R. v. Barros (R.), 2010 ABCA 116

• Judge: Berger, Watson and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 28, 2009
• Citations: 2010 ABCA 116;(2010), 477 A.R. 127 (CA)

R. v. Barros (R.) (2010), 477 A.R. 127 (CA);

      483 W.A.C. 127

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. AP.066

Her Majesty the Queen (appellant) v. Ross Barros (respondent) and Director of Public Prosecutions (intervenor)

(0703-0183-A; 0803-0014-A; 2010 ABCA 116)

Indexed As: R. v. Barros (R.)

Alberta Court of Appeal

Berger, Watson and Slatter, JJ.A.

April 15, 2010.

Summary:

Sgt. Brezinski obtained a search warrant to search Qureshi's home. The information that justified the search warrant was obtained, in part, from a confidential police informer. As a result of the searches, drug and weapons charges were laid against Qureshi. Qureshi's counsel retained Barros, a private investigator and former police officer, to assist in raising a defence. Barros decided to discover the identity of the informer. He asked Qureshi's associates to provide him with their cell phone numbers or submit to a polygraph test if they did not do so. He also confronted individuals, telling them that he knew they were the informer. When Barros was satisfied that he had identified the informer, he met with Sgt. Brezinski to tell him that he had discovered that identity. Barros told Sgt. Brezinski that he had not advised Qureshi's counsel of the informer's name at that point, but if the prosecution proceeded he would have to do so. He indicated that in his invariable experience, the result in such situations was that the Crown would withdraw the charges. Barros was charged that he: (1) attempted to obstruct, pervert or defeat the course of justice by taking investigative steps to identify a confidential police source for the purpose of interfering with criminal proceedings against Qureshi, contrary to s. 139(2) of the Criminal Code; (2) with intent to obtain an end to criminal proceedings against Qureshi, by threats, accusation, menaces or violence induced or attempted to induce Sgt. Brezinski to take steps to cease criminal proceedings against Qureshi, thereby committing extortion contrary to s. 346(1.1)(b) of the Code; and (3) with intent to obtain information regarding the identity of a confidential police source, by threats, accusation, menaces or violence induced or attempted to induce five named individuals and others unknown to provide personal information including cellular telephone numbers, thereby committing extortion, contrary to s. 346(1.1)(b) of the Code.

The Alberta Court of Queen's Bench, in a decision reported at [2007] A.R. Uned. 512, granted Barros' application for a directed verdict of not guilty on the first count. The trial judge concluded that Barros was constitutionally entitled to take investigative steps to identify the informer, that the offence of obstruction should be narrowly defined, and that his acts were not criminal in nature. Barros was subsequently acquitted of the other two charges. On the first extortion count, the trial judge concluded that the Crown had not proven the objective of "ending criminal proceedings" as set out in the indictment. She also concluded that the Crown had not proven a recognized legal threat, nor an intention to accomplish anything by a threat. Finally she concluded that the Crown had not negated a justification or excuse for Barros' conduct. On the second extortion count, the trial judge concluded that the Crown had not proven a threat, nor the intention required for extortion. Again she found that Barros had a legal "justification or excuse" for what he did. The Crown appealed the directed verdict and the acquittals.

