1 ROYAL COMMISSION OF INQUIRY INTO THE NIAGARA REGIONAL POLICE FORCE THE HONOURABLE W.E.C. COLTER -- COMMISSIONER --- Hearing held at the District Court House, St. Catharines, Ontario, on the 10th day of October, 1989. Volume 108 APPEARANCES: W.A. (Tony) KELLY, Q.C. Commission Counsel R.D. COLLINS Assoc. Commission Counsel P.A.E. SHONIKER Niagara Regional Board of Commissioners of Police F.S. FEDORSEN Chief of Police, John. E. Shoveller R.N. BRADY Niagara Regional Police Association F. DAVID PICKERING Retired Chief of Police, 2 10/10/89 James Gayder D.W. BROWN, Q.C. Ontario Provincial Police and Ontario Police Commission KAREN DUNLOP Sgt. Cornelius VanderMeer BARRY H. MATHESON, Q.C. Sgt. Michael Miljus FAYE MCWATT For the Internal Investigative Team THOMAS B. MILLAR -- ADMINISTRATOR PATRICIA LAURIN - REGISTRAR ------------------- INDEX OF EXHIBITS Exhibit No. Page No. 296 September 19/1989 Letter To: Commissioner Colter From: Ms. McWatt Re: Standing for the Internal Investigation Team .....................3 3 10/10/89 TUESDAY, OCTOBER 10, 1989 ---Commencing at 10:30 A.M. MR. COMMISSIONER: Good morning. Yes, Mr. Kelly? MR. KELLY: Before we begin, your honour, I would like file with the Commission the next Exhibit, the written submissions of Ms. McWatt with respect to her client's independent standing in the matter, as the next Exhibit. MR. COMMISSIONER: That is her letter to me asking for standing, yes. MR. KELLY: That's correct. And then --- THE REGISTRAR: 296. MR. COMMISSIONER: I'm sorry that number again? THE REGISTER: 296. MR. COMMISSIONER: Yes, 296. EXHIBIT NO. 296: September 19/1989 Letter To: Commissioner Colter From: Ms. McWatt Re: Standing for the Internal Investigation Team. MR. KELLY: I received some correspondence, 4 10/10/89 late last week, from Ms. McWatt in which she raised some concerns about Mr. Brady acting on behalf of his client during this particular stage of the inquiry. I indicated that if she wished to press that particular matter she ought to make submissions to you and I think probably she has that in mind. MS. DUNLOP: Your honour, just before that matter is gotten into, I wonder if I might make a brief statement to the Commission. I asked Mr. Kelly for that privilege. It's only with reference to the matter that we closed upon last Monday, I believe, with reference to the order of calling witnesses. I do feel that it is incumbent on me, as Counsel for Mr. VanderMeer, to explain what happened briefly and what our position is today with reference to the calling of the witnesses. MR. COMMISSIONER: Yes, by all means. MS. DUNLOP: Thank you very much, your honour. I might indicate that in order to accommodate the inquiry and to avoid delay on behalf of Mr. VanderMeer I'm content to indicate -- we are content -- and indicated this to Mr. Kelly that we are content to proceed in the order that has been set forward by the inquiry. I understand from Mr. Kelly that the concerns that we have and the witnesses that we wish to be 5 10/10/89 called will be called in the next phase of the inquiry and I also understand from Mr. Kelly that should we have any concerns that witnesses can be called during this stage of the inquiry to ameliorate those concerns that we might have with respect to evidence before Sergeant VanderMeer --- MR. COMMISSIONER: This is regarding the question of whether the internal investigation should be gone into now before the OPP and the OPC; is that what you are referring to? MS. DUNLOP: Yes. Well, our position is still that that would be preferable and I might indicate that it would be preferable, I believe, to call that evidence of the OPP and the OPC inquiry before the internal investigation team. Basically, as I indicated last week, first of all it sets forward chronologically what happened and it gives a context for the internal investigation team and how they -- MR. COMMISSIONER: Yes. MS. DUNLOP: -- proceeded and what they did. But in light of --- MR. COMMISSIONER: Yes. But do I gather that a compromise has been arrived at? MS. DUNLOP: No, I am about to put forward - - yes, it is a compromise of sorts but it is a compromise 6 10/10/89 that basically in which we have (to avoid delays) indicated to Counsel that we are prepared to proceed with the inquiry as -- this phase of the inquiry, in the order in which he set it forward. The compromise, such as it is, may be the calling of a witness, with respect to certain matters that may affect the evidence with respect to the internal investigation team. I might indicate that Sergeant VanderMeer certainly does not wish to delay the inquiry although there has been a year in which the investigators have been able to assemble the evidence. It's not our position that it would take until 1992, as it was suggested I believe by persons present, that if we ask for this adjournment and it was granted, it would take until 1992. It is not our position that that would happen. It might only take a couple of weeks. But not to delay it even by a couple of weeks, we are prepared to proceed, at this point, and not raise any further objections. MR. COMMISSIONER: Was there anything further? That's it, is it? Yes. Yes, Mr. Kelly? MR. KELLY: Excuse me. Oh, I have nothing further to add at this point. I understand Ms. McWatt has 7 10/10/89 some submissions to make concerning Mr. Brady. MR. COMMISSIONER: Well, that is what I was wondering. Is there something further then. MR. KELLY: Ms. McWatt. MR. COMMISSIONER: Oh, I'm sorry. MS. MCWATT: Your honour, good morning. Faye McWatt appearing for the IIT. And just -- MR. COMMISSIONER: When there is a proliferation of Counsel I sometimes get confused. MS. MCWATT: You will get use to us in a couple of days, your honour. The first thing that I wanted to mention and I won't be long but I think Mr. Brady is well aware of the fact that the team that I represent consists of six people. And they are Staff Superintendent Jim Moody, Sergeant Gerald Melinko, Constable George Onich, Staff Sergeant Joe Newburgh, Carol Bar -- Berry and Billie Hockey. That, basically, because of dealings that Miss -- Sergeant Melinko has had and also George Onich has had with Mr. Ronald Brady, who is a member of the inquiry, Counsel -- one of the Counsel in the inquiry, that there is an apprehension on their part that because he is going to be taking