Unofficial English Translation
R. c. Dubé
2010 QCCA 1377
COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
MONTREAL REGISTRY
NO:
DATE:
500-10-004454-094
(700-36-000713-080)
July 28, 2010
CORAM: THE HONOURABLE JULIE DUTIL J.A.
NICOLE DUVAL HESLER J.A.
JACQUES A. LÉGER J.A.
HER MAJESTY THE QUEEN
APPELLANT – Respondent
v.
NORMAND DUBÉ
RESPONDENT – Applicant
JUDGMENT
[1]
THE COURT; – On the appeal from a judgment rendered on September 2, 2009,
by the Superior Court, Criminal and Penal Division, district of Terrebonne (the
Honourable Fraser Martin), which dismissed the Crown’s objection, based on section
37(1) of the Canada Evidence Act, to the disclosure of a police investigation report it
held and ordered the Crown to remit a copy thereof to the respondent;
[2]
After having examined the file, heard the parties, and on the whole deliberated;
[3]
For the reasons of Léger J.A., with which Dutil and Duval Hesler JJ.A. concur;
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[4]
PAGE: 2
DISMISSES the appeal with costs.
JULIE DUTIL J.A.
NICOLE DUVAL HESLER J.A.
JACQUES A. LÉGER J.A.
Mtre Érika Porter
Criminal and penal prosecuting attorney
For the appellant
Mtre Christian Desrosiers
Desrosiers Joncas Massicotte
For the respondent
Date of hearing:
June 17, 2010
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REASONS OF LÉGER J.A.
[5]
The Crown appeals from a judgment of Fraser Martin J. which dismissed its
objection to the disclosure of an investigation report and ordered the Crown to remit a
copy thereof to the respondent. The issue at the heart of the appeal is whether section
37(1) of the Canada Evidence Act1 (“CEA”) applies in order to prevent the disclosure of
the investigation report to the respondent.
BACKGROUND
[6]
The respondent claimed to have been the victim of a brutal arrest on May 10,
2006, by a municipality of Terrebonne police officer, who allegedly entered his private
property illegally. On October 20, 2006, he filed a complaint against said police officer,
which gave rise to an investigation by the Saint-Jérôme police. After the investigation,
however, the Crown refused to lay criminal charges against said police officer.
[7]
Charges of dangerous driving, false imprisonment, obstruction and assaulting a
peace officer were, however, laid against the respondent. On June 22, 2007, at the end
of his preliminary hearing, he was acquitted on all of said charges by François Landry J.
of the Court of Quebec.
[8]
With said judgment and with the Crown’s persistent refusal to lay criminal
charges against the police officer, the respondent, on August 20, 2008, instituted a
private criminal prosecution under sections 507 and 507.1 of the Criminal Code. A preinquiry was held on October 23, 2008, but ended abruptly because of a stay of
proceedings (nolle prosequi) ordered by the Crown (section 579 Cr. C.) The respondent
then filed a motion for certiorari against the stay of proceedings and filed an application
for disclosure of evidence under sections 7 and 24(2) of the Canadian Charter of Rights
and Freedoms2 (the “Charter”) to obtain a copy of the investigation report and of the
legal opinions of the Crown attorneys concerning the appropriateness of laying criminal
charges against the police officer.
[9]
In a first judgment, rendered on June 19, 2009, Fraser Martin J. refused to order
the disclosure of the legal opinions, but ordered the Crown to remit to the respondent a
copy of the police investigation report.
1
2
R.S.C., 1985, c. C-5.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to
the Canada Act 1982 (U.K.), 1982, c. 11.
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[10] On June 25, 2009, the Crown responded by filing against said order an objection
to the disclosure on the grounds of a specified public interest, as provided in section 37
of the CEA. The same judge heard said motion, which he dismissed on September 2,
2009. It is this judgment that is the subject of the appeal.
JUDGMENT UNDER APPEAL
[11] The Crown claimed that the disclosure of a police investigation report is, in itself,
contrary to the public interest when the objective is to control the Crown’s decision to
order a stay of proceedings. The judge concluded that there were no grounds of a
specified public interest in evidence other than the disclosure itself. He observed that
the Crown should have normally filed a declaration under oath identifying the grounds of
a specified public interest contained in the investigation report 3 and said that he himself
found no such grounds in said report, which he had examined.
