Paul Bickford
Northern News Services

Yellowknife (Apr 08/02) - The cost of providing Legal Aid in the NWT may rise because of a recent judicial decision.

The ruling removed a lawyer from a case for a perceived conflict of interest involving a Crown witness.

"There could be serious implications," says Greg Nearing, the executive director of the NWT Legal Services Board in Yellowknife.

If such removals of lawyers occur in the future and Legal Aid is involved, the cost will rise, especially if a second lawyer has to be sent to a one-lawyer community.

"We're doubling our costs and adding transportation costs on top," Nearing explains.

Legal Aid is also suffering from a shortage of lawyers.

Question of conflict

In a mid-February decision, Justice John Vertes of the NWT Supreme Court ruled Fort Smith lawyer Lou Sebert could not represent a client charged with rape because Sebert had previously represented a Crown witness.

The question of conflict arose at a trial in Fort Smith in December. The trial was adjourned and the matter was referred to Vertes.

While praising Sebert's reputation and integrity, Vertes still believed the situation created perceived conflict of interest.

"The case before me is not one of an actual conflict but one of the appearance of a conflict," Vertes wrote.

The judge also accepted Sebert's statement that he has no specific recollection of past conversations with the witness and did not know anything that could be used against the person on cross-examination.

"But is that enough to assure one that the public's perception of the administration of justice will not be adversely affected?" the judge wrote.

Lawyer faces dilemma

For his part, Sebert expressed the dilemma his removal from the case could mean for small-town lawyers.

In an affidavit, he stated he has likely represented members of virtually every permanent family in Fort Smith.

Sebert wrote it is "simply not possible or feasible" for him to declare a conflict regarding all former clients. "Were I to do so, I would not be able to continue my practice in this community nor would I be able to represent the individuals residing here."

It is possible the judge's ruling can affect more than defence lawyers.

Nearing says he can contemplate a scenario in which a Crown attorney may have gained information from a witness or complainant who subsequently appears as the accused.

"It's always hard to predict what effect a case will have," says Louise Charbonneau, the director of the federal prosecution service in the NWT.

She says each case is "fact-specific" and would have limited value in setting any precedent, noting the judge used existing principles of law to make his decision.

Charbonneau also explains that, while all lawyers have the same ethical obligations, prosecutors don't have clients. "We're in a different situation than a defence lawyer retained by one person," she says.

However, she says there may be situations in which prosecutors have previously worked closely with witnesses.

Nearing says it is conceivable the ruling will affect court workers and RCMP officers prosecuting cases before a justice of the peace. The ruling also has potential national implications.

"It's a Supreme Court judgment and it could be followed in other jurisdictions," Nearing says, noting numerous small towns in Canada have only one lawyer.