Wappen-Reederei GMBH & CO. K.G. v. Hyde Park (Ship)

Wappen-Reederei GMBH & CO. K.G. v. Hyde Park (Ship)
Court (s) Database
Federal Court Decisions
Date
2006-02-07
Neutral citation
2006 FC 150
File numbers
T-1681-05, T-1719-05
Notes
Reported Decision
Decision Content
Date: 20060207
Docket: T-1681-05
Citation: 2006 FC 150
Ottawa, Ontario, February 7, 2006
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
WAPPEN-REEDEREI GMBH & CO. K.G.
a body politic and corporate of Hamburg, Germany,
REEDEREI MS EILBEK GMBH & CO. K.G.
a body politic and corporate of Hamburg, Germany,
Plaintiffs
and
M.V. "HYDE PARK",
THE OWNERS AND ALL OTHERS INTERESTED
IN THE VESSEL M.V. "HYDE PARK"
Defendants
T-1719-05
BETWEEN:
HALCOT SHIPPING CORP. AND
HALCOT SHIPPING LIMITED PARTNERSHIP
Plaintiffs
and
WAPPEN-REEDEREI GMBH & CO. K.G. AND
REEDEREI MS EILBEK GMBH & CO. K.G. AND
THE VESSEL "CAST PROSPERITY" AND
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL "CAST PROSPERITY"
Defendants
REASONS FOR ORDER AND ORDER
[1] On September 26, 2005 the German container vessel "CAST PROSPERITY" collided with the Liberian chemical tanker "HYDE PARK" in the St-Lawrence River.
[2] At the time of the incident, the "CAST PROSPERITY" was equipped with a voyage data recorder (VDR), commonly referred to as a "black box", which records and stores various ship data (such as ship's position, speed, heading, etc.) including voice communications via microphones on the bridge of the ship (bridge recordings). The VDR also records radio communications with other ships and with shore stations such as the vessel traffic services (VTS). These recordings are stored on a separate band and are recorded directly off the VHF radio system (VHF recordings).
[3] In the course of its investigation into the collision, the Canadian Transportation Accident Investigation and Safety Board (TSB) seized the original and all existing copies of portions of what it considers the "on-board recordings", in particular for the period between 2200 hours and 2300 hours on September 26, 2005. These include the bridge recordings as well as the VHF recordings. The TSB refuses to release a copy of those recordings on the basis that they are privileged.
[4] The report of the TSB has not yet been issued.
[5] The plaintiffs in T-1681-05 are the owners and operators of the "CAST PROSPERITY" and they instituted an action against the owners and operators of the "HYDE PARK". Similarly, the owners and operators of the "HYDE PARK" instituted an action against the owners and operators of the "CAST PROSPERITY" in T-1719-05.
[6] The owners and operators of the "CAST PROSPERITY" filed this motion in both actions to obtain an order:
i) directing the TSB to return to them the original of the VHF recordings because such recordings do not fall under section 28 of the Canadian Transportation Accident Investigation and Safety Board Act, S.C., 1989, ch.3, as amended (the TSB Act);
ii) directing the TSB to preserve until further ordered by this Court, the original of the bridge recordings they seized and directing the TSB to provide for the parties to the two actions (T-1681-05 and T-1719-05), complete copies of these recordings within five (5) days of the order;
iii) directing that the said copies shall remain confidential and shall not be disclosed by the parties to anyone other than their respective experts, consultants, insurers and attorneys, or by their experts, consultants, insurers and attorneys to any third party, without the specific permission of the Court;
iv) directing that none of the recordings shall be filed in the Court record in whole or in part, without the specific permission of the Court.
[7] The owners and operators of the "HYDE PARK" filed written submissions in support of the motion. Hereinafter, I will refer collectively to the owners and operators of these two vessels as the parties.
[8] In accordance with section 28 of the TSB Act, notice of the said motion was given to the TSB who filed written representations and presented arguments at the hearing. The TSB's position is that section 28 of the TSB Act applies to all the recordings that were seized by them and that the facts alleged by the parties in support of their request do not establish that public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recordings.
