R. v. Griffin (J.M.), (2009) 485 A.R. 251 (QB)

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 20, 2009
• Citations: (2009), 485 A.R. 251 (QB);2009 ABQB 696

R. v. Griffin (J.M.) (2009), 485 A.R. 251 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JA.019

Her Majesty the Queen (Crown) v. Jason Murray Griffin (accused)

(070674528Q1; 2009 ABQB 696)

Indexed As: R. v. Griffin (J.M.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

December 17, 2009.

Summary:

The accused was charged with dangerous driving causing bodily harm. The accused's counsel wrote a "without prejudice" letter to the Crown prosecutor disclosing the accused's diagnosis of a seizure disorder. Attached was a letter from the accused's doctor providing that he would testify that "it was more than likely that [the accused] had a seizure" causing the accident. With this information, Constable MacPherson obtained a production order for the accused's medical records. At trial, the Crown invited the court to dismiss the charge against the accused because of the diagnosis and his doctor was unable to say with certainty if he had warned the accused not to drive. Despite the acquittal, the accused advanced a Charter application, alleging breaches of ss. 7 and 8 of the Charter and seeking costs against the Crown.

The Alberta Court of Queen's Bench determined the issues.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - [See all Civil Rights - Topic 1646 ].

Civil Rights - Topic 1525

Property - Personal property - Personal papers - [See all Civil Rights - Topic 1646 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused was charged with dangerous driving causing bodily harm - The accused's counsel wrote a "without prejudice" letter to the Crown prosecutor disclosing the accused's diagnosis of a seizure disorder - Attached was a letter from the accused's doctor providing that he would testify that "it was more than likely that [the accused] had a seizure" causing the accident - With this information, Constable MacPherson obtained a production order for the accused's medical records - At trial, the Crown invited the court to dismiss the charge against the accused because of the diagnosis and his doctor was unable to say with certainty if he had warned the accused not to drive - Despite the acquittal, the accused advanced a Charter application, alleging a breach of s. 8 of the Charter where the Crown and MacPherson used the privileged plea bargain communications by the Crown to obtain the production order for the accused's medical file - The Alberta Court of Queen's Bench held that the accused's s. 8 right to be free of unreasonable search and seizure had been violated - The entirety of the Information to Obtain (ITO) was based on information that was privileged - That information should not have been included in the ITO - If the privileged information was excised from the ITO, there was insufficient evidence remaining to justify issuance of the production order - Therefore, the seizure of the accused's medical file was unlawful and in violation of s. 8 of the Charter - See paragraphs 104 to 107.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused was charged with dangerous driving causing bodily harm - The accused's counsel wrote a "without prejudice" letter to the Crown prosecutor disclosing the accused's diagnosis of a seizure disorder - Attached was a letter from the accused's doctor providing that he would testify that "it was more than likely that [the accused] had a seizure" causing the accident - With this information, Constable MacPherson obtained a production order for the accused's medical records - At trial, the Crown invited the court to dismiss the charge against the accused because of the diagnosis and his doctor was unable to say with certainty if he had warned the accused not to drive - Despite the acquittal, the accused advanced a Charter application, alleging a breach of s. 8 of the Charter where the Crown failed to disclose to MacPherson and the authorizing judge that the information in the information to obtain (ITO) was derived from privileged communications - The Alberta Court of Queen's Bench rejected the allegation - MacPherson faithfully advised the authorizing judge that the information concerning the accused's medical records came from defence counsel - There was no evidence that she was aware of the privilege issue - There was no evidence that the Crown intentionally or in bad faith misled the constable and, through her, the authorizing judge - To the contrary, the Crown had continued to argue that the letter from the doctor that formed the basis of the ITO was not privileged - Therefore, the accused had not demonstrated bad faith nor intentional non-disclosure by the constable or the Crown in the preparation and submission of the ITO to the authorizing judge - See paragraphs 108 to 113.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused was charged with dangerous driving causing bodily harm - The accused's counsel wrote a "without prejudice" letter to the Crown prosecutor disclosing the accused's diagnosis of a seizure disorder - Attached was a letter from the accused's doctor providing that he would testify that "it was more than likely that [the accused] had a seizure" causing the accident - With this information, Constable MacPherson obtained a production order for the accused's medical records - At trial, the Crown invited the court to dismiss the charge against the accused because of the diagnosis and his doctor was unable to say with certainty if he had warned the accused not to drive - Despite the acquittal, the accused advanced a Charter application, alleging a breach of s. 8 of the Charter where some of the documents seized were beyond the scope of the production order - The Alberta Court of Queen's Bench found that the impugned documents were not medical records, although they did concern confidential medical matters - Also, they did not fall within the date range prescribed by the production order - MacPherson and the Crown had an obligation to ensure that any produced documents which fell outside of the scope of the production order, and of which they were aware, were returned (and that all copies of those documents were returned or destroyed) - The retention of those documents after it was clear that they should not have been produced constituted a s. 8 Charter breach, since the seizure of the documents was not authorized by the production order - See paragraphs 114 to 127.