The Alberta Court of Appeal, Berger, J.A., dissenting, allowed the appeal and directed a new trial on all three counts.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Barros, a private investigator, was retained by defence counsel in a criminal case to assist in raising a defence - Barros was charged with obstruction of justice and two counts of extortion arising from his attempts to identify a confidential police informer in the criminal case - The trial judge directed a verdict of not guilty on the obstruction charge and subsequently acquitted Barros of the extortion charges - The Crown appealed - Barros argued that (1) the privilege that attached to the identity of informers enabled the Crown to keep the information secret, but it did not prevent Barros from trying to discover that information independently, because he had an independent right to do so; (2) the privilege only prevailed within the courtroom, possibly binding only justice system participants, and it did not restrain the collection of information about the informer outside the courtroom; and (3) there was no rule that prevented him from discovering the identity of the informer as part of mounting a full answer and defence, and any attempt to prevent that would likely be unconstitutional - The Alberta Court of Appeal rejected the arguments - The court stated that "To summarize, there is no positive right in the accused to attempt to ascertain the identity of the informer. The right to make full answer and defence does not extend that far. There is no justification for limiting the operation of the privilege to the courtroom; to be effective it must operate in the community at large" - See paragraphs 38 to 62.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Barros, a private investigator, was retained by defence counsel in a criminal case to assist in raising a defence - Barros was charged with obstruction of justice and two counts of extortion arising from his attempts to identify a confidential police informer in the criminal case - The trial judge directed a verdict of not guilty on the obstruction charge and subsequently acquitted Barros of the extortion charges - The Crown appealed - Barros argued that there was no rule that prevented him from discovering the identity of the informer as part of mounting a full answer and defence, and that any attempt to prevent that would likely be unconstitutional - Barros suggested that a rule could not be laid down that would prevent an accused from establishing the "innocence at stake" exception - The Alberta Court of Appeal rejected the argument - First, it was a given that guilt or innocence was an issue in every trial, but that did not mean that "innocence at stake" was always an issue - To say that innocence was always at stake would allow the exception to overtake the rule, and was inconsistent with the Supreme Court of Canada decisions on informer privilege - Secondly, there was a limited role for self-help in this area - Thirdly, the privilege in question belonged to the Crown and the informer - No one else could waive the privilege - The assertion that the accused had an unrestrained right to attempt to identify the informer in effect amounted to asserting that the accused could negate (if not waive) the privilege - See paragraphs 55 to 62.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See both Civil Rights -Topic 3133 ].

Criminal Law - Topic 230

General principles - Statutory defences or exceptions - Justification or excuse - Drug and weapons charges were laid against Qureshi - Qureshi's counsel retained Barros, a private investigator, to assist in raising a defence - Barros decided to discover the identity of a confidential police informer in the case - When Barros was satisfied that he had identified the informer, he met with Sgt. Brezinski to tell him that he had discovered that identity - Barros told Sgt. Brezinski that he had not advised Qureshi's counsel of the informer's name at that point, but if the prosecution proceeded he would have to do so - He indicated that in his experience the result in such situations was that the Crown would withdraw the charges - Barros was charged that he committed extortion "with intent to obtain an end to criminal proceedings against Irfan Qureshi" by using threats "to induce Sgt. Kevin Brezinski to take steps to cease criminal proceedings against Irfan Qureshi", contrary to s. 346 (1.1)(b) of the Criminal Code - The trial judge held, inter alia, that the Crown had not proven the absence of any "reasonable justification or excuse" for Barros' conduct as provided for in s. 346(1) - The Alberta Court of Appeal allowed a Crown appeal and directed a new trial - There was nothing on the record that disclosed a "reasonable justification or excuse" recognized at law - See paragraphs 94 to 99.

Criminal Law - Topic 230

General principles - Statutory defences or exceptions - Justification or excuse - Drug and weapons charges were laid against Qureshi - Qureshi's counsel retained Barros, a private investigator, to assist in raising a defence - Barros decided to discover the identity of a confidential police informer in the case - He asked Qureshi's associates to provide him with their cell phone numbers or submit to a polygraph test if they did not do so - He also confronted individuals, telling them that he knew they were the informer - When Barros was satisfied that he had identified the informer, he met with Sgt. Brezinski to tell him that he had discovered that identity - Barros told Sgt. Brezinski that he had not advised Qureshi's counsel of the informer's name at that point, but if the prosecution proceeded he would have to do so - He indicated that in his experience the result in such situations was that the Crown would withdraw the charges - Barros was charged that he committed extortion by using threats to induce five named individuals and others unknown to provide personal information, including cellular telephone numbers, with intent to obtain information regarding the identity of a confidential police source - The trial judge acquitted Barros, concluding, inter alia, that he had a "justification or excuse" for what he did - The trial judge stated that "Barros' overall approach with respect to this, that is to say he was going to the police, he was not going to be telling anybody else, he was going to let the police know of how serious a situation this was and that it was necessary to ensure that no one would get hurt" - The Alberta Court of Appeal allowed a Crown appeal and directed a new trial - The court stated that "these factors are in no sense a justification; they are indeed essential components of the scheme of extortion" - See paragraph 111.

