Court Information
Ontario Court of Justice
Between: Her Majesty the Queen — and — Justin Osmond
Before: Justice Mara Greene
Reasons for Judgment released on: Monday, November 16, 2020
Counsel
E. Evans for the Crown
B. Funston for Mr. Osmond
Ms. Laurie for H.N.
Judgment
Greene, J:
Introduction
1Justin Osmond (A.K.A. Biggar), is charged with assault causing bodily harm. It is alleged that in August 2019 he assaulted A.N., a child that was in his care. Mr. Osmond denies assaulting A.N. and instead, I am advised, alleges that H.N., the child's foster mother, assaulted the victim. Mr. Osmond seeks production of notes H.N. made a few days after the assault.
Relevant Factual Background
2In early to mid-August 2019, A.N. suffered injuries to her face. A.N.'s foster father testified at trial that he and H.N. noticed the injuries a short time after her return from visiting with Mr. Osmond. According to A.N.'s foster father, after some hesitation A.N. advised that Mr. Osmond assaulted her. The next day, the foster parents attempted to contact their family lawyer. The lawyer was not available for a few days. The night before seeing the family lawyer and at the request of her lawyer H.N. made some notes about the alleged event and emailed these notes to her lawyer. These notes were the starting point of future discussions between H.N. and her lawyer. I was advised that most of the information included in this email made its way into an affidavit that H.N. filed with the family court in support of her application for custody of A.N. This affidavit has been disclosed to defence counsel.
3No one knew about this email to H.N.'s lawyer until a few days before the first day of trial. During a witness preparation meeting between H.N., the crown and the officer in charge, H.N. advised that she had made notes about what occurred. I was advised that she asked if she was permitted to refresh her memory from these notes. There was no suggestion in the interview that H.N. did not recall the events well and needed to refresh her memory. She was merely asking if she was permitted to use the notes.
4Crown counsel disclosed this conversation to counsel for Mr. Osmond. Counsel for Mr. Osmond then requested disclosure of these notes. Crown counsel refused as they were not in possession of the Crown. Crown counsel did ask H.N. if she would voluntarily provide these notes to counsel. It was at this point that H.N. asserted solicitor-client privilege over these notes. In response to this application, it was revealed that H.N. produced the email at the request of her family lawyer in order that her family lawyer could properly advise her on next steps.
5Counsel for Mr. Osmond does not dispute that the notes are protected by solicitor-client privilege. He argued, however, that when H.N. sought to refresh her memory from these notes, she waived solicitor-client privilege.
Analysis
6The party asserting privilege has the burden of establishing the privilege. In the case at bar, counsel for Mr. Osmond has conceded that H.N. has met her burden and established that the notes she wrote in preparation of obtaining legal advice from her family lawyer are protected by solicitor-client privilege. His argument for production of these records is based on waiver. As such, Mr. Osmond bears the burden of establishing waiver of the privilege (R. v. Fast, 2009 BCSC 1671, at paragraph 37).
7Counsel for Mr. Osmond did not argue that H.N. expressly waived privilege. Instead, he argued that by using her notes to refresh her memory prior to trial, H.N., through her conduct, waived her privilege. In support of his argument, counsel for Mr. Osmond relied heavily on the case of R. v. Sachkiv, [2014] O.J. No. 2910 (OCJ). In Sachkiv, the defendant, prior to testifying used notes he had prepared shortly after his arrest to refresh his memory. Crown counsel then sought production of these notes. In ruling that the notes must be produced the court held that even though the notes were protected by litigation privilege, the privilege was waived when Mr. Sachkiv put them in issue by refreshing his memory from them prior to trial. Counsel for Osmond argued the same approach should apply to notes protected by solicitor-client privilege.
8Respectfully, I disagree. There are fundamental differences between solicitor-client privilege and litigation privilege that support a different approach to assessing whether there has been an implied waiver. One key difference is the purpose behind the privilege. The purpose of solicitor-client privilege is to ensure full, free and frank communications between clients who need advice and the lawyers that can provide it. Confidentiality is the core of this privilege. This was expressed by the Supreme Court of Canada in Blank v. Canada (Minister of Justice), 2006 SCC 39, at paragraph 26:
[26] 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.
9Litigation privilege, on the other hand, is not based on a confidential relationship between client and solicitor but instead it is meant to facilitate the litigation process. Moreover, litigation privilege, unlike solicitor-client privilege is not absolute and ends when the litigation ends. Solicitor-client privilege, however, does not end when litigation ends and even survives death of the client.
10Fish J. in Blank v. Canada (Minister of Justice), supra, provided a helpful explanation of the differences and similarities between solicitor-client privilege and litigation at paragraphs 31 to 33. Fish J. stated:
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 or 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.
11In light of these key differences, the solicitor-client privilege is considered to be more robust than litigation privilege and is afforded greater protection. It only follows that the test for waiver of solicitor-client privilege is more stringent (See R. v. Fast at para 34). Free, full and frank discussions, which are the cornerstone of solicitor-client privilege, are less likely to occur if the test for implied waiver is set too low.
12In my view, the approach taken by Brown J. in R. v. Fast, supra, is the correct approach to determining whether there has been an implied waiver of solicitor-client privilege. In Fast, the court was tasked with determining whether the defendant had waived solicitor-client privilege when he refreshed his memory from notes he had written. In that case, the court recognized that an accused witness's conduct could lead to a finding of waiver of the privilege where "fairness" demands it (see R. v. Fast, supra at paragraph 40). After an extensive review of the case law, Brown J. held that there should be no hard and fast rule about whether the act of an accused witness refreshing his/her memory from a prior statement would lead to a waiver of solicitor-client privilege. Instead Brown J. favoured a flexible approach that allows the trial judge to weigh the probative value of ordering production of the document with the prejudicial effect of interfering with solicitor-client privilege. Brown J. stated at paragraphs 61 and 62:
[61] The facts and circumstances that come forward in criminal cases are unpredictable and varied. I see the flexibility of trial judges exercising their discretion on a principled basis as preferable to a firm rule, with it imposing the same answer in every circumstance. Such rigidity conceivably could lead to an unfair trial in a particular case, and result in greater harm to the justice system than would be the case if the judge were to allow a breach of the privilege. Ultimately, if a trial judge errs, correction is possible. A fixed evidentiary rule would offer certainty, but no reasons to justify the result.
