Criminal Law Notebook

Litigation Privilege

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General Principles

The purpose of litigation privilege is to create a "zone of privacy" around documents that were made in "relation to pending or apprehended litigation".[1]

This privilege applies to "communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature".[2]

Litigation privilege protects documents that were should be created in the following circumstances:[3]

  1. where the dominant purpose of the document is for existing, contemplated or anticipated litigation; and
    1. was created in answer to inquiries made by an agent for the party's solicitor; or
    2. was created at the request or suggestion of the party's solicitor; or
    3. was created for the purpose of giving them to counsel in order to obtain advice; or
    4. was created to enable counsel to prosecute or defence an action or prepare a brief.

Once a party decides to call expert evidence, the party shall be deemed to have waived the privilege in relation to the advice given to the party and the materials forming the foundation of that opinion.[4]

Notes made to refresh memory and to facilitate consultation with counsel prior to retaining counsel are captured by litigation privilege.[5]

Work Product Privilege

Work product privilege (often called "litigation privilege" or "lawyer's brief privilege"[6]) protects all work product that is "rooted in analysis, not investigation" which comprises the "fruits of the mind not the feet".[7]

It arises when a lawyer prepares "opinions, theories, analyses of the case, research, internal notes, memoranda or correspondence in the course of employment".[8]

Seized Property

Property seized and detained under a search warrant cannot be rendered inadmissible only on account of litigation privilege.[9]

  1. ↑ Blank v Canada (Minister of Justice), 2006 SCC 39 (CanLII), [2006] 2 SCR 319, per Fish J, at para 34
  2. ↑ Blank v Canada (Minister of Justice), ibid., at p. 330 (SCR)
  3. ↑ Kennedy v McKenzie, [2005] O.J. No 2060 (S.C.), 2005 CanLII 18295 (ON SC), per T Ducharme J at 20
  4. ↑ see R v Stone, 1999 CanLII 688 (SCC), , [1999] 2 SCR 290 (CanLII), per Bastarache J, at para 99
  5. ↑ R v Abeyewardene, 2008 CanLII 78103 (ON SC), [2008] OJ No 5749 (S.C.J.), per Trafford J
  6. ↑ see R v Card, 2002 ABQB 537 (CanLII), per Perras J, at para 12
    Prescott, "Litigation Privilege: Scope, Rationale and Critique" CBA Paper [1]
  7. ↑ R v Chan, 2002 ABQB 287 (CanLII), per Sulyma J, at para 95
  8. ↑ R v Brown [Disclosure], [1997] OJ No 6163 (Ont. Gen. Div.), per Trafford J(*no CanLII links)
    Card, supra, at para 14
  9. ↑ Ontario (Provincial Police) v. Assessment Direct Inc., 2018 ONCA 78 (CanLII), per curiam

Crown Work Product

The Crown work product consists of written notes and materials "involves thought processes or considerations of Crown counsel in the preparation of its case".[1]

It will include:[2]

  1. Crown counsel's notes on a file;
  2. Crown counsel's memoranda on a file;
  3. Correspondence;
  4. Crown counsel's opinion; and
  5. Trial strategy.

Crown counsel opinion will include legal opinion as well as opinion of the case strength and witness credibility.[3]

It does not include "factual information" such as new facts or material inconsistencies.[4]

Crown work product privilege is not a subset of solicitor-client privilege.[5]

Assuming the subject of the claim of privilege is relevant, the presumption is that the documents are not privileged.[6]

Work product during the investigative stage will usually not be privileged. At the prosecution stage, however, there is a greater likelihood that it will be privileged.[7]

Simply transferring note-taking duties from the police to the Crown does not automatically protect the notes under Crown Work Produce Privilege.[8]

Privilege on Interview Notes

The Crown cannot claim litigation privilege over interview notes as they are obliged to disclose the notes as relevant evidence.[9]

  1. ↑ R v Chan, 2002 ABQB 287 (CanLII), per Sulyma J, at para 95
  2. ↑ Chan, ibid., at para 96
  3. ↑ Chan, ibid., at para 96
  4. ↑ Chan, ibid., at para 97
    R v O'Connor, 1995 CanLII 51 (SCC), 103 CCC (3d) 1, per L'Heureux-Dubé J, at p. 45
  5. ↑ Chan, supra, at para 65
    R v Card, 2002 ABQB 537 (CanLII), per Perras J, at para 20
  6. ↑ R v Pickton, 2005 BCSC 1258 (CanLII), per Williams J, at para 14
  7. ↑ see R v Trang, 2002 ABQB 390 (CanLII), per Binder J, at paras 10 to 12
  8. ↑ R v Burlacoff, 2009 CanLII 18881 (ON SC), per C Horkins J, at para 17
    R v Malik, 2003 BCSC 1709 (CanLII), [2003] BCJ No. 2973 (BCSC), per Josephson J, at para 10
  9. ↑ R v Mitchell, 2018 BCCA 52 (CanLII), per Fisher JA, at para 51
    Malik and Bagri, supra, at para 9

Waiver of Litigation Privilege

However, by using notes to refresh memory prior to testifying may result in a waiver of privilege.[1]

As a general rule, a witness who refreshes their memory from any document, the opposing counsel is entitled to review it.[2]

  1. ↑ R v Sachkiw, 2014 ONCJ 287 (CanLII), per Dawson J - privilege in notes taken on the advice of the father, but the judge found the privilege was later waived.
    see also Refreshing Memory
  2. ↑ Attorney-General for Ontario et al. C.E.C. Edwards Construction et al., 60 O.R. (2d) 618 (S.C.O.), 1987 CanLII 4230 (ON SC), per Wright J
    R v Dunn, 2012 ONSC 2748 (CanLII), [2012] OJ No 1988 (S.C.J.), per Marrocco J
    R v Fast, 2009 BCSC 1671 (CanLII), [2009] BCJ No. 2421 (B.C.S.C.), per N Brown J
    R v Mugford, 1990 CanLII 6504 (NL CA), [1990] N.J. No. 210 (NLCA), per Marshall JA
    R v Monfils and four others, 1971 CanLII 470 (ON CA), [1971] OJ No 1725 (C.A.), per Kelly JA
    R v Lewis, [1968] BCJ No. 105 (BCSC)(*no CanLII links)

Common-Interest Privilege

Common-interest privilege is not a privilege that stands-alone. It arises from solicitor-client privilege or litigation privilege.[1]

The privilege attaches to information that is shared among several individuals with a common interest who are anticipating litigation.[2]

  1. ↑ R v Clarke, 2015 NSSC 26 (CanLII), per Coady J, at para 25
  2. ↑ Mitsui & Co. (Point Aconi) Ltd. v Jones Power Co. Ltd., 2000 NSCA 96 (CanLII), [2000] NSJ No. 258, per Roscoe JA, at para 51
    Clarke, supra, at para 26
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