Bourgeois Estate et al. v. Bolen, (2004) 351 A.R. 244 (QB)

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 28, 2003
• Citations: (2004), 351 A.R. 244 (QB);2004 ABQB 35

Bourgeois Estate v. Bolen (2004), 351 A.R. 244 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. FE.019

Yvette Bourgeois, Rene Bourgeois and Yvette Bourgeois and Rene Bourgeois, Administrators of the Estate of Raymond Bourgeois, Deceased, on Behalf of the Estate of Raymond Bourgeois, Deceased (plaintiffs/applicants) v. Matthew Alexander Bolen (defendant/respondent)

(0003 11587; 2004 ABQB 35)

Indexed As: Bourgeois Estate et al. v. Bolen

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

January 23, 2004.

Summary:

Bolen was the driver of a car involved in an accident that resulted in the death of his passenger, Bourgeois. Blood samples were taken from Bolen as a result of a demand made by police officers investigating the accident. Bolen was charged with alcohol related driving offences. A trial was not held and the admissibility of the blood samples was not tested. Bourgeois' estate and his parents commenced an action under the Fatal Accidents Act and the Survival of Actions Act, claiming that Bolen was negligent in that he operated his vehicle while impaired. Although Bolen denied that he had been driving while impaired, he claimed volenti non fit injuria where Bourgeois knew that he had been drinking before accepting a ride with him. The plaintiffs applied to compel production of records relating to the analysis of the blood samples that were in the pos­session of Bolen's criminal counsel.

The Alberta Court of Queen's Bench held that Bolen's criminal counsel was to produce the documents to Bolen's civil counsel. The court released the criminal counsel from any implied undertaking respecting the contents of the Crown disclosure insofar as it related to blood samples and analysis of those samples and granted him leave to produce the records to Bolen's civil counsel. Bolen was to disclose the existence of any docu­ments concerning the analysis and identify whether he objected to production and the grounds for the objection. The parties were to attempt to agree as to whether an objec­tion would be advanced in a pre-trial motion as a trial of an issue, or at trial. If there was no agreement, the parties were to be gov­erned by the Rules of Court.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - The Alberta Court of Queen's Bench stated that "... the privacy interest which people have in information or documents obtained from them under statutory compulsion, whether in the form of a Criminal Code demand, pursuant to the Rules of Court relating to disclosure in civil proceedings, or otherwise, allows that person to assert a claim of public interest privilege or immunity." - See paragraph 59.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - Bolen was involved in an accident that resulted in the death of his passenger, Bourgeois - Blood samples were taken from Bolen and he was charged with alcohol related driving offences - Bour­geois' estate and his parents sued Bolen, alleging that he had negligently operated his vehicle while impaired - The plaintiffs sought production of records relating to the blood analysis that were in the possession of Bolen's criminal counsel - Bolen claimed public interest privilege or immun­ity and asserted that the four-part Wigmore test applied - The Alberta Court of Queen's Bench stated that the Wigmore test applied only to confidential communi­cations in the context of special relation­ships - The question here was whether a public interest immunity or privilege from disclosure or production arose, rather than a privilege borne of a special relationship which was to be sedulously protected - However, the notion of public interest privilege or immunity exception to the inclusionary rule conformed with the fourth Wigmore condition: that the benefit that inured from the privilege outweighed the interest in the correct disposal of the litigation - See paragraphs 60 to 68.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - The Alberta Court of Queen's Bench stated that "... in a civil lawsuit, where a party seeks production of records revealing blood alcohol readings derived from a Criminal Code demand, Charter considerations arise. The party whose records are sought may claim that the documentation is protected from dis­closure or production on the basis that the public interest in non-disclosure of the confidential information (test results of bodily samples) procured by Criminal Code compulsion, in the particular facts of the case, is greater than the public interest in making all relevant evidence available for the administration of justice. When the court makes a determination as to the disclosability of evidence obtained by the state through compulsion of statute, Char­ter values must inform that decision. " - See paragraph 78.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - The Alberta Court of Queen's Bench stated that Charter con­siderations arose where a party in a civil law suit sought production of records revealing blood alcohol readings derived from a Criminal Code demand - The Char­ter guarantees of protection against unreas­onable search and seizure and to the right to counsel, that could render a demand for blood samples unlawful, were analogous Charter values that had to be considered in assessing whether a form of public interest privilege was shown that warranted the exclusion of relevant evidence - The inquiry would be whether the societal benefit of sedulously protecting those Charter values outweighed the interest in the correct disposal of the litigation - The analytical framework would be a balancing of the public interest in non-disclosure against the desirability of full disclosure in the interests of justice, or a balancing of the competing interests on policy lines - See paragraphs 80 and 81.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - Bolen was involved in an accident that resulted in the death of his passenger, Bourgeois - Blood samples were taken from Bolen and he was charged with alcohol related driving offences - A trial was not held and the admissibility of the blood samples was not tested - Bourgeois' estate and his parents sued Bolen, alleging that he had negligently operated his vehicle while impaired - The plaintiffs sought production of records relating to the blood analysis that were in the possession of Bolen's criminal counsel - The Alberta Court of Queen's Bench held that a claim of public interest immunity arose as a result of Bolen's privacy interest in the records - The claim did not depend on a Charter breach, although consideration of any such breach might tip the balance when the court determined whether the records had to be disclosed - The appropri­ate procedure was for the Bolen's criminal counsel to produce the documents to Bolen's civil counsel and for Bolen to disclose the records in the affidavit of records and produce them to the plaintiffs unless he chose to assert a claim of public interest privilege - If Bolen supported such a claim by reference to a Charter breach, the onus would be on him to establish the breach - See paragraphs 69 to 84.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - Bolen was involved in an accident that resulted in the death of his passenger, Bourgeois - Blood samples were taken from Bolen and he was charged with alcohol related driving of­fences - Bourgeois' estate and his parents sued Bolen, alleging that he had negligent­ly operated his vehicle while impaired - The plaintiffs sought production of records relating to the blood analysis that were in the possession of Bolen's criminal counsel - The criminal counsel denied production based on an implied undertaking not to use the records in a collateral lawsuit - The Alberta Court of Queen's Bench agreed that there was an implied undertaking to the court respecting the Crown's disclosure to the criminal lawyer - However, given that the Crown did not assert a privacy interest on behalf of any other person, nor was there an argument presented or interest advocated by Bolen that would warrant non-disclosure at his behest, the court exercised its discretion to release the crimi­nal counsel from the undertaking - See paragraphs 31 to 48.

