2017 MBPC 52, 2017 MBPC 52

Cite: 2017 MBPC 52 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) C. Vanderhooft, and ) M. Lavitt, - and – ) for the Crown ) Guido Paul Amsel, ) S. Zaman, and Accused ) J. Kostiuk, ) ) ) ) for the Accused Judgment delivered: November 27, 2017 ) TRACEY LORD, P.J. Ruling on the Admissibility of Communications between the Accused and his Former Legal Counsel Introduction [ 1 ] The Crown is seeking to admit into evidence communications between Mr. Amsel and his former lawyers Ms. McEachern and Mr.

Orle, as well as their observations of his demeanor. [ 2 ] The communications in question can be divided in time into communications that occurred while counsel was acting and on the record, and communications that occurred after counsel had been granted permission to withdraw from the record. [ 3 ] There is no issue that the communications in question occurred in the context of a professional relationship between solicitor and client.

The issue is whether, and to what extent, those communications are protected from being shared in testimony at this trial; a trial respecting allegations of criminal offences months after the communications themselves occurred. [ 4 ] The professional relationship between Mr. Amsel and the law firm of Orle Davidson Bargen began in the summer of 2013. Ms. McEachern was the lawyer primarily dealing with Mr. Amsel’s files, acting under the supervision of Mr. Orle. Their representation of Mr.

Amsel related to a civil proceeding brought against him by his former wife for the payment of money owed and the disposition of shared property that was outstanding as a result of a prior legal settlement. In addition, they were also acting for Mr. Amsel with respect to a counter claim brought by him against his former wife, alleging theft and fraud from a shared business. These two actions are still before the court. [ 5 ] Ms. McEachern and her firm were granted permission to withdraw as counsel for Mr. Amsel by Justice Greenberg on September 23, 2014.

The application was done on the record in a courtroom, in the presence of Mr. Amsel. [ 6 ] The application occurred after a meeting between Mr. Amsel and both counsel in the fall of 2014 in which it was determined that counsel would be applying to withdraw. The Crown is seeking to have admitted into evidence communications that occurred during this meeting as well as counsel’s observations about Mr. Amsel’s demeanor. [ 7 ] On the date of the application Ms. McEachern arranged for someone to accompany her to the hearing. The Crown is also seeking to elicit from Ms.

McEachern her reasons for doing so. [ 8 ] It is also the Crown’s intention to elicit testimony from Ms. McEachern about a conversation that occurred in the hallway of the Law Courts building on September 23, 2014, after the court appearance in which permission to withdraw was granted, as well as her observations of Mr. Amsel’s demeanor at the time. [ 9 ] In July of 2015 the events that are the subject matter of this criminal proceeding unfolded. At that time both counsel provided statements to the Winnipeg Police Service.

[10] Mr. Orle is a named complainant in these proceedings relating to among others, a charge of attempt murder, involving analleged explosive device that was delivered to the law firm and addressed specifically to him. [11] Mr. Amsel is not waiving his right to maintain solicitor client privilege. [12] When the Crown alleges that privilege does not apply, the onus is on the Crown to show on a balance of probabilities that thecommunication should not be protected. Solicitor Client Privilege and Professional Obligation to Maintain Client Confidentiality [13] In the case of Solosky v.

The Queen, (SCC), [1980]1 S.C.R. 821 the Court set out the basic criteria establishingsolicitor client privilege. There must be a communication between solicitor and client, which entails the seeking or giving of legal advice,and which is intended to be confidential by the parties. [14] Solicitor client privilege was once strictly speaking an evidentiary rule. It has however become clear from a number ofSupreme Court of Canada decisions that the confidentiality presumed by the privilege has evolved into a substantive right. [15] In a recent Manitoba Court of Appeal case, R. v.

Douglas, 2017 MBCA 63, Justice Cameron reviewed this evolution beginningat paragraph 29, and noted that over the last two decades, the Supreme Court of Canada has consistently emphasized the significance ofthe principle of solicitor client privilege. At paragraph 32 she goes on to note that solicitor client privilege has long been known as apresumptive, prima facie or class privilege. Class privilege is a privilege that is granted because it is in the public interest, and is not tobe determined on a case by case basis. [16] Class privilege was described by the Supreme Court of Canada in the R. v.

Gruenke, (SCC), [1991] 3 S.C.R.263 at page 286 as: a privilege which was recognized at common law and one for which there is a prima facie presumption of inadmissibility (once it hasbeen established that the relationship fits within the class) unless the party urging admission can show why the communications shouldnot be privileged (i.e., why they should be admitted into evidence as an exception to the general rule).

Such communications areexcluded not because the evidence is not relevant, but rather because, there are overriding policy reasons to exclude this relevantevidence. [17] Further in her review in Douglas, Justice Cameron quoted from R. v. Fink, 2002 SCC 61 , [2002] 3 S.C.R. 209 atparagraph 49: Solicitor client privilege is a rule of evidence, an important civil and legal right and principle of fundamental justice in Canadian law.While the public has an interest in effective criminal investigation, it has no less an interest in maintaining the integrity of the solicitorclient relationship.

Confidential communications to a lawyer represent an important exercise of the right to privacy, and they are centralto the administration of justice in an adversarial system. Unjustified or even accidental infringements of the privilege erode the public’sconfidence in the fairness of the criminal justice system. This is why all efforts must be made to protect such confidences. Communications Covered by Solicitor Client Privilege [18] The meaning of “the seeking and giving of legal advice” has been broadly interpreted by courts. [19] In Descoteaux v. Mierzwinski, (SCC), [1982] S.C.J.

