Accounting for Law

Lerners LLP: Elizabeth Grace

When a criminal defence must yield to civil protections: the use of compelled documentary productions from a civil lawsuit

By Elizabeth Grace

Because sexual assault is a recognized wrong in many areas of our substantive law, it is quite common for a civil lawsuit to run in parallel with a criminal proceeding arising from the same alleged wrongdoing. When civil, administrative and/or criminal cases take place at the same time, or one after the other, there can be significant ramifications for the different cases. This is illustrated by the recent decision of the Ontario Superior Court in SC v. NS, 2017 ONSC 353, from which leave to appeal was granted on April 26, 2017. Because an ongoing criminal trial has been interrupted to allow the civil courts to rule on the propriety of civil counsel’s conduct, one can expect the appeal to Ontario’s Divisional Court to be expedited.

In SC v. NS, the plaintiff in a physical and sexual assault lawsuit produced, in compliance with her documentary discovery obligations under the Rules of Civil Procedure, highly private medical, counselling and academic records to the defendant, her former boyfriend. This plaintiff was also the complainant in a parallel criminal case against her former boyfriend. Criminal charges were laid first; the civil action was started later; and the criminal and civil proceedings ended up running in parallel.

Unbeknownst to the plaintiff and her lawyers, the defendant/accused through his civil lawyers shared the plaintiff’s documents with his criminal defence lawyer. This lawyer reviewed the records with a view to using them in his client’s favour at the criminal trial. At trial, the criminal defence lawyer relied on the documents’ contents to cross-examine the plaintiff/complainant. There was an objection to this and the criminal trial was adjourned. The defendant/accused’s civil defence lawyer then brought a motion seeking an after-the-fact declaration that sharing the plaintiff’s civil productions to aid the criminal defence was proper. The court hearing the motion disagreed, and in a carefully reasoned decision, explained the process that needs to be followed where there are overlapping civil and criminal cases, and a party wishes to use documentary productions that originated from the civil case in the criminal case.

Although the decision centers around the interpretation of the deemed undertaking rule of confidentiality found at Rule 30.1 of the Ontario Rules of Civil Procedure, it likely has implications outside of Ontario given that this rule represents a codification of the common law’s implied undertaking rule regarding the confidentiality of compelled oral and documentary discovery evidence, and that different jurisdictions have adopted similar rules to Ontario’s Rule 30.1.

Acknowledging the issues were novel, the motions judge in SC v. NS concluded that the defendant/accused had breached the deemed undertaking of confidentiality when he used for his criminal defence the plaintiff’s documentary productions from the civil case without first seeking directions from the court as to whether and how he could do so. Although there may be circumstances where such directions can be sought on an ex parte basis (i.e., without notice to the opposing party with the privacy interest in the records), this was not such a case. The plaintiff/complainant should have received notice of the defendant/accused’s intentions with respect to using her highly private and personal records for his criminal defence.

While this decision has implications for the way criminal lawyers, both Crown attorneys and defence counsel, run their cases, it most directly affects how civil litigators practice. The judge who granted leave to appeal acknowledged the decision’s “importance to the profession, as well as to the administration of justice generally”, and described the core issue raised by the decision to be whether “pre-approval to use discovery evidence under one of the exceptions contained in [Rule 30.1] is or is not required”: S.C. v. N.S., 2017 ONSC 2601 at para. 8.

The background to this case is important because I dare say it is one that occurs not infrequently, and thus, one that many practitioners should take precautions to navigate. In SC v. NS, the ex-boyfriend’s civil and criminal defence lawyers formed the belief that the plaintiff’s productions in the civil case contained information that was inconsistent with evidence she had given in the criminal proceeding. Assuming the documentary productions could be used to impeach the plaintiff/complainant in the course of her testimony at the criminal trial (impeachment is a recognized exception to the deemed undertaking rule, in that Rule 30.1 does not prohibit discovery evidence being used for this purpose), the civil defence lawyer emailed the plaintiff’s productions to his criminal counterpart.

