Last week’s Supreme Court of Canada decision in Doucette (Litigation Guardian of) v. Wee Watch Day Care Systems Inc. 2008 SCC 8 deals with the implied undertaking rule.
In Ontario R. 30.1 provides:
Deemed Undertaking
(3) All parties and their counsel are deemed to undertake not to use evidence or information to which this Rule applies for any purposes other than those of the proceeding in which the evidence was obtained.
The implied undertaking rule, however, is part of the Common Law and is grounded on the view that the obligation to produce must be for limited purposes only: Tricontinental Investments Co. v. Guarantee Co. of North America (1982), 39 O.R. (2d) 614 (Ont. H.C.), see also, Phillips v. Nova Scotia (Commissioner, Public Inquiries Act), [1995] 2 S.C.R. 97 (S.C.C.).
Doucette considered whether the implied undertaking survives the litigation in which it arose and whether it provides any protection from criminal disclosure following the civil production. The answers, shortly put, are Yes and Yes.
In 2001, a young child suffered a brain injury at a daycare. The child and her parents sued the daycare for damages, alleging that the injury resulted from negligence. At the same time the police conducted an investigation into the child's injury,
but no charges had been laid. In November 2004, an employee of the daycare brought motions to prevent the release of the information from the transcripts from her discovery to the Attorney General of British Columbia or the police, relying on the implied undertaking rule. The Attorney General opposed the motion arguing there was no protection from the implied undertaking rule outside a civil context. The transcripts of examination remained in the possession of the parties and their counsel. In 2006, the claim was settled and the employee's discovery was never entered into evidence at a trial, nor its contents disclosed in open court.Justice Binnie found that the implied undertaking existed to require full participation in pre-trial discovery. The public interest in obtaining the truth in a civil action outweighed the examinee's privacy interest, but such interest was entitled to some protection, namely, that the documents and answers provided would not be used for a purpose outside of the proceedings in which they were demanded. This was to encourage more complete and candid discovery. Exceptional circumstances could warrant variation or modification of the undertaking where the party did not consent to the use of the information other than in the proceeding where it was demanded. On an application to modify or vary an implied undertaking, the applicant was required to demonstrate on a balance of probabilities the existence of a public interest of greater weight than the values the undertaking was designed to protect. The exceptional circumstances included statutory exceptions, public safety concerns, and the impeachment of inconsistent testimony. A "crimes" exception to the implied undertaking was not appropriate because parties to a civil action were not in the best position to determine whether a crime had been committed, and this was best left to a court to decide.
As this matter settled in 2006 the employee was not required to give evidence at trial, nor were her examination for discovery transcripts read into evidence (evidence given at trial is freed from the implied undertaking rule). Despite settlement, the implied undertaking continued to bind the parties, since the answers and documents had not become part of the court record.The Attorney General demonstrated a sufficient interest in the employee's transcripts to be given standing to apply for variation or modification of the implied undertaking in this case. However, the Attorney General and police could not be permitted to take advantage of statutorily compelled testimony in a civil action to undermine the employee's right to silence and the protection against self-incrimination afforded by the Canadian Charter of Rights of Freedoms.
Some of the decision follows:
20 The root of the implied undertaking is the statutory compulsion to participate fully in pre-trial oral and documentary discovery. If the opposing party seeks information that is relevant and is not protected by privilege, it must be disclosed even if it tends to self-incrimination. See B.C. Rules of Court, rules 27(2), 44, 60(41), 60(42) and 64(1); Ross v. Henriques, [2007] B.C.J. No. 2023, 2007 BCSC 1381 (B.C. S.C.), at paras. 180-81. In Quebec, see Lac d'Amiante du Québec ltée c. 2858-0702 Québec inc., [2001] 2 S.C.R. 743, 2001 SCC 51 (S.C.C.), at para. 42. In Ontario, see Stickney v. Trusz (1973), 2 O.R. (2d) 469 (Ont. H.C.), aff'd (1974), 3 O.R. (2d) 538 (Ont. Div. Ct.), at p. 539, aff'd (1974), 3 O.R. (2d) 538 (Ont. Div. Ct.) (p. 539), leave to appeal ref d, [1974] S.C.R. xii (S.C.C.). The rule in common law jurisdictions was affirmed post-Charter in Tricontinental Investments Co. v. Guarantee Co. of North America (1982), 39 O.R. (2d) 614 (Ont. H.C.), and has been applied to public inquiries, Phillips v. Nova Scotia (Commissioner, Public Inquiries Act), [1995] 2 S.C.R. 97 (S.C.C.).
