The accused was charged with sexual assault.
During cross-examination at trial, the accused revealed having reviewed personal notes prior to testifying.
The Crown sought production of these notes, arguing that any privilege was waived when the accused used them to refresh their memory.
The court held that the notes were protected by both litigation and solicitor-client privilege, as they were created for the dominant purpose of litigation and shared with counsel for legal advice.
The court concluded that the privilege was not waived, noting that the reference to the notes arose during cross-examination rather than examination-in-chief, and the potential prejudice to the accused outweighed the probative value of production.