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused was charged with dangerous driving causing bodily harm - The accused's counsel wrote a "without prejudice" letter to the Crown prosecutor disclosing the accused's diagnosis of a seizure disorder - Attached was a letter from the accused's doctor providing that he would testify that "it was more than likely that [the accused] had a seizure" causing the accident - With this information, Constable MacPherson obtained a production order for the accused's medical records - At trial, the Crown invited the court to dismiss the charge against the accused because of the diagnosis and his doctor was unable to say with certainty if he had warned the accused not to drive - Despite the acquittal, the accused advanced a Charter application, alleging a breach of s. 8 of the Charter where MacPherson failed to observe the authorizing judge's condition that if there were privacy concerns, the medical record should remain sealed until further court order - The Alberta Court of Queen's Bench found that "the authorizing judge was aware that the information in the [information to obtain] originated from defence counsel. She was aware that the records sought were medical records. A production order is directed at the party with possession of the documents. Section 487.015 of the [Criminal] Code provides a process for the person in possession of the records to contest the order. However, that party may have no privacy interest in the documents. Since the authorizing judge must have been concerned about the privacy interests of the patient, [the accused], she exercised her discretion to grant a conditional Production Order pursuant to s. 487.012(4) of the Code. In my view, this was an entirely reasonable exercise of that discretion. [ ... ] Had the condition imposed by Creagh, P.C.J., been observed and the documents remained sealed subject to court order, [the accused] would have had the opportunity to assert privilege over the documents and to challenge the breadth of the seizure at a preliminary stage. Constable MacPherson violated the conditions of the Production Order by unsealing the envelope containing the documents in question, and this rendered the seizure unreasonable and in violation of s. 8 of the Charter." - See paragraphs 128 to 135.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused was charged with dangerous driving causing bodily harm - The accused's counsel wrote a "without prejudice" letter to the Crown prosecutor disclosing the accused's diagnosis of a seizure disorder - Attached was a letter from the accused's doctor providing that he would testify that "it was more than likely that [the accused] had a seizure" causing the accident - With this information, Constable MacPherson obtained a production order for the accused's medical records - At trial, the Crown invited the court to dismiss the charge against the accused because of the diagnosis and his doctor was unable to say with certainty if he had warned the accused not to drive - Despite the acquittal, the accused advanced a Charter application, alleging a breach of s. 8 of the Charter where the authorizing judge impermissibly delegated her authority to the accused's doctor by including the "sealed envelope" condition - The Alberta Court of Queen's Bench rejected the allegation - The authorizing judge did not delegate her obligations to the accused's doctor - She evaluated whether the statutory preconditions for issuance of a production order, as set out in s. 487.012(3) of the Criminal Code had been met - All three conditions were met, but for the concern that the information in question was clothed with privilege - The constitutional requirement of reasonable and probable grounds was made out - There was no obligation on the authorizing judge to include any other conditions to protect the medical information - The fact that she imposed an additional condition in the production order to address confidentiality concerns had not been shown to be an impermissible delegation of her authority - Rather, she exercised her discretion as contemplated in s. 487.012(4) - See paragraphs 136 to 137.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused was charged with dangerous driving causing bodily harm - The accused's counsel wrote a "without prejudice" letter to the Crown prosecutor disclosing the accused's diagnosis of a seizure disorder - Attached was a letter from the accused's doctor providing that he would testify that "it was more than likely that [the accused] had a seizure" causing the accident - With this information, Constable MacPherson obtained a production order for the accused's medical records - At trial, the Crown invited the court to dismiss the charge against the accused because of the diagnosis and his doctor was unable to say with certainty if he had warned the accused not to drive - Despite the acquittal, the accused advanced a Charter application, alleging a breach of s. 7 of the Charter - The accused submitted that a number of actions by the Crown cumulatively amount to abuse of process: (a) the use of the privileged plea bargain communications by the Crown to obtain the Production Order for the accused's medical file; (b) the failure to disclose to McPherson and the authorizing judge that the information in the Information to Obtain (ITO) was derived from privileged communications; (c) some of the documents seized were beyond the scope of the Production Order [ ... ]; (d) Constable McPherson failed to observe the authorizing judge's condition that if there were privacy concerns, the medical record should remain sealed until further Court order; and (e) the Crown did not disclose the seizure of the medical file until the preliminary inquiry - The Alberta Court of Queen's Bench found no breach of s. 7 - The Crown's and MacPherson's approach was cavalier - However, the court did not find that their conduct was so egregious, oppressive or vexatious as to offend the community's sense of fair play and decency - See paragraphs 87 to 102.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs (incl. cost of defence experts) - The Alberta Court of Queen's Bench reviewed the case law on costs awards as a Charter remedy - In the end, "the test for a s. 24(1) costs award against the Crown essentially remains: Was there some degree of misconduct or an unacceptable degree of negligence on the part of the Crown? It is not clear what constitutes an "unacceptable degree of negligence," although the court in [R. v. Robinson (Alta. C.A. 1999) noted that it is '[s]omething more than a bona fide disagreement as to the applicable law, or a technical, unintended or innocent breach,' and must involve more than an 'unequivocal failure to discharge one's clearly established constitutional duty,' at least in a disclosure context." - See paragraphs 140 to 154.

