HMTQ v. Mann and Soomel

2003BCSC0140 Citation: HMTQ v. Mann and Soomel Date: 20030124 2003 BCSC 140 Docket: CC010738 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA HER MAJESTY THE QUEEN AGAINST RAVINDER SOOMEL And GURWINDER MANN RULING ON DISCLOSURE OF THE HONOURABLE MR. JUSTICE BAUMAN BAN ON PUBLICATION PURSUANT TO SECTION 648 OF THE CRIMINAL CODE Counsel for the Crown: R. Keefer V. J. Soon Counsel for the accused, Gurwinder Mann: J. M. B. Coleman Counsel for the accused, Ravinder Soomel: G. Orris, Q.C. and M. D. Fischer Counsel for Hardip Uppal: J. S. Stowe and I. Donaldson, Q.C. Date and Place of Hearing: 21, 22 and 25 November, 11 and 16 December 2002 and 9 and 17 January 2003 Vancouver, B.C. [1] In this trial Soomel and Mann are charged with the first degree murder of Gurpreet Singh Sohi. [2] They were jointly charged in that murder with Hardip Uppal. [3] In anticipation of a severance application by Mr. Uppal through counsel, the Crown, on 21 November 2002, stayed the charge against Mr. Uppal under the indictment charging all three men, laid a new indictment naming Uppal alone and then announced that it intended to proceed against Soomel and Mann under the original indictment and call Uppal in that trial. [4] In this regard, the Crown relies on the Supreme Court of Canada's decision in R.J.S. v. The Queen (1995), 96 C.C.C. (3d) 1. [5] This prompted Mr. Orris, counsel for Soomel, to seek: (i) disclosure and production of any documents in the hands of Uppal's counsel, John Stowe, comprising interviews with the Crown witnesses, Gill and Chohan. Mr. Stowe had earlier disclosed that he had had video-taped sworn interviews with Gill and Chohan. These men are alleged to be unindicted co-conspirators in the Sohi murder. The Crown has entered into immunity agreements with both men in exchange for their testimony in the trial; and (ii) disclosure of any documents etc. evidencing conversations directly between Uppal and Crown witnesses, in particular, Gill and Chohan. [6] To enable me to put counsel's submissions in context, I ordered that Mr. Stowe provide me with lists of documents and tapes in his possession and that of his client. Those lists were provided for my eyes only and they are sealed in the court file. [7] All materials on Uppal's list were shown to be no longer in his possession. Presumably, they have been deposited with Mr. Stowe. [8] Argument on Mr. Orris' application proceeded before me on 22 November and 25 November 2002. [9] Mr. Orris' written and oral submissions and counsel's reply thereto were limited to the materials noted in request (i), that is, in particular, video and transcript evidence of Mr. Stowe's interviews with Gill and Chohan. [10] The argument continued on 11 December 2002 and on 16 December 2002, I ordered disclosure of those items, that is, video and transcript evidence of Stowe's interviews with Gill and Chohan, to Mr. Orris and to Mr. Coleman, counsel for Mann, with reasons to follow. [11] The Crown did not itself seek disclosure of these items. [12] Upon reflection, I became concerned that the submissions of the parties, and my order, overlooked certain other items in Mr. Stowe's list which evidenced communications directly between Mr. Uppal and Messrs. Gill and Chohan. [13] On Mr. Stowe's list, these items are described: 5. Box of Sony micro-cassette tapes numbered 1-172. Tape #1 is of a call between P. Gill and Raj Mangal (date unknown) and calls #2-#172 recording calls from H. Chohan and P. Gill to H. Uppal between September 29, 2001 - May 9, 2002. 6. Handwritten phone log prepared by H. Uppal detailing dates and times of calls in item 5. 10. One diskette labelled "Uppal" containing summary of contents of item 5. [14] On 9 January 2003, I asked on the record that Mr. Stowe appear with Uppal, Mann, Soomel and their respective counsel to discuss the disclosure of these items to counsel for Soomel and Mann. [15] On 17 January 2003, all counsel appeared and Mr. Ian Donaldson as well appeared with Mr. Stowe, it being felt that in all the circumstances Mr. Uppal required independent counsel. [16] Mr. Donaldson frankly submitted that he could not distinguish item 5 on the Stowe list from the items already ordered disclosed and while Uppal asserted privilege thereto, and he did not waive it, Mr. Donaldson offered no further substantive argument. [17] On 20 January 2003, I ordered disclosure of item 5 to counsel for Soomel and Mann and to Crown counsel. On 22 January 2003, I modified my order with respect to the Crown to say that disclosure of the item is compellable by the Crown through the subpoena process. [18] These are my reasons for making these orders for disclosure. [19] We are concerned, of course, with Uppal's solicitor-client privilege; whether it extends to all of the items ordered disclosed; whether its precise source is legal advice privilege or litigation privilege; and whether this is an appropriate case for the court to set aside Uppal's privilege in favour of Soomel and Mann's right to make full answer in defence. [20] Finally, we are concerned with the test to apply in setting aside the privilege; whether, if