Court File and Parties

COURT FILE NO.: CR-13-00475G DATE: 2016-09-26 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – DANIEL KENNETH PORTER Applicant/Defendant

Counsel: Marcella Henschel, for the Crown Antia Kwan, for the Defendant

HEARD: August 29-31, September 2, 2016

REASONS FOR DECISION

GILMORE J.:

Overview

[1] The accused (Mr. Porter) is charged with failing to stop at the scene of an accident knowing that bodily harm or death had been caused to the victim, pursuant to s. 252 (1.3) (b) of the Criminal Code.

[2] The charge arises out of an incident that occurred on the evening of January 12, 2013, in which a pedestrian was struck and killed on Kennedy Road in Markham. The vehicle fled the scene.

[3] Mr. Porter sought legal advice about his involvement in the accident. He then turned himself into police and gave them information about the location of the vehicle he had been driving that evening.

[4] In this application, Mr. Porter seeks to exclude all evidence obtained by the Crown pursuant to ss. 7 and 24(1) of the Canadian Charter of Rights and Freedoms.

[5] The defence alleges that Mr. Porter’s lawyer at the relevant time, Ms. Elme Schmid, breached his solicitor-client privilege without an explicit or implied waiver. By continuing to prosecute based on evidence obtained from such a breach, the Crown deprives Mr. Porter of his right to a fair trial under s. 7 of the Charter. The remedy in such a case is to exclude all of the evidence obtained from the breach.

[6] The Crown’s position is that Ms. Schmid’s advice to Mr. Porter was competent and cautious. Mr. Porter has conveniently fabricated a scenario in which he alleges he was forced to turn himself in to police. In any event, the remedy sought by the defence cannot be obtained because it relies on the conduct of a non-state actor. Further, the actual remedy is a stay which may only be granted in the clearest of cases. This is not such a case.

[7] Given that this matter is scheduled to proceed by way of a jury trial commencing October 12, 2016, for three to four weeks, I felt it important to render my decision immediately following the submissions of counsel on September 2, 2016. I advised counsel that the application was dismissed on the grounds that there was no breach of solicitor-client privilege. I endorsed that I would be making a finding that Mr. Porter’s evidence on the application was neither credible nor reliable. Further, if I was wrong with respect to the breach of solicitor-client privilege, neither the case law nor the evidence supports a Charter remedy or a common law remedy in the circumstances.

[8] The following are the reasons with respect to my ruling made on September 2, 2016.

Background Facts

[9] Crown and defence have agreed on many of the background facts of this case. They are reproduced below from the Crown’s factum, from paras. 4-12, 18-28, 35-47:

