D.P. v. Wagg, (2004) 187 O.A.C. 26 (CA)

• Court: Court of Appeal (Ontario)
• Case Date: February 20, 2004
• Jurisdiction: Ontario
• Citations: (2004), 187 O.A.C. 26 (CA);2004 CanLII 39048 (NS CA);2004 CanLII 39048 (ON CA);71 OR (3d) 229;239 DLR (4th) 501;184 CCC (3d) 321;[2004] CarswellOnt 2660;[2004] OJ No 2053 (QL);120 CRR (2d) 52;130 ACWS (3d) 1098;187 OAC 26;46 CPC (5th) 13

D.P. v. Wagg (2004), 187 O.A.C. 26 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. MY.056

D.P. (plaintiff/appellant) v. Herbert Ovas Wagg (defendant/respondent)

(C39701)

Indexed As: D.P. v. Wagg

Ontario Court of Appeal

Rosenberg and MacPherson, JJ.A. and Lane, J.(ad hoc)

May 18, 2004.

Summary:

The plaintiff sued the defendant doctor for sexual assault. The related criminal charges against the defendant were stayed. The plaintiff sought production of the Crown disclosure brief prepared during the course of the criminal investigation and provided to the defendant. A Master held that the contents of the brief were not relevant and therefore not producible. The plaintiff appealed.

The Ontario Superior Court, in a decision reported [2001] O.T.C. Uned. 162, allowed the appeal and ordered disclosure and production. The defendant appealed.

The Ontario Divisional Court, in a decision reported at 165 O.A.C. 209, held that the existence of the brief in the defendant's possession and control had to 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. The plaintiff appealed.

The Ontario Court of Appeal allowed the appeal in part.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 8320.2

Canadian Charter of Rights and Freedoms - General - Application - Rules of Court - A plaintiff sought production of, inter alia, a statement taken from the defendant by the police during their investigation leading up to related criminal proceedings - The statement was provided to him in the Crown disclosure brief - The statement was ruled inadmissible in the criminal proceedings because it was obtained in violation of the defendant's right to counsel (Charter, s. 10(b)) - The plaintiff's counsel believed that the defendant's statement could confirm the plaintiff's version of events - The Ontario Divisional Court held that the statement was protected from production - The common law was to be interpreted in accordance with Charter values - The plaintiff sought to rely on a rule of the state (Civil Procedure Rules) to coerce the production from the defendant of state conscripted, unconstitutionally obtained evidence to be used against the defendant - Therefore, Charter values were invoked - Requiring the defendant to produce his statement would bring the administration of justice into disrepute - The Ontario Court of Appeal held that the Divisional Court erred in holding that the defendant should not be required to produce the statement - Its production would not automatically bring the administration of justice into disrepute - The criminal rule of automatic exclusion of conscripted evidence could not be imported into civil cases - All the circumstances of the case had to be considered - Only the trial judge was in a position to determine whether production would bring the administration of justice into disrepute - See paragraphs 56 to 69.

Civil Rights - Topic 8320.2

Canadian Charter of Rights and Freedoms - General - Application - Rules of Court - A plaintiff sought production of, inter alia, a statement taken from the defendant by the police during their investigation leading up to related criminal proceedings - The statement was provided to him in the Crown disclosure brief - The statement was ruled inadmissible in the criminal proceedings because it was obtained in violation of the defendant's right to counsel (Charter, s. 10(b)) - The plaintiff's counsel believed that the defendant's statement could confirm the plaintiff's version of events - The Ontario Divisional Court held that the statement was protected from production - The common law was to be interpreted in accordance with Charter values - The plaintiff sought to rely on Civil Procedure Rules to coerce the production from the defendant of state conscripted, unconstitutionally obtained evidence to be used against the defendant - Therefore, Charter values were invoked - Requiring the defendant to produce his statement would bring the administration of justice into disrepute - The Ontario Court of Appeal held that the Divisional Court erred in holding that the defendant should not be required to produce the statement - If the defendant's statement was potentially admissible at trial, it should be subject to production - There was no policy basis for refusing production of this apparently relevant, and perhaps highly probative evidence - Alternatively, even if the statement would not be admissible in evidence under any circumstances, the statement would still be subject to production - It was apparently relevant and its mere production might assist the plaintiff in assembling her case - It was not privileged - There was no indication that it was provided to the police in circumstances of confidence - See paragraphs 70 to 72.

