Imperial Oil Appellant v. Simon Jacques, Marcel Lafontaine, Automobile Protection Association, Attorney General of Quebec and Director of Public Prosecutions, 2014 SCC 66

SUPREME COURT OF CANADA Citation: Imperial Oil v.

Jacques , 2014 SCC 66, [2014] 3 S.C.R. 287 Date: 20141017 Docket: 35226, 35231 Between: Imperial Oil Appellant and Simon Jacques, Marcel Lafontaine, Automobile Protection Association, Attorney General of Quebec and Director of Public Prosecutions of Canada Respondents - and - Attorney General of Ontario, Couche-Tard Inc., Alimentation Couche-Tard Inc., Dépan-Escompte Couche-Tard Inc., Céline Bonin, Richard Bédard, Carole Aubut, Ultramar Ltd, Luc Forget, Jacques Ouellet, Pétroles Therrien Inc., Distributions Pétrolières Therrien Inc., Irving Oil Inc./Irving Oil Operations Ltd., Olco Petroleum Group Inc., Coop fédérée, Robert Murphy, Gary Neiderer, 9142-0935 Québec Inc., 9131-4716 Québec Inc., Groupe Denis Mongeau Inc., France Benoît, Richard Michaud, Luc Couturier, Guy Angers, Philippe Gosselin & Associés Ltd., André Bilodeau, Carol Lehoux, Claude Bédard, Stéphane Grant, Pétroles Cadrin Inc., Daniel Drouin, Pétroles Global inc./Global Fuels Inc., Pétroles Global (Québec) inc./Global Fuels (Quebec) Inc., Provigo Distribution Inc., Christian Payette, Pierre Bourassa, Daniel Leblond, Dépanneur Magog-Orford Inc, 2944-4841 Québec Inc., Société coopérative agricole des Bois-Francs, Gestion Astral Inc., Lise Delisle, 134553 Canada Inc., Garage Luc Fecteau et fils Inc., Station-Service Jacques Blais Inc., 9029-6815 Québec Inc., Garage Jacques Robert Inc., Gérald Groulx Station Service Inc., Services Autogarde D.D.

Inc., 9010-1460 Québec Inc., Armand Pouliot, Julie Roberge, Station-Service Pouliot et Roberge s.e.n.c., 9038-6095 Québec Inc., 9083-0670 Québec Inc., Gestion Ghislain Lallier Inc., 2429-7822 Québec Inc., 2627-3458 Québec Inc., 9098-0111 Québec Inc., 2311-5959 Québec Inc., Gaz-O-Pneus Inc., C. Lagrandeur et fils Inc., Universy Galt Service Inc., Valérie Houde, Sylvie Fréchette, Robert Beaurivage, 9011-4653 Québec Inc., Pétroles Remay Inc., Variétés Jean Yves Plourde Inc. and 9016-8360 Québec Inc.

Interveners And Between: Couche-Tard Inc., Alimentation Couche-Tard Inc., Dépan-Escompte Couche-Tard Inc., Céline Bonin, Richard Bédard, Ultramar Ltd, Pétroles Therrien Inc., Distributions Pétrolières Therrien Inc, Irving Oil Operations Ltd., Olco Petroleum Group Inc., Coop fédérée, Robert Murphy, Gary Neiderer, 9142-0935 Québec Inc., 9131-4716 Québec Inc. and Groupe Denis Mongeau Inc.

Appellants and Simon Jacques, Marcel Lafontaine, Automobile Protection Association, Attorney General of Quebec, Director of Public Prosecutions of Canada, France Benoît, Richard Michaud, Luc Couturier, Guy Angers, Philippe Gosselin & Associés ltée, André Bilodeau, Carol Lehoux, Claude Bédard, Stéphane Grant, Pétroles Cadrin Inc., Daniel Drouin, Pétroles Global inc./Global Fuels Inc., Pétroles Global (Québec) inc./Global Fuels (Quebec) Inc., Provigo Distribution Inc., Christian Payette, Pierre Bourassa, Daniel Leblond, Dépanneur Magog-Orford Inc., 2944-4841 Québec Inc., Société coopérative agricole des Bois-Francs, Gestion Astral Inc., Lise Delisle, 134553 Canada Inc., Garage Luc Fecteau et fils Inc., Station-Service Jacques Blais Inc., 9029-6815 Québec Inc,, Garage Jacques Robert Inc., Gérald Groulx Station-Service Inc., Services Autogarde D.D.

Inc., 9010-1460 Québec Inc., Armand Pouliot, Julie Roberge, Station- Service Pouliot et Roberge s.e.n.c., 9038-6095 Québec Inc., 9083-0670 Québec Inc., Gestion Ghislain Lallier Inc., 2627-3458 Québec Inc., 2429-7822 Québec Inc., Universy Galt Service Inc., 9098-0111 Québec Inc., 2311-5959 Québec Inc., Gaz-O-Pneus Inc., C. Lagrandeur et fils Inc., Valérie Houde, Sylvie Fréchette, Robert Beaurivage, 9011-4653 Québec Inc., Pétroles Remay Inc., Variétés Jean- Yves Plourde Inc., 9016-8360 Québec Inc., Carole Aubut, Luc Forget and Jacques Ouellet Respondents

- and - Attorney General of Ontario Intervener Official English Translation: Joint reasons of LeBel and Wagner JJ. Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Wagner JJ. Joint Reasons for Judgment: (paras. 1 to 88) Concurring Reasons: (paras. 89 to 91) Dissenting Reasons: (paras. 92 to 107) LeBel and Wagner JJ. (Rothstein, Cromwell and Moldaver JJ. concurring) McLachlin C.J. Abella J. imperial oil v. jacques, 2014 SCC 66, [2014] 3 S.C.R. 287 Imperial Oil Appellant v.

Simon Jacques, Marcel Lafontaine, Automobile Protection Association, Attorney General of Quebec and Director of Public Prosecutions of Canada Respondents and Attorney General of Ontario, Couche-Tard Inc., Alimentation Couche-Tard Inc., Dépan-Escompte Couche-Tard Inc., Céline Bonin, Richard Bédard, Carole Aubut, Ultramar Ltd., Luc Forget, Jacques Ouellet, Pétroles Therrien Inc., Distributions Pétrolières Therrien Inc., Irving Oil Inc./Irving Oil Operations Ltd., Olco Petroleum Group Inc., Coop fédérée, Robert Murphy, Gary Neiderer, 9142-0935 Québec Inc., 9131-4716 Québec Inc., Groupe Denis Mongeau Inc., France Benoît, Richard Michaud, Luc Couturier, Guy Angers, Philippe Gosselin & Associés ltée, André Bilodeau, Carol Lehoux, Claude Bédard, Stéphane Grant, Pétroles Cadrin Inc., Daniel Drouin, Pétroles Global inc./Global Fuels Inc.,

Pétroles Global (Québec) inc./Global Fuels (Québec) Inc., Provigo Distribution Inc., Christian Payette, Pierre Bourassa, Daniel Leblond, Dépanneur Magog-Orford Inc., 2944-4841 Québec Inc., Société coopérative agricole des Bois-Francs, Gestion Astral Inc., Lise Delisle, 134553 Canada Inc., Garage Luc Fecteau et fils Inc., Station-Service Jacques Blais Inc., 9029-6815 Québec Inc., Garage Jacques Robert Inc., Gérald Groulx Station Service Inc., Services Autogarde D.D.

Inc., 9010-1460 Québec Inc., Armand Pouliot, Julie Roberge, Station-Service Pouliot et Roberge s.e.n.c., 9038-6095 Québec Inc., 9083-0670 Québec Inc., Gestion Ghislain Lallier Inc., 2429-7822 Québec Inc., 2627-3458 Québec Inc., 9098-0111 Québec Inc., 2311-5959 Québec Inc., Gaz-O-Pneus Inc., C. Lagrandeur et fils Inc., Universy Galt Service Inc., Valérie Houde, Sylvie Fréchette, Robert Beaurivage, 9011-4653 Québec Inc., Pétroles Remay Inc., Variétés Jean-Yves Plourde Inc. and 9016-8360 Québec Inc.

Interveners - and - Couche-Tard Inc., Alimentation Couche-Tard Inc., Dépan-Escompte Couche-Tard Inc., Céline Bonin, Richard Bédard, Ultramar Ltd., Pétroles Therrien Inc., Distributions Pétrolières Therrien Inc., Irving Oil Operations Ltd., Olco Petroleum Group Inc., Coop fédérée, Robert Murphy, Gary Neiderer, 9142-0935 Québec Inc., 9131-4716 Québec Inc. and Groupe Denis Mongeau Inc. Appellants v.

