|For immediate release||January 3, 2001|
Law Society disbars lawyer
VANCOUVER – Pursuant to its statutory duty to govern B.C.'s legal profession in the public interest, the Law Society of B.C. has disbarred Richmond, B.C. lawyer Alexander Theodore Ewachniuk for professional misconduct.
A Law Society discipline hearing panel found Ewachniuk guilty of professional misconduct:
"In that he requested Crown Counsel to lay charges against two witnesses with the intention that this would intimidate them from coming to Canada to give evidence in outstanding civil proceedings."
"In that he attempted, and did in fact intimidate, the same witnesses with respect to their giving evidence at the trial."
The charges against Ewachniuk arose from his conduct in a 1991 B.C. Supreme Court trial O.E.X. Electromagnetic Inc. v. Coopers & Lybrand. The discipline hearing panel found that Ewachniuk — who represented O.E.X. in the case — intimidated two American witnesses who were crucial to the defence by implying they would be arrested if they came to Vancouver to testify on behalf of Coopers & Lybrand at the trial. The witnesses refused to attend the trial and the judge was forced to transfer the trial to St. Louis, Missouri to hear their evidence.
The discipline hearing panel also found Ewachniuk asked a member of the Crown Counsel office to lay charges against the two witnesses. The hearing panel found that Ewachniuk did this for the purpose of intimidating the witnesses. Crown Counsel refused to lay the charges.
The hearing panel — which consists of three Law Society Benchers — found Ewachniuk "attempted to subvert the course of justice." The panel said Ewachniuk's behaviour "goes against the very fundamental duties of a lawyer."
Ewachniuk's disbarment takes effect immediately. Ewachniuk has the right to appeal the hearing panel's decision.
The Law Society of B.C. was founded in 1869 and is the governing body of the legal profession in B.C. Under the provisions of the Legal Profession Act, the Law Society is responsible for the licensing, professional conduct and discipline of the more than 10,000 lawyers in B.C.
The Law Society is governed by 31 directors who are known as "Benchers." Twenty-five of the Benchers are elected by lawyers from among the profession. In addition, the provincial government appoints six non-lawyers as Benchers to ensure the public interest is represented in all Law Society decisions. The Law Society's authorized spokesperson is the executive director, James G. Matkin.
The decision of the discipline hearing panel on Facts and Verdict and on Penalty follows this news release.
For more information on the regulation and discipline of lawyers see The Legal Profession Act:
- Section 3: Law Society duty to protect the public.
- Part 4: Discipline
The Legal Profession Act is available on the Law Society of B.C. website here or the B.C. government's website at http://www.qp.gov.bc.ca/statreg.
The Law Society of B.C. makes the following documents available to the media in discipline matters:
- Hearing report
- Penalty report
- Discipline Digest and Discipline Case Digest
Discipline Hearings are generally open to the public; please check with the Law Society prior to the hearing if you wish to attend. A list of upcoming hearings is available on the Law Society's website.
Law Society of B.C.. media contact:
Brad Daisley, Public Affairs Manager
Office: 604-443-5724 or 1-800-903-5300 toll-free in B.C.
 LSBC 18
IN THE MATTER OF THE LEGAL PROFESSION ACT
IN THE MATTER OF A HEARING CONCERNING
ALEXANDER THEODORE EWACHNIUK
(A member of the Law Society of British Columbia)
DECISION OF THE HEARING PANEL ON FACTS AND VERDICT
Panel: Richard S. Margetts, Q.C., chair
Gerald J. Lecovin, Q.C.
William M. Trotter, Q.C.
Counsel: for the Law Society:
of the member Herman Van Ommen
Richard S. Sugden, Q.C.
The Amended Citation gives notice to Mr. Ewachniuk that a hearing will enquire into:
1. Your conduct while acting as counsel for the Plaintiffs in the action O.E.X Electromagnetic Inc. et al. v. Coopers & Lybrand et al. in intimidating or attempting to intimidate two potential witnesses from giving evidence contrary to the position of the Plaintiffs.
2. Your conduct in requesting Deputy Regional Crown Counsel, Moncrief J. Carstairs, to lay charges of fraud against two potential witnesses in the action O.E.X Electromagnetic Inc. et al. v. Coopers & Lybrand et al. who resided in the United States for the purpose of preventing them from coming to Canada to give evidence in that proceeding.
The Law Society bears the burden of proving the allegations to an appropriate standard. The standard of proof is high; higher than balance of probabilities, but not so high as the reasonable doubt standard of criminal law. It has been said that the evidence must be clear and convincing before a panel will find against a member in a proceeding whose effect may be to deprive a member of his or her right to practice.
Monte Simons, Ford Scott, and Mr. Williams (hereinafter referred to as "the Canadians") were three promoters in Vancouver. They learned of a new audio speaker being produced in Fort Smith, Texas. They went down to Texas to view the production facilities and concluded that the project was a viable one. They entered into a franchising agreement with the company, O.E.X. Ltd. The plan was that the Canadians would float a public company on the Vancouver Stock Exchange ("V.S.E.") and that when this had been done the two companies would merge. Pursuant to stock exchange requirements, it was necessary for the promoters to undertake an independent audit of the American company before there could be a public offering and trading on the exchange. The Canadians retained Coopers & Lybrand, an accounting firm, to do the study. The Canadians maintained contact with the American principals, and sent down funds in accordance with the licencing agreement.
Coopers & Lybrand submitted a positive report. As result of which the Canadian company was listed on the Vancouver Stock Exchange on August 19, 1987. On or about August 31, 1987, the principals of the American company flew up to Vancouver and received a cheque for $1.7 million, being the majority of the proceeds received by the Canadians as a result of stock they had marketed in the Canadian company.
Within months, trading in the shares of the Canadian company was halted as a result of revelations that documents produced by the American company and statements made by the company's principals to the Coopers & Lybrand investigator, were false; that the company had nowhere near the sales it claimed, the distributors to market the product, nor the backlog of orders it claimed.
These revelations came mainly from two people; Mr. Phillips, who was the chief operating officer of the American company and who held significant shares in it and Mr. Perceful, an electrician who owned fewer shares, and who in addition to his other duties gave some tours of the plant, with a view to encouraging local people to invest. They gave evidence of devices used to deceive the Coopers & Lybrand representative when he visited the plant. Phillips was one of the signatories of a stub financial statement, given to Coopers & Lybrand which contained many false and inflated figures. Phillips and Perceful had been aware of the subterfuge and while they said they disapproved, they did not inform Coopers & Lybrand nor any of the investors of the fraud being perpetrated. However, eventually it became too much for them and in or about August, 1987 they and others resigned from the company and "blew the whistle". A succession of lawsuits followed. A bankruptcy action and criminal proceedings were taken in Texas. A V.S.E. investigation culminated in the Canadians being prohibited from dealing on the Stock Exchange for 12 years.
The Canadians commenced an action in British Columbia against Coopers & Lybrand, alleging that as a result of the latter's negligence in preparing the report, they had suffered significant damages. That trial was bifurcated, dealing first with the question of liability and second with the question of damages. The member was retained by the Canadians as their counsel. The trial was heard by Mr. Justice MacKenzie, who held at the end of the first trial that Coopers & Lybrand had been negligent.
On the question of damages, the Canadians maintained that they had no inkling of the sorry state of affairs of the American company until well after the summer of 1987, by which time they had sent down the large payment of $1.7 million. Messrs. Phillips and Perceful filed affidavits contradicting this, referring to conversations that they had had with the Canadians at various times, warning them of problems that the company was having and that the production figures were not as claimed. They deposed that on August 21, 1987, prior to the Canadians sending the Americans the $1.7 million, they had spoken to the Canadians by telephone, informing them of the mass resignations of key members of the American company, warning them that the company would not be able to continue on without these people and warning specifically that the monies which the Canadians were about to send, should not be paid over to the Americans. The Canadians denied that such a conversation took place. Perceful and Phillips produced diaries. Perceful's diary referred to the specifics of that conversation. It is uncontroverted that if the evidence of Phillips and Perceful was believed by the judge, the Canadians' claim for damages would be seriously compromised.
It was planned that Perceful and Phillips would come to Vancouver and give vive voce evidence on behalf of Coopers & Lybrand. The gist of their evidence was already known to the member by reason of affidavits previously sworn by the witnesses. Moreover, the member had been sent copies of portions of Perceful's diaries.
The member had retained for his client, the services of Sherrian Krill, a paralegal working in Fort Smith. Perceful was known to her. On August 15, 1991, the member sent a letter to Sherrian Krill in which he said,
I would prefer that this letter be kept confidential, in that the writer with my Canadian clients have had discussions with the RCMP (Royal Canadian Mounted Police) Officer in charge of Commercial Crimes as well as a meeting with the head Prosecutor of Commercial Crimes for the Province of British Columbia.
