Date: 20041222
Docket: T-1178-04
Ottawa, Ontario, this 22nd day of December, 2004
Present: MADAM PROTHONOTARY ARONOVITCH
BETWEEN:
DAVID STUCKY
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
ARONOVITCH P.
[1] In the context of a judicial review of the consent of the then Deputy Attorney General of Canada to prefer an indictment against the applicant, I am seized of a motion to adjudicate the objections of the Crown to the disclosure of documents which the applicant maintains are relevant to the underlying application.
[2] To understand the relative positions of the parties in this motion, it is useful to begin with a summary of the facts.
Facts
[3] On May 18, 2004, the then Deputy Attorney General of Canada ("Deputy Attorney General") was requested to, and pursuant to s. 577 of the Criminal Code, R.S.C. 1985, c. C-46[1], consented to the preferring of a direct indictment against the applicant, containing 16 counts alleging offences contrary to s. 52 of the Competition Act, R.S.C. 1985, c. C-34, including false and misleading representations, and misleading advertising.
[4] The applicant was not provided with notice or an opportunity to be heard with respect to the request made, by his officials, to the Deputy Attorney General.
[5] Thereafter, on June 18, 2004, the applicant issued an application for judicial review of the decision of the Deputy Attorney General alleging that the failure to provide the applicant with notice and an opportunity to be heard is a denial of natural justice and procedural fairness. The applicant seeks to have the decision quashed and referred back to the Deputy Attorney General, with directions to afford the applicant an opportunity to make submissions on the issue.
[6] The grounds for the application for judicial review are listed below:
"(2) The applicant was not provided with notice or an opportunity to be heard with respect to the request to the Deputy Attorney General of Canada. The applicant first learned of the decision on May 20, 2004;
(3) In July 2002, proceedings were commenced against the applicant that eventually came to include the same or similar counts to those included in the indictment. A preliminary inquiry with respect to those charges had been tentatively scheduled to commence in September 2004. The effect of preferring the indictment against the applicant is that he will no longer be able to discover the case against him at a preliminary inquiry;
(4) The failure to provide notice or an opportunity to be heard is a denial of natural justice and procedural fairness;
(5) Section 18.1 of the Federal Courts Act and Sections 7 and 24(1) of the Canadian Charter of Rights and Freedoms;..."
[7] In the context of the application, and pursuant to Rule 317 of the Federal Courts Rules[2], the applicant requested a certified copy of "all submissions and supporting material provided to Morris Rosenberg, Deputy Attorney General of Canada in support of the request for consent to the preferring of the indictment against the applicant."
[8] On July 23, 2004, Mr. James Sutton, counsel to the Competition Law Division of the Department of Justice, provided a Rule 318 certificate to the Court in response. The certificate was signed by Ms. Jane Allain, Senior Counsel for the Office of the Deputy Attorney General, who certified that the documents which were before the decision maker in the course of making the decision referred to in the application, other than the Federal Prosecution Service Deskbook, a public document, were the following:
"a) Her Majesty The Queen v. David Stucky, "Indictment" (18 May 2004), Superior Court of Justice of Ontario, signed by James D. Sutton, Senior Counsel, Competition Law Division, Department of Justice Canada (5 May 2004) and Morris Rosenberg, Deputy Attorney General of Canada (18 May 2004).
b) Memorandum For the Deputy Minister, "Direct Indictment Request" (5 May 2004), by James D. Sutton, Senior Counsel, Competition Law Division, Department of Justice Canada.
c) "Ravenshoe Disclosure Chronology Chart"
d) Memorandum For the Deputy Minister, "Request for Direct Indictment" (12 May 2004), by William H. Corbett, Senior General Counsel, Criminal Law Section, Federal Prosecution Service, Department of Justice.
e) Routing Slips (2)."
[9] Save for the two memoranda labelled "For the Deputy Minister," the above-noted documents have been produced to the applicant. As to the two memoranda, the respondent objected to their production on the grounds that they are: a) not relevant, b) subject to solicitor and client privilege, c) subject to public interest privilege, and d) subject to deliberative privilege.
