COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ward, 2016 ONCA 568

DATE: 20160715

DOCKET: M46586 (C55519)

Rouleau, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Ward

Appellant

Brian Gover and Pam Hrick, for the moving party, Donald H. Crawford, Q.C.

Timothy Breen, for the appellant/responding party, Ronald Ward

Howard Leibovich, for the respondent, Her Majesty the Queen

Heard: July 6, 2016

Pardu J.A.:

[1] The moving party, formerly trial counsel for the appellant, moves for the return of a document inadvertently sent by his own counsel to the appellant’s appeal counsel in the context of an allegation that the moving party provided ineffective assistance at trial. The moving party submits that the document is privileged, and that its inadvertent disclosure did not constitute a waiver of solicitor-client privilege.

[2] The appellant argues the moving party has not established that the document is protected by solicitor-client privilege. In the alternative, he submits that a balancing of the interests of the appellant and the moving party favours abrogation of solicitor-client privilege because the contents of the document could be relevant to the moving party’s credibility, in the event that a claim of ineffective assistance of trial counsel is pursued.

[3] The Crown agrees with the moving party that the document is privileged and should be returned.

Facts

[4] The motion proceeded on the basis of an agreed statement of facts.

[5] In September 2011, a jury convicted the appellant of second degree murder. The moving party was his trial counsel (“trial counsel”). In 2012, at the request of the appellant’s appeal counsel, trial counsel provided some of his file materials to appeal counsel.

[6] On January 23, 2014, appeal counsel advised trial counsel that he had concerns about the conduct of the defence at trial and requested specified additional material in order to assess whether to raise a claim of ineffective assistance of counsel at trial as a ground of appeal.

[7] Appeal counsel referred in his letter to paragraphs 5 and 6 of this court’s Procedural Protocol Re Allegations of Incompetence of Trial Counsel in Criminal Cases (“the Protocol”),which provide:

5. Transfer of Trial File to Appeal Counsel: Trial counsel shall (a) upon receipt of a written request by appeal counsel and a written direction of the appellant; or (b) upon receipt of any public document that contains an allegation of professional incompetence by trial counsel in his or her representation of the appellant, or an allegation that the conduct of trial counsel otherwise contributed to a miscarriage of justice, whichever event is earlier, forthwith transfer the entire file to appeal counsel. In the event that trial counsel wishes to raise any objection to so transferring the file, trial counsel may bring an application, as soon as possible, before the case management Judge.

6. Access to the Trial File by Trial Counsel: If trial counsel wants to keep a copy of all, or any portion, of the trial file before transferring this file to appeal counsel, trial counsel may (at his or her own expense) make copies of whatever documents he or she wishes from the file. In addition, if trial counsel wants access to the file in connection with the appellant's case after it has been transferred to appeal counsel, appeal counsel must facilitate this access to the entirety of that file in a timely way, and must permit trial counsel to make copies (at his or her own expense) of whatever documents he or she wishes from the file.

[8] On February 11, 2014, trial counsel responded, asking for particulars of the ineffective assistance allegation, referring to paragraphs 3 and 4 of the Protocol:

3. Obligation to Investigate-Fair Opportunity to Respond: Before any appeal counsel draws any final conclusion as to whether or not to make an allegation, on appeal, that trial counsel performed in a manner that amounted to professional incompetence, or otherwise contributed to a miscarriage of justice: (a) Appeal counsel should satisfy him or herself, by means of personal investigations or inquiries, that there is some factual foundation for this allegation apart from the instructions of the appellant. See: R. v. Elliott (1975), 1975 1501 (ON CA), 28 C.C.C. (2d) 546 (Ont. C.A.) at p. 549. Appeal counsel should make these investigations or inquiries as soon as possible. (b) Appeal counsel should also provide trial counsel with informal notice of the general nature of the potential allegations concerning the professional performance of trial counsel, and should give trial counsel a reasonable opportunity to respond to those potential allegations. In this way, trial counsel will have a fair opportunity to respond to the potential allegations before they are made in any public forum.

4. Notice of Allegations to Trial Counsel: Whenever appeal counsel decides to publicly assert by means of filing with the Court some public document such as a Notice of Appeal or Supplementary Notice of Appeal or Appellant's Factum that contains an assertion that trial counsel performed in a manner that amounted to professional incompetence or otherwise contributed to a miscarriage of justice, appeal counsel must first provide trial counsel with a copy of that document, and any other subsequent document that contains any further details of that assertion. In this way trial counsel will be fully apprised, in a timely way, of all of the allegations being made with respect to his or her professional performance in his or her representation of the appellant at trial.

