Judge Wendy Matheson, of the Ontario Superior Court, made the finding that the “deemed undertaking” was broken in a sexual assault case when two Toronto lawyers exchanged hundreds of papers of information relevant to the case. The complainant, a young woman, asserts that she was sexually assaulted by the defendant on two occasions, once in Waterloo, Ontario and once in Toronto. Furthermore, she is asking around 1.5 million in damages from both the defendant and the University of Waterloo for failing to have proper security systems in place to prevent the assault. While the defendant has so far been acquitted in Waterloo, the trial in Toronto has been adjourned to next month, although it is a wonder on how the court will proceed with the case now that there has been such a breach of information. The trial falls under the Youth Criminal Justice Act, as the complainant was less than 18 years of age at the time of these incidents, making this exchange of personal information even more serious.
Because of the nature of these documents (and the fact that they were shared without notice to the court, the woman or her legal counsel), the court and all legal representation involved must examine the possibility of impeachment, meaning the bringing into question of the use of these documents as evidence in the case, as per the Rules of Civil Procedure. According to Matheson, “The Rules of Civil Procedure have acknowledged that plaintiffs remain entitled to some measure of protection of their privacy and are entitled to limitations on the use of their discovery evidence outside the proceedings for which the discovery was compelled”, meaning that the passing of information with notifying the court, as was the case, violates not only the privacy of the individual but also make the information less likely to stand in a court of law. “The plaintiff/complainant’s documentary productions comprised hundreds of pages of documents. They include extensive private information,” stated Matheson in a ruling. The documents in question were later reported to contain medical records, counselling records, medical test results, photographs, and even academic records and grades of the complainant.
“The moving party argued strenuously that notice would defeat the possible impeachment in this case. I understand that the defendant would prefer the element of surprise,” continues Matheson’s ruling. “But even in the criminal context, the element of surprise is not available to the defendant/accused when seeking access to this type of record.” This means that because of the necessity for privacy for those who claim to be victims of sexual assault, the unauthorized distribution of information will for those involved to consider the breach of privacy first as the trial continues in February which will likely prove in favour of the plaintiff over the defendant.