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A significant case came down from the S.C.C. earlier this month on the implied undertaking rule, relevant to litigators dealing with civil matters, criminal matters, as well as commercial and IP litigation, as well as related fields. As a result I have taken a detailed perusal through the judgment and extracted a comprehensive summary therefrom. If you would like to review the full judgment yourself (33 pages) the hyperlink to the complete text is provided below.
CIVIL PROCEDURE: IMPLIED UNDERTAKING RULE
Juman v. Doucette (B.C.C.A., May 29, 2006)(31590)
"The appellant, a childcare worker, provided day services in her home. A 16-month-old child suffered a seizure while in her care. The child was later determined to have suffered a brain injury. A civil action claiming negligence was commenced. The Vancouver Police started a criminal investigation, which is still ongoing. The appellant moved, prior to discovery, to prevent the authorities from accessing her discovery without further court order. She relied on the parties' implied undertaking to the court not to use documents or answers on discovery for any purpose other than securing justice in the civil proceedings in which the answers were compelled, whether or not such documents or answers were in their origin confidential or incriminatory in nature. The Attorney General of British Columbia brought a cross-motion to vary the undertaking to permit the authorities to gain access to the discovery transcripts. At discovery, the appellant claimed the protection of the Canadian and British Columbia Evidence Acts and the Canadian Charter of Rights and Freedoms. The transcripts are now in the possession of the parties and/or their counsel. After discovery, the underlying claim settled. The appellant's discovery was never entered into evidence at a trial. Its contents were not disclosed in open court. The chambers judge found that the implied undertaking extended to evidence of crimes and concluded that it was not open to the police to seize the transcript under a search warrant. The Court of Appeal set aside the decision of the chambers judge. In its view, the implied undertaking rule 'does not extend to bona fide disclosure of criminal conduct'. Accordingly, the parties were at liberty to disclose the appellant's discovery evidence to the police. The authorities could also obtain it by any lawful investigative means, including a search warrant or a subpoena duces tecum."
The Supreme Court of Canada (unanimously) allowed the appeal.
Justice Binnie wrote (at pp. 11-16, 19-22, 27-33):
"A. The Rationale for the Implied Undertaking
... pre-trial discovery is an invasion of a private right to be left alone with your thoughts and papers, however embarrassing, defamatory or scandalous. At least one side in every lawsuit is a reluctant participant. Yet a proper pre-trial discovery is essential to prevent surprise or 'litigation by ambush', to encourage settlement once the facts are known, and to narrow issues even where settlement proves unachievable...It is not uncommon for plaintiff's counsel aggressively to 'sue everyone in sight' not with any realistic hope of recovery but to 'get discovery'. Thus, for the out-of-pocket cost of issuing a statement of claim or other process, the gate is swung open to investigate the private information and perhaps highly confidential documents of the examinee in pursuit of allegations that might in the end be found to be without any merit at all.
The public interest in getting at the truth in a civil action outweighs the examinee's privacy interest, but the latter is nevertheless entitled to a measure of protection. The answers and documents are compelled by statute solely for the purpose of the civil action and the law thus requires that the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy that purpose and that purpose alone. Although the present case involves the issue of self-incrimination of the appellant, that element is not a necessary requirement for protection. Indeed, the disclosed information need not even satisfy the legal requirements of confidentiality set out in Slavutych v. Baker, [1976] 1 S.C.R. 254. The general idea, metaphorically speaking, is that whatever is disclosed in the discovery room stays in the discovery room unless eventually revealed in the courtroom or disclosed by judicial order.
...A litigant who has some assurance that the documents and answers will not be used for a purpose collateral or ulterior to the proceedings in which they are demanded will be encouraged to provide a more complete and candid discovery. This is of particular interest in an era where documentary production is of a magnitude ('litigation by avalanche') as often to preclude careful pre-screening by the individuals or corporations making production.
...For good reason, therefore, the law imposes on the parties to civil litigation an undertaking to the court not to use the documents or answers for any purpose other than securing justice in the civil proceedings in which the answers were compelled (whether or not such documents or answers were in their origin confidential or incriminatory in nature).
B. Remedies for Breach of the Implied Undertaking
Breach of the undertaking may be remedied by a variety of means including a stay or dismissal of the proceeding, or striking a defence, or, in the absence of a less drastic remedy, contempt proceedings for breach of the undertaking owed to the court.
C. Exceptional Circumstances May Trump the Implied Undertaking
The undertaking is imposed in recognition of the examinee's privacy interest, and the public interest in the efficient conduct of civil litigation, but those values are not, of course, absolute. They may, in turn, be trumped by a more compelling public interest. Thus, where the party being discovered does not consent, a party bound by the undertaking may apply to the court for leave to use the information or documents otherwise than in the action, as described in Lac d'Amiante, at para. 77:
Before using information, however, the party in question will have to apply for leave, specifying the purposes of using the information and the reasons why it is justified, and both sides will have to be heard on the application.
