IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On May 10, 2016, Mr. Lam pleaded guilty to possessing two kilograms of cocaine for the purpose of trafficking.  After pleading guilty, his then-lawyer, Larry Myers, Q.C. sought a judicial stay of proceedings, alleging an abuse of process based on derivative entrapment.  Following a hearing, that application was dismissed.  Before his sentencing, Mr. Lam discharged Mr. Myers and hired new lawyers; Mr. Westlake and Mr. Song.  Those lawyers apply to strike Mr. Lam’s guilty plea. 

[2]           The application to strike the guilty plea is based on an allegation of ineffective assistance of counsel.  The defence argues that Mr. Myers did not exercise reasonable professional judgment before, during and after Mr. Lam’s guilty plea, and it would be a miscarriage of justice to allow the guilty plea to stand.

[3]           The Crown opposes the application to strike the plea.  The Crown argues that Mr. Lam received the assistance of counsel “within the wide range of reasonable professional assistance”, and, in any event, has not demonstrated any prejudice.

[4]           Mr. Lam and Mr. Myers both filed affidavits and testified at the hearing. 

[5]           The defence alleges several areas in which Mr. Myers’ conduct was ineffective and fell below the standard of reasonably professional judgment.  Before outlining these areas, I will set out some background facts and the legal framework for my analysis.

[6]           Mr. Lam was charged with two counts of trafficking in cocaine and one count of possession of cocaine for the purpose of trafficking.  His co-accused, Minh Tran was charged with Mr. Lam on the trafficking counts, but not the possession for the purpose of trafficking count.

[7]           In the investigation that led to the charges, the police initially targeted Ms. Tran, with the goal of investigating her boyfriend for drug offences.  In the undercover operation that ensued, Ms. Tran ultimately sold cocaine to the undercover officers on two occasions.  It was alleged that Ms. Tran obtained the cocaine from Mr. Lam before selling it to the officers, and met with Mr. Lam after the two sales.

[8]           Using the evidence obtained from the trafficking investigation, police obtained a warrant to search Mr. Lam’s apartment.  In the apartment, the police found over two kilograms of cocaine, along with cutting agents, packaging material, and over $45,000 in cash.

[9]           Mr. Lam retained Mr. Myers to represent him.  A preliminary inquiry for Mr. Lam and Ms. Tran was held over the course of three days in January and May of 2015.  Mr. Myers attended and cross-examined two police witnesses.  Before the completion of the preliminary inquiry, Mr. Lam consented to his committal to Supreme Court for trial.

[10]        Ms. Tran then pleaded guilty before Romilly, P.C.J.  She brought an application for a judicial stay of proceedings.  She argued that she had been entrapped by the police into committing the trafficking offences.  The entrapment hearing took place over the course of 6 days in November of 2015, and February and April of 2016.  Judge Romilly reserved his decision.

[11]        On April 20, 2016, Mr. Lam re-elected back to Provincial Court, while awaiting Judge Romilly’s decision.  On May 10, 2016, he pleaded guilty to the possession for the purpose of trafficking offence in Provincial Court.  Mr. Myers was not in court for the guilty plea; Mr. Lam was represented by an articling student.  After entering the plea, the Crown, on behalf of Mr. Myers, advised the Court that Mr. Lam reserved the right to rely on any abuse of process that may be found by Judge Romilly in relation to Ms. Tran. 

[12]        On June 3, 2016, Judge Romilly found that Ms. Tran had been entrapped by the police and stayed the proceedings against her.  Judge Romilly retired soon after this decision, so Mr. Lam’s matter was set before me.

[13]        After Judge Romilly’s ruling, Mr. Myers brought two applications on behalf of Mr. Lam.  In the first application, Mr. Myers argued that the Crown should be estopped from proceeding against Mr. Lam because Judge Romilly found that his co-accused, Ms. Tran, had been entrapped.  I found that the doctrine of issue estoppel did not apply because there was no mutuality of parties or mutuality of offences; Judge Romilly’s ruling was regarding Ms. Tran, not Mr. Lam, and was for the trafficking offences, as opposed to the possession for the purpose of trafficking offence.

[14]        In his second application, Mr. Myers sought a judicial stay of proceedings, based on abuse of process.  The evidence for this application was heard on April 10, 11, and 12, 2017.  Mr. Myers was unable to attend the evidentiary hearing in April because he was double-booked that week with a murder trial.  He arranged for a junior associate at his firm, Chantal Paquette, to attend on his behalf.  At the time of the hearing, Ms. Paquette had only been called to the bar for seven months.

[15]        Oral submissions on the application were heard on May 10 and 11, 2017.  Mr. Lam was represented by Mr. Myers and Ms. Paquette for this part of the hearing.  Detailed written submissions were also filed by the Crown and defence.  Mr. Myers argued that it would be an abuse of process to allow the proceedings to continue against Mr. Lam, given Judge Romilly’s finding that Ms. Tran had been entrapped by the police into committing the offences.  He argued that Mr. Lam had been “derivatively entrapped” by the police.  He also argued that all information obtained from the entrapment of Ms. Tran should be excised from the ITO, rendering the search of Mr. Lam’s apartment illegal.

[16]        On May 24, 2017, I dismissed Mr. Lam’s application for a stay of proceedings finding there was no abuse of process.  Mr. Lam discharged Mr. Myers before his sentencing and hired his present lawyers.  By the time Mr. Lam discharged Mr. Myers, he had paid him $89,000 in legal fees.

