When A Criminal Defence Must Yield To Civil Protections: The Use Of Compelled Documentary Productions From A Civil Lawsuit

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...