Date:
20130705
Docket:
T-1790-10
Citation: 2013
FC 757
Ottawa, Ontario,
July 5, 2013
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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DEVERYN DONALD ALEXANDER ROSS
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Applicant
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and
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THE MINISTER OF JUSTICE
AND
ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS FOR
ORDER AND ORDER
[1]
This
is a motion for an order under section 318(4) of the Federal Courts Rules,
SOR/98-106,
with respect to an objection by the respondents to the disclosure of material that
is in the possession of the Minister in connection with an application for
judicial review.
[2]
The
underlying matter is an application under s 18(1) of the Federal Courts Act,
RSC 1985, c F-7, of a decision to deny a ministerial review under section 696.1
of the Criminal Code, RSC 1985, c C-46 [the Code]. The applicant had applied
to the Minister for the review of two fraud convictions he received in relation
to an investment scheme in Brandon, Manitoba. The convictions were imposed
following a trial in 1995 and were upheld by the Manitoba Court of Appeal. The
applicant filed his application for review in 2004.
[3]
Pursuant
to s 696.2 of the Code, the Minister has the powers of a commissioner under the
Inquiries Act, RSC 1985, c I-11, ss 4-5, to investigate an application
for ministerial review. Under
s 696.2(3) he may delegate those
powers to a lawyer, retired judge or other qualified individual. In this
instance, the Minister retained Mr. Alex Pringle, Q.C., of Edmonton, Alberta, to conduct the investigation. In carrying out that investigation, Mr. Pringle
conducted interviews with witnesses and assembled an extensive documentary
record of what had been a fairly complex fraud investigation and prosecution.
[4]
On
May 15, 2008, Mr. Pringle provided a document entitled “Investigative Report”
(the “First Investigative Report”) to counsel for the applicant and to the
Manitoba Department of Justice. Extensive written representations were
submitted to Mr. Pringle by the applicant and Manitoba Justice in response to
the First Investigative Report. Mr. Pringle then provided his final findings
and recommendations to the Minister on June 22, 2009 in a document entitled “Final
Investigative Report”. The Final Investigative Report was not disclosed to the
applicant in any form prior to these proceedings.
[5]
The
Minister communicated his decision regarding the application for ministerial
review in a letter to the applicant’s counsel dated September 29, 2010. The
Minister was not satisfied that there was a reasonable basis to conclude that a
miscarriage of justice had likely occurred and, exercising his discretion
pursuant to s 696.3(3)(b) of the Code, he dismissed the application.
[6]
In
his Notice of Application for judicial review of the Minister’s decision, the
applicant requested that the Minister provide him with a copy of Mr. Pringle’s Final
Investigative Report pursuant to Rule 317 of the Federal Courts Rules. Counsel
for the respondents objected to the disclosure request on the basis that the
document was protected by solicitor-client privilege.
[7]
When
the application came on for hearing before the Court on April 15, 2013, the
applicant renewed his request for production of Mr. Pringle’s Final
Investigative Report. The Court directed that the respondents file the Final
Investigative Report in a sealed form with written representations in support
of the asserted claim of privilege. The applicant was given an opportunity to
respond in writing and the Minister a right of reply.
[8]
Subsequent
to the hearing, the respondents elected to disclose the Final Investigative Report
in a redacted form. They disclosed 603 paragraphs of the report but continued
to assert privilege with respect to paragraphs 556, 567, and 606 to 613, on the
basis that the redacted paragraphs contained Mr. Pringle’s legal advice and recommendations
to the Minister as to what decision to take in response to the review
application.
[9]
The
respondents rely on the nature of Mr. Pringle’s appointment as a lawyer acting
as the Minister’s delegate to conduct the investigation. Mr. Pringle was no
mere fact-finder, the respondents submit. His task involved both fact-finding
and legal analysis and the application of legal principles governing wrongful
convictions to the facts found by him following his document review and
examinations under oath of several individuals.
[10]
The
applicant acknowledges that in his Memorandum of Fact and Law on the
application to set aside the Minister’s decision, he submitted that the
Minister could claim privilege in the final report for “legal advice provided
on the disposition of the application itself.” He also acknowledges that the
Minister can assert privilege regarding the advice of his Special Advisor on
applications for ministerial review. The Special Advisor oversees the
conviction review process and reviews investigation reports. The position, an
appointment by Order-in-Council, is independent from the public service and the
staff of the Department of Justice. The Special Advisor may provide advice and
recommendations to the Minister that differ from those of the investigating
lawyer. Such advice and recommendations, if any were provided, are not the
subject of this motion.
[11]
The
applicant submits, however, that s 5(1) of the Regulations Respecting
Applications for Ministerial Review-Miscarriages of Justice, SOR/2002-416 [the
Regulations] requires that the entire Final Investigative Report be disclosed
without redactions.
[12]
Subsection
5(1) reads as follows:
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5. (1) After completing an investigation
under paragraph 4(1)(a), the Minister shall prepare an investigation
report and provide a copy of it to the applicant and to the person acting on
the applicant’s behalf, if any. The Minister shall indicate in writing that
the applicant may provide further information in support of the application
within one year after the date on which the investigation report is sent.
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5. (1) Une fois l’enquête visée à l’alinéa
4(1)a) terminée, le ministre rédige un rapport d’enquête, dont il
transmet copie au demandeur et, le cas échéant, à la personne qui présente la
demande en son nom. Le ministre doit informer par écrit le demandeur que des
renseignements additionnels peuvent lui être fournis à l’appui de la demande
dans un délai d’un an à compter de la date d’envoi du rapport d’enquête.
