J. Patton

The Ontario Provincial Police executed search warrants at the applicants' premises as part of a fraud investigation and seized surreptitiously recorded telephone conversations with potential witnesses.

The applicants claimed these recordings were protected by litigation privilege.

The court held that litigation privilege protects a lawyer's work product and strategy, not the underlying facts or witness statements themselves.

The court ordered the recordings to be released to the police.

The applicants sought a determination of privilege claims over documents seized by the Ontario Provincial Police during a fraud investigation.

The court ruled that draft letters and internal emails prepared for counsel's review were privileged.

Regarding copies of non-privileged documents gathered for a lawyer's brief, the court analyzed conflicting appellate authorities and concluded that such copies are only protected by litigation privilege if their gathering reflects specialized skill and knowledge, and provided the original documents are otherwise produced.

Media organizations applied for access to previously sealed informations to obtain (ITOs) relating to a production order and search warrant issued during a criminal investigation.

The accused sought continuation of a publication ban, arguing that publication of intercepted communications referenced in the ITOs would compromise his right to a fair trial on an extortion charge.

Applying the Dagenais/Mentuck test, the court held that the accused failed to demonstrate a real and serious risk to trial fairness, given existing publicity, the passage of time before trial, jury instructions, and the challenge for cause process.

A third party mentioned in the ITOs argued that publication would damage his reputation, but the court held that third parties generally lack standing to seek publication bans absent exceptional circumstances.

The court concluded that the open court principle prevailed and lifted the remaining publication bans.