COURT FILE NO.: CR-21-00000036-00MO
DATE: 20210412
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.M.
S. Domaradzki, for the Crown
HEARD: 17 March 2021
PUBLICATION BAN:
s.110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED-(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
s. 129. NO SUBSEQUENT DISCLOSURE- No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES - Every person who contravenes subsection 110(1) (identity of offender not to be published), 111 (1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
s.a.Q. akhtar j.
RULING ON PRIVILEGED COMMUNICATIONS
BACKGROUND FACTS
[1] A.M. is charged with historical sexual assault offences that are alleged to have occurred when he acted as a babysitter for C, the complainant. At the time of the allegations A.M. was a youth.
[2] C is now deceased, having passed away in 2017. These allegations came to light after his death when police interviewed members of C’s family and his friends. These witnesses have provided statements which will be the subject of hearsay applications at A.M.’s trial pursuant to the principles set out in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, and R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865.
[3] C also provided details of the alleged sexual abuse to two lawyers who acted for him in unrelated capacities. Lawyer A, who acted for C in an impaired driving case, was told of the allegations when meeting C at a courthouse.
[4] When contacted by the police, Lawyer A informed them that another lawyer, hereinafter referred to as Lawyer B, also had information relating to the allegations.
[5] Lawyer A said that he had retained records relating to C’s disclosure and had a “very good recollection of the matter”. When contacted, Lawyer B confirmed knowledge of the information sought.
[6] However, after Lawyer A contacted the Law Society of Ontario, he was told that the information could not be shared without a court order. As a result, he cancelled his scheduled police interview, stating that he was bound by professional rules to remain silent. Lawyer B takes the same position. Both counsel have indicated they would be willing to be speak to police if permitted to do so by court order.
[7] The Crown applies, ex parte and in camera, for an order allowing the police to speak to both counsel about their conversations with C in relation to the offences with which A.M. is charged. Crown counsel argues that any privilege attaching to the conversations with Lawyers A and B has been waived by C’s father, who has been appointed C’s Estate Trustee. In the alternative, the Crown submits that the privilege can be waived if it is in the interests of justice to do so.
[8] Counsel for A.M. in this case has acknowledged that they have no standing to make submissions as this is purely a matter involving the Crown’s ability to interview potential witnesses.
[9] This matter proceeded before Finlayson J. in the Ontario Court of Justice. However, on 3 February 2021, he concluded that he lacked jurisdiction to grant the Crown’s application.
[10] At the end of the Crown’s argument, I allowed the application and made an order permitting Lawyers A and B to speak to the police about what they had been told by C regarding the abuse. These are my reasons for doing so.
IS PRIVILEGE WAIVED?
Waiver by Successor
[11] In Solosky v. The Queen, [1980] 1 S.C.R. 821, at p. 835, the Supreme Court of Canada held that solicitor-client privilege extended to any communication where legal advice was sought or offered.
[12] Solicitor-client privilege belongs to the client and may only be waived by them: Smith v. Jones, [1999] 1 S.C.R. 455, at para. 46; Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at p. 383. The privilege survives the death of the client: Geffen, at p. 384; R. v. Dunn, 2012 ONSC 2748, at para. 89.
[13] In the context of wills and estates law, the personal representative of a testator may waive the privilege which existed between the testator and the testator’s lawyer, although this ability should be exercised only to the extent necessary: Dumke v. Conrad, 2019 NSSC 310, at para. 17. See also Stapleton v. Doe, 2017 BCSC 12, at para. 30.
[14] In Geffen, at p. 384, the Court held that even though the privilege continues beyond the death of the client, it “enures to his or her next of kin, heirs, or successors in title”. In Metcalfe v. Metcalfe, 2001 MBCA 35, at para. 13, the Manitoba Court of Appeal, citing Geffen, agreed that “only the client or the client’s agent or successor” can waive the privilege.
[15] In this case, I am informed that C’s father was named executor of his estate. In my view, any privilege that exists between C and the two lawyers is now in his father’s hands. He has expressly waived privilege and conveyed his wish that the police speak to both Lawyer A and B.
[16] I find that this constitutes a valid waiver of the solicitor-client privilege pertaining to C’s communications with Lawyers A and B. Accordingly, both counsel are permitted to speak to the police on C’s disclosures relating to the allegations.
