Feuerhelm v Alberta (Justice and Attorney General), 2017 ABQB 709

Court of Queen’s Bench of Alberta Citation: Feuerhelm v Alberta (Justice and Attorney General), 2017 ABQB 709 Date: 20171127 Docket: 1501 13757 Registry: Calgary Between: Eric Feuerhelm Applicant - and - Minister of Justice and Attorney General for Alberta and The Chief of the Calgary Police Service Respondents Corrected judgment: A corrigendum was issued on November 30, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice J.T.

Eamon _______________________________________________________ Table of Contents I. Introduction . 2 II. Facts . 3 III. The Court’s review function . 5 (

a) Background . 5

(

b) Review .. 6 IV. The alleged defect in the ex parte application . 7 (

a) Statutory context 7 (

b) Grounds of application and responses . 9 V. Applicable law .. 10 (

a) Charter remedies apply . 10 (

b) Section 8 of the Charter . 11 (

c) Section 7 of the Charter . 12 (

d) Alberta Bill of Rights . 14 (

e) Abuse of process . 15 VI. Analysis . 16 (

a) The claimed requirement for advance judicial authorization . 16 (

i) Whether subsection 193(2)(

a) requires prior judicial authorization . 17 (ii) Whether civil procedure requires prior judicial authorization . 19 (

b) Disclosure or use of the wiretap evidence . 22 (

i) Whether subsection 193(2)(

a) applies only to existing proceedings . 22 (ii) Use and disclosure in the CPS Constable’s affidavit 23 (iii) Disclosure by CPS to the Minister 24 (

c) Charter rights/abuse of process/ Alberta Bill of Rights . 25 VII. Conclusion . 28 I.

Introduction [ 1 ] The Minister of Justice and Solicitor General for Alberta (Minister) commenced proceedings under the Victims Restitution and Compensation Payment Act , SA 2001, c V-3.5 (VRCPA) against Mr Feuerhelm (EF), another individual, and the Calgary Police Service (CPS) for a property disposal order over cash which was seized by CPS and allegedly was acquired by EF or the other individual by illegal means or was an instrument of illegal activity. [ 2 ] These proceedings commenced with the Minister’s application ex parte (without notice to EF) on December 1, 2015 for a restraint order over the cash.

On December 1, 2015 the Court granted the Restraint Order and set a hearing date to determine whether to make a property disposal order. The Minister then filed the Originating Application and supporting affidavits on the Court file on December 2, 2015. The contents of that file were and are publicly accessible. [ 3 ] In applying for the Restraint Order, the Minister relied on some of the content of a wiretap of EF’s telephone conversations that had been authorized under the Criminal Code , RSC 1985, c C-46 as amended. [ 4 ] The wiretap information had been provided by CPS to the Minister.

The Minister included some of that information in one of the supporting affidavits, which was sworn by a Police Constable who was a police officer in the CPS force. The CPS did not act under a judicial authorization specifically authorizing it to provide wiretap information to the Minister.

The Minister did not act under a specific judicial authorization permitting use or disclosure of the information, or obtain a sealing order to prevent further use or disclosure of the wiretap information disclosed in the CPS Constable’s affidavit. [ 5 ] At the time of the communication, disclosure and use of the wiretap evidence in support of the application for a restraint order, many counts alleging offences under the Controlled Drugs and Substances Act , SC 1996, c 19 as amended, and the Criminal Code were pending against EF. [ 6 ] EF applies to set aside the Restraint Order and stay the property disposal proceeding.

He says the disclosure and use of the wiretap evidence were contrary to section 193(1) of the Criminal Code , unreasonable and unauthorized. Therefore the Minister, CPS or the CPS Constable violated his rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 , or the Alberta Bill of Rights , RSA 1980, c A-4 , and committed an abuse of process. He says the violations were so egregious that the Court should set aside the Restraint Order and stay the property disposal proceedings. [ 7 ] CPS and the Minister say their conduct was reasonable and lawful. They say, among other things, that: no specific judicial

authorization was required for CPS to disclose the wiretap evidence to the Minister or for the Minister to disclose and use the information in this action; the exemption under subsection 193(2) (

a) of the Criminal Code permits CPS, their individual police officers, and the Minister to disclose the wiretap information for the purpose of providing evidence in a civil proceeding; and, the Minister’s powers under subsection 54.1 of the VRCPA required CPS to disclose the information to the Minister. II.

Facts [ 8 ] The cash which was restrained under the Restraint Order was previously seized under a search warrant executed by CPS in October 2014 at a residence allegedly occupied by EF. [ 9 ] The Minister applied under sections 5 and 19.4 of the VRCPA for a restraint order to preserve the cash pending a property disposal hearing.

The proceedings are conducted for the Minister by the civil forfeiture office, and unless otherwise specified a reference to the Minister means that office or the relevant representatives of that office. [ 10 ] The application was made ex parte , meaning that EF did not have notice of the application. [ 11 ] The Court granted the Restraint Order on December 1, 2015, pursuant to both sections 5 and 19.4 of the VRCPA . [ 12 ] The Minister relied on two affidavits in support of the ex parte application: The affidavit of the CPS Constable (he is simply referred to throughout these reasons by his title) sworn November 26, 2015 and a Detective’s affidavit sworn November 23, 2015. [ 13 ] The CPS Constable’s affidavit was directed at the underlying facts.

The Detective’s affidavit provided opinion evidence concerning the drug trade in Calgary. Both affidavits were filed December 2, 2015 and are publicly available on the Court file. [ 14 ] The CPS Constable was the primary investigator in an investigation into activities involving EF. His affidavit was based on many sources of information, including: (

a) visual observations of EF in the apartment-style building in which his residence was allegedly located, (

b) a search of the residence allegedly occupied by EF and the results of the search, (

c) a traffic stop and vehicle search of a vehicle in which EF was a passenger, (

d) inspections or analyses of various items located during the search of the residence or vehicle, (

e) the results of a search for any firearms licenses for EF, (

f) an interview of EF, (

g) text messages involving EF, and (

h) telephone conversations involving EF. [ 15 ] The basis of the application was that this evidence, together with the opinion evidence concerning the drug trade, showed that the cash was proceeds of drug trafficking or an instrument of drug trafficking activity, and therefore ought to be restrained, and later disposed of, under the VRCPA . [ 16 ] The source of the telephone conversations was a judicially-authorized wiretap of EF’s telephone that occurred over several days prior to the search of the residence. [ 17 ] The record does not indicate precisely how the Minister’s civil forfeiture office obtained the content of the wiretaps of EF’s telephone, or even whether it obtained all of it.

CPS conducted the wiretap and was the custodian of the wiretap information. The CPS Constable advised another CPS officer who dealt with civil forfeitures that he seized cash exceeding $5,000. Eventually the Minister’s civil forfeiture office prepared a draft affidavit and directly provided it to the CPS Constable. Either the initial draft affidavit or a further iteration included a

summary of wiretap evidence. The CPS Constable did not provide this information to the civil forfeiture office. The Minister obtained the information from some other person or source in CPS. The evidence does not indicate how, when or for what purpose the information was acquired by the Minister. [ 18 ] During cross-examination of the CPS Constable, the Minister refused a request to advise how the contents of the wiretap came to be known by the Minister’s civil forfeiture office. The Minister contends the information requested is both irrelevant and privileged.

EF did not apply to the Court to compel the Minister to provide the requested undertaking or otherwise force disclosure of that information in the civil proceeding. [ 19 ] EF concedes that even without the wiretap information, the Crown provided sufficient evidence to support the Restraint Order. [ 20 ] EF pled guilty to some of the counts in the criminal proceedings on January 18, 2016. The others were to be withdrawn. The charges against the other individual accused were stayed.

Counsel advised the Court during the guilty plea that the parties would be presenting a joint submission at the sentencing hearing. [ 21 ] EF was sentenced in September 2016. The Information, the court endorsements, an agreed statement of facts, and the transcript of the guilty plea and sentencing proceedings are publicly available. The sentencing transcript records that both Crown and Defence advised the Court that EF was prepared to take responsibility for the matter from the outset.

