“M.H. seeks disclosure from R.B. — specifically a copy of the Crown brief with regard to the alleged assault. Counsel for R.B. has received a copy of the Crown brief.
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R.B. opposes this motion for disclosure.
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The Crown Attorney was not served with M.H.’s motion but, by way of affidavit filed by R.B., it is clear that the Crown attorney opposes disclosure of the Crown brief.
I accept the reasoning set out in the cases submitted by counsel for M.H.. See D.P. v. Wagg, 2001 CanLII 28033, 52 O.R. (3d) 625, 8 C.P.C. (5th) 252, 81 C.R.R. (2d) 182, [2001] O.J. No. 595, 2001 CarswellOnt 546 (Ont. S.C.); Fullowka v. Royal Oak Mines Inc., 1998 CanLII 5724, [1998] N.W.T.R. 42, [1998] N.W.T.J. No. 11, 1998 CarswellNWT 4 (N.W.T.S.C.); and, Consolidated NBS Inc. v. Price Waterhouse (1994), 1994 CanLII 10979 (ON SCDC), 69 O.A.C. 236, 111 D.L.R. (4th) 656, 3 C.C.L.S. 186, 24 C.P.C. (3d) 185, [1994] O.J. No. 263, 1994 CarswellOnt 494 (Ont. Div. Ct.). These cases form the basis of my decision on the motion for disclosure.
The use of material, such as the Crown brief, in civil cases does not constitute an ulterior or collateral use of the material. Disclosure is not being sought for use against the Crown. There is no solicitor-and-client privilege that can be claimed by R.B. since the Crown brief was not prepared by his counsel for use in this proceeding.
It is apparently the policy of the Crown attorney’s office to provide disclosure to an accused, subject to certain conditions. Logically, the imposition of these conditions, as a general policy, is contrary to the Crown’s own disclosure obligations in criminal cases. See paragraphs [13]-[16] of Fullowka v. Royal Oak Mines, supra.
There is no principle against self-incrimination in civil proceedings. Litigants are required to make full disclosure and to seek out relevant documents for production.
In Cook v. Ip, 1985 CanLII 163, 52 O.R. (2d) 289, 11 O.A.C. 171, 22 D.L.R. (4th) 1, 5 C.P.C. (2d) 81, [1985] O.J. No. 2653, 1985 CarswellOnt 586 (Ont. C.A.), Appeal Justice Peter D. Cory, as he then was, stated:
| There can be no doubt that it is in the public interest to ensure that all relevant evidence is available to the court. This is essential if justice is to be done between the parties.” |