PRIVILEGE (exclusionary rule)

Exceptions to Solicitor-Client Privilege: Criminal Purpose, Public Safety, Innocence at Stake

1. 
   Criminal Purpose: communication in furtherance of crime not privileged Descoteaux v. Mierzwinski
   
   1. 
      Legal advice must be lawful to attract protection
      
   2. 
      Confidential communication can lose that character if and to extent that they were made for purpose of obtaining legal advice to facilitate the commission of a crime/fraud (Campbell obiter)
      
   3. 
      Where communication itself is material element (actus) of the crime, the communication is not privileged
      
   4. 
      Something more than evidence of existence of a crime and proof of anterior consultation with lawyer – something must suggest that advice facilitated crime and lawyer was a “dupe or conspirator” Campbell
      

• 
  Not clear whether this is actual exception or whether criminal purpose is not privileged ab initio
  

2. 
   Public Safety: a lawyer may disclose if there is reason to believe that not disclosing may result in death or serious bodily harm – ought to consider 3 factors Smith v. Jones
   
   1. 
      Is there a clear risk to an identifiable person or group of persons
      
      1. 
         Consider: long-range planning, method for carrying out, history of similar prior threats/assaults
         
      2. 
         Threatened group doesn’t have to be small so long as it is a clearly identifiable group
         
   2. 
      Is there a risk of serious bodily harm or death?
      
      1. 
         Threat must be such that victim is in danger of being killed or suffering serious bodily harm (includes psychological harm)
         
   3. 
      Is the danger imminent?
      
      1. 
         If imminent, danger is serious
         
      2. 
         Imminent means risk itself is serious – nature of threat must create sense of urgency
         
      3. 
         Defined in terms of circumstances – does not necessarily mean it will happen soon, just that there is great probability that the threat will be carried out
         

• 
  Note: Law Society rules grant an exception for lawyers to tell police in circumstances like this
  

3. 
   Innocence at Stake: 2 stages – must be proven by accused on balance of probabilities (McClure/Brown); applies to solicitor client and informer privilege; “the one true exception”
   
   1. 
      Threshold stage:
      
      1. 
         Info accused seeks from solicitor/client privilege is not available from any other source
         
         1. 
            Re necessity, any application will be based on “some” info that a potentially exculpatory 3^rd part s/c communication exists
            
         2. 
            Means “no access” to communication from any other source
            
      2. 
         Accused must be otherwise unable to raise reasonable doubt
         
         1. 
            Accused must show there is no other defence and the requested communications would make a positive difference in the strength of the defence case
            
   2. 
      Actual IAS test:
      
      1. 
         Accused seeking production of privileged communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to accused’s guilt
         
         1. 
            Requires some sort of evidentiary basis that the info could exculpate the accused
            
      2. 
         If such an evidentiary basis exists, trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt of accused’s guilt
         
         1. 
            Evidence must be able to stand on its own in raising a reasonable doubt, not that it will help the defences case when considered cumulatively with other evidence
            
         2. 
            Cumulative effect will only be basis for disclosure when the s/c disclosure is needed to make sense of other evidence and thereby raise reasonable doubt
            
   3. 
      Limits: only parts necessary to raise RD will be disclosed, crown only receives disclosure to extent that defence relies on the evidence, client who lost privilege cannot have disclosed communication used against him in any charges relating to statement
      
4. 
   Somewhat of 4^th exception: Client’s Best Interests
   
   1. 
      Often in wills & estate cases where it would be in the client's best interests, in ensuring that the disposition of assets was best dealt with, for the lawyer to disclose information that the client made
      
   2. 
      Also in a case where a woman was killed by her husband, court allowed the wife's lawyer to disclose information she had given to him, because they believed it to be in her best interests
      

• 
  P filed complaint with HRC against former employer, discrimination, harassment – HRC decides not to deal with complaint, P seeks judicial review for motion for reproduction of documents, including legal opinion provided to HRC by in-house counsel
  
• 
  Legal opinion privileged: in house counsel opinion protected by same privilege as outside counsel for same matter
  
• 
  Sometimes in-house counsel communication not privileged i.e. if business advice, owing to nature of work
  
• 
  Criticism: legal profession is self-regulating, maybe overemphasizes this privilege
  

• 
  Unlawful trafficking by RCMP to catch trafficker; C claimed defense of entrapment, RCMP claimed no entrapment/abuse of process because they were operating on advice of legal advice
  
• 
  By claiming to be relying in good faith on legal advice, privilege to that legal opinion waived
  
• 
  Obiter: had privilege not been found to have been waived, court would have been inclined to order production re legal opinion on entrapment on basis that it may have counseled a criminal act
  

• 
  Lawyer sent J to see S, psychiatrist, from meeting S was concerned about what J would do, and informed J’s lawyer of this – communication between S and J was privileged – S agent of lawyer
  
• 
  Court lays out test for disclosure where there is threat of public danger (rare)
  
  • 
    Clear threat: J had planned and prepared in significant detail attacks on prostitutes
    
  • 
    Seriousness: careful and detailed plan to rape, kidnap, murder, already carried out once
    
  • 
    Imminence: J at large since statement, assaulted prostitute prior to this, hadn’t done anything since – however, breached bail, and possibly behaving because of acute awareness of consequences
    
• 
  Court order to waive privilege and disclose; court said Dr taking legal action not only thing to do, there is exception that applies, and in emergency it might be reasonable in certain circumstances to notify police or Crown
  

• 
  Series of sex offences w/students; timing of one was suspicious b/c she filed complaint only after hearing about charges and consulting a lawyer; defence wanted to see communications; Innocence at Stake
  
