La procédure à suivre concernant la divulgation de la preuve d'une procédure criminelle dans une procédure civile

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

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The Divisional Court was correct in concluding that 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 all parties was obtained. The court's inherent power to control its process and to protect that process from being abused or obstructed provided the jurisdiction to create a screening process. The Superior Court has the power to control the discovery and production process provided by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to ensure that important state and other third party [page230] interests are protected, even if particular documents do not, strictly speaking, fall within a recognized category of privilege. It was open to the Divisional Court to place limits on the production of the materials in the Crown brief through the screening mechanism without resort to the implied undertaking rule, which did not apply in this case because that rule was concerned with documents produced through the compulsory civil discovery process and the materials in this case were obtained through the criminal disclosure process as mandated by the Supreme Court of Canada in R. v. Stinchcombe. It was not, strictly speaking, necessary in this case to decide whether there is an implied undertaking rule applicable to Crown disclosure. It was sufficient to say that the reasons for possibly recognizing an implied undertaking justified the adoption of the screening process where a Crown brief, for whatever reason, finds its way into the hands of a party in a civil case.

The Divisional Court, however, erred in holding that Dr. W should not be required to produce his statements to the police and in finding that the production of the statement would bring the administration of justice into disrepute. There is a broad spectrum of police conduct that can lead to a violation of an accused's s. 10(b) rights. The admission of this statement was a matter for the trial judge. A finding that the production of the statement would bring the administration of justice into disrepute could only be made by a court that had been apprised of all the circumstances under which the statement was made. The considerations that would lead to the exclusion of the statement in the criminal context do not necessarily lead to the exclusion of the statement in the civil context. The rule of automatic exclusion that applies in the criminal context is grounded in the fundamental principle that an accused is not required to assist the state in making out its case. No such principle applies in the civil context. In civil proceedings, a litigant is under a compulsion to submit to oral discovery and obliged to make disclosure of his or her documents in an affidavit of documents. Moreover, even if a court could determine at an early stage that the statement would not be admissible at trial, the statement still should have been ordered produced as part of the discovery process.