litigation privilege is engaged, some test less stringent than "innocence at stake" is an appropriate standard. [21] I begin with definitions and I draw them from the Court of Appeal's recent decision in College of Physicians of B.C. v. British Columbia (Information and Privacy Commissioner), 2002 BCCA 665. [22] By "legal advice privilege" I mean the privilege that attaches to communications between solicitor and client for the purposes of obtaining legal advice. By "litigation privilege" I refer to the privilege that attaches to communications and material produced or brought into existence for the dominant purpose of being used in the conduct of litigation (per Levine J.A. at para. 28 of College of Physicians). [23] In the face of these definitions it seems clear that Mr. Stowe's video-taped interviews of Gill and Chohan (and the transcripts thereof) which clearly were undertaken for the dominant purpose of the conduct of Uppal's defence, are to be categorized under the rubric of litigation privilege. [24] I turn to the 172 telephone conversations between Uppal, Gill and Chohan, which Uppal taped. I can find no privilege attaching to these. While Uppal no doubt hoped to make use of these taped conversations in his defence and, specifically, potentially in his counsel's cross-examination of Gill and Chohan, I do not find that they were gathered for the dominant purpose of being used in the conduct of the litigation. [25] Simply put, these are virtually daily conversations between three individuals whom the Crown alleges are co-conspirators in the murder of Gurpreet Singh Sohi. [26] The murder and the prosecution are discussed in the conversations but, so too, to a significant extent, are the daily events in the lives of Gill and Chohan. [27] While I have not listened to the tapes, I have read Uppal's summary of the significant conversations and they represent typical banter between young males, albeit the topics - drug use, prostitution, theft and fraud schemes - are not the stuff of normal male bonding. [28] It would be a strange result if conversations which Uppal participated in with Gill and Chohan in breach of his bail conditions (and which led to its revocation) could be the subject of litigation privilege. [29] I need not reach this conclusion, however, as these conversations do not fall within the jurisprudential rubric of litigation privilege. Litigation privilege: protects from disclosure materials created or gathered by a lawyer, including communications between a lawyer and third parties, where litigation was in reasonable prospect at the time of the communication, and the dominant purpose of the communication was litigation. (College of Physicians of B.C. at para. 72.) [emphasis added] [30] Put another way, this privilege protects items created by, or at the direction of, "a lawyer exercising legal knowledge, skill, judgment and industry": Hodgkinson v. Simms (1988), 33 B.C.L.R. (2d) 129 at 142 (C.A.). [31] Here, Uppal is not a solicitor employing his legal expertise, nor was he acting as an agent for his counsel by taping his conversations with Gill and Chohan for the dominant purpose of preparing for pending litigation. [32] As to the tapes themselves, Mr. Stowe, Uppal's counsel, called himself their "custodian". I agree and this is an apt characterization. The tapes are real evidence, the disclosure of which is compellable by the Crown. [33] It follows that the tapes must be disclosed to counsel for Soomel, Mann and the Crown. [34] I now turn to the matter of counsel's interviews with two of the principal witnesses for the Crown, Gill and Chohan. On what principled basis might Uppal's litigation privilege be found to give way to the rights of Soomel and Mann to make full answer and defence? [35] In R. v. McClure, [2001] 1 S.C.R. 445 and R. v. Brown (2002), 162 C.C.C. (3d) 257, 2002 SCC 32, the Supreme Court of Canada considered the tension thrown up by one person's solicitor-client privilege and another's right to full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms. [36] Both decisions make it clear that the solicitor-client privilege is " not absolute and may, in rare circumstances, be required to yield in order to permit an accused to make full answer and defence to a criminal charge" (Brown at para. 1). [37] In Brown, Justice Major summarized the thrust of the court's decision in McClure and the test created there (at paras. 