4. The deceased, seventy-one year-old Kunning Yu, lived at an apartment complex located at 7373 Kennedy Road, Markham, Ontario with his wife. 7373 Kennedy Road is at the southeast corner of Dennison Street and Kennedy Road. On Saturday, January 12, 2013 Mr. Yu left his home at approximately 7:00 p.m. to attend a plaza across the street to pick up gifts for a trip he and his wife were planning to take to China the next morning. Surveillance video footage obtained from the Dennison Plaza established that after leaving his home, Mr. Yu walked across the Kennedy Road northbound lanes when he stepped off the curb and into the path of a southbound vehicle.
5. The vehicle was travelling in the southbound passing lane on Kennedy Road, south of Dennison Street, and north of Gorvette Road, Markham. At the time he was struck Mr. Yu was opposite Dennison plaza located on the west side of Kennedy Road. He was not in a crosswalk or at a controlled intersection. Mr. Yu was wearing a light blue long sleeved shirt, and dark pants, as is evident in photographs taken at the scene. The video surveillance footage appears to show that there was brief pre-collision braking, but no post collision braking. The vehicle, a light colored sedan, did not slow or stop following the impact with Mr. Yu. Civilian witness Tak Shun Miu described that the vehicle was travelling fast, and estimated the speed at approximately 80 km per hour.
6. It was nighttime. The roads were clear, flat and level. Kennedy Road was damp, but not wet. Driving conditions were good and the area, a heavily populated urban area, was well lit.
7. A reconstruction report prepared by P.C. Veenstra determined that the vehicle was travelling at approximately 59-70 kms per hour at the time of the impact. The posted speed limit was 60 km/hour. P.C. Veenstra concluded that the vehicles’ front left side front bumper struck Mr. Yu on the legs. The contact by the front bumper caused compound fractures to Mr. Yu’s tibia and fibula of both legs (bumper fractures). Because Mr. Yu was struck below his centre of mass, he was scooped up onto the hood of the vehicle and slammed into the windshield. After contacting the windshield, Mr. Yu was projected airborne and accelerated forward by the southbound vehicle. Mr. Yu travelled in the air before he struck the ground and tumbled onto the roadway, approximately thirty meters south of the area where he was struck.
8. Mr. Yu suffered catastrophic injuries including multiple palpable comminuted fractures of the skull, lacerations of the aorta in two places, tearing of the lungs and bronci in two places, broken ribs, a broken clavicle, compound fractures of the tibia and fibula of the left and right legs, a fracture to the right humerus, a fracture to the hyoid bone, multiple cervical vertebral fractures, and severe damage to the brain and brain stem. Death would have been immediate and occurred as a result of the multiple blunt force traumatic injuries.
9. Surveillance systems of the nearby plaza recorded the accident. A video of the collision appeared to show activation of the rear brake lights of the vehicle that struck Mr. Yu, however the vehicle failed to stop or remain at the scene of the collision. Two vehicles, a truck, driven by Christopher McGinn and a Rav40 SUV, driven by Terry Phillips stopped to assist and protect the body of Mr. Yu after they saw him lying on the roadway. They called 911. They concluded that Mr. Yu was obviously dead. Emergency vehicles, fire, ambulance and police arrived a short time later and closed Kennedy Road. Mr. Yu was declared deceased by the coroner at the scene. Neither Christopher McGinn or Terry Phillips or his passengers saw the impact.
10. Leon Tak-Shun was turning from the plaza onto Kennedy Road at the time of the accident. A vehicle was in front of his vehicle, also turning onto Kennedy Road. He described hearing a boom, and seeing something flying through the air. Once the vehicle in front of him turned onto Kennedy Road and he moved forward he realized that a person had been hit. He advised that the car that hit the person did not stop at all.

Agincourt Chrysler and Robbie Stern

11. In January 2013 Robbie Stern was the body shop manager for Agincourt Chrysler, located on Kennedy Road, Scarborough. When Stern arrived at work on Monday January 14, 2013 at 9:00 a.m. he found a Volvo S40 in the parking lot and an envelope with the keys for the vehicle and a note to call or text Daniel Porter. Stern had seen Daniel Porter driving the vehicle in the past. The windshield had several circular impact marks and a hole in the windshield on the driver’s side. The A-pillar had two large dents. The driver’s side headlight and signal light were broken. There was damage to the front fender and front bumper. The vehicle hood on the driver’s side was dented, and there was damage to the windshield wiper windshield mechanism. Stern drove the vehicle into the dealership and there was glass inside the vehicle, and it was wet where water had come into the vehicle through the hole in the windshield. Stern’s impression was that the windshield and pillar looked like they had been hit by a bat.
12. Stern spoke with Daniel Porter that same morning on the phone. He knew Porter from prior dealings at the dealership. Porter told Stern that the car had been vandalized downtown on the weekend. Stern told Porter that the damage to the vehicle exceeded its value and they discussed the bare necessities required to get the car roadworthy. Porter instructed Stern to repair the windshield, A-pillar, and wiper arm and headlight, but not the bumper or the hood. Porter came into the dealership the next day, Tuesday January 15, 2013, with a cash deposit and at that time requested Stern to also repair the hood and possibly the bumper…
13. On January 16, 2013 P.C. Emmanuel spoke with Sarah Porter, Daniel Porter’s sister. She was the owner of the Volvo, license plate number BNYP 641. She said that she believed the vehicle was parked at a parking lot adjacent to her home, located at Unit 98-39 Wayside Drive, Toronto, Ontario. She advised that only her mother and brother had access to the vehicle, and that in January 2013 Daniel Porter predominantly drove the Volvo.
14. She stated that her brother Daniel Porter had retrieved the keys for the vehicle on Friday January 11, 2013 and did not return them that night. She next saw him on January 12, 2013 at approximately 7:30 p.m. running from the area where she believed the car was parked, toward her. Sarah was in the driveway of her home, and was on her way with a friend, Christa Colbourne, to a club in downtown Toronto. Mr. Porter asked her for a ride downtown. He said he was going to a stag party for a friend. He told her that the Volvo would not start. He said nothing about an accident having occurred during the trip downtown. She dropped him off at approximately 8:00 p.m. Sarah Porter advised that she was not aware of any damage to her Volvo prior to January 12, 2013. She did not see the vehicle on January 12, 2013. She was not informed of any damage having occurred to her vehicle between January 11, 2013 and January 16, 2013. Normally she would be responsible for repairs to her vehicle.
15. Karen Porter also testified that she saw Daniel Porter coming from the parking lot on January 12 “maybe around - in between 7:30, 7:00” and that he asked if she could drive him somewhere. Karen told him she could not because she was babysitting. Daniel did not say anything to her about the car being vandalized.

