Michaud v. Quebec (Attorney General)

Michaud v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
1996-09-12
Report
[1996] 3 SCR 3
Case number
23764
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 23764
Decision Content
Michaud v. Quebec (Attorney General), [1996] 3 S.C.R. 3
Marc Michaud Appellant
v.
The Attorney General of Quebec Respondent
and
The Attorney General of Canada and
the Canadian Bar Association Interveners
Indexed as: Michaud v. Quebec (Attorney General)
File No.: 23764.
1996: January 25; 1996: September 12.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the superior court for quebec
Criminal law ‑‑ Interception of private communications ‑‑ Access to sealed packet ‑‑ Access to recordings made during wiretap ‑‑ Whether person who was under electronic surveillance but not subsequently charged may have access to sealed packet and to recordings made during wiretap ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 187(1) (a)(ii) ‑‑ Canadian Charter of Rights and Freedoms, s. 8 .
The appellant, a lawyer, was the target of an authorized wiretap as part of a police investigation into the leak of confidential government documents. During the investigation, his house was searched, pursuant to a search warrant, and he was arrested and detained without the benefit of counsel. A superior court judge found that both the search and the detention were unreasonable and unlawful. No criminal charges were laid against the appellant. Informed of the wiretap authorization in accordance with s. 196 of the Criminal Code , the appellant filed a motion requesting a judicial order to open the sealed packet as well as copies of the police tapes of his private communications. In his motion, the appellant stated that he intended to file a civil action to obtain compensation for the damage he claimed to have suffered as a result of the police action against him. He also stated that he had reasonable grounds to believe that the application for authorization did not refer to his status as a lawyer, contrary to s. 185(1)(e) of the Code. Finally, he claimed that the electronic surveillance conducted against him did not comply with the requirements of Part VI of the Code. The judge examined the documents in the sealed packet in camera and assured the appellant that his status as a lawyer was mentioned therein. He also said that the appellant’s motion was premature since he was neither an accused nor a plaintiff in a civil action. The judge denied the motion, holding that where the request for access under s. 187(1)(a)(ii) of the Code originates from a non‑accused target, the Code requires that such authorizations remain confidential. He left open the possibility that such a request might be entertained by the judge who presided over the civil suit. This Court granted leave to appeal from that judgment pursuant to s. 40(1) of the Supreme Court Act .
Held: The appeal should be allowed.
Per Lamer C.J. and Gonthier, McLachlin and Iacobucci JJ.: A judge is entitled to examine the contents of the packet in private for the restricted purpose of adjudicating a s. 187(1) (a)(ii) application. The confidentiality interests underlying the provision are simply not triggered when a competent judicial authority examines the contents of the packet in camera. As illustrated in this instance, such an examination would be helpful in promptly disposing of a motion for access where the alleged deficiencies of the application are simply not borne out on the face of the application. If an order for access is not issued, the relevant materials would be returned to the packet, with no disclosure of the contents to parties.
Since the advent of the Charter , the target of a wiretap authorization who subsequently faces criminal prosecution on the basis of intercepted communications is automatically entitled to gain access to the materials within the packet, subject only to the Crown's right to apply to have the materials edited. The discretion vested under s. 187(1) (a)(ii) of the Criminal Code must be exercised systematically in favour of access to give effect to an accused's right to full answer and defence under s. 7 of the Charter and an accused's right to challenge the admission of potentially unlawfully intercepted evidence under ss. 8 and 24(2) of the Charter . However, the pre‑Charter interpretation of s. 187(1) (a)(ii) continues to operate in relation to non‑accused. Where a former surveillance target applies for access in the absence of any threat of criminal prosecution, different considerations apply. Parliament clearly intended that the state's pressing interest in confidentiality of the packet should represent the dominant consideration in the exercise of this discretion. In light of the crucial fact that a competent judge will have already examined and approved a surveillance application prior to the wiretap, Canadian courts have properly concluded that the statutory discretion to open the packet should normally only be exercised upon a preliminary showing which suggests that the initial authorization was obtained in an unlawful manner. An interested non‑accused party who seeks access to the packet must thus demonstrate more than a mere suspicion of police wrongdoing; he will normally be compelled to produce some evidence which suggests that the authorization was procured through fraud or wilful non‑disclosure by the police.
