r v. FRANK ZAMPINO, 2023 QCCA 1299

Unofficial English Translation of the Judgment of the Court R. c. Zampino 2023 QCCA 1299 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL Nos: 500-10-007193-194 , 500-10-007472-200 (500-01-160503-170 SEQ 001, 003, 004, 006, 007 and 008) DATE: October 20, 2023 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. FRANÇOIS DOYON, J.A. PATRICK HEALY, J.A. 500-10-007193-194 (500-01-160503-170 SEQ 001) HIS MAJESTY THE KING APPELLANT – Prosecutor v.

FRANK ZAMPINO RESPONDENT – Accused and BARREAU DU QUÉBEC ASSOCIATION DES AVOCATS DE LA DÉFENSE DE MONTRÉAL-LAVAL-LONGUEUIL and DIRECTOR OF PUBLIC PROSECUTIONS OF CANADA INTERVENERS 500-10-007472-200 (500-01-160503-170 SEQ. 003, 004, 006, 007 and 008) HIS MAJESTY THE KING APPELLANT – Prosecutor v. ROBERT MARCIL KAZIMIERZ OLECHNOWICZ BERNARD POULIN DANY MOREAU NORMAND BROUSSEAU RESPONDENTS – Accused and DIRECTOR OF PUBLIC PROSECUTIONS OF CANADA INTERVENER JUDGMENT [ 1 ] “A stay of proceedings is the most drastic remedy a criminal court can order […].

Nonetheless, this Court has recognized that there are rare occasions — the “clearest of cases” — when a stay of proceedings for an abuse of process will be warranted”: R. v. Babos , 2014 SCC 16 , [2014] 1 S.C.R. 309, paras. 30 and 31 ; see also R. v. Ahmad , 2020 SCC 11 , [2020] 1 S.C.R. 577; R. v. Ramelson , 2022 SCC 44 ; and R. v. Haevischer , 2023 CSC 11 . [ 2 ] The trial judge found that such was the case and ordered a stay of proceedings on September 30, 2019, in the case of the respondent Frank Zampino ( R. c.

Zampino , 2019 QCCQ 5880 – “Zampino decision”), and on December 2, 2020, for the other respondents ( R. c. Marcil , 2020 QCCQ 7898 – “Marcil decision”). [ 3 ] The standard of review is well known. It has been articulated and reiterated on several occasions, notably, in R. v. Babos , supra : [48] The standard of review for a remedy ordered under s. 24(1) of the Charter is well established. Appellate intervention is warranted only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice”.

[References omitted] [ 4 ] For the reasons that follow, the Court is of the view that the trial judge erred by misdirecting herself in law and by committing palpable and overriding errors of fact, in other words, reviewable errors of fact. A stay of proceedings should not have been ordered. I - BACKGROUND [ 5 ] The Unité permanente anticorruption (Permanent Anti-corruption Unit) (“UPAC”), a group made up of members from various organizations, undertook a major investigation known as “ projet Fronde ”. It had also conducted another investigation, known as “ Faufil” . [ 6 ] Following the projet Fronde , the respondents were indicted on various charges on September 19, 2017: fraud (380(1)(

a) Cr. C. ), breach of trust (122 Cr. C. ), municipal corruption (123(1)(

c) Cr. C. ) and conspiracy (465(1)(

c) Cr. C. ). Those charges were not laid against all of the respondents, but, overall, the case involves this type of offences. [ 7 ] At the time of that indictment, Mr. Zampino had moreover already been charged with conspiracy, fraud and breach of trust in the context of the Faufil investigation, a case involving a request for qualification and a call for tenders regarding the development of the Contrecoeur site and the completion of a project known as Nouveau Mercier .

Contrary to what the trial decisions may suggest, however, the other respondents were not charged in that matter. [ 8 ] On June 17, 2015, during the projet Fronde , a Court of Québec judge issued an authorization to intercept the private communications of 39 individuals, so-called [ translation ] “targets”.

Among the respondents, only Frank Zampino and Bernard Poulin were targets. [ 9 ] That authorization led to the interception of nearly 20,000 private communications, excluding those [ translation ] “without content”, i.e. telephone calls and text messages (“SMS”) with no transfer of information, also referred to as [ translation ] “X sessions”. Of those interceptions, 820 involved the participation of lawyers.

Investigators had access to the content of some of these, although a number of them turned out to be privileged. [ 10 ] A few months prior to the beginning of the trial in the Fronde file, the respondent Zampino filed a motion for a stay of proceedings, alleging that the interception of his private communications with his lawyers as well as the lax and negligent management of those interceptions were a violation of solicitor-client privilege, an infringement of his rights as guaranteed under the Canadian Charter of Rights and Freedoms (“ Charter ” ) and constituted an abuse of process.

He invoked the failure to ensure the protection conferred to him by ss. 7 , 8 and 11(

d) of the Charter . On September 30, 2019, the trial judge granted that motion. She declared that the wiretap authorization was invalid, [ translation ] “since it was obtained in violation of ss. 7 , 8 and 11(

d) of the Canadian Charter of Rights and Freedoms ”, and because the police had displayed negligence and laxity that had to be denounced . In the Zampino decision, she wrote: [translation ] [90] The defense has further demonstrated that the state's management of these conversations, in many respects and at many levels, demonstrates a laxity that is inconsistent with the many clear and consistent teachings of our Supreme Court to protect the fundamental and most important principle of justice that is solicitor-client privilege. [ 11 ] She ordered a stay of the proceedings against Mr.

Zampino. [ 12 ] Following that decision, the respondents Marcil, Olechnowicz, Poulin, Moreau and Brousseau also filed a motion to stay proceedings based on considerations similar to those invoked in the Zampino decision and adduced additional evidence. On December 2, 2020, the judge granted their motion and likewise ordered a stay of the proceedings against them. [ 13 ] The Crown appeals those two decisions. It argues that the trial judge erred in finding that the wiretap authorization, its terms and its execution did not sufficiently protect solicitor-client privilege and led to a violation of ss. 7 , 8 and 11(

d) of the Charter . It also argues that the trial judge erred in finding that the state’s conduct constituted an abuse of process justifying a stay of proceedings. [ 14 ] These two appeals were heard jointly, and the parties have rightly agreed that the evidence adduced in the context of the Marcil decision be filed in the appeal of the Zampino decision. II – OVERVIEW OF THE EVIDENCE [ 15 ] The following is a

summary of the evidence tendered upon the motions. The Court will revisit certain aspects of this evidence and specify the content thereof when addressing the arguments on appeal. [ 16 ] The projet Fronde was concerned with the allocation of professional service contracts in the context of public calls for tenders of the City of Montreal between 2002 and 2009.

More specifically, the investigation focussed on the award of contracts related to a water meter installation project in industrial, commercial and institutional buildings of the City of Montreal, allegedly in exchange for financial contributions to the Union Montréal party, then led by mayor Gérald Tremblay, who also happens to be a lawyer.

[ 17 ] At the relevant time, Mr. Zampino was mayor of the borough of Saint-Léonard and Chairman of the Executive Committee of the City of Montreal, while Mr. Marcil was a City employee. As for the other respondents, they held positions within consulting engineering firms. [ 18 ] The monitoring of private communications arose from a judicial authorization that targeted various individuals, none of which were lawyers (except Mr. Gérald Tremblay, who was not targeted in that capacity, by rather in his capacity as Mayor of the City of Montreal).

It authorized the interception of telephone calls and SMSs, was valid for a period of 60 days (from June 17 to August 15, 2015) and contained a basket clause that allowed the interception of communications of non-targeted persons who would communicate with the persons targeted. [ 19 ] The monitoring was for the most part done on a delayed basis, meaning that the communications were recorded automatically and listened to later, unlike live monitoring, which consists of listening to them in real time, whether they are otherwise recorded or not. [ 20 ] On that matter, the parties differ in opinion.

