Date:
20071026
Docket:
T-1591-04
Citation:
2007 FC 1110
[ENGLISH TRANSLATION]
Ottawa, Ontario,
October 26, 2008
PRESENT:
The Honourable Mr. Justice de Montigny
BETWEEN:
DOMINION INVESTMENTS
(NASSAU) LTD. and MARTIN TREMBLAY
(President of Dominion Investments
(Nassau) Ltd.)
Plaintiffs
and
HER
MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1]
This
motion by the Canadian Broadcasting Corporation (the CBC) arises in the context
of an action for damages brought by the plaintiffs against the Royal Canadian
Mounted Police (the RCMP) for injury to its reputation. The plaintiff seeks
leave to intervene in this case for a review of this Court’s order on
October 13, 2005, dismissing the motion for a stay brought by the defendant,
which was supported by an affidavit and a certificate issued under section 37
of the Canada Evidence Act, R.S.C. 1985, c. C-5 (Evidence Act).
[2]
This
motion raises significant and unprecedented issues regarding freedom of the
press, the role of the media and open court. After carefully considering the
case and the parties’ submissions, I have nevertheless arrived at the
conclusion that it would be premature to rule on these issues at this stage of
the proceedings.
FACTUAL BACKGROUND
[3]
On
August 30, 2004, the plaintiffs filed a statement of claim against the defendant,
in which they sought damages of USD $6,350,000 in exemplary damages. They claim
that the defendant allegedly transmitted false and misleading information about
them to financial institutions and to U.S. authorities.
[4]
This
information was reportedly disclosed following a request by U.S. authorities to
extradite a man named Daniel Pelchat. A document prepared in support of their
application and filed in September 2002 in the Superior Court of Québec record notes
the following:
As part of our financial investigation, we have,
together with the RCMP, learned that Pelchat’s moneys are deposited into an
investment account named Dominion Investments at the Royal Bank of Canada. While that investigation remains ongoing, the RCMP reports that Dominion
Investments is a Bahamian money laundering operation affiliated with the Hell’s
Angels.
[5]
As
part of their action, the plaintiffs are also seeking a permanent injunction
order to prevent the defendant from disclosing to anyone any information about
the plaintiffs, including any information relating to the facts that gave rise
to this action.
[6]
On
December 8, 2004, the plaintiffs filed a motion to obtain special case
management due to the complexity of the facts, the disagreement between the
parties regarding the conduct of the proceedings and the determination of the
confidential nature of the information that will be disclosed by the parties in
their proceedings and supporting documents.
[7]
In
response, the defendant submitted that she intended to bring a motion for a
stay and an in camera and ex parte confidentiality motion such that the
evidence to support her motions may not be disclosed to the plaintiffs and
their counsel. According to the defendant, such a disclosure could be highly
detrimental to public interest, and she therefore requested that instructions
be developed in this regard.
[8]
On
December 14, 2004, Prothonotary Morneau allowed the special
management request and set a timetable for the submission of the motion for a
stay. This timetable was subsequently revised at the request of the parties and
was subject to a new order made on December 23, 2004.
[9]
On
January 14, 2005, the defendant subsequently filed a motion for a
stay under paragraph 50(1)(b) of the Federal Courts Act, R.S.C. 1985, c.
F-7 (Federal Courts Act), supported by the affidavit of inspector Serge
Therriault and a written certificate by superintendent Stephen Covey of the
RCMP under section 37 of the Evidence Act. The motion sought a stay of
twelve months from the date of the judgment to be delivered and the restoration
of inspector Serge Therriault’s affidavit to the defendant.
[10]
In
the certificate that he filed in accordance with section 37 of the Evidence
Act, superintendent Covey stated that disclosure of the information in the
numerous redacted paragraphs of the affidavit would cause serious harm to
public interest and, more specifically, to the operations of the RCMP and
Canadian police forces, as well as the ongoing criminal investigations. He also
certified that the redacted information would endanger the lives of individuals
who cooperated with the police corps as part of these investigations were it
disclosed and that it would identify or tend to identify informants and
individuals under investigation, as well as investigation techniques used by
the RCMP and, more generally, police information.
[11]
In
an order dated January 19, 2005, Prothonotary Morneau authorized the
Registry to have inspector Serge Therriault’s full and sealed affidavit hand-delivered.
The order also provided that this non-redacted affidavit could only be viewed
by the prothonotary or judge hearing the motion for a stay and that it would be
hand-delivered to the defendant [translation]
“after a judgment to be rendered on the defendant’s stay of proceedings
and in the event of withdrawal of the stay of proceedings.”
