R. v. Ryan, 2018 CM 2017

COURT MARTIAL Citation: R. v. Ryan , 2018 CM 2017 Date: 20180510 Docket: 201744 Standing Court Martial Canadian Defence Academy Kingston, Ontario, Canada Between: Lieutenant(

N) B. Ryan, Applicant - and - Her Majesty the Queen, Respondent Before: Commander S.M. Sukstorf, M.J. Restriction on publication: By court order made under

section 179 of the National Defence Act and

section 486.4 of the Criminal Code , information arising in this trial by Standing Court Martial that could identify any person who is described during these proceedings as a complainant shall not be published in any document or broadcasted or transmitted in any way. DECISION ON FURTHER DISCLOSURE APPLICATION (Orally) Introduction and background [ 1 ] On 20 June 2017, the prosecution preferred one charge punishable under

section 130 of the National Defence Act ( NDA ) alleging an offence contrary to

section 271 of the Criminal Code for sexual assault and a second charge punishable under

section 130 of the NDA alleging an offence contrary to

section 262 of the Criminal Code for criminal harassment. On 25 April 2018, the Court Martial Administrator (CMA) issued a convening order for the accused to appear before a Standing Court Martial in Kingston, Ontario on 8 May 2018.

The application [ 2 ] On 27 April 2018, counsel for Lieutenant(

N) Ryan provided the CMA with notice, under Queen’s Regulations and Orders for the Canadian Forces

article 112.04, of his intention to bring an application pursuant to

section 187 of the NDA seeking to obtain disclosure of documents in the possession of the Crown, in particular, “[t]he information requested to be disclosed in the email from [defence counsel to the prosecution] dated 9 April 2018, as set out in Exhibit “B” to the statutory declaration of Phyllis Nadeau dated 27 April 2018.” His application for disclosure is brought in aid of his application to stay proceedings on the basis of police misconduct and pre-charge delay. [ 3 ] In his disclosure application, the applicant states: (

a) The prosecutor has known since 12 January 2018 that Lieutenant(

N) Ryan would be making an application to stay these proceedings due to pre-charge delay and abuse of process. (

b) On 9 April 2018, Lieutenant(

N) Ryan requested further disclosure, some of which appeared to have been deleted from the military police (MP) report General Occurrence (GO) #2013-27940. (

c) On 19 April 2018, the prosecution refused to provide most of the requested disclosure, subject to his further review. (

d) On 20 April 2018, Lieutenant(

N) Ryan filed an application to stay these proceedings. The statutory declaration of Phyllis Nadeau dated 19 April 2018 was filed at the same time. Most of the requested disclosure is referred to in that statutory declaration. (

e) On 24 April 2018, the prosecution provided some of the information which appeared to have been deleted from the MP report, but maintained his refusal to provide most of the requested disclosure. (

f) Much of the prosecution’s reasons for refusing to provide disclosure has been “purely administrative correspondence and/or police working file; not part of the investigative file/fruits” or “administrative correspondence. Substance already disclosed.” (

g) The steps that the Canadian Forces National Investigation Service Western Region (CFNIS WR) took, or did not take, when and why are exactly what is in issue in the application to stay the proceedings; (

h) Another of the prosecution’s reasons for refusing to provide disclosure is solicitor-client privilege. In some documents, solicitor-client privilege was asserted in writing on the document as grounds for the redaction. In others, text from the MP report appeared to have simply been deleted and no grounds for the deletion were provided on the document.

The apparent deletions from some of these documents were subsequently disclosed, revealing that statements like “MCpl Turcotte would be requesting a legal review of the file. . .” and “. . .which is waiting for legal review. . .” was the missing text, one could suspect, ostensibly on the grounds of solicitor- client privilege. On one of the documents where the text appeared simply to have been deleted, the prosecution now states that it is subject to solicitor-client privilege.

