R. v. N.N.H., 2021 BCPC 127

Citation: R. v. N.N.H. 2021 BCPC 127 Date: 20210511 File No: [Omitted for publication] Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. N.N.H. Restriction on Publication: A publication ban has been mandatorily imposed under s. 486(4.1) of the Criminal Code restricting publication, broadcasting or transmission in any way of evidence that could identify the victim or witness. This publication ban applies indefinitely unless otherwise ordered. RULING RE WAIVER OF SOLICITOR-CLIENT PRIVILEGE OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: L. Sakkau Counsel for the Defendant: T.

Zipp Place of Hearing: Prince George , B.C. Date of Hearing: May 10, 2021 Date of Judgment: May 11, 2021 [ 1 ] This is my ruling on whether N.N.H. has waived solicitor-client privilege concerning his previous legal counsel for purposes of

his application to withdraw the guilty plea entered on June 19, 2020, to count 1 of Prince George Court Information [omitted for publication]. Background [ 2 ] On December 26, 2019, N.N.H. was charged with two counts of sexual assault alleged to have occurred on December 24 and 25, 2019, in relation to Prince George Court Information [omitted for publication]. N.N.H. retained E. Keith Jones to represent him (“Previous Counsel”).

Previous Counsel had also been N.N.H.’s legal counsel in relation to an earlier matter, Prince George Court Information [omitted for publication]. [ 3 ] At the beginning of N.N.H.’s telephone court appearance on June 19, 2020, Tyler Bauman, Crown Counsel with the BC Prosecution Service, applied to amend count 1 of Prince George Court Information [omitted for publication]. Essentially, Mr. Bauman asked to amalgamate counts 1 and 2 into a single count. Previous Counsel consented to the amendment of count 1 on N.N.H.’s behalf.

The presiding judge, at the time, then allowed the amendment. [ 4 ] The amended count 1 in Prince George Court Information [omitted for publication] states: N.N.H., between the dates of December 24, 2019 and December 25, 2019, inclusive, at or near Prince George, in the Province of British Columbia, did sexually assault C.P., contrary to

Section 271 of the Criminal Code . [ 5 ] Previous Counsel then told the Court that his “…instructions are to waive reading of the Information and the election, to elect trial by Provincial Court judge. To waive the further reading of the amended Count 1, and ask Your Honour to record a plea of guilty to that one Count.” [ 6 ] The presiding judge did not seize himself of the matter. The Court adjourned N.N.H. to September 16, 2020, for a one-and-a half hour sentencing hearing. The Court also ordered the preparation of two reports at the request of counsel: (

i) a pre-sentence report with Gladue component and (ii) a psychiatric report with risk assessment. [ 7 ] The matter did not proceed to sentencing on September 16, 2020. Rather, the matter was adjourned to September 25, 2020. On September 25, 2020, the matter was adjourned to October 15, 2020. [ 8 ] On October 15, 2020, Mr. Zipp appeared in court as N.N.H.’s new lawyer. Six weeks later, on November 30, 2020, N.N.H. filed an Application to Strike Guilty Plea in relation to the June 19, 2020 guilty plea. N.N.H. also filed a two-page Affidavit in support of his Application to Strike Guilty Plea .

Of note: N.N.H. did not allege ineffective assistance of counsel by Previous Counsel in his Application to Strike Guilty Plea , although he did reference Previous Counsel, some of the discussions he had with Previous Counsel, and some of the legal advice he received from Previous Counsel, in his Affidavit and in the “Basis for Application – Overview”

section of his Application to Strike Guilty Plea . [ 9 ] N.N.H.’s Affidavit is dated November 30, 2020, and states: I, N.N.H. make oath and say as follows: 1. I am the applicant in this matter and as such have personal knowledge of the matters hereinafter deposed to save and except where the same are stated to be on information and belief and as to these latter matters verily believe the same to be true. 2. What is said in this Affidavit it is from me but my present lawyer, Tony Zipp, has put it into better words. 3.

I have several disabilities including Fetal Alcohol Syndrome, Obsessive Compulsive Disorder and Attention Deficit Hyperactivity Disorder. I am on a disability pension. My work has all been manual labour. I have been described as someone who is easily led and I agree with that. 4. My father went to residential school and shortly after birth I was taken by the Ministry of Children and Family Development. Since 4 I was permanently in foster care until I was adopted at 12 and moved to Vancouver Island where I remained until around 2017. 5. In a previous sentence I was sent to Ford Mountain.

I could not do the group programs so they had me do one on one sessions. 6. My previous lawyer was Mr. Jones. He acted for me in the previous matter. He then insisted I plead guilty and I followed his advice. I wish I had taken that to trial. 7. When Mr. Jones talked to me about this case, he told me there was a deal worked out which was very good for me. He again wanted me to plead guilty. I did not want to do that. I wanted to have a trial. He told me to the effect of you can have a trial but I won’t be there with you. I felt boxed in and that I had to do what he told me.

I was not aware I could get another lawyer because he was the only lawyer I had dealt with and he was assigned to me. 8. I have listened to the recording of what happened when I pled guilty July 19, 2020. I appeared by telephone. No one explained to me that when I pled guilty: a. That I had the right to have a trial which could be in another level of court such as the Supreme Court; b. I have already said that Mr. Jones told me I could have a trial but that he wouldn’t be there to help me with it. I felt I had no choice because I would be left to do a trial on my own; c.

That the joint submission would mean that I would go to a Federal Penitentiary; d. I was not then aware of the differences between Provincial Jails and Federal penitentiaries including the violence in Federal

Penitentiaries; e. That the joint submission would mean that I would be sent to a Penitentiary in the lower mainland, Victoria or somewhere else in Canada. 9. I want to have a trial as I do not believe I am guilty of this. 10. I understand that if my plea is set aside I will have to face at least one charge of sexual assault. My lawyer, Tony Zipp, has explained to me that I will face a trial and the Judge may not believe me.

I understand that but at least then I will have a chance to tell my side of the story. [ 10 ] As I set out above, N.N.H.’s Application to Strike Guilty Plea does not allege ineffective assistance of counsel. Rather, as per the Supreme Court of Canada decision in R. v. Wong , 2018 SCC 25 , N.N.H. argues that he should be allowed to withdraw his guilty plea because he was unaware on June 19, 2020, of the criminal consequences of the guilty plea and the legally relevant collateral consequences. Specifically: 1. He suffers from several disorders and is not a person of normal intellectual capacity.

He has been described as a person who is easily led; 2. He wanted to have a trial; 3. Previous Counsel told him that he (Previous Counsel) would not assist him at trial; 4. He was unaware that he could get a different lawyer to represent him at trial; 5. Being ill-equipped to represent himself at trial, he felt that he had no choice but to accept the plea offer and plead guilty; 6. No s. 715.23(1) Criminal Code inquiry was undertaken of him or Previous Counsel by the presiding judge concerning his appearing in court on June 19, 2020, and entering his guilty plea by telephone; 7.

No s. 606(1.1) Criminal Code plea inquiry was undertaken personally with him by the presiding judge before the guilty plea was entered; 8. He was unaware on June 19, 2020, that the proposed plea offer would include his being sentenced to a Federal penitentiary, as opposed to a Provincial correctional center, thus requiring him to serve his sentence away from Prince George; 9. The incarceration in a Federal penitentiary for someone with a limited intellectual capacity is a catastrophic consequence; 10. He did not see, review or agree to the Agreed Statement of Facts that Previous Counsel signed; 11.

He does not believe that he is guilty of the offence. [ 11 ] On January 20, 2021, the BC Prosecution Service filed a Crown Application to a Judge .