[10] Ms. Allain is also the affiant for the purposes of the evidence tendered by the Crown in support of this motion.
[11] At the relevant time, Ms. Allain was responsible for coordinating the provision of material to the Deputy Minister of Justice for the purposes of his decision to sign the direct indictment dated May 18, 2004.
[12] She attaches to her affidavit excerpts from the Federal Prosecution Service Deskbook dealing with the decision to prosecute, and Chapter 17, dealing with direct indictments.
[13] Ms. Allain asserts that the memorandum from James D. Sutton, Senior Counsel, Competition Law Division in the Department of Justice, to the Deputy Attorney General, was a recommendation made in accordance with section 17.3.1 of the Federal Prosecution Service Deskbook
[14] The memorandum from William H. Corbett, Senior General Counsel, Criminal Law Section, Federal Prosecutions Service, Department of Justice, to the Deputy Attorney General, is stated by Ms. Allain to be a recommendation made in accordance with section 17.3.2 of the Federal Prosecution Service Deskbook about which more will be said shortly.
[15] Finally, Ms. Allain affirms that both memoranda constitute confidential legal advice from these lawyers in the Department of Justice to the Deputy Attorney General and then Deputy Minister of Justice, and that this advice has at all times been treated and retained as confidential.
Federal Prosecution Service Deskbook ("the Deskbook")
[16] A word about the Deskbook. It opens as follows:
This deskbook deals with matters of prosecution policy, and does not have the status of law. It does not in any way override the Criminal Code or any applicable federal legislation. It is not intended to provide legal advice to members of the public, nor does it replace the specialized advice of lawyers or other experts. It is not intended to create any rights enforceable at law in any legal proceeding.
[17] The Preface to the Deskbook states that "to ensure public confidence in the administration of criminal justice, prosecutorial discretion must be exercised in a way that is objective, fair, transparent and consistent." The Preface also notes the following:
The prosecution guidelines contained in this Deskbook are the instructions of the Attorney General of Canada to the prosecutors, in-house or agents, who act on the Attorney General's behalf before the criminal courts of this country. It is therefore essential that these guidelines receive broad distribution and that they be adhered to by all those acting on behalf of the Attorney General of Canada.
Issue
[18] The Crown has restricted its submissions on this motion to the following: the relevance, or from the Crown's point of view, the irrelevance of the two memoranda to the underlying judicial review, as well as their protection from disclosure by the application of the solicitor and client privilege, and public interest privilege or immunity.
[19] The single issue before me is whether the respondents objections to produce the memoranda submitted to the Deputy Attorney General were properly made.
[20] For the reasons that follow, I have concluded that the objections of the Crown to the disclosure of the internal memoranda are well taken on the grounds that the memoranda are not relevant to the underlying judicial review.
The positions of the parties
[21] I will begin with the positions of the parties in that regard.
[22] The parties share common ground as to the principal of general application regarding the relevance of documents on judicial review, enunciated in Canada (Human Rights Commission) v. Pathak, [1995] 2 F.C. 455 (Fed. C.A.), ("Pathak"), as follows:
"a document is relevant to an application for judicial review if it may affect the decision that the Court will make on the application. As the decision of the Court will deal only with the grounds of review invoked by the respondent, the relevance of the documents requested must necessarily be determined in relation to the grounds of review set forth in the originating notice of motion and the affidavit filed by the respondent". (my emphasis) [para. 10].
[23] In addition, says the applicant, subsequent decisions of the Federal Court have held that "what is relevant is what was before the decision maker when he was reaching his decision" and that disclosure of the record that was before the decision maker is "the usual rule"[3]; a proposition that the applicant says is consistent with the plain meaning of the language of Rule 317.
[24] It is important to emphasize, at this juncture, that the applicant limits his request and seeks disclosure only of the factual content of the memoranda. In keeping with the jurisprudence cited, he urges that the memoranda are relevant, and indeed of central importance to provide the full necessary factual background to his application.