[9] This is the first time that this issue is raised in the context of a marine casualty. The parties agree that there are only a few cases where Canadian Courts have been asked the permission to disclose cockpit recordings in the context of an air transportation casualty.
[10] The parties say that the purpose of their motion is simply to insure the preservation of certain evidence and to make it available to the parties in the two above mentioned actions. They submit that the motion would not seek, where it not contested by the TSB, any substantive determination with respect to that evidence, whether with respect to confidentiality or otherwise. They thus seek costs against the TSB.
LEGISLATION
[11] The most relevant sections of the TSB Act are sections 28 and 29. They read as follows:
Canadian Transportation Accident Investigation and Safety Board Act, S.C., 1989, c. 3:
Loi sur le Bureau canadien d'enquête sur les accidents de transport et de la sécurité des transports, L.C., 1989, ch.3 :
28. (1) In this section, "on-board recording" means the whole or any part of
(a) a recording of voice communications originating from, or received on or in,
(i) the flight deck of an aircraft,
(ii) the bridge or a control room of a ship,
(iii) the cab of a locomotive, or
(iv) the control room or pumping station of a pipeline, or
(b) a video recording of the activities of the operating personnel of an aircraft, ship, locomotive or pipeline
that is made, using recording equipment that is intended to not be controlled by the operating personnel, on the flight deck of the aircraft, on the bridge or in a control room of the ship, in the cab of the locomotive or in a place where pipeline operations are carried out, as the case may be, and includes a transcript or substantial summary of such a recording.
(2) Every on-board recording is privileged and, except as provided by this section, no person, including any person to whom access is provided under this section, shall
(a) knowingly communicate an on-board recording or permit it to be communicated to any person; or
(b) be required to produce an on-board recording or give evidence relating to it in any legal, disciplinary or other proceedings.
(3) Any on-board recording that relates to a transportation occurrence being investigated under this Act shall be released to an investigator who requests it for the purposes of the investigation.
(4) The Board may make such use of any on-board recording obtained under this Act as it considers necessary in the interests of transportation safety, but, subject to subsection (5), shall not knowingly communicate or permit to be communicated to anyone any portion thereof that is unrelated to the causes or contributing factors of the transportation occurrence under investigation or to the identification of safety deficiencies.
(5) The Board shall make available any on-board recording obtained under this Act to
(a) [Repealed, 1998, c. 20, s. 17]
(b) a coroner who requests access thereto for the purpose of an investigation that the coroner is conducting; or
(c) any person carrying out a coordinated investigation under section 18.
(6) Notwithstanding anything in this section, where, in any proceedings before a court or coroner, a request for the production and discovery of an on-board recording is made, the court or coroner shall
(a) cause notice of the request to be given to the Board, if the Board is not a party to the proceedings;
(b) in camera, examine the on-board recording and give the Board a reasonable opportunity to make representations with respect thereto; and
(c) if the court or coroner concludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording by virtue of this section, order the production and discovery of the on-board recording, subject to such restrictions or conditions as the court or coroner deems appropriate, and may require any person to give evidence that relates to the on-board recording.
(7) An on-board recording may not be used against any of the following persons in disciplinary proceedings, proceedings relating to the capacity or competence of an officer or employee to perform the officer's or employee's functions, or in legal or other proceedings, namely, air or rail traffic controllers, marine traffic regulators, aircraft, train or ship crew members (including, in the case of ships, masters, officers, pilots and ice advisers), airport vehicle operators, flight service station specialists, persons who relay messages respecting air or rail traffic control, marine traffic regulation or related matters and persons who are directly or indirectly involved in the operation of a pipeline.
(8) For the purposes of subsection (6), "court" includes a person or persons appointed or designated to conduct a public inquiry into a transportation occurrence pursuant to this Act or the Inquiries Act.
