WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Ryan Hartman
Before: Justice Kimberly E.M. Moore
Written Submissions Received on: August 15, 2017 and September 13, 2017
Reasons for Judgment Released on: October 24, 2017
Counsel:
Ms. C. Breault — counsel for the Crown
Ms. M. Bojanowska — counsel for Ryan Hartman
MOORE J.:
[1] Background and Procedural History
1On June 22, 2017, Ms. Breault alerted the Court that she was seeking to cross-examine Dr. Shapiro on handwritten notes that Mr. Hartman had provided to his first trial counsel, Ms. Geraldine Castle-Trudel. These handwritten notes had been prepared shortly after the incident of February 11, 2011. This issue was raised while Dr. Shapiro was already out of the court-room pertaining to an unrelated objection. Ms. Bojanowska advised she was opposed to this line of questioning, as a result of a previous ruling I had made.
2It was agreed that we would address this issue at a later time, so that we could use the available court time to continue the cross-examination of Dr. Shapiro on other issues (knowing that this cross-examination would not be completed that day).
3After Dr. Shapiro had left court for the day, I had preliminary discussions with counsel. I advised that I would need to hear further submissions, and then consider the matter. It was agreed that counsel would like an opportunity to research the issue, and thus written submissions may be more expeditious.
4On or about June 28, 2017, Ms. Bojanowska sent Ms. Breault an affidavit of her law clerk, Merill Kichler. Included with this affidavit was a letter from Ms. Bojanowska to Dr. Colin Shapiro dated March 1, 2017, as well as an index entitled "Appellant's Application Record re: Fresh Evidence" (materials filed before the Court of Appeal).
5Ms. Breault submitted written submissions on behalf of the Crown on August 15, 2017. Ms. Bojanowska submitted written submissions on behalf of Mr. Hartman on September 13, 2017.
6It is important to set out the background of this case so as to understand the issue before the Court.
BACKGROUND
7Mr. Hartman was found guilty in the Ontario Court of Justice of sexual assault upon R.C. At that trial, the issue of sexsomnia was not raised, and thus no expert evidence was adduced on that issue. The conviction was appealed to the Superior Court of Justice, and again the issue of sexsomnia was not raised. The conviction was upheld. Mr. Hartman then appealed further to the Court of Appeal, raising for the first time the following two issues: (1) ineffective assistance of counsel and (2) fresh evidence on appeal, pertaining to sexsomnia. The appeal was granted, and the Court of Appeal ordered a new trial, but limited this new trial (the one now proceeding in front of me) to a determination of whether Mr. Hartman should be found not criminally responsible on account of a mental disorder, or whether he should be found guilty.
8Prior to the appeal being heard at the Court of Appeal, Mr. Hartman signed a waiver of solicitor and client privilege, to permit his trial counsel, Ms. Castle-Trudel, to respond to the allegation of ineffective assistance of counsel.
9A number of documents, which would otherwise have been protected from disclosure due to solicitor and client privilege, became exhibits to Ms. Castle-Trudel's affidavit before the Court of Appeal. These included (inter alia) handwritten notes made by Mr. Hartman on February 15, 2011 (shortly after the alleged incident) and then provided to his trial counsel, memos of interviews trial counsel had with Mr. Hartman, and memos of telephone conversations between trial counsel and Mr. Hartman.
10Mr. Hartman and Ms. Castle-Trudel, as well as other witnesses, were cross-examined on many of these documents, and on the affidavits they had filed at the Court of Appeal.
11In addition, expert evidence was also tendered on the application before the Court of Appeal. The experts who testified included Dr. Julian Gojer and Dr. Mark Pressman.
12The trial commenced before me on April 10, 2017. Numerous items that had been filed at the first trial were filed on consent at this trial (including photographs and transcripts of witnesses' evidence). I was made aware by Ms. Bojanowska that Dr. Colin Shapiro had prepared a report, and would be testifying at this trial on the issue of sexsomnia.
13On the first day of trial (April 10, 2017), and prior to Mr. Hartman testifying before me, Ms. Breault made an application to be permitted to cross-examine Mr. Hartman on a number of documents, including the following: (1) the transcript of Mr. Hartman's evidence from his first trial; (2) Mr. Hartman's Affidavit in support of his application for bail, dated May 8, 2013; (3) the transcript of Mr. Hartman's cross-examination and re-examination before the Court of Appeal dated August 28, 2014; (4) handwritten notes prepared by Mr. Hartman for his trial counsel Ms. Castle-Trudel on February 15, 2011; and (5) handwritten notes entitled Ontario Case Submission Form prepared by Mr. Hartman for his trial counsel Ms. Castle-Trudel (undated).
14Ms. Bojanowska advised that there was no objection to Ms. Breault cross-examining Mr. Hartman on the transcript of his evidence at the first trial, but asserted solicitor and client privilege as it pertained to the remaining items.
15I ruled that the Crown could cross-examine Mr. Hartman on the transcript of the evidence at trial and also on the Affidavit, but not on the remaining documents.
16It was not indicated during submissions by counsel on April 10, 2017, that the handwritten notes prepared by Mr. Hartman, had been provided to any expert, including Dr. Shapiro. I had been advised on April 10, 2017, immediately following arraignment, that Dr. Shapiro would be called as a witness by the defence, but that is all that I knew as it pertained to expert evidence. The submissions before me on April 10, 2017 focused only on the fact that those handwritten notes had been provided to appeal counsel for both the Applicant and the Respondent, and I was advised that they had then been referred to during the course of the appeal (including during the cross-examination of Mr. Hartman before the Court of Appeal).
ISSUES
17There are a number of issues that I must address in this matter.
18First, were the handwritten notes made by Mr. Hartman provided to Dr. Shapiro intentionally or inadvertently?
19Second, if the notes were provided intentionally to Dr. Shapiro, may the Crown cross-examine Dr. Shapiro on these notes?
20Third, if these notes were inadvertently provided to Dr. Shapiro, may the Crown cross-examine Dr. Shapiro on these notes?
Issue One – Were the Notes Provided to Dr. Shapiro Intentionally or Inadvertently?
21Ms. Breault acknowledged receipt of the affidavit of Ms. Kichler, but submitted that the Court should find that the materials were specifically sent to Dr. Shapiro, rather than inadvertently provided to him. Ms. Breault asserted that if the list of documents in Ms. Bojanowska's March 1, 2017 letter was to be an exclusive list, rather than an inclusive list, many of the documents that were actually provided would never have been sent to Dr. Shapiro.
