Privileged notes taken by a witness – or by the employer from a witness – after a workplace accident may cease to be privileged if used by the witness to prepare to testify in court, a recent court decision suggests.
The case, which was not an occupational health and safety case, involved charges of refusing to provide an “Approved Screening Device” sample. The charge is often laid where a driver refuses to blow into a breathalyzer to determine whether he or she was driving while impaired.
The accused testified that he had made notes after the incident, as his father had told him to write down everything that he remembered, word for word. At trial, he testified that he had read the notes to prepare for trial.
The judge decided that the accused had used the notes to refresh his memory, and therefore the litigation privilege over the notes was lost. The judge decided:
“When the accused chooses to refresh his memory from notes to which litigation privilege would otherwise apply prior to taking the stand, the Crown is entitled to see such notes subject to the court’s discretion. An accused person who has prepared notes to refresh their memory and uses those notes to the refresh their memory prior to testifying has waived any litigation privilege attached to those notes. It is important that the opposing party have the opportunity to test the memory of events and expose inaccuracies in memory.”
Employers facing Occupational Health and Safety Act charges should understand that notes that would otherwise be litigation-privileged that are taken by the employer after a workplace accident may lose their privilege, and therefore be obtained by the prosecutor, if used by a witness to refresh his or her memory before testifying.
R. v. Sachkiw, 2014 ONCJ 287 (CanLII)