Court File and Parties

COURT FILE NO.: 18-0552 DATE: 2019 04 18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – RAJA DOSANJH Applicant

COUNSEL: J. Forward, for the Crown B.J. Greenshields and J. Greenspan, for the Applicant J. Stoffman-Sidlofsky, for the Guelph Police Service

HEARD: April 15, 2019

LEMON J.

Ruling Re: Waiver of Police Solicitor-Client Privilege

Restriction on Publication

A Non-Publication Order is made pursuant to ss. 645(5) and 648(1) of the Criminal Code of Canada that publication of this ruling is prohibited.

The Issue

[1] The defence submits that the issue to be decided is “whether the Guelph Police implicitly waived solicitor-client privilege by putting in issue in the ITO its state of mind regarding the infotainment search, and specifically by asserting reliance upon legal advice from the Crown to buttress its good faith explanation for the warrantless search.”

[2] If so, the defence asks that the Crown disclose the specific advice given by the Crown relating to the search. If the relevant advice was documented, the defence seeks that documentation for the period of March 4, 2016 to July 31, 2017. If those documents are produced, the defence agrees that extraneous matters can be redacted from them.

Background

[3] Mr. Dosanjh is charged with first degree murder. We are part way through a number of pre-trial motions brought by the Crown and defence. To set the context, I can simplify the current status of the outstanding motions as follows.

[4] One of the significant pieces of Crown evidence pointing to Mr. Dosanjh as the killer is the “Infotainment Evidence” gathered from an Infiniti QX60 motor vehicle. There are two separate pieces of evidence that were obtained from the QX60: GPS track logs and a contact list from a cellphone.

[5] On the evidence to date, it appears that the police obtained the electronic evidence in issue, advertently or inadvertently, before obtaining the warrant. That issue is for another motion. The defence submits that the details of obtaining that information prior to the warrant are not set out in full, frank and fair detail.

[6] As part of pre-trial motions, the defence seeks to exclude that evidence, which was obtained through a search warrant. Within the Information to Obtain (“ITO”) the warrant, there were references to legal advice. The relevant parts of that ITO are as follows (I have underlined the references to legal advice):

10. In March of 2016, the Guelph Police, in consultation with legal counsel, were of the view that judicial authorization was required in order to access the contents of the infotainment system. The Guelph Police had consulted with staff at Infiniti Canada, specifically Mr. Preston Wong, a technician with that company. Based on this information, it was believed to be likely that the infotainment system could contain information related to any cell phones (including activity) that may have been paired with it, including information related to addresses inputted into the system or information about destinations. The privacy interests that could be engaged were identified by Guelph Police and it was determined that before the system was accessed, judicial authorization would be obtained. Unfortunately, this did not occur which triggers this application now.

11. In summary, this application addresses an error that led to the accessing and analysis of the infotainment system of the Infiniti QX60 without prior judicial authorization. The application requests a search warrant for the police locker to re-seize the information provided to the Guelph Police by Mr. Dupuis of the OPP without warrant. The application also requests a judicial authorization to continue the analysis of the infotainment unit. I do not rely on any of the information obtained by Mr. Dupuis without warrant, in order to support this application. I believe that there are objectively sufficient grounds to have supported judicial authorization prior to Mr. Dupuis searching the infotainment system. I maintain objectively sufficient grounds continue to exist separate and apart from anything already inadvertently obtained from the infotainment system.

12. This information is pertinent for multiple reasons. Firstly, the Guelph Police were of the belief that information was stored on the infotainment system, specifically contact names and numbers from cellular devices paired with the infotainment unit from anyone who had rented the vehicle. However, the Guelph Police were of the knowledge that it may not be possible to conduct a search of the infotainment system in order to retrieve the information, but that steps were going to be taken to access the unit to obtain information from it. The Guelph police had considered the privacy interests at stake and had sought legal advice in respect of such interests, and it was decided at that time (March 2016) that should technology develop so as to allow for access be gained to the infotainment system, a search warrant pursuant to section 487 of the Criminal Code should be sought. Bearing this decision in mind, the Police waited to hear from the OPP about their ability to gain access to the infotainment system. Unfortunately, Jeremy Dupuis did not alert the Guelph Police that he was able to gain access to the infotainment system, as he was never told he was required to do so. Had he communicated this ability to Detective Constable Welsh, the Guelph Police would have told him that a search warrant was required before conducting the search of the infotainment System, as this was consistent with the legal advice received.

13. The following paragraphs are written to provide all the information that has been obtained from the infotainment system in the Infiniti QX60 used in the shooting of Aly Sunderani on March 1st, 2016. As set out above, due to unfortunate circumstances, the Guelph Police were supplied with these details without first obtaining a search warrant, as was deemed necessary after consultation with legal counsel in March of 2016.

