SUPREME COURT OF Nova Scotia
Citation: R. v. Nova Scotia (Ombudsman), 2016 NSSC 273
Date: 20161013
Docket: Hfx No. 448012
Registry: Halifax
Between:
The Office of the Ombudsman of Nova Scotia
Applicant
v.
Her Majesty the Queen
Respondent
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Judge: |
The Honourable Justice Margaret J. Stewart |
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Heard: |
June 2, 2016, in Halifax, Nova Scotia |
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Counsel: |
Roderick (Rory) H. Rogers, Q.C., for the Applicant Jennifer A. MacLellan, Q.C., for the Respondent |
By the Court:
Background
[1] The Ombudsman investigated and prepared a report on alleged financial wrongdoing involving the Cumberland Regional Development Authority. The report recommended a forensic audit. The RCMP commercial crime unit then investigated certain individuals for possible criminal activities. During the investigation, the RCMP served the Ombudsman with a production order under s. 487.014 of the Criminal Code, which states, in part:
General production order
487.014 (1) Subject to sections 487.015 to 487.018, on ex parte application made by a peace officer or public officer, a justice or judge may order a person to produce a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document containing data that is in their possession or control at that time.
Conditions for making order
(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to believe that
(a) an offence has been or will be committed under this or any other Act of Parliament; and
(b) the document or data is in the person's possession or control and will afford evidence respecting the commission of the offence…
[2] The Ombudsman applied to revoke the production order, pursuant to s. 497.0193(4)(b), which states:
Application for review of production order
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.
…
Revocation or variation of order
(4) The justice or judge may revoke or vary the order if satisfied that
(a) it is unreasonable in the circumstances to require the applicant to prepare or produce the document; or
(b) production of the document would disclose information that is privileged or otherwise protected from disclosure by law.
[3] The Ombudsman relied in particular on the argument that the documents in question were “otherwise protected from disclosure by law” by virtue of ss 3(5), 16(1), 17(8), and 23(2) of the Ombudsman Act, RSNS 1989, c 327, which provide, respectively:
3(5) Before entering upon the exercise of the duties of his office the Ombudsman shall take an oath that he will faithfully and impartially perform the duties of his office and will not divulge any information received by him under this Act except for the purpose of giving effect to this Act.
…
16 (1) Every investigation under this Act is to be conducted in private.
…
17(8) Except on the trial of a person for perjury, evidence given by any person in proceedings before the Ombudsman and evidence of any proceeding before the Ombudsman is not admissible against any person in any court or in any proceedings of a judicial nature.
…
23(2) The Ombudsman and any person holding any office or appointment under the Ombudsman shall not be called to give evidence in any court or in any proceedings of a judicial nature in respect of anything coming to his knowledge in the exercise of his functions under this Act.
[4] Buckle Prov Ct J heard the application and ordered the production order to be varied, but not revoked.
[5] The Ombudsman seeks judicial review of Judge Buckle’s decision to vary, but not to revoke, the production order, along with quashing of the varied order itself, and mandamus. The Ombudsman says the judge erred in law in interpreting the relevant enactments.
The decision under review
[6] Judge Buckle set out three issues:
(1) the interpretation of the phrase “otherwise protected from disclosure by law” under s 487.0193(4)(b);
(2) whether a judge has discretion not to revoke a production order where the information is “otherwise protected from disclosure by law”; and
(3) if the judge does has discretion, does it have statutory limits and should it be exercised in this case.
[7] Despite the Crown’s concession that the information was “otherwise protected from disclosure by law”, Buckle Prov Ct J considered it necessary to the overall analysis to consider the interpretation of the phrase. She cited with approval R v Thomson Reuters Canada Ltd, 2013 ONCJ 568, and CTV v Canada (Attorney General), 2015 BCPC 65, for the proposition that this language is not limited to information subject to a case-by-case privilege, but includes information protected from disclosure by statute or common law:
… In my view it is broader than class privilege and could include case-by-case privilege, statutory and common law protection from disclosure, and circumstances including both absolute protection from disclosure, and partial protection. By “partial protection”, I mean circumstances where disclosure is prohibited in some circumstances but not all… (para 6)
[8] The judge elaborated on the concept of “partial protection” by reference to such categories as the doctor-patient relationship, where there is a duty of confidentiality but not an absolute protection from disclosure under a search warrant or production order; similarly, as an example of partial statutory protection she cited the protection of “personal records” under s 278.1 of the Criminal Code, which can be displaced if the test for production is met. The judge also noted that recognizing partial protection helped to maintain the distinction between material that was privileged and that which was “otherwise protected…”, and that it gave “impact to the power to vary an order rather than revoke it…”(paras 15-16 )
[9] Buckle Prov Ct J held that the Nova Scotia Ombudsman Act, RSNS 1989, c 327, did not provide “absolute protection on disclosure in all circumstances.” She also questioned whether the protections under ss 17(8) and 23(2) of the Act would apply in a criminal proceeding, in view of suggestions in case law that a provincial statutory rule of inadmissibility would not apply to a Criminal Code prosecution.
