R. v. Campbell, [1999] 1 S.C.R. 565
John Campbell and Salvatore Shirose Appellants
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Campbell
File No.: 25780.
1998: May 28; 1999: April 22.
Present: Lamer C.J. and L’Heureux‐Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for ontario
Criminal law -- Abuse of process -- Stay of proceedings -- Reverse sting operation involving police “sale” of illegal drugs to drug organization executives -- Whether reverse sting operation abuse of process -- Narcotic Control Act, R.S.C., 1985, c. N-1, ss. 2 “traffic”, 4 -- Narcotic Control Regulations, C.R.C., c. 1041, s. 3(1) -- Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, s. 37.
Evidence -- Privilege -- Solicitor-client privilege -- Reverse sting operation involving police “sale” of illegal drugs to drug organization executives -- RCMP officer consulting Department of Justice lawyer as to legality of planned reverse sting operation -- Claim made that reverse sting operation predicated on its being considered legal -- Defence wanting to test disclosure of legal advice received by RCMP -- Whether communications between RCMP and Department of Justice lawyer should be disclosed.
The RCMP were alleged to have violated the Narcotic Control Act by selling a large quantity of hashish to senior “executives” in a drug trafficking organization as part of a reverse sting operation. The appellants, as purchasers, were charged with conspiracy to traffic in cannabis resin and conspiracy to possess cannabis resin for that purpose. The trial judge found the appellants guilty as charged but, before sentencing, heard their motion for a stay of any further steps in the proceeding. The appellants argued that the reverse sting constituted illegal police conduct which “shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention”. The stay was refused by the courts below.
As part of their case for a stay the appellants sought, but were denied, access to the legal advice provided to the police by the Department of Justice on which the police claimed to have placed good faith reliance. The Crown’s position implied that the RCMP acted in accordance with legal advice.
At issue here is the effect, in the context of the “war on drugs”, of alleged police illegality on the grant of a judicial stay of proceedings, and related issues regarding the solicitor-client privilege invoked by the RCMP and pre-trial disclosure of solicitor-client communications to which privilege has been waived.
Held: The appeal should be allowed in part.
At this stage of the proceedings, the door is finally and firmly closed against both appellants on the question of guilt or innocence notwithstanding the contention of one appellant that the conspiracy alleged by the Crown, and encompassed in the indictment, was a larger agreement than his demonstrated involvement. The appellant was clearly able to ascertain the conspiracy alleged against him from a plain reading of the indictment as was required by the jurisprudence.
The effect of police illegality on an application for a stay of proceedings depends very much on the facts of a particular case. This case-by-case approach is dictated by the requirement to balance factors which are specific to each fact situation. Here, the RCMP acted in a manner facially prohibited by the Narcotic Control Act. Their motive in doing so does not matter because, while motive may be relevant for some purposes, it is intent, not motive, that is an element of a full mens rea offence.
A police officer investigating a crime occupies a public office initially defined by the common law and subsequently set out in various statutes and is not acting as a government functionary or as an agent. Here, the only issue was the status of an RCMP officer in the course of a criminal investigation and in that regard the police are independent of the control of the executive government.
Even if the police could be considered agents of the Crown for some purposes, and even if the Crown itself were not bound by the Narcotic Control Act, in this case the police stepped outside the lawful ambit of their agency, and whatever immunity was associated with that agency was lost. Parliament made it clear that the RCMP must act “in accordance with the law” and that illegality by the RCMP is neither part of any valid public purpose nor necessarily “incidental” to its achievement. If some form of public interest immunity is to be extended to the police to assist in the “war on drugs”, it should be left to Parliament to delineate the nature and scope of the immunity and the circumstances in which it is available.
Even if it should turn out here that the police acted contrary to the legal advice provided by the Department of Justice, there would still be no right to an automatic stay. The trial judge would still have to consider any other information or explanatory circumstances that emerge during the inquiry into whether the police or prosecutorial conduct “shocks the conscience of the community”. A police force that chooses to operate outside the law is not the same thing as a police force that made an honest mistake on the basis of erroneous advice. There was no reason to think the RCMP ignored the advice it was given, but as the RCMP did make an issue of the legal advice it received in response to the stay applications, the appellants were entitled to have the bottom line of that advice corroborated.
The RCMP must be able to obtain professional legal advice in connection with criminal investigations without the chilling effect of potential disclosure of their confidences in subsequent proceedings. Here, the officer’s consultation with the Department of Justice lawyer fell squarely within this functional definition, and the fact that the lawyer worked for an “in-house” government legal service did not affect the creation or character of the privilege. Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.
An exception to the principle of confidentiality of solicitor-client communications exists where those communications are criminal or else made with a view to obtaining legal advice to facilitate the commission of a crime. Here, the officer sought advice as to whether or not the operation he had in mind was lawful. The privilege is not automatically destroyed if the transaction turns out to be illegal.
Destruction of the solicitor-client privilege takes more than evidence of the existence of a crime and proof of an anterior consultation with a lawyer. There must be something to suggest that the advice facilitated the crime or that the lawyer otherwise became a “dupe or conspirator”. The RCMP, by adopting the position that the decision to proceed with the reverse sting had been taken with the participation and agreement of the Department of Justice, belatedly brought itself within the “future crimes” exception and put in question the continued existence of its privilege.
Another 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. Although the entire jeopardy of the appellants remained an open issue until disposition of the stay application, the appellants were not providing “full answer and defence” to the stay application. They were the moving parties of an application being defended by the Crown. The appellants’ initiative in launching a stay application does not, of itself, authorize a fishing expedition into solicitor-client communications to which the Crown is a party.
The RCMP put the officer’s good faith belief in the legality of the reverse sting in issue, and asserted its reliance upon his consultations with the Department of Justice to buttress that position. The RCMP thus waived the right to shelter the contents of that advice behind solicitor-client privilege. It is not always necessary for the client actually to disclose part of the contents of the advice in order to waive privilege to the relevant communications of which it forms a part. It was sufficient in this case for the RCMP to support its good faith argument by undisclosed advice from legal counsel in circumstances where, as here, the existence or non-existence of the asserted good faith depended on the content of that legal advice. Non-disclosure of information clearly relevant to the good faith reliance issue here cannot properly be disposed of by adverse inferences. The appellants were entitled to disclosure of legal advice with respect to: (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; and (3) the possible consequences to the members of the RCMP who engaged in one or both of the above, including the likelihood of prosecution. If there is a dispute concerning the adequacy of disclosure, the disputed documents or information should be provided by the Crown to the trial judge for an initial determination whether this direction has been complied with. The trial judge should then determine what, if any, additional disclosure should be made to the appellants.
Cases Cited
Applied: R. v. Mack, [1988] 2 S.C.R. 903; R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551; R. v. Douglas, [1991] 1 S.C.R. 301; R. v. Jewitt, [1985] 2 S.C.R. 128; Canadian Broadcasting Corp. v. The Queen, [1983] 1 S.C.R. 339; R. v. Pearson, [1998] 3 S.C.R. 620; disapproved: Rutherford v. Swanson, [1993] 6 W.W.R. 126; Re Girouard and the Queen (1982), 68 C.C.C. (2d) 261; considered: Rogers v. Bank of Montreal, [1985] 4 W.W.R. 508; referred to: R. v. Power, [1994] 1 S.C.R. 601; R. v. Lore, Sup. Ct., No. 500-01-013926-891, March 8, 1991; R. v. Conway, [1989] 1 S.C.R. 1659; R. v. Showman, [1988] 2 S.C.R. 893; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Roncarelli v. Duplessis, [1959] S.C.R. 121; Attorney General of Canada v. Lavell, [1974] S.C.R. 1349; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. Scott, [1990] 3 S.C.R. 979; R. v. T. (V.), [1992] 1 S.C.R. 749; R. v. Potvin, [1993] 2 S.C.R. 880; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Bond (1993), 135 A.R. 329, leave to appeal refused, [1993] 3 S.C.R. v; Lewis v. The Queen, [1979] 2 S.C.R. 821; R. v. Mancuso (1989), 51 C.C.C. (3d) 380, leave to appeal refused, [1990] 2 S.C.R. viii; R. v. Mamchur, [1978] 4 W.W.R. 481; R. v. Sherman (1977), 36 C.C.C. (2d) 207; McCleave v. City of Moncton (1902), 32 S.C.R. 106; Enever v. The King (1906), 3 C.L.R. 969; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Ridge v. Baldwin, [1964] A.C. 40; Attorney-General for New South Wales v. Perpetual Trustee Co., [1955] A.C. 457; R. v. Metropolitan Police Comr., Ex parte Blackburn, [1968] 1 All E.R. 763; R. v. Creswell, [1998] B.C.J. No. 1090 (QL); Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1989), 58 D.L.R. (4th) 396, aff’d (1990), 74 O.R. (2d) 225; Perrier v. Sorgat (1979), 25 O.R. (2d) 645; R. v. Salvador (1981), 59 C.C.C. (2d) 521; In re Neagle, 135 U.S. 1 (1890); Baucom v. Martin, 677 F.2d 1346 (1982); Perka v. The Queen, [1984] 2 S.C.R. 232; R. v. Lore (1997), 116 C.C.C. (3d) 255; R. v. Matthiessen (1995), 172 A.R. 196; R. v. Xenos (1991), 70 C.C.C. (3d) 362; R. v. Gruenke, [1991] 3 S.C.R. 263; Smith v. Jones, [1999] 1 S.C.R. 455; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Upjohn Co. v. United States, 449 U.S. 383 (1981); Minter v. Priest, [1929] 1 K.B. 655; Crompton (Alfred) Amusement Machines Ltd. v. Comrs. of Customs and Excise (No. 2), [1972] 2 All E.R. 353; In re Lindsey, 158 F.3d 1263 (1998); R. v. Ladouceur, [1992] B.C.J. No. 2854 (QL); Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Cox and Railton (1884), 14 Q.B.D. 153; O’Rourke v. Darbishire, [1920] A.C. 581; State ex rel. North Pacific Lumber Co. v. Unis, 579 P.2d 1291; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Dunbar (1982), 68 C.C.C. (2d) 13; R. v. Gray (1992), 74 C.C.C. (3d) 267; R. v. Seaboyer, [1991] 2 S.C.R. 577; A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; United States v. Exxon Corp., 94 F.R.D. 246 (1981).
Statutes and Regulations Cited
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 8.