The Crown Application to a Judge sought an order or declaration of the Court requiring N.N.H. to follow the British Columbia Court of Appeal Practice Directive (Criminal), Title: Ineffective Assistance of Trial Counsel (Issued: 12 November 2013). [ 12 ] On January 26, 2021, N.N.H. filed H.’s Response to Crown Application Filed January 20, 2021 , which reiterated N.N.H.’s position that he is not advancing the argument of ineffective assistance by counsel, although there is argument in H.’s Response to Crown Application Filed January 20, 2021 , referencing the solicitor-client relationship between N.N.H. and Previous Counsel. [ 13 ] At a pre-trial conference on March 26, 2021, I dismissed the Crown Application to a Judge on the basis that I was unaware of, and counsel for the BC Prosecution Service was unable to provide the Court with, authority that permits me as a trial court judge to order, or otherwise direct, N.N.H. to waive his solicitor-client privilege and follow the Court of Appeal Practice Directive (Criminal), Title: Ineffective Assistance of Trial Counsel (Issued: 12 November 2013).

I did not consider or make a ruling as to whether N.N.H., in bringing his November 30, 2020, Application to Strike Guilty Plea and swearing the supporting Affidavit had, in law, waived his solicitor-client privilege with regard to Previous Counsel , in whole or part, by making certain arguments or relying on certain facts in his Affidavit .

Issue to be Determined [ 14 ] In Court on April 9, 2021, counsel raised for the first time the question as to whether N.N.H. had, in an expressed or implied way, waived his solicitor-client privilege with regard to Previous Counsel, in whole or in part, by making certain arguments or relying on certain facts in his November 30, 2020, Application to Strike Guilty Plea , the supporting Affidavit , and H.’s Response to Crown Application Filed January 20, 2021 . [ 15 ] Given the unique way the Application to Strike Guilty Plea had been framed by N.N.H., combined with the BC Prosecution Service’s unsuccessful Crown Application to a Judge seeking to have me order or direct N.N.H. to waive his solicitor-client privilege and follow the Court of Appeal’s Ineffective Assistance of Trial Counsel (Issued: 12 November 2013) Practice Directive, I determined that the issue of whether N.N.H. had expressly or implicitly waived his solicitor-client privilege, in whole or in part, with regard to Previous Counsel, required an answer. [ 16 ] Accordingly, as part of my inherent duty to control the proceedings, I asked counsel to make submissions to the court as to whether N.N.H. had in an expressed or implied way waived his solicitor-client privilege with regard to Previous Counsel, in whole or in part, by making certain arguments or relying on certain facts in his November 30, 2020, Application to Strike Guilty Plea , the supporting Affidavit , and H.’s Response to Crown Application Filed January 20, 2021 .

[ 17 ] The factual points which give rise to the analysis are: 1. Whether Previous Counsel said, or indicated, that while N.N.H. could have a trial, Previous Counsel would not assist N.N.H. with that trial and consequently N.N.H. felt he had no choice but to plead guilty; 2. Whether Previous Counsel failed to advise or discuss with N.N.H. that the sentence negotiated: I. Would be served at a federal penitentiary rather than a provincial correctional facility; II. Would involve the geographical relocation of N.N.H. from Prince George to another location in BC or Canada to serve the negotiated sentence; III.

Could result in N.N.H. experiencing considerably different conditions in a federal penitentiary compared to the provincial correctional facility that N.N.H. served his previous sentence at; 3. Whether N.N.H. saw or discussed the Agreed Statement of Facts with Previous Counsel; 4. In relation to the earlier Prince George Court Information [omitted for publication], whether Previous Counsel insisted that N.N.H. plead guilty and N.N.H. followed Previous Counsel’s advice, but wished that he had taken the matter to trial. [ 18 ] I am in agreement with Mr.

Zipp that the topics set out in paragraph 17 above meet the criteria for solicitor-client privilege and, as such, benefit from solicitor-client privilege unless N.N.H. has waived the privilege. As per British Columbia (Securities Commission) v. C.W.M. , 2003 BCCA 244 at paragraph 46 : [46] It is precisely because of the distinction between confidential information and the smaller subset of communications that are subject to solicitor-client privilege that judicial determination is required. The court must ensure that the communications in question do in fact meet the criteria for solicitor-client privilege.

Those criteria were summarized at para. 42 of Macaulay J.'s first Reasons and were not challenged by counsel: 1. there must be a communication, whether oral or written; 2. the communication must be of a confidential character; 3. the communication must be between a client (or his agent) and a legal advisor; and 4. the communication must be directly related to the seeking, formulating, or giving of legal advice. [ 19 ] In N.N.H.’s case, each of the four topics set out in paragraph 17 above involved: 1. A communication between N.N.H. and Previous Counsel; 2. Communications of a confidential character; 3.

Communications between a client (N.N.H.) and a legal advisor (Previous Counsel); and 4. Communications directly related to the seeking, formulating, or giving of legal advice. That is: I. legal advice concerning what plea N.N.H. was to enter, II. what sentence N.N.H. may expect, and III. what facts N.N.H. was expected to agree to as part of the proposed Agreed Statement of Facts in support of the guilty plea. [ 20 ] On April 27, 2021, Mr.

Zipp provided the court with his Defence Materials for Waiver of Solicitor-Client Privilege and Use of Agreed Statement of Facts , which includes written submissions and eight cases in support of his submissions. I have read and considered all eight cases. Mr. Zipp takes the position that: 1. N.N.H. has not, in whole or part, waived solicitor-client privilege with regard to Previous Counsel; and 2.

Even if the Court finds that N.N.H. has expressly or implicitly waived solicitor-client privilege, in whole or in part, with regard to Previous Counsel, this is not an appropriate case to order Previous Counsel to provide evidence on the facts alleged and issues raised by N.N.H.. [ 21 ] On May 6, 2021, Ms. Sukkau filed the BC Prosecution Service’s Crown Materials for Implied Waiver of Solicitor-Client Privilege , which includes written submissions and three cases in support of her submissions.

Somewhat surprisingly, the BC Prosecution Service has taken “…no position on whether there is an implied waiver of solicitor-client privilege.” I have read and considered all three cases provided by Ms. Sukkau. [ 22 ] On May 10, 2021, Mr. Zipp filed Reply of H. Regarding Implied Waiver of Solicitor-Client Privilege , a rebuttal to the BC Prosecution Service’s Crown Materials for Implied Waiver of Solicitor-Client Privilege . In his rebuttal, Mr. Zipp takes the position that: 1.

Since the BC Prosecution Service has taken “no position” about whether there has been an expressed or implied waiver of solicitor-client privilege, in whole or in part, by N.N.H., the result is that no party to the litigation is claiming that N.N.H. waived privilege;

2. Recognizing the principle of judicial economy, given that the BC Prosecution Service has taken “no position”, that should bethe end of the issue of whether N.N.H. has waived his solicitor-client privilege with Previous Counsel; 3. Furthermore, in dismissing the issue of whether N.N.H. has waived solicitor-client privilege with Previous Counsel, the Courtshould now resolve the Application to Strike Guilty Plea by allowing N.N.H. to withdraw his guilty plea, as there is nothing before thecourt to contradict the sworn Affidavit of N.N.H. [23] The hearing took place on the afternoon of May 10, 2021.

Implied Waiver –The Legal Context [24] An important exception to solicitor-client privilege arises when a person waives the privilege in an expressed or implied way.Implied waiver of one’s solicitor-client privilege can occur by making certain arguments or relying on certain facts in an Affidavit orduring testimony.

It is N.N.H., as the client in the present case, who owns the privilege with regard to his legal relationship withPrevious Counsel. [25] As a general proposition, the test to establish that a person has waived the protection of the solicitor-client privilege regarding heror his previous relationship with legal counsel is strict. The person must have: 1. Known of the existence of the privilege; and 2. Demonstrated a voluntary and clear intent to forgo the privilege. [26] In Solosky v. The Queen, (SCC), at page 837, Justice Dickson explained that to establish solicitor-client privilegethere must be “(

i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which isintended to be confidential by the parties.” [27] In S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., (BC SC), [1983] 4 WWR 762 (BCSC) atparagraph 6, Justice McLachlin, as she then was, stated: [6] Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege: (1) knows of the existence of theprivilege; and (2) voluntarily evinces an intention to waive that privilege.