[10] The judge went on to the second issue: whether there is a judicial discretion to refuse to revoke a production order where the information has been found to be protected from disclosure by law pursuant to s 487.0193(4)(b). The section states that the judge “may revoke or vary the order…” The judge adverted to the general rule that “may” is permissive and usually connotes a discretion. She distinguished R v Newfoundland and Labrador (Citizens' Representative), 2013 NLTD(G) 134, [2013] NJ No 331, where the provision under consideration was an earlier version of s 487.015(4)(a) permitting the court to grant an application for exemption from a production order on the ground of privilege. In that case, the court interpreted “may” as requiring only a determination of whether the privilege existed. If it did, the court held, the exemption was mandatory. Judge Buckle distinguished the Newfoundland decision on the basis of the statutory language. She held that a judge has discretion to refuse to revoke a production order where the information is protected from disclosure by law.
[11] The third issue was whether there were statutory limits on the discretion under s 487.0193(4)(b). Buckle Prov Ct J held that “[t]he Ombudsman’s statutorily protected confidentiality must be balanced against the legitimate interests of law enforcement in investigating crime.” She identified eight considerations relevant to the balancing process: (1) the “unique role” of the ombudsman’s office, “including its purpose, mandate and statutory protections, and the rationale for those protections”; (2) the “level of sensitivity and confidentiality of the information”; (3) the “potential harm that might be done by production” to the ombudsman’s role and to those to whom the information relates; (4) the “recognized moral and sometimes legal duty of third parties to assist with criminal investigations”; (5) the “nature and seriousness of the crime under investigation”; (6) the “relevance and necessity of the information to the investigation and the impact of non-production on the investigation”; (7) “[w]hether the information sought is already known to the police or is available from any other source”; and (8) whether there are “conditions or restrictions that can be put in place to reduce the impact of an Order on the recipient.” The parties agreed that these were the appropriate factors to consider in the balancing exercise, though they disagreed on the weight to be accorded to the various considerations.
[12] Judge Buckle held that the ombudsman’s role, and “the legal protections relating to the confidentiality of investigations” are unique. She cited comments about the role of the ombudsman in Levey v British Columbia (Ombudsman) (1985), 11 Admin LR 108, [1985] BCJ No 1236 (SC), R v Paquin (1999), 26 CR (5th) 356, [1999] OJ No 3627, and British Columbia Development Corp v British Columbia (Ombudsman), [1984] 2 SCR 447, [1984] SCJ No 50. She also noted that it was relevant that the ombudsman was a “true third party” not an implicated party, which had been a relevant factor in quashing search warrants for media organizations (citing Canadian Broadcasting Corp v Lessard, [1991] 3 SCR 421, [1991] SCJ No 87.
[13] Judge Buckle went on to consider the level of sensitivity and confidentiality of the information. The documents involved financial dealing that would not likely include sensitive personal information. Much of their content, and some of the documents themselves, would have been obtained by other means by the police or the forensic accountant. The most sensitive documents, requiring continued confidentiality, would relate to the protection of the ombudsman’s office and its role: the judge accepted that “many individuals who contact the Ombudsman and agree to provide information, do so with the expectation and understanding that their information and the fact that they provided information will be kept private.”
[14] On the third consideration – the “potential harm that might be done by production” to the ombudsman’s role and to those to whom the information relates – Buckle Prov Ct J accepted the ombudsman’s claim that the ombudsman’s ability to perform its duties would be harmed if production was required, though she did “not go so far as to conclude that public confidence would be destroyed…”.
[15] Judge Buckle did not specifically comment on the fourth consideration, the duty to assist with a criminal investigation, but on the seriousness of the crime under investigation, she remarked that it was “a serious property crime” involving “an allegation of fraud on the public purse of more than $250,000, and that the “public interest in investigating and prosecuting such offences is high.”