Criminal Law - Topic 522

Offences against the administration of law and justice - Obstructing or perverting course of justice - Attempting to obstruct justice - Qureshi faced drug and weapons charges - His counsel retained Barros, a private investigator, to assist in raising a defence - Barros decided to discover the identity of a confidential police informer in the case - When Barros was satisfied that he had identified the informer, he met with Sgt. Brezinski to tell him that he had discovered that identity - Barros told Sgt. Brezinski that he had not advised Qureshi's counsel of the informer's name at that point, but if the prosecution proceeded he would have to do so - He indicated that in his experience the result in such situations was that the Crown would withdraw the charges - Barros was charged with attempting to obstruct, pervert or defeat the course of justice by taking investigative steps to identify a confidential police source for the purpose of interfering with criminal proceedings against Qureshi, contrary to s. 139(2) of the Criminal Code - The trial judge directed a verdict of not guilty - The trial judge stated that "The doing of a lawful act, here identifying a police informant, does not in itself constitute an obstruction of justice; at the most, it might constitute preparation for an attempt to obstruct justice if the information concerning the police informant is used in a way which tends to obstruct the administration of justice" - The Alberta Court of Appeal held that the directed verdict was in error and ordered a new trial - Categorizing what Barros did as the "mere taking of investigative steps" understated the facts, and was an error of law - The court stated, inter alia, that "Since one of the purposes of the informer privilege is to encourage other informers to report crime, undermining the privilege by attempting to identify an informer prima facie amounts to obstruction, absent a reasonable justification or excuse. It does so in two ways: it necessarily intimidates the actual informer, and it discourages potential informers and witnesses. The 'investigative steps' themselves could, as alleged, amount to an attempt to obstruct justice"- See paragraph 68.

Criminal Law - Topic 522

Offences against the administration of law and justice - Obstructing or perverting course of justice - Attempting to obstruct justice - Qureshi faced drug and weapons charges - His counsel retained Barros, a private investigator, to assist in raising a defence - Barros decided to discover the identity of a confidential police informer in the case - When Barros was satisfied that he had identified the informer, he met with Sgt. Brezinski to tell him that he had discovered that identity - Barros told Sgt. Brezinski that he had not advised Qureshi's counsel of the informer's name at that point, but if the prosecution proceeded he would have to do so - He indicated that in his experience the result in such situations was that the Crown would withdraw the charges - Barros was charged with attempting to obstruct, pervert or defeat the course of justice by taking investigative steps to identify a confidential police source for the purpose of interfering with criminal proceedings against Qureshi, contrary to s. 139(2) of the Criminal Code - The trial judge directed a verdict of not guilty - The Alberta Court of Appeal held that the directed verdict was in error and ordered a new trial - The trial judge's categorization of what Barros did as the "mere taking of investigative steps" understated the facts, and was an error of law - The court stated, inter alia, that "The charge was attempting to obstruct justice, with 'taking investigative steps' being a particular of how criminal proceedings would be interfered with. It is no answer to say that investigating is only preparatory, as that merely confirms that the particular was proven" - Barros also went well beyond the preparatory stage - Once he thought he had the informer's identity, he set up a meeting with Sgt. Brezinski to explain his "dilemma", i.e., if the charges were not dropped, Barros would have to report the informer's name to Qureshi's counsel - See paragraph 69.