[12]
It
is therefore under this order that the defendant hand-delivered inspector Serge
Therriault’s non-redacted affidavit to the designated registry officer. In a
note on record, the registry officer indicated that he had received the sealed
envelope and had hand-delivered it to the prothonotary. The note added that the
envelope would be kept in the vault at the local office in Montréal and would
be hand-delivered to the defendant post-judgment or should the stay of
proceedings be withdrawn.
[13]
The
plaintiffs filed their reply record seeking the dismissal of the stay of
proceedings on February 1, 2005. They also requested the dismissal of
the defendant’s objection to the disclosure of the information in Serge
Therriault’s affidavit, except the information regarding the identity of police
informants or informers and/or any information allowing them to be identified; alternatively,
they sought an order authorizing counsel for the plaintiffs to take note of all
the sealed information and/or to issue a suitable safeguard order in accordance
with Rule 385(1) of the Federal Courts Rules, SORS/98-106 (the Rules) and
subsection 37(5) of the Evidence Act.
[14]
On
February 16, 2005, Prothonotary Morneau allowed the defendant’s
motion for a stay of proceedings for one year from the date of the order. With
respect to Serge Therriault’s affidavit and the superintendant Stephen Covey’s
certificate, the prothonotary was of the opinion that the requirements of
section 37 of the Evidence Act had been met and that, consequently,
there was no reason to authorize disclosure of the redacted portions of the
affidavit. On this point, he stated the following (2005 FC 354):
[18] In the circumstances of this case, and if
we review the relevant aspects of section 37 of the Act [the Evidence Act],
I am entirely satisfied as to the following points. First, that the Certificate
meets the requirements of section 37 of the Act, and more specifically the
requirements of subsection 37(1).
[19] Second, for the purposes of
subsections 37(4.1) and (5) of the Act, I conclude from an examination of the
Certificate and of Serge Therriault's affidavit that disclosure of the
information that has not yet been disclosed, as set out in that affidavit,
would be harmful having regard to the specified public interest reasons set out
in the Certificate.
[20] As well, for the reasons that follow, I
find, under subsection 37(5) of the Act, that I see no public interest reasons
in the record to justify disclosure that outweigh the public interest reasons
specified and identified in the Certificate.
[21] Having regard to that conclusion, the
Court need not undertake the exercise to which the remainder of subsection
37(5) relates, where a contrary conclusion is reached: authorizing disclosure
of all or part of the information not yet disclosed subject to conditions.
[15]
In
his order, he also stated the following:
[translation]
Furthermore, in accordance with the order of this
Court dated January 19, 2005, when this order has attained final
status, Serge Therriault’s affidavit will be hand-delivered to the defendant,
who will contact this Court’s registry for that purpose. For a period of time,
the Court will keep in its locked vault a copy of the same affidavit that it
has annotated with other relevant Court notes. These documents will be
destroyed in a secure manner after a reasonable period.
[16]
On
February 28, 2005, the plaintiffs appealed the order to stay
proceedings made by Prothonotary Moreau. In a decision made on October
13, 2005 (2005 FC 1397), Gauthier J. allowed the appeal, set aside the
order staying the proceedings and dismissed the defendant’s motion for a stay. Expressing
the view that section 37 of the Evidence Act “is already an exception to
a number of fundamental principles of our law, which requires that proceedings
be public, that the administration of justice be transparent, that the Court
have the benefit of adversarial proceedings before making a decision and that
each party have access to all of the relevant evidence, and particularly to the
evidence presented to the Court by the opposing party” (para 46), Gauthier J. found
that section 37 may only be used in reactive contexts only and not in a
proactive manner, as in this case. On this point, she found the following:
[50] I conclude from my review of all of the
factors that are relevant to a purposive interpretation of section 37 that
neither the Prothonotary nor the Court has the power under that section to make
a non-disclosure order in respect of Insp. Therriault’s affidavit, which was
filed by the defendant in support of its request for a stay and which includes
its evidence regarding the irreparable harm it claims it would suffer. That
provision does not allow the Court to hear an application other than a simple
objection to disclosure, having regard to “secret” evidence, that is,
information that cannot be disclosed to the other party.
[17]
Then,
alternatively, Gauthier J. considered whether the stay of proceedings should be
granted even assuming that section 37 of the Evidence Act applies in a
proactive context. On this point, she found that the prothonotary failed to
have regard to the correct public interest principles that support disclosure
in his analysis and confused the factors that are relevant to the analysis of
the motion of a stay of proceedings with the principles relevant to an order
under section 37. Assuming that even if Mr. Therriault’s affidavit should not
be disclosed under section 37, Gauthier J. was of the view that the defendant
did not establish irreparable harm if the action was stayed. Without going so
far as to say that a motion under paragraph 50(1)(b) of the Federal Courts
Act could never be granted to enable police services to complete an investigation
when a civil action has been instituted, Gauthier J. nonetheless considered
that such a motion was premature in the context of this case.
