Her Majesty the Queen v. Rutigliano et al.

[Indexed as: R. v. Rutigliano]

Ontario Reports

Court of Appeal for Ontario,

Simmons, Tulloch and Pardu JJ.A.

June 22, 2015

126 O.R. (3d) 161 | 2015 ONCA 452

Case Summary

Criminal law — Appeal — Abuse of process — Crown asking for judicial stay after motion judge ordered production of documents in respect of which Crown asserted solicitor-client privilege — Crown then appealing stay — Appeal not constituting abuse of process.

Criminal law — Privilege — Solicitor-client privilege — Police officers allegedly relying on legal advice from Crown counsel in intercepting privileged communications contrary to terms of wiretap authorizations — Accused bringing motion for stay of proceedings based on abuse of process — Motion judge making mid-motion order for production of documents in respect of which Crown asserted solicitor-client privilege on ground that accused could not establish abuse of process without those documents — Order premature — Motion judge erring in making order mid-motion instead of waiting until end of abuse of process motion to determine whether basis for stay was made out without recourse to privileged documents.

The respondents were charged with a number of offences following a police investigation in the course of which investigators sought and obtained wiretap authorizations. R, one of the respondents, was a police sergeant and was responsible for the Court Bureau in Toronto, and as a result he had regular contact with prosecutors and defence lawyers. It was foreseen that there were likely to be communications that might be protected by solicitor-client privilege so the authorization required live monitoring of calls and procedures to try to avoid intercepting such calls and for sealing any privileged calls that were inadvertently intercepted. Contrary to the terms of the authorizations, investigators intercepted hundreds of presumptively privileged communications, provided summaries of these communications to investigators and relied on some of these summaries when applying to unseal some of the information obtained from the first wiretap. An officer received and examined all Blackberry messages. If they involved a solicitor, he would read them to decide if they involved a client seeking advice, in which case he would have set them aside. He concluded that none of them were, so none were set aside. He alleged that he relied on advice from Crown counsel in doing so. The commissioner of the OPP waived the privilege of all communications between the accused and Crown attorneys. The officers took this as permission to listen to all prior communications without court permission, despite the terms of the authorizations. Although the waiver could have been used in an application to unseal the communications, it could not authorize either the interception or examination of the communications. The officers said that this procedure was based on legal advice. The Crown conceded that at least 17 intercepted communications between R and his counsel were privileged, and it withdrew some of the charges as a result. The respondents brought a motion for a stay of proceedings based on abuse of process. Mid-motion, the motion judge ordered that communications between the investigators and Crown counsel be produced for his inspection despite the Crown's assertion of solicitor-client privilege over those documents. He found that it was necessary to review the documents at that point because "relevant information relating to the state of mind of [page162] state actors who have misconducted themselves is essential to proof of the overall abuse of process and is unavailable from any other source". Rather than complying with the order, the Crown requested and was granted a judicial stay. The Crown then appealed.

Held, the appeal should be allowed.

It was not an abuse of process for the Crown to seek and then appeal a stay. There was a reasonable prospect that continuing with the proceeding would have resulted in an abrogation of solicitor-client privilege, which is an interest worthy of legal protection. The fact that the Crown might instead have sought leave to appeal directly to the Supreme Court of Canada from the interlocutory ruling did not render its actions an abuse of process.

The motion judge correctly ruled that the police did not waive solicitor-client privilege when officers testified that legal advice from Crown counsel played a part in investigative decisions they made about the wiretaps. It was open to the motion judge to conclude that individual officers do not have authority to waive solicitor-client privilege in relation to the advice they receive during a case. The officers were required to answer questions about why they did certain things, which is when they indicated reliance on legal advice, which did not amount to an implicit waiver of privilege, even if they had authority to do so.

The production order was premature. Solicitor-client privilege should be abrogated only as a last resort. If satisfied that this was potentially one of those rare cases where infringement of solicitor-client privilege as between Crown counsel and police was legally available, the motion judge should not have entertained infringement of the privilege unless he was satisfied that there was no basis upon which to grant a stay of proceedings absent the privileged information. The motion judge wrongly equated the relevance of the documents with their necessity. He should have waited until at least the end of the abuse of process motion and applied the R. v. Babos test for abuse of process without the privileged information. If he was uncertain at the end of the abuse of process motion whether a stay could be granted without the privileged information, he should have waited until the end of the Crown's case. If there was no evidentiary basis for conviction, the respondents could be acquitted without infringing privilege. As the appeal was brought before the entire record on the abuse of process motion was completed and reasons on the motion delivered, there is not a proper record upon which the appellate court could determine if a stay of proceedings is inevitable, as the respondents argue. The appeal is allowed, the stay set aside and the matter remitted to the trial court.