[ 22 ] The Information to Obtain the search warrant remains subject to a sealing order made in the Provincial Court of Alberta under

section 11 of the Controlled Drugs and Substances Act and s 487.3(2) of the Criminal Code . [ 23 ] Prior to the civil forfeiture proceedings, the wiretap communications had not been made publicly available. The guilty plea and sentencing proceedings (which were open to the public) did not disclose the wiretap evidence described in the CPS Constable’s affidavit. (At EF’s sentencing hearing it was disclosed there was a wiretap, and brief mention was made to a piece of evidence obtained by wiretap which was not mentioned in that affidavit).

EF did not consent to disclosure of any wiretap information to the Minister’s civil forfeiture office or to the disclosure or use of the evidence in the civil proceeding. [ 24 ] EF applied to set aside the Restraint Order on February 9, 2016. The review of the Restraint Order proceeded prior to the property disposal hearing (which is presently adjourned). EF challenged the Restraint Order by asserting the disclosure and use of the wiretap information violated his constitutional and other rights. EF has not filed an affidavit about whether the cash was proceeds of crime or an instrument of crime.

Although EF made various admissions in the criminal proceedings, he did not make admissions about the cash and counts referring to possession of cash were withdrawn. [ 25 ] EF deposes in this proceeding to his efforts to reform himself since his arrest, and the negative impact on him, and his future education, employment and relationship prospects, of disclosure of the wiretap communications. [ 26 ] Neither the Minister nor EF made a restricted court access application to restrict or prohibit public access to or disclosure of the court file under

Part 6, Division 4 of the Alberta Rules of Court, AR 124/2010 (“Rules” or “R”). III. The Court’s review function (

a) Background [ 27 ] The basic objective of the VRCPA is “to allow for the seizure and disposition of property that has been implicated in criminal activity” ( Alberta (Justice and Attorney General) v Pazder , 2010 ABCA 183 at para 9 ). [ 28 ] The Minister’s application for a restraint order must be made ex parte under

section 4 (property alleged to have been acquired by illegal means) or 19.3 (property alleged to be an instrument of illegal activity) of the VRCPA . Pursuant to sections 5(1) and 19.4(1) the test is whether there are reasonable grounds to believe that the property has been acquired by illegal means or is an instrument of illegal activity. [ 29 ] The application must be made ex parte because of the risk that the property will be disposed of or hidden before the court can adjudicate on its forfeiture.

The restraint order does not alter the substantive rights of the parties, or create or uncover any new evidence that could be used to the respondent’s detriment. It merely preserves the status quo to allow the court time to adjudicate on the disposal issue ( Pazder at para 12 ). [ 30 ] Subsections 4 (2) and 19.3(2) prescribe the content of a supporting affidavit, and subsections 4(3)(

e) and 19.3(3)(

d) permit the affiant to include in the affidavit any other matter that the affiant considers relevant. [ 31 ] The proceedings and burdens of proof are civil in nature ( VRCPA,

section 51 ; Pazder at para 10 ). [ 32 ] However, the action is not a typical civil action because it walks a “delicate balance between civil and criminal law” ( Alberta (Justice and Attorney General) v Chau , 2010 ABQB 758 at para 30 , app dism 2011 ABCA 376 ). A civil court has many tools to control the progress of an action and ensure proceedings are fair and just and avoid abuse or serious prejudice. These include the Court’s inherent jurisdiction to remedy abuses of process, its wide powers under Rules 1.2 and 1.4, and its discretion under subsections 11(2.1) , 19.91(2.1) and 52(2) of the VRCPA .

The Court may consider any unfairness or negative impact the civil forfeiture action may have on pending criminal proceedings and may control the pace of the action to protect against unfairness in appropriate cases ( Chau at para 30; (Minister of Justice) v McNair , 2014 ABQB 27 ; VRCPA, subsections 11(2.1) and 19.91(2.1)). (

b) Review [ 33 ] Sections 8 and 19.7 of the VRCPA allow review of the Restraint Order. [ 34 ] A request for a review of a restraint order must be supported by an affidavit by the person requesting the review setting out (

a) any evidence with respect to any matters before the Court that were not before the Court at the time of the granting of the restraint order, and (

b) any other matters that the affiant considers relevant to the request for the review ( VRCPA, subsections 8(1) and 19.7(1) ). [ 35 ] Subsections 8(1) and (3) interpreted together require an applicant to provide an affidavit, but the affidavit need not contain new evidence and the Court may consider cross-examinations on the affidavits put forward by the Minister on the ex parte application ( Alberta (Minister of Justice and Attorney General) v Wong , 2012 ABQB 498 ; Mackie v Alberta (Minister of Attorney General) , 2014 ABQB 173 at paras 42 - 45 ). [ 36 ] At the review of a restraint order, the court can confirm, revoke or vary the order ( VRCPA, subsections 8(2) and 19.7(2) ).

The Court must correct an error by the judge who originally granted the restraint order ( Alberta (Justice and Attorney General) v Petros , 2011 ABQB 541 at para 65 ; Mackie at para 86 ). The Court may dismiss an application for a review of the restraint order if the Court, on considering the supporting affidavit or other representations made to the Court, is satisfied that (

a) the evidence before the Court with respect to the application to review the restraint order is the same or substantially the same as the evidence that was before the Court at the time of the granting of the restraint order, or (

b) there is not sufficient reason set out in the affidavit to cause the Court to vary or revoke the restraint order ( VRCPA, subsections 8(3) and 19.7(3) ).

[ 37 ] There is no provision expressly dealing with the burdens of proof on a review of a restraint order. While an applicant for review may not bear the full burden of proof assigned to them on the property disposal application, the Act signals that there is at least some evidentiary obligation on the applicant ( Pazder at para 26 ). [ 38 ] In this case, the review of the Restraint Order has proceeded before the property disposal hearing, which was adjourned pending this review.

The Court therefore did not receive an affidavit from EF on the source or use of the cash. [ 39 ] When might there be sufficient reason to vary or revoke a restraining order where, as here, the person requesting review of the restraining order has not challenged their alleged involvement in or knowledge of the illegal activity in respect of which the property was restrained? [ 40 ] The structure of the VRCPA tends to direct the analysis towards the ultimate substantive issue, namely whether the property was associated with criminal activity, and away from technical arguments whether the restraint order should have been granted ( Pazder at para 18 ).

A judge may well decide to require that the review and property disposal hearings occur together, in which case an applicant might be required to file evidence on the property disposal hearing addressing his or her involvement with the property and the alleged unlawful activity to meet the evidentiary burdens placed on property claimants in the property disposal hearing ( Pazder at paras 17 and 27 ). [ 41 ] However, in appropriate cases a person applying for review is not necessarily forced to provide new evidence or engage on the merits of whether the property was associated with criminal activity.

They may challenge the admissibility of the Minister’s evidence, seek Charter remedies, and seek a remedy for non-disclosure of material information on the ex parte application ( Mackie at para 85 ). They may ask the Court to correct an error (para 36 above). The conclusions on these points, as expressed in Petros and Mackie , are consistent with the ordinary civil practices for review of ex parte orders. I agree with those conclusions. IV. The alleged defect in the ex parte application (

a) Statutory context [ 42 ] Wiretap evidence is subject to

section 193 of the Criminal Code . Subsection 193(1) provides: 193

(1) Where a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator thereof or of the person intended by the originator thereof to receive it, every one who, without the express consent of the originator thereof or of the person intended by the originator thereof to receive it, wilfully (

a) uses or discloses the private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof, or (

b) discloses the existence thereof, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. [ 43 ] Subsection 193(2) provides a number of exemptions. They are: (2) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication (

a) in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person may be required to give evidence on oath; (

b) in the course of or for the purpose of any criminal investigation if the private communication was lawfully intercepted; (

c) in giving notice under

section 189 or furnishing further particulars pursuant to an order under

section 190; (

d) in the course of the operation of (

i) a telephone, telegraph or other communication service to the public, (ii) a department or an agency of the Government of Canada, or (iii) services relating to the management or protection of a computer system, as defined in subsection 342.1(2), if the disclosure is necessarily incidental to an interception described in paragraph 184(2)(c), (

d) or (e); (

e) where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere; or (

f) where the disclosure is made to the Director of the Canadian Security Intelligence Service or to an employee of the Service for the purpose of enabling the Service to perform its duties and functions under

section 12 of the Canadian Security Intelligence Service Act. [Underlining added]

[ 44 ]

Section 54.1 of the VRCPA provides for disclosure of information by public bodies to the Minister to carry out the objects of the Act, and authorizes the Minister to use and disclose the information obtained under the

section to carry out its functions under the Act.

