R. v. K.B., 2014 NSPC 23

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. K.B., 2014 NSPC 23 Date: May 16, 2014 Docket: 2632254, 2632255, 2632431, 2632432 Registry: Halifax Her Majesty the Queen v. K.B. and C.S., young persons DECISION Notice of Restriction: Ban on Publication CC Sec. 486.4(3) Complainant Identity Judge: The Honourable Judge Jamie S. Campbell Heard: April 30, 2014 Decision: May 16, 2014 Charge: CC 163.1(3)(a), CC 163.1(2)(

a) Counsel: Alexander Smith - Crown Attorney Brian Church - Defence Counsel Ian Hutchison - Defence Counsel By the Court : Publication Ban: 1 . The first issue to be addressed in this matter is the publication ban issued at the last court appearance on 30 April 2013. An application has been made to have that publication ban revoked. At the time that this decision was prepared no decision had been made with respect to that application. The decision has been written and will be published in compliance with the ban that was in place at the time it was written. 2 .

The ban relates to information that “could identify” any person who is the subject of a recording that constitutes child pornography. Subsection 486.4(3) says that in respect of an offence under s. 163.1, which is the child pornography

section of the Criminal Code , a judge “shall make” such an order banning publication. The charges here allege offences under that

section of the Criminal Code . The use of the word “shall” means that the imposition of the ban is mandatory. The judge has no discretion in that case to decline to impose the publication ban, even if he or she believes that it makes no sense whatsoever in the context of that case. That’s why the publication ban was originally issued. 3 . While the law prohibits the publication of the identity of the young person alleged to be depicted in the image or images that are the subject matter of the child pornography charges, the law does not permit and ought not to permit the case itself to be conducted

under a shroud of secrecy. Courts are public institutions and the functioning of the legal system must be open to public scrutiny. 4 . This case is most unusual. “This case” refers to the child pornography charges against K.B. and C.S. It has been the subject of numerous media reports. Those reports have identified the young woman alleged to be depicted in the image or images involved. Her name was not included in the charges themselves but was referenced when the charges were first announced and many, many, many times since. 5 . One of the assertions made by counsel is that the charges are an abuse of process. The argument in

summary is that the charges were laid as a result of political and public pressure. In order to understand that argument in even its most distilled form, it’s necessary to have some appreciation of the events leading up to those charges being laid. With the previous disclosure of her name and the reference to those highly publicized circumstances inferences could be made as to her identity.

If those circumstances, such as the fact that charges were not laid initially, that she took her own life, that the entire situation has been subject to intense media scrutiny, that her parents and others have called for action in the particular case, that politicians have commented on the matter and that an independent inquiry has been called, could not be referenced the ban would in effect be a ban on publication of the legal arguments and decision in a matter of intense public interest. 6 .

The reasons in this matter could be written and delivered orally in open court in a way that discloses the identity of all the young people involved leaving it to representatives of the media and their lawyers to decide how much they should or should not report. Others might be less circumspect. I have decided not to proceed that way. These reasons will respect the requirements of the publication ban made under s. 486.4(3) pending a decision on the application to revoke that ban. The reasons will not disclose the identity of the young person whose image is alleged to be the subject matter of the charges.

The reasons will not make reference to her name, the names of her parents or to other personal identifying information such as a physical description, an address or even community in which the offences are alleged to have taken place. These reasons will respect the requirements of that mandatory ban as it would be applied in any other case. 7 . The reasons have to include references that are necessary to provide the proper context for the legal argument.

Had the name of the young person never been published these reasons would not otherwise assist in identifying her as being involved in this child pornography case. 8 . A ban that resulted in making it practically impossible to report on the case in light of the larger legal, political and public debates that surround it would sacrifice the important principle of openness and transparency in the criminal justice system to a formal and impractical

interpretation of a mandatory rule which in any practical sense achieves nothing in this particular case. Factual Background: 9 . This application arises from criminal charges against two young men, C.S. and K.B. The Crown has alleged that on 12 November 2011 C.S. took a photograph of K.B. and a young person under the age of 16 and later sent that photograph to K.B. The Crown also asserts that the image satisfies the definition of child pornography under the Criminal Code . 10 .

