On Day 22 of the Lich & Barber trial, there were a series of significant developments.
Diane Magas, counsel for Christ Barber, informed the court of an application filing on behalf of defence. Vanessa Stewart, serving as counsel for OPS (Ottawa Police Service), was also present and shared her materials with the court. Perkins-McVey clarified the two issues at hand: the redactions in OPS emails and the third-party records application concerning five fully redacted pages.
Vanessa Stewart - counsel for OPS - is present in court. She stands and provides her materials to the court.— The Democracy Fund (@TDF_Can) October 26, 2023
Granger began with submissions about the five fully redacted emails, arguing that once these documents were in the possession of the crown, they should no longer be considered third-party records. Perkins-McVey noted that PLT officer Bach had Signal chats on her personal phone, raising questions about the use of her personal phone for other purposes.
The crown responded to Granger's submissions by asserting that OPS should not have provided the five redacted documents in an unredacted format and that the court should not perpetuate what they considered a "wrong" by treating this as disclosure in the crown's possession. Granger contended that the material in question was relevant to the case, emphasizing the crown's burden to prove the existence of litigation privilege.
Granger is making submissions now Regarding the 5 fully redacted emails, his position is that once the documents found their way into the hands of the crown - they are no longer third party records.— The Democracy Fund (@TDF_Can) October 26, 2023
In terms of relevance, Granger referred to the relatively low bar that defence has to meet in order to be successful in a disclosure application. He underlined that the disclosure could significantly impact the defence's conduct and thus clearly exceeded the relevance threshold. He went on to discuss potential uses of the evidence by the defence that would surpass both the "clearly irrelevant" and "likely relevant" thresholds. He reminded the court that PLT (Police Liaison Team) communications had been lost as a result of an alleged software update referenced in evidence given by PLT officer Bach.
Perkins-McVey found it interesting that two PLT officers had their phones wiped. She questioned how many other officers had experienced the same. Granger referenced an email from Officer Li to Officer Bach, suggesting that it was evident by May 2022 that PLT officers were seeking evidence that might have been lost while highlighting the absence of an email response from Bach in the disclosure. He argued that this evidence could also affect the credibility of the officers involved.
Perkins-McVey notes that it is "interesting" that two PLT officers happened to have their phones wiped. She asks: how many other officers had their phones wiped?— The Democracy Fund (@TDF_Can) October 26, 2023
Perkins-McVey began reviewing the emails. She expressed surprise that the Signal chat had not been disclosed in May 2022 when disclosure was being gathered by PLT officers.
Regarding the crown’s solicitor-client privilege redactions, Granger pointed out that solicitor-client privilege typically does not exist between the police and the crown, leading to discussions about the involvement of the crown in such legal discussions with the police. Granger reiterated that this case involves emails between police officers in the course of their professional duties in advancing the case, further underscoring that the solicitor-client relationship, in the context of the redacted emails, does not apply.
Magas took the floor and provided important context for the disclosure requests under discussion. She highlighted that the requests were made in response to the cross-examination about the "phone wipe" incident involving Officer Bach. Magas emphasized that the crown did not object to the relevance of these questions during the cross-examination.
Perkins-McVey noted that these specific questions about Officer Bach’s "phone wipe" were not directed at Officer Cyr during her testimony. This prompted the crown to state that they were not aware of Bach's phone being wiped at the time of her testimony.
Magas then explained that she had sought any additional email responses that emerged from the email disclosure on the previous Friday. In response, the crown questioned the relevance of these additional email responses. Magas argued that this was relevant because it could be connected to the issue of gross negligence and could impact the credibility of the officers involved.
Turning to the matter of the disclosure of Signal chats, Magas pointed out that they were disclosed in the middle of the trial, despite the fact that these chats had been referenced in the emails dating back to May 2022. Notably, many of the officers involved in this heavily redacted email chain are not being called by the crown to testify.
Perkins-McVey is reviewing the emails now and states that she is surprised the Signal chat was not disclosed in May 2022 when disclosure was being gathered by PLT officers.— The Democracy Fund (@TDF_Can) October 26, 2023
Magas then made submissions about solicitor-client privilege, highlighting that it typically flows from the solicitor to the client. She pointed out that many of the emails in question were exchanges between two officers, which raised doubts about the existence of solicitor-client privilege between them. She also referenced another email related to a meeting, and Perkins-McVey inquired about whether notes from this meeting had been provided. Magas confirmed that they had not. Magas further emphasized that not only were the police aware of the PLT Signal chat in May 2022, but due to the involvement of the crown office in these email chains, it could be inferred that the crown office was also aware of these Signal chats in May 2022. Magas stressed the potential impact of this disclosure on the remaining cross-examination of Bach, suggesting that the disclosed emails would assist Bach in refreshing her memory for the rest of the cross-examination. She pointed out that PLT officer Irvine was included in the email chain as well and mentioned that he had testified in several other protester trials. She reasserted that emails to or from Irvine and other officers should not fall under solicitor-client privilege.