[9] Trial counsel indicated that he would be unable to instruct his own counsel and determine his own course of action without knowing the allegations against him.

[10] On February 12, 2014, appeal counsel responded that no allegation of ineffective assistance had yet been made, but that examination of the requested material would assist in determining whether to raise that issue.

[11] On February 13, 2014, trial counsel again wrote to appeal counsel to ask for specifics of the concerns about the conduct of the defence, and indicated he would then be able to consider the request for further trial materials.

[12] On March 14, 2014, appeal counsel sent trial counsel a direction signed by the appellant authorizing release of the trial file.

[13] On April 9, 2014, trial counsel responded that he was organizing the trial file and again requested particulars of the ineffective assistance allegation.

[14] On May 2, 2014, a case management judge of this court directed trial counsel to turn over his file to appeal counsel by May 15, 2014. On May 5, 2014, appeal counsel forwarded to trial counsel a copy of this direction.

[15] On May 6, 2014, trial counsel provided the remaining contents of his file to appeal counsel, noting that despite several requests, he still had no particulars of the grounds for the allegation of ineffective assistance.

[16] On or around May 12, 2014, trial counsel retained Anil Kapoor and Lindsay Daviau of Kapoor Barristers to represent his interests in relation to the allegation of ineffective assistance and to assist in proceeding in accordance with this court’s Protocol.

[17] On May 14, 2014, Mr. Kapoor advised appeal counsel that he had been retained by trial counsel and asked that all further communications be sent to him.

[18] On May 14, 2014, appeal counsel advised Mr. Kapoor by letter that he had reviewed the materials he had received from trial counsel. He asked that trial counsel produce all materials that would reflect trial counsel’s review of the brief and preparation for trial. He further asked that if such documentation did not exist, trial counsel provide a letter describing what work was done in preparation for trial and an explanation for the absence of any notes. This was the first occasion on which appeal counsel requested from trial counsel information beyond documentation that was created contemporaneous to the trial proceedings.

[19] On May 22, 2014, Ms. Daviau sent trial counsel a copy of appeal counsel’s May 14, 2014 letter by fax.

[20] On May 28, 2014, trial counsel responded with a letter to Mr. Kapoor. It is this letter (the “Letter”) that is now the subject of the solicitor-client privilege dispute.

[21] On June 4, 2014, the Letter was inadvertently included in a package Ms. Daviau sent to appeal counsel that contained further materials from trial counsel’s file, provided pursuant to the Protocol.

[22] On July 21, 2014, appeal counsel advised Mr. Kapoor for the first time of his specific concerns regarding trial counsel’s conduct, including that he did not object to the admission of two witnesses’ evidence concerning the appellant’s pre-offence conduct. Appeal counsel claimed that evidence strongly suggested the appellant was involved in drug trafficking.

[23] On August 7, 2014, Ms. Daviau provided trial counsel’s responses to the questions appeal counsel raised in his July 21, 2014 letter. Among other things, Ms. Daviau conveyed that trial counsel had made a tactical decision not to object to the evidence of the two witnesses concerning the appellant’s pre-offence conduct, and that there was no evidence before the jury that the appellant was trafficking in drugs or at all involved in the drug subculture.

[24] On June 10, 2015, trial counsel swore an affidavit in order to respond to the allegation of ineffective assistance. In the affidavit, he swore, among other things, that there was no evidence before the jury that the appellant was trafficking in drugs or at all involved in the drug subculture.

[25] On November 25, 2015, appeal counsel phoned Ms. Daviau as she was preparing trial counsel for his cross-examination on his affidavit the next day. Appeal counsel informed Ms. Daviau that he had come across the Letter in the materials Ms. Daviau provided on June 4, 2014. She immediately asserted solicitor-client privilege over the Letter.

[26] On November 26, 2015, and pursuant to paragraph 15 of the Protocol, appeal counsel cross-examined trial counsel on his affidavit sworn June 10, 2015. Trial counsel asserted privilege over the Letter. Appeal counsel did not rely upon the Letter in his cross-examination of trial counsel, as he had agreed not to do so until the privilege issue was resolved.

[27] In a letter dated November 26, 2015, Mr. Kapoor stated that he and Ms. Daviau had each advised the prior day that the Letter was inadvertently disclosed, that the inadvertent disclosure did not constitute a waiver of solicitor-client privilege, and that trial counsel asserted his privilege over the Letter. Mr. Kapoor asked that all copies be returned to his office by November 30, 2015. Failing this, Mr. Kapoor advised that he would bring an application to a panel of this court, seeking an order that the Letter be returned.