Section 54.1 provides: 54.1(1) The Minister may enter into information-sharing agreements that are reasonably required by the Minister to exercise powers or perform functions and duties under this Act with the following: (

a) the government of Canada or of any province or territory or another jurisdiction in or outside of Canada or an agency of any government, or (

b) a public body.

(2) The Minister is entitled to information, including personal information, that is (

a) in the custody or control of a public body, and (

b) reasonably required by the Minister to exercise powers or perform functions or duties under this Act.

(3) A public body must, on request, disclose to the Minister information to which the Minister is entitled under subsection (2).

(4) The Minister may (

a) use information obtained under this

section only for the purpose of exercising a power or carrying out functions or duties under this Act, and (

b) disclose information obtained under this

section only (

i) for a purpose referred to in clause (a), or (ii) as required by law.

(5) In this section, (a) “personal information” means personal information as defined in the Freedom of Information and Protection of Privacy Act ; (b) “public body” means public body as defined in the Freedom of Information and Protection of Privacy Act . [Underlining added] [ 45 ] CPS is a public body ( Freedom of Information and Privacy Act , RSA 2000, c F-25 , ss 1(i)(x)(B), 1(j)(iii), and 1(p)(vii)). (

b) Grounds of application and responses [ 46 ] EF makes various arguments about why his rights were violated, but all essentially boil down to the propositions that: (

a) CPS breached subsection 193(1) of the Criminal Code by disclosing the wiretap information to the Minister, (

b) the CPS Constable breached subsection 193(1) by providing an affidavit to the Minister containing wiretap information, which amounts to disclosing or publishing the information, (

c) CPS or the Minister or both required judicial authorization for disclosure or use of wiretap information, which did not exist. Such authorization must be sought on notice to EF, and that application would have had to resolve whether, having regard to EF’s personal circumstances, the information ought to be disclosed for or used in the civil proceeding, and (

d) the Minister was not entitled to receive the wiretap information under subsections 54.1(2) and (3) of the VRCPA or acted unreasonably in receiving it. Therefore the Minister did not lawfully possess the information and could not lawfully use or disclose it. [ 47 ] EF says these amount to breaches of his

section 7 and 8 Charter rights or his rights under the Alberta Bill of Rights . EF further says that intentional disclosure of wiretap evidence by CPS or the Minister without specific judicial authorization was an abuse of process. [ 48 ] EF further argues that if

section 54.1 of the VRCPA authorizes disclosure to the Minister by CPS or use or disclosure by the Minister, it is inconsistent with subsection 193(1) of the Criminal Code and therefore inoperative under the constitutional doctrine of paramountcy. Paramountcy was not asserted in EF’s Application for Review, and notice of this constitutional question was not given to the Attorney General of Canada or formally to the Minister of Justice and Solicitor General of Alberta as required by

section 24 of the Judicature Act , RSA 2000, c J-2. [ 49 ] The Minister and CPS rely primarily on the exemption in subsection 193(2) (

a) of the Criminal Code . They argue that exemption reflects that the right to privacy is not absolute. They say there is no evidence that CPS, the CPS Constable or the Minister acted outside this exemption. Further, the Minister lawfully possessed, used and disclosed the information under

section 54.1 of the VRCPA . [ 50 ] The Minister and CPS say that no specific judicial authorization is required under subsection 193(2) (a). The Minister says, further, that there is no inconsistency between subsection 193 of the Criminal Code and

section 54.1 of the VRCPA . Dual compliance is

possible. Leaving aside the failure to give notice of a constitutional argument, a paramountcy issue does not arise. V. Applicable law (

a) Charter remedies apply [51] In Petros at paras 20 - 37, Mr Justice Sullivan found that the Charter applies in civil forfeiture proceedings. In making thisdetermination he observed that civil forfeiture matters are not strictly private as the government, on behalf of the public, is advancing anaction based on its own statute in order to confiscate the property of an individual. [52] After discussion, Mr Justice Sullivan concluded: 37. To conclude my analysis on this question and give effect to the words of La Forest J. in McKinney v.

University of Guelph, (SCC), [1990] 3 S.C.R. 229 at 261, that "the Charter is essentially an instrument for checking the powers of government overthe individual", the present circumstances must attract Charter scrutiny. Consequently, I find Charter protection and remedies pursuant tos. 24 apply in order to insulate the fairness of civil forfeiture proceedings under the Act. [53] I agree with Justice Sullivan’s reasoning and conclusion. To like effect, see also Mackie at para 48; Wong at paras 55 - 73;and Alberta (Minister of Justice and Attorney General) v Squire, 2012 ABQB 194. (

b) Section 8 of the Charter [54]

Section 8 of the Charter provides: Everyone has the right to be secure against unreasonable search or seizure. [55] In order for a search to be reasonable under

section 8, it must be authorized by law, the law must be reasonable, and the searchmust be carried out in a reasonable manner. [56] The constitutionality of the statutory provisions are not in issue in this case. The only issue is whether the disclosure and useof the information in this case was reasonable. [57] Disclosure of legally obtained wiretap evidence permitted by subsection 193(2) of the Criminal Code engages

section 8 of theCharter (Wakeling v United States of America, 2014 SCC 72, per Moldaver, Lebel and Rothstein JJ at paras 38 - 41, and McLachlin CJCat paras 95-96). [58] The serious privacy implications of electronic surveillance and a suspect’s continuing expectation of privacy in wiretapinformation collected under a valid judicial authorization were described by Mr Justice Moldaver as follows: 38 ...

Parliament has recognized that wiretaps pose heightened privacy concerns beyond those inherent in other searches and seizures.Justice Karakatsanis describes (at para. 116) the serious privacy implications of electronic surveillance, citing this Court's caution that"one can scarcely imagine a state activity more dangerous to individual privacy" (Duarte, at p. 43).

Given these implications, theprotections that Parliament has seen fit to fold into the wiretap regime include s. 193 which provides that, other than for one of thedelineated purposes, the disclosure of wiretap information is not only unauthorized, it is criminal. 39. The highly intrusive nature of electronic surveillance and the statutory limits on the disclosure of its fruits suggest a heightenedreasonable expectation of privacy in the wiretap context.

Once a lawful interception has taken place and the intercepted communicationsare in the possession of law enforcement, that expectation is diminished but not extinguished.... 40. ... Furthermore, there is a residual and continuing expectation of privacy in wiretap information that persists even after it has beenlawfully collected. ... [Italics in passage quoted] [59] There may be significant potential dangers in further disclosing lawfully obtained wiretap evidence (Wakeling at paras 73 -74, 79 - 81, and 95 - 96).

These may be addressed by imposing caveats on the use of the information and in some cases may precludedisclosure (ibid). [60] In assessing reasonableness in the context of disclosure in a civil action, Imperial Oil v Jacques, 2014 SCC 66 provides usefulguidance. [61] In Jacques, an application was made in a civil action against the federal Director of Public Prosecutions and the CompetitionBureau seeking disclosure of recordings of private communications which had been intercepted by the state in the course of a criminalinvestigation and disclosed to the accused in criminal proceedings.

