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Court order for relief from implied undertaking for disclosure to police

Preliminary considerations for court order for disclosure to police
In the course of civil proceedings information which indicates past commission of a crime may be revealed. Civil litigants learning such information are generally not permitted to disclose that that information to the police without the consent of the person the information relates to or a court order permitting disclosure.   
 
In Juman v. Doucette, 2008 SCC 8 the rationale for the requirement of consent, or a court order, before disclosure to policing authorities was explained as follows:
 
[P]arties to civil litigation are often quick to see the supposed criminality in what their opponents are up to, or at least to appreciate the tactical advantage that threats to go to the police might achieve, and to pose questions to the examinee to lay the basis for such an approach… The rules of discovery were not intended to constitute litigants as private attorneys general.
(Juman v. Doucette, 2008 SCC 8 at para. 43).
 
Binnie J. explained that courts are able to balance the public and private interests in each case to determine whether disclosure of the discovery information to the police would be justified in a particular case:
 
[On an application for disclosure] the court will be able to weigh against the examinee’s privacy interest the seriousness of the offence alleged, the “evidence” or admissions said to be revealed in the discovery process, the use to which the applicant or police may put this material, whether there is evidence of malice or spite on the part of the applicant, and such other factors as appear to the court to be relevant to the exercise of its discretion.  This will include recognition of the potential adverse effects if the protection of the implied undertaking is seen to be diluted or diminished.
(Juman v. Doucette, 2008 SCC 8 at para. 44).
 
Where it is feared that the person alleged to have committed the crime may destroy evidence if notified of the application for permission to disclose the discovery information to the police, the application may be brought ex parte: Juman v. Doucette, 2008 SCC 8 at para. 50.
 
Generally, the issue of who should be given notice of applications for permission to make collateral use of discovery information will be dealt with by the judge before whom the application is brought. However, in Juman v. Doucette, 2008 SCC 8 at para. 52, Binnie J. stated that generally neither the police nor the media will be entitled to notice.
 
Cases considering disclosure to the police
In Juman v. Doucette, 2008 SCC 8 a childcare worker was sued after a child her in care suffered a brain injury and the Supreme Court of Canada considered the circumstances in which information covered by an implied undertaking may be disclosed to the police on the grounds that it provides evidence of past criminal conduct. The Court held that the allowing the police to take advantage of the statutorily compelled examination for discovery evidence in the civil litigation in that case would undermine the childcare worker’s constitutional right to silence and right against self-incrimination, and so refused to allow the collateral use:
 
The purpose of the application [for the discovery transcript by the Attorney General] was to sidestep the appellant’s silence in the face of police investigation of her conduct.  The authorities should not be able to obtain indirectly a transcript which they are unable to obtain directly through a search warrant in the ordinary way because they lack the grounds to justify it.      
(Juman v. Doucette, 2008 SCC 8 at para. 58).
 
In the earlier case of Tyler v. M.N.R., [1991] 2 F.C. 68 (CA) Canada Revenue Agency (CRA) learned that Mr. Tyler had been charged with narcotics offences and suspected that he had not reported the profits from his drug business for tax purposes. CRA re-assessed Mr. Tyler’s tax returns and later obtained statutorily compelled information from Mr. Tyler during discovery in the tax litigation that ensued. The RCMP wanted access to that discovery information to use in the criminal proceedings still underway. Noting that Mr. Tyler was statutorily compelled to provide information on discovery, the Federal Court of Appeal refused to permit CRA to share the information it had obtained with the RCMP.  Stone J.A., writing for a unanimous Federal Court of Appeal, held that the prosecution of crime did not, in that case, trump Mr. Tyler’s privacy interest in the disclosure of statutorily compelled information. The Supreme Court of Canada approved of this result in Juman v. Doucette, 2008 SCC 8 at para. 48).
 
In Fraser City Motors Ltd. v. Moore, 2010 BCSC 146 the defendant admitted to committing fraud on the plaintiff by falsifying motor vehicle VIN numbers in a motor dealership business. The court refused the plaintiff’s application for an order allowing disclosure of the defendant’s discovery transcript (in which he admitted the fraud) to the police:
 
In this case, the public interest in the pursuit of crime does not trump Mr. Moore’s right to silence and the protection against self-incrimination afforded him by the criminal law. There is no immediate and serious danger that would justify avoiding the requirement that the plaintiff apply for a court order for release of the transcripts to the RCMP.  The plaintiff has in good faith applied for the transcripts after having made a complaint to the RCMP.  However, in all the circumstances, I exercise my discretion to refuse the application because this is not one of those extraordinary cases that justifies overriding the public interest in maintaining the implied undertaking that protects the values and benefits of a proper pre-trial discovery.
(Fraser City Motors Ltd. v. Moore, 2010 BCSC 146 at para. 89).
 
The above cases confirm that although information indicating past commission of a crime may be disclosed in civil proceedings it will often not be in the interests of justice to order production of such information to the police. Besides concerns regarding dampening the willingness of civil litigants to be truthful about events related to the civil proceeding, such information would likely not be admissible as evidence in criminal proceedings on the basis that it was obtained in breach of the disclosing person’s right to silence.
 
 
This book was written by Michael Dew, a Vancouver lawyer who practices civil litigation, including representing claimants in motor vehicle accident claims, persons who have been denied insurance coverage by insurance companies, and persons dealing with builders lien issues.