Criminal Code, R.S.C., 1985, c. C-46, ss. 462.37 [ad. R.S.C., 1985, c. 42 (4th Supp.), s. 2], 686(1)(b)(iii), (2), (8).
Crown Liability and Proceedings Act, R.S.C., 1985 c. C-50, s. 36 [rep. S.C. 1990, c. 8, s. 32].
Department of Justice Act, R.S.C., 1985, c. J-2, s. 4.
Department of the Solicitor General Act, R.S.C., 1985, c. S-13.
Interpretation Act, R.S.C., 1985, c. I-21, s. 10.
Narcotic Control Act, R.S.C., 1985, c. N-1, ss. 2 “traffic”, 4.
Narcotic Control Regulations, C.R.C., c. 1041, s. 3(1).
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 5 [am. R.S.C., 1985, c. 8 (2nd Supp.), s. 2], 37 [rep. ibid., s. 16].
Authors Cited
Choo, Andrew L.-T. Abuse of Process and Judicial Stays of Criminal Proceedings. Oxford: Clarendon Press, 1993.
Dicey, A. V. Introduction to the Study of the Law of the Constitution, 8th ed. London: MacMillan & Co., 1927.
Greaney, Gail M. Note, “Crossing the Constitutional Line: Due Process and the Law Enforcement Justification” (1992) 67 Notre Dame L. Rev. 745.
Halsbury’s Laws of England, vol. 36, 4th ed. London: Butterworths, 1981.
Restatement of the Law Third, The Law Governing Lawyers, § 124 (Proposed Final Draft No. 1, 1996).
Scott, F. R. Civil Liberties & Canadian Federalism. The Plaunt Lectures, Carleton University, 1959. Toronto: University of Toronto Press, 1959.
“The Future Crime or Tort Exception to Communications Privileges” (1964), 77 Harv. L. Rev. 730.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.
APPEAL from a judgment of the Ontario Court of Appeal (1997), 32 O.R. (3d) 181, 96 O.A.C. 372, 115 C.C.C (3d) 310, 5 C.R. (5th) 391, [1997] O.J. No. 120 (QL), affirming a judgment of the Ontario Court (General Division), [1995] O.J. No. 431 (QL) denying the appellants’ application for a stay of proceedings. Appeal allowed in part.
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.
The judgment of the Court was delivered by
//Binnie J.//
1 Binnie J. – In this appeal the Court is asked to consider some implications of the constitutional principle that everyone from the highest officers of the state to the constable on the beat is subject to the ordinary law of the land. Here the police were alleged to have violated the Narcotic Control Act, R.S.C., 1985, c. N-1, by selling a large quantity of hashish (cannabis resin) to senior “executives” in a drug trafficking organization as part of what counsel called a “reverse sting” operation. The appellants, as purchasers, were charged with conspiracy to traffic in cannabis resin and conspiracy to possess cannabis resin for that purpose. The trial judge found the appellants guilty as charged but, before sentencing, heard the appellants’ motion for a stay of any further steps in the proceeding. The appellants argued that the reverse sting constituted illegal police conduct which “shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention” (see R. v. Power, [1994] 1 S.C.R. 601, at p. 615). The stay was refused by the courts below.
2 As part of their case for a stay the appellants sought, but were denied, access to the legal advice provided to the police by the Department of Justice on which the police claimed to have placed good faith reliance. The Crown indicated that the undisclosed advice assured the police, rightly or wrongly, that sale of cannabis resin in the circumstances of a reverse sting was lawful. The appellants argue that the truth of this assertion can only be tested by a review of the otherwise privileged communications.
3 We are therefore required to consider in the context of the “war on drugs”, the effect of alleged police illegality on the grant of a judicial stay of proceedings, and related issues regarding the solicitor-client privilege invoked by the RCMP and pre-trial disclosure of solicitor-client communications to which privilege has been waived.
Facts
4 In the autumn of 1991, the RCMP initiated a reverse sting operation involving undercover officers posing as large-scale hashish vendors. This operation was undertaken after Corporal Richard Reynolds of the RCMP became aware of the decision of the Quebec Superior Court in R. v. Lore (an unreported decision of Pinard J., March 8, 1991, No. 500-01-013926-891) which, in Cpl. Reynolds’ view, gave implicit approval to a reverse sting operation in which police offered to sell narcotics to suspected drug traffickers. Cpl. Reynolds contacted Mr. James Leising, an experienced senior lawyer employed by the Department of Justice in Toronto, to obtain professional advice as to the legality of a reverse sting operation. Seven or eight meetings were held between Cpl. Reynolds and the Department of Justice lawyer in relation to the proposed operation. In September of 1991, approval by senior RCMP officers was given to initiate the reverse sting. Using the help of a police informant, the police contacted two groups of potential purchasers through the appellant Shirose. Negotiations with these groups included showing the hashish to prospective purchasers. However, the RCMP was careful not to provide any samples, despite requests to do so. The hashish remained under the control of the RCMP at all times. The appellant Campbell eventually participated in the negotiations as a financier for one of the two groups and in January 1992, the appellant Campbell, with the help of the appellant Shirose, agreed to pay $270,000 for 50 kilograms of cannabis resin. The retail value of these drugs at street level, as found by the trial judge, was close to $1 million. Instead of receiving the expected 50 kilograms of cannabis resin in exchange for payment, however, the appellants were arrested and charged with conspiracy to traffic in cannabis resin and conspiracy to possess cannabis resin for the purpose of trafficking.
5 In advance of the trial, to support their submission that if convicted, the proceedings should be stayed, the appellants sought to subpoena Mr. Leising from the Department of Justice to testify about the communications that had occurred with Cpl. Reynolds with respect to the legality of the reverse sting operation. The trial judge quashed the subpoena on the grounds that the communications were protected by solicitor-client privilege and did not fall within one of the recognized exceptions. Subsequently, during the application to stay the proceedings, counsel for the appellants sought to examine Cpl. Reynolds on the content of his communications with the Department of Justice. Again the trial judge upheld the assertion of solicitor-client privilege and denied the appellants’ application to force disclosure of these communications. Based on the admissible evidence, the trial judge then dismissed the stay of proceedings application. The appellant Shirose was sentenced to six years in penitentiary. The appellant Campbell was sentenced to nine years in penitentiary, plus forfeiture of the purchase price paid to the police. The Court of Appeal dismissed the appellants’ appeal except to remit the issue of forfeiture to the trial judge to await an application by the Attorney General, if he sees fit to make it, for forfeiture of the purchase price under s. 462.37 of the Criminal Code, R.S.C., 1985, c. C-46.
Evidence of Police “Good Faith”
6 On the return of the stay motion, the Crown set out to establish that the police had at all stages acted in good faith and in the belief that the reverse sting was legal. At the application for a stay of proceedings hearing, counsel for the Crown questioned Cpl. Reynolds as follows:
Q. Was your project [the reverse sting operation] tailored on the outlines of the project or [sic] the Lore case?
A. Yes, sir.
Q. And it was your understanding as a result of the Lore case that that was lawful behaviour?
A. Yes, sir.
It emerged that Cpl. Reynolds had consulted the Department of Justice about the legality of the reverse sting. Appellants’ counsel pursued this issue with Cpl. Reynolds as follows:
Q. So to return then, based upon this [Lore] decision coming to your attention, did you also obtain any other advice regarding any concerns you might have had about this type of an operation?
A. Sought legal advice.
Q. And from whom did you seek legal advice?
A. The Department of Justice, Toronto.
Q. And was it one individual or more than one individual?
A. One individual.
Q. And who was that?
A. Mr. Leising.
The precise purpose of obtaining this legal advice came out under further questioning from appellants’ counsel, as follows:
Q. Now that you know what I am reading from sir, what I asked was, “The issues for which advice was sought concerned the propriety of the police posing as sellers of drugs to persons believed to be distributors of drugs.” Is that accurate?
A. That’s correct.
Q. “The propriety of the police offering hashish for sale to persons believed to be distributors of hashish.” Is that correct?
A. Yes, sir.
Q. “The release of a sample of hashish to certain of those persons.” Is that correct?
A. Yes, sir.
Q. “The possible consequences to the members who engaged in such conduct.” Is that correct?
A. Yes, sir.
...
Q. When you went to Mr. Leising, were you concerned about any of the members of your force who did engage in this operation, being prosecuted?
A. That would have been one of the issues.
Q. And then to return to Officer Plomp’s certificate, the last thing he said is, “and the issue of entrapment.” Was that one of the items on the agenda with Mr. Leising?
A. Yes, sir.
The Crown successfully objected to counsel for the appellants questioning Cpl. Reynolds with respect to the actual advice given because of the claim of solicitor-client privilege. The appellants’ counsel then attempted to use this objection to narrow the potential ambit of the Crown’s “good faith” argument:
So it is my respectful submission that the Crown certainly cannot argue that the police acted in good faith because they acted on legal advice, because we don’t know what legal advice they got. We don’t know what qualifications or conditions were attached. We don’t know whether they were told, ‘This is going to be illegal and you’re on your own. You’re at risk.’ We don’t know if they were told, ‘It’s illegal but don’t worry, we’ll never prosecute you.’
So, with respect, I certainly don’t want to hear the argument that, ‘Oh well, the police acted in good faith because they acted on legal advice.’ because then I would like to know what that advice was so I can see whether that’s true or not. So in my submission, if they are going to rely on solicitor/client privilege, then that issue has to drop completely out of the case.
THE COURT: Well I am sure the Crown will have something to say about that.
MR. GOLD: Well my suspicion is that they probably won’t because they might be aware that that might open the door to further proceedings to an argument for disclosure of it, but I guess I will have to wait and see Your Honour. [Emphasis added.]
Judgments
Ontario Court (General Division), [1995] O.J. No. 431 (QL)
Ruling on Application for Stay of Proceedings
7 Caswell J. divided her analysis of the stay application into two parts. In the first part, she dealt with the issue of entrapment as a sub-issue of the abuse of process doctrine. In the second part, she dealt with prosecutorial conduct more generally as giving rise to potential abuses of process.
