Case information

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Judgments and orders – Interlocutory orders – Referee’s motion for directions to determine whether there was material non-disclosure by Crown at Lavallee hearing – Was court correct in dismissing motion? – Was court correct in summarily concluding that there was no material non-disclosure by Crown and, if there was, it did not compromise integrity of Lavallee hearing?

Mr. James is a lawyer practising in Ontario who was charged with money laundering offences. The applicants are some of his former clients. The Crown maintained that two of his companies, Eveline Holdings Ltd. (“Eveline”) and Sterling Capital Corporation (“Sterling”) were at all times under his control and direction in connection with those offences. Search warrants were obtained authorizing searches of his home and office. In 2011, a Referee was appointed by the court to segregate documents seized from Mr. James that were protected by solicitor-client privilege from those that were not, in order to assist the court at a subsequent hearing. The Referee’s fees were paid by the Crown. In July, 2014, a hearing pursuant to R. v. Lavallee, 2002 SCC 61 was held to ensure that truly privileged communications remained confidential. The Crown applied to the court for the release of non-privileged material seized from Mr. James. No one appeared for the companies and they did not participate at the hearing. The court held that the two companies were not separate entities from Mr. James for the purpose of claiming solicitor and client privilege. Several months later, the Crown disclosed information indicating that as of February, 2012, another person was the beneficial owner of Eveline and Sterling. The applicants maintained that the Crown had been aware of this information at least six months before the Lavallee hearing and that it was materially different from the representations made by the Crown during the course of the hearing. The Referee concluded that he was obliged to determine whether the fairness of the Lavallee hearing had been compromised by a material non-disclosure by the Crown. By that time, the Referee’s contract had come to an end. The Crown refused the Referee’s request for continued funding and for an extension of time to inquire into the non-disclosure issue. The Referee brought an application for directions. Mr. James and some of his former clients brought an application to re-open the Lavallee hearing, for the return of materials already disclosed to the Crown and for the appointment of a new referee.