Court File and Parties

COURT FILE NO.: CR14-2310 DATE: 2016/07/18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Gurpreet Ronald and Bhupinderpal Gill Defendants

Counsel: Brian Holowka and Jason Neubauer, for the Crown Michael Smith and Jessica Abou-Eid, for the Defendant, Gurpreet Ronald James Harbic and Robert Harbic, for the Defendant Bhupinderpal Gill

HEARD: June 20, 2016

Ruling on solicitor client privilege

Parfett J.

[1] Defence counsel for Ms. Ronald requests that her former counsel, Mr. Bruce Engel, be prohibited from testifying on the basis that his information is covered by solicitor/client privilege.

Background

[2] The history of how Mr. Engel came to be called as a Crown witness is pertinent to this application.

[3] Ms. Ronald was arrested for first degree murder on April 8, 2014. She called Mr. Engel from the police station after receiving his name from her family lawyer. She asked Mr. Engel to make several telephone calls on her behalf, including a call to Mr. Bhupinderpal Gill – the co-accused. At that time, Mr. Gill had not been arrested in connection with the death of his wife.

[4] Unbeknownst to Mr. Engel, Mr. Gill’s phone calls were being intercepted by police and they became aware of the fact of the telephone call, although it appears, not its content.

[5] Some months later, on August 6, 2014, police called Mr. Engel in order to arrange an interview. By this time, Mr. Gill had also been arrested and charged with first degree murder. Mr. Engel testified that although the police did not specifically state what they wanted to talk to him about, he was fairly certain it had to do with the fact he called Mr. Gill at Ms. Ronald’s behest.

[6] Prior to going to the police station, Mr. Engel stated he obtained a verbal waiver of solicitor/client privilege from Ms. Ronald in order to talk to police about the telephone conversation with Mr. Gill.

[7] The conversation with police was videotaped and a transcript was produced in the course of this application. The police established at the outset that Mr. Engel was not and never had been Mr. Gill’s legal counsel. Mr. Engel made it clear that he was very limited in what he could say due to solicitor/client privilege. He stated that he thought the police would be interested in his call to Mr. Gill. Then he indicated that all he could tell police was that he made a call to Mr. Gill at the direction of Ms. Ronald in order to obtain background information.

[8] Police made it equally clear that what they wanted to know about was the content of the call to Mr. Gill. In their view, the fact of the call demonstrated a relationship between Mr. Gill and Ms. Ronald.

[9] Ultimately, Mr. Engel told the police that at Ms. Ronald’s request he called Mr. Gill in order to get some telephone numbers. Mr. Gill asked Mr. Engel at one point whether he should contact the police. Mr. Engel was quick to tell Mr. Gill that he could not give him any legal advice and he should contact his own counsel.

[10] The police asked Mr. Engel whether he knew on April 8th that Mr. Gill was the deceased’s husband. He indicated that he did not. It was suggested to him that Ms. Ronald failed to tell him that information. Mr. Engel did not answer the question and said he could not get into that matter.

[11] On more than one occasion, Mr. Engel repeated that the call demonstrated there was a relationship between Mr. Gill and Ms. Ronald but that the existence of the relationship was well known. In addition, he added that in his view the contents of the conversation with Mr. Gill are innocuous. However, he stated he would not reveal more without discussing any possible solicitor/client issues with his client.

[12] On August 11th, 2014 Crown counsel advised Mr. Engel that they wanted to know more about his conversation with Mr. Gill on April 8th. Thereafter, Mr. Engel obtained his own counsel and there followed an ongoing dialogue between Mr. Engel’s counsel and the Crown about whether, and under what circumstances, he could remain as counsel of record for Ms. Ronald.

[13] One possibility that was discussed was that Mr. Engel’s evidence with respect to the telephone call could be elicited by the Crown by way of an admission. In order to facilitate that admission, a written waiver was obtained from Ms. Ronald on August 21st, 2014 after she consulted with independent counsel. After obtaining this waiver, Mr. Engel provided Crown counsel with a memo setting out what he could say in relation to the telephone call. The contents of the memo essentially mirror what he told police on August 6th with the addition of a few minor details.