The application was made under a third party records disclosure ruleunder Quebec civil procedure, which permitted a Court to order disclosure of records from a third party during the information discoverystage of a civil action and well before any trial or hearing. [62] The Court affirmed the decision of a chambers judge to compel disclosure of wiretap evidence to the plaintiffs. The evidencewas relevant, disclosed in a manner consistent with the rules of civil procedure, and screened to protect the privacy rights of third partieshaving nothing to do with the proceedings (Jacques at paras 11, 52, and 87).

The Court emphasized the discretion of the chambers judgeto weigh the competing interests, including the impact of disclosure on the rights of innocent persons (ibid at para 78) and any impact on

a related criminal process (ibid at para 86), and to oversee and control the evidentiary process to advance the objectives of civilproceedings while maintaining fairness in any pending criminal proceedings even to the point of delaying disclosure until the criminalproceedings were completed (ibid at paras 83 and 86). [63] Alberta has a third party records disclosure provision similar to the provision that was considered in Jacques: R 5.13.

Also,the Rules permit a party to require (and the Court to order) the attendance of a third party, with records, to be questioned under oath as awitness for the purpose of obtaining a transcript of that person’s evidence for use at the hearing of an application in a civil proceeding, orto testify at a trial (RR 6.8, 6.16, 6.38, 8.8 and 8.9). (

c) Section 7 of the Charter [64]

Section 7 of the Charter provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [65] Blencoe v BC (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307 at para 45 holds that

section 7 of the Charteris not confined to the penal context. It observed that in New Brunswick (Minister of Health and Community Services) v G (J), (SCC), [1999] 3 SCR 46 at para 58, Chief Justice Lamer (as he then was) stated that the protection of security of the personextends beyond the criminal law. Chief Justice Lamer continued (ibid at para 65): ... s. 7 is not limited solely to purely criminal or penal matters. There are other ways in which the government, in the course of theadministration of justice, can deprive a person of their s. 7 rights to liberty and security of the person, i.e., civil committal to a mentalinstitution: see B. (R.), supra, at para. 22. [66]

Section 7 can extend beyond the sphere of criminal law, at least where there is "state action which directly engages the justicesystem and its administration" (Blencoe at para 46). To trigger its operation there must first be a finding that there has been a deprivationof the right to "life, liberty and security of the person" and, secondly, that the deprivation is contrary to the principles of fundamentaljustice (ibid at para 47). [67] The right to security of the person encompasses serious state-imposed psychological stress (Blencoe at paras 56 - 57).

Thewords "serious state-imposed psychological stress" delineate two requirements that must be met in order for security of the person to betriggered. First, the psychological harm must be state-imposed, meaning that the harm must result from the actions of the state. Second,the psychological prejudice must be serious. Not all forms of psychological prejudice caused by government will lead to automaticsection 7 violations (ibid at para 57).

The interest of security of the person may be triggered where the impugned state action had aserious and profound effect on the claimant's psychological integrity (ibid at para 81). [68] In assessing the matter, the Court must be mindful that “stress, anxiety and stigma may arise from any criminal trial, humanrights allegation, or even a civil action”, and “some amount of stress and stigma attached to the proceedings must be accepted” (Blencoeat paras 60 and 96). Similarly: ...

It is clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person ofreasonable sensibility would suffer as a result of government action. If the right were interpreted with such broad sweep, countlessgovernment initiatives could be challenged on the ground that they infringe the right to security of the person, massively expanding thescope of judicial review, and, in the process, trivializing what it means for a right to be constitutionally protected... G (

J) at para 59. [69] Further, the assessment is objective: 60 For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effecton a person's psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on thepsychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, butmust be greater than ordinary stress or anxiety. G (

J) at para 60; see also R v Gowdy, 2016 ONCA 989 at para 100. [70] Finally, as the Court stated in Blencoe, the serious psychological incursion must result from state interference with an“individual interest of fundamental importance.” [71] The Supreme Court of Canada has expressed sympathy for the proposition that

section 7 of the Charter includes a right toprivacy (R. v. O'Connor, (SCC), [1995] 4 SCR 411 at paras 110 - 119, and authorities referenced therein). An invasionof a privacy interest may qualify as such an interest of fundamental importance protected in appropriate cases by

section 7, but that isdependent on the consequences of the interference and the quality of the injury (Blencoe at paras 81 - 86 and 97).

The harm required toestablish an incursion would not easily include the type of stress, anxiety and stigma that result from administrative or civil proceedingsabsent some added circumstance such as direct state interference with a claimant's psychological integrity (Blencoe at paras 83 - 84). [72] Where privacy is the interest of fundamental importance relied on, the Court must also be mindful that people have only a"reasonable expectation of privacy" because privacy "must be balanced against legitimate societal needs" (O’Connor at para 117;Blencoe at para 84).

These needs, to be weighed in the balance, include the open courts principle and the freedom of the press (A.B. vBragg Communications, 2012 SCC 46, [2012] 2 SCR 567). [73] Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153 at para 113 summarizes the test to identify a principle of

fundamental justice: (

a) It must be a legal principle. (

b) There must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate. (

c) It must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty orsecurity of the person. [74] It is impossible to define the full scope of the principles of fundamental justice. They guarantee a fair process, having regardto the nature of the proceedings at issue. They can be manifested in many ways, there are many judicial explanations of the concept andjurisprudence over the years has given shape to the content of the basic values of fundamental justice.

A unifying theme is that they“reflect back on the basic components of the rule of law … and the requirement that Canadian laws be demonstrably justified in a freeand democratic society” (Sahaluk at paras 114 - 115). [75] Fundamental justice tolerates ex parte activity in necessary cases. Other procedural safeguards, such as subsequent disclosureor judicial review, are useful in assessing whether the requirements of fundamental justice are met (Ruby v Canada (Solicitor General),2002 SCC 75 at para 40). (

d) Alberta Bill of Rights [76]

Section 1(

a) of the Alberta Bill of Rights provides: 1 It is hereby recognized and declared that in Alberta there exist without discrimination by reason of race, national origin, colour,religion, sexual orientation, sex, gender identity or gender expression, the following human rights and fundamental freedoms, namely: (

a) the right of the individual to liberty, security of the person and enjoyment of property, and the right not to be deprived thereof exceptby due process of law; ... [77]

Section 2 provides: 2 Every law of Alberta shall, unless it is expressly declared by

an Act of the Legislature that it operates notwithstanding the Alberta Billof Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringementof any of the rights or freedoms herein recognized and declared. [78] Due process of law means according to the legal processes recognized by the legislatures and courts of Canada, and includes afair hearing in accordance with the principles of fundamental justice or procedural fairness (Lavallee v Alberta Securities Commission,2009 ABQB 17 at paras 180, 182, 198 - 200, appeal on other grounds dism 2010 ABCA 48). (

e) Abuse of process [79] This Court has inherent jurisdiction to prevent misuse of its procedure in a way that would be manifestly unfair to a litigant orwould bring the administration of justice into disrepute. In Toronto (City) v CUPE, 2003 SCC 63, [2003] 3 SCR 77 the Court stated: 35 Judges have an inherent and residual discretion to prevent an abuse of the court's process. This concept of abuse of process wasdescribed at common law as proceedings "unfair to the point that they are contrary to the interest of justice" (R. v. Power, (SCC), [1994] 1 S.C.R. 601, at p. 616), and as "oppressive treatment" (R. v.

Conway, (SCC), [1989] 1 S.C.R. 1659,at p. 1667). McLachlin J. (as she then was) expressed it this way in R. v. Scott, (SCC), [1990] 3 S.C.R. 979, at p. 1007: ... abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamentalprinciples of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousnessunderline the interest of the accused in a fair trial.

But the doctrine evokes as well the public interest in a fair and just trial process andthe proper administration of justice. 36 The doctrine of abuse of process is used in a variety of legal contexts. The unfair or oppressive treatment of an accused maydisentitle the Crown to carry on with the prosecution of a charge: Conway, supra, at p. 1667. In Blencoe v. British Columbia (HumanRights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, this Court held that unreasonable delay causing serious prejudice could amountto an abuse of process.