According to the appellant, there is no evidence of live monitoring. According to the respondents, such evidence exists. As such, the respondent Zampino submits that his communications with his lawyers were listened to live on at least 16 occasions. In support of this, he submitted a table appended to his supplementary memorandum showing that an analyst allegedly had access to those 16 communications while they were occurring.

The Court will return to this issue below, but it should immediately be noted that in the instant case, access to a communication does not necessarily mean that there was any listening or reading involved. [ 21 ] The interception system used was Target 360 o software, which ran on a [ translation ] “closed network” and was only accessible to authorized users via dedicated work stations.

Processing of communications [ 22 ] The general procedure for the processing of communications can be described as follows: an intercepted communication (called a “session” in the software) was first made available to the analysts, civilian employees of the Sûreté du Québec, who processed it. This was known as “System A”. If a communication was not blocked by the analysts following this first stage, investigators (police officers handling the case assigned to wiretapping) had access to the content of the communication for analysis purposes; this was known as “System B”.

In other words, investigators could not access the content of a communication without the analysts having processed it first. [ 23 ] In that process, analysts were responsible for listening to (or reading) the communication, reporting it and classifying it. However, if they had any reason to believe that one of the participants was a lawyer, they had to immediately block it and add the endorsement [ translation ] “notary/lawyer/judge” by way of comment.

Any prior communications related to the same telephone number was reported to a coordinator and had to be blocked retroactively. [ 24 ] When a communication was blocked, neither the analysts nor the investigators could access its content. They only had access to the metadata related thereto (date, telephone numbers, duration, etc.) and to the analysts’ comments, if any.

Only the monitoring room managers and the system administrators could access the content of a blocked communication, the former for quality control purposes and the latter to perform connections, monitor material sent to the authorizing judge (as per the terms of the authorization, as will be discussed below) and ensure classification of the communications following the judge’s response. [ 25 ] The nature and the time of certain operations or manipulations performed by users could be identified by the system. That information was recorded in the “audit trails” ( pistes de vérification ).

It was impossible to access the metadata of an intercepted communication, or the communication itself, without leaving a trace of that operation in the audit trails. However, the system did not allow one to determine whether a communication had been listened to, or to know who listened to it or who consulted it and when, if that was the case. [ 26 ] If a communication was blocked and a user attempted to access it, the system showed an error message which, in essence, read [ translation ] “Content blocked. You are not authorized to display this content”.

That communication nevertheless appeared as being “displayed” in the audit trails, even though there had been no actual access to it. The priority level of a communication could also be modified without it having been listened to or read. [ 27 ] Understanding what follows requires that we now set forth one of the features of the authorization at issue.

Indeed, the authorizing judge provided the following specific conditions to ensure the protection of solicitor-client privilege: [ translation ] No communication may be intercepted at a lawyer's office or residence or at any other place where lawyers ordinarily hold consultations with clients. As soon as there are reasonable grounds to believe that a lawyer is a party to a communication, the listening will be interrupted but the recording will continue.

Recordings whose listening has thus been interrupted will be sealed by the Service de la surveillance électronique of the Sûreté du Québec and must not be listened to by anyone until I have personally reviewed their content and ruled on the confidential nature of each intercepted communication. When recordings are placed under seal pursuant the above terms, a copy of the recordings will be placed on a CD or any other similar computer medium and will be given to me together with a list identifying the place, session, date and time.

I will indicate on this document which conversations or portions thereof are privileged and which are not. This document will be placed in a sealed envelope

together with the CD or similar computer medium. The envelope will be kept in the Court file relating to this authorization. I will give a copy of this document to D/S Sylvie Martel or her alternate. Conversations or portions of conversations that I deem to be non-privileged may be listened to by police officers assigned to the investigation, by civilian and police personnel assigned to wiretapping or by prosecutors in criminal and penal prosecutions.

If I am unable to exercise the powers provided for in this clause, they may be exercised by another judge of the Court of Québec. [Emphasis added] [ 28 ] This clause is important with respect to the application to stay proceedings since the respondents drew on this in making their case. Indeed, if, at first, the police believed that they were under no obligation to transmit all the recorded communications involving a lawyer to the authorizing judge, they revised their position in May 2016 after having discussed the matter with agents.

They concluded that they had to transmit them all, such that they had to retroactively retrieve thousands of them, since about twenty distinct projects were subject to a similar clause.

At the end of that process, 233 communications with lawyers in the instant case were unfortunately omitted and were therefore not delivered to the authorizing judge. [ 29 ] For the respondents, such police conduct constitutes one of the aspects of the case demonstrating impermissible laxity. [ 30 ] In any event, as regards to whether a communication was privileged or not, the procedure that had to be followed subsequently to the authorizing judge’s decision can be summarized as follow. [ 31 ] Communications deemed privileged were to remain blocked and the coordinator was to amend the endorsement from [translation ] “Notary/Lawyer/Judge” to [ translation ] “Privileged”.

For those that were not, the coordinator was to unblock them and assign them to analysts to process them as they would process a normal session. Once the analysts processed them, the investigation unit was to be notified via an amendment notice that the coordinator was to send to them. [ 32 ] As for communications that were privileged in part only, they were to remain blocked, so that no one could gain access to the privileged portions. An administrator was to edit them in accordance with the judge’s instructions and place the non-privileged portions in a file that was independent from the interception system.

The coordinator was to copy the report prepared by the analysts and link it to the original session in the system. It should be noted that those sessions remained blocked and that only a member of the management team was authorized to perform that procedure.

The coordinator was to further notify the investigation team that these sessions had been processed through an amendment notice. [ 33 ] The non-privileged portions of those communications were then made available to investigators. [ 34 ] Returning to the wiretapping procedure, the Target 360 o system included at the time a feature by which telephone numbers could be entered in a phone directory, allowing the system to automatically identify, for instance, phone numbers associated with lawyers. Such communications were thus readily identifiable by analysts who could block them.

However, because that feature tied together telephone numbers targeted by other Sûreté du Québec and UPAC wiretapping operations, including prior operations that may no longer have been active, it was not used in the Fronde investigation . The aim was to avoid the confusion that it could have caused and the unwitting importation of information in another operation that that could have led to, posing a risk for the security and integrity of the investigations.

The use of that feature did in fact comprise a risk, namely that investigators identify individuals targeted by other investigations and thus have access to confidential information. [ 35 ] Instead, analysts set up a telephone list (an external file outside the Target 360 o software) which indexed phone numbers communicating with the targets, including, inter alia , telephone numbers associated with a lawyer.

To distinguish the latter from the other participants in the communications, lawyers’ numbers were identified in red on the list. [ 36 ] At the beginning of the investigation, the list did not contain any phone numbers (except those of the targets). The numbers of the targets’ lawyers were therefore not identified at first, even though investigators knew the identity of some of them, including those of Mr. Zampino in the Faufil file. The analysts enriched the list as their work progressed.

As soon as they had reason to believe that one of the participants to the communication was a lawyer, they added him or her to the list. If an analyst changed a number from black to red on the list, he or she had to ensure that all previously processed communications involving that number were blocked (retroactive blocking). Moreover, as soon as they began processing a communication, analysts consulted the phone list. If any of the relevant numbers appeared, the communication had to be blocked (prospective blocking). [ 37 ] Analysts and investigators worked separately, in different areas.

The former were in a room that was not accessible to the latter (other than the monitoring room managers) and, for confidentiality and security reasons, their workstations did not have Internet access. They proceeded to identify communications potentially involving a lawyer by referring to their phone list or by analysing the content of the communications.