Chronology of the Police Investigation

21. D.C. Steve Higho, is a member of the York Regional Police collision investigation unit. He was notified of the fatal motor vehicle collision and fail to remain on Kennedy Road at approximately 7:25 p.m. on January 12, 2013. D.C. Higho and other officers of the collision investigation unit including Sgt. Stock, P.C. Veenstra, P.C. Emanuel, and P.C. Nazzer attended the scene along with identification unit officer Det. Lean, and a number of uniform police officers. The coroner, Dr. Mckenzie, also attended the scene.
22. P.C. Higho arrived at 8:54 p.m. Uniformed officers were already on scene. D.C. Higho was assigned as the officer in charge, and P.C. Veenstra was assigned to conduct the accident reconstruction. An initial after hours media release was issued on January 12, 2013 at 8:51 p.m., the release advised that there had been a fatal motor vehicle accident that resulted in the closure of Kennedy Road between Dennison Street and Clayton Road. The release requested that anyone with information contact the police through a number of means.
23. Initially investigators believed that the vehicle involved in the collision was a Toyota Corolla because a 1997-2001 Toyota Corolla hubcap was located in the pedestrian crosswalk just north of the intersection of Kennedy and Gorvette. P.C. Veenstra, the accident reconstructionist, also located a broken plastic headlight cover from near the location of the impact. The brand name, “Hella”, manufacturers part number and serial number of the headlight were visible on the piece recovered. P.C. Higho initially believed the headlight cover could have come from a Toyota Corolla.
24. The surveillance video from the plaza located on the west side of Kennedy Road adjacent to the location of the accident was seized from WINCOM security on January 12, 2013 at 11:38 p.m. by P.C. Higho and Sgt. Stock. The security video showed the impact between the vehicle and the deceased. From the video the officers could see the general type of vehicle involved in the accident, a light colored sedan style car, but could not make out the exact make of the vehicle.
25. On Sunday, January 13, 2013, 12:50 a.m. D.C. Higho requested media relations officer, Blair McQuillan to release information that the vehicle wanted for the hit and run was believed to be a Toyota Corolla. P.C. McQuillan released the information via YRP social media. At 1:36 a.m. D.C. Higho completed an after-hours press release which indicated that a light colored 1997-2001 Toyota Corolla was wanted for the hit and run accident. It was sent out at 2:22 a.m.
26. On Monday, January 14, 2013, at 12:10 a.m. D.C. Higho, requested media relations officer, P.C. Pattenden to release a picture of the type of vehicle believed to be involved in the accident, (at that point a Toyota Corolla), to the media. At 2:18 p.m. P.C. Pattenden sent out a media release which included a picture of a Toyota Corolla.
27. A short time later, D.C. Higho and D.C. Veenstra attended a Toyota dealership in Aurora to make inquiries about the headlight cover and glass pieces located from the scene of the accident. While at the Toyota dealership they determined that the pieces recovered from the scene did not belong to a Toyota, and noticed that one of the pieces had the lettering “OLVO” imprinted on it. As a result D.C. Higho believed that the headlight pieces from the area of the impact belonged to a Volvo and that he had made an error in the media release by identifying the vehicle as a Toyota. At 2:58 p.m. D.C. Higho and P.C. Veenstra attended the Volvo dealership in Newmarket where a technician utilized the parts numbers located on the pieces recovered from the scene to confirm that they were from a headlight housing that came from a Volvo S40 sedan that was only in Canada between 2001 and 2004. D.C. Higho and Veenstra compared the headlight housing to a S40 Sedan that was at the dealership for repairs and confirmed that the pieces matched.
28. D.C. Higho immediately contacted P.C. Pattenden at 3:13 p.m. and advised him that the vehicle was not a Toyota Corolla but rather a 2001 to 2004 Volvo S40. P.C. Pattenden sent out a revised press release on Monday January 14, 2013 at 3:45 p.m. The revised press release indicated that the investigators were looking for the driver of a light-colored, 2001-2004 Volvo S40 believed to be involved in the collision and included a picture of a 2001-2004 Volvo S40. The release urged anyone with information to contact the Collision Investigation Unit, leave an anonymous tip online or text the tip and provide the contact information…
29. After learning that the vehicle was at Agincourt Chrysler, D.C. Higho made arrangements to secure the area where the vehicle was located; and P.C. Veenstra attended Agincourt Chrysler.
