D. P. v. Wagg, 2004 CanLII 39048 (ON CA)

D.P. v. Wagg [Indexed as: P. (D.) v. Wagg]

71 O.R. (3d) 229

[2004] O.J. No. 2053

Docket No. C39701

Court of Appeal for Ontario

Rosenberg, MacPherson JJ.A. and Lane J. (ad hoc)

May 18, 2004

Civil procedure -- Discovery -- Disclosure of documents from criminal proceedings in civil proceedings -- Implied undertaking -- Defendant in civil proceedings also accused in criminal proceedings -- Defendant having obtained Crown brief as part of disclosure process in criminal proceedings -- Defendant obliged to disclose existence of Crown brief in his affidavit of documents in civil proceedings -- Defendant required to produce contents of Crown brief only: (a) after screening process involving hearing before Superior Court of Justice upon notice to Attorney General and relevant police service; or (b) if parties, Attorney General and police consent.

On October 5, 1995, the plaintiff DP attended at the office of Dr. W, who was an obstetrician and gynaecologist practising in the Town of Collingwood. She alleged that she was sexually assaulted by Dr. W. The police conducted an investigation and took statements from DP and from Dr. W. Criminal charges against Dr. W followed. At his criminal trial, Dr. W's statement to the police was excluded from evidence on the ground that the police had violated Dr. W's right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms because the police had failed to advise Dr. W of his rights for a second time during the course of the interview. In the end, the criminal proceedings were stayed because of unreasonable delay.

In 1998, DP began a civil action against Dr. W alleging that she was sexually assaulted in the course of a medical examination. In the civil action, DP moved for production from Dr. W of the Crown brief that he had obtained as a result of the disclosure process in the criminal proceedings. The master dismissed the motion and, on appeal, Juriansz J. ordered disclosure and production of the Crown brief, including Dr. W's statements to the police. Leave to appeal having been granted, Dr. W appealed to the Divisional Court. The Divisional Court held that Dr. W was obliged to disclose the existence of the Crown brief in his affidavit of documents but he was required to produce the contents of the brief only (a) after a screening process involving a hearing before the Superior Court of Justice upon notice to the Attorney General and the relevant police service, or (b) if the parties, the Attorney General and the police consented. The Divisional Court held that Dr. W was not required to produce the statements he gave to the police because of the violation of the Charter. Dr. W appealed. The Attorney General and two police services intervened on the appeal because of concerns with some aspects of the screening mechanism.

Held, the appeal should be allowed in part.

The Divisional Court was correct in concluding that production should not be compelled until the appropriate state agencies have been given an opportunity to assess the public interest consequences involved and either a court order or the consent of all parties was obtained. The court's inherent power to control its process and to protect that process from being abused or obstructed provided the jurisdiction to create a screening process. The Superior Court has the power to control the discovery and production process provided by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to ensure that important state and other third party [page230] interests are protected, even if particular documents do not, strictly speaking, fall within a recognized category of privilege. It was open to the Divisional Court to place limits on the production of the materials in the Crown brief through the screening mechanism without resort to the implied undertaking rule, which did not apply in this case because that rule was concerned with documents produced through the compulsory civil discovery process and the materials in this case were obtained through the criminal disclosure process as mandated by the Supreme Court of Canada in R. v. Stinchcombe. It was not, strictly speaking, necessary in this case to decide whether there is an implied undertaking rule applicable to Crown disclosure. It was sufficient to say that the reasons for possibly recognizing an implied undertaking justified the adoption of the screening process where a Crown brief, for whatever reason, finds its way into the hands of a party in a civil case.

The Divisional Court, however, erred in holding that Dr. W should not be required to produce his statements to the police and in finding that the production of the statement would bring the administration of justice into disrepute. There is a broad spectrum of police conduct that can lead to a violation of an accused's s. 10(b) rights. The admission of this statement was a matter for the trial judge. A finding that the production of the statement would bring the administration of justice into disrepute could only be made by a court that had been apprised of all the circumstances under which the statement was made. The considerations that would lead to the exclusion of the statement in the criminal context do not necessarily lead to the exclusion of the statement in the civil context. The rule of automatic exclusion that applies in the criminal context is grounded in the fundamental principle that an accused is not required to assist the state in making out its case. No such principle applies in the civil context. In civil proceedings, a litigant is under a compulsion to submit to oral discovery and obliged to make disclosure of his or her documents in an affidavit of documents. Moreover, even if a court could determine at an early stage that the statement would not be admissible at trial, the statement still should have been ordered produced as part of the discovery process.

APPEAL from an order of the Divisional Court (Blair R.S.J., Linhares de Sousa and Power JJ.) (2002), 2002 23611 (ON SCDC), 61 O.R. (3d) 746, [2002] O.J. No. 3808 (Div. Ct.) with respect to the disclosure in civil proceedings of documents obtained by the defendant as a result of the disclosure process in criminal proceedings.