21 The Attorney General of British Columbia submits that Lac d'Amiante, which was based on the Quebec Code of Civil Procedure, R.S.Q., c. C-25, "was wrongly decided" (factum, at para. 16). An implied undertaking not to disclose pretrial documentary and oral discovery for purposes other than the litigation in which it was obtained is, he argues, contrary to the "open court" principle stated in MacIntyre v. Nova Scotia (Attorney General), [1982] 1 S.C.R. 175 (S.C.C.), and Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (S.C.C.) (factum, at para. 6). The Vancouver Police support this position (factum, at para. 48). The argument is based on a misconception. Pre-trial discovery does not take place in open court. The vast majority of civil cases never go to trial. Documents are inspected or exchanged by counsel at a place of their own choosing. In general, oral discovery is not conducted in front of a judge. The only point at which the "open court" principle is engaged is when, if at all, the case goes to trial and the discovered party's documents or answers from the discovery transcripts are introduced as part of the case at trial.
22 In MacIntyre v. Nova Scotia (Attorney General) , relied on by the Vancouver Police as well as by the Attorney General of British Columbia, the contents of the affidavit in support of the search warrant application were made public, but not until after the search warrant had been executed, and "the purposes of the policy of secrecy are largely, if not entirely, accomplished" (p. 188). At that point the need for public access and public scrutiny prevail. Here the action has been settled but the policies reflected in the implied undertaking (privacy and the efficient conduct of civil litigation generally) remain undiminished. Nor is Edmonton Journal helpful to the respondents. In that case the court struck down a "sweeping" Alberta prohibition against publication of matrimonial proceedings, including publication of the "comments of counsel and the presiding judge". In the face of such prohibition, the court asked, "how then is the community to know if judges conduct themselves properly" (p. 1341). No such questions of state accountability arise in pre-trial discoveries. The situations are simply not analogous.
A. The Rationale for the Implied Undertaking
23 Quite apart from the cases of exceptional prejudice, as in disputes about trade secrets or intellectual property, which have traditionally given rise to express confidentiality orders, there are good reasons to support the existence of an implied (or, in reality, a court-imposed) undertaking.
24 In the first place, pre-trial discovery is an invasion of a private right to be left alone with your thoughts and papers, however embarrassing, defamatory or scandalous. At least one side in every lawsuit is a reluctant participant. Yet a proper pre-trial discovery is essential to prevent surprise or "litigation by ambush", to encourage settlement once the facts are known, and to narrow issues even where settlement proves unachievable. Thus, rule 27(22) of the B.C. Rules of Court compels a litigant to answer all relevant questions posed on an examination for discovery. Failure to do so can result in punishment by way of imprisonment or fine pursuant to rules 56(1), 56(4) and 2(5). In some provinces, the rules of practice provide that individuals who are not even parties can be ordered to submit to examination for discovery on issues relevant to a dispute in which they may have no direct interest. It is not uncommon for plaintiff's counsel aggressively to "sue everyone in sight" not with any realistic hope of recovery but to "get discovery". Thus, for the out-of-pocket cost of issuing a statement of claim or other process, the gate is swung open to investigate the private information and perhaps highly confidential documents of the examinee in pursuit of allegations that might in the end be found to be without any merit at all.
25 The public interest in getting at the truth in a civil action outweighs the examinee's privacy interest, but the latter is nevertheless entitled to a measure of protection. The answers and documents are compelled by statute solely for the purpose of the civil action and the law thus requires that the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy that purpose and that purpose alone. Although the present case involves the issue of self-incrimination of the appellant, that element is not a necessary requirement for protection. Indeed, the disclosed information need not even satisfy the legal requirements of confidentiality set out in Slavutych v. Baker (1975), [1976] 1 S.C.R. 254 (S.C.C.). The general idea, metaphorically speaking, is that whatever is disclosed in the discovery room stays in the discovery room unless eventually revealed in the courtroom or disclosed by judicial order.