On 29 November 2011 the young person and her mother went to the RCMP detachment where she told the police that she had been sexually assaulted by K.B. and that a photograph had been taken. The complaint was investigated. Charges were not laid. 11 . In April 2013 the young person whose picture is alleged to appear in the photograph took her own life. 12 . Since that time there has been significant public interest in the matter. There have been many public demands for “justice” and calls for someone to be called to account for what happened.

An independent review of the handling of the case by both the police and the Public Prosecution Service of Nova Scotia has been ordered. That was announced on 12 August 2013. 13 . These charges were laid in August 2013. 14 . The young men in this case have not been charged in relation to the death of the young person who took her own life. These charges are not about her death or the cause or causes of her death. The charges are about child pornography.

Any trial of the matter will deal with its legal definition and the issue of whether the Crown has proven beyond a reasonable doubt that K.B. and C.S. made or distributed child pornography. 15 . The young men intend to argue that the prosecution against them is an abuse of process and should not proceed. The claim is that the prosecution is a response to public and political pressure and is an improper exercise of prosecutorial discretion. 16 .

C.S. and K.B. through their legal counsel claim that they should be entitled to review the documents that will permit them to investigate why charges were laid in these cases and in particular whether those reasons include pressure from politicians or from the public. The Crown argues that the information sought by the two young men’s lawyers is protected from disclosure by privilege. 17 . This application is about the issue of disclosure only. It isn’t about the merits of the abuse of process claim or about the charges themselves. Disclosure Requests:

18 . The correspondence between the lawyers since August 2013 sets out the kinds of information that have been requested and the responses to those requests. It appears that some issues have been resolved over the course of months and some as recently as the day on which the application was heard. The list of items now in dispute is as follows: a. Communications between the Director of Public Prosecutions for Nova Scotia and the policing services involved in the investigation and re-investigation of this matter. b.

Communication between the Ontario Attorney General’s Office and the Crown Office prosecuting this matter and the policing services involved. c. Any and all communications relating to the decision to arrest C.S. and a list of authorities to whom that decision communique was made. d. Communications between the Nova Scotia Public Prosecution Service members and the Nova Scotia Department of Justice / Attorney General’s Office regarding this case including initial advice provided by the original Crown Attorneys who reviewed the matter. e.

Communications between the Director of Public Prosecutions for Nova Scotia and the Nova Scotia Department of Justice/Attorney General’s Office. f. Communications between the Nova Scotia Department of Justice and the Ontario Department of Justice and/or the Nova Scotia Public Prosecution Service and the Ontario Department of Justice. 19 . That list does not use the wording exactly as found in the formal requests for disclosure. Communications in this context mean essentially any record of any kind of communication.

The requests can be roughly classified as communications between the police and the Crown, whether in Nova Scotia or in Ontario, communications between the Crown lawyers in Ontario and the Crown lawyers in Nova Scotia, and communications between the Nova Scotia Attorney General and the Nova Scotia Director of Public Prosecutions (“DPP”) or the Nova Scotia Public Prosecution Service (“PPS”). The Crown’s disclosure obligations: 20 . Disclosure of information is fundamental to the ability of a person to make full answer and defence and to receive a fair trial.

The right to make full answer and defence has been described as one of the pillars of the criminal justice system. The test, briefly put, is that the accused person is entitled to disclosure of information if there is a reasonable possibility that the information might be useful in meeting the Crown’s case, advancing a defence or might impact the credibility or reliability of Crown witnesses. Information has to be disclosed if there is a “reasonable possibility” that withholding it would impair the right of the accused to make full answer and defence. [1] 21 .

