Court File and Parties
COURT FILE NO.: CR-23-30000283-000 DATE: 20230614 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: His Majesty the King, Crown AND: Robert Konashewych and Adellene Balgobin, Defendants
BEFORE: S.F. Dunphy J.
COUNSEL: Peter Scrutton and Samuel Walker, for the Crown Michael Lacy and Marcela Ahumada, for the Applicant Robert Konashewych Juliana Greenspan and Ethan Radomski, for the Defendant Adellene Balgobin
HEARD at Toronto: May 23-26, 2023
Reasons for Decision – ss. 7, 8 and 24 Charter Application
[1] This is an application by the defendant Mr. Robert Konashewych (“Mr. RK”) pursuant to ss. 7, 8 24(1) and (2) of the Canadian Charter of Rights and Freedoms. The application alleges that police breached Mr. RK’s s. 7 rights during the course of their investigation by taking possession and making use of a copy of a letter which was presumptively subject to solicitor-client privilege, in circumstances warranting a stay of proceedings under s. 24(1) of the Charter. The application also alleges breaches of s. 8 of the Charter arising from the police receipt of copies of the same letter as well as a further letter (not subject to solicitor-client privilege) and certain greeting cards belonging to Mr. RK. Each of the documents in question was obtained by the former spouse of Mr. RK, Ms. Candice Dixon (“Ms. CD”) and provided to police by her.
[2] The two letters were addressed to the Estate of Mr. Heinz Sommerfeld “c/o” Mr. RK. They were both opened by Mr. RK’s then-spouse in circumstances which she testified were instances of innocent inadvertence. Certain greeting cards addressed to Mr. RK were found by her in sorting through his possessions in a shared storage locker during the course of the family law proceedings that followed their separation. These and the two letters were brought by her to police unsolicited on March 6, 2019 when she attended the police station to report a possible crime by her former spouse.
[3] Mr. RK and Ms. Adellene Balgobin (“Ms. AB”) are jointly charged with defrauding the estate of Mr. Sommerfeld and/or its potential beneficiary, Mr. Peter Stelter, of money of a value exceeding $5,000 contrary to s. 380(1)(a) of the Criminal Code. Ms. AB, who was employed as at the Office of the Public Guardian and Trustee (“OPGT”) of Ontario at the time, is also charged with having committed a breach of trust in connection with the duties of her office contrary to s. 122 of the Criminal Code. Ms. AB is not a party to this preliminary application.
[4] The theory of the Crown’s case may be summarized as follows. None of the allegations having yet been proved at trial. The defendant Ms. AB was a public official with the OPGT at the time of Mr. Sommerfeld’s death in June 2017 with the responsibility for managing his affairs. Mr. Sommerfeld was an elderly man suffering from dementia. He died with no known will and with no known friends or family apart from a half-brother, Mr. Stelter, who had not seen him for several years. Ms. AB was in a romantic relationship with Mr. RK prior to the death of Mr. Sommerfeld. It is alleged that a will was forged naming Mr. RK as executor and sole beneficiary of the Estate of Mr. Sommerfeld after his death and that Ms. AB participated in the probate of the allegedly fraudulent will resulting in Mr. Sommerfeld’s estate being defrauded of more than $800,000 in value.
[5] The case is to be tried before me with a jury immediately following the conclusion of this application. I advised the parties of my decision to dismiss this application orally with reasons to follow.
[6] In summary, I advised the parties that I found that police knew or ought to have known that the copy of the letter provided to them by Ms. CD and addressed to the Estate of Mr. Sommerfeld c/o Mr. RK was presumptively subject to solicitor-client privilege and, notwithstanding the apparent irrelevance of the letter to their investigation, both detectives on the case had sufficient information to know that legal advice ought to have been sought as to what to do with a document subject to presumptive solicitor-client privilege.
[7] Without diminishing the foundational importance of solicitor-client privilege, the consequences of this particular breach of s. 7 of the Charter by police are on the very low end of the spectrum and far from the clear or extreme circumstances that might justify a remedy as severe as a stay of proceedings under s. 24(1) of the Charter.
[8] Police conduct can be explained but not condoned by the irrelevance of this document to the alleged criminal activity being reported to them by Ms. CD, the detectives’ relative lack of experience dealing with privileged documents and the volume of other highly relevant documents received in the same bundle of documents as the letter. The limited relevance of the letter was restricted to its spent role in the narrative as having triggered Ms. CD’ personal investigation into her ex-spouse’s application for probate of Mr. Sommerfeld’s estate and her procurement of the other documents that she brought to police. I am satisfied that neither detective focused on the question of privilege until this application was brought even though they ought to have much earlier in the investigation. Sufficient red flags that ought to have attracted their attention were overlooked.