Civil Rights - Topic 8368.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Whether evidence excluded for all purposes - [See both Civil Rights - Topic 8320.2 ].

Courts - Topic 1054

Masters - Jurisdiction - Discovery - The Ontario Divisional Court held that a party in a civil proceeding who had possession or control of a Crown disclosure brief from a related criminal proceeding had to 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 had been notified and either (a) those authorities and the parties had consented to production, or (b) on notice to those authorities, the Court had determined whether any or all of the contents should be produced - On appeal, the Attorney General, an intervenor, argued that a party seeking to use the Crown brief outside of the criminal proceedings for which it was produced required a court order to do so and that only a judge of the Superior Court of Justice would have jurisdiction to make such an order - The Ontario Court of Appeal rejected the arguments - A Master would have jurisdiction to conduct the screening process mandated in this case and order production of parts of the Crown brief pursuant to rule 30.04(5) of the Rules of Court - If the relevant police service and the Attorney General consented to production, then there was no need for a court order - See paragraphs 78 to 81.

Courts - Topic 2004

Jurisdiction - Inherent jurisdiction - The Ontario Divisional Court held that a party who had possession or control of a Crown disclosure brief had to 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 had been notified and either (a) those authorities and the parties had consented to production, or (b) on notice to those authorities, the Court had determined whether any or all of the contents should be produced - There were no provisions in the Rules of Civil Procedure providing for such a screening mechanism - The court found the jurisdiction to create the screening process in the court's inherent power to control its process and to protect that process from being abused or obstructed - The Ontario Court of Appeal agreed with this finding and "largely" agreed with the screening mechanism proposed - The Superior Court had to have the power to control the discovery and production process provided for by the Rules to ensure that important state and other third party interests were protected, even if the particular documents did not, strictly speaking, fall within a recognized category of privilege - The court discussed the nature of the screening process - See paragraphs 2, 24 to 28 and 48 to 55.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - A plaintiff sought production of, inter alia, a statement taken from the defendant by the police during their investigation leading up to related criminal proceedings - The statement was provided to him in the Crown disclosure brief - The statement was ruled inadmissible in the criminal proceedings because it was obtained in violation of the defendant's right to counsel (Charter, s. 10(b)) - The plaintiff's counsel believed that the defendant's statement could confirm the plaintiff's version of events and sought production of the statement - The Ontario Divisional Court recognized that issue estoppel or res judicata did not strictly apply because the plaintiff was not a full party to the criminal proceeding - The Divisional Court, however, applied an abuse of process type of reasoning to hold that the admission of the statement should not be relitigated in the civil context - The Ontario Court of Appeal held that relitigation of the issue would be an abuse of process in the circumstances of this case - Fairness dictated that the original result not be binding in the new context - While abuse of process principles might dictate that the judge presiding in the civil proceedings should accept the finding of a Charter violation, it would work an injustice to require the plaintiff to abide by the admissibility decision made by the criminal court judge - See paragraphs 73 to 77.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Courts - Topic 2015 ].

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - A plaintiff sought production of a Crown disclosure brief obtained by the defendant as an accused in related criminal proceedings which were stayed - The Ontario Divisional Court held that the implied or deemed undertaking rule was not adequate by itself to protect the public interest which might exist in prohibiting wider dissemination of Crown disclosure documents in particular circumstances - A screening mechanism was required to ensure that the public interest factor was adequately explored - The Ontario Court of Appeal held that it was open to the Divisional Court to place limits on the production of such materials through the screening process without resort to any implied undertaking rule - However, the court reviewed some of the rationales for such a rule, since it could inform how the screening process should operate - The court stated that the compelling reasons for possibly recognizing an implied undertaking rule justified the adoption of the screening process where the Crown brief, for whatever reason, found its way into the hands of a party in a civil case - See paragraphs 29 to 47.

