Docket: T-268-08
Citation: 2011 FC 1009
Ottawa, Ontario, August 19,
2011
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
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MARTHA COADY
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Applicant
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and
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THE DIRECTOR OF PUBLIC PROSECUTIONS,
THE ROYAL CANADIAN MOUNTED POLICE AS REPRESENTED BY THE DEPUTY COMMISSIONER
OF THE RCMP AND
THE ATTORNEY GENERAL FOR ONTARIO
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
On
Friday July 29, 2011, I heard an application by the applicant for the issuance
of a “Wagg Order”. After hearing submissions from the applicant, I found it
unnecessary to call upon counsel for the respondents. I refused the
applicant’s request for a short adjournment which would have allowed her to
file with this Court an underlying proceeding to which the Wagg Order
could be attached. In the light of the previous orders made by Justices
Beaudry and Martineau, I dismissed the applicant’s judicial review application
filed on February 18, 2008. These are my reasons for doing so.
II. Background
[2]
The
applicant is a self-represented litigant. She is a lawyer currently subject to
disciplinary proceedings before the Law Society of Upper Canada (LSUC).
[3]
On
the 18th of February, 2008 she filed a notice of application in this
Court for the following orders:
a. An order
pursuant to section 38.04(2)(c) of the Canada Evidence
Act (R.S.C.,
1985, c. C-5)
(the
CEA) permitting certain individuals to provide viva voce testimony about
two Royal Canadian Mounted Police (RCMP) investigation files.
b. An order
pursuant to section 38.04(2) of the CEA permitting any other investigators or
RCMP personnel identified from a review of the two investigations files to
provide viva voce evidence with respect to them.
c. A production
order or an order in the nature of an equitable bill of discovery or an order pursuant
to section 37(4.1) or 37(5) of the CEA granting the applicant access to the two
complete investigation files.
d. An order
pursuant to section 37(4.1) or 37(5) of the CEA directing the disclosure by the
RCMP to the applicant of all information held within the RCMP files on her
ex-husband and persons associated with him.
e. An order in
the nature of a Norwich Order directing the Attorney General for Ontario
to provide to this Court a certified copy of two sealed files of the evidence
held in the Superior Court of Justice at Ottawa.
[4]
The
applicant states that between 1987 and 2008 she became the victim of a series
of indictable offences, that she discovered the RCMP had been investigating
certain holding companies held by her ex-husband and a few years later had
discovered the RCMP has launched a parallel investigation into offences against
the administration of justice and federal money-laundering legislation by a
group of Ottawa lawyers.
[5]
In
her pleadings, she asserts the information uncovered by the RCMP is needed by
her to put a stop to the on-going offences (criminal harassment offences) which
have caused her to suffer financial and personal losses.
[6]
On
February 26, 2008 Justice Beaudry dismissed the orders sought by
the applicant under section 37 of the CEA. He as of the view that
section 37 of the CEA had not been triggered and that the Court had no
jurisdiction to compel RCMP members to provide evidence in relation to
proceedings before either the Ontario Court of Appeal or the LSUC. His Order
was not appealed.
[7]
On
September 22, 2008 Justice Martineau dismissed the applicant’s
application for an order pursuant to section 377(1) of the Federal Courts
Rules (SOR/98-106) namely an interlocutory order requiring the RCMP to
file in this Court a certified copy of the complete investigation file for
Project Anecdote subject to any solicitor-client privilege.
[8]
Project
Anecdote is said to be by the applicant the RCMP’s investigation focused on
money laundering relevant in her disciplinary hearings and to a negative
decision of the Canadian Judicial Council (CJC) rendered in 2004.
[9]
As
noted by Justice Martineau, the applicant’s Rule 377(1) is for an order for a
preservation of material evidence. He dismissed the application. He was not
satisfied of the existence of a strong prima facie case. He referred to
Justice Beaudry’s order and found that the conditions for triggering section
38 of the CEA which was invoked by the applicant were not met in the case
before him.