The exceptions are for material that is beyond the Crown’s control, material that is clearly irrelevant or information that is subject to privilege. If the Crown intends to rely on one of those exceptions it must show on the balance of probabilities that the information comes within that exception. 22 . In this case the Crown argues that the information sought is protected from disclosure by solicitor-client privilege. 23 . There are two broad issues raised by that. The first is whether information sought is subject to solicitor-client privilege. The second issue is whether that privilege has been waived.

Solicitor-client privilege: 24 . Privilege is an exclusionary rule but isn’t grounded on concerns of unreliability or lack of probative value, like hearsay evidence for example. The evidence isn’t kept out of the trial because it isn’t potentially very helpful. The information could be material and highly probative. In other words it might well help to establish something very relevant to the trial. But sometimes the truth seeking function of an individual trial has to give way to other social policy considerations.

Privilege is “founded upon social values, external to the trial and its process, which are considered of superordinate importance.” [2] Privilege is so important to the legal process that even the truth in an individual case may have to give way to it. It doesn’t always. In some “clearly defined circumstances” it is solicitor-client privilege that has to give way. [3] 25 . Solicitor-client privilege has a “unique position in our legal fabric”. [4] In an adversarial system, privilege between lawyer and client, has to be carefully guarded.

Lawyers have to be able to advise clients with full frankness about the strengths and weaknesses of a case and about points of litigation strategy and tactics without concern that the advice will be disclosed and used against the client. The rationale underlying the privilege has been described as going beyond that utilitarian one. It is an expression of society’s commitment to “personal autonomy and access to justice”. [5] The privilege also serves to promote the adversarial process as “an effective and just means for resolving disputes.” [6] 26 .

In order for communication to come within the protection of solicitor-client privilege three elements have to be met. The

communication has to be between a lawyer and a client. That communication must involve seeking or giving legal advice and the advice must have been intended to be confidential. [7] 27 . The privilege applies as long as the communication falls “within the usual and ordinary scope of the professional relationship” [8] . That does not mean that only letters of opinion and notes from meetings in which legal advice was given are privileged. It attaches to all communications within the scope of the relationship in which information is exchanged in confidence for the purpose of obtaining or giving legal advice. That was defined by Justice Lamer as follows; In

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

This confidentiality attaches to all communications made within the framework of the solicitor-client relationship, which arises as soon as the potential client takes the first steps, and consequently even before the formal retainer is established. [9] 28 .

The privilege extends to communications that are within the framework of that relationship that directly relate to “the seeking, formulating or giving of legal advice”. [10] The communication itself does not have to request or offer the advice but must be “placed within the continuum in which the solicitor tenders advice”. [11] For example, statements about the evidence in a matter might not contain a direct request for legal advice but are made in the context and within the scope of seeking or offering that advice. 29 . Exceptions to the privilege are rare.

It is only set aside in the most unusual of circumstances. That does not mean that the concept should be expanded to include all communications between lawyers and their clients. The communication must be shown on the balance of probabilities to fall within the scope circumscribed by the three criteria . 1. Communications between the Ontario Attorney General’s Office and the Crown office prosecuting this matter and the police services involved in this matter. 30 . Crown counsel from the Ontario Attorney General’s Office was retained by the PPS to deal with the prosecution of this case.

The evidence of the investigating officer in this case, Det. Cst. Matthews was that on the directions of his superior officers he sought and obtained legal advice from the lawyers within the office of the Attorney General of Ontario. It was intended that the advice would be and would remain confidential. 31 .

Whether solicitor-client privilege attaches to communications involving government lawyers and the police depends on “the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.” [12] Officers have to be able to obtain legal advice about criminal investigations without having to worry about whether that advice will be used against the Crown in the case.

Solicitor-client privilege applies to communications between police officers and the Crown in circumstances in which confidential legal advice is being given. [13] That would include communications that are within the framework of the advice giving and advice receiving confidential relationship. 32 . The Crown has shown on the balance of probabilities that communications within the framework of the solicitor-client relationship between the Ontario Attorney General’s Office, including the lawyers within that office, and the police in this matter, are subject to solicitor-client privilege. 2.