[25] The applicant supports the underlying application by way of the affidavit of Ms. Sandra Jabar, Ms. Jabar attaches transcripts of proceedings in which the prospect of a preliminary inquiry in the applicant's criminal case was discussed as between the Crown, and counsel for the applicant. Ms. Jabar's evidence is in support of the allegations made in the notice of application, that a preliminary inquiry was tentatively scheduled to commence in September 2004.
Legitimate expectations
[26] It is argued on behalf of Mr. Stucky that the discussions regarding the scheduling of a preliminary inquiry resulted in his legitimate expectation that his case would proceed by way of preliminary inquiry. The applicant submits, on the authority of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, ("Baker"), that before the Crown acts in a manner that is inconsistent with these legitimate expectations, it must allow the affected party to make submissions.
[27] The applicant highlights the following passage from Baker:
"if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness".[para. 26].
where the Court also noted that:
"if a claimant has a legitimate expectation that a certain result will be reached in his or her case, fairness may require more extensive procedural rights than would otherwise be accorded" and that "the 'circumstances' affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights." [para. 26].
[28] In the particular circumstances of this case, the applicant says he had the following legitimate expectations with respect to the content of the memoranda which the Crown declines to disclose. First, that the Deputy Attorney General would be apprised of an objective assessment of the facts, on the basis of a complete and objective factual record, before consenting to a direct indictment. In addition, that the Deputy Attorney General would be advised that the applicant expected that the case would proceed by preliminary inquiry thereby providing him with an early opportunity to discover the Crown's case against him.
[29] In addition to the discussions with the Crown, the applicant claims the Deskbook as an appropriate and legitimate source upon which he based his expectations as regards the conduct of the prosecution, and as a measure for the respondent's compliance with the requirements of natural justice. In that regard, the applicant relies particularly on sections 17.1 and 17.3.1 of the Deskbook which state:
17.1 "This chapter outlines the criteria that will be applied by the Attorney General of Canada when determining whether to consent to the preferment of an indictment pursuant to this provision. It will also describe the procedure for Crown counsel and agents to follow when making a recommendation for a "direct indictment".
17.3.1 The Regional Director must ensure preparation of the following:
(a) a concise statement of facts sufficient to conclude that there is a reasonable prospect of conviction at trial and that the public interest requires a prosecution to be pursued. The statement must include the names of the accused, the charges and the evidence, the reasons for requesting a direct indictment and the date for which the indictment is required...
(b) a statement of the extent of disclosure already given to the defence or that will be given before trial;...
[30] The applicant takes the view that he is entitled to make submissions to the extent that the Deputy Attorney General was not apprised of all the facts necessary for him to properly provide his consent. He maintains that the content of the memoranda are relevant to this issue, as the facts contained therein will determine whether the prosecution has satisfied the applicant's legitimate expectations and the duty of fairness that attaches.
Prosecutorial discretion
[31] The Crown's principal argument, based on the guiding principles set out in Pathak, and other leading jurisprudence of the Court[4], is that the memoranda are not relevant for the court to determine the applicant's right, if any, to be heard in respect of the consent to the direct indictment.
[32] That said, the Crown also invokes the protection afforded by Canadian courts to prosecutorial discretion, in that, the courts will not inquire into the exercise of prosecutorial discretion absent a tenable allegation of "flagrant impropriety" or abuse of process.