• 
  McClure application: accused must show threshold, 2 substantive tests on BOP (see above, changed in Brown)
  
• 
  Solicitor-client must be as close to absolute as possible to ensure public confidence and retain relevance does not involve balancing interests on a case-by-case basis
  

• 
  B murder suspect, circumstantial evidence and jailhouse informant, DR tells police that bf Benson told her and his lawyer that he committed the murder; evidence suggested another man had confessed to his lawyer he did it
  
• 
  Normally access to communications denied, as info is available through witness testimony; unreliable but cross ex
  
• 
  Stage 1: Threshold
  
  • 
    Not available from other source – DR poses problem but her testimony may be inadmissible hearsay and there is a reliability problem possible
    
  • 
    Otherwise unable to raise RD – B may have been able to raise RD b/c crown’s case highly circumstantial
    
• 
  Stage 2: actual Innocence At Stake: info disclosed
  
  • 
    Sufficient evidentiary basis that it could raise RD – yes, DR’s statement plus lawyer’s card with instructions to Benson to “remain silent”
    
  • 
    Examine communication/is it likely to raise RD
    
• 
  When IAS and choice is between admitting hearsay and privileged info or not, the former is safer
  
• 
  Residual power to relax testing in favour of accused, disclosure for specific, exceptional purpose
  
• 
  Crown can’t use exceptional purpose for disclosure of privileged material it wouldn’t normally get: if accused doesn’t rely on privileged communications as evidence, they’ll never come to Crown’s attention
  

Litigation Privilege

• 
  Arises once litigation is on horizon, disappears once litigation is over
  
• 
  Attaches to documents/reports/etc that are produced by 3^rd parties for purpose of litigation
  
• 
  Dominant Purpose Test: privilege attaches to documents created (copied, gathered) for dominant purpose of lit
  

• 
  Efficacy of adversarial process; parties to litigation, represented or not, must be left to prepare contending positions in private, without adversarial interference and without fear or premature disclosure Blank, Basi
  

• 
  Litigation defined broadly: particular proceeding which gave rise to claim, and separate proceedings re: same issues, with same or related parties, arising from same or related cause of action
  
• 
  Privilege applies to all litigants (including self-represented litigants), independently of solicitor-client privilege
  
• 
  Protects: Documents, objects, communications including communications with 3Ps
  

• 
  Prepared [BC- gathered, copied, or annotated] by counsel or persons under counsel’s direction
  
• 
  For the dominant purpose of existing, contemplated, or anticipated litigation
  
• 
  Until the litigation (or related litigation) ends
  

• 
  S-C privilege applies only to confidential communications between parties, litigation privilege applies to communication of non-confidential nature between solicitor and 3P and includes non-communicative material
  
• 
  S-C privilege exists any time client seeks legal advice and is permanent, litigation privilege applies only in context of litigation itself and ends when litigation ends
  
• 
  Rationale for S-C privilege based on fostering relationship, litigation privilege based on need for private “zone”
  

• 
  B requested access to office records pertaining to his and his corporation’s prosecutions, claiming damages for fraud, perjury, conspiracy and abuse of prosecutorial powers in relation to proceedings against him
  
• 
  Litigation over, still wants documents privileged; claim had been that it’s like S-C privilege
  
• 
  Court said no those documents probably disclosed anyway
  

• 
  Hypothetical possibility that related proceedings may occur in future not sufficient to claim lit privilege
  
• 
  Matters not related enough for privilege to continue – documents created for prosecution of environmental and reporting matters, now the litigation at hand is charges of conspiracy, fraud…
  

• 
  Litigation privilege is neither a class nor a case-by case privilege; neither permanent nor absolute
  

• 
  Some of what is protected in civil litigation context are not protected in criminal context: expert reports and witness statements
  

• 
  If document is made for dominant purpose of litigation, then litigation privilege will apply in criminal cases, subject to right of accused to argue that production is necessary on the basis of his or her need to make full answer and defence, a standard lower than innocence at stake
  

Marital Privilege

• 
  Spousal privilege is purely statutory; at CL it wasn't necessary, spouses incompetent to testify against each other
  
• 
  s. 4(3) CEA:
  
  • 
    No husband is compellable to disclose any communication made to him by his wife during marriage, v/v
    
  • 
    Communications between spouses don't have to be confidential to be privileged;
    
  • 
    Can probably allow observations made by spouses; can waive
    
• 
  Included after spouses were made competent and sometimes compellable via s. 4(2) CEA for certain offences
  
• 
  Privilege is held not by person making the statement (ie accused), but by the spouse communication was made to
  

• 
  C’s wife made statements to police when estranged from C, C said he killed 2 women before they were married; At time of trial, coupled had reconciled
  
• 
  Crown wanted statements in as necessary and reliable hearsay, despite fact that their marriage was valid and subsisting making wife not competent or compellable: court says no, would undermine spousal privilege
  
• 
  Not totally clear if s.4(1) just deals with competence not compellability; court assuming that spouse here, though not compellable by Crown, could be compelled to testify for defence
  

Settlement Negotiation Privilege “Without Prejudice”

• 
  Communication made during attempts to settle a litigious matter through negotiations/mediation are not admissible if negotiations/mediation fail and matter is litigated
  
• 
  Communications made with other side for purposes of settling are privileged (often says “without prejudice”)
  
• 
  Presence/absence of “without prejudice” at top of letter indicates purpose, but court will look at purpose of communication – ie may finding privilege without words, no privilege even with words
  
• 
  Strong public interest in favour of settlement, so communication and info shared between parties in relation to settlement are generally protected from disclosure
  

