Case Report – “Crown brief” production judgement by the BCCA

Yesterday, the British Columbia Court of Appeal allowed an appeal of an order that required the Vancouver Police Department to produce records that had become part of the Crown’s brief in a ongoing prosecution.

The plaintiff is the father of a man who was struck and killed by a motor vehicle in a hit and run. The defendant is the man charged criminally for the hit and run. The defendant’s criminal trial has been adjourned and will re-commence later this year. In the civil action, he did not produce to the plaintiff the materials he received from the Crown in its disclosure. This led the plaintiff to apply for third-party production from the police. The Crown then objected, claiming litigation privilege and public interest immunity.

The Supreme Court ordered production last December. It ordered production of records as a class (the class of all records produced in the criminal matter) from the Vancouver Police Department subject to an objection by the Crown to the production of any specific documents. The Crown objected to this process and argued for a process more like that endorsed by the Ontario Court of Appeal in D.P. v. Wagg – that is, one in which the protected status of the documents is presumed subject to an application to be brought by the party seeking production.

The Court of Appeal accepted the Crown’s argument, allowed the appeal and endorsed a rather complex form of order that contemplates a police inspection, a police decision on production and privilege, recovery of costs incurred by the police and court supervision of the police decision on production and privilege.

See here for Erik Magraken’s summary of the case.

Wong v. Antunes, 2009 BCCA 278.

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