2019 QCCQ 3011, 2019 QCCQ 3011

Estrella Llaneza c. R. 2019 QCCQ 3011 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-01-119960-158 DATE: May 10, 2019 ______________________________________________________________________ PRESIDING : THE HONOURABLE SERGE DÉLISLE, J.C.Q. ______________________________________________________________________ Rafael Eduardo ESTRELLA LLANEZA Applicant v. HER MAJESTY THE QUEEN Respondent and IRVING MITCHELL KALICHMAN (IMK) Impleaded party and Me Mathieu BOUCHARD Impleaded party and A. H. Impleaded party and AN. B.

Impleaded party ______________________________________________________________________ JUDGMENT ON AN APPLICATION SEEKING DISCLOSURE OF EVIDENCE ______________________________________________________________________ BACKGROUND [ 1 ] On November 2014, Me Mathieu Bouchard was working for IMK, a law firm of Montreal. He was hired by the alleged victims to help them to press charges against Applicant. Essentially, Me Bouchard gathered information from the alleged victims and he prepared their statements, statements that have been signed by the alleged victims and given to the police.

They were ultimately disclosed to Applicant. [ 2 ] Following October 29, 2018 judgment in which I dismissed Applicant’s O’Connor application, he filed, last December, a Stinchcombe application seeking all the documents or material connected to the present case that are not covered by the solicitor-client privilege and in possession or under control of the impleaded parties IMK and Me Mathieu Bouchard. [ 3 ] A hearing was held last March 14, 2019. After an examination, in camera , of the documents targeted by the application, I filed a Judicial

Summary of my conclusions on each of the documents and I heard IMK’s submissions, in huis clos, because I needed clarifications or observations on some of the documents. [ 4 ] At the end of the hearing, I concluded that the documents requested by Applicant were either covered by the privilege, manifestly irrelevant or already disclosed. [ 5 ] Regardless of my conclusion, Applicant asked me to order the disclosure of the documents because, according to him, the alleged victims implicitly waived their solicitor-client privilege regarding said material. [ 6 ] He submits the alleged victims knowingly and voluntarily disclosed some material or information to the police and that Me Bouchard did the same.

By their conduct, the alleged victims waived the solicitor-client privilege. He further submits that they cannot pick and choose what they wish to disclose and that fairness and consistency require that this partial waiver leads to full waiver. Indeed, the alleged victims cannot, according to Applicant, choose to disclose certain information and/or element of proof against him (sword) and at the same time shelter behind privileged information (shield). ANALYSIS [ 7 ] It is well established that only the holder of the privilege is entitled to waive it.

In the solicitor-client context, it means that it is the client alone who is entitled to waive the privilege or authorize his or her lawyer to reveal solicitor-client confidences. Waiver of such a fundamental right must be clear and done in complete awareness of the result. [1]

[ 8 ] An express waiver of privilege will occur where the holder of the privilege (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive it. [2] [ 9 ] Despite these requirements, an implied waiver of solicitor-client privilege may occur where fairness requires it and where some form of voluntary conduct by the privilege holder supports a finding of an implied or objective intention to waive it. [3] Therefore, a court will deem the privilege to be waived where a litigant voluntarily takes a position in litigation that is inconsistent with the maintenance of the privilege or makes legal assertions that “make it unfair for the holder of the privilege to retain the benefit of the privilege.” [4] [ 10 ] The cases referred to by Applicant in his application show exactly that.

They involve situations where a party to a litigation either excuses his conduct by relying on a legal advice of his solicitor [5] or attempts to use documents over which it has asserted privilege to explain its role in an investigation. [6] In fact, many cases which actually find implied waiver typically involve a party voluntarily making its own understanding of the law, or its reliance on legal advice it received, a material issue. [ 11 ] In the case at bar, the evidence doesn’t establish that the alleged victims, privilege holders, used the solicitor-client privilege as a sword to justify or explain a position or an action based on the solicitor-client privilege and as a shield to prevent Applicant from testing a justification or an explanation. [ 12 ] As for the argument that the alleged victims picked and chose what they wish to disclose and that fairness and consistency require that this partial waiver leads to full waiver, it must fail. [ 13 ] As already indicated when partial disclosure is raised in an implied waiver issue, it is linked to the use of some part of a document to explain, justify an action or position, or turning it to the advantage of the privilege holder. [ 14 ] McWilliams wrote the following to demonstrate that : “ R . v.

Stone [7] offers an illustrative example. In this case, during his opening statement, counsel for the defence released certain favourable information from an otherwise privileged psychiatric report. The Supreme Court ruled that “by disclosing what he wanted from the report in favour of the accused, defence counsel could not then concealed the balance of the report whose contents might contradict or put in context what had been disclosed”. As Scott C.J.M.put it in Bone v. Person , “[t]he party making the disclosure cannot pick and choose between the favourable and the unfavourable”. Similarly, in R. v.

Dunbar , Martin J.A. stated the general principle that “where the client on direct examination testifies to a privilege communication in part, this is a waiver as to the remainder of the privileged consultation or consultations on the same subject”. [8] [ 15 ] In the case at bar, A. H. testified at Applicant’s preliminary inquiry. He effectively, as raised by Applicant in support of his submission, agreed to look if he had a copy of the draft statement written by Me Bouchard prior and in support of his statement given to the police.

However, I can’t see how it could mean that he waived his privilege. [ 16 ] Indeed, except the fact that he agreed to look if he still had a copy of the draft statement, he didn’t reveal, release or refer to any content of it nor did he rely on it to explain his position or to justify an action. He didn’t disclose favourable part of it and concealed the rest.

Therefore, no implied waiver could be inferred from his conduct or from his answer. [ 17 ] Lastly, the disclosure, by Me Bouchard, of the alleged victims’ statements and certain emails does not constitute an implied waiver of their solicitor-client privilege. The former had to be disclosed and, hopefully was, according to the common law disclosure obligations of the Crown. As for the latter, there is no evidence that some or all of the emails were used, as indicated above, to explain, justify an action or position, or to turn it to the advantage of the privilege holders.

FOR THESE REASONS , the Court DISMISSES the Application seeking disclosure of evidence . __________________________________ SERGE DÉLISLE, J.C.Q. Me Isabella Teolis and Katia Zazzara For Applicant Me Olivier Charbonneau For Her Majesty the Queen Me François Goyer For IMK and Me Mathieu Bouchard Andrew Hops and Anthony Barsoumian Absent and not represented

Date of hearing: March 14, 2019