R. v. Wijesinha, [1995] 3 S.C.R. 422
Walter Kingsley Kirti Wijesinha Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Wijesinha
File No.: 24015.
Hearing and judgment: May 31, 1995.
Reasons delivered: September 21, 1995.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Obstruction of justice ‑‑ Law Society investigation ‑‑ False declarations made on behalf of and at behest of person under investigation ‑‑ Whether or not obstruction of justice ‑‑ Whether or not term "course of justice" includes investigations ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 118, 139(1), (2), (3).
Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility ‑‑ Bringing administration of justice into disrepute ‑‑ Infringement of right against unreasonable search and seizure ‑‑ Tapes of conversations made without warrant but with consent of one of the parties pursuant to current legal advice conceded to infringe s. 8 right to freedom from unreasonable search and seizure ‑‑ Whether or not admission of tapes would bring administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 8.
Trial ‑‑ Privilege ‑‑ Solicitor‑client privilege ‑‑ Privilege claimed in false affidavits made in response to Law Society investigation ‑‑ Affidavits prepared to further criminal purpose of obstructing justice ‑‑ Whether or not privilege attaching to documents.
Appellant, a lawyer, offered to pay a police officer a referral fee for every client retained after failing a breathalyzer test. The constable reported the appellant's proposition to his superiors. A police investigation confirmed, by conversations intercepted through the use of a body pack, that three persons referred had been retained and that another officer was involved in the scheme. The police were given legal advice that this type of interception was constitutionally valid and that no criminal offence was being committed as long as witnesses were not being subverted. The police investigators called the Law Society Discipline Committee for advice, and although the police did not pursue their investigation of the appellant, they continued to communicate with and supply information to the Law Society.
The Law Society commenced its own investigation. It advised the appellant of the nature of his alleged misconduct, gave him details of the evidence and invited him to respond. The officer involved in the scheme and the three referral clients complied with appellant's request that they sign statutory declarations prepared by him. The statutory declarations sworn by the three clients denied being directed to the appellant by a police officer. The one sworn by the officer stated that the appellant had never paid or offered to pay him any money for referring potential clients to him. At trial, the three clients and the officer involved in the scheme testified that these portions of the statutory declarations were false. The declarations, as well, were sworn by a commissioner whose commission or authority did not extend to the declarations sworn here.
The appellant was charged with professional misconduct pursuant to the provisions of the Law Society Act. The police resumed their investigation of the appellant and learned that the Law Society believed that the statutory declarations which the appellant had submitted to it were false, and charged him with four counts of attempting to obstruct justice (s. 139 of the Criminal Code).
At trial, the wiretap evidence, the statutory declarations and viva voce evidence pertaining to them, were admitted notwithstanding appellant's challenges. The appellant was convicted and the conviction was unanimously upheld in the Court of Appeal. At issue here was whether the term "course of justice" in s. 139 includes investigations and the scope of that term. Also at issue was whether the tapes of the intercepted conversations were properly admissible, whether the solemn declarations were defective, and if found defective, whether they should have been excluded because of solicitor‑client privilege and because to admit them would bring the administration of justice into disrepute contrary to s. 24(2) of the Charter.
Held: The appeal should be dismissed.
The term "course of justice" in s. 139(2) of the Code includes investigations. Section 139 and s. 118, which defines judicial proceeding, should be read together. The definition of judicial proceeding in s. 118 accordingly applies to all three subsections of s. 139 and the phrase "course of justice" in s. 139(2) is therefore not limited to existing or proposed judicial proceedings. A serious perversion of justice can occur just as readily in the work of administrative tribunals or disciplinary bodies. An attempt to mislead an investigation into facts which could give rise to a disciplinary hearing constitutes an attempt to pervert the course of justice. The commencement of proceedings invoking a tribunal's jurisdiction to enforce rights and liabilities may set in train a relevant "course of justice".
The Law Society's disciplinary proceedings comes within ss. 118(d) (the person presiding can administer oaths and compel evidence) and (e) (a legal right or a legal liability may be established by the tribunal). An investigation is an essential first step in any judicial or quasi‑judicial proceeding and may result in prosecution. To mislead knowingly during the first step of the investigation perverts the course of justice. Here, a conclusion by the Law Society staff that the allegations were unfounded would result in disciplinary proceedings not being commenced. Since a false statement at the stage of the investigation could prevent any proceedings from taking place and thus pervert the course of justice, s. 139(2) must encompass investigatory proceedings. Section 139(2) may be applicable to a body created by statute and required to judge and in doing so to act in a judicial manner.
The admission of the tapes of intercepted conversations, even though the interceptions violated the appellant's s. 8 Charter right to be free from unreasonable search, did not bring the administration of justice into disrepute contrary to s. 24(2) of the Charter. The Charter breach was not serious. The fairness of the trial was not affected. The appellant was not conscripted into incriminating himself in these conversations and would have sought out and spoken to officer wearing the body pack to solicit clients. Both the police and the Law Society acted in good faith with no trickery or activity as an agent provocateur. The police acted in conformity with what they very reasonably believed to be the law as it existed at the time. The situation of a police officer acting in breach of the police code of professional conduct and of other officers were being approached in the same manner was serious. Indeed, it would have reflected adversely upon the administration of justice if the evidence had not been admitted.