[16] Moving to the “relevance and necessity of the information to the investigation and the impact of non-production on the investigation”, and the related question of whether the information was already known to the police, or was available from any other source, Judge Buckle noted that the evidence indicated that there may not be any documents in the possession of the ombudsman that did not exist elsewhere, and that most of the witnesses in question had been identified and had been interviewed – or could be interviewed – by the police. The main risk to the quality of the witnesses’ information was deteriorating memories due to passage of time, given that the ombudsman’s interviews had occurred some four years earlier. The judge found merit in the suggestion that information provided to witnesses by the ombudsman might have influenced their later statements to the RCMP. Cst. Ross, who gave evidence before the judge, believed that information from some of the interviews might include exculpatory information that would be relevant to his decision whether or not to lay charges. She was not satisfied, however, that the information sought was necessary to the investigation, or that the investigation would end if it was not produced. She accepted that parts of the information were significant.
[17] Finally, with respect to the possibility of imposing conditions or restrictions that could reduce the impact of the order on the recipient, Judge Buckle noted that all of the information at issue was “otherwise protected from disclosure by law.” Accordingly, the order could not be varied to exclude specific documents or information. However, because the information could still be useful without attribution, she held that it would be possible to shield the identities of those who cooperated with the ombudsman’s investigation, thereby reducing the negative impact on the ombudsman.
[18] The Crown placed a proposed amended production order before the judge. In her description, the effect of the original production order would have been to strip the ombudsman’s investigation of all statutory confidentiality. The proposed amended order, by contrast, required the ombudsman to produce a summary in response to questions provided by the police. This summary:
would not include direct or attributed quotes and would not identify anyone by name or position. The information would still be useful to law enforcement in determining whether there is potentially exculpatory information available that they have not yet discovered, in assessing whether information gathered by the RCMP to date is accurate, in determining whether witnesses need to be re-interviewed or new witnesses interviewed and would assist law enforcement in determining whether there are other avenues of investigation that need to be pursued including whether there are other agencies that are involved. (para 54)
[19] The judge concluded that only one aspect of the proposed varied order was excessive. That was the requirement for the ombudsman’s office to review the information in its possession, compare it to the content of Cst. Ross’s ITO for the original production order, and summarize any “differences” that had not been captured by the requests in the other categories. Judge Buckle held that, in addition to being “an enormous task” this directive was too vague, subjective and broad to be included in the order.
[20] Judge Buckle acknowledged the “unique role of the ombudsman”, and the importance of confidentiality to the office. She held, however, that:
In this case the information is not sensitive personal information and the Production Order can be varied so that it does not identify individuals. That significantly reduces any negative impact on the public’s confidence in the Office of the Ombudsman.
That limited negative impact must be balanced against the public interest in ensuring that law enforcement can investigate criminal allegations, particularly in cases of serious criminal allegations like the one here. The crime under investigation involves an allegation of a fraud on the public purse of more than $250,000. When assessing the competing interests, it is important to consider the potential impact on public confidence in the Office of the Ombudsman but also public confidence in the administration of justice. (paras 56-57)
[21] Judge Buckle concluded that she should not revoke the production order, but vary it to require the ombudsman’s office to produce a summary of information uncovered during its investigation “that would suggest knowledge that the Cumberland Regional Development Authority (CRDA) was submitting false or improper documentation for project claims”, and to produce the number of individuals from the Department who were interviewed or who provided statements.
Judicial review
[22] The Ombudsman seeks judicial review pursuant to s 774 of the Criminal Code (authorizing certiorari), as well as Civil Procedure Rules 7 and 64 (authorizing prerogative remedies in criminal matters by way of provincial rules of court). The grounds are as follows (I paraphrase):
(a) subsection 487.0193(4)(b) protects the material in the Ombudsman’s possession from disclosure so as to warrant revocation of the varied order;
(b) subsection 487.0193(4)(b) does not provide a judicial discretion to revoke or vary a production order so as to require production of information that is protected from disclosure by law;
(c) alternatively, if subsection 487.0193(4)(b) does provide judicial discretion to revoke or vary a production order requiring production of information protected from disclosure by law, the production order in this case should be revoked, not varied.
[23] Accordingly, the over-arching question relates to the interpretation of s. 487.0193(4)(b) of the Criminal Code – specifically, whether it permits variation in addition to revocation of a production order – and how that interpretation impacts on the present case.
Certiorari
[24] The parties agree that certiorari is available as a remedy for an alleged violation of third-party rights arising from a decision of a Provincial Court judge involving statutory interpretation.