30. On the evening of January 16, 2013 the police attended Agincourt Chrysler and secured the Volvo. A warrant to search the vehicle was subsequently obtained and executed on January 17, 2013. The vehicle was photographed and taken to the Centre of Forensic Sciences and examined by both the York Regional Police and the Centre of Forensic Sciences. Damage was identified to the left side (driver’s side) of the vehicle including to the left grill, left front bumper, left front hood on the left side of the vehicle, to the left side front headlight and signal. Repairs were noted to be in progress on the left A-pillar. Numerous shards of glass were located on and near the drivers seat and footwell. Investigators also located and seized the windshield that had been removed from the vehicle. It was in a plastic bin at Agincourt Chrysler and was taken in addition to the vehicle for examination by the CFS. P.C. Veenstra examined the windshield at the CFS and noted an area of damage he believed was consistent with a pedestrian hitting a windshield. He noted that there were numerous circular marks and did not believe that the smaller marks were caused by a pedestrian hitting the windshield.
31. On January 17, 2013, a number of the recycling bins from Agincourt Chrysler were seized pursuant to the warrant. They were taken to YRP forensic identification unit and searched for the envelope that had been left with the vehicle keys when the vehicle was dropped off at Agincourt Chrysler, and located by Robbie Stern on Monday, January 14, 2013. The envelope was located by P.C. Nazzer in one of the recycling bins. It indicated “Rob Stern, call my phone or text me (416) 833-5294, Daniel Porter”.
32. On January 22, 2013, D.C. Higho photographed the replacement parts that had been ordered for Sarah Porter’s Volvo by Agincourt Chrysler, including a headlight assembly from the left front corner, left front signal assembly, windshield wiper assembly with motor. The replacement signal assembly ordered by Agincourt Chrysler has the same serial number as the headlight pieces found at the scene. The replacement “Hella” headlight housing was ordered from Miller’s auto recycling.
33. On January 20, 2013, D.C. Higho recovered a number of items obtained during the investigation from the forensic identification unit including clothing worn by the deceased at the time of the accident, a windshield wiper assembly, vehicle moulding and debris recovered from the scene on Kennedy Road and took them to the Centre of Forensic Sciences where they were secured.
34. On February 8, 2013, D.C. Higho contacted Dr. Lentz and requested that DNA samples of the deceased, Kunning Yu be sent to the Centre of Forensic Sciences for comparison with DNA located on the Volvo S40.
35. On February 22, 2013, D.C. Veenstra attended the Centre of Forensic Sciences and conducted a vehicle examination of the Volvo S40, including documentation of damage to the vehicle, photographs, and measurements of the vehicle required for completion of the accident reconstruction report. Identification belonging to Daniel Hill, and a number of papers addressed to Mr. Porter were located in the vehicle.
36. While at the Centre of Forensic Sciences the Volvo S40 was examined by CFS scientist Madeleine Margot. She compared the vehicle to paint samples and pieces of plastic located at the scene. She concluded that the broken headlight pieces seized from the scene of the accident were a physical match to the driver’s side headlight from the Volvo S40. She also concluded that a piece of plastic found at the scene was a physical match to the front bumper from the Volvo S40.
37. While at the CFS the vehicle was also examined by scientist Haidy Abdelsaed who examined the exterior of the vehicle and windshield for the presence of smears, fabric, light striations, hairs and fibers. Ms. Abdelsaed noted a number of smears and parallel striations on the front grill and on various parts of the car and also collected fibers from the car. Ms. Abdelsaed also examined the windshield that had been removed from the Volvo S40 and was seized in the garbage bin and taken to the CFS. Ms. Abdelsaed removed skeleton body hairs with tissue and embedded hair from the windshield which was saved for DNA analysis.
38. Mr. James Sloots conducted a DNA analysis of the hair and bodily substances seized by Ms. Abdelsaed from the windshield, and compared that DNA analysis to samples obtained from the deceased during the autopsy, and sent to the CFS by Dr. Lentz. The two samples had the same DNA profile and Mr. Sloots concluded that the probability that a randomly selected individual unrelated to Kunning Yu would coincidentally share the same DNA profile was estimated to be one in 2 Quadrillion.
39. David Ruddell of the Centre of Forensic Sciences compared broken glass from the driver’s side headlamp of the Volvo and glass from the windshield of the Volvo, with 14 pieces of glass removed from the shirt of the deceased, Kunning Yu. He compared the three largest pieces of glass and concluded that they could not exclude one of the pieces as having come from the broken headlamp of the Volvo S40, it was the same type of glass as the broken headlamp of the Volvo. The other two large pieces he could not exclude as having come from the broken windshield, they were the same type of glass as the broken windshield.
40. Scientist Robert Hong of the CFS examined the headlight filaments of the Volvo S40 to determine whether the headlight was on or off at the time of the impact, suggesting that it was on. He could not reach a conclusion in respect to other filaments, and could not conclude whether they were in a state of illusion or not.
41. P.C. Veenstra completed a scale diagram of the scene, (Exhibit 28 at the preliminary hearing), and an accident reconstruction report, Exhibit 15 at the preliminary hearing. The accident reconstruction report was completed on June 12, 2014. [Footnotes omitted.]

