It's an excellent fact scenario that you pointed out. The Crown would have to, in this situation.... The proposal here, around giving the Crown the ability to produce these types of documents and replacing that explicit waiver provision, this is not mandatory for the Crown to do. The Crown still has its responsibilities to only disclose things in a proper manner—for example, making appropriate redactions and not disclosing things that might otherwise be protected to, let's say, a third party accused on the same case—a co-accused.
In that example, a Crown does have the authority here to—if this were to pass—disclose communications. However, if there is a co-accused and there is some sort of special consideration there—not part of the marriage, obviously—and they have concerns there, they can still withhold that disclosure, as they would be expected to today if there was a concern, or make appropriate redactions.
I just want to stress that these powers are discretionary. It's an exercise in Crown discretion as it's drafted. Nothing here compels the Crown to make production. It is simply their decision within their role as a minister of justice.
