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EVIDENCE - Privilege - Privileged relationships - Solicitor and client

Wednesday, July 22, 2020 @ 9:13 AM  

Lexis Advance® Quicklaw®
Application by the Crown to unredact an affidavit sworn by the appellant’s trial counsel. The appellant was convicted of assault causing bodily harm regarding his involvement in a bar fight. One of the appellant’s grounds of appeal was the ineffective assistance of counsel. He adduced that trial counsel did not give him advice or seek his instructions in relation to several matters. His former counsel filed an affidavit in response to the affidavits filed by the appellant. Counsel’s affidavit had redactions pertaining to communications between counsel and the appellant.

HELD: Application allowed. It was not preferable to defer the issue to the division hearing the appeal. The redacted information responded directly to the issues raised by the appellant regarding non-communication and obtaining instructions on specific matters. The affidavit provided by trial counsel was in accordance with the waiver of solicitor-client privilege that flowed from the appellant’s affidavit and the arguments raised on appeal. The redactions were to be removed in their entirety.

R. v. Frigon, [2020] B.C.J. No. 983, British Columbia Court of Appeal, E.A. Bennett J.A., June 18, 2020. Digest No. TLD-July202020005