Imperial Oil v. Jacques

Imperial Oil v. Jacques
Collection
Supreme Court Judgments
Date
2014-10-17
Neutral citation
2014 SCC 66
Report
[2014] 3 SCR 287
Case number
35226, 35231
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Wagner, Richard
On appeal from
Quebec
Subjects
Evidence
Notes
SCC Case Information: 35226, 35231
Decision Content
SUPREME COURT OF CANADA
Citation: Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287
Date: 20141017
Docket: 35226, 35231
Between:
Imperial Oil
Appellant
and
Simon Jacques, Marcel Lafontaine, Automobile Protection Association, Attorney General of Quebec and Director of Public Prosecutions of Canada
Respondents
- and -
Attorney General of Ontario, Couche-Tard Inc., Alimentation Couche-Tard Inc., Dépan-Escompte Couche-Tard Inc., Céline Bonin, Richard Bédard, Carole Aubut, Ultramar Ltd, Luc Forget, Jacques Ouellet, Pétroles Therrien Inc., Distributions Pétrolières Therrien Inc., Irving Oil Inc./Irving Oil Operations Ltd., Olco Petroleum Group Inc., Coop fédérée, Robert Murphy, Gary Neiderer, 9142-0935 Québec Inc., 9131-4716 Québec Inc., Groupe Denis Mongeau Inc., France Benoît, Richard Michaud, Luc Couturier, Guy Angers, Philippe Gosselin & Associés Ltd., André Bilodeau, Carol Lehoux, Claude Bédard, Stéphane Grant, Pétroles Cadrin Inc., Daniel Drouin, Pétroles Global inc./Global Fuels Inc., Pétroles Global (Québec) inc./Global Fuels (Quebec) Inc., Provigo Distribution Inc., Christian Payette, Pierre Bourassa, Daniel Leblond, Dépanneur Magog-Orford Inc, 2944-4841 Québec Inc., Société coopérative agricole des Bois-Francs, Gestion Astral Inc., Lise Delisle, 134553 Canada Inc., Garage Luc Fecteau et fils Inc., Station-Service Jacques Blais Inc., 9029-6815 Québec Inc., Garage Jacques Robert Inc., Gérald Groulx Station Service Inc., Services Autogarde D.D. Inc., 9010-1460 Québec Inc., Armand Pouliot, Julie Roberge, Station-Service Pouliot et Roberge s.e.n.c., 9038-6095 Québec Inc., 9083-0670 Québec Inc., Gestion Ghislain Lallier Inc., 2429-7822 Québec Inc., 2627-3458 Québec Inc., 9098-0111 Québec Inc., 2311-5959 Québec Inc., Gaz-O-Pneus Inc., C. Lagrandeur et fils Inc., Universy Galt Service Inc., Valérie Houde, Sylvie Fréchette, Robert Beaurivage, 9011-4653 Québec Inc., Pétroles Remay Inc., Variétés Jean Yves Plourde Inc. and 9016-8360 Québec Inc.
Interveners
And Between:
Couche-Tard Inc., Alimentation Couche-Tard Inc., Dépan-Escompte Couche-Tard Inc., Céline Bonin, Richard Bédard, Ultramar Ltd, Pétroles Therrien Inc., Distributions Pétrolières Therrien Inc, Irving Oil Operations Ltd., Olco Petroleum Group Inc., Coop fédérée, Robert Murphy, Gary Neiderer, 9142-0935 Québec Inc., 9131-4716 Québec Inc. and Groupe Denis Mongeau Inc.