Simon Jacques, Marcel Lafontaine, Automobile Protection Association, Attorney General of Quebec, Director of Public Prosecutions of Canada, France Benoît, Richard Michaud, Luc Couturier, Guy Angers, Philippe Gosselin & Associés ltée, André Bilodeau, Carol Lehoux, Claude Bédard, Stéphane Grant, Pétroles Cadrin Inc., Daniel Drouin, Pétroles Global inc./ Global Fuels Inc., Pétroles Global (Québec) inc./Global Fuels (Québec) Inc., Provigo Distribution Inc., Christian Payette, Pierre Bourassa, Daniel Leblond, Dépanneur Magog-Orford Inc., 2944-4841 Québec Inc., Société coopérative agricole des Bois-Francs, Gestion Astral Inc., Lise Delisle, 134553 Canada Inc., Garage Luc Fecteau et fils Inc., Station-Service Jacques Blais Inc., 9029-6815 Québec Inc., Garage Jacques Robert Inc., Gérald Groulx Station-Service Inc., Services Autogarde D.D.

Inc., 9010-1460 Québec Inc., Armand Pouliot, Julie Roberge, Station-Service

Pouliot et Roberge s.e.n.c., 9038-6095 Québec Inc., 9083-0670 Québec Inc., Gestion Ghislain Lallier Inc., 2627-3458 Québec Inc., 2429-7822 Québec Inc., Universy Galt Service Inc., 9098-0111 Québec Inc., 2311-5959 Québec Inc., Gaz-O-Pneus Inc., C. Lagrandeur et fils Inc., Valérie Houde, Sylvie Fréchette, Robert Beaurivage, 9011-4653 Québec Inc., Pétroles Remay Inc., Variétés Jean-Yves Plourde Inc., 9016-8360 Québec Inc., Carole Aubut, Luc Forget and Jacques Ouellet Respondents and Attorney General of Ontario Intervener Indexed as: Imperial Oil v.

Jacques 2014 SCC 66 File Nos.: 35226, 35231. 2014: April 24; 2014: October 17.

Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Wagner JJ. on appeal from the court of appeal for quebec Evidence — Civil procedure — Disclosure — Plaintiffs in class action filing motion for disclosure of documents in which they requested disclosure by third party of recordings of private communications intercepted in course of criminal investigation — Defendants to class action objecting to disclosure on basis of immunities from disclosure provided for in legislation or established by courts — Whether party to civil proceeding can request disclosure of recordings of private communications intercepted by state in course of criminal investigation — How conditions for and limits on disclosure are to be set — Code of Civil Procedure, CQLR, c.

C-25, art. 402 — Criminal Code, R.S.C. 1985, c. C-46, s. 193(2) (a) — Competition Act, R.S.C. 1985, c. C-34, ss. 29 , 36 . To carry out the “Octane” investigation into allegations of a conspiracy to fix gasoline pump prices in certain regions of Quebec, the Competition Bureau of Canada obtained judicial authorizations under

Part VI of the Criminal Code that enabled it to intercept and record more than 220,000 private communications. As a result of the investigation, charges were laid against 54 persons, including certain of the appellants. In parallel with the criminal proceedings, the respondents instituted a class action against a number of persons, including the appellants, alleging that they had engaged in anti-competitive practices in breach of the duties imposed by art. 1457 of the Civil Code of Québec (“ C.C.Q. ”) and s. 36 of the Competition Act .

In support of their action, they filed, under art. 402 of the Code of Civil Procedure (“ C.C.P. ”), a motion in which they sought disclosure by the federal Director of Public Prosecutions and the Competition Bureau of the recordings that had already been disclosed to the accused in the parallel criminal proceedings. The appellants contested the motion. The Superior Court, being of the opinion that the evidence requested by the respondents was relevant and that neither the Competition Act nor the Criminal Code created an immunity from disclosure, granted the motion.

To control the disclosure process and the scope of the disclosure, it ordered that the Director of Public Prosecutions and the Competition Bureau disclose the requested recordings solely to the lawyers and experts participating in the civil proceedings, and that they screen the recordings to protect the privacy of third parties having nothing whatsoever to do with the proceedings. The Court of Appeal refused leave to appeal that decision. Held (Abella J. dissenting): The appeals should be dismissed.

Per LeBel, Rothstein, Cromwell, Moldaver and Wagner JJ.: A party to a civil proceeding can request the disclosure of recordings of private communications intercepted by the state in the course of a criminal investigation. Although s. 29 of the Competition Act provides for confidentiality of the Competition Bureau’s record of investigation, it does not prohibit the disclosure of private communications intercepted under

Part VI of the Criminal Code , as such communications are not among the types of information referred to in s. 29(1)(

a) to ( e ). Moreover, even though s. 193(1) of the Criminal Code lays down the principle that it is unlawful to disclose or use an intercepted private communication without the consent of the originator or the intended recipient of the communication, this general prohibition is tempered by some exemptions. Section 193(2)(

a) provides that a disclosure is not an offence under s. 193(1) if it is made “in the course of or for the purpose of giving evidence in any civil . . . proceedings”. Nothing in the words of this provision justifies limiting its application to the time when evidence is being given. The documents requested at the exploratory stage of any civil proceeding may be requested “for the purpose” of testifying at the hearing. The provision’s object and context admit of no other conclusion. Section 193(2) (

a) does not have facilitating the fight against crime as its sole purpose; rather, its object is to ensure that courts will have access to all information relevant to the proceedings before them. Similarly, the case law and the academic literature support a broad

interpretation of s. 193(2)( a ). Finally, the admissibility in evidence of recordings of private communications is governed by s. 24(2) of the Charter and the various applicable provincial statutes.

Section 193 of the Criminal Code creates neither an actual disclosure mechanism nor a right of access. Since this case involves civil proceedings brought under s. 36 of the Competition Act and art. 1457 C.C.Q. , the procedure for seeking access to the recordings is the one provided for in art. 402 C.C.P. The first paragraph of art. 402 C.C.P. empowers a judge to order the disclosure of

documents relating to the issues between the parties that are in the possession of a third party. Judges have great discretion, but willgenerally favour disclosure. Nevertheless, a judge must deny a request for disclosure in the face of an immunity from disclosure that iseither provided for in legislation or established by the courts.

In exercising his or her discretion, the judge may consider, inter alia, therelevance of the documents to the issues between the parties, the extent to which the privacy of a party or of a third party to theproceedings is invaded and the importance of remaining sensitive to the duty to protect a person’s privacy. The concept of relevance isgenerally interpreted broadly at the exploratory stage of the proceedings.

The impact of disclosure on the rights of innocent personsrequires that care be taken in considering motions for disclosure, although it cannot constitute a cause why evidence should not bedisclosed in all circumstances. The scope of the protection of the right of the innocent to privacy must always be assessed in light of thevarious interests at stake.

Finally, by giving judges the power to refuse to order disclosure where a barrier to disclosure is provided for inlegislation or has been established by the courts, art. 402, para. 1 already provides that, where necessary, the principle of disclosure itcodifies will yield to any applicable federal provision that prohibits disclosure. Judges also have great discretion to control the process of disclosing evidence at the exploratory stage of proceedings, and toset conditions for and limits on disclosure.

In doing so, they must weigh the interests involved, but must at the same time limit thepotential for invasion of privacy and avoid unduly limiting access to relevant documents so as to ensure that the proceedings remain fair,the search for truth is not obstructed and the proceedings are not unjustifiably delayed. Where the requested documents result from acriminal investigation, the judge must also consider the impact of disclosure on the efficient conduct of the criminal proceedings and onthe right of the accused to a fair trial.

However, at the exploratory stage of a proceeding, the right to privacy, the efficient conduct ofcriminal proceedings and the right to make full answer and defence are, to some degree, protected by the duty of confidentiality imposedon the parties, their counsel and their experts. Nevertheless, judges have the powers they need to impose other conditions.

In every case,the judge must, bearing in mind the proportionality principle that is inherent in art. 402 C.C.P. and is also spelled out in art. 4.2 C.C.P.,consider the financial and administrative impact of the conditions being imposed and how they will affect the general conduct of theproceedings. The order of the Superior Court in this case is consistent with these principles. There is no factual or legal impediment todisclosure of the documents requested by the respondents under art. 402 C.C.P. Nor is there anything to cast doubt on the SuperiorCourt’s finding that the requested evidence is relevant.

