R. v. Sipes

2012 BCSC 864 R. v. Sipes IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Sipes, 2012 BCSC 864 Date: 20120611 Docket: 66431-2 OTR060026 Registry: Kelowna Regina v. Dale Gordon Sipes, Leslie Podolski, Sheldon Richard O'Donnell Peter Manolakos and Douglas Corey Brownell Pursuant to s. 486.5 of the Criminal Code, R.S.C. 1985, c. C-46, information that could identify certain witnesses may not be published or broadcast in any manner. The content of these Reasons for Judgment complies with the existing publication bans. Before: The Honourable Mr. Justice Smart IN THE MATTER OF AN APPLICATION TO DETERMINE SOLICITOR-CLIENT PRIVILEGE Reasons for Judgment Counsel for the Crown: D.A. Jardine, P.M. Favell, G.G. Matei, D. McLaughlin, J.M. Robinson, A.S. Burton, C.G. Giles, M.M. Salaysay, S. Nahal Counsel for the Accused Sipes: M.K. Woodall, M.A. Nathanson, G. Ng Counsel for the Accused Podolski: R.C. Claus, M.R. Jetté, G. Docolas Counsel for the Accused O'Donnell: G. Orris, Q.C., C.L. Bauman Counsel for the Accused Manolakos: R.A. (Sandy) Ross, P. Doherty, A. Rinaldis Counsel for the Accused Brownell: C.R. Purves, B.L. Hickford Place and Date of Judgment: Vancouver, B.C. June 11, 2012 I. INTRODUCTION [1] The Ministry of the Attorney General applies to the court for a determination as to whether the contents of certain intercepted private communications (the "calls") are protected by solicitor-client privilege (the "privilege"). The calls were lawfully intercepted by the RCMP pursuant to authorizations granted under Part VI of the Criminal Code, R.S.C. 1985, c. C-46, during the investigation that led to the charges before this Court. II. BACKGROUND AND APPLICABLE LEGAL PRINCIPLES [2] The background to the application is set out in the affidavit of Cpl. Trevor Tribes sworn on September 15, 2010. He attached a 19-page Appendix to his affidavit that lists the calls either under the name of the individual to a particular phone line or under the location where the audio transmission devices were secreted. There are a total of 165 phone calls intercepted on 10 different phone lines. There are 133 audio interceptions that occurred at Matina's restaurant, 34 audio interceptions that occurred at the Manolakos residence, and one audio interception that occurred at a business associated to Sheldon O'Donnell. The calls are listed under each heading by session numbers. [3] I ordered with the consent of all parties that copies of the calls be produced to the court and counsel for the accused. Additional supplementary orders were made to have the recordings of the audio interceptions electronically enhanced and transcripts prepared of those calls. [4] This is the second group of calls that I have reviewed to determine privilege. I gave reasons with respect to the first group: see R. v. Unnamed Respondents, 2008 BCSC 815; R. v. Unnamed Respondents, 2008 BCSC 1491; and R. v. Unnamed Respondents, 2010 BCSC 151. The same procedure for determining privilege was applied with this group of calls as with the first. In determining this application, I have applied the governing legal principles I reviewed in those decisions. I repeat what I said at paras. 30-37 of 2008 BCSC 815: [30] David M. Paciocco & Lee Stuesser, The Law of Evidence, 4th ed. (Toronto: Irwin Law, 2005) at p. 208 provides the following helpful definition of solicitor-client privilege: A communication between a solicitor and a client, of a confidential nature and related to the seeking, forming, or giving of legal advice, is privileged information. (Emphasis added) [31] This definition prescribes a wide ambit for the application of solicitor-client privilege. It is the definition I have applied when determining whether the documents and intercepted communications at issue in these applications are privileged. [32] Paciocco & Stuesser continue their description of the privilege at p. 210: The privilege protects confidential communications that arise on contact. There is no need for a formal retainer. The client's contacts with the lawyer's secretary or clerk are also privileged. So long as the purpose of the contact is the seeking of legal advice, the communications are protected. ... Solicitor-client privilege will protect communications where legal advice is sought; it will not protect advice given by lawyers on matters outside the law. For example, in private practice many lawyers are valued more for their business sense than for their legal acumen. No solicitor-client privilege attaches to advice on purely business matters. [33] Determining whether a particular communication is privileged can be challenging. For example, if a client telephones his or her lawyer and leaves a message on the lawyer's answering machine with their name and a request to return their call, is that message privileged? If a lawyer telephones a client and asks for the telephone number of another individual, is that a privileged communication? These are examples from some of the communications that have been intercepted. [34] These examples demonstrate why both context and content are important when determining privilege. This was explained by Doherty J.A. in General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321, 180 D.L.R. (4th) 241 (C.A.) [General Accident cited to O.R.]. At p. 348 he said: The adjudication of claims to client-solicitor privilege must be fact sensitive in the sense that the determination must depend on the evidence adduced to support the claim and on the context in which the claim is made. [35] Doherty J.A. also emphasized the importance of considering the purpose which underlies the rule when determining its application. He stated at p. 348: In summary, I see the privilege as serving the following purposes: promoting frank communications between client and solicitor where legal advice is being sought or given, facilitating access to justice, recognizing the inherent value of personal autonomy and affirming the efficacy of the adversarial process. Each of these purposes should guide the application of the established criteria when determining the existence of client-solicitor privilege in specific fact situations. [36] When considering whether the intercepted communications at issue are privileged, I am guided by the purpose underlying solicitor-client privilege, the content of the communication, and the context in which the communication occurred. Unfortunately, the information I have concerning the circumstances surrounding each communication is limited. [37] I am mindful that I must be satisfied on a balance of probabilities that the intercepted communications are not privileged before ordering their release to the RCMP. [Emphasis in original.] [5] Determining privilege with this group of calls, like the first group, has been made more difficult because the identity of the parties is not always clear and because the quality of the audio interceptions is often so poor that it is extremely difficult to determine what is said and by whom. [6] However, as we are now almost at the end of the Crown's case in the trial of R. v. Sipes (KE 66431-2), I have heard evidence over the last year about many of the individuals and events discussed in the calls. Some of the parties to the calls have also testified before me. This provides me with additional context and information I did not have when I considered the first group of calls. As such, I am better able now to understand some of what is being discussed during the calls and to better determine who is speaking. [7] The lawyer involved in most of the calls is William Mastop. He practiced in Vernon, and between 2004 and 2006 represented many members of the Greeks, including some of the accused. It is important to observe that his relationship with Peter Manolakos was more than just a professional one. They appear to have been friends and to have socialized together. In addition, after September 2005 Mastop appears to have provided business advice and assistance to Manolakos with respect to the operation of Matina's restaurant. Thus, the fact there was a communication between them does not create any presumption that it was likely for the purpose of giving or receiving legal advice. [8] As I did with the first group of calls, I am not ordering disclosure of these calls unless I am satisfied they are not privileged. When uncertain, I have erred on the side of non-disclosure. [9] Waiver of privilege has been obtained from [Content Redacted]. I have listened to all of the calls to confirm, when able, that those who have waived privilege are a party to a call before ordering disclosure. There are many calls where the individual associated to a particular phone line is not a party to calls on that line. [10] The Crown is no longer seeking disclosure of some calls. I have not considered these calls and have made a note of them where applicable to ensure they are not disclosed. III. THE CALLS [11] I will list and