Cases referred to

Consolidated NBS Inc. v. Price Waterhouse, 1994 10979 (ON SCDC), [1994] O.J. No. 263, 111 D.L.R. (4th) 656, 24 C.P.C. (3d) 185 (Gen. Div.), affg (1992), 1992 8612 (ON SC), 94 D.L.R. (4th) 176, 10 C.P.C. (3d) 155 (Ont. Gen. Div.); Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, [2001] 54 O.R. (3d) 214n, 201 D.L.R. (4th) 193, 272 N.R. 1, 2001 C.L.L.C. Â210-033, 2001 SCC 44, 10 C.C.E.L. (3d) 1, 7 C.P.C. (5th) 199, [2001] S.C.J. No. 46, revg (1998), 1998 5431 (ON CA), 42 O.R. (3d) 235, 167 D.L.R. (4th) 385, 41 C.C.E.L. (2d) 19, 99 C.L.L.C. Â210-016, 27 C.P.C. (4th) 91 (C.A.); Fullowka v. Royal Oak Mines Inc., 1998 5724 (NWT SC), [1998] N.W.T.J. No. 11, [1998] N.W.T.R. 42 (S.C.), supp. reasons, [1998] N.W.T.J. No. 45 (S.C.); G. (N.) v. Upper Canada College (2004), 2004 60016 (ON CA), 70 O.R. (3d) 312, [2004] O.J. No. 1202 (C.A.); Goodman v. Rossi (1995), 1995 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906, 125 D.L.R. (4th) 613, 12 C.C.E.L. (2d) 105, 37 C.P.C. (3d) 181 (C.A.), revg (1994), 1994 10551 (ON CA), 21 O.R. (3d) 112, 120 D.L.R. (4th) 557, 7 C.C.E.L. (2d) 188, 34 C.P.C. (3d) 18 (Div. Ct.); Hedley v. Air Canada, [1994] O.J. No. 287, 23 C.P.C. (3d) 352 (Gen. Div.); Lang v. Crowe, [2000] O.J. No. 653, 131 O.A.C. 26 (Div. Ct.); Lindsey v. Le Sueur, 1913 574 (ON CA), [1913] O.J. No. 168, 29 O.L.R. 648 (C.A.); Ontario (Attorney General) v. Ontario (Information and Privacy Commission, Inquiry Officer) (2002), 2002 18055 (ON CA), 62 O.R. (3d) 167, [2002] O.J. No. 4596, 220 D.L.R. (4th) 467, 22 C.P.R. (4th) 169 (C.A.) [Leave to appeal dismissed, [2003] S.C.C.A. No. 31], affg (2001), 2001 40268 (ON SCDC), 16 C.P.R. (4th) 1 (Ont. Div. Ct.); [page231] P. (D.) v. Wagg, [2004] O.J. No. 2053, 187 O.A.C. 26, 184 C.C.C. (3d) 321, 46 C.P.C. (5th) 13 (C.A.), supp. reasons (2004), 239 D.L.R. (4th) 501 (Ont. C.A.), revg (2002), 2002 23611 (ON SCDC), 61 O.R. (3d) 746, 222 D.L.R. (4th) 97, 97 C.R.R. (2d) 324, 26 C.P.C. (5th) 377, [2002] O.J. No. 3808 (Div. Ct.), revg in part (2001), 2001 28033 (ON SC), 52 O.R. (3d) 624, 81 C.R.R. (2d) 182, 8 C.P.C. (5th) 252 (S.C.J.); R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206, [1995] S.C.J. No. 39, 124 D.L.R. (4th) 7, 181 N.R. 1, 28 C.R.R. (2d) 244, 97 C.C.C. (3d) 385, 38 C.R. (4th) 265, revg (1993), 1993 6884 (BC CA), 85 C.C.C. (3d) 343 (B.C.C.A.); R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 13 B.C.L.R. (2d) 1, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R. 122, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193, revg in part (1983), 1983 271 (BC CA), 148 D.L.R. (3d) 40, [1983] 5 W.W.R. 43, 5 C.R.R. 1, 5 C.C.C. (3d) 141, 33 C.R. (3d) 130 (B.C.C.A.), affg (1982), 3 C.R.R. 79 (B.C. Co. Ct.); R. v. Cook, 1998 802 (SCC), [1998] 2 S.C.R. 597, [1998] S.C.J. No. 68, 57 B.C.L.R. (3d) 215, 164 D.L.R. (4th) 1, 230 N.R. 83, [1999] 5 W.W.R. 582, 55 C.R.R. (2d) 189, 128 C.C.C. (3d) 1, 19 C.R. (5th) 1, revg (1996), 1996 2438 (BC CA), 41 C.R.R. (2d) 43, 112 C.C.C. (3d) 508 (B.C.C.A.); R. v. Gruenke, 1991 40 (SCC), [1991] 3 S.C.R. 263, [1991] S.C.J. No. 80, 75 Man. R. (2d) 112, 130 N.R. 161, [1991] 6 W.W.R. 673, 7 C.R.R. (2d) 108, 67 C.C.C. (3d) 289, 8 C.R. (4th) 368, affg (1989), 1989 211 (MB CA), 55 Man. R. (2d) 289, [1989] 2 W.W.R. 193, 41 C.R.R. 20, 46 C.C.C. (3d) 449, 68 C.R. (3d) 382 (C.A.) (sub nom. R. v. Fosty); R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343, [1994] S.C.J. No. 71; R. v. Little, [2001] A.J. No. 69, 91 Alta. L.R. (3d) 380, [2001] 7 W.W.R. 155, 82 C.R.R. (2d) 318, 11 M.V.R. (4th) 133, 2001 ABPC 13 (Prov. Ct.); R. v. Masilamany, [2004] O.J. No. 701, [2004] O.T.C. 190 (S.C.J.); R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, [1994] S.C.J. No. 71, 133 N.S.R. (2d) 321, 118 D.L.R. (4th) 154, 172 N.R. 161, 380 A.P.R. 321, 23 C.R.R. (2d) 239, 92 C.C.C. (3d) 353, 33 C.R. (4th) 85, 6 M.V.R. (3d) 181, revg (1992), 1992 2476 (NS CA), 113 N.S.R. (2d) 156, 309 A.P.R. 156, 75 C.C.C. (3d) 1, 38 M.V.R. (2d) 268 (C.A.); R. v. Savion and Mizrahi (1980), 1980 2872 (ON CA), 52 C.C.C. (2d) 276, [1980] O.J. No. 580, 13 C.R. (3d) 259 (C.A.); R. v. Smith, 1994 5076 (SK QB), [1994] S.J. No. 38, 146 Sask. R. 202 (Q.B.); R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, 185 N.B.R. (2d) 1, 144 D.L.R. (4th) 193, 209 N.R. 81, 472 A.P.R. 1, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1, affg (1995), 1995 5579 (NB CA), 159 N.B.R. (2d) 321, 409 A.P.R. 321, 97 C.C.C. (3d) 164 (C.A.); R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, 83 Alta. L.R. (2d) 193, 130 N.R. 277, [1992] 1 W.W.R. 97, 18 C.R.R. (2d) 210, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277; R. v. Trotta, 2004 60014 (ON CA), [2004] O.J. No. 2439 (C.A.); Reichmann v. Toronto Life Publishing Co., [1988] O.J. No. 961, 28 C.P.C. (2d) 11 (H.C.J.) [Leave to appeal dismissed, [1988] O.J. No. 1333, 29 C.P.C. (2d) 66 (H.C.J.)]; Taylor v. Director of the Serious Fraud Office, [1998] H.L.J. No. 38, 4 All E.R. 801, [1998] 3 W.L.R. 1040, [1998] 2 A.C. 177; Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 311 N.R. 201, 2003 SCC 63, 17 C.R. (6th) 276, [2003] S.C.J. No. 64

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 10, 24 Criminal Code, R.S.C. 1985, c. C-46 Criminal Procedure and Investigations Act, 1996 (U.K.), 1996, c. 25, s. 17 Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 Privacy Act, R.S.C. 1985, c. P-21

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30, 30.02, 30.04(5), 30.1, 30.1.01(3)

Authorities referred to

Ontario, Report of the Attorney General's Advisory Committee on Charges, Screening, Disclosure, and Resolution Discussions (Toronto: Queen's Printer for Ontario, 1993) Wigmore, John Henry, Evidence in Trials at Common Law, McNaughton Revision, Vol. 8 (Boston: Little, Brown & Co., 1961) [page232]

Paul E. Harte, for appellant. Jonathan C. Lisus and Sarit E. Batner, for respondent. Luba Kowal, Janet E. Minor and Arif Virani, for intervenor Attorney General of Ontario. Kevin A. McGivney and Cheryl M. Woodin, for intervenors, Chief of Toronto Police Service and Chief of Halton Regional Police Service.

The judgment of the court was delivered by

1ROSENBERG J.A.: -- This appeal from an order of the Divisional Court concerns the right of a plaintiff to disclosure and production of documents in the possession of the defendant that the defendant obtained as a result of the disclosure process in criminal proceedings brought against the defendant. In this case, the plaintiff was particularly interested in production of statements that the defendant had given to the police, and that the trial judge in the criminal proceedings had held were obtained in violation of the defendant's rights under the Canadian Charter of Rights and Freedoms and had excluded. Blair R.S.J., writing for the unanimous court, held that the defendant was required to disclose the existence of the Crown brief in his affidavits of documents. The defendant was, however, only required to produce the contents of the brief either after the Superior Court of Justice had screened them at a hearing of which the Attorney General and the relevant police service were entitled to notice, or if the police, the Attorney General and the parties consented to the production. The Divisional Court also held that the defendant was not required to produce the statements he gave to the police.

2For the reasons that follow, I would allow the appeal in part. While I largely agree with the screening mechanism proposed by the Divisional Court, in my view, that court erred in holding that the defendant's statements to the police should not be produced.

3The Attorney General of Ontario and two police services intervened on this appeal because of concerns with some aspects of the screening mechanism. At the conclusion of these reasons, I will make some comments with respect to the impact of the decision on both Crown disclosure practice and the application of the [page233] screening process to materials used by the police in defending civil actions, which materials were created during the criminal investigation.

The Facts

4The defendant, Dr. Wagg, was an obstetrician and gynaecologist practising in the Town of Collingwood. He is now retired. On October 5, 1995, the plaintiff attended at the defendant's office for an examination because of a vaginal infection. She alleges that the defendant sexually assaulted her during that examination. She reported the incident to the police. The police conducted an investigation and took statements from the defendant and the plaintiff. The plaintiff believes that the defendant's statements to the police would confirm her allegations. The defendant was eventually charged with sexual assault.

5At trial, the Crown sought to tender the defendant's statements to the police. The trial judge, a judge of the Ontario Court of Justice, held that the police had violated the defendant's right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms. He held that the statements should be excluded from evidence at the trial under s. 24(2) of the Charter. The Attorney General has filed the transcript of the trial judge's rulings with respect to ss. 10(b) and 24(2). I will refer to those transcripts later in these reasons.

6The plaintiff was granted standing at the criminal trial for the purpose of resisting a defence motion for production of her psychiatric record. In the criminal proceedings, the plaintiff also sought access to the Crown brief. The trial judge refused that application. The plaintiff unsuccessfully appealed that decision. In the end, the trial judge stayed the proceedings because of unreasonable delay.

7In 1998, the plaintiff began a civil action against the defendant alleging that she was sexually assaulted by him in the course of a medical examination.