Communications between the Director of Public Prosecutions and the policing services involved in the investigation and re- investigation. 33 . The applicants argue that a solicitor-client relationship cannot exist between the DPP and the police. The Ontario Crown has been providing advice to the police since the re-investigation commenced. Because the DPP is not the solicitor of record there can, on that argument, be no privilege. Mr. Hutchison argues that the police cannot claim a solicitor-client relationship with both the PPS and the Ontario Crown. 34 .

Retaining outside counsel to be responsible for carriage of the case may make that counsel “solicitor of record” for purposes of the court. It does not erase or necessarily sever the solicitor-client relationship that was established between the client and the first lawyer. Mr. Hutchison suggests that if a client retained a lawyer and sought legal advice from that lawyer, the client would waive solicitor-client privilege over the legal advice received from that lawyer by disclosing the advice to the second lawyer.

That would severely inhibit the ability of a client to obtain a second opinion or to retain a second lawyer who might be more experienced in a specialized area of law. The client would be required to maintain silence about the legal advice given by the original lawyer and would not be able to be entirely frank and open with the second lawyer. That is in a relationship where the system depends on people being able to get advice based on full disclosure. 35 . Solicitor-client privilege is so important to the system that it must be sufficiently robust to withstand that argument.

No legal precedent was provided in the course of the argument to support the proposition` that solicitor-client privilege can only apply to one lawyer at a time or that confidential disclosure of the opinion to a second lawyer amounts to a waiver of privilege. 36 .

If information is provided to a second lawyer, or a second law firm, or a second group of lawyers, with the intent that it be for the purpose of retaining legal advice, the privilege applies. [14] Telling that lawyer advice given by previous counsel with the intent that it remains confidential is not a waiver of the confidence as it relates to the first lawyer.

37 . Communication between the police and the Public Prosecution Service of Nova Scotia and the lawyers within that service, in the context of the case and within the framework of the relationship in which legal advice is given and received, is subject to solicitor- client privilege. 3. Communications between the Nova Scotia Public Prosecution Service members and Nova Scotia Department of Justice/ Attorney General’s Office regarding this case including initial advice by the original Crown Attorneys who reviewed this matter. 4.

Communications between the Nova Scotia DPP and the Nova Scotia Department of Justice/ Attorney General’s Office. 38 . The applicants argue that communications between the DPP or members of the Nova Scotia Public Prosecution Service and the Attorney General are not subject to solicitor-client privilege. They contend that there is no solicitor-client relationship. 39 . The Attorney General is the chief law officer of the Crown and is the minister responsible for all matters connected to the administration of justice in the province.

The Attorney General is accountable to the House of Assembly for all prosecutions to which the Public Prosecution Act [15] applies and is the minister responsible for the PPS. 40 . The Public Prosecutions Act was enacted in1990 in response to the recommendations of the Marshall Inquiry. One of the purposes as set out in the Act was to establish the position of Director of Public Prosecutions. The DPP serves as the head of the Public Prosecution Service. The DPP is operationally independent from the Attorney General in order to avoid political interference with prosecutions.

Prior to 1990 the Attorney General had the authority to direct prosecutors with respect the conduct of individual prosecutions. That is no longer the case. The authority of the Attorney General to give directions is limited by the legislation to insure that any such direction is public. The DPP must comply with directions of the Attorney General issued in writing and published pursuant to the provisions of the Act . Otherwise the DPP conducts prosecutions independently. 41 .

The provisions of the Public Prosecutions Act require the publication of instructions or guidelines from the Attorney General to the DPP/PPS. Those instructions or guidelines would of course not be subject to privilege. To the extent that communications between the DPP and the Attorney General or their representatives, contains directions pertaining to the investigation of this matter or the carriage of the case, those communications must be disclosed. They are not intended by the legislation to be confidential or subject to privilege.