[9] It is clear that the existence of a breach of s. 7 of the Charter is not impacted by a consideration of the contents of the document in question. The Supreme Court of Canada intentionally created a bright line test intended to tilt the balance towards prior permission and away from subsequent forgiveness. [1] However, the contents of the document are relevant to an examination of the consequences of the breach and the remedy if any that might be applied under s. 24 of the Charter.
[10] The existence of the estate and the court file generated by it (including the will and evidence of the involvement of Ms. AB in its probate) were already in police possession independent of the privileged letter. The name of the estate and the fact that correspondence to it was being sent “c/o” Mr. RK was evident on the face of the envelopes of both letters without need to open them. Ms. CD knew of Ms. AB’s name, where she worked and of her relationship to her ex-spouse before the arrival of these letters. The content of the privileged letter itself (a lawyer’s invoice for services rendered) was a spent document as regards to the police investigation before police ever obtained possession of it – its only relevance to explain how the private investigation conducted by Ms. CD was triggered and carried on before police became involved. While the amount of fees charged by a lawyer is generally confidential, the amount on the invoice was of no relevance to the investigation in question. I do not accept the allegations that police were acting in bad faith. Strict compliance with appropriate procedures upon receipt of this presumptively privileged document – one document within a bundle of other highly relevant documents – would not have impacted the unfolding of the police investigation in any way at all.
[11] The s. 7 breach present here does not rise to the level of “the clearest of cases” warranting a stay of proceedings under either aspect of the Babos test. [2] The document played virtually no role in the police investigation of the complaint brought to them by Ms. CD. While referenced in an information to obtain (“ITO”) a warrant and production orders dated May 1, 2019, the document was included for completeness of the narrative not relevance and its excision would have no impact on the warrant and production orders so obtained. Mere possession of a copy of the document cannot in any way impair the fairness of Mr. RK’s. Police learned nothing from the document that was not already in the other documents handed over to the police along with it. The residual category of the Babos test is similarly not engaged as the inadvertent or even sloppy behaviour of police in the handling of this document and the circumstances by which it came into the police’s possession in no way offend societal notions of fair play and decency and pose no risk of undermining the integrity of the justice system. [3]
[12] The privilege that attached to the document when it was mailed by the estate solicitor has not been lost in the circumstances here present and its use in evidence is at all events precluded unless that privilege is waived at trial. The exclusion of the document from evidence at trial through the application of the ordinary rules of privilege (which I am ordering) is an adequate remedy for the police failure to safeguard the privilege that ought to have been protected when the document was first brought to their attention.
[13] I also found that s. 8 of the Charter was simply not engaged on the facts of this case. There is no “search” nor “seizure” by the state within the meaning of s. 8 when a citizen attends a police station of her own volition to report a suspected crime and brings in support of her report a volume of documents curated by her and carried to them without police direction. Police were entitled to hear the complaint and to receive and review the documents Ms. CD placed before them. [4] Confirming the complainant’s pre-existing intention to leave the documents with police does not amount to directing or requesting the copies of the letters and the greeting cards in any real sense – they were already physically in police possession and the complainant had no intention of requiring their return.
[14] I undertook to deliver more detailed reasons for my decision. These are those reasons.
Background facts
[15] Ms. CD owned a condominium in Toronto jointly with her spouse, Mr. RK with whom she had been living in a conjugal relationship for several years by late 2018. The condominium included two lockers where both spouses had various boxes of items stored. Their relationship had deteriorated to the point of separation by about September 2018, with Ms. CD remaining in occupation of the jointly owned condominium, while Mr. RK moved out.
[16] Prior to their separation, Mr. RK was in the habit of picking up the couple’s mail from the mailbox in the building and bringing the mail for both of them to their unit. Ms. CD seldom went to the mailbox herself. After their separation, this practice continued to some degree. Mr. RK returned to the building frequently if not daily to pick up his mail from the mailbox in the building but leaving Ms. CD’s mail to be picked up by her. Ms. CD did so but appears to have attended the mailbox less frequently. The separation at this point was relatively amicable as separations go. The parties communicated with each other civilly and reconciliation was raised as a prospect from time to time.
[17] The relationship between the two deteriorated somewhat after an incident at the Sherway Gardens mall on December 12, 2018. The details of the incident are not relevant beyond the fact that Ms. CD saw Mr. RK in the company of the co-defendant Ms. AB, a woman whom Ms. CD believed Mr. RK was having an affair with. Nevertheless, although frayed, their relationship remained cordial, and they bought each other Christmas presents.
