Accused entitled to the undivided loyalty of counsel

R. v. M.Q., 2012 ONCA 224 deals with the highly unusual fact situation where a defence counsel, who acted for a complainant on an assault then acted as trial counsel for the accused. When this fact emerged a mistrial was sought and the Court outlined the duties of counsel:

[26]         An accused who is represented by counsel at trial is entitled to the undivided loyalty of that counsel.  This principle is deeply embedded in Canadian law.  It has common law, statutory, and constitutional roots.  It is an important aspect of the right to effective counsel.  It is not only vital for the client.  It is essential to the integrity of the justice system and the confidence of the public in it: see R. v. Widdifield (1996), 25 O.R. (3d) 161 (C.A.), at pp. 171-172.

[27]         The duty of undivided loyalty has as a central dimension the duty to avoid conflicting interests. Michel Proulx and David Layton in Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2011) describe the duty this way, at pp. 290-291:

In criminal cases, the justification for prohibiting counsel from representing an accused while labouring under a conflict takes on constitutional dimensions.  By definition where counsel for the accused has an actual conflict of interest, the client suffers through representation by an advocate whose loyalty is suspect.  In such circumstances, and no matter how competent the conflicted lawyer, the accused has not been provided with effective counsel, which is itself a denial of fundamental justice and a violation of the Canadian Charter of Rights and Freedoms.

[28]         In R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 31, Binnie J. described a conflicting interest as one creating a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client, or third person.

[29]         In this case, there is no dispute that defence counsel was burdened by an actual conflict of interest.  He had previously met with the complainant and her mother.  They had sought his legal advice about the very incidents that were the basis for the charges against his client.  He had received information from them about these incidents that he had a duty to keep in confidence.  That duty continued regardless of whether he was subsequently formally retained by them or not: see Proulx and Layton, supra at p. 310. 

[30]         Professor Alice Woolley in Understanding Lawyers' Ethics in Canada (Markham: LexisNexis, 2011), at pp. 232-233, frames this conflict succinctly:

Either the lawyer will use the information, and violate his duty of confidentiality to the former client, or the lawyer will not use the information and violate his duty of zealous advocacy to his new client.

[31]         The question facing the trial judge was not whether defence counsel had a conflict, but what if anything to do about it.  As Binnie J. said in Neil, supra, at para. 36, it is one thing to demonstrate a breach of loyalty, but quite another to arrive at an appropriate remedy.