R. v. Dickson (R.) et al., (2014) 597 A.R. 313 (PC)

• Jurisdiction: Alberta
• Court: Provincial Court of Alberta (Canada)
• Judge: Andreassen, P.C.J.
• Citation: (2014), 597 A.R. 313 (PC),2014 ABPC 233
• Date: 17 October 2014

R. v. Dickson (R.) (2014), 597 A.R. 313 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. OC.103

Robbie Dickson and Carolyn Buffalo (applicant) v. Her Majesty the Queen (respondent)

(110427036P1; 2014 ABPC 233)

Indexed As: R. v. Dickson (R.) et al.

Alberta Provincial Court

Andreassen, P.C.J.

October 17, 2014.

Summary:

Buffalo and Dickson (the accused) were jointly charged under the Tobacco Tax Act with possessing or storing tobacco that was not marked for tax sale and possessing more than the allowed quantities without the necessary licenses or permits (ss. 4(1) and 4.1). Dickson was further charged with importing tobacco without a licence (s. 7). Lucas was separately charged under s. 7, but the proceedings against him were stayed following settlement discussions. Lucas would be testifying at the accuseds' trial. The accused applied for the production of documents relating to the settlement discussions between Lucas and the Crown. The Crown submitted that the documents were privileged.

The Alberta Provincial Court allowed the application in part.

Barristers and Solicitors - Topic 1641

Relationship with client - Confidential communications - General - [See second Evidence - Topic 4258 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See all Evidence - Topic 4245 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production (disclosure) - [See all Evidence - Topic 4245 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See all Evidence - Topic 4245 ].

Evidence - Topic 4106

Witnesses - Privilege - Waiver of privilege - [See both Evidence - Topic 4258 ].

Evidence - Topic 4164

Witnesses - Privilege - Communications - General - Privileged communications - Elements of - [See third Evidence - Topic 4245 ].

Evidence - Topic 4168

Witnesses - Privilege - Communications - General - Requirement of confidentiality - [See third Evidence - Topic 4245 ].

Evidence - Topic 4232

Witnesses - Privilege - Lawyer-client communications - Requirement of confidential communication - [See third Evidence - Topic 4245 ].

Evidence - Topic 4236

Witnesses - Privilege - Lawyer-client communications - When privilege may be invoked - [See both Evidence - Topic 4258 ].

Evidence - Topic 4245

Witnesses - Privilege - Lawyer-client communications - Privilege - Offers of settlement or settlement negotiations - The Alberta Provincial Court discussed resolution privilege (also referred to as settlement negotiation privilege or plea bargain privilege) - The court stated that "There is no requirement that an actual plea agreement be made. If there is an agreement, the privilege survives the agreement. The privilege is a class privilege, and unless an exception is made to the privilege to address an interest more important than encouragement of settlements, the discussions and communications are shielded from disclosure to third parties or the court. The right to make full answer and defence can override the privilege, but only where a combination of likely relevance and other factors outweighs the interest in encouraging settlements. Likely relevance means that the information is logically probative of an issue, or affects credibility on a material point. The information sought to be disclosed does not have to be admissible." - The court listed factors favouring and precluding disclosure - See paragraphs 81 to 84.

Evidence - Topic 4245

Witnesses - Privilege - Lawyer-client communications - Privilege - Offers of settlement or settlement negotiations - Buffalo and Dickson (the accused) and Lucas were all charged with offences under the Tobacco Tax Act - The offences arose out of the same series of events - The proceedings against Lucas were stayed following settlement discussions - Lucas would be testifying at the accuseds' trial - The accused applied for the production of documents relating to the settlement discussions - The Crown submitted the documents were protected by resolution privilege - The Alberta Provincial Court, in determining whether the documents were "likely relevant" so as to set aside privilege, stated "I am mindful that [Lucas] was always going to be compelled to testify, and this is not a case where he has agreed to facts and agreed to testify and in return the Crown agreed to some favourable result for him. This weakens the impeachment value considerably, and correspondingly weakens its importance in making full answer and defence and the imperative in making an exception to privilege." - See paragraph 92.

Evidence - Topic 4245

Witnesses - Privilege - Lawyer-client communications - Privilege - Offers of settlement or settlement negotiations - Buffalo and Dickson (the accused) and Lucas were all charged with offences under the Tobacco Tax Act - The offences arose out of the same series of events - The proceedings against Lucas were stayed following settlement discussions - Lucas would be testifying at the accuseds' trial - The accused applied for the production of documents relating to the settlement discussions - The Alberta Provincial Court held that the documents were protected by resolution privilege because (1) a litigious dispute existed when the discussions were held; (2) Lucas, through his counsel, provided information to the Crown with the intention that it not be disclosed to the court if negotiations failed; and (3) the purpose of the discussions was to attempt to resolve the charges against Lucas, not to frighten him into adopting a story that could be used against the accused - However, portions of the discussions were sufficiently connected to the essential elements of the offences and to possible defences that their likely relevance overrode the privilege - Those portions had to be disclosed - If the only use of the information had been to impeach Lucas in general, as opposed to on a material issue, then the "likely relevance" exception to resolution privilege would not have applied - See paragraphs 85 to 99.

Evidence - Topic 4253.3

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - To permit full answer and defence - [See all Evidence - Topic 4245 ].