[18] On December 26, 2018, Ms. CD picked up the mail from the unit’s mailbox and brought it upstairs. She assumed that Mr. RK had already picked up his own mail by that point. She proceeded to open all the mail without looking at the addressees. One of the items of mail she opened was from TD Bank, a fact that was not unusual because she had an account there and received correspondence from this bank from time to time. This particular letter from TD, however, was not addressed to her. It was addressed to the Estate of Heinz Sommerfeld c/o Mr. RK. Inside was a statement for a Registered Retirement Income Fund (“RRIF”) account for the month of November 2018.
[19] I accept Ms. CD’s evidence that she did not notice the addressee before inadvertently opening the envelope assuming it was addressed to her. Mr. RK had moved out several months prior to that time and had either arranged to forward his mail elsewhere or picked up his own mail before her visits to the mailbox. This was the first time since their separation that mail addressed to Mr. RK had been left in the mailbox when she picked up the mail downstairs in the building.
[20] The correspondence was certainly strange. She knew that Mr. RK was not old enough to have a RRIF account and she had never heard of Mr. Sommerfeld in all the years she had known Mr. RK. She thought the letter strange but did nothing further with it at that time other than take a photo of it and the envelope it came in. It was the Christmas season and things were busy.
[21] She mentioned the letter to Mr. RK when he came to dinner a short while later. He said that the letter was simply a mistake from the bank and told her a story about a deposit being put on the condominium in a weird name. She believed his explanation and thought nothing further about the matter at the time. Mr. RK retrieved the original of the letter at the time.
[22] On January 25, 2019, a second letter arrived in the mailbox, also addressed to the Estate of Mr. Sommerfeld c/o Mr. RK. By this time, the relationship was quite definitively on the rocks with no apparent prospect of reconciliation. The parties had retained lawyers to handle their separation and a letter from Ms. CD’s counsel to Mr. RK’s counsel on January 24, 2019 appears to have caused the relationship to become somewhat hostile. At all events, Ms. CD was clear that “it was over” in her mind by this time.
[23] Once again, Ms. CD maintains that she opened the letter without noticing that it was not addressed to her. She was cross-examined on this point rather closely and she stood her ground. While I am somewhat more skeptical about her explanation of how she came to open this particular item of correspondence, I cannot conclude even on a balance of probabilities that she knowingly opened mail addressed to another. This particular letter was also addressed to the Estate of Heinz Sommerfeld c/o Mr. RK. Unlike the previous letter, it was not from a sender she was used to dealing with (i.e., TD Bank) but came from a law firm. However, this was only the second time a letter addressed to Mr. RK had remained in the mailbox by the time she picked up her mail. She was under the assumption he had taken steps to change his address and was distracted when opening this mail.
[24] The envelope contained a letter dated January 14, 2019 from a law firm seeking collection of an invoice from August 2018 that was also enclosed. In scanning the description of services rendered contained in the invoice, Ms. CD “immediately” noticed the name of Ms. AB, the co-defendant in this case and the woman Ms. CD believed had been having an affair with her now-former spouse.
[25] She photographed the envelope and the enclosed letter and sent a photo of the letter to Mr. RK immediately. Her text message to him after sending the photo of the correspondence was acidic. She asked if this was “some kind of sick joke” and whether this was the thing that he had earlier told her he “knew nothing about”. She accused him of “doing something illegal”. He replied to her that “the only illegal thing was you opening my mail”.
[26] In addition to sending a photo of this letter to her former spouse, Ms. CD also sent copies to her own lawyers.
[27] Prior to the separation of the couple and the arrival of these two letters, Mr. RK had applied for and been granted a Certificate of Appointment as Estate Trustee by this court and was confirmed as executor of the estate of Mr. Sommerfeld. There is no challenge to Mr. RK’s standing as the addressee of the two letters.
[28] In the days and weeks that followed the opening of this second letter, the couple negotiated the details of their separation through their respective lawyers. Ms. CD sent copies of the January 14 lawyer’s letter to her own lawyers who proceeded to investigate the matter further. Among other things, they sent a process server to the Brampton Superior Court office and retrieved copies of various items from the court file dealing with the Estate of Mr. Sommerfeld and provided copies of these documents to Ms. CD.