Criminal Law - Topic 523

Offences against the administration of law and justice - Obstructing or perverting course of justice - What constitutes - Drug and weapons charges were laid against Qureshi - Qureshi's counsel retained Barros, a private investigator, to assist in raising a defence - Barros decided to discover the identity of a confidential police informer in the case - When Barros was satisfied that he had identified the informer, he met with Sgt. Brezinski to tell him that he had discovered that identity - Barros told Sgt. Brezinski that he had not advised Qureshi's counsel of the informer's name at that point, but if the prosecution proceeded he would have to do so - He indicated that in his experience the result in such situations was that the Crown would withdraw the charges - Barros was charged with attempting to obstruct, pervert or defeat the course of justice by taking investigative steps to identify a confidential police source for the purpose of interfering with criminal proceedings against Qureshi, contrary to s. 139(2) of the Criminal Code - The trial judge directed a verdict of not guilty - The Alberta Court of Appeal held that the directed verdict was in error and ordered a new trial - Barros' overall course of conduct, taken collectively, could arguably amount to an obstruction of justice - That conduct included arranging meetings of all of Qureshi's confederates, obtaining their cell phone records, hinting at the possibility of polygraph tests, and confronting individuals and asserting that he knew they were the informer - The court stated that "Instilling fear in an identified group, knowing that some of them might be actual or potential witnesses, with a view to discouraging any cooperation with the judicial system would be obstructionist and unjustified. Using the information, once found, to pressure the Crown to stay charges is also arguably obstruction. The object could be to pervert the course of justice by preventing an adjudication on the merits" - See paragraph 73.

Criminal Law - Topic 523

Offences against the administration of law and justice - Obstructing or perverting course of justice - What constitutes - [See first Criminal Law - Topic 522 and Criminal Law - Topic 528 ].

Criminal Law - Topic 528

Offences against the administration of law and justice - Obstructing or perverting course of justice - Intention or mens rea - Drug and weapons charges were laid against Qureshi - Qureshi's counsel retained Barros, a private investigator, to assist in raising a defence - Barros decided to discover the identity of a confidential police informer in the case - When Barros was satisfied that he had identified the informer, he met with Sgt. Brezinski to tell him that he had discovered that identity - Barros told Sgt. Brezinski that he had not advised Qureshi's counsel of the informer's name at that point, but if the prosecution proceeded he would have to do so - He indicated that in his experience the result in such situations was that the Crown would withdraw the charges - Barros was charged with attempting to obstruct, pervert or defeat the course of justice by taking investigative steps to identify a confidential police source for the purpose of interfering with criminal proceedings against Qureshi, contrary to s. 139(2) of the Criminal Code - The trial judge directed a verdict of not guilty - The Alberta Court of Appeal held that the directed verdict was in error and ordered a new trial - Trying to disrupt a prosecution by corrupt means was obstruction - Wilfully suggesting that the identity of an informer might inevitably come out if a prosecution was pursued was a corrupt means - The court stated that "Wilfully suggesting that the information might be released unless a prosecution is halted is obstruction. The evidence here could support an inference that [Barros'] comments to Sgt. Brezinski were wilful and calculated to convey such suggestions, and could thus establish the mens rea required for obstruction" - See paragraph 70.

Criminal Law - Topic 1752

Offences against property - Extortion - What constitutes - Drug and weapons charges were laid against Qureshi - Qureshi's counsel retained Barros, a private investigator, to assist in raising a defence - Barros decided to discover the identity of a confidential police informer in the case - When Barros was satisfied that he had identified the informer, he met with Sgt. Brezinski to tell him that he had discovered that identity - Barros told Sgt. Brezinski that he had not advised Qureshi's counsel of the informer's name at that point, but if the prosecution proceeded he would have to do so - He indicated that in his experience the result in such situations was that the Crown would withdraw the charges - Barros was charged that he committed extortion "with intent to obtain an end to criminal proceedings against Irfan Qureshi" by using threats "to induce Sgt. Kevin Brezinski to take steps to cease criminal proceedings against Irfan Qureshi" - The trial judge acquitted Barros, holding that the particular, "to obtain an end to criminal proceedings", was not proven - She concluded that the essence of the meeting between Barros and Sgt. Brezinski was about bail, not ending the charges - She noted that Barros never explicitly stated that he wanted the charges dropped - The Alberta Court of Appeal held that the trial judge's conclusion that the discussions were about bail was a reviewable error - Any inferential connection to bail was overwhelmed by the direct, uncontradicted evidence that the purpose of the meeting was to have the charges dropped - The trial judge was influenced by the fact that Barros never expressly stated he would keep the informer's identity secret if the charges were dropped - However, the law of extortion did not require that the threat be overt and clumsy - Subtle threats and menaces were enough - The message was conveyed by Barros giving examples of what had happened in other cases where an informer was identified - See paragraphs 80 to 85.

