Savard, Doyon, Healy

The respondents were charged with various offences, including fraud, breach of trust, municipal corruption and conspiracy, following an investigation conducted by the Unité permanente anticorruption (Permanent Anti-corruption Unit) (“UPAC”) known as “projet Fronde”. In the course of that investigation, UPAC obtained an authorization to intercept the private communications of 39 “targets”. That authorization included a clause that allowed the interception of communications between the targets and “unknown persons”. Among the respondents, only Frank Zampino and Bernard Poulin were targets. That wiretap operation led to the interception of numerous private communications. Of those interceptions, several hundred involved the participation of lawyers. Investigators had access to the content of some of these, even though a number of them were privileged.

A few months prior to the beginning of the trial, Mr. Zampino filed motion for a stay of proceedings, invoking an infringement of his rights as guaranteed by ss. 7, 8 and 11(d) of the Canadian Charter of Rights and Freedoms (“Charter”), which also constituted an abuse of process. The trial judge granted that motion, declared that the wiretap authorization was invalid and ordered a stay of the proceedings against Mr. Zampino. Following that decision, the other respondents filed a motion to stay proceedings based on similar considerations. The judge granted their motion and ordered a stay of the proceedings against the other respondents.

The Crown appeals those two decisions. It argues that the judge erred in finding that the terms of the wiretap authorization, as well as its execution, did not sufficiently protect solicitor-client privilege and led to a violation of ss. 7, 8 and 11(d) of the Charter. It also argues that the judge erred in finding that the state’s conduct constituted an abuse of process justifying a stay of proceedings against the respondents.

The Court allows the appeal.

The Court finds that the judge erred by declaring that the wiretap authorization was, in itself, abusive. The judge could not hold that the measures put in place were abusive, since they were all allowed by s. 186(8) Cr. C., notably the fact that the authorization was coupled with a general warrant, an assistance order, a warrant authorizing a tracking device and a warrant allowing the use of a transmission data recorder. Police investigations in matters such as corruption, conspiracy and fraud sometimes require extensive measures, provided that they are within the law.

The Court is of the view that the judge made errors of law in the analysis of the clause dealing with solicitor-client privilege.

The Cour nevertheless considers that the clause did not adequately protect solicitor-client privilege, since it provided that all communications involving a lawyer be sent to the authorizing judge, without there being reasonable grounds to believe that they were not privileged. Solicitor-client privilege is a fundamental concept in Canadian law and it must be protected by limiting to the fullest extent possible access to privileged conversations so that clients’ confidence in their relation with their lawyers not be undermined. A clause such as that provided in Pasquin c. R, 2014 QCCA 786, better protects solicitor-client privilege and should become the norm. Consequently, when an intercepted communication involves a lawyer, it cannot be sent to the authorizing judge unless the police have reasonable grounds to believe that it is not privileged. This high standard seeks to minimize the infringement of the targets’ rights, while allowing police to monitor communications, with a judge’s authorization, if there are reasonable grounds to believe that the presumption of privilege can be rebutted. Because the authorization at issue in the case at bar did not meet that standard, the Court finds that it infringed the protection of s. 8 of the Charter.

Although it finds that the respondents’ rights were violated, the Court is of the view, however, that such violations were not so serious as to warrant a stay of proceedings. Although the police’s conduct during the wiretap operation may be marked by negligence, the seriousness of that conduct was considerably less than that found by the trial judge, such that a stay of proceedings is not the only conceivable remedy. Rather, as a remedy, the Court orders the exclusion of the wiretap evidence. It therefore quashes the judgment in first instance and orders a trial.

Text of the decision: R. c. Zampino; R. c. Marcil et al.