Re Application by Export Development Canada, 2016 ONCJ 74

ONTARIO COURT OF JUSTICE East Region (Ottawa) CITATION: Re Application by Export Development Canada , 2016 ONCJ 74 DATE: 3 February 2016 IN THE MATTER OF an Application under s. 487.0193 of the Criminal Code to quash the Production Order for documents under s. 487.014 of the Criminal Code issued to Export Development Canada August 7, 2015 Before Justice Robert Wadden Written submissions filed September 2, 2015. Responding submissions filed November 5, 2015. Reply submissions filed November 30, 2015. Reasons released on February 3, 2016 Peter K.

Doody ............................. counsel for the Applicant, Export Development Canada Moray Welch ................................... counsel for the Public Prosecution Service of Canada WADDEN J.: [ 1 ] Export Development Canada (“EDC”) brought an application to revoke a production order issued under s. 487.014 of the Criminal Code . The production order as issued required EDC to produce files pertaining to one of its customers.

EDC takes the position that the production order should be revoked because the Export Development Act states that the information sought is privileged and cannot be disclosed during a criminal investigation. The Crown takes the position that there is no privilege that insulates EDC customer information from a production order, and that the Export Development Act provides for the disclosure of the information in the course of a criminal investigation. The Production Order [ 2 ] On August 7, 2015 I issued the Production Order (the “Order”) pursuant to s. 487.014 of the Criminal Code .

The Order was issued as part of an investigation by the RCMP. No charges had been laid. The Order was made subject to a Non-Disclosure Order and a Sealing Order. The details of the Order are to be kept confidential. These reasons will not discuss the specifics of the Order but will address the issue of whether EDC is obliged to comply with it or any other order issued under s. 487.014 of the Criminal Code . Background [ 3 ] The issuance of a production order is governed by

Section 487.014 of the Criminal Code . Before making the order the judge must be satisfied that an offence under the Criminal Code or another act of Parliament has been committed and that there is a document or data in the control of the person to whom the order is directed that will afford evidence of the commission of the offence. The Order in this case was directed to EDC and requires it to produce documents in its possession or control to the RCMP. [ 4 ] The Criminal Code provides a process for review of a production order by the issuing judge.

The person to whom the production order was directed may apply in writing to the issuing judge to revoke the order if production of the material requested would disclose information that is privileged or otherwise protected from disclosure by law.

Section 487.0193 of the Code states: 487.0193

(1) Before they are required by an order made under any of sections 487.014 to 487.018 to produce a document, a person, financial institution or entity may apply in writing to the justice or judge who made the order — or to a judge in the judicial district where the order was made — to revoke or vary the order. […]

(4) The justice or judge may revoke or vary the order if satisfied that […] (

b) production of the document would disclose information that is privileged or otherwise protected from disclosure by law. [ 5 ] EDC brought this application pursuant to s. 487.0193(1) of the Criminal Code by filing written submissions on September 2, 2015. The Public Prosecution Service of Canada (“PPSC”) filed written submissions in response on behalf of the RCMP on November 5, 2015. Reply submissions were filed by EDC on November 30, 2015.

Export Development Canada (“EDC”) [ 6 ] Export Development Canada is a federal Crown Corporation established by the Export Development Act, R.S.C. 1985, c. E- 20 (the “ EDC Act ”) for the purposes of supporting and developing Canada’s export trade. It has broad powers to act as a public financial institution, including extending loans and lines of credit and providing credit insurance. Its purpose is to encourage buyers in other countries to purchase Canadian products. EDC acts alongside and may compete with private-sector lenders and insurers.

EDC’s customers are those involved in the export of Canadian products or the purchase of Canadian exports. In the course of performing its functions EDC may receive sensitive financial or other business information from its customers. Positions of the Parties [ 7 ] On this application, EDC takes the position that the information that it would be required to produce pursuant to the Order is privileged and the Order should be revoked.

EDC acknowledges that there is an exception in the EDC Act that allows for production of the requested information “for the purpose of prosecuting an offence …” and takes the position that it would provide the information requested if there were a court proceeding. However, EDC argues that it cannot provide the requested information during a criminal investigation in which no court proceeding has been commenced. EDC relies on subsections 24.3(1) and (2) of the EDC Act , which state: 24.3

(1) Subject to subsection (2), all information obtained by the Corporation in relation to its customers is privileged and a director, officer, employee or agent of, or adviser or consultant to, the Corporation must not knowingly communicate, disclose or make available the information, or permit it to be communicated, disclosed or made available.

