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[39] I turn then to the issue of settlement privilege. I begin with some basic considerations. First is a definition of settlement privilege, that I take from Union Carbide where Wagner J. said, at para. 31:
Settlement privilege is a common law rule of evidence that protects communications exchanged by parties as they try to settle a dispute. Sometimes called the “without prejudice” rule, it enables parties to participate in settlement negotiations without fear that information they disclose will be used against them in litigation.
[40] The second consideration is the nature of the privilege, that is, whether it is a class privilege or a case-by-case privilege. There was some implication in past cases that there were only two class privileges, namely, solicitor/client privilege and informer privilege.[3] However, spousal privilege is also treated as a class privilege: R. v. Hawkins, 1996 CanLII 154 (SCC), [1996] 3 S.C.R. 1043. This is a matter of some importance because class privileges are of a higher quality than are case-by-case privileges. Is settlement privilege, then, a class privilege?
[41] While there may have been some doubt on that issue in the past, that doubt was clearly removed by the decision in Sable Offshore, where Abella J. said, at para. 12:
Settlement privilege promotes settlements. As the weight of the jurisprudence confirms, it is a class privilege.
[42] The effect of a privilege being a class privilege is set out in R. v. National Post, 2010 SCC 16 (CanLII), [2010] 1 S.C.R. 477 where Binnie J. said, at para. 42:
Once the relevant relationship is established between the confiding party and the party in whom the confidence is placed, privilege presumptively cloaks in confidentiality matters properly within its scope without regard to the particulars of the situation.
[43] A class privilege has equal effect whether the proceeding is civil or criminal in nature. As noted by L’Heureux-Dubé J. in L.L.A. v. A.B., 1995 CanLII 52 (SCC), [1995] 4 S.C.R. 536 at para. 39:
A class privilege entails a prima facie presumption that such communications are inadmissible or not subject to disclosure in criminal or civil proceedings and the onus lies on the party seeking disclosure of the information to show that an overriding interest commands disclosure.
[48] It is clear to me, therefore, that settlement privilege is not to be approached, or treated, in the same fashion as solicitor/client privilege or informer privilege. It does not occupy the highest rank of privilege in terms of its inviolate nature nor can the rationales employed to justify the very narrow “innocence at stake” exception garner the same support.
[49] The above quotation from Binnie J. in National Post leads into the first issue to be determined and that is the extent or scope of settlement privilege. The situation here is different from the situations that presented themselves in Sable Offshore and Union Carbide, both of which arose out of civil proceedings. Here, we have a criminal proceeding, where the accused have certain constitutionally guaranteed rights. One of those guaranteed rights is the right to make full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms.
[52] Having determined that such a privilege should attach to plea negotiations, LeSage J. nonetheless found that any such privilege would not attach to the information that the Crown had received from counsel for Ms. Homolka. He found that the privilege would only attach to information that was sought to be used against the accused who reached a plea agreement and not with respect to another accused. Specifically, LeSage J. said, at para. 17(QL):
Although I readily accept the Crown’s position that a privilege ought to exist in the sense that the information should not be used against her in a subsequent prosecution, I do not conclude that the “privilege” ought to extend when that person, i.e. Ms. Homolka, is not an accused nor is at any risk of prejudice. In this circumstance, it is intended that she testify on behalf of the Crown, putting another at penal risk.
He continued, at para. 18(QL):
Assuming that a privilege does attach to these negotiations, that privilege ought not to extend to an agreement that requires the person to be a witness against another when, as here, she will be a witness for the Crown.
[53] It is clear, therefore, that the decision in Bernardo did not extend the scope of settlement privilege to the situation where information was provided to the Crown in furtherance of a plea agreement that was relevant to another accused person and his or her right to make full answer and defence. Rather, LeSage J. restricted the scope of the privilege to any attempt to use the information, in any subsequent prosecution against the person who provided it. I believe that it is implicit, in that finding, that the privilege would also extend to any use of the information, against the person who provided it, in another type of proceeding, such as a civil claim.
[55] Vertes J. considered whether any of three possible privileges applied to the information – solicitor/client privilege; work product privilege; or settlement privilege. Interestingly, Vertes J. also rejected the argument that solicitor/client privilege could attach, using language very similar to that used by LeSage J. in Bernardo. He said, at para. 11:
Solicitor-client privilege is not an issue on this application. Any communications disclosed by the lawyers for the three individuals to the Crown lost the privilege since, at the time, the Crown was a party adverse in interest.
[56] Vertes J. did not specifically address work product privilege. Rather, he chose to turn to settlement privilege and determine whether it precluded disclosure of the information. In doing so, Vertes J. took a different approach to that taken by LeSage J. He began by finding that LeSage J. had “set aside” the privilege. That is not, in fact, what LeSage J. did. Rather, it is clear, from his reasons, that LeSage J. found that the privilege did not apply.
[57] Vertes J. concluded that settlement privilege (or plea negotiation privilege as he called it) applied to the information. He then considered whether an exception to the privilege would nonetheless make the information subject to disclosure. In his analysis, Vertes J. chose to apply the test from R. v. O’Connor as the appropriate test for finding an exception to the privilege. It appears that he viewed this as a middle ground between the broader Stinchcombe test for disclosure and the much narrower McClure test for disclosure. He said, at para. 47:
While the plea negotiation privilege is also based on policy reasons, it does not share the same fundamental position as does solicitor-client privilege. Thus I think there is justification for a less stringent test.
[58] Having decided on the test for an exception, Vertes J. then reviewed the actual information that was at issue. He decided that the information relating to the co-accused, who would be called as a witness, and the co-accused that might be called as a witness, should be disclosed. He decided that the information relating to the co-accused, who was not being called as a witness, would not have to be disclosed. It is worth noting, however, that in reaching that conclusion, Vertes J. found, at para. 52, that there was “nothing in them which, in my opinion, could compromise Delorme’s ability to make full answer and defence”.
[59] I accept that there is a conflict in the approaches taken in Bernardo and Delorme. That said, when one looks at the factual determination that Vertes J. made regarding the usefulness of the information at issue to Mr. Delorme, it is not clear to me that there is an actual conflict in the result.
[60] What then is the proper approach? Let me begin by making a couple of general comments. One is that it seems to me that the necessary first step is to determine whether the privilege applies to the information, before turning to any issue regarding exceptions that may be applicable. The other is that I believe that it is risky to simply transfer and apply the approach, analysis, and results, where settlement privilege has been applied in civil cases, to criminal cases. I say so because, as I noted earlier, there are different constitutional dimensions to a criminal proceeding over a civil proceeding.
[69] I conclude, therefore, that settlement privilege does not apply to prohibit the disclosure of factual information provided to the Crown in respect of a proposed criminal prosecution in circumstances where the person providing that information does so with the knowledge that the Crown intends to rely on some or all of that information for the purposes of that criminal prosecution. I would say that that is especially so where the person who is providing the information has committed to providing evidence, in the future, against the accused in that prosecution.
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