In such an application the judge would have access to the documents or transcripts at issue.
D. Applications Should Be Dealt with Expeditiously
...It is apparent that in many of these cases delay will defeat the purpose of the application. It is important that they proceed expeditiously.
E. Criteria on the Application for a Modification or Variance of the Implied Undertaking
An application to modify or relieve against an implied undertaking requires an applicant to demonstrate to the court on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation. In a case like the present, of course, there weighs heavily in the balance the right of a suspect to remain silent in the face of a police investigation, and the right not to be compelled to incriminate herself. The chambers judge took the view (I think correctly) that in this case that factor was decisive. In other cases the mix of competing values may be different. What is important in each case is to recognize that unless an examinee is satisfied that the undertaking will only be modified or varied by the court in exceptional circumstances, the undertaking will not achieve its intended purpose.
(i) The Balancing of Interests
As stated, the onus in each case will be on the applicant to demonstrate a superior public interest in disclosure, and the court will be mindful that an undertaking should only be set aside in exceptional circumstances. In what follows I do not mean to suggest that the categories of superior public interest are fixed. My purpose is illustrative rather than exhaustive. However, to repeat, an undertaking designed in part to encourage open and generous discovery by assuring parties being discovered of confidentiality will not achieve its objective if the confidentiality is seen by reluctant litigants to be too readily set aside.
(ii) Statutory Exceptions
The implied undertaking rule at common law, and in those jurisdictions which have enacted rules, more or less codifying the common law, is subject to legislative override.
(iii) Public Safety Concerns
...One important public interest flagged by the chambers judge was the 'public safety' issue raised by way of analogy to Smith v. Jones, a case dealing with solicitor-client privilege...If a comparable situation arose in the context of an implied undertaking, the proper procedure would be for the concerned party to make application to a chambers judge but if, as discussed in Smith v. Jones there existed a situation of 'immediate and serious danger', the applicant would be justified in going directly to the police, in my opinion, without a court order.
(iv) Impeaching Inconsistent Testimony
Another situation where the deponent's privacy interest will yield to a higher public interest is where the deponent has given contradictory testimony about the same matters in successive or different proceedings. If the contradiction is discovered, the implied undertaking rule would afford no shield to its use for purposes of impeachment.
(v) The Suggested 'Crimes' Exception
...The B.C. Court of Appeal qualified its 'crimes' exception by the requirement that the communication to the police be made in good faith. Aside from the difficulties in applying such a requirement, as previously mentioned, I do not see how a 'good faith' requirement is consistent with the court's rationale for granting relief against the undertaking. If, as the hypothesis requires, it is determined in a particular case that the public interest in investigating a crime and bringing the perpetrators to justice is paramount to the examinee's privacy interest, the good faith of the communication should no more be an issue here than in the case of any other informant. Informants are valued for what they can tell not for their worthy motives.
Finally, Kirkpatrick J.A. feared that
if an application to court is required before a party may disclose the alleged conduct, the perpetrator of the crime may be notified of the disclosure and afforded the opportunity to destroy or hide evidence or otherwise conceal his or her involvement in the alleged crime. [para. 55]
This concern is largely remedied by permitting the party wishing to be relieved of the obligation of confidentiality to apply to the court ex parte. It would be up to the chambers judge to determine whether the circumstances justify proceeding ex parte, or whether the deponent and other parties to the proceeding should be notified of the application.
F. Continuing Nature of the Implied Undertaking
As mentioned earlier, the lawsuit against the appellant and others was settled in 2006. As a result the appellant was not required to give evidence at a civil trial; nor were her examination for discovery transcripts ever read into evidence. The transcripts remain in the hands of the parties and their lawyer. Nevertheless, the implied undertaking continues. The fact that the settlement has rendered the discovery moot does not mean the appellant's privacy interest is also moot. The undertaking continues to bind. When an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial the undertaking is spent, but not otherwise, except by consent or court order. See Lac d'Amiante, at paras. 70 and 76; Shaw Estate v. Oldroyd, at paras. 20-22. It follows that decisions to the contrary, such as the decision of the House of Lords in Home Office v. Harman (where a narrow majority held that the implied undertaking not to disclose documents obtained on discovery continued even after the documents in question had been read aloud in open court), should not be followed in this country.
G. Who Is Entitled to Notice of an Application to Modify or Vary the Implied Undertaking
While the issue of notice will be for the chambers judge to decide on the facts of any particular case, I do not think that in general the police are entitled to notice of such an application. Nor are the media. The only parties with a direct interest, other than the applicant, are the deponent and the other parties to the litigation.
