R. v. T.G., 2023 NLSC 36

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. T.G. , 2023 NLSC 36 Date : March 3, 202 3 Docket : 202101G2676 HIS Majesty The KING v. T.G. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this matter as the complainant shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Sandra R. Chaytor Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 31, 2023

Summary: The Accused gave a statement to the police while hospitalized. Medical records regarding the Accused’s period of hospitalization were obtained by the Accused’s prior defence counsel in preparation for a voir dire on the voluntariness of the Accused’s statement. After having reviewed these medical records, the Accused consented to release of the records to the Crown. Prior defence counsel subsequently received additional medical records for the same period of hospitalization. The second set of medical records contained potentially incriminating material.

These documents were disclosed to the Crown without the Accused’s review or consent. The Accused brought this Application seeking an order prohibiting the Crown from utilizing the copy of medical records on the basis that they are litigation privileged. Held: The original medical records were not created for the dominant purpose of the litigation and therefore were not litigation privileged. The copy of the medical records are also not subject to litigation privilege.

The obtaining a copy of the medical records by counsel for the purpose of pursuing a defence strategy was not sufficient to meet the dominant purpose test.

Had the Court found that the copy of the medical records were subject to litigation privilege, the Accused did not waive privilege overthe second set of records. Whether the medical records are receivable into evidence or whether the Crown may utilize the records was not been determined on thisApplication. Appearances: Jeffrey Summers Appearing on behalf of the Crown Jonathan E. Noonan, K.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: M.(A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157; Blank v. Canada (Department of Justice), 2006SCC 39; Morrissey v.

Morrissey, 2000 NFCA 67; Lewisporte (Town) v. Newfoundland and Labrador (Information and PrivacyCommissioner), 2022 NLSC 130; Billard v. Clearwater Seafoods Limited Partnership, 2013 NLTD(G) 60; Corner Brook Pulp & PaperLtd. v. Geocon, 2000 CarswellNfld 403, [2000] N.J. No. 446 (T.D.); R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326; R.v. Alek Minassian, 2020 ONSC 7130; R. v. Dunn, 2012 ONSC 2748; Hodgkinson v. Simms (1988), (BC CA), 55D.L.R. (4th) 577, 13 A.C.W.S 3(d) 60 (B.C.C.A.); Lyell v. Kennedy (No. 3) (1884), 27 Ch. D. 1 (Eng. C.A.); General AccidentAssurance Co. v.

Chrusz (1999), (ON CA), 45 O.R. (3d) 321, 92 A.C.W.S. (3d) 26 (C.A.); Nickmar Pty. Ltd. v.Preservatrice Skandia Insurance Ltd. (1985), 3 N.S.W.L.R. 44 (S.C.); Lavers v. Weeks Estate (1997), (NL SC), 471A.P.R. 339, 151 Nfld. & P.E.I.R. 339 (Nfld. (T.D.)); Edgar v. Auld (2000), (NB CA), 225 N.B.R. (2d) 71, 184D.L.R. (4th) 747 (C.A.); Bennett v. State Farm Fire and Casualty Co., 2013 NBCA 4; R. v. Oickle, 2000 SCC 38; British Columbia(Attorney General) v. Lee, 2017 BCCA 219; Imperial Tobacco Co. v. Newfoundland & Labrador (Attorney General), 2007 NLTD 172;Stevens v.

Canada (Prime Minister) (FCA), [1998] 4 F.C. 89 (Fed. C.A.); R. v. Candir, 2009 ONCA 915 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION [1] The Accused, T.G., brings this Application seeking an order prohibiting the Crown from utilizing certain medical records onthe basis that they are litigation privileged. The medical records, which contain potentially incriminating information, were disclosed tothe Crown by the Accused’s prior defence counsel without the Accused’s consent. [2] The parties submitted an Agreed Statement of Facts pursuant to

section 655 of the Criminal Code, R.S.C. 1985, c. C-46, asfollows: 1. The Applicant stands charged with a number of offences including sexual assault alleged to have occurred on November 1,2019[1]. 2. As part of its case, the Crown intends to tender an interview by the police of the Applicant which occurred between 16:05 and16:31 on November 2, 2019 in a hospital room at the Health Sciences Centre in St. John’s, NL.

3. Prior to his interview, the Applicant underwent emergency surgery and was admitted in hospital from November 2-6,2019 (the “medical intervention”). 4. In preparation for a voir dire on the “voluntariness” of T.G.’s statement to police on November 2, 2019, prior counsel forMr. T.G. obtained medical records from Eastern Health regarding the medical intervention to assess the impact of same on his“operating mind”. Mr. T.G. consented to allow Eastern Health to provide the requested medical records to prior counsel. 5.

