



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rutigliano, 2015 ONCA 452

DATE: 20150622

DOCKET: C57950 and C57951

Simmons, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Mike Rutigliano

Respondent

and

Barry Pierson

Respondent

Robert Hubbard and Benita Wassenaar, for the appellant

Scott Hutchison, Owen Wigderson and Matthew Gourlay, for
    Mike Rutigliano

Barry Pierson, acting in person

Heard: March 19, 2015

On appeal from the order of Justice S. Casey Hill of the
    Superior Court of Justice, dated October 24, 2013, granting a judicial stay of
    the proceedings, with reasons reported at 2013 ONSC 6675 and 2013 ONSC 6589,
    302 C.C.C. (3d) 228.

Pardu J.A.:

[1]

The Crown appeals from a judicial stay of proceedings granted at its
    own request in the midst of a pre-trial abuse of process motion. The Crown
    requested the stay after the motion judge ordered that records documenting
    consultations between Crown counsel and police officers be produced to him so
    that he could determine whether they should be disclosed to the parties.

[2]

On appeal, the Crown submits that solicitor-client privilege should
    only be breached if it is necessary, as a last resort, where factual innocence
    is at stake. It contends that innocence was not at stake in the pre-trial abuse
    of process motion and the motion judge erred in prematurely vitiating
    solicitor-client privilege.

[3]

The respondents, on the other hand, submit Crown-police privilege must
    yield in the interests of justice where a
prima facie
abuse of process
    has been made out but entitlement to a stay cannot be substantiated without the
    production of privileged materials. They also argue waiver of privilege and
    contend that the appeal amounts to an abuse of process.

[4]

Thus, this appeal raises four issues:

1) Is this appeal itself an
    abuse of process?

2) Was the trial judge correct
    when he ruled that the police had not waived the privilege attached to their
    communications?

3) As a matter of law, can
    solicitor-client privilege between Crown and police be abrogated to permit the
    defence to prove abuse of process?

4) Was the motion judges
    disclosure order premature or unnecessary?

[5]

For the reasons that follow, I would allow the appeal. The disclosure order
    made before the conclusion of the abuse of process motion was premature and
    unnecessary.

A.

Background

[6]

The respondent Rutigliano was a police sergeant working with the
    Ontario Provincial Police. For part of his career, he was responsible for the
    Courts Bureau at the Toronto detachment; as a result, he had regular contact
    with prosecutors and defence lawyers. An RCMP investigation led police to
    believe Rutigliano had ties to organized crime, and he eventually became the
    target of an investigation, following a suspicious bank transaction.

[7]

In February 2008, Rutigliano asked a bank employee whether she would
    change $15,000-20,000 worth of $20 bills into $100 bills for him. The bank
    refused to conduct the transaction, and bank investigators reported it to
    police. The OPP and the RCMP investigated and obtained the relevant corporate
    banking records. The banking records led the OPP to believe that Rutigliano,
    Pierson and Maurice Clark were involved in a commission scheme with respect to
    Bombardier Corporation.

The Wiretap Authorizations

[8]

Police commenced an investigation into Rutigliano, called Project Bond.
    Police sought and obtained four Part IV authorizations with respect to their
    investigation of the Bombardier allegations. The authorizations covered a
    period from October 2008 to April 2009. The offences named on the first
    application were secret commissions, money laundering and conspiracy. The first
    authorization provided that:

1) all oral communication were
    to be live monitored;

2) no communications were to be
    intercepted at a solicitors office or other place used by solicitors for
    client consultations;

3) where a monitor reasonably
    believed that a solicitor is a party to a communication, all reasonable steps
    were to be taken to prevent the interception or continued interception; and

4) where a communication with a
    solicitor was inadvertently intercepted, all access to the communication was to
    be denied, but the communication could be retained and subject to an unsealing
    order.

5) text based communications
    with solicitors could not be intercepted

Subsequent authorizations repeated these and similar
    terms.

