Court File and Parties
Court File No.: Barrie: 130995 Date: 2014-06-10 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Andrew Sachkiw
Before: Justice N. Dawson
Heard on: January 7, March 24, May 1, June 10, 2014
Reasons for Judgment released on: June 10, 2014
Counsel:
- Fred Temple, for the Crown
- Terry Hawtin, for the accused Andrew Sachkiw
DAWSON J.:
Introduction
1Mr. Andrew Sachkiw is charged with failing or refusing to comply with an ASD demand. The trial commenced and Mr. Sachkiw was under cross-examination by the Crown when he revealed that he had made notes of what happened the day following his involvement with the officer and had looked at them prior to testifying. The Crown, after asking some further questions in relation to the notes, asked that they be produced. A voir dire was held where further evidence was heard on the nature of the notes. The defence objects to the production of the notes on the basis of litigation privilege. The defence does not assert solicitor-client privilege.
Evidence
2The evidence relating to the use of notes arose when the Crown questioned Mr. Sachkiw regarding his only remembering three attempts to provide an Approved Screening Device sample. Mr. Sachkiw said, "I only remember three attempts". The Crown then asked, "When you say that, you didn't make notes of what did or didn't happen?" Mr. Sachkiw responded, "Yes I did the next day". Mr. Sachkiw indicated that he made the notes from what he recalls. He was asked if someone told him to make them or if he made them on his own and his response was that he made them on his own. He indicated that his father told him to write down what he remembered and said that was a good idea. Mr. Sachkiw denied that he made the notes the next day because his father said it was a good idea. He indicated he made jot notes himself and that his father said to do everything he remembers word for word and he did that. He also agreed he did this because of what his father told him. He agreed he looked at the notes before he testified, that he did so on the day he was in court, the previous night and when he met with his counsel. It was at this point that the Crown asked the notes be produced as they were not made pursuant to a request by counsel or in consultation with counsel. After this, Mr. Sachkiw volunteered that he also made notes when he contacted X-copper. They gave him a bunch of things and he wrote. The defence then raised the issue of litigation privilege.
3Mr. Sachkiw was re-sworn on a voir dire where the evidence at the trial in relation to the notes applied. He advised his counsel that the notes were made the day after, meaning after his involvement with the officer. He testified they were made on the advice of X-copper, himself and his parents. Mr. Sachkiw indicated that he spoke to X-copper two days afterwards. He called them the following day and made an appointment the day after that. Mr. Sachkiw indicated that after attending X-copper he made the notes. He met with an older gentleman he agreed was Drew Davey, and that gentleman told him why he should make notes, to provide as much information as he can about the situation that was to be provided for counsel. The notes he prepared at that time were notes that were provided to counsel who was given a copy during this trial.
4Mr. Sachkiw was cross-examined by the Crown on the voir dire and denied the suggestion that when he had been asked two or three times by the Crown why he made the notes his answer had to do with his father telling him. Mr. Sachkiw indicated that this was not the case but that he said his father was one of the ones that said it was a good idea.
5The Crown's suggestion to Mr. Sachkiw that he did not mention any third party in conjunction with the making of the notes until he heard the application the Crown made to the court and that there was no talk of anyone but he and his father in regard to the notes was true. When it was suggested to Mr. Sachkiw that he did not mention anything about X-copper until the Crown applied before the court, Mr. Sachkiw asserted that he did mention X-copper. I note that the mentioning of X-copper came after the application by the Crown for the production of the notes. Mr. Sachkiw denied having heard the Crown say to the court that these notes were not made at the request of the lawyer so they are not covered by privilege. The Crown did say that they were not made pursuant to a request by counsel or in consultation with counsel but I don't believe he mentioned privilege prior to Mr. Sachkiw blurting out the comment regarding X-copper. Counsel for the defence then made the comment of an objection on the basis of litigation privilege after viewing the notes. It was following this where the further evidence on the notes was provided to the court on the voir dire.
6Mr. Sachkiw testified under cross-examination on the voir dire, that the notes seemed like a standard thing to do so he did notes, his dad said give more detail, and X-copper gave him sheets about how the day began. Mr. Sachkiw agreed that he made the notes the very next day and he did not have the appointment with X-copper for two days. He agreed he himself did the notes, his dad said "more detail", and X-copper had a spread form that was fill in the blank. That form is not the notes that the defence received to which reference was made. Mr. Sachkiw agreed that when he was first questioned how the notes came to be made he did not mention X-copper. He also agreed that X-copper had nothing to do with the decision to make the notes and it was himself and then his dad said "more detail". It was a couple of days later that he went to X-copper and they told him that he should make notes.
7Mr. Sachkiw agreed that it was after he made the notes in question that he went and met with X-copper. He had a meeting and discussed his options. He did not know what was he was going to do with the trial. He indicated he knew not to plead guilty but also agreed that he did not know what the advice would be. It could be plead guilty he did not know. Mr. Sachkiw indicated that he had both notes; the fill in the blank ones as well as the ones that he did. He agreed that he refreshed his memories on the documents his counsel received on the date of the application (counsel acknowledged as having received them previously as well). Mr. Sachkiw agreed it was because he knew time would pass before he went trial, that he would rely on the notes to refresh his memory and wanted as much detail as possible to give evidence to the court. He agreed that he would not have the same degree of detail or certainty without the notes and that is why he made them.
Position of the Parties
The Defence
8The defence took the position that the notes in this case are protected from production by litigation privilege. The defence relied on R. v. Abeyewardene, [2008] O.J. No. 5749 (S.C.J.), where notes that were made to refresh memory and facilitate consultation with a lawyer prior to retaining counsel were encapsulated by litigation privilege. The defence argued that those principles are at play in the case before this court. Mr. Sachkiw made notes on the advice of his father and was making an appointment within a day or 48 hours to see counsel, and those notes were provided to counsel prior to today.
9The defence made reference to the purpose of litigation privilege to ensure efficacy of the litigation as set out in Abeyewardene, supra, and the protection of the process as set out in Blank v. Canada (Minister of Justice), 2006 SCC 39. The defence submitted the claim of litigation privilege has been made out in this case and the document should not be provided to the Crown for the purpose of cross-examination.
10The defence did not assert solicitor-client privilege. The defence argued that this was a situation of litigation privilege which is to protect the process of litigation. The defence submitted that it is desirable for someone to make notes for their own benefit and in this case in contemplation of litigation to subsequently assist in preparation for a trial.