The Interests of Justice
[17] In the alternative, I find Lawyers A and B are permitted to speak to the police in the interests of justice.
[18] In R. v. Dunbar (1982), 68 C.C.C. (2d) 13, the Court of Appeal for Ontario, reviewed the policy considerations underlying the privilege in the context of communications by one accused to his solicitor in a multi-accused case. It held that when the interests of justice were at stake and the existence of documents or communications which were otherwise privileged would assist in an accused’s defence, that privilege yielded to permitting a jury to consider the evidence. At p. 44, the Court held:
No rule of policy requires the continued existence of the privilege in criminal cases when the person claiming the privilege no longer has any interest to protect, and when maintaining the privilege might screen from the jury information which would assist an accused.
[19] In R. v. Jack (1992), 70 C.C.C. (3d) 67, the Manitoba Court of Appeal applied Dunbar to a case where the Crown sought to rely on privileged communications as part of its case. Mr. Jack was charged with the murder of his wife whose body was never recovered. Three days before she disappeared, Ms. Jack had consulted a lawyer specialising in family law. At trial, the lawyer was allowed to testify as to the general nature of their meeting, although not to the specific dialogue.
[20] The trial judge, following Dunbar, found that solicitor-client privilege should not be allowed to prevent Ms. Jack’s lawyer from giving evidence in these circumstances. The judge concluded that as Ms. Jack no longer had an interest to protect, the basis for solicitor-client privilege ceased to exist. The Court of Appeal upheld the conviction by finding that the evidence given did not amount to a communication of confidential information but simply a recitation of the lawyer’s advice regarding the tenor of the meeting with the client and her state of mind.
[21] However, in rejecting Mr. Jack’s argument that he should be able to invoke the privilege because his interests were adversely affected, the Court indicated that there was no solicitor-client privilege in the circumstances. Scott C.J.M., writing for the court stated, at p. 90:
In my opinion the accused's position is not tenable. In this case the person in whose favour the privilege exists is alleged to have been killed by the very person who claims to benefit from the privilege. It is clearly in the best interests of Christine Jack, and in the "interests of justice", that the privilege be waived as it was in this case by her lawyer.
[22] Scott C.J.M. continued, at p. 91:
With respect to other heads of privilege, the courts have recently shown a tendency to allow evidence to be introduced in "the interests of justice" where the benefit to the administration of justice clearly outweighs in importance any public interest that might be protected by upholding the claim for privilege: see, for example, Bergwitz v. Fast (1980), 108 D.L.R. (3d) 732, 18 B.C.L.R. 368, 1 A.C.W.S. (2d) 180 (B.C.C.A.); Hamulka v. Golfman (1985), 20 D.L.R. (4th) 540, [1985] 5 W.W.R. 597, 35 Man. R. (2d) 189 (C.A.), and Merrill Lynch v. Granove, [1985] 5 W.W.R. 589, 35 Man. R. (2d) 194, 33 A.C.W.S. (2d) 18 (C.A.). This is exactly what was done, albeit in the interests of the accused, in Dunbar and Logan, supra, relied on by the trial judge.
I have no difficulty in concluding in the circumstances of this case that if the evidence of the lawyer strayed into communications of a confidential nature, it was in the interests of both the client, Christine Jack, and the administration of justice that the communications in question be admitted in evidence.
[23] I come to the same conclusion: the “interests of justice” dictate that the privilege attaching to communications between C and Lawyers A and B must be waived. As in Jack, the privilege no longer protects C’s best interests but instead hinders police efforts to properly investigate possible criminal activity where he was the victim. By contrast, waiving privilege advances C’s best interests by revealing his account of the allegations. Moreover, ending the privilege furthers the administration of justice by ensuring that a trier of fact may consider evidence deemed relevant and otherwise admissible.
[24] Accordingly, I find Lawyers A and B may speak to the police about their communications with C in relation to the allegations made against A.M.
[25] My findings, of course, do not impact any evidentiary rulings on hearsay which are reserved solely to the trial judge.
S.A.Q. Akhtar J.
Released: 12 April 2021
COURT FILE NO.: CR-21-00000036-00MO
DATE: 20210412
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.M.
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.