Appellants
and
Simon Jacques, Marcel Lafontaine, Automobile Protection Association, Attorney General of Quebec, Director of Public Prosecutions of Canada, France Benoît, Richard Michaud, Luc Couturier, Guy Angers, Philippe Gosselin & Associés ltée, André Bilodeau, Carol Lehoux, Claude Bédard, Stéphane Grant, Pétroles Cadrin Inc., Daniel Drouin, Pétroles Global inc./Global Fuels Inc., Pétroles Global (Québec) inc./Global Fuels (Quebec) Inc., Provigo Distribution Inc., Christian Payette, Pierre Bourassa, Daniel Leblond, Dépanneur Magog-Orford Inc., 2944-4841 Québec Inc., Société coopérative agricole des Bois-Francs, Gestion Astral Inc., Lise Delisle, 134553 Canada Inc., Garage Luc Fecteau et fils Inc., Station-Service Jacques Blais Inc., 9029-6815 Québec Inc,, Garage Jacques Robert Inc., Gérald Groulx Station-Service Inc., Services Autogarde D.D. Inc., 9010-1460 Québec Inc., Armand Pouliot, Julie Roberge, Station-Service Pouliot et Roberge s.e.n.c., 9038-6095 Québec Inc., 9083-0670 Québec Inc., Gestion Ghislain Lallier Inc., 2627-3458 Québec Inc., 2429-7822 Québec Inc., Universy Galt Service Inc., 9098-0111 Québec Inc., 2311-5959 Québec Inc., Gaz-O-Pneus Inc., C. Lagrandeur et fils Inc., Valérie Houde, Sylvie Fréchette, Robert Beaurivage, 9011-4653 Québec Inc., Pétroles Remay Inc., Variétés Jean-Yves Plourde Inc., 9016-8360 Québec Inc., Carole Aubut, Luc Forget and Jacques Ouellet
Respondents
- and -
Attorney General of Ontario
Intervener
Official English Translation: Joint reasons of LeBel and Wagner JJ.
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Wagner JJ.
Joint Reasons for Judgment:
(paras. 1 to 88)
Concurring Reasons:
(paras. 89 to 91)
Dissenting Reasons:
(paras. 92 to 107)
LeBel and Wagner JJ. (Rothstein, Cromwell and Moldaver JJ. concurring)
McLachlin C.J.
Abella J.
imperial oil v. jacques, 2014 SCC 66, [2014] 3 S.C.R. 287
Imperial Oil Appellant
v.
Simon Jacques, Marcel Lafontaine, Automobile Protection
Association, Attorney General of Quebec and Director of
Public Prosecutions of Canada Respondents
and
Attorney General of Ontario, Couche-Tard Inc., Alimentation
Couche-Tard Inc., Dépan-Escompte Couche-Tard Inc., Céline
Bonin, Richard Bédard, Carole Aubut, Ultramar Ltd., Luc Forget,
Jacques Ouellet, Pétroles Therrien Inc., Distributions Pétrolières
Therrien Inc., Irving Oil Inc./Irving Oil Operations Ltd., Olco
Petroleum Group Inc., Coop fédérée, Robert Murphy, Gary
Neiderer, 9142-0935 Québec Inc., 9131-4716 Québec Inc., Groupe
Denis Mongeau Inc., France Benoît, Richard Michaud, Luc
Couturier, Guy Angers, Philippe Gosselin & Associés ltée, André
Bilodeau, Carol Lehoux, Claude Bédard, Stéphane Grant, Pétroles
Cadrin Inc., Daniel Drouin, Pétroles Global inc./Global Fuels Inc.,
Pétroles Global (Québec) inc./Global Fuels (Québec) Inc., Provigo
Distribution Inc., Christian Payette, Pierre Bourassa, Daniel
Leblond, Dépanneur Magog-Orford Inc., 2944-4841 Québec Inc.,
Société coopérative agricole des Bois-Francs, Gestion Astral Inc.,
Lise Delisle, 134553 Canada Inc., Garage Luc Fecteau et fils Inc.,
Station-Service Jacques Blais Inc., 9029-6815 Québec Inc., Garage
Jacques Robert Inc., Gérald Groulx Station Service Inc., Services
Autogarde D.D. Inc., 9010-1460 Québec Inc., Armand Pouliot,