11The defence submitted this scenario is a different scenario than that of expert reports. The Supreme Court of Canada in Blank v. Canada (Minister of Justice), supra, addressed solicitor-client and litigation privilege. Litigation privilege creates a zone of privacy in relation to pending or apprehended litigation which is to create a safe area in which to work especially in terms of the accused versus the state. The defence referenced R. v. Abeyewardene, supra, where the notes were deemed to be privileged and not admissible. It was noted that Marrocco J. in R. v. Dunn, 2012 ONSC 2748 (CanLII), applies the Blank decision and references Kennedy v. McKenzie, [2005] O.J. No. 2060 (S.C.), for the test for litigation privilege. The party must establish the note was made for the dominant purpose of the anticipated litigation. In Dunn the privilege was not established.
12The court queried the question of waiver and whether litigation privilege ends once the person testifies and refreshes their memory. The defence took the position that for policy reasons the privilege should not end when the accused person testifies. The defence argued that should an accused choose to refresh his memory it is not a waiver. The purpose of making the notes was in contemplation of litigation and to get legal advice. The defence argued that if the defence was to interview the person, take notes and review it with the client, it may be solicitor-client privilege. The defence argued that in this day and age people are encouraged to record what happened. That we like to encourage the orderly administration of justice and for people to make notes of what happened and to be prepared. Putting an end to the privilege when an accused testifies would have a deleterious effect on the public policy principles. The defence argued that litigation privilege is a rule of evidence and the key things are the zone of privacy and the dominant purpose in creating the document. Where the dominant purpose was to obtain legal advice to prepare for trial then it is found that litigation privilege applied, and, in the defence submission, did not end. The defence argued that the duty of full disclosure is not a reciprocal matter as noted by Harper J. in R. v. Nesbitt, (June 28, 2012, O.C.J.) referencing R. v. Peruta; R. v. Brouillette, 1992 CanLII 3599 (QC CA). The defence agreed that it is immaterial if the witness takes the note to the stand or refreshes their memory on it previously.
13Counsel was invited to make further submissions in relation to the decision of R. v. Fast, 2009 BCSC 1671 (CanLII). The defence submitted that while the decision is not binding it does provide some assistance as to procedure. There is a preliminary issue of the degree to which the original document was used to refresh the memory and when it was used. I note this is the question of whether the witness refreshed his memory. The defence noted that the first issue is whether the document is privileged. If litigation privilege as asserted by the defence is established then the Crown has to establish a waiver. The defence referenced the caution in Fast of applying civil law cases on privilege principles to the criminal law. The defence disagrees with the procedure suggested in Fast that there be a redaction of the document by the justice prior to deciding whether to order production or not. The defence expressed a concern of the appearance of the judge having a written document from the accused that the Crown has not been able to see and submitted the appearance of justice would be disserved especially where the court has to evaluate the reliability and credibility of the accused person. The defence takes issue with the Crown's position that the court should look at the de facto use of the document as being determinative submitting that this is contrary to Blank and hundreds of years of case law. The defence position is the document is privileged and there has not been a waiver.
The Crown
14The Crown argued there is a distinction between the Crown seeking to adduce notes as part of its case as opposed to the Crown's seeking to view what has been used immediately before court to assist a witness in giving evidence. The Crown argued that the opposing party is entitled see what has been used and how it compares to the evidence. The Crown agreed that litigation privilege includes not just lawyer-client communications but third-party communications as well as preparation for litigation. The Crown noted there is no production absent a witness testifying and relying on the notes to refresh his memory. The Crown argued that the concern expressed by Trafford J. in Abeyewardene was based on the right against self-incrimination as the Crown was seeking to introduce the notes as part of the Crown's case to inculpate an accused rather than to simply impeach him. The notes were not admissible at the initiative of the Crown. The Crown submitted that Abeyewardene, supra was a different situation than the situation before this court as the Crown is not seeking to tender the notes as part of its case.
15The Crown argued that the notes were made prior to the consultation with X-copper by Mr. Sachkiw on his own or with the encouragement of his father. Mr. Sachkiw had the option to testify or not. The Crown submitted that this is not about what the Crown does or does not receive but rather what the court is entitled to in the situation where the witness refreshes his memory. The Crown argued that the Court is entitled to have the documentation as part of the testing of the evidence.
16The Crown submitted that the cases provided by the defence deal with a different issue from that before this court and are distinguishable. The defence cases do not deal with the situation of a witness who has testified and indicated they have refreshed their memory by virtue of his or her statement made a short time prior.
17The Crown provided an excerpt from McWilliams on Evidence where it indicates there is some gray area but what is clear is if a witness refers to a statement in court clearly the other side gets to see it. It is incongruent to say it is not disclosable because it was looked at the day before or before court. The Crown argued that it is apples and oranges to speak of tendering the statement as evidence of guilt as opposed to seeing something the witness has seen to assist him in testifying. The Crown argued that there is a good analogy in the decision of R. v. Stone, 1999 CanLII 688 (SCC), where some of a defence psychiatric reports contents were mentioned in the defence opening and the report had to be provided to the Crown as it had been referred to before the jury. Privilege was waived in the opening of the defence case by the defence disclosing the portions he wished to disclose and hence the balance of the report's contents that might contradict or put in context what had been disclosed could not be concealed.
18It is the Crown's position that the notes are not disclosable unless the witness takes the stand and tells the court he has reviewed the material. The Crown argued that everything changes in terms of litigation privilege when the witness is put in the stand. If no notes are reviewed or refreshed it is the end of the inquiry. Once the witness looks at anything it almost forms part of their evidence. This is why it is so critical the other side see it. Opposing counsel has to understand what assisted them in jibing their memory or restoring it in order to see if it contradicts the evidence. Looking at the statement inferentially bolsters the witness' reliability and unless the notes are produced the court and opposing counsel do not see what lies behind it. The Crown took the position that is a rule of thumb that where a witness uses a memo to refresh their memory the opposing counsel has the right to look at it when cross-examining. The Crown relied on the Nesbitt decision, McWilliams on Evidence, and R. v. Mugford, [1990] N.J. No. 210 (NFLD. S.C. – C.A.), for this proposition.