[17]        The importance of effective assistance from counsel has long been recognized in the Courts.  In R. v. GBD 2000 SCC 22 (CanLII), [2000] 1 SCR 520, Major, J., for the Court, held that the right to effective assistance of counsel is a principle of fundamental justice.  He said there are two components to the determination of a claim of ineffective assistance of counsel; a performance component and a prejudice component:

[18]        Major, J. held that the assessment of the performance of counsel should be avoided in cases where it is “apparent” that no prejudice has occurred (para. 29).  This procedure was addressed by Dickson, J. in the recent case of R. v. Ball 2019 BCCA 32, an appeal based on alleged ineffective assistance of counsel:

[19]        Mr. Lam does not argue that there is a reasonable probability that the outcome of the proceedings would have been different, but for the errors of counsel.  Instead, he grounds his claim of a miscarriage of justice on procedural unfairness.  He argues that the cumulative effect of Mr. Myers’ conduct created an appearance of unfairness. 

[20]        Mr. Lam does not challenge the validity of his guilty plea under the traditional test, as recently addressed in R. v. Wong, 2018 SCC 25.  Instead, he relies upon the Court’s residual discretion to set aside a guilty plea.  The Crown accepts that the Court has a residual discretion to set aside a guilty plea in some circumstances, even where the plea is otherwise valid.  This discretion was set out in R. v. Cherrington 2018 ONCA 653:

[21]        A miscarriage of justice can occur in cases where unfairness or the appearance of unfairness is demonstrated.  In R. v. Stark 2017 ONCA 148 the Court held that a miscarriage of justice can occur where the incompetent representation of counsel undermined the appearance of fairness of the trial proceeding (at para. 14).

[22]        “Miscarriage of justice” can take on many forms.  It must be assessed on a case-by-case basis.  In Ball, Dickson, J. adopted the description of miscarriage of justice from R. v. Davey, 2012 SCC 75:

[23]        There are a number of factors to consider in determining whether irregularities in the proceedings are so serious that they constitute a miscarriage of justice.  These factors were addressed by Dickson, J. in Ball, relying upon R. v. Khan, 2001 SCC 86:

[24]        The irregularities alleged by Mr. Lam are based upon acts and omissions of his previous counsel, Mr. Myers.  Mr. Lam argues that Mr. Myers’ representation fell below the expected standard of reasonableness.  He argues that the cumulative effect of the acts and omissions by Mr. Myers created an unfairness to Mr. Lam, or at least an appearance of unfairness.

[25]        There is no dispute that Mr. Lam has a high bar to meet to establish ineffective assistance of Mr. Myers.  There is a “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance” and the “wisdom of hindsight has no place in this assessment”:  R. v. GDB at para 27.

[26]        The Crown argues that Mr. Lam has not established any prejudice, and the Court need not go further to address the allegations of ineffective assistance of counsel.  The Crown argues that Wong makes it clear that an accused must establish prejudice on a subjective basis before a court will consider vacating a guilty plea.

[27]        Mr. Lam argues that he does not need to establish subjective prejudice as required in Wong because he alleges a miscarriage of justice based on the appearance of unfairness.  He argues that the test for an appearance of unfairness is based upon the perspective of a reasonable objective observer.

[28]        The Court in Wong addressed an application to set aside a guilty plea on the basis that it was uninformed; the accused was uninformed of the collateral immigration consequences when he entered his guilty plea.  The majority decision held that the test for whether the guilty plea was uninformed is an objective one, but the test for prejudice is to be assessed subjectively.  The Court held that the ineffective assistance of counsel framework was not applicable to the case, because the source of the misinformation was not relevant (para. 24).

[29]        I agree with the defence that the circumstances and analysis in the case before me differ from those in Wong.  I also agree that the analysis of prejudice in this case cannot be divorced from the performance analysis.  The miscarriage of justice alleged arises from the cumulative effect of Mr. Myers’ conduct on the appearance of unfairness.  This prejudice cannot be fully assessed, without first addressing the alleged misconduct and its effect.

[30]        The difficulty of assessing prejudice before performance was noted by Bennett, J. in R. v. Hamzehali, 2017 BCCA 290:

[31]        Having said that, I must recognize Major, J.’s direction in R. v. GDB that courts should be reluctant to wade into an assessment of counsel’s performance where it is apparent that no prejudice has occurred.  This direction was followed in Ball where Dickson, J. made a finding of prejudice before assessing the performance of trial counsel:

[32]        In my view, if the allegations of professional incompetence by Mr. Myers are established, Mr. Lam could suffer prejudice.  The allegations are related to the fairness of the proceedings, and the appearance of fairness.  The “necessary link” between the alleged professional incompetence and the potential for a miscarriage of justice has been established.  I will address first, the allegations of professional incompetence.  Next, I will address the effect that the incompetence had on the fairness, or appearance of fairness of the proceedings.  Finally, I will address whether it would be a miscarriage of justice to allow Mr. Lam’s guilty plea to stand. 

[33]        Before addressing the specific allegations made against Mr. Myers, I wish to first address the subject of credibility.  Many of the circumstances surrounding Mr. Lam’s guilty plea are not disputed between Mr. Myers and Mr. Lam.  However, some important areas are in dispute. 

[34]        I am mindful of the warnings in the case law that I must be careful when assessing the allegations made by Mr. Lam against Mr. Myers.  In R. v. Archer, 2005 CanLII 36444 (ONCA), Doherty, J.A. noted that a cautious approach must be taken to “allegations against trial lawyers made by convicted persons who are seeking to avoid lengthy jail terms” (para. 141).  Apart from the possibility that the allegations could be fabricated, an offender’s beliefs regarding his lawyer’s advice may be distorted by the perspective of hindsight (para. 142).

[35]        I must also be cautious when assessing Mr. Myers’ evidence, since it, too could be distorted by the perspective of hindsight.  Mr. Myers’ evidence posed some challenges.  He testified about discussions he had with Mr. Lam that occurred years ago.  He was unable to refresh his memory from his notes because he did not make any notes over the course of his representation of Mr. Lam.  Nor, did he keep any other records of his meetings with Mr. Lam, his advice to Mr. Lam, or his instructions from Mr. Lam.  This significantly hampered my ability to assess Mr. Myers’ credibility and reliability.