By email dated October 29, 2021 prior counsel provided Crown counsel with 38 pages of medical records that she had receivedfrom Eastern Health, pursuant to Mr. T.G.’s consent. By email dated October 26, 2021 prior counsel asked Mr. T.G. if hewanted to review the documents before she sent them to the Crown, and he replied that yes, he did want to review them first. Priorcounsel emailed them to Mr.

T.G. and by email dated October 27, 2021 he provided his consent to provide them to the Crown,which she did. 5.(sic) On March 15, 2022 prior counsel forwarded to the Crown an affidavit of Jennifer Mitchell, attached as Exhibit A, with nomedical records attached thereto. 6. Prior counsel obtained further medical records pertaining to the medical intervention on March 30, 2022 from Eastern Health(the “second set of records”). She provided them to Crown counsel by email on March 31, 2022.

Upon review of the records, byemail of same date Crown counsel expressed concern to prior counsel that potentially incriminating materials may have beencontained within the medical records that neither the Applicant nor counsel intended to disclose. 7. The email communications between prior counsel and Mr. T.G. indicate that prior counsel did not send the medical records tohim until April 4, 2022, at which time she asks if he consents for her to send it to the Crown and court. This was after shehad sent them to the Crown Attorney on March 31. 8.

On April 5, 2022, prior counsel emails the Applicant to refer him to the concerning portions of the second set as noted by theCrown Attorney on March 31, and asks if he consents to disclose these to the Crown Attorney. The accused did not consent toprior counsel providing Crown counsel with the second set of records before she sent them, nor at any time after. [3] Jennifer Mitchell, a Health Information Management Professional of Eastern Health, is the deponent of the affidavit attachedas Exhibit A to the Agreed Statement of Facts. Through it, Ms.

Mitchell attested that the records provided on October 20, 2021, were atrue copy of the medical records of the Accused relating to treatment received at the Health Sciences Centre from November 2, 2019 toNovember 6, 2019. [4] The parties agreed that the term “potentially incriminating materials” referenced in the Agreed Statement of Facts are notesmade by a psychiatrist of utterances purportedly made by the Accused regarding events related to the offences with which he is nowcharged. [5] On an application of this nature, I may inspect the documents over which litigation privilege is claimed, if necessary.

Theparties agreed that should not be necessary in this case. It is common ground that the medical records are comprised of a standardhospital chart including physician notes, nursing progress notes, orders for medications, and results of various diagnostic tests. It is alsonot contentious that the content of the medical records was created during the Accused’s period of hospitalization and by various healthcare professionals. On this basis I am satisfied that the decision on this Application can be made without inspecting the medical records. [6] The focus of this Application is narrow.

The Accused seeks a determination that the medical records are litigation privilegedand therefore that the Crown may not use them. The Accused is not seeking a determination, through this Application, that the records,and in particular the psychiatrist-patient record, could be subject to a “case- by- case” privilege as discussed in M.(A.) v.

Ryan, (SCC), [1997] 1 S.C.R. 157. [7] Furthermore, although the facts of this case and the disclosure of the second set of records to Crown counsel without theAccused’s consent, may raise concerns regarding trial fairness, the Accused has not asked for a determination of that issue at this stage.Though the Accused’s brief describes concerns with giving effect to the right of full answer and defence, a right afforded constitutionalprotection, the Accused has not sought relief for an alleged infringement of this right through this Application. [8] The Accused specifically seeks an Order: 1.

Directing Crown counsel to destroy the second set of records disclosed by prior defence counsel to the Crown; and 2. Prohibiting the use by the Crown of any medical records disclosed by defence counsel to date, unless such records becomeproperly admitted during the trial.

[ 9 ] The Crown is not prepared to destroy or return the medical records to the Accused and contested the Application. It seeks an Order that: 1. The medical records are not subject to litigation privilege; 2. The medical records are admissible for any purpose if and when the Accused chooses to put his medical status into issue; 3. In the alternative, if the Court finds that litigation privilege attaches to the medical records, that the Accused will waive this privilege once the record is admitted or an expert called to testify on his behalf. [ 10 ] This is my decision on the Application.

Issues [ 11 ] The issues to be determined are: 1. Does litigation privilege attach to either the medical records or the copy of them? 2. If litigation privilege attaches to the medical records, did the Accused waive privilege over the second set of records? DISPOSITION [ 12 ] For the reasons that follow, I conclude: 1. Neither the medical records, nor the copy of them, are subject to litigation privilege. 2. As the records are not privileged, it is not necessary to decide the issue of waiver.