On the other documents, the redactions that were purportedly made on the grounds of solicitor-client privilege are considered suspect, and should be reviewed by the court to determine if it falls within the privilege; (

i) The dates when entries were made into the two MP reports are relevant to determining the fact of when the entry was made. There are two versions of the MP report GO#2013-27940, one with 294 pages (“the first GO”) and one with 887 pages (“the second GO”). There are entries that appear in the second GO, which if the entry had been made on the date when the second GO states they were made, should have appeared in the first GO, but they do not; and (

j) Any orders or directions, whether given as a result of the Globe and Mail ’s investigation and/or media reporting of unfounded sex assaults, or the Deschamps Report , or not, that were given directing file reviews that resulted in this investigation being reviewed and reopened are relevant to determining why the CFNIS WR made those decisions.

[4] Although I have considered the materials and counsel’s detailed submissions on this application carefully, the Court will notaddress each request individually. Rather, the Court will address the application at a broader level by deciding on the disclosure issuesbased on the nature of the disclosure requests. In short, the applicant requested the Court to consider twenty requests for disclosure thatthe Court breaks into three broad categories: (

i) Information requested, but subsequently disclosed, (ii) Information where prosecutionclaims privileged; and (iii) Documents not in the control of the prosecution. [5] With respect to the first category, the prosecution has since disclosed five of the items and defence has accepted that one itemwas, in fact, just a blank page. The Court is no longer required to assess these items. [6] Under the second category, there are six items over which the prosecution claims privilege.

Two of these requests sought thenames of prosecutors who provided legal advice to the investigators at various stages of the investigation; and four requests relate tocommunications where the prosecution asserts overlapping privilege being solicitor-client privilege or a combination of Crown workproduct privilege and/or exercise of prosecutorial discretion.

The Court noted that two of these requests are duplicative which means thatthere are really three requests for communications that the prosecution claims are protected by overlapping privilege that need to bereviewed. [7] With respect to the last category of requests, there are eight items. The prosecution does not assert privilege; however, it advisedthe Court that seven of these items are not in their possession and they are unable to retrieve them as the member who sent the emails hasbeen released from the Canadian Armed Forces and they have been unable to retrieve his former email.

They have undertaken to followup on one of the email requests to see if a witness may still have a copy of the email in question. The remaining item is the defence’srequest for any orders or directions, whether given as a result of the Globe and Mail’s investigation and/or media reporting of unfoundedsexual assaults or the Deschamps Report, where anyone may have given direction that resulted in this investigation being reviewed andreopened or are relevant to determining why the CFNIS WR made those decisions. Issue [8] Are the redacted notes relevant or subject to privilege?

Of those materials subject to solicitor-client privilege, on the facts of thecase at bar, can the presumption of inadmissibility be challenged? Position of the applicant [9] The applicant submits that disclosure of the above-mentioned items is relevant to its application seeking a stay of proceedingsbased on an abuse of process and pre-charge delay. He alleges that due to a negligent and abusive police investigation, and the significantdelay prior to him being charged prejudiced his ability to make full answer and defence.

He alleges that the police engaged in conductthat glossed over their negligent investigation to make it appear that there were valid reasons for reopening the investigation. In his oralarguments and written submissions, he clearly established the evidence he seeks, leaving it to the prosecution to justify privilege. Insummary, he asserts that the disclosure he seeks is fundamental to his abuse of process application; he wishes to understand theirdecision that led to the reopening of the investigation.

Position of the respondent [10] The prosecution has argued that it has disclosed all material that is relevant, not privileged and within its control. They concedethat, in the case at bar, the innocence at stake test could lead to disclosure where a Canadian Charter of Rights and Freedoms breach isalleged and an application for a stay of proceedings is filed. However, they argue that the applicant has met neither the threshold test northe innocence at stake test as set out by the Supreme Court of Canada (SCC) in R. v. McClure, 2001 SCC 14 , [2001] 1 S.C.R.445.

They further assert that although efforts have been made to obtain the emails requested, the prosecution does not have access to theoutstanding email items as listed in Exhibit PP3-2, Annex C, since they were not printed before the member released.