19The Crown submitted that the general rule as stated in R. v. Monfils and four others, [1971] O.J. No. 725 (C.A.), that "There is no general protection to the notes of a police officer and that they are subject to the same rules as to cross-examination as applied the evidence of any other witness.." is applicable to the accused as well if they refresh their memory from the notes. If this was not the case there would be an otherwise incorrect picture and the Crown would be deprived of the right to cross-examine on relevant material as part of the trial.
20The Crown argued that the decision in R. v. Nesbitt, supra, is not correctly decided in the result, however, acknowledges that the general rule is opposing party are entitled to see the document relied on by a witness. This is because although not filed it becomes part of the evidence of that witness. The Crown relied on R. v. K.G.B., 1998 CanLII 7125 (ON CA), for the proposition that anything can be used to refresh memory and it is legitimate to cross-examine on the effect of the document on the witnesses ability to recall things.
21The Crown submitted that R. v. Nesbitt, supra, used an improper interpretation of R. v. Stinchcombe, [1991] 3 S.C.R. 362, in its analysis which the Crown submitted has no bearing on this issue. In the Stone decision as the defence had not called the expert or had not referred to the report in their opening there was no duty to disclose the report. The point is was once it was put before the court for the trier of fact and was referred to and is being used to assist in the giving of evidence, the opposing party has to be able to see it.
22The Crown also made further submissions in connection with R. v. Fast, supra. While the Crown agreed that there were useful principles and sentiments expressed in the case the Crown took issue with the procedure suggested. The Crown was in agreement with the defence that there should not be a redaction by the judge and that it is an all or nothing proposition.
23The Crown also took issue with the comments in Fast that the court should determine the degree of refresh and then use that when exercising the discretion of whether it was of the degree that it should be produced. The Crown took the position that this is too high a threshold and it is nebulous and difficult to find. The Crown submitted there is a danger regarding partial waiver if the other party only gets part of the material as only the helpful parts to a party's case would be released. The Crown submitted there is no evidence the other party could call to refute a minimal degree of reliance. The Crown submitted that the threshold is if it has been established a witness has relied in any degree on any memo or documents. The Crown submitted that once any degree of reliance has been established it is up to the trier of fact to find how it affected the witness' evidence. The Crown argued the only way to explore that is to produce the document. The degree of the reliance is a matter for the trial not for a voir dire. The Crown submitted the threshold should be if there is evidence that the document in any degree or fashion has assisted or could have possible affected how the evidence was given then production should be ordered. The Crown argued this is the only way the court and the other side know the true nature and degree of modification and to find out what effect, if any, it had on the witness' evidence.
24The Crown submitted that the documents in this case are not privileged. The degree of refreshing of memory is a matter of weight and the document is the only way to properly explore the degree to which it refreshed the witness' memory. If the document has been used to assist a party to remember then the court has to understand the effect on the witness. The Crown submitted that while the general rule is there should be caution in importing civil law procedures that is not a concern here as there is a right to silence, the Crown bears the burden of proof and there is no burden on the accused. The accused can create any number of documents he wants and it only changes if he testifies and if he has used materials to assist in testifying. What is created and remains untested is the impression of enhanced credibility. The Crown emphasized that the case before this court is not dealing with a communication but rather a document and stressed the portions in Fast relating to why the notes should be produced.
25When reviewing apparently contradictory statements in Fast that a document is privileged if created for preparing for trial yet an aide memoire is not, the Crown suggested that a de facto test be used of considering how the document was in fact use. I pause to note that I do not intend to adopt this as the test as it flies in the face of the dominant purpose test.
Analysis
Nature of Privilege
26The nature of solicitor-client privilege and litigation privilege was examined by the Supreme Court of Canada in Blank v. Canada (Minister of Justice), 2006 SCC 39. In that case Mr. Blank, who was suing the federal government, sought access to all records pertaining to the prosecution of himself and his company. The Minister claimed litigation privilege under section 23 of the Access to Information Act in relation to many of the documents. Fish J. speaking for the majority decision noted in relation to solicitor-client privilege and litigation privilege at paragraph 1 that, "They often co-exist and one is sometimes mistakenly called by the other's name but they are not coterminous in space time or meaning." Fish J. stated at paragraph 7, "Bearing in mind their different scope, purpose and rationale, it would be preferable, in my view, to recognize that we are dealing here with distinct conceptual animals and not with two branches of the same tree."
27Fish J. discussed the two privileges indicating the following in paragraphs 26 through 28:
Much has been said in these cases, and others, regarding the origin and rationale of the solicitor-client privilege. The solicitor-client privilege has been firmly entrenched for centuries. It recognizes that the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. Society has entrusted to lawyers the task of advancing their clients' cases with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice.
Litigation privilege, on the other hand, is not directed at, still less, restricted to, communications between solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.
R. J. Sharpe (now Sharpe J.A.) has explained particularly well the differences between litigation privilege and solicitor-client privilege:
It is crucially important to distinguish litigation privilege from solicitor-client privilege. There are, I suggest, at least three important differences between the two. First, solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature. Secondly, solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself. Thirdly, and most important, the rationale for solicitor-client privilege is very different from that which underlies litigation privilege. This difference merits close attention. The interest which underlies the protection accorded communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice.
Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client).
("Claiming Privilege in the Discovery Process", in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65)
28Fish J. in Blank v. Canada (Minister of Justice), further commented on the privilege at paragraph 31 through 34:
Though conceptually distinct, litigation privilege and legal advice privilege serve a common cause: The secure and effective administration of justice according to law. And they are complementary and not competing in their operation. But treating litigation privilege and legal advice privilege as two branches of the same tree tends to obscure the true nature of both.
Unlike the solicitor-client privilege, the litigation privilege arises and operates even in the absence of a solicitor-client relationship, and it applies indiscriminately to all litigants, whether or not they are represented by counsel: see Alberta (Treasury Branches) v. Ghermezian (1999), 242 A.R. 326, 1999 ABQB 407. A self-represented litigant is no less in need of, and therefore entitled to, a "zone" or "chamber" of privacy. Another important distinction leads to the same conclusion. Confidentiality, the sine qua non of the solicitor-client privilege, is not an essential component of the litigation privilege. In preparing for trial, lawyers as a matter of course obtain information from third parties who have no need nor any expectation of confidentiality; yet the litigation privilege attaches nonetheless.
In short, the litigation privilege and the solicitor-client privilege are driven by different policy considerations and generate different legal consequences.