When the Canadian Charter of Rights and Freedoms applies, the common law doctrine of abuse of process issubsumed into the principles of the Charter such that there is often overlap between abuse of process and constitutional remedies (R. v.O'Connor, (SCC), [1995] 4 S.C.R. 411). The doctrine nonetheless continues to have application as a non-Charterremedy: United States of America v.

Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21, at para. 33. 37 In the context that interests us here, the doctrine of abuse of process engages "the inherent power of the court to prevent the misuseof its procedure, in a way that would ... bring the administration of justice into disrepute" (Canam Enterprises Inc. v. Coles (2000), (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC63)).

Goudge J.A. expanded on that concept in the following terms at paras. 55-56: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that wouldbe manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. Itis a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v.Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.). ...

[Underlining in passage quoted] [80] The doctrine of abuse of process concentrates on the integrity and fairness of the adjudicative process (CUPE at para 51;Behn v Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 SCR 227, at para 41). The doctrine of abuse of process is not limited to actsgiving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons (Blencoe at para 115).

Thelatter type of case arises where there is where unfairness or vexatiousness of such a degree that it contravenes fundamental notions ofjustice and thus undermines the integrity of the judicial process (Canada (Minister of Citizenship and Immigration) v Tobiass, (SCC), [1997] 3 SCR 391 at para 89). [81] The remedy of a stay is prospective and intended to protect the judicial process. Thus a stay may be granted where the abusehas resulted in destruction of vital evidence required for a fair trial or other forms of misconduct that go to trial fairness (R v Gangl, 2011ABCA 357 at paras 8 - 10).

A stay of proceedings usually will only be appropriate when two criteria are met: (1) the prejudice to theaccused's right to a fair trial or the integrity of the justice system caused by the abuse in question will be manifested, perpetuated oraggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice(O'Connor at para 75; Tobias at para 89 - 91).

Where there is still uncertainty, the court is required to balance the interests in favour ofgranting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has inhaving a final decision on the merits (R v Gambilla (appeal by Mamouni), 2017 ABCA 347 at paras 37 - 39). This test has been appliedin civil proceedings brought by the state (Tobiass at para 89 - 91). VI. Analysis (

a) The claimed requirement for advance judicial authorization [82] For the purposes of disclosure of wiretap information, the police service is distinct from the Crown (R v Shirose, (SCC), [1999] 1 SCR 565 at paras 27, 29, and 33; Ault v Canada (2007), (ON SC), 88 OR (3d) 541 (SCJ) atpara 25). [83] EF does not argue that the statutory provisions are unconstitutional under the Charter, but rather that subsection 193(2)(a)requires advance judicial authorization or compulsion and only applies to existing civil proceedings. He says that disclosure or use of theinformation was unreasonable under

section 8 of the Charter given the unlawful disclosures by CPS to the Minister, and by the Ministerin the civil proceedings, and the unlawful uses by the Minister (essentially the same disclosure by affidavit). He further says this activityis part of the matrix constituting a breach of his

section 7 rights. [84] Part of EF’s case that the state acted unlawfully in this case involves a paramountcy argument, challenging the operation ofsubsections 54.1(2), (3), and (4) of the VRCPA. He says that CPS cannot be required to disclose to the Minister because disclosurewould constitute a criminal offence. If these are inoperative, then the Minister may have had no means to access or use the wiretapevidence. [85] Findings of paramountcy are not open because notice was not provided as required by

section 24 of the Judicature Act. TheCourt might possibly adjourn the proceedings to permit EF to provide notice of his paramountcy argument. However, an adjournmentwas not requested, and there is no reasonable prospect of success on the paramountcy argument. [86] It is clear from Jacques and the wording of subsection 193(2)(

a) that an obligation under a provincial enactment to provideevidence for the purpose of a civil action is not in conflict with

section 193 of the Criminal Code. A disclosure demand under subsection54.1(3) of the VRCPA must be reasonable (VRCPA, subsection 54.1(2)). A demand that required CPS to violate subsection 193(1) ofthe Criminal Code would not be reasonable. Therefore, there is no potential conflict between the operation of

section 193 and section54.1. The reasonableness requirement in

section 54.1(2) ensures, as in Jacques (at para 80), that the requirement of disclosure will yieldto any applicable federal provision that prohibits disclosure. [87] In contrast, it is open to the Court to consider whether, as a matter of

interpretation of subsection 193(2)(

a) or civil procedure,CPS, the CPS Constable or the Minister required prior judicial authorization before disclosing or using wiretap evidence. (

i) Whether subsection 193(2)(

a) requires prior judicial authorization [88] In BC (Director of Civil Forfeiture) v Angel Acres Recreation and Festival Property Ltd, 2009 BCSC 322, app dism 2010BCCA 539, Mr Justice Davies declined to rule whether only compelled testimony fell in the ambit of subsection 193(2)(a), noting thedefendants’ argument that Tide Shore Logging v Commonwealth Insurance (1979), (BC SC), 13 BCLR 316 (SC), ReRoyal Commission of Inquiries into the Activities of Royal American Shows Inc. (No. 2) (1977), (AB CI), 39 CCC(2d) 22 (Alta Commission of Inquiry), R v Lessard (No. 3) (1986), (QC CS), 33 CCC (3d) 569 (QSC), and LawSociety of Upper Canada v Canada (Attorney General) (2008), (ON SC), 89 OR (3d) 209 required some form ofmid-proceeding compulsion. [89] It was not necessary in Angel Acres to rule on the point, because all of the information was already in the public domain soany case for alleged breach of subsection 193(1) would fail. [90] The cases mentioned by Mr Justice Davies do not explicitly impose a requirement of mid-proceeding testimonial compulsionby a judicial officer, hold that some other form of compulsion (such as by the Minister in the present case) is insufficient, or hold thatcompulsion is required at all.

[ 91 ] Rather, like Jacques , they reflect the procedural context in which other

section 193 issues arose. In Royal American Shows , subpoenas had been issued and the issue under consideration was whether a civil proceeding under provincial jurisdiction was within the subsection 193(2)(

a) exemption. The same issue was addressed in Tide Shore , where a party sought a records production order against an entity that was not a party to the action. The Law Society of Upper Canada case involved an application for records against a non- party who refused to provide them.

Lessard concerned the Crown’s objection during a criminal trial that permitting a police officer to play a wiretapped conversation to a witness during cross-examination, where it was unknown whether the witness was a participant in the conversation or could recognize the participants, was a judicial authorization of a criminal offence.

In short, none of these cases addresses voluntary provision of wiretap information for the purpose of providing evidence or, if compulsion is necessary, whether the compulsion must come from a Court or an entity (as in Royal American Shows ) acting under a statute which gives it the powers of a Court to summon and compel witnesses. [ 92 ] The modern starting point for statutory

interpretation is that 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. [ 93 ] Considering the ordinary sense of the language of subsection 193(2)(a), there is no explicit requirement of compulsion, or that any compulsion come from a judicial officer as opposed to a Court rule or legislative compulsion such as

section 54.1 of the VRCPA . The subsection says the proceeding must be one where a witness is compellable. The subsection does not explicitly say that the witness has to have gone through the formal process of being compelled. [ 94 ] The purpose of subsection 193(2)(

a) is not only to protect a witness who is compelled to give evidence from criminal responsibility under subsection 193(1). It is to ensure that courts of competent jurisdiction will have access to all information relevant to the proceedings before them, in a manner consistent with established rules of procedure ( Jacques at para 52 ).

Jacques construed the exemption widely, and held it applies to the discovery stage of an action and is not limited to the time when evidence is being given ( ibid at paras 48 - 51). [ 95 ] The statutory purpose does not alone imply a requirement for advance judicial authorization of disclosure. Jacques only says the subsection contemplates some established procedure for access in a given case. In Jacques a right of access existed under civil procedure rules for compelling records disclosure from non-parties.

