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 486.5(1) or (2) of the Criminal Code. These subsections 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 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court File and Parties
ONTARIO COURT OF JUSTICE
CITATION: R. v. J.S., 2026 ONCJ 321 DATE: 2026-06-04 COURT FILE No.: Pembroke 998 24 37101145
BETWEEN:
HIS MAJESTY THE KING
— AND —
JS
Ruling Re Production and Disclosure of Notes Made by the Accused
Before: Justice J.R. Richardson Heard on: April 29, 30, 2026 Ruling released on: June 4, 2026
Counsel: Matthew Geigen-Miller, counsel for the Crown Celine Dostaler, counsel for the accused
Reasons for Decision
Introduction
1JS is charged with sexually assaulting RM on September 21, 2024 at the City of Pembroke.
2The trial commenced on Tuesday, April 28, 2026.
3On April 29, 2026, JS commenced testifying in his own defence. His examination-in-chief was completed, and cross-examinations were commenced.
4In the course of cross-examinations, Crown counsel asked JS if he referred to any notes before testifying. He indicated that he had.
5Upon returning from an afternoon recess, we then embarked on a voir dire about production and disclosure of the notes.
6The issue I must decide is whether the notes are protected by litigation privilege or solicitor-client privilege.
7If I find that they are protected by either or both forms of privilege, I must decide whether JS has, by looking at them before testifying, waived his privilege.
Facts
Evidence About the Notes Raised before the Voir Dire
8Crown counsel asked JS if he had ever written down his memories of the incident to help him remember later. JS stated that he did. He also agreed that he read the notes to refresh his memory. JS testified that he "wrote down what happened right after I got a call from Officer Wilson". He agreed that this occurred in early October 2024. JS stated that he handwrote the notes.
9Crown counsel then pursued another line of questioning before returning to the notes.
10At that juncture, we embarked upon the Voir Dire.
Examination-in-Chief
11The only witness on the voir dire was JS.
12JS testified that he made handwritten notes "right after it happened as a brain map."
13After he wrote the notes, he spoke with his "other lawyer". This was a reference to Mr. May, who he had originally spoken with about his case, but he later retained Ms Dostaler.
14JS testified that he wrote the notes on his own. He then "looked through everything" and wrote a detailed description.
15He stated that he went over the notes with Mr. May and then they (he and Mr. May) "created a document".
16Defence counsel asked which of these documents JS used to refresh his memory before testifying. JS did not understand the question and asked counsel what she meant. Defence counsel asked again. JS still did not understand the question. At this point, defence counsel asked"the handwritten notes?". JS replied"Yeah, yeah, that's the notes I wrote down".
17At this juncture, defence asked"Are they still handwritten?" JS replied"No, I took them and I put it all in a document".
18Defence counsel then asked"Do the handwritten notes, the document in your handwriting, does that still exist in that form.?" JS stated"I have that, yeah". Defence counsel asked"Is that what you reviewed?" JS stated"Yeah". Defence counsel asked"The one written in your hand?" JS then stated"That one is typed. Like I typed it all out on a doc just to save it afterwards."
19At this point, I intervened to try to get to the bottom of what JS was referring to. It was clear that JS's responses were completely unfocussed.
20In fairness to him, he was called to testify on the voir dire without having the benefit of having spoken to his counsel. Because he was in cross-examination when this came up, he was bound by the general rule that he could not discuss his evidence with counsel until the cross examination was complete.
21I instructed JS to listen to the question carefully.
22I asked him"At some point you made some notes?" He agreed.
23I then asked"Were those notes made in handwriting or on a computer?" JS stated that initially, he made them in handwriting and then he made them on a computer.
24At this point I asked"So you transformed them on a computer and you may have done that with the assistance of Mr. May?" JS agreed.
25I then asked"The notes that you looked at before you testified today, were they the handwritten notes or the computer notes?" JS stated that he looked at the computer notes.
26At this point defence counsel did not proceed further with examination in chief.
Cross Examination
27Crown counsel asked JS why the handwritten notes do not exist. He stated that he transformed them all in a document so he could save them on his computer. He added that he was not going to save his handwritten notes. He stated that he did this at home.
28He agreed that he had the computer notes, and he looked them over before he testified. He explained that "It was a while ago, I wanted to refresh my memory of exactly what happened."
29Crown counsel then stated"you ended up being charged?" JS stated that he received a phone call from police that he was being charged. He stated that he spoke with Mr. May after he received the call from police. He also agreed that he gave Mr. May and Ms Dostaler a copy of the notes that he typed up on his own.
30Ms Dostaler did not seek to re-examine.
