Wong v. Antunes

2009 BCCA 278 Wong v. Antunes

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Wong v. Antunes, 2009 BCCA 278 Date: 20090618 Docket: CA36720 Between: Frank Low Fat Wong on his Own Behalf and as Personal Representative of the Estate of Stanley Wong and on Behalf of Sau Ying Wong and Lorna Wong Respondent (Plaintiff) And Paul George Antunes, Transportaction Lease Systems Inc., and Ju Ling Catherine Yen Respondents (Defendants) And The Attorney General of British Columbia Appellant (Respondent) And Insurance Corporation of British Columbia Respondent (Third Party) Before: The Honourable Mr. Justice Hall The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Bauman On appeal from: Supreme Court of British Columbia, December 19, 2008, (Wong v. Antunes, 2008 BCSC 1739, M065041) Counsel for the Appellant: A.K. Fraser N.H. Barnes Counsel for the Respondent, Frank Low Fat Wong: W.T. Morley Place and Date of Hearing: Vancouver, British Columbia April 29, 2009 Place and Date of Judgment: Vancouver, British Columbia June 18, 2009 Written Reasons by: The Honourable Madam Justice Kirkpatrick Concurred in by: The Honourable Mr. Justice Hall The Honourable Mr. Justice Bauman Reasons for Judgment of the Honourable Madam Justice Kirkpatrick: [1] This appeal raises the rare and interesting issue of the limits of document disclosure by the police in a civil case which has parallel criminal proceedings in which

disclosure has been made by the Crown to the accused who is also a defendant in the civil case. I. BACKGROUND A. Facts [2] Stanley Wong was struck and killed by a motor vehicle on 11 November 2005. The unidentified driver of the vehicle fled the scene. On 6 September 2006, the Vancouver Police Department ["VPD"] announced that, as a result of its investigation, it believed the defendant Paul George Antunes was the operator of the vehicle. He was charged with criminal negligence causing death. [3] On 27 January 2007, the plaintiff, Frank Low Fat Wong, Stanley Wong's father and personal legal representative, commenced an action on his own behalf and on behalf of Stanley Wong's mother and his common law spouse. Mr. Antunes and the third party Insurance Corporation of British Columbia denied Mr. Antunes was the driver of the vehicle that struck Stanley Wong. [4] In accordance with its disclosure obligations under R. v. Stinchcombe, [1991] 3 S.C.R. 326, [1992] 1 W.W.R. 97, 68 C.C.C. (3d) 1, the Crown provided the documentation assembled by the police in the course of its investigation, including witness statements and the results of DNA testing (the "VPD documents"). [5] In the civil action, Mr. Antunes has entered an appearance and delivered a statement of defence. He has, through his criminal defence counsel, delivered a list of documents that disclose no documents in his

possession or control, although he admits that he does have the VPD documents. [6] The practice in British Columbia is that the information contained in the so‑called "Stinchcombe package" is disclosed on the condition that the recipient undertakes not to disclose its contents for any collateral purpose. It was evidently in accordance with that practice that Mr. Antunes' counsel in the criminal proceedings refused to list the Stinchcombe package. Mr. Antunes' criminal trial began in February 2008, was adjourned to December 2008, and has now been adjourned to October 2009. [7] The civil trial was scheduled to begin on 23 March 2009. The trial was adjourned to 8 September 2009 to allow for the 60 days required for the filing of expert reports, including the DNA report contained in the VPD documents that the plaintiff hopes to obtain. B. The Chambers Application [8] After Mr. Antunes refused to produce the VPD documents, the plaintiff applied pursuant to Supreme Court Rule 26(11) for production by the VPD of all documents in its possession or control relating to the collision. The Attorney General was served with notice of the application as the minister responsible for the criminal prosecution of Mr. Antunes. The plaintiff's application specifically acknowledged that the order sought would be "on condition that the documents be produced subject to the implied undertaking of confidentiality governing production of documents in civil proceedings". In other words, the documents were for use in the civil proceedings only and for no other purpose. C. The Decision of the Chambers Judge [9] The reasons of the Chambers judge are indexed as 2008 BCSC 1739, and reported at [2008] B.C.J. No.