a somewhat adversarial role in questioning them that it's not a fair part for him to take and that he shouldn't have any part in their questioning as a team. 8 10/10/89 Now, I've had some conversation with Mr. Brady and we've tried to resolve the matter in some way by exchanging information about exactly what the problem is and Mr. Brady -- and he will clarify I'm sure, if I have mis-stated anything that he said -- has got no question with respect to asking questions and making submissions based on any evidence that Constable Onich should give. And this, he says, is due to the fact that he had represented Mr. Onich in a previous trial; criminal matter. I'm certainly content with that. Now, we get to Sergeant Melinko, who apparently Mr. Brady did some work for or did some work for a member of the family, the Melinko family, and Mr. Brady is saying that because he has done some work for the wife of Sergeant Melinko then he can -- he doesn't have to not question the Sergeant because of conversations that may have arisen during that period about the IIT. And, as I understand it, Mr. Brady's position is this: "I will stay away from Constable Onich. I may have some questions for Sergeant Melinko but I should be allowed to question the IIT, the six members [the other four members that I represent], with respect to anything and everything about their investigation." Now, I would submit to your honour that the team is a team. They did everything in concert with each 9 10/10/89 other. They were involved day in and day out. And that Mr. Brady can not take his position with respect to just one of the members of this team. If he is going to be questioning the behaviour of this team at all, he has got to do so with them represented as a unit. And he can't just say, "I won't bother with Mr. Onich, or I won't ask Sergeant Melinko many questions." It's the team that he will be taking an adversarial position towards. And I have certain information that was given to me by Constable Onich and Sergeant Melinko about the fact that they discussed certain things with Mr. Brady about the team and about the investigation as it was taking place. And on that basis, they feel some apprehension, a bias on his part, and they feel that it would not be fair that he now take an adversarial position toward them. MR. COMMISSIONER: Yes. I'm not sure I understand. This is a small community relatively speaking. It's almost inevitable, I think, that lawyers, from time to time, act for one person and another in unrelated matters. Is there some relation here that I don't understand when Mr. Brady acted for Mr. Onich in some criminal matter -- MS. MCWATT: That's right. They --- 10 10/10/89 MR. COMMISSIONER: -- and I understood that it was some sort of theft under $200 or something of -- MS. MCWATT: That's correct, your honour. MR. COMMISSIONER: -- this nature; under $1000, as the case might be. And from what you just said with Sergeant Melinko -- is it Sergeant Melinko? MS. MCWATT: Sergeant Melinko. MR. COMMISSIONER: That it was a domestic matter; was it? MS. MCWATT: He acted in, I believe, a situation where there was a motor vehicle matter for the wife of Sergeant Melinko but --- MR. COMMISSIONER: Yes. Well, I -- okay, but I didn't quite understand where the conflict is. MS. MCWATT: Well, let me clarify this. Let me clarify for your honour. Basically there was information given by Constable Onich and Sergeant Melinko in, as far they tell me, that was about the internal investigation team and about its members, and because that information was given to Mr. Brady --- MR. COMMISSIONER: Well, is it relevant to what is going to go on now? This is what I don't quite understand. I mean, naturally, if somebody comes into your office you're going to discuss a great many things, probably, but what relation has it to what's going on here. 11 10/10/89 I'm very hesitant to do something that is going to create, again, presumably delays if --- MS. MCWATT: Oh, I agree, your honour. I don't want to cause a delay. I am not trying to do anything like that. MR. COMMISSIONER: So what are we into here? Why do you ask me to -- MS. MCWATT: I ask you --- MR. COMMISSIONER: -- you are asking me to find if there is a conflict of interest on Mr. Brady's behalf? MS. MCWATT: I -- yes, I under -- I would ask -- MR. COMMISSIONER: Or on his part. MS. MCWATT: -- you to find that he was given certain information on the basis of solicitor/client privilege. MR. COMMISSIONER: Well, can you explain to me how that -- of course, it would be solicitor/client privilege if he was acting for him in a criminal matter. But how it affects what goes on in the internal investigation -- had it anything to do with the internal investigation? MS. MCWATT: Well, yes, your honour, that's what -- I'm saying that the information, and I have to get 12 10/10/89 details basically, I have some of the details -- MR. COMMISSIONER: The criminal matter had to do with the internal investigation? MS. MCWATT: That during his representation, for instance, of Constable Onich that certain matters were discussed and while this privileged communication and privileged relationship was going on I -- there was discussion about the internal investigation team and there was discussions about the investigation itself. MR. COMMISSIONER: Well, I would think that might be normal if they are passing -- MS. MCWATT: Normal or --- MR. COMMISSIONER: -- the time of day but was it -- how did it affect the internal investigation? That is what I am simply trying to get at. MS. MCWATT: I'm not saying it did. I'm saying that it affects his role now in this procedure. That's what I am suggesting to your honour, with respect, that it affects the role that he now plays as adversary to these people. Now, Mr. Brady has already indicated he won't have anything to do with Constable Onich and that's fine, your honour, but Constable Onich is an integral part of this team and when one makes adversarial comments or submissions, at some point later about the team, it's -- or 13 10/10/89 not about Constable Onich, it's about everyone. He can't be separated from the team, is what I'm trying to say. And because of that, those kind of communications in the past, that it basically puts a seeming unfairness on the fact that Mr. Brady now will question these members. And