[9]

Police had a wire-room devoted to the Project Bond investigation.
    Service providers simultaneously transmitted telephone calls and text messages
    to the wire room. Telephone calls could be listened to live and were recorded
    and saved for future listening. The technology used to collect the intercepted
    calls and text messages contained a classification scheme. Communications
    classified as privileged were supposed to be sealed, and access to those
    communications restricted. The technology used created reports of how often
    each communication was accessed and reviewed, and by whom.

[10]

Blackberry messages were collected and managed using a different
    process. They were not sent through the wire-room, but rather went directly to
    Det. Sgt. Gordon Gregus, the Project Bond file coordinator.

The Charges

[11]

A police investigation led to various charges against Pierson and
    Clark, who has since pleaded guilty, and four sets of charges against Rutigliano:

1) The Mavroudis charges: breach
    of trust, obstruct justice and conspiracy to obstruct justice charges were
    brought against Rutigliano. The charges related to an alleged scheme to provide
    Peter Mavroudis with false identification to allow him to live under an assumed
    name and escape outstanding fraud charges.

2) The Bombardier charges: Rutigliano
    was charged with fraud and giving secret commissions. Pierson was charged with
    accepting secret commissions. Both faced conspiracy to give/accept secret
    commissions and proceeds of crime charges. The charges related to an alleged
    scheme to pay secret commissions to Pierson and Clark in return for them
    directing millions of dollars of aircraft repair work to ATS.

3) The DAngelo charges:
    obstruct justice, breach of trust, and conspiracy to obstruct justice charges were
    brought against Rutigliano. He was alleged to have helped a friend, Frank
    DAngelo, defend a charge of sexual assault.

4) Weapons charges: Rutigliano was
    charged with possessing prohibited weapons.

[12]

The respondent Pierson was charged only in relation to the
    Bombardier scheme. He was one of the two senior employees of Bombardier Inc.
    alleged to be involved in the scheme. The other employee was Clark. The Crown
    alleged that Rutigliano, Pierson and Clark formed a company to conduct mobile
    aircraft repair work, and then developed a scheme whereby Pierson and Clark
    would obtain secret commissions in return for directing work to their company.

[13]

It was anticipated that the indictment would be severed into four
    separate indictments after pre-trial motions were completed. The pre-trial
    motions included a motion to stay the proceedings for abuse of process. A
    significant part of the abuse of process motion related to the implementation
    of wiretap authorizations.

Failure to comply with terms of authorizations

[14]

According to the court orders authorizing interceptions, if a
    solicitor was a party to a conversation, all reasonable steps had to be taken
    to stop the interception or continued interception. If a communication with a
    solicitor was inadvertently intercepted, the record of the communication was to
    be retained, but all access to it was denied, until a court could decide
    whether access would be permitted. Text-based communications did not have to be
    monitored but the order nonetheless forbade interception of text-based communications
    with lawyers.

[15]

During the course of the abuse of process motion, the Crown admitted
    problems with the implementation of the wiretaps. As the officer in charge of
    the courts bureau for the OPP in Toronto, Rutigliano had frequent contact with
    lawyers for the Crown and defence.

[16]

Contrary to the wiretap authorization, his telephone communications
    were not live monitored but were automatically recorded and retained. The
    computer system was not set up in a way that would have permitted live
    monitoring. Summaries of intercepted solicitor calls were provided to the
    investigative team through daily call logs. Investigators examined
    communications with solicitors after they had been classified as privileged
    without obtaining a court order for access. Hundreds of presumptively
    privileged communications were intercepted and recorded. Summaries of
    intercepts with solicitors that should not have been intercepted were recorded,
    stored and disseminated to investigators. Summaries of the content of solicitor
    calls were relied on in an application to unseal some of the information
    gleaned from the first wiretap. In one case, although a live monitor warned
    that a communication with a solicitor was about to be intercepted through a
    room probe, an investigator listened to the entire call, knowing it was
    presumptively privileged.