[33] The respondent submits that the decision to prefer a direct indictment is an exercise of prosecutorial discretion. The Supreme Court of Canada has repeatedly confirmed the principle that the courts will not interfere with the exercise of executive authority, as reflected in the prosecutorial decision-making process. The Supreme Court has stated: "The court's acknowledgement of the Attorney General's independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant's decision - making process - rather than the conduct of litigants before the court - is beyond the legitimate reach of the court."[5]
[34] In the specific context of decisions to prefer a direct indictment, it has been held that:
The judicial and the executive must not mix. These are two separate and distinct functions. The accusatorial officers lay informations or in some cases prefer indictments. Courts or the curia listen to cases brought to their attention and decide them on their merits or on meritorious preliminary matters. If a judge should attempt to review the actions or conduct of the Attorney General - barring flagrant impropriety - he could be falling into a field which is not his and interfering with the administrative and accusatorial function of the Attorney General or his officers. That a judge must not to.[6]
[35] The Federal Court of Appeal has also found that "if the courts have any jurisdiction to review the exercise of prosecutorial discretion of the Attorney General, it will be only in cases involving flagrant impropriety."[7]
[36] The respondent submits that courts have repeatedly rejected challenges to direct indictments on procedural and constitutional grounds where tenable allegations of "flagrant impropriety" or abuse of process are absent.[8] As well, absent tenable allegations of prosecutorial misconduct, the courts have also refused to order the production of documentary evidence or the cross-examination of prosecutors respecting the exercise of prosecutorial discretion in various contexts, including the preferring of an indictment.[9]
[37] In addition to the limited and narrow grounds for inquiry, points out the Crown, there is the further requirement that a factual foundation be established for the allegations that are made. Thus, in Durette, an evidentiary inquiry into the circumstances surrounding a direct indictment was not justified without some proof suggesting a "tenable allegation of mala fides on the part of the Crown."
[38] The Crown argues that no allegation, much less evidence, of flagrant impropriety or abuse of process has been tendered by the applicant. Therefore, this Court has no basis to enquire into the substance of the material before the decision-maker, and the memoranda sought in this case are irrelevant and need not be produced.
[39] Both parties have cited Krieger, supra, on the issue of prosecutorial discretion, the Crown relying on the case to emphasize the breadth of the activities captured as constituting exercises of prosecutorial discretion which it says encompass the circumstances of this case. In its discussion of prosecutorial discretion, the Court noted in that case, "what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it." (my emphasis) [para. 47]. The Court did go on to say that "decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion."
[40] The applicant responds that the definition of prosecutorial discretion does not directly or functionally include the decision to consent to a direct indictment. The applicant also submits that, while it may be necessary to allege mala fides in the context of a judicial review of an exercise of core prosecutorial discretion, this application seeks to review neither an exercise of core prosecutorial discretion nor the Deputy Attorney General's actual decision to consent to the direct indictment against the applicant. This application only seeks to review the manner in which the Deputy Attorney General exercised his discretion; specifically, whether the facts before him regarding the applicant's case satisfied the Deskbook procedures.
[41] In that connection, the applicant relies on Manning v. Director of Public Prosecutions [2000] E.W.J. No. 2771, ("Manning") a decision of the U.K. High Court of Justice Q.B., involving the investigation of the death of an inmate and the subsequent application for judicial review, by the family of the deceased man, in respect of a decision not to prosecute an officer charged with his death. The Court's conclusion in that case was that the Prosecutor had erred in that he had not acted in a manner consistent with the requirements of the Code for Crown Prosecutors, a document much like the Deskbook at issue in this instance.
[42] Manning, is cited by the applicant as authority for the position that the failure of the prosecution services to follow its internal procedures can provide the basis, on judicial review, for an order quashing the ultimate decision not to indict. Manning also suggests that the failure to take relevant matters into consideration when objectively assessing the prospects of successful prosecution vitiates the decision - thus, Mr. Stucky's insistence that reviewing the substance of the memoranda at issue in this case is necessary to determine whether the procedure stipulated in the Deskbook was followed.
ANALYSIS AND CONCLUSION
[43] To do justice to the fulsome argument of the parties, I have provided a rather expansive review of their submissions as to the relevance of the memoranda in this judicial review.
[44] Having carefully considered them, I conclude on the basis of first principles applicable in the matter, that given the allegations and evidence in this judicial review, the memoranda are not relevant and need not be produced as they can not, in my view, be said to affect the decision that the Court will have to make on the merits.
[45] The issue raised in the applicant's notice of application, as cast, is the denial of the applicant's alleged rights to notice and opportunity to be heard when the Deputy Attorney General was asked to consent to the direct indictment.