While analysts assessed the identity of the participant to a communication, the latter was [ translation ] “in abeyance” in System A and remained inaccessible to investigators in System B. [ 38 ] The Sûreté du Québec team of analysts includes dozens of people and processes on average between 3,000 to 5,000 communications daily in numerous projects. The risk of error is plain to see. [ 39 ] The team of investigators assigned to wiretapping in the projet Fronde was much smaller than the analyst team and operated differently.

It comprised three investigators (Catherine Poutré-Noiseux, Patrick Denis and Michel Vadeboncoeur) who divided the targets among them, to ensure that each always monitored the same targets. [ 40 ] The investigators worked, inter alia , with Erika Goulet-Larocque, a civilian tactical analyst whose main task consisted, in S ystem B, in identifying the people with whom the targets were communicating.

They also worked in collaboration with the lead investigator of projet Fronde , Yanick Gouin, who managed the project, proposed investigative procedures and, together with the team leader (at the time, France Lessard), ensured the coordination of the various phases of the project.

[ 41 ] The investigators used their own phone list to identify the people in contact with the targets. Analyst Erika Goulet-Larocque was responsible for preparing and enriching that list. Unlike the monitoring room analysts, Ms. Goulet-Larocque had access to the Internet and to police databases to assist her in her identification work. She could also obtain information from phone service providers. [ 42 ] Investigator Catherine Poutré-Noiseux testified that [ translation ] “quite frequently” (at least 20 times), communications involving a lawyer were not flagged by analysts and were made available to police.

Some of them were listened to, at least in part. [ 43 ] When such situations occurred, she promptly notified the analysts so that they would block the communication and add the lawyer’s phone number to their list. Because the investigators did not have the capability to block a communication, they had to notify the analysts to do so. The first time such an event occurred, she notified Ms.

France Lessard who assured her that her way of managing the situation was adequate. [ 44 ] Analyst Erika Goulet-Larocque testified that on July 6, 2015, i.e., a few weeks after the wiretapping began, investigators notified her that communications involving lawyers had been made available to them. She was thereupon asked to double-check her phone list to ensure that numbers associated with lawyers were properly identified and to notify investigators thereof.

Beginning on July 6, 2015, the investigators’ phone list was divided under two tabs, one of which was reserved exclusively for numbers associated with lawyers. [ 45 ] Ms. Poutré-Noiseux indicated that two communications that the authorizing judge had deemed to be non-privileged should have, in her view, been considered privileged. She believed that she should not have had access to their content, and she so notified Lieutenant Nathalie Gauthier. Such an incident did not occur again. The communications in question were related, respectively, to Bernard Trépanier and Luc Aubertin.

She did not know how those two communications were ultimately handled. [ 46 ] In January 2017, during the Faufil trial, the Crown informed the defense that a number of communications involving lawyers had been intercepted in the projet Fronde . A few days later, it disclosed to the defense a table listing [ translation ] “communications intercepted and submitted to the [authorizing] judge for determination as to privilege in relation to the four targets also charged in Faufil” (among the respondents in this appeal, only Mr. Zampino is included in those targets also charged in Faufil ).

That table revealed that 35 communications involving a lawyer and Mr. Zampino had been intercepted and sent to the authorizing judge for determination as to their privileged character. [ 47 ] Mr. Zampino therefore sent to the Crown a series of phone numbers related to his lawyers to ensure that all potentially privileged communications involving him had been disclosed to the defense. Four additional communications involving a lawyer and related to Mr. Zampino, which had not been blocked in the interception system nor sent to the authorizing judge for determination as to privilege, were thus identified.

On February 10, 2017, those communications were retroactively blocked by the electronic monitoring room coordinator. [ 48 ] According to the evidence filed in Mr. Zampino’s motion to stay proceedings, it has been established that the police intercepted 39 private communications between Mr. Zampino and a lawyer. Investigators had access to the content of one communication held to be privileged by the authorizing judge and to three others held to be non-privileged. They also had access to four communications which had not been sent to the authorizing judge and whose status was therefore not determined.

As we have just seen, these latter communications were blocked in February 2017. Consequently, investigators only had access to a single communication held to be privileged by the authorizing judge, although it is possible that some of those among the four whose status was not determined were privileged.

That communication was not led into evidence, the appellant having declared at the beginning of the trial that the evidence resulting from the wiretap would not be filed. [ 49 ] The evidence heard subsequently in relation to the motion of the other respondents shed further light on the matter. [ 50 ] At the close of the first day of the hearing on that motion, in November 2019, the evidence showed that 48 communications between the respondent Bernard Poulin and a lawyer were intercepted and sent to the authorizing judge.

Of that number, investigators had access to the content of two communications held to be privileged and three communications held to be non-privileged. One of the intercepted communications also involved the respondent Dany Moreau. That communication was held to be privileged and its content was never made accessible to investigators. [ 51 ] In cross-examination, computer analyst Christian Danguy was confronted with inconsistencies contained in his various reports.

He proceeded to conduct further inquiries and found a discrepancy between the number of communications involving a target and a number associated with a lawyer listed in the system and the number of communications forwarded to the authorizing judge. The hearing on the motion was consequently adjourned. [ 52 ] The evidence which was subsequently filed, together with that heard during Mr. Zampino’s motion, ultimately showed that 40 communications (instead of 39) between Mr. Zampino and a lawyer had been intercepted. One more communication was therefore added.

This was a session that had not been sent to the authorizing judge. It was blocked in 2019, such that investigators were able to access its content prior to that date. [ 53 ] That evidence also established that 64 communications between Mr. Bernard Poulin and a lawyer had been intercepted. Of that number, investigators had access to two communications held to be privileged and to three held to be non-privileged. They also had access to 16 communications that had not been sent to the authorizing judge and whose nature remains undetermined.

Those communications were also blocked in November 2019. [ 54 ] The evidence also supports the finding that communications involving a number associated with a lawyer were sent to the authorizing judge on five separate occasions. As explained earlier, initially, not all communications involving a lawyer had been sent to him. Team leader France Lessard was unable to explain how the communications were selected to be sent. She indicated having received [ translation ] “instructions from up top” not to send all the potentially privileged sessions to the authorizing judge. [ 55 ] According to Ms.

Nathalie Martin, head of the technological surveillance department from February 2016 to September 2017, the practice prior to May 2016 consisted in sending to the authorizing judge only those communications flagged by investigators. These

were selected based on what the investigation unit deemed relevant. Other communications remained blocked in the system and therefore remained inaccessible. In May 2016, i.e., after having consulted with agents, investigators understood that the terms of the authorization required that all communications involving a lawyer be sent to the authorizing judge. At that point, Ms. Martin ordered Lieutenant Nathalie Gauthier to ensure that all communications involving a lawyer be sent to the authorizing judge. [ 56 ] Despite Ms. Martin’s order, some communications were unfortunately not sent to the authorizing judge.

In all, of the 820 potentially privileged communications, as explained, 233 communications were not sent to the authorizing judge. Of that number, 96 were blocked by analysts, while 137 were accessible to the investigation team, before being blocked on November 22, 2019. [ 57 ] According to analyst Christian Danguy, of the 96 blocked sessions, 88 contained no “information”. This could have included, for instance, a dial tone, a phone service provider announcement, or a voice mail automated message.

It is the appellant’s view that those sessions cannot not be characterized as “communications” within the meaning of s. 183 of the Criminal Code . [ 58 ] Of the eight other sessions containing information, four were related to Mr. Gérald Tremblay and four to Mr. Zampino (these are communications whose existence was revealed in the motion for disclosure of evidence in the Faufil case). As explained, those communications related to Mr. Zampino were only blocked in February 2017 and were therefore accessible to investigators prior to that date.

Finally, of the 137 unblocked and accessible communications up to November 22, 2019, 56 contained no information and, among the 81 others, 16 were related to the respondent Bernard Poulin and one was related to Mr. Zampino (these are additional communications whose existence was discovered in 2019). Despite the Crown’s request to that effect, the trial judge refused to examine those communications to determine whether they were privileged or not, holding that they had to be presumed privileged.

