Criminal Court Disclosure SCSM

D. P. v. Wagg, 2004 CanLII 39048 (ON CA)

[14] The Divisional Court disagreed with Juriansz J. that the Crown brief must be produced to the plaintiff merely because the contents are relevant. Rather, production should not be compelled until the appropriate state agencies have "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 is obtained" (para. 19). The court pointed out that there could be a myriad of documents and other material in the Crown brief that might be subject to privacy and other interests that the parties to the civil action will not necessarily have an interest in protecting. The court noted the concerns expressed in the Report of the Attorney General's Advisory Committee on Charges, Screening, Disclosure, and Resolution Discussions (the "Martin Report") [see Note 1 at end of the document] about "the dangers of unwarranted dissemination of Crown disclosure documents" (para. 25). Thus, there needed to be some screening mechanism by the appropriate state agency or the court before the contents of the Crown brief were produced.

[17] The Divisional Court then explained how the screening mechanism would operate. Since I agree entirely with this part of [page236] the court's reasons, I intend to summarize this part of the reasons at some length:

-- the party in possession or control of the Crown brief must disclose its existence in the party's 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 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 Superior Court of Justice 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"

(para. 51).

[30] In Goodman v. Rossi (1995), 1995 CanLII 1888 (ON CA), 24 O.R. (3d) 359, [1995] O.J. No. 1906 (C.A.), this court held that there is a common law implied undertaking not to use materials disclosed in civil proceedings in any other proceedings. Morden A.C.J.O., at p. 367 O.R., explained that the principal rationale for the rule is "recognition of the general right of privacy which a person has with respect to his or her documents". Since the civil discovery process is "an intrusion on this right under the compulsory processes of the court . . . this intrusion should not be allowed for any purpose other than that of securing justice in the proceeding in which the discovery takes place". However, he also recognized that there is a broader principle, which is more directly applicable to the facts of this case. He referred, at pp. 367-68 O.R. to the reasons in Lindsey v. Le Sueur, [1913] O.J. No. 168, 29 O.L.R. 648 (C.A.), at p. 655 O.L.R., that because a party had been "given access to and the use of the documents for a particular purpose . . . there is necessarily an implication that they are not to be used for any other purpose". [page241]