The settled, purposive interpretation of s. 187(1) (a)(ii) with respect to non‑accused targets should not be altered in light of s. 8 of the Charter . While an individual has an important and vital right to the disclosure of governmental information in order to effectuate his substantive constitutional rights under ss. 7 and 8 of the Charter , this right does not compel absolute access to confidential information held by the state where the individual does not face the jeopardy of the criminal process. The existing judicial interpretation of s. 187(1) (a)(ii) strikes an appropriate balance between the individual's interest in contesting the validity of an authorized interception of communications and the public's interest in the confidentiality of law enforcement techniques and police informers. Under Part VI, where an individual receives notice of an interception under s. 196(1) , a judge will have already examined the original wiretap application and supporting affidavits and have concluded that they demonstrate reasonable and probable grounds for a search. In light of the existence of prior authorization in addition to the other procedural and substantive protections contained within Part VI of the Code, Canadian courts have adequately balanced the relevant interests in concluding that the statutory discretion to open the packet should normally only be exercised in favour of a non‑accused target upon some evidence that the initial authorization was obtained in an unlawful manner. Accordingly, under a purposive and contextual interpretation of the Charter , the prevailing interpretation of the judicial power to open a sealed packet under s. 187(1) (a)(ii), as applied to a request for access by a non‑accused target of electronic surveillance, does not offend s. 8 .
Here, the judge erred in automatically rejecting the appellant's motion to open the sealed packet. A non‑accused target may apply for an order under s. 187(1) (a)(ii) and bring such a motion before the filing of his civil suit. The judge failed to accord the appellant an adequate opportunity to make a preliminary showing which tends to indicate that the initial authorization was obtained in an unlawful manner.
In light of the legislative history of the similar wording of s. 187(1.3) of the Code, adopted in 1993, the scope and content of judicial discretion under that section are identical to the discretion vested by its predecessor, s. 187(1) (a)(ii). Accordingly, the result and reasoning in this case would have been the same had the appellant's motion been governed by s. 187(1.3). Parliament adopted a mandatory regime of disclosure with editing for an accused person, but specifically chose to preserve a discretionary regime of disclosure in addressing applications by non‑accused persons.
Outside a criminal proceeding, the Criminal Code does not provide a former surveillance target with any avenue for disclosure of the recording materials. The judicial power under s. 187(1) (a)(ii) to grant disclosure to the packet does not encompass disclosure of the recording materials. Notwithstanding the silence of the Code, however, if the non‑accused target is successful in securing access to the packet under s. 187(1) (a)(ii), he may then seek access to the recording materials upon a new motion in a subsequent proceeding. The procedure outlined by La Forest and Sopinka JJ. for subsequent disclosure of the recording materials is substantially adopted. This procedure, by establishing a mechanism for disclosure which reflects the actual relevance of the recording materials to an action for damages for unlawful interception of private communications, reaches an appropriate balance between the individual's interest in vindicating his rights under ss. 8 and 24(1) of the Charter and the state's proprietary interest in the fruits of its confidential investigations. In this case, since a non‑accused target may only seek disclosure of the recording materials in a separate proceeding following the grant of an order opening the sealed packet, the judge did not err in denying at this stage the appellant's request for access to the tapes and transcripts produced as a result of the electronic surveillance.
Per L’Heureux‑Dubé J.: The reasons and result of Lamer C.J. are agreed with. In addition, the rationale underlying the minority opinions in Durette, Dersch and Garofoli should also apply a fortiori to a target who is not an accused.