identify the calls according to the name of the individual associated to a particular line and the session numbers of calls intercepted on that line, or by the place of audio interceptions and the session numbers of the calls intercepted from that location. A. [Content Redacted] [12] This call (session 4558) occurred on September 5, 2005. The parties to the call are an unknown woman and Mastop, not [Content Redacted]. There is nothing in the content of the call to suggest it is privileged. It may be disclosed to the RCMP. B. Doug Brownell [13] Counsel for Brownell provided written submissions concerning these 42 calls (Exhibit 30). He numbered the calls but I am not clear whether they are numbered according to the order in which they are listed on pages 2 and 3 of Appendix A or the order they appear of the disk (Exhibit 23 D). [14] He claims privilege over the calls he has numbered as: 1-4; 28-30; 32; 35; 36; and 40-42. [15] I have also numbered the calls from 1 to 42 according to where they are on the list provided at pages 2 and 3. Call 1 is the first call listed on page 2. It is identified as session 80. Call 42 is the last call listed on page 3. It is identified as session 5958. [16] Based on that numbering system, I find that the following calls are protected by privilege or, at least, I am not satisfied they are not privileged: · calls 2, 4 and 5 (sessions 84, 1697 and 1773); · calls 30 - 32 (sessions 3761, 4294 and 4476); · calls 34 and 35 (sessions 5699 and 5700); · calls 37 and 38 (sessions 6269 and 6900); and · calls 41 and 42 (sessions 79 and 5958). [17] In my view, calls 1, 28, 29, 36 and 40 are not privileged, as are the other calls at pages 2 and 3 of Appendix A. [18] In summary, sessions 84, 1697, 1773, 3761, 4294, 4476, 5699, 5700, 6269, 6900, 79 and 5958 shall not be disclosed. All of the other listed sessions may be. C. Sheldon O'Donnell [19] Session 1856 is a call involving Leon Abbott, not O'Donnell. The Crown is not seeking disclosure of this call. Session 475 is a brief call, the contents and context of which are not sufficiently clear to permit me to be satisfied the call is not privileged. The same applies to session 7 on the audio line. [20] Accordingly, I order sessions 1856, 475 and 7 shall not be disclosed to the RCMP. D. Les Podolski [21] Sessions 1911-07-29 and 32 involve persons other than Podolski or the other accused. The Crown is no longer seeking disclosure of these calls. [22] With respect to the other four calls, counsel for Podolski only asserts privilege over session 3345. It is a call to a lawyer other than Mastop or Sandy Watt. I agree with counsel that this call is clearly privileged. I am satisfied the other three calls, sessions 1552, 2947 and 139 are not protected by privilege and may be disclosed. [23] Sessions 1911-07-29, 32 and 3345 shall not be disclosed. E. Dale Sipes [24] Session 534 is a woman obtaining legal advice. The Crown is no longer seeking disclosure of this call. Session 862 is a call which I am not satisfied is not privileged. [25] Sessions 534 and 862 shall not be disclosed. F. [Content Redacted] [26] There are 12 calls intercepted on this line. [27] Call 1 (session 1614) is a call from Kevin Couture to Watt. The call is likely privileged. It shall not be disclosed [28] Call 2 (session 8) is from [Content Redacted] to Mastop. The phone is passed to another male who discusses a legal problem with Mastop. The call is privileged. It shall not be disclosed. [29] Call 3 (session 685) is from unnamed male, who is not [Content Redacted], to Watt. The call is privileged and shall not be disclosed. [30] Call 4 (session 1077) is from [Content Redacted] to Mastop although Manolakos speaks briefly to Mastop at the end of the call. Nothing said between Manolakos and Mastop is privileged. The call may be disclosed. [31] Call 5 (session 1647) is not privileged. The interception of this call appears to have been terminated prematurely. Call 7 (session 5653) is a call from Nicki to Mastop. I am satisfied the call is not privileged. These two calls may be disclosed. [32] Call 6 (session 3976) is a call from Nicki to Mastop. Call 8 (session 5873) is from a woman, perhaps Nicki, to Mastop. I am satisfied both calls may be privileged. They shall not be disclosed. [33] Call 9 (session 648) has [Content Redacted], O'Donnell and Sipes speaking on the cell phone to Mastop for approximately 50 minutes while they are waiting in a vehicle while detained by the RCMP. They