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs (incl. cost of defence experts) - The accused was charged with dangerous driving causing bodily harm - The accused's counsel wrote a "without prejudice" letter to the Crown prosecutor disclosing the accused's diagnosis of a seizure disorder - Attached was a letter from the accused's doctor providing that he would testify that "it was more than likely that [the accused] had a seizure" causing the accident - With this information, Constable MacPherson obtained a production order for the accused's medical records - At trial, the Crown invited the court to dismiss the charge against the accused because of the diagnosis and his doctor was unable to say with certainty if he had warned the accused not to drive - Despite the acquittal, the accused advanced a Charter application, seeking costs against the Crown - The Alberta Court of Queen's Bench found breaches of s. 8 of the Charter but denied costs - The accused had not demonstrated "some degree of misconduct or unacceptable negligence on the part of the Crown itself." - There was no evidence that the accused faced any additional legal costs as a result of the Charter violations except for those associated with the present costs application - The appropriate remedy for the breaches of the accused's s. 8 right would have been to exclude the doctor's evidence and the medical file at trial - However, since the medical file was not adduced in evidence in a timely fashion, and ultimately was not admitted, and since the doctor did not provide inculpatory evidence, the breaches did not result in prejudice to the accused - The facts did not meet the threshold of some degree of Crown misconduct or unacceptable negligence so as to warrant an order for costs - There were bona fide questions as to the law concerning plea bargain privilege which resulted in an unintended s. 8 breach - There were further unintended breaches in execution of the production order - These breaches did not result from misconduct or negligence by the Crown - In the final analysis, the accused had a fair trial - See paragraphs 155 to 163.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction) - [See Practice - Topic 7341 and Practice - Topic 7351 ].