2490. The chambers judge was satisfied that the VPD documents were relevant and material to the civil action. He was also satisfied that the "evidence that cannot be obtained by the plaintiff from other sources available to him," given that Mr. Wong, "does not possess any of the investigative tools that were likely employed by the VPD in its attempts to identify the driver" (para. 45). [10] The chambers judge considered three factors in deciding whether the implied undertaking that attaches to Crown disclosure should be modified to permit disclosure to the plaintiff in a related civil action: relevance, availability of the documents from other sources, and the public interest. The balance of convenience implicit in the third factor was described as follows (at para. 43): The public interest in ensuring the conduct of a prosecution in a manner that is fair from the perspective of both the Crown and the defence must be balanced against the private interest of ensuring the capacity of a plaintiff to advance a bona fide and meritorious claim in a civil action. In other words, the balance of convenience must favour disclosure. As the Ontario Court of Appeal said in D.P. v. Wagg (2004), 239 D.L.R. (4th) 501, 71 O.R. (3d) 229, [2004] O.J. No. 2053, at para. 53: 53. ... 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. [11] Central to the chambers judge's reasoning was his view that, once the Crown disclosed the VPD documents to the accused, there was a "limited loss of privilege, and the introduction of another form of protection from widespread dissemination of the documents or information transmitted to the accused" (para. 37), by which I understand the chambers judge to mean the implied undertaking of confidentiality. [12] Ultimately, the chambers judge could find no reason why the accused should be in a position to know the police evidence concerning the evidence of the driver but the plaintiff should not. He ordered that: 1. the Vancouver Police Department shall produce to the Plaintiff a copy of any document in its possession that has been disclosed to the Defendant Antunes in criminal proceedings related to the motor vehicle action at issue in the proceedings herein, provided that the said document relates to the identity of the driver or the manner of operation of the vehicle, provided further that the Plaintiff and counsel on behalf of the Plaintiff undertake to use the documents and information in them solely for the purpose of conducting the civil proceedings herein

against the Defendant Antunes arising out of the death of Stanley Wong; 2. should the Vancouver Police Department object to producing a document the Vancouver Police Department or the Crown shall provide a list identifying the character of that document and specify the reason why production of the document, or any portion of the document, is not required by the terms of this ruling; 3. the Crown or the Vancouver Police Department shall apply to [the Chambers judge] for a ruling with respect to the requirement to produce any document on the list on or before January 31, 2009; 4. upon production of the document to Plaintiff's counsel, the Plaintiff and his counsel shall be bound not to use the documentation except for the purpose of conducting the civil action ... II. ISSUES ON APPEAL [13] The Attorney General appeals from the order on two grounds, which are formulated in his factum as: 1. The chambers judge erred in law when he held that disclosure of the Stinchcombe disclosure package to the accused in a criminal matter who is also a defendant in a civil matter arising out of the same facts constitutes a waiver by the Crown of any privilege that the Crown claims over the documents in that package.

2. The chambers judge erred in law when he failed to hold that communications between the police and Crown counsel for the purpose of a criminal prosecution, including the report to Crown counsel, are immune from production on the ground that disclosure would be contrary to the public interest. III. DISCUSSION [14] In my opinion, although the issues raised by the first ground of appeal are interesting and the subject of considerable judicial and academic debate, it is not necessary to decide those issues in order to dispose of this appeal. [15] Indeed, given the outcome of the appeal, which provides for an order that does incorporate the public interest immunity, I consider that it is preferable to consider litigation privilege, solicitor-client privilege, implied undertakings, and public interest immunity, if and when those issues arise in the context of specific or class documents which the Crown objects to producing in a particular case. [16] It must be said at the outset that the Attorney General does not object to the disclosure of documents relating to the investigation of the accident scene, the inspection of the vehicle in question, or the raw material used for the DNA analysis. As I understand the Attorney General's submission, he does object to the "work up" of that information in the Crown brief - including expert reports and witness statements - pending conclusion