[46] It is conceded by the Crown that the applicant was not given notice, nor provided an opportunity to make comment as to the consent.
[47] The applicant's challenge in the judicial review, by his own submission, is procedural, impugning a process that would preclude a right of response in the particular circumstances of Mr. Stucky's case. The substantive decision, by which I mean the decision itself to prefer a direct indictment, is said not to be at issue here.
[48] In such circumstances, I fail to see how consideration of the material that was placed before the Deputy Attorney General can be said to be relevant or necessary for the Court to determine whether, as alleged, the applicant was owed a duty to be given notice and an opportunity to make response.
[49] I am also not persuaded by the arguments of the applicant that the memoranda are made relevant on the basis of his legitimate expectations in this case.
[50] There are said to be two bases for the applicant's legitimate expectations. First, that the discussions with prosecutors would have given rise to a legitimate expectation of a preliminary inquiry which attracts a duty of fairness. Second, the legitimate expectation of the applicant based on the Deskbook, that the dictates of the Deskbook were properly followed, and that the facts placed before the decision maker were full and fair .
[51] To begin, the content or sufficiency of the information put before the Deputy Minister of Justice has not been challenged or in any manner placed at issue in this proceeding. There has been no allegation that the Deputy Attorney General, in this case, failed to take into account relevant considerations, took irrelevant considerations into account, or overlooked facts or evidence.
[52] The applicant has given no formal indication in his notice of application or evidence, that there may have been non-compliance with the Deskbook, or that there is any reason to doubt the factual sufficiency of the internal memoranda.
[53] In similar circumstances, the Court in Pathak declined to order production of an investigator's report to Mr. Pathak, in the following terms:
"The respondent seeks the production of all documents relied on by the investigator in preparing his report. There is nothing in the respondent's originating notice of motion, in his affidavit or in the other material before us that even casts a doubt on the accuracy or completeness of [the human rights officer]'s report. It follows that the grounds of attack invoked by the respondent in his originating notice of motion must be read and that the relevance of the documents requested must be assessed on the assumption that the report of the investigator is a faithful and complete summary of the evidence before him. On that basis, the production of the documents would clearly serve no useful purpose. (my emphasis) [para. 12]."
[54] There is, in sum, a threshold to be met to establish the relevance of a document, whether by reference to the grounds of the review or allegations regarding the contents of the document itself. That threshold is not met by the applicant in this instance.
[55] There is more to be said as to whether the expectations of the applicant are sufficient to make the memoranda relevant and exigible.
[56] I open a parenthesis here, to note a point that the Crown makes in that regard. Namely to the extent that the applicant maintains that the facts regarding the prospective preliminary inquiry ought to have been brought to the attention of the Deputy Attorney General, it may be delving into the substantive decision or exercise of discretion to prefer an indictment without a preliminary inquiry. As stated in R v. Charlie "Parliament intended, by this section [s. 577 of the Criminal Code] to confer upon the Attorney General or his Deputy the power to override the preliminary inquiry process... It is neither wise nor possible to circumscribe the power of the Attorney General under this section."[10]
[57] More to the point, the applicant, in my view improperly, wishes to use rights and duties that have yet to be determined, and are in question in this application, as a basis to establish the relevance of the two memoranda. The expectations that the applicant speaks of first have to be found by the Court to be legitimate expectations, sufficient in the circumstances to give rise to a duty by the Crown. In light of the pronouncement of the Court in Charlie supra, and in any case, the existence of a duty arising from legitimate expectations can not be presumed.
[58] In my opinion, the principle of legitimate expectations, as invoked, does not give rise to procedural rights, or rights of documentary production in advance of the Court defining the content of the duty of fairness, if any, that is owed to the applicant - the very question before the Court in the underlying review. Nor does the applicant require the facts put before the decision maker to make his case that he ought to have been given a right to comment as to their fullness and objectivity.
