Careful With Those Notes: Purpose Affects Privilege

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Notes taken after an event can lose privilege if they are used to refresh a witness’s memory, a recent Ontario Court of Justice decision suggests.

In R. v. Sachkiw, 2014 ONCJ 287 (CanLII), a defendant facing charges of refusing to provide a breath sample testified that he had made notes after the incident. He read the notes to prepare for trial, on the date he testified.

Justice Nancy Dawson found that the accused had used the notes to refresh his memory, and therefore litigation privilege was lost, or waived. 

At trial, during Crown cross-examination, the accused said he had made notes the day after his involvement with police, on advice from a relative. The Crown asked that the notes be produced for the purpose of cross-examination, because the notes had not been made pursuant to a request by counsel or in consultation with counsel.

    Reliance on Document Could Make it ‘Evidence’

Crown counsel took the position that, as a rule of thumb, where a witness uses a memo to refresh their memory the opposing counsel has the right to look at the document relied on by the witness, because it forms inferential evidence.

The defence argued the notes had been made in contemplation of litigation, and in contemplation of getting legal advice and to assist in preparation for a trial. According to defence submissions, full disclosure is not a reciprocal duty, referencing Justice Harper in R. v. Nesbitt, R. v. Peruta; and R. v. Brouillette, 1992 CanLII 3599 (QC CA), [1992] 78 C.C.C. (3d) 350 (Q.C.A.).

Justice Dawson held a voir dire on the issue of whether the notes were protected by litigation privilege. She found:

When the accused chooses to refresh his memory from notes to which litigation privilege would otherwise apply prior to taking the stand, the Crown is entitled to see such notes subject to the court’s discretion. An accused person who has prepared notes to refresh their memory and uses those notes to the refresh their memory prior to testifying has waived any litigation privilege attached to those notes. It is important that the opposing party have the opportunity to test the memory of events and expose inaccuracies in memory.

I have determined that the probative value of providing the notes to the Crown outweighs the prejudicial effect of such disclosure. The production of the notes will assist in the fact finding process and assessment of Mr. Sachkiw’s evidence.

The Sachkiw decision could affect paralegal scope-of-practice cases, including employment law, small claims and provincial offences. For example, if a supervisor uses notes taken after a workplace accident to refresh his memory before testifying at a hearing, those notes may lose the litigation privilege that would otherwise protect them.

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