26 There is a second rationale supporting the existence of an implied undertaking. A litigant who has some assurance that the documents and answers will not be used for a purpose collateral or ulterior to the proceedings in which they are demanded will be encouraged to provide a more complete and candid discovery. This is of particular interest in an era where documentary production is of a magnitude ("litigation by avalanche") as often to preclude careful pre-screening by the individuals or corporations making production. See Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R. (2d) 1 (B.C. C.A.), per Esson J.A. dissenting, at pp. 10-11.
27 For good reason, therefore, the law imposes on the parties to civil litigation an undertaking to the court not to use the documents or answers for any purpose other than securing justice in the civil proceedings in which the answers were compelled (whether or not such documents or answers were in their origin confidential or incriminatory in nature). See Home Office v. Harman (1982), [1983] 1 A.C. 280 (U.K. H.L.); Lac d'Amiante; Hunt v. T & N plc ; Shaw Estate v. Oldroyd, [2007] B.C.J. No. 1310, 2007 BCSC 866 (B.C. S.C.), at para. 21; Rayman Investments & Management Inc. v. Canada Mortgage & Housing Corp., [2007] B.C.J. No. 628, 2007 BCSC 384 (B.C. S.C.), Wilson v. McCoy (2006), 59 B.C.L.R. (4th) 1, 2006 BCSC 1011 (B.C. S.C.); Laxton Holdings Ltd. v. Madill, [1987] 3 W.W.R. 570 (Sask. C.A.); Blake v. Governor & Co. of Adventurers of England Trading into Hudson's Bay (1987), [1988] 1 W.W.R. 176 (Man. Q.B.); 755568 Ontario Ltd. v. Linchris Homes Ltd. (1990), 1 O.R. (3d) 649 (Ont. Gen. Div.); Rocca Enterprises Ltd. v. University Press of New Brunswick Ltd. (1989), 103 N.B.R. (2d) 224 (N.B. Q.B.); Eli Lilly & Co. v. Interpharm Inc. (1993), 161 N.R. 137 (Fed. C.A.). Anumber of other decisions are helpfully referenced in W. A. Stevenson and J. E. Côté, Civil Procedure Encyclopedia (2003), Vol. 2, at pp. 42-36 et seq.; and C. Papile, "The Implied Undertaking Revisited" (2006), 32 Adv. Q. 190, at pp. 194-96.
28 The need to protect the privacy of the pre-trial discovery is recognized even in common law jurisdictions where there is no implied undertaking. See J. B. Laskin, "The Implied Undertaking" (a paper presented to the CBA-Ontario, CLE Conference on Privilege and Confidential Information in Litigation -- Current Developments and Future Trends, October 19, 1991), at pp. 36-40. Rule 26(c) of the United States Federal Rules of Civil Procedure provides that a court may, upon a showing of "good cause", grant a protective order to maintain the confidentiality of information disclosed during discovery. The practical effect is that the courts routinely make confidentiality orders limited to pre-trial disclosure to protect a party or person being discovered "from annoyance, embarrassment, oppression, or undue burden or expense". See, e.g., Cipollone v. Liggett Group Inc., 785 F.2d 1108 (U.S. C.A. 3rd Cir. 1986).
B. Remedies for Breach of the Implied Undertaking
29 Breach of the undertaking may be remedied by a variety of means including a stay or dismissal of the proceeding, or striking a defence, or, in the absence of a less drastic remedy, contempt proceedings for breach of the undertaking owed to the court. See Lac d'Amiante, at para. 64, and Goodman v. Rossi (1995), 125 D.L.R. (4th) 613 (Ont. C.A.), at p. 624.
C. Exceptional Circumstances May Trump the Implied Undertaking
30 The undertaking is imposed in recognition of the examinee's privacy interest, and the public interest in the efficient conduct of civil litigation, but those values are not, of course, absolute. They may, in turn, be trumped by a more compelling public interest. Thus, where the party being discovered does not consent, a party bound by the undertaking may apply to the court for leave to use the information or documents otherwise than in the action, as described in Lac d'Amiante, at para. 77:
Before using information, however, the party in question will have to apply for leave, specifying the purposes of using the information and the reasons why it is justified, and both sides will have to be heard on the application.
In such an application the judge would have access to the documents or transcripts at issue.