that's basically what my submission is. MR. COMMISSIONER: Yes, I am still not satisfied quite -- what you mean by that there is a prejudice to them in some way. Are you suggesting that any Counsel who has acted for any member of this team in the past could not represent the police association as Mr. Brady does -- MS. MCWATT: I can't -- MR. COMMISSIONER: -- because they might have in passing said, "You're a member of the investigation team?" MS. MCWATT: -- I can't speak for any other situation than what I am speaking for now and my clients have an apprehension of a bias. They feel that because information was given to Mr. Brady and now he is in a position, an adversarial position against them, that they feel that it's unfair, your honour, and they feel that it is -- that basically, he has one up and it's not fair. And the appearance of fairness is what 14 10/10/89 should prevail. And that's what I am talking about now. I don't know about any other Counsel, I'm here on a very new basis and I can't speak for any other situation. I can only tell your honour what my clients -- MR. COMMISSIONER: Yes. MS. MCWATT: -- are telling me and the position that I have to take. MR. COMMISSIONER: You see, my difficulty is that what you are asking me to do is on a subjective feeling, and I can understand Mr. Onich, I see him here, may feel, "I'd rather not have Ron Brady cross-examining me because he, at one time, acted for me and I feel uncomfortable about it"; but is there a conflict? Is it anything that Mr. Onich told him, going to give Mr. Brady information, that could be used unfairly against Mr. Onich? This is what I am -- you haven't told me anything of that apart from the fact that Mr. Onich, who from evidence he had given before me before, obviously has an apprehension of bias on the part of a great many people. At one point he said that there was nobody in the police force that he would trust, or at least nobody of a higher rank than he, that he would trust. And I'm faced with that difficulty. I realize you weren't here but do I take his subjective 15 10/10/89 feeling about that and simply say, "Okay, Mr. Brady, you can't take part in these proceedings because Constable Onich, who doesn't trust many people, doesn't trust you." MS. MCWATT: Well, it isn't an objective test, your honour, it is a subjective test. It is a test where the client --- MR. COMMISSIONER: Could you give me some authority for that? MS. MCWATT: Well, I'm -- Ms. Dunlop has kindly presented me with the case of Regina and Speid which basically, your honour, and I'll only read part of it from the headnote and I know that's an unfair thing to do but basically it's: A client has every right [and client is what they refer to] has every right to be confident that the person they retained will [not turn around and basically] have an adversarial position to them. I'll pass this to your honour -- MR. COMMISSIONER: Yes. MS. MCWATT: -- the case. But basically it is subjective. It is a subjective thing, you honour, I would submit, it is not objective. MR. COMMISSIONER: Well, I want --- MS. MCWATT: And again, your honour, the 16 10/10/89 professional conduct handbook and I'm looking at Section 13 where it -- the title is "Acting Against Former Clients". A lawyer who has acted for a client in a matter should not thereafter act against the client or against persons who were involved in or associated with the client in that matter in the same or any related matter. And I will pass this up to your honour as well. "Or when the lawyer" --- MR. COMMISSIONER: Yes, I am aware of it. I did look at some law on this and I wasn't aware that it was purely subjective, I must confess, and I would be interested in being convinced of that. Yes. MS. MCWATT: Well, I would submit that it is an apprehension that the client had that basically brings the concern forward, your honour. It is subjective, I would suggest. And certainly the members of -- or my clients, the members of the IIT, the six that I have mentioned, do have that apprehension. MR. COMMISSIONER: As I read that same rule, I think it's the commentary; is it not? Commentary 12 on Rule 5: A lawyer who has acted for a client in a matter should not thereafter act against him or against persons who were involved in or 17 10/10/89 associated with him in that matter in the same or any related matter or when he has obtained confidential information from the other party in the course of performing professional services. It is not, however, improper for the lawyer to act against a former client in a fresh and independent matter totally unrelated to any work that he has previously done for that person and where such confidential information is irrelevant to that matter. This is what I'm trying to find out. Maybe Mr. Brady can tell me, but I suspect that he is going to say that he doesn't have any information that is relevant to the present matters that he got from some unrelated criminal matter; and that's what you haven't told me, really, anything except that Mr. Onich feels that way and he's uncomfortable. MS. MCWATT: Well, it's not just Mr. Onich, your honour, it's not just Mr. Onich, it's everyone else. Because of information that was given to Mr. Brady based on this solicitor/client privilege -- MR. COMMISSIONER: Yes. MS. MCWATT: -- about the team. Not just about Mr. Onich, about the team. So it's not just Mr. 18 10/10/89 Onich, although, Mr. Onich is the conduit and also Mr. -- Sergeant Melinko. And basically it's -- I know that Mr. Brady has already told me and I accept. He says he doesn't -- basically he can't remember what was said, or he doesn't know what was said, et cetera. But I would submit to your honour that either there is information there that he did have and that will be used in an adversarial process against my client. MR. COMMISSIONER: Yes. Well, I certainly want to hear from Mr. Brady but I'm just concerned and I would like to know what it was that Mr. Onich thinks that Mr. Brady knows. Because from what you say, Mr. Brady is going to not recall anything. And I don't think, I can just in a vacuum say --- MS. MCWATT: I agree your honour and Mr. Onich is here --- MR. COMMISSIONER: And after all we have got to remember as well, Ms. McWatt, that this is an investigatory procedure. It's not -- there is no criminal charge, or