Findings of Fact
31What emerges from JS's evidence is the inference that there are/were possibly three documents in existence:
a) the first which JS prepared on his own, in his own handwriting, after he was contacted by the police and informed by the police that he would be charged. This document no longer exists and JS did not look at it before testifying. It is not necessary to consider this document further;
b) the second, which JS also prepared on his own, on his computer. He prepared this document on his computer so that it would be more convenient to store it electronically. He gave this document to Mr. May, the lawyer he originally consulted. He did not look at this document before testifying. It is not necessary to consider this document further; and
c) the third which JS prepared with Mr. May. This is the document that JS looked at "a while ago" before testifying to refresh his memory. For ease of reference, from this point I refer to this document as "the Refresh Document".
32I confess that in making these findings, I am far from certain that JS ever understood the distinction between these three documents. He was very confused when asked questions. I do not find that he was trying to be evasive. I find that he seemed unable to focus on questions that were asked of him
33I will return to discuss the nature of the privilege attaching to the Refresh Document, once I have reviewed the principles applicable to litigation privilege and solicitor client privilege below.
Crown Argument
34Crown counsel acknowledged that there is a clear inference that JS made his notes in contemplation of litigation. He argued, however, that litigation privilege does not apply. He cited R. v. Sachkiw, 2014 ONCJ 287, and Rosowsky v. Hudye Inc., 2016 ABQB 724, as authority for this proposition.
35Crown counsel further argued that the document did not become protected by solicitor-client by the simple act of JS sharing the document with his lawyer. Crown counsel cited Keefer Laundry Ltd. v. Pellerin Milnor Corp., 2006 BCSC 1180 and Wintercorn v. Global Learning Group, 2022 ONSC 4576 as authority for this proposition.
Defence Argument
36I granted defence counsel the balance of the afternoon and overnight to prepare her arguments. Notwithstanding the usual rule about defence counsel not being able to speak to her client under cross-examination, I also granted defence counsel an opportunity to meet with her client and take further instructions solely about the issues raised in the voir dire overnight. The Crown did not object to this and submitted that this was appropriate.
37Upon resuming on April 30, Ms Dostaler indicated that JS sought counsel "almost immediately" and he spoke with Mr. May. Mr. May helped him to re-write the document. The document was ultimately sent to Ms Dostaler.
38Defence counsel argued that JS did not volunteer in examination-in-chief that he refreshed his memory. This came up during cross-examinations. She argued that the document was written for the express purpose of getting help from a lawyer. Therefore, solicitor-client privilege is clearly engaged.
39Defence counsel further argued that any waiver of solicitor-client privilege must be express. In this case, there is no express waiver.
40Defence counsel cited Mitchell, supra, Blank v. Canada, 2006 SCC 39, R. v. Fast, 2009 BCSC 1671, R. v. Osmond, 2020 ONCJ 654 and R. v. Abeyewardene.
Analysis
41This case raises questions with respect to the existence of two privileges:
a) first, litigation privilege, i.e. the privilege that attaches to documents made in contemplation of or during litigation; and
b) second, solicitor-client privilege, i.e. the privilege that attaches to communications between lawyer and client
42Thes two forms of privilege are now recognized as distinct. That was not always the case. Until recently, they were perceived by some as being "branches on the same tree".
The Principles of Solicitor Client Privilege
43In Smith v. Jones at paragraph 46, Justice Cory described solicitor-client privilege this way:
Clients seeking advice must be able to speak freely to their lawyers secure in the knowledge that what they say will not be divulged without their consent. It cannot be forgotten that the privilege is that of the client, not the lawyer. The privilege is essential if sound legal advice is to be given in every field. It has a deep significance in almost every situation where legal advice is sought whether it be with regard to corporate and commercial transactions, to family relationships, to civil litigation or to criminal charges. Family secrets, company secrets, personal foibles and indiscretions all must on occasion be revealed to the lawyer by the client. Without this privilege clients could never be candid and furnish all the relevant information that must be provided to lawyers if they are to properly advise their clients. It is an element that is both integral and extremely important to the functioning of the legal system. It is because of the fundamental importance of the privilege that the onus properly rests upon those seeking to set aside the privilege to justify taking such a significant step.
44The privilege yields in the following situations:
a) where the innocence of an accused person is at stake;
b) where the communications are in furtherance of a criminal offence;
c) where it is necessary to disclose the communications for the purposes of public safety;
d) where it has been established that the client has waived the privilege, either expressly or impliedly.
45In R. v. McClure, 2001 SCC 14, Justice Major traced the roots of solicitor-client privilege back to the 16th Century. He noted that although it originally developed, and for a long time existed, as a rule of evidence, it has now evolved into a rule of law. Solicitor-client privilege, like informer privilege or spousal privilege, was recognized as a "class privilege", that is, a privilege that "warrants a prima facie presumption of inadmissibility" (at paragraph 28.) The privilege enjoys this rank because communications between a solicitor and client "are essential to the effective operation of the legal system" (at paragraph 31, citing Lamer, C.J.C. in R. v. Gruenke). It is also a principle of fundamental justice, and as such, it borders upon being a right of its own.