The purpose of the litigation privilege, I repeat, is to create a "zone of privacy" in relation to pending or apprehended litigation. Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose -- and therefore its justification. But to borrow a phrase, the litigation is not over until it is over: It cannot be said to have "terminated", in any meaningful sense of that term, where litigants or related parties remain locked in what is essentially the same legal combat.
29The test to be applied in determining whether a document is subject to litigation privilege is the dominant purpose test: Blank v. Canada (Minister of Justice), supra. Fish J. in stating the test again distinguished the two privileges at paragraph 60:
I see no reason to depart from the dominant purpose test. Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard appears to me consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege….
Application to the Facts
30The defence has made reference to, and has relied on, Trafford J.'s decision in R. v. Abeyewardene, [2008] O.J. No. 5749 (SCJ). This case is factually very different from the case before me. In Abeyewardene the Crown was already in possession of notes and three letters to family members and friends of the defendant that were seized under a search warrant. The Crown made an application for an order to admit into evidence, among other matters, some notes prepared by the defendant. These notes had been made at the suggestion of his girlfriend "in order to refresh his memory as time passed and to facilitate his consultations with a lawyer". The defendant used his notes subsequently when he spoke to his lawyer. Solicitor-client privilege was not at play in the circumstances of that case. Trafford J. relying on Blank v. Canada (Minister of Justice), supra, held that the notes were covered by litigation privilege in the circumstances of that case. Trafford J. stated the following at paragraphs 14 and 15:
This privilege applies to self-represented litigants as well as represented litigants, or I believe, persons who intend to retain, but have not yet retained, counsel. It applies so as to ensure privacy in relation to the preparation for contemplated litigation, whether it be criminal litigation or civil litigation. See R. v. Swearengen, 2003 CanLII 16208 (ON SC). Its purpose, together with the solicitor-client privilege, is to enhance "... the secure and effective administration of justice according to law ... (confidentiality) is not an essential component of the litigation privilege ...". See Blank v. Canada (Minister of Justice), supra, at 332-333. The litigation privilege, as applied to a case like this one, that is, to the notes prepared by the defendant, before he has retained counsel, to refresh his memory and to facilitate consultation with counsel, is compatible with the concept of, and the values embraced by, a "case to meet" recognized by s. 11(d) of the Charter and the right against self-incrimination recognized by s. 7 of the Charter. See R. v. Dubois, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350 at para. 12 and R. v. R.J.S., 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451 at paras. 3, 46, 81, 89, 94 and 97.
In this case, the defendant prepared the notes, as suggested by Ms. Salgadoe, to refresh his memory and to facilitate consultation with his lawyer. They were used to instruct his lawyer. While little was done by the defendant to maintain their confidentiality, it must be observed that, as a guest in his girlfriend's apartment, there was not much that he could have done to secure them. He did place them on his duffle bag. While he did not place them in his duffle bag, a step that would have increased the confidentiality of the notes, it is clear that they were prepared for, used and kept in order to defend himself against any charges laid against him in connection with the death of Piratheep Tharmakulasingam. For these reasons, the notes are covered by the litigation privilege in the circumstances of this case.
31The Abeyewardene decision relates to an attempt by the Crown to use a defendant's notes as a piece of evidence against him. It does not relate to the consequences of the defendant using notes to refresh his memory when he testified. The decision is of limited utility in the matter before this court, although helpful on the nature and purpose of the privilege.
32In R. v. Dunn, 2012 ONSC 2748 (CanLII), counsel present during a Nortel audit committee review interview of senior executives were subpoenaed as witnesses on the trial of those witnesses on charges of defrauding the public and defrauding Nortel Network's corporation. The interview had not been taped or transcribed however counsel who were present took notes. Litigation privilege was claimed in connection with those notes. Marrocco J. upheld the notes as being subject to litigation privilege. Marrocco J. noted at paragraph 20 the preconditions for litigation privilege:
In Kennedy v. McKenzie, [2005] O.J. No. 2060 (S.C.), Mr. Justice T. Ducharme set out the test for litigation privilege at para. 20 of his judgment. His Honour held that a party asserting the privilege must establish that the documents were created:
for the dominant purpose of existing, contemplated or anticipated litigation; and
in answer to inquiries made by an agent for the party's solicitor; or
at the request or suggestion of the party's solicitor; or
for the purpose of giving them to counsel in order to obtain advice; or
to enable counsel to prosecute or defend an action or prepare a brief.
33Marrocco J. at paragraph 48 of R. v. Dunn, supra, explained:
What is being tendered is the present recollection of the lawyers who were at the 2004 interviews. The fact that the memoranda are inadmissible does not preclude their use to attempt to refresh the barristers' present recollections of those interviews. What triggers a witness' present recollection of events is not significant. The document need not be independently admissible (see: R. v. K.G.B. (1998), 1998 CanLII 7125 (ON CA), 125 C.C.C. (3d) 61).
34The assertion of Litigation privilege was sustained in R. v. Dunn, supra. One of the considerations covered by Justice Marrocco was what would occur should the witnesses refresh their memory from their notes. Marrocco J. recognized the dichotomy between a barrister witness deliberately not refreshing his memory or on the other hand, jeopardizing a client's privilege. His Honour in recognizing the dilemma stated at paragraphs 79 – 82:
Mr. Heintzman, Mr. Sirivar and Ms. Beitel all testified without having read or having had reference to notes. This is understandable because, had they resorted to the notes, it could have been suggested that they had thereby waived any protection from disclosure, which the notes enjoyed (see R. v. Fast, 2009 BCSC 1671, [2009] B.C.J. No. 2421, at para. 45). This is especially problematic from their point of view because the privilege belongs to the clients and not to them.
At the same time, it is possible that reading those contemporaneously prepared interview notes would refresh the barrister witnesses' present recollections of interviews that occurred eight years ago.
It was suggested, during the course of argument, that I ought not to order the barrister witnesses to refresh their memory from their notes because, to do so, amounts to an attempt to qualify the effects of litigation privilege. Mr. Sandler suggested that this approach was rejected by the Ontario Court of Appeal in General Accident Insurance Company v. Chrusz, 1999 CanLII 7320 (ON CA), when the majority rejected a "harm versus benefit" analysis prior to the exclusion of documents protected by litigation privilege. I agree that a "harm versus benefit" analysis cannot justify ordering the barrister witnesses to read their respective sets of notes. However, such an analysis is not the only filter through which the facts presented by this application must be considered.