22Ms. Breault also submitted that if this list was meant to be an exclusive list, then this would have resulted in potentially important information not being provided to the expert, including transcripts of defence witnesses. This, it is submitted, would have resulted in an incomplete picture being provided to Dr. Shapiro.
23Ms. Bojanowska submitted that the handwritten notes were inadvertently provided to Dr. Shapiro. Ms. Bojanowska referred to the affidavit of Ms. Kichler, in which it is indicated that only the documents listed in Ms. Bojanowska's March 1, 2017 letter were to be sent to Dr. Shapiro. As such, any document not listed in this exclusive list should not have been provided to Dr. Shapiro.
24Thus, the only documents that should have been provided to Dr. Shapiro were the following: (1) transcript of trial of April 16, 2012; (2) transcript of trial of April 17, 2012; (3) Dr. Gojer's reports; (4) Dr. Gojer's evidence; (5) affidavit of Mr. Hartman; (6) affidavit of Heather Childs; (7) affidavit of Marsha Hartman; (8) a USB drive; (9) an assessment report prepared by Dr. Shapiro on August 23, 2013; and (10) a copy of a report by Dr. Weinberger.
25In support of this assertion, Ms. Bojanowska stated that if everything in the list of materials that was referred to in Dr. Shapiro's report was to have been sent to him, it would have been unnecessary to specifically refer to the USB drive and the report of Dr. Weinberger, as these were already included in the bound volume of materials.
26Ms. Bojanowska submitted that the disclosure of the handwritten notes by Ms. Kichler to Dr. Shapiro was inadvertent, and not intentional, and contrary to the instructions of Mr. Hartman and Ms. Bojanowska.
27Ms. Bojanowska also stated in her written submissions that based on the lack of prominence given to the notes in Dr. Shapiro's report, Ms. Bojanowska did not become aware that the handwritten notes had been provided until the issue was raised by Ms. Breault on June 22, 2017.
28Ms. Bojanowska submitted that it was also possible that an incorrect index, referred to as "the main index" was provided to Dr. Shapiro, and that in fact he never actually received the items he listed in his report. Ms. Bojanowska submitted that she has not been able to verify whether Dr. Shapiro did in fact actually receive the materials listed in his report as she, quite properly, has not communicated with him as he is in the midst of cross-examination.
29I will address this last submission first – the suggestion that it is possible that Dr. Shapiro did not in fact receive all of the materials he listed in his report.
30I have considered the following and find that Dr. Shapiro did in fact receive the handwritten notes of Mr. Hartman, as well as everything else referred to in his report at pages 8-9:
31First, despite incorrectly spelling the surname of Heather Childs (spelling it "Charles") in the report (which would have been typed by Dr. Shapiro's assistant), it is clear that Dr. Shapiro carefully noted the materials he had been provided. Dr. Shapiro indicated at item I1 on page 9 of his report that Ms. Childs' December 2, 2013 affidavit had been provided twice. Thus, it would appear that he was very careful about noting the materials he had received.
32Second, Dr. Shapiro's report stated at page 9 that he reviewed the written materials he received, and also referenced that he was missing the first four pages of Dr. Gojer's curriculum vitae in the materials he was provided. Thus, I conclude that if Dr. Shapiro was missing items that were listed in the Index as materials he was to have received, he would have noted same as being missing.
33Third, one aspect of cross-examination has focused on the materials reviewed by Dr. Shapiro. On two occasions on April 20, 2017, Dr. Shapiro referred to the volume of materials he had reviewed – stating that the materials he reviewed comprised a whole box, and in fact, if he had brought everything with him to Court that he has reviewed, he would have needed an additional suitcase.
34Fourth, at the commencement of Dr. Shapiro's evidence in examination-in-chief on April 19, 2017, Ms. Bojanowska reviewed with Dr. Shapiro the materials that he had received. The following exchange took place:
Ms. Bojanowska – So I guess where I want to begin is I understand that you've reviewed a number of documents and materials in relation to this case.
Dr. Shapiro – Correct.
Ms. Bojanowska – Okay. These are materials that were provided to you and they included evidence from the first trial, right?
Dr. Shapiro – Correct.
Ms. Bojanowska – A variety of materials that were filed on an appeal in relation to this matter.
Dr. Shapiro – Correct.
Ms. Bojanowska – Okay, including some affidavit evidence from a number of witnesses, including Mr. Hartman's mother and his partner, right?
Dr. Shapiro – Yes.
Ms. Bojanowska – You've received cross-examinations that were done on appeal, and you've reviewed those, as well.
Dr. Shapiro – Yes.
Ms. Bojanowska – Okay. In addition, as I understand it, you have reviewed the expert reports and testimony of Dr. Gojer, who was retained on the appeal.
Dr. Shapiro – Correct.
Ms. Bojanowska – As well as Dr. Pressman who, as I understand it, was a Crown expert in relation to the appeal, right?
Dr. Shapiro – Right.
35Ms. Bojanowska suggested to Dr. Shapiro that he reviewed those cross-examinations (plural) and he agreed. Ms. Bojanowska next referred to the testimony of Dr. Gojer, and to Dr. Shapiro receiving the testimony of Dr. Gojer. Thus it is clear that that Dr. Shapiro had received and reviewed multiple cross-examinations. Yet, the letter from Ms. Bojanowska to Dr. Shapiro of March 1, 2017 makes no specific reference to any transcripts from the Court of Appeal being provided to Dr. Shapiro other than Dr. Gojer's evidence. If Dr. Shapiro was only to have been provided with the items specifically stated in the March 1, 2017 letter, why would Ms. Bojanowska have suggested to Dr. Shapiro that he had reviewed these transcripts?
36I conclude that if Dr. Shapiro had not received the items referred to in the index, and then listed on pages 8 and 9 of his report, he would have indicated same. Further, if he had only received the specific items that Ms. Bojanowska asked that I find were provided, then these would not take up a whole box.
37I find that Dr. Shapiro did, in fact, receive all of the items listed in his report.
38I will now address the manner in which the items were provided to Dr. Shapiro, and specifically whether they were provided to Dr. Shapiro intentionally or inadvertently.
