An Ontario judge has ordered a stay of proceedings in a drug case over delays stemming in part from a former police officer’s failure to disclose the fact that the lawyer for the accused was also his counsel on a separate matter.
Now a practising lawyer, former London, Ont., police officer James Edward Dean was the key witness for the Crown in R. v. Krywucky and Segal. At the preliminary hearing on Sept. 22, 2010, he failed to disclose that one of the defence counsel was also representing him in an unrelated case, a Superior Court judge found in a March 1 ruling. According to defendant Herschel Segal’s counsel Richard Posner, the situation involved a clear conflict of interest and a “conspiracy of silence” between Dean and his lawyer, Glen Donald.
When Posner cross-examined Dean, he asked him if he had any outstanding matters under the Police Services Act. Dean replied that he did.
“I asked if he had counsel and he said yes but he didn’t say it was the guy sitting next to me,” Posner tells Law Times.
Essentially, Dean’s own lawyer on the Police Services Act matter was cross-examining him as a witness in the criminal case. Donald also remained silent about the issue during the proceedings, the court found. He was counsel for Andrea Krywucky, who had, according to Superior Court Justice Andrew Goodman, hired a lawyer “with divided loyalties.”
For his part, Donald said “the case speaks for itself.”
But in a statement to Law Times, he defended his actions on Krywucky’s behalf. “Suffice to say that, at all times, her interests, and no one else’s, were foremost in my mind while I was counsel acting in her defence,” he wrote.
The case was subject to repeated problems throughout. At one point, the judge at the original preliminary hearing, Ontario Court Justice John Skowronski, noted the troubling optics and recused himself. A new preliminary hearing later went ahead before Justice Donald Ebbs.
In the meantime, Donald removed himself from the case.
Krywucky’s new counsel, Geoff Snow, says “there was an abuse of process and the delay application flowed from there.”
The case stalled once again after Donald filed a motion to quash a subpoena filed by Posner seeking to compel him to appear as a witness. After Donald eventually agreed to attend and answer questions at an examination for discovery, the accused consented to their committal to trial on April 19, 2012. However, additional delays meant the trial wouldn’t go ahead until March 11, 2013. But on March 1, 2013, Goodman, in ruling on the defendants’ application for a stay, found the overall delays in the case were excessive. As a result, Krywucky and Segal won’t have to face a trial for the 160 marijuana plants that police say they found in their house.
Dean was a pivotal witness for the prosecution because he made the decision to enter Segal and Krywucky’s home without a warrant on July 1, 2009, following a call related to a break and enter. Police went to the home because Segal had allegedly broken a window and there were reports of a woman screaming. Dean also suspected Segal was part of an outlaw biker organization and was involved in illicit drug activity, according to Goodman.
Dean decided to have the house cleared since there was no sign of the screaming woman. His supervising officer, Sgt. Stephen Mark Dwyer, testified they saw drug paraphernalia and found what appeared to be a marijuana grow-op in the basement.
The solicitor-client relationship between Dean and Donald came to light several days before the recommencement of the preliminary hearing scheduled for Dec. 7, 2010. Crown counsel at the time was Marten Dykstra, who became suspicious that Donald was Dean’s lawyer while reviewing the transcripts. He sent Dean an e-mail but got no response. Finally, Dykstra ran into Donald at the courthouse and directly asked him whether he was representing Dean in another case.
At the hearing, Donald applied for removal from the record. An affidavit referred to a conflict but didn’t mention the fact he was counsel for Dean.
In response, Posner argued there was a breach of his client’s s. 7 rights under the Charter of Rights and Freedoms. Dean’s failure to disclose the issue and the Crown’s actions in the case amounted to a breach of their obligations, he argued.
Crown prosecutor Paul Bailey argued Dean testified truthfully and didn’t try to conceal the fact that Donald was his lawyer on a different case. Instead, Bailey said it was Donald who failed to report the issue.
But Goodman found otherwise. “Not only had he [Dean] been evasive with defence counsel, but also with the Crown. This suggests to me that he was trying to cover up for something that had occurred. I do not find Mr. Dean’s evidence to be credible or trustworthy.”
Goodman added: “I find that Mr. Dean was aware that there were viable Charter and legal issues arising from the police activity at the Genevieve home arising from the events of July 1, 2009.
“He also knew that Mr. Posner might properly mount an attack on his conduct in entering the applicants’ home without a warrant. Mr. Posner argues that Mr. Dean could count on the fact that Mr. Donald would not attack his integrity or credibility and that Mr. Donald’s cross-examination of officer Dean suggested that the officer had conducted himself professionally and appropriately. I would not go so far as to say that Mr. Dean had two allies in the courtroom — and I find that counsel may be overstating the case. However, it is clear to me that the conflict or the appearance of conflict was readily apparent and negatively affected Ms. Krywucky’s rights.”
Nevertheless, Goodman declined to order a stay on the basis of Dean’s actions. “I am not satisfied that the applicants have demonstrated that they would be severely prejudiced by officer Dean’s actions and that the administration of justice would fall into disrepute, warranting the drastic remedy sought,” he wrote.
In the end, Goodman calculated 28 months of delay, including 11 months due to the actions of the Crown and 17 months of institutional delay. That was enough to warrant a stay of the proceedings under s. 11(b), he determined.
“Mr. Dean ought to have known that remaining quiet about the conflict of interest meant that the interests of Ms. Krywucky and the justice system were being placed in some jeopardy,” wrote Goodman.
Law Times couldn’t reach Dean for comment last week.