Canada: When A Criminal Defence Must Yield To Civil Protections: The Use Of Compelled Documentary Productions From A Civil Lawsuit

Last Updated: May 8 2017
Article by Elizabeth K.P. Grace

Because sexual assault is a recognized wrong in many areas of our substantive law, it is quite common for a civil lawsuit to run in parallel with a criminal proceeding arising from the same alleged wrongdoing. When civil, administrative and/or criminal cases take place at the same time, or one after the other, there can be significant ramifications for the different cases. This is illustrated by the recent decision of the Ontario Superior Court in SC v. NS, 2017 ONSC 353, from which leave to appeal was granted on April 26, 2017. Because an ongoing criminal trial has been interrupted to allow the civil courts to rule on the propriety of civil counsel's conduct, one can expect the appeal to Ontario's Divisional Court to be expedited.

In SC v. NS, the plaintiff in a physical and sexual assault lawsuit produced, in compliance with her documentary discovery obligations under the Rules of Civil Procedure, highly private medical, counselling and academic records to the defendant, her former boyfriend. This plaintiff was also the complainant in a parallel criminal case against her former boyfriend. Criminal charges were laid first; the civil action was started later; and the criminal and civil proceedings ended up running in parallel.

Unbeknownst to the plaintiff and her lawyers, the defendant/accused through his civil lawyers shared the plaintiff's documents with his criminal defence lawyer. This lawyer reviewed the records with a view to using them in his client's favour at the criminal trial. At trial, the criminal defence lawyer relied on the documents' contents to cross-examine the plaintiff/complainant. There was an objection to this and the criminal trial was adjourned. The defendant/accused's civil defence lawyer then brought a motion seeking an after-the-fact declaration that sharing the plaintiff's civil productions to aid the criminal defence was proper. The court hearing the motion disagreed, and in a carefully reasoned decision, explained the process that needs to be followed where there are overlapping civil and criminal cases, and a party wishes to use documentary productions that originated from the civil case in the criminal case.

Although the decision centers around the interpretation of the deemed undertaking rule of confidentiality found at Rule 30.1 of the Ontario Rules of Civil Procedure, it likely has implications outside of Ontario given that this rule represents a codification of the common law's implied undertaking rule regarding the confidentiality of compelled oral and documentary discovery evidence, and that different jurisdictions have adopted similar rules to Ontario's Rule 30.1.

Acknowledging the issues were novel, the motions judge in SC v. NS concluded that the defendant/accused had breached the deemed undertaking of confidentiality when he used for his criminal defence the plaintiff's documentary productions from the civil case without first seeking directions from the court as to whether and how he could do so. Although there may be circumstances where such directions can be sought on an ex parte basis (i.e., without notice to the opposing party with the privacy interest in the records), this was not such a case. The plaintiff/complainant should have received notice of the defendant/accused's intentions with respect to using her highly private and personal records for his criminal defence.

While this decision has implications for the way criminal lawyers, both Crown attorneys and defence counsel, run their cases, it most directly affects how civil litigators practice. The judge who granted leave to appeal acknowledged the decision's "importance to the profession, as well as to the administration of justice generally", and described the core issue raised by the decision to be whether "pre-approval to use discovery evidence under one of the exceptions contained in [Rule 30.1] is or is not required": S.C. v. N.S., 2017 ONSC 2601 at para. 8.

The background to this case is important because I dare say it is one that occurs not infrequently, and thus, one that many practitioners should take precautions to navigate. In SC v. NS, the ex-boyfriend's civil and criminal defence lawyers formed the belief that the plaintiff's productions in the civil case contained information that was inconsistent with evidence she had given in the criminal proceeding. Assuming the documentary productions could be used to impeach the plaintiff/complainant in the course of her testimony at the criminal trial (impeachment is a recognized exception to the deemed undertaking rule, in that Rule 30.1 does not prohibit discovery evidence being used for this purpose), the civil defence lawyer emailed the plaintiff's productions to his criminal counterpart.