They are intended to be entirely in the open to prevent political interference with the prosecution of criminal cases. 42 . The DPP and the Attorney General are not unrelated bodies. Their relationship is defined by the legislation to achieve the balance of accountability and functional independence. The Act sets out a relationship whereby the DPP is independent from political interference but is not entirely independent from the Attorney General. The political responsibility of the Attorney General remains a critical part of the system.

The DPP does not report directly to the House of Assembly but does so through the Attorney General. 43 . The Attorney General is politically responsible for PPS. The legislation contemplates consultation between the DPP and the Attorney General with respect to particular prosecutions and contemplates the Attorney General offering advice to the DPP. The Attorney General is, after all, ultimately accountable for all prosecutions. Political accountability under the Act would be meaningless if an Attorney General could not be advised and consulted about cases.

In order to consult and advise in a meaningful way on prosecutions, the DPP/PPS must be able to disclose to the Attorney General the legal advice received from PPS lawyers and other legal counsel retained to provide legal advice. That communication does not amount to a third party disclosure that would constitute a waiver of the confidentiality of the legal advice. It is internal to the Crown. 44 . The PPS and the Attorney General each have a defined scope of responsibilities on behalf of the Crown for the prosecution of cases within the province.

The DPP and the Attorney General, both of which operate as the Crown, must be able to exchange information in confidence, without the limited disclosure acting as a waiver of solicitor-client privilege. One is not the lawyer for the other but they are both the Crown. 45 . Legal advice was given in confidence by the lawyers of the PPS. That advice was given, in confidence to the Attorney General as part of the relationship established by statute.

The communications between the DPP/PPS and the Nova Scotia Attorney General are subject to solicitor-client privilege to the extent that they contain legal advice given and share in confidence. 5. Communications between the Nova Scotia Department of Justice and the Ontario Department of Justice and/or the Nova Scotia Public Prosecution Service and the Ontario Department of Justice. 46 . The Ontario Department of Justice/ Attorney General’s Office has been retained by the DPP in Nova Scotia to conduct this prosecution. 47 .

Ontario counsel has been providing confidential legal advice to the DPP since the Ontario counsel took carriage of the file. While Crown counsel have obligations to the system that reflect their unique role, they must still be able to provide legal advice and to discuss that advice internally. When Ontario counsel was retained to deal with this matter it would be understood that their communications with the DPP in Nova Scotia would necessarily be in confidence. Those communications come squarely within the three criteria set out in Solosky . 48 .

The privilege does not attach only to advice kept confidential between the lawyer personally and the client personally. Each may have staff employed in a confidential capacity. Providing that information to those employees in the context of their employment is not a breach of confidence or a waiver of the privilege.

6. Communications relating to the decision to arrest C.S. and a list of authorities to whom that decision communique was made. 49 . This appears to relate to communications between the police and the Crown with respect to the decision to arrest C.S. It is at least similar to the request for communications related to the investigation itself. Communications between the police and the Crown, whether that be in Ontario or in Nova Scotia are privileged if they are within the normal course of the professional relationship in which legal advice has been given or received. 50 .

The request also relates to communication between the police and other agencies or authorities. If other agencies were advised of the decision to arrest the accused, that communication would not be subject to solicitor–client privilege and should be disclosed.

Summary: Privilege Issue 51 . This is not a situation in which the disclosure of an individual document is the issue. The application is with respect to broad classes of documents. The classes can be difficult at times to precisely define and there appears to be some overlap. This decision is intended to provide direction with regard to those classes of documents and its application to individual documents will require

interpretation by the applicants and the Crown. 52 . Communications that are within the framework of the solicitor-client relationship where that relationship involves giving and receiving confidential legal advice are subject to privilege. 53 . In this case, the privilege attaches to communications between the police and the prosecutors. Those prosecuting lawyers may be with the PPS or the Ontario Attorney General’s Office. It attaches to communications between the PPS and the Ontario Attorney General’s office and legal counsel within those offices.