III – THE JUDGMENTS IN FIRST INSTANCE [ 59 ] As we know, the judge rendered two decisions ordering a stay of proceedings. It should be recalled that, at the outset, as it argued the respondent’s Zampino motion, the appellant told the judge in the following terms that, under the circumstances, it would not proffer wiretap evidence: [translation ] […] the Crown does not intend to use the wiretaps in any way, whatsoever […] the Crown, […] undertakes to act as if those wiretaps never existed. The September 30, 2019 judgment (Zampino judgment) [ 60 ] With respect to Mr.

Zampino’s motion, the judge was of the view that the terms of the authorization and the [translation] “procedures put in place” by the state were abusive and unduly infringed upon Mr. Zampino’s privacy.

After having written that [translation] “the wiretap warrant provided the maximum duration” (60 days), she added that [translation] “the applicant no longer had any privacy” during that period. [ 61 ] Noting that the authorization allowed for the use of cameras as well as GPS beacons and that it even provided for post-arrest monitoring in police vehicles, the judge concluded that [translation] “it is difficult to conceive of anything more intrusive, and indeed, abusive”.

Moreover, in the judge’s view, the measures used to safeguard solicitor-client privilege provided for in the authorization, including the clause described above, were clearly insufficient, notably because the authorizing judge would automatically listen to all conversations between a target and a lawyer. Also, the authorizing judge could divide a conversation in order to block the privileged portion only.

As the trial judge noted, [translation] “[s]olicitor-client privilege cannot be fragmented” and, in any event, the authorizing judge was not in a position to distinguish between what was privileged and what was not: [ translation ] [50] Solicitor-client privilege is not to be fragmented on a case-by-case basis, from various conversations or snippets of conversations, gleaned from a defined temporal and situational space, but constitutes a continuum of communication between a lawyer and his or her client. […] [52] Thus, in the Court's view, it seems difficult to imagine how an authorizing judge, who is not familiar with the entire factual history of a case, can determine what is privileged and what is not, in whole or in part. […] [54] Also, the judge is not familiar with the evidence, nor with all the explicit and implicit implications of the words exchanged between the parties.

What is passed on to the police, after review, can become a trove of information for the latter, who better understand the evidence and is in a position to make connections with material that may appear inconsequential to the authorizing judge. [References omitted] [ 62 ] Moreover, at the time that the authorization was granted, Mr. Zampino was preparing for a trial in which he was facing charges, according to the trial judge, for acts of a similar nature ( projet Faufil ).

According to her, the authorizing judge should have thereupon taken that situation into account and have been stricter as to the information that was to be disclosed to him by the Information to Obtain (ITO) (for example, the names and contact details of the targets’ lawyers) as well as to the measures to protect solicitor-client privilege. [ 63 ] She was critical not only of the duration and the circumstances of the wiretapping, but also of the use of investigative techniques that sought to elicit reactions from the targets in order to obtain evidence in the form of conversations. [ 64 ] She rejected the notion advanced by the appellant that the interceptions involving lawyers occurred inadvertently.

Rather, in her words, they were [ translation ] “intended, targeted and inevitable”.

[ 65 ] In the judge’s view, those communications should have been blocked at the outset and kept under seal [ translation ] “without anyone having access thereto, except following a hearing, the parties’ representations and judgement allowing their disclosure, until the end of the proceedings” especially given that the requirements of s. 186(2) Cr. C. had not been met. The state displayed laxity in the management of the authorization and the situation was exacerbated by the monitoring of the communications by the authorizing judge and their disclosure to police, in the absence of argument, whereas Mr.

Zampino was to be tried in the Faufil case. She was therefore of the opinion that there had been numerous and serious violations of ss. 7 , 8 and 11 (

d) of the Charter . [ 66 ] Relying on a double presumption (that communications with a lawyer are privileged and that a breach of the privilege is prejudicial to trial fairness), she was of the view that the state’s conduct was all the more serious. [ 67 ] With respect to the Crown’s statement that it did not intend to use that evidence, the judge noted: [ translation ] [104] Although the Crown indicated to the Court that it would not use the wiretaps during the trial, this assertion in no way reduces the violations that occurred in the first place.

Their use would only constitute an additional violation. [105] The Court has ruled that the process of obtaining the wiretaps, as well as the management of the wiretapping itself, were flawed, and the evidence derived from the wiretaps seems impossible to determine, although the Court had concerns in that regard at the hearing. [106] It is impossible to extract all the information contained in or derived from those illegal wiretaps.

It may be a question, for example, of trial strategy, of whether or not to call a witness, or of preparing for the cross-examination of an accused. [ 68 ] Finding that the two categories of R. c. Babos , supra, (trial fairness and the integrity of the justice system) were at issue, the judge concluded that no remedy less drastic than a stay of proceedings could be ordered. The December 2, 2020 judgment (Marcil judgment) [ 69 ] The judge noted that the previous decision served as a starting point for this one.

The Zampino judgment was therefore incorporated into the Marcil judgment and was to form an integral part thereof.

That being so, in the judge’s view, the same conclusion must apply, especially given that the evidence was even more convincing: [ translation ] [16] The evidence indicates a serious situation, more serious in fact than that on the hearing of the first motion for a stay of proceedings. [ 70 ] She added that the police had knowingly breached the terms of the authorization: [ translation ] [8] According to witness Danguy's audits, there remain, to this day, 233 presumptively privileged conversations in the police computer system that have not been sent to the authorizing judge, as the latter’s order clearly enjoined them to do in the wiretap warrant, dated June 17, 2015. […] [98] In the Court's opinion, the crux of the matter lies in UPAC's breach of the authorizing judge's order, which was in fact clearly set out in the wiretap warrant under the heading “ Terms for safeguarding solicitor-client privilege ” . [99] According to the witnesses’ testimony, this was done knowingly. [ 71 ] She noted the difference in views referred to previously between investigator Poutré-Noiseux and the authorizing judge as to the privileged nature of two communications.

Clearly, she considered that the authorizing judge had erred and she criticized the inspector for her failure to follow up: [ translation ] [41] While several solicitor-client sessions were sent to the authorizing judge, as required by the order, for determination as to whether or not those conversations were privileged, investigator Poutré-Noiseux stated that, upon the return of sessions that had been held to be non-privileged by the judge, she had blocked two that, in her opinion, were privileged. [42] She listened to them and determined that she should not have had access to them, contrary to the authorizing judge's opinion. [43] Although this evidence was not known at the time of the first hearing in the judgment staying the Frank Zampino proceedings, the Court had raised such a possibility. [44] This leads to the finding that the authorizing judge should not have listened to those conversations, already presumed privileged in any case, since he was not familiar with the fine points of the investigation, especially since the latter had been ongoing for six years. [45] He therefore did not know the value of the information given to investigators.

[46] Although investigator Poutré-Noiseux responded in this way, she did not follow up on her request to block those two sessions. [ 72 ] In the judge’s view, there had been improvisation, disorganization and bungling on the part of agents of the state and she reiterated that the authorizing judge should not have listened to the communications involving a lawyer, since he could not have known the significance of the information that they contained. [ 73 ] She criticized the agents of the state for having knowingly breached the terms of the authorization [ translation ] “ in order to pick and choose their evidence, sort it out, make their case in an editorial fashion, for the purposes they were seeking ”.

Such conduct could not be tolerated. To find otherwise [ translation ] “would send the message that the ends justify the means, no matter which ones are […] used by the police, and irrespective also of whether they constitute flagrant violations of the accused’s constitutional rights and a judge’s order”. [ 74 ] The investigators’ conduct constituted [ translation ] “a serious violation of the integrity of our justice system which brings its administration into disrepute”, which must be denounced. The police investigation in its entirety was, thereby, flawed.

