



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ward, 2016 ONCA 568

DATE: 20160715

DOCKET: M46586 (C55519)

Rouleau, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Ward

Appellant

Brian Gover and Pam Hrick, for the moving party, Donald
    H. Crawford, Q.C.

Timothy Breen, for the appellant/responding party,
    Ronald Ward

Howard Leibovich, for the respondent, Her Majesty the
    Queen

Heard: July 6, 2016

Pardu J.A.:

[1]

The moving party, formerly trial counsel for the
    appellant, moves for the return of a document inadvertently sent by his own
    counsel to the appellants appeal counsel in the context of an allegation that
    the moving party provided ineffective assistance at trial. The moving party submits
    that the document is privileged, and that its inadvertent disclosure did not
    constitute a waiver of solicitor-client privilege.

[2]

The appellant argues the moving party has not
    established that the document is protected by solicitor-client privilege. In
    the alternative, he submits that a balancing of the interests of the appellant
    and the moving party favours abrogation of solicitor-client privilege because the
    contents of the document could be relevant to the moving partys credibility,
    in the event that a claim of ineffective assistance of trial counsel is pursued.

[3]

The Crown agrees with the moving party that the
    document is privileged and should be returned.

Facts

[4]

The motion proceeded on the basis of an agreed
    statement of facts.

[5]

In September 2011, a jury convicted the
    appellant of second degree murder. The moving party was his trial counsel
    (trial counsel). In 2012, at the request of the appellants appeal counsel,
    trial counsel provided some of his file materials to appeal counsel.

[6]

On January 23, 2014, appeal counsel advised
    trial counsel that he had concerns about the conduct of the defence at trial
    and requested specified additional material in order to assess whether to raise
    a claim of ineffective assistance of counsel at trial as a ground of appeal.

[7]

Appeal counsel referred in his letter to paragraphs
    5 and 6 of this courts
Procedural Protocol Re Allegations of
    Incompetence of Trial Counsel in Criminal Cases (the Protocol),

which provide:

5.
Transfer of Trial File to
    Appeal Counsel
: Trial counsel shall (a) upon receipt of a written request
    by appeal counsel and a written direction of the appellant; or (b) upon receipt
    of any public document that contains an allegation of professional incompetence
    by trial counsel in his or her representation of the appellant, or an
    allegation that the conduct of trial counsel otherwise contributed to a
    miscarriage of justice, whichever event is earlier, forthwith transfer the
    entire file to appeal counsel. In the event that trial counsel wishes to raise
    any objection to so transferring the file, trial counsel may bring an
    application, as soon as possible, before the case management Judge.

6.
Access to the Trial File by
    Trial Counsel
:  If trial counsel wants to keep a copy of all, or any
    portion, of the trial file before transferring this file to appeal counsel,
    trial counsel may (at his or her own expense) make copies of whatever documents
    he or she wishes from the file. In addition, if trial counsel wants access to
    the file in connection with the appellant's case after it has been transferred
    to appeal counsel, appeal counsel must facilitate this access to the entirety
    of that file in a timely way, and must permit trial counsel to make copies (at
    his or her own expense) of whatever documents he or she wishes from the file.

[8]

On February 11, 2014, trial counsel responded,
    asking for particulars of the ineffective assistance allegation, referring to
    paragraphs 3 and 4 of the Protocol:

3.
Obligation to
    Investigate-Fair Opportunity to Respond
: Before any appeal counsel draws
    any final conclusion as to whether or not to make an allegation, on appeal,
    that trial counsel performed in a manner that amounted to professional
    incompetence, or otherwise contributed to a miscarriage of justice: (a) Appeal
    counsel should satisfy him or herself, by means of personal investigations or
    inquiries, that there is some factual foundation for this allegation apart from
    the instructions of the appellant. See:
R. v. Elliott
(1975), 28 C.C.C. (2d) 546 (Ont. C.A.) at p. 549. Appeal counsel
    should make these investigations or inquiries as soon as possible. (b) Appeal
    counsel should also provide trial counsel with informal notice of the general
    nature of the potential allegations concerning the professional performance of
    trial counsel, and should give trial counsel a reasonable opportunity to
    respond to those potential allegations. In this way, trial counsel will have a
    fair opportunity to respond to the potential allegations before they are made
    in any public forum.

4.
Notice of Allegations to
    Trial Counsel
: Whenever appeal counsel decides to publicly assert by means
    of filing with the Court some public document such as a Notice of Appeal or
    Supplementary Notice of Appeal or Appellant's Factum that contains an assertion
    that trial counsel performed in a manner that amounted to professional
    incompetence or otherwise contributed to a miscarriage of justice, appeal
    counsel must first provide trial counsel with a copy of that document, and any
    other subsequent document that contains any further details of that assertion.
    In this way trial counsel will be fully apprised, in a timely way, of all of
    the allegations being made with respect to his or her professional performance
    in his or her representation of the appellant at trial.

[9]

Trial counsel indicated that he would be unable
    to instruct his own counsel and determine his own course of action without
    knowing the allegations against him.