Ms. Krill phoned Mr. Perceful, told him of the contents of the letter and delivered to him a copy of the letter. She later sent a copy to Mr. Phillips.
On August 23, 1991 the member wrote to Mr. Phillips advising him;
if and when you ever appear in Vancouver to give evidence, I require in advance of your giving evidence, all your diaries for the years 1985 until the present.
He wrote to Mr. Perceful in a letter of the same date, stating;
If and when you ever appear in Vancouver to give evidence, I require, in advance of your giving evidence, all your diaries for the year prior to your involvement with Mr. Gary Cooper, Mr. John Phillips and OEX Inc. Arkansas until present.
In both cases he threatened that if the documents were not produced, he would ask the court to assess costs against the witnesses personally.
Following thereon, the member, and some of the Canadians, went down to Fort Smith to confer with Ms. Krill, to meet with the local criminal prosecutor with a view to having charges laid against Messrs. Phillips and Perceful, obtain affidavits, obtain the diaries of Mr. Perceful and to interview Mr. Perceful.
The member telephoned Mr. Perceful who did not wish to meet with him without his own lawyer present. Notwithstanding, Mr. Ewachniuk, Ms. Krill and the Canadians visited Mr. Perceful, who said that at that meeting the member warned him that a Canadian Court would compel him to speak with Mr. Ewachniuk, regardless of his wish to speak to the member only in the presence of his own lawyer. Mr. Perceful went on to claim that the member advised him that if Mr. Ewachniuk had to return to Canada to get such an order, costs might be imposed upon Mr. Perceful. When Mr. Perceful informed him that he was suffering a nervous breakdown as a result of the stress surrounding the collapse of O.E.X. in Arkansas, the member replied, "You haven't been through nothing yet".
The trial of the damages portion of the O.E.X. action against Coopers & Lybrand commenced on September 3, 1991 in Vancouver. Phillips and Perceful refused to come to Canada to testify on the basis of threats from the member, conveyed in part through Sherrian Krill. They signed affidavits setting this out, appending the correspondence which they had received from the member, but stating that they would be willing to give evidence in the United States. Counsel for Coopers & Lybrand put this material before Mr. Justice MacKenzie in support of an application that the Court travel to the United States and take the evidence of Phillips and Perceful in that jurisdiction. The trial judge ultimately adopted this unusual procedure.
Ms. Krill testified in Vancouver on September 18 and October 9, 1991 in the course of which she swore that her instructions from Mr. Ewachniuk were to keep the information about a possible arrest of Phillips and Perceful in Canada confidential. She said she passed the threats on to the two witnesses out of concern for their wellbeing, on her own initiative and contrary to instructions.
Mr. Justice MacKenzie ultimately handed down his decision in the damages portion of the trial. He found against the Plaintiffs. As part of his Judgment, he made an order against the member for costs incurred as a result of having to go down to the United States to take the evidence of Phillips and Perceful. In so doing he found that the member had intended that his letter of August 15, 1991 be shown by Ms. Krill to Phillips and Perceful. He specifically disbelieved Krill's evidence that she had been told by the member to keep confidential the steps to have Phillips and Perceful arrested in Canada. He found also that the member did not wish those two witnesses to give evidence against his client as their evidence would be (and as it turned out, was) damaging to his clients. He found that the member intended by these and other means to prevent the witnesses from coming up to Canada to give their evidence. It is the member's actions in so doing, that form the basis of this Citation.
B. EVIDENCE OF CARSTAIRS
Mr. Carstairs gave evidence that in 1991, he was Deputy Regional Crown Counsel in charge of commercial crime prosecutions in B.C. He testified that he met with Mr. Ewachniuk and Mr. Scott in or about the last week in June, 1991.
The meeting lasted between 45 minutes and an hour. Mr. Ewachniuk mentioned that Mr. Scott had been the subject of a hearing before the Securities Commission and had been suspended from trading for 12 to 15 years. He mentioned that he was involved in a case involving Mr. Scott and that there were two witnesses from St. Louis, Missouri whom he thought were going to give evidence for the defence. He then said "I'd like these witnesses charged". Mr. Carstairs said "Well with what?" Mr. Ewachniuk said "Well, they're crooks". Mr. Carstairs said "Why?" and Mr. Ewachniuk said "Well they're crooks" and further said "We or I don't want them to come to Canada". He said "If they're charged they'd be less inclined or wouldn't come to Canada".
Mr. Carstairs said that he couldn't and wouldn't do that. He suggested that if Mr. Ewachniuk wanted somebody charged be should make a complaint to the authorities in the United States or go to the RCMP Commercial Crime Section and make a complaint. He then explained to Mr. Ewachniuk the process. Mr. Ewachniuk said "But we don't have time, not enough time for that". Mr. Carstairs recalled that Mr. Scott did not participate in the conversation. In his cross-examination, Mr. Carstairs acknowledged that he had not made notes of the conversation and in effect was reconstructing the conversation. He did not remember Mr. Ewachniuk's words verbatim. However, Mr. Carstairs stated that he was uncomfortable about the conversation and upon returning to his office, he spoke to his supervisor with as to whether the conversation ought to be reported to the Law Society. His discomfort was due to the fact that he believed he was being asked by the member to consider laying charges against two people for what he considered to be an improper motive, i.e. to keep these people from giving evidence at a trial in Canada. It was decided not to pursue the matter with the Law Society.
Mr. Ewachniuk's evidence as to the meeting was to the effect that they had met with Mr. Carstairs with the intention that he should explain to Mr. Scott how to lay charges in Canada. They had lunch at the Spanish Grill and his Visa statement confirmed that this took place on August 15, 1991. He confirmed Mr. Carstairs' evidence about reference being made to Mr. Scott's wife. He said that Mr. Scott wanted to lay charges against the witnesses "in the event they ever came here". He denied saying anything to the effect that the purpose of charging them would be to dissuade them from coming to Canada.
It is appropriate to consider Mr. Ewachniuk's evidence before this Panel as to the import of the evidence it was anticipated that Phillips and Perceful might give at trial. Mr. Ewachniuk claimed at the outset of his examination in chief that he wasn't very concerned about any evidence these witnesses would give if they came to Canada and therefore he had no reason to try to intimidate them or dissuade them from coming to give evidence. However, as the evidence of Mr. Ewachniuk unfolded, it became apparent that in fact he appreciated the seriousness of their evidence relative to the overall ability of his clients to succeed at trial. His affidavit of February 1992 (Exhibit 19) was put to him wherein at one point he deposed "on August 19, I was growing increasingly concerned about my inability to interview Mr. Perceful in advance of the trial. I knew he would be a crucial witness." In another paragraph he said "by August 23, 1991, 1 found myself in a difficult position with regard to the evidence of both Perceful and Phillips. Their evidence was crucial, yet I was unable to interview these gentlemen." As the cross-examination continued Mr. Ewachniuk took the position that he was confident that he could neutralize their evidence but agreed that it was crucial.
Mr. Scott's evidence as to the meeting was that he had asked the member if the witnesses came up to Canada to appear at trial, a citizen could lay a charge and have them arrested. The member said he didn't know and suggested that he could meet with a fellow that he knew and that he would try to make arrangements to do this. He attended the meeting at the Spanish Grill. He confirmed that Mr. Carstairs said that he couldn't lay a charge and that they should talk to the RCMP. He said that he felt the witnesses were crooks and wanted them put in jail.
The member does not claim that Mr. Carstairs was an untruthful witness, but rather given the time lapse and his error as to the date when the meeting took place, the witness was at best reconstructing what was said, and that his evidence should not be accepted. The Panel, it is argued, should prefer the evidence of the member.
The Panel does not agree. People are notorious in forgetting dates. In this case, the fact that the meeting took place in August rather than sometime in June, is not significant. Mr. Carstairs' evidence of other details of the meeting, was not impugned. He recalled where the meeting had been held, Mr. Scott's name and the fact that Mr. Scott said nothing. He recalled other parts of the conversation, not dealing with the matter at hand, which parts were confirmed by the member. The Panel places significant weight on the fact that Mr. Carstairs returned to his office, sufficiently concerned over what had transpired over luncheon, to raise his concerns with his superior. Conversations of that ilk are not readily forgotten by members of the legal profession.
The Panel is satisfied from other evidence, including that of Mr. Ewachniuk in the Affidavit sworn by him in February 1992, that the evidence of the two witnesses was crucial. He described one of them as being a key defense witness. If one accepts, as did Mr. Justice McKenzie, that the letter dated August 15, 1991 written by the member to Sherrian D. Krill (whose circumstances and evidence will be addressed a little later in these reasons) was meant to be shown to the witnesses, one can only be drawn to the inescapable conclusion that the member did not want these witnesses to come up to Canada and give evidence against his clients. All this supports Mr. Carstairs' evidence that the member told him he wanted the witnesses charged in Canada, so as to deter them from coming up here to give evidence.
