In what one legal expert calls an “extraordinary” move with implications for the principle of open courts, a Federal Court decision has been suppressed for nearly three months because government lawyers argue it contains too much information about a secret protocol between the RCMP and Justice Canada.
The protocol, lugubriously entitled “Principles to Implement Legal Advice on the Listing and Inspection of RCMP documents in Civil Litigation,” allegedly sets out procedures for access by Justice Canada lawyers to evidence obtained by the RCMP in criminal investigations that may be relevant in civil litigation involving the federal government.
The legal battle over the protocol pits the Information Commissioner of Canada, Suzanne Legault, against Justice Minister Rob Nicholson and Public Safety Minister Vic Toews.
It dates back to 2006, when the RCMP and Justice Canada refused to release a copy of the Dec. 21, 2001 protocol to Suzanne Boudreau, a 56-year-old former military prosecutor and justice department lawyer.
Boudreau had filed an access-to-information request to obtain the document for possible use in a civil case involving a high-profile pension dispute between former public servants and the federal government.
Citing solicitor-client privilege, the two agencies instead sent Boudreau a three-page document that was entirely blank except for the title, the date and the signatures of RCMP assistant commissioner William Lenton and assistant deputy attorney general James Bissell.
Boudreau filed a complaint with the information commissioner’s office, which concluded that the protocol was not covered by solicitor-client privilege. Rather, it found, the document was an agreement between the RCMP and Justice Canada, and should be released to Boudreau.
When the RCMP and the department of justice refused, the information commissioner filed an application in Federal Court in February 2011 to force the release of the document.
In a decision dated July 12 of this year, Federal Court Justice Mary Gleason — appointed last December — agreed with the information commissioner and ordered Nicholson and Toews to disclose the protocol to Boudreau.
Government lawyers immediately filed an appeal, and pending its outcome, Gleason agreed to stay her order releasing the protocol to Boudreau,
But the government also took the highly unusual step of asking Gleason to issue an order keeping her reasons for judgment confidential until its appeal of her decision is heard and decided — likely sometime next year.
Its lawyers argued that a number of paragraphs in Gleason’s July 12 decision revealed so much of the contents of the protocol that making it public would render their appeal moot.
Under the mistaken impression that the Legault had consented, Gleason granted that request on an interim basis. But in decision dated Aug. 21, she did not continue the interim order, stating that her reasons for judgment “contained very little discussion of the protocol or its background beyond what was already available on the public record.
“More importantly though,” Gleason added, “issuing the requested order would clearly violate the open courts principle, which requires that court files be public documents and that confidentiality orders be issued only when they are clearly required to protect important interests.”
Gleason ordered that her July 12 decision and associated reasons be placed in the Federal Court’s public file and on its website, as is routinely done with all decisions.
For about a week, her full decision was publicly available. Federal Court administrators even sent a copy to Boudreau.
But a few days later, Nicholson and Toews tried again. They appealed Gleason’s Aug. 21 decision to the Federal Court of Appeal and sought — and received — an interim confidentiality order from Court of Appeal Justice Karen Sharlow.
Sharlow’s interim order says that, pending final disposition of the government’s motion, Gleason’s reasons for judgment:
- are not to be placed in the Federal Court’s public file, or if they have already been placed there, are to be removed;
- are not to be placed on the Federal Court’s website;
- are not to be publicly disclosed in their unredacted form.
So once again, Gleason’s decision has been hidden from public view, and will remain so until the Court of Appeal rules on the government’s motion to suppress it. That decision could come soon — Johanne Gauthier, the appeal court judge who will rule on the motion, has received final written submissions from both parties.
If Gauthier grants the confidentiality order and the government is ultimately successful in its appeal, Gleason’s full decision may never be made public.
The lengthy suppression of Gleason’s July 12 decision is “highly unusual, if not extraordinary,” says Adam Dodek, vice-dean of research in the University of Ottawa’s faculty of law.
