Ontario Supreme Court
D.P. v. Wagg
Date: 2002-10-04
D.P.
and
Wagg
2002
Indexed as: P. (D.) v. Wagg
Ontario Superior Court of Justice, Divisional Court, Blair R.S.J., Linhares de Sousa and Power JJ. October 4, 2002.
(No. 215/01)
Fundamental justice—Self-incrimination—Civil proceedings—Plaintiff bringing action for damages for sexual assault—Statement made by defendant to police during criminal investigation ruled inadmissible in criminal proceedings against him on basis of violation of his right to counsel—Defendant not required to produce that statement in civil proceedings.
The defendant doctor was sued by the plaintiff for damages for a sexual assault which the plaintiff claimed took place during a gynecological examination. Sexual assault charges were laid against the defendant but were ultimately stayed. In the
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course of the criminal proceedings, the defendant was provided with copies of the contents of the Crown Disclosure Brief (“the Crown Brief), which included the plaintiff’s initial statement to investigators, which was said to correspond to the allegations upon which the civil action was founded, and a statement taken from the defendant by the police during the criminal investigation which was ruled inadmissible in the criminal proceedings on the basis that it was obtained in violation of the defendant’s right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms. The plaintiff sought production of the Crown Brief. The motion was dismissed on the basis that the contents of the Brief were not relevant and therefore not producible. The plaintiff’s appeal was allowed, the order of the Master was set aside and production of the Crown Brief was ordered. The defendant appealed.
Held: appeal allowed in part.
On pure civil discovery principles, the contents of the Crown Brief appeared to be subject both to disclosure and production to the plaintiff. They were relevant, they were in the possession and control of the defendant, and no readily recognizable claim to privilege was asserted. Civil discovery regimes have long placed great emphasis on relevance. It is the touchstone for determining disclosure and production. However, there are other public interest considerations that must be weighed against the public interest consideration in favour of full production and discovery in circumstances where it is sought to compel disclosure and production of the contents of a Crown Brief in parallel civil proceedings. There may be circumstances in which the public interest in protecting legitimate privacy concerns and the integrity of the criminal investigation process itself outweigh the value we attribute to full production in a civil proceeding.
An absolute standard prohibiting disclosure and production of the contents of a Crown Brief would not be in the public interest. A litigant is entitled to know that an adverse party had in his possession or control a copy of the Crown Brief that may contain relevant documentation and information. Steps can then be taken to determine which, if any, of the contents should be produced. The defendant was obliged to disclose the Crown Brief in his affidavit of documents and to state why he objected to producing it.
A blanket rule requiring production on a Crown Brief on the simple grounds of relevance does not adequately take other public interest considerations into account. Resort to the implied or deemed undertaking rule is inadequate by itself to protect the public interest that may exist in prohibiting wider dissemination of Crown disclosure documents in particular circumstances. A screening mechanism is required to ensure that the public interest factor is adequately explored. A party who has possession or control of the Crown Brief must disclose the existence of the Brief in his or her 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, however, until the appropriate state authorities, i.e. the Attorney General and the relevant police agency, have been notified and either (a) those authorities and the parties have consented to production, or (b) on notice to the Attorney General, the relevant police agency and the parties, the court has determined whether any or all of the contents should be produced.
The defendant was not required to produce the statement which was ruled inadmissible in the criminal proceedings on the basis of a violation of his rights under
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s. 10 of the Charter. The motions judge erred in concluding categorically that the statement was not protected from production as s. 10 of the Charter has no application to civil proceedings. The common law must be interpreted in accordance with Charter values. Where government action is involved, Charter considerations must be taken into account. 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, Charter values are invoked. The plaintiff relied upon the Rules of Civil Procedure to oblige the defendant to produce his statement to the police, notwithstanding that it was taken in contravention of his Charter rights. In the circumstances, Charter values and considerations came into play and had to be considered. A violation of the right to counsel is not trivial. It goes to the heart of the proper administration of the justice system and ranks very high on the scale of Charter infringements. Requiring the defendant to produce his statement would bring the administration of justice into disrepute.
Cases considered
Consd
Fullowka v. Royal Oak Mines Inc., [1998] N.W.T.J. No. 45 (S.C.); Fullowka v. Royal Oak Mines Inc., 1998 5724 (NWT SC), [1998] N.W.T.R. 42, [1998] N.W.T.J. No. 11 (S.C.); Hedley v. Air Canada (1994), 23 C.P.C. (3d) 352 (Ont. Gen. Div.); Lang v. Crowe, [2000] O.J. No. 653 (S.C.J.); Seddon v. Seddon, [1994] B.C.J. No. 1729 (S.C.); Taylor v. Serious Fraud Office, [1998] 4 All E.R. 801 (H.L.)
