COURT FILE NO.: CRIMJ(P) 754/10
DATE: 2013 10 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. R. Peck, Q.C., S. Fenton, E. Gottardi and L. Morgan, for the Respondent
Respondent
- and -
MIKE LEONARD RUTIGLIANO and BARRY PIERSON
S. Hutchison, O. Wigderson and F. Schumann, for the Applicant Mr. Rutigliano
J. Wilkinson, for the Applicant Mr. Pierson
Applicants
HEARD: October 8-9, 15-16, 21, 2013
RULING RE SOLICITOR-CLIENT PRIVILEGE
HILL J.
INDEX
INTRODUCTION. 1
BACKGROUND ................................................................................................... 2
THE ABUSE OF PROCESS MOTION
Solicitor-Client Privilege in the 2012 Phase of the Motion. 7
Det. Sergeant Gregus’ Cross-Examination. 14
POSITIONS OF THE PARTIES
Waiver By Disclosure. 25
Waiver By Police Assertion of State of Mind as a Defence. 28
Production As Essential to Full Answer and Defence. 29
Adverse Inference. 33
Non-Disclosure Warranting a Stay. 34
ANALYSIS
Governing Principles
Abuse of Process. 35
Solicitor-Client Privilege. 42
Full Answer and Defence/Abuse of Process. 49
The Approach In This Case
Disclosure by Waiver 63
Waiver by Assertion of State of Mind as a Defence. 66
Adverse Inference. 66
Full Answer and Defence as a Privilege Exception. 68
CONCLUSION. 76
INTRODUCTION
[1] In an application to stay criminal charges before the court, former Ontario Provincial Police (OPP) Sergeant Rutigliano and Mr. Pierson allege that to continue the prosecution would amount to an abuse of process.
[2] The defence position is that Mr. Rutigliano not having been charged criminally following police Projects Colisee or ORINK, but with a belief on the part of the OPP that he was a dirty cop, judicially authorized wiretaps were obtained without there being any investigative necessity for such extraordinary intrusion upon privacy. It is essentially said that, relying upon unsupportable suspicions, a “contrived investigation”, a “straw” case or excuse of sorts, was presented to the court to obtain the orders masking the true intent of investigators which was to secure evidence in an effort to expose then Sergeant Rutigliano as tied to organized crime and to have the officer dismissed from his employ as a peace officer.
[3] Beyond that, and relying principally upon submitted multiple breaches of their s. 7 and s. 8 Charter rights by a collective of police investigators, it is alleged that established unconstitutional conduct on the part of the police, some of which has already been proven, amounts to a “blatant disregard for the terms” of court orders relating to the protection of solicitor-client privilege. The alleged misconduct was deliberate. Depending on the totality of evidence adduced on the motion, and inferences drawn therefrom, established misconduct may also support findings of deliberate violation of the criminal law including contempt, disobeying court orders contrary to s. 127 of the Criminal Code, unlawful interception of private communications other than “in accordance” with the terms of a judicial authorization contrary to s. 184(1) of the Code, and disclosure of unlawfully intercepted private communications contrary to s. 193(1) of the Code. It has been further submitted that certain post-charge police conduct relating to the disclosure process obstructed the course of justice and significantly aggravated the pre-charge abuse.
[4] During the course of the lengthy and ongoing abuse of process motion inquiring into the actions of the relevant police investigators, the issue has arisen as to whether a police witness may be asked about, or may disclose of his own motion in responding to a cross-examination question, legal advice received and relied upon.
BACKGROUND
[5] In a 14-count indictment before the court, Mike Rutigliano was charged in all counts except count number 6. Barry Pierson is charged only on count numbers 4 and 6 to 8. The accused have elected trial by judge and jury.
[6] The charges may be conveniently described in four groupings summarized as follows:
(1) the “Mavroudis” charges (count numbers 1 – 3)
– criminal breach of trust, conspiracy to obstruct justice, wilful attempt to obstruct justice
(2) the “Bombardier” charges (count numbers 4 – 8)
– fraud of money exceeding $5,000, corrupt giving of secret commission, corrupt receipt of secret commission, conspiracy to give/accept secret commissions
(3) the “D’Angelo” charges (count numbers 9 – 11)
– criminal breach of trust, conspiracy to obstruct justice, wilful attempt to obstruct justice
(4) the “weapons” charges (count numbers 12 – 14)
– unlawful possession of prohibited weapons (X3)
[7] The criminal charges were laid following a lengthy OPP investigation called Project Bond and at times Project Obond, an exercise which entailed a number of investigative measures including judicially authorized wiretapping.
[8] Four Criminal Code Part VI wiretap orders were issued to Bond investigators – October 8 and December 12, 2008, and February 4 and April 2, 2009. In late 2012, a pre-trial motion commenced, including the calling of oral evidence, in furtherance of the defence seeking a stay of proceedings and exclusion of the intercepted communications and evidence derived therefrom. It was submitted, for a variety of reasons, that in executing the orders and in obtaining related unsealing orders the police breached the right of the accused to be secure from unreasonable search or seizure as protected by s. 8 of the Charter.
[9] On January 11, 2013, Mr. Fenton on behalf of the Crown informed the court that the prosecution had conducted a comprehensive review of the evidence resulting in this decision:
As a result of that review, that is to say the review of the evidence heard before this court on the pre-trial motions, … the Crown has decided that it will not seek to introduce into evidence at any of the trials of the charges on the indictment, any evidence of the intercepted private communications obtained pursuant to those wiretap orders, or any evidence derived from the intercepted private communications. And when I refer to derivative evidence, I am referring to evidence that would not have been discovered but for the interceptional evidence obtained from the wiretap orders consistent with a large body of case law that I know this court is well familiar with from our Supreme Court of Canada.
[10] Crown counsel further informed the court that as a result of the review, and the prosecution’s voluntary withdrawal of the evidence described, there remained no reasonable prospect of conviction of Mr. Rutigliano on the Mavroudis or the D’Angelo charges. Those charges were then withdrawn at the request of the Crown.
[11] On behalf of Mr. Rutigliano, Mr. Hutchison in part stated:
… I note that it is not the product of an agreement. There is no quid pro quo involved here and the motion that is continuing before Your Honour is not rendered moot by this decision.
While the admissibility of the intercepted private communications was a significant part of that motion, Your Honour will know from the document that the prayer for relief extends beyond simply exclusion and includes a request that this court stay all of the proceedings based on the cumulative Charter breaches that we say can be identified in the investigation of this matter.
[12] On May 13, 2013, Mr. Fenton assisted the defence and the court by articulating the scope of the prosecution’s concessions regarding breach of the s. 8 right of the accused which counsel described as “cumulatively” amounting to “serious s. 8 violations” predominantly during the execution process of the Part VI court orders. Counsel stated:
[T]he Crown was able to itemize eight points in terms of the implementation errors that informed the Crown’s decision to withdraw reliance on the Part VI evidence on the basis that in our view Charter violations would be established under s.8 of the Charter.
[1] The first is that the Part VI orders, each of them, all four of them required live monitoring by the clear language of Paragraph 6 in relation to any calls where it was identified that a solicitor was a party to the communication. There was not live monitoring for telephone calls at any time during the currency of the Part VI orders, so from October 15, 1008 until April -- near the end of April, 2009. During that time, as we’ve heard in the evidence before the court, several hundred presumptively privileged interceptions with solicitors were recorded and put away. The Crown conducting its review was satisfied that a s.8 Charter violation would arise from the failure of the investigators to implement the order in accordance with its terms.
[2] [R]elated to live monitoring, is that the JSI system was not configured in a manner that would permit live monitoring. This was the RCMP system, as you’ve heard, that was used. It was essentially built to fail for the four orders in question. So even if the investigators had averted to the true meaning of the order, they could not have implemented it with the JSI system as it was configured.
[3] The third implementation error or concern that informed our decision … related to the summaries of solicitor calls and/or texts that were the subject of the daily call logs. I am referring to the logs that were transmitted from the backroom or the wire room on a daily basis. I should say that in our view there is nothing wrong with daily call logs, that the general proposition being circulated to the investigative team. In this case the error was that summaries of intercepts with solicitors that firstly should not have been intercepted, but secondly having been put away, were then erroneously disseminated to the investigation team. In our view, someone should have realized that shouldn’t have been happening and halted the practice, and it didn’t happen. So we see that as informing our views on the s. 8 issue.
[4] To that, the fourth issue is somewhat related. Summaries of the content of solicitor calls were relied upon for at least the first unsealing application before this court [January 12, 2009] and in our view.... [u]nfortunately notwithstanding that there is content in the application before the court, no one in that a Crown assisted in the application, no one twigs to the fact that content shouldn’t be in the material.
[5] The fifth issue … is that whether or not investigators should have appreciated before the very first Part VI order that there was a reasonable expectation that a person in former Sergeant Rutigliano’s position would likely be conversing frequently with police officers, by the time of the second Part VI application, it should have been clear to the affiant and others that there was a fairly high volume of solicitor intercepts. I’ll just simplify that. In other words, by the second order, it should have been clear that former Sergeant Rutigliano was frequently speaking on the telephone with solicitors, which would be presumptively privileged communications. And that opportunity to effectively do a re-check on how the execution of the orders was being conducted was not, unfortunately, conducted.
[6] [T]he evidence that was heard on this motion revealed that on November 17, 2008 while a room probe conversation was taking place at the premises of Aero One Technical Solutions, which room probe was live-monitored, the live-monitoring person placed a call to the investigative room, which in our view was appropriate, to alert those who had an interest and who were possibly listening to telephone calls, that the call was about to be or was being placed to or from a solicitor. The JSI system evidence, which we understand to be an objectively reliable footprint of access, shows that … someone in the investigative room through the OBond listening station picked up and tied into that call, listened throughout the entirety of the call, knowing that it was a presumptively privileged communication.
[7] The seventh issue concerns the level of -- it’s not really a stand-alone Charter violation, these are just matters that informed our overall judgment, the level of supervision which the affiant [Staff Sergeant Murray] offered to the backroom to monitors and the backroom supervisors in relation to execution issues was substandard.
[8] And then finally … and this is an issue which we haven’t heard potentially all the evidence on yet, but it informed our decision-making; it’s the concerns about the failure of Detective Constable Winter to disclose an execution issue to the Crown and ultimately for disclosure to defence counsel concerning presumptively privileged calls in disclosure at a time when an investigation or inquiry, if I may put it that way, was mandated by the Crown regarding a more limited issue concerning text messages, and which resulted in a disclosure to the defence of problems in relation to the text messages which unbeknownst to the Crown at the time, apparently extended further to calls.
[13] On October 15, 2013, Mr. Fenton added a ninth concession – that a January 5, 2009 solicitor-client privilege waiver by then OPP Commissioner Fantino, discussed further below, was “wrongly implemented” in a manner inconsistent with the terms of a Part VI wiretap order. Counsel acknowledged that, in due course, the Crown may be in a position, given how the evidence is developing, to concede that additional police actions, beyond the “serious” violations already identified, amounted to state misconduct at least of a Charter-breaching character.
[14] On more than one occasion, Crown counsel has indicated on the record that the prosecution will not be seeking to submit any across-the-board reliance on good faith error, mistake or the like to explain proven police misconduct during the course of the investigation. As to “some” officers’ actions, the prosecution will concede “an absence of good faith”. That said, on an officer-by-officer assessment of each officer’s role and actions, good faith may be advanced in individual cases in an effort to diminish the seriousness/fault attached to any misconduct however otherwise described.
THE ABUSE OF PROCESS MOTION
Solicitor-Client Privilege in the 2012 Phase of the Motion
[15] In the voluminous prosecution disclosure to the defence, among the redactions of materials by the Crown, particularly in police investigator notes, are what have been described in this motion as the “A1 redactions”. While the prosecution might leave reference to a phonecall or meeting with Crown counsel in the disclosure, the contents of police-Crown communications were excised where the subject of requesting and/or receiving legal advice was discussed.
[16] OPP Staff Sergeant Murray, the affiant for Part VI orders and Lead Investigator for Bond, testified for a number of days in September 2012. So too did the Crown agent and counsel for the Attorney General of Ontario, Mr. Paul Murray, who provided legal advice regarding the orders. In this instance, there was a waiver sought by counsel for the Attorney General of Ontario prosecuting this case as described by Mr. Fenton prior to the relevant evidence and again on October 8, 2013:
Well, with respect to the other issue, that was an issue where the Crown made the decision as prosecutors in this case that we wished to open up and rely on the advice of Paul Murray, who was the original Crown counsel, who you’ve heard provided advice to the police in respect of the first Part VI order and who assisted the police in drafting it. And we obtained an appropriate waiver from … an appropriate high-level authority within the OPP for that purpose.
(emphasis added)
[17] The Staff Sergeant was also cross-examined regarding a number of other circumstances regarding daily call summaries prepared by the wireroom monitors as well his actions in preparing applications to unseal solicitor calls said to have been locked away from access. The witness testified that early on he spoke to Paul Murray about the unsealing process for solicitor calls contemplated by the relevant Part VI order and obtained some precedent material from the Crown agent.
