MediaQMI inc. Appellant v. Magdi Kamel and Centre intégré universitaire de santé et de services sociaux, 2021 SCC 23

SUPREME COURT OF CANADA Citation: MediaQMI inc. v. Kamel, 2021 SCC 23, [2021] 1 S.C.R. 899 Appeal Heard: November 12, 2020 Judgment Rendered: May 28, 2021 Docket: 38755 Between: MediaQMI inc.

Appellant and Magdi Kamel and Centre intégré universitaire de santé et de services sociaux de l’Ouest-de-l’Île-de-Montréal Respondents - and - Fédération professionnelle des journalistes du Québec, Canadian Broadcasting Corporation, La Presse Inc. and Ad IDEM/Canadian Media Lawyer Association Interveners Official English Translation Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: ( paras. 1 to 73) Joint Dissenting Reasons: (paras. 74 to 143) Côté J. (Abella, Moldaver, Karakatsanis and Brown JJ. concurring) Wagner C.J. and Kasirer J. (Rowe and Martin JJ. concurring)

MediaQMI inc. Appellant v. Magdi Kamel and Centre intégré universitaire de santé et de services sociaux de l’Ouest-de-l’Île-de-Montréal Respondents and Fédération professionnelle des journalistes du Québec, Canadian Broadcasting Corporation, La Presse Inc. and Ad IDEM/Canadian Media Lawyer Association Interveners Indexed as: MediaQMI inc. v. Kamel 2021 SCC 23 File No.: 38755. 2020: November 12; 2021: May 28.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal of quebec Civil procedure — Openness of court proceedings — Right to access court record — Discontinuance — Retrieval of exhibits— Public body bringing action against former manager alleging misappropriation of public funds — Newspaper publishing companyfiling motion for access to sealed exhibits in court record — Court authorizing retrieval of exhibits because of discontinuance filed bypublic body before motion heard — Whether Superior Court judge was obliged to decide application for access to court record beforeauthorizing retrieval of exhibits — Code of Civil Procedure, CQLR, c.

C-25.01, arts. 11, 108. On October 6, 2016, the Centre intégré universitaire de santé et de services sociaux de l’Ouest-de-l’Île-de-Montréal(“CIUSSS”) brought a legal action against a former manager, alleging misappropriation of public funds. The action was accompanied byan application for a Norwich order to obtain the identity of the holder of the four bank accounts to which the money had allegedly beendiverted. On October 7, 2016, the Superior Court made the Norwich order and ordered that the entire record be sealed, including the fourexhibits filed by the CIUSSS in support of its allegations.

On March 29, 2017, MediaQMI, a newspaper publishing company, filed amotion to unseal based on art. 11 of the Code of Civil Procedure (“C.C.P.”) and s. 23 of the Charter of human rights and freedoms(“Quebec Charter”) in order to have access to the court record, including the exhibits that might be in it. The hearing of the motion,scheduled for April 5, 2017, was postponed to April 25, 2017. In the meantime, on April 19, 2017, the CIUSSS discontinued its legalaction. It tried to retrieve the exhibits it had filed, but the staff of the court office could not find them.

When the motion was heard onApril 25, the CIUSSS made an oral request to retrieve the exhibits filed in the court record. MediaQMI opposed that request. The Superior Court ordered that the court record be unsealed based on the test set out in Dagenais v. Canadian BroadcastingCorp., (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, finding that the evidence wasinsufficient to depart from the principle of open court proceedings.

However, it granted the request to retrieve the exhibits made by theCIUSSS, in accordance with art. 108 C.C.P., because of the discontinuance that had terminated the proceeding. The day after thejudgment was rendered, the CIUSSS retrieved its exhibits. The Court of Appeal dismissed MediaQMI’s appeal from the conclusionrelating to the retrieval of exhibits. Held (Wagner C.J. and Rowe, Martin and Kasirer JJ. dissenting): The appeal should be dismissed.

Per Abella, Moldaver, Karakatsanis, Côté and Brown JJ.: MediaQMI cannot obtain a copy of the exhibits that were in theSuperior Court’s record at the time its motion was filed. The right to have access to court records set out in art. 11 C.C.P. does not extendbeyond what is in these records at the time they are consulted. Once the parties retrieve their exhibits at the end of a proceeding inaccordance with art. 108 C.C.P., members of the public will still be able to consult the record but will no longer have access to theexhibits that have been removed from it.

Article 11 C.C.P., which sets out the principle of open proceedings, does not confer a specific right to access exhibits thatwere once part of court records. That provision gives access to a court record whose content is governed in part by art. 108 C.C.P. Thus,the retrieval of exhibits from a record in the circumstances described in art. 108 C.C.P., when an application to consult the record ispending, does not infringe a rule of public order; it simply constitutes the exercise of a right provided for in the Code of Civil Procedure.

The position that the scope of the principle of open proceedings should be interpreted in light of the charters must be rejected. Whatever protection that principle may have under the charters, the legislature remains free to fix the scope of the principle in the rules it enacts, and it is not the role of the courts to do so in its place . In the civil law context, creating law remains the legislature’s prerogative. Accordingly, in the absence of a constitutional challenge, the rules clearly stated in the Code of Civil Procedure are what apply . Moreover, except where there is ambiguity that persists even though the contextual approach to

interpretation has been applied, courts do not have to interpret statutes so as to make them consistent with the principles and values of the Canadian Charter of Rights and Freedoms . This approach also accords with the interpretative provisions of the Quebec Charter . The new Code of Civil Procedure that came into force in 2016 sets out the general scheme relating to the public nature of civil justice in arts. 11 to 16 and establishes two distinct rights in art. 11: the right to attend court hearings wherever they are held and the right to have access to court records and entries in the registers of the courts.

Article 108 C.C.P. makes explicit reference to that general scheme; this is clear both from the words used by the legislature and from the holistic reading of the Code of Civil Procedure called for by its preliminary provision and by s. 41.1 of Quebec’s

Interpretation Act . It therefore seems to be beyond question that art. 108 C.C.P. concerns the content of the records contemplated in arts. 11 to 16 C.C.P. , that is, the records that are subject to a court’s supervisory power and control. That provision thus governs the keeping, retrieval and preservation of the exhibits filed in the record to which art. 11 C.C.P. gives access. The scope of art. 108 para. 2 C.C.P. cannot be limited on the basis of passages from parliamentary debates suggesting that the legislature’s objective was to reduce the costs associated with the judicial system.

Arguments from parliamentary history cannot result in the refusal to apply a clear rule, as doing so would compromise the reader’s right to rely on the letter of the law interpreted in its context. Courts do not have to interpret or implement the objective underlying a legislative scheme or provision, but must rather interpret and apply the text through which the legislature seeks to achieve that objective.

In this case, the text of art. 108 para. 2 C.C.P. authorizes the parties to retrieve their exhibits by consent in the course of a proceeding, and requires them to retrieve their exhibits once the proceeding has ended. It reiterates, with some modifications, the two rules set out in arts. 83 and 331.9 of the former Code of Civil Procedure , which were incorporated when the general scheme for the communication and filing of exhibits was reformed.

That 1994 reform was designed to encourage parties to exchange information with regard to their respective evidence and to communicate their exhibits to one another directly, without first filing them in the court record. It contemplated that exhibits would be filed and kept on the basis of usefulness and necessity. As the successor of that scheme, art. 108 C.C.P. revises and unifies the rules on the keeping, retrieval and preservation of the exhibits filed in court records.