• 
  Ex. During negotiation, your client may admit liability to settle, very prejudicial
  

Informer Privilege

• 
  Arises when law enforcement gives explicit or implicit guarantee of confidentiality to informer in exchange for provision of info
  
• 
  Premised on duty of citizens to aid in enforcement of law and recognition that they risk retribution by doing so; very important in criminal cases
  
• 
  Concealing informer’s identity both protects informers and encourages them and others to provide information in future; but has led to stays of proceedings in serious cases
  
• 
  Nearly absolute, overrides even Crown fundamental duty to make disclosure and deference
  
• 
  Class privilege so can’t be balanced against other interests
  
• 
  Once privilege established, judge has no discretion to order disclosure unless “innocence at stake test” established
  
• 
  Court, Crown, defence (as officers of court) have obligation to take steps to protect privilege
  

• 
  In R v. Barros 2011, however, SCC said accused or D can take independent investigative steps to try to discover informer’s ID if those steps are lawful and purpose of making full answer and defence
  

1. 
   Purpose: protect identify of police informants from retribution from criminals and encourage informers to come forward; does not protect information provided unless releasing info might tend to identify informer; informant information can be in form of direct evidence, hearsay, exhibits
   
2. 
   Privilege belongs to the crown Leipert
   
   1. 
      Crown cannot, without informer’s consent, waive the privilege
      
   2. 
      Why? Flows from Crown’s interest in protecting informer
      

Identify of Informer Disclosed when:

1. 
   Where informer is material witness (but ONLY where informer is ONLY material witness)
   
2. 
   Where you can characterize the informer as an agent provocateur
   

• 
  informer not only introduced police to accused but also played a role in case against accused; informers identity could be revealed where accused needs to know identity to establish defence and has an evidentiary basis for the defence - similar to "innocence at stake exception" to S/C privilege
  

3. 
   Where there is a s. 8 issue regarding the reasonableness of a search - disclosure should be edited and done made in circumstances where absolutely essential – don’t want to send negative message to future informers
   

R. v. Leipert 1997 SCC

• 
  Police received tip L was growing marijuana in basement, took drug sniffing by house to confirm; one basis for search warrant was informant’s Crime Stoppers tip
  
• 
  Defence wanted edited copy of tip disclosed, to poke holes in info provided which gave rise to warrant
  

• 
  Not allowed TJ attempt to edit the tip of all/any identifying info not acceptable, police and courts have no power to diminish informer privilege – can’t know what info in tip will give away informer’s identity
  

• 
  Informer privilege of such importance that once found courts cannot balance against other considerations
  
• 
  Procedure for challenging informer privilege:
  

1. 
   Accused must show some basis to conclude that without disclosure, his innocence is at stake.
   
2. 
   If shown, judge reviews info to see whether it is necessary to prove accused’s innocence.
   
3. 
   If it is, judge reveals only as much info as is necessary.
   
4. 
   Before judge discloses info, Crown has option of staying proceedings instead.
   
5. 
   If Crown proceeds, info essential to establish innocence may be given to accused.
   

Case-By-Case Privilege

• 
  Other confidential communications not protected by class privilege may be protected on case by case basis; people want things privileged to avoid putting evidence in
  
• 
  Burden on person asserting privilege, to show that while prima facie not privileged, it should be here
  
• 
  Doctor/Patient, Religious Communications; Psychiatric Counselling Records; Journalistic Sources
  

Wigmore’s Test

1. 
   Confidential Communication: Communications must originate in a confidence that they will not be disclosed
   
   1. 
      Note: just because communication is confidential doesn’t mean it ought to be privileged, but to find a privilege, communication must have been intended to be confidential
      
2. 
   Confidentiality Essential: Element of confidentiality must have been essential to the full and satisfactory maintenance of the relation between the parties
   
   1. 
      S/C paradigm for example
      
3. 
   Protection of Relationship Important: Relation must be one which in the opinion of the public ought to be sedulously fostered
   
4. 
   Cost-Benefit Analysis: Injury that would injure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation
   
   1. 
      Makes approach seem utilitarian, in contrast with recent developments with privacy
      

Slavutych v. Baker

• 
  S was professor at U of A, dismissed in accordance with faculty handbook in part for comments S made about another faculty member in a tenure form sheet, completely unprofessional to trash a colleague;
  
• 
  S under impression that tenure form sheet was confidential, said he only revealed his thoughts after begin promised they would be kept confidential, and said he would go along with committee anyway
  
• 
  SCC applies Wigmore criteria, kind of as obiter:
  
  • 
    Communication originated in confidence – confidence was stressed by S
    
  • 
    Confidentiality necessary for relationship – yes necessary to get honest opinions of fellow faculty
    
  • 
    Sedulously fostered – yes, interests of university community
    
  • 
    Injury of disclosure greater than benefit gained – interest in proper procedure for dismissal, but interest is not any great than interest of confidentiality
    
• 
  Tenure sheet form comments should have been inadmissible when deciding to terminate S; probably a tort/breach of confidence anyway said court
  

Religious Communications Privilege

R. v. Gruenke 1991 SCC

• 
  G and bf kill old man, G confesses to unordained priest, is now arguing for priest/penitent privilege
  
• 
  Not Class privilege, no CL prima facie privilege for religious communications
  

• 
  Test: are the policy reasons for supporting class privilege for these communications as compelling as policy reasons underlying solicitor-client privilege? No
  

• 
  Not Case by case privilege
  

• 
  Wigmore #1: fails here – conduct of G did not suggest communication originated in confidence, made remark that she say no harm in talking to him because she had already made up mind to turn herself in; pastor testified he didn’t know if communication was intended to be confidential
  