[18]
Gauthier
J. gave three reasons in support of her opinion that the motion for a stay of
proceedings was premature. First, she submitted that the defendant could always
submit a redacted statement of defence if necessary; the judge could then act
pursuant to subsection 37(5) of the Evidence Act to set a reasonable period
within which the defendant would have to disclose the redacted information as a
condition of disclosure, if he or she found it appropriate.
[19]
Second,
Gauthier J. stated that she lacked details regarding the defence that the
defendant intended to assert to balance the diverse interests at play at that stage
of the proceedings. Finally, she also raised the fact that a stay would not
necessarily resolve the dilemma faced by the defendant, insofar as her
objection to disclosure was based on a number of public interests beyond the
need to protect ongoing police investigations.
[20]
Gauthier
J. therefore allowed the appeal and dismissed the motion for a stay of
proceedings. With respect to Serge Therriault’s affidavit, she ordered that it
be returned to the defendant in the following terms, which are found in Point 3
of her order:
The affidavit of Serge Therriault [shall] be
delivered to the defendant by hand. The defendant will have to contact the
Registry for that purpose. The Court will retain a copy of the affidavit for a
certain period of time in its locked vault, along with other relevant notes of
the Court. Those documents will be securely destroyed after a reasonable period
of time, it being understood that those documents must be retained at least
until expiry of the time for appeal and, in the event of an appeal, until after
final judgment only.
[21]
This
decision was not appealed, and Serge Therriault’s affidavit was subsequently hand-delivered
to counsel for the defendant on November 1, 2005, as attested to by
the Court record.
[22]
On
February 5, 2007, over five months after Gauthier J.’s decision, the CBC filed
a motion under section 4 of the Federal Courts Act and rules 4 and 109
of the Rules seeking a motion authorizing it to intervene in the
proceedings to have the order made by the Court on October 13, 2005,
to have access to the non-redacted version of Mr. Therriault’s affidavit. It
was only then that the defendant reportedly learned that the copy of inspector
Serge Therriault’s affidavit had not yet been destroyed by the Registry despite
Gauthier J.’s order.
[23]
Without
questioning compliance of the prothonotary’s and Gauthier J.’s orders with the
principles of the Canadian Charter of Rights and Freedoms (the Charter)
when they were made, the CBC claimed that maintaining these orders could no
longer be justified and violated the freedom of expression and the public’s
right to information once the RCMP’s investigation was completed and Mr.
Tremblay pleaded guilty to the charges against him in November 2006.
ISSUES
[24]
The
issues raised by the CBC’s motion may therefore be established as follows:
1) Can the CBC be granted
intervener status in this case?
2) Can the order made by Gauthier
J. on October 13, 2005, having regard to the fate of Serge
Therriault’s affidavit be reviewed and, if so, should it be reviewed considering
the developments that occurred since this date?
ANALYSIS
[25]
All
the CBC’s arguments, both with respect to its request for intervention and to
its motion to have Gauthier J.’s order reviewed, and thus have access to
inspector Therriault’s non-redacted affidavit, is based on the importance of
freedom of expression and on the role that the media should play to ensure the public’s
right to information and open court. In support of its argument, counsel for
the CBC quite skillfully relied on the extensive case law of the Supreme Court
in this matter, and specifically on Dagenais v. Canadian
Broadcasting Corp, [1994] 3 S.C.R. 835 [Dagenais], Edmonton
Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, R.
v. Mentuck, [2001] 3 S.C.R. 442 [Mentuck], Canadian
Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R.
480 [CBC v. New Brunswick], Toronto Star Newspapers Ltd. v.
Ontario, [2005] 2 S.C.R. 188 and Vancouver Sun (Re), [2004] 2 S.C.R.
332 [Vancouver Sun].
[26]
Relying
on this jurisprudence, the CBC first argued that the media should be granted
standing to act [translation] “whenever
a motion for an order restricting the freedom of expression is brought” (CBC factum
at para 28). It also claims that any order restricting freedom of expression
must respect the principles set out in the Charter, based on the tests
developed in Dagenais and Mentuck. In other words, the defendant
should demonstrate that such and order is necessary to prevent a serious risk
to the proper administration of justice, and that its salutary effects outweigh
its deleterious effects on the rights and interests of the parties and the
public, and the Court should be able to oversee its order to ensure that it
complies with the Charter at all times.