From all this evidence the panel finds, assisted by the Reasons for Judgment of the Court of Appeal in A. Ted Ewachniuk v. Coopers and Lybrand wherein the Court stated that "it was evident to all concerned that their evidence, if believed, would be extremely damaging to the Plaintiffs' case, ..." that the evidence of the witnesses was crucial.
We are satisfied that the member was aware of this. For the reasons given, we prefer the evidence of Mr. Carstairs to that of the member and, in so far as it was applicable, we prefer the evidence of Mr. Carstairs to that of Mr. Scott, and find that the member has professionally misconducted himself.
C. EVIDENCE OF PHILLIPS, PERCEFUL & KRILL
As has been mentioned, contrary to the sworn evidence of Krill, Mr. Justice MacKenzie found that the member instructed her to pass threatening information on to Phillips and Perceful. She was called and gave evidence before this panel in which she recanted that trial evidence. Before us she in effect swore to the truth of the conclusion reached by Mr. Justice MacKenzie; that the member had indeed told her to use the information about criminal arrest in Canada to deter the witnesses from attending the trial.
In her testimony before this panel in February 1999 Krill testified that the member in August 1991 arranged in telephone calls to supply her with correspondence that she was to use as part of a presentation to Phillips and Perceful to induce them to refuse to come to Canada for the trial. At first a letter was drafted to specifically require that she not reveal its contents, as a screen to protect the member. She objected that she would not act against specific written instructions requiring confidentiality but that she would reveal the contents if so orally instructed so long as the letter was worded to simply "prefer" confidentiality. The August 15, 1991 letter in its final form uses that expression. The member said that he was the only person who could complain if Krill revealed the "confidential" information and he would not complain. Krill did as the member told her. She told both Phillips and Perceful that they faced arrest if they attended to give evidence at the trial and passed on the correspondence, with the result desired by the member.
Concerning the perjured evidence before Mr. Justice MacKenzie, Krill testified before this panel that on October 9, 1991 she commenced her evidence before the noon break. At that time the member and his clients repaired to Bosman's Cafe for lunch as was their custom during the trial. There Krill spoke of her reluctance to lie under oath about her instructions but the member told her she had nothing to worry about. If she told the truth Mr. Ewachniuk would be financially devastated and may "lose his licence to practice". The clients joined in the discussion. One said he and his wife, a prominent person, would be socially embarrassed and another said his wife would leave him if Krill revealed the truth. One would be prevented from ever again trading on the V.S.E. In her evidence that afternoon she lied under oath; when asked in cross-examination if the member instructed her to show the August 15, 1991 letter to the witnesses she said he had not.
Thus the panel had for its consideration two opposite versions of the member's instructions, each given under oath by the witness Krill. The panel concludes it cannot rely upon either version if uncorroborated. As is discussed below in more detail we conclude based upon the whole of the evidence, and especially that of Mr. Carstairs and the wording of the August 15, 1991 correspondence itself that the member did intend that his communications be used to intimidate Phillips and Perceful from giving evidence. We treat the evidence of KriIl before this panel as being of only some confirmatory value in that conclusion.
We turn now to the evidence of the two witnesses whom it is alleged were the object of the member's improper conduct; John Phillips and A.C. Perceful. The testimony of both witnesses was taken in this proceeding under commission in the U.S.A. in June 1999. Transcripts and video tapes of those examinations were admitted in evidence. As has been mentioned both men had previously testified in the 1991 B.C. Supreme Court trial before McKenzie, J., then under commission in the U.S.A. In addition both had provided affidavits in the O.E.X. proceedings, which affidavits were introduced by agreement of counsel as evidence in this proceeding, though their admissibility was disputed during the December 1996 hearing.
John Phillips had been associated with the Arkansas company, O.E.X. Inc., during the years 1985 to 1987. In the Coopers & Lybrand litigation a solicitor, Bob Amsterdam of Toronto, had interviewed Mr. Phillips and enlisted his cooperation.
The letter from Mr. Ewachniuk to Ms. Krill of August 15, 1991 was passed onto Mr. Phillips along with Ms. Krill's "advice". It had an effect upon Mr. Phillips' willingness to attend the trial. Mr. Phillips testified under commission in this proceeding as follows:
"Well, I was prepared to go to Vancouver and testify, and I was given a phone call or a phone call came to me from a lady by the name of Sharon Krill who I really didn't know who she was at first. But she was explaining to me the dangers of what would happen if I went to Vancouver to testify. One of the first things she'd stated was that as soon as I got off the plane, we would be arrested. They would have us arrested for any reason whatsoever. And because we were on Canadian soil, we'd be thrown in jail, and they would financially, you know, wipe us out. Once we got in jail, you know, they'd just totally have our (sic) way with us. And my impression of her was she was somebody that was warning me at the time hey, you better not go to Vancouver or you are going to suffer all these consequences. As you know, it was — to me, it was a direct threat, especially if you go to jail they're going to have their way with you. At that point, after that conversation with Sharon Krill, I decided there was no way I was going to go to Vancouver and testify. It was, to me, a direct threat, if I went there, the things that I, you know, could suffer. I was not going to go."
In his affidavit sworn September 17, 1991 (Exhibit 11, tab 4) Mr. Phillips deposed that in mid-August, Krill had telephoned him to say that "attorneys for the Plaintiffs" had paid her to approach the prosecuting attorney in Arkansas to reopen the O.E.X. Inc. investigation. She informed Phillips that steps had been taken to see that he would be arrested if he travelled to Vancouver to testify in the lawsuit. She advised him to not travel to Vancouver. Phillips testified that he had been quite prepared to travel to Vancouver for the purpose of giving evidence until he heard from Krill. Upon speaking with Krill, Phillips determined that despite his earlier intentions, he would not now travel to British Columbia. Phillips testified he felt intimidated and that he had suffered threats to his freedom, safety and financial resources and was as a result unwilling to travel to Vancouver to testify.
Mr. Phillips went on to testify that he told Bob Amsterdam he was not going to go to Vancouver. He then provided to Mr. Amsterdam the affidavit of September 17, 1991 and ultimately testified before McKenzie, J. on commission.
A.C. Perceful was Chief Electrician of O.E.X., Inc. and later assumed some duties involving potential investors. After the collapse of the company Bob Amsterdam also contacted him about the Coopers & Lybrand litigation. Mr. Perceful swore an affidavit for Mr. Amsterdam's use and was prepared to come to Canada to testify at the trial. He later refused to attend the trial because "I had a lot of threatening letters, phone calls."
Mr. Perceful testified that about the second week of July 1991, probably on July 11, 1991, Monte Simons telephoned and asked him to come for a meeting at the Holiday Inn in Fort Smith, which he refused to do. Mr. Ewachniuk then took the telephone and wanted to talk to him about some diaries. Mr. Perceful said he did not have the diaries and refused to talk to Mr. Ewachniuk unless in the presence of Mr. Amsterdam.
The next day, Mr. Perceful testified, Mr. Ewachniuk went to Mr. Perceful's office. There, in the presence of Mr. Perceful's wife and father-in-law, Mr. Ewachniuk informed him that he had spoken to Mr. Amsterdam who approved of Mr. Ewachniuk interviewing the witness and reviewing his diaries. Mr. Perceful says he knew that to be false because Mr. Amsterdam had the original diaries. He attempted to terminate the visit, pointing out the trouble he had already suffered as a result of the O.E.X. affair. Mr. Ewachniuk said that Mr. Perceful hadn't seen the worst of it, that "sections and treaties of Laws" could be used by Mr. Ewachniuk to compel cooperation and he couldn't wait to get Mr. Perceful in Canada.
Exhibit 34 to the Perceful examination is a letter dictated by Mr. Ewachniuk, also on July 12/91 to his secretary in Vancouver. She prepared and sent it to Mr. Amsterdam. It seeks his cooperation in facilitating a Rule 28 statement from Perceful and other witnesses and access to the Perceful diaries. It also warns of adverse consequences in costs should Mr. Amsterdam fail to cooperate.
Cross-examination elicited the following (pp. 23-25):
Q. The personal appearance with you, Sir, with myself and you. I'm suggesting to you that the sum total, the sum and substance was that you could be requested or ordered by a Judge in British Columbia to produce all your diaries.
A. Yes. That's basically what you said, yes.
. . . . .
