La procédure pour que la Couronne puisse invoquer le privilège du litige en cours (work product privilege)

R. v. Chan, 2002 ABQB 287 (CanLII)

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[102]      The following procedures will apply in the voir dire in terms of Crown's claims of work product privilege:

1. The Crown has the onus of establishing that the privilege applies. The Crown and defence may call evidence and make submissions as to whether the information is subject to work product privilege.

2. Where the Crown fails to establish the material is privileged, disclosure will be ordered.

3. If the Crown establishes the privilege, the onus shifts to the defence to establish waiver or that the information sought might possibly affect the outcome of the trial. This is a very broad relevance test. Both the defence and the Crown will be given the opportunity to adduce evidence and make submissions in this regard, with the defence going first.

4. If the Court finds the privilege was waived, disclosure will be ordered.

5. If the Court finds the privilege was not waived but the information sought might possibly affect the outcome of the trial, it will review the privileged communication;

6. After the Court reviews the information, the Crown and defence will be given the opportunity to make submissions on the factors to be taken into account in balancing the right of the applicants to make full answer and defence and the right to assert work product privilege.

7. Where the Court finds the right of the applicants to make full answer and defence is paramount in the circumstances, disclosure will be ordered.

8. Before disclosure is ordered in any of these circumstances, the Crown will be given an opportunity to determine whether it wishes to disclose the material and continue with the prosecution or stay the proceedings.