R v Alzrer, 2021 ABQB 203

Court of Queen’s Bench of Alberta Citation: R v Alzrer, 2021 ABQB 203 Date: 20210317 Docket: 190071845S1 Registry: Edmonton Between: Her Majesty the Queen Appellant - and - Housam Alzrer Respondent Corrected judgment: A corrigendum was issued on March 18, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice J.S. Little _______________________________________________________ Appeal from the Acquittal by The Honourable Judge Wheatley, August 24, 2020 I.

Introduction [ 1 ] The Crown appeals the acquittal of Mr. Alzrer. [ 2 ] The Crown in its Notice of Appeal referred to three grounds of appeal but proceeded only on the first: the trial judge erred in law by concluding that a statement the accused made to a Mr. Istabouly was protected by solicitor/client privilege and therefore inadmissible. That allegation is of an error of law reviewable on a standard of correctness.

[ 3 ] That ground includes that the decision made, after a voir dire argued for other reasons, compromised trial fairness, an allegation also reviewable on a standard of correctness: R v Schmalz , 2015 ABCA 4 . II. Facts [ 4 ] Mr. Alzrer was charged with sexual assault, sexual touching, and unlawful confinement. The charges arose out of a 14 year old complainant’s allegations that after delivering a pizza to him, Mr. Alzrer invited him into his car where he kissed him on the mouth. The complainant tried to get out of the car, but his door was locked.

He tried again and it opened. [ 5 ] At trial, the Crown sought to introduce a statement the accused made to a Mr. Istabouly, who was educated as an engineer but a barber by trade. He was also president of the Syrian Canadian Friendship Club (the Club). In that capacity, he assisted Syrian newcomers with such things as filling out forms, translating, and assisting with interactions with the police. It was through this latter role that he knew the respondent. He had helped him with translation, parenting matters, and a couple of accidents.

He had also “bailed him out and hired a lawyer for him” with respect to this charge. [ 6 ] The Crown sought to introduce the statement as a statement against interest. The trial judge cautioned the Crown to keep the questioning narrow because defence counsel had pointed out that the statement may be prejudicial to the accused in another proceeding. After a few questions, defence counsel raised the issue that Mr. Istabouly may be a person in authority. The Crown acknowledged that while Mr. Istabouly appeared to be a person in a position of trust to Mr.

Alzrer, he was not a person in a position of authority for the purpose of determining the admissibility of a statement against interest. [ 7 ] The trial judge then entered into a voir dire . Its parameters were not defined except that its purpose was to determine whether the statements made were admissible in the trial. [ 8 ] During the voir dire , Mr. Istabouly testified as to the mandate of the Club and his role in it.

Its mandate was to help newcomers, including with police matters: explaining the rules or the law, letting the police know how newcomers think, and solving problems such as a fight between a wife and husband (Feb 11, p 7). In the case at hand, he had helped Mr. Alzrer find a lawyer who spoke his language. He acknowledged that he was not employed by the police. Mr. Alzrer had come to see him not at his barber shop but at a shop where he was repairing cars. He explained that it was expected that what people told him when they sought his assistance would be kept confidential – he had their trust.

Asked by defence counsel if he could pass on information without Mr. Alzrer’s consent, he responded: No, it was for the government, it was for the police, statement for the police. It’s not for the people, it’s for the law. (Feb 11, p. 18). [ 9 ] At the conclusion of the voir dire , after argument about whether Mr. Istabouly was a person of authority, the trial judge ruled: But even though he tells the police something my duty is whether or not that statement is admissible in this court of law. I think that because Mr.

Istabouly has arranged for the lawyer to speak to bail and has arranged for the meeting with the lawyer in the upcoming few days and has made a promise not to pass any information on without the accused’s person’s consent; that in some way the statement is protected by an extension of solicitor-client privilege, given that Mr. Istabouly is [in] a way an agent of the lawyer, in terms of hiring him to speak to bail and setting up an appointment to, in fact, interview the accused person and represent him in criminal proceedings which have been commenced. As such, any statement which Mr. Alzrer has made to Mr.

Istabouly is not admissible in this court. (Feb 11, p 23, parentheses added). II. Argument [ 10 ] The Crown argues that the terms of the voir dire were “muddled from the outset” insofar as there was some confusion regarding the defence objection to the statement. Defence counsel originally was concerned about it being considered character evidence which may prejudice the accused in another proceeding. As that area was canvassed briefly, the defence argument evolved into one that Mr.

