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Use of criminal disclosure materials in civil 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.
Court order or consent required for use of criminal disclosure materials in civil proceedings
In D.P. v. Wagg (2004), 71 O.R. (3d) 229 (CA) the Ontario Court of Appeal explained that it is difficult to enunciate a simple rule regarding what use can be made in civil proceedings of Crown disclosure materials, but declined to decide whether such materials were covered by an implied undertaking:
[I]t 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….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.P. v. Wagg (2004), 71 O.R. (3d) 229 at para. 47 (CA)).
The court in Wagg preferred a screening procedure to determine whether Crown disclosure provided to a defendant in criminal proceedings should be disclosable in civil proceedings, and endorsed the following screening process (see para. 17): 
  • The party in possession or control of the Stinchcombe materials must disclose their existence in the party’s affidavit of documents and describe in general terms the nature of their contents.
  • The party in possession or control of the Stinchcombe materials should object to production of those materials 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 court 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.
As is the case for implied undertakings, consent to the use of Stinchcombe materials in civil proceedings obviates the need for a court order:  
If the relevant police service and the Attorney General consent to production, then there is no need for a court order…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.
(D.P. v. Wagg (2004), 71 O.R. (3d) 229 at para. 79 (Ont. CA)).
In Huang v. Sadler, 2006 BCSC 559 Dillon J. endorsed the screening process set out in Wagg:
I agree that the balancing of interests required prior to production of these documents requires a screening mechanism similar to the process adopted in Wagg. Where production of Crown disclosure documents is sought, the police and prosecuting authority must be notified and their consent sought.  There is no need for intervention of the court if such consent is obtained.  As accepted in Wagg at para. 81, in most cases, the undertaking that applies in all civil cases will be sufficient protection against improper use of the material.  However, in some cases and where consent is not obtained, an application under Rule 26(11) [of the British Columbia Rules of Court, B.C. Reg. 221/90] will be required.
If the matter comes for hearing, the balancing test… described in Wagg at para. 17 should be considered.  The judge should ask whether some of the documents are privileged 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 promotion of the administration of justice through full access of all parties to relevant information.
(Huang v. Sadler, 2006 BCSC 559 at paras. 18-19).
Thus, civil litigants wishing to use criminal disclosure materials in civil litigation should seek consent from the police, Crown, and opposing civil litigants, or obtain a court order, permitting such use.
Crown disclosure materials will generally be producible in civil proceeding
In D.P. v. Wagg (2004), 71 O.R. (3d) 229 (CA) the Ontario Court of Appeal said that fairness will often require that Crown disclosure materials in the hands of one civil litigant will have to be disclosed to the opposing civil litigants:
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. 
(D.P. v. Wagg (2004), 71 O.R. (3d) 229 at para. 51 (CA)).
“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’ ”. 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.
(D.P. v. Wagg (2004), 71 O.R. (3d) 229 at para. 53 (CA)).
If the defendant's statement is potentially admissible at [the civil] trial, it should be subject to production.
(D.P. v. Wagg (2004), 71 O.R. (3d) 229 at para. 71 (CA)).
Production of Crown disclosure materials was ordered in the case of Huang v. Sadler, 2006 BCSC 559. In that case an elderly women standing at a bus stop was injured when she was struck by an ambulance. Before striking the plaintiff the ambulance had been struck by a vehicle driven by the defendant Sadler. The Vancouver Police Department investigated the accident and certain of the defendants were charged criminally. Dillon J. held that the documents disclosed to the defendants by the Crown should be listed on their list of documents and produced to the plaintiff in the civil action, and that all of the parties to the civil litigation could make use of them. Factors in favour of allowing use of the documents in that case included that the Crown did not identify specific third party privacy or other interests that should be protected, there was no suggestion that the Criminal investigation would be compromised by disclosure in the civil case:
In this case, fairness of the civil trial clearly overweighs any concern for the criminal proceedings when two defendants already have most of the material, the documents are relevant, and no specific interest is in need of protection through non-disclosure.
(Huang v. Sadler, 2006 BCSC 559 at para. 20).
The court found that in that case any concern about witness tainting through exposure to other witness statements could be met through strict confidentiality conditions: Huang v. Sadler, 2006 BCSC 559 at para. 16. Dillon J. ordered that counsel and the parties in the civil case take all reasonable steps to ensure that potential witnesses in the criminal trial were not exposed to other witness statements.
In N.G. v. Upper Canada College (2004), 70 O.R. (3d) 312 (Ont. CA) the plaintiff alleged sexual assault by a school teacher and sued the teacher and the school for claims including negligence and breach of fiduciary duty. The allegations also led to criminal charges against the teacher and shortly after the arrest of the teacher the plaintiff gave the police a videotaped statement which was then disclosed to the teacher as part of the Stinchcombe disclosure materials. The school sought disclosure of the videotaped statement in the civil action and although the plaintiff consented to disclosure of the tape, the Crown opposed such disclosure on the basis that it may lead to irreparable harm through tainting of anticipated witnesses to the criminal proceeding. The Ontario Court of Appeal upheld the decision of the courts below that it would be unfair to require the school defendant to proceed to trial without the videotape, and that the public interest in preserving the integrity of the criminal proceedings could be met by an order limiting the uses the civil litigants could make of the tape, including that the parties were to take all reasonable steps to ensure that potential witnesses in the criminal trial are not exposed to the contents of the videotape. 
In Wong v. Antunes, 2008 BCSC 1739 the defendant in a motor vehicle accident claim was also charged with criminal negligence causing death in relation to the same incident. The deceased’s family commenced an action against the defendant and the court granted the plaintiff’s application for an order for production of the police file materials in relation to their investigation of the accident:
In sum, I can see no reason why, in the circumstances, the accused should be in a position to know of the police evidence or sources of evidence pertaining to the identity of the driver and the allegation of negligent operation of a motor vehicle, but the plaintiff who sues on behalf of the victim of the operator’s negligence should not. 
(Wong v. Antunes, 2008 BCSC 1739 at para. 47).
On appeal in Wong v. Antunes, 2009 BCCA 278 the British Columbia Court of Appeal varied the terms of the order made by the chambers judge, but still required production of information collected by the police.
The foregoing indicates that civil litigants in possession of Stinchcombe disclosure materials should inform opposing parties of that fact and any party that wishes to review or use those materials in the civil proceeding should seek consent or a court order permitting such review and / or use. If Crown consent is not forthcoming the court will weigh the competing interests in deciding whether, and if so to what extent, use can be made of the Stinchcombe disclosure materials.