Per La Forest, Sopinka, Cory and Major JJ.: Since the advent of the Charter , a person who was under electronic surveillance and was subsequently charged has been automatically entitled to access to the sealed packet, subject to the editing power of the judge to whom the application was made. This right to access derives both from s. 8 of the Charter , which guarantees everyone the right to be secure against unreasonable search or seizure, and from ss. 7 and 11 (d), which guarantee an accused the right to make full answer and defence. However, the wording of the former s. 187 of the Criminal Code does not limit access to the sealed packet to accused targets. Rather, in enacting s. 187 , Parliament intended to confer an unlimited discretion on the courts, leaving it to them to determine the circumstances in which access to the sealed packet is justified and the extent to which it should be authorized. Section 8 of the Charter gives non‑accused targets, like accused targets, a constitutional right of access to the sealed packet, subject to the power of the judge to whom the application for access is made to edit the documents for reasons of public policy and public interest. Accordingly, because of the constitutional imperatives of s. 8 , a judge to whom a non‑accused target applies for access can exercise his or her discretion judicially only by granting access to the sealed packet, subject to the judge’s power to edit. The scope of the protection conferred on everyone by s. 8 cannot, in this context, vary depending on whether the person who has that protection is or is not an accused.
Nor does the new wording of s. 187 adopted in 1993 limit access to the sealed packet to accused targets. Based on a comparative analysis of the old and new wordings and an examination of the immediate legislative context, there is no doubt as to Parliament’s intention. In making these amendments, Parliament chose to impose a legislative framework on the exercise of a discretion. However, it did so only with respect to applications for access made by accused targets, while opting to allow the judicial discretion conferred by the legislation with respect to applications by other persons to remain unlimited.
The right of a target, whether accused or non‑accused, to access to the sealed packet is not absolute, even when considered from a constitutional perspective, and can be limited when it is in the public interest to do so. Thus, documents in the sealed packet can be edited in accordance with the criteria approved and procedure outlined in Garofoli. Although an accused target’s right of access arises from a combination of ss. 7 and 11 (d) of the Charter as well as from s. 8 , this does not mean that an accused target has a broader right of access than a non‑accused target. The nature of the right of access to documents in the sealed packet is the same whether it derives from s. 8 or from a combination of ss. 7 and 11 (d). In both cases, the target has the constitutional right to determine whether the interception complies with the scheme established by Parliament in the Criminal Code .
Recordings resulting from a wiretap are not placed in the sealed packet and access to the sealed packet therefore does not entail access to the recordings. However, if after the packet is opened and the authorization’s validity is examined the authorization is declared invalid by the judge, the wiretap carried out pursuant to the authorization will be unlawful and will amount to an unreasonable search or seizure prohibited by s. 8 of the Charter , which will give rise to a remedy under s. 24(1) of the Charter . The general principle of confidentiality applicable to wiretaps ceases to take precedence when the state fails to meet the strict conditions that ensure the wiretap complies with the Charter , and in such circumstances it is appropriate and fair to grant access to the recordings either under s. 24(1) or to enable the target to prove the extent of the damage suffered in order to support an application for damages. Once the target shows to the court’s satisfaction that the wiretap was unauthorized, he or she should therefore be given access to any communications unlawfully intercepted by the state, by way of access to the recordings themselves, to transcripts or to any other equivalent source. Such access would be limited to conversations in which the target took part. Moreover, the state should be required to destroy any trace of such unlawful interceptions in its possession.
If the court finds that the authorization complies with the provisions of the Criminal Code and that the non‑accused target’s arguments based on the contents of the sealed packet do not disclose any other cause of unlawfulness, s. 8 of the Charter then requires a further examination of whether the wiretap complied with the authorization. The rights guaranteed in s. 8 will be adequately protected if the non‑accused target is granted indirect access to the recordings. The strict confidentiality applicable to wiretaps requires that the courts be cautious and exercise restraint when the issue of going beyond the sealed packet arises. Thus, even at that stage, a non‑accused target will only rarely be given access to the recordings, since it is only through affidavits and relevant documents and by cross‑examining the affiants that the target will obtain the information needed to challenge the wiretap’s validity. With certain exceptions, the target will not be given access to the recordings to show that his or her constitutional rights were violated. If the court declares that the wiretap is unlawful because it did not comply with the authorization, the target may then be granted access to the recordings, as in the case of an unlawful authorization. Access will be limited to unlawful interceptions to which the target was a party. Finally, an accused target’s right to make full answer and defence is provided for in s. 189(5) of the Criminal Code . In addition to this right under the Code, the prosecution may have broader disclosure obligations in the case of an application for production based on Stinchcombe.