However, had I concluded that the records were privileged, I find the Accused did not waive privilege over the second set of records. [ 13 ] Whether the medical records are otherwise receivable into evidence or whether the Crown may utilize them has not been determined on this Application. analysis Issue 1: Does litigation privilege attach to either the medical records or the copy of them? [ 14 ] The Accused, as the party asserting that the medical records are subject to litigation privilege, bears the onus of establishing the privilege on a balance of probabilities. [ 15 ] For the following reasons, I conclude that the Accused has not met the onus of establishing that the original medical records or the copy are subject to litigation privilege. [ 16 ] In Blank v.

Canada (Department of Justice ), 2006 SCC 39 , the Supreme Court discussed the rationale behind litigation privilege. It stated that the object of litigation privilege is to ensure the efficacy of the adversarial process. To achieve this purpose, parties to litigation must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.

In other words the purpose of litigation privilege is to create a “zone of privacy” in relation to pending or apprehended litigation ( Blank at paras. 27 and 34 ). [ 17 ] This purpose of litigation privilege was recognized by the Newfoundland and Labrador Court of Appeal in Morrissey v. Morrissey , 2000 NFCA 67 .

At paragraph 37, Cameron J.A. noted that the underlying rationale of litigation privilege is to enable the parties to properly prepare their cases, and to permit investigation of the facts and development of strategy without fear that either might be revealed to the opposing party. [ 18 ] In Blank , the Supreme Court confirmed that the dominant purpose test is the applicable test to be met by the party seeking to prevent disclosure of documents due to a claim of litigation privilege. That test, simply put, is that litigation privilege attaches to documents that were created for the dominant purpose of litigation.

The litigation may be existing, contemplated, or anticipated. [ 19 ] In Blank at paragraph 60 , Fish J., for the majority, wrote: 60 I see no reason to depart from the dominant purpose test. Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard appears to me consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege.

The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure… [ 20 ] Courts in this jurisdiction have long followed the dominant purpose test in determining the applicability of litigation privilege (Examples since Blank include: Lewisporte (Town) v. Newfoundland and Labrador (Information and Privacy Commissioner) , 2022 NLSC 130 ; Billard v.

Clearwater Seafoods Limited Partnership , 2013 NLTD (G) 60)). [ 21 ] The adoption of the dominant purpose test, as opposed to a substantial purpose test, and the implementation of civil procedure rules that truncate what historically was protected from disclosure, illustrates the trend in civil litigation towards broader disclosure by both parties. [ 22 ] This was referenced by Orsborn, J. in Corner Brook Pulp & Paper Ltd. v. Geocon , 2000 CarswellNfld 403, [2000] N.J. No. 446

(T.D.), at paragraph 19, where he stated, “I think it is fair to say that as pre-trial disclosure has become more comprehensive, no doubtreflecting the need for all parties to be as fully informed as possible in today’s often complex and lengthy trials, the area protected bylitigation privilege has become smaller.” [23] Blank as well as the vast majority of the jurisprudence regarding litigation privilege, are civil litigation cases.

The alreadybroad obligations of disclosure applicable to both parties in civil litigation have only broadened over time. [24] That is not the case in criminal law matters, such as this, where the broad duty of disclosure rests solely with the Crown. [25] Furthermore, unlike the situation regarding disclosure that has evolved in the civil litigation context, the ground rules fordisclosure by an Accused in a criminal matter have not changed. [26] In criminal matters, the Crown is required to disclose to the defence all relevant material in its possession or control.

In R. v.Stinchcombe, (SCC), [1991] 3 S.C.R. 326, the Supreme Court held that information ought to be disclosed if there is areasonable possibility that withholding it will impair the accused’s right to make full answer and defence, unless non-disclosure isjustified by the law of privilege. [27] The disclosure obligations in criminal matters, for the most part, are not reciprocal. Stinchcombe is a one-way street. There arevery limited circumstances in which an Accused has a duty to disclose anything to the Crown. One example is the limited obligation ofdisclosure pursuant to

section 657.3 of the Criminal Code where the Accused relies upon expert evidence. [28] In R. v. Alek Minassian, 2020 ONSC 7130, at paragraph 7, the court aptly noted that the defence in a criminal trial is free toretain experts and conduct investigations without any general duty to disclose the fruits of such inquiries to the Crown.

An expertopinion obtained by the defence is not subject to disclosure, nor are any of the materials relied upon by the expert in preparing thatopinion. [29] Counsel for the Accused submitted that it is essential to have the protected zone of privacy offered by litigation privilege toenable defence counsel to explore potential defences which would include obtaining documentation such as the medical records in thiscase.

Without the benefit of litigation privilege, it was submitted, there would be a chilling effect on counsel’s investigation of potentialdefences as the Crown could access the documents if they were not privileged. With all due respect, this submission is without merit inthe criminal law context. The extremely limited disclosure obligations on an accused provide protection of defence counsel’s workproduct.