[27]
Despite
its novelty, as counsel for the CBC herself acknowledges, this proposition is
not without interest. Although the above Supreme Court case law was developed
in the context of criminal law, it may well be possible to apply it, with the
necessary adjustments, to a civil proceeding. At this stage, I will limit
myself to the following remarks.
[28]
First,
it does not seem at all certain to me that the case law relied on by the CBC in
support of the right of the media to intervene in a proceeding to ensure open
court can be applied in this context. Not only was Mr. Therriault’s unredacted
affidavit handed over to the RCMP and should no longer be included in the court
record, in accordance with Gauthier J.’s order, but, moreover, it has already
been decided that the debate on privilege invoked under section 37 of the Evidence
Act is not part of the proceeding and must be held in camera. See, for
example, R. v. Pilotte (2002), 163 C.C.C. (3d) 225 (C.A.
Ont.) and, by analogy (in the context of an application made under section 486 of
the Criminal Code, R.S.C. 1985, c. C-46 (Criminal Code)), CBC v.
New Brunswick), above at para 72.
[29]
The
purpose of open court and freedom of the press is to allow the public to be
informed about what is happening in the courts and to form an opinion on the
decisions made therein. As the Supreme Court stated in CBC v. New Brunswick,
supra, at para 23:
The principle of open courts is inextricably tied to
the rights guaranteed by s. 2(b). Openness permits public access to information
about the courts, which in turn permits the public to discuss and put forward
opinions and criticisms of court practices and proceedings. While the freedom
to express ideas and opinions about the operation of the courts is clearly
within the ambit of the freedom guaranteed by s. 2(b), so too is the right of
members of the public to obtain information about the courts in the first
place. […]
That the right of the public to information relating
to court proceedings, and the corollary right to put forward opinions
pertaining to the courts, depend on the freedom of the press to transmit this
information is fundamental to an understanding of the importance of that
freedom. The full and fair discussion of public institutions, which is
vital to any democracy, is the raison d’être of the s. 2(b)
guarantees. Debate in the public domain is predicated on an informed
public, which is in turn reliant upon a free and vigorous press. The public’s
entitlement to be informed imposes on the media the responsibility to inform
fairly and accurately. This responsibility is especially grave given that
the freedom of the press is, and must be, largely unfettered. […]
[30]
By that reasoning, it
does not seem at all clear that a secret document relied on to support
privilege against disclosure should be included in the court record. On the assumption
that even if the motion to stay had been granted, it may be asked on what basis
the media could have sought to intervene to make representations on the
possibility of releasing an affidavit that was not part of the court record and
did not directly relate to the merits of the case. In this regard, it seems
significant to me that the CBC was unable to identity any decisions in which a
media organization was supposedly authorized in a civil action to intervene at
the stage of the debate where it was being determined whether an objection to
disclosure under section 37 of the Evidence Act should be maintained or
to request a review. It may be thought, as the defendant argues, that it is
only after the Court has ruled on the privileged nature of the information and
dismissed the objection to disclosure that either of the parties could request
a publication ban or a confidentiality order.
[31]
It
is true, as the CBC notes, that in Dagenais, above, at p. 872 the
Supreme Court of Canada recognized that “[u]pon a motion for a ban under the
common law rule, the court should give standing to the media who seek
standing.” However, I am far from satisfied, as the CBC argues, that from this
a right to intervene by the media can be inferred every time a motion for an
order [translation] “that has the
effect of restricting the freedom of expression is brought” (CBC’s motion
record, para 28). I acknowledge that in Vancouver Sun, the Supreme Court
extended the scope of the rule developed in Dagenais, such the judge’s
discretion must be exercised in accordance with the Charter regardless
of whether it is derived from common law or a statutory provision (for example,
under subsection 486(1) of the Criminal Code or embodied in the rules of
practice. Nevertheless, in all of cases to which the Court refers, it was not
the disclosure of a document that was in issue (as is the case when section 37
of the Evidence Act is invoked), but rather the question of whether a
document to which the parties have access should be subject to a
confidentiality order or whether it could instead be disseminated more broadly.
In any event, I am not required to rule on this issue in this case, and these
observations are in no way intended to be a definitive determination on the
matter.