[7] The footnotes also played into the argument. Those footnotes are as follows:

84. I was involved in conversations with Crown Counsel in March of 2016 in relation to the need for judicial authorization to search the infotainment system.

85. I spoke with Detective Welsh in respect of his understanding of the requirement for a warrant as per Crown Counsel advice.

Positions of the Parties

[8] The defence submits that the Guelph Police Service has voluntarily and expressly put its good faith in issue in the body of the ITO. Part of its evidence to support its good faith is its reliance upon consultations with the Crown to buttress its position before the issuing justice. Accordingly, the Guelph Police Service has waived the right to shelter the contents of that advice behind solicitor-client privilege. The defence submits that R. v. Campbell, [1999] 1 S.C.R. 565 is dispositive of the issue.

[9] In response, the Crown denies that solicitor-client privilege was waived. If it was waived, it was inadvertent. That inadvertence has not waived the privilege by the Guelph Police Service, the holder of the privilege.

[10] Finally, in any event, the Crown “expressly disavowed reliance of any solicitor-client advice in this case – both in reply to this application and in a review of the sufficiency of the warrant.”

[11] On behalf of the Guelph Police Service, it is submitted that the Guelph Police Service has not waived privilege and otherwise adopts the position of the Crown.

Analysis

[12] It is clear that Guelph Police Service has not expressly waived the privilege. That is not in dispute. The only question is whether there has been an implied waiver of the privilege.

[13] Given the significance of Campbell to the argument, it is best to set out the context of the case by its relevant paragraphs.

[14] There, Binnie J. said the following at paras. 1-3, 6, 46-47, and 68:

1. In this appeal the Court is asked to consider some implications of the constitutional principle that everyone from the highest officers of the state to the constable on the beat is subject to the ordinary law of the land. Here the police were alleged to have violated the Narcotic Control Act, by selling a large quantity of hashish (cannabis resin) to senior “executives” in a drug trafficking organization as part of what counsel called a “reverse sting” operation. The appellants, as purchasers, were charged with conspiracy to traffic in cannabis resin and conspiracy to possess cannabis resin for that purpose. The trial judge found the appellants guilty as charged but, before sentencing, heard the appellants’ motion for a stay of any further steps in the proceeding. The appellants argued that the reverse sting constituted illegal police conduct which “shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention” (see R. v. Power). The stay was refused by the courts below.

2. As part of their case for a stay the appellants sought, but were denied, access to the legal advice provided to the police by the Department of Justice on which the police claimed to have placed good faith reliance. The Crown indicated that the undisclosed advice assured the police, rightly or wrongly, that sale of cannabis resin in the circumstances of a reverse sting was lawful. The appellants argue that the truth of this assertion can only be tested by a review of the otherwise privileged communications.

3. We are therefore required to consider in the context of the “war on drugs”, the effect of alleged police illegality on the grant of a judicial stay of proceedings, and related issues regarding the solicitor-client privilege invoked by the RCMP and pre-trial disclosure of solicitor-client communications to which privilege has been waived.

4. On the return of the stay motion, the Crown set out to establish that the police had at all stages acted in good faith and in the belief that the reverse sting was legal . . .

5. Counsel for the Crown has invited the Court to evaluate the police conduct throughout the reverse sting and submits their actions do not constitute an abuse of process. One of the issues is good faith, as discussed in A. Choo, Abuse of Process and Judicial Stays of Criminal Proceedings. As evidence of the fact that the reverse sting was undertaken “with the purest of motives”, the Crown has pointed out that the reverse sting proposal went through between 9 and 14 stages of approval before finally being authorized. The reverse sting operation was carefully planned, narrowly targeted, and ensured that no hashish actually changed hands, and thus never entered the criminal black market. Most importantly for present purposes is the fact that the Crown emphasized the good faith reliance of the police on legal advice. In the factum prepared for the Ontario Court of Appeal, for example, the argument was put as follows:

6. The conduct of the R.C.M.P. in the present case falls far short of conduct that has hitherto received the courts’ seal of approval. In the case at bar, as in the aforementioned case law, there has been no abuse of process or any conduct by the police that could “shock the conscience of the community”. In particular, regard must be had to the following considerations: (f) The R.C.M.P. based, at least in part, the legality of there [sic] investigatory techniques on valid case law (R. v. Lore) and consulted with the Department of Justice with regard to any problems of illegality. [Emphasis added.] The RCMP’s reliance on legal advice was thus invoked as part of its “good faith” argument. The privilege belonged to the client, and the RCMP joined with the Crown to put forward that position. While not explicitly stated in so many words, the plain implication sought to be conveyed to the appellants and to the courts was that the RCMP accepted the legal advice they were given by the Department of Justice and acted in accordance with it. The credibility of a highly experienced departmental lawyer was invoked to assist the RCMP position in the abuse of process proceedings.