39I have considered the following, and find that everything referred to in the index attached to Ms. Kichler's affidavit, and referenced at pages 8-9 of Dr. Shapiro's report, and including the handwritten notes of Mr. Hartman, were provided intentionally to Dr. Shapiro:
40First, if it was intended by Ms. Bojanowska that only specific materials be provided to Dr. Shapiro, it would have been unnecessary to even include the following part of the sentence at item 3 of the March 1, 2017 letter – "Bound Volume of Fresh Evidence materials filed on appeal at the Court of Appeal of Ontario which includes". Rather, the items being provided would simply have been specifically listed.
41Second, the wording of item 3 in the March 1, 2017 letter is very vague, and not what would be expected if only specific documents are being provided. For example, did the reference to reports of Dr. Gojer also include the materials Dr. Gojer reviewed? When it refers to "Dr. Gojer's reports and evidence" does this mean his affidavits, or his evidence on cross-examination, or both? The Affidavit of Ms. Kichler does not suggest that there was any discussion between her and Ms. Bojanowska as to what was to be considered as "Dr. Gojer's reports and evidence." Thus how would Ms. Kichler have known what to send, unless she was to send the complete bound brief?
42Third, the report of Dr. Shapiro was prepared on March 9, 2017. Ms. Bojanowska would certainly have reviewed this report prior to providing it to Ms. Breault, and before tendering Dr. Shapiro as a witness and filing his report. Ms. Bojanowska has asked that I find that she was not alerted to the inclusion of the handwritten notes until it was raised by Ms. Breault on June 22, 2017. I am specifically asked to consider the lack of prominence attributed to the reference to the handwritten notes within Dr. Shapiro's report.
43The difficulty I have with this submission is multi-faceted. The list of materials Dr. Shapiro states he received and reviewed is listed over two pages. If Ms. Bojanowska had only sent the limited number of items she asserted was intended to be sent, then surely the sheer number of items listed would have caused Ms. Bojanowska to look more carefully at the items listed. Also, Dr. Shapiro referred specifically to an index that was provided with the materials. Ms. Bojanowska would know from the letter she wrote on March 1, 2017, that there was no reference to an index. Further, the very first item referred to by Dr. Shapiro in his list of items received was a Notice of Application of Mr. Hartman. This was not listed in the March 1, 2017 letter. In addition, there is reference to cross-examinations of Heather Childs and Marsha Hartman. There is also reference to a pre-sentence report and the statement of R.C. None of these were referred to in the March 1, 2017 letter.
44Most importantly, the reference to the handwritten notes was not buried in the middle of the list of items referred to by Dr. Shapiro. Rather, it was one of final six items referred to in the index list, and most importantly, all but the report of Dr. Weinberger were the subject of the Crown's original request to cross-examine Mr. Hartman on. With the exception of Dr. Weinberger's report, these final items were all items that Mr. Hartman was cross-examined on before the Court of Appeal. Thus, to accept this proposition, I would have to find that Ms. Bojanowska not only missed a reference to the handwritten notes, but also to all of the other items over which Mr. Hartman was asserting solicitor and client privilege.
45I am satisfied that if Ms. Bojanowska had been concerned that Dr. Shapiro had received far more information than he was to have been provided, Ms. Bojanowska would not have disclosed the report to the Crown, and Mr. Hartman would not have relied upon this report.
46Fourth, as indicated above, during examination in chief Ms. Bojanowska reviewed some of the materials reviewed by Dr. Shapiro to assist in the preparation of his report. Ms. Bojanowska listed a number of items that had been reviewed by Dr. Shapiro, and specifically referred to the cross-examinations of the witnesses before the Court of Appeal. As indicated previously, these transcripts were not listed in the letter of March 1, 2017. That evidence, which I note was given on April 19, 2017 (approximately seven weeks after the materials had been provided to Dr. Shapiro), supports that Ms. Bojanowska was aware that Dr. Shapiro had been provided those cross-examinations.
47Fifth, Ms. Bojanowska advised this court on June 22, 2017 that the materials were in fact provided intentionally to Dr. Shapiro. Dr. Shapiro was out of the court room at the time Ms. Breault raised the issue of the application currently before me. Ms. Breault alerted me to her intention to apply to cross-examine Dr. Shapiro on the handwritten notes that had been provided to Dr. Shapiro. Ms. Bojanowska did not respond with surprise that the handwritten notes had been provided to Dr. Shapiro. Rather, Ms. Bojanowska stated as follows, "[w]e have a ruling from Your Honour as to what use can be made of it, and it cannot be used, in my respectful submission. The expert had to be provided with everything in the event that, obviously, there was a different ruling from Your Honour. But in my respectful submission, that cannot come before the Court because it is not even substantiated, it hasn't been fleshed out in Mr. Hartman's evidence."
48After Dr. Shapiro had left for the day we re-addressed the application being brought by the Crown. The following exchange took place between Ms. Bojanowska and the Court, and confirmed for me that providing the materials to Dr. Shapiro for his review was done so intentionally:
Court – Do you have any preliminary comments?
Ms. Bojanowska – I do. Given Your Honour's previous rulings that the documents in question remain protected by solicitor-client privilege, and the fact that Dr. Shapiro is retained as a defence expert, in my respectful submission, anything that is solicitor-client privilege that has been provided to him remains solicitor-client privilege. That's my view. That cannot be….it hasn't been waived by Mr. Hartman and hasn't been waived in that regard. It had to be provided to the expert. It had to be.
Court – But it did not have to be provided to this expert. It had to be provided to Dr. Gojer for the Court of Appeal. It did not have to be provided to Dr. Shapiro. Dr. Shapiro played no role in the Court of Appeal making a decision about a new trial. So is that…?
Ms. Bojanowska – He did have to see, in my respectful submission. At that point, we had no ruling. He had to see, in my respectful submission, all available materials that were in the defence file. A complete picture had to be presented to Dr. Shapiro. Those documents have now been found to be protected by solicitor-client privilege. In my submission, he cannot be questioned about it. There is very little value to even allowing the questioning, because that evidence is not even before the Court.
49In R. v. Mohamed, [2008] O.J. No. 5162 (S.C.J.), Justice Nordheimer addressed the issue of inadvertent disclosure. In that case, the Crown inadvertently provided (as part of disclosure) materials that were protected by informer privilege. The Crown immediately advised defence counsel of this, and requested that the materials be returned. This request was made on a number of occasions and when defence counsel did not return the materials, the Crown made an application for its return. The Court held at paragraph 6 that, "[t]he importance of the privilege leads to the concomitant duty to take all necessary steps to protect it." In R. v. Mohamed, the Court emphasized the professional responsibility on parties who receive inadvertent disclosure, to return same when advised of same. Justice Nordheimer ordered that the materials be returned to the Crown.
