Wagg Motions: Is There a Better Way?

In 2004, the Ontario Court of Appeal released the decision D.P. v Wagg, 2004 CanLII 39048 (Wagg). And with it birthed an entirely new bureaucracy devoted to Wagg motions.

In Wagg, the defendant was charged criminally for sexually assaulting his gynecological patient, referred to as D.P. D.P. then sued her doctor civilly for sexual assault. In the civil proceeding, D.P. wanted the defendant to disclose the contents of the Crown Brief, which was produced to him in the criminal action. The defendant refused to produce the Crown Brief to her. The plaintiff then brought a motion to compel the disclosure of the contents of the Crown Brief.

In its decision, the Ontario Court of Appeal endorsed the screening process enunciated by the Divisional Court for the disclosure of the Crown Brief. It was determined that production of the Crown Brief should occur after (1) the appropriate state agencies have had the opportunity to assess the public interest consequences involved in releasing the material and (2) either a court order or the consent of all the parties had been obtained. The process can be summarized as follows:

• The party in possession or control of the Crown brief must disclose its existence in the party’s affidavit of documents and describe in general terms the nature of its contents;

• The party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced;

• The judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally “whether there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information.

Most of the time Wagg motions are resolved by a court order (on consent), which begs the question – why the necessity of the Court order to begin with? Is this really the best use of judicial resources? Is this really best the use of counsel’s time?

I would like to share the thoughts of Mr. Roger C., as outlined in the Advocates’ Society’s Blog:

In MVA cases, the bureaucracy the Court of Appeal has mandated in Wagg is unnecessary and expensive. The cost of providing perfect privacy protection is too high… [The] screening [process] is necessary in a sexual assault charge, but we’ve gone way overboard with screening all police records in motor vehicle cases (which give rise to the vast majority of Wagg motions). The production of police records now routinely requires a time consuming motion and screening process[,] which accomplishes only miniscule victories for the protection of the privacy interests of non-parties.

I recommend that the government modify the common law and develop a specialized screening process for Crown Briefs pertaining to motor vehicle cases. This would circumvent the need for routine Wagg motions that would have otherwise been resolved on consent.