D. Applications Should Be Dealt with Expeditiously
31 The injury to Jade Doucette occurred on November 19, 2001. The police investigation was launched shortly thereafter. Almost four years ago the appellant was (briefly) arrested. Three and a half years ago the present court applications were launched. Over two years ago the appellant was examined for discovery. It is apparent that in many of these cases delay will defeat the purpose of the application. It is important that they proceed expeditiously.
E. Criteria on the Application for a Modification or Variance of the Implied Undertaking
32 An application to modify or relieve against an implied undertaking requires an applicant to demonstrate to the court on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation. In a case like the present, of course, there weighs heavily in the balance the right of a suspect to remain silent in the face of a police investigation, and the right not to be compelled to incriminate herself. The chambers judge took the view (I think correctly) that in this case that factor was decisive. In other cases the mix of competing values may be different. What is important in each case is to recognize that unless an examinee is satisfied that the undertaking will only be modified or varied by the court in exceptional circumstances, the undertaking will not achieve its intended purpose.
33 Reference was made to Crest Homes plc v. Marks, [1987] 2 All E.R. 1074 (U.K. H.L.), where Lord Oliver said, on behalf of the House of Lords, that the authorities "illustrate no general principle beyond this, that the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery" (p. 1083). I would prefer to rest the discretion on a careful weighing of the public interest asserted by the applicant (here the prosecution of a serious crime) against the public interest in protecting the right against self-incrimination as well as upholding a litigant's privacy and promoting an efficient civil justice process. What is important is the identification of the competing values, and the weighing of one in the light of the others, rather than setting up an absolute barrier to occasioning any "injustice to the person giving discovery". Prejudice, possibly amounting to injustice, to a particular litigant may exceptionally be held justified by a higher public interest, as in the case of the accused whose solicitor-client confidences were handed over to the police in Smith v. Jones , [1999] 1 S.C.R. 455 (S.C.C.), a case referred to in the courts below, and discussed hereafter. Of course any perceived prejudice to the examinee is a factor that will always weigh heavily in the balance. It may be argued that disclosure to the police of the evil secrets of the psychopath at issue in Smith v. Jones may have been prejudicial to him but was not an "injustice" in the overall scheme of things, but such a gloss would have given cold comfort to an accused who made his disclosures in the expectation of confidentiality. If public safety trumps solicitor-client privilege despite a measure of injustice to the (unsympathetic) accused in Smith v. Jones , it can hardly be disputed in this jurisdiction that the implied undertaking rule would yield to such a higher public interest as well.
34 Three Canadian provinces have enacted rules governing when relief should be given against such implied or "deemed" undertakings, (see Queen's Bench Rules, M.R. 553/88, r. 30.1 (Manitoba), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 30.1 (Ontario), and Rules of Civil Procedure, r. 30.1 (Prince Edward Island)). I believe the test formulated therein (in identical terms) is apt as a reflection of the common law more generally, namely:
If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that [the implied or "deemed" undertaking] does not apply to the evidence or to information obtained from it, and may impose such terms and give such direction as are just.
35 The case law provides some guidance to the exercise of the court's discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted. See LAC Minerals Ltd. v. New Cinch Uranium Ltd. (1985), 50 O.R. (2d) 260 (Ont. H.C.), at pp. 265-66; Crest Homes, at p. 1083; Ed Miller Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 A.R. 323 (Alta. C.A.); Harris v. Sweet, [2005] B.C.J. No. 1520, 2005 BCSC 998 (B.C. Master); Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 27 C.P.C. (4th) 252 (B.C. S.C.).
36 On the other hand, courts have generally not favoured attempts to use the discovered material for an extraneous purpose, or for an action wholly unrelated to the purposes of the proceeding in which discovery was obtained in the absence of some compelling public interest. See, e.g., Lubrizol Corp. v. Imperial Oil Ltd. (1990), 33 C.P.R. (3d) 49 (Fed. T.D.), at p. 51. In Livent Inc. v. Drabinsky (2001), 53 O.R. (3d) 126 (Ont. S.C.J. [Commercial List]), the court held that a non-party to the implied undertaking could in unusual circumstances apply to have the undertaking varied, but that relief in such cases would virtually never be given (p. 130).
37 Some applications have been refused on the basis that they demonstrate precisely the sort of mischief the implied undertaking rule was designed to avoid. In 755568 Ontario Ltd. , for example, the plaintiff sought leave to send the defendant's discovery transcripts to the police. The court concluded that the plaintiff's strategy was to enlist the aid of the police to discover further evidence in support of the plaintiff's claim and/or to pressure the defendant to settle (p. 655).
