Imperial Oil v. Jacques and Couche-Tard Inc. v. Jacques (Evidence — Civil procedure).

On appeal from the judgments of the Court of Appeal for Quebec, 2012 QCCA 2265, and 2012 QCCA 2266, refusing leave to appeal a decision of Bélanger J., 2012 QCCS 2954.

To carry out the “Octane” investigation into allegations of a conspiracy to fix gasoline pump prices in certain regions of Quebec, the Competition Bureau of Canada obtained judicial authorizations under Part VI of the Criminal Code that enabled it to intercept and record more than 220,000 private communications. As a result of the investigation, charges were laid against 54 persons, including certain of the appellants. In parallel with the criminal proceedings, the respondents instituted a class action against a number of persons, including the appellants, alleging that they had engaged in anti-competitive practices in breach of the duties imposed by art. 1457 of the Civil Code of Québec (“C.C.Q.”)and s. 36 of the Competition Act . In support of their action, they filed, under art. 402 of the Code of Civil Procedure (“C.C.P.”), a motion in which they sought disclosure by the federal Director of Public Prosecutions and the Competition Bureau of the recordings that had already been disclosed to the accused in the parallel criminal proceedings. The appellants contested the motion.

The Superior Court, being of the opinion that the evidence requested by the respondents was relevant and that neither the Competition Act nor the Criminal Code created an immunity from disclosure, granted the motion. To control the disclosure process and the scope of the disclosure, it ordered that the Director of Public Prosecutions and the Competition Bureau disclose the requested recordings solely to the lawyers and experts participating in the civil proceedings, and that they screen the recordings to protect the privacy of third parties having nothing whatsoever to do with the proceedings. The Court of Appeal refused leave to appeal that decision.

HELD (6:1): that the appeals be dismissed.

Per LeBel, Rothstein, Cromwell, Moldaver and Wagner JJ.: A party to a civil proceeding can request the disclosure of recordings of private communications intercepted by the state in the course of a criminal investigation. Although s. 29 of theCompetition Act provides for confidentiality of the Competition Bureau’s record of investigation, it does not prohibit the disclosure of private communications intercepted under Part VI of the Criminal Code , as such communications are not among the types of information referred to in s. 29(1)(a) to (e). Moreover, even though s. 193(1) of the Criminal Code lays down the principle that it is unlawful to disclose or use an intercepted private communication without the consent of the originator or the intended recipient of the communication, this general prohibition is tempered by some exemptions. Section 193(2)(a) provides that a disclosure is not an offence under s. 193(1) if it is made “in the course of or for the purpose of giving evidence in any civil . . . proceedings”. Nothing in the words of this provision justifies limiting its application to the time when evidence is being given. The documents requested at the exploratory stage of any civil proceeding may be requested “for the purpose” of testifying at the hearing. The provision’s object and context admit of no other conclusion. Section 193(2)(a) does not have facilitating the fight against crime as its sole purpose; rather, its object is to ensure that courts will have access to all information relevant to the proceedings before them. Similarly, the case law and the academic literature support a broad interpretation of s. 193(2)(a). Finally, the admissibility in evidence of recordings of private communications is governed by s. 24(2) of the Charterand the various applicable provincial statutes.

Section 193 of the Criminal Code creates neither an actual disclosure mechanism nor a right of access. Since this case involves civil proceedings brought under s. 36 of theCompetition Act and art. 1457 C.C.Q., the procedure for seeking access to the recordings is the one provided for in art. 402 C.C.P. The first paragraph of art. 402 C.C.P. empowers a judge to order the disclosure of documents relating to the issues between the parties that are in the possession of a third party. Judges have great discretion, but will generally favour disclosure. Nevertheless, a judge must deny a request for disclosure in the face of an immunity from disclosure that is either provided for in legislation or established by the courts. In exercising his or her discretion, the judge may consider,inter alia, the relevance of the documents to the issues between the parties, the extent to which the privacy of a party or of a third party to the proceedings is invaded and the importance of remaining sensitive to the duty to protect a person’s privacy. The concept of relevance is generally interpreted broadly at the exploratory stage of the proceedings. The impact of disclosure on the rights of innocent persons requires that care be taken in considering motions for disclosure, although it cannot constitute a cause why evidence should not be disclosed in all circumstances. The scope of the protection of the right of the innocent to privacy must always be assessed in light of the various interests at stake. Finally, by giving judges the power to refuse to order disclosure where a barrier to disclosure is provided for in legislation or has been established by the courts, art. 402, para. 1 already provides that, where necessary, the principle of disclosure it codifies will yield to any applicable federal provision that prohibits disclosure.