Insofar as it governs the content of those records, it has a direct impact on the information to which the public can have access under art. 11 C.C.P .

Article 11 C.C.P. gives the public the right to have access to court records, subject to exceptions for confidential information. This right applies during and after a proceeding. Even after the proceeding has ended, the exhibits can be consulted as long as they remain in the record, but once the parties retrieve them or the court clerk destroys them, they cease to be part of the record to which the public can have access. This conclusion is in keeping with the intention expressed by the legislature through the words of arts. 11 and 108 C.C.P. , with the legislative objectives underlying those provisions, with the general scheme of the Code of Civil Procedure and with civil law principles of

interpretation. It also avoids giving the principle that civil justice is public set out in art. 11 C.C.P. a scope that might distort that principle, just as it avoids undermining other important objectives of the Code of Civil Procedure , such as the prevention and resolution of disputes. The objective of facilitating the resolution of disputes would surely be undermined if parties who wished to come to an agreement after taking a matter to court could not bring the documents they had filed with the court back into the private sphere.

Because arts. 11 and 108 C.C.P. do not give rise to any judicial discretion, the test from Dagenais and Mentuck should not be applied in this case. That test establishes that the discretion to make an order limiting the openness of proceedings must be exercised within the boundaries set by the Canadian Charter , having regard to rights and interests that pull in opposite directions.

But where the law fixes the scope of the principle of open proceedings without conferring any discretion on judges, there is no reason to seek a correct balance between competing rights and interests that is within the boundaries set by the Canadian Charter . In this case, MediaQMI’s right under art. 11 C.C.P. to have access to court records was never compromised. This was because the sealing order that had kept the record confidential until then came to an end when the Superior Court’s judgment was rendered.

MediaQMI could have consulted the exhibits in issue if it had applied for access to the record during the time when the exhibits were available, since no conservatory measure had been sought by the parties. It did not do so. Only the terms of access to the court record and the content of that record changed between the filing of the motion to unseal and the retrieval of the exhibits . However, that situation was beyond the reach of art. 11 because it fell within art. 108 C.C.P .

T he fact that MediaQMI filed its motion under art. 11 C.C.P. prior to the CIUSSS’s discontinuance is not determinative and did not give it any acquired right to argue that motion. Nor did it give MediaQMI any right to require that the content of the court record remain unchanged until the motion was decided. The legal consequence that art. 213 C.C.P. attaches to a discontinuance is the termination of the proceeding. Yet the termination of the proceeding entitles the parties to retrieve their exhibits in accordance with art. 108 C.C.P .

In this case, if MediaQMI wanted to prevent the exercise of that power, it had to contest the discontinuance extinguishing the proceeding. It did not do so. There was therefore nothing that prohibited the CIUSSS from retrieving its exhibits. Per Wagner C.J. and Rowe, Martin and Kasirer JJ. (dissenting): The appeal should be allowed. T he case should be remanded to the Superior Court so that it can decide the application for access to the exhibits on the basis of the analytical framework established in Dagenais and Mentuck , which was affirmed for civil proceedings in Sierra Club of Canada v.

Canada (Minister of Finance) , 2002 SCC 41 , [2002] 2 S.C.R. 52, and make the orders it considers necessary . The parties’ control over the course of their case is a guiding principle set out in art. 19 C.C.P . This principle extends to the parties’ right to agree at any stage of the proceeding to settle their dispute or otherwise terminate the proceeding (para. 3).

It does not allow them to override a judge’s discretion to ensure compliance with the rule of public order arising from the principle of open proceedings, nor does it allow them to exercise their powers at the expense of the existing and legitimate interests of third persons in seeking the application of that rule. The fact is that when parties decide to have recourse to the civil justice system, which is a public

service, they do so knowing that members of the public may exercise their fundamental right to information about court proceedings.The private resolution of a dispute alone cannot ipso facto supplant the principle of open proceedings when invoked in accordance withprocedural rules while a proceeding is still under way. This is all the more true in a case in which a judge issued an order limiting theprinciple of open court proceedings as soon as the legal action was filed, as in this case.

The fundamental principle of open court proceedings, a hallmark of a free and democratic society, is affirmed in art. 11C.C.P., which provides that anyone may attend court hearings and have access to court records. The public, and in particular the newsmedia, have the interest required to seek the application of this principle.

The legislature provides for two specific exceptions to thisfundamental principle: first, where the law provides for in camera proceedings (art. 15 C.C.P.) or restricts access to court records (art. 16C.C.P.), which is notably the case in family matters; second, by giving the court a discretion to make an exception to the fundamentalprinciple of open proceedings if, in its opinion, public order or the protection of substantial and legitimate interests so requires (art. 12C.C.P.).

A court seized of an application to limit the openness of court proceedings must exercise its discretion in accordance with theanalytical framework developed in Dagenais, Mentuck and Sierra Club, even if the application is unopposed. The rules on discontinuance flow from the principle that the parties control the course of their case (art. 19 para. 3 C.C.P.).To be set up against the other parties, the unilateral discontinuance need only be notified to those parties in accordance with art. 213C.C.P.

However, the principle that the parties control the course of their case is subject to a qualification, developed and consistentlyapplied by the courts: a discontinuance may not prejudice the rights of the other parties or of third persons, including the right to have anapplication filed prior to the discontinuance decided. Because discontinuance constitutes a voluntary renunciation of a right or claim, itaffects only the rights of the renouncing party, that is, the party that discontinues proceedings or waives a right or claim.

Adiscontinuance may therefore be valid yet ineffective against the rights of third persons. It follows that the purpose or effect of a party’sdiscontinuance cannot be to avoid a suit already brought against it. If the discontinuance of a proceeding cannot be relied on at the expense of third persons’ existing legitimate interests orcontrary to the rules of public order, then parties cannot avail themselves of art. 108 para. 2 C.C.P. in order to remove exhibits from therecord after an application has been made under art. 11 C.C.P.

The control that the parties have over the course of their case must beexercised in compliance with the principles of civil procedure (art. 19 C.C.P.). The parties cannot displace a rule of public order, even bymutual consent. Applying the principle that the parties control the course of their case as if it were an end in itself would be contrary toQuebec jurisprudence and to the general scheme of the Code of Civil Procedure.

It would also conflict with the well-establishedprinciple that the Code’s provisions must be interpreted in harmony with the Quebec Charter and the general principles of law.Therefore, the principle that the parties control the course of the case could not adversely affect MediaQMI’s existing and legitimateinterests in seeking the application of the rule of public order requiring open court proceedings. From the moment MediaQMI applied to unseal the record and access the exhibits, a new proceeding began, and it wentbeyond the strictly private interests of the parties to the principal litigation.

The discontinuance filed following the application broughtunder art. 11 C.C.P. could not defeat that new proceeding, which was separate from the principal litigation and related to the properfunctioning of the judicial institution, whose legitimacy depends on its openness and in part on media scrutiny. MediaQMI was thusseeking to play its role as a surrogate for the public and to inform readers of what was taking place in the courts, a crucial role in acontext where it was alleged that fraud had been committed within a public body responsible for ensuring the proper functioning ofregional health institutions.

