In a decision released on October 17, 2014, the Supreme Court of Canada had a rare opportunity to consider s. 193 of the Criminal Code which makes it a crime to disclose or use an intercepted private communication without the consent of the originator or the intended recipient of the communication.

In Imperial Oil v. Jacques, 2014 SCC 66 the court upheld the ruling of a trial judge that allowed the plaintiffs in a class action to access government surveillance materials during civil discovery proceedings. The class action arose after an investigation into gasoline price fixing in Quebec which resulted in criminal charges against various companies and individuals. The plaintiffs launched a civil action to recover the oil profits and sought access to wire tap evidence collected by the Competition Bureau of Canada during its investigation. The court affirmed the order of the trial judge requiring the disclosure to be made relying on article 402 of Quebec’s Code of Civil Procedure, CQLR c. C-25 in conjunction with the exceptions to the protection of privacy in s. 193 of the Criminal Code.

The majority opinion written by Justice Louis LeBel and Justice Richard Wagner emphasized, at para. 28, that article 402 which enables courts to compel third party disclosure, has received “a large and liberal interpretation” and that the exercise of judicial discretion in its application will “generally favour disclosure”. The majority also concluded at para. 42ff that, while s. 193(1) of the Criminal Code prohibits disclosure of intercepted private communications, s. 193(2)(a) creates an exception where communications are disclosed, “…in the course of or for the purpose of giving evidence in any civil or criminal proceeding.” The majority concluded, at para. 47, that the disclosure sought by the plaintiffs fell within the exception and did not breach the defendants privacy.

In dissent, Justice Rosalie Abella emphasized the threat to privacy posed by the “extraordinary investigative technique” of wiretapping. She stated, at para. 98, that article 402 of the Code of Civil Procedure does not give a trial judge “carte blanche to order disclosure of communications protected by an almost impermeable legal coating” and “evidence gathered through electronic surveillance…is not amenable to a balancing contest”. She went on, at paras. 103 and 106, to make the point that litigants in a civil proceeding should not be able to use article 402 to circumvent the requirements of probable cause and investigative necessity. The trial judge in this case had ordered disclosure of intercepted private communications before their legality had been judicially determined.

In future cases the courts will be faced with defining the parameters of the disclosure contemplated by the majority opinion. There is always the potential for exposure of third party information in the context of electronic surveillance and the courts will have to address how those privacy interests will be protected. There is also a potential chilling effect which this new rule may have on whistleblowers who could be faced with disclosure of their identities.

I have had only one case where s. 193 of the Criminal Code arose. On a speedy trial motion in a case reported as R. v. Caines, 2010 ABQB 646 the applicants argued that delay was caused by the Crown’s late disclosure of information respecting how the police had implemented the wire tap authorizations. The Crown sought to introduce into evidence police wire tap records from a different prosecution five years previously. The purpose was to attempt to show that defence counsel had received the same disclosure in a previous case and therefore ought to have sought the information which constituted the late disclosure. Justice S.J. Greckol of the Court of Queen’s Bench of Alberta concluded, at paras. 38-41, that the prosecution did not establish that defence counsel had knowledge of, “…the very thing that is at the heart of the new disclosure such that he ought to have requested it.” She dismissed the Crown’s application because the wire tap records from the previous investigation were not relevant and she therefore did not have to consider the exceptions in s. 193 of the Code.