[36]        Mr. Myers testified that it is his standard practice to not make any notes.  He said the following:

[37]        Aside from the self-serving nature of this comment, it did not make any sense to me.  Mr. Myers did not explain how notes of his dealings with Mr. Lam would be “vulnerable”.  He attempted to justify his failure to take notes later in his cross-examination.  He said he did not have any notes of his meetings with Mr. Lam because he did not expect Mr. Lam to testify.  He went on:

[38]        Mr. Myers’ evidence does not explain why he would not have notes of the following:

[39]        Mr. Myers also failed to keep proper records of his correspondence and other communications on the file.  Mr. Myers sent Mr. Lam’s file to Mr. Westlake after Mr. Lam hired Mr. Westlake.  Mr. Myers said that he reviewed the file after it was delivered to Mr. Westlake and it was not complete.  Mr. Westlake sent repeated letters to Mr. Myers requesting copies of Mr. Myers’ records of correspondence and communications on the file.  Mr. Myers initially testified that all copies of correspondence on Mr. Lam’s file from his office computer would have been saved electronically on the computer.  He then said some things did not get saved.  He then said that the electronic copy would not be saved - it would be deleted once a hard copy was printed up. 

[40]        In response to Mr. Westlake’s requests for further information, Mr. Myers first testified that he had already forwarded the material to Mr. Westlake through his lawyer, Mr. Oppal.  He then said that Mr. Oppal was not certain whether Mr. Myers had sent him anything.  Finally, Mr. Myers said he was not sure if he had ever sent materials to Mr. Oppal to send to Mr. Westlake.  At the end of his testimony, Mr. Myers agreed to send the material to Mr. Westlake.  This was not done.

[41]        Mr. Myers testified that he did not keep copies of any emails he sent on Mr. Lam’s file.  He said he deleted them all. 

[42]        A lawyer’s duty to take notes and keep proper records was addressed by Bennett, J.A. in R. v. Hamzehali, 2017 BCCA 290.  On appeal after being convicted of sexual assault and assault, the appellant alleged ineffective assistance of counsel.  Bennett, J.A. admonished the appellant’s trial lawyer for his failure to keep any notes of plea discussions and his failure to obtain written instructions regarding the refusal of the plea offer:

[43]        Mr. Myers has been a lawyer for 40 years.  His failure to take notes and keep proper records of his representation of Mr. Lam has made the search for the truth much more difficult.  I am left with the recollections of Mr. Myers and Mr. Lam of interactions that occurred years ago, without any objective verification.  Mr. Myers failed in his duty to his client, and to the profession, when he made no notes and did not keep proper records.  This failure is relevant, not only to my assessment of Mr. Myers’ credibility and reliability, but also to my assessment of whether it would be a miscarriage of justice to allow Mr. Lam’s guilty plea to stand. 

[44]        Beyond the failure to make notes and keep proper records, Mr. Lam argues that Mr. Myers’ representation failed to meet the standard of reasonably professional judgment in three other areas:

[45]        I will address each allegation separately.

[46]        Mr. Lam argues that Mr. Myers failed to properly canvass a valid defence, when he failed to challenge the search of Mr. Lam’s apartment.  His complaints in this area are two-fold:

[47]        The accused in Yee and Wong were charged in proceedings related to the investigation against Mr. Lam.  They challenged the admissibility of evidence obtained in the search of Ms. Wong’s apartment.  Judge Galati rendered a decision on the application on December 18, 2015, several months before Mr. Lam entered his guilty plea.  Judge Galati reviewed the same Information to Obtain (“ITO”) as was used for the search warrant for Mr. Lam’s apartment.  Judge Galati made the following findings in the decision:

[48]        Mr. Myers testified that he was aware of the progress of the related prosecutions and had discussed them with Crown Counsel.  He said he learned about Judge Galati’s decision from the Crown after it was handed down.  He said he did not get a copy of the decision, did not read the decision, and did not talk to the defence counsel representing the accused in that case.  He agreed in cross-examination that he should have contacted defence counsel about the decision. 

[49]        Mr. Myers testified that he intended to challenge the search warrant as he was preparing for Mr. Lam’s trial.  He said he arranged with the Crown for the attendance of the affiant for cross-examination.  He testified that he was not optimistic that he would be successful, but he believed “it was all I had” as a defence and he “was certainly going to exhaust that area”.

[50]        Mr. Lam argues that Mr. Myers was incompetent when he advised Mr. Lam to plead guilty without fully exploring Judge Galati’s decision and the impact it could have on an a challenge to the search of Mr. Lam’s apartment.

[51]        The Crown submits that Mr. Myers’ conduct fell within the range of reasonable professional assistance, and it was unnecessary for him to have read Judge Galati’s decision because:

[52]        Much of the Crown’s submission is based on hindsight; it focuses on the effect of Mr. Myers’ conduct, as opposed to the propriety of the conduct at the time.  There was no evidence that Mr. Myers knew that the grounds for the searches were different when he advised Mr. Lam to plead guilty.  Nor was there evidence that Mr. Myers knew that Judge Galati’s criticisms of the misleading information did not relate to the grounds for the search of Mr. Lam’s apartment.  Mr. Myers had not read the decision, or talked to defence counsel on the case.  The most he could say in his cross-examination was that Judge Galati’s findings “are far different than I – I would have thought would’ve been the findings in regard – the basis of the affiant’s affirmation in regards to Ms. Tran and Mr. Lam were far different”.  But this was after he read from the decision in the course of his cross-examination.  He had not read the decision prior to that.  Furthermore, he was not aware of Judge Galati’s findings regarding his residual discretion until he read the decision in the course of his cross-examination. 