Furthermore, the scope of the disclosure order is limited so as to protect the rightto privacy of all those whose communications were intercepted. The limits also ensure that disclosure of the information will not hinderthe efficient conduct of the criminal proceedings or violate the right of the parties still facing criminal charges to a fair trial. There is noindication that the order imposes an undue financial and administrative burden on the third party in question in this case.

Per McLachlin C.J.: The power to obtain disclosure of intercepted private communications in this case arises solely from art.402 C.C.P., not s. 193(2)(

a) of the Criminal Code. Where the state is otherwise empowered or required to disclose intercepted privatecommunications in civil proceedings, s. 193(2)(

a) protects the authorities from criminal sanction. Per Abella J. (dissenting): It is not legally permissible in Canada to authorize electronic surveillance for the purpose ofgathering evidence in civil proceedings. Electronic surveillance can only be authorized in the limited circumstances set out in

Part VI ofthe Criminal Code for the investigation of serious crimes, or under the Canadian Security Intelligence Service Act for the investigationof threats to national security.

Part VI recognizes the uniquely intrusive character of electronic surveillance by permitting stateinterception of private communications only if express safeguards are followed. Until a determination has been made as to the legality ofa challenged interception, the communication is not admissible in a criminal proceeding. Section 193(2)(

a) should not be interpreted in a way that overrides the privacy protections in

Part VI. Section 193(2)(

a) doesnot create a right to access intercepted communications and is not available to pre-empt a judicial determination about the validity of aninterception. Until those interceptions have been found, or are conceded to be, lawful and admitted into evidence in a criminalproceeding, they retain their private character for all purposes and are not available to the public. Using s. 193(2)(

a) to permit litigants ina civil case to get disclosure of communications intercepted in the course of a criminal investigation before a challenged interception isfound to be lawful, allows those litigants to benefit indirectly from an extraordinary investigative technique they are otherwise not legallyentitled to. The general right to privacy and the specific right not to have confidential information disclosed are expressly protected inQuebec’s Charter of human rights and freedoms.

The discretion in art. 402 of the Code of Civil Procedure to order disclosure shouldtherefore not be so interpreted as to extinguish the scrupulous protection for the non-disclosure of intercepted communications found inother parts of the law. This provision gives significant discretion to a trial judge, but it does not give him or her carte blanche to orderdisclosure of communications protected by an almost impermeable legal coating like a privileged communication. Evidence gatheredthrough electronic surveillance is entitled to the same protection and, as a result, is not amenable to a balancing exercise.

Cases Cited By LeBel and Wagner JJ. Considered: Tide Shore Logging Ltd. v. Commonwealth Insurance Co. (1979), (BC SC), 13 B.C.L.R. 316;Ault v. Canada (Attorney General) (2007), (ON SC), 88 O.R. (3d) 541; Canada (Procureur général) v.Charbonneau, 2012 QCCS 1701 ; distinguished: Michaud v. Quebec (Attorney General), (SCC), [1996] 3S.C.R. 3; referred to: Jacques v. Petro-Canada, 2009 QCCS 5603 ; Glegg v. Smith & Nephew Inc., 2005 SCC 31, [2005] 1S.C.R. 724; P. (D.) v. Wagg (2004), (ON CA), 71 O.R. (3d) 229; R. v. Nikolovski, (SCC), [1996] 3S.C.R. 1197; Frenette v.

Metropolitan Life Insurance Co., (SCC), [1992] 1 S.C.R. 647; Jones v. National Coal Board,[1957] 2 Q.B. 55; Technologie Labtronix Inc. v. Technologie Micro Contrôle Inc., (QC CA), [1998] R.J.Q. 2312;Blaikie v. Commission des valeurs mobilières du Québec, (QC CA), [1990] R.D.J. 473; Autorité des marchésfinanciers v. Panju, 2008 QCCA 832, [2008] R.J.Q. 1233; Fédération des infirmières et infirmiers du Québec v. Hôpital Laval, 2006QCCA 1345, [2006] R.J.Q. 2384; Westfalia Surge Canada Co. v. Ferme Hamelon (JFD) et Fils, 2005 QCCA 514 ;Westinghouse Canada Inc. v.

Arkwright Boston Manufacturers Mutual Insurance Co., (QC CA), [1993] R.J.Q. 2735;Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743; Communauté urbaine de Montréal v.

Chubb du Canada compagnie d’assurances, (QC CA), [1998] R.J.Q. 759; Kruger Inc. v. Kruger, (QC CA), [1987] R.D.J. 11; Industries GDS inc. v. Carbotech inc., 2005 QCCA 655 ; Corporation de financement commercialTransamérica Canada v. Beaudoin, (QC CA), [1995] R.D.J. 633; Union Canadienne, compagnie d’assurance v. St-Pierre, 2012 QCCA 433, [2012] R.J.Q. 340; Goulet v. Lussier, (QC CA), [1989] R.J.Q. 2085; M. (A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157; R. v. Corbett, (SCC), [1988] 1 S.C.R. 670; R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577; Lyons v. The Queen, (SCC), [1984] 2 S.C.R. 633; R. v.

Duarte, (SCC),[1990] 1 S.C.R. 30; R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3; R.v. Welsh (1977), (ON CA), 15 O.R. (2d) 1; Subilomar Properties (Dundas) Ltd. v. Cloverdale Shopping Centre Ltd., (SCC), [1973] S.C.R. 596; Air Canada v. Ontario (Liquor Control Board), (SCC), [1997] 2 S.C.R.581; Law Society of Upper Canada v. Canada (Attorney General) (2008), (ON SC), 89 O.R. (3d) 209; Re Board ofCommissioners of Police for City of Thunder Bay and Sundell (1984), (ON SCDC), 15 C.C.C. (3d) 574; Children’sAid Society of Thunder Bay (District) v.

D. (S.), 2011 ONCJ 100, 2 R.F.L. (7th) 202; Attorney General of Nova Scotia v. MacIntyre, (SCC), [1982] 1 S.C.R. 175; R. v. Durette, (SCC), [1994] 1 S.C.R. 469; Vickery v. Nova Scotia SupremeCourt (Prothonotary), (SCC), [1991] 1 S.C.R. 671; Phillips v. Vancouver Sun, 2004 BCCA 14, 27 B.C.L.R. (4th) 27;Marché Lionel Coudry inc. v. Métro inc., ; Southam Inc. v. Landry, ; Daishowa inc. v.Commission de la santé et de la sécurité du travail, [1993] R.J.Q. 175, aff’d [1993] AZ-50072356; S.M. v. S.G., (QCCA), [1986] R.D.J. 617. By Abella J. (dissenting) R. v. Duarte, (SCC), [1990] 1 S.C.R. 30; R. v.

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APPEAL from a judgment of the Quebec Court of Appeal (Morin, Rochon and Vézina JJ.A.), 2012 QCCA 2265 , [2012] AZ-50922387, [2012] J.Q. n o 16661 (QL), 2012 CarswellQue 13421, refusing leave to appeal a decision of Bélanger J., 2012 QCCS 2954 , [2012] AZ-50869641, [2012] J.Q. n o 6264 (QL), 2012 CarswellQue 6715. Appeal dismissed, Abella J. dissenting.

APPEAL from a judgment of the Quebec Court of Appeal (Morin, Rochon and Vézina JJ.A.), 2012 QCCA 2266 , [2012] AZ-50922388, [2012] J.Q. n o 16662 (QL), 2012 CarswellQue 13424, refusing leave to appeal a decision of Bélanger J., 2012 QCCS 2954 , [2012] AZ-50869641, [2012] J.Q. n o 6264 (QL), 2012 CarswellQue 6715. Appeal dismissed, Abella J. dissenting. Billy Katelanos , Paule Hamelin and Guy Régimbald , for the appellant Imperial Oil.

Jean-Philippe Groleau , Louis-Martin O’Neill , Louis Belleau , Julie Chenette , Sylvain Lussier , Elizabeth Meloche , Sidney Elbaz , Rachel April Giguère , Marie-Geneviève Masson , Pascale Cloutier and Fadi Amine , for the appellants Couche-Tard Inc. et al. Louis P. Bélanger and Julie Girard , for the appellant Ultramar Ltd. Pierre LeBel , Guy Paquette , Nicolas Guimond and Claudia Lalancette , for the respondents Simon Jacques et al. Dominique A. Jobin , Patricia Blair , Émilie-Annick Landry-Therriault and Jean-Vincent Lacroix , for the respondent the Attorney General of Quebec.

