Criminal Section Minutes 2007

Report of the Working Group on Collateral Use of Crown Brief Disclosure (Joint Session)

The Report was presented by Denise Dwyer, Crown Law Office – Civil, Ministry of the Attorney General of Ontario and by David Marriott, Appellate Counsel, Alberta Justice. The Working Group, established at the August 2006 meeting of the Conference, was tasked with considering the issues raised in the paper entitled Collateral Use of Crown Brief Disclosure (prepared by Crystal O’Donnell and David Marriott, and presented to the Conference in 2006) and with making recommendations to the Conference in 2007 “respecting the desirability and feasibility of legislative or non-legislative initiatives to promote uniformity in the use of Crown Brief material in collateral proceedings”.

The Working Group examined the impact of the Ontario Court of Appeal decision in D.P. v. Wagg respecting production of the Crown brief in civil proceedings, and similar issues being argued in the context of child protection litigation and administrative law proceedings.

For the purpose of informing the Working Group’s approach to drafting recommendations that would achieve uniformity in the use of production of Crown Brief information for collateral purposes, the following guiding principles were established by the Working Group:

  1. Generally, it is in the public interest to control disclosure and use of Crown Brief materials for collateral purposes in order to maintain the integrity of the criminal justice system, and to protect third party privacy and confidentiality concerns.
  2. There is a public interest in protecting the administration of civil justice by ensuring that parties to a civil proceeding have full access to all relevant information.
  3. The 'Wagg screening mechanism' applies in quasi-criminal and civil proceedings, including child protection proceedings, labour arbitrations and administrative law proceedings.
  4. The public interest balancing test, which is part of the Wagg process, must be applied in a fair and consistent manner. This requires a decision-maker with the required legal expertise to recognize administration of justice concerns that are critical to the protection of the integrity of the criminal and civil law systems.
  5. Freedom of information legislation should not be used to access Crown Brief materials in circumstances where the public interest in confidentiality should prevail. Freedom of information legislation ought not to facilitate access to Crown Brief materials where consideration of the public interest concerns identified in Wagg would lead to the opposite conclusion.

The Working Group examined a number of issues including the 'implied undertaking rule' and concluded that the Canadian jurisprudence on the relationship between the implied undertaking rule and materials disclosed or produced in a criminal trial should be clarified. The Working Group identified issues that need to be addressed and proposed that guidelines be developed for the purpose of determining when the public interest requires ordering production, notwithstanding the existence of the undertaking.

The following recommendations were made by the Working Group:

Recommendation 1

The Criminal Code or the Rules of Criminal Practice should be amended to create an undertaking of confidentiality that applies to all persons, including third parties, who receive Crown disclosure.

Recommendation 2

The provinces and territories should uniformly legislate amendments to their rules of civil procedure to codify the Wagg screen process in those rules.

Recommendation 3

Where feasible, Protocols and Memoranda of Understanding between key stakeholders such as the police and child protection agencies, and disciplinary tribunals, should be established to regulate the sharing of vital information in urgent cases and in particular types of proceedings.

Recommendation 4

The provinces and territories should uniformly codify the Wagg screening process in the enabling legislation of their child protection agencies and their legislation governing the procedures and processes that apply to administrative tribunals.

Recommendation 5

Freedom of information legislation throughout Canada should be uniform in its treatment of access requests for Crown Brief materials.

Discussion:

During the discussion, a number of issues were raised by delegates. It was noted that the paper was well researched, well written and thought provoking. One question was posed regarding the need to address whether the 1999 Supreme Court of Canada case of Campbell and Shirose would apply since Crown brief materials often contain the subjective assessment of the evidence retrieved by police forces. It was noted in response that there is usually not much privileged materials dealing with the Crown’s assessment of the case.