Refd to
A. (L.L.) v. B. (A.), 1995 52 (SCC), [1995] 4 S.C.R. 536, 130 D.L.R. (4th) 422, 190 N.R. 329, 33 C.R.R. (2d) 87, 103 C.C.C. (3d) 92, 44 C.R. (4th) 91 (sub nom. R. v. Beharriell); Ashburton (Lord) v. Pape, [1913] 2 Ch. D. 469, [1911-13] All E.R. Rep. 708, 82 L.J. Ch. 527, 109 L.T. 381, 57 Sol. Jo. 644, 29 T.L.R. 623 (C.A.) (sub nom Ashburton v. Nocton); Bryden v. Popowich [1996] S.J. No. 477 (C.A.); Consolidated NBS Inc. v. Price Waterhouse (1994), 1994 10979 (ON SCDC), 111 D.L.R. (4th) 656, 24 C.P.C. (3d) 185 (Ont. Div. Ct.), affg 1992 8612 (ON SC), 94 D.L.R. (4th) 176, 10 C.P.C. (3d) 155 (Ont. Gen. Div.); Cook v. Ip (1985), 1985 163 (ON CA), 52 O.R. (2d) 289, 22 D.L.R. (4th) 1, 5 C.P.C. (2d) 81 (C.A.); D. v. National Society for Prevention of Cruelty to Children, [1978] A.C. 171; General Accident Assurance Co. v. Chrusz (1999), 1999 7320 (ON CA), 45 O.R. (3d) 321, 180 D.L.R. (4th) 241, 38 C.P.C. (4th) 203 (C.A.); Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, 24 O.R. (3d) 865n, 126 D.L.R. (4th) 129, 184 N.R. 1, 30 C.R.R. (2d) 189, 25 C.C.L.T (2d) 89; Kuruma, Son of Kaniu v. R., [1955] 1 All E.R. 236, [1955] A.C. 197, [1955] 2 W.L.R. 223, 119 J.P. 157, 99 Sol. Jo. 73 (P.C.); MacMillan Bloedel Ltd. v. Simpson, 1995 57 (SCC), [1995] 4 S.C.R. 725, 14 B.C.L.R. (3d) 122, 130 D.L.R. (4th) 385, 191 N.R. 260, [1996] 2 W.W.R. 1, 33 C.R.R. (2d) 123, 103 C.C.C. (3d) 225, 44 C.R. (4th) 277 (sub nom. P (J.) v. MacMillan Bloedel Ltd.); Mahon v. Rahn, unreported, 19 June 1996; McEvenue v. Robin Hood Multifoods Inc. (1997), 1997 12131 (ON SC), 33 O.R. (3d) 315, 10 C.P.C. (4th) 383 (Gen. Div.); Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 1222, [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193, 226 N.R. 201; R. v. Duong, 1998 14950 (ON SC), [1998] O.J. No. 3546; R. v. Gruenke, 1991 40 (SCC), [1991] 3 S.C.R. 263, 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 (sub nom. R. v. Fosty); R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, 195 D.L.R. (4th) 513, 266 N.R. 275, 80 C.R.R. (2d) 217, 151 C.C.C. (3d) 321, 40 C.R. (5th) 1; R. v. Savion and Mizrahi (1980), 1980 2872 (ON CA), 52 C.C.C. (2d) 276, 13 C.R. (3d) 259 (Ont. C.A.); R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, 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.
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(5th) 1; R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272, 11 C.R.N.S. 235, [1970] 4 C.C.C. 1, 11 D.L.R. (3d) 673; Reichmann v. Toronto life Publishing Co. (1988), 28 C.P.C. (2d) 11 (Ont. H.C.J.); Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, 9 B.C.L.R. (2d) 273, 33 D.L.R. (4th) 174, 71 N.R. 83, [1987] 1 W.W.R. 577, 25 C.R.R. 321, 38 C.C.L.T. 184, 87 C.L.L.C. ¶14,002; Slavutych v. Baker, 1975 5 (SCC), [1976] 1 S.C.R. 254, [1975] 4 W.W.R. 620, 38 C.R.N.S. 306, 75 C.L.L.C. ¶14,263, 55 D.L.R. (3d) 224; State of Iowa, ex rel. Gerald Shanahan v. Iowa District Court for Iowa County, 356 N.W.2d 523 (Iowa, 1984)
Statutes considered
Canadian Charter of Rights and Freedoms, ss. 10(b), 24
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 30.02(1), (2)
Authorities referred to
Jacob, I.H., “The Inherent Jurisdiction of the Court” (1970) 23 Curr. Legal Probs. 23
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)
Sopinka, J., S.N. Lederman and A.W. Bryant, Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999)
Wigmore, Evidence in Trials at Common Law, Vol. 8 (McNaughton Revision)
APPEAL from a judgment of Juriansz J. (2001), 2001 28033 (ON SC), 81 C.R.R. (2d) 182, 52 O.R. (3d) 624,8 C.P.C. (5th) 252 (S.C.J.) allowing an appeal from an order dismissing an application for disclosure and production of documents.
Paul Harte, for respondent.
Jonathan Lisus and Sarit Batner, for appellant (defendant).
BLAIR R.S.J.:—
BACKGROUND
[1] The respondent, D.P., has commenced this civil proceeding claiming damages resulting from a sexual assault she alleges took place during a gynecological examination performed on her by the appellant in October 1995. The appellant, Dr. Wagg, denies the assault.
[2] Although the appellant was charged with sexual assault, the criminal charges were ultimately stayed. The respondent commenced this civil action, in which she now seeks production of the Crown Disclosure Brief (the “Crown Brief”) prepared during the course of the criminal investigation. Copies of the contents of that
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Brief were provided to the appellant in the course of the criminal proceedings and are now in his possession and control.
[3] The Crown Brief contains not only the initial statement of the complainant to investigators (which is said to correspond to the allegations upon which the action is founded), but also a statement taken from the appellant by the police during their investigation but ruled inadmissible in the criminal proceedings on the Canadian Charter of Rights and Freedoms ground that it had been obtained in violation of his s. 10(b) right to counsel. What else it contains is not known. Respondent’s counsel believes, on the basis of comments from the Crown Attorney, that the appellant’s statement may confirm the complainant’s version of events.
[4] The respondent/complainant had been granted standing in the criminal proceedings for the purpose of resisting a defence motion for production of her psychiatric records. As a party with standing she had sought production of the Crown Brief. The attempt failed, however, as the trial judge refused her request on the basis that he had no jurisdiction to order such disclosure. This decision was ultimately confirmed by the Court of Appeal.
[5] The question to be determined on this appeal is whether a Crown Brief must be disclosed and produced in companion civil proceedings where the complainant in the criminal proceedings is the plaintiff and the accused is the defendant. Justice Juriansz ordered disclosure and production, setting aside an order of the Master who had held that the contents of the Brief were not relevant and therefore not producible. This appeal is from the order of Juriansz J.[^1]
[6] I have concluded that the existence of the Crown Brief in the possession and control of the appellant must be disclosed in the defendant’s affidavit of documents, but that production of its contents ought not to be ordered pending a review of those contents by the court, on notification to the Attorney General of Ontario and the appropriate Police Service, or upon the written consent of the parties and the Attorney General and the Police. With respect to the statement of the appellant, which was conscripted in violation of his Charter rights, I conclude that, in the circumstances of this case, it ought not to be produced in the civil proceedings.
[7] My reasons for arriving at these conclusions follow.
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STANDARD OF REVIEW
[8] The question whether the Crown Brief is subject to disclosure and production in a civil proceeding involving the complainant and the accused and arising out of the same circumstances, is a question of law. The standard of review is therefore that of “correctness”: Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193; McEvenue v. Robin Hood Multifoods Inc. (1997), 1997 12131 (ON SC), 33 O.R. (3d) 315, 10 C.P.C. (4th) 383 (Gen. Div.).