[18] Staff Sergeant Murray was pressed in cross-examination by Mr. Wilkinson as to the changes in content in his affidavit material proposed as the unsealing application record to go before the court. Included in this questioning was the following:
Q. December 15th, 2008 when you meet with Mr. Sherriff [Crown counsel], okay?
A. Correct.
Q. He told you he wanted more of a justification as to why you – meaning you and OBond – wanted to get in to listen to these lawyer calls, right?
A. Right.
Q. So that’s what you went out and did, right; you went and got the Kayfetz summary and the Kayfetz call and you put it in your affidavit to try to show it as an example of a future crimes exception, right?
A. No, that’s not what my intention was.
Q. That’s what you did though?
A. What he needed -- like I ....
MR. FENTON: Well I think, Your Honour, the -- I have no problem with the question my friend, Mr. Wilkinson, asked; I would ask through you that the witness be cautioned not to get into his further di -- discussions with -- with Crown Sherriff, in terms of any legal advice provided. Clear -- clearly he received some direction which he has identified ... but there may be all sorts of advice that was given at around the time of that direction – my -- my submission, we should not go there.
MR. WILKINSON: Q. Right. Okay. All right. So whatever your intention was, that’s how your affidavit ended up, right? That you ...
A. What ....
Q. ... put forward the Kayfetz call -- I’m going to give you the question again so that maybe I can get an answer this time. So you put forward the Kayfetz call, the summary, in order to meet this request of Mr. Sherriff to give more information as to why you wanted to listen to the calls and you characterized it as possibly one of the exceptions to solicitor/client privilege, right?
A. What he -- no, what he had asked me for ...
MR. FENTON: Well ...
A. ... is -- is to provide ...
MR. FENTON: ... can you ...
A. ... like ...
MR. FENTON: ... sorry ...
A. ... I ....
MR. FENTON: ... objection. Your Honour, I -- obviously I have to do everything through you. In -- in my submission the witness was about to recount potentially a privileged discussion so I’d ask him not to relate his discussions with Mr. Sherriff. He can explain what he did as a result of his meeting with Mr. Sherriff.
THE COURT: Well when you left the office, what did you think you were supposed to do?
A. Provide more background to the investigation so that the authorizing justice had an idea of a scope and overview of the investigations. Those resulted in the overview pages that were included in this document, and it was along those lines that I followed the direction.
(emphasis added)
[19] During the course of this cross-examination of Staff Sergeant Murray, submissions were made respecting the significance of disclosure by the witness in March 2012 during an interview with Crown counsel while these pre-trial motions were ongoing. Counsel for the Attorney General of Ontario took the somewhat extraordinary measure of interviewing and tape-recording Murray and a number of the principal officers involved in the Bond investigation as a result of what appeared to be a massive investigative intrusion by the OPP upon presumptively privileged solicitor communications which, by the terms of the Part VI orders, ought to have been protected from such disclosure. The apparent misconduct was compounded by non-disclosing or delayed disclosure to the prosecution on the part of the OPP.
[20] In his September 18, 2012 testimony, Murray acknowledged that in his March 2012 interview with Crown counsel he had stated:
Q. And you say:
“So we were using Steve Sherriff, and I remember meeting with him and he wanted more of a justification as to why we wanted to get into and listen to these lawyer calls.”
Right?
A. Correct.
Q. So there you’re recounting what it was that Mr. Sherriff told you in terms of what you needed to put into the affidavit, right?
A. Correct.
Q. All right. So you agree with me that what Sherriff told you was you needed more justification as to why you wanted to get and listen to these lawyer calls, right?
A. Right.
Q. Then you come out of the meeting, you get on, I don’t know, e-mail or whatever with Hatcher and Fulford and you tell them, I need more information?
A. No, their role -- their role is straightly -- strictly being -- gathering the information on the calls. I’m to develop the application that will contain the background and if there was justification.
Q. Your note at December 15th, page 113, 13:23, you’re just out of the Crown’s office for this meeting where you’re told you need more justification as to why you want to access these lawyer calls, right?
A. Correct.
Q. If you want to have a read of it, you go ahead right now, but what I’m going to suggest to you is that, that entire piece, those pages we’ve just gone through, amounts to you providing more of a justification as to why you wanted to access the lawyer calls, in response to what Mr. Sherriff told you to do?
A. Correct.
(emphasis added)
[21] Cross-examination continued as to the officer’s objective in including solicitor communications in an affidavit designed to have those very communications unsealed – for example, his own idea? At Crown counsel’s directions? To, in part, promote the ‘crime exception’ to solicitor-client privilege? To advance full, fair and frank disclosure?
Q. Why did you use it [a communication involving lawyer Kafetz] to get calls unsealed?
A. As I said, to be full, frank and fair, to let the authorizing justice know that we have this.
Q. Isn’t that a breach of the court order? If you know that you’re not supposed to have it, and it’s a summary that accessing is in breach of the court order, isn’t you, taking it and incorporating it into your affidavit and swearing a oath over it, accessing it as much as anything else?
A. I took -- took it from the perspective that if I’m bringing this forward to a judge, that I need to be full, frank and fair and outline that this had occurred. So I felt it appropriate that it be in there.
Q. And you felt it was appropriate to use it for investigative ends, getting access to the lawyer calls by trying to use it as an example of how there is an exception to the privilege in existence, right; you thought you could do both, is that right?
A. I merely followed along with the advice that I was given to -- to prepare what we had.
Q. I don’t want to ask you about the advice. Do you agree with me that your use of that summary at the time was known to you to be a breach of the court order?
A. I -- I didn’t see it as a breach…
(emphasis added)
[22] Returning to Staff Sergeant Murray’s March 2012 interview with Crown counsel, the officer was asked by counsel about the circumstances of inclusion in his unsealing affidavit of reference to a summary of a room-probe-intercepted communication involving lawyer Kafetz. In the course of his response, Murray stated in part:
This summary before…this summary was provided to investigators in this matter and we didn’t…as an investigator, we did not listen to that call. When I asked for all of the…this initial one, as I said, I was…I was directed to provide reasons why we wanted to listen to solicitor calls. So, we took this call as it came out, because it came out to us in this fashion and we had it. It identified that someone is trying to…it appears that there may be an ongoing manipulation of a court case. So, it came out and I…I was given it, including all of the information, and it was an electronic format and I took that information and I put it into the affidavit. It was information that was available to me, was given to me and I needed…and I felt it was important that that go in that this one had the potential ongoing to have a criminal case being manipulated in the court.
(emphasis added)
[23] On September 18, 2012, during the course of submissions as to the limits of cross-examination of Murray’s involvement at the time of the unsealing applications with Crown counsel in dealing with the contents of solicitor calls intercepted during the project, Mr. Wilkinson submitted that the totality of the circumstances (including the March 2012 interview of Murray) moving from a “stripped-down” affidavit to what was ultimately presented to the court did not involve “innocent mistake” actions.
[24] In response, as to the March 2012 interview statement, Mr. Fenton stated:
I would say that in no way has this witness waived any privilege as between himself and Mr. Sherriff, who clearly he had contact with in relation to this first application and the other wiretap applications. So that’s my first point.
There is nothing in this witness’ evidence. In fact, we’ve taken some pains here today to point out privilege and ensure that the witness understands that he is not to relate the content of his communications with Mr. Sherriff, and he has not revealed the contents.
Really, the most he has said is as a result of a meeting with Mr. Sherriff, I may have done something differently than I might have done it otherwise. That does not waive the privilege.
I know that in one of his statements he referred to the fact that he met with Mr. Sherriff, was asked to go and you know, add more information … I mean that’s not -- there's no legal advice provided, so…
(emphasis added)
Mr. Wilkinson then observed:
My concern was that the exact phrase that my friend just reiterated in court was the legal advice that I wasn’t supposed to talk about, so if that’s not legal advice…
Det. Sergeant Gregus’ Cross-Examination
[25] Detective Sergeant Gord Gregus acted as the File Coordinator for the Project Bond investigation. As such, he received, organized and distributed information in various forms to investigators including during the currency of the four Part VI orders. The officer’s supervisor was Detective Inspector P. George who was the Case Manager.
[26] Detective Sergeant Gregus assisted Staff Sergeant Murray in his task of preparing affidavits to support applications for the Part VI orders.
[27] Paragraph 6 of the Part VI order which issued on October 8, 2008 read:
- It is further ordered that:
a. No communications may be intercepted at the office or residence of a solicitor, or at any other place ordinarily used by solicitors for the purpose of consultations with clients.
b. Where a monitor reasonably believes that a solicitor is a party to a communication intercepted at a place listed in paragraph 4 or a device listed in paragraph 5, all reasonable steps shall be taken to prevent the interception or continued interception of that private communication. The monitor may check the communication, at reasonable intervals, only for the purpose of determining whether the solicitor remains a party to the communication. If the monitor believes that a solicitor is no longer a party to the communication with a person named in paragraph 3, then the interception may continue.
c. If a communication between a person described in paragraph 3 and a solicitor is inadvertently intercepted, all access to the communication shall be denied, but the communication will be retained. Where it is believed that the communication is not or may not be the subject of solicitor-client privilege, it may be submitted to this Court in a sealed form, for an ex-parte determination as to whether access will be allowed.
d. Interception at the places listed in paragraphs 4(D) and 4(E) shall be accompanied by live audio monitoring. The interception will commence when it is known that a person in paragraphs 3(A) or 3(B) is a party to the communication. The interception of a communication shall be discontinued once it is determined that none of the persons in paragraphs 3(A) or 3(B) or is a party to the communication. However, the interception may be resumed at reasonable intervals to determine whether a person in paragraphs 3(A) or 3(B) has become party to the communication. If so, the interception may continue.
e. The interception of non-oral telecommunications, including pagers, faxes, electronic mail, modem and Internet communications is not subject to live monitoring.
[28] Detective Sergeant Gregus received daily call summaries from the RCMP wireroom as well as BlackBerry messages from RCMP tracking which were dealt with outside the JSI system and the monitors in the wireroom.
[29] On receiving the BlackBerry messages, the witness, who was given the primary responsibility of reviewing them, would read each message or part thereof. If there was a communication between a lawyer and another person, and the sergeant formed the view that no legal advice was involved, the message would remain available to investigators. If the officer perceived that legal advice was involved he would deal with the communication in this way:
And the procedure was that if I identified communications between a lawyer and their client that appeared to be legal advice, then they would be put aside or identified and not looked at any further, identified as to where they were. Not necessarily put aside, because they’re hard to pull out of the main document, ‘cause it might be only a portion of one page in a -- in a number of page document, but at least, identify where they were and not read further. And if we wanted to review those later, we would have to apply to a judge, just like with any….
[30] On December 2, 2008, OPP Constable Penny Fulford, the supervisor in the wireroom, e-mailed Detective Sergeant Gregus with questions relating to implementation of the existing Part VI order including this question:
The BlackBerry calls that we are receiving from tracking are not being viewed by the monitors or the wire room investigators so there is no way to mark them as privileged. We have simply been collecting them and forwarding them down with the summaries. Do we need a different procedure for them?
[31] On the same date, Detective Sergeant Gregus responded in part to Fulford’s queries:
As part of the BlackBerry messages, I am keeping an eye open for any advice being offered to a client. If you see any, make a note of it, make a note of where it is and do not read any further. If deemed relevant, necessary, will have to apply to a judge for release again, as with the phone calls.
[32] In a March 21, 2012 interview of Detective Sergeant Gregus with Crown counsel, disclosed to the defence, the witness stated that:
Also with regards to text messages and BlackBerry messages and computer data, that the advice being relayed to me from Inspector George, who if I recall had been meeting with Crowns, that those items were also open to view, given that the format just gets kind of dumped in. It is not that it can be controlled in any way, not like in an audio call, which shows up as a number, and you can say, “Okay, that is Lawyer Smith’s line.” It gets automatically flagged.
BlackBerry messages just come in a dump, and you can’t … you don’t know who it is going to be. So you have to look at it before you determine what it is.
Regarding text messages with defence counsel, again, you could view it initially with the advice that I was told, but again, once you see that advice is being given, then you have to sort of decide. Because of the way it gets dumped in the system, it can’t be flagged before it actually gets viewed by someone.
(emphasis added)
[33] In cross-examination in this motion, Detective Sergeant Gregus was asked whether he responded further to Constable Fulford about the BlackBerry message issue or provided the clarification she sought:
Yeah, we discussed it with the Crown at one point … I believe it was Mr. Saltmarsh or Mr. Sherriff.
[34] The witness further indicated that he and other investigators had a meeting with Crown counsel on December 3, 2008 at 10:00 a.m. In the witness’ notes for that date, he recorded:
Brampton crown’s office with D/Inspector George and DSS Murray. Met with Crowns Saltmarsh and Sherriff and Bulmer (ph). Discussed case and options.
[35] Detective Sergeant Gregus testified that although he “would have brought” the BlackBerry issue up at “the Crown meeting” of December 3, he had no memory of responding to Constable Fulford’s inquiry about the BlackBerry messages after the meeting. The witness further stated under cross-examination that: “I do not recall getting that advice at that time, I don’t”.