[62] A classic "probative value versus prejudicial effect" analysis that encompasses giving full weight to the special status of solicitor-client privilege provides a good foundation and starting point for the exercise of the judge's discretion. When considering prejudice to the accused, the trial judge should consider what portions of the document to redact in order to minimize prejudice to the accused, and then complete the probative value versus prejudice effect analysis based on the redacted document. If after undertaking such an analysis the trial judge finds that the probative value of a cross-examination on the refresh document outweighs the prejudice to the accused, the judge should then stand back and weigh into the final analysis the protected status of solicitor-client privilege. That is, the judge should determine whether the probative value of a cross-examination has overcome the important policy objective of protecting the status of solicitor-client status or whether trial fairness and a disposition on the merits is more compelling in the circumstances than the damage that would occur from permitting a breach of solicitor-client privilege.
13I am mindful that there is a significant difference between the facts and the issues raised in R. v. Fast, supra, and the present case. In particular, in Fast, it was the accused's notes that were in issue as opposed to a Crown witness's notes. The issues around making full answer and defence are different when it involves a Crown witness. In my view, this difference, however, can be taken into account when balancing the competing interests. The approach in Fast is flexible enough to accommodate this difference.
14In the case at bar, in assessing whether the probative value of producing this document and allowing cross-examination on it I rely on the following facts:
a) H.N. wrote notes in an email to her lawyer about the event. This was to be used as a basis for a more detailed interview the next day with the lawyer so that H.N. could receive effective legal advice.
b) H.N.'s family lawyer produced a lengthy affidavit, subsequently sworn by H.N. and filed with the family court that included the contents of these notes as well as more detailed information. The affidavit has been disclosed to the defence.
c) There is no evidence that H.N. in fact refreshed her memory from the email she sent to her lawyer. While not in the material filed with the court, I was advised that H.N. asked about refreshing her memory from this document. At present time, there is no evidence that she did in fact do so.
d) The emails from Crown counsel to defence counsel merely state that H.N. advised that she made notes with respect to this event in particular about dates and times and that these notes were made after H.N.'s first statement to the police. The notes were made on August 18, 2019.
e) H.N. made two statements to the police. One on August 13, 2019 and one on September 30, 2019. Both have been disclosed to the defence.
f) The main issue at trial as it relates to H.N. is credibility as opposed to reliability. Defence counsel advised me that it is the position of the defence that H.N. was the person that caused the injuries to A.N. as opposed to Mr. Osmond.
g) Defence counsel concedes that the notes do not rise to the level of meeting the innocence at stake exception.
h) The notes are subject to solicitor-client privilege.
i) H.N. at no point intentionally chose to waive the privilege.
j) Mr. Osmond has a constitutional right to make full answer and defence. This includes full disclosure of all relevant material.
15When I consider all the above factors, it is my view that at the present time the balance weighs significantly in favour of preserving the solicitor-client privilege. I reach this conclusion for a number of reasons. Firstly, there is no evidence that H.N. actually refreshed her memory from the notes in question. Secondly, the fact that she asked whether she could look at them suggests that she was seeking permission and information about whether it was appropriate to do so. Thirdly, there is no evidence that H.N. lacks a detailed memory of the event such that she would need to refresh her memory from these notes. Fourthly, the issues around H.N. will relate to her credibility not reliability. The defence take the position that she is the perpetrator. The logical implication is that defence will focus on her credibility. As such, cross-examination on her review of the notes will not be for the purpose of determining the extent to which H.N. recalls the events but to identify inconsistencies for impeachment purposes. Fourthly, the notes were made after H.N.'s first statement to police and before her second statement to police. An examination of the two statements will identify any change in her memory or change in version as it relates to the alleged offence. Counsel also has the lengthy affidavit sworn by H.N. in support of the family proceeding. In other words, counsel effectively has three prior statements which can be used to cross-examine H.N. Finally, the affidavit by H.N. filed in support of these proceedings states that the note she wrote for her lawyer relates to dates and times as opposed to fine details of the event. All these factors suggest that ordering the production of these notes will be of nominal probative value to Mr. Osmond's ability to make full answer and defence. On the flip side, ordering the production of this document, which was prepared in confidence for her lawyer for the purpose of obtaining legal advice, would undermine the values associated with protecting confidentiality between clients and their lawyers. The prejudicial effect of ordering production is significant.
16I agree with counsel for Mr. Osmond that the right to make full answer and defence includes the right to know the case Mr. Osmond has to meet. I also agree that there will be times where the conduct of a witness will result in the waiver of solicitor-client privilege. Given the very low probative value of those notes in the case at bar, however, in my view, the balance lies in favour of retaining the privilege. Therefore, Mr. Osmond's application for production of H.N.'s notes is dismissed.
17It may be that during cross-examination additional information will come to light that may be relevant to this analysis. I note that at this stage, counsel has not been afforded the opportunity to cross-examine H.N. on her present recollection of the events or whether she needs to refresh her memory from the notes in order to properly remember the events. If new and relevant information arises during cross-examination, counsel can re-apply for production of the notes.
Released November 16, 2020
Justice Mara Greene