are seeking legal advice or assistance from Mastop. Even though the cell phone was on speaker, in my view, they likely intended their discussions with Mastop to be confidential, at least for most of the call. This call shall not be disclosed. [34] Call 10 (session 5449) involves a person named Shawn speaking to Mastop seeking his legal assistance and advice. Call 11 (session 6190) involves O'Donnell speaking to Mastop. Call 12 (session 21) involves several people getting legal advice, including Manolakos. I am satisfied all three calls are or may be privileged. They shall not be disclosed. [35] In summary, sessions 1077, 1647 and 5653 may be disclosed. Sessions 1614, 8, 685, 3976, 5873, 648, 5449, 6190 and 21 shall not be. G. Manolakos Residence [36] There are 70 intercepted calls. As I understand from his submissions, counsel for Manolakos argues the following calls are either privileged or may be privileged and should not disclosed: sessions 391; 445; 717; 736; 805; 1057; 1094; 1473; 1478; 1499; 1528; 651; 638; 639; 2835; 2836; 2002; 2612; 2712; 4138; 4545; and the last portion of sessions 676/4568 (these are two interceptions of the same call). [37] Sessions 78, 1280 and 203 involve Tyler Rogers, Russ Crumley and Lauren Hubbard and may be privileged. The Crown is no longer seeking disclosure of these calls. [38] I agree with Mr. Ross that the following calls are either privileged or may be and should not be disclosed: sessions 1094, 4137 2835, 2836, 638, 639, 651, 391, 736, 445, 805, 1057, 1473, 1478, 1499, 2002, 4138, 1528, and the last portion of 676/4568. In addition, session 1894 involves Cody Rogers obtaining legal advice and is privileged. [39] I respectfully disagree with Mr. Ross that sessions 717, 2612, 2712, and 4545 concern obtaining confidential legal advice. In my view, these calls are not protected by solicitor-client privilege. [40] In addition, I am satisfied the following sessions are not privileged: 400; 929; 932; 1203; 518; 368; 587; 717; 752; 755; 806; 1072; 1073; 1114; 1116; 1339; 1940; 90; 368;1101; 1290; 1498; 1589; 1742; 2272; 2612; 2712; 2753; 2771; 2863; 2866; 3268; 3286; 3735; 3974; 4136; 4284; 4286; and 4545. [41] Calls 93, 1973, 241 and 242 appear to involve Rogers but are not privileged in any event. Session 956 involves [Content Redacted] and Watt. The speaker in session 1418 sounds like [Content Redacted] and the speaker in session 1203 sounds like [Content Redacted]. Both calls are not privileged in any event. [42] The first part of session 676/4568 is between [Content Redacted] and Manolakos during which [Content Redacted] discusses Insp. Haslett talking to him about the body of woman that has been found. This first part of the session is clearly not privileged. During the later part of the call Manolakos speaks to Mastop. This last portion of the call commencing at 2 minutes and 55 seconds is privileged. [43] During session 737 Manolakos asks Mastop to deliver a message to another client Mastop apparently represents. In my view, this call does not involve the giving or receiving of legal advice and is not privileged. [44] In summary, the following sessions may be disclosed to the Crown: 717; 2612; 2712; 4545; 400; 929; 932; 1203; 518; 368; 587; 717; 752; 755; 806; 1072; 1073; 1114; 1116; 1339; 1940; 90; 368;1101; 1290; 1498; 1589; 1742; 2272; 2612; 2712; 2753; 2771; 2863; 2866; 3268; 3286; 3735; 3974; 4136; 4284; 4286; 4545; 93; 1973; 241; 242; 956; 1418; 1203; the first 2 minutes and 55 seconds of session 676/4568; and 737. [45] The following sessions may not be disclosed: 78; 1280; 203; 1094; 4137; 2835; 2836; 638; 639; 651; 391; 736; 445; 805; 1057; 1473; 1478; 1499; 2002; 4138; 1528; the last portion of 676/4568; and 1894. H. Manolakos' Residence Audio [46] There are 34 interceptions which I will refer to as interceptions rather than calls. The recordings of these interceptions have been enhanced and transcribed. Many of the interceptions are snippets of a continuing conversation. The same difficulties I described in my previous decision concerning audio interceptions at the restaurant and Manolakos' residence apply to these interceptions. [47] Counsel for Manolakos asserts privilege with respect to interceptions 1-3 (sessions 701-703) and interceptions 15-17 (sessions 1994-1996). [48] I agree with Mr. Ross concerning interceptions 1-3 (sessions 701-703). They involve a discussion between Tim Williams, Manolakos and Mastop over six or seven minutes. I am not