, even absent a demonstration of actual prejudice, a new trial is required to protect and vindicate the right that has been breached and to ensure the perception of fairness of the proceeding. This reasoning is consistent with the rationale that has been applied in cases in which this court has refused to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code,2 and ordered new trials because there has been a miscarriage of justice resulting from the appearance of unfairness. [88] In R. v. Laws (1998) 165 D.L.R. (4th) 301, the appellant had been improperly excluded from the courtroom during part of his trial. There was no proof of prejudice resulting from the exclusion. At p. 332, this court said the following: The perceived fairness of the criminal justice system is its most vital characteristic. Public confidence requires public scrutiny wherever possible. Private trials which exclude the accused are antithetical to this core value. Where the circumstances of the exclusion of the accused are such as to inflict significant damage on the appearance of justice, the question is not whether there is prejudice to the accused. Rather, the issue is the harm to the criminal justice system itself. In such cases the court should refuse to apply this proviso. [The curative proviso – s. 686(1)(b)(iii) of the Criminal Code.] [89] This court has also declined to invoke the curative proviso and has ordered new trials in cases in which there has been undue interference in a trial by the trial judge, and the interference has seriously impaired the appearance of fairness of the trial. In these situations this court has held that the strength of the case against the appellant, and inferentially the failure of the appellant to demonstrate actual prejudice, is not an answer to an argument that there must be a new trial. The effect of the reasoning is that the damage that is caused to the appearance of fairness trumps the need to show prejudice. [90] In R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), leave to appeal to S.C.C. refused loc cit., Martin J.A. set out the test at p. 232: The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial. [91] See also R. v. Stewart (1991), 62 C.C.C. (3d) 289 (Ont. C.A.) and R. v. Turkeiwicz, Barrow and MacNamara (1979), 50 C.C.C. (2d) 406 (Ont. C.A.). [92] The same approach was adopted by this court in the context of a civil case, Baker v. Huchinson et al (1976), 13 O.R. (2d) 591 (C.A.), where Dubin J.A. stated at pp. 596-7: While it would appear that the plaintiff’s case was tenuous at best, the conduct of the trial cannot be dependent on the merit of the cause. Every litigant is entitled to have his case fully presented and fairly considered. [93] I do not view this as a case in which it is necessary for the appellant to demonstrate prejudice of the sort contended for. Indeed, in most cases of this sort it will be almost impossible for an appellant to do so unless it can be shown that counsel who did represent an accused was incompetent. The exercise of comparing how one counsel conducted a trial, in all of the intricate detail involved, with how another counsel might have conducted the same trial, will be fraught with uncertainty and would involve the type of second-guessing and speculation that Lamer C.J.C. considered inappropriate in Tran. [94] In any event, a requirement that there be actual prejudice overlooks the damage that has occurred to the intangible value that an appellant may place on the right to have counsel of choice as well as the damage to the appearance of fairness that results from the denial of that right. [95] Finally, the Crown argued that a declaratory order or an award of damages, if any could be established in a civil suit, would be more appropriate remedies for the breach of the appellant’s s. 10(b) right. I disagree. From the appellant’s standpoint, civil litigation can be expensive, time-consuming and uncertain of result. In many cases it would be unrealistic to expect a convicted accused whose s. 10(b) right has been breached to have the resources or the inclination to pursue a separate civil proceeding. In those circumstances, the breach would pass without remedy and the damage to the appearance of fairness and the integrity of the system would not be vindicated. [96] In summary, I am satisfied that the breach in this case was serious, that it damaged the appearance of fairness of the proceeding against the appellant and that despite the lack of a evidence of actual prejudice, the appropriate remedy is a new trial. Other Grounds [97] The appellant also argued that even if there was not a breach of the appellant’s s. 10(b) right to counsel of choice there should be a new trial because the way in which the proceedings unfolded compromised the appearance of fairness. It is not necessary to address this ground of appeal. [98] The appellant also raised two grounds of appeal with respect to the charge to the jury. We did not call upon the Crown to respond to these grounds and I find no merit in them. CONCLUSION [99] I would therefore allow the appeal and direct that there be a new trial. Released: January 27, 1999 _______________________________ 1 The Law Society of Upper Canada’s Rules of Professional Conduct provide the following: Rule 5 – The lawyer must not advise or represent both sides of a dispute and, save after adequate disclosure to and with the consent of the client or prospective client concerned, should not act or continue to act in a matter when there is or there is likely to be a conflicting interest. 2 Section 686(1)(b)(iii) provides: On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal ... (b) may dismiss the appeal where (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.