[17]

Investigators looked at printed copies of all intercepted Blackberry
    messages. When a communication was with a lawyer, Detective Sergeant Gregus,
    the file co-ordinator for the investigation, would read the communication and
    decide whether it involved a client seeking advice from a lawyer. If so, he put
    it aside. He did not mark any of the communications as privileged. He testified
    that he adopted this practice as a result of consultations with Crown Attorneys.

[18]

In early 2009, the Commissioner of the OPP waived any privilege
    attached to any communications between Rutigliano and any Crown Attorney for
    the period January 1, 2004 to February 11, 2009. Investigators took this as
    authority to listen to and record all such communications and to access any such
    previous communications without obtaining court permission, although the
    wiretap authorizations forbade this practice. The waiver would have supported
    an order to unseal those communications, but did not authorize their
    interception or examination. Again, this conduct was said to be supported by
    legal advice.

[19]

Ultimately, the Crown conceded that at least 17 of the intercepted
    private communications between Rutigliano and counsel were in fact privileged. Twelve
    were Blackberry messages, four were telephone calls and one was a facsimile.

[20]

Faced with these difficulties, the Crown abandoned reliance on the
    intercepted communications and withdrew the Mavroudis and the DAngelo charges.

[21]

The defence position was that the balance of the charges should be
    stayed because of the serious nature of the misconduct related to the wiretaps.
    It was in this context that the motion judge ordered that communications
    between the investigators and Crown counsel be produced for his inspection despite
    the Crowns assertion of solicitor-client privilege over those materials.

B.

Motion judges decision

[22]

In his ruling on solicitor-client privilege, the motion judge explained
    the context in which the disclosure issue arose:

[149] The parties are in agreement that counsel for the
    Attorney General of Ontario provided legal advice to Project Bond investigators
    respecting the Blackberry messages and the interpretation as to how the
    Commissioner Fantino waiver(s) should be implemented. The advice may have been
    legally/constitutionally correct or not. Whatever the advice, it may or may not
    have been relied upon in whole or in part. Police actions respecting these two
    matters have been shown to be
prima facie
unlawful/unconstitutional
    and have been acknowledged as such by the Crown.



[152] Counsel for the Attorney General of Ontario prosecuting
    the applicants have declared that the Crown is foregoing any reliance on legal
    advice provided by other counsel for the Attorney General of Ontario which
    might be characterized as good faith explanation for unconstitutional/illegal
    actions by the police. However, Crown counsel are unprepared to acknowledge bad
    faith on the part of the police and/or its own lawyers respecting these two
    issues.



[163] Here, there has been a
prima facie
demonstration
    of the alleged abuse in terms of multiple acts of police misconduct relating to
    the Part VI orders. Not only has the Crown fairly conceded many of these acts,
    and rightly described them as serious and of pronounced seriousness but by
    withdrawing reliance on the wiretap evidence and in turn various charges before
    the court, the prosecution has effectively acknowledged that the state
    misconduct has been such that it could not reasonably argue that admission of
    the evidence would not bring the administration of justice into disrepute.

[23]

The first issue for the motion judge to decide with respect to
    solicitor-client privilege was waiver. He concluded that there was no waiver of
    privilege by the OPP over the materials in question.

[24]

In considering whether solicitor-client privilege could be abrogated
    in the context of an abuse of process motion, he undertook an extensive review
    of the case law, including
R v. McClure
, [2001] 1 S.C.R. 445, 151
    C.C.C. (3d) 321, and
R. v. Brown
, [2002] 2 S.C.R. 185, 162 C.C.C. (3d)
    257.

[25]

He set out the
McClure
test for disclosure as follows:

[111
] The
McClure
test
    comprises a threshold question and, depending on the answer, a two-stage
    innocence-at-stake test. Under this regime, the burden of proof on a balance of
    probabilities rests throughout upon the accused:
Brown
, at para. 56.

