Canada: Civil And Criminal Law Collide: The Use Of Wiretap Evidence In Civil Proceedings


Information gleaned from wiretap authorizations can be disclosed in Quebec civil proceedings, after the Supreme Court's decision in Imperial Oil v Jacques, 2014 SCC 66. The immediate question for civil litigators outside Quebec is whether Justices LeBel and Wagner, for the majority, meant to create a rule applicable in all Canadian civil cases, or whether their reasons were confined to proceedings under the Quebec Code of Civil Procedure.[1] This commentary assumes it's the former; Quebec law applied on the facts, but the majority did not explicitly limit its conclusion to that province.

The comments of Chief Justice McLachlin, concurring, and Justice Abella, dissenting, support this view. In fact, the potential for the majority reasons to apply across Canada is what led the Chief Justice to issue her own set of reasons:

[89]            I have read the reasons of my colleagues LeBel and Wagner JJ., and am in agreement with the conclusion that they reach in these appeals.  However, assuming that my colleagues' reasons can be read as characterizing s. 193(2) (a) of the Criminal Code, R.S.C. 1985, c. C-46 , as empowering Canadian authorities to disclose intercepted private communications for use in civil proceedings (an assumption that I do not share), I must respectfully disagree.

[90]            In my view, the power to obtain disclosure of the intercepted private communications in the circumstances of this case arises solely from art. 402 of the Code of Civil Procedure, CQLR, c. C-25, not s. 193(2)(a).

[Emphasis added.]

Brief review of the facts

The appeal stemmed from an alleged conspiracy to fix gas prices in Quebec, and the parallel criminal proceedings and class proceedings that arose from that allegation (paras 2-4). The class action plaintiffs brought a disclosure motion under Quebec's Code of Civil Procedure, seeking any "private communications that had been intercepted" during the criminal investigation that "had already been disclosed to the accused" (para 5).

The motion judge granted the order, on the conditions that (a) the information be screened to protect third party privacy, and (b) the disclosure be limited to the lawyers and experts in the class proceedings (para 12).

The majority of the Supreme Court ultimately upheld this order (paras 79, 87).

The 5 main building blocks of the majority's reasoning

  • The primary purpose of civil proceedings is to determine the truth. Pre-trial disclosure is an essential part of this "truth-seeking function" (paras 24-26). Attempting to achieve proportionality is important, but "seeking the truth" is paramount (para 24).
  • To this end, the general rule is that relevant evidence should be disclosed, and: "To be relevant, the requested document must relate to the issues between the parties, be useful and be likely to contribute to resolving the issues" (para 30). Relevance also acts as an important limit in civil litigation:

[31]            This relevance requirement ensures that the parties do not conduct "fishing expeditions". It also ensures that the conduct of the proceedings is not delayed, complicated or even jeopardized by the introduction of evidence that does not assist in establishing the rights being claimed (see Royer and Lavallée, at p. 487; Marseille, at pp. 1 and 21). In this sense, the relevance rule is a procedural balancing rule that ensures the efficiency of the judicial process while facilitating the search for truth.


  • Information retrieved from wiretaps authorized in criminal proceedings can be relevant in a civil case. In this case, the information was relevant to the plaintiffs' argument on collusion (paras 32 and 52).
  • The Criminal Code does not prohibit the disclosure of wiretap communications in an appropriate civil case. According to the majority, section 193(2)(a) of the Criminal Code applies to enable disclosure (paras 42-43, 47, 50-51, 74). This provision creates an exemption to what would otherwise be a criminal offence under section 193(1) (the unlawful disclosure or use of an intercepted private communication):

(2)  [Exemptions] Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication

(a)  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;

[See para 42; emphasis the Court's.]

Although this is a Criminal Code provision, the majority was clear that access to this information in civil proceedings, and the terms of its release, would be governed by the applicable rules of civil procedure (paras 27, 43).

  • There must be limits on the disclosure of wiretap information in civil proceedings in order to protect the competing interests at play, and judges have the discretion to oversee the process and contain the scope of disclosure where necessary (para 82):

[83]            A judge laying down conditions for the disclosure of private documents must consider and weigh the various interests involved. On the one hand, the judge must limit the potential for invasion of privacy and, on the other, he or she must 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 (see Frenette, at pp. 685‑86). Where, as in the case at bar, the documents requested by a party result from a criminal investigation, the judge must also consider — in addition to the factors just mentioned — the impact of disclosure of the documents in question on the efficient conduct of the criminal proceedings and, if applicable, on the right of the accused to a fair trial.

Controls may relate to the "number of persons authorized" to review the documents, along with where, when, and how this review can happen (para 84).

Privilege would be another obvious limit (para 33).

Returning to the proportionality principle, LeBel and Wagner JJ suggested that judges must also consider whether disclosure would impose "an undue financial and administrative burden" on the producing party (paras 85, 87). They stated (at para 85):

Combined with the relevance test, this factor will enable the judge to limit the scope of disclosure to that which is strictly necessary. A court hearing an application for disclosure can also consider the related costs and order that the applicant pay a reasonable amount in compensation to the person who is thus required to disclose documents in his or her possession.

However, there is no "innocent third party" exception that would limit disclosure. Justices LeBel and Wagner rejected Imperial Oil's argument that no communications about it should have been disclosed owing to its "special status as an 'innocent third party', because it was not charged in the parallel criminal proceedings or 'targeted' by the wiretap operation" (para 75).

In the result, the majority held that the motion judge's limits on disclosure were "perfectly consistent with these principles" (para 87).

A special mention for Justice Abella's dissent

Justice Abella's dissent stands in stark contrast to the majority. The majority emphasized the search for truth in civil proceedings, whilst Justice Abella was concerned about ensuring the protection of privacy in criminal cases:

[98]            This provision [art 402] 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.  In my view, evidence gathered through electronic surveillance is entitled to the same protection and, as a result, is not amenable to a balancing contest.

In another memorable turn of phrase, she noted:

It seems to me to be ironic to say that communications sedulously protected from disclosure in the criminal justice system can somehow shed those protections by crossing over to the civil justice side of the street.

Justice Abella used the comparator of solicitor-client privilege to bolster her position:

[99] Cases dealing with solicitor-client privilege offer helpful guidance. In Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, for example, the relevance of the communications did not justify the disclosure of potentially privileged documents to opposing counsel. In other words, when communications are protected by privilege, they are not subject to a balancing exercise weighing their relevance against their immunity. They are protected regardless of relevance.

[Emphasis added.]

For Justice Abella, there are only two exceptional situations where disclosure could be ordered (para 96):

In my respectful view, such communications can only be disclosed in a civil case where they have already been made public in a criminal trial, or where the targets of the interception have either consented to the disclosure or otherwise waived their privacy interests. None of those exceptions makes an appearance in the scenario before us.


It will be interesting to see how civil litigants and courts outside Quebec apply Imperial Oil. That said, it is doubtful that wiretap communications will become a routine part of the discovery and disclosure process anywhere in Canada, at least not without strict limits like those imposed in this case. Finding the truth is a laudable goal, but as Justice Abella's dissent makes clear, achieving justice still requires the protection of privacy.

[1] Article 402 in particular (reproduced at para 27 of the decision): "402.  If, after defence filed, it appears from the record that a document relating to the issues between the parties is in the possession of a third party, he may, upon summons authorized by the court, be ordered to give communication of it to the parties, unless he shows cause why he should not do so."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.