Evidence – Exclusion of Evidence in Criminal Proceedings – Charter Rights – Discovery of Documents – Photographs
Kathryn Kirkpatrick for the Defendants Larry Burns, Edward Gies and Halton Regional Police Services Board

The Plaintiffs in this civil case applied to exclude certain photographs from evidence. The Defendants applied to have the Plaintiffs re-attend at examinations for discovery to answer questions about those same photographs. The photographs in issue had been developed at Blacks Photography, one of the Defendants, and showed a significant number of marijuana plants. Blacks had disclosed the photos to the police and drug charges had been laid. However, the charges were withdrawn after a ruling in the criminal proceeding that seizure of the photos had been contrary to the Plaintiffs' Charter rights, and the Plaintiffs then brought an action for damages against Blacks and the police. The Plaintiffs argued that because the photos had been excluded from the criminal proceedings they should similarly be excluded from the civil proceedings despite their relevance.

The court noted that in determining whether documents that have been excluded in a criminal case are admissible in a subsequent related civil proceeding, it must have regard to all the circumstances of the case to determine whether admission of the evidence would bring the administration of justice into disrepute. On the facts of this case, it was important that the Plaintiffs had brought the civil proceeding based on the very photographs in issue. Therefore, the court ordered the photographs be produced. The court also rejected the Plaintiffs' allegation that the photographs were privileged, saying that any privilege that attached (which it found was doubtful in any event) had been waived when the Plaintiffs chose to commence the action. The court made clear that it was ruling on the production issue only; the admissibility of the photos at trial was explicitly left to the trial judge to decide.