Q. My question was, there was no reference to anything other than a requirement to produce the diaries.
A. I don't understand what you're -
Q. That was all there was to it.
A. Right, a request to produce the diaries.
Q. That's all that -
A. And that if I came to Canada without them you would have me come back and get everything you requested at my expense.
Mr. Perceful said there followed 2 meetings with Ms. Krill. The first meeting arose as a consequence of Ms. Krill telephoning Mr. Perceful. He attended her office after this communication. There she handed him the member's letter of Aug. 15/91 and said she had been instructed to take it to the authorities. The purpose of this was to see people prosecuted, including Messrs. Phillips and Perceful. She also showed Perceful affidavits referred to in the letter as material for the U.S. prosecutor's use. The witness was not cross examined in much detail about the conversation with Krill.
The letter of Aug. 23/91 from Mr. Ewachniuk addressed to Mr. Perceful reached its destination. The witness thought it was handed to him by Ms. Krill.
To deal with the July 11 and 12/ 91 communications, we conclude that there was no threat of criminal prosecution or arrest. The only significance of Vancouver as the trial venue is that if Perceful failed to provide his documents he would incur significant expense in travelling back to Arkansas to get them.
Mr. Ewachniuk's evidence was that in confronting Mr. Perceful he sought only what the Rules of Court entitled him to and he made no threats of sanctions other than those a chambers judge might impose upon an uncooperative witness. He was in Arkansas at considerable expense to interview witnesses. He did not wish to be put off and he points to the contents of his letter of July 12, 1991 to Mr. Amsterdam to confirm his proper intention and method.
There are thus two alternate explanations for Mr. Ewachniuk's communications with Mr. Perceful in July 12, 1991. One has counsel pursuing proper objectives, though perhaps with uncommon aggressiveness. The other paints the conduct as designed to frighten the potential witness so he will decline to give evidence at all.
Standing on their own the July communications may well have been directed at proper objectives. There are occasions when counsel has to be pressing and persistent in endeavouring to obtain evidence. A potential witness may feel intimidated into providing the desired evidence which he would have otherwise withheld. But the intention of counsel is then not to intimidate the witness from giving evidence at all; it is to encourage cooperation by a fear of the unhappy consequences that would attend a failure to provide evidence called for by the Rules of Court.
Counsel must be afforded wide latitude in pursuing a litigant's rights in that regard. A trial court may be deprived of essential evidence and the truth may not be revealed otherwise. That is so even if counsel may be heavy handed when faced with a recalcitrant witness; and such conduct must not be too finely judged or too lightly characterised as misconduct. Even accepting the Law Society's evidence including that of Mr. Perceful, had there been no communication from Mr. Ewachniuk beyond July 12/91 the panel would not find the member had acted beyond the wide limits allowed in such circumstances on these occasions.
The events of July 11 and 12/91 do not stand on their own however. They must be viewed in context including the steps the member took in relation to Ms. Krill, the letters of August 15 and 23, the evidence of Mr. Carstairs and the fact that Mr. Ewachniuk did not pursue an opportunity to obtain a later statement from Mr. Perceful. We treat the July communications as part of a continuing and developing course of conduct.
The general credibility of both Phillips and Perceful was vigorously attacked by the member.
In the lengthy cross-examination of John Phillips the member succeeded in demonstrating conduct of the witness that did Phillips no credit. He participated in activities of O.E.X., Inc. designed to deceive potential investors, and in particular the Coopers & Lybrand investigator, as to the worth of the company.
He perjured himself in relation to whether his signature appeared on two stub financial statements, the earlier of which was an important underpinning of the Coopers & Lybrand Technical Report. Mr. Phillips' evidence as to whether he had participated in a mailing to shareholders was shown to be inconsistent. The end result was a witness whose credibility, at least on issues at the trial in which he was an "interested" party, left much to be desired.
Mr. Perceful fared somewhat better but he too was shown to be complicit in questionable activities in the O.E.X., Inc. promotion.
However, the member failed to convince us that on the narrow issues for which the evidence of Phillips and Perceful is material in this proceeding we ought not to rely upon it. We are not able to conclude that the witnesses had any reason to feel they would benefit from showing the member in a bad light. It is beyond dispute that the two men received the letters and information from Ms. Krill and it is understandable that any person who did would be very concerned about attending a trial in Canada. Their evidence in that regard was crystallized in their affidavits sworn in September 1991, within a very short time of the conduct complained of. Even the significant lapse of time between the events of the summer of 1991 and the hearing in this case has done nothing to weaken the force of the testimony since it was sworn to and tested by cross-examination that same autumn and has not varied in any significant way. Similarly, on the narrow issue involving her communication to Phillips and Perceful Ms. Krill has been consistent. She communicated threats and the correspondence of Aug. 15 and 23 to the witnesses. It is only in relation to the nature of instructions from the member that her evidence exhibits the extraordinary contradiction mentioned above.
Were Phillips and Perceful actually intimidated from testifying in Canada? The question is irrelevant on the issue of attempted intimidation. It will also be irrelevant if the gravamen of the alleged misconduct by intimidating witnesses is that the lawyer so conducted himself that a reasonable person in the position of the witness would have felt intimidated, the objective test. This is the test appropriate to the facts of this case as suggested in obiter dicta in one of the appeals in this case reported as Ewachniuk v. Law Society (British Columbia) (1998) 46 B.C.L.R. (3d) 203 and which we adopt. They said:
... the Panel may not be correct in assuming that it is necessary to determine whether the American witnesses "were indeed intimidated". If the test for determining whether a member is guilty of professional misconduct is an objective one, the question would be whether a reasonable person in the position of the witness would have been intimidated by the member's conduct, not whether the conduct of the member actually intimidated the witness. Assuming an objective test is applicable, I think the Panel may have attached too much importance to the opportunity for cross-examination of the American witnesses on whether they "were indeed intimidated". My comments in that regard are, of course, obiter.
Per Rowles, J.A. @ 209-210
I am in agreement with [Rowles, J.A.'s] observation that the question of whether in fact the witnesses in question were intimidated by the appellant has little to do with the subject-matter of the Citation.
Per Goldie, J. A. @ 221
We suspect there will be cases in which it will be appropriate to consider counsel's conduct in relation to the circumstances of a particular witness and its subjective effect upon that witness in determining whether counsel may have engaged in misconduct. This is not one of those cases.
If it is necessary to consider the subjective effect on Phillips and Perceful, we have no hesitation in finding that the witnesses were actually intimidated from attending to testify at the trial in Canada. They were prepared to attend in Canada to testify prior to receiving Mr. Ewachniuk's letters of August 1991; they promptly notified Mr. Amsterdam of their contrary decision following the impugned communications; they remained willing to testify and did testify in their own country.
While the member argues that it was the threat of trouble and expense to be borne by the witnesses, especially Perceful, connected with the proper disclosure of documents that brought about the decision to remain outside Canada, we are not persuaded that is an adequate explanation for their refusal.
It is not necessary for us to rely on the uncorroborated oral testimony of the two men to have confidence in our conclusions on this question. But we find we are able to rely upon their evidence as to receipt of the communications and its effect upon them. That they tried to minimize their own culpability in the OEX., Inc. deceptions and, in the case of Phillips, committed a perjury, causes us little concern on the narrow questions of fact falling to be considered in this proceeding. They need to satisfy us that the letters reached them and we are so satisfied. In addition, depending upon one's view of the objective test, their evidence is needed to satisfy us that the refusal to attend trial in Vancouver was a result of those letters and the warnings conveyed by Ms. Krill. We are so satisfied.
Mackenzie J., had this to say in his Reasons for Judgment following the Coopers & Lybrand trial which we respectfully find apply to the evidence before the Panel:
"Neither Phillips nor Perceful is without blemish. The largest blemish on Phillips' integrity is his signature on the Stub Statements and his evidence about it. He first denied the authenticity of the signatures suggesting they were another's work but when he was confronted in St. Louis with a tape of his evidence given before another hearing he admitted his signature. In the course of a long and rigorous cross-examination he admitted to other transgressions in which he shared deceptive processes. He repented these and admitted that he was not proud of his actions."
The trial judge went on to conclude that he was able to rely upon the evidence of Perceful and Phillips on certain important issues of fact.
We are strengthened in our conclusions by the letter of Aug. 15/91 which itself speaks volumes as to the intention of its author. It is redolent with duplicity. It begins by instructing Ms. Krill as his Arkansas agent, to work toward the laying of criminal charges. There is nothing unusual about that if the Canadians felt angry and deceived as they allege. There is nothing worrisome about a requirement of the author that Ms. Krill keep the letter confidential, if the request related to the hoped for U.S. prosecution. That could be justified as avoiding an alerting of the intended defendants who might otherwise flee or erect a defensive deception.
The incongruous passage is the fourth paragraph. Firstly, it says
I would prefer that this letter be kept confidential, ...
A lawyer is not likely to express a simple preference on such a matter. The explanation given by Krill, that she would not act against a specific requirement of confidentiality and so demanded this wording, is likely true.