[28] On November 30, 2015, appeal counsel expressed his view that the Letter was not covered by solicitor-client privilege, as there was no expectation that the information contained therein would remain confidential. Alternatively, assuming the Letter was privileged and disclosed through inadvertence, he took the position that the determination of the admissibility of the Letter required an exercise of judicial discretion. Appeal counsel advised that he believed the best course of action would be to schedule an application before a panel of this court to determine the claim of privilege.

[29] While appeal counsel had forwarded a copy of the Letter to the Crown lawyer responding to the appellant’s murder appeal, Crown counsel returned his copy to Ms. Daviau. There is no evidence that any other copy of the Letter was disclosed to anyone outside the solicitor-client relationship between trial counsel and his counsel.

Analysis

[30] I conclude that the Letter is protected by solicitor-client privilege, that its inadvertent disclosure did not amount to trial counsel’s waiver of privilege, and that privilege should not be set aside in this case.

[31] Communications between a lawyer and his or her client are privileged where they involve the giving or seeking of legal advice and where the parties intend them to be confidential: Solosky v. The Queen, 1979 9 (SCC), [1980] 1 S.C.R. 821, at p. 837. The client, not the lawyer, holds the privilege and only he or she can waive it: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 37.

[32] Where solicitor-client privilege has not been waived, the court may also consider whether privilege should yield in order to allow an accused to make full answer and defence: R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, at paras. 5, 28, 45. However, solicitor-client privilege is almost absolute, and may be set aside only in very rare circumstances: McClure, at paras. 5, 35. As the Supreme Court stated in McClure, at para. 35: “[S]olicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.”

[33] Here, the content of the letter and the context make it clear that trial counsel sent the letter to his own counsel in the course of seeking advice about how to respond to appeal counsel’s requests and how to comply with this court’s Protocol. I infer from this same content and context that trial counsel intended the communication to be confidential. Trial counsel is no less entitled to the benefit of solicitor-client privilege because he was attempting to comply with the Protocol.

[34] The appellant concedes that the disclosure to appeal counsel was inadvertent, and that trial counsel did not waive solicitor-client privilege. This was an appropriate concession.

[35] Inadvertent disclosure does not necessarily mean that privilege has been waived. While waiver of solicitor-client privilege can be express or implied, whether privilege has been waived by inadvertent disclosure is a fact-specific inquiry, which may include consideration of the following factors:

• The way in which the documents came to be released;
• Whether there was a prompt attempt to retrieve the documents after the disclosure was discovered;
• The timing of the discovery of the disclosure;
• The timing of the application;
• The number and nature of the third parties who have become aware of the documents;
• Whether maintenance of the privilege will create an actual or perceived unfairness to the opposing party; and
• The impact on the fairness, both actual or perceived, of the processes of the court.

See Airst v. Airst (1998), 1998 14647 (ON SC), 37 O.R. (3d) 654 (C.J. (Gen. Div.)), at pp. 659-60; and Chapelstone Developments Inc. v. Canada, 2005 NBCA 96, 191 C.C.C. (3d) 152, at para. 55, leave to appeal to SCC refused, [2005] S.C.C.A. No. 38.

[36] Having considered the above factors, I conclude that solicitor-client privilege was not waived in this case.

[37] Nor should it be set aside. In McClure, the Supreme Court held that solicitor-client privilege may only be set aside very rarely, “where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction”: para. 47. Under the innocence at stake test, the accused must first establish that the information sought from the solicitor-client communication is not available from any other source and that he or she is unable to raise a reasonable doubt as to guilt in any other way. If that threshold question is satisfied, the court will then consider whether there is an evidentiary basis upon which to conclude that a communication exists that could raise a reasonable doubt as to the accused’s guilt, and if so, whether the communication is likely to raise a reasonable doubt. See McClure, at paras. 46-51; and Brown, at paras. 4, 29.

[38] There is no basis to abrogate the solicitor-client privilege here. Innocence is not at stake. The contents of the Letter are marginally relevant to the ineffective assistance of counsel claim, if pursued. The panel ultimately hearing the appeal will be able to come to its own opinion as to possible inferences a jury could have drawn from the evidence led at trial.

Disposition

[39] I would accordingly grant the relief sought by the moving party – namely, an order:

• Declaring that the Letter is protected by solicitor-client privilege;
• Prohibiting the Letter or its contents from being used in any way in the appellant’s appeal; and
• Requiring appeal counsel to return his copy of the Letter to the moving party immediately.

[40] This is not a case for costs, given that the issue arose as a result of the moving party’s own counsel’s error.

Released: (E.E.G.) July 15, 2016

“G. Pardu J.A.”

“I agree Paul Rouleau J.A.”

“I agree C.W. Hourigan J.A.”