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Criminal Law - Evidence - Documentary evidence

Thursday, March 16, 2017 @ 8:00 PM  


Application by the Ombudsman of Nova Scotia to stay a production order pending his appeal. The Ombudsman received a complaint from two former employees of the Cumberland Regional Development Authority (CRDA) and commenced an investigation into the financial practices of the CRDA. He released a pubic report indicating that the complaint was substantiated. The province then engaged PWC to conduct a forensic audit of the CRDA. The audit resulted in a referral to the RCMP Commercial Crime Unit. The RCMP obtained a production order under s. 487 of the Criminal Code, requiring the Ombudsman to produce all documents and data relating to its August 2012 report. The Ombudsman applied to have the order varied or revoked, on the basis that compliance would result in the disclosure of privilege or protected information. The judge declined to revoke the production order, instead varying the order to require the Ombudsman to produce a summary of information that suggested knowledge the CRDA was submitting false or improper documentation. The Ombudsman was unsuccessful in seeking judicial review. The RCMP investigation had subsequently led to the laying of criminal charges.

HELD: Application allowed. The Ombudsman raised arguable issues in his appeal with respect to the need for privacy and confidentiality in the work his office performed. Any forced disclosure, if it turned out to be unlawful, could not be undone, satisfying the appeal court that irreparable harm would result if a stay was not granted. A delay in providing the information to the RCMP would not necessarily prevent the Crown from meeting its disclosure obligations in the criminal proceeding, given that the information was in the hands of a third party. It was mere speculation that the criminal case would be dismissed for delay. The balance of convenience did not preclude a stay.