Practice - Topic 4596

Discovery - What documents must be produced - Particular matters - Documents in other related proceedings - Crown dis­closure in criminal trial - [See second, third, fourth and fifth Evidence - Topic 4107.1 and Practice - Topic 4157 ].

Cases Noticed:

Price v. Labossiere (1984), 64 A.R. 74 (Q.B.), refd to. [para. 26].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 27].

Omega Techno Ltd. v. East Central Gas Co-op Ltd. et al., [1979] A.J. No. 345 (C.A.), refd to. [para. 29].

Rutherford v. Swanson et al. (1993), 139 A.R. 314 (Q.B.), refd to. [para. 29].

Barry v. Maertens-Poole (1992), 4 Alta. L.R.(3d) 330 (Q.B.), refd to. [para. 29].

Wirth Ltd. v. Acadia Pipe & Supply Corp. et al. (1991), 113 A.R. 298 (Q.B.), refd to. [para. 32].

R. v. Little (R.J.) (2001), 285 A.R. 85 (Prov. Ct.), refd to. [para. 33].

D.P. v. Wagg (2002), 165 O.A.C. 209; 61 O.R.(3d) 746 (Div. Ct.), consd. [para. 33].

Hedley et al. v. Air Canada et al. (1994), 23 C.P.C.(3d) 352 (Ont. Gen. Div.), refd to. [para. 36].

Taylor et al. v. Director of the Serious Fraud Office et al., [1998] 4 All E.R. 801; 233 N.R. 172 (H.L.), refd to. [para. 37].

Goodman v. Rossi (1995), 83 O.A.C. 38; 125 D.L.R.(4th) 613 (C.A.), refd to. [para. 44].

Brooks et al. v. Stefura (1998), 222 A.R. 345 (Q.B.), revd. (2000), 266 A.R. 239; 228 W.A.C. 239 (C.A.), refd to. [para. 49].

Evans v. Kent General Insurance Corp. (1991), 100 N.S.R.(2d) 411; 272 A.P.R. 411; 78 D.L.R.(4th) 428 (C.A.), leave to appeal dismissed (1991), 137 N.R. 382; 108 N.S.R.(2d) 90; 294 A.P.R. 90 (S.C.C.), refd to. [para. 49].

Cook v. Washuta (1985), 11 O.A.C. 171; 22 D.L.R.(4th) 1 (C.A.), leave to appeal denied (1986), 68 N.R. 400; 18 O.A.C. 80 (S.C.C.), refd to. [para. 52].

Cook v. Ip - see Cook v. Washuta.

Niagara (Regional Municipality) v. 451624 Ontario Inc. et al., [1985] O.J. No. 511 (H.C.), refd to. [para. 54].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81, consd. [para. 66].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, consd. [para. 70].

R. v. Chan (A.H.) et al. (2002), 307 A.R. 232; 2002 ABQB 287, refd to. [para. 81].

D. v. National Society for the Prevention of Cruelty to Children, [1978] A.C. 171 (H.L.), refd to. [para. 81].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), pp. 750, 879 [para. 33]; 880 [paras. 33, 58]; 881 [para. 33].

Stein, P.J., and Vail, B.A., A Civil Defen­dant's Disclosure Obligation for Crown Disclosure Received in Related Criminal Proceedings (2003), generally [para. 43].

Wigmore on Evidence (3rd Ed. 1961), vol. 8, para. 2285 [para. 60].

Counsel:

Cameron J. Ashmore (Russell & Com­pany), for the plaintiffs/applicants;

Sandra Corbett (Parlee McLaws LLP), for the defendant/respondent.

Greckol, J., of the Alberta Court of Queen's Bench, Judicial Centre of Edmon­ton, heard this matter on October 28, 2003, and delivered the following reasons for judgment on January 23, 2004.