The case law is beginning to swing in favour of early production of the police file or Crown brief
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Since the Ontario Court of Appeal’s 2004 decision in D.P. v. Wagg, it’s become commonplace that civil litigation plays second fiddle to the crown when there is an ongoing prosecution and victims must wait their turn — but times are changing warns Nick Todorovic, associate at McLeish Orlando LLP.
A 30.10 motion in civil litigation is brought before the court to obtain an order for the production from a non-party, such as a police service or the Attorney General, including their entire police file or the Crown brief. Todorovic thinks more plaintiff lawyers should bring the motions right away rather than waiting for a Crown proceeding to end. Ideally, they would be granted access to the file concurrently with any Crown proceedings but the Crown is reluctant to hand that information over, often giving reasons for withholding that are “hand-wavey and vague,” Todorovic says, including citing the fair trial rights of the accused and the public interest in the pursuit of justice. It is the Crown’s onus to establish that the production of a police file or Crown brief before a prosecution has ended would be deleterious to the public interest.
The courts give a lot of deference to the Crown in how they deal with this following Wagg, and when arguing these motions he has yet to be satisfied with an explanation by the Crown as to why productions cannot be granted before a Crown prosecution has ended. According to Wagg, the Crown is obligated to assist the court as to why the requested documents must be witheld before the Crown prosecution is concluded. It is not an “all or nothing” exercise. The Crown cannot simply stand up and say “no”. The material contained within the police file and Crown brief are not the property of the Crown but is only the “fruits of the investigation”.
One of the main arguments the Crown puts forth when contesting these motions is the potential for witness tainting. When it comes to the possibility of witness tainting, the Crown has to prove it’s a possibility “and a lot of that is pure speculation — they don’t say how or why,” he notes. As for the accused’s Charter rights, while they must be upheld especially if their liberties are at stake, the majority of cases in these situations are motor vehicle accidents and fall under Highway Traffic Act offences with no jail time and minimal fines. In most situations the accused is also the defendant in a civil proceeding and generally does not oppose the Crown brief or police file being produced while their charges are pending which takes any legs out of the argument of the fair trial rights of the accused. Todorovic says the “public interest is not protected or promoted by withholding the production of the police file or the Crown brief from the victims in order to prosecute the accused for a couple hundred bucks and a slap on the wrist”. In comparison, quite often the victims are often dealing with life-altering injuries or have died.
“You could hit someone with your car causing them to lose a leg, and you might get charged and convicted for $80 while the other person has lost most of their function forever,” he says.
An ongoing Crown prosecution can generally leave the civil litigation at a standstill, which Todorovic sees as creating significant delays in getting clients the access to justice and finality that they need — an irony not lost on him, as “from a plaintiff perspective we’re always told to keep moving files as fast as you can for your client” but then are told to wait sometimes years for Crown prosecution to wrap up. Delays cause a host of issues, including fading memories of witnesses because what will people remember about the accident years down the road.
“It creates a problem, especially if liability is a very contentious issue,” he says. “You could get past the two year mark and there could be additional defendants identified which are only contained within the police file or Crown brief. Now you have to deal with limitation issues and discoverability of those defendants when you could have identified them before the two year mark had the police file or Crown brief been produced earlier.”
As the accused in a prosecution is also a party to the civil litigation, it puts the defence at an advantage because they get to see the Crown brief and conduct an investigation well before plaintiffs’ counsel. In some cases, the insurance company will also defend the Crown prosecution to get helpful findings of fact that will help them in the civil action when plaintiffs’ counsel has no ability to engage in the Crown prosecution.
“To allow the accused, the defendant in one proceeding to reach out to witnesses and test their evidence against their statements and get favourable facts for their case where the plaintiff in another proceeding can’t speak to them, has no idea what’s in their statements and can't engage in the same process is completely unfair — and one of the considerations on these 30.10 motions is fairness,” he says, adding victims deserve those same rights. There is no reason why plaintiff’s counsel should not be given the same right.
There are failsafes the Crown can put in place that would allow plaintiff counsel to get the file earlier to investigate and properly analyze their claim without impacting the other proceeding. Todorovic points to confidentiality clauses, which the Crown use all the time with defence counsel for the accused when they give them the Crown brief. For some reason the Crown “has a very difficult time giving it to plaintiff’s counsel because they think we’re going to leak the information to the public and jeopardize their investigation and prosecution,” he says, adding “confidentiality clauses work, and we are officers of the court.”
Though he understands the Attorney General and police services are inundated with 30.10 requests and it’s difficult to process them all, Todorovic has started bringing contested 30.10 motions while charges are still pending despite the fact he’s told he’s doing so prematurely.
“At the end of the day, I don’t see why I have to wait — I have victims that have been subject to these life changing, tragic events where the person injuring my client or killing one of their relatives gets preferential treatment in order to go first and the victims have to wait until they’re done,” Todorovic says. “I think those days are numbered for the Crown.”
Todorovic believes that counsel should contest 30.10 motions with ongoing prosecutions more often to change the status quo. There is nothing in law that states that the Crown gets to proceed first and a victim must wait their turn. The case law is beginning to swing in favour of early production of the police file or Crown brief.