Istabouly was in a position of trust, which the trial judge interpreted as meaning in a position of authority. [ 11 ] The respondent argues that the terms of the voir dire , as determined by the trial judge, were to determine the admissibility of the statement generally - not restricted to any particular grounds. Mr. Kousonsavath cites R v Littlechild , 1979 ABCA 321 as authority for this proposition. A. Solicitor-Client Privilege

[12] If authority for the sanctity of the solicitor-client privilege is required, it can be found in the appellant’s factum: The concept of privileged communications between a solicitor and his client has long been recognized as fundamental to the dueadministration of justice.

As Jackett, C.J. aptly stated in Re Director of Investigation and Research and Shell Canada Ltd at pp 78-79:the protection, civil and criminal, afforded to the individual by our law is dependent upon his having the aid and guidance of thoseskilled in the law untrammeled by any apprehension that the full and frank disclosure by him of all his facts and thoughts to his legaladvisor might somehow become available to third persons so as to be used against him.

Solosky v The Queen (SCC),[1980] 1 SCR 821 at p 834. [13] In Littlechild, a trial judge ruled inadmissible any evidence given (or in that case proposed to be given) by an applicant forLegal Aid to a Legal Aid Officer. The decision was upheld on appeal. There, Laycraft JA applied a four part test from Wigmore: i. The communication must originate in a confidence that it will not be disclosed. Here, the evidence of Mr.Istabouly is to that effect. ii. The element of confidentiality must be essential to the full and satisfactory maintenance of the relationshipbetween the parties. Again, according to Mr.

Istabouly, it was required that he maintain confidence so as to retain the trust of peoplewho came to him for assistance. iii. The relation must be one which, in the opinion of the community, should be sedulously fostered. There wasno evidence given during the voir dire that could lead to this conclusion, unlike the relation between a solicitor and client which hasbeen recognized for centuries as being necessary for the proper administration of justice. iv.

The injury that would inure to the relation by the disclosures of the communication must be greater than thebenefit thereby gained for the correct disposal of litigation. There is no evidence in this case as to the implications of disclosure. It haslong been established by authority that, prima facie, in a communication between solicitor and client, all four requisites are met. Thecommunication here was not prima facie between a solicitor and client. Mr.

Istabouly in questioning, in fact, appears to haveacknowledged that the information could be released to the government, the police, the law, and the people. (Comments in italics aremine.) [14] Those four criteria are not met here. The privilege may, as Laycraft JA concluded, apply to statements given to those in alegal aid office whose objective is to determine whether a person qualifies for assistance and, if so, who should be assigned.

But afurther reading of Laycraft JA’s reasons shows that, in part, that is because: “When the State decides to assist its citizens who are notable to pay for their own defence in a criminal case, it is essential that the approach to the official assigned to that duty not be hamperedby fear of exposure to some other action.” (para 11) [15] In the case at hand, the state had no

part in finding counsel for the accused. Littlechild does not stand for the proposition thatanyone who assists another in finding a lawyer becomes a lawyer or an agent of a lawyer. [16] It was an error of law for the trial judge to expand the solicitor-client privilege to encompass the relationship between Mr.Istabouly and Mr. Alzrer. B. Trial Fairness [17] The voir dire was entered into with the parties focusing on whether the statement made was given to a party in authority. Thatis what they argued. [18] The decision rendered ignored that purpose and those arguments and focused entirely on whether Mr.

Istabouly was an agentof the defence lawyer retained. As the Crown points out, in fact that is exactly the opposite of what was argued. Whether Mr. Istaboulywas an agent of the state was suddenly converted to whether he was an agent of defence counsel. [19] Counsel for the appellant argues that Littlechild was a similar case in that, without warning, the trial judge interjected whentestimony might have strayed into the area of solicitor client privilege.

He argues, therefore, that the trial judge has an obligation toprotect such utterances even if they are not recognized by counsel. [20] In Littlechild, however, there was an air of reality to the issue given the Legal Aid angle. In the case at hand, Mr. Istabouly,while an advisor of some sort, was not hired by a state or other agency to find lawyers for people. He was not trained as a lawyer. Nordid he work for a lawyer. [21] Counsel are entitled to know what issue is being considered by a judge giving a ruling.

Had the trial judge, during the voirdire, determined that there was a solicitor-client issue developing, his obligation was to let the parties know so that they could addresstheir minds, and the evidence, to that issue. III. Conclusion

[ 22 ] For those reasons, the appeal is granted. The acquittal is set aside, and the matter remitted back to Provincial Court for trial before a different judge. Heard on the 11 th day of March, 2021. Dated at the City of Edmonton, Alberta this 17 th day of March, 2021 . J.S. Little J.C.Q.B.A. Appearances: L. Craggs for the Appellant S. Kousonsavath for the Respondent _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice J.S. Little _______________________________________________________ The text in paragraph 4 has been change to “his door was locked”.