LAW AND ANALYSIS
[9] On August 24, 1998, the complainant commenced these civil proceedings. The allegations contained in the Statement of Claim are the same as those she had made to the police in September 1995. Thus, the same allegations form the basis of the civil action as formed the basis of the stayed criminal proceedings. It is therefore highly likely that the Crown Brief contains documentation that is relevant to the issues in the lawsuit. This is particularly so with respect to the appellant’s statement, which is obviously relevant.
[10] On pure “civil-discovery” principles, the contents of the Crown Brief would appear to be subject both to disclosure and production to the plaintiff. They relate to matters in issue in the action (i.e., they are “relevant”). They are in the possession and control of the defendant. No readily recognizable claim to “privilege” is asserted.
[11] The language of subrules 30.02(1) and (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is clear:
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.
(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.
[12] Civil discovery regimes have long placed great emphasis on relevance. It is the touchstone for determining disclosure and production. If the document is relevant—the maxim goes—and in the possession, control or power of the party in question, it must be produced, unless privileged. Moreover, as Anderson J. noted in Reichmann v. Toronto Life Publishing Co. (1988), 28 C.P.C. (2d) 11 (Ont. H.C.J.) at p. 14, “[t]he consistent tendency in this province has been to broaden and not circumscribe the right of discovery.” In Cook v. Ip (1985), 1985 163 (ON CA), 52 O.R. (2d) 289 at p. 292, 22 D.L.R. (4th) 1
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(C.A.), Cory J.A. stressed as well that “it is in the public interest to ensure that all relevant evidence is available to the court”, and that this “is essential if justice is to be done between the parties”.
[13] None of this has changed, in my view, and indeed there are cases in which the courts have ordered Crown Brief disclosure and production on that basis alone: see Consolidated NBS Inc. v. Price Waterhouse (1994), 1994 10979 (ON SCDC), 111 D.L.R. (4th) 656, 24 C.P.C. (3d) 185 (Ont. Div. Ct.); Lang v. Crowe, [2000] O.J. No. 653 (S.C.J.); 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.) (“Fullowka [No. 1]”) and [1998] N.W.T.J. No. 45 (S.C.) (“Fullowka [No. 2]”); and Bryden v. Popowich, [1996] S.J. No. 477 (C.A.). These cases all proceeded on the basis of a straightforward “civil discovery” analysis, and the motions judge adopted this same approach in the instant case.
[14] However, in my opinion there are other public interest considerations that must be weighed against the public interest consideration in favour of full production and discovery in circumstances where it is sought to compel disclosure and production of the contents of a Crown Brief in parallel civil proceedings. There may be circumstances in which the public interest in protecting legitimate privacy concerns and the integrity of the criminal investigation process itself outweigh the value we attribute to full production in a civil proceeding. The system cannot afford that protection where “relevance” alone is the sole criterion and disclosure and production are unchecked.
Disclosure
[15] I do not think an absolute standard prohibiting disclosure and production of the contents of a Crown Brief would be in the public interest. Clearly, there are strong public policy reasons in favour of ensuring that all relevant evidence is available to the parties and to the court in civil proceedings. Accordingly, a litigant is entitled to know that an adverse party has in his or her possession or control a copy of the Crown Brief that may contain relevant documentation and information. Steps can then be taken to determine which, if any, of the contents should be produced.
[16] In this respect, I agree with the following statement by Justice Juriansz in the case under appeal (para. 16):
As I read it, the Taylor[^2] case is not authority for the proposition that there is a bright line circumscribing criminal proceedings across which material disclosed by the Crown cannot pass. The defendant’s argument is, in effect, that the Crown Brief should be treated as non-existent for the purposes of the civil litigation.
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I see nothing in the Taylor case that would excuse the defendant from complying with Rule 30.02(1) and making disclosure of the documents. If the implied undertaking exists and applies, it does not prevent the defendant from identifying the Crown Brief in his affidavit of documents as material that he objects to producing. Unless litigants disclose documents related to the action in their affidavits of documents, and indicate why they object to produce them, opposing parties will be unable to identify the document and apply to the court for their production, and the court will be unable to consider whether they should be produced.
[17] I therefore conclude that Juriansz J. was correct in ordering that the defendant is obliged to disclose the Crown Brief in his affidavit of documents and to state why he objects to producing it.
Production
[18] Respectfully, however, I disagree with his conclusion that the contents of the Crown Brief must be produced for inspection at this stage.
[19] Just as I believe there should not be a blanket rule prohibiting disclosure and production of the contents of the Crown Brief, I also believe that a blanket rule requiring production on the simple grounds of relevance goes too far. In my opinion, production should not be compelled under subrule 30.02(2) until the appropriate state agency has 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. Upon examination of the Crown Brief, other public policy issues—both from the perspective of the state and of the competing interests of the individual litigants—must be balanced in order to determine whether, and to what extent, production should take place.
[20] Both in her reasons granting leave to appeal in this case, and in her decision in Lang v. Crowe, supra, MacFarland J. alluded to the “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”: Lang, supra, para. 11. She is correct, in my view, in flagging these other policy and public interest issues—in addition to considerations of relevance, alone—in the context of Crown Brief disclosure considerations in parallel civil suits.
[21] What are some of the “serious policy and public interest considerations” to which MacFarland J. may have been referring?
[22] The Crown Brief is prepared and its contents are created and gathered by the Crown in the exercise of its policing and prosecutorial functions, using the force of the state to do so, for the public purpose of prosecuting the accused and protecting the public against the commission of crimes. While an absolute prohibition against production of the documents comprising the Crown Brief
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would be too broad, and is unnecessary, a rule permitting production of those contents in companion civil proceedings may have far-reaching implications. It is not just in sexual assault cases where the issue may arise. There is a wide variety of criminal proceedings which could lead to civil proceedings arising out of the factual situation underlying or related to the crime alleged. Fraud cases, malicious prosecution cases, negligence cases brought against the Crown arising out of the Crown’s conduct in dealing with criminal scenarios, all come to mind for instance.
[23] The Crown Brief may be comprised of a myriad of documents as varied as the fact situations underlying criminal prosecutions. Just to list some examples, the Brief may contain such documents and information as “will say” summaries of potential witnesses’ testimony, actual statements of witnesses and others, statements of the accused and the complainant, sensitive information about police informants and witnesses, incident reports, statements of police officers, police officers’ notes, photographs, videos, expert reports, wiretap evidence, surveillance reports, DNA orders and records, and many other kinds of information. Given the infinitely varied contents of Crown Briefs, the nature of those contents, the requirement to protect the identities of certain witnesses and police informants, the need to guard the privacy and protection concerns of third party sources of information (such as child care agencies, support organizations, medical doctors, psychiatrists, psychologists, etc.), the production and possibly broadened dissemination of Crown Brief materials raises an infinite variety of potential and in many ways unforeseeable problems and considerations that need to be weighed.