7. The Crown now says that the content of communications between the police and the Department of Justice could not affect the issue as to whether the conduct of the RCMP gave rise to an abuse of process. The Crown says it does not matter what the RCMP were told as to the legality of the reverse sting operation the RCMP planned. Assuming the worst, the Crown says, no stay is warranted. On this point they rely on the analysis of the Court of Appeal, already quoted at para. 13, that if it were shown that the RCMP “moved ahead on their own as mavericks” despite legal advice to the contrary, it would be “of about equal weight” to a situation where the RCMP acted on a positive legal opinion that what they proposed to do would be lawful. With respect, I do not agree. A police force that chooses to operate outside the law is not the same thing as a police force that made an honest mistake on the basis of erroneous advice. We have no reason to think the RCMP ignored the advice it was given, but as the RCMP did make an issue of the legal advice it received in response to the stay applications, the appellants were entitled to have the bottom line of that advice corroborated.

8. It is convenient to recall at this point that at the time of the original disclosure motions, the position of the appellants was clear, i.e., disclose the communications or forswear reliance upon them. Notwithstanding this caution, the RCMP and their legal counsel chose to rely upon the communications to support their argument of good faith reliance. In doing so, the privilege was waived. [Citations omitted]

[15] I do not see that this case assists the defence. In Campbell, the RCMP had clearly put in issue the received legal advice. There was no dispute that the activity carried out by the RCMP was illegal. Only by relying upon legal advice could a good faith argument be put forward. However, per Campbell at para. 47:

A police force that chooses to operate outside the law is not the same thing as a police force that made an honest mistake on the basis of erroneous advice. We have no reason to think the RCMP ignored the advice it was given, but as the RCMP did make an issue of the legal advice it received in response to the stay applications, the appellants were entitled to have the bottom line of that advice corroborated.

[16] Here, there is no suggestion of illegal activity by the police. There is certainly a dispute as to the validity of the warrant and the information used to obtain it. That is for another argument. However, there is no suggestion of illegal activity in the process of obtaining the warrant to the extent of the activity in Campbell, and that distinction makes all the difference.

[17] While I would not accept the Crown’s suggestion that the reference to legal advice was a “throwaway” comment, I do accept that the references in dispute are part of the narrative required for full, frank and fair disclosure; such is required by the affiant of the information to obtain.

[18] In Mahjoub, Re, 2011 FC 887, [2011] F.C.J. No. 1125, at para. 17, Blanchard J. said: “[t]here is a difference between adducing evidence to describe a particular process which involves legal advice relating to the application of facts to certain legal thresholds and relying on legal advice to justify any legal activity.” I agree and find that this is what occurred here. The narrative set out by D/Cst. Welsh does not amount to a waiver of privilege.

[19] The defence also relies on a reference in D/Cst. Welsh’s affidavit filed by the Crown. There, D/Cst. Welsh said:

Later that day, S/CSt Ryder emailed me and asked me to send a copy of the warrant for the QX60. I emailed him back and said:

Hi Mike…no search warrant…we bought that car so we could do what we want to it. Because you weren’t sure how you were going to do the exam we had a hard time trying to articulate that in a general warrant and the way to get around it was for us to buy it outright.

[20] The defence submits that this email continues the Crown’s submission that the police acted in good faith, and, apparently, on legal advice as redacted. However, the advice, whatever it may have been, has been redacted. Accordingly, since there is no evidence of what that advice might be, there is no evidence to support an argument by the Crown that it is evidence of good faith. The Crown has withdrawn that argument in any event.

[21] Given the Crown’s position that obtaining legal advice is not part of its good faith argument, this evidence is not sufficiently material to support setting aside their clear claim of privilege: see R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445.

[22] The defence submits that, without the blacked out information, I cannot assess the credibility or reliability of the officer’s evidence. I do not agree. The Crown has conceded that the defence can cross-examine D/Cst. Welsh. I am confident that cross-examination will allow the defence an opportunity to test the evidence of the officer, without my setting aside the claim of privilege.

[23] The defence submits that, as the Crown is still relying on a good faith argument, I cannot excise this item from the rest of the analysis. Again, I do not agree. This is unlike Campbell, where the credibility of a significant good faith argument was substantially supported or denied by the legal advice. Here, this reference to legal advice is, perhaps, one example of good faith efforts upon which the Crown seeks to argue. As a result of the Crown’s concession, this example is no longer to be relied upon, nor is it to be used to support the ITO and the resulting warrant. In my view, this is a very specific example that can be easily excised.

Result

[24] Accordingly, I do not find a waiver of the police solicitor-client privilege. The defence request for further disclosure as a result of any such waiver is dismissed.

“Justice Lemon” Lemon J.

Released: April 18, 2019