[12] The trial judge pointed out that the Crown’s objection to the disclosure, without
any particular grounds of a “specified public interest”, had every appearance of being a
disguised appeal from his first judgment of June 19, 2009.
[13] He said that the respondent's application for disclosure of evidence must be
considered on its own facts, because the good faith of the Director of Criminal and
Penal Prosecutions (“DCPP”) is at issue, and that consequently the respondent is
entitled to the fruits of the police investigation just as he would have been had the
charges against him resulted in a hearing. He went on to say:
[12]
There may be authority for the proposition that the Director, in certain
circumstances may have an interest pursuant to art. 37. The specified public
interest as you have both outlined this morning may concern a number of things.
It could include police informer privilege, police investigative matters, questions
of informer privilege, or any of the matters set out in section 187(4) of the
Criminal Code. Examples might be the identity of a confidential informant, or the
issue of an ongoing investigation, to simply mention a few.
…
[15]
… I sympathize to some degree with the Director but I think he is reading
too much into the decision itself. I think the decision is particular to the
circumstances which are before the Court in the Petition in Certiorari filed by Mr.
Dubé. I would certainly anticipate that it would be applied very restrictedly in any
other set of circumstances.
3
See section 37 of the Canada Evidence Act.
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[14] The trial judge consequently dismissed the objection and ordered that the
investigation report held by the Crown be disclosed to the respondent within
seven (7) days, unless a stay is ordered by the Court of Appeal.
GROUNDS OF APPEAL
[15]
The Crown raises the following grounds of appeal:
1. Did the judge err in concluding that there were no grounds of a
specified public interest?
2. Did the judge err in law in concluding that the objection under section
37 CEA should have been filed at the same time as the respondent's
application for disclosure of evidence?
3. Did the judge err in law in not finding “anything in the case at bar that
can be argued as having any federal dimension whatsoever attached to
it”?
4. Did the judge err in law in holding that section 37 CEA cannot generally
be invoked by a provincial prosecuting attorney?
5. Did the judge err in law in mentioning the absence of an affidavit,
thereby suggesting that the objection under section 37 CEA required the
filing of an affidavit?
6. Did the judge err in law in ordering that the Crown had to obtain a stay
order from the Court of Appeal to avoid having to comply with the
disclosure order?
RELEVANT LEGISLATIVE PROVISIONS
Canada Evidence Act
37. (1) [Objection to disclosure of information] Subject to sections 38 to
38.16, a Minister of the Crown in right of Canada or other official may
object to the disclosure of information before a court, person or body with
jurisdiction to compel the production of information by certifying orally or in
writing to the court, person or body that the information should not be
disclosed on the grounds of a specified public interest.
…
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(4.1) [Disclosure order] Unless the court having jurisdiction to hear the
application concludes that the disclosure of the information to which the
objection was made under subsection (1) would encroach upon a
specified public interest, the court may authorize by order the disclosure of
the information.
(5) [Disclosure order] If the court having jurisdiction to hear the application
concludes that the disclosure of the information to which the objection was
made under subsection (1) would encroach upon a specified public
interest, but that the public interest in disclosure outweighs in importance
the specified public interest, the court may, by order, after considering both
the public interest in disclosure and the form of and conditions to
disclosure that are most likely to limit any encroachment upon the
specified public interest resulting from disclosure, authorize the disclosure,
subject to any conditions that the court considers appropriate, of all of the
information, a part or summary of the information, or a written admission of
facts relating to the information.
…
(7) [When determination takes effect] An order of the court that authorizes
disclosure does not take effect until the time provided or granted to appeal
the order, or a judgment of an appeal court that confirms the order, has
expired, or no further appeal from a judgment that confirms the order is
available.
…
37.1 (1) [Appeal to court of appeal] An appeal lies from a determination
under any of subsections 37(4.1) to (6)
…
b) to the court of appeal of a province from a determination of a trial
division or trial court of a superior court of the province.
(2) [Limitation period for appeal] An appeal under subsection (1) shall be
brought within 10 days after the date of the determination appealed from
or within any further time that the court having jurisdiction to hear the
appeal considers appropriate in the circumstances.