[24] The parties to a companion civil proceeding—or, at least, some of them—may have nothing to gain from protecting the legitimate interests that public policy requires be protected in this context. Indeed, they may not even think of doing so, and the court—unguided by any party—may not even be aware of their existence. Hence, there is a need, in my opinion, for a mechanism to ensure the appropriate state agency has an opportunity to assert the public policy viewpoint.
[25] The Report of the Attorney General’s Advisory Committee on Charges, Screening, Disclosure, and Resolution Discussions (the “Martin Report”)[^3] expressed considerable concern about the dangers of unwarranted dissemination of Crown disclosure documents. Although made in the context of the Committee’s recommendations
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that defence counsel not give disclosure materials to members of the public (except to third parties as necessary to prepare full answer and defence) and that they maintain custody or control over those materials (which does not seem to have happened in this case), the following comments of the Committee underscore the dangers of broad dissemination of the Crown Brief:
At p. 175:
Full disclosure invariably enhances counsel’s ability to advise his or her client, and to prepare for the trial or the plea and sentencing. However, in the Committee’s view, these broad disclosure rights cannot be misused by the defence. Disclosure is an accused’s constitutional right because of its crucial role in making full answer and defence. However, it cannot be overlooked that, while the right to make full answer and defence is paramount in the realm of disclosure, there are other important, and competing, values at stake. These values include public safety, the privacy interests of victims or witnesses, and the need to maintain the integrity of the administration of criminal justice. These important values must be accommodated to the greatest extent possible.
At pp. 180-81 the Committee observed as well:
The Committee has heard of appalling instances where disclosure briefs containing highly sensitive material have been made publicly available: for example, the statement of a child complainant in an allegation of sexual assault subsequently circulated at the complainant’s school. Or, in penitentiary investigations, statements of potential Crown witnesses have been posted on bulletin boards to be perused by the general inmate population. Occurrences of this type are, in the Committee’s view, flagrant abuses of the right to disclosure. The devastating effect which such conduct can have on the privacy or safety of the victims or witnesses concerned is obvious.
Of equal concern is the chilling effect which even isolated incidents of this type can have on potential witnesses. The administration of justice is highly dependent upon witnesses coming forward to provide information that will lead to the proper conviction and punishment of those who have committed crimes. For a witness, courtroom proceedings may be inconvenient, or even traumatic, in the best of circumstances. Therefore, even occasional misuse of disclosure materials can potentially persuade large numbers of already reluctant witnesses to refrain from co-operating for fear that they will suffer the consequences of similar misuse.
The privacy of the victim and any other witnesses must yield to preparing a full answer and defence. But it need not yield any further.
[26] Save for Justice MacFarland’s caveat in Lang, supra, and her comments in granting leave to appeal in this matter, none of the cited cases in which production of the Crown Brief has been ordered have considered in any depth whether there are other broad public and policy issues that need to be weighed in the balance against the “civil discovery” principles on this question.
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[27] As noted above, this court has ordered production of documents given to a party as part of Crown disclosure within criminal proceedings in two cases, namely, Consolidated NBS Inc. v. Price Waterhouse, supra; and Lang v. Crowe, supra.
[28] In Consolidated NBS Inc., the court ordered production, relying on the statements of Anderson J., in Reichmann v. Toronto Life Publishing Co., and of Cory J.A. (as he then was) in Cook v. Ip, cited above. Montgomery J. said (at paras. 8 and 9):
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. (Citation from Cook v. Ip omitted)
In our view, the documents obtained from the Crown must be produced to counsel for Price Waterhouse for purposes of this litigation.
[Emphasis in original omitted]
[29] Speaking for the court in Lang, MacFarland J. said (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 or record, we are of the view that in these peculiar and particular circumstances, the overriding consideration should be fairness to all the parties.
[30] In Lang, however, the court specifically “[left] for another day those issues of when it will be appropriate in general terms to produce a Crown Brief and a consideration of [those] important policy issues” (para. 12). Moreover, in the two Fullowka v. Royal Oak Mines Inc. cases referred to above, Justice Vertes intimated that there may be underlying public policy or special privilege interests that might preclude specific documents provided in the context of Crown disclosure from being produced. He did not apply those principles in the matters before him, however, opting instead to order production as a general rule, based upon relevancy.
[31] In Fullowka [No. 1], supra, Vertes J. ordered production of documents in the possession of defendants as a result of Crown disclosure in a criminal proceeding. The related civil proceeding was an action for damages arising from the wrongful death of nine men killed in a bomb blast during labour unrest at a mine in Yellow-knife. The defendants had been convicted of various criminal acts in relation to the labour dispute. The allegations were that they had conducted themselves in such a way as to create an atmosphere which led to the violence, and that their criminal acts therefore had
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a causal connection to the deaths. The defendants had given their former counsel authorization to release the documents, but counsel was reluctant to do so in view of conditions the Crown had sought to impose as a term of the disclosure in the criminal proceedings. The Crown alleged that the documents were property of the Attorney General of Canada and that disclosure of them to others could lead to prosecution under the Criminal Code or a complaint under the Privacy Act.
[32] The applicable rule of procedure in the Northwest Territories is comparable to Ontario’s rule 30.02. Justice Vertes ordered production. He said (at para. 21) that “[in his] opinion, absent some issue regarding relevance or perhaps some other specific point of privilege which may apply to specific documents, in general documents obtained by way of Crown disclosure are subject to production in civil proceedings.” He concluded the documentation in question was relevant and that there was no “privilege” that precluded their production.
[33] It should be noted that the Crown had been given notice of the application but had decided not to appear on it.
[34] Justice Vertes observed that the term “privilege” was not quite accurate in this context. He pointed out that there could be no solicitor-client privilege or litigation privilege attached to the documents, since they were received from a third party and not prepared by the defendants’ legal advisors for purposes of the litigation. At para. 12 he stated that:
If there is any “privilege” it would have to be somehow based on the condition imposed by the Crown on defence counsel or on some point of policy.