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[13]
The
applicant contends that the disclosed paragraphs in the Final Investigative
Report are replete with findings of mixed fact and law and their disclosure
amounts to a waiver by the Minister of any claim to solicitor-client privilege
over paragraphs whose contents are likely substantially the same and which are
directed to the same issues. He argues that the application for judicial review
in this Court has proceeded on the basis that the Minister applied an incorrect
legal test in coming to his decision because he was incorrectly advised on
legal principles and that his decision should be set aside for that reason. Statements
in the First Investigative Report that would support that argument do not
appear in the disclosed paragraphs of the Final Investigative Report.
[14]
The
applicant submits that he is entitled to know whether the Minister, in
referring only to the First Investigative Report in his decision letter,
disregarded critical passages and conclusions in Mr. Pringle’s Final
Investigative Report.
[15]
The
respondents’ position is that the report disclosed to the applicant’s counsel
in May of 2008 constitutes the “investigation report” prepared within the
meaning of s 5(1) of the Regulations. The investigation had been
completed at that stage, and the invitation to submit further comments from the
applicant and Manitoba Justice was what the duty of fairness and the
Regulations required. The document which is the subject of this motion (i.e.,
the “Final Investigative Report”) was a brief for the Minister on the
investigation report, the comments received in response and Mr. Pringle’s legal
advice.
[16]
The
respondents contend that they have not conceded that disclosure of the Final
Investigation Report was required by virtue of s 5(1) of the Regulations nor
have they waived privilege over those portions that were redacted for solicitor-client
privilege. In providing the redacted report, they were merely responding to the
Court’s direction to disclose such portions of the document for which privilege
was not asserted.
[17]
I
agree with the respondents that the investigation report referenced by s 5(1)
of the Regulations in the context of this matter was that disclosed to the
applicant in May of 2008. That conclusion is consistent with the language of
the Regulation which requires that such a report be provided to the applicant
and that the Minister advise the applicant that he or she has one year within
which to submit additional information in support of the application. The
Regulations do not require that any final report containing the results of the
investigation (including any additional information provided by the applicant) and
the recommendations of the investigating lawyer be disclosed to the applicant
before the Minister makes his decision.
[18]
That
is not to say that procedural fairness would not require disclosure of the
final report where it differs significantly from that provided to the applicant
for review. That would appear to be what Justice Gauthier had in mind in Bilodeau
v Canada (Minister of Justice), 2011 FC 886, when she suggested at paragraph
110 that disclosure of an unredacted final report may be required in the
interests of procedural fairness. I do not need to determine that question on
this motion as it concerns the question of production under Rules 317 and 318.
[19]
Production
of the Final Investigative Report was required when it was requested under Rule
317 for the purpose of the application for judicial review of the Minister’s
decision. Rule 317 is intended to ensure that the record that was before the
decision-maker is before the Court on judicial review: 1185740 Ontario v Canada (Minister of National Revenue) (1999), 247 NR 287, 91 ACWS (3d) 922
(FCA). Rule 318 sets out a procedure for the determination of any objection to
a request under Rule 317.
[20]
In
disclosing the report when directed to do so by the Court under Rule 318, the
respondents did not waive their claim to solicitor-client privilege with
respect to any of the information in the report. Rules 317 and 318 are
subordinate legislative instruments of a general nature. They cannot be
interpreted so as to abrogate solicitor-client privilege absent a clear
expression of intent in the enabling legislation to that effect: Pritchard v
Ontario (Human Rights Commission), 2004 SCC 31, at paras 32-35.
There is no such expression of intent in the Federal Courts Act.
[21]
Having
read the redacted paragraphs, I am satisfied that they meet the test for
determining whether solicitor-client privilege attaches to a communication as
set out in Pritchard at para 15: the communication was between a solicitor,
Mr. Pringle, and his client, the Minister; it entailed the giving of legal
advice by Mr. Pringle, and it was intended to be confidential by both him and
his client.
[22]
As
set out in the letter of appointment, Mr. Pringle was asked to “… provide a legal
opinion to the Minister of Justice on the merits of the application”. Mr.
Pringle himself apparently assumed that his final opinion would be privileged,
as he indicated in correspondence to counsel for the applicant. And in the
Final Investigative Report he noted that he was appointed by the Minister to
“provide an opinion concerning this matter.”
[23]
This
matter is analogous, as the respondents argue, to the decisions of the Federal
Court in Bilodeau, above, and Slansky v Canada (Attorney General),
2011 FC 1467, in which solicitor-client privilege was found to attach in the
context of investigations by delegates.
[24]
Accordingly,
the objection to production of paragraphs 556, 567 and 606 to 613 of the Final
Investigative Report on the ground of solicitor-client privilege is upheld.
[25]
The
applicant requested a further opportunity to make submissions to the Court on
the merits of the application for judicial review when a decision was made on
the objection to disclosure of the information for which privilege was
asserted. The Court will schedule a hearing when counsel have advised the
Registry of their availability and the time required to make further oral
submissions.
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ORDER
THIS
COURT ORDERS that:
1. the
objection to the request for production of the redacted paragraphs in the Final
Investigative Report is upheld;
2. costs
will be in the cause.
“Richard G. Mosley”
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