29. (1) In this section, "communication record" means the whole or any part of any record, recording, copy, transcript or substantial summary of
(a) any type of communications respecting air traffic control or related matters that take place between any of the following persons, namely, air traffic controllers, aircraft crew members, airport vehicle operators, flight service station specialists and persons who relay messages respecting air traffic control or related matters,
(b) any type of communications respecting rail traffic control or related matters that take place between any of the following persons, namely, rail traffic controllers, train crew members, maintenance of way employees, signal maintainers, vehicle operators and persons who relay messages respecting rail traffic control or related matters,
(c) any type of communications respecting marine traffic regulation or related matters that take place between any of the following persons, namely, marine traffic regulators, persons designated under subsection 58(1) or section 76, 99 or 106 of the Canada Marine Act, ship crew members (including masters, officers, pilots and ice advisers), and staff of Coast Guard radio stations, rescue coordination centres and subcentres and harbour master offices,
(d) any type of communications respecting maritime distress, maritime safety or related matters
(i) that take place between any of the following persons, namely, Coast Guard radio station operators, ship crew members (including masters, officers, pilots and ice advisers), and staff of vessel traffic services centres, persons designated under subsection 58(1) or section 76, 99 or 106 of the Canada Marine Act, rescue coordination centres and subcentres, harbour master offices and ship agents' offices, or
(ii) that take place between any person on shore and a ship via a Coast Guard radio station, or
(e) any type of communication respecting the operation of a pipeline that takes place between persons who are control room personnel, pumping station personnel, operating personnel or members of a maintenance crew or an emergency response crew.
(2) to (5) [Repealed, 1998, c. 20, s. 18]
(6) A communication record obtained under this Act shall not be used against any person referred to in subsection (1) in any legal proceedings or, subject to any applicable collective agreement, in any disciplinary proceedings.
28. (1) Au présent article, « enregistrement de bord » s'entend de tout ou partie soit des enregistrements des communications orales reçues par le poste de pilotage d'un aéronef, par la passerelle ou toute salle de contrôle d'un navire, par la cabine d'une locomotive ou par la salle de contrôle ou de pompage d'un pipeline, ou en provenant, soit des enregistrements vidéo des activités du personnel assurant le fonctionnement des aéronefs, navire, locomotive ou pipeline, qui sont effectués à ces endroits à l'aide du matériel d'enregistrement auquel le personnel n'a pas accès. Y sont assimilés la transcription ou le résumé substantiel de ces enregistrements.
(2) Les enregistrements de bord sont protégés. Sauf disposition contraire du présent article, nul ne peut, notamment s'il s'agit de personnes qui y ont accès au titre de cet article :
a) sciemment, les communiquer ou les laisser communiquer;
b) être contraint de les produire ou de témoigner à leur sujet lors d'une procédure judiciaire, disciplinaire ou autre.
(3) Les enregistrements de bord relatifs à un accident de transport faisant l'objet d'une enquête prévue par la présente loi sont mis à la disposition de l'enquêteur qui en fait la demande dans le cadre de sa mission.
(4) Le Bureau peut utiliser les enregistrements de bord obtenus en application de la présente loi comme il l'estime nécessaire dans l'intérêt de la sécurité des transports, mais, sous réserve du paragraphe (5), il ne peut sciemment communiquer ou laisser communiquer les parties de ces enregistrements qui n'ont aucun rapport avec les causes et facteurs de l'accident de transport faisant l'objet de l'enquête ou avec les manquements à la sécurité.
(5) Le Bureau est tenu de mettre les enregistrements de bord obtenus en application de la présente loi à la disposition :
a) [Abrogé, 1998, ch. 20, art. 17]
b) des coroners qui en font la demande pour leurs enquêtes;
c) des personnes qui participent aux enquêtes coordonnées visées à l'article 18.