[112
] To satisfy the threshold test,
    steeped in a necessity determination, an accused must establish that:

(1) the information sought from
    the solicitor-client communication is not available from any other source and

(2) that he or she is otherwise
    unable to raise a reasonable doubt.

[113
] Where the threshold is satisfied,
    the court should proceed to the innocence at stake test:



Stage #1 -

with such information
          concerning the alleged communication as has come to the accused's attention,
          the accused seeking disclosure/production of a written or oral
          solicitor-client communication must demonstrate an evidentiary basis to
          conclude that a communication exists that could raise a reasonable doubt as
          to his or her guilt



Stage #2 -

if such an evidentiary basis exists, the court shall examine
          the communication to determine whether, in fact, it is likely to raise a
          reasonable doubt as to guilt.



[26]

Ultimately, the motion judge applied a modified version of the
McClure
test for disclosure in determining whether the relevant Crown-police communications
    should be disclosed to him in the abuse of process context.

[27]

He found that the relevant communications could be essential in terms
    of materially advancing proof of the state of mind component which is a critical
     aspect of abuse of process.

[28]

He found that it was necessary, without awaiting the end of the
    motion, to review the relevant documents:

... [R]elevant information relating to the state of mind of
    state actors who have misconducted themselves is essential to proof of the
    overall alleged abuse of process and is unavailable from any other source. We
    have moved beyond the helpful to necessary. The necessity is apparent now
    without awaiting the end of the motion.

[29]

He concluded that, on balance, the applicants had established that the
    relevant solicitor-client communications could, in a material way, establish an
    abuse of process. Accordingly, it was necessary for him to review the
    communications to determine whether, in fact, the communications were likely
    to significantly advance the record as to the intention of the relevant state
    actors. If the communications [were] likely to substantiate proof of the
    existence of abuse of process, then disclosure to the parties would be
    warranted.

[30]

Rather than complying with the order, the Crown requested a judicial
    stay for the following reasons:

While the Crown cannot speak to the content, at this time, of
    any Crown files, as none have been reviewed, the Crown has already reviewed and
    redacted several officer notes that record the legal advice from the Crowns
    regarding the execution issues pertaining to the Part 6 orders that have been
    identified in the court's ruling.

In the Crown's respectful view the Court, having already
    determined that those files could, in a material way, establish an abuse of
    process, it is inevitable that upon this court's review of those notes that
    record the content of the legal advice from the Crowns, that this court would
    conclude that those notes must be disclosed even if some other included
    irrelevant material was redacted.

Accordingly, rather than spending considerable prosecutorial
    resources finding, reviewing and producing all of the privileged information
    for the second stage review and then waiting until the precise moment that the court
    makes an order disclosing that material to the defence, and then rising at that
    time to request that the court impose a judicial stay, the Crown respectfully
    makes the request now that a judicial stay be entered.

[I]n doing so, the Crown is acting solely to prevent
    irreparable harm being caused to a legally recognized interest worthy of protection,
    that is, the solicitor/client privilege that existed and exists between the OPP
    investigators and the Crown counsel who provided them advice during the
    investigation.

[31]

The motion judge granted the Crowns request and terminated the
    proceeding by entering a judicial stay.

C.

ANALYSIS

Issue #1: Is this appeal itself an abuse of process?

[32]

The respondents submit that the Crowns appeal should be dismissed as
    an abuse of the courts process. In their submission, the Crown made a
    pragmatic decision to ask for a judicial stay of the proceedings to avoid
    having the court rule on whether disclosure to the parties should be ordered.
    They say refusing to comply with the motion judges order and short-circuiting
    the disclosure process by way of an interlocutory appeal amounts to an abuse of
    process.