(i) The Balancing of Interests
38 As stated, the onus in each case will be on the applicant to demonstrate a superior public interest in disclosure, and the court will be mindful that an undertaking should only be set aside in exceptional circumstances. In what follows I do not mean to suggest that the categories of superior public interest are fixed. My purpose is illustrative rather than exhaustive. However, to repeat, an undertaking designed in part to encourage open and generous discovery by assuring parties being discovered of confidentiality will not achieve its objective if the confidentiality is seen by reluctant litigants to be too readily set aside.
(ii) Statutory Exceptions
39 The implied undertaking rule at common law, and in those jurisdictions which have enacted rules, more or less codifying the common law, is subject to legislative override. In the present case for example, the Attorney General of British Columbia and the Vancouver Police rely on s. 14 of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, which provides that:
(1) A person who has reason to believe that a child needs protection under section 13 must promptly report the matter to a director or a person designated by a director.
(2) Subsection (1) applies even if the information on which the belief is based
(a) is privileged, except as a result of a solicitor-client relationship, or
(b) is confidential and its disclosure is prohibited under another Act.
It is apparent from the extensive police investigation to date and the appearance of the Attorneys General and the Vancouver Police in these proceedings that a report was made to the authorities. We do not know the details. Undoubtedly, a report could have been made without reference to anything said or produced at discovery. At this point the matter has proceeded beyond a mere "report" and involves the collection of evidence. This will require, in the ordinary way laid down by Parliament in s. 487 of the Criminal Code, the application for a search warrant or a subpoena duces tecum at trial, if there is a trial.
(iii) Public Safety Concerns
40 One important public interest flagged by the chambers judge was the "public safety" issue raised by way of analogy to Smith v. Jones , a case dealing with solicitor-client privilege. While solicitor-client privilege constitutes an interest higher than the privacy interest at issue here, the chambers judge used the case to illustrate the relevant balancing of interests. There, a psychiatrist was retained by defence counsel to prepare an assessment of the accused for purposes of the defence generally, including potential submissions on sentencing in the event of a conviction. During his interview with the psychiatrist, the accused described in considerable detail his plan to kidnap, rape and kill prostitutes. The psychiatrist concluded the accused was a dangerous individual who would, more likely than not, commit future offences unless he received immediate psychiatric treatment. The psychiatrist wished to take his concerns to the police and applied to the court for leave to do so notwithstanding that the psychiatrist's only access to the accused was under the umbrella of solicitor-client privilege. In such a case the accused/client would undoubtedly consider himself to be the victim of an injustice, but our Court held that the privilege yielded to "clear and imminent threat of serious bodily harm to an identifiable group ... if this threat is made in such a manner that a sense of urgency is created" (para. 84). Further, in circumstances of "immediate and serious danger", the police may be contacted without leave of the court (paras. 96-97). If a comparable situation arose in the context of an implied undertaking, the proper procedure would be for the concerned party to make application to a chambers judge but if, as discussed in Smith v. Jones there existed a situation of "immediate and serious danger", the applicant would be justified in going directly to the police, in my opinion, without a court order.
(iv) Impeaching Inconsistent Testimony
41 Another situation where the deponent's privacy interest will yield to a higher public interest is where the deponent has given contradictory testimony about the same matters in successive or different proceedings. If the contradiction is discovered, the implied undertaking rule would afford no shield to its use for purposes of impeachment. In provinces where the implied undertaking rule has been codified, there is a specific provision that the undertaking "does not prohibit the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding", see Manitoba r. 30.1(6), Ontario r. 30.1.01(6), Prince Edward Island r. 30.1.01(6). While statutory, this provision, in my view, also reflects the general common law in Canada. An undertaking implied by the court (or imposed by the legislature) to make civil litigation more effective should not permit a witness to play games with the administration of justice: R. v. Henry, [2005] 3 S.C.R. 609, 2005 SCC 76 (S.C.C.). Any other outcome would allow a person accused of an offence "[w]ith impunity [to] tailor his evidence to suit his needs in each particular proceeding" (R. v. Nedelcu (2007), 41 C.P.C. (6th) 357 (Ont. S.C.J.), at paras. 49-51).