(2) Privileged information may be communicated, disclosed or made available […] (

b) for the purpose of prosecuting an offence under this Act or any other Act of Parliament; … [ 8 ] The Crown takes the position that the term “privileged” in s. 24.3 of the EDC Act is subject to legislative

interpretation and that it is not as broad as EDC asserts. The Crown asserts that the term as used in the EDC Act is more akin to “confidential’, meant to indicate that customer information is not disclosable in the context of Access to Information requests. The Crown’s position is that there was no intention that the EDC Act create a class privilege that would put the EDC in a unique position among financial institutions in that it would insulate the clients of EDC from criminal investigation. Issues [ 9 ] In determining whether the Order should be varied or revoked I must determine: (

a) Whether the information ordered to be produced is privileged or otherwise protected from disclosure by law, as set out in s. 487.0193(1) of the Criminal Code ; and (

b) Is a criminal investigation considered part of “prosecuting an offence” as defined in s. 24.3(2) (

b) of the EDC Act ? Legislative History and Context of s. 24.3 of the EDC Act [ 10 ] The

summary of the Crown’s argument is that the term “privileged” as used in s. 24.3 of the EDC Act is not to be interpreted in the same sense as recognized legal privileges such as solicitor-client privilege, confidential informant privilege or public interest privilege. Rather, it is a term used in the EDC Act to refer to confidential business or financial information that cannot be divulged by EDC in the ordinary course of business or in an Access to Information request. It is not intended to create a new category of a legal privilege. [ 11 ]

Section 24.3 of the EDC Act was first enacted in 2006 as part of the Federal Accountability Act , S.C. 2006. The Federal Accountability Act made changes to the Access to Information Act that, for the first time, brought EDC in line with other federal government departments and agencies and made it subject to Access to Information requests.

The amendments to the Access to Information Act specifically addressed EDC, amending s. 18.1 of the Access to Information Act to state that EDC could, in response to a request, refuse to disclose “trade secrets or financial, commercial, scientific or technical information that belongs to, and has consistently been treated as confidential” by it. The Federal Accountability Act amended the EDC Act , by adding s. 24.3. [ 12 ] The Crown states that the link between s. 24.3 of the EDC Act and the Access to Information Act is clear upon reading the

preamble to the Federal Accountabilty Act , which states, in part:

Part 3 also amends the Access to Information Act to ensure that all parent Crown corporations … are encompassed by the definition “government institution” in

section 3 of the Access to Information Act … It amends the Export Development Act to include a provision for the confidentiality of information. [ 13 ] The Crown submits that not only the text of the statute but testimony heard at the time of the passage of the bill shed light on the intention of Parliament in amending the EDC Act as part of the Federal Accountability Act . When testifying before the Senate Committee on Legal and Constitutional Affairs on October 23, 2006, President of the Treasury Board John Baird spoke of the balancing of interests required in applying the Access to Information Act to EDC.

He stated that “… Canadian exporters that rely on access to Export Development Canada’s programs should not be hampered in competing on the world stage because their international customers deal with EDC, with their information subject to access to information laws.” In testimony before the House committee examining the bill the CEO of EDC spoke of the concerns EDC had about sensitive commercial information being protected from access to information requests and stated that the proposed s. 24.3 of the EDC Act and s. 18.1 of the Access to Information Act adequately addressed those concerns.

[14] As further evidence of the intention of Parliament, the Crown refers to the briefing book provided to members of the Senateand House committees which explained the purpose of the amendment enacting s. 24.3 of the EDC Act as follows: The proposed amendment creates a confidentiality provision in the Export Development Act for information obtained by the ExportDevelopment Corporation in relation to its customers.

