SEEKING PRODUCTION OF PROSECUTOR’S FILE FOR USE IN CIVIL PROCEEDING
It is not unusual for civil litigants to seek production of the Crown Prosecutor’s Brief in a related criminal matter, but there is a stringent process to follow: in other words, it is not producible just for the asking.
Often the Crown will consent to the release of the contents of their Crown Brief, on specific terms relating to how the documents can be used, but there will be times when there is an ongoing criminal matter, and in those instances the Crown typically objects, and the party or parties wanting the disclosure must apply to the court for this relief (which is colloquially known in Ontario as a “WAGG MOTION,” named after a historical court ruling that established the ground rules).
In this instance, the Wagg Motion was denied by the court. The seminal explanation for the refusal to have the Crown turn-over their brief was explained, in part, as follows:
“I find that the risks of jeopardizing an ongoing criminal prosecution far outweigh any potential benefit of production of these records in this civil action which is in the early stages. Revealing the Crown brief to witnesses can colour their memory of events and create an opportunity for an accused to allege that the witnesses’ evidence has been tailored to fit the evidence of other witnesses. Moreover, even where deliberate tailoring is not an issue, it is simply not possible to know what the witnesses’ evidence would have been had they not been exposed to the recollection of other witnesses. The reliability of a witness’s account can be undermined not only by deliberate collusion, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts.”
Joseph v. Debs, 2022 ONSC 837
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc837/2022onsc837.html