[29] On February 11, 2019, Mr. RK’s lawyer wrote to Ms. CD’s lawyer a letter with the re line “Konashewych and Dixon – Separation”. The two-page letter was divided into six sections, each addressing various issues that had arisen in the separation proceedings including such items as alleged harassment of Mr. RK by Ms. CD, the partition and sale of the condominium, Mr. RK’s desire to attend the condominium to remove his personal property, the mortgage, etc. The first named subject was “Ms. Dixon’s viewing of Confidential/Privileged Documents”. The description of this issue made no mention of the “Estate of Heinz Sommerfeld” by name but did refer to the name of the law firm whose name appeared on the invoice opened by Ms. CD on January 25, 2019. The letter asked for the immediate return of the original documents and the envelope that they had come in. Mr. RK at least knew that pictures of the January 14, 2019 lawyer’s letter were on Ms. CD’s phone since she sent them to him by text message on January 25, 2019. The February 11, 2019 letter from his lawyer sought the return of the original letter (which was returned along with the envelope) but made no mention of the copies. I shall return to the subject of the February 11, 2019 letter below.
[30] In late February and early March, Ms. CD, her mother, and a cousin had been going through the various documents obtained by Ms. CD’s lawyers regarding Mr. RK’s involvement with the Estate of Mr. Sommerfeld. She was unsure what to do and wary of simply walking into a police station to make a complaint. She discussed the matter with her uncle. On March 6, 2020, her uncle contacted a reporter he knew who placed a call to a contact of hers at the Toronto Police Service (“TPS”) with the end result that arrangements were made “within an hour” for Ms. CD to go to the police station to meet with detectives to discuss the matter.
[31] Ms. CD gathered copies of the documents that she had collected. She described these as being a “binder full” of documents. This included the documents her lawyers had obtained from the court file regarding the Estate of Mr. Sommerfeld. Ms. CD went to the police station with her mother and cousin.
[32] The documents she brought with her to the station were the ones she selected. Police did not request any particular document. She went to the police station and met Detective Constable Diane Kelly and Detective Gail Regan. Both detectives were assigned to the Financial Crimes Unit of the TPS, and both were cross-examined in connection with this application.
[33] Ms. CD’s initial meeting with D.C. Kelly and Det. Regan lasted about two hours. Both officers considered this an intake meeting to find out what the nature of the complaint was. They did not know in advance what the complainant would be bringing to show them. Ms. CD, assisted by her mother and cousin, proceeded to walk both officers through a narrative of what they had learned and to describe the various documents she had brought with her to leave with them.
[34] The bundle of documents so presented included the two letters addressed to Mr. Sommerfeld’s Estate described earlier and the two greeting cards among various other documents and parts of the court file. While both police officers agreed that they “requested” the documents from Ms. CD during this meeting, that term reflects no more than the fact that they confirmed that Ms. CD was content to leave the documents with them for their review. Having assembled them and travelled to the police station for that precise purpose, Ms. CD of course agreed. There can be no question of this amounting to a “seizure” of any of the documents by police simply because police confirmed the self-evident intent of Ms. CD to leave the documents with them.
[35] On March 8, 2019 a second interview took place. By this time, both officers had been able to review the bundle of documents left with them. The interview was conducted in an interview room and was videotaped.
[36] At one point during the interview, Ms. CD described a point of dispute that had arisen during her separation proceedings with Mr. RK, the details of which are quite irrelevant to this application or this trial. In summary, Ms. CD had found a flash memory card containing a number of sensitive digital photographs that led Ms. CD to believe that Mr. RK had been unfaithful to her for a long time. She sent some of these photographs to him ultimately leading to the complaints that surfaced in the February 11, 2019 letter his lawyer sent to hers about her alleged harassment of Mr. RK. Det. Regan asked her about this harassment complaint during the interview and Ms. CD mentioned the exchange of lawyers’ letters on the subject that this had given rise to. Det. Regan asked if she could see the letters and Ms. CD agreed. Shortly after the interview was concluded, she followed through and sent an email to Det. Regan enclosing a copy of the February 11, 2019 letter from Mr. RK’s lawyers referenced above. The text of the email was as follows with the subject heading “Really Faithful”: “Email from Rob’s lawyer to mine about harassing when I send his dirty pictures. Within the hour he showed up to the condo on Feb 10th.”
[37] A great deal of the cross-examination of both Det. Regan and D.C. Kelly focused on this email and the letter attached. The applicant sought to establish that both police officers knew they had received a copy of a letter (the January 14, 2019 letter enclosing the lawyer’s invoice) from Ms. CD that was not hers to give and was subject to solicitor-client privilege and also knew that there had been an assertion of privilege over the letter in question because of the contents of the February 11, 2019 letter from Mr. RK’s lawyers to Ms. CD’s.