Criminal Law - Topic 3011

Special powers - Third party production orders - General - [See second, fourth and fifth Civil Rights - Topic 1646 ].

Criminal Law - Topic 3019

Special powers - Third party production orders - Quashing of - [See first Civil Rights - Topic 1646 ].

Evidence - Topic 4245

Witnesses - Privilege - Lawyer-client communications - Privilege - Offers of settlement or settlement negotiations - The Alberta Court of Queen's Bench discussed settlement negotiation privilege - see paragraphs 45 to 54 - It also discussed the scope of settlement negotiation privilege in the criminal context (plea bargain privilege) - see paragraphs 55 to 64 - The court held that "criminal plea bargain privilege is a recognized form of privilege and should be sedulously protected in the interests of encouraging fair, reasonable, and efficient disposition of criminal cases, in the interests of the public, victims, witnesses, and accused persons" - see paragraph 65 - Finally, with respect to enclosed documents, the court held that "there is no meaningful distinction between enclosing a document and reiterating its contents in a negotiation letter. As a result, a document which otherwise would not have to be disclosed in the ordinary course (i.e documents covered by work product privilege, solicitor-client privilege, etc.), but which is included with settlement communications, is an intrinsic part of the communication and should be subject to the same privilege, at least until such time as it would have to be disclosed pursuant to Stinchcombe, the Rules of Court or the Criminal Code (i.e. the privilege is not an exception to the Crown's disclosure obligation or to the requirement that parties produce any expert reports on which they intend to rely.)" - See paragraphs 66 to 77.

Evidence - Topic 4245

Witnesses - Privilege - Lawyer-client communications - Privilege - Offers of settlement or settlement negotiations - The accused was charged with dangerous driving causing bodily harm - The accused's counsel wrote a "without prejudice" letter to the Crown prosecutor disclosing the accused's diagnosis of a seizure disorder - Attached was a letter from the accused's doctor providing that he would testify that "it was more than likely that [the accused] had a seizure" causing the accident - With this information, Constable MacPherson obtained a production order for the accused's medical records - At trial, the Crown invited the court to dismiss the charge against the accused because of the diagnosis and his doctor was unable to say with certainty if he had warned the accused not to drive - Despite the acquittal, the accused advanced a Charter application - At issue was, inter alia, whether the letter to the Crown prosecutor and attachments were clothed with plea bargain privilege - The Alberta Court of Queen's Bench held that the letter and enclosed documents were privileged - At the time the Crown received the letter from the accused's counsel seeking a withdrawal of charges, the accused was the subject of criminal process - A litigious dispute was in existence - The communication from defence counsel to the Crown was marked "without prejudice" - While use of that phrase was not determinative, it was meant to act as a "flag of truce" under which negotiations could safely be carried on - Clearly, the "without prejudice" condition was meant to apply to the covering letter and to the attached medical opinion - Finally, the purpose of the communication was to propose a settlement - See paragraphs 78 to 86.

Practice - Topic 7341

Costs - Costs in criminal proceedings - General - The Alberta Court of Queen's Bench discussed the scope of the court's inherent jurisdiction to award costs in a criminal matter - See paragraphs 164 to 184.

Practice - Topic 7351

Costs - Costs in criminal proceedings - Payable by Crown - Charter violations - [See both Civil Rights - Topic 8380.7 ].