[33]

In making this submission, they primarily rely on
United States of
    America v. Fafalios
, 2012 ONCA 365, 110 O.R. (3d) 641. In
Fafalios
,
    an extradition judge made a disclosure order. The Crown partially complied with
    that order. The extradition judge then made a second order, requiring, among
    other things, the disclosure of communications between police and Crown
    counsel. The Crown objected on the ground of relevance, but did not assert
    solicitor-client privilege. The Crown indicated it was not prepared to make
    further disclosure and invited the court to either grant a discharge or stay
    proceedings. The court granted a discharge and the Crown appealed. On appeal,
    the Crown argued for the first time that compliance with the disclosure order
    would infringe solicitor-client privilege and harm international relations.

[34]

This court recognized in
Fafalios
that a prosecutor
    confronted with an interlocutory order to which it objects has two options. It can
    either continue with the proceedings and appeal after the case is terminated,
    or, where there is no reasonable alternative, bring the proceedings to a halt
    and appeal the interlocutory ruling:
Fafalios
, at para. 42. There may
    be no reasonable alternative other than to pursue a functional appeal of an
    interlocutory order where: (1) the effect of the interlocutory ruling is to
    leave the Crown without a case, or (2) compliance with the interlocutory order
    raises a reasonable prospect of harm to an interest the court deems worthy of
    protection:
Fafalios
, at para. 44.

[35]

In the circumstances, this court concluded that the Crowns appeal
    amounted to an abuse of process. The Crown had failed to object to the
    disclosure orders before the extradition judge on the basis of privilege or
    harm to international relations. Having failed to do so, it was an abuse of
    process to raise those issues on appeal.

[36]

This case is different. The Crown asserted solicitor-client privilege
    before the motion judge. The focus of his ruling was solicitor-client
    privilege. While the motion judge ordered that the relevant materials be
    disclosed to himself and not yet to the parties, the Crown acknowledged that it
    was inevitable that the court would order disclosure of the officers notes
    recording the legal advice from the Crowns. Rather than spending time finding,
    reviewing and producing all privileged information, it requested a judicial
    stay to prevent the disclosure of privileged solicitor-client communications. Counsel
    for the respondents agreed that the court make the requested order.

[37]

I see no abuse of process in the manner in which the Crown terminated
    the proceedings before the motion judge or brought this appeal. I accept that,
    in the circumstances of this case, there was a reasonable prospect that
    continuing with the proceeding would have resulted in an abrogation of
    solicitor-client privilege, which is an interest worthy of legal protection. The
    fact that the Crown might have instead sought leave to appeal directly to the
    Supreme Court of Canada from the interlocutory ruling does not render its
    actions here an abuse of process.

Issue #2: Was the motion judge correct when he ruled that the
    police had not waived the privilege attached to their communications?

[38]

The respondents argued that when individual officers testified that
    advice from Crown counsel played a part in investigative decisions they made
    about the wiretaps, this amounted to waiver of solicitor client privilege as
    between the OPP and the Crown. There is no dispute that legal advice from Crown
    counsel to police officers is protected by solicitor-client privilege: see
R.
    v. Campbell
[1999] 1 S.C.R. 565, 133 C.C.C. (3d) 257, at para. 49. The question
    before the motion judge  and on this appeal  was not whether the relevant
    communications were privileged but whether privilege was waived.

[39]

The motion judge held that the individual officers who testified did
    not have the authority to waive solicitor-client privilege on behalf of the
    OPP:

[134] In my view, in the circumstances of the present case,
    individual police witnesses did not have authority to waive solicitor-client
    privilege respecting legal advice sought and received in the course of their
    duties as Project Bond investigators. In this regard,
Campbell
and the
    authorities which have followed it are to be preferred in identifying the head
    of the police force, or his or her designate for the purpose, as the
    responsible party to waive privilege.

[135] A Chief of Police or Commissioner will have a force-wide
    perspective of the instances where solicitor-client privilege ought to be
    waived with a view to relevant institutional factors, for example consistency
    of approach, avoidance of civil suits, etc., within the knowledge and
    policy-making purview of the forces management.