[53]        In my view Mr. Myers should have read the decision by Judge Galati, or at least talked to defence counsel involved in the case about the decision.  He admitted as much in cross-examination.  I do not believe it was reasonable for him to have simply relied upon the information provided by the Crown.  If a challenge to the search warrant was, indeed, the only possible defence he had available, Mr. Myers should have taken further steps to explore the viability of this defence, before encouraging Mr. Lam to plead guilty.  I agree that Mr. Myers failed to provide reasonable professional assistance when he failed review Judge Galati’s decision or failed to, at least, talk to defence counsel about the decision.

[54]        Mr. Lam testified that he did not want to plead guilty.  He said he wanted to challenge the search of his apartment.  He said he asked Mr. Myers about challenging the search warrant, but Mr. Myers did not listen to him.  He said Mr. Myers did not pay attention to anything he said, but was only concerned about getting more money from him.  Mr. Lam said Mr. Myers got meaner to him as time progressed, and told him to “beat it” if he couldn’t afford his fees.  Mr. Lam testified that he felt he was “in too deep” with Mr. Myers to get a new lawyer; he said he had paid him “so much already”, and was afraid that he would have to pay a “whole new lawyer” the same fees over again if he lost Mr. Myers. 

[55]        Mr. Lam said that Mr. Myers told him that the only way he could win the case was by pleading guilty and arguing entrapment.  Mr. Lam said Mr. Myers was the lawyer, so he trusted him when he said that pleading guilty was the best way to win.  He said Mr. Myers did not tell him that he would lose his ability to challenge the search warrant by pleading guilty.

[56]        Mr. Myers’ evidence was unclear regarding his advice to Mr. Lam on a potential challenge to the search warrant.  At one point in cross-examination, he testified that he was not sure when he gave up on challenging the validity of the search warrant, but it was some time before April 14, 2016, when he and the Crown discussed having Mr. Lam plead guilty.  Later in his cross-examination, Mr. Myers said he never abandoned the challenge to the search warrant. 

[57]        Mr. Myers testified that, even after Mr. Lam pleaded guilty, he believed he could still seek excision of the ITO.  He said that, as part of his argument on derivative entrapment, he could seek the excision of any information obtained from the entrapment of Ms. Tran from the ITO for Mr. Lam’s search warrant.  He was asked in cross-examination if he had any authority to support this proposition.  He said there wasn’t a ruling that was “explicitly on point”, but there was “derivative and collateral entrapment language in the law” that supported his position.  He was unable to refer to any cases that contained this language, or supported this argument. 

[58]        I found it remarkable that Mr. Myers maintained this position in his cross-examination, but was unable to cite any authorities in support.  This issue arose in the course of Mr. Myers’ submissions at Mr. Lam’s abuse of process application.  In those submissions, Mr. Myers argued that the Court should excise all the information gathered by the police from Ms. Tran’s entrapment, from the ITO for the search of Mr. Lam’s residence.  The Court questioned this submission at the time, given Mr. Lam’s guilty plea.  The Court asked Mr. Myers if he had any authority to support his argument.  Mr. Myers considered the inquiry over the break and said the following when he returned:

[59]        Mr. Myers did not have any authorities to the Court then, nor was he able to provide any authorities in his cross-examination.  He advised the court then not to give any particular weight to his argument, yet he insisted in his cross-examination on this application that he was able to challenge the search warrant after a guilty plea.

[60]        Mr. Myers agreed in cross-examination that he could have brought a Charter application at trial to exclude the evidence from the search by seeking to excise the portions of the ITO that were derived from Ms. Tran’s entrapment.  But he believed that he was more likely to succeed on an abuse of process argument based upon the collateral or derivative entrapment of Mr. Lam.  And, he believed his client had to plead guilty before this argument could be advanced.

[61]        Mr. Myers was asked in cross-examination why he did not pursue both avenues:  a challenge to the search warrant, and a remedy for abuse of process based upon derivative entrapment.  He said he was not sure whether he could bring both.  He said he did not think he would be successful with the entrapment argument if he had lost the Charter challenge to the search, based upon the same argument.  He said he also did not think Mr. Lam would have standing to argue for the excision of portions of the ITO for the search of his apartment, based upon the breach of a third party’s rights – i.e. the entrapment of Ms. Tran.  He did not explain how Mr. Lam’s standing to make this argument would improve after he pled guilty.

[62]        There is no dispute that Mr. Myers advised Mr. Lam to plead guilty and abandon a Charter challenge to the search warrant at trial.   Mr. Lam argues that this advice was incompetent because:

[63]        The Crown argues that Mr. Myers’ decision to abandon the Charter challenge to the search at trial was sound.  The Crown concedes that the argument on derivative entrapment was novel, but argues that this is what defence counsel do; defence counsel must be permitted to argue difficult cases and raise new arguments, without fear of personal consequences.  In any event, the Crown argues, Mr. Myers’ conduct fell within the wide range of reasonable professional assistance.

[64]        I agree with the Crown that defence counsel are often called upon to make novel arguments that, at times, are not supported by case authorities.  Mr. Myers’ arguments on derivative entrapment and abuse of process were, indeed, novel.  I held that the cases he relied upon did not apply because Mr. Lam was charged with a different offence that was committed at a different time - four days later - from Ms. Tran’s offences.  As for the abuse of process argument, I held that there was not a sufficient link between the offences committed by Ms. Tran and Mr. Lam’s offence, and that the offences were not created by police misconduct. 

[65]        However, bearing in mind the need to respect defence counsel’s pursuit of novel arguments, and bearing in mind the high bar that needs to be met before incompetence is found, I do not find that Mr. Myers was incompetent in advancing these arguments.  Although I believe the arguments were somewhat of a stretch, they were not without some legal foundation. I do not believe Mr. Myers’ decision to argue abuse of process and derivative entrapment falls outside the “wide range of reasonable professional assistance”:  R. v. GDB at para. 27.