However, waiver may also occur in the absence of an intentionto waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication, will be held to be waiver asto the entire communication. … [28] In a case remarkably similar to N.N.H.’s case, R. v. Read, (BC CA), [1993] 36 BCAC 64, the Crown appliedfor directions on the issue whether the appellant had waived solicitor -- client privilege by criticizing the conduct of his trial counsel inhis factum and in his Affidavit that he had filed with the court.

In a very short decision, the British Columbia Court of Appeal found thatsolicitor -- privilege had been waived. [29] Eighteen years ago, Justice Major in R. v. McClure, 2001 SCC 14, cautioned: [35] However, solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.

Assuch, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis. [30] Three years after deciding McClure, Justice Major had occasion to further expand on the waiver of solicitor-client privilege atparagraphs 14 to 18 in Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31: [14] Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer.

Clients must feel free andprotected to be frank and candid with their lawyers with respect to their affairs so that the legal system, as we have recognized it, mayproperly function: see Smith v. Jones, (SCC), [1999] 1 S.C.R. 455, at para. 46. [15] Dickson J. outlined the required criteria to establish solicitor-client privilege in Solosky v. The Queen, (SCC), [1980]1 S.C.R. 821, at p. 837, as: “(

i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and(iii) which is intended to be confidential by the parties”. Though at one time restricted to communications exchanged in the course oflitigation, the privilege has been extended to cover any consultation for legal advice, whether litigious or not: see Solosky, at p. 834. [16] Generally, solicitor-client privilege will apply as long as the communication falls within the usual and ordinary scope of theprofessional relationship. The privilege, once established, is considerably broad and all-encompassing.

In Descôteaux v. Mierzwinski, (SCC), [1982] 1 S.C.R. 860, the scope of the privilege was described, at p. 893, as attaching “to all communicationsmade within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, andconsequently even before the formal retainer is established”. The scope of the privilege does not extend to communications: (1) wherelegal advice is not sought or offered; (2) where it is not intended to be confidential; or (3) that have the purpose of furthering unlawfulconduct: see Solosky, supra, at p. 835. [17] As stated in R. v.

McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at para. 2: Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. This privilege is fundamental to thejustice system in Canada. The law is a complex web of interests, relationships and rules. The integrity of the administration of justicedepends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of thisprivilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fullyrepresented.

The privilege is jealously guarded and should only be set aside in the most unusual circumstances, such as a genuine risk of wrongful

conviction. [18] In Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61, this Court confirmed that theprivilege must be nearly absolute and that exceptions to it will be rare. Speaking for the Court on this point, Arbour J. reiterated what wasstated in McClure: . . . solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.

As such, it willonly yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis. [Emphasis inoriginal.] (Arbour J. in Lavallee, supra, at para. 36, citing Major J. in McClure, at para. 35.) [31] In R. v. Fast, 2009 BCSC 1671, a

summary conviction appeal case, the appellant had used notes a few days before testifying attrial to refresh his memory. Crown counsel submitted that he was entitled to see the notes and to cross-examine the appellant on them.Defence counsel opposed the Crown's request, arguing that solicitor-client privilege covered the notes. The trial judge agreed with theCrown and made the order. On appeal, while ultimately ordering a new trial, Justice Brown found that in certain rare situations, anaccused could implicitly waive privilege through their conduct: [54] An accused witness can implicitly waive privilege through their conduct, in certain rare situations, either by (

i) putting the legaladvice they received in issue: R. v. Hobbs, 2009 NSCA 90, R. v. Bennett, 2002 NSPC 26, 208 N.S.R. (2d) 32, R. v. Charbonneau (1992), (QC CA), 74 C.C.C. (3d) 49 (Que. C.A.), leave to appeal to S.C.C. refused, 23027 (May 28, 1992); (ii) by relying ona privileged report in advancing his or her defence: R. v. Stone, (SCC), [1999] 2 S.C.R. 290, [1999] S.C.J. No. 27(S.C.C.); or (iii) by testifying about privileged communications during direct examination: R. v. Dunbar (1982), (ONCA), 68 C.C.C. (2d) 13, 138 D.L.R. (3d) 221 (Ont.

C.A.). [55] The common rationale in this line of cases is that an accused cannot put privileged communications in issue and then attempt toprevent their disclosure by claiming that the communications are privileged. By relying on the privileged communications in some way,the accused has demonstrated an intention to waive that privilege to some extent.

Trial fairness and disposition of the matter on its meritsthen entitle the opposing party to see the privileged document or communications the witness has put in issue in order to assess thevalidity of the witness's reliance on it through cross-examination. … [59] … In my respectful view, the question of whether an accused testifying at trial has waived privilege is one that lies within the trialjudge's discretion, to be exercised on a principled basis as discussed in these reasons, and as also discussed in the several cases dealingwith implied waiver. … [61] The facts and circumstances that come forward in criminal cases are unpredictable and varied.

I see the flexibility of trial judgesexercising their discretion on a principled basis as preferable to a firm rule, with it imposing the same answer in every circumstance.Such rigidity conceivably could lead to an unfair trial in a particular case, and result in greater harm to the justice system than would bethe case if the judge were to allow a breach of the privilege. Ultimately, if a trial judge errs, correction is possible.

A fixed evidentiaryrule would offer certainty, but no reasons to justify the result. [62] A classic "probative value versus prejudicial effect" analysis that encompasses giving full weight to the special status of solicitor-client privilege provides a good foundation and starting point for the exercise of the judge's discretion. When considering prejudice to theaccused, the trial judge should consider what portions of the document to redact in order to minimize prejudice to the accused, and thencomplete the probative value versus prejudice effect analysis based on the redacted document.

If after undertaking such an analysis thetrial judge finds that the probative value of a cross-examination on the refresh document outweighs the prejudice to the accused, thejudge should then stand back and weigh into the final analysis the protected status of solicitor-client privilege.

That is, the judge shoulddetermine whether the probative value of a cross-examination has overcome the important policy objective of protecting the status ofsolicitor-client status or whether trial fairness and a disposition on the merits is more compelling in the circumstances than the damagethat would occur from permitting a breach of solicitor-client privilege. [32] In between the appeal hearing in Fast and Justice Brown’s decision, the Nova Scotia Court of Appeal had occasion, in R. v.Hobbs, 2009 NSCA 90, to consider a situation not unlike N.N.H.’s situation in the present case: [14] A client who puts in issue the advice received from his or her solicitor risks being found to have waived the privilege with respect tothose communications. … [21] It seems clear to us that Mr.

Hobbs has done more than simply criticize Mr. Bailey's conduct. He has gone so far as to introduce intoevidence the substance of otherwise privileged communications concerning the conduct of his defence as the basis upon which he seeksa finding of ineffective counsel and an overturning of his conviction on appeal. In doing so we find that he has waived the protection ofhis solicitor-client privilege. [22] Having found that Mr. Hobbs has waived solicitor-client privilege with respect to Mr. Bailey's legal representation, we wish toemphasize that not all communications between them must necessarily be disclosed.

The waiver of privilege does not entitle the Crownto know the substance of all communications between Mr. Hobbs and Mr. Bailey. We leave it to Mr. Bailey and his counsel Mr. Woodto determine the nature and extent of disclosure bearing in mind Mr. Bailey's ethical obligations to Mr. Hobbs as a former client. [33] Three years later, Justice Smart in R. v. Sipes, 2012 BCSC 635, further considered the circumstances under which solicitor-client

privilege is waived in the criminal law context: [1] The question before me is whether a witness has waived solicitor-client privilege over communications with his former counsel.Mr. Podolski and Mr. Brownell take the position that he has. Mr. Claus, counsel for Mr. Podolski, argues that privilege has been waivedin relation to communications between the witness and his counsel concerning: (

i) the witness's involvement in the murders; (ii) the law;and (iii) negotiations with the Crown. Mr. Hickford, counsel for Mr. Brownell, argues that privilege has been waived over allcommunications and that the witness's lawyer, at the relevant time, should disclose the contents of his file other than billing records. [2] I will provide some background to put the question into context, briefly review the submissions of counsel and the applicable law,and then provide my analysis for my decision. … IV. ANALYSIS [17] The question before me concerns the circumstances under which solicitor-client privilege is waived.