[40]

The motion judge further held that, quite apart from the
    authority-to-waive issue, officers responses to questions in cross-examination
    about why they undertook the course of action they did was not sufficient to
    trigger a waiver of solicitor-client privilege. As witnesses, the officers were
    bound to answer the questions put to them and this could not amount to waiver
    of solicitor-client privilege.

[41]

The respondents have not pointed to any error warranting interfering
    with the motion judges finding that there was no waiver of solicitor-client
    privilege in the circumstances of this case. It was open to the motion judge to
    find that the individual officers had no authority to waive privilege and, in
    any event, there was no implicit waiver by the officers.

Issue #3: As a matter of law, can solicitor-client privilege
    between the Crown and police be abrogated to permit the defence to prove abuse
    of process?

[42]

This appeal raises an issue explicitly left unanswered in
R. v.
    Campbell
[1999] 1 S.C.R. 565, 133 C.C.C. (3d) 257, at paras. 65 and 66:

[65] 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: see
R.
    v. Stinchcombe
, [1991] 3 S.C.R. 326, at p. 340;
R. v. Dunbar
(1982), 68 C.C.C. (2d) 13 (Ont. C.A.), at p. 43;
R. v. Gray
(1992), 74
    C.C.C. (3d) 267 (B.C.S.C.), at pp. 273-74. 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 accuseds right to make full answer and defence is not
    engaged. In this connection, the Crown relies upon
R. v. Seaboyer
,
    [1991] 2 S.C.R. 577, per McLachlin J., at p. 607, and
A. (L.L.) v. B. (A.)
,
    [1995] 4 S.C.R. 536, per LHeureux-Dubé J., at p. 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.

[66] 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.

[43]

The Crowns position on this appeal is that the question left open in
Campbell
has been answered, at least implicitly, by
McClure
and
Brown
.
    Relying on the two cases, the Crown submits that solicitor-client privilege is
    nearly absolute and should be breached only when factual innocence is at stake.
    As it reads the two cases, the innocence at stake exception described by the
    Supreme Court of Canada cannot be used to abrogate solicitor-client privilege in
    support of an abuse of process application.

[44]

The respondents take the position that
McClure
and
Brown
do not foreclose abrogation of solicitor-client privilege in the abuse of
    process context. They distinguish
McClure
and
Brown
on the
    basis that, in those cases, private individuals asserted the privilege. In
McClure,
the accused charged with sexual offences sought access to the civil
    litigation file of the lawyer engaged by the complainant to sue him. In
Brown,
an accused charged with murder sought production of a lawyers files allegedly
    recording a third partys confession to the murder. The respondents also point
    to
R. v. Liepert
, [1997] 1 S.C.R. 281, 112 C.C.C. (3d) 385, distinguishing
    it on the basis that it involved informer privilege and disclosure of the
    informers identity would have put the persons safety at risk.

[45]

Here, in contrast, the respondents point out that the parties to the
    communications hold public office and carry out public duties. The first
    question on the abuse of process application is whether the state has engaged
    in conduct that is offensive to societal notions of fair play and decency and
    whether proceeding with the trial in the fact of that conduct would be harmful
    to the integrity of the justice system:
R. v. Babos
2014 SCC 16, [2014]
    1 S.C.R. 309, at para. 35. The respondents question why should the state be
    entitled to shelter its own unconstitutional conduct from scrutiny behind a
    claim of privilege? The facts in this case go beyond bald allegations of state
    misconduct. The Crown has conceded that police did not comply with the court-ordered
    restrictions on their interceptions of private communications after they got advice
    from Crown attorneys.

[46]

The respondents also rely on an article by Professor Adam Dodek, who
    argues that the purpose of enshrining solicitor-client privilege as a powerful
    constitutional right is to protect the dignity, autonomy and privacy of
    individuals, and that organizations such as governments and corporations have
    no need of this protection: Adam M. Dodek, Reconceiving Solicitor-Client
    Privilege (2010) 35 Queens L.J. 493, at p. 513, that the privilege hampers
    the search for truth, transparency and accountability.