Mandamus
[25] The Ombudsman alternatively seeks an order of mandamus. The basis for this claim is that the judge allegedly “refused jurisdiction constructively by making an error in law in the course of exercising [her] jurisdiction” which amounted to “a refusal of jurisdiction because it prevented the inferior court from performing its duty.” In R v Vasarhelyi, 2011 ONCA 397, [2011] OJ No 2238, leave to appeal refused [2011] SCCA No 470, the Ontario Court of Appeal commented on the scope of the mandamus power:
51 An order in lieu of mandamus may be granted to compel a court of limited jurisdiction to exercise a jurisdiction or discharge a duty, but not to compel the court, tribunal or official to exercise the jurisdiction or discharge the duty in a particular way.
52 Jurisdiction has to do with the authority to decide an issue or perform a duty, not the nature or correctness of the decision made... On subjects within its jurisdiction, if a court of limited jurisdiction misconstrues a statute or otherwise misdecides the law, the remedy to correct the legal error is an appeal from the final disposition, not an application for an order in lieu of the extraordinary remedies of mandamus or certiorari...
53 As a general rule, errors in the admission or exclusion of evidence are not jurisdictional errors... Further, errors in the application of the rules of evidence are not jurisdictional errors... The same may be said about errors in interpreting statutory provisions that are not jurisdictional in nature. [Emphasis added.]
[26] While the Ombudsman correctly notes that there is no appeal remedy available, counsel makes no attempt to establish that s 487.0193(4)(b) is a jurisdictional provision. As Lebel and Cromwell JJ noted in Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53, [2011] SCJ No 53, the law has retreated from “the extended definition of jurisdiction and restricted jurisdictional questions to those that require a tribunal to ‘explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter’” (Canada v Canada at para 18, citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, at para 59, and United Taxi Drivers' Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19, [2004] 1 SCR 485, at para 5). In my view, s 487.0193(4)(b) is not a true jurisdictional provision in this sense. There was no need for the judge to inquire into whether she had the power to consider the question before her.
Argument
[27] The Ombudsman says Buckle Prov Ct J misinterpreted s 487.0193(4)(b), which provides that the 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.” On the application, Crown counsel conceded that the information in question was “otherwise protected from disclosure by law” within the meaning of the section. The parties also agreed that the onus was on the appellant (the Ombudsman) to establish on a balance of probabilities that the production order should be revoked. The Ombudsman maintains that the judge’s decision to vary the production order was incorrect, arguing that the judge erred in law, or committed an error of law on the face of the record, in interpreting s 487.0193(4)(b).
[28] The Ombudsman Act, RSNS 1989, c 327, bars the Ombudsman from divulging “any information received by him under this Act except for the purpose of giving effect to this Act”: s 3(5). An investigation under the Act is conducted in private: s 16(1). More directly on point, ss 17(8) provides that “[e]xcept on the trial of a person for perjury, evidence given by any person in proceedings before the Ombudsman and evidence of any proceeding before the Ombudsman is not admissible against any person in any court or in any proceedings of a judicial nature.” This rule of inadmissibility in any court or judicial proceeding is supplemented by non-compellability, as provided in s 23(2): “[t]he Ombudsman and any person holding any office or appointment under the Ombudsman shall not be called to give evidence in any court or in any proceedings of a judicial nature in respect of anything coming to his knowledge in the exercise of his functions under this Act.” This is the principal basis for the Ombudsman’s position.
[29] The Supreme Court of Canada held in British Columbia Development Corp v British Columbia (Ombudsman), [1984] 2 SCR 447, 1984 CarswellBC 767 at para 46, that ombudsman’s legislation (in that case, the British Columbia statute) should “receive a broad, purposive interpretation consistent with the unique role the Ombudsman is intended to fulfil.” The Ombudsman argues that this principle demands a complete revocation of a production order respecting information in the Ombudsman’s possession.
[30] In R v Newfoundland and Labrador (Citizens' Representative), 2013 NLTD(G) 134, [2013] NJ No 331, the Citizens' Representative – the Newfoundland equivalent of the Ombudsman – had been ordered to produce complaint files pursuant to s 487.012 of the Criminal Code. The Representative applied to the Provincial Court judge who had issued the order, seeking an exemption pursuant to s 487.015, which then provided, inter alia:
Application for exemption
487.015 (1) A person named in an order made under section 487.012 and a financial institution, person or entity named in an order made under section 487.013 may, before the order expires, apply in writing to the judge who issued the order, or a judge of the same territorial division as the judge or justice who issued the order, for an exemption from the requirement to produce any document, data or information referred to in the order.