“The entire basis of our judicial system is that hearings and all judicial matters are open to the public except in exceptional circumstances, and that judges render decisions that are public and should be accessible to the public,” he says.
Public disclosure, Dodek says, is the primary means of holding judges accountable for their decisions. Without it, “you can’t hold judges to account and question the decisions that they make.”
Ed Ratushny, an emeritus professor of law at the University of Ottawa, agrees that the way Gleason’s decision has been withheld “does have significant implications” for the open courts principle.
According to case law, any restraint “should be as strict as possible and for as short a time period as possible,” Ratushny says. “This does seem like an unusual decision to me.”
Boudreau — who has still not seen the protocol — says the mere existence of such an agreement between the RCMP and the justice department raises serious questions of privacy and due process.
Parties to civil actions who want to see evidence gathered in criminal investigations normally have to apply to a Superior Court judge if there’s any dispute about production.
The requirement is set out in Section 490 (15) of the Criminal Code, and the procedure was fleshed out in a 2004 Ontario Court of Appeal decision known as D.P. v. Wagg, which balanced the public’s interest in promoting the administration of justice through full disclosure and production against its interest in maintaining confidentiality over some materials.
Boudreau fears the government may be using the protocol as a “backdoor” means of obtaining civil production of information gathered during a criminal prosecution, effectively circumventing the law.
The department of justice — and Nicholson in his role as attorney general — are supposed to uphold the laws of Canada, Boudreau points out. The existence of the protocol suggests they may not doing so when it comes to the disclosure of material gathered by the RCMP, she says. “If these guys aren’t following the law, then the whole system doesn’t work.”
The protocol may also mean that any material seized by the RCMP during a criminal investigation is potentially available to anyone in government, with implications for personal privacy, Boudreau says. “How scary is that?”
Boudreau’s interest in the protocol is more than theoretical. She was one of about 200 public servants who left their government jobs more than a decade ago to work for one of three private consulting firms: Cryptic Web, Loba and AMB.
They made the move in large part because they thought they could transfer their government pensions to their new private-sector employers in a novel but legal way that would increase their value.
Government bureaucrats later decided that the pension transfer was not legitimate, mostly because they concluded there wasn’t a genuine employment relationship between the former public servants and their new employers. Sylvain Parent, the Ottawa actuary who came up with the transfer scheme, was charged with fraud in 2001, but all charges were dropped in 2004.
The dispute spawned several lawsuits as former public servants sought to recover losses caused by the bureaucrats’ refusal to approve their pension transfers.
The key decision in the civil actions came in 2008, when Ontario Superior Court Judge Catherine Aitken found that federal officials had lied, withheld key information and provided the impetus for the unwarranted RCMP investigation of Parent.
In her exhaustive 418-page ruling, Aitken found the government officials liable for “negligent representation” because they failed to warn eight former Loba employees that they had serious concerns about the pension transfer.
The judge ruled that the government should bear 80 per cent of the responsibility for the $3.4 million in economic losses claimed by the eight former Loba employees, with Parent responsible for 20 per cent. That was later reduced to a 60-40 split on appeal, but all other findings in Aitken’s judgment were upheld.
Earlier this year, Parent settled his own $160-million lawsuit for malicious prosecution in a confidential out-of-court agreement.
Though Boudreau has not been a party to the lawsuits, she has provided legal help to some litigants. And, she says, government lawyers in the civil suits “seemed to have access to everything from the criminal investigation.”
She suspects that they used the disputed protocol to gain access to material seized by the RCMP during its ill-advised criminal investigation of Parent. Yet government lawyers made no mention of the protocol during the case heard by Aitken, she says.
Boudreau says it’s an “interesting coincidence” that the protocol is dated Dec. 1, 2001. That’s the day after charges were laid against Parent, and nine days after the RCMP executed search warrants in the case.
She stopped short of saying the protocol was developed because of anticipated civil litigation in the pension case, though she added: “To me, it’s a red flag.”