It was also suggested during the course of argument that, if the court compelled the barrister witnesses to read the file notes of the interviews and if it appeared that the memory of one or more of them was affected by a misinterpretation of the notes, then it would be necessary to produce the notes to correct the misimpression. In such a situation, it was suggested that the defendants would have been forced to waive their privilege. I reject this submission. Because we are dealing with the barristers' present recollections of interviews that occurred eight years ago, there will always be the risk of a false memory that might require correction.
35Marrocco J. examined the dichotomy involved, how to balance the competing considerations and resolved the matter by ordering the witnesses to read their notes to refresh their memory and finding that by ordering such there was no waiver. Marrocco J. at paragraphs 86 to 91 stated:
For a barrister to deliberately refrain from taking reasonable steps to refresh his or her memory prior to testifying and thereby deliberately deprive the court of his or her best evidence is conduct that obstructs the court's truth-finding function. It is, therefore, conduct unbecoming a member of the profession.
It is equally unacceptable to require a barrister, who is required to testify, to jeopardize a lawful privilege to which a present or former client is entitled.
Balancing these two competing considerations is the challenge.
In attempting to balance these two considerations, one has to bear in mind that this is a case of litigation privilege; it is not a case of involving solicitor-client privilege. Litigation privilege ends, absent closely-related proceedings, upon the termination of the litigation that gave rise to the privilege. Solicitor-client privilege, on the other hand, has evolved to become a rule of substantive law; it survives the death of the client (see: Blank, supra, at paras. 24 and 36).
Taking all this into account and in order to avoid both of the unacceptable alternatives to which I referred, I am ordering the barrister witnesses, who acted for Mr. Dunn, to read the interview notes in respect of which Mr. Dunn claims litigation privilege. I am ordering the barrister witnesses, who acted for Mr. Beatty, to read the interview notes in respect of which Mr. Beatty claims litigation privilege. Because this "refresh of memory" is ordered, any suggestion that their clients' litigation privilege has thereby been waived will not be possible. At the same time, such an order eliminates any suggestion that the barristers are deliberately depriving the court of their best evidence. If any barrister witness determines that reading their respective file notes will not refresh his or her present recollection of the interviews with which we are concerned, the barrister is relieved of any further obligation to comply with this order.
Finally, even if the barrister witnesses read their respective notes and thereby refresh their memories, the Crown, contrary to the usual practice, will not be allowed to read the notes. This unfairness to the Crown is outweighed by the necessity of minimally impairing the protection from disclosure which the barristers' notes currently enjoy. (Emphasis mine).
36I take Marrocco J.'s comments that "any suggestion that their clients' litigation privilege has thereby been waived will not be possible" and that "the Crown contrary to the usual practice will not be allowed to read the notes" as indicating that if not for the fact the court ordered the refreshing by the notes, the Crown would be entitled to view the notes upon the witness so doing. Thus, this case is an exception to the general rule based on compelling the witnesses to read the interview notes. I note in the case before me there is no evidence that Mr. Sachkiw was compelled to read the notes and in fact I certainly did not so order.
37The issue of note production was also addressed in R. v. Fast, 2009 BCSC 1671 (CanLII). The accused in that case was charged with an "over 80" offence and was ordered to produce a document to the Crown on the basis that he had refreshed his memory from it prior to testifying. Trial counsel appeared to have argued both litigation and solicitor-client privilege. The defence on appeal argued that the notes were protected by solicitor-client privilege. A new trial was ordered due to a failure of the trial judge to evaluate the degree to which the witness' memory was refreshed by the document, failure to clearly establish the purpose behind the creation of the document, failure to consider whether there was a justifiable claim of privilege and whether it was solicitor-client or litigation privilege and to make a discernible finding on the nature of the privilege protecting the document, failure to review or redact the document before ordering its production, and finally an inappropriate use of the refresh document in making an adverse inference against the accused on his s. 10(b) Charter motion.
38Brown J. in R. v. Fast, supra, addressed a number of issues including the circumstances surrounding the making of the refresh document. Brown J. stated at paragraph 29, "It is unclear whether the appellant created the notes as a record for his own use (for example, as an aide memoire), in anticipation of litigation or in preparation for litigation, or for the purpose of obtaining legal advice." Brown J. at paragraph 31 indicated that if the purpose was as an aide memoire simply to refresh memory at trial the document is not privileged stating:
Alternatively, if the appellant created the document to serve as an aide memoire, that is, to be used by him to refresh his memory at trial, the document would not privileged: Attorney-General for Ontario v. C.E.C. Edwards Construction et al. (1987), 1987 CanLII 4230 (ON SC), 60 O.R. (2d) 618. The reasoning here is that a witness who creates a document purely for future refresh purposes cannot be said to have an expectation that the notes would be kept confidential, a hallmark of privilege, since the witness created them in the first place "for the express purpose of making use of them at trial" (C.E.C. Edwards at 622).
39Brown J. referred to both the timing of the refreshment and the degree to which their memory has been refreshed stating at paragraphs 21 to 24:
Levey P.M. distinguishes Kerenko because in that case there was no evidence before the court as to when the witnesses had refreshed their memories; whereas, on the facts before Levey P.M. in Musterer, the evidence showed the officer had refreshed his memory two and a half hours before testifying.
I respectfully disagree with Levey P.M.'s comment, if meant to suggest that the exercise of the judge's discretion is based only on when the witness says he refreshed his memory. When evidence shows that a witness has relied on notes or some other document to refresh their memory before testifying at trial, they have placed in issue the degree to which their testimony relies upon the refresh document that is not in evidence. Therefore, the credibility and reliability of their evidence is in question. A witness who has refreshed their memory may display a command of critical events that gives a misleading impression of what they actually recall, and consequently unjustifiably enhance their credibility and reliability as a witness in the eyes of the court.
In so far as timing of the refresh is concerned, one witness might not refresh until a month before trial, but take a lot of time and trouble doing it, while another witness might simply glance at the same document for a few seconds before testifying. As a result, the time and trouble taken to refresh is more significant than when the refresh occurred. The underlying objective is that the court receives the best possible facsimile of the witnesses memory, not that of the refresh document.