Criminal Law - Topic 152

Offences against property - Extortion - What constitutes - Drug and weapons charges were laid against Qureshi - Qureshi's counsel retained Barros, a private investigator, to assist in raising a defence - Barros decided to discover the identity of a confidential police informer in the case - When Barros was satisfied that he had identified the informer, he met with Sgt. Brezinski to tell him that he had discovered that identity - Barros told Sgt. Brezinski that he had not advised Qureshi's counsel of the informer's name at that point, but if the prosecution proceeded he would have to do so - He indicated that in his experience the result in such situations was that the Crown would withdraw the charges - Barros was acquitted of a charge that he committed extortion "with intent to obtain an end to criminal proceedings against Irfan Qureshi" by using threats "to induce Sgt. Kevin Brezinski to take steps to cease criminal proceedings against Irfan Qureshi" - The trial judge found that the Crown had not proved that Barros threatened or menaced Sgt. Brezinski - The Alberta Court of Appeal held that the trial judge's conclusion reflected a reviewable error - The court stated that "a threat does not, in law, require that the threat be made to the same person who might suffer the evil consequences" - Barros' message was that if Sgt. Brezinski did not arrange to have the charges dropped, the informer's name might become public, and as a result he might be harmed - There was never a suggestion that Barros himself would cause any harm; the risk lay with members of Qureshi's group - This sort of indirect threat, whereby the potential victim might be harmed by third parties if the accused released certain information, was more than sufficient to constitute a threat or menace in law - See paragraphs 85 to 86.

Criminal Law - Topic 1752

Offences against property - Extortion - What constitutes - Drug and weapons charges were laid against Qureshi - Qureshi's counsel retained Barros, a private investigator, to assist in raising a defence - Barros decided to discover the identity of a confidential police informer in the case - When Barros was satisfied that he had identified the informer, he met with Sgt. Brezinski to tell him that he had discovered that identity - Barros told Sgt. Brezinski that he had not advised Qureshi's counsel of the informer's name at that point, but if the prosecution proceeded he would have to do so - He indicated that in his experience the result in such situations was that the Crown would withdraw the charges - Barros was acquitted of a charge that he committed extortion "with intent to obtain an end to criminal proceedings against Irfan Qureshi" by using threats "to induce Sgt. Kevin Brezinski to take steps to cease criminal proceedings against Irfan Qureshi" - The trial judge found that the Crown had failed to prove the intention of Barros to obtain anything by a threat - The Alberta Court of Appeal held that the trial judge's conclusion was a reviewable error - The clear inference was that Barros threatened to disclose the name of the informer, if the charges were not dropped and then "someone could get hurt" - Arguably, Barros' subjective expectation was that by pointing out to Sgt. Brezinski the consequences of him naming the informer, the desired result (the dropping of the charges) would follow - Those facts could amount to extortion - See paragraph 88.

Criminal Law - Topic 1752

Offences against property - Extortion - What constitutes - Drug and weapons charges were laid against Qureshi - Qureshi's counsel retained Barros, a private investigator, to assist in raising a defence - Barros decided to discover the identity of a confidential police informer in the case - He asked Qureshi's associates to provide him with their cell phone numbers or submit to a polygraph test if they did not do so - He also confronted individuals, telling them that he knew that they were the informer - Barros was charged that he committed extortion by using threats to induce five named individuals (including Kassam) and others unknown to provide personal information including cellular telephone numbers with intent to obtain information regarding the identity of a confidential police source - The trial judge acquitted Barros - The Alberta Court of Appeal allowed a Crown appeal and directed a new trial - The trial judge found that the Crown had not proven a threat by Barros, and the necessary intent to go with it, in part because there was evidence that Barros had tried to warn Kassam, and had suggested he get legal advice - However, a warning was not inconsistent with the charge of extortion - The court stated that "The warning to get independent legal advice was clearly aimed at the witness and his counsel pressuring the Crown to drop the charges. The 'warning' was that if [Barros] did not get his way, Kassam could get hurt. These 'warnings' are in no way mitigating, and indeed are essential parts of the offence (i.e., the threat) as charged and particularized" - See paragraph 106.