The History of the Proceedings

8When the defendant refused to produce the contents of the Crown brief, the plaintiff moved to compel production. The Master refused to order production. He held that the contents of the Crown brief were not relevant. The defendant no longer takes the position that the contents of the brief are irrelevant.

9The plaintiff appealed that ruling and Juriansz J. ordered disclosure and production of the Crown brief, including the defendant's statements to the police. He held that assuming [page234] there was an implied undertaking by the defendant in the criminal proceedings not to use the documents in the Crown brief for another purpose, this did not excuse the defendant from complying with rule 30.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and identifying the Crown brief in his affidavit of documents as material that he objected to producing. He also held that the defendant had not established any basis for refusing production of the documents. In the opinion of Juriansz J., in this case the documents were not sought for the purpose of launching new proceedings, which purpose would have been ulterior or collateral and would therefore have brought the implied undertaking rule into effect. In the alternative, he held that if an implied undertaking existed, it was open to the court to vary that undertaking to allow production of the documents. As to the defendant's statements, Juriansz J. held that s. 10 of the Charter has no application to civil proceedings.

10MacFarland J. granted the defendant leave to appeal to the Divisional Court, which decision is reported at [2001] O.J. No. 3082. In granting leave, she wrote, at para. 1, as follows:

Serious policy and public interests are at stake. While I have some reservation that the facts of this case may be no different than the facts in Lang v. Crowe, [2000] O.J. No. 653, when the same firm represented the Defendant in both the criminal and civil proceedings and has access to the Crown Brief where the plaintiff does not, I am told that defense counsel is prepared in this case to undertake not to use the Crown Brief for any purpose.

11Later in these reasons I will discuss the decision in Lang v. Crowe, [2000] O.J. No. 653, 131 O.A.C. 26 (Div. Ct.), which MacFarland J. mentions.

12The Divisional Court allowed the appeal and held, as I have indicated, that the existence of the Crown brief had to be disclosed but that production would be subject to a screening process by a judge of the Superior Court of Justice. However, the court held that the defendant's statement was not subject to production. The reasons of the Divisional Court can be summarized as follows.

(i) Disclosure

13The Divisional Court agreed with Juriansz J. that the existence of the Crown brief should be disclosed in accordance with rule 30.02. The defendant has not cross-appealed this part of the ruling and has served an amended affidavit of documents (albeit unsigned at the time of the hearing) that includes the index to the Crown brief. [page235]

(ii) Production

14The Divisional Court disagreed with Juriansz J. that the Crown brief must be produced to the plaintiff merely because the contents are relevant. Rather, production should not be compelled until the appropriate state agencies have "been given an opportunity to assess the public interest consequences involved and either a court order or the consent of the state and all parties is obtained" (para. 19). The court pointed out that there could be a myriad of documents and other material in the Crown brief that might be subject to privacy and other interests that the parties to the civil action will not necessarily have an interest in protecting. The court noted the concerns expressed in the Report of the Attorney General's Advisory Committee on Charges, Screening, Disclosure, and Resolution Discussions (the "Martin Report") [see Note 1 at end of the document] about "the dangers of unwarranted dissemination of Crown disclosure documents" (para. 25). Thus, there needed to be some screening mechanism by the appropriate state agency or the court before the contents of the Crown brief were produced.

15The Divisional Court rejected the position of the defendant that the implied undertaking rule precluded production of the Crown brief to the plaintiff. I will discuss the implied undertaking rule further in my reasons. Suffice it to say at this stage that the Divisional Court [(2002), 2002 23611 (ON SCDC), 61 O.R. (3d) 746] found, at para. 41, that while there is:

an implied undertaking which binds Dr. Wagg from using any documents produced to him in the criminal proceedings for any purposes collateral to the criminal proceedings . . . that implied undertaking has no application because Dr. Wagg is not seeking to use the Crown productions against the Crown or anyone else (including the plaintiff/complainant).

16More importantly, the implied undertaking rules would not adequately protect the public interest that may exist in prohibiting wider dissemination of Crown disclosure documents in particular circumstances. Thus, while the plaintiff would be precluded by the implied undertaking rule from using the documents produced to her for any purpose collateral to the present civil action, if a document from the brief were made an exhibit at trial it would then be in the public domain (para. 43).

17The Divisional Court then explained how the screening mechanism would operate. Since I agree entirely with this part of [page236] the court's reasons, I intend to summarize this part of the reasons at some length:

-- the party in possession or control of the Crown brief must disclose its existence in the party's affidavit of documents and describe in general terms the nature of its contents;

-- the party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely, the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced;

-- the judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether "there is a prevailing social value and public interest in non- disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information" (para. 51).

(iii) The statements

18The Divisional Court made clear that it was primarily concerned with setting out the screening mechanism and was not intending to determine whether any of the documents in the Crown brief should actually be produced. However, with respect to the defendant's statements to the police, a decision could be made at this juncture in view of the finding by the trial judge in the criminal proceedings that the statements should be excluded because of the Charter breach. The court disagreed with Juriansz J., who had held that the statements were not protected from production. While the Charter does not apply to strictly private litigation, the common law is informed by Charter values "whenever one party to a civil suit invokes or relies upon government action to produce what amounts to the infringement of another party's Charter rights" (para. 66). In this case, the plaintiff relied upon the Rules of Civil Procedure to compel production. The Rules are a regulation and have the force of a statute and thus the plaintiff is relying upon a rule of the state to "coerce production from another party of state conscripted, unconstitutionally obtained evidence to be used against the party whose Charter rights have been violated" (para. 66). [page237]

19The court considered that a violation of the defendant's s. 10(b) right to counsel is not a trivial occurrence. The violation led to the exclusion of the statement in the criminal proceedings and while there is a distinction between civil and criminal cases, Charter values "apply equally at this stage of the proceedings with respect to the contaminated statement of Dr. Wagg, in the circumstances of this case" (para. 68). Requiring the defendant to produce his statement would bring the administration of justice into disrepute.

20The court went on to consider whether there were any common law rules that would require a different result. The court accepted that neither res judicata nor estoppel strictly applied since the plaintiff was not a full party to the criminal proceedings. However, it was "neither appropriate nor essential that the issue be re-litigated in the civil proceedings" [para. 77]. The court took the view that the issue of whether the defendant's statement was taken in violation of the Charter was not a question in which the plaintiff had a legitimate interest. Rather, it was a matter between the defendant and the state that had been resolved by a court decision. The court held that "[A] statement cannot be taken contrary to the Charter for criminal purposes but not contrary to the Charter for civil purposes" (para. 78).

21Accordingly, at paras. 81 and 82, the Divisional Court allowed the appeal in part as follows:

The [defendant] is directed to disclose the existence of the Crown Brief in Schedule "A" of his affidavit of documents and to describe in general terms the nature of its contents. The [defendant] need not produce the documents for inspection at this stage, however. He should object to producing them in Schedule "B" on the basis of a public interest protection until the Attorney General for Ontario and the relevant Police Service have been notified and either (a) those authorities and the parties to the action have consented to production, or (b) the court, on notice to the Attorney General, the relevant Police Service, and the parties, has determined which documents in the Crown Brief, if any, are to be produced.

Notwithstanding the foregoing, the [defendant] need not produce the statement he gave to the police as part of the criminal investigation and which was ruled to have been taken in violation of his Charter rights.

The Issues

22The issues that remain to be resolved at this stage of the litigation are the following:

(a) Is production of the Crown brief subject to the screening mechanism devised by the Divisional Court? [page238]

(b) Was the Divisional Court correct in holding that the defendant's statement was not subject to production?

(c) Is a court order always required before the contents of the Crown brief can be produced? (This issue is raised by the Intervenor the Attorney General of Ontario.)

(d) Does the screening mechanism apply to police services in defending a civil action? (This issue is raised by the Intervenors the Chiefs of the Toronto and Halton Regional Police Services.)