(6) Par dérogation aux autres dispositions du présent article, le tribunal ou le coroner qui, dans le cours de procédures devant lui, est saisi d'une demande de production et d'examen d'un enregistrement de bord examine celui-ci à huis clos et donne au Bureau la possibilité de présenter des observations à ce sujet après lui avoir transmis un avis de la demande, dans le cas où celui-ci n'est pas partie aux procédures. S'il conclut, dans les circonstances de l'espèce, que l'intérêt public d'une bonne administration de la justice a prépondérance sur la protection conférée à l'enregistrement par le présent article, le tribunal ou le coroner en ordonne la production et l'examen, sous réserve des restrictions ou conditions qu'il juge indiquées; il peut en outre enjoindre à toute personne de témoigner au sujet de cet enregistrement.
(7) Il ne peut être fait usage des enregistrements de bord dans le cadre de procédures disciplinaires ou concernant la capacité ou la compétence d'un agent ou employé relativement à l'exercice de ses fonctions, ni dans une procédure judiciaire ou autre contre les contrôleurs de la circulation aérienne, les régulateurs de trafic maritime, les aiguilleurs, le personnel de bord des aéronefs, navires -- y compris, dans ce dernier cas, les capitaines, officiers, pilotes et conseillers glaciologues -- ou trains, les conducteurs de véhicules d'aéroport, les spécialistes de l'information de vol, les personnes qui relaient les renseignements relatifs au contrôle de la circulation aérienne ou ferroviaire ou du trafic maritime ou aux questions connexes et les personnes qui assurent le fonctionnement des pipelines.
(8) Pour l'application du paragraphe (6), ont pouvoirs et qualité de tribunal les personnes nommées ou désignées pour mener une enquête publique sur un accident de transport conformément à la présente loi ou à la Loi sur les enquêtes.
29. (1) Au présent article, « enregistrement contrôle » s'entend de tout ou partie de l'enregistrement, de la transcription ou d'un résumé appréciable de toute communication :
a) relative au contrôle de la circulation aérienne ou aux questions connexes, entre les contrôleurs de la circulation aérienne, les équipages d'aéronefs, les conducteurs de véhicules d'aéroport, les spécialistes de l'information de vol ou les personnes qui relaient les renseignements relatifs au contrôle de la circulation aérienne ou aux questions connexes;
b) relative au contrôle de la circulation ferroviaire ou aux questions connexes, entre les aiguilleurs, le personnel de bord, les préposés à l'entretien des voies ou de la signalisation, les conducteurs de véhicules ou les personnes qui relaient les renseignements relatifs au contrôle de la circulation ferroviaire ou aux questions connexes;
c) relative au contrôle du trafic maritime ou aux questions connexes, entre les régulateurs du trafic maritime, les personnes désignées en vertu du paragraphe 58(1) ou des articles 76, 99 ou 106 de la Loi maritime du Canada, les équipages - y compris les capitaines, officiers, pilotes et conseillers glaciologues - ou le personnel des stations radio de la garde côtière, des centres et sous-centres de coordination du sauvetage ou des bureaux de capitaine de port;
d) relative à la détresse ou à la sécurité en mer ou aux questions connexes, entre soit les opérateurs de station radio de la garde côtière, les personnes désignées en vertu du paragraphe 58(1) ou des articles 76, 99 ou 106 de la Loi maritime du Canada, les équipages - y compris les capitaines, officiers, pilotes et conseillers glaciologues - ou le personnel des centres de services de trafic maritime, des centres et sous-centres de coordination du sauvetage ou des bureaux de capitaine de port ou d'agent maritime, soit une personne sur la côte et un navire par l'intermédiaire d'une station radio de la garde côtière;
e) relative au fonctionnement des pipelines, entre le personnel de la salle de contrôle ou de pompage et les personnes qui assurent le fonctionnement ou l'entretien de ceux-ci ou les interventions d'urgence.
(2) à (5) [Abrogés, 1998, ch. 20, art. 18]
(6) Dans les procédures judiciaires ou, sous réserve de la convention collective applicable, dans le cadre de procédures disciplinaires, il ne peut être fait usage contre les personnes mentionnées au paragraphe (1) des enregistrements contrôle obtenus en application de la présente loi.