The authors of The Law ofPrivilege in Canada (Robert W. Hubbard, Susan Magotiaux and Suzanne M. Duncan, The Law of Privilege in Canada, looseleaf(Toronto: Canada Law Book, 2006)) provide a succinct and helpful

summary of the applicable legal principles that is consistent withMs. Bradley's review of the applicable law. [18] The authors explain the scope of solicitor-client privilege at paragraph 11.10: Solicitor-client privilege protects the direct communications - both oral and documentary - prepared by the lawyer or client and flowingbetween them, in connection with the provision of legal advice.

The communication must be intended to be made in confidence, in thecourse of seeking or providing legal advice, and must be advice based upon the professional's expertise in law. [19] They state that: • while the privilege is not absolute, it is as close to absolute as possible in order to ensure public confidence and retainrelevance; • where there is a conflict over whether a communication is privileged, it should be resolved in favour of protecting theprivilege; and • privilege can be waived voluntarily or implicitly and implicit waiver can be by inadvertent disclosure or by reliance onprivileged communications as a defence by pleading or otherwise in the action. [20] The authors explain waiver at paragraph 11.220.10: Specifically, waiver of solicitor-client privilege "[i]s ordinarily established where it is shown that the possessor of the privilege (1)knows of the existence of the privilege, and (2) voluntarily evinces an intention to waive that privilege".

Waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Fairness only applies wherethe information sought to be disclosed is relevant to the issues in the proceeding. Implicit or involuntary waiver can be made by disclosing inadvertently the privileged communications in the delivery of writtenproductions, or by testifying about them on discovery or cross-examination. Implicit waiver can also be made by reliance on privilegedcommunications, in a pleading or otherwise.

For example, if a party relies on legal advice sought and received as evidence of good faithor lack of bad faith or acting in the public interest, then privilege over that legal advice will generally be waived. [Emphasis in original.] See also R. v. Youvarajah, 2011 ONCA 654, at paras. 146-153. [21] While examples of implicit waiver arise more often in the context of non-criminal proceedings, there are numerous criminal caseswhere waiver has arisen. The cases suggest that the waiver is restricted to the particular subject matter and what is necessary to fairlyresolve the issue before the court.

For example, in Campbell the Court found the RCMP had waived privilege over the legal advice aparticular officer had exposed and relied upon, but limited the scope of the waiver to the specific advice relied upon. The Court said atpara. 74: The relevant legal advice received by Cpl. Reynolds should be disclosed to the appellants. This is not an "open file" order in respect ofthe RCMP's solicitor and client communications. The only legal advice that has to be disclosed is the specific advice relating to thefollowing matters identified by Cpl. Reynolds.... See also R. v.

Li, (B.C.C.A). [22] Limiting waiver to the particular subject matter over which privilege has waived is consistent with the protection our law accordssolicitor-client privilege as stated in cases such as Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 ,[2002] 3 S.C.R. 209, at para. 37, and as summarized in The Law of Privilege in Canada. [23] I have reviewed the passages from the witness's police statements to which I have been referred. I have also had the benefit oflistening to and watching the witness give evidence and am of the view that he is an unsophisticated individual.

While the policestatements demonstrate he had some understanding that his communications with his lawyer were confidential and was told by the policethey were protected by solicitor-client privilege, I am not satisfied he understood that in disclosing some of his discussions with hiscounsel to the police he was waiving solicitor-client privilege. In other words, I am not satisfied he made a clear and informed decisionto waive privilege.

[24] However, I must also examine whether he has implicitly waived privilege for reasons relating to trial fairness. In assessing trialfairness, it is significant that the witness has not sought to rely on whatever legal advice he received to explain or justify his evidence tothe jury or statements he made to the police. This distinguishes the circumstances here from those in Campbell relied on by the accused.As the witness has not linked his understanding of the law to any legal advice received, no unfairness is created by not allowing cross-examination on the privileged communications.

For this reason, I am not satisfied that there should be an implied waiver of any of thecommunications. [25] In the event I am incorrect in concluding that there has been no waiver, I find there is no prejudice to the accused by not allowingcross-examination on the privileged communications.

At its highest, the probative value of the proposed cross-examination to an issue attrial is minimal. [26] The witness's effort to negotiate a "deal" with the Crown, as well as his evolving acknowledgements concerning his participation inthe offences under investigation are clear from numerous other passages in his statement that do not engage any concern over privilege. [27] I note that Mr.

Nathanson was able, without any reference to privileged communications, to cross-examine the witness on his manypolice statements to demonstrate: his efforts to negotiate the best deal he could with the Crown; his efforts to minimize his participation[Content Redacted] to manipulate the police and to use the police to help him also manipulate the Crown; and what he told the police[Content Redacted] and how that changes over time.

The witness acknowledged that from the time he was arrested he was trying tonegotiate the best deal he could and [Content Redacted]. [28] In my view, what the accused are essentially attempting to accomplish by cross-examining the witness on his privilegedcommunications is to engage in a fishing expedition in the hope of finding something of value. [29] While the balancing of probative value and prejudice is different for evidence tendered by the defence, I am satisfied that theprobative value of the proposed cross-examination is substantially outweighed by its prejudicial effect.

To permit cross-examinationwould inevitably open the door to disclosure of other privileged communications, may necessitate the witness's lawyer being called totestify and producing his file, and would likely be distracting to the jury and delay an already lengthy trial. It also runs the risk ofdisclosing evidence of other murders allegedly committed by one or more of the accused that are not before this jury. [30] For all of these reasons, Mr. Podolski and Mr.

Brownell are prohibited from cross-examining the witness concerning his privilegedcommunications with his lawyer, other than those over which has provided a limited waiver. This includes statements by the witness tothe police concerning communications between him and his lawyer. They may, of course, apply to have my decision reconsidered iffurther cross-examination warrants such an application. [34] In Creative Career Systems Inc. v.

Ontario, 2012 ONSC 649 , 27 CPC (7th) 172, Justice Perell stated: [27] There is, however, a subtle and profound point here about when a party must answer questions about the occurrence of legal advicein the factual narrative of a case. The subtle and profound point is that there is no waiver of the privilege associated with lawyer andclient communications from the mere fact that during the events giving rise to the claim or defence, the party received legal advice, evenif the party relied on the legal advice during the events giving rise to the claim or defence.

For a party to have to disclose the legal advicemore is required. [28] In Doman Forest Products Ltd. v. GMAC Commercial Credit Corp., 2004 BCCA 512, a case about whether privilege associatedwith legal advice had been waived, Justice Smith points out at para. 28 that it is not enough to constitute waiver that a pleading puts aparty’s state of mind in issue and that its state of mind might have been influenced by legal advice, there must be the further element thatthe state of mind involves the party understanding its legal position in a way that is material to the lawsuit.

In other words, the presenceor absence of legal advice itself must be material to the claims or defence to the lawsuit. The materiality of the legal advice to the claimsor defences in the law suit makes questions about it relevant. [29] But the materiality of the legal advice, while necessary to make questions about it relevant, is still not sufficient to justify thecompelled disclosure of the legal advice.

To justify a party being required to answer questions about the content of privilegedcommunications, the party must utilize the presence or absence of legal advice as a material element of his or her claim or defence. Thewaiver of the privilege occurs when the party uses the receipt of legal advice as a material fact in his or her claim or defence. While thewaiver is a deemed waiver, it requires the intentional act that the party makes legal advice an aspect of his or her case. In Simcoff v.Simcoff, 2009 MBCA 80, Justice Steel made the point neatly at para. 27, where he stated: 27.

However, a mere reference to the receipt of legal advice does not constitute waiver. Waiver must involve something more.

