R. v. Campbell (J.) and Shirose (S.), (1999) 237 N.R. 86 (SCC)

• Judge: Major, Bastarache and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 22, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 237 N.R. 86 (SCC);119 OAC 201;[1999] 1 SCR 565;24 CR (5th) 365;[1999] SCJ No 16 (QL);133 CCC (3d) 257;237 NR 86;1999 CanLII 676 (SCC);[1999] CarswellOnt 949;JE 99-883;43 OR (3d) 256;[1999] ACS no 16;171 DLR (4th) 193;41 WCB (2d) 412

R. v. Campbell (J.) (1999), 237 N.R. 86 (SCC)

MLB Headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [1999] N.R. TBEd. AP.019

John Campbell and Salvatore Shirose (appellants) v. Her Majesty The Queen (respondent)

(25780)

Indexed As: R. v. Campbell (J.) and Shirose (S.)

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé,

Gonthier, Cory, McLachlin, Iacobucci,

Major, Bastarache and Binnie, JJ.

April 22, 1999.

Summary:

Undercover R.C.M.P. officers sold 50 kilograms of hashish to the accused (Campbell and Shirose) after protracted negotiations. The accused paid $270,000 and were immediately arrested. The "reverse sting" operation was approved by the R.C.M.P. hierarchy and Crown legal advice that the operation was not illegal. The accused were convicted of conspiracy to traffic in a narcotic and conspiracy to pos­sess a narcotic for the purpose of trafficking. Campbell was sentenced to nine years' im­prisonment. Shirose was sentenced to six years' imprisonment. The trial judge also ordered forfeiture of the $270,000 under s. 16 of the Narcotic Control Act. The accused appealed against conviction and sentence. The accused claimed that the reverse sting was illegal and an abuse of process warrant­ing a stay of the proceedings; that the Crown failed to prove the conspiracies alleged in the indictment; that the trial judge wrongly excluded evidence on the basis of solicitor-client privilege; and that hearsay evidence was improperly used for its truth.

The Ontario Court of Appeal, in a judg­ment reported 96 O.A.C. 372, dismissed the conviction appeal. The "reverse sting" was illegal and deserved judicial condemnation, but this was not one of those clearest of cases warranting a stay. The Crown proved the conspiracies alleged and the hearsay evidence was properly used for its truth. The court stated that the trial judge erred in excluding certain evidence based on solici­tor-client privilege, but the court dismissed this ground of appeal on the basis that there was no miscarriage of justice (Criminal Code, s. 686(1)(b)(iii)). The court affirmed the periods of imprisonment, but struck the forfeiture order, which was made without jurisdiction where the accused were charged under the Criminal Code, not the Narcotic Control Act. The accused appealed.

The Supreme Court of Canada allowed the appeal and ordered a new trial. The "reverse sting" operation was illegal. In determining whether to grant a stay of proceedings for abuse of process, the "good faith" of police was in issue. Solicitor-client privilege was waived and the legal advice given to police respecting "(1) The legality of the police posing as sellers of drugs to persons believed to be distributors of drugs. (2) The legality of the police offering drugs for sale to per­sons believed to be distributors of drugs. (3) The possible consequences to the members of the RCMP who engaged in one or both of the above, including the likeli­hood of prose­cution." must be disclosed. The new trial was limited to the issue of whether a stay of proceedings should be granted for abuse of process. The guilt of the accused was no longer a live issue.

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See Evidence - Topic 4253.3 ].

Criminal Law - Topic 205.1

Common law defences - Entrapment - Requirement of reasonable suspicion or a bona fide investigation - The Supreme Court of Canada restated that "there is entrapment when, (a) the authorities pro­vide a person with an opportunity to com­mit an offence without acting on a rea­sonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry; (b) although having such a reasonable sus­picion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence" - See paragraph 21.

