Roger Chown
Partner
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rchown@chcbarristers.com
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Debbie Crews
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Traci Adams
(705) 722-4400 ext. 237
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An unnecessary bureaucracy has spawned from the 2004 decision of the Court of Appeal in D.P. v. Wagg (2004), 71 OR (3d) 229, 239 DLR (4th) 501.
D.P. v. Wagg was a civil sexual assault case. There had been a criminal sexual assault charge arising from the same incident which gave rise to the lawsuit, and the plaintiff in the civil suit wanted production of the Crown brief. The defendant in fact had possession of the Crown brief, having received it in the criminal proceedings, and the plaintiff did not. The Divisional Court fashioned a procedure and screening process that should be followed in such circumstances, which the Court of Appeal adopted and summarized as follows:
- 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”.
Justice Rosenberg, writing for the Court of Appeal, stated:
Like the Divisional Court, I can see no practical way of protecting the [interests of non-parties] without giving the bodies responsible for creating the disclosure, the Crown and the police, notice that production is sought. Further, where the Crown or police resist production the court must be the final arbiter.
I do not think that the various interests will be protected because of the implied undertaking rule in Rule 30.1. The fact that civil counsel obtaining production is bound not to use the information for a collateral purpose may be little comfort for persons who once again find their privacy invaded, this time in civil rather than criminal proceedings.
Justice Rosenberg then optimistically stated:
It is to be hoped that most of these issues will be resolved on consent without court intervention. To that end, I would offer these comments. I would expect that the parties and the state agents could usually agree to disclosure of the materials in many circumstances.
Justice Rosenberg went on to state reasons why production of the Crown brief to parties in a civil case will generally be required. He noted:
- “Where the party in possession of the Crown brief has access to the materials, fairness will generally dictate that they be produced to the other side.”
- “… the parties and the state agents should agree to produce any information in the Crown brief that was used in court in the course of the criminal prosecution, subject to some interest of superordinate importance, such as private records of sexual assault complainants or confidential medical records.”
- “Society has an interest in seeing that justice is done in civil cases as well as criminal cases, and generally speaking that will occur when the parties have the opportunity to put all relevant evidence before the court. The Crown disclosure may be helpful to the parties in ensuring that they secure all relevant evidence.”
- “The consistent tendency in this province has been to broaden and not circumscribe the right of discovery.”
The vast majority of Wagg motions arise from MVA cases
I have no issue with the screening process set out by the Court of Appeal when applied in sexual assault litigation, but it is absolutely unnecessary and is a significant waste of resources in motor vehicle accident cases, which I understand make up the vast majority of Wagg motions (on the order of 99% according to one conversation I had with a Crown Law Office representative).
The Crown will inevitably produce almost everything
With very few exceptions, when a party to a motor vehicle lawsuit brings a Wagg motion, the police records and Crown brief are produced to the parties. Very little is withheld. The parties (and the court) simply must know the identity of and the information of witnesses in order to settle civil disputes or to conduct orderly trials to resolve them. The privacy interests of third parties (typically witnesses to an accident) will be subordinate to the needs of the court and the truth-seeking goals of the justice system.
30.10 motions have become inevitably necessary
Rick Shaheen has blogged about difficulties being experienced in obtaining unredacted motor vehicle accident reports from the OPP. This problem is now apparently resolved. Challenges remain, however, in obtaining other police records and information without a 30.10 motion.
We have experienced varying responses to requests for police information when made directly to the police. We have been able to secure (for a fee) unredacted witness statements from some OPP detachments. In addition, for much higher fees, we have been able to secure police photographs and Technical Traffic Collision Investigation reports from the OPP and other forces.[1] On occasion, we have interviewed officers to obtain information. To arrange this, we have had to pay a “paid duty” charge (minimum four hours) to cover the officer’s time to attend the interview. In this process we may or may not receive a copy of the police officers notes. In Durham Region, we experienced a procedure whereby we could interview officers, but only if the questions were first submitted in writing to in-house counsel for the police, and restrictions were put in place so that no third party information would be released.
In our experience, a request to any police department for copies of police notes will typically result in a response that a Freedom of Information request must be made. The cost of making such a request is minimal because it simply involves writing a letter and sending a very small fee. The notes received will be redacted for personal information including all names. Often these redacted notes are not useful or not adequate.[2]
Also in our experience, where we represent a defendant in a civil matter who was also a defendant in a criminal matter arising from the same accident, our client’s criminal lawyer will sometimes have concerns about releasing the Crown brief to us. Indeed, it may be wrong for criminal counsel to hand the Crown brief over to civil defence counsel representing the same client, given that the Martin Committee was “of the opinion that defence counsel should maintain custody or control over disclosure materials.” That is, the Martin Committee was of the opinion that criminal defence counsel should not give copies of the Crown brief to their own clients, let alone to others. In the result, the situation in Wagg, in which civil defence counsel actually had a copy of the Crown brief, is rare in our experience.
To obtain comprehensive and unredacted police and Crown records, a 30.10 motion is now inevitably required. The motion will invariably be supported by all of the parties in the civil action. The motion will result in the requested records being collected by police agencies and Crown’s offices and screened by a lawyer in the Crown Law Office – Civil, under the process set out by the Court of Appeal in Wagg. Some minor redactions will be made and perhaps a few documents withheld. The cost and time involved will be considerable.
Wagg has been costly
As noted above, Justice Rosenberg “hoped that most of these issues will be resolved on consent without court intervention,” and he expected that “the parties and the state agents could usually agree to disclosure of the materials in many circumstances.” It is true that most 30.10 motions are resolved on consent, but regrettably the motion must be brought and a court order obtained to get comprehensive and unredacted records.