of the criminal proceedings. More specifically, the Attorney General is concerned with the procedure, or methodology in place by which objections can be made to disclosure of these documents. [17] It is clear that the Attorney General's aim in bringing this appeal is to build on the practice developed some years ago whereby documents relevant to a civil action that are in the possession of the police may by consent be ordered to be produced by desk order. By a Practice Direction dated 17 October 1990, Esson C.J.B.C. encouraged the profession to expand the use of desk orders. When there are no parallel or on-going criminal investigations or prosecutions, the desk order is an efficient and cost effective means of obtaining relevant police documents. [18] The case at bar is complicated, first, by Mr. Antunes' refusal to even list the VPD documents as being in his possession and, second, by the Crown's concern that some of the documents or information may jeopardize the on-going criminal proceedings. [19] The chambers judge was alive to the problems associated with disclosure of the VPD documents. It appears that he intended to adopt the approach to disclosure approved by the Ontario Court of Appeal in D.P. v. Wagg (2004), 239 D.L.R. (4th) 501, 71 O.R. (3d) 229, 184 C.C.C. (3d) 321 ["Wagg" cited to D.L.R.]. [20] Wagg bears some resemblance to the case before us. It too concerned

the right of a plaintiff to disclosure and production of documents in the possession of the defendant that the defendant obtained as a result of the disclosure process in criminal proceedings brought against the defendant. In particular, the plaintiff was interested in obtaining statements given by the defendant to the police which the trial judge in the criminal proceedings had ruled as inadmissible because the statements were held to be obtained in violation of his Charter rights. [21] The Ontario Court of Appeal ultimately endorsed the screening process formulated in the Divisional Court, holding, at para. 48-49: 48 Like the Divisional Court, I can see no practical way of protecting the interests discussed by that court and by the House of Lords in Taylor without giving the bodies responsible for creating the disclosure, the Crown and the police, notice that production is sought. Further, where the Crown or police resist production the court must be the final arbiter. 49 I do not think that the various interests will be protected because of the implied undertaking rule in Rule 30.1. The fact that civil counsel obtaining production is bound not to use the information for a collateral purpose may be little comfort for persons who once again find their privacy invaded, this time in civil rather than criminal proceedings. Further, the Stinchcombe obligation on the police and

Crown is very broad. Subject to privilege the Crown must disclose all relevant information. If there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, the information must be disclosed. Crown counsel are urged in Stinchcombe at p. 339 to err on the side of inclusion and refuse to disclose only that which is clearly irrelevant. The courts ought not to apply the discovery rules in civil cases in a way that could have an unintended chilling effect on Crown counsel's disclosure obligations. [22] The screening mechanism devised by the Divisional Court was summarized (and endorsed) by the Court of Appeal as follows, at para. 17: · the party in possession or control of the Crown brief must disclose its existence in the party's affidavit of documents and describe in general terms the nature of its contents; · the party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced; · the judge hearing the motion for production will consider

whether some of the documents are subject to privilege or public interest immunity and generally whether "there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice though full access of litigants to relevant information" (para. 51). [23] The Attorney General identifies a number of practical problems created by the impugned order. The Stinchcombe package is assembled by the Crown, not the VPD. The order, as it currently reads, requires the VPD to produce documents, despite the fact that it will not know whether these documents were part of the Stinchcombe package. More importantly, the Attorney General maintains it is cumbersome in that it contemplates all documents being produced, subject to the police or Crown specifying why a particular document is not required to be produced. Further, the order contemplates that the Crown must assert public interest immunity on a document by document basis. The difficulty posed by effectively ordering disclosure of the Stinchcombe package is that it fails to recognize that the disclosure under Stinchcombe serves a different purpose than disclosure in the civil context, and that to meld the two is an unfortunate development in the law. Further, by failing to incorporate the public interest immunity claimed by the Crown in the