The letter then outlines steps that had been taken to alert prosecutors in Canada, all of which is to be kept confidential. If the member desired that the witnesses not be aware of his alerting of Canadian prosecutors he need only have refrained from mentioning the topic.
Ms. Krill had no need of that information to do her task. She was not asked to tell the U.S. District Attorney about the involvement of Canadian prosecutors. Why would the member mention the Canadian discussions if he did not want them brought to anyone's attention in Arkansas? Indeed, if the American prosecutor learned of the involvement of Canadian prosecutors he might be more likely to decline to duplicate that investigation, which would be contrary to Mr. Ewachniuk's stated wish.
It is not believable that the member would, in all the circumstances, mention Canadian prosecutors and also not want Krill to reveal their involvement to those in Arkansas. We are driven to the conclusion that the evidence of Ms. Krill before us is the correct explanation. The member did indeed instruct her to convey the letter of August 15/91 to Phillips and Perceful and to intimidate the two men from attending in Canada. McKenzie, J. was correct in disbelieving her protestations to the contrary at the trial. She was correct in recanting that perjury before the Panel.
We find as a fact that the member did attempt to intimidate the two potential witnesses from giving evidence at the trial.
We also find that the two potential witnesses refused to attend the trial as a result of the conduct of the member; that is to say the member did in fact intimidate them from giving evidence.
In his submission on behalf of the member Mr. Sugden takes the position that the time elapsed following issuance of the Citation in November 1995 amounts to unreasonable delay. In particular, the time expended by the Law Society in processes designed to have the hearing convene in the United States and the later processes to obtain Orders of American courts in two states and conduct deposition examinations of those two witnesses should be so characterized and entitle the member to a dismissal of the Citation. Mr. Sugden does not allege that the Law Society was guilty of any delay in prosecuting or participating in the appeals but rather that the time lapse while the appeals were pending amounts to unreasonable delay. An analysis of the course of the discipline proceeding is called for.
Events at the O.E.X. trial in September 1991 came to the attention of the Law Society and resulted in a letter dated October 10, 1991 inviting the member to provide an explanation.
Mr. Ewachniuk wrote promptly to say that he was very busy and expected to respond in a few weeks. The Law Society pressed for a response and was supplied with some affidavit material in February 1992 by counsel on behalf of the member. In March 1992 the Law Society staff lawyer indicated she wished to proceed with her assessment and invited any further response from the member that might be desired. That led to a request from the member that the investigation be held in abeyance pending the outcome of "the litigation" and his undertaking to not make a defence based on any delay in the interval.
It is common ground that the "litigation" ended in June 1995 with the release of Reasons for Judgment of the Court of Appeal. The Law Society investigation then proceeded and the Citation was issued in November 1995. The member quite properly does not complain of any delay prior to the issuance of the Citation.
In what follows reference will be made frequently to the setting and adjourning of hearing dates. The process of arriving at dates involved a conference, usually by telephone, attended by all counsel. Dates to be selected had to be available to counsel for the Law Society, counsel for the member, the member himself and witnesses.
Also inherent in the process is accommodating the schedules of three panel members, all of whom are practicing barristers with other commitments. It may be worth noting that it is the deliberate policy of the Legal Profession Act that matters of professional conduct be decided by practicing members of the bar and the legislature must be taken to be aware that there will be time exigencies imposed by that fact. They are not the same as those which apply in a professional judiciary whose sole occupation is the hearing and deciding of applications and trials before the court.
From a review of the record, it appears that the time elapsing between the fixing of a hearing date and the date fixed was about three months on average with variations between 2 and 5 months. We take that 3 month period as inherent in any rescheduling request from either side.
Law Relating to Delay
We have been referred to a great many cases on the delay issue and accept that the following principles ought to govern this case.
The protection of certain rights afforded by the Charter operates in favour of a member against whom a Citation is issued under the Legal Profession Act.
A panel such as ours is required to proceed in accordance with the requirements of fundamental justice and natural justice. These include the right to a fair hearing and the avoidance of undue delay. The more important the interest the more exacting the standard of fairness that applies.
The ability of a member of the Law Society to earn his or her livelihood and practice a profession is an interest calling for a very high standard of fairness in process. Disciplinary proceedings can have a devastating effect on a member's reputation, often the single most valuable asset which a professional can possess.
Prejudice suffered by the member arising from delay will call for enhanced vigilance that the delay not be unreasonable. Unreasonable delay can in extreme cases amount to an almost irrebutable presumption of prejudice and of denial of fundamental justice.
Application to this case
The Supreme Court of Canada in R. vs. Morin, (1992) 1 S.C.R. 771 lists the factors which an inquiry as to undue delay might include. We will deal with each in turn.
1. the length of the delay
The inquiry begins by asking if the elapsed time seems within the normal expected range. If so that ends the matter. In this case the time between the Citation of November 1995 and the conclusion of the hearing in December 1999 was 49 months. The panel regards that as a long lapse of time, sufficient to raise the question whether there has been undue delay amounting to a denial of the rights of the member.
2. waiver of time periods
It is common ground that any right to complain of delay prior to issuance of the Citation has been formally waived. After issuance of the Citation Mr. Ewachniuk made formal waivers of any right to complain of delay for time periods totalling approximately 6 months. His requests for other delays and his unavailability for hearing dates are discussed under later headings.
3. the reasons for the delay,
(a) inherent time requirement of the case
The Law Society's witnesses were subject to intimidation by the member which led to their refusing to attend before the panel in British Columbia. There was no judicial authority in existence to guide the Law Society in determining the acceptable manner of obtaining evidence out of the jurisdiction for use in a hearing within British Columbia. Therefore, on December 12, 1996 the Law Society sought a preliminary ruling of the panel as to what use might be made of proceedings in the Supreme Court trial including affidavits sworn by the two American witnesses in 1991 and the transcript of the oral evidence of the two American witnesses which included cross-examination by Mr. Ewachniuk.
The member argued that the evidence of Phillips and Perceful was of such central significance that the testimony of those persons should be received only if subject to cross-examination before the panel. The panel accepted this assertion and declined to receive the 1991 affidavits. As was said in the panel's decision "the position taken by the member is that only oral evidence of the American witnesses should be received and then only if an opportunity for cross-examination is offered. The member says that, where, as here, credibility is an important issue, admitting even the Supreme Court transcripts, which include cross-examination by the member, deprives the panel of the opportunity to observe the demeanour of each witness and detect the subtle occurrences so central to the formation of an impression of credibility." Accordingly, the panel decided to convene in the U.S.A. to receive the evidence orally.
On April 21, 1997, approximately nine weeks after the decision of the panel, the member issued a Petition in the Supreme Court of British Columbia seeking to quash the panel's decision. The Petition was heard on June 5, 1997. Mr. Justice Brenner's Reasons confirming the decision of the hearing panel were filed July 3, 1997. The Respondent appealed to the Court of Appeal for British Columbia on July 10, 1997.
In September 1997 Mr. Ewachniuk successfully applied in the Court of Appeal for a stay of the Law Society hearing in Missouri. The Appeal was heard December 19, 1997. In the interval the Law Society set dates in January 1998 for the St. Louis hearing resulting in another order of the Court of Appeal staying that hearing. Reasons for Judgment quashing the hearing panel's decision to convene in St. Louis were released on February 18, 1998. Fourteen months had intervened.
On April 6, 1998 a pre-hearing conference was set. The conference convened on May 14, 1998 when the panel heard an application by the Law Society that it receive new affidavits of Phillips and Perceful, as opposed to the ones sworn in 1991 for the O.E.X. trial, on certain conditions as to opportunity for cross-examination by the member.
On June 3, 1998 at a further pre-hearing conference the panel was asked to set a date for the hearing to reconvene in July or August. For the first time the conference included Peter Butler, Q.C. who indicated he had joined Mr. Sugden in the defence of the member. He said he was unavailable until September 1998. The panel fixed September 14 through 18 to continue the hearing.
On June 5, 1998 Mr. Butler wrote that Mr. Ewachniuk himself would not be available on the September dates and requested an adjournment. After further communication and a pre-hearing conference the hearing was set to reconvene on December 7, 1998 when both Mr. Ewachniuk and Mr. Butler would be available along with Mr. Sugden.
Before that date Mr. Sugden requested an adjournment on the grounds that Peter Butler, Q.C. was ill and so the hearing was further adjourned to February 1, 1999.
On February 1, Mr. Butler was not available and he was not mentioned further. Mr. Sugden proceeded with the defence and continued alone thereafter. At the hearing on February 1 and 4, 1999 the panel received the oral evidence of three witnesses, and scheduled the continuation of the hearing for June 28, 1999.