(emphasis added)
[35] In this regard, Vertes J. rejected the notion that the Attorney General had any proprietary interest in the documents and concluded that the condition which the Crown purported to impose on dissemination of the Crown documents was meaningless. He also rejected the potential of a complaint under the Privacy Act or of a prosecution under the Criminal Code. In doing so, he made the following remarks concerning the Crown’s Stinchcombe obligations (at para. 15):
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 right to control how the document is used,
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to that of a more complex nature with the predominant purpose being the furtherance of the public interest in the pursuit of justice.
(emphasis added)
[36] I agree generally with those remarks. However, in my respectful view, they point more to the need for some sort of screening mechanism by the appropriate state agency or by the court before production of the contents of the Crown Brief takes place, rather than to a general rule that such documents are to be produced in civil proceedings without such a screening taking place. The contents of the Crown Brief, as the Supreme Court explained in Stinchcombe, are “the property of the public to be used to ensure that justice be done” and the Crown has an interest in them “of a more complex nature with the predominant purpose being the furtherance of the public interest in the pursuit of justice”. This may well be the type of “privilege” based on “some point of public policy” to which Vertes J. was alluding in para. 12 of his reasons, or it may be what he had in mind when he referred in para. 21 to “some other specific point of privilege which may apply to specific documents”. To my mind, in any event, these comments underscore the need for a screening mechanism to ensure that the public interest in maintaining the integrity of the criminal investigatory and prosecutorial system is protected before production of the contents of the Crown Brief is effected.
[37] In Fullowka [No. 2], supra, Justice Vertes also ordered production of Crown disclosure documents from an additional defendant in the same civil proceedings arising out of similar circumstances. He referred to his reasons in Fullowka [No. 1], and stated (at paras. 4 and 5):
In my opinion, it is not the nature of the charges or the result that makes production necessary. This is not a question of imputed liability or an admission of culpability; it is simply a question of production of documents, in Legge’s possession or control, that may be relevant to the issue in this action as framed by the pleadings.… If there are documents in the Crown disclosure possessed by Legge that may be relevant to those issues then they must be disclosed.
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.
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[38] With respect, I do not think this approach gives sufficient recognition to the balancing of public versus private interests that is necessary in such circumstances. The result may turn out to be the same in the end, but a screening process is necessary to ensure the adequate consideration of other public policy issues.
The Implied Undertaking Rule
[39] Mr. Lisus argued there is an implied undertaking that precludes the use of information generated and provided to an accused in the course of criminal investigations for collateral purposes in subsequent civil proceedings. In this respect he relies upon the decision of the Ontario Court (General Division) in Hedley v. Air Canada (1994), 23 C.P.C. (3d) 352, and the decision of the House of Lords in Taylor v. Serious Fraud Office, [1998] 4 All E.R. 801 (H.L.).
[40] In Hedley v. Air Canada, the court concluded that Mr. Hedley, who had obtained Crown disclosure in the course of a criminal proceeding that was ultimately stayed against him, was precluded by the implied undertaking rule from using the disclosure Brief in an action subsequently commenced by him for malicious prosecution. In Taylor v. Serious Fraud Office, Mr. Taylor was prohibited from using a letter that had been provided to him in the course of a criminal investigation against him in order to found a libel action against the author of the letter. Writing for the court on the implied undertaking issue in Taylor, Lord Hoffmann remarked (at p. 808 All E.R.):
The implied undertaking in civil proceedings is designed to limit the invasion of privacy and confidentiality caused by compulsory disclosure of documents in litigation. It is generated by the circumstances in which the documents have been disclosed, irrespective of their contents. It excludes all collateral use, whether in other litigation or by way of publication to others. On the other hand, the undertaking may be varied or released by the courts if the interests of justice so require, and unless the court otherwise orders, ceases to apply when the documents have been read to or by the court, or referred to, in proceedings in open court: RSC Ord 24, r 14A.
[41] The implied undertaking—or, in Ontario, the deemed undertaking pursuant to Rule 30.1—may have some overall relevance in the context of Crown Brief disclosure in civil proceedings. However, it does not work in the way in which counsel submitted, and Juriansz J. was correct, in my view, in rejecting it on that basis. 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: see Hedley v. Air Canada, supra, and Taylor v. Serious Fraud Office, supra. Here, however, that implied undertaking has no application because
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Dr. Wagg is not seeking to use the Crown productions against the Crown or anyone else (including the plaintiff/complainant): see Consolidated NBS Inc. v. Price Waterhouse, supra.
[42] However, if the contents of the Crown Brief were disclosed and produced to the plaintiff, she would be affixed with an implied and deemed undertaking not to use the documents for any purpose other than the civil proceeding. Vertes J. was alive to this limitation on the use of Crown disclosure documents produced to other parties in civil proceedings as well in Fullowka [No. 1], supra. At para. 19, he states:
The rule could apply to Crown disclosure documents where the party obtaining the disclosure, i.e., the defendant in the criminal proceeding, attempts to use information in the disclosure to launch civil proceedings. Such was the situation in Hedley v. Air Canada [citation omitted]… But that is not the situation here. The defendants… do not intend to use the Crown disclosure documents to launch new and different proceedings. They are responding to the obligation in these proceedings to produce all relevant documents in their possession or control. Any attempt as well by the plaintiffs to use the documents so produced for purposes apart from this action would likewise be met by the implied undertaking rule.
(emphasis added)
[43] I am not persuaded, however, that resort to the implied or deemed undertaking rules is adequate by itself to protect the public interest which may exist in prohibiting wider dissemination of Crown disclosure documents in particular circumstances. What would happen, for example, if the plaintiff produces a document from the Crown Brief at trial, and it becomes an exhibit? Is it thereby in the public domain? It is suggested in Taylor v. Serious Fraud Office, supra (at p. 808 All E.R.) that the undertaking ceases to apply in such circumstances. Presumably an order could be made by the trial judge banning publication, but that raises another whole gamut of different issues and may provide little protection against publication in the end. Furthermore, what if neither the plaintiff nor the defendant has any objection to the exhibit being made public at that stage, but there is something in the document that deserves protection from publication on broader public policy grounds? Who is in the courtroom at that stage to raise those issues? The judge cannot be expected to do so, for he or she would not have any awareness of the particular sensitivities relating to the document from the Crown’s perspective.