At the criminal trial, the accused’s lawyer in turn relied on information in the plaintiff’s medical records to cross-examine the plaintiff/complainant. When it became clear that the plaintiff/complainant’s records from the civil case had been shared with criminal defence counsel, there was an objection and the criminal trial was adjourned. Civil defence counsel then brought a motion to the civil court to, in essence, have their conduct in sharing the plaintiff’s productions with criminal defence counsel vindicated by way of a declaration that the deemed undertaking rule had not been breached, or alternatively, did not apply at all in the circumstances. The motion failed.

Rule 30.1 of the Ontario Rules of Civil Procedure operates to impose an undertaking on all parties to civil litigation. It is an undertaking to the court. Its breach is a serious matter, giving rise to sanctions that include contempt of court. The undertaking’s purpose is to protect a civil litigant’s privacy interests and encourage parties in civil lawsuits to be frank and forthcoming in the civil discovery process. This protection is the quid pro quo for a civil litigant being compelled to produce relevant documents and to submit to questioning under oath as part of the civil discovery process.

The motions judge in SC v. NS concluded that the act of one lawyer for a client sharing the opposing party’s compelled discovery evidence – in this case, documents – with another lawyer representing the same client in another related proceeding constitutes prohibited “use” of the evidence. Were it otherwise, discovery productions could be shared widely and routinely with persons not involved in the civil case, and with impunity, thereby undermining the privacy of such documents and the purpose of the deemed undertaking rule which is to prevent the collateral use of confidential evidence and information.

Because of the competing rights and interests at play when there are documents from a civil proceeding that may be used to impeach a party in another proceeding, the motions judge in SC v. NS came down heavily in favour of the need for an anticipatory motion for directions to be brought before the party seeking to use the documents actually uses them. In this way, the court can give directions and fashion a fair process that balances the countervailing rights and interests. If both civil and criminal proceedings are before the same court, then a judge in either proceeding can hear the motion for directions. If not, as was the case in SC v. NS where the civil lawsuit was before the Ontario Superior Court of Justice and the criminal proceeding was before the Ontario Court of Justice, then the motion for directions should be brought before the Superior Court of Justice.

Importantly, the court in SC v. NS was not persuaded that a plaintiff’s privacy interest in her medical records should give way to the “element of surprise” that criminal defence counsel argued was so important to the defence of accused clients. Indeed, the Criminal Code itself includes a comprehensive scheme for the defence to follow when, within the criminal context, it seeks access to private records of a complainant or a witness in a sexual assault case, and this includes notice to the person with the privacy interest in these records (see ss. 278.1 to 278.9 of the Criminal Code).

The decision in SC v. NS serves as an important warning to lawyers working on both sides of sexual assault cases, as these cases frequently have both civil and criminal dimensions to them. We have long appreciated that the Crown disclosure documents from a criminal proceeding cannot simply be shared with counsel in a subsequent civil case that is based on the same events and alleged wrongdoing. The screening process approved by the Ontario Court of Appeal in D. (P.) v. Wagg (2004), 71 O.R. (3d) 229 must be followed. Indeed, a whole team at the Ministry of the Attorney General of Ontario is in place to administer this process.

Now, there are also rules and a process that must be followed when documents are to move in the opposite direction – i.e., from a civil to a criminal proceeding. The criminal defence’s desire to seek out and take advantage of inconsistencies or embarrassing information that may be contained in a plaintiff’s medical or other private records that have had to be produced in a civil proceeding must yield to the civil justice system’s rules for protecting the confidentiality that attaches to such records.

While we must wait to see what happens with the appeal, and whether the pre-approval procedure adopted by the motions judge is confirmed or modified, criminal and civil counsel need to be cautious how they treat productions when there is a multiplicity of legal proceedings arising from the same events. Using documents derived from one type of proceeding in another entails risk, especially when the documents are of a highly private and confidential nature. Clarification of the procedure to be followed when documents flow from the civil to the criminal side is overdue, and something lawyers can expect to see soon.

Elizabeth Grace is a civil sexual abuse lawyer in Toronto who has specialized in sexual assault matters for more than two decades. She is a partner of the law firm Lerners LLP.

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