François Lacasse and Stéphane Hould , for the respondent the Director of Public Prosecutions of Canada. Deborah Calderwood and Megan Stephens , for the intervener the Attorney General of Ontario. English version of the judgment of LeBel, Rothstein, Cromwell, Moldaver and Wagner JJ. delivered by LeBel and Wagner JJ. — I. Introduction [ 1 ] The question raised by the appeals before the Court is whether a party to a civil proceeding can request the disclosure of recordings of private communications intercepted by the state in the course of a criminal investigation. II.

Origin of the Case [ 2 ] In the early summer of 2004, the Competition Bureau of Canada began an investigation (“the Octane investigation”) into allegations of a conspiracy to fix gasoline pump prices in certain regions of Quebec. To carry out the investigation, the Competition Bureau obtained from the Court of Québec, under

Part VI of the Criminal Code , R.S.C. 1985, c. C-46 (“ Cr. C. ”), seven judicial authorizations that enabled it to intercept and record more than 220,000 private communications. [ 3 ] In 2008, as a result of the Octane investigation, a series of charges were laid against 13 natural persons and 11 legal persons. The Crown alleged that they had conspired to fix pump prices in several cities in the following regions: Estrie, Chaudière- Appalaches and Centre-du-Québec. In July 2010 and September 2012, other charges for the same offences were laid against another 30 persons, bringing the total number of accused to 54.

Some of the appellants in this Court were or still are among the accused. [ 4 ] In parallel with the criminal proceedings, the respondents Simon Jacques, Marcel Lafontaine and Automobile Protection Association (“Jacques et al.”) instituted a class action in the Quebec Superior Court against a number of persons, including the

appellants, alleging that they had breached the duties imposed on them by art. 1457 of the Civil Code of Québec (“C.C.Q.”) and s. 36 ofthe Competition Act, R.S.C. 1985, c. C-34, by engaging in anti-competitive practices. On November 30, 2009, the Superior Courtauthorized the bringing of the class action (Jacques v. Petro-Canada, 2009 QCCS 5603 ), which would subsequently beamended. [5] On December 8, 2011, in support of their action, the respondents filed a motion for the disclosure of documentsunder art. 402 of the Code of Civil Procedure, CQLR, c. C-25 (“C.C.P.”).

They requested that the federal Director of Public Prosecutions(“DPP”) and the Competition Bureau disclose to them all the private communications that had been intercepted in the course of theOctane investigation. Shortly before the motion was heard, the respondents narrowed its scope, limiting it to the recordings that hadalready been disclosed to the accused in the parallel criminal proceedings. The appellants contested the motion. III. Judicial History A. Decision of the Superior Court (2012 QCCS 2954 ) [6] On June 28, 2012, Bélanger J., as she then was, granted the respondents’ motion.

She ordered that the CompetitionBureau and the DPP disclose the requested recordings solely to the lawyers and experts participating in the civil proceedings, and thatthey screen the recordings to protect the privacy of [translation] “third parties having nothing whatsoever to do with the proceedings”(para. 98). [7] In support of her decision, Bélanger J. began by noting that the courts have the power to order the disclosure ofevidence in the possession of a third party as long as it is relevant (arts. 402 and 1045 C.C.P.).

However, that power is limited if theevidence in question is subject to immunity from disclosure. Belanger J. found that no such immunity applies in this case. Contrary towhat the appellants were arguing, neither the Competition Act nor the Criminal Code provides for one.

Section 29 of the Competition Actexpressly provides that evidence obtained may be disclosed “for the purposes of the administration or enforcement” of that Act, which iswhat was at issue in this case. And under s. 193(2)(

a) Cr. C., a person may disclose a private communication in the course of or for thepurpose of giving evidence in any civil proceedings. In this regard, Bélanger J. stated that this Court’s decision in Michaud v. Quebec(Attorney General), (SCC), [1996] 3 S.C.R. 3, does not limit the application of s. 193(2)(

a) to situations in which theplaintiff in the civil proceedings is also the “target” of the wiretap. As a result, there was no impediment to disclosing the wiretapinformation in the case at bar. [8] Bélanger J. then stated that, because of the exceptional nature of the interception of private communications, thedisclosure of such information must be subject to proper controls. Relying on this Court’s decision in Glegg v. Smith & Nephew Inc.,2005 SCC 31, [2005] 1 S.C.R. 724, she indicated that the courts have the powers they need to control the disclosure process and thescope of the disclosure.

In her view, the right of access to information obtained from wiretaps must be weighed so as to strike anappropriate balance between the rights of the parties and ensure the proper administration of justice. [9] After listing the various factors to be considered in this weighing exercise, Bélanger J. concluded that the motionshould be granted except for communications involving [translation] “third parties having nothing whatsoever to do with theproceedings” (para. 98).

Various factors weighed in favour of disclosing the evidence in this case, including the principles of expeditiousconduct of proceedings and equality of the parties, the importance and reliability of the audio evidence in the search for truth, and thelow risk of a violation of the rights to privacy and to a fair trial that were protected by the implied duty of confidentiality and by the termsof the order.

However, the disclosure was to be limited to the lawyers and experts participating in the civil proceedings in order to avoidinfluencing the conduct of the criminal cases. [10] Belanger J. also briefly discussed, and rejected, the alternative argument that s. 193 Cr. C. was of no force or effect.She noted that the disclosure order was based not on that section, but on the Competition Act and the Code of Civil Procedure. Theapplication of s. 193 Cr. C. therefore did not result in an infringement of s. 8 of the Canadian Charter of Rights and Freedoms or s. 2(e)of the Canadian Bill of Rights, R.S.C. 1985, App.

III. [11] Finally, regarding the appellant Imperial Oil, Bélanger J. found that the fact that it was not involved in the criminalproceedings did not change its status for the purposes of the motion. It was not a third party to the civil proceedings, so it had the samerights and obligations as its co-defendants. As a result, the intercepted communications had to be disclosed if they were relevant.

In anyevent, Bélanger J. added, Imperial Oil could object to the production of the evidence, if need be, at the proper time. [12] In the end, Bélanger J. ordered that the communications intercepted in the course of the Octane investigation thathad already been disclosed to the accused in the criminal proceedings be disclosed to the lawyers and experts participating in the civilproceedings. These communications would have to be screened, however, to protect the privacy rights of third parties having nothingwhatsoever to do with the proceedings. B.

Decisions of the Court of Appeal (2012 QCCA 2265 and 2012 QCCA 2266 ) [13] In two separate judgments, Morin, Rochon and Vézina JJ.A. of the Court of Appeal declined to review the merits ofthe motion judge’s decision, finding that art. 29 C.C.P., which provides for appeals from interlocutory decisions, did not apply in thiscase.

Moreover, they noted, the courts have consistently held that a judgment dismissing an objection to evidence may not in principle beappealed, and the impugned order, which was based on the Code of Civil Procedure, the Criminal Code and the Competition Act, hadbeen made at a stage prior to the presentation of evidence. The Court of Appeal accordingly dismissed the motions for leave to appeal. IV. Issues and Positions of the Parties A. Issues [14] The appeals before this Court raise two issues.

First, the Court must rule on the validity of an order, made in thecourse of civil proceedings, for disclosure of a series of communications that had been intercepted for the purposes of a criminal

investigation. More specifically, the Court must decide whether there is any reason why the communications intercepted by the state in the course of the Octane investigation should not be disclosed to the parties to the civil proceedings. Second, the Court must rule on the constitutionality of art. 402 C.C.P. , on which the motion judge’s order was based.

In this regard, the Chief Justice stated the following question on September 23, 2013: Does art. 402 of the Code of Civil Procedure . . . apply constitutionally having regard to the legislative authority of Parliament under s. 91(27) of the Constitution Act, 1867 ? [ 15 ] In the alternative, the appellants ask the Court to decide whether the Court of Appeal erred in refusing to grant them leave to appeal Bélanger J.’s decision. Since this Court has jurisdiction to hear the appeal on the merits under its enabling legislation ( Supreme Court Act , R.S.C. 1985, c.

S-26, s. 40(1)), we are of the opinion that it is not necessary to answer this question (see H. S. Brown, Supreme Court of Canada Practice 2014 (2013), at pp. 83-84). B.

Positions of the Parties [ 16 ] The appellants generally argue that disclosure of the intercepted private communications would be inconsistent with the provisions of the Criminal Code and the Competition Act and that, as a result, art. 402 C.C.P. cannot serve as a basis for their disclosure. [ 17 ] The appellants Couche-Tard et al. state, first, that electronic surveillance is the most serious violation of the right to privacy and that such a violation is exacerbated if the recording is subsequently disclosed. According to them, s. 193 Cr.