[66]        The defence argues that Mr. Lam had better chances of success by challenging the search at trial, than by arguing abuse of process after a guilty plea.  I agree with the defence that, in strictly legal terms, there may have been a stronger argument to seek excision of illegally obtained information from the ITO in a challenge to the search warrant at trial.  But, as pointed out by Mr. Myers, he would face the hurdle of seeking a remedy for an alleged breach of Mr. Lam’s rights, based on a breach of the rights of a third party (Ms. Tran).

[67]        There were also tactical reasons that informed Mr. Myers’ advice.  If Mr. Lam did not plead guilty, the matter would remain in Supreme Court.  Mr. Myers would face the additional hurdle of convincing a Judge in Supreme Court to follow Judge Romilly’s decision that Ms. Tran was entrapped, and then find that the evidence arising from that entrapment should be excised from the ITO for the search of Mr. Lam’s apartment.  The alternative was to plead guilty in Provincial Court and argue abuse of process and derivative entrapment before Judge Romilly.  At the time Mr. Myers expected the matter to be heard by Judge Romilly.  He did not know that it would be heard by another Judge because of Judge Romilly’s retirement.

[68]        Given these legal and practical hurdles, I do not believe that Mr. Myers’ advice to Mr. Lam to plead guilty was outside the wide range of reasonable professional assistance.  This advice was given in good faith, and with Mr. Lam’s best interests in mind:  GDB at paras 34 & 35.

[69]        With one exception.  Mr. Myers’ advice to Mr. Lam to plead guilty before challenging the search warrant at trial was based, in part, on Mr. Myers belief that he could still challenge the search warrant after Mr. Lam had pled guilty.  On this point, I do not believe Mr. Myers’ conduct can be justified on the basis of seeking to advance a novel argument.  Mr. Myers had no legal foundation and provided no rational justification for his belief in this regard, despite being given repeated opportunities.  In my view, he did not exercise reasonable professional assistance when he proceeded on the basis that he could still challenge the search warrant after Mr. Lam had pleaded guilty.

[70]        In conclusion, I do not find that Mr. Myers’ recommendation to his client to plead guilty and argue abuse of process was incompetent.  I do, however, find that Mr. Myers failed to properly advise Mr. Lam of all of the consequences of pleading guilty.  Mr. Lam wanted to challenge the warrant.  Mr. Myers thought he could still challenge the warrant, even after Mr. Lam pleaded guilty.  He failed to inform Mr. Lam that he would lose his ability to challenge the search warrant when he pled guilty.  In this regard, he failed to provide reasonable professional assistance.

[71]        I have found that Mr. Myers did not provide reasonable professional assistance when he failed to review Judge Galati’s decision and failed to advise Mr. Lam that he would lose his ability to challenge the search of his apartment by pleading guilty.  I must next determine the effect of this conduct on the fairness, or appearance of fairness, of the proceedings. 

[72]        The defence argues that, had Mr. Myers filed a Charter challenge to the search warrant, and cross-examined the affiant, “the same adverse findings [that Judge Galati made] against the affiant could have occurred in Mr. Lam’s case”.  But the defence has not pointed to any valid area for cross-examination of the affiant in relation to the search of Mr. Lam’s apartment.  Nor has the defence pointed out any basis for a court to exercise its residual discretion and set aside the warrant in relation to this search.

[73]        I accept that the defence does not need to show that the outcome would have been different when relying upon the argument based upon an unfair process, or the appearance of unfairness.  But there must be some indication that a challenge to the search warrant has merit before a finding of unfairness or appearance of unfairness could be made. 

[74]        In Khan, Justice LeBel, J. stated that, when assessing a miscarriage of justice claim, the Court must look at the gravity of the irregularity, and whether it was central to the case, or peripheral.  I accept that a challenge to the search of Mr. Lam’s apartment could have been central to Mr. Lam’s defence.  But I am unable to assess the gravity of the failure to challenge the warrant without some evidence of some merit to a challenge.  There must be some indication that the failure to challenge the search warrant could have influenced the verdict:  Khan at para. 76.  As noted by LeBel, J., “what matters most is the effect of the irregularity on the fairness of the trial and the appearance of fairness” (para. 84). 

[75]        The defence has not shown that there was any basis to challenge the search of Mr. Lam’s apartment.  It is not enough to argue that Judge Galati found that the affiant subverted the prior judicial authorization process in relation to the search of Ms. Wong’s apartment.  Without any evidence linking these findings to the search of Mr. Lam’s apartment, there is no basis to find that a Judge could have made similar findings in Mr. Lam’s case.

[76]        In my view, Mr. Myers’ failure to explore the effect of Judge Galati’s ruling on a potential challenge to the search of Mr. Lam’s apartment, on its own, does not, establish a miscarriage of justice.  Nor does Mr. Myers’ failure to advise Mr. Lam that he would lose his ability to challenge the warrant, on its own, establish a miscarriage of justice.  I will, however, consider these findings again when addressing the defence submission that the cumulative effect of Mr. Myers’ incompetent acts and omissions amounted to a miscarriage of justice.

[77]        Mr. Lam argues that the circumstances surrounding his guilty plea were unfair, or had the appearance of unfairness.  Mr. Lam alleges the following:

[78]        This last point can be addressed briefly.  Mr. Myers agreed that an unsupervised articling student appeared in court with Mr. Lam when he entered his guilty plea.  He said he had made arrangements with a local lawyer, David Baker, to appear on his behalf.  He said, unbeknownst to him, that lawyer arranged for an articling student to appear with Mr. Lam, unsupervised.  Mr. Myers testified that Mr. Baker is a good lawyer whom he assumed would have made proper arrangements to supervise the articling student.  Mr. Myers had no notes or records of his instructions to Mr. Baker.  Mr. Baker was not given the opportunity to provide evidence of the instructions he received from Mr. Myers.

