Legal Word of the Day: “Criminal Disclosure for Civil Proceedings”

Photo: Niklas Bildhauer

Photo: Niklas Bildhauer

Civil litigants who want to use criminal disclosure materials in civil litigation should seek consent from the police, Crown, and opposing litigants, or obtain a court order to permit such use.

Crown disclosure materials in general can be introduced in civil proceedings. In D.P. v. Wagg (2004), 71 O.R. (3d) 229 (CA) the Ontario Court of Appeal said that fairness will often require that Crown disclosure materials in the hands of one civil litigant will have to be disclosed to the opposing civil litigants:

    “Where the party in possession of the Crown brief has access to the materials, fairness will generally dictate that they be produced to the other side.”

Also:

    “The ‘fruits of the investigation’ in the possession of the Crown ‘are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.’ Society has an interest in seeing that justice is done in civil cases as well as criminal cases, and generally speaking that will occur when the parties have the opportunity to put all relevant evidence before the court. The Crown disclosure may be helpful to the parties in ensuring that they secure all relevant evidence.”

In “The Canadian Charter of Rights Decisions Digest,” Justice Canada, Updated: April 2005 (CanLII), Graham Garton notes that the principle of disclosure is not immutable:

    “As a general rule, a fair hearing must include an opportunity for the parties to know the opposing party’s case so that they may address evidence prejudicial to their case and bring evidence to prove their position. However, the general rule does tolerate certain exceptions.”

Related Case:

Wright v. Dhawan, 2011 HRTO 1807 (CanLII)

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