[59] Finally, though I take these to be ancillary as relates to the issue of relevance, I will deal briefly with the Crown's arguments based on the protection to be afforded to the exercise of prosecutorial discretion.
[60] For that purpose, I need not enter into issues of justiciability; whether the consent of the Deputy Minister of Justice is an exercise of "core" prosecutorial discretion or of statutory administrative decision making power.
[61] However, to the extent that the applicant relies on Manning for the proposition that the Court may query the extent to which the Deputy Minister complied with the requirement of the Deskbook, and says that the memoranda are made relevant by the authority of that case, my first comment is that the case is not authority in Canada. The applicant has not shown, and I am not aware, that Manning has been cited with approval or followed in Canada. In addition, the case must be distinguished on the important grounds that the law in England, as the Court stated it in Manning, is to the effect that decisions not to prosecute are reviewable. There was also no issue in that case concerning the production of internal memoranda. The documents in Manning were a matter of public record in the context of a public inquiry.
[62] There is Canadian jurisprudence, and the applicant makes the point, to the effect that the exercise of prosecutorial discretion is not absolute[11], that there is an obligation on the courts to ensure that the exercise of discretion conferred on the Attorney General by virtue of s.577 of the Code does not deny rights and freedoms enshrined in the Charter[12], and that the preferring of an indictment is subject to requirements of fairness and can be challenged where there is an abuse of process.[13]
[63] The principle I distill from these cases, however, is that there has to be some evidentiary basis or threshold of impropriety before the inquiry is undertaken or documents produced. This is similar to the threshold I take the jurisprudence governing requests pursuant to Rule 317 to have established by reference to the grounds of review and supporting evidence.
[64] Having concluded that the internal memoranda are not relevant to the underlying application for judicial review, I need not deal with the grounds of privilege raised by the Crown. An order will go accordingly.
"Roza Aronovitch"
Prothonotary
APPENDIX I TO REASONS FOR ORDER DATED DECEMBER 22, 2004
DOCKET NO.: T-1178-04
| Criminal Code, R.S.C. 1985, c. C-46 s. 577 In any prosecution, (a) where a preliminary inquiry has not been held, an indictment shall not be preferred, or (b) where a preliminary inquiry has been held and the accused has been discharged, an indictment shall not be preferred or a new information shall not be laid before any court without, (c) where the prosecution is conducted by the Attorney General or the Attorney General intervenes in the prosecution, the personal consent in writing of the Attorney General or Deputy Attorney General, or (d) where the prosecution is conducted by a prosecutor other than the Attorney General and the Attorney General does not intervene in the prosecution, the written order of a judge of that court.
Federal Courts Rules, 317.(1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested.
318.(1) Within 20 days after service of a request under rule 317, the tribunal shall transmit
a certified copy of the requested material to the Registry and to the party making the request; or a) where the material cannot be reproduced, the original material to the Registry.
(2) Where a tribunal or party objects to a request under Rule 317, the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection.
(3) The Court may give directions to the parties and to a tribunal as to the procedure for making submissions with respect to an objection under subsection (2).
(4) The Court may, after hearing submissions with respect to an objection under subsection (2), order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry. |
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Code criminel, L.R. (1985), ch. C-46
577. Lors d'une poursuite : a) si une enquête préliminaire n'a pas été tenue, un acte d'accusation ne peut être présenté;
b) si une enquête préliminaire a été tenue et que le prévenu ait été libéré, un acte d'accusation ne peut être présenté et une nouvelle dénonciation ne peut être faite, devant aucun tribunal sans :
c) le consentement personnel écrit du procureur général ou du sous-procureur général si la poursuite est menée par le procureur général ou s'il y intervient;
d) le consentement écrit d'un juge de ce tribunal si la poursuite n'est pas menée par le procureur général ou s'il n'y intervient pas.
les Règles des Cours fédérales,
317. (1) Une partie peut demander que des documents ou éléments matériels pertinents à la demande qui sont en la possession de l'office fédéral dont l'ordonnance fait l'objet de la demande lui soient transmis en signifiant à l'office fédéral et en déposant une demande de transmission de documents qui indique de façon précise les documents ou éléments matériels demandés.