[79]        As Mr. Lam’s lawyer, it was Mr. Myers’ responsibility to ensure that Mr. Lam’s guilty plea was properly supervised.  Mr. Lam pleaded guilty to a serious offence, with a maximum sentence of life imprisonment.  He should not have been permitted to plead guilty without the supervision of a lawyer in court.  Having said that, Mr. Myers’ evidence that he expected Mr. Baker to make proper arrangements was not contested.  As a result, on the evidence before me, I am unable to find that Mr. Myers breached his professional obligations in this regard.

[80]        The other circumstances behind the allegation that the guilty plea was unfair are largely undisputed.  Mr. Myers does not dispute that he advised Mr. Lam to plead guilty before Judge Romilly’s decision was delivered.  Nor does he dispute that he told Mr. Lam that his best strategy was to plead guilty and argue abuse of process based on derivative entrapment.   

[81]        Mr. Myers’ strategy for Mr. Lam depended on a positive ruling from Judge Romilly.  He agreed in cross-examination that it was “fundamentally important” to receive Judge Romilly’s ruling on whether the co-accused was entrapped before Mr. Lam entered a guilty plea.  Yet he also agreed that he advised Mr. Lam to plead guilty before Judge Romilly gave his ruling.  Mr. Myers testified that he anticipated a favourable ruling from Judge Romilly.  He clarified: “at least the evidence came out as we expected”. 

[82]        Mr. Myers was taking a risk in having Mr. Lam plead guilty before knowing how Judge Romilly would rule on Ms. Tran’s entrapment application.  If Judge Romilly found Ms. Tran had not been entrapped, then Mr. Lam would have to proceed directly to sentencing.  The risk paid off when Judge Romilly found Ms. Tran had been entrapped and the stage was set for Mr. Lam’s abuse of process argument based on derivative entrapment.  In the result, the risk taken had no impact on the actual fairness of the proceedings.

[83]        As for the appearance of fairness, I find that the risk taken by Mr. Myers was a calculated risk made in good faith.  Mr. Myers testified that he advised Mr. Lam that he would be sentenced by Judge Romilly if Judge Romilly’s decision regarding entrapment was not favourable to the defence.  He said he discussed with Mr. Lam the risk of staying in Supreme Court.  He encouraged Mr. Lam to plead guilty in Provincial Court because he believed he would receive a significantly lower sentence than he would face in Supreme Court; the Crown had agreed to drop the trafficking charges against Mr. Lam and seek a sentence of 3 years if he re-elected to Provincial Court and plead guilty before Judge Romilly.  Mr. Myers testified that Mr. Lam understood these consequences. 

[84]        Mr. Lam agreed that he had fulsome discussions with Mr. Myers about pleading guilty and agreed it was a “monumental undertaking”.  He understood there would be “significant consequences” to him if the abuse of process application failed.  Mr. Lam was not asked about Mr. Myers’ instructions regarding the risks of Supreme vs. Provincial Court, or the Crown’s agreement to ask for 3 years jail.  So Mr. Myers’ evidence on this point is not disputed. 

[85]        I am satisfied from this evidence that Mr. Lam understood that he would proceed directly to sentencing if Judge Romilly found Ms. Tran had not been entrapped.  In that sense, his guilty plea was informed.  Mr. Lam was no stranger to the criminal justice system:  R. v. T. (R.).  He had pleaded guilty to the same offence, possession for the purpose of trafficking, in 2007, and proceeded directly to sentencing, where he received a conditional sentence of 12 months.

[86]        Mr. Lam’s guilty plea was not, however, fully informed.  As I have already stated, Mr. Myers failed to inform Mr. Lam that he would lose his ability to challenge the search of his apartment when he plead guilty.  I have dealt with this issue earlier in my reasons, and will address it again when considering the cumulative effect of Mr. Myers’ failure to provide reasonable professional assistance.

[87]        Mr. Lam’s abuse of process application was set for hearing for six days in April 2017.  Mr. Myers was double-booked on a murder trial for the first four days of the hearing.  He arranged for a junior associate at his office, Chantal Paquette, to conduct the evidentiary portion of the hearing in April 2017, in his stead.  Mr. Myers and Ms. Paquette then both attended for closing submissions on May 10 and 11, 2017.

[88]        Mr. Lam testified that he had hired Mr. Myers and expected him to represent him at the evidentiary hearing in April.  He said that Mr. Myers did not tell him that he was unavailable, or that Ms. Paquette would be replacing him for the hearing.  He said he had never met Ms. Paquette before.  When she showed up at the evidentiary hearing, Mr. Lam did not know that she had been a lawyer for only 7 months. 

[89]        Mr. Myers testified that Mr. Lam had met Ms. Paquette at his office some time before the hearing, and had spoken to her on the phone.  Mr. Myers said he obtained instructions from Mr. Lam for Ms. Paquette to conduct the evidentiary portion of the hearing on his behalf.  He said he would have applied to adjourn the hearing if Mr. Lam did not agree to Ms. Paquette’s representation.  Mr. Myers did not have any notes of any meetings or discussions between Mr. Lam and Ms. Paquette.  Nor did he have any written confirmation of his instructions from Mr. Lam.  

[90]        Mr. Myers’ evidence on this issue in cross-examination was not entirely clear.  He said he began discussing with Mr. Lam the possibility of Ms. Paquette appearing in his stead “I’m assuming within weeks or months prior to the trial approaching”.  He was asked when he made the final decision to have her appear.  He said “I can’t say for sure.  Weeks before, at least.”  Later in his cross-examination he said that, as of April 4, 2016, he had still not decided whether to apply to adjourn the hearing or have Ms. Paquette appear.  This was six days before the hearing was scheduled to start.

[91]        Mr. Myers initially testified that he did not believe he met with Mr. Lam to discuss this matter.  He said he talked to him on the phone because Mr. Lam was busy working.  Then, he said that the discussion went on for a few days to a week.  When Mr. Myers was questioned further about this subject on the second day of cross-examination, he said he did not recall the date or location of these conversations.  He said it was “likely by phone”.  Then he said it was “probably” by phone and in person.  Then he said he had a “clear recollection of having numerous calls” with Mr. Lam about Ms. Paquette appearing.