In the present case, the appellant’s application for access to the recordings is premature. Access to the recordings is not necessary to prove that his right under s. 8 of the Charter was infringed, since such an infringement may result from the unlawfulness of the authorization itself, which can be determined by means of access to the sealed packet. The recordings do not come into play until after the authorization is declared valid, when the issue becomes whether the wiretap complied with the authorization.
Cases Cited
By Lamer C.J.
Distinguished: Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; referred to: Re Meltzer and The Queen (1986), 29 C.C.C. (3d) 266, aff'd [1989] 1 S.C.R. 1764; R. v. Kumar (1987), 35 C.C.C. (3d) 477, leave to appeal denied, [1987] 1 S.C.R. ix; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Swain, [1991] 1 S.C.R. 933; Schachter v. Canada, [1992] 2 S.C.R. 679; Lyons v. The Queen, [1984] 2 S.C.R. 631; R. v. Thompson, [1990] 2 S.C.R. 1111; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Durette, [1994] 1 S.C.R. 469; In re Lochiatto, 497 F.2d 803 (1974); Application of the United States for an Order Authorizing the Interception of Wire Communications, 413 F.Supp. 1321 (1976); In the Matter of a Warrant Authorizing the Interception of Oral Communications, 708 F.2d 27 (1983); Application of the United States for an Order Authorizing the Interception of Oral Communications at the Premises Known as Calle Mayaguez 212, Hato Rey, Puerto Rico, 723 F.2d 1022 (1983); Re Royal Commission Inquiry into the Activities of Royal American Shows Inc. (No. 3) (1978), 40 C.C.C. (2d) 212; Re Miller and Thomas and The Queen (1975), 23 C.C.C. (2d) 257; Re Stewart and The Queen (1976), 30 C.C.C. (2d) 391; Re Regina and Kozak (1976), 32 C.C.C. (2d) 235; R. v. Haslam (1976), 3 C.R. (3d) 248; R. v. Welsh and Iannuzzi (No. 6) (1977), 32 C.C.C. (2d) 363; R. v. Gill (1980), 18 C.R. (3d) 390; Wilson v. The Queen, [1983] 2 S.C.R. 594; Re Zaduk and The Queen (1977), 37 C.C.C. (2d) 1; Re Zaduk and The Queen (1978), 38 C.C.C. (2d) 349, aff’d (1979), 46 C.C.C. (2d) 327; Application of the United States for an Order Authorizing the Interception of Wire and Oral Communications, 495 F.Supp. 282 (1980); Applications of Kansas City Star, 666 F.2d 1168 (1981); Petition of Leppo, 497 F.2d 954 (1974); R. v. Wiggins, [1990] 1 S.C.R. 62; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; McGrady, Askew & Fiorillo v. Canada, [1995] 7 W.W.R. 305; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Egger, [1993] 2 S.C.R. 451; R. v. Chaplin, [1995] 1 S.C.R. 727; R. v. O'Connor, [1995] 4 S.C.R. 411; Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494; Bisaillon v. Keable, [1983] 2 S.C.R. 60; R. v. Scott, [1990] 3 S.C.R. 979; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Laba, [1994] 3 S.C.R. 965; R. v. Pontes, [1995] 3 S.C.R. 44; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; 143471 Canada Inc. v. Quebec (Attorney General), [1994] 2 S.C.R. 339; R. v. Grant, [1993] 3 S.C.R. 223; Carey v. Ontario, [1986] 2 S.C.R. 637.
.
By L’Heureux‑Dubé J.
Referred to: R. v. Durette, [1994] 1 S.C.R. 469; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Garofoli, [1990] 2 S.C.R. 1421.
By La Forest and Sopinka JJ.
Applied: Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Garofoli, [1990] 2 S.C.R. 1421; referred to: R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Durette, [1994] 1 S.C.R. 469; R. v. Parmar (1987), 34 C.C.C. (3d) 260; R. v. Lachance, [1990] 2 S.C.R. 1490; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Thompson, [1990] 2 S.C.R. 1111; R. v. Stinchcombe, [1991] 3 S.C.R. 326.
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. 27.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 11 (d), 24 .