Practice - Topic 7351

Costs - Costs in criminal proceedings - Payable by Crown - Charter violations - The accused was charged with dangerous driving causing bodily harm - The accused's counsel wrote a "without prejudice" letter to the Crown prosecutor disclosing the accused's diagnosis of a seizure disorder - Attached was a letter from the accused's doctor providing that he would testify that "it was more than likely that [the accused] had a seizure" causing the accident - With this information, Constable MacPherson obtained a production order for the accused's medical records - At trial, the Crown invited the court to dismiss the charge against the accused because of the diagnosis and his doctor was unable to say with certainty if he had warned the accused not to drive - Despite the acquittal, the accused advanced a Charter application and sought costs - The Alberta Court of Queen's Bench ordered costs payable by the Crown on the basis of its inherent jurisdiction - There was something remarkable or unusual in the present case, in that the Crown sought a production order to seize the accused's medical records by use of information clothed with plea bargain privilege; the judge who issued the order imposed conditions to protect privacy interests; and the police officer who effected the seizure disregarded those conditions - These relatively unusual proceedings involved unique questions affecting criminal practice that apply beyond this particular case - The outcome of this application had very little practical effect on the accused - He had already been acquitted of the charge - There were no appreciable increased costs of trial associated with the Charter breaches - It seemed unfair for the accused to have to bear the costs of that application in these unusual and exceptional circumstances where systemic concerns were raised - The issues raised by the accused had a broader reach than his personal interests, and might result in the police and Crown considering whether to develop a protocol or practice concerning plea bargain privilege and production orders - At a minimum, consideration of these issues might provide guidance in like circumstances in the future - This was one of those rare situations virtually unique in character where a modest costs award was justified, made pursuant to the court's inherent jurisdiction and limited solely to the costs of the Charter application that followed the accused's acquittal - See paragraphs 185 to 191.

Cases Noticed:

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R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to. [para. 46].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 47].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 48].

Middelkamp et al. v. Fraser Valley Real Estate Board et al. (1992), 17 B.C.A.C. 134; 29 W.A.C. 134; 71 B.C.L.R.(2d) 276; 96 D.L.R.(4th) 227 (C.A.), refd to. [para. 49].

R. v. Delorme (G.), [2005] Northwest Terr. Cases 34; 198 C.C.C.(3d) 431; 2005 NWTSC 34, refd to. [para. 49].

Histed v. Law Society of Manitoba (2005), 195 Man.R.(2d) 224; 351 W.A.C. 224; 2005 MBCA 106, refd to. [para. 49].

Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co. et al. (1990), 105 A.R. 4 (Q.B.), refd to. [para. 51].

Costello and Dickhoff v. Calgary (City) (1997), 209 A.R. 1; 160 W.A.C. 1; 152 D.L.R.(4th) 453 (C.A.), refd to. [para. 53].

Phillips v. Rodgers et al. (1988), 92 A.R. 253 (Q.B.), refd to. [para. 54].

R. v. Bernardo, [1994] O.J. No. 1718 (Gen. Div.), refd to. [para. 56].

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Forest Protection Ltd. et al. v. Bayer AG et al. (1998), 207 N.B.R.(2d) 50; 529 A.P.R. 50; 46 C.P.C.(4th) 52 (C.A.), consd. [para. 66].

Plourde et al. v. Morin et al. (1991), 125 N.B.R.(2d) 361; 316 A.P.R. 361 (T.D.), refd to. [para. 68].

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British Columbia Children's Hospital et al. v. Air Products Canada Ltd. et al. (2003), 180 B.C.A.C. 129; 297 W.A.C. 129; 224 D.L.R.(4th) 23; 2003 BCCA 177, leave to appeal granted (2004), 327 N.R. 398; 208 B.C.A.C. 159; 344 W.A.C. 159; 233 D.L.R.(4th) vi (S.C.C.), refd to. [para. 79].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 91].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 95].

R. v. Nixon (O.) (2009), 464 A.R. 1; 467 W.A.C. 1; 246 C.C.C.(3d) 149; 2009 ABCA 269, refd to. [para. 96].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161, refd to. [para. 105].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 105].

R. v. Elkadri (A.) et al. (2007), 441 A.R. 38; 2008 ABQB 55, refd to. [para. 105].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 106].