At the criminal trial, the accused's lawyer in turn relied on information in the plaintiff's medical records to cross-examine the plaintiff/complainant. When it became clear that the plaintiff/complainant's records from the civil case had been shared with criminal defence counsel, there was an objection and the criminal trial was adjourned. Civil defence counsel then brought a motion to the civil court to, in essence, have their conduct in sharing the plaintiff's productions with criminal defence counsel vindicated by way of a declaration that the deemed undertaking rule had not been breached, or alternatively, did not apply at all in the circumstances. The motion failed.

Rule 30.1 of the Ontario Rules of Civil Procedure operates to impose an undertaking on all parties to civil litigation. It is an undertaking to the court. Its breach is a serious matter, giving rise to sanctions that include contempt of court. The undertaking's purpose is to protect a civil litigant's privacy interests and encourage parties in civil lawsuits to be frank and forthcoming in the civil discovery process. This protection is the quid pro quo for a civil litigant being compelled to produce relevant documents and to submit to questioning under oath as part of the civil discovery process.

The motions judge in SC v. NS concluded that the act of one lawyer for a client sharing the opposing party's compelled discovery evidence – in this case, documents – with another lawyer representing the same client in another related proceeding constitutes prohibited "use" of the evidence. Were it otherwise, discovery productions could be shared widely and routinely with persons not involved in the civil case, and with impunity, thereby undermining the privacy of such documents and the purpose of the deemed undertaking rule which is to prevent the collateral use of confidential evidence and information.

Because of the competing rights and interests at play when there are documents from a civil proceeding that may be used to impeach a party in another proceeding, the motions judge in SC v. NS came down heavily in favour of the need for an anticipatory motion for directions to be brought before the party seeking to use the documents actually uses them. In this way, the court can give directions and fashion a fair process that balances the countervailing rights and interests. If both civil and criminal proceedings are before the same court, then a judge in either proceeding can hear the motion for directions. If not, as was the case in SC v. NS where the civil lawsuit was before the Ontario Superior Court of Justice and the criminal proceeding was before the Ontario Court of Justice, then the motion for directions should be brought before the Superior Court of Justice.

Importantly, the court in SC v. NS was not persuaded that a plaintiff's privacy interest in her medical records should give way to the "element of surprise" that criminal defence counsel argued was so important to the defence of accused clients. Indeed, the Criminal Code itself includes a comprehensive scheme for the defence to follow when, within the criminal context, it seeks access to private records of a complainant or a witness in a sexual assault case, and this includes notice to the person with the privacy interest in these records (see ss. 278.1 to 278.9 of the Criminal Code).

The decision in SC v. NS serves as an important warning to lawyers working on both sides of sexual assault cases, as these cases frequently have both civil and criminal dimensions to them. We have long appreciated that the Crown disclosure documents from a criminal proceeding cannot simply be shared with counsel in a subsequent civil case that is based on the same events and alleged wrongdoing. The screening process approved by the Ontario Court of Appeal in D. (P.) v. Wagg (2004), 71 O.R. (3d) 229 must be followed. Indeed, a whole team at the Ministry of the Attorney General of Ontario is in place to administer this process.

Now, there are also rules and a process that must be followed when documents are to move in the opposite direction – i.e., from a civil to a criminal proceeding. The criminal defence's desire to seek out and take advantage of inconsistencies or embarrassing information that may be contained in a plaintiff's medical or other private records that have had to be produced in a civil proceeding must yield to the civil justice system's rules for protecting the confidentiality that attaches to such records.

While we must wait to see what happens with the appeal, and whether the pre-approval procedure adopted by the motions judge is confirmed or modified, criminal and civil counsel need to be cautious how they treat productions when there is a multiplicity of legal proceedings arising from the same events. Using documents derived from one type of proceeding in another entails risk, especially when the documents are of a highly private and confidential nature. Clarification of the procedure to be followed when documents flow from the civil to the criminal side is overdue, and something lawyers can expect to see soon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Elizabeth K.P. Grace
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions