Court File and Parties

Court of Appeal for Ontario Date: 20211015 Docket: M52769 (C65661)

Before: Fairburn A.C.J.O., Doherty and Watt JJ.A.

Between: Her Majesty the Queen Respondent (Applicant/Moving Party)

And: Haldane Smithen-Davis Appellant (Responding Party)

Counsel: Michael Dunn and Samuel Greene, for the moving party David Butt, Amicus Curiae May Sengupta-Murray on behalf of Alan D. Gold, for Haldane Smithen-Davis

Heard and released orally: October 8, 2021

Reasons for Decision

[1] On a motion for directions, the Crown seeks an order:

i. declaring that Jason Hamilton has waived his privilege over communications with his trial counsel regarding issues relevant to an application by Haldane Smithen-Davis to reopen his appeal;

ii. directing Jason Hamilton to answer questions in cross-examination on issues on which he has waived his privilege; and

iii. in the alternative, an order declaring Jason Hamilton’s affidavit inadmissible on the reopening application.

The Background

[2] The circumstances in which the motion arises fall within a narrow compass.

[3] Jason Hamilton and Haldane Smithen-Davis were convicted of a home invasion in which another participant was killed. The evidence at their trial consisted principally of an Agreed Statement of Facts. Both were represented by experienced counsel. Both appealed. Both appeals were dismissed.

[4] Subsequently, Mr. Smithen-Davis has applied to reopen his appeal. In support of his application, he relies on his own affidavit and that of Jason Hamilton. Reduced to their essence, these affidavits assert that Mr. Smithen-Davis did not participate in the offence of which both he and Jason Hamilton were convicted.

[5] In their affidavits, both claim that, on the morning of trial, they signed off on an Agreed Statement of Fact drafted by their counsel. Each denies having reviewed the Agreed Statement of Fact in any meaningful way before they signed it.

[6] In his affidavit, Jason Hamilton swears that:

i. the Agreed Statement of Fact is not true;

ii. he never told his trial counsel that he was present at, but did not participate in, the home invasion; and

iii. he never told his trial counsel that Mr. Smithen-Davis was not present when the home invasion occurred.

[7] Mr. Smithen-Davis has signed a waiver of solicitor-client privilege in connection with his communications with his trial counsel. Mr. Hamilton declined the Crown’s request that he execute an equivalent waiver. Amicus was appointed to provide him with advice about responding to the Crown’s request. He remains steadfast in his refusal.

The Motion

[8] On this motion for directions, the Crown says that three reasons compel the conclusion that Jason Hamilton has waived solicitor-client privilege over communications with his trial counsel on the creation and accuracy of the Agreed Statement of Fact:

i. by partially and selectively disclosing his communications with trial counsel in his affidavit;

ii. by relying on his partial recitation of his communications with trial counsel to explain his course of action, including the timing and content of his disclosures; and

iii. by refusing to provide a signed waiver of privilege thus insulating his evidence from effective challenge.

[9] In these circumstances we are satisfied that fairness dictates that Mr. Hamilton has waived his solicitor-client privilege with respect to communications about:

i. the accuracy of the Agreed Statement of Fact; and

ii. how the Agreed Statement of Fact came about.

See: VIII, Wigmore on Evidence, (McNaughton Rev), at pgs. 635-636; Sopinka, Lederman, & Bryant The Law of Evidence in Canada (5th ed), at para. 14.128.

The Disposition

[10] An order will issue in the terms I have set out. The cross-examination shall be conducted before a judge or commissioner appointed for that purpose. Further proceedings shall be case managed by a judge of this Court.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“David Watt J.A.”