SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-15-90000149-00MO
DATE: 20150731

RE: R. v. Faraz Shah

BEFORE: Molloy J.

COUNSEL: K. Yeh and F. Alibhai, for the Crown
C. Morris, for Faraz Shah

HEARD: July 27 and 30, 2015

ENDORSEMENT

The Application

[1] The Crown seeks direction from the Court as to how to deal with a possible issue of solicitor-client privilege that may arise in the execution of a search warrant allowing police to search the contents of a cell phone seized from a person believed by police to be a drug dealer.

Background

[2] Since the winter of 2014, Faraz Shah has been the subject of a police investigation with respect to possession of firearms and drug trafficking. The investigation included two tracking warrants (with respect to Mr. Shah’s car) and a DNR warrant to obtain the telephone numbers associated with all calls placed and received by a cell phone associated to Mr. Shah.

[3] On March 26, 2015 police executed a search warrant at Mr. Shah’s apartment in Markham. Mr. Shah was there at the time and was arrested. In the apartment, police found: 5.5 kg of marijuana; 4.8 kg. of cocaine; 411 g. of hashish; 1732 tablets of MDMA; 1 g. of heroin; digital scales; a drug press; a vacuum sealer; and packaging material. When Mr. Shah was arrested, he had four cell phones on his person, and they were seized. One of those phones (an LG cell phone) was the one that had been the subject of the DNR warrant.

[4] A cursory search of the LG phone was conducted as an incident to arrest. The officer who conducted that brief search, D.C. Mavrou, noted two text messages from March, 2015: one on March 20, 2015 from a person shown on the phone as “Tanya;” and the other on March 26, 2015 (the same day as the arrest) from a person shown on the phone as “Simon.”

[5] The exchange with Tanya was as follows:

Tanya: you going to be around?

Answer: Ya. Around 9.

Tanya: OK ill let you know what cool.

Tanya: I need 5

[6] The exchange with Simon was as follows:

Simon: Hey you around today

Answer: Ya. Can meet around 6. Is that cool

Simon: Perfect 3 pls

[7] D.C. Mavrou did no further search of the LG phone. In particular, he did not check to see what phone number the person named Simon was calling from. The other three phones are password protected.

[8] D.C. Bill Wolfe of the O.P.P. Provincial Weapons Enforcement Unit was the officer who arrested Mr. Shah on March 26, 2015. At the time of his arrest, Mr. Shah told D.C. Wolfe that he wished to contact a lawyer and that the business card for his lawyer was located in his pick-up truck. The business card found in the truck was that of Simon King, with an address at 37 Prince Arthur Avenue and three phone numbers (landline, fax and cell). The cell number is 416-738-0775. This information was conveyed to the officer escorting Mr. Shah to the police station while they were still in transit and Mr. Shah confirmed that Simon King was his lawyer.

[9] Mr. Shah did initially retain Mr. King to act on his behalf in relation to the charges laid against him following the execution of the search warrant and his arrest.

[10] At the time all of this was happening, the investigating officers who had been dealing with obtaining warrants and reviewing information disclosed by those warrants did not make the connection between Simon King, the lawyer, and a frequent number that had shown up on the phone usage records for the LG phone as a result of the DNR warrant.

[11] The activity on Mr. Shah’s LG cell phone was tracked from January 6, 2015 to March 3, 2015. During that time, there were 78 contacts between his phone and phone number 416-738-0775, with the subscriber name and address being Simon King at an address on College Street. This number was the sixth most frequent number connecting with Mr. Shah’s phone log during this period. The vast majority of the contacts appear to be text messages, although there are two contacts that appear to be connected calls: one for 67 seconds and one for 18 seconds.

[12] Still unaware of the possible connection between Mr. Shah’s lawyer and the frequent caller on his LG phone, the police sought and obtained a search warrant to examine the phones seized from Mr. Shah at the time of his arrest. That warrant was issued on April 9, 2015. However, to date the warrant has not been executed and there had been no further search of the LG phone. Before that search proceeded, D.C. Wolfe realized that the number for the Simon King from the DNR warrant information on the LG phone was the same as one of the numbers for Simon King, Mr. Shah’s lawyer. As a result of making that connection, no further steps were taken to search the phone and the Crown brought this application for directions.