Relying on Babos and the second category of abuse that it describes, the judge concluded that this was a clear case in which a stay of proceedings was necessary. [ 75 ] This Court now turns to an analysis of those two judgements. IV – INFRINGEMENT OF THE RESPONDENTS’ RIGHTS The wiretap authorization [ 76 ] To begin with, we note that it was not open to the judge to impugn the duration of the authorization, i.e., 60 days, nor the means of investigation used by the police.

Yet, that is what she did in the Zampino judgment: [ translation ] [21] Since this was an invasion of privacy, the Criminal Code provides a mechanism for granting authorization, as well as terms and limits thereof, particularly as to time, i.e., a maximum of sixty days. [22] Here, the wiretap warrant provided for the maximum duration, and a reading of the terms of the warrant leads the Court to conclude that the applicant no longer had any privacy during those two months. [23] On November 10, 2015, the applicant received a notice pursuant to ss. 196 and 487.01(5) Cr.

C. , informing him that he had been the subject of wiretapping between June 17 and August 15, and that the authorization allowed his activities to be observed by means of a camera or other similar electronic device, pursuant to the provisions of s. 487.01(4) Cr. C. [24] Even the applicant's spouse was included among the targets whose communications could be intercepted during those two months, under the same restrictive terms as all the other targets. The applicant's workplace was also covered by the warrant. [25] The warrant also simultaneously provided for a general warrant pursuant to s. 487.01 Cr.

C. , a warrant for a tracking device pursuant to s. 492.1 Cr. C. , and a warrant for a transmission data recorder pursuant to s. 492.1 Cr.

C . [26] This meant that the targets' places of residence and vehicles were also among the places where private communications could be intercepted. [27] Moreover, all Internet communications involving the targets were intercepted during that period. [28] The warrant even provided terms for post-arrest monitoring in police vehicles, whether unmarked or not, as well as in any place of detention, prior to the appearance of the persons targeted by the warrant. [29] In the Court's opinion, it is difficult to conceive of anything more intrusive, and indeed, abusive. […] [References omitted] [ 77 ] An authorization’s duration and the intensity of the investigative measures are to be assessed in light of the law, the scale and complexity of the case, and not in the abstract.

It is true that the measures put in place were uncommonly extensive; this does not mean, however, that they were abusive, without further demonstration. Yet the judge provided no analytical factor, simply stating that Mr. Zampino [ translation ] “no longer had any privacy during those two months”. [ 78 ] The judge took issue with the fact that the authorization was coupled with a general warrant (487.01 Cr. C. ), an assistance order (487.02 Cr. C. ), a warrant authorizing a tracking device (492.1 Cr. C. ) and a warrant allowing the use of a transmission data recorder (art. 492.2 Cr. C. ). Yet s. 186(8) Cr.

C. allows such orders to be issued if they are related to the implementation and the execution of the authorization. That was the case here. As the appellant argues, [ translation ] “these were not additional discrete invasions of [the respondents’] privacy capable of constituting a violation, let alone an abuse of process”. [ 79 ] Moreover, contrary to what the judge suggested, the fact that Mr. Zampino’s spouse was a target and that his vehicles as well as his [ translation ] “places of residence and work” were included in the locations targeted was in no way inherently abusive or offensive.

Police investigations in matters such as corruption, conspiracy and fraud sometimes require extensive measures, provided that they are within the law . In the case at bar, the authorizing judge simply rendered orders necessary for the execution of the authorization pursuant to s. 186(8) Cr. C. In short, the trial judge could not criticize the authorizing judge for having done this without any further

demonstration and, in so doing, she erred in law. She could not hold, without evidence, that the measures put in place were, inthemselves, abusive. [80] We now turn to the professional secrecy protection clause. [81] The judge’s reasoning on the issue appears rather unclear. [82] On the one hand, she seemed to conflate the authorization’s validity (or legality) with its execution.

On the other hand, she statedthat the communications should have been blocked and sealed from the outset, with no one – not even the authorizing judge –being ableto have access thereto, adding nevertheless that the police had acted improperly by not complying with the order and by not sending allthe conversations to the authorizing judge for the purpose of listening to them. [83] In any event, the judge erred in law when she wrote: [translation] “Nothing in the warrant addresses reasonable and probablegrounds to believe that the applicant’s solicitor has been or is about to become a party to an offence”.

In doing so, she was necessarilyreferring to s. 186(2) Cr. C., which applies in fact only in the case of interceptions that will occur “at the office or residence of a solicitor,or at any other place ordinarily used by a solicitor and by other solicitors for the purpose of consultation with clients”. This was not at allthe case here, rendering that subsection inapplicable. The communications involving lawyers were not intercepted at the latter’s officesor residences, or at any other place usually used for consultation with clients.

They were intercepted at their clients’, i.e., targets,locations, solely because they communicated with the latter (or vice versa). Those interceptions were carried out in accordance with theso-called basket clause that authorized the interception of communications between the targets and unknown persons. [84] In other words, the lawyers were not targets, such that the authorization cannot be said to have contravened the provisions of s.186(2) Cr. C. It is therefore inaccurate to say, as did the judge, that the interceptions of the lawyers’ communications were [translation]“intended, targeted and inevitable”.

While it is obvious that they were predictable, the purpose of the authorization and its execution wasnot to intercept the lawyers’ communications, but rather those of the targets. [85] It is in this sense that the lawyers were unknown persons. Of course, the existence of some of them was known to police, but thefact is that they were not persons “the interception of whose private communications there are reasonable and probable grounds tobelieve may assist the investigation”: R. v. Chesson, (SCC), [1988] 2 S.C.R. 148, p. 164.

The lawyers were not targetedby the investigation and their communications could not, by themselves, assist the investigation. [86] It bears repeating: a person is unknown “even if police officers know of them, if there are no reasonable grounds to believe thatintercepting their conversations could be useful to the investigation”: Pasquin c. R., 2014 QCCA 786, para. 43, and the communicationsinvolving lawyers were intercepted not because police officers had grounds to believe that intercepting those communications would beuseful to the investigation, but because they contacted the targets (or vice versa).

Indeed, in Pasquin, the Court rejected the notion that s.186(2) Cr. C. always applies, including when the lawyer is not even the subject of an investigation and his communications are recordedsolely because he communicated with a target. [87] As to the police’s interest in those conversations, investigator Poutré-Noiseux was categorical; there was none: [translation] Q O.K. Was there any particuliar interest in lawyer-target conversations?

In the sense that they could provide important information.Did you, in the investigation, in the plan… A None whatsoever. [88] Team leader France Lessard confirmed that the investigation team had [translation] “no interest” in that type of communications.Indeed, the fact that Ms. Poutré-Noiseux deemed it necessary to notify her superior that communications cleared by the authorizingjudge should have, in her view, been classified as privileged provides a further indication that the police were not seeking to interceptlawyers’ communications.

In this regard, one can also consider the fact that all communications related to Mr. Gérald Tremblay weresystematically blocked, even though he was not actively practicing law. Everything therefore points to the fact that the police had noparticular interest in those communications. [89] Therefore, the judge was wrong to infer from Ms. Nathalie Martin’s testimony that the police had a particular interest in thetargets’ communications with their lawyers. [90] Ms.

Martin testified that at the time of the wiretapping in the Fronde investigation, the practice then in force at the Sûreté duQuébec was to block all potentially privileged communications and to send to the authorizing judge only those of which investigatorswanted their status to be determined (privileged or not). According to the respondents, that practice was based on an erroneousinterpretation of the protection clause. Ms. Martin testified that the choice of communications to be sent to the authorizing judge fordetermination of their status was established on the basis of the investigation’s requirements.