R. v. Brown, [2002] 2 S.C.R. 185, [2002] S.C.J. No. 35, 2002 SCC 32, 210 D.L.R. (4th) 341, 285 N.R. 201, J.E. 2002-622, 157 O.A.C. 1, 162 C.C.C. (3d) 257, 50 C.R. (5th) 1, 92 C.R.R. (2d) 189, 52 W.C.B. (2d) 431; R. v. McClure, [2001] 1 S.C.R. 445, [2001] S.C.J. No. 13, 2001 SCC 14, 195 D.L.R. (4th) 513, 266 N.R. 275, J.E. 2001-564, 142 O.A.C. 201, 151 C.C.C. (3d) 321, 40 C.R. (5th) 1, 80 C.R.R. (2d) 217, REJB 2001-22807, 48 W.C.B. (2d) 514, consd

United States of America v. Fafalios (2012), 110 O.R. (3d) 641, [2012] O.J. No. 2394, 2012 ONCA 365, 259 C.R.R. (2d) 346, 292 O.A.C. 152, 284 C.C.C. (3d) 432, 101 W.C.B. (2d) 358, distd

Other cases referred to

R. v. Babos, [2014] 1 S.C.R. 309, [2014] S.C.J. No. 16, 2014 SCC 16, 2014EXP-660, 367 D.L.R. (4th) 575, 454 N.R. 86, J.E. 2014-343, EYB 2014-233436, 8 C.R. (7th) 1, 300 C.R.R. (2d) 153, 308 C.C.C. (3d) 445, 112 W.C.B. (2d) 68; [page163] R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, [1999] S.C.J. No. 16, 171 D.L.R. (4th) 193, 237 N.R. 86, J.E. 99-883, 119 O.A.C. 201, 133 C.C.C. (3d) 257, 24 C.R. (5th) 365, 41 W.C.B. (2d) 412; R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, [1997] S.C.J. No. 14, 143 D.L.R. (4th) 38, 207 N.R. 145, [1997] 3 W.W.R. 457, J.E. 97-357, 112 C.C.C. (3d) 385, 4 C.R. (5th) 259, 41 C.R.R. (2d) 266, 85 B.C.A.C. 162, 33 W.C.B. (2d) 229; R. v. Regan, [2012] 1 S.C.R. 297, [2002] S.C.J. No. 14, 2002 SCC 12, 209 D.L.R. (4th) 41, 282 N.R. 1, J.E. 2002-377, 201 N.S.R. (2d) 63, 161 C.C.C. (3d) 97, 49 C.R. (5th) 1, 91 C.R.R. (2d) 51, 52 W.C.B. (2d) 150

Authorities referred to

Dodek, Adam M., "Reconceiving Solicitor-Client Privilege" (2010), 35:2 Queen's L.J. 493

APPEAL by the Crown from the order of Hill J. granting a judicial stay of the proceedings, [2013] O.J. No. 4898, 2013 ONSC 6675 (S.C.J.) and [2013] O.J. No. 4895, 2013 ONSC 6589, 302 C.C.C. (3d) 228 (S.C.J.).

Robert Hubbard and Benita Wassenaar, for appellant.

Scott Hutchison, Owen Wigderson and Matthew Gourlay, for Mike Rutigliano.

Barry Pierson, acting in person.

The judgment of the court was delivered by

[1] PARDU J.A.: — The Crown appeals from a judicial stay of proceedings granted at its own request in the midst of a pre-trial abuse of process motion. The Crown requested the stay after the motion judge ordered that records documenting consultations between Crown counsel and police officers be produced to him so that he could determine whether they should be disclosed to the parties.

[2] On appeal, the Crown submits that solicitor-client privilege should only be breached if it is necessary, as a last resort, where factual innocence is at stake. It contends that innocence was not at stake in the pre-trial abuse of process motion and the motion judge erred in prematurely vitiating solicitor-client privilege.

[3] The respondents, on the other hand, submit Crown-police privilege must yield in the interests of justice where a prima facie abuse of process has been made out but entitlement to a stay cannot be substantiated without the production of privileged materials. They also argue waiver of privilege and contend that the appeal amounts to an abuse of process.

[4] Thus, this appeal raises four issues:

(1) Is this appeal itself an abuse of process?

(2) Was the trial judge correct when he ruled that the police had not waived the privilege attached to their communications? [page164]

(3) As a matter of law, can solicitor-client privilege between Crown and police be abrogated to permit the defence to prove abuse of process?

(4) Was the motion judge's disclosure order premature or unnecessary?