It attaches to reports containing legal advice and reference to legal advice provided by the PPS/DPP to the Attorney General of Nova Scotia as part of the legislatively defined relationship between those two Crown entities. 54 . The privilege does not attach to communications between the Attorney General and the DPP/PPS in which directions or guidelines are communicated. The Public Prosecutions Act requires that those communications be public.

The privilege does not attach to police communications about the decision to charge the accused, with agencies or authorities other than Crown counsel either in Nova Scotia or Ontario. Waiver of solicitor-client privilege: 55 . The applicants argue that the privilege asserted by the Crown to relate to communications between the Crown and police has been waived with respect to all such communications. 56 . That is based on the disclosure of a document that contains confidential legal advice.

The applicants argue that having disclosed those materials the Crown has waived the right to assert that privilege over any materials. 57 . The evidence given as part of the application establishes that documents were disclosed in November 2013. The total disclosure package included about 1500 pages. The document in question is a one page and one paragraph supplemental report prepared by Det. Cst. Patricia Snair dated 30 October 2012, containing reference to confidential solicitor-client advice. Counsel have agreed that with regard to the document it contains confidential legal advice. 58 .

Reference was made to a second document which the Crown asserted was not privileged in the first place. That second document references a meeting with counsel. It does not contain any reference to legal advice but to advice about how the matter should be investigated. 59 . The Snair report was provided to the defence in November 2013. The issue of disclosure has been a contentious aspect of this matter for some time, as the correspondence amongst the lawyers indicates. Crown counsel maintained throughout the course of that correspondence that the Crown was relying on solicitor-client privilege.

It was simply not possible to interpret that chain of correspondence as in any way suggesting that the Crown was voluntarily waiving the privilege. If the Snair report contained solicitor- client advice it would be apparent that this was not consistent with the position that the Crown had put forward. The defence lawyers were obligated to notify the Crown that a confidential document had been received as soon as that came to their attention. 60 . The court in Aviaco International Leasing Inc. v. Boeing Canada Inc , [16] stated the obligation of counsel in that situation very clearly.

Once plaintiffs’ counsel realized that the letters had been sent to them by mistake – something that ought to have been obvious to them as soon as they saw the letters- they were under a positive duty to advise both counsel of the mistake. They then should have returned the letters without keeping any copies of them, or, if they reasonably thought that there was an issue as to whether they entitled to retain the letters they ought to have taken immediate steps to seek a ruling from the court on that issue. [17]

61 . The Crown was advised in court of the defence intention to argue the issue of waiver on 23 April 2014. Given the obligation of counsel to alert opposing counsel immediately upon receiving inadvertently disclosed privileged communications, it can only be presumed that defence counsel had only just become aware of that document. 62 . The issue at this stage is then whether the disclosure of documents containing legal advice should result in waiver of privilege over some or all of the materials that would otherwise be subject to that privilege. 63 .

Waiver of privilege is established when the party who holds that privilege “evinces” a voluntary intention to waive it. First then, in order to waive privilege a person has to be the holder of the privilege, in the case of solicitor-client privilege, the client. Second, the client must by his or her actions show an intention to waive the privilege. 64 . The waiver must be made by a person with that authority. In this case, the documents were put together by Detective Constable Andrew Matthews.

He made it very clear that the disclosure of the document in question was inadvertent and that he had no intention to waive privilege over that document or any other document to which privilege pertained. Det. Cst. Matthews was assigned as the lead investigator on 12 April 2013. He was instructed to obtain legal advice in this matter from the Ontario Crown. That was not his “call”. He was following the direction of his superior officers. He could contact those lawyers at any time after receiving that initial authorization. 65 . In Peach v.