This is required to protect the confidentiality of customer information when the Access to Information Act applies to the corporation … [15] The Crown takes the position that this evidence reveals that the intention of Parliament in enacting s. 24.3 of the EDC Actwas to address confidentiality concerns related to access to information requests as they impacted on EDC’s ability to conduct itsbusiness. The Crown is of the view that the context of the s. 24.3 amendment to the EDC Act demonstrates that the

section was includedsolely to address concerns arising from access to information requests and that this context informs an

interpretation of what the word“privilege” means as used in that section. Bilingual

Interpretation of the Statute [16] The Crown and EDC note that there are differences in the English and French texts of s. 24.3 of the EDC Act, and suggestthat different wording used in the French text may shed light on the

interpretation of the English text. [17] Whereas the English text of s. 24.3(1) of the EDC Act states that “information obtained by the Corporation in relation to itscustomers is privileged …” the French text states that “les renseignements recueillis par la Société sur ses clients sont confidentiels …” Whereas the English text of s. 24.3(2) states “Privileged information may be communicated, disclosed or made available …” the Frenchtext reads “La communication des renseignements protégés et l’accès à ceux-ci sont autorisés dans les cas suivants …” In the instanceswhere the English text refers to privileged information the French text refers to confidential or protected information. [18] EDC takes the position that the difference in wording creates an ambiguity in the statute and principles of bilingual statutoryinterpretation require that the narrower meaning of “privileged” must be applied over the broader meanings of “confidential” or“protected”.

EDC relies on Schreiber v. Canada (Attorney General), 2002 SCC 62 , [2002] 3 S.C.R. 269, at para. 56, whichstates: “A principle of bilingual statutory

interpretation holds that where one version is ambiguous and the other is clear andunequivocal, the common meaning of the two versions would a priori be preferred; […] Furthermore, where one of the two versions isbroader than the other, the common meaning would favour the more restricted or limited meaning ...” [19] EDC also relies on R. v. Daoust, 2004 SCC 6 , [2004] 1 S.C.R. 217, which sets out a fulsome process for bilingualstatutory

interpretation. In that decision, Bastarache J. stated, at paras. 27 and 28, 27. There is, therefore, a specific procedure to be followed when interpreting bilingual statutes. The first step is to determine whetherthere is discordance. If the two versions are irreconcilable, we must rely on other principles: […] A purposive and contextual approachis favoured: […] 28.

We must determine whether there is an ambiguity, that is, whether one or both versions of the statute are "reasonably capable ofmore than one meaning": […] If there is an ambiguity in one version but not the other, the two versions must be reconciled, that is, wemust look for the meaning that is common to both versions: Côté, supra, at p. 327. The common meaning is the version that is plain andnot ambiguous: […] [20] In applying the R. v. Daoust criteria to this application, it seems that, first of all, there is discordance between the English andFrench texts. The English text speaks of “privileged” information.

The French text speaks of confidential or protected information. Thisis not a direct translation. A direct translation would be to simply use the word “privilèges” in the French text, and it is perplexing whythat word is not used in the corresponding place in the French text of s. 24.3 of the EDC Act. This is in contrast to s. 487.0193 of theCriminal Code where the same word is used in both the English and French texts. The English text of s. 487.0193(4)(

b) states “Thejustice or judge may revoke or vary the order if satisfied that […] production of the document would disclose information that isprivileged or otherwise protected from disclosure by law.” The French text states “Le juge de paix ou le juge peut révoquerl’ordonnance ou la modifier s’il est convaincu, selon le cas […] que la communication révélerait des renseignements protégés par ledroit applicable en matière de divulgation ou de privilèges” (emphasis added in both versions).

In the EDC Act the use of words withdifferent meanings, when an exact translation was available and could have been used, results in discordance between the bilingual textsof s. 24.3. [21] The question must then turn to whether there is an ambiguity in the meaning and whether a plain and unambiguous meaningcommon to both languages can be found.

In examining the French text, the use of words meaning confidential and protected, and theabsence of the word meaning privileged, leads to the conclusion that the French version of s. 24.3 does not imbue the confidentialinformation collected by EDC with the legal status of privileged information. There is a French term for “privileged” and the terms“confidentiel” and “renseignements protégés” do not have the same meaning as “privilèges”. The French version does not create a legalprivilege for EDC client information. [22] The English term “privileged” is capable of more than one

interpretation. Privileged has a meaning in a legal context and abroader meaning in ordinary language. As counsel for EDC states in submissions, “the word ‘privileged’ has a legal meaning –information which is privileged cannot be introduced in evidence at a legal proceeding.” Black’s Law Dictionary defines “privileged” inpart as “1. Not subject to the usual rules or liabilities; esp., not subject to disclosure during the course of a lawsuit.” But the word “privileged” may have meaning beyond the recognized legal concept. The Canadian Oxford Dictionary, 2nd Edition, defines“privileged” in part, as “3(

a) legally protected from being made public (privileged communication) [… or…] 4. (of information) keptwithin a select group and not divulged to others.” While one meaning of “privileged” is that of a legally protected status, that is not theonly available meaning. The dictionary definition of the word includes a broader meaning that is synonymous with “confidential”. Thus there is an available meaning of confidential that would apply to both the English and French versions.