[44] Thus, while the implied or deemed undertaking rules are of some assistance in dealing with the problem, they are not sufficient by themselves, in my opinion, to resolve it. A screening mechanism is required to ensure that the public interest factor is adequately explored.
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The Screening Mechanism
[45] The solution I propose is that a party who has possession or control of the Crown Brief must disclose the existence of the Brief in his or her 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, however, until the appropriate state authorities (i.e., the Attorney General and the relevant Police agency) have been notified and either (a) those authorities and the parties have consented to production, or (b) on notice to the Attorney General, the relevant Police agency and the parties, the court has determined whether any or all of the contents should be produced.
[46] I recognize this may be a somewhat cumbersome procedure, but it is necessary, in my opinion, to ensure the proper administration of justice. I also recognize there are no provisions in the Rules of Civil Procedure providing for such a screening mechanism. The proposal is consistent, however, with the emphasis placed by the House of Lords in Taylor v. Serious Fraud Office on the importance of the court retaining control over the documents in such circumstances. Referring to the English decision of Brooke J. at first instance in Mahon v. Rahn,[^4] Lord Hoffmann said (at p. 810 All E.R.):
Brooke J. said that in his view the general principle was that the use of documents disclosed for the purpose of legal proceedings should remain under the control of the court. The undertaking could always be varied in an appropriate case but the court should retain control. It was a necessary tool for preventing its process from being abused.
[47] At p. 812 All E.R., Lord Hoffmann concluded:
In my opinion, therefore, the disclosure of documents by the prosecution as unused material under the common law obligations did generate an implied undertaking not to use them for any collateral purpose. I agree with the reasoning of Brooke J. on this point in Mahon v. Rahn… There seems to me much force in his view that the court should nevertheless retain control over certain collateral uses of the documents, including the bringing of libel proceedings.
[48] The notion of the court reserving control over documentation contained in the Crown Brief is consistent with, and supports, the court’s general jurisdiction to control its own process in order to protect the public interest and ensure the proper administration of justice. In R. v. Savion and Mizrahi (1980), 1980 2872 (ON CA), 52 C.C.C. (2d) 276, 13 C.R. (3d) 259 (Ont. C.A.), Zuber J.A. referred [at p. 284 C.C.C] to “the ability of the Court to control its process so as to manifestly
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ensure fundamental fairness and see that the adversarial process is consistent with the interests of justice” (Emphasis added).
[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: see MacMillan Bloedel v. Simpson Ltd., 1995 57 (SCC), [1995] 4 S.C.R. 725, 33 C.R.R. (2d) 123; R. v. Duong, 1998 14950 (ON SC), [1998] O.J. No. 3546, per Smith A.C.J.O.C. In MacMillan Bloedel, the Supreme Court of Canada cited with approval (at para. 30) the following passage from I.H. Jacob’s “The Inherent Jurisdiction of the Court” (1970) 23 Curr. Legal Probs. 23 (at p. 25), on the history of inherent jurisdiction:
[T]he superior courts of common law have exercised the power which has come to be called “inherent jurisdiction” from the earliest times, and… the exercise of such power developed along two paths, namely, by way of punishment for contempt of court and of its process, and by way of regulating the practice of the court and preventing the abuse of its process.
(emphasis added)
[50] I am therefore satisfied that the court has the authority to make the ruling and give the directions respecting the process that I propose. But what is the rationale for exercising that authority in the circumstances?
[51] The rationale rests, in my opinion, in the protection of the public interest as I have outlined it above and in the promotion of the effective administration of justice in that context. There are aspects of both the notion of “privilege” (i.e., the protection of confidential communications within the context of Crown disclosure and Stinchcombe) and the notion of “public interest immunity” (i.e., the right of government and its agencies to assert an immunity from disclosure in the public interest) underlying this thinking. However, whether the exercise of the authority is founded upon one or the other of such concepts is less important than the underlying premise behind both. That underlying premise is—as I understand the concepts—that 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.
[52] In State of Iowa, ex rel. Gerald Shanahan v. Iowa District Court for Iowa County, 356 N.W.2d 523 (Iowa, 1984), the Supreme Court of Iowa ruled that the State was not required to disclose the contents of a murder investigation file to families of the deceased and the defendant in a civil suit brought by those families for wrongful death. It founded its decision on a “qualified state privilege”, which
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it said was supported by statute. Section 622.11 of the relevant Iowa Code stipulated that:
A public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.
[53] However, in conducting the public interest analysis, the Iowa Supreme Court also resorted to a broader non-statutory principle. At para. 14, it said:
Even in the absence of controlling statutes, courts have recognized this important public purpose of allowing criminal investigation to be conducted in relative secrecy. As concisely stated in Black v. Sheraton Corporation of America, 50 F.R.D. 130(D.D.C. 1970):
The results of investigations of alleged criminal activity are by their nature the type of information that the public interest requires be kept secret.
[54] Sopinka, Lederman and Bryant, the authors of The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), deal at length with the notions of privilege in chapters 14 (Privilege) and 15 (Public Interest Immunity) of their text. The following passages are instructive:
Chapter 14: Privilege
At p. 713 (para. 14.1)
The exclusionary rule of privilege… is based upon social values, external to the trial process. Although such evidence is relevant, probative and trustworthy, and would thus advance the just resolution of disputes, it is excluded because of overriding social interests.
At p. 715 (para. 14.7)
In addition to concerning itself with the protection of confidential communications within certain important societal relationships, privilege may be invoked to preserve society as a whole when disclosure may jeopardize the national security of the country or impair the expeditious administration of the government or hinder police authorities in obtaining information from sources…. These categories of privilege are based upon diverse sets of external values worthy of protection even in the face of hindering the effectiveness of the trial process. Accordingly, there always exists a tension when the doctrine of privilege is invoked as it consequentially obstructs the truth-finding process. That being the natural result, the courts have not shown great eagerness to proliferate the areas of privilege.
[55] The authors point out in a footnote that this latter aspect of “privilege” may more aptly be described as “immunity from disclosure”, and refer the reader to their chapter on public interest immunity. There, the following may be found:
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Chapter 15: Public Interest Immunity
At p. 855 (para. 15.1)
In many lawsuits, both civil and criminal, documents and information in the possession and control of the executive branch of government and various government agencies and employees are relevant to issues in dispute. Claims for disclosure of such documents and information can involve a conflict between public interests. The public interest in the administration of justice is promoted through full access of litigants to relevant information. The public also has an interest in protecting the country from the damage to national security and international relations that could be caused by the disclosure of state secrets. Also, damage to the process of government decision-making and functioning may be caused by disclosure of other government documents. In those areas where the public interest favours non-disclosure, the government may assert an immunity from disclosure.