On May 21, 1999, approximately a month before the scheduled continuation, the member petitioned the B.C. Supreme Court to prohibit the Law Society from proceeding with deposition orders for Phillips and Perceful which had been obtained in the courts of Arkansas and Missouri. Mr. Sugden, acting for a Mr. Penty, also a member of the Law Society, in a separate matter unrelated to this one, had filed a petition seeking to prohibit similar depositions. Mr. Sugden was by that time taking an appeal to the Court of Appeal for British Columbia in the Penty case. He and the Law Society agreed that the outcome of the Penty appeal should be determinative of the Law Society's rights with respect to depositions in Mr. Ewachniuk's case. Mr. Sugden requested an adjournment of the June 28 hearing and it was rescheduled for September 13, 1999. It was further adjourned at the request of Mr. Ewachniuk pending the decision of the Court of Appeal in Penty. Mr. Ewachniuk undertook to not complain of the delay for the resulting period of adjournment.
On November 1, 1999 the Court of Appeal released its Reasons dismissing Mr. Sugden's appeal in Penty, which by agreement permitted the depositions of Phillips and Perceful to be used in the hearing before this panel.
The hearing was concluded in the period December 13 to 17, 1999. Written argument was then submitted, supplemented by brief oral argument on March 24, 2000.
From this summary it can be seen that there were two substantial blocks of time taken with Supreme Court and Court of Appeal processes. The first, to do with convening in St. Louis, took fourteen months. The second to do with receipt of deposition evidence took about five and one half months. The member takes the view that the first of those is not an inherent time requirement of the case. He desires to treat it as fourteen months of unreasonable delay by the Law Society.
The member makes no specific representation with respect to his unsuccessful attempt to restrain the use of deposition evidence that postponed the hearing from June to December 1999 but does include the lapse of time caused thereby in the overall period of 49 months he cites as amounting to unreasonable delay.
Those periods should be labelled time requirements inherent in a case, such as this one, where the member has prevented the panel from receiving oral evidence by his intimidation of witnesses. Alternatively, they may be considered as actions of one or other of the parties and we will discuss them further in relation to those factors.
(b) actions of the accused (the member)
As has been said, it is the actions of Mr. Ewachniuk in intimidating the witnesses Phillips and Perceful from attending before the panel in Vancouver that resulted in the time taken with the two procedural petitions by the member and two appeals by him. That fact cannot be used by the Law Society to avoid the necessity of proceeding with proper diligence and bearing the consequences of any periods of time in which they were not so proceeding. On the other hand, time taken in pre-hearing applications initiated by the member to attack the alternative methods to obtain the evidence he obstructed ought not to count against the Law Society as delay.
In Morin @793 Sopinka, J. considered the effect of pre-trial actions of the accused by way of court process.
In this section [Actions of the Accused] I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.
The Supreme Court proceeding and appeal taken by Mr. Ewachniuk in 1999, seeking to prevent the use of the depositions of Phillips and Perceful, is clearly an action of the member within the category discussed in Morin and the time taken is not chargeable against the Law Society as delay.
What is to be made of the fourteen months required to deal with the Order of January 1997 that the panel convene in the U.S.A. found on appeal to be unlawful?
We find that the application to the panel, the Order to convene in the U.S.A. and the subsequent Supreme Court petition and the appeal are a consequence of the actions of the member in intimidating the witnesses. Discipline counsel was under a duty to provide to the panel the best evidence available, as much to assure fairness of process to the member as to ensure the an appropriate decision was reached on the facts. So long as the course attempted, in this case convening a hearing in the U.S.A., was not so unreasonable that no competent counsel may have adopted it, the panel ought not to treat the time taken to obtain a determination as to its validity as unreasonable delay. The Order was initiated by competent discipline counsel of considerable experience. Of the four judges who had to consider the matter, two, the Supreme Court judge at first instance and one justice in the Court of Appeal, supported the Order. It cannot be said, we conclude, that the procedure was reckless or a result of incompetence.
Accordingly, we conclude that the fourteen months are fully explained and we do not treat that period as unreasonable delay by the Law Society.
As for the six adjournments which took place, five were at the request of the member. For some of those there was a formal undertaking to not complain of delay but beside those we find much time was lost as the result of his adjournment requests. The most egregious was the delay from July or August 1998 to February 1999 for the proposed involvement of Peter Butler, Q.C.
(c) actions of the Crown (Law Society)
As has been mentioned the Law Society applied for an adjournment from June 1996 to October 1996 and by subsequent agreement to December 9, 1996, about 7 months. There is no evidence why it needed more time for an investigation that had begun in June 1995 other than that new evidence had been disclosed. That further investigation ultimately did lead to the addition of the second count to the Citation and so was, we conclude, not wasted time. However, it may be that some of that 7 months should count as delay.
If one accepts the submission of the member concerning the fourteen months taken to deal with the January 1997 decision of the panel and treats that period as delay by the Law Society, what effect should be given to it? In and of itself we do not find the passing of time long enough to be, in the specific circumstances of this case, sufficient to amount to unreasonable delay within the meaning of the authorities.
(d) limits on institutional resources
(e) other reasons for delay
There does not appear to be any evidence of these factors in this case.
4. prejudice to the accused
The approach to be taken to this factor in criminal cases, and which we take to apply by analogy in this case, is well explained in the judgment of Sopinka, J. in Morin @ 801,802.
"Section 11(b) protects the individual from impairment of the right to liberty, security of the person and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trial to a conclusion. ... the right protected by s. 11(b) is not restricted to those who demonstrate that they desire a speedy resolution of their case by asserting the right to a trial within a reasonable time. Implicit in this finding is that prejudice to the accused can be inferred from prolonged delay. ... in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined.
R. vs. Morin (supra) @ 801
This right must be interpreted in the manner which recognizes the abuse which may be invoked by some accused. The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with the desire for a timely trial is something that the court must consider. ... Nonetheless, in taking into account inaction by the accused, the Court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right. Inaction, may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of the delay".
R vs. Morin (supra) @ 802
The first enquiry is whether there is evidence of actual prejudice to Mr. Ewachniuk resulting from the time taken after issuance of the Citation in November 1995. No such actual prejudice is shown in evidence.
Significant media attention was accorded the O.E.X. trial in the early 1990's but there is no evidence of media attention directed to the discipline process which began in 1995.
The next inquiry is whether prejudice may be inferred from the fact of delay alone. It may be inferred, without specific evidence, that the member felt the weight of the Citation banging over him. However, certain actions of Mr. Ewachniuk lead to an inference that he did not feel significant prejudice. He temporized for about four months after the Law Society requested an explanation in October 1991. He then sought and obtained an agreement of the Law Society to delay its investigation until the conclusion of the litigation, which he interpreted to mean the last Reasons for Judgment in the last Appeal. These acts do not indicate a desire to dispose of the case quickly. It is not uncommon for a member to seek to have a discipline investigation delayed while court proceedings are outstanding. The Law Society often accepts such a request, reasoning that the member ought not to be required to make any statement or take any position which may be used against him or her in the other proceeding. However it is difficult to imagine a practical reason why Mr. Ewachniuk might find it could damage him in the other case once that case was in appeal. He held the investigation off until the last appeal on the last issue of costs was concluded.
Bearing in mind that there is no onus upon Mr. Ewachniuk to hurry the proceeding to a conclusion, as was said in Morin "Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider." We do not rely upon inaction by the member. However, of some force are the voluntary acts of the member which had the effect of delaying the hearing and those acts negate an inference of prejudice suffered by him. We conclude that the member was content with the pace with which things were proceeding and that therefore there was little or no prejudice occasioned by any delay.
We reach that conclusion knowing there are important differences between the Morin case and this. As has been acknowledged earlier in these reasons, the burden of a proceeding whose outcome might be so severe as to end one's professional career is of very great significance to the person involved, likely more than is experienced by one charged with a driving offence. It is also beyond a dispute that delay gains more sting and raises a greater inference of prejudice the longer it is drawn out. The delay is longer in this case than in Morin.
In all the circumstances of the case we do not find that there has been such delay as amounts to a breach of fundamental justice or natural justice or of the provisions of the Charter as would amount to a defence to the Citation or result in a loss of jurisdiction.
It therefore follows that Mr. Ewachniuk is guilty of professional misconduct in attempting to intimidate and in actually intimidating the witnesses Phillips and Perceful from giving evidence at the trial of the O.E.X. action.
We further find Mr. Ewachniuk guilty of professional misconduct in requesting Crown Counsel to lay charges against Phillips and Perceful for the purpose of preventing them from coming to Canada to give evidence in court.
Dated: the 19th day of July, 2000.
[Signatures of Gerald J. Lecovin, Q.C.
Richard S. Margetts, Q.C., Chair
and William M. Trotter, Q.C.]