In my view, when a witness refreshes, evidence about the degree to which their reading of the document has refreshed (or influenced) their memory is the governing question for the exercise of the judge's discretion on the question of whether the witness has refreshed their memory. Evidence about when the witness reviewed the document is an important consideration in deciding that question, but it is not conclusive, and the timing of the refresh is only one factor, albeit an important one, to consider. Restricting the question to the timing of the refresh unduly fetters the evaluative exercise of the judge's discretion. As such, and in light of Lewis, it appears that Kerenko is not good law in British Columbia, at least insofar as it holds that a witness must require their refresh notes when testifying before the judge can order the witness to produce them….
40Brown J. also addressed the aspect of waiver. Brown J. noted the difference between litigation privilege and solicitor-client privilege as set out by the Supreme Court of Canada in Blank v. Canada (Minister of Justice). Brown J. stated at paragraph 34:
The court's emphasis on these differences is important in this (or any) case because the court's finding on the nature of the privilege determines the level of protection the document receives. Litigation privilege typically receives less protection because it relates to the litigation process rather than the solicitor-client relationship itself: R. v. Basi, 2008 BCSC 1858. It must therefore follow that the standard for finding that an accused has waived privilege over a document protected by litigation privilege should be proportionately less stringent than one for finding a waiver of solicitor-client privilege….
41Brown J. considered the nature of waiver and referenced case support for the proposition that "a mere glance at notes has been held to be insufficient to constitute a waiver of privilege." (@ para. 44). Brown J. considered the circumstances of more than a glancing refresh as well as the nature of waiver in the criminal law context recognizing at paragraph 38, ".. Judges should consider civil law cases on privilege with caution when applying the principles to a criminal case." Brown J. stated at paragraphs 45 – 46:
Civil law cases divide over the question whether a refresh beyond a mere glance before during examination for discovery constitutes a waiver. However, in the case of a witness who refreshes (beyond a mere glance) during or before giving testimony at trial, the civil law weighs strongly in favor of a finding that the witness has waived privilege over the refresh document: Pinder v. Sproule, 2003 ABQB 33, Knudson v. Peteghem (1987), 1987 CanLII 2859 (BC SC), Wright v. Clark (1982), 32 C.P.C. 309, Isakson v. Jacobson, 1945 CanLII 171 (SK CA), Mclean v. Merchants Bank of Canada (1916), 1916 CanLII 393 (AB CA)
These cases offer up the principle that where a witness refreshes, the claim of privilege over the refresh document is deemed waived based on the governing principle of trial fairness. As the court in Copeland v. Fry, [2002] O.J. No. 1356 (Sup. Ct.) notes at para. 8, it would be unfair to allow witnesses to bolster their credibility with the use of a document, and then protect themselves from cross-examination by claiming privilege over that document:
[8] The defendant, in using her statement to refresh her memory may have given evidence which is not a true recollection and it would be unfair to refuse this document to the opposite party the purpose it could be put to test whether the alleged recollection is accurate or not
42The court in Fast recognized that there can be an implicit waiver of privilege. Brown J. indicated that in the exercise of the court's discretion in determining if there has been a waiver of privilege a probative value versus prejudicial effect analysis should take place. Brown J. also suggested that the trial judge "should consider what portions of the document to redact in order to minimize prejudice to the accused." (@ para. 62).
43The decision in Attorney-General for Ontario et al. C.E.C. Edwards Construction et al., 1987 CanLII 4230 (ON SC), ordered production of diaries and notes made by the plaintiff. The court found that there was no solicitor-client privilege attached. The court did not appear to deal with the issue of litigation privilege. The client in that case kept the notes to refresh his memory and to inform his counsel. In the course of the judgment Wright J. noted the following:
When a witness refers to notes counsel is entitled to see the item referred to and to conduct his cross-examination in light of what it may disclose: R. v. Vaillillee, 1954 CanLII 424 (ON CA).
The same is true of notes used by the witness to refresh his recollection prior to giving evidence: R. v. Lewis, 1968 CanLII 830 (BC SC); Re R. v. Monfils and four others, 1971 CanLII 470 (ON CA).
These are criminal cases.
The client kept these notes to refresh his memory as well as to inform counsel. Upon using them for the former purpose he waived any privilege that attached to the latter.
Determination of Litigation Privilege
44The onus is on the defence on a balance of probabilities to establish that the document, the notes, is subject to litigation privilege. The defence must establish that the dominant purpose of the creation of the document by Mr. Sachkiw was "for the purpose of either preparing for trial or facilitating conversations with a lawyer in anticipation of litigation: R. v. Abeyewadene, [2008] O.J. No. 5749 (Sup.Ct.)": R. v. Fast, supra, at para. 30; R. v. Dunn, supra.
45I agree that it is important to understand the context of the factual situation in each case when considering the principles enunciated as they relate to those facts. The situation before this court is not a situation where the Crown is seeking production of notes in the possession of the defence prior to a witness either taking the stand or refreshing their memory from the notes. The factual situation in the case before me is quite different from that for Trafford J. in Abeyewardene.
46Mr. Sachkiw's evidence was that he made jot notes on his own and that his father also told him to write down what he remembered word for word which he did. He agreed that X-copper had nothing to do with his decision to make his notes that were made prior to that meeting with X-copper. He also agreed under cross-examination that he would rely on the notes to refresh his memory as he wanted as much detail as possible to give evidence to the court. These notes on the basis of the evidence given by Mr. Sachkiw were an aide memoire. I do not regard this as the end of the analysis as to whether the notes are subject to litigation privilege. I do not find the reference to aide memoire in Fast as determinative as it is based on Attorney-General for Ontario et al. C.E.C. Edwards Construction et al., which was considering solicitor-client privilege. In the context of litigation privilege it would be an artificial exercise to distinguish between a document created as an aide memoire to refresh memory should there be a trial and a document created in anticipation of or preparation for litigation. They are the same thing. Mr. Sachkiw indicated that he met with X-coppers the day after he made the notes. He had a meeting and discussed his options. He did not know what he was going to do for trial, knew not to plead guilty however was going to listen to advice provided and make a decision. He agreed that the advice might have been plead guilty he did not know. It is clear that the notes were to assist his memory of events that transpired on the day in question, it was in the context of a criminal charge and I find was in anticipation of the criminal litigation.