[12] The earlier versions of sections 28 and 29 of the TSB Act are in Annex 1.
ISSUES
i) does section 28 apply to the VHF recordings or the bridge recordings as these recordings were not made using equipment that is on the bridge or in the control room of the ship?
ii) should the Court use its discretion under subsection 28(6) to order the production and discovery of any portion of the recordings seized by the TSB?
[13] I do not believe that it is necessary at this stage to determine the other issues raised by the TSB and the parties. However, I note that the TSB has argued that the VTS recordings obtained by the parties directly from VTS are also privileged and should not have been communicated to the parties. They should not be used in these proceedings. My comments with respect to the VHF recordings and the application of sections 28 and 29 will certainly bring some light on this further issue.
[14] Also, the parties and the TSB disagree on the proper interpretation to be given to subsection 28(7) of the TSB Act. The TSB says that it applies to any proceedings including proceedings that do not include any of the persons referred to in that section as a party. The parties submit that this subsection should be constructed restrictively and applies only to proceedings against such persons. Even though this issue has not been addressed so far by the Courts, this case only requires that the Court discuss the interpretation of subsection 29(6).
[15] Finally, at the hearing, the parties also argued that they should be entitled to listen to the recordings with the Court because the TSB Act speaks of an examination in camera - à huis-clos. In their view, this expression only permits the exclusion of the public; it does not mean that the Court is entitled to review the evidence in the absence of a party or ex parte (Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3).
[16] The TSB disagrees and says that it would be contrary to the scheme of the Act and the intention of the legislator to communicate to the parties and their counsel the privileged information before the Court has actually made a ruling authorizing such communications pursuant to subsection 28(6). The TSB submits that this interpretation appears to have been adopted by the Courts in the past for, to its knowledge, whenever a Court was called upon to review privileged information under subsections 28(6) or 30(5) of the TSB Act (or their predecessors), they examined it alone in their chambers.
[17] It also appears that this interpretation is consistent with how Courts have dealt with other types of privileged information in the context of requests for disclosure (see for example the process set out in sections 37 and 38 of the Canada Evidence Act).
[18] However, at the end of the hearing, the parties advised the Court that it need not decide this point today for they had agreed, for the purpose of this motion only, that the Court could listen to these recordings alone in its chambers.
[19] Before reviewing the aforementioned issues to be decided, it is useful to look at the general context (national and international) and at the objectives of the TSB and the TSB Act.
BACKGROUND
[20] Prior to June 1989, when the TSB Act was enacted, there was no coordinated independent multimodal accident investigation entity in Canada. Each mode of transportation had its own regime.
[21] When one compares the Canadian Aviation Safety Board Act, R.S.C., 1985, c. 12 (CASB Act) with the 1989 version of the TSB Act, it becomes evident that the statutory regime in place for the investigation of aviation casualties was the model used for the new multimodal accident investigation Board created by the TSB Act, particularly in respect of protection of information and evidence gathered by the TSB during an investigation.
[22] The TSB Act provided that after 3 years of operation, an independent commission would assess its effect on the safety of transportation in all the modes it covered. This review was completed in January 1994. The report of the Commission entitled "Advancing Safety" is useful because it reviews the historical themes which influenced the design of the TSB and the policy reasons behind many of the provisions that the Court now has to construe.
[23] The main objective of the TSB is described at section 7 of the TSB Act. It is to advance transportation safety in federally regulated elements of the marine, rail, pipeline and air transportation systems by:
a) conducting independent investigations and when necessary, public inquiries, and to select a transportation occurrence in order to make findings as to their causes and contributing factors;
b) identifying safety deficiencies as evidence by transportation occurrences;
c) making recommendations designed to eliminate or reduce any such safety deficiencies; and
d) reporting publicly on its investigations and on the findings in relation thereto.
[24] Subsection 7(2) specifies that it is not the TSB's function to assign fault or determine civil or criminal liability.