Issues

1. Was There a Breach of Solicitor-Client Privilege?

Solicitor-Client Privilege

[10] Solicitor-client privilege is the privilege that exists with respect to communications between lawyer and client, where the lawyer is acting in his or her professional capacity and giving legal advice.

[11] It is clear based on the facts of this case that Mr. Porter and Ms. Schmid had a solicitor-client relationship to which privileged attached. It is undisputed that Mr. Porter consulted with Ms. Schmid, a lawyer in good standing with the Law Society of Upper Canada, to obtain legal advice about what he should do with respect to the accident in which he had been involved. The meetings they held were in a private boardroom with the door shut. Privacy was clearly intended by both parties.

2. Was the Privilege Waived, either Explicitly or Implicitly?

[12] The defence argues there was no explicit waiver of privilege because such a waiver was never signed by Mr. Porter nor was the importance of such a waiver ever explained to him. Providing the police with the information given to her by Mr. Porter during the course of their meeting without an express waiver of privilege was a breach of solicitor-client privilege by Ms. Schmid.

[13] The defence argues further that any explicit waiver must be “voluntary, freely expressed, and with a clear understanding of the true consequences and effects of so doing if it is to be effective”, as per Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, at para. 96.

[14] In pursuing this argument, the defence submits that given Mr. Porter’s lack of choice (i.e. his evidence that he felt he had no choice but to comply because Ms. Schmid said she would report him as she had an ethical obligation to do so), the waiver was not voluntary and therefore not valid. As well, the defence adverted to what it interpreted as Ms. Schmid’s belief and focus on the mandatory reporting provisions under s. 199 of the Highway Traffic Act, R.S.O. 1990, c. H.8, (HTA), being indicative of her mindset with respect to the urgency with which the matters had to be reported.

[15] The difficulty with the defence argument is that much of it is premised on accepting Mr. Porter’s evidence. His evidence was neither reliable nor credible. In making this finding, I advert to the following:

a. His affidavit sworn July 26, 2016 is misleading in that it; i. Does not make mention that Mr. Porter’s friend, Jimmy Baxter, was present throughout the meeting with Ms. Schmid. ii. Does not make mention of the retainer agreement that he signed which contained specific references to solicitor-client privilege. iii. The wording of paragraph six makes it appear that Mr. Porter was not aware of or involved in the information that was given to the police by Ms. Schmid. In fact, he was present and with her when the information was given. iv. The affidavit indicates that Ms. Schmid never advised him what solicitor-client privilege was or how it could be waived. He contradicted this evidence during the voir dire and agreed that a discussion took place between him and Ms. Schmid which related directly to solicitor-client privilege. v. He failed to mention any of the discussions related to the mandatory reporting provisions under the HTA. vi. The affidavit does not mention that he told Ms. Schmid he was involved in the accident, that he knew the police were looking for his car or that he tried to destroy evidence by intentionally vandalizing the Volvo.