It is in that context that she uttered thesentence that the respondents hold against her: [translation] “investigators were to indicate which lawyers, to them, in fact, […] where ofinterest, which lawyers were of interest to them”. [91] That sentence, when considered in its context, does not show that the police had an illegitimate interest in the lawyers’communications. On the contrary, Ms. Martin stated that investigators were able to determine, based on the investigation’s requirements,which communications had to be sent to the authorizing judge.

In other words, they prioritized the communications of certain targets.Ms. Martin had no idea of how investigators selected the communications to be sent to the judge (before realizing that they all had to besent to him). It cannot be inferred from this testimony that the targets’ lawyers were known persons within the meaning of Chesson orthat their communications were targeted. [92] The fact that Mr. Zampino was also charged in the Faufil case at the time of the interceptions does not change this.

On that point,the appellant rightly argues that [translation] “persons charged or under investigation must be capable of being subject to lawfully

authorized electronic surveillance” », and that [ translation ] “nothing justifies that they benefit from immunity, purportedly on account of an increased risk of intercepting communications involving a lawyer”. Knowing that a target will likely communicate with a lawyer is not a bar to the issuance of a wiretap authorization. One cannot argue that the execution of a valid judicial authorization should be prevented because there was an increased risk that a lawyer might contact a target (or vice versa).

The solution lies in the execution of such an authorization and its implementing provisions. [ 93 ] The same holds true with respect to the fact that the investigators publicly disclosed information about ongoing police operations in order to provoke communications relevant to the investigation . The record does not show that the investigators acted for the purpose of provoking communications between the targets and lawyers, communications that could turn out to be privileged . The interception of such communications was simply a collateral effect of the investigation.

To say otherwise, as the judge did, amounts to prohibiting any police scenario aimed at eliciting a reaction from a target, since a person involved in a crime is always liable to communicate with a lawyer under such circumstances. [ 94 ] In the case at bar, the authorizing judge knew that certain targets (including Mr. Zampino) were accused in the Faufil case and that investigators would employ tactics designed to have them react in order to elicit communications. He had before him all of the information necessary to decide to issue the authorization.

In other words, he had before him sufficiently accurate and complete information that allowed him to exercise his jurisdiction with full knowledge of the relevant facts, which is not to say, as will be discussed below, that it would not have been more prudent to provide more robust terms on that matter. [ 95 ] All of this does not mean that the authorization was beyond reproach. Some have spoken of its validity, others, of its legality.

Yet, because the judgments were rendered in the context of a claim for relief under s. 24 of the Charter , and not on an application to quash or set aside an authorization, one should speak instead of its reasonableness (or lack thereof) with regard to the protection of rights under the Charter , notably s. 8 , it being understood that an interception carried out pursuant to an otherwise valid authorization will be reasonable: R. v.

Doroslovac , 2012 ONCA 680 , para. 30 ( application for leave to appeal to the Supreme Court denied, April 25, 2013, No. 35126). [ 96 ] In Pasquin , supra , the Court endorsed a protection clause that bore certain resemblances with the one at issue here, although there exist significant differences between the two.

Indeed, in Pasquin , the clause, which stemmed from a directive by the Sûreté du Québec, read as follows: [ translation ] [15] With live monitoring , the analyst who observes that one of the callers is a solicitor must interrupt the interception, that is, he or she must immediately stop listening to the conversation and stop recording . The portion of the conversation that is already recorded is then sealed, archived, and access to it is blocked. [16] As for pre-recorded monitoring , as its name indicates, it occurs once the conversation has been recorded. It is entirely recorded and kept for later monitoring.

In that case, the Directive states that the analyst must stop listening as soon as he or she observes that one of the callers is a solicitor . The analyst must then block access to the recording, seal it, and archive it. The Directive does provide, however, that if the analyst has reasonable grounds to believe that a conversation that has been made inaccessible is not privileged, the head of the Electronic Surveillance Unit may inform an agent (within the meaning of subsection 185(1) Cr.

C.) and send it on, sealed, for the latter to determine whether a judicial decision should be sought on the matter. [Emphasis added] [ 97 ] The directive endorsed in Pasquin was therefore different. Indeed, contrary to the instant case, it clearly distinguished between the terms applicable to pre-recorded monitoring and those applicable to live monitoring (whereupon the monitoring and recording had to stop immediately).

Moreover, pursuant to that directive, only communications for which there existed reasonable grounds to believe that they were not privileged were to be sent to a judge for determination on the matter. This was not the case here, if one relies on the

interpretation given to the clause by the parties and the trial judge: all conversations were to be sent to the judge, who would then review them even if there existed no grounds to believe that they were not privileged. [ 98 ] In Pasquin , conversations with a lawyer were not thus sent to the judge until such time that an agent deemed that there existed reasonable grounds to believe that the lawyer was [ translation ] “involved in the criminal activities” under investigation, which was not the case here.

Moreover, the directive provided that the recording of live monitored interceptions was to stop, contrary to the terms of the clause in the case at bar. [ 99 ] Without directly commenting on the validity of the directive regarding live monitoring, the Court approved the directive used in Pasquin with regards to pre-recorded monitoring. What is the situation in the case at bar? The clause at issue in the case at bar [ 100 ] It should be mentioned that interpreting the clause at issue in the case at bar is no easy matter. Let us give it a closer look.

To facilitate this exercise, we reproduce it again in part: [ translation ] As soon as there are reasonable grounds to believe that a lawyer is a party to a communication, the listening will be interrupted but the recording will continue. Recordings whose listening has thus been interrupted will be sealed by the Service de la surveillance électronique of the Sûreté du Québec and must not be listened to by anyone until I have personally reviewed their content and ruled on the confidential nature of each intercepted communication. […]

The sealing procedure described above shall apply, with such modifications as the circumstances require, to any other type of private communication intercepted . [Emphasis added] [ 101 ] Two aspects of this clause beg attention: 1) Since [ translation ] “the recording will continue” and the clause deals with [ translation ] “[r]ecordings whose listening has thus been interrupted” the inevitable conclusion is that it necessarily and solely refers to live monitoring, since, in the case of pre-recorded monitoring, the recording has already ended.

Without of course asserting that that was the intended purpose, the fact remains that, literally, it could be understood in that way. 2) Moreover, it could also be wrong to argue that all communications were to be sent to the judge, whereas only those that the police wanted to listen to had to be since, according to the clause, they [ translation ] “ [were not] not be listened to […] until ” the judge ruled on the confidential nature [ translation ] “of each intercepted communication” . T herefore, it would only be those communications that the police wanted to listen to that had to be sent to the judge.

That would require that the police make a choice, a choice based on the requirements of the investigation, which is what the respondents argue that they improperly did. [ 102 ] To state the obvious, the words [ translation ] “of each intercepted communication”, as well as those found in the last paragraph, lead to the conclusion, as the parties argue, that all interceptions were covered and therefore had to be sent to the authorizing judge, including pre-recorded interceptions (in light of the clause’s last paragraph), which is obviously consistent with the very nature of wiretapping, that is generally conducted on a delayed basis.

In reality, that is not the issue, however. This exercise shows, rather, the clause’s sheer ambiguity and the distinct possibility that the police simply made a mistake in interpreting it at the outset, thus eliminating any likelihood of gross negligence and bad faith on that matter, as the respondents argue and as the judge evidently found . Indeed, the latter was of the view that, according to the clause, all communications involving a lawyer had to be delivered to the authorizing judge, such that the police had willfully failed to comply with it.

Yet, we know that investigators believed the opposite at first before concluding otherwise in May 2016, following discussions with agents.