The actus reus of obstructing justice was committed even if the impugned affidavits were defective. The appellant had full control over the signing of the declarations and knowingly had the four declarants sign these statements, which he knew to be false. He also was aware that the "affidavits" were sworn in circumstances beyond the powers of the commissioner for oaths. These documents were put forward with the intent of misleading the Law Society and to argue that they should not be considered because of their allegedly defective form was to use appellant's initial deceit of the Law Society to protect himself.
Whether or not the documents were improperly executed did not need to be decided. For the purposes of s. 139(2) of the Code, what is put forward as an affidavit or solemn declaration should ordinarily be accepted as such. The declarations do not in fact need to be statutory declarations: it is not an essential element of the offence of obstructing justice and does not form part of the actus reus. Even if the documents tendered were improperly executed, the offence would have still been committed, since the appellant knowingly tendered false documents which were purported to have been duly executed.
The documents in question were submitted by a lawyer to the Law Society and were not covered by solicitor‑client privilege. The communication was made because the Law Society was investigating the appellant's practice. The false declarations were intended to deceive the Law Society in its deliberations as to whether or not discipline proceedings should be instituted. Solicitor‑client privilege cannot attach to the declarations in those circumstances. Even if the solicitor‑client privilege attached to the context in which the declarations were made, the documents were prepared and submitted to further the criminal purpose of obstructing justice and any privilege that might have attached to them was certainly removed.
The appellant cannot claim a constitutional remedy pursuant to s. 24(2) based upon the alleged violation of the affiants' Charter rights. This provision provides a remedy only to an individual whose Charter rights have been violated. The affiants' Charter rights, however, were not violated because the declarations were executed with the specific intention of assisting the appellant with regard to the Law Society investigation and with the expectation that the Law Society would act upon them. The documents could not be considered privileged in the circumstances.
Cases Cited
Considered: Kalick v. The King (1920), 1920 CanLII 488 (SCC), 61 S.C.R. 175; R. v. Spezzano (1977), 1977 CanLII 1371 (ON CA), 34 C.C.C. (2d) 87; R. v. Rogerson (1992), 174 C.L.R. 268; R. v. Vreones, [1891] 1 Q.B. 360; referred to: R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Morin (1968), 5 C.R.N.S. 297; R. v. Zeck (1980), 1980 CanLII 2849 (ON CA), 53 C.C.C. (2d) 551; R. v. May (1984), 1984 CanLII 3489 (ON CA), 13 C.C.C. (3d) 257; R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30; Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 118(a) [am. c. 27 (1st Supp.), s. 15(2)], (b), (c) [am. c. 27 (1st Supp.), s. 203(1)], (d), (e), 139(1)(a), (b), (c), (d), (2), (3)(a).
Law Society Act, R.S.O. 1980, c. 233, s. 33(2).
APPEAL from a judgment of the Ontario Court of Appeal (1994), 1994 CanLII 884 (ON CA), 17 O.R. (3d) 583, 88 C.C.C. (3d) 116, 68 O.A.C. 356, dismissing an appeal from conviction by Trainor J. Appeal dismissed.
Morris Manning, Q.C., and Theresa R. Simone, for the appellant.
Paul Lindsay and Robert Kelly, for the respondent.
//Cory J.//
The judgment of the Court was delivered by
1 Cory J. -- It should be noted at the outset that, at the conclusion of the hearing before this Court, this appeal was dismissed with the provision that these reasons would follow. The principal issue raised on this appeal requires an answer to the question what is the scope of the term "the course of justice" which appears in s. 139 of the Criminal Code, R.S.C., 1985, c. C‑46?
Factual Background
2 The appellant was for a number of years a Crown Attorney in the city of Toronto. He left that position and set up his own practice specializing in the defence of persons charged with drinking and driving offences. On December 17, 1991, he was convicted of four counts of attempting to obstruct justice and sentenced to 15 months' imprisonment.
3 The evidence at the trial revealed that on March 23, 1989, the appellant approached Constable Stade, who was a breathalyzer operator, with a proposal. He suggested to Stade that he would pay him $250 for each successful referral of persons who had failed the breathalyzer test. The appellant gave Stade some business cards to give to people he referred to the appellant, and told him to mark the business cards in a particular manner. In that way, the appellant would know that it was Stade who had referred the prospective client. In the course of his conversation with Stade, the appellant stated that Constable Thompson was already referring people to him for the same amount. He suggested that Stade might wish to confirm this with Thompson. Stade told the appellant that he would think about his proposal.
4 Stade disclosed the appellant's proposition to a colleague and reported it to his superiors, who decided that an investigation should be conducted. Stade was instructed to feign agreement with the appellant's proposal. Pursuant to those instructions, Stade met the appellant at the courthouse on March 30 and told him that he would participate in the fee-for-referral scheme. At the police station, Stade signed a form consenting to the interception of his conversations and, while wearing a bodypack, met with Constable Thompson on April 4. In the course of the conversation, Thompson confirmed that he was referring persons to the appellant and was receiving $250 for each person who became a client.
5 When the police investigators obtained this information, they called the Law Society Discipline Committee for advice. The investigators also sought the views of Crown counsel who expressed the opinion that, as long as the appellant was not seeking to have a witness give false evidence, the appellant's fee-for-referral scheme did not amount to a criminal offence.