Nova Scotia (Department of Transportation and Infrastructure Renewal) [18] the Court of Appeal held that in order to waive privilege on behalf of an organization the person must have the capacity to seek legal advice and have sufficient authority to act on behalf of the organization. In Peach the civil servant involved was described as a management-level employee. He was acting within both his subject matter and territorial jurisdiction. He could not make decisions that would impact policy or set precedents. The court held that nothing about the disclosed letter would either impact policy or set a precedent. 66 .

How that applies in the context of the police was addressed by Justice Casey Hill in R. v. Rutigliano [19] . The accused sought disclosure of legal advice that had been received by police witnesses. They said that statements by those witnesses that they had relied on legal advice constituted a valid waiver. Justice Hill held that the police witnesses did not have authority to waive the privilege. The Nova Scotia Court of Appeal decision in Peach was argued by the applicants to mean that the authority of a state actor should be considered to determine whether he or she had the authority to waive the privilege.

It was argued that the case manager, a detective inspector and the lead investigator, a staff sergeant, were the individuals with authority to seek out legal advice, to receive and consider that advice, and to decide whether to act on it or to disseminate it. 67 . The court held that in the context of the police, individual police witnesses do not have that authority. The head of the police force or his or her designate for the purpose is the responsible party to waive privilege.

The court explained that a chief of police or commissioner will have a force-wide perspective of the instances where privilege ought to be waived, “with a view to institutional factors, for example consistency of approach, avoidance of civil suits, etc., within the knowledge and policy-making purview of the force’s management.” [20] Individual police officers are usually not considered to be the party who holds that privilege and who are capable of deciding whether or not it should be waived. [21] That

interpretation is not inconsistent with the law as set out in Peach . 68 . In this case, Det. Cst. Andrew Matthews was the investigating officer. He had been instructed by his superior officers to seek legal counsel from the Attorney General’s Office in Ontario. He was not the person who would be positioned to make the decision about retaining counsel outside Nova Scotia. He was able to consult with Ontario counsel only after that decision had been made. Det. Cst.

Matthews had authority to interact with counsel but was not the person who made the decision as to whether counsel or which counsel would be consulted in the context of this investigation. 69 . He would not be in a position to assess the policy or civil implications of a decision to waive privilege. Det. Cst. Matthews agreed that if he had wanted to waive solicitor-client privilege he would need to “go up the chain of command”. He did not have authority to waive solicitor-client privilege based on his own assessment. Only his supervising officers would be able to do that.

He was not directly challenged on that point and no evidence was put forward to suggest that he was mistaken as to the extent of his own authority. 70 . In Peach the reference is to decisions that impact policy or set a precedent. Justice Hill in Rutigliano applied that in the context of a police force. Both deal with the broader implications of the decision to waive privilege and the authority of the person to make decisions that have those broader implications. 71 . Det. Cst. Matthews had no authority on behalf of the police to waive privilege either intentionally or inadvertently.

Regardless of any intention that he might have evinced, he had no authority to waive privilege over the Snair report. 72 . The second aspect of the test is whether the party voluntarily evinces an intention to waive the privilege. The intention is not subjective intention but whether the actions would suggest that a reasonable person was intending to waive privilege. A person’s honest statement that he did not intend to waive privilege is not at all determinative of the issue. The issue is whether in the circumstances, viewed objectively, that intent is shown.

Where the disclosure has been inadvertent, or simply a matter of mistake or human error, there are three factors to be considered in deciding whether that intent has been shown. [22] The first is whether the error was indeed inadvertent. The second is whether immediate steps were taken to retrieve the documents. The third is whether the preservation of the privilege in the circumstances would cause unfairness. 73 . Det. Cst. Matthews was clear in stating that the document was not provided with the intent to disclose solicitor-client privileged information.

