PRACTICE |
Discovery |
Production of documents |
Stucky v. Canada (Attorney General)
T-1178-04
2004 FC 1769, Aronovitch P.
22/12/04
22 pp.
Motion to adjudicate Crown's objections to disclosure of documents within judicial review application--Upon request Deputy Attorney General consenting to preferring direct indictment against applicant, containing 16 counts alleging offences contrary to Competition Act, s. 52--Applicant not provided with notice, opportunity to be heard regarding direct indictment request--Prior to obtaining respondent's consent to prefer direct indictment, prosecutors discussing scheduling of preliminary inquiry in applicant's case--Judicial review alleging failure to provide applicant with notice, opportunity to be heard, constituting denial of natural justice, procedural fairness--Also alleging scheduling of preliminary inquiry resulting in legitimate expectation case would proceed by preliminary inquiry; that affected party having right to make submissions--Under Federal Courts Rules, s. 317, applicant requesting certified copy of material provided to Deputy Attorney General of Canada in support of request for consent to preferring of indictment--Respondent producing all documents before decision maker in course of making decision except two memoranda labelled "For the Deputy Minister"--Claiming those memoranda not relevant, subject to solicitor-client privilege (constituting confidential legal advice), public interest privilege--Memoranda recommen-dations made in accordance with Federal Prosecution Service Deskbook, prosecution guidelines for criminal cases-- Document relevant to application for judicial review if potentially affecting decision Court will make on application --Judicial review challenging process precluding right of response in particular circumstances--Memoranda not relevant to determination of whether duty owed to applicant to give notice, opportunity to respond--Also not relevant on basis of legitimate expectations--Applicant improperly seeking to use rights, duties yet to be determined as basis to establish relevance of two memoranda--Court must first find expectations legitimate, sufficient in circumstances to give rise to duty by Crown--Principle of legitimate expectations not giving rise to procedural rights, rights of documentary production in advance of Court defining content of potential duty of fairness owed to applicant--Applicant relying on Manning v. Director of Public Prosecutions, [2000] 3 W.L.R. 463 (Q.B.D.) as authority for position failure to follow internal procedures basis, on judicial review for order quashing ultimate decision not to indict--Manning not authority in Canada, distinguishable--Canadian case law holding exercise of prosecutorial discretion not absolute, must respect Charter rights, preference for indictment subject to requirements of fairness--Before inquiry undertaken, docu-ments produced, must be evidentiary threshold of impropriety still needed--Similar to threshold established by reference to grounds of review, supporting evidence by cases governing requests for material under Rules, s. 317--Motion dismissed-- Competition Act, R.S.C., 1985, c. C-34, ss. 1 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 19), 52 (as am. by S.C. 1999, c. 2, s. 12)--Federal Courts Rules, SOR/98-106, ss. 1 (as am. by SOR/2004-283, s. 2), 317 (as am. by SOR/2002-417, s. 19), 318.