[38] I shall address what the officers knew or ought to have known about the January 14, 2019 letter addressed to the Estate of Heinz Sommerfeld below. I do not find that their state of knowledge in relation to the privilege issue was impacted by the receipt of the February 11, 2019 letter on March 8, 2019. In reaching this conclusion, I have considered among other things the following:
a. The February 11, 2019 letter was never specifically discussed in the March 8 interview except in a context entirely divorced from the January 14, 2019 letter from the estates lawyer – the subject matter according to Ms. CD was a claim that Mr. RK’s family lawyer had made that Ms. CD was harassing Mr. RK and it was a letter in relation to this topic that Det. Regan had asked for (and received);
b. While the text of the February 11, 2019 letter certainly asserts a claim of privilege over a letter from a law firm which a comparison to the January 14, 2019 letter would confirm was the firm handling the Estate of Mr. Sommerfeld, the February 11, 2019 letter made no reference to the Estate or Mr. Sommerfeld as such and addressed a number of issues that pertained to the family law dispute between Ms. CD and Mr. RK;
c. The family law dispute between Ms. CD and Mr. RK was of no relevance or interest to the investigation the two officers were just beginning to undertake in relation to an allegedly forged will of Mr. Sommerfeld and police already had the Estate file that Ms. CD had left with them for review;
d. While D.C. Kelly had access to the case file where the February 11, 2019 letter and the email were electronically filed, she was not copied on the email from Ms. CD, nor did Det. Regan find it sufficiently material to forward to her partner on the file when she received it; and
e. While Det. Regan agreed that she read the letter when it was received, she simply did not focus on the question of solicitor-client privilege because none of it was related to the investigation she was only just beginning to undertake which concerned the will of Mr. Sommerfeld and not the family law dispute.
[39] Ms. CD sent various other documents to the detectives, some the object of specific requests and others quite unsolicited. In the former category would be copies of photographs that she had taken with her phone and with Mr. RK’s assistance of various of his credit cards from before their separation. In the latter category would be photographs of various boarding passes.
[40] Over the months that followed, the detectives pursued their investigation. Production orders were sought and obtained to get details of banking transactions. A warrant was sought for the production of the original will in the court file. The ITO filed in connection with some of these requests dated May 1, 2019 contains an exhaustive account of all the steps undertaken in the investigation. Among the steps and documents listed is the January 14, 2019 letter and its attached legal account to the Estate of Mr. Sommerfeld. While the presumptively privileged document was thus referenced in the ITO, virtually all the recited information in it was clearly available from the other listed sources and the document did little more than contribute to the narrative for the sake of completeness.
Issues Decided
[41] The following issues were raised by this Application and decided:
a. Did police violate s. 7 of the Charter in their treatment of the January 14, 2019 letter? Yes.
b. If so, does the violation warrant the remedy of a stay of proceedings under s. 24(1) of the Charter? No.
c. Did police obtain the letters addressed to the Estate of Mr. Sommerfeld c/o Mr. RK opened by his former spouse or the greeting card belonging to Mr. RK pursuant to a search or seizure contrary to s. 8 of the Charter? No.
d. If so, what remedy, if any, is appropriate under s. 24(2) of the Charter? No remedy is required.
Analysis and Discussion
(a) Did police violate s. 7 of the Charter in their treatment of the January 14, 2019 letter?
[42] The evidence establishes what common sense directs. Any person reviewing the January 14, 2019 letter from the estate solicitor in any detail could not help but note (i) that it was a letter directed to the Estate of Mr. Sommerfeld c/o Mr. RK; (ii) that the letter was from a lawyer directed to his client seeking payment of outstanding fees and containing the account detailing those fees; and (iii) that there was no basis to infer that either the lawyer or the apparent client had given any form of consent for that correspondence to be found in the hands of any but the named client. Those incontrovertible facts certainly rise to the level of “knew or ought to have known” in the case of both police officers into whose hands Ms. CD delivered a copy of the January 14, 2019 letter along with her explanation of how she inadvertently opened the letter and came to view its contents.
[43] Armed with those facts, both detectives had enough before them to know at the very least that there was an issue of solicitor-client privilege raised by taking that document into their possession and, had they reflected upon the matter for a moment, they would have realized (as they both did when examined on the matter) that the prudent course of action would have been to seek advice from Crown counsel as to what steps ought to be taken thereafter in consequence. The document was a red flag that ought to have received more attention than it did.