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ANALYSIS
1. Did the judge err in concluding that there were no grounds of a specified public
interest?
[16] Since the trial judge refused to disclose the legal opinions, as requested by the
respondent, the only matter to be adjudicated on in the present appeal is the disclosure
of the police investigation report held by the Crown. It may be appropriate to weigh the
interests involved and allow only partial disclosure, in accordance with section 37(5)
CEA.
[17] Essentially, the Crown maintains that the trial judge erred in law in failing to
recognize that the police investigation report itself is a document of public interest and in
concluding that there was no specified public interest to prevent disclosure to the
respondent under section 37 CEA.
[18] According to the Crown, said disclosure would impair its independence and its
impartiality, as well as the exercise of its discretionary power to decide whether or not to
lay criminal charges or order a stay of proceedings. It also argues that there is no public
interest in the case at bar favouring disclosure of the report in question which outweighs
the specified public interest not to disclose.
[19] With respect, I cannot accept this position. As the trial judge clearly explained,
there are no grounds of a specified public interest in the case at bar to support immunity
from disclosure under section 37 CEA.
[20] First, the Crown seems to be confusing the notion of grounds of a specified
public interest with the DCPP’s discretionary power to control criminal prosecutions,
including a stay of proceedings, in the public interest. In any case, such discretionary
power would not create a class privilege of immunity from disclosure of information
supporting a Crown decision.
[21] Moreover, we must consider the meaning to be given to the terms chosen by the
legislator in this particular act. Under the heading “Specified Public Interest”, the
legislator chose in section 37 to use the term “information” rather than “document” to
describe what may be an objection to disclosure. A document refers to the medium
containing the information, while information refers to the content, i.e. the elements of
knowledge concerning a person or an event.
[22] Of course, in many circumstances, grounds of a specified public interest may
justify an objection to the disclosure of various types of information. But the Crown is
asking us to go further by ruling that the exercise of its discretionary power constitutes
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in itself a specified public interest protecting the confidentiality of said exercise. Ruling in
its favour would mean that one could never examine a decision not to disclose
information, which would not constitute the exercise of discretionary power in all
circumstances.
[23] Furthermore, I must emphasize that in the case at bar, it is not the exercise of
said power that is at issue: that matter must be adjudicated on the merits of the motion
for certiorari. The judgment appealed from concerns only a preliminary application
whereby the respondent seeks to obtain disclosure of the investigation report on his
own complaint against a police officer in order to establish the prejudicial nature of the
nolle prosequi that is the subject of his complaint.
[24] Therefore, the discretion that the trial judge had to exercise concerned only the
nature of the requested information. In short, he had to determine if there was, in the
documents whose disclosure was requested, information such as grounds of a specified
public interest justifying their non-disclosure, such as the identity of an informant, police
investigation methods, or other security sensitive information. In other words,
information that warrants protection for valid reasons, which must be demonstrated by
the Crown.
[25]
Moreover, the relevant case law has generally considered that an investigation
report is not in itself a document whose confidentiality is in the public interest. For
example, on the question of disclosure of a police report, the Ontario Court of Appeal
wrote as follows:4
19
Cromarty J. held that the statements given to the police were entitled to the
protection of "class" privilege to prevent the prosecution of criminal offences from
being compromised by premature disclosure. This being so, he felt relieved of
any obligation to peruse the statements in order to determine whether any or all
of them should be excluded. In my respectful opinion he erred in concluding that
the statements were privileged from production as a "class" and in failing to
consider whether the "contents" of all or part of the statements might be
admissible.
20
The authorities establish that statements given to the police have never
been regarded as falling within the class of documents automatically privileged
for production. There is, of course, an obvious reason for caution in disclosing
the contents of any document in the possession of police but this has never been
accepted as a reason for excluding such documents as a class, as Lord Upjohn
explained in Conway v. Rimmer at p. 995:
4
Smerchanski v. Lewis; Smerchanski v. Asta Securities Corp., [1981] O.J. No. 2906 (Ont. C.A.); see
also: Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, The Law of Evidence in Canada,
3d ed. (Markham: LexisNexis, 2009) at 1075.