Civil Code of Québec, S.Q. 1991, c. 64, arts. 35, 36(2), 1457.
Criminal Code, R.S.C., 1985, c. C‑46, ss. 122 , 184.1 [ad. 1993, c. 40, s. 4], 185(1)(e), 186(1), 187 [am. c. 27 (1st Supp.), s. 24 ; now rep. & sub. 1993, c. 40, s. 7], 189(1) [rep. 1993, c. 40, s. 10], (5) [am. idem], 190, 193(2)(c), 196(1).
Criminal Law Amendment Act, 1977, S.C. 1976‑77, c. 53.
Crown Liability Act, R.S.C. 1970, c. C‑38, s. 7.2 [en. 1973‑74, c. 50, s. 4].
Crown Liability and Proceedings Act, R.S.C., 1985, c. C‑50 [am. 1990, c. 8, s. 21], s. 17(1) .
Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90‑351, Title III, § 802 [now 18 U.S.C. §§ 2510‑20 (1994)].
Protection of Privacy Act, S.C. 1973‑74, c. 50 [am. 1976‑77, c. 53], ss. 2, 4.
Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40(1) [am. 1990, c. 8, s. 37].
Authors Cited
Bellemare, Daniel A. L'écoute électronique au Canada. Montréal: Yvon Blais, 1981.
Canada. Canadian Committee on Corrections. Toward Unity: Criminal Justice and Corrections. Ottawa: Queen’s Printer, 1969.
Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Second Report. Freedom and Security under the Law, vol. 1. Ottawa: The Commission, 1981.
Canada. Solicitor General. Annual Report on the Use of Electronic Surveillance. Ottawa: Solicitor General, 1993.
Carr, James G. The Law of Electronic Surveillance, vol. 2. New York: Clark Boardman, 1986 (loose‑leaf updated 1996, release 18).
Chorney, N. M. “Wiretapping and Electronic Eavesdropping” (1965), 7 C.L.Q. 434.
Cohen, Stanley A. Invasion of Privacy: Police and Electronic Surveillance in Canada. Toronto: Carswell, 1983.
Fishman, Clifford S. Wiretapping and Eavesdropping. Rochester: Lawyers Co‑operative Publishing Co., 1978.
Jardine, James W. "Defence Attacks". In Continuing Legal Education Society of British Columbia, Search & Seizure and Wiretap. Vancouver: Continuing Legal Education Society of British Columbia, 1991, c. 6.2.
Tanovich, David M. “When does Stinchcombe Demand that the Crown Reveal the Identity of a Police Informer?” (1995), 38 C.R. (4th) 202.
United States. Senate Report No. 1097, 90th Cong., 2nd Sess. Reprinted in [1968] U.S.C. Cong. & Admin. News 2112.
Watt, David. Law of Electronic Surveillance in Canada. Toronto: Carswell, 1979.
APPEAL from a judgment of the Quebec Superior Court, rendered on May 19, 1993, dismissing the appellant’s motion under s. 187 of the Criminal Code to have the sealed packet in the court’s custody opened. Appeal allowed.
Christian Desrosiers, for the appellant.
Stella Gabbino, for the respondent.
Bernard Laprade, for the intervener the Attorney General of Canada.
Margaret A. Ross and Todd J. Burke, for the intervener the Canadian Bar Association.
//The Chief Justice//
The judgment of Lamer C.J. and Gonthier, McLachlin and Iacobucci JJ. was delivered by
1 The Chief Justice -- Part VI of the Criminal Code, R.S.C., 1985, c. C-46 (since amended by S.C. 1993, c. 40), permits law enforcement officials to obtain judicial authorization for the electronic surveillance (a "wiretap") of a specified individual (the "target") upon the filing of an application and supporting affidavits which establish reasonable and probable grounds for intercepting the individual's private communications. Following judicial consideration of the application, the materials are deemed "confidential" and are placed in a "sealed packet" pursuant to s. 187(1) of the Code. However, under s. 187(1) (a)(ii) (now revised as s. 187(1.3)), a designated judge is vested with the discretionary authority to open the packet and grant access to its contents. In Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, a majority of this Court held that the target of a wiretap authorization who subsequently faces criminal prosecution on the basis of intercepted communications is automatically entitled to gain access to the materials within the packet, subject only to the Crown's right to apply to have the materials edited. More specifically, the majority held, inter alia, that the judicial discretion vested under s. 187(1) (a)(ii) must be automatically exercised in favour of an accused target in light of an accused's right to full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms . The narrow issue presented by this appeal concerns whether a non-accused target may similarly seek and obtain automatic access to the sealed packet for the purpose of examining its contents in the hopes of grounding a claim for damages for the unlawful interception of private communications at private law or statute, or under ss. 8 and 24(1) of the Charter .
