Canadian Criminal Evidence/Privilege

Introduction Privilege protects certain information from being revealed by a witness on the stand. Solicitor Client Privilege Solicitor-client privilege is a class privilege and are presumed inadmissible.R v McClure, 2001 SCC 14, [2001] 1 SCR 445 This privilege is the "highest privilege recognized by the courts" which is "fundamental to the administration of justice"Smith v Jones 1999 CanLII 674 (SCC), [1999] 1 SCR 455, at para 44 and 50 Violation of this privilege can "erode the public's confidence in fairness of the criminal justice system."Lavallee, Rackel & Heintz v Canada (AG) 2002 SCC 61 (CanLII), [2002] 3 SCR 209 at para 49 As accused persons must have confidential access to advice to make properly informed decisions. The privilege exists where a written or oral communication is :R v Campbell, 1999 CanLII 676, [1999] 1 SCR 565 at para 49 [also referred to as R v Shirose] Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821 at p. 835 made in confidence or be of a confidential in nature; made to a professional legal advisor; for the purpose of giving and receiving legal advice. This privilege applies not only between a lawyer and their retained client, but can also apply between a Crown attorney and a police officer seeking legal advice.R. v. Caines, 2011 ABQB 660 Statements taken by an investigator on behalf of the defence is privileged and cannot be subject of disclosure to the crown.R. v. Peruta; R v Brouillette (1992) 78 CCC (3d) 350 1992 CanLII 3597 (QCCA) The following have been considered privileged information: Emails between counsel and clientsR. v. 1496956 Ontario Inc. (Stoneridge Inc.), 2009 CanLII 12328 (ON SC) at para 12 conversations between counsel and client in the courtroom even if caught on recording device.R. v. Higham, 2007 CanLII 20103 (ON SC) at para. 21 to 22 phone wiretap between counsel and client R. v. Martin, 2010 NBCA 41 (CanLII) at para. 64-65 identity of person paying legal feesKaiser (Re), 2012 ONCA 838 (CanLII) at para. 44 to 45 lawyer bills and statement of accounts regarding clientsMaranda v. Richer, 2003 SCC 67 (CanLII), [2003] 3 SCR 193 at paras 21-34 2 Exemptions from Solicitor-Client Privilege There are three occasions when solicitor‑client privilege may be overruled, namely when innocence at stake is engaged, the client's communications are themselves criminal, or it is necessary to protect public safety.Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 45 2 Innocence at Stake The threshold test for innocence at stake exemption from privilege was set out in R v McClure 2001 SCC 445 and summarized in R. v. Brown, 2002 SCC 32 as a two-step process. The accused must establish that: the information he seeks from the solicitor-client communication is not available from any other source; and he is otherwise unable to raise a reasonable doubt. If the threshold has been satisfied, the judge should proceed to the innocence at stake test, which has two stages. Stage #1: The accused seeking production of the solicitor-client communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt. Stage #2: If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused. It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) is stricter than that in the first stage (could raise a reasonable doubt). If the innocence at stake test is satisfied, the judge should order disclosure of the communications that are likely to raise a reasonable doubt, in accordance with the guiding principles discussed. 2 Litigation Privilege The purpose of litigation privilege is to create a "zone of privacy" around documents that were made in "relation to pending or apprehended litigation".Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319, at para. 34 Litigation privilege protects documents that were should be created in the following circumstances:Kennedy v. McKenzie, [2005] O.J. No 2060 (S.C.), 2005 CanLII 18295 (ON SC), per Ducharme J. at 20 where the dominant purpose of the document is for existing, contemplated or anticipated litigation; and was created in answer to inquiries made by an agent for the party's solicitor; or was created at the request or suggestion of the party's solicitor; or was created for the purpose of giving them to counsel in order to obtain advice; or was created to enable counsel to prosecute or defence an action or prepare a brief. 