Criminal Law - Topic 1754

Offences against property - Extortion - Evidence - Barros, a private investigator, was charged that he committed extortion by using threats to induce five named individuals and others unknown to provide personal information, including cellular telephone numbers, with intent to obtain information regarding the identity of a confidential police source - The trial judge acquitted Barros - The trial judge held that the Crown could not prove the use of threats to induce the production of telephone numbers from those complainants who did not testify - The Alberta Court of Appeal stated that "This is an error of law. Whether there were threats might be proved from [Barros'] own statements, or by the evidence of others who were in attendance at the relevant meetings. Likewise the purpose or objective of any threats did not depend on the evidence of the complainants themselves. In order to make out the offence of extortion, the Crown does not have to prove that the threats were actually successful, and actually induced the complainant to succumb to the wishes of the extortionist. Extortion only requires an 'attempt' to accomplish the desired end. Therefore, the evidence of the complainants is not essential to prove the case" - See paragraph 102.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity or location of police informants - [See both Civil Rights - Topic 3133 ].

Cases Noticed:

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 27].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 27].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193; 22 O.R.(3d) 514 (C.A.), refd to. [para. 27].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142, refd to. [para. 27].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81, refd to. [para. 27].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255, refd to. [para. 27].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 28].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 28].

R. v. Cornell (J.M.) (2009), 454 A.R. 362; 455 W.A.C. 362; 6 Alta. L.R.(5th) 203; 2009 ABCA 147, refd to. [para. 28].

R. v. Shepherd (C.), [2009] 8 W.W.R. 193; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 309 D.L.R.(4th) 139; 2009 SCC 35, refd to. [para. 29].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 29].

R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126; 123 C.C.C.(3d) 225, refd to. [para. 30].

R. v. Bigras (E.), [2004] O.A.C. Uned. 426 (C.A.), refd to. [para. 30].

R. v. E.B. - see R. v. Bigras (E.).

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [paras. 32, 119].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 32].

R. v. Barros (R.), [2007] A.R. Uned. 432; 2007 ABQB 546, refd to. [para. 32].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 33].

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 247 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 35].

Named Person v. Vancouver Sun - see Vancouver Sun et al. v. Canada (Attorney General) et al.

R. v. Basi (U.S.) et al., [2009] 3 S.C.R. 389; 395 N.R. 240; 277 B.C.A.C. 305; 469 W.A.C. 305; 2009 SCC 52, refd to. [paras. 37, 121].

Bisaillon v. Keable et al., [1983] 2 S.C.R. 60; 51 N.R. 81, refd to. [para. 43].

R. v. Omar (A.) (2007), 221 O.A.C. 76; 84 O.R.(3d) 493; 218 C.C.C.(3d) 242; 2007 ONCA 117, refd to. [paras. 43, 89].

Autosurvey Inc. v. Prevost et al., [2005] O.T.C. 883; 44 C.P.R.(4th) 274 (Sup. Ct.), refd to. [para. 44].

Morneault v. Dynacorp Acquisition Ltd. et al., [2006] A.R. Uned. 735; 2006 ABQB 831, refd to. [para. 44].

Phillip v. Whitecourt General Hospital (2001), 290 A.R. 228; 92 Alta. L.R.(3d) 321 (Q.B.), refd to. [para. 44].

Stoodley v. Ferguson, [2001] A.R. Uned. 477; 93 Alta. L.R.(3d) 78; [2001] 8 W.W.R. 329 (Q.B.), refd to. [para. 44].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 45].

Royal Bank of Canada v. Lee and Fishman (1992), 127 A.R. 236; 20 W.A.C. 236; 3 Alta. L.R.(3d) 187; 9 C.P.C.(3d) 199 (C.A.), refd to. [para. 45].