civil charge for that matter, against anyone here and I'm prohibited, as a matter of fact, from even recommending that criminal charges or making any finding that way. In that way, it's considerably different 19 10/10/89 from a criminal charge. I might feel uncomfortable, as you suggest, if there were criminal charges against Mr. Onich here. That's not the case. However, I'll just listen to Mr. Brady and then hear from you again after that if you wish -- MS. MCWATT: All right, your honour. Yes, thank you. MR. COMMISSIONER: -- to see what he has to say. MR. BRADY: First of all your honour, let me address the Onich situation. The -- I have indicated to Ms. McWatt that I have no -- I had not intended to ask Constable Onich questions, nor did I feel that I would be making submissions with respect to his conduct. That was not because of any -- not because my representation of him in the criminal matter. It is only because I have reviewed the material and I didn't find anything that caused me great concern with respect to Constable Onich's involvement in the internal investigation team. He was there for a brief period because he left the team when his criminal problems arose. The criminal -- the defense of Constable Onich's matter touched upon the internal investigation team's activities to show that it placed Constable Onich under great stress. 20 10/10/89 And there was evidence called to that effect at the trial and, indeed, Constable Melinko -- I'm sorry, Sergeant Melinko testified at that trial, as did Superintendent Moody, about the impact being involved with the internal investigation had on the individual members from the point of being stressed. That -- my involvement with Constable is -- Constable Onich occurs after the -- in this area, occurs after he has left the internal investigation team and it goes to the defense of this criminal matter from that point of view. Now, with the greatest of respect, it's not every conversation that places a client and a lawyer in a confidential situation where privilege arises, or they can claim conflict if that lawyer becomes involved in a matter at a later point in time. Firstly, this is not an adversarial situation, albeit it has taken on the appearance of that at times. It is not strictly speaking an adversarial situation. So that for my friend to get up and say that the -- my role is adversarial to that of her clients is strictly, is strictly not correct. The situation of Sergeant Melinko is far -- is even more removed than that of Constable Onich; for 21 10/10/89 actually I have represented Sergeant Melinko on two occasions. On a motor vehicle accident, some years ago, that I can't recall; back in the early '80's sometime -- I'm sorry, back then certainly, and personally, if I recall it correctly. The second situation arises out of a motor vehicle accident involving his wife some years ago where she suffered some injuries and we brought a claim for her in relation to that. There was no representation of Sergeant Melinko in that, other than perhaps a suggestion that he might have a family law claim but because of the nature of the injuries it wasn't advanced. Any conversations that might have occurred about the internal team, if there were any, would have been of a casual nature and it's -- I don't even know that there were any, but if there were it was a matter of passing, like walking out the door; they are of minor consequence. That type of conversation where he's not coming to me for professional advice on how to conduct himself or what to do can't give rise to the solicitor/client relationship which puts me in a conflict. As your honour has read, Rule 5 talks about related matters, or where I've acted for someone close to a situation in related matters and it's a continuation 22 10/10/89 essentially of that matter. Clearly, the motor vehicle accident of Mrs. Melinko had absolutely nothing to do with the internal investigation team. No one was seeking my advice in that accident case about the internal investigation that was going on. And if somehow it came up in passing conversation that, in my respectful submission, does not support the position Ms. McWatt advances. I guess that the other problem I have, even in addressing this, sir, is that in the absence of Sergeant Melinko and Constable Onich actually getting into the witness box, and you might have to do this in camera, in saying, "Here's what the situation was with Brady and this is why he should be excluded from representing the police association in this matter further". I have some trouble making submissions on it because as your honour has pointed out, what I've heard this morning is there is some subjective feeling that they might be compromised or I might bring some bias to the -- to my viewpoint of the internal investigation team in my questioning of these witnesses or in my submission. It seems to me that the -- that Constable Onich or Sergeant Melinko is going to have to give some evidence under oath to support the basis upon which it can be said that a solicitor and client relationship existed 23 10/10/89 between myself and them and that they were seeking professional advice at that time. And without that, sir, you really don't have anything to consider. But the situation on Onich is far simpler. Simply because I have determined that I don't have any great concern about his conduct as part of the internal investigation team and was not going to get into questioning Constable Onich. You might recall, sir, Constable Onich testified earlier in this inquiry and at that time he had already approached other Counsel. Now. I can't recall what Counsel was here or not. It was some difficulty getting Counsel -- Onich's Counsel here, he testified and I asked him at that time, under oath, whether he objected to my questioning him in this proceeding. And you recall he did not and he allowed me to cross-examine him at that time. Now, I don't know whether that consent extends forever but it's not really a problem because I don't intend to question Constable Onich at this stage. Melinko, with the greatest of respect, is simply casting the net far, far too wide. And to try and suggest that by talking to one member of the team, I'm somehow excluded from dealing with all the other members of the team is, in my respectful