(v) The Suggested "Crimes" Exception
42 As stated, Kirkpatrick J.A. concluded that "the undertaking in the action cannot form a shield from the detection and prosecution of crimes in which the public has an overriding interest" (para. 48). In her view,
a party obtaining production of documents or transcriptions of oral examination of discovery is under a general obligation, in most cases, to keep such document confidential. A party seeking to use the discovery evidence other than in the proceedings in which it is produced must obtain the permission of the disclosing party or leave of the court. However, the obligation of confidentiality does not extend to bona fide disclosure of criminal conduct. On the other hand, non-bona fide disclosure of alleged criminal conduct would attract serious civil sanctions for contempt. [para. 56]
43 The chambers judge put his finger on one of the serious difficulties with such an exception. He wrote:
... considerations of practicality support keeping evidence of crimes within the scope of the undertaking. In this regard, it should be understood that evidence relating to a crime may vary from mere suspicion to blatant admissions, from peripheral clues to direct evidence, from minor offences to the most heinous. There are also many shades and variations in between these extremes. [para. 27]
This difficulty is compounded by the fact that parties to civil litigation are often quick to see the supposed criminality in what their opponents are up to, or at least to appreciate the tactical advantage that threats to go to the police might achieve, and to pose questions to the examinee to lay the basis for such an approach: see 755568 Ontario Ltd. , at p. 656. The rules of discovery were not intended to constitute litigants as private attorneys general.
44 The chambers judge took the view that "leaving the discretionary power of exemption or variation with the courts is preferable to giving litigants the power to report to the police, without a court order, anything that might relate to a criminal offence" (para. 27). I agree. On such an application the court will be able to weigh against the examinee's privacy interest the seriousness of the offence alleged, the "evidence" or admissions said to be revealed in the discovery process, the use to which the applicant or police may put this material, whether there is evidence of malice or spite on the part of the applicant, and such other factors as appear to the court to be relevant to the exercise of its discretion. This will include recognition of the potential adverse effects if the protection of the implied undertaking is seen to be diluted or diminished.
45 Kirkpatrick J.A. noted that in some circumstances
neither party has an interest in or is willing to seek court ordered relief from the disclosure of information under the undertaking or otherwise. Nor does it [the chambers judge's approach] contemplate non-exigent circumstances of disclosed criminal conduct. It is easy to imagine a situation in which criminal conduct is disclosed in the discovery process, but no one apprehends that immediate harm is likely to result. [para. 55]
This is true, but it presupposes that the police are entitled to be handed a transcript of statutorily compelled answers which they themselves have no authority to compel, thereby using the civil discovery process to obtain indirectly what the police have no right to obtain directly. Such a rule, if accepted, would undermine the freedom of a suspect to cooperate or refuse to cooperate with the police, which is an important element of our criminal law.
46 In reaching her decision, Kirkpatrick J.A. relied on dicta of the House of Lords in Rank Film Distributors Ltd. v. Video Information Centre (1981), [1982] A.C. 380 (U.K. H.L.) (p. 425). Lord Fraser said:
If a defendant's answers to interrogatories tend to show that he has been guilty of a serious offence I cannot think that there would be anything improper in his opponent reporting the matter to the criminal authorities with a view to prosecution, certainly if he had first obtained leave from the court which ordered the interrogatories, and probably without such leave. ... [p. 447]
These observations, however, must be read in light of the fact that in England, unlike British Columbia, there existed at the time (since amended) "a privilege against compulsory self-incrimination by discovery or by answering interrogatories" (p. 446). There was thus absent from the English procedure the very foundation of the appellant's case, namely that she had no right to refuse to answer questions on discovery that might incriminate her, because she was obliged by statute to give the truth, the whole truth and nothing but the truth.
47 It is true that solicitor-client privilege includes a "crime" exception, but here again there is no proper analogy to an implied undertaking. In Solosky v. Canada (1979), [1980] 1 S.C.R. 821 (S.C.C.), Dickson J. observed at p. 835:
... if a client seeks guidance from a lawyer in order to facilitate the commission of a crime or a fraud, the communication will not be privileged and it is immaterial whether the lawyer is an unwitting dupe or knowing participant.