[16] Mr. Porter’s evidence on the voir dire was unreliable. He agreed with everything put to him by the Crown except whether his intention when he went to meet with Ms. Schmid was that he wanted to turn himself in. On this point he wavered while at the same time admitting that it was “weighing on him emotionally”, “the strain was bothering him”, “he had stayed up all night talking to Jimmy about what he should do”, “I can’t do this anymore”, “I wanted to resolve it so it wouldn’t affect my sister”. Despite what was, by his own admission, a significant problem weighing on his mind, Mr. Porter refused to agree that he went to see Ms. Schmid in order to turn himself in. He insisted he went only “for advice”.

[17] This evidence is inconsistent with Mr. Porter’s actions during and following his meeting with Ms. Schmid. Of note is his call or text to the body shop to cease work on the Volvo based on advice received, his support of the plan to attend at the police station to turn himself in that day at 6:00 p.m. and his correction to the police when Ms. Schmid gave the wrong name for the body shop.

[18] Indeed, he met with Ms. Schmid on the morning of January 16, signed a retainer agreement, designation of counsel and then returned to her office later that day so he could turn himself in to the police. Mr. Porter then retained her to act for him at his bail hearing, at his preliminary inquiry and then to prepare for trial. Ms. Schmid knew nothing about the alleged breach of solicitor-client privilege until July 25, 2016.

[19] I find that Mr. Porter’s actions and words are inconsistent with a breach of solicitor-client privilege. On the contrary, I find that his actions are entirely consistent with a client who received legal advice, chose to follow it and understood the implications of doing so.

[20] At this point, I turn to an assessment of Ms. Schmid’s evidence. I found her evidence to be both reliable and credible. Where her evidence and that of Mr. Porter do not align, I prefer Ms. Schmid’s evidence on every point. Her evidence was given in a straightforward and professional manner. She conceded that she should have done some things she did not, or done some things better than she did. That, however, does not take away from what this court finds to be the competent and considered legal advice that she gave Mr. Porter.

[21] I rely on R. v. Porter, 2015 ABCA 279, 607 A.R. 38 (not the same accused), a case in which statements made to the police under the Alberta Traffic Safety Act, R.S.A. 2000, c. T-6 (equivalent to the HTA) were found to be compelled statements and inadmissible against the accused (at paras. 21, 28). Charges of failing to stop at the scene of an accident were dismissed against the accused as the compelled statements were excluded (at paras. 3, 28). Clearly, Canadian courts have recognized the advice given by Ms. Schmid to be valid in similar circumstances.

[22] With respect to the specifics of my assessment of Ms. Schmid’s evidence, I find as follows:

a. She took very detailed notes which were consistent with both her memory at the voir dire and her affidavit. b. She consulted with two other senior counsel to ensure her advice was sound and based on the proper principles of law. c. Her advice to Mr. Porter with respect to the obligation to report under s. 199 of the HTA was entirely reasonable. I accept her evidence that she presented this to Mr. Porter as a “better option” with respect to turning himself in. While those exact words were not to be found in her notes, the proposed solution can be inferred from the notes as a whole. d. I reject Mr. Porter’s contention that Ms. Schmid told him that if he did not turn himself in, she would contact the police as she had an obligation to do so. Mr. Porter’s actions are inconsistent with being forced to turn himself in. Further, Ms. Schmid’s notes were very detailed and I infer some reference to such an ultimatum would have been in them.

[23] Returning to the issue of privilege, it is clear that in a perfect world all lawyers would obtain a written waiver of privilege in all relevant circumstances. However, the reality of criminal court and practice is that a waiver cannot be obtained for every situation that arises.

[24] Clearly, no written waiver was signed in this case. While that would have been ideal in terms of process, it was not necessary. I reject Mr. Porter’s evidence that he was undecided about what he wanted to do when he entered Ms. Schmid’s office. He knew exactly what he wanted to do. He was there not just to obtain general legal advice, but to get specific legal advice on how to turn himself in. Ms. Schmid’s notes, actions and testimony are consistent with Mr. Porter communicating those instructions and his understanding of Ms. Schmid’s advice. His actions that follow (arranging the surrender and providing the location of the Volvo) are indicative of a willingness to cooperate with and rely on that advice. An implied waiver of solicitor-client privilege is the result.