The question whether the subsection only applies where disclosure is judicially authorized in advance was not before the Court. [ 96 ] Not every procedural mechanism for access to information in civil actions during or after the information discovery stage requires advance judicial compulsion. Members of the public are often compelled to provide evidence at various stages of an action without the need of prior judicial authorization.

In practice, many witnesses provide evidence by affidavit or oral testimony without being compelled [ 97 ] For example, in Alberta, a wide variety of current and former corporate officers and employees can be summoned to attend and give evidence in pre-trial discovery questioning proceedings.

At least since 1944, the Alberta Rules of Court have provided that such a person on being served with the necessary appointment and conduct money must attend without court order (Rules of the Supreme Court of Alberta (Consolidated), AR 716/1944, rr 240, 244, 245 (repealed); Alberta Rules of Court, AR 390/1968 , rr 200, 204, 205 (repealed); RR 5.17, 5.21, and 5.23).

The Court may intervene on application to control, limit or enforce the process, but no advance judicial authorization is required. [ 98 ] Another example is the practice of voluntarily providing evidence by affidavit, which is a form of evidence explicitly authorized and governed by the Rules (Part 6, particularly RR 6.11 and 8.17, and

Part 13, Division 4, Subdivision 2). It is rare that judicial authorization is needed to place affidavit evidence before the Court. Generally speaking, it only occurs during a trial where the parties have not agreed and the Court orders it (R 8.17(1)(c)). [ 99 ] In authorizing disclosure for the purpose of giving evidence in civil claims, Parliament probably assumed that a judge would be available to resolve disputes over disclosure or use. It is a dubious assumption that Parliament presumed that a judge would act as a mandatory pre-screen.

Making the latter assumption would ignore the numerous means of obtaining information in civil cases, which occur over the life of a civil suit and not only at the time evidence is being given before a judicial officer. Not all of those processes require judicial authorization.

It is reasonable to think that if the drafters intended judicial authorization as a prerequisite for subsection 193(2)(a), they would have said so. [ 100 ] In Wakeling the decision whether to disclose wiretap evidence to domestic or foreign authorities performing criminal investigations or prosecutions was in the hands of the law enforcement authority that gathered it (the RCMP). The Supreme Court of Canada refused to read into subsection 193(2)(

e) a requirement for advance judicial authorization of disclosure to the other authorities. [ 101 ] The result in Wakeling suggests that the existence of a Parliamentary intention to include a judicial pre-screen in subsection 193(2)(

a) is unlikely. Both disclosure purposes under subparas (

a) and (

e) of subsection 193(2) are important. Why would Parliament require judicial authorization of disclosure for one purpose but not the other? If Parliament had intended that, it would have said so. [ 102 ] This is not to say CPS is required to provide wiretap information to private citizens for civil suits. Here, the source of CPS’ obligation to disclose was the VRCPA , which overrides other requirements under provincial law that CPS keeps the information to itself.

I merely hold that if CPS is otherwise permitted or required to disclose wiretap information under whatever legislation governs its information, the provision of that information for the purpose of providing evidence in a civil action is not unlawful under subsection 193(1) of the Criminal Code . In practice CPS might often want a court order requiring disclosure to protect itself.

However, that is not a requirement of subsection 193(2)(a). (ii) Whether civil procedure requires prior judicial authorization [ 103 ] I turn to the issue of whether prior judicial authorization is required as a matter of civil procedure.

[104] Generally speaking, the issue of whether to permit disclosure or use of wiretap evidence (or generally, the Crown’s disclosurethat is required to be made to an accused in criminal proceedings) in a civil case should not be left to be resolved by the litigants alone.That is not adequate protection of the important privacy and trial fairness interests that could be damaged by inappropriate disclosure.Such a system does not ensure that the prosecuting or investigating authority has notice of the proposed disclosure or use of the recordsin a civil case or the opportunity to address whether that is appropriate or should be permitted on conditions. [105] Moreover, it is difficult if not impossible to remedy privacy breaches after disclosure is made.

Some Supreme Court of Canadadecisions emphasize the importance of protection at the point of disclosure. In O’Connor, Madam Justice L'Heureux-Dubé observed: 119 The essence of privacy, however, is that once invaded, it can seldom be regained. For this reason, it is all the more important forreasonable expectations of privacy to be protected at the point of disclosure. As La Forest J. observed in Dyment, supra [(SCC), [1988] 2 SCR 417], at p. 430: ...if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated.

This is inherentin the notion of being secure against unreasonable searches and seizures. Invasions of privacy must be prevented, and where privacy isoutweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated. [Emphasis in lastsentence added.] [Underlining in passage quoted] [106] Some jurisdictions have imposed a requirement of advance judicial authorization for disclosure or use of Crown criminaldisclosure in a civil case to ensure that these important interests are properly managed and resolved. P(

D) v Wagg (2004), (ON CA), 71 OR (3d) 229 (CA) dealt with the production in civil proceedings to which the accused was a party, of Crowndisclosure which originated in criminal proceedings.

The Court affirmed a screening mechanism, prior to disclosure, which operates asfollows: * the party in possession or control of the Crown brief must disclose its existence in the party's affidavit of documents and describe ingeneral terms the nature of its contents; * the party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namelythe Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on noticeto the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of thecontents should be produced; * the judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interestimmunity and generally whether "there is a prevailing social value and public interest in non-disclosure in the particular case thatoverrides the public interest in promoting the administration of justice through full access of litigants to relevant information". (Wagg at para 17). [107] The Court declined to find an implied undertaking applied to Crown disclosure in the possession of a party to a civil action(Wagg at para 47).

It found the jurisdiction to create the screening process in the court's inherent power to control its process and toprotect that process from being abused or obstructed (ibid at para 27). It decided that the discovery and production process provided forby the civil rules must be controlled to ensure that important state and other third party interests in Crown disclosure are protected (ibidat paras 28, 48 and 50). [108] Ault, also cited by EF, is an application of Wagg. There, the federal Crown obtained possession of a provincial Crown criminaldisclosure brief from the RCMP.

The Court held that if the materials were to be used in the civil trial, a Wagg motion ought to have beenbrought, absent consent to use of the brief by the Provincial Crown, the RCMP and the other parties to the civil suit. [109] There is a line of authority in the Alberta Provincial Court that an implied undertaking applies to the Crown’s criminaldisclosure brief which precludes its use or disclosure for purposes other than the criminal proceeding without judicial permission or theprosecution service’s consent.

Moreover, in practice the Alberta prosecution service may impose an express undertaking on defencecounsel. Where a need arises to use the brief in related civil proceedings, counsel typically deal with the matter by agreement or byseeking judicial release from any express or implied undertaking or trust condition applicable to the criminal disclosure. Sometimes anapplication is brought to determine whether public interest immunity or other form of confidentiality applies to the brief that affects itsuse in civil cases.

There is some debate whether an implied undertaking applies to the Crown brief, but in practice the matter ofproduction is typically dealt with by Court order or consent. See, for example, Bourgeois v Bolen, 2004 ABQB 35; Jackson v DA, 2005ABQB 702. [110] Relief from undertakings and trust conditions have no application in the present case because the Minister claims to haveacquired the records under

section 54.1 of the VRCPA. However, the Minister’s civil forfeiture action is subject to Alberta civil practice(VRCPA, s 51). Is the Minister required to make a Wagg motion under Alberta civil procedure when it seeks to use wiretap evidence in acivil case? EF submits that it is. [111] I agree with the reasoning in Wagg that the Court has inherent jurisdiction to regulate the fair and just progress of civil actions toprotect the interests engaged by the disclosure or use of materials acquired in criminal proceedings, and which are not yet part of thepublic record in those proceedings.

These concerns and the need of a forum to resolve them are authoritatively described by the SupremeCourt of Canada (Jacques at paras 82 - 86). [112] I agree with EF’s submissions that Wagg applies in Alberta. However the Wagg requirements cannot apply with their full effectto the Minister in proceedings under the VRCPA.

