ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NOS.: 10-R2034
10-R2035
10-SA5024
10-SA5020

DATE: 20151030

B E T W E E N:

HER MAJESTY THE QUEEN

John Semenoff for Her Majesty the Queen

• and -

ELDON HARDY

Dan Brodsky, for Eldon Hardy
Mark Ertel, for Michael Davies

HEARD: October 22, 2015

McNAMARA R.S.J.

DECISION ON MOTION

Overview

1The applicant, Eldon Hardy, has brought a motion to strike a guilty plea entered before myself on February 7, 2011. In support of that motion a detailed affidavit from Mr. Hardy was filed. Upon receipt and review of the affidavit the Crown then requested an affidavit be provided by Mr. Hardy’s former counsel, Mr. Michael Davies.

2That affidavit was in fact provided but an issue arose as to a certain portion of the affidavit. The applicant’s present counsel submits that some paragraphs should not be in the affidavit and remain protected by solicitor/client privilege.

3The motion on the privilege issue was argued before me on October 22, 2015.

Background Facts

4In September of 2009 the applicant was arrested and charged with one count of sexual assault in relation to one J.L. On October 2, 2009 Mr. Hardy was arrested and charged with sexually assaulting and administering a noxious substance to J.M. In March of 2010 the applicant was arrested and charged with six counts of breach of recognizance.

5The applicant retained Mr. Davies to represent him on all three sets of charges.

6The applicant had a preliminary inquiry in respect of the charges in July of 2010.

7On February 7, 2011 the applicant entered a guilty plea before me to one count of sexual assault in relation to J.M. and six counts of breach of recognizance. The charge in relation to J.L. was withdrawn by the Crown after the guilty pleas were entered. Following the plea, Crown Counsel indicated his intention to pursue a dangerous offender designation.

8On August 2, 2011 I ordered the applicant to undergo an assessment pursuant to s. 752.1 of the Criminal Code. Dr. Stephen Hucker delivered his report to the Court on December 12, 2011. On January 4, 2012, dates were set for the applicant’s dangerous offender hearing that was to commence May 14, 2012.

9On May 4, 2012 Mr. Davies brought an application to be removed as counsel of record for the applicant. That application was granted. On November 2, 2012 the applicant filed an application to strike his guilty plea. The applicant swore an affidavit in support of that application. As indicated above, the application to strike the guilty plea was adjourned pending receipt of an affidavit from Mr. Davies. The applicant provided a limited waiver of solicitor/client privilege to permit Mr. Davies to prepare a responding affidavit. The waiver provided by Mr. Hardy states in part as follows:

I only waive solicitor/client privilege in respect information that is strictly necessary to enable Mr. Davies to respond to my application to strike the guilty plea I entered before the Honourable Mr. Justice McNamara on February 7, 2011. I do not waive solicitor/client privilege in respect of any other matter for which Mr. Davies has represented me in the past.

10A draft copy of Mr. Davies’ affidavit was provided to counsel for the applicant on May 23, 2013. Counsel for the applicant identified a number of portions of the draft affidavit that they submitted were still protected by solicitor/client privilege. Mr. Davies’ affidavit contains 50 paragraphs. The contents of paragraphs 11, 16, 17, 18, 34 and 37 are the paragraphs in issue.

Position of the Parties

11On behalf of the applicant, his counsel, Mr. Brodsky, argues that the motion to strike the plea raises only two issues: firstly whether the plea was voluntary and secondly whether Mr. Hardy was improperly pressured to plead guilty.

12It is his submission that any waiver of privilege as between Mr. Hardy and his former counsel is limited to those issues, and anything beyond that is still protected by solicitor/client privilege. In his submission the affidavit goes beyond the two issues and discloses Mr. Hardy’s potential defence should the pleas be struck.

13He argues the law is clear that the waiver of privilege extends only to what is necessary to respond to the allegations in Mr. Hardy’s affidavit that are relevant to the two identified issues.

14Mr. Ertel, who appears for Mr. Davies, argues that Hardy’s affidavit is replete with allegations of breach of duty and professional misconduct, and that the law is clear that principals of fairness dictate that counsel against whom such allegations are made must be able to respond to each and every allegation that Mr. Hardy has put before the Court. He argues that as a result of the contents of the Hardy affidavit Mr. Davies professional reputation is in issue, and he has to have the opportunity to make a fulsome response.

Analysis

15The law applicable on this motion is not in any real dispute. A leading authority on the privilege issue in these circumstances continues to be the Ontario Court of Appeal Decision in Regina v. Dunbar 1982 3324 (ON CA), [1982] O.J. No. 581.

16In that case a co-accused, Bray, testified and in an attempt to account for some prior inconsistent statements he imputed misconduct to counsel who had represented him, suggesting they had pressured him to lie. In dealing with whether Bray had waived the privilege by his testimony imputing misconduct to his former counsel, Martin J.A. stated at paragraph 67:

67 Dean Wigmore states that when the client alleges a breach of duty by the attorney the privilege is waived as to all communications relevant to that issue: Wigmore on Evidence, (McNaughton Rev.), vol. 8 at p. 638. In McCormick on Evidence, 2d ed., the author states at p. 191:

As to what is a controversy between lawyer and client the decisions do not limit their holdings to litigation between them, but have said that whenever the client, even in litigation between third persons, makes an imputation against the good faith of is attorney in respect to his professional services, the curtain of privilege drops so far as necessary to enable the lawyer to defend his conduct. Perhaps the whole doctrine that in controversies between attorney and client the privilege is relaxed, may best be based upon the ground of practical necessity that if effective legal service is to be encouraged the privilege must not stand in the way of the lawyer's just enforcement of his rights to be paid a fee and to protect his reputation. The only question about such a principle is whether in all cases the privilege ought not to be subject to the same qualification, that it should yield when the evidence sought is necessary to attainment of justice.