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Here let me turn to police reports which play some part in the last
document before your Lordships for which privilege is claimed. No
one can doubt that a police report dealing with a suspected crime
or with matters which might be of conceivable use to the
underworld must be privileged, but for my part I think privilege
should be claimed under the "contents" side if in fact the
documents could be of the slightest use to the underworld. No one
would want to hamper the police in any way but I cannot see what
harm can be done to them by disclosing a document which either
does not or no longer assists in the apprehension of a wrongdoer
and does not disclose any relevant police information, procedures
or activities of interest to the underworld.
So I think that if privilege is claimed for a document upon the
ground of "class," the judge, if he feels any doubt about the reason
for its inclusion as a class document, should not hesitate to call for
its production for his private inspection, and to order its production
if he thinks fit.
21
Lord Reid in Conway v. Rimmer dealt more specifically with the privilege to
be accorded to documents which "might be material in a pending prosecution" in
the following passage at pp. 953-4:
The police are carrying on an unending war with criminals many of
whom are today highly intelligent. So it is essential that there
should be no disclosure of anything which might give any useful
information to those who organize criminal activities. And it would
generally be wrong to require disclosure in a civil case of anything
which might be material in a pending prosecution: but after a
verdict has been given or it has been decided to take no
proceedings there is not the same need for secrecy.
(Emphasis added.)
22
It seems to me that in this passage Lord Reid has merely made the
sensible observation that even greater caution must be used in deciding whether
to disclose documents material to a pending prosecution. This, as he points out,
is a sound general rule but its application in any case must depend upon the
proper exercise of the discretion of the Judge. There is no established rule of law
which accords automatic protection from production as a "class" to the
statements given to the police in issue in this case.
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[26] In addition, the Supreme Court has already recognized that “a claim that a
document should not be disclosed on the ground that it belongs to a certain class has little
chance of success”.5
[27] It is the content of the document that requires confidentiality under section 37 CEA,
not the document itself. The trial judge was therefore right in observing that in the case at
bar, the Crown had not made any argument in respect of the content of the investigation
report.
[28] The Crown insists that the judgment appealed from constitutes a “dangerous
precedent” and fears that investigation reports will be too easily disclosed to third
parties. But that is not the problem. For an objection to disclosure to be sustained, the
person who made the application must have a right to access to the document, whether
under the Charter or under the Act respecting access to documents held by public
bodies and the Protection of personal information.6
[29] In many cases, the party concerned will simply not be entitled to disclosure of the
investigation report and the question of a ground of “specified public interest” justifying
an objection to disclosure will not arise. The concern about a dangerous precedent is
not in any way justified here, considering the objective of section 37 CEA.
[30] What is particular in this case is that the disclosure initially sought by the
respondent under sections 7 and 24(2) of the Charter was ordered by the first judgment
of Martin J. on June 19, which judgment is not the subject of the present appeal.
[31] Another particularity of the case at bar is that the Crown seeks confidentiality of a
document whose content could have been fully disclosed during the respondent’s
hearing and which likely could be in the course of the respondent’s civil case, which was
instituted on October 23, 2006, and is still pending.
[32] It is recognized that the Crown has the discretionary power to lay charges or to
order a stay of proceedings, but as the respondent rightly pointed out, this power is
neither absolute nor exempt from judicial control. It is hard to imagine how the court
seized of the motion for certiorari can determine whether the Crown’s discretion is being
exercised in a prejudicial manner if the information contained in the investigation report
on which it based its decision is not disclosed. The respondent rightly maintains that the
fruits of the police investigation do not belong to the prosecution.7
5
6
7
Carey v. Ontario, [1986] 2 S.C.R. 637 at 655.
R.S.Q., c. A-2.1.
R. v. Stinchcombe, [1991] 3 S.C.R. 326 at 333: “I would add that the fruits of the investigation
which are in the possession of counsel for the Crown are not the property of the Crown for use in
securing a conviction but the property of the public to be used to ensure that justice is done”.
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[33] The trial judge was right to conclude that there was no specified public interest
that would protect the confidentiality of the police investigation report and to dismiss the
Crown’s objection. Consequently, the first ground of appeal is dismissed.
