R. v. Basi

R. v. Basi

The court held that the three pages (16-18) of the Spencer memorandum were effectively disclosed under the September 29, 2008 framework and, by conduct, waived privilege as to those pages; however, fairness and consistency do not require production of the remainder of the Spencer memorandum while they do require disclosure of the Puscas memorandum because it is intricately connected and withholding it would mislead; additionally, overlap documents 978 and 979 are produced on implied waiver grounds; all other challenged privileged documents remain protected.

Citation
2009 BCSC 777
Parties
Prosecution: Regina; Accused: Uhde Singh (Dave) Basi; Accused: Bobby Singh Virk; Accused: Aneal Basi
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
23 February 2009
Procedural Posture
Criminal / Pre Trial Disclosure Application (in Chambers Oral Ruling on Waiver of Privilege)
Outcome
Partial disclosure ordered; privilege preserved in part
Legal Topics
Solicitor Client Privilege, Waiver of Privilege, Disclosure Obligations, Special Prosecutor Appointment, Overlap Documents
Source Language
English
Criminal Law Evidence Procedural Law Administrative Law Solicitor Client Privilege Waiver of Privilege Disclosure Obligations Special Prosecutor Appointment +1 more

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Parties

Regina

Prosecution

Uhde Singh (Dave) Basi

Accused

Bobby Singh Virk

Accused

Aneal Basi

Accused

Procedural Posture

Criminal / Pre Trial Disclosure Application (in Chambers Oral Ruling on Waiver of Privilege)

Legal Issues

  1. 1 Whether legal memoranda prepared by counsel must be disclosed to the defence
  2. 2 Whether inadvertent partial disclosure or conduct by Crown/RCMP amounted to implied waiver of solicitor-client privilege
  3. 3 Whether waiver of part of a document requires disclosure of referenced or overlapping privileged documents

Ratio Decidendi

The court held that the three pages (16-18) of the Spencer memorandum were effectively disclosed under the September 29, 2008 framework and, by conduct, waived privilege as to those pages; however, fairness and consistency do not require production of the remainder of the Spencer memorandum while they do require disclosure of the Puscas memorandum because it is intricately connected and withholding it would mislead; additionally, overlap documents 978 and 979 are produced on implied waiver grounds; all other challenged privileged documents remain protected.

Court Disposition

Partial disclosure ordered; privilege preserved in part

Orders

  • Puscas memorandum to be disclosed to the defence
  • Tabs 978 and 979 to be disclosed to the defence