[5] For the reasons that follow, I would allow the appeal. The disclosure order made before the conclusion of the abuse of process motion was premature and unnecessary.

A. Background

[6] The respondent Rutigliano was a police sergeant working with the Ontario Provincial Police. For part of his career, he was responsible for the Courts Bureau at the Toronto detachment; as a result, he had regular contact with prosecutors and defence lawyers. An RCMP investigation led police to believe Rutigliano had ties to organized crime, and he eventually became the target of an investigation, following a suspicious bank transaction.

[7] In February 2008, Rutigliano asked a bank employee whether she would change $15,000-20,000 worth of $20 bills into $100 bills for him. The bank refused to conduct the transaction, and bank investigators reported it to police. The OPP and the RCMP investigated and obtained the relevant corporate banking records. The banking records led the OPP to believe that Rutigliano, Pierson and Maurice Clark were involved in a commission scheme with respect to Bombardier Corporation.

The wiretap authorizations

[8] Police commenced an investigation into Rutigliano, called Project Bond. Police sought and obtained four Part IV authorizations with respect to their investigation of the Bombardier allegations. The authorizations covered a period from October 2008 to April 2009. The offences named on the first application were secret commissions, money laundering and conspiracy. The first authorization provided that

(1) all oral communication were to be live monitored;

(2) no communications were to be intercepted at a solicitor's office or other place used by solicitors for client consultations;

(3) where a monitor reasonably believed that a solicitor is a party to a communication, all reasonable steps were to be taken to prevent the interception or continued interception; [page165]

(4) where a communication with a solicitor was inadvertently intercepted, all access to the communication was to be denied, but the communication could be retained and subject to an unsealing order; and

(5) text-based communications with solicitors could not be intercepted.

Subsequent authorizations repeated these and similar terms.

[9] Police had a wire-room devoted to the Project Bond investigation. Service providers simultaneously transmitted telephone calls and text messages to the wire room. Telephone calls could be listened to live and were recorded and saved for future listening. The technology used to collect the intercepted calls and text messages contained a classification scheme. Communications classified as "privileged" were supposed to be sealed, and access to those communications restricted. The technology used created reports of how often each communication was accessed and reviewed, and by whom.

[10] Blackberry messages were collected and managed using a different process. They were not sent through the wire-room, but rather went directly to Det. Sgt. Gordon Gregus, the Project Bond file coordinator.

The charges

[11] A police investigation led to various charges against Pierson and Clark, who has since pleaded guilty, and four sets of charges against Rutigliano:

(1) The "Mavroudis" charges: breach of trust, obstruct justice and conspiracy to obstruct justice charges were brought against Rutigliano. The charges related to an alleged scheme to provide Peter Mavroudis with false identification to allow him to live under an assumed name and escape outstanding fraud charges.

(2) The "Bombardier" charges: Rutigliano was charged with fraud and giving secret commissions. Pierson was charged with accepting secret commissions. Both faced conspiracy to give/accept secret commissions and proceeds of crime charges. The charges related to an alleged scheme to pay secret commissions to Pierson and Clark in return for them directing millions of dollars of aircraft repair work to ATS.

(3) The "D'Angelo" charges: obstruct justice, breach of trust and conspiracy to obstruct justice charges were brought against [page166] Rutigliano. He was alleged to have helped a friend, Frank D'Angelo, defend a charge of sexual assault.

(4) Weapons charges: Rutigliano was charged with possessing prohibited weapons.

[12] The respondent Pierson was charged only in relation to the Bombardier scheme. He was one of the two senior employees of Bombardier Inc. alleged to be involved in the scheme. The other employee was Clark. The Crown alleged that Rutigliano, Pierson and Clark formed a company to conduct mobile aircraft repair work, and then developed a scheme whereby Pierson and Clark would obtain secret commissions in return for directing work to their company.

[13] It was anticipated that the indictment would be severed into four separate indictments after pre-trial motions were completed. The pre-trial motions included a motion to stay the proceedings for abuse of process. A significant part of the abuse of process motion related to the implementation of wiretap authorizations.

Failure to comply with terms of authorizations

[14] According to the court orders authorizing interceptions, if a solicitor was a party to a conversation, all reasonable steps had to be taken to stop the interception or continued interception. If a communication with a solicitor was inadvertently intercepted, the record of the communication was to be retained, but all access to it was denied, until a court could decide whether access would be permitted. Text-based communications did not have to be monitored but the order nonetheless forbade interception of text-based communications with lawyers.