[25] As per R. v. Dickson, 2014 ABPC 233, 597 A.R. 313, at para. 51, the evidence is clear that Ms. Schmid had the authority to provide information to the police. Mr. Porter was present on both occasions when she did so on January 16, 2013. Based on my finding of an implied waiver, the information communicated to police was no longer protected by solicitor-client privilege.

Third Party Waiver

[26] The Crown argues that even if Mr. Porter did not expressly or impliedly waive solicitor-client privilege, the presence of Mr. Baxter at the initial meeting with Ms. Schmid changed the character of the meeting into one that was no longer subject to solicitor-client privilege. Mr. Baxter could be called as a witness.

[27] The defence relies on Hannis v. Tompkins, [2001] O.J. No. 5583. In that case, the presence of a representative of the Alzheimer’s Society during a meeting with some of the defendants and their counsel did not result in a waiver of solicitor-client privilege (at para. 47). The Court found that there is no waiver where the third party’s presence is required to advance the client’s interests. The Court referred to the threshold not being a high one, and includes situations where a party wishes a friend or relative to be present at a meeting with counsel so they feel more comfortable or want to ensure they understand the advice (paras 45).

[28] It is clear from Ms. Schmid’s notes and her testimony that she advised Mr. Porter of the implications of having Mr. Baxter present at the meeting. The fact that his presence would result in a loss of solicitor-client privilege was canvassed with Mr. Porter. He acknowledged this in his cross-examination.

[29] It is this court’s view that these facts lend themselves more closely to the circumstances set out in Hannis. That is, it is clear that Mr. Porter wanted Mr. Baxter there. Indeed, it was Mr. Baxter to whom Mr. Porter had told the entire story and he was the person who insisted that Mr. Porter obtain legal advice. Mr. Porter wanted the meeting to proceed with Mr. Baxter present because he was more comfortable with him there. He knew the possible implications of a waiver of solicitor-client privilege by the presence of Mr. Baxter and wanted to proceed with him present regardless of this warning.

[30] In these circumstances I do not find that Mr. Baxter’s presence would have resulted in a waiver of solicitor-client privilege based on the principles in Hannis. However, given my finding that there was no breach of solicitor-client privilege, the issues relating to the presence of Mr. Baxter are of little relevance.

Remedies

Section 7

[31] Given my finding that there was no breach of solicitor-client privilege, a remedy is not required in this case. The application is dismissed and the evidence is not excluded.

[32] However, if I am wrong and such a breach is found to exist, a consideration of a possible remedy under s. 7 of the Charter would be in order.

[33] In my view, such a remedy is confined to government actions. In McKinney v. University of Guelph, [1990] 3 S.C.R. 229, the appellant professors at various universities sought a declaration that university policies requiring them to retire at age 65 violated s. 15 of the Charter. The Court held, at p. 232, as follows:

…the Charter is confined to government action. It is essentially an instrument for checking the powers of government over the individual. The exclusion of private activity from Charter protection was deliberate. To open up all private and public action to judicial review could strangle the operation of society and impose an impossible burden on the courts.

[34] The question arises as to whether any exceptions exist to the clear principles set out in McKinney. The answer in this court’s view is, possibly, but such circumstances do not apply in this case. In R. v. Harrer, [1995] 3 S.C.R. 562, the Court considered whether evidence obtained in the U.S. in a manner that would violate the Charter should be excluded. The Court dismissed the appeal and stated that U.S. authorities were not acting on behalf of any Canadian government and further that the accused was entitled to a fair hearing but not “to the most favourable procedures imaginable,” (at p. 563).

[35] Only where the actions of a non-state actor result in procedures that are “an anathema to the Canadian conscience” would s. 7 be invoked to protect the values of the Canadian trial process (Harrer, at para. 51). I agree with the Crown that these are truly exceptional remedies and that even if a breach of solicitor-client privilege were found to exist, the facts in this case do not come close to repudiating our system of trial fairness.

[36] McKinney involved individuals who worked for institutions which performed a public service and were dependent on public funds. Nevertheless, they were not found to be part of government. It is therefore difficult to imagine how the interaction between Ms. Schmid and Mr. Porter could be found to be anything but a business relationship between two individuals without any state involvement whatsoever.