Anderson Exploration Ltd. et al. v. Pan-Alberta Gas Ltd. (1998), 229 A.R. 191; 61 Alta. L.R.(3d) 38 (Q.B.), refd to. [para. 45].

R. v. Bruce Power Inc. et al. (2009), 254 O.A.C. 335; 2009 ONCA 573, refd to. [para. 45].

Elliott v. Toronto (City) (2001), 54 O.R.(3d) 472 (Sup. Ct.), refd to. [para. 45].

Tilley v. Hails (1993), 12 O.R.(3d) 306 (Gen. Div.), refd to. [para. 45].

Ontario (Attorney General) v. Gowling and Henderson (1984), 47 O.R.(2d) 449 (H.C.), refd to. [para. 45].

Ashburton (Lord) v. Pape, [1913] 2 Ch. 469, refd to. [para. 45].

United Kingdom (Attorney General) v. Observer Ltd. et al., [1990] 1 A.C. 109; 99 N.R. 241 (H.L.), refd to. [para. 45].

United Kingdom (Attorney General) v. Guardian Newspapers Ltd. (No. 2) - see United Kingdom (Attorney General) v. Observer Ltd. et al.

Derby & Co. et al. v. Weldon (No. 8), [1991] 1 W.L.R. 73; [1990] 3 All E.R. 762 (C.A.), refd to. [para. 45].

McPherson v. Institute of Chartered Accountants (B.C.), [1989] 2 W.W.R. 649 (B.C.C.A.), refd to. [para. 45].

T.L. v. Director of Child Welfare (Alta.) (2006), 395 A.R. 327; 58 Alta. L.R.(4th) 23; 2006 ABQB 104, refd to. [para. 47].

V.W. v. D.S., [1996] 2 S.C.R. 108; 196 N.R. 241, refd to. [para. 47].

R. v. Sappier (D.M.) et al., [2006] 2 S.C.R. 686; 355 N.R. 1; 309 N.B.R.(2d) 199; 799 A.P.R. 199; 2006 SCC 54, refd to. [para. 47].

R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 19 O.A.C. 25; 58 O.R.(2d) 737 (C.A.), refd to. [para. 47].

Syrek v. Minister of National Revenue et al. (2009), 387 N.R. 246; 307 D.L.R.(4th) 636; 2009 FCA 53, refd to. [para. 47].

R. v. Brown (J.D.), [2002] 2 S.C.R. 185; 285 N.R. 201; 157 O.A.C. 1; 2002 SCC 32, refd to. [para. 56].

R. v. Hirschboltz (G.A.) (2004), 243 Sask.R. 169; 2004 SKQB 17, refd to. [para. 60].

R. v. Santos, 2007 ONCJ 633, refd to. [para. 60].

R. v. Wijesinha (W.K.K.), [1995] 3 S.C.R. 422; 186 N.R. 169; 85 O.A.C. 241, refd to. [para. 66].

R. v. Guess (G.) (2000), 143 B.C.A.C. 51; 235 W.A.C. 51; 148 C.C.C.(3d) 321; 2000 BCCA 547, refd to. [para. 66].

R. v. Vermette, [1987] 1 S.C.R. 577; 74 N.R. 221; 77 A.R. 372; 32 C.C.C.(3d) 519, affing. (1983), 44 A.R. 253; 26 Alta. L.R.(2d) 1; 6 C.C.C.(3d) 97 (C.A.), refd to. [para. 68].

R. v. Kotch (1990), 114 A.R. 11; 61 C.C.C.(3d) 132 (C.A.), refd to. [para. 70].

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 72].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 81].

Wilde et al. v. Archean Energy Ltd. et al. (2007), 422 A.R. 41; 415 W.A.C. 41; 82 Alta. L.R.(4th) 203; 2007 ABCA 385, refd to. [para. 81].

R. v. Pritchard (D.M.) (2007), 238 B.C.A.C. 1; 393 W.A.C. 1; 217 C.C.C.(3d) 1; 2007 BCCA 82, affd. [2008] 3 S.C.R. 195; 381 N.R. 67; 261 B.C.A.C. 1; 440 W.A.C. 1; 2008 SCC 59, refd to. [para. 83].