The court had to exercise the discretion conferred on it by art. 12 C.C.P. However, the discontinuance wouldhave produced its full effects if MediaQMI had filed its application after the CIUSSS’s discontinuance and had sought access to theexhibits when they were no longer in the record. Its appeal would have failed on that basis unless it challenged the constitutionality ofart. 108 C.C.P. Cases Cited By Côté J. Referred to: Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835; R. v.

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Plamondon, Jacinthe. “Les principes directeurs et le nouveau Code de procédure civile ( art. 17 à 24 C.p.c. )”, dans Sylvette Guillemard, dir., Le Code de procédure civile : quelles nouveautés? Montréal: Yvon Blais, 2016, 27. Québec. Assemblée nationale. “Adoption du principe — Projet de loi 24 — Loi modifiant le Code de procédure civile”, Journal des débats , vol. 33, n o 30, 3 e sess., 34 e lég., 1 er juin 1994, p. 1573-1579. Québec. Assemblée nationale.

Commission permanente des institutions, “Étude détaillée du projet de loi n o 28 — Loi instituant le nouveau Code de procédure civile”, Journal des débats , vol. 43, n o 79, 1 re sess., 40 e lég., 29 octobre 2013, p. 73-77. Québec. Ministère de la Justice. Comité de révision de la procédure civile. U ne nouvelle culture judiciaire . Québec: 2001. Québec. Ministère de la Justice. Commentaires de la ministre de la Justice: Code de procédure civile,

chapitre C-25.01 . Montréal: SOQUIJ, 2015. Raynaud, Pierre. “La renonciation à un droit. Sa nature et son domaine en Droit civil” (1936), 35 R.T.D. civ. 763.

Reid, Hubert, avec la collaboration de Simon Reid. Dictionnaire de droit québécois et canadien , 5 e éd. Montréal: Wilson & Lafleur, 2015, “ désistement ”, “ pièce ”. Thériault, Michelle. “Le défi du passage vers la nouvelle culture juridique de la justice participative” (2015), 74 R. du B. 1. Vincent, Jean, et Serge Guinchard. Procédure civile , 27 e éd. Paris: Dalloz, 2003.

APPEAL from a judgment of the Quebec Court of Appeal (Marcotte and Schrager JJ.A. and Samson J. ( ad hoc )), 2019 QCCA 814 , [2019] AZ-51434213, [2019] J.Q. n o 3707 (QL), 2019 CarswellQue 3871 (WL Can.), affirming a decision of Gagnon J., 2017 QCCS 4691 , [2017] AZ-51434213, [2017] J.Q. n o 14219 (QL), 2017 CarswellQue 9231 (WL Can.). Appeal dismissed, Wagner C.J. and Rowe, Martin and Kasirer JJ. dissenting. Mathieu Quenneville and Marc-André Nadon , for the appellant. Jonathan Pierre-Étienne and Antoun Al-Saoub , for the respondent Magdi Kamel.

Dominique Vallières , for the respondent Centre intégré universitaire de santé et de services sociaux de l’Ouest-de- l’Île-de-Montréal . Mark Bantey , for the intervener Fédération professionnelle des journalistes du Québec. Christian Leblanc , for the intervener the Canadian Broadcasting Corporation, La Presse Inc. and Ad IDEM/Canadian Media Lawyer Association. English version of the judgment of Abella, Moldaver, Karakatsanis, Côté and Brown JJ. delivered by Côté J. — I. Overview [ 1 ] The importance of the principle of open court proceedings is no longer a matter of controversy today.

It will readily be agreed that, as one early author elegantly stated, justice is [ translation ] “a work of light and not of darkness”: J. Frain du Tremblay, Essais sur l’idée du parfait magistrat où l’on fait voir une

partie des obligations des Juges (1701), at pp. 139-40. This is not in question here. But however important a principle may be, it is not without limits. This appeal calls upon us to clarify the limits of the openness of court proceedings. What must be determined, in essence, is how far the aspiration for transparency in the judicial process should lead and at what point secrecy can prevail. [ 2 ] In Quebec, the Code of Civil Procedure , CQLR, c.

C-25.01 (“ C.C.P. ”), gives members of the public the right to have access to court records: art. 11 C.C.P . [1] No prior authorization is required: anyone can examine the content of such records. The Code also contains a provision dealing with the retrieval of exhibits filed in a court record: art. 108 C.C.P . In the course of a proceeding, the parties are authorized to retrieve their exhibits if all of them consent; once the proceeding has ended, they are obliged to do so, otherwise the exhibits may be destroyed by the court clerk after one year.

The question at the centre of this appeal is whether art. 11 C.C.P. allows members of the public to consult exhibits that have been retrieved by the parties in accordance with art. 108 C.C.P . In my view, the right to have access to court records set out in art. 11 C.C.P. does not extend beyond what is in these records at the time they are consulted. This means that once the parties retrieve their exhibits at the end of a proceeding, members of the public will still be able to consult the record but will no longer have access to the exhibits that have been removed from it. II.

Background [ 3 ] On October 6, 2016, the respondent Centre intégré universitaire de santé et de services sociaux de l’Ouest-de-l’Île-de-Montréal (“CIUSSS”) instituted court proceedings against one of its former managers, the respondent Magdi Kamel. The originating application alleged misappropriation of funds in the amount of $410,266 and sought the repayment of that sum as well as $100,000 in damages. It was accompanied by an application for a Norwich order to obtain the identity of the holder of the four bank accounts to which that sum had allegedly been diverted between April 1, 2009 and March 31, 2015.

The CIUSSS filed four exhibits in support of its applications, including an expert forensic accounting report produced by PwC. On October 7, 2016, the Superior Court made the Norwich order and ordered that the entire record be sealed. [ 4 ] Seizures before judgment were carried out at Mr. Kamel’s residences on October 17 and November 22, 2016. The Journal de Montréal , a newspaper published by the appellant, MediaQMI, devoted two articles to the seizures on October 31 and December 13, 2016.

Wishing to find out the details of the court proceedings, MediaQMI filed its [ translation ] “Motion to unseal” on March 29, 2017 in order to have access to the court record and the exhibits that might be in it. In that motion based on art. 11 C.C.P. and s. 23 of the Charter of human rights and freedoms , CQLR, c.

C-12 (“ Quebec Charter ”), MediaQMI sought only a single conclusion: [ translation ] TERMINATE any order whose purpose is to restrict the access of the public and the Applicant to the Court record for file 500-17-095861-160. [ 5 ] The hearing of the motion, scheduled for April 5, 2017, was postponed to April 25, 2017. In the meantime, the CIUSSS discontinued its originating application. It filed a notice of discontinuance on April 19, 2017 and, over the next few days, tried to retrieve the four exhibits filed in support of its application.

However, the staff of the court office could not find the record. [ 6 ] On April 21, 2017, Mr. Kamel applied to the Superior Court for authorization to withdraw the originating application from the court record or, in the alternative, for an order preventing the public from having access to it. The CIUSSS did not oppose Mr. Kamel’s application, but MediaQMI indicated its opposition on April 24, 2017.