2 The appellant was the target of an authorized wiretap in February 1993 as part of a larger police investigation into the leak of confidential government documents. To date, no criminal charges have been laid against him. The appellant, hoping to pursue an action in damages for an unlawful wiretap search, filed a motion under s. 187(1) (a)(ii) for access to the sealed packet. In the same motion, the appellant sought disclosure of the actual tape recordings produced by the wiretap and any existing transcripts of his intercepted communications (the "recording materials"). My colleagues La Forest and Sopinka JJ. would conclude that under both s. 187(1) (a)(ii) and its revised equivalent, s. 187(1.3), a judge must automatically grant the appellant's motion for access to the contents of the packet as an extension of Dersch. They would further find that the judge may grant the appellant access to the recording materials upon a demonstration that the wiretap was illegal.
3 With respect, I am unable to share their views. While I would also allow the appeal in this instance, I profoundly disagree with their interpretation of a non-accused target's right to examine the sealed packet under the Criminal Code and the Charter . The existing legislative and judicial authorities on s. 187(1) (a)(ii) strongly indicate that Parliament intended the contents of the packet to remain presumptively "confidential" in the interests of preserving the secrecy of police investigative techniques and police informers. For a wiretap to be executed under Part VI of the Code, a judge will have already concluded that the application and supporting affidavits, on their face, raise reasonable and probable grounds for the interception of a subject's private communications. However, as an additional safeguard, Parliament vested a designated judge with a broad discretion to open and selectively distribute the contents of the packet. But where a former surveillance target applies for access in the absence of any threat of criminal prosecution, Parliament clearly intended that the state's pressing interest in confidentiality of the packet should represent the dominant consideration in the exercise of this discretion. Accordingly, previous courts have properly concluded that this discretion to open the packet should not be exercised upon the mere suspicion of wrongdoing by the state; rather, judicial discretion under s. 187(1) (a)(ii) should only be exercised on the basis of "good cause", i.e., upon a preliminary showing which suggests that the original authorization was obtained unlawfully.
4 Thus, in my view, where a non-accused target has applied for a judicial order under s. 187(1) (a)(ii) (or under the current s. 187(1.3)), a judge should normally only exercise his or her discretion in favour of granting access upon the presentation of some evidence that law enforcement officials engaged in fraud or wilful non-disclosure in obtaining the authorization. If the target is successful in securing access to the packet under s. 187(1) (a)(ii), he or she may only then seek access to the recording materials upon a new motion in a subsequent proceeding.
5 I am not persuaded that this settled, purposive interpretation of s. 187(1) (a)(ii) ought to be altered in light of s. 8 of the Charter . In Dersch, this Court held that notwithstanding the existing interpretation of the predecessor of s. 187(1) (a)(ii), where the wiretap target faces subsequent criminal prosecution, this statutory discretion must be exercised systematically in favour of access to give effect to an accused's right to full answer and defence under s. 7 of the Charter and an accused's right to challenge the admission of potentially unlawfully intercepted evidence under ss. 8 and 24(2) of the Charter . But where a target faces no threat of imprisonment, Dersch clearly indicated that "different considerations" apply. Under such circumstances, these different "considerations" persuade me that a non-accused target is not constitutionally entitled to examine the contents of the packet in the absence of some evidence which suggests that the original authorization was unlawfully granted. While an individual has an important and vital right to the disclosure of governmental information in order to effectuate his or her substantive constitutional rights under ss. 7 and 8 of the Charter , it is my belief that this right does not compel absolute access to confidential information held by the state where the individual does not face the jeopardy of the criminal process.