C. lays down a rule of strict confidentiality that is subject to a few exceptions, listed exhaustively in s. 193(2) and (3). In their view, the purpose of all these exceptions is to fight crime, which is the government objective that justified interception in the first place. Second, according to Couche-Tard et al., an

interpretation consistent with the modern approach to statutory

interpretation and with this Court’s decision in Michaud leads necessarily to the conclusion that

Part VI Cr. C. does not give private litigants a right of access to information from wiretaps. Finally, the words of s. 29 of the Competition Act confirm the confidential nature of wiretap information and do not permit its disclosure. [ 18 ] As for the appellant Imperial Oil, it submits that the motion of the respondents Jacques et al. constitutes an unlawful application for authorization to intercept private communications that would enable them to put together evidence they could not have obtained otherwise. The class action based on art. 1457 C.C.Q. and s. 36 of the Competition Act is civil in nature.

Its purpose is to obtain reparation for pecuniary damage, not to suppress crime as is the case with

Part VI Cr. C. Moreover, Imperial Oil argues that s. 193(2)(

a) applies only to parties that are lawfully in possession of intercepted private communications, which means that

Part VI Cr. C. cannot have the purpose or effect of giving a party to civil proceedings a right of access to private communications intercepted by the state. Imperial Oil also argues that it is an “innocent person”, because no criminal charges have been laid against it. It adds that the public interest in protecting the innocent may preclude access to evidence in the context of civil proceedings.

Finally, it submits that ss. 36(2) and 29 of the Competition Act cannot serve as a basis for compelling the Competition Bureau to disclose the wiretap information. [ 19 ] Generally speaking, the respondents counter that no rule of federal law prohibits the disclosure of intercepted communications that are considered relevant under provincial law. In this regard, the Attorney General of Quebec (“AGQ”) and the DPP, who are also respondents, essentially support the position taken by the respondents Jacques et al.

However, the intervener Attorney General of Ontario (“AGO”) stresses the importance of regulating and controlling the disclosure process and the scope of any disclosure. [ 20 ] The respondents Jacques et al. note that

Part VI Cr. C. protects privacy, but also provides that one’s privacy can be invaded if the invasion serves the public interest in ensuring that justice is done. In their view, although communications may be intercepted only in pursuit of the purpose of fighting crime, intercepted communications may be disclosed in a wider range of circumstances that are already specified in the Criminal Code . Moreover, they argue that s. 193(2)(

a) Cr. C. and s. 29 of the Competition Act are not the source of a right to disclosure of wiretap information. Rather, the right in the instant case is provided for in art. 402 C.C.P. As to the violation relied on by the appellants, the respondents Jacques et al. state that action has been taken to limit disclosure and to preclude premature or unnecessary disclosure. Finally, concerning Imperial Oil’s argument that it is an innocent third party, they submit that the Superior Court did not err in refusing to grant it that status.

As Bélanger J. stated, the third party concept must be interpreted in the context of the civil proceedings in which the disclosure of the documents is sought. [ 21 ] The DPP submits that, if interpreted applying the modern approach to statutory construction, s. 193(2)(

a) Cr. C. allows for the disclosure of private communications to a litigant for the purpose of giving evidence in civil proceedings. He adds that s. 29 of the Competition Act does not preclude the disclosure of such communications either. Moreover, he considers it wrong to liken the disclosure of a private communication to a second interception under

Part VI Cr. C. : interception and disclosure are distinct concepts. The DPP responds to the arguments of the appellant Imperial Oil by stating that, even if Imperial Oil could be considered an “innocent third party”, which is not the case, that would not make the exemption provided for in s. 193(2)(

a) inapplicable, but would merely be one factor to consider in deciding whether to order disclosure. The DPP further notes that s. 193(2)(

a) does not differentiate between an intercepted private communication that involves an “innocent” person and one that does not. Nor does the relevance of a private communication depend on the status of any of those involved in the communication. [ 22 ] The AGQ agrees with the DPP and the other respondents that a court hearing a civil case can authorize the disclosure of wiretap evidence.

Article 402 C.C.P. allows this at the pretrial stage as long as the evidence is relevant and furthers the truth-seeking process. However, the AGQ points out that such a disclosure remains subject to the discretion of the court, which will determine the extent and conditions of the disclosure by considering the various interests at stake. Regarding s. 193(2)( a ), the AGQ considers the

interpretation proposed by the appellants to be unduly narrow. Although the interception of private communications must serve the purpose of fighting crime, the same is not true of the subsequent disclosure of information resulting from that interception. Furthermore, the AGQ submits that the motion judge’s order struck an appropriate balance between the right to privacy and the parties’ right to a fair trial. It also ensured proportionality between the purposes of the statutory provision and the protection of the values of the Canadian Charter and the Charter of human rights and freedoms , CQLR, c. C-12.

Finally, the AGQ asserts that Bélanger J. was right to find that Imperial Oil is not an innocent third party and therefore does not have more rights than its co-defendants.

[23] The AGO proposes a conservative

interpretation of s. 193(2)(

a) Cr. C. that takes into account not only the purposeof

Part VI, but also the need for consistency with other important imperatives, including the search for truth. Section 193(2)(

a) providesfor the possibility of disclosing, at the exploratory stage of civil proceedings, communications intercepted by the state. However, thedisclosure must be limited to situations contemplated in applicable legislation and common law rules, interpreted in a manner consistentwith

Part VI. Where intercepted communications are in the possession of a party to the proceedings — such as the defendants in this casewho have also been charged in the criminal proceedings — the request for disclosure should be made directly to that party and shouldtake place within the framework established by the Ontario Court of Appeal in P. (D.) v. Wagg (2004), (ON CA), 71O.R. (3d) 229, in 2004. Where the state is in sole possession of the intercepted communications, on the other hand, the burden ofjustifying the application for disclosure should be much heavier. V. Analysis A.

Disclosure of Evidence at the Exploratory Stage [24] Nearly 20 years ago, Cory J. observed that “[t]he ultimate aim of any trial, criminal or civil, must be to seek and toascertain the truth” (R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197, at para. 13). Although the parallel objectives ofproportionality and efficiency have become increasingly important in the civil procedure context, seeking the truth remains the cardinalprinciple in civil proceedings (see P. Tessier, “La vérité et la justice” (1988), 19 R.G.D. 29, at p. 32; C.

Marseille, La règle de lapertinence en droit de la preuve civile québécois (2004), at p. 3). Informed by this objective, the rules of the law of evidence in civilmatters allow judges “to find out the truth, and to do justice according to law” (Frenette v. Metropolitan Life Insurance Co., (SCC), [1992] 1 S.C.R. 647, at p. 666, quoting Jones v. National Coal Board, [1957] 2 Q.B. 55 (C.A.), at p. 63). [25] Although the power of judges to intervene in the conduct of civil proceedings has become increasingly broad, judgesgenerally do not play an active

part in the search for truth (L. Ducharme and C.-M. Panaccio, L’administration de la preuve (4th ed.2010), at p. 7; Technologie Labtronix Inc. v. Technologie Micro Contrôle Inc., (QC CA), [1998] R.J.Q. 2312 (C.A.),at p. 2325). In an accusatory and adversarial system, the delicate task of bringing the truth to light falls first and foremost to the parties(see art. 2803 C.C.Q.; arts. 76 and 77 C.C.P.).

In this context in which the objective of seeking the truth remains the priority, the Quebeclegislature has established general rules of evidence to govern and facilitate this process, which remains under the control of the parties(see L.

Ducharme, “Rapports canadiens — première partie: la vérité et la législation sur la procédure civile en droit québécois”, inTravaux de l’Association Henri Capitant des amis de la culture juridique française, vol. 38, La vérité et le droit — Journées canadiennes(1987), 657). [26] The pre-trial “exploratory” stage, which is a key time for this search in court for the truth, facilitates the disclosureof evidence that might enable the parties to establish the truth of the facts they allege (J.-C. Royer and S. Lavallée, La preuve civile (4thed. 2008), at pp. 485 and 493; J.-L.

Baudouin, Secret professionnel et droit au secret dans le droit de la preuve: Étude de DroitQuébécois comparé au Droit Français et à la Common-Law (1965), at p. 173; see also Blaikie v. Commission des valeurs mobilières duQuébec, (QC CA), [1990] R.D.J. 473, at pp. 476-77). This stage enables each of the parties [translation] “to be betterinformed of the facts of the case and, more specifically, of the opposite party’s evidence” (Ducharme and Panaccio, at p. 365).