submission, something that is just not supportive on the cases. There is just no basis 24 10/10/89 for that at all, sir. MR. COMMISSIONER: Ms. McWatt, yes. MS. MCWATT: Well, with respect to one of the last points my friend just made, as I understand it, Mr. -- Constable Onich confirms that he consented to being questioned by Mr. Brady and this was well before that trial. This is well before that criminal matter came up and so obviously why would he have a problem before that matter came up as to the questioning. And so I don't --- MR. COMMISSIONER: Is that so? MS. MCWATT: Is that not the case? MR. COMMISSIONER: This was in January that he gave evidence, as I recall it, and at that time that was part of the reason he . . . MS. MCWATT: Well, as I understand it, it was before the trial. Again, Constable Onich tells me that --- MR. COMMISSIONER: It was before the trial perhaps but not --- MR. BRADY: With respect, I think the transcript was filed, your honour. Is there some port -- I'm not sure if there is some portion that has been misfiled but my recollection is that the trial of Constable Onich took place before that examination. I don't want to 25 10/10/89 get back to submissions but that might have been a far more difficult situation than exists now. MS. MCWATT: Well, February 28th was the trial apparently, and as I understand it these submissions were made in January. Is that -- I just want to clear that before I go any further. So -- MR. COMMISSIONER: It was ongoing at the time. That's all I recall because Constable Onich was under a great deal of emotional strain in the witness box and broke down at that time, as a matter of fact, and the explanation, as I gather it, was that this other matter was ongoing. You see, at that time, if there had been -- at least if it was known, of course, that we were going to be going into the internal investigation it might have been possible to get someone to represent the police association without the tremendous delay that would occur here. It is the delay, Ms. McWatt, that is bothering me partly and that, therefore, I think it casts heavier onus, in view of that, on an applicant for a finding of conflict of interest where there has been this delay. If we had been warned about it earlier, I might have been able to look further into what the alleged conflict is. At the moment I still have only that feeling 26 10/10/89 that Constable Onich has and the other members of the team that somehow it's unfair for Mr. Brady to do this. MS. MCWATT: Two things -- MR. COMMISSIONER: My understanding is that it's the onus of -- the law is that the onus is on the applicant to show that confidential information has been transmitted and that -- MS. MCWATT: Two things, your honour -- MR. COMMISSIONER: -- in fact that there would be prejudice and mischief. The old rule was that the probability of real mischief. Now that's been in the last two or three years perhaps eroded slightly in Ontario, at least. It's not the English law but in Ontario that unfairness must be looked at as well, quite apart from the probability of real mischief. But that's, if you can understand me, this is -- MS. MCWATT: I do. MR. COMMISSIONER: -- what concerns me here. It could be a great dis-service to this investigation at this time to tell Mr. Brady that he can no longer take any part in this phase and I feel that I should be convinced farther than I am. MS. MCWATT: Well, I have about three points to make, your honour. First of all, I understand that 27 10/10/89 delay is a very important thing. It certainly is important because this thing has been going on so long. However, to my clients, delay is not as important as their apprehension of bias, and this adversarial role that I have been saying that Mr. Brady is going take towards him. Secondly, I am prepared to call some evidence. I have to now get in touch with Sergeant Melinko but Constable Onich is here. And thirdly, your honour, I think that with respect to this matter just being mentioned by me now, as I have been told vaguely and I come to this new, that it isn't the first time it's been mentioned. That this was mentioned in the past and I can't tell your honour, in what context or can't point, your honour, to transcripts; but, as I understand it, this is not the first time that a conflict re. Mr. Brady and this whole inquiry has come up. And again, I'll have to confer about that with Counsel because I'm basically out in the dark upon that aspect. MR. COMMISSIONER: You're speaking about calling some evidence to indicate that there has been confidential information transmitted to Mr. Brady? MS. MCWATT: Yes, your honour. MR. COMMISSIONER: Are you prepared to do that now? 28 10/10/89 MS. MCWATT: I would have to have a word or two with Constable Onich who is here and I'm going to have to call on Sergeant Melinko to come down and give evidence as well. So I'm going to need some time. MR. COMMISSIONER: Yes, and I will just refer to Commission Counsel now and see what he has in mind. MR. KELLY: Your honour, in my submission there are two -- there are two different situations and the law is different in respect to each of them. One is the situation where the matter in which the solicitor is acting is the same or substantially similar to the matter in which he acted for the client in the past. In that case, there is no doubt that the Ontario cases suggest the unfairness test would apply. There is no suggestion, and it can't be said in this case, that the earlier matter involving Mr. Onich was the same or substantially similar. In respect to Mr. Melinko, there was no earlier retainer whatever involving him, at least, apart from the motor vehicle accident. The second case where the law applies itself is where a lawyer has acted for a client in the past, in a totally unrelated matter to the matter under address at the time the submissions are made. 29 10/10/89 In that situation, you must -- the ex- client, where there is no identity or similarity of retainer and function, demonstrate that the prior relationship, in fact, gave rise to a passing of confidential information that would affect his or her position in the new set of events. So that you can't look to the unfairness test except where there is an identity or similarity of interest. And that's -- the reason why the unfairness