3 and 4): [3] However, it was also emphasized in McClure, at para. 5, that "the occasions when the solicitor-client privilege yields are rare and the test to be met is a stringent one". While obvious, the Court reiterated that any erosion of the absolute nature of solicitor-client privilege would of necessity cause some damage to the solicitor-client relationship. McClure should be considered as determining that the appropriate test is one of innocence at stake, such that solicitor-client privilege "should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of wrongful conviction" (para. 47). It is intended to be a rare exception and used as a last resort. [4] The McClure test comprises a threshold question and a two-stage innocence at stake test, which proceed as follows. - To satisfy the threshold test, the accused must establish that: - the information he seeks from the solicitor-client communication is not available from any other source; and - he is otherwise unable to raise a reasonable doubt. - If the threshold has been satisfied, the judge should proceed to the innocence at stake test, which has two stages. - Stage #1: The accused seeking production of the solicitor-client communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt. - Stage #2: If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused. - It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) is stricter than that in the first stage (could raise a reasonable doubt). - If the innocence at stake test is satisfied, the judge should order disclosure of the communications that are likely to raise a reasonable doubt, in accordance with the guiding principles discussed infra. [38] That, as said by Justice Major, is a stringent test and if it is the test to apply here, disclosure of the Stowe interviews of the Crown witnesses Gill and Chohan would not be ordered. [39] At the threshold, Soomel and Mann can say that the information which they seek, viz. what Gill and Chohan said to Stowe about the murder, is not available from any other source. But they cannot, with any certainty, say that they are otherwise unable to raise a reasonable doubt. [40] Clearly, these interviews would provide counsel with a great deal of material for a successful cross-examination of Gill and Chohan. [41] They give counsel the wherewithal to draw potentially devastating comparisons between the stories (possibly quite divergent stories) by two principal Crown witnesses: their version of events in testimony at the preliminary inquiry, the trial and during the Stowe interviews. [42] But one cannot say, certainly not at this stage, that without the interviews Soomel and Mann are unable to raise a reasonable doubt. [43] As the trial judge in Brown noted (quoted at para. 46 of the S.C.C. decision): [46] It is of course indisputable that if the accused can raise a reasonable doubt without access to the solicitor-client file, then his or her innocence would not be at stake, and access to the file would be unnecessary. But how is a trial judge to assess whether or not the accused can raise a reasonable doubt in the minds of the jurors, without usurping the jury's function? Perhaps the matter should be left until the Crown's case is complete, so that the judge would be better able to assess the extent of the accuser's [sic] jeopardy. But the implications for the orderly conduct of the trial, and the avoidance of undue delay and disruption for the jurors should such a course be followed . [44] The application suffers further in considering stage two of the innocence at stake test, the "likely to raise a reasonable doubt" criterion. [45] The question begged by the facts at bar is whether the innocence at stake test is the appropriate one to apply in the case of piercing the veil thrown up by litigation privilege in contradistinction to that raised by legal advice privilege. [46] This question, in turn, calls for a consideration of the policies underlying these privileges. [47] I begin by noting that what was sought disclosed in both Brown and McClure was material to which legal advice privilege attached. [48] In McClure, it was the sexual assault complainant's civil litigation file, and in Brown the accused sought files, documents and notes between one Benson and his lawyers concerning Benson's involvement in the murder. It was alleged that Benson had confessed to his lawyers that he had killed the victim. This is clearly material attracting legal advice privilege - the kind of communication with one's lawyers which epitomizes the sacrosanctity of this aspect of the solicitor-client privilege. [49] May one draw a principled distinction between litigation privilege and legal advice privilege, such that the sanctity of litigation privilege is somewhat below that of legal advice privilege? [50] Hodgkinson v. Simms is a leading case from our Court of Appeal dealing with what is there described as lawyer's work product privilege, but what I have called litigation privilege. [51] Chief Justice McEachern expressed a reluctance to distinguish between legal advice privilege and litigation privilege (at 133, 134 and 136): Similarly, I do not find it helpful to attempt a distinction between solicitor privilege and the "lawyer's work product" that was recognized by the United States Supreme Court in the leading case of Hickman v. Taylor, 67 S. Ct. 385, 329 U.S. 495, 91 L. Ed. 451 (1946) and which distinction some commentators attempt to extract from some of the cases: Neil J. Williams, "Civil Litigation Trial Preparation in Canada" (1980), 58 Can. Bar Rev. 1 at p.50. "Lawyer's work product" is a convenient term to describe the kinds of material that, subject to controlling authorities such as Voth, infra, are protected by privilege, but I see no need to recognize a separate category of immunity against production. In my view, the purpose