8 In discussing entrapment, Caswell J. considered the judgment of this Court in R. v. Mack, [1988] 2 S.C.R. 903, in which Lamer J. (as he then was) pointed out that a stay of proceedings is not to be considered as a method of disciplining the police or the prosecution, but rather, that the Court is concerned with the larger issue of maintenance of public confidence in the judicial process. The trial judge noted that entrapment may be established where (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides, or (b) having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing a mere opportunity and actually induce the commission of an offence. Caswell J. held that the police had acted with reasonable suspicion with respect to both appellants. She noted that the appellant Shirose had been involved in a search for a large-scale supplier of hashish long before the RCMP began its operation. She considered that the appellant Campbell volunteered himself “out of the woodwork” and joined the conspiracy completely on his own initiative. As to the allegation that the RCMP had induced the commission of the offences, Caswell J. concluded, based on the criteria set out in Mack, that the police conduct had not induced the offence or otherwise gone beyond “the limits that society deems proper”. Accordingly, there was no entrapment on the facts of this case.
9 In considering the broader aspects of the doctrine of abuse of process, Caswell J. concluded that it was not necessary for her to decide whether or not the reverse sting operation was illegal. Instead, she posed the question whether this is one of the “clearest cases” in which the proceedings are so overwhelmingly unfair that to proceed would be contrary to the interests of justice. After reviewing various cases involving police conduct that did not result in stays of proceedings, and measuring the conduct of the police and Crown counsel in this case against the criteria set out in Mack, supra, R. v. Conway, [1989] 1 S.C.R. 1659, R. v. Showman, [1988] 2 S.C.R. 893, and Power, supra, Caswell J. concluded that it was in the interest of justice to proceed to enter the conviction and impose sentence. In her view, society would not be offended by the acts of the prosecution. Society would be offended by the imposition of a stay.
Court of Appeal for Ontario (1997), 32 O.R. (3d) 181
10 Carthy J.A. disagreed with the conclusion of the trial judge that it was not necessary to determine the legality of the police conduct. Also basing himself on the judgment of Lamer J. in Mack, supra, Carthy J.A. considered that police illegality was an important factor to be weighed in evaluating an accused’s claim of abuse of process and, indeed, he considered that illegality may in certain instances be determinative.
11 After setting out the relevant portions of the Narcotic Control Act, Carthy J.A. noted that the Narcotic Control Regulations, C.R.C., c. 1041, s. 3(1), saves the police harmless where possession of a narcotic results from sting operations. There is no corresponding regulation giving the police immunity when they are offering to sell a narcotic. Carthy J.A. concluded that the RCMP’s offer to sell a narcotic to the appellants constituted trafficking, and that it was irrelevant that the RCMP had no intention of completing the sale. Therefore, on the face of the statute, the conduct of the RCMP in this case was, in Carthy J.A.’s view, illegal.
12 Carthy J.A. then considered the Crown’s arguments about extending public interest immunity to the RCMP and concluded that the Crown does not exercise sufficient de jure control over the activities of RCMP members to justify such immunity from prosecution for breach of the criminal law as it relates to narcotics. As to the related concept of immunity derived from Crown agency, Carthy J.A. considered that, while members of the RCMP are entitled to seek out criminality through a variety of different methods, this mandate does not extend to methods that would be illegal if done by any other person. Carthy J.A. examined R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551. When Crown agents act within the scope of the public purposes they are statutorily empowered to pursue, they may be entitled to claim Crown immunity, he held, but in this case the RCMP officers had stepped outside the scope of any agency relationship that may have existed.
13 Carthy J.A. agreed with the trial judge that there was no entrapment. He went on, however, to consider whether the RCMP conduct amounted to an abuse of process for reasons other than entrapment. He noted that the illegal conduct of the RCMP did not involve a trifling amount of drugs. Further, he noted that the illegal conduct was authorized at all levels of the RCMP. He was prepared to infer that the reverse sting was considered lawful by the Department of Justice, and he treated this as an aggravating factor because “the full might of the Crown resources were set upon the task of illegal conduct” (p. 197). Carthy J.A. noted an alternate possibility that the police were acting on their own as “mavericks” contrary to legal advice. While he doubted that this was in fact the case, Carthy J.A. at p. 197 considered this would be
. . . an aggravating factor against the Crown of about equal weight to the first assumption [i.e., of equal weight to the assumption that the RCMP did follow the legal advice].
14 A third possibility, he considered, was that the RCMP had been advised that the reverse sting would be legal provided no drugs were passed to the appellants as part of a “sale”. If so, the RCMP had complied with the advice rendered, even though failure to complete the transaction did not change its illegality. Carthy J.A. recognized that all three scenarios were necessarily speculative on his part. He said, at p. 200, that had he been the trial judge he “would have directed production of the documents and evidence of the Crown law officer”. However, while “[i]t obviously would have been better if the [Department of Justice] information had been conveyed [to the appellants] at trial” (p. 200), no miscarriage of justice occurred because even assuming “the worst” against the Crown no stay could be justified in the circumstances of this case. It was not one of the clearest cases, nor did it involve conduct that would cause the public conscience to be shocked if the convictions were permitted to stand. He concluded, at pp. 198-99, that “[h]aving condemned the actions of the R.C.M.P. and having held up [his] hand against repetition, it would, in [his] view, be sanctimonious to say that the rule of law ha[d] been eroded by these convictions and sentences”. The Court of Appeal dismissed the other grounds of appeal, save for the technical variation in the order for forfeiture previously mentioned.
Analysis
Reverse Sting Operations
15 There is a general recognition that “[i]f the struggle against crime is to be won, the ingenuity of criminals must be matched by that of the police” (Mack, supra, per Lamer J., at p. 916). In a “sting” operation, the police pose as willing purchasers of narcotics to obtain evidence against traffickers. The Narcotic Control Regulations accept the legitimacy of this technique by deeming police possession in these circumstances to be authorized under that Act. The problem is that traffickers caught by ordinary “sting” purchases are generally minor street level personnel whose conviction has little deterrence effect on the day-to-day operations of the drug organization as a whole. As pointed out by Cpl. Reynolds in this case, the “executives” up the chain of command of large-scale drug organizations are able to insulate themselves from sting operations. The street level pushers apprehended by the police are easily sacrificed and easily replaced. For the purpose of more effective law enforcement, the police therefore devised what counsel referred to as “reverse sting” operations whereby the police became vendors rather than purchasers, i.e., the roles of vendor and purchaser were reversed within the sting operation. Because of the amount and value of drugs involved, reverse sting operations brought the police “vendors” into direct contact with the executive purchasers in the large drug organizations. It has proved to be an effective technique. It also, however, brought the police into conflict with the very law that they were attempting to enforce. Neither the Narcotic Control Act nor its regulations authorize the police to sell drugs. The appellants, as stated, purport to be shocked at the illegality of police conduct, and ask the Court to hold that the conduct so violates the community’s fundamental sense of decency and values that it should result in a stay of proceedings against them.
Guilt or Innocence of the Appellants
16 This appeal was directed almost entirely at the conduct of the abuse of process application following the finding of the trial judge that the appellants were guilty as charged. The only surviving issue on the issue of guilt or innocence is the contention of the appellant Campbell that the conspiracy alleged by the Crown, and encompassed in the indictment, was a larger agreement, different in time and place, than his demonstrated involvement. The counts in the indictment span the period November 1, 1990 to January 15, 1992, whereas it appears Campbell first became involved on November 21, 1991. The counts in the indictment refer to activity in Windsor, London, Mississauga, Toronto, and elsewhere in Ontario, whereas Campbell’s demonstrated involvement took place only in Mississauga. Campbell further contends that the evidence shows that he and Shirose were not related co-conspirators, because they were members of separate and distinct groups, acting without a common purpose or enterprise. I think the Crown is correct that the decision of this Court in R. v. Douglas, [1991] 1 S.C.R. 301, is fatal to this objection. After noting at pp. 315-16 that “[w]hile the offence of conspiracy is inherently difficult to frame, the indictment must be set forth with such reasonable precision as to inform the accused of the fundamental nature of the conspiracy charged”. Cory J. nevertheless concluded, at p. 322, that:
. . . it is not incumbent upon the Crown to prove the involvement of every member alleged to be part of the conspiracy. . . . If the conspiracy proven includes fewer members than the number of accused or extends over only part of the period alleged, then the conspiracy proven can still be said to be the same conspiracy as that charged in the indictment. In order to find that a specific conspiracy lies within the scope of the indictment, it is sufficient if the evidence adduced demonstrates that the conspiracy proven included some of the accused, establishes that it occurred at some time within the time frame alleged in the indictment, and had as its object the type of crime alleged.
The appellant was clearly able to ascertain the conspiracy alleged against him from a plain reading of the indictment and, in accordance with this Court’s decision in Douglas, this ground of appeal must be dismissed.
17 For reasons to be discussed, it is important to note that, at this stage of the proceedings, the door is finally and firmly closed against both appellants on the question of guilt or innocence. The remaining issue is whether, notwithstanding the guilt of the appellants, the proceedings against them should be stayed because of abuse of process.
The Rule of Law
18 It is one of the proud accomplishments of the common law that everybody is subject to the ordinary law of the land regardless of public prominence or governmental status. As we explained in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at p. 240, the rule of law is one of the “fundamental and organizing principles of the Constitution”, and at p. 258, it was further emphasized that a crucial element of the rule of law is that “[t]here is ... one law for all”. Thus a provincial premier was held to have no immunity against a claim in damages when he caused injury to a private citizen through wrongful interference with the exercise of statutory powers by a provincial liquor commission: Roncarelli v. Duplessis, [1959] S.C.R. 121. Professor F. R. Scott, who was counsel for the successful plaintiff, Roncarelli, in that case, subsequently observed in Civil Liberties & Canadian Federalism (1959), at p. 48:
. . . it is always a triumph for the law to show that it is applied equally to all without fear or favour. This is what we mean when we say that all are equal before the law.
The principle was famously enunciated by Professor A. V. Dicey in Introduction to the Study of the Law of the Constitution (8th ed. 1927) as the second aspect of the “rule of law”. This principle was noted with approval in Attorney General of Canada v. Lavell, [1974] S.C.R. 1349, at p. 1366:
It means again equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary courts.
19 The argument of the appellants is that not only are the police subject to prosecution for their participation in the very transaction that gave rise to the charges on which the appellants have been found guilty, but (more importantly from their perspective) police illegality should deprive the state of the benefit of a conviction against them. It is relevant that in s. 37 of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, Parliament has specifically imposed on RCMP officers the duty to stay within the law, as follows:
37. It is incumbent on every member
(a) to respect the rights of all persons;
(b) to maintain the integrity of the law, law enforcement and the administration of justice;
(c) to perform the member’s duties promptly, impartially and diligently, in accordance with the law and without abusing the member’s authority;
...
