



COURT OF APPEAL FOR ONTARIO

CITATION: R.
    v. Smithen-Davis, 2021 ONCA 731

DATE: 20211015

DOCKET: M52769 (C65661)

Fairburn A.C.J.O., Doherty and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Applicant/Moving Party)

and

Haldane Smithen-Davis

Appellant (Responding Party)

Michael Dunn and Samuel Greene, for the moving party

David Butt,
Amicus

Curiae

May Sengupta-Murray on behalf of Alan D. Gold, for
    Haldane Smithen-Davis

Heard and released orally: October 8, 2021

REASONS FOR DECISION

[1]

On a motion for directions, the Crown seeks an order:


i.

declaring that Jason Hamilton has waived his privilege over
    communications with his trial counsel regarding issues relevant to an application
    by Haldane Smithen-Davis to reopen his appeal;


ii.

directing Jason Hamilton to answer questions in cross-examination on
    issues on which he has waived his privilege; and


iii.

in the alternative, an order declaring Jason Hamiltons affidavit
    inadmissible on the reopening application.

The Background

[2]

The circumstances in which the motion arises fall within a narrow
    compass.

[3]

Jason Hamilton and Haldane Smithen-Davis were convicted of a home
    invasion in which another participant was killed. The evidence at their trial
    consisted principally of an Agreed Statement of Facts. Both were represented by
    experienced counsel. Both appealed. Both appeals were dismissed.

[4]

Subsequently, Mr. Smithen-Davis has applied to reopen his appeal. In
    support of his application, he relies on his own affidavit and that of Jason
    Hamilton. Reduced to their essence, these affidavits assert that Mr.
    Smithen-Davis did not participate in the offence of which both he and Jason
    Hamilton were convicted.

[5]

In their affidavits, both claim that, on the morning of trial, they
    signed off on an Agreed Statement of Fact drafted by their counsel. Each denies
    having reviewed the Agreed Statement of Fact in any meaningful way before they
    signed it.

[6]

In his affidavit, Jason Hamilton swears that:

i.

the Agreed Statement of Fact is not true;


ii.

he never told his trial counsel that he was present at, but did not
    participate in, the home invasion; and


iii.

he never told his trial counsel that Mr. Smithen-Davis was not present
    when the home invasion occurred.

[7]

Mr. Smithen-Davis has signed a waiver of solicitor-client privilege in
    connection with his communications with his trial counsel. Mr. Hamilton
    declined the Crowns request that he execute an equivalent waiver.
Amicus
was appointed to provide him with advice about responding to the Crowns
    request. He remains steadfast in his refusal.

The Motion

[8]

On this motion for directions, the Crown says that three reasons compel
    the conclusion that Jason Hamilton has waived solicitor-client privilege over
    communications with his trial counsel on the creation and accuracy of the Agreed
    Statement of Fact:

i.  by partially and selectively disclosing his
    communications with trial counsel in his affidavit;

ii. by relying on his partial recitation of his
    communications with trial counsel to explain his course of action, including
    the timing and content of his disclosures; and

iii. by
    refusing to provide a signed waiver of privilege thus insulating his evidence
    from effective challenge.

[9]

In these circumstances we are satisfied that fairness dictates that Mr.
    Hamilton has waived his solicitor-client privilege with respect to
    communications about:

i.  the accuracy of the Agreed Statement of Fact; and

ii. how the Agreed Statement of Fact came about.

See: VIII,
Wigmore
on
Evidence
, (McNaughton
    Rev), at pgs. 635-636; Sopinka, Lederman, & Bryant
The

Law of
    Evidence in Canada
(5th ed)
,
at para. 14.128.

The Disposition

[10]

An
    order will issue in the terms I have set out. The cross-examination shall be
    conducted before a judge or commissioner appointed for that purpose. Further
    proceedings shall be case managed by a judge of this Court.

Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