[14] A bail hearing was set for August 26th, 2014 and on the first day Crown brought an application to remove Mr. Engel as counsel of record. Mr. Engel was anxious to conduct the bail hearing and much of the discussion that occurred between August 26th and 27th revolved around whether there could be an agreement regarding what Mr. Engel’s evidence in relation to the telephone call with Mr. Gill would be and what inferences the Crown could draw from that evidence. The hope was that if this issue could be settled, the bail hearing could take place and the ultimate issue of whether Mr. Engel was in a conflict of interest could be dealt with at a later date.

[15] No agreement in respect of Mr. Engel’s evidence was concluded and ultimately the judge ruled that he was in a conflict of interest position and could not continue as counsel.

Issues

[16] At issue in this application is whether:

• the waiver of August 6th, 2014 was valid;
• was part, or all, of the information provided by Mr. Engel on August 6th covered by solicitor/client privilege; and
• whether the waiver of August 21st, 2014 is valid or simply moot.

Positions of Counsel

[17] Mr. Smith’s position is that the waiver of August 6th is not valid because it was verbal, no independent legal advice was obtained by Ms. Ronald prior to giving the waiver, and it is unclear what the waiver covered. He also argued that all of the information provided by Mr. Engel was covered by solicitor/client privilege including the contents of his conversation with Mr. Gill. Finally, Mr. Smith contended that the August 21st waiver is not valid because it came into being in order to facilitate Mr. Engel remaining as counsel of record for the purpose of the bail hearing. When Mr. Engel was removed as counsel, the purpose for the waiver was gone and consequently, the waiver itself was no longer in effect.

[18] Mr. Harbic argued that there was no evidence that the waiver obtained on August 6th, 2014 was an informed waiver and therefore, it could not be valid.

[19] The Crown asserted that Mr. Engel obtained a valid waiver prior to speaking to police on August 6th, 2014. Mr. Engel knew what the subject-matter of the police interest was likely to be and that is what the waiver he obtained from Ms. Ronald was about. Crown counsel also argued that no independent legal advice was required for this waiver as there was no dispute between Mr. Engel and Ms. Ronald at that time. Crown counsel also contended the solicitor/client privilege only attached to communications between a solicitor and his client. Therefore, the contents of the conversation with Mr. Gill were not covered by the privilege. In Crown’s opinion, the only part of the information provided by Mr. Engel that was covered by the privilege was the fact that he called Mr. Gill at Ms. Ronald’s direction. Finally, Crown argued that given the verbal waiver of August 6th is valid, the written waiver of August 21st is moot. He also argued that if it is not moot, then it too is valid and continues in full force and effect. Moreover, Crown counsel stated the failure of the discussions regarding the admission of Mr. Engel’s evidence cannot be found to impact the validity of the written waiver.

Legal Principles

1. Solicitor-client privilege

[20] The following principles apply to solicitor-client privilege:

• All information protected by the solicitor/client privilege is out of reach for the state. It cannot be forcibly disclosed and is inadmissible in court; [1]
• It is the privilege of the client and can only be waived by the client [2];
• The existence of the privilege is not terminated when the relationship between the solicitor and client ends [3];
• The privilege is part of and fundamental to the Canadian legal system [4];
• The privilege is not absolute and is subject to clearly defined exceptions. However, it must be as close to absolute as possible to ensure public confidence and retain relevance [5]; and
• Not all communications between a lawyer and his client are privileged. In order for a communication to be privileged, it must arise from communication between a lawyer and the client where the latter seeks lawful legal advice or assistance [6];

2. Waiver

[21] These principles apply to the issue of waiver:

• A waiver can be explicit or implicit depending on the circumstances of the case [7];
• A waiver can be limited to a defined subject matter [8];
• A waiver may not serve to remove a conflict of interest in certain circumstances [9];
• A waiver may be vitiated where there is no independent legal advice provided on the right to refuse to sign it [10];
• There are circumstances when a waiver may be revocable and others where it is not [11]; and
• Where evidence or information has been provided to a third party on the strength of a waiver, that waiver cannot subsequently be altered or revoked. [12]

Analysis

[22] This application is brought by Defence counsel for Ms. Ronald. If he is correct that one or both the waivers are invalid, then by default any information Mr. Engel provided to police that is covered by solicitor/privilege is inadmissible.

[23] It is important to note that Ms. Ronald bears the onus of demonstrating that the waivers provided by her were not valid. The evidentiary record on this motion was sparse. Mr. Engel testified, but he was careful – as is appropriate – not to stray into areas covered by solicitor/client privilege. The court was not provided with the written waiver of August 21st. In addition, no evidence was elicited from Mr. Engel concerning his conversation with Ms. Ronald prior to obtaining the first verbal waiver.