order, it creates opportunities for unforeseen negative consequences. [24] The preferable alternative, according to the Attorney General, is for the making of a desk order which recognizes the public interest in maintaining the confidentiality of police -- Crown communications as a class, and leaving the parties with liberty to apply as to whether particular documents, or the whole class, should be disclosed in a particular case. [25] In my opinion, the mischief identified by the Attorney General in the application of the impugned order, namely unfortunate unforeseen consequences that may impair the criminal proceedings, can be rectified by the form of order suggested by the Attorney General, which reads as follows: ON THE APPLICATION of the [party], without a hearing and by consent; THIS COURT ORDERS THAT: 1. the [Chief Constable of municipal police force] [Officer in Charge or the Non-Commissioned Officer in Charge of the location Detachment of the Royal Canadian Mounted Police], or his delegate ("the Police") be authorized and directed to, within 35 days of receipt of a copy of this Order, find all documents as defined in the Supreme Court Rules, including all handwritten notes of all investigating officers, in the possession or control of the Police relating to [incident] ("the Incident") and in particular file number [file number]; 2. the Police shall examine the said

documents when found, and determine which documents or portions of documents may not be produced because they are: (a) any correspondence or communications between the Police and Crown Counsel, or between the Police and solicitors advising them, for the purpose of giving or receiving legal advice; (b) documents which it would be contrary to the public interest to produce, and in particular documents which if disclosed: (i) could reveal correspondence or communications between the Police and Crown Counsel other than those referred to in subparagraph (a); (ii) could prejudice the conduct of a criminal prosecution which is anticipated or has been commenced but not finally concluded, where the dominant purpose for the creation of the documents is that prosecution (not including reports, photographs, videotapes or other records of or relating to the Incident created by or for the Police on their attendance at the scene of the Incident or as a contemporaneous record of such attendance); (iii) could harm an ongoing statutory investigation or ongoing internal Police investigation; (iv) could reveal the identity of a confidential human source or compromises the safety or security of the source; (v) could reveal sensitive police investigation techniques; or (vi) could harm international relations, national defence or security or federal provincial relations; (c) protected from production

by the Youth Criminal Justice Act (Canada), or by any other applicable statute; 3. the Police shall copy the documents which satisfy the criteria for production referred to in paragraph 2 or such portions of the documents as satisfy the criteria for production referred to in paragraph 2; 4. the Police shall make the copies available to the solicitor for the Applicant for inspection or collection at [address]; 5. the solicitor for the Applicant shall forthwith enter this Order and deliver a copy to the Police and the solicitors for the parties herein; 6. any reasonable costs incurred by the Police for the retrieval, production, inspection, copying and delivery of the said documents shall be paid forthwith by the solicitor for the party requesting such retrieval, production, inspection and delivery of the said records; 7. within seven days after receipt by the solicitor for the Applicant of the said documents from the Police pursuant to this Order, such solicitor shall provide each of the solicitors for the parties herein with a copy thereof and the solicitors for the parties herein shall be at liberty to examine the copies of the documents received by the solicitor for the Applicant from the Police; 8. any party, the Police and the Attorney General of British Columbia, shall have liberty to apply to the Court to determine which, if any, documents are required to be produced

pursuant to this order. [26] In my opinion, the form of order suggested by the Attorney General balances the plaintiff's need to obtain information in the police file with the Crown's need to preserve the integrity of the criminal prosecution. Further, it permits, in the appropriate case, full debate on the various privilege issues that may arise. IV. DISPOSITION [27] It follows that I would allow the appeal and direct that an order in the form referred to above be entered. "The Honourable Madam Justice Kirkpatrick" I agree: "The Honourable Mr. Justice Hall" I agree: "The Honourable Mr. Justice Bauman"