[44] The role of solicitor-client privilege as a principle of fundamental justice within the meaning of s. 7 of the Charter has been underscored by the Supreme Court of Canada. [5] In Lavallee, Arbour J. writing for the majority held that this privilege:
[C]annot be forcibly discovered or disclosed and it is inadmissible in court. It is the privilege of the client and the lawyer acts as a gatekeeper, ethically bound to protect the privileged information that belongs to his or her client. Therefore, any privileged information acquired by the state without the consent of the privilege holder is information that the state is not entitled to as a rule of fundamental justice. [6]
[45] The distinguishing feature of this case – that the privilege was not violated through any action or decision of the state but by the actions of a private citizen – may require a nuanced response in terms of how the privilege is to be treated once the document comes into the possession of a state actor, but this does not affect the principle. The privilege holder – the Estate and its appointed Executor Mr. RK – did not and have never consented to the document being in the hands of Ms. CD or of the police. Where through inadvertence or otherwise the document has found its way into the hands of the state without the consent of the privilege holder, actions ought to be taken to cure the problem as far as reasonably practicable in the circumstances. [7]
[46] There is some question regarding the degree to which privilege applies to a solicitor’s account and the document in question in this case is a letter seeking payment of such an account without any reference to any legal advice given. In Maranda, the Supreme Court found that a solicitor’s account should be considered presumptively privileged even if that presumption might potentially be set aside down the road. [8]
[47] It is logical in my view that police action in relation to such a presumptively privileged document ought not to be judged in hindsight based on whether the presumption in the light of hindsight – and without any curative or restorative actions having been taken or even considered – is found to be rebutted. What particular steps ought to be taken in any particular case must be considered in light of the circumstances existing as soon as possible after the document comes into the possession of police and prior to subsequent steps that might muddy the waters or impair the ability to put curative measures in place. What measures ought to be applied after the issue is raised is not something I can pre-determine as that will be a fact-specific inquiry. I do not conclude however that it is inevitable when solicitor-client privilege is at play that the target of a nascent police investigation must be advised of the existence of the investigation before it might otherwise be appropriate to do so.
[48] I am satisfied on the facts of this case that police inaction following receipt of a document presumptively subject to solicitor-client privilege at a point in time where curative actions ought to have been considered to preserve, protect, and restore the privilege as far as reasonably practicable amounted to a breach of s. 7 of the Charter.
(b) Does the violation warrant the remedy of a stay of proceedings pursuant to s. 24(1) of the Charter?
[49] I have already noted that I cannot infer that Ms. CD deliberately opened the envelope containing the presumptively privileged document. Still less can I find that the detectives hearing her explanation of how she opened it ought to have disbelieved her explanation. I have also not found anything wilful in the failure of the officers to take steps to seek advice on what to do with this presumptively privileged document when Ms. CD handed it to them in the bundle of documents she brought with her on March 6, 2019. While they missed the opportunity to reflect even casually upon the red flag that a presumptively privileged document ought to have raised with them, the copy of the letter was one in a rather thick bundle of documents, and it had no apparent relevance to the investigation they were about to undertake. The amount of fees charged by the estate lawyer was not a subject of their investigation and, had they examined the account in any detail, the details of services provided would not have alerted them to anything that was not already in their possession or readily available on the public record through the other documents given to them by Ms. CD. The letter was essentially spent as far as relevance to their investigation was concerned and it surfaced again from the file only at the stage where an ITO was prepared, and it only occupied a very limited place in that document as part of the narrative explaining how it was that Ms. CD came to bring the complaint to their attention. The imperative of full, frank, and true disclosure in an ITO often leads to “if in doubt, include it” reactions and this particular ITO would be an instance of that.
[50] Crown counsel asked me to consider in what way the investigation might have changed had the document never been delivered to police by Ms. CD. Having considered the matter carefully, I must conclude that absolutely nothing in the evolution of the investigation would have changed.
[51] That observation being made however, proper advance consideration of the privilege issue would have permitted the early sealing of the document. That simple step, which Crown counsel would undoubtedly have advised at a minimum, could have been accomplished quite simply without any impact at all upon the investigation or the ITO. This simple and early curative opportunity was lost as a result of police inaction. On the other hand, there were limits to how far the genie could be put back into the bottle after March 6, 2019 when Ms. CD handed the document over. Ms. CD cannot unsee what she has seen nor be compelled to forget what she knows. The police only required the name of Mr. Sommerfeld on the outside of the envelope (which is not privileged) to recreate the prior private investigation of the public record undertaken by Ms. CD’s family law counsel in a matter of days. It cannot be said that inaction was without consequences, but the consequences that might have been avoided are quite minor on a spectrum of harm which is predicated upon the existence of a breach of s. 7 in the first place.
[52] I was asked to infer sinister motives on the part of the two officers for not seeking advice in relation to this presumptively privileged document. I do not do so here. I accept that they did not turn their minds to the question before this application for the reasons already noted. Sloppiness and even negligence might describe their actions in relation to this document – wilful intent to subvert the constitutional rights of Mr. RK does not.