[36] Detective Sergeant Gregus’ note of January 14, 2009 relating to discussions with Detective Inspector George about “lawyer calls” reads in part:
Also, with text/BBerry computer data, open to view, given its format, but upon seeing legal advice, must note its existence/location and not read further without Judges authority to do so. All Crown texts/BBerry are good, as w phone calls except if found offering advice to MR personally. Plain view, texts with defence counsel may be viewed initially, once identified as legal advice, stop and put aside too. Emailed Penny FULFORD with these directions in the backroom and to Dave TAYLOR and Bev MACKEY and D/Sgt. FALCONER for computer searching.
[37] Cross-examination on October 7 and 8, 2013 explored whether the witness’ approach to the BlackBerry messages ever changed:
MR. HUTCHINSON: Q. Now I’m -- I'm going to have a couple of more questions for you but I want you to pause for a second as a I ask them just in case Mr. Fenton has anything he wants to say about these questions. At this meeting, did you and the Crowns discuss the issues raised in Penny Fulford’s letter?
A. I don’t recall. They were certainly on my list, I’m sure it was. I just don’t recall any discussion about that.
Q. Do you recall whether you received advice from the Crowns with respect to these issues?
A. Yeah, I don’t recall that.
Q. Well, would -- would you have written it down if you had gotten advice?
A. Not necessarily. If someone else -- if -- if I had understood that Staff Sergeant Murray was going to relay that information back to Penny or Detective George was, I don’t recall what the outcome of that meeting was. I just -- I have no recollection of getting answers to those questions and taking them back to Penny Fulford.
Q. Okay, well, one of the questions relates directly to what you are going to be expected to do, correct?
A. Yes.
Q. And you made no note of whatever advice it was you received with respect to how to -- to deal with the BlackBerry calls.
A. That’s correct.
MR. FENTON: Well, Your Honour, I think what the witness said is he can’t recall whether he got any advice. So it’s now turned into, he didn’t make a note of the advice you got. I’m not sure that follows.
THE COURT: Technically that’s correct, yes.
[38] Cross-examined more about the police approach after the December 3 meeting, the witness gave this evidence:
Q. What did you understand as of December the 3rd, what did you understand you were supposed to be doing with these BlackBerry calls, these BlackBerry messages that you were the sole line of defence for?
A. I was to read them for relevancy, and with regard [to] lawyer calls, I was to watch for any lawyer calls where advice was being given where a client was actually dealing with his own lawyer. That was my understanding. To watch for things that might be privileged…
Q. Okay.
A. …and then I put -- put aside for review later.
Q. So, any….
A. If I saw something that was the -- I -- I don’t recall when I got this information but it was basically the same information that I got January, later. If I saw something that appeared to be privileged, then I was to block it off, put it aside and not read any further. The problem is it comes in, in a big large group of data, 10, 20, 30 pages long and maybe on one quarter of a page, might have one email with a lawyer to Mr. Rutigliano perhaps, and I would read that and continue on. If it looked like something where he’s getting advice, receiving advice with his lawyer, then I would’ve put it aside. I don’t recall ever seeing where he got advice, asked for advice from his own lawyer.
Q. So -- so the only way that you would be able to do that is if you read the actual content of the message, right?
A. Yeah, just start reading the top of the content and see what it’s about, yes.
Q. And you might -- you might see a message from a lawyer, recognized as being from a lawyer but you’d read the content to decide whether or not it was actually something that you would decide as privileged?
A. Yeah and if I saw in the first few lines that something appeared to be advice, then I would’ve put it aside.
Q. But you didn’t do that just because it was from a lawyer, right?
A. No.
Q. You were allowed -- you thought somehow to read lawyer messages, decided they were privileged and only if you thought they were privileged, were you required to go through the unsealing process?
A. That’s correct.
Q. And your evidence is that you believed that even following your meeting on December the 3rd, 2008 with the Crowns and senior officers identified there?
A. At some point it was fairly early on, whether it was that meeting or something prior to that, I -- I had that belief that’s how I was supposed to handle those BlackBerry messages.
Q. Did -- did that understanding ever change at any point during this investigation?
A. No.
Q. Did you ever mark as privileged, a BlackBerry message?
A. I don’t recall marking any BlackBerry messages privileged, no.
Q. Not even one?
A. Not that I recall, no.
Q. Did you mark anything privileged or take any steps to have any of those BlackBerry messages dealt with as though they were privileged?
A. No.
Q. But you would agree with me that there were communications over the BlackBerry between Sergeant Rutigliano and lawyers?
A. Yes.
Q. Did you change your procedure, at all?
A. My procedure handling BlackBerry calls was always the same.
Q. Okay. Now, you are talking now about advice that you’ve received. And that -- you told us that the procedure after that advice was get the messages, first of all, right?
A. Yes.
Q. Read them all. Correct?
A. Yes.
Q. And if you see a communication involving a lawyer read that and decide if it involves legal advice.
A. Yes. Start reading it. And if it appears to be legal advice, stop reading it, at that point.
Q. Okay.
A. And then put it aside for consideration to be possibly taken before a justice to be reviewed.
Q. And, and just so I have it clear, and -- and we’ll close this off at this, your understanding, then, was that you were allowed to read lawyer communications to determine if they were privileged.
A. Start reading the communication to see if there was – appeared to be absent privilege, yes. Not to read the entire thing.
Q. And how did you come to have that view with -- as -- with respect to the role that you were performing, Penny Fulford having raised this issue?
A. Yes. I don’t recall exactly where it came from. It was, like I say, it was fairly early on. There was discussions, more than likely with Staff Sergeant Murray and Inspector George as to how we were going to handle this. But I honestly don’t recall the -- the date or the….
Q. You say that this was a position that you understood to have come to you from other officer in the investigation. Is it fair to say that other people understood that this is what you were doing and were okay with it?
A. Yes. And as I indicated yesterday, there was communication with the Crowns in January after, well after this, but communication with the Crowns that -- in a meeting and that, basically … our -- as I mentioned yesterday, we had the meeting with the Crowns in January after, you know, a month after this December email here where the -- that was the advice we received from the Crowns, as well, that BlackBerries come in in a -- in a group. They have to be looked at. And if there’s indication that there may be privilege, then they’d be put aside without reading the whole thing.
(emphasis added)
[39] At this point, on an objection by Crown counsel, the witness was excluded from the courtroom:
MR. FENTON: This was not in any way Mr. Hutchison’s fault in asking a question that prompted sort of an obvious recitation of legal advice which may be subject to privilege that the witness kind of offered this. We’re not seeking to rely on whatever legal advice he received. We’re not seeking to tender it into evidence. This witness cannot, on his own motion, waive the privileges between the OPP and the Crown in relation to any advice he received in January, because he was referring to that. I think it was the January 14th meeting.
But in my submission the -- the appropriate step, at this point, I would ask that the court remind the witness that he should not, unprompted, reveal the content of legal advice he may have received. Because the issue of whether he can do so is more complicated than simply he may feel that it’s appropriate for him to do in the witness box. And, and in fairness to the witness, he’s not -- he -- he may not know that rule. But I -- you know, we’re not relying on that, and I’m not going to ask you to rely on his evidence there later on in argument. But, clearly, he cannot waive privilege as between the OPP and the Crown.
[40] Mr. Hutchison responded in this fashion:
Well, a couple of things, Your Honour. We had a couple of questions about this yesterday and, and I made a point of telling the witness, wait and see if Mr. Fenton has an objection before you answer. And I worded the questions in a way that were intended to walk up to but round the issue. He’s offered this unprompted. And he’s offered it in a way that appears to suggest that he wishes to rely upon the advice that he received to explain or justify a step that he has taken.
I certainly agree with Mr. Fenton that the law governing his authority to make that waiver is not entirely clear. I certainly don’t suggest that he has the authority.
[41] Mr. Fenton further submitted that:
…had Mr. Hutchison said to the witness, what was the advice that you received from the Crown in January, then I would have objected and I would ask the witness not to relate legal advice that he had received from the Crown. I would have respectfully said that the proper question should be, as a result of the legal advice that you received, what did you do? Because to me that is, respectfully, what is the issue.
(emphasis added)
[42] Mr. Fenton maintained that in the face of the witness having “blurted” out privileged material, and the absence of a valid express waiver from the Commissioner of the OPP, the evidence was in effect inadmissible.
[43] On October 9th, Mr. Fenton was able to report to the court that the OPP had taken the advice of their own counsel and were declining to waive solicitor-client privilege.
[44] Prior to further argument on the privilege issue, at the direction of the court, Mr. Fenton assisted by providing notice of the date for submissions to the Commissioner of the OPP and to the Ontario Provincial Police Association, the organization representing officers of the Force.
[45] On the return date of October 15, it was reported to the court that the Commissioner was not seeking standing before the court and that the position as to waiver remained unchanged. Counsel for the OPPA also did not wish to seek standing and took no position on the waiver issue.
[46] Turning to a separate privilege issue, by a waiver dated January 5, 2009, then OPP Commissioner Julian Fantino waived any claim of solicitor-client privilege attached to any communication between Mr. Rutigliano and any Crown Attorney employed by the Ontario Ministry of the Attorney General between January 1, 2004 and February 11, 2009. Many such communications were intercepted during the wiretap project. According to Detective Sergeant Gregus, on Detective Inspector George’s direction, this authorized Bond investigators to listen to and record such communications and any previously presumptively privileged calls in this category which had been flagged or set aside could “be opened, or unflagged” without further application to the court to permit such access.
[47] According to the witness’ notes of January 5, 2009, there was a meeting, including teleconference attendance by some, which included Mr. Sherriff during which privileged calls and the Commissioner’s waiver were discussed.
[48] Detective Inspector George’s one-paragraph note of January 12, 2009 identifies a conference call with Steve Sherriff on that date. The note goes on to say that investigators are “[f]ree to listen to … calls” between Mr. Rutigliano and “Clewly” (agreed to be lawyer Gary Clewley).
[49] On the issue of intercepted calls with Crown counsel, Detective Sergeant Gregus’ note of January 14, 2009 states:
Discussed lawyer calls with D/Insp. GEORGE who advised all calls with Crowns by MR are not solicitor client privileged in his capacity w OPP, pursuant to Commissioner’s note of January 5th, 2009. Therefore back to start of intercepts, all calls w crowns are clear to view, subject to content, if he is receiving advice for personal legal issues. Not charged with anything at this time and so far only talking about friend’s legal problems, not his own.
[50] In his March 21, 2012 taped interview with Crown counsel, Detective Sergeant Gregus stated with respect to the January 14 date that Detective Inspector George informed him that the Commissioner’s January 5 waiver had this legal effect:
The advice that Inspector George was passing on to me was that that related to all calls going back to the first intercepts back in October of 2008. So all Crown attorney calls going back from day one of this investigation were to be clear for us to view or unflagged, if you want to do it that way.
However, with respect to the content of the call, if by chance the nature of the call involved legal advice, personal legal advice, then that would also…that would still be a privileged call.
(emphasis added)
[51] In summing up on the topic of what information he conveyed to Fulford about unsealing calls with Crown counsel and about BlackBerry messages, Detective Sergeant Gregus gave these responses in his March 2012 interview:
CROWN COUNSEL: And it was your understanding that Inspector George had received legal advice on this issues. Is that correct?
DET. SGT GREGUS: That is right.
CROWN COUNSEL: Were you aware or do you recall who had provided the legal advice to Inspector George?
DET. SGT. GREGUS: I don’t know exactly, no.
(emphasis added)
[52] Because the OPP accessed presumptively privileged solicitor communications without legal authority, and Detective Sergeant Gregus has taken the position that he made only a cursory review of the BlackBerry communications, apparently setting aside none on account of what he perceived to be solicitor-client privilege, the defence is understandably compelled to undertake cross-examination of the witness in part using communications already ruled to be privileged by the court and sealed. It is agreed that this extraordinary measure will, however, be undertaken with necessary minimization efforts to limit further intrusion upon the privilege.
POSITIONS OF THE PARTIES
Waiver By Disclosure
[53] The applicants submitted that in the circumstances of the entire history of the case, and despite a contrary position expressed by Crown counsel, there has in effect been a waiver by conduct – the prosecutorial disclosure and the testimony of police witnesses. With specified examples, counsel placed particular emphasis upon the disclosure references to meetings with Crown counsel, the contents of the daily-call-summaries interviews of March 2012, and various in-court responses of police witnesses including Detective Sergeant Gregus’ responses in cross-examination – all in the context of an ongoing relationship between police investigators and Crown counsel throughout this matter.
[54] It was submitted that Gregus has specifically, on more than one occasion, invoked reliance upon legal advice to explain individual or investigative team actions which have prima facie been demonstrated to be state misconduct. There has been no “blurt out” but rather an asserted justification to explain why particular actions were taken or interpretation of authority applied.
[55] It is said that although the RCMP Commissioner was considered in R. v. Campbell and Shirose, 1999 676 (SCC), [1999] 1 S.C.R. 565, at para. 67, to be the formal privilege-holder in respect of police actions in a particular RCMP investigation, that case did not conclusively decide that only the head of a police force, or his or her specific designate for the purpose, had authority to waive solicitor-client privilege. In Campbell, the issue of the legality of the reverse sting investigative technique had passed up through several levels of RCMP hierarchy.