• 
  Lack of formal confession was not fatal, but may be strong indication of parties’ expectations
  

• 
  Note: relevant that G wasn’t making confession for spiritual/religious purposes, but to relieve stress
  
  • 
    Likely that a religious purpose for priest/penitent privilege would withstand Wigmore criteria
    

Journalistic Privilege

R v. National Post 2010 SCC

• 
  Argument for case-by-case privilege for reporters and their confidential communications with sources
  

• 
  Claiming s. 2(2) freedom of press right; ONCA said no class privilege, case current at SCC
  

• 
  No class: 1. Immense variety and degrees of professionalism among journalists, 2. Uncertainty in scope of blanket privilege (who could claim, who could waive), 3. Absence of workable criteria for creation or loss, 4. Class privilege too rigid to be adapted to varied circumstances
  
• 
  Wigmore analysis “informed by Charter guarantee of freedom of expression and rights of press and other media
  

• 
  1 & 2: Source’s insistence on confidentiality as condition precedent to disclosure is essential to privilege
  
• 
  3: introduces some flexibility in court’s evaluation of diff sources and different types of “journalists”
  
• 
  4: does most of the work – weigh protection of confidence against any countervailing public interest (criminal investigation, national security, public safety)
  

Psychiatric Records Privilege

M.(A.) v. Ryan 1997 SCC

• 
  M saw R for psychiatric treatment, sued civilly for damages for psychological injuries due to sexual relations
  

• 
  M saw second psychiatrist P who assured her communication kept confidential
  
• 
  R’s defence was consent, so her state of mind about what happened was relevant
  

• 
  P agreed to release reports for discovery, but didn’t want to release session notes, he was current psych
  
• 
  Not Class, compared to Solicitor-Client; then consider Case-by-Case Wigmore
  
• 
  Wigmore #1: yes, M stressed need for confidentiality; Apprehended possibility of disclosure does not necessarily negate the privilege, otherwise privilege would seldom be found
  
• 
  Wigmore #2: P’s practice and r/ship with M predicated on ability to assure of confidentiality; Clearly satisfied; fact that patient/doctor feared court-ordered disclosure in future didn’t negate fact that confidentiality essential
  
• 
  Wigmore #3: victims of sexual assault suffer trauma, public and victim interest in ensuring they get help; Clearly satisfied, widely accepted it’s in interest of victim and society that such help be obtained
  
• 
  Wigmore #4: interests of protecting community from disclosure include injury to M’s ongoing relationship with P and her future treatment, also privacy and inequality interest
  

• 
  However also strong public interest in truth finding process and correct disposition of litigation; Assess:
  

• 
  Injury to on-going relationship
  
• 
  Effect on ability of other persons suffering similar trauma to seek treatment
  
• 
  Effect on society of lack of treatment of victims
  
• 
  Privacy interest of person claiming privilege
  
• 
  Inequalities possibly perpetuated by disclosure: compelling interest in protecting communications
  

• 
  3 criteria met in psychiatrist/patient context, #4 will help balance competing interests and allow for some documents to be disclosed where highly relevant to defence, but protect others;
  

• 
  Balance:
  

• 
  Need to find truth in litigation
  
• 
  In criminal accused permitted to answer Crown, so justice allows D in civil suit to answer P’s case
  
• 
  But disclosure in civil suit less compelling than in criminal
  
• 
  Questionable relevance: Many communications won’t be relevant, no fishing expeditions by D’s
  
• 
  Available for other sources? Can limit this
  

Public Interest Immunity or “Crown Privilege”

• 
  Balance public interest in disclosure against non-disclosure: weigh affected interests and factors for and against
  
• 
  Court oversight of Crown objections to disclosure
  
• 
  Protected by s.37 CEA and CL [Carey, Duncan, Conway]
  
• 
  Sometimes protects ID of people who have assisted police, like providing observation posts in home or business, but are not at the level of informant Basi
  
• 
  Sometimes protects investigative techniques, whose disclosure would cause serious risk to admin of justice
  

1. 
   If privilege claimed at trial, TJ must decide first if info might possibly affect outcome of the trial
   

• 
  If not, privilege claim upheld
  

2. 
   If so, TJ must consider whether upholding privilege claim would have effect of preventing accused from making full answer and defence
   

• 
  If so, TJ should consider giving Crown the alternative of either withdrawing the claim or entering a stay of proceedings
  

3. 
   If Crown refuses either, then TJ may permit introduction of evidence with safeguards Meuckon
   

R v. Basi

• 
  Crown concerned about revealing ID of informer, went to SCC: How do you litigate informer privilege?
  
• 
  Whenever dealing with informer privilege, neither accused nor counsel can be present, not just in camera but ex parte accused, no other way to ensure no one knows ID of informant
  

Reference Re Legislative Privilege

• 
  Constituent told MLA confidential info re: crime; MLA refused disclosure saying it was privileged as he was an MLA and r/ship with constituents needed to be protected
  
• 
  Wigmore #3: r/ship between MLA and informer not one to be sedulously fostered – where person has info about crime and is looking to protect public interest they take that to police, not their MLA
  
• 
  Wigmore #4: can’t say injury cased to r/ship between MLA and constituent greater than benefit gained by community by proper and unimpaired disposition of criminal cases
  

s.9 Crown Proceedings Act BC:

• 
  Allows for discovery of the Crown as if Crown were a corporation
  
• 
  Preserves Crown/Executive privilege to intervene in cases where it is not a party
  
• 
  Where Crown argues that disclosure of a document would be injurious to public interest, the court may hold a hearing and order disclosure based upon the public interest in the administration of justice
  

s.37 CEA Disclosure and Public Interest

• 
  A public official can object to disclosure for a specified public interest. Information is then withheld until either: Superior or Federal Court has an opportunity to reassess (2) and (3)(a)
  
• 
  Options: 1) disclose, 2) qualified disclosure, 3) order of non-disclosure. These orders can be appealed.
  