The position of the parties

[13] Mr. King is in the process of getting off the record as counsel for Mr. Shah. Mr. Shah was represented on this application by new counsel, Mr. Morris. Solicitor-client privilege, if it exists, belongs to the client and it is up to the client to either claim or waive it. Mr. King therefore has no legal interest in this issue, and asserts none.

[14] There are a number of co-accused with Mr. Shah on this indictment. They have indicated that they take no position on this issue.

[15] The Crown submits that this application was brought out of an abundance of caution and that no basis has been established for any claim for solicitor-client privilege. The Crown further submits that in the absence of an affidavit from Mr. Shah asserting that there are communications of a privileged nature on the phone, I should make an order that the police are permitted to proceed with their examination of the phone pursuant to the warrant. The Crown takes the position that any content on the phone should be vetted by the Crown before disclosure is made to the defence, in order to protect confidentiality.

[16] Counsel for Mr. Shah asserts that there is a possibility that the examination of the phone will result in a breach of solicitor-client privilege. However, without actually examining the records, counsel is unable to say whether that privilege does in fact arise. Defence counsel submits that a copy should be made of the contents of the phone and that copy should be provided to the defence before it is seen by the police or the Crown. If no privilege is asserted, that is the end of the matter and the police can proceed to examine the phone. If privilege is asserted with respect to any of the communications on the phone, a decision would then be made by the Court as to whether privilege is established.

Is there a basis for concern about solicitor-client privilege?

[17] Mr. Morris relies on the Supreme Court of Canada’s decision in Lavallee, Rackel & Heintz v. Canada (Attorney General)[^1] for the general principles to be applied in this situation. In that case, the Supreme Court of Canada considered whether the procedure provided in the Criminal Code for dealing with search warrants to seize files in a solicitor’s office violated the Charter. The Supreme Court held that the Code did not provide sufficient protection to ensure that solicitor-client privilege was not breached, even if inadvertently. The Court also set out guidelines to be followed by judges dealing with these matters at common law.

[18] In the case before me, the Crown takes the position that unless and until there is an actual assertion from Mr. Shah that there are solicitor and client communications on his phone, the principles in Lavalee do not arise.

[19] I do not agree. Admittedly, the fact situation in Lavalee is not exactly the same. The presumption that a file kept in a solicitor’s office will likely contain matters protected by privilege is an obvious one and it is easy to understand why there would be no need for the client (or the lawyer) to present evidence that there are privileged communications in the file.

[20] However, in the case now before me, it is established that Simon King was Mr. Shah’s lawyer and it is also established that there were actual communications between Mr. Shah’s phone and a phone number set out on Mr. King’s business card. In my view, that is sufficient to give rise to a concern and is sufficient to require that the utmost care be taken to ensure that any privilege is protected. It is important to bear in mind the cautionary words of the Supreme Court in Lavalee (at para 24) as follows:

It is critical to emphasize here that all information protected by the solicitor-client privilege is out of reach for the state. It cannot be forcibly discovered or disclosed and it is inadmissible in court. It is the privilege of the client and the lawyer acts as a gatekeeper, ethically bound to protect the privileged information that belongs to his or her client. Therefore, any privileged information acquired by the state without the consent of the privilege holder is information that the state is not entitled to as a rule of fundamental justice.

[21] Mr. Morris was candid in conceding that his client is not able to say that his only relationship with Mr. King was a solicitor and client one, such that any communications between them were necessarily related to that relationship. They had conversations about various things, some of which were related to the fact that Mr. King acted as legal counsel for Mr. Shah, and some of which were not. Without reviewing the content of the phone, it is not possible to say whether the privilege will arise. However, in my view, these circumstances require that we err on the side of caution.

[22] The Crown points out that the text messages with the person identified as “Simon” on March 26 which were noted by D.C. Mavrou, do not appear to be a solicitor and client communication. I agree. However, apart from the coincidence of first names, there is no evidence that the “Simon” who sent those messages is in fact Simon King, the lawyer. Further, even if this was the same person as Mr. Shah’s lawyer, Simon King, the fact that one message was not the subject of privilege does not mean that all of the other communications are also not privileged.

[23] I am therefore of the view that there is a real risk of breaching solicitor-client privilege if the phone is examined in the first instance by the police or the Crown. Precautions must be taken to ensure this does not happen, in accordance with the general principles in Lavalee.