47I find that the defence has established that the notes were made in anticipation of litigation. Mr. Sachkiw had been arrested for the offense of refusing an approved screening device. He sought legal advice the day after he made the notes. He made the notes to assist his memory at trial. Litigation privilege applies to those who are self-represented as well as those who have counsel: Blank v. Canada (Minister of Justice), supra, R. v. Abeyewardene, supra. Although Mr. Sachkiw did not have counsel at the time he made the notes, he made the notes for the purpose of assisting himself with anticipated litigation that being the criminal charge he was facing. Litigation privilege applies to those notes subject to the Crown establishing the existence of an exception to the privilege or waiver.
Waiver of Litigation Privilege
48The issue in this case is whether, through the use of the notes to refresh his memory Mr. Sachkiw has waived litigation privilege. The evidence supports a finding that he did use his notes to refresh his memory. Mr. Sachkiw has so stated. Mr. Sachkiw agreed that he refreshed his memories from the notes on the day he testified. He agreed that he intended to rely on the notes to refresh his memory and wanted as much detail as possible to give evidence to the court. He agreed that he would not have the same degree of detail or certainty without the notes and that is why he made them. I find that he refreshed his memory from his notes.
49Brown J. at paragraph 24 previously referenced had stated, "In my view, when a witness refreshes, evidence about the degree to which their reading of the document has refreshed (or influenced) their memory is the governing question for the exercise of the judge's discretion on the question of whether the witness has refreshed their memory." In the case before me I find that the witness has refreshed his memory. He agreed that he would not have the same degree of detail or certainty without the notes and that is why he made them. I agree with the Crown that once it has been established that the memory has been refreshed then the nature of what has been refreshed and any further aspect of the degree to which it has been refreshed then becomes a matter for the trial proper. That is not to say the degree of the refresh does not play a role in the determination of the question of whether the witnesses has refreshed his memory. If the witness was to say that he or she reviewed the document and it did not assist in refreshing memory then the degree to which it had refreshed their memory would zero.
50I find that the notes that Mr. Sachkiw refreshed his memory from were of the event as he said they were word for word what he remembered at the time based on his evidence that his father said to do everything he remembers word for word and he did that.
Rationale for Production
51There are good reasons for the general principle that a witness who has refreshed his memory from his or her notes should have those notes provided to opposing counsel. The notes can be used to test the reliability of the witness' evidence and the witness' credibility.
52In R. v. K.G.B., 1998 CanLII 7125 (ON CA), the court dealt with a ground of appeal relating to the trial judge considering evidence of witnesses who had refreshed their memories well before trial from statements given to the police years after the events in question. Osborne J. speaking for the court stated at paragraph 19:
There is a danger in allowing the phrase "refreshing memory" to apply to those cases where the witness has no present memory, but is able to state that she accurately recorded a past event. In such cases, the witness has no present memory. The evidence, to the extent there is any, is the past record. When a witness refreshes her memory from some external source or event, she has a present memory, albeit one that has been refreshed; how reliable and truthful her recollection is, will be determined by the trier of fact, as happened here.
53The rationale for why the opposing party should be entitled to production of the refreshing document has been set out in R. v. Fast, supra, and R. v. K.G.B, supra, to which I have previously alluded. It can also be used to contradict or put in context what has been placed before the court: R. v. Stone, 1999 CanLII 688 (SCC). Presumably one of the routes to testing the reliability of the witnesses memory in R. v. K.G.B, supra, would have been through reference to those prior statements.
54The defence has argued that the litigation privilege should remain in place for an accused who testifies even where he has refreshed his memory from the document. In response to this argument I make reference to Fish J's comment in Blank v. Canada (Minister of Justice) at paragraph 37:
Thus, the principle "once privileged, always privileged", so vital to the solicitor-client privilege, is foreign to the litigation privilege. The litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.
55There is support in the case law for the proposition that when a witness on a criminal trial has refreshed their memory from a document be it notes or a report, opposing counsel has the right to see it: Attorney-General for Ontario et al. C.E.C. Edwards Construction et al., 1987 CanLII 4230 (ON SC); R. v. Dunn, 2012 ONSC 2748 (CanLII); R. v. Fast, 2009 BCSC 1671 (CanLII); R. v. Mugford, [1990] N.J. No. 210 (NFLD. S.C. – C.A.); R. v. Monfils and four others, [1971] O.J. No. 1725 (C.A.); R. v. Lewis, [1968] B.C.J. No. 105 (BCSC).
56In R. v. Mugford, [1990] N.J. No. 210 (NFLD. S.C. – C.A.), the accused was convicted of 24 counts of fraud at trial. A new trial was ordered on appeal on the basis of misdirection amounting to non-direction on the nature of fraud. The court saw fit to deal with other grounds of appeal including the refusal of the trial judge to require the Crown to produce a report from the FBI which the officer-in-charge witness had looked at prior to his testimony. Marshall J. for the court stated:
Where a witness uses a memorandum to refresh his or her memory, opposing counsel has the right to look at it when cross-examining. Where that memorandum is written by a third-party real questions arise as to whether a witness ought to be allowed to refresh his or her memory from another's notes (see McWilliams: Canadian Criminal Evidence, second edition, pp. 1004-1005).
In this case the transcript does not establish whether the document was in fact used to refresh the witness's memory for the purpose of the evidence which he gave at trial. Had it done so the trial judge, in my view, should have ordered the production of the report to allow defense counsel to review the relevant portions.
57In R. v. Monfils and four others, [1971] O.J. No. 1725 (C.A.), the Ontario Court of Appeal dismissed an appeal of the dismissal of a prohibition application regarding a preliminary hearing. A police officer under cross-examination had refreshed his memory by reading his entire notes prior to appearing in court. The provincial court judge ruled that the notes were to be produced although it was unclear as to what portion of the notes were to be produced. Kelly J. stated at paragraph 6, "In dismissing this application we would indicate that there is no general protection to the notes of a police officer and that they are subject to the same rules as to cross-examination as apply to the evidence of any other witness before the court." (Emphasis mine.)
58In R. v. Lewis, [1968] B.C.J. No. 105 (BCSC), Rattan J. provided his opinion on the refusal of the magistrate to permit the defence to inspect police notes used by the officers to refresh their memories prior to giving evidence. The Court recognized that the decision is one in the discretion of the magistrate but in the circumstances the magistrate unduly restricted his discretion by ruling the notes could not be produced as they were not referred to by the witnesses while actually on the witness stand. The Court at paragraph 5 stated:
There is no absolute rule that in every case a witness must make any notes or documents made by him relevant to the trial available to counsel for the opposite side. Certainly, if he has need in court to refresh his recollection of past events by reference to notes made at or near the time of those events, the magistrate will invariably order production of those notes or documents for inspection by defense counsel for the purpose of possible cross-examination.