of the privilege is to ensure that a solicitor may, for the purpose of preparing himself to advise or conduct proceedings, proceed with complete confidence that the protected information or material he gathers from his client and others for this purpose, and what advice he gives, will not be disclosed to anyone except with the consent of his client. Thus it appears to me that, while this privilege is usually subdivided for the purpose of explanation into two species, namely, (a) confidential communications with a client, and (b) the contents of the solicitor's brief, it is really one all-embracing privilege that permits the client to speak in confidence to the solicitor, for the solicitor to undertake such inquiries and collect such material as he may require properly to advise the client, and for the solicitor to furnish legal services, all free from any prying or dipping into this most confidential relationship by opposing interests or anyone. [52] Chief Justice McEachern was prompted by the belief that (at 135): " it is highly desirable to maintain the sanctity of the solicitor's brief which has historically been inviolate. ". [53] This must, however, be read in the context of s. 7 of the Charter and an accused person's right to make full answer and defence. That latter consideration can justify violation of even legal advice privilege: Brown and McClure. [54] In College of Physicians of B.C., the Court of Appeal revisited the two privileges and at that time found it necessary, as Chief Justice McEachern did not, to distinguish between legal advice and litigation privilege (at paras. 29 and 30): [29] This case raises the issue of the scope of both types of solicitor client privilege. The question is whether either of these types of solicitor client privilege extends to communications between a solicitor and third parties made in the course of an investigation conducted by the solicitor on behalf of her client. [30] Each of the two types of privilege has a different scope because they serve different purposes. Legal advice privilege serves to promote full and frank communications between solicitor and client, thereby facilitating effective legal advice, personal autonomy (the individual's ability to control access to personal information and retain confidences), access to justice and the efficacy of the adversarial process (see Gower at para. 15; Chrusz at paras. 91-4). Litigation privilege, on the other hand, is geared towards assuring counsel a "zone of privacy" and protecting the lawyer's brief from being poached by his or her adversary (see Chrusz at paras. 22-4). [55] Justice Levine referred to the Ontario Court of Appeal's decision in General Accident Assurance Co. v. Chrusz (1999), 180 D.L.R. (4th) 241 (Ont. C.A.), and said that its explanation of the different underlying rationales and conditions for solicitor-client privilege is helpful (at para. 27). I turn to discuss that important decision. [56] In Chrusz, Justices Carthy and Doherty analyzed solicitor-client privilege and litigation privilege and distinguished between the two. [57] At para. 23, Justice Carthy adopts this analysis by R.J. Sharpe (before his judicial appointment): It is crucially important to distinguish litigation privilege from solicitor-client privilege. There are, I suggest, at least three important differences between the two. First, solicitor-client privilege applies only to confidential communications between the client and his solicitor. Litigation privilege, on the other hand, applies to communications of a non-confidential nature between the solicitor and third parties and even includes material of a non-communicative nature. Secondly, solicitor-client privilege exists any time a client seeks legal advice from his solicitor whether or not litigation is involved. Litigation privilege, on the other hand, applies only in the context of litigation itself. Thirdly, and most important, the rationale for solicitor-client privilege is very different from that which underlies litigation privilege. This difference merits close attention. The interest which underlies the protection accorded communications between a client and a solicitor from disclosure is the interest of all citizens to have full and ready access to legal advice. If an individual cannot confide in a solicitor knowing that what is said will not be revealed, it will be difficult, if not impossible, for that individual to obtain proper candid legal advice. Litigation privilege, on the other hand, is geared directly to the process of litigation. Its purpose is not explained adequately by the protection afforded lawyer-client communications deemed necessary to allow clients to obtain legal advice, the interest protected by solicitor-client privilege. Its purpose is more particularly related to the needs of the adversarial trial process. Litigation privilege is based upon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate. In other words, litigation privilege aims to facilitate a process (namely, the adversary process), while solicitor-client privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client). RATIONALE