Recall Uzzah's original post on Kilbreath v. Sasketchewan (Att. Gen)
http://www.jehovahs-witness.com/11/86969/1.ashx
Uzzah states
Essentially, a JW is accused of child abuse. The RCMP requests access to the local congregation files regarding complaints against the accused. Congregation refuses and sneds files to Bethel Legal. Legal Dept then claims Solicitor/Client privilege on the documents.
I believe the police (RCMP) won that case but had to wait for a deicsion on clerical privilege.
I did not realize but another decision was reported by the Court on April 5, 2005
Sadly the police lost and the search warrants were tossed since the police went apparently on a fishing expedition. They should ought to have had evidence about what was likely to be in the elders' papers but they never put it in their warrants. The Court never got to answer the privilege issue even though they did make note that a JP or Judge has to balance competing interests.
Anyway you can get to the case by going to the following URL here:
http://www.lawsociety.sk.ca/newlook/Library/fulltextnew.htm
In the Access Number line, Type in the Code: QB05122
Then use your mouse and click on "Submit Query". A new web page will show up.
Then click on the url that states "KILBREATH V. SASKATCHEWAN (ATTORNEY GENERAL)".
Below is the cases text. Hope it comes out okay in the post.
hawk
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KILBREATH V. SASKATCHEWAN (ATTORNEY GENERAL)
QB05122
Date of Judgment: April 5, 2005
Number of Pages: 11
The judge feels that this judgment does not warrant publication.
2005 SKQB 165
Q.B.G. A.D. 2004
No. 526 J.C.B.
IN THE COURT OF QUEEN'S BENCH
JUDICIAL CENTRE OF BATTLEFORD
BETWEEN:
PERRY
KILBREATH
, GORDON EMILSON, HAROLD McLAREN and LORNE VICKERS
APPLICANTS
- and -
THE ATTORNEY GENERAL OF SASKATCHEWAN
RESPONDENT
David M. Gnam for the applicants
K. Scott Bartlett for the respondent
Micheal P. Hudec for the brother-in-law
JUDGMENT
APRIL 5, 2005 KRUEGER J.
[1] On November 25, 2004, an application was made by Perry
Kilbreath
, Gordon Emilson, Harold McLaren and Lorne Vickers for an interim order sealing the documents seized (confidential record) pursuant to two search warrants, permitting examination of the officers who obtained the warrants and an order quashing the warrants or alternatively declaring the confidential record to be legally privileged.
[2] By a fiat dated December 8, 2004, Wilkinson J., of this Court, granted leave to the applicants to examine the officers who obtained the warrants, granted leave to the respondent to cross-examine Perry
Kilbreath
on his affidavit, and ordered a hearing to determine whether the warrants ought to be quashed as invalid or as breaching the applicants' Charter rights of religious privilege. Much of the hearing before Madam Justice Wilkinson appears to have been dedicated to a discussion relating to solicitor/client privilege. That was no longer an issue at this hearing. No solicitor/client privilege exists or was claimed.
BACKGROUND FACTS
[3] Two search warrants were issued by a judge of the Provincial Court:
1. A search warrant issued on April 27, 2004, to conduct a search at Kingdom Hall, North Battleford, Saskatchewan, for a confidential record relating to sexual assaults on two females of the Jehovah's Witness faith by a male member of the Jehovah's Witness faith. The confidential record was thought to have been created during meetings between the accusing members, the accused member and elders of the faith.
2. A search warrant issued on October 1, 2004, to search for and seize the same confidential record then in the hands of solicitors in Toronto representing the applicant elders. That warrant was endorsed pursuant to s. 487(2) of the Criminal Code and seizure of the confidential record was effected in Ontario.
[4] The search warrant that issued on April 24, 2004, was supported by the affidavit of Constable Wendell Theodore Houk, a member of the Royal Canadian Mounted Police, General Investigation Section of the Battlefords detachment. His affidavit is based on information obtained from the detachment records. On December 15, 2003, the two female Jehovah's Witness faith members (who are sisters) attended at the Battlefords detachment and complained that they had been separately sexually assaulted and harassed by their older sister's husband (brother-in-law) between the years 1981 and 1991. Without reference to specific times, both recalled occasions involving being touched or groped on the breast and in the vaginal area and having their brother-in-law rub his erect penis against them while hugging or otherwise contacting them.
[5] The search warrant issued on October 1, 2004, was obtained on the basis of the affidavit of Constable Amber Lea Clark. She is also a member of the Royal Canadian Mounted Police, General Investigation Section at the Battlefords detachment. For the most part, her affidavit relies on the same information contained in the affidavit of Constable Houk. It updates some events. In particular, the affidavit of Constable Clark refers to telephone conversations that took place between Constable Houk and the applicant elder Perry
Kilbreath
advising him of the intent of the police to obtain a warrant and to seize the confidential record relating to the allegations made by the two sisters. During that telephone conversation Constable Houk attempted to arrange for a time and place during which the confidential record could be seized. The affidavit also refers to the mailing by the applicant, Emilson, of the confidential record to lawyers in Toronto. A telephone conversation is referred to between Constable Houk and the lawyer in Toronto relating to the possible sealing of the confidential record.