In theearly 2000s, the committee established to reform Quebec civil procedure gave a more precise description of the “communication ofexhibits” stage, stating that it [translation] “favours the transparency of proceedings and the accountability of parties and counsel. It alsofavours admissions, allows the issues to be defined quickly and facilitates transactions” (Civil Procedure Review Committee, D.

Ferland(Chair), Rapport du Comité de révision de la procédure civile: une nouvelle culture judiciaire (2001), at p. 138; see also Frenette, at pp.679-80; Glegg, at para. 22). [27] The Quebec legislature, aware of the importance of the exploratory stage in the civil process, had already establisheda framework for it by enacting a series of rules of general application that empower judges to order the disclosure of documents relatingto the issues between the parties.

It is these rules, and not, as the appellants argue, the various federal statutes on which they rely, that theparties can use to request the disclosure of documents. In this sense, they form the basis for the “right of access” to information. Therules, which are now codified in c. III of Title V of the Code of Civil Procedure, include art. 402, the first paragraph of which reads asfollows: 402.

If, after defence filed, it appears from the record that a document relating to the issues between the parties is in the possession of athird party, he may, upon summons authorized by the court, be ordered to give communication of it to the parties, unless he shows causewhy he should not do so. [28] The courts have given this

article a large and liberal

interpretation (Royer and Lavallée, at pp. 487-89; Autorité desmarchés financiers v. Panju, 2008 QCCA 832, [2008] R.J.Q. 1233; Fédération des infirmières et infirmiers du Québec v. Hôpital Laval,2006 QCCA 1345, [2006] R.J.Q. 2384; Westfalia Surge Canada Co. v. Ferme Hamelon (JFD) et Fils, 2005 QCCA 514 ). As aresult, although judges have great discretion in exercising their power to oversee the application of art. 402, they will generally favourdisclosure.

In this regard, Proulx J.A. noted in a leading Court of Appeal decision that, [translation] “at the stage of examination ondiscovery both before and after defence, the fullest possible disclosure of evidence should be favoured” (Westinghouse Canada Inc. v.Arkwright Boston Manufacturers Mutual Insurance Co., (QC CA), [1993] R.J.Q. 2735 (“Arkwright”), at p. 2741; seealso Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743, at para. 60; Frenette, at p. 680;Communauté urbaine de Montréal v. Chubb du Canada compagnie d’assurances, (QC CA), [1998] R.J.Q. 759(“Chubb”), at p. 764).

With respect to the exploratory stage, these words still seem relevant. [29] Although the right to disclosure granted to each of the parties to a civil proceeding must be understood broadly, it isnevertheless not unlimited. First, as we will see below, the scope of disclosure must sometimes be limited to avoid harming the interestsof third parties. Second, it should be mentioned that under art. 402, para. 1 C.C.P., the court may refuse to order a third party to disclosedocuments in his or her possession if that party “shows cause why he should not do so”.

In exercising its discretion, the court mayconsider, inter alia, the relevance of the documents to the issues between the parties, the extent to which the privacy of a party or of athird party to the proceedings is invaded and the importance of remaining sensitive to the duty to protect a person’s privacy that flowsfrom the Charter of human rights and freedoms (s. 5) and the Civil Code of Québec (arts. 35 and 36).

[30] Thus, disclosure can be objected to if the documents sought in the motion are not relevant to the issues between theparties (D. Ferland and B. Emery, Précis de procédure civile du Québec (4th ed. 2003), vol. 1, at p. 629). Although the courts seem to bemore cautious when assessing the relevance of confidential documents, the concept of relevance is generally interpreted broadly at theexploratory stage of the proceedings (Glegg, at para. 23; Kruger Inc. v. Kruger, (QC CA), [1987] R.D.J. 11 (C.A.), atp. 17; Industries GDS inc. v. Carbotech inc., 2005 QCCA 655 ; see also Royer and Lavallée, at pp. 490-91; S.

Grammond, “Lajustice secrète: information confidentielle et procès civil” (1996), 56 R. du B. 437, at pp. 457-58). To be relevant, the requesteddocument must relate to the issues between the parties, be useful and be likely to contribute to resolving the issues (Glegg, at para. 23;Arkwright, at p. 2741; Chubb, at p. 762; Westfalia Surge Canada Co.; Autorité des marchés financiers; Fédération des infirmières etinfirmiers du Québec). [31] This relevance requirement ensures that the parties do not conduct “fishing expeditions”.

It also ensures that theconduct of the proceedings is not delayed, complicated or even jeopardized by the introduction of evidence that does not assist inestablishing the rights being claimed (see Royer and Lavallée, at p. 487; Marseille, at pp. 1 and 21). In this sense, the relevance rule is aprocedural balancing rule that ensures the efficiency of the judicial process while facilitating the search for truth. [32] In the instant case, Bélanger J. found that the evidence requested by the respondents was relevant. There is nothingin the record to cast doubt on that finding.

It is clear that the recordings in question, whether transcribed or not, are indeed “document[s]”within the meaning of art. 402 C.C.P. (Ducharme and Panaccio, at pp. 428 and 455; see also Corporation de financement commercialTransamérica Canada v. Beaudoin, (QC CA), [1995] R.D.J. 633 (C.A.)).

Moreover, and particularly to the extent thatthe plaintiffs in the action in the instant case are trying to show that there was collusion among the defendants, there is every reason tobelieve that the recordings sought in the motion will be useful for the conduct of the proceedings. [33] Under art. 402 C.C.P., an objection to disclosure can also be based on an immunity from disclosure that is eitherprovided for in legislation or established by the courts (see Ducharme and Panaccio, at pp. 426-27; Union Canadienne, compagnied’assurance v. St-Pierre, 2012 QCCA 433, [2012] R.J.Q. 340, at para. 21; Goulet v.

Lussier, (QC CA), [1989] R.J.Q.2085 (C.A.); see also M. (A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157; R. v. Corbett, (SCC), [1988] 1S.C.R. 670; R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577). The appellants argue that such exceptions exist under theCompetition Act and the Criminal Code. For the reasons that follow, we are not persuaded by this argument. B. The Provisions and Principles Relied On by the Appellants Are Not Valid Grounds for Objecting to Disclosure of the Recordings [34] The appellants submit that disclosure is precluded by ss. 29 and 36 of the Competition Act, and by s. 193 Cr. C.

Theappellant Imperial Oil adds that its “innocent third party” status prohibits any disclosure of recordings about it. We will now considerthese various grounds for objecting to disclosure of the requested information.

(1) Competition Act [35] The appellants argue that s. 29 of the Competition Act confirms that the recordings of intercepted privatecommunications are confidential, and that this

section cannot be applied to require the Competition Bureau to disclose the results of itselectronic surveillance. They add that s. 36 creates no right to disclosure. Finally, according to the appellant Imperial Oil, although s.36(2) provides that evidence given in criminal proceedings that resulted in conviction can be evidence in an action under s. 36, BélangerJ.’s order should have drawn a distinction between the defendants in the civil action that had been convicted in the criminal proceedingsand those that had not been. [36] These arguments must fail.

As we explained above, disclosure of the intercepted private communications wasordered not under s. 36 of the Competition Act but under art. 402 C.C.P. As for s. 29, it provides for confidentiality of the CompetitionBureau’s record of investigation, and in particular of the types of information referred to in s. 29(1)(

a) to (e): 29.

(1) No person who performs or has performed duties or functions in the administration or enforcement of this Act shallcommunicate or allow to be communicated to any other person except to a Canadian law enforcement agency or for the purposes of theadministration or enforcement of this Act (

a) the identity of any person from whom information was obtained pursuant to this Act; (

b) any information obtained pursuant to

section 11, 15, 16 or 114; (

c) whether notice has been given or information supplied in respect of a particular proposed transaction under

section 114; (

d) any information obtained from a person requesting a certificate under

section 102; or (

e) any information provided voluntarily pursuant to this Act. [37] Private communications intercepted under

Part VI Cr. C. are not among the types of information referred to in s.29(1)(

a) to (e), so s. 29 does not prohibit their disclosure. In our opinion, the same is true of s. 193 Cr. C.