• 
  Preserves CL that court has discretion to examine info in question and weigh competing interests
  
  
  

(1) Subject to s.38-38.16, Minister of the Crown or other official may object to the disclosure of information before the court, person or body with jurisdiction to compel the production in any form by certifying orally or in writing that the information should not be disclosed on the grounds of a specified public interest
(1.1) If objection made, the Court will ensure that the information is not disclosed except in accordance with this Act.
(4.1) Unless the information would encroach upon the specified public interest, court may authorize by order the disclosure of the information.
(5) If determined that the information would encroach upon the specified public interest but that the public interest in disclosure outweighs in importance the specified public interest the court may, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any encroachment, authorize the disclosure, subject to any conditions that the court considers appropriate.
(6) If not ordered under (4.1) or (5), the court shall prohibit disclosure of the information.

s.38-38.16 CEA National Security

• 
  Post 9/11; gov’t has range of powers to prevent disclosure of stuff that might affect national security, IR
  
• 
  Oversight of these issues only at Federal Court, due to expertise and consistency
  
• 
  2 types of information involved:
  

1. 
   Potentially Injurious Information: a if it were disclosed could injure IR, or national defence or security
   
2. 
   Sensitive Information: Relating to IR or national defence or security that government is safeguarding
   

s.38.01 Obligation to disclose to the AG about possible disclosure of “potentially injurious” or “sensitive” information.
s.38.06(1) Unless injurious to IR, ND or NS, the judge may authorize disclosure.

(2) Judge may weigh competing interests and determine whether, and by how much to authorize disclosure.

(3) If not disclosed, judge will confirm prohibition of disclosure.
s.38.13(1) AG may personally issue certificate that prohibits disclosure of information in connection with a proceeding for purpose of protecting info obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) Security of Information Act or for purpose of protecting national defence or national security. The certificate may only be issued after an order or decision that would result in the disclosure of the information to be subject to the certificate has been made under this or any other Parliamentary Act [can prohibit disclosure even once it’s been issued]

• 
  The right of appeal is extremely limited, both institutionally and in the grounds; can apply to Fed Ct once
  
• 
  It is not the person presiding over the proceeding who makes the decision either to issue the certificate or to vary or cancel the certificate: these sections apply only after person presiding and a judge of the Federal Court have done whatever they can do.
  
• 
  No mechanism for correcting any effort by AG in assessing the balance b/n the interests in disclosure/non
  
• 
  In short, the AG is permitted to second-guess the outcome of a proceeding to which he was a party.
  
• 
  The SCC has held that this does not necessarily amount to an abuse of process Scott
  

s.39 CEA Cabinet Secrecy

• 
  Those charged with heavy responsibility of making government decisions must be free to discuss all aspects of the problems that come before them and to express all manner of views (all pros and cons, defamations, prejudices), without fear that what they read, say or act on will later be subject to public scrutiny Babcock
  
• 
  Cabinet confidentiality essential to good government. Right to pursue justice in courts is also primary importance, and rule of law, accountability of executive, and principle that official actions must flow from statutory authority clearly granted and properly exercised. But these can conflict Babcock McLachlin
  
• 
  CL a claim that deliberations of Cabinet should not be disclosed in legal proceedings is governed by same basic principles that govern other claims of public interest immunity: objection must come from a proper official and court has discretion to examine the information in question and determine whether disclosure is warranted Carey
  

(1) Where a Minister of the Crown or Clerk of the Privy Council objects to disclosure by certifying in writing which confirms that the info constitutes a confidence of the Queen’s Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information [extraordinary power, gov’t does balancing]
(2) “A confidence of the Queen’s Privy Council for Canada” includes, within 20 years of being created(4):

(a) Memorandum

(b) Discussion paper, except where made public or 4 years ago (4)

(c) Agendum or recording deliberations

(d) Record used for reflecting communications or discussions b/n ministers

(e) Record for briefing

(f) Draft legislation
Balancing under s. 39 CEA

The minister or Clerk of the Privy Council must decide two things:

1. Is the information a cabinet confidence under s. 39(1)?

2. Is it info the government should protect, considering competing interests in disclosure and retaining confidentiality?

A valid certificate under s. 39 must...

1. Be executed by the clerk or minister

2. Relate to information in 39(2)

3. Be done in bona fide exercise of power... not an abuse of discretion

4. Be done to prevent disclosure of previously confidential information... can’t be used to protect info already disclosed.

This is all the court can review

Limited Judicial Review

In Babcock, the Court holds that the judiciary can review a s. 39 certificate but only:

1. To make sure that it falls within the scope of the statute;

2. To make sure that the Clerk or the minister has not abused the discretion... that the certificate has not been issued in bad faith.

R v. Ahmad 2011 SCC

• 
  Terrorism prosecutions; SCC upholds Federal Court’s exclusive jurisdiction to decide national security privilege claims made in terrorism or other criminal trials
  
• 
  S.38 CEA is constitutional; was called a failure by Air India Inquiry
  
• 
  Provincial trial judges in terrorism or criminal prosecutions, faced with national security confidentiality claims, have had to adjourn the cases while Fed Court judges sort out privilege issues; condemned because it unnecessarily bifurcates trials, causes long delays, and may cause unfair trials, lets RCMP or CSIS say not answering on grounds of national security, so then trial process gets hijacked by Federal Court
  

Babcock v. AG Canada 2002 SCC

• 
  Vancouver lawyer wanting to know why Toronto lawyers get paid more in DOJ. Government certified that 51 documents contained confidences of the Queen’s Privy Council for Canada, though some documents previously listed as producible.
  
