Trial Counsel did not disclose that Leroux-Blake and her co-accused had direct adverse interests
The Court of Appeal has overturned a woman’s drug trafficking conviction and ordered a new trial because, by representing both her and her co-accused, defence counsel had a conflict of interest which led to an unreliable verdict and miscarriage of justice.
Without the appellant’s consultation and despite the fact she did not want to plead guilty, Superior Court Justice Patricia Hennessy wrote that trial counsel proceeded with a nolo contendere procedure and presented an agreed statement of facts to the court that resulted in a finding of guilt, without a guilty plea entered.
Justice Hennessy wrote that if the appellant’s former co-accused testified, her trial counsel would have cross-examined him and exposed the apparent conflict because their interests were immediately and directly adverse to one another. “Any substantive defence put forward on behalf of the appellant would implicate the appellant’s former co-accused, to whom trial counsel still owed a duty of loyalty [R. v. Baharloo].”
A nolo contendere procedure is when the accused enters a plea of not guilty but adopts a statement of facts read by the Crown. Carter Martell, who acted for the appellant, says the procedure holds the right to appeal an unfavourable ruling without a full trial but is the equivalent of a guilty plea with the same obligations.
“For all intents and purposes, it is a guilty plea because a conviction is the inevitable result of the procedure,” he says.
Martell says the appellant always maintained she was innocent, and significant evidence gathered in the investigation supported her position. “The Crown ultimately made a very fair and reasonable decision to concede this appeal and indicated that it would not re-prosecute. This decision corrects a very unfortunate miscarriage of justice.”
Crown Attorney Lisa Matthews says the court’s decision underscores the necessity for defence counsel to have clear conversations before making determinative, strategic decisions with their clients and the Crown.
Matthews says defence counsel must explain to their clients that a nolo contendere procedure with an agreed statement of facts is a de facto guilty plea. “In these circumstances, it is imperative for defence counsel to get their client’s clear and express consent before embarking on such a procedure.”
She says that crown counsel must raise potential conflicts of interest arising from joint retainers with defence counsel and the court. “It is equally important for defence counsel to raise the issue of conflict of interest with their clients.”
In R. v. Leroux-Blake, Carole Leroux-Blake appealed her 2016 conviction for cocaine possession for the intent of trafficking, claiming ineffective assistance of counsel stemming from a conflict of interest. The cocaine was discovered in a trailer that belonged to Leroux-Blake and her former husband, the co-accused, and each maintained their innocence.
Trial counsel originally represented Leroux-Blake’s former husband, and at his preliminary inquiry, the Crown withdrew the charges in exchange for a statutory declaration that he did not know that there were drugs in the trailer.
When Leroux-Blake’s trial commenced, counsel represented her and admitted that she denied owning the drugs and wanted to plead not guilty. However, he concluded that she had no substantive defence and could only win the case by challenging the search warrant which resulted in the drug discovery.
Trial counsel determined that the case against Leroux-Blake was strong because of an “inculpatory utterance” she made at the time of arrest, but the appellant denied that she made that remark. Furthermore, he failed to ask the Crown whether she intended to use the comment in the case and never interviewed Leroux-Blake, believing that it would limit his defence at trial if she admitted knowledge and control of the cocaine.
Without an explanation to Leroux-Blake, counsel agreed with the trial Crown that the search-warrant challenge would be determinative of the prosecution in exchange for consent to cross-examine the appellant on a Garofoli application. The Crown did not raise the conflict issue because he believed, based on counsel’s position, that possession of the drugs was not in dispute, and the only problem at trial was the viability of the warrant.
The Crown acknowledged that had the matter gone to trial, she would have called Leroux-Blake’s former co-accused as a prosecution witness to deny he had knowledge and control of the cocaine because they were the only people in charge of the trailer that stored the drugs.
The court wrote that Leroux-Blake would not be re-prosecuted as expressed by the Crown. “In these circumstances, a new trial is ordered, and the respondent will undoubtedly take the appropriate steps to bring the matter to a conclusion without a trial.”