satisfied the interceptions are not privileged given the subject matter of the discussion. The interceptions shall not be disclosed. [49] Interceptions 4-7 (sessions 704-707) involve Donna Backman and Mastop. They occur within a few minutes of interceptions 1-3. They are very brief. There is insufficient information for me to determine whether they are privileged but they could be. They shall not be disclosed. [50] There is nothing in the contents of interceptions 8-14 to suggest they contain privileged communications. They may be disclosed. [51] Interceptions 15-17 (sessions 1994-1996) involve a different lawyer, Watt. The three interceptions occurred collectively over a few minutes. The content of what can be heard suggests the discussions concerns court proceedings. I cannot be satisfied that what is being discussed is not protected by privilege. They shall not be disclosed. [52] There is no assertion of privilege by Manolakos for any of the remaining interceptions and I am satisfied they may be disclosed except for interception 19 (session 2519) which intercepts Jason Hallas speaking on the phone to a lawyer and is privileged. [53] In summary, sessions 701-707, 1994-1996, and 2519 shall not be disclosed. The remaining may be. I. Matina's Audio Interceptions [54] I will again refer to these interceptions as interceptions rather than as calls. [55] The recordings of these interceptions have also been enhanced and transcribed. There are 153 interceptions although many of them overlap; that is, some longer interceptions include the contents of shorter interceptions. [56] Mr. Ross asserts privilege with respect to interceptions 3, 4, 69, 70, 79, 80, 87 and 120. [57] Despite the best efforts of the RCMP to enhance the recordings of these interceptions and to have them transcribed, there remains much that cannot be clearly heard and could not be transcribed. When what has been transcribed discloses a discussion that may be privileged, I have erred on the side of non-disclosure. [58] Interceptions 3 and 4 (sessions 351 and 352) occur within a few minutes of each other. Both may involve privileged communications. They shall not be disclosed. [59] Interception 70 (session 829) is included within interception 69 (session 828). The speakers are Mastop, Manolakos, and an unknown woman. There is a reference to someone possibly doing "time" when he is sentenced and to money being available for him - presumably to purchase things while he is jail. In my view, this discussion involves someone else and is not a privileged communication. It may be disclosed. [60] Interception 79 (session 1427) occurs on October 31, 2005 and involves a number of individuals including Mastop. Mr. Ross argues the interception may be privileged because it includes a discussion of "equity" and the operation of Matina's. In my view, any advice that may have been given by Mastop was business advice not legal advice and was not intended to be confidential in any event. This interception is not privileged and may be disclosed. [61] Interception 80 (session 1428) involves a woman discussing obtaining a restraining order. It may be privileged and in the absence of more information I will err of the side of caution and order that it not be disclosed. [62] The content of interception 87 (session 1801) is not clear but there is reference to something being sealed by a lawyer. Again, I will err on the side of caution and order that it not be disclosed. [63] Interception 120 (session 5076) is brief and lacks context. There is a discussion about a trial and attending court between an unknown woman and Mastop. I order that it not be disclosed. [64] I have reviewed all of the other interceptions. I am satisfied that none of them include privileged communications. [65] In summary all of the interceptions may be disclosed except sessions 351, 352, 1428, 1801 and 5076. IV. CONCLUSION [66] For the reasons given I order that following sessions shall remain sealed and not disclosed to the RCMP: 84; 1697; 1773; 3761; 4294; 4476; 5699; 5700; 6269; 6900; 79; 5958; 1856; 475; 7; 1911-07-29; 32; 3345; 534; 862; 1614; 8; 685; 3976; 5873; 648; 5449; 6190; 21; 78; 1280; 203; 1094; 4137; 2835; 2836; 638; 639; 651; 391; 736; 445; 805; 1057; 1473; 1478; 1499; 2002; 4138; 1528; the last portion of 676/4568; 1894; 701-707; 1994-1996; 2519; 351; 352; 1428; 1801; and 5076. [67] All other calls still sought by the Crown may be disclosed to the RCMP as identified above. "SMART J."