• 
  s.39 CEA does not apply to government documents already disclosed, nor does it apply to 5 certified documents in P’s possession or control; documents were disclosed by government in the context of litigation; so documents should be produced
  
• 
  s.39 does not offend rule of law, doctrine of separation of powers and independence of judiciary, is constitutional
  
• 
  Crown must be able to waive privilege, otherwise any litigant against Crown couldn’t rely on gov’t to produce documents
  
• 
  TEST To certify the information, Clerk must know:
  

1. 
   Is it Cabinet Confidence within meaning of s.39(1) and s.39(2)?
   

1. 
   Clerk must provide description of info sufficient to establish on its face that its within s.39: like S-C privilege, give date/title/author/recipient
   

2. 
   Is it info which gov’t should protect, taking into account competing interests in disclosure/confidentiality
   

1. 
   If Yes to Both, then s.39(1) protections apply, greater protection than CL
   

3. 
   Power exercised must flow from the statute and issued for bona fide purpose of protecting Cabinet confidences in the Public Interest
   

1. 
   If from evidence or circumstances, this power was used for purposes beyond s.39, certification may be set aside as unauthorized exercise of executive power Roncarelli
   

4. 
   To be valid, information cannot have already been disclosed
   

• 
  Protections from abuse are found in the litigation process.
  

• 
  Gov’t witness may be cross-ex’d on info produced and refusal to disclose information may permit a court to draw an adverse inference. RJR-MacDonald
  

Third Party Privacy: Protecting Privacy Without Privilege

• 
  Question of reproduction of records relating to 3Ps (ie complainants) is a problem of balancing accused’s s. 7 right to full answer and defence against 3P right to privacy and s. 15 right to equal benefit of the law
  
• 
  Often raised in sexual assault context; complainants historically treated almost like accused, used to have whole history blown open, now it’s hard to get to
  

O’Connor Disclosure Regime:

• 
  The O’Connor Regime is the procedure where:
  

1. 
   Record in possession of third party, and
   
2. 
   Accused is not charged with sex offence, or accused is charged with sex offence but disclosure sought is not a ‘record’ pursuant to s.278.1
   

Process for determining production of 3^rd party records (except complainants in sexual assault cases) O’Connor

1. 
   Establishing likely relevance
   
   1. 
      Court must decide whether document should even be produced to the judge for inspection
      
   2. 
      Exclusive Consideration: whether accused has established likely relevance
      
   3. 
      Burden is Low, on accused – though accused doesn’t know what is in the documents
      
   4. 
      Is there reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify?
      
      1. 
         Materiality possible where there is a "reasonably close temporal connection between" creation of records and date of the alleged offense
         
      2. 
         Materiality possible when “reasonably close temporal connection between” decision to bring charges against accused
         
         • 
           Contain info concerning unfolding events underlying the complaint
           
         • 
           Reveal use of therapy which influenced complainants memory of the alleged events
           
         • 
           Complainants credibility shown: quality of perception at the time and their memory since
           
2. 
   TJ looks at document to decide if it should be produced, in whole or in part, to accused, balancing salutary and deleterious effects of production and asks if non-production would be reasonable limit on full answer and defence
   
   1. 
      Should consider:
      
      1. 
         Extent to which record is necessary to making full answer/defense
         
      2. 
         Probative value of record in question
         
      3. 
         Nature/extent of the reasonable expectation of privacy vested in that record
         
      4. 
         Whether production of the record would be premised upon any discriminatory belief or bias
         
      5. 
         Potential for prejudice to complainant's dignity, privacy, or security of the person that would be occasioned by production of the record
         
3. 
   If they are relevant, they will probably be disclosed
   

Mills Regime:

• 
  Use when disclosure is sought for a 3P record of complainant as defined by s.278.1 in sexual assault cases
  
• 
  Defining a ‘record’ s.278.1 CC:
  

• 
  Any record containing personal info for which there is reasonable expectation of privacy, including
  

1. 
   Medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records
   
2. 
   Personal journals and diaries
   
3. 
   Records containing personal info the production of which is protected by any other Act
   
4. 
   Doesn’t include records made by persons responsible for investigation or prosecution
   

• 
  Non-disclosure Rule s.278.2 (1): “Records” not disclosed except in accordance with this procedure even if record in possession of crown or police unless witness consents
  

Process for determining production of 3^rd party records of complainants in sexual assault cases (Mills)

ss. 278.1 to 278.9 Code, enacted after O’Connor, mirrors dissent

1. 
   Establishing "likely relevance" s.278.5
   
   1. 
      Application must be in proper form
      
   2. 
      Records must be likely relevant
      

1. 
   11 bases upon which an assertion without more evidence is insufficient s.278.3(4)
   

1. 
   Production of record must be necessary in the interests of justice s.278.5(1)(c)
   

1. 
   8 factors to take into account s.278.5(2)
   
2. 
   Unlike O’Connor, balancing analysis is really done here
   

1. 
   Shifts onus and a higher threshold of relevance:
   
   1. 
      The information is not part of the state's "case to meet" nor has he state been granted access to the information in preparing its case
      