Never, in the Marcil judgment, did the judge contemplate the possibility of an error made in good faith before making a finding of gross negligence and even bad faith on the part of police who, in her words, [ translation ] “knowingly” violated the terms of the clause: [ translation ] [98] In the Court's opinion, the crux of the matter lies in UPAC's breach of the authorizing judge's order, which was in fact clearly set out in the wiretap warrant under the heading [ translation ] “ Terms for safeguarding solicitor-client privilege ”. [99] According to witnesses’ testimony, this was done knowingly. […] [103] Police officers, UPAC investigators, team leaders, captains and superiors who did not comply with a judge's order in order to pick and choose their evidence, sort it out, make their case in an editorial fashion, for the purposes they were seeking, this cannot be tolerated. […] [106] This was not a snap decision, made by a police officer in the heat of the moment.

These were concerted, ongoing acts involving several levels of decision-making, from which emanated the instruction not to send everything to the judge, in other words to disobey his order. For others, it was a matter of laxity and negligence. [107] The Court cannot continue the proceedings after such a finding. The police investigation is vitiated.

The evidence heard undermines any confidence in the rest of the investigation. [ 103 ] It was an error of law to fail to consider all of the evidence, including, in the instant case, the protection clause’s ambiguity, thereby reducing the magnitude of the blame cast against the police. [ 104 ] In any event, whatever

interpretation must prevail, two conclusions are inevitable: first, the protection clause in the case at bar was, at the very least, confusing and, second, it was less protective of solicitor-client privilege than that in Pasquin . [ 105 ] Indeed, on the first point, the clause was vague as regards pre-recorded monitoring and, on the second point, either the pre- recorded conversations were simply not protected, or they were all liable be monitored, if only by a judge, and they could therefore be more easily held to be non-privileged without having to first undergo the screening stage to determine that there were reasonable grounds to believe that they were not. [ 106 ] What can explain this change in the Québec approach?

Why did Québec police, and more particularly the Sûreté du Québec, stop using a formula recognized to be valid in Pasquin ? Why were the terms of the wiretap authorization issued on June 17, 2015, therefore after the April 15, 2014 Pasquin decision, so different?

The record provides no answer to these questions, but the fact of the matter is that the terms of the authorization here were more permissive and more readily allowed access to conversations that may have been, at least on their face, privileged. [ 107 ] The intervener Director of Public Prosecutions of Canada indicated to the Court that the standard clause used in Québec by federal prosecutors is similar to the one used in the case at bar, in that all communications to which access is not permitted because they involve a lawyer, whether monitored live or on a delayed basis, can be submitted to a judge so that he or she [ translation ] “determines, ex parte , whether access to that communication can be granted”.

It is perhaps true that this standard clause is akin to the one at issue here in that prior screening is not required (although it also contains an important difference, since it is clear that all communications need not be submitted to the judge); this does not explain, however, why the practice in Quebec has changed and has become less protective of solicitor-client privilege.

[ 108 ] Solicitor-client privilege is a fundamental concept in Canadian law and it must be protected at all costs by limiting to the fullest extent possible access to privileged conversations. [ 109 ] As the intervener Association des avocats de la défense de Montréal-Laval-Longueuil rightly observed, [ translation ] “the professional secrecy of lawyers is essential to the proper functioning of our legal system”. The intervener thereby echoed decisions of the Supreme Court, notably Canada (A.G.) v.

Chambre des notaires du Québec, 2016 SCC 20 , [2016] 1 S.C.R. 336, which held that such secrecy is a principle of fundamental justice within the meaning of s. 7 of the Charter . For its part, the decision in Canada (Privacy Commissioner) v. Blood Tribe Department of Health , 2008 SCC 44 , [2008] 2 S.C.R. 574, highlighted the essential character of a lawyer’s advice in our legal system and the need to give it an assurance of confidentiality as close to absolute as possible. As noted in Rizzuto c.

R. , 2018 QCCS 582 , par. 209 , the utmost caution is called for. [ 110 ] This being so, it is undeniable that, even though communications between a client and his or her lawyer do not necessarily involve the provision of legal services, they must take place in a climate of confidence. Without of course suggesting that such a climate of confidence must necessarily be respected to the point where all communications between a lawyer and his or her client must remain confidential (that is not the law), it remains essential to consider that reality when developing the terms of access with respect to wiretaps.

Thus, in Blank v. Canada (Minister of Justice), 2006 SCC 39 , [2006] 2 S.C.R. 319, the Court noted: 26 Much has been said in these cases, and others, regarding the origin and rationale of the solicitor-client privilege. The solicitor- client privilege has been firmly entrenched for centuries. It recognizes that the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it .

Society has entrusted to lawyers the task of advancing their clients’ cases with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence .

The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice. [Emphasis added] [ 111 ] Knowing that the conversation could be monitored (even if only by a judge) without any prior grounds to believe that it may not be privileged (whereas it is presumptively so), that confidence is in risk of being eroded.

Not because a judge will fail to respect confidentiality, but because one cannot exclude the risk of error when sending recordings to the judge, nor even errors by the judge. [ 112 ] Similarly, the possibility of indiscriminate monitoring, by anyone, has the potential of undermining the confidence of clients who believe, by and large, that no one, no matter what their role, will listen to their communications of a legal nature. Yet there exists a means of effectively protecting that confidence and that is by using a clause similar to the one used in Pasquin .

To be clear, what is at issue here is the clients’ confidence and not an infringement of the privilege; nevertheless, that confidence is the foundation of a solicitor-client relationship. [ 113 ] Of course, a judge, a court of law, is the appropriate forum to determine that such a communication is not privileged: Foster Wheeler Power Co. v.

Société intermunicipale de gestion et d'élimination des déchets (SIGED) inc., 2004 SCC 18 , [2004] 1 S.C.R. 456, para. 47 . [ 114 ] Even so, the trial judge determined that, contrary to what the authorization provided, a judge was not able to divide a communication to glean non-privileged portions therefrom.

As mentioned earlier, she wrote, in the Zampino judgment: [ translation ] [50] Solicitor-client privilege is not to be fragmented on a case-by-case basis, from various conversations or snippets of conversations, gleaned from a defined temporal and situational space, but constitutes a continuum of communication between a lawyer and his or her client. […] [52] Thus, in the Court's view, it seems difficult to imagine how an authorizing judge, who is not familiar with the entire factual history of a case, can determine what is privileged and what is not, in whole or in part. [53] Especially in a context where the investigation has been going on for six years and the applicant has been represented by the same firm for three years. [54] Also, the judge is not familiar with the evidence, nor with all the explicit and implicit implications of the words exchanged between the parties.

What is passed on to the police, after review, can become a trove of information for the latter, who better understand the evidence and are able to make connections with material that may appear inconsequential to the authorizing judge. [Reference omitted] [ 115 ] This shows very little regard for judicial experience and indeed for the judiciary, not to mention that there is, in that assertion, a good deal of speculation, hypotheticals and even bias. Judges are trained to render decisions based on the evidence and the law. One must be willing to have confidence in the courts.

If they are mistaken, there are means to challenge their decisions. [ 116 ] Moreover, the case at bar clearly shows the value of the presumption that judges will not render a decision if they are not able to do so legally. Indeed, out of an abundance of caution, the authorizing judge, in this case, characterized as [ translation ] “privileged” all communications that were either unintelligible or inaudible.

Under those circumstances, surely one cannot suggest, as the trial judge did, that the authorizing judge took on a role that he was unable to assume. [ 117 ] On that issue, the intervener Barreau du Québec suggested the possibility that the authorizing judge be counselled or accompanied by a jurist, by the targets’ lawyer even, when came time to decide, drawing a certain parallel with the searches and seizures

carried out in lawyers’ offices (Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada(Attorney General); R. v. Fink, 2002 SCC 61, [2002] 3 S.C.R. 209). This suggestion cannot be accepted. [118] As the Director of Public Prosecutions of Canada rightly pointed out, [translation] “that procedure cannot be transposed as is toelectronic surveillance” for two reasons.