[92]        Mr. Myers testified that he tried to be patient because Mr. Lam initially did not want Ms. Paquette to appear.  He said he knew Mr. Lam had a great deal of confidence and trust in him and he was concerned that Mr. Lam also have trust and confidence in Ms. Paquette.  Mr. Myers said he was careful to ensure that Mr. Lam agreed to, and was comfortable with, Ms. Paquette appearing in his stead.  Despite this purported care and concern, Mr. Myers did not keep any notes of these conversations, obtain written instructions from Mr. Lam, or even confirm Mr. Lam’s instructions by letter. 

[93]        Mr. Myers testified that he sent an email to Ms. Paquette confirming his instructions from Mr. Lam.  He said that he would provide a copy of this email to Mr. Westlake, but never provided it.

[94]        I found Mr. Myers’ evidence on this subject to be uncertain, at times inconsistent, and overall unreliable.  It seemed to me that Mr. Myers was trying to piece together what happened, and was testifying on the assumption that Mr. Lam agreed that Ms. Paquette could appear in his stead.  Several times, when questioned specifically about his discussions with Mr. Lam about Ms. Paquette appearing, Mr. Myers veered into testimony about his discussions with Mr. Lam more generally regarding his strategy for the entrapment hearing. 

[95]        Mr. Lam’s recollection was more detailed and more reliable on this point.  He had a specific recollection of his attendance on the first day of the entrapment hearing.  He said:

[96]        I found this evidence sincere and believable.  It is consistent with Mr. Myers’ evidence about his discussions with Mr. Lam about the strategy for the hearing.  Mr. Lam knew that the evidentiary hearing involved a repeat of the evidence from Ms. Tran’s hearing.  Mr. Lam’s recollection is also consistent with Mr. Myers’ evidence that he did not consider the evidentiary hearing to be significant.  Mr. Myers testified that he did not believe it would pose any difficulties for Ms. Paquette because the evidence was expected to be the same as the evidence had been at the entrapment hearing before Judge Romilly.

[97]        I prefer Mr. Lam’s evidence on this point.  While I accept that Mr. Myers discussed general strategy with Mr. Lam, I do not accept that he obtained instructions from Mr. Lam to have Ms. Paquette appear in his stead. 

[98]        Mr. Lam argues that Mr. Myers should have applied to adjourn the hearing, rather than have Ms. Paquette attend on his behalf.  He says that Mr. Myers did not provide reasonable professional representation when he failed to obtain instructions from Mr. Lam for Ms. Paquette to appear, and failed to inform Mr. Lam that Ms. Paquette had only been a lawyer for 7 months.  Mr. Lam hired Mr. Myers, a lawyer of 40 years’ experience to represent him.  He paid Mr. Myers $89,000 to represent him.  He did not hire, or pay for, a lawyer with only 7 months experience to represent him.

[99]        Mr. Lam argues that Mr. Myers was further incompetent when he instructed Ms. Paquette to file the transcripts from Ms. Tran’s hearing as evidence at Mr. Lam’s evidentiary hearing.  Mr. Myers spent weeks before the evidentiary hearing trying to get the Crown to agree that he could file transcripts of the six days of evidence from Ms. Tran’s entrapment hearing to obviate the need for viva voce evidence.  The Crown did not agree.  She advised Mr. Myers that she believed this process was improper, and provided authority from our Court of Appeal disapproving of this procedure.  Nevertheless, Mr. Myers instructed Ms. Paquette to file the transcripts.  When Ms. Paquette attempted to file the transcripts, the Court asked her for authority to justify the procedure.  Ms. Paquette said she needed time to get authority, but then withdrew her application the following day.  Mr. Myers testified that he instructed Ms. Paquette throughout this process and said he still thinks the Court should have allowed the transcripts to be filed.  Once again, he had no authority to support this position.

[100]     The Crown argues that Mr. Lam did not suffer any prejudice when Mr. Myers had Ms. Paquette appear at the evidentiary hearing.  The Crown says that, even if Mr. Myers failed to obtain instructions from Mr. Lam, it had no impact; the evidence at the hearing came out the same as that at Ms. Tran’s entrapment hearing. 

[101]     Counsel for Mr. Lam did not allege that Ms. Paquette’s representation of Mr. Lam at the evidentiary hearing was incompetent.  And appropriately so.  Ms. Paquette elicited the necessary evidence, and the hearing proceeded as expected, with no negative consequences to Mr. Lam.  But, counsel argues that Mr. Myers’ substitution of a lawyer with 7 months experience, and without instructions from Mr. Lam, leads to an appearance of unfairness.

[102]     I agree with the Crown that Mr. Lam has not established any prejudice or actual unfairness to the proceedings arising from Ms. Paquette’s conduct of the evidentiary hearing.  He has, however, established an appearance of unfairness.  Mr. Lam hired Mr. Myers and paid significant legal fees to Mr. Myers for his representation.  When Mr. Myers found himself double-booked with another file, he should have applied to adjourn the evidentiary hearing.  In the alternative, he should have obtained clear and voluntary instructions from Mr. Lam that he was content to have Ms. Paquette conduct the hearing.  He did neither.  I do not believe this conduct falls “within the wide range of reasonable professional assistance”.

[103]     Mr. Myers did not help matters when he counselled Ms. Paquette to attempt to file transcripts from Ms. Tran’s 6 day hearing, without any legal authority and without the Crown’s consent.  It made Ms. Paquette look like she did not know what she was doing, and gave Mr. Lam reason to question her competence.  In reality, her actions were driven by Mr. Myers’ cavalier instructions.

[104]     The defence argues that Mr. Myers’ conduct surrounding the evidentiary hearing is one of the many factors that contribute to a miscarriage of justice.  I will consider this point in the context of the cumulative effect of Mr. Myers’ acts and omissions.