[15] During the course of the abuse of process motion, the Crown admitted problems with the implementation of the wiretaps. As the officer in charge of the courts bureau for the OPP in Toronto, Rutigliano had frequent contact with lawyers for the Crown and defence.

[16] Contrary to the wiretap authorization, his telephone communications were not live monitored but were automatically recorded and retained. The computer system was not set up in a way that would have permitted live monitoring. Summaries of intercepted solicitor calls were provided to the investigative team through daily call logs. Investigators examined communications with solicitors after they had been classified as "privileged" without obtaining a court order for access. Hundreds of presumptively privileged communications were intercepted and [page167] recorded. Summaries of intercepts with solicitors that should not have been intercepted were recorded, stored and disseminated to investigators. Summaries of the content of solicitor calls were relied on in an application to unseal some of the information gleaned from the first wiretap. In one case, although a live monitor warned that a communication with a solicitor was about to be intercepted through a room probe, an investigator listened to the entire call, knowing it was presumptively privileged.

[17] Investigators looked at printed copies of all intercepted Blackberry messages. When a communication was with a lawyer, Detective Sergeant Gregus, the file coordinator for the investigation, would read the communication and decide whether it involved a client seeking advice from a lawyer. If so, he put it aside. He did not mark any of the communications as privileged. He testified that he adopted this practice as a result of consultations with Crown attorneys.

[18] In early 2009, the commissioner of the OPP waived any privilege attached to any communications between Rutigliano and any Crown attorney for the period January 1, 2004 to February 11, 2009. Investigators took this as authority to listen to and record all such communications and to access any such previous communications without obtaining court permission, although the wiretap authorizations forbade this practice. The waiver would have supported an order to unseal those communications, but did not authorize their interception or examination. Again, this conduct was said to be supported by legal advice.

[19] Ultimately, the Crown conceded that at least 17 of the intercepted private communications between Rutigliano and counsel were in fact privileged. Twelve were Blackberry messages, four were telephone calls and one was a facsimile.

[20] Faced with these difficulties, the Crown abandoned reliance on the intercepted communications and withdrew the Mavroudis and the D'Angelo charges.

[21] The defence position was that the balance of the charges should be stayed because of the serious nature of the misconduct related to the wiretaps. It was in this context that the motion judge ordered that communications between the investigators and Crown counsel be produced for his inspection despite the Crown's assertion of solicitor-client privilege over those materials.

B. Motion Judge's Decision

[22] In his ruling on solicitor-client privilege, the motion judge explained the context in which the disclosure issue arose [page168] [[2013] O.J. No. 4895, 2013 ONSC 6589 (S.C.J.), at paras. 149, 152 and 163]:

The parties are in agreement that counsel for the Attorney General of Ontario provided legal advice to Project Bond investigators respecting the Blackberry messages and the interpretation as to how the Commissioner Fantino waiver(s) should be implemented. The advice may have been legally/ constitutionally correct or not. Whatever the advice, it may or may not have been relied upon in whole or in part. Police actions respecting these two matters have been shown to be prima facie unlawful/unconstitutional and have been acknowledged as such by the Crown.

Counsel for the Attorney General of Ontario prosecuting the applicants have declared that the Crown is foregoing any reliance on legal advice provided by other counsel for the Attorney General of Ontario which might be characterized as good faith explanation for unconstitutional/illegal actions by the police. However, Crown counsel are unprepared to acknowledge bad faith on the part of the police and/or its own lawyers respecting these two issues.

Here, there has been a prima facie demonstration of the alleged abuse in terms of multiple acts of police misconduct relating to the Part VI orders. Not only has the Crown fairly conceded many of these acts, and rightly described them as "serious" and of "pronounced seriousness" but by withdrawing reliance on the wiretap evidence and in turn various charges before the court, the prosecution has effectively acknowledged that the state misconduct has been such that it could not reasonably argue that admission of the evidence would not bring the administration of justice into disrepute.

[23] The first issue for the motion judge to decide with respect to solicitor-client privilege was waiver. He concluded that there was no waiver of privilege by the OPP over the materials in question.

[24] In considering whether solicitor-client privilege could be abrogated in the context of an abuse of process motion, he undertook an extensive review of the case law, including R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, [2001] S.C.J. No. 13, 151 C.C.C. (3d) 321 and R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, [2002] S.C.J. No. 35, 162 C.C.C. (3d) 257.

[25] He set out the McClure test for disclosure as follows [at paras. 111-13]:

The McClure test comprises a threshold question and, depending on the answer, a two-stage innocence-at-stake test. Under this regime, the burden of proof on a balance of probabilities rests throughout upon the accused: Brown, at para. 56.