However, theyargue that the substantive information relevant to the investigation was included in the GO reports and that the accused is entitled to thedisclosure of substantive information and not to disclosure in a particular format. [11] The prosecution concedes that the redactions to some of the documents were not done in accordance with standard practices andunderstands the defence’s concern and queries regarding what appears to be deleted text. However, they further assert that the suspicionthat these errors caused should not overtake the claim of privilege.

Analysis [12] It is important to begin the analysis with reference to the decision of Sopinka J in R. v. Stinchcombe, (SCC),[1991] 3 S.C.R. 326 and the duty, which is derived from

section 7 of the Charter of the right of the accused to make full answer anddefence, and the duty of the prosecution to disclose to the defence all relevant information. It does not matter whether the prosecutionplans to call that evidence or if the evidence hurts the prosecution’s case.

Justice Sopinka stated at paragraph 22: The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonablepossibility that the withholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege. [13] In short, the basic principle is that no information should be withheld from the defence if there is a reasonable possibility that thewithholding of the information will impair the right of the accused to make full answer and defence.

However, this principle is alsosubject to the law of privilege which requires the exercise of discretion by the Crown as to what information should or should not bedisclosed. [14] The SCC in R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727 amplified the procedural structure of the principles setout in the Stinchcombe decision. The defence’s application identified the specific material in existence that it sees as relevant and oughtto have been produced.

In situations where the existence of certain information has been identified, the Crown must justify non-disclosure by demonstrating that the information sought is beyond its control, or is clearly irrelevant or privileged: Chaplin at paragraph25. [15] This Court afforded the prosecution the opportunity to call evidence to justify its position. The prosecution made oralsubmissions and provided the Court with case law upon which it relied in not disclosing the redacted portions.

In fact, since theprosecution had the onus to establish privilege, the prosecution provided detailed descriptions of the nature of the privilege claimed, aswell as explanation as to why some of the correspondence, which was outside their control, was unavailable. Assessing those requests where prosecution asserts privilege [16] As discussed earlier, the prosecution has asserted privilege over six items in the applicant’s request. There are a number ofdifferent types of privilege claimed. In short, there are: (

a) two requests for the name of the prosecutors who provided legal advice to the CFNIS during their investigation; (

b) four requests for materiel where the Crown asserts privilege; Upon review, it was determined that two items wereduplicative. Hence, only three claims of privilege were considered. Two requests for the name of the prosecutors who provided legal advice [17] As a preliminary step, I assessed whether the two requests seeking the names of the prosecutors providing legal advice to thepolice were relevant.

The law is clear; the Crown is required to disclose to the defence all relevant information in its possession orcontrol. “While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant” (Stinchcombe at page 339).Relevancy for disclosure purposes must be assessed in regard to its usefulness to the defence and, as such, a contextual view of theinformation is important.

Relevant information includes any information where there is a reasonable possibility that it may assist theaccused in the exercise of the right to make full answer and defence (Stinchcombe, paragraph 21; see also Chaplin, paragraphs 26-27). [18] Relevancy must be given a generous

interpretation. If it is of some use, then it is relevant and should be disclosed. The applicantargued that the names of the prosecution are potentially relevant. He argued that there was a lengthy investigation conducted by thepolice, which was closed based on insufficient evidence and a letter was sent to confirm that the investigation was closed. However,shortly thereafter, the Deschamps Report was released and then, for some reason, the file was reactivated. He states that the recordsshow that Major King asked the investigators to go back to the complainant and ask a series of additional questions. Whether or not the

identity of the prosecutor providing advice at each stage is covered by solicitor-client privilege is a secondary issue. Unfortunately, atthis stage of the process, the applicant was unable to convince the Court how having the names of the prosecutors would assist his case.Hence, the court concluded that it is speculation at this time and advised counsel, before it closed to consider this application, that itwould not consider the disclosure of the names of the prosecutors as the relevancy was not yet clear, but the Court would be prepared toconsider it at a later stage, should that change.