50In the Mohamed case it was clear that the disclosure was inadvertent, and it was also clear that the Crown acted immediately to protect the privilege (in that case the informer privilege). In the case before me, Ms. Bojanowska intentionally provided the materials to Dr. Shapiro so that he would have a complete picture, and specifically directed in her letter of March 1, 2017 that he review these materials. Ms. Bojanowska then received the report from Dr. Shapiro. Ms. Bojanowska then disclosed this report to Ms. Breault prior to the trial. Ms. Bojanowska questioned Dr. Shapiro on the materials reviewed by him in the preparation of the report (including materials not specifically identified in her March 1, 2017 letter).
51Based on all of the above, I have no difficulty finding that Ms. Bojanowska intentionally provided Dr. Shapiro with all of the information Dr. Shapiro set out on pages 8-9 of his March 9, 2017 report.
Issue Two – If the Handwritten Notes Were Provided Intentionally to Dr. Shapiro, May the Crown Cross-Examine on These Handwritten Notes?
52Ms. Breault submitted that solicitor and client privilege was waived once the defence called the expert who had reviewed those handwritten notes.
53Ms. Breault also asked the court to find that it is particularly important to permit cross-examination of Dr. Shapiro on these notes, as much of Dr. Shapiro's report relies upon Dr. Gojer's report, and the issue of Mr. Hartman's recollection of events is explored by both doctors in their reports. Finally, Ms. Breault submitted that the Crown must be able to test the foundation for Dr. Shapiro's opinion, so that the Court can properly assess Dr. Shapiro's credibility and neutrality.
54Ms. Bojanowska submitted that there would be no prejudice to the Crown if Ms. Breault was not permitted to cross-examine Dr. Shapiro on the handwritten notes, as they do not appear to have formed part of Dr. Shapiro's opinion. I was also asked to find that permitting the Crown to cross-examine Dr. Shapiro on these notes would unnecessarily prolong the proceedings.
55In addition, Ms. Bojanowska disagreed with Ms. Breault's submission, that to prohibit cross-examination of Dr. Shapiro on the handwritten notes would result in the opinions of two defence experts being untested. I am asked to find that the defence is only relying on the evidence of one expert – Dr. Shapiro – and to also find that the Crown has more than enough other material to assist in cross-examining Dr. Shapiro.
56Further, Ms. Bojanowska asserted when making preliminary submissions on this issue on June 22, 2017, that the Court should find that the handwritten notes were still covered by solicitor and client privilege due to my previous ruling (of April 11, 2017).
57I was also asked by Ms. Bojanowska during the preliminary submissions on June 22, 2017, to find that the Crown could not cross-examine on these handwritten notes as they could not be "substantiated" and because this had not been "fleshed out in Mr. Hartman's evidence." Further, Ms. Bojanowska submitted that there was very little value in cross-examining Dr. Shapiro on this issue as the "evidence [the handwritten notes] is not even before the court."
58Prior to addressing the submissions of counsel, it important to review of some of the legal principles that I must consider.
59I begin my analysis with a brief reference to solicitor and client privilege and litigation privilege.
60Solicitor and client privilege is one of the most important and fundamental privileges that exists within our legal system. Law school students learn of the importance of this privilege in first year evidence classes. This privilege applies to all confidential communications between a client and his counsel, whether oral or written. The privilege belongs to the client, and only to the client. The client may expressly waive this privilege. The privilege may also be found to be implicitly waived, but such a finding will be rare.
61Litigation privilege arises where counsel engages a third party to assist in the preparation of a client's case. The communications between the third party and the counsel, as well as any materials prepared by the third party or provided by the third party to the counsel, are deemed to be privileged. This privilege may also be waived by the client, and such waiver may be implicit or explicit.
62In R. v. Stone, 1999 CanLII 688 (SCC), [1999] S.C.J. No. 27 (S.C.C.), the accused was charged with the murder of his spouse. During his opening submissions, defence counsel told the jury that they would hear from Dr. Janke during the trial, and made reference to aspects of the report that had been prepared by this expert.
63The Crown sought the production of the report at the outset of the defence case, prior to any witnesses being called. The defence asserted that there was no obligation to disclose the report until the expert was called as a witness in court. The trial judge ordered the production of the report.
64The British Columbia Court of Appeal held that the report was privileged until the expert took the stand as a witness, but relied upon s. 686(1)(b)(iii) of the Code in finding that no miscarriage of justice had occurred. This was based on the defence counsel's statement in his opening address, wherein he advised the jury that he would be calling Dr. Janke as a witness.
65The Supreme Court of Canada considered this issue and stated as follows at paragraphs 98-99:
98 By disclosing what he wanted from the report in favour of the accused, defence counsel could not then conceal the balance of the report whose contents might contradict or put in context what had been disclosed. It is true that Dr. Janke's report included not only his diagnosis, but a recital of the facts as provided by the appellant and which formed the basis of his expert opinion. It was through disclosure of the report, for example, that the Crown learned that the accused, contrary to his initial trial testimony, appeared to have some recall of the beginning of the fatal assault by way of a dream. The contents of the report, including the statements attributed to the appellant, were of course known to defence counsel at the time he chose to make the disclosure to the jury. It was not open to the appellant to pick and choose the portions of an expert report to be put before the trier of fact. Accordingly, the trial judge acted appropriately by ordering the production of Dr. Janke's report at the conclusion of the defence opening address.
99 However, I would also, if it were necessary, give effect to the alternative ground accepted by McEachern C.J. The act of calling of Dr. Janke would certainly constitute waiver of any privilege attached to his report. As noted by McEachern C.J., once a witness takes the stand, he/she can no longer be characterized as offering private advice to a party. They are offering an opinion for the assistance of the court. As such, the opposing party must be given access to the foundation of such opinions to test them adequately. Given the fact that the report would have to have been disclosed after Dr. Janke's direct examination, the prior disclosure of the report cannot be said to have had any material impact on the outcome of the trial. Absent the earlier disclosure, the Crown would have been entitled to stand the appellant down before completing its cross-examination of him, and to recall him once they had been given an opportunity to consider the contents of the report. Accordingly, even if defence counsel's opening address had been insufficient to trigger disclosure, s. 686(1)(b)(iii) of the Code would properly be applied to cure the error.
