The Search for Truth… with the assistance of maps

By David Grossman

Preparing for trial can be difficult for witnesses. The nature of the legal system is such that trials will usually take place years after the events in question occurred, and witnesses’ memories are not frozen in time. Witnesses may meet with counsel to prepare, but testimony is not a prepared speech.

At the same time, testimony is not a closed book quiz either.

As a result, witnesses may sometimes bring notes with them to trial. Such notes are not prohibited, and could assist witnesses in recalling certain events. The drawbacks of bringing notes, however, are twofold: first, the fact the witness is relying on prepared notes may affect her credibility and the impression the judge has of her testimony; second, the notes themselves become fair game to opposing counsel.

Notes prepared in connection with trial are normally protected by litigation privilege, which creates a confidential space for litigants to prepare their cases without fear of discovery by the other side: see Blank v. Canada (Minister of Justice), 2006 SCC 39. But when a witness makes use of them on the stand, that privilege is lost. The question then becomes where the line is drawn between privileged and unprivileged materials. Justice Suzanne Ouellet of the Superior Court of Québec was seized of this question in Boulaine v. Canada (Attorney General), 2015 QCCS 6582.

A witness referred to notes in the context of a discovery examination. The notes referred to various paragraphs of the proceedings, but references to paragraph 15 of the motion to institute proceedings were removed. Opposing counsel wanted to obtain a copy of the removed comments in connection with paragraph 15.

Ouellet J.C.S. referred to the principle that notes used by a witness lose their privileged status, and opposing counsel gains the ability to cross-examine the witness on the notes. However, it is only the substance of the note that is covered by this rule. A witness who deliberately excludes certain subjects from her notes will not be said to renounce privilege on those subjects. The objection to disclosure of comments in connection with paragraph 15 was therefore maintained.

The holding in this case followed from the premise that the notes used by the witness were complete in themselves, as they were the only notes consulted by the witness. This situation can be contrasted with one where a party engages in incomplete or selective disclosure of privileged material, giving the Court an incomplete picture of events.

In Pop v. Boulanger, 2016 QCCS 2728, Justice Chantal Corriveau recently repeated the applicable principles in such a situation. Where there is renunciation, the renouncing party cannot unilaterally determine its scope in a manner advantageous to her. Citing the Supreme Court, Corriveau J. explained that where there is a renunciation, the Court has the obligation to ensure that “tous les documents pertinents” are revealed.

Corriveau J.C.S. also referred to a decision by Justice Joël Silcoff, confirming that a party cannot “cherry pick” which materials to disclose and which materials to exclude, in a manner that may give an incomplete picture to the Court. In that case, Silcoff J.C.S. held that a party cannot draw a line at a certain point-in-time and declare that privileged communications before that date are renounced, but privileged communications thereafter should remain protected. If the whole story includes communications that may have been exchanged subsequently, the Court will not adhere to the line that the renouncing party drew.

The takeaway from the foregoing is that the rules of disclosure and evidence are ultimately meant to support a system where truth and fairness prevail. A witness will not be prohibited from relying on notes, but equally, the witness will not be able to hide them from the opposing party. A witness can renounce privilege on some but not all documents, but equally, the witness will not be able to do so in a manner that tells only half the story.

So you can bring a map to court to help search for the truth. But you’ve got to be ready to share.