Three requests for disclosure where the prosecution asserts privilege [19] With respect to the three remaining requests for disclosure, the Crown asserts the following overlapping privileges: (

a) solicitor-client privilege, Crown work product privilege, prosecutorial discretion. Exhibit PP1-3, Tab 66: GO #2013-27940, page 212 of 887, paragraph 2, Major King’s entry Prosecution, in oral submissions, suggested content related to timing of legal advice sought and received, with recommendations orrequirements; (

b) solicitor-client privilege, prosecutorial discretion. Exhibit PP1-3, Tab 88: GO #2013-27940, page 588 of 887, Sergeant Duckworth’s entry; Exhibit PP1-3, Tab 90: GO #2013-27940, page 591 of 887, Sergeant Duckworth’s entry; Prosecution submits that content relates to date and time of communication between investigator and regional military prosecutor (RMP)and may include advice and evidence on charges or investigative steps; (

c) solicitor-client privilege, Crown work product, prosecutorial discretion. Exhibit PP3-2, “Exhibit H”: GO #2013-27940, page 703 of 887, image of page 6-7 of Master Corporal Ferris’s field book Prosecution submits that content relates to seeking and provision of legal advice as well as requests and investigative steps. The law [20] The prosecution has asserted solicitor-client privilege, work product privilege and/or prosecutorial discretion (public interestimmunity) over the three requests.

The fact that solicitor-client privilege exists between the prosecution and the military police is nolonger in question: see R. v. Basi, 2008 BCSC 1858 (Basi 1), (referring to R. v. Campbell, (SCC), [1999] 1 S.C.R. 565,(sub nom. R. v. Shirose) 133 C.C.C. (3d) 257. In two of the requests, the court finds that the CFNIS WR consultations with theprosecution appear to have been for the purpose of obtaining legal advice on various areas of their investigation.

In the third request,where the applicant sought the text deleted at paragraph 2 of Exhibit 66, the consultations with the prosecution are not as obvious.However, in his oral submissions, the prosecution explained that the specific paragraph addresses the details as to when legal advice wassought and received and provides some detail of that advice, recommendations and requirements. The prosecution argues that it iscovered by solicitor-client privilege, Crown work product and prosecutorial discretion. [21] It is important to note that not all of the assertions of privilege carry the same weight in jurisprudence.

The test for assessingwhether the request can be disclosed is dependent on the actual privilege asserted.

Prosecutorial discretion [22] Justice Bennett in R. v. Basi, 2009 BCSC 772 (Basi 2) aptly summarized the law that supports the protection of prosecutorialdiscretion. At paragraphs 40 and 41, she writes: [40] The final legal issue turns on the question of prosecutorial discretion and whether that information can be disclosed. The law iswell-established in terms of the protection of the decision-making process of the Crown. The exercise of the discretion of the Crownhere to charge Mr. Basi with the drug charges and later to stay the proceedings of these charges can only be challenged where there isconspicuous evidence of improper motives or bad faith or of

an act so wrong that it violates the conscience of the community such that itwould genuinely be unfair and indecent to proceed: R. v. Power, (SCC), [1994] 1 S.C.R. 601, 89 C.C.C. (3d) 1 at 10. [41] The question of disclosure of documents in relation to allegations of abuse of process has been discussed in several decisions. InR. v. Murrin, 1999 CarswellBC 3197 (S.C.), Mr. Justice Henderson set the test for disclosure as a "real and substantial possibility of badfaith or improper motives on the part of Crown counsel": See also R. v. Malik, 2002 BCSC 1679; R. v. Pal, 2007 BCSC 44, 228 C.C.C.(3d) 212; and R. v.

Ciulla and Ciancio, 2008 BCSC 227. I will refer to this as the prosecutorial discretion rule for the sake of simplicity. The Court noted that the applicant has not asserted any bad faith or improper motive on the part of the prosecution. Crown work product privilege [23] Justice Sulyma in R. v. Chan, 2002 ABQB 287 describes the nature of work product in the criminal context at paragraph 96: [96] In the criminal context "work product" generally includes, but is not limited to: 1. Crown counsel's notes on a file; 2. Crown counsel's memoranda on a file; 3. Correspondence; 4. Crown counsel's opinion; and 5.