The Wagg motion process will be familiar to most lawyers who do MVA work:
- You prepare your motion materials listing all of the types of records you can think of that might exist in connection with the accident;
- You serve your motion record on the relevant police agency and Crown’s office;
- Your motion record will end up with the Crown Law Office – Civil. As your motion date approaches, a law clerk from the Ministry will ask for a three month adjournment since they have a three month backlog.
- As the adjourned return date of the motion approaches, you get a letter listing the types of documents they are prepared to disclose and the types of documents they are and are not prepared to disclose, describing the redactions they intend to make, and enclosing a draft order the Crown is prepared to consent to.
- The types of things the Crown will want to redact or will object to producing will include:
- police identifier codes;
- witnesses’ dates of birth;
- cell phone numbers;
- third party names;
- VIN numbers;
- Dispatch calls;
- Photos depicting deceased persons;
- Search warrant information.
- You either accept the Crown’s draft order or you negotiate a resolution. The Crown will generally concede on production of information if you have a reasonable argument that the information may have some relevance to the civil proceeding.
The Wagg process will minimally take four months.[3]
The only court attendances required will be to file the motion record, to obtain the consent order, and possibly an attendance to pick up the court order once it has been issued. In some jurisdictions, no in-court appearance will be necessary and court runners can be used to deliver any documents.
Done efficiently, the process will require several hours of clerk time and several hours of lawyer time to process, and disbursements will be incurred for filing and service of the motion record. This assumes no wrinkles are encountered. This does not include time spent by the Crown in screening these requests, which must be considerable, given the three month backlog.
Many times in these matters, one or more insurers or lawyers will have made Freedom of Information requests to obtain police records before bringing a Wagg motion, and several sets of redacted police notes will have been exchanged among counsel to the civil proceedings prior to the Wagg motion. Unredacted notes containing witness names will be needed so the Wagg motion will be necessary. Thus the police may have produced different versions of redacted notes several times before being ordered to produce unredacted notes, resulting in significant duplication of effort.
Specific documents and information
Witness names and contact information are often the reason why you bring a Wagg motion in the first place, and in our experience, the Crown will always agree to production of names and some identifying or contact information once the motion is brought, but only after an order is obtained. There is a reluctance to provide cell phone numbers, but these may be the best way to reach a witness. In one recent case, the order we negotiated stated that the cell phone numbers would be redacted from records, “with the exception of individuals that only provided a cellphone number as their sole phone contact, in which case the cellphone numbers will remain unredacted.”
The Crown considers dispatch calls irrelevant and confidential. However, dispatch calls may contain important evidence. For example, in a slip and fall case, we found ambulance dispatch calls highly relevant with respect to where the slip and fall had occurred. I surmise that as a policy the Crown may not want to produce dispatch calls to avoid production of unguarded and/or irrelevant private chatter among by emergency personnel, and because screening audio recordings is time consuming.
The Crown wants to redact police identifier codes, which I understand are the “10 codes” and other codes that form part of police radio lingo. I presume the Crown is trying to protect the integrity of these supposedly secret codes. When used in an officer’s notebook, it is easier to understand the notes if these are not redacted. Also, you can go on the Internet and find explanations for version of these codes, so I do not think they are very secret. As such, I am not convinced the Crown’s position on these is well founded, but we’ve nevertheless always conceded on redaction of this information.
In my experience, the Crown has generally seemed unenthusiastic about arguing these motions. I have had the Crown advise me that it does not consent to the request, but it will not attend the motion. Instead, they have asked that I put a letter before the Court setting out the Crown’s position. I understand that others have had to battle out these motions, although there are few reported decisions in which the Crown has opposed a Wagg motion in a motor vehicle case.[4]
At considerable cost, Wagg screening accomplishes only miniscule victories for the privacy interests of non-parties
In MVA cases, the bureaucracy the Court of Appeal has mandated in Wagg is unnecessary and expensive. The cost of providing perfect privacy protection is too high. I appreciate that screening is necessary in a sexual assault charge, but we’ve gone way overboard with screening all police records in motor vehicle cases (which give rise to the vast majority of Wagg motions). The production of police records now routinely requires a time consuming motion and screening process which accomplishes only miniscule victories for the protection of the privacy interests of non-parties.
Contrary to the view of the Court of Appeal in Wagg, in my view the protection of the implied undertaking rule is adequate protection of non-party privacy interests in MVA cases. Instead of relying on the implied undertaking rule, we have an expensive process to deal with trivial issues – “a solution looking for a problem.”
In my view, once police charges have been dealt with, police officers and police records departments should be able to and should be required to release, in an unredacted form and for a reasonable fee, all records relating to motor vehicle accident investigations. The dissemination of these records should be subject to the implied undertaking rule whether or not motor vehicle litigation has been commenced, and production should be limited to lawyers who will certify they represent a party who is involved in or anticipates litigation in connection with the accident. Screening of police records by Crown Law Office – Civil is unnecessary, and motions to obtain police records should be unnecessary. Reform is needed.
[1] These will never be provided while charges are outstanding. In a Wagg motion, we have successfully negotiated that no fee for the TTCI report should be payable.
[3] Where the person charged by the police was a youth, a Youth Court order must also be obtained, adding to the time and cost involved.
[4] One example is Ker v. Lim 2010 ONSC 1517, in which the Crown successfully opposed production of police records which the applicant wanted, pre-litigation, to try to find out where the intended defendant had been drinking prior to the motor vehicle accident giving rise to the intended claim. It is not clear from the decision why the Crown resisted production of the records.
Originally published at http://community.advocates.ca/group.htm?mode=gvb&igid=68&op=ViewArticle&articleId=262&blogId=13
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