[53] These conclusions are in my view dispositive of the s. 24(1) question.
[54] The conclusion that a breach of s. 7 has occurred does not lead to an automatic conclusion that a s. 24(1) stay of these proceedings ought to issue.
[55] First, there is a lesser remedy which, while imperfect, is nevertheless an adequate remedy to the harm caused by police inaction. A privileged document cannot be admitted in evidence against the client absent waiver or consent. Neither has occurred in this case. Application of the ordinary rules of evidence and privilege without reference to s. 24 of the Charter permits an order to be made precluding the use of the document in evidence. I am so ordering.
[56] This remedy restores the privilege associated with the document to substantially the state it was in immediately before Ms. CD walked into the police station on March 6, 2019 as if she had simply removed the one document from her binder of documents and left it at home or even destroyed it (by then, she had returned the original to Mr. RK’s lawyers but had retained the copy of it on her phone that she had when she originally sent it to Mr. RK by text message on January 25, 2019).
[57] Second, the Supreme Court of Canada in Babos has clearly ruled that the remedy of a stay is a “drastic” one to be resorted to only rarely and in the “clearest of cases”. [9] It cannot be said that either the mere possession of the document or the passing reference to it in an ITO have or could reasonably be expected to have an impact on trial fairness. The second or residual branch of the Babos test is similarly not engaged unless the state conduct risks undermining the integrity of the judicial process. Whatever might be said about the actions of Ms. CD on January 25, 2019 in opening the letter, it cannot be said that she acted at the direction of or as an agent of the state.
[58] As Doherty J.A. noted in Currado, there “is a significant difference between state conduct which is unwise, unnecessary, inappropriate, or even improper, and state conduct that goes so far as to be properly characterized as ‘offensive to societal norms of fair play and decency’”. [10] The failure of police to seek further instructions upon the receipt of a presumptively privileged document may have been unwise, inappropriate or even improper – it does not offend societal norms of fair play and decency.
[59] I find that no remedy under s. 24(1) of the Charter in relation to the breach of s. 7 that I found to have been made out should be granted. This aspect of the application is dismissed.
(c) Were any the letters addressed to the Estate or Mr. Sommerfeld c/o Mr. RK or Mr. RK’s greeting cards obtained by police pursuant to a search or seizure contrary to s. 8 of the Charter?
[60] The applicant alleges that police breached s. 8 of the Charter by possessing (1) copies of the two letters mailed to him and addressed to his attention in care of Mr. Sommerfeld’s estate and (2) the greeting cards addressed to him but removed by his former spouse from among his personal effects in the storage locker shared by them in their jointly-owned condominium unit.
[61] Ms. CD, Mr. RK’s former spouse, is the person who obtained the above documents in the manner I have described and subsequently provided them to the police. She was not acting as an agent of the state in any way at the time she obtained each of them. The documents were obtained reviewed and, in the case of the letters, copied by her before contact was made with police. Her actions were her own. No steps to approach police had yet been taken; no directions or even suggestions of any sort from police had been provided. Indeed, police had had no contact or knowledge of Ms. CD up to this point; they were not yet aware that these documents existed nor were they investigating Mr. RK or Ms. AB.
[62] The Charter is the private citizen’s shield against state action that might infringe the fundamental rights guaranteed by it. The rights and remedies between private citizens are fundamentally the domain of the civil law, not the Charter. As private rather than state actions, Ms. CD’s actions did not infringe upon any Charter rights of the applicant.
[63] Any analysis of the application of s. 8 of the Charter to the facts of this case must start from that basic observation. The state’s involvement with this case began when Ms. CD crossed the threshold of the police station with a bundle of documents chosen by her in hand to lay her complaint before police. The contents of that bundle of documents were not then known to police and they had no hand in curating it.
[64] Section 8 of the Charter guarantees the right of everyone “to be secure against unreasonable search or seizure.” If the reception of the documents brought to police by Ms. CD (and the family members accompanying her) is to have s. 8 consequences, that action must be reasonably capable of being described as a “search” or a “seizure”.
[65] There is no definition of “search” or of “seizure” that encompasses police reception of documents voluntarily brought to police by the possessor of them, regardless of the circumstances in which the private person came into their possession, at least where those circumstances did not include acting at the direction of or as an agent of the state. Ms. CD had documents in her possession which she thought contained evidence of a serious crime. She conceived her duty as a citizen to be to bring them to police and make a report. Police had every right if not a duty to listen to that complaint.