It requiresnot simply disclosing that legal advice was obtained, but pleading reliance on that advice for the resolution of an issue. [30] Thus, a deemed waiver and an obligation to disclose a privileged communication requires two elements; namely: (1) the presence orabsence of legal advice is relevant to the existence or non-existence of a claim or defence; which is to say that the presence or absence oflegal advice is material to the lawsuit; and (2) the party who received the legal advice must make the receipt of it an issue in the claim ordefence. [35] In Brown v.

Clark Wilson LLP, 2014 BCCA 185, Justice Newbury set out at paragraphs 26 to 30 that for waiver to be implied,the privilege-holder must have raised voluntarily and for his or her own benefit the issue of whether and how he or she was influenced bythe solicitor’s advice. In addition, that the privilege-holder’s state of mind must be material to an issue in the litigation: [26] We are concerned here with implied waiver rather than express waiver.

In Halsbury’s Laws of Canada (1st ed, 2010), ProfessorHamish Stewart describes situations in which waiver will be implied as those in which the client “voluntarily takes a position in litigationthat is inconsistent with the maintenance of the privilege”. The author gives a number of examples of implied waiver – where the clientasserts reliance on legal advice or misconduct or incompetence of counsel; denies having given instructions that the solicitor has actedon; or attempts to explain errors in affidavits or pleadings as the fault of his or her solicitor. (See Express Waiver, HEV-178.) On this

definition, an implied waiver can be found in the absence of disclosure and on the basis of certain legal assertions which make it unfairfor the holder of the privilege to retain the benefit of the privilege. The first example of implied waiver described in Halsbury’s isobviously the most arguable in this case. [27] The leading decision in this province appears to be Rogers et al. v. Bank of Montreal (1985) (BCCA), 62 B.C.L.R.387 (C.A.). In that case, the defendant bank had put one of its borrowers (“Abacus”) into receivership pursuant to a debenture granted byAbacus.

The principals of Abacus then sued the bank and others on the basis that it had been denied a reasonable opportunity to meet thedemand notice. The bank pleaded that it had relied on legal advice given to it by the receiver to the effect that it was not necessary toallow Abacus time for payment before appointing a receiver. The Court observed: The issue in this case is not the knowledge of the bank. The issue is whether the bank was induced to take certain steps in reliance uponthe advice from the receiver on legal matters.

To take one instance, the receiver, according to the bank, advised the bank that it was notnecessary to allow Abacus time for payment before the appointment of the receiver. A significant legal decision had been rendered somemonths earlier to the opposite of that advice.

The extent to which the bank had been advised about that decision, not merely of its result,is important in the resolution of the issue whether the bank relied upon the advice of the receiver. [At 392.] [28] The Court found no helpful Canadian authorities on point, but adopted the reasoning of the District Court of Columbia in U.S. v.Exxon Corp., 94 F.R.D. 246 (1981). The Court in that case had said at 248: Most courts considering the matter have concluded that a party waives the protection of the attorney-client privilege when he voluntarilyinjects into the suit the question of his state of mind.

For example, in Anderson v. Nixon, 444 F. Supp 1195 … Judge Gesell stated that asa general principle ‘a client waives his attorney-client privilege when he brings suit or raises an affirmative defence that makes his intentand knowledge of the law relevant’. and at 249: Exxon’s affirmative defenses necessarily revolve around whether Exxon, did, in fact, primarily or solely rely upon a particular DOEregulation or communication when the company made its pricing decisions.

Thus, the only way to assess the validity of Exxon’saffirmative defenses, voluntarily injected into this dispute, is to investigate attorney-client communications where Exxon’s

interpretationof various DOE policies and directives was established and where Exxon expressed its intentions regarding compliance with thosepolicies and directives. There is no other reasonable way for a plaintiff to explore Exxon’s corporate state of mind, a consideration nowcentral to this suit. [Quoted in Rogers at 392-3; emphasis added] In Rogers itself the Court, per Hutcheon J.A., found that the defence relied upon by the bank necessarily involved an inquiry into its“corporate state of mind”.

The Court affirmed the lower court’s finding that the bank should be taken to have waived privilege “withrespect to its legal advice.” [29] Rogers was cited with approval by the Supreme Court of Canada in R. v. Campbell, (SCC), [1999] 1 SCR 565 (also reported sub nom. R. v. Shirose (1999) 24 C.R. (5th) 365). After quoting the foregoing passages from Rogers and Exxon, Binnie J.observed for the Court in Campbell: ...

It appears the court in Rogers found that any privilege with respect to correspondence with the bank’s solicitors had been waived asnecessarily inconsistent with its pleading of reliance, even though the bank itself had not referred to, much less relied upon, the existenceof advice from its own solicitors. The present case presents a stronger argument for waiver than Rogers. ... As Rogers, supra, shows, it is not always necessary for theclient actually to disclose part of the contents of the advice in order to waive privilege to the relevant communications of which it forms apart.

It was sufficient in this case for the RCMP to support its good faith argument by undisclosed advice from legal counsel incircumstances where, as here, the existence or non-existence of the asserted good faith depended on the content of that legal advice. Theclear implication sought to be conveyed to the court by the RCMP was that Mr.

Leising’s advice had assured the RCMP that theproposed reverse sting was legal. [At paras. 69-70.] [30] Subsequent decisions have also made it clear that for waiver to be implied, the privilege-holder must have raised voluntarily and forhis or her own benefit the issue of whether and how he or she was influenced by the solicitor’s advice; and that his or her state of mindmust be material to an issue in the litigation: see, e.g., Doman Forest Products Ltd. v. GMAC Commercial Credit Corp. -Canada 2004 BCCA 512 at paras. 17, 26, citing Hearn v. Rhay 68 F.R.D. 574 (E.D. Wash., 1975) at 581.

At the same time, the partywho has raised the state-of-mind issue need not do so in his or her pleadings, or even in the actual proceeding in which the waiver issought. As the plaintiffs note in their factum, the matter may be raised in affidavit evidence or discovery, and in a related proceeding towhich the privilege-holder is party: see National Bank Financial Ltd. v. Potter 2007 NSSC 22 at paras. 9-10; Soleil Hotel & Suites Ltd. v.Soleil Management Inc. 2007 BCSC 1420 at para. 26, citing Western Assurance Co. v. Canada Life Assurance Company (1987) (ON SC), 63 O.R. (2d) 276 (Ont. S.C.).

In my view, the case at bar falls within all the foregoing parameters. [36] Further judicial commentary on implied waiver is found in Leggat v. Jennings, 2015 ONSC 237: [24] There can be no doubt that solicitor and client privilege is of fundamental importance. This has been emphasised repeatedly by theSupreme Court of Canada since 2001, when R. v. McClure was decided. At para. 17 of McClure, Major J. stated: Solicitor-client privilege is part of and fundamental to the Canadian legal system.

While its historical roots are a rule of evidence, it hasevolved into a fundamental and substantive rule of law. [25] Commencing at para. 26, Major J. discussed other sorts of communications that are worthy of confidentiality. At para. 31, he stated: The foregoing privileges, such as communication between a doctor and his patient, do not occupy the unique position of solicitor-clientprivilege or resonate with the same concerns. This privilege, by itself, commands a unique status within the legal system. The important

relationship between a client and his or her lawyer stretches beyond the parties and is integral to the workings of the legal system itself.The solicitor-client relationship is a part of that system, not ancillary to it. [26] At para.35 he stated: However, solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.

As such, itwill only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis. [27] These principles have been restated and re-emphasised in subsequent cases decided by the Supreme Court of Canada: see R. v.Brown, 2002 SCC 32 , [2002] 2 S.C.R. 185; Lavallée, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 ,[2002] 3 S.C.R. 209; Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31 , [2004] 1 S.C.R. 809; and Canada(Privacy Commissioner) v.

Blood Tribe Department of Health, 2008 SCC 44 , [2008] 2 S.C.R. 574. … [32] It is clear that a party may impliedly waive privilege where it has put reliance on legal advice in issue. … [46] Justice Perell’s conclusion is captured in para. 30 of his reasons, quoted above, where he sets out a two-part test that must besatisfied in order to conclude that privilege has been waived.