[25] But, "(...) human failings are often involved, there is tension between the need to get at the truth to avoid future danger and the concern of those involved that they may be held to blame if they reveal facts which point to their own mistakes".[1]
[26] The TSB's investigators are given diverse powers such as the power to compel a person to produce information or to give a statement. They may require a person to submit to a medical examination. They may search and seize anything involved or likely to be involved in a transportation occurrence. They may require a physician or practitioner to provide health information concerning a patient that is relevant to their investigation and they even have the right to require the person having custody of the body of a deceased person to permit the performance of an autopsy or a medical examination that may be relevant to the conduct of their investigation.
[27] It is in that context that Parliament has chosen to create a complex set of rules about how the TSB and others can use the information it collects during its investigations. As mentioned in Advancing Safety (at page 154), "most fact-finding bodies, including Courts, are content with general rules about the use of information but the TSB Act is unusual in its detailed and different treatment of various types of information" such as witness statements (section 30), draft reports and representations of interested parties (subsections 24(3) and 24(4.1)), on-board recordings (section 28), communication records (section 29) and reports of transportation occurrences and the identity of the person who reports such occurrences (section 31). The Act also provides that an investigator is not a competent or compellable witness in any proceedings unless the Court ordered it for a special cause (section 32) and that the opinion of a member of the TSB or an investigator is not admissible in evidence in any legal, disciplinary or other proceedings (section 33).
[28] Although the need to identify safety deficiencies as efficiently as possible was the prime public interest motivating the introduction of all such provisions, it appears from pages 156 and 157 of the Commission's report that "(...) the introduction of cockpit voice recorders was based on what was in effect a social contract between flight crew and their employers and regulators, granting this right was an extraordinary concession which should not go any further". According to the evidence put before the Commission[2], "flight crews considered the introduction of technology to record cockpit conversations an extraordinary invasion of workplace privacy, originally they tolerated the introduction of this technology on the understanding that it would be used only to promote safety".[3]
[29] In his affidavit, Mr. Kinsman says at paragraph 13 that the policy underlying the statutory privilege with respect to on-board recordings is the public interest in insuring that the various protagonists involved in the security of the traveling public are unimpeded in times of crisis by the threat that their actions or words could be used against them. This appears somewhat different than what is reflected in the Commission's report and some of the decisions dealing with this issue.[4] Mr. Kinsman does not indicate on what basis he came to that conclusion. He further indicates that the TSB is of the view that the privilege is necessary to encourage frank communications between marine traffic regulators and various crew members in times of crisis. Again, there is no indication as to the basis on which the TSB came to that conclusion and this view is contested by the parties based on the fact that VTS recordings have been used consistently in shipping cases and are known not to be confidential by all those involved in the industry. The parties say that those on board any ship within appropriate distance of the sending or receiving stations are able to listen to those communications, which are made over public frequencies such as channels 8 and 13.[5]
[30] The Commission found that the wording adopted in 1989 led to "(...) a maze of overlapping rules riddled with exceptions".[6] It recommended various changes to simplify and clarify these issues but in 1998 only minor amendments were made to section 28 while subsections 29(2) to (5) were completely deleted (see Annex 1).
[31] When the TSB Act was adopted in 1989, on-board recordings were made mainly, if not only, in the cockpit of aircrafts.[7]
[32] Although the National Transportation Safety Board of the United States recommended to the American Coast Guard as early as 1976 the installation of black boxes on board ocean-going tankships and container ships, it is only in 1997 that the International Maritime Organization (IMO) adopted its resolution A. 861(20) setting out performance standards for ship-born voyage data recorders (VDR). By that time, it was felt that the level of technological sophistication of modern ships was such that chapter V of the Convention on the Safety of Life at Sea (SOLAS) could be modified to provide for the mandatory installation of VDR on board certain types of vessels as of July 1, 2002.
