Often civil cases and criminal cases arise out of the same event. This creates an issue when the defendant of a criminal case is also a defendant in the civil case. Can the defendant then use the discovery evidence from the civil case in his criminal trial? Must the defendant bring a correlative “Wagg” motion to obtain the discovery evidence?
In Ontario, Rule 30.1 sets out the limits for using discovery evidence in one proceeding in another proceeding. Generally, a defendant cannot take discovery evidence from one case and use it another case. However, an exception is carved out to impeach the evidence of a witness.
Recently, the Ontario Divisional Court addressed the boundaries of using documentary discovery from a civil case in a criminal case. In S.C. v N.S., 2017 ONSC 5566, the plaintiff disclosed her most personal medical records as part of a routine documentary discovery process. The civil defence lawyer then provided the production of the documentary discovery to the criminal defence lawyer. The criminal defence lawyer then planned to impeach the complainant (the plaintiff) at trial using her medical records that he obtained from the civil lawyer. This led to the question: “Must a party seek directions from the court prior to using evidence?”
Justice Nordheimer writing for the Divisional Court held that the trial judge is the gatekeeper. The trial judge will therefore determine if the documentary discovery from the civil case can be used in the criminal case (para 35). “Trial judges always have a gatekeeping role regarding evidence that is preferred at a trial.” The trial judge in the criminal case will determine the use of the discovery evidence.
 Contrary to the submissions of the respondent, and the intervener Clinic, this plain reading of the Rule does not mean that the appellant has a carte blanche to use the Discovery Evidence as he wishes. The trial judge in the criminal prosecution will determine if the use of the Discovery Evidence is proper in accordance with the rules that apply to all evidence. Trial judges always have a gatekeeping role regarding evidence that is proffered at a trial. Trial judges must determine if the evidence is properly admissible tested against well-established factors, including whether the evidence is relevant and whether its probative value outweighs any prejudicial effect: Shearing at para. 107.
I found paragraph 35 to be quite vague in that it lacked specific steps that a criminal lawyer must follow. However, I would interpret this paragraph to mean that during the trial defence counsel must “pre-clear the use of discovery material for impeachment” before the criminal trial judge. Defence counsel does not need to bring a motion in the civil case to obtain the documentary productions.
At paragraph 40, Nordheimer J. further clarifies that “there was no breach committed by civil counsel when he provided the Discovery Evidence to criminal counsel.” Once the discovery evidence was disclosed in the civil case, the defendant was entitled to share it with his criminal counsel. To rule otherwise would interfere with the fundamental right of a person to obtain legal advice that is constitutionally guaranteed under s. 10(b) of the Charter.
Although S.C. v N.S. is a well reasoned decision, I am concerned about its implications for civil matters. Civil matters are already experiencing delays. Trial dates in civil cases are routinely given out years in advance. This ruling may incentivize civil counsel to delay routine documentary disclosure to the conclusion of the criminal matter. Further delaying already languishing cases.
(Views are my own and do not represent the views of any organization.)