(2) Criminal Code — Section 193(2)(a) [38]

Section 193 Cr. C. is found in

Part VI, which is entitled “Invasion of Privacy”. This Court has already discussed PartVI in Lyons v. The Queen, (SCC), [1984] 2 S.C.R. 633, R. v. Duarte, (SCC), [1990] 1 S.C.R. 30,Michaud, R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 24, and, more recently, R. v. TELUS Communications Co., 2013 SCC 16,[2013] 2 S.C.R. 3 (particularly at paras. 22-31 and 73). [39]

Part VI, which is a result of legislative amendments made to the Criminal Code in 1974 to fill a legal vacuum inprivacy protection (Tse, at para. 24), “provides a scheme to protect private communications” (TELUS, at para. 3). Its purpose is “to offer

broad protection for private communications from unauthorized interference by the state” (ibid., at para. 35). Beyond this protection, thefunction of

Part VI is to strike a balance between the protection of privacy and the suppression of crime: it “is directed both to protecting,and to invading, the privacy of the individual” (Lyons, at p. 652; R. v. Welsh (1977), (ON CA), 15 O.R. (2d) 1 (C.A.),at pp. 7-8). Understood in this way,

Part VI is therefore intended to strike “a reasonable balance between the right of individuals to be leftalone and the right of the state to intrude on privacy in the furtherance of its responsibilities for law enforcement” (Duarte, at p. 45). [40] The objective here is not to upset the balance made possible by

Part VI by placing strict controls on the interceptionof private communications. Rather, it is to decide whether communications already intercepted by the state can be disclosed toindividuals who are parties in civil trials in order to serve other legitimate purposes, such as truth-finding, procedural fairness andensuring the efficiency of the judicial process. (

a) Section 193: An Offence, Not a Disclosure Mechanism [41] Section 184(1) Cr. C., which is found in

Part VI, provides that every one who wilfully intercepts a privatecommunication by means of any electro-magnetic, acoustic, mechanical or other device commits an offence. And s. 193(1) Cr. C. laysdown the principle that it is unlawful to disclose or use an intercepted private communication without the consent of the originator or theintended recipient of the communication: 193.

(1) Where a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or otherdevice 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. The common purpose of these provisions is to protect the privacy of Canadians. As this Court stated in Duarte, it is hard to imagine astate activity that is more dangerous to privacy than electronic surveillance (p. 43). [42] At first glance, s. 193(1) Cr. C. therefore seems to preclude the disclosure of documents resulting from electronicsurveillance. However, since the right to privacy is not absolute, the general prohibition provided for in s. 193(1) is tempered by a seriesof exemptions set out in s. 193(2) and (3). In particular, s. 193(2)(

a) deals with the giving of evidence in civil and criminal proceedings: (2) [Exemptions] Subsection (1) does not apply to a person who discloses a private communication or any part thereof or thesubstance, 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 theperson may be required to give evidence on oath; [43] By excluding certain well-defined situations from the scope of the prohibition provided for in s. 193(1), theseexemptions give a person the right to disclose recordings that otherwise could not be disclosed. But even though s. 193(2) and s. 193(3)allow for such a disclosure, they do not create an actual disclosure mechanism, let alone a right of access.

The procedure for seekingaccess to the recordings must therefore derive from another source. Since this case involves civil proceedings brought under s. 36 of theCompetition Act and art. 1457 C.C.Q., that procedure is the one provided for in art. 402 C.C.P. [44] For this reason, Michaud, on which the appellants base their argument, can be distinguished from the case at bar. Inthat case, the Sûreté du Québec had placed Mr.

Michaud under electronic surveillance because it suspected that he had disclosed to themedia certain confidential documents concerning the constitutional negotiations leading up to the Charlottetown Accord. In the end,however, no criminal charges had been laid against him. Hoping to pursue an action in damages for an unlawful search, Mr. Michaudapplied under s. 187(1)(a)(ii) (now s. 187(1.3)) Cr. C. for disclosure of the sealed packet containing the documents that had been filed insupport of the application for judicial authorization. He also applied for disclosure of the recordings themselves.

Section 187(1)(a)(ii)gave accused persons automatic access to the sealed packet in criminal proceedings, and the Court had to decide whether a target ofelectronic surveillance against whom criminal charges had not been laid was entitled to that same automatic access. [45] A majority of the Court held that a non-accused target could not claim automatic access to the sealed packet, butwould have to make a preliminary showing that indicated that the initial authorization had been obtained in an unlawful manner.

TheCourt added that, “outside a criminal proceeding, the Code does not provide a former surveillance target with any avenue for disclosureof the recording materials” (para. 62). The appellants rely heavily on this passage. However, unlike in the instant case, Mr. Michaud hadnot yet instituted a civil action when he filed his motion under s. 187(1)(a)(ii) Cr. C. Because his request was therefore based solely onthe Criminal Code, which grants a right of access to wiretap information only in a criminal proceeding, there was no mechanismavailable to a court to order the requested disclosure.

Far from absolutely ruling out the possibility of disclosure, however, the Courtcontinued its analysis, stating that the recordings could be disclosed in an action for damages based on the Charter if they were relevantto determining the extent of the damage suffered by the target (Michaud, at paras. 63-65). In light of the context of that decision, it is oflimited relevance to the case at bar. [46] As we explained above, art. 402 C.C.P. allows prima facie for access to wiretap information.

Given the generalprohibition laid down in s. 193(1), however, the question becomes whether one of the exemptions provided for in s. 193(2) applies in theinstant case. More specifically, the respondents submit that s. 193(2)(

a) allows for the disclosure of recordings of intercepted privatecommunications without the consent of the originator of the communications or the person intended by the originator to receive them.They are right. The exemption set out in s. 193(2)(

a) empowers a person who is in possession of such recordings to disclose them.However, the disclosure is made in the manner and to the extent provided for in the court order authorizing the disclosure.

(

b) The Exemption Provided for in Section 193(2)(

a) Applies in This Case [47] The modern approach to statutory

interpretation requires that the words of

an Act be interpreted “in their entirecontext and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, reproduced in R. Sullivan, Sullivan on the Construction ofStatutes (5th ed. 2008), at p. 1). As we will see below, the ordinary sense of the words of s. 193(2)(a), the context of that provision andits object lead to the conclusion that the exemption applies in this case. (

i) Sense of the Words “For the Purpose of Giving Evidence in Any Civil . . . Proceedings” [48] Section 193(2)(

a) provides that a disclosure is not an offence under s. 193(1) if it is made “in the course of or for thepurpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person [who makes thedisclosure] may be required to give evidence on oath”. “Civil proceedings”, whether in a traditional form or not, always include anexploratory stage. The word “purpose” means “something to be attained; a thing intended” (The Canadian Oxford Dictionary (2nd ed.2004), at p. 1256), or “[a]n objective, goal, or end” (Black’s Law Dictionary (9th ed. 2009), at p. 1356).

The word “fin” used in theFrench version is to the same effect. In this context, if Parliament had intended that the exemption would apply only at the time evidenceis given, as the appellants argue, then it would not have included the words “or for the purpose”. Since it did include those words, wemust assume that they are not redundant, must avoid depriving them of meaningful effect, or “effectivity”, and must recognize that theyreflect an intention to give the exemption a generous scope that encompasses the exploratory stage of civil proceedings (on the rule ofeffectivity, see P.-A.

Côté, in collaboration with S. Beaulac and M. Devinat, The

Interpretation of Legislation in Canada (4th ed. 2011),at p. 295; Subilomar Properties (Dundas) Ltd. v. Cloverdale Shopping Centre Ltd., (SCC), [1973] S.C.R. 596, at p. 603;Air Canada v. Ontario (Liquor Control Board), (SCC), [1997] 2 S.C.R. 581, at para. 53). [49] In the alternative, the appellants argue that the words “for the purpose of giving evidence” refer only to incidentaldisclosure, that is, disclosure that takes place during the proceedings in order, for example, to have a witness identify recorded voices.This

interpretation overlooks the fact that the incidental disclosure referred to by the appellants is, as we will see below, already coveredby s. 193(3). Construing s. 193(2)(

a) in this manner would therefore deprive s. 193(3) of meaningful effect, contrary to principles ofinterpretation that have long been recognized by this Court (see Côté, at p. 295). [50] This analysis of the language of s. 193(2)(

a) Cr. C. satisfies us that wiretap information may be disclosed at theexploratory stage of any civil proceeding. As we have seen, the purpose of this stage is essentially to prepare for the hearing of the case.The documents requested at this stage may very well be requested for the purpose of testifying at the hearing. In the instant case, forexample, it is easy to imagine counsel for the respondents wanting to examine a representative of the state, a third party in possession ofrecordings of intercepted communications, in order to meet the conditions for admission of such physical evidence. [51] We accordingly conclude that s. 193(2)(

a) Cr. C. applies in this case. Nothing in its words justifies limiting itsapplication to the time when evidence is being given. An analysis of the provision’s object and context admits of no other conclusion. (ii) Object and Context [52] In keeping with the general purpose of