The following must be shown: 1. the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence; which is to say thatthe presence or absence of legal advice is material to the lawsuit; and 2. the party who received the legal advice must make the receipt of it an issue in the claim or defence. [47] I agree with and adopt Perell J.’s conclusion.

To the extent that there is any difference between his analysis and the analysis in thecases relied on by the Leggat parties, I prefer the analysis of Justice Perell. [37] Five years ago, in Soprema Inc. v Woldridge Mahon LLP, 2016 BCCA 471, Justice Harris held that the weight of authoritysupports the proposition that a party must voluntarily inject into the litigation legal advice it received or its understanding of the lawbefore waiver can be implied: [46] One final case illustrates the same issue. R. v. Campbell concerned the legality of a reverse sting operation.

An RCMP member hadconsulted a Department of Justice lawyer about the legality of the operation. One issue in the case involved an application for a stay ofproceedings. The legality of the operation was relevant to the application and the police officer’s state of mind as to its legality and goodfaith in conducting it were factors in whether a stay would be granted. [47] The RCMP invoked in support of its good faith argument that it had consulted with and relied on legal advice. Unsurprisingly, theSupreme Court of Canada concluded that the RCMP had waived the right to shelter behind solicitor-client privilege.

But the reason forthat conclusion is telling. Justice Binnie, for the Court, wrote: [70] The present case presents a stronger argument for waiver than Rogers. The Crown led evidence from Cpl. Reynolds about hisknowledge of the law with respect to reverse sting operations – he testified that he had read the Superior Court decision in Lore, supra,and was of the view that the operation in question was legal. But Cpl. Reynolds also testified, in answer to the appellants’ counsel,that he sought out the opinion of Mr. Leising of the Department of Justice to verify the correctness of his own understanding.

Theappellants’ counsel recognized that this alone was not enough to waive the privilege. Cpl. Reynolds was simply responding to questionscrafted by the appellants, as he was required to do. Appellants’ counsel accepted that he had no right at that point to access thecommunications. His comment to the judge was simply that “I certainly don’t want to hear the argument that ‘Oh well, the police actedin good faith because they acted on legal advice’”. The critical point is that the Court did [emphasis by Binnie J.] hear that preciseargument from the Crown at a later date.

The RCMP and its legal advisers were explicit in their factum in the Court of Appeal, where itwas argued that “regard must be had to the following considerations ... (

f) The R.C.M.P. ... consulted with the Department of Justice withregard to any problems of illegality” (emphasis added by Binnie J.). We understand that the same position was advanced to the trialjudge. As Rogers, supra, shows, it is not always necessary for the client actually to disclose part of the contents of the advice in order towaive privilege to the relevant communications of which it forms a part.

It was sufficient in this case for the RCMP to support its goodfaith argument by undisclosed advice from legal counsel in circumstances where, as here, the existence or non-existence of the assertedgood faith depended on the content of that legal advice. The clear implication sought to be conveyed to the court by the RCMP was thatMr. Leising’s advice had assured the RCMP that the proposed reverse sting was legal. [71] Cpl.

Reynolds was not required to pledge his belief in the legality of the reverse sting operation (comparable to the bank’s putting inissue its belief in the correctness of the advice it was obtaining from the receiver in Rogers, supra). Nor was it necessary for the RCMP toplead the existence of Mr. Leising’s legal opinion as a factor weighing against the imposition of a stay of proceedings (which wentbeyond what was done in Rogers).

The RCMP and the Crown having done so, however, I do not think disclosure of the advice inquestion could fairly be withheld. [Emphasis added.] [48] In my view, this case, although arising in a criminal context, strongly supports the proposition that it is not sufficient for impliedwaiver of privilege that a party’s state of mind as to its understanding of its legal position or advice it received is relevant to a materialissue. Here, even though Cpl. Reynolds’ state of mind was relevant, he did not have to make his legal understanding an issue.

Equally,even having received legal advice, the RCMP did not need to introduce it into the proceeding to justify police conduct. If neither of thesethings had happened, the assumption was that privilege would not have been waived, notwithstanding the legal advice’s potentialrelevance.

[49] In my view, the authorities in this province do not clearly preclude the approach taken by the judge, although on balance I think theweight of authority supports the proposition that a party must voluntarily inject into the litigation legal advice it received or itsunderstanding of the law before waiver can be implied. [50] I would reach the same conclusion based on principle. The starting point of an articulation of the test for implied waiver mustrecognize what the Supreme Court of Canada has made clear about the importance of solicitor-client privilege. In R. v.

McClure, 2001SCC 14 at para. 35, the Court said that solicitor-client privilege “must be as close to absolute as possible to ensure public confidence andretain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on acase-by-case basis” (emphasis added).

Furthermore, the Court said (at para. 17) that solicitor-client privilege “is part of and fundamentalto the Canadian legal system. ... [I]t has evolved into a fundamental and substantive rule of law.” This view was affirmed in Goodis v.Ontario (Ministry of Correctional Services), 2006 SCC 31 at paras. 20-21, where the Supreme Court of Canada made clear thatcommunications protected by privilege should be disclosed only where “absolutely necessary”, applying “as restrictive a test as may beformulated short of an absolute prohibition in every case.” [51] Accordingly, one must be cautious about a test for implied waiver that does not rest on a bright line capable of identifying “clearlydefined circumstances”, which depends on balancing interests, and which appears to treat implied waiver as ultimately a discretionarycall about trial fairness.

In my opinion, the test relied on by the judge does not adequately give effect to the near absolute protection ofsolicitor-client privilege mandated by the Supreme Court. Rather than permitting the abrogation of privilege only in clearly definedcircumstances, the recognition of the privilege becomes, at best, subject to a balancing of interests on a case-by-case basis. This, in myview, is inconsistent with more recent pronouncements both of the nature and of the importance of solicitor-client privilege. [52] This point is reinforced when one recalls the nature of the cause of action.

Negligent misrepresentation will always put in issue aparty’s “state of mind” because reliance in fact and reasonable reliance are necessary elements of the claim. Other causes of action maywell raise the same issue. Where a party has received legal advice on the subject of the transaction, its understanding of the law willalways be relevant. Relevance will, it seems, inevitably drive waiver. This is not consistent with the law of privilege articulated by theSupreme Court. The judge here crafted a surgical order in the exercise of a gatekeeping function intended to balance privilege and a fairtrial process.

However, it is not apparent to me that the approach taken addresses the concern that, in cases involving reliance in fact orreasonable reliance, claims of privilege will always be suspect because it will always be possible to craft an order focused on materiality(rather than Peruvian Guano relevance) and it is precisely in those circumstances that one might think that the claim of privilege is mostpressing.

The test used by the judge calls into question whether solicitor-client privilege would ever be protected in a case involvingreasonable reliance. [53] Where legal advice may have influenced a party’s “state of mind” on a material issue, it is inevitable that upholding the privilegewill confer a litigation advantage on the party claiming it because the other would be denied access to relevant information about theopposing party’s state of mind.

One might think that this is an inevitable result of recognizing and upholding claims of solicitor-clientprivilege because part of the point of privilege is to protect from disclosure communications which are otherwise material and relevant.But it does not follow from this that that litigation advantage is “unfair”. I do not think one can properly describe a litigation advantage“unfair” when it results from the recognition and protection of a fundamentally important principle in the legal system.

Furthermore,protecting privilege in these circumstances does not raise an issue of inconsistency because the party asserting the privilege is not relyingon the advice it received to justify its conduct at the same time as it shields that advice from disclosure. [38] Finally, on March 24, 2021, Justice Fitch had occasion to consider, review and comment on solicitor-client privilege and waiverin Graham v. Canada (Minister of Justice), 2021 BCCA 118. From my reading of the decision, our Court of Appeal continues to agreewith the principles of law set out in the authorities above.

