Les principes généraux concernant le privilège relatif au litige et sa renonciation

R. v. Alek Minassian, 2020 ONSC 7130

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B.   LITIGATION PRIVILEGE

General Principle

[7]               The defence in a criminal trial is free to retain experts and conduct investigations without any general duty to disclose the fruits of such inquiries to the Crown.  An expert opinion obtained by the defence is not subject to disclosure, nor are any of the materials relied upon by the expert in preparing that opinion.

Waiver when expert called to testify

[8]               Notwithstanding the general principles of litigation privilege, where the defence intends to call an expert witness at trial, the Criminal Code requires that notice be given to the Crown 30 days before trial.  Further, if that witness is called to testify, the defence must provide either a copy of the expert’s report (if there is one) or a summary of his or her anticipated evidence not later than the close of the prosecution case.[1]

[9]               These Criminal Code provisions are only minimum requirements. In addition, it is well accepted in the case law (and not in dispute in this case) that when an expert testifies at trial, disclosure must be made of any material relied upon by the expert in coming to his or her opinion.  As stated by the Supreme Court of Canada in R. v. Stone:

. . . The act of calling of Dr. Janke would certainly constitute waiver of any privilege attached to his report. As noted by McEachern C.J., once a witness takes the stand, he/she can no longer be characterized as offering private advice to a party.  They are offering an opinion for the assistance of the court.  As such, the opposing party must be given access to the foundation of such opinions to test them adequately.  Given the fact that the report would have to have been disclosed after Dr. Janke’s direct examination, the prior disclosure of the report cannot be said to have had any material impact on the outcome of the trial.  Absent the earlier disclosure, the Crown would have been entitled to stand the appellant down before completing its cross‑examination of him, and to recall him once they had been given an opportunity to consider the contents of the report.[2]

[10]           If the expert is relying on information obtained from the accused in coming to his opinion, and has taken notes of those interviews, those notes must be disclosed if the expert testifies.[3]  The defence in this case has already produced the handwritten and typed notes of the interviews done by Dr. Westphall and his co-authors.

Waiver when material used by witness to refresh memory

[11]           Another common manner in which litigation privilege is waived is where a witness (whether expert or not) uses material to which the privilege might otherwise attach in order to refresh his or her memory.

[12]           In R. v. Sachkiw,[4] the accused was charged with refusing to provide a breath sample.  The next day he made notes of his interactions with the police and everything he could recall that had been said.  He did this before consulting legal counsel, but the notes were clearly for the purpose of preserving his memory of the events, in anticipation of the future litigation.  As such, they were found to be protected by litigation privilege.  However, prior to his trial, the accused reviewed his notes for the purpose of refreshing his memory as to the specifics of the events.  After a careful and scholarly analysis, Dawson J. ruled that this constituted a waiver of the privilege and the notes must now be disclosed.  I agree with and adopt that analysis.