Analysis

(a) Introduction

23Before this court, the plaintiff essentially supports the position of Juriansz J. She submits that the documents in the Crown brief are in the possession of the defendant, are not subject to any recognized privilege, and should therefore be produced. She submits that the process envisaged by the Divisional Court adds a potentially costly and unnecessary step in the proceeding. She questions the value of notifying the Attorney General and the police service. She points out that under the deemed undertaking rule, she and her counsel are precluded from using any of the information or evidence for any purpose other than that of the proceeding in which the evidence was obtained (rule 30.1). The trend has been to broaden the right of discovery and that it is considered to be in the public interest that all relevant evidence be available to the court. Finally, she argues that it is unfair that one party (the defendant) has access to relevant information that has been denied to the other party. I point out that counsel for the defendant has undertaken not to use the contents of the Crown brief in the litigation. Counsel for the plaintiff is sceptical that this is possible. He doubts that it is possible for any counsel to disabuse his or her mind of relevant information.

(b) Legal foundation for the screening process

24As the Divisional Court recognized, the screening process devised by that court is not expressly provided for in the Rules of Civil Procedure. The applicable rule is Rule 30. It provides in part as follows:

30.02(1) Every document relating to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document. [page239]

(2) Every document relating to any matter in issue in an action that is in the possession, control or power of a party to the action shall be produced for inspection if requested, as provided in rules 30.03 to 30.10, unless privilege is claimed in respect of the document.

25Rule 30.04 provides that the court may order production of any documents that are not privileged and that are in the possession, control or power of a party. Rule 30.04(6) allows a court to inspect a document to determine the validity of a claim of privilege over it [see Note 2 at end of the document]. Since the documents in the Crown disclosure are relevant, they should be subject to production under rule 30.02(2), unless some privilege applies.

26While some of the documents in the Crown brief might be privileged, in the ordinary case most would not. As the Divisional Court recognized, documents in a Crown brief are generally not subject to solicitor client or litigation privilege [see Note 3 at end of the document]. See G. (N.) v. Upper Canada College (2004), 2004 60016 (ON CA), 70 O.R. (3d) 312, [2004] O.J. No. 1202 (C.A.), Sharpe J.A. in chambers. While individual documents might be subject to a claim of privilege, the brief itself is not. The process created by the Divisional Court, however, applies to all the documents in the Crown brief.

27The Divisional Court found the jurisdiction to create the screening process in the court's inherent power to control its process and to protect that process from being abused or obstructed. I agree with this holding. The documents in the Crown disclosure come about because of the common law and Charter obligations imposed by the courts on the Crown to ensure a fair trial for the accused. The Superior Court has the power to regulate the use of such material. The Divisional Court in its reasons, at para. 48 referred to this court's decision in R. v. Savion and Mizrahi, 1980 2872 (ON CA), [1980] O.J. No. 580, 52 C.C.C. (2d) 276 (C.A.). In Savion, a pre-Charter and pre- Stinchcombe case, this court held that the court had the power to order the Crown to produce a statement to the accused. This court saw this, at p. 284 C.C.C., as "but one facet of [page240] a wider power to order production that flows from the ability of the Court to control its process so as to manifestly ensure fundamental fairness and see that the adversarial process is consistent with the interests of justice".

28As the Divisional Court pointed out, at para. 49"[A] superior court has original and plenary jurisdiction in all civil and criminal matters including inherent jurisdiction to control and regulate its process and to prevent this from being abused or obstructed". The plaintiff's "right" to disclosure and production of these documents is based on the Rules. The Superior Court must have the power to control the discovery and production process provided for by those Rules to ensure that important state and other third party interests are protected, even if the particular documents do not, strictly speaking, fall within a recognized category of privilege. As an example of the type of sensitive material that may be subject to disclosure by the Crown, see R. v. Trotta, 2004 60014 (ON CA), [2004] O.J. No. 2439 (C.A.).

(c) The implied undertaking rule

29The Divisional Court examined the implied undertaking rule to see whether that rule prevented the defendant from producing the Crown disclosure. If counsel who received disclosure from the Crown was bound not to disclose or produce that material for use in other proceedings, arguably the party could properly refuse to produce the material until relieved of the undertaking.

30In Goodman v. Rossi (1995), 1995 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906 (C.A.), this court held that there is a common law implied undertaking not to use materials disclosed in civil proceedings in any other proceedings. Morden A.C.J.O., at p. 367 O.R., explained that the principal rationale for the rule is "recognition of the general right of privacy which a person has with respect to his or her documents". Since the civil discovery process is "an intrusion on this right under the compulsory processes of the court . . . this intrusion should not be allowed for any purpose other than that of securing justice in the proceeding in which the discovery takes place". However, he also recognized that there is a broader principle, which is more directly applicable to the facts of this case. He referred, at pp. 367-68 O.R. to the reasons in Lindsey v. Le Sueur, 1913 574 (ON CA), [1913] O.J. No. 168, 29 O.L.R. 648 (C.A.), at p. 655 O.L.R., that because a party had been "given access to and the use of the documents for a particular purpose . . . there is necessarily an implication that they are not to be used for any other purpose". [page241]

31Interestingly, in his discussion in Goodman v. Rossi as to why the implied undertaking should be recognized in Ontario, at p. 369 O.R. Morden A.C.J.O. referred to the Martin Report and the views expressed in the Report "on the importance of privacy interests and of preventing the misuse of materials disclosed by the prosecution". I have already referred to the Martin Report and will return to it below.

32The common law implied undertaking rule recognized in Goodman v. Rossi does not apply to the documents in the possession of the defendant in this case because that rule was concerned with documents produced through the compulsory civil discovery process. The documents involved in this case were produced through the criminal disclosure process. Since Goodman v. Rossi, as recommended in that decision, the Rules of Civil Procedure have been amended to recognize an implied undertaking rule expressly. Thus, rule 30.1.01(3) provides as follows:

All parties and their counsel are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.

33However, like the common law rule, it applies only to evidence or information obtained inter alia under Rule 30. It would not apply to material that the defendant as accused in the criminal proceedings obtained through the criminal disclosure process as mandated by the Supreme Court of Canada in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83.

34Strictly speaking, it may not be necessary to decide whether there exists an implied undertaking rule with respect to materials provided to an accused through the criminal disclosure process. I am satisfied that it was open to the Divisional Court to place limits on the production of such materials through the screening process without resort to any implied undertaking rule. However, in light of some of the arguments made in this court, especially by the Attorney General and the Chiefs of Police, it may be helpful to sketch out some of the rationales for such a rule, since this may inform how the screening process should operate.

35A convenient starting point is the Martin Report, which dealt at some length with disclosure and flagged concerns about inappropriate dissemination of material in the Crown brief. The Committee made the following recommendations, at p. 179:

-- The Committee is of the opinion that it is inappropriate for any counsel to give disclosure materials to the public. Counsel would not be acting responsibly as an officer of the court if he or she did so.

-- The Committee is of the opinion that defence counsel should maintain custody or control over disclosure materials, so that copies of such [page242] materials are not improperly disseminated. Special arrangements may be made between defence and Crown counsel, with respect to maintaining control over disclosure materials where an accused is in custody, and the volume of materials disclosed makes it impractical for defence counsel to be present while the material is reviewed.

36From the commentary accompanying these recommendations it seems apparent that the Martin Committee's principal concern was the improper circulation of materials. The Committee gave examples of materials of a highly sensitive nature being circulated within the penitentiary or being made publicly available. The committee did not address the question of whether it believed defence counsel was under an implied undertaking not to use the materials for other purposes, an example of which is a civil suit flowing out of the criminal prosecution, as in this case.

37It appears that the Crown brief or parts of it may be produced in some civil proceedings, subject to conditions either imposed by the Crown or the criminal court, as was done in Hedley v. Air Canada (1994), 23 C.P.C. (3d) 352, [1994] O.J. No. 287 (Gen. Div.). There is no suggestion that any such conditions or orders were made in relation to the disclosure provided by the Crown in this case and there was no evidence as to whether the Crown generally attempts to impose conditions when providing disclosure to counsel for an accused.

