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R. v. J.S., 2026 ONCJ 321
A Look at R. v. J.S., 2026 ONCJ 321
Joseph Neuberger, Michael Bury and Diana Davison, Neuberger & Partners LLP, Criminal Lawyers Toronto
01 • BACKGROUND AND PROCEDURAL CONTEXT
The accused, J.S., stood trial on a charge of sexual assault alleged to have occurred in the City of Pembroke on September 21, 2024. J.S. elected to testify in his own defence. During the course of cross-examination, Crown counsel inquired whether J.S. had reviewed any notes prior to taking the stand. J.S. confirmed that he had.
That admission gave rise to a voir dire, conducted over April 29 and 30, 2026, to determine whether the notes in question were protected by either litigation privilege or solicitor-client privilege, and if so, whether J.S. had waived that protection by reviewing the notes before testifying.
02 • THE EVIDENTIARY RECORD: THREE DOCUMENTS IN QUESTION
A threshold difficulty in the voir dire was that J.S.’s testimony concerning his notes was imprecise and at times internally inconsistent. Justice Richardson attributed this not to evasiveness but to genuine confusion — compounded by the fact that J.S. was required to testify on the voir dire while still technically under cross-examination and accordingly could not consult with defence counsel in advance.
From the totality of J.S.’s evidence, the Court identified three documents:
Prepared by J.S. shortly after being informed by police that charges would be laid. These notes no longer exist, having been transcribed and the originals discarded.
A transcription of the handwritten notes, prepared by J.S. for ease of storage and provided to his initial counsel, Mr. May.
A document prepared collaboratively by J.S. and Mr. May, which J.S. reviewed at some point prior to testifying. This was the document at issue in the voir dire.
03 • THE APPLICABLE PRIVILEGES
| Solicitor-Client Privilege | Litigation Privilege |
|---|---|
| Protects confidential communications between a client and their lawyer made for the purpose of obtaining legal advice. Belongs to the client. Persists indefinitely — even after the client’s death. | Extends to any documents whose dominant purpose is preparation for litigation. Applies to represented and unrepresented litigants alike. Expires upon conclusion of the proceedings. |
| Yields only where: innocence of the accused is at stake; communication was made in furtherance of a criminal purpose; disclosure is necessary for public safety; or the client has expressly or impliedly waived. | Purpose: to afford parties a protected zone of privacy within which to investigate, strategize, and prepare — free from premature or compelled disclosure to adversaries. |
| Both are class privileges giving rise to a presumption of immunity from disclosure. Per Lizotte v. Aviva, 2016 SCC 53, litigation privilege “cannot be abrogated by inference.” | |
Justice Richardson found that the Refresh Document was protected by both forms of privilege. It was created after J.S. had been informed of impending charges — establishing the requisite dominant purpose of litigation — and was prepared in the course and for the benefit of the solicitor-client relationship between J.S. and Mr. May.
04 • THE QUESTION OF WAIVER
Notwithstanding the existence of privilege, the central issue was whether J.S. had waived that protection by reviewing the Refresh Document prior to testifying. The governing framework derives from S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., 1983 CanLII 407, which established that waiver may be express or implied. Implied waiver arises where fairness and consistency so require — most commonly where a party relies upon privileged communications as a component of their claim or defence, thereby putting those communications in issue.
THE INHERENT TENSION
The Supreme Court of Canada has repeatedly affirmed that privilege “cannot be abrogated by inference,” yet the doctrine of implied waiver operates, by definition, on inferential reasoning. Navigating this tension requires careful, principled analysis.
The leading criminal authority is R. v. Fast, 2009 BCSC 1671, which rejected a categorical rule in favour of a discretionary, contextual approach. The trial judge must: (1) characterize the nature of the privilege; (2) assess the degree to which the witness genuinely refreshed their memory from the document — distinguishing substantive memory restoration from a mere glance; and (3) conduct a balancing of probative value against prejudicial effect, applying heightened scrutiny where solicitor-client privilege is implicated.
Justice Richardson concluded that the Crown had not established waiver. Five considerations were determinative:
The Refresh Document emerged during cross-examination, not examination-in-chief. The jurisprudence consistently cautions against findings of implied waiver where the opposing party has maneuvered the witness into revealing privileged material. To permit such a result would create an incentive for Crown counsel to use cross-examination as a mechanism for piercing privilege.
In cases where waiver has been found — including R. v. Sachkiw, 2014 ONCJ 287, R. v. Fast, and R. v. Clement, 2023 MBPC 74 — the privileged document was directly connected to a live and material issue before the Court. Here, the notes arose in general cross-examination without any suggestion that J.S. had deployed them to buttress his credibility on a specific contested point.
J.S. testified that he reviewed the Refresh Document “a while ago” prior to trial. His evidence at trial was characterized by a general lack of specificity and recall — supporting the inference that the review had not materially assisted his recollection of particular details, a consideration directly relevant to the Fast framework.
Justice Richardson gave significant weight to the fact that J.S. was an accused, not merely a third-party witness. Accused persons are afforded constitutional protections against self-incrimination under ss. 7, 11(c), and 13 of the Charter. An overly permissive approach to implied waiver in this context risks compelling inadvertent self-incrimination.
Because the Refresh Document attracted solicitor-client privilege in addition to litigation privilege, the threshold for waiver was correspondingly higher. As Justice Greene observed in R. v. Osmond, 2020 ONCJ 654, the robust protection afforded by solicitor-client privilege reflects the foundational importance of candid solicitor-client communication, and the test for implied waiver must not be set at a level that would chill such communication.
05 • PRACTICAL IMPLICATIONS
Justice Richardson’s reasons include an important cautionary observation: the intersection of privilege and memory-refreshing by an accused witness represents a significant risk for the unwary. An accused who acknowledges — whether voluntarily or under the pressure of cross-examination — that they reviewed notes prior to testifying may inadvertently trigger a voir dire on waiver, with potentially serious consequences for the confidentiality of their litigation strategy and legal communications.
| GUIDANCE FOR PRACTITIONERS | |
|---|---|
| Defence counsel | Canvass this issue with clients in advance of trial: the circumstances under which notes were created, the degree to which they were reviewed, and the importance of raising privilege promptly should the matter arise during cross-examination. |
| Trial courts | Remain attentive to the risk that cross-examination is being used to circumvent class privileges. Apply the implied waiver doctrine with appropriate rigour, especially where the accused’s constitutional rights are engaged. |
06 • CONCLUSION
R. v. J.S. is a carefully reasoned decision on a complex evidentiary question. Justice Richardson’s ruling reaffirms that the mere act of reviewing privileged notes prior to testifying does not, without more, constitute a waiver of privilege. The determination requires a nuanced, contextual analysis — one that accounts for the circumstances in which the document came to light, the degree of actual memory refreshment, the nature of the privilege engaged, and the constitutional status of the witness.
The decision is a valuable contribution to an evolving body of case law on privilege and memory refreshment, and serves as a timely reminder that the protections afforded by solicitor-client privilege and litigation privilege are not lightly set aside.
Note: The accused is identified only by initials in the published decision. This commentary addresses only the legal principles discussed in the publicly released reasons for judgment.
READ THE DECISION HERE: R. v. J.S., 2026 ONCJ 321
Legal Commentary | R. v. J.S., 2026 ONCJ 321 | Ontario Court of Justice | June 4, 2026
This commentary is intended for informational purposes and does not constitute legal advice. Readers should consult qualified legal counsel with respect to their particular circumstances. Neuberger & Partners LLP, Criminal Lawyers Toronto.
