Court File and Parties
CITATION: R. v. Tyldesley, 2017 ONSC 5798
COURT FILE NO.: CR-17-005
DATE: 2017/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Crown/Respondent
Staci Tyldesley Accused/Applicant
COUNSEL:
David King, for the Crown/Respondent
Jeffrey Manishen, for the Accused/Applicant
HEARD: June 19, 20, 27, July 17, 18, 19, 2017
BEFORE: The honourable mr. justice g.e. taylor
RULING RE PRIVILEGE
Introduction
[1] Staci Tyldesley is an officer with the Hamilton Police Service. She is charged with one count of obstructing justice, one count of forgery and seven counts of fabricating evidence.
[2] During the course of the investigation which resulted in the current charges, Staci Tyldesley’s cell phone was seized pursuant to a search warrant. The cell phone contained three communications between Staci Tyldesley and a lawyer by the name of Gary Clewley who had been retained by the Hamilton Police Association to provide legal advice to officers who were under investigation.
[3] Staci Tyldesley seeks an order staying the present indictment on the basis of a breach of solicitor client privilege as result of investigators failing to properly respect her privilege.
Evidence on the Application
[4] On November 17, 2014, Staci Tyldesley’s cell phone was seized pursuant to a search warrant. The contents of the cell phone were downloaded. There were over 35,000 email and text messages on the phone. Three of the text messages were between Staci Tyldesley and Gary Clewley, a lawyer retained by the Hamilton Police Association to advise the officers who were under investigation. All three communications took place on the same day.
[5] In the first message, Gary Clewley reports to several officers including Staci Tyldesley about a telephone conversation he had had with the counsel to the Chief of the Hamilton Police Service. In the second text, Staci Tyldesley reported to Gary Clewley about a conversation she had had with Trevor Holmes, who is an important Crown witness in the case. The final message consists of a one word response from Gary Clewley to Staci Tyldesley: “Understood”.
[6] After the cell phone was seized, neither Staci Tyldesley nor Gary Clewley alerted anyone involved in the investigation that there were communications on the cell phone which were considered to be covered by solicitor client privilege.
[7] Initially, two investigators were assigned to this case and subsequently two additional investigators became involved. At least one of the investigators read the exchange of text messages between Staci Tyldesley and Gary Clewley.
[8] Kim Milne was the officer who was responsible for preparing disclosure for the case. In preparing the defence disclosure brief she removed copies of the communications between Staci Tyldesley and Gary Clewley. However, although she removed the Staci Tyldesley/Gary Clewley texts from the communications from Staci Tyldesley’s cell phone, she mistakenly included a copy of the Staci Tyldesley/Gary Clewley texts which were attached to the notes of one of the other investigators. The Staci Tyldesley/Gary Clewley texts were therefore disclosed to the lawyers for the other officers charged. At one point in time, all of these officers were represented by Gary Clewley. When it was brought to the attention of the Crown by Staci Tyldesley’s current lawyer that potentially privileged material had been disclosed, the defence disclosure brief was recalled and the Staci Tyldesley/Gary Clewley texts were removed.
Discussion and Analysis
[9] For the purpose of this ruling, I will treat each of the three text messages between Staci Tyldesley and Gary Clewley to be solicitor client communications.
[10] I am satisfied that the breach of solicitor client privilege by reviewing the text messages in question was inadvertent as was the subsequent disclosure of those text messages to other persons charged.
[11] There is no obligation on a client or solicitor to assert the privilege: Lavallee, Rackel & Heintz v. Canada (Attorney General), 3 S.C.R 209; R. v. Shah, [2015] O.J. No. 4129. However, in my view, when deciding the appropriate remedy for a breach of solicitor client privilege, a factor to be considered is the failure of the client or the lawyer to raise the issue promptly after the seizure of the cell phone containing the privileged communications.
[12] With respect to the disclosure of the privileged communications to other persons charged, I note that the same officers who were the recipients of the disclosure were also recipients of the first text message for which the breach of privilege is asserted.
[13] The remedy sought by Staci Tyldesley is a stay of proceedings. The Crown does not intend to rely in any way on the three text messages in question. The Supreme Court of Canada held in R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 that the remedy of a stay of proceedings will be granted only if two criteria are satisfied which are: (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 (paragraph 54). In R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, the Supreme Court of Canada held that a stay of proceedings is only appropriate “in the clearest of cases” where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice to the integrity of the justice system would be caused if the prosecution were continued (paragraph 82).
[14] In this case, the breach of Staci Tyldesley’s solicitor client privilege was inadvertent and minimal. The Crown does not seek to use the evidence in any way. There will be no prejudice to Staci Tyldesley’s right to a fair trial and nor is this one of the clearest of cases where a stay of proceedings is required in order to prevent irreparable prejudice to the integrity of the administration of justice.
Conclusion
[15] For these reasons, the application is dismissed.
“G.E. Taylor”
G.E. Taylor, J.
Released: September 29, 2017
CITATION: R. v. Tyldesley, 2017 ONSC 5798
COURT FILE NO.: CR-17-005
DATE: 2017/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Staci Tyldesley
RULING RE PRIVILEGE
G.E. Taylor, J.
Released: September 29, 2017