To satisfy the threshold test, steeped in a necessity determination, an accused must establish that: [page169]

(1) the information sought from the solicitor-client communication is not available from any other source and

(2) that he or she is otherwise unable to raise a reasonable doubt.

Where the threshold is satisfied, the court should proceed to the innocence at stake test:

Stage #1 -- with such information concerning the alleged communication as has come to the accused's attention, the accused seeking disclosure/production of a written or oral solicitor-client communication must demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his or her guilt

Stage #2 -- if such an evidentiary basis exists, the court shall examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to guilt.

[26] Ultimately, the motion judge applied a modified version of the McClure test for disclosure in determining whether the relevant Crown-police communications should be disclosed to him in the abuse of process context.

[27] He found that the relevant communications [at para. 167] "could be essential in terms of materially advancing proof of the state of mind component which is a critical . . . aspect of abuse of process".

[28] He found that it was necessary, without awaiting the end of the motion, to review the relevant documents [at para. 166]:

[R]elevant information relating to the state of mind of state actors who have misconducted themselves is essential to proof of the overall alleged abuse of process and is unavailable from any other source. We have moved beyond the helpful to necessary. The necessity is apparent now without awaiting the end of the motion.

[29] He concluded that, on balance, the applicants had established that the relevant solicitor-client communications could, in a material way, establish an abuse of process. Accordingly, it was necessary for him to review the communications to determine whether, in fact, the communications were [at para. 169] "likely to significantly advance the record as to the intention of the relevant state actors". If the "communications [were] likely to substantiate proof of the existence of abuse of process", then disclosure to the parties would be warranted.

[30] Rather than complying with the order, the Crown requested a judicial stay for the following reasons:

While the Crown cannot speak to the content, at this time, of any Crown files, as none have been reviewed, the Crown has already reviewed and redacted several officer notes that record the legal advice from the Crowns regarding the execution issues pertaining to the Part 6 orders that have been identified in the court's ruling. [page170]

In the Crown's respectful view the Court, having already determined that those files could, in a material way, establish an abuse of process, it is inevitable that upon this court's review of those notes that record the content of the legal advice from the Crowns, that this court would conclude that those notes must be disclosed even if some other included irrelevant material was redacted.

Accordingly, rather than spending considerable prosecutorial resources finding, reviewing and producing all of the privileged information for the second stage review and then waiting until the precise moment that the court makes an order disclosing that material to the defence, and then rising at that time to request that the court impose a judicial stay, the Crown respectfully makes the request now that a judicial stay be entered.

. . . [I]n doing so, the Crown is acting solely to prevent irreparable harm being caused to a legally recognized interest worthy of protection, that is, the solicitor/client privilege that existed and exists between the OPP investigators and the Crown counsel who provided them advice during the investigation.

[31] The motion judge granted the Crown's request and terminated the proceeding by entering a judicial stay.

C. Analysis

Issue #1: Is this appeal itself an abuse of process?

[32] The respondents submit that the Crown's appeal should be dismissed as an abuse of the court's process. In their submission, the Crown made a pragmatic decision to ask for a judicial stay of the proceedings to avoid having the court rule on whether disclosure to the parties should be ordered. They say refusing to comply with the motion judge's order and short-circuiting the disclosure process by way of an interlocutory appeal amounts to an abuse of process.

[33] In making this submission, they primarily rely on United States of America v. Fafalios (2012), 110 O.R. (3d) 641, [2012] O.J. No. 2394, 2012 ONCA 365. In Fafalios, an extradition judge made a disclosure order. The Crown partially complied with that order. The extradition judge then made a second order, requiring, among other things, the disclosure of communications between police and Crown counsel. The Crown objected on the ground of relevance, but did not assert solicitor-client privilege. The Crown indicated it was not prepared to make further disclosure and invited the court to either grant a discharge or stay proceedings. The court granted a discharge and the Crown appealed. On appeal, the Crown argued for the first time that compliance with the disclosure order would infringe solicitor-client privilege and harm international relations.

[34] This court recognized in Fafalios that a prosecutor confronted with an interlocutory order to which it objects has two [page171] options. It can either continue with the proceedings and appeal after the case is terminated, or, where there is no reasonable alternative, bring the proceedings to a halt and appeal the interlocutory ruling: Fafalios, at para. 42. There may be no reasonable alternative other than to pursue a functional appeal of an interlocutory order where (1) the effect of the interlocutory ruling is to leave the Crown without a case or (2) "compliance with the interlocutory order raises a reasonable prospect of harm to an interest the court deems worthy of protection": Fafalios, at para. 44.

