Doucette v. Wee Watch Day Care Systems Inc. and the status of information obtained at discovery.
This November, the Supreme Court of Canada (“SCC”) will hear Doucette (Litigation Guardian of) v Wee Watch Day Care Systems Inc, an appeal from the B.C. Court of Appeal that can be found at  BCCA 262 [Doucette]. Doucette will provide the SCC with the opportunity to weigh in on whether the police can legitimately use incriminating evidence obtained in the discovery phase of civil actions for investigatory purposes.
On November 19, 2001, Jade Doucette (then an infant) suffered a seizure, which in turn resulted in brain injuries. At the time of the accident, she was under the care of Suzette McKenzie, a childcare worker employed by the defendant, Hesson Thomson Child Care Society – East, which operated its business under the name Wee Watch Vancouver Private Home Day Care.
The Vancouver Police Department commenced a criminal investigation concerning Jade Doucette’s injuries, questioning Ms. McKenzie’s in May of 2004. To date, it does not appear that she has been arrested. However, alongside the potential of criminal charges, Ms. McKenzie does face a lawsuit by Jade Doucette (with her father acting as litigation guardian), alleging negligence resulting in her injuries.
The Opposing Judgments of the B.C. Supreme Court and the B.C. Court of Appeal
At trial, the B.C. Supreme Court heard a motion brought by the B.C. Attorney General seeking to vary the implied undertaking of confidentiality so as to allow disclosure of Ms. McKenzie’s discovery transcript to the police. Shaw J. denied the B.C. Attorney General’s motion, making the following order:
I declare that the Attorney General of British Columbia and the Vancouver Police Department and their servants and agents are under a legal obligation not to cause any of the parties to this action or their solicitors to violate their undertaking in respect of the proposed examinations for discovery of Ms. McKenzie in these proceedings, without the consent of Ms. McKenzie or without further order of this court (para 66).
Shaw J.’s order, however, was set aside in the B.C. Court of Appeal. Writing for a unanimous court, Kirkpatrick J.A. held that “the implied undertaking of confidentiality in the civil discovery process does not preclude the parties to this action from disclosing Ms. McKenzie’s discovery evidence to the police in good faith for the purpose of assisting the police in their criminal investigation.” (para 88). The difference of opinion in the two courts is reducible to contradictory findings on each of the two broad issues in the case: (1) the scope of the implied undertaking not to use evidence obtained at discovery for purposes other then the action in which the discovery is situated, and (2) the issue of whether or not constitutional issues, (most notably concerning s. 7) were engaged in the civil trial.
The Implied Undertaking Issue
While both courts identified the existence of an implied undertaking not to disclose information obtained by way of discovery, the B.C. Supreme Court adopted a very broad account, as compared with the much narrower definition endorsed by the B.C. Court of Appeal. “There is no doubt” reasoned Shaw J. of the B.C. Supreme Court, “that the law implies an undertaking which applies to parties to civil litigation and their lawyers to use discovery evidence strictly for the purposes of the court case and not for other purposes” (para 11). At issue for Shaw J. was whether or not such an undertaking applied to the police in a criminal law context. In his view, derogating from the implied undertaking of confidentiality was acceptable only in “the rare occurrence of immediate and serious danger” (para 29). Shaw J. thus characterized the B.C. Attorney General’s motion to have the implied undertaking varied so as to permit disclosure of evidence to the Vancouver Police Department as a request to “authorize a ‘fishing expedition’ to see whether there might be some evidence in as-yet non-existent discovery transcripts which might shed light upon their investigation” (para 33).
Kirkpatrick J.A., on the other hand, reached the following conclusion about the implied undertaking of confidentiality in examinations for discovery, drawing on Hunt v Atlas Turner Inc (1995), 4. BCLR (3d) 110 (BCCA):
I conclude that the implied undertaking of confidentiality rule is as stated in Hunt: a party obtaining production of documents or transcriptions of oral examination of discovery is under a general obligation, in most cases, to keep such documents confidential. A party seeking to use the discovery evidence other then in the proceedings in which it is produced must obtain 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).