Julie Roberge, Station-Service Pouliot et Roberge s.e.n.c., 9038-6095
Québec Inc., 9083-0670 Québec Inc., Gestion Ghislain Lallier Inc.,
2429-7822 Québec Inc., 2627-3458 Québec Inc., 9098-0111 Québec
Inc., 2311-5959 Québec Inc., Gaz-O-Pneus Inc., C. Lagrandeur et
fils Inc., Universy Galt Service Inc., Valérie Houde, Sylvie Fréchette,
Robert Beaurivage, 9011-4653 Québec Inc., Pétroles Remay Inc.,
Variétés Jean-Yves Plourde Inc. and 9016-8360 Québec Inc. Interveners
- and -
Couche-Tard Inc., Alimentation Couche-Tard Inc., Dépan-Escompte
Couche-Tard Inc., Céline Bonin, Richard Bédard, Ultramar Ltd.,
Pétroles Therrien Inc., Distributions Pétrolières Therrien Inc.,
Irving Oil Operations Ltd., Olco Petroleum Group Inc., Coop
fédérée, Robert Murphy, Gary Neiderer, 9142-0935 Québec Inc.,
9131-4716 Québec Inc. and Groupe Denis Mongeau Inc. Appellants
v.
Simon Jacques, Marcel Lafontaine, Automobile Protection
Association, Attorney General of Quebec, Director of Public
Prosecutions of Canada, France Benoît, Richard Michaud, Luc
Couturier, Guy Angers, Philippe Gosselin & Associés ltée,
André Bilodeau, Carol Lehoux, Claude Bédard, Stéphane
Grant, Pétroles Cadrin Inc., Daniel Drouin, Pétroles Global inc./
Global Fuels Inc., Pétroles Global (Québec) inc./Global Fuels
(Québec) Inc., Provigo Distribution Inc., Christian Payette,
Pierre Bourassa, Daniel Leblond, Dépanneur Magog-Orford
Inc., 2944-4841 Québec Inc., Société coopérative agricole des
Bois-Francs, Gestion Astral Inc., Lise Delisle, 134553 Canada Inc.,
Garage Luc Fecteau et fils Inc., Station-Service Jacques Blais Inc.,
9029-6815 Québec Inc., Garage Jacques Robert Inc., Gérald Groulx
Station-Service Inc., Services Autogarde D.D. Inc., 9010-1460
Québec Inc., Armand Pouliot, Julie Roberge, Station-Service
Pouliot et Roberge s.e.n.c., 9038-6095 Québec Inc., 9083-0670
Québec Inc., Gestion Ghislain Lallier Inc., 2627-3458 Québec Inc.,
2429-7822 Québec Inc., Universy Galt Service Inc., 9098-0111
Québec Inc., 2311-5959 Québec Inc., Gaz-O-Pneus Inc.,
C. Lagrandeur et fils Inc., Valérie Houde, Sylvie Fréchette,
Robert Beaurivage, 9011-4653 Québec Inc., Pétroles Remay Inc.,
Variétés Jean-Yves Plourde Inc., 9016-8360 Québec Inc., Carole
Aubut, Luc Forget and Jacques Ouellet Respondents
and
Attorney General of Ontario Intervener
Indexed as: Imperial Oil v. Jacques
2014 SCC 66
File Nos.: 35226, 35231.
2014: April 24; 2014: October 17.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Wagner JJ.
on appeal from the court of appeal for quebec
Evidence — Civil procedure — Disclosure — Plaintiffs in class action filing motion for disclosure of documents in which they requested disclosure by third party of recordings of private communications intercepted in course of criminal investigation — Defendants to class action objecting to disclosure on basis of immunities from disclosure provided for in legislation or established by courts — Whether party to civil proceeding can request disclosure of recordings of private communications intercepted by state in course of criminal investigation — How conditions for and limits on disclosure are to be set — Code of Civil Procedure, CQLR, c. C-25, art. 402 — Criminal Code, R.S.C. 1985, c. C-46, s. 193(2) (a) — Competition Act, R.S.C. 1985, c. C-34, ss. 29 , 36 .
