Lawyers, Smartphones and Box 23
- January 28, 2018
- Clayton Rice, Q.C.
Invasion of lawyer and client confidentiality by the state in the digital era is increasing with alarming frequency. And the number of cases before Canadian courts involving violations of solicitor-client privilege are also increasing. The law is not the concern. It is well settled. It is the facts of these cases that reveal a growing indifference to this cornerstone of the legal system.
1. R v Shah
On March 26, 2015, Faraz Shah was the target of a firearm and drug trafficking investigation. During his arrest at his apartment in Markham, Ontario, the police seized four cell phones. An LG cell phone had been the subject of a dial number recorder warrant. A cursory search of that phone incidental to the arrest revealed a text message from someone named “Simon”. A police officer read the text. Investigators then learned that “Simon” was Shah’s Toronto lawyer, Simon King. There were 78 contacts between Shah’s cell phone and a number associated with King on the LG. The majority were text messages. No further search of the cell phone was conducted and the Crown brought an application for directions.
The Crown’s position was that the court should allow the police to review the text messages as a claim of privilege had not been made and that the cell phone should be vetted by the Crown before disclosure to the defence in order to protect confidentiality. Counsel for Shah argued that the proposed search might result in a breach of privilege. The issue raised the distinction between actual and presumed privilege. In a ruling reported as R v Shah, 2015 ONSC 4853 Justice A.M. Molloy relied on the leading case of Lavallee, Rackel & Heintz v Canada,  3 SCR 209 governing the physical searches of law offices and proceeded on the basis of presumed privilege, at paras. 18-20, that I will condense this way:
“[T]he Crown takes the position that unless and until there is an actual assertion from Mr. Shah that there are solicitor and client communications on his phone, the principles in Lavallee do not arise. I do not agree…[I]t is established that Simon King was Mr. Shah’s lawyer and it is also established that there were actual communications between Mr. Shah’s phone and a phone number set out on Mr. King’s business card. In my view, that is sufficient to give rise to a concern and is sufficient to require that the utmost care be taken to ensure that any privilege is protected.”
Justice Molloy went on, at paras. 29-35, to adopt this procedure. Two copies of the contents of the cell phone were to be made by an expert retained by the Crown. The expert was then required to deliver the cell phone and the two copies in a sealed envelope back to the Crown. The Crown was directed to then deposit the sealed envelope with the Criminal Trial Office. One copy of the contents was provided to defence counsel by court staff to determine whether a claim of privilege would be asserted. If a claim was made, the court copy and the cell phone would remain in the custody of the court until a judge determined whether a valid privilege claim was established.
2. R v Rudolph
Douglas Rudolph and Peter Mill were charged in a multi-count Indictment before the Nova Scotia Supreme Court alleging various fraud offences arising out of their involvement with the CanGlobe group of companies. I will reduce the complex facts to the ones that are important here.
On November 3, 2011, Mark David agreed to provide an induced statement to the RCMP. David had been disbarred by the Nova Scotia Barristers’ Society for professional misconduct relating to his involvement as a solicitor in the CanGlobe matter. At the end of the statement, David said he believed that solicitor-client privilege “no longer applied” in the case. On August 7, 2012, David gave a second statement to the police.
The police then sought further information from The Bank of Nova Scotia and the Royal Bank of Canada by way of production orders. The information sought was in relation to David’s trust account. The Informations to Obtain the production orders relied on some information contained in the statements David made to the police.
On February 23, 2013, the Nova Scotia Barristers’ Society handed over a box of documents to the police relating to David called Box 23. There was no warrant. Box 23 was scanned by the police onto a hard drive. It was subject to a post facto Lavallee analysis and released by the court. Rudolph was listed in trust bank journals and client trust listings contained in Box 23. The documents included a trust bank journal entry with the unspecified explanation – “retainer”.
In a ruling on remedy reported as R v Rudolph, 2017 NSSC 334 Justice Denise Boudreau summarized her preceding decision on violations of solicitor-client privilege, and the right to be secure against unreasonable search and seizure, at para. 5:
“I agreed with the applicants that their s. 7 and s. 8 Charter rights had been infringed, in relation to the taking of the statement of Mark David; the inclusion of portions of that statement in the bank ITOs; and the warrantless seizing of Box 23. I found that the circumstances created a situation of presumed solicitor-client privilege in the information provided by Mark David about the applicants, and in Box 23, and that this presumed privilege had been violated. In the case of Box 23, the privilege was eventually lifted by the Court following a hearing. In regards to the statement of Mark David, privilege has never been lifted by any Court.”
The Crown suggested on the stay application, with respect to the David statement, that the court review a transcript to determine if actual privilege was breached. The Crown also proposed that it call evidence of criminality in the relationship between David and the applicants. If the court determined that criminality existed, the presumption of privilege would be rebutted. The statement would not be privileged and never would have been.
