Background
Supreme Court ruling
Comment


Wiretap evidence obtained in a Competition Bureau criminal investigation may be disclosed for purposes of a class action alleging anti-competitive practices, according to the Supreme Court of Canada.(1)

Background

In 2004 the Competition Bureau started a criminal investigation into allegations of a gas price-fixing conspiracy in certain regions of Quebec. For the purposes of the investigation, the bureau sought and obtained the required judicial authorisations under the Criminal Code to intercept and record over 220,000 private communications, which eventually led to criminal charges being laid in 2008 against various individuals and corporations in Quebec pursuant to Section 45 of the Competition Act, which prohibits price-fixing arrangements between competitors.

Shortly after the criminal charges were laid, a motion seeking authorisation to bring a class action was filed against several respondents, including the persons that the Competition Bureau had investigated. The proposed class action accused the respondents of causing the class members harm by conspiring to raise gas prices at the pump. On November 30 2009 Judge Bélanger, then of the Quebec Superior Court, authorised the class action.

On December 8 2011, after the defendants to the class action had filed their plea, the plaintiffs presented a motion under Article 402 of the Quebec Code of Civil Procedure to compel the federal director of public prosecutions and the Competition Bureau – both third parties for purposes of the class action – to disclose to them the wiretap evidence that had been collected. Bélanger granted the motion and authorised the disclosure of part of the wiretap evidence, but limited disclosure to the professionals involved in the civil action (ie, counsel and the experts for the parties).

Supreme Court ruling

The Supreme Court upheld Bélanger's order providing for disclosure of the evidence only to counsel and the experts. However, the court refrained from ruling on its admissibility.

In the reasons of the majority, the Supreme Court dismissed the defendants' claim that certain provisions of the Criminal Code and the Competition Act are inconsistent with the disclosure of such wiretap evidence. The court observed that only clear language in federal legislation prohibiting disclosure would block such a request and that in the circumstances there was no such language.

The ruling is predicated on the broad and generous principles that govern the disclosure of evidence at the discovery stage under the Quebec Code of Civil Procedure. Provided that the wiretap evidence gathered in a criminal investigation relates to facts that are relevant for the civil proceeding and is not otherwise subject to privilege, immunity from disclosure or other specific exception, there is no principle of civil procedure that allows disclosure to be refused.

This ruling also applies to wiretap evidence involving 'innocent third parties' – that is, persons who are not subject to criminal investigation but are nonetheless involved in a civil proceeding (eg, a class action).

However, the Supreme Court has acknowledged that, depending on the circumstances, respect for an individual's privacy, the orderly conduct of the criminal investigation or respect for the rights of the accused may preclude grant of such a request.

Comment

The ruling reflects a liberal interpretation of the principles of civil procedure. It allows for the disclosure for purposes of civil proceedings of recordings made during criminal investigations, regardless of whether the Crown has introduced them in evidence in the criminal charges and ensuing proceeding. This is important for persons who are implicated in anti-competitive practices.

Under the new Quebec Code of Civil Procedure, which will come into force in 2016 (on a date as yet unknown), the new Article 251 is worded differently from the current Article 402. It remains to be seen whether the entry into force of the new code will have any effect on the interpretation and/or scope of this ruling, and whether the ruling will be applied in common law provinces, where there are similar provisions allowing the courts to order production of relevant documents from third parties in civil proceedings.

For further information please contact Vincent Rochette at Norton Rose Canada LLP by telephone (+1 514 817 4747), fax (+1 214 286 5474) or email (vincent.rochette@nortonrose.com). The Norton Rose Fulbright website can be accessed at www.nortonrosefulbright.com.

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Endnotes

(1) Imperial Oil v Jacques, 2014 SCC 66.