Trial strategy. Stewart; Derose; Mah [97] The opinions of Crown counsel protected by work product privilege are not limited to opinions of law, but cover opinions ofthe case in general, including those relating to a witness's credibility and the strength of the case: Report of the Attorney-General'sAdvisory Committee on Charge Screening, Disclosure and Resolution Discussions (Toronto: Queen's Printer for Ontario, 1993) ("MartinReport"); R. v. Brown [Disclosure], [1997] O.J. No. 6163 (QL) (Ont. Ct. (Gen.

Div.)) [summarized 45 W.C.B. (2d) 418]; United States v.Nobles, All U.S. 225 (1975) (U.S.S.C). [24] In Chan, Sulyma J concluded that work product privilege is not a subset of solicitor-client privilege:

[54] Having considered the policy reasons for these two types of privilege and the consequences which flow from categorizing them as class or case-by-case privilege in terms of the exceptions which apply to the privilege, I have concluded that work product privilege, while arising from the solicitor-client relationship, is not a subset of solicitor-client privilege but rather is a qualified privilege as that term is used by Binder J. in Trang #2 .

The only true privilege which falls within the class of solicitor-client privilege is legal professional privilege. [emphasis added] [ 25 ] After conducting a thorough analysis of the law comparing work product privilege with solicitor-client privilege in Basi 1, Bennett J clarified: [59] [I]t is clear from Blank that the privilege does not carry the substantive force of law that is entrenched in the solicitor-client privilege. Indeed, the privilege may fall if there are abuse of process allegations: see para. 45. [60] I have considered the comments of Fish J. at paras. 56 and 57.

I do not see him suggesting that the innocence-at-stake test must be met in the context of litigation privilege before the privilege is set aside.

Indeed, he seems to suggest that in Blank the Crown may have been bound to produce documents that were otherwise subject to litigation privilege. [61] I conclude, on reading the entirety of the decision, and placing emphasis on the difference between solicitor-client privilege and litigation privilege as discussed within that case, including the fact that litigation privilege expires, that communications covered by litigation privilege may well be subject to disclosure, if disclosure is required to meet the constitutional requirement of full answer and defence, a standard lower in my view than innocence-at-stake. [62] I am affirmed in this conclusion by the decision of the Prince Edward Island Court of Appeal in Llewellyn v.

Carter , 2008 PESCAD 12 , 278 Nfld. & P.E.I.R. 96 , where the Court found that litigation privilege could be limited by Rules of Court . Clearly, as a rule of law solicitor-client privilege could not be so limited. [63] In

summary, if the document is made for the dominant purpose of litigation, then the litigation privilege will apply in criminal cases, subject to the right of the accused to argue that production is necessary on the basis of his or her need to make full answer and defence. [64] The Stinchcombe test does not apply, as Stinchcombe held that privilege was an exception to the disclosure requirements.

The question will be whether the: ... recognition of an existing privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus require disclosure in spite of the law of privilege. Stinchcombe at 340; Blank at para. 56. [ 26 ] The distinction between solicitor-client privilege and Crown work product is important. As noted in McClure (see paragraphs 27, 45-47 ), solicitor-client privilege is so cherished that the presumption of inadmissibility may only be challenged if the innocence of the accused is at stake.

However, this may only be done when a stringent test is met ( McClure test). Analysis [ 27 ] In order to satisfy the Court, the prosecution must prove that there is a prima facie case for their claim to solicitor-client privilege, which it did when it provided a detailed

summary of what the various correspondence engaged (see R. v. Polo , 2005 ABQB

250 at paragraph 31). The applicant has not argued or questioned the impropriety of the prosecution, but rather his abuse of processapplication is focused on the actions of the police, being CFNIS WR. As such, absent any challenge for bad faith or improper motive onbehalf of the prosecution, the Court did not review this assertion of prosecutorial discretion at a deeper level. [28] In all three cases, the prosecution asserts overlapping privilege which is not easy to unravel. In assessing cases of overlappingprivilege, relying upon Blank v.