[23] In applying Justice Bastarache’s direction to seek a meaning that is common to both the French and English versions of s.24.3 of the EDC Act it would appear that a common meaning would be that EDC’s customer information is confidential or protectedinformation, rather than legally privileged information as that term is used in the Criminal Code. Exception “For the Purpose of Prosecuting an Offence” [24]

Section 24.3(2)(

b) of the EDC Act allows for the disclosure of “privileged information” in certain circumstances. Therelevant portions, for the purposes of this application, state that EDC customer information may be disclosed “for the purpose ofprosecuting an offence …” The corresponding phrase in the French text of s. 24.3(2)(

b) states that disclosure may be made where “ilssont destinés aux poursuites intentées …” , which refers to proceedings or prosecutions which have been instituted. EDC acknowledgesthat if a criminal charge were laid and a prosecution were taking place in court it would comply without objection to the production ofthe information requested. [25] The presence of this exception in s. 24.3 of the EDC Act undermines the argument that s. 24.3(1) creates a legally recognizedclass privilege.

Disclosure of “privileged information” once a criminal charge has been laid, but not before, would place the privilegeover EDC customer information in contrast to other categories of privilege, such as solicitor-client privilege or confidential informantprivilege. If s. 24.3 of the EDC Act were creating a new category of privilege, it would be an odd one in that it would exist at somestages of the legal process (the investigation) but not during the court process. Extent of the s. 24.3(2)(

b) Exception [26] EDC takes the position that the exception in s. 24.3(2)(

b) of the EDC Act refers to proceedings that have been commenced bythe laying of an information or indictment. It states that the French text – “poursuites intentées” - is particularly clear in referring toproceedings that have commenced. It takes the position that there is a distinction between investigating an offence and prosecuting anoffence and that the exception does not allow for the disclosure of EDC customer information during the course of an investigation.

EDC relies on Re Colledge and Niagara Regional Police Commission (1983), (ON CA), 44 O.R. (2d) 289 (C.A.), acase dealing with limitation periods, for the proposition that a “prosecution” refers to “conducting of criminal proceedings in courtagainst a person.” [27] The Crown urges a broader

interpretation of the phrase “for the purpose of prosecuting an offence.” It notes that the EDCAct does not specifically refer to the requirement that a criminal proceeding in court must have been commenced. This is in contrast tothe language of the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.), which states at s. 241(3), that (3) Subsections 241(1) and 241(2) do not apply in respect of (

a) criminal proceedings, either by indictment or on

summary conviction, that have been commenced by the laying of an information orthe preferring of an indictment, under

an Act of Parliament. (emphasis added) [28] In the EDC Act there is no definition of the phrase “for the purpose of prosecuting an offence”, nor any elaboration as foundin s. 241(3) of the Income Tax Act. Cases such as Re Colledge are of limited assistance, as they deal with the issue in different contextsthan the one at issue on this application. [29] The Crown argues that the term “prosecuting” includes a prospective prosecution and does not require that a prosecution becommenced, so long as a potential criminal prosecution is the objective for seeking the EDC customer information.

The Crown relies onthe definition of “prosecution” found in the Director of Public Prosecutions Act and argues that it is instructive in determining themeaning of the phrase in the EDC Act. The Director of Public Prosecutions Act S.C. 2006, c. 9, s. 121 was passed as part of the omnibusFederal Accountability Act, the same statute that created s. 24.3 of the EDC Act.

Section 2 of the Director of Public Prosecutions Actdefines a “prosecution” as including “… a proceeding respecting any offence, the prosecution – or prospective prosecution – of which isunder the jurisdiction of the Attorney General.” In the French version, the definition of “poursuite” similarly includes prospectiveproceedings – “Y sont assimilés les procédures liées à toute infraction dont la poursuite, même éventuelle …” (emphasis added). [30] EDC argues that the French text of s. 24.3(2)(

b) of the EDC Act is different and more specific than the English text andspecifies that a proceeding or prosecution – poursuite – must have been initiated or commenced in order for the exception to apply. Having considered this submission in light of the directions in R. v. Daoust I am in agreement that a common meaning between theFrench and English texts would require that a prosecution have been commenced or initiated for the exception to apply.