6 At the invitation of the appellant, Stade went to his home on April 7. He was wearing a bodypack. In the course of their conversation, the appellant confirmed his arrangement with Thompson and instructed Stade as to the manner in which he was to mark his business cards. He told him that the referred persons were to be called "fish". During the same conversation, the appellant told Stade that he was aware of the danger that Stade might be wearing a bodypack and that he would never ask a police officer to change his evidence.
7 After the meeting at the appellant's house, discussions took place between the police investigators, the Law Society and Crown Counsel. As a result of these discussions, Stade was told to go along with the appellant's scheme. In June of 1989, Stade referred four persons to the appellant and gave each of them a business card marked in the manner suggested by the appellant. Three of these persons retained the appellant to defend them.
8 On June 19, Stade phoned the appellant at his office to inquire whether there were any "fishes" yet, to which the appellant replied that there were. The two men agreed to meet at the appellant's home the next evening. Once again Stade wore a bodypack and recorded their conversation. The appellant confirmed that he had been retained by three of the persons and paid Stade $750 in cash, and encouraged him to send more clients. He suggested that Stade could make up to $10,000 per year and wondered if Stade knew of anyone else who might refer prospective clients to him. Although the police did not pursue their investigation of the appellant, they continued to communicate with and supply information to the Law Society. In the fall of 1989, the police provided the Law Society with the evidence which they gathered from their investigation. The Law Society then commenced its own investigation. It advised the appellant of the nature of his alleged misconduct and gave him details of the evidence. The Law Society followed its usual procedure and invited the appellant to respond to the allegations.
9 In preparing his response, the appellant spoke to Constable Thompson as well as to the three clients who had been referred to him by Stade. He asked each of them to sign a statutory declaration which he had prepared. All four complied with his request.
10 The statutory declaration signed by the three clients contained a paragraph stating that:
At no time did any police officer direct or suggest that I retain [the appellant]. At no time did any police officer give me any business cards of [the appellant].
11 The declaration signed by Thompson stated that the appellant had never paid or offered to pay him any money for referring potential clients to him. At trial, the three clients and Thompson testified that these portions of the statutory declarations were false.
12 On January 11, 1990, the Law Society received the four statutory declarations, together with a letter from the appellant responding to the allegations brought against him. The Law Society did not inform the police of the statutory declarations it had received, but continued with its investigation. On March 15, 1990, the appellant was charged with professional misconduct pursuant to the provisions of the Law Society Act, R.S.O. 1980, c. 233. In the fall of that same year, the police received information that the appellant had requested another former client to sign a false affidavit concerning his referral by an officer. As a result of this information, they resumed their investigation of the appellant. The police learned that the Law Society believed that the statutory declarations which the appellant had submitted to it were false. The police obtained copies of the declarations together with the letter from the appellant to the Law Society. The appellant was subsequently charged with four counts of attempting to obstruct justice.
13 At the trial, the appellant challenged the admissibility of the wiretap evidence, the statutory declarations and the viva voce evidence which pertained to them. They were all ruled admissible by the trial judge. The appellant was convicted at trial on the four counts of attempting to obstruct justice. The conviction was unanimously upheld in the Court of Appeal. At the conclusion of the hearing before this Court, the appeal was dismissed with reasons to follow.
Judgments
Ontario Court of Justice, General Division (Trainor J., ruling on voir dire)
14 In his careful reasons delivered at the conclusion of the voir dire, Trainor J. observed that both the police and the Law Society acted in an exemplary manner throughout their investigations. He noted that the police were really involved in two separate investigations. He found that the evidence obtained during the first part of the investigation, running from April 1989 to June of that year, only became relevant as a result of the appellant's conduct in January 1990 when he responded to the Law Society's letter by sending the four statutory declarations to the Society. He concluded that, as is so often the case, the cover‑up was much more serious that the scheme itself.
15 Trainor J. pointed out that the appellant was a very experienced Crown attorney and defence counsel. He concluded that, in light of his experience, the appellant knew that he was acting in a manner contrary to the rules of conduct of his profession. In addition, he knew that Thompson and Stade would, in complying with his request for referrals, be violating police conduct rules. Trainor J. found as well that the appellant knew that his plan could be thwarted if he solicited an honest police officer and he was aware that his conversations could be recorded by devices such as a bodypack. He observed that it was significant that the appellant had sought out the police and that they had followed his plan or, at least in the case of Stade, appeared to do so.
16 Trainor J. decided that although the recorded conversations constituted an unreasonable search and seizure contrary to s. 8 of the Canadian Charter of Rights and Freedoms, the evidence should not be excluded pursuant to s. 24(2) of the Charter. He once again emphasized that the police and the Law Society had acted in good faith throughout, and that the police had reasonable and probable grounds to believe criminal offences had been committed both by the appellant and by those who signed the statutory declarations.
17 Trainor J. turned next to the question of the admissibility of the statutory declarations. He found that they were not subject to solicitor‑client privilege since they failed to meet the first branch of the test set out in R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at p. 284, namely that "[t]he communications must originate in a confidence that they will not be disclosed" (emphasis in original). Further, he determined that the preparing, swearing and submitting of the statutory declarations formed the very actus reus of the crime of wilfully attempting by any means to obstruct the course of justice. As a result, he found that no privilege attached to the documents.
