R. v. Taing, 2011 ABPC 165 (CanLII)
[69] In R. v. Griffin, 20 Alta L.R. (5th) 237, Justice Greckol considered an application arising out of Crown disclosure of certain information the Defence lawyer had provided about the accused in an effort of resolve the charges.
[70] She noted that in the criminal law context, settlement negotiation privilege, or plea bargain or plea negotiation privilege, is a recognized form of privilege and should be “sedulously protected in the interests of encouraging fair, reasonable and efficient disposition of criminal cases, in the interests, of the public, victims, witnesses and accused persons.” (Para. 65)
[71] To determine whether the communication was covered by plea negotiation privilege, Madam Justice Greckol (para. 53) applied the test from Sopinka’sLaw of Evidence in Canada and adopted by the Alberta Court of Appeal in Costello v. Calgary (City) (1997) 209 A.R. 1:
(a) A litigious dispute must be in existence or within contemplation.
(b) 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.
( c) The purpose of the communication must be to attempt to effect a settlement.
[72] There was not a lot of evidence on these points but I did not understand Ms. Byrne to dispute that the correspondence in question was sent by Mr. Hepner after the complaint was filed against his four clients and therefore after commencement of the internal investigation.
[73] The first branch of the test requires an existing or contemplated litigious dispute. At the time there were no charges pending against the officers nor any civil proceedings commenced arising from the incident. Nevertheless, given that the express purpose of the communication was to avoid charges against the officers, and jeopardy arising from the internal disciplinary process, I find that the actual and potential proceedings arising from these matters is sufficient to satisfy this first branch of the test.
[74] Regarding the intention that the contents be kept confidential, the express and implied intention was that the material would not be disclosed or used for any purpose other than the inquiry into possible criminal charges.
[75] Finally, the third branch of the test is that the purpose of the communication be for the purpose of effecting a settlement. There was no real dispute against the assertion that Mr. Hepner’s main purpose in sending the communication was to effect a satisfactory resolution of the legal issues facing his clients as a result of Mr Taing’s complaints against them. I find that this branch of the test is also satisfied and that the records are subject to plea negotiation privilege.
[76] However, that does not necessarily end the matter. Unlike true solicitor client privilege, materials subject to plea negotiation privilege may still be subject to disclosure even without the applicant bringing themselves within the innocence at stake exception. This was discussed in R. v. Delorme, [2005] N.W.T.J. No. 51 referred to in Griffin.
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