Docs obtained under access legislation producible in litigation despite any government interest

On January 10th, the New Brunswick Court of Appeal held that various RCMP records obtained by a plaintiff under access legislation and listed in her Schedule B were producible notwithstanding her privilege claim.

The Court, in essence, rejected the plaintiff’s suggestion that the RCMP had a continuing interest in the plaintiff’s use of the documents. It held that the Wagg screening process for dealing with production and use of Crown brief materials did not apply because the plaintiff did not obtain the records from the Crown pursuant to the Stinchcombe duty. Similarly, it held the documents could not be subject to public interest privilege given they had been produced by the RCMP pursuant to an access reqeust. The Court commented:

Ms. Bennett’s claim that “[f]rom a public policy perspective a person should be able to access their personal information which is held by any government department including the RCMP without fear that once they access that information it could be subject to production to a stranger by virtue of litigation” is irreconcilable with the disclosure obligations of a party who launches a civil action where the documents are relevant to the subject-matter of the claim.

The Court also held the records were not subject to litigation privilege, though obtained by the plaintiff’s counsel after the start of litigation.

Bennett v State Farm Fire and Casualty Company, 2013 NBCA 4 (CanLII).

Case Report – “Crown brief” production issue heading to BCCA

On February 3rd, the British Columbia Court of Appeal granted leave and expedited the 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 meantime, the defendant 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 ultimately applied a screening test like that endorsed by the Ontario Court of Appeal in D.P. v. Wagg and held that the Crown had not demonstrated that the balance of public and private interests weighed against production:

The Crown has tendered affidavit evidence suggesting that the criminal prosecution might be jeopardized by disclosure of any documents to the plaintiff because the material might find its way to potential witnesses, to the jury pool, or to persons who could seek to subvert the course of justice.  While the affidavit evidence contains general statements of possible adverse effects resulting from premature disclosure, it does not identify any specific concerns in the context of the Antunes prosecution.  Moreover, the possibility of any adverse effect can be materially reduced, or eliminated, by an appropriate undertaking from counsel and the plaintiff in the civil action.

Though this is a fairly discrete finding, in granting leave the Court of Appeal framed the issue broadly and as being about “the treatment of police investigations results in civil proceedings while criminal charges are outstanding” – that is, as being about the very principles reflected in Wagg. It indicated that hearing dates were available in late March and April and ordered the appellant’s factum to be delivered in late February.

Wong v. Antunes, 2009 BCCA 60.