[35] In the circumstances, this court concluded that the Crown's appeal amounted to an abuse of process. The Crown had failed to object to the disclosure orders before the extradition judge on the basis of privilege or harm to international relations. Having failed to do so, it was an abuse of process to raise those issues on appeal.

[36] This case is different. The Crown asserted solicitor-client privilege before the motion judge. The focus of his ruling was solicitor-client privilege. While the motion judge ordered that the relevant materials be disclosed to himself and not yet to the parties, the Crown acknowledged that it was inevitable that the court would order disclosure of the officers' notes recording the legal advice from the Crowns. Rather than spending time finding, reviewing and producing all privileged information, it requested a judicial stay to prevent the disclosure of privileged solicitor-client communications. Counsel for the respondents agreed that the court make the requested order.

[37] I see no abuse of process in the manner in which the Crown terminated the proceedings before the motion judge or brought this appeal. I accept that, in the circumstances of this case, there was a reasonable prospect that continuing with the proceeding would have resulted in an abrogation of solicitor-client privilege, which is an interest worthy of legal protection. The fact that the Crown might have instead sought leave to appeal directly to the Supreme Court of Canada from the interlocutory ruling does not render its actions here an abuse of process.

Issue #2: Was the motion judge correct when he ruled that the police had not waived the privilege attached to their communications?

[38] The respondents argued that when individual officers testified that advice from Crown counsel played a part in investigative decisions they made about the wiretaps, this amounted to waiver of solicitor-client privilege as between the OPP and the [page172] Crown. There is no dispute that legal advice from Crown counsel to police officers is protected by solicitor-client privilege: see R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, [1999] S.C.J. No. 16, 133 C.C.C. (3d) 257, at para. 49. The question before the motion judge -- and on this appeal -- was not whether the relevant communications were privileged but whether privilege was waived.

[39] The motion judge held that the individual officers who testified did not have the authority to waive solicitor-client privilege on behalf of the OPP [at paras. 134-35]:

In my view, in the circumstances of the present case, individual police witnesses did not have authority to waive solicitor-client privilege respecting legal advice sought and received in the course of their duties as Project Bond investigators. In this regard, Campbell and the authorities which have followed it are to be preferred in identifying the head of the police force, or his or her designate for the purpose, as the responsible party to waive privilege.

A Chief of Police or Commissioner will have a force-wide perspective of the instances where solicitor-client privilege ought to be waived with a view to relevant institutional factors, for example consistency of approach, avoidance of civil suits, etc., within the knowledge and policy-making purview of the force's management.

[40] The motion judge further held that, quite apart from the authority-to-waive issue, officers' responses to questions in cross-examination about why they undertook the course of action they did was not sufficient to trigger a waiver of solicitor-client privilege. As witnesses, the officers were bound to answer the questions put to them and this could not amount to waiver of solicitor-client privilege.

[41] The respondents have not pointed to any error warranting interfering with the motion judge's finding that there was no waiver of solicitor-client privilege in the circumstances of this case. It was open to the motion judge to find that the individual officers had no authority to waive privilege and, in any event, there was no implicit waiver by the officers.

Issue #3: As a matter of law, can solicitor-client privilege between the Crown and police be abrogated to permit the defence to prove abuse of process?

[42] This appeal raises an issue explicitly left unanswered in R. v. Campbell, supra, at paras. 65 and 66:

Another exception to the rule of confidentiality of solicitor-client privilege may arise where adherence to that rule would have the effect of preventing the accused from making full answer and defence: see R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, at p. 340; R. v. Dunbar (1982), 1982 CanLII 3324 (ON CA), 68 C.C.C. (2d) 13 (Ont. C.A.), at p. 43; R. v. Gray (1992), 1992 CanLII 406 (BC SC), 74 C.C.C. (3d) 267 (B.C.S.C.), at pp. 273-74. The Crown concedes the validity of the principle, but suggests that it is irrelevant to an abuse of process application because it applies only where [page173] "innocence is at stake", which is no longer the case in the present appeal. Where innocence is not at stake, the Crown contends, the accused's right to make full answer and defence is not engaged. In this connection, the Crown relies upon R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, per McLachlin J., at p. 607, and A. (L.L.) v. B. (A.), 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536, per L'Heureux-Dubé J., at p. 561. I do not think these cases can be taken as deciding an issue that was not before the Court on those occasions. The Ontario Court of Appeal concluded at p. 200 that the full answer and defence exception applied because "the entire jeopardy of the appellants remained an open issue until disposition of the stay application". This may be true, but the appellants were not providing "full answer and defence" to the stay application. On the contrary, the appellants are the moving parties. The application is being defended by the Crown. The appellants' initiative in launching a stay application does not, of itself, authorize a fishing expedition into solicitor-client communications to which the Crown is a party.

