Truscott (Re)

Truscott (Re) Collection Decisions of the Court of Appeal Date 2005-06-24 Docket numbers C42726, M32513, M32612, M32644 Judges McMurtry, Roy; Doherty, David H.; Moldaver, Michael James Subject Criminal Decision Content DATE: 20050624 DOCKET: M32513, M32612 & M32644 (C42726) COURT OF APPEAL FOR ONTARIO McMURTRY C.J.O., DOHERTY and MOLDAVER JJ.A. IN THE MATTER OF SECTION 696.3 OF THE CRIMINAL CODE, S.C. 2002, C. 13; AND IN THE MATTER OF AN APPLICATION FOR MINISTERIAL REVIEW (MISCARRIAGES OF JUSTICE) SUBMITTED BY STEVEN MURRAY TRUSCOTT IN RESPECT OF HIS CONVICTION AT GODERICH, ONTARIO, ON SEPTEMBER 30, 1959, FOR THE MURDER OF LYNNE HARPER; AND IN THE MATTER OF THE DECISION OF THE MINISTER OF JUSTICE TO REFER THE SAID CONVICTION TO THE COURT OF APPEAL FOR ONTARIO FOR HEARING AND DETERMINATION AS IF IT WERE AN APPEAL BY STEVEN MURRAY TRUSCOTT ON THE ISSUE OF FRESH EVIDENCE, PURSUANT TO SUBSECTION 696.3(3)(a)(ii) OF THE CRIMINAL CODE. B E T W E E N : TRACEY TYLER and TORONTO STAR NEWSPAPERS LIMITED Moving Parties - and - SUN MEDIA CORPORATION, SUN MEDIA (TORONTO) CORPORATION, BOWES PUBLISHERS LIMITED - and - CANADIAN BROADCASTING CORPORATION - and - STEVEN TRUSCOTT, THE ATTORNEY GENERAL OF ONTARIO, and THE MINISTER OF JUSTICE Respondents Paul B. Schabas and Ryder L. Gilliland for the moving parties Toronto Star et al. Alan P. Shanoff for the moving parties Sun Media et al. Daniel J. Henry for the moving party Canadian Broadcasting Corporation Croft Michaelson for the respondent the Minister of Justice Rosella Cornaviera and Gregory J. Tweney for the respondent the Attorney General of Ontario James Lockyer and Hersch E.Wolch, Q.C. for the respondent Steven Truscott Heard: June 21, 2005 ENDORSEMENT [1] In the context of a Reference to this court directed by the Minister of Justice under s. 696.3(3)(a)(ii) of the Criminal Code, various media organizations and Ms. Tracey Tyler have moved for an order granting them access to the Kaufman Report, including the appendices to it (the Report). The Report was prepared by the Honourable Fred Kaufman at the request of the Minister of Justice pursuant to an application by Steven Murray Truscott under s. 690 of the Criminal Code (now s. 696.1) for ministerial review of his conviction for first degree murder on the ground that the conviction constituted a miscarriage of justice. The Report was the basis upon which the Reference was directed and there can be no doubt that its contents are a matter of public interest. [2] Having considered the arguments put forward by the moving parties, we would dismiss the motion on the ground that the Report is protected by solicitor and client privilege and the Minister of Justice has not, to date, waived that privilege. Without in anyway detracting from this Court’s past jurisprudence emphasizing the importance of the freedom of the press protected by s. 2(b) of the Charter, it is common ground that any claim to access that the moving parties may have under s. 2(b) cannot justify access to material that is protected by solicitor and client privilege, absent a waiver of privilege. [3] In addressing the issue whether the Report is privileged, the moving parties did not argue that the Report was not subject to solicitor and client privilege when it was initially provided to the Minister. In our view, it clearly was. The real issue is whether that privilege has been waived. [4] Contrary to the submission of the moving parties, we are satisfied based on the record that the Minister of Justice has continuously taken the position that the Report is protected by solicitor and client privilege, and the Minister has not waived that privilege to date. [5] In a letter dated October 28, 2004 addressed to Chief Justice R. Roy McMurtry, the Minister of Justice sought guidance on whether the Report should be released to the public pending the determination of the Reference to this court and if so, in what form and subject to what restrictions imposed by the court upon publication. Significantly, in the third paragraph of that letter, the Minister wrote: As a matter of principle this Report is protected by solicitor-client privilege. [6] Thereafter, at the request of the court and in order to enable the court to respond to the Minister’s inquiry, the Minister provided a copy of the Report to the court and to the parties (the Attorney General of Ontario, Mr. Steven Truscott and his counsel). The copies of the Report given to the parties were provided upon strict undertakings, entered into by them, that they were not to convey the Report or any information contained in it to any other person and that they were to return all copies of the Report to the Department of Justice immediately following all legal proceedings involving Mr. Truscott, except pursuant to an order of the court. [7] The copy of the Report deposited with the court by the Department of Justice on November 23, 2004 was contained in a box marked “sealed”. The court subsequently informed the Minister that the Report will not form part of the record and will be used for case management purposes only. Indeed, it has not been suggested by any party to the Reference that the Report authored by Justice Kaufman will form part of the court record on the Reference. [8] In our view, the context and circumstances under which copies of the Report were provided to the court and the parties belies the moving parties’ submission that the Minister of Justice intended to and did, in fact, waive solicitor and client privilege over the Report. The strictly controlled production of the Report to the court and the parties, for the limited purposes of determining whether the Report should be made public and for case managing the Reference process, hardly attests to a clear and unequivocal intention on the Minister’s part that the Report should be made available to the public at large. On the contrary, the Minister’s handling of the Report indicates a clear intention to keep the Report confidential as against anyone other than the parties to the Reference and the court. Accordingly, we are satisfied that the privilege continues to attach to the Report and precludes release of any part of it by this court. [9] Counsel for the Minister made it clear in his submissions that subject to concerns about preserving the integrity of the process on the Reference, the Minister considers it to be in the public interest to release the Report, subject to limited editing to protect privacy interests. In that regard, as counsel for the Minister pointed out, the examination conducted by Mr. Kaufman was not constrained by the ordinary rules of admissibility governing court proceedings and the Report could therefore contain information that is rank hearsay, sometimes speculative, and occasionally hurtful to the reputations of individuals. In short, he maintained that legitimate privacy interests may well require editing to protect the reputation of individuals and other legitimate privacy interests. [10] In earlier correspondence with the Minister, the court advised him that it saw sufficient merit in the Provincial Crown’s contention that the release of the Report could compromise the integrity of the Reference to recommend that the full Report not be released at that time. The Minister followed that advice. With the benefit of full submissions from the parties to the Reference and the moving parties on the motion, we are now satisfied that the question of the release of the Report must be addressed in two stages. [11] First, the Minister must determine whether to waive solicitor and client privilege. If he chooses to do so, he will presumably edit the Report to protect the privacy concerns described earlier. Second, if the Minister chooses to waive privilege and release an edited version of the Report, he will presumably advise the parties of his intentions. Should either party oppose the release of the edited Report, that party may bring an appropriate motion on notice to the parties involved in this motion. It would be incumbent on any party resisting disclosure to justify on proper legal principles and evidence the continued non-disclosure of all or part of the Report. [12] The motion is dismissed. Signed: “R. Roy McMurtry CJO” “D. Doherty J.A.” “M. J. Moldaver J.A.”