66In the case before me, there was no need for me to make an order such as the one in R. v. Stone, supra. Ms. Bojanowska disclosed the report to Ms. Breault in advance of the trial, and thus obviously prior to Dr. Shapiro testifying. Ms. Bojanowska advised me on the first day of trial that she would be calling Dr. Shapiro as a witness. Mr. Hartman and Ms. Bojanowska both advised the Court that Mr. Hartman had never reviewed the report. The report itself was not filed as an exhibit until Dr. Shapiro testified. However, the Crown cross-examined Mr. Hartman on this report, without objection by defence.
67It was well known to Mr. Hartman that the Crown already had access to the materials that were listed in Dr. Shapiro's report, as there were numerous references to these materials when I was asked to make a ruling on cross-examination of Mr. Hartman previously (prior to the defence calling any evidence in this trial). Thus, there had never been a requirement for an application for production of these documents.
68In R. v. Medwid, [2008] O.J. No. 4717 (S.C.J.), the defence proposed to call an expert witness at trial. The defence disclosed the report to the Crown at end of the Crown's case. The Crown made an application for notes of the interview that the expert had with the accused. The defence opposed the application, and took the position that the focus of the expert evidence was not based on the interview that the expert had with the accused, but rather on hypotheticals that would be put to the expert. The Court held that the notes were to be disclosed.
69The Court placed significant emphasis on the role of the expert who testifies before a court, and stated as follows at paragraph 16:
"In the context of the questions as expanded, it would be misleading to present Dr. Rosenbloom as an expert who could give the opinion evidence without reference to the reality that he had interviewed Mr. Medwid. His conclusion on the intention in issue would inevitably relate to Mr. Medwid's mental state, and the jury can only assess that after full cross-examination based on the true situation. The "games-playing" to which Justice Gillese refers in her concurrent decisions in Horodynsky Farms Inc. v. Zeneca Corp., 2006 CanLII 25345 (ON CA), [2006] O.J. No. 3012 (C.A.) and Conceicao Farms Inc. v. Zeneca Corp. (2006), 82 O.R. (3d) 229 (C.A.) points out the importance of knowing the influences that have informed the expert opinion so that confidence in the process, including confidence in the expected neutrality of experts, is enhanced."
70The letter to Dr. Shapiro from Ms. Bojanowska, wherein Ms. Bojanowska provided the materials at issue (and specifically the handwritten notes of Mr. Hartman) stated, "I am sending relevant case materials for your review in anticipating of your meeting with Mr. Hartman and to assist you in the preparation of your report…" The wording of this letter made it clear that first, Ms. Bojanowska considered the materials to be relevant, and second, that it was expected that Dr. Shapiro would review these materials and consider same, both when interviewing Mr. Hartman and when preparing the report.
71Whether Dr. Shapiro did, or did not, consider these materials is a legitimate area of cross-examination.
72Thus, it is certainly permissible for the Crown to cross-examine Dr. Shapiro on the materials he was provided, and his review of same, so that his neutrality as an expert witness can be explored.
73In R. v. Clarke, [2014] N.S.J. No. 242 (N.S. S.C.), the three accused persons sought production of two draft reports prepared by a crown expert, as well as communications between the RCMP and the expert pertaining to the preparation of the report.
74The Crown's position was summarized as follows, at paragraph 17, "[i]n response, the Crown argues that the information sought is protected from disclosure by litigation or solicitor-client privilege. The Crown does acknowledge the proposition that when an expert's report is tendered for trial at least some privilege is waived. The report and any material which contributed to the foundation of the report, or which is clearly relevant to the witness's credibility, should be disclosed. The Crown further argues that the material sought falls outside of any waiver created by Mr. Evans' designation as an expert witness."
75The Court ultimately held that the requested materials were not protected by privilege – solicitor and client privilege or litigation privilege. The Court also found that even if privilege had attached to the materials sought, the Court would find that the privilege had been waived. In concluding this, the Court relied on R. v. Stone, supra and R. v. Friskie, 2001 CanLII 392 (SK PC), [2001] S.J. No. 216 (Sask. Prov. Crt.).
76The Court in R. v. Clarke, supra also discussed what it meant by relevance as it pertains to materials provided to the expert witness, and stated as follows at paragraph 25:
25 In Brown v. Lavery, 2002 CarswellOnt 496 Justice Ferguson confirmed that the threshold for relevance is low. He stated that any information provided to an expert witness is presumptively relevant to the expert's task. He states as paras. 58-63:
58 The Supreme Court in Stone said that the purpose of the production is to permit opposing counsel to test the expert's opinions. It contemplated that the content of a report might contradict the opinion given in testimony. So might other information in the expert's possession. An opinion can obviously be tested in many ways: by comparing the conclusion to the data relied on, by comparing the opinion to data which was available but not relied on, by considering whether the expert's opinion was influenced by the nature of the request of counsel or by information provided by counsel which was not relied on, and by considering whether the opinion was altered at the request of counsel - for instance, by removing damaging content.
59 It is difficult to understand how a determination could be made as to what was influential. Would counsel decide? Would the expert decide? Why should this decision not be open to scrutiny? The expert might not realize or acknowledge the extent to which information provided has influenced his or her opinion.
60 It seems logical that if counsel sends the expert information counsel does so because he or she believes this information is relevant to the expert's task. If it is relevant to the task then it seems to me it should be available to counsel who must test the opinion.
61 If counsel for the defendant sent the C.R. Eddie report to Arcon it seems axiomatic that counsel must have considered it relevant to the task assigned to Arcon.
62 In Stone the court did not require the trial judge to consider the content of the report before ordering its production. In my view this indicates that the court need not conduct a voir dire in this regard. The Stone decision also implies that there is no need to rely on counsel's vetting the material or rely on the expert doing so because the court did not suggest that either instructing counsel or the expert should be involved in the decision. The judge simply ordered production.
63 Stone makes clear that production should be ordered even if it involves the disclosure of information, such as statements of the client, which would otherwise be subject to solicitor and client privilege.
77In the case before me, the issue of relevance is very clear, in that Ms. Bojanowska clearly stated in her letter to Dr. Shapiro of March 1, 2017, that the materials being provided were relevant materials. Even without this clear indication, the presumption is that if the materials are being provided to the expert to review, they must be relevant.