[32]
The
issue raised by the CBC, interesting as it may be, seems to me both late and
premature: late because the CBC filed its motion to intervene over fifteen
months after Gauthier J. delivered her order on October 13, 2005. In her reasons,
Gauthier J. explained that she found the motion for a stay of proceedings to be
premature and ordered that Serge Therriault’s affidavit be hand-delivered to
the defendant. This decision was a final decision that could have been appealed
within ten days before the Federal Court of Appeal under section 37.1 of the Evidence
Act. The defendant did not see fit to do so, and the CBC does not question
the compliance of this order with the Charter principles.
[33]
It
is consistent with the state of case law that the documents consulted in the
context of a debate under section 37 of the Evidence Act not be retained
by the Court but returned to the party that raised the objections, in this
case, the RCMP. In fact, the order to withdraw the affidavit and destroy the
copy once the appeal period has expired can be considered incidental to the
Court’s decision not to disclose the protected information through a public
interest immunity or police informer privilege. The fact that the Court
registry did not destroy the copy of the affidavit, as required by the order,
does not change the case and cannot confer greater right on the CBC than on the
plaintiffs.
[34]
The
CBC seeks intervener status to argue that Gauthier J.’s order, although it may
be consistent with the principles set out in Dagenais and Mentuck,
is no longer warranted considering the facts that have arisen since October 13,
2005. Specifically, the CBC alleges that the RCMP’s investigation is now
complete and that Mr. Tremblay pleaded guilty to the offences with which he was
charged in November 2006. As a result, the defendant should therefore establish
that the order is still necessary to prevent a serious risk to the proper
administration of justice, and that there is no reasonable alternative measure
to prevent said risk.
[35]
To
grant this motion would be to ignore the finality of the orders made by this
Court. Unlike the search warrant mechanism in subsection 487.3(4) of the Criminal
Code, section 37 of the Evidence Act does not provide for continuous
review by the Court after a protective order is issued. Accordingly, there is
no basis for this Court to depart from the general principles under which an
order becomes final once it is signed by the judge who drafted it. As Décary J.
wrote (speaking for the Federal Court of Appeal) in Metodieva v. Canada
(Minister of Employment and Immigration) (1991), 132 N.R. 38, [1991] F.C.J.
No. 629 (QL):
[3] The Rules and the case law of this Court are
quite clear. Once an order has been signed by a judge, it is a final order (Rule
337(4)) which becomes effective on the date it is entered in the Registry (Rule
338(2)). Apart from “clerical mistakes . . . or errors arising . . . from any
accidental slips or missions” which “may at any time be corrected by the Court
without an appeal” (Rule 337(6)), a party who is not satisfied with an order of
a judge of the Appeal Division may only challenge the order in the manner
prescribed by the Federal Court Act or by the Rules of the Court, and in
immigration matters by the Immigration Act and the Federal Court Immigration
Rules.
[36]
This is why the CBC’s
motion appears to me to be late. But it is also premature because the issues that it
seeks to raise may be considered if the defendant again chooses to object to
disclosure of certain information in the context of her defence. Only when the defendant
is required to file her defence, and one of her representatives will be
questioned out of court, that she will file her affidavit of documents in
accordance with the Rules, or even during the trial, that counsel for
the defendant can invoke section 37 of the Evidence Act to object to the
disclosure of certain information. In the event that such an objection is
raised by the defendant, the issues raised by the CBC will have to be decided. In
the meantime, the defendant cannot be compelled to produce information on the
basis of facts subsequent to Gauthier J.’s order, whether by the plaintiff
itself or a third party. If balancing is necessary between the right to free
expression, the parties’ right to a fair and public hearing and the efficacy of
the administration of justice, and if a debate is necessary on the stage of the
proceedings at which this exercise should be carried out, it is best that it be
when the Court has as much information as possible on the defendant’s intended
case.
[37]
For
all the foregoing reasons, I find that the CBC’s motion for intervener status
and to have the order issued by this Court on October 13, 2005,
reviewed must be dismissed. Since the order made by Gauthier J. was final and
could not be reviewed by this Court, the CBC could not help the Court make a
decision and, therefore, cannot meet the requirement of Rule 109 of the Rules
to obtain leave to intervene. That said, this decision should not be
interpreted as preventing the CBC or any other media organization from
returning to this matter should the defendant decide to invoke section 37 of
the Evidence Act once again to object to the disclosure of certain
information in the context of this action.
ORDER
THIS COURT ORDERS that the CBC’s motion be
dismissed, with costs. The Registry shall securely destroy the copy of Mr.
Therriault’s affidavit, as well as all the related Court notes as soon as the
appeal periods have expired. In the event of an appeal, the affidavit and the
notes will be destroyed once a final judgment has been made.
“Yves
de Montigny”
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