[24] In my view, the lack of a fulsome evidentiary record hampered the decision-making process.

[25] Mr. Harbic urged the court to find that the verbal waiver of August 6th was not informed because there was no evidence that it was informed. With respect, I cannot make that finding. If the verbal waiver was not informed, it was incumbent on counsel for Ms. Ronald to demonstrate that fact and he did not. It is also noteworthy that counsel for Ms. Ronald never suggested that the waiver was not informed.

[26] Mr. Smith argued that the extent of the verbal waiver is unclear and that fact should vitiate it. I disagree. Mr. Engel’s evidence was clear that he strongly suspected the police were interested in the telephone call he made to Mr. Gill and he obtained a waiver permitting him to provide information in relation to that call to police.

[27] Mr. Smith also argued that the waiver ought to be vitiated by the fact there was no independent legal advice (ILA) obtained. In my view, this is his strongest argument. I do not agree with Crown counsel that no ILA was necessary at this point in the proceedings given there was no dispute between Mr. Engel and Ms. Ronald. Solicitor/client privilege is fundamental to the legal system and if it is going to be waived, the client ought to receive independent legal advice prior to doing so. There is always potential in such situations for counsel and the client to find themselves in adverse positions, making such advice necessary. The case law indicates clearly that a lack of ILA will vitiate a waiver and I am bound to follow it. Consequently, I find that the waiver of August 6th, 2014 was not valid.

[28] However, in my view the matter does not end there because there is the waiver of August 21st. That waiver covers the same matters as the August 6th waiver. Although there are some additions in the memo Mr. Engel provided to Crown, those differences do not materially affect the nature of the information Mr. Engel would provide to the court. This waiver was in writing and obtained after consultation with an independent counsel.

[29] Its validity is not affected by the fact that it was obtained as part of an effort to maintain Mr. Engel’s position as counsel for the purpose of the bail hearing. Mr. Smith was unable to point to any case law that suggested a waiver could be obtained for a limited purpose only. Indeed, the case law indicates the opposite: once a waiver is obtained, it can be used for any part of the same proceeding. Consequently, the written waiver is valid.

[30] Mr. Smith also argued that his client revoked any waiver assuming there is a valid waiver. I am in agreement with Crown counsel that this is the type of case where a waiver cannot be revoked. The information covered by the waiver has been disclosed. It has lost all its confidentiality. It is relevant and probative evidence and therefore admissible. There is no undoing what has been done.

[31] Mr. Smith’s suggestion that the fact there is other evidence in relation to the existence of a relationship between Mr. Gill and Ms. Ronald both before and after Jagtar Gill’s death and therefore, the evidence is unnecessary is not persuasive. It is not the court’s role in these circumstances to tell the Crown how to call its case. If they feel this evidence, which is both relevant and probative, is necessary to their case that is their decision and I will not interfere with it.

[32] The final question is what information is covered by solicitor/client privilege? In my view, solicitor/client privilege only covers the communication between Mr. Engel and Ms. Ronald wherein she directs him to call Mr. Gill and fails to tell him Mr. Gill is the husband of the deceased. The remaining information concerning the content of the call with Mr. Gill is not covered by the privilege. There is no confidential relationship between Mr. Gill and Mr. Engel. The fact that the conversation takes place at Ms. Ronald’s direction does not extend the umbrella of privileged communications to Mr. Gill.

Conclusion

[33] The application is dismissed. Mr. Engel can testify to the information contained in his interview with police and the additional information provided in the memo of August 21st, 2014.

Madam Justice Julianne Parfett

Released: July 18, 2016

Cited Authorities

[1] Lavallee v. Canada (AG) at para. 24 [2] Ibid. See also McClure at para. 37. [3] McKee at para. 8. See also Blank v Canada at para. 37. [4] R. v. McClure at para. 17. [5] McClure at paras. 34-35. See also Mayer v. Osborne at para. 178. [6] McClure at paras. 36-37. [7] Mayer v. Osborne at para. 182 [8] Bone v. Person at para. 10 [9] R. v. Robillard at para. 6. [10] Ibid. [11] R. v. Brown at para. 15. [12] Bone at para. 11-12. See also Mayer at para. 185. See also ProSuite Software at para. 32.