[47]

Various appellate and trial courts have come to opposite conclusions
    on whether full answer and defence considerations may require disclosure of privileged
    communications in an abuse of process proceedings and, if so, in what
    circumstances. However, this case is not an appropriate one in which to answer
    that question. For the reasons that follow, the motion judges disclosure order
    was premature and unnecessary. Determination of this question should await a
    full factual record.

Issue #4: Was the motion judges disclosure order premature or
    unnecessary?

[48]

The Crown submits that even if it were possible to extend the innocence
    at stake exception to solicitor-client privilege to claims of abuse of
    process, the motion judge erred in ordering production of the material before
    the end of the abuse of process motion. The Crown submits that it was both
    premature and unnecessary for the motion judge to breach the privilege when he
    did. At a minimum, he should have heard all of the evidence on the motion
    before deciding the issue, says the Crown.

[49]

The respondents make two points in response. First, the prematurity issue
    was not raised before the motion judge. Second, in the particular circumstances
    of this case, it would be profoundly uneconomical to wait to decide the
    solicitor-client privilege issue until the end of the case.

[50]

I agree with the Crowns position that, in the circumstances, the
    disclosure order was premature. Even if it is open to a court to order
    disclosure of privileged communications between the Crown and police in the
    abuse of process context, the Supreme Court has made it clear that
    solicitor-client privilege should only be abrogated as a last resort.

[51]

In
McClure
, the court stated that the occasions when
    solicitor client privilege yields are rare and the test to be met is a
    stringent one: para. 5; see also
Brown
, at para. 3. In
Brown
,
    the court reiterated that the innocence at stake exception is intended to be a
    rare exception and used as a last resort: para. 3. Piercing solicitor-client
    privilege should be treated as an extraordinary measure:
Brown
, at
    para. 27.

[52]

In
Brown
, the motion judge struggled with the question of
    whether the accused could raise a reasonable doubt as to his guilt without the
    privileged material. He considered leaving the matter until the Crowns case
    was completed but was concerned about maintaining the orderly conduct of the
    trial, and avoiding undue delay and disruption to the jurors:
Brown
,
    at para. 46.

[53]

The Supreme Court concluded that the motion judge had acted
    prematurely. It was not clear at the time that the privileged material was not
    available from another source. Nor was it clear that the privileged information
    was necessary for the accused to raise a reasonable doubt:
Brown
, at para.
    5.

[54]

Major J. discussed the timing of
McClure
applications at some
    length. He stressed that, as a general rule, they should be delayed until the
    end of the Crowns case, which he acknowledged may interfere with the orderly
    conduct of cases and create delay or disruption to jurors:
Brown
, at para.
    55. He explained the rationale for delaying
McClure
applications as
    follows:

[52] In the usual case, it would be preferable to delay the
McClure
application until the end of the Crowns case. This will better permit the
    trial judge to assess the strength of the Crowns case against the accused, and
    to determine whether the accuseds innocence is, in fact, at stake. If the
    Crown has failed to prove its case beyond a reasonable doubt, then there will
    be no need to allow the
McClure
application and invade a third partys
    solicitor-client privilege. This will prevent the privilege from being
    unnecessarily violated.



[54] If the trial judge believes that the Crown has made a
    strong case in chief, but that the defence may be able to raise a reasonable
    doubt through its evidence, she may again decide to deny or postpone the
McClure
application. However, there is nothing to prevent the defence from renewing its
McClure
application during its side of the case in the belief that it
    will not otherwise be able to raise a reasonable doubt. Having heard a greater
    portion of the evidence, the trial judge will be better able to assess whether
    the accuseds innocence is at stake. In any event, the
McClure
application is not a one shot affair. Although defence counsel should not
    abuse the process, they may bring
McClure
applications at different
    times in the trial if they believe that the accuseds innocence is at stake. I
    stress again that the trial judge should only allow the
McClure
application
    if and when she is of the view that the accused will be unable to raise a
    reasonable doubt without the evidence protected by the privilege. If there is
    or may be some evidence upon which a reasonable jury, properly instructed,
    could acquit, the
McClure
application should be denied or postponed.