(e) to ensure that any improper or unlawful conduct of any member is not concealed or permitted to continue.... [Emphasis added.]
It is recognized, of course, that police officers gain nothing personally from conduct committed in good faith efforts to suppress crime that incidentally violates the law the police are attempting to enforce. Nevertheless, the seeming paradox of breaking a law in order to better enforce it has important ramifications for the rule of law.
Test for Abuse of Process
20 In R. v. Jewitt, [1985] 2 S.C.R. 128, the Court set down what has since become the standard formulation of the test for abuse of process, per Dickson C.J., at pp. 136-37:
I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young [(1984), 40 C.R. (3d) 289], and affirm that “there is a residual discretion in a trial court judge 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”. I would also adopt the caveat added by the Court in Young that this is a power which can be exercised only in the “clearest of cases”.
This general test for abuse of process has been repeatedly affirmed: see R. v. Keyowski, [1988] 1 S.C.R. 657, at pp. 658-59; Mack, supra, at p. 941; Conway, supra, at p. 1667; R. v. Scott, [1990] 3 S.C.R. 979, at pp. 992-93; Power, supra, at pp. 612-15; R. v. T. (V.), [1992] 1 S.C.R. 749, at pp. 762-63; R. v. Potvin, [1993] 2 S.C.R. 880, at p. 915; and most recently in R. v. O’Connor, [1995] 4 S.C.R. 411, at p. 455.
21 Entrapment is simply an application of the abuse of process doctrine. Lamer J., in Mack, supra, set out the applicable test as follows, at pp. 964-65:
. . . 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.
The trial judge concluded that she was “satisfied that the police acted on reasonable suspicion. That being so, the police were fully entitled to provide both accused with opportunities to commit the offences”. There was ample evidence to support her finding. She also found that the police had not crossed the boundary line from providing opportunity to commit the offence into the forbidden territory of inducing commission of the offence. The appellants needed no inducement. Once the opportunity presented itself, they, not the police, were the driving force behind the making of the deal.
22 In the absence of any plausible case for entrapment, the appellants can only succeed on the more general ground of a serious violation of “[the community’s sense of] fair play and decency ... disproportionate to the societal interest in the effective prosecution of criminal cases” (Conway, supra, at p. 1667). In this regard, the centrepiece of the appellants’ argument, as stated, is the allegation of police illegality, and the refusal of the courts below to order disclosure of what the appellants consider to be relevant communications between Cpl. Reynolds and Mr. Leising of the Department of Justice relied on by the police to establish their “good faith”.
The Issue of Police Illegality
23 The allegation that the police have put themselves above the law is very serious, with constitutional ramifications beyond the boundaries of the criminal law. This was not a trivial breach. In the end, the transaction was for 50 kilograms, but at the outset the police were trying to organize the sale of over a ton of cannabis resin. The failure of the police to make a deal on that scale was not for want of trying.
24 The effect of police illegality on an application for a stay of proceedings depends very much on the facts of a particular case. This case-by-case approach is dictated by the requirement to balance factors which are specific to each fact situation. The problem confronting the police was well described by the Alberta Court of Appeal in R. v. Bond (1993), 135 A.R. 329 (leave to appeal refused, [1993] 3 S.C.R. v), at p. 333:
Illegal conduct by the police during an investigation, while wholly relevant to the issue of abuse of the court’s processes, is not per se fatal to prosecutions which may follow: Mack; supra at 558. Frequently it will be, but situational police illegality happens. Police involve themselves in high speed chases, travelling beyond posted speed limits. Police pose as prostitutes and communicate for that purpose in order to gather evidence. Police buy, possess, and transport illegal drugs on a daily basis during undercover operations. In a perfect world this would not be necessary but, patently illegal drug commerce is neither successfully investigated, nor resisted, by uniformed police peering through hotelroom transoms and keyholes or waiting patiently at police headquarters to receive the confessions of penitent drug-traffickers.
The Crown contends, as it did in the courts below, that the police did not violate the Narcotic Control Act which at the time the reverse sting was initiated provided in s. 4 as follows:
4. (1) No person shall traffic in a narcotic or any substance represented or held out by the person to be a narcotic.
(2) No person shall have in his possession any narcotic for the purpose of trafficking.
(3) Every person who contravenes subsection (1) or (2) is guilty of an indictable offence and liable to imprisonment for life.
“Traffic” is defined in the Narcotic Control Act as follows:
2. In this Act,
...
“traffic” means
(a) to manufacture, sell, give, administer, transport, send, deliver or distribute, or
(b) to offer to do anything referred to in paragraph (a)
otherwise than under the authority of this Act or the regulations. [Emphasis added.]
25 The conclusion that the RCMP acted in a manner facially prohibited by the Act is inescapable. Their motive in doing so does not matter because, while motive may be relevant for some purposes, it is intent, not motive, that is an element of a full mens rea offence: see Lewis v. The Queen, [1979] 2 S.C.R. 821, at p. 831. The actus reus of the offence of trafficking is the making of an offer, and when accompanied by intent to do so, the necessary mens rea is made out: see R. v. Mancuso (1989), 51 C.C.C. (3d) 380 (Que. C.A.), at p. 390, leave to appeal refused, [1990] 2 S.C.R. viii. There is no need to prove both the intent to make the offer to sell and the intent to carry out the offer: see R. v. Mamchur, [1978] 4 W.W.R. 481 (Sask. C.A.). See also, e.g., R. v. Sherman (1977), 36 C.C.C. (2d) 207 (B.C.C.A.), at p. 208, upholding a conviction where there was evidence that the accused had offered to sell heroin to a person he knew was an undercover police officer, with a view to “rip off” the officer and not complete the sale. Sherman was later followed on this point in Mancuso, supra, at pp. 389-90, where the accused argued unsuccessfully that he did not intend actually to sell narcotics to a police informer, but really wished to steal his money.
Public Interest Immunity
26 The Crown submits that even if the conduct of the RCMP was facially prohibited by the terms of the Narcotic Control Act, no offence was committed because members of the RCMP are either part of the Crown or are agents of the Crown and as such partake of the Crown’s public interest immunity. Such an argument is difficult to square with s. 3(1) of the Narcotic Control Regulations which authorizes the police to possess narcotics that come to them from “sting” operations:
3. (1) A person is authorized to have a narcotic in his possession where that person has obtained the narcotic pursuant to these Regulations and
...
(g) is employed as an inspector, a member of the Royal Canadian Mounted Police, a police constable, [or] peace officer ... and such possession is for the purposes of and in connection with such employment. . . .
Even though the authority is contained in a regulation rather than the Act itself, it is clear that the Regulation would be entirely unnecessary and superfluous if the Act did not apply to the police in the first place.
The Status of the Police
27 The Crown’s attempt to identify the RCMP with the Crown for immunity purposes misconceives the relationship between the police and the executive government when the police are engaged in law enforcement. A police officer investigating a crime is not acting as a government functionary or as an agent of anybody. He or she occupies a public office initially defined by the common law and subsequently set out in various statutes. In the case of the RCMP, one of the relevant statutes is now the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10.
28 Under the authority of that Act, it is true, RCMP officers perform a myriad of functions apart from the investigation of crimes. These include, by way of examples, purely ceremonial duties, the protection of Canadian dignitaries and foreign diplomats and activities associated with crime prevention. Some of these functions bring the RCMP into a closer relationship to the Crown than others. The Department of the Solicitor General Act, R.S.C., 1985, c. S-13, provides that the Solicitor General’s powers, duties and functions extend to matters relating to the RCMP over which Parliament has jurisdiction, and that have not been assigned to another department. Section 5 of the Royal Canadian Mounted Police Act provides for the governance of the RCMP as follows:
5. (1) The Governor in Council may appoint an officer, to be known as the Commissioner of the Royal Canadian Mounted Police, who, under the direction of the [Solicitor General], has the control and management of the Force and all matters connected therewith.
29 It is therefore possible that in one or other of its roles the RCMP could be acting in an agency relationship with the Crown. In this appeal, however, we are concerned only with the status of an RCMP officer in the course of a criminal investigation, and in that regard the police are independent of the control of the executive government. The importance of this principle, which itself underpins the rule of law, was recognized by this Court in relation to municipal forces as long ago as McCleave v. City of Moncton (1902), 32 S.C.R. 106. That was a civil case, having to do with potential municipal liability for police negligence, but in the course of his judgment Strong C.J. cited with approval the following proposition, at pp. 108-9:
Police officers can in no respect be regarded as agents or officers of the city. Their duties are of a public nature. Their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising a function of government, but this does not render them liable for their unlawful or negligent acts. The detection and arrest of offenders, the preservation of the public peace, the enforcement of the laws, and other similar powers and duties with which police officers and constables are entrusted are derived from the law, and not from the city or town under which they hold their appointment.
30 At about the same time, the High Court of Australia rejected the notion that a police constable was an agent of the Crown so as to enjoy immunity against a civil action for wrongful arrest. Griffith C.J. had this to say in Enever v. The King (1906), 3 C.L.R. 969, at p. 977:
Now, the powers of a constable, quâ peace officer, whether conferred by common or statute law, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself. If he arrests on suspicion of felony, the suspicion must be his suspicion, and must be reasonable to him. If he arrests in a case in which the arrest may be made on view, the view must be his view, not that of someone else. ... A constable, therefore, when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application.
31 Over 70 years later, Laskin C.J. in Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, at p. 322, speaking with reference to the status of a probationary police constable, affirmed that “we are dealing with the holder of a public office, engaged in duties connected with the maintenance of public order and preservation of the peace, important values in any society” (emphasis added). See also Ridge v. Baldwin, [1964] A.C. 40 (H.L.), at p. 65.
32 Similar sentiments were expressed by the Judicial Committee of the Privy Council in Attorney-General for New South Wales v. Perpetual Trustee Co., [1955] A.C. 457 (P.C.), another civil case dealing with the vicarious liability of the Crown, in which Viscount Simonds stated, at pp. 489-90:
[A constable’s] authority is original, not delegated, and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognized in the fact that his relationship to the Government is not in ordinary parlance described as that of servant and master.