38Also, as the courts have recognized, there is an important distinction between discovery in a civil context and disclosure in the criminal context. In the civil context, the party is, generally speaking, forced to disclose his or her own documents. Thus, as explained in Goodman v. Rossi, the primary rationale for the implied undertaking rule is founded on the general right of privacy that a person has in his or her own documents. The documents disclosed by the Crown as part of the criminal disclosure process are of a different character. Vertes J. explained the different rationale in Fullowka v. Royal Oak Mines Inc., 1998 5724 (NWT SC), [1998] N.W.T.J. No. 11, [1998] N.W.T.R. 42 (S.C.). In that case, counsel for the defendants in the criminal trials resisted disclosure of the Crown brief in related civil proceedings on the basis of a condition attached by the Crown at the time of the criminal disclosure. Vertes J. disagreed that the Crown could unilaterally attach such conditions. He wrote the following, at paras. 15-16:

The Supreme Court of Canada, in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, set out the Crown's duty to disclose to the defence all material evidence. But the court noted (at page 331) that the "fruits of the investigation" in the possession of the Crown "are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done." This approach changes the nature of the Crown's interest in disclosure materials from one of a simple proprietary right, with the corollary [page243] right to control how the document is used, to that of a more complex nature with the predominant purpose being the furtherance of the public interest in the pursuit of justice.

According to Stinchcombe, the duty of the Crown to provide full disclosure is an absolute duty subject only to the reviewable discretion regarding the withholding of certain types of information and the timing of disclosure. If the Crown could impose conditions on the recipient of the disclosure materials then can it be the case that the Crown could withhold disclosure should the recipient refuse to acknowledge those conditions? I think not. A refusal to make disclosure would violate the accused's constitutional right to a fair trial. The logical extension of the Crown's position is untenable.

39Vertes J. went on to hold that there was no statutory bar to production under the Criminal Code, R.S.C. 1985, c. C-46 or the Privacy Act, R.S.C. 1985, c. P-21. In a subsequent decision by Vertes J. in the same matter, Fullowka v. Royal Oak Mines Inc., [1998] N.W.T.J. No. 45 (S.C.), at para. 5, he held:

The point here, however, is not how or why a document may have been generated in the first place, but its relevance to this litigation. Absent some identifiable privilege, if relevant documents exist, and if they are in Legge's possession or he has power to obtain them, then they must be produced. At this stage of the proceedings there is no question of whether a document may be ultimately probative or even admissible at trial; it may not be. But that does not preclude production on pre-trial discovery. The requirement at this stage is to produce any document which may relate either directly or indirectly to any matter in question in the action.

40I agree with the Divisional Court in this case that this statement is too broad and does not give "sufficient recognition to the balancing of public versus private interests that is necessary in such circumstances" (para. 38). While the Crown's interest in the disclosure materials is different from the interest of a party to civil litigation, and while that interest is not a simple proprietary right, it does not follow that the courts should not be concerned about the use of such materials in other proceedings.

41There have been some decisions in this province concerning a possible implied undertaking rule with respect to Crown disclosure materials. In Hedley v. Air Canada, at para. 34, Blair J. considered the application of the implied undertaking rule where a party to a civil action seeks to make use of the Crown brief disclosed to that party in criminal proceedings. He could "see no policy reason why a party to a civil proceeding should be placed in a favoured position simply because that party happens to have been an accused in a related criminal prosecution -- even where that prosecution has been unsuccessful. The principle remains the same: society balances the value of compelling disclosure in criminal and civil matters with a countervailing limit engrafted upon that production; the recipient of [page244] the documents is not to utilize them, or the information contained in them, for purposes other than the proceeding in which they have been produced."

42In Hedley, Blair J. distinguished the earlier decision of the Divisional Court in Consolidated NBS Inc. v. Price Waterhouse, 1994 10979 (ON SCDC), [1994] O.J. No. 263, 111 D.L.R. (4th) 656 (Gen. Div.), in which it was held that the implied undertaking rule was inapplicable, because NBS was not a case like Hedley where the party who received disclosure sought to use the documents for a collateral or ulterior purpose. Rather, in NBS the party was being asked to produce documents that the party received as part of the Crown disclosure obligations.

43The House of Lords considered the implied undertaking rule as it applies in the criminal and civil context in Great Britain in Taylor v. Director of the Serious Fraud Office, [1998] H.L.J. No. 38, [1998] 4 All E.R. 801. Lord Hoffman, speaking for the majority, held at para. 42 that "the disclosure of documents by the prosecution as unused material under its common law obligations did generate an implied undertaking not to use them for any collateral purpose". The reference to "unused material" is material that is disclosed to the accused but does not become evidence in the criminal case. Lord Hoffman left to another day "whether the undertaking applies also to used materials and whether it survives the publication of the statement in open court" but he saw much force in the view "that the court should nevertheless retain control over certain collateral uses of the documents, including the bringing of libel proceedings" (para. 42).

44Lord Hoffman discussed the policy reasons for an implied undertaking rule respecting criminal disclosure materials, at paras. 36 and 37 of the Taylor case:

Many people give assistance to the police and other investigatory agencies, either voluntarily or under compulsion, without coming within the category of informers whose identity can be concealed on grounds of public interest. They will be moved or obliged to give the information because they or the law consider that the interests of justice so require. They must naturally accept that the interests of justice may in the end require the publication of the information or at any rate its disclosure to the accused for the purposes of enabling him to conduct his defence. But there seems to me no reason why the law should not encourage their assistance by offering them the assurance that, subject to these overriding requirements, their privacy and confidentiality will be respected.

One must also consider the interests of persons who are mentioned in the statements. Information given to the police or investigatory authorities will frequently contain defamatory or at least hurtful allegations about other people. That is to be expected in a criminal investigation. Such people may never be charged or know that they were under suspicion or that anything untoward was said about them. If such allegations are given publicity during [page245] the course of the proceedings, they will have to suffer the consequences because of the public interest in open justice. Even then, the judge will often be able to prevent the introduction of allegations about third parties which are not relevant to the issues in the case. But there seems to me no reason why the accused should be free, outside court, to publish such statements to the world at large. The possibility of a defamation action is for most people too expensive and impractical to amount to an adequate remedy.

(Emphasis added)

45The implied undertaking rule in criminal proceedings has now been codified in Great Britain in s. 17 of the Criminal Procedure and Investigations Act, 1996 (U.K.), 1996, c. 25. To summarize, an accused who has been given a document or other object pursuant to the Crown's disclosure obligations must not use or disclose it or any information recorded in it except "in connection with the proceedings for whose purposes he was given the object or allowed to inspect it". The prohibition does not apply to any object or information to the extent that it was displayed to the public in open court. The accused may apply to a court for an order granting permission to use or disclose the object or information.

46There are important policy reasons for recognizing an implied undertaking rule with respect to disclosure of materials to the defence in a criminal case. The disclosure is compulsory and required because of the public interest in ensuring that the accused obtains a fair trial of the criminal charges. However, as a result of the criminal disclosure process, individuals, including innocent third parties, may find that highly personal information is made available to the accused. These individuals must, as explained in Taylor, accept this intrusion in the interests of achieving a proper result in the criminal case, but the law should provide them with some reasonable protection against use of the information for entirely different purposes. In addition to the policy reasons referred to in Taylor, which essentially concern privacy interests of third parties, there are the policy reasons identified by the Divisional Court in this case, namely, the fact that the disclosure may contain documents over which the Crown could claim public interest immunity, that might attract privilege or which broadly speaking it is not in the public interest to produce.

47As I said earlier, it is not, strictly speaking, necessary to decide in this case whether there is an implied undertaking rule applicable to Crown disclosure. While it would seem to me that there are compelling reasons for recognizing such a rule, we did not have complete argument on the issue. As well, all persons who might have an interest in the nature and breadth of such a [page246] rule [see Note 4 at end of the document] were not before the court in this case [see Note 5 at end of the document]. I am therefore reluctant to lay down a rule in this case that could have important practical consequences in other types of litigation. Suffice it to say, the compelling reasons for possibly recognizing an implied undertaking rule justify the adoption of the screening process where the Crown brief, for whatever reason, finds its way into the hands of a party in a civil case.

(d) The nature of the screening process

48Like the Divisional Court, I can see no practical way of protecting the interests discussed by that court and by the House of Lords in Taylor without giving the bodies responsible for creating the disclosure, the Crown and the police, notice that production is sought. Further, where the Crown or police resist production the court must be the final arbiter.