[56] Relying principally upon Peach v. Nova Scotia (Department of Transportation and Infrastructure Renewal), 2011 NSCA 27, at paras. 3-4, 15, 23 and 27, the applicants argue that the court must scrutinize the specific authority of a particular state actor and whether authority to waive privilege is co-extensive with his or her authority to acquire the opinion in the first place.
[57] Here, it was submitted, Detective Inspector George (the Case Manager), Staff Sergeant Murray (the Lead Investigator) and Detective Sergeant Gregus (the File Coordinator), as the leaders of Project Bond, were effectively the individuals with authority to seek out legal advice, to receive and consider any such advice and to decide whether to act on it or to disseminate it. Accordingly, statements by these officers as to reliance upon legal advice, including in some instances what the advice was, constitutes valid waiver of solicitor-client privilege.
[58] It is said that this should especially be so where, in a case such as the one here, there has been a history of selective waiver and disclosure of legal advice in the sense that a waiver was sought and was forthcoming to allow full answer and defence respecting the obtaining of the Part VI orders and then deliberately withheld regarding the unsealing application process and various implementation issues relating to the Part VI orders effectively leading to non-answers or incomplete answers which are, in turn, likely to be inaccurate or misleading.
[59] On behalf of the Crown, it was submitted that, in light of Campbell, the only authority who could waive privilege, the OPP Commissioner or assigned designate, has declined to do so respecting the particular transactions at issue. It would become “chaos” if individual officers could, in a specific case, decide whether or not to open up solicitor-client privilege.
[60] In any event, it was submitted that there has been no waiver by disclosure. Solicitor-client privilege cannot validly be waived by inadvertence or unintentional intrusions into protected communications. It was submitted that, in this case, any prosecutorial slips in disclosure or uninformed breach of the privilege by a police witness cannot properly be taken as a lawful, voluntary and intentional waiver.
Waiver By Police Assertion of State of Mind as a Defence
[61] The applicants advanced as an alternative basis for the existence of waiver that by seeking to answer in the course of the abuse of process motion, what may be characterized as unconstitutional, if not illegal, conduct, much of which has been conceded by the Crown, the police have placed their intention and state of mind in issue. It is said that the operating mindset of the police investigators is the central issue.
[62] Seeking to defend on a state-of-mind basis, in some instances injecting an assertion of reliance on legal advice, necessarily entails a voluntary waiver of privilege.
[63] In this regard, the applicants placed particular reliance on what was described as the “Exxon principle” referred to in Campbell at paras. 68-71.
[64] The Crown disagreed arguing that in the absence of a valid and deliberate waiver, the defence cannot, by cross-examination questions posed to police witnesses in an abuse of process motion, where it has the onus of persuasion, purport to trigger a waiver of solicitor-client privilege by suggesting that the police put state-of-mind in issue. In this regard, the Crown relied upon R. v. Desabrais, 2000 BCCA 585, at para. 8; R. v. Creswell (2000), 2000 BCCA 583, 149 C.C.C. (3d) 286 (B.C.C.A.), at paras. 37, 41-3.
Production As Essential to Full Answer and Defence
[65] As an alternative argument to the existence of waiver of the privilege in the particular circumstances of this case, the applicants submitted that their right to make full answer and defence in an abuse of process motion entitled them to production of relevant solicitor-client communications once they established a prima facie showing of alleged state abuse which, if substantiated, would justify a stay of proceedings.
[66] It was submitted that the applicants have more than made a sufficient showing of a multitude of Charter-breaching actions on the part of the Bond investigators. The prosecution has already been compelled to concede this to be the case. It is said that in the face of such a cogent record already in existence, one which continues to be under intensive forensic development, the question of individual and institutional bad faith is squarely in issue. To prevent the defence from completely exploring the state of mind of state actors as to why they misconducted themselves in the fashion proved would be to defeat the making of full answer and defence.
[67] It was argued that in these circumstances, an inability to ask whether legal advice was sought respecting a particular police action and if so whether the advice was followed, effectively telegraphing at least some of the contents of such advice, the court will be in no position to properly assess whether established state misconduct was on the one hand blameless or by accident or negligent, or on the other hand, by wilful, intentional, deliberate or systemic misbehaviour on the part of the police, or perhaps something in between.
[68] It was argued that this is not a run-of-the-mill case involving Crown counsel advice to the police in the context of a particular search or arrest, where subsequently the police action is found to be unconstitutional – this is a case of demonstrable abuse relating to court orders with a range of serious state misconduct including, depending on proof of intention, criminal actions. As such, live, real and material issues are before the court respecting the state of mind of various state actors. There is no fishing expedition – the legal advice in question relates specifically to mis-execution of the Part VI orders in the context of an ongoing police/Crown relationship.
[69] Relying on Creswell and other authorities discussed more particularly below, the applicants submitted that, whether described as a specie of the innocence-at-stake exception to solicitor-client privilege, or otherwise as a constitutionally protected right to make full answer and defence in an abuse of process application where a threshold showing has been established and the Crown has not acknowledged bad faith as animating the misconduct, the court should order tailored disclosure regarding the legal advice insofar as it is relevant to the alleged misconduct earlier described and as is being explored in Detective Sergeant Gregus’ ongoing cross-examination and as is likely, I am informed, to arise during the testimony of other police witnesses including Detective Inspector George and Detective Sergeant Perrow.
[70] It was said that to do otherwise would allow a non-party to the litigation to “hermetically seal” from the court essential information necessary to the truth – effectively encouraging creation of an artificial record by giving permission for the police, whose actions are under scrutiny, to hold hostage the necessary facts to the determination of abuse of process and consequential remedy. This would amount to fundamental interference with full answer and defence.
[71] The applicants submitted that the relevant jurisprudence, properly interpreted, does not foreclose an exception to solicitor-client privilege in the circumstances here. Put differently, the exception operates though not in the context of the innocence of the accused in the guilt/innocence phase of a criminal trial.
[72] In responding to the defence submissions, the Crown submitted that in the absence of waiver a police witness should be directed to limit any response which might transgress into solicitor-client communications involving legal advice to informing the court that he or she is unable to answer without getting into privileged communications with counsel – in effect an assertion of solicitor-client privilege. That would end the inquiry. The witness would not be entitled to say one way or the other whether the advice was accepted or rejected or acted upon and certainly nothing more express about its contents.
[73] Crown counsel frankly acknowledged that in such circumstances, as a practical result, the parties and the court may not learn how legal advice operated as a factor in the police conducting themselves as they did. It is said that this becomes largely irrelevant where the prosecution, as in this case, specifically disavows saying that the police took legal advice and any characterization of established police misconduct as undertaken in good faith.
[74] In his submissions, Mr. Fenton noted that, in the course of this lengthy motion, issues “have evolved seismically”. The Crown took careful and considered stock of the evidence as it has been emerging and “self-medicated” by voluntarily providing an exclusionary remedy of Part VI interceptions and evidence derivative therefrom. Because an untainted body of evidence remains respecting counts in the indictment which have not been withdrawn, the applicants are undeserving of the “windfall” of a stay of proceedings. Crown counsel fairly acknowledged that given the “pronounced seriousness” of some of the Charter breaches, the prosecution would, in due course, “concede an absence of good faith” respecting the misconduct of some police officers.
[75] The Crown maintained that the “Creswell doctrine” has been overtaken by subsequent caselaw developments and in particular, R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445 which, it is submitted, restricts any full-answer-and-defence exception to solicitor-client privilege to a situation of innocence at stake solely in the context of core issues going to the guilt of an accused where there is a genuine risk of a wrongful conviction. In addition, it was submitted that the defence is not prevented by a lack of access to the legal advice circumstances from submitting factors to the court pointing away from good faith on the part of the police.
[76] The Crown submitted that a modern reality particularly in complex cases, but not limited to such cases, is that the police seek legal advice from Crown attorneys. Nothing should be done to place a chilling impact on such a relationship which fosters the public interest. This type of solicitor-client relationship cannot be treated as though it is deserving of some lesser or diminished respect and protection than other solicitor-client relationships. It was further said that the practical implication of the applicants’ position is that in almost any case where legal advice has been given to the police about an investigative matter and a Charter breach is later asserted respecting the matter, there will be a regular opening-up of the privilege issue.
Adverse Inference
[77] It was submitted by the applicants that if the court was unpersuaded that there had been a waiver of privilege, and unpersuaded that production should be ordered in furtherance of full answer and defence, that an adverse inference should be drawn against the police – in effect, that withholding the advice from the court permitted the court to infer that the police received lawful advice and then declined to follow it preferring instead to conduct themselves according to what they thought best suited their purposes. Mr. Hutchison characterized such an inference as effectively an inference of bad faith.
[78] The applicants submitted that whether such an inference is legally permissible remains an open question. It was nevertheless described as a realistic remedy and especially in a case where the privilege-holder had conducted itself “tactically” by waiving privilege respecting some aspects of the Part VI investigation but not others.
[79] Crown counsel submitted that the approach of drawing an adverse inference in an instance of non-waiver of solicitor-client privilege was not a “tenable” solution.
Non-Disclosure Warranting a Stay
[80] The applicants submitted that a denial of disclosure of the legal advice provided to the Bond investigators respecting the BlackBerry messages and with respect to use of the Commissioner’s waiver, or a substantial substitute for that information, would effectively deny the applicants the opportunity to establish their assertion of abuse of process and deny the court essential information in deciding the claim.
[81] It was recognized that the decision whether to issue a stay, for want of disclosure impacting to the point of defeating a real opportunity to present the abuse of process claim, would necessarily await conclusion of the motion.
[82] In these circumstances, the absence of disclosure on account of withheld privileged communications, would itself justify a stay: see Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 61; R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110, at para. 35.
ANALYSIS
Governing Principles
Abuse of Process
[83] “Courts in this country … have unquestionable jurisdiction to prevent abuses of their process by those responsible for investigating … offences”: R. v. Boise Cascade Canada Ltd. (1995), 1995 1579 (ON CA), 24 O.R. (3d) 483 (C.A.), at p. 487. There exists a residual discretion in a trial court to stay proceedings which “underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings”: R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 34; Campbell, at para. 20.
[84] With the merger of the common law and s. 7 Charter notions of abuse of process, the law now recognizes two categories of abuse of process:
(1) prosecutorial conduct affecting the fairness of the trial
(2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial system.
R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, at para. 73; Nixon, at para. 36; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 55. The second category, the “residual category … is a small one”: Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391, at para. 89.
[85] At paras. 37-8 of Nixon, the court stated:
The Court [in O’Connor] held further that there was no practical utility in maintaining two distinct analytic regimes based on the different burdens of proof. Even if a violation of s. 7 is proved on a balance of probabilities, the court would still have to determine the appropriate remedy under s. 24(1) of the Charter and the "clearest of cases" burden would still apply to justify the remedy of a judicial stay of proceedings (para. 69). The Court made clear, however, that the fusion of common law and Charter claims of abuse of process under s. 7 of the Charter does not alter "the essential balancing character of abuse of process".
Thus, in defining what constitutes a violation, it is important to recall what kind of harm the common law doctrine of abuse of process was intended to address and, in turn, why this degree of harm called for a stay of proceedings as the appropriate remedy. In other words, while s. 24(1) of the Charter allows for a wide range of remedies, this does not mean that abuse of process can be made out by demonstrating a lesser degree of harm, either to the accused's fair trial interests or to the integrity of the justice system. Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse of process.
(emphasis of original)
[86] As to an assertion of prejudice to the integrity of the justice system, the court observed at paras. 41-2:
Under the residual category of cases, prejudice to the accused's interests, although relevant, is not determinative. Of course, in most cases, the accused will need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way to successfully make out an abuse of process claim. But prejudice under the residual category of cases is better conceptualized as an act tending to undermine society's expectations of fairness in the administration of justice. This essential balancing character of abuse of process under the residual category of cases was well captured by the words of L'Heureux-Dubé J. in R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659. She stated the following:
Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure "that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society" (Rothman v. The Queen, 1981 23 (SCC), [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. [Emphasis added by Nixon Court; p. 1667.]
The test for granting a stay of proceedings for abuse of process, regardless of whether the abuse causes prejudice to the accused's fair trial interests or to the integrity of the justice system, is that set out in Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391, and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297. A stay of proceedings will only be appropriate when: "(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice" (Regan, at para. 54, citing O'Connor, at para. 75). (underlined emphasis is of original)
(bold emphasis added)
[87] The administration of justice must be kept from disrepute caused by unacceptable state conduct offending “our notions of “fair play” and “decency” and which shows blatant disregard for the qualities of humanness which all of us share”: R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, at p. 940; Campbell (SCC), at para. 43.
[88] “A stay of proceedings is only one remedy to an abuse of process, but the most drastic one”: Regan at para. 53. Recognizing that prejudice may be remedied by judicial intervention short of terminating criminal proceedings, the test for a stay of proceedings where abuse of process has been established has been described in these terms:
…a stay of proceedings will only be appropriate when two criteria are fulfilled:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2) no other remedy is reasonably capable of removing that prejudice.
