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Rule broken when records exchanged: judge

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|Written By Shannon Kari

An Ontario Superior Court judge has found that the “deemed undertaking” rule was breached when two Toronto lawyers exchanged hundreds of pages of private records about a sexual assault complainant with no notice to a court, the woman or her counsel.

Joanna Birenbaum says ‘sexual assault complainants are going to have to think very carefully about the timing of production’ of records in a civil case when there is a parallel criminal proceeding.Photo: Robin Kuniski

Justice Wendy Matheson made the finding in a decision that she said is the first case in the province to interpret the “mechanics” of the impeachment exception in the Rules of Civil Procedure when it comes to the use of compelled documents from one case in another legal proceeding.

“The Rules of Civil Procedure have acknowledged that plaintiffs remain entitled to some measure of protection of their privacy and are entitled to limitations on the use of their discovery evidence outside the proceedings for which the discovery was compelled,” wrote Matheson in her ruling, S.C. v N.S., issued on Jan. 16.

The complainant is alleging that she was sexually assaulted by N.S. in 2014 on two occasions, in Toronto and in Waterloo, Ont. N.S. was charged criminally in both cases.

The defendant was acquitted in Waterloo.

The Toronto criminal trial has been adjourned until next month.

It is a Youth Criminal Justice Act proceeding, since the defendant was less than 18 years old at the time of the alleged incidents.

The complainant, a young woman, is also seeking $1.5 million in damages against the defendant and the University of Waterloo, alleging that the university and its employees failed to provide proper security.

Any counsel seeking to make use of the impeachment exception within the deemed undertaking rule must first seek directions from a court and cannot act unilaterally, said Matheson.

“The moving party [defendant’s civil lawyer] did not do so and therefore failed to deploy the exception properly, breaching the undertaking,” she wrote.

The judge rejected arguments by lawyers for the defendant that privacy rights are given up by a plaintiff once she launches a civil action.

“If that choice defeated all privacy interests, the deemed undertaking would not exist,” stated the Superior Court judge.

Sari Feferman, who is acting for the complainant in the civil proceeding, says it is an important ruling in this area.

“Justice Matheson has found there are still privacy considerations even when information is compelled,” says Feferman, a lawyer at Linden & Associates in Toronto.

The actions of the lawyers for the defendant are concerning because they appear to be an attempt to do an “end run” on privacy protections in the Criminal Code for sexual assault complainants, says Joanna Birenbaum, a Toronto lawyer who regularly acts for plaintiffs in this area in civil and administrative proceedings. Birenbaum was not involved in the case.

“Sexual assault complainants are going to have to think very carefully about the timing of production,” says Birenbaum, when there is also a parallel criminal proceeding.

The two lawyers acting for the defendant are Chris Kinnear Hunter, an associate at Lenczner Slaght LLP, in the civil proceeding and Eric Neubauer, a sole practitioner based at Simcoe Chambers in Toronto, in the criminal case.

They did not respond to requests for comment by Law Times.

Will McDowell, a senior partner at who acted for the defendant in the hearing before Matheson, says an appeal of the Superior Court ruling will be filed.

As a result, he says he cannot provide further comment.

The court heard that the documents produced by the young woman as part of the civil discovery process included medical and counselling records.

“The level of private information in these records is very high,” wrote Matheson.

In the spring of 2016, on the eve of pre-trial motions in the Toronto criminal trial, there were discussions between Hunter and Neubauer about the information within the woman’s productions. Hunter also sent a copy by email of all of the documents to Neubauer.

An excerpt from Rule 30.1.01 was included in the email and Hunter wrote that this provision permitted the use of the documents for impeachment purposes in another proceeding.

This view was rejected by Matheson and she concluded that the impeachment exception to the deemed undertaking rule does not explicitly authorize what was done in this case or supersede other legal restrictions that may apply.

The fact that the private information had been forwarded was not discovered until October 2016 when Neubauer cross-examined the complainant on information in her medical records. At that point, the criminal trial was adjourned.

The requirement to seek directions from a court first is significant, says Feferman.

“The concern is that without judicial notice, plaintiffs will have no idea that these documents have been shared and shared without consent,” Feferman says.

The Criminal Code has strict rules related to the test that a defendant must meet for disclosure of private records of a complainant in a sexual assault trial, which were upheld in 1999 in R v. Mills by the Supreme Court.

“The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in the private records of complainants and witnesses,” wrote Justices Beverley McLachlin and Frank Iacobucci for the majority in Mills.

The ruling by Matheson is important, yet privacy concerns remain for sexual assault complainants, says Birenbaum.

The judge suggested it would be appropriate for a defendant who learns of the details in the productions to convey what is in them orally to their defence counsel.

“What troubles me is that it is the information that is to be protected, not the piece of paper,” says Birenbaum.

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