49I do not think that the various interests will be protected because of the implied undertaking rule in Rule 30.1. The fact that civil counsel obtaining production is bound not to use the information for a collateral purpose may be little comfort for persons who once again find their privacy invaded, this time in civil rather than criminal proceedings. Further, the Stinchcombe obligation on the police and Crown is very broad. Subject to privilege the Crown must disclose all relevant information. If there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, the information must be disclosed. Crown counsel are urged in Stinchcombe, at p. 339 S.C.R. to err on the side of inclusion and refuse to disclose only that which is clearly irrelevant. The courts ought not to apply the discovery rules in civil cases in a way that could have an unintended chilling effect on Crown counsel's disclosure obligations.

50Admittedly, the screening mechanism devised by the Divisional Court is not a perfect solution. The obligation to notify the Crown and the police may not fully protect the privacy interests of third parties. Those third parties will be dependent upon the Crown or police protecting their interests or notifying them so that they can protect their own interests. I am also, naturally, concerned about costs to the parties by potentially having to litigate [page247] one more motion. There is also the cost to the system because of the need to resort to scarce judicial resources. The affidavit filed on behalf of the Attorney General in this case speaks to the increasing number of requests for access to Crown briefs for use in civil proceedings. However, I see no reasonable alternative.

51It is to be hoped that most of these issues will be resolved on consent without court intervention. To that end, I would offer these comments. I would expect that the parties and the state agents could usually agree to disclosure of the materials in many circumstances. Where the party in possession of the Crown brief has access to the materials, fairness will generally dictate that they be produced to the other side. This was the view of the Divisional Court in Lang v. Crowe, supra, at para. 11:

This Court accepts that there are serious policy and public interest issues which must be considered where counsel in subsequent civil proceedings seek production of Crown briefs prepared in related criminal proceedings. In this case, however, where one party has had and continues to enjoy access to certain documents which it has intimated it intends to use in its defence of the civil proceedings brought against it, documents still in the possession of its counsel of record, we are of the view that in these peculiar and particular circumstances, the overriding consideration should be fairness to all the parties. It seems to us to be inherently unfair for Goodyear [a defendant] to have the Crown Brief while it is denied to the other parties.

52As well, the parties and the state agents should agree to produce any information in the Crown brief that was used in court in the course of the criminal prosecution, subject to some interest of superordinate importance, such as private records of sexual assault complainants or confidential medical records. Thus, in Goodman v. Rossi, at p. 375 O.R., Morden A.C.J.O. would have incorporated into the common law implied undertaking rule the qualification in rule 14A of Order 24 of the Rules of the Supreme Court:

Any undertaking, whether express or implied, not to use a document for any purposes other than those of the proceedings in which it is disclosed shall cease to apply to such document after it has been read to or by the Court, or referred to, in open Court, unless the Court for special reasons has otherwise ordered on the application of a party or of the person to whom the document belongs.

(Emphasis added)

53In considering a request for production, the police and Crown will bear in mind the comments by Vertes J. in Fullowka v. Royal Oak Mines Inc., 1998 5724 (NWT SC), [1998] N.W.T.J. No. 11, that the Crown does not have a simple proprietary interest in the Crown disclosure. As he said at para. 15"the 'fruits of the investigation' in the possession of the Crown 'are not the property of the Crown [page248] for use in securing a conviction but the property of the public to be used to ensure that justice is done'." Society has an interest in seeing that justice is done in civil cases as well as criminal cases and, generally speaking, that will occur when the parties have the opportunity to put all relevant evidence before the court. The Crown disclosure may be helpful to the parties in ensuring that they secure all relevant evidence.

54The guiding objective to be applied by the parties, the state agents and the court hearing any motion for production thus ought to be what Anderson J. said in Reichmann v. Toronto Life Publishing Co., [1988] O.J. No. 961, 28 C.P.C. (2d) 11 (H.C.J.), motion for leave to appeal to the Divisional Court dismissed, [1988] O.J. No. 1333, 29 C.P.C. (2d) 66 (H.C.J.), at p. 14 C.P.C.: "The consistent tendency in this Province has been to broaden and not circumscribe the right of discovery." This principle is founded on the underlying principle accepted by the Supreme Court of Canada for both civil and criminal cases in Stinchcombe where Sopinka J. said, at p. 332 S.C.R.: "This change [to full discovery in civil cases] resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met." And as he said, at p. 335 S.C.R."[T]he principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material."

55The plaintiff submits that practically speaking a motion and attendance in court will always be required, because the person in possession of the Crown brief, usually the defendant, will always object to production. I am not as pessimistic as the plaintiff. In any event, where a party has unreasonably withheld its consent, the matter can be taken into account in fixing costs.

(e) The statements

56In my view, the Divisional Court erred in holding that the defendant should not be required to produce his statements to the police. So far as I can tell, the Divisional Court did not have before it the ruling by the trial judge in the criminal prosecution nor any of the evidence led before the trial judge. The Divisional Court held, at paras. 67 and 68, however, that violation of the right to counsel is "not a trivial occurrence" and that "Charter considerations apply equally at this stage of the proceedings with respect to the contaminated statement of Dr. Wagg, in the circumstances of this case". It is not clear how the court was able to conclude that the violation was not a trivial occurrence or what [page249] circumstances led it to conclude that the same Charter considerations apply equally in the criminal context as in the discovery phase of a civil trial. It may be that the court was of the view that any violation of the right to counsel is such a serious matter and so closely associated with the administration of justice that the same result must follow in the civil and the criminal contexts.

57In any event, I cannot agree with this conclusion. There is a broad spectrum of police conduct that can lead to a violation of an accused's s. 10(b) rights. Some violations can be very serious. Consider R. v. Burlingham, 1995 88 (SCC), [1995] 2 S.C.R. 206, [1995] S.C.J. No. 39, where the police persisted in questioning the accused although he had asked for counsel and had not had a reasonable opportunity to consult counsel. In that case, the police belittled the accused's lawyer with the express goal or effect of undermining the accused's confidence in a relationship with defence counsel and then pressured the accused into accepting a plea bargain without first having the opportunity to consult with his lawyer. Then, there are cases like R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, and R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343, [1994] S.C.J. No. 71, where the violation of s. 10(b) was found where the police failed to inform the accused of the availability of duty counsel, at a time when the law was at least unclear whether such information had to be given to the accused.

58Having read the trial judge's ruling in this case, I would not characterize the violation as particularly serious. The trial judge found that the police officer fully complied with the s. 10(b) requirements when he first began to interview the accused/defendant. The violation seems to have arisen because the police officer did not repeat the s. 10(b) right a second time, only minutes later, after the officer informed the accused of the specific allegations made by the complainant/ plaintiff.

59All this brings me to the question of the application of the Charter to civil proceedings. The Divisional Court proceeded on the basis that although the Charter did not directly apply, Charter values informed the common law and required that the "contaminated" statement not be produced. The application of the Charter in this case is a difficult question. In my view, it might well be open to the defendant to argue that the Charter directly applies at the trial. Section 24 of the Charter provides:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or [page250] freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

60The defendant could, it seems to me, argue that his rights were infringed by a state agent (the police officer) and he is therefore entitled to an appropriate and just remedy. If he sought exclusion of the statement as a remedy he would have to establish that admission of the statement would bring the administration of justice into disrepute.

61For the purposes of this case, I am also prepared to assume that the Divisional Court is correct that Charter values should inform the discovery process, including the production of the defendant's statement.

62Where I part company with the Divisional Court is in their finding that production of the statement would bring the administration of justice into disrepute. First, that determination could only be made by a court that had been apprised of all the circumstances under which the statement was made. Second, I disagree with the Divisional Court that the same considerations that would lead to exclusion of the statement in the criminal context apply in the civil context. If the statement could be admitted in the civil trial, I do not see any basis for preventing its production at the discovery stage. Third, even if a court could determine at this early stage that the statement would not be admissible at trial, in my view, it should still have been ordered produced.