In rejecting the Crown’s proposed procedure, in the context of the Babos analysis, Justice Boudreau held, at paras. 77 and 79:
“In relation to the statement, then, the Lavallee process has been entirely skipped. We cannot effect it now. The Supreme Court in Lavallee did not provide any permissible modifications to the process, nor did it provide any circumstances whereby its process could be avoided entirely. I simply do not see how I could proceed as suggested by the Crown, and stay within constitutional boundaries. I have found no precedent or authority for the Crown’s proposal. In fact, the authorities I do have, are to the contrary.
I agree that solicitor-client privilege is a rebuttable presumption. However, there is an appropriate time for seeking such a finding, and in my view, the time for doing that analysis has passed. It could only be done at a Lavallee hearing. More particularly, where the Crown seeks to ‘rebut’ solicitor-client privilege, the analysis must take place before the police/prosecution see the evidence. To allow otherwise would be to give the Crown a clear and unfair advantage. In my view it would be completely unfair, as well as a breach of the clear rules set down in Lavallee, to allow such a question to be litigated now. The Crown, the investigators, and their witnesses have now had the full benefit of the statement (the presumptively privileged evidence) for over six years.”
If the procedure in Lavallee had been followed, the David statement could have been sealed and the potential privilege holders given a reasonable opportunity to assert the privilege. If notification of the potential privilege holders was not possible, another lawyer appointed by either the Barristers’ Society or the court could have examined the document to determine whether a claim should be made.
Justice Boudreau noted that the police and the Barristers’ Society believed Box 23 was covered by a “generous interpretation” of the court order respecting its release. It was released to the parties following the post facto Lavallee process although it was not reviewed by the court in detail at that time. Justice Boudreau stated, at para. 92, that “they were wrong in this belief” and went on to conclude, at para. 104, that the case met the first category of the Babos test. The violation of privilege compromised trial fairness and could not be remedied other than by a judicial stay.
3. R v Amer
In this unreported case in the Court of Queen’s Bench of Alberta, Q.B. No.: 160544938Q1, at Calgary, the police obtained a general warrant under s. 487.01 of the Criminal Code to search mobile telephones for text messages and other data. The warrant was granted as part of an omnibus wiretap authorization. However, the warrant did not contain terms and conditions governing the manner of the search under the mandatory statutory requirement contained in s. 487.01(3).
An officer in the Calgary Police Service technology unit searched a smartphone seized from one of the defendants at the time of his arrest. The officer prepared a report that contained text messages between the defendant and a lawyer who acted for him on previous charges not before the court. The report was circulated to other investigators and provided to the prosecuting Crown agency. The Crown scanned the report and the text messages onto hard drives containing other disclosure and distributed the hard drives to counsel for the defendants who were jointly charged.
On February 21, 2017, an application was filed before Justice Glen Poelman, a case management judge under s. 551.1 of the Code, asserting that the general warrant was invalid because it authorized a search and seizure that was overly broad and in breach of ss. 7 and 8 of the Charter of Rights. On February 24, 2017, Justice Poelman granted a sealing and preservation order pending the hearing of the application. The order required that (a) the police deliver the smartphone, all downloaded data and all reports, notes and other related documents to the Clerk of the Court and (b) counsel for the co-accused deliver their copies of the hard drive to the Clerk.
On June 1, 2017, during the hearing of the application, Justice Poelman conducted a modified in camera hearing under the guidelines set out by the Supreme Court of Canada in R v Basi,  3 SCR 389 and viewed the text messages. The court held that the texts were privileged and the Crown conceded breaches of both solicitor-client privilege, and the right to be secure against unreasonable search and seizure.
On January 5, 2018, during the exclusion motion, the Crown also conceded a remedy under s. 24(2) of the Charter. Justice Poelman ordered that (a) the tainted smartphone and all evidence regarding the circumstances of its seizure be excluded from evidence and (b) all evidence respecting the ownership and possession of the smartphone gathered from the forensic examination also be excluded.
The Supreme Court of Canada commented in R v Jordan,  1 SCR 631 on the culture of complacency that had overwhelmed the right to a speedy trial in Canada. The cavalier attitude to lawyer and client confidentiality is another example of that malaise. In the cases I reviewed here, every official in the justice system failed the test – a governing body of the legal profession that released documents to the police without a warrant, a judge who granted a wiretap authorization with a general warrant to search mobile devices without limitation other than a temporal one and a Crown attorney who released privileged information after presumptively reviewing it for disclosure purposes under the Stinchcombe regime.
In R v Fearon,  3 SCR 621 the Supreme Court of Canada sanctioned cursory searches of cell phones as an incident of arrest. That is where the complacency begins – in cases like Shah where a police officer rummaged around in a cell phone without a warrant. The Fearon rule should be overturned. Lawyer and client electronic communications merit enhanced protection at the front end of the justice system. Requiring warrants based on reasonable grounds is a good place to start.