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EVIDENCE - Privilege - Privileged relationships - Solicitor and client

Tuesday, February 06, 2018 @ 8:01 AM  

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Application by the two accused, charged with fraud offences, for a stay of proceedings following a finding that their s. 7 and s. 8 Charter rights had been breached. David, a disbarred lawyer, had provided a statement to the police implicating the accused, his purported clients, in a fraudulent scheme. In an earlier decision it was found the applicants’ rights had been infringed in relation to the taking of David’s statement, the inclusion of portions of that statement in an information to obtain used to obtain banking documents from David’s trust accounts, and the warrantless seizing of documents from the Nova Scotia Law Society. It had further been found that the circumstances created a situation of presumed solicitor-client privilege in the information provided by David about the applicants and in the documents, and that the privilege had been violated.

HELD: Application allowed. An irremediable breach of the Lavallee process had occurred in relation to David’s statement as the police actively elicited information from David without putting in place any Lavallee processes and without seeking a Lavallee hearing. Both the police and Crown counsel had extensively reviewed and used the material. It would be completely unfair for the Crown to seek to rebut solicitor-client privilege after having already reviewed the privileged evidence. The actions of the police, who were very much alive to the issue of solicitor-client privilege, were grossly careless. They had not exercised good faith. The breach of presumptive solicitor-client privilege could not be remedied in any way that allowed the prosecution to continue. The integrity of the administration of justice would be harmed by allowing the prosecution to continue.

R. v. Rudolph, [2017] N.S.J. No. 508, Ontario Superior Court of Justice, A.M. Molloy J., December 29, 2017. Digest No. TLD-Feb52018003