63The first two points can be dealt [with] together since they hinge on the application of the decision of the Supreme Court of Canada in R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34. Subject to certain exceptions that are not germane to this case, the majority of the Supreme Court held in Stillman that "conscriptive evidence" is inadmissible at a criminal trial, even without consideration of the other categories of Collins factors (R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15). Those other factors include the seriousness of the breach and the effect of exclusion of the evidence on the administration of justice. If the evidence obtained from the defendant in this case was conscriptive and if Stillman applied equally in the civil context, the trial judge would be bound to exclude the evidence, just as the trial judge had done in the criminal case. The Divisional Court referred to this principle in its reasons, at para. 67:

Authorities such as R. v. Stillman, . . . make it clear that conscripted evidence, obtained by state action in violation of an individual's Charter rights, is inherently tainted and that such evidence -- and evidence derived from it -- is most likely to be excluded from evidence in criminal proceedings. [page251]

64The Divisional Court's error, in my view, was that the court, in effect, borrowed the Stillman analysis from the criminal context and transplanted it in the civil context without consideration of the very different issues and values at stake in the two types of proceedings. The cornerstone of the Stillman analysis is the court's understanding of a "fair trial". Conscriptive evidence obtained by violation of a Charter right is excluded from the criminal trial because it affects the accused's right to a fair trial. However"fair trial" has a very special meaning in this context: it refers to the manner in which evidence was obtained, not to the way the trial itself is conducted. This notion of trial fairness is summarized, in para. 73 of Cory J.'s majority reasons in Stillman:

It is apparent from this passage [from R. v. Collins] that the primary aim and purpose of considering the trial fairness factor in the s. 24(2) analysis is to prevent an accused person whose Charter rights have been infringed from being forced or conscripted to provide evidence in the form of statements or bodily samples for the benefit of the state. It is because the accused is compelled as a result of a Charter breach to participate in the creation or discovery of self- incriminating evidence in the form of confessions, statements or the provision of bodily samples, that the admission of that evidence would generally tend to render the trial unfair. That general rule, like all rules, may be subject to rare exceptions.

(Italics in original, bold added)

65This special meaning of trial fairness in the Charter context is itself rooted in the fundamental tenet of the criminal justice system that an accused is not required to assist the prosecution in making out a case against him or her and is not required to respond to the prosecution's case until the Crown has made out a case to meet without the compelled participation of the accused. Cory J. makes this point in Stillman, at para. 100, in referring to passages from R. v. Burlingham, at paras. 144-45:

. . . it is unfair for the Crown to make out its case in whole or in part by the use of evidence that it obtained in breach of the rights of the accused and involving his or her participation. . . .

The participation of the accused in providing incriminating evidence involving a breach of Charter rights is the ingredient that tends to render the trial unfair as he or she is not under any obligation to assist the Crown to secure a conviction.

(Emphasis added)

66The Divisional Court in this case seemed to recognize that the values underlying a civil case are different from a criminal case. At para. 75, the Divisional Court referred to a passage, from p. 659 D.L.R. of the court's earlier decision in Consolidated NBS Inc.: [page252]

There is no principle against self-incrimination in a civil proceeding. The pendulum swings in the opposite direction. A litigant is under a compulsion to submit to oral discovery and obliged to seek out relevant documents for an affidavit on production.

67However, the court did not see that this distinction made any difference to this case. It reached this conclusion on the theory that it could not accept that the "principle against self-incrimination in civil proceedings is intended to buttress and encourage production of documents conscripted from an individual through an abuse of state power and in contravention of the Charter" (para. 76). While I recognize the court's concern about abuse of state power, that provides no justification for importing into civil cases the criminal rule of automatic exclusion of conscripted evidence.

68Most importantly, however, the court failed to recognize that the rule of automatic exclusion of conscripted evidence as developed in Stillman depends on the fundamental principle that accused are not required to assist the state in making out the case against them. Given that no such principle applies in the civil context, the rationale for the Divisional Court's conclusion is undermined.

69Therefore, whether the Charter applies directly through s. 24 or indirectly by infusing the question of the admission of the defendant's statement in the civil case with Charter values, it seems to me that one is inevitably bound to consider all the circumstances of the case. It is only then that a court can decide whether admission of the evidence would bring the administration of justice into disrepute. In my view, only the trial judge would be in a position to make that determination. The trial judge would be required to consider, for example, the seriousness of the Charter violation that led to the evidence having been obtained. The trial judge would also have to take into account the effect of excluding the evidence on the administration of justice bearing in mind, for example, that the plaintiff played no part in the Charter violation and that she may require the evidence to assist her in proving her case.

70Finally, even if the statement were not admissible at the instance of the plaintiff at the civil trial, it might be held to be admissible for the purpose of impeaching the defendant through cross-examination. In the criminal context, the Supreme Court has held that the Crown will be allowed to cross-examine an accused on conscripted evidence obtained in violation of the Charter only in "special circumstances". See R. v. Cook, 1998 802 (SCC), [1998] 2 S.C.R. 597, [1998] S.C.J. No. 68, at para. 75. However, there is no reason to believe that the same test should be applied in civil cases. [page253]

71If the defendant's statement is potentially admissible at trial, it should be subject to production. I can find no policy basis for refusing production of this apparently relevant, and perhaps highly probative evidence. Even if I am wrong and the statement would not be admissible in evidence under any circumstances, in my view, the statement would still be subject to production. It is apparently relevant and its mere production may assist the plaintiff in assembling her case. I disagree with the Divisional Court that its mere production "would bring the administration of justice into disrepute" (para. 68). I cannot identify any relevant Charter values such as privacy that would weigh against mere production of the statement.

72The statement is not privileged. There is nothing in the record to indicate that the statement was provided to the police in circumstances of confidence such as those to which the Divisional Court referred, at para. 68, of Consolidated NBS Inc. In Consolidated NBS Inc., the court applied the "Wigmore Test" [J.H. Wigmore, Evidence in Trials at Common Law, McNaughton Revision, Vol. 8 (Boston: Little, Brown & Co., 1961)]. That test was held by the Supreme Court of Canada in R. v. Gruenke, 1991 40 (SCC), [1991] 3 S.C.R. 263, [1991] S.C.J. No. 80 to be a principled basis for recognizing, on a case-by-case analysis, when communications falling outside the established categories of common law privileges would be held to be privileged. The court found that the statement made by a third party to the action (an accused in the criminal case) had been given to the R.C.M.P. in circumstances that fulfilled all the requirements of the Wigmore test and was therefore privileged and not subject to production. From my reading of the trial judge's s. 10(b) ruling in this case, this statement could not meet the Wigmore criteria. Fundamentally it did not originate in a confidence that it would not be disclosed. To the contrary, the police gave the defendant the standard police caution, which includes a warning that his statement could be used in evidence at trial. To the extent that the Divisional Court seems to have held to the contrary, in my view, that was an error. [See Note 6 at end of the document]

73The final matter with which I wish to deal in respect of the statement is the question of issue estoppel. The Divisional Court recognized that issue estoppel or res judicata did not strictly apply because the plaintiff was not a full party to the criminal proceeding. The court, however, applied an abuse of process type [page254] of reasoning to hold that the admission of the statement should not be relitigated in the civil context. The court reasoned as follows, at paras. 77 and 78:

It is neither appropriate nor essential that the issue be re- litigated in the civil proceedings, in my opinion.

The question whether the accused's statement was taken by the police in breach of the Charter is not a question in which the plaintiff/complainant has a legitimate interest. It is a question between the defendant/accused and the state. It has been resolved by a court decision. A statement cannot be taken contrary to the Charter for criminal purposes but not contrary to the Charter for civil purposes. No other court determination is fitting or required in the circumstances of this case.

74A recent decision dealing with the intersection of criminal and civil proceedings is Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, which was decided well after the decision of the Divisional Court in this case. In C.U.P.E., an employee of the city had been convicted of sexual assault of a boy whom the accused had supervised in the course of his duties with the city. The city terminated his employment. The union grieved the dismissal and the arbitrator found that the offence had not occurred, and ordered the employee reinstated. Writing for the court, Arbour J. held that issue estoppel had no application because the requirement of mutuality of parties was not met. The criminal case was between the Crown and the employee. The arbitration was between the union and the city. Even if the employee and the union could be viewed as privies, the Crown, acting as prosecutor in a criminal case, was not privy with the city.

75However, the doctrine of abuse of process precluded the relitigation of the finding that the employee had committed a sexual assault. At para. 37, Arbour J. held that: "Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice". A fair reading of the C.U.P.E. case suggests that relitigation of a criminal conviction in subsequent civil proceedings will generally amount to an abuse of process. Nevertheless, at para. 52 of her reasons, Arbour J. identified circumstances where relitigation would not be an abuse of process:

There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, [page255] previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this court in Danyluk, supra, at para. 80.