Court of Appeal (1994), 1994 CanLII 884 (ON CA), 17 O.R. (3d) 583
Galligan J.A.
18 Galligan J.A. first considered whether the intercepted conversations were admissible. He noted that it was conceded that the appellant's rights under s. 8 of the Charter had been infringed, and that the issue, therefore, was whether the evidence ought to have been rejected pursuant to s. 24(2). He stated that the factors to be considered were set out in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. He noted as well that in assessing those factors, it was important to assess the impact which the infringement of the Charter would have on the fairness of the trial.
19 Galligan J.A. found that the police were in possession of information that justified their reasonable belief that the appellant was engaged in very serious illegal activities. Those activities had already compromised one officer and would have compromised Stade had he agreed to the scheme. Galligan J.A. also found that Thompson's participation in the scheme constituted an offence against police discipline and that Stade's participation would also have had the same result. He expressed the view that the actions of Constable Thompson were such that he was probably guilty of a criminal breach of trust and that the appellant, by advising him to perform those acts, was a party to Thompson's offence. He determined that the police had taken every reasonable step to obtain legal advice and that, in light of the law as it existed at the time, they had acted reasonably.
20 Galligan J.A. put forward, as a further reason for finding that the interception of the conversation was reasonable, that it was important to demonstrate that Stade had not mistaken the words of the appellant or in any way misinterpreted the statements made to him.
21 He found that at the very least, from the point of view of police conduct, the infringement of the Charter was not a serious one. He concluded that the admission of the intercepted conversations would certainly not bring the administration of justice into disrepute.
22 Galligan J.A. next considered whether an investigation by the Law Society into allegations of professional misconduct of a solicitor came within the meaning of the phrase "the course of justice" set out in s. 139(2) of the Code. He noted that when allegations of misconduct were brought to the attention of the Law Society, the first step was to investigate the situation. If the Law Society staff concluded that the allegations made against a solicitor were unfounded, discipline proceedings would probably not be commenced. He expressed the opinion that the phrase "course of justice" would include an investigation which could lead to proceedings being taken against the person. He was further of the opinion that those "proceedings" should not be restricted to the investigation of true crimes under the Code. He concluded that the phrase would apply to any body which is authorized to act by statute and "which judges". He determined that the Law Society was just such a body and that s. 139(2) of the Code extended to the investigatory stages of potential disciplinary proceedings before the Law Society.
Goodman J.A. (concurring)
23 In his concurring reasons, Goodman J.A. observed at p. 608 that if it had not been conceded that the intercepted conversation constituted a breach of the appellant's rights under s. 8 of the Charter, "a strong argument could be made that no such breach had occurred". However, in light of the concession, he went on to consider whether the admission of the evidence would bring the administration of justice into disrepute. He agreed with Galligan J.A. that the intercepted conversations were properly admitted in evidence. However, he differed from Galligan J.A.'s opinion that the fact that the appellant had anticipated the possibility of his conversation's being recorded could be taken into account in considering whether the communication was a private one. He expressed the view that once it had been determined that the communication was private, then the fact that the originator may have anticipated its recording was not relevant in determining whether it should be admitted or excluded under s. 24(2).
Abella J.A.
24 Abella J.A. agreed with the conclusions reached by Galligan J.A. and generally concurred with the reasons of Goodman J.A.
Analysis
Scope and Application of the Phrase "Course of Justice" Appearing in s. 139(2) of the Criminal Code
25 The prime issue raised in this appeal is whether the phrase "the course of justice", which appears in s. 139(2) of the Code, applies to the investigatory stage of discipline proceedings before the Law Society of Upper Canada. A consideration of the phrase requires answers to two questions. First, does s. 139(2) apply to the investigation stage or just to the formal legal proceedings? Second, does s. 139(2) apply to matters other than criminal and quasi‑criminal offences? It may be helpful at this stage to set out the sections of the Code which describe the offence of obstructing justice and that which defines "judicial proceedings".
Relevant Statutory Provisions
26 The relevant statutory provision are:
Criminal Code, R.S.C., 1985, c. C‑46
- In this Part,
"judicial proceeding" means a proceeding
(a) in or under the authority of a court of justice,
(b) before the Senate or House of Commons or a committee of the Senate or House of Commons, or before a legislative council, legislative assembly or house of assembly or a committee thereof that is authorized by law to administer an oath,
(c) before a court, judge, justice, provincial court judge or coroner,
(d) before an arbitrator or umpire, or a person or body of persons authorized by law to make an inquiry and take evidence therein under oath, or
(e) before a tribunal by which a legal right or legal liability may be established,
whether or not the proceeding is invalid for want of jurisdiction or for any other reason;
- (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,
(a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or
(b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody,
is guilty of
(c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(d) an offence punishable on summary conviction.
(2) Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
(3) Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed,
(a) dissuades or attempts to dissuade a person by threats, bribes or other corrupt means from giving evidence;
Does the "Course of Justice" Include Investigations?