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 (Abella J. dissenting): The appeals should 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 the Competition 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 Charter and 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 the Competition 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.
Cases Cited
By LeBel and Wagner JJ.
Considered: Tide Shore Logging Ltd. v. Commonwealth Insurance Co. (1979), 13 B.C.L.R. 316; Ault v. Canada (Attorney General) (2007), 88 O.R. (3d) 541; Canada (Procureur général) v. Charbonneau, 2012 QCCS 1701 (CanLII); distinguished: Michaud v. Quebec (Attorney General), [1996] 3 S.C.R. 3; referred to: Jacques v. Petro-Canada, 2009 QCCS 5603 (CanLII); Glegg v. Smith & Nephew Inc., 2005 SCC 31, [2005] 1 S.C.R. 724; P. (D.) v. Wagg (2004), 71 O.R. (3d) 229; R. v. Nikolovski, [1996] 3 S.C.R. 1197; Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647; Jones v. National Coal Board, [1957] 2 Q.B. 55; Technologie Labtronix Inc. v. Technologie Micro Contrôle Inc., [1998] R.J.Q. 2312; Blaikie v. Commission des valeurs mobilières du Québec, [1990] R.D.J. 473; Autorité des marchés financiers v. Panju, 2008 QCCA 832, [2008] R.J.Q. 1233; Fédération des infirmières et infirmiers du Québec v. Hôpital Laval, 2006 QCCA 1345, [2006] R.J.Q. 2384; Westfalia Surge Canada Co. v. Ferme Hamelon (JFD) et Fils, 2005 QCCA 514 (CanLII); Westinghouse Canada Inc. v. Arkwright Boston Manufacturers Mutual Insurance Co., [1993] R.J.Q. 2735; Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743; Communauté urbaine de Montréal v. Chubb du Canada compagnie d’assurances, [1998] R.J.Q. 759; Kruger Inc. v. Kruger, [1987] R.D.J. 11; Industries GDS inc. v. Carbotech inc., 2005 QCCA 655 (CanLII); Corporation de financement commercial Transamérica Canada v. Beaudoin, [1995] R.D.J. 633; Union Canadienne, compagnie d’assurance v. St-Pierre, 2012 QCCA 433, [2012] R.J.Q. 340; Goulet v. Lussier, [1989] R.J.Q. 2085; M. (A.) v. Ryan, [1997] 1 S.C.R. 157; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Seaboyer, [1991] 2 S.C.R. 577; Lyons v. The Queen, [1984] 2 S.C.R. 633; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; R. v. Welsh (1977), 15 O.R. (2d) 1; Subilomar Properties (Dundas) Ltd. v. Cloverdale Shopping Centre Ltd., [1973] S.C.R. 596; Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581; Law Society of Upper Canada v. Canada (Attorney General) (2008), 89 O.R. (3d) 209; Re Board of Commissioners of Police for City of Thunder Bay and Sundell (1984), 15 C.C.C. (3d) 574; Children’s Aid Society of Thunder Bay (District) v. D. (S.), 2011 ONCJ 100, 2 R.F.L. (7th) 202; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; R. v. Durette, [1994] 1 S.C.R. 469; Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671; Phillips v. Vancouver Sun, 2004 BCCA 14, 27 B.C.L.R. (4th) 27; Marché Lionel Coudry inc. v. Métro inc., 2004 CanLII 73143; Southam Inc. v. Landry, 2003 CanLII 71970; Daishowa inc. v. Commission de la santé et de la sécurité du travail, [1993] R.J.Q. 175, aff’d [1993] AZ-50072356; S.M. v. S.G., [1986] R.D.J. 617.
By Abella J. (dissenting)
R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Commisso, [1983] 2 S.C.R. 121; Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, [2006] 2 S.C.R. 32; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; National Broadcasting Co. v. United States Department of Justice, 735 F.2d 51 (1984); In re Motion to Unseal Electronic Surveillance Evidence, 990 F.2d 1015 (1993).