At pp. 855-56 (para. 15.2)
This government right, where it can be successfully asserted, is more appropriately labelled an “immunity” rather than a privilege. The assertion of the immunity claim may result in the non-disclosure of reports, memoranda and communications, just as in the case of a traditional privilege. However, unlike the private privileges, such as that relating to communications passing between solicitor and client, this public immunity belongs not to any private party, nor to any witness. It is most often asserted by government, either during the discovery process, where the government is a party to the action, or at trial, where the government has been served with a subpoena duces tecum. It applies whether or not the government is a party to the litigation.
[56] The Ontario Court of Appeal dealt with issues surrounding solicitor-client privilege and litigation privilege in General Accident Assurance Co. v. Chrusz (1999), 1999 7320 (ON CA), 45 O.R. (3d) 321, 180 D.L.R. (4th) 241 (C.A.). The majority rejected a balancing of interests approach in connection with litigation privilege, but Rosenberg J.A. (at p. 369 O.R.) endorsed the idea of taking such an approach “for dealing with emerging claims of privilege such as those claims dealt with in Slavutych v. Baker, 1975 5 (SCC), [1976] 1 S.C.R. 254, 55 D.L.R. (3d) 224 and R. v. Gruenke, 1991 40 (SCC), [1991] 3 S.C.R. 263, 67 C.C.C. (3d) 289”. Slavutych and Gruenke are the decisions in which the Supreme Court of Canada adopted the Wigmore analysis of privilege as the test for determining whether communications in the context of particular relationships are privileged or not: see also R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, 80 C.R.R. (2d) 217, and A (L.L.) v. B. (A.), 1995 52 (SCC), [1995] 4 S.C.R. 536, 33 C.R.R. (2d) 87.
[57] I have some reservations about whether the notion of protecting privileged communications in special sorts of relationships, based upon Wigmore’s four principles, can apply to the communication of the Crown Brief itself from Crown to accused, or to the further disclosure and production of that Brief by the accused cum
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defendant in the civil lawsuit. As set out in Wigmore, Evidence in Trials at Common Law, Vol. 8 (McNaughton Revision), para. 2285, those criteria are that:
a) the communication must originate in a confidence that they will not be disclosed;
b) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
c) the relation must be one which in the opinion of the community ought to be sedulously fostered; and that,
d) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
[58] The Crown Brief itself, however, is not communicated to the accused on the premise that its contents will be kept in confidence. It is communicated in accordance with the Crown’s Stinchcombe obligations to disclose and for the specific and limited purpose of enabling the accused to make full answer and defence. In the course of doing the latter, it is evident that the accused and the accused’s lawyers will have to utilize the information and documents disclosed in a variety of ways, including the further disclosure of its contents to others.
[59] Nonetheless, there may be documents contained in the Crown Brief which were themselves created and communicated to the Crown in circumstances that attract the Wigmore criteria for protection, and there may be arguments for the attachment of a public interest immunity to the Crown Brief or to some of its contents. Hence the importance of ensuring, in the overall public interest, that these questions can be raised and determined in a forum where the input of the state, and perhaps others (e.g. child service agencies, abuse crisis centres) has been ascertained.
[60] In any event, the purpose of this ruling (with one exception) is not to determine whether production of the documents in the Crown Brief is called for in this case. It is to establish a screening mechanism for determining—with input from the appropriate state or other agencies and, if necessary, after an order of the court—whether there are any such overriding principles governing the contents of the Crown Brief in question that outweigh the normal imperatives of production in the civil discovery process.
[61] I close on this point with the words of Lord Simon in D. v. National Society for Prevention of Cruelty to Children, [1978] A.C. 171 at p. 233:
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The various classes of excluded relevant evidence may for ease of exposition be presented under different colours. But in reality they constitute a spectrum, refractions of the single light of a public interest which may outshine that of the desirability that all relevant evidence should be adduced to a court of law.
The Statement
[62] One of the documents contained in the Crown Brief in this case is a statement extracted from Dr. Wagg by the police in the course of the criminal proceedings in violation of his Charter rights.
[63] Generally speaking, in any given case, the determination of whether a civil litigant’s prior statement to investigating authorities in the criminal case should be produced in the civil proceeding will be made in the exercise of the court’s discretion as part of the screening process I have outlined above. At that time, the relevant participants and the court should have available all of the pertinent information relating to the taking of the statement upon which such a determination can be properly based. The court always has a discretion whether to order or exclude production in the particular circumstances. I indicated at the outset of these reasons, however, that in the circumstances of this case, a decision may be made now as to whether Dr. Wagg’s statement ought to be provided for inspection as part of his obligation to produce relevant documentation in this civil proceeding, and that, in my view, it ought not to be.
[64] The motions judge concluded that “section 10 of the Charter has no application to civil proceedings”, and therefore that the statement was not protected from production by the fact that it had been obtained in violation of Dr. Wagg’s Charter rights. Respectfully, I disagree.
[65] It is true that the Charter does not apply to strictly private litigation between private litigants not invoking state action. However, the authorities indicate that the common law must be interpreted in accordance with Charter values and that where government action is involved Charter considerations must be taken into account and the legislation—i.e., government action—measured against it: see Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, 25 C.R.R. 321; Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, 30 C.R.R. (2d) 189, per Cory J. at pp. 1164-72 S.C.R., pp. 213-19 C.R.R. In Dolphin Delivery, at pp. 602-03 S.C.R., pp. 343 C.R.R., Mclntyre J. said:
It would also seem that the Charter would apply to many forms of delegated legislation, regulations, Orders in Council, possibly municipal by-laws, and bylaws and regulations of other creatures of Parliament and the legislatures. It is not suggested that this list is exhaustive. Where such exercise of, or reliance upon, governmental action is present and where one private party invokes or relies upon it to produce an infringement of the Charter rights of another, the Charter will be applicable.
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Where, however, private party “A” sues private party “B” relying on the common law and where no act of government is relied upon to support the action, the Charter will not apply.