[33] That performance standard describes the purpose of VDR as follows:
The purpose of a voyage data recorder (VDR) is to maintain a store, in a secure and retrievable form, of information concerning the position, movement, physical status, command and control of a vessel over the period leading up to and following an incident having an impact thereon. Information contained in a VDR should be made available to both the Administration and the shipowner. This information is for use during subsequent investigation to identify the cause(s) of the incident.
[34] Resolution MSC.163(78) adopted on May 17, 2004 sets out a performance standard for ship-born simplified voyage data recorders (S-VDRS). This simplified version must be installed by 2008 on all existing vessels including those constructed before 2002. The stated purpose of those simplified VDR is identical to the purpose of VDR set out in the performance standard for VDR.
[35] In addition to these performance standards, the Assembly of the IMO adopted a Code for the investigation of marine casualties and incidents (Resolution A.849(20)) on November 27, 1997.[8]
[36] Like the TSB Act, the Code spells out that it is not the purpose of such investigations to determine liability or to blame a person. At article 10, it deals with disclosure of records as follows:
10.1 The State conducting the investigation of a casualty or incident, wherever it has occurred, should not make the following records, obtained during the conduct of the investigation, available for purposes other than casualty investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs any possible adverse domestic and international impact on that or any future investigation, and the State providing the information authorizes its release:
.1 all statements taken from persons by the investigating authorities in the course of the investigation;
.2 all communications between persons having been involved in the operation of the ship;
.3 medical or private information regarding persons involved in the casualty or incident;
.4 opinions expressed during the conduct of the investigation.
10.2 These records should be included in the final report, or its appendices, only when pertinent to the analysis of the casualty or incident. Parts of the record not pertinent, and not included in the final report, should not be disclosed.
[37] Section 10.1 is similar to the wording of section 5.12 of Annex 13[9] of the Convention on International Civil Aviation, except that it does not include a provision like subparagraph (d) of section 5.12 which deals with cockpit voice recordings and transcripts from such recordings.
[38] Section 10.2 of the Code reproduces word for word section 5.12.1 of the said Annex 13 mentioned above.
[39] Finally, the IMO issued its circular MSC/CIRC./1024, dated May 29, 2002 entitled "Guidelines on voyage data recorder (VDR) ownership and recovery", the most relevant portions of which read as follows:
Ownership of VDR information:
1. The ship owner will, in all circumstances and at all times, own the VDR and its information. However, in the event of an accident the following guidelines would apply. The owner of the ship should make available and maintain all the decoding instructions necessary to recover the recorded information.
Recovery of VDR and relevant information:
2. (...) Recovery of the VDR information should be undertaken as soon as possible after an accident to best preserve the relevant evidence for use by both the investigator and the ship owner. (...)
Custody of VDR information:
3. In all circumstances, during the course of an investigation, the investigator should have custody of the original VDR information (...).
4. Read-out of VDR information:
In all circumstances, the investigator is responsible to arrange down loading and read-out of the information and should keep the ship owner fully informed. (...)
5. Access to VDR information:
A copy of VDR information must be provided to the ship owner at an early stage in all circumstances.
6. Further access to the information will be governed by the applicable domestic legislation of the flag State (...).
7. Any disclosure of VDR information should be in accordance with section 10 of the Code (...).
(My emphasis)
ANALYSIS
[40] In interpreting the TSB Act, the Court must be guided by the principles summarized by Justice Iacobucci in Bell Express Vu v. Rex, [2002] 2 S.C.R. 559 at 580 and 581 as follows:
In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings: ... I note as well that in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article "Statute Interpretation in a Nutshell" (1938), 16 Can. Bar Rev. l, at p. 6, "words, like people take their colour from their surroundings". This being the case, where the provision under consideration is found in an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act are more expansive. In such an instance, the application of Driedger's principle gives rise to what was described in R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as "the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter".
[41] In that context, the Court will also consider the evolution of sections 28 and 29 (Annex 1) and the few elements of the legislative history put forward by the TSB in the affidavit of Mr. Asselin.
