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Gabrielle Giroday

Editorial: Privacy reigns

Law Times reports this week that an Ontario Superior Court judge determined a rule was breached when two Toronto lawyers exchanged private records about a sexual assault complainant with no notice to a court, the woman or her counsel.

As the story by Shannon Kari notes, Justice Wendy Matheson said it’s the first case in Ontario to interpret the “mechanics” of the impeachment exception in the Rules of Civil Procedure for the use of compelled documents from one case in another legal proceeding.

“The plaintiff/complainant’s documentary productions comprised hundreds of pages of documents. They include extensive private information,” said the ruling by Matheson.

“They include medical records from four different health providers. They include counselling records. The productions include medical test results and photographs. The produ

ctions also include academic records with grades.”

The ruling itself contains important implications for lawyers across Ontario. In her ruling, Matheson says it is “necessary that parties wishing to proceed under the impeachment exception seek directions from this Court regarding what steps are required in their particular circumstances.”

“The moving party argued strenuously that notice would defeat the possible impeachment in this case. I understand that the defendant would prefer the element of surprise,” says the ruling.

“But even in the criminal context, the element of surprise is not available to the defendant/accused when seeking access to this type of record.”

While the case centres on allegations of sexual assault — where concerns about privacy regarding complainants are particularly paramount — it has wider effects for anyone who handles sensitive information.

The proliferation of records in a digital age, and concerns about protection of information contained therein, will only intensify as technology quickens.

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It's unknown how widely police in Ontario utilize controversial surveillance techniques that can capture private data from non-targets in criminal investigations. Do you think there should be formal requirements to release this information?