R v Rutigliano: Solicitor-Client Privilege and Abuse of Process
How are courts to deal with instances where solicitor-client privilege and the right to full answer and defence – both principles of fundamental justice, protected under section 7 of the Charter – come into conflict? More specifically, can solicitor-client privilege between the Crown and police be abrogated in a criminal proceeding, so that the accused may prove abuse of process?
This issue was most recently raised before the Ontario Court of Appeal in R v Rutigliano, 2015 ONCA 452 [Rutigliano]. In that case, the accused brought an abuse of process motion, seeking a stay of proceedings and disclosure of documents relating to the alleged abuse of process, including those over which the Crown had asserted solicitor-client privilege. Writing for the Court, Justice Pardu declined to weigh in on whether solicitor-client privilege over police-Crown Attorney communication should give way in abuse of process proceedings, and allowed the appeal on other grounds. The decision was not appealed to the Supreme Court of Canada.
Although this issue arises only in exceptional circumstances, it remains an important, unanswered question in the common law. This brief analysis will survey the competing approaches adopted by appellate and trial level courts across Canada, and briefly analyze what implications they might have for the evolving state of the law on this point.
By way of a brief background, the abuse of process doctrine provides that a court retains “a residual discretion […] to stay proceedings where compelling an accused to stand trial would violate those principle of fundamental justice which underlie the community’s sense of fair play and decency, and to prevent the abuse of a court’s process through oppressive or vexatious proceedings” (R v Jewitt,  2 SCR 128 at para 20, citing R v Young (1984), 46 OR (2d) 520 (Ont CA)). This is usually raised in the context of alleged police or prosecutorial misconduct.
Solicitor-Client Privilege, the “Innocence at Stake” Exception, and Abuse of Process Motions
Solicitor-client privilege occupies a fundamental role in Canadian law, having evolved from a rule of evidence to a substantive and constitutionally protected right. For this reason, it may only be overridden where it comes into conflict with other equally significant rights and protections, and only through narrow and well-defined exceptions.
Relevant for the purpose of this analysis is the “innocence at stake” exception, which was set out by the Supreme Court of Canada in R v McClure, 2001 SCC 14 [McClure] and R v Brown, 2002 SCC 32 [Brown]. This exception allows privileged communications to be set aside where a person’s innocence is at stake, so as to give effect to the accused’s right to make full answer and defence. The framework for this exception has been defined by Justice Major in Brown (para 4) as follows:
To satisfy the threshold test, the accused must establish that:
- The information he seeks from the solicitor-client communication is not available from any other source; and
- He is otherwise unable to raise a reasonable doubt.
If the threshold has been satisfied, the judge should proceed to the innocence at stake test, which has two stages.
- Stage #1: The accused seeking production of the solicitor-client communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt.
- Stage #2: If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused.
It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) is stricter than that in the first stage (could raise a reasonable doubt).
If the innocence at stake test is satisfied, the judge should order disclosure of the communications that are likely to raise a reasonable doubt […].
While it is clear that this exception operates at the “guilt/innocence” phase of the trial, its application in other related proceedings – like abuse of process motions – remains unclear. In R v Campbell,  1 SCR 565 [Campbell], Justice Binnie left for another day “the decision whether, in absence of waiver, full answer and defence considerations may themselves operate to compel the disclosure of solicitor-client privilege of communication in an abuse of process proceeding.” Two years later, Justice Major expanded on the innocence at stake exception in McClure, noting as follows:
…the judge must decide whether the communication is likely to raise a reasonable doubt as to the guilt of the accused. In most cases, this means that, unless the solicitor-client communication goes directly to one of the elements of the offence, it will not be sufficient to meet this requirement. Simply providing evidence that advances ancillary attacks on the Crown’s case (e.g., by impugning the credibility of a Crown witness, or by providing evidence that suggests that some Crown evidence was obtained unconstitutionally) will very seldom be sufficient to meet this requirement. (at para 58)
While the articulation of the innocence at stake exception in McClure all but closed the door completely on an exception to solicitor-client privilege in the context of an abuse of process motion, the application of the law on this point remains ambiguous. In Rutigliano, Justice Pardu noted that appellate and trial courts have come to competing conclusions as to whether the innocence at stake exception (or full answer and defence considerations more broadly) are sufficient to override a claim of privilege with respect to communications between the police and the Crown.