As stated, the present appeal is decided on the basis of waiver of solicitor-client privilege and I leave for another day the decision whether, in the absence of waiver, full answer and defence considerations may themselves operate to compel the disclosure of solicitor-client privilege of communications in an abuse of process proceeding and, if so, in what circumstances.

[43] The Crown's position on this appeal is that the question left open in Campbell has been answered, at least implicitly, by McClure and Brown. Relying on the two cases, the Crown submits that solicitor-client privilege is nearly absolute and should be breached only when factual innocence is at stake. As it reads the two cases, the "innocence at stake" exception described by the Supreme Court of Canada cannot be used to abrogate solicitor-client privilege in support of an abuse of process application.

[44] The respondents take the position that McClure and Brown do not foreclose abrogation of solicitor-client privilege in the abuse of process context. They distinguish McClure and Brown on the basis that, in those cases, private individuals asserted the privilege. In McClure, the accused charged with sexual offences sought access to the civil litigation file of the lawyer engaged by the complainant to sue him. In Brown, an accused charged with murder sought production of a lawyer's files allegedly recording a third party's confession to the murder. The respondents also point to R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, [1997] S.C.J. No. 14, 112 C.C.C. (3d) 385, distinguishing it on the basis that it involved informer privilege and disclosure of the informer's identity would have put the person's safety at risk.

[45] Here, in contrast, the respondents point out that the parties to the communications hold public office and carry out public duties. The first question on the abuse of process application is "whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with the trial in the fact of that conduct would be harmful to the [page174] integrity of the justice system": R. v. Babos, [2014] 1 S.C.R. 309, [2014] S.C.J. No. 16, 2014 SCC 16, at para. 35. The respondents question, "why should the state be entitled to shelter its own unconstitutional conduct from scrutiny behind a claim of privilege?" The facts in this case go beyond bald allegations of state misconduct. The Crown has conceded that police did not comply with the court-ordered restrictions on their interceptions of private communications after they got advice from Crown attorneys.

[46] The respondents also rely on an article by Professor Adam Dodek, who argues that the purpose of enshrining solicitor-client privilege as a powerful constitutional right is to protect the dignity, autonomy and privacy of individuals, and that organizations such as governments and corporations have no need of this protection (Adam M. Dodek, "Reconceiving Solicitor-Client Privilege" (2010), 35:2 Queen's L.J. 493, at p. 513), that "the privilege hampers the search for truth, transparency and accountability".

[47] Various appellate and trial courts have come to opposite conclusions on whether full answer and defence considerations may require disclosure of privileged communications in an abuse of process proceedings and, if so, in what circumstances. However, this case is not an appropriate one in which to answer that question. For the reasons that follow, the motion judge's disclosure order was premature and unnecessary. Determination of this question should await a full factual record.

Issue #4: Was the motion judge's disclosure order premature or unnecessary?

[48] The Crown submits that even if it were possible to extend the "innocence at stake" exception to solicitor-client privilege to claims of abuse of process, the motion judge erred in ordering production of the material before the end of the abuse of process motion. The Crown submits that it was both premature and unnecessary for the motion judge to breach the privilege when he did. At a minimum, he should have heard all of the evidence on the motion before deciding the issue, says the Crown.

[49] The respondents make two points in response. First, the prematurity issue was not raised before the motion judge. Second, in the particular circumstances of this case, it would be "profoundly uneconomical" to wait to decide the solicitor-client privilege issue until the end of the case.

[50] I agree with the Crown's position that, in the circumstances, the disclosure order was premature. Even if it is open to a court to order disclosure of privileged communications between the Crown and police in the abuse of process context, the [page175] Supreme Court has made it clear that solicitor-client privilege should only be abrogated as a last resort.

[51] In McClure, the court stated that "the occasions when solicitor client privilege yields are rare and the test to be met is a stringent one": para. 5; see, also, Brown, at para. 3. In Brown, the court reiterated that the innocence at stake exception "is intended to be a rare exception and used as a last resort": para. 3. Piercing solicitor-client privilege should be "treated as an extraordinary measure": Brown, at para. 27.

[52] In Brown, the motion judge struggled with the question of whether the accused could raise a reasonable doubt as to his guilt without the privileged material. He considered leaving the matter until the Crown's case was completed but was concerned about maintaining the orderly conduct of the trial, and avoiding undue delay and disruption to the jurors: Brown, at para. 46.

[53] The Supreme Court concluded that the motion judge had acted prematurely. It was not clear at the time that the privileged material was not available from another source. Nor was it clear that the privileged information was necessary for the accused to raise a reasonable doubt: Brown, at para. 5.