….
Exemption
(4) The judge may grant the exemption if satisfied that
(a) the document, data or information would disclose information that is privileged or otherwise protected from disclosure by law...
[31] The exemption permitted by s 487.015(4) was replaced by the “revocation or variation” power provided by s 487.0193, pursuant to CC 2014, c 31, s 20.
[32] The Provincial Court Judge dismissed the application for an exemption, and the Representative applied for certiorari quashing the dismissal order, or mandamus, directing the judge to grant the exemption. The Representative argued that the information was protected from disclosure by the Citizens' Representative Act, as well as by a common law privilege. The Provincial Court Judge had dismissed the exemption on both grounds.
[33] Hall J cited Levey v British Columbia (Ombudsman)(1985), 60 BCLR 101, [1985] BCJ No 1236 (SC) and R v Paquin (1999), 26 CR (5th) 356, 1999 CarswellOnt 2816 (Sup Ct J), each of which supported non-disclosure. The British Columbia legislation at issue in Levey imposed a duty of confidentiality, and provided for non-compellability, but there was no reference to a non-admissibility provision similar to s 17(8) of the Nova Scotia Act; s 34 of the Newfoundland Act does make such provision, however.
[34] The Ombudsman argues that Newfoundland and Labrador (Citizen’s Representative) should be followed here, on the ground that the statutory provisions in that case were “either identical to or directly analogous to the provisions of the Nova Scotia Ombudsman Act at issue in this case. In addition to the Newfoundland case, the Ombudsman cites Levey and Thomson Reuters v Canada, 2013 ONCJ 568, in support of a broad interpretation of the legislation. Like the Newfoundland case, Thomson Reuters involved the pre-amendment language of s 487.015, allowing an exemption from a production order. In the latter case, a media organization claimed an exemption on the basis of a privilege or of unreasonableness, and was unsuccessful on both grounds.
[35] The Ombudsman maintains that material that is “protected from disclosure by law” within the meaning of s 487.0193(4)(b) is entitled to absolute protection, and that it was therefore an error for the judge to find a partial protection subject to court discretion. The Ombudsman submits that the use of “may” in the provision (“may revoke or vary the order”) does not create a discretion. Rather, says the Ombudsman, it “simply allows for revocation or variation depending on the circumstances, i.e. whether the information is protected from disclosure by law (i.e. which must be revoked) constitutes portion or the entirety of the information sought in the Production Order…”. As in the Newfoundland case, the Ombudsman argues, “may” should be interpreted as “imperative in relation to revocation when the information sought is protected from disclosure by law.” The legislation in that case provided, inter alia, that the judge “may grant the exception if satisfied that” the document would disclose information protected from disclosure by law. Justice Hall’s view at para 53 was that “may” – in the earlier version of the Criminal Code provisions – did not create a discretion not to grant the exception, but simply allowed:
a fact finding exercise to determine whether in fact there is a privilege and that once found, the absolute statutory privilege in this case would govern. The interpretation of the word "may" with respect to the granting of the exemption in my view is to be interpreted as a mandatory "shall" directing the judge to grant the exemption. This interpretation is informed by subsection (c) of section 4. Obviously the court cannot order the production of a document, data or information that is not in the possession or control of the applicant. And therefore, in this context, the word "may" must be interpreted as "shall" thereby directing the court to grant the exemption and the court not having any discretion whether or not to grant such an exemption. Therefore, contrary to the conclusions of the Chief Judge of the Provincial Court, I am satisfied that the legislative privilege as established by the Citizens' Representative Act is absolute. There are no situations such as in the case at Bar, i.e. the prosecution of a criminal offence, the obtaining of necessary information to do so will outweigh confidentiality considerations established by the Citizens' Representative Act. Therefore, the analysis of statutory privilege and the statutory grounds for granting an exemption under section 487.015 of the Criminal Code vis-à-vis the Wigmore Test does not need to be conducted. The provisions of the Citizens' Representative Act do not create a mere privilege not to disclose which can be balanced with other factors as indicated in the fourth of the Wigmore principals [sic]. The processes of the Citizens' Representatives Act constitute a complete and absolute prohibition against disclosure of the information sought. This is not a mere privilege which is to be balanced against my other considerations… [Emphasis added.]
