Gagnon, Marcotte, Sansfaçon

Appeal from a judgment of the Superior Court rendered in the course of a proceeding that dismissed a joint application for the disclosure of documents. Allowed.

The respondents, Sûreté du Québec police officers on loan to the Unité permanente anti-corruption, instituted an action in defamation against the appellants, alleging that the appellants had falsely identified them as the source of leaks of confidential documents. The appellants filed a request for disclosure of third party records. The trial judge had to proceed solely on the basis of the sufficient relationship test set out in article 251 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.), since the issues concerning the production of documents were to be examined at a later date. The judge found that the requested documents were irrelevant, since the debate would not focus on the veracity of the suspicions or insinuations conveyed by the media, but rather on the manner in which they handled the information obtained.

The judge erred in stating that [translation] “regardless of whether the information about the respondent’s involvement in the disclosure of confidential information was true or false, what [mattered was] the [appellants'] adherence to journalistic standards” (para.  15). In this case, even if the veracity of the defamatory remarks was not the decisive factor, it is relevant to the analysis of the appellants’ fault, especially considering the allegations in the respondents’ application, which expressly claim that the appellants published false information about the police officers’ conduct during their investigation.

The judge also erred when he stated that [translation] that "there [was] reason to question the need for the media to obtain the police investigation file" (para. 18). Relevance is assessed based on the usefulness of the document whose disclosure is sought, rather than the need for disclosure. Furthermore, the fact that the appellants had the respondents' testimony from other contexts did not prevent them from establishing the relevance of the documents they requested so that they could verify the basis of the allegations in the application when the veracity of the contents of their publications was at issue. Last, the appellants’ fault must be analyzed while considering various elements, such as veracity, falsity, and public interest, in light of the information surrounding the investigation held by the police officers that has been made available.

The other reasons the judge invoked for refusing the application for disclosure were unrelated to the analysis of the sufficient relationship test. He therefore could not examine the appropriateness of disclosure without breaching procedural fairness for the appellants, who were not given the opportunity to debate the issue in full knowledge of the facts. Moreover, his observations on the unlawful nature of the disclosure to the media conflicted with certain well-established principles of investigative journalism and the protection of journalistic sources.

Since the documents requested appear to be related to the allegations contained in the application for defamation and appear a priori likely to advance the debate by enabling the appellants to defend themselves, they satisfy the sufficient relationship test under article 251 C.C.P., bearing in mind that the concept of "relevance" is generally assessed broadly during the exploratory stage of the proceedings. Accordingly, the case must be returned to the Superior Court so that it may decide the second stage of the debate and determine which of these documents should be disclosed.

Legislation interpreted: article 251 C.C.P.

Text of the decision: http://citoyens.soquij.qc.ca