46So sacrosanct is solicitor-client privilege that it lasts for the client's life and applies after their death.
The Principles of Litigation Privilege
47In Blank, supra, Justice Fish pointed out that litigation privilege was different from solicitor-client privilege because it is "not directed at, or restricted to, communications between solicitor and client". Rather, he found that it was a broader form of privilege, the object of which "is to ensure the efficacy of the adversarial process", by permitting "parties to litigation, represented or not" to be "left to prepare their contending positions in private without adversarial interference and without fear of premature disclosure." (see paragraph 27 of Blank).
48The following additional principles about the nature of litigation privilege emerged from Blank:
a) Unlike 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 (at paragraph 32).
b) The purpose of litigation privilege is to "create a "zone of privacy" in relation to pending or apprehended litigation." (at paragraph 34).
c) Litigation privilege is not "absolute in scope or permanent in duration" (at paragraph 37).
d) The duration and scope of the litigation privilege is "circumscribed by its underlying purpose."
e) A court may review materials to determine whether litigation privilege continues to exist. (at paragraph 45).
f) There may be materials that are subject to both litigation privilege and solicitor client privilege. Anything that falls within the scope of solicitor client privilege "will remain clearly and forever privileged" (at paragraph 50).
g) To determine whether a document is subject to litigation privilege, the court must decide whether the document was created for the dominant purpose of litigation (at paragraph 60).
49The Supreme Court considered the issue of litigation privilege again in Lizotte v. Aviva, 2016 SCC 53. In Lizotte, the Court reaffirmed the principles expressed ten years earlier in Blank. It also set out the following additional principles:
a) Like solicitor-client privilege, litigation privilege is a class privilege which "exempts the communications and documents that fall within its scope from compulsory disclosure, except where one of the limited exceptions to non-disclosure applies." (at paragraph 4)
b) The privilege "cannot be abrogated by inference and cannot be lifted absent a clear, explicit and unequivocal provision to that effect." (at paragraphs 5, 64)
c) It "gives rise to an immunity from disclosure for documents and communications whose dominant purpose is preparation for litigation." (at paragraph 19). Later in the judgment, the Supreme Court described it as a "presumption of immunity from disclosure once the conditions for its application have been met." (at paragraph 34) and "presumption of inadmissibility for a class of communications, namely those whose dominant purpose is preparation for litigation." (at paragraph 36).
d) Only if one of the exceptions to the privilege arises is the presumption from immunity from disclosure overcome. (at paragraph 37).
e) The exceptions applicable to solicitor-client privilege are also appliable to litigation privilege, including
i) public safety;
ii) innocence of the accused;
iii) criminal communications;
iv) evidence of the claimant party's abuse of process or similar blameworthy conduct.
(at paragraph 41)
f) The list of exceptions is not limited, and others may be identified in the future (at paragraph 42).
g) The privilege can be asserted against anyone. (at paragraph 47)
h) In addition to being a class privilege, litigation privilege "serves an overriding public interest" which is "the secure and effective administration of justice according to law""efficacy of the adversarial process", the maintenance of a "protected area to facilitate investigation and preparation for trial by the adversarial advocate", and the promotion of "access to justice" and "quality of justice" (at paragraph 63).
i) Litigation privilege "does not have the same status" and is "less absolute" as solicitor-client privilege Despite this principle,
i) "[t]he parties' ability to confidently develop strategies knowing that they cannot be compelled to disclose them is essential to the effectiveness of the process."
ii) [L]itigation privilege, like solicitor-client privilege, cannot be abrogated by inference" and "clear, explicit and unequivocal language is required in order to lift it."
(At paragraph 64)
Findings With Respect to the Existence of Litigation Privilege and Solicitor-Client Privilege
50I am satisfied that the evidence before me establishes that the Refresh Document is subject to both solicitor-client privilege and litigation privilege. I make this finding based on the following evidence:
a) JS testified that he changed the handwritten document to a version of the Refresh Document for the purpose of showing it to his lawyer. He testified that the electronic document would be easier to store and retrieve.
b) He stated that he did so after he spoke to his lawyer by telephone.
c) Thus, it is the sort of document that accused persons must be "secure in the knowledge that what they say will not be divulged without their consent." (see Smith v. Jones, supra).
d) It was "essential to the provision of sound legal advice" (Smith v. Jones, quoted supra).
e) It is also a document that was created for the dominant purpose of litigation.
f) It is a document that must enjoy a zone of privacy that is free from disclosure as it was intended to be the cornerstone of the litigation strategy the accused and his counsel would advance.
g) JS added more to this document after speaking with his lawyer.
h) After he changed lawyers, he provided the Refresh Document to his new lawyer.
Has the Privilege Been Waived?
51The issue therefore arises as to whether the accused has waived the privilege that attaches to the document by looking at it before he testified.