Section 51 of the VRPCA only applies the rules and practices of civil actions where not“otherwise provided for in this Act or the regulations....” The Wagg procedure must yield to Minister’s statutory obligation to apply fora restraint order ex parte.

[113] Moreover, there are good reasons that the application be made ex parte. The risk of dissipation or concealment of the allegedproceeds of crime and instruments of crime if notice were given is why the VRCPA requires the Minister to make a restraint orderapplication ex parte (Pazder at para 12).

Requiring the Wagg notifications in a VRCPA proceeding would not only run contrary to theVRCPA, but would also preclude the Minister from effectively using evidence that it acquired to perform its functions under the Act andthus impair the important statutory objectives of the VRCPA. [114] That does not mean that Wagg has no application in this civil forfeiture proceeding. [115] It is fundamental in civil actions that parties have a right to be heard before their rights are negatively affected. In appropriatecases, a party may proceed without notice to the affected party.

To maintain fundamental fairness and the integrity of the legal system,an applicant proceeding without notice to the opposing party is required to act with the utmost good faith and make full, fair and candiddisclosure of the facts. This disclosure must include facts which would militate against the application, defences to the application, andappropriate provisions to protect the reasonable interests of the party against whom an order is granted. Failure to comply with theseobligations may result in an ex parte order being set aside.

These propositions are well established in Alberta, and recently reviewed bythe Alberta Court of Appeal in Secure 2013 Group Inc v Tiger Calcium Services Inc, 2017 ABCA 316 at paras 41 - 50 (see also WAMv Alberta, 2017 ABCA 14 at para 19, cited by the Minister in argument). [116] This fundamental obligation applies to the Minister in applying ex parte for a restraint order under the VRCPA. There is nothingin the Act to suggest the obligation is excluded.

The Act provides for the application of the rules and practices in civil actions, andpermits an affiant to provide additional relevant matter in their affidavits (VRCPA, ss 4(3)(e), 19.3(3)(

d) and 51). The obligation issupported by judicial precedent (Mackie at paras 69 - 70, and 85, and authorities cited therein). [117] Applying for an ex parte restraint order using wiretap evidence could severely impact an accused person’s right to a fair trial inpending criminal proceedings or severely and negatively impact other Charter protected interests.

Therefore, the Minister’s affidavitmust be restricted to relevant and material extracts from wiretap evidence, and the Minister is obligated to address the issues of theimpact on the accused and trial fairness, as contemplated in Jacques and Wakeling, with the Judge hearing the ex parte application if theMinister’s civil forfeiture office is reasonably aware of facts giving rise to those issues. [118] This should not be taken as suggesting that the civil forfeiture office is obliged to make inquiries in any manner that could resultin disclosure to a target of its intention to seize property.

Like other litigants entitled to proceed ex parte, the civil forfeiture office mighthave imperfect information or inadequate time to fully develop this aspect of the case. In some cases, it may be necessary to hear fromthe accused, or the prosecution or investigation service (if information is not reasonably and confidentially available from them to thecivil forfeiture office), about the impact of the disclosure or use of the information on criminal proceedings. The necessary solution atthe ex parte stage might be a restricted court access application under

Part 6, Division 4 of the Rules of Court and a direction under R.6.28 exempting notice under R. 6.32 until the matter can be addressed by interested parties, coupled with a short return date for review ofthe access restriction. [119] However, I do not agree with EF’s position that there must be a prior judicial authorization obtained on notice to him. Althoughthe evidence does not suggest in this specific case that the cash was liable to dissipation in the short term as it had been seized by CPS,the Minister was required by law to proceed ex parte. The constitutional validity of that law is not an issue in this case. (

b) Disclosure or use of the wiretap evidence (

i) Whether subsection 193(2)(

a) applies only to existing proceedings [120] I do not agree with EF’s counsel that the civil proceeding in which the disclosure is made must be an existing proceeding. [121] It is commonplace under civil procedure that affidavits, evidence and witness statements are gathered for the dominant purposeof bringing or defending civil proceedings before they are commenced. This process is distinct from an investigation to determinewhether litigation will be brought. [122] A clear example of this distinction frequently arises in claims of litigation privilege from disclosure in civil actions.

The courtsapply the dominant purpose test - while a lawsuit need not have been initiated, and while a lawyer need not have been retained at the timethe statement or document was made or acquired, the party claiming privilege must establish that at the time of creation of the record thedominant purpose was use in litigation. This dominant purpose test represents a continuum, as there is frequently a distinction betweenan initial investigation of a matter (which will often provide the basis for determining whether litigation ought to be expected or not), andthe actual preparation of litigation.

Also, a servient purpose of use in litigation can mature into the dominant purpose as the underlyinginvestigation progresses and external events change. See, generally: Nova, An Alberta Corp. v Guelph Engineering Co. et al. (1984),1984 ABCA 38 , 30 Alta LR (2d) 183 (CA); Moseley v Spray Lakes Saw Mills

(1980) Ltd (1996), 1996 ABCA 141 ,184 AR 101 (CA); Specialty Steels, a Division of Pechiney Metal Service (Canada) Inc. v Suncor Inc., 1997 ABCA 338; and CanadianNatural Resources Ltd. v ShawCor Ltd., 2014 ABCA 289. Litigation privilege is a feature of many jurisdictions (Blank v Canada(Minister of Justice), 2006 SCC 39 and authorities cited therein). [123] The exemption in subsection 193(2)(a), so far as it applies to civil actions, should be interpreted against the background of thenormal progress of civil actions.

One can gather evidence for the purpose of a civil action before the action is technically commenced. [124] There is no reason to read additional words into the exemption, or to depart from the plain meaning of the phrase “for thepurpose of giving evidence ... in any civil proceeding ....” [125] Therefore, there is no reason to limit the exemption to existing proceedings. It is enough that the Minister has determined thatthe civil forfeiture proceeding will be brought.

In contrast, to construe the exemption to permit a person to provide evidence to anotherperson before the latter decides to bring a proceeding would gut the exemption and go far beyond its statutory purpose expressed inJacques. That purpose is that a Court and the parties (starting at the discovery phase of the proceeding) have access to relevant

information to prosecute and resolve the case, not that a party should have a wide ranging discovery of third parties before decidingwhether or not to bring an action. (ii) Use and disclosure in the CPS Constable’s affidavit [126] I refuse to find that the CPS Constable acted for a purpose other than the one permitted by section 193(2)(a). The Ministerprovided him a draft affidavit for use in Court. It was obvious to anyone reading the draft that the content was limited to relevant andmaterial information.

It is obvious from the evidence that the CPS Constable’s purpose was to provide relevant evidence in a pendingcivil proceeding. EF has not proved that the CPS Constable had any unlawful purpose. [127] I also reject EF’s argument that the CPS Constable publicly disclosed wiretap evidence. He swore an affidavit for the civilforfeiture office. He did not file the affidavit. He did not publicly disclose anything.

If there was an obligation to seal the affidavit frompublic view, it did not lie on him. [128] The Minister’s inclusion of wiretap evidence in the affidavit was reasonable. [129] I do not agree with the Minister’s submission that it was obliged by its duties of candour and disclosure on the ex parteapplication to tell the Court that it had wiretap evidence and therefore to add it to the CPS Constable’s affidavit.

An applicant is notobliged in an ex parte application in a civil action to tell the Court it has more evidence supporting its application than it chooses to relyon. [130] The Minster was nevertheless entitled to disclose and use the evidence under the VRCPA. Four considerations lead me to thisconclusion. [131] First, the wiretap evidence in the affidavit was limited in scope, and directly probative of the nature of EF’s activities and hisconnection with the residence. [132] Second, ex parte applications are a necessary feature of civil procedure systems and represent a balancing of interests.

TheMinister’s use of wiretap evidence in a civil forfeiture proceeding is not by itself unreasonable.