[105]     I have found that Mr. Myers failed to provide reasonable professional assistance in the following areas:

[106]     I must also consider the cumulative effect of this conduct.  In R. v. Hamzehali, Bennett, J. held:

[107]     I make similar findings regarding Mr. Myers’ conduct.  Even if I found that his conduct in each area did not amount to incompetence, when I take into account the cumulative effect, as a whole, I find it falls below the standard of reasonable professional assistance.

[108]     Since I have found that Mr. Myers failed to provide reasonable assistance to Mr. Lam in the conduct of his defence, I must go on to determine whether it would be a miscarriage of justice to allow Mr. Lam’s guilty plea to stand.  Not every act of incompetence by a lawyer leads to a miscarriage of justice.  Nor does every irregularity in the proceedings.  The test is “whether a well-informed reasonable person considering the whole of the circumstances”, would conclude that the irregularity was “severe enough to render the trial unfair or to create the appearance of unfairness”:  R. v. Khan at paras. 69 and 73. Put another way, the irregularity must be “so serious that it shakes public confidence in the administration of justice”:  R. v. Davey, 2012 SCC 75 at para 51, citing R. v. Wolkins, 2005 NSCA 2.

[109]     Counsel for Mr. Lam made eloquent submissions on the importance of effective representation by defence counsel.  It is fundamental to the effective operation of the justice system, and crucial for accused persons facing serious criminal charges.  Counsel submits that Mr. Lam was vulnerable due to his trust in Mr. Myers and his lack of sophistication.  Counsel says that the appearance of fairness in Mr. Lam’s guilty plea was undermined when Mr. Myers did not provide reasonable professional legal assistance to Mr. Lam.  Counsel argues that the only way to address that unfairness and prevent a miscarriage of justice is to strike Mr. Lam’s guilty plea.

[110]     Counsel for Mr. Lam argues that the reputation of the criminal defence bar, and the administration of justice as a whole is damaged by the cumulative effect of Mr. Myers’ failures.  Counsel argues that the public confidence in the administration of justice is tainted further by Mr. Myers’ deliberate failure to make notes and failure to keep proper records of his representation of Mr. Lam.

[111]     The Crown argues that it would not be a miscarriage of justice to allow Mr. Lam’s guilty plea to stand.  The Crown says Mr. Lam is a sophisticated individual, with prior experience in the criminal justice system.  The Crown says that Mr. Lam was aware of Mr. Myers’ strategy in the conduct of his defence, and participated in the decisions; he knew of the consequences of pleading guilty, and knew he would be giving up a challenge to the search warrant by pleading guilty.

[112]     The Crown submits that, even if the Court finds that Mr. Myers failed to meet his professional obligations to Mr. Lam, the remedy is not to strike the guilty plea; the proper course to follow is to report the issue to the Law Society.  The Crown says Mr. Lam has not established any prejudice from the alleged acts of incompetence by Mr. Myers, nor has he shown that the administration of justice would be tainted by allowing Mr. Lam’s guilty plea to stand.

[113]     I agree with the defence that, as an accused person facing serious criminal charges, Mr. Lam was in a vulnerable position.  He had no legal expertise and placed complete reliance on Mr. Myers’ advice.  Mr. Lam was caught between a rock and a hard place when he started to have concerns about whether he was getting effective assistance from Mr. Myers; he had already given many thousands of dollars to Mr. Myers which he could not afford to simply give up and find a new lawyer, who would also require payment.  He did not know that he could complain about Mr. Myers’ conduct to the Law Society.

[114]     Mr. Lam paid significant legal fees to Mr. Myers and deserved much more for that investment than he received.  Mr. Myers should have explored the effect that Judge Galati’s decision could have on Mr. Lam’s case.  After 40 years of practice, Mr. Myers should have known that he could not challenge the search of Mr. Lam’s residence after a guilty plea, and should have advised Mr. Lam of this before he pled guilty.  Finally, Mr. Myers should not have substituted his representation with that of a newly minted lawyer without instructions from Mr. Lam.  Mr. Myers’ failure to make notes and keep proper records was further indication that he was not operating to the standards required of the legal profession.

[115]     Although Mr. Myers failed Mr. Lam several times, those failures did not, in my view, have a significant effect on the ultimate fairness of Mr. Lam’s guilty plea.  There was no evidence before me that Mr. Lam lost the opportunity to advance a viable defence.  There were practical and legal difficulties with a challenge to the search of Mr. Lam’s apartment.  There were tactical reasons behind Mr. Lam’s decision to re-elect to Provincial Court and plead guilty.  Although Mr. Myers did not fully inform Mr. Lam of the consequences of pleading guilty, Mr. Lam has not shown he was prejudiced by his failure to be fully informed.  Mr. Lam understood that he would be sentenced if Judge Romilly did not find Ms. Tran was entrapped.  Understanding that, he still voluntarily agreed to plead guilty.  He was not new to the criminal justice system.  He pleaded guilty to the same offence in 2007.  This time around Mr. Lam had 2 kilograms of cocaine in his apartment.  Although he now clearly regrets his actions, he admitted committing the offence when he testified.

[116]     After balancing all of these considerations, I find that Mr. Lam has not established that it would be unfair, or appear to be unfair, to uphold his guilty plea.  Mr. Lam has shown that Mr. Myers did not fully meet his professional obligations to him.  And he has established that Mr. Myers’ conduct reflects poorly on the legal profession.  But, Mr. Lam has not established that the effect of this conduct was so serious that public confidence in the administration of justice would be shaken if his guilty plea is upheld.  In fact, I believe the public confidence in the administration of justice would be shaken if I were to strike Mr. Lam’s guilty plea. 

[117]     It is understandable that Mr. Lam wishes to seek redress for Mr. Myers’ failure to provide professional legal assistance.  But that redress must be sought through the Law Society, not this Court.  The application to strike the guilty plea is dismissed.