test is applied there is because, by their very nature, the events are identical or substantially similar and therefore it would be very difficult to suggest that there might not have been confidential material passing. If there is no connection whatever between the past events and the present event, then there is no, by reason of the nature of the events, nothing that gives rise to a suggestion of it passing therefore there must be evidence that, in fact, it was passed and it could affect the events in question. I think that they are two separate and distinct events and the law is different in respect to each of them. MR. COMMISSIONER: Do you know anything about this submission of Ms. McWatt's, that it is purely subjective that it depends on the feeling of the client 30 10/10/89 that --- MR. KELLY: I don't read the cases in that fashion. If you wish to read the decision of the District Court in Szebelledy and The Constitution Insurance Company in which that court reviews all of the earlier English decisions and the decisions in Ontario up to the present time; you will quickly see a distinction being drawn between the two separate kinds of events. If I, or Fedorsen, act for John Smith in Action A, and we then try to act for the other side of that case in Action B, a related action, then the unfairness test clearly disqualifies us; and that's what the cases say. It is not a subjective test, the court is saying, "If you're acting in an identical or substantially similar event we could never be persuaded that you couldn't have obtained that kind of information." But if the situation is not that but rather one where you acted for a client, and I've acted for a thousand, and if in every new case I took, a client could say, "Hey Kelly you acted for me and therefore you can't act against me" that could just never wash unless it can be demonstrated that in the earlier retainer, and it must be in the retainer, I obtained information affecting that ex- client's cause in the current matter. 31 10/10/89 It doesn't matter if I sit down with an ex- client over a beer and he tells me all about his present events, that's irrelevant. If he tells me, he tells me. And I'll use it as I see fit. MS. MCWATT: I don't disagree with Mr. Kelly on that point but I am not submitting that basically that this was a "sitting down over a beer" situation -- MR. KELLY: I didn't say it was. MS. MCWATT: -- or am I suggesting that this was a situation where because Mr. Brady acted for Constable Onich, he should not now -- I'm talking about information that was received. MR. COMMISSIONER: Yes. MS. MCWATT: That's the situation. MR. COMMISSIONER: And that is where I am having my difficulty at the moment. MS. MCWATT: Right. MR. COMMISSIONER: As I explained to you that I would like to know of that. Well, then can you call -- yes. MR. SHONIKER: May I make a few submissions? MR. COMMISSIONER: I'm not sure that this is relevant to you, perhaps but it is. MR. SHONIKER: I think it is very relevant because I didn't think there was an issue with respect to 32 10/10/89 Mrs. Taylor. She is going to testify here in this phase of the inquiry and given the evidence that was called on the last phase of the inquiry about the services she availed herself with Mr. Brady's firm, in general, and more particularly with Mr. Brady, in some aspects. I didn't think that there would even be an issue of that. And if that is a problem, I can't imagine that it would be but if it is then I am going to put my position on the record now, the fact that we join Ms. McWatt in her concern. The other thing I've got is that I've got a real concern about this statement that you have made, your honour, that takes people by surprise late in the game, et cetera. I spent a long time trying to find the passage in the transcript where I raised the issue of Mr. Brady's conflicts, very early on in this inquiry, and I couldn't find it. On December the 8th of '88, my recollection is that I raised the issue of some conflicts that Mr. Brady might have had at that time. MR. COMMISSIONER: The conflict regarding Onich? MR. SHONIKER: Conflict in general and the problem is we are not going to be able to tell what was said that day because the transcript has been edited. It's in Volume 14. December the 8th --- 33 10/10/89 MR. COMMISSIONER: Edited by whom? MR. SHONIKER: That's what I would like to know. On page 17, your honour will find that I said: If I might have your indulgence, your honour for a second. And then the next thing is, in brackets, "Discussion off the record". I can't remember what was said other than I know for a fact that that day the possibility of conflict with Mr. Brady was approached. It was approached by myself and I can your honour's response to me was that it was the first you had heard at that time there was a conflict with Mr. Brady and any potential witness. I can't recall what else was said and because the transcript seems to have been edited I don't know if any of us --- MR. COMMISSIONER: Now, that sort of casts a reflection on somebody that they have taken that out. MR. KELLY: I don't read the transcript that way at all. MR. COMMISSIONER: Just a moment Mr. Kelly. I would like to answer that because it sounds as if either I, or you, or someone else edited it. That obviously whatever the discussion was, and there have been many of them where Counsel have put their heads together, the reporter doesn't hear, and they 34 10/10/89 simply say we're discussing this, it's off the record. And I presume that is what happened there, but the suggestion that somebody has edited it, really that bothers me. MR. SHONIKER: Well, your honour, firstly it was one of those discussions. MR. KELLY: Well hold on, just hold on. The page -- in the centre of the page it says: Mr. Shoniker: May I just have your indulgence, your honour, for a second. And then it says: (Discussion off the record) MR. COMMISSIONER: What is the indulgence that --- MR. KELLY: And then: Mr. Shoniker: Thank you, your honour. I would read that as Mr. Shoniker wanted to talk with somebody. I mean, I think it's really --- MR. COMMISSIONER: Well, that's normally the case when somebody asks --- MR. SHONIKER: I think we will find it helpful if you review the tape. The issue was brought up, your honour. This issue was clearly dealt with