Canada (Department of Justice), 2006 SCC 39 , [2006] 2 S.C.R. 319, Bennett J in Basi 1clarified: [27] [A]s pointed out in R. v. McClure, at para. 36, not all communication between a lawyer and a client is protected by solicitor-client privilege. In order for the communication between the lawyer and the client to be privileged, it must relate to the client seekinglawful legal advice: see also Solosky v.

Canada (1979), (SCC), [1980] 1 S.C.R. 821 at 835-836, 50 C.C.C. (2d) 495. [28] Advice that is non-legal in nature, such as business advice or policy advice, is not protected by this privilege. [29] Some of the documents are overlapping in that both solicitor-client privilege and litigation privilege are being claimed. [30] In Blank v.

Canada (Department of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319 at paras. 49 - 50, the Court said this regardingoverlap between solicitor-client privilege and litigation privilege: [49] Second, access will not be uncontrolled because many of the documents in the lawyer’s brief will, in any event, remain exemptfrom disclosure by virtue of the legal advice privilege. In practice, a lawyer’s brief normally includes materials covered by the solicitor-client privilege because of their evident connection to legal advice sought or given in the course of, or in relation to, the originatingproceedings.

The distinction between the solicitor-client privilege and the litigation privilege does not preclude their potential overlap ina litigation context. [50] Commensurate with its importance, the solicitor-client privilege has over the years been broadly interpreted by this Court.

Inthat light, anything in a litigation file that falls within the solicitor-client privilege will remain clearly and forever privileged. [31] I also accept the argument that, where the litigation-privileged information is so intricately woven in with the communicationthat is protected by solicitor-client privilege, the solicitor-client privilege must prevail and will encompass that over which litigationprivilege is claimed. [32] Where the solicitor-client privilege can be extricated from the litigation privilege, then the information over which litigationprivilege is claimed will be assessed on that basis only: see also R. v.

Ahmad (2008), (ON SC), 59 C.R. (6th) 308 atparas. 91 – 92 (Ont. S.C.J.). (see also R. v. Belcourt, 2012 BCSC 234 at paragraph 17) [29] Nonetheless, based on the assertions of prosecution and the details provided, it is evident that the Crown work product and eventhe prosecutorial discretion are “intricately woven in with the communication that is protected by solicitor-client privilege” and, as such,solicitor-client privilege must prevail and the Court’s analysis must be based on the McClure test for the disclosure of solicitor-clientprivilege materials.

The underlying premise is that court should not compel the Crown to disclose privileged material unless it isabsolutely vital and its disclosure is necessary to establish the innocence of the accused. McClure test [30] Justice Major, writing for the SCC in McClure, established a procedure or test for determining when solicitor-client privilegemust yield to the accused’s right to make full answer and defence. Relying upon R. v. Cresswell, 2000 BCCA 583 in R. v. Rutigliano,2013 ONSC 6589 at paragraph 124 as well at paragraph 78 of Chan, Sulyma J found that the test for innocence at stake was also

relevant for an application for a stay of proceedings. [78] In R. v. Cresswell (2000), 2000 BCCA 583 , 149 C.C.C. (3d) 286 (B.C.C.A.), Madam Justice Ryan stated at p. 302: … [I]nnocence at stake includes defending a charge on the basis that the unfair treatment of the accused disentitles the Crown to carry onwith the prosecution of the charge or charges. Although the accused is the moving party and bears the onus of proving that a stay oughtto be granted, the application for the stay, is nevertheless, in the words of Caulfield in R. v. Barton, supra, an "answer to an allegationmade by the Crown".

It therefore clearly falls within the innocence at stake exception. [31] Justice Major further outlined the McClure test in R. v. Brown, 2002 SCC 32 , [2002] 2 S.C.R. 185 paragraph 4: (

a) the threshold test: firstly, the accused must surpass a threshold. In order to satisfy the threshold test, the accused must establishboth of the following: i. the information he seeks from the solicitor-client communication is not available from any other source; and ii. he is otherwise unable to raise a reasonable doubt. (

b) the innocence at stake test: i. Stage 1: The accused seeking production of the solicitor-client communication must demonstrate an evidentiary basis to concludethat a communication exists that could raise a reasonable doubt as to his guilt. ii. Stage 2: If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it islikely to raise a reasonable doubt as to the guilt of the accused. Stage 1 is the precursor to the trial judge examining the communication. In Stage 2, the judge examines the communication. Thecommunication may be oral or written.