[34] The Crown has conceded that, in the event that the right to disclosure is upheld
in the present case, there is no need to weigh the interests concerned, except in respect
of the nominative information concerning certain witnesses. Consequently, it is neither
necessary nor useful to go on to the next step under section 37(5).
[35] A reading of the transcript of the hearing of September 2, 2009, shows that the
Crown argued especially for recognition of a specified public interest justifying the
confidentiality of an investigation report that resulted in no charges being laid. The
Crown also sought to protect the privacy of information concerning the police officer,
once the decision not to prosecute was made. The Crown recognized, however, that
this ground of a specified public interest conflicted with other grounds of a specified
public interest favouring disclosure, including the need to provide the judge with all the
information required to adjudicate on the motion for certiorari. It is with this in mind that
the Crown asked the trial judge to place certain conditions on the disclosure:
[TRANSLATION]
... accept these representations that I am making to you this morning which are,
in fact, to recognize the need to sustain the objection, while providing a way to
disclose the report in the case at bar in the event that said disclosure is ordered,
considering the respondent’s very special situation.
Framed this way, I believe the decision will satisfy the respondent, without having
any future repercussions on the right to disclosure of evidence.
So this is what I am asking you, your Honour, this morning, and this what I had...
I had for you; so I am going... I am at your disposal.8
[36] This proposal was reiterated at the appeal hearing. Although attractive in theory,
it cannot be sustained. After all, how can it be determined if grounds of a public interest
favourable to disclosure of information outweigh those favourable to confidentiality, in
accordance with section 37(5) CEA, if the Crown refuses beforehand to identify the
information concerned?
[37] The dismissal of this first ground of appeal makes it neither necessary nor useful
to adjudicate on the other grounds of appeal, which were not really discussed either at
trial or on appeal.
8
F.A., vol. 3 at 703.
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* * * * *
[38] I would here like to briefly discuss a Supreme Court judgment rendered on the
day of the appeal hearing, Ontario v. Criminal Lawyers' Association,9 which deals with
the disclosure of a police investigation report and of legal opinions. Each of the parties
submitted a note to the Court in this regard.
[39] This Supreme Court judgment followed a stay of proceedings in a murder trial in
which a judge found many instances of police misconduct. A police investigation was
then requested and conducted, finally exonerating the police officers. The Criminal
Lawyers' Association (“CLA”) was concerned about this unsupported ruling and
requested disclosure of the investigation report under Ontario’s Freedom of Information
and Protection of Privacy Act10 (“FIPPA”). Said act provides for the possibility of refusing
to disclose a “report prepared in the course of law enforcement, inspections or
investigations by an agency which has the function of enforcing and regulating
compliance with a law”11 without, however, providing an obligation to verify if the public
interest in disclosure outweighs the grounds for maintaining confidentiality. The
Supreme Court had to determine whether section 2(b) of the Charter12 (freedom of
expression) had been violated.
[40] It held that there had been no such violation, ruling that the Ontario legislator’s
decision not to make documents under sections 14 and 19 of FIPPA subject to the
section 23 public interest override did not violate the right to free expression guaranteed
by the Charter.
[41] The question at issue here is different. The present appeal concerns only the
Crown’s objection to the disclosure of “information”13 which by its nature is confidential
on the grounds of a “specified public interest”. The trial judge concluded that there was
no specified public interest.
[42] In addition, no one raised before the Court the right to freedom of expression
and, as already mentioned, the first judgment ordering the disclosure of the
investigation report was not appealed.
[43] Furthermore, in Ontario, the applicant was a third party not involved in the
dispute. Here, conversely, the respondent is directly concerned.
[44] It should be pointed out that under FIPPA, a ministerial non-disclosure decision
may be reviewed by the Commissioner, whose decision is in turn subject to review by
9
10
11
12
13
Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23.
R.S.O. 1990, c. F-31.
Supra note 10 at para. 22.
See supra note 2.
See section 37 CEA.
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the higher courts,14 which is why the Supreme Court returned the case to the
Commissioner for reconsideration.
[45]
I therefore propose that the appeal be dismissed with costs.
JACQUES A. LÉGER J.A.
14
See paras. 66, 68 and 70 of Ontario, supra note 9.