Law in Quebec

“The ruling has the merit of clarifying certain gray zones,” remarked Jean-Claude Hébert, a well-known Montreal criminal lawyer. “Moreover, Justice Downs performed his role as a constitutional watchdog, without worrying about public opinion over the acquittal of two individuals facing serious charges who allegedly involved in the Mafia.”

Leonardo Rizzuto, a lawyer and son of now deceased Mafia boss Vito Rizzuto, and Stefano Sollecito, whose father was murdered in 2016, were charged following a two-year police investigation that begun on January 2013 into Montreal drug trafficking. One of the main targets of the investigation was Montreal lawyer Loris Cavaliere, a longtime defence lawyer of the Montreal Mafia who received a 34-month prison sentence after in 2017 after pleading guilty to gangsterism and weapon possession charges. On January 2014, Court of Quebec Judge Chantale Pelletier authorized the surreptitious audio and video wiretapping of 64 individuals, including  Sollecito, in Cavaliere’s law office. On February 2015, Judge Pelletier signed a second wiretap authorization that targeted Rizzuto as well.

The two Montrealers filed a Garofoli application to exclude the wiretap evidence that was collected, arguing that there were multiple breaches of solicitor-client privilege that violated s. 7 and s. 8 of the Canadian Charter of Rights and Freedoms. The accused maintained that article 186(2) of the Criminal Code is unconstitutional and infringes the Charter. Article 186 (2) stipulates that no authorization may be given to intercept a private communication at the office or residence of a lawyer unless the judge to whom the application is made is satisfied there are reasonable grounds to believe that the solicitor has been or is about to become a party to an offence. Rizzuto and Sollecito also argued that certain clauses of the authorization that allowed the wiretapping were illegal as it went beyond the scope of article 186(2). They also argued that the authorizations were executed in an unreasonable manner, were abusive and in violation of the Charter. They contended that this was a “clear case” where a stay of proceedings was appropriate, and failing that, that wiretap evidence should be excluded.

Justice Downs declined to order a stay of proceedings but held that the wiretap evidence should be excluded, and since most of the Crown’s evidence against the pair came from the intercepted conversations the two alleged Mafiosi were acquitted.

Taking into account the principle of the presumption of conformity of a piece of legislation, Justice Downs adopted a “restrictive interpretation” of article 186(2) and held that it was constitutionally valid, pointed out Quebec City criminal lawyer Julien Grégoire of Gagnon & Associés.

But Justice Downs also held that the authorization granted by Judge Pelletier was too large. Conscious that there was a high risk that the wiretap would intercept privileged communications between a lawyer and their clients, Judge Pelletier restricted the wiretaps to the targets and to people that according to police were related to the investigation. “However, what an authorization permits should never be left to the appreciation or interpretation of police,” said Justice Downs in Rizzuto c. R. 2018 QCCS 582, a 59-page ruling that is one of a handful that provides an intriguing and detailed look into the wiretapping methods and techniques used by police. Parts of the ruling are still under a publication ban.

Justice Downs also castigated police for being negligent, a finding that led him to conclude that s. 8 of the Charter was breached even though they did not act in bad faith. The police failed to tell the judge who authorized the wiretaps that other lawyers too worked or used Cavaliere’s law office, lawyers who were not the subject of the investigation. Police installed microphones and cameras in the common areas of the law office where several “innocent” lawyers worked and met with non-target clients. They intercepted also communications without first determining that the participants were targets, in violation of the authorizations. On top of that, they treated the receptionist of the law firm as if she was a target, and failed to treat her communications as potentially privileged. They even sporadically listened to potentially privileged communications.

Police “failed to understand that eavesdropping on conversations between a lawyer and his client is the most serious breach of the solicitor-client privilege, far more than the physical intrusion of a law office or watching a video without sound,” said Justice Downs. “The protection of privilege was a secondary preoccupation when it should have been the first.”

According to Daniele Roy, a criminal defense lawyer who successfully represented Sollecito, the ruling is “very important” because it once again reaffirms that solicitor-client privilege is “sacred.” The decision is also notable because Justice Downs rebukes police for conducting a wiretap operation in law offices “without taking necessary measures that would protect the solicitor-client privilege of honest lawyers. In short, police prioritized their investigation over professional secrecy,” added Roy, president of the Montreal criminal defense lawyers association.

While Justice Downs turned down the request to stay the proceedings, he did find that it did meet the three-prong test set out in R. v. Grant, [2009] 2 SCR 353 to exclude the wiretap evidence – that is, the seriousness of the Charter‑infringing state conduct, the impact of the breach on the Charter‑protected interests of the accused, and society’s interest in the adjudication of the case on its merits.

Quebec City criminal lawyer Grégoire believes that the breaches did indeed pass the first two parts of the Grant test because just as the SCC reaffirmed in R. v. Paterson, [2017] 1 SCR 202 that a person’s home remains his or her castle, “the same applies to solicitor-client privilege.” But Grégoire is not convinced that the alleged Mafiosi “should have benefitted” from the third part of the test.

Justice Downs also takes the time to reiterate time and again that the ruling should not be “perceived as an enticement for criminals to consider a law office as a protected and suitable place to conspire and plan crimes,” said Hébert. “He specifies that the protection of a law office – through professional secrecy – is not absolute. A law office should not be transformed into a vault that protects lawyers and third parties involved in criminal acts.”