33 While for certain purposes the Commissioner of the RCMP reports to the Solicitor General, the Commissioner is not to be considered a servant or agent of the government while engaged in a criminal investigation. The Commissioner is not subject to political direction. Like every other police officer similarly engaged, he is answerable to the law and, no doubt, to his conscience. As Lord Denning put it in relation to the Commissioner of Police in R. v. Metropolitan Police Comr., Ex parte Blackburn, [1968] 1 All E.R. 763 (C.A.), at p. 769:
I have no hesitation, however, in holding that, like every constable in the land, he [the Commissioner of Police] should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State, save that under the Police Act 1964 the Secretary of State can call on him to give a report, or to retire in the interests of efficiency. I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone. [Emphasis added.]
34 To the same effect, see the more recent Canadian cases of R. v. Creswell, [1998] B.C.J. No. 1090 (QL) (S.C.), which involves facts closer to those in the present appeal; Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1989), 58 D.L.R. (4th) 396 (Ont. H.C.), affirmed (1990), 74 O.R. (2d) 225 (Div. Ct.); and Perrier v. Sorgat (1979), 25 O.R. (2d) 645 (Co. Ct.). A contrary conclusion was reached by Bielby J. of the Alberta Court of Queen’s Bench in Rutherford v. Swanson, [1993] 6 W.W.R. 126, but her decision, I think, suffers from the frailty of failing to differentiate the different functions the RCMP perform, and the potentially different relationship of the RCMP to the Crown in the exercise of those different functions.
35 While these cases generally examine the relationship between the police and various governments in terms of civil liability, the statements made are of much broader import. It would make no sense in either law or policy to hold the police to be agents of the Crown for the purposes of allowing the Crown to shelter the police under its immunity in criminal matters, but to hold the police not to be Crown agents in civil matters to enable the government to resile from liability for police misconduct. The Crown cannot have it both ways.
36 Parenthetically, it should be noted that Parliament has provided in the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 36, that:
36. For the purposes of determining liability in any proceedings by or against the Crown, a person who was at any time a member of the Canadian Forces or of the Royal Canadian Mounted Police shall be deemed to have been at that time a servant of the Crown. [Emphasis added.]
A “deeming” section would not be necessary if it were the case that, at law, an RCMP officer was in any event a Crown servant for all purposes.
The Limitations on Crown Agency Expressed in R. v. Eldorado Nuclear Ltd.
37 Even if the police could be considered agents of the Crown for some purposes, and even if the Crown itself were not bound by the Narcotic Control Act, I agree with the Ontario Court of Appeal that in this case the police stepped outside the lawful ambit of their agency, and whatever immunity was associated with that agency was lost. This principle was elaborated upon by this Court in two cases decided in 1983, namely Eldorado Nuclear, supra, and Canadian Broadcasting Corp. v. The Queen, [1983] 1 S.C.R. 339. In the latter case, the CBC, which by its enabling statute is expressly constituted a Crown corporation, was nevertheless held subject to prosecution for broadcasting an obscene film. This Court held that the CBC’s conduct put it outside the scope of its agency, per Estey J., at p. 351:
... even if Crown immunity may be attributed to the appellant [CBC] in some circumstances, and the actions of the appellant in such circumstances attributed to the Crown, it does not necessarily follow that the immunities attendant upon the status of Crown agency will flow through to the benefit and protection of the appellant in all circumstances.
38 In Eldorado Nuclear, on the other hand, the Court concluded that two Crown corporations, namely Eldorado Nuclear Limited and Uranium Canada Limited, who were accused of being parties to an unlawful uranium cartel, could not be prosecuted under the Combines Investigation Act. They were acting pursuant to their corporate objects set out by Parliament in their respective constitutive statutes, and, in respect of acts done in furtherance of their statutory objects, the Combines Investigation Act had no application to them.
39 While it may be convenient and expeditious for the police to enforce the Narcotic Control Act by breaking it themselves under “controlled circumstances”, such a strategy in the present case was not necessary to accomplish the RCMP’s statutory mandate (Eldorado Nuclear, supra, at p. 568). Parliament made it clear in s. 37 of the Royal Canadian Mounted Police Act, that the RCMP must act “in accordance with the law”. Parliament has made it clear that illegality by the RCMP is neither part of any valid public purpose nor necessarily “incidental” to its achievement. If some form of public interest immunity is to be extended to the police to assist in the “war on drugs”, it should be left to Parliament to delineate the nature and scope of the immunity and the circumstances in which it is available, as indeed was done in 1996, after the events in question here, in s. 8 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
40 The respondent raises one further argument concerning the legality of the RCMP’s conduct in engaging in the reverse sting operation. This argument consists of the bald assertion that the police have available to them a so-called “necessity” justification or defence as that term was used in R. v. Salvador (1981), 59 C.C.C. (2d) 521 (N.S.C.A.), per Macdonald J.A., at p. 542:
Generally speaking, the defence of necessity covers all cases where non-compliance with law is excused by an emergency or justified by the pursuit of some greater good.
It is not alleged that the RCMP conduct is such that it could be said to fall within one of the established “justification” defences (e.g., self-defence or defence of third parties) and the Crown offers no authority for the proposition that there exists (or should exist) in Canada a so-called “law enforcement” justification defence generally. The United States experience is mixed: see G. Greaney, “Crossing the Constitutional Line: Due Process and the Law Enforcement Justification” (1992), 67 Notre Dame L. Rev. 745. In any event, the author points out that the law justification defence “only applies if the ‘conduct is within the reasonable exercise of the policeman’s duty ...’” (p. 784) and “... courts also look to an officer’s adherence to state and federal laws when examining the reasonableness of the officer’s conduct” (p. 787). The law enforcement justification is frequently raised in the United States in the context of federal law enforcement activity that complies with federal laws but breaches state laws. In such cases, the United States Supreme Court held in In re Neagle, 135 U.S. 1 (1890), per Miller J., at p. 68 and following, that the officer claiming the law enforcement justification must be performing an act that he or she is authorized by federal law to perform as part of police duties and that actions in violation of state law must be carefully circumscribed so as to do no more than is necessary and proper. See Baucom v. Martin, 677 F.2d 1346 (11th Cir. 1982), per Wood J., at p. 1350. It would therefore appear that in the United States a police officer would not be entitled to the law enforcement justification where, as here, the constitutive statute of the police force imposes on its members the duty to act “in accordance with the law” (Royal Canadian Mounted Police Act, s. 37).
41 In this country, it is accepted that it is for Parliament to determine when in the context of law enforcement the end justifies means that would otherwise be unlawful. As Dickson J. (as he then was) put it in Perka v. The Queen, [1984] 2 S.C.R. 232, at p. 248:
The Criminal Code has specified a number of identifiable situations in which an actor is justified in committing what would otherwise be a criminal offence. To go beyond that and hold that ostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into the criminal law. It would invite the courts to second-guess the legislature and to assess the relative merits of social policies underlying criminal prohibitions. Neither is a role which fits well with the judicial function.
While it is true that Dickson J. was not addressing the issue of police illegality in that case, a general “law enforcement justification” would run counter to the fundamental constitutional principles outlined earlier. It should be emphasized that the police in this case were not acting in an emergency or other exigent circumstances. This was a premeditated, carefully planned attempt to sell a ton of hashish. If the Crown wishes to argue for specific relief against criminal or civil liability of the police in emergency or other exigent circumstances in a future case on facts where the argument fairly arises, the issue will be more fully addressed at that time. Such arguments have no application here.
Evidence of Police “Good Faith”
42 The conclusion that the police conduct in undertaking a reverse sting is, on the facts of this case, illegal does not of itself amount to an abuse of process or, to take it a step further, entitle the appellants to a stay. The legality of police action is but a factor, albeit an important factor, to be considered in the determination of whether an abuse of process has taken place: see R. v. Lore (1997), 116 C.C.C. (3d) 255 (Que. C.A.), at p. 271; R. v. Matthiessen (1995), 172 A.R. 196 (Q.B.), at pp. 209-10; and Bond, supra, at p. 333. Where the courts have found that the illegality or other misconduct amounts to an abuse of process, it has by no means followed that a stay of proceedings was considered the appropriate remedy. In R. v. Xenos (1991), 70 C.C.C. (3d) 362 (Que. C.A.), for example, a stay was refused despite the finding that the police had participated in conduct that was said to be totally unacceptable, per Brossard J.A., at p. 371.
43 I should make it clear that even if it should turn out here that the police acted contrary to the legal advice provided by the Department of Justice (and we have no reason at this stage to believe this to be the case), there would still be no right to an automatic stay. Apart from everything else, the trial judge would still have to consider any other information or explanatory circumstances that emerge during the inquiry into whether the police or prosecutorial conduct “shocks the conscience of the community”. In Mack, supra, Lamer J. considered that the need to grant some leeway to law enforcement officials to combat consensual criminal offences such as drug trafficking must be weighed against the courts’ concern about law enforcement techniques that involve conduct that the citizenry would not tolerate. The underlying rationale of the doctrine of abuse of process is to protect the integrity of the courts’ process and the administration of justice from disrepute: see Mack, at pp. 938 and 940. Lamer J. stated, at p. 939, that “the doctrine of abuse of process draws on the notion that the state is limited in the way it may deal with its citizens”.
Relevance of Legislative Change
44 It was considered in the court below, and by the Quebec Court of Appeal in Lore, supra, at p. 271, that the immunity provisions of the new Controlled Drugs and Substances Act should be seen as confirmation that the use of reverse stings would not shock the conscience of the community in such a way as to constitute an abuse of process. The fact that Parliament has now enacted specific legislation permitting (in defined circumstances) the police to engage lawfully in the type of conduct at issue in this appeal confirms that the police conduct was not considered lawful by Parliament prior to the amendments’ being made. The Interpretation Act, R.S.C., 1985, c. I-21, s. 10, provides that “[t]he law [is] always speaking”, and Parliament’s view at the relevant time was embodied in its then existing enactments. At the material time, Parliament had enacted that conduct otherwise illegal could be done lawfully “under the authority of this Act or the regulations”, and under the regulations the police were authorized to possess but not to sell controlled drugs. Judicial notice can certainly be taken of continuing public concern about the drug trade, and in a general way of the difficulties of successfully employing traditional police techniques against large-scale crime organizations. There is little need in this case to resort for evidence of public concern to legislative amendments that were not made until two years after the trial. Nevertheless, given that the test in Mack calls for a broad inquiry into the balance of public interests, I would not want to exclude the possibility that after-the-fact legislation may throw some light on community acceptance of a reverse sting operation. It was but a short step from the existing regulatory authority to possess drugs as a result of a sting to the desired regulatory authority to sell drugs in the context of a reverse sting. One of the purposes of the balancing exercise discussed by L’Heureux-Dubé J. in O’Connor, supra, at paras. 129-30, is to put misconduct by the authorities, worrisome as it may be, in a larger societal perspective.