I adopt these guidelines, and note that they apply equally with respect to prejudice to the accused or to the integrity of the judicial system.
(O’Connor, at para. 75)
See also: Regan, at paras. 53-4; Tobiass, at para. 90; R. v. Pan (2012), 2012 ONCA 581, 292 C.C.C. (3d) 440 (Ont. C.A.), at para. 24.
[89] Accordingly, a stay of proceedings is only appropriate in the clearest of cases, for example, where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued: O’Connor, at paras. 82-3. It is a prospective remedy aiming to prevent perpetuation of a wrong that, if left alone, will continue to trouble the community as a whole in the future: Tobiass, at para. 91. That said, “[t]here may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive”: Tobiass, at paras. 91, 96; R. v. Tran, 2010 ONCA 471, at paras. 88, 90, 104-7.
[90] A third criterion, added for cases where uncertainty persists about whether the proven abuse is sufficient to warrant the drastic remedy of a stay, may require the court to balance the interests served by granting a stay with society’s interest in having a final decision on the merits: Tobiass, at para. 92; Regan, at paras. 57, 123.
[91] There is of course no closed list of relevant factors in assessing the gravity of state misconduct in the course of a criminal investigation – for example, the number of unconstitutional or illegal actions, their duration, the degree of intrusiveness and departure from lawful standards, the number of officers implicated in the misconduct including their position in the rank hierarchy, any acts undertaken to conceal or cover-up the misconduct, and exacerbation of constitutional abuse through in-court testimony.
[92] Attention to the mindset of the police is of course common in s. 24 Charter jurisprudence. The conduct “and intention” of the state actor who has breached a Charter right, including “improper motive”, may be the “most relevant considerations” in an abuse of process case: O’Connor, at paras. 79, 89. Of course, where it is alleged that the police violated statutory law, proof of intent is necessary: Campbell, at para. 24. “[T]he more blameworthy the police conduct, the stronger the claim that the trial court must disassociate the judicial process from that conduct”: R. v. Clayton (2005), 2005 16569 (ON CA), 194 C.C.C. (3d) 289 (Ont. C.A.), at para. 75 (revd on a different basis 2007 SCC 32, [2007] 2 S.C.R. 725).
[93] Good faith constitutional error is treated differently than bad faith constitutional misconduct. Recognizing that “[t]he absence of bad faith does not equate to good faith, nor does the absence of good faith equate to bad faith” (R. v. Caron (2011), 2011 BCCA 56, 269 C.C.C. (3d) 15 (B.C.C.A.), at para. 38), there exists a continuum of fault or blameworthiness between these polar opposites.
[94] Police conduct that shows a “wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute” and “[w]ilful or flagrant disregard of the Charter by those very persons charged with upholding the right may require that the court dissociate itself from such conduct”: R. v. Grant (2009), 2009 SCC 32, at paras. 74-5. Unconstitutional behaviour is generally viewed as more serious where, in respect of constitutional rights, there is “defiance” on the part of the police (R. v. Lacelle, 2013 ONCA 390, at para. 14) or a “flagrant disregard of … Charter rights” or “intention … to misuse … powers” (R. v. Aucoin, 2012 SCC 408, at para. 46); see also R. v. Kitaitchik (2002), 2002 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at pp. 26-7 (as approved in R. v. Harrison (2009), 2009 SCC 34, 245 C.C.C. (3d) 86 (S.C.C.), at para. 23).
[95] In a particular case, in assessing abuse of process and the application for a stay, the court will need to examine the totality of relevant circumstances including “the nature and gravity of the violation” of the accused’s rights (R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at para. 29) or whether the state actor’s conduct was “so unfair or oppressive” or “so tainted by bad faith or improper motive, that to allow the Crown to now proceed … would tarnish the integrity of the judicial system”: Nixon, at paras. 59, 68.
[96] Again, accepting that each case will have its own unique circumstances, generally a significant relevant consideration is the intention of the individual said to have engaged in abusive conduct – “[f]or instance, non-disclosure due to a refusal to comply with a court order will be regarded more seriously than non-disclosure attributable to inefficiency or oversight”: O’Connor, at para. 79.
[97] There is of course no closed list of the type of serious state misconduct which might be found to amount to abuse of process. Turning to examples, involvement of the police in a conspiracy to manipulate the process or bad faith contravention of express policy of law enforcement agency may, depending on the facts, constitute abuse of process: Regan, at paras. 61, 92-5. If the authorities were to fabricate and plant evidence at the scene of a crime, the continued pursuit of the prosecution might well be damaging to the integrity of the judicial system: Tobiass, at para. 96. Police brutality and Crown indifference to, if not approbation, of police abuse and attempted cover-up, may constitute abuse of process (Tran, at paras. 90-107) as, depending on all the facts, would “actively hiding information that was material to the defence”: O’Connor, at para. 89..
[98] While “illegality in the police investigation” may be such as to shock the conscience of the community and be “so detrimental to the proper administration of justice that it warrants judicial intervention” (Creswell, at para. 1), illegality in any police investigation is a very important, but not necessarily determinative, element to be considered in deciding whether there has been an abuse of process: Campbell, at para. 42 reversing R. v. Campbell (1997) 1997 3462 (ON CA), 32 O.R. (3d) 181 (C.A.), at p. 190. “The effect of police illegality on an application for a stay of proceedings depends very much on the facts of a particular case”: Campbell (SCC), at para. 24.
Solicitor-Client Privilege
[99] Solicitor-client privilege is part of and fundamental to the justice system and whatever the origin of the privilege it has evolved into a substantive rule of law in Canada essential to the effective operation of the legal system: R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at paras. 2, 17, 21. At paras. 31, 33, 35, the court observed that:
…This privilege, by itself, commands a unique status within the legal system. The important relationship between a client and his or her lawyer stretches beyond the parties and is integral to the workings of the legal system itself. The solicitor-client relationship is a part of that system, not ancillary to it.
It is this distinctive status within the justice system that characterizes the solicitor-client privilege as a class privilege, and the protection is available to all who fall within the class.
The importance of solicitor-client privilege to both the legal system and society as a whole assists in determining whether and in what circumstances the privilege should yield to an individual's right to make full answer and defence. The law is complex. Lawyers have a unique role. Free and candid communication between the lawyer and client protects the legal rights of the citizen. It is essential for the lawyer to know all of the facts of the client's position. The existence of a fundamental right to privilege between the two encourages disclosure within the confines of the relationship. The danger in eroding solicitor-client privilege is the potential to stifle communication between the lawyer and client. The need to protect the privilege determines its immunity to attack.
However, solicitor-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.
[100] “[N]ot everything done by a … lawyer” attracts solicitor-client privilege (Campbell (SCC), at para. 50) nor does every communication between a lawyer and client attract privilege: McClure, at para. 36.
[101] Whether a communication in fact and law qualifies as a privileged communication depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered: Campbell (SCC), at para. 50. These criteria are generally applied to find privilege where:
(1) it is a communication between solicitor and client
(2) the communication entails the seeking or giving of lawful legal advice
(3) the parties to the communication intended that it be confidential.
See Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, at para. 15; Campbell (SCC), at para. 50; McClure, at paras. 36-7.
[102] Although it is accepted that solicitor-client privilege is not absolute (McClure, at para. 34: R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, at para. 1), it has been described as “all but absolute in recognition of the high public interest in maintaining the confidentiality of the solicitor-client relationship”: Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 53. The occasions when the solicitor-client privilege yields to a competing public interest “are rare and the test to be met is a stringent one” as intrusion upon the privilege necessarily causes damage to the privileged relationship: McClure, at para. 5; Brown, at paras. 1, 3; R. v. Li, 2013 ONCA 81, at paras. 59-60 (leave to appeal refused, [2013] S.C.C.A. No. 142).
[103] The privilege belongs to the client and can only be waived through his or her informed consent: McClure, at para. 37; Lavallee, Rackel and Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 39.
[104] With respect to the class privilege of informer privilege, it has long been recognized that where the privilege has not been waived or otherwise is not lawfully assertable in the circumstances, it is not only essential that the informer’s identity be protected but also that protection be extended to any information which “may implicitly reveal identity”: Leipert, at para. 19.
[105] Since solicitor-client privilege “cannot be abrogated by inference” (Pritchard, at para. 33), surely in the same way that caution must be exercised not to disclose the identity of a confidential informant, or any information that may implicitly reveal his or her identity, care must be exercised not to implicitly, or by impression, permit evidence to enter the record as to what legal advice a witness received in the absence of waiver or other applicable justification.
[106] While the law recognizes that implicit waiver of solicitor-client privilege may occur depending on all the relevant circumstances, inadvertent disclosure does not support a finding of implicit waiver: Creswell, at paras. 41-3; Chapelstone Developments Inc. v. Canada (2004), 2004 NBCA 96, 191 C.C.C. (3d) 152 (N.B.C.A.), at paras. 45-6, 49-51, 55, 59 (leave to appeal refused [2005] S.C.C.A. No. 38). As a general rule, for waiver to occur, the existence of the privilege must have been known and voluntarily disclosed with the intention to waive the privilege: S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., 1983 407 (BC SC), [1983] B.C.J. No. 1499 (S.C.), at para. 6.
[107] In Campbell (SCC), at para. 73, an instance of implicit waiver, the court noted disagreement with the proposition “that non-disclosure of information clearly relevant to the good faith reliance issue can properly be disposed of by adverse inferences”. In R. v. D.Z. (1995), 1995 893 (ON CA), 99 C.C.C. (3d) 477 (Ont. C.A.), at para. 8, in respect of the class privilege of spousal privilege, the court left for another day whether a trier of fact could draw an adverse inference from the assertion of privilege. At paras. 122-3 of Alberta (Minister of Justice) v. Nilsson, 2002 ABCA 283, the court observed that “[t]he question of whether an adverse inference may be drawn from a party’s failure to waive privilege over solicitor-client communications is not settled”. See also: McLennan v. McLennan, [2003] O.J. No. 355 (C.A.), at para. 8, noting the adverse inference drawn by the motions judge from failure to call the solicitor who drew up assignment agreements; Deborah S. Bartel, “Drawing Negative Inferences Upon A Claim Of The Attorney-Client Privilege” (1995), 60 Brooklyn Law Review 1355.
[108] I note as well the observations of Charron J. at paras. 62-3 of Nixon, albeit not in the context of a class privilege but rather in an instance of penetration of the exercise of core prosecutorial discretion:
Quite apart from any such pragmatic considerations, there is good reason to impose a threshold burden on the applicant who alleges that an act of prosecutorial discretion constitutes an abuse of process. Given that such decisions are generally beyond the reach of the court, it is not sufficient to launch an inquiry for an applicant to make a bare allegation of abuse of process. For example, it would not suffice for an applicant to allege abuse of process based on the fact that the Crown decided to pursue the charges against him but withdrew similar charges against a co-accused. Without more, there would be no basis for the court to look behind the exercise of prosecutorial discretion.
However, the repudiation of a plea agreement is not just a bare allegation. It is evidence that the Crown has gone back on its word. As everyone agrees, it is of crucial importance to the proper and fair administration of criminal justice that plea agreements be honoured. The repudiation of a plea agreement is a rare and exceptional event. In my view, evidence that a plea agreement was entered into with the Crown, and subsequently reneged by the Crown, provides the requisite evidentiary threshold to embark on a review of the decision for abuse of process. Further, to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement. That is, the Crown must explain why and how it made the decision not to honour the plea agreement. The ultimate burden of proving abuse of process remains on the applicant and, as discussed earlier, the test is a stringent one. However, if the Crown provides little or no explanation to the court, this factor should weigh heavily in favour of the applicant in successfully making out an abuse of process claim.
(emphasis added)
[109] A recognized exception to the solicitor-client privilege is the innocence at stake situation. As observed in Brown, at paras. 1 and 3, “in rare circumstances” the privilege may “be required to yield in order to permit an accused to make full answer and defence to a criminal charge” – an exception only to be “used as a last resort”: see also Chapelstone Developments, at para. 65. “Piercing solicitor-client privilege should be treated as an extraordinary measure, performed only in accordance with McClure, i.e., as a last resort when innocence is at stake”: Brown, at para. 27. Applications to invade the privilege “will be difficult and likely rare”: Brown, at para. 56.
[110] Like solicitor-client privilege, an accused person’s s. 7 Charter right to make full answer and defence is a fundamental tenet of our system of justice: Brown, at para. 1.
[111] The McClure test comprises a threshold question and, depending on the answer, a two-stage innocence-at-stake test. Under this regime, the burden of proof on a balance of probabilities rests throughout upon the accused: Brown, at para. 56.
[112] To satisfy the threshold test, steeped in a necessity determination, an accused must establish that:
(1) the information sought from the solicitor-client communication is not available from any other source and
(2) that he or she is otherwise unable to raise a reasonable doubt.