FOR LITIGATION PRIVILEGE Relating litigation privilege to the needs of the adversary process is necessary to arrive at an understanding of its content and effect. The effect of a rule of privilege is to shut out the truth, but the process which litigation privilege is aimed to protect -- the adversary process -- among other things, attempts to get at the truth. There are, then, competing interests to be considered when a claim of litigation privilege is asserted; there is a need for a zone of privacy to facilitate adversarial preparation; there is also the need for disclosure to foster fair trial. "Claiming Privilege in the Discovery Process" in Law in Transition: Evidence, L.S.U.C. Special Lectures (Toronto: De Boo, 1984). [58] Justice Carthy concludes (at para. 24): It can be seen from these excerpts, quoted without their underlying authorities, that there is nothing sacrosanct about this form of privilege. It is not rooted, as is solicitor-client privilege, in the necessity of confidentiality in a relationship. It is a practicable means of assuring counsel what Sharpe calls a "zone of privacy" and what is termed in the United States, protection of the solicitor's work product: See Hickman v. Taylor, 329 U.S. 495 (1946). [59] Justice Doherty dissented in part in Chrusz, however, he agreed with Justice Carthy's analysis of the litigation privilege claim before the court and in particular (at para 134): -- his description of the different rationales underlying client-solicitor privilege and litigation privilege [paras. 22-24]; -- his conclusion that litigation privilege exists to provide "a protected area to facilitate investigation and preparation of a case for trial by adversarial advocates" [para. 23]; -- his assertion that the reach of litigation privilege must take cognizance of the broad rules of discovery which are aimed at full disclosure of relevant facts by all parties to the litigation [paras. 25-28]; -- his adoption of the dominant purpose test as being consistent with contemporary notions of full pre-trial discovery [paras. 29-32]; [60] Justice Doherty considered the principle that no privilege is absolute and he quotes Cory J. in Smith v. Jones (1998), 132 C.C.C. (3d) 225 (S.C.C.): Just as no right is absolute so too the privilege, even that between solicitor and client, is subject to clearly defined exceptions. The decision to exclude evidence that would be both relevant and of substantial probative value because it is protected by the solicitor-client privilege represents a policy decision. It is based upon the importance to our legal system in general of the solicitor-client privilege. In certain circumstances, however, other societal values must prevail. (Chrusz, supra at para. 143) [61] Justice Doherty then considered how one should determine when litigation privilege should give way to other societal interests (at paras. 150-2 and 154): 150 In my opinion, litigation privilege claims should be approached in the same way as other confidentiality-based claims which seek to deny access to or evidentiary use of relevant information. The harm done by non-disclosure to other societal interests must be considered and factored into the decision whether to give effect to the privilege claim. 151 Litigation privilege claims should be determined by first asking whether the material meets the dominant purpose test described by Carthy J.A. If it meets that test, then it should be determined whether in the circumstances the harm flowing from nondisclosure clearly outweighs the benefit accruing from the recognition of the privacy interest of the party resisting production. I would put the onus on the party claiming the privilege at the first stage of this inquiry and on the party seeking production of the document at the second stage of the inquiry. I appreciate that the party seeking production will not have seen the material and will be at some disadvantage in attempting to make the case for production. The judge can, of course, inspect the material: rule 30.04(6). She can also provide the party seeking production with a judicial summary of that material to assist in making the necessary submissions as is done where the Crown claims privilege over the contents of an affidavit used to obtain a wiretap authorization: see R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.) at 194. 152 In deciding whether to require material which meets the dominant purpose test to be produced, the policies underlying the competing interests should be considered. The privacy interest reflects our commitment to the adversarial process in which competing parties control the preparation and presentation of their respective cases. Each side is entitled to and, indeed, obligated to prepare its own case. There is no obligation to assist the other side. Counsel must have a "zone of privacy" where they are free to investigate and develop their case without opposing counsel looking over their shoulder. 