First, there are exceptions to the audi alteram partem rule, it being understood that, in theordinary case, a judge would be “well equipped . . . to determine whether a record is subject to [solicitor-client] privilege”, without theassistance of counsel of the parties (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, para. 57.Second, electronic surveillance is, by its very nature, surreptitious, or else it is ineffective. This is by no means comparable to a searchthat the targeted person is generally aware of.

Therefore, it was an error for the trial judge to hold, in the Zampino judgment, that theparties must have the opportunity to submit their observations to the authorizing judge: [translation] [71] However, in order to protect the evidence in its entirety, and in the event that a situation arises in which a crucial debate arises inthe case, these solicitor-client conversations must be kept under seal, without anyone having access to them until the end of theproceedings, except after a hearing, parties' representations and a judgment authorizing disclosure. [119] This being so, communications with a lawyer cannot however be treated as if the presumption of confidentiality did not exist.

Asthe Supreme Court held in Foster Wheeler, supra: 42 […] It would be enough to have the party invoking professional secrecy establish that a general mandate had been given to a lawyerfor the purpose of obtaining a range of services generally expected of a lawyer in his or her professional capacity. At this stage, therewould be a presumption of fact, albeit a rebuttable one, to the effect that all communications between client and lawyer and theinformation they shared would be considered prima facie confidential in nature. […].

The opposing party would then have to give aspecific indication of the nature of the information sought and show that it is subject neither to the obligation of confidentiality nor toimmunity from disclosure, or that this is a case where the law authorizes disclosure notwithstanding professional secrecy. This methodwould have procedural consequences. […] This would prevent “fishing expeditions” in which lawyers, through the files they handleand reports they prepare for their clients, are used as a source of information for building cases against their own clients.

One would alsohope that every effort would first be made to obtain the information from available sources other than lawyers. A sound judicial policy,mindful of the social importance of lawyers’ professional secrecy and the need to protect it, should certainly not attempt to facilitate thissort of questioning, but rather restrain it as much as possible. [Emphasis added] [120] The protection clause which was held to be valid in Pasquin, supra, fully met such a standard with regard to communicationsmonitored on a delayed basis.

That standard is high and seeks to properly minimize the infringement of the targets’ rights, whileallowing police to monitor communications where appropriate, provided that there are reasonable grounds to believe that thepresumption of privilege can be rebutted. Obviously, clients cannot be required to first establish, as was the case in Foster Wheeler, “thata general mandate had been given to a lawyer” for the presumption to apply. The surreptitious aspect of wiretaps precludes such priordemonstration.

One must therefore adapt the rule and proceed as in Pasquin, i.e. consider that the communication is presumptivelyprivileged. Thus, in that case, the prosecution could have access to the contents of a pre-recorded and presumptively privilegedconversation, but to do so, it had to first satisfy a requirement that adequately reflected the existence of the presumption (which it did, bythe way). For the reasons noted above, the protection clause in the instant case does not meet such a requirement since it flouts thepresumption of confidentiality, which in turn rendered the authorization unreasonable and invalid.

The clause proposed by the Court inthe case at bar is more exacting, more protective of rights, all the while protecting the authorities’ legitimate right to monitor and use acommunication that is not privileged. [121] As for live monitoring, Pasquin does not answer the question, since there was no such monitoring in that case. Furthermore,whether or not there was evidence of live monitoring in the case at bar changes nothing.

The mere probability raised by the respondentsis enough to allow the Court to make a determination, especially since the clause provided for that type of monitoring. [122] In Pasquin, with regard to live monitoring, the recording would have had to be immediately interrupted as soon as it was observedthat a lawyer was a party to the communication, which is different than the clause here and that used by federal prosecutors in Quebec.While it is indisputable that the directive in Pasquin was respectful of the solicitor-client relation, this does not mean that the recordinghas to be interrupted in all cases where a lawyer takes

part in a live-monitored communication. The authorizing judge will decide as he orshe does for all the terms of the authorization. While it is true that, generally, the recording should be allowed to continue, the Courtcannot exclude specific cases that, according to the authorizing judge, would require that it be terminated.

In other words, while theCourt may require a minimum level of protection in all authorizations (for example, the existence of reasonable grounds to believe thatthe communication is not privileged before sending it to a judge), it cannot prevent an authorizing judge from being more demandingbefore authorizing a wiretap according to circumstances. [123] If recording had to be terminated for all communications involving a lawyer, live monitoring would become the rule. However,this has been rejected by the Supreme Court in R. v.

Taylor, (SCC), [1998] 1 S.C.R. 26, which substantially confirmedthe reasons of Huddart, J.A. in R. v. Taylor (1997), 86 B.C.A.C. 224. As the latter noted, this would result in lawyers enjoying protectionof their privacy exceeding that available to the ordinary citizen: [16] If this Court were to accept the

interpretation counsel seeks to have us put on

section 186, counsel agrees that live monitoring of allinterceptions would be required and that any conversation by anyone with a lawyer would be required to be terminated automaticallyupon the solicitor's phone being answered. One consequence of such a policy would be that solicitors would have protection of theirprivacy far exceeding that available to the ordinary citizen, whether or not there was any realistic possibility that the interception wouldinfringe solicitor/client privilege. They would have such protection not only at their offices but also in their homes and anywhere elsethey might answer a phone.

The respondent considers the incidental benefit to lawyers to be a reasonable price to pay to ensure thesanctity of solicitor/client communications.

[ 124 ] The directive in Pasquin literally created, for live monitoring, an irrebuttable presumption of privilege that became effective as soon as a lawyer was involved, which is both unnecessary and too strict, since it makes it impossible to rebut the presumption of privilege. Moreover, termination of the recording is not always necessary where, on the other hand, communications with a lawyer cannot be sent to a judge unless there are reasonable grounds to believe that they are not privileged.

Consequently, even for live monitoring, the clause does not necessarily have to provide that the recording must be interrupted, although the monitoring itself must always stop. [ 125 ] This latter requirement adequately protects targets’ rights, while not precluding the possibility that a conversation becomes one day accessible because it turned out to be non-privileged. In short, what is illegal is not the interception of any conversation involving a lawyer, but rather the monitoring of privileged communications by investigators.

It is inappropriate, therefore, to totally prevent legal interceptions and their subsequent monitoring, upon certain conditions, where a sealing mechanism exists and is already used for pre- recorded monitoring. [ 126 ] In the Court’s view, live monitoring does not necessarily require that the recording be immediately terminated, provided, however, that it be stipulated that the monitoring of the communication would have to cease and that the recording could not be sent to a judge, unless there are reasonable grounds to believe that it is not privileged.

That, indeed, would be a balanced approach that must now become the norm. [ 127 ] In this regard, in addition to Pasquin , supra , two other Canadian decisions considered clauses that contained such a requirement: R. v. Martin , 2010 NBCA 41 and R. v. Fox , 2022 SKKB 235 . It is therefore apparent that, in New Brunswick and Saskatchewan at least, such a clause better protects communications between lawyers and their clients than is the case in Quebec.

In other words, the Court’s decision here does not revolutionize the rules to be followed; at most, it adopts an already recognized practice and ensures that the solicitor-client relationship is adequately protected . [ 128 ] In sum, on the issue of the wiretap authorization, the trial judge made various errors of law 1) by asserting that the scope of the investigative methods and their intensity constituted an unreasonable and abusive invasion of the respondents’ privacy, whereas, they sought, at the most, to effectively address a complex case; 2) by requiring, for all intents and purposes, the application of s. 186(2) Cr.

C. to obtain the authorization, whereas the lawyers were unknown persons and not targets, and the application for an authorization was not in relation to the office or residence of a lawyer or to any other place usually used for solicitor-client consultations; 3) by asserting that the authorizing judge could not, under any circumstances, listen to the communications and that he was not able to split them in order to

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