45 The point here, however, is slightly different. Superadded to the issue of illegal conduct is the possibility of a police operation planned and executed contrary to the advice (if this turns out to be true) of the Department of Justice. The suggestion is that the RCMP, after securing the relevant legal advice, nevertheless put itself above the law in its pursuit of the appellants. The community view of the police misconduct would, I think, be influenced by knowing whether or not the police were told in advance by their legal advisers that the reverse sting was illegal. Standing by itself, therefore, the subsequent 1996 enactment addresses only part of the issue.
The Assertion of Police Good Faith Was Based in Part on Advice Received from the Department of Justice
46 Counsel for the Crown has invited the Court to evaluate the police conduct throughout the reverse sting and submits their actions do not constitute an abuse of process. One of the issues is good faith, as discussed in A. Choo, Abuse of Process and Judicial Stays of Criminal Proceedings (1993), at pp. 107-118. As evidence of the fact that the reverse sting was undertaken “with the purest of motives”, the Crown has pointed out that the reverse sting proposal went through between 9 and 14 stages of approval before finally being authorized. The reverse sting operation was carefully planned, narrowly targeted, and ensured that no hashish actually changed hands, and thus never entered the criminal black market. Most importantly for present purposes is the fact that the Crown emphasized the good faith reliance of the police on legal advice. In the factum prepared for the Ontario Court of Appeal, for example, the argument was put as follows:
26. The conduct of the R.C.M.P. in the present case falls far short of conduct that has hitherto received the courts’ seal of approval. In the case at bar, as in the aforementioned case law, there has been no abuse of process or any conduct by the police that could “shock the conscience of the community”. In particular, regard must be had to the following considerations:
...
(f) The R.C.M.P. based, at least in part, the legality of there [sic] investigatory techniques on valid case law (R. v. Lore, unreported, Quebec Superior Court, 26 February, 1991, Pinard, J.S.C.) and consulted with the Department of Justice with regard to any problems of illegality. [Emphasis added.]
The RCMP’s reliance on legal advice was thus invoked as part of its “good faith” argument. The privilege belonged to the client, and the RCMP joined with the Crown to put forward that position. While not explicitly stated in so many words, the plain implication sought to be conveyed to the appellants and to the courts was that the RCMP accepted the legal advice they were given by the Department of Justice and acted in accordance with it. The credibility of a highly experienced departmental lawyer was invoked to assist the RCMP position in the abuse of process proceedings.
47 The Crown now says that the content of communications between the police and the Department of Justice could not affect the issue as to whether the conduct of the RCMP gave rise to an abuse of process. The Crown says it does not matter what the RCMP were told as to the legality of the reverse sting operation the RCMP planned. Assuming the worst, the Crown says, no stay is warranted. On this point they rely on the analysis of the Court of Appeal, already quoted at para. 13, that if it were shown that the RCMP “moved ahead on their own as mavericks” (p. 197) despite legal advice to the contrary, it would be “of about equal weight” to a situation where the RCMP acted on a positive legal opinion that what they proposed to do would be lawful. With respect, I do not agree. A police force that chooses to operate outside the law is not the same thing as a police force that made an honest mistake on the basis of erroneous advice. We have no reason to think the RCMP ignored the advice it was given, but as the RCMP did make an issue of the legal advice it received in response to the stay applications, the appellants were entitled to have the bottom line of that advice corroborated.
48 It appears, therefore, that the only satisfactory way to resolve the issue of good faith is to order disclosure of the content of the relevant advice. This should be done (for the reasons to be discussed) on the basis of waiver by the RCMP of the solicitor-client privilege. It would be convenient, however, to address beforehand three additional contentions by the appellants. They say that disclosure of the communications between Cpl. Reynolds and the Department of Justice ought never to have been withheld in the first place because (a) no solicitor-client relationship exists between Department of Justice lawyers and police officers and therefore no privilege ever arose in this case, or, if such a relationship did exist, the communications at issue in the present case fell within either (b) the future crimes or (c) full answer and defence exceptions to the privilege.
(a) Existence of a Solicitor-Client Relationship between the RCMP Officers and Lawyers in the Department of Justice
49 The solicitor-client privilege is based on the functional needs of the administration of justice. The legal system, complicated as it is, calls for professional expertise. Access to justice is compromised where legal advice is unavailable. It is of great importance, therefore, that the RCMP be able to obtain professional legal advice in connection with criminal investigations without the chilling effect of potential disclosure of their confidences in subsequent proceedings. As Lamer C.J. stated in R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 289:
The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication....
See also Smith v. Jones, [1999] 1 S.C.R. 455, per Cory J., at para. 46, and per Major J., at para. 5. This Court had previously, in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at p. 872, adopted Wigmore’s formulation of the substantive conditions precedent to the existence of the right of the lawyer’s client to confidentiality (Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), § 2292, at p. 554):
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived. [Emphasis and numerotation deleted.]
Cpl. Reynolds’ consultation with Mr. Leising of the Department of Justice falls squarely within this functional definition, and the fact that Mr. Leising works for an “in-house” government legal service does not affect the creation or character of the privilege.
50 It is, of course, not everything done by a government (or other) lawyer that attracts solicitor-client privilege. While some of what government lawyers do is indistinguishable from the work of private practitioners, they may and frequently do have multiple responsibilities including, for example, participation in various operating committees of their respective departments. Government lawyers who have spent years with a particular client department may be called upon to offer policy advice that has nothing to do with their legal training or expertise, but draws on departmental know-how. Advice given by lawyers on matters outside the solicitor-client relationship is not protected. A comparable range of functions is exhibited by salaried corporate counsel employed by business organizations. Solicitor-client communications by corporate employees with in-house counsel enjoy the privilege, although (as in government) the corporate context creates special problems: see, for example, the in-house inquiry into “questionable payments” to foreign governments at issue in Upjohn Co. v. United States, 449 U.S. 383 (1981), per Rehnquist J. (as he then was), at pp. 394-95. In private practice some lawyers are valued as much (or more) for raw business sense as for legal acumen. No solicitor-client privilege attaches to advice on purely business matters even where it is provided by a lawyer. As Lord Hanworth, M.R., stated in Minter v. Priest, [1929] 1 K.B. 655 (C.A.), at pp. 668-69:
[I]t is not sufficient for the witness to say, “I went to a solicitor’s office.” ... Questions are admissible to reveal and determine for what purpose and under what circumstances the intending client went to the office.
Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered. One thing is clear: the fact that Mr. Leising is a salaried employee did not prevent the formation of a solicitor-client relationship and the attendant duties, responsibilities and privileges. This rule is well established, as set out in Crompton (Alfred) Amusement Machines Ltd. v. Comrs. of Customs and Excise (No. 2), [1972] 2 All E.R. 353 (C.A.), per Lord Denning, M.R., at p. 376:
Many barristers and solicitors are employed as legal advisers, whole time, by a single employer. Sometimes the employer is a great commercial concern. At other times it is a government department or a local authority. It may even be the government itself, like the Treasury Solicitor and his staff. In every case these legal advisers do legal work for their employer and for no one else. They are paid, not by fees for each piece of work, but by a fixed annual salary. They are, no doubt, servants or agents of the employer. For that reason the judge thought that they were in a different position from other legal advisers who are in private practice. I do not think this is correct. They are regarded by the law as in every respect in the same position as those who practise on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and of etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges.... I have always proceeded on the footing that the communications between the legal advisers and their employer (who is their client) are the subject of legal professional privilege; and I have never known it questioned.
51 It is true that the Minister of Justice, who is ex officio the Attorney General of Canada, has a special legislated responsibility to ensure that “the administration of public affairs is in accordance with law”, and in that respect he or she is not subject to the same client direction as private clients: see Department of Justice Act, R.S.C., 1985, c. J-2, s. 4. We are not, however, concerned in this case with any conflict that may arise between the Minister and one of the “client departments”. Here, the Attorney General and the RCMP are united in asserting the privilege.
52 In the United States, the courts have recognized that solicitor-client privilege attaches to communications between government employees and government lawyers that fulfill the Wigmore conditions mentioned in Descôteaux, supra. The point is made, for example, by the authors of the Restatement (Restatement (Third) of the Law Governing Lawyers, § 124 (Proposed Final Draft No. 1, 1996)), as follows:
Unless applicable law otherwise provides, the attorney-client privilege extends to a communication of a governmental organization ... and of an individual officer ... of a governmental organization.
It is possible that in the United States the application of the privilege to government counsel may be circumscribed differently than in this country owing to the structure of the United States Constitution and government: see, e.g., the discussion of the U.S. Court of Appeals, District of Columbia Circuit, in the context of an investigation of alleged criminal conduct by government officials in In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998). In this country as well, the solicitor-client privilege may operate differently in some respects because of the public interest aspect of government administration, but such differences are not relevant to this appeal.
53 In support of their assertion that no privilege exists in respect of communications between the police and Crown counsel in the course of a criminal investigation, the appellants rely upon Re Girouard and the Queen (1982), 68 C.C.C. (2d) 261 (S.C.B.C.), and R. v. Ladouceur, [1992] B.C.J. No. 2854 (QL) (S.C.). Girouard concerned the admissibility of the details of a conversation between Crown counsel and a police officer who was to be a Crown witness in the hallway outside the courtroom on the day of a preliminary inquiry. The conversation was overheard by defence counsel. The B.C. Supreme Court held, inter alia, that because the conversation had been overheard, any privilege that might have existed had been waived.
54 Girouard advocates the proposition that communications as to the question of identification between a police officer who is to be a Crown witness and Crown counsel are not protected by solicitor-client privilege. This seems to be based on the Court’s view that because a police officer was not an agent of the Attorney General, no solicitor-client relationship could exist between a Crown counsel and a police officer. I disagree with this analysis. The existence of an agency relationship is not essential to the creation of solicitor-client privilege. In seeking advice from a lawyer about the exercise of his original authority that “cannot be exercised on the responsibility of any person but himself” (Enever, supra, p. 977), Cpl. Reynolds satisfied the conditions precedent “to the existence of the right of the lawyer’s client to confidentiality” (Descôteaux, supra, p. 872). Subject to what is said below, when Mr. Leising of the Department of Justice initially advised Cpl. Reynolds about the legality of a reverse sting operation, these communications were protected by solicitor-client privilege.