on that day and that's -- and it was dealt with either that day or some other point where it's not there in the transcript. You can be offended if you want, your 35 10/10/89 honour. My point is, I did raise the issue and I'm sure Mr. Brady remembers standing up and not being happy about the raising of the issue. And your honour wasn't happy about the raising of the issue. Your clearly not happy about McWatt raising it today, and if there is any suggestion it is not timely, I don't think that that's fair. Furthermore, Ms. McWatt's recommendations to Mr. Kelly in her letter is one that the Professional Conduct Committee might deal with, and if that's the situation then perhaps the Professional Conduct Committee should deal with this. MR. COMMISSIONER: Sure. MR. SHONIKER: If there is some kind of an apprehension on the part of clients that solicitor/client privileged communications are going to be used to cross- examine anybody then that's a concern that my client has. The Board of Commissioners of Police shares that concern and --- MR. COMMISSIONER: Certainly I would never rule that conversations that were relevant to this particular hearing that took place between a lawyer who is opposed in interest, as Ms. McWatt suggests, wasn't a conflict. I'm simply suggesting that simply because a 36 10/10/89 former client has some subjective feeling that he's uncomfortable about a former lawyer having anything to do with a case and questioning him about it, a new matter, that if it went that far there would never really be any argument about conflict of interest because all you would have to do is say to the former client, "Do you feel uncomfortable even though there is no evidence of bias." This is the proposition that I don't quite understand. It's not my understanding of the law and I'm quite happy to have somebody point out to me some jurisprudence that suggests that is the case. But do you know of any? MR. SHONIKER: Well, your honour, I don't think Mr. Kelly presents himself as being the crucible of trust for the law society, neither does my -- do I. But I can only say this; that your honour is in a situation where the facts are being put to you and I don't know your honour if, with respect, the same inference is being drawn by you that's being drawn by me and maybe I'm wrong but what seems to be being said by Ms. McWatt is two of her clients had discussions about matters involving internal investigations with Mr. Brady. MR. COMMISSIONER: Well, let's find out. If that is the case then there could be a conflict. I just want to find out. 37 10/10/89 MR. SHONIKER: That was my understanding. That they had had discussions with Mr. Brady about matters involving the internal inquiry team and that now Mr. Brady, with that knowledge, is going to be able to cross-examine other people and use that information. Now, if that's the case, I think that's a problem. It certainly is, as far --- MR. COMMISSIONER: Of course it's a problem but there has been no evidence to that. Really, all Ms. McWatt has said so far is that she is going to call some evidence to that effect, but that she, herself, cannot give me that evidence. I don't see any problem here. All I am concerned about was the proposition that without having to explain why Mr. Onich was uncomfortable that he is uncomfortable and that that should create the problem that is sufficient to -- for my making a ruling on conflict of interest and I don't want to be -- I've got to fair to everyone here. I don't want to be unfair to Mr. Brady. I certainly don't want to be unfair to Mr. Onich if there's evidence. But if that is what you are suggesting, I agree with you completely. That if there is evidence that information was received by Mr. Brady, even though he has forgotten 38 10/10/89 about it now, if I'm satisfied that he received information that was confidential and would be prejudicial to Mr. Onich and that he might be cross-examined on that, then I would have to re-consider the question of conflict. But until I know something like that, I'm not prepared to accept the proposition in the absence of jurisprudence, of which I know of none, to the effect that it is purely subjective in the former client as to his uncomfortable feeling. That's all. MR. SHONIKER: As far as the law goes, your honour, I don't know of the Szebelledy case that Mr. Kelly has referred to but surely the Judge with the Associate Chief Justice of Ontario, Mr. Justice Gavin, it's feat is one that should not -- I think that that should be a weighted matter for your honour to consider. MR. COMMISSIONER: Which case is that? MR. SHONIKER: That's Speid. Speid vs. The Queen. Speid. And that's --- MR. COMMISSIONER: I don't think it goes that far. MR. SHONIKER: Your honour will decide the law. MR. COMMISSIONER: Sure. MR. SHONIKER: I will only say this, your honour, I never -- I didn't, in my wildest dreams, think 39 10/10/89 there was a problem with respect to Mrs. Taylor; given on the face of the evidence that was called in the last term, as well as Mr. Brady's position on the last term, so, I hope that's not a problem. I didn't perceive it to be. That's why -- I was hoping that I wouldn't have to get involved in this. But if there's any kind of a fear of that happening --- MR. COMMISSIONER: I'm not sure what we're into here. MR. BRADY: I don't understand what Mr. Shoniker is talking about here now. Perhaps he can clear it up for me. MR. SHONIKER: Well, Mr. Crossingham of Mr. Brady's firm represented Mrs. Taylor; met with her regarding Police Act charges to be laid on -- against Mr. Gayder; gave her advice; guided her to other Counsel; met with other Counsel, Mr. Dunlop. Mr. Dunlop informs us that the relationship between Mr. -- cross-examined Mr. -- and Mrs. Taylor was clearly one of solicitor/client privilege. I mean, that it just seems to be a difficult situation in terms of --- MR. COMMISSIONER: Well, let's face that if we come to it. Let's get this one straight, otherwise --- MR. SHONIKER: You've got all the evidence 40 10/10/89 you need, in my view, to decide that one. MR. COMMISSIONER: All right. Ms. McWatt are you prepared to call Mr. Onich now. MS. MCWATT: Well, no, your honour because I needed some time to speak to him and I've been sitting in listening to the other submissions. MR. COMMISSIONER: Okay. MR. FEDORSEN: Your honour, I wonder if I might. To the extent that evidence is going to be called - -- MR. COMMISSIONER: All I'm concerned about is getting too many oars in the water on this one. MR. FEDORSEN: I'm just making a suggestion. MR. COMMISSIONER: Sure, and I'm happy to have them. MR. FEDORSEN: It seems to me that Mr. Onich may be in a position where he may have to respond to what the information was that was transmitted. Now, you may have to go that far. MR. COMMISSIONER: Yes. MR. FEDORSEN: And if it is, that seems to me to be right now the subject of privilege. I would have suggested that we consider whether or not that this stage of the proceedings be heard in camera. MR. KELLY: I have no problem with that, in 41 10/10/89 fact, I think it should be. MR. COMMISSIONER: It seems to me that that's probably the case. If this is to be something that Ms. McWatt finds when she talks to Mr. Onich, is something that might be prejudicial to him, if made public, then we will do it in camera. MS. DUNLOP: Your honour, if I may make a comment. It's been my understanding from other Counsel, as I haven't appeared at previous days this Commission has been sitting, that Mr. Brady has agreed he wouldn't be cross-examining Sergeant VanderMeer; is that correct? MR. BRADY: That's correct. MS. DUNLOP: Yes, and it troubles me -- I have no problem with reference to my client's position but I would like to put a thought or two forward to this Commission. It's troubling that Mr. Brady seems to have information with respect to Denise Taylor, Sergeant VanderMeer, Mr. Onich, Mr. Melinko. There's quite a number of people that are going to be called as witnesses at this particular phase of the inquiry, who will, in one way or another have sufficient contact with Mr. Brady that it appears it would be uncomfortable, if not even possible, for him to cross-examine them. I ask the court to consider this, and direct 42 10/10/89 its mind to the -- to the fruit of the forbidden tree doctrine. This is not a criminal case and your honour has made that point a number of times this morning, but it seems to me because it is not a criminal case that it deserves the attention that -- and some thought needs to be given to what it is exactly that is going on here. It seems to me that your honour has suggested and Mr. Brady has agreed that there are no adversarial positions here because there are no criminal charges laid. In my respectful submission, there are adversarial positions that have been going on here and have been going on since the outset of this Commission. It may not be that those positions are adversarial, in the sense of criminal charges, but that doesn't, in my respectful submission, take away from the fact that some people's interests here are not other people's interests. And it seems to me that if enough people have given Mr. Brady enough information over the course of their contact with him that it should be troubling to this court that Mr. Brady proceed at all during this phase of the Commission. I have no trouble with respect to Sergeant VanderMeer because I know that Mr. Brady has agreed that he won't cross-examine him. But I have a great deal of 43 10/10/89 trouble, and I put this forward mostly as a friend of the Commission, a friend of the court, that so many people seem to have -- and you'll hear further evidence on this, that so many people seem to be affected in one way or another by what he knows. And in my respectful submission it should be given, your honour, a great deal of pause here at this junction. And I would submit that the cases that have been put forward to you should even give more pause as they do involve criminal matters. And I'm referring to the Junior Speid case and the rules of -- I might just leave that for a minute -- The Professional Conduct handbook, as your honour pointed out, we're dealing with Rule 5, Section 13. And looking at that, there's a little sub- section there where: When the lawyer has obtained confidential information from the other party in the course of performing professional services . . . And it seems to me if some emphasis is placed on that, that if Mr. Brady did hear information during the course of providing his professional services that, in fact, those services may not be related to what's going on here, but it seems to me that if the information was given to him, even 44 10/10/89 during the course of those professional services that he was providing, that surely that information can't just sort of be swept away. And --- MR. COMMISSIONER: Isn't that what we were just about to have? either in camera, or at least a hearing on, as to whether another professional representation of Mr. Onich, he didn't receive confidential information in the course of performing those professional services which might affect his judgement or his cross-examination in this particular one. MS. DUNLOP: Well --- MR. COMMISSIONER: But that particular -- what you were just putting goes on to say: It is not, however, improper for the lawyer to act against a former client in a fresh and independent matter, wholly unrelated to any work he had previously done for that person and where such confidential information is irrelevant to that matter. That's what I have to find out. MS. DUNLOP: Well --- MR. COMMISSIONER: There's nothing new in that. MS. DUNLOP: No, there's nothing new in what I'm saying but what I am saying is that I am drawing your 45 10/10/89 honour's attention to the fact that it's not the oars that are being put in the water, as your honour indicated; that is the troubling part of this whole process is that there are so many oars in the water in which Mr. Brady has had some hand. And, in my respectful submission, that should be even more troubling in this phase of the Commission. MR. COMMISSIONER: Well, then, how long do you need to speak to Mr. Onich because we'll have to --- MS. MCWATT: Ten or fifteen minutes, your honour. MR. COMMISSIONER: Pardon? MS. MCWATT: Ten or fifteen minutes. MR. COMMISSIONER: All right. Try to make it by twenty-five to twelve, and I'll say that twenty to twelve is when we will reconvene and that gives you a little over fifteen minutes to twenty minutes. MS. MCWATT: Thank you, your honour. --- hearing adjourned 11:15 and continued in camera Certified correct: Moira Freshwater, Reporter