Criminal Law - Topic 253

Abuse of process - What constitutes - The accused were convicted of conspiracy charges following an illegal "reverse sting" operation by police, where police sold 50 kilograms of hashish to the accused for $270,000 - The accused sought a stay of proceedings on the ground that police conduct was an abuse of process - The appellate court held that notwithstanding the court did not condone such illegal conduct, there was no abuse of process warranting judicial intervention - The court noted, inter alia, that the narcotics remained under police control, unproclaimed legislation would permit the police to do what was illegal, the police testified that they acted on legal advice that the sting was legal, and the illegal activity was aimed only at high level drug dealers, with no danger of entrapping innocent citizens - This was not one of those clearest of cases where the public conscience would be shocked by permit­ting the convictions to stand - The Supreme Court of Canada ordered a new trial limited to whether a stay should be granted - Where the "good faith" of police was put in issue by the police, the legal advice as to legality should have been disclosed to the accused and taken into consideration as one of the factors in determining whether to grant a stay - See paragraphs 15 to 79.

Criminal Law - Topic 253

Abuse of process - What constitutes - The Supreme Court of Canada restated the standard formulation of the test for abuse of process: "there is a residual discretion in a trial court to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of 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. ... this is a power which can be exercised only in the 'clearest of cases'" - See paragraph 20.

Criminal Law - Topic 255

Abuse of process - Power of court - Pre­vention and remedies - Stay of proceed­ings - [See second Criminal Law - Topic 253 ].

Criminal Law - Topic 2647

Conspiracies - Elements of offence - The accused claimed the Crown failed to prove a conspiracy as set out in the indictment, where they proved only a smaller con­spiracy which was different in time and place than that set out in the indictment - The Ontario Court of Appeal held that the trial judge did not err in finding a con­spiracy satisfying the test in R. v. Douglas and Doris (1991), 122 N.R. 1 (S.C.C.) - The Crown need not prove the involve­ment of every member alleged to be part of the conspiracy - The Crown must prove that the conspiracy involved some of the accused, that it occurred at some time within the time frame alleged in the in­dict­ment and that it had as its object the type of crime alleged - The Supreme Court of Canada dismissed this ground of appeal where the accused "was clearly able to ascertain the conspiracy alleged against him from a plain reading of the indict­ment" - See paragraph 16.

Crown - Topic 2846

Crown immunity - Agents - Police - Un­dercover R.C.M.P. officers conducted an illegal "reverse sting" operation aimed solely at high level drug dealers - The accused sought a stay of proceedings for abuse of process - The Supreme Court of Canada rejected an argument that the police were protected by Crown immunity as agents of the Crown - Even if police were Crown agents for limited purposes, immunity would not be available where, as here, the police stepped outside the lawful ambit of their agency by engaging in illegal conduct - Further, immunity under a general "law enforcement justification" would run counter to fundamental consti­tu­tional principles - The court left for future resolution whether police would be immune from criminal or civil liability when acting in an emergency or other exigent circumstances - See paragraphs 27 to 41.

Crown - Topic 2846

Crown immunity - Agents - Police - [See Police - Topic 3116 ].

Evidence - Topic 4236

Witnesses - Privilege - Lawyer-client communications - When privilege may be invoked - [See Evidence - Topic 4251 ].

Evidence - Topic 4251

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Communications respecting crime - R.C.M.P. officers consulted with Crown counsel respecting the legality of a pro­posed "reverse sting" operation aimed at high level drug dealers - The Ontario Court of Appeal, assuming that a solicitor-client relationship existed, stated since the "reverse sting" operation was illegal, the communications with the Crown involved discussion of a future crime and privilege did not attach - The Supreme Court of Canada stated that since solicitor-client privilege was waived by the police putting their "good faith" reliance on the legal advice in issue, it was unnecessary to resolve whether privilege was lost under the "future crimes and fraud" exemption - Absent waiver, the correct procedure would have been as follows: "any papers documenting the legal advice ... ought to be provided in the first instance to the trial judge. If he or she were satisfied, either on the basis of the documents themselves or on the basis of the documents supple­mented by other evidence, that the docu­mented advice could be fairly said in some way to have facilitated the crime, the documents would then be provided to the [accused]. If the lawyer had merely advised about the legality of the operation, and thereby made himself neither dupe nor conspirator in the facilitation of the crime, the proper course would have been to return the papers to the RCMP." - See paragraphs 46 to 64.