   2. 
      3P have no obligation to assist the defence
      
1. 
   Repeat the balancing after judge has seen the records s.278.7
   
   1. 
      Judge looks at records and assesses whether they should be produced to accused
      
   2. 
      s. 278.7(2) requires judge to balance accused's right to make full answer & defence, right to privacy and equality of the complainant/witness, other person records relate to, in light of the 8 factors in s.278.5(2)
      
   3. 
      Can impose terms and conditions upon disclosure
      

R. v. O’Connor

• 
  Facts: O’C was bishop prosecuted for sexual abuse while priest/teacher at residential school, trial judge made wide order for disclosure to get records from therapists, crown not happy
  
• 
  SCC distinguishes crown disclosure, and fact that it has no obligation to disclose anything not in its possession
  
• 
  Court establishes framework, since abrogated for sexual assault complainants, but relevant for other 3Ps
  

R. v. Mills

• 
  Court considers validity of s. 278.1-279.9 of Code, enacted after O’Connor, find it constitutional
  

Implied Undertakings

Juman v. Doucette

• 
  Group home owner/foster mother sued for allegations of abuse of kids in her care; litigation settled without discovery material being tendered in court or made public in trial
  

• 
  Could gov’t party disclose to police the contents of that material which would have shown criminal conduct on her behalf
  
• 
  Crown said no requirement on receiving party to maintain implied undertaking if there’s criminality or public safety issues by not disclosing;
  
• 
  Court rejected that, said in situations of public safety there may be something so serious and immediate that party can disclose info, like Smith and Jones public safety exception to S-C privilege; otherwise undertaking applies and you must apply to court to have it set aside, depends on facts of case, obligation on recipient of info who wants to use material for purpose unrelated to litigation
  

• 
  Both documentary and oral info obtained on discovery, including info thought by one of parties to disclose some sort of criminal conduct, is subject to implied undertaking
  
• 
  Not to be used by other parties except for the purpose of that litigation, unless and until the scope of the undertaking is varied by a court order or other judicial order or situation of immediate and serious danger
  
• 
  Rationale:
  

• 
  Invasion of privacy: Public interest of getting at truth in litigation supersedes privacy interest in material, but only to extent totally necessary to conduct litigation; Answers, documents required to be given, compelled by statute; but where there is compulsion to produce/disclose/testify generally the court wants to craft co-terminus right to limit use of that or prejudice to other side
  
• 
  Truth seeking function of litigation will only be advanced if party giving discovery accepts that discovery material won’t be misused, so they will make full disclosure and fulfil public interest
  

• 
  Balancing required; if you wish to have implied undertaking set aside, you must demonstrate superior public interest in doing so, that should only be done in exceptional circumstances; also may set aside where evidence in prior disclosure is inconsistent with statements made in course of subsequent proceeding, you can’t hide and tailor your evidence when truth will be found in discovery (contradictory testimony)
  

R v. Basi 2011 BCSC

• 
  Implied undertaking in criminal context: accused who receives disclosure material pursuant to Crown’s Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in proceeding
  
• 
  Undertaking flows as necessary implication from the limited purpose for which the recipient has been given access to the documents
  
• 
  Gave special info in bidding process to BC Rail; accused wanted to use material for other purpose, court found implied undertaking, not ok for accused to use material for other purpose
  
• 
  Affects Crown Disclosure: you’re entitled to full disclosure but only for your criminal trial, and at end material should be returned to crown
  

Privilege Against Self-Incrimination

s.5 CEA No witness privilege, but there is witness protection

1. 
   No witness shall be excused from answering any question on the ground that the answer may tend to incriminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person
   
2. 
   If witness objects to answer on ground that answer may incriminate him or establish his liability in civil proceeding… and [would have been excused from answering at CL] the answer so given shall not be used or admissible in evidence against him in any criminal trial against him thereafter taking place, other than prosecution for perjury in giving that evidence or giving contradictory evidence
   

• 
  “Use Immunity”: if required to give an answer, it can’t be used against you later
  
• 
  Note: must invoke this section to gets its protection; if you don’t object to answering you’re not covered
  
• 
  At CL, privilege to refuse to answer that would incriminate: if compelled to testify, it would be unfair if under compulsion and potential sanction for not testifying/giving false evidence when forced
  

s.4(2) and (3) BCEA: Same as CEA, but extends to all provincial jurisdiction in civil or criminal, and “any proceeding under any act”; also must claim this section
s. 13 Charter Privilege against self-incrimination for witnesses testifying at trial of another

• 
  A witness who testifies in any proceedings has right to not have an incriminating evidence given at that proceeding used in a subsequent proceeding, except in a proceeding of perjury
  
• 
  It’s the Charter, so you don’t have to claim it or object; usually just use this instead of s.5 CEA
  
• 
  Henry is main case to know – clarifies s. 13 applicability
  

s.7 Charter: everyone has right to life, liberty, security of person and right not to be deprived thereof except in accordance with PFJ i.e. covers where s.13 doesn’t with prior compelled evidence; not clear, case law all over the place

• 
  In limited circumstances, s.7 may provide the following protections against self-incrimination:
  
• 
  S.7 exemption cases: Is predominant purpose for obtaining earlier evidence to incriminate in current case?
  

