R. v. Wijesinha [1995] 3 S.C.R. 422: Law Society investigation: Tapes of conversations made without warrant but with consent of one of the parties: Whether or not admission of tapes would bring administration of justice into disrepute

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Criminal law - Obstruction of justice - Law Society investigation - False declarations made on behalf of and at behest of person under investigation - Whether or not obstruction of justice - Whether or not term "course of justice" includes investigations - Criminal Code, R.S.C., 1985, c. C-46, ss. 118, 139(1), (2), (3).

Constitutional law - Charter of Rights - Admissibility - Bringing administration of justice into disrepute - Infringement of right against unreasonable search and seizure - Tapes of conversations made without warrant but with consent of one of the parties pursuant to current legal advice conceded to infringe s. 8 right to freedom from unreasonable search and seizure - Whether or not admission of tapes would bring administration of justice into disrepute - Canadian Charter of Rights and Freedoms, s. 8.

Trial - Privilege - Solicitor-client privilege - Privilege claimed in false affidavits made in response to Law Society investigation - Affidavits prepared to further criminal purpose of obstructing justice - Whether or not privilege attaching to documents.

Appellant, a lawyer, offered to pay a police officer a referral fee for every client retained after failing a breathalyzer test. The constable reported the appellant's proposition to his superiors. A police investigation confirmed, by conversations intercepted through the use of a body pack, that three persons referred had been retained and that another officer was involved in the scheme. The police were given legal advice that this type of interception was constitutionally valid and that no criminal offence was being committed as long as witnesses were not being subverted. The police investigators called the Law Society Discipline Committee for advice, and although the police did not pursue their investigation of the appellant, they continued to communicate with and supply information to the Law Society.

The Law Society commenced its own investigation. It advised the appellant of the nature of his alleged misconduct, gave him details of the evidence and invited him to respond. The officer involved in the scheme and the three referral clients complied with appellant's request that they sign statutory declarations prepared by him. The statutory declarations sworn by the three clients denied being directed to the appellant by a police officer. The one sworn by the officer stated that the appellant had never paid or offered to pay him any money for referring potential clients to him. At trial, the three clients and the officer involved in the scheme testified that these portions of the statutory declarations were false. The declarations, as well, were sworn by a commissioner whose commission or authority did not extend to the declarations sworn here.

The appellant was charged with professional misconduct pursuant to the provisions of the Law Society Act. The police resumed their investigation of the appellant and learned that the Law Society believed that the statutory declarations which the appellant had submitted to it were false, and charged him with four counts of attempting to obstruct justice (s. 139 of the Criminal Code).

At trial, the wiretap evidence, the statutory declarations and viva voce evidence pertaining to them, were admitted notwithstanding appellant's challenges. The appellant was convicted and the conviction was unanimously upheld in the Court of Appeal. At issue here was whether the term "course of justice" in s. 139 includes investigations and the scope of that term. Also at issue was whether the tapes of the intercepted conversations were properly admissible, whether the solemn declarations were defective, and if found defective, whether they should have been excluded because of solicitor-client privilege and because to admit them would bring the administration of justice into disrepute contrary to s. 24(2) of the Charter.

Held: The appeal should be dismissed.

The term "course of justice" in s. 139(2) of the Code includes investigations. Section 139 and s. 118, which defines judicial proceeding, should be read together. The definition of judicial proceeding in s. 118 accordingly applies to all three subsections of s. 139 and the phrase "course of justice" in s. 139(2) is therefore not limited to existing or proposed judicial proceedings. A serious perversion of justice can occur just as readily in the work of administrative tribunals or disciplinary bodies. An attempt to mislead an investigation into facts which could give rise to a disciplinary hearing constitutes an attempt to pervert the course of justice. The commencement of proceedings invoking a tribunal's jurisdiction to enforce rights and liabilities may set in train a relevant "course of justice".

The Law Society's disciplinary proceedings comes within ss. 118(d) (the person presiding can administer oaths and compel evidence) and (e) (a legal right or a legal liability may be established by the tribunal). An investigation is an essential first step in any judicial or quasi-judicial proceeding and may result in prosecution. To mislead knowingly during the first step of the investigation perverts the course of justice. Here, a conclusion by the Law Society staff that the allegations were unfounded would result in disciplinary proceedings not being commenced. Since a false statement at the stage of the investigation could prevent any proceedings from taking place and thus pervert the course of justice, s. 139(2) must encompass investigatory proceedings. Section 139(2) may be applicable to a body created by statute and required to judge and in doing so to act in a judicial manner.

The admission of the tapes of intercepted conversations, even though the interceptions violated the appellant's s. 8 Charter right to be free from unreasonable search, did not bring the administration of justice into disrepute contrary to s. 24(2) of the Charter. The Charter breach was not serious. The fairness of the trial was not affected. The appellant was not conscripted into incriminating himself in these conversations and would have sought out and spoken to officer wearing the body pack to solicit clients. Both the police and the Law Society acted in good faith with no trickery or activity as an agent provocateur. The police acted in conformity with what they very reasonably believed to be the law as it existed at the time. The situation of a police officer acting in breach of the police code of professional conduct and of other officers were being approached in the same manner was serious. Indeed, it would have reflected adversely upon the administration of justice if the evidence had not been admitted.

The actus reus of obstructing justice was committed even if the impugned affidavits were defective. The appellant had full control over the signing of the declarations and knowingly had the four declarants sign these statements, which he knew to be false. He also was aware that the "affidavits" were sworn in circumstances beyond the powers of the commissioner for oaths. These documents were put forward with the intent of misleading the Law Society and to argue that they should not be considered because of their allegedly defective form was to use appellant's initial deceit of the Law Society to protect himself.

Whether or not the documents were improperly executed did not need to be decided. For the purposes of s. 139(2) of the Code, what is put forward as an affidavit or solemn declaration should ordinarily be accepted as such. The declarations do not in fact need to be statutory declarations: it is not an essential element of the offence of obstructing justice and does not form part of the actus reus. Even if the documents tendered were improperly executed, the offence would have still been committed, since the appellant knowingly tendered false documents which were purported to have been duly executed.

The documents in question were submitted by a lawyer to the Law Society and were not covered by solicitor-client privilege. The communication was made because the Law Society was investigating the appellant's practice. The false declarations were intended to deceive the Law Society in its deliberations as to whether or not discipline proceedings should be instituted. Solicitor-client privilege cannot attach to the declarations in those circumstances. Even if the solicitor-client privilege attached to the context in which the declarations were made, the documents were prepared and submitted to further the criminal purpose of obstructing justice and any privilege that might have attached to them was certainly removed.

The appellant cannot claim a constitutional remedy pursuant to s. 24(2) based upon the alleged violation of the affiants' Charter rights. This provision provides a remedy only to an individual whose Charter rights have been violated. The affiants' Charter rights, however, were not violated because the declarations were executed with the specific intention of assisting the appellant with regard to the Law Society investigation and with the expectation that the Law Society would act upon them. The documents could not be considered privileged in the circumstances.

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