[6] Shortly after September, 1991, the two sisters approached Jehovah's Witness elders in Lloydminster with their complaints. The meeting took place at the home of one of the sisters. Present at that meeting were the applicants Gordon Emilson and Harold McLaren, who are both elders of the Jehovah's Witness faith, Lloydminster congregation, the complainant sisters and their respective spouses. The accused brother-in-law was then resident in North Battleford and a member of the North Battleford Jehovah Witnesses' congregation.
[7] Within a week of that meeting the two Lloydminster Jehovah's Witness elders Gordon Emilson and Harold McLaren met in North Battleford with elders Perry
Kilbreath
and Lorne Vickers and the accused brother-in-law, who was requested to be in attendance. During that meeting the accused brother-in-law acknowledged the complaints made against him by the two sisters and admitted to the acts complained of. He repented his wrongdoing. Because of his repentance it was resolved that the offending brother-in-law would not have his membership revoked.
[8] The second meeting was described as the judicial action meeting. At that meeting the accused sinner, in this case the brother-in-law, was confronted in the absence of his accusers with their allegations. If denied, a face-to-face meeting could have resulted between the accusers and the accused. In this case acknowledgement and repentance made such a meeting unnecessary. At the conclusion of the second meeting all notes prepared by the four elders were destroyed. A record of the proceedings was prepared by elder Gordon Emilson and initialled or signed by the other elders.
[9] The confidential record is an overview of the date, persons involved, accusations made (without details) and action taken. Some confidential records will also contain reference to counselling and scripture readings. In this case after the confidential record was signed by the elders, it was placed in an envelope, sealed and the names of the four elders were written on the outside of the envelope. That envelope was then locked in a safe in the Kingdom Hall at North Battleford. Only one of the four elders whose names appear on the outside of the envelope is entitled to open it. That envelope remained in the safe unaltered until removed by elder Gordon Emilson and sent to the lawyer in Toronto just prior to April 27, 2004. That is the confidential record that was seized pursuant to the search warrant issued on October 1, 2004.
[10] About a week after the second meeting (judicial action meeting) a third meeting was held. At that meeting the accused brother-in-law and his spouse, the two sisters and their respective spouses, together with the four elders met for what was described as a reproof meeting. At that meeting no discussion relating to the allegations made or the response of the brother-in-law took place. The meeting consisted primarily of prayers and scripture readings. Its purpose was to provide some closure. The sisters were made aware that their complaints had been validated and the brother-in-law's repentance had prevented the revocation of his membership.
[11] The sisters were not present when the confidential record was prepared by elder Gordon Emilson of the Jehovah's Witnesses' faith. They have not seen the confidential record and due to the strict confidentiality practiced by the elders are not aware of the contents of that record.
[12] In his affidavit sworn April 27, 2004, Constable Houk attested to a belief that the confidential record will afford evidence of the offences complained of by the sisters. Likewise, in her affidavit sworn October 1, 2004, Constable Clark expressed the belief that the items being searched for (confidential record) will afford evidence of the offences alleged. The only possible source of information that could lead to such a belief is the sisters. Nowhere in the affidavits is the belief of either Constable Houk or Constable Clark attributed to the sisters or any other named source. The sisters do not possess any knowledge of the contents of the confidential record. It is possible that they assumed from the reproof meeting that the confidential record may include details of their accusations and a confession by their brother-in-law.
THE LAW
[13] The relevant portions of the Criminal Code relating to search warrants are:
487.(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place
(a) ...
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament.
(c) ...
(c.1) ...
may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant
(d) to search the building, receptacle or place for any such thing and to seize it, and
(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.
(2) ...
(3) ...
(4) An endorsement that is made on a warrant as provided for in subsection (2) is sufficient authority to the peace officers or public officers to whom it was originally directed, and to all peace officers within the jurisdiction of the justice by whom it is endorsed, to execute the warrant and to deal with the things seized in accordance with section 489.1 or as otherwise provided by law.
ANALYSIS
VALIDITY OF WARRANTS
[14] In most cases where the search warrant is attacked that attack takes place during the trial of the accused. R. v. Tanner (1989), 46 C.C.C. (3d) 513 (Alta. C.A.); R. v. Williams (1987), 38 C.C.C. (3d) 319 (Y.T. C.A.); R. v. Jamieson (1989), 48 C.C.C. (3d) 287 (N.S .C.A.). Here, however, there is no accused and, accordingly, no possible trial. The search warrants were issued in aid of an ongoing police investigation. Neither the applicants nor their church are the subject of that investigation. There may never be charges laid. It is necessary to determine the validity of the warrants at this time in order that the investigation may go forward and the applicants have some finality.
