R. v. Clarke

R. v. Clarke

The court held that broad, conclusory privilege claims are insufficient; it accepted the NSSC tables as an evidentiary basis to permit in camera review but stripped privilege where not established on document content; litigation/work-product privilege cannot protect documents after the litigation has ended; settlement privilege for the NBFL/Hicks matter is limited to communications created before July 1, 2005 (cut-off June 30, 2005) because escrow delayed submission to the settlement panel, and documents created after that date will proceed to the likely-relevance stage; third parties were properly notified and may make further submissions on specific documents.

Citation
2015 NSSC 26
Parties
Crown/prosecutor: Her Majesty the Queen; Defendant/applicant: Bruce Elliott Clarke; Defendant/applicant: R. Blois Colpitts; Defendant/applicant: Daniel Potter; Respondent/third Party Record Holder: Nova Scotia Securities Commission; Third Party: National Bank Financial Ltd.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
30 January 2015
Procedural Posture
Criminal (r. V.) With Related Regulatory Proceedings / Pre Trial O'connor Application — in Camera Privilege Determination and Order for Further Production / Likely Relevance Stage
Outcome
Court performed in camera review, upheld privilege only where substantiated, stripped improperly claimed privileges, limited settlement privilege for NBFL/Hicks to pre-July 1, 2005 communications, found litigation/work-product privilege expired, ordered further process for likely relevance and permitted third-party...
Legal Topics
Solicitor Client Privilege, Litigation/work Product Privilege, Settlement Privilege, Common Interest Privilege, Third Party Production (o'connor Process), Public Interest Immunity (cabinet/ministerial Privilege), Disclosure and Likely Relevance
Source Language
English
Criminal Law Evidence Administrative Law Securities Regulation Procedural Law Solicitor Client Privilege Litigation/work Product Privilege Settlement Privilege +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 6 Authorities cited 20 Party arguments 2 Amounts and remedies 8
Sign in to unlock

Parties

Her Majesty the Queen

Crown/prosecutor

Bruce Elliott Clarke

Defendant/applicant

R. Blois Colpitts

Defendant/applicant

Daniel Potter

Defendant/applicant

Nova Scotia Securities Commission

Respondent/third Party Record Holder

National Bank Financial Ltd.

Third Party

Procedural Posture

Criminal (r. V.) With Related Regulatory Proceedings / Pre Trial O'connor Application — in Camera Privilege Determination and Order for Further Production / Likely Relevance Stage

Legal Issues

  1. 1 Whether documents withheld by the NSSC are protected by asserted privileges and whether those privileges are properly substantiated
  2. 2 Whether litigation/work-product privilege survives after the related regulatory litigation concluded
  3. 3 Whether settlement privilege over the NBFL/Hicks matter extends beyond the escrow period and, if so, the cutoff date for protection

Ratio Decidendi

The court held that broad, conclusory privilege claims are insufficient; it accepted the NSSC tables as an evidentiary basis to permit in camera review but stripped privilege where not established on document content; litigation/work-product privilege cannot protect documents after the litigation has ended; settlement privilege for the NBFL/Hicks matter is limited to communications created before July 1, 2005 (cut-off June 30, 2005) because escrow delayed submission to the settlement panel, and documents created after that date will proceed to the likely-relevance stage; third parties were properly notified and may make further submissions on specific documents.

Court Disposition

Court performed in camera review, upheld privilege only where substantiated, stripped improperly claimed privileges, limited settlement privilege for NBFL/Hicks to pre-July 1, 2005 communications, found litigation/work-product privilege expired, ordered further process for likely relevance and permitted third-party...

Orders

  • NSSC taken to have provided notice to affected third parties and the court is satisfied notice was given
  • NSSC to produce privilege lists and provide documents for in camera review (court possession accepted)