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

Background

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.

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.

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.

Issue to be Determined

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.

[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.

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.

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..

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 be the 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 Court should now resolve the Application to Strike Guilty Plea by allowing N.N.H. to withdraw his guilty plea, as there is nothing before the court to contradict the sworn Affidavit of N.N.H.

Implied Waiver –The Legal Context

1.            Known of the existence of the privilege; and

2.            Demonstrated a voluntary and clear intent to forgo the privilege.

[6] Waiver of privilege is 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. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication, will be held to be waiver as to the entire communication. …

[35] However, solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.

[14] Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. Clients must feel free and protected to be frank and candid with their lawyers with respect to their affairs so that the legal system, as we have recognized it, may properly function: see Smith v. Jones, 1999 CanLII 674 (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, 1979 CanLII 9 (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 of litigation, 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 the professional relationship. The privilege, once established, is considerably broad and all-encompassing. In Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, the scope of the privilege was described, at p. 893, as attaching “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”. The scope of the privilege does not extend to communications: (1) where legal advice is not sought or offered; (2) where it is not intended to be confidential; or (3) that have the purpose of furthering unlawful conduct: 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 the justice system in Canada. The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented.

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 the privilege must be nearly absolute and that exceptions to it will be rare. Speaking for the Court on this point, Arbour J. reiterated what was stated in McClure:

. . . solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis. [Emphasis in original.]

(Arbour J. in Lavallee, supra, at para. 36, citing Major J. in McClure, at para. 35.)

[54] An accused witness can implicitly waive privilege through their conduct, in certain rare situations, either by (i) putting the legal advice 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), 1992 CanLII 2979 (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 on a privileged report in advancing his or her defence: R. v. Stone, 1999 CanLII 688 (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), 1982 CanLII 3324 (ON CA), 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 to prevent 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 merits then entitle the opposing party to see the privileged document or communications the witness has put in issue in order to assess the validity 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 trial judge's discretion, to be exercised on a principled basis as discussed in these reasons, and as also discussed in the several cases dealing with implied waiver.

…

[61] The facts and circumstances that come forward in criminal cases are unpredictable and varied. I see the flexibility of trial judges exercising 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 be the case if the judge were to allow a breach of the privilege. Ultimately, if a trial judge errs, correction is possible. A fixed evidentiary rule 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 the accused, the trial judge should consider what portions of the document to redact in order to minimize prejudice to the accused, and then complete the probative value versus prejudice effect analysis based on the redacted document. If after undertaking such an analysis the trial judge finds that the probative value of a cross-examination on the refresh document outweighs the prejudice to the accused, the judge should then stand back and weigh into the final analysis the protected status of solicitor-client privilege. That is, the judge should determine whether the probative value of a cross-examination has overcome the important policy objective of protecting the status of solicitor-client status or whether trial fairness and a disposition on the merits is more compelling in the circumstances than the damage that would occur from permitting a breach of solicitor-client privilege.

[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 to those 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 into evidence the substance of otherwise privileged communications concerning the conduct of his defence as the basis upon which he seeks a finding of ineffective counsel and an overturning of his conviction on appeal. In doing so we find that he has waived the protection of his solicitor-client privilege.

[22] Having found that Mr. Hobbs has waived solicitor-client privilege with respect to Mr. Bailey's legal representation, we wish to emphasize that not all communications between them must necessarily be disclosed. The waiver of privilege does not entitle the Crown to know the substance of all communications between Mr. Hobbs and Mr. Bailey. We leave it to Mr. Bailey and his counsel Mr. Wood to determine the nature and extent of disclosure bearing in mind Mr. Bailey's ethical obligations to Mr. Hobbs as a former client.