154 The policies underlying the disclosure interest are adjudicative fairness and adjudicative reliability. While we remain committed to the adversarial process, we seek to make that process as fair and as effective a means of getting at the truth as possible. Both goals are in jeopardy when one party can hide or delay disclosure of relevant information. The extent to which these policies are undermined by non-disclosure will depend on many factors. The nature of the material and its availability through other means to the party seeking disclosure are two important factors. If the material is potentially probative evidence going to a central issue in the case, non-disclosure can do significant harm to the search for the truth. If the material is unavailable to the party seeking disclosure through any other source, then applying the privilege can cause considerable unfairness to the party seeking disclosure. [62] Justice Rosenberg agreed with Carthy J.A. and he specifically disagreed with Justice Doherty's analysis to this extent (at para. 168): 168 In my view, the competing interests or balancing approach proposed by Doherty J.A. is more appropriate for dealing with emerging claims of privilege such as those claims dealt with in Slavutych v. Baker, [1976] 1 S.C.R. 254, 55 D.L.R. (3d) 224, and R. v. Gruenke, [1991] 3 S.C.R. 263. I am concerned that a balancing test would lead to unnecessary uncertainty and a proliferation of pre-trial motions in civil litigation. [63] It is noted that Justice Rosenberg was concerned with a "proliferation of pre-trial motions in civil litigation". In my view, that concern does not arise in the criminal law context. The circumstances at bar are relatively extraordinary and the stakes are so high for Messrs. Soomel and Mann that Justice Rosenberg's concern for a competing interests or balancing approach in the civil context cannot be permitted to preclude that approach on the criminal side. [64] In my view, Justice Doherty's balancing approach offers a principled basis for determining when one accused's litigation privilege must give way to another's right to full answer and defence. And, it is an approach which I consider myself free to adopt, notwithstanding the stringent innocence at stake test articulated by the Supreme Court of Canada in McClure and Brown. [65] That test was posited in cases of legal advice privilege and as Justice Doherty has said, litigation privilege has never occupied the same favoured position as legal advice privilege. [66] To the same effect is the decision of the Newfoundland Court of Appeal in Morrissey v. Morrissey (2001), 196 D.L.R. (4th) 94 at paras. 19 and 20: [19] I am persuaded that the view that the two types of privilege have a different rationale and should be viewed differently is correct. The solicitor-client privilege has been recognized as fundamental to the administration of justice: R. v. Solosky, [1980] 1 S.C.R. 821, 105 D.L.R. (3d) 745; and Descoteaux v. Mierzwinski, [1982] 1 S.C.R. 860, 141 D.L.R. (3d) 590. It has been elevated from its origins as a rule of evidence to a "fundamental civil and legal right". However, those cases note that even the solicitor-client privilege is not an absolute right. There are exceptions to the principle of confidentiality. [20] While not wishing to underplay the importance of the litigation privilege, it does not have the same stature as the solicitor-client privilege. It remains, in my view, a rule of evidence, like many other matters of evidence which regulate the method of conduct of litigation. Further as will be discussed later, like the solicitor-client privilege, it is not absolute. There are exceptional cases where the privilege does not apply. [67] That the court in McClure (which was followed in Brown) was concerned with legal advice privilege is clear from the facts and this part of Justice Major's judgment (at para. 36): [36] Not all communications between a lawyer and her client are privileged. In order for the communication to be privileged, it must arise from communication between a lawyer and the client where the latter seeks lawful legal advice. Wigmore, supra, sets out a statement of the broad rule, at p. 554: Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived. [68] The crux of the matter lies in the distinct rationales underlying each privilege. In the case of legal advice privilege, the very relationship between solicitor and client is at issue. To derogate from this privilege often would be to erode the necessarily private affiliation between a client and his or her advocate. [69] On the other hand, litigation privilege seeks to facilitate the adversarial process by protecting the investigations, strategies, and theories of a party. This protection, while clearly important and not lightly disturbed, does not protect a facet of the solicitor-client relationship as vital as direct communications between lawyer and accused. [70] While it is clear that the former privilege should only yield in the direst of circumstances - where, but for the privileged communications, an accused is likely to be wrongfully convicted - there are, in my view, significantly more situations in which the right of an accused to make full answer and defence properly outweighs an assertion of litigation privilege. Moreover, as