Daniel Libman

The Crown brought a pre-trial motion seeking a ruling that the accused had waived solicitor-client privilege regarding communications with his former counsel.

The accused had filed a written waiver at the preliminary hearing, purporting to limit the waiver to oral communications during a specific time period and solely for the purpose of the preliminary hearing.

The court held that the waiver could not be limited to the preliminary hearing, as doing so would allow the accused to use privilege as a sword rather than a shield and risk misleading the court.

The Crown was permitted to cross-examine the former counsel on any relevant communications within the specified time frame.

The accused was charged with trafficking heroin and claimed he was acting as a police agent under the direction and control of an unnamed detective, relying on the exemption in s. 4 of the Controlled Drugs and Substances Act (Police Enforcement) Regulation.

The Crown brought a motion arguing there was no air of reality to this defence.

The court reviewed the accused's testimony and found that he had explicitly rejected the detective's instructions and acted on his own initiative when arranging the drug transaction.

The court concluded there was no evidential foundation that the accused was acting under the direction and control of a police officer, and ruled the defence would not be put to the jury.