Juman v Doucette: Implied Undertaking of Confidentiality in Discovery Testimony

Today the Supreme Court of Canada (“SCC”) released its judgment in Juman v Doucette, [2008] 1 SCR 157.
The background of this case involves a negligence claim against a daycare worker, Suzette Juman, which was brought on behalf of a 16-month-old child who suffered a seizure while under her care. It was later found that the child had suffered a brain injury. Police investigation of this incident has been underway for several years and is still ongoing. At one point Ms. Juman was arrested and questioned but was released shortly thereafter.

Prior to Ms. Juman’s examination for discovery in the civil action, she brought an interlocutory motion seeking an order prohibiting the other parties from providing transcripts of discovery to the authorities. The British Columbia (“BC”) Attorney General brought a cross-motion seeking an order permitting the disclosure of the transcripts to police.

Thereafter, Ms. Juman attended her examination for discovery and states that she answered all appropriate questions put to her. She claimed the protection of the Canada Evidence Act, RSC 1985, c C-5, the British Columbia Evidence Act, [RSBC 1996] c 124, and the Canadian Charter of Rights and FreedomsPart I of the Constitution Act, 1982 [“Charter“]. The parties to the civil action settled the claim in 2006 and the discovery testimony was never entered into evidence at trial or heard in court.

In ruling on the interlocutory motion, the chambers judge held that there was an implied undertaking that parties to an action solely use evidence obtained at discovery for the purpose of the proceeding and not for any other collateral purposes, even to provide police with evidence of criminal acts. Since such evidence could range from mere suspicions to explicit admissions of crime, from minor to serious misconduct, it would best be left in the discretion of the courts to determine whether an exemption to the undertaking was warranted. Further, the chambers judge held that this evidence could not be seized by police under a search warrant.

The BC Court of Appeal allowed the appeal and overturned the chambers judge’s ruling. They held that the implied undertaking of confidentially in discovery testimony did not apply to evidence of criminal conduct.

In this decision, SCC confirmed that there is an implied undertaking by parties in a civil litigation to keep information obtained in pre-trial discoveries confidential. A party to the proceeding may not use this evidence for any other purpose than that required for the conduct of the litigation and may not share it with others outside of this purpose without a court order. This is so even when a party believes the discovery evidence reveals criminal misconduct on the part of the other party. The SCC’s concern, particularly in the criminal context, is that discovery testimony is statutorily compelled and to allow disclosure of this evidence to police undermined the right to silence and protection against self-imcrimination granted under criminal law. The court retains the discretionary power to grant an exemption or variation of this undertaking if there is a public interest in disclosure that outweights the interests of privacy, efficient conduct of civil litigation and protection against self-incrimination.

The SCC further held that the implied undertaking only applies to the parties to the action and not to other parties. The police may still obtain this evidence through usual procedures, such as subpoena duces tecum or a search warrant under the Criminal Code. Further, in situations where there is a serious and immediate danger, a party may be justified in going directly to the police without the need for a court order. Interestingly, the SCC declined to consider Charter arguments in this case, merely stating in passing that such issues would only arise in the event that evidence obtained from discovery were to be used in the criminal trial.

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