R v Clement, 2023 MBPC 74

CITATION: R v Clement, 2023 MBPC 74 THE PROVINCIAL COURT OF MANITOBA Winnipeg, Manitoba BETWEEN His Majesty the King ) D. Simard ) for the Crown– and – ) ) Daulton Timothy Clement ) A. Claros ) for the Accused ) ) Delivered: ) October 31, 2023 ALLEN, P.J. [1] This is my decision as to a voir dire held in this matter relating to the Crown’s request for disclosure from the defence. [2] At the conclusion of the accused’s direct evidence, he revealed that he had prepared notes as to the allegations at the time ofthose events and had referred to his notes to refresh his memory just prior to the trial.

The Crown asked the Court to direct that Mr.Clement’s notes be disclosed, the defence objected. A voir dire was held as to this question. What follows is my decision in this matter. [3] There are a number of cases dealing with this issue. In the Ontario Court of Justice case of R v Sachkiw, 2014 ONCJ 287. Atparagraph 60, Justice Dawson says: The principles enunciated in Mugford [[1990] NJ No 210] and Monfils [[1971] OJ No 1725] are still applicable post Stinchcombe [ (SCC), [1991] 3 SCR 326] to the situation when a witness testifies and refreshes their memory prior to doing so.

I accept thatit is a general principle of law that when a witness refreshes their memory from notes and testifies having done so the opposing party isentitled to see those notes. This is an implied waiver of litigation privilege. The reliability of the witness' evidence is one of theconsiderations the court must take into account.

The opposing party is entitled to test that reliability through cross examination, andwhere the witness has refreshed their memory from the notes, to explore the impact of those notes on the witness’ recall. [4] The case goes on to say at paragraph 62: When a litigant chooses to put a witness before the court who has refreshed their memory, the litigant is putting that witness and thememory refreshing source before the court. The case law does not distinguish between witnesses at large and the subset of witnesses whoare accused persons.

I do not agree that litigation privilege for policy reasons should not end when an accused person testifies havingrefreshed their memory from notes. The reliability of an accused person's evidence is also in play. When the accused chooses to refreshhis memory from notes to which litigation privilege would otherwise apply prior to taking the stand, the Crown is entitled to see suchnotes subject to the court's discretion. An accused person who has prepared notes to refresh their memory and uses those notes to therefresh their memory prior to testifying has waived any litigation privilege attached to those notes.

It is important that the opposing partyhave the opportunity to test the memory of events and expose inaccuracies in memory. [5] In R v Mitchell, 2018 BCCA 52, at paragraph 73 the British Columbia Court of Appeal says the following: To determine whether a witness has refreshed his or her memory from a previous statement, all that is required for the purpose ofassessing whether litigation privilege has been waived is that the witness has read the document either while testifying or at a reasonabletime prior to testifying, and that this has assisted the witness to refresh his or her memory in some way.

The court need not delve into aprotracted hearing on the extent of the refresh. Once this has been established, the nature and degree of what has been refreshed is amatter to be considered by the trial judge in assessing the witness' evidence. [6] In the case at bar, I am satisfied from the testimony of Mr. Clement in his direct-examination, that he has refreshed hismemory and certainly, I accept the Crown’s suggestion that the way the question was put to Mr. Clement – “Your memory is as if ithappened yesterday?

How is it that you are able to provide this much detail?” – is indicating that the defence is taking the position thatMr. Clement has a very thorough and exact recollection of the events in question. Mr. Clement offered as his explanation to that questionthat he had made notes at the time of the event, as having refreshed his memory from that material prior to testifying. [7] Mitchell goes on at paragraph 74 to say:

When an accused elects to call a witness in his or her defence, the Crown is entitled to test the reliability of the witness's testimony incross-examination. Where the witness has refreshed his or her memory in some way from reading a previous statement of his evidence,the Crown is entitled to explore the impact of the statement on the witness' recollection of the events in question. Moreover, as aprevious statement may be pertinent to the weight to be given to the witness' evidence, it is not necessary to limit cross-examination tothe specific purposes for which the witness reviewed the statement.

Cross-examination should generally be permitted to test the witness'memory as well as his or her reliability and credibility. It is up to the discretion of the trial judge to determine the appropriate scope ofcross-examination in the particular circumstances of each case. Trial judges should exercise caution where a previous statement has beenwritten by a third party and there are concerns about the statement's reliability or accuracy. [8] The defence argues that notes used by an accused to refresh his/her memory should not be required to be produced.

Further,the defence argued that this approach is supported in the cases: R v Nesbitt, [2007] OJ No 5045, R v Ticchiarelli, (ONSC), [1990] OJ No 2235 and R v Parker, [1985] OJ No 175. About this line of cases, the case of R v Fast, 2009 BCSC 1671, said thefollowing at paragraphs 53 to 55: While these authorities agree in the result, the underlying reasoning for their conclusions is varied and too undeveloped to rely on themas the basis for an evidentiary rule that an accused does not waive privilege based on a refresh.

They do not address the different waysthat waiver should apply to documents protected by solicitor-client versus litigation privilege and Nesbitt incorrectly suggests that anaccused can waive privilege only voluntarily. An accused witness can implicitly waive privilege through their conduct, in certain rare situations, either by (

i) putting the legal advicethey received in issue; . . . (ii) by relying on a privileged report in advancing his or her defence; . . . or (iii) by testifying about privilegedcommunications during direct examination. The common rationale in this line of cases is that an accused cannot put privileged communications in issue and then attempt to preventtheir disclosure by claiming that the communications are privileged. By relying on the privileged communications in some way, theaccused has demonstrated an intention to waive that privilege to some extent.

Trial fairness and disposition of the matter on its meritsthen entitle the opposing party to see the privileged document or communications the witness has put in issue in order to assess thevalidity of the witness's reliance on it through cross-examination. [9] And in this case, in my opinion the accused has put this issue before the Court, and this was in response to a specific questionfrom defence counsel.

I think it is arguable and not a question that I’ll determine today, but I think it is arguable that if a lawyer asks aclient to prepare a document for the lawyer’s purposes in understanding the intricacies of an event and what happened, and then thatdocument is prepared and provided to the lawyer, an argument could be made that that is protected by solicitor-client privilege.However, if that is the case, in my opinion, the privilege is provided to that document as long as it is used in that manner for the purposesof the lawyer.

Once that document is then used as proximate to trial as the night before by the accused person to refresh their memoryand in effect, bolster by refreshment their testimony, it seems to me that becomes something else rather than a solicitor-client document.In any event, if there is any solid case law in this, it is that once it has been put to the Court in the manner consistent with paragraph 55 ofFast, whatever privilege, whether it is solicitor-client or litigation privilege, is waived.

I agree with that. [10] As it appears that the defence will be arguing that the accused’s memory is clear and that this bolsters his credibility, in myopinion, this puts the issue of notes and refreshment before the court and entitles the Crown to see those notes. In effect, by doing so thedefence has waived whatever protection that document would otherwise have been entitled to. [11] As such, it is ordered that these notes be provided to the Crown.

I am prepared also to hear any argument that defence counselmight have, as to whether defence thinks the Crown should be limited in any way as to cross-examination on the notes or whether that isappropriate. I am prepared to hear from the Crown in that regard as well. Original signed by Judge Allen H. LAWRENCE ALLEN, P.J.