[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 waived in 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 all communications 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 of Privilege 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 with Ms. 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 flowing between them, in connection with the provision of legal advice. The communication must be intended to be made in confidence, in the course 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 retain relevance;

•                     where there is a conflict over whether a communication is privileged, it should be resolved in favour of protecting the privilege; and

•                     privilege can be waived voluntarily or implicitly and implicit waiver can be by inadvertent disclosure or by reliance on privileged 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 where the 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 written productions, or by testifying about them on discovery or cross-examination. Implicit waiver can also be made by reliance on privileged communications, in a pleading or otherwise. For example, if a party relies on legal advice sought and received as evidence of good faith or 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 cases where waiver has arisen. The cases suggest that the waiver is restricted to the particular subject matter and what is necessary to fairly resolve the issue before the court. For example, in Campbell the Court found the RCMP had waived privilege over the legal advice a particular officer had exposed and relied upon, but limited the scope of the waiver to the specific advice relied upon. The Court said at para. 74:

The relevant legal advice received by Cpl. Reynolds should be disclosed to the appellants. This is not an "open file" order in respect of the RCMP's solicitor and client communications. The only legal advice that has to be disclosed is the specific advice relating to the following matters identified by Cpl. Reynolds....

See also R. v. Li, 1993 CanLII 1314 (B.C.C.A).

[22] Limiting waiver to the particular subject matter over which privilege has waived is consistent with the protection our law accords solicitor-client privilege as stated in cases such as Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 (CanLII), [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 of listening to and watching the witness give evidence and am of the view that he is an unsophisticated individual. While the police statements demonstrate he had some understanding that his communications with his lawyer were confidential and was told by the police they were protected by solicitor-client privilege, I am not satisfied he understood that in disclosing some of his discussions with his counsel to the police he was waiving solicitor-client privilege. In other words, I am not satisfied he made a clear and informed decision to waive privilege.

[24] However, I must also examine whether he has implicitly waived privilege for reasons relating to trial fairness. In assessing trial fairness, it is significant that the witness has not sought to rely on whatever legal advice he received to explain or justify his evidence to the 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 the communications.

[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 allowing cross-examination on the privileged communications. At its highest, the probative value of the proposed cross-examination to an issue at trial is minimal.

[26] The witness's effort to negotiate a "deal" with the Crown, as well as his evolving acknowledgements concerning his participation in the 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 many police 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 to negotiate 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 privileged communications 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 the probative value of the proposed cross-examination is substantially outweighed by its prejudicial effect. To permit cross-examination would inevitably open the door to disclosure of other privileged communications, may necessitate the witness's lawyer being called to testify and producing his file, and would likely be distracting to the jury and delay an already lengthy trial. It also runs the risk of disclosing 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 privileged communications with his lawyer, other than those over which has provided a limited waiver. This includes statements by the witness to the police concerning communications between him and his lawyer. They may, of course, apply to have my decision reconsidered if further cross-examination warrants such an application.

[27] There is, however, a subtle and profound point here about when a party must answer questions about the occurrence of legal advice in the factual narrative of a case. The subtle and profound point is that there is no waiver of the privilege associated with lawyer and client communications from the mere fact that during the events giving rise to the claim or defence, the party received legal advice, even if 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 advice more is required.

[28] In Doman Forest Products Ltd. v. GMAC Commercial Credit Corp., 2004 BCCA 512, a case about whether privilege associated with legal advice had been waived, Justice Smith points out at para. 28 that it is not enough to constitute waiver that a pleading puts a party’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 that the state of mind involves the party understanding its legal position in a way that is material to the lawsuit. In other words, the presence or absence of legal advice itself must be material to the claims or defence to the lawsuit. The materiality of the legal advice to the claims or 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 the compelled disclosure of the legal advice. To justify a party being required to answer questions about the content of privileged communications, the party must utilize the presence or absence of legal advice as a material element of his or her claim or defence. The waiver 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 the waiver 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 requires not 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 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.

[26] We are concerned here with implied waiver rather than express waiver. In Halsbury’s Laws of Canada (1^st ed, 2010), Professor Hamish Stewart describes situations in which waiver will be implied as those in which the client “voluntarily takes a position in litigation that is inconsistent with the maintenance of the privilege”. The author gives a number of examples of implied waiver – where the client asserts reliance on legal advice or misconduct or incompetence of counsel; denies having given instructions that the solicitor has acted on; 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 unfair for the holder of the privilege to retain the benefit of the privilege. The first example of implied waiver described in Halsbury’s is obviously the most arguable in this case.