318. (1) Dans les 20 jours suivant la signification de la demande de transmission visée à la règle 317, l'office fédéral transmet : a) au greffe et à la partie qui en a fait la demande une copie certifiée conforme des documents en cause;
b) au greffe les documents qui ne se prêtent pas à la reproduction et les éléments matériels en cause.
(2) Si l'office fédéral ou une partie s'opposent à la demande de transmission, ils informent par écrit toutes les parties et l'administrateur des motifs de leur opposition.
(3) La Cour peut donner aux parties et à l'office fédéral des directives sur la façon de procéder pour présenter des observations au sujet d'une opposition à la demande de transmission.
(4) La Cour peut, après avoir entendu les observations sur l'opposition, ordonner qu'une copie certifiée conforme ou l'original des documents ou que les éléments matériels soient transmis, en totalité ou en partie, au greffe.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1178-04
STYLE OF CAUSE: DAVID STUCKY v. THE ATTORNEY GENERAL OF
CANADA
PLACE OF HEARING: OTTAWA
DATE OF HEARING: DECEMBER 3, 2004
REASONS FOR ORDER : MADAM PROTHONOTARY ARONOVITCH
DATED: DECEMBER 22, 2004
APPEARANCES:
MARK FREIMAN FOR THE APPLICANT
MARCUS KLEE
JOHN TYHURST FOR THE RESPONDENT
JAMES SUTTON
SOLICITORS OF RECORD:
McCARTHY TÉTRAULT LLP FOR THE APPLICANT
TORONTO, ONTARIO
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA
[1] The text of section 577 of the Criminal Code is set out in an appendix to these reasons.
[2]Rules 317 and 318 are attached in an appendix to these reasons.
[3] Ecology Action Centre Society v. Canada (A.G.), [2001] F.C.J. No. 1588 at para. 6 (F.C.T.D.); Stevens v. Conservative Party Of Canada (2004), 248 F.T.R. 214 at para. 22 (F.C.T.D.).
[4]Telus Communications Inc. v. Canada (A.G.), [2004] F.C.J. No. 1587 (F.C.A.); Stevens, supra; Ecology Action Center, supra.
[5]Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372 at para. 32.
[6]R. v. Balderstone (1983), 4 D.L.R. (4th) 162 (Man. C.A.) at para. 28; cited with approval in R. v. Power, [1994] 1 S.C.R. 601 at para. 35.
[7]Quebec North Shore & Labrador Railway Co. v. Canada (Minister of Labour) (1996), 199 N.R. 161 (F.C.) at para. 3.
[8]R. v. Stolar (1983), 4 C.C.C. (3d) 333 (Man. C.A.); R v. Arviv (1985), 19 C.C.C. (3d) 395 (Ont. C.A.); R. v. Durette (1992), 9 O.R. (3d) 557 (Ont. C.A.) (reversed on other grounds); Re Saikaly and The Queen (1979), 48 C.C.C. (2d) 192 (Ont. C.A.); R. v. Ertel (1987), 35 C.C.C. (3d) 398 (Ont. C.A.); Balderstone, supra.
[9]Perks v. A.G. of Ontario, [1998] O.J. No. 421 (Ont. Gen. Div.);R. v. L.T.P., [2001] B.C.J. No. 1961 (B.C.S.C.) at para. 28; R. v. Malik, [2002] B.C.J. No. 3216 (B.C.S.C.) at paras. 29-30; R. v. Wilder, [2001] B.C.J. No. 2916 at paras. 32-40.
[10] (1998), 126 C.C.C.(3d) 513 (B.C.C.A.) at paras. 31-32.
[11] Perks, supra.
[12] R. v. Brown, [1997] O.J. No. 663 (Ont. Gen. Div.) at para. 13.
[13] R. v. Ertel (1987), 35 C.C.C. (3d) 398 (Ont C.A.).