discussed below, to the extent that the disclosing party is prejudiced by that disclosure, protections are readily available. [71] I am strengthened in my view that litigation privilege may be displaced on the application of a test less stringent than innocence at stake by two decisions in the Alberta Court of Queen's Bench: R. v. Chan, 2002 ABQB 287 R. v. Card, 2002 ABQB 537 [72] Chan and Card are helpful to my analysis because each decision acknowledges that litigation privilege is of a lesser order than legal advice privilege. Indeed, in each case the court categorizes litigation privilege as a case-by-case communications privilege and Justice Perras in Card describes such a privilege so (at para. 6): Case: Prima facie presumption of admissibility; to establish inadmissibility the communication must first meet Wigmore or similar test; if so, confidentiality must be balanced against the right of an accused to make full answer and defence on a case-by-case basis. [73] Chan and Card conclude that litigation privilege is a case, not a class, privilege and they reach that conclusion by suggesting that litigation privilege is not a subset of solicitor-client privilege. (But cf R. v. Trang, 2002 ABQB 19). [74] I do not believe that that particular conclusion is open to me in light of Hodgkinson v. Simms and College of Physicians of B.C. [75] In the latter decision, Levine J.A. expressly holds that litigation privilege is part of solicitor-client privilege at common law (at paras. 26 and 29). [76] Accordingly, in British Columbia, litigation privilege is a class privilege. That, however, does not preclude its displacement in certain circumstances and what I have concluded here is that that displacement in any given case is to be considered in the context of the balancing approach suggested by Justice Doherty in Chrusz. [77] Indeed, I do not read Justice Doherty's reasons in Chrusz to suggest that litigation privilege is to be determined on a case-by-case basis by applying the Wigmore test. [78] Justice Doherty simply characterizes the litigation privilege as a qualified one (at para. 142): I do not think, however, that every document which satisfies the condition precedent to the operation of litigation privilege should be protected from disclosure by that privilege. In my view, the privilege should be recognized as a qualified one which can be overridden where the harm to other societal interests in recognizing the privilege clearly outweighs any benefit to the interest fostered by applying the privilege in the particular circumstances. [79] This suggests to me that the onus is on he or she who seeks to override the privilege, which otherwise prevails. Doherty J.A. is not describing a case privilege where there is a presumption of admissibility and an onus to establish inadmissibility. [80] In the final analysis, however, there is not much different between my approach and that of Justice Perras in Card. [81] Even though he characterizes litigation privilege as a case privilege and hence the protected material is presumptively admissible, he concludes (at para. 21): 21 Assuming that relevance of the document in question is established, privilege may give way if the accused's right to full answer and defence outweighs the value of the privilege. The importance of the privilege should not be casually dismissed because it is to be determined on a case-by-case basis. While work product privilege does not enjoy the same status as solicitor client privilege, it is still a vital element in the litigation process. While there has been significant movement towards greater disclosure, certain elements of work product, like the lawyer's notes, comments, opinions, strategies, and drafts are inherently confidential in nature, and in my opinion any movement towards disclosure of these would be counter-productive as noted in Hickmann. [82] I turn to apply the balancing approach to the facts at bar in relation to counsel's interviews of Gill and Chohan. [83] I have already noted the potential importance of these prior statements to the cross-examination of these witnesses at trial by counsel for Soomel and Mann. Given that Gill and Chohan will be principal witnesses in the Crown's case against Soomel and Mann, it follows that the latter's right to make full answer and defence could be very seriously impaired if they are denied access to these statements. [84] On the other side, what prejudice would be suffered by Uppal if disclosure is ordered? It is hard to suggest any, especially when one appreciates that the statements were taken undoubtedly in the expectation that Uppal's counsel himself would make use of them at trial in his cross-examination of Gill and Chohan. [85] And to the extent that Uppal may plead some prejudice from disclosure, he may seek to avail himself (before his own trial judge) of the protections described in R.J.S. v. The Queen, supra. [86] In short, for these reasons, I have concluded that Uppal's litigation privilege in the Gill/Chohan interviews must be displaced by the rights of Soomel and Mann. "R.J. Bauman, J." The Honourable Mr. Justice R.J. Bauman