2 Settlement/Negotiation Privilege The parties need the ability to have "full and frank discourse" in order for agreements to take place. Without protection these discussions may not take place.R. v. Pabani, 1994 CanLII 8723 (ON CA) The privilege protects the public interest in favouring settlement. It "promotes the interests of litigants generally by saving them the expense of trial".Kelvin Energy Ltd. v. Lee 1992 CanLII 38 (SCC), [1992] 3 S.C.R. 235 at para. 48 The disclosure of "without prejudice" communications has a tendency to promote litigation.Pirie v. Wyld (1886), 11 O.R. 422, [1886] O.J. No. 188 (QL) (Ont. H.C.), at para. 18 (“... letters written or communications made without prejudice, or offers made for the sake of buying peace, or to effect a compromise, are inadmissible in evidence. It seemingly being considered against public policy as having a tendency to promote litigation, and to prevent amicable settlements.”) The privilege applies where the following criteria are established:Calgary (City) v. Costello, 1997 ABCA 281 (CanLII) at para. 60 John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis Canada Inc., 2009) at para. 14.322 A litigious dispute must be in existence or within contemplation. The communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed. The purpose of the communication must be to attempt to effect a settlement. Where settlement fails the privilege is invoked and the communications cannot be used in the course of litigation.Hansraj v. Ao, 2002 ABQB 385 (CanLII) at para. 13 However, if settlement is successful, the communications may be used to prove the existence of a settlement contract.Hansraj v Ao at para. 13 The privilege is possessed by both parties to the litigation and cannot be unilaterally waived by one party.Hansraj v Ao at para. 13 The use of the term "without prejudice" alone is not determinative of whether settlement privilege applies.TDL Group Ltd. v. Zabco Holdings Inc. et al., 2008 MBQB 86 (CanLII) at para. 30 Flegel Construction Ltd. v. Cambac Financial Projects Ltd., > 1983 CanLII 1019 (AB QB) 2 Plea Negotiations Communications regarding plea negotiations fall under the category of "public interest privilege" and so cannot be used in court. This includes negotiations regarding bail hearingR. v. Bernard, [2002] A.J. No. 1007, 2002 ABQB 747 (CanLII) (Alta. Q.B.) as well as sentencing hearings.R. v. Roberts, [2001] A.J. No. 772 (Alta. Q.B.)) This privilege exists to permit "frank and full discussions between counsel for the accused and counsel for the Crown." R. v. Bernardo, [1994] O.J. No. 1718, (Ont. Gen. Div.) at para 16 R. v. Delorme, [2005] N.W.T.J. No. 51 (N.W.T. S.C.), 2005 NWTSC 34 at para 18 R. v. Roberts, supra, at para 60 R. v. Griffin, [2009] A.J. No. 1455, 2009 ABQB 696 (CanLII) (Alta. Q.B.) at para. 65 This kind of privilege cannot be waived by one party alone.R. v. Bernard, supra, at para 39 R. v. Griffin, supra, at para 54 2 Informer Privilege Informer privilege is intended to protect informants and "promote the giving of assistance to the police by citizens in the investigation and prevention of crime". It further encourages "other persons to provide assistance which would not likely otherwise be provided because of the extreme risks associated with disclosure of the identity of the source of the information." R. v. X and Y, 2012 BCSC 326 at at 18, 19 It is generally said that the prosecution does not need to disclose the identity of the police informer or provide information that may disclose the identity.R. v. Grey, 1996 CanLII 35 (ON C.A.) This is especially the case in drug trafficking cases.R. v. Scott 1990 CanLII 27 (S.C.C.), (1990), 61 C.C.C. (3d) 300 (S.C.C.) The court will only order the disclosure of the identity if it is needed to show the innocence of an accused person, known as the "innocence at stake" exception.R. v. X and Y, 2012 BCSC 326 at 20 Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60 R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281 Named Person v. Vancouver Sun, 2007 SCC 43 (CanLII) R. v. Basi, 2009 SCC 52 (CanLII) R. v. X and Y, 2012 BCSC 325 This can apply where the informer is a material witness to the offence. The determination requires balancing of the relevance of the identity of the informer and the prejudice to the informer and public interest in law enforcement.R. v. Garofoli 1990 CanLII 52 (S.C.C.), (1990), 60 C.C.C. (3d) 161 at 193 Courts have permitted defence counsel to ask a witness whether they have been an informer in the past and details about any history as an informer to support the theory that