H. Application to Modify or Vary an Implied Undertaking by Strangers to It
...the present application was rightly dismissed by the chambers judge. On the other hand, a non-party engaged in other litigation with an examinee, who learns of potentially contradicting testimony by the examinee in a discovery to which that other person is not a party, would have standing to seek to obtain a modification of the implied undertaking and for the reasons given above may well succeed. Of course if the undertaking is respected by the parties to it, then non-parties will be unlikely to possess enough information to make an application for a variance in the first place that is other than a fishing expedition. But the possibility of third party applications exists, and where duly made the competing interests will have to be weighed, keeping in mind that an undertaking too readily set aside sends the message that such undertakings are unsafe to be relied upon, and will therefore not achieve their broader purpose.
I. Use Immunity
Reference was earlier made to the fact that at her discovery the appellant claimed the benefit of s. 5 of the Canada Evidence Act which eliminates the right formerly enjoyed by a witness to refuse to answer 'any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person' (s. 5(1)). Answers given under objection, however, 'shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury' (s. 5(2)). Similar protection is provided under s. 4 of the British Columbia Evidence Act. Section 13 of the Charter applies without need of objection. Derivative use immunity is a question for the criminal court at any trial that may be held: R. v. S. (R.J.), [1995] 1 S.C.R. 451, at paras. 191-92 and 204. The appellant's statutory or Charter rights are not in peril in the present appeal and her claims to Charter relief at this stage were properly dismissed.
J. Implied Undertaking Is No Bar to Persons Not a Party to It
...The appellant's discovery transcript and documents, while protected by an implied undertaking of the parties to the court, are not themselves privileged, and are not exempt from seizure: R. v. Serendip Physiotherapy Clinic (2004), 189 C.C.C. (3d) 417 (Ont. C.A.), at para. 35. A search warrant, where available, only gives the police access to the material. It does not authorize its use of the material in any proceedings that may be initiated.
If criminal charges are brought, the prosecution may also compel a witness to produce a copy of the documents or transcripts in question from his or her possession by a subpoena duces tecum. The trial judge would then determine what, if any use could be made of the material, having regard to the appellant's Charter rights and any other relevant considerations. None of these issues arise for decision on the present appeal.
K. Disposition of the Present Appeal
As stated, none of the parties bound by the implied undertaking made application to the court to be relieved from its obligations. The application is made solely by the Attorney General of British Columbia to permit
any person in lawful possession of the transcript to provide a copy to the police or to the Attorney-General to assist in the investigation and/or prosecution of any criminal offence which may have occurred. . . . [B.C.S.C., at para. 6]
While I would not deny the Attorney General standing to seek to vary an implied undertaking to which he is not a party, I agree with the chambers judge that his application should be rejected on the facts of this case. The purpose of the application was to sidestep the appellant's silence in the face of police investigation of her conduct. The authorities should not be able to obtain indirectly a transcript which they are unable to obtain directly through a search warrant in the ordinary way because they lack the grounds to justify it."
Click here for the full text of case
CRIMINAL LAW: PRIOR CONSISTENT STATEMENTS
R. v. Stirling (B.C.C.A., January 2, 2007)(31795)
"As a result of a single-vehicle accident that killed two people and seriously injured the accused and H, the accused was convicted of criminal negligence causing death and criminal negligence causing bodily harm. The main issue before the trial judge was whether the accused, and not H, was the driver of the vehicle at the time of the accident. A certain line of questioning during H's cross-examination raised the possibility that he had motive to fabricate his testimony. Following a voir dire, the trial judge admitted into evidence several prior consistent statements of H to rebut the suggestion of recent fabrication. The majority of the Court of Appeal upheld the convictions; the dissenting judge would have ordered a new trial on the basis that the trial judge used the prior consistent statements to bolster the general credibility of the witness and for the truth of their contents."
The Supreme Court of Canada held (unanimously) that the appeal is dismissed.
Click here for the full text of case
CRIMINAL LAW: THIRD PARTY PRODUCTION ORDERS
Tele -Mobile Co. v. Ontario (Ont. C.J., September 20, 2006)(31644)
"Amendments to the Criminal Code in 2004 introduced a new investigative tool for law enforcement agencies: a production order that would compel third parties to produce documents or data for use in criminal investigations. Two production orders required Telus to produce call data records. Telus applied for exemptions from the orders on the grounds that the burden of compliance would be unreasonable without compensation due to the cost of retrieving the archived data. The Ontario Court of Justice dismissed the application for exemptions. Telus appealed directly to the Supreme Court, pursuant to s. 40(1) of the Supreme Court Act, arguing that the broad wording in s. 487.012(4) of the Criminal Code permitting a judge to add terms and conditions, allowed for the inclusion of a condition of the production order directing payment of reasonable costs of compliance."
The Supreme Court of Canada (9:0) dismissed the appeal.
Click here for the full text of case
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