See also R. v. Shirose, [1999] 1 S.C.R. 565 (S.C.C.). Abuse of solicitor-client privilege to facilitate criminality is contrary to its purpose. Adoption of the implied undertaking to facilitate full disclosure on discovery even by crooks is of the very essence of its purpose.
In England, the weight of authority now seems to favour requiring leave of the court where the protected material relates to alleged criminality. See Attorney General of Gibraltar v. May (1998), [1999] 1 W.L.R. 998 (Eng. C.A.), at pp. 1007-8; Bank of Crete S.A. v. Koskotas (No. 2), [1992] 1 W.L.R. 919 (Eng. Ch. Div.), at p. 922; Sybron Corp. v. Barclays Bank PLC (1984), [1985] 1 Ch. 299 (Eng. Ch. Div.), at p. 326. The same practice prevails in Australia: Bailey v. Australian Broadcasting Corp., [1995] 1 Qd.R. 476 (Queensland S.C.); Commonwealth v. Temwood Holdings Pty. Ltd. (2001), 25 W.A.R. 31, [2001] WASC 282 (Western Australia S.C.).
48 In reaching her conclusion, Kirkpatrick J.A. rejected the view expressed in 755568 Ontario Ltd. and Perrin v. Beninger, [2004] O.J. No. 2353 (Ont. Master), that the public interest in investigating possible crimes is not in all cases sufficient to relieve against the undertaking. It is inherent in any balancing exercise that one interest will not always and in every circumstance prevail over other interests. It will depend on the facts. In Tyler v. Minister of National Revenue (1990), [1991] 2 F.C. 68 (Fed. C.A.), in a somewhat analogous situation of statutory compulsion, the appellant was charged with narcotics offences. Revenue Canada, on reading about the charges in a newspaper, began to investigate the possibility that the appellant had not reported all of his income in earlier years. The Minister invoked his statutory powers to compel information from the appellant, who sought to prevent the Minister from communicating any information thereby obtained to the RCMP. Stone J.A., speaking for an unanimous Federal Court of Appeal, agreed that the Minister should be permitted to continue using his compulsory audit for Income Tax Act purposes but prohibited the Minister from sharing the information compulsorily obtained from the appellant with the RCMP. Stone J.A. was of the view that the prosecution of crime did not necessarily trump a citizen's privacy interest in the disclosure of statutorily compelled information and I agree with him.
49 The B.C. Court of Appeal qualified its "crimes" exception by the requirement that the communication to the police be made in good faith. Aside from the difficulties in applying such a requirement, as previously mentioned, I do not see how a "good faith" requirement is consistent with the court's rationale for granting relief against the undertaking. If, as the hypothesis requires, it is determined in a particular case that the public interest in investigating a crime and bringing the perpetrators to justice is paramount to the examinee's privacy interest, the good faith of the communication should no more be an issue here than in the case of any other informant. Informants are valued for what they can tell not for their worthy motives.
50 Finally, Kirkpatrick J.A. feared that
if an application to court is required before a party may disclose the alleged conduct, the perpetrator of the crime may be notified of the disclosure and afforded the opportunity to destroy or hide evidence or otherwise conceal his or her involvement in the alleged crime. [para. 55]
This concern is largely remedied by permitting the party wishing to be relieved of the obligation of confidentiality to apply to the court ex parte. It would be up to the chambers judge to determine whether the circumstances justify proceeding ex parte, or whether the deponent and other parties to the proceeding should be notified of the application.
F. Continuing Nature of the Implied Undertaking
51 As mentioned earlier, the lawsuit against the appellant and others was settled in 2006. As a result the appellant was not required to give evidence at a civil trial; nor were her examination for discovery transcripts ever read into evidence. The transcripts remain in the hands of the parties and their lawyer. Nevertheless, the implied undertaking continues. The fact that the settlement has rendered the discovery moot does not mean the appellant's privacy interest is also moot. The undertaking continues to bind. When an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial the undertaking is spent, but not otherwise, except by consent or court order. See Lac d'Amiante, at paras. 70 and 76; Shaw Estate v. Oldroyd , at paras. 20-22. It follows that decisions to the contrary, such as the decision of the House of Lords in Home Office v. Harman (where a narrow majority held that the implied undertaking not to disclose documents obtained on discovery continued even after the documents in question had been read aloud in open court), should not be followed in this country. The effect of the Harman decision has been reversed by a rule change in its country of origin.