Statutes and Regulations Cited
Act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act, S.C. 1993, c. 40, s. 10(1).
Canadian Bill of Rights, R.S.C. 1985, App. III, s. 2(e).
Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, ss. 12 , 21 .
Charter of human rights and freedoms, CQLR, c. C-12, ss. 5, 9.
Civil Code of Québec, arts. 35, 36, 1457, 2803, 2858.
Code of Civil Procedure, CQLR, c. C-25, arts. 2, 4.2, 20, 29, 46, 76, 77, 395, 402, 1045.
Competition Act, R.S.C. 1985, c. C-34, ss. 29 , 36 .
Constitution Act, 1867, s. 91(27) .
Criminal Code, R.S.C. 1970, c. C-34, ss. 178.16, 178.2(2).
Criminal Code, R.S.C. 1985, c. C-46 , Part VI, ss. 183 “offence”, 184, 186(1)(b), 187(1)(a)(ii) [rep. & sub. 1993, c. 40, s. 7], (1.3), 189, 190, 193, 196.
Regulation of Investigatory Powers Act 2000 (U.K.), 2000, c. 23, ss. 17, 18.
Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(1) .
Supreme Court Rules, B.C. Reg. 310/76, r. 26(11).
Authors Cited
Baudouin, Jean-Louis. Secret professionnel et droit au secret dans le droit de la preuve: Étude de Droit Québécois comparé au Droit Français et à la Common-Law. Paris: L.G.D.J., 1965.
Bellemare, Daniel A. L’écoute électronique au Canada. Cowansville, Qué.: Yvon Blais, 1981.
Black’s Law Dictionary, 9th ed. St. Paul, Minn.: West, 2009, “purpose”.
Brown, Henry S. Supreme Court of Canada Practice 2014. Scarborough, Ont.: Thomson Professional Publishing Canada, 2013.
Canadian Oxford Dictionary, 2nd ed. Don Mills, Ont.: Oxford University Press, 2004, “purpose”.
Côté, Pierre-André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The Interpretation of Legislation in Canada, 4th ed. Toronto : Carswell, 2011.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Ducharme, Léo. “Rapports canadiens — première partie: la vérité et la législation sur la procédure civile en droit québécois”, dans Travaux de l’Association Henri Capitant des amis de la culture juridique française, t. 38, La vérité et le droit — Journées canadiennes. Paris: Économica, 1987, 657.
Ducharme, Léo, et Charles-Maxime Panaccio. L’administration de la preuve, 4e éd. Montréal: Wilson & Lafleur, 2010.
Ferland, Denis, et Benoît Emery. Précis de procédure civile du Québec, vol. 1, 4e éd. Cowansville, Qué.: Yvon Blais, 2003.
Fishman, Clifford S., and Anne T. McKenna. Wiretapping & Eavesdropping: Surveillance in the Internet Age, 3rd ed., vol. 4. Eagan, Minn.: Thomson/West, 2007 (loose-leaf updated November 2012).
Grammond, Sébastien. “La justice secrète: information confidentielle et procès civil” (1996), 56 R. du B. 437.
Hubbard, Robert W., Peter M. Brauti and Scott K. Fenton. Wiretapping and Other Electronic Surveillance: Law and Procedure, vol. 1. Aurora, Ont.: Canada Law Book, 2000 (loose-leaf updated February 2014, release 30).
Marseille, Claude. La règle de la pertinence en droit de la preuve civile québécois. Cowansville, Qué.: Yvon Blais, 2004.
Québec. Ministère de la Justice. Comité de révision de la procédure civile. Rapport du Comité de révision de la procédure civile: une nouvelle culture judiciaire. Québec: Le Comité, 2001.