52The seminal case with respect to waiver of privilege is Justice McLachlin's (as she then was) decision in S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd.. Justice McLachlin stated at paragraph 6:
Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege: (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus, waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost. Rogers v. Hunter, [1982] 2 W.W.R. 189, 34 B.C.L.R. 206 (S.C.).
53I pause to observe that notwithstanding later developments in the law recognizing solicitor-client privilege and litigation privilege as class privileges, and despite language from the Supreme Court in both cases setting out that a waiver must be clear and unequivocal, and cannot be abrogated by inference (in Lizzotte, the majority referred to this principle twice), implied waiver "where fairness and consistency so require" continues to exist.
54As I will discuss below, this is a trap for unwary accused persons and their counsel and, in my view, the Court must be extremely careful about it.
Notes Made by Accused Persons
55In R. v. Abeyewardene, the accused was charged with murder. After the murder, the accused went to his girlfriend's where he stayed for several days until he was arrested. He made notes after his girlfriend encouraged him to make notes of what took place in order to speak to his lawyer. He then used his notes when he spoke to his lawyer. The accused left the notes on top of his duffle bag and the notes were found by the police when they arrested the accused the next day and executed a search warrant on the apartment. The Crown sought to enter the notes as admissions.
56Relying on Blank, Justice Trafford found that the notes were covered by litigation privilege and were inadmissible. He also made the following findings:
a) Litigation privilege applies to represented and self-represented parties. It applies to persons who intend to retain, but have not yet retained counsel.
b) The privilege ensures privacy in relation to contemplated litigation, whether civil or criminal.
c) The privilege applies to notes prepared to refresh the memory of the writer and to aid in the consultation with and instruction of counsel.
d) The lack of confidentiality implicit from how the notes were stored (in this case on a duffel bag in a closet at his girlfriend's apartment) does not affect the existence of the privilege.
e) The interest in protecting the notes on the basis of litigation privilege is compatible with the right against self-incrimination protected by section 7 of the Charter.
57Abeyewardene is different from the case before me because the Crown was applying to tender the notes into evidence against the accused. The accused had not testified.
Cases Where the Notes are Referred to by the Accused Prior to Trial
58An early case dealing with this issue is R. v. Parker, [1985] OJ 175 (C.A.). In this case the trial judge found that the accused created notes for the twin purposes of assisting his counsel and refreshing his memory prior to trial. The trial judge ruled that when the accused used the notes for the purpose of refreshing his memory the privilege was lost. The case was challenged by way of certiorari before the trial judge completed the trial. Trainor, J. found that the trial should proceed. On appeal, Grange, J.A. agreed but noted at paragraph 5 that:
I entertain the gravest doubts as to the correctness of the trial Judge's order. The solicitor/client privilege on all communications should be respected and preserved by the courts; this is particularly so when the client is an accused person giving evidence at his own trial.
59Kovacs, J. cited Parker with approval in R. v. Ticharelli, [1990] OJ 2235 (Dist. Ct.). The issue in Ticharelli, however, was notes used by a third-party witness, not an accused witness.
60In R. v. Nesbitt, [2007] OJ 5045 (SCJ), Little J. was sitting on summary conviction appeal by the Crown. One of the issues was whether the trial judge erred in finding that the accused did not waive solicitor-client privilege over his lawyer's notes when he reviewed the notes prior to testifying at trial. Citing Ticharelli, Little, J. took little time to conclude that the notes were privileged, and the privilege was not lost by the accused refreshing his memory with them. He stated at paragraph 4: "I do not think it matters whether the client or counsel made the notes. There was no conscious express waiver and the notes remain privileged."
61This was also the issue in R. v. Fast, 2009 BCSC 1671. In this case, the accused was charged with "Over 80". The accused made notes on the night of his arrest. He looked at the notes before testifying and used them to refresh his memory as to exact dates and times. He stated he had an independent recollection of everything else. The Crown brought a motion for production which the trial judge granted. The trial judge ultimately convicted. Defence appealed.
62As in the case before me, there was some ambiguity about the degree to which the accused refreshed his memory with his notes. Brown, J. found at paragraph 24:
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. [Underlining Brown, J.'s]
63An important preliminary finding in Fast was that the trial judge should have decided this important issue before determining whether to exercise his discretion to order disclosure. This finding largely resulted in the case being sent back for a new trial. As Brown, J. noted at paragraph 29:
Earlier I referred to the absence of evidence at trial on the circumstances surrounding the making of the refresh document. 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. The appellant testified that he created the refresh document so that he would have a record of what happened the night of his arrest. Some unspecified time later, defence counsel received the document. At trial, the appellant's counsel submitted that the privilege protected the document: counsel seemed to argue that the refresh document was protected both under litigation privilege and under solicitor-client privilege. Regardless, the evidentiary record is too vague to confidently conclude for what purpose(s) the appellant created the notes. [Underlining Brown, J's]
64Brown, J. ruled that these factual findings had to be made so that the Court could clearly rule on the nature of the privilege, if any, that attached to the document.