Part VI, the specific objective of s. 193 is to prevent the unauthorizeddisclosure of private communications. Despite its importance, this objective is not absolute. It must sometimes yield to other purposes towhich Parliament has chosen to give priority (see Lyons, at p. 652). The exemption provided for in s. 193(2)(

a) is the best example ofthis. According to the AGQ, the object of s. 193(2)(

a) is [translation] “to ensure that courts of competent jurisdiction will have access toall information relevant to the proceedings before them, in a manner consistent with established rules of procedure” (R.F. AGQ, at para.108). In our opinion, this view is consistent with the context of this provision. a. Other Exemptions Set Out in Section 193(2) [53] Where context is concerned, an analysis of all the exemptions set out in s. 193(2) is relevant insofar as it helpsdetermine the overall objective of the provision in a coherent manner. The appellants argue that all these exemptions have to do withfighting crime and that s. 193(2)(

a) should therefore be interpreted in light of that objective. With respect, we disagree. [54] It is true that most of the exemptions set out in s. 193(2) relate to the fight against crime. This is the case for para. (2)(b) (disclosure in the course of or for the purpose of any criminal investigation), para. (2)(c) (disclosure in giving notice or furnishingfurther particulars under s. 189 or 190 Cr.

C. in order to have intercepted communications admitted into evidence in criminalproceedings), and para. (2)(e) (disclosure to a peace officer or prosecutor in Canada or to a person or authority with responsibility in aforeign state for the investigation or prosecution of offences). Paragraph (2)(f) (disclosure to the Canadian Security Intelligence Serviceso it can perform its duties and functions under s. 12 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23) may also,generally speaking, be directed at fighting crime.

However, not all the exemptions provided for in s. 193(2) have this as their purpose.For example, s. 193(2)(d) “exempts from criminal liability disclosures in the course of the operation of a communications or computersystem, provided that the disclosure is necessarily incidental to the purposes which provide such operators with an exemption from theinterception offence [provided for in s. 184(2)(c), (

d) or (e)]” (TELUS, at para. 147, per Cromwell J., dissenting on another point). On itsface, this paragraph does not have crime fighting as its objective. [55] Moreover, we consider it particularly important to point out that, unlike with paras. (b), (c), (

e) and (f), a plainreading of which suffices to identify their objective, a more thorough analysis is required to identify the purpose of para. (a). Althoughthe objective of fighting crime is apparent where recordings are requested “in the course of or for the purpose of giving evidence in any. . . criminal proceedings”, it seems difficult to arrive at the same

interpretation if they are requested “in any civil . . . proceedings or inany other proceedings”. The fight against crime (in the strict sense of the term) primarily involves criminal investigations andproceedings. But if that had been the only function of para. (a), Parliament would have limited the codification to that possibility (as itdid in the case of paras. (

b) and (e)). Furthermore, Parliament adopted a much broader drafting style in it than in the other paragraphs.We therefore find it difficult to conclude that para. (

a) has facilitating the fight against crime as its sole purpose.

[ 56 ] In TELUS , this Court discussed the

interpretation of the exemptions set out in s. 193. Comparing them to the exemptions relating to interception provided for in s. 184 Cr. C. , Cromwell J. (dissenting on another point) wrote the following: The exemptions in s. 193 are far more permissive than those in s. 184, especially with respect to criminal investigations. Under s. 184, police can only intercept communications if they are authorized to do so (s. 184(2)( b )) or in certain exceptional circumstances (s. 184.4).

By contrast, s. 193 includes broad exemptions that permit disclosure of intercepted communications in a range of circumstances including in the course of civil or criminal proceedings (s. 193(2)( a )), and “in the course of or for the purpose of any criminal investigation” (s. 193(2)( b )). [Emphasis added; para. 146.] [ 57 ] Thus, the language of s. 193(2)(

a) requires that its objectives be defined broadly. It is clear that this provision does not apply solely to proceedings related to the fight against crime. b. Section 193(3) [ 58 ] The appellants Couche-Tard et al. also argue that the

interpretation given to s. 193(2)(

a) Cr. C. by the courts below cannot be reconciled with s. 193(3), which reads as follows: (3) 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 where that which is disclosed by him was, prior to the disclosure, lawfully disclosed in the course of or for the purpose of giving evidence in proceedings referred to in paragraph (2)( a ). [ 59 ] In the appellants’ opinion, this subsection cannot be reconciled with the rest of the

section unless the disclosure to which it refers occurs at the production of evidence stage. Since the evidence becomes public at that time as a result of the open court principle, there would, they submit, no longer be any reason to prohibit anyone from disclosing the content of evidence that is already known. On the contrary, they argue, it would [ translation ] “make no sense for Parliament to allow private litigants to publicly disclose wiretap information that has been disclosed to them solely in the context of the civil discovery process” (A.F. Couche-Tard et al., at para. 66). [ 60 ] This

interpretation is wrong. First, it overlooks the possibility that Parliament in fact wished to avoid interfering with the open court principle by allowing, for that purpose, the disclosure of “the substance, meaning or purport” of a private communication that was, “prior to the disclosure, lawfully disclosed in the course of . . . giving evidence”. When interpreted in this way, the exemption would, for example, allow a journalist to disclose the substance of communications heard at a trial. Second, the appellants’

interpretation is unduly restrictive. It leaves out a series of specific possibilities. For example, an expert who is authorized during “civil proceedings” to listen to recordings of private communications disclosed “for the purpose of giving evidence” might have to “disclose” the content of the communications when giving evidence in court. Moreover, in the case at bar, counsel for the respondents will probably want to use the content of the recordings to cross-examine the appellants when they testify in court.

In testifying, the appellants will be protected by the exemption set out in s. 193(3), since they will be disclosing that which “was, prior to the disclosure, lawfully disclosed . . . for the purpose of giving evidence”, as provided for in s. 193(2)( a ). c. History [ 61 ] The appellants also argue, on the basis of the previous versions of s. 193(2)( a ), that this provision has never had the function of allowing litigants to obtain disclosure of wiretap information for the purpose of a civil proceeding. We see no merit in this argument either. [ 62 ]

Section 178.2(2)( a ) — the predecessor of s. 193(2)( a ) — which was proclaimed in force in 1974, read as follows: 178.2 . . . (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 he may be required to give evidence on oath where the private communication is admissible as evidence under

section 178.16 or would be admissible under that

section if it applied in respect of the proceedings; [ 63 ]

Section 178.16 — to which s. 178.2(2)(

a) referred — was enacted before the Canadian Charter came into force. This

section established a rule that a communication intercepted by the state was, in principle, inadmissible as evidence against its originator or against the person intended to receive it unless it had been obtained lawfully or unless the persons in question consented to its being admitted: 178.16

(1) A private communication that has been intercepted and evidence obtained directly or indirectly as a result of information acquired by interception of a private communication are both inadmissible as evidence against the originator thereof or the person intended by the originator thereof to receive it unless (

a) the interception was lawfully made; or (

b) the originator of the private communication or the person intended by the originator thereof to receive it has expressly consented to the admission thereof. [ 64 ] The appellants, considering s. 178.2(2)(

a) jointly with s. 178.16, submit that these provisions always governed the

production of evidence, not its disclosure. According to this argument, since s. 178.16 required the state to prove that an interception waslawful at the admissibility stage, it should be concluded that Parliament’s intention was never that the exemption be used by litigants inprivate actions. It would have made no sense, in the appellants’ view, to impose a burden on the state to show that an interception ofcommunications was lawful each time a litigant sought the disclosure of information resulting from such interceptions in a private action. [65] In our view, this

interpretation is unduly narrow. First, concerning the possible burden imposed on the state, theappellants are overlooking the fact that, by allowing for the admission in evidence of an intercepted communication if one of the personsinvolved in the communication “expressly consented” to its being admitted (s. 178.16(1)(b)), Parliament had provided for a solution thatrelieved the state of any such burden. Second, although it is true that s. 178.16 had the function of determining whether evidence wasadmissible and could therefore be produced, it is wrong to argue that s. 178.2(2)(

a) played the same role. The purpose of s. 178.2(2)(a)was [translation] “to grant immunity for disclosures made in the course of or for the purpose of any civil or criminal proceedings or anyother proceedings” (D. A. Bellemare, L’écoute électronique au Canada (1981), at p. 153). Thus, the only difference between the formerscheme and the current scheme is that disclosure could not be authorized without first either determining that the recording was lawful orobtaining the consent of one of the persons involved in the communicati

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