Kirkpatrick J.A. here, is concerned primarily with the “use to whcih the evidence is to be made.” A bona fide disclosure of information, in other words, is not caught by the implied undertaking not to disclose information. With this in mind, Kirkpatrick J.A. continued, “a non-party, such as the police, who obtains the discovery evidence by lawful means (such as by search warrant) is not prevented from using the evidence to further an investigation” (para 57).
The Constitutional Issue
Although Sections 11(c), (which guarantees the right not to be compelled to be a witness against oneself), and 13, (relating to self incrimination) are also arguably at play, both the B.C. Supreme Court and Court of Appeal devoted most of their attention to the implications of s. 7 (life, liberty and security of the person) of the Charter. In Shaw J.’s view, the disclosure of incriminating evidence obtained through the discovery process engages s. 7 because such evidence is tantamount to statutorily compelled testimony. The source of such compulsion lies in the court’s power to punish by way of imprisonment or fine. Therefore, requiring Ms. McKenzie to submit to discovery engages her liberty interest under s. 7 of the Charter (para 47). In R v S(RJ),  1 SCR 451 [R v S(RJ)], in which Iacobucci J. set out a two-part analysis for evaluating “compulsorily required testimony” in the context of s. 7 of the Charter:
First it can be determined whether there exists a real or imminent deprivation of an interest recognized in the section. Second, the relevant principles of fundamental justice can be isolated, and the deprivation can be measured against the se principles to determine whether s. 7 has been infringed.
Iacobucci J. then arrived at two principles of fundamental justice, firstly, the principle against self incrimination, and second, the principle that evidence of the truth should be available to the courts (para 108). The present case, Shaw J. noted, was characterized by a tension between these two principles. “On the one hand” he explained, “Ms. McKenzie will be forced to make admissions that may point to criminal activity. On the other hand, her discovery evidence is an important part of the search for the truth in the civil case” (para 50). Bearing these considerations in mind, Shaw J. concluded that “to allow the state to have free access to discovery transcripts, which by law are to be kept confidential, would upset the balance established by the discovery rules. In effect, this would destroy the confidentiality which the undertaking rules are meant to protect and would undermine the full and frank disclosure in the discovery process” (para 50).
Kirkpatrick J.A. took issue with Shaw J.’s finding in this regard. Using the language of R v S(RJ), pointing to the fact that to date, no charges have been laid against Ms. McKenzie, she held that “at this stage of the proceedings it can hardly be said that Ms. McKenzie is exposed to an imminent deprivation of her right to life, liberty and security of the person” (para 71). Moreover, contra the policy consideration invoked by Shaw J. to the effect that allowing the state to access discovery transcripts would undermine both the confidentiality and the frankness of the discovery process, Kirkpatrick J.A. posited that if the police in the present case were denied access to the discovery transcripts on the basis of a s. 7 of argument, “every party who is obliged to comply with the [B.C] Rules of Court would be permitted to invoke s. 7 of the Charter.” “Such a result” Kirkpatrick J.A. concluded, “would cripple the conduct of civil litigation in this province” (para 71).
Policy Debates: Due Process v. Crime Control
The different approaches each court takes to both the implied undertaking and the constitutional issues seem to be animated by competing policy interests that roughly approximate Herbert Packer’s old distinction between due process and crime control. On one hand, Shaw J. of the B.C. Supreme Court seems principally concerned about the potential that an examination for discovery that generates incriminating information might operate as a back door to evidence that is otherwise inaccessible to the police. Accordingly, he offers a very broad account of the implied undertaking of confidentiality, and furthermore finds a violation of liberty interest under s. 7 of the Charter in the use of such information by the police for investigatory purposes.
On the other hand, Kirkpatrick J.A. of the B.C. Court of the Appeal seems preoccupied with preventing criminals from hiding behind implied undertakings and the Charter. As such, her account of implied undertakings is a narrow one, and s. 7 of the Charter is effectively a reactive remedy: it is to be engaged at the potential criminal trial, i.e. after the bulk of the police investigation has already occurred. It will be interesting to see which approach the SCC takes.