[10]

On February 12, 2014, appeal counsel responded
    that no allegation of ineffective assistance had yet been made, but that
    examination of the requested material would assist in determining whether to raise
    that issue.

[11]

On February 13, 2014, trial counsel again wrote
    to appeal counsel to ask for specifics of the concerns about the conduct of the
    defence, and indicated he would then be able to consider the request for
    further trial materials.

[12]

On March 14, 2014, appeal counsel sent trial
    counsel a direction signed by the appellant authorizing release of the trial
    file.

[13]

On April 9, 2014, trial counsel responded that
    he was organizing the trial file and again requested particulars of the
    ineffective assistance allegation.

[14]

On May 2, 2014, a case management judge of this
    court directed trial counsel to turn over his file to appeal counsel by May 15,
    2014. On May 5, 2014, appeal counsel forwarded to trial counsel a copy of this
    direction.

[15]

On May 6, 2014, trial counsel provided the
    remaining contents of his file to appeal counsel, noting that despite several
    requests, he still had no particulars of the grounds for the allegation of ineffective
    assistance.

[16]

On or around May 12, 2014, trial counsel
    retained Anil Kapoor and Lindsay Daviau of Kapoor Barristers to represent his
    interests in relation to the allegation of ineffective assistance and to assist
    in proceeding in accordance with this courts Protocol.

[17]

On May 14, 2014, Mr. Kapoor advised appeal
    counsel that he had been retained by trial counsel and asked that all further
    communications be sent to him.

[18]

On May 14, 2014, appeal counsel advised Mr.
    Kapoor by letter that he had reviewed the materials he had received from trial
    counsel. He asked that trial counsel produce all materials that would reflect trial
    counsels review of the brief and preparation for trial. He further asked that
    if such documentation did not exist, trial counsel provide a letter describing
    what work was done in preparation for trial and an explanation for the absence
    of any notes. This was the first occasion on which appeal counsel requested
    from trial counsel information beyond documentation that was created
    contemporaneous to the trial proceedings.

[19]

On May 22, 2014, Ms. Daviau sent trial counsel a
    copy of appeal counsels May 14, 2014 letter by fax.

[20]

On May 28, 2014, trial counsel responded with a
    letter to Mr. Kapoor. It is this letter (the Letter) that is now the subject
    of the solicitor-client privilege dispute.

[21]

On June 4, 2014, the Letter was inadvertently
    included in a package Ms. Daviau sent to appeal counsel that contained further
    materials from trial counsels file, provided pursuant to the Protocol.

[22]

On July 21, 2014, appeal counsel advised Mr.
    Kapoor for the first time of his specific concerns regarding trial counsels
    conduct, including that he did not object to the admission of two witnesses
    evidence concerning the appellants pre-offence conduct. Appeal counsel claimed
    that evidence strongly suggested the appellant was involved in drug trafficking.

[23]

On August 7, 2014, Ms. Daviau provided trial
    counsels responses to the questions appeal counsel raised in his July 21, 2014
    letter. Among other things, Ms. Daviau conveyed that trial counsel had
    made a tactical decision not to object to the evidence of the two witnesses
    concerning the appellants pre-offence conduct, and that there was no evidence
    before the jury that the appellant was trafficking in drugs or at all involved
    in the drug subculture.

[24]

On June 10, 2015, trial counsel swore an
    affidavit in order to respond to the allegation of ineffective assistance. In
    the affidavit, he swore, among other things, that there was no evidence before
    the jury that the appellant was trafficking in drugs or at all involved in the
    drug subculture.

[25]

On November 25, 2015, appeal counsel phoned Ms.
    Daviau as she was preparing trial counsel for his cross-examination on his
    affidavit the next day. Appeal counsel informed Ms. Daviau that he had come
    across the Letter in the materials Ms. Daviau provided on June 4, 2014. She
    immediately asserted solicitor-client privilege over the Letter.

[26]

On November 26, 2015, and pursuant to paragraph
    15 of the Protocol, appeal counsel cross-examined trial counsel on his
    affidavit sworn June 10, 2015. Trial counsel asserted privilege over the
    Letter. Appeal counsel did not rely upon the Letter in his cross-examination of
    trial counsel, as he had agreed not to do so until the privilege issue was
    resolved.

[27]

In a letter dated November 26, 2015, Mr. Kapoor
    stated that he and Ms. Daviau had each advised the prior day that the
    Letter was inadvertently disclosed, that the inadvertent disclosure did not
    constitute a waiver of solicitor-client privilege, and that trial counsel
    asserted his privilege over the Letter. Mr. Kapoor asked that all copies
    be returned to his office by November 30, 2015. Failing this, Mr. Kapoor advised
    that he would bring an application to a panel of this court, seeking an order
    that the Letter be returned.

[28]

On November 30, 2015, appeal counsel expressed
    his view that the Letter was not covered by solicitor-client privilege, as
    there was no expectation that the information contained therein would remain
    confidential. Alternatively, assuming the Letter was privileged and disclosed
    through inadvertence, he took the position that the determination of the
    admissibility of the Letter required an exercise of judicial discretion. Appeal
    counsel advised that he believed the best course of action would be to schedule
    an application before a panel of this court to determine the claim of
    privilege.

