R. v. Creswell, 2000 BCCA 583
Disclosure of the Legal Opinions
(i) Was there a solicitor-client relationship?
[32] Before turning to the issue of disclosure, the court first examined whether a solicitor-client relationship existed between the Department of Justice and the RCMP. In concluding that such a relationship existed, the court said this, at para. 49:
The solicitor-client privilege is based on the functional needs of the administration of justice. The legal system, complicated as it is, calls for professional expertise. Access to justice is compromised where legal advice is unavailable. It is of great importance, therefore, that the RCMP be able to obtain professional legal advice in connection with criminal investigations without the chilling effect of potential disclosure of their confidences in subsequent proceedings.
The court quoted with approval this passage from Wigmore on Evidence, vol. 8 (McNaughton rev. 1961) §2292, p. 554):
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived. [Numbering omitted.]
[33] The court concluded that the consultation by a member of the RCMP and the Department of Justice solicitor in the case fell squarely within the Wigmore definition.
(ii) Relevance
[34] The court accepted that the Crown may assert “good faith” on the part of the police officers as a factor for the court to consider in deciding whether to grant a stay of proceedings to the accused. Where the RCMP and their counsel choose to rely on legal opinions to support their argument of good faith, those opinions are relevant and probative of the issue.
[35] The court was clearly of the view that if the Crown asserted good faith, it was open to the defence not only to refute it, but to show bad faith. This is evident in several passages in the judgment. When dealing with the Ontario Court of Appeal conclusion that disclosure of the opinion would have made no difference to the outcome, the court said this, at para. 73:
I do not agree, with respect, that non-disclosure of information clearly relevant to the good faith reliance issue can properly be disposed of by adverse inferences. The appellants were entitled to disclosure. The Court of Appeal said that it was prepared to assume the worst against the RCMP and on that basis felt able to use s. 686(1)(b)(iii) of the Code to uphold the decision of the trial judge. The difference between my approach and that of the Court of Appeal is that in my view, with respect, a Department of Justice opinion pronouncing the reverse sting to be unlawful would weigh differently in the balancing of community values than a Department of Justice opinion to the opposite effect. Police illegality of any description is a serious matter. Police illegality that is planned and approved within the RCMP hierarchy and implemented in defiance of legal advice would, if established, suggest a potential systemic problem concerning police accountability and control. The RCMP position, on the other hand, that the Department of Justice lent its support to an illegal venture may, depending on the circumstances, raise a different but still serious dimension to the abuse of process proceeding. In either case, it is difficult to assume “the worst” if neither alternative has been explored to determine what “the worst” is. Because the RCMP made a live issue of the legal advice it received from the Department of Justice, the appellants were and are entitled to get to the bottom of it.
[Emphasis added.]
[36] By the time the Campbell case was heard, the new immunity provisions of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, had been introduced. The Crown took the position that this tended to demonstrate community acceptance of reverse sting operations, and thus it could not be said that the undercover operation that had been utilized by the police would shock the conscience of the community. The court dealt with this point at para. 45:
The point here, however, is slightly different. Superadded to the issue of illegal conduct is the possibility of a police operation planned and executed contrary to the advice (if this turns out to be true) of the Department of Justice. The suggestion is that the RCMP, after securing the relevant legal advice, nevertheless put itself above the law in its pursuit of the appellants. The community view of the police misconduct would, I think, be influenced by knowing whether or not the police were told in advance by their legal advisers that the reverse sting was illegal. Standing by itself, therefore, the subsequent 1996 enactment addresses only part of the issue.
[Emphasis added.]
(iii) Waiver
[37] The court made it clear that waiver must be voluntarily undertaken by the party who enjoys the privilege. Waiver cannot be forced on a party through questions raised by the opposing side on cross-examination. At para. 69 the court quoted with approval from the reasoning of the United States District Court for the District of Columbia in United States v. Exxon Corp., 94 F.R.D. 246 (1981) at pp. 248:
Most courts considering the matter have concluded that a party waives the protection of the attorney-client privilege when he voluntarily injects into the suit the question of his state of mind. For example, in Anderson v. Nixon, 4444 F.Supp. 1195, 1200 (D.D.C. 1978), Judge Gesell stated that as a general principle “a client waives his attorney-client privilege when he brings suit or raises an affirmative defense that makes his intent and knowledge of the law relevant.”
