Bich, Mainville, Hamilton
Appeal from a judgment of the Superior Court granting an application for the disclosure of documents. Allowed in part. Application de bene esse for leave to appeal. Dismissed.
The appellant appeals from a judgment of the Superior Court ordering it to disclose certain documents to the respondents in pre-trial disclosure. These documents relate to an investigation, carried out under the supervision of the director of criminal and penal prosecutions, whose objective was to determine the circumstances that delayed the disclosure of evidence in the SharQc file. The trial judge concluded that the information at issue was not covered by professional secrecy or any other privilege attached to confidentiality to be set up against legal proceedings and that, moreover, it met the requirements for pre-trial disclosure. The dispute also raises a procedural question concerning the conditions for the exercise of the right to appeal.
Procedurally, an appeal as of right on a question of professional secrecy, provided for under paragraph 1 of art. 31 of the Code of Civil Procedure (CQLR, c. C-25.01) (C.C.P.), includes the appeal as of right of any alternative grounds raised by the appellant because they are grounds relating to a single objection. The interpretive balance weighs in favour of this conclusion, which is more in line with the objectives of simplification of civil procedure and economy of resources. The appellant, therefore, need not have solicited the leave required under paragraph 2 of article 31 C.C.P. with regard to his alternative grounds.
On the merits of the appeal, the information the judge ordered disclosed did not fall under the lawyer’s professional secrecy. The investigation and report were not prepared or written in connection with or preparation for a professional consultation, but were instead an administrative step. Assuming that these documents had been protected by professional secrecy, this privilege was waived. Indeed, the fact that the report was published resulted in an explicit and unequivocal waiver of professional secrecy and, more generally, of the confidentiality of the information collected by the investigators that was used to write the report summarizing that information. In the circumstances, the confidentiality undertaking made by the investigators cannot be set up against the courts in the context of this legal proceeding, especially since the trial judge took the proper protective measures. The order to disclose respects the principles and objectives of pre-trial disclosure of evidence, including in that the evidence at issue could be admissible at trial, on certain conditions, to be established in time. However, the identity of the lawyers assigned to the SharQc case without ever appearing before the courts need not be disclosed because, at this point of the proceedings, and even in the larger context of pre-trial disclosure, the usefulness of this information has not been proved. Their names will have to redacted from any documents sent to the respondents. The appeal is allowed solely with regard to the disclosure of the identity of these lawyers.
Legislation interpreted: first and second paragraphs of art. 31 C.C.P.
Text of the decision: Http://citoyens.soquij.qc.ca