65This problem was compounded by the fact that the trial judge did not make "any discernible findings on the nature of the privilege protecting the document" (at paragraph 35) which was another significant error that mandated a new trial.
66Only when those questions are determined can the Court go on to consider whether by refreshing his memory with the document, the privilege attached to it is waived. As Brown, J. summed up at paragraphs 36 and 37:
As discussed above and further below, where the judge finds that the witness has refreshed their memory with the use of a document that is not privileged, the document is producible to the opposing party, in this case the Crown, so they can cross-examine in order to test the credibility and reliability of the witness's memory.
Once the trial judge finds that the refresh document is privileged, he or she must next decide whether the witness waived that privilege by refreshing. Whereas the party claiming privilege bears the onus of proving the privilege, the party seeking production bears the onus of proving waiver of that privilege: Chan. (In most cases, the court would canvass the claim-of-waiver challenge in the same voir dire as the claim-of-privilege voir dire.)
67Justice Brown then reviewed the caselaw as it related to the waiver of privilege. Before doing so, he noted that "...judges should consider civil law cases on privilege with caution when applying the principles to a criminal case" (at paragraph 38). He then made the following findings about waiver:
a) waiver can be voluntary, implied or inadvertent (paragraph 39);
b) a witness voluntarily waives privilege when they do so deliberately and knowingly; (paragraph 40)
c) nonetheless, waiver can be implied where fairness demands it. It is incumbent upon the opposite party to satisfy the court that fairness requires disclosure (paragraph 41);
d) implied waiver requires "some manifestation of the client's intention to waive the privilege, at least to a limited extent. The law then says that in fairness it must be entirely waived" (paragraph 42), citing S. & K. Processors Ltd., supra;
e) "a mere glance" at the notes is insufficient to constitute waiver (at paragraph 44);
f) the principle supporting implied waiver is that it would be unfair to allow a witness to bolster their credibility by using a document and then refuse to disclose it on the basis of privilege (paragraph 46), citing Copeland v. Fry, [2002] OJ 1356 (S.C.J).
g) in a criminal trial, where a Crown witness refreshes their memory from a privileged document, the document must be disclosed to defence counsel and can be used to test the witness in cross-examination (at paragraph 49);
h) with respect to the applicability of Parker, Ticharelli and Nesbitt, Brown J. found that:
"the underlying reasoning for their conclusions is varied and too undeveloped to rely on them as the basis for an evidentiary rule that an accused does not waive privilege based on a refresh. They do not address the different ways that waiver should apply to documents protected by solicitor-client versus litigation privilege and Nesbitt incorrectly suggests that an accused can waive privilege only voluntarily."
(at paragraph 53)
i) Accused witnesses have been found to have implicitly waived privilege"in certain rare situations" by putting legal advice they have received in issue, relying on a privileged report in advancing a defence, or testifying about privileged communications in direct examination (at paragraph 54, citations omitted).
The "common rationale" from these cases is that: an accused cannot put privileged communications in issue and then attempt to prevent their disclosure by claiming that the communications are privileged. By relying on the privileged communications in some way, the accused has demonstrated an intention to waive that privilege to some extent. Trial fairness and disposition of the matter on its merits then entitle the opposing party to see the privileged document or communications the witness has put in issue in order to assess the validity of the witness's reliance on it through cross-examination.
(at paragraph 55).
j) a witness cannot be manoevered by opposing counsel into referring to a privileged document under cross-examination (at paragraph 56 and 57);
k) trials unfold quickly and unpredictably. A witness is unlikely to be unaware of their right to claim privilege and even counsel can be caught off guard if it comes up unexpectedly. Trial fairness, therefore, becomes an important evaluative principle when deciding whether an unintended waiver has occurred (at paragraph 58)
l) therefore, the question of whether an accused has waived privilege is a matter of the discretion of the trial judge, to be exercised on a principled basis (at paragraph 59) which is preferable to a "fixed rule" (at paragraph 60.)
m) a principled basis is preferable to a "fixed rule" because "rigidity could lead to unfair trial and result in a greater harm to the justice system" (at paragraph 61).
n) trial judges should engage in a probative value versus prejudicial effect analysis as a "starting point" for the exercise of discretion (at paragraph 62)
o) To this end, the document should be produced to the trial judge and the trial judge can redact portions that are too prejudicial (also at paragraph 62)
p) The weight of this analysis is less when the document under consideration has engaged litigation privilege as opposed to solicitor-client privilege (also at paragraph 63).