Royer, Jean-Claude, et Sophie Lavallée. La preuve civile, 4e éd. Cowansville, Qué.: Yvon Blais, 2008.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
Tessier, Pierre. “La vérité et la justice” (1988), 19 R.G.D. 29.
APPEAL from a judgment of the Quebec Court of Appeal (Morin, Rochon and Vézina JJ.A.), 2012 QCCA 2265, [2012] AZ-50922387, [2012] J.Q. no 16661 (QL), 2012 CarswellQue 13421, refusing leave to appeal a decision of Bélanger J., 2012 QCCS 2954, [2012] AZ-50869641, [2012] J.Q. no 6264 (QL), 2012 CarswellQue 6715. Appeal dismissed, Abella J. dissenting.
APPEAL from a judgment of the Quebec Court of Appeal (Morin, Rochon and Vézina JJ.A.), 2012 QCCA 2266, [2012] AZ-50922388, [2012] J.Q. no 16662 (QL), 2012 CarswellQue 13424, refusing leave to appeal a decision of Bélanger J., 2012 QCCS 2954, [2012] AZ-50869641, [2012] J.Q. no 6264 (QL), 2012 CarswellQue 6715. Appeal dismissed, Abella J. dissenting.
Billy Katelanos, Paule Hamelin and Guy Régimbald, for the appellant Imperial Oil.
Jean-Philippe Groleau, Louis-Martin O’Neill, Louis Belleau, Julie Chenette, Sylvain Lussier, Elizabeth Meloche, Sidney Elbaz, Rachel April Giguère, Marie-Geneviève Masson, Pascale Cloutier and Fadi Amine, for the appellants Couche-Tard Inc. et al.
Louis P. Bélanger and Julie Girard, for the appellant Ultramar Ltd.
Pierre LeBel, Guy Paquette, Nicolas Guimond and Claudia Lalancette, for the respondents Simon Jacques et al.
Dominique A. Jobin, Patricia Blair, Émilie-Annick Landry-Therriault and Jean-Vincent Lacroix, for the respondent the Attorney General of Quebec.
François Lacasse and Stéphane Hould, for the respondent the Director of Public Prosecutions of Canada.
Deborah Calderwood and Megan Stephens, for the intervener the Attorney General of Ontario.
English version of the judgment of LeBel, Rothstein, Cromwell, Moldaver and Wagner JJ. delivered by
LeBel and Wagner JJ. —
I. Introduction
[1] The question raised by the appeals before the Court is whether 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.
II. Origin of the Case
[2] In the early summer of 2004, the Competition Bureau of Canada began an investigation (“the Octane investigation”) into allegations of a conspiracy to fix gasoline pump prices in certain regions of Quebec. To carry out the investigation, the Competition Bureau obtained from the Court of Québec, under Part VI of the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”), seven judicial authorizations that enabled it to intercept and record more than 220,000 private communications.
[3] In 2008, as a result of the Octane investigation, a series of charges were laid against 13 natural persons and 11 legal persons. The Crown alleged that they had conspired to fix pump prices in several cities in the following regions: Estrie, Chaudière-Appalaches and Centre-du-Québec. In July 2010 and September 2012, other charges for the same offences were laid against another 30 persons, bringing the total number of accused to 54. Some of the appellants in this Court were or still are among the accused.
[4] In parallel with the criminal proceedings, the respondents Simon Jacques, Marcel Lafontaine and Automobile Protection Association (“Jacques et al.”) instituted a class action in the Quebec Superior Court against a number of persons, including the appellants, alleging that they had breached the duties imposed on them by art. 1457 of the Civil Code of Québec (“C.C.Q.”) and s. 36 of the Competition Act, R.S.C. 1985, c. C-34 , by engaging in anti-competitive practices. On November 30, 2009, the Superior Court authorized the bringing of the class action (Jacques v. Petro-Canada, 2009 QCCS 5603 (CanLII)), which would subsequently be amended.