78Ms. Breault has cross-examined Dr. Shapiro as to his meetings with Mr. Hartman. This, of course has not been objected to. It would be difficult for Ms. Bojanowska to argue that cross-examination pertaining to interviews between the tendered expert and the accused person is irrelevant. The same situation may apply if Mr. Hartman had prepared written materials specifically for the expert to assist in the preparation of the report.
79Where Ms. Bojanowska raises an objection seems to be as it pertains to materials that were not prepared specifically for the expert or which were, at one point, protected by solicitor and client privilege. Ms. Bojanowska asks that I distinguish between situations where an expert interviews an accused and those where the expert has received information from an accused that would otherwise have been protected by this solicitor and client privilege.
80I find that it is important that Crown counsel have an opportunity to cross-examine the expert on other materials prepared by the accused, when these materials have been provided by the accused to the expert for his review. Dr. Shapiro is providing an opinion to the Court that includes a consideration of Mr. Hartman's memory or recollection of the relevant events. The handwritten notes provided to Dr. Shapiro were made by Mr. Hartman shortly after the incident. Thus, these may indeed be relevant to issues pertaining to Dr. Shapiro's opinion.
81It is important to always remember what the role of the expert is when he testifies before the Court. In Vancouver Community College v. Phillips, Barratt, 1987 CanLII 2532 (BC SC), [1987] B.C.J. 3149 (B.C. S.C.), the plaintiff's counsel filed a number of expert reports during his opening statement. The defendant's counsel sought production of all documents in the possession of the experts who prepared reports. The plaintiff asserted that many of these materials were protected by solicitor and client privilege and/or litigation privilege.
82The Court held that all documents were to be produced in the case before him.
83The Court stated at paragraph 34 that, "[w]hen an expert witness who is not a party is called to testify, or when his report is placed in evidence, he may be required to produce to counsel cross-examining all documents in his possession which are or may be relevant to matters of substance in his evidence or to his credibility, unless it would be unfair or inconsistent to require such production. Fairness and consistency must be judged in the circumstances of each case. If those requirements are met, the documents are producible because there is an implied intention in the party presenting the witness's evidence, written or oral, to waive the lawyer's brief privilege which previously protected the documents from disclosure."
84In the case before me, the handwritten notes were made by Mr. Hartman shortly after the incident. These handwritten notes may be relevant to the substance of Dr. Shapiro's evidence, and/or to Dr. Shapiro's credibility and objectivity.
85Thus, it would indeed be unfair to prohibit the Crown from cross-examining on these handwritten notes.
86In the Vancouver Community College case, the Court also addressed the issue of waiver of litigation privilege where an expert is called as a witness in the court room. The Court held as follows, at paragraphs 27-29:
27 So long as the expert remains in the role of a confidential advisor, there are sound reasons for maintaining privilege over documents in his possession. Once he becomes a witness, however, his role is substantially changed. His opinions and their foundation are no longer private advice for the party who retained him. He offers his professional opinion for the assistance of the court in its search for the truth. The witness is no longer in the camp of a partisan. He testifies in an objective way to assist the court in understanding scientific, technical or complex matters within the scope of his professional expertise. He is presented to the court as truthful, reliable, knowledgeable and qualified. It is as though the party calling him says: "Here is Mr. X, an expert in an area where the court needs assistance. You can rely on his opinion. It is sound. He is prepared to stand by it. My friend can cross-examine him as he will. He won't get anywhere. The witness has nothing to hide."
28 It seems to me that in holding out the witness's opinion as trustworthy, the party calling him impliedly waives any privilege that previously protected the expert's papers from production. He presents his evidence to the court and represents, at least at the outset, that the evidence will withstand even the most rigorous cross-examination. That constitutes an implied waiver over papers in a witness's possession which are relevant to the preparation or formulation of the opinions offered, as well as to his consistency, reliability, qualifications and other matters touching on his credibility.
29 It is fair that expert witnesses should be thoroughly cross-examined on all matters touching the weight of the evidence they offer. In our system, that is the accepted method of getting at the truth. It would not, however, be fair to require the witness to deliver up papers that are wholly irrelevant, either to the substance of his opinion or to his credibility. For example, papers concerning his personal affairs remain his own and are no one else's business. Similarly, the expert may be doing work for other persons not party to the litigation. He should not be required to disclose their secrets. As well, in the litigation in which the witness is called to testify, he may remain a confidential advisor to the party who retained him in, at least, one respect. He may be asked or may have been asked to give advice on how to cross-examine the other side's witnesses. In putting forward his own opinion, he need not necessarily attack the opinions of experts opposite. Counsel may wish to save that sort of ammunition until after the adverse expert has been called. It would not be fair to require the witness to disclose documents relating only to the cross-examination of such adverse experts because it would give the other side an advantage not available to the party calling evidence on a subject matter first.
87In the case before me I find that there was a waiver of solicitor and client privilege and litigation privilege when Mr. Hartman chose to call Dr. Shapiro as a witness, and tender his report. By holding out Dr. Shapiro as an expert witness, Mr. Hartman is asking that I accept Dr. Shapiro's opinion, and find that Dr. Shapiro's opinion is credible.
88I will now address three additional submissions made by Ms. Bojanowska.
89First, my ruling on April 11, 2017 that Mr. Hartman could not be cross-examined on the handwritten notes he had made for Ms. Castle Trudel, was based on the finding that (1) the waiver was specific and limited, and that (2) Mr. Hartman was compelled to provide such waiver to allow his trial counsel to respond to the allegations of ineffective assistance of counsel. I was not made aware at that time of hearing the application on April 10, 2017, that these same handwritten notes had been provided to Dr. Shapiro, the expert witness who would be testifying in the matter before me. It is very possible that I may not have made the same ruling if I had known this information at that time. Rather, I may have found that Mr. Hartman had waived solicitor and client privilege by providing the handwritten notes to Dr. Shapiro who had then prepared a report and would be testifying on this trial. In addition, I may have adopted the process outlined by the Court in R. v. Stone, supra, and permitted the Crown to stand down the cross-examination of Mr. Hartman as it pertained to Dr. Shapiro's report, until after Dr. Shapiro had testified.
