Protecting privilege, for everyone

Mike Rutigliano was a police officer. He was charged with various criminal offences including obstruct, breach of trust and fraud. As a result of a ruling related to a pre-trial motion the Crown stayed the proceedings. The Crown then appealed from that stay: 2015 ONCA 452.

Rutigliano was working for the OPP and was, at the time, responsible for the courts bureau at the Toronto detachment. An RCMP investigation uncovered ties between Rutigliano and organized crime individuals. As a result of a suspicious bank transaction he became the subject of an investigation.  As part of the investigation the police obtained four Part VI authorizations.

One of the pre-trial motions launched was an abuse of process motion seeking a stay of proceedings. The allegation of abuse related to the pursuit and obtainment of wiretap authorizations. In short, the abuse surrounded the actions of the police in their use of potentially privileged communications contrary to the Part VI authorization. The court outlined it this way:

Contrary to the wiretap authorization, his telephone communications were not live monitored but were automatically recorded and retained. The computer system was not set up in a way that would have permitted live monitoring. Summaries of intercepted solicitor calls were provided to the investigative team through daily call logs. Investigators examined communications with solicitors after they had been classified as “privileged” without obtaining a court order for access. Hundreds of presumptively privileged communications were intercepted and recorded. Summaries of intercepts with solicitors that should not have been intercepted were recorded, stored and disseminated to investigators. Summaries of the content of solicitor calls were relied on in an application to unseal some of the information gleaned from the first wiretap. In one case, although a live monitor warned that a communication with a solicitor was about to be intercepted through a room probe, an investigator listened to the entire call, knowing it was presumptively privileged.
In early 2009, the Commissioner of the OPP waived any privilege attached to any communications between Rutigliano and any Crown Attorney for the period January 1, 2004 to February 11, 2009. Investigators took this as authority to listen to and record all such communications and to access any such previous communications without obtaining court permission, although the wiretap authorizations forbade this practice. The waiver would have supported an order to unseal those communications, but did not authorize their interception or examination. Again, this conduct was said to be supported by legal advice. [@16 and 18].

The defence sought to explore this “privileged advice” about how to handle the wiretaps as part of its abuse of process motion. The motion judge ordered the communications between the investigators and the Crown to be produced for his inspection, despite the assertion by the Crown that it was covered by solicitor-client privilege.

The Crown then stayed the proceeding and appealed.

The first issue on appeal was whether the appeal itself was an abuse of process. The court held that it was not. Citing United States of America v. Fafalios, 2012 ONCA 365 the court accepted that such a decision by the Crown could be permissible if: (1) the effect of the interlocutory ruling is to leave the Crown without a case, or (2) “compliance with the interlocutory order raises a reasonable prospect of harm to an interest the court deems worthy of protection”. [@34].

In this case the criteria were satisfied: I accept that, in the circumstances of this case, there was a reasonable prospect that continuing with the proceeding would have resulted in an abrogation of solicitor-client privilege, which is an interest worthy of legal protection. [@37].

The second issue was whether the privileged had been waived by officers during their testimony on the motion – by indicating they had advice from the Crown. The court agreed with the motion judge that privileged had not been waived. Part of the reason was that the individual officers lacked the authority to waive the privilege, but the court also noted:

The motion judge further held that, quite apart from the authority-to-waive issue, officers’ responses to questions in cross-examination about why they undertook the course of action they did was not sufficient to trigger a waiver of solicitor-client privilege. As witnesses, the officers were bound to answer the questions put to them and this could not amount to waiver of solicitor-client privilege. [@40].

A third issue dealt with on appeal was whether the ruling – aside from the merits of the issue – was premature or unnecessary. The court concluded that it was:

I agree with the Crown’s position that, in the circumstances, the disclosure order was premature. Even if it is open to a court to order disclosure of privileged communications between the Crown and police in the abuse of process context, the Supreme Court has made it clear that solicitor-client privilege should only be abrogated as a last resort.
In my view, the motion judge erred in ordering production of privileged materials prematurely and absent a finding of necessity, that is to say, a finding that there was no other way of establishing an abuse of process and obtaining a stay. He should have waited until at least the end of the abuse of process motion, and applied the R v. Babos test for abuse of process, at para. 32, without the privileged information. [@50 and 59].

The appeal was allowed and the matter remitted to the motion judge. Rutigliano is a very interesting case and the court’s ruling offers some helpful guidance on this issue. It is interesting – and important – to track the court’s handling of solicitor-client privilege in a way that is uniform regardless of whom the client is. This important privilege must be respected by the courts and this ruling goes a long way toward that end.