27 The proceedings of a court, or indeed those of most administrative tribunals, will almost invariably commence with an investigation. Investigation is necessary to determine if a crime or wrong has been committed. It is the essential first step in any judicial or quasi‑judicial proceeding which may result in a prosecution. In the ordinary course of events, one who perverts the course of an investigation also perverts the course of justice. For example, there is no question that someone who lies to the police investigating a car accident as to the identity of the driver is by that lie perverting the course of justice. In the same way, there can be no doubt that someone who lies to a safety inspector as to the condition of a work site, thereby concealing its dangers, is, by that lie, perverting the course of justice. It follows that to mislead knowingly during that first step of the investigation just as surely perverts the course of justice as would making a bribe to a witness to change his or her testimony during a trial. The only difference is that, in the first example, the crime is committed at the outset of the proceedings and, in the second example, towards the end.
28 The authorities support the position that the phrase "the course of justice" must include the investigatory stage. In Kalick v. The King (1920), 1920 CanLII 488 (SCC), 61 S.C.R. 175, the accused was convicted of having corruptly interfered with "the administration of justice". He had bribed a police officer to avoid being charged with a violation of the Saskatchewan Temperance Act, S.S. 1917, c. 23. Anglin J. (as he then was) stated at p. 183:
It is quite immaterial whether the police officer actually intended or contemplated instituting a prosecution. It suffices that the appellant gave the bribe with intent to head off such a proceeding. The due administration of justice is interfered with quite as much by improperly preventing the institution of a prosecution as by corruptly burking one already begun.
29 In a concurring opinion, Brodeur J. stated at p. 186:
I am of opinion that the "administration of justice" mentioned in section 157 of the Criminal Code should not be restricted to what takes place after an information has been laid; but it includes the taking of necessary steps to have a person who has committed an offence brought before the proper tribunal, and punished for his offence. It is a very wide term covering the detection, prosecution and punishment of offenders.
30 It is true that the phrase "the administration of justice" is not the same as "the course of justice". Yet, I would have thought that the latter phrase is even broader in meaning than the former. Indeed, the Kalick decision has been cited as an authority in cases where a breach of s. 139(2) has been alleged. See, for example, R. v. Morin (1968), 5 C.R.N.S. 297 (Que. C.A.) at p. 299.
31 Similarly, in R. v. Spezzano (1977), 1977 CanLII 1371 (ON CA), 34 C.C.C. (2d) 87 (Ont. C.A.), the accused gave a false name to the police officer in an attempt to avoid being charged with the offence of driving while disqualified. There, Martin J.A. concluded that the expression "course of justice" in s. 139(2) includes attempts to obstruct, pervert or defeat a prosecution which the accused contemplates may take place. He relied upon the Kalick decision to support his conclusion. The following appears in his reasons at p. 91:
The expression "the course of justice" in s. 127(2) [now s. 139(2)] includes judicial proceedings existed or proposed but is not limited to such proceedings. The offence under s. 127(2) also includes attempts by a person to obstruct, pervert or defeat a prosecution which he contemplates may take place, notwithstanding that no decision to prosecute has been made.
And at p. 93:
. . . there was evidence to support the finding of the trial Judge that the appellant made the false statement to the constable during an investigation by the latter of a suspected offence and that it was made by the appellant to escape prosecution for an offence which the appellant apprehended might ensue. In those circumstances the "course of justice" had commenced.
32 In R. v. Rogerson (1992), 174 C.L.R. 268, the Australian High Court took the next logical step and extended this reasoning to disciplinary tribunals. In that case, Mason C.J. wrote at p. 277:
. . . it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency.
33 In the case at bar, it is clear from the evidence that if, as a result of its investigations, the Law Society staff concluded that the allegations made against a solicitor were unfounded, disciplinary proceedings would not be commenced.
34 In summary, since a false statement at the stage of the investigation may prevent any proceedings from taking place and thus pervert the course of justice, s. 139(2) must encompass investigatory proceedings.
The Scope that should be given to the Phrase "the Course of Justice"
(a) Based Upon the Provisions of the Criminal Code
35 It now remains to be determined whether s. 139(2) should, as a result of the phrase "the course of justice", be applicable to disciplinary proceedings of the Law Society. At the outset, some assistance can be gathered from the wording and positioning of ss. 118 and 139. Both these sections come within Part IV of the Code which is entitled "Offences Against the Administration of Law and Justice".
36 Section 139 describes the acts which will constitute obstructions or perversions of justice. It is significant that s. 139(1) refers to "the course of justice in a judicial proceeding" and sets out two specific means by which the course of justice may be obstructed, perverted or defeated. Subsection 2 is framed in the broadest possible way and refers to "[e]very one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice". Subsection 3 sets out further specific instances of prohibited acts. It provides that "[w]ithout restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed", acts in a manner which comes within the scope of paras. (a), (b) and (c).
37 Clearly, subs. (2) describes an offence which is much wider in its scope and which encompasses many more acts than those described in subss. 1 and 3. In my view, the phrase "the course of justice" must not only refer to the judicial proceedings described in subss. (1) and (3) of s. 139, but must also include the judicial proceedings which are defined in s. 118. Once again, that section provides:
"judicial proceeding" means a proceeding
(a) in or under the authority of a court of justice,
(b) before the Senate or House of Commons or a committee of the Senate or House of Commons, or before a legislative council, legislative assembly or house of assembly or a committee thereof that is authorized by law to administer an oath,
(c) before a court, judge, justice, provincial court judge or coroner,
(d) before an arbitrator or umpire, or person or body of persons authorized by law to make an inquiry and take evidence therein under oath, or
(e) before a tribunal by which a legal right or legal liability may be established,
whether or not the proceeding is invalid for want of jurisdiction or for any other reason. [Emphasis added.]