[7] On April 25, 2017, Gagnon J. heard MediaQMI’s motion in camera. At the hearing, counsel for the CIUSSS madean oral request to retrieve the exhibits filed in the court record, emphasizing that the expert forensic accounting report produced by PwCwas private. MediaQMI opposed that request to retrieve the exhibits. Gagnon J. took the case under advisement after extending thesealing order until his judgment was rendered. No other conservatory measure was sought by any of the parties. III. Judicial History A. Quebec Superior Court, 2017 QCCS 4691 (Gagnon J.) [8] Gagnon J. rendered his decision on July 20, 2017.

After noting that MediaQMI was neither a party to the litigationnor, strictly speaking, an intervenor, he decided the motion to unseal on the basis of the test set out in Dagenais v. CanadianBroadcasting Corp., (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442(“Dagenais/Mentuck test”). Finding that the evidence was insufficient to depart from the principle of open court proceedings, heobserved that the mere desire to avoid embarrassment for Mr. Kamel and negative publicity for the CIUSSS did not justify keeping therecord confidential.

He therefore ordered that the record be unsealed. [9] With regard to the oral request to retrieve the exhibits, Gagnon J. stated that the rights of journalists and the mediado not override the application of the ordinary rules of the Code of Civil Procedure. He added that the efficiency of civil procedure isbased in part on out-of-court settlements and discontinuances. As soon as a proceeding ends, he wrote, the parties have complete freedomto retrieve all exhibits from the record and to shield them from public scrutiny; indeed, art. 108 C.C.P. requires them to do so.

Becausethe proceeding in this case had been terminated by a discontinuance, Gagnon J. authorized the CIUSSS to remove its exhibits from thecourt record. Counsel for the CIUSSS retrieved them the day after the judgment was rendered, on July 21, 2017. After readingMediaQMI’s notice of appeal, he sent its counsel an email written [translation] “[w]ithout prejudice” in which he confirmed, “withoutany admission, that we are keeping a copy of the exhibits . . . until the appeal is decided or settled”: A.R., at p. 82. B.

Quebec Court of Appeal, 2019 QCCA 814 (Marcotte and Schrager JJ.A. and Samson J. (ad hoc)) [10] The three Quebec Court of Appeal judges wrote separate reasons to dispose of MediaQMI’s appeal from theconclusion relating to the retrieval of exhibits. [11] Citing Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743, Samson J.noted that Quebec courts may not create positive rules of civil procedure, much less rules that would be contrary to the Code of CivilProcedure. In his view, MediaQMI’s motion was ancillary to the litigation between Mr. Kamel and the CIUSSS.

By terminating theproceeding, the discontinuance had also resulted in a loss of jurisdiction over that ancillary motion. Since the parties controlled thecourse of their case, the CIUSSS could retrieve its exhibits as soon as the discontinuance was filed. The Dagenais/Mentuck test did notapply, because that test presupposes a discretion that did not exist in this case. First, there was no longer any litigation between theparties; second, art. 108 C.C.P. confers no discretion.

Samson J. was therefore of the view that the appeal should be dismissed. [12] Schrager J.A. arrived at the same result, but for different reasons. In his opinion, discontinuance creates a legalfiction that puts the parties back in the position they were in prior to the court proceedings; it takes exhibits out of the public domain andreturns them to the private sphere. The justification for dismissing MediaQMI’s application lies in the fact that there were no active courtproceedings and that the documents were private; it does not lie in art. 108 C.C.P.

Schrager J.A. described that provision as being purelyprocedural and intended to reduce the costs associated with court records; as a result, he did not regard it as a valid basis for a decision todeny access to the exhibits. The Dagenais/Mentuck test could not apply in the absence of active court proceedings.

Schrager J.A.nonetheless observed, in obiter, that that test might permit access to documents relating to litigation that had ended in the limited casewhere the purpose of the motion was to scrutinize the judicial process as such, but this was not the case here: MediaQMI was seekinginformation about the parties themselves, not about the judicial process that had led to the discontinuance. [13] In her dissenting reasons, Marcotte J.A., like her colleague Schrager J.A., found that art. 108 C.C.P. sets out anadministrative rule whose purpose is to declutter court records; such a rule cannot be used to circumvent the fundamental principle ofopen court proceedings.

In her view, the Superior Court judge had erred by disregarding the fact that the motion to unseal had been filedbefore the CIUSSS’s discontinuance, that is, before the end of the proceeding. In light of the importance of the principle of openproceedings and the specific context of the motion, which concerned litigation relating to the management of public funds, Marcotte J.A.found that the Superior Court judge should have determined whether the exhibits were confidential before authorizing the CIUSSS toretrieve them.

She would therefore have referred the case back to the Superior Court so that it could decide that issue on the basis of theDagenais/Mentuck test. IV. Parties’ Arguments [14] It is important to note from the outset that MediaQMI is not challenging the constitutionality of art. 11 or art. 108C.C.P. Nor is it contesting the CIUSSS’s discontinuance. In this Court, it essentially argues that the scope of the principle of openproceedings must be analyzed in light of s. 2(

b) of the Canadian Charter of Rights and Freedoms and the analogous guarantees set out inthe Quebec Charter, and that its application for access to exhibits should therefore be decided on the basis of the Dagenais/Mentuck test.Relying on the legislative history of art. 108 C.C.P., it argues that this provision does not override the exercise of its constitutional rights.It maintains that the CIUSSS’s discontinuance and the subsequent retrieval of the exhibits in issue did not make its application for accessto the exhibits obsolete: the filing of its motion to unseal allegedly crystallized its rights by giving it an acquired right to argue itsapplication.

According to it, art. 11 C.C.P. guarantees a right of access to exhibits that is not limited to what is found in the court recordconcerned. In oral argument, it qualified the acquired rights argument by stating that the principle of open proceedings protects the rightto have applications for access to exhibits decided even several years after a proceeding has ended (transcript, at pp. 21-22).

Applying theDagenais/Mentuck test to the facts of the case, MediaQMI takes the position that there is no reason for the exhibits in issue to beconfidential, and it therefore asks the Court to declare that they are public and to order the CIUSSS to provide it with a copy of them. [15] The CIUSSS argues that the public nature of a court record does not necessarily mean that exhibits will continue tobe part of it. The right to consult records is limited to what is contained within the records at the time they are consulted. That content is

circumscribed by the guiding principle of procedure that the parties control the course of their case as well as by art. 108 C.C.P. TheCIUSSS takes the view that art. 108 C.C.P. creates an exception to the principle of open proceedings given that it is an instance where“the law . . . restricts access . . . to certain documents filed in a court record” (art. 11 para. 2 C.C.P.). As art. 108 C.C.P. confers nodiscretion on a judge, it follows that the Dagenais/Mentuck test does not apply. [16] Mr.

Kamel argues that the position taken by MediaQMI implies the creation of a new procedural rule that would becontrary to the rules set out in the Code of Civil Procedure. He submits that the preliminary provision of the Code and the principles ofstatutory

interpretation prevent art. 108 C.C.P. from being reduced to a purely administrative provision; the words of that

article areclear, and the legislature would have used different language if it had intended to limit the freedom of parties to retrieve their exhibits.Mr. Kamel adds that because MediaQMI was never a party to the proceeding, it cannot contest the discontinuance or the consequences itmay have had for its rights. Like the CIUSSS, he argues that art. 108 C.C.P. determines the outcome of the application for access toexhibits and makes the Dagenais/Mentuck test inapplicable. V. Issues [17] This appeal raises two questions: A.