[113] Where the threshold is satisfied, the court should proceed to the innocence at stake test:
Stage #1 - with such information concerning the alleged communication as has come to the accused’s attention, the accused seeking disclosure/production of a written or oral solicitor-client communication must demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his or her guilt
Stage #2 - if such an evidentiary basis exists, the court shall examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to guilt.
[114] Given the over-arching criterion of necessity (described as “the “absolutely necessary” test in Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, [2006] 2 S.C.R. 32, at paras. 15, 20, 21, 24, 25), “a reasonable possibility that the information may be useful to the defence is simply too low a threshold” upon which to order production: Chapelstone Developments, at para. 67.
[115] Where the court, after review of the relevant communication(s), is satisfied that disclosure is necessary, the manner and scope of the disclosure falls within the judge’s discretion having regard to production only to the extent absolutely necessary so as to limit intrusion “as minimally as possible”: Brown, at paras. 73, 96.
Full Answer and Defence/Abuse of Process
[116] The Crown is under a general duty to disclose all information within its control unless it is clearly irrelevant or privileged: R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, at p. 339.
[117] In R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, a case in which informant privilege was not waived respecting a confidential informer, the court equated making full answer and defence, as an aspect of innocence at stake, not only to the right of an accused to establish his or her guilt by raising a reasonable doubt as to guilt but also:
A third exception may exist where the accused seeks to establish that the search was not undertaken on reasonable grounds and therefore contravened the provisions of s. 8 of the Charter. Even under these conditions, a court should strive to provide as much evidence as possible to the defence by means of editing the information on which the search warrant was based without disclosing the identity of the informer. That disclosure should only be made in circumstances where it is absolutely essential: see R. v. Hunter, supra, [(1987), 1987 123 (ON CA), 59 O.R. (2d) 364 (C.A.)].
[118] Moving ahead chronologically, in 1997, in Campbell (OCA), at p. 197, Carthy J.A. canvassed possible inferences (though recognized as necessarily speculative in the absence of evidence in the record) flowing from the police having sought legal advice from Crown counsel as to the lawfulness of a particular investigative strategy subsequently determined to have been illegal and serious misconduct:
(1) the illegal conduct was authorized by the police hierarchy and its legal advisor, or
(2) the police rejected legal advice not to proceed and pursued the desired investigative technique moving ahead “on their own as mavericks”.
[119] Although the Supreme Court of Canada subsequently decided the case on the basis of waiver of the privilege, it is important to observe that the Court of Appeal acknowledged the right to make full answer and defence in the context of an abuse of process application:
The trial judge was also wrong, in my view, to conclude that the appellants were no longer making full answer and defence after the conviction. In fact, if there was a finding of guilt, no conviction should have been entered against the appellants before the hearing of the stay application. In either event the entire jeopardy of the appellants remained an open issue until disposition of the stay application and the principles enunciated in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1, were still very much applicable.
Thus, I would have directed production of the documents and evidence of the Crown law officer for the above reasons and as having relevance to the dimensions of the illegal plan that was to be carried forth.
(emphasis added)
[120] In February of 1997, the Supreme Court of Canada decided the case of R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, a matter engaging consideration of police-informer privilege. At paras. 9, 12, 20, 24, 26-27, McLachlin J. (as she then was) stated:
A court considering this issue must begin from the proposition that informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement. It is premised on the duty of all citizens to aid in enforcing the law. …
The rule [against the non-disclosure of information which might identify an informer] is of fundamental importance to the workings of a criminal justice system. …
Informer privilege is of such importance that once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations, as is the case, for example, with Crown privilege or privileges based on Wigmore's four-part test…
Informer privilege is subject only to one exception, known as the “innocence at stake” exception.
… To the extent that … privileges stand in the way of an innocent person establishing his or her innocence, they must yield to the Charter guarantee of a fair trial.
Where the accused seeks to establish that a search warrant was not supported by reasonable grounds, the accused may be entitled to information which may reveal the identity of an informer notwithstanding informer privilege "in circumstances where it is absolutely essential": Scott, supra, at p. 996. "Essential" circumstances exist where the accused establishes the "innocence at stake" exception to informer privilege. Such a case might arise, for example, where there is evidence suggesting that the goods seized in execution of the warrant were planted. To establish that the informer planted the goods or had information as to how they came to be planted, the accused might properly seek disclosure of information that may incidentally reveal the identity of the informer.
Absent a basis for concluding that disclosure of the information that may reveal the identity of the informer is necessary to establish the innocence of the accused, the information remains privileged and cannot be produced, whether on a hearing into the reasonableness of the search or on the trial proper.
(emphasis added)
[121] In 1999, the Supreme Court of Canada had the opportunity to turn to review of another class privilege, solicitor-client privilege, in the appeal of the Campbell decision. As said, the court concluded that the RCMP had effectively waived solicitor-client privilege by taking the position, and instructing counsel, that police actions were undertaken in good faith reliance on legal advice – “the plain implication sought to be conveyed … to the courts was that the RCMP accepted the legal advice that they were given by the Department of Justice and acted in accordance with it”: see 1999 676 (SCC), [1999] 1 S.C.R. 565, at paras. 46, 67-8, 70-1. At paras. 45, 47, 73 and 77, Binnie J. stated:
The point here, however, is slightly different. Superadded to the issue of illegal conduct is the possibility of a police operation planned and executed contrary to the advice (if this turns out to be true) of the Department of Justice. The suggestion is that the RCMP, after securing the relevant legal advice, nevertheless put itself above the law in its pursuit of the appellants. The community view of the police misconduct would, I think, be influenced by knowing whether or not the police were told in advance by their legal advisers that the reverse sting was illegal. Standing by itself, therefore, the subsequent 1996 enactment addresses only part of the issue.
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" (p. 197) 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.
… The Court of Appeal said that it was prepared to assume the worst against the RCMP and on that basis felt able to use s. 686(1)(b)(iii) of the Code to uphold the decision of the trial judge. The difference between my approach and that of the Court of Appeal is that in my view, with respect, a Department of Justice opinion pronouncing the reverse sting to be unlawful would weigh differently in the balancing of community values than a Department of Justice opinion to the opposite effect. Police illegality of any description is a serious matter. Police illegality that is planned and approved within the RCMP hierarchy and implemented in defiance of legal advice would, if established, suggest a potential systemic problem concerning police accountability and control. The RCMP position, on the other hand, that the Department of Justice lent its support to an illegal venture may, depending on the circumstances, raise a different but still serious dimension to the abuse of process proceeding. In either case, it is difficult to assume "the worst" if neither alternative has been explored to determine what "the worst" is. Because the RCMP made a live issue of the legal advice it received from the Department of Justice, the appellants were and are entitled to get to the bottom of it.
… If it should turn out that the reverse sting was launched despite legal advice to the contrary, I think this would be an aggravating factor. …
(emphasis added)
[122] The court noted that the RCMP’s alleged good faith reliance on the Department of Justice legal advice was undoubtedly designed “to neutralize or at least blunt any finding of police illegality” (para. 76).
[123] Having decided the case on the basis of waiver, the court nevertheless, in obiter, at paras. 65-6, commented on the full answer and defence dimension of the innocence-at-stake test:
Another exception to the rule of confidentiality of solicitor-client privilege may arise where adherence to that rule would have the effect of preventing the accused from making full answer and defence: see R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, at p. 340; R. v. Dunbar (1982), 1982 3324 (ON CA), 68 C.C.C. (2d) 13 (Ont. C.A.), at p. 43; R. v. Gray (1992), 1992 406 (BC SC), 74 C.C.C. (3d) 267 (B.C.S.C.), at pp. 273-74. The Crown concedes the validity of the principle, but suggests that it is irrelevant to an abuse of process application because it applies only where "innocence is at stake", which is no longer the case in the present appeal. Where innocence is not at stake, the Crown contends, the accused's right to make full answer and defence is not engaged. In this connection, the Crown relies upon R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, per McLachlin J., at p. 607, and A. (L.L.) v. B. (A.), 1995 52 (SCC), [1995] 4 S.C.R. 536, per L'Heureux-Dubé J., at p. 561. I do not think these cases can be taken as deciding an issue that was not before the Court on those occasions. The Ontario Court of Appeal concluded at p. 200 that the full answer and defence exception applied because "the entire jeopardy of the appellants remained an open issue until disposition of the stay application". This may be true, but the appellants were not providing "full answer and defence" to the stay application. On the contrary, the appellants are the moving parties. The application is being defended by the Crown. The appellants' initiative in launching a stay application does not, of itself, authorize a fishing expedition into solicitor-client communications to which the Crown is a party.
As stated, the present appeal is decided on the basis of waiver of solicitor-client privilege and I leave for another day the decision whether, in the absence of waiver, full answer and defence considerations may themselves operate to compel the disclosure of solicitor-client privilege of communications in an abuse of process proceeding and, if so, in what circumstances.
(emphasis added)
[124] In R. v. Creswell (2000), 2000 BCCA 583, 149 C.C.C. (3d) 286 (B.C.C.A.), the court confronted the issue of whether the court could be requested, in the context of an assertion of necessity in making full answer and defence in an abuse of process application, to order production of otherwise solicitor-client privileged communications. The trial judge had ruled, relying on the Ontario Court of Appeal decision in Campbell, as an alternative basis of ordering production, that full answer and defence would justify production. On appeal, at paras. 46-9, and 51-55, Ryan J.A. held:
(i) Is innocence at stake where the accused applies for a stay of proceedings?
The Crown accepted this articulation of the principle, but argued that full answer and defence is limited to situations of "innocence at stake" which it says relates only to guilt or innocence of the accused with respect to the offences themselves. Counsel for the Crown submitted that once the appellant conceded that he had committed the actus reus and mens rea of the offences in question, his innocence was no longer at stake. Since privilege must yield only where innocence is at stake, it was not a live issue in this case.
For the purpose of this appeal I will accept the proposition that privilege should yield only where innocence is at stake. However I do not agree that the concept of "innocence at stake" is limited to guilt or innocence of the offences themselves.
In para. 39 of these reasons I have quoted para. 65 of the Campbell case. In that part of the judgment the Court suggests, without deciding, that the appellants in the Campbell case were not making full answer and defence because they were the moving parties in the application to stay the proceedings. This observation appears to be in conflict with the earlier decision of the court in R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, which dealt with informer privilege. Informer privilege, like solicitor-client privilege is subject to the "innocence at stake" exception (R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281). …
The issue of entrapment is determined apart from the issue of guilt or innocence. It is a policy issue. The only question is whether the entrapment constitutes an abuse of process requiring that the proceedings be stayed.
In my view, these cases support the notion that innocence at stake includes defending a charge on the basis that the unfair treatment of the accused disentitles the Crown to carry on with the prosecution of the charge or charges. Although the accused is the moving party and bears the onus of proving that a stay ought to be granted, the application for the stay, is nevertheless, in the words of Caulfield J. in R. v. Barton, supra, an "answer to an allegation made by the Crown". It therefore clearly falls within the innocence at stake exception.
(ii) Was innocence at stake in these proceedings?
Disclosure of the otherwise privileged communications should be made only where absolutely necessary, and it will only be absolutely necessary if innocence is at stake. In other words the information must be such that its disclosure is necessary to establish the innocence of the accused.
In the context of this case, this means that the information must be necessary to establish entitlement to a stay of proceedings. I am of the view that since the confidential communications relate to an important factor in that analysis, the information must be disclosed.
The Campbell case makes it clear that where the police have operated outside the law whether they have done so on the basis of legal advice, or more significantly, in spite of legal advice, is an important consideration in determining whether a stay should be granted. …
Disclosure of the legal opinion does not depend on whether the Department of Justice has raised "good faith" as an issue. The defence is entitled to raise "bad faith" as an important factor for the trial judge in determining whether to grant a stay of proceedings.
(emphasis added)
[125] A companion case to Creswell, heard together with that appeal, R. v. Desabrais (2000), 2000 BCCA 585, 149 C.C.C. (3d) 305 (B.C.C.A.), was decided on an identical basis. See also R. v. Tonner, 2001 ABQB 105, at para. 17.
[126] In the McClure case, a criminal proceeding on sexual offence charges, in an in-trial application for production of a complainant’s civil litigation file, the trial judge granted the accused access to the file as necessary for full answer and defence. In its 2001 judgment, the Supreme Court of Canada held, per Major J., at paras. 38, 40-7:
While solicitor-client privilege is almost absolute, the question here is whether the privilege should be set aside to permit the accused his right to full answer and defence by permitting him access to a complainant's civil litigation file. It is agreed that the file in this case qualifies for solicitor-client privilege. The solicitor-client privilege and the accused's Charter right to full answer and defence are both protected by law. Which prevails when they clash?
Rules and privileges will yield to the Charter guarantee of a fair trial where they stand in the way of an innocent person establishing his or her innocence (see R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, at para. 24, per McLachlin J., as she then was). This Court has held that informer privilege will yield in circumstances where to fail to do so will result in a wrongful conviction. Our system will not tolerate conviction of the innocent. However, an accused's right to make full answer and defence in our system, while broad, is understandably not perfect. Section 7 of the Charter entitles an accused to a fair hearing but not always to the most favourable procedures that could possibly be imagined (see R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, per La Forest J., at p. 362).