38 The Court of Appeal was of the opinion that the s. 118 definition of judicial proceeding was of no relevance in considering the scope of the phrase "the course of justice". With the greatest of respect, I cannot agree. Subsections 139(1) and (3) both specifically refer to a judicial proceeding. Subsection (2) is even broader in its terms. It is, then, reasonable and appropriate to take into account the definition section which appears at the very beginning of Part IV of the Code and which pertains to "Offences Against the Administration of Law and Justice". Section 139 and s. 118 should, in my view, be read together, and the definition of judicial proceeding must apply to all three subsections of s. 139. It follows that the phrase "the course of justice", as it appears in s. 139(2), is not limited to existing or proposed judicial proceedings. Rather, it must include all those proceedings that fall within the definition of "judicial proceeding" set out in s. 118.
39 The Law Society's disciplinary proceedings would come within s. 118(d) since the person presiding over a disciplinary hearing (Law Society Act, s. 33(2)) "may administer oaths to witnesses and require them to give evidence under oath". Further, the disciplinary proceedings of the Law Society would clearly come within s. 118(e) as a tribunal by which a legal right or a legal liability may be established. Section 139 should be given a reasonably broad scope and a liberal definition. This was suggested as early as 1920 in Kalick, supra. There it was held that s. 157 (now s. 120) of the Code encompassed both criminal offences and quasi‑criminal provincial offences. Duff J. (as he then was) wrote at p. 182:
. . . [The appellant] argues that the application of the section is limited to offenders or persons supposed to be or suspected of being or fearing that they are offending against the criminal law strictly so called, that is to say, against the criminal law as falling within the exclusive jurisdiction of the Parliament of Canada. While the word "crime" in the Criminal Code generally speaking applies only to crimes strictly so called and probably has that restricted meaning in this section, I think there is nothing requiring us to limit the meaning of the words administration of justice in the way suggested. [Emphasis added.]
40 Similarly, the Ontario Court of Appeal, in R. v. Zeck (1980), 1980 CanLII 2849 (ON CA), 53 C.C.C. (2d) 551 (Ont. C.A.), found that s. 139(2) was applicable to proceedings arising from the infraction of a municipal parking by‑law. In R. v. May (1984), 1984 CanLII 3489 (ON CA), 13 C.C.C. (3d) 257 (Ont. C.A.), it was held that the section was applicable to the Ontario Highway Traffic Act provisions pertaining to the issuing of traffic tickets.
(b)Cases Which Have Considered the Scope of the Common Law Offence of Obstructing Justice
41 There are no Canadian cases dealing with the applicability of s. 139 to proceedings held before disciplinary tribunals. However, cases from England and Australia which have dealt with the common law offence of perverting the course of justice have indicated that the phrase applies to proceedings of arbitration boards established by statute and to professional disciplinary committees.
42 R. v. Vreones, [1891] 1 Q.B. 360, dealt with the falsification of evidence to be given before an arbitrator. The accused in that case was a party to a contract for shipping wheat which provided that any disputes arising from the contract would be settled through arbitration. The contract also provided that samples of wheat were to be taken upon delivery to verify the product's quality. Samples were duly taken, but the accused falsified them to make it appear that the bulk of the cargo was of better quality than it really was. Although no dispute arose before the arbitration board, the accused was still charged with an attempt to pervert the course of justice.
43 Pollock B. found that the actions of the accused had indeed constituted an attempt to pervert the course of justice even though the dispute arose from the provisions of a private contract. At page 369 he wrote:
The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice. The question is, whether the sending of these adulterated samples, which by previous arrangement were to be sent to the association in London to be used by the arbitrators, is such an act as I have described. I think that it was. I think that the arbitrators are to be considered as a tribunal administering public justice. Such a tribunal is one specially sanctioned by Courts of law, and its decisions are enforced and carried out by the Courts of law. I am of opinion that by tampering with the evidence which was to be laid before that tribunal the defendant was interfering with the course of justice.
44 Further, in Rogerson, supra, the High Court of Australia held that an attempt to mislead an investigation into facts which could give rise to a police disciplinary hearing constituted an attempt to pervert the course of justice. At page 276, relying upon Vreones, supra, Mason C.J. held:
. . . the course of justice is not confined to justice as it is administered by the orthodox court system. In Vreones, the offence consisted in the accused adulterating samples to be used by arbitrators who were "to be considered as a tribunal administering public justice", to quote once again the words of Pollock B. The course of justice relevantly includes the proceedings of judicial tribunals, that is, tribunals having authority to determine the rights and obligations of parties and having a duty to act judicially.
Brennan and Toohey JJ. concurred with Mason C.J. who wrote at p. 283:
Neither the police nor other investigative agencies administer justice in any relevant sense. However, it is their function to bring or to assist in bringing prosecutions as part of their duty to enforce the law and, sometimes, to institute proceedings of a disciplinary nature before an appropriate tribunal under an applicable disciplinary code. A tribunal whose jurisdiction extends to the enforcing or adjusting of rights and liabilities in accordance with law and whose procedure is judicial in character is engaged, when exercising that jurisdiction, in administering justice so that the commencement of proceedings invoking that jurisdiction may set in train a relevant course of justice. The offence of perverting or attempting to pervert the course of justice may be committed with respect to such proceedings before a tribunal as well as with respect to proceedings before a court.