Analysis [39] At any time before imposing sentence, a trial court judge has the power to permit a plea of guilty to be withdrawn. The decisionwhether permission to withdraw a plea of guilty should be given rests in the discretion of the judge to whom the application for suchpermission is made. As per Justice Fitch at paragraph 81 in R. v. Lam, 2020 BCCA 276: [81] A trial judge has the discretion to permit an accused person to withdraw a guilty plea. Provided the trial judge exercises thediscretion judicially, an appellate court is unlikely to interfere: R. v. Adgey (1973), (SCC), [1975]2 S.C.R. 426 at 430; R. v.

Alec, 2016 BCCA 282 at para. 74; R. v. G.F., 2018 BCCA 81 at para. 32. [40] N.N.H.’s Application to Strike Guilty Plea does not allege ineffective assistance of counsel. Rather, as per in Wong, N.N.H.argues that he should be allowed to withdraw his guilty plea because he was unaware on June 19, 2020, of the criminal consequences ofthe guilty plea and the legally relevant collateral consequences.

He further claims that his guilty plea was not voluntary, informed andunequivocal. [41] It is apparent to me that N.N.H. is alleging both of the forms of prejudice identified in paragraphs 20 and 21 of Wong: [20] With respect to the first form of prejudice — where the accused would have opted for a trial and pleaded not guilty — there will ofcourse be instances in which the accused may have little to no chance of success at trial, and the choice to proceed to trial may simply bethrowing a “Hail Mary”.

But a remote chance of success at trial does not necessarily mean that the accused is not sincere in his or herclaim that the plea would have been different. For certain accused, such as the accused in Lee, the certain but previously unknownconsequences of a conviction made even a remote chance of success at trial a chance worth taking.

In such circumstances, and where thecourt accepts the veracity of his or her statement, the accused has demonstrated prejudice and should be entitled to withdraw his or herplea. [21] There remains the second form of prejudice — where an accused would have pleaded guilty, but only on different conditions. Aguilty plea on different conditions will suffice to establish prejudice where a court finds that the accused would have insisted on thoseconditions to enter a guilty plea and where those conditions would have alleviated, in whole or in part, the adverse effects of the legallyrelevant consequence.

We do not presume here to list every condition which, if raised by the accused, could give rise to prejudice. At

minimum, however, these additional conditions may include accepting a reduced charge to a lesser included offence, a withdrawal of other charges, a promise from the Crown not to proceed on other charges, or a joint submission on sentencing. [ 42 ] The analysis in Wong operates from the standpoint of the accused.

As set out at paragraphs 6 and 26 in Wong , a person such as N.N.H., seeking to withdraw a guilty plea because they were unaware of the criminal consequences of the guilty plea and the legally relevant collateral consequences -- as opposed to relying upon an argument of ineffective legal counsel -- must establish subjective prejudice scrutinized by an objective assessment of the person’s subjective claim: [6] In our view, the accused should be required to establish subjective prejudice.

Meaning, accused persons who seek to withdraw their guilty plea on the basis that they were unaware of legally relevant consequences at the time of the plea must file an affidavit establishing a reasonable possibility that they would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions. To assess the veracity of that claim, courts can look to objective, contemporaneous evidence.

The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim. … [26] That the analysis focusses on the accused’s subjective choice does not mean that a court must automatically accept an accused’s claim. Like all credibility determinations, the accused’s claim about what his or her subjective and fully informed choice would have been is measured against objective circumstances.

Courts should therefore carefully scrutinize the accused’s assertion, looking to objective, circumstantial evidence to test its veracity against a standard of reasonable possibility. Such factors may include the strength of the Crown’s case, any concessions or statements from the Crown regarding its case (including a willingness to pursue a joint submission or reduce the charge to a lesser included offence) and any relevant defence the accused may have.

The court may also assess the strength of connection between the guilty plea and the collateral consequence, that is, whether the trigger for the collateral consequence is the finding of guilt as distinct from a particular length of sentence.

More particularly, where the collateral consequence depends on the length of the sentence — keeping in mind that a guilty plea typically mitigates a sentence — the court may have reason to doubt the veracity of the accused’s claim. [ 43 ] Therefore, in compliance with Wong , N.N.H. filed an Affidavit with his Application to Strike Guilty Plea . [ 44 ] Both the Affidavit and the Application to Strike Guilty Plea specifically refer to conversations N.N.H. had with Previous Counsel and legal advice that N.N.H. received from Previous Counsel.

In other words, matters that are as a matter of course protected by solicitor-client privilege. Furthermore, H.’s Response to Crown Application Filed January 20, 2021 also makes specific mention of matters that are as a matter of course protected by solicitor-client privilege. [ 45 ] It was N.N.H., to use the terminology of Justice Harris in Soprema Inc. , who injected into the litigation legal advice he received from Previous Counsel. [ 46 ] Put another way, to use the analysis set out by Justice Perell in Creative Career Systems Inc. v.

Ontario , 2012 ONSC 649 , a deemed waiver and an obligation to disclose a privileged communication requires two elements; namely: 1. the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence; which is to say that the presence or absence of legal advice is material to the lawsuit; and 2. the party who received the legal advice must make the receipt of it an issue in the claim or defence. [ 47 ] Based on the plain reading of the words in N.N.H.’s Affidavit and the legal argument set out in his Application to Strike Guilty Plea and H.’s Response to Crown Application Filed January 20, 2021 , I conclude that: 1.

N.N.H. has made public the presence or absence of legal advice he received from Previous Counsel, which is relevant to the existence or non-existence of his claim as to why he should be allowed to withdraw his guilty plea; which is to say that the presence or absence of Previous Counsel’s legal advice is material to the Application to Strike Guilty Plea ; and 2. Unlike in Soprema Inc. -- where the party asserting the solicitor-client privilege was not relying on the advice it received to justify its conduct at the same time as it shielded that advice from disclosure – N.N.H. has made his

interpretation of and decision to follow the legal advice he received (or did not receive) from Previous Counsel a key issue in his request to withdraw his guilty plea. [ 48 ] I am mindful of the words of Justice Major, in McClure , supra, at paragraph 47 : …The privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction. [ 49 ] In addition, I am mindful of Pritchard v.

Ontario (Human Rights Commission) , supra, at paragraph 17 : …privilege is jealously guarded and should only be set aside in the most unusual circumstances, such as a genuine risk of wrongful conviction. Decision [ 50 ] I am unable to accept Mr.

Zipp’s argument that the net result of the BC Prosecution Service taking “no position” on the issue of whether there has been an expressed or implied waiver of solicitor-client privilege, in whole or in part, by N.N.H. regarding Previous Counsel, should be the end of the matter. [ 51 ] It was the BC Prosecution Service that brought the January 20, 2021 Crown Application to a Judge seeking an order or declaration of the court that N.N.H. follow the British Columbia Court of Appeal Practice Directive (Criminal), Title: Ineffective

Assistance of Trial Counsel (Issued: 12 November 2013) . The point of the January 20, 2021, Crown Application to a Judge was to have Previous Counsel ruled a compellable witness on his privileged communications with N.N.H., as disclosed by N.N.H. in his Affidavit , the Application to Strike Guilty Plea and H.’s Response to Crown Application Filed January 20, 2021 .

The reason seems simple enough: the BC Prosecution Service quite properly wanted to set the stage for the Court to consider N.N.H.’s evidence and arguments in light of objective, contemporaneous evidence. [ 52 ] Since Wong confirms that N.N.H.’s claim about what his subjective and fully informed choice would have been is to be measured against objective circumstances – and Previous Counsel is the only other person who knows what was or was not discussed between them, the probative value of the proposed examination of Previous Counsel substantially outweighs its prejudicial effect for purposes of the application to withdraw the guilty plea. [ 53 ] In R. v.

Earle , 2021 ONCA 34 , at paragraphs 66 to 74 , Justice Lauwers for the Ontario Court of Appeal had occasion to address the failure of an appellant in an allegation of ineffective assistance of legal counsel case to provide an Affidavit from his trial counsel. I am of the view that the same holds true in the case of an application to withdraw a guilty plea.