G. Who Is Entitled to Notice of an Application to Modify or Vary the Implied Undertaking
52 While the issue of notice will be for the chambers judge to decide on the facts of any particular case, I do not think that in general the police are entitled to notice of such an application. Nor are the media. The only parties with a direct interest, other than the applicant, are the deponent and the other parties to the litigation.
H. Application to Modify or Vary an Implied Undertaking by Strangers to It
53 I would not preclude an application to vary an undertaking by a non-party on the basis of standing, although I agree with Livent Inc. v. Drabinsky that success on such an application would be unusual. What has already been said provides some illustrations of potential third party applicants. In this case the Attorney General of British Columbia, supported by the Vancouver Police, demonstrated a sufficient interest in the appellant's transcripts to be given standing to apply. Their objective was to obtain evidence that would help explain the events under investigation, and possibly to incriminate the appellant. I think it would be quite wrong for the police to be able to take advantage of statutorily compelled testimony in civil litigation to undermine the appellant's right to silence and the protection against self-incrimination afforded him by the criminal law. Accordingly, in my view, the present application was rightly dismissed by the chambers judge. On the other hand, a non-party engaged in other litigation with an examinee, who learns of potentially contradicting testimony by the examinee in a discovery to which that other person is not a party, would have standing to seek to obtain a modification of the implied undertaking and for the reasons given above may well succeed. Of course if the undertaking is respected by the parties to it, then non-parties will be unlikely to possess enough information to make an application for a variance in the first place that is other than a fishing expedition. But the possibility of third party applications exists, and where duly made the competing interests will have to be weighed, keeping in mind that an undertaking too readily set aside sends the message that such undertakings are unsafe to be relied upon, and will therefore not achieve their broader purpose.
I. Use Immunity
54 Reference was earlier made to the fact that at her discovery the appellant claimed the benefit of s. 5 of the Canada Evidence Act which eliminates the right formerly enjoyed by a witness to refuse to answer "any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person" (s. 5(1)). Answers given under objection, however, "shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury" (s. 5(2)). Similar protection is provided under s. 4 of the British Columbia Evidence Act. Section 13 of the Charter applies without need of objection. Derivative use immunity is a question for the criminal court at any trial that may be held: R. v. S. (R.J.) , [1995] 1 S.C.R. 451 (S.C.C.), at paras. 191-92 and 204. The appellant's statutory or Charter rights are not in peril in the present appeal and her claims to Charter relief at this stage were properly dismissed.
J. Implied Undertaking Is No Bar to Persons Not a Party to It
55 None of the parties to the original civil litigation applied to vary the undertaking. Neither the Attorneys General nor the police are parties to the implied undertaking and they are not bound by its terms. If the police, as strangers to the undertaking, have grounds, they can apply for a search warrant under s. 487 of the Criminal Code in the ordinary way.
56 The appellant's discovery transcript and documents, while protected by an implied undertaking of the parties to the court, are not themselves privileged, and are not exempt from seizure: R. v. Serendip Physiotherapy Clinic (2004), 189 C.C.C. (3d) 417 (Ont. C.A.), at para. 35. A search warrant, where available, only gives the police access to the material. It does not authorize its use of the material in any proceedings that may be initiated.
57 If criminal charges are brought, the prosecution may also compel a witness to produce a copy of the documents or transcripts in question from his or her possession by a subpoena duces tecum. The trial judge would then determine what, if any use could be made of the material, having regard to the appellant's Charter rights and any other relevant considerations. None of these issues arise for decision on the present appeal.
K. Disposition of the Present Appeal
58 As stated, none of the parties bound by the implied undertaking made application to the court to be relieved from its obligations. The application is made solely by the Attorney General of British Columbia to permit
any person in lawful possession of the transcript to provide a copy to the police or to the Attorney-General to assist in the investigation and/or prosecution of any criminal offence which may have occurred.... [B.C.S.C., at para. 6]
While I would not deny the Attorney General standing to seek to vary an implied undertaking to which he is not a party, I agree with the chambers judge that his application should be rejected on the facts of this case. The purpose of the application was to sidestep the appellant's silence in the face of police investigation of her conduct. The authorities should not be able to obtain indirectly a transcript which they are unable to obtain directly through a search warrant in the ordinary way because they lack the grounds to justify it.