In criminal law matters, the defence is largely free to explore whatever defences it sees fit without fear of having to disclose tothe Crown the fruits of its labour. [30] Although the rationale underlying litigation privilege in terms of broad pre-trial disclosure on the part of both parties does notapply to the criminal law context, the dominant purpose test nonetheless is the applicable test in assessing a claim of litigation privilege. [31] R. v. Dunn, 2012 ONSC 2748, involved a claim of litigation privilege by the accused over notes taken by solicitors duringinterviews of the accused.

The lawyers were subpoenaed as witnesses and required to bring documentation in their possession that couldbe relevant to the issues in the trial. The lawyers appeared and, on behalf of the accused, claimed litigation privilege over the notes. Thecourt acknowledged that there was no duty of disclosure on the accused. Nonetheless, the court continued and applied the dominantpurpose test in assessing the claim for litigation privilege.

It concluded the notes were privileged. [32] An important element of the dominant purpose test is the requirement that the document in question be created for the purposesof litigation, actual or contemplated. The original medical records in this case were not created for the dominant purpose of the criminalproceeding now before the Court.

Rather, the original medical records were created for the dominant purpose of treating the Accusedduring his hospitalization and the recording of that treatment. [33] In particular, with respect to the potentially incriminating portion of the second set of records, there is no evidence, nor has theAccused contended, that those notes pertain to a psychiatric assessment completed in contemplation of the charges which the Accusednow faces. Nor is there any evidence, or suggestion, that the Accused was interviewed by the psychiatrist at his or his counsel’s requestfor the purpose of furthering the defence.

If such were the case, the original records would have been created for the dominant purposeof litigation. [34] Given that the dominant purpose for which the original medical records were created was not this litigation, the originalrecords are not subject to litigation privilege. [35] The more pertinent question to this Application arises: given that the original medical records are not privileged, can a copy ofthe records be deemed litigation privileged because it was created and obtained by defence counsel for the dominant purpose of thelitigation? [36] This question is not new to Canadian jurisprudence and has been answered differently by appellate courts in other jurisdictions. [37] One line of authority was set by McEachern, C.J.B.C., writing for the majority in Hodgkinson v.

Simms (1988), (BC CA), 55 D.L.R. (4th) 577, 13 A.C.W.S 3(d) 60 (B.C.C.A.). This is the decision predominantly relied upon by the Accused inthis Application. The majority found that photocopies of documents collected by the plaintiff's solicitor from third parties in the course ofthe litigation and included in his brief were privileged, even though the original documents were not created for the dominant purpose ofthe litigation.

In so finding, the court noted the importance of counsel being able to prepare their case in confidence. [38] In Hodgkinson, McEachern, C.J.B.C., observed at paragraph 49: It is my conclusion that the law has always been, and in my view should continue to be, that in circumstances such as these, where alawyer exercising legal knowledge, skill, judgment and industry has assembled a collection of relevant copy documents for his brief for

the purpose of advising on or conducting anticipated or pending litigation he is entitled, indeed required, unless the client consents, toclaim privilege for such collection and to refuse production. [39] The majority in Hodgkinson relied principally on Lyell v. Kennedy (No. 3) (1884), 27 Ch. D. 1 (Eng. C.A.) which held that thecopies of documents gathered by a solicitor were protected from disclosure by litigation privilege. In that case the types of documentsincluded inscriptions on tombstones, photographs of certain houses and copies of certain burial certificates.

In reaching its conclusion thecourt noted the concern that if production of the documents was compelled it might reveal the solicitor’s view of his client’s case (Lyellat para. 26). [40] Hodgkinson was not a unanimous decision. Craig, J.A., in dissent, citing the trend towards greater disclosure in civil litigation,would not protect copies, where the originals were not privileged.

At paragraph 74, he observed: I fail to comprehend how original documents which are not privileged (because they are not prepared with the dominant purpose ofactual or anticipated litigation) can become privileged simply because counsel makes photostatic copies of the documents and puts themin his "brief." [41] The other line of authority arises with the case of General Accident Assurance Co. v. Chrusz (1999), (ONCA), 45 O.R. (3d) 321, 92 A.C.W.S. (3d) 26 (C.A.), in which Carthy, J.A. disagreed with the majority in Hodgkinson.

In the course ofthe analysis of the litigation privilege claim, Carthy J.A. held that copies of non-privileged documents placed into a lawyer's brief in thecourse of preparation for litigation are not protected by litigation privilege.