The following views expressed during the Criminal Section debates were summarized and reported to joint session delegates as follows:

  • Privacy interests of an accused person ought to be specifically recognized;
  • With respect to the recommendation to codify implied undertakings of confidentiality, interests of defence counsel and unrepresented accused ought to be carefully considered, including whether undertakings that bind defence counsel would prevent them from sharing information with journalists;
  • A court power to set aside or vary an implied undertaking should perhaps not be restricted to judges of the superior court;
  • Third parties who come into possession of disclosure materials might not know that they are subject to the implied undertaking;
  • There may be a difficulty for accused persons to fully appreciate the reasons why they cannot use disclosure materials in collateral proceedings in which they may be engaged, such as family proceedings;
  • Unrepresented accused may not fully appreciate the obligation of an undertaking of confidentiality; and
  • The starting point of the paper should be that a presumption of non-confidentiality applies to Crown brief materials and documents should generally be made available to the public before a screening process applies.

During the discussion, it was suggested that it may be more appropriate to remove the presumption of confidentiality to expedite proceedings and avoid the need to make submissions that there are special circumstances in child protection cases and other administrative proceedings where a decision must be rendered promptly. It was noted in response that in the context of Wagg-type motions, it is recognized that child protection proceedings and similar matters are of such importance that they would proceed expeditiously but that in cases where it is less evident that the situation constitutes a special circumstance, a determination would need to be made.

In response to the question of the proper court jurisdiction to hear Wagg-type applications, it was submitted that the recommendation flowed naturally from the explanation provided by the Court in Wagg in which it was stated that the origin of the power of the Superior Court to hear such applications stemmed from the Superior Court’s inherent power. In addition, it was noted that the main concern of the Working Group is that the question be handled by a court of proper expertise so the Court may fully appreciate the impact of decisions on the fairness of criminal proceedings. However, it was agreed that the proper court jurisdiction could be changed if delegates felt it was appropriate.

One delegate observed that the creation of a right of appeal similar to the one pursuant to section 37 of the Canada Evidence Act where the court makes an interlocutory order not to restrict access to Crown brief materials should be considered.

Also raised was the situation where a special procedure is created in the criminal context to obtain sensitive information (e.g. s. 278.2 of the Criminal Code – production of records to accused) but where the accused commences an action against the victim before the criminal proceedings have been instituted and obtains the information that would not otherwise be available to the accused in the criminal context. It was noted in response that most situations are usually the reverse: the plaintiff, who is the alleged victim in the criminal trial, does not have access to crown brief materials for the purpose of the civil action against the defendant who is the accused in the criminal trial; but the accused receives Crown brief materials through disclosure.

In reference to Recommendation 2.c, it was suggested that accused persons who require Crown brief materials to defend themselves in a civil proceeding should have access to these materials in the same manner as the police and Crown without being required to follow the screening mechanism described in the Wagg decision. In response, it was noted that the Court in Wagg determined that the screening mechanism does not apply to the police and the Crown brief materials could be used by police officers to defend themselves in a collateral proceeding. In addition, it was submitted that the Crown brief is created in anticipation of a criminal prosecution and that it would give rise to an odd situation if the creator of the record could not access it to defend himself or herself in a litigation that arises from the creation of the record. It was further submitted that the screening mechanism is not a complete barrier to accessing Crown brief materials.

The vote on the following resolution was deferred to the closing plenary and was adopted.

Resolved:

1. That recommendation number one of the Report, as amended*, be adopted.

2. That the Joint Civil/Criminal Working Group continue and that it consider the issues raised in the Report and the directions of the Conference and:

(a) prepare model uniform rules of civil procedure to codify the Wagg screening process in those rules;

(b) prepare uniform provisions to codify the Wagg screening process to govern production of Crown Brief materials in the child protection and administrative tribunal regimes; and

(c) prepare uniform access to information provisions governing access requests for Crown Brief materials for consideration at the 2008 meeting.

(* Recommendation number one, at paragraph 146 of the Paper, is amended by replacing the terms “superior court” with the terms “court of competent jurisdiction”.)

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018