R. v. Maton (M.R.), [2005] B.C.T.C. 330; 2005 BCSC 330, refd to. [para. 109].

R. v. Morris (W.R.) (1998), 173 N.S.R.(2d) 1; 527 A.P.R. 1; 134 C.C.C.(3d) 539 (C.A.), refd to. [para. 109].

R. v. Bisson (J.) et autres, [1994] 3 S.C.R. 1097; 173 N.R. 237; 65 Q.A.C. 241, refd to. [para. 112].

R. v. Dersch (W.W.), [1993] 3 S.C.R. 768; 158 N.R. 375; 33 B.C.A.C. 269; 54 W.A.C. 269, refd to. [para. 115].

F.E.L., Re (2007), 438 A.R. 194; 2008 ABQB 10, refd to. [para. 115].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 117].

R. v. Church of Scientology of Toronto et al. (1997), 99 O.A.C. 321; 116 C.C.C.(3d) 1 (C.A.), refd to. [para. 118].

R. v. Khan (2005), 133 C.R.R.(2d) 29 (Ont. Sup. Ct.), refd to. [para. 118].

Tele-Mobile Co. v. Ontario et al., [2008] 1 S.C.R. 305; 372 N.R. 157; 235 O.A.C. 369; 2008 SCC 12, affing. [2006] O.T.C. 1664; 81 O.R.(3d) 745; 2006 ONCJ 229, refd to. [para. 119].

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R. v. Daley (D.M.) (2008), 335 N.B.R.(2d) 255; 861 A.P.R. 255; 2008 NBPC 29, refd to. [para. 124].

Celanese Canada Inc. v. Murray Demolition Corp. et al., [2006] 2 S.C.R. 189; 352 N.R. 1; 215 O.A.C. 266; 2006 SCC 36, refd to. [para. 126].

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Canadian Broadcasting Corp. v. Manitoba (Attorney General) et al., [2008] 11 W.W.R. 515; 232 Man.R.(2d) 192; 2008 MBQB 229, refd to. [para. 129].

R. v. Serendip Physiotherapy Clinic et al. (2004), 192 O.A.C. 71; 189 C.C.C.(3d) 417 (C.A.), refd to. [para. 131].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 140].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 141].

R. v. McKay, 2003 ABQB 499, refd to. [para. 141].

R. v. Pang (B.L.) (1994), 162 A.R. 24; 83 W.A.C. 24; 95 C.C.C.(3d) 60 (C.A.), refd to. [para. 142].

R. v. Costa (2006), 149 C.R.R.(2d) 223 (Ont. Sup. Ct.), consd. [para. 143].

R. v. Robinson (C.J.) (1999), 250 A.R. 201; 213 W.A.C. 201; 142 C.C.C.(3d) 303; 1999 ABCA 367, refd to. [para. 144].

R. v. Henkel (J.E.) et al. (2003), 320 A.R. 206; 288 W.A.C. 206; 172 C.C.C.(3d) 387; 2003 ABCA 23, refd to. [para. 146].

R. v. Neil (D.L.) (2003), 320 A.R. 274; 288 W.A.C. 274; 2003 ABCA 45, refd to. [para. 146].

R. v. Fattah (A.A.) (2005), 390 A.R. 312; 2005 ABQB 523, refd to. [para. 146].

R. v. Luipasco (W.) et al. (2007), 430 A.R. 53; 2007 ABPC 250, refd to. [para. 148].

R. v. Taylor (T.E.) (2008), 261 N.S.R.(2d) 247; 835 A.P.R. 247; 230 C.C.C.(3d) 504; 2008 NSCA 5, refd to. [para. 148].

R. v. Costa (2005), 130 C.R.R.(2d) 226 (Ont. Sup. Ct.), refd to. [para. 149].

R. v. Branton (D.) et al. (2001), 144 O.A.C. 187; 53 O.R.(3d) 737 (C.A.), refd to. [para. 150].

O'Neill et al. v. Canada (Attorney General) et al., [2007] O.T.C. Uned. 187; 151 C.R.R.(2d) 370 (Sup. Ct.), refd to. [para. 152].