* * *
 LSBC 18
THE LAW SOCIETY OF BRITISH COLUMBIA
IN THE MATTER OF: the LEGAL PROFESSION ACT, S.B.C. 1998, c. 9
- and -
a Hearing concerning
A. THEODORE EWACHNIUK,
DECISION OF THE HEARING PANEL
Hearing Date[s]: October 26, 2000
Panel: Richard S. Margetts, Q.C., Chair
Gerald J. Lecovin, Q.C.
William M. Trotter, Q.C.
Counsel: for the Law Society:
for the Respondent Herman Van Ommen
Richard S. Sugden, Q.C.
1. The Panel has found the Member guilty of professional misconduct in that he requested Crown Counsel to lay charges against two witnesses with the intention that this would intimidate them from coming to Canada to give evidence in outstanding civil proceedings, the O.E.X. action.
2. The Panel has also found the Member guilty of professional misconduct in that he attempted, and did in fact intimidate, the same witnesses with respect to their giving evidence at the trial of the O.E.X. claims.
What penalty does this misconduct call for?
The Law Society submits that the appropriate penalty is that the Member should be disbarred. The Member takes the position that a six month suspension is appropriate in the circumstances.
3. The primary purpose to be considered when imposing a penalty is the protection of the public.
4. In A. v. Law Society of British Columbia (1962) 39 W.W.R. 449 (B.C.C.A.) Davie, J.A. at p. 451 wrote:
"But I cannot accept the proposition that disbarment is merely punishment. It is more than that; it is the expulsion of a Member who by the crime of theft has shown himself unfit to be a Member of the society. Expulsion follows, as my brother Bird J. said, for the protection of the public and the honour and reputation of the profession."
5. More recently Finch J.A. in McKee v. College of Psychologists (British Columbia) (1995) B.C.L.R. (2d) 66 (B.C.C.A.) at p. 68 wrote:
"In cases of professional discipline there is an aspect of punishment to any penalty which may be imposed and in some ways the proceedings resemble sentencing in a criminal case. However, where the legislature has entrusted the disciplinary process to a self governing professional body, the legislative purpose is regulation of the profession in the public interest. The emphasis must clearly be upon the protection of the public interest, and to that end, an assessment of the degree of risk, if any, in permitting a petitioner to hold himself out as legally authorized to practice his profession. The steps necessary to protect the public and the risk that an individual may represent if permitted to practice, are matters that the professional peers are better able to assess than the person untrained in the particular professional art or science."
6. Section 3 of the Legal Profession Act provides:
"It is the object and duty of the Society
a) to uphold and protect the public interest and the administration of justice by ... :
(ii) ensuring the independence, integrity and honour of its members."
Counsel for the Law Society drew the Panel’s attention to the American Bar Association’s Standards for Imposing Lawyer Sanctions. Rule 1.1 stresses that the purpose of lawyer discipline proceedings is to protect the public from lawyers who have not discharged, will not discharge, or are unlikely properly to discharge their professional duties to clients, the public, the legal system, and the legal profession.
7. The factors to consider in imposing penalty are many. The Panel considers those set out in the decision of a panel of the Benchers in Re Ogilvie, reported at LSBC  17, and dated April 8, 1999. They are as follows:
a) the nature and gravity of the conduct proven;
b) the age and experience of the respondent;
c) the previous character of the respondent, including details of prior discipline;
d) the impact upon the victim;
e) the advantage gained, or to be gained, by the respondent;
f) the number of times the offending conduct occurred;
g) whether the respondent has acknowledged the misconduct and taken steps to disclose and redress the wrong and the presence or absence of other mitigating circumstances;
h) the possibility of remediating or rehabilitating the respondent;
i) the impact on the respondent of criminal or other sanctions or penalties;
j) the need for specific and general deterrence;
k) the need to ensure the public’s confidence in the integrity of the profession; and
l) the range of penalties imposed in similar cases.
We propose to address the more pertinent considerations.
Nature and Gravity of the Conduct Proven
8. Acting in a fashion that amounts to the suppression of evidence, or otherwise attempting to suppress evidence constitutes a serious interference in the administration of justice. It is wrongful conduct that strikes at the heart of the barrister’s duty to the court, and his responsibility to the administration of justice.
9. In the Canons of Legal Ethics a lawyer is described as:
"A minister of justice, an officer of the courts, a client’s advocate, and a member of an ancient honourable and learned profession."
10. The first duty of a lawyer as set out in the Canon of Legal Ethics is:
"A lawyer owes a duty to the state, to maintain its integrity and its laws. A lawyer should not aid, counsel, or assist any person to act in any way contrary to the law."
11. A duty that a lawyer owes to himself or herself is to:
"maintain the high traditions of the profession by steadfastly adhering to the time-honoured virtues of probity, integrity, honesty and dignity."
12. Mr. Ewachniuk has failed to live up to all of those.
13. The American Bar Association Standards for Professional Discipline, provides in Rule 5.11:
"Disbarrment is generally appropriate when: (a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice."
14. In the Commentary, to the Standards it is stated:
"A lawyer who engages in any of the illegal acts listed above has violated one of the most basic professional obligations to the public, the pledge to maintain personal honesty and integrity."
15. Rule 6.31 states:
"Disbarment is generally appropriate when a lawyer: (a) intentionally tampers with a witness and causes serious or potentially serious injury to a party or causes significant or potentially significant interference with the outcome of the legal proceeding."
16. In the Commentary it is stated:
"Disbarment is warranted in cases where the lawyer uses fraud or undue influence to injure a party or affect the outcome of a legal proceeding. For example, in the matter of Stroh (citation given) a lawyer was disbarred when he was convicted of tampering with a witness. The court justified imposing disbarment on the following basis: "First the crime of tampering with a witness strikes at the very core of the judicial system and therefor necessarily involves moral turpitude."
The Age and Experience of the Member
17. The Member was called to the Bar on May 12, 1967 and except for a period of 1 year when he was suspended consequent upon a finding of professional misconduct, has practised in British Columbia since then. He has been practising for a period in excess of 33 years.
Prior Discipline Record
18. The Member has been found guilty of wrongful conduct on several occasions, as follows:
a) On October 5, 1973 he was found guilty by a Panel of:
i) conduct unbecoming relating to the stapling of a $5 bill to a court document;
ii) conduct unbecoming for a statement made to the District Registrar to the effect that Mr. Ewachniuk did not like the idea of new judges (Mr. Justice McKay) from out of town appearing to want to teach Vancouver lawyers how to practice law;
iii) professional misconduct for accusing counsel Mr. D.B. McKinnon of misleading the court and jury, misrepresenting the evidence and deceiving the court;
iv) professional misconduct for communicating with a defendant in the absence of his counsel.
For the above conduct he was reprimanded, fined $200 and ordered to pay costs.
b) On May 28, 1974 Mr. Ewachniuk was found to have offered for sale a document in the possession of his client belonging to another person. He was found to have been motivated by considerations of pecuniary gain for himself. He was found guilty of professional misconduct. He was suspended for one year and assessed costs of the hearing;
c) On October 13, 1995, Member was found guilty of professional misconduct for sending a letter dated August 16, 1999 to the Insurance Corporation of British Columbia thereby revealing confidential client information concerning the terms of his retainer agreement. The Member admitted that at the time he disclosed this information he knew that his client did not accept a settlement offer that the Insurance Corporation had advanced and he had been discharged as solicitor. He revealed information to the Insurance Corporation which was confidential and not appropriate to divulge. He was fined $2,500 and ordered to pay costs of $1,000.
d) On May 14, 1996 he was found guilty of three counts of professional misconduct for releasing monies from trust in disregard of a court order and for making allegations about the conduct of opposing counsel which bordered on allegations of criminal activity by that counsel. He was fined $5,000 and ordered to pay costs in the amount of $2,000.
19. The Panel was provided with two Conduct Review reports for consideration. The concern arising from these reports, relative to the issue of Mr. Ewachniuk’s conduct as we have determined it to be in this matter, is commentary to the effect that Mr. Ewachniuk left the Conduct Review Panels with the impression that he lacked candour, and suffered a preparedness to change his evidence, contradicting earlier statements he made concerning events being considered.
Impact Upon The Victim
20. In this case there are many victims. The Member succeeded in preventing witnesses from travelling to Canada to give evidence. The Defendant in the O.E.X. case, Coopers & Lybrand, through considerable extra effort and expense, obtained the evidence of these two witnesses by successfully requesting the trial judge to travel to St Louis, Missouri, to obtain their evidence upon deposition. Had the defendants not had deep pockets, the Member might have been successful in preventing the evidence of the two witnesses from being heard by the Court.
