WAGG Motions – don’t forget the audio recordings

December 8, 2017 | James D. Bromiley

Wagg motions refer to motions for the production of police or Crown documents. They are referred to as Wagg motions because of the case of D.P. v. Wagg (“Wagg”), which sets out the process to be followed when seeking these types of documents.

With very few exceptions, when a party to a motor vehicle action brings a Wagg motion, the police records and Crown brief are produced to the parties.  Very little is withheld.  The parties (and the court) must know the identity and anticipated evidence  of witnesses in order to settle civil disputes and conduct orderly trials.

The motion will invariably be supported by all of the parties in the action.  The motion will result in the requested records being collected by police agencies and the Crown’s office and screened by a lawyer in the Crown’s Law Office, under the process set out by the Court of Appeal in Wagg.  Some minor redactions will be made and perhaps a few documents withheld.

Witness names and contact information are the most common reason to bring a Wagg motion.  The Crown commonly agrees to production of names and some identifying or contact information once the motion is brought, but only after a  Court Order is obtained.  There is a reluctance to provide cell phone numbers, but these may be the best way to reach a witness.

The Crown considers dispatch or 911 calls irrelevant and confidential.  However, these calls often contain vital evidence.  For example, in a slip and fall case, ambulance dispatch calls are often highly relevant with respect to where the slip and fall occurred.  In MVA cases where liability is contentious, 911 calls are often the most honest and reliable evidence obtainable.  A motorist who was just involved in an accident and is seeking medical assistance will likely give an accurate description to the dispatcher of the events causing the accident.  This unrehearsed description of how the accident occurred, given contemporaneously with the accident happening, is often the best evidence available when trying to establish liability.

In order to ensure that all dispatch recordings are produced, a specific request has to be made and the proposed Court Order must include a clause for production of all audio files.  This should be a standard inclusion for any WAGG motion.


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