59I have read the decision of R. v. Nesbitt, supra, and with respect to the learned jurist disagree with his position on the applicability of the decisions of R. v. Mugford, supra, and R. v. Monfils and four others, supra, post Stinchcombe. The fact that the principles in Stinchcombe would have mandated the disclosure of the refreshing documentation in those cases does not detract from the viability of the reasoning or the rationale of the decisions in those cases. While dealing with Crown witnesses rather than a defence witness, the courts decisions did not restrict the principles involved to Crown witnesses. Stinchcombe adds the disclosure obligation layer to the Crown witness scenario; it does not detract from the applicability of those cases to the situation where a defence witness, which would include the accused, refreshes his or her memory from notes.
60The principles enunciated in Mugford and Monfils are still applicable post Stinchcombe to the situation when a witness testifies and refreshes their memory prior to doing so. I accept that it is a general principle of law that when a witness refreshes their memory from notes and testifies having done so the opposing party is entitled to see those notes. This is an implied waiver of litigation privilege. The reliability of the witness' evidence is one of the considerations the court must take into account. The opposing party is entitled to test that reliability through cross-examination, and where the witness has refreshed their memory from the notes, to explore the impact of those notes on the witnesses recall.
61When a witness who has refreshed their memory from their notes or previous statement is called by a litigant there is an implicit waiver of the litigation privilege. I recognize that experts fall within a category of their own both by virtue of the provisions of section 657.3(2) of the Criminal Code and the common-law principle that the opposing party is entitled to see the notes that form the basis for the expert's opinion once the expert testifies. That having been said there is an analogy to the decision of R. v. Stone, supra, in that the litigant chose to put information that was protected by litigation privilege before the court and so waived that privilege for the totality of the information.
62When a litigant chooses to put a witness before the court who has refreshed their memory, the litigant is putting that witness and the memory refreshing source before the court. The case law does not distinguish between witnesses at large and the subset of witnesses who are accused persons. I do not agree that litigation privilege for policy reasons should not end when an accused person testifies having refreshed their memory from notes. The reliability of an accused person's evidence is also in play. When the accused chooses to refresh his memory from notes to which litigation privilege would otherwise apply prior to taking the stand, the Crown is entitled to see such notes subject to the court's discretion. An accused person who has prepared notes to refresh their memory and uses those notes to the refresh their memory prior to testifying has waived any litigation privilege attached to those notes. It is important that the opposing party have the opportunity to test the memory of events and expose inaccuracies in memory.
63McWilliams Canadian Criminal Evidence at 18 – 18 states:
It could be argued that the absence of preconditions for out-of-court refreshment risks creating inaccurate memories that erroneously accepted as true by the fact finder. Yet this risk is countered in several ways:
The witness will be cross examined by opposing counsel, who can explore the materials reviewed by the witness and canvas any reliability concerns. Where any such concerns are exposed, the weight given to the witness' evidence will suffer accordingly, and may justify a warning to the jury.
The law is less clear with respect to whether the defense is required to disclose materials reviewed by its witnesses in preparing for trial. The older cases just mention may be relevant in this context. Also relevant is case law stating that the defense has no general obligation to make disclosure to the Crown, and the fact that the material may be covered by litigation privilege. Yet the court will likely be justified in ordering production for two reasons. First, the material has legitimate bearing on the weight to be ascribed to the witness' testimony. As a result, the court can probably order disclosure once the witness takes the stand. Second, the law is clear that disclosure must be made if the material is used to refresh the witness' memory in open court. It would be incongruent to require disclosure by the defense in this instance, but not where the witnesses memory was refreshed prior to trial.
64Mr. Sachkiw acknowledged he looked at the notes he made prior to trial. This alone would not be sufficient to meet the evidential burden on the Crown that there was a waiver of the privilege. The Crown must establish that aside from looking at the notes the notes were used to refresh memory. In the circumstances of this case Mr. Sachkiw agreed that he had refreshed his memory on the document and that he had done so on the date he testified. He also agreed that the notes were made so he could refresh his memory and that he wanted as much detail as possible to give evidence to the court. He also agreed that he would not have the same degree of detail or certainty without the notes and that is why he made them. While there is not the degree of detail as appears to be contemplated in the Fast decision as to what in particular in his memory was refreshed through the use of the notes, there is a sufficient basis to find that his memory was refreshed through the use of notes and this was not an insignificant glance at notes that had been made.
65In the case before me I find that Mr. Sachkiw has waived the litigation privilege relating to the notes that he made to refresh his memory.
Balancing Probative Value and Prejudicial Effect
66I have determined that the probative value of providing the notes to the Crown outweighs the prejudicial effect of such disclosure. The production of the notes will assist in the fact finding process and assessment of Mr. Sachkiw's evidence. There is no indication that he made those notes with any expectation of litigation privilege, even though it was applicable in the circumstances under which the notes were made. His evidence is that he wrote down what happened word for word so the notes relate to the events not tactical litigation decisions. The purpose of litigation privilege according to the decision in Blank, is to create a "zone of privacy", "a protected area to facilitate the process." As indicated in the Fast decision, "When evidence shows that a witness has relied on notes or some other document to refresh their memory before testifying at trial, they have placed in issue the degree to which their testimony relies upon the refresh document that is not in evidence." As indicated by Brown J. in Fast, "..where a witness refreshes, the claim of privilege over the refresh document is deemed waived based on the governing principle of trial fairness". The production of the notes at this time will not impair the efficacy of the adversarial process or impede the litigation process. It is not a premature disclosure of the defence position. I respectfully do not agree with the conclusion in Nesbitt that the restriction on an accused's scope for trial preparation is a greater mischief than the Crown's fair trial rights.
Redaction
67I canvassed with counsel the issue of review and redaction as set out in R. v. Fast, supra. Both parties urge that I not follow that procedure. I accord to their submission that there be no review of the document and no redaction and that his should be either an order of production or not. I have found that there was litigation privilege in these notes and that such has been waived. The notes are to be produced to the Crown.
Released: June 10, 2014
Signed: "Justice N. Dawson"