1. 
   Use Immunity: to incriminate
   
2. 
   Derivative use immunity: if you uncover other evidence that would incriminate, that discovered evidence ex. Testimony of witness you wouldn’t have known about except for compelled testimony; s.7 can provide further protection so you aren’t compelled to testify against self
   
3. 
   Constitutional exemption: ex. In Immigration, by virtue of s.7 you can be exempted from answering some Q’s
   

Dubois 1985

• 
  Facts: D charged with murder and claimed self defence; testifies at his first trial, but not at second, crown uses testimony from first trial at second; Judge let Crown read in testimony from 1st trial in 2nd
  
• 
  Can’t do that – amounts to compelling accused to testify against himself in breach of s. 13; testimony from 1st trial can’t be part of crown’s case, when they used evidence he didn’t wish to give at 2nd trial, they were in effect compelling him to testify
  
• 
  This is still good law after Henry
  

Mannion 1986

• 
  Facts: M accused chose to testify at first and second trial (not compellable by crown), crown cross-examines on statements made at first trial, to test his credibility and to establish his guilt; M says this violates s. 13
  
• 
  At time, court says crown couldn’t use statements from first trial, shouldn’t have been used for proof of truth of contents i.e. establish guilt – since overturned by Henry: accused chose to testify both times without compulsion, so his credibility can be tested, and to extent that Crown can argue prior testimony is evidence like an admission that can be used against him, it goes to his guilt not just credibility
  

Kuldip 1990

• 
  K testified at 1st and 2nd trial, crown wanted to cross examine K on testimony at trial 1 to challenge credibility
  
• 
  This was allowed, but only for purpose of impeaching credibility (allowed), not to proving inconsistencies, not to incriminate – can only use to “nullify” K’s testimony
  
• 
  In part this has been overturned by Henry: again it can actually be used for credibility and incrimination
  

Allen 2003

• 
  Accused testifies as crown witness at first trial of other accused, and as court’s witness at trial of second co-accused, then testifies at own trial; crown used earlier testimony to impeach accused
  
• 
  Cross-ex included admissions he thought he killed victim
  
• 
  S.13 violated, no cross-ex allowed, danger that prior testimony could be used to incriminate
  
• 
  Like Noel, prior proceeding he was compelled so next proceeding can’t use that testimony at all
  

Noel 2002

• 
  Facts: N and brother charged, N compelled to testify at brothers trial as ordinary witness, has very low IQ; admits at brother’s trial to being accomplice in homicide; at own trial he testifies, where charged separately from brother; Crown said using just to prove lack of credibility but the cross-ex was so intense that jury would have thought that because of admissions at prior trial he was guilty, not just non-credible; crown then wanted to use statements from that trial at N’s own trial as the accused
  
• 
  Henry says: This is classic case of what s. 13 is protecting accused from; prior testimony compelled and not admissible in subsequent proceeding for any purpose, including impeaching credibility, and incriminating
  
• 
  Accused can only be cross-ex on prior testimony where there’s no realistic danger his prior testimony could be used to incriminate; given extent of ferocious examination at noel’s own trial the only purpose of exam could have been to incriminate not discredit
  

Henry 2007

• 
  Facts: similar to Mannion and Kuldip, H testified at trial one and then also at trial two, using new and improved facts at second one; crown cross-ex first testimony to impeach credibility; H wanted to keep trial 1 testimony out
  
• 
  Court makes changes:
  
  • 
    Dubois stays intact, Mannion and parts of Kuldip overruled
    
  • 
    Noel stands
    
• 
  The distinction is between compelled testimony
  
• 
  Where accused chooses to speak at second trial, the risk of compulsion is not there, even through second trial is considered a separate proceeding
  
• 
  S.13 doesn’t give you right to give a bunch of false, inconsistent testimony in hopes that sometime later it will be successful, defeats search for truth
  

1. 
   If accused does not testify at his trial, his testimony at earlier proceeding can’t be used against him at trial whether accused or merely witness at earlier
   
2. 
   If accused does testify at his trial, his testimony from earlier proceeding can’t be used against him at that trial if he was compellable (not compelled) as witness at earlier
   
3. 
   If accused does testify at his trial, testimony from earlier proceeding can be used to cross-ex him at that trial provided he was not compellable as witness at earlier proceeding
   

R v. Nedelcu SCC Nov 7, 2012 – Back to Square 1, thanks Justice Moldaver

• 
  N took victim for ride on motorcycle; crashed into curb, causing victim permanent brain damage
  
• 
  N charged with dangerous driving causing bodily harm, also civilly sued
  
• 
  During examination for discovery, N testified he had no memory of events from day of accident
  
• 
  But at criminal trial, N gave detailed account of events leading up to and during accident, blaming victim
  
• 
  Crown counsel permitted to cross-ex N on his discovery evidence; N said “I have recollection of about 90-95%”
  
• 
  N’s trial testimony found unreliable and he was found guilty of dangerous driving
  
• 
  Judgment: s.13 doesn’t apply to just any evidence the accused may have been compelled to give at previous proceeding
  

• 
  Henry said too tough to say you’re using evidence to test credibility or incriminate; read out s.13 first “incriminating”, to just say any compellable witness can’t have any evidence used against for any purpose, avoids problems… which SCC is bringing up again in this new case!
  

• 
  It only applies to Incriminating evidence (compellable or not) from prior proceeding
  
• 
  Incriminating evidence: crown could use at subsequent proceeding, if permitted, to prove witness’s guilt on there
  
• 
  Time to determine whether it’s incriminating is when Crown seeks to use at subsequent proceeding: even if clearly not incriminating when given at first instance, look at trial circumstances now
  
• 
  Using Nedelcu’s prior discovery evidence merely to test credibility doesn’t convert it into incriminating evidence
  

R v. S (RJ)

• 
  Derived from compelled testimony: couldn’t have been obtained, or significance not appreciated, but for testimony of witness, ought to be immune from subsequent use
  
• 
  Not self-incriminatory as being created by accused; but self-incriminatory because couldn’t otherwise have become part of Crown case
  

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