[55]

Thus, a judge should allow a
McClure
application only
if
and
when
the judge is of the view that the accused will be unable to
    raise a reasonable doubt without the evidence protected by privilege.

[56]

Translating those principles into the present context, if satisfied
    that this was potentially one of those rare cases where infringement of
    solicitor-client privilege as between Crown counsel and police was legally
    available, the motion judge should not have entertained infringement of the
    privilege unless he was satisfied that there was no basis upon which to grant a
    stay of proceedings absent the privileged information. If a stay was
    appropriate without recourse to the privileged information, he could have
    granted the stay without infringing solicitor-client privilege. If he was
    uncertain at the end of the abuse of process motion whether a stay could be
    granted without the privileged information he should have waited until the end
    of the Crowns case. If there was no evidentiary basis for conviction, the
    accused could be acquitted without infringing privilege.

[57]

As highlighted above, the motion judge concluded that assertion of the
    privilege deprived the respondents of information relating to the state of
    mind of those said to be responsible for significant aspects of what is being
    advanced as an abuse of process arising from cumulative state misconduct. He
    concluded as follows:

[R]elevant information relating to the state of mind of state
    actors who have misconducted themselves is essential to proof of the overall
    alleged abuse of process and is unavailable from any other source. We have
    moved beyond helpful to necessary. The necessity is apparent now without
    awaiting the end of the motion.

[58]

In my view, he wrongly equated necessity with relevance. There is no
    doubt that assertion of solicitor-client privilege can deprive a decision-maker
    of relevant information. The motion judge did not analyze whether the basis for
    a stay had or could otherwise have been established in any event. The respondents
    submit that a stay was inevitable, given the serious misconduct which had been
    demonstrated.

[59]

In my view, the motion judge erred in ordering production of
    privileged materials prematurely and absent a finding of necessity, that is to
    say, a finding that there was no other way of establishing an abuse of process
    and obtaining a stay. He should have waited until at least the end of the abuse
    of process motion, and applied the
R v. Babos
test for abuse of
    process, at para. 32, without the privileged information:

1)

There must be
    prejudice to the accuseds right to a fair trial or the integrity of the
    justice system that will be manifested, perpetuated or aggravated through the
    conduct of the trial, or by its outcome (
Regan
, at para. 54);

2)

There must be no
    alternative remedy capable of redressing the prejudice; and

3)

Where there is still
    uncertainty over whether a stay is warranted after steps 1) and 2), the court
    is required to balance the interests in favour of granting a stay, such as
    denouncing misconduct and preserving the integrity of the justice system,
    against the interest that society has in having a final decision on the
    merits (
ibid
, at para. 57).

[60]

This will require an assessment of whether, for example, exclusion of
    the wiretap evidence is capable of redressing the prejudice, and perhaps
    balancing the interests in favour of granting or refusing a stay.

D.

disposition of appeal

[61]

The respondents submit that it is not appropriate to remit the matter
    to the trial court as there is no realistic possibility that there will be a
    different result if the matter is remitted. In their submission, a stay of
    proceedings is inevitable.

[62]

This appeal was brought before the abuse of process motion was
    finished. Without a full record or reasons on the abuse of process motion, this
    court is not in a position to determine whether or not a stay for abuse of
    process is inevitable.

[63]

Accordingly, the appeal is allowed, the stay is set aside, and the
    matter remitted to the trial court.

Released: M.T. June 22, 2015

G. Pardu J.A.

I agree Janet
    Simmons J.A.

I agree M. Tulloch
    J.A.