However, thatdoes not entirely settle the matter as an understanding of what a commenced prosecution means depends on what a prosecution means. [31] Parliament chose to define “prosecution” in the Director of Public Prosecutions Act (as part of the Federal AccountabilityAct) to broadly to include a prospective prosecution, which would include the stages of an investigation before charges are laid. Parliament could have restricted the exception in s. 24.3(2)(

b) of the EDC Act to only those matters which had been commenced in courtby the laying of a charge, as it did in s. 241 of the Income Tax Act. It did not do so in the EDC Act. In the absence of such clearlanguage in s. 24.3(2) of the EDC Act the definition found in the Director of Public Prosecutions Act informs the meaning of the phrase“for the purpose of prosecuting an offence” in the EDC Act. That phrase includes prospective prosecutions and all stages involved,including the investigative and evidence gathering stage before the laying of charges.

The requirement that the prosecution becommenced or initiated imports a requirement that the evidence gathering be part of a commenced investigation. It would be reasonablefor EDC to take the position that information could only be provided pursuant to a judicially authorized order, such as a production orderor search warrant.

On receipt of such an order EDC could be satisfied that a formal investigation has been commenced and a judge hasbeen satisfied that there are reasonable grounds to believe that a criminal offence has been committed and the information in thepossession of EDC will provide evidence relevant to that investigation. Such an

interpretation sets a reasonably high threshold for thedisclosure of EDC’s confidential information. It would not allow for the disclosure of the information simply upon request by theinvestigating police agency, as was urged by the Crown. [32] This

interpretation of the exception in s. 24.3(2) of the EDC Act requires EDC to provide any information in its possession,including confidential customer information, when required to do so under a valid order issued by a judicial officer. This places EDC in

the same position as all other financial institutions, which are required to comply with validly issued court orders. Conclusion [ 33 ] As EDC states in its submissions, statutes may have more than one purpose, and an examination of legislative history may not be the only way to determine the purpose. To quote Professor Sullivan in Sullivan on the Construction of Statutes , at p. 259, “interpretations that are consistent with or promote legislative purpose should be adopted, while

interpretations that defeat or undermine legislative purpose should be avoided.” In this matter, an

interpretation of s. 24.3 of the EDC Act that prevents disclosure of EDC customer information pursuant to a Criminal Code production order would have the consequence of providing EDC with a level of banking secrecy that is unknown in the Canadian financial industry. Such an

interpretation would run contrary to the stated purpose of the enabling statute, the Federal Accountability Act , and to the public interest. It is not an

interpretation that is consistent with a close reading of s. 24.3 of the EDC Act or with a consideration of its legislative context. [ 34 ]

Section 24.3 of the EDC Act was passed in the context of amendments to the Access to Information Act , and the evidence surrounding its enactment supports the view that the wording was intended to provide privacy protection to EDC clients in relation to access to information requests. The intention of the amendment to the EDC Act was to keep EDC on an equal footing with commercial financial institutions, not to create a level of secrecy that applied to EDC but no other financial institution. A close examination of the bilingual versions of the

section support the view that the meaning of the

section refers to an intention that EDC would continue to treat such information confidentially, not that a new category of class privilege would be created. [ 35 ]

Section 24.3 of the EDC Act sets a high threshold of confidentiality for information obtained by EDC in relation to its customers. Such information should not be disclosed to a police agency without a judicial authorization. However, once a production order or other judicially authorized process has been issued EDC can be satisfied that there are reasonable grounds to believe that an offence has been committed under the Criminal Code or any other Act of Parliament and that documents or data in the possession or control of EDC will afford evidence respecting the commission of the offence.

This satisfies the requirements of s. 24.3(2) that the material is being sought “for the purpose of prosecuting an offence.” EDC must comply with a valid production order issued pursuant to s. 487.014 of the Criminal Code . [ 36 ] This application is brought under s. 487.0193(4) (

b) of the Criminal Code . In the context of that section, the information sought from EDC does not fall within the category of what is “privileged or otherwise protected from disclosure by law”. As that threshold has not been met, there is no basis upon which the Order should be varied or revoked. Disposition [ 37 ] The Application brought by EDC is denied. The Production Order issued August 7, 2015 will remain in effect and EDC must comply with the Order. Released: February 3, 2016 “Original signed by …” Mr. Justice Robert Wadden