[10]
During
argument before him, Justice Martineau noted the applicant had mentioned the
Department of Justice had taken the position that an application for access for
information was a necessary precondition to her obtaining the information she was
seeking and had argued such application would require the consent of the
targets of the RCMP investigation which would not be forthcoming. Justice
Martineau ruled that “An Anton Piller Order (or Norwhich order) cannot be used
to defeat the express provisions of the Access to Information
Act (R.S.C.,
1985, c. A-1) (ATIP).”
[11]
The
applicant also had argued this Court has jurisdiction over issues arising out
of the CJC’s investigation. Justice Martineau pointed out that no application
for judicial review had been filed by the applicant challenging any CJC
decision.
[12]
Finally,
Justice Martineau tackled the applicant’s request for a Norwich Order, a third
party pre-action discovery mechanism by which a third party is compelled to
provide an applicant with information if the applicant needs to have it to
pursue legal remedies. Justice Martineau was not satisfied the applicant had
made out a strong bona fide claim for a Norwich Order and held it was
not necessary for him to examine the other criteria governing the issuance of
such an Order.
[13]
The
Federal Court of Appeal in Coady v Canada (Public
Prosecutions)
2009 FCA 360 dismissed the applicant’s appeal from Justice Martineau’s
decision.
III. The Proceedings before this
Court
[14]
May
2, 2011
was the date fixed by the Judicial Administrator for the hearing of this
matter. In her responding record filed on July 5, 2010, counsel for the
Federal respondents argued that the applicant’s complaints had been fully dealt
with by Justices Beaudry and Martineau and that there were no remaining live
issues. Her application was subject to issue estoppel.
[15]
At
the hearing, the applicant sought an adjournment in order to enable her to
investigate an event recently discovered – the fact that the RCMP had recently
transferred to the Library and Archives Canada (LAC) the two investigation
files she was seeking. She also mentioned to the Court that LAC had a more
open policy with respect to the release of archival material. She expressed
the view that this new development might resolve the judicial review.
[16]
I
granted the adjournment to enable both counsel to investigate the matter. On May
24, 2011, the Court received a letter from counsel for the Federal respondents
indicating that after investigation she could not agree with the applicant’s
interpretation of the “new” LAC disclosure policy. In any event, she said the
applicant had to apply to LAC for disclosure pursuant to section 6 of the ATIP.
[17]
The
applicant responded on June 4, 2011. She advised the Court that sometime ago
an ATIP request had been made to the RCMP for access to the investigation
files, but the request was refused on this basis of section 16 of ATIP, a
decision which had recently been confirmed by the Information Commissioner but
no formal letter had been received by the applicant from the Commissioner’s
Office.
[18]
After
hearing the parties on a telephone conference call, I rescheduled the hearing
of the judicial review application for July 29, 2011 and permitted
supplementary representations to be made.
[19]
On
July 18, 2011
the Court received supplementary submissions from the Federal respondents to
the effect that the Federal Court had no jurisdiction to order a common law
screening procedure which was what a Wagg Order is about citing the Ontario
Divisional Court’s decision in P.D. v Wagg 61 OR (3d) 746 sustained by
the Ontario Court of Appeal P.D. v Wagg 71 OR (3d) 229.
[20]
In
any event, counsel for the Federal respondents argued that a Wagg Order being
a production order cannot in and of itself be a free standing order.
Counsel argued there must be an underlying action and the parties must have
exchanged affidavits of documents to trigger a Wagg motion before even getting
to the screening procedure developed in Wagg.
[21]
I
agreed with that submission as did the applicant. She sought an adjournment to
enable her to file an underlying proceeding which I understood her to mean an
appeal from the Commissioner’s recent decision confirming the 2008/2009 ATIP
refusal. I was of the view I could not grant the applicant’s adjournment request
because ATIP specifically provided for a review procedure to this Court which
had to be followed. There being no purpose to the judicial review application,
I dismissed it.
[22]
Notwithstanding
the applicant’s request that the dismissal of the judicial review application
be without costs, I fail to see why the usual cost award to the Federal
respondents should not be made.
JUDGMENT
THIS COURT
ORDERS that this judicial review application be dismissed with costs.
“François
Lemieux”
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