Zarzour v. Canada, docket T-256-98

                                                                                                                                            Date: 20010124

                                                                                                                                         Docket: T-256-98

Ottawa, Ontario, January 24, 2001

BEFORE:        PELLETIER J.

BETWEEN:

                                                             ANTOINE C. ZARZOUR

                                                                                                                                                          Plaintiff

                                                                              - and -

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                                            REASONS FOR ORDER

PELLETIER J.

[1]         Antoine Zarzour, an inmate at the La Macaza Institution of Correctional Service Canada ("CSC"), was granted an unescorted temporary absence ("UTA") by the National Parole Board ("NPB"). While on such an absence he was arrested on the ground that, according to confidential information received by Daniel Perrault, a preventive security officer of the CSC, he had threatened to get members of the federal Department of Justice. It appeared that Mr. Perrault subsequently received further information that Mr. Zarzour was conspiring to bring drugs into the La Macaza institution. The decision to cancel Mr. Zarzour's UTA was made, initially, by two members of the NPB, J.P. Beauchesne and Patricia Thériault. When Mr. Zarzour was arrested, the decision to cancel was affirmed by two other members of the NPB, Serge Lavallée and Anne-Marie Asselin.

[2]         When his unescorted temporary absence was cancelled Mr. Zarzour brought an action against the defendant, alleging that her employee Daniel Perrault was negligent in his case by not making any inquiry into the information given to him. Consequently, Mr. Zarzour said he had been unfairly deprived of his UTA. Mr. Zarzour claimed exemplary damages in the amount of $100,000 and compensation.

[3]         The date of the trial was set for February 5, 2001. Mr. Zarzour had subpoenas issued, which were served on Ginette Collin and on the NPB members Lavallée and Beauchesne. The defendant filed a motion asking the Court to quash the subpoenas in question.

[4]         Mr. Zarzour justified the subpoena of Ms. Collin by reference to the testimony of Mr. Perrault before Mr. Lavallée and Ms. Asselin, during which he said Mr. Perrault admitted discussing the information received about Mr. Zarzour with Ms. Collin, counsel working for the CSC. Mr. Zarzour concluded that Ms. Collin was therefore involved in the decision-making process, which he said gave him the right to summon her to the Court to question her about the communication he said she received from Mr. Perrault. Mr. Zarzour said he was prepared to respect the professional secrecy between Ms. Collin and her client, but said that such secrecy was not in any way compromised by the questions he intended to ask.

[5]         The defendant, for her part, maintained that Ms. Collin's testimony was in no way relevant. Further, if the testimony was relevant it was protected by the solicitor-client privilege of confidentiality.

[6]         The plaintiff justified the need for the subpoenas served on the NPB members by reference to certain actions which he alleged had caused him injury. For example, he maintained that though he refused to allow Mr. Zarzour to question Mr. Perrault at the hearing before him, Mr. Lavallé had a private conservation with the preventive security officer during an adjournment of the hearing. He alleged that the NPB member Beauchemin had noted certain illegal conduct in Mr. Zarzour's past when, in his submission, there was no evidence of this in the record.

[7]         There are two aspects of Ms. Collin's function which might be relevant to the trial of this case. In view of the allegations that Mr. Perrault and the CSC did not pay sufficient attention to the injury which Mr. Zarzour might sustain, consulting counsel could become evidence of the care taken in arriving at the decision made. However, presenting this evidence does not help the case of Mr. Zarzour, who had the subpoena issued. On the contrary, Mr. Zarzour would be concerned to show that the testimony Mr. Perrault might give about the information received from his informant did not correspond to what he had said earlier on the same matter. He could demonstrate this difference, if there was a difference, by questioning Ms. Collin about it. The problem is that Ms. Collin is a lawyer whose client is the CSC, which means that the defendant could rely on professional secrecy to block any question relating to the content of the exchange between Ms. Collin and the CSC representatives.

[8]         However, when legal counsel is involved in the management of an undertaking communications between counsel and the managers are not necessarily protected by professional secrecy. Such communications will not be privileged if counsel is consulted in her capacity as a manager rather than in her professional capacity - R. v. Campbell, [1999] 1 S.C.R. 565, at para. 50:

It is, of course, not everything done by a government (or other) lawyer that attracts solicitor-client privilege. While some of what government lawyers do is indistinguishable from the work of private practitioners, they may and frequently do have multiple responsibilities including, for example, participation in various operating committees of their respective departments. Government lawyers who have spent years with a particular client department may be called upon to offer policy advice that has nothing to do with their legal training or expertise but draws on departmental know-how. Advice given by lawyers on matters outside the solicitor-client relationship is not protected.

[9]         The question of whether Ms. Collin was consulted in her capacity as a lawyer or as a manager is one of fact which the judge hearing the case will have to decide. Ms. Collin will have to obey the subpoena.

[10]       The subpoenas served on the NPB members must be quashed. Mr. Zarzour's written submissions indicated that his purpose in seeking the NPB members' testimony was to question the validity of the decisions made by them. The only means of challenging those decisions is by an application for judicial review, which Mr. Zarzour has already made. However, his application for judicial review was dismissed because his record was not filed as required by the Federal Court Rules, 1998. Mr. Zarzour cannot challenge those decisions once again on the pretext of considering Mr. Perrault's alleged negligence. These subpoenas must be quashed.

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:                                                     T-256-98

STYLE OF CAUSE:                                        Antoine C. Zarzour

- and -

Her Majesty the Queen

WRITTEN MOTION CONSIDERED WITHOUT APPEARANCE BY PARTIES

REASONS FOR ORDER BY:                       PELLETIER J.

DATED:                                                              January 24, 2001

APPEARANCES:

Antoine C. Zarzour                                               FOR THE PLAINTIFF

Rosemarie Millar                                                  FOR THE DEFENDANT

SOLICITORS OF RECORD:

Morris Rosenberg                                                 FOR THE DEFENDANT

Deputy Attorney General of Canada

Ottawa (Ontario)