Court File and Parties

COURT FILE NO.:

DATE: 20180202

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Nadine Gourkow

BEFORE: Justice Heather McArthur

COUNSEL: Crown Counsel: K. Aird and D. Morlog Defence Counsel: B. Greenshields

HEARD: February 2, 2018

Endorsement

[1] The Crown brings an application for directions with respect to documents over which the respondent, Ms. Gourkow, has asserted a claim of solicitor-client privilege. The items were seized pursuant to a search warrant executed at Ms. Gourkow’s residence. The issue in this application, is what procedure should be used in reviewing the seized documents to determine which, if any, are subject to claims of solicitor-client privilege.

[2] A brief outline of how the issue came to light may be useful. After the documents were seized, police officers provided Crown counsel, Mr. Morlog, with a USB key containing scanned copies of the documents. In reviewing the materials on the USB key, Mr. Morlog discovered an email to Ms. Gourkow from a lawyer named John Conroy. Mr. Conroy is a lawyer known to have dealt with marihuana cases in the past. Ms. Gourkow is alleged to have been a principal operator of a marijuana storefront dispensary and is facing a number of charges as a result.

[3] Crown counsel did not read the email. He printed a copy, put it in a sealed envelope and deleted the document from the USB key. As he continued his review of the documents on the USB key, he came across a few other documents that could potentially be covered by solicitor-client privilege. He printed these documents without reading them, placed them in sealed envelopes and deleted the documents from the USB. At that, he stopped reviewing the USB key. He notified Ms. Greenspan, who is representing Ms. Gourkow on her criminal charges. Ms. Greenspan asserted solicitor-client privilege over the seized materials on her client’s behalf. The Crown then took steps to ensure that no one can access the documents until the correct process for dealing with any privilege issues has been determined.

[4] The USB keys, the documents put in sealed envelopes and the hard copies of the documents that were scanned have been filed as sealed exhibits on this application.

[5] The Crown has suggested that Ms. Gourkow be provided with a copy of the USB key. She can then review the material and determine which, if any, documents she claims are covered by solicitor-client privilege. This approach was recently used in the matter of R. v. Douglas, 2017 MBCA 63.

[6] The defence counters that the Crown proposal is inappropriate. Instead, the defence argues that a third-party referee should be appointed by the Court to review the documents and determine which, if any, are subject to a claim of solicitor-client privilege. The defence also takes the position that the third-party referee should examine the electronic devices that the Crown says can be returned to Ms. Gourkow.

[7] In assessing the arguments in this application, I keep in mind the fundamental importance of solicitor-client privilege. In Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, at para 49, Arbour J. explained the significance of solicitor-client privilege, noting:

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. That is why all efforts must be made to protect such confidences.

[8] More recently, in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, at para. 43, Cote J. for the majority, reiterated the importance of solicitor-client privilege. She explained:

This Court has repeatedly affirmed that, as a substantive rule, solicitor-client privilege must remain as close to absolute as possible and should not be interfered with unless absolutely necessary. (cites omitted)

[9] In my view, the Crown proposal recognizes the importance of solicitor-client privilege. Ms. Gourkow is the privilege holder. The approach proposed by the Crown would ensure that the privilege is respected, as it would be Ms. Gourkow who would be reviewing the documents. She is in the best position to know what documents are covered by solicitor-client privilege.

[10] Mr. Greenshields, for the defence, advances three arguments opposing the approach advocated by the Crown. First, he argues that Ms. Gourkow is not a lawyer, and is thus not in a position to identify which documents are privileged. Ms. Gourkow, however, is in a particularly good position to identify which, if any, of the documents are covered by privilege. While not a lawyer herself, she can easily identify which documents came from her lawyer, or were sent to her lawyer.

[11] Second, he argues that the Crown proposal is inconsistent with the approach taken in the matter of R. v. Law Office of Simon Rosenfeld, [2003] O.J. No. 834 (Ont.S.C.J.). In my view, however, the facts of the present case are highly distinguishable. In the Rosenfeld case, the defendant was a lawyer. Numerous client files were at issue. In that case, there were good policy reasons for a third-party referee to review the materials and notify all clients who could be identified, so that they could, if they wished, assert solicitor-client privilege and participate in the process. In the present case, the defendant is also the privilege holder. Thus, I do not find the reasons in the Rosenfeld case to be applicable to the present situation.

[12] Third, defence counsel argues that having Ms. Gourkow review the documents to see which, if any, she claims privilege over would infringe her right not to be compelled to assist the prosecution. I cannot agree. Having Ms. Gourkow review the documents would not conscript her against herself; rather, it would protect her rights.

[13] In my view, the proposal of the Crown is sensible, reasonable, and appropriate. A copy of the USB key should be provided to Ms. Gourkow, or a designate approved by her in writing. She will have 60 days from today’s date to review the documents and advise the Crown and the Court in writing, whether or not solicitor-client privilege is asserted over any of the seized documents.

[14] If no privilege is asserted, the court staff should turn over to the Crown the remaining USB, and the materials filed as exhibits.

[15] If a claim of privilege is asserted, the remaining USB and the other exhibits 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 has been asserted, unless and until the Court determines there is no privilege issue. As in the matter of R. v. Shaw, 2015 ONSC 4853, it may be helpful to have amicus curiae retained to assist the Court on this issue. That decision should be left to the discretion of the judge hearing the issue.

Justice Heather McArthur

Date: February 2, 2018