Of especial note is Justice Lauwers conclusions at paragraph 74: [74] In my view, this is a case in which this court can and should draw an adverse inference against the appellant for failing to file trial counsel’s affidavit and a will-say statement from the author of the memorandum. His failure to produce materials that are routinely filed in ineffective assistance claims leaves the strong impression that those materials would have been more harmful than helpful to his case.

I would dismiss the appellant’s claim that he was ineffectively assisted by trial counsel. [ 54 ] The core issues go to the guilt of N.N.H., as he has already pled guilty.

That is, there is a genuine risk of a wrongful conviction if N.N.H. is correct that he should be allowed to withdraw his guilty plea (which would reinstate the presumption of innocence for N.N.H.), but he is unsuccessful in his application to do so because the Court was unable to assess N.N.H.’s evidence regarding his decision to plead guilty on June 19, 2020, and his claim about what his subjective and fully informed choice would have been as measured against objective circumstances. [ 55 ] It would be unfair to the BC Prosecution Service to disallow the examination of Previous Counsel on the privileged communications that N.N.H. put into issue. [ 56 ] It would also be unfair to deny the BC Prosecution Service the opportunity to inquire of Previous Counsel if he discussed or otherwise put the Agreed Statement of Facts to N.N.H., which is specifically denied by N.N.H. [ 57 ] As per Soprema Inc. , supra, at paragraph 50 , allowing the examination of Previous Counsel on the privileged communications and the Agreed Statement of Facts is “absolutely necessary” to the Court’s ability to assess N.N.H.’s evidence regarding his decision to plead guilty on June 19, 2020, and his claim about what his subjective and fully informed choice would have been as measured against objective circumstances. [ 58 ] I find that implied waiver of one’s solicitor-client privilege can occur by making certain arguments or relying on certain facts in an Affidavit or during testimony in the context of an application to withdraw a guilty plea.

I find that N.N.H. waived solicitor-client privilege in an implied way regarding Previous Counsel in this case. [ 59 ] I am satisfied N.N.H. made a clear, voluntary, informed and unequivocal decision to reference and rely upon his communications with and legal advice received from Previous Counsel as set out in his Affidavit , the Application to Strike Guilty Plea and H.’s Response to Crown Application Filed January 20, 2021 .

N.N.H. did so for a strategic reason: to advance his argument before this Court that he should be allowed to withdraw his guilty plea. [ 60 ] Because I am hearing this matter in my capacity as a trial court judge, I do not believe that I have the ability to order Previous Counsel to provide an Affidavit in response to the issues raised in N.N.H.’s Affidavit , the Application to Strike Guilty Plea and H.’s Response to Crown Application Filed January 20, 2021 .

Previous Counsel may want to, as a matter of convenience to counsel in the present case, prepare and file an Affidavit in response to N.N.H.’s Affidavit and the legal argument set out in N.N.H.’s Application to Strike Guilty Plea and H.’s Response to Crown Application Filed January 20, 2021 . However, I am not ordering him to do so. Orders Made [ 61 ] The orders that I am making are as follows: In Relation to Prince George Court Information [omitted for publication] I order that: 1. E.

Keith Jones is a compellable witness for the BC Prosecution Service at the hearing of N.N.H.’s Application to Strike Guilty Plea in relation solely to the subject matter and issues raised by N.N.H. in his Affidavit dated November 30, 2020, the Application to Strike Guilty Plea dated November 30, 2020, and H.’s Response to Crown Application Filed January 20, 2021 . 2. E. Keith Jones, within 15 days of being served a copy of this ruling and order, will review his solicitor’s file in the matter of Regina v.

N.N.H. , Prince George Court Information [omitted for publication], and where he is of the opinion that it divulges confidential information or instructions of N.N.H. unrelated to the subject matter and issues raised by N.N.H. in his Affidavit dated November 30, 2020, the legal argument set out in N.N.H.’s Application to Strike Guilty Plea dated November 30, 2020 and H.’s Response to Crown Application Filed January 20, 2021 , edit the file and redact any portions of the file over which privilege unrelated to N.N.H.’s Application to Strike Guilty Plea dated November 30, 2020, continues to be asserted. 3. E.

Keith Jones, within 15 days of being served a copy of this ruling and order, will provide a vetted copy of his solicitor’s file, with the exception of financial information, in the matter of Regina v. N.N.H. , Prince George Court Information [omitted for publication],

to N.N.H.’s current lawyer Tony Zipp. 4. Upon receipt of E.

Keith Jones’s solicitor’s file, Tony Zipp shall review it and where he is of the opinion that it divulges confidential information or instructions of N.N.H. unrelated to the subject matter and issues raised by N.N.H. in his Affidavit dated November 30, 2020, the legal argument set out in N.N.H.’s Application to Strike Guilty Plea dated November 30, 2020, and H.’s Response to Crown Application Filed January 20, 2021 , Tony Zipp will edit the solicitor file and redact any portions of the solicitor file over which privilege unrelated to N.N.H.’s Application to Strike Guilty Plea dated November 30, 2020, continues to be asserted. 5.

Tony Zipp will reimburse E. Keith Jones for reasonable expenses occurred in providing the vetted copy of his solicitor’s file in the matter of Regina v. N.N.H. , Prince George Court Information [omitted for publication], to Tony Zipp. 6. Tony Zipp shall provide a redacted copy of the solicitor file to Lisa Sukkau of the BC Prosecution Service by no later than 4 p.m. on June 21, 2021. 7. The BC Prosecution Service will reimburse Tony Zipp for reasonable expenses occurred in providing the redacted copy of E. Keith Jones’s solicitor’s file to the BC Prosecution Service, including any expenses paid by Tony Zipp to E.

Keith Jones. In Relation to Prince George Court Information [omitted for publication] I order that: 1. E. Keith Jones, within 15 days of being served a copy of this ruling and order, will review his solicitor’s file in the matter of Regina v.

N.N.H. , Prince George Court Information [omitted for publication], and where he is of the opinion that it divulges confidential information or instructions of N.N.H. unrelated to the subject matter and issues raised by N.N.H. in his Affidavit dated November 30, 2020, the legal argument set out in N.N.H.’s Application to Strike Guilty Plea dated November 30, 2020, and H.’s Response to Crown Application Filed January 20, 2021 , edit the file and redact any portions of the file over which privilege unrelated to N.N.H.’s Application to Strike Guilty Plea dated November 30, 2020, continues to be asserted. 2. E.

Keith Jones, within 15 days of being served a copy of this ruling and order, will provide a vetted copy of his solicitor’s file, with the exception of financial information, in the matter of Regina v. N.N.H. , Prince George Court Information [omitted for publication], to N.N.H.’s current lawyer Tony Zipp. 3. Tony Zipp will reimburse E. Keith Jones for reasonable expenses occurred in providing the vetted copy of his solicitor’s file in the matter of Regina v. N.N.H. , Prince George Court Information [omitted for publication], to Tony Zipp. 4. Upon receipt of E.

Keith Jones solicitor’s file, Tony Zipp shall review it and where he is of the opinion that it divulges confidential information or instructions of N.N.H. unrelated to the subject matter and issues raised by N.N.H. in his Affidavit dated November 30, 2020, the legal argument set out in N.N.H.’s Application to Strike Guilty Plea dated November 30, 2020, and H.’s Response to Crown Application Filed January 20, 2021 , Tony Zipp will edit the solicitor file and redact any portions of the solicitor file over which privilege unrelated to N.N.H.’s Application to Strike Guilty Plea dated November 30, 2020, continues to be asserted. 5.

Tony Zipp shall provide a redacted copy of the solicitor file to Lisa Sukkau of the BC Prosecution Service by no later than 4 p.m. on June 21, 2021. 6. The BC Prosecution Service will reimburse Tony Zipp for reasonable expenses occurred in providing the redacted copy of E. Keith Jones’s solicitor’s file to the BC Prosecution Service, including any expenses paid by Tony Zipp to E. Keith Jones. All of which is ordered this eleventh day of May, 2021. _____________________________ The Honourable Judge D. Patterson Provincial Court of British Columbia