D.P. v. Wagg, (2002) 165 O.A.C. 209 (DC)

• Judge: Blair, R.S.J., Linhares de Sousa and Power, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: January 16, 2002
• Jurisdiction: Ontario
• Citations: (2002), 165 O.A.C. 209 (DC)

D.P. v. Wagg (2002), 165 O.A.C. 209 (DC)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. OC.019

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

(215/01)

Indexed As: D.P. v. Wagg

Court of Ontario

Superior Court of Justice

Divisional Court

Blair, R.S.J., Linhares de Sousa and Power, JJ.

October 4, 2002.

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 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.

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 - See paragraphs 62 to 69.

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 - However, the notion of the court reserving control over documentation contained in the brief was consistent with, and supported, the court's general jurisdiction to control its own process in order to protect the public interest and ensure the proper administration of justice - See paragraphs 45 to 50.

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 - See paragraphs 39 to 44.

Practice - Topic 4573

Discovery - What documents must be produced - Documents relating to matters in issue - A plaintiff sought production of a Crown disclosure brief obtained by the defendant as an accused in related criminal proceedings which were stayed - The same allegations formed the basis of the civil action as formed the basis of the criminal proceedings - The Ontario Divisional Court held that it was highly likely that the brief contained documentation that was highly relevant to the civil action - Therefore, the defendant was required to disclose the brief in his affidavit of documents and to state why he objected to producing it - However, production for inspection should not be compelled until the appropriate state agency had been given an opportunity to assess the public interest consequences involved and either a court order or the consent of the state and all parties was obtained - See paragraphs 9 to 38.

Practice - Topic 4596

Discovery - What documents must be produced - Particular matters - Documents in other related proceedings - [See Civil Rights - Topic 8320.2 and Practice - Topic 4573 ].

Cases Noticed:

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 8].

McEvenue v. Robin Hood Multifoods Inc. et al. (1997), 34 O.T.C. 329; 33 O.R.(3d) 315 (Gen. Div.), refd to. [para. 8].

Reichmann v. Toronto Life Publishing Co. (1988), 28 C.P.C.(2d) 11 (Ont. S.C.), refd to. [para. 12].

Cook v. Washuta (1985), 11 O.A.C. 171; 52 O.R.(2d) 289; 22 D.L.R.(4th) 1 (C.A.), refd to. [para. 12].

Cook v. Ip - see Cook v. Washuta.

Consolidated NBS Inc. v. Price Waterhouse et al. (1994), 69 O.A.C. 236; 111 D.L.R.(4th) 656 (Div. Ct.), refd to. [para. 13].

Lang v. Crowe et al. (2000), 131 O.A.C. 26 (Div. Ct.), refd to. [para. 13].

Fullowka v. Royal Oaks Mines Inc., [1998] N.W.T.J. No. 11 (S.C.), refd to. [para. 13].

Fullowka v. Royal Oaks Mines Inc., [1998] N.W.T.J. No. 45 (S.C.), refd to. [para. 13].

Popowich v. Saskatchewan et al. (1996), 144 Sask.R. 166; 124 W.A.C. 166 (C.A.), refd to. [para. 13].

Bryden v. Popowich - see Popowich v. Saskatchewan et al.

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. 16, footnote 2].

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. 35].

Hedley v. Air Canada (1994), 23 C.P.C.(3d) 352 (Ont. Gen. Div.), refd to. [para. 39].

R. v. Savion and Mizrahi (1980), 52 C.C.C.(2d) 276; 13 C.R.(3d) 259 (Ont. C.A.), refd to. [para. 48].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 49].

R. v. Duong, [1998] O.J. No. 3546, refd to. [para. 49].

State of Iowa, Ex rel. Shanahan (Gerald) v. Iowa District Court for Iowa County, 356 N.W. 2d 523 (Sup. Ct.), refd to. [para. 52].

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356; 45 O.R.(3d) 321 (C.A.), refd to. [para. 56].

Slavutch v. University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587, 55 D.L.R.(3d) 224, refd to. [para. 56].

Slavutych - see Slavutch.

Slavutych v. Baker - see Slavutch v. University of Alberta.

R. v. Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112; 8 C.R.(4th) 368; [1991] 6 W.W.R. 673; 7 C.R.R.(2d) 108; 67 C.C.C.(3d) 289, refd to. [para. 56].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201, refd to. [para. 56].

L.L.A. v. Beharriell, [1995] 4 S.C.R. 536; 190 N.R. 329; 88 O.A.C. 241; 103 C.C.C.(2d) 92; 130 D.L.R.(4th) 422, refd to. [para. 56].

D. v. National Society for the Prevention of Cruelty to Children, [1978] A.C. 171; [1977] 1 All E.R. 589 (H.L.), refd to. [para. 61].

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; 33 D.L.R.(4th) 174; 38 C.C.L.T. 184; 25 C.R.R. 321; [1987] 1 W.W.R. 577; 87 C.L.L.C. 14,002, refd to. [para. 65].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 25 C.C.L.T.(2d) 89, refd to. [para. 65].

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; 5 C.R.(5th) 1; 144 D.L.R.(4th) 193, refd to. [para. 67].

R. v. Wray, [1971] S.C.R. 272, refd to. [para. 70].

Kuruma v. Reginam, [1955] 1 All E.R. 236 (P.C.), refd to. [para. 70].

Ashburton (Lord) v. Pape, [1913] 2 Ch. 469; [1911-13] All E.R. Rep. 708 (C.A.), refd to. [para. 71].

Seddon v. Seddon, [1994] B.C.J. No. 1729 (S.C.), refd to. [para. 71].

Authors and Works Noticed:

Jacob, I.H., The Inherent Jurisdiction of the Court (1970), 23 Current Legal Problems 23, p. 25 [para. 49].

Martin Committee Report - see Ontario, Attorney General, Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of (Martin Committee Report).

Ontario, Attorney General, Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of (Martin Committee Report), generally [para. 25, footnote 3].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), c. 14, p. 713, para. 14.1 [para. 54]; c. 14, p. 715, para. 14.7 [para. 54]; c. 15, p. 855, para. 15.1 [para. 54]; c. 15, p. 855 to 856, para. 15.2 [para. 54]; pp. 404, 405 [para. 70].

Wigmore, Evidence in Trials at Common Law (McNaughton Revision), Vol. 8, para. 2285 [para. 57].

Counsel:

Paul Harte, for the respondent/plaintiff;

Jonathan Lisus and Sarit Batner, for the appellant/defendant.

This appeal was heard on January 16, 2002, before Blair, R.S.J., Linhares de Sousa, and Power, JJ., of the Ontario Divisional Court. Blair, R.S.J., delivered the following decision for the court on October 4, 2002.