The British Columbia Court of Appeal adopted an expansive interpretation of the innocence at stake exception in R v Creswell, 2000 BCCA 583 [Creswell], with Justice Ryan (for a unanimous Court) holding that “innocence at stake includes defending a charge on the basis that unfair treatment of the accused disentitles the Crown to carry on with the prosecution of the charge,” particularly given the constitutional force of the right to full answer and defence.
While this decision was decided one year prior to Justice Major’s narrow characterization of the innocence at stake exception in McClure, the “Creswell doctrine” was adopted in a number of post-McClure decisions. For example, Justice Donald of the British Columbia Court of Appeal dealt with the tension between these two decisions in R v Castro, 2001 BCCA 507, concluding that Creswell remains good law, and limited the McClure holding to its facts. Justice Hill of the Ontario Superior Court of Justice came to a similar conclusion in hearing Mr. Rutigliano’s application to stay the charges against him, stating as follows:
In my view, in the context of abuse of process, full answer and defence considerations, or full-answer-and-defence-like concerns, must be interpreted taking into account the gravity of an abuse of process for the integrity of the justice system. It is surely no stretch of the notion of ‘wrongful conviction’ to include conviction of an accused person where he or she is compelled to stand trial in circumstances sufficiently shocking as to violate those fundamental principles of justice which underlie the community’s sense of fair play and decency such as to amount to an abuse of process of the court. Accordingly, in terms of full answer and defence, an accused person must, as a fundamental right, be afforded a real and meaningful opportunity to present to the court proof of abuse of process. (R v Rutigliano, 2013 ONSC 6589 at para 160 [Rutigliano (Application Hearing)])
However, not all courts have followed this expansive approach to the innocence at stake exception. In R v Greenbird,  OJ No 4390 (Sup Ct J) at paras 54-55, Justice Belleghem held that McClure “makes it clear that innocence at stake does not expand to relief for constitutional violations”, and is instead limited to “matters of substance relating to ‘guilt or innocence.’” This approach was also adopted by the Newfoundland and Labrador Supreme Court in R v Appleby, 2006 NLTD 180, and the Alberta Court of Appeal in R v Schacher, 2003 ABCA 313 [Schacher], where Justice Ritter stated as follows:
Privilege should not be set aside where the underlying document establishes that evidence was obtained unconstitutionally. As abuse of process is subsumed in the Charter, evidence obtained as a result of that abuse is evidence that has been obtained unconstitutionally. While McClure does not completely close the door on constitutional defences being the basis for waiver of privilege, it states that ancillary attacks on the Crown’s case will very seldom be sufficient to meet the requirement of the evidence likely raising a reasonable doubt as to the accused’s guilt. When something is seldom done, and that something is a subset of something else that is rarely done, then doing the thing must be reserved for extremely unusual situations, and in the context of entrapment, must be reserved for the most egregious and shocking conduct. (at para 28) [emphasis added]
In this way, Justice Ritter followed the McClure approach in severely limiting the scope for overriding solicitor-client outside of the factual innocence context.
Uncertainty, and the Way Forward
Whether solicitor-client privilege can (or should) yield to permit the defence to prove abuse of process remains uncertain in Canadian law, with appellate and trial level courts coming to opposite conclusions. Important considerations lie on both sides of this debate, and an appropriate solution to this vexing question would therefore involve a careful weighing of the rights and interests of both the accused and the Crown.
On one hand, privileged communications between the police and the Crown may be a key source of evidence for the accused in succeeding in having the charges stayed, particularly since the power to stay proceedings on the basis of an abuse of process is to be exercised “only in the clearest of cases.” This, coupled with the fact that the state does “not enjoy constitutional rights, but rather [is] charged with protecting the constitutional rights of individuals,” militates in favour of a more robust recognition of the right to make full answer and defence.
On the other hand, the Supreme Court of Canada has recognized the importance for police to have access to “to professional legal advice in connection with criminal investigations without the chilling effect of potential disclosure of their confidences in subsequent proceedings” (Campbell at para 49). Moreover, in a comment on the Rutigliano (Application Hearing) decision, Justice Michelle Fuerst et al noted that an expansive application of the “Creswell doctrine” may additionally “embolden applications to unearth the content of legal advice” without a legitimate and proper basis. (See: Justice Michelle Fuerst, Justice Michal Fairburn and Scott Fenton, Police Powers Newsletter, December 1, 2013.) These countervailing concerns weigh heavily against non-disclosure.
With competing jurisprudence and conflicting principles of fundamental justice at play, this question is ripe for consideration by Canada’ highest court.