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Police Powers Newsletter


By: Justice Michelle Fuerst, Michal Fairburn and Scott Fenton

Intercepted Private Communications Available for Disclosure in Civil Action

Facts: The Competition Bureau of Canada was investigating a suspected conspiracy to fix gasoline pump prices in Quebec. Investigators obtained a Part VI authorization and eventually laid criminal charges. In parallel, a class action was commenced. Some of the defendants in the class action were facing criminal charges and others were not. The plaintiffs moved under article 402 of the Code of Civil Procedure for disclosure by the prosecutorial authority and the Competition Bureau of the intercepted communications. The Superior Court allowed disclosure, subject to certain conditions, and the Court of Appeal refused leave to appeal that decision.

Held: The Supreme Court dismissed the appeal. LeBel and Wagner JJ. wrote for the majority; McLachlin C.J. wrote a brief concurring decision; Abella J. dissented.

The majority held that a party to civil litigation can request the fruits of a Part VI authorization as third-party disclosure. The intercepted communications must be relevant to the issues in the civil action, and not otherwise immune from disclosure. The appellants argued that such immunities existed under the Competition Act and the Criminal Code; the majority rejected these arguments.

The immunity under the Criminal Code was said to arise under s. 193. That section creates the offence of using or disclosing a private communication that has been intercepted under Part VI. Subsection 193(2) creates certain exceptions to the offence. The relevant one in this case was paragraph 193(2)(a), which allows disclosure "in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person may be required to give evidence on oath".

The majority held that s. 193(2) creates exemptions from an offence, not a disclosure mechanism. This allowed the Court to deal with Michaud v. Quebec (Attorney General), [1996] 3 S.C.R. 3, where a lawyer sought the recordings from a Part VI application of which he had been a target. The Court distinguished the remark in Michaud that "outside a criminal proceeding, the Code does not provide a former surveillance target with any avenue for disclosure of the recording materials", recalling that Michaud had sought access without first commencing a civil action to which the recordings were relevant. Michaud, in other words, lacked the disclosure mechanism that was present in this case.

The question then became whether s. 193(2)(a) applied to the pre-trial discovery phase. The majority concluded that it did: the words "for the purpose of giving evidence" are not limited to the time when evidence is being given in court.
One of the appellants, Imperial Oil, argued that since it was not a target of the wiretap investigation, communications to which it was a party could not be disclosed in the civil proceedings. The majority rejected that argument: while the privacy of innocent third parties needed to be considered in the article 402 motion, it was not a categorical reason to refuse disclosure. Innocent persons' right to privacy is not absolute.

The majority held that the judge hearing a motion for disclosure of wiretap recordings must consider and weigh the various interests involved, namely, importance to the civil proceedings, invasion of privacy, and the impact on any resulting criminal proceedings. Special conditions to protect the latter interests might be desirable, as were imposed in this case. Disclosure might be refused altogether if the balance so dictated.

In dissent, Abella J. suggested that disclosure of wiretap recordings should not occur in civil proceedings, unless they have already been made public in a criminal trial or the targets have consented to disclosure. She began by observing that the interception of private communications cannot be authorized for the purpose of civil proceedings. Until a criminal court has determined the legality of the interception, the recording is not admissible in the criminal proceeding; after it has so determined, and the recording is introduced into evidence, the recording is public for all purposes, including for civil proceedings. Reading s. 193(2)(a) to allow civil litigants to access wiretap recordings before they are introduced in a criminal trial would give them the benefit of an investigative technique that they cannot use directly. Intercepted private communications are "protected by an almost impermeable legal coating like a privileged communication", and, like privileged communications, disclosure cannot be justified by the balancing effect of countervailing interests.

Commentary: This decision marks, perhaps, a departure from the spirit of Michaud and a new openness to releasing Part VI recordings outside the criminal sphere. Some might find this surprising, but it is arguably more in keeping with the language of s. 193(2)(a) than the quasi-privilege that Abella J. would have erected. The message from the majority appears to be that wiretap evidence is not sacred. Some may be concerned that requests for wiretap evidence, perhaps arising out of frivolous civil litigation, might inflict mischief on police investigations and criminal trials. Such evidence can be extremely voluminous and yet also sensitive, and so the work of reviewing it for civil disclosure may be very burdensome. The majority puts its faith in the judge hearing the disclosure application to address such concerns, including addressing his or her mind to the costs associated with such requests.

Jacques c. Pétroles Irving inc. (2014), 2014 SCC 66, 2014 CarswellQue 9818, 2014 CarswellQue 9819 (S.C.C.) 

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