(emphasis added)
[66] I take it from the foregoing that 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, Charter values are invoked. Such is the case here. The Rules of Civil Procedure compel parties to a civil proceeding to produce all relevant documentation that is not privileged. They are regulations that have the force of a statute. The respondent relies upon them to oblige the appellant to produce his statement given to the police in the course of the criminal investigation, notwithstanding it was taken in contravention of his Charter rights. Thus, it is a rule of the state that is relied upon by one party to the civil proceeding to coerce production from another party of state conscripted, unconstitutionally obtained evidence to be used against the party whose Charter rights have been violated. I am satisfied that in the circumstances of this case Charter values and considerations come into play and must be considered. The motions judge therefore erred in principle in concluding categorically that s. 10 of the Charter does not apply in civil cases.
[67] Here, Dr. Wagg’s statement was extracted in contravention of his s. 10(b) right to counsel. A violation of that right is not a trivial occurrence. It goes to the heart of the proper administration of our justice system and, in my view, ranks very high on the scale of Charter infringements. Authorities such as R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, 42 C.R.R. (2d) 189 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.
[68] These are not criminal proceedings, and I recognize that there is a significant difference between the admissibility of evidence at trial and production for purposes of discovery. However, for the reasons articulated above, I am satisfied 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. I note, as well, that while other parts of the Crown Brief in question were ordered produced in Consolidated NBC Inc. v. Price Waterhouse, supra, the defendant/accused’s statement to the police was ordered not to be produced by the Divisional Court. The rationale specified was that the statement had been given to the police in confidence on the understanding that it would not be used
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against him. It seems to me that an agreement between an accused and the police of that sort cannot be put on any higher ground than the guarantees enshrined in the Charter of Rights and Freedoms. Requiring the appellant to produce his statement would bring the administration of justice into disrepute.
[69] Three other considerations respecting production of Dr. Wagg’s statement need to be addressed.
The common law inclusionary rule
[70] The first is the general common law rule that, with few exceptions, the manner in which evidence is obtained no matter how improper or illegal, is not an impediment to its admissibility: see Sopinka, Lederman and Bryant, The Law of Evidence in Canada, supra, at pp. 404-05; R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272, 11 D.L.R. (3d) 673. This general inclusionary rule applies equally in civil cases as well as in criminal cases: Kuruma, Son of Kaniu v. R., [1955] 1 All E.R. 236, [1955] A.C. 197 (P.C.).
[71] Although the court’s discretion to alleviate against the adverse affects of the rule was limited, the rule was not immutable, however. In England, an exception was developed which permitted the owner of a confidential or privileged document improperly obtained by another to obtain an injunction compelling the return of the purloined document to its owner prior to disclosure: Ashburton (Lord) v. Pape, [1913] 2 Ch.D. 469, [1911-13] All E.R. Rep. 708 (C.A.). In Canada, in my view, the enactment of the s. 24 remedy regarding the exclusion of evidence under the Charter has changed the landscape in this area dramatically. The principles underlying the common law inclusionary rule must be considered with reference to an individual’s Charter rights where state action or compulsion is engaged. This latter approach was taken by the British Columbia Supreme Court in Seddon v. Seddon, [1994] B.C.J. No. 1729, for instance.
[72] Seddon was a custody case. At trial, the petitioner husband attempted to introduce into evidence certain tape recordings he had obtained illegally by surreptitiously placing recording devices in the family home over a period of time. The tapes included conversations between the parties and between the respondent and her children. They apparently suggested that she used profanity towards the children, yelled at them and used inappropriate, derogatory phrases to describe them and their actions.
[73] The court in Seddon refused to admit the tapes. In arriving at this conclusion, Thackray J. decided it “would clearly bring the administration of justice into disrepute” to admit such evidence (at para. 23). He acknowledged the stringent pre-Charter common law rule against excluding illegally obtained evidence, but concluded
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that Mrs. Seddon’s privacy rights under the Charter had been seriously violated in the circumstances and that the formerly very narrow discretion of the court to exclude such evidence “has been expanded by the Charter” (at para. 24).
[74] Seddon was not a production case and, indeed, it did not even involve state action in the way the instant case does. However, it is an example of the courts recognizing an existing and expanded post-Charter discretion to exclude illegally obtained documents or materials where the facts justify the exclusion on public policy grounds relating to the proper administration of justice. It thus supports the conclusions I have reached in this case.
The principle against self-incrimination
[75] Similarly, I do not think it is an argument in favour of production of a Charter-tainted statement to say that the principle against self-incrimination does not apply in civil cases. In NBS Consolidated Inc., supra, the Divisional Court declined to order general production of the Crown disclosure documents at least partly on that basis. Speaking on behalf of the court, Montgomery J. said (at p. 659 D.L.R.):
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.
[76] I observe in passing that the Divisional Court did not apply this concept when it came to the production of the defendant’s statement to the police which, as I have noted, the court declined to order produced. Moreover, the principle was not being applied in the context of an attempt to obtain production of documents obtained through a violation of Charter rights. It is true there is no protection against the production of documents in a civil proceeding that are “self-incriminatory” in the sense they harm a party’s position or support that of the opponent. I do not think, however, 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.
Estoppel
[77] Finally, it makes no difference, in my view, that the plaintiff (complainant in the criminal proceedings) was not a “party” to the criminal proceedings in the normal sense, and therefore that res judicata or estoppel principles do not strictly apply with respect to the decision of the judge in the criminal proceedings to exclude
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Dr. Wagg’s statement on s. 10(b) grounds. Although she was a party with standing in the criminal proceedings, the complainant had been refused production of the Crown Brief in those proceedings on jurisdictional grounds, a decision upheld in the Court of Appeal. It is neither appropriate nor essential that the issue be re-litigated in the civil proceedings, in my opinion.
[78] 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.
[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.
CONCLUSION AND DISPOSITION
[80] For the foregoing reasons, then, the appeal is allowed in part.
[81] The appellant 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 appellant 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.
[82] Notwithstanding the foregoing, the appellant 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.
[83] If the parties cannot agree on costs, brief written submissions may be delivered within 30 days of the release of this decision.
Appeal allowed in part.
[^1]: P. (D.) v. Wagg (2001), 2001 28033 (ON SC), 81 C.R.R. (2d) 182, 52 O.R. (3d) 624, [2001] O.J. No. 595 (S.C.J.).
[^2]: Taylor v. Serious Fraud Office, [1998] 4 All E.R. 801 (H.L.).
[^3]: 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).
[^4]: Unreported, June 19, 1996.