the witness invented the allegation of a drug rip off against the accused in expectation of receiving money.R. v. Toews et al 2005 BCSC 727 2 Public Interest Privilege and Investigative Techniques The following have been recognized as privileged as an investigative technique: simulated ingestion of controlled substancesR. v. Mueckon, (1990), 57 C.C.C. (3d) 193 (B.C.C.A.) location of a surveillance or observation postR. v. Lam 2000 BCCA 545 (CanLII), (2000), 148 C.C.C. (3d) 379 (B.C.C.A.) R. v. Richards 1997 CanLII 3364 (ON CA), (1997), 115 C.C.C. (3d) 377 (Ont.C.A.) the location of tracking devicesR. v. Guilbride, [2003] B.C.J. No.1245 (Prov.Ct.) the location and methods of examining of secondary VINs R. v. Boomer 2000 CanLII 4176 (NS SC), (2000), 182 N.S.R. (2d) 49 (S.C.) R. v. Smith, 2009 ABPC 88 (CanLII) 2 Spousal Privilege See also Canadian Criminal Evidence/Testimonial Evidence/Competence and Compellability#Spousal Immunity Spousal privilege is a class protection of certain communications between husband and wife. It is a protection that is separate and apart from spousal competency.See McWilliams' Canadian Criminal Evidence, 4th ed., vol. 1, looseleaf (Aurora, ON: Canada Law Book, 2010) at para. 13:40.10 A spouse who is found to be competent and compellable may still invoke privilege to protect their communications.R. v. Zylstra, 1995 CanLII 893 (ON CA) This class of privilege does not exist at common law, but rather was created by way of s. 4(3) of the Evidence Act, which states: 4 (3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage. CEA Third parties may "testify to communications between husband and wife that were overheard, intercepted, or otherwise discovered".R. v. R.R.W. (No. 2), 2010 NLTD 137 (CanLII) citing McWilliams’ at para. 13:40.50 2 Case-by-Case Privilege A communication that does not fit into one of the class privileges may nonetheless be protected under the "case-by-case privilege" that can be applied to communications on an ad-hoc basis where the requisite criteria are met.R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 SCR 263 Case-by-case privilege can be invoked where:Gruenke The communications must originate in a confidence that they will not be disclosed. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. The relation must be one which in the opinion of the community ought to be sedulously fostered. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. 2 Confidentiality Journalist Sources Where appropriate, "the courts will respect a promise of confidentiality given to a secret source by a journalist or an editor."However, where the public's interest in protecting sources is outweighed by other interests promises of secrecy cannot be maintained.R v National Post 2010 SCC 16 Confidentiality of journalistic sources can be measured on a case-by-case basis based on the "Wigmore criteria".ibid Confidentiality will be upheld if:ibid the communication originates in a confidence that the identity of the informant will not be disclosed; the confidence is essential to the relationship in which the communication arises; the relationship is one which should be sedulously fostered in the public good; and the public interest in protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth. In R v National Post 2010 SCC 16, the Court found that the fourth criteria was not made out where a journalist would not reveal a source who had potentially forged documents implicating a former prime minister in an illegal transaction. 2 Waiver of Privilege Inadvertently disclosing privileged information does not automatically result in a waiver of privilege. Implied waiver could be established by knowledge of disclosure of the information and silence in response to disclosing the documents. The court must look at all the circumstances.R v Chapelstone Developments Inc. 2004 NBCA 96 (CanLII) 2 Solicitor-Client Privilege Only the client can waive solicitor-client privilege.McClure at para 37 It must be waived intentionally. The client cannot be compelled to waive privilege by answering questions in the course of litigation. R v Creswell, 2000 BCCA 583, 149 CCC (3d) 268 A waiver of privilege can arise from an accused making allegations attacking competency of counsel using what would otherwise be privileged information.R. v. Hobbs 2009 NSCA 90 at para. 21 R v West 2009 NSCA 94 at para. 16 The waiver of privilege only covers evidence concerning the issue alleged.R v Dunbar [1982] OJ No 581 (ONCA) at 67 2