In the recent case McGillivary v. Toronto Police Services Board, 2014 ONSC 865, Master Muir granted the plaintiffs' Rule 30.10 documentary production motion with regards to evidence obtained by the non-party Special Investigation Unit (“SIU”). The decision is significant as it considers several important issues which typically arise in R.30.10 production motions, particularly in the context of police litigation.
The plaintiff Anne McGillivary and her son Charles were taking a walk when Charles was mistakenly apprehended by Toronto Police officers. A struggle ensued, during which Charles stopped breathing and died. An SIU investigation followed, during which witness statements were taken and an amateur video of the incident was unearthed. At issue in this motion was whether the SIU, a non-party in the litigation, should be required to produce this evidence. The SIU was the only party who opposed the motion.
In deciding the issue, Master Muir followed Ontario (AG) v. Stavro,  O.J. No. 3136 (C.A.) where the Ontario Court of Appeal set out a six-point test governing R.30.10 production motions. In Stavro it was held that while production from a non-party is exceptional, production may be ordered if it is deemed fair, having regard for six enumerated factors. In McGillivary, Master Muir paid special attention to four of these six factors: (i) the importance of the documents sought; (ii) whether production is warranted at the discovery stage rather than at trial; (iii) the availability of the documents or their equivalent from another source; and (iv) the relationship to the litigation of non-parties from whom production is sought.
First, Master Muir held that the SIU evidence was of particular importance as it was highly relevant to the proceedings, as well as because it was obtained shortly after the incident took place, when the memory would have been freshest in the witnesses' minds. Second, Master Muir ordered production at the discovery stage as opposed to at trial, holding that the production at the earlier stage was desirable as it could facilitate a more effective mediation and thus encourage settlement of the dispute. Third, Master Muir rejected the SIU's submission that evidence was available to the plaintiffs through another source by way of subpoena to the witnesses, since without the productions the plaintiffs would have no way of knowing the identity of such witnesses. Fourth and finally, while Master Muir accepted that the SIU was a “stranger” to the litigation – a factor which weighs against disclosure according to the Stravo test – he also held that this factor is diminished where the non-party is an institutional organization such as the Crown, Police, or in this case, the SIU. Based on the above factors, Master Muir concluded that the application of the Stravo criteria prima facie warranted disclosure in this case.
However, the Court retains residual discretion to refuse production for public policy reasons even where the Stravo criteria have been met. In this case, the SIU argued that, since the disclosure of the evidence given by lay and officer witnesses would breach the promise of confidentiality which the witnesses were given in exchange for cooperating, disclosure would have a “chilling effect” on the public's willingness to cooperate with SIU investigations generally. Master Muir did not accept this policy argument mainly because it lacked evidentiary foundation: the evidence came solely from the SIU's legal counsel and not from past or present witnesses, and was general and imprecise in nature. Ultimately, Master Muir was not convinced that “the efficacy of SIU investigations hinges on a qualified assurance of confidentiality.”
The effect of the McGillivary decision is that parties involved in police litigation must be prepared to bring or respond to Rule 30.10 production motions relating to SIU witness statements. While Master Muir was clear that a production order is discretionary and even exceptional, McGillivary suggests that a party who can show that the evidence contained in SIU witness statements is both relevant and unavailable from other sources will have a reasonable chance of success on a R. 30.10 motion, and may even be able to attain disclosure prior to trial.