What is the extent of the right conferred by the Code of Civil Procedure to have access to the content of court records? B. Is MediaQMI entitled to have access to the exhibits that were in the court record at the time it filed its motion? VI. Analysis A. What Is the Extent of the Right Conferred by the Code of Civil Procedure to Have Access to the Content of Court Records? [18]

Article 11 C.C.P. sets out the principle of open court proceedings and gives members of the public the right to “haveaccess to court records and entries in the registers of the courts”. This provision guarantees access to court records and to what theycontain at the time they are consulted, aside from confidential information. Where an exhibit is retrieved from a record pursuant toart. 108 C.C.P., it generally returns to the private sphere.

Article 11 C.C.P. therefore does not confer a specific right to access exhibitsthat were once part of court records. A number of considerations favour this

interpretation: the text, object and scheme of the Code ofCivil Procedure, the legislative history, the guiding principles of civil procedure, and practical considerations relating to the resolution ofdisputes. [19] In their reasons, my colleagues suggest that the result I reach would make it possible for parties to circumvent theprinciple of open court proceedings, which they characterize as being of public order. That criticism is unfounded.

Article 11 C.C.P.gives access to a record whose content is governed in part by art. 108 C.C.P. The retrieval of exhibits from a record in the circumstancesdescribed in art. 108 C.C.P., when an application to consult the record is pending, does not “infring[e] a rule of public order” (reasons ofthe Chief Justice and Kasirer J., at para. 123); it simply constitutes the exercise of a right provided for in the Code of Civil Procedure.With great respect for my colleagues’ view, emphasizing the importance of the principle of open proceedings is not sufficient to extendits implications beyond what is authorized by law.

Fundamental though it may be, this principle remains circumscribed by the limits setout in the Code of Civil Procedure. Specifically, it does not give members of the public the right to have access to exhibits that have beenremoved from a court record in accordance with art. 108 C.C.P. [20] In the context of Quebec civil procedure, it is therefore impossible, in my view, to give the principle of openproceedings the interpretative scope given to it by MediaQMI and my colleagues without also rewriting several rules expressly set out inthe Code of Civil Procedure.

But as former Chief Justice Fauteux wrote, [translation] “[t]he Constitution contemplates only one systemfor making laws, not two systems that can function simultaneously, in a diverging manner”: Le livre du magistrat (1980), at p. 125.Whatever protection the principle of open proceedings may have under the charters, the legislature remains free to fix the scope of thatprinciple in the rules it enacts. It is not the role of the courts to conduct that exercise in its place. Accordingly, in the absence of aconstitutional challenge, the rules clearly stated in the Code of Civil Procedure are what apply.

(1) Interpretation of the Code of Civil Procedure [21] In Lac d’Amiante, the Court noted that in Quebec, “[t]he fundamental law concerning civil procedure is the lawenacted by the National Assembly . . . in a code that is expressed in general terms”: para. 35. In the civil law context, creating the lawremains the legislature’s prerogative: ibid.

The courts perform “only . . . a secondary or interstitial function” in this regard by makingrules of practice or exercising the inherent or ancillary powers provided for in arts. 25 and 49 C.C.P.: paras. 36-38. [22] This delimitation of the role of judges reflects a specifically civilian conception of the separation of judicial andlegislative functions: Lac d’Amiante, at paras. 37-39; L. LeBel, “La méthode d’interprétation moderne: le juge devant lui-même et enlui-même”, in S. Beaulac and M.

Devinat, eds., Interpretatio non cessat — Mélanges en l’honneur de Pierre-André Côté (2011), 103, atp. 112; Fauteux, at pp. 123-26. This conception dates back at least to Montesquieu, who described judges as “the mouth that pronouncesthe words of the law”: The Spirit of Laws (1777), vol. 1, at p. 208. That is an eloquent turn of phrase, though too rigid; the inclinationtoday would rather be to view judges as giving life to the dead letter of the law: P. B. Mignault, “Le Code Civil de la Province de Québecet son Interprétation” (1935), 1 U.T.L.J. 104, at p. 111.

Apart from exceptional situations in which civil law judges are called upon tostate the law that emerges from the interstices of the Code, their creative activity involves [translation] “discover[ing] the potentialities ofthe [statutory] language” and “thus complet[ing] the legislature’s work”: L. LeBel, “La loi et le droit: la nature de la fonction créatricedu juge dans le système de droit québécois” (2015), 56 C. de D. 87, at pp. 92-93; Cie Immobilier Viger Ltée v. Giguère Inc., (SCC), [1977] 2 S.C.R. 67, at pp. 75-77.

In so doing, they must avoid two opposite pitfalls: [translation] “counter[ing] the letterwith the spirit, and the spirit with the letter” (H. F. d’Aguesseau, Discours de M. le chancelier d’Aguesseau (new ed. 1822), vol. 1, atp. 287, cited in Fauteux, at p. 14). [23] The Quebec legislature has reiterated these principles relating to the role of judges in a preliminary provision whosenormative value is now well established: Lac d’Amiante, at para. 40; Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663,

at para. 30 ; L. Chamberland, ed., Le grand collectif: Code de procédure civile — Commentaires et annotations , vol. 1, Articles 1 à 309 (5th ed. 2020), at pp. 1-5. The third paragraph of that provision sets out the framework within which the Code of Civil Procedure must be interpreted: This Code must be interpreted and applied as a whole, in keeping with civil law tradition.

The rules it sets out are to be interpreted in the light of the specific provisions it contains or of those of the law, and in the matters it deals with, the Code compensates for the silence of the other laws if the context so admits. [ 24 ] The preliminary provision also states that the Code of Civil Procedure “governs” procedure before the courts “in harmony with the Charter of human rights and freedoms ”. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Communauté urbaine de Montréal , 2004 SCC 30 , [2004] 1 S.C.R. 789, this Court commented on a similar provision in the Civil Code of Québec , stating that “[t]he

interpretation of legislation must draw on [the] principles” set out in that Charter : para. 20. But there is a difference — and it is a significant one — between an

interpretation that draws on certain principles and an

interpretation that deviates , in the name of those principles, from the legislative intent clearly expressed in the wording of a law. [ 25 ] The charters are instruments that protect rights and freedoms; they are not large Procrustean beds designed to stretch laws to the desired size. On the contrary, they preserve the legislature’s autonomy by means of justificatory provisions like s. 1 of the Canadian Charter : T. A. Cromwell, S. Anstis and T. Touchie, “Revisiting the Role of Presumptions of Legislative Intent in Statutory

Interpretation” (2017), 95 Can. Bar Rev. 297, at p. 322. In Quebec, the legislature made this very clear by enacting ss. 9.1 and 51 of the Quebec Charter : 9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, State laicity, public order and the general well-being of the citizens of Québec. In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law. 51. The Charter shall not be so interpreted as to extend, limit or amend the scope of a provision of law except to the extent provided in

section 52. [ 26 ] It is also important to note that in Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 , [2002] 2 S.C.R. 559, this Court rejected the argument that courts should interpret statutes so as to make them consistent with the principles or values of the Canadian Charter , except to resolve an ambiguity that persists after applying the contextual approach to

interpretation: . . . a blanket presumption of Charter consistency could sometimes frustrate true legislative intent, contrary to what is mandated by the preferred approach to statutory construction. . . . . . . To reiterate what was stated in Symes , supra , and Willick , supra , if courts were to interpret all statutes such that they conformed to the Charter , this would wrongly upset the dialogic balance. Every time the principle were applied, it would pre-empt judicial review on Charter grounds, where resort to the internal checks and balances of s. 1 may be had.