68Justice Brown made the following additional observations about the use that may be made of the document if the privilege is found by the Court to be waived:
a) Where the document is "present memory revived" as opposed to "past recollection recorded", the refresh document is not evidence, except to the extent that it needs to be identified, and is "only an examination tool that may assist the judge in making findings of fact on the credibility of the witness." Admission for a broader purpose "runs against the principle of trial fairness." (at paragraph 71);
b) The use of silence in the document on a particular issue is also a "clear misuse of the document and inhibits a fair trial on the merits" (at paragraph 72)
69In R. v. Sachkiw, 2014 ONCJ 287 the accused was charged with Failing or Refusing to Provide a Sample into a roadside screening device. He first testified that he made notes the day after the incident. He later reviewed the notes with his counsel and he reviewed them the night before he testified in Court to refresh his memory. The Crown then sought production of the notes for further cross-examination. Counsel for the accused raised Litigation Privilege. The Court then embarked on a voir dire to determine if Litigation Privilege applied.
70Like the case before me, the accused appears to have been far from clear about when he created the notes. Despite initially testifying that he made them the day after the incident on the advice of his father, on the voir dire, he also testified that he made the notes two days later, after speaking with his counsel.
71There was another important factual detail in Sachkiw, that is not present in the case before me. In Sachkiw, the accused testified that the notes specifically assisted him with his recollection that he made three attempts to provide a sample.
72I pause here to note that in the case before me, the issue of the notes developed more generally in the course of the cross-examination of the accused and were not raised to support the accused's version of events with respect to any specific issue.
73Justice Dawson found that the accused waived his litigation privilege on the notes when he referred them before testifying for the following reasons:
a) 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." (paragraph 60, citing R. v. Mugford, [1990] N.J. No. 210 (NFLD. S.C. – C.A.) and R. v. Monfils and four others, [1971] O.J. No. 1725 (C.A.))
b) The assertion of having refreshed their memory from their notes is "an implied waiver of litigation privilege" (also at paragraph 60). At paragraph 61, Justice Dawson also cited R. v. Stone as an analogous situation (Stone involved the disclosure of expert witness notes referred to in an opening to a Jury).
c) The issue of the notes may go to the reliability of the witness. Opposing counsel is entitled to the notes to test that reliability: (also at paragraph 60).
d) This rule applies regardless of whether the witness is an accused person. This is so because the reliability of the accused person's evidence "is also in play" and opposing counsel is entitled to "have the opportunity to test the memory of events and expose inaccuracies in memory." (at paragraph 62)
e) An acknowledgement by the witness that he looked at the notes he made "prior to trial" is not "sufficient to meet the evidential burden on the Crown that there was a waiver of privilege. The Crown must establish that aside from looking at the notes, the notes were used to refresh memory." Justice Dawson noted that the accused made the notes to refresh his memory because "he wanted as much detail as possible to give evidence to the Court. He also agreed that he would not have the same degree or detail or certainty without the notes and that is why he made them." Justice Dawson noted that the accused's reference to his notes was more than "an insignificant glance". This was sufficient evidence to meet the evidential burden on the Crown (at paragraph 64).
f) Citing R v. Fast, supra"where a witness refreshes, a claim of privilege over the refresh document is deemed waived based on the governing principle of trial fairness".
74Justice Dawson noted the factual distinction between the facts in Sachkiw and Abeyewardene and concluded at paragraph 31 that Abeyewardene "is of limited utility in the matter before this court, although helpful on the nature and purpose of the privilege."
75One of the cases Justice Dawson relied on for her findings was R. v. Dunn, 2012 ONSC 2748. Dunn dealt with fraud allegations in relation to Nortel. The witnesses were lawyers of the accused who took notes of meetings of the audit committee where the accused were present. The case is interesting because it is about the overlap between solicitor-client privilege and litigation privilege. Justice Morocco found that the notes were originally protected by litigation privilege. They were also subject to solicitor-client privilege.
76The problem then arose as to whether the lawyers should review their notes prior to testifying. Justice Morocco noted, citing Fast that, if they did, the notes would become disclosable to the Crown, which would result in the loss of solicitor-client privilege – a privilege that is owned by the client and not by the lawyer. Justice Morocco ultimately decided to order the lawyers to read their notes, but also found that the Crown would not be entitled to copies for the purposes of cross-examinations.
77Justice Dawson found that one of the implicit findings in Dunn is that once a witness refers to notes protected by litigation privilege, the privilege is lost.
78What makes Sachkiw so unique is that it is one of the few cases where this principle extends to the accused as a witness.
Post-Sachkiw Cases
79The British Columbia Court of Appeal agreed with the underlying premises of Sachkiw in R. v. Mitchell, 2018 BCCA 52. In that case, a defence witness testified that he gave an "oral statement" to counsel for the accused. Counsel made notes of the oral statement which the witness looked at before trial. The Crown sought production of the notes. The Court noted that Sachkiw relied upon Fast but did not comment on whether Fast was applicable. In fact, the Court left "for another time" whether Sachkiw was correct with respect to witnesses who are accused (see paragraph 72 of Mitchell).