Evidence - Topic 4253.3

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - To permit full answer and defence - The Supreme Court of Canada stated that "an exception to the rule of confidentiality of solicitor-client privilege may arise where adherence to that rule would have the effect of preventing the accused from making full answer and defence. ... As stated, the present appeal is decided on the basis of waiver of solicitor-client privilege and I leave for another day the decision whether, in the 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 and, if so, in what circum­stances." - See paragraphs 65 to 66.

Evidence - Topic 4256

Witnesses - Privilege - Lawyer-client communications - Waiver - Putting com­munication in issue - R.C.M.P. officers consulted with Crown counsel respecting the legality of a proposed "reverse sting" operation aimed at high level drug dealers - The accused sought a stay of proceed­ings for abuse of process based on illegal police conduct - The police testified as to their "good faith" reliance on the legal advice - The legal advice was not dis­closed on the basis of solicitor-client privilege - The Supreme Court of Canada held that the privilege was waived by the police putting their good faith in issue - The court ordered disclosure of the rel­evant advice and a retrial limited to the issue of whether, taking into account that advice, a stay of proceedings should be granted for abuse of process - See para­graphs 46 to 75.

Police - Topic 3115

Powers - Investigation - Illegal police activity - Effect of - The accused sub­mitted that illegal police activity, by itself, constituted an abuse of process warranting judicial intervention - The Ontario Court of Appeal stated that the commission of illegal acts by police was "one of the considerations, and not a determinative one" - The court referred to Supreme Court of Canada precedent (R. v. Mack) that the court was "not willing to lay down an absolute rule prohibiting the involve­ment of the state in illegal conduct" - The Supreme Court of Canada held that "the effect of police illegality on an application for a stay of proceedings depends very much on the facts of a particular case" - Illegal conduct was one of the factors to be considered - A stay was not automatic - See paragraphs 23 to 24.

Police - Topic 3116

Powers - Investigation - Illegal police activity - What constitutes - Undercover R.C.M.P. officers conducted a "reverse sting" operation aimed solely at high level drug dealers - The officers had one ton of hashish for sale and eventually sold 50 kilograms to the accused for $270,000 - The Ontario Court of Appeal held that the reverse sting was illegal - The officers were not Crown agents by statute, nor did the Crown exercise sufficient de jure con­trol over R.C.M.P. activities to justify a finding of Crown agency at common law -Accordingly, the officers were not immune as Crown agents - Further, the only statu­tory exclusion from criminal liability was limited to possession (Narcotic Control Act Regulations) - Proposed legislation would have made the offering to sell exempt from criminal liability under controlled circum­stances, but the legislation was not yet proclaimed - The Supreme Court of Canada affirmed that the "reverse sting" operation was, at that time, illegal - See paragraphs 15 to 41.

Cases Noticed:

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1; 29 C.R.(4th) 1, refd to. [para. 1].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173; [1989] 1 W.W.R. 577; 44 C.C.C.(3d) 513; 67 C.R.(3d) 1, appld. [para. 8].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289; 70 C.R.(3d) 209, refd to. [para. 9].

R. v. Showman, [1988] 2 S.C.R. 893; 90 N.R. 262, refd to. [para. 9].

R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., [1983] 2 S.C.R. 551; 50 N.R. 120; 1 O.A.C. 243; 4 D.L.R.(4th) 193; 8 C.C.C.(3d) 449, appld. [para. 12].

R. v. Douglas and Douris, [1991] 1 S.C.R. 301; 122 N.R. 1; 47 O.A.C. 1; 63 C.C.C.(3d) 29, appld. [para. 16].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 18].

Roncarelli v. Duplessis, [1959] S.C.R. 121; 16 D.L.R.(2d) 289, refd to. [para. 18].

Canada (Attorney General) v. Lavell, [1974] S.C.R. 1349, refd to. [para. 18].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; [1985] 6 W.W.R. 127; 21 C.C.C.(3d) 7; 20 D.L.R.(4th) 651; 47 C.R.(3d) 193, appld. [para. 20].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122; 32 C.R.R. 269; 40 C.C.C.(3d) 481; 62 C.R.(3d) 349; [1988] 4 W.W.R. 97, refd to. [para. 20].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277; 61 C.C.C.(3d) 300; 2 C.R.(4th) 53, refd to. [para. 20].

