Can electronic surveillance conducted in the context of a criminal investigation be disclosed to a plaintiff in a class action? Yes, according to a majority of the Supreme Court of Canada in Imperial oil v. Jacques, 2014 SCC 66.

In this case, the Competition Bureau of Canada had obtained permission to conduct electronic surveillance of various individuals who were suspected of fixing gas prices in certain regions of Quebec. The operation, code-named "Octane," intercepted and recorded more than 220,000 private communications.

As Octane was underway, a class action was authorized against a number of individuals and entities being kept under surveillance. Plaintiff Jacques alleged that the defendants had engaged in anti-competitive behaviour and were liable towards consumers who had purchased fuel from their service stations. The Plaintiff sought to obtain some of the intercepted communications under article 402 of the Quebec Code of Civil Procedure. This provisions states that if "it appears from the record that a document relating to the issues between the parties is in the possession of a third-party, he ordered to give communication of it..."

In first instance, the Superior Court of Quebec ordered communication of the specific recordings sought by the Plaintiff. The Superior Court found that no relevant immunities could be invoked by the defendants under the Competition Act or the Criminal Code. The Quebec Court of Appeal refused leave to appeal the decision.

The Supreme Court agreed with the Superior Court and maintained the decision of first instance.

According to the majority (the Chief Justice agreeing with the result, but for separate reasons), although the Criminal Code prohibits the unlawful disclosure of information, doing so is not an offence if it is made in the course or for the purpose of giving evidence in a civil trial. This broader, more generous approach to the applicable criminal law rules is supported by the existing case law and academic literature.

The majority added that article 402 C.C.P. provides the trial judge with discretion in determining what constitutes reasonable disclosure in a given set of circumstances, including the relevance of the intercepted communications to the legal debate between the litigants and the extent and prejudicial consequences of the proposed invasion of privacy.

The majority stated that, at the exploratory stage of a proceeding, privacy concerns are generally tempered by the duty of confidentiality imposed upon the parties, their lawyers and any experts involved in the litigation.

In a dissenting opinion, Justice Abella concluded that disclosing to a private litigant communications intercepted during a criminal investigation would provide that litigant with an extraordinary advantage that he or she would not otherwise be entitled to. Such disclosure would also infringe the right to privacy enshrined in Quebec's Charter of Human Rights and Freedoms.

It follows that parties in Quebec whose communications have been lawfully intercepted by authorities in the course of a criminal investigation may see those communications disclosed to a civil plaintiff under article 402 C.C.P., provided the disclosure is found to be appropriate and proportionate by the trial judge.

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