He stated that if original documents did not enjoy privilegethen copying is only in a technical sense a creation (Chrusz at paras. 33-41). [42] Chrusz, like Hodgkinson, was not a unanimous decision on the issue of whether copies of non-privileged documents could everbe considered privileged. [43] Doherty J.A., in Chursz, did not agree with Carthy J.A.’s view that non-privileged documents could never be the subject oflitigation privilege (Chursz at paras. 135-138). Instead he preferred the view of Wood J. expressed in Nickmar Pty. Ltd. v.

PreservatriceSkandia Insurance Ltd. (1985), 3 N.S.W.L.R. 44 (S.C.) at 61-62, where he wrote: In my view, it is incorrect to state, as a general proposition, that a copy of an unprivileged document becomes privileged so longas it is obtained by a party, or its solicitor, for the sole purpose of advice or use in litigation. I think that the result in any such casedepends on the manner in which the copy or extract is made or obtained. If it involves a selective copying or results from research orthe exercise of skill and knowledge on the part of a solicitor, then I consider privilege should apply [Lyell v.

Kennedy (No. 3) (1884), 27 Ch. D. 1 ]. Otherwise, I see no reason, in principle, why disclosure should be refused of copies of documents which canbe obtained elsewhere, and in respect of which no relationship of confidence, or legal profession privilege exists. [44] Rosenberg J.A., in Chursz, agreed with Carthy, J. A. in all respects except the issue regarding copies of non-privilegeddocuments. Like Doherty J.A., he found the reasons of Wood J. in Nickmar Pty.

Ltd. persuasive (at para. 171). [45] Both Rosenberg J.A. and Doherty J.A. preferred however to leave the question of when, if ever, copies of non-privilegeddocuments can be protected by litigation privilege to a case where the issue is squarely raised and fully argued. [46] In the case before me, the parties were unable to identify any appellate authority in this jurisdiction that dealt squarely with aclaim by a party to litigation privilege over copies of documents, the original of which was not privileged. [47] In Lavers v.

Weeks Estate (1997), (NL SC), 471 A.P.R. 339, 151 Nfld. & P.E.I.R. 339 (Nfld. (T.D.)), acase that pre-dated Chursz, Orsborn J. had occasion to comment upon whether privilege could flow from the fact that a medical reportwas in the possession of plaintiff’s counsel. He found that it did not. In doing so, he noted that the information contained in the reportwas not the result of any exercise of counsel’s legal skill and knowledge. [48] In Lavers at paragraph 18, Orsborn J. wrote: 18 Here, it is known by both parties that plaintiff’s counsel has a medical report from Dr. Perkins.

Privilege is claimed for the contentof the report. The information simply came into counsel’s hands; the medical examination was not requested by counsel as part of hertrial preparation. The information is not the result of the application of the exercise of counsel’s legal skill and knowledge. The mere factthat counsel has Dr.

Perkins’ report (or a copy) in her possession does not, without more, and in the circumstances, support a finding thatthe report is protected by the ‘in contemplation of litigation’ privilege. [49] In Corner Brook Pulp & Paper Ltd., a post-Chursz decision, Orsborn, J. quoted, with approval, extensively from Carthy J.A. inChrusz with respect to the rational underlying litigation privilege in the modern context of broad discovery in civil actions. In doing so,he referenced the differing views expressed in Chursz and Hodgkinson.

At paragraph 20, Orsborn J. wrote: 20 Carthy, J.A., said at par. 37, disagreeing with the majority of the British Columbia Court of Appeal in Hodgkinson v. Simms [1988CarswellBC 437 (B.C. C.A.)], and agreeing with the dissenting judgment: I agree with the tenor of Craig J.A.'s reasons. The majority reasons reflect a traditional view of the entitlement to privacyin a lawyer's investigative pursuits. It is an instinctive reflex of any litigation counsel to collect evidence and to pounce at themost propitious moment. That's the fun in litigation! But the ground rules are changing in favour of early discovery.

Litigationcounsel must adjust to this new environment and I can see no reason to think that clients may suffer except by losing the surpriseeffect of the hidden missile.

[50] Corner Brook Pulp & Paper Ltd, did not, however, address the issue of whether copies of original documents obtained andplaced in a solicitor’s file for the dominant purpose of the litigation could be the subject of litigation privilege. [51] In Edgar v. Auld (2000), (NB CA), 225 N.B.R. (2d) 71, 184 D.L.R. (4th) 747 (C.A.), the New BrunswickCourt of Appeal held that hospital and medical records of a plaintiff in a personal injury action were not subject to litigation privilege.This was so even though the records had been obtained by a physician retained by the plaintiff’s solicitor.

The claim for privilegeasserted the medical records were effectively obtained by the lawyer for the purpose of advising the plaintiff and therefore were thework product of the lawyer. The trial judge had rejected the majority decision in Hodgkinson. The Court of Appeal agreed with the trialdecision. It concluded that that there was no merit to extending litigation privilege to cover hospital and medical reports obtained by theplaintiff’s solicitor.

