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Administrative Case Dicta - Public Inquiries Act. Ontario Civilian Police Commission v. Moreira
In Ontario Civilian Police Commission v. Moreira (Div Court, 2024) the Divisional Court ordered a summons against a police force, with the force partially-resisting on solicitor-client privilege grounds. This issue was to be decided under Public Inquiry Act procedures:[2] The Commission brought a stated case to the Divisional Court under s. 33(5) of the Public Inquiries Act for a determination whether the DRPS has a lawful excuse for not producing the withheld emails.
[3] The parties agree the only issue for me to decide is whether the emails are privileged.
[4] Solicitor-client privilege is essential to the proper functioning of our legal system and must remain as close to absolute as possible: Lavallee, Rackel & Heiz v. Canada (Attorney General), 2002 SCC 61 at para. 36. It covers all communications between a lawyer and client related to giving or receiving legal advice: Solosky v. Canada, 1979 CanLII 9 (SCC), [1980] 1 SCR 821 at 838. Solicitor-client privilege attaches to the facts communicated by the client and the lawyer’s work product, both of which could reveal the basis for the lawyer’s advice: R. v. Blank, 2006 SCC 39 at para. 49, Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20 at paras. 39 to 40. It even attaches to information of an administrative nature that is related to obtaining legal advice: Descouteaux v. Mierzwinksi, [1982] 1 SCR at 893. Solicitor-client privilege does not attach to communications: (a) in which legal advice is not sought or offered; (b) that were not intended to be confidential; or (c) that were made in furtherance of an illegal purpose: Solosky, at p. 835.
[5] As the party asserting the privilege claim, the onus is on the DRPS to establish the emails fall within the scope of solicitor-client privilege.
[6] The Commission argues DRPS has made a blanket claim of privilege and has not adduced sufficient evidence to establish the privilege applies to the emails in question. I appreciate the Commission’s frustration with the evidence presented by DRPS. The affidavit of Chief Moreira simply states the emails are “between the Service and its lawyers” and “are within the framework of the lawyer-client relationship.” No details are provided about the emails.
[7] Counsel for the DRPS argues that no information could be provided about the emails without compromising the privilege or risking a claim that the DRPS has waived the privilege.
[8] I agree with the Commission that it would have been preferrable for DRPS to provide some information about the emails, such as the number of emails, who the emails were between and perhaps the date on which the emails were exchanged. Having said that, the parties agreed that the Respondent could file the emails over which the DRPS claims privilege as part of the record on this stated case.
[9] Based on my review of the emails, I am satisfied they are all protected by solicitor-client privilege. They all involve communications between senior members of the DRPS and counsel to the DRPS related to the provision of legal advice. They are not emails between senior members of the DRPS that were also copied to counsel. This is not a case where a party is trying to improperly hide communications that would otherwise be producible behind the cloak of solicitor-client privilege merely because they were sent to counsel: Jacobson v. Atlas Copco Canada Inc., 2015 ONSC 4, Nova Chemicals et al. v. CEDA-Reactor Ltd. et al., 2014 ONSC 3995. The emails all involve one or more of the people named in the summons. They also involve counsel for the DRPS. And they all relate to the provision of legal advice to the DRPS.
[10] I, therefore, find the emails are protected by solicitor-client privilege and the DRPS is justified in withholding them. . Ontario Civilian Police Commission v Moreira
In Ontario Civilian Police Commission v Moreira (Div Court, 2024) the Divisional Court considered an application under s.33 of the Public Inquiries Act, specifically whether particular materials covered by a subpoena were solicitor-client privileged.
This was an oppourtunity for the court to apply CJA s.21(2)(c) ['Composition of court for hearings']:[1] This is an application by way of stated case under s. 33 of the Public Inquiries Act, 2009, SO 2009, c 33, Sch 6.
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[4] With counsel’s concurrence the Associate Chief Justice of the Superior Court of Justice, as delegate of the Chief Justice of the Superior Court of Justice, has directed this proceeding to be heard by a single judge pursuant to her authority under s. 21 (2)(c) of the Courts of Justice Act, RSO 1990, c C.43.
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