ODO v JOHN DOE #1

Following a fatal police shooting, Edmonton Police Service (“EPS”) received information from two confidential sources about death threats against involved officers. EPS asserted confidential informant privilege over those sources. In support of a Restricted Access Application, a police sergeant swore two Affidavits. The second Affidavit clarified and identified the sources of information contained in the first Affidavit. For instance, the second affidavit identified that the sergeant’s belief in the first Affidavit that certain information was protected by confidential informant privilege, was based, in part, on legal advice from EPS in-house counsel. During cross-examination, the sergeant confirmed his reliance on that advice.

The Applicants sought a declaration that the Respondents waived solicitor-client privilege by referencing the legal advice provided by EPS in-house counsel in the second Affidavit, arguing that it constituted a broad, voluntary waiver of solicitor-client privilege over the substance of that advice. In the alternative, that fairness required disclosure so that the Applicants could meaningfully test the confidential informant claim. The Applicants also claimed that counsel for EPS on the confidential informant issue must be disqualified and removed as counsel due to becoming a witness because of the alleged waiver of solicitor-client privilege. The Respondents acknowledged a limited waiver, restricted to identifying the source of the sergeant’s belief in the Affidavit, but denied any broader waiver over the substance of the legal advice.

Associate Chief Justice Nielsen noted that the onus was on the Applicants to establish that there had been a broad waiver of the advice provided to the sergeant by EPS’ in-house counsel, but found that the Applicants failed to do so. The Court determined that there was no broad waiver of privilege, and that the references to the legal advice in the second Affidavit were limited to fulfilling the requirement pursuant to Rule 13.18(2) that statements of belief in Affidavits must be accompanied by disclosure of the source of the underlying information. The Court emphasized that the legal advice was not relied upon to substantiate the Defendant’s claims, distinguishing it from precedents where privilege was waived due to relying on legal advice to advance a claim. Accordingly, there was voluntary or implied waiver beyond the limited waiver acknowledged by the Respondents.

The Court agreed with the Respondents’ argument that EPS’s counsel could not be removed as counsel of record because he was not counsel of record as defined pursuant to Rule 2.24(1). Rather, he was in-house counsel with EPS and duty bound to protect confidential informant privilege. Neilsen A.C.J. saw no real objective likelihood that the counsel would be called as a witness merely because he was named as a source of legal advice in the second Affidavit. Therefore, disqualifying him would result in further inefficiencies and cause unnecessary delay.

The Application to pierce solicitor-client privilege and for an Order disqualifying and removing EPS’s counsel was dismissed. Pursuant to Rules 10.29, 10.31 and 10.33(1), the Court granted the Respondents Schedule “C” Costs, noting that the issues raised by the Applicants neither advanced the litigation meaningfully toward Trial or even resolution of the Restricted Court Access Application, but rather generated delay and consumed scant judicial resources.