The records were not created for the dominant purpose of the litigation and there was no legal skill or industryinvolved in ordering a copy of the records. [52] Hodgkinson, unlike decisions of other appellate courts in the country, found litigation privilege to be based on the same rationalas solicitor-client privilege. The Hodgkinson approach was rejected by the Supreme Court in Blank.

It stated that to treat litigationprivilege and solicitor-client privilege as two branches of the same tree tends to obscure the true nature of both (Blank at paras. 29 and31). [53] In Blank the Supreme Court referenced the conflict between appellate level courts concerning whether litigation privilegeshould extend to documents gathered or copied, as opposed to created, for the dominant purpose of litigation.

However, it left thequestion open for another day for it to be explicitly raised and fully argued. [54] Although leaving the question unanswered in Blank, Fish J. made the following comments at paragraph 64: 64 The conflict of appellate opinion on this issue should be left to be resolved in a case where it is explicitly raised and fully argued.Extending the privilege to the gathering of documents resulting from research or the exercise of skill and knowledge does appear to bemore consistent with the rationale and purpose of the litigation privilege.

That being said, I take care to mention that assigning such abroad scope to the litigation privilege is not intended to automatically exempt from disclosure anything that would have been subject todiscovery if it had not been remitted to counsel or placed in one's own litigation files. Nor should it have that effect. [55] The view that litigation privilege could potentially extend to the gathering of documents resulting from the research or theexercise of skill and knowledge is similar to that expressed by Wood J. in Nickmar Pty. Ltd. as cited by Doherty J.A. and Rosenberg J.A.in Chrusz.

It is also consistent with the type of work that went into the solicitor’s brief in compiling the documentation noted in Lyell v.Kennedy as described above. [56] Bennett v. State Farm Fire and Casualty Co., 2013 NBCA 4, is a case decided after Blank. It involved an action by ahomeowner against her insurer for damages resulting from the destruction of her home by fire. The plaintiff had in her possession a copyof records from a police investigation into the fire. She claimed litigation privilege over the police records on the basis that her counselhad gathered the documents for the purpose of the litigation.

The court concluded that the documents were not privileged. It held that thesimple fact that plaintiff’s counsel gathered the documents by requesting them from the police was not sufficient to cloak the documentswith litigation privilege. [57] In the case before me, counsel for the Accused interprets the comments of the Supreme Court at paragraph 64 in Blank to meanany copies of documents that are gathered by a solicitor would be subject to litigation privilege.

It was submitted that if the medicalrecords had been obtained directly by the Crown from Eastern Health, they would not be protected but because the records were a copycontained in prior defence counsel’s file and the Crown obtained them through that route, litigation privilege should apply to them. [58] I do not interpret the comments of the Supreme Court in Blank as being so broad as to apply to all documentation obtained bylegal counsel in the course of litigation. [59] In my view, which I believe to be in keeping with the comments of the Supreme Court at paragraph 64 of Blank, copies ofotherwise unprivileged documents, merely collected or gathered by a lawyer, or a party, for potential use in anticipated or ongoinglitigation, cannot attract litigation privilege. [60] On the other hand, and also in accordance with the comments in Blank, copies of otherwise unprivileged documentationobtained and compiled in a lawyer’s file which flow from the research, skill, and knowledge on the part of the lawyer could potentiallybe considered litigation privileged.

For example, there may be an argument in cases where copies of documents are specifically selected,compiled, and arranged by counsel in such a manner that disclosure of the documents would be tantamount to accessing the workproduct of the lawyer and thereby delving into the lawyer’s mind so as to reveal the litigation strategy to the opposing side. [61] In my view, however, this

interpretation of litigation privilege would run contrary to the modern approach to full andcomprehensive disclosure in civil litigation. As such, if it were to be considered, it would be only in rare and exceptional circumstances. [62] In any event, based on the facts before me, this is not the case to determine whether litigation privilege should be extended tosuch circumstances. [63] The concern expressed in some cases, that an aspect of a party’s litigation strategy will be divulged if the documents are notdeemed litigation privileged, is not present in this case.

The purpose in obtaining the medical records was made known by prior defencecounsel and confirmed in the Agreed Statement of Facts. The records were obtained to assist in some manner with the assessment of the“operating mind” component of the test set out in R. v. Oickle, 2000 SCC 38. [64] I accept that the dominant purpose of obtaining the copy of the medical records was for the purpose of the Accused’s defence.There is insufficient, if any, evidence however that the gathering, or compilation, of the records resulted from the exercise of any

particular legal knowledge, skill, or judgment by prior defence counsel. The evidence is simply that the records were obtained by priordefence counsel and promptly disclosed to the Crown.