R. v. V.T., [1992] 1 S.C.R. 749; 134 N.R. 289; 7 B.C.A.C. 81; 15 W.A.C. 81; 71 C.C.C.(3d) 32, refd to. [para. 20].

R. v. Potvin (R.), [1993] 2 S.C.R. 880; 155 N.R. 241; 66 O.A.C. 81; 83 C.C.C.(3d) 97, refd to. [para. 20].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; [1996] 2 W.W.R. 153; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1; 29 W.C.B.(2d) 152, refd to. [para. 20].

R. v. Bond (W.C.) (1993), 135 A.R. 329; 33 W.A.C. 329 (C.A.), leave to appeal refused, [1993] 3 S.C.R. v; 164 N.R. 77; 162 A.R. 139; 83 W.A.C. 139, refd to. [para. 24].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 25].

R. v. Lee and Mancuso (1989), 35 Q.A.C. 118; 51 C.C.C.(3d) 380 (C.A.), leave to appeal refused [1990] 2 S.C.R. viii; 121 N.R. 160; 36 Q.A.C. 279, refd to. [para. 25].

R. v. Manchur, [1978] 4 W.W.R. 481 (Sask. C.A.), refd to. [para. 25].

R. v. Sherman (1977), 36 C.C.C.(2d) 207 (B.C.C.A.), refd to. [para. 25].

McCleave v. Moncton (City) (1902), 32 S.C.R. 106, refd to. [para. 29].

Enever v. R. (1906), 3 C.L.R. 969 (Aust. H.C.), refd to. [para. 30].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671; 78 C.L.L.C. 14,181, refd to. [para. 31].

Ridge v. Baldwin, [1964] A.C. 40 (H.L.), refd to. [para. 31].

New South Wales (Attorney General) v. Perpetual Trustee Co., [1955] A.C. 457 (P.C.), refd to. [para. 32].

R. v. Metropolitan Police Commissioner; Ex parte Blackburn, [1968] 1 All E.R. 763 (C.A.), refd to. [para. 33].

R. v. Creswell (F.A.), [1998] B.C.T.C. Uned. 794 (S.C.), refd to. [para. 34].

Jane Doe v. Board of Police Commis­sioners of Metropolitan Toronto et al. (1989), 58 D.L.R.(4th) 396 (Ont. H.C.), affd. (1990), 40 O.A.C. 161; 74 O.R.(2d) 225 (Div. Ct.), refd to. [para. 34].

Perrier v. Sorgat (1979), 25 O.R.(2d) 645 (Co. Ct.), refd to. [para. 34].

Rutherford v. Swanson et al., [1993] 6 W.W.R. 126; 139 A.R. 19 (Q.B.), dis­agreed with [para. 34].

R. v. Canadian Broadcasting Corp., C.B.O.F.T. Television Station and Boissay, [1983] 1 S.C.R. 339; 47 N.R. 19, appld. [para. 37].

R. v. Salvador, Wannamaker, Campbell and Nunes (1981), 45 N.S.R.(2d) 192; 86 A.P.R. 192; 59 C.C.C.(2d) 521 (C.A.), refd to. [para. 40].

Cunningham v. Neagle (1890), 135 U.S. 1 (U.S. Sup. Ct.), refd to. [para. 40].

Baucom v. Martin (1982), 677 F.2d 1346 (11th Cir.), refd to. [para. 40].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1; 14 C.C.C.(3d) 385; 13 D.L.R.(4th) 1; [1984] 6 W.W.R. 289; 42 C.R.(3d) 113, refd to. [para. 41].

R. v. Lore (V.) (1997), 116 C.C.C.(3d) 255 (Que. C.A.), refd to. [para. 42].

R. v. Matthiessen (C.B.) (1995), 172 A.R. 196 (Q.B.), refd to. [para. 42].

R. v. Xenos (1991), 70 C.C.C.(3d) 362 (Que. C.A.), refd to. [para. 42].

R. v. Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112; 67 C.C.C.(3d) 289, refd to. [para. 49].

Jones v. Smith (1999), 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161 (S.C.C.), refd to. [para. 49].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462; 141 D.L.R.(3d) 590; 70 C.C.C.(2d) 385, refd to. [para. 49].