17In a more recent decision, R. v. Youvarajah (2011) 2011 ONCA 654, O.J. No. 4610 the Ontario Court of Appeal opined further that even in circumstances where there is an express waiver of solicitor/client privilege that is not determinative of the scope of the waiver. Fairness considerations are also relevant. At paragraphs 146, 147 and 148 Simmons J.A. stated as follows:

146An express waiver of privilege will occur where the holder of the privilege (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive it: S & K Processors Ltd. v. Campbell Ave. Herring Producers Ltd., 1983 407 (BC SC), [1983] B.C.J. No. 1499, [1983] 4 W.W.R. 762 (S.C.), per McLachlin J.

147Despite these requirements, an implied waiver of solicitor-client privilege may occur where fairness requires it and where some form of voluntary conduct by the privilege holder supports a finding of an implied or objective intention to waive it. Importantly, a limited implied waiver may arise where a client alleges a breach of duty by his counsel.

148According to Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), sec. 2327 pp. 635-38, in relation to voluntary testimony, waiver can be implied where fairness demands it. One such circumstance arises where a client alleges misconduct on the part of his counsel:

s. 2327 Waiver in general; Voluntary testimony as a waiver.

What constitutes a waiver by implication?

Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege will cease whether he intended that result or not. He cannot be allowed after disclosing [page428] as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final. As a fair canon of decision, the following distinctions may be suggested:

(6) When the client alleges a breach of duty to him by the attorney, the privilege is waived as to all communications relevant to that issue.

(Emphasis added)

18Clearly then the Court is required to look closely at the allegations made by the client and the reply from his former counsel and determine whether the impugned paragraphs are relevant to the alleged breach of duty on the part of counsel. Are the impugned paragraphs strictly necessary to defend the allegations made as against the lawyer in question?

19Moving now to the paragraphs under attack, I start with paragraph 11. With relation to the first six words at paragraph 11 it was agreed at the outset of submissions that they ought to be removed and it is so ordered.

20I move now to the contents of paragraph 16, 17 and 18 of Mr. Davies’ affidavit.

21In Mr. Hardy’s affidavit, and specifically at paragraph 12, he indicates that before the preliminary inquiry he met with Mr. Davies on a couple of occasions, and on each occasion told Mr. Davies he was not guilty of the sexual assault charges and he says he explained in detail what really happened with J.L. and J.M. In paragraphs 16, 17 and 18 he states that Mr. Davies advised him initially that he thought the charges involving J.M. were “winnable” however later informed him that he felt J.M.’s testimony at the preliminary sounded like someone trying to tell the truth. He also says Mr. Davies told him he was likely to be convicted if the judge believed J.M. was too drunk to consent. He states he then countered that and pointed out to Mr. Davies that his opinion was based on the assumption that the judge would believe that there was sexual contact between J.M. and him. He states further that Mr. Davies made it clear that he thought the judge would find that sexual contact occurred.

22He then states that during another meeting at the jail Mr. Davies told him that he had attended a judicial pre-trial meeting and that the Crown had indicated it would seek a two year sentence on a guilty plea to the charge involving J.M. and would withdraw the other sexual assault charges. He also stated that the Crown told him they would seek a five year sentence if he was convicted after trial, and that a dangerous offender application could be a consideration. He says he instructed Mr. Davies to arrange a guilty plea even though he was not guilty of sexually assaulting J.M.

23In paragraphs 16, 17 and 18 of his affidavit, Mr. Davies gives a different version of events. He indicates that prior to the preliminary, first in respect of J.L., Mr. Hardy had advised him there had been sexual activity but that it was consensual. Moving to J.M., he indicates he was instructed by Mr. Hardy as to the circumstances of how J.M. wound up at his apartment and then gives some detail of events at the apartment including the physical interaction between them.

24In my view Mr. Hardy in his affidavit disclosed details of specific confidential communications between himself and his then lawyer as to the circumstances of the J.M. interaction within the context of the overall issue of whether or not he was improperly pressured to plead guilty or was misinformed. That in my view waives privilege of the communications between Mr. Hardy and his former counsel related to that subject matter. The issue having been raised by Mr. Hardy the Court will require Mr. Davies’ input on these points in order to rule on the issue.

25In a similar vein it is my view that the allegations in paragraphs 34 and 37 of Mr. Davies’ affidavit are properly before the Court. Their relevance relates, again, to the overall issues that will be before the Court on the motion namely whether Mr. Davies improperly pressured Mr. Hardy to continue with his guilty plea, and whether or not Mr. Hardy was misinformed by counsel as to the intentions of the Crown and in particular the likelihood of the Crown seeking the Attorney General’s consent to pursue a dangerous offender application.

26In sum then, other than the brief deletion agreed to in paragraph 11, the whole of paragraphs 16, 17, 18, 34 and 37 in Mr. Davies’ affidavit shall remain. The Court will require both versions of what occurred in these critical conversations in order to weigh the evidence and make a determination.

Mr. Justice James E. McNamara

Released: October 30, 2015

COURT FILE NOS.: 10-R2034
10-R2035
10-SA5024
10-SA5020