In this fashion, the legislatures would be largely shorn of their constitutional power to enact reasonable limits on Charter rights and freedoms, which would in turn be inflated to near absolute status. Quite literally, in order to avoid this result a legislature would somehow have to set out its justification for qualifying the Charter right expressly in the statutory text, all without the benefit of judicial discussion regarding the limitations that are permissible in a free and democratic society. Before long, courts would be asked to interpret this sort of enactment in light of Charter principles.

The patent unworkability of such a scheme highlights the importance of retaining a forum for dialogue among the branches of governance. As such, where a statute is unambiguous, courts must give effect to the clearly expressed legislative intent and avoid using the Charter to achieve a different result. [Emphasis deleted; paras. 64 and 66.] (See also Pharmascience Inc. v. Binet , 2006 SCC 48 , [2006] 2 S.C.R. 513, at para. 29 ; R. v. Clarke , 2014 SCC 28 , [2014] 1 S.C.R. 612, at paras. 12-15 .) [ 27 ] This approach accords with the interpretative provisions of the Quebec Charter , including s. 53 : 53.

If any doubt arises in the

interpretation of a provision of the Act, it shall be resolved in keeping with the intent of the Charter . There is therefore no doubt that the Quebec Charter can be used to interpret the Code of Civil Procedure in appropriate circumstances. However, this possibility is not an invitation to ignore the language of the statute and the intention expressed in it.

(2) The Principle of Open Court Proceedings in Quebec Civil Procedure [ 28 ] Quebec has had four codes of civil procedure, those of 1867, 1897, 1965 and 2016. The codification of the principle of open court proceedings dates back to the Code of Civil Procedure , S.Q. 1897, c. 48, which provided that only “sittings of a court or of a judge” were public, other than in exceptional cases where secrecy was necessary: art. 16. The 1897 codifiers drew inspiration from similar provisions found in the French and Genevan codes of civil procedure: O. P. Dorais and A. P.

Dorais, Code de procédure civile de la province de Québec, comprenant les observations spéciales des commissaires chargés de la révision et modification du Code de procédure civile du Bas-Canada (1897), at p. 97. It is noteworthy that those provisions focused primarily on the public nature of oral argument: Code de procédure civile ( France ), 1806, art. 87;

Loi sur la procédure civile du canton de Genève , 1837, s. 84. Like its predecessor, the Code of Civil Procedure , CQLR, c. C-25 , enacted in 1965 (“former Code of Civil Procedure ” or “former C.C.P. ”), stated that “sittings of the courts” were public: art. 13 .

Section 23 of the Quebec Charter , enacted in 1975, was along the same lines, although it extended the application of the principle beyond the courts. [ 29 ] The open court principle was originally extended to court records not by legislation, but by the rules of practice made in the exercise of the power conferred on the courts by art. 47 of the former Code of Civil Procedure . The Quebec Superior Court

had made rules authorizing the public to have access to its records and registers during business hours, subject to exceptions relating to confidential documents: Rules of practice of the Superior Court of Québec in civil matters , R.R.Q. 1981, c. C-25, r. 8, rules 2 and 3 . The Court of Québec had adopted rules of practice to the same effect: Regulation of the Court of Québec , CQLR, c. C-25, r. 4, ss. 3 , 4 , 18 and 19 .

It was clear at the time that this right of access concerned the physical court records in which parties filed their exhibits and from which they retrieved them once a proceeding had ended. [ 30 ] In its 2001 report, the Civil Procedure Review Committee made note of the change to the principle of openness introduced by the courts’ rules of practice: [ translation ] The importance of the open court principle in the administration of justice, both for parties and for the public, justifies continuing to codify it and structuring its application, including to specify the criteria for limiting or excluding it.

All of the rules on the subject should also be harmonized, including those made by various courts concerning access to and the keeping and consultation of their records , such as

section 3 of the Rules of practice of the Superior Court of Québec in civil matters . These fundamental matters in the administration of justice should be dealt with by the code. In this regard, it is appropriate here to draw inspiration from the rules of practice in force while updating them to take account of information technologies or adding to them to ensure better protection of information. On another note, the current wording of

article 13 of the Code with respect to the openness of proceedings is imprecise given that, according to the majority opinion in the case law, the term “ audiences ” in the French version refers only to the trial. Yet the public nature of justice encompasses the whole of the proceeding and the record. [Emphasis added.] ( Une nouvelle culture judiciaire (2001), at pp. 42-43) The Committee therefore recommended “[s]tating that civil justice is public, both with regard to the proceeding and with regard to the record”: p. 43. [ 31 ] In 2016, a new Code of Civil Procedure came into force. In arts. 11 to 16, it sets out the general scheme relating to the public nature of civil justice.

Article 11 incorporates the Committee’s recommendation and frames the principle of open proceedings as a twofold principle involving two distinct rights. It gives members of the public the right to “attend court hearings wherever they are held” and the right to “have access to court records and entries in the registers of the courts”.

The legislature thus followed the courts’ lead by including in art. 11 C.C.P. a right to access records similar to the one provided for in the rules of practice, but it did not go so far as to create a specific right to access the exhibits filed in the course of a proceeding. [ 32 ] The Code of Civil Procedure also indicates that the law may “restric[t] access to the court records or to certain documents filed in a court record”: art. 11 para. 2 C.C.P.

Article 12 C.C.P. states, for example, that a court may make an exception to the principle of open proceedings if “public order . . . requires . . . that access to a document . . . be prohibited or restricted”.

In addition, there are exceptions to the principle for records involving sensitive matters and for certain documents filed in a sealed envelope: art. 16 C.C.P . [ 33 ] This last point, which relates to the form in which documents must be filed, is echoed in art. 108 para. 1 C.C.P. , which requires parties to file exhibits and other documents that contain personal and confidential information in a form that protects the confidentiality of that information.

The explicit reference to the general scheme relating to the public nature of civil justice set out in arts. 11 to 16 C.C.P. is clear from the text of art. 108 C.C.P . This is confirmed by the parliamentary record and the commentary of the Minister of Justice: National Assembly of Quebec, Standing Committee on Institutions, “Étude détaillée du projet de loi n o 28 — Loi instituant le nouveau Code de procédure civile”, Journal des débats , vol. 43, No. 79, 1st Sess., 40th Leg., October 29, 2013, at pp. 73-77; Ministère de la Justice, Commentaires de la ministre de la Justice: Code de procédure civile,

chapitre C-25.01 (2015), at pp. 106-8. [ 34 ] This reference to the general scheme is clear both from the language used in art. 108 and from the holistic reading of the Code of Civil Procedure called for by the third paragraph of its preliminary provision and by s. 41.1 of the

Interpretation Act , CQLR, c. I-16 . The term “ dossier ” (record or case) is used many times in the French version of the Code of Civil Procedure and generally refers to the court record, except where it is used metonymically to refer to the court proceeding associated with that record: see, for example, art. 19 C.C.P. (the parties control the course of their dossier (case)) or art. 205 C.C.P. (a judge who grants an application for recusation must withdraw from the dossier (case)).