[27] The leading decision in this province appears to be Rogers et al. v. Bank of Montreal (1985) 1985 CanLII 141 (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 by Abacus. The principals of Abacus then sued the bank and others on the basis that it had been denied a reasonable opportunity to meet the demand 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 to allow 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 upon the advice from the receiver on legal matters. To take one instance, the receiver, according to the bank, advised the bank that it was not necessary to allow Abacus time for payment before the appointment of the receiver. A significant legal decision had been rendered some months 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 voluntarily injects into the suit the question of his state of mind. For example, in Anderson v. Nixon, 444 F. Supp 1195 … Judge Gesell stated that as a general principle ‘a client waives his attorney-client privilege when he brings suit or raises an affirmative defence that makes his intent and 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 DOE regulation or communication when the company made its pricing decisions. Thus, the only way to assess the validity of Exxon’s affirmative defenses, voluntarily injected into this dispute, is to investigate attorney-client communications where Exxon’s interpretation of various DOE policies and directives was established and where Exxon expressed its intentions regarding compliance with those policies and directives. There is no other reasonable way for a plaintiff to explore Exxon’s corporate state of mind, a consideration now central 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 “with respect to its legal advice.”

[29] Rogers was cited with approval by the Supreme Court of Canada in R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565 (also reported sub nom. R. v. Shirose (1999) 24 C.R. (5^th) 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 as necessarily inconsistent with its pleading of reliance, even though the bank itself had not referred to, much less relied upon, the existence of 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 the client actually to disclose part of the contents of the advice in order to waive privilege to the relevant communications of which it forms a part. It was sufficient in this case for the RCMP to support its good faith argument by undisclosed advice from legal counsel in circumstances where, as here, the existence or non-existence of the asserted good faith depended on the content of that legal advice. The clear implication sought to be conveyed to the court by the RCMP was that Mr. Leising’s advice had assured the RCMP that the proposed 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 for his 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 mind must 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 party who 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 is sought. As the plaintiffs note in their factum, the matter may be raised in affidavit evidence or discovery, and in a related proceeding to which 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) 1987 CanLII 4529 (ON SC), 63 O.R. (2d) 276 (Ont. S.C.). In my view, the case at bar falls within all the foregoing parameters.

[24] There can be no doubt that solicitor and client privilege is of fundamental importance. This has been emphasised repeatedly by the Supreme 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 has evolved 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-client privilege 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, it will 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 (CanLII), [2002] 2 S.C.R. 185; Lavallée, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 (CanLII), [2002] 3 S.C.R. 209; Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31 (CanLII), [2004] 1 S.C.R. 809; and Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 (CanLII), [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 be satisfied 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 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] I agree with and adopt Perell J.’s conclusion. To the extent that there is any difference between his analysis and the analysis in the cases relied on by the Leggat parties, I prefer the analysis of Justice Perell.

[46] One final case illustrates the same issue. R. v. Campbell concerned the legality of a reverse sting operation. An RCMP member had consulted a Department of Justice lawyer about the legality of the operation. One issue in the case involved an application for a stay of proceedings. The legality of the operation was relevant to the application and the police officer’s state of mind as to its legality and good faith 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, the Supreme Court of Canada concluded that the RCMP had waived the right to shelter behind solicitor-client privilege. But the reason for that 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 his knowledge 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. The appellants’ counsel recognized that this alone was not enough to waive the privilege. Cpl. Reynolds was simply responding to questions crafted by the appellants, as he was required to do. Appellants’ counsel accepted that he had no right at that point to access the communications. His comment to the judge was simply that “I certainly don’t want to hear the argument that ‘Oh well, the police acted in good faith because they acted on legal advice’”. The critical point is that the Court did [emphasis by Binnie J.] hear that precise argument from the Crown at a later date. The RCMP and its legal advisers were explicit in their factum in the Court of Appeal, where it was argued that “regard must be had to the following considerations ... (f) The R.C.M.P. ... consulted with the Department of Justice with regard to any problems of illegality” (emphasis added by Binnie J.). We understand that the same position was advanced to the trial judge. As Rogers, supra, shows, it is not always necessary for the client actually to disclose part of the contents of the advice in order to waive privilege to the relevant communications of which it forms a part. It was sufficient in this case for the RCMP to support its good faith argument by undisclosed advice from legal counsel in circumstances where, as here, the existence or non-existence of the asserted good faith depended on the content of that legal advice. The clear implication sought to be conveyed to the court by the RCMP was that Mr. 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 in issue its belief in the correctness of the advice it was obtaining from the receiver in Rogers, supra). Nor was it necessary for the RCMP to plead the existence of Mr. Leising’s legal opinion as a factor weighing against the imposition of a stay of proceedings (which went beyond what was done in Rogers). The RCMP and the Crown having done so, however, I do not think disclosure of the advice in question 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 implied waiver 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 material issue. 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 these things had happened, the assumption was that privilege would not have been waived, notwithstanding the legal advice’s potential relevance.

