Est-ce que le privilège relatif au litige (work product) peut s'étendre aux documents préparés par les policiers?

R. v. Trang, 2002 ABQB 390 (CanLII)

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[10]      As I noted in R. v. Trang, 2002 ABQB 19; [2002] A.J. No. 119 (QL), at paras. 90, 94 and 96, dealing with whether solicitor “work/litigation product” privilege extends to police work product:

¶ 90 Other than Petersen, Stewart, Brennan and Charron, I have been unable to find any authority where work product privilege was applied to material produced by the police. Further, no rationale is provided in those cases for refusing disclosure of the information therein referred to. For example, the Court in Brennan, at para. 21, simply stated that a memorandum prepared by an investigator containing a summary of information which the accused already possessed pursuant to the Crown’s disclosure obligations, was properly characterized as work product which the Crown would not ordinarily be obliged to disclose.

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¶ 94 Although agency may justify application of the work product doctrine to material prepared jointly by Crown and police or by police at the request of the Crown, for instance if the Crown requests police to prepare a chart for trial, the traditional agency doctrine may not always be used to extend work product of the Crown to work produced by the police alone, as the police are not considered agents of the Crown at least at the investigative stage: Shirose at paras. 27 ‑ 29.

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¶ 96 On the other hand, whether similar work produced by the police during the investigative stage and leading up to the prosecution of an accused should be accorded similar status need not be addressed at this time, in light of the Crown’s representation that the Additional Information in issue was work product related to preparation for trial.

[11]           In my opinion, it is also unnecessary at this time to determine this issue, in light of my finding below. 

[12]           Nevertheless, I offer the following:

	1.	It seems to me that there is a material difference between work product at the “investigation” stage and at the “prosecution” stage;
	2.	At the “investigation” stage, the purpose of the police involvement in the Drafts was to further the investigation by obtaining a judicial order to intercept private communications. I have difficulty in understanding, as a matter of policy, why work product privilege should apply to the work of the police during this stage;
	3.	That is not to say that work product privilege can never apply to police work during the investigative stage of a criminal prosecution. For example, if the investigation has essentially been completed or substantially completed and the police prepare an organizational chart of the alleged criminal organization for the purpose of the prosecution, it is arguable that such chart falls under the umbrella of Crown/solicitor work product privilege;
	4.	Further, it does not follow that because the Drafts may not be protected by work product privilege, the Drafts in their entirety must be disclosed. It is only the facts/fruits of the investigation contained in the Drafts that are not contained in the Filed Affidavits that must be disclosed, particularly if they have not otherwise been disclosed; for example, if there were other information contained in the Drafts which were irrelevant, in terms of Stinchcombe and related cases, such information would not need to be disclosed. As well, the thought process of how to construct a final affidavit and the like, reflected in drafts may be irrelevant.