I. Factual and Procedural Background
6 The appellant, a lawyer, worked for the Secrétariat aux affaires intergouvernementales canadiennes (“SAIC”) up until September 28, 1992. Shortly following the end of his employment, an article appeared in the national press which revealed certain confidential information regarding the participation of the SAIC in constitutional negotiations leading up to the Charlottetown Accord. In the course of its ensuing investigation regarding the leaked information, the Sûreté du Québec suspected that the appellant had removed documents from the SAIC in violation of s. 122 of the Criminal Code (breach of trust by a public official). On the basis of evidence provided by the Sûreté, a Justice of the Peace approved a search warrant in October 1992 for the purpose of seizing an enumerated list of SAIC documents from his residence.
7 The search was executed on the morning of November 2, 1992. The appellant was promptly arrested during the search and detained at police headquarters during the day without the benefit of counsel. At the appellant's residence, the officers seized a number of documents, including a number of personal items of the appellant which were not listed in the search warrant.
8 The appellant promptly filed a motion by nature of certiorari in Superior Court for return of the documents seized during the search of his premises. As well, the appellant sought damages against the Sûreté and the individual officers involved under s. 24(1) of the Charter for an infringement of his constitutional right to counsel during the detention. On December 4, 1992, Pinard J. granted the motion in part. The motions judge ordered the officers to return a number of the seized items which fell outside the bounds of the original search warrant. In so ordering, Pinard J. concluded that parts of the search were both [translation] "unreasonable and unlawful”. In relation to the detention, the judge found that the officers did not have reasonable and probable grounds to arrest and detain the appellant. Furthermore, he concluded that the circumstances of the detention violated the appellant's constitutional right to counsel. Accordingly, Pinard J. declared that the detention of the appellant was also [translation] "unlawful, arbitrary, and unreasonable". But the motions judge declined to adjudicate the appellant's claim for damages, as the claim should have been brought in a separate action.
9 A number of months following the search, on February 11, 1993, the appellant received the following notice by mail.
[translation] On October 27, 1992, following a motion by a designated representative of the Attorney General of Quebec, pursuant to the requirements of s. 185 of the Criminal Code , a judge of the Court of Sessions of the Peace for the province of Quebec, approved an authorization which permitted the interception of your private communications in the interests of the administration of justice. This authorization was valid from October 27, 1992 to November 15, 1992, inclusive.
The purpose of this letter is to advise you of this authorization, in accordance with s. 196 of the Criminal Code .
10 On March 22, 1993, the appellant served the Attorney General of Quebec and the relevant officers with a notice of default for damages arising from both the physical search and the wiretap. However, on April 30, 1993, before filing his statement of claim for damages, the appellant filed a motion before Paul J. of the Superior Court requesting a judicial order to open the sealed packet containing the application and affidavits which were filed in support of the surveillance authorization. In the same motion, he requested copies of the police tapes of his private communications.
11 The appellant sought access to these normally confidential materials in the hope of procuring evidence which demonstrated that the wiretap did not comply with the requirements of Part VI of the Code. In support of his request for access to the packet and the tapes, the appellant submitted that he had grounds to believe that the application and affidavits failed to mention his status as a lawyer in contravention of s. 185(1)(e) of the Code. As well, he contended that he had grounds for believing that the wiretap was the product of administrative pressure from officials within the SAIC. While the appellant fails to state so explicitly in his motion, I assume more generally that it is his contention that the wiretap authorization was not justified in the "best interests of the administration of justice" in accordance with s. 186(1)(a) as the application and affidavits did not disclose reasonable and probable grounds for a wiretap
12 On May 19, 1993, Paul J. denied the appellant's motion to open the packet and to compel disclosure of the tapes. At the outset, upon examining the application in private, Paul J. dismissed the appellant's argument that the wiretap application had failed to comply with s. 185(1)(e). As he stated:
[translation] There is one thing I wanted to make sure of, namely that your allegation that you were not designated as a lawyer was not borne out in the documents relating to the application to intercept your private communications. I confirm for you . . . that you were indeed designated as a lawyer, with your business address.