[36] The Ombudsman cites Sullivan for the proposition that the use of may does not exclude a mandatory meaning, if something in the statute or circumstances “expressly or impliedly obliges the exercise of the power” (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed.( Markham, Ont: LexisNexis, 2014) at §4.62). She goes on to observe that “may” and “shall” are not necessarily binary opposites – as implied, for instance, by interpretation statutes deeming “shall” to be imperative and “may” to be permissive – but may give rise to various legal effects depending on the purpose and context of the provision (Sullivan, supra, at §§4.59-60). She notes, for instance, that a power subject to a condition precedent is not necessarily designated as mandatory or discretionary based simply on the word used (Sullivan, supra, at §§4.61-62). The Ombudsman cites R v Lavigne, 2006 SCC 10 at para 27, where a discretion in a proceeds of crime provision was held to be “necessarily limited by the objective of the provision, the nature of the order and the circumstances in which the order is made.” Deschamps J added at para 28 that “may” should not be read as mandatory “unless such an interpretation is dictated by the context.”
[37] The Ombudsman submits that s 487.0193(4)(b) introduces revocation and variation as alternative courses of action, and the word “may” implies the obligatory exercise of revocation when information is protected from disclosure by law. There is no discretion, and no balancing analysis, but only the determination of whether a document is protected from disclosure by law. The power to vary, it appears from the Ombudsman’s argument, would only permit the court to remove protected information from a production order. The Ombudsman says the context demands that “may” be read as mandatory – the context, it appears, being the provision of “judicial oversight to ensure the protection of information protected from disclosure by law…”.
[38] The Attorney-General argues that the interpretation proffered by the Ombudsman reduces a two-stage analysis under s. 487.0193(4)(b) to the single determination of whether the information is privileged or protected from disclosure by law. The result, it is argued, is to render parts of the provision “meaningless and redundant.” Moreover, the result of such an interpretation would be to create an absolute privilege. As Judge Buckle said:
[33] … [I]n my view the protection against disclosure in the Act is partial protection. I reach this conclusion with a full appreciation of the role of the Ombudsman and the importance of statutorily protected privacy or confidentiality. However, there are other situations where the law recognizes that confidentiality and even privilege can give was to other important goals, including: solicitor/client privilege and informer privilege giving way when innocence is at stake; highly confidential records such as medical, psychiatric or therapeutic are subject to seizure by warrant or production order and can be ordered produced to the defence if necessary for full answer and defence; and, journalists can be required to disclose confidential sources. Whether it should be in this case or any other case, should be the subject of judicial balancing of the competing interests.
[39] As the majority held in Smith v Jones, [1999] 1 SCR 455, [1999] SCJ No 15 at para 51, a privilege – even solicitor-client privilege – is not absolute, and may be subject to defined exceptions. In oral argument, the Ombudsman seemed to accept that there might be circumstances – such as a risk to public safety – that could justify a discretion being read into the provision. This was inconsistent with the Ombudsman’s argument that the protection is absolute based on the language of the provision. The Ombudsman appeared to be presenting this as an alternative position, but elsewhere the Ombudsman appeared to accept that the factors Judge Buckle identified as being relevant to the exercise of discretion were reasonable ones. Yet this new alternative argument essentially accepts the existence of a discretion, but suggests that it should be based on different considerations. The Ombudsman argues that the Newfoundland decision should be read in this way; it seems to me that the Attorney-General is correct to reply in oral argument that Hall J’s description of an “absolute” privilege was in fact meant to be “absolute” – and that the reasoning leading to the creation of such an absolute privilege was flawed.
[40] The Attorney-General goes on to argue that the judge was correct in finding that she had discretion to revoke the production order after finding that the information was protected from disclosure by law. This returns us to the meaning of “may”, of which the judge said:
[27] The provision … says “The justice or judge may revoke or vary the order if satisfied that…” one of the subsections applies. On a plain reading of the current provision, the addition of the words “or vary” changes the available interpretations such that … it is impossible to interpret it in the manner submitted by … the Ombudsman. Even if I agreed that “may” should be interpreted as imperative, the section would then be interpreted as requiring a judge to “revoke or vary” if one of the subsections applies. I see no way to interpret the section as requiring a judge to revoke the Production Order upon a finding that one of the subsections applies. In other words, in my view, there is no reasonable interpretation that removes the judge’s discretion to either revoke or vary the order upon a finding that s. 4(a) or (b) applies. [Emphasis in original.]