Abuse of Process

[37] The defence submitted that should a breach of solicitor-client privilege be found, Mr. Porter was entitled, as an alternative remedy, to a stay of proceedings based on an abuse of process either under the Charter or the common law.

[38] The defence relied on R. v. Jewitt, where the Supreme Court of Canada confirmed a residual discretion in a trial court judge to stay proceedings under both the common law and the Charter where an abuse of process affects the integrity of the justice system as a whole or the rights of an individual (at paras. 25, 54).

[39] However, in R. v. Neil, 2002 SCC 70, [2002] 3 SCR 631, at para. 3, the Court refused to grant a stay as a remedy for an abuse of process under either the Charter or the common law, even in circumstances where there was a serious and intentional breach of solicitor-client privilege.

[40] While I accept that a stay may still be granted in certain cases where there is an egregious abuse of process, such circumstances do not exist here. Even if I had found a breach of solicitor-client privilege, this is not the “clearest of cases” in which the test for a stay would be met nor did the conduct of Ms. Schmid ever reach the point that her actions could be said to “infect” the trial with “a serious risk of injustice,” (Neil, at paras. 43, 47).

Conclusions

[41] In addition to finding that no breach of solicitor-client privilege occurred in this case, there are additional reasons to dismiss the application.

[42] First, the analysis in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, must be considered. What is the seriousness of the Charter infringing conduct? The police were clearly acting in good faith as they had no idea what had gone on between Ms. Schmid and her client. The evidence of Ms. Schmid has been accepted by this court and there is nothing to indicate that she was acting in anything but her client’s best interests.

[43] Second, there is the impact of the Charter breach and the issue of inevitable discovery. I agree with the Crown that there are several factors which, objectively viewed, would lead to the conclusion that Mr. Porter and his car would have been discovered by the police. Those factors are as follows:

a. While the body shop manager, Robert Stern, did not contact police as quickly as perhaps he should have, it is clear that such contact would have been inevitable. Mr. Stern became aware that police were searching for a Volvo of the same vintage and model as the one Mr. Porter had brought in for repair. He knew from Mr. Porter’s sister that Mr. Porter intended to turn himself in. He spoke to Ms. Schmid by phone and had also spoken to Mr. Porter directly about stopping work on the car. Later that evening he tried to call the police via the number in the news bulletin but did not want to leave a voicemail message. I accept Mr. Stern’s evidence that he no doubt would have contacted the police and informed them he had a vehicle matching the description in the news bulletin. However, the following morning the police arrived at the body shop with a warrant for the car. Whether or not Mr. Stern would have contacted police the next day will never be known but the evidence surrounding the events of the day before the police arrived with the warrant and Mr. Stern’s suspicions about the Volvo and Mr. Porter’s involvement are difficult to ignore. b. A confidential informant gave police the name “Daniel” and an address. While the street name given was “Leaside” and not “Wayside,” lists of Volvo owners in the area around the accident would no doubt have lead them to Mr. Porter for several reasons. First, the Volvo was registered to his sister, Sarah Porter. Second, Wayside Drive was close to the scene of the accident. Third, a second confidential informant identified Mr. Porter, and was aware his sister owned the car. The police did not do significant follow up on the leads from the confidential informants, but that is because Mr. Porter turned himself in. There seemed little point in further follow up when Mr. Porter identified the location of the car and admitted his involvement in the accident. c. Such a serious accident involving a fatality would not have been left by Sergeant Stock to languish. I accept that if Mr. Porter had not turned himself in, more dedicated efforts would have been made to follow up on the tips from the confidential informants and the list of Volvo owners. The impact of any Charter breach is therefore substantially reduced where the result with or without Mr. Porter turning himself in would have been the same.

[44] Finally, consideration must be given to society’s interest in hearing cases adjudicated on their merits. This is a serious matter involving the death of a pedestrian. Excluding all of the evidence sought by the defence would bring the Crown’s case to a grinding halt. Society has an interest in ensuring such cases are tried, except in the case of a clear Charter breach or an abuse of process. No such breach has occurred in this case.

[45] The application is dismissed and the trial scheduled to commence on October 12, 2016 shall proceed.

Madam Justice C.A. Gilmore Released: September 26, 2016