T-2643-93
B E T W E E N:
LOUISE MARTIN, ANDRE MARTIN and MICHEL MARTIN,
minors by their Litigation Guardian, Louise Martin
Plaintiffs
- and -
HER MAJESTY THE QUEEN, IN RIGHT OF CANADA,
BY HER MINISTER OF EMPLOYMENT AND IMMIGRATION,
AND THE ROYAL CANADIAN MOUNTED POLICE
Defendants
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
The motion before me seeks production of certain documents for which privilege has been claimed. Some of those documents deal with information in the hands of the police which the police have been reluctant to produce. Handwritten notes made by the police and official documents such as general occurrence reports, warrants for arrest, etc. are not subject to any privilege. The only privilege associated with the police, as such, is the privilege regarding the names of police informants which as a matter of public policy should be protected. That protection is not to preserve this flow of information from the police to governmental institutions but to protect police sources which will not be ordered revealed by the police or by any governmental institution to which they have been made known. Information generated by the police otherwise from informants is not subject to any kind of privilege and therefore questions 1 to 27 will be ordered produced.
With regard to the information forwarded to the Department by the solicitor for Susan Annette LeBeau-Phillip ("Susan") consists of two types of documents, those which would be privileged in her hands and those which would not. Documents such as letters from the solicitor acting for the other party in a matrimonial litigation are obviously not privileged. Information worked up by the solicitor for the purposes of the matrimonial litigation may well be privileged. What then is the situation when that privileged information is passed on to the Department. Those documents which were created by third parties at the request of Susan's solicitor for the purposes of her litigation with her former husband in the matter of visitation rights with the children of the parties and with regard to the family disputes and divorce were privileged. Incidental to those disputes it became possible that if these documents were supplied to the Immigration Department they might facilitate the deportation of the ex-husband and that would probably render the family matters moot. In Buttes Gas and Oil Co. and Another v. Hammer and Another (No. 3) [1981] 1 Q.B. 123, it was pointed that disclosure of privileged information to a person litigating for a similar interest was not a waiver of privilege. In Buttes Oil the common interest was the determination of the ownership of the same piece of seabed. It appears from the documents for which privilege is claimed that at the time the first alleged privileged information was sent to the Department, the Department was seeking to deport the husband. The interests by that time were the same. It is my view that if the information was privileged in the hands of Susan's lawyer, it is privileged in the hands of the Department.
I will now review the various documents. I intend to use the numbers in Schedule B.
Document 28 described as a letter is actually a facsimile cover sheet which has on it the usual statement with regard to the telecopy being solicitor-client privileged which I believe is seldom the case. This cover sheet covers, presumably, copies of certain documents, the first originating with Mary Martin's Children's Centre is I believe part of a case being worked up by Susan's lawyer. It was privileged at that time and is still privileged.
The documents labelled i and ii although produced through the agency of Susan's lawyer are letters from third parties to David Ashford, solicitor for the ex-husband. These are not privileged.
The next item number 30 is a facsimile cover sheet which contains the usual statement that it is solicitor-client privileged is patently not and can be produced.
The telephone message at 31 from Grace to Penny does not appear to be privileged and may be produced.
The scratch note at number 32 is a direction to require attaching to file document number i and ii.
Document i is a facsimile from Susan's lawyer to the Department merely indicating that a copy of a letter is enclosed. This facsimile of course bears the usual statement that the telecopy is solicitor-client privileged.
Item ii is a letter from MacDonald Evenden, Barristers, to Susan's lawyer and the lawyer for the husband. This is patently not privileged; therefore neither are 32 or i.
Item number 33, these documents may have been assembled by Susan's lawyer for the purposes of her litigation and therefore I consider them privileged in Susan's lawyer's hands and also in the Department's.
Item number 34 is a telephone message form prepared by the Department and therefore not privileged and should be produced.
Item 35 appears to have been prepared by a third party for Susan's lawyer for the purposes of litigation and is privileged.
Item number 36 is an affidavit which states that it was prepared for use in the Immigration hearing although it is styled between Susan as petitioner and Michael Philip as respondent. There's nothing to indicate to me why this affidavit would be privileged.
Item number 37 is a letter from Susan's lawyer to the Department, most of what's in it would probably be attainable from public records and it certainly does not appear to be privileged. It should be produced.
Item number 38 is a telephone message form indicating a call from the Department to Susan. It is not privileged.
Item number 39 is a letter from his lawyer to the husband. Only the husband can claim privilege is this document. It should be produced.
Item 40 is a message to the Department from Susan. It is not privileged and should be produced.
Item 41 is a facsimile cover sheet covering seven letters, none of which are privileged and should be produced.
Item 42 is a letter to the husband from his solicitor. Any privilege can only be claimed by the husband. This should be produced.
Item 43 is a telephone message form indicating that Susan's lawyer has called the Department. There is nothing to indicate anything in this message is privileged and it should be produced.
Item 44 is a letter from Susan's lawyer to the Department offering to produce witnesses against the husband. This letter is not privileged because there is no solicitor-client relationship. It should be produced.
Item 45 seems to be the same as the previous one and should be produced.
There is nothing privileged in Item 46 which is the Department's note of a consultation with Susan. It should be produced.
Item 47 is the Department's message form showing they have received a call from Susan. There is nothing privileged here. It should be produced. Item 48 is the same.
Item 49 is the internal memorandum of the Department. There is nothing to indicate who the persons are in this memorandum. If this is not seeking or granting internal legal advice within the Department, it should be produced. If it does involve legal advice then it is up to the Department to claim privilege.
Item 50 is an internal telephone form generated in the Department. It should be produced. Same with Items 51 and 52.
Item 53 is a police report and should be produced.
Items 54 and 55 appears to be documents used in the Ontario Court, General Division. If they were so used they will be available from the Ontario Court file. If they were merely drafts prepared by Susan's counsel, they will not be ordered produced.
Item 56 is a document concerning Michael Phillip and is apparently prepared for his lawyers. Only he can claim privilege. This document should be produced.
Item 57 is a pre-sentence report and should be produced.
ORDER
All of the documents listed in Schedule B are to be produced except the following documents: Items 28, 33, 35, 54, and 55.
"Peter A.K. Giles" A.S.P.
Toronto, Ontario
August 27, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2643-93
| STYLE OF CAUSE: LOUISE MARTIN, ET AL. |
- and -
| HER MAJESTY THE QUEEN, ET AL. |
DATE OF HEARING: DECEMBER 16, 1996
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
| AND ORDER BY: GILES, A.S.P. |
DATED: AUGUST 26, 1997
APPEARANCES:
Mr. David. G. Waites
For the Plaintiffs
Ms. Douglas O. Smith
For the Defendants
SOLICITORS OF RECORD:
LOU-ANNE F. FARRELL
LERNER & ASSOCIATES
Barristers and Solicitors
80 Dufferin Avenue
London, Ontario
N6A 1K4
For the Plaintiffs
George Thomson
Deputy Attorney General
of Canada
For the Defendants
FEDERAL COURT OF CANADA
Court No.: T-2643-93
Between:
| LOUISE MARTIN, ET AL. |
Plaintiffs
- and -
HER MAJESTY THE QUEEN, ET AL.
Defendants
REASONS FOR ORDER AND ORDER