With respect to the second set of records, this disclosure occurred prior to defencecounsel even consulting with the Accused as to their content. [65] To extend litigation privilege to the obtaining of a copy of otherwise unprivileged documents, in these circumstances, woulderode what it means for documents to have been created for the dominant purpose of the litigation. [66] I conclude that the copy of the medical records obtained by prior defence counsel and disclosed to Crown counsel is notlitigation privileged.

Issue 2: If litigation privilege attaches to the medical records, did the Accused waive the privilege over the second set ofrecords? [67] As I have determined that the medical records, nor the copy of them, are subject to litigation privilege, there is no need toaddress whether the Accused waived privilege. [68] I will nonetheless deal with this issue. [69] Counsel for the Accused conceded that, as the Accused had consented to the release of the first set of medical records to theCrown, any privilege over that portion of the records had been waived.

Therefore it is only with respect to the second set of records thatthe issue of waiver is to be considered. [70] For the reasons that follow, I am satisfied that the Accused did not waive privilege regarding the second set of records. [71] The Crown contends that, because the Accused consented to the disclosure of the first set of medical records and provided theCrown with the affidavit of Ms.

Mitchell attesting that the records provided on October 20, 2021, were true copies of the medical recordsof the Accused relating to treatment received from November 2, 2019 to November 6, 2019, the Accused waived any privilege over theentirety of the records for that time period. [72] The right to claim or to waive privilege belongs to its holder. This refers to the person or entity for whose benefit the privilegewas created. In the context of this case, the holder of any privilege that may attach to the medical records is the Accused. [73] The foundation of waiver is knowledge and intention.

An express waiver is ordinarily established when the holder of theprivilege (1) knows of the existence of the privilege; and (2) voluntarily demonstrates an intention to waive it (British Columbia(Attorney General) v. Lee, 2017 BCCA 219 at para. 53). [74] Waiver may also be found by implication. An implied waiver is not based solely on finding an implied intention on the part ofthe holder to waive the privilege but is also based on considerations of fairness and consistency. [75] In Lee, the court noted that waiver may be implied by the conduct of the privilege-holder in certain circumstances.

Forexample, intentional disclosure of part of a privileged communication may be taken as an implied waiver of the whole communication.Inadvertent disclosure of a privileged document however cannot, without more, lead to an implied waiver (Lee at para. 56 citingChapelstone Developments Inc. v. Canada, 2004 NBCA 96 at paras. 45 and 55; R. v. Ward, 2016 ONCA 568 at para. 35). [76] In Lee, potentially solicitor-client privileged communications were inadvertently disclosed in response to an access toinformation request.

The government had intended to disclose many documents but inadvertently included a number of emailcommunications between government lawyers. In considering the relationship between inadvertent disclosure and waiver, the courtconcluded that there had been no waiver over the privileged material. The court ordered the inadvertently disclosed pages to be returnedor destroyed and the respondent to refrain from making any further use of them. [77] In Imperial Tobacco Co. v.

Newfoundland & Labrador (Attorney General), 2007 NLTD 172, Green J. (as he then was), dealtwith the issue of whether a partial disclosure of a contingency fee agreement could result in waiver of the entire document. Thedisclosure was not inadvertent. At paragraph 110, Green J. cited Stevens v. Canada (Prime Minister) (FCA), [1998] 4F.C. 89 (Fed. C.A.) where Linden J.A. wrote at paragraphs 50 and 51: [50] ...

The question of whether or not people have waived their right to privilege, absent explicit waiver, is one which must be judgedaccording to all the circumstances ... [51] With respect to the release of portions of the records a similar view has been adopted in British Columbia. In Lowry v. Can.Mountain Holidays Ltd [ (1984), (BC SC), 59 B.C.L.R. 137 (S.C.)] Finch, J. emphasized that all the circumstancesmust be taken into consideration and that the conduct of the party and the presence of an intent to mislead the court or another litigant areof primary importance.

I believe that this approach is appropriate in this case. ... [Emphasis added by Green J.] [78] Green J. noted that this does not mean that partial disclosure will be treated as waiver of the whole document only where anintent to mislead is present.

In all cases, one must look at “all the circumstances” to determine whether the partial disclosure should, as amatter of fairness, be treated as full waiver (Imperial Tobacco Co. at para. 111). [79] It is important to consider all of the circumstances including the conduct of the Accused as the holder of the privilege indetermining whether by agreeing to disclose the first set of medical records, he implicitly waived privilege over all of the records.

[ 80 ] Jennifer Mitchell attested in her affidavit dated March 15, 2022, that the records provided to prior defence counsel on October 20, 2021, were true copies of the medical records of the Accused relating to treatment received at the Health Sciences Centre from November 2, 2019 to November 6, 2019. The affidavit did not have any records attached to it. The medical records provided on October 20, 2021, were only the first set of medical records – not the second set. The second set was received by prior defence counsel from Eastern Health on March 30, 2022, after the date of Ms.

