Charges stayed because Crown comes into possession of privileged document

Today has been a busy day for the release of important cases.

This morning the Court of Appeal delivered a strong decision making clear the centrality of solicitor-client privilege. Specifically, a privileged document fell into the hands of the Crown and, in the specific circumstances, charges were stayed.

The Court writes:

THE QUESTIONS FOR THE COURT

(i) When the Crown has come into possession of a defence document that is protected by solicitor-client and litigation privilege, does the accused bear the burden of proving actual prejudice or will prejudice be presumed?

[52] The answer to this question is clearly found in the reasons for judgment of Binnie J. in Celanese Canada Inc. v. Murray Demolition Corp., [2006] 2 S.C.R. 189, at para. 3:

This Court's decision in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, makes it clear that prejudice will be presumed to flow from an opponent's access to relevant solicitor-client confidences. The major difference between the minority and majority in that case is that while the majority considered the presumption of risk of prejudice open to rebuttal in some circumstances (pp. 1260-61), the minority would not have permitted even the opportunity of rebuttal (p. 1266).

[53] Celanese involved the execution of an Anton Piller order that resulted in documents of the defendants, which were protected by solicitor-client privilege, falling into the hands of the lawyers for the plaintiffs. Binnie J. distinguished the case from the "moving solicitor" situation in MacDonald Estate. He discussed the kind of rebuttal evidence that would be expected from the party who obtained improper access to the privileged documents at para. 4.

The Anton Piller situation is somewhat different because the searching solicitors ought to have a record of exactly what was seized and what material, for which confidentiality is claimed, they subsequently looked at. Here again, rebuttal should be permitted, but the rebuttal evidence should require the party who obtained access to disclose to the court what has been learned and the measures taken to avoid the presumed resulting prejudice. While all solicitor confidences are not of the same order of importance, the party who obtained the wrongful access is not entitled to have the court assume in its favour that such disclosure carried no risk of prejudice to its opponent, and therefore does not justify the removal of the solicitors. For the reasons that follow, I conclude, contrary to the view taken by the Court of Appeal, with respect, that Celanese and its lawyers did have the onus to rebut the presumption of a risk of prejudice and they failed to do so. [Emphasis in original.]

[54] Celanese involved the removal of the solicitors for the plaintiffs from the case. That said, I see no difference in principle between the situations in MacDonald Estate and Celanese and the case at bar.

[55] Counsel for the Crown in this court sought to distinguish Celanese on the basis that it was a civil case in which the appellants were "attempting to utilize a civil onus to achieve a criminal result". I reject this submission. In my view, the above cases support the proposition that when the Crown comes into possession of a defence document that is protected by solicitor-client and litigation privilege, prejudice to the defence will be presumed. The presumption, however, is rebuttable.

(ii) Additionally, in such circumstances, must the charges be stayed or is a lesser remedy appropriate?

[56] It is obvious that there is a significant public interest in proceeding to a trial of the merits in cases such as this. A stay of proceedings is the remedy of last resort for the purpose of curing the prejudice visited on the appellants by the breach of their solicitor-client privilege.

[57] LeBel J., writing for the majority in R. v. Regan, [2002] 1 S.C.R. 297, at paras. 54, 56 articulated the test for a stay as follows:

Regardless of whether the abuse causes prejudice to the accused, because of an unfair trial, or to the integrity of the justice system, a stay of proceedings will only be appropriate when two criteria are met:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice.

The Court's judgment in Tobiass, at para. 91, emphasized that the first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective rather than a retroactive remedy. A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.

…

Any likelihood of abuse which will continue to manifest itself if the proceedings continue then must be considered in relation to possible remedies less drastic than a stay. Once it is determined that the abuse will continue to plague the judicial process, and that no remedy other than a stay can rectify the problem, a judge may exercise her or his discretion to grant a stay. [Citation omitted.]

[58] Common sense suggests that every breach of solicitor-client privilege does not attract the ultimate remedy. Some breaches of privilege are trivial and would not call for a stay of proceedings.

[59] In my view, the real issue for consideration in this case is whether the appeal judge erred in reversing the justice of the peace's decision to grant a stay of proceedings. I turn to that issue.

IS THIS AN APPROPRIATE CASE FOR A STAY?

[60] The standard of review to be applied to a trial judge's decision under s. 24(1) was described by Binnie J. (in dissent, but agreeing with the majority on this point) in Regan at para. 139:

I agree with my colleague LeBel J. that the standard of review of the trial judge's decision to grant a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms was authoritatively stated by Gonthier J. in Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375, as follows: "[A]n appellate court will be justified in intervening in a trial judge's exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice"; see also R. v. Carosella, [1997] 1 S.C.R. 80, at para. 48.

In Carosella, Sopinka J. said at para 50:

It is only after reaching the conclusion that the discretion has not been exercised in accordance with these principles that an appellate court is entitled to exercise a discretion of its own.

[61] The justice of the peace did a thorough review of the evidence and cited the appropriate authorities in respect of her consideration of whether a stay was the only available remedy.

[62] The appeal judge concluded that the justice of the peace was premature in ordering the stay. In her view, the trial should have proceeded and the issue of a stay deferred until the end of the trial. That may well be the preferred course in a different case. However, given the record before the justice of the peace and, in particular, the failure of the Crown to rebut the presumption of prejudice, I am not persuaded that she misdirected herself on the appropriate test or that her decision is so clearly wrong as to amount to an injustice.

[63] As I have already said, if the Crown had been able to lead evidence to rebut the presumption of prejudice, it would have done so. To let the trial proceed in these circumstances is, in effect, to permit the Crown to have a second chance to disprove prejudice when the record to date suggests it is incapable of doing so.

[64] In my view, the appeal judge erred in reversing the decision of the justice of the peace. The appeal judge said her decision would have been different had the report contained advice or recommendations of legal counsel. She failed to give any credit to the justice of the peace's finding that the report clearly sets out items that could well be used to the disadvantage and prejudice of the appellants. The appeal judge also gives little or no weight to the failure of the Crown to rebut the presumption of prejudice.

[65] The appeal judge said there was no evidence to support the justice of the peace's finding that the Crown failed to limit access to the report except to counsel for Vipond. The fact is that the Crown's witness list at trial contains the names of four employees from Vipond. There is no evidence as to what distribution, if any, was made of the contents of the report by Vipond. All we know is that counsel for Vipond retrieved the report from his client and returned it to counsel for Bruce Power.

[66] I would allow the appeal and restore the stay of the proceedings on the charges against the appellants.

[67] Finally, I return to the two questions raised by this appeal. In respect of the first question, I would conclude that when the Crown has come into possession of a defence document that is protected by solicitor-client and litigation privilege, prejudice will be presumed. The presumption is rebuttable by the Crown. In respect of the second question, I would conclude that in such circumstances, it does not necessarily follow that the charges should be stayed where a lesser remedy can solve the problem.