No 43, at paragraph 71 Lamer J said: In

summary, a lawyer’s client is entitled to have all communications made with a view to obtaining legal advice kept confidential.Whether communications are made to the lawyer himself or to employees, and whether they deal with matters of an administrativenature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order toobtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality.

The confidentialityattaches to all communications made within the framework of the solicitor client relationship, which arises as soon as the potential clienttakes first steps, and consequently even before the formal retainer is established. [20] Confidentiality attaches to all communications made within the framework of the solicitor client privilege even if not strictlyspeaking involving legal advice. This protection is routinely seen when counsel seek permission to withdraw. Few details or reasons aregiven by counsel.

The necessity of withdrawing may have nothing to do with the obtaining of legal advice, yet it is still confidential andsubject to privilege. [21] Some communications are not protected by the privilege. Communications that constitute an actual criminal act such as a threator fraud are not protected by privilege.

Likewise, where legal advice is sought for the purpose of facilitating a crime, the privilege doesnot exist, because it would undermine the interests of justice and the reason for the granting of the privilege. [22] Solicitor client privilege survives beyond the end of the professional relationship between lawyer and client. Communicationsmade during the relationship remain confidential after the relationship has been terminated.

Communications that arise after therelationship has ended, are not subject to the same privilege. [23] There will however be situations where communication that occurs after the solicitor client relationship has ended willnonetheless be privileged. Information that was previously privileged remains privileged if it is repeated in communication after theformal relationship is at an end. The content of the communication is still subject to privilege because of its previously protected status,not by virtue of the application of a current privilege. [24] Solicitor client privilege can be waived by implication.

For example, communications made in the presence of third parties, orin circumstances where there is no expectation of privacy are not protected by solicitor client privilege.

[ 25 ] In the circumstances of this case, the conversation that occurred in the hallway of the Law Courts building between Mr. Amsel and Ms. McEachern after she had been granted permission to withdraw is in my view not covered by solicitor client privilege for a number of reasons. [ 26 ] The withdrawal by counsel had just occurred in open court in Mr. Amsel’s presence. The status of their relationship had been dealt with by order of the court.

The conversation occurred in a public place and the subject matter of the conversation does not pertain to his legal circumstances, but is rather a suggestion of impropriety on the part of counsel. As a result, Ms. McEachern will be permitted to testify about this conversation as well as her observations of Mr. Amsel’s demeanor at the time. [ 27 ] Conversations between Mr. Amsel and Ms. McEachern and Mr. Orle prior to the firm withdrawing however are subject to solicitor client privilege. In my view this also includes observations about his demeanor.

The concept of communication includes more than spoken or written words. Communication also encompasses the tone and volume of speech as well as facial expressions and gestures. As a result, unless these communications are subject to one of the legal exceptions to solicitor client privilege they are protected from being given in evidence.

Exceptions to Solicitor Client Privilege [ 28 ] The Law Society of Manitoba Code of Professional Conduct Rule 3.3 deals with confidential information and allows for disclosure of such information in a number of circumstances: If expressly or impliedly authorized, if required by law or a court to do so, if required by the Law Society to do so or if otherwise authorized by the rule. [ 29 ] Rule 3.3-3A requires mandatory disclosure of confidential information, but only to the extent necessary: (

a) if the lawyer has reasonable grounds for believing that an identifiable person or group is in imminent danger of death or serious bodily harm and believes disclosure is necessary to prevent the death or harm; and (

b) the lawyer does not reasonably believe that such disclosure will cause harm to the lawyer or to the lawyer’s family or to the lawyer’s associates. [ 30 ] This rule mirrors what is known as the public safety exception. The purpose of the exception is the prevention of imminent danger to identifiable victims. [ 31 ] It is likely that the justification for the disclosure of privileged information when Ms. McEachern and Mr. Orle made their statements to the police in July of 2015 fell within the public safety exception.

However, it is also important to note that the disclosure of this privileged information was not viewed as necessary at the actual time that the communications were made.

The content of the conversation only became disclosable when it became relevant after the fact to a criminal investigation where the possibility of imminent danger to others became an issue. [ 32 ] The same communications may still be relevant now to the current criminal prosecution, but are nonetheless still protected by the overriding policy considerations underlying solicitor client privilege, unless they come within a recognized exception at this time. [ 33 ] The fact that the communications in question fell within a recognized exception in July 2015 recognizes the requirements of imminence and danger to an identifiable victim or group of victims.

The fact that it was once applicable does not mean that the justification for disclosure continues forevermore. Those same requirements must be present now in the context of the criminal prosecution, for the same exception to apply. Conclusion [ 34 ] My conclusion is that the privileged communications that took place between Mr. Amsel and his lawyers Mr. Orle and Ms. McEachern during the meeting in the fall of 2014 do not fall within any of the established exceptions that would allow for admission into evidence in these proceedings.

There is currently no imminent danger to identifiable victims that would engage the public safety exception. The previous application of this exception in July of 2015 does not extend to testimony in this prosecution. [ 35 ] That is not to say that the evidence does not have relevance to issues in this trial, but rather that the overriding policy considerations of solicitor client privilege have precedence. [ 36 ] As a result, Ms.

McEachern can testify that she arranged for someone to accompany her to court on the day that she withdrew as counsel, but not the reasons underlying the decision, if to do so necessitates reference to the confidential communications from the prior meeting. She can testify about the court proceedings that day (that has never been in issue) and the conversation that followed, including her observations about Mr. Amsel. [ 37 ] Mr. Orle can testify on any other matters relevant to these proceedings but not the privileged communications in the fall 2014 meeting. “Original signed by” TRACEY LORD, P.J.