It is an important principle that a person receiving disclosure in the course of an investigation or regulatory proceeding cannot use that disclosure for other purposes. The rule encourages witnesses to be forthcoming and candid during investigations. It also reduces the chance that witnesses will be harassed. There is a limited exception to this rule where another use of the disclosure, say in other proceedings, is necessary in the interests of justice.
In Deveaux v. Cornwall Police Services, 2024 ONSC 6983 (CanLII), a Divisional Court Judge questioned the propriety of a rigorous application of the principle in the circumstances. The facts are complex but in brief, Deveaux was charged criminally with disturbing the peace. He obtained disclosure of interviews with police officers carried out by an independent body, the Special Investigations Unit (SIU). Just before he was to cross-examine a police officer in the criminal trial, the Crown withdrew the charges against him. Deveaux, who is self-represented, re-instituted a complaint about the police (his initial complaint had been closed at an early stage) to the Law Enforcement Complaints Agency, and also initiated civil proceedings against the police and the Crown. The police and the Crown pursued an aggressive litigation strategy. Deveaux insists that if he obtains permission to use the interviews of the police that were obtained through an O’Connor motion during the criminal trial, he will be able to establish that they lied to the SIU and in court during his trial.
In a procedural step in relation to whether the investigation of his complaint should be suspended while the other proceedings were underway, the Court commented:
I obviously have no idea at this stage whether there is truth to Mr. Deveaux’s complaints. But someone among the government respondents should know. Watching a self-represented party try to understand and valiantly battle the procedural complexities thrown up by the phalanx of legal talent being brought to bear by government leads me to wonder how someone who truly has a provable claim can be expected to ever access civil justice.
I am not sure I understand the war in which this proceeding is just one battle. Shouldn’t our police services be transparent and accountable to the public whom they serve? Are there documents or recordings that people know will prove the truth of the claims one way or the other? Is there a public interest in having them produced to answer the questions raised in these proceedings? If Mr. Deveaux’s allegations are not true, shouldn’t those involved be publicly exonerated? If they are true, shouldn’t those involved be accountable? In whose interest is requiring motion after motion after motion and three or more different legal proceedings to access evidence that will resolve an issue about alleged police misconduct pro or con? Who can afford the battles let alone the war of attrition being waged?
I can only express the hope that if there is a lawyer who knows the truth of the allegations, that he or she will lead the clients to a fair outcome and not simply make the process impenetrable and inaccessible. Our system of justice is built upon the principle that lawyers are duty-bound to ensure that all parties receive a fair hearing. They are not just champions for the rich and strong. See: Law Society of Ontario, Rules of Professional Conduct, Rule 5.1-1: The lawyer’s duty to fearlessly raise every issue for their [client] is to be performed, “in a way that promotes the parties’ right to a fair hearing in which justice can be done.”
Regulators also need to exercise judgment as to when they should insist on the strict application of a principle and when they should facilitate a more transparent approach.