Evidence - Topic 4258

Witnesses - Privilege - Lawyer-client communications - Waiver - By disclosure - Buffalo and Dickson (the accused) and Lucas were all charged with offences under the Tobacco Tax Act - The offences arose out of the same series of events - The proceedings against Lucas were stayed following settlement discussions - Lucas would be testifying at the accuseds' trial - The accused applied for the production of documents relating to the settlement discussions between counsel for Lucas (Hladun) and the Crown - Lucas wanted the identities of a lawyer he had earlier consulted and a third party to be kept confidential - The Crown submitted that solicitor-client privilege applied - The Alberta Provincial Court found that solicitor-client privilege applied to the identities so long as that information stayed between Lucas and Hladun - However, once such information was relayed to the Crown prosecutor, it was no longer subject to solicitor-client privilege - Hladun's request that the identities remain confidential did not limit the waiver of the privilege - See paragraphs 35 to 55.

Evidence - Topic 4258

Witnesses - Privilege - Lawyer-client communications - Waiver - By disclosure - The Alberta Provincial Court stated that "Solicitor-client privilege is a substantive rule of law. It is neither created by nor dependent on the agreement between the lawyer and an outsider. Once it has been waived, it cannot be re-created or resurrected by agreement between the lawyer and an outsider. A different kind of privilege (negotiation or resolution privilege) may apply; but once the client authorizes the lawyer to share information outside the relationship and the lawyer does so, solicitor-client privilege no longer applies." - See paragraph 53.

Cases Noticed:

R. v. Derose (A.S.) et al. (2000), 264 A.R. 359; 2000 ABPC 67, refd to. [para. 13].

R. v. Bernardo, [1994] O.J. No. 1718 (Gen. Div.), dist. [para. 16].

La Souveraine, Compagnie d'assurance générale v. Autorité de marché financiers (2013), 451 N.R. 113; 2013 SCC 63, refd to. [para. 17].

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; 103 C.C.C.(3d) 1, refd to. [para. 24].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, appld. [para. 26].

R. v. Delorme (G.), [2005] Northwest Terr. Cases 34; 2005 NWTSC 34, refd to. [para. 27].

R. v. Fosty and Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112, refd to. [para. 28].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to. [para. 35].

R. v. Schacher (D.G.) (2003), 339 A.R. 119; 312 W.A.C. 119; 2003 ABCA 313, refd to. [para. 39].

R. v. Brown (J.D.) (2002), 285 N.R. 201; 157 O.A.C. 1; 2002 SCC 32, refd to. [para. 39].

R. v. Griffin (J.M.) (2009), 485 A.R. 251; 2009 ABQB 696, refd to. [para. 40].

R. v. Trang (D.) et al. (2002), 323 A.R. 297; 2002 ABQB 744, refd to. [para. 44].

R. v. Prentice (1914), 23 C.C.C. 436 (Alta. C.A.), refd to. [para. 45].

PSC Industrial Services Canada Inc. et al. v. Thunder Bay (City) et al., [2006] O.T.C. Uned. 262; 2006 CarswellOnt 1392 (Sup. Ct. Master), refd to. [para. 47].

Dorchak v. Krupka (1997), 196 A.R. 81; 141 W.A.C. 81 (C.A.), refd to. [para. 48].

Canadian Natural Resources Ltd. v. ShawCor Ltd. et al. (2014), 580 A.R. 265; 620 W.A.C. 265; 2014 ABCA 289, refd to. [para. 48].

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General) (1998), 218 A.R. 229 (Q.B.), affd. (2000), 255 A.R. 86; 220 W.A.C. 86 (C.A.), affd. [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 164 O.A.C. 280; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 2002 SCC 61, refd to. [para. 49].

Costello and Dickhoff v. Calgary (City) (1997), 209 A.R. 1; 160 W.A.C. 1 (C.A.), appld. [para. 58].

Middelkamp et al. v. Fraser Valley Real Estate Board et al. (1992), 17 B.C.A.C. 134; 29 W.A.C. 134; 96 D.L.R.(4th) 227 (C.A.), refd to. [para. 61].

Sable Offshore Energy Inc. et al. v. Ameron International Corp. et al. (2013), 446 N.R. 35; 332 N.S.R.(2d) 1; 1052 A.P.R. 1; 2013 SCC 37, refd to. [para. 62].

R. v. Bernard (K.M.) (2002), 392 A.R. 204; 2002 ABQB 747, refd to. [para. 68].

R. v. Levin (E.) (2014), 585 A.R. 176; 2014 ABQB 113, refd to. [para. 75].

R. v. Taing (N.) (2011), 520 A.R. 27; 2011 ABPC 165, refd to. [para. 76].

R. v. Wong (T.) (2003), 344 A.R. 310; 2003 ABPC 110, refd to. [para. 90].

R. v. Legrande (R.H.) et al. (2014), 575 A.R. 355; 612 W.A.C. 355; 2014 ABCA 192, refd to. [para. 90].

Counsel:

J. Falconer and J. Roy, for the applicant, Carolyn Buffalo;

J. De Whytell, for the applicant, Robbie Dickson;

R. Tibbitt and S. Brown, Q.C., for the respondent.

This application was heard on March 3-6 and 24, 2014, before Andreassen, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for decision at Wetaskiwin, Alberta, on October 17, 2014.