Mitchell’s affidavit. [ 81 ] Before agreeing to the release of the first set of records, the Accused told prior defence counsel he wished to review them. Those records were sent to him and on October 27, 2021, and he provided his consent to the release of the first set of records to the Crown. Two days later, his prior defence counsel released those records to the Crown.

It is now known that this was not a complete set of the medical records for the time period indicated. [ 82 ] Prior defence counsel obtained the second set of records on March 30, 2022 from Eastern Health and provided them to Crown counsel on March 31, 2022.

Upon review of the records, Crown counsel expressed concern to prior defence counsel about the potentially incriminating materials contained within the medical records that neither the Accused nor counsel intended to disclose. [ 83 ] Prior defence counsel did not seek the Accused’s consent to release the second set of records to Crown counsel until April 4, 2022, after they had already been provided to the Crown. The following day, April 5, 2022, prior defence counsel referred the Accused to the concerning portions of the second set of records and sought the Accused’s consent to disclose these to the Crown.

The Accused did not consent to the second set of records being released to the Crown. [ 84 ] I conclude that a pre-condition of the Accused’s waiver of any privilege associated with the medical documents was being afforded an opportunity to first review the documents and thereby have knowledge of the contents of the records.

This was the basis upon which he consented to the release of the first set of medical records. [ 85 ] Despite the Accused having asked to review the first set of medical records prior to disclosure to the Crown, the Accused did not have an opportunity to review the second set of documents prior to the disclosure. Once the Accused’s attention was brought to the potentially incriminating material in the second set of records, he declined to consent to the release of the records.

The Accused’s consent to the release of the first set of medical records which did not contain incriminating information did not open the door to waiver of privilege over the second set of medical records. [ 86 ] Having considered all the circumstances to determine whether the partial disclosure should, as a matter of fairness, be treated as full waiver over all the medical records, I conclude it should not.

The Accused did not waive privilege over the second set of medical records. [ 87 ] Had I found that the medical records were subject to litigation privilege, I would have granted the Order sought by the Accused and prohibited the Crown from utilizing the second set of records as the privilege over those records was not waived. [ 88 ] Although I was unable to find, based on the evidence before me, that litigation privilege applies to the medical records, this does not mean that, as a result of this decision, the Crown may use the records. [ 89 ] There are issues left unresolved by this Application. [ 90 ] The receipt of the medical records into evidence is dependent on more than whether they are privileged. “To be receivable… evidence must be relevant, material, and admissible .” R. v.

Candir , 2009 ONCA 915 (leave to appeal to SCC denied). Whether the medical records will prove to be relevant to any issue in the prosecution of the Accused is unknown at this stage. [ 91 ] If the Accused were to ultimately rely on the medical records, or portions thereof, to engage an expert and to call that person to give evidence at trial, his disclosure obligations are to provide a copy of the report prepared or if there is no report, a

summary of the opinion of the expert witness and the grounds upon which it is based (s. 657.3(3)(c)). This limited obligation of disclosure on the part of the Accused does not arise until after the prosecution closes its case. Pursuant to

section 657.3(6), if the proposed witness does not testify, the Crown prosecutor may not produce the material provided by the Accused under

section 657.3(3)(

c) without the Accused’s consent. [ 92 ] Consideration of the issues of admissibility and disclosure of the medical records is enveloped in the Court’s overarching concern of ensuring fairness of trial and the ability of the Accused to make full answer and defence.

This may include consideration of the impact of the unauthorized disclosure to the Crown of potentially incriminating material of which the Crown may not have otherwise known. [ 93 ] In Stinchcombe , at paragraph 17 , the Supreme Court, in reference to the Crown’s obligation to disclose, stated that there is the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “ Charter ”) as one of the principles of fundamental justice. [ 94 ]

Section 7 of the Charter affords constitutional protection to the right to full answer and defence. This Application did not concern constitutional breaches and there were no submissions on the matter. Both parties did however reference trial fairness concerns in their written submissions. [ 95 ] The determination of the use, if any, that the Crown may make of the medical records is left to be determined when, and if, the issue arises. At that time, the parties will have an opportunity to make fulsome and comprehensive submissions on all aspects of the issue.

summary and conclusion [ 96 ] The medical records are not subject to litigation privilege. Had I concluded that the records were privileged, the Accused did

not waive privilege over the second set of records. [ 97 ] Whether the medical records are receivable into evidence or whether the Crown may utilize them has not been determined on this Application. _____________________________ Sandra R Chaytor Justice