R. v. Aitken

2008 BCSC 744 R. v. Aitken IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Aitken, 2008 BCSC 744 Date: 20080611 Docket: 135927-2 Registry: Victoria Regina v. Daniel Christopher Miles Aitken Publication Restriction Notice: During this proceeding, a publication ban pursuant to s. 648 of the Criminal Code was in effect. That publication Ban expired on January 25, 2009 Before: The Honourable Madam Justice Satanove Reasons for Judgment Counsel for the Crown: Peter A. Juk Kimberly Henders Miller Counsel for the Accused: J.M. Peter Firestone Date and Place of Trial/Hearing: May 23 2008 Victoria, B.C. [1] During the disclosure process, Crown inadvertently disclosed 44 documents, parts of which Crown maintains were the subject of solicitor/client privilege. Defence counsel quite properly returned the documents on request from Crown counsel who then provided redacted copies of the same documents. Defence counsel now applies for a judicial determination of the Crown's claim of privilege over the unredacted copies. [2] Crown submits that the redacted portions of the documents fall into two categories: 1. legal advice between Crown and the RCMP; and 2. general communications between Crown and the RCMP regarding internal, administrative matters. [3] Defence counsel submits that the police are not "clients" of the Crown and are not entitled to rely on solicitor/client privilege. Defence counsel concedes that the accused is not entitled to any documents in Crown's working brief that may deal with tactics, strategies or trial preparation. [4] The 44 documents have been sealed and marked. I have reviewed them in their entirety. I am guided by the principles in R. v. Campbell, [1999] 1 S.C.R. 565 that: 1. To determine whether or not privilege attaches to a communication, the court must look at the nature of the relationship between the communicators, the subject matter of the advice and the circumstances in which the advice was sought and rendered. 2. Not everything done by a government lawyer attracts solicitor/client privilege. For example, policy, corporate or business advice is not protected. 3. The existence of an agency relationship is not essential to the creation of a solicitor/client privilege. 4. It is of great importance that the RCMP be able to obtain professional legal advice in connection with a criminal investigation without the chilling effect of potential disclosure of their confidences in subsequent proceedings. [5] Applying the above principles to the documents before me I find that the majority of the documents relate to communications between Crown counsel and members of the RCMP, or Victoria City Police, but do not pertain to legal advice. However, most of these documents clearly fall within Crown counsel's working brief, relating to trial preparation and in a few instances to what may be described as "strategies". There are a few documents which may pertain to the accused but not with respect to the charges before me and therefore would not be relevant to this case. There are a few documents that contain requests for legal advice and responses from Crown counsel to RCMP members that are clearly privileged. Finally, there are a number of documents that pertain to the process of document disclosure by the Crown. I understand that the disclosure process in this case has now been completed, and these communications are not relevant to any of the matters in issue. [6] I am satisfied from my review of the sealed documents that none of them need to be disclosed. To be precise, I find that the documents at tabs 1, 5, 6, 8, 12, 14, 15, 16, 18, 19, 23, 24, 25, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 41, 43 and part of 44 all fall within the solicitor's brief rule and are therefore privileged. The documents at tabs 4, 11, 13, 42 and part of 44 all pertain to legal advice and are therefore privileged. The documents at the remaining tabs are not privileged, but they are irrelevant to the matters in issue in this case. [7] The application of the accused for disclosure of the unredacted documents is dismissed. "The Honourable Madam Justice Satanove"