[5] On December 8, 2011, in support of their action, the respondents filed a motion for the disclosure of documents under art. 402 of the Code of Civil Procedure, CQLR, c. C-25 (“C.C.P.”). They requested that the federal Director of Public Prosecutions (“DPP”) and the Competition Bureau disclose to them all the private communications that had been intercepted in the course of the Octane investigation. Shortly before the motion was heard, the respondents narrowed its scope, limiting it to the recordings that had already been disclosed to the accused in the parallel criminal proceedings. The appellants contested the motion.
III. Judicial History
A. Decision of the Superior Court (2012 QCCS 2954 (CanLII))
[6] On June 28, 2012, Bélanger J., as she then was, granted the respondents’ motion. She ordered that the Competition Bureau and the DPP 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 [translation] “third parties having nothing whatsoever to do with the proceedings” (para. 98).
[7] In support of her decision, Bélanger J. began by noting that the courts have the power to order the disclosure of evidence in the possession of a third party as long as it is relevant (arts. 402 and 1045 C.C.P.). However, that power is limited if the evidence in question is subject to immunity from disclosure. Belanger J. found that no such immunity applies in this case. Contrary to what the appellants were arguing, neither the Competition Act nor the Criminal Code provides for one. Section 29 of the Competition Act expressly provides that evidence obtained may be disclosed “for the purposes of the administration or enforcement” of that Act, which is what was at issue in this case. And under s. 193(2) (a) Cr. C., a person may disclose a private communication in the course of or for the purpose of giving evidence in any civil proceedings. In this regard, Bélanger J. stated that this Court’s decision in Michaud v. Quebec (Attorney General), [1996] 3 S.C.R. 3, does not limit the application of s. 193(2) (a) to situations in which the plaintiff in the civil proceedings is also the “target” of the wiretap. As a result, there was no impediment to disclosing the wiretap information in the case at bar.
[8] Bélanger J. then stated that, because of the exceptional nature of the interception of private communications, the disclosure of such information must be subject to proper controls. Relying on this Court’s decision in Glegg v. Smith & Nephew Inc., 2005 SCC 31, [2005] 1 S.C.R. 724, she indicated that the courts have the powers they need to control the disclosure process and the scope of the disclosure. In her view, the right of access to information obtained from wiretaps must be weighed so as to strike an appropriate balance between the rights of the parties and ensure the proper administration of justice.
[9] After listing the various factors to be considered in this weighing exercise, Bélanger J. concluded that the motion should be granted except for communications involving [translation] “third parties having nothing whatsoever to do with the proceedings” (para. 98). Various factors weighed in favour of disclosing the evidence in this case, including the principles of expeditious conduct of proceedings and equality of the parties, the importance and reliability of the audio evidence in the search for truth, and the low risk of a violation of the rights to privacy and to a fair trial that were protected by the implied duty of confidentiality and by the terms of the order. However, the disclosure was to be limited to the lawyers and experts participating in the civil proceedings in order to avoid influencing the conduct of the criminal cases.
[10] Belanger J. also briefly discussed, and rejected, the alternative argument that s. 193 Cr. C. was of no force or effect. She noted that the disclosure order was based not on that section, but on the Competition Act and the Code of Civil Procedure. The application of s. 193 Cr. C. therefore did not result in an infringement of s. 8 of the Canadian Charter of Rights and Freedoms or s. 2(e) of the Canadian Bill of Rights, R.S.C. 1985, App. III.
[11] Finally, regarding the appellant Imperial Oil, Bélanger J. found that the fact that it was not involved in the criminal proceedings did not change its status for the purposes of the motion. It was not a third party to the civil proceedings, so it had the same rights and obligations as its co-defendants. As a result, the intercepted communications had to be disclosed if they were relevant. In any event, Bélanger J. added, Imperial Oil could object to the production of the evidence, if need be, at the proper time.
[12] In the end, Bélanger J. ordered that the communications intercepted in the course of the Octane investigation that had already been disclosed to the accused in the criminal proceedings be disclosed to the lawyers and experts participating in the civil proceedings. These communications would have to be screened, however, to protect the privacy rights of third parties having nothing whatsoever to do with the proceedings.