(b) The “Future Crimes and Fraud” Exception
55 It is well established, as the appellants argue, that there is an exception to the principle of confidentiality of solicitor-client communications where those communications are criminal or else made with a view to obtaining legal advice to facilitate the commission of a crime. The exception was noted by Dickson J. in Solosky v. The Queen, [1980] 1 S.C.R. 821, at pp. 835-36:
More significantly, if a client seeks guidance from a lawyer in order to facilitate the commission of a crime or a fraud, the communication will not be privileged and it is immaterial whether the lawyer is an unwitting dupe or knowing participant. The classic case is R. v. Cox and Railton [(1884), 14 Q.B.D. 153], in which Stephen J. had this to say (p. 167): “A communication in furtherance of a criminal purpose does not ‘come in the ordinary scope of professional employment’.”
56 The Court of Appeal concluded, at p. 200, that the “future crimes” exception applied because it was a “fair inference” from a memorandum dated June 1991 “that the lawyer was offering advice which, even given the utmost good faith, was being utilized by Corporal Reynolds in the planning of the venture”. A distinction must be drawn, I think, between the evidence of Cpl. Reynolds and related documents, on the one hand, and the position taken by the Crown and the RCMP before the courts in this case, on the other hand. The testimony of Cpl. Reynolds was that he did not require legal advice “to plan the venture”. He already knew about reverse sting operations. Nor did he seek the advice to “facilitate” the crime. He sought advice as to whether or not the operation he had in mind was lawful. This is the sort of transaction advice sought every day from lawyers. In my view, the privilege is not automatically destroyed if the transaction turns out to be illegal. As noted above, Dickson J., in Solosky, at p. 835, referred to R. v. Cox and Railton (1884), 14 Q.B.D. 153, as “[t]he classic case” on this point. In that case, a judgment debtor consulted a solicitor about the vulnerability of assets to seizure. The solicitor’s advice was essentially that it could not be done without a bona fide sale of the property in question. Later, when the judgment creditor attempted to realize against the assets, they had been sold. It was alleged that the sale was fraudulent as having been entered into in an attempt to deprive the judgment creditor of the fruits of his judgment. The solicitor was called as a witness and compelled to testify about the advice he had given. Stephen J., for the court on appeal, after affirming the importance of the solicitor-client privilege, went on to discuss the limits of this doctrine as follows, at p. 168:
In order that the rule [the solicitor-client privilege] may apply there must be both professional confidence and professional employment, but if the client has a criminal object in view in his communications with his solicitor one of these elements must necessarily be absent. The client must either conspire with his solicitor or deceive him. If his criminal object is avowed, the client does not consult his adviser professionally, because it cannot be the solicitor’s business to further any criminal object. If the client does not avow his object he reposes no confidence, for the state of facts, which is the foundation of the supposed confidence, does not exist. The solicitor’s advice is obtained by a fraud. [Emphasis added.]
The court found in that case that although the solicitor was not an active part of the conspiracy to defraud the creditor, he had been duped by his clients, and the privilege was destroyed.
57 The language of the court in Cox and Railton (“... if the client has a criminal object in view in his communications with his solicitor...”) implied that this exception can only apply where a client is knowingly pursuing a criminal purpose, and it is so laid down by Professor Wigmore (Wigmore on Evidence, supra, § 2298, at p. 573) where he gives an affirmative answer to the question, “Must . . . the advice be sought for a knowingly unlawful end?” (Emphasis in original.)
58 Although the issue has apparently not been directly considered in the Canadian case law, the Wigmore view was subsequently espoused by the authors of “The Future Crime or Tort Exception to Communications Privileges” (1964), 77 Harv. L. Rev. 730, where they state as follows, at pp. 730-31:
The attorney-client privilege has always been subject to the qualification that protection is denied to communications wherein a lawyer’s assistance is sought in activity that the client knows to constitute a crime or tort. [Emphasis added.]
The scope of the “future crimes” exception is circumscribed on a public policy basis, as explained at p. 731:
The knowledge requirement minimizes the effect of the exception on proper communications; absent this requirement legitimate consultations would be inhibited by the risk that their subject matter might turn out to be illegal and therefore unprivileged. Moreover, counseling against unfounded claims or illegal projects is an important part of the lawyer’s function. [Emphasis added.]
59 This explanation is consistent with the statement of the principle of Lamer J. in Descôteaux, supra, at p. 881:
Confidential communications, whether they relate to financial means or to the legal problem itself, lose that character if and to the extent that they were made for the purpose of obtaining legal advice to facilitate the commission of a crime.
The exception to the formation of the privilege was elaborated upon by Lord Parmoor in O’Rourke v. Darbishire, [1920] A.C. 581 (H.L.), at p. 621:
The third point relied on by the appellant, as an answer to the claim of professional privilege, is that the present case comes within the principle that such privilege does not attach where a fraud has been concocted between a solicitor and his client, or where advice has been given to a client by a solicitor in order to enable him to carry through a fraudulent transaction. If the present case can be brought within this principle, there will be no professional privilege, since it is no part of the professional duty of a solicitor either to take part in the concoction of fraud, or to advise his client how to carry through a fraud. Transactions and communications for such purposes cannot be said to pass in professional confidence in the course of professional employment. [Emphasis added.]
60 A leading U.S. case that considers this question is State ex rel. North Pacific Lumber Co. v. Unis, 579 P.2d 1291 (Or. 1978). In that case, it was alleged that an employer illegally eavesdropped on an employee’s telephone conversations. The employer stated that before undertaking this eavesdropping, it had sought legal advice and it claimed solicitor-client privilege over these communications. The employee sought the disclosure of this advice, but disclosure was refused. The court made the following pertinent comment, at p. 1295:
We approve of the requirement that, in order to invoke the exception to the privilege, the proponent of the evidence must show that the client, when consulting the attorney, knew or should have known that the intended conduct was unlawful. Good-faith consultations with attorneys by clients who are uncertain about the legal implications of a proposed course of action are entitled to the protection of the privilege, even if that action should later be held improper. [Emphasis added.]
61 In the present case, the only evidence of RCMP knowledge, constructive or otherwise, is the testimony of Cpl. Reynolds who insists that he believed the reverse sting operation to be lawful. In light of his prior study of the Superior Court decision in Lore, supra, it cannot fairly be said that Cpl. Reynolds “knew or should have known that the intended conduct was unlawful” at the time he approached Mr. Leising. Nor does the evidence establish that Mr. Leising was a “conspirator or a dupe”. There is therefore no basis in Cpl. Reynold’s evidence to suggest that in this case the solicitor-client privilege never came into existence.
62 The question remains whether the privilege was destroyed when the RCMP sold hashish to the appellants. It is argued by the authors of “The Future Crime or Tort Exception to Communications Privileges”, supra, at p. 731, that a “subsequent formation of criminal intent should be held to destroy a preexisting privilege”. This would suggest that proof of a crime which, except in offences of absolute liability, entails proof of intent, would automatically destroy the privilege in every case. Such a proposition could have a very broad impact, for example, in the field of regulatory crimes and offences. In my view, destruction of the privilege takes more than evidence of the existence of a crime and proof of an anterior consultation with a lawyer. There must be something to suggest that the advice facilitated the crime or that the lawyer otherwise became a “dupe or conspirator”. The evidence of Cpl. Reynolds does not establish such things, but the formal position of the Crown, with the support of the RCMP, goes beyond his evidence. The RCMP position before the Court was that the decision to proceed with the reverse sting had been taken with the participation and agreement of the Department of Justice. By adopting this position, the RCMP belatedly brought itself within the “future crimes” exception, and put in question the continued existence of its privilege.
63 If there had been no waiver of privilege by the RCMP in this case, I would have taken the view that any papers documenting the legal advice (or, if there was no contemporaneous documentation, an affidavit setting out the content of the relevant 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 appellants. If the lawyer had merely advised about the legality of the operation, and thereby made himself neither dupe nor conspirator in the facilitation of a crime, the proper course would have been to return the papers to the RCMP.
64 In this case, however, I think the RCMP did waive the privilege, as discussed below. The relevant solicitor-client communications that came within the scope of the waiver ought therefore to be turned over directly to the appellants without the need in the first instance of a two-stage procedure involving the trial judge.
(c) Full Answer and Defence
65 Another 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: see R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 340; R. v. Dunbar (1982), 68 C.C.C. (2d) 13 (Ont. C.A.), at p. 43; R. v. Gray (1992), 74 C.C.C. (3d) 267 (B.C.S.C.), at pp. 273-74. The Crown concedes the validity of the principle, but suggests that it is irrelevant to an abuse of process application because it applies only where “innocence is at stake”, which is no longer the case in the present appeal. Where innocence is not at stake, the Crown contends, the accused’s right to make full answer and defence is not engaged. In this connection, the Crown relies upon R. v. Seaboyer, [1991] 2 S.C.R. 577, per McLachlin J., at p. 607, and A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536, per L’Heureux-Dubé J., at p. 561. I do not think these cases can be taken as deciding an issue that was not before the Court on those occasions. The Ontario Court of Appeal concluded at p. 200 that the full answer and defence exception applied because “the entire jeopardy of the appellants remained an open issue until disposition of the stay application”. This may be true, but the appellants were not providing “full answer and defence” to the stay application. On the contrary, the appellants are the moving parties. The application is being defended by the Crown. The appellants’ initiative in launching a stay application does not, of itself, authorize a fishing expedition into solicitor-client communications to which the Crown is a party.
66 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 communications in an abuse of process proceeding and, if so, in what circumstances.
Waiver of Solicitor-Client Privilege
67 The record is clear that the RCMP put in issue Cpl. Reynolds’ good faith belief in the legality of the reverse sting, and asserted its reliance upon his consultations with the Department of Justice to buttress that position. The RCMP factum in the Ontario Court of Appeal has already been quoted in para. 46. In my view, the RCMP waived the right to shelter behind solicitor-client privilege the contents of the advice thus exposed and relied upon. I characterize the RCMP rather than Cpl. Reynolds as the client in these circumstances because even though he was exercising the duties of his public office as a police officer, Cpl. Reynolds was seeking the legal advice in the course of his RCMP employment. The identification of “the client” is a question of fact. There is no conceptual conflict between the individual responsibilities of the police officer and characterizing the “client” as the RCMP. Despite the existence of the Royal Canadian Mounted Police Act and related legislation, I believe the relationship among individual policemen engaged in criminal investigations is accurately set out in Halsbury’s Laws of England (4th ed. 1981), vol. 36, at p. 107:
The history of the police is the history of the office of constable and, notwithstanding that present day police forces are the creation of statute and that the police have numerous statutory powers and duties, in essence a police force is neither more nor less than a number of individual constables, whose status derives from the common law, organised together in the interests of efficiency.
