In a decision released on October 20, 2014, the Supreme Court of Canada considered the question of whether a party to a civil proceeding can compel the disclosure of records of private communications intercepted by the state in the course of a criminal investigation.

BACKGROUND

In early summer 2004, the Competition Bureau began an investigation (Octane Investigation) regarding allegations of a conspiracy claimed to affect gasoline pump prices in certain regions of Quebec. In order to carry out the investigation, the Competition Bureau obtained judicial authorizations from the court in Quebec under theCriminal Code (not the Competition Act) that enabled it to intercept and record more than 220,000 private wiretapped communications.

In 2008, as a result of the Octane Investigation, a series of charges where laid against various entities. In parallel with the criminal proceedings, certain individuals commenced a class action in the Québec Superior Court alleging that the defendants had, among other things, engaged in anti-competitive practices. That action was certified by the Superior Court which authorized the bringing of a class action.

On December 8, 2011, in support of the class action, the plaintiffs filed a motion for the disclosure of documents under the Quebec Code of Civil Procedure. The plaintiffs also requested that the federal director of public prosecutions and the Competition Bureau disclose to them all of the private communications that had been intercepted in the course of the Octane Investigation. The plaintiffs then narrowed their request, limiting it to the recordings that had already been disclosed to the accused in the parallel criminal proceedings. The application was contested.

Disclosure was largely resisted on the basis that doing so would be inconsistent with the provisions of theCriminal Code and the Competition Act such that the Quebec Code of Civil Procedure could therefore not serve as any basis for disclosure.

SUPREME COURT OF CANADA DECISION

In allowing the disclosure of the records, the majority of the court observed that the ultimate aim of any trial, criminal or civil, was to seek and ascertain the truth and that the rules of procedure and law of evidence in civil matters are intended to achieve that very purpose. The Supreme Court of Canada referenced the Quebec Code of Civil Procedure rule, which expressly allows records within the possession of a third party to be produced. Many other jurisdictions in Canada, including Alberta and Ontario for example, have similar rules which allow relevant and material records in the possession of a third party to be produced subject to certain requirements being met.

Whether records in the possession of a third party should be produced often involve a number of considerations. While the courts do not allow parties to conduct "fishing expeditions" in the search for records, among other considerations, the courts' analysis involves determination of relevancy together with the consideration of confidentiality rights, privacy rights and the efficiency of the judicial process as against facilitating the search for truth. The Supreme Court of Canada also noted that in the discovery or exploratory stage of an action, the court may find that the scope of relevance is sometimes broader than trial given that the issues may not be as focused. As a result, that may result in a court erring on the side of relevance and disclosure.

The Supreme Court of Canada was clear to state that the existing strict controls on the interception of private communications remain in Canadian law. It was also clear to emphasize that it was only considering whether communications already intercepted by the state could be disclosed to individuals who are parties in civil trials in order to serve what was claimed to be other legitimate purposes, such as truth-finding, procedural fairness and ensuring the efficiency of the judicial process.

The court also noted that (at least implicitly) before third-party records are produced, the court should engage in an analysis to ensure there are no factual or legal impediments that should militate against disclosure of the records requested. The court also indicated that, in order to mitigate any potential harm from the disclosure of records in the possession of a third party, courts always have the ability, responsibility and control to impose such measures and conditions on any disclosure as may be appropriate in the circumstances.

The court held that the appropriateness and extent of such control vary with the interests to be protected and the circumstances of each case, but was clear that those issues should be considered in the overall mix of whether records should be disclosed.

It should be noted that because the wiretap evidence was collected under the Criminal Code rather than theCompetition Act, the section of the Competition Act that prevents the Bureau from disclosing evidence to third parties except “for the purposes of the administration and enforcement of the” Competition Act was held not to apply. That section prevents the Bureau from disclosing, among other things, information provided to the Bureau on a voluntary basis. Since this section (s. 29) of the Competition Act was held not to apply, the decision does not affect the Bureau’s ability to resist third-party discovery efforts of information it obtains under its Immunity and Leniency programs.

CONCLUSION

While the court makes it very clear that the specific circumstances of this particular case favoured disclosure of the recordings of private communications intercepted by the state in the course of a criminal investigation, it does not suggest that result should occur in all cases. Rather, this decision clearly identifies the risk of disclosure occurring in the context of future civil proceedings in circumstances where parallel criminal proceedings have created a relevant evidentiary record.

The dissenting judgment by Justice Abella commenced with quoting her former Supreme Court of Canada colleague that "[O]ne can scarcely imagine a state activity more dangerous to individual privacy than electronic surveillance."

While the dissenting judgment of Justice Abella contains many persuasive points as to why disclosure should not have been allowed in that case, the majority decision is perhaps a harbinger of things to come and arguably points to a trend in civil litigation to allow the disclosure of records, if relevant, regardless of their origin (except where those records are subject to a valid claim of privilege or otherwise prohibited by statute).

Defendants should take note that relevancy and the pursuit of fact-finding may trump confidentiality, privacy and other considerations as those matters are often considered to be manageable by drafting mechanisms in an order to prevent abuse.