B. Decisions of the Court of Appeal (2012 QCCA 2265 (CanLII) and 2012 QCCA 2266 (CanLII))
[13] In two separate judgments, Morin, Rochon and Vézina JJ.A. of the Court of Appeal declined to review the merits of the motion judge’s decision, finding that art. 29 C.C.P., which provides for appeals from interlocutory decisions, did not apply in this case. Moreover, they noted, the courts have consistently held that a judgment dismissing an objection to evidence may not in principle be appealed, and the impugned order, which was based on the Code of Civil Procedure, the Criminal Code and the Competition Act , had been made at a stage prior to the presentation of evidence. The Court of Appeal accordingly dismissed the motions for leave to appeal.
IV. Issues and Positions of the Parties
A. Issues
[14] The appeals before this Court raise two issues. First, the Court must rule on the validity of an order, made in the course of civil proceedings, for disclosure of a series of communications that had been intercepted for the purposes of a criminal investigation. More specifically, the Court must decide whether there is any reason why the communications intercepted by the state in the course of the Octane investigation should not be disclosed to the parties to the civil proceedings. Second, the Court must rule on the constitutionality of art. 402 C.C.P., on which the motion judge’s order was based. In this regard, the Chief Justice stated the following question on September 23, 2013:
Does art. 402 of the Code of Civil Procedure . . . apply constitutionally having regard to the legislative authority of Parliament under s. 91(27) of the Constitution Act, 1867 ?
[15] In the alternative, the appellants ask the Court to decide whether the Court of Appeal erred in refusing to grant them leave to appeal Bélanger J.’s decision. Since this Court has jurisdiction to hear the appeal on the merits under its enabling legislation (Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(1) ), we are of the opinion that it is not necessary to answer this question (see H. S. Brown, Supreme Court of Canada Practice 2014 (2013), at pp. 83-84).
B. Positions of the Parties
[16] The appellants generally argue that disclosure of the intercepted private communications would be inconsistent with the provisions of the Criminal Code and the Competition Act and that, as a result, art. 402 C.C.P. cannot serve as a basis for their disclosure.
[17] The appellants Couche-Tard et al. state, first, that electronic surveillance is the most serious violation of the right to privacy and that such a violation is exacerbated if the recording is subsequently disclosed. According to them, s. 193 Cr. C. lays down a rule of strict confidentiality that is subject to a few exceptions, listed exhaustively in s. 193(2) and (3). In their view, the purpose of all these exceptions is to fight crime, which is the government objective that justified interception in the first place. Second, according to Couche-Tard et al., an interpretation consistent with the modern approach to statutory interpretation and with this Court’s decision in Michaud leads necessarily to the conclusion that Part VI Cr. C. does not give private litigants a right of access to information from wiretaps. Finally, the words of s. 29 of the Competition Act confirm the confidential nature of wiretap information and do not permit its disclosure.
[18] As for the appellant Imperial Oil, it submits that the motion of the respondents Jacques et al. constitutes an unlawful application for authorization to intercept private communications that would enable them to put together evidence they could not have obtained otherwise. The class action based on art. 1457 C.C.Q. and s. 36 of the Competition Act is civil in nature. Its purpose is to obtain reparation for pecuniary damage, not to suppress crime as is the case with Part VI Cr. C. Moreover, Imperial Oil argues that s. 193(2) (a) applies only to parties that are lawfully in possession of intercepted private communications, which means that Part VI Cr. C. cannot have the purpose or effect of giving a party to civil proceedings a right of access to private communications intercepted by the state. Imperial Oil also argues that it is an “innocent person”, because no criminal charges have been laid against it. It adds that the public interest in protecting the innocent may preclude access to evidence in the context of civil proceedings. Finally, it submits that ss. 36(2) and 29 of the Competition Act cannot se