Article 108 para. 2 C.C.P. refers to documents filed “ au dossier ” (in the record). In this specific case, the dossier in question can only be the court record mentioned in art. 107 C.C.P. to which the general scheme set out in arts. 11 to 16 C.C.P. applies. [ 35 ] It therefore seems to be beyond question that art. 108 C.C.P. concerns the content of the records contemplated in arts. 11 to 16 C.C.P. , that is, the records that are subject to a court’s supervisory power and control. As I will explain, art. 108 C.C.P. governs the keeping, retrieval and preservation of the exhibits filed in the record to which art. 11 C.C.P. gives access.

(3) Rules Set Out in

Article 108 C.C.P. [ 36 ] Schrager and Marcotte JJ.A. accepted MediaQMI’s argument that significantly limited the scope of art. 108 C.C.P. on the basis of certain passages from parliamentary debates, including statements made spontaneously in answer to questions raised before a committee of the whole House and statements made by opposition members. In her dissenting reasons, Marcotte J.A. wrote the following: [ translation ] . . . the scope of

article 108 C.C.P. must be brought back to its context, which is that this

article reiterates the rule previously set out in

article 331.9 of the former Code of Civil Procedure , which was enacted to reduce the costs of the judicial system and to streamline court records. This is certainly a laudable goal, but it still cannot justify circumventing the fundamental principle that court proceedings are public. [para. 54] (See also the reasons of Schrager J.A., at para. 42.)

[37] With respect, some nuance is required. No rule of statutory

interpretation justifies neutering a legal rule stated inclear terms on the basis of statements made during parliamentary debates. Otherwise, more weight would be given to spontaneousindividual statements than to the text enacted by the legislature, each word of which must be presumed to have been chosen with care.This Court has said repeatedly that “statutory

interpretation entails discerning legislative intent by examining statutory text in its entirecontext and in its grammatical and ordinary sense, in harmony with the statute’s scheme and objects”: Michel v. Graydon, 2020 SCC 24,[2020] 2 S.C.R. 763, at para. 21; see also Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21.Parliamentary debates can certainly inform the

interpretation process, but they must not make us forget the caveats our Court hasattached to the admission of this type of extrinsic evidence: Construction Gilles Paquette ltée v. Entreprises Végo ltée, (SCC), [1997] 2 S.C.R. 299, at para. 20; Rizzo Shoes, at para. 35; Canadian National Railway Co. v.

Canada (Attorney General), 2014SCC 40, [2014] 2 S.C.R. 135, at para. 47. [38] The information obtained from parliamentary debates is particularly useful when it “confirm[s] that theinterpretation given is correct”: Construction Gilles Paquette, at para. 20; see also Canada 3000 Inc. (Re), 2006 SCC 24, [2006] 1 S.C.R.865, at para. 57, and P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The

Interpretation of Legislation in Canada (4th ed.2011), at pp. 466-68. This is a matter of predictability in the law. As one author notes, “arguments from parliamentary history must notresult in the refusal to apply a clear rule, as doing so would unduly compromise the reader’s right to rely on the letter of the lawinterpreted in its context”: Côté, at pp. 467-68.

With respect, the approach proposed by MediaQMI, and accepted by Schrager andMarcotte JJ.A., does the exact opposite of that recommendation. [39] In these circumstances, I think it is appropriate to highlight that courts do not have to interpret — let aloneimplement — the objective underlying a legislative scheme or provision; what they must interpret is the text through which thelegislature seeks to achieve that objective.

The objective may be defined at various levels of abstraction: care must therefore be taken notto define it too generally by remembering that the goal of the interpretative exercise is to find harmony between the words of the statuteand the intended objective, not to achieve the objective “at all costs”: Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6,[2013] 1 S.C.R. 271, at para. 174 (per Cromwell J.). In addition, this exercise may bring several objectives into play at the same time, allof which must be taken into account: TELUS Communications Inc. v.

Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144, at paras. 82-83; R. v.Rafilovich, 2019 SCC 51, [2019] 3 S.C.R. 838, at paras. 29-30. In my view, this is the case of art. 108 C.C.P. I will explain. [40] It is inaccurate to say that art. 108 C.C.P. merely “reiterates the rule previously set out in

article 331.9 of the formerCode of Civil Procedure”: C.A. reasons, at para. 54. It does much more than that. The first and third paragraphs of art. 108 C.C.P. arenew law: Commentaires de la ministre de la Justice, at p. 107. The second paragraph reiterates not one rule, but two complementaryrules: those set out in arts. 83 and 331.9 of the former C.C.P. [41] Under art. 83 of the former C.C.P., exhibits had to remain in the record until the end of the proceeding, but it waspossible to take them out “with the consent of the opposite party or the authorization of the clerk”.

Retrieval of exhibits with the clerk’sauthorization did not make its way into the new Code of Civil Procedure. As for retrieval with consent, the consent of all the parties isnow required. Apart from this, the rule has not changed: exhibits must remain in the record until the end of the proceeding. Once theproceeding has ended, however, it is no longer necessary for exhibits to remain in the record.

Article 331.9 of the former C.C.P. set out asecond rule: it required parties to retrieve their exhibits within one year after the end of the proceeding, failing which the exhibits wouldbe destroyed. This second rule is found in virtually the same form in art. 108 C.C.P. [42]

Article 331.9 of the former C.C.P. was enacted in 1994 as part of Bill 24,

An Act to amend the Code of CivilProcedure, 3rd Sess., 34th Leg. That bill, which also affected art. 83 of the former C.C.P., reformed the general scheme for thecommunication and filing of exhibits and introduced mechanisms for the retrieval and destruction of exhibits. First, it encouraged partiesto exchange information with regard to their respective evidence and to communicate their exhibits to one another directly, without firstfiling them in the court record. Second, it contemplated that, from then on, exhibits would be filed and kept on the basis of usefulnessand necessity.

It therefore delayed the filing of exhibits until the date closest to the start of the trial when the court would need them, andit provided for the streamlining of records when keeping the exhibits no longer served any purpose in the proceeding: arts. 331.7 and331.9 of the former C.C.P.; see also National Assembly of Quebec, “Adoption du principe — Projet de loi 24 — Loi modifiant le Codede procédure civile”, Journal des débats, vol. 33, No. 30, 3rd Sess., 34th Leg., June 1, 1994. [43] That scheme, of which arts. 83 and 331.9 of the former C.C.P. were two key components, was incorporated insubstance into the new Code of Civil Procedure.

Its effect was to eliminate the role of the court office and court record as anintermediary between the parties for forwarding their respective exhibits. In doing so, it made the parties and their lawyers moreaccountable for the conduct of the proceeding and the fairness of the debate: Civil Procedure Review Committee, at p. 138; Imperial Oilv. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287, at para. 26.

It thus gave effect to two principles that were later made guiding principles ofcivil procedure: the parties’ control over the course of their case (art. 19 C.C.P.) and their duty to cooperate and to keep one anotherinformed (art. 20 C.C.P.). [44] The scope of arts. 83 and 331.9 of the former C.C.P. should not be narrowed on the ground that the legislature’sunderlying objective was purportedly to reduce the costs associated with the judicial system. An objective defined in such a generalmanner is, in fact, of quite limited assistance for the purposes of statutory

interpretation: a very large part of civil procedure could be saidto be intended to reduce the costs of the judicial system.