76In Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, [2001] S.C.J. No. 46, at para. 80, Binnie J. held: "As a final and most important factor, the court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice."

77In my view, this is a case where fairness dictates that the original result not be binding in the new context. As I have explained, the most important feature is that the analysis of whether or not to exclude evidence for a Charter breach is entirely different in the civil context than in the criminal context. Thus, while abuse of process principles might dictate that the judge presiding in the civil proceedings should accept the finding of a Charter violation, it would work an injustice to require the plaintiff to abide by the admissibility decision made by the criminal court judge. Put another way, accepting the comment of the Divisional Court that a statement "cannot be taken contrary to the Charter for criminal purposes but not contrary to the Charter for civil purposes" does not require accepting, in the civil proceedings, the determination of admissibility made for the purpose of the criminal proceedings.

(f) The need for a court order

78The Attorney General of Ontario takes the position that a party seeking to use the Crown brief outside of the criminal proceedings for which it was produced requires a court order to do so. The Attorney General also submits that the Crown's consent "may be problematic because of confidentiality and privacy concerns belonging to witnesses and other individuals who may [be] identified in Crown disclosure materials". The Attorney General also seems to take the position that only a judge of the Superior Court of Justice would have jurisdiction to make such an order. The question of whether a Master would have the jurisdiction to conduct the screening process and make the necessary order was not the subject of argument. In G. (N.) v. Upper Canada College, Sharpe J.A. held that a Master had jurisdiction under rule 30.10 (production from non-party) to order production of a videotape in the possession of the Crown. In my view, a Master would similarly have jurisdiction to conduct the screening process mandated in this case and order production of parts of the Crown brief pursuant to rule 30.04(5). [page256]

79I agree with the Divisional Court that if the relevant police service and the Attorney General consent to production, then there is no need for a court order. While neither the police service nor the Attorney General have a simple proprietary right over the Crown brief, the brief is brought into existence through their efforts. If the police or the Crown are concerned that third party interests in the particular case are not adequately protected, they can give notice to that party and refuse to consent. There may also be cases where an order is appropriate because the Attorney General or the police seek to impose conditions on the use of the documents and the parties cannot agree on those conditions. In those cases, which would probably be rare, the court will then make the final determination. As well, there will be cases where conditions have been expressly imposed by or with the agreement of the criminal court, for example, on the use of videotaped statements by complainants in sexual assault cases. See R. v. Smith, 1994 5076 (SK QB), [1994] S.J. No. 38, 146 Sask. R. 202 (Q.B.). In those cases, a further order of the court will be required to permit production. I can, however, see no good reason for always requiring a pro forma order from a court where such concerns are not involved.

80The Attorney General also founded the argument for a court order on the basis of the implied undertaking rule. I have already dealt with the implied undertaking rule and declined to rule conclusively on whether the rule exists with respect to criminal disclosure. However, even if it did, it would undoubtedly resemble the common law implied undertaking rule dealt with in Goodman v. Rossi. In that case, Morden A.C.J.O. held, at p. 371 O.R., that a person could obtain relief from the application of the rule by a motion to the court "or the consent of the party from whom the document was obtained". This aspect of the rule is now codified in rule 30.1.01(4), which provides that the deemed undertaking "does not prohibit a use to which the person who disclosed the evidence consents".

81Where production of Crown disclosure is sought, persons other than the person who disclosed the document may have interests that need to be taken into account. Thus, the Divisional Court rightly imposed a requirement that the police and the Attorney General consent to the production of the document. However, where the parties consent and the police and the Attorney General also consent, I can see no principled basis for requiring the intervention of the court. The Crown, police or the parties may wish to attach conditions to the consent, although it would seem to me that once production has been made, the deemed undertaking rule in rule 31.1.01(3) would suffice in most circumstances to protect against improper use of the material. [page257]

(g) Defence by police of civil actions

82The Chiefs of the Toronto and Halton Region Police Services intervened in this appeal principally to put forward the position that the screening mechanism should not apply to a police force when it is required to defend itself against a civil action, such as an action for malicious prosecution. Apparently, the Attorney General has taken the position that the police service requires the consent of the Attorney General to use the contents of the Crown brief.

83I agree with the Chiefs that the screening process developed by the Divisional Court in this case does not apply to the original materials that ultimately find their way into the Crown brief. This case concerns the use of materials disclosed to the accused as part of the constitutionally mandated disclosure process. Those materials will contain copies of various kinds of documents such as officers' notes, witness statements, potential exhibits, and other materials such as copies of videotapes and photographs. The originals remain with the police, although some may be entered as exhibits. The Crown brief may also contain copies of notes or other material produced by Crown counsel. Again, the originals would remain with Crown counsel, or perhaps would be left with the police for safekeeping.

84I can see nothing in the decision of the Divisional Court that was intended to circumscribe the use that a police service may make of its own documents and other materials merely because copies of those materials found their way into the Crown brief and were disclosed to the defence. This material is essential to permit the police service to defend itself against lawsuits arising out of their investigations.

85The question of use by a former accused of material in the Crown brief in an action against the police was not before the court in this case. Accordingly, I would leave that issue for another day, where the matter is directly raised.

86To conclude, in actions against the police the screening process discussed in this case does not apply to the original materials prepared by the police during their investigation. The police would only require the consent of the Attorney General in respect of the use of materials created by Crown counsel.

Disposition

87Accordingly, I would allow the appeal in part and set aside that part of the Divisional Court's order that the defendant need not produce the statement he gave to the police as part of the criminal investigation. Ordinarily, the question of the production [page258] of the statement would now be determined by the screening process. However, this court has heard full argument on the issue and I would prefer to reduce any further unnecessary cost to the parties. The Attorney General intervened in the appeal and did not raise any specific objection to production of the statement. Counsel did submit, however, that pertinent information and relevant participants were not before the Divisional Court, and that therefore the question of production should be dealt with when the Superior Court deals with production of the entire Crown brief. It is not apparent to me, however, whether the plaintiff has an interest in the Crown brief outside the statements.

88In any event, in my view, this court is in a position to make the limited determination of whether or not to order the defendant to produce the statements. Accordingly, I would direct the defendant to provide a copy of this decision to the police service involved in taking the statement. If neither the police service nor the Attorney General opposes production of the statement within ten days, the defendant, in accordance with the Rules, will produce the statement. If the police service or the Attorney General oppose production, they will have ten days to serve and file brief written argument with this court. The plaintiff and the defendant will have ten days to serve and file a written response to that argument.

89As to costs, since success on this appeal has been divided, I would order that each side bear its own costs. The intervenors did not seek costs and I would make no order of costs against them.

Order accordingly.

Notes

1. Ontario, Report of the Attorney General's Advisory Committee on Charges, Screening, Disclosure, and Resolution Discussions (Toronto: Queen's Printer for Ontario, 1993) (Chair: The Honourable G. Arthur Martin).

2. Rule 30.04(8) provides that the court may grant leave to withhold disclosure or production where a document may become relevant only after the determination of an issue in the action, and disclosure or production before that issue is determined would seriously prejudice a party. The parties did not refer to this rule in argument and I did not understand that it had any impact on the issues to be decided in this case.

3. Different considerations apply where a person seeks access to the Crown brief outside of litigation through the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. See Ontario (Attorney General) v. Ontario (Information and Privacy Commission, Inquiry Officer) (2002), 2002 18055 (ON CA), 62 O.R. (3d) 167, [2002] O.J. No. 4596 (C.A.), application for leave to appeal to the Supreme Court of Canada dismissed, [2003] S.C.C.A. No. 31.

4. For example, the Criminal Lawyers' Association and the Advocates' Society.

5. There is, as well, a conflict in the cases about whether such a rule exists. In addition to Fullowka see R. v. Masilamany, [2004] O.J. No. 701, [2004] O.T.C. 190 (S.C.J.). On the other hand, see R. v. Little, 2001 ABPC 13, [2001] A.J. No. 69, [2001] 7 W.W.R. 155 (Prov. Ct).

6. The court said this, at para. 79: "I therefore conclude that Dr. Wagg's statement to the police is sheltered from production in the parallel civil proceedings on the basis of a Charter protection or privilege" (emphasis added).