[Emphasis added.]
Applying those principles to the case before it, the court concluded, at para. 70:
The Crown led evidence from Cpl. Reynolds about his knowledge of the law with respect to reverse sting operations — he testified that he had read the Superior Court decision in [R. v.] Lore, [Sup. Ct., No. 500-01-013926-891, March 8, 1991], and was of the view that the operation in question was legal. But Cpl. Reynolds also testified, in answer to the appellants’ [Campbell and Shirose] counsel, that he sought out the opinion of Mr. Leising of the Department of Justice to verify the correctness of his own understanding. The appellants’ counsel recognized that this alone was not enough to waive the privilege. Cpl. Reynolds was simply responding to questions crafted by the appellants, as he was required to do. Appellants’ counsel accepted that he had no right at that point to access the communications. His comment to the judge was simply that “I certainly don’t want to hear the argument that ‘Oh well, the police acted in good faith because they acted on legal advice’”. The critical point is that the Court did hear that precise argument from the Crown at a later date.
[Emphasis added.]
[38] The Supreme Court of Canada found that the RCMP, by virtue of the position it had taken at trial, had waived privilege. The court noted that in its return to the stay motion at trial the Crown “set out to establish that the police had at all stages acted in good faith and in the belief that the reverse sting was legal”. The court noted too that in the Court of Appeal, the Crown in its factum had asserted good faith, relying on the fact that the RCMP “consulted with the Department of Justice with regard to any problems of illegality”. By raising good faith as a factor to be weighed against invoking the remedy of a stay, the Crown and the RCMP had thus waived the privilege attached to the legal opinions.
(iv) Full answer and defence
[39] Since the court in Campbell had resolved the privilege issue on the basis of waiver, it declined to determine whether the privilege should yield to considerations of full answer and defence. However the court did make these observations, at paras. 65-66:
Another exception to the rule of confidentiality of solicitor-client privilege may arise where adherence to that rule would have the effect of preventing the accused from making full answer and defence [citations omitted]. The Crown concedes the validity of the principle, but suggests that it is irrelevant to an abuse of process application because it applies only where “innocence is at stake”, which is no longer the case in the present appeal. Where innocence is not at stake the Crown contends, the accused’s right to make full answer and defence is not engaged. In this connection the Crown relies upon R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, per McLachlin J., at p. 607, and A.(L.L.) v. B.(A.), 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536, per L’Heureux-Dubé J. at 561. I do not think these cases can be taken as deciding an issue that was not before the Court on those occasions. The Ontario Court of Appeal concluded at p. 200 that the full answer and defence exception applied because “the entire jeopardy of the appellants remained an open issue until disposition of the stay application”. This may be true, but the appellants were not providing “full answer and defence” to the stay application. On the contrary, the appellants are the moving parties. The application is being defended by the Crown. The appellants’ initiative in launching a stay application does not, of itself, authorize a fishing expedition into solicitor-client communications to which the Crown is a party.
As stated, the present appeal is decided on the basis of waiver of solicitor-client privilege and I leave for another day the decision whether, in the absence of waiver, full answer and defence considerations may themselves operate to compel the disclosure of solicitor-client privilege of communications in an abuse of process proceeding and, if so, in what circumstances.
[Emphasis added.]
[40] I will return to these comments presently.
APPLICATION OF R. v. CAMPBELL TO THE CASE AT BAR
a. First Ground of Appeal – Was the Privilege Waived?
[41] On this appeal it was common ground that the legal opinions obtained by the RCMP were privileged communications. The appellant submitted that the trial judge erred in finding that the RCMP had waived the privilege attached to the documents by asserting “good faith” based in part on the legal opinions.
[42] I accept the submission of the Crown that the evidence in this case, as I have set out in paras. 16 to 20, demonstrates that the RCMP and the Crown did not affirmatively resist the application for a stay of proceedings on the basis of a good faith belief. The Crown did not set out to establish good faith. It was only on cross-examination that the existence of the legal opinions and the extent of the reliance upon them by the RCMP was elicited by defence counsel.
[43] I am of the view that the Crown should succeed on its first ground of appeal. The evidence did not establish that the RCMP had waived the privilege which attached to the legal opinions in question.
b. Second Ground of Appeal — Does the Privilege Yield to Full Answer and Defence?
