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

Introduction

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.

Conclusion

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."

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