Wetscher, representing the crown, responded to the defence submissions. She argued that the disclosure provided by the crown adequately addressed the defence's requests. Wetscher stated that the disclosure sought by defence fell under the "collateral fact" rule. The collateral fact rule restricts the admission of facts that are not directly relevant to the main issues in the case. She asserted that the evidence collected as a result of the investigation had been disclosed to the defence. She added that, aside from potentially bringing a "lost evidence" application, the defence's disclosure requests were not relevant to the current trial.
Perkins-McVey responded by referencing Magas's mention of a "Jordan application" and indicated that the delay in the police's release of the Signal chats until mid-trial would be relevant to such an application. Wetscher reiterated that all the evidence related to the investigation had been disclosed, except for the "lost SMS" updates resulting from the wiped PLT phones. Perkins-McVey suggested that the redacted evidence contained in the emails and blacked-out 5-page document might be relevant to a lost evidence application.
Regarding redactions that the crown had cited as "solicitor-client privilege," Wetscher stated that the crown took no position, suggesting that these matters should be addressed by the Ottawa police and their representatives. As for redactions cited as "litigation privilege," she explained that these redactions were related to ongoing litigation that was not connected to the current trial.
Perkins-McVey inquired if the other solicitor-client privilege redactions were similar, asking if they pertained to another case. Wetscher responded that she couldn't provide further details. Perkins-McVey then questioned why context was provided for some redactions but not others. Wetscher responded by stating that the other solicitor-client redactions "could" relate to this case.
Following this, Ms. Stewart, representing the Ottawa police (OPS), sought standing in the proceedings. Granger, on behalf of the defence, expressed that they did not take a position on Ms. Stewart's standing. However, he asked Perkins-McVey to consider that, from the defence's perspective, both documents should be dealt with as first-party records.
Perkins-McVey explained that the cases provided by the crown dealt with direct communication between the police and their lawyers, whereas in this situation, much of the redacted communication occurred between officers. Granger insisted that the onus was on the crown to justify its refusal to disclose this material, emphasizing that it was material in the crown's possession that they were withholding.
Perkins-McVey inquired if the Ottawa police were in a position to waive privilege, assuming privilege existed in the first place. In response, Stewart stated, "No." Perkins-McVey then asked for the test to pierce solicitor-client privilege. At this point, Magas intervened, stating that the question did not pertain to solicitor-client privilege because the disclosure in question involved communications between officers with no solicitor involved. Magas questioned why the situation was being treated as solicitor-client privilege, asserting that privilege should not be engaged when it's only between officers.
Stewart then began her submissions and argued that the five redacted pages were third-party records. She argued that there was inadvertent disclosure of a third-party record by OPS and suggested that providing a document that should not have been disclosed in the first place should not be admissible. Stewart said that she adopted the crown's position regarding whether the material in question was first-party or third-party.
Perkins-McVey asked Stewart if she had read all the trial transcripts to date, to which Stewart responded that she had not. Nevertheless, Stewart submitted that the five-page document was not relevant to the trial. She added that emails between one police officer and another about legal advice would require piercing solicitor-client privilege. Perkins-McVey pointed out that the communication was between two officers, to which Stewart argued that this was an "arbitrary distinction." Perkins-McVey questioned how communication between two officers could trigger solicitor-client privilege, and Stewart maintained that the conversation was about legal advice received from the crown, justifying the privilege. She cited the Supreme Court of Canada decision in R v. Campbell to support her position.
Perkins-McVey distinguished this case (Lich and Barber) from the Campbell decision, highlighting that it involved police communications rather than communications between the crown and police. Stewart then made submissions on the waiver of privilege. Perkins-McVey noted that it was not clear whether solicitor-client privilege had been sufficiently established.
Magas stood once again and reiterated that Stewart had not sufficiently made a case for solicitor-client privilege. She emphasized the necessity of both a solicitor and a client for the privilege to apply and stated that simply labelling something as "solicitor-client privilege" was inadequate to support the crown's position. Magas argued that the redactions were relevant to determine whether subsequent defence applications, such as abuse of process and lost evidence, would be brought. She reiterated her request for a response regarding when Bach was directed to update her phone and why she updated it when she did, leading to the phone's wipe.
Disclaimer: Please remember this update is given for information purposes only. It is not legal advice. If you have a legal issue, you should consult a lawyer for specific advice.