To a certain extent, the Law Society, and its Members, could also be deemed a victim, in that the effect of the Member’s intimidation of the witnesses carried over to the hearing before the Panel. Here again, the witnesses refused to come up to Canada to give evidence, and once again, a party was forced to the expense of going down to the United States and obtaining evidence there.
Advantage gained, or to be gained by the Member
21. The Panel found that the advantage to be gained by the Member’s client was the absence of crucial evidence in the case. Had he been successful, the Member’s reputation as a successful advocate would have been enhanced. Further, the Member would likely have received significant financial remuneration for his conduct of the case in the event of its success.
The number of times the offending conduct occurred
22. Both citations deal with the Member’s attempt to prevent the two witnesses from attending court to give evidence. In August of 1991, the Member importuned upon Mr. Carstairs, Crown Counsel, to use his office, to lay charges against the witnesses in order to prevent them from coming to Canada and giving evidence. In this, the Member was not successful, but later that month, he by his conduct effectively dissuaded the witnesses from coming to Canada. He wrote a letter, dated August 15th, in which he implied that charges would be laid against the witnesses if they came to Canada, and instructed his agent to leak the letter to the witnesses.
His wrongful conduct continued at the O.E.X. trial in October of that year, where, at worst, he encouraged Ms. Krill to give perjured evidence, and at best, stood by while she gave evidence which he knew to be false. The misbehaviour, therefore, was not of a momentary nature, but rather, planned and repeated over a period of time. It could not therefore be said to have been misbehaviour occurring in the heat of the moment.
Whether the Member has acknowledged the misconduct
23. The Member has not acknowledged the misconduct. Any remorse he feels appears to pertain to his behaviour in interviewing the witnesses, and not to the import of his actions, or their effect.
Possibility of rehabilitation
24. In 1973, at a time when the Member had been called to the Bar for six years, his behaviour was referred to as "foolish immaturity". He was told:
"It seems to us that you have shown an amazing aptitude and propensity for mismanaging a situation. It also seems to us that your conduct throughout this whole affair has shown an overly strong opinion of your own ability, and in our view, this shows a professional immaturity. While we agree with your expressed opinion that counsel must be zealous in his work on behalf of clients, this zealousness must be tempered with some care and propriety and maturity, which you did not show. Your eight years of higher education, plus six or seven years at the bar in practice, should have resulted, in our view, in much higher attitude towards these incidents when they arose.
At a later point, the Panel noted;
"If you are not prepared to control yourself, you will be in a lot of hot water in the years to come."
The Member was also admonished that:
"Zealousness cannot take the place of ethical and high-minded conduct as counsel, and we are concerned with your getting something out of this. We think you have failed to appreciate your responsibilities in your conduct of a trial, particularly in that portion you specifically described to us yesterday."
These were the remarks of the Panel which levied the penalty against the Member. The Panel which heard the citation had earlier said this of the Member:
"The Member suggested and recommended a course of action to a client without full and proper knowledge of the facts. That course of action involved his own participation in conduct which any right thinking Member would decline to undertake. It was not merely a matter of making a mistake of law or a misjudgement on facts or evidence. It was participation in a scheme or plan which was calculated to subvert the course of justice."
"It is the lawyer’s duty to assist in the administration of justice, not to enter into arrangements which suggest that evidence is a saleable commodity."
25. The various misconducts, of which the Member has been found guilty over the years, indicate a general disregard for our system of justice, rather than individual mistakes. Given what earlier Panels have said to the Member, and his "misbehaviours" since then, there does not appear any possibility of rehabilitation.
Impact on the Member of other sanctions
26. In the O.E.X proceedings, the Member was ordered to pay the sum of $25,000 for costs arising as a result of the Courts travel to St Louis, Missouri. His payment of these costs, while a factor, is not determinative of the issue of penalty in this matter for we must consider the Member's conduct, not from the point of view of adversaries in the civil litigation process, but from the mandate of governors of the legal profession and the ethical standards the profession imposes to ensure the protection of the public, and the public’s confidence in the Law Society’s Members.
The need for specific and general deterrence
27. Society receives protection from a dependable system of justice. Any behaviour which diminishes this system must be deterred.
28. In Bolton v. Law Society the Court of Appeal Civil Division, in deciding that a suspension of two years was not excessive, stated:
"It is important that there should be a full understanding of the reasons why the Tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of required standards. The purposes achieved for a longer period of time, and quite possibly indefinitely, by an order of striking off. The second purpose is the most fundamental of all; to maintain the reputation of the solicitor’s profession as one in which every Member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied readmission."
The need to ensure public confidence in the integrity of the profession
29. The misbehaviour of the Member was public knowledge. It was known to the judge who heard the O.E.X. matter, and to the judges of the Appeal Court who heard the appeal from his decision. It was known to Mr. Carstairs and his superior. It was known to the Members of the bar who participated in the O.E.X. action. It was known to the witnesses and to the parties themselves. In this manner, it is different from misbehaviour such as theft, which may only be brought to light years later, and then only as a result of an examination of financial records.
30. The public’s knowledge of the misbehaviour requires the meting out of a punishment which will re-establish its confidence in the profession.
The impact of the proposed penalty on the Member
31. The penalty of disbarment is the most serious penalty which can be meted out. It is so, not only because it takes away from the Member his ability to earn his living, but bears a stigma.
32. It is pointed out that, at the Member’s age, disbarment effectively means the end of his career in the practice of law. On the other hand, we cannot help but note that since the issuance of the Citation in November 1995 the Member has been able to continue to practice law for a period of five years.
33. Many senior and respected Members have spoken or written on behalf of the Member. They portray him as compassionate, caring of his family, a tough, but fair competitor. They spoke of him as a man whose word was his bond, a man who was generous to his friends and family, and a man who has supported indigent clients, whom he felt had a good case at law. They refer to him as innovative, feisty, a character, and in general a lawyer who has served his clients well. Most of these witnesses have spoken out for him on previous occasions when he has been cited. This bespeaks of the loyalty which he engenders in his friends and fellow practitioners and is to his credit.
Range of penalties
34. Disbarment is most frequently seen in cases where there is a theft of trust funds. However, it is not limited to such occasions. Robin Fischer, a former Member, was disbarred for conduct which involved failing to ensure a client obtained independent legal advice when they entered into a business venture together and for failing to disclose to her his status as an undischarged bankrupt. He also failed to disclose assets to his trustee in bankruptcy and was found to have misled other lawyers. In justifying the need for the disbarment the Panel stated:
"We have given this matter consideration, and it is our view that the former Member should be disbarred. His conduct is egregious and clearly demonstrates that he is unfit and unsuitable to engage in the practice of law in British Columbia."
35. In the case of McNabb, the hearing Panel ordered Mr. McNabb be disbarred and in so doing stated:
"Part of the pattern we have before us is the use of dishonesty and dishonourable tactics to manipulate those with whom Mr. McNabb has professional dealings: opposing lawyers, the court, and Legal Services Society. Opposing lawyers, the court and Legal Services Society have every reason to infer that, because Mr. McNabb is a practising lawyer, he is trustworthy: the truth is otherwise. A pattern of dishonesty, both in the first instance and in trying to cover up once an investigation is underway, is absolutely antithetical to the core values of the legal profession. For the protection of the public, and for the honour and dignity of the legal profession, we cannot authorize Mr. McNabb to practice the profession of law."
36. That penalty was appealed to the Benchers and the majority upheld the disbarment. In doing so, the majority wrote:
"Each incident of dishonesty proven before the hearing Panel was significant, on its own, and as part of a pattern. In each case, Mr. McNabb endeavoured to obtain some advantage for himself or a client, by dishonest conduct. This suggests excessive identification with the client’s cause, and inability to remain sufficiently objective about a file to retain a sense of propriety. No explanations or mitigating factors were offered. Simply put these cases demonstrate that Mr. McNabb is prepared to go too far on behalf of his clients; even so far as being dishonest."
37. The Member attempted to subvert the course of justice. That behaviour goes against the very fundamental duties of a lawyer. His action went far beyond what is acceptable for a lawyer to do in putting forward his client’s case. It cannot be excused by saying it was a lapse in judgement. It is too egregious, for had the Member been successful, his behaviour would have brought the administration of justice into great disrepute. From the evidence which unfolded, it became obvious to the Panel that the Member was aware that what he was doing was wrong. We obtained confirmation of this conclusion from the evidence of Mr. Derek Cave at the penalty hearing.
38. The Member has shown by his behaviour that he is unfit to practice law, and so must be disbarred. Further, we order that the Law Society recover the costs of this Hearing as against the Member. The parties can, of course, apply for directions in the event they are unable to agree upon the costs.
Dated this 29th day of December, 2000.
[Signatures of Richard S. Margetts, Q.C., Chair,
Gerald J. Lecovin, Q.C. and
William M. Trotter, Q.C.]