R. v. Swearengen, 2003 CanLII 16208 (ON SC)
Criminal Purpose Exception
[8] Not all communications between solicitor and client are protected. One of the well-established exceptions is when the communication with the solicitor is to advance a criminal or fraudulent purpose. Mr. Justice Dickson in Solosky v. the Queen (supra) noted, at pp. 835-36 S.C.R., p. 507 C.C.C.:
. . . if a client seeks guidance from a lawyer in order to facilitate the commission of a crime or a fraud, the communication will not be privileged and it is immaterial whether the lawyer is an unwitting dupe or knowing participant. The classic case is R. v. Cox and Railton
(1884), 14 Q.B.D. 153 in which Stephen J., had this to say
(p. 167): "A communication in furtherance of a criminal purpose does not 'come in the ordinary scope of professional employment'".
(1884), 14 Q.B.D. 153 in which Stephen J., had this to say
(p. 167): "A communication in furtherance of a criminal purpose does not 'come in the ordinary scope of professional employment'".
[9] The criminal purpose exception to solicitor-client privilege was also affirmed in Descôteaux v. Mierzwinski and Attorney-General of Quebec, supra. In setting out communications with a lawyer that will not be confidential, Lamer J. (as he then was) stated, at p. 873 S.C.R., p. 398 C.C.C.:
Communications made in order to facilitate the commission of a crime or fraud will not be confidential either, regardless of whether or not the lawyer is acting in good faith. [page28]
He also commented that, in some instances, the communication itself may be the actus reus of the crime. Mr. Justice Stephen's observation in R. v. Cox and Railton (1884), 14 Q.B.D. 153, was cited with approval in Descôteaux, at p. 881 S.C.R., p. 404 C.C.C.:
The reason on which the rule is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice, and to those of the administration of justice. Nor do such communications fall within the terms of the rule . . . .
[Emphasis in original omitted]
[10] In R. v. McClure, 2001 SCC 14 (CanLII), [2001] 1 S.C.R. 445, 151 C.C.C. (3d) 321, Mr. Justice Major stated, at para. 37:
. . . only communications made for the legitimate purpose of obtaining lawful professional advice or assistance are privileged.
[11] The accused submits that if the witness interview notes are ordered produced, there will be a chill in the defence bar when conducting interviews of witnesses and making investigations related to a client's case. This argument is less persuasive given that it is the lawyer's notes sought to be produced here, and not the witnesses' own statements. Society has an interest in ensuring that solicitor-client privilege is not used as a vehicle for undermining the legal system.
[12] Privilege does not attach to communications made for a criminal purpose. There is no societal interest in permitting an individual to hide a criminal purpose behind the wall of solicitor-client privilege. To do so would undermine the integrity of the legal system; it would undermine the credibility of lawyers as officers of the court, a role that is critical to the functioning of the legal system.
The Burden of Proof
[13] The burden of proof in establishing that the criminal purpose exception applies to documents seized from a lawyer's office falls on the claimant. In this instance, it is the Crown. The standard is a prima facie case: that is, evidence that goes beyond allegation, but is not as cogent as proof on a balance of probabilities. See R. v. Hilborn, [1990] B.C.J. No. 1141 (QL) (S.C.). Spencer J. quotes with approval the criteria for prima facie proof at the investigative stage described by Ewaschuk J. in R. v. Whitmore reflex, (1987), 41 C.C.C. (3d) 555 (Ont. S.C.J.) [at p. 565]:
. . . the justice must be satisfied that there is some evidence before him from the informant and or his witnesses that the accused has committed the offence alleged against him and that there is some evidence against him on all the essential elements of the offence. [page29 ]
[14] In the case at bar, the two complainants testified at the preliminary inquiry about communications they made to the accused's former lawyer, in the face of a pending criminal charge, at the request of the accused. The transcript of their evidence is before this court.
[15] I am urged by the defence to taken into account the credibility of these witnesses, in that they have admitted lying to Mr. Dubinsky. While credibility may, in certain instances, be a relevant consideration for the court in determining whether a prima facie case has been made out by the claimant, I do not propose to usurp the role of the finder of fact in this case.
[16] The Crown has discharged its burden of establishing a prima facie case that the communication was for a criminal purpose. I am satisfied that the notes made by the lawyer reflect part of the actus reus of the alleged offence.
[17] Accordingly, the lawyer's notes of his discussions with the two witnesses do not constitute work product, and are not subject to the protection of solicitor-client privilege. The notes will be producible to the Office of the Crown Attorney and the police, subject to my comments below.
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