While economic considerations related to the storage of court records may havemotivated the enactment of art. 331.9 of the former C.C.P., the fact remains that the legislature inserted that provision into a generalscheme designed to increase the parties’ responsibility, and lessen that of the courts, for the communication, filing and preservation ofexhibits. [45] As the successor of the scheme introduced by Bill 24 in 1994, art. 108 C.C.P. is anything but a “purely procedural (ifnot mechanical)” measure that can be displaced by the principle of open proceedings: C.A. reasons, at para. 42 (per Schrager J.A.).

Onthe contrary, it revises and unifies the rules on the keeping, retrieval and preservation of the exhibits filed in the court record to whichart. 11 C.C.P. gives access. It also deals, albeit incidentally, with the filing of exhibits, although most of the rules on that subject havebeen grouped together in arts. 246 to 252 C.C.P. Insofar as it governs the content of court records, art. 108 C.C.P. has a direct impact onthe information to which the public can have access under art. 11 C.C.P.

[46] I note in passing that the Civil Procedure Review Committee recommended the creation of a computerized systemfor storing court documents and records: p. 107. Had it been implemented, that recommendation might have made it possible for thepublic to have access to documents that had been retrieved from court records under art. 108 C.C.P. However, nothing ever came of therecommendation. It would be an encroachment on the sphere of the legislature to implement it indirectly by ordering a party to aproceeding that has ended to provide a copy of the exhibits retrieved by that party to a member of the public who wishes to consult them.

(4) Respective Scope of Articles 11 and 108 C.C.P. [47] The exhibits filed in a court record are intrinsically related to the evidence the parties intend to adduce in support oftheir allegations: H. Reid, with S. Reid, Dictionnaire de droit québécois et canadien (5th ed. 2015), at p. 474, “pièce” (exhibit);S. Guillemard and S. Menétrey, Comprendre la procédure civile québécoise (2nd ed. 2017), at pp. XVIII, “pièce” (exhibit), and 234.

Justas the parties control the course of their case and have control of their evidence, they necessarily also have control of their exhibits:art. 19 C.C.P.; Imperial Oil, at para. 25. They can therefore retrieve them at any stage of the proceeding, subject to the consent of theother parties; the Code of Civil Procedure does not require any prior authorization from the court.

Article 108 C.C.P. thus implicitlyrecognizes that, even after they are filed in the court record, exhibits remain the property of the parties. Indeed, if the filing of exhibitstransferred ownership to the court, the Code would not allow the parties to retrieve them at any stage of the proceeding, and it certainlywould not require the parties to retrieve them once the proceeding has ended. While the exhibits are in its possession, the court merelyhas “custody” of them: Vickery v. Nova Scotia Supreme Court (Prothonotary), (SCC), [1991] 1 S.C.R. 671, atpp. 681-82. This is why it does not keep the exhibits in its records indefinitely. [48]

Article 11 C.C.P. gives the public the right to have access to court records with the documents and exhibits theycontain at the time they are consulted, subject to exceptions for confidential information. It gives “access to exhibits” only to the extentthat they are in the record. Where parties are slow to retrieve their exhibits at the end of a proceeding, the exhibits will remain accessibleto the public until they have been retrieved from the record or destroyed by the court clerk.

But once the exhibits have been retrieved ordestroyed, the public no longer has access to them. [49] The conclusion at which I arrive is in keeping with the intention expressed by the legislature through the words ofarts. 11 and 108 C.C.P., with the legislative objectives underlying those provisions, with the general scheme of the Code of CivilProcedure and with civil law principles of

interpretation. It also avoids giving the principle that civil justice is public set out in art. 11C.C.P. a scope that might distort that principle, just as it avoids undermining other important objectives of the Code of Civil Procedure,such as the prevention and resolution of disputes: preliminary provision, para. 2, arts. 1, 9 para. 2 and 19 para. 3 C.C.P. [50] In civil matters, parties generally go before the courts because they need [translation] “the operation of socialconstraints” to enforce their rights and resolve their conflict: H.

Motulsky, Principes d’une réalisation méthodique du droit privé (Lathéorie des éléments générateurs des droits subjectifs) (1948), at p. 35 (emphasis deleted). But the Code of Civil Procedure does notchain parties to the proceedings they have initiated; on the contrary, it reminds them that they may, at any time, settle their dispute andthereby terminate a proceeding: art. 19 para. 3 C.C.P. It therefore subordinates the judicial resolution of disputes to the restoration ofsocial peace: preliminary provision, para. 2; S. Guillemard, “Réflexions autour des sept premiers articles du Code de procédure civile”,in S.

Guillemard, ed., Le Code de procédure civile: quelles nouveautés? (2016), 123, at pp. 128-29. [51] Several considerations may lead to the resolution of a dispute brought before a court. One of them is a desire forconfidentiality: Sup. Ct. reasons, at para. 119. As my colleague Abella J. once noted, a climate of confidentiality “promotes settlements”:Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623, at para.

Article 4 C.C.P. recognizesthis as well. The objective of facilitating the resolution of disputes would surely be undermined if parties who wished to come to anagreement after taking a matter to court could not bring the documents they had filed with the court back into the private sphere. Whenparties decide to terminate a proceeding, they must be free to retrieve their exhibits. Indeed, the Code of Civil Procedure requires them todo so. [52] Exhibits filed in a court record may reveal various aspects of parties’ private lives, but they are accessible to thepublic nonetheless.

The fact that civil justice is public means that those who bring court proceedings must waive, in part, their right toprivacy: Lac d’Amiante, at para. 42. However, they waive that right temporarily.

By arguing that any application for access to exhibitsremoved from a record should be decided on the basis of the Dagenais/Mentuck test, even when the exhibits in question were removed several years earlier, MediaQMI seeks instead to make the waiver a permanent one.[2] It would impose a burden as heavy as it isunjustified on those who were parties to litigation that has now ended and who would like to preserve the confidentiality of the exhibitsthey have retrieved.

If by chance a journalist or member of the public applied for access to those exhibits, the parties would in fact berequired to show that confidentiality is “necessary in order to prevent a serious risk to the proper administration of justice becausereasonably alternative measures will not prevent the risk” and — given that the two branches of the test are cumulative — that thesalutary effects of confidentiality outweigh its deleterious effects on freedom of expression and the public interest in open proceedings:Mentuck, at para. 32; see also Dagenais, at p. 878. [53] That position is inconsistent with the legislative intention reflected in art. 11 C.C.P., with the general scheme of theCode of Civil Procedure and with the objective of facilitating the resolution of disputes.

It also strikes me as unworkable in light of thesituation contemplated by art. 108 para. 2 C.C.P. in which the court clerk may destroy exhibits that are not retrieved after one year. Theprinciple of open proceedings would thus vary in scope depending on whether or not exhibits have been destroyed. [54] In my view, the position advanced by MediaQMI must be rejected. The right to have access to court records set outin art. 11 C.C.P. is not meant to ensure perpetual access to exhibits that were in a court record at some point.

Openness as conceived ofby the Code of Civil Procedure does not relate to the parties and the private exhibits through which they inte

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