90Second, there is no requirement that the information relied upon by Dr. Shapiro be fleshed out or substantiated in any way prior to Dr. Shapiro testifying. This would result in trials becoming very unwieldy and lengthy if the author of the document must first be questioned on same. For example, in the case before me there has been significant testimony about Dr. Gojer's reports and evidence. This testimony was adduced by both Ms. Breault and Ms. Bojanowska. Yet, Dr. Gojer has not testified and he has not been questioned on these reports and his previous evidence. Thus, one might say that it has not been fleshed out or substantiated. At no time will counsel be able to ask me to accept the conclusions of Dr. Gojer as being admissible for the truth of their contents simply because Dr. Shapiro has reviewed them. The same applies to the handwritten notes of Mr. Hartman, as well as any other evidence reviewed by Dr. Shapiro. Dr. Shapiro may be questioned about the material he reviewed, what weight he placed on it, whether he drew any conclusions from his review of the evidence, and so forth. It is not the handwritten notes of Mr. Hartman (or any other document reviewed) that becomes evidence before me, but rather the evidence of Dr. Shapiro as to his conclusions based on the review of those documents.
91To be clear, Ms. Breault would not be entitled to suggest that the Court accept the statements in Mr. Hartman's handwritten notes as being admissible for the truth of their contents. This would be improper as Mr. Hartman has not been examined or cross-examined on these handwritten notes.
92However, it is not only permissible, but expected, that crown counsel would put to a the expert witness any information that has been provided to him by defence counsel for the purpose of preparing a report, and in particular information that came directly from the accused person. It is most certainly permissible for crown counsel to inquire of a defence expert, especially when he has stated he has reviewed all of the materials provided to him, what weight he placed on certain materials, his reason for same, and so forth.
93Third, Ms. Bojanowska stated that she had to provide "everything" to Dr. Shapiro as there had been no ruling from the Court on whether Mr. Hartman could be cross-examined on information that he would assert solicitor and client privilege over. I do not accept this argument. Mr. Hartman did in fact have a choice as to what was provided to the expert. Ms. Bojanowska stated in her letter of March 1, 2017 that the materials were being provided "in anticipation of your meeting with Mr. Hartman and to assist you in the preparation of your report".
94The expectation would thus be that Dr. Shapiro review the information and then consider this information when he interviewed Mr. Hartman and then prepared his report. The information provided to Dr. Shapiro would be protected from disclosure due to litigation privilege at this point. However, as soon as Dr. Shapiro testified, that litigation privilege (as well as the previous solicitor and client privilege) has been waived. If Mr. Hartman was concerned about the possible impact upon solicitor and client privilege, Mr. Hartman could have brought an Application for an Order for Direction prior to providing any materials to Dr. Shapiro.
95In conclusion, this was not a situation wherein Ms. Bojanowska learned that materials that would otherwise have been protected by solicitor and client privilege had been inadvertently disclosed. Rather, Ms. Bojanowska made the intentional decision to provide these materials to Dr. Shapiro, including the handwritten notes. As stated by Ms. Bojanowska on June 22, 2017, a decision was made to provide everything to Dr. Shapiro. Mr. Hartman then made the decision to call Dr. Shapiro as an expert witness. Thus, any solicitor and client privilege and litigation privilege that would have existed in the report and the materials reviewed to prepare same, was waived at that time.
96Mr. Hartman presented Dr. Shapiro as an expert witness to the Court. In that role, Dr. Shapiro is to objective and unbiased. His role is to assist the Court in understanding the opinion that is presented, and the basis for that opinion. It is to be expected that Dr. Shapiro will be cross-examined on all materials that were provided to him for his review, where those materials may be relevant to the opinion itself, or to the credibility or objectivity of the expert witness. In the case before me, the materials were intentionally provided to Dr. Shapiro for his review, and the letter accompanying these materials specifically set out that they were relevant materials.
97The solicitor and client privilege that existed in the handwritten notes was waived as soon as Dr. Shapiro testified in this matter. The Crown may cross-examine Dr. Shapiro on the handwritten notes created by Mr. Hartman.
Issue Three – If the Handwritten Notes Were Provided Inadvertently to Dr. Shapiro, May the Crown Cross-Examine on the Handwritten Notes?
98Although I have already concluded that the notes were provided intentionally to Dr. Shapiro, I will also address the issue of whether the Crown would be able to cross-examine Dr. Shapiro if the handwritten notes had been provided inadvertently to Dr. Shapiro.
99In R. v. Ward, 2016 ONCA 568 (CanLII), [2016] O.J. No. 3816 (C.A.), the Court of Appeal dealt with the issue of issue of inadvertent disclosure. In that case, the accused appealed based upon ineffective assistance of counsel. Former trial counsel's appeal counsel inadvertently sent a document to the appellant's appeal counsel (specifically a letter prepared by trial counsel for his own counsel, and essentially for the purpose of responding to the appeal). Once it was discovered that this letter had been disclosed to the applicant's appeal counsel, its return was immediately requested.
100It was agreed by all parties that solicitor and client privilege had not been waived, and that the disclosure of this letter was inadvertent. The Court upheld the solicitor and client privilege. The Court also held that solicitor and client privilege can be waived, and that this can be either an express or implied waiver. The Court of Appeal then set out a number of factors that should be considered to determine if solicitor and client privilege has been waived in the specific circumstances of each case. At paragraph 35, these factors are set out as follows:
35 Inadvertent disclosure does not necessarily mean that privilege has been waived. While waiver of solicitor-client privilege can be express or implied, whether privilege has been waived by inadvertent disclosure is a fact-specific inquiry, which may include consideration of the following factors:
The way in which the documents came to be released;
Whether there was a prompt attempt to retrieve the documents after the disclosure was discovered;
The timing of the discovery of the disclosure;
The timing of the application;
The number and nature of the third parties who have become aware of the documents;
Whether maintenance of the privilege will create an actual or perceived unfairness to the opposing party; and
The impact on the fairness, both actual or perceived, of the processes of the court.
101In the case before me, I consider the following:
The way in which the documents came to be released:
102The handwritten notes were provided by Ms. Bojanowska to Dr. Shapiro, along with many other documents.
103Ms. Bojanowska advised the Court orally that she was aware that these had been provided. I considered this, and many other factors, in concluding that Ms. Bojanowska was aware that the materials were being provided. For the purpose of this analysis however, I will assume that the only materials that were intended to be provided to Dr. Shapiro were those listed in the March 1, 2017 letter – the following specifically named materials: transcript of trial of April 16, 2012; transcript of trial of April 17, 2012; Dr. Gojer's reports; Dr. Gojer's evidence; affidavit of Mr. Hartman; affidavit of Heather Childs; affidavit of Marsha Hartman; a USB drive; an assessment report prepared by Dr. Shapiro on August 23, 2013; a copy of a report by Dr. Weinberger.