[41] Thus, as the Attorney-General submits, “[i]f the word “may” is permissive, then the Judge has discretion to revoke, vary, or do nothing” with respect to the order. Accordingly, the judge was correct to decline to apply the Newfoundland case: on one hand, it was not binding; on the other; the change in wording made it inapplicable to s 487.0193(4)(b) in any event. Further, the Attorney-General notes, the word “may” has been read to indicate discretion in other aspects of the production order provisions of the Criminal Code (see: Canadian Broadcasting Corp v Manitoba (Attorney General), 2009 MBCA 122,at para 26 and R. v Vice Media Canada Inc.,2016 ONSC 1961, at para 8). This would be contrary to the presumption of consistent expression, which presumes that “the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings”(Sullivan, supra, at §8.32).
[42] In my view, Judge Buckle was correct in her interpretation of s. 487.0193(4)(b), both in finding that that information in question was “protected from disclosure by law” and in finding that the provision did not create an absolute prohibition against disclosure, but one subject to a balancing analysis.
[43] I do not believe there is a logical path to an interpretation that would deprive the court of discretion. The Newfoundland case – in addition to being non-binding – cannot simply be applied as if the statutory language had not changed. The use of “may” in this context would make no sense if the legislature’s intention was to remove any possible discretion; the meaning advocated by the Ombudsman would be accomplished clearly by substituting “shall revoke or vary” for “may revoke or vary.” If that were the legislature’s intention, using “shall” would indicate that the court is obliged to revoke or vary. The Ombudsman does not identify anything specific in the broader context that would point to an intention to create an absolute prohibition against disclosure arising by mandatory effect upon finding that one of ss (a) or (b) applies.
Effect of provincial inadmissibility laws
[44] The judge referred to R v Thompson (1972), 9 CCC (2d) 153 (Alta CA), for the proposition that a provincial statutory rule of inadmissibility will not necessarily render the evidence inadmissible for Criminal Code purposes. EG Ewaschuk, Criminal Pleadings and Practice in Canada (Westlaw) at §16:11157 comments that s.8 of the Criminal Code:
…incorporates the “common law” related to criminal matters unless repealed or altered federally. The common law prevails in a criminal matter over an inconsistent “provincial law”… Thus, a provincial law, mandating various preconditions to admissibility, does not apply to render the evidence inadmissible in a criminal matter.
[45] Counsel for the Attorney-General supplements Thompson with several other cases to the same effect (R v Camp, 1999 BCCA 708, and R v W(ML)(1996), 33 WCB (2d) 200 (Sask QB)), while noting that the Ontario Court of Appeal appears to make contradictory statements on the point in R v R(L)(1995), 100 CCC (3d) 329. In that case, the court held that a provincial statute could not alter the rules of criminal admissibility, but that their production could be governed by procedures in a provincial statute. This begs the question of the effect of a blanket provincial rule of inadmissibility, such as that provided by the Ombudsman Act. In any event, there seems to be no dispute that a provincial statute cannot determine admissibility for a Criminal Code offence.
FOIPOP
[46] The Ombudsman makes reference to the exception of records created by or in the custody of the Ombudsman from the Freedom of Information and Protection of Privacy Act, SNS 1993, c 5; see s 4(2)(e). This seems to me to be tenuous; this provision only confirms that Ombudsman’s records are not disclosable under the FOIPOP regime. It does not follow that such records are inadmissible in a court proceeding. As the Attorney-General points out, “the police were proceeding by way of a production order under the Criminal Code, not attempting a FOIPOP application.” FOIPOP has little or no relevance here, only serving to muddy the waters with irrelevance.
The Ombudsman’s alternative submission
[47] In the alternative, the Ombudsman argues that if s 487.0193(4)(b) of the Criminal Code does provide a discretion, then in this case the resulting balancing analysis should have led to revocation, rather than variation. The Ombudsman says the exercise of discretion should be reviewed on a correctness standard; the Attorney-General says reasonableness (which the Ombudsman offers in the alternative). I can see no principled argument in favour of a correctness standard being applied to a discretionary decision. The court said the following in R v REW, 2011 NSCA 18:
[33] In addition, in my view, where a trial judge is required to balance competing interests, some deference is appropriate (see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353). In carrying out the final analysis in determining whether a delay has caused a denial of an accused’s right to be tried within a reasonable period of time, a trial judge is required to balance the prejudice suffered by the accused with the public interest in seeing a trial on the merits. On this aspect of the analysis, assuming the trial judge has correctly identified the appropriate approach and considered the relevant factors, considerable deference is owed.