[66] In Cole, the majority decision of the Supreme Court found that police had the undoubted right to receive the laptop of the accused from his school board employer and to seek a warrant to search the contents of the laptop based on the information so provided by the employer despite the expectation in privacy of the employee to whom the laptop had been issued. [11]
[67] In Orlandis-Habsburgo, a pattern of suspicious consumption of electricity was brough to the attention of police by the utility provider. Police undertook an investigation with the assistance of the utility provider, requesting and receiving various elements of additional analysis and information. That combined investigation resulted in police receiving data from the provider in which the accused had a reasonable expectation of privacy. As such, the information was characterized by the court as the product of a warrantless search. But the court disagreed with the proposition that the passive receipt by police of information, however obtained, engages s. 8:
I have considerable difficulty with the submission that s. 8 is engaged if the police look at information in which an accused has a legitimate privacy interest, even if that information is brought to the police by an independent third party acting on its own initiative. On that approach, s. 8 would be engaged if a “whistleblower” took confidential documents belonging to her employer to the police to demonstrate the employer’s criminal activity. Must the police refuse to look at the documents to avoid violating the employer’s s. 8 rights? As Duarte teaches, it is one thing to say that Canadian values dictate that the state’s power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual’s private information is cloaked in the protection of s. 8 no matter how that information comes to the police. [12]
[68] In Amdurski, police received a cell phone from the mother of a child which contained various messages from the accused. Molloy J. found that no warrant was required to receive or search the phone and there was neither a search nor a seizure of the phone voluntarily provided by the owner thereof for that purpose. [13]
[69] Amdurski contains a thorough review of the applicable jurisprudence and is from a judge of this court. I am bound by that ruling pursuant to the Supreme Court’s direction in R. v. Sullivan [14] and, at all events, I am persuaded by its reasoning.
[70] None of the documents in question came into police possession as a result of a search or seizure by the state. Police were entitled to receive and review them and to receive the fruits of the private investigation undertaken by Ms. CD and her counsel without a warrant.
(d) What remedy if any is appropriate under s. 24(2) of the Charter?
[71] Having found that s. 8 is inapplicable on the facts of this case, there is no basis to exclude any evidence pursuant to s. 24(2) of the Charter. For the sake of completeness, I would add the following in relation to s. 24(2) were there to be a disagreement regarding my s. 8 conclusions.
[72] The starting point for an analysis of the potential application of s. 24(2) of the Charter is a proper framing of the question and of the context. I have already determined – through the application of ordinary rules of evidence – that the January 14, 2019 lawyer’s letter addressed to the Estate is presumptively privileged. There is no need to suppress this document using the extraordinary remedies available under the Charter. It is inadmissible without the consent of the beneficiary of the privilege. The Crown has indicated that it has no intention of attempting to introduce the document into evidence.
[73] I have already described my conclusion that the presumptively privileged document made no material contribution to the police investigation beyond contributing to the narrative of the private investigation undertaken by Ms. CD before police became involved in the matter. There is not a single step in the investigation undertaken by police that can reasonably be supposed to have been the fruit of the presumptively privileged letter Ms. CD included in the bundle of documents she brought to police for review. The excision of the document from the ITO could not reasonably be supposed to have had any impact upon the decision to issue the warrants and productions orders sought.
[74] These observations are more than sufficient to dispose of any suggestion that any evidence that might otherwise be admissible at the trial can be said to have been “obtained in a manner” that breached the Charter rights of the accused. While the s. 7 Charter protected right of solicitor-client privilege is an important one, the impact of the state conduct upon the accused as a result of the breach of this right that occurred was negligeable, while the impact upon the interests of justice in pursuing charges of the gravity of those being pursued would be great.
Disposition
[75] For the foregoing reasons, I dismiss the application but rule that the letter of January 14, 2019 may not be introduced into evidence unless privilege in respect thereof is waived.
June 14, 2023
S.F. Dunphy J.
[1] See Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381, at paras. 18-19. [2] R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31, citing R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 68. See also Babos, at paras. 30, 32-35. [3] See R. v. Currado, 2023 ONCA 274, at paras. 16-18. [4] See R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 73; R. v. Orlandis-Habsburgo, 2017 ONCA 649, 352 C.C.C. (3d) 525, at para. 34; R. v. Amdurski, 2022 ONSC 1338, at paras. 22-28. [5] See Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, [2016] 1 S.C.R. 336, at para. 28. [6] Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 24. [7] See Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189, at para. 34. [8] See Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193. [9] Babos, at para. 31, citing O’Connor, at para. 68. [10] At para. 17, referring to Babos, at para. 35. [11] See Cole, at para. 73. [12] Orlandis-Habsburgo, at para. 34. [13] See Amdurski, at paras. 22-28. [14] 2022 SCC 19, 413 C.C.C. (3d) 447, at paras. 73-78.