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.
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