[48] Broadly speaking, the Ombudsman submits that the considerations identified by the Judge Buckle as being relevant to the exercise of discretion primarily weighed in favour of revoking the production order, given the importance of the Ombudsman’s role and the importance of confidentiality. The Ombudsman agrees that the significance of the information, and the possibility that it included exculpatory information, would have weighed in favor of allowing the order to stand, but not strongly. The Ombudsman further argues that the final consideration identified by the judge – the possibility of placing conditions or restrictions on the order to reduce its impact on the recipient – should only be considered if a decision is made based on the other factors. I would disagree on the final point; I see no reason why the potential conditions or restrictions that could be placed on an order should not factor into whether the order should be revoked or not. More broadly, I believe the Attorney-General is correct to argue that the judge’s balancing exercise (as reviewed earlier) was a reasonable balancing of the competing interests, and is entitled to significant deference.
[49] The Ombudsman disputes the judge’s description of the matter under investigation as a “serious property crime” and a “fraud on the public purse of more than $250,000.” The Ombudsman cites R v Paquin (1999), 26 CR (5th) 356, 1999 CarswellOnt 2816 (Ont Sup Ct J), where the court quashed two subpoenas served upon the Ontario Office of the Correctional Investigator in respect of an investigation of a bomb threat. The court said:
25 It is my opinion, also, that the public interest in fostering the integrity of the Office of the Correctional Investigator, as the Ombudsman for prisoners, and safeguarding this confidentiality and the independence of the Office, which the statutory régime directs, must prevail over the public interest in the prosecution of crime, in the circumstances of this case.
26 Moreover, it is my view, as Justice Reed so aptly said, in Kelly v. R. (1994), 32 C.R. (4th) 121 (Fed. T.D.) which was cited to me, s. 189 of the Corrections and Conditional Release Act,
... imposes a blanket rule of non-disclosure...
Therefore, Gervais and Cyr are neither competent nor compellable witnesses, I find, and the order sought, quashing the subpoenas issued and served on them, shall go.
[50] The Ombudsman says that “while fraud in the amount of $250,000 is not a petty crime, it pales in comparison to a threat of personal safety.” If this is a reference to the bomb threat in Paquin, it should be noted that in that case, the subpoenas related to evidence of a call the accused himself had allegedly made, and as a result of which he was facing charges; the subpoenas were for testimony in his trial. Moreover, there was no live safety issue, since the threat had been reported immediately after the call, and appropriate measures were taken. Moreover, the court emphasized the importance of a prison ombudsman, given the vulnerable position of prisoners. All things considered, the applicability of this case is dubious on the facts.
[51] In response to the claim that the judge overemphasized the seriousness of the offence, the Attorney-General submits that “this is not reflective of how the criminal law treats serious frauds over $250,000 or threats.” The charge in question in this case – under s 380(1)(a) of the Criminal Code – carried a potential penalty of up to fourteen years; by comparison, the offence in Paquin – s 264.1(1)(b) – carried a sentence of up to two years. In Parliament’s view, this offence is more serious than that in Paquin.
[52] The Ombudsman additionally argues that the information sought in the varied order may be available through other routes, such as an O’Connor application; and submits that there would be a “chilling effect” on the functioning of the Office of the Ombudsman as a result of a production order. Further, there is no ongoing criminal activity, and no imminent threat. As such, the Ombudsman says, the judge erred by ordering variation rather than revocation. The Attorney-General responds that a potential O’Connor application is no substitute for the police duty “to investigate and obtain relevant evidence prior to the laying of a charge.” Moreover, as Judge Buckle noted, it is conceivable that there might be exculpatory information in hands of the Ombudsman that might prevent charges from being laid in the first place. As to the Ombudsman’s claim of a “chilling effect”, the Attorney-General responds that “many other confidential relationships continue to exist although they do not involve absolute privilege.”
[53] In my view, the Ombudsman’s argument that Judge Buckle misapplied her discretion is a weak one. As noted above, Paquin is far from sufficient to persuasively establish that she overemphasized the seriousness of the offence. The other objections – alternative sources of information, a chilling effect on the Ombudsman’s functions – are ones that were considered by the judge in the course of her analysis, and found to be valid, but not to outweigh the arguments going the other way.
Conclusion
[54] The application for judicial review of the Provincial Court Judge’s decision to vary, but not revoke, the production order, along with the other relief sought, is dismissed.
Stewart, J.