Written by Lincoln Caylor and Charlene Schafer
When there is a civil proceeding and criminal investigation running parallel, it is important for lawyers involved in the civil proceeding to act carefully, while at the same time cooperate with any ongoing police investigations. Lawyers (and plaintiff s/victims) should be mindful of protections afforded to defendants under the civil process who are also the subject of a criminal investigation. These protections include the statutory deemed undertaking rule or common law implied undertaking rule, the right to silence and the right to be free from self-incrimination under the Charter. In the context of the deemed undertaking rule, neither the lawyer, nor the plaintiff /victim would want to provide information to police that could be found to have been improper for fear of prejudicing an ongoing criminal investigation.
It is important to note that the granting and execution of Anton Piller orders may infringe on the right to silence, as there is a positive duty on the recipient of the order to disclose the whereabouts of relevant evidence to the lawyers executing the order. Conversely, those who are the subjects of a search warrant are not required to assist the police in locating and obtaining the evidence and may assert their right to silence. In both cases parties may assert privilege.
There are various types of information and evidence that are disclosed in the course of civil proceedings, which may be of use to government authorities in an ongoing or subsequent criminal investigation. These include (a) the plaintiff or victim's own documentary evidence; (b) statutorily compelled evidence during discovery (which is protected by the deemed undertaking rule); and (c) court-ordered evidence by way of injunctions, such as the granting of an Anton Piller order.
Section 5(1) of the Canada Evidence Act1 forbids witnesses from refusing to answer questions on the ground that the answer may tend to incriminate him or her, or may tend to establish his or her liability to a civil proceeding at the instance of the Crown or of any other person.
Section 9(1) of the Ontario Evidence Act2 states that a witness shall not be excused from answering any question which may tend to incriminate him or her.
The Implied Undertaking Rule
In Ontario, Rule 30.1.01 of the Rules of Civil Procedure (a Regulation to the Ontario Courts of Justice Act) deals with deemed undertakings. This Rule states that parties and their counsel undertake not to use evidence or information obtained during civil litigation, including during: documentary discovery; examination for discovery; inspection of property; medical examination; or examination for written discovery, for any purpose extraneous to the proceeding in which the evidence was obtained.
There are some exceptions to this Rule. Section 30.1.01(5) does not prohibit the use, for any purpose, of evidence: (a) that is fi led with the Court; or (b) given or referred to during a hearing.
A recent Supreme Court of Canada case, Juman v. Doucette,3 (“Juman”) raised the issue of whether statutorily compelled information obtained during the discovery process in contemplation of civil litigation could be either obtained by or disclosed to police in the investigation of a crime. In a unanimous decision, the Supreme Court held that although the public interest in getting at the truth in a civil proceeding and prosecuting crime generally outweighs any individual privacy interests, litigants in civil proceedings are entitled to some measure of protection in order to ensure that their right to silence and right against self-incrimination under the Canadian Charter of Rights and Freedoms are upheld.
The court in Juman laid out the exceptions to the common law implied undertaking rule, including: (a) situations subject to a legislative override; (b) the granting of leave on application by one of the parties if that party can successfully show on the balance of probabilities that allowing the information or documents to be used outside of the civil proceedings serves a superior public interest;4 (c) if the deponent has given contradictory testimony about the same matters in successive or different proceedings;5 or (d) if there exists a situation of immediate and serious danger to an identifiable group,6 a party may be justified in going directly to police without a court order.
Note that this was a British Columbia case, where, in contrast to Ontario, there is no statutory deemed undertaking rule. This is why the ruling is decided in the context of the common law implied undertaking rule and may therefore not be as relevant or applicable to jurisdictions like Ontario, that already have exceptions to the deemed undertaking rule statutorily defined.
Anton Piller Orders
An Anton Piller order is a court order which provides for the right to search premises and seize evidence without prior warning. These orders are used to prevent the destruction of incriminating evidence and thereby frustrate the plaintiff 's right to a fair trial.7 An Anton Piller order is an exceptional remedy and should only be granted in the clearest of circumstances.8 The onus is on the party seeking the order to satisfy the judge that such circumstances exist in their case.9
The court's jurisdiction to grant an Anton Piller injunction is grounded in the inherent jurisdiction of the court.10 The court's authority to grant an interlocutory injunction or mandatory order is set out in section 101 of the Courts of Justice Act,11 which allows such an order to be made “where it appears to a judge of the court to be just and convenient to do so.” The judge hearing the motion for an Anton Piller order must be satisfied that (1) a prima facie case is established; and (2) there is clear evidence of a real possibility that the defendant will destroy evidence.12
In the case of Ontario Realty Corporation v. P. Gabriele & Sons Limited et al.,13 Justice Farley explored the issue of whether section 8 of the Canadian Charter of Rights and Freedoms (i.e. the right against unreasonable search and seizure) is infringed when an Anton Piller order is granted and executed. Justice Farley ultimately dismissed the Charter challenge on the basis that the Anton Piller order is not a government action subject to the Charter and also on policy grounds that there is a very strong public interest in ensuring that the court process in civil cases is not frustrated by the suppression of evidence.
Justice Farley was careful to point out that an Anton Piller order is not a civil search warrant. Specifically, there is no authority granted by an Anton Piller order to demand entry to any location with the right and authority to force entry if that demand is not acceded to. Rather, an Anton Piller order allows a request for entry and that request may be denied, but the denier faces contempt proceedings for failure to give the permission that the court has ordered.
- R.S., c. E-10, s. 1.
- R.S.O. 1990, C. E-23.
-  S.C.J. No. 8.
- Ibid., at para 38.
- Ibid., at para 41.
- Ibid., at para. 40.
- Anton Piller K.G. v. Manufacturing Processes Limited et al.,  1 All E.R. 779.
- Casino Bus Services Inc. v. Krawec Estate,  O.J. No. 994, at para. 23.
- Ontario Realty Corp. v. P. Gabriele & Sons Ltd. (2001), 50 O.R. (3d) 539 (S.C.J.) [hereinafter referred to as “ORC”].
- R.S.O. 1990, c. C-43.
- Barbeau Limited et al. v. Crown Foods Services Equipment (1982), 36 O.R. (2d) 355 (S.C.J.), ORC, supra at note 4.
- ORC, supra at note 4.