Confidentiality rights of third parties

[24] The Crown argued that the content of the phone should first be vetted by the Crown to ensure that there are no confidentiality rights that would be violated by disclosure to Mr. Shah. I cannot see how such third party rights could possibly arise. This was Mr. Shah’s phone. No third party could possibly have an interest in it. The Crown also suggested that there could be information in the phone that was confidential with respect to Mr. Shah himself. There is no issue about such material being seen by his own counsel with his consent. I see no merit in this objection.

Who should make a copy of the content of the phone?

[25] On the initial day of the hearing before me, the Crown proposed that police officers in the forensic unit should first make a copy of the content of the phone before providing this disclosure to the defence. The defence submitted that this first step should be carried out by a neutral person. I had no evidence before me to determine whether it was even possible for police to download the content of the phone onto some device without reading, or at least seeing, that content. My concern was that if police saw information protected by solicitor-client privilege, even if inadvertently, the damage would be done.

[26] The importance of making the decision about the existence of the privilege without the state seeing the privileged material was emphasized by the Supreme Court in Lavalee, as follows (at para. 44):

I also find an unjustifiable impairment of the privilege in the provision in s. 488.1(4)(b), which permits the Attorney General to inspect the seized documents where the applications judge is of the opinion that it would materially assist him or her in deciding whether the document is privileged. This particular aspect of s. 488.1 was disapproved of by the Law Reform Commission of Canada who felt that “granting the Crown access to confidential communications passing between a solicitor and his client would diminish the public’s faith in the administration of justice and create a potential for abuse” (p. 60). See Law Reform Commission of Canada, Report 24, Search and Seizure (1984), Recommendation Seven, at p. 58. I agree. As Goudge J.A. stated at para. 40 of his reasons in Fink, supra: “The effect of this provision is the complete loss of the protection afforded by the very privilege that may subsequently be determined to apply.” It should be noted however that while the substantive aspect of the privilege is irremediably lost by operation of s. 488.1(4)(b), its evidentiary component remains untouched and continues to protect the privileged documents from being entered into evidence. See Borden & Elliot, supra, at p. 343. However, in my opinion and as Southey J. recognized in that case, “[i]t would be small comfort indeed” for the privilege holder that the law prevents the introduction of his or her confidential documents into evidence when their contents have already been disclosed to the prosecuting authority. Ultimately, any benefit that might accrue to the administration of justice from the Crown’s being in a better position to assist the court in determining the existence of the privilege is, in my view, greatly outweighed by the risk of disclosing privileged information to the state in the conduct of a criminal investigation. I also cannot understand the logic of the argument that the Crown should be trusted not to use information obtained under that provision if it subsequently proved to have been the proper subject of a privilege. If, as would be the case under this provision, the conduct of the Crown examining the documents would have been entirely lawful, it is difficult to understand why the Crown should then refrain from making use of such knowledge lawfully acquired. In the end, this provision is unduly intrusive upon the privilege and of limited usefulness in determining its existence.

[27] Given this concern, I adjourned the matter for two days so that the Crown could make inquiries about the mechanics and technology involved in creating a copy of the contents of the phone. On the return date, the Crown agreed that the download should be done by an independent third party expert under an undertaking to maintain confidentiality. Apparently, it is not necessary to actually read everything that is on the phone in order to accomplish the download of its content. However, in the course of doing the copying, some of the material in the phone will inevitably be seen. Therefore, it is possible that a police officer might see privileged material while copying the content of the phone. Accordingly, I agree that the copying should be done by a neutral third party. The expert proposed by the Crown is acceptable to the defence.

The procedure to be used

[28] Having found the procedure in the Criminal Code to be inadequate, the Supreme Court of Canada in Lavalee provided the following guidance for dealing with such matters at common law (at para 49):

In the interim, I will articulate the general principles that govern the legality of searches of law offices as a matter of common law until Parliament, if it sees fit, re-enacts legislation on the issue. These general principles should also guide the legislative options that Parliament may want to address in that respect. Much like those formulated in Descôteaux, supra, the following guidelines are meant to reflect the present-day constitutional imperatives for the protection of solicitor-client privilege, and to govern both the search authorization process and the general manner in which the search must be carried out; in this connection, however, they are not intended to select any particular procedural method of meeting these standards. Finally, it bears repeating that, should Parliament once again decide to enact a procedural regime that is restricted in its application to the actual carrying out of law office searches, justices of the peace will accordingly remain charged with the obligation to protect solicitor-client privilege through application of the following principles that are related to the issuance of search warrants:

1. No search warrant can be issued with regards to documents that are known to be protected by solicitor-client privilege.