(i) Is innocence at stake where the accused applies for a stay of proceedings?
[44] In R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at p. 340, 68 C.C.C. (3d) 1, the court held that solicitor-client privilege must yield where adherence to the rule would have the effect of preventing the accused from making full answer and defence.
[45] In the earlier case of R. v. Dunbar and Logan (1982), 1982 CanLII 3324 (ON CA), 68 C.C.C.(2d) 13, 138 D.L.R. (3d) 221 (Ont. C.A.), Martin J.A. cited with approval the decision in R. v. Barton, [1972] 2 All E.R. 1192, where Caulfield J. said, at p. 1194:
I think the correct principle is this, and I think that it must be restricted to these particular facts in a criminal trial, and the principle I am going to enunciate is not supported by any authority that has been cited to me, and I am just working on what I conceive to be the rules of natural justice. If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man, then in my judgment no privilege attaches. I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which, if disclosed to the jury, would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown. I think that is the principle that should be followed.
[Emphasis added.]
[46] The Crown accepted this articulation of the principle, but argued that full answer and defence is limited to situations of “innocence at stake” which it says relates only to guilt or innocence of the accused with respect to the offences themselves. Counsel for the Crown submitted that once the appellant conceded that he had committed the actus reus and mens rea of the offences in question, his innocence was no longer at stake. Since privilege must yield only where innocence is at stake, it was not a live issue in this case.
[47] For the purpose of this appeal I will accept the proposition that privilege should yield only where innocence is at stake. However I do not agree that the concept of “innocence at stake” is limited to guilt or innocence of the offences themselves.
[48] In para. 39 of these reasons I have quoted para. 65 of the Campbell case. In that part of the judgment the Court suggests, without deciding, that the appellants in the Campbell case were not making full answer and defence because they were the moving parties in the application to stay the proceedings. This observation appears to be in conflict with the earlier decision of the court in R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, which dealt with informer privilege. Informer privilege, like solicitor-client privilege is subject to the “innocence at stake” exception (R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281). In Scott, Cory J., speaking for the majority, said this about full answer and defence as it relates to informer privilege and the question of entrapment, at pp. 995-96:
The principle [of informer privilege] is thus well accepted. Yet the rule cannot be absolute. In our system the right of an individual to establish his or her innocence by raising a reasonable doubt as to guilt has always remained paramount. Beetz J. in Bisaillon [v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60], acknowledged that there was an exception to the rule protecting informers’ identity. He wrote at p. 93:
The rule is subject to only one exception, imposed by the need to demonstrate the innocence of an accused person. There are no exceptions in proceedings other than criminal.
Certainly, if the informer is a material witness to the crime then his or her identity must be revealed. In Roviaro v. United States, 353 U.S. 53 (1957), the United States Supreme Court held that the informer’s identity would be divulged if the informer was a material witness. Canadian courts have very properly followed the same path in circumstances where the informer is the only material witness to the crime: see R. v. Davies (1982), 1982 CanLII 3809 (ON CA), 1 C.C.C. (3d) 299 (Ont. C.A.).
An exception should also be made where the informer has acted as an agent provocateur. For example, in R. v. Davies, supra, the informer not only introduced the police to the accused, but also played an instrumental role in the trafficking scheme itself. In those circumstances, his identity had to be revealed. This exception could be properly extended to cases where the accused intends to rely upon the defence of entrapment. However, in order to rely on this exception, the accused will, as a general rule, be required to establish some evidentiary basis for the defence.
A third exception may exist where the accused seeks to establish that the search was not undertaken on reasonable grounds and therefore contravened the provisions of s. 8 of the Charter. Even under these conditions, a court should strive to provide as much evidence as possible to the defence by means of editing the information on which the search warrant was based without disclosing the identity of the informer. That disclosure should only be made where it is absolutely essential: see R. v. Hunter, [(1987) 1987 CanLII 123 (ON CA), 34 C.C.C. (3d) 14].
[49] The issue of entrapment is determined apart from the issue of guilt or innocence. It is a policy issue. The only question is whether the entrapment constitutes an abuse of process requiring that the proceedings be stayed.