[29]

While appeal counsel had forwarded a copy of the
    Letter to the Crown lawyer responding to the appellants murder appeal, Crown
    counsel returned his copy to Ms. Daviau. There is no evidence that any other
    copy of the Letter was disclosed to anyone outside the solicitor-client
    relationship between trial counsel and his counsel.

Analysis

[30]

I conclude that the Letter is protected by
    solicitor-client privilege, that its inadvertent disclosure did not amount to trial
    counsels waiver of privilege, and that privilege should not be set aside in
    this case.

[31]

Communications between a lawyer and his or her client
    are privileged where they involve the giving or seeking of legal advice and where
    the parties intend them to be confidential:
Solosky v. The Queen
, [1980] 1 S.C.R. 821, at p. 837. The client, not the lawyer,
    holds the privilege and only he or she can waive it:
R. v. McClure
, 2001 SCC 14, [2001] 1
    S.C.R. 445, at para. 37.

[32]

Where solicitor-client privilege has not been
    waived, the court may also consider whether privilege should yield in order to
    allow an accused to make full answer and defence:
R. v. Brown
, 2002 SCC 32, [2002] 2 S.C.R. 185, at paras. 5, 28, 45. However, solicitor-client
    privilege is almost absolute, and may be set aside only in very rare
    circumstances:
McClure
, at paras. 5, 35. As
    the Supreme Court stated in
McClure
, at para.
    35: [S]olicitor-client privilege must be as close to absolute as possible to
    ensure public confidence and retain relevance. As such, it will only yield in
    certain clearly defined circumstances, and does not involve a balancing of
    interests on a case-by-case basis.

[33]

Here, the content of the letter and the context
    make it clear that trial counsel sent the letter to his own counsel in the
    course of seeking advice about how to respond to appeal counsels requests and
    how to comply with this courts Protocol. I infer from this same content and context
    that trial counsel intended the communication to be confidential. Trial counsel
    is no less entitled to the benefit of solicitor-client privilege because he was
    attempting to comply with the Protocol.

[34]

The appellant concedes that the disclosure to
    appeal counsel was inadvertent, and that trial counsel did not waive solicitor-client
    privilege. This was an appropriate concession.

[35]

Inadvertent disclosure does not necessarily mean
    that privilege has been waived. While waiver of solicitor-client privilege can
    be express or implied, whether privilege has been waived by inadvertent
    disclosure is a fact-specific inquiry, which may include consideration of the
    following factors:

·

The way in which the documents came to be released;

·

Whether there was a prompt attempt to retrieve the documents after
    the disclosure was discovered;

·

The timing of the discovery of the disclosure;

·

The timing of the application;

·

The number and nature of the third parties who have become aware of
    the documents;

·

Whether maintenance of the privilege will create an actual or
    perceived unfairness to the opposing party; and

·

The impact on the fairness, both actual or perceived, of the
    processes of the court.

See
Airst v. Airst
(1998), 37 O.R. (3d) 654 (C.J. (Gen. Div.)), at pp. 659-60; and
Chapelstone
    Developments Inc. v. Canada
, 2005 NBCA 96, 191 C.C.C.
    (3d) 152, at para. 55, leave to appeal to SCC refused, [2005] S.C.C.A. No. 38.

[36]

Having considered the above factors, I conclude
    that solicitor-client privilege was not waived in this case.

[37]

Nor should it be set aside. In
McClure
, the Supreme Court held that solicitor-client privilege may only be
    set aside very rarely, 
where core issues going to the guilt of the
    accused are involved and there is a genuine risk of a wrongful conviction:
    para. 47.
Under the innocence at stake test, the accused must
    first establish that the information sought from the solicitor-client
    communication is not available from any other source and that he or she is
    unable to raise a reasonable doubt as to guilt in any other way. If that
    threshold question is satisfied, the court will then consider whether there is
    an evidentiary basis upon which to conclude that a communication exists that could
    raise a reasonable doubt as to the accuseds guilt, and if so, whether the
    communication is likely to raise a reasonable doubt. See
McClure
, at paras. 46-51; and
Brown
, at
    paras. 4, 29.

[38]

There is no basis to abrogate the
    solicitor-client privilege here. Innocence is not at stake. The contents of the
    Letter are marginally relevant to the ineffective assistance of counsel claim,
    if pursued. The panel ultimately hearing the appeal will be able to come to its
    own opinion as to possible inferences a jury could have drawn from the evidence
    led at trial.

Disposition

[39]

I would accordingly grant the relief sought by
    the moving party  namely, an order:

·

Declaring that the Letter is protected by solicitor-client privilege;

·

Prohibiting the Letter or its contents from being used in any way in
    the appellants appeal; and

·

Requiring appeal counsel to return his copy of the Letter to the
    moving party immediately.

[40]

This is not a case for costs, given that the
    issue arose as a result of the moving partys own counsels error.

Released: (E.E.G.) July 15, 2016

G.
    Pardu J.A.

I
    agree Paul Rouleau J.A.

I
    agree C.W. Hourigan J.A.