[54] Major J. discussed the timing of McClure applications at some length. He stressed that, as a general rule, they should be delayed until the end of the Crown's case, which he acknowledged may interfere with the orderly conduct of cases and create delay or disruption to jurors: Brown, at para. 55. He explained the rationale for delaying McClure applications as follows [at paras. 52 and 54]:

In the usual case, it would be preferable to delay the McClure application until the end of the Crown's case. This will better permit the trial judge to assess the strength of the Crown's case against the accused, and to determine whether the accused's innocence is, in fact, at stake. If the Crown has failed to prove its case beyond a reasonable doubt, then there will be no need to allow the McClure application and invade a third party's solicitor-client privilege. This will prevent the privilege from being unnecessarily violated.

If the trial judge believes that the Crown has made a strong case in chief, but that the defence may be able to raise a reasonable doubt through its evidence, she may again decide to deny or postpone the McClure application. However, there is nothing to prevent the defence from renewing its McClure application during its side of the case in the belief that it will not otherwise be able to raise a reasonable doubt. Having heard a greater portion of the evidence, the trial judge will be better able to assess whether the accused's innocence is at stake. In any event, the McClure application is not a "one shot" affair. Although defence counsel should not abuse the process, they may bring McClure applications at different times in the trial if they believe [page176] that the accused's innocence is at stake. I stress again that the trial judge should only allow the McClure application if and when she is of the view that the accused will be unable to raise a reasonable doubt without the evidence protected by the privilege. If there is or may be some evidence upon which a reasonable jury, properly instructed, could acquit, the McClure application should be denied or postponed.

[55] Thus, a judge should allow a McClure application only if and when the judge is of the view that the accused will be unable to raise a reasonable doubt without the evidence protected by privilege.

[56] Translating those principles into the present context, if satisfied that this was potentially one of those rare cases where infringement of solicitor-client privilege as between Crown counsel and police was legally available, the motion judge should not have entertained infringement of the privilege unless he was satisfied that there was no basis upon which to grant a stay of proceedings absent the privileged information. If a stay was appropriate without recourse to the privileged information, he could have granted the stay without infringing solicitor-client privilege. If he was uncertain at the end of the abuse of process motion whether a stay could be granted without the privileged information, he should have waited until the end of the Crown's case. If there was no evidentiary basis for conviction, the accused could be acquitted without infringing privilege.

[57] As highlighted above, the motion judge concluded that assertion of the privilege deprived the respondents of information "relating to the state of mind of those said to be responsible for significant aspects of what is being advanced as an abuse of process arising from cumulative state misconduct". He concluded as follows [at para. 166]:

[R]elevant information relating to the state of mind of state actors who have misconducted themselves is essential to proof of the overall alleged abuse of process and is unavailable from any other source. We have moved beyond helpful to necessary. The necessity is apparent now without awaiting the end of the motion.

[58] In my view, he wrongly equated necessity with relevance. There is no doubt that assertion of solicitor-client privilege can deprive a decision maker of relevant information. The motion judge did not analyze whether the basis for a stay had or could otherwise have been established in any event. The respondents submit that a stay was inevitable, given the serious misconduct which had been demonstrated.

[59] In my view, the motion judge erred in ordering production of privileged materials prematurely and absent a finding of [page177] necessity, that is to say, a finding that there was no other way of establishing an abuse of process and obtaining a stay. He should have waited until at least the end of the abuse of process motion, and applied the R. v. Babos test for abuse of process, at para. 32, without the privileged information [[2013] O.J. No. 4895, 2013 ONSC 6589 (S.C.J.), at paras. 86 and 90]:

(1) there must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (R. v. Regan, [2012] 1 S.C.R. 297, [2012] S.C.J. No. 14, at para. 54);

(2) there must be no alternative remedy capable of redressing the prejudice; and

(3) where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

[60] This will require an assessment of whether, for example, exclusion of the wiretap evidence is capable of redressing the prejudice, and perhaps balancing the interests in favour of granting or refusing a stay.

D. Disposition of Appeal

[61] The respondents submit that it is not appropriate to remit the matter to the trial court as there is no realistic possibility that there will be a different result if the matter is remitted. In their submission, a stay of proceedings is inevitable.

[62] This appeal was brought before the abuse of process motion was finished. Without a full record or reasons on the abuse of process motion, this court is not in a position to determine whether or not a stay for abuse of process is inevitable.

[63] Accordingly, the appeal is allowed, the stay is set aside and the matter remitted to the trial court.

Appeal allowed.

End of Document