R. v. Davison (1974), 20 C.C.C.(2d) 424; 6 O.R.(2d) 103 (C.A.), refd to. [para. 83].

R. v. Hodson (B.S.) (2001), 281 A.R. 76; 248 W.A.C. 76; 92 Alta. L.R.(3d) 262; 2001 ABCA 111, refd to. [para. 84].

R. v. McClure (1957), 22 W.W.R.(N.S.) 167; 118 C.C.C. 192 (Man. C.A.), refd to. [para. 84].

R. v. Schell (K.A.) (2004), 348 A.R. 306; 321 W.A.C. 306; 29 Alta. L.R.(4th) 214; 2004 ABCA 143, refd to. [para. 86].

R. v. Swartz (1977), 37 C.C.C.(2d) 409 (Ont. C.A.), refd to. [para. 86].

Pocklington Foods Inc. v. Alberta (Provincial Treasurer), [1993] 5 W.W.R. 710; 135 A.R. 363; 33 W.A.C. 363; 8 Alta. L.R.(3d) 429; 15 C.P.C.(3d) 331 (C.A.), refd to. [para. 90].

R. v. Royz (E.) (2008), 248 O.A.C. 361; 234 C.C.C.(3d) 426; 2008 ONCA 584, affd. [2009] 1 S.C.R. 423; 388 N.R. 1; 251 O.A.C. 397; 2009 SCC 13, refd to. [para. 91].

R. v. Natarelli, [1967] S.C.R. 539, refd to. [para. 94].

R. v. H.A. et al. (2005), 202 O.A.C. 54; 206 C.C.C.(3d) 233 (C.A.), refd to. [para. 94].

R. v. Gunn (P.B.) (1997), 193 A.R. 222; 135 W.A.C. 222; 113 C.C.C.(3d) 174 (C.A.), refd to. [para. 94].

R. v. Molis, [1980] 2 S.C.R. 356; 33 N.R. 411, refd to. [para. 94].

Smart v. R. et al. (1988), 68 Nfld. & P.E.I.R. 240; 209 A.P.R. 240 (Nfld. T.D.), refd to. [para. 118].

R. v. Hunter (1987), 19 O.A.C. 131; 57 C.R.(3d) 1 (C.A.), refd to. [para. 119].

R. v. Babes (G.) et al. (2000), 161 O.A.C. 386; 146 C.C.C.(3d) 465 (C.A.), refd to. [para. 125].

R. v. Davies (1982), 1 C.C.C.(3d) 299 (Ont. C.A.), refd to. [para. 126].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 139(2), sect. 139(3) [para. 64]; sect. 346(1) [para. 78].

Authors and Works Noticed:

American Law Institute, Restatement of the Law: the Law Governing Lawyers (2000), para. 105 [para. 44].

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman and Bryant: The Law of Evidence in Canada (3rd Ed. 2009), paras. 15.2, 15.72 [para. 51].

Cane, Peter, and Conaghan, Joanne, The New Oxford Companion to Law (2008), p. 1026 [para. 39].

Hubbard, Robert W., Magotiaux, Susan, and Duncan, Suzanne M., The Law of Privilege in Canada (2006 Looseleaf) (2007 Update, Release 1), generally [para. 126]; pp. 2-2 [para. 121, footnote 1]; 2-32.3 [para. 124].

Law Society of Alberta, Code of Professional Conduct, c. 4, rule 8, Commentary [para. 44].

Proulx, Michel, and Layton, David, Ethics and Canadian Criminal Law, pp. 200, 201 [para. 44].

Counsel:

J.C. Robb, Q.C., for the appellant;

H.E. Wolch, Q.C., for the respondent;

N.L. Irving, for the intervener.

This appeal was heard on October 28, 2009, before Berger, Watson and Slatter, JJ.A., of the Alberta Court of Appeal. The judgment of the Court of Appeal was filed on April 15, 2010, including the following opinions:

Slatter, J.A. (Watson, J.A., concurring) - see paragraphs 1 to 114;

Berger, J.A., dissenting - see paragraphs 115 to 153.