80In R. v. L.G., [2019] OJ 1995 (SCJ), the accused, a physician, was charged with sexually assaulting his patient. The trial took place nine years after the alleged incident. The Crown sought production of the complainant's patient file while the accused was in cross-examination. He stated that he made a note in her file which he reviewed between ten days and two weeks before he testified. He testified that he did not recall what was in the note. His counsel resisted production of the file. Citing Sachkiw and Fast, Justice Bielby found that the note was a business record and therefore not privileged and ordered disclosure.
81This case is easily distinguished from the case before me on the basis that the note was a business record that did not enjoy litigation privilege or solicitor-client privilege.
82In R. v. Osmond, 2020 ONCJ 654, the accused was charged with assault causing bodily harm in relation to a child that was in his care. He alleged that the child's foster mother committed the offence, not he. The foster mother made some notes about the incident the night before she spoke to her family lawyer. Most of the information in the notes later became the foundation of an affidavit that was filed in Family Court.
83A few days before the accused's trial, during a preparation meeting with the Crown, the foster mother disclosed the existence of the notes and asked if she was permitted to look at them to refresh her memory before testifying. The Crown disclosed the conversation to the defence, who sought production of the notes. The Crown refused, on the basis that it was not in possession of the notes. Defence asked the foster mother for the notes and she asserted privilege. Defence asserted Sachkiw applied. Citing Blank and Fast, Justice Greene, stated at paragraphs 8 through 12:
Respectfully, 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….
Litigation 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.
In 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.
In 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.
[caselaw quotations and references largely omitted by me]
84Her Honour then applied the probative value versus prejudicial effect analysis and concluded as follows at paragraph 15:
When 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. Fifth, 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.
85Justice Molloy of the Superior Court of Justice agreed with Sachkiw in R. v. Minassian, 2020 ONSC 7130. The accused was charged with ten counts of first degree murder and 16 counts of attempted murder as a result of the van attack on Yonge Street in Toronto in 2018. The accused pleaded that he was not criminally responsible. At issue were recordings of interviews of the accused and his family which were used by defence psychiatrists as the foundation for their report as to his criminal responsibility. Justice Malloy ruled that the recordings were subjected to litigation privilege but the privilege would be waived if the psychiatrists were called to testify.
86Defence sought to avoid production, and if the recordings were ordered produced, defence counsel asked Justice Molloy to find that the recordings could only be used to cross-examine the psychiatrists. Justice Molloy found at paragraph 21:
That is not a tenable position. Once litigation privilege has been waived and the Crown has the recordings, the Crown is at liberty to use them for whatever purposes are appropriate in the conduct of the trial. Clearly, the Crown is not at liberty to simply divulge the tapes to anyone other than the police or its own witnesses. Further, how the recordings are used at trial will be subject to my discretion. However, it would not be proper to restrict the Crown from using the recordings for any purpose appropriately connected to this trial. For example, if Mr. Minassian chose to testify in this case, the Crown would be entitled to cross‑examine him on any inconsistencies between his evidence at trial and what he said in the Yale Group interviews.
87I note that in the ensuing trial, the recordings in question ultimately played a significant role in Justice Molloy's findings that the accused was not entitled to the verdict that he was Not Criminally Responsible and her findings of guilt: see R. v. Minassian, 2021 ONSC 1258.1
88The Nova Scotia Court of Appeal has also agreed with the underlying premise of Sachkiw: see R. v. Pearce; R. v. Howe, 2021 NSCA 37. Pierce and Howe, however, involved the cross-examination of a Crown witness by defence counsel who was using a statement the witness gave to a private investigator hired by defence. The Court found that the Crown was entitled to the entire document on the basis of trial fairness. Unlike Sachkiw and the case before me, Pearce and Howe did not involve an accused witness.
89I looked at this issue briefly in R. v. Desjardins 2023 ONCJ 244. In that case, the Crown asked to see defence counsel's notes in relation to a third-party witness. The third-party witness had not reviewed defence counsel's notes prior to testifying at trial. Citing Sachkiw, I ruled that the Crown was not entitled to disclosure of the notes before completing their cross-examination because defence counsel's notes were litigation privileged. I would have found differently if the witness had testified that she had reviewed the notes.
90The most recent case considering this issue is R. v. Clement, 2023 MBPC 74. In that case, the accused testified in direct-examination that he had refreshed his memory with notes he made at the time of the event. Defence counsel asked the accused"Your memory is as if it happened yesterday? How is it that you are able to provide this much detail" (see paragraph 6). Judge Allen found that these questions put to the accused by defence counsel with respect to his memory constituted an invitation to the Court to find the that the accused "has a very thorough and exact recollection of the events in question."