104Thus, anything else beyond this exhaustive list should be assumed to have not been provided. What then do I make of the fact that Ms. Bojanowska suggested to Dr. Shapiro in examination-in-chief that he reviewed transcripts of the witnesses before the Court of Appeal? How would he have done so if these had not been provided to him? What then do I make of the fact that it was suggested to Dr. Shapiro that he reviewed the report of Dr. Pressman? Am I to presume then that further materials were provided to Dr. Shapiro after March 1, 2017 (but before March 9, 2017 when the report was completed)? Or am I to presume that Dr. Shapiro had access to Dr. Pressman's report in some other way (despite the fact that this was not specifically listed in the March 1, 2017 letter from Ms. Bojanowska)? What do I make of the fact that Dr. Shapiro testified that he had a boxful of materials that he reviewed, and that he would have needed another suitcase to bring everything with him to Court? It would seem that Dr. Shapiro had access to more material than what was listed in his report.
Whether there was a prompt attempt to retrieve the documents after the disclosure was discovered:
105There was no attempt to retrieve the documents listed in Dr. Shapiro's report.
The timing of the discovery of the disclosure:
106Dr. Shapiro is in the middle of cross-examination. The Crown raised this issue in the absence of the witness.
107Setting aside my previous finding that Ms. Bojanowska knew she was sending everything listed in the index to Dr. Shapiro, and assuming again that she did not know this had been done, Ms. Bojanowska certainly would have known that materials had been inadvertently provided to Dr. Shapiro when she received and reviewed this report. As I stated previously, it would be difficult for me to accept that Ms. Bojanowska simply missed the reference to the handwritten notes. If I was to accept the submission of Ms. Bojanowska that only the ten items specifically listed were to have been sent to Dr. Shapiro, then it was not only the handwritten notes that were overlooked.
108Mr. Hartman had the choice of whether to disclose this report, and also whether to call Dr. Shapiro as a witness.
109Mr. Hartman could have sought a ruling on this issue – whether Dr. Shapiro could be cross-examined on the materials provided to him – at the same time I was asked to address whether Mr. Hartman could be cross-examined on them. I was not made aware that the materials had been provided to Dr. Shapiro at the time I was asked to make a ruling on that issue. If I had ruled that Dr. Shapiro could be cross-examined on the handwritten notes (and other materials provided to Dr. Shapiro), Mr. Hartman could have chosen not to call Dr. Shapiro as a witness. This would have been his choice to make.
110Ms. Bojanowska suggested to Dr. Shapiro in examination in chief that he had reviewed materials not listed in her March 1, 2017 letter so it would appear that Ms. Bojanowska had determined that what was provided to Dr. Shapiro was done so appropriately.
111The materials were sent to Dr. Shapiro on March 1, 2017. The report was prepared on March 9, 2017 and provided to Mr. Hartman shortly thereafter. Dr. Shapiro testified on April 19, 2017. Thus, there was only a period of 7 weeks between the date the materials were provided, and the report prepared. This is not a situation where many months, or even years, have passed and counsel could not recall what was specifically sent to the proposed expert witness.
The number and nature of the third parties who have become aware of the documents:
112From the evidence I have heard thus far, it would appear that Dr. Gojer had access to the materials, including the handwritten notes. Dr. Gojer's report has been referred to extensively during this trial. Thus an argument could be made that the litigation privilege had been waived twice over in this case as two doctors have reviewed these materials and provided opinions on the same issue. I acknowledge that the only doctor who has been called as an expert witness is Dr. Shapiro, but I also find that Dr. Shapiro has relied upon, and in fact adopted, parts of Dr. Gojer's report during his testimony.
113It has been unclear to me during the evidence of Dr. Shapiro, what access he had to Dr. Gojer's file beyond Dr. Gojer's actual report and Dr. Gojer's "evidence". There has been evidence that Dr. Shapiro and Dr. Gojer work closely together, and that Dr. Shapiro had been involved in Mr. Hartman's matter back in 2013 along with Dr. Gojer.
114It is unclear whether other doctors, such as Dr. Weinberger, had access to the materials.
115Counsel before the Court of Appeal of course had access to these materials, as disclosure of same was required if Mr. Hartman wished to proceed with his appeal based on ineffective assistance of counsel. Mr. Hartman waived his solicitor and client privilege in those materials with the limited purpose of permitting Ms. Castle-Trudel to respond to his application. An argument could be made, that by also providing those materials to Dr. Gojer, and then calling Dr. Gojer as a witness at the appeal, Mr. Hartman has waived his solicitor and client privilege and litigation privilege at that time. However, that issue is not squarely before me, and is less clear than the one I am dealing with.
Whether maintenance of the privilege will create an actual or perceived unfairness to the opposing party:
116Evidence pertaining to Mr. Hartman's recollection of the night in question may be relevant to the opinion of Dr. Shapiro.
117To prevent the Crown from being able to cross-examine on the handwritten notes would result in both actual and perceived unfairness.
The impact on the fairness, both actual or perceived, of the processes of the court:
118The Court of Appeal did not expand upon what was meant by this factor, but I will re-emphasize what I have addressed earlier about the role of the expert in Court. The expert's evidence is to assist the trier of fact in determining an issue that would otherwise be outside of the knowledge of the Court. As such, the examination in chief and cross-examination of Dr. Shapiro on both his ultimate opinion and also the foundation of that opinion, are important.
119I do not find that to permit cross-examination of Dr. Shapiro on the materials he received and reviewed would result in unduly lengthening the court proceedings, as the credibility and reliability of the opinion offered is an important aspect of the case before me.
CONCLUSION
120In considering all of the factors set out in R. v. Ward, supra, I find that even if the materials had been sent to Dr. Shapiro inadvertently, solicitor and client privilege and litigation privilege were waived when Dr. Shapiro testified in the capacity of an expert witness.
RULING
121Ms. Breault may cross-examine Dr. Shapiro on the handwritten notes created by Mr. Hartman and subsequently provided to Dr. Shapiro for his review.
122Further, and to avoid unnecessary additional applications, I find that that the Crown may cross-examine Dr. Shapiro on all of the materials that are listed on pages 8-9 of Dr. Shapiro's report, provided that they are either relevant to the expert opinion that has been provided to the Court, or that they are relevant to Dr. Shapiro's credibility or objectivity as a witness.
Released: October 24, 2017
Signed: Justice Kimberly E.M. Moore