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Undertakings with respect to disclosure materials in criminal proceedings

This book was written by Michael Dew, a Vancouver lawyer who practices civil litigation, including assisting persons who have been denied insurance coverage by insurance companies, and persons dealing with builders lien issues.
Express undertaking imposed by Crown not necessarily binding
The Crown is required to make full disclosure of all relevant information to accuseds in criminal proceedings: R. v. Stinchcombe, [1991] 3 S.C.R. 326. When making such disclosure the Crown generally imposes, in writing, an express requirement that the materials disclosed are not to be used for any other purpose. However, in Huang v. Sadler, 2006 BCSC 559 Dillon J. held that the express undertaking imposed by the Crown will not be effective in all circumstances:
The Crown cannot limit use of Crown disclosure documents for all purposes when a party is under a legal obligation to produce documents, when interests of fairness and justice in civil proceedings require disclosure, and when state and third party interests can be adequately protected through the implied undertaking rule in civil proceedings or through confidentiality conditions attached to a production order, if necessary.
(Huang v. Sadler, 2006 BCSC 559 at para. 16).
Implied undertaking applies to disclosure in criminal proceedings
In Wong v. Antunes, 2008 BCSC 1739, var’d 2009 BCCA 278 the court held that Stinchcombe disclosure materials were subject to an implied undertaking:
An accused who receives documents or information in the course of Crown disclosure is constrained by an explicit or implied undertaking not to use the documentation except for the purpose of making full answer and defence to the criminal charge. The accused is not permitted to disclose the information to the world at large. The undertaking to refrain from disclosure is no different from the implied undertaking that arises in the context of civil litigation: see Juman v. Doucette, 2008 SCC 8. The undertaking which binds the accused may be modified with the consent of the Crown, or by court order in appropriate circumstances, as in Huang and other the instances cited in that case.
(Wong v. Antunes, 2008 BCSC 1739 at para. 38).
That view was confirmed in R. v. Basi, 2011 BCSC 314:
I would affirm that an accused who receives disclosure material pursuant to the Crown’s Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in the proceeding.
As a result, I am satisfied that because the proceeding is over for which the disclosure was provided, the respondents are not entitled to make any further use of the material that remains subject to the undertaking.
(R. v. Basi, 2011 BCSC 314 at para. 42 and 45).
Implied undertaking survives limited pre-trial disclosure in court
In R. v. Basi, 2011 BCSC 314 the court held that the implied undertaking that applies with respect to Stinchcombe disclosure is not terminated as a result of limited disclosure in pre-trial applications:
Furthermore, as with interim applications in the civil context, the Application Materials, filed in support of applications for the production of documents, were not subject to the trial standard of admissibility. Indeed, materials filed in this manner became part of the court record without the adverse party having an opportunity to object on grounds of admissibility or relevance. These materials did not form “part of the record at trial.”
For the reasons articulated by Griffin J. in Bodnar at paras. 36 and 37, it is, in my opinion, immaterial that some of the Application Materials, or information contained in them, is accessible to the public from other sources. Indeed, Griffin J.’s comments apply more forcefully in the criminal context given the restrictions on the public examination of criminal files. The public availability of documents produced pursuant to Stinchcombe obligations does not of itself displace the limited purpose for which the documents were produced to the defendants. Public availability may, however, be a factor a court considers in resolving an application to vary the terms of the undertaking.
In the result, I am satisfied the use of the Application Materials in this proceeding has not resulted in the implied undertaking being spent. The respondents remain bound by their undertaking in relation to these materials.
(R. v. Basi, 2011 BCSC 314 at para. 62-64).
Orders to return disclosure materials at conclusion of criminal proceedings
In R. v. Basi, 2011 BCSC 314 the court ordered the defendants in possession of Stinchcombe disclosure materials to return those materials at the conclusion of the criminal proceedings. The court noted that in many cases the existence of the implied undertaking alone would be sufficient protection and return of materials covered by the implied undertaking would not be required, but held that the specific circumstances in that case warranted an order for return of the materials:
Although I would not hold that the protection of the implied undertaking requires an order for the return of materials in all cases, I am satisfied such an order is necessary in the circumstances of this particular case.
The factors that have led to this conclusion include:
  • the large volume of materials disclosed;
  • the high profile nature of this case;
  • the number of third party interests implicated by the disclosure and the degree to which these interests are affected; and
  • the failure of the Crown and respondents to agree upon a means of adequately protecting the undertaking.
Supplemental factors relating to individual respondents reinforce this conclusion. In the case of Dave Basi and Virk, I consider it relevant that they have pled guilty to committing breaches of trust, contrary to sections 121 and 122 of the Criminal Code, and the breaches of trust in question involved the disclosure of confidential information. In the case of Aneal Basi and Virk, I note they have clearly stated their intentions to use the material for purposes collateral to making full answer and defence in this proceeding.
(R. v. Basi, 2011 BCSC 314 at para. 73-75).