91His Honour then adopted the approach of Justice Dawson in Sachkiw, Justice Brown in Fast, and the British Columbia Court of Appeal in Mitchell and stated at paragraphs 9 and 10:
…in my opinion the accused has put this issue before the Court, and this was in response to a specific question from defence counsel. I think it is arguable and not a question that I'll determine today, but I think it is arguable that if a lawyer asks a client to prepare a document for the lawyer's purposes in understanding the intricacies of an event and what happened, and then that document is prepared and provided to the lawyer, an argument could be made that that is protected by solicitor-client privilege. However, if that is the case, in my opinion, the privilege is provided to that document as long as it is used in that manner for the purposes of the lawyer. Once that document is then used as proximate to trial as the night before by the accused person to refresh their memory and in effect, bolster by refreshment their testimony, it seems to me that becomes something else rather than a solicitor-client document. In any event, if there is any solid case law in this, it is that once it has been put to the Court in the manner consistent with paragraph 55 of Fast, whatever privilege, whether it is solicitor-client or litigation privilege, is waived. I agree with that.
As it appears that the defence will be arguing that the accused's memory is clear and that this bolsters his credibility, in my opinion, this puts the issue of notes and refreshment before the court and entitles the Crown to see those notes. In effect, by doing so the defence has waived whatever protection that document would otherwise have been entitled to.
92In summary, the law is reasonably well developed that there is a general principle that where a witness looks at notes they made prior to testifying in order to refresh their memory, litigation privilege attaching to the notes is lost. The notes are produceable to the opposing party who may cross-examine the witness on their notes. This is said to be a rule of fairness.
93The law is less developed with respect to notes made where solicitor-client privilege is attached and where the witness in question is the accused. Where the notes go to the heart of an issue before the Court, or the Court will be invited to base findings of reliability and credibility of the accused on the basis that the accused made notes and the content of the notes, the privilege is waived, the notes are producible to opposing counsel and the accused may be cross-examined on the notes.
94Where, on the other hand, a witness, including an accused witness, has not looked at the notes, or only given them a mere glance, the privilege remains intact and the notes are not produceable.
95To assist in making a determination, the Court is at liberty to seek production of the notes to the Court for the purpose of vetting them.
96The Court should also consider weighing the probative value of the notes with the prejudice to the accused by the piercing of the privilege, production and cross-examination.
Findings with Respect to Waiver of the Privilege
97These principles assist me in deciding that it has not been established that JS has waived the privilege attaching to the Refresh Document for the following reasons:
a) The Refresh Document came up in cross-examination, not in examination-in-chief. I must heed the warning in the caselaw to be wary of attempts to manoeuver the accused into disclosing and discussing information subject to a class privilege(s). As I stated above, this is a potential trap for the unwary. It flies in the face of a long line of cases about the need for clear and unequivocal waiver of privilege.
b) The Refresh Document came up more in relation to general cross-examination, rather than cross-examination with respect to a specific point or issue. This is not a case like Fast, Sachkiw or Clement where the Refresh Document deals with a live issue before the Court (in all three of those cases, the issue pertained to important factual specifics in an impaired driving case). Nor is it a case like Minassian where the witness is being asked to give an opinion on criminal responsibility based on interviews of the accused which were recorded. I find that this is not a case where "fairness and consistency" demands production of the notes and presumably, use of them in cross-examination.
c) The general theme of JS's evidence thus far in the trial is lack of clarity and detail. JS does not offer the Refresh Document as an aide memoire which assists with overcoming these shortcomings.
d) JS testified that he had a look at the Refresh Document "a while ago" before trial. This, in tandem with his lack of clarity and detail make it clear that if he gave the Refresh Document more than a "mere glance", it was not much more than a mere glance, or the Refresh Document did not assist him with any specifics.
e) With respect to the litigation privilege, although less absolute than solicitor-client privilege, ordering production of the Refresh Document would undermine the value of permitting an individual a zone of privacy with respect to formulation of their defence. This should not be done lightly.
f) I agree with Justice Greene's comments in Osmond with respect to the "more robust" nature of the solicitor-client privilege that attaches to the Refresh Document. Ordering production would undermine these values.
g) JS is an accused, not merely a witness. Implied waiver in these circumstances always raises the possibility of inadvertent self-crimination. Accused persons have a right against self-crimination protected in no less than three sections of the Charter: section 7, section 11(c) and section 13. Ordering production would undermine these values.
98I considered ordering production of the Refresh Document to the Court for inspection and vetting. On the facts of this case, I find that this is unnecessary. If there was some suggestion that the Refresh Document somehow bolstered the credibility and reliability of JS's evidence with respect to specific facts and issues, I may well have resorted to Production to the Court.
99For all of these reasons, I find that the document is protected by Litigation Privilege and Solicitor-Client Privilege. On balance, I find that the potential probative value of the Refresh Document does not overcome the potential prejudice to JS by production of the documents and use in cross-examination.
Released: June 4, 2026
Signed: Justice J.R. Richardson