F. Solicitor-Client Privilege vs. Full Answer and Defence
Solicitor-client privilege and the right to make full answer and defence are principles of fundamental justice. The right of an accused to full answer and defence is personal to him or her and engages the right to life, liberty, security of the person and the right of the innocent not to be convicted. Solicitor-client privilege while also personal is broader and is important to the administration of justice as a whole. It exists whether or not there is the immediacy of a trial or of a client seeking advice.
The importance of both of these rights means that neither can always prevail. In some limited circumstances, the solicitor-client privilege may yield to allow an accused to make full answer and defence. What are those circumstances?
G. Existing Tests
In determining those circumstances, there are two useful tests which help to identify when the right to make full answer and defence will prevail over the need for confidentiality. While useful, neither test sufficiently addresses the unique concerns evoked by solicitor-client privilege and, as explained later, more is needed.
The first test originated in O'Connor, supra, relative to procedures to govern production of medical or therapeutic records that are in the hands of third parties. Subsequently, Parliament codified the procedure in ss. 278.1 to 278.9 of the Criminal Code and its constitutionality was upheld in R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668. The O'Connor test and ss. 278.1 to 278.9 of the Criminal Code were created with the sensitivity and unique character of third party therapeutic records in mind. They focus on an individual's privacy interest and not the broader policy objectives underlying the administration of justice.
The other test is the innocence at stake test for informer privilege, see Leipert, supra. This test details the circumstances under which the identity of an informer might have to be revealed. The value of reliable informers to the administration of justice has been recognized for a long time, so much so that it too is a class privilege. This explains why the high standard of showing that the innocence of the accused is at stake before permitting invasion of the privilege is necessary. Should the privilege be invaded, the State then generally provides for the protection of the informer through various safety programs, again illustrating the public importance of that privilege. The threshold created by the innocence at stake test comes the closest to addressing the concerns raised in this appeal as it is appropriately high. Both informer privilege and solicitor-client privilege are ancient and hallowed protections. See Leipert, supra, per McLachlin J., at para. 12:
Informer privilege is of such importance that once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations, as is the case, for example, with Crown privilege or privileges based on Wigmore's four-part test:... .
H. The Innocence at Stake Test for Solicitor-Client Privilege
In granting the respondent McClure access to the complainant's civil litigation file, the trial judge applied the O'Connor test for disclosure of confidential therapeutic records. With respect, this was an error. The appropriate test by which to determine whether to set aside solicitor-client privilege is the innocence at stake test, set out below. Solicitor-client privilege should be set aside only in the most unusual cases. Unless individuals can be certain that their communications with their solicitors will remain entirely confidential, their ability to speak freely will be undermined.
In recognition of the central place of solicitor-client privilege within the administration of justice, the innocence at stake test should be stringent. The privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction.
(emphasis added)
[127] In a final comment as to when disclosure might be appropriate, the court stated at para. 58:
After a review of the evidence of the solicitor-client communication in question, the judge must decide whether the communication is likely to raise a reasonable doubt as to the guilty of the accused. In most cases, this means that, unless the solicitor-client communication goes directly to one of the elements of the offence, it will not be sufficient to meet this requirement. Simply providing evidence that advances ancillary attacks on the Crown’s case (e.g., by impugning the credibility of a Crown witness, or by providing evidence that suggests that some Crown evidence was obtained unconstitutionally) will very seldom be sufficient to meet this requirement.
(emphasis added)
[128] Later in 2001, in R. v. Castro (2001), 2001 BCCA 507, 157 C.C.C. (3d) 255 (leave to appeal refused March 14, 2002, a little over a year after McClure was decided (March 2, 2001) – [2001] S.C.C.A. No. 533), the British Columbia Court of Appeal returned to the issue in the context of an abuse of process application for a stay in a criminal trial. In this post-McClure decision, the court affirmed the approach taken in Creswell, stating at paras. 27-9, 34-9:
The proposition on which the appellants rely is summed up in the introduction to the judgment of Madam Justice Ryan speaking for the Court in Creswell at para. 1:
A stay of proceedings is available to a person convicted of an offence if that person can demonstrate that illegality in the police investigation which led to the charges constitutes conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.
I do not say that the appellants are entitled to a stay; that is for a new trial to determine. All that I would decide at this stage is that there is a sufficiently close link between the illegal operation and these prosecutions to found an argument for a stay and that the appellants are entitled to have the legal opinions considered in the disposition of their claim.
Creswell decided that disclosure of the legal opinions did not depend on proof that the police had waived their privilege; the accused there was entitled to rely on his right to make full answer and defence in pursuing a stay application. The same applies in the present case. …
The potential force of the evidence of the legal opinions is in my view the same as that expressed in Campbell and Shirose…
The Crown questions the authority of Creswell and Desabrais because of the later decision of the Supreme Court of Canada in R. v. McClure (2001), 2001 SCC 14, 151 C.C.C. (3d) 321, which, it is said, affirmed the view that solicitor-client privilege can only be put aside where the accused's innocence is at stake. The Crown argues that, since the elements of the offence were proved in this case the appellants cannot place themselves within the narrow exception to the privilege.
The "innocence at stake" argument was a significant aspect of Creswell and Desabrais. Ryan J.A. disposed of the same contention as the Crown argues here by drawing an analogy to the situation of informer privilege and entrapment where similarly the merits are not in issue on an application for a stay. She cited, at para. 48 of her reasons in Creswell, the case of R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, where the majority held that the innocence at stake exception could be extended to instances where the accused relies on entrapment.
In McClure, a sexual abuse case, the accused sought access to a complainant's civil litigation file relating to the same allegations of abuse. This was in aid of a defence on the merits. Major J., speaking for the Supreme Court of Canada, found that the trial judge erred in applying the O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, test and went on at paras. 46 and 47 to say:
... The appropriate test by which to determine whether to set aside solicitor-client privilege is the innocence at stake test, set out below. Solicitor-client privilege should be set aside only in the most unusual cases. Unless individuals can be certain that their communications with their solicitors will remain entirely confidential, their ability to speak freely will be undermined.
In recognition of the central place of solicitor-client privilege within the administration of justice, the innocence at stake test should be stringent. The privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction.
The Crown submits that this overrules Creswell. I disagree. McClure is only authority for what it decides and that is that the proper test for determining whether to set aside solicitor-client privilege is "innocence at stake" not O'Connor. The Supreme Court of Canada did not address stays of proceedings in this connection much less pronounce that the exception applies only to the merits. In my opinion, Creswell remains good law and should be followed.
In summary, the appellants have standing to argue the illegality of the police conduct in Project Eye Spy because it was intended to produce and in fact produced evidence directly leading to the appellants' prosecution. The conduct formed a sufficiently close link with the prosecution that it can be reasonably argued that the prosecution is tainted with illegality. Whether this amounts to an abuse of process requiring a stay will be for the judge who hears the matter to decide in light of all the circumstances, including the legal opinions. I would direct that the judge follow the procedure described in Creswell at para. 60:
Rather than undertake the procedure in Leipert, the trial judge ordered disclosure of the legal opinions. She did so in error. The confidential communications between the police and their solicitors must be protected as much as possible. Only communications which are necessary as proof of the fact in issue are subject to disclosure. The trial judge ought to have examined the opinions in light of the circumstances of the case before her, made a decision as to whether the opinions should be released, and if required, edited the opinions to reveal only as much information as was necessary to allow proof of innocence. (Emphasis of original)
(bold emphasis added)
[129] In 2002, in the Brown case, a trial matter not an abuse of process application, the Supreme Court of Canada applied language similar to that in McClure including that disclosure should only be ordered where it “is the only way for the accused to raise a reasonable doubt as to his guilt” (para. 72), in effect “a last resort to accused individuals whose innocence is at stake, and who would otherwise face the possibility of wrongful conviction” (para. 63).
[130] In 2004, in the Pritchard case, Major J., reminiscent of his reference at para. 58 of McClure to full answer and defence being limited “[i]n most cases” to raising a reasonable doubt as to guilt, stated at para. 17, “The privilege is jealously guarded and should only be set aside in the most unusual circumstances such as genuine risk of wrongful conviction” (emphasis added).
[131] Some authorities have interpreted the McClure test of intrusion upon solicitor-client privilege only “where core issues going to the guilt of the accused are involved” as having broad implications beyond the specific factual matrix of that case which involved a defence application respecting production of solicitor-client communication(s) in the context of the guilt/innocence phase of a trial. Put differently, these authorities, unlike Campbell (OCA), Creswell and Castro, would appear to favour foreclosing opportunity to extend innocence at stake to the making of full answer and defence in a Charter motion including an allegation of abuse of process: Chapelstone Developments, at para. 74; R. v. Schacher (2003), 2003 ABCA 313, 179 C.C.C. (3d) 561 (Alta. C.A.), at paras. 18, 25-8; R. v. Caines, 2011 ABQB 660, at para. 119; R. v. Greenbird, [2003] O.J. No. 4390 (S.C.J.), at paras. 54-5; R. v. Polu, 2005 ABQB 250, at paras. 18-22.
[132] That said, even in these cases, and in others, there is often an expression of recognition that full answer and defence in an abuse of process or breach of constitutional rights motion might, in exceptional cases, still be asserted as an exception to solicitor-client privilege: Chapelstone Developments, at paras. 69, 77; Schacher, at para. 28; R. v. Chan, 2002 ABQB 287, at para. 87; R. v. Appleby, 2006 NLTD 180, at para. 14; Greenbird, at para. 59; R. v. Trang, 2001 ABQB 825, [2001] A.J. No. 1270 (Q.B.), at paras. 38-9; R. v. Donszelmann, 2013 ABQB 39, at paras. 18, 22; see also Robert Hubbard, Susan Magotiaux and Suzanne Duncan, The Law of Privilege in Canada, Aurora: Canada Law Book, 2009, looseleaf at p. 11-43.
[133] Not unlike Ryan J.A.’s observations at paras. 54-5 of Creswell, I note that in the Schacher case, Ritter J.A., though contrary to the court’s overall conclusion restricting disclosure, accepted on the basis of the alternative that abuse of process could be equated to innocence at stake, that apart from the instance of any good faith reliance by the police upon a legal opinion, the legal advice could, in a specific case, be probative in other scenarios:
Legal opinions may also be relevant to show that a police officer received an opinion which suggested that a proposed sting operation was illegal and then disregarded the opinion. In that situation, the actions of the police officer would be considered to be more egregious than would otherwise be the case. This is then a factor that informs the trial judge's discretion regarding a remedy.
Likewise, communications may become relevant when a police officer requests legal advice and the advice given is deficient in the sense that the opinion was done hurriedly, negligently or was "off the cuff". Such opinions would be relevant because they would demonstrate a cavalier attitude on the part of the authorities which would elevate the egregious nature of the overall conduct involved…
(paras. 33-4)
The Approach In This Case
Disclosure by Waiver
[134] In my view, in the circumstances of the present case, individual police witnesses did not have authority to waive solicitor-client privilege respecting legal advice sought and received in the course of their duties as Project Bond investigators. In this regard, Campbell and the authorities which have followed it are to be preferred in identifying the head of the police force, or his or her designate for the purpose, as the responsible party to waive privilege.
[135] A Chief of Police or Commissioner will have a force-wide perspective of the instances where solicitor-client privilege ought to be waived with a view to relevant institutional factors, for example consistency of approach, avoidance of civil suits, etc., within the knowledge and policy-making purview of the force’s management.
[136] In the present case, the OPP Commissioner has not instructed the police witnesses in the abuse of process motion that solicitor-client privilege has been waived respecting any legal advice sought and received respecting either the BlackBerry messages or the implementation interpretation to be given waivers of former Commissioner Fantino.
[137] As is evident from the earlier summary of questioning of Staff Sergeant Murray and Detective Sergeant Gregus, the parties and the court have sought to grapple with respect to privilege while moving forward to make reconstructive sense of what transpired during the Bond investigation.
[138] Courts and the Bar, usually to prevent unnecessary hearsay from creeping into the record, frequently adopt the approach of saying to a witness, about to report an out-of-court communication, words to the effect of, “Without telling us what you were told, go ahead and relate what you did as a result of receiving that information”. Implicit in this approach is that the witness learned something which informed or animated his or her subsequent actions. Of course, on occasion, we permit the communication to be reported not for its truth but in order to better understand the witness’ behaviour.
[139] This approach is problematic, however, where the communication in question arose in a solicitor-client context. So, for example, although the Crown was content to have Staff Sergeant Murray explain what he did “as a result” of meeting Crown counsel Sherriff, and to have Detective Sergeant Gregus inform the court what he did “as a result” of legal advice received, this form of testimony implicitly suggests the subject matter of solicitor-client communications and that the witness acted in accordance with, consistently with, or in reliance on, advice from counsel. In other words, “as a result” is not limited to a narrow interpretation of simply what the witness did “after” speaking to counsel, but is itself communicative of more. The court must take responsibility for contributing to, and not having curtailed, this form of examination.