[50] As stated in R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667:
Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see [R. v.] Jewitt [1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128], at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure “that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society” (Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.
[Emphasis added.]
[51] In my view, these cases support the notion that innocence at stake includes defending a charge on the basis that the unfair treatment of the accused disentitles the Crown to carry on with the prosecution of the charge or charges. Although the accused is the moving party and bears the onus of proving that a stay ought to be granted, the application for the stay, is nevertheless, in the words of Caulfield J. in R. v. Barton, supra, an “answer to an allegation made by the Crown”. It therefore clearly falls within the innocence at stake exception.
(ii) Was innocence at stake in these proceedings?
[52] Disclosure of the otherwise privileged communications should be made only where absolutely necessary, and it will only be absolutely necessary if innocence is at stake. In other words the information must be such that its disclosure is necessary to establish the innocence of the accused.
[53] In the context of this case, this means that the information must be necessary to establish entitlement to a stay of proceedings. I am of the view that since the confidential communications relate to an important factor in that analysis, the information must be disclosed.
[54] The Campbell case makes it clear that where the police have operated outside the law whether they have done so on the basis of legal advice, or more significantly, in spite of legal advice, is an important consideration in determining whether a stay should be granted. To repeat, the court said this about the relevance of the legal opinions, at para. 73:
I do not agree, with respect, that non-disclosure of information clearly relevant to the good faith reliance issue can properly be disposed of by adverse inferences. The appellants were entitled to disclosure. The Court of Appeal said that it was prepared to assume the worst against the RCMP and on that basis felt able to use s. 686(1)(b)(iii) of the Code to uphold the decision of the trial judge. The difference between my approach and that of the Court of Appeal is that in my view, with respect, a Department of Justice opinion pronouncing the reverse sting to be unlawful would weigh differently in the balancing of community values than a Department of Justice opinion to the opposite effect. Police illegality of any description is a serious matter. Police illegality that is planned and approved within the RCMP hierarchy and implemented in defiance of legal advice would, if established, suggest a potential systemic problem concerning police accountability and control. The RCMP position, on the other hand, that the Department of Justice lent its support to an illegal venture may, depending on the circumstances, raise a different but still serious dimension to the abuse of process proceeding. In either case, it is difficult to assume “the worst” if neither alternative has been explored to determine what “the worst” is.
[Emphasis added.]
[55] Disclosure of the legal opinion does not depend on whether the Department of Justice has raised “good faith” as an issue. The defence is entitled to raise “bad faith” as an important factor for the trial judge in determining whether to grant a stay of proceedings.
(iii) Was there an evidentiary basis for disclosure?
[56] In R. v. Leipert, supra, in discussing informer privilege, McLachlin J. (as she then was), speaking for the court, reiterated that before disclosure will be ordered there must be an evidentiary basis to conclude that the disclosure is necessary. McLachlin J. said this, at para. 21:
In order to raise the “innocence at stake” exception to informer privilege, there must be a basis on the evidence for concluding that disclosure of the informer’s identity is necessary to demonstrate the innocence of the accused. [Citations omitted.] In Chiarantano, the possibility that the information provided by the informer regarding the arrival at a residence of drugs later found in the possession of the accused might conflict with the evidence of the accused was held not to raise a basis for disclosure pursuant to the “innocence at stake” exception. The court held that the usefulness of the information was speculative and that mere speculation that the information might assist the defence is insufficient. If speculation sufficed to remove the privilege, little if anything would be left of the protection which the privilege purports to accord.
[Emphasis added.]
In a following paragraph McLachlin J. set out the procedure to be followed where it is alleged that there is an evidentiary basis on which to make the order. She said, at para. 33:
Where an accused seeks disclosure of privileged informer information on the basis of the “innocence at stake” exception, the following procedure will apply. First, the accused must show some basis to conclude that without the disclosure sought his or her innocence is at stake. If such a basis is shown, the court may then review the information to determine whether, in fact, the information is necessary to prove the accused’s innocence. If the court concludes that disclosure is necessary, the court should only reveal as much information as is essential to allow proof of innocence. Before disclosing the information to the accused, the Crown should be given the option of staying the proceedings. If the Crown chooses to proceed, disclosure of the information essential to establish innocence may be provided to the accused.
[57] In my view, that is the procedure that should have been adopted in the case at bar.
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