Practice - Topic 4596

Discovery - What documents must be produced - Particular matters - Documents in other related proceedings - [See both Civil Rights - Topic 8320.2 , Courts - Topic 1054 and Courts - Topic 2004 ].

Cases Noticed:

Lang v. Crowe et al. (2000), 131 O.A.C. 26 (Div. Ct.), refd to. [paras. 11, 51].

Ontario (Attorney General) v. Ontario (Information & Privacy Commissioner) - see Ontario (Attorney General) v. Big Canoe et al.

Ontario (Attorney General) v. Big Canoe et al. (2002), 167 O.A.C. 125; 62 O.R.(3d) 167 (C.A.), leave to appeal denied [2003] S.C.C.A. No. 31, refd to. [para. 26, footnote 3].

N.G. v. Upper Canada College, [2004] O.J. No. 1202 (C.A.), refd to. [para. 26].

R. v. Savion and Mizrahi (1980), 52 C.C.C.(2d) 276; 13 C.R.(3d) 259 (Ont. C.A.), refd to. [para. 27].

Goodman v. Rossi (1995), 83 O.A.C. 38; 24 O.R.(3d) 359 (C.A.), refd to. [para. 30].

Lindsey v. Le Sueur (1913), 29 O.L.R. 648 (C.A.), refd to. [para. 30].

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. 33].

Hedley v. Air Canada (1994), 23 C.P.C.(3d) 352 (Ont. Gen. Div.), refd to. [para. 37].

Fullowka v. Royal Oak Mines Inc., [1998] N.W.T.R. 42 (S.C.), refd to. [para. 38].

Fullowka v. Royal Oak Mines Inc., [1998] N.W.T.J. No. 45 (S.C.), refd to. [para. 39].

Consolidated NBS Inc. v. Price Waterhouse et al. (1994), 69 O.A.C. 236; 111 D.L.R.(4th) 656 (Gen. Div.), refd to. [para. 42].

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. 43].

R. v. Masilamany (P.K.), [2004] O.T.C. 190 (Sup. Ct.), refd to. [para. 47, footnote 5].

R. v. Little (R.J.) (2001), 285 A.R. 85 (Prov. Ct.), refd to. [para. 47, footnote 5].

Reichmann v. Toronto Life Publishing Co. (1988), 28 C.P.C.(2d) 11 (Ont. S.C.), leave to appeal dismissed (1988), 29 C.P.C.(2d) 66 (Ont. H.C.), refd to. [para. 55].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 57].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 57].

R. v. Harper, [1994] 3 S.C.R. 343; 172 N.R. 91; 97 Man.R.(2d) 1; 79 W.A.C. 1, refd to. [para. 57].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321, refd to. [para. 63].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 63].

R. v. Cook (D.R.), [1998] 2 S.C.R. 597; 230 N.R. 83; 112 B.C.A.C. 1; 182 W.A.C. 1, refd to. [para. 70].

R. v. Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112, refd to. [para. 72].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 74].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 76].

R. v. Smith (R.) (1994), 146 Sask.R. 202 (Q.B.), refd to. [para. 79].

Authors and Works Noticed:

Martin Report - see Ontario, Report of the Attorney General's Advisory Committe on Charges, Screening, Disclosure and Resolution Discussions.

Ontario, Report of the Attorney General's Advisory Committee on Charges, Screening, Disclosure and Resolution Discussions (Martin Report) (1993), generally [para. 14, footnote 1].

Counsel:

Paul E. Harte, for the appellant;

Jonathan C. Lisus and Sarit E. Batner, for the respondent;

Luba Kowal, Janet E. Minor and Arif Virani, for the intervenor, Attorney General of Ontario;

Kevin A. McGivney and Cheryl M. Woodin, for the intervenors the Chief of the Toronto Police Service and the Chief of the Halton Regional Police Service.

This appeal was heard on February 20, 2004, before Rosenberg and MacPherson, JJ.A., and Lane J.(ad hoc), of the Ontario Court of Appeal. Rosenberg, J.A., delivered the following judgment on May 18, 2004.