There was no intention to disclose materials that were privileged. Counsel for the accused have suggested that even if the error were inadvertent its disclosure was not excusable. Mr. Hutchison suggests that this is not a case with hundreds of thousands of pages of documents. The officer was responsible to provide about 1500 pages of documents. The disclosure of privileged communications, on that argument involved, as noted in Chan v. Dynasty Executive Suites “a level of carelessness that was greater than inadvertence”. [23]

74 . The document which contains privileged material was provided to the defence in November 2013 and the Crown was not made aware of that disclosure until 23 April 2014, in the context of a case in which disclosure is a seriously contentious issue. If the police could miss that one page and one paragraph among 1500 pages of disclosure, so apparently could the defence. 75 . In preparing the disclosure package the police followed the usual protocols by which documents are vetted and appropriate sections are redacted.

There was no suggestion here that there had been a bulk disclosure of documents with minimal effort taken to check what was being sent. Clearly portions of documents had been redacted. Some care had been taken in that regard. This one was missed. It was missed by human error. It was through inadvertence and not by a level of carelessness that was any greater than that. 76 . The Crown in this case responded immediately with a request for a return of the document as soon as counsel had been advised of the mistake. 77 .

The third consideration is whether the preservation of the privilege in the circumstances would cause unfairness to the receiving party. That does not refer to the mere fact that a document that would be helpful can no longer be used. The Ontario Supreme Court in Chan described that position as “untenable”, [24] and Justice Belobaba went on to state that it would undermine solicitor-client privilege and would mean, “in effect that there is no need to return privileged documents inadvertently produced …if they are found to be helpful to the party receiving the documents”. [25] 78 .

In this situation the defence has indicated nothing beyond that. 79 . Unfairness or inconsistency will arise when a party discloses a document and takes a position in the litigation that would make it inconsistent to maintain the privilege. A party cannot obtain some kind of litigation or tactical benefit from the disclosure then back away from the disclosure claiming privilege. If the other party relies on the disclosure and takes some action in the course of the litigation that prejudices its position, it would be unfair to permit the disclosing party to reclaim the document and assert privilege.

There could be any number of ways in which a party on the receiving end of inadvertent disclosure could argue that allowing the other party to maintain the privilege would be unfair or inconsistent. Simply claiming that they have lost the ability to use a potentially very useful document is not one of those.

Summary: Waiver of Solicitor-client privilege: 80 . Det. Cst. Matthews is the officer who disclosed a document that contained material that was subject to solicitor-client privilege. He was the investigating officer but did not have the authority to waive solicitor-client privilege on behalf of the police. Even if he had that authority there was no waiver here. The material was provided by mistake. The inadvertence here did not descend to the level of carelessness beyond inadvertence or approaching negligence. The Crown took immediate action to retrieve the material.

The applicants have not shown in any way how maintaining the privileged material would be unfair or inconsistent. Conclusion: 81 . Communications between the police and the prosecutors within the scope of the confidential relationship, in which legal advice is sought and received, are subject to solicitor-client privilege and need not be disclosed. Those prosecuting lawyers may be with the Public Prosecution Service or the Ontario Attorney General’s Office.

Communications containing confidential legal advice, exchanged between the Nova Scotia Public Prosecution Service and the Ontario Attorney General’s Office and legal counsel within those offices are subject to solicitor-client privilege. Reports containing legal advice and references to legal advice shared by the Public Prosecution Service/Director of Public Prosecutions with the Attorney General of Nova Scotia as representatives of the Crown and in the course of the relationship as set out in the Public Prosecutions Act are subject to solicitor-client privilege. 82 .

Any communications from the Attorney General of Nova Scotia or the Department of Justice of Nova Scotia and the Public Prosecution Service or the Director of Public Prosecutions which provides or purports to provide directions or guidelines with respect to the prosecution or investigation of the accused in this matter or in any related matter, are not subject to solicitor-client privilege and should be disclosed. 83 . Communications from the police to agencies and authorities outside the scope of the confidential relationship with the Crown are not subject to privilege and should be disclosed. 84 .

There has been no waiver of solicitor-client privilege by the police. It is then not necessary to determine the scope of any waiver.