Upjohn Co. v. United States (1981), 449 U.S. 383, refd to. [para. 50].

Minter v. Priest, [1929] 1 K.B. 655 (C.A.), refd to. [para. 50].

Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise Commis­sioners (No. 2), [1972] 2 All E.R. 353 (C.A.), refd to. [para. 50].

Lindsay, In Re (1998), 158 F.3d 1263 (D.C. Cir.), refd to. [para. 52].

Girouard v. Canada (Attorney General) (1982), 68 C.C.C.(2d) 261 (B.C.S.C.), refd to. [para. 53].

R. v. Ladouceur, [1992] B.C.J. No. 2854 (S.C.), refd to. [para. 53].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 105 D.L.R.(3d) 745; 50 C.C.C.(2d) 495, refd to. [para. 55].

R. v. Cox and Railton (1884), 14 Q.B.D. 153, refd to. [para. 56].

O'Rourke v. Darbishire, [1920] A.C. 581 (H.L.), refd to. [para. 59].

State ex rel. North Pacific Lumber Co. v. Unis (1978), 579 P.2d 1291 (Or.), refd to. [para. 60].

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; 8 C.R.(4th) 277, refd to. [para. 65].

R. v. Dunbar (1982), 68 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 65].

R. v. Gray (1992), 74 C.C.C.(3d) 267 (B.C.S.C.), refd to. [para. 65].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117; 83 D.L.R.(4th) 193, refd to. [para. 65].

L.L.A. v. Beharriell, [1995] 4 S.C.R. 536; 190 N.R. 329; 88 O.A.C. 241; 103 C.C.C.(2d) 92; 130 D.L.R.(4th) 422; 44 C.R.(4th) 91, refd to. [para. 65].

Rogers v. Bank of Montreal, [1985] 4 W.W.R. 508 (B.C.C.A.), refd to. [para. 69].

United States v. Exxon Corp. (1981), 94 F.R.D. 246 (U.S. Dist. Ct. D.C.), refd to. [para. 69].

R. v. Pearson (E.), [1998] 3 S.C.R. 620; 233 N.R. 367, appld. [para. 78].

Statutes Noticed:

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, sect. 36 [para. 36].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 2, sect. 4 [para. 24].

Narcotic Control Act Regulations (Can.), C.R.C. 1978, c. 1041, sect. 3(1)(g) [para. 26].

Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sect. 5(1) [para. 28]; sect. 37 [para. 19].

Authors and Works Noticed:

Choo, A., Abuse of Process and Judicial Stays of Criminal Proceedings (1993), pp. 107 to 118 [para. 46].

Dicey, A.V., The Law of the Constitution (8th Ed. 1926), generally [para. 18].

Greaney, G., Crossing the Constitutional Line: Due Process and the Law Enforce­ment Justification (1992), 67 Notre Dame L. Rev. 745, pp. 784, 787 [para. 40].

Halsbury's Laws of England (1981) (4th Ed. - Reissue), vol. 36, p. 107 [para. 67].

Restatement of the Law (Third), The Law Governing Lawyers (Proposed Final Draft No. 1) (1996), § 124 [para. 52].

Scott, F.R., Civil Liberties and Canadian Federalism (1959), p. 48 [para. 18].

The Future Crime or Tort Exception to Communications Privilege (1964), 77 Harv. L. Rev. 730, pp. 730 to 731 [para. 58].

Wigmore on Evidence (McNaughton Rev. 1961), vol. 8, § 2292 [para. 49].

Counsel:

Alan D. Gold, for the appellant, John Campbell;

Irwin Koziebrocki, for the appellant, Salvatore Shirose;

Robert W. Hubbard, Fergus C. O'Donnell and John North, for the respondent.

Solicitors of Record:

Gold & Fuerst, Toronto, Ontario, for the appellant, John Campbell;

Irwin Koziebrocki, Toronto, Ontario, for the appellant, Salvatore Shirose;

Attorney General of Canada, Toronto, Ontario, for the respondent.

This appeal was heard on May 28, 1998, before Lamer, C.J.C., L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada.

On April 22, 1999, Binnie, J., delivered the following judgment in both official lang­uages for the Supreme Court of Canada.