Judges also have great discretion to control the process of disclosing evidence at the exploratory stage of proceedings, and to set conditions for and limits on disclosure. In doing so, they must weigh the interests involved, but must at the same time limit the potential for invasion of privacy and avoid unduly limiting access to relevant documents so as to ensure that the proceedings remain fair, the search for truth is not obstructed and the proceedings are not unjustifiably delayed. Where the requested documents result from a criminal investigation, the judge must also consider the impact of disclosure on the efficient conduct of the criminal proceedings and on the right of the accused to a fair trial. However, at the exploratory stage of a proceeding, the right to privacy, the efficient conduct of criminal proceedings and the right to make full answer and defence are, to some degree, protected by the duty of confidentiality imposed on the parties, their counsel and their experts. Nevertheless, judges have the powers they need to impose other conditions. In every case, the judge must, bearing in mind the proportionality principle that is inherent in art. 402 C.C.P. and is also spelled out in art. 4.2 C.C.P., consider the financial and administrative impact of the conditions being imposed and how they will affect the general conduct of the proceedings.

The order of the Superior Court in this case is consistent with these principles. There is no factual or legal impediment to disclosure of the documents requested by the respondents under art. 402 C.C.P. Nor is there anything to cast doubt on the Superior Court’s finding that the requested evidence is relevant. Furthermore, the scope of the disclosure order is limited so as to protect the right to privacy of all those whose communications were intercepted. The limits also ensure that disclosure of the information will not hinder the efficient conduct of the criminal proceedings or violate the right of the parties still facing criminal charges to a fair trial. There is no indication that the order imposes an undue financial and administrative burden on the third party in question in this case.

Per McLachlin C.J.: The power to obtain disclosure of intercepted private communications in this case arises solely from art. 402 C.C.P., not s. 193(2)(a) of the Criminal Code . Where the state is otherwise empowered or required to disclose intercepted private communications in civil proceedings, s. 193(2)(a) protects the authorities from criminal sanction.

Per Abella J. (dissenting): It is not legally permissible in Canada to authorize electronic surveillance for the purpose of gathering evidence in civil proceedings. Electronic surveillance can only be authorized in the limited circumstances set out in Part VI of the Criminal Code for the investigation of serious crimes, or under the Canadian Security Intelligence Service Act for the investigation of threats to national security. Part VI recognizes the uniquely intrusive character of electronic surveillance by permitting state interception of private communications only if express safeguards are followed. Until a determination has been made as to the legality of a challenged interception, the communication is not admissible in a criminal proceeding.

Section 193(2)(a) should not be interpreted in a way that overrides the privacy protections in Part VI. Section 193(2)(a) does not create a right to access intercepted communications and is not available to pre-empt a judicial determination about the validity of an interception. Until those interceptions have been found, or are conceded to be, lawful and admitted into evidence in a criminal proceeding, they retain their private character for all purposes and are not available to the public. Using s. 193(2)(a) to permit litigants in a civil case to get disclosure of communications intercepted in the course of a criminal investigation before a challenged interception is found to be lawful, allows those litigants to benefit indirectly from an extraordinary investigative technique they are otherwise not legally entitled to.

The general right to privacy and the specific right not to have confidential information disclosed are expressly protected in Quebec’s Charter of Human Rights and Freedoms. The discretion in art. 402 of the Code of Civil Procedure to order disclosure should therefore not be so interpreted as to extinguish the scrupulous protection for the non-disclosure of intercepted communications found in other parts of the law. This provision gives significant discretion to a trial judge, but it does not give him or her carte blanche to order disclosure of communications protected by an almost impermeable legal coating like a privileged communication. Evidence gathered through electronic surveillance is entitled to the same protection and, as a result, is not amenable to a balancing exercise.

Reasons for judgment by LeBel and Wagner JJ., concurring reasons by the Chief Justice, dissenting reasons by Abella J.  Neutral citation:  2014 SCC 66.  Nos. 35226 and 35231.