[42] Canada signed the SOLAS Convention and the international developments described in the background are part of the larger context that the Court can consider.[10]
A) Does section 28(1) cover any of the recordings seized by the TSB?
[43] The definition found at subsection 28(1) refers to "a recording (...) that is made (...) on the bridge or in a control room of the ship".
[44] There is no dispute that the microphones capturing the voice communications are on the bridge of the "CAST PROSPERITY". These microphones are certainly part of the recording equipment referred to in section 28. The fact that the storage of the information captured by the microphones is made in a black box located in a utility room of the vessel cannot take these on-board recordings out of the ambit of the definition.
[45] The only express reference to the recording equipment in that section was added in 1998 to specify that the recording equipment could not be controlled by the operating personnel. There is no doubt here that wherever the black box is on-board the "CAST PROSPERITY", it is not controlled by the operating personnel.
[46] Having considered the language of subsection 28(1)(a) in French and in English in the context of the scheme of the Act and as well as the international context, the Court cannot accept the parties' position that the bridge recordings are not covered by the definition of "on-board recording" simply because not all of the recording equipment is located on the bridge or in a control room of the ship.
[47] With respect to the VHF recordings, the situation is quite different.
[48] At paragraph 12 of his affidavit, Mr. Kinsman of the TSB says that the "("VDR)" on the Cast Prosperity is an on-board recording and contains communication records as these are defined in the Act". This legal conclusion appears to be based solely on the fact that the VHF recording is "a recording of voice communications originating from, or received on or in, [...] the bridge or a control room of a ship". Mr. Kinsman does not refer to or consider the portion of the definition which is at the heart of the dispute today.
[49] The Court cannot simply focus on what is recorded as opposed to where or how the recording is made. The legislator is presumed to have meant something when he added the words "made on the bridge or in the control room of the ship" after stating what content was included at paragraphs 28(1)(a), (b) and (c).
[50] This is particularly important with respect to radio communications with VTS. Indeed, the manner in which the recording of such communications is made appears to be the only thing that will determine if a recording is subject to section 28 or to section 29.[11]
[51] Such a distinction is important since the differences in the protection set out in those two sections are significant.
[52] Section 29 of the TSB Act deals specifically with radio communications with VTS and it does not contain a general privilege preventing a party from communicating those recordings or from producing them or giving evidence about them (a contrario, see subsection 28(2)).
[53] Also, subsection 29(6) which prohibits use of a "communication record obtained under this Act"[12] appears to apply only to a communication record that relates to a transportation occurrence being investigated under this Act and which was released to an investigator for the purpose of the investigation. In effect, this language was the one used in the sections 29(3), (4) and (5) which were repealed in 1998.[13]
[54] This makes sense when one considers that as submitted by the parties, the communications on the VHF radio are not private or confidential when they are made.[14] These recordings have also been available to ship operators involved in collisions for many years.[15]
[55] But, as mentioned, Parliament has prohibited the use of a communication record obtained under this Act against any person referred to in subsection 29(1) in any legal proceedings or, subject to the applicable collective agreement, in any disciplinary proceedings. In the present circumstances, it is not clear if this prohibition would apply to the records obtained from VTS for this may not be a record obtained under this Act. But, it would apply to the VHF recordings.
[56] Thus, even if the Court concludes that a copy of the VHF recordings should be returned to the "CAST PROSPERITY", their use will be subject to that prohibition.
[57] The Court has carefully considered the arguments[16] put forward by both sides as to the interpretation of "against" and "legal proceedings" with respect to subsection 28(7) for they are also relevant to the construction of subsection 29(6).
[58] This language or very similar ones are used in French and in English in sections 28 to 33 of the TSB Act. In many of those sections, it is used in various forms in the subsections. For example, subsection 28(2) refers simply to "any legal, disciplinary or other proceedings", while subsection 28(6) applies to "any proceedings before a court or coroner" and subsection 28(7) to "disciplinary proceedings, proceedings relating to the capacity or competence of an officer