March 02, 2016 - 10:30 AM
KAMLOOPS - A Crown application to have a criminal defence lawyer tossed from a case out of conflict of interest concerns was dismissed by a Kamloops Supreme Court justice last week.
Jerry Lee Lamar and Leon Francis Leclerc are both charged with aggravated assault of a peace officer and at one point both retained Don Campbell to represent them.
Lamar and Leclerc signed affidavits agreeing to be represented by Jeremy Jensen and Campbell, but due to Jensen’s unavailability for a preliminary inquiry, Campbell represented both accused for that hearing.
A preliminary inquiry is held to determine if there’s enough evidence to warrant a trial.
"Both accused have sworn affidavits asserting that it was their understanding “from the beginning” or “from the outset” that Mr. Campbell and Mr. Jensen would be representing them separately at trial, but Mr. Jensen was not available for the available preliminary hearing dates and, in order to save time and money, the accused agreed to have Mr. Campbell conduct a preliminary hearing for both of them,” Justice Ian Meiklem said in his decision.
Both accused were ordered to stand trial and since then Jensen took over Leclerc’s case again.
Crown argued that Campbell should remove himself as counsel for Lamar in the interest of fairness and suggested a conflict of interest might arise if he has to cross-examine his former client during trial.
Both accused said they stand by the confidential information they gave to Campbell about their case and their separate defences won’t conflict during trial. Campbell, who was retained by Lamar before his arrest, argued removing him from the case would be prejudicial to both defendants, create more expense and delay trial.
Meiklem said Crown intends to present a video caught on the peace officer’s dash cam which allegedly shows two men brutally assaulting the officer by kicking and stomping on his head.
"Mr. Campbell submitted that in the presently unforeseeable and unlikely event that proper defence of his client Mr. Lamar calls for him to cross-examine Mr. Leclerc, the appearance of impropriety or unfairness could be avoided by having independent counsel brought in to conduct that cross-examination,” Meiklem said. "That may or may not be sufficient to address the public confidence concerns, but it is quite a speculative possibility at this time and it is impossible to predict how the evidence will unfold at trial, so I will leave it to future consideration by the trial judge."
"On my understanding of the issues and the nature of the evidence in this case, I do not find that there is a sufficient potential risk of a future conflict of interest arising that outweighs the significant prejudice that would certainly accrue to both accused if Mr. Campbell were disqualified at this stage. When I speak of prejudice I include interference with their choice of counsel, and unnecessary cost and delay."
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