[140] While it appears without doubt that at times Staff Sergeant Murray and Detective Sergeant Gregus had an individual desire to respond to cross-examination questions regarding actions, decisions and operative investigative interpretations of authority and the like by relating reliance on legal advice, that form of response implicitly communicates through inference the advice itself and is therefore contrary to law. I do not take these witnesses to have sufficient legal acumen to understand all the nuances of solicitor-client privilege and, as said, they were without authority to waive privilege on the matters currently under examination.
[141] Further, quite apart from the authority-to-waive issue, I do not consider on the totality of the evidence that the March 2012 Crown interviews of principal investigators and others in Project Bond, by questions asked and responses provided, amount to a valid and intentional waiver of solicitor-client privilege.
[142] It was not suggested in argument that the partial waiver of privilege relating to legal advice in obtaining the Part VI orders should be interpreted as a waiver regarding disclosure of all legal advice received during Project Bond. Although the court may be in no position to review the approach of the Commissioner in picking-and-choosing release of legal advice, this may, as discussed more fully below, provide context to the court’s exercise of discretion whether or not to order disclosure of any communications subject to solicitor-client privilege.
Waiver by Assertion of State of Mind as a Defence
[143] In any abuse of process motion, or for that matter Charter pre-trial motion focusing upon the exercise of police powers, where the burden of persuasion is upon an accused person, and police misconduct is asserted to have been abusive, unconstitutional and/or unlawful, the defence will seek to establish through cross-examination of police witnesses not only what misconduct transpired, when and by whom, but importantly why proven misconduct occurred.
[144] The practical implication is that a police witness may, depending on case-specific circumstances, have a blameless or low-fault explanation for what is objectively a significant departure from a legal or constitutional standard – for example, accident, miscommunication, urgency, confusion or reasonable reliance upon legal advice. However, it is the proponent of the abuse or unconstitutional-conduct allegation that puts state of mind of the police witness in issue particularly through the very legitimate exploration of the “why” question. I agree with those authorities which have held that response to such a cross-examination question, defending or explaining police conduct, cannot itself trigger a waiver of solicitor-client privilege.
Adverse Inference
[145] Because the potential for drawing an adverse inference from a failure to waive solicitor-client privilege is arguably a less intrusive or damaging-to-privilege option to ordering disclosure, it makes sense to turn to this subject next. As reviewed above, we have almost no experience one way or the other with this approach.
[146] As I understand the Crown’s current position, in the absence of express waiver, no police witness may defend his or her actions by making any testimonial reference to consulting with Crown counsel or acting or not acting on legal advice given, as an explanation or narrative account tied to actions taken, and the witnesses should be cautioned against doing so. We do however know from the record as it presently exists, and the disclosure, that various meetings were held with Crown counsel relating to legal advice.
[147] That said, there is difficulty in defining precisely what adverse inference should fairly be drawn – an inference that lawful advice was received and rejected by the police, or an inference that erroneous legal advice was received and relied upon, or some other inference. As we know from the passages from Campbell (SCC) quoted at para. 121 above, and from Schacher, at para. 133 above, these two factual situations may, depending on the facts of a particular case, not be of equal weight in measuring the seriousness of state misconduct and may not both in fact amount to bad faith. As noted in Campbell (SCC), at para. 73, it is difficult to “assume” the worst “if neither alternative has been explored to determine what “the worst” is.
[148] I am unable to see how assigning a general inference of bad faith will promote doing justice to this abuse of process motion.
Full Answer and Defence as a Privilege Exception
[149] The parties are in agreement that counsel for the Attorney General of Ontario provided legal advice to Project Bond investigators respecting the BlackBerry messages and the interpretation as to how the Commissioner Fantino waiver(s) should be implemented. The advice may have been legally/constitutionally correct or not. Whatever the advice, it may or may not have been relied upon in whole or in part. Police actions respecting these two matters have been shown to be prima facie unlawful/unconstitutional and have been acknowledged as such by the Crown.
[150] Counsel for the Attorney General of Ontario prosecuting the applicants provided disclosure to the defence. On account of solicitor-client privilege, that disclosure did not include, or at least did not intend to include, answers to whether counsel’s advice supported this misconduct or counselled against it.
[151] In responding to the applicants’ abuse of process motion, counsel for the Attorney General of Ontario sought and received an OPP waiver respecting the obtaining of the Part VI orders. Apparently no waiver was sought respecting legal advice related to the BlackBerry messages and the Fantino waiver(s) until clarification was required during Detective Sergeant Gregus’ testimony. No waiver was forthcoming from the OPP, a part of government and a non-party in this litigation, undoubtedly for reasons best suiting its own interests which, unlike Crown counsel’s minister-of-justice obligations, need not include the pursuit of justice in a criminal trial.
[152] Counsel for the Attorney General of Ontario prosecuting the applicants have declared that the Crown is foregoing any reliance on legal advice provided by other counsel for the Attorney General of Ontario which might be characterized as good faith explanation for unconstitutional/illegal actions by the police. However, Crown counsel are unprepared to acknowledge bad faith on the part of the police and/or its own lawyers respecting these two issues.
[153] Appearing for the parties are experienced criminal lawyers with reputations for legal knowledge, fairness and respect for the process of the courts. On behalf of the applicants, the allegation of abuse of process has not been lightly made but rather with material in hand and the confidence necessary to pursue such a serious allegation. Crown counsel, at every turn, and consistent with their quasi-judicial role of ensuring that justice is done, have properly conducted themselves to assist in the full resolution of issues before the court.
[154] This is a difficult issue and one which seldom arises not only because a finding of abuse of process commands identification of an extremely serious affront to the integrity of the justice system but also because the Canadian experience has not been plagued by such abuse. Abuse of process is rare. So too is the necessity for the court to consider setting aside solicitor-client privilege.
[155] The applicants’ abuse of process application is structured on an allegation of cumulative acts of state misconduct relating to the obtaining and implementation of the Part VI orders and in particular with respect to presumptively privileged communications, acts which the defence seeks to establish were motivated by systemic recklessness or wilful disregard as to constitutional rights. In this regard, two matters of significance respecting the Part VI investigation are the circumstances of the BlackBerry messages and the Fantino waiver(s).
[156] The Crown’s May 13, 2013 articulation of eight concessions/acknowledgements of s. 8 Charter violations spoke in such terms as “errors”, “failure to implement in accordance with its terms”, “should have realized”, “no one twigs to…”, “substandard level of supervision”, and “failure to disclose”. Without in any fashion intending criticism, in many respects, if not neutral, these descriptors tend to be uninstructive on the issue of intention and on the good faith/bad faith issue critical to the abuse of process analysis.
[157] Through cross-examination, the applicants have explored these and other aspects of the police investigation with a view to sorting out the state of mind of relevant police actors. As a result, with respect to a number of police actions, the record has developed this aspect of the case without impediment either because legal advice was not implicated or a waiver of solicitor-client privilege existed. The same cannot be said with respect to the BlackBerry and OPP Commissioner waiver(s), two significant aspects of the abuse of process application.
[158] Is there authority for the court to set aside privilege in the context of an abuse of process motion? In my view, the Ontario Court of Appeal authority of Campbell, permitting a production order of solicitor-client communications in an abuse of process motion where an appropriate necessity threshold has been met, remains binding authority upon this court. As is evident from para. 66 of the appeal of that decision, it was not overruled on this point by the Supreme Court of Canada. The limitative statements in the McClure and Brown cases, cases which on their facts dealt with the solicitor-client privilege issue in the context of the guilt/innocence phase of criminal trials, restricting any setting aside of privilege to innocence at stake in the sense of raising a reasonable doubt as to guilt, cannot, in my respectful view, be taken to exclude operation of the approach in Campbell (OCA) and Creswell. Not only is this evident from the non-exclusive language at para. 58 of McClure and para. 17 of Pritchard, but this is also the interpretation accepted in subsequent authorities such as Castro which I find to be compelling on this point.
[159] It is advisable to attempt to come to grips with what is meant by full answer and defence in a context other than an accused person defending him or herself during the guilt/innocence phase of a criminal trial where the prosecution must establish guilt beyond a reasonable doubt. At times, involvement in a collateral or other proceeding has been described as an aspect of the innocence-at-stake exception to privilege (Leipert – challenge to search warrant; Creswell – abuse of process motion). However, as observed by Binnie J. in Campbell, at para. 65, “full answer and defence” may be somewhat of a misnomer in an abuse of process motion where the accused is the moving party discharging the burden of production and ultimately the burden of persuasion on a balance of probabilities. That said, at para. 66, it was left to another day to consider the extent to which “full answer and defence considerations”, for want of other terminology, could operate to displace privilege in an abuse of process proceeding.
[160] In my view, in the context of abuse of process, full answer and defence considerations, or full-answer-and-defence-like concerns, must be interpreted taking into account the gravity of an abuse of process for the integrity of the justice system. It is surely no stretch of the notion of ‘wrongful conviction’ to include conviction of an accused person where he or she is compelled to stand trial in circumstances sufficiently shocking as to violate those fundamental principles of justice which underlie the community’s sense of fair play and decency such as to amount to an abuse of process of the court. Accordingly, in terms of full answer and defence, an accused person must, as a fundamental right, be afforded a real and meaningful opportunity to present to the court proof of abuse of process.
[161] Where history may be shown to have modified, but not overtaken, the approach of the Ontario Court of Appeal in Campbell, is refined jurisprudential definition of abuse of process, emphasis of the absolute necessity prerequisite for any full-answer-and-defence exception to solicitor-client privilege, and the staged production control regime articulated in McClure.
[162] The Crown is quite right to be concerned that any expansive view of a full-answer-and-defence exception could risk setting aside privilege simply to permit fishing expeditions whenever a Charter breach is alleged and the relevant police actions followed upon the taking of legal advice. But that is not this case and a run-of-the-mill pre-trial Charter motion does not implicate the grave societal concerns associated with abuse of process.
[163] Here, there has been a prima facie demonstration of the alleged abuse in terms of multiple acts of police misconduct relating to the Part VI orders. Not only has the Crown fairly conceded many of these acts, and rightly described them as “serious” and of “pronounced seriousness” but by withdrawing reliance on the wiretap evidence and in turn various charges before the court, the prosecution has effectively acknowledged that the state misconduct has been such that it could not reasonably argue that admission of the evidence would not bring the administration of justice into disrepute.
[164] In these circumstances of demonstrated departure from the rule of law, without suggesting that it remains but a short step to proof of abuse, there has nevertheless been a substantial demonstration of state misconduct tending toward the inference of an undermining of the integrity of the judicial system.
[165] The examinations of Staff Sergeant Murray and Detective Sergeant Gregus have resulted in practical demonstration of the manner in which solicitor-client privilege can denude the record of any explanation or meaningful exploration by the defence exercising its right to secure information for the court relating to the state of mind of those said to be responsible for significant aspects of what is being advanced as an abuse of process arising from cumulative state misconduct.
[166] I recognize of course that almost by definition we accept that privilege may result in relevant information being withheld from the court. However, it has on balance been established with respect to important aspects of the alleged abuse, the handling of the BlackBerry messages and implementation of the Commissioner’s waiver(s), that the relevant information relating to the state of mind of state actors who have misconducted themselves is essential to proof of the overall alleged abuse of process and is unavailable from any other source. We have moved beyond helpful to necessary. The necessity is apparent now without awaiting the end of the motion. Further, on the unique facts here, I see no general or precedential chilling effect on Crown counsel/police advice consultations in the future.
[167] In a case where the selective employ of waiver by a government actor has prevented the applicants, and in turn the court, from meaningful examination of the gravity of constitutional misconduct, in particular relating to the potential for bad faith or improper motive, the applicants have, on what I consider to be the exceptional circumstances of this case, met the evidentiary threshold of demonstrating that production of the relevant communications between the Project Bond investigators and Crown counsel on these issues could be essential in terms of materially advancing proof of the state of mind component which is a critical, not marginal or collateral, constituent aspect of abuse of process.
[168] In light of the existing evidentiary basis, and meeting this necessity threshold, the applicants have, on balance, established that the relevant solicitor-client communications believed to exist could, in a material way, establish an abuse of process. This requires a second stage of court review which itself represents a significant invasion of solicitor-client privilege.
[169] It will be necessary for the court to review the relevant solicitor-client communications to determine whether in fact, considering the totality of the evidence, these communications are likely to significantly advance the record as to the intention of the relevant state actors in conducting themselves as they did with respect to the BlackBerry messages and the OPP Commissioner waiver(s). Disclosure of communications to the parties will only be warranted where, after review, the court is satisfied that the communications are likely to substantiate proof of the existence of abuse of process.
CONCLUSION
[170] Order accordingly.
HILL J.
DATE: October 22, 2013
COURT FILE NO.: CRIMJ(P) 754/10
DATE: 2013 10 22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN v. MIKE LEONARD RUTIGLIANO and BARRY PIERSON
BEFORE: HILL J.
COUNSEL: S. Fenton, E. Gottardi and L. Morgan, for the Crown
S. Hutchison, O. Wigderson and F. Schumann, for Mr. Rutigliano
J. Wilkinson, for Mr. Pierson
RULING RE SOLICITOR-CLIENT PRIVILEGE
HILL J.
DATE: October 22, 2013