[15] As long as the Provincial Court judge acted judicially in concluding that there were reasonable grounds for issuing the warrants, the reviewing court should not substitute its view of the facts for that of the issuing judge. See: R. v. Jackson (1983), 9 C.C.C. (3d) 125 (B.C. C.A.). The issuing judge must exercise his/her judicial discretion based on reasonable and probable grounds that an offence has been committed or is suspected of having been committed and that the location of the search will provide evidence of the commission of an offence. R. v. Turcotte (1987), 39 C.C.C. (3d) 193 (Sask. C.A.). The issue in this case is whether the issuing Provincial Court judge had information that provided reasonable and probable grounds for the belief that the confidential record sought would provide evidence of the commission of an offence.
[16] Each constable expressed a belief that the sought confidential record would afford such evidence. There is no basis for that belief. Both constables were aware from information received by them from the sisters that notes were prepared by the Jehovah's Witness elders at the meetings which the sisters attended. Nothing in either affidavit contains information as to what disclosures were made by the brother-in-law or what was recorded in the confidential record by the elders.
[17] In R. v. Serendip Physiotherapy Clinic (2004), 189 C.C.C. (3d) 417 (Ont. C.A.), Rosenberg J.A. dealt with patient health records. At para. 35 he stated:
It follows that the requirements of s. 487(1)(b), in particular the requirement that the officer provide information under oath of reasonable grounds to believe that the records sought "will" afford evidence with respect to the commission of an offence, strikes the proper balance even where the target of the search is the seizure of health records. By its terms, s. 487 precludes granting of a search warrant for the purposes of a fishing expedition or on the basis of mere suspicion.
The same rationale, in my view, applies to religious counselling or spiritual records. Here the police had nothing more than a suspicion or speculation that the confidential record prepared by elder Gordon Emilson contained evidence with respect to the commission of an offence. Theirs was a fishing expedition.
[18] The same conclusion was reached by the Saskatchewan Court of Appeal. In R. v. Pippin, [1994] S.J. No. 34 (Sask. C.A.), where Vancise J.A. stated at para. 12:
The evidence before the justice of the peace is at best speculative. There is nothing in the third hand information which is sufficient to enable the justice of the peace, to test the reliability of the information, act judicially and issue the warrant.
[19] Without considering whether the confidential record seized pursuant to the warrants contains confidential church information of a spiritual nature or whether there is a need of a balancing of the societal requirement to punish wrongdoers against the privilege of counselling procedures, the information in support of the warrants is wanting, to say the least. Cory J. in Canadian Broadcasting Corporation v. Lessard, [1991] 3 S.C.R. 421, at para. 14 stated:
Certainly in every case the requirements of s. 487 of the Code must be met. However, this is not the end of the matter. Even after the statutory conditions have been met it may still be a difficult and complex process to determine whether a search warrant should be issued.
Here there simply was insufficient information under oath of a credibly-based belief that the confidential record sought would provide evidence of an offence. The affidavits in support of the warrants do not justify their issuance. Accordingly, the warrants are invalid.
RELIGIOUS PRIVILEGE OR CONFIDENTIALITY
[20] Having found the search warrants to be invalid, the confidential records were unlawfully seized. They must be returned to the applicants either because the respondent has not indicated that anyone is likely to be charged or because it has not been shown that the confidential record contains evidence of an offence. Under the circumstances, it is not necessary to consider and balance the competing rights that seek protection of the public and breaches of the fundamental rights of those subject to the search. Nor is it necessary to examine the applicants' claim pursuant to the Charter of a valid religious privilege.
[21] In passing, I would, however, comment that there is no merit in the argument that the affidavits failed to provide sufficient information to permit the Provincial Court judge to exercise a discretion by balancing the competing interests. There was sufficient information to identify the Jehovah's Witnesses as a religious congregation and the Kingdom Hall as a sacred place of worship. The confidential record sought was clearly the product of religious meetings. Even without using words such as "counselling", "spiritual", or "worship" the Provincial Court judge would have had no difficulty in recognizing the need to balance the competing interests in deciding whether to issue search warrants.
[22] Counsel for the applicants also argued that there were alternative methods of obtaining the information gathered by the elders during their counselling meetings with the sisters and their brother-in-law. He referred, in particular, to the offer of counsel for the applicants to take the confidential record to the police in Ontario, have it sealed and made available for a voir dire to determine religious privilege. That was not a practical solution in the circumstances. There were and are no charges pending and no forum for a voir dire.
[23] The two search warrants are quashed, the seized confidential record must be returned to the applicants in North Battleford. At the request of counsel on behalf of the brother-in-law, the hearing was held in camera. In keeping with that procedure, the public shall not have access to the court file or any documents which would tend to identify the sisters or their brother-in-law.