[49] In my view, the authorities in this province do not clearly preclude the approach taken by the judge, although on balance I think the weight of authority supports the proposition that a party must voluntarily inject into the litigation legal advice it received or its understanding 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 must recognize what the Supreme Court of Canada has made clear about the importance of solicitor-client privilege. In R. v. McClure, 2001 SCC 14 at para. 35, the Court said that solicitor-client privilege “must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis” (emphasis added). Furthermore, the Court said (at para. 17) that solicitor-client privilege “is part of and fundamental to 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 that communications protected by privilege should be disclosed only where “absolutely necessary”, applying “as restrictive a test as may be formulated 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 “clearly defined circumstances”, which depends on balancing interests, and which appears to treat implied waiver as ultimately a discretionary call about trial fairness. In my opinion, the test relied on by the judge does not adequately give effect to the near absolute protection of solicitor-client privilege mandated by the Supreme Court. Rather than permitting the abrogation of privilege only in clearly defined circumstances, the recognition of the privilege becomes, at best, subject to a balancing of interests on a case-by-case basis. This, in my view, 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 a party’s “state of mind” because reliance in fact and reasonable reliance are necessary elements of the claim. Other causes of action may well raise the same issue. Where a party has received legal advice on the subject of the transaction, its understanding of the law will always be relevant. Relevance will, it seems, inevitably drive waiver. This is not consistent with the law of privilege articulated by the Supreme Court. The judge here crafted a surgical order in the exercise of a gatekeeping function intended to balance privilege and a fair trial process. However, it is not apparent to me that the approach taken addresses the concern that, in cases involving reliance in fact or reasonable 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 most pressing. The test used by the judge calls into question whether solicitor-client privilege would ever be protected in a case involving reasonable reliance.

[53] Where legal advice may have influenced a party’s “state of mind” on a material issue, it is inevitable that upholding the privilege will confer a litigation advantage on the party claiming it because the other would be denied access to relevant information about the opposing party’s state of mind. One might think that this is an inevitable result of recognizing and upholding claims of solicitor-client privilege 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 relying on the advice it received to justify its conduct at the same time as it shields that advice from disclosure.

Analysis

[81] A trial judge has the discretion to permit an accused person to withdraw a guilty plea. Provided the trial judge exercises the discretion judicially, an appellate court is unlikely to interfere: R. v. Adgey (1973), 1973 CanLII 37 (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.

[20] With respect to the first form of prejudice — where the accused would have opted for a trial and pleaded not guilty — there will of course 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 be throwing a “Hail Mary”. But a remote chance of success at trial does not necessarily mean that the accused is not sincere in his or her claim that the plea would have been different. For certain accused, such as the accused in Lee, the certain but previously unknown consequences of a conviction made even a remote chance of success at trial a chance worth taking. In such circumstances, and where the court accepts the veracity of his or her statement, the accused has demonstrated prejudice and should be entitled to withdraw his or her plea.

[21] There remains the second form of prejudice — where an accused would have pleaded guilty, but only on different conditions. A guilty plea on different conditions will suffice to establish prejudice where a court finds that the accused would have insisted on those conditions to enter a guilty plea and where those conditions would have alleviated, in whole or in part, the adverse effects of the legally relevant 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.

[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.

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.

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.

…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.

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

Decision

[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.

Orders Made

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