2. Before searching a law office, the investigative authorities must satisfy the issuing justice that there exists no other reasonable alternative to the search.

3. When allowing a law office to be searched, the issuing justice must be rigorously demanding so to afford maximum protection of solicitor-client confidentiality.

4. Except when the warrant specifically authorizes the immediate examination, copying and seizure of an identified document, all documents in possession of a lawyer must be sealed before being examined or removed from the lawyer’s possession.

5. Every effort must be made to contact the lawyer and the client at the time of the execution of the search warrant. Where the lawyer or the client cannot be contacted, a representative of the Bar should be allowed to oversee the sealing and seizure of documents.

6. The investigative officer executing the warrant should report to the justice of the peace the efforts made to contact all potential privilege holders, who should then be given a reasonable opportunity to assert a claim of privilege and, if that claim is contested, to have the issue judicially decided.

7. If notification of potential privilege holders is not possible, the lawyer who had custody of the documents seized, or another lawyer appointed either by the Law Society or by the court, should examine the documents to determine whether a claim of privilege should be asserted, and should be given a reasonable opportunity to do so.

8. The Attorney General may make submissions on the issue of privilege, but should not be permitted to inspect the documents beforehand. The prosecuting authority can only inspect the documents if and when it is determined by a judge that the documents are not privileged.

9. Where sealed documents are found not to be privileged, they may be used in the normal course of the investigation.

10. Where documents are found to be privileged, they are to be returned immediately to the holder of the privilege, or to a person designated by the court.

Solicitor-client privilege is a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law. While the public has an interest in effective criminal investigation, it has no less an interest in maintaining the integrity of the solicitor-client relationship. Confidential communications to a lawyer represent an important exercise of the right to privacy, and they are central to the administration of justice in an adversarial system. Unjustified, or even accidental infringements of the privilege erode the public’s confidence in the fairness of the criminal justice system. This is why all efforts must be made to protect such confidences.

[emphasis added]

[29] The Crown and the police have already taken the first appropriate step. They did not examine the content of the phone, but rather took steps to notify all parties of the potential problem and placed the issue before the Court for direction. Both the police officers and the Crown are to be commended for the ethical position taken.

[30] In order to prevent inadvertent disclosure of privileged communications, the contents of the LG cell phone should be copied by an independent expert retained by the Crown. I therefore direct that the Crown turn over the phone in question to Steve Rogers of Digital Evidence International Inc., upon Mr. Rogers signing an undertaking that he will make two copies of the entire contents of the phone and that he will do so without reading or reviewing that content except as is necessary to do the copying, and will not disclose to any person any of the content he does see.

[31] Mr. Rogers shall create two identical copies of the contents of the phone in PDF format and Microsoft Excel format on a USB flash drive, or any other accessible device, (one labelled “Court Copy” and the other labelled “Defence Copy”) and shall place both copies and the phone in a sealed envelope and deliver same to the Crown.

[32] Upon receipt of the sealed envelope, the Crown shall deposit same with the Criminal Trial Office and advise defence counsel that this has been done. The Defence Copy shall be provided to Mr. Morris by the Court staff.

[33] Defence counsel shall have 30 days from the date of receipt of the copy to advise the Crown and the Court in writing, whether or not solicitor-client privilege is asserted for any portion of the material on the phone.

[34] If there is no privilege asserted, the court staff shall turn over to the Crown the remaining copy and the phone.

[35] If a claim for privilege is asserted, the Court Copy and the phone shall remain in the custody of the Court until a judge determines whether a valid privilege claim has been established. The Crown is not entitled to see the material for which privilege is asserted unless the Court determines there is no valid privilege claim. However, the Crown shall be entitled to notice of the application to determine the privilege issue. Depending on the nature of the material and the claim asserted, it might be useful for the Court to have amicus curiae retained to assist the Court on this issue. I leave to the discretion of the judge hearing that issue whether or not to do so. I also leave it to that judge to determine the procedure to be followed in making the decision and the appropriate disclosure following the decision.

[36] I wish to thank all counsel for their courtesy and professionalism in dealing with this matter. If there are any difficulties implementing this order, I may be contacted through the Criminal Trial Office.

MOLLOY J.

Date: July 31, 2015

[^1]: Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 SCR 209, 2002 SCC 61