Wagg Motions: Reforms Needed To Stop Delays And Unnecessary Costs When Accessing Criminal Records For Civil Sexual Assault Proceedings
A question that often arises in civil sexual assault proceedings is how to gain access to evidence collected for the purpose of a related criminal proceeding.
A complainant in a criminal proceeding does not have a right to access any evidence from that proceeding, aside from evidence filed with the court and any records containing their personal information (for example, a copy of their statement to police). This means that sometimes critical evidence initially collected by police, such as DNA evidence or statements made by the accused or others, cannot be easily accessed by those pursuing justice through civil litigation.
“WAGG MOTION”
Instead, in Ontario a formal court proceeding called a “Wagg motion” (brought pursuant to Rule 30.10.10 of the Ontario Rules of Civil Procedure) must be initiated by the plaintiff. The name “Wagg” is derived from the leading 2004 Ontario Court of Appeal decision in D.P. v Wagg.
In Wagg, the defendant faced criminal charges for sexually assaulting his gynecological patient, identified as D.P. Subsequently, D.P. filed a civil lawsuit against her doctor for sexual assault. During the civil proceedings, D.P. requested the defendant to disclose the contents of the Crown Brief, which had been provided to him during the criminal case. The defendant declined to do so. Consequently, the plaintiff filed a motion to compel disclosure of the Crown Brief's contents.
Ultimately, the Court of Appeal agreed with the screening process outlined by the Divisional Court for disclosure of the Crown Brief. The Crown Brief shall only be produced after (1) relevant state agencies have evaluated the public interest implications of releasing the material, and (2) either a court order or the consent of all parties has been obtained.
While these motions are frequently resolved by a court order on consent, it can take many months, if not years, to do so. This is because the following steps must be taken prior to a hearing of the Wagg motion:
The plaintiff (or defendant) must initiate the motion by filing a Notice of Motion and serving it on those non-parties who are in possession or control of the Crown Brief and related documents. In Ontario, this typically includes the Ministry of the Attorney General and the police service involved in the investigation of the criminal matter. The opposing side to the civil claim must also be notified of the motion.
The parties in possession or control of the Crown Brief and related documents must then disclose the Brief’s existence and describe, in general terms, the nature of its contents. Currently in Ontario, notice of a Wagg motion typically prompts the Ministry of the Attorney General to send a form letter to the moving party acknowledging the motion and advising that it will require an adjournment of the motion in order to review the relevant materials. This process often takes in excess of six months due to a backlog of similar requests. Once the screening process has been completed, the Ministry of the Attorney General usually sends a letter to the parties and non-parties outlining the materials in its possession and which materials it consents to produce.
Next, the parties and non-parties will either agree to an order on consent for production of the materials, or the motion will be contested. For example, the plaintiff may take issue with the Ministry of the Attorney General not producing certain documents and request the court order it to do so. In that case, the judge hearing the motion will consider whether the documents are subject to privilege or public interest immunity.
This process is not only subject to administrative delays on the part of non-party record holders, but also encounters the usual delays with obtaining a motion date due to court backlogs. These delays can be particularly detrimental to survivors of sexual assault pursuing justice through civil litigation, who have often already waited several years, if not decades, to bring their civil claims for compensation (whether due to an ongoing criminal proceeding, psychological trauma, or other reasons). Not only can these motions cause significant delays, but they also result in additional costs to the moving party and to the public due to the involvement of various government services and the court.
SIGNIFICANT DELAY AND EXTRA COSTS
Given the significant delay and extra costs caused by having to bring Wagg motions, which are often eventually resolved on consent in any event, the process for obtaining a Crown Brief and similar materials is long overdue for reform. In my view, there should be a specialized, streamlined process for such requests that does not require court involvement, similar to a Freedom of Information request.
This process could be legislated to address privacy and other concerns (including so as not to violate the Freedom of Information and Protection of Privacy Act through the disclosure of personal information). The Ministry of the Attorney General and police services could then negotiate the disclosure of the Crown Brief and similar materials with parties to litigation, so long as the parties undertake not to use those materials for any other purpose (similar to the deemed undertaking rule, which provides that evidence obtained through litigation cannot be used for any other purpose, and imposes potentially serious penalties if it is, including contempt of court). Such an agreement would provide protection for the privacy interests of both parties and non-parties to litigation, as well as address privacy concerns our justice system may have in disclosing the contents of a Crown Brief.
Of course, there will be some cases that are not easily addressed by this more streamlined process and will require court involvement, but in most cases, this transformation would be of great benefit, particularly to survivors.
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