R. v. Tiffin (T.S.) et al. (2008), 235 O.A.C. 52; 232 C.C.C.(3d) 303; 2008 ONCA 306, refd to. [para. 152].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 153].

R. v. McGillivary (1990), 107 N.B.R.(2d) 361; 267 A.P.R. 361; 56 C.C.C.(3d) 304 (C.A.), refd to. [para. 153].

R. v. Gateway Collections Inc. (2004), 360 A.R. 299; 2004 ABPC 93, refd to. [para. 154].

Stiles v. Workers' Compensation Board (B.C.) (1989), 38 B.C.L.R.(2d) 307 (C.A.), refd to. [para. 164].

Quebec (Attorney General) et al. v. Cronier (1981), 63 C.C.C.(2d) 437 (Que. C.A.), refd to. [para. 166].

R. v. King (1986), 26 C.C.C.(3d) 349 (B.C.C.A.), refd to. [para. 167].

R. v. Pawlowski (M.) (1993), 61 O.A.C. 276; 79 C.C.C.(3d) 353 (C.A.), refd to. [para. 168].

R. v. J.G.C. (2006), 208 O.A.C. 24; 204 C.C.C.(3d) 457 (C.A.), refd to. [para. 169].

Canada (Attorney General) v. Foster et al. (2006), 217 O.A.C. 173; 215 C.C.C.(3d) 59 (C.A.), refd to. [para. 170].

R. v. Magda (L.) et al. (2006), 217 O.A.C. 100; 213 C.C.C.(3d) 492 (C.A.), refd to. [para. 172].

E.J.A.L. v. Royal Ottawa Health Care Group et al. (2009), 244 O.A.C. 359; 240 C.C.C.(3d) 181; 2009 ONCA 16, refd to. [para. 173].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1, refd to. [para. 180].

R. v. Trask, [1987] 2 S.C.R. 304; 79 N.R. 145; 68 Nfld. & P.E.I.R. 271; 209 A.P.R. 271, refd to. [para. 181].

R. v. Garcia (M.) (2005), 195 O.A.C. 64; 194 C.C.C.(3d) 361 (C.A.), refd to. [para. 182].

Harris v. Minister of National Revenue, [2002] 2 F.C. 484; 214 F.T.R. 1; 2001 FCT 1408, refd to. [para. 183].

Pauli et al. v. ACE INA Insurance Co. et al. (2004), 354 A.R. 348; 329 W.A.C. 348; 2004 ABCA 253, refd to. [para. 184].

R. v. Yeun (G.M.-C.) (2001), 291 A.R. 359; 2001 ABPC 145, refd to. [para. 197].

R. v. Wood (A.B.) et al. (1997), 229 A.R. 22 (Q.B.), refd to. [para. 197].

R. v. Pendrak (B.M.) (2000), 273 A.R. 92; 2000 ABQB 862, refd to. [para. 197].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), para. 14.314 [para. 55].

Ikonomov, Daniel, The Effect of New Production Orders in the Criminal Code on Records and Data in the Hands of Third Parties (2005), 31 C.R.(6th) 60, generally [paras. 130, 134].

Law Society of Alberta, Code of Professional Conduct, c. 4, rule 8 [para. 126].

Ontario, Law Reform Commission, Report on the Law of Standing (1989), generally [para. 183].

Paciocco, David M., and Steusser, Lee, The Law of Evidence (5th Ed. 2008), p. 249 [para. 50].

Sharpe, Robert J., Claiming Privilege in the Discovery Process, in Law in Transition: Evidence, [1984] Spec. Lect. L.S.U.C. 163, p. 166 [para. 48].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), generally [para. 53].

Vaver, David, Without Prejudice Communications - Their Admissibility and Effect (1974), 9 U.B.C. L. Rev. 85, generally [para. 50].

Counsel:

Elizabeth Wheaton and Julie Snowdon (Alberta Justice), for the Crown;

Y. Rory Ziv and Sean N. D. Smith (Weary & De Jong), for the accused.

This application was heard on April 20, 2009, by Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 17, 2009.