45 I find the reasoning expressed in Rogerson, to be attractive and convincing.
46 It is apparent that s. 139(2) applies to those investigations carried out with a view to determining whether or not disciplinary proceedings should be taken by the Law Society. That finding is sufficient for the purposes of this case. Yet, the Court of Appeal carefully considered what the scope of the section should be and suggested a rule that a decision-making body would come within the phrase "the course of justice" if it was: (1) "a body which judges"; and (2) "[i]ts authority to do so [was] derived from a statute" (pp. 602-3). To this I would add that the decision making body must, by the terms of its empowering statute, be required to act in a judicial manner. It must for example, be required to investigate and to institute proceedings to enforce statutory standards of conduct, or of products or of discipline.
47 The Legislature or Parliament granting such powers to a body will have considered that it would act judicially and that decision must be recognized by the courts. Further in exercising such significant powers the body must act judicially or it would deny natural justice to the parties appearing before it with all the consequences that would entail.
48 In Rogerson, supra, Mason C.J. wisely observed that the course of justice is not confined to justice as it is administered by the orthodox court system. His words recognize the realities of today's society. The rule proposed by the Court of Appeal combined with the suggested additions accepts that reality and provides a reasonable basis for approaching situations such as the investigation of breaches of regulations or codes of conduct or of discipline which are routinely entrusted to administrative boards or statutorily authorized disciplinary tribunals.
49 There may be some reluctance on the part of the courts to recognize that a serious perversion of justice can occur just as readily in the work of administrative tribunals or disciplinary bodies as it can in the proceedings of the courts. Yet, I think this is the situation that exists in our contemporary society. It cannot be forgotten that so much of the conduct of people's affairs today is no longer controlled by the courts but by statutory tribunals. The courts simply cannot cope with the vast multitude of problems requiring investigation, regulation and enforcement to protect the health and safety of Canadians. That role has of necessity been undertaken by statutorily empowered administrative tribunals or discipline panels.
50 Society must for its safety and health be concerned with so many aspects of daily life. Whether it is the safety of the workplace or public buildings, the purity of food or water, the cleanliness of restaurants or hotels, the failure to maintain the statutory standards may have disastrous results for society. Therefore, the various statutorily authorized boards must investigate, inspect and commence appropriate proceedings if those minimum standards are not maintained, or if regulations are breached. It seems to me that the course of justice can be perverted if, for example, the investigations of those responsible for maintaining the purity of water are knowingly misled just as surely as it would be if a police officer were bribed to change his or her evidence in court.
51 The perversion of justice can occur in a myriad of cases where a tribunal or entity is created by statute to judge rights and obligations. A random perusal of some Ontario Statutes bears this out. For example, the Meat Inspection Act (Ontario), R.S.O. 1990, c. M.5, provides that no person shall slaughter an animal, sell, transport or deliver meat, or engage in the business of producing, processing or handling meat except as provided by the regulations. A licence must be obtained from the Director, and the Director, in turn, when assessing whether a licence should be issued, renewed, suspended or revoked, will hold a hearing. The Act also provides that an inspector may be appointed who may enter any building other than a dwelling house to inspect the animals and meat contained within them. The Act further provides that no person shall hinder or obstruct the Director or an inspector in the course of their duties. Finally, a person who contravenes any of the provisions of the Act is guilty of an offence and liable on conviction to a fine or to imprisonment.
52 It is important that the slaughtering of animals and sale of meats be carried on in a sanitary manner. The health of society depends upon it. It follows that one who sought to pervert the course of justice by giving false information to an inspector or Director should come within the purview of s. 139(2). Similar provisions appear in the Motor Vehicle Dealers Act, R.S.O. 1990, c. M.42. Once again, if society is to be protected from unscrupulous dealers selling dangerous vehicles, s. 139(2) must apply to that Act.
Admissibility of the tapes
53 The respondent conceded that the interception of the conversations between Stade and the appellant violated the appellant's right to be free from unreasonable search by virtue of s. 8 of the Charter. Therefore, it must be determined whether the admission of the tapes would bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter.
54 The Court of Appeal correctly stated that the three primary considerations which must guide any analysis as to whether evidence should be excluded under s. 24(2) have been set out in Collins, supra, at pp. 284‑88. They are:
1.Does the admission of the evidence affect the fairness of the trial?
2.How serious was the Charter breach?
3.What would be the effect of excluding the evidence on the repute of the administration of justice?
55 On the first question, it seems readily apparent that the admission of the evidence did not affect the fairness of the trial. The appellant could not by any stretch of the imagination be said to have been conscripted into incriminating himself in these conversations. Rather, he would in any event have sought out and spoken to Stade to solicit clients on his behalf.
56 On the question of the gravity of the Charter breach, it must be remembered that it was found both at trial and in the Court of Appeal that both the police and the Law Society acted in good faith. There was no trickery or activity as an agent provocateur on the part of the police. Rather the appellant invited the police officer into his home and spontaneously and voluntarily discussed the fee‑for‑referral scheme. The conversations were intercepted some months before the decision of this Court in R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, was released, at a time when the Ontario Court of Appeal had determined that such taping did not contravene the Charter. The police sought legal advice on the matter and acted upon that advice in recording the conversation. The police acted in conformity with what they very reasonably believed to be the law as it existed at the time. Further, the situation presented to the investigating officer was serious. Thompson, one of their officers, had been persuaded to breach the police code of professional conduct and other officers were being approached in the same manner. Finally, the appellant was not conscripted by the police to provide evidence against himself.
