If my friend testifies in my defence at trial, can my lawyer’s notes of a previous interview be used in his cross-examination? What if my friend reviewed the notes before he took the stand, and what if he confirms their accuracy?
In the recent appeal decision of R. v. Mitchell 2018 BCCA 52, the court considered whether the defence lawyer’s notes of interviewing a key witness should have been allowed into evidence for the purpose of cross-examining the witness. A lawyer’s notes, such as the interview notes, need not be disclosed to the other side because of the privacy allowed by litigation privilege. However, if a witness admits to reviewing a previous statement to refresh their memory for trial, the statement can be used by the opposing party in cross-examination. Whether the notes should have been included was critical, because the contents were essential to the judge’s assessment of the witness’ credibility, and ultimately convicting the accused for the alleged sexual assault.
The central issues on appeal were:
- whether the notes constituted a previous statement of the witness that could be used for cross-examination because privilege was waived; and
- if privilege was waived, whether the judge erred in permitting unrestricted use of the statement in cross-examination (the statement was not first reviewed by the judge, nor was it redacted in any way).
The Court first distinguished types of privilege, noting that litigation privilege applied to the notes – and was intended for the purpose of a “zone of privacy to facilitate investigation and preparation for trial”. In considering whether the notes were a statement of the witness for the purpose of section 10(1) of the Canada Evidence Act (which allows cross-examination on previous statements), the Court concluded that the lawyer’s notes alone were not sufficient, but that the law was clear that the statement need not be verbatim or signed by the witness. The witness did testify that the notes were, for the most part, accurate – though in point form. The Court of Appeal was satisfied that his testimony provided assurance that the notes were a reasonably accurate representation of his oral statement, and that he was in a position to answer questions about the notes. Therefore, the notes were appropriately treated as a previous statement, and fair game for cross-examination.
The Court then turned to the waiver of privilege. The Court identified that the trial judge had erred in saying that a witness could waive privilege – as only the accused can do that. However, actions taken on behalf of the accused in litigation (such as calling a witness to testify), and the consequences to each parties’ decisions in a trial may constitute a waiver of privilege. Here, the accused chose to refresh the witness’ memory with the statement, and chose to have the witness testify – and the witness’ evidence that led to the waiver of privilege was a consequence of those decisions. It is important to note that different considerations may have applied if the notes were subject to solicitor-client privilege, which was not the circumstance here. Further, there was no lawyer work product in the notes – they were limited to point form entries of a factual nature (so they were not part of the solicitors’ brief or privileged work product). The Court ultimately concluded that the waiver of privilege is an issue created by the party putting a statement to a witness to refresh their memory, and rejected arguments of prejudice (if anything, the accused prejudiced himself).
In ultimately dismissing the appeal, and finding that the statement was properly allowed for cross-examination, the Court summarized the applicable law as follows:
 I do not agree with the appellant that an accused cannot be “manoeuvered” into waiving litigation privilege by questions raised by the Crown in cross-examination. While waiver of solicitor-client privilege cannot be forced on an accused this way, this is because there must be a clear intention to disclose confidential legal advice or to rely on legal advice in support of a defence: see R. v. Cresswell, 2000 BCCA 583 at para. 37 and R. v. Chan, 2002 ABQB 753 at paras. 54, 97‒98. Litigation privilege, however, can be waived implicitly, as discussed above.
 To determine whether a witness has refreshed his or her memory from a previous statement, all that is required for the purpose of assessing whether litigation privilege has been waived is that the witness has read the document either while testifying or at a reasonable time 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 a protracted hearing on the extent of the refresh. Once this has been established, the nature and degree of what has been refreshed is a matter to be considered by the trial judge in assessing the witness’ evidence.
 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 in cross-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 a previous statement may be pertinent to the weight to be given to the witness’ evidence, it is not necessary to limit cross-examination to the 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 of cross-examination in the particular circumstances of each case. Trial judges should exercise caution where a previous statement has been written by a third party and there are concerns about the statement’s reliability or accuracy.