If Cpl. Reynolds himself were characterized as the client, it could be said that sharing the contents of that advice with his fellow officers would have breached the confidentiality and waived the privilege, which would be absurd. At the same time, if the legal advice were intentionally disclosed outside the RCMP, even to a department or agency of the federal government, such disclosure might waive the confidentiality, depending on the usual rules governing disclosure to third parties by a client of communications from its solicitor.
68 It is convenient to recall at this point that at the time of the original disclosure motions, the position of the appellants was clear, i.e., disclose the communications or forswear reliance upon them. Notwithstanding this caution, the RCMP and their legal counsel chose to rely upon the communications to support their argument of good faith reliance. In doing so, the privilege was waived.
69 In Rogers v. Bank of Montreal, [1985] 4 W.W.R. 508 (B.C.C.A.), the bank put a defaulting customer into receivership, and the customer sued both the bank and the receiver, who then launched third party proceedings at each other. The bank said it had relied on the receiver’s advice in putting the customer into receivership. The receiver denied detrimental reliance on its advice, and wanted to know what other professional advice the bank had received at the relevant time. In particular, the receiver wanted to know what legal advice the bank had received from its own lawyers, MacKimmie Matthews. The bank claimed solicitor-client privilege over this correspondence. In rejecting the bank’s claim of privilege, the court, per Hutcheon J.A., stated as follows, at p. 513:
The issue in this case is not the knowledge of the bank. The issue is whether the bank was induced to take certain steps in reliance upon the advice from the receiver on legal matters. To take one instance, the receiver, according to the bank, advised the bank that it was not necessary to allow Abacus [the plaintiff debtor] time for payment before the appointment of the receiver. A significant legal decision had been rendered some months earlier to the opposite of that advice. The extent to which the bank had been advised about that decision, not merely of its result, is important in the resolution of the issue whether the bank relied upon the advice of the receiver. [Emphasis added.]
The Court goes on to adopt the reasoning of the United States District Court for the District of Columbia in United States v. Exxon Corp., 94 F.R.D. 246 (1981) as follows, at pp. 248-49:
Most courts considering the matter have concluded that a party waives the protection of the attorney-client privilege when he voluntarily injects into the suit the question of his state of mind. For example, in Anderson v. Nixon, 444 F.Supp. 1195, 1200 (D.D.C. 1978), Judge Gesell stated that as a general principle “a client waives his attorney-client privilege when he brings suit or raises an affirmative defense that makes his intent and knowledge of the law relevant.”
...
Thus, the only way to assess the validity of Exxon’s affirmative defenses, voluntarily injected into this dispute, is to investigate attorney-client communications where Exxon’s interpretation of various DOE policies and directives was established and where Exxon expressed its intentions regarding compliance with those policies and directives.
It appears the court in Rogers found that any privilege with respect to correspondence with the bank’s solicitors had been waived as necessarily inconsistent with its pleading of reliance, even though the bank itself had not referred to, much less relied upon, the existence of advice from its own solicitors.
70 The present case presents a stronger argument for waiver than Rogers. The Crown led evidence from Cpl. Reynolds about his knowledge of the law with respect to reverse sting operations – he testified that he had read the Superior Court decision in Lore, supra, and was of the view that the operation in question was legal. But Cpl. Reynolds also testified, in answer to the appellants’ counsel, that he sought out the opinion of Mr. Leising of the Department of Justice to verify the correctness of his own understanding. The appellants’ counsel recognized that this alone was not enough to waive the privilege. Cpl. Reynolds was simply responding to questions crafted by the appellants, as he was required to do. Appellants’ counsel accepted that he had no right at that point to access the communications. His comment to the judge was simply that “I certainly don’t want to hear the argument that ‘Oh well, the police acted in good faith because they acted on legal advice’”. The critical point is that the Court did hear that precise argument from the Crown at a later date. The RCMP and its legal advisers were explicit in their factum in the Court of Appeal, where it was argued that “regard must be had to the following considerations ... (f) The R.C.M.P. ... consulted with the Department of Justice with regard to any problems of illegality” (emphasis added). We understand that the same position was advanced to the trial judge. As Rogers, supra, shows, it is not always necessary for the client actually to disclose part of the contents of the advice in order to waive privilege to the relevant communications of which it forms a part. It was sufficient in this case for the RCMP to support its good faith argument by undisclosed advice from legal counsel in circumstances where, as here, the existence or non-existence of the asserted good faith depended on the content of that legal advice. The clear implication sought to be conveyed to the court by the RCMP was that Mr. Leising’s advice had assured the RCMP that the proposed reverse sting was legal.
71 Cpl. Reynolds was not required to pledge his belief in the legality of the reverse sting operation (comparable to the bank’s putting in issue its belief in the correctness of the advice it was obtaining from the receiver in Rogers, supra). Nor was it necessary for the RCMP to plead the existence of Mr. Leising’s legal opinion as a factor weighing against the imposition of a stay of proceedings (which went beyond what was done in Rogers). The RCMP and the Crown having done so, however, I do not think disclosure of the advice in question could fairly be withheld.
Result of Non-Disclosure
72 Having found that the requested communications ought to have been disclosed at trial, the Court of Appeal nevertheless excused non-disclosure on the basis that it was willing to “assume the worst” against the Crown, observing at p. 197 that “[o]n any version there is no avoiding that this was very serious misconduct which should not be condoned by the courts in the sense of giving any encouragement to its repetition”.
73 I do not agree, with respect, that non-disclosure of information clearly relevant to the good faith reliance issue can properly be disposed of by adverse inferences. The appellants were entitled to disclosure. The Court of Appeal said that it was prepared to assume the worst against the RCMP and on that basis felt able to use s. 686(1)(b)(iii) of the Code to uphold the decision of the trial judge. The difference between my approach and that of the Court of Appeal is that in my view, with respect, a Department of Justice opinion pronouncing the reverse sting to be unlawful would weigh differently in the balancing of community values than a Department of Justice opinion to the opposite effect. Police illegality of any description is a serious matter. Police illegality that is planned and approved within the RCMP hierarchy and implemented in defiance of legal advice would, if established, suggest a potential systemic problem concerning police accountability and control. The RCMP position, on the other hand, that the Department of Justice lent its support to an illegal venture may, depending on the circumstances, raise a different but still serious dimension to the abuse of process proceeding. In either case, it is difficult to assume “the worst” if neither alternative has been explored to determine what “the worst” is. Because the RCMP made a live issue of the legal advice it received from the Department of Justice, the appellants were and are entitled to get to the bottom of it.
Disclosure Direction
74 The relevant legal advice received by Cpl. Reynolds should be disclosed to the appellants. This is not an “open file” order in respect of the RCMP’s solicitor and client communications. The only legal advice that has to be disclosed is the specific advice relating to the following matters identified by Cpl. Reynolds:
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.
While Cpl. Reynolds also sought advice from Mr. Leising about other matters, including the legality of any release of a sample of hashish to potential buyers, advice in these respects need not be disclosed as they do not relate to a live issue at this stage of the case. If the relevant advice is documented, those portions of the documents that deal with extraneous matters or that describe police methods of criminal investigation may be masked. All that is required is disclosure to the appellants of the bottom line advice to confirm or otherwise the truth of what the courts were advised about the legal opinions provided by the Department of Justice. If there is a dispute concerning the adequacy of disclosure, the disputed documents or information should be provided by the Crown to the trial judge for an initial determination whether this direction has been complied with. The trial judge should then determine what, if any, additional disclosure should be made to the appellants.
75 If it turns out that Mr. Leising simply erred in connection with this particular opinion, disclosure will support the RCMP officers’ claim that they acted in good faith on legal advice, and the application for a stay of proceedings will have to be dealt with on that basis.
Nature of the New Trial
76 Even if it is established that the RCMP proceeded with the reverse sting contrary to the legal advice from the Department of Justice, the result would not automatically be a stay of proceedings. The test in Mack would still apply. The RCMP used its alleged good faith reliance on the Department of Justice legal advice to neutralize or at least blunt any finding of police illegality. If it were determined that the police did not rely on Department of Justice advice, the result would be a finding of police illegality without extenuating circumstances. As discussed in paras. 42 and 43, police illegality does not automatically give rise to a stay of proceedings.
77 If it should turn out that the reverse sting was launched despite legal advice to the contrary, I think this would be an aggravating factor. However, to repeat, it will be up to the trial judge to determine whether or not a stay is warranted in light of all the circumstances, including the countervailing consideration that police conduct did not lead to any serious infringement of the accused’s rights, the RCMP was careful to keep control of the drugs and ensure that none went on the market, and the acknowledged difficulty of combatting drug rings using traditional police methods.
78 In R. v. Pearson, [1998] 3 S.C.R. 620, this Court accepted that in entrapment applications where the innocence of the accused is no longer a live issue, a new trial may be limited to the stay of proceedings application. The authority to make such an order under ss. 686(2) and (8) is explained in Pearson, at para. 16:
... the quashing of the formal order of conviction does not, without more, entail the quashing of the underlying verdict of guilt. In most successful appeals against conviction, the court of appeal which quashes the conviction will also overturn the finding of guilt; however, the latter is not a legally necessary consequence of the former. Under s. 686(8), the court of appeal retains the jurisdiction to make an “additional order” to the effect that, although the formal order of conviction is quashed, the verdict of guilt is affirmed, and the new trial is to be limited to the post-verdict entrapment motion.
As entrapment is simply one form of abuse of process, the same approach should be adopted in the present case.
Conclusion
79 The appeal is allowed in part, a new trial is ordered limited to the issue of whether a stay of proceedings should be granted for abuse of process. The respondent is ordered to disclose to the appellants the materials referred to in para. 74 of these reasons in advance of the retrial.
Appeal allowed in part.
Solicitors for the appellant Campbell: Gold & Fuerst, Toronto.
Solicitor for the appellant Shirose: Irwin Koziebrocki, Toronto.
Solicitor for the respondent: The Attorney General of Canada, Toronto.