The target’s interests are adequatelyprotected by the Minister’s disclosure obligations on the ex parte application and the Court’s consideration whether there is a prospect ofserious prejudice to the target’s criminal proceedings that requires a remedy such as a temporary stay or a sealing order [133] Third, there was no evidence in this case that a stay of the civil action was necessary to protect EF’s interests in the criminalproceedings. [134] Fourth, the Minister is bound as a litigant to respect the open courts principle.

It would be absurd to suggest that the Ministercould not use wiretap evidence in a VRCPA proceeding merely because the evidence must be placed on a public court file under theconstitutionally required open courts principle in outlined in numerous precedents including Dagenais v Canadian Broadcasting Corp., (SCC), [1994] 3 SCR 835, R v Mentuck, 2001 SCC 76, [2001] 3 SCR 442, and Bragg Communications. [135] There is no evidence to show that EF’s interests in the pending criminal proceedings required suppression of wiretap evidenceto maintain his rights to a fair trial or sentencing.

For example, there is no scenario such as a pending jury trial coupled with a disputeover the admissibility of wiretap evidence that could lead, in Alberta, to a discretionary publication ban (R v Twitchell, 2010 ABQB692). [136] The anxiety EF deposes to is the product of the open courts requirement in a free and democratic society. No argument wasprovided to me that a restricted access order on civil file would have been proper under the Dagenais-Mentuck test.

EF has neverapplied to restrict access to the file. [137] Maybe if the Minister had an extremely persuasive case without the wiretap evidence, there was some indication of potentialprejudice to an accused person, and no attempt on the ex parte application to seal the evidence or discussion with the Court how toaccommodate the accused’s rights to a fair criminal trial, a judge could infer piling on that was unreasonable and unnecessary.

This caseis nowhere near that possibility. [138] The Minister should address EF’s privacy interests relating to the wiretap evidence in the ex parte application to the extent it isreasonably able to do so where the information reasonably available to it suggests there are such issues to address. I was not provided anyinformation about the submissions made in the ex parte application.

Moreover, there is no evidence that the ex parte application in factinterfered or could have interfered with EF’s rights to fair treatment in the criminal proceeding, that it would have been an appropriatecase to stay the civil action until criminal matters were resolved, or that a judge having considered the matter would have refused theRestraint Order or imposed restricted access over the wiretap evidence. [139] In short, I do not find that the Minister acted unreasonably, improperly or unlawfully. (iii) Disclosure by CPS to the Minister [140] EF submits that an offence under

section 193 of the Criminal Code is proved merely by the fact that the Minister was providedwiretap evidence before the affidavit was drafted. [141] I do not agree. [142] On CPS’ side, the Court should not infer, on a balance of probabilities in this civil action, the necessary intention element of theoffence or whether the exemption applies without a record of what was provided to the Minister, when, and accompanied by whatcommunications. For example, if CPS representatives understood the Minister had decided to bring a proceeding and required the

wiretap evidence for the purpose of providing evidence in the proceeding, and if the wiretap evidence provided did not include obviously extraneous or irrelevant materials, it would be difficult to see how CPS representatives could be found to have committed an offence. [ 143 ] On the Minister’s side, it would not be reasonable under

section 54.1 of the VRCPA to require information that the CPS is lawfully precluded under the Criminal Code from disclosing. Therefore, in the case of wiretap evidence, the Minister cannot reasonably require disclosure from CPS until it has decided to bring a proceeding, and then only for the purpose of providing relevant and material evidence to the Court. [ 144 ] EF bore the onus, on the balance of probabilities, to prove that CPS representatives acted unlawfully and the Minister acted unreasonably. The Court cannot try these questions in a factual vacuum.

EF has not met his onus. [ 145 ] The Minister refused to answer undertakings about the process by which it obtained the wiretap evidence. EF submits this refusal exacerbates the Minister’s breach. [ 146 ] I do not agree. [ 147 ] The fact that EF and the Minister had differing opinions in the litigation over the relevance of the manner in which the Minister acquired the information is not a reason to shift the onus to the Respondents or to draw an adverse inference against them. It was up to EF to apply to compel disclosure from the Minister or CPS under the Rules of Court (such as RR 3.14(1)(

c) or 6.8) to make its case. Then, the Minister’s claims of privilege could properly be addressed.

On the evidence provided, I cannot infer that wiretap evidence was given to the Minister before the Minister decided to bring an action, or that there are any circumstances to suggest the Minister acted unreasonably or CPS acted unlawfully. [ 148 ] Similarly, if the information was obtained by the Minister in circumstances that arguably made the acquisition or use unreasonable, or if the Minister obtained the information before she decided to bring a civil action, and if the Minister relied on that information in seeking the restrain order, then the Minister would have been obliged to disclose those facts in the application for the Restraint Order in accordance with her duty of disclosure and candour in making an ex parte application.

However, there is no proof that such circumstances existed in the present case. (

c) Charter rights/abuse of process/ Alberta Bill of Rights [ 149 ] EF bears the onus to show his Charter or other rights were breached. [ 150 ] Disclosure of wiretap evidence gathered under a valid judicial authorization by CPS to the Minister is subject to Charter considerations. The subsequent disclosure and use by the Minister against the person who was the subject of the wiretap is also subject to Charter considerations. [ 151 ] I do not find, in this

summary proceeding, a breach of

section 7 rights. [ 152 ] EF had a reduced (though not extinguished) expectation of privacy in the use of wiretap evidence in civil forfeiture proceedings ( Wakeling at para 39 ). [ 153 ] I have found the Minister did not act unreasonably, improperly or unlawfully (Part VI(

b) above). [ 154 ] Even if the Minster had acted wrongfully, I reject that EF has proved a serious state-imposed psychological stress, viewed from the perspective of a person of reasonable sensibility. [ 155 ] There is no evidence contrary to EF’s evidence that he is negatively impacted by public disclosure, and it would not be appropriate in a

summary chambers proceeding to attempt to weigh his evidence and decide whether to accept or reject it. I take it at face value and judge whether it is genuinely capable of meeting the legal test. There is ample recent precedent for a similar approach in

summary judgment applications or other chambers proceedings ( Goodswimmer v Canada (Attorney General) , 2017 ABCA 365 at paras 38 - 41 ; Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta , 2015 ABCA 101 at para 81 , leave to appeal refused [2015] SCCA No 184; Sherwood Steel Ltd v Odyssey Construction Inc ., 2014 ABCA 320 at para 8 ). [ 156 ] His evidence does not satisfy the requirements of G(

J) and Blencoe. There is nothing in EF’s evidence that indicates an impact beyond what I would expect to be experienced by an individual of reasonable sensibility whose misconduct in committing drug and firearms offences has been discovered and gives rise to legal proceedings in Canadian courts operating under the constitutionally required open Courts principle. The additional information from the wiretap is consistent with the other evidence of unlawful activity in the CPS Constable’s affidavit over which EF takes no objection. [ 157 ] I do not find, in this

summary proceeding, a breach of

section 8 rights. [ 158 ] The reasonableness requirement imports the requirement of relevancy, and an analysis of the specific risks and benefits of disclosure and use to assess whether conditions should have been placed on disclosure or use or whether disclosure or use would be so harmful that they should have been delayed pending developments in criminal proceedings. [ 159 ] As discussed above, there is no evidence to suggest that the Minister acted unreasonably or improperly by including some aspects of the wiretap evidence in the CPS Constable’s affidavit, or that the Minister, CPS or the CPS Constable acted unlawfully or unreasonably. [ 160 ] There is no issue under the Alberta Bill of Rights .

Due process and fundamental justice allow for ex parte applications in appropriate cases ( Ruby at para 40 ). The VRCPA requires the application be made ex parte . EF’s rights are adequately protected under the Wagg rule, modified as set forth above to accommodate the ex parte application.

[ 161 ] Similarly, the proceedings are not unfair or abusive, and certainly not to a degree that attracts any abuse of process concerns. [ 162 ] If I were incorrect in my conclusions that no judicial authorization is needed to disclose or use the wiretap evidence or that the Minister and CPS did not act improperly, I would not have stayed the proc

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