13 Paul J. then turned to the substance of the appellant's motion to open and examine the contents of the sealed packet under s. 187(1) (a)(ii). While the judge took notice of this Court's ruling in Dersch regarding the right of an accused to automatic access to the sealed packet, Paul J. underscored that the appellant stood in a different position from an accused. As Paul J. explained in an exchange with the appellant:
[translation] There is nothing in Garofoli [[1990] 2 S.C.R. 1421, to support a motion for access by a non‑accused], I know Garofoli almost by heart. . . . In all the decisions, all the decisions that are to that effect. Except if you seek a review, you may have the lawfulness of a decision reviewed, but in that case it would be in the context of an accused, not in your context at all, right now there is a vacuum because you are not an accused and you have no case pending before the civil or criminal courts. . . . [Emphasis added.]
Paul J. held that where the request for access under s. 187(1) (a)(ii) originates from a non-accused target, the Code requires that such authorizations remain confidential. Accordingly, he denied the appellant's motion. However, in so doing, he left open the possibility that such a request might be entertained by the judge who presided over the civil suit:
[translation] No, no, but you will not lose any right you may have to make that argument, but you must do so before the judge who hears the case. It is there that the argument must be made and not here on a motion. So if there is a civil action or any other kind of action, you will make your request to that judge, although whether you will be successful is another matter ‑‑ that is not for me to decide. But at the present time, I must tell you that the Code applies and it remains confidential, you received notification and if there are further civil or criminal developments, then the situation will alter dramatically. At present, the situation is like that and you are not entitled to the sealed packet. Unfortunately, I must deny your motion. . . . [Emphasis added.]
14 The Criminal Code provides no appeal to a provincial court of appeal from the decision of a judge who refuses access to the sealed packet. See Re Meltzer and The Queen (1986), 29 C.C.C. (3d) 266 (B.C.C.A.), at pp. 271-72, aff'd [1989] 1 S.C.R. 1764; R. v. Kumar (1987), 35 C.C.C. (3d) 477 (Sask. C.A.), at p. 479, leave to appeal denied, [1987] 1 S.C.R. ix. The appellant thus sought leave to appeal the judgment of Paul J. as a "final or other judgment . . . of the highest court of final resort in a province" under this Court's general jurisdiction vested by s. 40(1) of the Supreme Court Act, R.S.C., 1985, c. S-26 . We granted leave. The respondent subsequently filed a motion to dismiss the appeal on January 26, 1995, but this Court denied the respondent's motion on March 6, 1995.
II. Analysis
A. Introduction
15 The appellant seeks a judicial order for disclosure of two distinct items in support of his putative civil suit: (1) the application and supporting affidavits contained within the sealed packet; and (2) the tape recordings and prepared transcripts of his intercepted communications, which are not contained within the packet, but which remain in the custody of the Crown. In light of the Code's differential treatment of these materials, I will examine these two requests separately.
16 I agree with the manner in which my colleagues La Forest and Sopinka JJ. deal with the issue of whether the appellant has sufficient standing to seek an order under s. 187(1) (a)(ii). I am also in agreement that the appellant's motion for access, dated April 30, 1993, is properly governed by s. 187(1)(a)(ii) of the Code rather than by the amended s. 187(1.3) which came into force on August 1, 1993. See An Act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act, S.C. 1993, c. 40, s. 27; SI/93-154. Furthermore, I share their view that in light of the legislative history of the similar wording of the new provision, the scope and content of judicial discretion under s. 187(1.3) are identical to the discretion vested by its predecessor. Accordingly, I would arrive at the same result and reasoning in this appeal if the appellant's motion was governed by the 1993 amendments to Part VI.
B. Access to the Sealed Packet
17 In addressing the appellant's request for access to the packet, it is essential to distinguish two conceptually distinct questions. First, it is necessary to determine the nature and content of the statutory discretion delegated by Parliament under s. 187(1) (a)(ii), as elaborated by the relevant case law. Second, one must then examine whether this judicial interpretation of the scope of the provision restricts s. 7 or 8 of the Charter , thus mandating a modification of the prevailing interpretation of this discretion in order to bring its exercise into conformity with the Charter