It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) isstricter than that in the first stage (could raise a reasonable doubt). If the innocence at stake test is satisfied, the judge should orderdisclosure of the communications that are likely to raise a reasonable doubt. The onus is on the applicant to establish each element of the test on a balance of probabilities. Applying the threshold to the case at bar [32] In the threshold test, the first component to be examined is one of “necessity”.

The onus is on the defence to prove that theprivileged communications relate to core issues of guilt or innocence. In this case, before violating solicitor-client privilege, othersources of the “information” must be explored. The SCC explained that “information” means more than simple knowledge of a fact; itmeans that the accused does not have access to other information that is admissible at trial. [33] The second component also goes to necessity. If the accused can be acquitted on some other basis, then there is no need toviolate solicitor-client privilege.

For example, if the accused could raise a reasonable doubt at his trial on the question of mens rea byaccess to the solicitor-client file, but could also raise a reasonable doubt in other forms, then it would be unnecessary to use the solicitor-client file (McClure, paragraph 49).

[ 34 ] Justice Major, writing the majority decision, reiterated that the trial judge should only allow the McClure application when the judge is of the view that the accused will be unable to raise a reasonable doubt without the evidence protected by the privilege.

If there is or may be some evidence upon which a reasonable jury, properly instructed, could acquit, the McClure application should be denied. [ 35 ] In his submissions, the applicant contends that something influenced the decision to reopen a previously closed investigation and he requires an understanding why certain decisions were made in the process. He argued that at Exhibit 100 of PP1-3, Sergeant Duckworth states that new investigative avenues were pursued, but it is unclear what he is referring to.

He submitted that there were many decisions made and errors committed in the investigation which led to significant delay prejudicing the accused’s ability to make full answer and defence. He argues that this information is relevant to his request for a stay as set out in his abuse of process and delay application. While it is evident that the solicitor-client material may be relevant to the accused’s defence, case law makes it clear that “[p]otential relevance in making full answer and defence is not the appropriate test to be applied. The test is innocence at stake.” ( Chan , paragraph 86 ).

The Court is not in a position to make this leap of inference at this stage. [ 36 ] In the last category of the applicant’s disclosure requests, the court notes that the applicant seeks the disclosure of any orders or directions, whether given as a result of the Globe and Mail ’s investigation and/or media reporting of unfounded sexual assaults or the Deschamps Report that may have given direction on file reviews that resulted in this investigation being reviewed and reopened could be relevant to determining why the CFNIS WR made those decisions.

He was clear in indicating that he was not looking for documents that provided guidance on prosecutorial discretion, but that it was his belief that such guidance did exist for the CFNIS and the military police. To date, his request has not been responded to. However, the court notes that he intends to call several of the investigating officers to testify, where this avenue of questioning may be aggressively pursued. It is the Court’s view that there are still potential avenues to be explored before the Court can resort to piercing solicitor-client privilege.

Should it be required, the Court is prepared to make a production order for CFNIS, the Provost Marshal’s office or any such office to provide any of the aforementioned requested documents that are not covered by any privilege. [ 37 ] On the facts of the case before this court, it is preferable to delay consideration of this application with respect to the disclosure of solicitor-client material until at least the end of the Crown’s case. This would then allow this Court a better opportunity to assess the strength of the Crown’s case, and to determine whether the applicant’s innocence is, in fact, at stake.

FOR THESE REASONS, THE COURT: [ 38 ] DENIES the application. Counsel: Lieutenant-Commander B.G. Walden, Defence Counsel Services, Counsel for the Applicant The Director of Military Prosecutions as represented by Lieutenant Colonel S.D. Richards and Major A. van der Linde, Counsel for the Respondent