57 Indeed, in the circumstances of this case, it would have reflected adversely upon the administration of justice if the evidence had not been admitted. In passing, I would add that I am in agreement with Goodman J.A. that once it has been determined that the communication was private, the fact that the originator may have anticipated that it might be recorded is not relevant in deciding whether it should be admitted or excluded under s. 24(2) of the Charter.
Solemn Declaration
58 The appellant submitted that there were no solemn declarations given "under oath" as specified in the indictment and that, accordingly, the actus reus of obstructing justice had not been committed. The appellant submits that the four impugned affidavits, which were sworn by Ms. M. Matsuoka, were not in fact or in law solemn declarations because:
(i)there was no evidence that Ms. Matsuoka asked the affiants, as required by s. 41 of the Canada Evidence Act, whether the facts declared were made "conscientiously believing it to be true, and knowing it is of the same force and effect as if made under oath";
(ii)Ms. Matsuoka was limited to taking affidavits and commissioning solemn declarations only while in the employ of Wilmer H. Reid, Q.C., and only for matters connected with his office; and
(iii)there was no statutory requirement that solemn declarations be made in these circumstances.
59 The Court of Appeal did not consider this ground of appeal to have sufficient merit to warrant comment in its reasons. I agree that this ground of appeal is devoid of merit.
60 The appellant knowingly had the four declarants sign false statements. He referred to the statements in his letter to the Law Society as "affidavits". He asked Ms. Matsuoka to act as the commissioner for oaths, knowing that her commission was limited so as to exclude the circumstances presented in this case. The declarations all contained a statement that they were made "conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath".
61 The appellant had full control over the signing of the declarations. He knew them to be false, and put them forward with the intent of misleading the Law Society. He knew that Ms. Matsuoka's commission was limited. Despite all this, the appellant argues that these declarations cannot be considered because they do not meet the formalities for statutory declarations. He is attempting to use his initial deceit of the Law Society to protect himself. This, particularly from an experienced lawyer, is completely unacceptable.
62 It is not necessary to decide whether the documents tendered in the case at bar were improperly executed. It is sufficient to note that for the purposes of s. 139(2) of the Code, what is put forward as an affidavit or solemn declaration should ordinarily be accepted as such. The respondent has correctly observed that it is not an essential element of the offence of obstructing justice that the declarations be in fact statutory declarations. It is not part of the actus reus of the offence. Thus, even if the documents tendered in the case at bar were improperly executed, the offence would have still been committed, since the appellant knowingly tendered false documents which were purported to have been duly executed. This is the essence of the offence described in s. 139(2). Therefore, this ground of appeal must fail.
Exclusion of the Statutory Declarations
63 The appellant contended that documents submitted by a lawyer to the Law Society are covered by solicitor‑client privilege and consequently they cannot be forwarded to a third party in the absence of consent from either the lawyer who originally submitted them or the person who signed them. This ground of appeal was fully argued before the Court of Appeal which indicated that the issue was devoid of merit. I agree that this submission must fail.
64 In Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, the conditions precedent to the existence of a privilege of confidentiality were reviewed. The limits of privilege were described in the following terms at p. 873:
There are exceptions. It is not sufficient to speak to a lawyer or one of his associates for everything to become confidential from that point on. The communication must be made to the lawyer or his assistants in their professional capacity; the relationship must be a professional one at the exact moment of the communication. Communications made in order to facilitate the commission of a crime or fraud will not be confidential either, regardless of whether or not the lawyer is acting in good faith. [Emphasis added.]
65 In the case at bar, the communication was made because the Law Society was investigating the appellant's practice. The declarations were false statements which were submitted to deceive the Law Society. The appellant must have hoped and expected that the declarations would be read by all who would be involved in determining whether discipline proceedings should be instituted. They were submitted with the intention that they would be acted upon. It is difficult to imagine that solicitor‑client privilege could attach to the declarations in those circumstances. Even if it were to be assumed that the solicitor‑client privilege attached to the context in which the declarations were made it still remains that the documents were prepared and submitted to further the criminal purpose of obstructing justice. This, in itself, would certainly remove any privilege that might have attached to them.
66 Further, I find it difficult to see how the appellant can claim a constitutional remedy pursuant to s. 24(2) based upon the alleged violation of the Charter rights of third parties, namely the affiants. This section of the Charter provides a remedy only to the individual whose Charter rights have been violated. That is a sufficient basis for dismissing this ground of appeal. In any event there could not be any violation of the affiants' Charter rights. It must be remembered that the affiants executed the declarations with the specific intention of assisting the appellant with regard to the Law Society investigation. They too must have expected members of the Law Society to read and act upon their declarations. They cannot have thought that the documents would be privileged in these circumstances. This ground of appeal cannot, therefore, be accepted.
Disposition
67 The appeal is therefore dismissed.
Appeal dismissed.
Solicitors for the appellant: Manning & Simone, Toronto.
Solicitor for the respondent: The Ministry of the Attorney General, Toronto.